Law Blog

Remember in elementary school how your teacher would constantly harp on you about penmanship?  No?  Apparently, once again, I’m the odd man out as my first-grade teacher said my handwriting was comparable to Jeffrey Dahmer’s.  Well Mrs. Donaldson, at least I haven’t wasted my life for the past 20 years teaching a bunch of snot-nosed kids…  Anyway the point I was trying to make is that all that emphasis your parents, teachers, and adults in general have been putting on you since you were young about making things neat had a purpose after all.

It seems that our justice system is being run by a bunch of Catholic school nuns hell-bent on tidiness because court cases are being thrown out for completely arbitrary reasons.  How arbitrary you ask?  How about poorly-stapled-document arbitrary?

Yes, that’s right people, if you’re planning on filing a claim in the New York Supreme Court, you better make sure your papers are aligned properly and the sharp points on your staples are filed down because the nuns running that court are also made out of sugar.  According to Justice Charles J. Markey, “[T]he poor stapling of the papers was so negligent as to inflict, and did inflict repeatedly, physical injury to the court personnel handling them.”  That must’ve been one incredibly bad staple job…

I’d hate to be the attorney on that one, what an uncomfortable phone call you’d have to make to the client.

“My motion was denied?  But how, I thought my case had a sound legal basis??  What, a staple??”

Now to be fair, that staple from hell did draw blood, twice.  And at the very least the court gave a reason for denying the motion, as unjustified as it may be, which is much better than what some courts give those trying to shove their cases before an almighty judge.  The court also claims that the reason for the denial stemmed from the lawyer forgetting to include his signature as well as missing affidavits from the plaintiff.  Way to recover…

Seriously though, a staple?  Reading this story, one can’t help but think of the first rule of the Federal Rules of Civil Procedure: “all civil actions and proceedings in the United States district courts…should be construed and administered to secure the just…determination of every action and proceeding.”  Which any smart-ass first-year law student can tell you basically means that the court is supposed to look at all claims so as to do justice for all those involved.  Justice.  Denying a plaintiff’s motion because the staple they used to keep their documents from flying apart doesn’t sound very fair to me (and I hope it doesn’t to you either).  Whatever happened to, oh I don’t know, judging claims on their merits?  Call me crazy and old-fashioned, but I’m just one of the nutty guys who still believe that courts were created to judge everything fairly.  They should really start tearing down those blind justice statutes all over the place.

So what’s the moral of this story?  Evidently, it’s that when you hire a lawyer make sure you insist that they include their kindergarten teacher on their list of references.

Yes, it is. The end.

OK, not really.

Frivolous lawsuits are bad. Just about everyone agrees on that, though there’s plenty of room for reasonable disagreement as to what makes a lawsuit frivolous. What we don’t hear about nearly as often are frivolous defenses.

According to the New York Personal Injury Law Blog a defendant in a personal injury lawsuit has sent a demand letter to a plaintiff’s attorney demanding that any reference to “pain” be deleted from the injuries claimed in a lawsuit because “pain is not an injury.”

While it’s true that physical pain is generally an effect of which physical trauma is the cause, the defendants here seem to forget that pain, in itself, can be debilitating. If humans were incapable of feeling physical pain, many injuries which we view as horribly debilitating would be quite trivial.

For example, if you step on a nail, you probably won’t be able to walk correctly for several weeks afterward, even if the wound were somehow guaranteed to heal properly, not become infected, and not cause any permanent damage. It’s the pain caused by such an injury which would make it debilitating.

Based on that, it’s absurd on its face to claim that pain is not an injury. Relatively “minor” injuries (minor in the sense that they have relatively little impact on a person’s overall health and lifespan) can cause severe, long-term pain, which impacts a person’s quality of life, and their ability to earn a living. From this, it seems absurd on its face to argue that pain is not an injury, in the legal sense. After all, tort law exists to compensate the victims of wrongdoing for injuries, and the “value” (really, the cost) of an injury is generally calculated through objectively observable facts, such as medical expenses, lost wages, etc. The cost of pain can, at least in part, be measured by a diminution in a person’s earning capacity, which is an objective measure.

Of course, we also award damages for “pain and suffering” in the abstract – and usually leave the decision of how much to award to a jury, which is the best course of action, as ordinary members of a community, especially those who might have experienced similar injuries, are in the best position to gauge what such an injury is worth.

According to statistics generated from LegalMatch case, of the tens of thousands of personal injury clients who came to the website over the past year, the overwhelming majority describe their injuries in terms of the pain they suffered, such as chronic back pain, neck pain, and headaches, as well as other difficult-to-quantify injuries such as insomnia and memory loss.

According to this defense attorney, have they not suffered any injuries?

What is an “auto product” you might be wondering? Your steering wheel, your car-seat, and your airbag are all examples of products that come together to make up your automobile. As with any other product, these things can malfunction. In the context of a moving automobile, when these things fail it can sometimes lead to serious consequences. This being America, what do people want to do when they are hurt? Sue!

