Former Clinton White House lawyer Lanny Davis weighs in on the issue of medical malpractice "reform" in a WSJ interview with Ashby Jones where he spends time whining about punitive damages.

And it's pretty clear to Andrew Barovick, that Lanny Davis is utterly clueless. And the PopTort noticed too, pointing out that the entire state system only had six such cases in an entire year. For medical malpractice, punitive damages is a non-issue;

Hey, Brian Wilson has a modest proposal, why not just get rid of all the personal injury lawsuits?

And if you're a personal injury lawyer, how do you feel about being one?

The NYT ran with an editorial on a case against McDonald's regarding fried chicken and a hot-pocket of undrained oil that burned the lips of a customer. The WSJ Law Blog wants to know if this is the next tort "reform" talking point;

Of course, some lawyers just seem hell-bent on embarrassing themselves;

And while on the subject of medical malpractice, here's the story of a rogue butt-enhancer. No, I didn't make that up;

Other interesting stuff:

FindLaw, that paragon of brilliant blogging that seeks to further embarrass the entire legal profession, is now looking for new writers for it's dreck-blogs. Legal experience is not necessary. Really, you can't make this stuff up;

And more in the crap attorney search department, Bob Ambogi rips BestAttorneysOnline.com to shreds then comes back to pulverize them some more, and then shovels dirt on this clueless company's grave. Woe unto the lawyer that outsources his or her marketing (and ethics) to one of these attorney search outfits;

Class action lawsuits against Toyota could cost the company $3 billion;

When 911 calls get released to the public, is there a violation of privacy rights involved?

Congressional candidate Joe Walsh backs down in dispute with rocker Joe Walsh over use of one of his (rocker Joe's) songs;

New York City gets a new official condom, which has nothing whatsoever to do with the law, but it's my blog and I get to link to stuff like that if I want;

My brother Dan is not the only one to get personal letters from SCOTUS; Justice Thomas opines on McDonald's;

I've been meaning to get around to this for awhile: In case you hadn't noticed, Colin Samuels of Infamy or Praise fame has been doing outstanding round-ups of the legal blogosphere in his "Round Tuit" postings. Unlike my brief commentary by providing links -- where I try to send you away from here -- he does in depth analysis of life in the legal blogosphere. If he isn't part of your RSS feed, then you are missing something good;

And Niki Black has Blawg Review #254 up at Sui Generis, focusing on International Women's Day and National Women's Month.

Labels: Random Notes

The tort "reformers" won't be happy with this; yet more evidence that medical malpractice lawsuits are not the problem with healthcare costs.

OK, here you go, short and sweet, the lede:

Fewer medical malpractice payments were made on behalf of doctors in 2009 than any year on record, according to the National Practitioner Data Bank.

This finding contradicts claims that medical malpractice litigation is to blame for rising healthcare costs and that changing the liability system to the detriment of patients will not curb costs.

The value of malpractice payments was also the lowest since 1999. Adjusted for inflation, payments were at their lowest since 1992, a Public Citizen analysis of the NPDB shows.

Also part of the article, malpractice payments on behalf of doctors equals just 0.14 of 1% of overall US healthcare spending.

And for that, there are people who want to close the courthouse doors.

You can read the rest here: Analysis: Medical malpractice payments continue to fall.
--------------------
And prior commentary from me here:

• The False Premises of Medical Malpractice "Reform" (Response to Richard Epstein in WSJ) (6/30/09)

  There's an old saying, "garbage in, garbage out." If you use a false premise to substantiate an argument then the result will be worthless. And that is exactly what University of Chicago law professor Richard A. Epstein does today in the Wall Street Journal (via PofL)...

  
  
• Do Texas Med-Mal Damage Caps Work? (What Do You Mean By "Work?") (4/14/09)

  But what, exactly does it mean for a statute to "work" when it reduces the ability of the most badly injured individuals to recover for their loss?
  
  Does offering government protectionism for tortfeasors mean it works?
  
  Does stopping those who've been victimized from recovering from their loss mean it works?
  
  Does destroying the concept of personal responsibility for one's actions mean it works?

