Tuesday, June 30, 2009
Exhibit A: “Oklahoma City woman trades sex for chips.” Now I’m not exactly sure what this means: did she give someone chips to get sex, or did she receive the chips, or am I reading this entirely wrong and she agreed to give up sex for these chips? In any event, this strikes me as a really bad sign for the value of the dollar. . . or as more proof that you can’t eat just one.
Exhibit B: “Monkey urinates on Zambian president.” Good times in Zambia! According to the article, Zambian President Rupiah Banda, known for his wit, told the monkey, “You have urinated on my jacket.” The monkey declined comment.
Exhibit C: “The Pentagon Approves Creation of Cyber Command.” I understand they're calling it ARCADECOM, which is better than Skynet.
Exhibit D: “Nudism Is A Green Vacation.” There are 1.5 million nudists in France, and they want you “textilists” to join them. They claim that nudism saves laundry costs. But how would they know? They’re French.
Monday, June 29, 2009
Our system suffers from wasteful over-treatment, exposes patients to an amazingly high risk of under-treatment, and results in an incredible number of preventable injuries. The existing mechanisms for monitoring quality control are simply inadequate.
Over-Treatment Wastes Billions
As noted previously, over-treatment, i.e. the providing of medically unnecessary tests or procedures, wasted $500-$700 billion in 2007. Yet, as also shown, only a small portion of that amount -- between $6 billion and $66 billion -- can be attributable to defensive medicine, i.e. lawyers. The rest, according to a study by Dartmouth’s Institute for Health Policy and Clinical Practice, was caused primarily by the lack of clear national standards. Indeed, recent studies have shown that many doctors lack adequate information on the risks/benefits of common treatments.
This leads to inconsistent care, including both the over-treatment mentioned and under-treatment. Under-treatment occurs when patients do not receive care that is both cost effective and medically effective. For example, the Dartmouth study found that patients had just a 50% chance of receiving flu shots, where appropriate, or receiving aspirin or beta-blockers following a heart attack, or receiving antibiotics to treat pneumonia, even though these treatments are inexpensive and are well known to improve patient health in those situations.
Another recent study, found that doctors fail to tell patients about abnormal test results 7% of the time -- 1 out of every 14 tests. This study, of the records of 5,000 patients who were tested for high cholesterol, diabetes, colon cancer or breast cancer, found significant variances in the performance of doctors, with some failing to inform patients as often as 26% of the time. This inconsistency frustrates early diagnosis, which is the key to effective treatment.
Preventable Medical Injuries
More significantly, however, the lack of standards and poor supervision/ oversight lead to a vast number of preventable medical errors each year that result in significant injuries.
A study by Healthgrades of 37 million patient records from 2000-2002 found that an average of 195,000 hospital deaths each year were the result of preventable medical errors. (A prior, smaller study by the Institute of Medicine estimated that medical errors cost 98,000 lives in 1999.). According to Healthgrades, even a 20% improvement in just the areas of failure to rescue, bed sores, postoperative sepsis and postoperative pulmonary embolism could alone save 39,000 people each year.
A 2006 study by the Institute of Medicine found that 1.5 million preventable drug-related injuries occur each year.
A 1997 study published in the American Medical News, estimated that cost of treating injuries resulting from medical error could be as high as $200 billion annually, and adversely affect the lives of tens of million of Americans. Bringing this figure forward to present day dollars would yield $520 billion, and this figure does not take into account lost wages, lost productivity or other non-treatment costs.
So why aren’t the current oversight mechanisms working?
Boards of Medicine Are Failing At Policing The Profession
The groups primarily tasked with ensuring the quality of health care in the United States are the state medical boards. However, these boards show a wild variation in disciplinary rates, a variation one would not expect if they were maintaining a consistent level of quality.
For example, in 2001, fourteen states and the District of Columbia disciplined less than two physicians per 1000. D.C. disciplined 0.73 per 1000. At the same time, the top ten states disciplined more than five physicians per 1000, with Alaska disciplining 10.52 per 1000.
That is 14 times the rate of the District of Columbia Medical Board. So unless you believe that Alaska doctors are simply 14 times more dangerous than D.C. doctors, then it is clear that a different level of oversight is being applied in different states (there is no regional pattern to this data either).
This data raises serious questions about the extent to which medical boards are protecting patients from bad doctors. Indeed, concerns have been raised about (1) whether these boards are adequately funded and staffed, (2) whether they conduct appropriate investigations, (3) whether they are independent of state medical societies and political influence, and (4) whether the disciplinary structure is itself reasonable.
Hospital Oversight Is Even Worse
Changes in the law have allowed hospitals to escape liability for the actions of doctors by separating themselves from the doctors. Thus, more and more doctors are being made independent contractors of the hospital, with the limited oversight that entails. And while hospitals ostensibly monitor doctors when deciding whether or not to extend or revoke hospital privileges, these credentialing committees are slow to revoke privileges, because they are more concerned with legal maneuvers than doctor oversight. Indeed, there is a perception that being too aggressive about oversight will lead to litigation, either by doctors or by patients who learn that their doctor was suspended.
Medical Malpractice Fails As Quality Control
Some (mainly lawyers) argue that medical malpractice serves the function of ensuring quality control by providing doctors with an incentive to take appropriate care. Thus, they oppose anything that reduces their ability to sue doctors.
However, the Congressional Budget Office rejects this reasoning. According to the CBO, “it is not obvious that the current tort system provides effective incentives to control such injuries.”
For example, the CBO notes, health care providers generally are not exposed to the financial costs of their own malpractice, because they carry insurance. Moreover, the evidence shows malpractice claims are far too few to provide an effective deterrent. According to the CBO, of the 27,179 estimated instances of malpractice in New York in 1984, only 415 (1.5%) resulted in claims being made. Therefore, it is likely that malpractice provides little incentive for providers to exercise greater care.
Thus, effective reform must:
1. Reduce over-testing,
2. Improve compliance with the standard of care,
3. Reduce the number of preventable medical injuries, and
4. Find an effective manner to oversee the medical profession to ensure quality control.
Sunday, June 28, 2009
Why did they do this?
Short answer: they don’t like you. Longer answer: Environmental theologians, like Al Gore the Prophet, believe that carbon dioxide, a heat-trapping "greenhouse" gas, is the primary cause of global warming.
They note that carbon dioxide emissions from the burning of oil, coal, and natural gas constitute about 80% of all man-made greenhouse gasses in the United States. Moreover, they note that man-made carbon emissions have increased worldwide more than 70 percent since 1970, and are now 40-45% higher than they were at the start of the Industrial Revolution. And they want this stopped. The Democrat’s cap and trade system, supposedly, will cut those emission, which will reduce the amount of greenhouse gas in the air, and will therefore prevent global warming.
So will it work?
Many people think it will. Indeed, a full 63% of Americans believe that human activity is the greatest source of carbon-dioxide emissions. But then, a 2006 survey found that 70% of Americans couldn’t find Iraq on the map, despite that whole war thing, and 33% couldn’t find Louisiana, despite that whole Katrina thing.
Perhaps we should ignore uninformed opinion and instead look at some facts? And here is one: human-caused carbon emissions come to a grand total of 3.27% of all carbon emissions. That’s right, 3.27%. The rest are caused by the decay of “biomass” (i.e. dead trees, leaves, etc.) or are released through volcanic activity. Thus, cap and trade will only affect a maximum of 3.27% of the problem.
Can reducing that 3.27% solve this problem? No. Ask yourself, if you are ten feet under water, with an additional foot of water being added every minute by a waterfall and an additional inch of water being added by your friend with a bucket, do you really think you can solve the problem by asking your friend to switch to a smaller bucket?
(For our congressional readers, we have a crayon-ready picture version of this last paragraph available upon request.)
But wait. . . there’s more!
They’re not even trying to fix the full 3.27%. No, indeed. Why? Because the Kyoto treaty, which is what Obama is trying to implement through this cap and trade scam, excluded developing countries (i.e. real polluters) from having to cut back their own emissions. Thus, China and India don’t need to make any cuts at all. Guess which country is the world’s biggest polluter? If you said China, then you’re too smart to be a Congressman. China accounts for 28% of the world’s pollution, and is growing rapidly.
