Jonathan B. Wilson

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Jonathan Wilson is an Atlanta attorney with more than 19 years of experience guiding growing private and public companies.  He currently serves as the outside general counsel of several companies and is the former general counsel of (NASDAQ: WWWW) and EasyLink Services (NASDAQ: ESIC).  He is also the founding chair of the Renewable Energy Committee of the American Bar Association's Public Utility Section.

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Monday, February 28, 2005

Judge Cuts Plaintiffs' Attorneys' Fees
Judge Loretta A. Preska (S.D. NY) in the Bristol-Meyers securities class action reduced the award for the plaintiffs' attorneys' fees from 7.5% of the $300 million settlement down to $12 million (a little more than 3%). 
Judge Preska noted that the complaint was little more than a chronological restatement of comments defendants had made in the media and that defendants had agreed to settle the case contemporaneously with their settlement of an SEC enforcement action, presumably to "put their house in order."  This, she suggested, indicated that plaintiffs' counsel had done relatively little work.  "Among securities class actions, this case as a whole was neither unique nor complex." 
What was noteworthy was Judge Preska's willingness to set aside the 7.5% fee agreement plaintiffs' counsel made with its clients because it would have resulted in a "windfall" to the attorneys.  "[I]t is not thirty times more difficult to settle a thirty million dollar case as it is to settle a one million dollar case," the judge remarked.
7:24 am est 

America's Million Lawyers
America now has more than one million lawyers and writers outside the U.S. take note. 
7:12 am est 

Sunday, February 27, 2005

Olson on Caps
If you follow the debate on the linkage between damage caps and insurance rates, you won't want to miss Walter Olson's helpful piece and follow-up post here and a recent NY Times article and its aftermath. 
3:00 pm est 

Saturday, February 26, 2005

The Ownership Paradigm

Several recent columns make the point (intentionally and unintentionally) that there is a significant shift underway in the way that conservatives view, and talk about, the welfare state and government benefits.

A liberal writer in the Baltimore Sun compares President’s Bush’s talk of an “ownership society” as conservatism’s latest attempt to destroy the welfare state. 

In large part he is correct, though the point of conservatism has never been to delight in the misfortunes of the poor, the sick, the elderly, etc.  Rather, conservatism opposed the welfare state for because (depending on the speaker and the period):

(a)    the welfare state was an unfair appropriation of the assets of some (through taxes) and an unfair distribution of those assets to others (through the “benefits” doled out by the welfare state);  or

(b)   the welfare state diminished individual freedom through its appropriation and reallocation of assets; or

(c)    the welfare state doesn’t work because the reverse incentives created by welfare state benefits remove the incentives for individuals to create wealth and escape poverty.  Taxing the rich removes their incentives to generate more wealth (creating jobs and growing the tax base) and perpetuating the dole removes the incentives for individuals to develop the work skills needed to raise their own standards of living.

Consider Collin Levey’s latest column, commenting on arguments before the Supreme Court in a pending case on the exercise of eminent domain. 

In Kelo v. City of New London, the town of New London, CT wants to use its power of eminent domain to force about a dozen homeowners to sell their properties so that a large swath of land can be re-developed.  The town argues that the area is blighted and must be re-developed in order to benefit the public good.  The re-developed area, says the town, would have shops, better housing, new job opportunities and would benefit the town by growing the tax base.

Not surprisingly, the homeowners argue that they like their homes just the way they are.  And, as Ms. Levey argues, if the state can seize an individual’s assets simply because the state can find a more valuable use for those assets, then there are no property rights left.

But why are property rights important?  What is the link between property rights and the principles of pluralism and self-determination that are the core of the American democracy?  It is hear that conservatives are re-explaining conservatism in a way that is resonating with voters differently than in the past.

First, property rights work.  As the case of school vouchers is beginning to demonstrate, by having the ability to “own” something, the owner takes a heightened interest and a greater care in the asset being owned.  When parents “own” the right to determine where and how their child goes to school, parents not only care more, but they care differently.  They are willing to invest time and efforts into the asset they own (their child’s education) than when that asset is provided to them without a sense of ownership.

The same principle can apply to nearly any other form of welfare “benefit” from health care, to retirement and education.  The welfare state converted what should have been individual assets (health, retirement and education) into hand-outs that arrive at the discretion of the state.  Conservatism does not propose to make Americans less healthy, less secure in retirement or less educated, but rather proposes that Americans should own their health, their retirement and their education.

