I heard someone discussing the McDonald’s hot coffee case the other day, and like most folks, the speaker knew nothing about the real facts of that case. Regardless, this case still impacts the debate about reform of our civil justice system (i.e., tort reform). A new documentary, Hot Coffee, to be released in 2011 explores how the case has been misrepresented to advance the anti-civil justice agenda of big business, including the health care lobby. I thought this was a good time to help spread the truth about the facts of this case. Read the rest of this entry »
McDonald’s Hot Coffee Continues to Spill into Tort Reform Debate
July 21st, 2010
Learned Hand: The Spirit of Liberty
July 1st, 2010
I like to read. Of course, I like to write also, but this is the first blog post in a month. And likewise, I started and finished only one book in June: Learned Hand: The Man and The Judge by Gerald Gunther. Judge Learned Hand was a name first encountered in law school; although he became a judge in the early 20th Century, his fifty years on the bench produced many valuable opinions, some of which end up in law school texts. He was a non-partisan yet also a progressive, who believed in judicial restraint even when he was in the majority. In this regard, Judge Hand would be one of a kind today.
Law Basics: Employment at Will
May 28th, 2010The most fundamental concept in employment law is “employment at will.” Most employees are employed “at will.” Employment at will is a presumption that applies to employment relationships of an indefinite duration. An employee at will can be fired for good reason, bad reason (including an immoral reason), or no reason at all–at anytime and without any notice. Ouch. Pretty harsh. Read the rest of this entry »
Video Infoclip: My First Nursing Home Case
May 8th, 2010There were lots of facts that lead to the favorable result in my first case. First, the family was good people. Second, there were multiple examples of understaffing with harmful consequences. Third, there were clear falsifications of records, like the flow care chart that indicated my client ate most of her three meals on days she was not at the facility. (I am sure this provided much of the motivation for the punitive damage award.) And, finally, we presented an honest case and did not ask for astronomical damages. After the case we presented, the jury knew the case was significant.
It was a case that changed my practice and changed me.
There were lots of facts that led to the favorable result in my first nursing home case. First, the family “was good people.” Second, there were multiple examples of understaffing with harmful consequences. Third, there were clear falsifications of records, like the flow care chart that indicated my client ate most of her three meals on days when she was not at the facility. (I am sure this provided more than a little of the motivation for the punitive damage award.) And, finally, we presented an honest case and did not ask for astronomical damages. After the case we presented, the jury knew the case was significant.
A Pragmatic View of Employment Law
April 19th, 2010The life of the law has not been logic; it has been experience.
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The confusion with which I am dealing besets confessedly legal conceptions. Take the fundamental question, What constitutes the law? You will find some text writers telling you that it is something different from what is decided by the courts of Massachusetts or England, that it is a system of reason, that it is a deduction from principles of ethics or admitted axioms or what not, which may or may not coincide with the decisions. But if we take the view of our friend the bad man we shall find that he does not care two straws for the axioms or deductions, but that he does want to know what the Massachusetts or English courts are likely to do in fact. I am much of this mind. The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law.
Certainly, an evaluation of “what the law is?” must begin with the text of the law, whether statutory or court decisions. But, instead of the text being the end of the inquiry, it is usually only the beginning. Each case is unique. Facts will blend with the Law, which in some respects is a social practice. And so, the question in practice is “how will the law be used?” Experience is a good guide; a broad perspective is best. Read the rest of this entry »
Law Basics: Paying for Legal Representation
April 16th, 2010There are various ways to pay your lawyer, and this video is simply an introduction to the topic. Knowing your options and understanding the reasoning behind fee alternatives can help you work with your lawyer in finding the best solution for your case.
The Ripple of the Radical Sabbatical
April 4th, 2010
On April 1, 2005, I shut down my law practice for a one year sabbatical. And in one of the best received columns I’ve published, I wrote about my decision in a piece titled Laying Down the Law. The radical thought of taking a break from my law practice had seemed to come out of thin air (although the notion may have come from a Jack Johnson song). Nevertheless, the idea quickly seized me. And with a wife who was all game, it quickly became set in stone.
Quotable Holmes: Lawyer as Prophet
March 21st, 2010
Oliver Wendell Holmes, Jr. played an important part in the evolution of our constitutional law as well as the philosophical underpinnings of American jurisprudence. Before he began his tenure on the Massachusetts Supreme Court or his 30 years on the U.S. Supreme Court, Holmes wrote The Common Law, which traced the evolution of the common law dating back to the middle ages. The famous quote “The life of the law has not been logic; it has been experience,” can be said to be the basis for pragmatic jurisprudence. The treatise established Holmes as a thought leader in post civil war America and to this day he influences other influencers, not the least of whom is Judge Richard Posner.
In 1897, the Harvard Law Review published the influential essay, The Path of Law, which further elaborated Holmes pragmatic view of law. I was reading it again the other night and wanted to introduce some quotes to the readers of this blog. So, according to Holmes, what is the practice of law? It is prophecy: Knowing enough to predict what judges (and juries) will do.
When Neglect Does Not Add Up: Nursing Home Understaffing
March 16th, 2010Staffing in a nursing home is a matter of math. Do the math to add up the profits for understaffing. Do the math to subtract the costs to those who are injured. Math will tell you whether there are enough minutes in the day. In my opinion, a jury is a variable to plug into the mathematical equation of understaffing to make sure that providing bad care does not pay. Read the rest of this entry »
Lights, Camera, Law Practice: A Video Introduction
March 11th, 2010I love the opportunities that technology offers the consumers of professional services. As it relates to law, technology allows people to gather information about their legal rights, make an informed decision about whether to seek legal advice, and compare and contrast lawyers through the online presence of each. However, there are some things that the written word and still photos on a website cannot communicate. Video contains a little additional insight into people and their personalities and it is ideal for communicating helpful information in short, usable chunks. My practice is set to use video toward both ends.
