UPDATE: Dennis Quaid and his wife are suing the Heparin manufacturers because the nurses made a mistake in the dose they gave their newborn twins. There is no permanent harm, as far as I can learn, and the Heparin vials have been the same for years. I could see suing the hospital but the company ?
Let me begin by saying two of my kids are lawyers, one a trial lawyer, so I love some lawyers. I don’t love them (the collective “them”-pardon the pun) as much as Kevin Drum does. In his post today, he complains about an “increasing number of businesses that won’t do business with you unless you sign away your right to a trial in case of dispute. In fact, there are now entire industries that refuse to deal with anyone who won’t agree in advance that all disputes be resolved by a private arbitration firm.” I wonder why ?Could this be it ?Two joggers are running on a section of Coast Highway that is bounded by cliffs on one side and railroad tracks on the other. There is no room for a shoulder. They are struck by an uninsured driver with a suspended license. So what do they do? Why sue the city of course! It is tragic that they are quadraplegic. Still, I assume they had some personal insurance, like health insurance, and even homeowners insurance often has general liability coverage. But why the city ? And why 50 million dollars ?”In their lawsuit, the women alleged the city maintained a dangerous roadway.”Of course !“Initially the city tried to avoid liability,” Callahan said. “Granted that Bradshaw bore some of the responsibility but what actually happened was that this roadway was maintained in an unsafe way for many years.”You’d think the city put up the 200 foot bluffs that line one side of the road and the railroad that blocks off the other side. The railroad has been there long before the city was thought of. This is just the good ‘ol US way; “sue the bastards.”The article notes: “The community has supported the families since the accident with fundraisers and helping them refurbish their homes.” I wonder if that wlll continue once the news gets around? I wouldn’t.If the street was any other street, there might be a valid theory of liability. This stretch of Coast Highway has been there for a century and is periodically closed by slides from the bluffs above. The city has no option except, perhaps, to have excluded it from the city boundaries when they incorporated the old Capistrano Beach community. I used to live on that bluff and am very famliar with that road. This is legal opportunism at its worst and why so many people don’t like lawyers. I suspect the city would like to just close it as it is unafe but not because of the city’s actions. Unfortunately, it is the only route through the area that avoids the freeway. If were a jogger, I would choose one of the hundred miles of jogging routes in the beach area that is not a narrow road with no shoulder. But that assumes I am responsible for myself. I am obviously in the minority these days.Maybe the city should put up a sign that says anyone dumb enough to jog there has to agree to binding arbitration.
AAAAGH. $50 million seems mighty excessive. And it’s for the medical care, or so we are led to believe by lawyer Callahan. And it is paid for by insurance, which is getting to be a quasi-governmental entity.
Lately I’ve been mulling over the ultimatum game , which deals with how much unfairness one will put up with until you just quit playing the game completely. Many immigrants don’t buy insurance, and avoid taxes, from their experience that such transaction are sucked off by the official leeches in their old countries. If we keep paying $50 mil to traffic accident victims, I imagine more native born people are going to opt out of the system.
That lawyer, I believe, is the father of one of Annie’s schoolmates. I’ve been to his house. Remember “Gone With the Wind”? Well, that’s where those huge settlements go. I won’t mention what his son says about him.
Besides being a litigiously obsessed culture, we are also a ‘make someone pay for my bad luck’ culture too. It makes me think about other countries and when castrophes strike, whether natural (floods, famine, etc) or tragic accidents like the aforementioned, you never hear about lawsuits and phenomenal settlements. Mostly you hear about people struggling to get on with the business of living… this disease doesn’t seem to be as prevalent any where else.
I notice that this case was a government (city) paying off before trial. In my experience, a lot of public officials fold in the face of any negative publicity. And, we seem to be selecting public servants who are geared to just give stuff away.
From this piece, and the comments from the Kevin Drum link, it seems there aren’t too many people who think a trial brings about a fair and efficient conclusion. Callahan and his ilk have sabotaged the system in their favor.
Somewhere in the ether there must be a line about insurance companies being collection agencies for lawyers.
