cyrus dugger's blog

Think Tanks or in the Tank (vol. 2): eSapience & Hank Greenberg

Thu, 24 May 2007 08:27:08 -0700

Cross-posted from Tort Deform

On May 7th Rick Cohen wrote an enlightening piece for Tort Deform about Hank Greenberg. As stated by Cohen:

In well publicized run-ins with the Securities and Exchange Commission and the former Attorney General of New York, Maurice “Hank” Greenberg became an avatar of the corporate movement to overturn Sarbanes-Oxley and to promote so-called tort reform. The SEC’s investigation of AIG had prompted the corporation to ease Greenberg out of the top slot.

Spitzer's charges addressed Greenberg’s administration of the estate of C.V. Starr, the founder of American International Group, the insurance behemoth that Greenberg also ran. According to the AG, Greenberg and partners as executors of the state has sold Starr assets to a firm he controlled at allegedly less than the market rate. Since the estate was meant to benefit the Starr Foundation, which Greenberg chaired, the AG charged that Starr has shortchanged his own foundation several billion dollars.

Starr didn’t take the accusations kindly, launching an all-out crusade against Sarbanes-Oxley-type oversight of corporate accountability and against the sullying of his reputation. Part of it seems to have been a massive amount of Starr Foundation grants to the National Chamber Foundation, an “educational” arm of the U.S. Chamber of Commerce addressing issues of government oversight and tort reform (Greenberg notoriously has referred to tort lawyers as “terrorists”). No surprise, but the Chamber and its CEO, Tom Donohue, have been supportive of AIG and Greenberg personally. (link)

In response to these events, Greenberg actually launched a PR campaign to re-build his and his institution’s image. As described by Cohen:

In one instance, Greenberg’s investment company, C.V. Starr & Co., hired an entity called eSapience, based in Cambridge MA, to do some personal image-burnishing. A number of conservative scholars dedicated to free-market business theories run—or ran—eSapience, including the dean of the MIT Sloan School of Management. Probably no one would have noticed eSapience’s contractual relationship with Greenberg and C.V Starr & Co. had the firm not filed suit in U.S. District Court alleging that it had been stiffed for over $2 million in expenses (since the litigation, the website of www.esapience.org has been largely down). (link)

Now you can take a close look at the strategy memo of the PR campaign (now a court document) describing in detail exactly the duties of this PR firm vis-a-vi Greenberg.

Before looking at the document here are some choice quotes:

“Our goal is to position Mr. Greenberg as a visible and highly credible public intellectual on a small set of issues that are completely unrelated to his current legal situation.”

“Our goal is to provide a foundational understanding of the industry’s business practices, economic underpinnings, and legal/regulatory environment, and to represent it as one which also operates within a complex maze of tax, accounting and regulatory law created by the government that necessarily invites confusion and ambiguity.” (emphasis added)

“Our [core team] consists of an independent network of academics, economists, legal scholars and other public intellectuals. They [Richard Epstein, David Evans, Andrei Hagiu, Robert Han, Keith Hylton, Josh Lerner, Richard Schmalensee] are highly respected and regarded by the public and their peers as independently minded. Because they are not “hired guns,” they are influential and listened to.” [Note that the hourly rate paid by eSapience for academics is $400-1000/ an hour for these non-“hired guns”]

“Our goal is to keep our core team small and tightly controlled.”

Note that based on the rates that eSapience was willing to pay to implement its plan, the right wing seems to have more money than God:

“Hourly rates vary. Academic billing rates range from $400/hour to 1,000/hour”

“Consulting team billing rates range from $175/hour to 600/hour”

The document begins below and continues after the fold as a series of images.

The Case for Civil Gideon

Thu, 17 May 2007 08:28:41 -0700

Cross-posted from “Family Law Civil Gideon: are free lawyers always the best approach” on the Self-Help Law ExPress.

With all due respect to an experienced supporter of pro se litigants, I take great issue with David Giacalone’s characterization of civil Gideon and the effects that it would have on those who can’t afford lawyers in important civil proceedings.

Surprisingly, Giacalone has aligned himself with Walter Olson (or Olson aligned himself with him) in apparently opposing the creation of civil Gideon (a right to civil counsel in important civil proceedings). In Olson’s words, civil Gideon is not only just a bad idea, but “actually quite scary in its implications.”

Who knew that giving low-income persons an attorney and not requiring them to litigate their basic human needs without professional legal assistance was something that could be characterized as “scary.”

Last fall, the American Bar Association ("ABA") took the first historic step to correct this problem by passing a resolution endorsing a right to counsel for low-income persons whose basic human necessities are put in jeopardy.

RESOLVED, That the American Bar Association urges federal, state, and territorial governments to provide legal counsel as a matter of right at public expense to low income persons in those categories of adversarial proceedings where basic human needs are at stake, such as those involving shelter, sustenance, safety, health or child custody as determined by each jurisdiction. (link)

Here, the right endorsed by the ABA is not a right to an attorney if you get a paper cut, but is targeted specifically at low-income persons whose basic human needs are at stake. Olson (of the conservative Manhattan Institute) and Giacalone sit on the opposing side of the ABA’s resolution and apparently oppose this reasonable right. Indeed, the right is seen by the American public as so reasonable that almost 80% of Americans assume that it already exists.

To see the issue otherwise embraces the rather absurd proposition that one should be entitled to an attorney when they risk spending even just a day in jail, but should not have this same entitlement to a lawyer to defend against an eviction that may throw them and/or their family into permanent homelessness.

Taking Olson and Giacalone’s position further also requires accepting the proposition that an unrepresented pro se litigant can (on average) better litigate their interests than a trained attorney who at the very least went through three years of specialized training in law school and passed the state’s bar exam (the caveat being that it is still true that the attorney’s motivation to do an excellent job is affected by other factors as discussed in more detail below).

However, given Giacalone’s background and expertise in assisting unrepresented clients his specific arguments are very much worth real consideration and debate.

Here are Giacalone’s major concerns, and my point by point response to each.

1) Giacalone: “[Civil Gideon] looks far too much like an Attorney Employment Assurance Plan for underemployed members of the Main Street bar. In addition, Civil Gideon is backed by some groups that resisted court-based self-help centers, for fear they would undermine legal aid budgets, as well as by private lawyer groups who resisted both self-help centers and alternative dispute programs at courts, for fear that they might lose clients or have cases shortened by settlements.”

Me: The internal politics of support for self-help funding is unfortunate, but have little to do with the validity, morality, necessity, and importance of a right to civil counsel (let alone any right at all). Unfortunately, because Legal Aid funding is constantly under threat, those supporting Legal Aid had a significant basis for concern that the funding for these services might be reduced by increased funding for self-help legal support. Pointedly, in inflation adjusted dollars, today Legal Aid receives just 49% of what it received in 1981. But even if a side effect of civil Gideon is that more lawyers have more work, so be it. The point is that unrepresented people not be dragged into court and asked to defend their interests without an attorney. In any event, surely the creation of a right to counsel can be supplemented by maintaining or slightly increasing self-help funding for those who are too well off to qualify for the assistance or for those low-income person who waive their right to counsel. Moreover, it should be the low-income person who makes the choice to waive a right to counsel, not those who provide self-help assistance who decide for them that counsel is not helpful.

2) Giacalone: It assumes that lawyers can do a better job than reasonably-informed laypersons in presenting cases that involve their families (or sustenance and housing conditions). This infantilizes litigants and denigrates the intelligence of the vast majority of pro se litigants, who know far better than any lawyer the facts of their situation and are capable of telling their stories to receptive judges. It also contradicts studies of family court lawyers; see below)

Me: I have to say that I find this argument similarly strange. Knowing “the facts of your situation” and being able to “tell your story” are different than navigating the procedures and technicalities of the legal system, and is even more different still than successfully gaining one’s desired outcome. Nothing keeps you from telling your story when you also have an attorney and/or doing so in a way that might help your legal case be effective. It’s rather "infantilizing" and "denigrating" to their intelligence to say that low-income lay persons can’t decide for themselves if they’d rather have a lawyer or not. The great weakness of the above point is that it for some reason assumes that self-help and being guaranteed a right to counsel are somehow inherently incompatible (perhaps Giacalone ironically feels this way because of a fear that civil Gideon will in turn take away funding from self-help services). Persons with lawyers are just as able to educate themselves about the legal system and direct their appointed attorney to take the appropriate actions in a more informed manner. Lastly, self-help also assumes that the pro se litigant has the time, energy, and resources to access to educate themselves of the law and relevant procedures. This reality means that the most desperate and least resourced persons are the least able to take advantage of self-help services. The fact that the assigned lawyers don’t have the pay incentives to care in many instances in civil and criminal cases is not a reason to reject civil Gideon, but a reason to increase the minimum pay of assigned counsel (as occurred in New York for criminal defense attorneys after this problem was publicized through the efforts of Chief Judge Judith Kaye). It "infantilizes" low-income persons to assume that they don’t want an attorney and would rather educate themselves about the law on the go.