• My Tort "Reform" Op-Ed in Today's Journal News (7/29/08)

  Re "Tort reform needed in New York state," a July 23 letter by Cortes E. DeRussy of Bronxville that blamed the "trial-bar friendly state Legislature" for refusing to enact malpractice reforms needed to keep doctors from fleeing the state:
  
  The DeRussy letter repeated a common myth in an argument for tort "reform," claiming that one of the primary reasons for increased medical malpractice insurance was "unusually high judgments." DeRussy couldn't be more wrong...

  
  
• The Medical Malpractice "Crisis" Hoax -- From Public Citizen (1/24/07)

  Since others had already pointed out the Public Citizen report exposing the hoax of a medical malpractice "crisis" I wasn't going to bother. But there was Pres. Bush last night at his State of the Union speech once again leading people astray, when he said:
  
  "And to protect good doctors from junk lawsuits, by passing medical liability reform."
  
  Good doctors, however, don't seem to be the problem. Since 1991, according to the report, 5.9 percent of U.S. doctors were responsible for 57.8 percent of the number of medical malpractice payments. That is an extraordinary statistic.

  
  
• Debunking Yet Another Tort "Reform" Column, This Time in Forbes (7/15/09)

  I feel like a broken record sometimes, rebutting the same disingenuous tort "reform" nonsense over and over. The latest comes from Forbes (via PofL), in a piece written by Manhattan Institute fellow John Avlon, regarding the amount that New York City pays out in settlements and verdicts....

• Why New York Medical Malpractice Insurance Jumped 14% (7/31/07)

  You may have seen the screaming New York headlines: Doctors hit with 14% increase in medical malpractice rates! Doctors in high risk specialties paying 6-figure insurance premiums! Insurance reserves so low carriers may become insolvent! Blame the lawyers! came the cry from the doctor's, for surely it must be due to medical malpractice cases. A little protectionism called tort "reform" would go a long way to curing the problem. Right?
  
  Ahh, but truth is another matter...

hat tip: JusticeDotOrg

Labels: tort reform

It's a contest! For the worst judicial writing in America. And I have here the first entrant.

Now I confess that I publish this with great trepidation, since I appear before this appellate court from time to time. And what I have to say isn't kind.

But at the risk of pissing off some judges before whom I may appear, I have to ask, would you want our briefs to contain sentences with 300+ words? And would you want me to make you strain to figure out the points I'm making?

Exhibit A: A decision from the Second Department in December in Dockery v Sprecher, regarding a $109M medical malpractice verdict that was reduced to $9 million for a brain damaged man. The first sentence of the decision, regarding the procedural history, weighs in at a staggering 303 words. Without any semicolons. Is there a secret law that says writing a procedural history must induce dread on the part of the reader?

But wait! There's more! Not to be outdone, the second sentence of the same decision laughs in the face of the first, stomping it into the ground with a jaw-dropping 343 words. But at least that has two semicolons. (Both re-printed below.)

Really, is such gobstopping exposition necessary? Have simple, declarative sentences been outlawed? Is clarity a crime?

I challenge anyone to find a sentence in another judicial opinion of such length.

The format of this decision is unfortunate given its importance. The decision speaks to the issue of how outlier verdicts -- those that "deviate materially from what would be reasonable compensation," in the parlance of New York law -- get reduced by courts on review by ordering a new trial unless a party stipulates to a lower amount. I had written of the subject as a newbie blogger (How New York Caps Personal Injury Damages -- 1/23/07) due to the popular misperception among the public that the verdicts they see in newspapers are the amounts that actually get collected.

But those verdicts in the papers are there for a reason; either because a celebrity was involved or the verdict was an outlier.

A decision on a blockbuster verdict that helps to define the limits of permissible compensation, and demonstrates how the courts manage those outlier verdicts, is one that would assist the public in understanding how our judicial system works. And it would assist trial judges and lawyers in understanding how the appellate court might see things, and therefore it would be important guidance.

But sentences of 300+ words don't do that. Instead of offering clear explanation, they offer the reader the opportunity to engage in code breaking, with a WW II Engima machine as a required tool.

