Thursday, September 28, 2006

The Insurance Companies Will Not Be Happy

Medical malpractice caps, like MICRA here in California, are the darlings of the anti-tort/anti-patient rights groups (i.e. insurance companies). When they were first introduced, in some cases more than thirty years ago, the caps were fair and in line with the judgments that had been received.

However, what no one thought about when they passed laws like MICRA in the 1970s was that inflation would occur. Costs of living increased and the buying power of a dollar went down. So what was once a somewhat fair cap, in California $250,000.00, is now no longer the deal it was supposed to be that would protect consumers, serve as a deterrent to doctors, and keep insurance companies from either withdrawing from the market entirely or from raise premiums to a level that no doctor could afford.

Many doctor groups and the insurance industry insist that the medical malpractice caps on non-economic pain and suffering have worked and have decreased premiums allowing doctors to practice in more places without having as much economic pressure on them. However, there is evidence which indicates that the only beneficiaries of the caps are the insurance companies who continue to insure doctors who should not be practicing. In some cases, decreases in premiums only occurred after the states began taking a more serious approach to regulating the insurance industry.

One of the main criticisms of many medical malpractice cap laws, many of which were based on the California MICRA statute, is that they do not take into account for inflation. As far as I know, no one had been successful at challenging a MICRA style cap.

That is until now. In Louisianna, attorney Oliver J. Schrumpf represented a family who filed medical practice suit for the wrongful death of a relative. This started back in 1994, and has been going through the stages of appeals since approximately 1999. The appellate court found that the law, although valid initially, was now running afoul of a provision of the Louisiana state constitution which guarantees its citizens an adequate remedy.

They noted it was no longer adequate because the $500,000 cap adopted in 1975 was now equivalently the worth of approximately $146,435 to $160,000 in today’s dollars. Conversely, if the cap had kept pace with cost of living and inflation, the cap should now be adjusted to $1.6 to 1.7 million dollars. Now the ruling does not strike down the entire statute, only the portion dealing the amount that the non-econmic damages are capped.

Now, since the ruling was based on a portion of the Louisiana constitution, I do not expect that it will start a tidal wave of change in the MICRA states. However, I'm sure that some enterprisng plaintiff's lawyers will start chipping away again until they are able to correct this inequity that we have built into the system.

Wednesday, September 27, 2006

In honor of a case I am working on right now

Just Wrong Wrong Wrong

Apparently, there is a new sex tape hitting the market soon. It is one featuring Dustin Diamond, aka Screech Powers of Saved by the Bell, with two women. Unlike all the others, this is being released without much protest by Diamond, who apparently may get a cut. Go buy the man's t-shirts and save him from this, otherwise another child star will become a porn star.

Some Very Good Points

Now, I do not agree with everything that Mr. Olbermann said, but I agree with the basic thrust of the editorial. And I love the way he said it.

Monday, September 25, 2006

Lucky Guy

Amidst my rebuilding of my office's infrastructure, I am watching the Giants play the Arizona Diamondbacks. In the first inning, a fan on the club level dropped a ball that ended up being caught by a cute little girl (maybe 10). Anyways, the next inning the announcers, Mike Krukow and Duane Kuiper, after giving the guy grief on air for a half inning, sent down signed ball that said "Nice Hands Meat". Lucky guy.

Saturday, September 23, 2006

Back From An Enforced Break

Normally I try to post a little more regularly than I have been for the last few days. But there is a good reason why I've been silent lately.

On Thursday, I went down to the court house to participate in the attorney of the day project, which I have mentioned a few times before. When I got there, I was told that my client had not shown, but that there were so many no shows, attorneys and clients, that they were trying to figure out what they needed.

So I hung around a few minutes and was assigned a case that was "right up my alley". If you've read this before, you probably know what that means: crazier than a loon. How crazy was this one? She came equipped with her own APS social worker. Never a good sign. This woman was loudly yelling that she needed to get going or she was going to be late for her trip to Hong Kong where she was going to live. One person near her mused aloud if she knew that Hong Kong was no longer ruled by the UK. Her landlord was attempting to evict her on the grounds that she was a nuisance.