As a defense lawyer, I am acutely aware that plaintiff attorneys make lots of money. I work just as hard as they and wouldn;t object to a little redistribution of wealth. That said, I fell compelled to point out:
1. The point about binding arbitration in the beginningof the piece is inapplicable. The parties have to agree to binding arbitration; sometimes in a personal injury matter they can agree after the incident but there is rarely a contract with an arbitration provision. Binding arbitration has its own problems and doesn’t save parties the money that it purports to, but that is a different rant
2. As a defense lawyer, I have defended public entities, insurance companies, and private individuals covered by insurance companies. First, public entities are rarely covered by insurance companies per se. Second, the plaintiffs’ own homeowners general liabilty coverage would not provide coverage for this loss, and the insureds (the joggers) were not alleged to have any liability, which is what triggers that coverage.
3. Perhaps most importantly, while $50 million is a hell of a lot of money even in a personal injruy suit, this was a SETTLEMENT, not a verdict. That is to say, the defendant agreed to pay. When a jury imposes a miscarriage of justice upoin you, you get to appeal, and you get to complain. When you settle (agree) to the result, unless you’re Larry Craig, you don’t get to complain. If, as a defendant, you think the proposed settlement is too much, then you don’t agree and take your chances with the jury. You don’t pay more than you think you might be held liable for after trial. Extra extra true if we’re talking in eight figure ranges. You don’t agree to pay $50 million unless you think you’ll probably get hit for more at trial. And you don’t convince yourself that you’ll get hit for more than $50 million at trial unless you’ve done something bad. Really bad. Plaintiff attorneys ask for crazy unreasonable amounts all the time. My profession is to tell them to pound sand. I like to do that. I don;t recommend that my client pay lots of money unless they have real liability. My inclinations in this regard are not uncommon among the defense bar including, I imagine, the attorneys defending the City of Dana Point
4. The blog entry describes me as a “trial lawyer.” My practice is 100% litigation so that is tecnically true. However, as a right wing talk radio buzzword, the term “trial lawyer” is used to mean plaintiff’s attorneys, which I am not. So if you’re using the term “trial lawyers” as a talk radio-parroting buzzword and in the same you sue the term “Islamofascism” then I’m not that kind of trial lawyer. If you’re talking about “trial lawyers” and you really mean “litigation attorneys” as apposed to “transactional attorneys” then I’m your guy.
I will add to my son’s comments a bit to clarify. I took the Kevin Drum piece about arbitration as a subject only to counterpoint the huge (and unjustified in my opinion) settlement. I agree that unanticipated incidents are usually not subject to arbitration agreements. Still, the fact that the 50 million was a settlement is not that good an argument as it was obviously a settlement made under duress and not subject to the actual damages. The city feared what an unscrupulous lawyer might get a jury to award. As far as the plaintiffs’ lack of liability, that was part of my point. They went jogging in an area that allowed no escape from the drunken insolvent who ran them down. Maybe they should have sued the judge who let him out on the streets. Of course, the judge does not have the deep pockets of the city. Their own attorney acknowledged that they were partly at fault.
Here my son and I disagree. “And you don’t convince yourself that you’ll get hit for more than $50 million at trial unless you’ve done something bad. Really bad. Plaintiff attorneys ask for crazy unreasonable amounts all the time. My profession is to tell them to pound sand. I like to do that. I don’t recommend that my client pay lots of money unless they have real liability.” He defends cement companies whose product has cracked in a parking structure. There is simply no comparison with the pitiful victims of personal injury or medical catastrophes. John Edwards became a Senator on the backs of hapless OB doctors who delivered babies with cerebral palsy. In the medical literature, cerebral palsy is a phenomenon of intra-uterine life, probably due to a stroke of some sort well before labor. In the jury room, filled with faithful watchers of Oprah’s show, it is a tort, a willful act of a careless doctor. The fact that small towns don’t have OB doctors anymore is not the problem of that lawyer or that jury.
I am proud of my son and, if he wants to be called a “consumer attorney” or whatever the current euphemism is, that’s fine with me.