What Is That Weird Lawyer Ad About? (to your immediate left on the screen)

What is that weird lawyer ad  with the guy pointing at me about (to your immediate left on the screen)?

For weeks now I have been planning to figure out - what is this weird ad with the lawyer on all the liberal blogs about? Well, the Wall Street Journal beat me to the punch (click here for full article).

Basically this add is a spoof by a phone company (Alltell) to generate "buzz" about the compnay by discussing a satirical lawsuit against it.

While this is likely not the smartest ad campaign, the fact that being sued is used as a publicity stunt speaks to a perception of the public's negative reaction to lawyers and lawsuits.

The add satirically describes the lawyer involved in the suit as having dedicated his legal career to satire suits like:

Increasing national standards for elasticity in gentlemen's dress socks by almost 17%.

Fighting for lick-less postage stamps.

Suing his doctor for his "innie" belly button

In a nutshell, this add is an attempt to gain attention by satirizing the legal community and lawsuits.

Although this add -  just seems stupid,  it message feeds into a larger movement by some corporate interests to make you devalue your right to go to court to hold corporations accountable for very real acts of misconduct.

If the add annoys you - visit it - it will cost Alltell money - just don't sign up for their sevice afterwards.

If you or your organization is interested in learning more about or working on these types of civil justice issues, please feel free to contact me at cdugger@drummajorinstitute.org.

Cyrus Dugger
Senior Fellow in Civil Justice
Drum Major Institute for Public Policy

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Notice to Sexually Predatory Landlords - It's Legal to Sexually Harass Your Tenants

Imagine an [18 year old] single woman of limited means living with her two children in an apartment complex. The resident manager would like to go out with her or, to put it less euphemistically, would like to have a sexual relationship with her. Initially, he approaches the matter subtly by complimenting the woman on her appearance and offering to do special maintenance favors for her. Eventually, he asks her out. When she refuses, he becomes verbally hostile, calling her a "tease" and a "bitch." Thereafter, he threatens to evict her unless she has sex with him. The threat is not carried out, but the manager is now unpleasant in his exchanges with the tenant. She tries to avoid seeing him around the apartment complex, but when he comes to her unit to collect the rent, he often makes crude or sexually suggestive remarks such as "you could make this pay day so much nicer for both of us."

Do the nation's fair housing laws prohibit any or all of what the manager has done in this situation?  

To date, the courts have generally answered "no."

 
- Robert G. Schwemm & Rigel C. Oliveri, Article: A New Look at Sexual Harassment under the Fair Housing Act  

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Tort Victim Tragedies: Second Edition - Texas

Welcome to Tort Victim Tragedies.

Each week I will highlight the case of an injured person who was (or likely will be) denied full justice because of changes made to state law by the national anti-civil justice movement (aka the "tort reform" movement).

Unknown to most Americans, their right and their ability to access the courts are under assault from what is truly a mass movement by business interests to shield themselves from liability for their misconduct.

This "tort reform" movement frames its agenda as reasonable reform geared to protect corporations from what they describe as frivolous lawsuits which drive up the cost of business, and ostensibly hurt the state's economy.

In most of my posts, I will be addressing the fallacies of the anti-civil justice movement arguments. However, every Tuesday, I will do something unique and perhaps unprecedented.

One of the strengths of the anti-civil justice movement is its ability to put the spotlight on specific ludicrous sounding lawsuits in order to characterize the entire civil justice system as "out of control."

As I've described before in my previous post "Why You Should be Able to Sue McDonald's if You Spill Coffee on Yourself," and as I will continue to describe, often these characterizations distort and re-tell critical aspects of these cases which would otherwise support a finding that they were not frivolous.

One organization has a representative list of said spotlights.  

This constant media barrage of outrageous lawsuits has shaped the public opinion against the very civil justice system which protects us.

As a response to this anti-civil justice media barrage, each week I will highlight the other side of this coin: the real victims who are left without access to full justice because of the effects of the laws pushed through the state legislatures by the anti-civil justice movement.

Please join us each week to read incredibly sobering stories regarding the effects of the anti-civil justice movement on real people's lives and families.