So now we’re not even talking about fixing the 3.27%, we’re talking about fixing some portion of about twenty percent of that 3.27%.
Think of it this way: your neighbors’ cars belch out black smoke all day, but we’re going to “fix” the air quality problem in your neighborhood by making you drive your new Prius 10% slower.
Ok, what’s this going to cost?
The Democrats have been pimping a cost figure produced by the Congressional Budget Office that found that this legislation will cost the average household only $175 a year by 2020. Or as Ed Markey (D-Twilight Zone) claims, this will “cost less than a postage stamp a day.” Of course, that’s a lie.
The CBO study looked only at the cost of operating a trading program, it did not examine “the potential decrease in gross domestic product that could result from the cap.”
In other words, it only counted what the government will spend administering the program, it did not count how the program will affect the rest of us. This is like me claiming that I can reduce your grocery bill to $120 a year if you pay me $10 a month to buy groceries for you with your credit card. See the problem? If not, send me your credit card.
So what will it really cost? The Heritage Foundation estimates that this law would
• cost the economy $9.4 trillion in lost GDP by 2035,And if you don’t want to believe the Heritage Foundation, consider that the prior version of this bill, the Lieberman-Warner bill, died after it was determined that bill would
• destroy an average 1.2 million jobs per year,
• increase electricity rates by 90%,
• increase gasoline prices by 58%,
• increase natural gas prices by 55%, and
• will result in an overall cost to the average family of four of $6,800 per year (more than half of what they currently spend on health care).
• cost the average family $6,752 per year,Moreover, the Lieberman bill had significantly lower goals than the current bill (reducing emissions by only 70% instead of 83%). Thus, the Heritage Foundation’s report likely understates the costs.
• increase the costs of gasoline 144%,
• increase the price of electricity 129%, and
• eliminate 4 million jobs.
Won’t this hurt the poor the most?
Sure. These costs will have their greatest impact on food and energy. Thus, the harm from this bill will be highly regressive in nature, meaning that the poor will suffer the most. Also, the poorest parts of the country will be hit hardest by the job loses because those states rely on coal, farming and manufacturing more than the enlightened states. And here I thought the Democrats were the party of the poor?
As an aside, when your liberal friends start complaining about the cost of gas or electricity, tell them that the Republicans offered three amendments to suspend the program if gas hits $5 a gallon, if electricity rates increased by more than 10% in 2009, or if unemployment exceeds 15%. The Democrats defeated each of these, because they care about the poor. . . unlike those job-saving, gas-cheapening Republicans.
But do you know what’s even better?
This bill won’t even work to reduce green house emissions! At least, that’s what Greenpeace says.
The Waxman-Markey bill sets emission reduction targets far lower than science demands, then undermines even those targets with massive offsets.An offset is like an indulgence. You can sin all you want, you just need to pay over a little something special to the pope and all will be forgiven. Remember your friend with the bucket? If you allowed offsets, he could keep adding water, but he would need to pay some politically connected third-party a rental fee on the bucket. That will solve the problem.
Greenpeace continues. . .
Greenpeace has expressed tremendous concern about the role of offsets in this legislation. Unless strictly controlled, the abuse of offsets could prevent real emission reductions for more than a decade. The decision to move authority over offsets from EPA to the Department of Agriculture further reduces the likelihood that such controls will be maintained and increases the likelihood they will undermine real reductions.Department of Agriculture? Seriously? The same people who keep the nonsensical ethanol program running because it helps huge industrial farms (science be damned) and who kept the food pyramid upside down for 30 years to please lobbyists? Nice choice. Was the Bureau of Corruption unavailable? How do I get one of these jobs. . . I like suitcases full of cash.
(For our Congressional readers, that’s called sarcasm. . . sarcasm . . . oh look it up, I’m not going to explain it to you.)
So who do we thank for this?
The vote was 219-212. To get the bill through, the Democrats relied on the support of eight useful idiots, as Stalin would have called them. Not only did they not read the bill (300 of the 1200 pages were added, unread, at the last minute), but these eight idiots allowed eight Democrats in vulnerable districts to vote no, to protect their re-election chance. Here are their names:
Chris Smith -- NJIf you see these “Republicans,” spit on them. . . unless you’re really tall, then replace the p with an h.
Dave Riechert, WA
John M. McHugh - NY
Frank A. Lobiondo - NJ
Leonard Lance, NJ
Mark Steven Kirk, Il
Mike Castle, Del
Mary Bono Mack, CA
Wednesday, June 24, 2009
Is Access Really A Problem?
While it is certainly questionable whether or not the government should be involved in expanding health care coverage or trying to make it less expensive, there does seem to be significant support for addressing such concerns. When asked by Gallup to rank their concerns with the current system, Amercians cited "access" and "cost" as their top two concerns. Not surprisingly, liberals cited lack of "access" by a 2-1 margin over “cost” as their primary concern. More surprisingly, however, conservatives and moderates ranked “access” and “cost” equally.
And indeed, lack of access to health insurance does have societal costs. According to the American Enterprise Institute, 27% of the nation’s 1.2 million yearly bankruptcies are caused primarily by medical debts (between 36% and 55% (depending on the source) involve at least some medical debts). Moreover, hospitals provided $35 billion worth of “uncompensated” care in 2008, though 80% of this was ultimately compensated by the government.
Presumably, expanding access to insurance could solve these problems.
The 46 Million Uninsured
The most obvious issue with regard to access are the “46 million uninsured Americans.” No doubt you’ve heard this figure repeatedly. And while it is true that in 2007, 46 million people (15% of the population) were indeed without health insurance for at least part of the year, it will probably not surprise you that this number is not what it appears.
Of these 46 million, 17.5 million lived in households with incomes above $50,000 and are considered able to afford insurance. Another 11.5 million are eligible for public assistance, but have failed to avail themselves of that assistance. Thus, the actual number of uninsured persons who are in fact unable to become insured because of lack of income are only 17 million.
Moreover, another 9.7 million of these uninsured are non-citizens, whose health care expenses should be paid for by their country of origin. If they are removed, the total number of persons who cannot obtain insurance due to lack of income is really 7.3 million.
Another 5 million of those without insurance are considered uninsurable because of pre-existing conditions.
The Costs Of Becoming Insured
The side of the “access” problem is the ever increasing cost of health insurance. Health insurance premiums are increasing at twice the rate of inflation.
Currently, 59.3% of Americans receive their health insurance coverage through an employer. The annual premium for private insurance is $4,700 per single person and $12,700 for family of four. Another $2,500 per person, was spent in 2007 out of pocket on medical expenses.
Compared to the median household income of $50,233 (according to 2007 Census Bureau figures), these costs are significant. Moreover, this insurance is susceptible to being lost during employment changes.
Another 27.8% of Americans receive their health insurance coverage directly from the government (Medicaid (39.6 million), Medicare (41.4 million), Tricare, etc.). However, these programs are massively expensive. In 2007, the federal and state governments spent a whopping $11,093 per enrollee in Medicare and Medicaid. That is 2.4 times what private insurance paid.
Thus, effective reform must do the following:
1. Dramatically reduce the costs of Medicare/Medicaid.
2. Maintain or reduce the costs of private insurance.
3. Provide insurance coverage to the 17 million who cannot afford it, and the 5 million who are considered uninsurable.
4. Provide insurance for the 9.7 million aliens through their home governments.
5. Eliminate the problem that job loss can lead to loss of insurance.
Tuesday, June 23, 2009
Sadly, there are no easy answers. Local referral services? No, they just give you the name of one of their members. Friends? No, they don’t know any more than you do. And, let me assure you, many people lie about how well their attorney did for them. The lawyer you met at the bar the other night? Puulease. I can’t tell you the number of clients who have gotten amazingly wrong information from some drunk attorney they met. How about the guys on television? Maybe, but most of them are high volume guys who are more interested in getting a quick settlement.
So what do you do? You listen, you ask, and you watch.
Listen To Their Pitch
When you first meet with an attorney, they will give you a pitch. You need to listen closely for danger signs that this is not the attorney you want. For example:
• Do they over-promise? Competent attorneys will never promise to win your case, and they will never tell you how much money you are likely to get. A competent attorney will explain to you the pros and cons of your case, and will give you an indication of what you should seek as damages. They will also caution you, repeatedly, that there are no guarantees.
