The Standard of Professional Care in Trial Advocacy

The criminal prosecution sets the standard of performance for all trial advocacy: 75% success rate.

1) The prosecutors are recent law graduates with little experience.

2) They get paid a low wage.

3) They carry dozens of cases at a time, if not hundreds.

4) Their research budgets for each case have 4 numbers if lucky.

5) The defendant has no morals, and is strongly motivated to evade punishment.

6) Their lives get threatened.

7) Their charges contain more elements.

8) The burden of proof is higher than in other actions, beyond a reasonable doubt.

9) Every element must be shown to have been intentionally done.

10) The element and the intent must be proven beyond a reasonable doubt.

Any other type of court not meeting the 75% rate of success for the plaintiff implies a subpar performance of the judge. The judge has allowed poor performance by the plaintiff side. If the rate of verdicts favoring the plaintiff falls below 75% over two years, the judge should be removed by the administrative judge automatically.

Why Torts Die, According to Yale Indoctrination Victim

This article casts suspicion on all torts today. They may all be pretextual (false use of the law).

1) Yet, I don't know why it takes 74 pages to miss the self-evident. Those without assets are judgment proof. He also missed the Rent Seeking Theory as Grand Unifying Theory of Not Just Appellate Decisions, But All Lawyer Decisions (the so called GUTNJADBALD).

2) Here is something else he missed. Goofiness of torts, rejected by juries. It is goofy to believe that rare accidents can be foreseen. That is the central doctrine of negligence. I demand that the authors give me the four numbers for tonight's lottery. They are far more likely to correctly do so than to foresee a car accident at the most dangerous intersection in the nation.

3) Why do scams die? They did not produce enough money for the effort of the scammer. Or, people learned from experience, and stop responding to the scam. Scholasticism methodology of church and law is not just a false theory, a scam, but is also a robust business model. So, many heretics burned at the stake were wealthy. The church seized their property. The church has moved on from Scholasticism, the best of thinking and technology of 1250 A.D. It did so hundreds of years ago. It apologized for the Inquisition, the business end of Scholasticism. The goofy, ridiculous, American lawyer continues to milk its Rent Seeking strengths.

The sole remedy is to end all judicial and governmental immunities. That fairness would accelerate the cycle of tort death by raising the risk cost of false torts. It would bring the great benefits of torts to those that inflict them on others. See how they like it.

Reverse Hans by statute. Repeal the corrupt, self-dealing Eleventh Amendment. Pass Constitutional amendment ending all self-dealt, lawless judicial immunities. Pass another ending res judicata, which is just another self-dealt, corrupt judicial immunity. The oppressors on the bench are not just incompetent, but also intentionally predatory. They make stealthy industrial policy without competence nor authority. They transfer massive amount of funds from the productive to the parasitic, mostly to lawyers.

The sole justification for such immunities is that the immune sovereign can never be wrong, speaking with the voice of God, a violation of the Establishment Clause. This article shows, the sovereign is often wrong, and reverses himself.

So, it is learned that the justices knew that smokers cost less to government by their earlier deaths, not more, as claimed in the tobacco settlement. All tobacco money gets returned, with triple exemplary damages for scienter. Take a state down. Bankrupt the voters that elected these incompetent, self-dealing predators to the bench. To deter.

The tort claim is a product, dangerous in its intended use. This article shows, they get defective and obsolete.

Rent Seeking Theory Explains this Weasel Outcome

The Justices do not even have to take responsibility for it, by recusing themselves with bogus ethics pretexts.

However, massive lawyer make work now proceeds.

Editors of JAMA on Industry Influence on Medical Science

Eleven remedies.

1) List all trials with the International Committee of Medical Journal Editors.

2) Have all authors specify their contribution.

3) All affiliations and funding of for profits.

4) Consider funding when deciding to publish.

5) No data collection or analysis by for-profit company.

6) Statistics must be done by someone not employed by for profit.

7) Report and punish any author failing to report conflict or not doing the work.

8) Ban anyone reporting confidential information from a peer review to a for profit company.

9) Fire any editor who allows a for profit to manipulate a decision.

10) No for profit input into educational programs or materials.

11) All doctors are to be free of influence including that of service on a speaker's bureau.

"When integrity in medical science or practice is impugned or threatened - such as by the influence of industry - patients, clinicians, and researchers are all at risk for harm, and public trust in research is jeopardized."

