I respectfully dissent

I respectfully dissent

My blog and welcome to it.

Random thoughts, ramblings and rants about things legal, illegal, tortious, outrageous and otherwise.

Every time I wonder why people have a low opinion of lawyers, someone like this guy comes along to remind me.

I thought I was familiar with every disgusting item available in a typical grocery store: souse, gefilte fish, brains, tongue, pigs feet, stomach etc. But last night at Food Lion my own worst nightmare was in the meat case at $1.29 per pound. Chicken paws. There in that ordinary white styrofoam meat tray was about two dozen severed chicken feet. I had no idea that anyone would eat those or that anyone would actually pay for something like that except for a fraternity hazing incident.

That's where we find ourselves, according to Newsweek. Ministers are afraid to hug parishioners, softball tournaments are cancelled, cities are going broke, doctors are quitting and students are suing their teachers. The piece pays a lot of attention to Phillip K. Howard, a partner at Covington & Burling, a 500-lawyer firm not known for its affinity for the little man. The article claims that litigation costs an

estimated $200 billion a year, more than half of it for legal fees and costs that could be used to hire more police or firefighters or teachers.

There was no source for that estimate or any explanation for what it supposedly included or who in the government agreed that the $200 billion saved would be devoted to teachers and firefighters. How much tobacco settlement money was devoted to teachers, firefighters or health?

The story used a few cases to illustrate what is wrong with the system:

A cheerleading coach sued when she did not pick a student for the squad,
A charity softball tournament cancelled when a player who broke his leg during the game sued,
A psychiatric patient who sued a mental hospital who failed to prevent her from overdosing and hurting herself,
A mother who sued a school after her daughter peformed oral sex on a boy while returning on a school bus from a band contest.

Assuming all of the cases above are baseless, they are not a reason to re-make the judicial system. In a nation of 300 million people, there will be at least a million kooks (probably a lot more, it seems to me). You don't overhaul the constitution just because a few kooks filed some lawsuits.

Most people greatly exaggerate the likelihood that they will be sued. They hear on the news that some kook has filed suit over something frivolous (fast food, disappointed would-be cheerleader, etc.) and they are terrified. The fact that the suit is later dismissed is never as newsworthy as the filing. Even though I spend a lot of time in court, I see few truly baseless cases, probably less than 1 or 2 percent of cases filed. People are terrified of being sued, but few teachers, coaches or ministers are actually sued. While we say that litigation is paralyzing business, it is more accurate to say that an unreasonable fear of litigation is paralyzing business. Some of that is the because lawsuits make the news, some of it is because lawyers can puff their own worth by letting everyone know what a jungle it is out there.

The human mind does not deal rationally with risk and probability. We drive to the drug store to get a mask to prevent SARS even though we risked more death during the drive over than SARS ever posed. We buy duct tape and plastic for an anti-terror barrier but we don't change the batteries in our smoke detectors. If you want to minimize the risk of being successfully sued, examine your behavior and change it minimize the risk of harm to others. Then forget about the fear of lawsuits and read a book, play softball or go to the beach. Don't cower in fear behind a phalanx of lawyers because some kook could sue. We outnumber them.

It is true that cities like New York and Chicago have huge legal bills. They are massive entities that employ thousands who drive subways, buses, garbage trucks, and police cars. Those employees will negligently injure others with some frequency. Those employees also have been known to intentionally injure others (ask Amoudo Diallo). No tort reform will change big legal bills for cities or states.

Maybe the Sheriff's department got its decal at a Sheriff Hege liquidation sale.

Timbers (short for Shiver Me Timbers), a Top 12 dog, makes the cover of Dog News.

Some TV reporters have shown that the woman trampled in a Wal-Mart is a frequent filer of injury claims (including 9 so far against Wal-Mart).

Sam Walton would turn over in his grave if he knew of this, except that with Wal-Mart's luck the motion would cause this woman to slip and fall.