• Does the attorney get emotional about your case? Attorneys should believe in their cases, but should not become emotionally involved. If the attorney starts foaming at the mouth or promising to “get them”, “punish them” or “crush them,” you want to move on.
• Does the attorney suggest that they have some special relationship with the judge? If so, move on. Not only is this rarely true (and unethical when it is), but guys like this are usually incompetent.
• Does the attorney talk about their win/loss record? It is basically impossible to have a win/loss record in the legal profession. Most matters involved mixed results, e.g. a two year sentence can be a big win for someone who was expecting ten years. The real question is how happy the clients are with the results they have achieved.
• Does the attorney claim to be ranked? This is pure garbage. There is no system to rank attorneys, nor would such a system make sense because what attorneys do is too varied and impossible to track. When you hear about rankings, these are created by groups that usually were formed by the very attorneys they rank. It’s marketing.
• Does the attorney spend time trying to understand your case or do they just keep pitching? And, do they seem to grasp what you are telling them?
Ask Some Questions
Not only should you listen to the pitch, but you should ask questions to get your hands around the attorney’s level of experience. For example:
• Have they handled cases like yours before, and what results did they obtain? The greater the experience, the deeper the experience, the better.
• Ask about their trial experience generally. How many trials have they personally had, and what was the subject matter of those trials?
• What issues (pro and con) do they see in your case? A competent attorney should always be able to outline the issues for you, even if they need to research how to handle those issues.
• What kind of experts do they think need to be hired? This question will give you a good sense of how competent the attorney is to handle trial work, especially when you are a dealing with a technical issue (such as medical malpractice cases). A competent trial attorney should always have a game plan, which includes the need for expert evidence.
• Who will do the work on your case? Will the attorney do the work or will you be palmed off on a junior associate?
• What does the attorney need from you? The attorney needs you to make the case happen. They should ask you right off the bat to gather documents and help them meet with witnesses.
Keep Paying Attention
Even after you’ve hired the attorney, you need to keep paying attention. If you’ve made a mistake, change attorneys. Here are some good rules to follow:
• Ask for copies of all documents produced by either side. If you can’t understand what your attorney wrote, the judge probably can’t either. Also, comparing the filings may tell you whether your attorney is being outclassed. Moreover, this lets you track whether or not your case is being worked or has been pushed aside.
• Attend depositions. You have a right to attend any deposition in your case. Take it. This is your chance to see what all of the witnesses will say and whether your attorney can get information out of reluctant witnesses. It will also tell you if your attorney grasps your case. Good attorneys involve their clients in depositions.
• Attend hearings. This is your chance to see your attorney in action before the judge, and to compare them to the other attorney.
• Does your attorney dismiss your concerns? Does your attorney never return your phone calls? Does your attorney seem unable to explain to you what is happening in the case? Do they blame you for problems? Move on if they do.
In all of this, use your judgment. If your attorney doesn’t seem to know or care what is going in your case, move on. If your attorney seems reluctant to proceed and only seems to be humoring you, move on. If your attorney can’t answer your questions, move on.
Monday, June 22, 2009
While there can be no doubt that some portion of the $500-$700 billion is the result of defensive medicine, the available evidence shows that defensive medicine accounts for only a very small portion of the amount.
Largest Estimate: $113 Billion/$66 Billion
The largest estimate given for such costs came from then-President Bush, who claimed in 2004 that 5% of medical costs were the result of defensive medicine. If true, this would account only for a maximum of $113 billion of the $500-$700 billion in medically unnecessary tests/procedures. That’s it.
However, even if this were accurate, the actual number would be much lower than $113 billion because most of the $2.26 trillion is not connected to the delivery of services. Thus, Bush gave a range, which went as low as 2.5%. This would reduce the $133 billion to $66 billion.
But It Could Be As Low As $6 Billion
But there is another problem with this figure. The study Bush relied upon does not appear to be reliable for reaching the conclusion that he reached. That study, by economists Daniel Kessler and Mark McClellan, compared the cost of two types of cardiology-related procedures in states that had enacted tort reform and states that had not. They found a 5% difference in costs between the two groups of states, and then extrapolated that to all medical costs.
Yet, when the Congressional Budget Office attempted to apply the same methods used by Kessler and McClellan to a broader set of ailments, it “found no evidence that restrictions on tort liability reduce medical spending. . . CBO found no statistically significant difference per capita health care spending between states with and without limits on malpractice torts.” The GAO reached the same conclusion.
Similarly, a 1990 Harvard Medical Practice Study of New York physicians found an insignificant relationship between the threat of litigation and medical costs, even though physicians reported that their practices had been affected by the threat of lawsuits.
A study published in the Journal of Health Economics in 1999, found that tort reform related to births by cesarean section did result in costs savings, but those costs savings were only 0.27%. Applying this to costs in general, as Bush did with the Kessler/McClellan study, would result in savings of only $6 billion.
Finally, a congressional Office of Technology Assessment study into the effects of “defensive radiology in children with head injuries and defensive Cesarean sections” concluded that “it is impossible in the final analysis to draw conclusions about the overall extent or cost of defensive medicine,” and then found that less than $54 million could be attributable to defensive medicine in these areas.
Thus, at best you’re talking about $113 of the $500-$700 billion, but more likely the figure is much, much smaller between $6 and $66 billion.
What Is Causing The Rest Of The $500-$700 Billion
So where does the rest of the $500-$700 billion come from? According to a study by Dartmouth’s Institute for Health Policy and Clinical Practice, there is a direct relationship between the availability of services and how much those services are prescribed, whether or not those services are medically necessary. Dartmouth found, for example, that where more medical beds were available, doctors prescribed more hospitalization, even though this was not medically necessary nor did it result in better results for patients.
According to the Dartmouth report, and various follow up reports, there are two suspected causes for this.
• First, there is a lack of clear national standards that results in wildly different treatment being provided in different geographic regions. Indeed, recent studies have shown that many doctors lack adequate information on the risks/benefits of common treatments. This results in both over and under treatment.
• Secondly, flawed payment systems reward doctors for providing more care, whether or not that care results in better treatment or results.
Thus, while tort reform should be a part of any reform, tort reform alone cannot solve this problem.
Before we can talk about repairing the system, however, we must first understand what is wrong with the system. The problems with the American system fall into three broad categories: (1) out-of-control costs, (2) access to health care, and (3) quality control. Today we talk about out-of-control costs.
In 2007, Americans spent $2.26 trillion dollars, or $7,439 per American, on health care. This works out to 16% of our gross domestic product (GDP) -- more than double the 7.2% of GDP spent in 1970 and more than any other country spends (except the Marshall Islands). Most European countries spend between 9-10%. And every year, these costs continue to grow, far in excess of inflation or wage growth. This is the core problem at the heart of our health care system.
Following are some facts that you need to know to understand this problem:
• Medical Advances: Half of the growth in health care spending over the past decade has been the result of medical advances.
• Overhead Costs: According to Harvard Medical School, 31% of health care spending goes to pay administrative/overhead costs (this is nearly double the 16% percent spent in Canada). A reduction to even Canadian levels would save Americans $339 billion annually.
• Medically Unnecessary Procedures: It is estimated that $500-$700 billion is spent annually on treatments, tests, or hospitalizations that do nothing to improve health. Studies have shown a direct relationship between the amount of tests/procedures ordered and the availability of such tests/procedures in the local area, even though such increased testing/procedures do not result in improved care. Moreover, where doctors are paid for level of care provided, rather than results obtained, they order more care whether or not it is medically helpful.
• Prescription drugs account for 10% of total spending. The government pays for 34% of these, private insurance for 44% and individual consumers for 22%. Prescription drugs are the most rapidly growing portion of health care costs in the country, though recent shifts to generic drugs are reversing this trend.
• Hospitals provided $35 billion worth of uncompensated care (for the uninsured) in 2008. 80% of this was reimbursed by the government.
• Malpractice Insurance: The legal system is often blamed for causing medical costs to skyrocket. This is not true. According to the CBO, effective tort reform could reduce the cost to physicians of malpractice insurance by as much as 25 to 30 percent. BUT, the overall savings to the health care system would be a minuscule 0.5% (roughly $11.3 billion).
