Frivolous Lawsuits

Defense Research Institute poll shows most people are confident in the fairness of our civil courts

A poll recently released by the Defense Research Institute found that an overwhelming majority of respondents found that our civil courts are fair.

Check out the DRI’s release here. Note that the headline says “41% Doubt Fairness of Civil Courts” when the article explains that 58% expressed confidence in court decisions.

There are other interesting nuggets here as well. 83% said that the side with the most money for lawyers usually wins. That’s really interesting in terms of personal injury litigation, where generally only one side has money for lawyers, and the other side only has a lawyer at all because of the existence of a contingent fee agreement.

57 to 59 percent said that they would tend to favor an individual in a dispute with an insurance, oil or financial company.

Every day we battle the misperception that our clients are out for “jackpot justice” from a jury system that is out of control. The poll results reflected this. 48% thought juries made decisions based on personal opinion rather than the facts and the law. 69% thought that judges base their decisions on the facts and the law and not personal opinion.

Here’s the interesting part: 64% said that they would prefer a jury trial to a bench trial. Even though I’m not a statistician, I can see that at least some of these numbers don’t seem to be consistent. I will leave that discussion for people who are more proficient at math than I am. There’s a reason I am a personal injury lawyer and not an economist.

What I think that data means is that most regular people, with their own case on the line, place their faith in the ability of regular citizens like them to reach a just result. Even if some of the time they think that just result is reached on the basis of emotion and not just the facts and the law.

As an added bonus, 75% saw jury duty as a civic duty and not as a burden, and 81% of those who had served said the experience was a positive one. I think much of the issue of people’s perception of fairness in civil courts stems from a lack of familiarity. I’d like to see the responses on the perceptions of fairness if the data were compiled solely from the responses of those who had participated in a civil case as a party or as a juror. The DRI website has some links to more specific data than the press release contains, but it doesn’t look like the data were sorted that way.

A Frivolous Lawsuit Story Overlawyered May Have Missed

One of the biggest names in the “legal blog” field is Overlawyered.com, primarily written and edited by Walter Olson. The site’s self-description states:
“Overlawyered.com explores an American legal system that too often turns litigation into a weapon against guilty and innocent alike, erodes individual responsibility, rewards sharp practice, enriches its participants at the public’s expense, and resists even modest efforts at reform and accountability.”

I love the site, and read it nearly every day even though as a trial lawyer I am clearly on the other side of the debate. I often disagree with Mr. Olson, but over the years I have grown to respect the work he does. Like I said, I’m on the other team, but I think Overlawyered is usually intellectually honest. One of the main things we see on Overlawyered is sharp critiques of lawsuits seen as frivolous or unfair.

In fact, there is a piece up right now talking about SLAPP lawsuits, which are suits filed by corporate interests to silence public opposition. What’s funny, is I just saw a piece about a lawsuit like this that would seem ideal for Overlawyered. Except it hasn’t shown up there.

I am referring to this story. Koch Industries is described as a “petroleum/paper cup/carpet conglomerate.” It looks like some activists set up their own website parodying Koch Industries’ official website. The parody stated that Koch would cease funding conservative think tanks because of the positions they take on global warming. What did Koch do? It sued two Utah web hosting companies to find the names of the folks who put up the parody site, presumably so they can be sued as well. Koch describes the parody site as “a willful act of identity theft, theft of intellectual property and impersonation that extends beyond the boundaries of free speech.”

How could Overlawyered miss a juicy story like this? Well, it could be that the story is just new enough (the suit was filed Monday) that it hasn’t yet come to the site’s attention, or that it was seen and not really considered noteworthy. Or it could be that David H. Koch, one of Koch Industries’ co-founders, is a member of the Board of Directors of a conservative think tank called the Cato Institute. Overlawyered’s Walter Olson is a Senior Fellow at the Cato Institute. Some might argue that the story’s absence from Overlawyered is evidence that Mr. Olson has no interest in biting the hand that feeds him. I won’t go that far, because I really don’t know. But I do think it raises some interesting questions.