From converting social security retirement savings from a benefit to an asset, conservatism advances the cause of ownership, thereby converting welfare recipients into property owners.  By empowering parents to determine where their children go to school, conservatism converts passive recipients of state largesse into property owners with a stake in the educational process. 

While these are the two primary fronts on which this war has been fought, there will be (and should be) others.  Nearly every welfare state benefit plan can be converted into an ownership society plan.  Why not replace government-provided health care with individual health spending accounts, empowering individuals to make their own choices and purchasing decisions?  Why not replace government-directed subsidized loan programs with individual investment accounts to empower individuals to save towards home ownership, education, and the formation of new businesses?


Myron Magnet makes this point in her February 25, 2005 piece, The War on the War on Poverty

Implicit in compassionate conservatism was the epochal paradigm shift that is now all but explicit. Taken together, compassionate conservatism's elements added up to a sweeping rejection of liberal orthodoxy about how to help the poor, which a half century's worth of experience had discredited. If you want to help the poor, compassionate conservatives argued, liberate them from dependency through welfare reform; free their communities from criminal anarchy through activist policing; give them the education they need to succeed in a modern economy by holding their schools accountable; and let them enjoy the rewards of work by taxing their modest wages lightly--or not at all.


And, on top of all that, the overwhelming success of the 1996 Welfare Reform Act, which became ever clearer during President Bush's first term, utterly exploded the idea that the hard-core poor were not working because of a lack of jobs. Welfare mothers crowded into the work force; the rolls dropped by roughly half. Not only were their children not freezing to death on the streets by the thousands, as even so wise an observer as the late Sen. Patrick Moynihan had predicted they would, but in fact child poverty reached its lowest point ever three years after welfare reform. Lack of opportunity? Hardly.


It's in this context that we should understand President Bush's campaign for Social Security reform. It is part of the large and coherent world view that has evolved out of compassionate conservatism. What has always made America exceptional is limitless opportunity for everyone, at all levels--the ability to find a job, to advance up the ladder as you prove yourself, and to prosper. The poor especially have flocked to these shores for just this chance, and have proved the promise true. A giant welfare state--whether its clients are the poor, the "lower third of the economy," or a cohort of government-pensioned retirees who almost outnumber the taxpaying workers who support them--hampers the job creation that makes all this opportunity possible. President Bush is determined to keep the dynamism vibrant, and to encourage and empower the poor to take part in it, rather than to suggest they are unequal to the task.

9:55 am est 

Friday, February 25, 2005

The Bush Ouija Board
You just have to see IowaHawk's latest
7:26 am est 

Geras on International Law
Professor Norman Geras has a provocative piece on international law and its applications. 
7:21 am est 

Hold the Corners
George Will writes about one police chief's efforts to fight crime in Chicago.  His success gives cause for optimism. 
7:13 am est 

Thursday, February 24, 2005

Freedom in Europe and America
Janet Daley had an excellent piece in yesterday's Telegraph in which she contrasted the ongoing interest in promoting liberty in the U.S. and Australia as opposed to Europe's willingness to trade liberty for "stability".  Her argument was that Europeans had lost the fervor for liberty after a series of disastrous encounters with liberty.  (She identifies Bonaparte and World Wars I and II). 
While I have sympathy for her conclusions, I read history somewhat differently.
The U.S. and French revolutions were different from their inceptions.  The American colonists sought to recover their lost rights as Englishmen (at least in the early days of the American Revolution) and did not set upon creating a new nation until the prospects of restoring their English rights dimmed.
In contrast, the French revolutionaries were utopians, seeking to create a new society not based on any historical precedent.
Many contemporaries noted the difference, including British parlimentarian Edmund Burke (read his Reflections on the Revolution in France) and American Federalist Alexander Hamilton. 
As 20th century philosopher Hannah Arendt chronicled in her tome, On Revolution, while both France and the U.S. had difficulties in restoring civil society, the U.S. experience was one of restoring pluralism and the rule of law.  The French experience, having no historical precedent, brought the White Terror and a series of quasi-democratic regimes. 
The U.S. revolution resulted in a written constitution that has survived over 200 years and produced a civil society and economy that serves as an exemplar for the world.  The French constitution has been re-written several times and the French people take to the barricades every time they disagree with their government. 
France's 19th century colonies became the focus of anti-colonial guerrilla wars in the 20th century.  At the dawn of the 21st century, many of those former French colonies are either still struggling with their colonial past or are moving with deliberate speed to build an industrialized democracy based, at least in part, on the U.S. model.
The difference is not so much between the U.S. and Europe as it is between the English-speaking peoples (borrowing Churchill's phrase) and the non-English Europeans.  While the U.S. Constitution is noteworthy for its longevity, the unwritten English constitution is even older. 
The longevity of both, and the vibrant republics they have spawned across the globe, give the U.S., the U.K., Australia and other members of the "coalition of the willing" the confidence in democracy that much of continental Europe lacks. 
8:25 am est 