I guess the AMA does not understand something. This is America and not Cuba. These are remedies where no harm has taken place. They are left wing ideologue bullying.

Here is another remedy. I will be requesting the removal of this unAmerican left wing ideologue from the editorship of JAMA.

Recovery from US Government for Frivolous Fraud Prosecution

A government expert witness contradicted another. The claim had no merit. U.S. v. Mark Capener, M.D.

The court granted a third of the legal costs.

When the lawyer bully comes calling with all the power of government, the innocent defendant should always attack back. Seek discovery of the government lawyer for improper motives. Then countersue the government thug lawyer. Seek full discovery of all experts collaborating with the government lawyer. Always file non-frivolous, well argued ethics complaints, one at a time, in each state of licensure, once a month. The innocent defendant should always have company in the world of uncertainty and pointless, ruinous expense.

The government has dealt itself immunity for interference with contract.

All legal immunities should end. To deter the unjust government lawyer bully.

We Predicted This

You must avoid harm to plants. Animals are getting civil standing in the future. This report sets up plants to get standing. They are even better clients than raucous animals. They do sit there "just like potted plants." This last insult is phyllist.

Next? Bacteria. We will need a fair hearing before using antibiotics to summarily wipe out bacteria by the trillion or to wipe a kitchen counter with a weapon of mass bacterial destruction (WMBD's) such a bleach on a wipe cloth.

Natural Experiment: Prostitution Legal in Brazil

What is the harm prevented by laws prohibiting prostitution? Is there more of that harm in Brazil or Nevada? Most of the research on this question has come from extreme left wing feminists with a hate filled, biased agenda, devoid of credibility. Is there any research that does not carry this baggage, and controls for social class and education?

Improper to Recuse Oneself as Judge Over Pay Dispute

I disagree. The judge's hostility toward the legislator may prejudice the trial of the client of the legislator.

Homosexuals Bully the APA

They foreclose a balanced debate. Here . Here.

More homosexual intimidation and prevention of free speech. Here.

All PC is case. Because rent seeking judges will destroy entities that resist the lawyer generation of discrimination cases, self-censorship is the sole prevention. While I believe everyone should be left alone, who does not harm others, the left wing ideologues believe only intimidation can make their point. They miss the facts. The facts deserted the left 100 years ago.

Drug Company Support of Continuing Medical Education II

Officious, left wing ideologue hypocrite Robert Steinbrook, MD of left wing, Hate America, Dartmouth University, goes apoplectic over sponsored continuing medical education. Meanwhile, he has no trouble taking money from the left wing Macy Foundation to further their left wing agenda. They fund only politically correct grants, under their Harvard indoctrinated graduate infiltrated administration. So Steinbrook' s credibility is nil by his bias. This article has the credibility of a Ford salesman criticizing Toyota cars. The criticism is pretextual and self-interested.

He shows no harm to patients nor to doctors. Yet, the remedies gets threatening. Educational grants by drug companies will be violating Federal anti-kickback statutes, and the False Claims Act. They risk fraud and abuse. How can these be avoided? Funnel pooled grants through agencies such as presumably his own, eliminating the competition to medical school CME activities from far more competent commercial providers.

Meanwhile, JAMA, that left wing propaganda organ, is filled with drug company advertising. No mention of that anywhere. JAMA also provides its own CME, and is a competitor to those it attacks.

Here. I am still looking for the disclosure statement of the conflicts of interest of Dr. Steinbrook, the Macy Foundation, and of JAMA.

Court Rules in Favor of the Lethal Injection

This ruling is in accordance with the Rent Seeking Theory of Appellate Decisions. Had the Court ruled otherwise, all executions would have stopped. That would have stopped the huge lawyer business of appealing death penalty convictions. Each murderer is worth a $ million to both sides of the death penalty.

Here is an alternative. Three strikes, and you're dead. One, two, three convictions for a violent crime, Sayonara. The main theory supporting that approach is that the deceased have a low rate of recidivism for violent crime. That approach would also end the dilemna of the high rate of death penalty convictions of innocent people, roughly 20%. Even if the death penalty gets applied to a person innocent of the third crime, he merits the penalty by the other two violent crimes. The count should start at the earliest age tolerable to the public. Fourteen, the demarcation of biological adulthood, carries a lot of logic. This ends the injurious career of vicious people before they have had a chance to commit their hundreds of crimes a year. This is a victim safety approach. Gangs would end by attrition.

