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Extreme Unctuousness

Posted in Civil on Saturday June 19 2010 @ 12:11pm

Can legal minds work like Dawn and take the grease out of our way? Unfortunately, no, but there is no shortage of pondering the legal aspects and subaspects of the BP goo.

The New York Times is flabbergasted that lawyers are putting their greasy mitts into the conflict. Seventh Amendment? What Seventh Amendment? See First the Spill, Then the Lawsuits, John Schwartz, NYT (June 10, 2010).

Law Professor Blogs are all over the issue like globs on a pelican:

How is BP like Arizona? No, it's not a riddle. See Arizona Meet BP, Alvaro Huerta, ImmigrationProf Blog (June 2, 2010).

Does the cap on liability that is part of the Oil Pollution Act of 1990 apply to BP? See BP May Be Innocent Until Proven Grossly Negligent, John Fershee, Business Law Prof Blog (June 9, 2010).

Oh, if only we'd all been paying attention! See OSHA Fines BP a Record $87 Million for Unabated Violations, Marcia McCormick (who, sadly, was a bit too hopeful), Workplace Prof Blog (October 30, 2009)!

Activist Judges

Posted in Civil on Wednesday May 06 2009 @ 7:10pm

Does a state court of last resort overstepping its bounds when it grants an injunction that will affect thousands of people in the jurisdiction? Can state courts hold up cases while federal measures that might affect them kick in? What if the petitioner only asked for an order affecting itself, but the court decided to broaden it to include all those affected?

Is this activist judging at its most egregious? Has the chief justice, a former legislator, forgotten where she is?

One of our favorite state court chiefs issued a temporary restraining order that will prevent over 5,000 South Carolina homes from being foreclosed upon before residents have a chance to take advantage of the new federal Home Affordable Modification Program (HMP).

While all states have dealt with the foreclosure crisis on some level, South Carolina is the first we've heard of to do this. The state has already seen its share of foreclosures -- unfortunately in this area, they were ahead of the country. Now they've found an interesting fix that pleases owners, taxpayers, and lenders alike.

Hug an activist judge!

See SC Court Halts Thousands of Home Foreclosure Sales, AP (May 5, 2009), and South Carolina Supreme Court Stays Foreclosures, Russ DeMott, DeMott Real Estate Blog (May 5, 2009).

Tiptoeing through the Torts

Posted in Civil on Friday May 01 2009 @ 6:06am

Not long ago, the New York Review of Books ran a review of Philip K. Howard's lament, Life Without Lawyers. (See Shall We Get Rid of the Lawyers?, Anthony Lewis, NYRB, vol. 56, no. 6, April 9, 2009.)

The reviewer asked whether people really tiptoe through the law -- because he himself did not.

This month's issue contains letters from Philip K. Howard, Harrison Sheppard, and Anthony Lewis. Howard claims he really does tiptoe, and suggests that Lewis might, too.

But given Howard's examples -- school[s], hospital[s], government agenc[ies], or large office[s] -- perhaps they should tiptoe. These are massive entities, all of which affect major parts of our lives. Our health (even life or death), Constitutional freedoms, and anything a government agency might regulate (food, drugs, agriculture, firearms, tobacco, alcohol, you name it!) are at stake. Why shouldn't we be able to use the civil justice system when wronged by one of these heavies?

It reminds us of an exchange we once witnessed between a law student and a medical student. The law student said I could really mess up someone's life. The medical student said I could KILL someone!

For his part, Sheppard advocates for retooling the law schools. He would transform them from a war-making model of legal practice into a peacemaking, problem-solving model.

We're all for that, but it doesn't change the fact that one person's litigious society is another's civil justice system. Given the choice, we'll take the Seventh Amendment.

Happy reading!

Health Care Courts: "Do No Harm" or "Quack?"

Posted in Civil on Sunday April 05 2009 @ 6:55pm

Will health care courts cure anything? We think not.

Not because specialized courts are bad. No, we like the (anti-) substance abuse courts (except when they trample on defendants' rights). We like the idea of problem-solving, and are all for such courts when they do not cause ethical obligations to run amok. Most are in the "good idea whose time has come" category. But health care courts, which purport to cure all things medmal, will not.