Ask Junior Allen, who has served 33 years of a life sentence for a second-degree burglary conviction in which he stole a TV. (Story here). Allen has been denied parole at least 25 times. Allen had his latest parole hearing Tuesday (12/2/2003) and his attorney expects a decision in two weeks. Even a prosecutor from the county where Allen was convicted told the Parole Commission that Allen should be released. I guess after 25 years of hearings with Allen the Commission needs time to gather its thoughts.

If you tried to design a system to require the maximum effort to get minimal result you would design the court system we have in North Carolina. I made this comment several weeks ago while I was in court waiting. A session had been scheduled with several cases on for trial but on the Friday before the session all the lawyers were told that no cases could be tried since the session had been scheduled the week of a statewide judge's conference. There must have been 30-40 lawyers in the courtroom billing at least $175 an hour to hear when their case was continued to. This week I travelled to Greensboro and waited 45 minutes in court at a hearing at which the only thing I had to say was "Feberurary 3, 2004 would be fine with me, your honor." (Full disclosure: I general used fixed fees for cases rather hourly billing). Today I waited in court 3 hours for the DA to dismiss a particularly weak criminal case. (More full disclosure: it was a court-appointed case so taxpayer will be stuck with the $65 per hour tab for that)

Recently suggestion boxes appeared at the courthouse asking "how are we doing?" with some sort of survey about how satisfied people are with the courts. I hope the state did not spend much on that project, because everyone knows the answer is "badly." The court system groans along like some kind of Soviet-era department store. There is only one item available, it is expensive, you have to pay cash, bring exact change and the cashier is surly. No business would try to conduct its affairs the way our court system does. All filings are on paper. Computer terminals provide little information about individual cases. You have to stand in one line to request copies of a file and go to another line to pay. Only cash is acceptable. Defendants who want to pay $100 of their $200 fine and costs are told only full payments are acceptable. Cases come up two or three times before they are disposed of.

I thought of that as a purchased some items at Lowes a few weeks ago. The clerk scanned the items, totalled them, I paid with a debit card and signed my name on a screen. No paper. Lowes doesn't do this because they've got money to burn but because paper-based systems are so inefficient they could never keep up. Imagine if everytime I went to make a purchase someone had to locate the Bryan Gates file and then find the list of prices and write out the receipt by hand.

About a decade ago a group a big thinkers from law and business did a thorough review of the statewide court system and recommended an overhaul. To date exactly none of their suggestions have been implemented. Too many political toes were trod upon and too many local fiefdoms were threatened.

So we plod along and wonder when things will grind to a halt.

"The 4th Circuit [Court of Appeals] is a little more intellectual than the 5th, so they paper it over better when they screw you."

--Thomas P. Sullivan (former Carter-era U.S. Attorney) quoted in ABA Journal

If you believe that bidness ties between a Corrections official and local landowner had nothing to do with Greene County paying twice the appraised value for land to build a prison on (N&O story), I've got a bridge in London I'd love to sell you.

Hearing that county taxpayers are shelling out three-quarters of a million dollars to buy land to donate to the state to lure a prison there gives me the Folsom Prison Blues. As the Man in Black said -- "I bet there's rich folk eatin' in a fancy dining car. They're prob'ly drinkin' coffee and smokin' big cigars." Someone's getting rich, but it won't be the Greene County citizens.

Update: The N&O reports that Eddie Carrol Thomas has resigned from his state job just as an investigation begins into 170 calls from his office to the Department of Correction secretary. Thomas went into business with a landowner who sold the land to the county to build the prison. Oh and guess what agency Thomas resigned from -- the Department of Transportation. Ever notice how the Road to Perdition always seems to run through the DOT? At least the investigation will be handled by a state agency experienced in investigating itself for corruption. About every 6 weeks or so the DOT has a new scandal to investigate.

Meet the blogger at www.attorneygates.com

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Terror threat level

"The world breaks everyone and afterward many are strong at the broken places. But those that will not break, it kills. It kills the very good and the very gentle and the very brave impartially. If you are none of these you can be sure that it will kill you too but there will be no special hurry."

-Ernest Hemmingway

The Law Guy Thinks Out Loud