And that is not the only place this decision lacks clarity. Because the decision also fails to explain the injuries. Imagine that, a $109M verdict reduced to $9M, and no discussion of the damages? John Hochfelder has written quite a bit on that recurring issue, including this:

So I don't at all question the integrity, acumen, or commitment of our appellate court judges. What I do question, though, is why [the Appellate Division] can't make it part of their procedure in personal injury lawsuit appeals to explain their reasons for an increase or decrease of a jury award and to cite prior cases with meaningful and helpful explanations of why they are relevant or controlling. In that way, practicing lawyers will be better able to evaluate and settle cases with the result that fewer cases will clog our court system and more realistic positions will be taken by plaintiff and defense lawyers on the cases that remain.

It takes much hard work to actually figure out what the Appellate Division did in Dockery v. Sprecher, because not only did it reduce the verdict but it also lowered the apportionment of fault for the defendants from 45% to 10%. And it failed to let the reader know what the actual effect of that apportionment change was.

And since this report indicated that there was also a $4.4M pres-suit settlement with a hospital, that means that there would be an offset for the settlement amount under New York's General Obligations Law 15-108, though you wouldn't know if from reading the opinion.

So we have a major decision on the issue of damages, with a new trial ordered unless the plaintiff stipulates to a reduction, a change in the apportionment, a settlement requiring an off-set, but with tortured language in the decision, missing information, and open questions for the reader. And that's a shame.

[Update: Hochfelder unravels the guts of the injury claims in a new post, and comes up with this result:

$4,400,000 (the pre-trial settlement the hospital and one doctor) plus
$957,000 (The 10% share of the remaining defendant, resulting from the new $9,570,000 limit placed by the court)]

So let me politely suggest that our appellate judiciary do a few things:

1. Read the opinions of Justices Scalia, Posner, or Kozinski. Just for style. Ask yourselves this question: Would any of those jurists compose anything resembling the mind-numbing legalese I've re-printed below?

2. Contact legal writing guru Bryan Garner, who has given a gazillion seminars on writing to lawyers and judges;

3. Take the writing manual that you are working from and dump it. Whatever comes out the other end of the recycling process will be of better use.

OK, here they are, the first two sentences, in all their gory glory, followed by my closing thoughts:

In an action, inter alia, to recover damages for medical malpractice, etc., the plaintiffs appeal, as limited by their brief, from so much of a judgment of the Supreme Court, Queens County (Hart, J.), entered July 10, 2008, as, upon the granting of that branch of the motion of the defendants Stanley Sprecher, Peninsula Radiology Associates, P.C., and Peninsula Hospital Center pursuant to CPLR 4401, made at the close of the plaintiffs' case, which was for judgment as a matter of law dismissing the complaint insofar as asserted against them, upon a jury verdict finding the defendants M. Chris Overby, and Levine Overby Hollis, M.D.s, P.C., 45% at fault, and nonparties Philip Howard Gutin, and Memorial Sloan Kettering Cancer Center 55% at fault for the injuries sustained by the plaintiff Thomas Dockery, and that the plaintiff Thomas Dockery sustained damages in the principal sums of $10,000,000 for past pain and suffering, $27,750,000 for future pain and suffering, $370,000 for past loss of earnings, $80,000 for future loss of earnings over a period of 28 years, and $21,636 for loss of Social Security income, and that the plaintiff Karen Dockery sustained damages in the principal sum of $18,000,000 for past loss of services, and $48,700,000 for future loss of services, and upon so much of an order of the same court entered December 3, 2007, as granted, after the jury verdict, that branch of the motion of the defendants M. Chris Overby and Levine Overby Hollis, M.D.s, P.C., pursuant to CPLR 4401, made at the close of the plaintiffs' case, which was for judgment as a matter of law dismissing the complaint insofar as asserted against them, dismissed the complaint insofar as asserted against the defendants Stanley Sprecher, Peninsula Radiology Associates, P.C., Peninsula Hospital Center, M. Chris Overby, and Levine Overby Hollis, M.D.s, P.C.

