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Posts Tagged ‘Law’

Why fighting judicial campaign money matters

In broken tort reform, buying elections, debunking the myth, ideology, medical malpractice, MI Supreme Court, propoganda, Uncategorized, undo tort reform on June 13, 2013 at 2:57 pm

In response to an article posted on Mother Jones (“Secret Money Is Now Swaying State Judicial Elections“), I posted the following:

There is a strong “Why should I care?” aspect to judicial buying.

Here is a scenario: you go to your local hospital with an emergency.  Through negligence or error you receive injurious care.  You wish to sue.  You shop your case to local attorneys first, but few

lawsuit lotto

lawsuit lotto (Photo credit: Shira Golding)

show even slight interest.  Small town lawyers need medical care too.  You call the big firm that funds the state’s hockey team.  Their nurse indicates that your case is “not a winner” and wishes you luck.

You find out that because of malpractice caps (put in place to protect innocent doctors from “runaway juries” and “slick lawyers”), counsel is hesitant to take any case that is not an outright slam dunk.  No gray area cases or ones which a jury could be swayed.  The cost of litigation is just too high.  Counsel has to find an exact equal physician to testify (their expert will be put on a mini trial within the trial) before the trial, submitting an Affidavit of Merit (these start at $1500 and go up, depending on the hired gun).  Then this expert must testify at trial, and already your case is running up quite a tab (a contingency fee for a capped case starts at $25,000–which sounds like a lot until you break it down into costs and fees).  So, Counsel picks only obvious winners.  Others get a smile and well wishes.  Merit has little bearing.
So, with the Statue of Limitations running (two years is typical so that physicians don’t have the “fear of litigation” looming over their heads), you push on, convinced that your bad doctor should be ferreted out of the system; that he should not be harming others like he harmed you.
In order to file your case, you will need to, six months in advance, file a Notice of Intent.  This gives the doctor six months (actually, it gives his insurance carrier–he will not have any direct contact with the case until called to testify–and few ever make it that far) to prepare.  Medical records are shared (HIPAA is automatically waived and your medical records are shipped around from insurance office to Defense Counsel to their own expert witness hired guns).  You give up all claims to HIPAA protections when you move to sue.
The six months pass and Defense (as they are now known–usually a well-healed firm from a large city on retainer by the insurance company) establishes their contingency case, reading to throw motions for dismissal as soon as the actual Complaint is files (the Notice of Intent is really a preview or draft of the Complaint).  The Complaint is filed and the Affidavit of Merit is supplied (if there is more than one defendant–say the physician and the hospital for lack of adequate oversight–the cost of this “pre-litigation requirement” moves into the tens of thousands).
Defense will immediately file a Motion to Dismiss, attacking the Affidavit of Merit (mini-trial even before the trial starts–Defense strategy is to have the case thrown out before a jury ever hears it).
Your small case, up against the best legal counsel in your state, will have many options for the judge to dismiss it.  The legislators in your state, fearing that “good doctors” will seek less litigious states, have enacted (often at the heading of the insurance lobby) “tort reforms” (think of “Hot Coffee”) that give the judge ample discretion to head Defense’s claims.
Elected judges, backed by a packed “tort reformed” legal structure, biases your legal claim from the beginning.  Upon appeal, additional panels of judges, also elected, will determine the validity of this structure.  An appeal to the State’s Supreme Court, also elected, will “rule” along party lines almost exclusively.
You are still injured, probably for life.  The bad doctor is still “practicing,” injuring others who, themselves, will have no legal recourse.
Insurance wins (the don’t lower their rates in accordance to the numbers of cases filed–only 1 in 8 of valid cases are even filed–and few of them make it to trial–fewer still result in a verdict for the injured party).
Bad doctors are not held accountable.
Injured patients will seek the medical care for their injuries available to them: most often at the public’s expense (Medicare/Medicaid).
And if the judges are elected, then the legislation that has also been “influenced” by campaign money, headless of legitimacy, stands.
Medical Malpractice is the 6th leading cause of death, ahead of victims of gun violence.
With a purchased judiciary, there is no justice.
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Michigan Courts dead last in Judicial Independence

In broken tort reform, buying elections, Campaign Finance, Get the Ca$h, MI Supreme Court on October 19, 2011 at 7:18 pm

I came a little late to this report

(WHICH STATES HAVE THE BEST (AND WORST) HIGH COURTS?)

Unfairness for All

(published in 2008), but the information and methodology presented (see below) probably has not changed in the ensuing years.

Taking to task the ranking put out each year by the Chamber of Commerce (the largest provider of republican court campaign money in Michigan), this study does NOT ask senior lawyers at large companies (Fortune 500) which states they like and don’t like (which are pro-business leaning and which are not).  The CofC:

… surveys ask senior lawyers at corporations that earn more than $100 million per year in revenues to grade state court systems, from A to F, and aggregate their responses.

No, this survey tabulated independence on how often a judge, affiliated with a stated party, went along with or dissented from that stated party.  That is, how much did they go along with their party (please note that a judge is SUPPOSED to vote as an independent arbiter of the law, NOT to be a representative of a political party).

According to the numbers, Michigan Justices vote in lock-step (I assume that the Democrats are just as bad as the Republicans on this).

Overall, it doesn’t make Michigan look good in a national survey…

At least the Parties are getting their monies worth.