This Lawyer is a Disgrace

Today’s paper has an article about a lawyer from Frederick County who has sued the state over an incident where he was arrested in the Court of Appeals building. According to this Baltimore Sun article, the regular bailiff was out, so he was replaced with a police officer from the state’s Department of General Services. When the lawyer arrived at the courthouse, dressed in a slovely fashion, he was asked to show ID. He refused, and lied to the officer. He said he left his ID in the car, when it was actually in his pocket. He was then arrested. The charges were dismissed for lack of probable cause. Now the lawyer has sued for $700k for his “wrongful” arrest.

This is the same guy I wrote about here, when he rudely interrupted a trial judge, showed tremendous disrespect, and stormed out of a courtroom while the judge was hearing the case. In a wrongly decided opinion, the Court of Appeals let him off the hook because the judge made some procedural mistakes in handling the contempt ruling.

It looks like he didn’t learn much. Perhaps he is correct that there is no legal requirement that you show ID when entering the Court of Appeals building. But a person entrusted with the privilege and responsibility of being a member of the Maryland Bar should know better than to handle it the way this guy apparently did. Just because you have the right to act like a jackass doesn’t make it a good idea.

From the cop’s perspective, what was going on? A man who was shabbily dressed and did not look (or apparently act) like a lawyer, was asked for ID and refused, and then proceeded to go upstairs where the judges’ chambers (and the clerk) are located. I can understand why this would cause the officer concern. Maybe the officer had no legal right to arrest this guy. But the lawyer completely brought this on himself by his own actions.

Now this story is on the front page of the local paper. When I go to court for a jury trial, to represent a real person, who had something terrible happen to them, my jury is going to be getting their views about lawyers from stories like this.

That offends me. In my opinion, this lawyer is a discredit to the profession. I think he is exhibiting a pattern of behavior that brings shame on the profession and harms public confidence in the legal system. Whether what he has done is legal or not, at a minimum it is disrespectful and shows an alarming lack of judgment. Based on what I have read, I think this gentleman should be disbarred. This is not the sort of publicity lawyers and the legal profession need or want.

I Have Met The Enemy, And He Is Us.

My fellow attorneys, write this down: “Offering legal services in exchange for sex is unethical.” And unlikely to succeed, if you look at this ethics opinion where a lawyer made such an offer, to two clients who happened to be lesbians. You, sir, are a genius. Enjoy your well-deserved disbarment. Disclaimer: Although this is more likely to succeed with non-lesbians, it is equally wrong and repugnant. Thanks, Walter Olson. I do not agree with you politically, but I agree unethical lawyers do everyone a disservice.


Justice Scalia trips and falls, but he is unharmed. Crap. This would have been the best slip/fall case ever, possibly even better than Judge Bork’s.
I love Judge Bork (not to be confused with Bjork). Great beard, (although not well visualized in the photo at right) and he reached the pinnacle of American achievement by becoming a verb.

Getting “Borked” now refers to defeating a judicial nominee by attackign his character and philosophy. And as an added bonus, it sounds kind of dirty.

Frivolous lawsuit category: AEG Live sues Mile High Music Festival concert bootleggers before they bootleg. “Yeah, we know what you are thinking, and it violates our copyrights.” How do you sue unknown individuals, because whoever they are, you know they are going to do something wrong, even though they haven’t yet? I think they were a “Mile High” when they hatched this idea.

“[J]udges do not have a right to use rude, demeaning and condescending speech toward litigants.” Now, where’s the opinion saying they do not have a right to disagree with good-looking, witty Plaintiff’s lawyers?

Today’s Sign of the Apocalypse


Judge Judy is pulling down $15 million a year for a show that lasts 22 minutes a day, exclusive of commericals.

I hate Judge Judy. People see her show and think it bears a resemblance to real court cases and real lawsuits, which it does not. And her behavior is flat-out unaceptable for a real judge.