Ordered that the judgment is modified, on the law, on the facts, and in the exercise of discretion, by deleting the provision thereof dismissing the complaint insofar as asserted against the defendants M. Chris Overby and Levine Overby Hollis, M.D.s, P.C.; as so modified, the judgment is affirmed insofar as appealed from, without costs or disbursements, the motion of the defendants M. Chris Overby and Levine Overby Hollis, M.D.s, P.C., pursuant to CPLR 4401, made at the close of the plaintiffs' case, for judgment as a matter of law dismissing the complaint insofar as asserted against them is denied, the order entered December 3, 2007, is modified accordingly, and the matter is remitted to the Supreme Court, Queens County, for a new trial as to the defendants M. Chris Overby and Levine Overby Hollis, M.D.s, P.C., on the issues of apportionment of fault and damages for past and future pain and suffering and past and future loss of services unless, within 30 days after service upon the plaintiffs of a copy of this decision and order with notice of entry, the plaintiffs shall file in the office of the Clerk of the Supreme Court, Queens County, a written stipulation consenting to the apportionment of 10% of the fault to the defendants M. Chris Overby and Levine Overby Hollis, M.D.s, P.C., and 90% of the fault to nonparties Philip Howard Gutin and Memorial Sloan Kettering Cancer Center, and to reduce the damages for past pain and suffering from the principal sum of $10,000,000 to the principal sum of $1,200,000, the damages for future pain and suffering from the principal sum of $27,750,000 to the principal sum of $6,750,000, the damages for past loss of services from the principal sum of $18,000,000 to the principal sum of $350,000, and the damages for future loss of services from $48,700,000 to the principal sum of $1,000,000, and to the entry of an amended judgment accordingly; in the event that the plaintiffs so stipulate, then the judgment, as so reduced and amended, is affirmed, without costs or disbursements.

Two final thoughts. One reason that this decision might be written so poorly is that the court doesn't want it to be cited and followed. But, like Hochfelder, I believe that such obfuscation leads to more litigation as it leaves the current state of the law a mystery. If the bar understands that, for example, a verdict for a broken arm will be tossed out if it exceeds (or is lower than) x, then the parties can turn to the liability aspects and make informed judgments with more confidence of the best case and worst case scenarios. And the trial level courts will have guidance on permissible parameters when deciding post-trial motions. And that would mean fewer trials, fewer appeals, and reduced judicial case load. It would, dare I say, promote efficiency.

And last: When I appear before you next, please, please, PLEASE, don't hold my criticisms against my client. I write because I think the courts can do better, and that we are all better served when decisions are clear.

Labels: Judiciary, Legal Writing

Today's issue starts out straightforward with a malpractice case. But pay attention, because the real application of this decision is in New York's No-Fault law and litigation over "serious injuries" in car accidents.

Plaintiff brought a malpractice case against chiropractors alleging that they caused her to suffer severe spinal cord injury requiring surgical intervention. Defendants move to dismiss. In response, plaintiff puts in an affidavit from a chiropractor. Since it's an affidavit, it's sworn. But the chiropractor relies on unsworn MRI reports. Is that OK?

Yes, says the Appellate Division (Third Department) in a decision released yesterday, Caulkins v Vicinanzo. While it is true that "uncertified medical records and unsworn letters or reports are of no probative value" in opposing a summary judgment motion, in this case the affidavit is a sworn document. And the appellate court, in holding that the affidavit could rely on unsworn documents, plucked a footnote from the Court of Appeals decision in Pommells v. Perez, which said:

"Though the MRI reports were unsworn, the various medical opinions relying on those MRI reports are sworn and thus competent evidence."

Now in theory, the case favors neither plaintiffs or defendants, since either can make a motion for summary judgment.

But that's only theory. It's real application comes not in the world of medical malpractice, where summary judgment motions are relatively rare, but in the realm of car accidents and defense allegations that the "serious injury" threshold under New York's miserable No-Fault law was not met.

The reality is that some offices are fighting these types of summary judgment motions every day. (And the courts hate them.) And many of those cases have small insurance policies (25K) that make it essential for personal injury lawyers to litigate with great efficiency. Defense lawyers, of course, being funded by the multi-billion dollar insurance companies, don't have that problem. If the plaintiffs need additional affidavits from radiological experts to corroborate what the initial radiologist said, it is an additional expense.