3) Giacalone: It assumes that two opposing lawyers will more quickly and fairly settle a case than will unrepresented parties. (As Law Guardian for hundred of children in family court, I saw far too many cases where lawyers dragged out cases, inflamed conflict, misunderstood the basic needs of the parties.)

Me: This point speaks to instances where there are two counsel involved and the quality of their legal representation, but does not speak in any way to the issue of major concern of civil Gideon: when one person has to be in court against somebody with a lawyer. This circumstance is the most ripe for abuse and unfair results. Perhaps the most telling example of this phenomenon is NYC Housing Court:

“In New York City’s Housing Courts, the justice system is seriously out of balance: estimates show that about 90% of tenants face eviction alone, while about 98% of landlords have lawyers. Unrepresented tenants are far more likely to experience an unfavorable outcome than those who have lawyers.” (link)

Giacalone may be right (although in most instances if the parties could work it out on their own query why they would be in court) when no lawyers are involved, but he’s certainly not right when only one side has a lawyer. He's also even less right (at least about fairness) when one side doesn't even have the option to have one. It would be one thing if Giacalone was also arguing that both parties should agree to not use attorneys (and query again if they can agree to that why they couldn’t work out their conflict out of court), but he’s not. Instead he’s arguing for the status quote in which one side often goes in with a lawyer and the other does not.

4) Giacalone: It assumes that Assigned Counsel will competently and diligently represent their low income client (see discussion below).

Me: The cause of this problem of less than stellar representation is the low pay, high case load, and/or at times, the lack of specialization and experience of assigned counsel. These concerns are easily addressed. In a short policy brief drawing from the experience of the right to counsel in the criminal context, Laura K. Abel, Associate Director of the Brennan Center for Justice, addresses how to insure that civil Gideon be implemented in a way that maximizes the competence and diligence of the attorneys who fulfill this role (A Right to Counsel in Civil Cases: Lessons from Gideon v. Wainwright).

By drawing on the lessons of the implementation of a right to counsel in the criminal context Abel addresses the concern that Giacalone alludes to above. In short, the solution is: provision of adequate funding, exclusive use of institutional providers such as legal aid, appointment of counsel by an independent agency or board, establishment and enforcement of minimal standards for counsel, creation of a uniform system of representation across the state. If her recommendations are implemented the above point becomes mute.

5) Giacalone: It overlooks the fact that hiring an attorney virtually impoverishes, or is simply beyond the financial ability of, a very large portion of Americans who are not considered poor, but are far from rich — and, unlike self-help programs, Civil Gideon makes no accommodation for these people. [update: March 10, 2007: see our post “the dis-accessed middle class of North America,” which discusses the situation in Canada, as seen through the eyes of their Chief Justice.]

Me: If anything this point further supports the need for civil Gideon. If hiring an attorney virtually impoverishes middle-class persons, the impoverishment of low-income persons is not just “virtual,” but undeniable. Some European nations not only provide counsel to low-income persons, but also subsidize middle-class individuals for the reasons stated above. Giacalone’s observations argue in favor of the further extension of support for civil counsel beyond low-income persons, not the non-existence of the right for low-income persons. Ironically, the above cited post “the dis-accessed middle class of North America” includes quotes from the Canadian Chief Justice that argue against the effectiveness of self-representation as a primary tool.

“Injustice is, at times, compounded when people choosing to represent themselves are without the proper legal knowledge to do so. . . .”

“The Chief Justice also pointed out that “Putting the facts and the law before a judge [instead of use of a lawyer] may be an insurmountable hurdle. The trial judge may try to assist, but this raises the possibility that the judge may be seen as helping or partial to that person. The proceedings adjourn or stretch out, adding to the public cost of running the court.”

In addition the post includes:

To no one’s surprise, Chief Justice Beverley McLachlin of the Canadian Supreme Court was voicing her concerns recently over the numbers of self-represented litigants throughout the court system. (see, Canada.com, “Chief Justice warns of ‘epidemic’ of self-representation in courts,” Aug. 13, 2006; cbcNews, “Self-representation creating chaos in courts:chief justice,” Aug. 12, 2006)

6) Giacalone: It overlooks the fact that every single day thousands of low-income Americans are able to receive a fair hearing of their disputes in Family (and other people-oriented) Courts — and that self-help centers and pro se programs for judges and court staff are spreading and becoming more and more effective.

Me: As has been found by the great majority of studies only about 20% of the civil legal needs of low-income persons are currently being met. See American Bar Association, Task Force on Access to Civil Justice, 14 (Unanimously Approved by ABA House of Delegates August 7, 2006). Of course there are thousands who are able to get counsel or self-represent, but there are millions who are not. As mentioned before self-representation itself is also most helpful to the most self-empowered and resourced low-income persons. Those who are truly on the brink will face the greatest difficulty finding the time and resources to educate themselves about and in court. For example, it would be hard to argue that fair results are being reached in NYC Housing Court.

See report on NYC housing court evictions: Results From Three Surveys of Tenants Facing Eviction in New York City Housing Court

In conclusion, I find Giacalone’s opposition to civil Gideon to be rather strange. If one supports empowering persons without attorneys to be able to better self-represent themselves, it would seem to follow they would also support getting competent lawyers to lend a hand as well. These two goals are not mutually exclusive.

Why an Ultra-Conservative Texas Grandmother Hates the GOP

Wed, 16 May 2007 12:21:52 -0700

To learn about the serious threat posed by mandatory arbitration agreements read an article I co-authored with Jordan Fogal on AlterNet:

Why an Ultra-Conservative Texas Grandmother Hates the GOP

By Cyrus Dugger and Jordan Fogal, Drum Major Institute.

What could make Jordan Fogal, a 61-year-old ultra-conservative Republican grandmother from Texas, refuse to vote for a single Republican in the last election? Two innocent sounding words: mandatory arbitration. (keep reading)

To hear more from Jordan Fogal you can listen to her talk about arbitration on her two podcasts with the Drum Major Institute.

Podcast Series: Arbitrating Away The American Dream (Vol 1)

Podcast Series: Arbitrating Away The American Dream (Vol. 2) – “The Stupid People”

Apology Accepted

Mon, 23 Apr 2007 07:50:34 -0700

Tort Deform

Awhile back, David Nieporent wrote a response to a post by Eric Turkewitz on his New York Personal Injury Law Blog that was cross-posted here on Tort Deform. They were engaged in a debate over the merits of “apology laws” that allow doctors to show regret at the outcome of a procedure, but without it being used against them in a subsequent medical malpractice claim.

In his original post Eric says:

I've always believed, based on the manner in which calls come in to my office, that poor communication (bad bedside manner) is the primary reason patients call attorneys. They are angry, or confused, or both. (link)

In his response post, Nieporent says:

[T]he practical implication of [Eric’s assertion] for doctors is clear: doctors should apologize. But he doesn't seem to reflect on the implication of that for lawyers. If med-mal cases are brought based on anger over bad bedside manner rather than wrongdoing, then our med-mal system will punish bad bedside manner rather than wrongdoing. (link)

Nieporent is way out in left field on this one. He is missing or attempting to distort the distinction between the existence of an arguable medical malpractice claim, and the reasons this claim is actually brought (or ever considered) by the victim or their family. Eric’s point is that bad communication is often the triggering point to begin an inquiry into litigation over an unsuccessful medical procedure. This triggering point would likely be avoided if there was better communication. However, whether or not the litigation “trigger” is pulled, is an entirely different question than whether or not malpractice has actually occurred or not.

Better bedside manner would produce one result with two ultimate effects. The result is less people even deciding to pull the “litigation trigger” and seek out the counsel of an attorney at all. The first ultimate effect is less people who have been the victim of clear medical malpractice will sue because less will even contact attorneys. The second ultimate effect is that less people who may have symptoms that appear related to malpractice, but that cannot be proven as such under a state’s given (often tort "reform" distorted) laws (or who simply have an illegitimate claim) will ever even attempt to sue.

Tort “reformers” should be able to get behind both of these ultimate outcomes since they “don't generally endorse litigation as a solution to problems.” (although many tort "reformers" change their tune when they or somebody in their family is hurt)

However, more fundamentally, Nieporent's overall narrative about litigation as the first recourse of most Americans is incorrect.

Perhaps the greatest misconception the tort “reform” movement has imbued in the American people is the idea that people are always suing people left and right whenever they are injured.

