Giving Thanks For Alternatives To Traditional Litigation

Tribal CourtAs Americans celebrate Thanksgiving this week, children in schools across the nation are learning about how the first Pilgrims relied on Native Americans to survive their first year. That’s an important part of our history, but there is still a lot that we can learn from Native American tribes today, including how to use courts to resolve conflicts.

Did you know that there are about one hundred and fifty tribal courts across the United States? Unlike state and federal courts that use an adversarial system to resolve disputes, many tribal courts use a different approach.

The National Institute of Justice, an agency of the US Department of Justice, points out that while some indigenous justice systems are based on the American paradigm for courts, many others use a holistic philosophy that focuses not just on punishment and providing victims with payment, but on bringing harmony and peace to the community.

According to the NIJ website:

“The holistic philosophy is a circle of justice that connects everyone involved with a problem or conflict on a continuum, with everyone focused on the same center. The center of the circle represents the underlying issues that need to be resolved to attain peace and harmony for the individuals and the community. The continuum represents the entire process, from disclosure of problems, to discussion and resolution, to making amends and restoring relationships.”

Sounds a lot more constructive than traditional litigation, for sure. Because of its many benefits, US courts have adopted some of this philosophy in recent years and now actively promote alternatives to litigation like mediation and arbitration. Not only is alternative dispute resolution usually much less expensive, aggravating and time-consuming than litigation, it has a tremendous success rate.

It’s so successful, in fact, that state and local governments around the country fund mediation programs and strongly encourage courts to utilize them. Unfortunately, many people still don’t even know these programs exist and often unnecessarily spend tens of thousands of dollars on lawyers when their problem could be better resolved in mediation or arbitration.

One big reason for this is likely that we’re bombarded with ads by personal injury lawyers and rarely hear anything about mediation or arbitration in the media. If we counted how many ads there are on TV for personal injury lawyers compared to ads for mediation services, I’d guess there would be about 100,000 ads for personal injury firms for every one ad there is for mediation, and that’s probably being conservative.

Mediation and arbitration aren’t going to work in all disputes, but this Thanksgiving, it’s important to know that alternative dispute resolution is available, and it often leaves people thankful they ditched their lawsuit and tried something new. For more information, one great source is the National Association for Community Mediation.

“Psychic” Sues Governor Of New York For Reward Money

PredictionA self-described psychic from Texas is suing the State of New York and Governor Andrew Cuomo for reward money Cuomo offered during a manhunt for two inmates who escaped from a prison in upstate New York last summer. This is a bizarre case that could be even more bizarre if information I discovered while doing research on this case turns out to be more than a coincidence.

On June 7, Governor Cuomo announced on Twitter that a $100,000 reward was being offered by the state for information leading to the arrest of escaped inmates Richard Matt and David Sweat. The manhunt made national news and caught the attention of an Eric Drake in Texas.

Drake says he’s a psychic and says he called the governor’s office after hearing about the reward to provide information that he claims helped locate the men. He doesn’t say with whom he spoke or even know if anyone connected with the investigation ever received the information he provided, but considering the “clues” he professes to have provided, it probably wouldn’t help his case anyway.

In a 31-page lawsuit, he could only point to vague opinions he gave that day such as “The two inmates separated for some reason” and “the police were walking right by or over them were they were hiding.” These two general statements eventually turned out to be true, but they are hardly the kind of leads on which investigators could act.

Most of Drake’s rambling lawsuit is devoted to offering “evidence” of his supposed psychic powers. In an effort to prove he’s legit, he says he foresaw his mother’s death, predicted the death of President Obama’s grandmother just before election night 2008, and gave Washington, D.C. police information that would have helped them catch the snipers who killed 17 people in 2002 if they just hadn’t ignored him.

Now, for the bizarre coincidence. While looking into this case, I found out that an Eric Drake from Texas has been named a vexatious litigant on more than one occasion. A vexatious litigant is a legal term that describes someone who has abused the justice system by repeatedly filing frivolous lawsuits and who has had their right to sue again taken away from them by a judge. This phenomenon may come as a surprise to anyone who follows the US legal system, but it actually does exist. Too bad it’s not used more often.

Anyway, authorities in Texas haven’t yet confirmed whether the Eric Drake who has sued Cuomo is the same Eric Drake mentioned here and here as a vexatious litigant, but it seems like an amazing coincidence. It’s just my opinion, but after reading the lawsuit against the governor of New York by Eric Drake, it looks just like the strange cases filed by the vexatious litigant in Texas, who also represented himself.

