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Overlawyered.Com:

I like this site, and if you do too, you might want to vote for it in the ABA's Blawg 100 "Generally Speaking" category. "You may vote for as many blawgs as you wish, but you can vote for any particular blawg only once." (I voted for How Appealing as well as Overlawyered.)

Just a thought:
"You may vote for as many blawgs as you wish, but you can vote for any particular blawg only once."

That could be better worded. It took me a few minutes to try to figure out whether that sentence was a mistake, or a nonsensical joke, or whether I was just an idiot not understanding it properly. (It sounded like the sentence was saying "vote for as many blawgs as you want, but you can only vote once for one blawg.") Turns out I was just an idiot.

(For all other idiots like me, the sentence means that you can cast a vote for as many blawgs as you like, but for each blawg you do vote for, you can only cast one ballot, and no more.)
1.2.2008 1:27pm
denk:
I like this site as well. But just recently I had a weird, negative experience with them: it appears that they moderate comments with a heavy political / ideological bias - I was very surprised and disappointed.

I know that's a strong claim to make. Here are the details if interested:

On 12/20, three articles inspired me to comment: One comment was benign and neutral, and was posted fairly quickly:

STORIES THAT SHOULDN'T GET AWAY, PART I
(Comment by me, Robb Shecter)

My comments on two other posts, though, were motivated by the blogged-about websites:

I AM LAWSUIT ABUSE

JUDICIAL HELLHOLES 2007

I found reasonable questions about their motivations after I read them and took the time to look into the sites' sources. (I found that both sites either have no data to back up their claims, or misinterpret data to promote their point of view. They appeared to simply be marketing or propaganda.)

My comments weren't critical of Overlawyered; but rather written in a cautionary, fact-checking tone about what I'd found. Until this experience, I hadn't thought that there was a political dimension to this topic or blog. I'm disappointed that this may be the case!

So anyhow, that's my story. This experience was disconcerting enough to me, that it's inspired me to start a group blog with fellow law students. Above everything, I believe we must be fact- and evidence-based in our communication and policy making.

So no - they won't get my vote. :-(
1.2.2008 1:51pm
denk:
Meant to say that I initially had questions about the *3rd party websites'* motivations.

Also meant to add that my fact-checking comments were *not* posted.
1.2.2008 2:12pm
Ted Frank (www):
Yes, I fully admit that I moderate off-topic trolling comments that can derail comment threads or just play "Argument Clinic" by simply gainsaying without contributing any information.

In Shecter's case, he complained that about the quality of data the I Am Lawsuit Abuse website cited -- and then made a series of incorrect factual assertions that didn't cite any data, making one wonder about the sincerity of his original objections. He also asked a question ("Who is the group [that established the I Am Lawsuit Abuse website]?") that was answered in the first five words of the post he was ostensibly commenting on, but apparently hadn't actually read. These two things combined led me to believe (perhaps incorrectly) that this first-time commenter was attempting to troll, rather than seriously engage in a discussion.

I also took his comment that he "couldn't find any data" in the Judicial Hellholes report -- which had over 450 footnotes -- to be a troll in light of the other comment.

Plaintiffs' attorneys Peter Nordberg and Eric Turkewitz regularly post thoughtful comments that disagree with us, and I've never moderated a single one of their comments. Other websites post every comment, and let comment threads devolve into name-calling. If moderation means I have the occasional false positive and over-moderate a good-faith comment that was just honestly clueless rather than disingenuous, it's worth it not to have every thread devolve into the anonymous rantings of "Supremacy Claus" against "land pirates."
1.2.2008 2:28pm
Mr. Liberal:
denk,

Do not worry. It is a sign of Overlawyered.com's intellectual flabbiness and tendency towards propaganda rather than truth that it does not dare allow unmoderated comments. Apparently, it is a blog for true believers.

One really good thing has come of this. You are no longer so naive when looking at this propaganda. Hopefully, you are a more critical thinker who will think twice before making assumptions about the political neutrality of other sites.
1.2.2008 2:36pm
Mr. Liberal:

... or just play "Argument Clinic" by simply gainsaying without contributing any information.


But, apparently, comments that agree with a post without contributing information are good and allowed. Only those that disagree are held to this standard.
1.2.2008 2:40pm
r78:
Overlawyered is pretty much just a source of predictable tort-reform propaganda.

They censor viewpoints that they dislike - see the discussion above.

If there were a list of "worst" sites, it would get my vote for that.
1.2.2008 3:03pm
denk:
Thanks for the comments, Ted. I am interested in responsible and interesting discussions. And I'm certainly interested to find out if I'm on the wrong track. I didn't realize that you had reasonable-sounding issues like these with my blog comments.

But from re-checking these sources, I think my initial take was on target:

1) I can't find a) statistical data or b) real methodology in the JUDICIAL HELLHOLES report. All that I saw are *anecdotal reports* of headline-grabbing excesses. And these are what are footnoted, as you mentioned. But I believe a better, scientific standard is to look at some kind of aggregate data - not just focussing on the attention grabbers. For example, "A state is a Hellhole if its 2006 per capita tort awards are 30% above the national median."

Maybe I simply didn't look in the right part of the document. I'm happy to find out if I'm wrong.

2) I AM LAWSUIT ABUSE: I don't remember how I asked about the name of the organization. Maybe I wasn't too articulate. Today, however, I rechecked the site and sources, and believe that my substantive issues (which you didn't address above) are still valid:

This site is deceptive in a bait-and-switch style: 1) Slick video presentations that often don't make solid claims that can be refuted. e.g., Dr. Olga Jarett's story; Randy Baumgarten's story. 2) The emotional / man-on-the-street story lines of the "Stories" are not the types of torts referred to in the Towers Perrin report - Asbestos, and other less sexy tort sources. 3) The "Facts" they quote are generally either not facts (opinion polls) or are used misleadingly: The Towers Perrin report actually shows that, with the exception of two costly years, tort costs have been FALLING since 1991, and probably a few years beforehand. (p. 3) And those exceptions? Due to asbestos claims. (p. 4) Surely, this would be recognized in a balanced report.

Quick summary - I'm totally open to the idea that tort reform needs to happen, but these two sources have an unwholesome and questionable feel.

And secondly - maybe my original comments weren't as clearly written as this one. Would the above had satisfied your editorial requirements?
1.2.2008 5:26pm
Guest guy (mail):
Overlawyered is censored. Anything that does not admire tort reform is not allowed. Even legal source on merit of their stories.

There are also many outright lies or half lies in MOST of their stories. For instance, they lied that the guy who sued 1-800-Flowers did not have an express agreement to keep his name away from soon-to-be ex. They were negotiating a settlement at that point, and in no way was he cheating. But that would make suit look as a book case of breach of contract.
1.2.2008 5:57pm
Max:
I'm glad that denk has taken the time to call out Mr. Frank and Overlawyered on these two instances and I'm disappointed that Professor Volokh, who is nothing if not intellectually honest and even-handed, would recommend that site with no qualifications. In direct contrast to this blawg, Overlawyered does not even pretend to deal with opposing views and often engages in entirely unsupported vague allegations and innuendo about the ethical propriety of plaintiffs' lawyers. As a fairly conservative guy, and a plaintiffs' lawyer who knows, works with and respects many of the people trashed through snarky innuendo on Overlawyered, I can state definitively that it is nothing like the Volokh Conspiracy.
1.2.2008 6:42pm
Ted Frank (www):
I have nothing to do with the I Am Lawsuit Abuse site. All I did was link to it and note its content and how it might be interesting to Overlawyered readers who'd been following the Chungs' case.

Towers Perrin does not show tort costs "falling since 1991." It shows tort costs rising from 0.62% of GDP to 2.28% of GDP between 1950 and 1987, dropping in response to the first wave of tort reform to 1.81% by 1999, increasing sharply from 2000 to 2003, and down to 1.87% in 2006, more than triple what it was in 1950. But just because I've lost 20 pounds in the last few months doesn't mean I'm not overweight--and, as I've noted on several occasions, Towers Perrin's estimates understate the impact of the tort system by failing to take any measurement of the secondary effects of raised costs to consumers, lost jobs and depressed wages, and adverse effects on public health and safety. (And given that these days most asbestos costs are imposed upon innocent third parties, that more asbestos money goes to lawyers than to injured plaintiffs, and the extensive fraud by the plaintiffs' bar in the asbestos context, asbestos remains fertile ground for reform.)

I don't write the Judicial Hellhole report, which is merely an attempt to document jurisdictions where the judiciary systematically acts abusively to funnel money to trial lawyers. If anything, it's underinclusive.

What is the lie in Jason Barney's account of the 1-800-Flowers case? I don't see it. Three different posters wrote about the case on Overlawyered, and not one claimed that Leroy Greer didn't have an express contract, merely that it was a suit that readers might be interested in. The anonymous poster is mistaken in his characterization of the case, though: Greer alleges that he had reconciled with his wife, who had moved back in, but had his outside relationship exposed when 1-800-Flowers faxed the receipt to his wife at her request. I won't be so uncharitable as to call Gg's misstatement a "lie," however.

My most recent Overlawyered post linked to Consumerist's call for anti-reform legislation, and Overlawyered regularly links to and comments upon anti-reform articles, blog posts, op-eds, and legislation, so r78's and Gg's claims of "censorship" and one-sidedness are the false attacks of people who never read the site. (r78: didn't you throw a big fit because I didn't explicitly disclose that I work for AEI, even though it's public information? How come you never disclose that you work for a California plaintiffs' law firm that is extorting money from innocent defendants when you launch your attacks on civil justice reform and reformers?)
1.2.2008 6:45pm
Ted Frank (www):
Max: whom have I unfairly "trashed through snarky innuendo"? It seems to me that this a case of motes and beams when you make vague allegations against my writing that cannot be falsified because you don't back them up with any facts.