This characterization is entirely untrue. As outlined by Professors William Haltom and Michael McCann in their award winning book, Distorting the Law, most grievances in America do not end with cases even being filed.

Their “tort and civil disputing pyramid” based on data collected in the late 1970’s, demonstrates this important point.

For every 1,000 tort grievances (defined as the belief that another has wronged them) there are:

857 tort claims (defined as instances in which the party states their grievance to the other party)

201 tort disputes (defined as instances in which the party against which the claim is made disputes the claim)

116 disputes taken to lawyers (defined as one or more parties seeking counsel)

38 tort cases filed (defined as some filing in court regarding the dispute)

Thus of all these instances in which a party is aggrieved, only 3.8% ever result in the filing of lawsuits.

Moreover, of these filed, many will eventually be dropped or go immediately to settlement.

Then again, this is an older study. However, more recent studies come to similar conclusions:

“Only 10 percent of injured Americans ever file a claim for compensation, which includes informal demands and insurance claims. Only two percent file lawsuits.” – Center for Justice & Democracy

(citing David A. Hyman and Charles Silver, “Medical Malpractice Litigation and Tort Reform: It's the Incentives, Stupid,”59 Vand. L. Rev. 1085, 1089 (May 2006) (citing Thomas F. Burke, Lawyers, Lawsuits, and Legal Rights: The Battle over Litigation in American Society 3 (2002));Rand Institute for Civil Justice, Compensation for Accidental Injuries in the United States (1991).)

Then again, the specific substantive discussion of these two posts was the issue of medical malpractice, so let's look at these claims.

While between 44,000 and 98,000 die, and approximately 300,000 are injured each year from medical errors in hospitals, “eight times as many are injured as ever file a claim,” and “16 times as many are injured as ever receive compensation.”

Of course, some tort “reformers” might argue that so few bring and ultimately win claims because their claims are “frivolous,” in reality, that claim does not stand up to real scrutiny.

Let’s take the recent study by Harvard’s School of Health. It’s press release for the study titled “Study Casts Doubt on Claims That the Medical Malpractice System is Plagued By Frivolous Lawsuits” states that “[m]ost claims (72%) that did not involve error did not receive compensation.” That means that, according to the study, about a quarter of the time claimants incorrectly receive compensation. These numbers indicate that there are errors, but, as the Harvard press release states:

“Overall, the malpractice system appears to be getting it right about three quarters of the time,”…. That’s far from a perfect record, but it’s not bad, especially considering that questions of error and negligence can be complex.” (link)

Moreover, despite the spin of tort "reformers,” when the right outcome is not reached in medical malpractice cases, it is more likely that an injured person will go uncompensated than that an uninjured person will illegitimately get compensated. As stated by Harvard:

The 27% of cases with outcomes that didn’t match their merit included claims that went unpaid even though the injury was caused by an error (16%); claims that were paid but did not involve error (10%); and claims that were paid but did not appear to involve a treatment-related injury (0.4%). (link)

And yet, tort “reformers” dedicate millions of dollars to a public opinion campaign to convince us that people are filing lawsuits when they get a paper cut.

The reality is that the facts show that most Americans are rather forgiving of medical errors and decide not to pursue litigation. Or perhaps, instead, it is simply the case that most Americans aren’t aware that they’ve been wronged

Either way, if I were a tort “reformer,” I would come to the conclusion that it might actually be really smart to just stop discussing the issue of malpractice litigation at all.

Every time they make somebody think about medical malpractice as an issue, they also make that person more aware that they can sue when a doctor injures them.

Luckily, I’m not a tort “reformer.”

Tort "Reform" Movement's Take on Racism

Tue, 10 Apr 2007 10:38:05 -0700

Cross-posted from Tort Deform

Just got back from a short vacation. I’m refreshed and ready to launch back into the world that is Tort Deform. To warmly greet me in the blogosphere is a revealing (and ill-timed) post by David Nieporent of Overlawyered.

His post titled “Sticks and stones may break my bones, but names can make me rich” ridicules an African-American couple who were refused service and subjected to racial slurs for deciding to sue the store from which they attempted to make their purchase. The post, and the tone that it takes, is ironic in that it follows the recent fallout from Don Imus’s own racially disparaging remarks.

However, it is honestly nothing new. The framing of “over-victimization” used by the tort “reform” movement to attempt to disparage the civil justice system is part and parcel of a general conservative messaging campaign that disparages the entire concept of victimization (replacing it with themes of personal responsibility) in many other areas such as civil rights.

I’ll follow up with a more detailed post after I get caught up after my break, but I just wanted to flag this issue buy way of a quote from Nieporent’s post.

They then allege that, while waiting for that helpful clerk to sell them a watch, they heard McCrary curse at them, using a racial slur, and then stalk off. The helpful clerk immediately apologized, as did a sales manager. But nonetheless, this incident was so traumatic for the couple -- including the husband, who was a police officer -- that they not only felt too distressed to finish buying the watch, but they felt the need to return the items they had already purchased (link)

I can’t think of a more condescending reaction (at least that can be publicly published on Overlawyered) to an incident of outright racial discrimination.

Class Actions, Tort “Reform” & Pets v. People

Fri, 23 Mar 2007 08:12:50 -0700

Cross-posted from Tort Deform

The blogosphere is currently abuzz with news of the Menufoods pet food recall. For as yet undisclosed reasons, a recent batch of pet food from Menufoods was killing pets by way of liver failure. Stephanie Mencimer, author of the most recent book about the tort “reform” movement, made an interesting point about the forthcoming litigation:

On the other hand, much as I feel for the pet owners, I have to confess secretly hoping that this line of litigation doesn't go anywhere. The civil justice system has enough fodder for "reformers" to ridicule as it is. Can you imagine these cases going to court? The causation arguments alone will be enough to keep late night talk shows in fits for months.

Like obesity in Vioxx plaintiffs, kidney failure is pretty much epidemic in old cats, of which this country has many (so many, in fact, that the University of Pennsylvania vet school has a thriving feline kidney transplant program). But also, if you figure that defense lawyers will try to show that something other than the pet food caused the kidney failure, then you're really headed into Comedy Central territory. (link)

At first I agreed in theory, but then didn’t care because ultimately our ability to access the courts when we are wronged is not about sound bites, it’s about righting wrongs. But after some more thought and a conversation with my office mate I realized that Mencimer was wrong, at least as towards the public relations aspects of this issue.

The reason is that people in some ways relate to pets generally, more than they do to other people generally. If a random person or a group of persons are poisoned or injured by a corporation, we feel bad, but we are able to dissociate ourselves from that suffering.

Ironically, people are less prone to do dissociate in the same way regarding corporate negligence that affects the heath of pets. Not only do 63% of American households have pets and therefore relate to the trauma of pet food killing their pet, but people actually own their pets as their property in a way that we don’t own other people.

Perhaps the lack of ownership over others as our property makes is care less, as is logical, I guess.
It’s ironic because most Americans are currently part of one class action or another about important rights or consumers issues right at this very moment (as unnamed plaintiffs), and yet it’s litigation over their pet’s food that sticks as a call to arms.

The point is that despite Mencimer’s great observation, I have not seen this level of blogosphere coverage, outrage, or interest over this type of non-civil rights/non-civil liberties lawsuit very often.

Moreover, even the failure of the lawsuit for the causation reasons that Mencimer mentions could serve as a lesson to the public about the difficulties faced by those attempting to access justice in our nation's civil justice system.

Those advocating for access to justice and the viability of our class action system of litigation should take note.

Reagan’s Famous Pop Tort

Mon, 19 Mar 2007 11:15:25 -0700

Cross-posted from Tort Deform

For those of you who have tuned in to our “Tort ‘Reform’ Hypocrites” series, you already have insight into the quickly shifting stances of at least some important public supporters of tort “reform.”

Some of you may also have read my op-ed on the topic as well.

It’s a pretty large phenomenon: public supporters of tort “reform” who when injured waste no time turning to the courts to utilize the very legal avenues they publicly criticize and attempt to foreclose through their public advocacy and lobbying.

But there’s another kind of slippery proponent of tort “reform.” It’s the kind that tells a story about a lawsuit, but intentionally omits portion of the story in order to satirize and marginalize the merits of the suit.

I’ve written a series of posts on these “pop” tort tales summarized by Professors William Haltom and Michael McCann. In their book, Distorting the Law, they outline perhaps the most influential pop tort told by one of the most influential public figures in American history: President Reagan.

You may or may not have heard the story of the CAT Scan Psychic. Here’s an overview of the “pop tort.”

