Are You in Good Hands?

They call themselves the "good hands people" and in their television and radio ads tell you how lucky you are to be insured by them. And you may be -- unless of course you refuse one of their lowball settlement offers and decide to litigate a claim against them.

For ten years Allstate has hidden a dirty little secret from policyholders: in the 1990s they made a conscious decision to play hardball with claimants, forcing them to accept artifically low settlements or be subjected to scorched earth litigation tactics for years. At the heart of the policy decision are 12,000 pages of documents detailing the system Allstate implemented to strong arm claimants and stall litigation -- documents that were released in early April as Allstate scurried to control damage done by a Florida appeals court when it decided state regulators could prevent Allstate from writing new policies because it refused to turn over those documents.

In essence, Allstate's position to claimants was "you don't need a lawyer; trust us to get you a fair settlement quickly." More often than not, however, their offer was substantially below fair market value and claimants would settle so they did not have to deal with aggressive litigation. The reason for these tactics? Simple: profits. Allstate is far more concerned with their bottom line than it is with appropriately compensating injured claimants.

What should be underscored here is this: when anyone -- especially an insurance company -- tells you a lawyer isn't necessary and tries to curb your access to the civil justice system, run in the other direction.

For more on Allstate's practices go to www.heraldtribune.com/apps/pbcs.dll/article?AID=/20080406/NEWS/804060659/1661

Medical Malpractice: No Crisis At All

On March 4 New York doctors staged a very dramatic rally in Albany when approximately 2,000 physicians threw down their white coats on the steps of the Capitol building to protest what they called “soaring” medical malpractice insurance costs resulting from lawsuits. There certainly was a lot of drama – but zero substantive merit to the doctors’ complaints.

I’m sure you’ve heard the following lies about medical malpractice lawsuits: Caps on non-economic damages (pain and suffering awards) help control malpractice insurance costs. Frivolous medical malpractice lawsuits are rampant and costly. The medical malpractice system needs reform. Wrong, wrong, and wrong again.

Caps -- limits on the amount of damages a victim of malpractice can recover for pain and suffering -- are at best ineffective. Just ask Florida doctors. A recent article in the Sun Sentinel written by a Florida physician asks the Florida legislature to enact further legislation to stem the tide of doctors fleeing the state. Florida has had caps on medical malpractice awards for years – yet this doctor acknowledges insurance costs are still rising, doctors are still leaving the state and even more legislation is needed. Clearly, caps don’t work. Other states – such as California – have seen similar problems: rising healthcare costs and rising malpractice insurance premiums despite the presence of lawsuit caps.

And at worst, caps harm the victim. Take this example from California, where there has been a $250,000 cap on non-economic damages since 1975 (from the LA Times):

Dave Stewart's 72-year-old mother went to Stanford University Medical Center for double knee-replacement surgery in April. Four days later, she was dead.To Stewart, an anesthesiologist, it seemed a classic case of medical malpractice. After the operation, his mother developed sharp abdominal pain that she described as "10 on a scale of 1 to 10," according to her medical records.

The hospital failed to diagnose the cause of her pain and continued to treat her with narcotics. Her vital signs became unstable and she was moved to the intensive care unit, but she died of complications from an untreated bowel obstruction. State regulators cited the hospital in the case this fall.

Stewart and his two sisters decided to sue, and they approached two dozen lawyers. One after another declined to take the case, always for the same reason: It wasn't worth the money.

Why isn’t it worth the money? Because medical malpractice lawsuits are expensive to litigate. They can cost tens of thousands of dollars or more – and spending more money on litigation means the client ultimately receives a smaller recovery.

Nor are frivolous malpractice suits rampant or costly. In fact, as a 2006 Harvard School of Public Health study of more than 1,400 medical malpractice claims revealed, just the opposite is true. Among the findings of the study:

· The number of meritorious claims that did not get paid was larger than the group of meritless claims that were paid
· Most malpractice claims involve medical error and serious injury
· 90% of the claims involved a physical injury and of those 80% resulted in significant disability
· 72% of claims that did not involve medical error did not receive compensation
· 73% of claims that did involve medical error did receive compensation
· Nearly 80% of the administrative costs of the malpractice system are tied to resolving meritorious claims. Conversely, claims that did not involve medical error accounted for a relatively small piece of administrative costs

The study’s authors concluded that “overall, the malpractice system appears to be getting it right about three quarters of the time.” The bottom line: there is no medical malpractice “crisis.” There isn’t even a problem.