It's certainly not true that I don't deal with "opposing views"; my most recent SSRN piece does nothing but. Because of the holidays, I've only posted a few times in the last week, but I link to the anti-reform site Consumerist, Paul Krugman, Daily Kos, and Barack Obama on posts I've written that are currently on the front page.
1.2.2008 6:52pm
Max:
I shouldn't even have bothered to post since Mr. Frank was getting ready to prove my point. I have no idea who r78 is or what law firm he works for nor do I think it's relevant to these comments. But the overwrought suggestion that a plaintiffs' firm is guilty of extortion is par for the course. Just look at the site. No need for an exchange of ideas or a discussion of public policy when you can traffic in hyperbolic insults.
1.2.2008 6:55pm
denk:
Ted wrote:


I have nothing to do with the I Am Lawsuit Abuse site. [...] I don't write the Judicial Hellhole report...


Of course not. I get that. I tried to make that clear. I'm just pointing out interesting information I see about these documents, in the (assumedly) same spirit that you were, when you found them and linked to them.

BTW, I disagree with your Towers Perrin analysis, but I think we can leave that conversation where it is - it's OT here; I don't want to annoy people.

My real point was to show that this is a subject about which reasonable people can disagree, and that these documents may be questionable. And not to prod you too hard, but I don't think you answered my question:


And secondly - maybe my original comments weren't as clearly written as this one. Would the above had satisfied your editorial requirements?


NB: I think I actually put a lot of detail in the posts above - more than I usually would for a simple blog comment.
1.2.2008 7:08pm
Ted Frank (www):
I don't think who r78 works for is relevant. r78 does, however, and I just wish for him to hold himself to the standards he claims to espouse or to apologize for his earlier personal attack.

Several plaintiffs' firms (including, by one of r78's comments in another thread, r78's) are guilty of legalized extortion: I think it's a public-policy problem when a law firm brings hundreds of meritless cases, and then settles for less than the cost of defense at pennies on the dollar of the claimed injuries for a big payday for the attorneys.
1.2.2008 7:47pm
mrb (mail):
I'm surprised to see a rather serious or at least thoughtful site like Volokh back what is essentially an issue lobbying site like Overlawyered, which is basically the counterpoint to the ATLA site (or whatever ATLA calls itself now).

I've always found the posts and comments in Volokh to be more balanced, or at least more intellectually rigorous than those at Overlawyered. I would hope regular readers of Volokh would not read Overlawyered, or ATLA for that matter, with the same expectation of quality commentary on the law.

Like the Tillinghast report Frank so happily cites, Overlawyered is filled with misleading statistics and dubious methodology of the same kind Frank routinely criticizes anti-tort "reform" groups like Public Citizen of using.
1.3.2008 10:03am
Ted Frank (www):
And plaintiffs' lawyer Matt/mrb, who has never ever commented on Volokh, and was barred from Overlawyered and a number of doctors' blogs for persistent trolling and personal attacks, shows up to this blog to launch a baseless hit-and-run anonymous attack in the comments. If anything demonstrates how indispensable Overlawyered is, it's the degree of vitriol the site provokes amongst the trial bar.
1.3.2008 10:55am
mrb (mail):
Actually, Ted, the only blog I've ever had a comment removed from is Overlawyered, for the cardinal sin of disagreeing with you, and pointing out the rather obvious fact that you're a lobbyist. And while I have a few plaintiff's cases, in a town of 1900 people it's probably not accurate to call me a "plaintiff's lawyer" in the pejorative sense you use the term. I would probably take insurance defense cases if the insurers paid better, simply because I like going to court. If anything, though, the bulk of my income is derived from real estate/small business work. But I realize like any good lobbyist, you've got a theme that anyone who disagrees with you is a "plaintiff's lawyer" and therefore bad, so you've got to stick to the script. I am a little befuddled as to how my original post would be considered "vitriolic", though.

As to the baselessness of my comment above, well, I'll leave that to anyone who has ever read Overlawyered to decide on. I'm sorry you take it so personally that you're a lobbyist. As I've told you before, I don't know why, because you're really quite good at it and you should be proud of that.

I am flattered, however, that you keep track of all the sites I have or have not commented on. I am also a HUGE fan of the NBA, so you might also want to check Truehoop, on ESPN.com's NBA section, for me. I have occasionally commented there and I know you won't want to miss a word of my insight.
1.3.2008 11:12am
r78:
Oh and I should add that Ted Frank publicly disclosed on this site my private e-mail address and my IP address (which he obtained when I left a comment on Overlawyered)

EV was kind enough to delete this information from this site.

So do not dare post a comment over at Overlawyered unless you don't mind you personal information being published by Ted Frank.
1.3.2008 11:56am
Libertarian1 (mail):
As a non attorney almost all of this debate is beyond my expertise. What I have a problem grasping is the names of overlawyered opponents are those who frequently debate here from a liberal perspective.

As a physician every time a patient dies I consider it a failure. Similarly every time a law suit is filed it is a failure. The goal should be to totally eliminate all law suits and or at least try and hold them to a minimum. But proposals to move in that direction are opposed by liberals. (loser pays). Now I know this is how you make your living but how does this benefit society? What is it about being a liberal makes you want more and more law suits? Saying this is how the little man can succeed against the rich and powerful is way too self-serving.
1.3.2008 12:00pm
r78:
Hmmm . . .

Yes, I fully admit that I moderate off-topic trolling comments that can derail comment threads or just play "Argument Clinic" by simply gainsaying without contributing any information.


Other websites post every comment, and let comment threads devolve into name-calling.


Several plaintiffs' firms (including, by one of r78's comments in another thread, r78's) are guilty of legalized extortion:
1.3.2008 12:02pm
Recent JD:
Law professors are complicit in this. You guys keep packing in new students and cranking out new lawyers as fast as you can, anything to keep your six figure salaries, right?
1.3.2008 12:19pm
mrb (mail):
Libertarian1,

I don't think this is a "liberal" or "conservative" issue, inasmuch as those terms are still useful, if they ever were. It would seem most forms of "tort reform" would be anti-conservative, at least in the anti-big government, power to the individual sense. If you're truly a libertarian, the most typical "reform", damage caps, ought to be opposed by you.

No one wants more and more lawsuits. In fact, tort claims are on the decline - what's on the upswing are businesses suing businesses, but there aren't any "reform" movements to limit those, if you'll notice.

I disagree that when one of your patients dies you have failed, for the simple reason that we all die, which doesn't mean you fail every time. However, a lawsuit is in a sense a failure to reach an amicable resolution. But some times it stems from an honest disagreement, and I can't think of a more effective or fair way to have that disagreement resolved than by 12 people without a stake in the outcome. Would it be preferable if the parties found another way? Sure, but obviously they can't.

BTW, I'm not an "opponent" of Overlawyered - it's a site reflecting the position of corporate interests in the debate, which is not necessarily bad. I am an opponent of many of the proposals that side makes to achieve their goals however.

Also, almost every state already has a form of loser pays, via "offers of judgment". I say "almost" because I haven't reviewed all of them, but I would expect it includes every one.
1.3.2008 12:26pm
r78:

But proposals to move in that direction are opposed by liberals. (loser pays). Now I know this is how you make your living but how does this benefit society? What is it about being a liberal makes you want more and more law suits? Saying this is how the little man can succeed against the rich and powerful is way too self-serving.

I don't know if this was addressed to me or not but since it followed my post, I will try to respond.

I agree that in an ideal world, we would not have lawsuits. In that world, doctors would not negligently kill people, priests wouldn't molest school children, drunks wouldn't get behind the wheel of a car, corporations wouldn't sell shoddy or dangerous products, and so forth. But, unfortunately, we don't live in that world. And - lest I be accused of being a simplistic propaganda machine like others - let me say that the vast majority of doctors, hospitals, corporate employee, etc. are honest and ethical and want to do the right thing.

The right to access to courts isn't a liberal versus conservative issue. I am a AUH2O Conservative and believe in personal responsibility. When someone's negligence or recklessness injures other people, they should be held accountable. If we were to criminally prosecute more people, there would be fewer civil suits.
1.3.2008 12:32pm
Libertarian1 (mail):
To mrb and r78. Thank you for your cogent, intelligent, thoughtful replies. As a legal layman on almost a daily basis I read of silly lawsuits that clog up the courts and serve no purpose other than personal vindictiveness or profiteering. We should have a method of punishing those malfactors and prevent future similar actions. To me, again as a layman, loser pays in every case, would go a far way towards that end.

As a physician, I have beneficial therapies removed from my armamentarium because of junk science presented in the courtroom. I hope you or your wives never get pregnancy related morning sickness because the very best therapy has been removed from the market. It was the exact equivalent of wrongfully convicted but here there is no exoneration.

Presidential candidate Edwards made millions successfully collecting after arguments that were based on a false claim totally reputiated by science. But instead of being shunned he is a liberal hero. He stole massively from the rich, gave a little to the poor and kept the rest for himself.

Does this make me an apologist for big business? I own no stock in any of those companies but my sense of justice is upset.
1.3.2008 1:16pm
Ted Frank (www):
Let the record reflect that Matt was banned from commenting on the GruntDoc blog for at least a stretch of time. And that everything else he says here is also false and refuted in other comment threads, but his purpose is trolling, rather than honest discussion, so he repeats accusations he knows to be false.

r78 has never commented on Overlawyered. I got his IP address when he left an exceedingly nasty personal attack on my personal blog, which warns that IP addresses are retained, and he's lucky I didn't post it there: there's no right to throw false personal accusations around anonymously, especially from someone who is perpetually whining about undisclosed associations. r78's claim of being a Goldwater conservative is highly questionable, given his commenting history on this blog and others.

Libertarian1, you may be interested in the regular discussion of medical malpractice litigation and expert evidence at Overlawyered and the Point of Law blog.
1.3.2008 1:42pm
r78:
Libertarian1 -

I agree that there are silly lawsuits. I wish they're weren't and I admit that I feel that way because of selfish reasons - every time I go before a jury with what I believe is a legitimate case I face an uphill battle because most of the people on the jury will biased from the start against plaintiffs because they have heard about all the silly suits.

In reality, the number of civil personal injury suits has beeen declining steadily in California - but you wouldn't know that from reading the paper.