• A 1996 study found that 1% of health care users accounted for 27% of the total spending on health care.
Thus, effective reform must (in order of importance) do the following:
1. Reduce the costs of medical innovation, without reducing the incentive to innovate.
2. Decrease the amount of medically unnecessary procedures/tests.
3. Decrease administrative costs.
4. Reduce the costs of care required by the top 1% of users.
5. Reduce the growth of prescription drug costs.
6. Decrease the amount of uncompensated care.
7. Reform the legal system to reduce the costs of malpractice insurance.
Over the next couple weeks, we will present a series of articles discussing this topic in depth. Our intended outline is as follows:
Today. . . What’s Wrong With Our Health Care System: Out of Control Costs
Wednesday. . . What’s Wrong With Our Health Care System: Access
Thursday. . . What’s Wrong With Our Health Care System: Quality Control
Monday . . . Why Obama’s Health Care Plan Won’t Work
Wednesday . . . Understanding Why Free Market Economics Work, And Government Involvement Fails
Thursday. . . Our Proposal -- What The Republican Party Should Be Proposing
Monday. . . Our Proposal -- Discussing Structural Reforms for the Medical Industry
Tuesday. . . Our Proposal -- Discussing Malpractice Legal Reform
Sunday, June 21, 2009
Sure, fewer jobs means less exposure to occupational hazards and less income to be used on junk food. But it won’t be enough. So they are considering a ten cent a can tax on soda. Over my dead, bloated, toothless body Mr. President.
Still, alone this information is merely ludicrous. But when mixed with the knowledge that Nestle is being forced to recall all of its cookie dough, I become concerned. Could this be mere coincidence? I think not.
Ladies and gentleman, the Obama administration has begun a war against the cookie, a war we must stop.
We must rise from our couches and demand the right to eat cookies. Be firm my soft, chewy friends. I call upon you to eat cookies wherever possible as a matter of civil disobedience. I call upon you to open secret bakeries, hidden speakeasies behind health club fronts. I call upon you to send empty cookie boxes to Washington in protest.
We must never surrender. So long as one of us knows how to bake. . . so long as someone somewhere has the courage to say, “I could use a cookie”. . . so long as milk is sold in stores. . . we must defend our rights! Eat cookies or perish.
If you don’t, this could be our future. . .
Wednesday, June 17, 2009
1. Jury See, Jury Do
One of the most important aspects of being a trial attorney is realizing that the jury is always watching you. Whatever you do, the jury is looking to you for signals to help them understand what is going on.
If you are happy, they know you are winning. If you are frustrated or angry, they know things aren’t going so well for you. Treat your client with contempt and they will too. But most importantly, the more intensely you pay attention to a witnesses, the more interest they take.
This really hit home during my first Federal jury trial, when I watched the jury perk up every time I did. Realizing what was going on, I decided to give my theory a little test. As the other attorney started plowing into the heart of his case, I calmly set down my pen, folded my arms, and leaned back in my chair. I let my eyes slowly roam the room, before staring blankly at the ornate ceiling.
Now don’t get me wrong. . . I was listening carefully to every word. You have to. During a trial, your mind literally runs at 100% during the entire day, but I wanted the jury to think that I didn’t care. Sure enough, the jury took their cue from me. Only a crazy man would zone out during something important, right?
Within a matter of minutes, half the jury had tuned out and was doodling on their note pads. The rest were looking around the room aimlessly. Not one of them was listening to the testimony.
Dirty trick? Perhaps, but that’s part of the trial game.
2. How To Lose Friends And Dissuade People
As Lawhawk mentioned yesterday, objections are rarely discussed before the jury. If the parties need to argue about an objection, the judge asks them to approach the bench. Someday we’ll get into what it is you don’t hear when this happens, but, suffice it to say, that the parties argue with each other and the judge, and some of these arguments can get quite heated.
In another of my trials, I was faced with a very aggressive opposing counsel. It was clear that the jury wasn’t too thrilled with him already, but they hadn’t quite crossed that line yet where they would hold his conduct against his client.
At one point, he raised an objection and asked for permission to approach the bench to argue the point. Upon arriving at the bench, the judge immediately overruled his objection. This started an argument between the attorney and the judge -- a very kind, well respected man that you just couldn’t help but like. Soon both were turning red with barely contained rage and where wagging fingers in each other’s faces.
That was when I realized that I am indeed a better door than a window, and that I was preventing the jury from see the attorney’s antics. So I bent over to tie my shoelaces, giving the jury the full view of this guy laying into the judge, and the judge’s very angry response.
By the time we returned to our tables, the jury hated him, and that colored everything he said.
3. Silence Is Golden
Finally, you should realize that from the moment you pick a jury until the verdict is given, you are under a spotlight. Indeed, you need to be careful how you dress, what you say and how you behave -- both inside and outside the courthouse.
While the parties are strictly prohibited from speaking to jurors outside of the courtroom, it is not at all uncommon to end up at the same restaurant as several jurors or to see them as you park your car. Thus, a good attorney tells their client how to behave at all times until the trial is over. Key among these instructions, keep your mouth shut until we are somewhere private.
Sounds obvious right? It’s not. I have seen several instances where trial attorneys berate their clients (or vice versa) over lunch, only a few feet away from amazed jurors, or in the courtroom hallways, as jurors eavesdropped just around the corner. The jury is told not to consider what they hear outside of the courtroom, but seriously. . . how do you forget an angry attorney telling his client, “you blew it”?
Tuesday, June 16, 2009
As you may recall, there are currently 17 Uyghurs residing at Guantanamo Bay. . . that is to say, there were.
Earlier this month, the United States obtained the agreement of the president of Palau, Mr. Johnson Toibiong, to take thirteen of these gentlemen off our hands for the minor sum of $200 million. Why he could not take all seventeen is not known. Perhaps the Palau Hilton was full? Perhaps Palauan President Toibiong didn’t like the fruit basket? We don’t know. But we do know that this left Team Obama with the little problem of four unwanted Uyghurs.
The brain trust charged with handling this delicate situation are named Greg Craig and Daniel Fried, two senior level Obama advisors who have been assigned the task of dispersing the inmate at Gitmo, giving new meaning to the barman’s call: “You don’t have to go home. . . but you can’t stay here.”
So what did Team Obama come up with? No, they didn’t just drive them to a rest stop in Cuba and shove them out the door. They flew them to Bermuda, and set them free.
Now, don’t think for a moment that they did this without the permission of Bermuda’s Premier, Ewart Brown. No, they weren’t that crass.
And don’t worry, there was no dirty deal. Bermuda was simply “playing the Good Samaritan in recognition of its 400 year friendship with the United States,” said Brown. The fact that 78% of the island’s income comes from financial services, an industry now owned by Mr. Obama, or that 90% of Bermuda’s tourist industry is dependent on the United States had nothing to with this, or so we are assured.
Nevertheless, Fried and Craig got them quite a good deal. Premier Brown not only agreed to let them settle in Bermuda, but he agreed to let these Uyghurs become naturalized citizens -- a right not even held by many persons born on the island itself.
So why would this upset Britain? Well, there seems to be some vague relationship between Britain and Bermuda. Indeed, Bermuda is considered a British Overseas Territory. Thus, Bermuda’s head of state is the Queen of England, and all matters related to foreign policy and/or security, which includes immigration, fall under the purview of the Governor of Bermuda, Sir Richard Gozney.
And here’s the kicker. . . Team Obama never told anyone in the British Government they were doing this until it happened. Read that again.
This is a major diplomatic slight, equivalent to Britain negotiating a secret treaty with the Mayor of Kansas City. Naturally, the British are quite upset. Whitehall officials are privately accusing Team Obama of treating Britain “with barely disguised contempt.” Said one senior British official:
"The Americans were fully aware of the foreign-policy understanding we have with Bermuda and they deliberately chose to ignore it. This is not the kind of behavior one expects from an ally."
Moreover, the British now face a very real problem. Remember that promise of citizenship? That will give these Uyghurs the right to travel to the UK and to apply for British citizenship. Thus, while they can still be denied entry to the United States, they cannot be denied entry to the United Kingdom. Take that you dirty Brits.
