ThePopTort

Welcome to Insurance Isle!

There is something particularly unseemly in how the property/casualty insurance industry has used its power to get rich off the COVID crisis. Not that insurance industry observers would expect anything less. This is an industry that never saw a crisis it didn’t try to exploit. In fact, after 9/11, the Center for Justice & Democracy wrote a whole paper on this very topic, called Shakedown: How the Insurance Industry Exploits a Nation in Times of Crisis. Pretty much a running theme over here.

Before COVID, the industry was in the early stages of deceiving businesses, consumers, and regulators about its financial condition in preparation for creating a national insurance crisis of skyrocketing rates. This, mind you, was while it was sitting on more cash than at any time in its history. “Juries were out of control again so your premiums have to go up,” the industry started saying. Juries, victims, and lawyers were suddenly creating an urgent need for insurers to price-gouge. (See a complete explanation here.)  

This is the same script they have used for the last 40 plus years to justify each prior liability insurance crisis, and what many experienced as a volcanic eruption in insurance rates. There have been three such "crises" before now.

It's easy to see a familiar yet bizarre pattern. To buy the industry's position, one would have to accept the notion that lawyers and juries were particularly aggressive in the mid-1970s (when rates shot up the first time), then stopped for a decade, then became aggressive for three years in the mid-1980s (when rates shot up a second time), then stopped for 13 years, then got all aggressive again from 2002-2006 (when rates shot up a third time), then they stopped for 13 years, and now, 13 years later, are aggressive again. Do they think we're that dumb? Who can't see an insurance industry cycle at work, which by the way is well recognized by the industry but they don't talk about it much. And to be clear, this cycle has nothing to do with claims or payouts. Actual data show those have remained stable throughout. (Why this cycle happens is all explained here.) But data and facts never stops the industry from trying to bamboozle the public. So in 2019, rate hikes accompanied by a new anti-jury crusade, began again.

But then COVID hit. Courthouses shut down. Jury trials stopped. People stopped driving, People drastically cut down on non-essential medical care, like elective surgeries, while at the same time most states passed laws immunizing hospitals and nursing homes from liability. Whoops! Now who’s gonna believe that backlogged juries, non-existent victims and lawyers who can’t get their cases heard, are driving rate hikes? Pile onto that the fact that insurers, who had already put virus exclusions in many commercial policies, indeed refused to pay virus-related business interruption claims and fought businesses in court while still marching down to Washington demanding a bailout (just in case they needed it) much like they did after 9/11.

Turns out, an insurance bailout isn’t what anyone needed from government officials. What was needed was someone to look at their books. Not only did they not refund money as they should have, they kept raising premiums while everywhere, claims dropped. Their profits doubled, their surplus (the extra money over and above what’s need to pay claims) ballooned to nearly 1 trillion dollars. Now it looks like they even hid profits in bloated reserves. Yet they are STILL raising rates.

And it’s not like we and other groups didn’t scream that this was exactly what was going to happen. (Can state regulators please start taking consumer groups seriously?)

Ha, I do sound a bit angry but actually I’m over it. I’ve decided it’s time reconsider this industry with the level of mockery it so richly – and I mean RICH-ly deserves. With humor. These people are a comedy show.

So in keeping with that theme, we present to you Insurance Isle, the latest from the Center for Justice & Democracy, who say: 

[We] decided to offer Insurance Industry Fat Cats a “safe” place to go so they can enjoy their outlandish profits in peace while commiserating with other Fat Cats.

But don’t worry, our extensive sourcing puts the lie to everything they say. And our funny illustrations help make the point.

So spend some time with us on Insurance Isle, where you can "Relax at Profit Beach." "Hoard Your Money at Pirate's Cove." "Shop on Spin Boulevard." "Chill While Our PR Experts Do the Work (Social Inflation Anyone?)." "Spend Hours at Whiner's Warf." Learn how auto insurance companies worked the pandemic for maximum greed, er, bliss. It’s sure to put a smile on your face – unless, of course, you’re an insurance company.

