Monthly Archives: April 2007

Trial Lawyers v. Tort Reformers – the battle wages on

There’s an interesting post from the Tortellini today about trial lawyers and their inability to attack the tort reform movement with any skill whatsoever. As the post points out, trial lawyers are fantastic at getting 12 people in a jury to understand even the most complex issues, and to decide in thier favor. That’s what we do. However we can’t seem to come up with a message to convince the public that tort reform is a bad idea.

The public still seems to believe the tort reform message. I think one of the reasons is that the message is strong (ie lawsuits ruin everything, or that lawsuits make the cost of living go up). Our response isn’t strong. Our message isn’t clear. We’re not on the attack. Even if we are on the attack, we’re fighting insurance companies, who for years have told us that we are in good hands, that they are on our side, and that they are like good neighbors. It’s hard to fight a message that’s so ingrained.

Sometimes it feels like trial lawyers are a couple of guys carrying a pitchfork and a board with a nail in it, fighting a large, well-trained army.

Maybe it’s part of the trial lawyer hubris, how we think we’re good at everything. Instead of hiring a PR firm to come up with a comprehensive message and strategy, we try to do it ourselves. It’s the same reason you can open the yellow pages, look at attorney’s ads, and see 100 ads that look almost exactly the same.

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Virginia Tech murders and Workers Compensation

I’ve been following the Virgina Tech tragedy closely. Being an Iowa alum, I’m reminded of the Gang Lu murders at the University of Iowa in 1991.

The Gang Lu murders involved a graduate student who, upset at being passed over for an award, took revenge on faculty and students who he felt had done him wrong, before taking the gun on himself. The case was tragic, but has also interested me for the impact it had on Workers Compensation law in Iowa.

Iowa’s Workers Compensation law requires an employer to provide an injured employee with services and supplies needed to treat a injury (ie crutches). In this case, one student who was shot by Gang Lu (in the course and scope of her employment with the University) survived, but was rendered a quadriplegic. The case of Manpower Temporary Services vs. Sioson, 529 N.W.2d 529 (Iowa 1995) required the victim’s employer to buy her a wheelchair-accessible van. That was really the first time an Iowa appellate court had allowed something that “out of the ordinary” in a workers comp case. A later case, Quaker Oats v. Ciha, 552 N.W.2d 143 (Iowa 1996) allowed an award of a van and significant modifications to an employee’s home.

Manpower is an important case for any Iowa Workers Compensation Lawyer. This expansion of injured workers’ rights has doubtlessly helped hundreds of other employees the care and treatment they deserve.

Sometimes… good things can come out of tragedy.

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Filed under Iowa Case Law, Workers Compensation

Specialization – good or bad?

As I tell people all of the time, I’m a personal injury and workers compensation attorney in Rock Island, Illinois. Our firm does personal injury, workers compensation, and medical malpractice. That’s it. No wills, no divorces, no criminal law, etc.

Some people believe that specialization is bad. I guess this is the old-time view of the country lawyer who was a one-stop shop. One example of someone who disagrees with me is Susan Cartier-Liebel. She believes that having too few practice areas makes you look like the people in this pretty funny video.

I, on the other hand, believe that being too much of a generalist makes you look like this:

Virginia injury lawyer Doug Wessel would agree with me… one of his tips for getting good settlement results in personal injury cases is “don’t dabble.” I don’t agree with all of his tips, but I think the “don’t dabble” logic applies to other areas of the law.

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Medical Malpractice Lawyers Take Note: Juror Bias

I have always suspected that jurors in malpractice cases have a bias toward the defendant doctor. I never really had any statistics to back it up, but it just seemed that way.

Well now, thanks to the Deliberations blog, I have statistics to back me up. Apparently there was a study into juror biases in medical malpractice cases, and without wasting Deliberations’ flavor by linking the study by itself, I’ll summarize it thusly: For a plaintiff to win a medical malpractice jury trial, the negligence has to be really, really good.

This is unfortunate, because it means plaintiffs with valid claims don’t usually go home with jury awards. While the legal standard is “a breach of the standard of care, causing injury to the person,” it seems from the study that a jury needs “a really bad breach of the standard of care.” This just means that people like us have to work that much harder to prepare cases. Also, some attorneys tend to hammer on the injury aspect at trial, possibly in the hope that a jury would award damages based on sympathy. This study would maybe indicate that a better tactic would be to hammer on the liability aspect a little more, so that they jury really understands that the doctor was at fault.

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Lawyers have nightmares

I was talking to my boss the other day about having nightmares about cases. It’s common, I’ve heard for all lawyers to wake up during the night, worried about cases, statute dates, discovery, juries, etc.