A woman who goes to get a CAT scan tells the radiologist that she had previously had a severe allergic reactions and was told to avoid iodine based dyes. The dye of the CAT Scan is iodine based, and as such the woman was concerned she would have a severe reaction if it was administered. The radiologist dismissed the warning and persisted in attempting to administer the dye. The radiologist then convinced the woman to allow her to apply a small amount of the dye as a test. The patient relented and quickly went into a severe anaphylactic shock causing severe pain, welts and hives for weeks, and an inability to deeply concentrate without the onset of strong acute headaches.

This woman was a professional psychic who national and local law enforcement officials confirmed had helped solve crimes in the past. She filed a medical malpractice claim for her pain and suffering as well as her loss of income. Although she had been credited with assisting law enforcement as a psychic, the judge threw out her claim for loss of income resulting from her inability to continue to work as a psychic because of her headaches. The only claim that advanced was for her pain and suffering related to the botched procedure.

In less than an hour the jury awarded her $600,000 (ultimately becoming $986,000 with accrued interest). The judge ruled that the award was “grossly excessive” and ordered a new trial.

The second trial was ultimately dismissed after the judge ruled that the plaintiff’s medical expert lacked qualifications. This ruling was affirmed by a divided Pennsylvania Superior Court.

This woman ended up not getting a cent in compensation, let alone payment for her subsequent related medical care.

The news media only followed the story to the initial award in the first trial and then stopped covering the story. Indeed, the story has been and still is used by tort “reformers” to portray our civil justice system as a joke to be ridiculed. There’s a lot to say about this portrayal of what clearly reads as a reasonable basis for a malpractice lawsuit, but let’s focus on what President Reagan (a very strong supporter of tort “reform”) actually said about the case:

Last year a jury awarded a woman a million dollars in damages. She claimed that a CAT scan had destroyed her psychic powers. (Laughter.) Well, recently a new trial was ordered in that case, but the excesses of the courts have taken their toll. As a result, in some parts of the country, women haven’t been able to find doctors to deliver their babies, and other medical services have become scarce and expensive. – Distorting The Law, 3

This story is artfully told in a manner that is not untrue, but omits key points of the story, which would otherwise shed a different light on the matter.

Yes, the woman was awarded close to a million dollars, BUT the actual award was 600,000 with the rest being accrued interest.

Yes, the woman claimed the CAT scan destroyed her psychic powers, BUT that part of her claim was thrown out early on and had nothing to do with her $600,000/986,000 award (of course also no mention of her previous assistance to the police).

Yes, the case was dismissed, BUT this example does not in anyway actually support the assertion that this case was an “excess” of the courts, or for that matter that “the excesses of the courts have taken their toll.”

Yes, surely, in some parts of the country women couldn’t find doctors to deliver babies and in some places the cost of medical services went up, BUT this problem stemed from the natural variances of the medical malpractice insurance market, normal inflation, and the occasional scarcity of doctors in some rural or unattractive locations. Moreover, Reagan’s point is not technically untrue from a more general point of view because it is of course IMPOSSIBLE to claim that a woman can always find a doctor to deliver her baby in EVERY PART OF THE COUNTRY AT ALL TIMES.

The case has also been cited by the top advocates of tort “reform” in their flagship pieces of literature including: Peter Huber in Galileo’s Revenge, Walter Olson in The Litigation Explosion, and Charles Sykes’s A Nation of Victims in ways that characterized the CAT scan case as “typical” of law related epidemics or as “an example of routine failure by the civil courts.”

The tort “reform” pop tort strategy is to tell a selective truth about these types of stories and our civil justice system, and to forget or marginalize the part of the story they don’t want the public to know.

*The facts of this CAT scan story are paraphrased from the text of Professors William Haltom’s and Michael McCann’s Distorting the Law (p.2)

Katrina Litigation Reality Check

Fri, 16 Mar 2007 13:10:01 -0700

Cross-posted from Tort Deform

I recently read Walter Olson’s (Senior Fellow at the Manhattan Institute) op-ed in Times of London. There’s a lot in there that I’d like to spend time discussing, but I’ll just focus on this one misleading representation.

In his overview of the state of civil litigation in America, Olson describes the Katrina homeowners insurance lawsuits in the following manner:

In nearby Mississippi, meanwhile, insurers besieged by the state’s politico-legal tag teams are offering billions to settle Katrina flood damage claims, notwithstanding clear flood exclusions in their policies. (link)

Tort “reformers,” repeatedly, misleadingly, and unfairly keep using and spreading this talking point. However, in Mississippi, the argument that the water damage was not actually a flood as defined in the insurance contracts, but a "surge" that is not specifically excluded was rejected (perhaps unfairly) by the presiding federal judge many months ago. The idea is to make the Katrina lawsuits sound silly, frivolous, and unfair to “hard-hit” insurance companies. Why would you file a claim with your insurance company for flood damage when you don’t have flood insurance? The narrative goes that people are trying to game the system and get rich quick through ”jackpot justice.”

This characterization of these homeowners insurance lawsuits is incredibly disingenuous.

1) The currently standing claims in Mississippi are not about flood damage, but wind damage that was in some cases also complimented by flood damage.

2) There is now a well documented pattern and practice of bad faith denials of valid wind related homeowners insurance claims.

3) Tort “reformers” like Walter Olson are in reality attempting to defend an arcane construction of these homeowners' insurance policies that argues that even if the home is damaged by wind, if the already damaged/destroyed home is later further damaged by flooding, even hours or perhaps days later, the insurance company no longer has to pay…anything. Judge Senter, the judge responsible for adjudicating these claims in Mississippi, had this to say about the validity of this manner of interpretation of these contracts:

When the policy is read as a whole, I find that this exclusionary provision is ambiguous-the policy as a whole providing explicitly for windstorm coverage in one section and purportedly excluding the same coverage on the grounds that a windstorm, a "weather condition," and an excluded peril, a flood, occurred at approximately the same time - If this second provision were read to exclude wind damage that occurs at or near the time that any excluded water damage occurs, the result would be contrary to well-established Mississippi law.

The position currently defended by tort “reformers” has been found to be contrary to well-established Mississippi law, and was clearly written this way by insurance companies with the knowledge that it would be (and the hope that it might come before a conservative judge who would still uphold it – notwithstanding ”well-established Mississippi law”). Regardless, Nationwide Insurance (and many other home insurers) attempted to game homeowners through deceptively and ambiguously writing their insurance contracts to basically immunize themselves from having to pay valid wind damages.

That sounds a lot different than the oversimplified:

In nearby Mississippi, meanwhile, insurers besieged by the state’s politico-legal tag teams are offering billions to settle Katrina flood damage claims, notwithstanding clear flood exclusions in their policies.

To underscore this post and this point, here’s the final installment of the CNN series on the abuses of the homeowners insurance companies.

CNN’s The Town That Fought Back Vol. 6

Ground Zero in Perspective: The Problem With Heroes

Tue, 13 Feb 2007 10:26:10 -0800

Cross-posted from Tort Deform

Today, the NY Times has a story reporting that the recently deceased symbolic representative for sick Ground Zero Workers and first responders did not "rush" to Ground Zero in the wake of the 9/11 attacks as reported by some news sources. Instead, he served near Ground Zero beginning a little over three months after the attacks. When asked why they did not correct what became the public story the widow said she was too busy grieving as her husband came near to and eventually succumbed to death. The son, who went to the State of the Union with Senator Clinton as her guest to help bring attention to the issue, said that he did not know the exact details of his father's work at Ground Zero and did not know the representation in the press to be different than the reality.

The discrepancy between the symbolic emblematic hero story, and the reality of the man, gives fodder to what has been a surprisingly and jarringly un-empathetic opposition by those opposed to medical care and financial support for Ground Zero workers.

Sadly, heroes are rarely "perfect" human beings under the microscope. For all we know, Ceasar Borja could have been a horrible person, a bad husband, or even a bad father.

However, what Borja definitely was, was a person exposed to contaminants at and near Ground Zero. While he came late to the cleanup effort, he began working there three months into a cleanup that lasted ten months, and ultimately spent at least 17 days working in the area around Ground Zero on security and traffic detail.

Pointedly, it appears Ceasar Borja himself never made any public statements claiming anything other than the truth. It appears he was too sick to deal with the media. His son was the primary teller of his story, but was a storyteller without knowledge of the exact contours of the story. It's unfortunate, but understandable how that might happen as one's father is dying.

So the change in the story is that instead of rushing to the pile in the immediate aftermath of 9/11, Borja, a cop who served New York for 20 years, was exposed to contaminants doing his job as a police officer.

Although it makes for a less completely heart wrenching sound bite, the fact that a police office like Ceasar Borja got sick with a Ground Zero related illness actually makes a stronger case of Ground Zero related illness for those who actually worked on the pile, worked closer to the day of the initial attacks, and/or logged more hours at the site. If even Ceasar Borja can get sick from his work at Ground Zero, others who worked more intensively are potentially at an even higher risk than many had thought to be the case before.

