E-Discovery Should Work Both Ways

E-discovery rule changes are a harassment tool by plaintiff and prosecutor. Their cost alone is a lawyer tool to crush the defendant, and impose a settlement, no matter the merit of the case. The embarrassing nature of irrelevant material, is a lawyer bonus.

The lawyer demands candor and self-reporting by parties. He learned this trick from Stalin. Meanwhile, the lawyer keeps self-dealt, lawyer privileges of secrecy for himself.

Defendants should naturally demand thorough e-discovery of all adverse parties, plaintiff, plaintiff lawyer, prosecutor, regulator, judge, jury (during voir dire). We do not mean the official work computer material only. Personal home computers should be demanded. If refused, motions for dismissal and sanctions should follow. Defendants should do their own internet research on each of these adversaries. Embarrassing material and costliness should be used to crush all the adversaries, as they seek to crush the defendant. Online credit card research and phone records, phone pictures, the works, have forensics rummage around. If any file is erased, it may represent a cover up, and procedurally exploited.

Lawyer Discipline Violates Separation of Powers

In most states, executive branch agencies license, investigate, and discipline the professions. A prosecutor investigates allegations. An administrative hearing follows, with rules of procedure ensues. An administrative law judge decides on the merit of discipline. The licensing board then takes action as they see fit. If the licensee, disagrees, he may take the licensing board to court for recourse. The rules of professional licensing are usually enumerated in a licensing act passed by the legislature of the state.

If a complainant gets no satisfaction from the licensing board, he has the option of filing a lawsuit in torts. A jury will then regulate the professional, based on the facts.

Not so for lawyers.

No executive branch. No legislature.

A supreme court writes the Rules of Conduct, a legislative act. It hires a prosecutor to investigate complaints. Prosecution is an executive function. This prosecutor rarely acts on public complaints against lawyers. He mostly acts on complaints from lawyer hierarchy members, such as judges. If this prosecutor finds enough to act further, he prosecutes the lawyer, before the supreme court, his own employer. If the prosecutor is an employee of the court, they have to face him every day. Defendants come and go. The prosecutor is prosecuting before his employer, the Supreme Court of the state.

People With Filthy Hands Should Not Point Fingers

This article bashing doctors for pursuing continuing education at lectures sponsored by drug companies, this article is surrounded by four ads.

Hat tip to the doctor bashing news of the day collecting symtym.

Toxic Effects of Law School

The authors of this article forgot something. The law student is undergoing indoctrination by a criminal cult enterprise.

"Institution-level analyses showed that although students at both schools suffered, one school was perceived as more controlling than the other, predicting greater difficulties for its students." This outcome was measured by grades, bar exam results, and self-starting motivation in the first legal job.

Locality Rule and Telemedicine

In 1881, the medical establishment refused to wash its hands before inserting fingers into wounds. Today, it may be telemedicine.

I have demanded the scientific evidence from Dr. Lewis that national standards serve patients better than local standards. She is shunning this demand. Why? There is no straightforward rule or evidence of the superiority of one over the other.

A doctor practices in a rural location where patients must drive long distances in snow for routine care. They do their follow up care over the internet. The patient may take their own blood pressure, and the doctor may recommend a change in medication, called into the local pharmacy. Something goes wrong. The patient sues the doctor for negligence. The well paid expert from Hopkins has never run a medical practice over the internet. He testifies an in person examination is the national professional standard of due care. The jury agrees with his persuasiveness. A massive verdict goes to the plaintiff, with exemplary damages to deter such telemedicine.

Now, this doctor stops seeing patients on the internet. Other doctors learn from his verdict, and they stop seeing patients on the internet. Now, aged, frail people are driving long distances in the snow, causing many horrendous accidents on snow covered roads. Far more people are now hurt, some not driving to doctors' appointments.

The application of a retrograde national standard has now hurt many more people than the local standard of care ever had.

Dr. Lewis has to address the scenario where the local standard is better than the national standard.

This has a 100% certainty. All advances came from isolated local standards, adopted years later at a national level.

Not only will the proposal of Dr. Lewis hurt people, it may crush innovation.

I have patience. I will await her data showing national standards help patients more than local standards. Otherwise, the reverse should be implemented. States recognizing national standards as the standard of due care, should reverse their rule, and return to the reliance on local standards.

Objective Measure of Mainstream Prescribing

What is the real standard of care for a condition, by age, by state? Is there a reliable, objective way to find out what all other docs are doing? What is the definition of the prudent doctor? What fraction is "a respectable minority?" Do these change as time passes since FDA approval of a medication?