Re Edwards: I don't know the specifics of the cases he has tried. The only one I really read much about is the one where the girl was injured by the swimming pool filter vacuum. If Edwards did win verdicts that were contrary to science, I agree with you that that is wrong. But, at the same time, if the evidence he submitted did convince the jury I have enough respect for the jury system that I don't think I would substitute my judgment for theirs.

I am not saying that the jury system is perfect. I have lost cases that I know in my heart I should have won just because of the bias of 4 jurors on a panel of 12. But that doesn't make me think that we should throw out the baby with the bathwater and get rid of the jury system and, instead, just go with judges to decide these things. Because, as much respect as I have for judges, they are just people, too, and not immune to the prejudices and opinions that we all have.
1.3.2008 1:44pm
Guest user:
Re. 1-800-Flowers
Plaintiff and his lawyer stated clearly about express agreement regaring confidentiality on NBC morning show. That makes it a clear cut case of breach of contract. But overlawyered spin doctors always manage to miss such info. They continue to the evry day recycling of the original false inuendo.
1.3.2008 1:47pm
r78:

r78 has never commented on Overlawyered. I got his IP address when he left an exceedingly nasty personal attack on my personal blog, which warns that IP addresses are retained, and he's lucky I didn't post it there: there's no right to throw false personal accusations around anonymously, especially from someone who is perpetually whining about undisclosed associations. r78's claim of being a Goldwater conservative is highly questionable, given his commenting history on this blog and others.

Note that nowhere in here does Ted Frank deny that he published by IP address and personal information.

And apparently in Frankspeak "exceedingly nasty personal attack" translates to daring to mention Frank's corporate paymasters.

Finally, the post that Frank links to confirms my Goldwater conservative credentials. When discussing "conservatives" in that post, I start by defining that term as it is used in popular political discourse today. True conservatives do not favor torture, rampant government surveillance, corporate welfare, etc. but, unfortunately, "conservatives" as that term is widely used today, do.

But I am glad to see that Mr. Frank is working hard on behalf of his corporate sponsors over at the AEI today. They are getting a good return on their investment.
1.3.2008 1:54pm
Max:
Below are a few links to the kind of snarky insinuation of unethical conduct without evidence Overlawyered traffics in. I didn't spend much time looking - I didn't want to use any examples of lawyers I know - and, really, anybody who goes to the site for a short while will see what I'm talking about. I don't know the details about the below links but the main point is that before he has the facts, Mr. Frank's assumption is that plaintiffs' lawyers are only interested in fees, willing to cheat their clients, and general all around unethical lawyers. Even in these comments, Mr. Frank at first accused a firm of "extortion" and then changed it to "legalized extortion"; both are hyperbolic but the difference between the two is obvious and it is characteristic of Mr. Frank's style for him to use the first one before being called on it.
link 1
link 2
link 3
link 4
By the way, I basically agree with mrb: Mr. Frank and his colleagues are running an advocacy site, a very effective one, which I think mrb correctly analogizes to ATLA's output. I agree with some of the litigation problems that Mr. Frank identifies although, like mrb, I often disagree with the proposed solution. Many plaintiffs' lawyers feel the same way I do about these issues and find the over the top characterization of the plaintiffs' bar found on sites like Overlawyered to be unfair. But my main point is: the Volokh Conspiracy tends to carefully select issues to blog about and then go into depth, almost always reserving final judgment until all of the facts are in and can be digested and weighed. In stark contrast, Overlawyered is an advocacy site, with hit and run descriptions of controversies that fit their thesis and, regrettably, with a fairly constant insinuation of improper conduct directed at the plaintiff's lawyer not just before the facts are in but immediately when the lawsuit is filed.
1.3.2008 2:05pm
David M. Nieporent (www):
No one wants more and more lawsuits. In fact, tort claims are on the decline - what's on the upswing are businesses suing businesses, but there aren't any "reform" movements to limit those, if you'll notice.
MRB, as one of the bloggers on Overlawyered -- though I've been remiss in posting there lately -- I can state that this is simply a canard. We argue for lawsuit reform -- primarily but not exclusively tort reform -- period. We do not distinguish between "businesses suing businesses" and any other type of plaintiffs and defendants. We highlight all ridiculous lawsuits that we come across.
1.3.2008 2:11pm
mrb (mail):
Libertarian1,

If you're a physician, you know that the press doesn't always report medical issues correctly or thoroughly, and you shouldn't be surprised that not all legal issues are reported thoroughly as well. Many of the crazy cases you read about are small claims cases filed by people acting without a lawyer. Would we like to get rid of those? Sure - but we can't get rid of them before they actually file. So the headline gets picked up that so and so asked for $1 billion dollars because of this or that, but the fact the case gets tossed gets no press. There's a woman in my area who calls my office twice a year wanting to sue the President and FBI for wiretapping her phone to get her recipes. One of these days she's going to figure out she can file by herself in small claims and the press will pick it up. The judge will dismiss it shortly thereafter, but you'll only remember that someone filed suit for that and shake your head at our "lawsuit culture". But how would you handle that case differently?

As for Edwards, without seeing the evidence, I have no idea if his cases were legit or not. And if you haven't seen the evidence, you really don't either. It would be like the public deciding if your care was correct based on a newspaper article. And as to how much his client's got, you don't know that either. But you've made a lot of assumptions which you would bristle about if someone made about you with so little facts.

Are all lawsuits good? Legitimate claims? No. No human endeavor is perfect. Is there room for improvement - absolutely, again all human endeavors have room for improvement. But it's not as bad as Ted and the other lobbyists for his side would have you believe, and their solutions are not about making it more "fair", but rather benefiting their clients.

I don't expect you to agree with me completely. But you do need to understand there is no lily white side in this debate. And the propaganda put out by Overlawyered and its ilk is only one side of the issue, and it is just that - propaganda designed to promote the interests of its backers.
1.3.2008 2:14pm
mrb (mail):
David,

I appreciate your willingness to admit that Overlawyered is primarily interested in advancing the cause of limiting what the individual can recover in a negligence claim.

As for your other "highlights", let's just say they are few and far between, and the site's advocacy of reforms in those areas is, shall we say, limited.
1.3.2008 2:18pm
mrb (mail):
"And that everything else he says here is also false and refuted in other comment threads, but his purpose is trolling, rather than honest discussion, so he repeats accusations he knows to be false."

Ted, how can one have an honest discussion with a duck who won't admit he's a duck? First, you have to be honest about what you are, and that's a lobbyist. And there is absolutely nothing wrong with that.
1.3.2008 2:20pm
David M. Nieporent (www):
Plaintiff and his lawyer stated clearly about express agreement regaring confidentiality on NBC morning show. That makes it a clear cut case of breach of contract. But overlawyered spin doctors always manage to miss such info. They continue to the evry day recycling of the original false inuendo.
Assuming arguendo that it is a "clear cut case of breach of contract," the case may have legal merit. But just because a case fits within the outlines of black letter law doesn't mean that it's legitimate as a factual matter. Suing someone because you cheated on your wife and they allowed your wife to find out about it is ridiculous -- and worthy of note -- even if not legally frivolous.


By the way, I basically agree with mrb: Mr. Frank and his colleagues are running an advocacy site, a very effective one, which I think mrb correctly analogizes to ATLA's output. I agree with some of the litigation problems that Mr. Frank identifies although, like mrb, I often disagree with the proposed solution. Many plaintiffs' lawyers feel the same way I do about these issues and find the over the top characterization of the plaintiffs' bar found on sites like Overlawyered to be unfair.
And I'm betting many defendants feel pretty bad about the way plaintiffs' lawyers characterize them; that's life. The question isn't whether it hurts their feelings, but whether it's wrong. We've published responses from attorneys whose work we've criticized before. We've published corrections when we've made factual errors before.
1.3.2008 2:22pm
David M. Nieporent (www):
I appreciate your willingness to admit that Overlawyered is primarily interested in advancing the cause of limiting what the individual can recover in a negligence claim.
If that's an example of your approach to advocacy, well, QED.

I said, of course, nothing of the kind. We're "primarily interested" -- besides in web traffic -- in limiting meritless litigation that burdens society. If you think that most meritless litigation consists of negligence claims filed by individuals, well, maybe you're right, but we have no special interest in that type of case.

(Caveat: I speak for myself, not Ted or Walter.)
1.3.2008 2:26pm
r78:
I am guess that there was an e-mail recently that said:

David,


I'm over at the Volokh conspiracy calling people names, and accusing them of extortion while at the same time arguing that I only delete posts at overlawyered that contain insults and don't add anything to the discussion. People have started to call me on this. Can you come over and help me out?

Thanks,

Ted
1.3.2008 2:28pm
Max:
Yeah, you're right, David, "that's life." Well said - insightful response. And I didn't say anyone had "hurt feelings"; I said they realize that Overlawyered is not balanced, is not intended as such, and is thus unfair. My point, of course, is that your site is not comparable to the Volokh Conspiracy; it's an advocacy site that traffics in innuendo, not a legal analysis site.
1.3.2008 2:29pm
mrb (mail):
" We're "primarily interested" -- besides in web traffic -- in limiting meritless litigation that burdens society."

I guess the key there is what constitutes "meritless litigation" and "burdens society". Because it appears that the society you speak of primarily consists of insurers and corporate America. Despite the fact that businesses file suit at a rate 3x that of individuals, most of the "meritless" claims Overlawyered seems interested in are those filed by individuals.

Like I said, you're a tort reform lobbying site, and that's fine. I don't know why you guys want to pretend to be something else if you truly believe in tort reform.
1.3.2008 2:47pm
mrb (mail):
Also, I'm not sure why you would object to what I said. It's well known that "tort reform", which is what YOU said Overlawyered is primarily interested in, is about limiting the ability of the individual to recover in a negligence claim, either by limiting what they can pay their lawyer or what they can recover as damages.
1.3.2008 2:49pm
David M. Nieporent (www):
I am guess that there was an e-mail recently that said:
You're guessing wrong. Even when I don't have time to blog, I read and comment here regularly.