Without having to even look at the tort "reform" movement commentators' attack on the right for all Ground Zero workers to access the courts, I want to make prediction about what they will say.

Actually, before I even make that prediction, I want to make clear where the tort "reform" movement comes out on the issue for all sick Ground Zero workers, including those who did race to Ground Zero immediately after the attacks.

Jim Copland, Director of the Manhattan Institute's Center for Legal Policy, wrote a New York Post op-ed titled "Simply Wrong" criticizing the decision by Judge Hellerstein to not bar out of hand all 8,000 claims of Ground Zero workers and responders against NYC and its contractors. The suit was filed against these entities for not providing and implementing the use of proper safety equipment at Ground Zero. Copland would move to have all claims of these workers and first responders simply barred out of hand before discovery was allowed to investigate evidence of the extent, nature, and duration of the city's failings.

Here's what the right wing (the same right wing that calls those who don't "support the troops" unpatriotic) about those who worked in and around Ground Zero. (again, without having even read their blog yet).

Ceasar Borja, despite his twenty years of NYPD service, despite being exposed to Ground Zero contaminants, despite having a respiratory disease like other Ground Zero workers are coming down with, and despite (like others) coming down with his ailment in the years and months after exposure at Ground Zero, did not deserve free medical treatment, would not deserve workers' compensation (were he alive), and his family does not deserve increased pension benefits after his Ground Zero related death. In fact, we should do everything within our power to prevent him and those like him from being compensated in life and death, and for that matter from having provided medical treatment for his injuries.

However, Ceasar, had he lived, and Ceasar's family in his death, does not deserve these things because the right wing tort "reformers" think it is a good idea, he and/or they deserve them because they are entitled to them by law.

They will also say that because he smoked until the mid 90's (ten years ago), it was his smoking and not his exposure at Ground Zero that caused his illness. Today, although much less so in the past, many people know the risks of smoking and know (despite previous false representations by Big Tobacco) that it is addictive.

However, those who are "informed" smokers and started recently make a risk assessment (although many current smokers are still simply addicted from having started before there was as much public information on the health effects) based on the risks associated with smoking. Exposure at Ground Zero puts those who smoked at a higher risk of becoming ill with Ground Zeros illnesses, but those who smoked accepted the risk of smoking, not an interaction between smoking and exposure to the dust of the twin towers on the job. Ceasar Borja may have been more vulnerable to WTC contamination as a former smoker, but he was not supposed to have been exposed to contamination in the first place.

The point that we have driven home is that the challenges faced by Ground Zero workers and responders are emblematic of all those attempting to seek justice in the courts. If even these heroes face as much opposition and attack when asking for medical treatment and in the case of workers a maximum of 400 in workers compensation a week, imagine what you or I might face if injured in a less public manner and while having no access to the national media spotlight.

Predictably, as the claim to classic "hero-hood" of rushing to Ground Zero fades, so does protection from attack for all those less "heroic" persons with legitimate claims who may not have risen to the level of national heroes, but who responded or worked there nonetheless.

In fact, to the extent that the tort "reform" movement pounces on this one case of the 40,000 people who worked at or near Ground Zero (or the landfill used for Ground Zero debris), they further demonstrate what has been my underlying my point: the tort "reform" movement is out to reduce and question the right of all Americans to access the courts in whatever context, unless and only unless, their injuries are too politically dangerous to critique.

Then again, as Copland's op-ed demonstrates, at times they are willing to slam the courthouse door in the face of people like Ceasar Borja the hero, even as he was previously described in the papers before the NY Times correction.

Ceasar Borja, may not have been "Ceasar Borja," but countless others at Ground Zero were. Indeed, the larger point about Ground Zero is that all Americans, whether "heroes" "medium-heroes" "quasi-heroes," or even just people doing their jobs deserve to be supported and compensated when the negligence or misconduct of others (in this case primarily the federal and NYC governments and their contractors) cause them bodily harm or death.

In the wake of this story, tort "reformers" will attempt to draw attention from the well documented negligence of misconduct of government agencies and businesses in failing to protect responders, workers, and residents from exposure in Manhattan, and place the focus on one of 40,000 workers and responders, and an unknown number of residents and office workers, because in this one case the amount and type of service at Ground Zero was not as well documented as it should have been.

What this NY Times story ultimately stands for is the fact that sometimes we make people who put themselves in harm's way bigger than they actually are because as a nation we need heroes (for another example here's coverage of the Former Mayor Rudolph Giuliani's over glorified yet flawed 9/11 response)

In response to the story Senator Clinton's office observed "[S]acrifices were made by so many whether it was in the hours, days, weeks, or months after the attacks...they all deserve our help." Agreed.

Let's not forget our heroes, our "less than hero" Ground Zero workers and responders, or for that matter, our everyday Americans when fight for access to the courts in America today.

The challenges faced by Ground Zero workers affect us all because many of us were Ground Zero workers, many of us will face avoidable health risks like those faced by Ground Zero workers in the future, and many of the residents of Manhattan and Brooklyn are contaminated right now and will become sick within the next 20-30 years.

It's just that we just don't know it yet.

Juries as Democratic Participation

Thu, 08 Feb 2007 08:20:58 -0800

Cross-posted from Tort Deform

Juries, especially civil juries, instill some of the habits of the judicial mind into every citizen, and just those habits are the very best way of preparing people to be free.... They make all men feel that they have duties toward society and that they take a share in its government. By making men pay more attention to things other than their own affairs, they combat that individual selfishness which is like rust in society.... [The jury] should be regarded as a free school which is always open and in which each juror learns his rights, . . and is given practical lessons in the law. .. I think that the main reason for the ... political good sense of the Americans is their long experience with juries in civil cases." - Alexis de Tocqueville

Tort “reformers” would have you believe that America is plagued by runaway juries that result in “jackpot” justice based on the jurors’ random and emotional whims about a particular case.

This framing of juries is inaccurate. Juries, although imperfect, do a reasonably good job of evaluating civil claims.

blockquote>Juries, especially civil juries, instill some of the habits of the judicial mind into every citizen, and just those habits are the very best way of preparing people to be free.... They make all men feel that they have duties toward society and that they take a share in its government. By making men pay more attention to things other than their own affairs, they combat that individual selfishness which is like rust in society.... [The jury] should be regarded as a free school which is always open and in which each juror learns his rights, . . and is given practical lessons in the law. .. I think that the main reason for the ... political good sense of the Americans is their long experience with juries in civil cases." - Alexis de Tocqueville

Tort “reformers” would have you believe that America is plagued by runaway juries that result in “jackpot” justice based on the jurors’ random and emotional whims about a particular case.

This framing of juries is inaccurate. Juries, although imperfect, do a reasonably good job of evaluating civil claims.

A March 2000 survey of federal judges by the Dallas Morning News and SMU School of Law found overwhelming support of juries. Over 81 percent of respondents thought that most jurors come into a civil case favoring neither side, with nearly 77 percent believing that juries did very well in reaching a just and fair verdict. In addition, 59 percent said they would prefer the dispute to be decided by a jury if they were a litigant in a civil case, with only 21 percent preferring a judge as the decisionmaker - Center for Justice & Democracy

When juries do fall short and grant excessive or insufficient civil verdicts, the judge steps in to invalidate the award.

In a 1987 study, the Rand Corporation's Institute for Civil Justice reported:

“Most criticism of large jury awards has ignored the fact that the current liability system already has a mechanism for reducing excess awards.” Post Trial Adjustments to Jury Awards, Rand Corporation Institute for Civil Justice (1987).

If anything, jury decisions more often than not favor businesses:

Professor Valerie P. Hans, who has studied juries extensively for years, found that jurors “expressed concern about the effect of an award on the business defendant” and that “jurors are “often suspicious and ambivalent toward people who bring lawsuits against business corporations.” - Center for Justice & Democracy

Indeed, as observed in “Distorting the Law,” “because civil juries are routinely asked to decide the 10-20% of the civil cases that are the thorniest – the easier” cases and disputes …mostly disappear long before trial – those uninitiated into the workings of the court may underestimate jurors.”

But let’s put this traditional debate aside and say forgetting all of this information supporting the use of juries, even if civil juries are not completely fair, perhaps the answer is “… that’s democracy.”

Aren’t juries part of our democratic process? While imperfect, aren’t they an element of democratic participation, and indeed part of larger form of democratic governance? Sure we may not always like the decision of a small group of jurors in a given civil trial, but we also don’t always like the outcome of our larger democratic processes in our local, state, and federal elections. Yet, we respect the outcome of the democratic process, and the larger principles behind the process.