Verispan knows the entire content of every script written in the US. Not cheap but gives the totality of the practices of all doctors in the jurisdiction. For mid-4 figures, they can answer the question, how many doctors in a jurisdiction have prescribed the same medication to patients with the same demographic features?

The Locality Rule

JAMA, increasingly, a left wing propaganda organ of the American Medical Association, has a review. The doctor bashing, biased lawyer who wrote it advocates that all states adopt a national standard of due care in medical malpractice claims, as 29 states do. The rest allow a statewide standard, a same- or similar-community standard. This anti-doctor lawyer finds the locality rule ethically "troubling." The local standard rule may make it difficult for the plaintiff to find a doctor to testify against another. She finds the locality rule promotes substandard medicine. She advocates, "more evidence-based, a resource based, nationwide standard of care should be adopted in all jurisdictions." To further lawyer plundering of clinical care, she claims this legal doctrine, "would better enable plaintiffs to find experts willing to testify and further promote justice for all parties."

In the past, the Supreme Court has found persuasive the practice of a majority of states to establish the same legal doctrine in all the states. They reason, if a majority of states have a law, it likely is state standard of care in lawmaking. Her count of 29 of 50 states will likely persuade the Supreme Court, should they ever cert such a case. For example, a plaintiff in a locality rule state loses the medmal case. She would have won, if a national standard were the rule. They appeal to the Supreme Court. The Court will likely overturn the verdict for the defense, based on the majority of states' using a national standard, and not the locality rule.

This pro-plaintiff, lawyer garbage, endorsed by the left wing, clinician bashing AMA misses a few points.

1) Her lawyer assertions are conclusory. There is no scientific evidence to support this lawyer, self-serving argument. I demand her scientific and epidemiological evidence that a national standard of expert testimony has ever helped a single patient. Attorney Lewis has not yet provided these data.

2) Her anti-doctor, lawyer rent seeking promoting utterances bash local innovation. As a lawyer, she shows her contempt for the innovative local clinician. The latter leads clinical care, with the academic paper shuffler merely verifying local practices, years later. Years later still, the data get published. These are reviewed years after that for the writing of cookbook, obsolete guidelines, setting nationals standards. These reflect the medicine of 7 years before, which no local doctor is doing anymore. So, combat scene medical innovations are local. Years later, the good ones help the entire nation's civilians. They would be subject to lawyer second guessing, using obsolete, ineffective, nationals standards. At one point, the digging into the bullet wound of President Garfield, with unwashed fingers of established academic experts, that had just touched horses, that was a national standard. This national standard killed, by sepsis, a President with a survivable wound. Her argument coin, that national standards may elevate inferior local standards, has an obverse side. Superior, creative local care may be quashed, and deterred by obsolete national standards. Academic paper shuffling experts may bash the practices of more experienced, smarter local practitioners.

3) Local differences often reflect factors not controlled by a physician. For example, if only 20 year old generics are on the insurance formulary, nothing the doctor does will provide care in accordance with national standards. This local doctor basher still wants to hold them accountable, to enrich her clinical care plundering lawyer pals.

4) Her pro-plaintiff arguments violate the Tenth Amendment, and the Lopez limits on burdening the states. They over-reach into state prerogative, without policy or legal justification. She wants to impose wrongheaded legal standards from above, from the lofty academic heights where her ilk resides, to generate testimony fees for national academics clueless about local conditions. These academics often have less clinical experience or knowledge than the locals. In many cases, the locals know more about patient care than the experts, because they have done more of it.

This article is a type of guideline making. If any physician defendant finds it used in a claim against him, the defendant should ask the defense attorney to file a cross claim against attorney, Michelle Huckaby Lewis, her employers, JAMA, and the AMA for the legal harm they have caused, without the slightest scientific support in clinical care. To deter.

Marburygate or Misconduct in Marbury v. Madison

John Marshall is the greatest Chief Justice of the Supreme Court, Marbury v. Madison, 1803, the most important case. These are accepted dogma down to grade school. Arcane lawyer textbooks mention ethics problems, but quickly gloss over (1,2). Critical reviews go unread, not even referenced (3).

Facts

1. Double Dipping. Marshall was Secretary of State for Pres. John Adams, until inauguration, March 4, 1801. He served as Chief Justice of the Supreme Court February 4, 1801. Jefferson won the election, breaking an electoral tie, February 17. Article I, Section 6, the Incompatibility Clause, prohibits simultaneous service in the Executive and Legislative branches. Service in the Judicial branch is not expressly forbidden (4).

