For he is not a potted plant
I'm
too tired to think of anything to blog about. Fortunately, when I
checked my email I found the permission to post the following email
response to my recent post "Res Ipsa Loquitur",
written by an actual lawyer working in America. In my media-perturbed
mind, I visualize this reader as a character in a John Grisham novel.
On the other hand, the Anonymous Lawyer
might probably point out that if you have time to read and comment
blogs, you won't be making partner any time soon... but who am I to say
anything here?
You're a little off-base about our tort system, although I understand the prevalence of your view. First, the "employment discrimination" laws are crap, as you point out. But this is based on our screwed up American race relations, which sees racism in whites where there is none, and admits no statistical difference in the races. Hence, as you mentioned, if a pre-employment test has a "disparate impact" on minorities, the burden shifts to the employer to show that the test measures only skills essential to the task. How can there be discrimination without discriminatory intent? There can't; it's a legal fiction.
But this press for tort reform is garbage, too. Litigation is extremely expensive for plaintiffs. If you're seriously injured, your costs in expert (read: medical doctor) fees and the like will be $50,000-$100,000. Can you afford that? I can't. Therefore, you have to find a lawyer who will front the money on your behalf. Think of him as an investor; he sure does. Believe me, guys aren't just gambling out here with that kind of money; if your case isn't a pretty clear-cut winner, good luck finding a lawyer to take your case on contingency. Now, what's the result? Typically, only the more meritorious injuries get representation. (It's not just merit, either, but the severity of the injuries. Are a few fingers worth more than $10,000 to you?) Obviously, charging by the hour would remove this inherent anti-frivolity property. That's the situation at the plaintiffs' bar. Now let's look at the defense bar.
Civil defense lawyers get paid by the hour. They don't care if the case has merit; in fact, the more merit the case has, the more defense lawyers are needed. Their objections are endless, as the more they do so, the more they get paid. They obstruct. Their goal is actually to drive litigation costs up, hoping to force individual plaintiffs out of the game (among other things, by deterring lawyers from taking the case on contingency). The more they obstruct and drive costs up, the more value they have to corporate clients.
Now, punitive damages. The U.S. Supreme Court in State Farm v. Campbell (or is it Campbell v. State Farm?) held that punitive damage awards in excess of a 9:1 ratio as against actual damages suffered violates substantive due process. It's not "sky's the limit" over here. Besides this, Federal courts have inherent power, called remiittitur (no, that's not a typo), to reduce punitive damages awarded by juries. States have enacted further restrictions on damages. My own state has some pretty draconian stuff, all things considered. You can only get $250K in non-economic damages no matter what. In some cases, such as when a person is born totally f'd up by a doctor's negligence, that person's lost earnings for their lives are "too speculative" to qualify as economic damages. Does that mean they should get nothing? If it's only negligence, there's no basis for punitive damages, so that case isn't worth too much. Most lawyers won't touch it. And how is that disabled person to live on that kind of money? I'm a political conservative, big-time. But this tort-reform bandwagon is just contrary to the way the legal world works.
Another reader from Britain has the following scoop:
So it's all over for Heather Mills McCartney. She has survived much but she won't be able to survive the avalanche of mud that has engulfed her in recent days.
Two weeks ago she separated from Sir Paul and the mud machine has been pointing in her direction ever since.
Someone not well versed in the ways of the British tabloids and who has read some of what has come out might be wondering why it has taken it so long?
But there is a curious phenomenon here whereby the papers lay off someone if that person is riding high - Princess Diana was a great beneficiary of this. Her promiscuity was well known for years before she chose to make it public.
But if that celebrity becomes wounded for whatever reason then the tabloid crocodiles slide into the water. And so it has been with Heather Mills McCartney.
The rough outline of her background was no secret. Everybody knew that when she was younger she spent far more time in the company of rich Middle Eastern men than might be wise for a young lady of no obvious means of support.
A few papers and programmes dropped hints but none of the muck seemed to stick. No -one risked going further. Who would want to take on Paul McCartney in the UK courts where the deepest pockets win?
But all that changed when McCartney dumped her. See the following:
www.newsoftheworld.co.uk
http://www.thesun.co.uk/
Nevertheless she is a fascinating study in self-invention. She clawed her way to riches using techniques no different from many young girls about town in London. The only difference was that she effectively won the lottery in the shape of Paul McCartney.
Ironically none of it would ever have happened had she not stepped in front of a police motorcycle. The resulting accident led to the loss of her leg but it also led to a huge opportunity.
For the taboids could not resist the glamourous buxom blonde with a missing leg. Not just a dumb blonde but a victim as well. A victim with a physical impairment that didn't stop her being blonde and buxom.
She saw her chance and took it. Soon Heather was never out of the papers. Here was Heather visiting sick kids in hospital, campaigning against landmines, encouraging schoolgirls to believe in themselves, visiting endangered elephants in Africa accompanied by a TV documentary crew.
It was a textbook exercise in the commodification of victimhood and Princess Di herself could not have done better.
(Incidentally you might be wondering why landmine victims is the cause of choice for so many famous ladies. The reason is that the victims are often children and wonderfully photogenic while at the same time able to show off a stump or two. Napalm victims for instance would be no use at all as one charity lady explained to me. "Too horrific" And when I suggested that dysentery killed far more Africans than landmines the charity lady held her nose in disgust.)
Anyway Heather was already quite famous when she met Paul at - where else - a charity dinner. He apparently found the mixture of apparent innocence with street-hardness very appealing.
Ironically it may have been her rock solid self belief untainted by much connection with reality that proved to be her undoing.
For in continuing to reinvent herself as a combination of Linda McCartney, Princess Di and Mother Theresa she seems to have become totally unhinged. Her interventions on behalf of PETA, vegetarianism, and many other right-on concerns became exasperating.
Two court battles loom. One will be for the McCartney millions. Expect more dirt. Secondly she will hopefully try and sue the newspapers that have exposed her. In doing so she will be up against incontrovertible evidence. It will be the libel action of the century.
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