Download the brochure - and learn all about Insurance Isle here.

Civil Juries: Crushed by COVID

There a Radiohead lyric that goes “Let down and hanging around; Crushed like a bug in the ground.” I know there are a lot of ways to describe what happened to the civil jury system this past year but for some reason, squishing a fallen insect comes to mind.

As many have written, insects are an incredibly important part of our ecosystem. The “the lever pullers of the world,” some say. Hardly a nuisance, and we’d be dead without them. 

Similarly, civil jury trials – especially those deciding cases by people who have been wrongfully harmed - are a crucial part of our justice system. The U.S. Constitution was nearly defeated over its failure to guarantee the right to civil jury trial. (The Seventh Amendment eventually resolved the problem.) The right to jury trial has been secured not only by the U.S. Constitution, but by every state as well.  

But over life of the nation, the number of civil jury trials dropped precipitously. Even before the pandemic hit, for example, juries resolved, on average, less than 1 percent of state civil cases as well as state tort cases. The reasons for this, as described by Shari Seidman Diamond and Jessica M. Salerno in their 2020 law article, “Reasons for the Disappearing Jury Trial: Perspectives from Attorneys and Judges,” include both enactment of “tort reform” laws that limit the power and authority of juries, and forced arbitration clauses that demolish juries altogether:

For civil cases, 61.6% of respondents who practiced in jurisdictions with damage caps… said they played a medium or large role in making jury trials less appealing.…

Fifty-two percent of judges and attorneys also pointed to mandatory arbitration as having helped drive down the frequency of jury trials.

Many courts offer voluntary arbitration, overseen by a neutral mediator who is an expert in the pertinent legal issue. A growing number of companies have begun making this process mandatory for employees and consumers by including binding arbitration clauses in contracts.

“On average, workers who pursue legal claims through arbitration are less likely to prevail, and they receive smaller awards than those who pursue employment claims in court,” wrote Diamond and Salerno.

Already at a low point before COVID, now they’ve nearly or completely disappeared in many places. In an op ed in Maine’s Press Herald, Benjamin Gideon recently wrote:

When the pandemic struck last spring, Maine courts abruptly stopped conducting jury trials. It was an understandable measure to protect judges, litigants and jurors. At that time, no one yet knew how to adapt to the pandemic.

Less understandably, more than a year later, our civil justice system remains shuttered.…

Not only has our judiciary failed to implement strategies to resume civil (and for the most part, criminal) jury trials, our Supreme Judicial Court issued an order prohibiting trial judges from using their own ingenuity to find a way to conduct civil jury trials.

Now, as our courts are finally attempting to reopen, they face a dizzying backlog of criminal cases, which, the judiciary says, prevents them from holding civil jury trials. …

What’s more, insurance companies have done nothing but take advantage of this situation by refusing to settle cases. In New York, for example,  

Because there are no trials — except for a select few cases that went to trial last fall — insurance companies and defendants have little reason to settle beforehand, a common way to avoid juries awarding more money, lawyers say.

Insurance companies and defendants have instead dragged their feet and refused to pay out in some cases, which could force people to settle for less if they’re desperate for cash, according to lawyers in the field.

“The delay of jury trials brought on by COVID-19 has exacerbated what was already an untenable situation for New Yorkers seeking to exercise their right to civil justice,” said state Democratic Sen. Brian Benjamin.

As Mr. Gideon writes, “I am concerned that we will come to accept the misguided notion that the right to a civil jury trial is a luxury rather than a basic right established by our constitution.”  Yep, James Madison would be seriously bugged by that. 

Insurance: The Essential Guide to a Bewildering Industry

Are you sick and tired of the property/casualty insurance industry? What I mean is, are you tired of the P/C insurance industry using endless amount of confusing data that no understands, and then asserting its “superior knowledge” of insurance to make all kinds of demands on the rest of us? Like raising our rates, denying our claims, or lobbying for laws that strip us of our legal rights, all while blaming everyone but themselves?