So you can bet that this case will be cited in the months and years to come for those that fight those battles. Ultimately, it's a win for car wreck victims as it helps to streamline an already miserable part of New York's auto accident practice.

Efficiency is a good thing when you work on contingency. And it's good for the victims too, who often have trouble finding counsel for cases that have limited upside due to small insurance policies.

Labels: Evidence, No-Fault

Lots of stuff I wanted to write about, if I only had the time...


Slackoisie has disappeared. Now what are we going to call "a generation of entitled narcissists?" And why doesn't my spellchecker recognize the word?

The idea of "health courts" pops up in the context of the health care bill, and the folks at The Pop Tort don't have anything good to say about them. And there's a good reason. While the details of such experimental courts haven't formed, it's worth noting that New York had a form of such courts (a screening panel) for several years that was a miserable failure;

And while you're perusing The Pop Tort site, you might as well watch Senator Richard Durbin knock the ball out of the park on the issue of medical malpractice "reform;"

Why is Allstate sometimes referred to as AllSnake? Ask Trey Mills, and he'll tell you that the good hands people aren't so good. "I have decided to fight Allstate regardless of the time, resources, and value on the claim;"

I've written before about the Graves Amendment that confers immunity to the owners of cars and trucks that are rented or leased. Roy Mura now has an update with some cases where the lessors may still be liable;

What are the damages if you get a bogus take down message for your blog? Let's just say that legal fees are a big issue; And on the subject of blogs, who owns your content?

Trial lawyers are always cross-examining people who are smarter in certain fields. Orin Kerr shows one way not to do it;

More trial lawyering: Reptile advocacy gets admitted into court. Both Mark Bennett and Max Kennerly on the issue;

Carolyn Elefant, Queen of the legal start-up field, does a roundup of the Solo Blogosphere;

Quotable: "The Republican party is a wholly owned subsidiary of an insurance industry." Yowza.

Batman takes on Superman. Guess who wins?

When Dick Cheney was hospitalized for his heart attack, President Obama called to wish him well. Here is the transcript. Would I steer you wrong?

And Blawg Review # 253 comes up out of South Florida Lawyers while some folks dig out from up to 7 feet of snow.

Labels: Linkworthy

The idea that a witness testifying at a deposition would not be entitled to have an attorney is somewhat startling. But that is, in fact, what the Appellate Division, Fourth Department held earlier this month in Thompson v. Mather, when they firmly established that "counsel for a nonparty witness does not have a right to object during or otherwise to participate in a
pre-trial deposition."

The issue arose during a medical malpractice case involving obstetrical and gynecological treatment and the prescription of oral contraceptives. Plaintiff claimed they were contraindicated. The patient suffered an acute myocardial infarction.

Plaintiff wanted to video the testimony of the treating cardiologists, who were not defendants. The doctors showed up with lawyers provided by their own medical malpractice insurers, who then proceeded to obstruct the questioning. The deposition was abandoned and motion practice ensued.

The lower court, in one of the most bizarre rulings I've ever heard of, suggested that these doctors who had never been sued should be released from liability before unrestricted testimony was to take place! The court suggested that plaintiff and defendants are to

"consider providing general releases to the [physicians] . . . with respect to their initial treatment of [plaintiff]" and that, if such releases are provided, plaintiff will "be entitled to have a videotaped deposition of [the physicians] during which deposition the attorneys for the [physicians] shall not be permitted to speak. . . ."

Holy mackerel. In reversing the lower court, the Appellate Division called that "repugnant."

But first they addressed the issue of having counsel at the deposition, and came down firmly against it. Why? Because CPLR 3113 (c) provides that the examination and cross-examination of deposition witnesses "shall proceed as permitted in the trial of actions in open court." The parties can object later, but the witness isn't a party. If this was a trial, the witness would not have a lawyer in the well of the courtroom to object.