I’m not usually one to make predictions, but there’s one thing I can foretell with certainty in this case: the taxpayers of New York are going to have to pay to defend this ridiculous lawsuit. A judge there has allowed the case to proceed without the usual filing fee. Why?Because, says the judge, “the plaintiff has only about eighty dollars in his bank account.”

Advertising By Personal Injury Lawyers Skyrockets

AmbulanceChasersWe’ve all seen them more times than we can count…television advertisements by personal injury lawyers. Lately, I’ve been wondering if it’s just my imagination, or if there are more of those ads on TV than usual. Well, a new study has just confirmed; it’s not my imagination.

According to a new report published by the US Chamber Institute for Legal Reform, the amount of money being spent on television ads by lawyers is growing faster than the amount of money spent on TV ads by any other industry in America.

The report, Trial Lawyer Marketing: Broadcast, Search and Social Strategies, estimates that in 2015 alone, TV ads by lawyers will total $892 million. In fact, their television ad spending grew six times faster than all other television ad spending during this period. The total for this year is 68% more than they spent in 2008.

Lisa Rickard, president of ILR, says:

“The plaintiffs’ bar orchestrates some of the most sophisticated and relentless marketing campaigns in our society.”

But it’s not just TV ads on which personal injury lawyers are spending their money. They’re also aggressively seeking clients on the Internet, social media and mobile devices. The report found that twenty-three of the top twenty-five Google key words linking ads to user searches are for personal injury law firms.

This spending reflects a major change in philosophy for lawyers. There was a time when they felt that the idea of buying advertising to promote their services was unseemly.

Those days are obviously long gone. Considering how often the American public is exposed to messages promoting litigation as the only option for resolving disputes, law schools and bar associations would do well to remember what Abraham Lincoln advised his fellow lawyers many years ago:

“Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser – in fees, expenses and waste of time.”

That may be a novel idea, but Lincoln’s advice is just as good today as it was when he was practicing law.

Lack Of Flesh-Sensing Technology On Table Saw Leads To Money-Sensing Lawsuits

Table SawIt probably wouldn’t be too much of a stretch to say that one the most amazing inventions in the power tool industry over the past 20 years is a table saw that can stop the blade virtually instantly when it comes into contact with skin. It’s an incredible product, but unfortunately, it has spawned numerous personal injury lawsuits, too. Here’s the story.

Using a patented braking system, the flesh-sensing technology can stop a spinning blade when it comes into contact with skin so quickly that it leaves a user with a minor cut instead of a lost finger. It was invented in 1999, but it’s still hard to find them in stores. One big reason is a fear of lawsuits. Many retailers are worried that if the blade doesn’t stop every time and someone is injured, they’ll be sued. In today’s litigious society, this is a constant and very real fear.

With thousands of the common table saws still being used, there are many people still being injured. One of those people is Victor Ingram.

According to an article in the legal publication, the Cook County Record, Ingram claims to have suffered permanent injuries after his fingers came in contact with the blade of a Sears Craftsman table saw. Even though the saw worked exactly as advertised and was safe when used properly, Ingram’s lawyer claimed the saw was “defectively designed” simply because it didn’t include flesh-sensing technology.

The lawsuit is still pending, but it’s likely that Ingram’s lawyer knows about other similar lawsuits, including one by a Massachusetts man who won $1.5 million. In that case, he was injured after removing the blade guard on the saw, but that didn’t stop him from being able to convince a jury that the real reason for his injury was that his saw was defective because it didn’t have the saw stop technology. Read more about that at

Now, I want to be clear, it would be wonderful to see this technology on every saw in America. But it would also be wonderful if all cars were as safe as Sherman tanks. The reality is, that’s just not realistic. If courts are going to require product makers to put every expensive innovation on their products that might be available, many consumers won’t be able to afford the things they need, and some products won’t come to market for fear of lawsuits.

More and more these days, judges and juries are being asked to overlook personal responsibility in order to award someone money who was injured by a product that is safe when used correctly. That is the real issue here.

Aunt Sues 8-Year-Old Nephew After Exuberant Hug Leads To Injury

courtroom:gavelOur “Let’s Be Fair” radio commentary this week is about a New York City woman who sued her eight-year-old nephew for $127,000 over an injury she says he caused. If you’ve already heard the commentary, you know she didn’t get the money. However, what we didn’t talk about was a ridiculous comment she made in court that may have helped doom her case, and that’s worth a minute here.