Well, the Center for Justice & Democracy says, “no more!” CJ&D has figured out a way to help explain this industry while keeping you appropriately entertained because, let’s face it, insurance sometimes can be a little boring. But not to CJ&D. They’ve developed a fun (yep, very fun) new manual called, Insurance: The Essential Guide to a Bewildering Industry. Or just go to InsuranceFatCat.com for a look.

This manual is fully illustrated (by Austin's Jason Stout) using a very appropriate Fat Cat motif, and includes sections like, “Crying All the Way to the Bank,” “Hiding Wealth with Tricks and Loopholes,” “Anyone Else Would Go to Jail,” and “When Words Aren’t What They Are.”

It is easily shareable both as a printed document and online. So spread the fun. And don't take their *$%# anymore.

PopTort PopQuiz, Home Edition

Kids, I know many of you are still working from home and have had it about up to here with remote learning by now. So let's try something fun: a new PopTort PopQuiz! Thanks to the Center for Justice & Democracy's new updated medical malpractice briefing book, we have all kinds of new info about what’s going on in the world of unsafe health care. (Yikes!) Enjoy!

1. True or False: Researchers who extensively reviewed physician surveys, clinical scenario studies and case data analyses found a good deal of support for the notion that the practice of “defensive medicine” (doing costly and unnecessary tests and procedures for fear of being sued) pervades the American healthcare system.

Answer: False. Rather than a good deal or even a fair amount of support, they found “little support” for this notion. They added, “Consequently, reforms of tort law are unable to make much of a contribution to bringing down America’s unusually high healthcare costs.”

Nor, it turns out, will “tort reform” impact doctors’ insurance rates. That’s the conclusion of still other researchers!

2. Liability concerns are often blamed for too many C-section births in U.S. hospitals. When researchers compared the number of C-section births in military hospitals (where doctors have no liability) to those in private civilian hospitals (where doctors can be held accountable for medical negligence), they found that C-sections are:

a. 50 percent more common in civilian hospitals

b. 20 percent more common in civilian hospitals

c. 5 percent more common in civilian hospitals

d. More common in military hospitals

The answer is “d.” Researchers found: “C-sections are about 4 percent more common during the deliveries at military hospitals, compared to the times when mothers in the Military Health System deliver at civilian hospitals.”

3. The primary driver of physician shortages are (select all that apply):

a. More doctor demand due to population growth

b. More doctor demand due to an aging population

c. More doctors retiring

d. Malpractice insurance rates

e. Liability (tort) laws

Answer: If you selected a, b, or c, you would be correct. If you picked d or e, you’d be wrong. This is according to the work of the Association of American Medical Colleges, no less. 

4. Bonus Question: It’s your surgeon’s birthday! It’s a good idea to:

a. Share the celebration by having surgery that day

b. Stay clear of any treatment from your surgeon that day

c. None of this matters - what a ridiculous question

Answer: Ha, you wish it didn’t matter. The answer is “b”. Stay away. According to research, the “30-day mortality rates are approximately 23% higher for patients 65 and older who are treated on a surgeon’s birthday.” 

Mitch McConnell’s Irony?

Remember when one of the biggest controversies of the year was whether any of the situations described in Alanis Morissette’s song “Irconic” were actually ironic? Irony is not easily defined and is often mistaken for other things. So let me run a situation by you, and you tell me if it seems ironic to you.

By now, you all know the outcome of last week’s impeachment trial. Probably just as likely, you heard about Senate Minority Leader Mitch McConnell’s speech tearing into Trump even though he voted to acquit. As part of his speech, he made sure to remind everyone about the importance of both criminal prosecution and civil litigation to hold Trump accountable. Most recognize that this speech was a politically-convenient way for him to justify the Senate’s failure to convict. But also, it seems ironic for him to be laying the survival of our democracy on a system that, for decades, he has made it his work to weaken or destroy … no?  

McConnell is not your average civil justice opponent. He’s the Senate’s leading “tort reformer”. We first noticed this when, in the late 1990s and early 2000s, McConnell led the fight to federalize the nation’s auto insurance system. His bill, euphemistically called the Auto Choice Reform Act, basically would have forced motorists into one of two unfair insurance systems, one of which would have deprived seriously injured victims of adequate compensation.  