The second week highlights a case from Texas.

The names have been changed to protect the privacy of the victim and her family. Sadly, however, the story is true.

While in a San Antonio hospital receiving treatment for diabetes, Margaret developed a high fever and infection in her leg because health care workers neglected to remove a catheter. Doctors told her they would have to amputate her leg.

Margaret's daughter, Carol, insisted on a second opinion, but it was too late. Doctors had already amputated her mother's leg only to find the radical procedure was not necessary. Margaret lost her leg for no reason...

...The epidemic of medical malpractice has injured Margaret twice -- once when her leg was needlessly amputated and again when radical legal changes enacted at the behest of insurance industry lobbyists stacked the deck in favor of those who harmed her.

- N. Alex Winslow, Executive Director of Texas Watch

(click here for the full article)

Texas recently enacted a non-economic damage cap of $250,000 for all medical malpractice suits against individual doctors or practitioners. The legislation means that regardless of the jury's determination of the amount of compensation that should be paid to the victim for her pain and suffering for the unnecessary loss of her leg, as well as for the loss of the leg itself, the judge must reduce the reward to $250,000 (if it exceeds this amount).
For people who are not working or who are making low wages, the primary compensation that they will receive will be from non-economic damages, the very damages that are capped by the law. The imbalance most affects people like stay at home mothers, children, or retired elderly persons.

Case in point, the victim in this case was an elderly woman living in a nursing home who had no salary to speak of. As a result, aside from the medical expenses surrounding the treatment of her leg, this woman can only receive $250,000 from the responsible doctor or practitioner (unless the court grants rarely awarded puntive damages)

Imagine if this were you, and all that you got aside from payment of your additional medical expenses and compensation for your lost wages from the responsible person was $250,000?

The "tort reform" movement's aggressive agenda to limit access to the courts has real consequences for real people. Ironically, Texas is ranked by a supporter of these types of restrictions as the state with the  "best" civil justice system.

Please help resist these reforms.

To contact an organization in Texas workng on these issues, click here.

If you or your organization is interested in learning more about or working on these types of civil justice issues, please feel free to contact me at cdugger@drummajorinstitute.org.

Cyrus Dugger
Senior Fellow in Civil Justice
Drum Major Institute for Public Policy

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US Government Says: Don't Sue So Much - Don't Worry We Won't Either - That Way Nobody Will

A letter from Representatives Waxman and Conyers released Monday shows that US Attorney Offices have been under-funded to the extent that the it is affecting the outcomes of civil and criminal cases. Some offices even lack basic office supplies.

An excerpt of the letter is below.

Dear Mr. Attorney General:

We are writing to express our concern that U.S. Attorney offices across the nation are suffering from staffing shortages and lack of funds The consequences appear to be severe. According to Assistant U.S. Attorneys, the lack of staff and resources force federal prosecutors to forego prosecutions in some important cases and to reach plea bargains in others. In some offices, there are shortages of even basic office supplies, like binder clips and envelopes.

Over the last month, our staffs have interviewed Assistant U.S. Attorneys in their individual capacities and gathered information about a dozen U.S. Attorney offices around the country. The picture that emerges is unsettling. U.S. Attorneys have the crucial responsibility of prosecuting federal crimes and pursuing civil enforcement actions. Yet it appears that their ability to meet this responsibility has been severely undermined.

Staff and Supply Shortages

U.S. Attorney offices across the nation are severely understaffed. Due to hiring freezes, experienced prosecutors who leave for the private sector are not being replaced. In several key offices, 20% or more of prosecutor positions remain unfilled.

In Los Angeles, there are 190 positions for Assistant U.S. Attorneys. Forty of these are vacant. The District of Columbia also has 40 Assistant U.S. Attorney positions unfilled, and Maryland has 30. In Chicago, there are 25 to 35 vacancies for 160 Assistant U.S. Attorney positions. Smaller offices are under-staffed in similar proportions. U.S. Attorney offices in Oregon and Arizona each have eight to ten vacancies among about 40 prosecutor positions.

