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Comments

Stan

I agree. See Stankowski Report # 14.

Oh, and let me belatedly welcome you to the site.

And congratulations on learning to curse. It always helps.

U.A.

Bullshit is on my mind this week. Allow me to refer you to Jeff Jarvis's excellent post about the FCC, "In defense of bullshit."

Derek

I'm always a little confused why people would think defense attorneys would be prone to be in favor of tort reform. I worked for an insurance defense firm for 6 years and remained wildly opposed to most of the tort reform initiatives I heard about. As a practical matter, I had to keep quiet in public so as not to jeopardize our relationships with insurance companies, but I also was never put in the position where I would be expected to support tort reform. I suspect the percentage of insurance defense attorneys who support tort reform is comparable to the percentage of the general population. And a cynical observer might expect insurance defense attorneys to actually oppose tort reform since tort reform would most likely reduce the number of lawsuits filed (thereby reducing the attorney's caseload) and cap potential verdicts (thereby increasing the number of settlements and reducing attorney fees which would be higher if the cases went to trial).

mythago

What Derek said. If there are no lawsuits, there's no billing to fight them.

U.A.

Heh. I guess I'm still too naive (or unjaded) to think about it in those terms, so that never even occurred to me. However, it has occurred to me once or twice when writing a Motion to Dismiss in a really big case that would buy us a lot of legal fees if our motion failed. It's never given me incentive to do less than my best, though. Funny how a lot of defense tactics are designed to get one out of the suit ASAP, thus ending the case for that client and ending the possibility of getting paid. Interesting.

mythago

I don't know about "naive", U.A.--I'd say that you're thinking of your clients first. I assure you that I see a lot of motions that are frivolous, or so badly written, that "we did this to get our client out of the case" is not even plausible.

Piotr

Wow do I disagree. I am a California lawyer, having been practicing for just over 5 years. In my short career, I have been exposed to an astonishingly broad spectrum of areas of the law. I have done personal injury, corporate business disputes, landlord tenant disputes, contract disputes, labor disputes, legal malpractice, medical malpractice, franchise law, intellectual property law, and more. The one common thread I see across every area of the law, at both the State and Federal levels, is that there are far more unethical and sleazy attorneys than there are ethical ones. A surprising number of cases in my opinion border on frivolous.

The mechanisms of which you speak, purportedly designed to weed out frivilous litigation and bad faith litigation tactics, simply do not work. Judges are so afraid of foreclosing someone's rights that unless you are a bona fide, bumbling moron, you can draft a complaint that will survive demurrer and drag someone into litigation world for at least a year.

While I don't disagree that the medical community should help police itself and that public opinion needs to be swayed away from this era of lack of personal responsibility, I think your argument is misguided. The fact that there are many areas that need reform is not a reason to forego reforming our badly fractured legal system.

You talk about the need to inform the public of what we do. I know what we do. I am part of our profession. And I am disgusted by it. I see lawyers pull dirty legal tricks every single day. And every single day, the vast majority of those attorneys get rewarded in court. They lie upon vast mountains of money, lining their pockets and those of their clients, who are without a doubt the scum of the earth.

I, too, am a trial lawyer. When I hear of billboards of the kind of which you speak, I don't get angry at the person who made the billboard. I become ashamed and chagrined at what our own profession has done to itself.

You speak of the medical profession self-policing. Maybe that is what we should do in our own profession. Instead of demanding that the public change its opinion, maybe it's time we changed the practice of law and return it to the level of prestige which it once commanded.

Stan

You know Ted, this is really a new low... Coming in here and posting under the name "Piotr." Be a man.

Evan

Piotr: The fact that complaints generally survive demurrers can be more easily explained by the law of pleadings than by assuming that judges are afraid or that lawyers are unethical and sleazy. The problem with diatribes like yours is that they betray a certain cynicism or bitterness that leads one to question the author's motives. If you think that the law should require a higher standard to state a claim, why not say it? Instead you engage in lawyer-bashing. It makes me think that for you, lawyer-bashing is more important than anything else. If you're going to continue to engage in lawyer-bashing--for example, until you've worked another five years and have twice as much experience--I'd advise you to at least tone down your overstatement. Once you make absurd claims like "there are far more unethical and sleazy attorneys than there are ethical ones," you're going to lose your entire audience, excepting only the complete nuts that get all their information about the legal profession from websites like the one that led you here.