From the mid-1990s through the 2000s, Sen. McConnell repeatedly introduced his “McConnell Amendment” to health care bills. This amendment proposed that Congress federally take over all 50 state tort systems, all for the purpose of severely limiting the rights of injured patients and nursing home victims to hold facilities, drug companies, hospitals and HMOs accountable in court.

His proposal to replace Obamacare was “tort reform.” His response to the COIVD pandemic was “tort reform.” In fact, in 2020, he blocked COVID relief legislation by insisting on broad and long-lasting corporate immunity provisions (as we covered somewhat humorously last July). Luckily, all of these failed.

So when Sen. McConnell said last week, “He didn’t get away with anything, yet. … We have civil litigation,” was he being ironic or just hypocritical?  And will he support the range of cases that are now being brought, including one just filed by House members for compensatory and punitive damages over violations of the 1871 Ku Klux Klan Act? 

Hope so. But I’m not holding my breath.

Repost: America’s New Century of Hate

We thought it was time to repost our 2015 blog about how the civil justice system can be used to dismantle hate groups. Since that time, others have weighed in on using civil litigation to deal with current circumstances. And the Center for Justice & Democracy published a study that discusses many of these earlier cases. Here's our entire 2015 post:

Just two days ago, Charles Kurzman, sociology professor at the University of North Carolina at Chapel Hill, and David Schanzer, director of the Triangle Center on Terrorism and Homeland Security at Duke University, wrote this in a New York Times op ed:

The main terrorist threat in the United States is not from violent Muslim extremists, but from right-wing extremists. Just ask the police.

In a survey we conducted with the Police Executive Research Forum last year of 382 law enforcement agencies, 74 percent reported anti-government extremism as one of the top three terrorist threats in their jurisdiction; 39 percent listed extremism connected with Al Qaeda or like-minded terrorist organizations. And only 3 percent identified the threat from Muslim extremists as severe, compared with 7 percent for anti-government and other forms of extremism.

Monitoring hate groups and right-wing extremists is one of the central missions of the Southern Poverty Law Center (SPLC), an extraordinary organization that, as we’ve noted before, has “crippled some of the country’s most notorious hate groups by suing them for murders and other violent acts committed by their members.” Just look at their current docket.  Sadly, as today’s tragic news only confirms, hate in America isn’t weakening:

Since 2000, the number of hate groups has increased by 30 percent. This surge has been fueled by anger and fear over the nation’s ailing economy, an influx of non-white immigrants, and the diminishing white majority, as symbolized by the election of the nation’s first African-American president.

These factors also are feeding a powerful resurgence of the antigovernment “Patriot” movement, which in the 1990s led to a string of domestic terrorist plots, including the Oklahoma City bombing. The number of Patriot groups, including armed militias, skyrocketed following the election of President Obama in 2008 – rising 813 percent, from 149 groups in 2008 to an all-time high of 1,360 in 2012. The number fell to 874 in 2014.

This growth in extremism has been aided by mainstream media figures and politicians who have used their platforms to legitimize false propaganda about immigrants and other minorities and spread the kind of paranoid conspiracy theories on which militia groups thrive.

Nineteen of these hate groups, “including two factions of the Ku Klux Klan and four ‘white nationalist’ organizations,” still call South Carolina home. Equally disturbing, as the SPLC notes today,"Black churches, including those in South Carolina, have been the targets of hate crimes throughout our country's history.”

Indeed, back in 1995, members of the Christian Knights burned down the Macedonia Baptist Church, a South Carolina African-American church. Three years later, “a South Carolina jury award[ed] the largest judgment ever against a hate group in Macedonia v. Christian Knights of the Ku Klux Klan. The Christian Knights, its state leader and four other Klansmen [were] ordered to pay $37.8 million (later reduced to $21.5 million)." Writes SPLC:

The civil judgment forced the Klan to give up its land and headquarters. When the property was sold, the deed included a restriction that the land never be used for white supremacist activities.