In addition to the reduction in personnel, U.S. Attorney offices lack funding for essential items like office supplies. In Philadelphia, the U.S. Attorney's office adopted a new policy of charging indigent defendants for photocopies of Brady material, the potentially exculpatory evidence that the government is constitutionally required to provide to defendants, because the office could not afford paper for the copier. Forced to defend this policy in U.S. District Court, prosecutors explained that it was necessary because the "office has seen, in recent years, a reduction of about twenty percent in its allocation from Main Justice, with further reductions anticipated in the future."

(click here to read entire letter)

This under-enforcement of the nation's laws by the government is especially striking in light of the current administration's attack on the legitimacy of private civil suits. On several occasions, President Bush, imitated by many other politicians, has campaigned on the evils of the civil justice system and "out of control" lawsuits.

If the government is not enforcing the nation's civil laws - but lawyers also should't sue corporations because, according to the anti-civil justice movement (aka the tort reform movement), private lawyers (so it is said)  take all the victims money through their fees - what is the alternative?

If you or your organization is interested in learning more about or working on these types of civil justice issues, please feel free to contact me at cdugger@drummajorinstitute.org.

Cyrus Dugger
Senior Fellow in Civil Justice
Drum Major Institute for Public Policy

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Your State Constitutional Right to Access the Courts

The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury.
One of the first duties of government is to afford that protection.
                                                                - Chief Justice Marshall, Marbury v. Madison (1803)

Most everybody is familiar with the Bill of Rights and the privileges and benefits that it grants to all Americans.

However, few people are aware that each state has its own constitution with provisions that not only duplicate, but often exceed, the rights guaranteed under the federal constitution.

In the face of a relentless attack on our civil justice system in the federal and state legislatures, it may be that our best hope for fighting back is reliance on the provisions in our states, constitutions. Unlike the federal constitution, almost forty state constitutions include articles stating an explicit right of access to justice/access to the courts.

In response to tort reform efforts to put restrictive caps on the amount that those suing can recover for their injuries, some lawyers have invoked access to justice articles to invalidate these caps as incompatible with their state's constitution.

For example, the right of access to the courts has been successfully used in litigation to invalidate restrictive anti-civil justice legislation in Arizona (1986), Florida (1987), Kentucky (1998), Louisiana (1999), New Hampshire (1999), Texas (1988).

The same is true with the right to trial by jury provisions of state constitutions. All states (except Colorado and Louisiana) have the right to jury in their constitution (indeed - you should know that the federal right to trial by jury does not extend to oblige the states as do the other rights under the Bill of Rights - and so you absolutely must rely on these state constitutions for your right to trial by jury).

The state constitutional right to a jury trial has been successfully used to strike down anti-civil justice legislation in Alabama (1991), Kentucky (1998), Ohio (1999), Oregon (1999), Washington (1989).

In the public policy back-and-fourth between the different camps of the debate around the civil justice system, it is easy to lose sight of the fact that you have an explicit right to access this system based on often overlooked state constitutional provisions.

Maybe the trial bar (plaintiff attorneys) is right about the pubic policy implications of the civil justice system, maybe the defense bar (corporate defense attorneys) is right about some things about the civil justice system - but it doesn't really matter. You have a right to access the courts, period point blank (well -  unless you live in one of the few states without one).

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LAUNCH: TORT VICTIM TRAGEDIES

This post chronicles the launch of a new series: Tort Victim Tragedies.

Each week I will highlight the case of an injured person who was (or likely will be) denied full justice because of changes made to state law by the national anti-civil justice movement (aka the "tort reform" movement).

Unknown to most Americans, their right and their ability to access the courts are under assault from what is truly a mass movement by business interests to shield themselves from liability for their misconduct.

This "tort reform" movement frames its agenda as reasonable reform geared to protect corporations from what they describe as frivolous lawsuits which drive up the cost of business, and ostensibly hurt the state's economy.

In most of my posts, I will be addressing the fallacies of the anti-civil justice movement arguments. However, every Tuesday, I will do something unique and perhaps unprecedented.

There's more...