In the past 12 months LegalMatch.com has been the destination for quite a few people looking for attorneys in their defective auto product claims. I decided to look at what injuries these products were causing, and here is what the data was telling me:

• Anxiety: 19%
• Difficulty sleeping: 14%
• Headaches: 12%
• Nausea: 4%
• Difficulty breathing: 4%
• Cuts and bruises: 3%
• Impaired vision: 2%
• Broken bones: 1%

A little while ago, we had an article debunking the myth that car accident lawsuits were a golden ticket to retirement. In reality, insurers fight these actions tooth and nail. Common injuries that do not exhibit obvious physical marks-such as neck and back pain-make a case more difficult to win.

This sage wisdom is relevant here because most of the injuries listed above aren’t visible. Maybe these folks have a perfectly valid warranty claim, but as far as product liability goes they may have an uphill battle. 

In fact only 6% of the above are the type of injuries that a doctor (and a jury) can see. The rest are based on doctor’s opinions and trusting someone’s word. Of course we all want to take someone’s word for it, but the insurance company that is being told to pay $100,000 because someone can’t sleep at night isn’t going to go down quietly. These plaintiffs should be ready for a fight.

I’ve written about our dysfunctional medical malpractice tort system before. In my opinion, attorney’s fees and court costs have a disproportionate stake in the economics of medical malpractice and health insurance in general, as opposed to what really matters: compensating the injured patient and disciplining the guilty doctor(s).

I decided to take a look at the top types of injuries claimed in medical malpractice cases submitted to LegalMatch.com in the past 12 months. Here is what I found:

• Possibility of future harm: 34%
• Long term or permanent loss of physical ability: 29%
• Short term loss of physical ability: 15%
• Disfigurement or cosmetic injury:  13%
• Minor injury: 6%
• No injury: 3%

More than half of the above claims are potential cases of doctor discipline if the claims are taken at face value. This means that in addition to a malpractice claim, the doctor can be subject to punishment by medical licensing boards.

Unfortunately, the stunning reality is that hardly any of the medical malpractice claims won by plaintiffs will result in doctor discipline. According to a study by Public Citizens Health Research Group, of all the medical malpractice payouts between 1990 and 2004, only 5.4% of doctors were subject to discipline. Even worse, of those doctors who had three or more medical malpractice payouts to plaintiffs, only 11.4% were disciplined. 

Why does that matter? Malpractice cases cost everyone money. They raise rates and they clog the tort system. If more doctors were subject to discipline for their negligence in addition to monetary sanctions, perhaps we would see less malpractice lawsuits? It would be a double whammy for doctors; they might take discipline more seriously and they might not be able to continue to practice if their negligence is brought before the proper authorities.

In fact, maybe we can get rid of malpractice lawsuits altogether? Establish some sort of board that can not only discipline doctors but extract compensation from them, or from some general client fund (such as those run by many state bars to compensate clients, like in California).

Certainly all the categories listed above face an uphill climb to get any compensation for the simple reason that litigating malpractice claims is costly. The big winners in our current malpractice system are not patients or the medical profession-they are (surprise surprise) the lawyers. Let’s change the equation and make this about good health and good medicine, not making money.

Every year, hundreds of clients come to LegalMatch.com seeking attorneys for on the job construction injuries. In the past 3 years, the following are the top ten construction jobs that complained of on-site injuries (in order of frequency):

1. Carpenters
2. Electricians
3. Laborers
4. Heavy Equipment Operators
5. Roofers
6. Truck Drivers
7. Welders
8. Floorhands
9. Piledrivers
10. Crane Operators

In perfect world, when someone is injured at work they are compensated through workers compensation. In a perfect world they get better, come back to work and stay on their job.

As you might have guessed this is not a perfect world. An employee often can’t do the same job they did before they were injured, and the employer lets them go. Sometimes even qualifying for workers compensation is an issue.

How do construction firms get around giving their employees benefits such as workers compensation and other protections? Simple: by calling them “independent contractors.” Although it is illegal to misclassify an employee as an independent contractor, many businesses do it anyway because of the significantly lower cost of hiring them. Employers do not need to pay any benefits and owe no real obligations to independent contractors other than payment for their services.

These incentives lead many employers to falsely call their employees independent contractors. Thus when someone is injured, they are often denied workers compensation or any guarantee of a job when they recover from their injury. Although the construction industry is one area where there are many legitimate independent contractors, often these contractors will hire others and misclassify them as independent contractors themselves, when in reality there is nothing “independent” about how they are doing their jobs.

Misclassification can subject an employer to fines, extra taxes, and sometimes criminal punishment. In 2002, for instance, Fed Ex was ordered to pay over $300 million in penalties for misclassifying its drivers as independent contractors rather than employees, and over $27 million to its drivers for lost wages and benefits

There is no law defining who is and is not an independent contractor. Instead, courts will look to a variety of factors in determining what role someone plays. Employees can ask the IRS to look into their status as independent contractors, and can also file a law suit either with the state or the federal government against their employer for lost benefits or wages.

While still a Senator, Barack Obama introduced a bill allowing employees to go through an arbitration process with their employer if they felt they were misclassified as an independent contractor. Currently nothing similar exists for employees or independent contractors other than the options mentioned above. Perhaps now that he is President (and once this whole little “Depression” thing blows over) people may soon get a much needed means of determining their status.