Indeed, the founders of our nation greatly valued the jury as a form of participatory democracy and a check on the elites they often feared would consolidate control.

“The Framers of the Constitution felt that juries-because they were composed of ordinary citizens and because they owed no financial allegiance to the government-were indispensable to thwarting the excesses of powerful and overzealous government officials. The jury trial was the only right explicitly included in each of the state constitutions penned between 1776 and 1789…Anti-federalists complained that the proposed constitution did not go far enough in protecting juries, and federalists eventually responded by enacting three constitutional amendments guaranteeing grand, petit, and civil juries.” (link)

Personally, I have been disappointed in the outcome of this nation’s federal democratic process for some time now. However, I still believe that the outcome of these processes (aside from the 2000 presidential election and a few others) are, for the most part, legitimate.

So if tort “reformers” believe in the larger federal and state democratic processes, why are they so intent on curtailing its close cousin, the jury, and why are they attempting to limit its involvement in the determination of damages in civil trials?

It’s an interesting question. In many respects, juries are presented with the facts in a less biased and distorted manner than the American electorate in our electoral process. When we select candidates for office we base our decisions on an often imbalanced public relations war between parties with different levels of access to the media, and therefore to us. Candidates often misrepresent facts, and there is infrequently an opportunity to immediately cross-examine or directly challenge a campaigning politician’s statements. With the small exception of disjointed TV ads and one or two short sound bite debates.

The electorate may vote for a candidate because of racist, sexist, homophobic, or ideological beliefs and there is no way to remove these members of the electorate from the process. Members of the electorate are free to publicly state that their votes are influenced by a person race, religion, or gender and their right to participate democratically is in no way infringed.

Indeed, there is little filter of the information and misinformation to which the American electorate is bound. Ultimately, the decision is reached by a simple majority, and unanimity or consensus is not required. Indeed, candidates are sometimes chosen without a simple majority.

In contrast, jury selection is geared towards identifying and eliminating the bias that permeates our society in so many different fashions. Jurors that reveal bias through questioning can and are removed. Of course, this process is not perfect, and can also allow parties to remove members of some groups under the pre-text of neutral rationales. However, it nevertheless allows both sides to affect who decides the outcome of the case.

Even after the jury is selected, the rules of evidence protect jurors from being unduly influenced by information that is not relevant to the facts and issues before them.

Indeed, the entire judicial process is heavily controlled by rules to reduce bias and increase fairness.

While like electoral democracy, in criminal and civil litigation different parties are advantaged or disadvantaged because of differing financial/legal resources, unlike electoral democracy, the jury is subjected to a high level of control and selectivity.

As a result, if we believe in the legitimacy of our current system of democratic governance, we’ve got to believe, at least somewhat, in the legitimacy of the jury.

Unlike our presidential elections, there’s even the safeguard of an at least somewhat neutral judge to determine when and if the civil juries decision should be reduced.

When we frame the jury as a sub-part of our larger democratic nation, it is more difficult to object that it should simply be eliminated.

If roughly demographically representative juries that are combed for bias and presented with carefully screened evidence are not legitimate, how can we be satisfied with a larger electoral process that does not have these same safeguards.

Of course, civil juries and elections are processes geared towards different ends, and so the comparison is ultimately imperfect.

The former, attempts to ascertain facts in the furtherance of the application of the nation’s laws, and the latter selects our representatives. Our elections also involve the entire nation (well more like half of it really), but juries are ultimately demographic samples of the smaller political subdivisions of this larger democracy.

However, the underlying point is that juries involve taking a sample of the community and involving them in a form of participatory democracy in a way that seeks to reduce many of the arguably negative motivations people use in our larger electoral democratic system.

Of course, throughout history juries have sometimes been the source of much injustice. No person of color can ever fully disregard the historical experience of all white male juries swayed by virulent racism to convict innocent men in criminal trials.

And yet, can say any less or more of the racial fairness of our larger electoral democracy during this same period of time?

The President & Ground Zero Workers

Tue, 06 Feb 2007 12:30:05 -0800

Cross-posted from Tort Deform

After he was invited to attend the State of the Union Address by Senator Clinton, after his father died hours before the State of the Union, and after a direct public plea to the President in the wake of his father's death, only then did President Bush finally agreed to meet with Ceasar Borja Jr. last week. Similarly, as a result of Borjas's lobbying and publicity, the President also pledged $25 million in additional funding to support monitoring and treatment for Ground Zero workers and responders.

However, this amount of support will only keep the medical program going until the end of 2007, and is only ten percent of the 250 million amount Mt. Sinai, the main provide of these health services, says is needs each year to keep the program going.

And yet, while the President's attempt to ignore the suffering of Ground Zero workers that his administration is to a large degree responsible for (by way of the false statements about safety from contaminants from the EPA in the days after the 9/11 attacks) seems cold and inhumane, I'm beginning to wonder if he really just doesn't understand what is going on.

Here's an excerpt of an article describing the President's meeting with Borja Jr. that got me to this truly depressing possibility.

Then Bush came in and greeted us. He gave each of us a pin and a small coin with the presidential seal; I gave him a Mass card from my dad's funeral. I showed the President some family pictures of us with my dad. Then he got to a picture of my mom kissing my dad's forehead when he was intubated in the intensive care unit.

Bush paused on it, and his face went very serious. He handed it back to me, and I said, "You and the Congress have the power to pass legislation to provide for medical support for all the people who need it."

He said, "You're all right, Ceasar," and he shook my hand.

We thanked him for the $25million he put in the budget for Ground Zero responders. He said something like, "It's only a beginning. It's just a beginning."

I don't want to put words in Bush's mouth by trying to repeat exactly what I remember him saying. But I could tell from his demeanor that he was sincere, and everything he said to us was positive. Nothing was neutral, and best of all, nothing was negative.

My dad didn't get a full inspector's funeral because the NYPD doesn't recognize that he died in the line of duty, and the doctors won't draw a direct connection.

Bush asked us if that made any difference for our benefits - he was really concerned about that. I said we would be taken care of.

But I said, "Mr. President, my father did die in the line of duty because my father's pulmonary fibrosis was directly connected to his service at Ground Zero."

He agreed, saying, "Do these people have a hard time understanding what 'direct link' means? (link)"

I just want to repeat the point that the President of the United States, a President whose legacy revolves solely around the events of and after 9/11, does not know whether or not NYC police officers' benefits are affected by the current burdens of proof, or whether they are determined to have died "in the line of duty."

The quote again.

Bush asked us if that made any difference for our benefits - he was really concerned about that. I said we would be taken care of.

The more you read and think about this quote, the more disturbing it becomes. How can the President not already know the answer to these questions?

Indeed, Borja Jr., is not completely correct when he replies that it doesn't matter. The Bloomberg administration recently has come out drawing a distinction in pension benefits along just these lines of "line-of-duty" "non-line-of-duty" distinctions. Although the recently passed set of New York 9/11 worker and first responder bills were meant to ensure that police officers families were "taken care of," the Bloomberg administration has attempted to reduce the pensions of police officers who retire before they become sick with Ground Zero related illnesses.

Here's, my post on this issue, and an excerpt of the coverage by the Daily News.

"Legal snarl imperils 9/11 heroes' kin aid BY MICHAEL SAUL DAILY NEWS CITY HALL BUREAU CHIEF

A dispute between the city and state over the wording of a new law is threatening the pension benefits of loved ones of retirees who died of Ground Zero-related illnesses.

The city contends that the law, recently signed by Gov. Pataki, provides a 100% salary benefit for civil servants' survivors - but only 50% for families of heroes who died after retiring from city jobs post-9/11.

But Joanna Rose, a spokeswoman for Pataki, said the measure's intent was to provide recurring payments of 100% of the salary to the beneficiaries of those who died due to their service after the terror attacks."

After resisting evidence of a link between Ground Zero exposure and the resulting illnesses of first responders and workers, initially lobbying against the passage of the NY State bill giving first responders and workers more time to file workers compensation claims, having the city spend thousands if not millions fighting claims based on the city negligence in its response to 9/11 environmental fallout, and publicly stating that compensating this nation's 9/11 heroes is just too expensive, now Bloomberg is trying to ex-post facto re-write the law he originally opposed."

link

When Bush first came into the room, he told me, "You made the world listen."

My mom told the President, "That's right - he made you listen." (link)

Apparently, not closely enough to know much about the issue he was listening about.

Why the Challenges Faced by Ground Zero Workers Affect Us All: An Overview

Thu, 01 Feb 2007 15:14:09 -0800

Cross-posted from Tort Deform

For those who have been with us since the beginning of Tort Deform, you have heard us talk about how the challenges faced by the Ground Zero workers are in many ways emblematic of all those seeking justice in our nations’ courts and administrative bureaucracies. Hopefully, those readers who have recently joined have also been exposed to this narrative.