The judgment in this case transformed the Christian Knights from one of the most active Klan groups in the nation to a defunct organization.

Clearly, the shooter in the Charleston church massacre (a terrorist hate crime if there ever was one) is aligned with - if not part of - similar organizations. These groups haven’t exactly been hiding out lately.  For example, in Seneca, South Carolina last year,

[R]esidents in Oconee County reportedly found bags in their street containing candy and a leaflet with the message "Save Our Land, Join the Klan." It had a phone number that led to an automated message discussing KKK efforts against illegal immigration.

In the same month, a KKK rally was held in Abbeville, according to NBC station WYFF….

South Carolina is one of only five states that does not have a hate crimes law, according to campaign group SC Equality, although a recent extension of federal law means there are legal protections for victims of hate crimes in all states.

If indeed, it’s determined that this evil individual (who shall go nameless here) is connected to any of these hate groups, we hope (and have no doubt), SPLC will attempt to sue them out of existence. Seems like we need this now more than ever.

How Civil Lawsuits Can Mitigate our Nation’s Crises

In nearly every state, as well as in Congress, proposals abound to limit the rights of Americans to use the civil justice system. The fundamental PR message of corporate and other special interests behind these proposals is that the civil justice system is somehow harmful to us as a nation, instead of something to be proud of. They use alarmist, prejudicial and unsubstantiated data to make their case, while we use scientific, objective and fully substantiated data to make ours. I think if we’ve learned anything over the last four years, it is that our approach is not only correct but also on the right side of history.

And today, we’ve got the receipts.

The Center for Justice & Democracy has a new study, called Lifesavers 2021: CJ&D’s Guide to Lawsuits that Protect Us All. The study describes over 125 lawsuits that have led to major health and safety improvements benefiting large numbers of people, spanning over 50 years. These cases have not only saved lives but also show us how to mitigate some of today’s most dire crises.

Take hate groups. The report describes a number of cases brought from the 1980s through the 2000s by the Southern Poverty Center, which accomplished what the criminal justice system could not: putting them out of businesses. The report notes, “Civil lawsuits by hate crime victims were used effectively to bankrupt several white supremacists and Nazi organizations, while also directly responding to the financial needs of victims.” While some groups may be operating differently today, civil liability remains an important tool that attorneys should explore.

Take COVID-19. Lifesavers includes cases recently brought against disease-ridden COVID-19 super-spreader establishments, resulting in safer workplaces. These cases have been necessary because many essential businesses and services, which have been operating throughout this pandemic, have not followed best practices and have endangered their own workforce and customers. Many have not been supportive of sick employees, forcing them to work, threatening dismissal unless they do and greatly contributing to infection-spread throughout the country. As with the dismantling of hate groups, lawsuits by workers – unusual as they may be –  are a critical safety tool that must be available. The corporate push for business and health care liability shields must stop.

Finally, take police brutality. The crises of police brutality and racial injustice in law enforcement cry out for solutions. One idea has emerged as a starting point: abolishing the doctrine of “qualified immunity.” Qualified immunity protects police officers from civil liability when they kill or injure someone using excessive force, brutality or other misconduct. Fortunately for victims and their families, qualified immunity does not prevent police departments from being held accountable. Many suits have been brought and resulted in important changes to policies and practices, including serving as a tool for police departments to identify and remedy potential widespread abuses. Lifesavers highlights many of these cases.

Our nation is not harmed when the rights of injured, sick and violated individuals are vindicated through the civil courts. We all benefit from civil justice and from the corresponding deterrence of unsafe or illegal misconduct. Over the last 40 years, the civil justice system has been battered. But as Lifesavers shows, after 245 years and just as the nation’s founders had hoped, the system still works.

Medicine’s Dark Side

You might think we are a bit tone-deaf to do this post today, threats to the Republic and all. But it is still important to note some under-the-radar issues that will be with us well past January 20 and even beyond COVID-19. So here’s what we want to tell you: some of the bosses and political patrons of corporate medicine are creating such misery for people that the Hippocratic oath “First Do No Harm” seems to be in clear violation at the moment. And I don’t know who’s supposed to be enforcing that, but at least we can talk about it.

