I use my digital camera so seldom....

Here's another picture from the rally in Knoxville:

So, I'm sitting in my office looking at Anne...Straight From the Hip [Hi, hon -- and that's 4503; ed. note: check her blog journal out to see what he means], when I hear chanting and singing from outside my 8th floor window. I grabbed my trusty Minolta digital and this was the result. A somewhat desultory anti-war rally being held in front of the John H. Duncan Federal Building. A little silly to hold the "rally" here, especially as the building closed about 2 hours ago....Oh, well, whatever makes 'em happy.

Thanks to Instapundit for online storage space [and instructions on how to post a pic; boy I feel like a real techie guy now!].

Either you're with us or you're not. And here's the rogue's gallery of some of those who are NOT: Palestinians [about 700 Palestinians, most of them schoolchildren, waved Iraqi flags and posters of Saddam Hussein and burned two U.S. flags after the attack in Iraq. Among the slogans they shouted were "Death to America, death to Bush," and "We will sacrifice our soul and our blood for Saddam."], Egyptians ["God, you are almighty, you are capable of turning this [war] against" the
Americans, said Egyptian Bashir el-Afesh as he finished his prayers in Cairo.], Syrians, er, Lebanese, er, ah, what's the difference these days [In the Lebanese capital, papers pushed back deadlines to include war news and appeared on newsstands.] Of interest is Iran, who while deploring the military action ["American military operations on Iraq are unjustifiable and illegitimate"] nevertheless is remaining neutral: "The Islamic Republic of Iran will not enter into action to the benefit of either side."

Pax Americana? In the case of Scott Speicher, the American aviator shot down in 1991 over Iraq, declared KIA, and now believed to be alive and held by the Iraqis, I think it's worth going to war to save even one American held captive by these bastards. Sgt. Stryker posts about it, and links to another article about this brave and somewhat overlooked American, which then links to the web site set up in part by Speicher's wife. There are plans for a rescue in the early phases of the war. If anything will make this a popular conflict, getting Scott Speicher out of Iraq and back with his family ought to do the trick!

Now here's the thorny dilemma. Scott's wife, believing him dead for years, married another man and has had children with him. If Speicher returns to the land of the living, so to speak, what then? Does she stay with the new husband, go back to Scott, or move to Utah and practice polygamy?

Is/Are Mel Gibson and/or his family anti-semites? This story suggests that to be the case, at least as regards his father, who is 85 years old. Check this out:

The actor's father, Hutton Gibson, told The New York Times he flatly rejected that the terrorist group led by Usama bin Laden had any role in the attacks on the World Trade Center and the Pentagon Sept. 11.

"Anybody can put out a passenger list," the elder Gibson told The Times.

"So what happened? They were crashed by remote control."

He and the actor's mother, Joye Gibson, also told The Times that the Holocaust was a fabrication manufactured to hide an arrangement between Adolf Hitler and "financiers" to move Jews out of Germany to the Middle East to fight Arabs.

"Go and ask an undertaker or the guy who operates the crematorium what it takes to get rid of a dead body," Hutton Gibson told The Times. "It takes one liter of petrol and 20 minutes. Now six million?"

Said Joye Gibson: "That weren't even that many Jews in all of Europe."

This Bill O'Reilly interview of Mel [scroll down about half way to get to the interview] suggests that journalists were hounding Gibson's father to "dig up dirt." Maybe this counts, although I don't place much stock in the musings of an 85 year old private citizen.

Mel is "implicated" because he is making a movie about the last 12 hours of Christ, and there is some hint that the approach of the picture is to repudiate Vatican II, in which the Catholic Church, after 20 centuries, rejected the notion that the Jews were collectively responsible for the death of Christ. Here's another article that alleges the inflammatory statements came from a family friend:

The friend, Gary Giuffre, a traditionalist Catholic, also said that the film will lay the blame for the death of Christ where it belongs -- a reference that some traditionalists believe means the Jewish authorities who presided over his trial, the article said.

* * * *

Discussing his film in a recent TV interview, Gibson was asked whether his account might particularly upset Jews. He said, "It may. It's not meant to. I think it's meant to just tell the truth."

Whose truth? The fact that there is no denial from the Gibson camp as to the approach of the film may suggest that, in fact, the Jews are going to get blamed yet again. If so, I will certainly be disappointed. Question: has he become a zealot?

Maybe I'm greedy. But Glenn R.'s MSNBC blogumn [I just made that up] says, interestingly, "And with large numbers of troops in Iraq, and de facto control of Iraqi oil production, the United States will have the power to make that sort of thing [punitively disfavoring French influence in the region] stick." So I got to thinking: if we control Iraqi oil when this thing is all said and done, can we just hold on to it long enough to get gas prices down to a sane level? Or, on the dark side of things, would Bush hand over control of the Iraqi oil facilities to his Big Oil buddies? Just musing at the end of the day....
NEXT DAY UPDATE: Maybe prices will come down after all, like I mused.

The French Ambassador to the U.S. says that if Iraq goes chemical/biological, then that "would a create a completely new situation for the whole world." Saddam has already used chemical/biological weapons in military action [see the interactive sidebar: "Chemical and biological weapons Iraq says it has manufactured in the past"]. To summarize, he used mustard gas in the Iran war, he used Tabun, a nerve agent, during the Iran war, he used Sarin, a nerve agent, during the Iran war, he used Cyclosarin, a nerve agent, during the Iran war, and he used CS, a tear gas, during the Iran war. What's changed?

Of great concern in these days leading to war is how to deal with an "enemy" who doesn't fight conventionally, i.e., army to army, on recognizable fronts or in defined theatres of action. Here is an analysis of the "Arab way of war", with some suggestions as to responses. Interesting reading. From Jerry Pournelle's web site.

Call it evolution in action:

It seems that many, if not most, of the hundreds of journalists assigned to combat units can't be bothered with carrying around their chemical warfare equipment. So many reporters plan to use the journalists (at least the ones who refuse to take their chemical protection gear with them) as chicken replacements.

And they say that birds are not very bright....

Fox News Watch thinks that the wait from hell has allowed the public to be well informed about the different sides of the war issue. Maybe. But it makes no reference at all to the incredible information dissemination in the blogosphere. Shame, shame.

While I don't particularly agree with the theme of this TomPaine.com editorial, there is a nicely depressing -- and unfortunately apt -- quote from the late Supreme Court Justice Robert Jackson, at the Nuremburg trials:

Supreme Court Justice Robert L. Jackson, who was this country’s representative to the International Conference on Military Trials in August 1945 and the chief prosecutor at the Nuremburg war crimes trials, told his colleagues then that "we must make clear to the Germans that the wrong for which their fallen leaders are on trial is not that they lost the war, but that they started it. And we must not allow ourselves to be drawn into a trial of the causes of the war, for our position is that no grievances or policies will justify resort to aggressive war. It is utterly renounced and condemned as an instrument of policy."

One wonders how Jackson would have responded to the Iraq situation, or for that matter, any of these screwy post-cold war scenarios. If someone could suggest a way out of the Iraq situation that did not involve the use of force, and which would also keep our economy and national prestige from suffering profound damage, I'd like to hear about it.

From our prolific Atlanta Bureau Chief, RJGator, comes this quasi-legal analysis:

InstaPundit wrote last evening, "The big question: if Saddam makes clear that he won't step down, will we start before the 48 hours has expired?"

Looking at this from the perspective of a contract attorney, there is no legal reason why we should not. We made an offer: leave within 48 hours, and there will not be a war. According to the Atlanta news this morning, Saddam's sons rejected the offer. It is a fundamental rule of contract law that rejection of an offer kills the offer. Once the
offer is dead, it can't be revived: Saddam can't change his mind and accept.

As our colleague David Epstein colorfully put it, "If it is dead, we can't mess with it any more. It would be unnatural to mess with it. That would be necrophilia."

Thus, there is no longer any offer or other impediment on the table. The table being clear, we can run it.

It would be nice if the world in general ran according to basic principles of contract law. Hell, it'd be great if contract law ran according to basic principles of contract law. Heh.

One does wonder whether the Hussein rejection of the invitation to run [and did anyone actually think Saddam & Sons would really leave?] will lead to action before Wednesday night. I doubt it, because Bush seems to have guaranteed time for the UN folks and other neutrals to get out of Iraq. However, given that surprise still remains the most important tactical advantage in war, it's maybe not a bad idea to go sooner rather than later. I mean, between the Administration and the media, Saddam has basically our entire disposition of forces. The only thing left to surprise him with is when we go, and exactly how we go.

