Law Blog

If you’ve been watching cable news, you’re probably aware of the “Birther” movement – a loose coalition of individuals and organizations promoting the idea that Barack Obama is, for one reason or another, not constitutionally eligible to serve as President.

They make a variety of factual and legal arguments to support their conspiracy theories. The most common “factual” (a term I use loosely) argument they make is that Obama was not actually born in Hawaii, as is widely accepted. Instead, they claim, he was born in a foreign country (usually Kenya). Of course, they ignore that a Certification of Live Birth has been released, and confirmed to be accurate by the relevant officials in Hawaii.

Others concede that he was born in Hawaii, and rely on dubious legal arguments to support their claims. Some claim (usually without citing any supporting authority) that, in order to be a “natural born citizen” under the meaning of the U.S. Constitution, both parents must also be citizens of the United States. To be fair, the Supreme Court has never firmly ruled on what it means to be a “natural born citizen” under the meaning of the Constitution. So, the birthers have simply settled on their own definition, to the exclusion of all other possible definitions.

To support this point, they often rely on the writings of a Swiss political philosopher named Emerich de Vattel, author of the 1758 book “The Law of Nations.” This tome was apparently quite influential in the early development of international law, and it advocates the idea that, for a person to be a “true” citizen of a nation, both of his or her parents must also be citizens. There’s just one problem: no evidence suggests that this work particularly influenced the framers of the U.S. Constitution when they were drafting that document. Even if it did, a Swiss book on political philosophy is not binding legal precedent in the United States.

None of this has stopped a dentist/lawyer named Orly Taitz from filing a lawsuit challenging President Obama’s eligibility to serve.

The result? The case was dismissed almost immediately. However, Ms. Taitz continued to file motions, and, after repeated warnings from the judge, was slapped with a $20,000 fine for misconduct, noting that she made no coherent legal arguments, and that her briefs and motions read more like political manifestos than court documents.

It should be noted that one of the best things about this country is the fact that you can say almost anything about anyone, especially elected officials, with relatively few legal ramifications. However, that does not mean that you are guaranteed a platform to air your views, or that you get to use the courts to air whatever crazy idea happens to pop into your head. If that were the case, I’d be in court right now, arguing the merits of hamburger earmuffs.

In the end, we should all remember that the courts are a place to settle genuine legal disputes, and the non-issue of Mr. Obama’s citizenship is not one of them. Ms. Taitz has every right to express her political views in any number of ways. She could buy space on a billboard, she could run spots on the radio, or she could simply make like this guy.

A recent annual check-up got me thinking about healthcare.  Healthcare reform is all the rage right now.  But if you are like me (not a doctor and/or someone with limited medical background) the current debate is often too confusing to follow and you are not sure exactly what to think.

Medical malpractice and tort reform are one such aspect of the debate where you see the convergence of medical and legal issues searching for a solution.  To put it simply, medical malpractice has to do with professional negligence on the part of the care provider that results in some type of harm to the patient.  Because of these potential for errors, medical practitioners carry malpractice insurance to help offset the costs of a potential problem.

Doctors argue that frivolous lawsuits and high jury verdicts have driven up the cost of malpractice insurance to such levels that some doctors refuse to practice the more litigation-ridden areas of their profession or have resorted to conducting costly unnecessary test and procedures to further shield themselves from lawsuits.  While it is true that some attorneys have made millions on medical malpractice suits, many lawsuits bring with them legitimate claims that should continue to have a voice in the American legal justice system.

LegalMatch provides attorneys for both sides of a medical malpractice claim.  The most common situations in which this is found are:

• When there has been a failure to perform surgery
• Delay in treatment
• Failure to properly explain medical procedure or potential side affects
• Prescription errors
• Failure to properly diagnose a medical condition
• Improper treatment

No matter what side of the debate you are on, there are solutions.  As a NY Times article put it, “the goal is not to reduce malpractice lawsuits, it is to reduce malpractice.”  But that is the difficulty: to develop a system that allows providers, doctors, and patients to maintain a trust in the health care system while keeping costs down.  Now we just need to do it.

o hai. i can haz injunction?

Alright, I’ll stop now. If you haven’t already closed your browser in disgust (and I don’t blame you if you have), you may be wondering what this is about. According to the ABA Journal, the highest court in the UK has allowed an anonymous blogger to be notified of an injunction through a Twitter message.

The blogger in question was impersonating a well-known English lawyer, Donal Blaney, who also happens to be a frequent conservative commentator. In his blog, the anonymous blogger apparently held himself out to be Blaney, and wrote articles under his name, promulgating caricatured political positions.

Because the identity of the anonymous blogger could not be readily ascertained, and Twitter was the easiest way to contact him, the court granted Blaney’s request to serve the injunction via Twitter. The Twitter message sent to the blogger contains a link to a copy of the injunction, and orders him to immediately cease impersonating Blaney, and to reveal his identity.

This follows on the heels of a ruling by an Australian Court, a defendant was served with notice of a default judgment through Facebook.

Apparently, courts in Australia are well known for their tech savvy, already allowing service of process via email and text messages, so such a move is to be expected. The question, then, is when should we expect such forward-thinking actions from American courts? If I had to guess, I’d say we have a while to wait, considering that some of them haven’t yet mastered advanced staple technology.

In all seriousness, this does raise some interesting questions about how service of legal documents should be handled in the digital age. The courts of most U.S. states, and the federal government, call for service to be delivered personally, in a hard copy. This is certainly the preferable method, as it all but eliminates any uncertainty as to whether or not service was actually received. However, it’s not always possible, for a variety of reasons. In such cases, “substituted service” – leaving the documents with another member of the person’s household, or at their place of business, is acceptable, as is service by mail.