Let’s start with a couple shocking COVID related stories this week that you may have missed.

First comes this story from the New York Times about close Cuomo ally Northwell Health, run by Northwell’s ethically-challenged Michael Dowling. (Not our first rodeo with Mr. Dowling, BTW.). Northwell is New York’s largest health system. Even though the Governor told state-run hospitals to stop suing patients over unpaid medical bills, Northwell ignored this directive and has launched a “flood of litigation” against patients during the pandemic, more than 2,500 last year.

The Northwell lawsuits each sought an average of $1,700 in unpaid bills, plus large interest payments. They hit teachers, construction workers, grocery store employees and others, including some who had lost work in the pandemic or gotten sick themselves.

And as they were running around suing their own patients, Northwell and New York’s other major hospitals systems lobbied for immunity laws in New York (and in Congress) so that patients severely harmed by negligent hospitals or killed by bad nursing homes would have no remedy and could never hold anyone accountable in court.

Speaking of negligent nursing homes, here’s some chutzpah for you. Pennsylvania nursing home operator Comprehensive Healthcare Management Services is trying to hide behind the COVID-19 federal declaration of emergency, meant to deal with actual emergencies like vaccine production, to infect and kill its patients with impunity. This is even though courts have already said they can’t do that, and their facilities’ staffing and infection control problems existed well-before COVID.

Which brings us to our next topic, forced arbitration. When it comes to medical care, turns out this is not just a problem with nursing homes. As Bloomberg reported last week, more and more doctors are forcing patients to sign these anti-patient clauses in order to get medical care, guaranteeing that if they or their child are victims of negligence no matter how egregious, they must resolve their cases in rigged, secretive systems and cannot hold the culpable health care provider accountable in court.  

This is due to a new trend, which COVID-19 is accelerating - doctors themselves are being told they cannot provide care without patients signing these horrendous clauses. The requirement is coming from out-of-state private equity firms that now buying up physician offices and surgery centers. Says Bloomberg,

Over the past decade, almost 4,000 independent clinicians in women’s health have come under private equity ownership, according to a study published in August in the Journal of the American Medical Association. The figure is likely much higher, according to the study’s authors, but the deals aren’t uniformly disclosed.

And as the story also describes, these clauses are being forced on patients even though state Supreme Courts have prohibited use of them.

Oh, make sure to give the insurance industry proper blame for this trend too. As Bloomberg reports, “[t]he insurance industry has encouraged this trend by offering better terms to physician groups that can get their patients to preemptively waive their right to a jury trial.”

And finally, CBS just did a couple great pieces (here, here) about the failure of state medical boards to oversee and sanction even the most incompetent physicians with records of medical malpractice. As CBS points out, it is no secret that a small number of doctors are responsible for most malpractice. If medical boards simply did their job and weeded them out of the system, deaths, injuries, claims and lawsuits would all drop. Instead, the medical industry is relentlessly focused on stripping victims of their legal rights.

Stupid is as stupid does.

Happy Holidays!

Confidential Insurance Memo: Stop Mimicking Donald Trump!

The following is a memo we obtained from a confidential insurance industry source (FWIW). 

MEMO

From: Four Seasons Media Consultants, Inc.

To: The property/casualty insurance industry

Re: Stop Mimicking Donald Trump!

Date: November 11, 2020

Friends, voters have spoken about the current President and what they’ve said is, “we don’t like this guy.” As a fairly detested industry yourself, you could learn some things from this experience. Based on what I observed from yesterday’s A.M. Best Webinar called, The Impact of Social Inflation on Insurance, which featured grievance-filled insurance lawyers and litigation consultants, I would like to make a few recommendations.