And then they kicked the lower court judge but good with respect to that nonsense about providing a release to a witness before testimony could ensue:

...we note that the practice of conditioning the videotaping of depositions of witnesses to be presented at trial upon the provision of general releases is repugnant to the fundamental nonparty obligation of every citizen to participate in our civil trial courts and to provide truthful trial testimony when called to the witness stand. Contrary to nonparty respondents' contention, the fact that the statute of limitations has not expired with respect to a nonparty treating physician witness for the care that he or she provided to a plaintiff provides no basis for such a condition.

The unanswered question that I have, given that the lawyers for the cardiologists were provided by their medical malpractice insurance carrier. Is it the same carrier as the defendants?

And that question was answered by one of the attorneys involved: No. But certainly something to look for if the situation should arise elsewhere, as may well happen with this ruling if such non-party depositions become more common.

Labels: Depositions, Medical Malpractice

Clock is tickin', so much I wanted to write about but didn't have the time for...

Here's some reasons not to make any representation as to what a case is worth when you take it in: Settle it Now, Negotiation Blog;

Sometimes the mistake gets made, but the damages aren't there: New mom given wrong baby to nurse, wants settlement from hospital;

Baseball mascot flings hot dog. Said doggie hits fan in the eye. Did the fan assume the risk of having a mascot fling a hot dog at him during a game? And would John Hochfelder have taken the case?

Let me guess, the new client is overseas and they want you to collect an easy $400,000 or so for them, right? And you get a nice big piece? Uh huh. Law Firms Swindled Out of $500K in E-Mail Scam and a personal experience with the scammer;

How's this for a quote regarding the Toyota scandal: "Yet for all the demonizing of trial lawyers, the reality is that product-liability litigation has become an ever more important means of keeping consumers safe." It appeared on the WSJ OP-Ed page;

A post at Concurring Opinions on medical liability uses this graphic at left. But the image looks Photoshopped to me as the instrument seems too small to actually hold. Want to see what a retained surgical instrument really looks like?

Bob Dylan is dead. You didn't know? Ann Althouse finds out due to a computer program that ambulance chases. When I wrote Attorney Solicitation 2.0 back in 2007, I never thought of that one;

TortsProf is still chugging along with the Personal Injury Law round-ups;

Blawg Review #252 is frightening;

My three posts on Justice Scalia's letter to my brother regarding secession have had 40,000 page views as it roared around the web with thousands of forum comments, tweets and blog postings, finding a home at NYT, WSJ, WaPo, NBC, CBS and The Hollywood Reporter, among others. And if Eugene Volokh hadn't put up this post, the letter would still be in a drawer as a fun, family curiosity. But no one has tackled my suggestion that Scalia flat out blew it on whether the court could ever hear such a case.

I'm going to bed, hope there aren't too many typos and blown links.

Labels: Random Notes

OK, that little post about a letter my brother got from Justice Antonin Scalia about states seceding from the nation seems to have set off quite a bit of activity on political blogs.

(Updated 2/24: It has now hit Hollywood and mainstream press, an item in The Hollywood Reporter being picked up by Reuters and on to Yahoo! News, and now the New York Times)

While I know that the vast majority of you folks will be here and gone in a heartbeat -- and perhaps quicker -- if you have a hankering to see what kind of stuff haunts my humble corner of the interwebs, you can look at these two "Best Of" posts to get a sampling:

Greatest hits 2009

Greatest hits 2006-2008

My guess is that, given the nature of the newcomers, last year's Sonia Sotomayor posts, one of which ended out in a Washington Times editorial, will be of some interest. Though my appearance in an editorial for the Economic Times of India (regarding George Bush's dog, go figure), might be a close second.

And Supreme Court aficionados may be interested in this news that I broke asome time back, which also involved Justice Scalia: Supreme Court Grants Cert in "Fantasy Baseball" Case; Three Justices Recuse Themselves Due To Participation in High Court League


And feel free to add me to your RSS feed, or follow on Twitter (@Turkewitz). The price is double what you're paying now, but I think I'm worth it.

(originally posted 2/16/10)

In responding to my brother Dan's letter regarding the legal plausibility of Maine seceding from the union to join Canada, Justice Antonin Scalia raised two points. First, he said that the Civil War settled the issue of the constitutional basis for secession. Second, he indicated that he didn't see how such an issue could even reach this nation's high court.