Yeah, you're right, David, "that's life." Well said - insightful response. And I didn't say anyone had "hurt feelings"; I said they realize that Overlawyered is not balanced, is not intended as such, and is thus unfair. My point, of course, is that your site is not comparable to the Volokh Conspiracy; it's an advocacy site that traffics in innuendo, not a legal analysis site.
Well, I agree that we're not "balanced," but "balance" is a journalistic slogan of dubious merit which is not at all the same thing as being "fair." ("He says 2+2=4, but she says it equals 6.") We do worry about accuracy, but not "balance."

And as for "innuendo," at least our "innuendo" doesn't result in the forced transfer of millions of dollars from deep pockets to the people willing to make the most shameless arguments.
1.3.2008 2:49pm
mrb (mail):
"And as for "innuendo," at least our "innuendo" doesn't result in the forced transfer of millions of dollars from deep pockets to the people willing to make the most shameless arguments."

You're better than this. I hope.
1.3.2008 2:53pm
David M. Nieporent (www):
Also, I'm not sure why you would object to what I said. It's well known that "tort reform", which is what YOU said Overlawyered is primarily interested in, is about limiting the ability of the individual to recover in a negligence claim, either by limiting what they can pay their lawyer or what they can recover as damages.
I object to it because it's not accurate. (Certainly not for me.) Just because something is "well known" doesn't make it actually true. (That's certainly the spin that ATLA puts on it, but that is in fact not the case.) I want to limit suits of dubious merit in order to limit costs imposed on innocent parties and society, and for legitimate suits, I want to limit windfall damages all out of proportion to the injury claimed. I don't care who the plaintiff is or who the defendant is, and I don't care whether it's a negligence suit, a breach of contract, an intentional tort, or a family law action.

(And I don't have any objection to contingency fees, which appears to be what you're referring to when you say "what they can pay their lawyer." The only time I think it's anybody's business how much the attorney makes is in a class action.)


Despite the fact that businesses file suit at a rate 3x that of individuals, most of the "meritless" claims Overlawyered seems interested in are those filed by individuals.
Assuming arguendo that your facts are true -- I've never tallied them -- so what? Are you claiming that this shows bias because you think businesses and individuals are equally likely to file a meritless suit? Is there any reason to believe that?

As for our purpose, if publicizing meritless suits leads to policy changes, great, but we don't "lobby."
1.3.2008 2:59pm
David M. Nieporent (www):
Also, I'm not sure why you would object to what I said. It's well known that "tort reform", which is what YOU said Overlawyered is primarily interested in, is about limiting the ability of the individual to recover in a negligence claim, either by limiting what they can pay their lawyer or what they can recover as damages.
I object to it because it's not accurate. (Certainly not for me.) Just because something is "well known" doesn't make it actually true. (That's certainly the spin that ATLA puts on it, but that is in fact not the case.) I want to limit suits of dubious merit in order to limit costs imposed on innocent parties and society, and for legitimate suits, I want to limit windfall damages all out of proportion to the injury claimed. I don't care who the plaintiff is or who the defendant is, and I don't care whether it's a negligence suit, a breach of contract, an intentional tort, or a family law action.

(And I don't have any objection to contingency fees, which appears to be what you're referring to when you say "what they can pay their lawyer." The only time I think it's anybody's business how much the attorney makes is in a class action.)


Despite the fact that businesses file suit at a rate 3x that of individuals, most of the "meritless" claims Overlawyered seems interested in are those filed by individuals.
Assuming arguendo that your facts are true -- I've never tallied them -- so what? Are you claiming that this shows bias because you think businesses and individuals are equally likely to file a meritless suit? Is there any reason to believe that?

As for our purpose, if publicizing meritless suits leads to policy changes, great, but we don't "lobby."
1.3.2008 2:59pm
mrb (mail):
"Just because something is "well known" doesn't make it actually true. "

You're right, but in this case it actually is true. When "tort reform" legislation, which you said is Overlawyered's primary interest, has an impact on family law cases or contract disputes, you let me know. Until then, let's not play silly games.

"I want to limit suits of dubious merit in order to limit costs imposed on innocent parties and society, and for legitimate suits, I want to limit windfall damages all out of proportion to the injury claimed."

I agree with you wholeheartedly. We just don't agree that the tort reform proposals advanced in most legislatures do that. I am glad to see you have no objection to contingency fees, but most posters and commenters on the site do.

As to your lobbying, I haven't read all your posts individually, so perhaps that's correct. But as a site, that is exactly what Overlawyered is intended to do, lobby for tort reform. And frankly, I can't figure out why you guys are so ashamed of it.
1.3.2008 3:34pm
Libertarian1 (mail):
Once again thank you all for the well reasoned dispassionate debate.

One of these days she's going to figure out she can file by herself in small claims and the press will pick it up. The judge will dismiss it shortly thereafter, but you'll only remember that someone filed suit for that and shake your head at our "lawsuit culture". But how would you handle that case differently?


It is so obvious that I must be missing all the legal ramifications. Judge: Maam, your case is dismissed. Clerk: Please remit court costs of $1000. Don't have it, we will seize your assets.
That is bad because the poor won't be able to file meaningless lawsuits? To me it is a win:win for society.
1.3.2008 3:46pm
mrb (mail):
That's exactly what the judge does. But you don't read about that in the paper.
1.3.2008 3:48pm
Libertarian1 (mail):
As for Edwards, without seeing the evidence, I have no idea if his cases were legit or not. And if you haven't seen the evidence, you really don't either. It would be like the public deciding if your care was correct based on a newspaper article. And as to how much his client's got, you don't know that either. But you've made a lot of assumptions which you would bristle about if someone made about you with so little facts.





"Edwards won at least 94 cases, according to Lawyers Weekly, of which 54 netted more than $1 million each. Normally attorneys take a 40 percent cut of cases that go to trial. In his last year as a practicing attorney, 1997, he reported an adjusted gross income of $11.4 million. Of course, despite their slimy reputation, trial lawyers can be on the side of right. It just happens Edwards wasn't.

Medical malpractice was his specialty, and he reportedly tried more than 60 such cases, winning more than $1 million in over half of those. Most involved Ob/gyns. Indeed, he was so feared, according to the Center for Public Integrity, "that doctors would settle cases for millions of dollars rather than face him at trial."

Edwards' specialty was cerebral palsy, a set of permanent conditions affecting control of movement and posture that usually appear at toddler stage. There is no cure, although stem cell studies in both humans (umbilical cord cells) and rats (neural cells) have produced promising results. More than 10,000 U.S. children are diagnosed with it yearly. Edwards claimed the disease developed because negligent doctors ignored fetal heart monitors indicating the child might not be getting enough air during birth and thus failed to deliver it immediately through cesarean surgery.

Yet Edwards won his cases not because scientific evidence favored him but because of his smooth-talking "trust-me" demeanor -- and heart-wrenching pleas in which he ghoulishly sometimes pretended to be the voice of the unfortunate child crying out for justice.

It's not considered impossible that asphyxiation during birth could cause cerebral palsy; just darned unlikely. United Cerebral Palsy lists about a dozen ways to help prevent the condition. Not one mentions the birthing procedure.

A 2003 study evaluated almost 1,000 life births to see if cerebral palsy or other problems could by affected by type of birth. Conclusion: "Delivery mode (whether vaginal or cesarean delivery) was not associated with any of the outcomes that were evaluated."

Months earlier, another study observed that cerebral palsy rates have shown "no change over 30 years" despite fetal monitoring and a huge increase in the number of C-sections. Further, "The prevalence of cerebral palsy is the same or lower in underdeveloped countries than in developed nations," even though "emergency cesarean delivery based on electronic monitor data is limited or absent."

Now here's the horrible kicker: A Swedish report released in December found that emergency cesarean delivery increased the odds of cerebral palsy by a statistically significant 80 percent. It's bad for the mother, too. Another 2006 study, in the journal Obstetrics &Gynecology, found that moms with cesareans had more than three-and-a-half times the chance of dying shortly after childbirth than those who had vaginal delivery.

"Some of the increased risks for the mother include possible infection of the uterus and nearby pelvic organs; increased bleeding; blood clots in the legs, pelvic organs and sometimes the lungs, says the March of Dimes. Further, cesarean birth "is more painful, is more expensive, and takes longer to recover from than a vaginal birth," says the group.

But scientific reality is but a minor hurdle to slick plaintiffs lawyers like Edwards. Insurance companies fork over massive payments to plaintiffs and their lawyers, then pass the costs on to doctors in malpractice fees. In one state, annual Ob/gyn malpractice premiums have reached $250,000."
1.3.2008 3:55pm
mrb (mail):
What I don't ever see from the critiques of Edwards' cases are that the people criticizing actually saw the evidence. There is no study out there that says CP cannot be caused by negligence, just that it's rare. If Edwards handled 20 CP cases out of a million people with it, then that's pretty darn rare, wouldn't you say?

Nor do I ever see how often Edwards advocated a C-section would have been the right thing to do in his cases. Or how he would be responsible for an explosion in C-sections when no one seems to know anything about the evidence in his cases. Particularly when many of his cases would have resulted in confidential settlements.

Insurance companies do pay out for the injuries their insureds cause. Isn't that why we buy insurance? Is it an inherently bad thing because they do pay for the risks they cover sometimes? Which state has average annual OB-GYN premiums of $250,000?

I keep reading all these claims, but the factual basis behind them is never shown. I'm not sure how one can demonize Edwards about cases where they didn't see the evidence. It would be like demonizing all surgeons because you heard about one who operated drunk.
1.3.2008 4:06pm
r78:

I want to limit windfall damages all out of proportion to the injury claimed. I don't care who the plaintiff is or who the defendant is, and I don't care whether it's a negligence suit, a breach of contract, an intentional tort, or a family law action.

Windfall "damages" in family law actions? Was this written by a lawyer?