First, a little background. In 2011, Jennifer Connell travelled to her nephew’s house in Connecticut to celebrate his birthday. When she arrived, the boy leaped into her arms to give her a big hug. She fell to the ground and broke her wrist. For more on that part of the story, click here.

After her lawsuit made the news, there was quite a public uproar against the aunt’s decision to drag her nephew into court. One newspaper story even dubbed her the “Auntie Christ.” Ouch. So, in what could reasonably be viewed as an attempt to save her reputation, she went on some news shows to explain why she sued the little fella.

On the Today Show, she said she was told by an attorney that the best way for her to get money to pay for her medical bills would be to sue the eight-year-old. It was “a formality with an insurance claim.” She adores the child, she explained, and this was just a way to use the law to get the family’s insurance company to pay her bills.

What she probably didn’t bargain for, however, was the reality of having to face tough and even awkward questions in court. That’s where things took a serious turn for the worse.

On the stand, she claimed that the injury wrecked her social life and made it “difficult to hold my hors d’oeuvres plate” at parties. Can you imagine the reaction of the jurors when they heard that? Some legal observers think she may have lost the jury with that comment.

Then, her attorney had to argue that the eight-year-old was legally negligent. Yet as Brendan Maher, professor of law and director of the Insurance Law Center at the University of Connecticut School of Law, explains, the jury had to “decide whether when little Sean hugged her — and fractured her left arm in the process — he behaved like a reasonable 8-year-old, or an unreasonable, negligent one.” The professor went on to say that:

“When you are 8 years old and hugging your aunt, you are behaving like a reasonable 8-year-old.”

The jury evidently agreed, and it took just twenty-five minutes to throw out the case and award the woman nothing. Good for them.

My question is this: how did we get to the point where an attorney who has spent three years studying the law believes the best choice in this situation is to sue an eight-year-old boy who was trying to hug his aunt? Is this what our law schools are teaching these days? If so, I think I know an eight-year-old who could testify to what a poor decision that is.

Lawsuit Leads To Cancellation Of Popular Pumpkin Hurling Contest

Punkin Chunkin 5There probably hasn’t been more disappointment associated with a pumpkin-related event since the Great Pumpkin failed to show up for Linus and Sally in the beloved TV special, “It’s the Great Pumpkin, Charlie Brown.” I’m talking about the cancellation of the annual World Championship Punkin Chunkin competition in Delaware after nearly 30 years.

No, I’m not out of my gourd. This is a serious event that has had a major positive economic impact on the rural part of Delaware that has hosted the competition. As many as 20,000 fans have travelled to Sussex County in recent years to see pumpkins be launched in the air via slingshots, catapults and even pneumatic cannons.

The event started in 1986, and there’s an interesting history of the competition on the Punkin Chunkin website. Despite its enormous popularity – it was even featured on the Discovery Channel’s, Mythbusters, show – it was cancelled in 2014 and won’t be held this year, either.

Why? A couple of years ago, a volunteer was injured in an ATV accident and filed a lawsuit. Daniel Fair was a “spotter” and, along with others, rode an all-terrain vehicle through a field to help determine the distances competitors flung their pumpkins. The ATV he was riding flipped in 2011, and he suffered serious injuries. He filed a lawsuit seeking at least $4.5 million in damages.

The Wilmington News Journal reported that owner of the farm argued there was nothing inherently dangerous about the path Fair was riding on and that “its existence was obvious and known to all.” It estimates that “Fair, a repeat volunteer, drove an ATV over it 150 times between 2007 and 2011 without a problem, as did plenty of other people.”

The lawsuit was eventually dismissed, but the parties settled out of court. Of course, that started a domino effect, and now, affordable insurance for the event is impossible to find, and the farmer who hosted it won’t let it return to his property.

That’s a shame. In a news report that aired on ABC-affiliate, WMDT-TV, Delaware Senator Brian Pettyjohn noted that in addition to all of the economic benefits enjoyed by the local businesses who served the thousands of people who came to the event, Punkin Chunkin raised $50,000 for student scholarships and $100,000 for charities over the years.

To help save the event, Senator Pettyjohn introduced legislation to cap pain-and-suffering awards in lawsuits against non-profit charities sponsoring annual events, but as WMDT reported in a follow-up story, it was blocked in committee, and “supporters of the bill said lobbying by trial lawyers defeated the measure.”

So, is the Punkin Chunkin competition history? An article on the Delaware Surf Fishing website reports that “due to this lack of protection, Punkin Chunkin organizers are starting to look out of state” for a new location.