I'm here today to take issue with both points before turning this blog (hopefully) back toward the personal injury field that is my bailiwick. With respect to the first assertion, Scalia's exact words were:

If there was any constitutional issue resolved by the Civil War, it is that there is no right to secede.

There are no shortage of people willing to criticize such a position, because he simply states that might makes right. But the physically stronger side winning is not legal analysis, it is merely guns and tactics and doesn't tell you squat about any legal basis. Many found that odd from a guy like Scalia who thrives on analysis.

It is this first part that garnered almost all of the media attention that I noted yesterday when I published the rejection letters of other justices, and which Chris Matthews discussed on Hardball (brief video segment below).


But this post is really dedicated to Justice Scalia's second assertion regarding who the actual parties to such a suit would be. And despite many dozens of blog postings regarding The Letter, I haven't seen any discussion of this second point. Justice Scalia wrote:

Secondly, I find it difficult to envision who the parties to this lawsuit might be. Is the State suing the United States for a declaratory judgment? But the United States cannot be sued without its consent, and it has not consented to this sort of suit.

Well, let me take a crack at envisioning it: The United States is not party to the action for secession. Rather it is State v. State. Because if one state quits the union the others are saddled with the quitter's share of the national debt. The other states, being unhappy about Maine (or Texas, Vermont, South Carolina, etc.) shirking its obligations, sue the departing state for its share.

And they bring that suit in the Supreme Court since the court has original jurisdiction to hear matters "between two or more states." There isn't any need for years worth of lower court legal wrangling, which is a nice bonus when writing a comedy for the big screen.

In fact, it's this "It's the money, stupid" plot line that my brother was using when he wrote to the justices, presaging the conservative Tea Party movement by three years. The set-up in the story, in a nutshell, has three University of Maine stoners in a midnight stupor in desperate need of a political science paper for the next day. They write up a manifesto on the vast sums of money that Mainers owe due to the rapidly escalating irresponsibility in Washington, and then urge Maine to join Canada. Manifesto, of course, is the charitable word for rant. The rant hits the college rag. The local paper picks it up on a slow news day, it strikes a chord with many and people press their state government to address the issue, which ultimately goes to a state-wide referendum as the political farce takes off. Our three heroes use their status as potential founding fathers to further the never-ending pursuit of weed and women.

A Supreme Court battle forms part of the script, albeit not a giant one because courts aren't as funny as standard-issue politicians or stoners, with the other states insisting that if Maine leaves they take their part of the debt with them. It's all about the money.

But wait!, I hear you say regarding the legalities. If a state has left the union then the suit is no longer "between two or more states." An exiting state would most assuredly claim that the high court doesn't have jurisdiction to hear the matter. Lack of jurisdiction is a common defense in suits, and a court must do an analysis to determine its merit when raised.

And therein lies the issue of how secession can land before the Supremes; the court must resolve a jurisdictional issue. In order for the court to resolve the merits of the money suit they must first decide whether or not the exiting state has legally left. If the state has legally left, the court can't hear the case because it is not between "two or more states."

This analysis seems backwards from the way jurisdiction is usually discussed. Merits generally come after jurisdiction has been established. But in this case the merits discussion has to do with money owed. And the issue of whether the court can even hear the case as a dispute between states must first be resolved, and that means looking at the issue of whether secession was legal.

How the case would be resolved in the real world is, of course, beside the point. This is, after all, a movie and the level of detail above wouldn't be in it.

But Justice Scalia had written that he can't think of how the matter of secession would get to the court. Well judge, I see how the issue can get to you. At least in theory. And it's a pure jurisdictional question in a battle between states over money.

And for those wondering how, exactly, the Supreme Court could enforce a judgment against a seceding state in the event the court dumped the unhappy secessionists? Well, that has always been a problem since the judiciary doesn't have a military wing to it. In 1957, the Army was called in on Executive Order to integrate Central High School in Little Rock. It remains a problem today out in Maricopa County, Arizona, where a court officer was caught on camera reading the files of a defense lawyer while she was addressing the court. The guy was held in contempt, and ordered to apologize on the courthouse steps. This was followed by a law enforcement sick-out. Enforcement can be tricky.