And from what I’ve heard, it only gets worse.

I woke up in a sweat a few days ago, fearing that I would miss the statute of limitations date on a case I had coming up.

I couldn’t get back to sleep three nights ago after dreaming that I had messed up a client’s interrogatory answers.

I think the first time I had a dream like this was the night before the Illinois bar exam. I was staying with a friend in Chicago whose condo was very close to the train. I had a dream that I was in court, thinking that I was only watching a trial. Just then I realized that I was actually the plaintiff’s lawyer, and that everyone was waiting for me to give my opening statement, even though I had no idea what the case was and had nothing prepared. Then the members of the jury started stomping their feet loudly… quicker and quicker in anticipation of my opening as I stood silent. I was terrified.

When I woke up I realized that the stomping in my dream was actually the train going by.

I would love to hear other lawyer’s stories about crazy paranoid dreams. Maybe I should keep a journal of my own.

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Apparently losing an 11 year old girl is worth nothing

How much would a reasonable jury award for the wrongful death of an 11 year old girl?

 Apparently in Polk County, Iowa, the proper measure of damages is medical expenses plus interest on burial.

The Iowa Court of Appeals affirmed a Polk County judge’s denial of a new trial in Phelan-Ruden v. Suddreth. In the case, an 11 year old girl died in a skiing accident. The jury found the defendants 100% liable for the child’s death (I’m not sure what the cause of action was exactly…. failure to properly supervise maybe?) but awarded only $2,433.95 in medical expenses and $10,545 in interest on burial costs. That’s it. Nothing else.

In Iowa, the measure of damages for the death of a child is the present value of the minor’s estate – which the jury instructions define as “The present value of additional amounts the minor would reasonably be expected to have accumulated as a result of her own effort from the date she would have reached age eighteen until she had lived out the terms of her life” Iowa Jury Instruction 200.27. The parents are also allowed to recover for the value of lost services/companionship the parents would have received between the child’s death and when the child turned 18, minus the expenses of raising the child.

In this new case, the jury apparently found that the cost of raising the child outweighed any benefit the parents would have gotten from the child’s life. Does anyone believe that? Would any decent parent, after having lost their 11 year old daughter say “Man am I glad I won’t have to spend so much to raise that kid. This is great! Think of all the money I’m saving! What a good trade-off.” Of course not!

The jury also bought into the argument that the child wouldn’t accumulate any money over the course of her life… the opinion makes it look like the defense’s argument was essentially “Look at the child’s family. They never amounted to anything, so the child wouldn’t have either.” That’s a callous, ballsy argument to make to a jury, and I think much of the time the argument would backfire.

The jury essentially determined that, as the court put it, “the value of any lost services – economic, emotional or otherwise – did not exceed the cost to raise Jessica to adulthood.” Wow. Were there any parents on that jury?

I’m surprised. I can’t say that this was wrong, as I haven’t seen or heard all of the evidence. This is really just a knee-jerk reaction to the case. I’m also pretty surprised that the Court of Appeals affirmed the judge’s decision not to grant a new trial. One appellate judge, Judge Baker, dissented, and I think rightfully so.

Interestingly enough, the Court of Appeals affirmed the grant of a new trial in this case in February where a woman suffered some damages, the defendant admitted fault, and the jury did not award any damages. Isn’t that a similar situation?

My thinking is that the difference in the two opinions probably stems from the “abuse of discretion” standard used in reviewing a trial judge’s decision to grant/deny a new trial. For those non-lawyers, the abuse of discretion standard essentially means “a standard of review that allows trial courts to make whatever mistakes they like,” according to the Curmudgeon’s Guide to Practicing Law.

Oh well. Like I said, there’s probably something I’m missing… and the Court of Appeals probably did the right thing. I’m just surprised that a jury of 12 people in Des Moines decided that this award would do justice to a family who lost an 11 year old girl.

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Filed under Iowa Case Law, Juries, Wrongful Death

New legal theory in pet food cases

By now, I’m sure most readers have heard about pet deaths due to tainted pet food.

 Naturally, people want to sue. I can’t blame them at all… my dog is a part of my family and very important to me. The snag in these cases though, is that most courts only allow a pet owner to recover the cost of the pet, plus vet bills that were related to the tainted food. So if I spent $100 on a dog, and $200 on vet bills, I could only get $300 from a lawsuit.

 To most pet owners, that just doesn’t seem right. This article from Law.com talks about attorneys’ attempts to get more for tainted pet food cases. I have no idea how that will turn out, but I’m rooting for the pet owners on this one.

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