Why Attorneys General Should Be Relentless - Even if Somebody Else Already Has Been

It's critical that the state, and not just private law firms, stand up for the rights of consumers.

If you read the newspapers this week, you would have seen an excellent example of this practice. Last week, more than thirty State Attorneys General filed a class action lawsuit against a consortium of technology manufacturers that engaged in an international conspiracy to artificially inflate and control prices in the computer chip industry (NY also filed a separate suit).

This class action lawsuit seeks to recoup the money spent by state entities, as well as by each state's own citizens, on the inflated prices of the computers containing these chips. The case was launched on the heels of the DOJ criminal investigation, prosecution, and subsequent attainment of guilty pleas from several defendants.

Some estimates put the increased costs to consumers as high as hundreds of millions of dollars. You'd be surprised to read that such well-known corporations as Samsung (at least in Attorney General Spitzer's separately filed suit) are there with the rest of the defendants (in the suits of the other states they are excluded pending settlement negotiations). The scope of the conspiracy is international, involving collaboration by almost 70% of the market share, and crosses numerous international boundaries.

This lawsuit is a great example of exactly what our states should be doing. I don't really know a much better use of the portion of our tax dollars earmarked for our Attorney General than filing suits against international conspiracies to increase prices (by the way, what always bothers me is how free market defenders -  as these companies likely are  -  are willing to engage in such anti-competitive and decidedly un-free monopoly behavior - but I digress).

Ironically, some "tort reform" organizations (click here for an overview of the tort reform movement) are attacking state attorneys general for exactly this kind of aggressive pursuit of consumer fairness.

The website AGAgenda Watch describes itself as "a project of the American Tort Reform Association to monitor the litigation and political agenda of state attorneys general."

As you may or may not know, the "American Tort Reform Association" is not really about creatively reforming our civil justice system, but is focused on dismantling it.

There's more...

A Constitutional Right to an Excellent Highly Paid Lawyer: Only if You Work for a Rich Company

Every year more than 80 percent of all low-income households experience at least one civil legal problem for which legal assistance is indicated. Of these households, nearly nine out of ten face the problem without legal help of any kind.
- James A. Bamberger, Access to Justice (citing Legal Services Corporation, Documenting the Justice Gap in America (September 2005))

On June 27, 2006, Judge Kaplan ruled that federal prosecutors violated the constitution when they pressured the KPMG corporation (the employer of 16 defendants indicted for corporate fraud) to withhold payment of millions of dollars for their employees' legal fees.

Regardless of your view of the properness of this decision,  what is most striking about it, is what it does not also say.

It does not say that everybody is entitled to millions of dollars to pay their lawyers for their defense against criminal charges.

It does not say that people convicted of criminal charges have the right to have an attorney in order to appeal the decision.

It certainly does not say that people facing housing evictions, withdrawal of healthcare, or termination of welfare benefits have a right to have an attorney argue their side of the issue free of charge, let alone to hire the kind of lawyer who charges hundreds of dollars an hour like the defendants in the KPMG case.  

What this case highlights more than anything is the skewed nature of both our criminal and civil justice systems.

While the defendants at KPMG are constitutionally entitled to the payment of legal fees by their employer if their employer wishes to pay them (put differently, the government is not allowed to pressure their employers to abandon them in order to court leniency for the company), they face a maximum penalty of only 5-10 years in prison. Other criminal defendants who are facing far more serious charges (in some states the death penalty), are forced to rely on court appointed lawyers who make $60-75 an hour in New York (as of the enactment of a recent bill in 2003 before which the rate was $25 - 40) (also remember that the right to this attorney disappears if there's a need to appeal).  Indeed, there have been numerous cases in which these court appointed defense lawyers have slept through the trial, been drunk at trial, or have been high on drugs at the trial and the courts have found that their conduct did not amount to ineffective assistance of counsel (which would allow them to overturn the verdict) because it did not prejudice the proceedings.

Even if you're lucky enough to get a legal aid attorney, they still often have massive caseloads.

In one county in New York, a recent report found that each public defender attorney had 1000 misdemeanor and 175 felony cases a year.