It is odd, indeed, that Overlawyered contributors squeal so much when anyone points out the fact that Overlawyered is a corporate funded tort-reform site. Nieporent above states:

If you think that most meritless litigation consists of negligence claims filed by individuals, well, maybe you're right, but we have no special interest in that type of case.
1.3.2008 4:07pm
r78:
oops

Nieporent above states:

If you think that most meritless litigation consists of negligence claims filed by individuals, well, maybe you're right, but we have no special interest in that type of case.

All anyone needs to do to disprove that statement is just scroll through the past 20 or 30 posts over at Overlawyered. There are several posts about personal injury actions and two or three carping about John Edwards. To suggest that is is just some odd coincidence that so many of their posts parrot the standard "lawsuits are out of control" and the "libruls are coming to take you money" is just a coincidence is silly.

I don't see why they're ashamed of being lobbyists and corporate mouthpieces. The pay is good for those occupations. ATLA - or whatever it is called - promotes the interests of its members. Overlawyered (and several other sites) promote the interests of corporations and insurers. Why lie about it?
1.3.2008 4:12pm
David M. Nieporent (www):
Windfall "damages" in family law actions? Was this written by a lawyer?
My statement was. Was your statement written by an honest person, or a person who took parts of two separate sentences out of a longer paragraph and mashed them together into a new sentence?

It is odd, indeed, that Overlawyered contributors squeal so much when anyone points out the fact that Overlawyered is a corporate funded tort-reform site. Nieporent above states:
Overlawyered is not "funded" by anybody, "corporate" or otherwise, unless you count the BlogAds at the side of the page.

What's odd is that you're so unable to rebut any of the things we post that you spend all your time engaging in ad hominems.

To suggest that is is just some odd coincidence that so many of their posts parrot the standard "lawsuits are out of control" and the "libruls are coming to take you money" is just a coincidence is silly.
We don't "parrot" the "lawsuits are out of control" line. (Perhaps other people "parrot" us?)

Edwards is a trial lawyer running to the far left in this campaign. That's not a coincidence, but it has nothing to do with the site itself. We've criticized Trent Lott. We've criticized Rudy Giuliani for his gun litigation and Michael Bloomberg for the same, plus for his general nanny-statism. And Mike Huckabee for his. It happens that the trial lawyer lobby is generally heavily pro-Democrat, but there's nothing we can do about that. You seem to want the phony kind of balance the MSM practices, in which if we say something bad about someone who happens to be a Democrat, we also have to find a Republican to criticize. But we cover an issue. If one party is more right than the other on that issue, well, then, we're going to criticize one party more than another.


I don't see why they're ashamed of being lobbyists and corporate mouthpieces. The pay is good for those occupations. ATLA - or whatever it is called - promotes the interests of its members. Overlawyered (and several other sites) promote the interests of corporations and insurers. Why lie about it?
Because it's wrong -- we don't get paid by anybody to do Overlawyered -- and it's also economically illiterate. Since corporations and insurers aren't magical money trees, the "interests of corporations and insurers" are the interests of consumers.

It doesn't benefit consumers when a college student sues a bed manufacturer because he fell out of a bunk bed when his alarm clock woke him up. It certainly doesn't benefit consumers when it takes seven years for the courts to reject this lawsuit.
1.3.2008 4:29pm
mrb (mail):
Nor does it benefit consumers when Ken Lay, Fastow, etc. misstate earnings of their company costing investors millions in cases that take some 7 years to resolve. But when people enact legislation designed to prevent that Overlawyered lobbies against that.

Perhaps the lesson is that it's a bad idea to try and promulgate wholesale changes in the law based on the actions of a few individuals? Whether they be drunk college students or CEOs of multinational corporations.
1.3.2008 4:43pm
David M. Nieporent (www):
Nor does it benefit consumers when Ken Lay, Fastow, etc. misstate earnings of their company costing investors millions in cases that take some 7 years to resolve. But when people enact legislation designed to prevent that Overlawyered lobbies against that.
Nor does it benefit "corporations and insurers" if Lay and Fastow do that, so obviously that's a pretty bad example if the thesis is that we're serving the actions of those evil groups.

(And perhaps the mere fact that legislation is (purportedly) intended to prevent a particular problem does not mean that it actually does so, or that it's a cost-effective way of doing so?)
Perhaps the lesson is that it's a bad idea to try and promulgate wholesale changes in the law based on the actions of a few individuals? Whether they be drunk college students or CEOs of multinational corporations.
Sure. That's why we compile reports about lawsuits filed by many people, rather than "a few individuals." And why we don't advocate -- we can't promulgate laws -- "wholesale changes" in any law. It's not as if, e.g., loser pays is some sort of weird idea plucked from thin air by some columnist for the Wall Street Journal; it's a common feature of many countries' legal systems.
1.3.2008 5:02pm
mrb (mail):
"Nor does it benefit "corporations and insurers" if Lay and Fastow do that, so obviously that's a pretty bad example if the thesis is that we're serving the actions of those evil groups."

That's not my thesis, so if you say so. I find nothing inherently evil about corporations and insurers. I have several businesses that are incorporated.

"That's why we compile reports about lawsuits filed by many people, rather than "a few individuals."

Even the "many people" you compile "reports" on represent a tiny percentage of the suits filed. It's like making policy recommendations based on the corporate wrongdoings highlighted by Mother Jones. You're right, loser pays isn't novel (although it's also not as widespread in those countries as is often implied), but we already have it in most, if not all, states, so I'm not sure why you're even hanging on to that.

We both know that the centerpiece of almost every tort reform effort is damage caps. Pretending otherwise is silly.
1.3.2008 5:13pm
r78:
Niporent - I reproduced your quote verbatim. Don't blame me if you didn't write what you meant to write.

Overlawyered is not "funded" by anybody, "corporate" or otherwise, unless you count the BlogAds at the side of the page.

I don't know who specifically pays for the servers for Overlawyered. But it is just that was started, I believe, by Walter Olsen of the Manhattan Institute. According to Wikipedia "The Manhattan Institute received $19,470,416 in grants from 1985-2005, from foundations such as the Koch Family Foundations, the John M. Olin Foundation, Inc., the Lynde and Harry Bradley Foundation, the Scaife Foundations, and the Smith Richardson Foundation. [10] The Manhattan Institute does not disclose its corporate funding, but the Capital Research Center listed its contributors as Bristol-Myers Squibb, Exxon Mobil, Chase Manhattan, Cigna, Sprint, Reliant Energy, Lincoln Financial Group Foundation, and Merill Lynch."

Ted Frank is or was an employees of the American Enterprise Institute. According to Wikipedia: AEI has received more than $30 million (combined) in funding from sources including:[citation needed]

* The Lynde and Harry Bradley Foundation, Inc.
* Castle Rock Foundation
* Coors Brewing Company
* Earhart Foundation
* ExxonMobil
* JM Foundation
* Microsoft Corporation [1]
* Philip M. McKenna Foundation, Inc.
* John M. Olin Foundation, Inc.
* Rockefeller Brothers Fund[32]
* Sarah Scaife Foundation
* Scaife Family Foundation
* Smith Richardson Foundation

I don't know what portion of that funding trickles down to Mr. Frank but he did recently publicly state on one of his blogs that he became a millionaire on paper in 2007 for some period of time. Cheers to him.


But we cover an issue. If one party is more right than the other on that issue, well, then, we're going to criticize one party more than another.

I guess Overlawyered is just extra-lucky that the "right" party just so happens to be the one who provides the funding for its writers. But, that could change at any moment, right?

Because it's wrong -- we don't get paid by anybody to do Overlawyered -- and it's also economically illiterate. Since corporations and insurers aren't magical money trees, the "interests of corporations and insurers" are the interests of consumers.

What a joke. So in you believe that there is no action that a corporation or insurer could possibly take that would primarily benefit its executives and shareholders at the expense of consumers generally? That is just an economic impossibility in your mind. That is your idea of being economically literate?

Let's put this in concrete terms. Have you heard of Enron? Who do you think benefited from their fraudulent schemes? Was it a) Enron executives, b) Enron shareholders who dumped the stock before it tanked, or c) consumers? And bonus points if you can identify what corporate funded think tank had Enron CEO Kenneth Lay on its board of trustees. (Okay, I'll give that one to you, it was the American Enterprise Institute)

Oh wait, is that an ad homeniem? Pointing out that a funder and board member of AEI was a swindler?
1.3.2008 6:33pm
Max:
We're so far into the weeds here primarily because neither Mr. Nieporent or Mr. Frank are interested in intellectual honesty or actually rebutting the points made. Suffice to say, I think everyone knows that I wasn't saying there had to be some artificial ideological balance on Overlawyered, a site I think is hackish, any more than I think there ought to be on The Volokh Conspiracy, a site I think is excellent. What I was saying - and what is demonstrated by the links I posted and a cursory perusal of the site - is that the contributors to Overlawyered engage in constant hyperbolic attacks on the plaintiffs' bar whether or not they know the facts in the particular case they are commenting on. They are guided by a simple principle: plaintiffs' lawyers are greedy and unethical. They know this to be true; hence, no need to deal with actual evidence. Neither person here has contradicted this at all and in fact, their hyperventilating and attacks on the other posters here as extortionists etc. has only confirmed it.

And for the record, I don't like people who engage in the same sort of un-nuanced vitriol from the opposing side, which is why I am appalled by the Edwards campaign and his blame everything on corporations shtick.
1.3.2008 6:52pm
Robb Shecter (denk) (mail):
Addendum: Why I initially questioned the Overlawyered posts.

As a 1L, I had Civ Pro 1 last semester, which used the case book Civil Procedure, Sixth Ed. by Stephen C. Yeazell. (I really enjoyed it; Clearly written, and lots of practice "hypos".) I remembered reading this:


In tort cases, by a very narrow margin (51 percent to 49 percent) defendants win, the plaintiff recovering nothing. [...] When plaintiffs win, how much do they recover? News accounts suggest fabulous sums; reality is different. The median recovery in tort cases was $31,000... In contract cases, the median plaintiff's judgement was a bit higher, $37,000. (p. 263)


In no way do I think that I'm an expert of this subject matter, but some information in the case book does seem to contradict the assertions made by Overlawyered, I Am Lawsuit Abuse, etc. And so when I saw those posts on Overlawyered, my natural instinct was to look for the data behind the claims. And as I described above, I was unsuccessful in my search.

