ThePopTort

California Rights a Terrible Wrong

Patient advocates at the White House fighting MICRA's spread nationally, 2010

As the saying goes, “a lie can travel halfway around the world while the truth is still putting on its shoes.” Well, when it comes to California’s 1975 brutal law that severely caps (at $250,000) non-economic damages for injured patients – even catastrophically-injured children – the shoes are finally on. At least in part.

Reports indicate that California’s medical industry has finally realized that the falsehoods and nonsense used to justify opposing even an small inflationary increase to this cap after nearly 50 years, weren’t working anymore. Between a threatened ballot initiative to raise the cap and more, a very smart organizing and media campaign, and some skillful lobbying by advocates, they finally gave in, agreeing to an inflationary adjustment.

Yet this law should never have come to be in the first place.

In 1974, a bunch of insurance companies in California suddenly and drastically raised medical malpractice premiums on doctors with no data to support what they were doing. During this period, J. Robert Hunter, at the time the nation’s Federal Insurance Administrator, started examining whether this premium increase was caused by some huge jump in medical malpractice claims. Working with the National Association of Insurance Commissioners (NAIC), they found that there was no jump in claims and no justification for insurers to drastically raise rates. The fault lied entirely with an out-of-control and largely unregulated insurance industry. (Learn more here.)

President Ford (and later President Carter) resisted efforts to consider a national "tort reform" bill based on this research. However, the truth didn’t stop insurance and medical lobbyists. They zeroed-in on state lawmakers, spouting their false narrative, saying, “Don’t look at us for these astronomical rate hikes– blame the lawyers, lawsuits and juries!” With this rhetoric in hand, they used their economic clout to force many states to weaken civil liability laws. And it was all done with very little scrutiny by policyholders, lawmakers, the media or the public at large.

Perhaps most famously was California’s $250,000 cap law, the Medical Injury Compensation Reform Act, or MICRA. This cap has not increased one cent from the original $250,000 limit, despite inflation that has far more than quadrupled costs (“Had the cap had been annually adjusted for inflation, it would now be $1.3 million.”) Those hurt most by this law are children, stay-at-home parents, the elderly and poor, i.e., those whose economic damages tend to be less despite the fact that they have suffered grievous injury.

Governor Jerry Brown signed the MICRA bill in 1975, and then, realizing it was a mistake, repudiated it in a public written statement in 1993. But he cowardly failed to act to change the law when he became Governor again in 2011. Tragically MICRA kept harming the most seriously injured and needy children and adults who suffer from negligent (or worse) physicians and hospitals. And it has allowed the medical establishment to try to spread this cruel law to other states and even – unsuccessfully, thank goodness - to the entire nation in federal legislation.

MICRA has had terrible consequences for many innocent people, while doing nothing to improve the affordability of liability insurance for doctors. This new deal will raise the cap to $350,000, which would gradually increase over a 10-year period to $750,000 (more for death cases). Moreover, if both a doctor and hospital are found responsible, both can be liable for these damages, which is something not allowed under MICRA. It is a very big step to righting a horrible injustice. Kudos to all involved.

Tip-Toeing Into the Light

If you’re a fan of “The Office,” you may remember the story line of Michael dating Pam’s mom. And in particular, the scene where Michael first tells Pam about it. Michael softly whispers “It’s OK, it’s OK” while Pam gradually starts screaming her head off.

“It’s ok, it’s ok,” is something we’ve probably all whispered to someone, somewhere, at some point in our life. Today, I’m going to gently whisper this to two unlikely groups: the American Medical Association (AMA) and the “tort reform” crowd in Congress. They’ve both recently tip-toed over to the light from the civil justice dark side, and I’m here to tell them “It’s ok, it’s ok. Everything’s gonna be alright!”

First, the AMA. The other day, the AMA publicly admitted that the insurance industry’s predictable economic cycle is to blame for the recent round of medical malpractice insurance premium hikes for doctors. They said, “The medical liability insurance cycle is in a period of increasing premiums.” (See why that’s true here.)