2. Nepotism. James Marshall, the brother was assigned the task of delivering the Justice of the Peace Commissions. These were not judgeships, but at will, executive branch agency jobs for the
administration of the District of Columbia. Salary was to come from the executive branch. James failed to deliver Marbury's commission prior to midnight, March 3. Jefferson was cousin to Marshall. They hated each other.

3. Personal Involvement. The undelivered commissions were left in the office of the Secretary of State Marshall. Marshall judged his own conduct in this case.

4. Supreme Court Jurisdiction. Mr. Marbury claimed the Judiciary Act of 1789 permitted a trial at the Supreme Court on a writ of mandamus. Article III, Section 2, The Original Jurisdiction Clause, assigns appellate jurisdiction in such matters. The Supreme Court so held, to their credit. But it chose to go on with the case. It held Section 13 of the Judiciary Act, conferring such jurisdiction to be unconstitutional. Although, it felt it proper to grant Marbury his writ, the unconstitutionality of that Section precluded doing so by lack of jurisdiction.

5. Conflict of Interest. There was a little tension between Federalist Court and Republican Congress. They canceled the Supreme Court sessions of June and December, 1802. They repealed the Circuit Court Act, forcing the Justices to ride circuit, once again. They removed Justice Pickering for alcoholism and insanity. They impeached Justice Chase, but failed to remove him.

6. Misreading. Section 13 of the Judiciary Act allows mandamus remedy where the Court has jurisdiction. It does not extend jurisdiction, in violation of Article III. If it were read properly, Congressional discretion to enlarge jurisdiction, in the Exceptions and Regulation Clause, would permit enlargement of jurisdiction. The central holding is therefore incorrect (5).

7. Judicial Power to Increase Judicial Power. In its trickiness and dodging, it is equally wrong to refrain from carrying out a duty to mandate delivery of a commission. May a Judge "refuse to do justice under the law in order to advance his own personal power and that of other judges"? (6)

Judge Disqualification in 1803

In English common law, judges could be disqualified for money interest in a case (7). The Act of May 8, 1792, permitted disqualification if the Judge was "concerned in interest," had "acted in the cause, or had "been of counsel."(8). In those days, judicial temperament was supposed
to overcome bias, as a judge duty.

Judge Disqualification Today

28 USC Section 4559 applies to Federal Judges, including those on the Supreme Court (9).

Marbury grounds for modern disqualification would include: "personal knowledge of disputed evidentiary facts", "served in governmental employment and in such capacity participated as counsel, adviser or material witness", "a person within the third degree of relationship"
is involved.

No waiver from the party adversely affected is permitted (Section 455 (e)).

Recourse.

There is no mechanism of enforcement if a Supreme Court Justice refuses to recuse voluntarily.

Exclusionary Rule II

What product or method of service from 1803 is acceptable today? None. If someone tried to sell carriages from those days for daily use, tried to practice the medicine of those days, they deserve to be arrested as a threat to public safety.

Why is a corrupt decision from 1803 holding sway? The answer is lawyer cover up, indoctrination of the nation, and worse, of themselves, and lawyer self-dealing. This cover up is for power, in furtherance of judge tyranny.

Summary impeachment is appropriate for challenged judges who violate federal statute on disqualification. Congress is unlikely to go through that difficult, time consuming process.

Failing impeachment, the decision should be voided automatically by statute. It is not enough to cancel the vote of the disqualified Justice. Given the secrecy and cover up at the Court, it is unknown if the disqualified Justice tried to convince, made deals, or otherwise influenced peers. That decision must be voided as "bearing the fruit of the poisoned tree." Marbury v Madison should be the first case so voided.

Footnotes

1. Barron, JA, Dienes, CT, McCormack, W, Redish, MH: Constitutional Law: Principles and Policy Cases and Materials. LexisNexis, Newark, NJ, 2002. Pp.11-12.
2. Chemerinsky, E. Constitutional Law, Principles and Policies. Aspen, New York, NY. 2002. Pp. 39-46.
3. Paulsen, MS: Marbury's Wrongness. Const Comment. 20: 343-357, 2003.
4. Id. at 350.
5. Id. at 353, summarizing several critics of this misreading.
6. Id. at 357.
7. Flamm, RE: Judicial Disqualification, Recusal and Disqualification of Judges, Aspen, New York, NY, 1996. P. 9.
8. Id. P. 10.
9. Bassett, DL: Judicial Disqualification in the Federal Appellate Courts, IA L Rev 87:1214-1256, 2002.