But back to Yeazell's book. Section V, Incentives to Litigate (starting at p.259) was really interesting, and dead-on-target to this discussion. This section breaks with common case book form, and presents data, bar charts and graphs on a variety of topics, such as Civil Litigation in U.S. Courts, 1984-2000. Here's another relevant quote from the section:


Comparative studies of legal systems suggest that, roughly speaking civil litigation correlates with people and with economic activity: All things being equal more people and more econonomic activity means more civil litigation. One would therefore expect that the U.S., with a large population and the world's largest Gross Domestic Product, would have a relatively high, and growing, rate of litigation. It does: Over the past two decades, the "civil litigation rate" has hovered around 20 - one civil lawsuit filed per year per 20 persons. Perhaps more striking is that U.S. litigation rates have grown far more slowly than the economy, just slightly outpacing the rate of population growth. (Emphasis mine.) (p.261.)


NB: My point here isn't to show that "tort reform is unnecessary", but rather to raise the level of discussion - to look for real evidence, rather than headline-grabbing anecdotes.
1.3.2008 7:19pm
David M. Nieporent (www):
In tort cases, by a very narrow margin (51 percent to 49 percent) defendants win, the plaintiff recovering nothing. [...] When plaintiffs win, how much do they recover? News accounts suggest fabulous sums; reality is different. The median recovery in tort cases was $31,000.
I recognize that you're quoting a book, but it's not clear to me why you think the median, rather than mean, is meaningful here. If there are a thousand lawsuits where the plaintiffs recover a thousand dollars, and ten lawsuits where the plaintiffs recover ten million dollars, the median is a thousand dollars, but that doesn't tell you much about the overall impact of the litigation.
Perhaps more striking is that U.S. litigation rates have grown far more slowly than the economy, just slightly outpacing the rate of population growth.
Again, I recognize you're quoting a book, but (a) it's not clear to me why 1984 is the right baseline, (b) it's not clear to me how the statistic counts class action suits in "litigation rates," and (c) it's not clear to me why litigation growing faster than the population is supposed to be a point against Overlawyered.
1.3.2008 9:23pm
mrb (mail):
Actually, it's probably more useful to know if it's growing faster than the population of individuals and the number of legal entities which can file suit. Particularly given the number of LLCs which have proliferated in the decade or so that entity has existed.
1.3.2008 9:29pm
mrb (mail):
By the way, what is the mean? And is that actual recovery or is it verdicts at trial? After remittur? That would be interesting to know as well.

Unfortunately, the statistics on this issue are rarely comprehensive, which allows people to pick and choose what they like from those stats. For example, David would rightly question why 1984, and I'd guess it's because they didn't keep the stat before then. Likewise, during the med mal "crisis", Overlawyered liked to mention how much insurers had lost since 2001. Why 2001? Because the 90s had been very profitable for insurers.
1.3.2008 9:34pm
David M. Nieporent (www):
Niporent - I reproduced your quote verbatim. Don't blame me if you didn't write what you meant to write.
I'm not going to play your games. You doctored my quote, claiming I said that there were windfalls in family law.

I don't know who specifically pays for the servers for Overlawyered.
Well, then, it's pretty foolish of you to talk about it, isn't it?

According to Wikipedia "The Manhattan Institute received $19,470,416 in grants from 1985-2005, from foundations such as the Koch Family Foundations, the John M. Olin Foundation, Inc., the Lynde and Harry Bradley Foundation, the Scaife Foundations, and the Smith Richardson Foundation.
None of which, of course, are corporations. (And that's less than a million per year, not exactly a huge amount.) The breakdown can be seen here. And what's your point? Overlawyered is not run by the Manhattan Institute.

I guess Overlawyered is just extra-lucky that the "right" party just so happens to be the one who provides the funding for its writers. But, that could change at any moment, right?
No party provides any funding for any of us. And your comment would be incoherent if it weren't false. Why would it be "lucky"? Whatever groups of people support tort reform would support us.
1.3.2008 10:08pm
David M. Nieporent (www):
What I was saying - and what is demonstrated by the links I posted and a cursory perusal of the site - is that the contributors to Overlawyered engage in constant hyperbolic attacks on the plaintiffs' bar whether or not they know the facts in the particular case they are commenting on. They are guided by a simple principle: plaintiffs' lawyers are greedy and unethical. They know this to be true; hence, no need to deal with actual evidence.
Do we 'attack' the plaintiff's bar? I would say criticize rather than attack, but YMMV. Do we know the facts of the cases we comment on? I check PACER or the local courts when the filings are available online, but they're not always; in those cases I rely upon media coverage. If the media botches a story, there's not much I can do about it, except publish a correction if the error is pointed out to me.

I do not "assume" that plaintiff's lawyers are greedy or unethical; when plaintiff's lawyers do something greedy or unethical, I point it out.
1.3.2008 10:12pm
Libertarian1 (mail):
In tort cases, by a very narrow margin (51 percent to 49 percent) defendants win, the plaintiff recovering nothing.



I guess you have to be a lawyer to read that and not get upset. In tort cases 51% of the time the decision is in favor of the defendant so it only costs him tens of thousands of dollars in legal fees (lawyers win!!) instead of additional millions in judgments. And you have a difficult time understanding why in other parts of the civilized world -loser pays.
1.3.2008 11:04pm
Robb Shecter (denk) (mail):
David - these are good questions - I don't know the specifics about why 1984 might be a starting date for that particular data.

And, from my moderate exposure to science and statistics, the median seems to often be preferred to the mean as a measure of central tendency. (And there are many others.)

For example, national home prices are often (usually?) reported as "median home prices." This probably because, for that data set - a large number of data points clustered around some areas, but with some extremes at one end - the median gives a more accurate impression.

I think it could reasonably be argued that the median is the appropriate measure for tort costs for exactly the same reasons as those for home prices. But to really know if it's the best, we'd have to know other measures; standard deviation form the mean, etc.
1.3.2008 11:12pm
mrb (mail):
"In tort cases 51% of the time the decision is in favor of the defendant so it only costs him tens of thousands of dollars in legal fees (lawyers win!!) instead of additional millions in judgments. And you have a difficult time understanding why in other parts of the civilized world -loser pays."

Tens of thousands? Really? I can't imagine the average car wreck case, which I believe is the majority of individual tort cases, costs tens of thousands. I'd be interested to know the actual cost. And generally, it doesn't cost the individual defendant anything but his deductible. It costs his insurance company. And being in the insurance business has been, with the exception of the hurricane years, extremely profitable.

Again, we have loser pays, and it's not applied to every case in other parts of the "civilized world". By the way, simply saying they do it elsewhere doesn't mean much. Other parts of the civilized world have universal health care. Does that mean it's a good thing?
1.3.2008 11:16pm
mrb (mail):
"If the media botches a story, there's not much I can do about it, except publish a correction if the error is pointed out to me."

That's not exactly true David. When the media "botches", or you disagree with its premise, a story which reflects negatively on corporate America or negatively on tort reform efforts, you usually do a thorough investigation and report multiple ways to debunk it. That intellectual rigor is not as prevalent on Overlawyered with reports that fit into the site's tort reform mission.

Again, I fail to understand why you don't want to acknowledge that Overlawyered is a tort reform lobbying site. It's very good at doing that.
1.3.2008 11:21pm
r78:

I'm not going to play your games. You doctored my quote

Actually,I reproduced it word for word so there is no game to play. I guess now you realize that it was silly to imply that there were windfalls in family law. That you childishly attempt to argue that I doctored anything just reveals your, umm, approach to truth.

None of which, of course, are corporations.

I notice that you omit any discussion at all of AEI and its corporate funders. Why is that?


(And that's less than a million per year, not exactly a huge amount.)

My contention is that the opinions of the heavyweights at Overlawyered (Olsen and Frank) are bought and paid for by their "think tank" employers. You seem to be implying that they are cheap dates, too. So be it.


I wrote:


I guess Overlawyered is just extra-lucky that the "right" party just so happens to be the one who provides the funding for its writers. But, that could change at any moment, right?

You responded:

No party provides any funding for any of us. And your comment would be incoherent if it weren't false.

I understand that you have not (yet) landed a "scholar" position at AEI or the Manhattan Institute. But the main authors over at Overlawyered are employed by those organizations. Why you believe that they are not "funded" is puzzling.

I note that you have abandoned without comment your previous inane argument that what's good for corporations must be good for consumers. Don't worry, nobody noticed. Nobody else is reading this thread at this point.
1.4.2008 12:36am
r78:
Here is the Niporent approach to argument in a nutshell:

I wrote:

The Manhattan Institute received $19,470,416 in grants from 1985-2005, from foundations such as the Koch Family Foundations, the John M. Olin Foundation, Inc., the Lynde and Harry Bradley Foundation, the Scaife Foundations, and the Smith Richardson Foundation. [10] The Manhattan Institute does not disclose its corporate funding, but the Capital Research Center listed its contributors as Bristol-Myers Squibb, Exxon Mobil, Chase Manhattan, Cigna, Sprint, Reliant Energy, Lincoln Financial Group Foundation, and Merill Lynch.

You then posted the following and the portion you quote from me is shown in italics

According to Wikipedia "The Manhattan Institute received $19,470,416 in grants from 1985-2005, from foundations such as the Koch Family Foundations, the John M. Olin Foundation, Inc., the Lynde and Harry Bradley Foundation, the Scaife Foundations, and the Smith Richardson Foundation.

None of which, of course, are corporations.

Did you just not see the rest of my paragraph?

If you hope to land a job at a corporate funded think tank, you will probably want to work on being less obviously dishonest.
1.4.2008 12:48am
David M. Nieporent (www):
I notice that you omit any discussion at all of AEI and its corporate funders. Why is that?
Because I had already debunked half of your claims -- with an actual link, rather than Wikipedia -- and didn't feel the need to do it again. (And AEI has even less to do with Overlawyered than the M.I. does. But since you're too lazy to do any reseaarch, here's the relevant data for AEI. Only about 1/5th of the money comes from "corporate funders.")