The fact that they didn’t go on an unsubstantiated screaming rant about juries, lawyers, lawsuits, or claims stands in stark contrast to the AMA’s response to prior periods of rate hikes (and there have been three since the 1970s). Every other time, the AMA responded with a huge PR and lobbying campaign blaming the legal system for doctors’ insurance problems and pressuring for new “tort reform” laws as the “solution.” (See more here.) But they can’t do that now. I mean, I guess they could try, but they’d be laughed out of the room. Some states suffering through rate hikes still have pandemic liability shields in place, which immunize health care workers from liability. Jury trials ground to a halt during the pandemic and are still severely backlogged. And half the states with the highest med mal insurance rates limit compensation for injured patients (illustrating the true ineffectiveness of “caps” as solutions to this insurance-created problem.) So for a change, they’re trying honesty.

To the AMA, we say, it’s ok, it’s ok, it feels good to be honest about this, right? No more screaming rants. Help your doctors with real insurance-based solutions to their cyclical insurance problems. It's the only thing that works. Drop us a line. We have thoughts.

Second, hello Congress’ “tort reform” crowd! As we recently wrote a few weeks ago, a strongly bi-partisan anti-forced arbitration bill just passed the U.S. House by a vote of 335 to 97, and then passed the Senate unanimously. Now signed into law, this bill bans the use of forced arbitration clauses in cases involving sexual harassment and sexual assault. Congress’ landslide vote on this wasn’t just a “tip-toe” into the light, but rather a major jump. They were actually forced to admit that forced arbitration is not good for people.

It seems ridiculous for anyone to argue now, with a straight face, that forced arbitration clauses are good for people, in fact so great that for their own good, the public must be forced to agree to them. Nearly the entire Congress rejected that here. Obviously these clauses are as bad for sexual harassment and assault victims as they are for defrauded servicemembers, neglected nursing home residents, small businesses being squeezed by a conglomerate, low-wage essential workers being ripped off during a pandemic. Forced arbitration clauses have proliferated in all of these areas and should be outlawed.

So to all you “tort reformers” in Congress, it’s ok, it’s ok, stay honest about this. No more screaming rants about juries, lawyers, lawsuits, or claims. Remain over here with us, in the light, and with those who care about workers and consumers. Because it’s all coming up again, real fast. The House votes today on H.R. 963, the Forced Arbitration Injustice Repeal (FAIR) Act, which would ensure that all workers, consumers, servicemembers, nursing home residents, ordinary investors, and small businesses harmed by bad actors can bring valid claims in court.

Stay in the light and do the right thing. And if you’re still struggling with this, drop us a line. We have thoughts.

Forced Arbitration Is About to Shift Shape

I’m no historian but the amount of lying going on these days by those desperate to hang onto power seems unprecedented. Take the issue of forced arbitration clauses.

“What are forced arbitration clauses?” you may ask. Those are the ever-present clauses that corporations bury in fine print legalese “agreements” (that no one reads) when you get a phone or something online or even a job. Here's what they mean: if the company cheats, defrauds, discriminates against, harasses, physically injuries or otherwise harms you, you cannot sue the company in court or have a trial. Instead, you are forced to deal with the company in a private, secretive, rigged arbitration system controlled by the company. You may have to pay for the arbitrator. You can’t talk about what happened. And there is no right to appeal.

While the U.S. Supreme Court decision narrowly OK'ing these atrocious clauses in 2011 had a number of disturbing results, one of the weirdest was the shape-shifting of corporations into consumer and worker rights advocates! (Whatever demonic potion they've been drinking, keep it away from us.) More specifically, since that 2011 SCOTUS decision, corporate lawyers have stuck these clauses in everything because, they say they want to help you! You, the consumer! You, the worker! Not only are forced arbitration clauses good for you, they say, they’re so great that for your own good, you must be forced to agree to them! And if you don’t, no product, service, job or soup for you! (FYI we used to get our soup there and it’s all true.)

Well of course, nothing about any of this is good for you (except the soup – try the Mulligatawny). When we push back (see e.g., here, here, here), they say not only are we wrong, but we’re too stupid to know we’re wrong. But of course, we are not stupid and they are lying. And now Congress seems poised to help expose this lie for the first time in a very long while.

On Monday, an extraordinary thing happened in the U.S. House  of Representatives. A strongly bi-partisan bill, titled The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021, passed the U.S. House by a vote of 335 to 97. When finally passed by the Senate and signed into law, this bill will ban the use of forced arbitration clauses in cases involving sexual harassment and sexual assault. This will be the first major, permanent crack in the “forced arbitration” wall erected by SCOTUS more than a decade ago.