But wait, there’s more. After the British became upset, Team Obama lied about informing the British. Indeed, Team Obama trotted out zombified-Secretary of State Hillary Clinton to claim that she discussed the transfer with British Foreign Secretary David Miliband in what she described as “an uneasy conversation.” Really? “Guess what we’re about to do to you!” I wonder how that conversation ended?
Britain, however, denies this, as does Bermuda Governor Gozney who stated, “We were only told this morning.”
United States official, speaking off the record, seemed to concede this point with their defense: “We did talk to them before the Uyghurs got on the plane.” As does Premier Ewart Brown, who himself described the talks that led to this as “private and somewhat restricted.”
And like that, the love between America and Britain vanishes without a trace. . . another victim of the Bermuda Love Triangle.
Monday, June 15, 2009
Obama's Promises Are Nonsense
During the campaign, candidate Obama promised to create five million jobs and to bring peace between the very rocks and the waves. Sounds good, right? Think again.
Unemployment at the end of 2008 was at 6.9% according to the Bureau of Labor. Said differently, of the 155 million “workers” in the United States, 10.6 million were unemployed. Obama’s plan to create five million new jobs, therefore would have translated into a reduction in the employment rate from 6.9% to 3.2% -- two percentage points below what is considered the natural rate of unemployment. That’s not good. Can you say hyperinflation?
Fortunately, times change and so do Obama’s promises. A month later, as Obama assumed the position in the Oval Office, he lowered his claim. Gone was the plan to create 5 million jobs, and in its place was a promise to create or save 3.5 million jobs. This would bring unemployment down to a more realistic 4.5% (if all the jobs were created) or it would leave it unchanged (if Obama favored us only with saved jobs).
Of course, the claim that he would “save” jobs made this promise nonsensical, as Republican Sen. John Ensign pointed out to Treasury Secretary Tim Geithner (pictured left):
"When you use the term 'create or save' you've given yourself complete leverage where you cannot be wrong, because you can take any scenario and make yourself look correct."
And Ensign would be right, except that Obama can’t stop taking credit for everything good he can find. Thus, not only can we analyze Obama's plan, but we can analyze the results he is trumpetting. . . and they blow.
The Obama Plan
Obama told us that he would only shake his magic job-giving beads, if we passed the stimulus bill. The price tag on the stimulus bill was $787 billion (not counting the $152 billion already provided in the Economic Stimulus Act of 2008 or the $700 billion spent on the Troubled Asset Relief Program (TARP), $455 billion of which has already been given to 608 companies).
Thus, depending on what you include, Obama plans to spend either $939 billion or $1.649 trillion to create those 3.5 million jobs. That works out to either $286,285 or $471,142 per job.
(And this doesn’t even address the issue that the $787 billion price tag for the stimulus is understated, with the real price tag being closer to $3.27 trillion -- which would mean we’re paying $1.28 million per job).
How Is Obama's Plan Working?
In the past week, there have been murmurings about the lack of jobs. See, Obama promised to create or save 3.5 million jobs between January 2009 and January 2011. But while we are nearly a quarter of the way to January 2011, he’s only created 150,000 jobs so far -- a mere 4% of the number promised.
Even more troubling, 66,000 of those were short-term summer jobs created by the census department, each of which would have been created even without the stimulus, and each of which will disappear again soon. Thus, Obama's stimulus really created only 84,000 jobs (or 2.4% of his total promise).
To be fair, though, Obama hasn't spent all of the stimulus yet. Indeed, he's only spent $719 billion of the total stimulus so far. . . working out to around $8.6 million per job!
But never fear, Obama has promised to step up his game. He will shake the magic beads again. On Monday, he promised that he would create/save another 600,000 jobs in the next 100 days. Of course, 125,000 of these are part-time summer youth jobs, and 135,000 are public sector education jobs, and 5,000 are public sector law enforcement, but the other 335,000 could well be permanent, private sector jobs.
And while this hardly fits Obama’s state of the union promise that “more than 90 percent of these jobs will be in the private sector,” at least this is a step in the right direction. Indeed, won't adding another 750,000 jobs to the economy will reduce unemployment by 7%, bringing the unemployment rate down to 6.5%? No.
It would have worked that way, if unemployment hadn’t kept increasing. But the May unemployment rate rose to 9.4% or 14.5 million unemployed. Thus, while Obama was busy making 84,000 jobs, the economy lost 3.9 million jobs, for a net loss of 3.8 million jobs!
Moreover, Obama’s promise to create (or save) 3.5 million jobs doesn't look so good anymore. Even if he manages to create all of those jobs, his efforts now will only “reduce” the unemployment rate to 7.2% -- 0.3 percentage points above where it was when he started.
Sweet dancing gnomes! $4.122 trillion in spending and $3 trillion more in loan guarantees under the TARP, and that's all we're going to get?!! Stop Mr. President. . . just stop.
But I will leave you with this little bit of good news. At this rate, it will take Obama 91 years to bring employment to zero in this country. . . just a little longer than it took the Soviets.
Sunday, June 14, 2009
Exhibit A: Presto. . . chango. . . Obama likes to begin press conferences by showing us that he has nothing up his sleeves.
Right before he casts his spell. . . New York Times. . . you. . . are a chicken.
Exhibit B: Here Obama hypnotizes a group of Congress members for his own amusement. . . you will buy me a car company. . . you will buy me a car company. . .
Exhibit C: These are not the droids you’re looking for . . . Obama uses a Jedi mind-trick to keep pesky reporters at bay.
Exhibit D: Yes, he is a clown your amusement. Here Obama levitates a chair, to amuse French President Sarkosy.
Exhibit E: But there is a darker side to his magic. To keep Hillary quiet, Obama has turned her into a Zombie. . .
Snap out of it Hillary. . . Bill needs you in Haiti. . . the land of voodoo.
Next week. . . Barack Obama, Love Machine!
Friday, June 12, 2009
“I opened the door and influenza,” joked WHO chief Dr. Margaret Chan as she emerged from an emergency meeting with flu experts. “We are moving to Phase 6,” she said. “Phase 6 is the agency’s highest alert level.” Under Phase 6, the WHO will send out a harshly worded letter to the H1N1 virus demanding that it cease and desist all further infections under threat of sanctions that will not be enforced. “If that fails, we will return to Phase 5, under which we ignore the problem and pass the blame to individual countries.”
But why go to Phase 6 now? Is the H1N1 epidemic getting worse? “No,” said Chan. Indeed, she indicated that this decision should have been made earlier, but a certain country that she would not name (though she did hum Rule Britannia) has been falsely reporting their data.
Chan also would not say which country technically tipped the world into the pandemic, though she did pantomime a kangaroo stomping a dingo. WHO flu chief Keiji Fukuda was more forthcoming, stating simply: “Australia.” He later elaborated, “They seemed to indicate the virus was spreading rapidly there -- more than 1,300 cases were reported by Thursday. By July 3, I expect everyone on their island to be dead.”
Dr. Thomas Frieden, the new head of the U.S. Centers for Disease Control and Prevention, said in Atlanta that he does not expect widespread public anxiety in the United States as a result of the declaration, largely because of the fact that of 29,000 cases in 74 countries, most have reported only mild symptoms and few have needed medical treatment. Nevertheless, he is hopeful that the new declaration will terrify people.
Dr. Frieden also asked that we wish his grandmother a happy birthday.
David Ropeik, an expert in risk perception and communication at Harvard University, says the word “pandemic” is less frightening than “apocalyptic plague” which he had recommended using.
Said Mr. Ropeik, “This ‘soft build up’ is a blown opportunity. It allows people to get used to what is otherwise a scary word, understand the particulars of the disease, and that should mean that reaction will be a little more information-based and a little less emotional. And frankly, that sucks.”
Each expert did agree that the public should consider itself warned that H1N1 has now technically turned into a pandemic, and that it has the potential to kill us all. So far, swine flu has caused only 144 deaths, compared with ordinary flu that kills up to 500,000 people a year, but that could change at any moment.
The H1N1 virus could not be reached for comment.
Wednesday, June 10, 2009
The left distorts the party's history to keep their own interest groups brainwashed and angry, but the fact is that (like them or not) the Republican Party has been the driving force behind almost every important innovation in United States governance since the Civil War.
Read on, you will be surprised.