Good Legal Writing - A Short Primer for Lawyers

Last week I received an email from an associate with an attachment – a one page letter to adverse counsel. The email was one sentence: “Is this okay to send?” Here are the first two lines of the attached letter, word for word, the punctuation as it was in the letter:

This letter hereby rejects your notice of EBT dated March 23, 2007 of the father
of my client scheduled for August 23, 2007. I admit I had a good laugh when I
opened it considering we spoke just last week and you told me you were looking
to get me a date for your clients deposition that you had previously requested
to be adjourned.

Yes, that was actually written by a lawyer. I still can’t read it without cringing. Unfortunately, the same can be said about much of what we write. It doesn’t have to be that way. In fact, as lawyers, language is perhaps our most important tool. The clearer, more concisely we write the better off we’ll be. Here then, are a few tips gleaned from a few years attempting to do just that:

• Know your audience. For lawyers this means really thinking about who is going to be reading your writing. If you’re making or opposing a motion in a busy New York City trial court and draft a 30-page brief, don’t expect it will be read. Conversely, if you’re submitting papers to a Federal District Court it ought to be perfect because the Judge – and her law assistant – will read every word.

• As Thomas Jefferson said, “[t]he most valuable of talents is that of never using two words when one will do.” In other words, cut the fat.

• Don’t use “then” when you mean “than.” This is one of the most common – and awful – mistakes I’ve seen over the years. “Then” refers to a point in time. “Than” refers to a choice, or “as opposed to.” Thus, “I’d rather watch TV than do chores,” or “I then decided I’d better get to work.” The two words cannot be used interchangeably.

• Use apostrophes appropriately. Just because a word ends in “s” doesn’t mean an apostrophe precedes the “s.” Thus, serving more than one subpoena does not make the word “subpoena’s.”

• A corollary to the previous rule is learning the appropriate uses of “it’s” and “its.” “It’s” is the contraction for “it is.” “Its” shows possession and has no apostrophe. So we would write “it’s a good case” or “the defendant is responsible for the acts of its contractors,” but never, for example, “the defendant is responsible for the acts of it’s contractors.”

• Finally, consider your font/formatting. Steve Jobs and Bill Gates have spent dozens of years and billions of dollars designing fonts that don’t look like they’ve come out of a ‘60s-era typewriter. So why would anyone use Courier? Or not fully justify margins? Arial may seem a bit informal for some legal documents, but certainly Times New Roman or Garamond is preferable to a document that looks like it just came out of an IBM Selectric.

This certainly isn’t meant to be an exhaustive review of legal writing or the epitome of clarity – just some food for thought.

Bad News for NJ families

Picture the following horrifying scenario: you're a parent and your young teenage son or daughter is out with some friends one night. At 3 a.m. you get a call from the local police: there was a horrible accident and your child died. No one was drunk or on drugs -- it was just a horrible accident. To say you're distraught is an understatement. If you can catch your breath long enough to cry you do, but more likely you feel like your world is collapsing. Months later when you finally gather the strength to call a lawyer your anger is just beginning; but most of all you want compensation for the devastating loss you've suffered. And shouldn't you be entitled to compensation for the emotional ordeal you've been through -- and will go through for months, years, even decades? Not in New York or New Jersey you're not.



You probably didn't even realize it happened, or that it was even an issue. But back in January Governor Jon Corzine of New Jersey told New Jersey families what he thinks about their right to be compensated for their mental anguish for loss of a loved one resulting from another's negligence. His opinion? Their lives are worthless. At least that's what can be inferred from his pocket veto of a bill passed by both houses of the New Jersey legislature that would have expanded New Jersey's wrongful death law to permit families to recover for mental anguish and emotional pain and suffering resulting from such a loss.



New York's and New Jersey's laws regarding compensation for loss of a loved one are very similar. The simple version is this: damages for loss of economic support are recoverable, but damages for emotional anguish -- the palpable, devastating heartbreak of losing a loved one -- are not. Governor Corzine could have changed that for New Jersey families but failed. The Governor's reason? "I do not believe that this bill in its current form strikes a fair balance that would avoid using a strict monetary valuation of a person's life while also addressing the adverse effect of allowing unlimited and unpredictable damages." In other words, the Governor is more concerned with protecting New Jersey businesses and municipalities than he is with protecting families.



Governor Corzine did add that he would consider a revised version of the bill that contains certain restrictions, such as allowing courts to reduce excessive awards. This is simply more political doublespeak. Trial Judges and appellate courts routinely reduce excessive awards; there is no need for special legislation to give Judges such power.



The bottome line: next time Governor Corzine says he's concerned with New Jersey families remember this veto.



Outraged? Go to http://www.nj.gov/governor/ and write to Governor Corzine. Click on "Contact the Governor" and follow the instructions to send an email on current issues.