Because passage of this bill will help expose the lie from those corporate shape-shifters, its importance cannot be overstated – for survivors, for workplaces everywhere, for all of us. And it’s worth remembering that these clauses are as bad for sexual harassment and assault victims as they are for you the defrauded bank customer, you the neglected nursing home resident, you the small business being squeezed by some conglomerate, you the low-wage essential worker being ripped off during a pandemic. Forced arbitration clauses have proliferated in all of these areas and should be outlawed. But one very important step at a time.

Please tell your Senator to support this bill.  And if you need a little more convincing, please watch this video. #EndForcedArbitration!

#EndForcedArbitration from American Association for Justice on Vimeo.

It’s Med Mal Quiz Time Again!

Hey kids, it’s our favorite time of year – PopTort Pop Quiz time! Our first of 2022 on the important topic of medical malpractice and health care. I just know you've all been studying very hard. So let’s go!

1. What percentage of injured patients who win their cases actually receive what a jury awards them:

1. 100%
2. 70%
3. 50%
4. Less than 30 percent

The answer is "d." According to new research from 6 top medical malpractice researchers, 74 percent of patients receive less than what a jury awards “whether the wrongdoer is a physician, hospital or nursing home.” They say that there is a “large gap” between what juries award and what insurers actually pay, which is far less. Industry campaigns focused on jury verdicts are “disingenuous, based on an incomplete and potentially misleading factual foundation.”

2. The chance of a physician having to personally cover the difference between a large jury award and their smaller medical malpractice insurance policy limit is:

1. 100%
2. 50%
3. 25%
4. Less than 1%

The answer is once again “d.” According to the same new research from 6 top medical malpractice researchers, “in only 0.6 percent of cases did physicians make any out-of-pocket payments, and most of these were relatively small. Essentially, physicians’ policy limits are a hard cap on recovery.

3. A new physician survey finds that roughly 1 in 5 are considering leaving their current jobs to pursue a nonclinical career. The top reason given by physicians was:

1. Risk of being sued
2. General burnout
3. Need to reduce hours
4. The pandemic

The answer is “b" for burnout! According to the survey, risk of being sued is not a factor. And “only 7% put the blame for leaving clinical practice squarely on the pandemic.” However,“Burnout was most often cited as the primary reason for considering a change; 34% gave this reason. Twenty percent said they wanted to work fewer hours.” The risk of being sued is not a factor.

4. True or False: Most doctors who have been sued believe the outcome of the lawsuit was fair.

That would be “True.” According to a new Medscape survey, “A majority — 61 percent — of doctors who were sued “believed the outcome of their lawsuit was fair.” Moreover, “More than half of physicians who were sued reported that there were no attitude or career changes after the experience, which is consistent with results of prior surveys.”

5. When asked if they’d been sued for COVID-related negligence, what percentage of doctors surveyed in 2021 answered "yes, they had been sued":

1. 100 percent
2. 50 percent
3. 10 percent
4. 0 percent

The answer is “d.” When asked whether they’d been sued for a COVID-related allegation, 100 percent of respondents said no.  That's the "wave" of lawsuits some insisted was coming.

6. Surplus - the extra money medical malpractice insurers set aside over and above what they keep for expected losses - did what during pandemic:

1. Dropped
2. Stayed the same
3. Increased

The answer is “c.” According to the October 2021 issue of Medical Liability Monitor, thanks to a stock market windfall, the industry saw “a surplus increase of almost 3% in 2020, bringing total surplus to the MPL sector to more than $33 billion.” Astounding.

Bonus Question:

True or False: More than 140,000 nursing home residents have died from COVID-19.

Sadly, this is "True." According to the most recent government data, as of the week ending December 26, 2021, more than 754,500 nursing home residents had contracted COVID-19 and over 142,300 residents had died from COVID-19

Of course, all of this information and much more can be found in the Center for Justice & Democracy at New York Law School’s new briefing book, Medical Malpractice – By the Numbers!  Study up.  You never know when quiz time will pop up again!

Confidential Memo on "Judicial Hellholes" from Insurance Industry!

Looked what was just leaked to us!

-----------------------------------------

CONFIDENTIAL MEMO

To: American Tort Reform Association

From: Property/Casualty Insurance Industry PR Hacks

Date: December 6, 2021

Re: Good luck tomorrow!

