Friday, August 28, 2009

Attorneys' Approval Rating Is No Suprise

Well, the results are in. The legal profession has a 25% approval rating, according to a recent Gallup poll. Although how we're viewed by the public is never more than a passing curiousity to me, the results are hardly suprising.

Some of the reasons for our low ratings are built into the system. For example, many don't understand how or why criminal defense lawyers defend those charged with a crime (despite our Constitution, which mandates it). TV shows have lampooned us for years. Many politicians are lawyers. I get all that.

But in my field of work, personal injury litigation, I think some of the contributing factors are much clearer than we would like to admit. Some of my colleagues justify our low approval ratings by pointing out that the insurance industry, corporate America, medical groups, The Chamber of Commerce, and artificial turf "citizens groups" (which are funded by most or all of the above) have been engaged in an orchestrated propaganda campaign, spanning over 40 years now, to discredit trial lawyers, lawsuits, juries--you name it--as I've written about here in a past post:
The biggest cheerleader for all this legal reform? None other than AIG Chairman and CEO ($29 million per year) Maurice Greenberg. Below is an excerpt from an excellent article in The Washington Monthly chronicling the orchestrated movement by big business and insurance companies to restrict personal injury lawsuits:

In the mid-1980s, with insurance companies hitting a slump, the insurance industry's "tort reform" movement, as it became known, broadened its emphasis. Instead of limiting itself to targeting individual jurors through mass media advertising, the industry began to heavily lobby legislators to restrict citizens' ability to sue. The movement pursued strict caps on damage awards, tougher standards for proving liability, and caps on plaintiffs' attorney fees. The industry's crusade was taken up by small government conservatives, who believed that tort reform paralleled their own efforts to fill the federal bench with pro-business jurists and roll back government regulations. They were also upset by changes in the 1960s and 1970s that broadened legal protections for women and minorities, such as the 1964 Civil Rights Act, and the expansion of product liability doctrines that made it easier for injured consumers to force companies to compensate them for faulty products. Politically, it was a lot easier to attack juries and trial lawyers than the popular consumer, civil rights, and environmental protection laws they enforced--or the injured victims they represented.

Advertising was a key component of those efforts. In 1986, Newsweek ran a series of ads sponsored by the insurance industry under the heading, "We all pay the price." The ads warned that lawsuits were driving ob/gyns out of business, shuttering local school sports programs, and scaring the clergy out of counseling their flocks--though few of these assertions turned out to be true. That same year, 1,600 tort reform measures were introduced in 44 state legislatures, 21 of which passed significant restrictions on lawsuits and jury awards before adjourning.

Tort reformers still weren't satisfied but were hamstrung by the fact that most Americans didn't see lawsuits as a huge problem. After all, most people never have any contact with the legal system unless they're getting divorced. So, a group of corporate leaders, including AIG's Greenberg, set about to change that by pumping money into right-wing think tanks to prepare a body of "evidence" proving that not only was there a crisis in the courthouse but also that "we all pay the price" as a result.

Sound familiar? This machine has been running since the 1980's! And my colleagues are right-- to a degree. But what many of them refuse to mention, or fail to acknowledge, is an undeniable truth: we have, during this same time, continually shot our collective selves in both feet, arms, legs, and many vital organs as well.

Involved in a minor fender bender that was not your fault? Or did you experience a personal tragedy of losing a loved one in an automobile collision? Well, no matter what happened, you can expect 10-20 "solicitation letters" to arrive at your mailbox within a matter of days.

Watching the Indians game (although I wonder who if anyone is masochistic enough to suffer through watching them this year)? Expect to be bombarded with commercials from dozens of personal injury firms from both Ohio and who knows where else, expressing concern over your plight, and promises to deliver justice and "make them pay."

Want to order a pizza during the game? Don't expect to find your favorite shop on the back cover of the phone book. When I have to travel for a case, I always find the hotel's courtesy local phone book. No matter where I am in the U.S., there is always a law firm on the back cover. I wonder in passing if Congress passed some obscure federal law mandating law firm ads on the back covers of all phone books.

The list goes on and on. Billboards, buses, neat trucks with side panel, rotating messages, you name it. All we need to do is look in the collective mirror and we find the answer: the enemy is us. What we have done to ourselves is just as bad as what the other side has done to us. Are we really suprised that our approval rating is what it is?

Look, this is America. All of this stuff is legal under our First Amendment. The firms which advertise in this manner have every right to choose to do so. And not all of the TV ads are tasteless. But as a firm that does not engage in the practice of mass advertising, and views the practice of sending solicitation letters as downright offensive, we non-participators every right to point out that the cumulative effect of it all has done way more harm than good.