Instapundit links to John Scalzi, who believes, as I do, that we must fight, but that the Administration has incredibly bollixed up the situation:

If Bush and his people had the slightest bit of competence in dealing with the rest of the world -- competence that should have begun on January 20, 2001, not just in the last six months or so -- this war would already be over. There would have been no real dissent in the Security Council, no ability for Saddam to play other countries against us, less time for the "no war ever under any circumstances, ever" crowd to build up its head of steam, and we'd have had international support for a war that would be both useful and had the potential to eventually be a humane action. Saddam would probably already be dead (or rotting in a dinky little cell, which I would prefer) and the UN instead of the US would be stuck with keeping the various hate-filled factions within Iraq from gleefully murdering each other. We would have gotten what we wanted, and we would have made it look like a team effort. Then everybody could have had their Coke and gone home.

Glenn gives Bush & Co. credit for bending over backwards to make the UN process work. I don't think there was that goal in mind. I think there has been no coherent long term strategy in preparing for war, or whatever. Like the Energizer Bunny, the situation just kept going, and going, and going.

Well, the waiting's about over. There will be no vote on a second UN resolution. Bush is set to address the nation tonight. Hopefully, it will coincide with an attack in progress; some tactical surprise would be nice. Even the possibility that the excruciating wait is ending has caused the markets to jump up.

To the anti-war types, what are you all so afraid of; if Saddam is telling the truth, there won't be any bio-terror or nuclear disasters. What I [and probably the Administration] am afraid of is that Saddam has been lying. Example [from the first link]:

Meanwhile, unnamed U.S. officials in Washington told CNN Pentagon Correspondent Barbara Starr on Monday there was "more chatter in the system" pointing to the possibility that Iraq may be preparing to use chemical weapons in a possible U.S.-led war. Chatter is usually defined as monitored, yet unspecified, intelligence messages.

I'd certainly prefer that Iraq not use WMD. Iraq's use of those weapons would, however, validate everything we have been saying.

UPDATE: at 2:27, the markets are now up 242 points. Boy, we need to win big and win fast.

I stumbled across this alleged debunking of the Erin Brockovich story, apparently by some guy named Michael Fumento, a senior fellow at the Hudson Institute in D.C. Here's Erin's reply. It strikes me that this guy's got an axe to grind. Not surprising, since he has a pedigree that includes the American Enterprise Institute [conservative think tank] and the Washington Times [Moonie paper somewhat to the right of Attila the Hun]. Like most arch conservative types, he thinks it insignificant that the defendant in the Hinkley case voluntarily negotiated and paid -- as a settlement -- about $333 million. Apparently that's peanuts for PG&E and people like Fumento. I wish I knew defendants that would pay up that kind of dough on my undeserving cases.

For perhaps a more realistic viewpoint, Michael Asimow, a UCLA law professor, enjoyed the movie, and apparently didn't agree with Fumento's smarmy attack on the case or the movie. Just as an example of what Fumento failed to consider:

The killer document implicated the top management of PG&E in the Hinkley cover-up. Under Calif. Civil Code §3294, in order to support a claim for punitive damages against a corporation, it is necessary to show that an officer, director or managing agent of the corporation ratified the wrongful conduct. The document was clearly the key to the arbitrators' huge punitive damage awards. In the film, the document is turned over to Brockovich in a bar by a rather sinister looking fellow who Brockovich thought was trying to pick her up. He was a PG&E employee who had been told to shred documents but had saved the critical ones. He was out for revenge since his brother (also a PG&E employee) had just died from chromium poisoning. In fact, there were two sources for this material, including a bartender; PG&E hired them to transport all the historical records about the chromium from the "boneyard" where they were stored to the dump. This episode illustrates what all trial lawyers know--the difficulty of covering up evil conduct and the likelihood that somebody will spill the beans. [emphasis added]

If PG&E didn't do anything wrong, how come they tried to destroy the "smoking gun" evidence? Also important is to comprehend Ed Masry's gamble and the expenses necessary to get to that settlement. Masry ran a two lawyer shop; it was the gamble of a lifetime to go after corporate giant PG&E. Also, as Asimow notes, the plaintiffs in that case had expenses of over $12 million. Now that's a gamble.

A buddy of mine emailed the following to me:

To: French Embassy in Washington French Consulate in Los Angeles

Dear French Nation! Shalom!

As a Jew, I would like to thank you from the bottom of my heart. I would like to thank your President Jacques Chirac for saying that Israel needs to be convinced that peace is better than war.

Never mind that peace (shalom in Hebrew) is the most common word in Jewish
prayers. That it is endlessly repeated in synagogues, when greeting or taking leave, when getting up or going to bed.

Never mind that shalom (peace) is mentioned 77 times in the Torah, and 275 times in the Jewish Bible (The Old Testament of Christians). Never mind that of all the world's literature the United Nations chose to inscribe the words of Israeli Prophet Isaiah on the wall across from its building in New York. Here are these words, "and they shall beat their words into plowshares, and their spears into pruning hooks: nation shall not lift up sword against nation, neither shall they learn war any more."

Never mind that these words are said in every synagogue at nearly every assembly, and that peace is called "God's greatest gift, " Therefore, the President of the Nation that still venerates general Napoleon would do better teaching cows how to make milk, or teaching grass how to grow quietly than teaching Jews (Israelis) that peace is better than war. Thank you, Jacques Chirac, for informing me about the encyclopedic extent of your ignorance.

I would like also to thank the unnamed cinema near the Paris Opera for canceling a screening of the "Harry Potter" film for Jewish kids. But I am even more grateful to the police of Paris, which has failed to provide protection for these kids. Apparently Jews of any age are no longer guaranteed complete equality with the rest of the population. France was the first country in Europe to offer Jews this guarantee, and now it is
apparently also the first to revoke it.

I congratulate your great Nation for keeping up at the foreskin of progress, no matter in which direction progress turns. And how can I not mention the doctorate degree in history, which was offered to Mustafa Talas (who just happens to be Syria's Foreign Minister) by the Sorbonne. The Honorable Doctor Talas has written a book on the Damascus Blood Libel of 1840, in which he claims that Jews kill Christians to obtain their blood for Passover. A true genius of historical science is Mustafa Talas, and certainly worthy of Sorbonne. I am infinitely glad that good old blood libels (perhaps the most imaginative product of European civilization), nearly forgotten in the last 50 years, are being revived in French academic circles.

You French are just wonderful: not only do you keep at the foreskin of progress, but also revive ancient traditions. (The Damascus Blood Libel started with disappearance of Father Thomas, a Franciscan superior. The French consul accused a group of rabbis and other Jews of ritual murder and extracted a "confession" by torture in which one of the victims Pogroms followed throughout the Middle East. The consul then requested permission from Mahemet Ali to kill the rest of his suspects. Others, including sixty children, were arrested and starved to convince their parents to confess. The charges were dropped when Sir Moses Montefiore, Adolphe Cremieux and Salomon Munk intervened on behalf of the Jews.)

I also cannot forget the events of October 2000, with synagogues firebombed and burned, Jewish worshipers attacked and stoned. I know that President Chiraq spoke out against all this, saying that this is not what he meant when he criticized Israel. Well, as English playwright Shakespeare said, "Methinks the Lady doth protest too much." The President's criticisms of Israel had been (and remain) so extensive, so
common and so unforgiving, that I cannot possibly believe him. The events of October 2000 is exactly what he meant. And if there is any doubt about it, your ambassador to the United Kingdom Daniel Bernard has cleared it up. Not only did he call Israel "that shitty little country," (quite a polite and diplomatic fellow is Daniel Bernard, is he not?) but he also ante-factum (before the fact) blamed the Jewish people for starting World War Three. My greatest gift of gratitude, therefore, goes to him. He has discovered in me (after all, I belong to "those people") a horrifying quality of causing world wars, a terrible character flaw about which I hitherto had been completely unaware. He has also forewarned us of our pre-assigned guilt.

I would like to inform you that I have decided to join the campaign against France. I will not visit or fly through France and its colonies of Guadeloupe, Martinique, and St. Pierre. That I will also boycott all products made in France, including perfume and cosmetics industry, designer fashion labels, French wines, chocolates, etc. That I will use my money to buy Israeli products, and travel to Israel and other countries who still think that Jews are human and should not live at the mercy of Palestinian
terrorists.

I gues the theme of the day on this blog is the rising tide of anti-semitism, which we in the U.S. have not paid enough attention to.

And while we're at it, let's do this war already! The economy is worsening day by day.

Is this new mystery pneumonia a bio-terror attack? No one's reported on that aspect yet, but it shows you where my mind is these days.

Jim Moran is in trouble. And he ought to be. Nice quote from the Anti-Defamation League:

"This is one voice in the chorus spreading a new lie, the age-old anti-Semitic canard that when our country faces danger, Jews are responsible," it said.

"As we move closer to an invasion with Iraq, the drumbeat of 'blame the Jews' -- meaning Jews in the administration, the 'Jewish lobby' and the Jewish community -- is intensifying and multiplying.

"Congressman Moran's remarks are symptomatic of a more serious problem -- that in times of crisis and anxiety, Jews continue to be a convenient and tempting option for scapegoating."

This post dovetails with the previous one about that anti-war rally in D.C. It doesn't take a lot of imagination to see the anti-semitism when these anti-war types are talking about Israel and "Palestine" in the same breath as the Iraq situation. It's all the Jews' fault.

