Day on Torts

The Florida voters passed a constitutional amendment to limit attorneys’ fees in med mal cases to 30% of the first $250K in damages and 10% in any recovery about $250K.

So, a $1M verdict would entitle the patient’s attorney to a total fee of $130K. A $2M verdict would result in a fee of $260K. The result: in other than a slam dunk case where no liability or causation discovery was necessary, a plaintiff’s attorney would be working for $100 per hour or less, an amount less than the paralegal rate in major cities.

Florida plaintiffs’ attorneys then starting giving their potential clients the option of waiving their “constitutional right” to a fee cap.

Elizabeth Shin, a student at MIT, committed suicide. Her parents sued MIT and others. A trial judge has dismissed the case against MIT but allowed it to procede against two psychiatrists and two administrators who are not mental health professionals. This article in the Boston Globe has a nice discussion of the legal theory advanced by the plaintiffs and accepted by the trial judge.

The plaintiffs are pushing the envelope on this one. However, as I said to a fellow plaintiffs’ lawyer the other day, there are only two types of lawyers who make common law – those that are stupid and those who take calculated risks.

Let me explain. Some of us take cases with full knowledge that we are going to have to advance the law to get to a jury. Some folks take cases with no idea that they have no right to recovery until they see the motion to dismiss or motion for summary judgment. The problem with the latter approach is that some cases do not have the right facts to make good law or the facts are not developed appropriately to make good law. Similarly, if you don’t know you are pushing the envelope it may be hard to muster the best arguments in the time period allowed to respond to a motion.

Paul Minor, a friend and plaintiff’s lawyer from Mississippi, was indicted on a bunch of charges, including bribery. Oliver Diaz, Jr., a member of the Mississippi Supreme Court whom I got to know during some trips to Mississippi, was also indicted.

The trial has been going on for weeks. Last week, Justice Diaz was found “not guilty” on all counts and Paul was found “not guilty” on several counts and the jury was hung on some others.

Some folks say that Paul and the Justice’s most damning sin was that they were Democrats.