Wednesday, February 23, 2005

Reinstatements for Everyone
The Sarbanes-Oxley Act is just beginning to work its mischief as Cardinal Bancshares has been ordered to reinstate (with back pay) its former CFO after the CFO refused to participate in meetings to review certain financial issues without the presence of his own attorney.  
The purpose of the whistle-blower protection provisions in the Sarbanes-Oxley Act is to protect employees who report wrongdoing up the chain or to law enforcement.  The Act specifically contemplates the reinstatement of employees who are terminated in retaliation for whistle-blowing.  While this sentiment is admirable it is mind-boggling to imagine how the CFO of a public corporation could function effectively after being reinstated in the manner contemplated by the Act.  
8:04 am est 

Feeling Better Already
I can't stop laughing at IowaHawk's latest satire about fundraising to raise the self-esteem of overprivileged urban moms. 
7:57 am est 

Who? Me?
Newt Gingrich is taking publicity trips to promote his new book to . . . wait for it . . . Iowa and New Hampshire.  Asked whether he would ever run for elected office again, the former Speaker said, "It strikes me as implausible." 
7:41 am est 

Federal Sentencing Guidelines
University of Colorado law professor Paul Campos has a very persuasive piece on the inequity in the Federal Sentencing Guidelines. 
7:36 am est 

Monday, February 21, 2005

Mis-information Nation
A piece in the Nation manages to bungle what could have been a reasoned piece on the Class Action Fairness Act
The writer describes the Senate's passage of the act, in a 72-26 vote, as "lopsided" (I have the feeling that if it had been closer, it would have been "partisan") and then proceeds to recycle the usual complaints that the Act will cause the "extinction of civil action as a tool for fighting corporate criminality". 
Setting aside the factual question of what is "corporate criminality" and whether such a thing exists, it is simply wrong to suggest that the CAFA eliminates the viability of class actions.  As the piece is ultimately forced to conclude, the Act is "mere procedural tinkering, transferring from state to federal court actions involving more than $5 million where any plaintiff is from a different state from the defendant company."  
The writer's problem with this "procedural tinkering" is that (in his view) "federal courts are much more hostile to class actions that their state counterparts."  While this may or may not be true, it is indisputable that no one will lose the right to sue under CAFA.  Any claim that could have been filed before this change in procedure will still be viable under CAFA; all that may have changed is which court will have jurisdiction. 
But this is a poor excuse for argument: don't change the procedure because I worry that plaintiffs will lose more often.  If every plaintiff should get every penny he demands, why bother litigating at all? 
The CAFA was a useful first step in reducing this country's $300 billion tab for litigation because it will improve the uniformity and predictability of results.  Uniformity and predictability are outcome neutral.  Whether good for plaintiffs or defendants, lawyers will be more able to predict the outcome and therefore better able to negotiate settlements and avoid litigation altogether.
12:50 pm est 

Sunday, February 20, 2005

Class Actions for Beginners
The Salt Lake Tribune has a great article on the basics for non-lawyers with questions about CAFA.  Even more interesting (for me at least) is the quote from my old law school professor, Roger Schechter
4:13 pm est 

So Sue Me! - The Board Game
New board game.  Like Monopoly, but with lawyers. 
4:08 pm est 