I'm not even going to get into her spitting and drooling problem (thanks modern medicine). Eventually, we did a deal for her. Everyone was happy, including her social worker.

Then as I was about to grab my bag (with files and computer and cellphone, which I had brought in anticipation of going directly home from the courthouse), the coordinator of the project asked if I could take another case that had gotten a little crazy. So I said yes.

This case was a straight non-pay case. Of course, they were claiming that the tenant had not paid his rent in exactly a year. I looked over what the landlord and his attorney was offering and then got together with the client. The client wasn't sure about the offer. The problem was, the landlord had set this one up so that there was no way for tenant to win. The thought crossed my mind, given the name of the landlord, that this was part of an attempt to clear a building. (Of course, that is just my thought in looking at it, not based on anything more than the landlord's reputation among the tenant's bar) After laying out the realistic options for the client, he accepted the deal.

And then I went back to grab my bag and go home. Only one problem. My bag was significantly lighter. Lighter by 5.6lbs. The weight of my Sony Vaio laptop and cellphone. Some rat fink b%^&@#d, more than likely someone that one of the other attorneys of the day was representating went into my bag and stole my computer and phone.

As a solo, and one who is only starting out, that laptop was essentially my entire office. And my back-ups are not as current as they should be. Fortunately, I have hard copies of everything. And only one case has a deadline anytime soon.

So now I am back up with a new Toshiba Satellite S9312. I so did not need to buy a new computer this week.

More later.

Wednesday, September 20, 2006

Damn Those Textualist Judges!

Or at least, that is what I imagine the credit card companies will be saying if other judges start applying the same reasoning that Chief Bankruptcy Judge Stephen D. Gerling applied in a recent case before him. When Congress passed the bankruptcy reform package last year, there was a mistake made in some of the language. The language changed the definition of "disposable income", which is very important to calculating how much someone in certain types of bankruptcy proceedings will have to pay to their debtors each month.

Apparently, the new version of "disposable income", if you read it and strictly apply the language, results in the bankrupt person being liable to spend less each month, because of exemptions, to those that they have outstanding debts.

Now most likely, someone will appeal this. This will then go up to the 2nd Circuit Court of Appeals. Depending on how much of a point someone wants to make, it could go up to the U.S. Supreme Court. Now, what would Scalia do with this? After all, for years he, along with other conservative jurists which include at times Justices Thomas and Alito and (possibly) the Chief Justice, has railed against activist judges, interpreting the will of legislature instead of applyin the law as written.

Well, that's what Chief Bankruptcy Judge Gerling did in his ruling.

Tuesday, September 19, 2006

And Here I Though Joey Was Just A Character

Perhaps you have heard the old axiom that someone who represents themself has a fool for a client? Apparently, Matt LeBlanc has not heard this before. That or all the money he made on Friends and Joey is gone.

For whatever reason, Mr. LeBlanc has decided that instead of hiring an attorney to represent him in his pending divorce case, he will instead represent himself.

A quick look at his IMDB credit list does not show him ever playing an attorney. It'll be interesting to see how long he likes playing one in real life.

Monday, September 18, 2006

Is Chirac Trying to Live Down to the Stereotype

My friend's favorite joke, and this was pre-9/11, was "Want to buy a French rifle? Never fied only dropped once?" Perhaps you might have tried to google French military victories. Or perhaps heard the phrase "cheese-eating surrender monkeys" when referring to France and its foreign policy.

According to the news today, instead of trying to enforce the deadline which the U.N. gave Iran, France has decided to intervene. Chirac is proposing that instead of enforcing the deadline, the rest of the world should agree to refrain from sanctioning Iran and Iran will promise not to refine anymore nuclear material.

Like they did when they signed on to the Nuclear Non-Proliferation Pact.

Chirac seems to think that as long as people are talking, then peace will inevitably occur. I believe the head of that school of thought used to be Neville Chamberlain. Of course, Chirac has the luxury of allowing Iran to say one thing while it does another.