I hope you know that we value nothing more than our friends in the “tort reform” movement, like you, who share our goals: getting politicians and media outlets on our side, demeaning judges who rule against us, and passing laws that take power and authority away from juries. Our methods may be different than yours: we engineer the unjustifiable price-gouging of policyholders until they scream, you issue an inane repetitive yearly “judicial hellhole report” designed to cause screaming! (More about that below.) But as our goals are the same, we thought you might benefit from our recent experience trying to attack judges and juries during a pandemic - since it looks like you are officially releasing another one of these reports tomorrow.

We should start by being honest and telling you that those screaming about your report aren’t quite what we’d hoped, and have instead presented some real PR challenges for our movement. The severity of attacks by legal scholars and media outlets even took us by surprise! Targeting jurisdictions with poor and minority populations probably doesn’t help either (although we do that all the time so who are we to judge?). Also, attacking local judges and juries seems un-American and unpopular to a lot of people. So, while you were already on thin ice with this “study,” there is now a whole new context to consider: the pandemic. The civil justice system was dormant for many months and is only now slowly coming back to life. Jury trials stopped, are still not happening in many places, and injured people can’t get cases heard. In other words, this darn pandemic has just wreaked havoc on our PR messaging!

We know this from experience. Let us explain. A few months before the pandemic, we began suddenly raising insurance rates on businesses (as usual) despite sitting on mountains of cash (close to a trillion dollar surplus now). For forty years, we followed a standard playbook: 1. Suddenly raise rates on doctors and businesses so they go nuts; 2. Falsely tell them that lawsuits, juries, lawyers and victims are to blame even though there is never a spike in insurance claims or lawsuits; 3. Lie to politicians, saying enacting “tort reform” is the only way to bring down rates; 4. Get "tort reform" laws passed that take power away from juries. This worked every time.

But our old tricks aren’t working now. In 2019 and 2020, we dutifully created a new insurance crisis, trying to follow the same playbook. We even thought up a convenient new term to blame for our price-gouging. We called it “social inflation” - a term we haven’t given up on yet, by the way. We thought this was a perfect PR device, a term so vague it can be used for everything we hate: policyholders who go court, “aggressive” attorneys who represent them, and local juries. But one thing we didn’t anticipate: COVID. COVID shut down the courts. Complaining about too many lawsuits and “out of control” juries suddenly made us look silly. And without that kind of PR hook, no one was screaming for “tort reform.”

Things aren't getting much better. In fact, thanks to the pandemic, civil cases are now completely backlogged. Civil cases are being put at “the end of the line,” and they are piling up. Judges – and there are simply not enough of them - are trying to prevent jury trials altogether, often for the safety and economic concerns of potential jurors. They are pressuring settlements like never before. So believe it or not, sometimes we’re the ones pushing for jury trials now! (As one lawyer put it, “We are finding that liability insurers and defendants, most of the time, will not waive their right to a jury trial…”)

Now I’m not saying you won’t be able to bamboozle some, shall we say, “gullible” reporters and editors to pick up your spin. For example, just look at the awesome, highly misrepresentative headline by media outlets (like here here) reporting on a so-called “record breaking” Nebraska jury verdict for a negligently injured, permanently-disabled child. We all know the family will receive only a tiny fraction of this verdict because Nebraska has a severe cap on damages for injured patients including children – a cap the jury was not told about. But this fact was barely mentioned in the articles. Kudos to whatever PR operation hoodwinked some lazy reports and editors on this one! But the media isn’t as reliable for us as it used to be. Take, for example, the very popular podcast “You’re Wrong About That.” Here’s what they tweeted when they re-ran this year their episode on the McDonald’s Hot Coffee case. They’ve turned our entire PR fabrication about this case on its head, just like the 2011 HBO documentary film Hot Coffee. 

Whatever happens tomorrow, we’ll have your back don’t worry. We just feel bad that your role in our movement has been reduced to releasing tired, discredited messaging about judges and juries who rule against your corporate members when they kill and injure people. Perhaps it's time to reevaluate?

A Civil Justice Top 10 Thank You List

Here’s our Thanksgiving gift to you because sometimes things do go our way and we need to talk about that! Everyone feel better, and Happy Thanksgiving.

1. Congress quit “tort reform.” For 15 years, there has not been a serious “tort reform” effort in Congress. That’s when, in 2006, the last of seven bills to cap damages for medical malpractice victims was brought to the floor and decisively killed in the U.S. Senate even though the “tort reform” party controlled Congress, “tort reformer” in chief George W. Bush was President, and members of Congress were under enormous pressure to succumb to medical and insurance industry pressure. (Doctors had been suffering through four years of unnecessary price-gouging by medical malpractice insurers.) That happened because civil justice advocates effectively pushed back. While the U.S. House may pass bills now and then, they now arrive DOA in the Senate irrespective of who's in charge.