The problem is that lawyers would have no customers left. But the current balance of terror maintained by the lawyer, especially oppressive to minorities, would shift from the victim to the violent predator.

Suit Opposes Denial of Off Label Prescribing by Medicare

Here.

The cancellation of a prescription by refusing to pay for it is the practice of medicine.

The Supreme court has held a half dozen times, clinical judgment has presumptive validity and requires deference.

There is interference with the contracts in effect between doctor and patient, CMS. That is an intentional tort. The contractor of Medicare should not have government immunity from such a claim.

Yale Clerks Correlate with Reversal of Judge Decisions on Appeal

Here. Comments by former students confirm the ideological use of the law taught at Yale Law School. It should lose its tax exempt status, and all its government funding should stop.

Review of Malpractice Maldistribution

Here, and here, by Ted Frank.

And by Eugene Volokh, here.

With regard to the lawyer statistics, including Volokh's statistical sophistry.

If 100% of the medmal plaintiff lawyers are responsible for the 75% failure rate of their weak cases, shouldn't they all lose their licenses? I like a three strikes law. Lose three, become a high school history teacher.

This is even better. To deter. Oppose corporatist tort reform, an ineffective lawyer Trojan horse. End all self-dealt lawyer and judge immunities. Then sue them personally into stopping their misconduct. All lawyers and judges carry massive insurance policies to make whole the victims of their lawyer carelessness. This includes the victims of a false verdict, breaching res judicata, as warranted. Classes get covered. So the 1000's of chemical workers losing their jobs after the company bankrupting false breast implant verdict get compensated for lost wages.

These lawyers sure have dozens of duties to the defendant, enumerated in the Rules of Conduct, Evidence, Civil and Criminal Procedure. These are formal statutory duties and settled Supreme Court holdings. Deter the self-dealing tort feasors.

Drug Company Support of Continuing Medical Education

The left has been on a campaign to end such support. The efforts get reviewed, here. These include self-regulation by companies, anti-kickback enforcement by the Justice Department. They further propose ending all commercial support, refusing to accredit any sponsored activity, allowing contributions only to central depositories, to be run by left wing ideologues and to plunder them, increasing disclosure requirements. The JAMA authors find the current situation, "... at best very troubling."

There is only thing missing. The fact of any harm shown either to patients, or to costs.

There are a couple of problems not discussed in the left biased JAMA.

1) These measures interfere with clinical judgment, and violate about 6 Supreme Court decisions holding for a presumption favoring clinical decisions. The most famous is Roe v Wade.

2) There is a racist component. No one cares about the use of brand medications for middle class white people. When it comes to minorities on the public insurance, doctors cannot be trusted to control themselves. They helplessly write for brand names after receiving a pen or a sandwich. This implies that minorities need only generic medications with troubling side effects, that could not get approved by the FDA with today's standards, that pet owners would refuse.

Valid Point: Every Penny of Health Costs Comes from Workers

Here. The employer gets his health insurance funds from the productivity of the workers, as does government. There is no shared responsibility. The rise of health costs faster than wages and productivity increases cannot be sustained.

There is one thing the article does not mention. Allowing workers to control their health expenditures entirely, instead of tyrannical government officials. Workers would then have a vested interest in pushing costs down. The biggest savings in health costs comes from improved health.

The Lawsuit is a Product

The lawsuit complaint is a product, like a toaster. It can thus be “defective.” Several features support this assertion.

1) The complaint is not a written expression protected by the First Amendment. It is a tool to make money. When a writing is a tool and not an expression, it becomes a product subject to standard of care. Aviation maps that were incorrect and resulted in a crash were deemed to be defective products (1).

Mushroom textbooks that caused poisoning resulting from error in the illustration were deemed to be expression and protected by the First Amendment (2). They were said to be like books about aviation maps, not the aviation map product itself. One does not peruse nor read a complaint to learn of the author’s feelings and ideas. The complaint is a tool that is used for an effect, as a map is used to find a landing strip.

2) The dictionary definition supports (3): “a thing produced by labor.”

3) The legal dictionary supports (4): “something that is distributed commercially for use or consumption that is usually 1) tangible personal property 2) the result of fabrication or processing and 3) an item that has passed through a chain of commercial distribution before ultimate use or consumption.”