Its not as though his home territory. Its always much more convenient when the people who could suffer as a result of appeasement policy, and the resulting ballistic missiles capabable of carrying a nuclear warhead, are Israelis and American. No doubt, the French companies doing business in Iran appreciate the support the Chirac government is giving them. Perhaps their forecasts already include a head tax.

This is not to say that negotiations should not be tried. But to expect one side to adhere to rules which they have clearly shown a disdain for, and have actively worked to violate, shows a lack of understanding of reality. In the past, the West has repeatedly asked Iran to please stop refining nuclear material. Each time Iran has eithe refused or claimed that they are not doing anything of the sort. The definition of insanity, as my mother would tell me, is to do the same thing over and over expecting a different result.

Mr. Chirac, your proposal is not only worthy of the stereo-type of the cheese eating surrender monkey, but insane to boot.

Obviously I am doing something wrong

Just got off a phone call with the opposing counsel in a case where I represent the party that was in default. He said that he was glad I was getting involved.

Glad?!?!?!?!? To have another attorney involved? When he already had a default against my client?

Am I missing something here?

Not Even The Ninth

The Ninth Circuit Court of Appeals gets a bad wrap. Sometimes, I think it is undeserved. Yes, it is the circuit that struck down the pledge of allegiance, but there is something to the argument that Congress, when it changed the pledge back in the 1950s, was trying to put some deistic ideas that some people do not want passed on and taught to their kids.

Incidentally, and off the topic, when I worked back east doing appeals work, the test I used for whether we could get away with doing something to a prisoner was to see if the Ninth Circuit had already approved, figuring that if the Ninth had let the prosecutors get away with it, the comparably conservative Third Circuit was not going to bat an eye at what had happened. But I digress.

Despite the claims that the Ninth will find fundamental rights for anyone or anything, Lowering the Bar reports, not even the Ninth Circuit will find that a equal protection should extend to an aircraft or mandate that someone with a private plane should be allowed to land it wherever he pleases. Apparently Ron Tutor sued the City of Hailey Idaho for denying him permission to land his executive version-737 at its airport when Mr. Tutor wants to fly up to his Idaho home. Of course, despite the fact that a 737 weighs approximately twice what the airport's runway will support, Mr. Tutor sued on a number of theories including the city's action denied him substantive due process, procedural due process, equal protection, and the right to travel.

Of course, it might have just been cheaper to offer to improve the city's airport's runway or buy a smaller plane to use for those getaways to Idaho than what he spent on the lawyers, and the fees for the City's lawyers and the sanctions which the District Court awarded for bringing a frivolous suit.

Thursday, September 14, 2006

Quote of the Day

When asked about having sex with a pupil, Debra LaFave stated that she "made a really, really, really bad choice."

Making an honest woman of her could get you arrested in Minnesota

Courtsey of Lowering the Bar, comes this story of love, weddings, massages, and possible prison time.

Apparently Minnesota has a law which prohibits massage therapists from engaging in sexual relations with their clients for two years after the client ceases to be a... erhm... client. On the surface, it seems like a nice way to try and sort out who the legitimate massage therapists and who are, well, not.

Well, a massage therapist married a former client of hers back in September of 2003. Of course, although he had not been a client since May of 2002, Mr. Fjellman still fell within the two year moratorium of people that the new Mrs. Fjellman could not schtup. Add in Mr. Fjellman's ex-wife, who apparently is not happy about being the ex-wife, who decided to report them to Minnesota authorities, and you now have a situation where a wife could be fined or lose her license for (gasp!) having sex with her husband.

I'm sure that the people of Minnesota will be more relaxed now that they know their officials are on the job.

Hopefully there will be a happy ending. (I just couldn't resist)

Wednesday, September 13, 2006

In My Opinion

In my opinion, the worst bank to do business with is Wells Fargo. Maybe someone out there has had a good experience with them, but in my opinion they are terrible to work with. [Long expletive rant deleted regarding experiences that the Angry Bell has had with Wells Fargo]

Now I know why that old vet pickets the Wells Fargo branches here in the city every day. I'm almost ready to join him on the picket line.