The Republican Party (GOP) was founded in 1850 by anti-slavery activists, though its intellectual roots go back to the founding of the republic. Within a few years of its founding, the Republican Party replaced the Whig Party, which had itself replaced the Federalist Party, as one of the two main political parties of the United States.
The first official meeting of the Republican Party took place on July 6, 1854 in Jackson, Michigan. In 1856, the party became a national party, when it nominated John C. Fremont for President. He ran under the slogan: “Free soil, free labor, free speech, free men, Fremont.” These were references to the party’s opposition to slavery and its support for granting western land to settlers free of charge.
In 1860, Abraham Lincoln became the first Republican to become President of the United States. Lincoln gained national prominence after his run for the United States Senate in 1858, when he failed to unseat Stephen A. Douglas, the incumbent Democrat. As part of that campaign, he and Douglas engaged in a series of seven famous debates that became known as the Lincoln Douglas Debates.
Republicans End Slavery and Guarantee Rights For All
In 1861, the Democratic Party-dominated South, seceded from the Union, beginning the Civil War. President Lincoln struggled between 1861-1865 to defend and reunite the Union. During the war, President Lincoln signed the Emancipation Proclamation, freeing the slaves. At the same time, Congressional Republicans passed the Thirteenth, Fourteenth, and Fifteenth Amendments to the Constitution. The Thirteenth Amendment outlawed slavery. The Fourteenth Amendment guaranteed equal protection of the law for all persons, and prohibited the state from depriving any person of life, liberty, or property without due process of law. The Fifteenth Amendment guaranteed all citizens, of any race, the right to vote.
“Four score and seven years ago, our fathers brought forth on this continent, a new nation, conceived in Liberty, and dedicated to the proposition that all men are created equal.”
-- Abraham Lincoln
In February 1870, Republican Hiram Rhoades Revels was sworn in as the nation’s first African-American United States Senator. The following month, Republican Joseph Hayne Rainey became the first African-American member of the U.S. House of Representatives. In 1872, Republican Pinckney Benton Stewart Pinchback became the nation’s first African-American governor, when he became governor of Louisiana.
Nearly one hundred years later, Republican support was crucial for the passage of the Civil Rights Act of 1964, which outlawed racial segregation in schools, public places and employment. Desegregation of the military was completed by Republican President Eisenhower ten years prior. President Eisenhower also enforced the Supreme Court’s decision in Brown v. Board of Education.
Republicans Pass Women’s Suffrage
In 1896, the Republican Party became the first majority party to favor women’s suffrage. This eventually resulted in the Nineteenth Amendment, which guaranteed women’s right to vote. Republicans controlled twenty-six of the thirty-six state legislatures that ratified the Nineteenth Amendment. In 1917, Jeanette Rankin, a Republican from Montana, became the first woman elected to Congress.
Republicans Protect America From Anti-Competitive Monopolies
Protecting the country and the free market from the abusive powers of monopolies and oligopoly trusts became a driving principle of the Republican Party in the 1890s.
In July of 1890, Republican Senator John Sherman introduced legislation to protect the free market from the distorting power of monopolies and other anti-competitive arrangements. This act was signed into law by Republican President Benjamin Harrison, “to protect trade and commerce against unlawful restraints and monopolies.” This historic legislation, the Sherman Antitrust Act, remains the fundamental antitrust law in the United States today.
Republican President William McKinley thereafter appointed the U.S. Industrial Commission on Trusts, which investigated the market distorting practices of oligopoly trusts created by many of the industrial titans of the era, the so-called “Robber Barons.” Republican President Theodore Roosevelt, who earned the nickname the “Trust Buster”, seized upon this report to break up these anti-competitive arrangements, as did Republican President William Howard Taft, ushering a period of tremendous economic growth as the American economy and the nation's small businesses were freed from predatory economic practices.
“We demand that big business give the people a square deal.”
-- Theodore Roosevelt
Republicans Create the FDA
Republican President Roosevelt, promising a “Square Deal” to the average citizen, became the first President to seek to protect the consumer from the hidden dangers of impure food and bad drugs. The responsibility for monitoring food and drugs was given to the U.S. Department of Agriculture Bureau of Chemistry, which eventually became the Food and Drug Administration.
Republicans De-Politicize The Federal Workforce
In 1883, Republican President Chester A. Arthur created the bipartisan Civil Service Commission, which required that most federal jobs be awarded on the basis of merit rather than the “spoils system.” The most famous commissioner of the Civil Service Commission was Theodore Roosevelt.
In 1938, the Republicans worked with Democratic Senator Carl Hatch to pass the Hatch Act, which forbids federal employees from engaging in political campaigning on the job; forbids officials paid with federal funds from promising jobs, financial assistance, contracts or other benefits to coerce campaign contributions or political support; and prohibits the use of federal funds for lobbying. This act was in direct response to discoveries that funds allocated to the Works Progress Administration had been misused by WPA staff members and local Democratic Party politicians to promote the Democratic Party in the 1938 congressional elections.
Republicans Promote Environmental Conservation
The Republican Party has a strong tradition of environmental protection. Abraham Lincoln set Yosemite apart for public use. Republican President Ulysses S. Grant created Yellowstone National Park. Theodore Roosevelt established the Forest Service to promote environmental conservation and to protect federal land. He also achieved passage of the Antiquities Act, which allowed him to designate historic landmarks as national monuments, allowing for their protection and preservation. Additionally, he created fifty-three national wildlife refuges and eighteen national park and preserves, including the Grand Canyon, Devils Tower National Monument in Wyoming, and the National Bird Preserve on Pelican Island, Florida.
“To waste, to destroy, our natural resources, to skin and exhaust the land instead of using it so as to increase its usefulness, will result in undermining in the days of our children the very prosperity which we ought by right to hand down to them.”
-- Theodore Roosevelt
Republican representatives cosponsored the Wilderness Act of 1964, protecting wilderness areas across the United States. President Richard Nixon pushed for the Clean Air Act, which set standards for pollution emissions, and for the Endangered Species Act, which sought to protect endangered species and their ecosystems. Other environmental acts promoted by Republicans addressed toxic substances, safe drinking water, oil pollution, and river preservation, among others. President Nixon also created the Occupational Health and Safety Administration to protect workers’ safety.
Republicans Bring Economic Prosperity
Republican policies have always brought economic prosperity to the United States. Republican President Calvin Coolidge observed that “the business of the American people is business.” Coolidge’s administration decreased personal income taxes in 1924, ushering in the period of unparalleled economic growth which became known as the “Roaring Twenties.”
“Collecting more taxes than is absolutely necessary is legalized robbery.”
-- Calvin Coolidge
In the early 1900’s, President Theodore Roosevelt created the Panama Canal, shortening the distance from New York to San Francisco by 8,000 miles. The Panama Canal remains one of the most important routes for world trade to this very day.
Ronald Reagan became President in 1980, promising a combination of tax cuts and decreased regulation. This policy, labeled Reaganomics, led to the longest period of uninterrupted economic growth and prosperity in American history.
“The government’s view of the economy could be summed up in a few short phrases: if it moves, tax it. If it keeps moving, regulate it. And if it stops moving, subsidize it.”
-- Ronald Reagan
In 1994, the Republican Party seized the majority in the House of Representatives for the first time in forty years. The Republicans immediately turned to balancing the federal budget, which they cut by 10%; reforming the welfare system, which had discouraged work; improving Medicare, which was nearing insolvency; and commissioned the first independent audit of Congress in its history. These policies led to a surge in growth and prosperity, and brought about a surplus in the national budget.
Republicans Keep America Strong
After decades of isolationism, Theodore Roosevelt steered the United States more actively into world politics. His foreign policy, which he characterized as “Speak softly but carry a big stick,” included sending the Great White Fleet on a goodwill tour of the world, ensuring construction of the Panama Canal, and mediating an end to the Russo-Japanese War, for which he won the Nobel Peace Prize.
President Warren G. Harding, who coined the phrase “founding fathers” in his keynote address to the 1916 Republican National Convention, negotiated the Washington Naval Treaty in 1923, which slowed the world’s naval arms race, reduced tensions between western navies, and ultimately led the United States to develop naval aircraft carriers, which allowed America to defeat Japan in World War II and which remain the basis of American military power throughout the world today.