2. Judicial progress. Yes, the federal courts were decimated during the Trump/McConnell years. But the Biden/Schumer years have made much headway turning things around. Quoting our good friends at the Alliance for Justice, “President Biden has already seen more judges confirmed in his first year than the past five presidents, and he shows no signs of slowing down. With each slate, we see his continued commitment to bringing more professional and demographic diversity to our courts.”

3. Support for civil justice is bi-partisan. The “tort reform” movement finds itself no longer fighting just its traditional opponents - Democrats and progressives - as they had been for the first 30 years of the “tort reform” movement. They are now fighting people of their own political party and conservatives – and they are losing. Conservatives helped stop a bad class action bill and federal tort reform, and are now supporting a bi-partisan bill to ban forced arbitration clauses for sexual harassment cases. Who thought we’d ever see that?

4. Forced arbitration is backfiring. Speaking of forced arbitration, who saw this coming? As we wrote last July, “Amazon decided to give up its ‘forced arbitration’ requirement and allow itself to be sued in court. Why?  Because they were outsmarted. Specifically, rather than dropping claims, more than 75,000 Echo users, who were very angry that these Alexa devices were recording them without permission, filed for arbitration, hitting Amazon with a bill for ‘tens of millions of dollars in filing fees.’” Yet smart lawyering isn’t the only trigger for this development. Other big companies, like Google, have also dropped their forced arbitration clauses following major grassroots organizing. The company-by-company approach can’t replace Congress’ much need action on the FAIR Act, but the public education that has surrounded these developments can’t be overstated.

5. Unlikely courts have struck down caps. While not every state supreme court has struck down caps on damages, several surprising decisions have done so in conservative states and/or in states where courts had earlier ruled differently (e.g., Kansas, Oklahoma, Oregon). As a result, less than half the states (24) have laws that specifically cap non-economic damages in medical malpractice cases, which is the most popular kind of “tort reform” proposal. And only nine cap non-economic damages generally.

6. Research comes through. Often the insurance industry can bamboozle politicians despite the best efforts of civil justice advocates. (See what just happened in Louisiana.) But enough time has passed since many “tort reform” laws have been on the books, that credible, in-depth academic research about the impact of these laws is possible. And it’s showing “tort reform’s” failure at every level. That’s true even when it comes to the most common “talking point” in support of such laws: bringing down costs. Caps on damages, for example, cause system costs to actually increase, not decrease! See the book Medical Malpractice Litigation: How It Works, Why Tort Reform Hasn’t Helped, written by six top medical malpractice researchers, published by the conservative Cato Institute, no less. And let’s not forget survey-type research, like this one from one “tort reform” lobbying group. They say that for small businesses, the issue of “lawsuits” is of less importance than almost any issue small businesses could possibly face, or on which they want lawmakers to focus. 

7. New media is smarter. Gone are the days when press releases from manipulative industry PR operations with a lot of money, sent to traditional media outlets, become the only way people hear about civil justice issues. If you want to see how that used to happen, catch the documentary film Hot Coffee, which showed the destructive impact of that PR machine. But there is much more skepticism these days, and many more popular outlets want the truth. Take, for example, the very popular podcast “You’re Wrong About That,” which consistently ranks at the top of podcast episode and show lists. Here’s what they tweeted when they re-ran this year their episode on the McDonald’s Hot Coffee case which (like the film), debunks many anti-civil justice myths about this case: “This is by far our most requested episode! We're a little reluctant to do it simply because the ‘you're wrong about’ narrative is so well-known at this point. But maybe it's worth looking into anyway!” It's not the mid-1990s anymore.

8. Insurer price-gouging not working for them. Volcanic eruptions in insurance premiums for commercial customers (businesses, doctors) occurred the mid 1970s, again in the mid-1980s, and the early 2000s. While lawsuits had nothing to do with why premiums suddenly jumped, each time the industry responded by successfully pushing states to enact “tort reform” laws stripping victims of their legal rights. Now we are in the fourth such cycle. Insurance prices have been rising since 2019. But unlike in the past, today insurers have been unable to exploit their own mismanaged underwriting to push for similar “tort reform” laws. Why? Perhaps it’s because no one believes lawsuits caused insurance premiums to rise in a year when the civil courts and juries were essentially shut down. Or maybe it’s that the industry is sitting on a record-breaking trillion dollar surplus. Or maybe, people are just wising up to how this dishonest industry operates..

