Saturday, February 2, 2008
Over at Point of Law, Marie Gryphon has an interesting discussion about contingent fees. Based on the research of behavioral economists Eyal Zamir and Ilana Ritov, Gryphon addresses the following questions:
Why do plaintiffs with assets opt for contingent fees over hourly rates? Why are contingent fees so uniform? And if contingent fees are so attractive to plaintiffs, why haven't defendants demanded similar arrangements?
As I previously noted, a former Mitsubishi president was convicted in Japanese criminal court in the aftermath of the discovery of massive and long-standing coverups of safety defects. That story is continuing in Florid, where a trial started this week over the death of a 25-year-old college student. His family alleges that the seatbelt in the Mitsubishi SUV had too much slack, resulting in his ejection and death.
The Post story does not indicate any direct connection between the defects that had been covered up by the company and the seatbelt design, but the plaintiffs' attorney signaled an intent to make such a connection, saying that he believed the death could have been avoided had the company "properly dealt with defects."
Friday, February 1, 2008
Here are the top torts downloads on SSRN for the last 60 days:
1 237 Choice of Law in the American Courts in 2007: Twenty-First Annual Survey
Symeon C. Symeonides,
Willamette University - College of Law,
Date posted to database: January 2, 2008
Last Revised: January 14, 2008
2 187 Rome II and Tort Conflicts: A Missed Opportunity
Symeon C. Symeonides,
Willamette University - College of Law,
Date posted to database: November 22, 2007
Last Revised: November 22, 2007
3 180 Moral Cognition and Computational Theory
Georgetown University - Law Center,
Date posted to database: November 13, 2007
Last Revised: December 3, 2007
4 123 Disability and Work: The Transformation of the Legal Status of Employees with Disabilities in Canada
Michael S. Lynk,
University of Western Ontario,
Date posted to database: December 12, 2007
Last Revised: December 12, 2007
5 97 Did the Right Make America a Lawsuit Nation?: Thomas Geoghegan's See You in Court
Theodore H. Frank,
American Enterprise Institute for Public Policy Research,
Date posted to database: November 28, 2007
Last Revised: January 16, 2008
6 72 Personal Inviolability and 'Private Law'
Gregory C. Keating,
University of Southern California Law School,
Date posted to database: January 7, 2008
Last Revised: January 20, 2008
7 70 Towards a European Tort Law? Damages Actions for Breach of the EC Antitrust Rules: Harmonising Tort Law Through the Back Door?
Francisco Marcos, Albert Sánchez Graells,
Tribunal de Defensa de la Competencia de la Comunidad de Madrid, Instituto de Empresa Business School - Observatory on Competition Policy,
Date posted to database: November 12, 2007
Last Revised: December 5, 2007
8 67 Creating Masculine Identities: Harassment and Bullying 'Because of Sex'
University of Nevada, Las Vegas - William S. Boyd School of Law,
Date posted to database: December 3, 2007
Last Revised: December 4, 2007
9 40 The International Legal Environment for Serious Political Reporting Has Fundamentally Changed: Understanding the Revolutionary New Era of English Defamation Law
Marin Roger Scordato,
Catholic University of America - Columbus School of Law,
Date posted to database: December 10, 2007
Last Revised: December 12, 2007
Instructing Juries on Punitive Damages: Due Process Revisited after Philip Morris v. Williams
Sheila B. Scheuerman, Anthony J. Franze,
Charleston School of Law, Arnold & Porter,
Date posted to database: December 14, 2007
Last Revised: December 14, 2007
Deterrence and compensation goals should be distinguished, and compensation priorities should change in response to the deterrence goal. This has immediate implications for the problem of handling marginal and fraudulent claims in asbestos litigation. Where the deterrence goals come to the forefront, for example in instances of reckless exposure, it may be desirable for courts to require defendants to pay damages that are not transferred to any claimants. Where the deterrence goals are less compelling, as in instances of ordinary negligence, the importance of weeding out marginal and fraudulent claims becomes paramount. I consider optimal penalties for attorneys who bundle fraudulent claims.
This paper was presented at Southwestern last month as part of a major symposium on "Perspectives on Asbestos Litigation."
Thursday, January 31, 2008
Now that's bold.
What-A-Burger has mandatory arbitration agreements posted at every entrance of their restaurants (see also Public Citizen's blog posting). By entering, customers are purportedly committing to having any disputes heard by the American Mediation Association, a three-lawyer group (with an astoundingly annoying soundtrack on their website).