And quite frankly, I'm tired of being tarred with the same brush when I explain what I do for a living, or pick a jury and have to listen to all the complaints about offensive letters or cheesy ads.

It seems to me that have we resigned ourselves as a profession to the notion that "we'll never be popular anyway, so let's just have a race to the bottom" with all the ads and other tasteless marketing. Hmmm. Reminds me of what my Dad told me a long time ago: "If you want to get out of a hole, stop digging!"

Just turn on the TV and watch the dirt fly..........

Jury Verdicts In Product Liability Cases--And Why You Won't Hear Much About This Verdict In The Media

A jury in Texas recently decided that Yamaha was not liable for the death of a 13 year old child who died in a rollover accident while driving a "Rhino" all terrain vehicle. Yamaha stopped selling the Rhino in April, 2009. Fifty nine people have died while operating this vehicle (which looks like a souped up golf cart)and two thirds of accidents involving it have involved rollovers.

Nevertheless, this jury weighed the evidence and found that Yamaha was not negligent. It is impossible to determine what exactly the jury based its decision on, as we don't know what evidence the jury heard, what evidence was admitted or excluded from trial, etc. But the larger point is that "tort reformers" and The Chamber of Commerce are constantly arguing that juries can't be trusted and need to be "reigned in" since they are prone to sympathy for the victims' family and frequently return enormous verdicts against big corporations due to a "litigation lottery" mentality.

We personal injury attorneys who represent families in cases like this know that this argument is a an exaggeration at best and a lie at worst. The purpose of this disengenuous PR campaign is to convince legislators to pass arbitrary limits on lawsuit recoveries in order to take away the power of juries to decide these cases. Their modus operandi is this: wait for a jury anywhere to return a large verdict against a corporation, and then use the verdict as the poster child for what's wrong with our civil justice system, and why we need "tort reform."

I can't think of a more sympathetic situation than a 13 year old child who died while operating a recreational vehicle for fun. Yet, apparently this jury was not swayed by this.

You won't hear Corporate America or The Chamber squawking about this verdict because it disproves their "juries are too stupid to be trusted to decide these cases" theory. But I can guarantee you that if this jury returned a verdict for money damages in favor of the family, they'd be dusting off the old broken record about "runaway juries" and playing it again in the media.

Monday, August 24, 2009

Caps On Damages In Lawsuits--Be Careful What You Wish For...

A few years back, I represented an absolutely wonderful man who was catastrophically injured in a trucking collision. After years of litigation, we were able to settle his claim to make sure all of his future medical needs were taken care of.

I still keep in touch with him and we spoke the other day. He informed me that one of his recent medications cost $4,000 for a two week prescription. That's not a typo. He told me: "I don't know what we would have done without the settlement."

At the time of his settlement, there were no "caps" or limits on what he could recover in his lawsuit. As of 2005 in Ohio, now there ARE caps on what innocent victims can recover in any personal injury lawsuit, whether it is an injury due to malpractice, a drunk driver, or a truck driver who never should have been behind the wheel. If these caps were in place, I doubt he would have been able to afford this medication.

Recently, medical groups and insurance companies have been pushing a national cap on damages in medical lawsuits as part of health care "reform." What many people don't realize is that these proposed caps apply in cases where the injured victim is 100% innocent and when the medical provider committed indusputable malpractice. No exceptions. Essentially, these groups are saying: if you're maimed or in a wheelchair, your individual rights must be sacrificed for the good of the whole.

Gee, this sounds like....hmmm...."socialism?" You bet. The lesson: be careful what you wish for. You may just get it. And when you do, you'll be saying what a lot of Ohioans are asking me now: "why are we as innocent victims who did nothing wrong having our recovery arbitrarily capped--the only party benefitting from this are the insurance companies!"


Friday, August 21, 2009

Focusing On The Positive In This World

Permit an off topic diversion from legal "things." It's easy to fall into a rut. Pressures abound: work and trying to do your best for clients or your employer, raising a family, trying to run a business in one of the worst economic times ever. Nobody is immune to this. And we are at a time in this country when our civility towards one another is at an all time low. We are shouting more and more at each other and nobody seems to listen any more. Negativity, fear, and paranoia seem to be only a remote control or mouse click away.