President Eisenhower championed the creation of the nation’s interstate highway system in 1956.
Ronald Reagan rebuilt America’s military, which had languished after Vietnam, and won the Cold War, bringing down the Soviet Union and freeing millions of Eastern Europeans from communist oppression.
Top that democrats. . .
Tuesday, June 9, 2009
To that end, let us dispel a few myths about the appeals process.
Myth 1: You Have A Right To Appeal
Ok, this one is a bit tricky. Every state has trial courts and a Supreme Court. You have a Constitutional right to file an appeal to your Supreme Court, BUT you don’t have a right to be heard. Ooooh delicious. . . only lawyers could love that distinction.
However, some states have created an intermediate level of appeals court that sits between the trial courts and the Supreme Court. In those states, you typically have a right to be heard by those intermediate level courts.
The federal system follows the three layer model -- the trial courts are the District Courts (which sit entirely within a single state) and the appeals courts are the Circuit Courts of Appeals (which hover ominously over several states).
Adding confusion to the appeal issue, there are two ways to handle appeals. A handful of states allow you to appeal individual rulings by the judge as they occur, i.e. while the trial is on-going. The rest limit appeals until after the trial is complete.
Ever wonder why it takes so long to get through a trial in California? Because they allow appeals during the trial. Remember the OJ trial? The OJ trial would have taken about a week in most states.
Myth No. 2: Everybody Appeals
The case is over. Somebody won, somebody lost. But that guy lied, and you know it. So it’s time to appeal. Everybody appeals. . . right?
Actually, no. According to the Department of Justice, between 1988-1997, only 21% of verdicts in the federal courts were appealed. How can that be?
When a case ends, you have a verdict. In a criminal case, the verdict will include a sentence. To get that sentence changed or the verdict overturned, you have to appeal. So why do only one in five defendants appeal? Because often there is no basis for appealing or because the defendant is happy with the sentence.
You heard me. Just like I was ecstatic to hear the cop tell me that he clocked me at 72 mph, a full 30-some mph less than my car had been going, many criminals are thrilled to hear their sentences.
The average sentence for a felony is about five years. That’s the number the politicians will give you to prove their toughness on crime. But this is misleading. Convicts serve on average only 60% of their sentences before being released. Moreover, few sentences are what they appear. You know that guy who did that thing and got 100 life sentences? What you didn’t know, was that the judge ordered them all to run concurrently (at the same time). So he’s basically serving only one life sentence. But worse yet, what constitutes a life sentence varies from state to state and can be as low as ten years. Thus, 100 life sentences can become 10 years. Oh, you’re happy now. . . I can tell.
So why aren’t more civil cases appealed? In a civil case, the verdict will include an award of money. But that doesn’t mean the winner gets paid that amount. This is particularly true where the award exceeds the available insurance. It is the rare lawyer who will try to go after a defendant personally (unless they are a big company). So what really happens is that the parties will meet again after the trial and attempt to negotiate a settlement. In exchange for the loser agreeing not to appeal (which can be expensive, time consuming, and risky to both sides), the winner usually agrees to take something less than the amount awarded.
Myth 3: Appeals Are Usually Successful
Ok, so there are fewer appealing people than we thought. But those that do win all the time right?
Again, no. According to the DOJ, only 20% of appeals in federal court were successful, though the number is higher (34%) in state courts. This means that only 4-6% of verdicts will be successfully appealed.
How can that be? Because the standards used by the appellate courts are against you.
If you want to challenge a factual finding, you have to prove that the jury (if they made the finding) acted arbitrarily or capriciously. In other words, you need to show that no reasonable jury could have reached that conclusion. If the court made the finding, you need to show that the court’s finding was clearly erroneous. Never gonna happen.
Maybe you think the judge acted unfairly in excluding your key piece of evidence? To prove that, you normally have to show that the judge abused their discretion in making that ruling. This too requires a showing that the judge acted unreasonably. But worse, even if you can show this, you also have to show that the error prejudiced you at trial. And I assure you that appellate courts love to find most errors to be harmless.
Your best chance on appeal is to show that the trial court got the law wrong -- either in terms of a written decision (if the court rendered the verdict) or in the instructions given to the jury. Appellate courts will review the law without any deference to the trial court’s decision. That said, however, appellate courts will attempt to resolve appeals on the narrowest issue possible. Thus, while you may be right on the law, the appellate court will look for any reason they can to avoid saying so, and if the trial court goofed in allowing certain evidence to be heard and got the law wrong, the appellate court probably will decide the case just on the basis of the goof.
Myth 4: Winning on Appeal Means Winning the Case
Finally, you’ve won the appeal. So now you win the case right? Sadly, no. It is the rarest of cases where the appellate court declares one party the winner. Typically, the best you can expect is to get a new trial and an instruction to the trial court on what their error was.
Moreover, many appeals result in pyrrhic victories. If you’re appealing a sentence, you may only get an instruction to the trial court to reconsider the sentence in light of some new factor. If you’re appealing the dismissal of your case, you might only get an order to the trial court to make more findings. Indeed, many “successful” appeals result in nothing more than an order to the trial court to cross more t’s and dot more i’s.
Monday, June 8, 2009
Because of their position, federal judges are held to a higher standard than the rest of us in terms of their public comments, in terms of their financial affairs, and in terms of the groups to which they choose to belong. Indeed, according to Canon 2 of the Code of Conduct for United States Judges, which regulates the conduct of federal judges, judges (like Judge Sotomayor) must “accept restrictions that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly.”
Her membership in the Belizean Grove violates this Canon of judicial ethics in three ways:
1) Judges Must Avoid Even The Appearance of Impropriety and Bias
Section A of Canon 2, requires that judges “act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary,” including avoiding “even the appearance of impropriety.”
While the Canon does not contain an exhaustive list of unallowable behavior, the comments to Section A explain that the test for determining whether or not conduct constitutes an impropriety is:
whether the conduct would create in reasonable minds, with knowledge of all the relevant circumstances that a reasonable inquiry would disclose, a perception that the judge's ability to carry out judicial responsibilities with integrity, impartiality, and competence is impaired.
Sotomayor’s membership in the Belizean Grove, at the very least, creates the appearance of a lack of impartiality on her part. That is sufficient to violate her ethical obligations. (Whether there was actual bias should be examined as well should she not withdraw.)
Secret societies typically are formed so that members can help other members succeed by favoring them over non-members wherever possible. The Belizean Grove is no different. It’s own website concedes that the group was established in response to “the power of the Bohemian Grover, a 130-year-old, elite old boy’s network” after “realizing that women didn’t have a similar organization.” In other words, the group was established to create an "elite old girl's network." This is confirmed by the group’s mission statement, which provides that:
The Belizean Grove is a global constellation of influential women who are key decision makers in the profit, non-profit and social sectors; who build long term mutually beneficial relationships in order to both take charge of their own destinies and help others to do the same.
At the very least, these statements appear to identify the group’s purpose as the promotion of bias in favor of group members, which would violate Canon 2’s requirement that Sotomayor take no action that casts doubt upon her impartiality. Remember, whether or not Sotomayor acted on such bias is relevant, the appearance of impropriety is sufficient to violate the Canon.
And before you think this is hypercritical, ask yourself if you were accused of a crime, how comfortable would you feel knowing that the judge and the prosecutor (or the victim) had both agreed to enter into a “long term mutually beneficial relationship.”
Moreover, Sotomayor’s silence on her membership and the fact that the group has a secret membership list make this issue all the worse, in that litigants would have no way of knowing if they were facing a stacked deck (which affects everything about how an attorney would handle the case).
Would this not call into question the integrity of the entire judicial system if people knew that some unknown number of judges might favor an equally unknown group of possible litigants or attorneys? Could you ever believe that you got a fair trial?
Thus, even if the group’s purpose is ultimately benign, her membership creates the appearance of impropriety, which violates the code of judicial conduct. She should have resigned. When she failed, she violated Cannon 2, and she should not now be allowed to sit on the Supreme Court.
2) Judges May Not Allow Others To Suggest Special Influence
Section B of Canon 2 provides that judges may not allow their “family, social or other relationships” to influence their decisions, nor may they “convey or permit others to convey the impression that they are in a special position to influence the judge.”