By the way, I don't want to shatter your illusions about what the future might hold, but the legal profession has never commanded all that much prestige.

Ted

It took me 10 seconds on Google to determine that Piotr appears to be a real person, and Stan is once again recklessly throwing false accusations. Good thing for his anonymity that I'm not the litigious type, but nonsense like this is why I don't waste time here any more.

E. Sodaro MD

Laugable.

Evan

Ted: Don't be hopelessly ridiculous. Can't you tell that Stan was teasing you?

Lighten up! We like having you around these parts. But if you still insist on leaving us alone with our own nonsense--well, we all know where to find you if we're ever running low.

Evan

Ted: Sorry, but I'm back for more. The first time around, I missed the delicious irony of your threat to sue Stan. Overlawyered, indeed!

mythago

but nonsense like this is why I don't waste time here any more.

Uh, Ted, if you post about how you're not wasting time here anymore, you are wasting time here.

Hint: dramatic exit lines lose some of their panache when they're re-used.

Piotr, assuming that the other side is evil, all attorneys but you and your firm-mates are sleazebags, all judges are stupid, and so on, sounds more like projection than an accurate list of problems in the legal profession.

JK

UA's proposed system seems bound to result in a windfall for plaintiffs attorneys. If successful medical malpractice suits are required to be reported and count as strikes against a doctor, no doctor would risk going to court and losing. They would enter into a confidential settlement virtually every time to avoid a public black mark. The result would be a bolder trial bar that would file even the most marginal claims knowing that doctors would rather make the claims go away than risk their careers. Anyway, wasn't this proposed system a ballot initiative in Florida last year?

Piotr

Evan, your vitriolic response only serves to prove my point. I did not direct my animus at any one person. Instead, I directed it at our profession. You, in turn, respond with clear disdain and condescension. I presume by your arrogance that you have been practicing longer than I. I'm presuming that you have been practicing long enough to know and understand the cardinal rule: attack the argument, not the arguer. Attacking your opponent personally is the lowest form of argument. Try not to engage in that in the future as you lose credibility.

As for our profession, does anyone disagree with me? Think back in the last year, five years, ten years. We all have stories of low-life, scum of the earth attorneys pulling nonsense that is unconscionable. And we see these same attorneys go into court and not receive as much as a tongue lashing, let alone sanctions for their behavior.

Do I promote stricter pleading requirements? No. That would not solve the problem. To survive demurrer, one need only plead a single fact, true or not, which gives rise to a cause of action.

How about make the consequences of frivolous litigation and bad faith tactics more strict? How about we ask our judges, who are sworn to uphold our laws and the integrity of our judicial system, to grow spines and actually punish those in our profession who cause it to be shamed?

Mythago -- no, I am not the sole bastion of ethics in my community. Nor do I presume that all judges are stupid or all lawyers evil. I was using hyperbole to make a point. I don't know where you gentlemen practice but here in California it is ridiculous. While there are many judges who are brilliant people, there are more that are so tired (or maybe overworked?), so jaded that they no longer desire to effectuate a change. As you can see, I am filled with righteous indignation. When I see an attorney lie, cheat, steal, etc, I bring it to a court's attention. Even in cases where I have had absolute proof of their lying, my complaints have fallen on deaf ears. Judges don't want to hear about disputes between lawyers even when one is engaging in truly underhanded tactics.

I could easily go on and on about the problems that the profession faces. Seriously, does anyone here dispute my statement, and my belief, that the number of sleazy, unethical attorneys, in this country outnumbers those who are not?

mythago

I was using hyperbole to make a point.

Correction: you were using hyperbole to try and make a point. You did, but it wasn't the point you were trying to make. And yes, I seriously dispute your point that sleazy, unethical attorneys outnumber the rest. I would not even say that most of the defense attorneys I deal with are sleazy and unethical.

JK, if a successful malpractice suit isn't evidence that a doctor committed malpractice, what is?