The Oregon Supreme Court has yet again affirmed the nearly 100-to-1 ratio of punitive damages in the Williams v. Philip Morris case (opinion, Turkewitz); the affirmance focuses on the failings of Philip Morris's proposed jury instruction.
Aspen Publishers has launched its "Essentials" series, and Mark Geistfeld is writing the Torts installment. Aspen describes the series as follows:
The Essentials series offers a prominent author's personal view of the subject matter. Each book will help students understand the salient characteristics of the subject and how the subject relates to other law school courses. Some authors will choose to focus on unifying themes or policy issues; others will choose to focus on doctrines or illustrative case studies. But the purpose of each volume is the same — to illumine the subject matter for the student.
Geistfeld's volume on Torts will be available next year.
The Lexington paper has a story with details of Katie Lassiter's account of her ride on Six Flags Kentucky Kingdom's "Superman: Tower of Power" ride on which she lost her feet. It also describes her parents' experience of the day.
Wednesday, January 30, 2008
A great teaching opportunity on assumption of the risk from WNBC (New York):
... Avram Wisnia was an NYU junior in 2004 when he and his dorm mates organized a party called "Beach Bash." While horsing around a kiddie pool filled with gelatin, Wisnia was pushed and shattered his hip....Wisnia's 2005 lawsuit blamed NYU for allowing the event and for having the school's food service provide the gelatin. But Manhattan Justice Carol Robinson Edmead ruled that Wisnia knew what he was doing.
(Via Walter Olson at Overlawyered).
Jeffrey O'Connell (Virginia) has posted "Commentary Binding Early Offers versus Caps for Medical Malpractice Claims?" on SSRN. The abstract provides:
Like damages caps, early offer reform promises reduction in the costs of medical liability cases. In contrast to damages caps, early offer reform offers advantages to both claimant and defendant. Under early offer, the defendant would have the option to offer an injured patient periodic payments for the patient's net economic losses as they accrue, but not payments for noneconomic losses (pain and suffering). If an early offer were made and accepted, that would settle the claim. This commentary explains how an early offer reform might work and summarizes data from a recent closed claim study of medical malpractice cases in Texas and Florida. The data show widespread opportunities for successful early offers and provide evidence that substantial per case savings would result.
Tuesday, January 29, 2008
In a new featured column at PointofLaw, Richard Nagareda (Vanderbilt) argues that resolution of mass torts requires a reconception of the attorney-client relationship and the role of the civil tort system:
What is needed for mass torts is a corresponding legal response that would turn this leveraging into its own source of constraint—that would bestow the coercive authority needed to make peace, but only coupled with measures to link the interests of the peacemakers to the long-term viability of the arrangements they create. Such measures might include the overriding of existing lawyer-client retention agreements so as to link the fees to be obtained from clients by plaintiffs' lawyers to the peace terms that they fashion for non-clients who are otherwise similarly situated.
In his latest Findlaw column, Tony Sebok analyzes the constitutionality of providing civil immunity to telephone companies that allegedly violated customers' privacy rights by providing information about phone and Internet communications to the federal government. Sebok points out that the suits filed against AT&T and other companies sound in tort law: the original Foreign Intelligence Surveillance Act includes a civil suit provision, and "[t]he causes of action that were triggered by the violation of FISA concerned privacy, a tort interest recognized by almost every state's common law, and possibly protected by an implied right of action under the First and Fourteenth Amendments as well." Sebok argues that before Congress can eliminate a plaintiff's statutory tort claim, it must provide compensation under the Fifth Amendment's Takings Clause, and that different treatment based on the statutory nature of these claims is unjustified.
The Seattle Times has a disturbing story about former UW standout tight end Jerramy Stevens, now with the Tampa Bay Buccaneers, and his "raft" of second chances after a conviction for assault, a fairly compelling accusation of rape, and a multitude of other legal run-ins.
Of particular note for Torts folks is the fact that much of the detail came from depositions in tort suits, as the local prosecutor declined to bring charges (over the police's objections). The story also notes a dispute about making the plaintiff's name public; UW fought for her identity to be unsealed. The case settled:
In the spring of 2004, the lawsuit was settled. The agreement was confidential, barring Roe [the lawyer for the alleged rape victim] and Marie [the alleged victim] from disclosing its terms.
But in a letter to the UW's attorney — obtained through a public-records request — Hunsinger [who represented Stevens] described part of the deal. The agreement allowed the UW to be dismissed from the case, while Stevens and the fraternity would settle.