Saturday, February 19, 2005

President Signs Class Action Fairness Act
As expected, President Bush on Friday signed the Class Action Fairness Act, eliminating a loophole in the diversity jurisdiction rules that had allowed nationwide class actions in state courts to avoid removal to federal courts.  The Act also places limits on plaintiffs' attorneys' fees in "coupon" class action settlements.
The usual suspects made the usual arguments, with Minority Leader Nancy Pelosi intoning:
"To irresponsible corporations, however, the class action bill is a belated Valentine.  It is exactly what they asked for.  Powerful corporations will be largely immune from the accountability that currently comes from meritorious state class action cases.  For example this bill would help shield large corporations from any accountability for Enron-style shareholder fraud, for activities that violate employee rights under state law, and for telemarketing fraud targeted at the elderly." 
Did you ever notice how, to the mind of a left-wing politician, anything that benefits business generally is a gift to "powerful corporations"?  How about the weak corporations?  Doesn't it benefit them too?  What about mom-and-pop small businesses that wind up as defendants in a class action?  Won't they also benefit from the relative procedural certainty and predictability that comes from litigating in federal trial courts?
Notice also that any kind of wrongdoing (i.e., "telemarketing fraud") is always directed to a possible Democratic constituency (i.e., "the elderly" - read, "our friends at the AARP").  What about telemarketing fraud that is aimed at college students and soccer moms? 
Of course, Pelosi is simply reading her lines from a well-worn Democratic playbook.  The Democratic party had been opposing the CAFA for approximately ten years as the bill would pass or be poised to pass in the House, only to get filibustered in the Senate.  When it became apparent that passage was inevitable this year, however, numerous Democrats turned on party leaders and joined the majority, making the CAFA's passage a largely bipartisan victory - 72-26 in the Senate and 279-149 in the House. 
7:19 am est 

Thursday, February 17, 2005

Congress Passes Class Action Fairness Act
Close on the heels of the Senate's adoption last week the House today passed the Class Action Fairness Act. 
While there is much work left to be done, this is a significant procedural change for this type of litigation that should bring increased uniformity and predictability to putative class actions.
2:39 pm est 

Mencimer Strikes Back
In response to Stuart Taylor's critique of her criticism of his article (link requires paid subscription), Washington Monthly writer Stephanie Mencimer has responded with a further analysis of her arguments in this month's edition
7:53 am est 

Wednesday, February 16, 2005

Georgia Tort Reform Signed by Governor
Georgia's Senate Bill 3., passed just two days ago by the Senate, was signed today by the Governor. 
As detailed in earlier posts here, the new law includes a $350,00 cap on noneconomic damage awards, adoption of proportionate liability (abandoning the common law rule of joint and several liability among joint tortfeasors), reform of the collateral source rule, adoption of expert witness rules like the federal Daubert rules, and an attorney-fee shifting offer of judgment rule.
Georgia is now the fifth state in the country with an offer of judgment rule that has the potential to shift attorneys' fees. 
5:45 pm est 

Bill Providing Tort Immunity to Firearm Manufacturers Introduced
Cliff Stearns (R-FL) and Rep. Rick Boucher (D-VA) have introduced a bill, HR 800, that would exempt firearms manufacturers from certain kinds of tort liability.  (The text of the bill is not yet available through Congress' web site). 
The press release announcing the bill notes that gun manufacturers have been the targets of several dozen lawsuits in the past decade, as municipalities have tried to shift the cost of handgun violence onto handgun manufacturers.  More than thirty states have adopted laws giving special tort immunity to gun makers. 
3:21 pm est 

Third Circuit Struggles With Punitive Damages
The Third Circuit has issued an opinion in Willow Inn, Inc., v. Public Service Mutual Ins. Co., a case involving a challenge to an award of punitive damages that, arguably at least, may have exceed the 10:1 guideline set forth by the Supreme Court in State Farm v. Campbell.
I'll post some notes on the case later. 
8:47 am est 

Tuesday, February 15, 2005

Leadership Sells
Brendan Miniter's piece in today's Wall Street Journal Online makes the point that, by leading through President Bush's reform agenda, Republicans have the opportunity to display why they're worth keeping in office. 
Conventional wisdom has it that the party in power tends to lose mid-term elections.  For that reason, the party in power is often tempted to avoid bold policy initiatives and instead "play it safe."
It is this kind of non-leadership, however, that makes mid-term losses a self-fulfilling prophecy.  The electorate voted Republicans into office for a reason and that reason was not that they wanted Congressmen who would nibble milquetoast and drink tea.  Americans voted for a strong national defense, victory in the war on terrorism, democracy in Iraq and the Middle East, and ownership society reforms in social security, civil justice and tax policy.
If you give the voters what they asked for, they will reward you.  Playing it safe, however, is a loser's game. 
4:19 pm est 