You know, if Jews had half as much influence as these idiots think, there would have been, by this time, a Greater Israel that had taken over all the middle east.

Anybody see that ANSWER rally in DC over the weekend? Here's the C-Span link that will show you some of that video. What got me during my 20 seconds of viewing over the weekend [not on the video at the link] was the guy who equated "Israel's invasion of Palestine" with Bush's soon-to-be war on Iraq. True colors shown by this group. If ANSWER represents the liberal or democratic mainstream, I guess I'm not a liberal or a democrat any more.

The democrats [of which I have always been one] are in serious danger of losing their base [I figure I'm typical of the centrist democrat] over the war question. But, just when I thought it was over for the dems, here comes John Edwards, who has the guts to speak his mind in a very hostile environment. He was roundly booed by the crowd at the California Democratic Party convention for supporting the use of force, if necessary, to oust ole Saddam. I love his quote:

'It is also a test of presidential leadership to have the backbone to say to those who strongly disagree with you, even your friends, what you believe,'' he said before expressing support for using force.

It's at least a threshold consideration, i.e., whether the candidate has the guts to say [and impliedly do] what he believes is right, in the face of concerted opposition. I'd say that Edwards passed the test with flying colors.

Meanwhile, here's Howard Dean, who shows he can pander with the best of them: 'What I want to know is what in the world some of these Democrats are doing supporting the president's unilateral intervention in Iraq,'' he said to sustained applause. Dean and the other candidates flunked, big time.

Interestingly, California Republican Party spokeswoman Karen Hanretty said the conventiongoers did not represent the average California voter -- or the average Democrat for that matter.

"Obviously, Dean is telling the liberal activists in the Democratic Party what they want to hear, but it doesn't sound like he's offering a message that mainstream voters are going to relate to," she said.

Significantly, Edwards' position over the the weekend is not new, and he's had trouble with protesters in his home state long before the weekend convention.

It doesn't hurt that Edwards is a trial lawyer, so I know he'll do the right thing when it comes to protecting the rights of negligence victims. I'm for Edwards!

Here's the rest of the story. Howard Fast may have written the novel "Spartacus," but Dalton Trumbo wrote the screenplay. And while Fast may have been a well-known radical, Trumbo had been blackballed from the picture industry and imprisoned for his communist tendencies. Kirk Douglas, who produced the movie, insisted on having Trumbo write it under his real name, as opposed to a pseudonym. And that's...[wait for it] the rest of the story.

On a lighter note, Glenn and Griff and I, we're going diving. We're going diving! OK, not till the summer, but: We're going diving! We're going diving!

Yes, it's true: Glenn Instapundit Reynolds and I broke bread the other day. That ought to be news enough. I mean, we live 10 minutes away from each other, work 5 minutes away from each other, and actually manage to get together for lunch or whatever once every 3 months or so. My fault, I'm sure; I'm just a damn surly creature.

Glenn speaks the truth, however, on my Iraq position. I have very deliberately been on the fence, as previous posts on this site indicate. But I thought I should explain what has led me to come out in favor of doing this damn war, already.

First, Saddam is a bad man, and should have been completely dealt with in 1991. That was the mistake of a Bush White House with significant input from Colin Powell. While I don't have much confidence in the current Bush White House [with significant input from Colin Powell], it doesn't change the necessity of getting rid of Saddam.

Why get rid of him? The argument is that he's a known quantity; better someone who is relatively predictable than a wild card. I think that perception has changed over the last several months. The problem with this guy is that we can't predict what he's going to do. There is at least some evidence that Saddam is working on bioterror weapons, and he has had a well-known relationship with nuclear technology [which is probably being supplied to him by the French -- hence their eagerness to prop him up]. That he has not used these weapons on people other than Iraqis and Kurds does not mean that he will not -- at any moment -- use them on us, or the Israelis, or whoever. Given the climate of the last 7 or 8 months, we cannot allow him to continue holding over the world this potential for catastrophic destructiveness.

We must move, and soon. Our reputation in the world community, not strong to begin with, has suffered from the waiting. The UN maneuvering, while maybe justifiable in theory, has turned out to be a waste both of time and national prestige for the U.S.

We are now, based on the Administration's handling of the issue, in a no-win situation regarding Saddam. If we go militarily without UN "permission" we are villified as ignoring that "august" body. Even if we do get a UN OK, we will be villified by the fairly significant [at least vocally] anti-war movement, that finaly has found a cause since Vietnam is a dead issue. We won't get UN permission, however, because France or Russia will veto. France especially continues to villify us in the world press. And, simply doing nothing will get us villified, too. We cannot allow Saddam to remain in place, because if we back down now, we are seen as a laughing stock, and Saddam may very well become the leader of the arab world as a result of "defeating" the U.S. We're going to get villified any way we go; we may as well have the villification of our choice [ed. note: can the Administration have been this smart? Can it have actually set up this scenario where going to war is the lesser of evils? Nah.]

Our administration has placed us in a remarkably difficult situation by its ham-handed handling of the Iraq issue. By waiting as long as we have, we have destroyed any semblance of strategic or tactical surprise, which is the single most important factor, militarily speaking. We have been turning the Rooseveltian "speak softly and carry a big stick" on its ear, since we are screaming about how great we are and how we are going to squash Iraq. Not smart politics. Not smart war-making. We should just -- as a government, that is, just shut up and do the job.

If we start taking casualties, the early and vocal predictions of a military cakewalk are going to come back to haunt the Administration. We all want to achieve the goal of cooking Saddam's goose with a minimum of fuss and human loss, but we must also remember that basic military tenet: No Battle Plan Survives Contact With The Enemy.

The economy is taking body blows because of this interminable shucking and jiving. We are economically in the toilet: over 300,000 more unemployed in the last month, gas prices the highest in history, the airlines about to go belly-up because of the political climate and the fuel prices, the stock market about the lowest it's been in five years, a loss of 25 to 30% in the value of stocks over the past yearand a $300 billion deficit and climbing. And still, the idiot in the White House [strike previous, insert "President"] wants to cut more taxes. We just got out of financial trouble and within 2 years he's made it worse than it ever was. So much for small government. Anyway, we've got to get off the nut before our economy completely tanks. This domestic economic rationale may be the single most urgent reason for going, and going now. Also, I understand that we've already spent 3/4 of the money prosecuting this war will take. So at this point, it's not a money issue.

OK, so I do have some ambivalence; just not about whether it's time to make war on Iraq. I hate this Administration, and I think it has mishandled this Iraq situation from the start. But, given the situation on the ground, I also believe that we have no choice but to get rid of Saddam, and do it soon. As a wise man said, "sh-- or get off the pot." It's time to go to the bathroom. On Iraq. And get rid of this 9 months of constipation.

A funny from Doonesbury:

Iraqi: Is it true that only 13% of american kids can find Iraq on a map?

Roland Hedley: Yeah, but all 13% are Marines.

Oh so true. Go Marines!

As predicted earlier, the House passed the caps bill. In a real tribute to the concept of open and honest debate and the legislative process in general, the Republican-controlled House Rules Committee prohibited any amendments or substitutions. Obviously, they had the votes, and were not going to let anything stop the steamroller. Also, the ease of passage may be indicative that new House Democratic Leader Nancy Pelosi isn't too good at her job yet.

What's just as interesting is the lack of play the story is getting. CNN has no story; neither does the ATLA site [which is disappointing -- if a part-timer like me can blog the news before the leading national trial lawyers association, something's wrong with 'em]. I'll look for more tomorrow.

So much for nurturing your employees.

He might close his eyes when he sings, but Charlie Daniels isn't shy about expressing his feelings about anti-war protesters: "You people are some of the most disgusting examples of a waste of protoplasm I've ever had the displeasure to hear about."

This presidential candidate ought to appeal to Libertarians.

All of you balding virile types, attention! Here's what will make your hair grow again:

"For several years now, I haven't had a hair on my head, but since I started drinking my urine, it's started growing again - it's quite extraordinary," the French news agency, AFP, quoted an unnamed magistrate as saying.

Only from a French news agency....

Via Dave Barry.com.

Don't be surprised if and when the malpractice caps bill passes the House. The battleground is going to be in the Senate, where the Republican majority is razor thin. Here's the text of the bill, for those of you with a lot of time on your hands.

Pushing the bill for the American Medical Association is its president, who is a doctor and lawyer. Inerestingly on the conflict of interest front, he also is a founding member of a physician liability insurance company. As a founding member, my guess is that he'd benefit from limitations on insurance exposure resulting from liability caps. If nothing else, as observed by the author of the linked article, it shows additional hidden ties between doctors and Big Insurance.

I'll make a point I've made before -- lawyers aren't asking for caps on damages in legal malpractice cases [and we are target defendants when we get sued]; why are doctors so special? Because they have their own lobby, as well as Big Insurance's lobby, pushing it.