9. Law students emerge as a force. Law students have never been more politicized and active on civil justice, corporate accountability and court issues as they are now. People's Parity Project has emerged as a critical new voice on these issues, growing out of a movement at some of the top law schools in the nation. The [F]law is a new publication from Harvard Law School students, with a mission “to share stories that reveal how corporate law and power create social problems and systemic injustices.” And there’s been a huge jump in law school enrollment due to a number of factors including “continuation of what is called ‘the Trump bump’” and “what happened in 2020 — including the police killing of George Floyd and the racial justice movement that arose from it — spurred more applicants, she said, as did the death of Supreme Court Justice Ruth Bader Ginsburg and the confirmation of a controversial successor.” Can’t wait to see what these students do when they make it into the workforce.

10. Finally, we are thankful for everyone who pays attention to ThePopTort, the work of the Center for Justice & Democracy, and all the amazing advocates we work with. Have a very Happy Thanksgiving!

Harry Houdini Has Nothing on the Pharmaceutical Industry

Poll question: Who’s the greatest escape artist of all time? Harry Houdini? Criss Angel? After this week, I’m going with the drug industry (which the Center for Justice & Democracy writes about in its new report, PILLS; Big Pharma, the FDA, and Problem Medicine). Let’s review.

Escape Trick #1: It has been remarkably difficult to hold gigantic drug companies legally accountable for creating the public health disaster known as the opioid crisis. Criminal laws and sanctions fall vastly short. Even if criminally liable, you can’t throw an industry in jail. Yet in terms of the number of deaths and the costly toll on local communities – law enforcement, health care systems, etc. – the harm has been staggering. So states and communities have had to get creative.

They thought they had it, at least in one state – Oklahoma, where state officials said the industry (and in this case, Johnson & Johnson) was liable for creating a “public nuisance” - that being oversupplying opioids to the state. Lower courts agreed. But this week, the Oklahoma Supreme Court threw out the public nuisance case, ruling in the drug company’s favor. A California lower court had done the same thing earlier this month. This isn’t the end of opioid litigation or settlement talks, of course. But now a major legal theory, one with real promise for holding accountable the pharmaceutical industry for this crisis, may be dead.

Escape Trick #2: In October, Johnson & Johnson, with a net worth of about $420 billion, filed for Chapter 11 bankruptcy in order to cheat customers it poisoned with asbestos in J&J talc powders, including baby powder. This was after engaging in a decades-long cover-up of this corporate crime. Rather than face its victims in court, J&J has decided to take advantage of a loophole in Texas law that allows companies to split in two - one with all the company’s assets, the other with all the liabilities for the harm they caused. The company with all the liabilities then filed for bankruptcy and some tens of thousands of claims got dumped into bankruptcy court. Sick and dying victims became nothing more than creditors in a bankruptcy.

Interestingly, J&J filed for bankruptcy in North Carolina for no reason other than they assumed they’d get a favorable judge there. Fortunately, the NC judge kicked the bankruptcy case back to J&J’s home state of New Jersey where it belongs - along with a 60 day stay so a new judge can get “up to speed.” We will see what happens. Meanwhile, Congress is also trying to deal with this kind of bankruptcy abuse, with legislation supported by more than 50 groups to prevent companies from using bankruptcy laws to escape responsibility to customers they harm or kill.

Interestingly, this isn’t J&J’s only “split” of late. It’s also now splitting its health care products from its pharmaceuticals. Not sure what the escape plan is with this move, but I’m sure they’re up to something.

What is Reuters Doing Here?

No, this isn’t a blog about a frivolous lawsuit being filed against a small nonprofit group (us). There was no lawsuit and based on what we know about this situation (that would be a lot) there never would be - but there was certainly a threat.

This is a blog about a news organization - Reuters - that seemed to license one of their photos to a large and wealthy foundation – the World Economic Forum - which represented on its Wiki Commons page that they obtained access to this photo with Creative Common rights so others could use it in their little blogs. (See excerpt from this page).

Licensing photos with Creative Common (CC) rights is something WEC seems to take pride in doing and something that we would otherwise appreciate. Did they fail to do it here despite what they represented? I guess we will never know. 