Really, though, given the fact that most people in the developed world use email, and many also use social networking sites, wouldn’t allowing service by electronic means make sense, at least if other methods of service fail? After all, you can now check your email on almost any device that has a screen, and most people check their email on a daily basis. It would be pretty hard for someone to claim with a straight face that they haven’t received service, if they could receive it via email.

Of course this raises issues, as well. Once it becomes accepted that you can receive notice of a lawsuit via email, it won’t be long before the scammers realize that they can separate fools from their money by emailing them fake summons, and telling them that this pesky lawsuit can go away for a reasonable fee.

So, there are a few kinks to work out of the system, but in cases such as this, when the defendant is clearly a real person, with ready means of contact, but cannot be identified for whatever reason, it seems that justice could be served much more efficiently if this method of service were allowed.

For anyone who likes weird news like I do, you’ll be tickled to know that Sean McGinn, the loser at love who made a lawsuit out of his unfortunate nickname (which I just gave him), has dropped his lawsuit against Match.com.  Why did he drop it?  Because he’s a sensitive boy and can’t take all the meanie-weenies leaving ridiculing (and hilarious) comments about him on the internet.

For any of you unfamiliar with the site, Match.com is a dating website that purports to get over 86 million searches a month from its members looking for a love connection.  McGinn originally claimed in his class action suit that the website defrauded him because it didn’t tell him that most of its members have either cancelled their membership or have never become full members.  McGinn claims this deceptive practice led to many of his emails going unanswered which caused him emotional distress (and I’m sure many sleepless night pulling petals from roses).

Now to be fair to the crybaby…er… I mean McGinn, yeah, definitely meant McGinn, this was a class action suit with 15 other people joining McGinn on his crusade against loneliness (which also means there were 15 other equally sad and pathetic people).  Okay, I’ll stop now.

But this story got me thinking about whether McGinn actually had a leg to stand on.  I mean to most people this sounds like a funny, albeit frivolous lawsuit.  But he did state a claim that he was able to plead validly enough to be accepted to be heard before the court.  Though that’s still not saying much since we all know how easy it is in America to sue anyone for literally anything.

So this case would’ve come down to the evidence he had against Match.com and whether it showed his claim had enough of a legal basis to warrant awarding him his request for $5 million.  From not knowing anything else about the case other than what’s been released in the news, I’d say the answer is no.

Why?  Well, as much as we would all love to sue every company that advertises how great their product is, that’s just not possible.  Anyone familiar with basic contract law knows that the mere puffery (basically an advertising opinion designed to get people interest in a product, e.g. a car company that says their cars are the best) is not a valid claim for a lawsuit.  Though McGinn was suing on what appears to be a tort claim and not a breach of contract, I think the court would probably side with my assessment since allowing him to prevail would have open the floodgates to all kinds of other crazy lawsuits, especially class actions since they can be litigated for years on end.  Recent LegalMatch statistics show that most class actions involve more important matters, such as defective products and exposure to toxic substances, and not being lovelorn.

Courts want people to utilize the legal system to correct wrongs, but they don’t want to clog it with a lot of pointless claims; which sucks because I really thought I had a good false advertising lawsuit against these people.  I’m still waiting for my money back…

I always like it when frivolous lawsuits are in the news.  This time they are at the center of the President Obama’s proposed health care plan.

The gist of it is that the current debate surrounding the new health care plan could be resolved if the Republicans get their way on medical malpractice lawsuit reform.  For those of you who might not know, the Republican Party has long held the view that frivolous lawsuits are a plague on modern American society.  In the case of medical malpractice, they essentially believe changing the ease in which claims can be brought against medical professionals and/or placing caps on what plaintiffs can receive in pain and suffering awards will lower medical malpractice insurance.  The logic here is that reducing the liability and financial risk of practicing medicine reduces malpractice insurance premiums which will then reduce the cost of health care for all us Americans.

In practice, however, it’s not that simple.

Now to all you out there on the internet who are still reading my various rantings, you’ll know that I’m not a fan of frivolous lawsuits in that I think they are, well, frivolous.  They clog up our judicial system with claims better suited for rulings from a clown court.  They often don’t need to be heard at all and are aimed only to make money.  You’ll all probably also notice by now that my politics fall in the center and I’m more an advocate for bi-partisanship, despite the fact that I generally loathe the frivolous lawsuit.  So it pains me to say that at the same time, I do realize the ease in which lawsuits can be filed can also serve as a great potential deterrence to the more corrupt in our society.  Most people looking to rip people off in an intricate business scheme would probably think twice, or at the very least further complicate their plan to rip people off, if they know that they could easily be held liable for their actions.

So what am I saying, you ask?  Well, basically that in this case there needs to be a better balancing of objectives.  While it may seem like a good compromise by making lawsuits hard to file against medical professionals, that also means it will be harder for all people to file lawsuits against medical professionals, regardless of the legitimacy of their claim.  Furthermore, putting a cap on pain and suffering award will most likely reduce medical malpractice insurance for doctors, which is great for doctors.  However, that doesn’t necessarily mean that those savings will be passed on to patients.  If you were suddenly freed from your car insurance premiums, would you give all that new disposable income to Oliver Twist and the rest of orphanage?  I would, but not everyone is a wonderful as I am.

The best course of action, I think, in this case would be a compromise from the Republicans.  As much as medical malpractice lawsuits need to be reformed, the sheer number of health needs that will be served by the passage of President Obama’s new health care plan greatly outweighs the follies of an overly litigious public.  The privatization of health care in some ways could be a factor in increasing frivolous lawsuits, as well.  People who can’t get the money for their surgery from their insurance company could theoretically try and go after their medical providers instead.  It may sound like a stretch to some, but hey, crazier things have happened.

Once again, I’ll get off my soapbox…