Evan

Piotr: Thanks for returning to comment. I agree that I was out of line by making reference to the fact that you are a relatively new lawyer. However, it seems to be that if you want to lawyer-bash on the scale at which you are attempting it, while using your own personal experiences as a lawyer to back up your claims, you'd speak with a bit more authority if you'd been practicing longer. That was the point I was trying to make in my vitriolic way.

In any case, why not give us some examples? If nothing us, tell us a little more about the times you've brought to a court's attention that your opposing lawyers have lied, cheated, and stolen. What was the actual wrong that they committed? What did you do about it procedurally? How did the court respond? Did you protect your record and take matters to a higher court? How did the story end?

Piotr

Mythago: I agree with you insofar as I generally find the defense bar to be of a slightly better ilk. The ethical problems that face our profession seem to be more prevalent in the plaintiff's bar which appears more often motivated by money than by any genuine desire to help people.

I also take exception to your comment: "If a successful malpractice suit isn't evidence that a doctor committed malpractice, what is?"

As you well know, a successful malpractice suit merely evidences the fact that a majority of a 12 layperson jury found liability. While it does, in the legal sense, evidence malpractice it does not do so in the empirical sense. Heck, look at all of the successful breast implant litigation which has now been determined to be complete bunk (I know, these were more product liability than med mal but the point is the same.) The fact that you win a case doesn't mean you're right.

But you do bring me to a good point -- what happens when a lawyer wins a case that he shouldn't? It emboldens him and lets him do it again. Right or wrong. He doesn't care. I have known plenty of lawyers who have done just that. Mold litigation in California was a big ticket item for a couple of years. For a few years, some of the plaintiff's bar rolled the dice, scared the hell out of a jury by using junk science. And they got multi-million dollar verdicts. Mercifully, after a few years, those same firms started losing their cases because the mold scare turned out to be mostly nothing. But during those years when the plaintiff's bar and the media had everyone in a frenzy, plaintiff's lawyers were extraordinarily quick to scream mold. The fact that their client had a meth addiction (as in one case I litigated and won) was of no concern. It wasn't the meth causing all of these health problems, it was the non-existent mold. The attorney was willing to take the bet because he rolled the dice before and won.

Our system of justice has no mechanism for properly punishing these types of lawyers. Do you know what this lawyer's punishment was? He didn't win. He didn't get paid. That's all. So he just moved on to the next bullsh!t plaintiff and rolled the dice somewhere else. The fact that he never had a legal basis nor a good faith belief in the merits of his client's claims did not matter. All he needed to do was allege one fact. He did. And it cost some insurance company $150,000 in defense costs.

Do you not agree that there should be some sort of punishment available for these types of bad faith litigation? Do you not agree that judges should punish these types of lawyers more often? What stops you, for instance, from presenting a non-meritorious claim? Is is fear of reprisal? No. The only thing that keeps any of us in check is our own moral compass. Well, for a lot of lawyers, that is not enough to resist the temptation of big money.

Piotr

Evan, thank you for your reply. I understand your position and agree that I may have spoken too harshly. I would like to give you a prime example. There is an attorney here in Northern California who is notorious. Notorious in that he is probably the absolute least ethical attorney I, or any other practitioner, has ever encountered. I have spoken with at least 3 dozen other lawyers about this man and each of them are equally as vehement as I in this regard. He is the absolute lowest of the low.

As an example, I had once asked him to produce his clients' X-rays. Discovery had closed so I could not send out a request for production of documents without first obtaining a court order. Nonetheless, I bargained something else away and in exchange got an agreement that he would produce the X-ray films. he did not. So, at a deposition, on the record, I asked him to confirm that he was going to provide me the X-ray films per my request. He agreed. Again, it was on the record before a certified shorthand reporter.

He then refused to produce them again. I filed a motion with the court asking to enforce our agreement. Do you know what he did? He claimed that he never agreed to produce the films. He claimed that the court reporter and I, after he left the deposition, conspired to fabricate the record. This was just the last of such accusations. Every single letter I presented to the court from this lawyer's office, with his signature, if he didn't like what it said, he would claim he never wrote it. He has done this many, many times to many, many attorneys. And he never gets sanctioned. Do you know why? Because he is so horrendous that judges don't want to deal with him at all. They just want him out of their courtroom.