Because when told Reuters came after us for using one such photo, WEC failed to help (or even respond) and allowed a company working for Reuters to demand that we not only take it down, but also pay an exorbitant fee for “past use,” threatening to refer the case to a law firm and “wait until you see the fees they’ll charge you!” (Although it could have been worse. In the tradition of the finest used car salesman, the company placed a sticker on the payment website offering an enticing 40 percent discount if we pay now.)

We were given 10 days to pay or else. It did not matter that the Reuter’s rep failed to even try to find out if WEC obtained access to this photo on the condition that they obtained CC rights, as they represented. Of course Reuters would also have this information. On this point, both organizations blew us off.  

It did not matter that the Reuter’s rep refused several requests from us for proof of the photo’s copyright registration, an expensive and often not-taken step which is a pre-requisite to suing as explained in this recent LA Times piece about celebrity photos (we hear you Lisa Rinna).  

Nor did it matter that the law considers it to be copyright abuse to not first consider our “fair use” claim before sending a “take-down” demand.

So what is Reuters doing here? And for that matter, what is the World Economic Forum doing?

My advice for anyone interested in engaging in the marketplace of ideas: stay clear of (and shame on) both.

Where Have All the Juries Gone?

There’s an enlightening and engaging new article out from UC Berkeley School of Law’s Civil Justice Research Initiative, called The Civil Jury: Reviving an American Institution. Written by renowned jury and civil justice experts Valerie P. Hans of Cornell Law School, Bob Peck from the Center for Constitutional Litigation, and Richard L. Jolly of Southwestern Law School, the piece consolidates some of what we’ve known about the history and importance of this “pivotal institution,” and updates it all with recent information about the worsening anti-civil jury trends in today’s world. They also makes common sense suggestions about how to reverse this troublesome situation.

They write:

[L]egal, political, and practical attacks and challenges over time have hollowed the constitutional promise and role of the civil jury. As noted herein, these include:

• Procedural changes stripping juries of their fact-finding authority and empowering legislatures and judges in ways beyond their expertise and constitutional role

• Political and social elites, buoyed by moneyed interests, engaging in a decades-long campaign to denigrate the democratic role of juries in civil dispute resolution

• Recently, COVID-19’s unique constraints on the empaneling and use of civil juries, grinding trials essentially to a halt

Here’s the shocking result (footnotes omitted):

Starting in 1962, the year when federal judicial statistics become most reliable, a consistent decline has been readily apparent in the percent of civil cases disposed of by jury trial. That rate was 5.5% in 1962; 3.7% in 1972; 2.6% in 1982; 1.9% in 1992; 1.2% in 2002; 0.81% in 2012; and finally reaching its nadir of 0.48% in 2020. A similar pattern has been experienced in state courts. In those states that kept accurate statistics, between 1976 and 2002 civil jury trials fell threefold from 1.8% to 0.6% in courts of general jurisdiction. And the most recent data from the Court Statistics Project shows that of those reporting states in 2019, juries disposed of a median of only 0.09% of civil disputes. Simply put, civil jury trials are the very rare exception and not the rule.

Indeed, “The majority of civil disputes today are resolved not by laypeople serving as jurors but through private and publicly funded settlement and arbitration proceedings.” And as we know, arbitration as a method of resolving important disputes is generally not chosen by harmed consumers or workers, but is rather forced on them by the very companies that hurt them. (Here’s our most recent post about that.)

What we also found interesting was how the authors connect this to a far broader trend, i.e. attacks on our democratic system of government. Take note anyone who cares about our nation’s recent precipitous slide towards anti-democratic laws and institutions. They write,

Still, in this time when the future of American democracy is in greater peril than we have ever experienced in our lifetimes, which coincides with our slow emergence from the ravages of a life-changing and deadly pandemic, we cannot forget that jury service provides a form of public participation and grassroots governance that the Founders considered as important in maintaining a democratic republic as voting itself.

Also, take note anyone who is wary of centralized government and privileged classes, and believes in juries as the essence of local governing. No matter ones political perspective, it should seem dire that the “civil jury has fallen into disrepair and neglect, ceding authority reposed by the Constitution in the people to unrepresentative judges, legislative bodies with little regard for our system of justice, and private actors who have locked the courthouse doors.”

