Conservative former Senator opposes tort reform

Fred Thompson, former U.S. Senator from Tennessee, opposes changes to the civil justice system in Tennessee sought by tort reform advocates. His reasoning?

As someone who practiced in the courts of Tennessee for almost 30 years, I believe that a Tennessee jury of average citizens, after hearing all the facts, under the guidance of an impartial judge and limited by the constraints of our appellate courts, is more likely to render justice in a particular case than would one-size-fits-all rules imposed by government, either state or federal.

The civil justice system has checks and balances designed to ensure that each party entering the system receives fair treatment. Each side gets a lawyer to passionately advocate for its position. A judge mediates the case so that the parties have access to evidence they need to present their case. The judge also decides whether a party's claim has enough merit to try before a jury.

After months or years of legal process, the claims of a lawsuit are narrowed down enough to try to a jury. A jury views evidence that is carefully vetted for authenticity, reliability, and relevance. The jury passes judgment on the credibility of evidence and testimony of the witnesses. Only then does the jury decide how wins and how much should be awarded.

The beauty of our civil justice system is that it permits a jury of our peers to decide disputes between citizens based upon the individual facts of each case. Tort reform seeks to change that fundamental right, and even conservatives like Fred Thompson recognize that tort reform is a bad idea for justice.

Insurers defaming Arkansas doctors to curtail small claims

Yesterday, the Arkansas Supreme Court affirmed a $21,000,000 verdict against Allstate Insurance Company for defaming a Pine Bluff radiologist. Allstate repeatedly told injury victims, lawyers, and other doctors that this radiologist’s practice was illegal and fraudulent because Allstate wanted to minimize payouts for smaller claims. The radiologist lost at least $8,000,000 in income over more than a decade due to this defamation by Allstate and other insurance companies, and for this reason a jury awarded significant punitive damages. Rather than taking its lumps, Allstate appealed, and the Arkansas Supreme Court found:

[T]his course of conduct was taken by a nationally recognized insurance agency and, apparently in accordance with their national claims practices and procedures to curb small, soft-tissue claims.

This ruling explicitly acknowledges that Allstate has a specific set of practices designed to minimize claim payouts on smaller claims at the expense of the injury victim. As discussed before on this blog, when insurance companies fail to pay fair value for claims, oftentimes the injury victim winds up receiving government healthcare to treat injuries. Why should the taxpayers foot the ultimate bill for negligent acts when the very purpose of insurance is to pay to make injury victims whole?

What are the implications of this ruling? In Arkansas, it is the first acknowledgment by our high court that insurance companies have adopted the delay, deny, defend business model of defending claims. This ruling follows an increasing public awareness of the problem of insurers becoming more concerned with shareholder profits than protecting policyholders and injury victims. As one example, CNN did three reports identifying Allstate as a prime offender (youtube of part 1, part 2, part 3). Long term, we should all hope that this opinion is the first step towards making insurance companies serve the people, and not the other way around.

Patents vs. trademarks

A friend of mine asked me a great question today: what’s the different between patents and trademarks?

Patents and trademarks are similar in that both are considered to be intellectual property (along with copyrights and trade secrets). Intellectual property, generally speaking, is a right the government grants to you in exchange for registration of an intangible property right. Intellectual property rights permit you to exclude others from using your intellectual property without your consent. Intellectual property is considered personal property, like a car, that can be sold or transferred through an estate.

There are distinct differences between the two. A patent deals with the invention of an apparatus or process. For a few examples from my practice, you could patent a new fishing yo-yo or a new boat pontoon, or you could patent a process for folding sheet metal or using computer software to manipulate data. A quick way to differentiate patents is to remember that they deal with manufacturing, either a product itself or a way to make the product. Patent rights arise ONLY from registration, and they expire 20 years after filing.

A trademark is a symbol that consumers use to identify the source of a product. So, consumers recognize the term COKE as a product made by a particular cola manufacturer. A quick way to differentiate trademarks is to remember that they deal with brands and marketing. Since trademark rights deal with consumer recognition, they necessarily arise ONLY from prior use, and they never expire as long as use continues. Registration just confers broader geographical rights as well as procedural and evidentiary benefits in legal proceedings.

Any given product can be covered by different types of intellectual property. For instance, a pontoon boat could have patented pontoons and a patented deck and still be protected by a  trademarked brand name.

Any business with valuable ideas, products, or brands should adopt a policy on how to secure and enforce intellectual property rights. Let us know if we can help.

Factors in teen driving crashes

Traffic crashes account for one-quarter of all teen deaths, according to a recent report co-authored by the Children’s Hospital of Philadelphia. The four factors that most influence teen crashes are failure to use seat belts, speeding, alcohol use, and distracted driving. The report concludes that most teen driving crashes are attributable to inexeperience, and advocates for allowing teens to gain experience under lower-risk conditions, such as limiting the number of passengers in the teen’s car.

For other recommendations for ensuring your teen’s safety behind the wheel, check out the seven suggestions for parents we posted earlier. If you’ve got any other recommendations for keeping teens safe, we’d be happy to post them here.

Growth ticks up in Clark County

According to the report from the January meeting of the ABC, several convenience stores in Clark County received off-premises beer permits from the ABC last week. KARK reported that one Arkadelphia business already hired a new employee to service new customers, and KATV reported that one store sold 550 cases of beer the first day. That’s over $10,000 in single-day gross sales a local business didn’t have this time last week. Over the course of a year, our local 2% sales tax will generate in the neighborhood of $60,000 in revenue from that store alone. These sales represent real growth, since this money was traveling outside our county until last week.