And then you are hit with a thunderbolt of hope and decency that cleanses all the negativity away like a long, hot shower. My wife introduced me to a fellow photographer's blog that she follows. His name is Zach Arias. He recently posted an incredible video he took of a door to door salesman named Derrick. The video is unbelievely inspirational, and I encourage you to watch it (it gets really interesting after Derrick's standard sales "pitch"):

We can all use a healthy dose of perspective and inspiration as we face the challenges of life. Derrick's message does that, and let's us know that being positive in the face of adversity, no matter where you draw your inspiration from, is the only true antibiotic for what ails us.

One other thing: Zack also set up a virtual product account for Derrick to allow people to assist him. You can visit Zach's website to make a donation. It's people like Zach and Derrick like this that re-affirm my faith in the beauty of the human spirit, and it can't come at a more opportune time in our country. There is beauty and inspiration all around us. Sometimes we find it when we least expect it, by reading an Internet blog post based upon a ramdom meeting of strangers, and a video camera.

A special thanks to my wife for turning me on to this. She inspires me in so many ways...

Wednesday, August 19, 2009

Ohio Pharmacist Going To Jail Over Botched Prescription

Recently, Ohio pharmacist Eric Cropp was sentenced to jail over the gross mishandling of a chemotherapy prescription that tragically took the life of a two year old child. You can read about it here.

Apparently a pharmacy technician mislabeled saline solution as a chemotherapy solution and the pharmacist had ample opportunity to catch the error and didn't. He was charged with involuntary manslaughter and pled no contest. The tragic death of Emily Jerry led to the passage of Emily's law, which now mandates strict qualifications for pharmacy techs.

But I must admit to having reservations and mixed feelings about criminalizing the pharmacist's conduct in this case. Was he grossly negligent? If this article is accurate, yes. Should a malpractice lawsuit be brought against him? A no brainer. Was his conduct egregious enough to warrant imposing punitive damages against him personally in a civil malpractice lawsuit (damages specifically designed to punish wrongdoers for conduct that is more than just negligent)? Again, yes. Should he lose his license? Yes, in this case--in fact, he did.

In fairness, there is a difference between incompetently handling a prescription and transforming an act of gross malpractice/negligence into a criminal involuntary manslaughter charge. Criminally prosecuting and sentencing a medical professional is essentially unheard of as a result of a preventable medical mistake--in fact, as far as I know, this has never happened before in Ohio. And doctors hardly EVER lose their license when they commit malpractice, as I have written about here. Ohio malpractice laws allow for suing him and even imposing punitive damages against him, and are considered the only remedy for a deceased person's family.

I'm not sure what purpose charging him criminally and sentencing him to prison will serve at this point. This is a tough call for me since I have represented many families harmed by medical and pharmaceutical errors. Their lives are never the same. And we personal injurty attorneys are often portrayed (wrongly) as unfairly targeting and having no sympathy for the medical profession.

Criminally charging a medical professional in a case like this is a rare situation and is unlikely to ever occur again. Unfortunately, preventable medical errors like this one are NOT rare. As The North Carolina Board Of Pharmacy recently noted:
Communication failures between technicians
and pharmacists, IV compounder-related failures, inadequate
documentation of the exact products and amounts of additives,
and other system issues have contributed to numerous
fatal errors.

My gut reaction, however, is that it just seems to be too harsh of a penalty in this case. Perhaps I would feel differently if it were my child. It's a tragedy any way you look at it. My sympathy goes out to all involved. Hopefully some good will come of it, and the recent law changes will make us all safer. But at a minimum, it proves once again that our medical system is still frequently riddled with preventable medical mistakes. Remember that when you hear all the rhetoric about our "runaway litigation climate" and the clarion calls for "medical malpractice reform" in the current health care "debate" (and I use that term loosely after seeing how embarrasingly ugly and rude and uncivil we as a nation have become recently).

Thursday, August 13, 2009

More Proof Of Doctor/Chiropractor/Attorney Treatment Mills-- Auto Accident Victims Beware

Recently I wrote here about how to identify and stay away from medical providers who are running "treatment mills" if you are an auto accident victim looking for a medical provider or an attorney. A recent online article goes into great detail as to how these "operations" worked in certain states like New Jersey. The author, Susie Madrak, was a former fraud investigator for an insurance company.

It's just more proof that you as a consumer need to be educated as to how to avoid this mess, and choose a medical provider and an attorney who will look out for your best interests, and not theirs'.

(More information about this issue is available in our FREE book, "Your Ohio Accident...And How To Level The PLaying Field." Just click on the cover of the book and we'll send you a copy).

Sunday, August 9, 2009

I Was Injured In An Auto Accident--What Is My Case Worth?