Tuesday, September 12, 2006

Conspiracy Theories

It appears that the further away that we get from the events of September 11, 2001, the more people want to seek comfort in conspiracy theories which explain how things could have gone so horribly wrong on that day.

Unfortunately, it seems like those who would want to twist the events into a conspiracy theory are gaining ground. For example, an outfit called 911Truth has raised over $20,000 this year. More than 30% of the U.S. now believes that the attacks were as a result of a conspiracy involving our own government (which either participated in the attacks or allowed them to happen).

For those who want to see a bit of the facts, Popular Mechanics has done a lot of work reconstructing what did happen in New York and Washington, D.C. Their editor in chief, James B. Meigs, recently put pen to paper again summarizing the results of their investigation into the claims of the conspiracy theorists.

It took 30 years for Pearl Harbor to become a major conspiracy theory playground. The wonders of the internet.

One of those times I am happy not to be a subject of the Crown

Many of what we regard of as basic rights, we have because of the rights won by the English in the centuries leading up to us.

Apparently, Parliament did away with one of those, or at least severely curtailed it, back in 2003, when the Blair government passed a law which allowed for the re-prosecution of certain offenses (most notably murder) even after a jury had found a person to be innocent of the crime. Now, I am all for getting the criminal and putting them away (and sometimes more). However, I'm uncomfortable in doing away with the double jeopardy rule and allowing the government to keep coming after someone after a jury has found him or her not guilty.

So now someone who had been found not guilty, is back in the dock facing a murder charge for a third time.

Thankfully, we still have a Constitution.

Monday, September 11, 2006

Something that has been bugging me today

This morning I caught a little of Donald Rumsfeld's speach. He opened his remarks at the Pentagon ceremony by saying something along the lines of, "Five years ago today, our country was dragged into a war not of its making..." (or words to that effect).

Now five years ago was a very, very bad day. As a nation, we have had worse. However, on a day when the politicians in this country want us to think about something, it would be very self-deceiving for us as a nation to believe that we had no hand in the world we live.

As a nation, we made choices over the past eighty years or so. Between 1916 and 1940, we sought to make as small presence on the world stage as possible, despite the fact that virtually all of the Great Powers recognized that we were becoming a Great Power. When we did emerge, for a brief period from 1971 through 1919, we did so almost reluctantly. By refusing to engage in the world stage, we abdicated our position and our power and enabled the rise of facist militaries because we wanted to isolate ourselves from what we viewed as the Old World's Problems.

That did not work. From 1940 to 1945, we first supplied the democratic powers as they fought facism, fought as the junior partner, and then took over as the senior partner of an alliance to end facism.

From 1945 until 1991, we were one of two superpowers locked in a long cold war which threatened to become a shooting war that could end the planet. As part of the Cold War, we elected leaders who made decisions to back certain regimes. Instead of demanding that democratically elected governments stand, we allowed them to be, and in some cases assisted in them being, toppled and replaced by dictatorships. Our view was simple in a way, if you were our client, we would tolerate your indescretions to a point. If you were the Soviet Union's client, even if you were a democratic society, we would work to convert you by any means.

These decisions were right at the time. Virtually no one could foretell how the Cold War would end. It did not end, as many exepected with nuclear weapons and an encounter between NATO and Warsaw Pact in Central Europe, but quietly as the Soviet Union imploded.

In the wake of the Soviet Union's demise, the majority of the nation demanded that there be a "Peace Dividend". For nearly ten years, we drew down our military, eschewed agressive diplomacy and voted in favor of those who would want to cut our foreign expenditures. And they did. When interned at the State Department in 1998, foreign subsidies and the money available for the U.S. to use overseas to promote its interests was dropping towards what was then an all time low.