Monday, February 14, 2005

Georgia Tort Reform Passes
The Georgia Senate today voted to approve the House version of S.B. 3, setting a cap of $350,000 on noneconomic damages. 
Previous posts in this space have outlined the bill, including its offer of judgment provisions.  With the Governor's signature a near certainty, Georgia will become the fifth state in the country to have a fee-shifting offer of judgment rule when the bill is effective. 
5:22 pm est 

Sunday, February 13, 2005

Cookie Monster Strikes Again
Not knowing when to accept defeat and quit the field, Wanita Renea Young of Durango, Colorado, dubbed the "cookie monster" in some stories, has gone on a public relations offensive to tell her side of the story
Ms. Young claims that her $930 small claims lawsuit against two teenage girls who delivered a plate of cookies to her doorstep at night has been, somehow, misinterpreted.  She argues that the teenagers have used "half-truths" to make themselves appear sympathetic in the media and that, instead, we should all feel sorry for her because she does not "feel safe in [her] own house anymore".
Color me cynical, I suppose, but if you get a fright from teenage girls dropping off plates of cookies at 10pm at night, your sensitivity meter must be turned a little too high.  If you then proceed to sue those girls for the medical bills you incur dealing with your overwhelming fear (of cookies?, of the night?, or teenage girls?) you ought to expect that your fellow citizens are going to think you, at the least, strange.
As Philip K. Howard of Common Good has noted so well in his books, common sense requires that not all disputes be resolved through litigation.  Lawsuits like Ms. Young's suggest that every act, even the most generous, contains the potential for liability; no one is safe because anyone can be sued for anything.  
Restoring civility and a sense of common purpose in America requires that there be a substantial area of human interaction that is not the subject of legal concern.  Infusing the potential for litigation into every facet of life has changed society for the worse. 
The public's reaction to Ms. Young's story suggests that there may be hope for America. 
10:21 am est 

Friday, February 11, 2005

Georgia Reform Update
Alert readers noticed that there is a technical gap between the version of S.B. 3 passed in the Senate and the version passed yesterday by the House.  The Senate version caps noneconomic damages at $250,000 while the House version raises the cap to $350,000.
Late yesterday, after the House passed its version, the Senate took up the House's version.  The majority voted for passage of the House bill, 28-27 but Senate rules required 29 votes for final approval.
The Senate then adjourned for the week, vowing to take up the measure again next week.
While it's disappointing to wait another week for this long-overdue reform, and the space of a few days could give the opponents of reform the opportunity to work mischief, GOP leaders should work quickly to bring about a final version of the bill for the Governor's signature.
7:13 am est 

Senate Approves Class Action Fairness Act
In a remarkable coincidence, on the same day that the Georgia House adopted a tort reform package already passed in the State's Senate, the U.S. Senate passed the long-awaited Class Action Fairness Act.
The Act has passed the House several times in the past decade but had always gotten hung up in the Senate.  On a bipartisan vote of 72-26, however, the Act passed easily this time.
House representatives have already called for swift passage of the measure without amendments so passage appears almost certain.
The Act would modify several provisions of the Federal Rules of Civil Procedure so that class actions with numerous plaintiffs in several states would have access to federal courts.  Supporters claim that keeping these interstate class actions in federal courts will ensure greater uniformity and predictability in the law.  Eliminating the uncertainty in outcomes, they claim, will ensure greater efficiency and reduce the cost of litigation.
7:02 am est 