Last week I met with a potential client who was injured in a collision. She had met previously with another attorney, who told her at the initial meeting what her case was worth. The client was rather taken aback by this (which is why she came to see me), and I don't blame her. After over twenty years of handling Ohio auto and trucking personal injury cases, I'm still amazed when I hear from clients that other attorneys have told them what their case is worth over the phone or at the first meeting. This is wrong, premature, and is often the byproduct of ignorance or arrogance.

Every person's case is like a fingerprint--each one is unique. Evaluating a case involves reviewing a litany of information such as the accident report, the client's medical treatment records, the client's past medical history, his or her recovery or prognosis, and all other relevant information. This process takes time, and often can't be completed until the client is finished with medical treatment.

What's more, any injury claim will often take on a life of its own. Like life in general, some cases will get better over time and some get worse. Here's a perfect example. Sometimes clients will be involved a horrible collision, like a rollover. Some will initially be stiff and sore and bruised all over. Many suffer neck or other orthopaedic complaints. Some of those orthopaedic problems require extensive follow up treatment. On the other hand, some clients, because of good genes, good pre-accident health, or sheer luck, will make remarkable recoveries with very little treatment.

You never know how or when you'll recover until after the passage of some time. That's why it's presumptuous for personal injury attorneys to presume in all knowing fashion at the initial meeting that they know what your claim is worth because they've "seen this before." Your case value should be based upon the unique facts of your case, and not what your neighbor or Uncle Willie settled his case for three years ago.

At the right time, you should be told a monetary range of what your case is worth. The initial client meeting is the wrong time. But hey, if you want to choose an attorney who can tell you in drive thru fashion what your case is worth, that's your choice. Just remember that with any drive thru, sometimes they mess up your order...

Tuesday, August 4, 2009


This is a frequently asked question. First, let’s knock down a myth that some people believe when it comes to injuries that occur on someone’s premises, whether it’s a home or a business.

General Rule No 1: You as a landowner or business owner are NOT automatically liable if someone slips or trips or falls on your property. You are only liable if you as a homeowner, or your employees if you own a business, were NEGLIGENT.

This same rule holds true if YOU were injured or fell in a store; the store is not liable unless you prove it was negligent. However, courtesy of two recent Ohio Supreme Court cases, proving a store’s negligence just got a lot harder. First, you now have to show that the hazard that caused you to fall was not “open and obvious” or your case will get thrown out of court.

EXAMPLE: You are pushing a shopping cart in a grocery store. A stock clerk negligently spills some detergent or leaves a pallet on the floor at the end of an isle. Problem: you can’t see it because it’s lying in an area where you are turning the corner as you push your cart. You fall or trip and break your hip. You tell the manager: “I had no idea it was there because I was pushing my cart and coming around the corner.”

Under the “open and obvious” rule, the store can say, “well, it was open and obvious if you had just looked where you were going” and the chances are great that your case will get thrown out of court. Never mind the fact that the detergent or pallet or whatever was on the floor HAD NO BUSINESS BEING THERE AND THE STORE KNEW ABOUT IT AND NEGLIGENTLY CREATED THE HAZARD FOR UNSUSPECTING SHOPPERS! In fact, the store employees could actually ignore the store manager's order to clean the spill immediately and it wouldn't matter, as long as the condition is "open and obvious."

It gets worse. Under a June, 2009 Ohio Supreme Court case, a business owner can even violate the provisions of The Ohio Basic Building Code (which regulates things like stair heighth, handrails, and other safety features in buildings) and still use the open and obvious defense to avoid responsibility for its own negligence!

In that case, a frail 78 year old man who carried an oxygen tank called ahead for a motel room and specifically reserved a handicapped room so he wouldn’t have to climb any stairs. When he and his wife arrived, the room was already rented, so they were given a room requiring the man to climb two steps. Here was the problem: the steps were in violation of the building code because they were almost 2.5 inches higher than what was legally allowed. You can guess what happened: he fell, broke his hip, and died three months later from all kinds of complications.

The injured man went out of his way to avoid having to negotiate any steps, was forced to negotiate two steps that were too high, in admitted violation of the Ohio Building Code, and STILL got his case tossed out of court. Why? The condition of the steps were “open and obvious.” This ruling just made it a lot harder to pursue lawsuits where someone is injured on another's business property.

These rulings are GREAT for the insurance companies who insure stores, motels, malls, and other businesses. Now, no matter what condition a store is in, and no matter how preventable these falls are, department stores and big retailers can now leave huge messes, objects, and clutter wherever they want. And they can potentially deny responsibility of preventable, legitimate injuries as long as their mess was “open and obvious.” And you as the injured consumer are left holding the bag.