The article debunks many myths about civil juries and then proposes some reforms, “focused on removing barriers to jury access and enhancing fair and accurate jury fact-finding.” These reforms include:

• Eliminate legislation capping the jury’s damage-setting authority
• Expand the use of innovative procedural tracks, such as expedited jury trial projects
• Ensure that juries represent the communities from which they are drawn
• Require the use of twelve-person civil juries
• Adopt active jury reforms

 Given the breadth of support for the civil jury system from all sides of the political spectrum, these should be no-brainers.

September 11, Two Memos

Twenty years ago, the PopTort’s offices (at the Center for Justice & Democracy) were just blocks from the World Trade Center. As part of what we remember that day and during that month, here are two emails that we sent to CJ&D’s friends in September 2001. We weren't sure we'd make it but we did, thanks to all the wonderful support we received. We are grateful. (Photos are near CJ&D offices, taken by Joanne Doroshow, September 16, 2001.)

Memo 1

To: Friends of the Center for Justice & Democracy
From: Joanne Doroshow, Executive Director
Re: An overwhelming experience
Date: September 16, 2001

Our office is several blocks from the World Trade Center, and I went there today (Sunday) for the first time since September 11 to retrieve some things.  I was allowed there because we are in an area, close to the New York stock exchange, that is in relatively good shape. It was an overwhelming experience.  The air was bad, buildings were still covered in soot, police, utility workers, troops in camouflage wearing gas masks were everywhere.  I left the area as quickly as I could. 

Our hearts go out to our Lower Manhattan neighbors who lost so many people.  We are also terribly sad for the small businesses that may not survive, like our printer, Fitch Graphics, almost directly across the street from the WTC, and Big Apple Copy Center, also very close to the towers.  The people who work there are wonderful -- both had been doing major jobs for us at the time of the disaster. 

In addition, several Center for Justice & Democracy supporters have law offices in the direct vicinity of the WTC.  Out of respect for their privacy, I won’t mention their names here.  But please know that for now, the lives of everyone working in this area has been monumentally changed. 

I would like to note with special appreciation the staff of the New York State Trial Lawyers Association, whose offices are 3 or 4 blocks from the WTC.  Last Tuesday morning, I was on my way to check our post office box mail when the planes crashed into the WTC.  Our post office, Church St. Station, is right across the street from the WTC.  I ran to the NYSTLA office because it was very nearby -- closer than my own office -- and stayed with the staff through the harrowing collapse of the WTC, our eventual evacuation and the 5 hour ordeal to get uptown and home. 

After the first building collapsed, NYSTLA staff opened their offices to people from the street who were trying to escape suffocation.  They ushered people into their CLE classroom, offering them water, snacks and access to news.  At the time, NYSTLA staff did not know whether there would be enough oxygen for themselves, let alone another 50 people.  But they allowed people in nonetheless, keeping them safe through the second building collapse, and until NYSTLA eventually evacuated. The NYSTLA staff deserves to be commended for this. I thank them very much. 

Like all businesses and non-profit groups around us, our work routine has been permanently disrupted and only time will tell what the lasting damage may be.  I hope not much, but we may need to call on our friends for a little help.  At a minimum, some of our work has been put on hold.  But we hope to be back in our offices, full-time, later this week.  Thanks so much to everyone for their thoughts and concerns.

Memo 2

To: Friends of the Center for Justice & Democracy
From: Joanne Doroshow
Re: An Update
Date: September 21, 2001

Lower Manhattan is gradually coming back.  For the first time, I saw no troops on my way to work this morning.

Yesterday was the first day one could get close to the World Trade Center area, especially the Southeast corner.  It's hard to describe so I won't try.  I was there because it's where the subway stopped.  Sadly, this is our neighborhood.  Still no electricity on one side of the street.

As far as our post office is concerned, that's over.  It will be at least a year before that opens again.  Miraculously, the building is still standing.  We must go to the main post office -- 33rd. and 8th Ave. -- to get our mail now.  But when I went there yesterday, even though I had to stand in a long line, it was all worth it when the goofy guy I usually deal with at our old post office appeared.  I was just so happy to see that he made it.  Same goes for our printers who came by yesterday.  They have a satellite office and they are trying to survive. Their main offices were destroyed, and their employees witnessed horrors that are unbearable to mention, but tragically not unusual.

There's been a noticeable change in all New Yorkers.  As someone said, people seem human again.  Everyone's helping everyone, no one complains.  But there's also an quiet sadness over everyone and everything, especially down here.

We are all back to work again.  Our phones and email work intermittently, so if you are having a hard time getting through, please keep trying.  Hope all is well where you are.