Death Penalty and Mental Retardation

The Supreme Court banned the death penalty for convicted murderers in Atkins v Virginia.

1) Atkins spent so much time with lawyers, his intelligence performance improved. IQ changes with education. Atkins now qualifies for the death penalty, based on his IQ test performance.

2) The Court used an obsolete definition of mental retardation, a test score. Overall function now defines MR, with greater reliability. Thus someone running a successful drug dealing business in a rough area since childhood likely has superior social and business skills. I would like to see the Justices survive that environment.

3) The Court had refused to grant a writ of certiorari to a California appellate decision banning the use of IQ tests to qualify minority students for special education help, to help. Yet it permits the use of IQ in the death penalty, to punish.

4) All behavior is brain based. It is not the fault of a professional pitcher that he can throw a ball at 95 mph. Perhaps, he should not get the consequence of a lucrative contract. Brain function problems are irrelevant to qualification for consequences of behavior, whether positive or negative. Clearer, more intense consequences help those who have trouble learning from experience.

This case may have inspired a new approach to remediation for slow learners. It should be researched in a systematic way. Send half a sample of students with MR to special education class, the other half to intern in lawyers' offices. See which group performs best on retesting a year later.

Death Penalty and the Dose-Response Curve

Take an established miraculous remedy. Before penicillin, 90% of pneumonia patients died. After penicillin, 90% survived. Penicillin works well, miraculously well.

Give penicillin to only 1 in 10 pneumonia patients. Give penicillin at 1/10th the proper dose. Give penicillin 7 years after the onset of pneumonia. Price penicillin at $1 million a dose. Among those receiving penicillin, include 20% without pneumonia at all. How does penicillin look as a remedy?

The dose-response curve has so far not appeared in the death penalty debate.

Law making and not making law are both human experimentation on a massive scale. It requires markedly above average care and verification. Pilot testing in small jurisdictions should prove a remedy. Then, apply the remedy to a larger jurisdiction. When the court impedes the death penalty, it saves the life of a convicted murderer. It does not seem to care about any possibility that it increases the murder rate and other criminal victimization rates.

An experiment should be undertaken in controlled environment, such as two large prisons. In one, all murder by inmates get a rapid death penalty response. In another, no death penalty may apply. Count the criminal victimization rates in each prison.

The Dose-Response Curve must be worked out for all remedies, especially legal remedies. Few if any legal remedies has a scientific study ahead of time. If anyone knows of some, I would like to start to collect them. Some legal remedies have post remedies studies. Many turn out to be catastrophic and get repealed. This is irresponsible, unauthorized human experimentation by lawyer with ghoulish results. Any remedy missing a prior study is a crime against humanity. Worse, it makes judges appear to be acting like know nothing two year-olds, throwing valuable vases about, chaotically, knowing nothing about what they are doing. It brings opprobrium on the rule of law. This has to change at this late date in history.

Remedies.

1) What dose is too little and will fail to work?

2) What dose is too high and will be toxic?

3) What is the window of time during which the correct dose must be applied? If a breast tumor is the size of a pea, it responds to surgical removal. If time has passed, and it is the size of a softball and has spread to the lymph nodes, surgery will not work.

4) What types of people will respond (host factors)?

5) How many times will the remedy have to get applied before being declared ineffective?

6) What are the limits of the remedy?

7) What is the cost of the remedy, excluding rent seeking and gouging?

8) Prove the remedy is superior to others or to doing nothing.

Scientific evidence and proof of a remedy, with the above parameters is required, or a remedy violates the procedural due process right to a fair trial, as well as a human experimentation treaty.

Good Day

Any day Yale or an affiliate is sued is a good day. To have them sued by a former Yale Law Prof, who roundly criticized the "expensive, capricious and unpredictable'' civil justice system in the U.S"? In agonizing pain? With a claim for exemplary damages? Tasty.

This claim supports the point that lawyer Rent Seeking Theory trumps all ideology and political loyalty. Conservative, liberal, it makes no difference. Generating lawyer jobs and cashing in on torts comes before all else for the lawyer.

Precious Moment in Rent Seeking: You Are Not Qualified to Know If You Are Innocent

The best way to stay out of jail is to say, my lawyer will contact you, FBI.

Other utterances risk jailtime.