Currently, we are last in percentage of GDP expended on foreign aid (.2 percent), even though the total amount is the most (a little over $27 billion). Apparently, that was too much for the budget cutters of the 1990s on both sides of the aisle. Neither number is that far off from where it was five years ago, or even ten years ago, when it roughly .1 percent of the GDP.

Instead of stepping up and doing something about creating a world where the threat of war or weapons of mass destruction was diminished, we rested on our laurels. And in the process allowed Yugoslavia to go up in flames, Hati to continue to be a disgrace to the Monroe Doctrine, Somalia and others to fester. We made deals with authoritarian governments of countries where we knew, or should have if we had been willing to pay attention, that terrorist groups were operating from. Places like Egypt, Afghanistan, and Saudi Arabia.

The great short-lived triumph of the Clinton foreign policy was the Good Friday Agreement in Northern Ireland. In virtually everything else, the Clinton administration failed. It did not remove the threat of nuclear weapons from North Korea. It failed to resolve the Somalia situation. It failed to bring about a lasting solution to the problem faced by Israel. Only after squandering the U.S.' credibility in futile gestures which did not address the reality of the situation, was his administration able to broker peace in the former Yugoslavia.

But it was not all Clinton's fault. The nation during the 1990s did not want to be all that bothered with a major foreign policy matter. It wanted to make money, lots of money. Even though Republicans pressed for increase military spending, the mood of the national leaders was that the Powell Doctrine was the only way to ensure victory. We chose the easy way to live. and exist. Therefore, the U.S. did not engage in small wars.

What this meant in practice was bombing from high altitude in Yugoslavia and Iraq. It also meant withdrawing from Somalia the first time an American unit was bloodied in Mogadishu. It made our policy look inept, our leaders and our national resolve weak. And people were watching.

Begining in 1993, Al-Qaeda attempted its first U.S. attack. Ramzi Yousef master minded an attack on the World Trade Center which shook the towers, but failed to do the damage hoped. In 1998, after building strength and watching us, they made their next moves. They attacked the U.S. Embassies in Tanzania and Kenya. Our response was not exactly earth-shattering. We launched some cruise missiles at targets in the Sudan and Afghanistan, hoping that we would kill someone involved in the attacks. There still remains doubt that we came even close at either location.

So at first we ignored the world. Then we dealt with it in ways that did nothing to help our cause or enhance our standing. We looked like a wounded cyclops, lashing out ineffectively. And Al Qaeda struck again, holing the destroyer U.S.S. Cole. This time, we did not even bother with a barrage of cruise missiles. Instead, a report was issued stating that we needed to change our procedures.

And then we elected a president who ran stating that he wanted to disengage from the world. That he wanted to significantly cut back on our involvement in peace keeping activities. He abdicated the U.S.'s position in the negotiations between the Arabs and Israel. He refused to enter into international agreements, including the Kyoto Accords. He announced our intention to withdraw from the Comprehensive Test Ban Treaty and the International Criminal Court, and he withdrew the United States from the Anti-Ballistic Missile Treaty. He also stated in his 2000 campaign that he wanted to withdraw troops from the Balkans and Hati, find ways to cut the military budget and decrease intervention abroad. He also stated that the U.S. should be more "humble". Maybe it is not what he intended, but looking at those quotes again, it seems as though he was signalling that his administration wanted to retreat from the burdens of being the world's superpower.

This only encouraged Al Qaeda and others to act. And they did, striking the World Trade Center for a second time. This time, instead of a van full of explosives, they flew two planes into each of the main towers.

Did we deserve what happened on September 11, 2006? Of course not. Did we create the climate that allowed it to happen? Yes. We failed to act with strength when we needed to, resolve when it was called for, and generosity when it was needed. We supported the wrong people, people who oppresed their own and then blamed the U.S. and Israel for all their ills.

I know its not realistic to expect a political leader of in this day and age to say it, but I think it would have been more accurate had Rumsfeld stated something like, "and we visit all of our sins upon our children. We refuse to take responsibility for what we've done... Sooner or later, the day comes when you can't hide from the things that you've done anymore."