First, they leave an important party out of the equation: insurers. Problem-solving and/or specialized courts are defined in part for their efforts to solve underlying issues. One primary cause of the medmal crisis (if it is a crisis) is the insurance industry. It's easy to hate lawyers -- after all there are so many funny lawyer jokes and cartoons! It's easy to love doctors -- they save lives and are portrayed by hotties on TV! But insurers? We don't quite understand them. Too mathy. Too actuarial, actually!

Who wants health care courts? Some doctors say they do, but we find this as amazing as claims by snake oil salesmen. Do doctors and other medical professionals really want judges (even, or especially, specially-trained ones) to determine what the standard of care should be? The health court bench could become an elite legal-medical group, keeping both doctors and their patients at bar's length.

How broken is the system, anyway? Don't believe the hype. Medical malpractice cases are not spinning out of control. Up until recently, we wouldn't have even known if they were; few courts even counted such cases separately. Contrary to what former Vice President Dan Quayle read in the funny papers, we are not a litigious society; we have a civil justice system. Juries are not running away. Car accidents are far more of a problem than medmal. Health care courts are akin to administering Thorazine to a slightly moody person. At best, they're a needless layer of bureaucracy in an already Kafkaesque system.

Nevertheless, there are those who still believe in health care courts, just as someone, somewhere probably still thinks you can rub warts off with pennies. Every so often the idea is floated in a bill or op-ed. See, e.g., Just Medicine, Philip K. Howard, NYT (April 1, 2009).

May is Malpractice Month

Posted in Civil on Saturday April 04 2009 @ 9:01pm

Sponge stuck inside you? Wrong finger amputated? Step right up! The Clark County, Nevada, District Court has made May Malpractice Month!

Attorneys in 216 of the oldest pending malpractice cases in the jurisdiction have received notice, or rather an invitation, to participate in the May Marathon. On the agreement of parties, such cases may be handled through the settlement program.

The Eighth Judicial District Court has 800 pending medmal cases, 430 of which are related to a single endoscopy center. The court realizes that it is nearly impossible to resolve all the pending cases within the statutory guidelines; hence, May Marathon.

Is settlement a good idea for the alleged victims? Court-o-rama is a huge fan of this country's civil justice system, but it is true that "justice delayed is justice denied." Particularly with medmal, where people may be suffering economically as well as physically and emotionally, time is of the essence.

See the court's press release: May Marathon Aims To Reduce Medical Malpractice Backlog (April 2, 2009). The press release contains contact and scheduling information.

Beverly Hills Papers at NKU

Posted in Civil on Friday April 03 2009 @ 7:13am

The nation's third-deadliest fire and harbinger of the class action landscape we know today happened at the Beverly Hills Supper Club in northern Kentucky. Now, Stan "The Man" Chelsey's case-related papers will reside at Northern Kentucky University's Steely Library.

The case changed the world, not only in how the system handles mass disasters, but also in terms of fire safety, emergency response, and building regulations. On a more personal note, court-o-rama's momma always checks for the exit signs wherever she goes. Whether you lived just across the river from this calamity or read about it in a coastal newspaper (we had these things called "newspapers" back in the day), the fire was shocking.

A memorial is also planned for the site.

See the NKU press release (April 2, 2009).

Meanwhile, some wondered whether the case was truly over. Recent comments from employees at the club failed to re-open the investigation. See Beverly Hills Supper Club Investigation Stays Shut, Jessica Noll, Kentucky Post (March 14, 2009).

Avoiding the "Oops!" Moment

Posted in Civil on Thursday January 15 2009 @ 11:01am

Amputating the wrong limb. Giving the wrong type of blood. Misreading the dosage. Leaving a tool inside of a body.

No matter where you stand on medical malpractice issues, read enough cases (or even one very scary one) and you have to admit that reducing the amount of "Oops!" moments can only be a good thing.

The good news is, some of these mistakes can be easily avoided if simple procedures are in place. Checklists are one tool being used more and more by medical professionals (and patients).