4) The Supreme Court agrees it is manmade items (5). “... respondent's microorganism is the result of human ingenuity and research.” The lawsuit is similar to a weaponized virus and artificial microbes, originating in human manufacture and having similar effect.

5) Intellectual property law supports (6). One will likely not be able to copyright a lawsuit complaint, as one might a pantomime or a book. Once a lawsuit has been committed to paper or other medium, one may apply for an utility patent a lawsuit if the complaint has originality (7).

6) A patent is a legal filing similar to a lawsuit. A patent holder was sued for product liability for a faulty design. The appellate court threw the case out for policy reason to avoid discouraging the filing of patents. It indicated that a patent was not an expression protected by the First Amendment, as claimed by the defendant (8, 9). On the other hand, the placement of a trademark, without involvement in any aspect of production, led to liability for a defective gift umbrella (10).

7) The lawsuit is heavily advertised and solicited.

8) It is manufactured on a custom but mass basis, using a format similar to the chassis of a car, upon which custom requests of the customer are loaded.

9) It is portable and delivered.

10) It is for the purpose of increasing income of lawyers.

11) It is purchased by the plaintiff, and made the subject of a contract with the lawyer.

12) It is aimed at the defendant like a gun. As does a gun, it requires a license.

References

1. Brocklesby v. United States, 767 F.2d 1288, 1294-95 (9th Cir. 1985), cert. denied 474 U.S. 1101 (1986) (mushroom encyclopedia protected by First Amendment); Saloomey v. Jeppesen & Co., 707 F.2d 671, 676-77 (2d Cir. 1983); Aetna Casualty & Surety Co. v. Jeppesen & Co., 642 F.2d 339, 342-43 (9th Cir. 1981); Fluor Corp. v. Jeppesen & Co., 170 Cal. App. 3d 468, 475, 216 Cal. Rptr. 68, 71 (1985). http://www.hsba.org/HSBA/Legal_Research/Hawaii/sc/15263.cfm (travel guide did not have duty to warn huge Pacific surf of Hawaii could be dangerous)

2. Winter v. G.P. Putnam's Sons, 938 F.2d 1033, 1038 (9th Cir. 1991)

3. http://dictionary.reference.com/search?q=product

4. Black’s Law Dictionary, 7th Ed., West Group, St. Paul, MN. p. 1225.

5. Diamond v Chakrabarty, 447 U.S. 303, 100 S Ct 2204, 65 L Ed 2nd 144 (1980).
http://caselaw.lp.findlaw.com/scripts/printer_friendly.pl?page=us/447/303.html

6. http://www.copyright.gov/circs/circ1.html#wwp

7. 35 USCA Section (102). http://www4.law.cornell.edu/uscode/35/102.html

8. Principles reviewed in: http://www.autm.net/pubs/journal/92/liability92.html

9. Case decision: [still looking]

10. Kennedy v Guess, Inc., 806 N.E.2d 776 (Ind. 2004)

http://www.state.in.us/judiciary/opinions/archive/04210401.rts.html

Formula to Pass the MPRE

Here. The left side of the equation is always the distractor to snare the simp law student.

Lawyers in Self-Help

Nice. I wonder if any lawsuit will follow.

Indemnity Clause in Internet Terms of Service

This is what I will be watching in this case . Rommates.com may seek costs and consequential damages from its posters, after their signing the Terms of Service.

1) The indemnity clause is condemned by the UCC if between unequal parties.

2) Contracts of adhesion with a disparate parties is unconscionable per se, according to the UCC.

3) The indemnity clause represents free corporate liability insurance provided to the offeror, by the offeree, without disclosure of this effect.

4) Let's say the offeree has $100,000 in assets. Let's say, I could buy such a corporate liability insurance policy covering $100,000 of liability for $1000 a year. Then, the offeror has received a liability insurance equal to the assets of the offeree, and has been unjustly enriched by $1000 a year. That unjust enrichment should be disgorged in a class action lawsuit to retrieve the value of all the corporate liability insurance provided for free. Because this is insurance, it does not require that the offeror tried to collect on the liability coverage.

5) The provision of insurance by an unlicensed, unregulated offeree breaks the insurance laws of the state. The contract indemnity clause promises to perform an illegal act, unregulated, unapproved insurance.