But the difficulty with enforcement of a court order is an issue separate from having the matter heard in the first place. Under this scenario, if a military solution were to be used to stop secession, it would come after a legal analysis of the merits.

Dan's script, being a political farce, obviously doesn't end with a military solution. I can't give away more since it is just now being entered in competitions and my brother is still scrapping for an agent to represent him. (Anyone out there? Is this thing on?) But of his five finished screenplays, this is the best. And all the others have advanced in competitions.

So in the end, Justice Scalia, I think it can be done. Granted, I'm pretty far afield of personal injury law -- you really can't get any further afield than this -- but then, so is almost everyone else that opines on the subject with the exception of a few scholars.

If I've completely blown the analysis -- and I admit that despite its simplicity that is certainly possible -- I'm sure people will let me know.

Graphic by Dan Turkewitz

Labels: Antonin Scalia, Dan Turkewitz, Secession, U.S. Supreme Court

Geez, you go to Florida for a few days vacation and that is the time for a post to go viral? It seems the interest in Justice Antonin Scalia's response to my brother Dan's request for assistance on his screenplay, dealing with Maine seceding from the U.S., drew interest not only from legal blogs but from numerous political ones as well. Maybe I should have published all the responses?

I watched (from my iPhone) with fascination as the story on my little post exploded across big time blogs/media (Washington Post, NBC, CBS, WSJ, Volokh, ATL, Politico, and many more). It's tough to blog with an iPhone though, and Mrs. NYPILB would not have been pleased if I was tethered to a laptop instead of frolicking on Floridian beaches, pools and golf courses. (That's Dan with my kids above, in his alter ego role as Super Uncle.)

Thus far, over 23,000 page views for that one post.

A little back story on why he wrote to the members of the court, over my objection, might be helpful. When he wrote his award-winning sci-fi thriller of astronauts stranded in space and fighting with each other for survival, he sought expertise on the plausibility of his plot. So he wrote to astronauts. And he got responses.

If astronauts would respond to him, he figured, why not Supreme Court justices, especially given the lack of people that could speak authoritatively on the issue of secession? When I told him he wouldn't get meaningful responses, I was right on 9/10 of the justices he wrote to. Scalia was the exception.

But while Scalia was the only one to respond to the substance of my brother's request, other responses did come in. He received three personally signed rejection letters from Justices Clarence Thomas, Samuel Alito and Stephen Breyer, which are all lovingly reproduced here. While reproducing rejection letters isn't exactly the norm, these happen to be first rate, classy rejections. If you're gonna get dumped, it might as well be by the best. Frankly, I was stunned that he even got these. And, as you can see, none of them are form letters. And they use top-notch stationary. Just in case you were wondering.

On the actual substance of Scalia's letter, I will follow in another post with my thoughts on how the issue could reach the high court, despite Scalia's protest in the letter that:

"Secondly, I find it difficult to envision who the parties to this lawsuit might be. Is the State suing the United States for a declaratory judgment? But the United States cannot be sued without its consent, and it has not consented to this sort of suit."

[Now added: How the Supreme Court Could Hear the Secession Issue (A Response to Justice Scalia)]

Regardless of whether one agrees with Scalia's political-judicial beliefs, the guy clearly picked up major cool points for giving my brother a substantive response. Justices Thomas, Alito and Breyer also picked up a few of those points, to the extent that they did take the time to respond, albeit with rejection. Justice Souter picked up a single point for having a secretary respond.

On the flight back from Florida I pondered a question: Is there any significance to the fact that the responding troika of Scalia-Alito-Thomas form 3/4 of the conservative wing?

I'll leave it to others to opine on that subject.

Addendum: A commenter notes that Justice Alito spelled our last name wrong and that this deserves a head-shaking response: "'Turkwitz??' Not true, Justice Alito, not true."

(And yes, Dan still needs an agent.)

Labels: Antonin Scalia, Dan Turkewitz, Secession, U.S. Supreme Court