The deal also allowed Stevens to avoid questions about what happened on that June night four years before.
"One of the elements of the settlement is that Jerramy not be required to participate in any other litigation involving the UW, specifically the lawsuits filed by [Roe] regarding [other UW players sued] Eric Shyne and Roc Alexander," Hunsinger wrote. "He does not want to be contacted by anyone, let alone deposed, or testify at trial."
A month later, in June 2004, Hunsinger sent Roe a check — for $300,000 — to settle the case on behalf of Stevens and the fraternity.
It's well worth reading for a number of reasons, in particular to explore the interplay of criminal and civil litigation in at least one setting with significant public pressure in play.
Monday, January 28, 2008
I just received this from our Institute on Legislative and Governmental Affairs:
The Law School’s Institute for Legislative and Governmental Affairs
cordially invites you to attend a hearing of the Commission on Public Health
Access in Sleith Hall Auditorium on January 30, 2008, from 1:00 – 5:00 p.m.
The 14-member Commission is charged with the investigation and study of the
accessibility and quality of doctors who specialize in obstetric,
gynecological, and neurosurgical care of women in western Massachusetts.
“Western Massachusetts is losing physicians within these specialties
at an alarming rate. It is a public health nightmare waiting to happen if
women do not have access to quality doctors and specialists,” said Senator
Gale D. Candaras (L’82) (First Hampden and Hampshire District).
Senator Candaras introduced the legislation that created the
Commission as part of the 2008 Fiscal Year budget. “Establishing the
commission was at the top of my list of legislative priorities in
conversations with Senate President Therese Murray and Senator Steven
Panagiotakas, the Chair of Ways & Means. I thank them both for being so
very receptive and willing to take action on this growing problem,” Senator
The Sleith Hall hearing is open to the public. Persons wishing to
testify are asked to provide ten copies of their testimony to the
Commission. Individuals or parties interested in offering testimony but
unable to attend may submit written testimony to the Commission for
consideration. For further information, please call the Department of Public
Health at 617-624-6000 or Senator Candaras’ Office at 413-599-4785.
The 14 Commission members are: John Auerbach, Commissioner, MA
Department of Public Health; Nancy Audesse, Executive Director of the Board
of Registration in Medicine; Nonnie Burnes, Commissioner, MA Department of
Insurance; Dr. Roger Snow (designee), Commissioner of MassHealth; Dr.
Herbert Kantor, physician, Dr. Stephen Metz, physician, and Dr. Sherry
Taylor, physican, appointed by the President of the Massachusetts Medical
Society; Senator Gale Candaras and Senator Benjamin Downing, appointed by
the President of the Senate; Dr. James Wang, appointed by the Minority
Leader of the Senate; Representative Stephen Kulik, Representative Daniel
Bosley, and Dr. Susan Yates, appointed by the Speaker of the House of
Representatives; and Representative Mary S. Rogeness, appointed by the
Minority Leader of the House of Representatives.
Sunday, January 27, 2008
The Post's Government Inc. blog reports that Blackwater is suing Wiley Rein for malpractice in defending the company against a wrongful death suit brought by the "Fallujah Four." Legal Times has more details:
The complaint, filed in D.C. Superior Court, claims lawyers at Wiley Rein filed sloppy pleadings that ultimately barred Blackwater from shifting the case from a state court in North Carolina to federal district court, where the security firm could have mounted a stronger defense.
After losing its bid to have the case transferred in October 2005, Blackwater discarded its high-wattage Wiley Rein team, which included Fred Fielding, now White House counsel; Barbara Van Gelder, now an attorney with Morgan, Lewis & Bockius; Scott McCaleb, who is a partner with Wiley Rein; and Margaret Ryan, who is now a judge for the U.S. Court of Appeals for the Armed Forces.
An earlier post about the suit is here; it links to earlier posts too.
That's what Sidney Wolfe (Public Citizen) is asking for after sixteen deaths have been reported -- but none apparently among the people using it for cosmetic purposes. As a muscle relaxant, it can, as it turns out, be used to treat severe muscle pain in the neck, but the injections come near the esophagus, which, when it's hit with the drug, can cause paralysis and eventual death.
Perhaps because of the fact that it's thus far apparently limited to people in the non-cosmetic use side, I don't see any relevant ads for lawyers. The risk/benefit discussion would be interesting in any event, but especially so in the cosmetic use side, I would think.