The Players: a Scribe to produce content: Mr. Patrick J. Wright

In broken tort reform, buying elections, ideology, MI Supreme Court, propoganda, Think tank on December 8, 2009 at 11:41 pm

We have already identified that a good, and inexpensive way to lobby the highest state court is to align, enlist or adopt an advocacy group (PAC, special interest…all really just IRS labels). We have also seen how one, lone writer can wrap up ideology in the form of editorials.

It is one such scribe which will be today’s focus: Mr. Patrick J. Wright.  He is:

is senior legal analyst at the Mackinac Center for Public Policy, where he directs the Mackinac Center Legal Foundation. He joined the Center in June 2005 after serving for three years as a Michigan Supreme Court commissioner, a post in which he made recommendations to the court concerning which state appeals court cases it should hear.

We have heard about the Mackinac Center as an arm for “free market” legislation.  That is fine.  It is a free country.

I would note that when filling ones staff with experts, it is a good idea to find ones whose legal experience mirrors ones ideological profile.  That is, hire the ones who have said what you wish to say.  Assure pedigree.  Mr. Wright is the right person for this Right job.  In fact, if one is looking to influence the highest state court, find a person who worked for them, at a lower-level job (reading through the cases and making recommendations on which ones to take up) during the time that you wish to match ruling-wise (the 2003 court was very  conservative, pro-business and all about upholding “tort reform”).

Once on staff, free him up to write to his heart’s content.  You might even get him to land editorials for national news outlets.  His opinion, because it is just that, need not be grounded in fact.  In fact, facts may even begin to muck up a good argument, so be wary in employing them.

Once you have the right man for the job, produce the content, influence the vote, and let the right party win.

The Methods: get your ideas out–editorials

In buying elections, Campaign Finance, Get the Ca$h, ideology, Think tank on December 2, 2009 at 3:49 am

Once you have identified your friends (think tanks, special interests groups, etc.), let them get your agenda out in front of the voting public.  Like the guy at the right, James M. Hohman, who works for the Mackinac Center for Policy (advocates of “free markets”–whatever that may be other than very conservative, Glenn Beck-esque ideologies).  His job/bio, as stated on the center’s web site, reads as such:

James M. Hohman is a fiscal policy analyst with the Mackinac Center’s fiscal policy initiative. He holds a degree in economics from Northwood University in Midland, Mich.

Part of his duties as a “fiscal policy analyst” is to write policy papers (like this one where he argues that Michigan’s economic crisis is not tied to the automaker’s decline–he fails to note to what it is tied–but the tax system is working just fine).   Once a paper is written, it is posted to the center’s web site (like this one: Site Selection, Jennifer Granholm [Mackinac Center]).

The article, though, lives on in other forms.  For instance, that very same article appears as an editorial in the small town newspaper The Big Rapids Pioneer in their News and Opinions page.  Couched as an editorial, this position paper now commands, at least for some readers, the respect of a newspaper’s editorial blessing.

If you, with your agenda, can pull this off often enough, your message, like a drum-beat, will be heard often, with tacitly coded authority granted just by being printed in the editorial page of the local newspaper.  For many voters, those who read and think about things, this may be enough to slide them to your position.

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The Players: Think Tanks: Mackinac Center for Public Policy

In buying elections, Campaign Finance, Get the Ca$h, ideology, Think tank on December 1, 2009 at 10:26 pm

If you are wishing to position yourself for the 2010 elections–and you know you are–you first need to identify (or establish) a “think tank.”  Ignore the thinking part of the name, as your tank will produce news articles, editorials, opinions, studies, etc. that, systematically, advance your agenda.  You also need to establish these tanks as “non-partisan,” which is a nifty way to denounce anyone claiming partisanship–it is not affiliated with any party…[wink, wink].

The Mackinac Center for Public Policy (named after the island–an internal state reference–that will only confuse a poor speller) presents itself as “the Mackinac Center provide incisive, accurate and timely analysis of critical policy issues.

Of course, “non-partisan” doesn’t mean that your donor list isn’t comprised of one party/ideology over another…birds of a feather and all that.

Once you have a think tank(s), or a few dozen, then the business of ideological spamming may commence.

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What have others said about the Mackinac Canter for Public Policy?

  • The Mackinac Center is the largest conservative state-level policy think-tank in the nation. The Michigan-based organization promotes market-driven policies on a wide range of issues and espouses limited government principles. The Center’s success in influencing Michigan policies has served as a model for other state-level think tanks.  http://www.rightwingwatch.org/content/mackinac-center-public-policy
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Is that change I smell in the air…

In MI Supreme Court on November 18, 2009 at 5:56 pm
U.S. Supreme Court building.
Image via Wikipedia

The Michigan Supreme Court has adopted, though not published, new recusal rules that will align them with Capterton Massey–sometimes it takes a big stick from the US Feds to get something done locally.

The Lansing State Journal says:

Under rules adopted by a 4-3 majority this month, a member of the court is to step aside if the jurist’s “impartiality might objectively and reasonably be questioned.”

Further, if an individual justice receives and rejects a request for recusal, a party in the case can appeal to the full court for further consideration.

In other words, the justice whose status might be compromised does not serve as the sole arbiter of his or her ability to uphold the office.

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