UPDATE: Here's the story from Congressional Quarterly confirming the more difficult road the caps bill will have in the Senate. Two interesting points:

Democrats are expected to challenge the legislation on several fronts. First, they question Republicans' commitment to states' rights. They ask why Republicans who espouse a need to transfer power to the states want to impose federal caps on states that have chosen not to limit damages.

Democrats also have been challenging the fairness of caps on non-economic damages. They say that such limits harm people who do not earn a great amount of wages and would not be able to recover as many economic damages, which would remain unlimited under the bill.

Republicans talk about limiting the intrusions of the federal government when it suits their interests; when there's serious money involved, the concept of states' rights is simply ignored. Didn't Bush have as a campaign theme the goal of reducing the federal government?

ANOTHER UPDATE: Want to see video? Here's an interview for Real Player of a CQ reporter. This reporter sees this bill as possibly the start of a broader move to limit damages in all civil litigation. Apparently, there is also a patient safety bill, which would create a federally created database of medical "errors" [read: malpractice]. Guess what? Only doctors would have access to the data.

His opinion on action in the Senate? with 3 divergent approaches [Diane Feinstein wants a bill patterned on California's law; caps with exceptions for egregious cases; and of course strong caps with no exceptions]. His conclusion: it's a bit murky, and with a busy health care agenda, the Senate might not be able to hammer out an acceptable approach. He predicts that this issue will impact on the 2004 presidential race.

Instapundit had a link last night suggesting that the Clinton/Dole Count-Pointercount [anybody get it?] wasn't getting good reviews. Well, here is the linked NY Times review, and it isn't that bad. It even says

Both men are intellectually agile and quick witted, so it is regrettable that they did not sign up for a spontaneous debate. But by limiting their remarks to prepared micro-essays, the format keeps the discussion tethered to the issue at hand. The "Point-Counterpoint" format may be creaky, but particularly compared with what passes for serious discussion on cable news programs, Mr. Clinton and Mr. Dole proved it is a historic landmark worth preserving.

On the other hand, Tom Shales at the Washington Post has apparently had his attention span so shortened that he was bored by the 45 second exchanges.

I did see the segment, and it was OK, but nothing to write home about. So why I am I blogging home about it?

Sirhan Sirhan has been denied parole again. No big surprise. What I find interesting is that when he killed Robert Kennedy, he was a "Syrian." Now he's a "Palestinian." Why? In 1968 there was no such thing as a Palestinian. Which suggests that we all bandy about a supposedly-legitimate ethnic classification that was created solely for the purpose of anti-Israel propaganda.

According to the Chicago Tribune, a Chicago attorney has used the novel idea of registering with search engines to allegedly troll for clients in the wake of the Chicago E2 and Rhode Island Station deaths. I tried it using the search terms "E2 nightclub, and I couldn't find the lawyer's ad in the first 80 hits.

James J. Grogan, chief counsel of the Illinois Attorney Registration and Disciplinary Commission, said the firm's marketing seems similar to lawyers sending direct mail or buying newspaper ads soliciting clients who have suffered from tragedy, a constitutionally protected form of speech. That sounds about right to me. And besides, if your ad doesn't pop up in the first few hits, what's the point, anyway? Interesting idea, though.

My brother called me to tell me that 60 Minutes had a propaganda piece for tort reform. Here's the only reference to it on the 60 Minutes web site: "MEDICAL EMERGENCY – Two generations of the Smith family practice medicine, but the third generation may not want to, as malpractice insurance rates go higher and reimbursement keeps getting lower. Mike Wallace reports." I understand from brother that it was not balanced, and presented no real point of view from the opponents of tort limitations.

Who was it who said, "You can't buy publicity like this"?

Mark emails:

I'm not sure who to believe regarding all the costs involved with medical care these days, and I suspect that lawyers, especially those that are now legislators, are not entirely blameless. However, most of the "cures" sound worse than the problem.

I work as a programmer at an engineering company, and when something goes out of whack, we figure out what changed and put it back the way it was. Perhaps I'm naive, but isn't that how the problem of out-of-control legal costs be fought? (Assuming there is such a thing...)

If something in the tort system has gone out of control, isn't the best response to figure out what rules or procedures or laws or precedents have changed and fix them?
It's not like we removed the caps and jury awards shot up. We never had caps. That's not what changed. Why do we need them now?

Big Insurance would like to have you believe that hat's changed is a so-called increase in big verdicts. Unfortunately, the data demonstrate otherwise. What's changed is what always changes when the carriers start increasing premiums [and it happened in the 70s and the 80s, and they always blame trial lawyers and lawsuits] -- Big Insurance is showing reduced profits because the markets have gone to hell. they are recouping those losses by increasing premiums, and at the same time they are scapegoating trial lawyers and the system as it is now. It's shameless profiteering of the worst kind.

A word about some of Mark's assumptions. He suspects that lawyers are not entirely blameless. I agree that some lawyers are bad lawyers and/or prosecute bad cases, but no profession is all-good -- or all-bad for that matter. But if we're looking for who's to blame for high premiums, who do you blame? I, for one, blame the at-fault defendants whose negligence led to the claim or lawsuit in the first place. I blame the insurance companies, which are increasing premiums to buck up their sagging profits while blaming someone else for their unsound investment practices. I do NOT blame the lawyers who, as a group, are seeking redress from at fault parties, which at fault parties have bought and paid for insurance to protect them against that very risk.

I believe that the theory is sound that lawyers who seek money damages against negligent parties can indirectly do society good, by forcing negligent parties to be responsible for the consequences of their actions. Case in point: you don't hear about Pintos blowing up any more. For that matter, you don't hear about Pintos any more. I'd like to believe that Ford, one way or another, got the message that unsafe or defective products will not be tolerated. If that result is a by-product of what I and others like me do, then that's OK by me.

If this is a medical malpractice crisis, why are homeowners and auto insurance rates going up, too? Says one official with the Florida Consumer Action Network:

"I don't want to hear the excuse about medical malpractice or lawsuits," said Newton. "That doesn't explain the rate increases for homeowners or auto insurance. None of those affect auto or homeowners, and frankly there has not been much of a raise in malpractice lawsuits, claims or judgments. The only answer is insurance reform."

While Big Insurance representatives deny the charge and blame the premium rises on pharmaceuticals and malpractice cases,

officials with Sankar Investments, an independent firm of financial advisers based in Chicago, think the insurance industry made poor investment decisions in the 1990s, especially with regards to the energy and telecommunication bonds at Enron and WorldCom.

When accounting scandals sent both corporations plunging into bankruptcy, the ripple effects jolted insurers.

"Because of the lack of choices and diversity these companies had in bond portfolios, when the companies went downhill" so did the fortunes of the insurance companies, said Jay Taparia, a principal at Sanskar Investments and professor of finance at the University of Illinois.

"This is really a systemwide problem," added Taparia. "They screwed up, and now everyone is feeling the effects of that."

The article places a lot of the blame on the well-known but largely ignored fact that Big Insurance, unlike any other industry, is allowed to collude to fix prices. The McCarran-Ferguson Act in 1945, I believe, exempted the insurance industry from antitrust enforcement. There was some effort in 1986, when I was an intern in Sen. Paul Simon's Judiciary Subcommittee office, to revoke this exemption, but the Reagan Administration was basically intent on pretending there was no such thing as antitrust enforcement, so it went nowhere. As far as I know, there has not been any concerted effort since then. Big Insurance is very big.

Here are a couple of good reasons why malpractice premiums have risen sharply recently:

Throughout the 1990s, that lowered premium earnings until they were less than what insurers expected to pay in malpractice awards. But for most of the decade, insurers could make up the difference from their investments on bonds and stocks.

In addition, insurers could lower their risk and sell off excess capacity to overseas "reinsurance" companies, much the way banks sell home mortgages to other institutions.

But the international reinsurance market tightened in 2000, meaning there was no market for the excess policies.

And that's when First Professionals Insurance Corp. of Jacksonville filed for a 9.7 percent premium hike based almost entirely on the increased cost of reinsurance.

After that, the malpractice insurance business only got worse. The terrorism attacks of Sept. 11 hit reinsurance companies hard and investment rates dropped, wiping out the margins that had kept insurers afloat - and premiums low.

"Almost everything that could have go wrong, has ... short of a hurricane," said Tom Gallagher, the state's former insurance commissioner and now its Chief Executive Officer, in charge of the Department of Financial Services.

First Professionals' parent company, The FPIC Group, took back-to-back charges on its books in 2000 and 2001. They amounted to a $29.8 million admission that profits had been undermined by inadequate reserves.

It's hard for the average Joe Citizen to understand the byzantine maneuverings of insurance companies. That's why it's so easy to make a scapegoat out of trial lawyers and their clients. There's plenty of data to indicate that malpractice claims affect insurance rates minimally, if at all.

