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Bork and the Barbary Pirates:

Bork in 1995:

Our expensive, capricious and unpredictable civil justice systems present precisely the kind of conflicting and costly state regulation of commerce that the Commerce Clause was designed to solve. Lawsuits, verdicts, settlements and the insurance necessary to defend and indemnify against them, are driving up the cost of goods and services everywhere, and consumers are paying the bill. The litigation explosion has no respect for the state lines because commerce and insurance are now national. Interstate commerce and trade have become the principal victims of a runaway liability system.

Courts are now meccas for every conceivable unanswered grievance or perceived injury. Juries dispense lottery-like windfalls, attracting and rewarding imaginative claims and far-fetched legal theories. Today's merchant enters the marketplace with trepidation - anticipating from the civil justice system the treatment that his ancestors experienced with the Barbary pirates.

Bork and Olson, Trial Lawyers and Other Closet Federalists, Wash. Times, March 9, 1995.

As I wrote in the comments to Eugene's post below, I don't think that someone with such views is in any way barred morally or otherwise from using the tort system to redress an injury, but as a prominent attorney himself, Bork could instruct his attorneys not to assert "far-fetched legal theories" (e.g., punitive damages for a routine negligence case), or to request a "lottery-like windfall" (over $1 million in damages).

Charlie (Colorado) (mail):
Or, he could figure that having more or less lost the argument, he was entitled to take advantage of the system as it is, instead of how he would have it.
6.8.2007 2:26pm
DavidBernstein (mail):
The question is whether he thinks that bludgeoning defendants with far-fetched legal theories and inflated damages claims is just inefficient, or also unethical/immoral. The Barbary pirates analogy suggests the latter.
6.8.2007 2:30pm
anonVCfan:
Is this a variation on the canard about how Marxists are hypocrites if they don't give away all their money?
6.8.2007 2:36pm
DavidBernstein (mail):
No, not at all. If Bork thinks that certain behavior by plaintiffs' attorneys is equivalent to "piracy," clearly he shouldn't engage in it. The analogy would be to a Marxist who denounces a specific individual behavior as immoral, but who then engages in that specific behavior. Or to an author who condemns the sexual exploitation of women, who then is caught frequenting a brothel.
6.8.2007 2:40pm
BTD_Venkat (mail) (www):
Or free marketeers who are caught complaining about market conditions - not suggesting anyone in particular.
6.8.2007 2:42pm
DavidBernstein (mail):
That would properly be free marketeers who advocate government regulation when it's in their own interest. If you're going to be a wise-a**, you should at least get your analogies straight.
6.8.2007 2:45pm
JohnThompson (mail):
Why does that necessarily follow? Could he not perfectly legitimately conclude that certain behavior by plaintiff's attorneys is equivalent to piracy, yet make a rational decision ten years later to engage in "piracy"? Next thing you know you're going to be insisting that people like Al Gore actually start to reduce their "carbon footprints" and that greenies stop driking lattes and start living in grass huts. Geez....
6.8.2007 2:46pm
Richard Riley (mail):
I'm surprised Bork and the Yale Club weren't able to settle this. The complaint says the injury occurred June 6, 2006, and the complaint is date-stamped June 6, 2007. I wonder if there's a one-year statute of limitations involved here (I have no idea, just wondering), and since they apparently hadn't been able to settle yet Bork needed to file a complaint to protect his rights. All look pretty run-of-the-mill to me.

Bork is represented by Gibson Dunn &Crutcher. Big fancy law firm, but I guarantee plaintiffs' slip-and-fall work isn't among their specialties!
6.8.2007 2:49pm
Steve:
This whole situation is a windfall for us tort-reform opponents. Judge Bork, brilliant though he may be, is a gift that keeps on giving.
6.8.2007 2:59pm
anonVCfan:
I appreciate Prof. Bernstein answering comments. What I'm not understanding (maybe I'm just being dense) is how this differs from a conventional personal injury suit.

A 79-year-old man slipped and fell in a public and sustained what appear to be serious injuries. He has a theory that it's the Yale Club's fault. His complaint says so, and asks the court, essentially, for whatever he can get.

Is the objection that people have to this that the facts don't support his claim? If so, I'd like to see a source that says what the facts are in more detail than is alleged in the complaint.

Is the objection that he asked for damages he probably can't get? This seems like a silly objection to me, because complaints routinely do this to avoid waiving rights. If Bork's attorneys had made ludicrous settlement demands, that would be different. Erring on the high side when filing a complaint, however, is a different sort of thing.

This strikes me as standard personal injury practice. It's not as if Bork's injuries are fake or minor, it's not as if his attorney approached him about suing, it's not as if Bork is arguing some sort of bogus failure to warn of the obvious theory. It could be that the injuries are his own fault, but that's far from obvious at this point.

Without more facts, it looks to me like people are tripping over themselves to demonstrate their "principles" by throwing Bork under the bus, when it's not clear that he deserves it.