Thursday, February 10, 2005

Georgia Passes Tort Reform - 5th State in the U.S. With Offer of Judgment Rule
Taking aim at the $286 billion wasted every year on litigation, the Georgia House of Representatives today passed Senate Bill 3, a comprehensive tort reform package with caps on noneconomic damages, an offer of judgment rule and other tort reform provisions, wrapped in a package with other provisions that are specific to medical malpractice cases.
While the bill's sponsor's may have been motivated in large measure by the health care community, it may turn out that the offer of judgment rule is the most important provision of the law.
Assuming that the bill is signed by the Governor, the bill will amend O.C.G.A. 9-11-68 to allow a party to a lawsuit to make an offer in settlement.  If the "offeree" (the party receiving the offer) refuses to settle, but subsequently receives significantly less than the offered amount in the final judgment, the offeree will be obligated to reimburse the offeror for its attorneys' fees and litigation costs from the time of the offer through the end of the case.
Once enacted, Georgia will be the fifth state in the U.S. with an offer of judgment rule that shifts attorneys' fees.  (Some states have rules that shift administrative costs - a much smaller sum - but not attorneys' fees).
As I explain in Out of Balance (publication expected March 2005) by putting a party's attorneys' fees "in play" the rule should work to deter frivolous lawsuits and encourage the rapid settlement of meritorious lawsuits.
3:46 pm est 

Georgia Reform Bill Headed for Vote
A local Atlanta TV station is reporting that "dozens" of protestors showed up at the Capitol yesterday to protest the Senate's tort reform proposal.  It seems that the House may take up the Senate's bill today, which passed the Senate last week with a comfortable margin. 
S.B. 3 would cap noneconomic damages at $250,000 per defendant ($750,000 in the aggregate) and would create an offer of judgment rule that would allow parties to shift their attorneys' fees if the opposing party rejected an offer of settlement. 
Local media coverage continues to be marginally unfavorable to the legislation but uniformly biased and uninformed. 
The local TV coverage, for example, described the offer of judgment rule this way:
Other changes include a penalty for people who refuse an out-of-court settlement. If someone gets an offer from an insurer, but chooses a jury trial instead, they would have to pay the doctor's legal costs if the jury ends up awarding them about the same as the pre-trial offer. That change is intended to encourage patients to settle out of court.

The offer of judgment rule is neither a "penalty" nor is it "intended to encourage patients to settle out of court". 

The rule instead grants both parties a basic measure of fairness by allowing either party to shift its attorneys' fees if the other party unreasonably refuses to settle.  The rule is fair because either the plaintiff or the defendant can make a settlement offer. 

It works to make justice more efficient by creating economic incentives for both sides fairly to estimate their potential for liability in the case.  The only party harmed by the offer of judgment rule is the party that foolishly refuses an offered judgment and continues its cases only to recover less than what was offered.

The local media does no service to its audience by missing the facts so badly.

7:12 am est 

Wednesday, February 9, 2005

Dayton Won't Run in 2006
Senator Mark Dayton (D-MN) announced today that he would not run for re-election in 2006.  Senator Dayton will probably be longest remembered for closing his Washington office around the time of the 2004 election for fears of terrorism. 
Republicans will be gunning to pick up this seat in the mid-term elections.  Bush carried Minnesota by approximately 2 percentage points in 2004.   
3:39 pm est 

CAFA Coming to a Vote
It appears that the Class Action Fairness Act may be coming to a vote this week.  A piece on NPR's Morning Edition suggested that a vote in the House may follow next week. 
Update:  The Hill is also reporting that the CAFA is on a fast track, with as many as ten Senate Democrats joining the majority to push the bill through. 
9:01 am est 

A Nip and a Tuck for Trial Lawyers?
The American Trial Lawyers Association, the lobbying arm of the plaintiffs' bar, is trying to give itself a face-lift.  Recognizing that it is looking at a coming wave of reform efforts and has recently lost significant reform battles in Texas, Mississippi and Ohio, the plaintiffs' lawyers are coming to realize that they new to present a new public image.
So, what is the ATLA doing?  At a retreat in Palm Springs they showcased their retention of PR powerhouse Jon Haber, a former executive with Fleishman-Hillard. 
Yeah, nothing like a tete-a-tete at Palm Springs with a PR mogul to reinforce your message that "trial lawyers care". 
7:18 am est 

Tuesday, February 8, 2005

Penumbras and Emanations
James Taranto gets its right with a piece on how the right to marital privacy has been judicially interpreted into a right to . . . well, just about anything. 
12:55 pm est 