We chose to save when we should have spent the extra penny. And in the end, it came back to haunt us. Failing to realize how we got to this place only sets ourselves up to repeat it down the line. Supporting to cause of liberty and justice by actually supporting those who subscribe to it, and not those who use it as a propaganda line, by not running when things become difficult, and by leading instead of politicking.

Anyways, those are my thoughts.

I Am On Roll Today

Yes I am. I managed to confuse the genders of my newest clients. Fortunately, they still want to hire me.

In my defense, I would challenge you to find someone who looked and sounded like my client who the reasonable person would no think was a guy.

Then one of my other clients just wanted to "talk". I got to hear all about my client and my client's significant others problems and how it was effecting their lives and such. And all I wanted to do was to just get this person out of my office so I could do some work.

I like my clients. I really do. But there are tims I just want them far away from me so that I can actually do the work that they want done.

Friday, September 08, 2006


I haven't commented on this before, but I just saw this piece over at the Captain's Quarters. The Coburn-Obama bill (S.2590), Federal Funding Accountability and Transparency Act of 2006, passed the Senate yesterday. This happened after the campaign to out the secret hold which had been placed on the bill, by Senator Stevens (R-Alaska), which had been prevented the Senate from voting on it. Hopefully the House will act on it and send it to the White House for signing.

More transparency in government is a good thing. Hopefully the administration, and those that follow it, will not abuse the classified information exception.

Thursday, September 07, 2006

Not the way I like cases to go

I recently just finished up dealing with conservatorship in which my client was an heir of the estate. In looking at the billing, I am coming to a conclusion: I should be a professional conservator.

These people billed for every little thing. Every time they picked up the phone, looked at a piece of mail, or scratched their nose it seems, they billed for it. Now, as an attorney, I can appreciate maximizing the billing. However, what gets me is that the conservator seems to be able to bill all his people out at one rate.

For example, the named conservator billed for his time at $100/hr. His assistance, handling ministerial tasks that did not take that much skill (i.e. ordering adult diapers online) billed at $100/hr as well.

It seems like the only one who really benefits when these are the professional conservators. What I have learned in the short time I have been dealing with this matter is that it is very difficult in a probate setting to question the decisions and billings which they make.

The Los Angeles Times had a series of stories on this industry, which I wish I had known about before getting involved in this mess, which outlines the dangers of this unregulated industry. A bill has been passed by the California Legislature which would finally start to regulate this industry, but the last three govenors of California have vetoed similar legislation in the past.

After this, I'm hoping to find another case with a professional conservator at a stage where I can do something more substantive. The way these people treat both the conservatees and the families is just wrong.

So how do you avoid putting your loved one in the position where they will be cared for by these so-called professionals? The alternative is for a family member to step up and act as a conservator. Yes, it is a sacrifice. Yes, it will mean having to do something that people do not like to do, including:
1) Seeing an attorney to talk about your estate planning (Seeing a qualified, reputable attorney now may cost a few hundred dollars, but it will save you a few thousand dollars in fees later.)
2) Making will. (Yes, we do have to think about dying)
3) Makin an advanced health care directive (Its not just about when the plug gets pulled)
4) Establishing a living trust
5) Nominating a conservator in that living trust.

There are probably some other things that you should do, but that is a good place to start. Otherwise, you could end up being cared for by a stranger without the ability to make any of your own decisions.

When I am less angry about the result of this case, I will try and put together a more coherent posting about this industry.

Starting to Feel Ugly

I took a shower. I even shaved. And yet for the second day in a row, potential clients who had scheduled appointments with me have failed to show.

I mean, even the crazies I take on for free call and tell me when they are not going to show up because they think the aliens will get them.


Tuesday, September 05, 2006

Don't I feel like a moron

Every so often, I would look at my postings and wonder why there were never any comments. Then last week I switched over to the beta version of blogger.

And discovered there was a whole slew of comments waiting to be moderated.

Apparently I had ticked the moderate button at some point.


Thanks for all your comments. Sorry they didn't get posted.