It is these types of experiences that make me jaded. I see attorneys who have been practicing as long as I've been alive and who know the system so well that they know every single trick they can pull without sanction. And they pull them. Judges should not allow it. We shouldn't be able to have a system where such abuses can and do routinely take place.

mythago

I agree with you insofar as I generally find the defense bar to be of a slightly better ilk.

Wow, did you ever misunderstand me. I meet plenty of sleazebag defense attorneys; it's just that they're in the minority.

You're absolutely right that judges should not allow this behavior--I am astonished that judges in your area are afraid of an attorney. (I have seen San Francisco judges ignore or shrug off rude attorney behavior, but I have never seen one who is actually terrified of dealing with an unpleasant lawyer.)

You do realize that eventually, one of those unethical lawyers is going to do something that you can report to the State Bar.

wavemaker

It is not a requirement of the job description for "unethical sleazebag" lawyers that all of the lawsuits they bring be baseless. They are alowed to bring suits that actually have merit, so long as they prosecute them sleazily, such as by means of the discovery diabolism described by piotr above.

I would also like to disagree with the writer's definition of "frivolous." In too many cases (I've been litigating for 25 years), one sees civil actions that are perfectly able to survive a 12(b)(6) -- how difficult is it to craft a Complaint to insure that all of the elements of the claim are properly covered? The real problem is that one or more of the allegations made are false -- as in fraudulent, fictitous, falacious, phoney. The suits are brought for harrassment, distraction, spite, any number of reasons besides redress of legitimate grievance.

I don't know what unnamed associate's definition of "bullshit" or "exaggerated" is, but in my book, "bullshit" means "false." A lawsuit with a false allegation of fact (not a difference of perception -- and out-and-out lie) is a frivolous lawsuit. Lawyers that knowingly file lawsuits containing false facts should be disciplined severely -- SEVERELY. "Exaggerated" means, to me, an articulation of a fact that is made for the purpose of creating a false impression.

When unnamed associate has had two experiences in which she has witnessed what she knows to be a false lawsuit survive a dispositive motion, I predict her perspective will mature a bit.

Supremacy Claus

Unnamed: Naturally, the defense bar needs the plaintiff bar far more than it needs the individual client. No defense attorney will want to have the slightest discouragement inflicted on the plaintiff attorney. Very often, a lawyer is needed to defend the client from his own treasonous insurance defense attorney. Go ahead, tell a defense attorney to file an ethics complaint against the plaintiff attorney or against a judge when the rights of the client have been violated. See if that has ever happened in all of history. Better yet, do it. Report back, what happened.

Once collection cases are subtracted, the majority of plaintiff cases are devoid of merit, so say the juries. The defense attorney makes money on every case. The plaintiff attorney needs only one good case out of 10 for a good year. Those that do succeed to fool the jury are through trickery and cheap theatrics, and few of those have the slightest hint of any merit.

There is no recourse for the victims of this coziness. The Disciplinary Counsel will never enforce Rules 3.1 to 3.3, nor even bother to investigate any complaint from the public. They think complaints from the public are a joke, and get the giggles whenever one comes in.

The lawyer has dealt itself total immunity from adverse third parties despite the express duties of 3.1 to 3.3. It has dealt itself a privity obstacle to legal malpractice actions by adverse third parties, an obstacle and a self-dealt immunity no one else has had since 1915. Your profession is depriving itself of the great benefits of torts, and the quality of its work shows the result of this harmful self-indulgence. Your profession sucks. It is in utter failure in every subject of the law.

When there is no recourse, no justice from your profession's massive criminality, self-help is morally justified, eventually a duty of every citizen. You lawyers are lucky that has yet to happen.

mythago

Sounds like somebody is bitter from losing a child-support fight.

Anirban

Piotr
we need more lawyers like you not less, who has the balls to challenge the status quo.But since you are quite young in your profession, I hope the current scenario doesn't make you demoralized as it has already disillusioned you. I would love to see you blogging and making your points ten years down the line and still enjoying it.
Take regards

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