From Gannett News Service: "Despite industry fuss, malpractice crisis doesn't exist." It says: "A Gannett News Service examination of court records and state and national insurance data found no significant increase in malpractice cases in recent years, few jury awards to speak of, and only modest growth in payments made to settle cases with patients. That's true across Florida and throughout [the] nation, records show. " Consider:

* The number of malpractice claims filed per capita in Florida has decreased significantly, and somewhat steadily, since 1995, state insurance records show. Floridians today file malpractice cases at their lowest rate since 1984.

* Jury awards against doctors are rare, state data shows. In 2002, juries accounted for 27 out of 1,308 claims paid by malpractice insurance companies. That's about 2 percent.

* In Brevard County, patients have filed 764 malpractice lawsuits against doctors in the past six years, local court records show. Of those, seven have gone to trial. And of those, just one resulted in a jury verdict for the injured patient.

* A review a insurance data for the same period revealed another two jury awards in Brevard, from cases filed before 1997. Jury verdicts accounted for 1 percent of the 190 malpractice insurance payouts in Brevard in the past six years.

* Adjusted for inflation, the average jury award in Florida - which supposedly drives insurance companies to agree to high settlement amounts - has dropped every year since 1999 to $326,070.

* Total payouts by malpractice insurers statewide have dropped an average of 2 percent a year every year since 1997.

1 plaintiff's verdict out of 764 lawsuits. What crisis?

A message from the people [at least one people, that is]:

For those who, in letters to the editor and in comments, attack our juries and say they can't determine the value of human loss, please read the following:

To realize the value of 10 years: Ask a newly divorced couple.

To realize the value of four years: Ask a graduate.

To realize the value of one year: Ask a student who has failed a final exam.

To realize the value of nine months: Ask a mother who gave birth to a stillborn.

To realize the value of one week: Ask an editor of a weekly newspaper.

To realize the value of one hour: Ask lovers who are waiting to meet.

To realize the value of one minute: Ask a person who has missed the train, bus or plane.

To realize the value of one second: Ask a person who has survived an accident.

To realize the value of one millisecond: Ask the person who has won a silver medal in the Olympics.

To realize the value of a friend: Lose one.

To realize it's all only worth $250,000: Ask a politician, your physician, or the insurance industry.

Questions?

USAToday's page 1 lead: "Hype outraces facts in malpractice debate Degree of crisis varies among specialties and from state to state." In a six week study, the newspaper concludes the following:

* Some states have rapidly rising malpractice premiums, especially in obstetrics, neurology and some surgical fields. But, on average, doctors still spend less on malpractice insurance -- 3.2% of their revenue -- than on rent.

* Large jury awards play a limited role in causing premiums to rise, despite allegations that greedy trial lawyers and frivolous claims are to blame. Less than 2% of malpractice claims result in a winning verdict at trial, according to insurance industry estimates.

* Settlement payouts are up, but that has less to do with pain-and-suffering claims than with higher awards for what are called economic damages -- the patient's medical bills, lost wages and other expenses.

* Insurance companies are boosting rates partly to make up for price wars in the 1990s, when competition kept premiums low, and to counter recent declines in their investment incomes. That investment profit had helped offset losses from malpractice damage awards and the artificially low premiums charged to doctors.

* In some states, medical organizations and regulators have failed to weed out bad doctors. That has caused malpractice rates to go up for all.

There's a lot of other good information in the article, including a reference to a 1990 Harvard study suggesting "that only one in eight victims of medical negligence ever files a claim. When they do, it's an uphill fight: Lawyers sometimes have trouble finding a local doctor who will testify to a colleague's mistakes, attorneys say, and jurors often are inclined to give a physician the benefit of the doubt." Also, did you know that

two-thirds of patients who file a claim don't get a dime, the insurance group's statistics show. About 61% of cases are dismissed or dropped; 32% are settled, with average payouts of $300,000, and only 7% go to trial. Patients prevail in only one in five of the cases that are tried -- about 1.3% of all claims.

The tenor of this page 1 lead suggests to me that the wheels are starting to come off the tort reform wagon.

Just as a yuck, consider the most underrated member of the Hollywood glitz team: the makeup artists! We can see their value by looking at these mug shots of various star types caught without their eyeliner. Not-to-be-missed: Yasmine Bleeth, Tawny Kitaen, and Kim Delaney. Yeesh!

OK, I admit it; I'm petty enough to get a kick out of these media figures looking [a little too] human.

I haven't blogged anything today, because (1) there's not much out there law related, and (2) my brother is in the throes of gall bladder removal surgery and the aftermath, including an endoscopic procedure called an ECRP, or ERCP. Whatever. I've been over at the hospital half of yesterday and today, and I've got to work in between. By the way, doesn't it gall you [pun intended] that the only treatment for gall stones is surgical removal of the gall bladder? It seems like there ought to be a better, non-surgical way. I say this not only as a brother of a gall bladder patient, but as a former gall bladder patient [had mine removed in 1999].

Juror No. 142: Bill Clinton! I think it would be a gas to try a case to a former President of the United States. However, the judge sounds like she's going to strike him because of the potential media and security circus that would probably follow him.

Actually, on second thought, would I want (1) a lawyer on my jury, potentially second-guessing every move I make; and (2) a former law professor, who might intellectualize my presentation?

Hmmm. I got over 1000 hits on Saturday. I wonder who linked to me?

Ankur Goel writes:

In one of my MBA classes, we're studying the case of Progressive Insurance who have designed their payment process to avoid lawyers as much as possible. It's no secret that a claimant with a lawyer will get more in a settlement or in court
than a claimant without a lawyer. What Progressive does is try to get to the claimant as soon as possible (within a 9 hour target) so that s/he will be happy to have the money in their hands and not worry about getting bad service from their insurance company and trying to find a lawyer. I guess my point is this - who's happier: (a) the claimant who gets served really quickly but gets less money, or (b) the claimant who has to drag out payment from the insurance company, hassle with contentious parties, but gets
2-3 times more money? How much is time worth in this equation?

An interesting question. I used to work for a guy who said that it didn't matter how much you got the client as much as how quickly you got it. Like most other things, it's a case by case question, as well as a question of degree. For instance, if I can settle a case today fo $6,000, but if I wait 6 months I could probably get $8,000, then maybe it's not worth the wait. However, if I wait 6 months with a good chance of getting, say, double the money, then maybe I should wait and play it out a bit longer. Ultimately, it's a question that the client should resolve.

James Lindgren, Professor of Law and Director, Demography of Diversity Project at Northwestern University, writes:

The thing I find odd about some of the blogs that criticize Glenn Reynolds or others whose politics they disagree with is the sneering names and dimunitives they use. I often (actually usually) read people I disagree with, but it becomes tiresome to read people who repeatedly refer to George W. Bush as "Shrub," or Reynolds as "Insty" or "Instacracker," or Tom Daschel as "Dasshole," or Hillary Clinton as "Hitlery," or even Donald Rumsfeld as "Rummy." You can use a cute name affectionately ("the Blogfather") and get away with it, but to use cute names REGULARLY in a mean way leaves anyone who doesn't despise the person being mocked thinking that the writer is unfair, since it becomes ad hominem.

I am not arguing that people shouldn't mock those they disagree with--that is often the most effective method of making a valuable substantive point--but making up or using unfriendly names for the person leaves me cold, at least by the 5th or 6th time I read the same "joke" name.

Somebody thinks Glenn is a [insta] Cracker? If by that perjorative, they mean a redneck no-nothing white trash type, then take it from someone who knows, Glenn Reynolds is as far from that type of person as I, a nice Jewish boy, am from Hitler. Glenn is without a doubt one of the most educated, erudite, rounded and world-wise people I know. Besides, he's paying me to say that....

Now, we have an Instapundit and an Antipundit. Antipundit writes:.

Even though I often disagree with his politics and his opinions, I am happy to say that I remain a devoted reader of Glenn "Instapundit" Reynolds. And, one thing that is coloring my perceptions of those bloggers who are Democratic-leaning (do the words "left" and "right" mean anything nowadays?) is the method they use to criticise him. He's demonstrated fairly well that accusing him of "McCarthyism" is nothing more than name-calling - and that it contributes nothing more to reasoned debate than, say, spewing the word "liberal" like it's a racial slur. Yet so many partisan Democratic bloggers quite happily use him as a target for insults that aren't even well thought-out - they just consist of political-hindbrain slurs like "McCarthyite."

My old dad used to say that classifications such as "left," "right," "conservative," and "liberal" were meaningless. Glenn is the personification of this observation. I've known him longer than either of us likes to admit, and he's basically an impossible-to-pigeonhole renaissance man. Mostly, he always has been. Maybe that's why I and those of us who know him just grin and scratch our heads at the world-wide response to Instapundit. We're used to it; he's always been like this.

Myshingle.com [I like this site!] wonders why bar commissions seem to discriminate against small firm practitioners. The linked article suggests some reasons, but I, in my paranoid ravings, have another reason. Small firm lawyers will get sanctioned more readily than large firm lawyers because small firm lawyers are usually representing plaintiffs in contingency cases. Large firm lawyers are usually corporate or insurance defense outfits. Is this not discrimination against lawyers because they are plaintiff's contingency fee lawyers?