More “Tort Reform” Propaganda from the U.S. Chamber of Commerce

Hot of the presses is a new “study” on “Tort Liability Costs for Small Business” from the U.S. Chamber of Commerce’s tort reform propaganda ministry, the dubiously named “Institute for Legal Reform.”
I found this through the efforts of Walter Olson at Overlawyered. I’m ambivalent about reading, and linking to, Walter’s site. It’s not that his site is no good. In fact, just the opposite. The site is outstanding, and is a fantastic resource for news about the legal system. Its just that Overlawyered is a wholly owned subsidiary of The Man, Inc. And you know how I feel about The Man. Nonetheless, I will continue giving credit where it is due.

The report itself is more of what I have come to expect from this source. It wears the sheep’s clothing of objectivity, but an examination of the sources and methods it uses reveals the wolf beneath. Consider this:
“In a separate survey of small business executives in Maryland, 91% indicated that lawsuits filed against corporations are hurting Maryland’s business climate. Nearly six in 10 respondents to that survey said they have increased their costs, reduced services, or changed products they offer. Fourteen percent said they even considered closing their business as a result of a lawsuit.”

The source? A survey commissioned by Maryland Citizens Against Lawsuit Abuse and the National Federation of Independent Businesses.
Seriously? That is as credible as citing a survey of cows to support the conclusion that steak is a threat. A biased report from the U.S. Chamber trying to appear objective by citing “independent” sources like a poll by MDCALA. Luckily for the Chamber, in an era defined by the 30-second sound bite most consumers will never read the footnotes or ask if the sources used are credible.

I haven’t gotten through the whole “report” yet. I am sure I will have more comments.

I try to be pretty upfront about the fact that I obviously have my own biases that I bring to the table on these isssues. Otherwise, nothing I say about it could be taken credibly. That is a big part of the problem I have with “studies” like this. There is never any acknowledgment of the inherent bias presented by the source.

So if you haven’t been following me closely, I am not surprised that a report sponsored by the largest business group in the United States concludes that lawsuits against businesses are bad. Considering the source, no other conclusion was possible.

I Borrow (Steal) A Theme From Peter King

Peter King is one of my favorite sportswriters. His Monday Morning Quarterback column for Sports Illustrated has a regular section called “Ten Things I Think I Think.” He is an intelligent guy and a better writer than me, so instead of coming up with an idea of my own I stole his. So here are some things I think I think (but I might be wrong):
Walter Olson points out that the $75 million liability cap in the Oil Pollution Act of 1990 does not override state law remedies that may apply to the BP oil spill. His point is that the $75 million cap in the federal law may not be the upper limit of BP’s actual liability, depending on the amounts recoverable under state law. Yeah, but: lots of states have damages caps that apply to common law tort claims arising under state law. I do not know if Louisiana, Missisippi, Alabama and Florida have caps that would apply, but I think it’s an important piece of information to know if you are analyzing whether the damages cap in the federal law needs to be changed.

Many lawyers in Maryland (and elsewhere, presumably) beleive that to be admissible, expert opinion evidence needs to be accompanied by some sort of magic words like “within a reasonable degree of medical certainty.” First, I think that is not the law. I think it is sufficient if it is clear that the standard is “more likely than not” for an expert in whatever field is applicable. And I think if the law is that some magic words are required, that is a stupid requirement that should be changed. It is clunky, cumbersome, overly technical, and a perfect example of lawyerspeak that clues the jury in to ignore whatever follows it. The court has just accepted the witness as an expert. It should be clear to everyone that his opinion testimony is offered as that of an expert in the field. Why do we go out of our way to make our legal proeedings as cumbersome, time-consuming and annoying for the jury as possible?

I think Bret Michaels is getting a lot of valuable exposure for having not died. I also think it is painfully obvious that the bandanna is because he is bald. One more reason to hit the Maryland State Fair.

I think the primary function of a “Motion for Reconsideration” is to elevate legal billings. In my experience, when trial judges are presented with an additional and more detailed recitation of facts that have already been presented to them, they rarely decide they were wrong the first time. I am sure these motions have some value in making a record for an appeal, but I can’t recall ever having seen a trial judge grant one.

I think that when faced with a party or witness whose first language is not English, but has some limited proficiency, more lawyers should consider using an interpreter anyway and letting the witness testify in their native language. Interpreters have a cost and add more time to a deposition, but the transcript will be a lot more accurate. Particularly if the witness stutters and/or is a Seinfeldian “low talker.”