The issue of funding for sick Ground Zero Workers has reached a high point in publicity thanks to the efforts of Ceasar Borja Jr. Ceasar’s father was a NYC police officer for 20 years who died of a Ground Zero related illness hours before his son attended the State of the Union address in order to bring increased attention to the suffering and neglect of Ground Zero workers and responders.

In large part because of Borja’s efforts, Bush recently agreed to fund $25 million dollars in additional funding for the treatment of Ground Zero workers and first responders. However, this funding is only enough to extend treatment and screening until the end of the year.

In contrast, Mt Sinai Hospital, the institution currently charged with the primary screening and treatment of Ground Zero workers and first responders, has estimated that full treatment will cost $250 million dollars a year, each year, for the foreseeable future.

As a point of comparison, the amount Bush pledged to help our nation’s sick and dying heroes is just a few million more than the approximately $22 million the last 60 minutes of the war in Iraq has cost.

Talk about ironic priorities. We’re in Iraq because the President falsely tied Al-Qaeda and the 9/11 attacks to Saddam Hussein, and argued that taking down the regime would make American safer from terrorism. And yet, the ongoing effects on our nation’s sick heroes and victims of the 9/11 attacks that we mistakenly went to Iraq to respond to, gets just about the same amount of funding of as just an hour fruitlessly fighting in the midst of a civil war we have helped bring about in Iraq.

I will be writing and updating our previous materials linking Ground Zero workers’ challenges to a larger critique of the tort “reform” movement, but I wanted to take a moment to give an overview of all that has already been written. As I have re-read the material from my first post on this issue in September, to this most recent post of today, it is striking and depressing how little the narrative has really changed.

More discussion is to come on this issue in the following days, but for now, here’s the complete list in chronological order with links to all of the previous commentary on the link between the challenges faced by Ground Zero Workers and the challenges all Americans increasingly face in accessing justice in our nations courts and through our nation’s administrative agencies. I also included my Tom Paine op-ed at the beginning of the list as well.

The Next Victims Of 9/11, Tom Paine

Devalued Suffering & The Problematic Aspects Of the 9/11 Victim Compensation

Why the Challenges Faced by 9/11 Workers Affect Us All

9/11 & The Safety Is Too Expensive Business Model

More Details on the EPA & 9/11

Congress Rejects Aid For Sick 9/11 Responders: Puts Financial Safety Over Human Safety

9/11 Financial Safety Over Human Safety Narrative Continues

The EPA Continues to Endanger Our Safety

Federal and NYC Governments Make It as Hard As Possible for 9/11 Victims

The Political Fallout of the Financial Security Over Human Security Business Model

A Burden of Proof – For Heroes?

9/11 Ground Zero School Victims: More Evidence of the Profits Over Safety Business Model

9/11 Ground Zero Worker Lawsuit Moves Forward & The Profits Over Safety Business Model Continues

9/11 Ground Zero Worker Lawsuit Moves Forward & The Profits Over Safety Business Model Continues

Judge stands up for WTC heroes - mayor must, too

When Will NYC Stop Fighting Heroes' Claims & Benefits?

A Public Service Announcement For Ground Zero Workers

Ground Zero Workers Abandoned Once Again

The “Safety is Too Expensive Business Model:” Your NYC Homes, Offices & Schools

A Fair Deal for 9/11’s Injured?

Shutting the Doors on Our 9/11 Heroes

Public Service Announcement For 9/11 Workers and Volunteers Who Did Rescue, Recovery or Cleanup Work

Ground Zero ‘Clean-up’ Plan ‘Designed to Find Nothing’

City Fails Our Nation's Heroes Once Again

"9/11 Did Not End That Day"

Son Of Dead 9/11 Cop Asking To Meet With President

Cop's son urges Bush to boost 9/11 benefits

Son of Late Ground Zero Worker Makes Health-Care Plea

Son Of Dead 9/11 Cop Asking To Meet With President

Thu, 25 Jan 2007 10:33:16 -0800

Cross-posted from Tort Deform

I feel at this point there has been enough discussion on this blog for readers to understand my critique of the government’s response to the environmental effects of Ground Zero, as well as how the city and federal government have allowed and encouraged the unnecessary legal hurdles standing between our heroes and compensation and support.

Indeed, the EPA, at the apparent behest of our Chief Executive, was a major cause of the environmental impact because it falsely stated that Ground Zero was safe for human habitation. The newest story from the Associated Press:

Son Of Dead 9/11 Cop Asking To Meet With President

(AP) NEW YORK A day after his father's death, the grief-stricken son of a Sept. 11 police officer said Wednesday he wants to meet with President Bush to describe his father's sacrifice and the health needs of other sick ground zero workers.

Ceasar Borja Jr. attended the president's State of the Union address on Tuesday night just hours after learning his father had died from lung problems.

"I want a meeting with the president to make the case directly about how important these health programs are," Borja told The Associated Press.

"I want him to hear from me, how my father died a hero last night, and there are many heroes that will and are continuing to die because they're not given the proper medical attention or not given enough help from the federal government," said the 21-year-old college student, his voice breaking with emotion.
….
Asked specifically if Bush or his staff would meet with Borja, Conant said there was nothing on the president's schedule "right now." (link)

Right in step, and as he has done throughout the public debate of the issue, NYC Mayor Bloomberg played down the need for money to help treat Ground Zero Workers.

"But money was not an issue here, nor was the quality of health care," Bloomberg said. "It's sad that he just didn't live long enough to get a lung transplant, and it's not clear if he had, whether the lung transplant would have worked." (link)

I’m not familiar with the details of this specific man, but it is beyond argument that Bloomberg has almost without fail attempted to make receiving compensation and medical treatment for Ground Zero workers extremely difficult.

At the very least, the fact that it took 5 years from the 9/11 attacks for the city to get out diagnosis guidelines, and the fact that Bloomberg publicly and passionately argued against a health link between Ground Zero and the now impossible to ignore related illnesses, could not have helped Ceasar's father quickly diagnose his condition.

Not only did Bloomberg oppose the recently passed legislation that grants workers who got sick after the deadline to file for workers’ compensation (and many didn’t show any symptoms until after this point) moe time to file claims, but the city is currently being sued for its role in not protecting workers and first responders at the site. For a discussion of the Mayor’s efforts against heroes like Ceasr’s father (including attempting to wiggle out of paying civil servants like his father, who got sick from Ground Zero, their full pensions) read When Will NYC Stop Fighting Heroes' Claims & Benefits?

A Supreme Court Justice Begins the Tort "Reform" Movement: The Powell Manifesto

Wed, 10 Jan 2007 09:36:25 -0800

Cross-posted from Tort Deform: The Civil Justice Defense Blog

DATE: August 23, 1971

TO: Mr. Eugene B. Sydnor, Jr., Chairman, Education Committee, U.S. Chamber of Commerce

FROM: Lewis F. Powell, Jr.

This memorandum is submitted at your request as a basis for the discussion on August 24 with Mr. Booth (executive vice president) and others at the U.S. Chamber of Commerce. The purpose is to identify the problem, and suggest possible avenues of action for further consideration.

Dimensions of the Attack
No thoughtful person can question that the American economic system is under broad attack.1 This varies in scope, intensity, in the techniques employed, and in the level of visibility.
There always have been some who opposed the American system, and preferred socialism or some form of statism (communism or fascism). Also, there always have been critics of the system, whose criticism has been wholesome and constructive so long as the objective was to improve rather than to subvert or destroy.
But what now concerns us is quite new in the history of America. We are not dealing with sporadic or isolated attacks from a relatively few extremists or even from the minority socialist cadre. Rather, the assault on the enterprise system is broadly based and consistently pursued. It is gaining momentum and converts.

Sources of the Attack
The sources are varied and diffused. They include, not unexpectedly, the Communists, New Leftists and other revolutionaries who would destroy the entire system, both political and economic. These extremists of the left are far more numerous, better financed, and increasingly are more welcomed and encouraged by other elements of society, than ever before in our history. But they remain a small minority, and are not yet the principal cause for concern. (link)

Later on the memo continues….