Checklists run the gamut, from having doctors introduce themselves to patients to having staff ensure there is enough blood on hand in case of an emergency. Checklists are relatively low-cost, require little extra training, and are not difficult to implement.

Can something this simple work? Apparently so. According to the NYT, "a year after surgical teams at eight hospitals adopted a 19-item checklist, the average patient death rate fell more than 40 percent and the rate of complications fell by about a third."

See Simple Checklist Makes Surgery Safer, Eric Nagourney, New York Times (January 14, 2009).

Foreclosure Facts

Posted in Civil on Tuesday January 13 2009 @ 8:58pm

Does your court count foreclosure cases? Wisconsin, a leader in beer and cheese, is now also a leader in foreclosure data.

Not surprisingly, foreclosures are up in the Dairy State. What is surprising (in a good way) is that they're keeping track. It is true: you can't measure what you don't count.

See State Foreclosures Up Again, Mike Miller, Capital Times (January 13, 2009).

Meanwhile over at NCSC, the brilliant minds of KIS have compiled Foreclosure Statutes, a Foreclosure Resource Guide, and a Foreclosure FAQ.

Time = Money

Posted in Civil on Sunday January 04 2009 @ 9:05pm

Does mediation save time and/or money?

If we had a nickel -- a penny! -- for every time someone asked us that, we'd be rich. If we had an answer, we'd be even richer. And we'd have all the time in the world!

But the real answer is "it depends." Whether the program is run by paid staff or volunteer elves (most are a combination), whether the mediators are any good (and how can one tell?), whether parties will actually go, where in the process cases get to mediation, whether judges feel comfortable referring parties, whether lawyers feel comfortable with the process, whether the program is well-run or being run into the ground, whether the person asking really meant to say "meditation"...all of these factor into the time and money savings.

Honestly, it got so bad that the field decided to stop asking the time/money question and spend time focusing on quality. What a concept! But this approach is too subjective for legislators in the best of times. Today, as nonprofit mediation centers face closure (as the nearly 20-year-old center in Fredericksburg did), providers will become harder to find.

Kenosha County, Wisconsin, seems to have landed upon a winning formula. See Mediation Celebration, Jessica Hansen, Kenosha News (January 1, 2009). Small claims, including landlord-tenant and collections, are hot right now. These cases have one thing in common: everybody (judges and parties) wants them to go away. Marquette University students have jumped in to mediate, and if they're not careful, they just might learn something. (Thanks again, Cos!)

Civil Gideon: If Not Now, When?

Posted in Civil on Sunday November 30 2008 @ 1:06pm

There is no "civil Gideon" -- representation for those involved in civil (as opposed to criminal) cases. The downturn in the economy and the constant (since the Age of Newt) downward spiral in legal services funding will have you giving thanks for the blessings you have.

The closest anyone has come recently is Maryland. Chief Judge Bell, a civil rights hero in his own right, had harsh words for the majority in Frase v. Barnhart, No. 691 (Md. Ct. App. Dec. 11, 2003). See Civil Gideon Sidestepped, Daniel Cox, Equal Justice Magazine (Winter 2004).

Greater (comparatively) strides are being made in the area of parent counsel. Having your children taken away from you is worse than foreclosure, worse than prison. While reforms to the system (e.g., Court Improvement Project) always included improvements to parent counsel, little was being done due to the fact that children, too, lacked counsel. The children came first; parents were put on the back burner. But this area is ripe for civil Gideon progress; many states are reaching that point.

Two items of interest, though (unfortunately) nothing new to those already involved in legal aid one way or another: Legal Assistance for Poor Takes a Hit, Anna Sale, Day to Day (November 21, 2008), and Foreclosures Overwhelm Legal Aid Programs, Ari Shapiro, All Things Considered (November 27, 2008).

The ABA presents Real People, Real Needs, Real Solutions: Access to Legal Representation in Civil Litigation. An all-star lineup features Marc Galanter, Michael Greco, Ted Eisenberg, and many more! December 4-5, Atlanta. Reporters may gain free access to the symposium. Contact Deborah Weixl at 312-988-6126 for information.

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