But then again, I'm open to the possibility that I've missed something basic.
6.8.2007 3:15pm
eddie (mail):
The elephant in the room is that Judge Bork paints with broad strokes. His indictment is systemic and yet when it's his rights to be protected he damn well wants to take advantage of the "piracy". If conservatives were really interested in "tort reform" then why not attack the true abuse: 99% of commercial litigation (especially IP litigation which for some companies, see., e.g. SCO v IBM, is the entirety of the business plan).
6.8.2007 3:23pm
Steve:
This strikes me as standard personal injury practice.

Not really. But setting that aside, Judge Bork is someone who has strenuous objections to "standard personal injury practice." That's why this story gets so much attention.
6.8.2007 3:26pm
tbaugh (mail):
I agree with anonVCfan. It seems premature in the extreme to say the awarding of the damages requested would be a "lottery-like windfall"---unless one has a detailed knowledge of how badly Judge Bork was injured, and what the consequences, economic and physical, were.
6.8.2007 3:26pm
Alex R:
I would make a general point about accusations of "hypocrisy": If someone endorses, for example, a proposal to double the federal income tax, it is not hypocritical for that same person to fail to voluntarily cut a check to the federal government equal to their existing income tax.

People can endorse changes in the rules of the game for all players, and still unhypocritically take advantage of the existing rules -- after all, their opponents will be taking advantage of the same rules when they have the same opportunity.
(I might make an exception to this principle when the powerful take advantage of rules they oppose when battling the weak, but neither the federal government or the Yale Club could be considered particularly weak opponents.)

So I would say that Bork has every right to have his complaint judged in the courts in this matter, regardless of any remarks he may have made earlier about the tort system.
6.8.2007 3:45pm
Ted Frank (www):
I disagree that "99%" of commercial litigation is abusive, but the record will reflect that the pro-reform websites I write for have regularly criticized patent trolling and other abusive corporate litigation. And ATRA identified Marshall County, Texas, home court of a lot of patent trolling, as a judicial hellhole.
6.8.2007 3:54pm
Eric @ New York Personal Injury Law Blog (www):
The complaint says the injury occurred June 6, 2006, and the complaint is date-stamped June 6, 2007. I wonder if there's a one-year statute of limitations involved here (I have no idea, just wondering), and since they apparently hadn't been able to settle yet Bork needed to file a complaint to protect his rights.

Three years for negligence here in NY.

--ET
6.8.2007 3:54pm
Anderson (mail) (www):
The date is not a coincidence, I'm sure. There's some legal theory at work.
6.8.2007 4:00pm
CDU (mail):
"Yo ho, yo ho, a pirate's life for me!"
6.8.2007 4:24pm
JB:
AnonVCfan: He's not arguing that Yale should have put in steps (under one or another discrimination law, that would be arguable), or that the edge of the dais was obscured and unclear (making Yale negligent). He's arguing that he saw a clearly-delineated dais, attempted to climb onto it unaided rather than ask for steps or a hand up, failed, and injured himself. And that that, somehow, is Yale's fault.

It's not the suit itself, or the money, it's his legal theory which fits into the "It's my fault, but give me money" pattern.
6.8.2007 4:26pm
nunzio:
I think JB hit the nail on the head here. If the guy was as smart as he claims to be, he would not have attempted to climb onto the dais at age 79. Judgment for defendant.
6.8.2007 4:56pm
Richard Riley (mail):
Well, apparently knowledgeable commenter Eric above says it's probably not driven by the statute of limitations. So a little more uninformed speculation: down here in sleepy old D.C., we hear a lot about the highly caffeinated personal injury practice up in the city so nice they named it twice, and maybe there's some of that going on here. I mean, Bork and the Yale Club and their respective lawyers and insurers could well be continuing to negotiate about Bork's compensation for his injury, but Bork's team though they'd throw a court complaint into the mix just to keep the pot boiling, but with everybody expecting it'll be settled soon enough. No?
6.8.2007 5:02pm
Bill Poser (mail) (www):
I think that there are three issues here. The first is that given the circumstances it is questionable whether the Yale Club was at fault. Second, even if Bork's fall was due to the Yale Club's negligence, his request for compensatory damages exceeding $1 million appears to be extravagant. As far as one can tell from the information available, his medical costs consisted of outpatient surgery for a hematoma and he was not in any way disabled beyond the minor and temporary effects of some pain and bruising. He might be due compensation of a few thousand dollars, maybe even a few tens of thousands, but $1 million seems very high. Finally, there is no apparent basis for punitive damages.
6.8.2007 6:32pm
David M. Nieporent (www):
Richard, it's rare that filing a complaint actually increases leverage in negotiations. The threat of doing so can increase leverage -- sometimes we will draft a complaint (*) and send it, unfiled, to the other side to say, "Here's what you're going to have to deal with if you don't settle" -- but filing doesn't really do so.