Neglected Opportunity in the Courts
American business and the enterprise system have been affected as much by the courts as by the executive and legislative branches of government. Under our constitutional system, especially with an activist-minded Supreme Court, the judiciary may be the most important instrument for social, economic and political change.
Other organizations and groups, recognizing this, have been far more astute in exploiting judicial action than American business. Perhaps the most active exploiters of the judicial system have been groups ranging in political orientation from "liberal" to the far left.
The American Civil Liberties Union is one example. It initiates or intervenes in scores of cases each year, and it files briefs amicus curiae in the Supreme Court in a number of cases during each term of that court. Labor unions, civil rights groups and now the public interest law firms are extremely active in the judicial arena. Their success, often at business' expense, has not been inconsequential.
This is a vast area of opportunity for the Chamber, if it is willing to undertake the role of spokesman for American business and if, in turn, business is willing to provide the funds.
As with respect to scholars and speakers, the Chamber would need a highly competent staff of lawyers. In special situations it should be authorized to engage, to appear as counsel amicus in the Supreme Court, lawyers of national standing and reputation. The greatest care should be exercised in selecting the cases in which to participate, or the suits to institute. But the opportunity merits the necessary effort. (link)

The above memo is known as the Powell Memo, also known as the Powell Doctrine, written by Supreme Court Justice Lewis Powell two months before he was nominated to the Court by president Nixon in 1971.

Sometimes it is easy to feel like the rhetoric about a vast coordinated campaign by business interests to indoctrinate the public are overblown. Many who read this blog would agree that there is some coordination amongst business interests. The only real question is just how coordinated, how deliberate, and how large this coordinated campaign is.

While for most movements there is no particular place in time in which they definitively “begin,” this memo marks the moment in time, that is at least the beginning of the beginning of the modern tort “reform” movement. If you’ve ever wanted an excuse to be a conspiracy theorist, keep reading the memo that framed the viewpoint and initiated the strategy of the modern tort "reform" movement in 1971.

It should give every opponent to the evisceration of our civil justice system by the self-labeled tort “reform” movement a long moment of pause read just how coordinated and deep the agenda of the corporate lobby can go.

They have an enormous head start, they have more money, but hey, at least we have access to their first strategy memo!

Below, read a short introduction to the memo by ReclaimDemocracy.org. This memo is so long and so interesting that I have decided to make it into a series on Tort Deform... so there’s more to come.

Introduction
In 1971, Lewis F. Powell, then a corporate lawyer and member of the boards of 11 corporations, wrote a memo to his friend Eugene Sydnor, Jr., the Director of the U.S. Chamber of Commerce. The memorandum was dated August 23, 1971, two months prior to Powell's nomination by President Nixon to the U.S. Supreme Court.
The Powell Memo did not become available to the public until long after his confirmation to the Court. It was leaked to Jack Anderson, a liberal syndicated columnist, who stirred interest in the document when he cited it as reason to doubt Powell's legal objectivity. Anderson cautioned that Powell "might use his position on the Supreme Court to put his ideas into practice...in behalf of business interests."
Though Powell's memo was not the sole influence, the Chamber and corporate activists took his advice to heart and began building a powerful array of institutions designed to shift public attitudes and beliefs over the course of years and decades. The memo influenced or inspired the creation of the Heritage Foundation, the Manhattan Institute, the Cato Institute, Citizens for a Sound Economy, Accuracy in Academe, and other powerful organizations. Their long-term focus began paying off handsomely in the 1980s, in coordination with the Reagan Administration's "hands-off business" philosophy.
Most notable about these institutions was their focus on education, shifting values, and movement-building - a focus we share, though usually with contrasting goals. One of our great frustrations is that "progressive" foundations and funders have failed to learn from the success of these corporate institutions and decline to fund the Democracy Movement that we and a number of similarly-focused organizations are attempting to build. Instead, they overwhelmingly focus on damage control, band-aids and short-term results which provide little hope of the systemic change we so desperately need to reverse the trend of growing corporate dominance. (linK)

Washington Mutual Mandatory Arbitration Clause – WAMU Falls Short

Wed, 03 Jan 2007 10:26:58 -0800

Yesterday I opened an account with Washington Mutual. I’ve always sort of hated Bank of America. When I’ve had questions about my account or an online banking issue they have not been super helpful, and they charge me for my checking account. Moreover, for a long time (although no longer) Washington Mutual gave free access to their atms, and so I just grew to like them (as was likely the intended purpose).

Bank of America also employs a practice that seems geared towards increasing overdraft fees.

As succinctly explained on Wikipedia:

Excessive overdraft fees
In 1999, a class action lawsuit was filed against Bank of America for engaging in the practice of "Biggest Check First" check-clearing. Put simply, the bank clears checks and ATM/debit card transactions in order from biggest to smallest, with less regard to what time they come in during that business day. The lawsuit claimed that this is done on purpose: that the bank is manipulating the order of transactions to trigger more overdraft fees to collect.
Customers cannot avoid these fees by avoiding use of written checks; the bank employs the same practice for ATM and debit card transactions. Compounding the issue, the bank authorizes transactions in such a way that one debit card purchase - with funds that were available at the time of purchase - can trigger multiple overdraft fees.
When customers make debit card purchases through any modern bank, the charge is immediately deducted from their available balance. Technically, this is just a hold on the funds; the charge is not deducted from the actual, current or posted balance until the merchant settles the transaction with the bank. At Bank of America, if the merchant does not settle within three business days, the funds are once again made available for spending. Thus, the same money can be spent twice. When the merchant does settle the transaction, these funds are again deducted, even if this overdraws the account, which can result in an overdraft fee.
Here's an example: A customer has $100 in her account. On Tuesday, using her debit card, she buys coffee for $3, a small amount of gas for $15, and $25 worth of groceries. The $43 she spent is immediately deducted, and her available balance decreases to $57. If the merchants with whom the customer made the Tuesday purchases fail to settle the transactions before Friday, the $43 shows up on the account as available, bringing her account back to $100. On Saturday she withdraws the $100 from an ATM. As of Sunday night, her account shows exactly $0 remaining available. On Monday evening, all of the merchants with whom she has made purchases the prior week settle their transactions.
When the customer checks her statement Tuesday morning, she finds three overdraft charges, for the three purchases on the prior Tuesday. The customer is naturally confused, as she had not overdrawn her account for any of these transactions when she made them on that day. However, because all four transactions clear on Monday, and the bank clears biggest items first, Tuesday's purchases are all listed after the $100 ATM withdrawal that occurred four days later. The customer is charged three overdraft charges total, instead of one or none.

(Keep reading Wikipedia Entry)

So there’s not much positive about Bank of America, so I’m pretty happy to leave. However, as an intrepid civil justice fellow, even after hating Bank of America, when I was handed my Washington Mutual banking contract I had to check for the infamous and predictable mandatory arbitration clause.

And of course, there it was in section 4:

"Most disputes arising under this Agreement related to accounts or services hereunder are subject to mandatory binding arbitration. Rights to trial by a judge or a jury are waived hereby. Bank must be notified by Depositor of claims and proceedings to enforce any such claims must be brought, within the time requirements established in the Account Disclosures and regulations."

There are likely to be further details about the contours of this binding mandatory arbitration requirement in other documents that I have not yet read or received.

Now you may think that it is actually impossible to have any meaningful dispute with your bank. Banks’ businesses is keeping your money and your business with them, so it’s unlikely that you’d ever have had cause to exercise your “rights to trial by a judge or a jury” anyways.

But what if your bank lost your check?

This exact thing is what put me over the edge with Bank of America. One day I cashed a check for $1000. The check posted to my account and was then reversed a day or two later. I called Bank of America and said hey…. ahhh where did my check go? They replied, in a variety of ways, that they didn’t know (implying that it was “lost”), but were sure that it would turn up again. Aside from wasting my time and being unapologetic, they then credited my account a temporary reimbursement, then added my original check (after having posted and then un-posted it before) a week later and then left the double credited amount in my account for like three weeks until I called in about something else at which point they were like yeah we gave you too much money and reversed it again.

Now aside from the inconvenience and uncertainty caused by having $1000 added to and subtracted from my account five times, you've got to ask yourself what if they just lost my check. With a mandatory arbitration clause ( I don't have my Bank of America contract in front of me but let's assume that they have one) you’d be forced to pay money just to be able to take any legal action against the bank, and then have to pay your legal fees on top of that. Moreover, you’d have to do so in forum that is often biased towards the business parties that the provide arbitration companies that are charged with the resolution of these controversies with their arbitration business.

Now $1000 dollars is a lot of money, but imagine if it were $10,000 or $100,000, or was related to your mortgage. You’d have no legal recourse until submitting to mandatory arbitration.

As has been made clear in previous posts on Tort Deform, this one sentence:

"Rights to trial by a judge or a jury are waived hereby."

Can change your life for the worst…

What can you do about this issue? Well right off the bat whenever you talk with a company that provides you with a service, always ask them if they have a mandatory arbitration clause and express your interest in removing them. If enough people show enough concern about this issue, it can become a competitive business advantage to be “mandatory arbitration free” in the same way that being environmentally friendly can be good public relations for businesses that normally pollute.