There is a link to a Washinton Post article saying that lawyers from Jones, Day, Reavis & Pogue and Keller & Heckman LLP, two very large firms, actually hacked their way into an opposing expert's website by guessing at, and therefore stealing, the expert's password. Said a lawyer suing the firms for this practice:

I want you to tell me how someone guessing at the password is any different than someone guessing at the combination to a safe [in a bank] or guessing at the combination to a garage door opener to get into someone's house to steal their goods."

Kind of legal espionage going on here, and any lawyer -- or client's -- worst nightmare. This is a serious example of "cheating" in an effort to do anything, fair or unfair, to win your case. As a legal technology expert opines:

"It is a serious breach of ethics, and it is a potential serious violation of criminal law," said Mark D. Rasch, a technology law specialist and senior vice president for Solutionary Inc. of McLean. "It is the electronic equivalent of breaking into someone's office to get documents for discovery."

The worst part of this story -- and the part that dovetails with the theory that this is discrimination against plaintiff's firms -- is that these big defense firms, as a result of their hacking, got the expert's testimony excluded, won the case, and beat the ethics charges placed against them by the expert. Sometimes it just doesn't pay to get out of bed in the morning.

Myshingle.com has posted support for what I have always known anecdotally: personal injury claimants do better with lawyers than without them:

According to the article:

[Allstate's] campaign material was tailored to make an accident victim feel valued through efforts like its "Customer Service Pledge," which promised quicker, simpler settlements undiminished by attorneys' fees[...] The literature made heavy use of the word "fair," but didn't even hint at what Allstate's own studies reflected -- that, for claims in the $1,500 to $15,000 range, claimants with lawyers got settlements of two to three times more. Actual averages were $3,464 for claimants without lawyers, versus $7,450 for those who were represented, according to 1995 Allstate training manuals[...] In 1998, after serving as president of the Connecticut Trial Lawyers Association, New London's Robert I. Reardon filed the current action, aiming for class certification. White, a Voluntown resident, was offered a maximum of $50,000 by Allstate for auto accident injuries while negotiating unrepresented. Once she hired a lawyer, her claim settled for the $100,000 policy limits. Similarly, plaintiff Thomas Moore was offered $7,000 without a lawyer, and $20,000 once represented.

Even allowing for the average 1/3 contingency fees, the above statistics show that consumers still come out ahead with legal representation against insurance companies. So the next time you find yourself in competition with the insurance company for a client, throw out these stats and see if that does the trick."

That's the reason Allstate -- and other carriers -- want to get you to settle your case before getting a lawyer. I've always said that the adjusters who get a claimant to sign a release for low money before getting a lawyer have a little star pasted on their record. I think I'm kidding on that. I think.

In a follow-up to a post I had on lawyer soliciations, Carolyn Elefant directs us to this site, discussing lawyer solicitation in more depth. There is a link to a Newsday article saying that 6 personal injury lawyers in New York have been charged with criminal enterprise corruption, bribery and other crimes as a result of using "runners" within hospitals to steer clients toward those lawyers. This is the worst cliche associated with personal injury lawyers: you pay a couple of hundred dollars per case to a guy and he goes around to the hospitals to try to sign up clients for you.

I have heard about runners all my career, and I have known lawyers who paid people to go troll for cases. It is a particularly slimy practice and, as indicated myshingle.com, as often as not it will not result in getting the case. It's tacky, disrespectful to the potential client, unethical, and by the way, illegal as hell. Running a case is cheating. As demonstrated by those New York lawyers who may be guests of the state for many years, cheaters never prosper.

Kentucky: caps won't lower, and could raise, premiums. Duh.

Since Sen. Rick Santorum's wife got a $350,000 verdict in a malpractice case in 1999, he better be against caps, or else he's a hypocrite.

AARP to Tennessee Legislature: Fix Nursing Homes!

Karl Rove invented tort reform! Plus, it looks like the president's senior advisor may have perjured himself:

Rove's claim of responsibility for the tort reform issue is somewhat at odds with a deposition he gave during the tobacco lawsuit. Asked whether he discussed overhauling civil liability law with then-Gov. Bush, he replied: "I can't say that I did. But I can't say that I didn't. I do not recall. I know that tort reform was a significant part of his legislative agenda but it was not my area."

With bozos like this one at the pinnacles of power, my confidence in our government continues to soar....

Here's a very interesting email I got from the Tennessee Trial Lawyers:

Santa Monica, CA - As Illinois physicians strike today over their malpractice rates, a secret e-mail from striking New Jersey doctors offers a rare glimpse at the cynical strategizing behind the scenes among the doctors who staged the walkout.

The leaders of the New Jersey strike announce their intention to "cause confusion and inconvenience," pressure reluctant colleagues "both professionally and economically just as any other 'scab'," divert blame from malpractice insurers, and not reschedule cancelled patient appointments in order to "significantly inconvenience them."

The e-mails were obtained by the Foundation for Taxpayer and Consumer Rights (FTCR), a non-profit, non-partisan organization that has studied the medical malpractice crisis. They are available online, at http://www.consumerwatchdog.org/healthcare/rp/
"New Jersey physicians have shown their real intention is not to protest insurance premium hikes but to terrorize patients, colleagues and the public into becoming converts to their cause," said Doug Heller, senior consumer advocate with FTCR. "Putting patients at risk for cynical political ends is moral malpractice."

In the e-mails, doctors are advised that when they cancel appointments with patients they:

"SHOULD NOT RESCHEDULE) .We can significantly inconvenience them(which is NOT irresponsible) and direct their anger from this to help our cause. Educate them, have them write letters, make phone calls , write letters to the editor of your local newspaper etc... MOST IMPORTANTLY, our pts must TRULY EXPERIENCE significant delays, inconvenience and INABILITY TO CHOOSE a physician"

The e-mails, which originate from Steven P. Shikiar, MD, FACS, tell doctors that they "must stay on message" when they talk to reporters. According to one of the e-mails, doctors must not "talk about your falling income, rotten HMO's, your busy life, the cost of vacations and cars, your malpractice history. These are irrelevent!" The e-mail also describes the hiring of public relations firms to spin the news.

Another e-mail calls for ostracizing physicians that do not strike through economic pressure, presumably by not offering referrals.

"Any physician who doesn't want to participate shows just how disrespectful he is of his colleagues and of his profession. He should be ostracized by his colleagues both professionally and economically just as any other 'scab'."

They also illustrate that the urgency of the so-called "insurance crisis" appears to be more closely tied to political opportunism and timing than any true malpractice crisis. One e-mail urges doctors to act immediately and not lose the opportunity of the moment:

"1 Month from now we will be at war with Iraq. Perhaps their will be more acts of terrorism perpetrated by maniacs from abroad. The legislature, the press, and the public will not be concerned about our plight and frankly neither will we. The time is now."

FTCR called on New Jersey doctors to immediately call off opportunistic strikes which are harming patients to meet physicians' political goals.

Boy, the medical profession sure is a sacred calling.
UPDATE: Here's a link directly to those emails.

Florida's new Chief Financial Officer says in this piece that rapidly rising malpractice insurance premiums are largely because of insurers' practice of undercharging for coverage in previous years:

"In hindsight, rates probably should have gone up about 10 percent a year over the past seven or eight years, and they didn't,'' Gallagher said. ``And when that doesn't happen and should have, you're left with a very large hole, which means we allowed rates over those years to be lower than they should have and created a crisis at this point.''

Gallagher said other factors contribute to medical malpractice problems, including huge losses in the reinsurance market. Reinsurers insure insurance companies as a safety net against catastrophic losses.

Uh-huh.

They want caps, but not for themselves: A doctor in South Carolina sued for and received a verdict for over $30 million in a defamation case. Here's the article, which is not available online without a subscription:

A recent $30.25 million verdict in South Carolina demonstrates that the value of intangible injuries -- a doctor's reputation in the case -- can be substantial.

Gregg Meyers, the Charleston, SC, solo, who represented the plaintiff, said that giving jurors a sense of the value of tangible items helps them gain perspective on the true value of a person's professional reputation -- in this case, that of a medical doctor whose ability to practice medicine was severely diminished by defamatory comments made by the manager of the defendant health care center.

He said the key to success in these cases is letting the jury decide the actual dollar amount.

"I've been trying intangible injury cases for a while now," said Meyers.

"Don't ever tell [a jury] what the value of a case is, but give them a sense of what other [tangible] things are worth," he said, using automobiles or works of art as an example.

On Dec., 19, 2002, after a three-day trial and less than a day of deliberations, a Charleston, S.C., jury awarded the plaintiff $30.25 million. The verdict included a quarter-million dollar award for conversion of a patient list by the employer, Trident Medical Center.

The decision may be one of the largest defamation verdicts nationwide, according to Meyers.