So things are bad if you are not a rich white-collar criminal defendant these days.

But what about non-criminal cases like housing evictions, sexual harassment accusations, withdrawal of government benefits, unfair insurance claim denials, medical malpractice claims? Well - things are even worse. Indeed, you have no right to a lawyer at all --- not even one who only gets paid $60 - 75, or even the approximately $20 that legal Aid Attorneys make - not even one who is just willing to come sit and sleep through your entire trial or proceeding.

New York City is filled with stories of families evicted from homes after court proceedings in which their landlord took them to court.

There's more...

The Tort Liability Index: Another Reason Why You Should Feel Free to Ignore It

Crossposted from DMI Blog

As I discussed in my recent post "The Tort Liability Index: Why You Should Feel Free to Ignore It," the Pacific Research Institute recently published a misleading report titled "Tort Liability Index: 2006."This report purports to show that "a [robust] civil-justice system lowers the standard of living for ordinary citizens" and that "meaningful legal reform on the other hand pays dividends in the form of stronger economic growth and higher personal income." The index then ranks states from 1-50 according to their anti-civil justice reforms and purported litigiousness.

My previous posting goes into detail about - bluntly - why you should ignore the index. In short, the index uses misleading numbers and data to the extent that it even refuses to release them for peer review. I guess this means that we should just trust their own internal fact checking - just because. The authors of the primary research on which the index bases its primary findings have also plainly admitted that "the costs tabulated in this study are not a reflection of the legal system,"even though they have attempted to portray their data as reflecting exactly that.

However, in looking at a different civil justice issue, I was forced to disregard my own mantra, and re-check the report's assertions in order to figure out the best way to explain why it was wrong.

Luckily, in revisiting the report that I told you all to ignore, I uncovered - and no surprises here - yet another reason why you should feel free to ignore it.

The primary thrust of the index's argument is that a robust civil justice system that results in judgments against corporations hurts a state's businesses, which ultimately hurts employees, which ultimately drives businesses to other states.

Looking at the index I thought to myself: could it be that there's an even more obvious reason than those I've already given to ignore this index?

Indeed there is.

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Abuse of the State Secrets Privilege: Keeping Your Grandmother's Apple Pie Recipe Classified

Unknown to most Americans, their right to access the courts is being significantly curtailed by the current administration's overuse of something called the state secrets privilege.  When the government decides to use this defense in court, it means that the judge must dismiss the case regardless of its merits, and regardless of the seriousness of the injury.

You're a civilian traveling on a government military plane. The plane crashes and you die. Your widow sues and asks for the accident report during the trial. The government responds that the report is a state secret. You can't sue the government, your case is thrown out, you can't do anything (click here for full story).

You work for the FBI as a translator working on communications. You realize that some of the translators working in Guantanamo Bay and on transcripts of Osama Bin Laden conversations do not even speak the language they claim to be translating. You also realize that some of the people being investigated for spying are having their communications translated by their own friends and associates. You blow the whistle, you are fired. When you take the FBI to court, the government states that the issue you have brought would expose state secrets. You can't sue the government, your case is thrown out, you can't do anything (click here for full story).

You are a Canadian citizen traveling through JFK airport on a layover on your way home. You are detained, interrogated for nine days without a lawyer, and then flown to Syria to be tortured. You are later released by Syrian authorities who publicly state that you had no connection to terrorism and that you had been held at the request of the United States. You are never charged with any crime. You sue the United States, but they claim that the case would reveal state secrets You can't sue the government, your case is thrown out, you can't do anything (click here for full story).

You are a German citizen traveling from Germany to Macedonia on vacation. You are grabbed from your bus, and then held by Macedonia police in a small hotel room for two weeks at the direction of the US where you are questioned and roughed up. You are then flown to a secret detention center in Afghanistan where you are held by Afghani and American agents after which your captors realize that you are not who they thought you were. A full six months after they realize the mix-up, they fly you to Albania and leave you on a hillside on the country's border. You sue the United States, but they claim that the case would reveal state secrets. You can't sue the government, your case is thrown out, you can't do anything (click here for full story).

There's more...

Diaries

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