Did you just not see the rest of my paragraph?
You mean the part without any data in it? Yeah, I saw it. Since the lack of data meant that it couldn't support your point, it really wasn't worth responding to.

I understand that you have not (yet) landed a "scholar" position at AEI or the Manhattan Institute. But the main authors over at Overlawyered are employed by those organizations. Why you believe that they are not "funded" is puzzling.
The main authors at the Volokh Conspiracy are employed by various law schools. Why don't you go look up the funding of those institutions and then claim that the universities' sources of money are "funding" the Volokh Conspiracy?
1.4.2008 7:52am
Ted Frank (www):
I wrote for Overlawyered years before I worked at AEI. AEI doesn't pay me to write at Overlawyered, and would be quite happy if I never posted there again and used the time to write something on dead trees instead.

Responding to Max's specific allegations, which are the only specific allegations in this thread:

* I'm curious what Max finds objectionable about this post. The issue of the high cost of attorney advertising on Google without any competition for reducing contingent fees (on cases that are not remotely contingent) has been commented upon by ethics scholars such as Lester Brickman and by the New York Times. This is a case where Overlawyered made news.

* My post on thimerosal is factually and scientifically accurate. The plaintiffs' lawyers claiming vaccines cause autism are relying on junk science, and thousands of doctors, dozens of science bloggers, and the CDC will tell you the same thing.

* Are you claiming that the intrusiveness of discovery is not a real privacy issue? I've personally been subpoenaed to turn over a hard drive. A California court ordered a corporation--who promised privacy to its customers--to turn that list over to an indicted law firm so that law firm could harangue its customers against their will to troll for clients. I found that opinion problematic, as did a practicing attorney, and I linked to that post.

* Research found that an attorney who brought a publicity-seeking bogus claim against a celebrity had previously brought a publicity-seeking bogus claim against another celebrity. I blogged about it, when no one else had noted the issue, and noted a potential ethical problem with the publicity-seeking.

Max's position seems to be that raising questions about ethics is "innuendo." It's not: it's raising questions about ethics.

If a gangster walks into your store, and says he wants a $50,000 not to cause $100,000 of physical damage, it's extortion.

If an attorney walks into your store, and says he will bring a meritless lawsuit that will cost you $100,000 to defend unless you pay him a $50,000 settlement, it's legal. But the economics are exactly the same as in the case of the extortion. I have no qualms about identifying this public policy problem as "legalized extortion," and it costs American investors billions of dollars every year.
1.4.2008 8:30am
r78:

Because I had already debunked half of your claims -- with an actual link, rather than Wikipedia -- and didn't feel the need to do it again.

What a hoot. The link you provided states that 17% of the Manhattan Institute funding comes directly from corporations. So you disproved by claim that corporations fund them by linking to a site that says explicitly the opposite.

Try again.


I wrote for Overlawyered years before I worked at AEI. AEI doesn't pay me to write at Overlawyered, and would be quite happy if I never posted there again and used the time to write something on dead trees instead.

Oh come now. The core value of the *Ted Frank* brand is propogation of the corporate tort reform viewpoint. Your only value to them is spreading the gospel that plaintiffs are eveeeeeel. AEI doesn't make widgets, they are a megaphone for corporations and other moneyed interests.

So, feel free to spin as much as you want about how Overlawyered just has nothing at all to do with your work for AEI but saying so doesn't make it so.
1.4.2008 12:12pm
r78:

The main authors at the Volokh Conspiracy are employed by various law schools. Why don't you go look up the funding of those institutions and then claim that the universities' sources of money are "funding" the Volokh Conspiracy?

This is your best argument yet.

So you are equating the AEI with, say, UCLA? If Mr. Volokh woke up tomorrow and decided what this America really needs is more government regulation, a steeply progressive income tax and 7 brides for every man - he would still have a job at UCLA (assuming these views didn't prevent him from teaching his students.)

If Ted Frank decided tomorrow that corporations were trying to stack the legal system against common folks and decided to start writing about that on Overlawyered - he would be tossed out of AEI by the afternoon. His only usefulness to AEI is his willingness to advance their message.

I mean, really, who do you think you are fooling?
1.4.2008 12:20pm
David M. Nieporent (www):
What a hoot. The link you provided states that 17% of the Manhattan Institute funding comes directly from corporations. So you disproved by claim that corporations fund them by linking to a site that says
... that 83% of their funding doesn't come from corporations. You're really not very good at this, are you? I wouldn't let your clients see this thread.

Oh come now. The core value of the *Ted Frank* brand
I have the t-shirt and sneakers, but not yet the sunglasses or action figure. I was hoping to receive them for Chanukah, but no such luck.

This is your best argument yet.
Thank you.
1.4.2008 12:40pm
r78:
So, in your mind, 17% equals "none of which are corporations"?

Oh and it seems that you have now become sufficiently embarassed by your argument that the AEI is really no different than UCLA line of reasoning. Shall we just add that to the heap of silly arguments that you have abandoned?
1.4.2008 12:56pm
s-class:
Or do you really want to contend that AEI would happily continue to employ Mr. Frank if his views didn't match those of the corporate funders?

That really is the issue isn't it and I guess I can see why you made your lame-ass attempt at humor - you just didn't have any other come back.

Here's a suggestion - steal one from the Chimp's playbook and decline to "speculate on hypotheticals."
1.4.2008 12:59pm
David M. Nieporent (www):
So, in your mind, 17% equals "none of which are corporations"?
No. Are you really this bad at following a conversation? Don't ever try to take a deposition; you'll get confused at the "please state your full name" part.

You said that that Overlawyered was corporate funded. I pointed out that this was false. You implicitly admitted you didn't know what you were talking about, but instead of slinking off, tried to divert attention by going off onto some tangent about the Manhattan Institute and AEI. You then claimed that the M.I. was corporate funded, and cited as evidence a wikipedia entry which said that it got millions from some foundations and that some website said that some corporations were contributors. So I explained to you that the only bit of data you provided was not actually about corporations at all. I was hinting to you that this data point was irrelevant to the claim you made, but I guess you weren't able to figure that out. Then I pointed out to the actual data, showing that only 17% of its receipts were from corporations, thus falsifying the description of it as "corporate funded."

As for the rest, you can rest assured that my decision not to respond to every one of your bizarre rants is merely evidence of fatigue, not that I've conceded your point.


Or do you really want to contend that AEI would happily continue to employ Mr. Frank if his views didn't match those of the corporate funders?
I am not privy to Ted's employment arrangement with AEI, but I would assume that, as with anybody in the real world who isn't tenured or protected by a union, that said employment is conditioned on him continuing to produce high quality scholarship. None of which speculation has anything to do with Overlawyered, of course, which is a private website, not a product of AEI.


And, like Ted, I find it ironic that the people who are quickest to condemn hide behind anonymity.
1.4.2008 1:38pm
David M. Nieporent (www):
So, in your mind, 17% equals "none of which are corporations"?
No. Are you really this bad at following a conversation? Don't ever try to take a deposition; you'll get confused at the "please state your full name" part.

You said that that Overlawyered was corporate funded. I pointed out that this was false. You implicitly admitted you didn't know what you were talking about, but instead of slinking off, tried to divert attention by going off onto some tangent about the Manhattan Institute and AEI. You then claimed that the M.I. was corporate funded, and cited as evidence a wikipedia entry which said that it got millions from some foundations and that some website said that some corporations were contributors. So I explained to you that the only bit of data you provided was not actually about corporations at all. I was hinting to you that this data point was irrelevant to the claim you made, but I guess you weren't able to figure that out. Then I pointed out to the actual data, showing that only 17% of its receipts were from corporations, thus falsifying the description of it as "corporate funded."

As for the rest, you can rest assured that my decision not to respond to every one of your bizarre rants is merely evidence of fatigue, not that I've conceded your point.


Or do you really want to contend that AEI would happily continue to employ Mr. Frank if his views didn't match those of the corporate funders?
I am not privy to Ted's employment arrangement with AEI, but I would assume that, as with anybody in the real world who isn't tenured or protected by a union, that said employment is conditioned on him continuing to produce high quality scholarship. None of which speculation has anything to do with Overlawyered, of course, which is a private website, not a product of AEI.


And, like Ted, I find it ironic that the people who are quickest to condemn hide behind anonymity.
1.4.2008 1:38pm
r78:

No. Are you really this bad at following a conversation? Don't ever try to take a deposition; you'll get confused at the "please state your full name" part.

Thank you for your advice about the practice of law. Perhaps someday, if I take it to heart, I will achieve the level of success you have.



You said that that Overlawyered was corporate funded. I pointed out that this was false.

It is operated by two people who are on the payrolls of corporate funded "think tanks". You can squeal all you want, but that is the simple truth.

You implicitly admitted you didn't know what you were talking about, but instead of slinking off, tried to divert attention by going off onto some tangent about the Manhattan Institute and AEI. You then claimed that the M.I. was corporate funded, and cited as evidence a wikipedia entry which said that it got millions from some foundations and that some website said that some corporations were contributors. So I explained to you that the only bit of data you provided was not actually about corporations at all. I was hinting to you that this data point was irrelevant to the claim you made, but I guess you weren't able to figure that out. Then I pointed out to the actual data, showing that only 17% of its receipts were from corporations, thus falsifying the description of it as "corporate funded."

As for the rest, you can rest assured that my decision not to respond to every one of your bizarre rants is merely evidence of fatigue, not that I've conceded your point.


Or do you really want to contend that AEI would happily continue to employ Mr. Frank if his views didn't match those of the corporate funders?

I am not privy to Ted's employment arrangement with AEI, but I would assume that, as with anybody in the real world who isn't tenured or protected by a union, that said employment is conditioned on him continuing to produce high quality scholarship. None of which speculation has anything to do with Overlawyered, of course, which is a private website, not a product of AEI.