M. Dawes Cook of Charleston, S.C., attorney for the defendant, said that post-trial motions have been filed and are pending, but would not comment further on the case.

Office Conflicts

Dr. Bruce Skinner was an internist who went to work for Trident Medical Center in 1998.

After taking more than a year off for personal medical leave, he returned to work, but was reassigned to a different Trident facility in the small town of St. Stephen, where his employer said he would work until construction was completed on a new, larger facility.

Unfortunately for Skinner, he never made it to that facility.

He quickly discovered many problems in the small office, including the physical condition of the building, which he repeatedly insisted Trident address. But the physical condition of the facility was just the tip of the iceberg.

"They wanted him to bill as much as possible to the people he was treating," said Meyers. But Skinner was trying to provide quality care without expensive treatment, and didn't feel comfortable running up the costs of those services.

According to Meyers, his client was not comfortable with the pressure to bill more, particularly in a small town like St. Stephen.

To compound problems, there was a nurse in the office who was "exerting too much control" over patient care, according to Meyers. He said she was
providing treatment beyond the scope allowable to nurses, and Skinner wanted to put a stop to it.

He reported the activity to the office manager. After months of insisting that Trident address the issues that Skinner raised, they finally made the changes.

The squeaky wheel may get the grease, but in this case, the squeaky wheel also loses his job.

Meyers said that about a week after Trident addressed his client's concerns about the facility, the employer fired him by exercising its "not for cause"
termination provision in its employment contract, citing "business reasons relating to the marketplace," according to Meyers. The medical center added
that he was eligible for re-hire inside the organization.

According to Meyers, the office supervisor never had any complaints about Skinner as a doctor, and even gave him a written "personal commitment to help Skinner find a job," although that help never came.

Then the accusations began flying.

Meyers said the office manager accused Skinner of stealing an EKG machine and of purposely plugging up a sink with the intention to flood the medical facility.

"It didn't make any sense at all. [Trident's] theory was that [Skinner] was anxious to move from the office into the new facility, so he sabotaged the building," said Meyers, who was surprised that the company didn't try to "distance themselves" from the office manager at trial.

"Their argument at trial was that the statements [about theft and sabotage] were true. I think they embraced these bad statements in a way that seemed
to be cavalier," said Meyers.

Meyers pointed out to the jury that there is a disconnect between the company's position at trial -- that Skinner had stolen an EKG machine and had sabotaged the building -- and the office manager firing him "without cause" and offering to help him find work in the future.

His Name Is Mud

Meyers said that after his client's dismissal, Skinner was unable to secure another job in the area, and blamed his difficulty on the allegations being spread about him by the office manager both inside and outside Trident.

A doctor testified that he heard the accusations at a group meeting for independent doctors. Meyers said a nurse who knew Skinner professionally for 10-15 years testified that the alleged theft and sabotage would be shockingly out of character.

Skinner testified that Trident's refusal to return calls from reference requests from potential employers compounded the problem. Meyers said his client would have positive interview, potential employers would request references, and then he'd never hear back from them.

This, said Meyers, was evidence to satisfy the "malice" element that must be proven in a successful defamation case.

The Defense

According to Meyers the defense argued that the statements being made about Skinner were true, and trued statements can't be defamatory.

"They had a comment made by Skinner that he was aspiring to transfer to the new facility and reasoned that by stealing [the EKG machine] he would hasten
the transfer," said Meyers, who called the argument "ridiculous" on many levels, including the fact that the new facility wasn't even ready yet.

"Their circumstantial evidence was that he had access and motive, and we pointed out that it was absurd."

Meyers argued to the jury that if you want your employer to transfer you, the last way to get in the employer's good graces is through sabotage and theft.

"Skinner testified that perhaps [the defense] should have asked the cleaning lady [how the sink got plugged] instead of him."

Meyers also said the expert witness for the defense testified that the reason Skinner couldn't find a job was because of his whistle-blower status at Trident, and that was his own fault.

"They argued that there was little causation between Skinner's ability to find a job and what they did."

"But," said Meyers, "the jury saw a doctor who was trying to do the right thing," and, apparently, didn't believe the allegations of theft and sabotage.

"They didn't try to argue that [his] reputation wasn't worth much," said Meyers.

And, good thing, because the jury found that the value of a doctor's reputation held a tremendous value."

Making The Intangible Tangible

Meyers said that giving jurors analogies and comparisons to the value of tangible things in this world gave the ma perspective and visual image from which they might make the intangible tangible.

"I said to the jury, 'if this case was about a truck, you could say that that truck was worth $5,000. And if that truck had a winning racehorse in the back, it might be worth $15 million. [What] if the truck was carrying the Mona Lisa -- even that's easy to value. This truck was carrying the reputation of Dr. Skinner. Rank this kind of thing."

"Certain intangible things about life can be valued," said Meyers.

"I'm glad the jury took this case seriously."

And the same source it's reported that a San Rafael, California jury has returned a $31.7 million verdict for an opthamologist who accused disability insurer UnumProvident Corp. of cutting off his benefits as part of a management scheme to boost profits.

Isn't it nice to see these doctors getting their day and their due in court? Isn't it too bad they want to deny the same rights to all us non-doctors?

In the "that's interesting" department, I just had a call from Edwin Kim at Strata Productions. They are in pre-production of a new movie called "Heavens Fall," about the Scottsboro Boys case. Here's their web site. He says they're looking to raise $4 million or so in financing, that they have raised over half of that amount so far, and are looking for other investors for their syndicate. They have Gary Sinise as one of the leads in the picture. Apparently, this indie production company is a stepchild of Chicago's famous Steppenwolf Theatre, in which Sinise has been active. Here's some more information about the Scottsboro Boys case.

It's not every day that I get to sling the movie lingo. It was fun. He's going to send me one of their investor kits, so I'll post more if there's anything interesting in it. If anyone is interested in investing in this theatrical release project, call Edwin Kim at (847) 864-7415 X 227. Happy moviemaking!

Here's a link, via Instapundit, showcasing Walter Olson, an intellectual leader of the tort reform movement. In my own admittedly biased fashion, here are some thoughts, after reading the profile:

Olson is a senior fellow at the Manhattan Institute, a conservative think tank funded by those entities who stand to benefit from tort limitations;

Olson has never practiced law, and it's unclear from the article whether he even went to law school. It appears from the article that he has gone from one conservative think tank to another, without much contact with the "real world." In my humble opinion, it's hard to criticize philosophies and tactics of trial lawyers if you haven't ever been involved in trial litigation;

The profile says: "Mr. Olson’s vision could be the inspiration for John Grisham’s latest legal thriller 'The King of Torts,' in which obscenely rich trial lawyers fly their private jets in ostentatious loop de loops, landing every now and again to mine an industry for everything it’s worth." See my review of the book, but suffice it to say that the fictional defendants in that book were in fact at fault; they were responsible for the wrongs they were sued for. Please remember that most of we trial lawyers are just trying to make a living. The tort "reformers" always oversimplify when they refer to trial lawyers as if they all were filthy rich and just sit around thinking up ways to screw defendants. It just ain't so.

The piece says: "Surprisingly, lawyers aren’t terribly harsh on Mr. Olson. 'I find my best fans are lawyers because they’re the ones who know most of all how bad things are,' he said. Well, here's one lawyer who's hard on the guy. Things are not that bad!

Olson doesn't much like liability caps [that's good], but does advocate a loser pays rule as a disincentive to file not-well-taken claims. If a case is found by a judge or an appellate court to be frivolous, the court can order the plaintiff to pay expenses, including attorney's fees to the defendant. That's the law now. Given the high expenses of major litigations -- you can spend millions in expenses in a typical tobacco case -- the plaintiffs' bar needs no additional disincentives.

There's a reference to libertarianism in the article. As I understand it, one of the fundamental tenets of libertarians is "the less government the better." If that is the case, then why are all these so-called libertarians supporting major new federal tort limitation legislation that would cause profound damage to our 7th Amendment right to a jury trial?

Sorry -- just me venting. Well, I am venting, but I'm not very sorry.

Hmmm. I guess ABA Journal missed this site when they did a piece about legal blogs. Or maybe they discriminate because I don't belong to the ABA? I'm trying not to feel left out. Link from InstaGod, uh, I mean, Instapundit. I mean, hell, he gets all the good links....

Bernie emails me to dispute RJGator's take on Lucianne.com's hatred of lawyers:

I read Lucianne.com daily although I rarely comment, and I have to tell you that RJGator is misinformed. Most of the people on the site don't hate all lawyers, they just hate the lawyers who bring outrageous lawsuits. What is suprising to me is how defensive lawyers get, any criticism of lawyers is considered bashing and that's just not true. Lucianne.com staff have never said that lawyers do not serve a purpose, so I would hardly call bringing a lawsuit an "epiphany". I think you guys need to grow a little thicker skin ;)

The site does link to a Tech Central Station Column that reads, in part:

The punch line in the McDonald's lawsuit will be if sly attorneys for the plaintiffs can get a judge and Americans in general to give up another bite of liberty to feed the lawyers' purses. The hope here is that people are not so dumb after all, and will send this case to a permanent rest, where it belongs.