Sunday, February 6, 2005

Good Fences Make Good Neighbors
Setting new standards under the heading "no good deed goes unpunished" a woman in Colorado sued two girls who delivered homemade cookies to her doorstep at night. 
Wanita Renea Young, 49, of Durango Colorado was awarded $900 in damages against the two teenage girls.  The woman claimed that she was so upset by the late night visitation that she required medical attention.
After hearing of the startled neighbor, the two girls apologized and offered to pay the woman's medical bills.  She refused to accept their apology, however, and proceeded with her lawsuit. 
When asked why she resorted to litigation Ms. Young said she "hoped the girls learned a lesson."
And what lesson would that be?
3:12 pm est 

Opponents to Reform Confuse the Law
Today's Atlanta Journal-Constitution contains this confused bit of reasoning:
Malpractice cap may punish unemployed

The Atlanta Journal-Constitution
Published on: 02/06/05

As lawmakers debate ways to rein in medical malpractice lawsuits, advocates for patients are raising a sticky question — should a person's compensation for disabilities be limited simply because she wasn't employed?

A proposed $250,000 cap on "pain and suffering" damages in cases where doctors injure patients has advocates for stay-at-home parents, children and retirees arguing that such caps create a two-tier system of justice. People without jobs get less justice, they say.

Baloney.  This reasoning misunderstands the difference between economic and non-economic damages.

The cap on noneconomic damages in proposed S.B. 3 limits recovery for "pain and suffering" and other "hedontic" damages.  These concepts have nothing to do with "economic" damages which include medical expenses, lost wages and lost earning potential. 

There is no pending legislation in Georgia that would limit economic damages.

The question of how to value the diminished earnings capacity for a plaintiff who is unemployed is a valid question, but it is utterly unrelated to any cap on "noneconomic" damages. 

Critics of reform lose their ability to make valid arguments when they intentionally confuse real issues with bogus scare tactics. 


10:33 am est 

Saturday, February 5, 2005

Class Action Fairness Act Nears Approval
According to a piece in today's Legal Times, the Class Action Fairness Act is likely to pass the Senate soon, with passage in the House all but guaranteed. 
The CAFA is set to be considered by the Senate on Monday (February 5th). 
10:57 pm est 

Friday, February 4, 2005

Class Action Fairness Act Rides Again
NPR's All Things Considered ran a piece this morning on the Class Action Fairness Act.  This bill has been introduced from time to time since 1995, coming the closest to passing Congress last year when it passed the House but was filibustered in the Senate.
The heart of the bill is a change in the diversity rules for federal jurisdiction in class actions that would give federal courts jurisdiction allow most nationwide class actions, 
5:51 pm est 

Thursday, February 3, 2005

Georgia House Moves on Litigation Reform
On the heels of the Senate's passage of a tort reform bill, House Republicans have proposed a handful of litigation reform bills, including H.B. 231 (abolishing the rule of joint and several liability and adopting a rule of proportionate liability among joint tortfeasors), H.B. 233 (barring suits for medical malpractice against emergency room doctors except for malicious or wanton misconduct), H.B. 234 (adopting the federal Daubert rule, limiting the use of expert testimony in litigation), H.B. 235 (limiting noneconomic damages in medical malpractice cases to $250,000 per defendant and $750,000 in the aggregate) , H.B. 237 (limiting medical malpractice claims against hospitals), and H.B. 238 (modifying the rule of forum non conveniens to prevent forum shopping by plaintiffs). 
Of special interest is H.B. 239, which proposes an offer of judgment rule.  Unlike the offer of judgment rule in S.B. 3, H.B. 239 permits either the plaintiff or the defendant to make an offer.  If the offeree declines the settlement, the offeree will be liable for the offering party's litigation costs (including attorneys' fees) if the final judgment is "significantly less favorable" that the offered settlement.
Under the bill "significantly less favorable" is defined as a variation of more than 20% from the offered amount.  S.B. 3 requires an improvement of 25% for an award of attorneys' fees. 
8:18 am est 

Tuesday, February 1, 2005

Tort Reform Passes Georgia Senate
SB 3 passed today. 
2:21 pm est 

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Jonathan B. Wilson is an Atlanta attorney at the law firm of Taylor English Duma LLP.  Jonathan B. Wilson provides legal advice to investors, companies and business executives involving corporate law, securities law, SEC matters, intellectual property, website and Internet legal issues, start-ups, limited liability companies, partnerships, 1934 Act matters, outsourcing, strategic alliance agreements, contracts, and other matters of importance to growing private and publicly-traded companies.