And, like Ted, I find it ironic that the people who are quickest to condemn hide behind anonymity.
1.4.2008 2:20pm
r78:
oops



You implicitly admitted you didn't know what you were talking about, but instead of slinking off, tried to divert attention by going off onto some tangent about the Manhattan Institute and AEI. You then claimed that the M.I. was corporate funded, and cited as evidence a wikipedia entry which said that it got millions from some foundations and that some website said that some corporations were contributors. So I explained to you that the only bit of data you provided was not actually about corporations at all. I was hinting to you that this data point was irrelevant to the claim you made, but I guess you weren't able to figure that out. Then I pointed out to the actual data, showing that only 17% of its receipts were from corporations, thus falsifying the description of it as "corporate funded."


Shorter Niporent: nevermind what I said about those entities not being funded by corporations.


Or do you really want to contend that AEI would happily continue to employ Mr. Frank if his views didn't match those of the corporate funders?

I am not privy to Ted's employment arrangement with AEI, but I would assume that, as with anybody in the real world who isn't tenured or protected by a union, that said employment is conditioned on him continuing to produce high quality scholarship.

"High quality scholarship"? I wonder what sort of education one has to receive to imagine that the AEI produces "high quality scholarship"?

And, like Ted, I find it ironic that the people who are quickest to condemn hide behind anonymity.

That goes to show you don't know what the word "ironic" means. But, in any event, I don't hold myself out as a "high quality scholar" so who I am is pretty irrelevant. Nice try though.
1.4.2008 2:28pm
r78:

I am not privy to Ted's employment arrangement with AEI,

Perhaps you should be if you are going to scurry around to other websites doing his janitorial work.
1.4.2008 2:29pm
David M. Nieporent (www):
It is operated by two people who are on the payrolls of corporate funded "think tanks". You can squeal all you want, but that is the simple truth.
It's operated by one person, who in his day job works for a think tank which gets a small percentage of its budget from corporations. That's the simple truth. The rest is dishonest trial lawyer spin.
1.4.2008 3:20pm
r78:
Did AEI produce any of that "high quality scholarship" about the crimes of its trustee Ken Lay?
1.4.2008 3:52pm
Max:
Mr. Frank, regarding your response to my posts: I think that it's pretty clear what our respective positions are and anyone who is interested (that being precisely zero people give or take 3) can read the posts, follow the links, and make up their own minds. And I'm not interested - as I said before - in debating the specifics of any of the posts because I don't know the details, don't have time to research them and don't think it's relevant to my point. I conceded earlier that I agree that some of the issues in the litigation system that you and your colleagues identify exist; I disagree with some, disagree with the vehemence of many of your positions, and disagree with the solution in most cases. But those are disagreements over public policy and not what I'm discussing at all. I disagree with things I read on the Volokh Conspiracy too but I rarely disagree with the tone because they rarely include hyperbolic, over the top, insults. But you've said you're interested in what I find objectionable about the posts so, briefly, here goes:

-"Multiple commenters have drawn the connection between the fact that a click on an ad merits a $54 charge and the fact that a distasteful ambulance-chaser will be paying the $54 charge to suggest an obvious strategy to penalize ambulance chasers." Every lawyer who represents clients with asbestos-induced mesothelioma is an ambulance-chaser? Have you ever met anyone with mesothelioma? Have you ever sat in their living room while they struggled to talk while their wife sits there with tears in her eyes? I have and you would have to be a heartless scum of the earth bastard to be a lawyer who was only concerned with your own fee in representing these people. And, to my knowledge, I have never met such a lawyer. I'm not saying they don't exist, but to gratuitously insult them all is hackish.

-"You often hear about the plaintiffs' bar and their solicitous concern for the privacy of citizens, and how they'll be happy to bring class actions to protect that privacy. Of course, as we have repeatedly noted (e.g., Jun. 20, 2005 and Feb. 9), that concern for privacy extends only as far as it doesn't interfere with trial lawyers' desire for a payday." It is equally stupid for John Edwards to say that all corporations are evil or for someone to say that all defense lawyers are trying to keep the little guy down as it is for you to say that all trial lawyers are disingenuous and only concerned about a payday.

-"Trial lawyers looking for a cash cow have seized upon the quackery..." On Overlawyered, there is never a question of whether plaintiffs' lawyers might have other, or parallel motives than seeking a "cash cow." You know this to be true, so you assert it no matter the circumstance. QED. Like Edwards and evil corporations.

I simply don't think that you run an intellectually honest analytical site like the Volokh Conspiracy. You run a site that starts with a thesis, finds facts to back it up, and deals in gross generalizations and exaggerations. Your defense is that you believe in your arguments about the underlying issues; I don't doubt that you do. But I think that your constant and gratuitous attacks on plaintiffs' lawyers as a group is not reasoned or reasonable.
1.4.2008 4:55pm
r78:
Paging Mr. Niporent, paging Mr. Niporent, clean up on aisle 6.
1.4.2008 5:27pm
Ted Frank (www):
If Ted Frank decided tomorrow that corporations were trying to stack the legal system against common folks and decided to start writing about that on Overlawyered - he would be tossed out of AEI by the afternoon.

That's interesting, because I wrote an op-ed complaining about a lawsuit Wal-Mart brought -- and it was for the Washington Post, which is read by many more people than Overlawyered. Several hundred afternoons later, I'm still at AEI. It's not like AEI's not aware of it, because they reprinted it on the AEI website. And I've written many many posts on Overlawyered criticizing corporate litigation against individuals (or other corporations), without anyone saying boo. That you even make the accusation demonstrates that you don't read Overlawyered.

And really, in the alternative universe where I were to get fired by AEI because of something I wrote, can you imagine how much money and publicity and goodwill I could turn that fact into? Geez, if I were so easily bought and sold, AEI is hardly the highest bidder. Even aside from the fact that I could just go work for a law firm for a multiple of what AEI pays me. (Heck, I made more money from p0ker in 2004 than I've ever made in a year working at AEI.) Fact of the matter is that AEI has never sought to dictate the content of my work, and the minute they do is the minute I quit.

Max writes: Every lawyer who represents clients with asbestos-induced meso is an ambulance-chaser?

Not in the slightest. But many of the attorneys who bid the highest to advertise on Google are: they don't try (or even litigate) a single case, they just collect plaintiffs and sell their inventory to the attorneys who actually do the representing for a cut of the proceeds. Plaintiffs' attorney Mark Lanier charmingly speaks of the division of labor between "chicken catchers" and "chicken pluckers," which, I suggest, is far more insensitive to meso victims than anything I've ever said.

Now that Max has more fully explained the nature of his criticism, I agree that the four posts he points out (out of hundreds dating back two years) are stylistically too flippant. I shall endeavour to improve, more often taking care to explain objections rather than using shorthand that can be read as painting with too broad a brush. Eugene is perhaps one of the best bloggers in the world at this, and I shall continue to aspire to his example.

Ok, back to real writing.
1.4.2008 10:07pm
Ted Frank (www):
It seems "poker" is the blacklisted word in the Volokh comments, rather than "mesothelioma."
1.4.2008 10:08pm
r78:

That's interesting, because I wrote an op-ed complaining about a lawsuit Wal-Mart

I think you've mentioned that one post two or three times as proof positive of what an intellectual maverick you are. How much does Wal-mart contribute to the AEI?

Did you do any articles that were remotely critical of Ken Lay, the crook operating officer of Enron and AEI trustee whose years of fraud caused billions and billions of dollars in damages? I know that the destruction of Enron pension plans and billions of dollars don't compare in importance to say, a lawsuit about an alarm clock causing some doofus to fall out of bunk bed or something, of course.


And I've written many many posts on Overlawyered criticizing corporate litigation against individuals (or other corporations), without anyone saying boo. That you even make the accusation demonstrates that you don't read Overlawyered.

I don't doubt that you make an occasional post about stupid lawsuits filed by corporations. There isn't any shortage of those either. But the only reason you are employed by AEI is that you cheerfully spout the sort of corporate boosterism that is their stock in trade. Let's be honest, they didn't hire you for your pretty face. They hired you because you were a reliable producer of the sort of "scholarship" they want. But you're right, I don't read Overlawyered much. Once you've read a couple of dozen of the posts, you've read them all.

(Heck, I made more money from p0ker in 2004 than I've ever made in a year working at AEI.)

Wow, you shouldn't sell your services so cheaply.


Fact of the matter is that AEI has never sought to dictate the content of my work, and the minute they do is the minute I quit.

There's no need to - you were vetted before you were ever hired. It's like some morbidly obese gal who works as a taster in a chocolate factory proclaiming that if her employer ever demanded that she stop eating chocolate she would quit. You like carping about plaintiff's attorneys and writing posts about frivolous dog bite cases and the like. That is exactly the message that AEI wants to keep pumping into the op-ed pages and elsewhere. It's a perfect fit. The only odd thing about it is why think tank propagandists want to dress up their work as "scholarship" or deny that they have an agenda. There are worse jobs to have.
1.4.2008 10:52pm
David M. Nieporent (www):
There's no need to - you were vetted before you were ever hired.
Well, then that obviates your entire criticism. If he believed these things before he was hired, then obviously he isn't writing them because he's paid to do so. And if he writes these things because he believes them rather than because he's paid to, then what possible difference can it make whether AEI is "corporate funded"? Your ad hominem arguments are making less and less sense. ("Ted Frank believes in tort reform and he writes about it!!!!!!") You really should stop digging.
1.5.2008 8:12am
mrb (mail):
"Plaintiffs' attorney Mark Lanier charmingly speaks of the division of labor between "chicken catchers" and "chicken pluckers," which, I suggest, is far more insensitive to meso victims than anything I've ever said."

Perhaps, but Lanier's not trying to gut their ability to recover for the harm they suffered at the hands of those you represent. On balance, I'd say they'd rather have the insensitive guy on their side.
1.5.2008 10:59am
r78:
Niporent - if I want the janitor, I will page you.
1.5.2008 4:59pm