Sounds like lawyer bashing to me. And, let's keep in mind that the plaintiffs in that McDonalds case are exercising their liberties. Those "sly" plaintiff's lawyers are exercising their liberties. It's the tort reformers who want to circumscribe our liberties. Let's please remember that.

My parking lot attendant told me about this case yesterday, but I couldn't find a link. So thanks to the emailer who sent me the link. He says, as commentary:

This case reminds me of the classic case from tort's class where the property owner rigs a gun to shoot at a burglar when he comes through the door. There were a number of us in my torts class who said "too bad, so sad, shouldn't have been breaking into someone else's house to steal their stuff." It's been more than seven years since that class, and I still feel basically the same way when I read this story. I hope the verdict gets thrown out on appeal.

19 years ago, we had the same discussion in my torts class. I can see both sides of the argument. I can understand the policy consideration that one cannot defend with deadly force a non-deadly instrusion. However, the idiot shouldn't have been trying to break in in the first place. Note that the jury in this case tried to split the baby: "jurors placed 50 percent of the blame for the death on Harris, but assigned the bar's owners 40 percent and placed 10 percent on the property's owner."

In sum, a verdict consistent with well-established legal concepts, though nonetheless still controversial.

Maybe she didn't die in vain. Jésica Santillán, the 17 year old, who died last weekend at Duke Medical Center, may become a focal point of the debate over malpractice caps, according to the New York Times. It's a shame, of course, that it takes this type of tragedy to viscerally illustrate the the stakes in the debate over whether to limit damages.

Said one Republican lobbyist:

The entire effort hit a brick wall this weekend," the lobbyist said. "This was a very heavy lift under the absolute positive best of circumstances, and the circumstances just took a turn for the worse.

And, apparently even die-hard Repubs are starting to head for the hills:

But another senior Republican, Senator Orrin G. Hatch of Utah, said any legislation to cap malpractice awards would have to have an exception for egregious cases.

"I question whether anything would pass that did not have some way of solving the hard cases," said Mr. Hatch, who is the chairman of the Senate Judiciary Committee and is working on a draft of a Senate bill.

What Sen. Hatch seems to miss is the fact that every medical malpractice case is "the hard case." I haven't seen one yet where the defense did not fight the case as if it were the last lawsuit on Earth.

And:

Mary Alexander, the association's president, said it would be extremely difficult for the Santilláns to sue under a $250,000 cap, because it costs nearly that much to bring a case.

"Her tragedy shows what this arbitrary, one-size-fits-all cap means," Ms. Alexander said.

Read the whole article to see that Big Insurance and the doctors still don't -- or won't -- get it. Example: Tom Delay, the House Majority Leader, said, "Obviously, the tragedy in North Carolina was just horrific and unfortunate....It doesn't change anything."

Tell that to Jessica's parents.

UPDATE: Here's a story from FoxNews on the subject.

There's an old joke that legislation is like sausage: the process of making it is really gross. Here's a link to Georga Senate Bill 133, which, among many other things, establishes a $250,000 cap on pain and suffering damages in med mal cases, increases the standards for imposition of punitive damages, increases the difficulty of qualifying expert witnesses in medical malpractice cases, and best of all, establishes fairly extensive immunity for emergency room treatment and follow up. As indicated by the Georgia Bar Association, the bill "incorporates the Georgia Chamber of Commerce initiatives . . . ."

This bill follows an ongoing trend by tort limiters: don't prohibit causes of action, simply pass hard-to-understand legislation that makes it so hard to prove a case that no one will ever be able to do it. Eventually lawyers will stop taking the cases, because it's too difficult to win them. Thus the deck becomes stacked ever more heavily against plaintiffs.

Instalawyer.com's Atlanta correspondent, RJGatorEsq., passed on some information about a website called Lucianne.com. People who frequent the site ("LDotters") can post news articles there, and can attach comments to the articles. The site is run by Lucianne Goldberg, of Linda Tripp fame.

It seems that Lucianne and the LDotters hate lawyers with a passion so furious it is almost sick. Every lawyer is a greedybloodsuckingambulancechasingbottomfeeder who should be disbarredandtakenoutandhorsewhippedandshot. And all lawsuits are frivolousridiculousmeritlessandshouldbethrownout. If a person dies in an accident, the death is not important: what is important is their hysterical fear that somewhere, some attorney is going to make some money.

On Tuesday, the Lucianne.com staff and an LDotter seemingly experienced an epiphany. The staff posted a plea for information, apparently to help an LDotter bring a lawsuit against a doctor. The text of the post [click the link above and scroll down] reads:

LDotter In Need Department. The staff here at Lucianne.com would like you to visit the following web site: http://www.geoffreykeyeslawsuits.com. If anyone has had any experience with this doctor (he has treated patients nationwide) we would appreciate your getting in touch with us at our Email address lucianne@LComHdq.com . All shall be explained in due course."

Review of the site indicates that Keyes is a plastic/reconstructive surgeon. I guess someone's upset with his work, huh.

The editorial staff at Instalawyer welcomes LDotters into the real world--the world where medical malpractice does happen, cases have merit, and attorneys are a valued part of the judicial system. Also, congratulations to Lucianne, the Lucianne.com staff, and the LDotters on their epiphany, however belated. Also, thanks to our newest roving blogospondent, RJGatorEsq., for his ace investigative work in unearthing this link, and even helping draft my post!

Here's an interesting Flash presentation about the Israeli 1981 destruction of Iraq's soon to be operational nuclear reactor. Included is a very interesting 1975 photo of Saddam with Jacques Chirac and others. Is there any wonder that Chirac seems so partial to Saddam?

Ernie the Attorney linked to my Grisham review, too. I couldn't agree with him more about his conclusion: "Of course, I'd be happy if I could write stuff like that and convince people to pay me lots of money for it."

Heh. Heh.

Sean Harding has put me on his list of blogs he likes. Thanks. I'll return the favor if I can ever find the time to figure out how to do it [sigh]....

Jinn of Quality and Risk links to my review of Grisham's new book. I can't tell if he agrees with me or not....

Geeksblog.com LIKES me. He/She Really LIKES me!

Douglas Vatter is a self-professed "insurance guy" who agrees that pain and suffering caps are wrong. He also maintains that carriers are losing money, and that this latest tort limitation effort is all about minimizing the unpredictability in insurance payouts. He says that the lawyers' [and the clients, I presume] best bet is to find a stabilizing solution, or else they will get cut out of or cut back in the equation.

If you look a couple of posts down, you will find the link to a Business Week op-ed, making a convincing case that the unpredictability in malpractice payouts is chimerical. If the amounts of settlements are relatively stable, i.e., growing at the same rate as medical costs, and if there is no explosion of new filings [and there isn't], then where's the unpredictability? Douglas V. thinks the data points to a huge number of pending claims that are over 10 years old. If the cases are over 10 years old, at least in my experience, then they aren't very good cases, or they are closed without payment and not notated correctly. Either way, there is not likely to be a big surge in payouts due to these ancient matters.

Yes, Virginia, there are slimy lawyers out there. This Sun-Times piece describes the apparently improper solicitations made by some personal injury lawyers in the wake of the E2/Epitome tragedy. Of course, I don't know Illinois' ethical rules relative to direct solicitation; in Tennessee, at least until recently, we are not permitted to directly solicit a potential client within 30 days of an incident. Maybe the ethical rules are different in Chi-Town.

However, what's sauce for the goose should be sauce for the gander. Insurance companies and their representatives should not be allowed to solicit these same bereaved, either, without giving the bereaved a real chance to consult counsel. It's a common tactic for carriers to rush to get to potential claimants before a lawyer gets involved, with the purpose of getting them to settle for low money without having had the chance to consult with someone who wants to represent their interests. While I deplore slimy solicitations by some plaintiffs' lawyers, I also deplore the same kind of slimy tactics used by the carriers. We shouldn't forget about that. And bottom line, those plaintiffs' lawyers will work to protect the bereaved, while the carriers will work to screw the breaved, if they can.

But, Brian King directs me to an article from Business Week, a publication that certainly would be considered favorable to the pro-business tort reform side of the debate. Pertinently:

MYTH 1: Premiums have risen more slowly in states with caps on pain-and-suffering awards.

MYTH 2: Runaway jury awards are forcing insurers to raise rates.

MYTH 3: The number of mega-awards is growing.

MYTH 4: Courts are clogged with an exploding number of claims.

Conclusion: On this and many other key points, proponents of caps simply aren't coming up with the facts to make their case. Instead, they're relying on scare stories--always a bad starting point for making serious policy decisions.

Read the whole story -- it cogently discusses the situation.

You know, it's hard to blog with 2 kids and a law practice hanging over my head....