You may remember me blogging about a defense verdict in a tough four-day trial recently. I think is was very nice of my client to send me a thoughtful personal letter saying what a great job I did, even though we didn’t win. On balance, though, I would rather win and not get a nice letter.

Dog is Run Over, State Farm Demands Payment For Bumper That Hit It

From the “good neighbor” file: A Canadian family has gotten a bill from State Farm to repair a bumper that was damaged when a car ran over their dog, killing it.


Sixty days after having her dog die in her arms, Kim Flemming got a letter from State Farm demanding that she pay $1,648.95 (U.S.). When asked for comment, The Farm said “[t]hey could have made sure their dog wasn’t free on the roadway.”

Awesome! Legally accurate, perhaps. Awful public relations, certainly. I just love it when heartless corporate scum reveal themselves to be who they are.

Thanks to Walter Olson at Overlawyered for making my morning.

Frivolity Is In The Eye Of The Beholder

There is a man who lives in York, PA named Albert Snyder. His son was in the military, and was killed in the line of duty. When Mr. Snyder tried to bury his son in Baltimore County, MD, the funeral was picketed by members of the Westboro Baptist Church. They showed up with signs saying things like “God Hates Fags.” Apparently, they believe that U.S. military deaths are God’s revenge for our society’s tolerance of homosexuality. Mr. Snyder sued the Westboro Baptist Church and got an 11 million dollar verdict. This has been in the news recently because Mr. Snyder lost on appeal to the 4th Circuit, and was ordered to pay the church’s costs of about $16,000.

The same day, there was a $1.44 million dollar verdict in the Circuit Court for Baltimore County in a medical malpractice case. This was a death case. The defendant was an ER doctor who failed to diagnoses sepsis, leading to the death of the patient. Baltimore County is one of the most conservative jurisdictions in the state. Because of this, this verdict was also in the news.

Our local paper’s website allows comments, and I read the comments to both of these stories. The comments to the medmal story pillory the plaintiffs and their lawyers. The plaintiffs are called greedy, their case was called frivolous, and one commenter said it wasn’t fair because $1.44 million dollars won’t bring the dead man back. This is a case where a man died.

The comments to the Snyder story support him fully, and are appalled that he now has to pay costs. There is no mention of the amount of the verdict, and nobody called him greedy, or his case frivolous, even though he sued essentially because his feelings were hurt at a very emotionally sensitive time.

Why do people think one of these cases is frivolous and not the other? Death case= frivolous. Hurt feelings case= not frivolous. I guess frivolity is in the eye of the beholder.
Don’t misunderstand me. I don’t think either of these cases is frivolous. But there is an incredible amount of hypocrisy in calling one case frivolous but not the other, simply because one case is wrapped in the flag.

Trial Lawyer Seeks Justice For Victim of Child Pornography

Here is a report about a New York lawyer who is helping a victim of horrific abuse. HT to Above the Law.
“Amy” was victimized by an uncle who used her as the star of child pornography. She has hired an attorney, James L. Marsh, who has had her evaluated, and has obtained expert reports showing the effects of the abuse on her, and documenting how much it has cost her in counseling, diminished wages, and lawyer fees. The total is about 3.4 million dollars.

Mr. Marsh has taken the position that every person convicted of posessing one of the images of Amy is jointly and severally liable for her damages. He has made hundreds of court filings seeking restitution on this basis. Many judges have agreed, although some have criticized this approach, arguing that the link between posessing a single image and the damages claimed is too tenuous.

Although many of these perverts are incarcerated and have little or no assets, others are comparatively well off. In the first year of this strategy, Mr. Marsh has collected over $170,000 for Amy. He is pledging 10% of his attorney’s fees to the Children’s Law Center.

Mr. Marsh’s website states that he is a member of the American Trial Lawyers Association (now the American Association for Justice), a group I am proud to be a member of. We are the greedy trial lawyers everyone is telling you are ruining America. What this lawyer is doing is in the best tradition of advocating for justice on behalf of an innocent victim.

Mr. Marsh, I salute you.