To stop that from happening, a grassroots movement called #savethechunk has now sprouted up on Facebook and Twitter, and leaders of the effort still hope to convince Delaware legislators to enact legislation that will allow the event to remain in that state.

This situation reminds me of a time when a group of citizens in Connecticut rallied to keep public bike trails open there after a lawsuit by an injured biker forced the trails to be closed. I discussed this on my blog at the time, and a groundswell of public support led by hardworking volunteers there eventually led to legislation being enacted that allowed the trails to re-open. If it could be done in Connecticut, it can be done in Delaware.

Hat tip to Walter Olson for alerting us to this story on

Patent Trolls Abusing The Courts Pose Major Economic Threat

troll3How well do you remember the fairy tales you were taught as a child? More importantly, do you recall any of them having a hidden lesson about tort reform?

If you heard this week’s edition of “Let’s Be Fair!,” you know that the story of Billy Goats Gruff does indeed have a hidden lesson that can be used to understand a diabolical new kind of character known as a patent troll.

In the story about the billy goats, a troll who hides under a bridge threatens to gobble up anyone who tries to cross over it. In modern-day America, so-called patent trolls are abusing the legal system to gobble up the hard-earned money of entrepreneurs who, the troll argues, are a infringing on their patent. This is no fairy tale, though, and victims of the trolls include both large and small businesses, so almost no one is safe from the lawsuits.

What exactly is a patent troll? An excellent article in Forbes describes them this way:

“a ‘patent troll’ is, by definition, any person or entity that owns a patent but does not produce the patented product or practice the patented method. Instead, the so-called ‘troll’ exacts a toll, in the form of a license fee, from other persons or entities the “troll” believes infringes (or do infringe) the patent.”

So, what’s the problem? If someone owns the rights to a product or process, why shouldn’t they be entitled to payment? It’s the American way, right?

Well, if someone has a legitimate patent and another party is genuinely infringing on it, then yes, the patent owner would have the right to demand payment. However, the problem today is that many of the lawsuits being filed by patent trolls allege infringements of their patent that are so vague that they amount to nothing more than fishing expeditions, and their victims have to either settle out of court to cut their losses or spend tens of thousands of dollars fighting them.

These trolls are exploiting current law which does not require that a patent holder explain how a patent is infringed, or even identify the product involved. This makes it nearly impossible for someone who has been sued to evaluate the case and decide how to proceed.

Victims of patent trolls have included everyone from a famous comedian and a popular website to small home builders and large consumer product makers. Click here to see a short video of a home builder in Oregon explaining how he was targeted by patent troll and how homebuyers across the nation would have to pay more for their slice of the American dream if the lawsuit were successful.

A few years ago, I appeared on John Stossel’s program on FOX with the creator of a popular website who was also sued by a patent troll. His name is Drew Curtis, and despite huge odds, he fought back. He eventually won, and later, he gave an excellent TED talk on his experience that I highly recommend. You can see it here.

Certainly, patents are important to our economy for many reasons, not the least of which is that they give incentives to inventors to be creative. However, in the hands of unethical trolls, they’ve become nothing more than assault weapons for hold-up artists.

A diverse and well-organized coalition of job providers called United for Patent Reform has mounted a national campaign to end this form of legalized extortion. Find out about their effort here.

The Ongoing Legal Battle Over The World’s Most Famous Song

birthdaycelebrationHave you ever wondered why the waiters and waitresses who sing a song when they serve a birthday desert in a restaurant almost never sing the famous “Happy Birthday To You” song that you sing at home? It’s usually a song and tune that they or someone else working for the restaurant made up. They use a different version because if they used the famous song, their restaurant could be sued. However, a recent court ruling may change that.

A little background. Since 1988 when Warner Music bought the copyright to the “Happy Birthday To You” song, restaurants, television production companies and others wanting to use the song for commercial purposes have had to pay a large licensing fee to Warner or risk getting served with a lawsuit. According to some reports, Warner collected as much as $2 million per year in royalties they earned from licensing the song to others.

All that is going to change now because a federal judge ruled that Warner doesn’t hold a valid copyright to the song. To make a long story short, U.S. District Judge George H. King ruled that the copyright Warner purchased in 1988 doesn’t apply to the version of the song we’re all familiar with. For a good summary of the history of the litigation that cost Warner the rights to the song, check out this Washington Post article.