Belonging to a secret society violates this Canon. Indeed, even if Sotomayor has never once allowed her judgment to be swayed, her membership in this group allows other group members to convey the impression that they are in a special position to influence her decisions.
And while you may say the fault of such a statement lies with the person making it, the Canon makes it clear that the judge is at fault for putting themselves into a position where others can make such claims of influence.
This is a primary reason that judges resign from even the most benign sounding groups, like charities or hospital boards, so that no one can claim to have the ear or the loyalty of the judge.
Thus, again, her membership in the group violates this Canon and she should have resigned.
3) Judges May Not Belong To Groups That Practice Discrimination
Finally, Section C of Canon 2 provides that a judge may not be a member of any “organization that practices invidious discrimination on the basis of race, sex, religion, or national origin.” The Belizean Grove does. Thus, her conduct violates Section C as well.
Now some will argue that this group's purpose is not invidious discrimination, but that it exists solely to "promote" women. But it is clear from the Belizean Grove’s own mission statement that they discriminate on the basis of sex, in that they are open only to female members. This is invidious discrimination just as if it were open only to white or males.
Moreover, the purpose of the group as discussed above, is not to promote women generally, but to discriminate in favor of female members. That too is invidious discrimination.
Sotomayor’s conduct violated all three parts of Canon 2. It is inconceivable that she could not have known this. That she would have continued in her membership despite this is a violation of the Code, for which she should be sanctioned, and which should preclude her from being appointed to the Supreme Court.
Sunday, June 7, 2009
Yessiree, this very morning I received an e-mail informing me that I have won the English Lottery!! Heh heh heh. That’s right, £1.5 million . . . all mine.
So as I wait for the cash to start rolling in, let me say that it’s been fun, but as you saps roll out of bed on Monday for another long day at work, I plan to be sitting on my couch. . . living the high life.
Please disregard the above post dear reader. Apparently, I have not won the English Lottery.
Who knew there was no such thing as a free lunch? *sighs*
You know, in hindsight, I should have guessed something was wrong because I never entered the English Lottery. I guess I just hoped they’d made a mistake. And the more I think about it, it doesn’t make a lot of sense that they would notify me of something like this by anonymous e-mail.
And while we’re at it, I probably shouldn’t have sent my social security number and bank account numbers to someone I didn’t know -- I would never do this if someone showed up on my door -- but this is different, right? This is the internet, and the old rules of common sense just don’t apply on the internet, right?
This isn’t fair. Nobody warned me that this could be a scam. I knew the Spanish Lottery e-mails were a scam, but this was the English Lottery.
Somebody should do a public service announcement to warn people about these things.
Oh well, live and learn. Fortunately, I have other things going on . . . I’m quite close to the Minister of Development in Nigeria, and he’s got a deal for me that sounds too good to be true. I’m very excited.
Thursday, June 4, 2009
On Tuesday on French television -- tres chic -- President Barack Hussein Obama put on a veritable tour de force of mathematical prowess. . . or was it linguistic legerdemain Indeed, with one single rhetorical flourish, he eloquently swept aside generations of meaning belonging to the word “largest” and subjugated this formerly lofty concept to a mediocre status.
Thus spoke President Hopey:
“I think that the United States and the West generally, we have to educate ourselves more effectively on [uh] Islam. [uh] And [uh] one of the points I want to make is, [uh] is that if you actually took the number of Muslim Americans, [uh] we'd be one of the largest Muslim countries in the world.”
Did he really say that? Oui, he did. . . oui, he did.
The Muslim population in the United States is estimated to be between three and eight million people, with most estimates placing the number around six million. If there are indeed six million Muslims in the United States, then 34 other countries have larger Muslim populations than the United States:
Indonesia, Pakistan, India, Bangladesh, Turkey, Egypt, Iran, Nigeria, China, Ethiopia, Algeria, Morocco, Afghanistan, Sudan, Iraq, Russia, Saudi Arabia, Uzbekistan, Yemen, Tanzania, Syria, Malaysia, Niger, Senegal, Ghana, Tunisia, Somalia, Guinea, Kenya, Azerbaijan, Kazakhstan, Burkina Faso and Tajikistan.
That hardly makes us one of the largest Muslim countries in the world.
And if the Muslim population is only 1.8 million, as Pew Center suggests, then 48 other countries have larger Muslim populations than the United States. This includes France, Germany, evil (ethnically-cleansed) Serbia and Israel, though not Britain.
Perhaps, Mr. President, you should have educated yourself about Islam before accusing the rest of us of needing an education?
Perhaps, Mr. President, you should educate yourself about the United States before you open your mouth again?
Perhaps, this was why King Saud was heard to say, in response to your strange assertion, "Inconceivable.”
Wednesday, June 3, 2009
Key among those limitations sits the separation of powers. By dividing the government’s power between its three branches, the Constitution prevents any one branch from becoming too powerful. The creation of “czars” violates that separation and endangers our freedoms.
The Constitution is clear: the Legislature creates the laws, the Executive enforces the laws, and the Judiciary ensures that the other two branches don’t overstep their powers.
The use of czars upsets this balance because it allows the Executive to make law and it eliminates judicial review. This is illegal under the Constitution, it violates our agreement with the government, and it leads to the types of abuses the Constitution was meant to prevent. Our government is a government of laws, not of men. The use of czars flips this on its head and makes our government totalitarian in nature.
To understand this point, let’s begin with a brief outline of how the law actually comes into being: note the level of public review in each phase. All laws begin in the legislature -- the Congress, our elected representatives. Once approved, the law is sent to the President to be implemented and enforced. At that point, interested parties may challenge the constitutionality of the law in court.
To implement the law, the President instructs the relevant cabinet official(s) to review the law and to issue appropriate regulations. The official’s agency then prepares proposed regulations. The agency must give the public notice of its intent to issue those regulations and an opportunity to be heard, i.e. anyone may come forward and comment on the proposed changes. If the government fails to give proper notice, or it denies someone the right to be heard, then the regulations will be struck down as a violation of due process and the procedure must be repeated.
After the hearing period, the agency may issue the new regulations -- which can now be challenged in court on the basis that the regulations exceeded the scope of the law or that they are inherently unconstitutional.
Once implemented, everyone to whom the regulations apply must follow those regulations. If an agency violates those regulations, its action can be challenged in court as illegal.
Now let’s compare that to the czar process.
In the czar process, particularly as Obama is using it, the Executive selects one person to meet with representatives of a particular industry or interest. That person meets with those individuals privately and advises them of the steps that the Executive would like them to take. Standing behind these “suggestions” is the threat that if the industry fails to agree, necessary loan funds or approvals will be withheld.
This is essentially lawmaking even though the industry’s compliance is ostensibly “voluntary” because that compliance is obtained under duress -- you and I might call it extortion.
However, unlike true lawmaking, the public has no say in the laws that are produced, the public has no opportunity to review or challenge the existing regulations, and there is no court oversight of the constitutionality of the law or regulations, of the scope of the regulations, or of the implementation. These laws are made in private and they are aimed at specific individuals, and they cannot be reviewed in court because there techinically are no laws or regulations to review.
None of this is allowable under the Constitution.
Indeed, even Robert Byrd (D-WV) has stated in a letter to Obama that the use of these czars is a violation of the separation of powers:
The rapid and easy accumulation of power by White House staff can threaten the Constitutional system of checks and balances. At the worst, White House staff have taken direction and control of programmatic areas that are the statutory responsibility of Senate-confirmed officials. . .
As presidential assistants and advisors, these White House staffers are not accountable for their actions to the Congress, to cabinet officials and to virtually anyone but the president. They rarely testify before Congressional committees, and often shield the information and decision-making process behind the assertion of executive privilege. In too many instances, White House staff have been allowed to inhibit openness and transparency, and reduce accountability.
I never thought I’d agree with Robert Byrd, but he’s right. And the Republicans need to recognize that he is right. What Obama is doing is totalitarian in nature. He has pushed aside the Constitution and claimed unto himself the power to make law, in private, without the involvement of the Congress, the Judiciary, or the people. This cannot be allowed to stand because the consequences are too dangerous to the continued existence of constitutional government in the United States.
Step up Republicans, defend our rights.