Normally, if settlement negotiations are ongoing, the only reason one would file is if the statute of limitations is in danger of running. You wouldn't file unless/until the negotiations broke down.



(*) I don't do PI work, so perhaps it's different in that context, but I don't see why.
6.8.2007 6:49pm
wm13:
What I don't understand is (i) why anyone would hire Gibson Dunn for this sort of matter or (ii) why they would take it, since it doesn't seem like a particularly lucrative case. I suppose one possibility is that Bork had trouble getting a firm that specializes in personal injury work to take the case precisely because it is weak, and that most such firms probably don't want to do hourly work, so he hired Gibson Dunn because they are willing to do anything (within reason) if you pay their hourly rate.
6.8.2007 6:51pm
The Impressive Mr. X (mail):

I don't think that someone with such views is in any way barred morally or otherwise from using the tort system to redress an injury


How convenient. It is always nice to make exceptions to our beliefs when those beliefs end up being personally inconvenient. For example, it would be inconvenient for Bernstein to get a job at a private university, even though he does not believe that the public university that employees him as a government employee should exist.

This is nothing more than unprincipled "I don't want to personally live with the consequences of my beliefs" libertarianism. It is both sad and pathetic. Really believing in something means making personal sacrifices sometimes.
6.8.2007 6:56pm
anonVCfan:
Mr. X, you're not very impressive.
6.8.2007 7:33pm
The Incredibly Impressive Mr. X (mail):
anonVCfan, you're not at all substantive.
6.8.2007 7:40pm
wooga:
Merely because he asks for a million bucks does not mean he thinks he is entitled to that amount. If he demanded "$36,124 for my medical bills," the opposing insurance company would fight and negotiate him down to $14,000, and Bork would end up owing more than that in attorney fees. In contrast, by asking for a million dollars, the claims adjuster on the other side will be happy to offer $40,000 to make the case go away on day one, before the attorneys run wild with their billing. Thus, by making outrageous opening demands, Bork is actually pursuing the best possible strategy to obtain a fair settlement at the lowest attorney fee amount possible (for both sides).

This is the natural result of how insurance adjusters are evaluated by their superiors. It is an inefficient system brought about by the carriers becoming way to trial adverse. Why are they so trial adverse? Because of Bork's nemesis - the greedy trial attorneys. It all comes full circle.
6.8.2007 7:52pm
wooga:
In addition to noting my "to=too" typo, I want to add that it may very well turn out that Bork has become that which he despises. It's too early to tell, and this simple complaint is insufficient to start with the hypocrite chants.
6.8.2007 8:03pm
wooga:
Richard, it's rare that filing a complaint actually increases leverage in negotiations.

David, PI is only a very minor part of my practice, but in my experience (on both P and D sides), filing a suit is the ONLY way to get certain carriers to even cover your medical costs in PI cases. Sometimes you need a little verified discovery to ensure that the 'physical therapy' bills claimed by plaintiff are not actually 'happy ending massage parlor' bills.

Yes, I had a case where that actually occurred. I got a little suspicious that this rear-ender victim (he had given off a creepy vibe in his depo) continued to get three massages a week. I sent out a subpoena for the parlor records, and the case settled before the subpoena was executed.
6.8.2007 8:14pm
anonVCfan:
Mr. X, I didn't think your rant deserved a substantive response, but Ilya has a post you may find interesting.
6.8.2007 8:17pm
xxxxxx (mail):
He has damages and sued for them. Has Bork ever said he was against meritorious claims, which he believes his is. I am surprised someone like you would write something so stupid as this. Thinking that being for tort reform means you are against meritorious claims is something i would expect to read on Daily Kos or other blogs written by ignorant, hysterical lefties.
6.8.2007 8:32pm
David M. Nieporent (www):
Wooga, I think you missed my point. (My fault: I phrased it badly in that first sentence, although I clarified it later in my post.) I agree with you that an insurance company may not be willing to negotiate until you file suit; I was responding to the notion that if active negotiations were ongoing, filing suit would be helpful.
6.8.2007 10:28pm
The Impressive Mr. X (mail):

Mr. X, I didn't think your rant deserved a substantive response


But it deserves a non-substantive response? You clearly have too much time on your hands.
6.8.2007 11:02pm
David M. Nieporent (www):
xxxxxx: Presumably most people who file suit "believe" their claims are meritorious. The question here is not what he subjectively believes, but whether the claims are objectively meritorious.

* Negligence: case is extremely weak -- the fact that he attempted to do something beyond his physical capabilities does not make them negligent -- but may be legally valid.
* $1,000,000 demand: very dubious.
* Attorneys fees demand: frivolous
* Punitive damages demand: frivolous
6.8.2007 11:15pm
byomtov (mail):
The question here is not what he subjectively believes, but whether the claims are objectively meritorious.

I think the question is what he would say about someone else filing a similar lawsuit. If that would be "runaway liability system," then he shouldn't file. If he would see it as a legitimate case then he should.
6.9.2007 11:17am