Just because Warner won’t be making money off the song doesn’t mean someone else won’t, though. The song was written by sisters Patty and Mildred Hill in the late 1800s and was eventually published in several song books. The copyright Warner purchased came from the publisher of just one of those song books, so one of the other publishers or someone else could step forward to claim ownership of the song now. Or, a court could rule that the tune the Hill sisters used was already public domain, so everyone would then be able to use it.

While the battle over the song continues, you can see an entertaining montage of how TV writers have changed the song over the years to avoid being sued by clicking here.

Harris Poll Ranks States On Fairness Of Their Legal Climates

RankingStatesYou already know that the United States is the most lawsuit-happy country on earth. However, do you know how much of a difference there is in the legal climates of the 50 states? And do you know how your state ranks? A new Harris Poll provides an answer to these important questions.

In its 2015 Lawsuit Climate Survey, the experts at Harris Interactive polled corporate attorneys across America to find out how fair and reasonable the states’ tort liability systems are perceived to be by US businesses. The survey was commissioned by the US Chamber Institute for Legal Reform.

According to Lisa A. Rickard, president of ILR, the reason for conducting the survey is straightforward:

“More business leaders than ever have identified a state’s lawsuit climate as a significant factor in determining their growth and expansion plans.”

In fact, Harris Interactive discovered that 75% of the survey’s respondents reported that a state’s litigation environment is likely to impact important business decisions. With states competing fiercely among themselves for new jobs, this survey provides vital information that can help states improve their ability to encourage economic growth.

Scores for all 50 states can be found by clicking on the link above for the survey, but here’s a sneak peak. The states with the five best scores are (with #1 being the best):

  1. Delaware
  2. Vermont
  3. Nebraska
  4. Iowa
  5. New Hampshire

The states with the five worst rankings are:

  1. Alabama
  2. California
  3. Illinois
  4. Louisiana
  5. West Virginia

In addition to ranking the states, the Institute for Legal Reform provides estimates of how much money each state could save and how many jobs could be created by enacting tort reform. For example, it estimates that New York could experience an increase in employment of 0.84% – 2.27%. That means improvements to the legal environment could create between 74,000 and 202,000 jobs in New York alone. For more detail on these numbers for all fifty states, click here.

The bottom line is that the lawsuit climate of a state is more important than ever to businesses that are deciding where to grow. States need to take notice that a good lawsuit climate is vital to their continued job growth.

While Space Exploration Fuels Innovation, Legal Fears Often Keep Innovation Grounded

SpaceWith Pluto-mania sweeping the nation, we used our “Let’s Be Fair” radio commentary this week to recognize some of the ways that consumers have benefited from space exploration, and how we might still benefit in the future if liability concerns don’t stall innovation.

Modern conveniences like cell phone cameras, scratch-resistant lenses for sunglasses, water purification systems, and CAT scans were all originally developed by NASA. Yes, if you have ever been treated with a CAT scanner or know of a loved one who has, you have the space program to thank for this. This cancer-detecting tech was first used to find imperfections in space components.

Because of the brilliant minds working at NASA, it often seems like the only limit on what we can create is our own imagination. Unfortunately, one of the barriers to innovation is entirely man-made and unique to America: legal fear.

For example, at this time, a device invented by a former NASA engineer that could save lives by making it impossible to text, talk or email on a cell phone while driving is being kept off the market — in large part – because of fears about lawsuits. In a previous blog post, I explained how legal fear was stalling the rollout of this amazing technology even though the entrepreneur who developed it got two heavyweights in the insurance and cell phone industries to support his efforts.

The number of new consumer products that have been kept out of the market certainly includes many more than those developed by NASA engineers, however. John Stossel identified a number of these in an excellent article a few years ago. They include things like hypodermic needles that cause less pain to patients, a substitute for asbestos, and a medicine that relieves morning sickness for pregnant women suffering from nausea.

The morning sickness medicine, Bendectin, was finally returned to the U.S. market in 2013, 30 years after the manufacturer pulled it off shelves here in response to lawsuits that later turned out to be completely unfounded. All during those three decades, women in Canada and Europe benefited from the relief provided by Bendectin while women in the U.S. suffered unnecessarily from their nausea.

Over the years, I have talked with many entrepreneurs who either decided not to bring products to market, or who have chosen not to provide consumer-friendly modifications to their products, because of concerns over being sued. These legal concerns do not tie the hands of innovators in any other country in the world, and the real losers are American consumers.

The negative effect that lawsuit abuse has on product development and innovation is as much of a concern to consumers at the extra money we all pay for products that do make it to market.

Photo courtesy of and xedos4.