1. Stop Playing the Victim

Trump played the victim for four years. Ultimately the public didn’t buy that story. They’re not buying yours either. Maybe it’s just that your disgruntled lawyers and consultants who (sometimes) lose their cases need to stop representing you in Webinars. I think it’s more than this, however. Consider the “optics,” for example. You have made huge profits during this pandemic, partly due to the fact that you are price-gouging your struggling commercial policyholders. As you must know, the whole idea of “social inflation” was fabricated to justify these premium hikes, which began last year and have continued all this year. This is all happening while you hoard money, fight claims, and dump risk while making a windfall due to fewer claims, delayed jury trials, and low-balling settlement offers. Trump's campaign was grievance-driven. He lost. Please take a lesson from that.

2. Stop Talking about Jury “Fraud” with No Evidence

Talk about ripped from the headlines! Here are some of the things I heard at the A.M. Best Webinar. Jury verdicts, rendered by everyday people from a community (jurors, like voters!) are “fraudulent.” This “fraud” occurs when jurors hear from both sides in a case, believe the plaintiff’s version of things, and award an injured victim a sum that you consider large. This is your main definition of “social inflation.” But as one Webinar panelist noted, this is a completely made up industry term, created with “no scientific evidence behind it” and “no sound scientific basis for it.” And he was the first speaker! “Who cares,” said one of the corporate lawyer panelists later. “I know it when I see it” (paraphrasing Supreme Court Justice Potter Stewart trying to explain hard-core pornography). Nope. U.S. government policy is about to become science, data and fact-driven again. Get with the program, folks!

3. Stop Ignoring Covid

I’m not talking about ignoring lives lost due a lethal pandemic, as Trump has done. I’m talking about holding a gripe-filled session about jury verdicts at a time when, due to Covid, the civil jury system in under more strain than at any time in modern history. Civil juries trials barely exist today. How can you possibly be complaining about jury verdicts right now? Even when jury trials start up again, civil cases are so backlogged that “extreme delay” seems like an ridiculous understatement. (A few articles and observations here, here, here.) Some injured victims are having to turn to private systems, like mediation and arbitration, to adjudicate their claims - systems that can be infected with corporate bias.  As the LA Times reported,

Having to rely on mediation and arbitration to resolve cases has left many plaintiffs in a painful limbo, said Oakland attorney Micha Star Liberty, president of Consumer Attorneys of California. Liberty’s law practice represents people whose claims include wrongful termination from work, sexual harassment and serious injury or abuse.

 “Regular folks who depend on an ability to petition the courts to remedy wrongdoing are in dire straits,” Liberty said.

“Systems like arbitration favor corporations and are extremely expensive. Mediation is extremely expensive,” she said. “With the courts failing to function at full capacity, delay and denying tactics are working and people are getting hurt.

Not only that, insurance defense lawyer costs are down since everything’s on Zoom. No more padding those business travel expenses!  And no more ignoring Covid. It’s been a windfall for you guys and you know it.

4. Don’t be a Sore Loser

Another recent Trump theme, of course.  Most of your fake evidence of “social inflation” is the litany of cases you lost due to your inability to defend your client’s negligence or misconduct. Sorry you did not do well but blaming anyone but them and you for this is juvenile. No, it’s not lawyer ads that cause your loses, or litigation finance companies that actually screen-out frivolous cases. (See more here.) Most of the Webinar addressed how insurance defense lawyers can turn things around for themselves. Here’s a thought – settle more legitimate cases for a fair amount of money. You’ve got the funds. Stop fighting everyone. If you really don’t like these outcomes, leave and do something else like set up your own media company. Or something like that.

To sum up, Tom Friedman had a recommendation in his recent New York Times column about how “the Trump presidency has dangerously normalized lying.” He said,

[I]t’s vital that every reputable news organization — especially television, Facebook and Twitter — adopt what I call the Trump Rule. If any official utters an obvious falsehood or fact-free allegation, the interview should be immediately terminated, just as many networks did with Trump’s lie-infested, postelection, news conference last week. If critics scream “censorship,” just shout back “truth.”

So consider this memo my shouting back a little truth. Make sense? If not, I hear the Trump White House is still hiring.