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Wednesday, February 25, 2015

E-Filing of Lawsuits and Legal Papers

Electronic filing of lawsuits and other court documents has existed for Federal Courts for a long time.  Other states have used it for just as long, and some counties in Wisconsin have adopted it, but it is not mandatory yet, and paper copies can still be filed in the handful of Wisconsin courts that allow e-filing.  However, it may soon be mandatory in circuit courts of Wisconsin to e-file documents with the court, including the Complaint -- the action that starts a lawsuit.

A very interesting article was recently published in the New York Times regarding e-filing and how these electronic documents are being devoured by audiences all over the country and world -- audiences that ordinarily would never care about this stuff.  It is worth a read (link below) and as I will not discuss the article verbatim or in its entirety, it is worth reading to understand my points below.

http://www.nytimes.com/2015/02/23/us/lawsuits-lurid-details-draw-an-online-crowd.html?smid=tw-share&_r=0


Essentially, the article discusses the fact that cases that otherwise would not get much media attention, are being sensationalized well before the defendant files an answer and actual litigation takes place.  Because defendants have a specific time period to answer a complaint (20 days, or in Wisconsin in a civil court, 45 days), this gives people the chance to read accusations against a defendant and sensationalize the story.  The article mainly deals with discrimination or gender-related suits, as these Complaints are usually very specific and contain accusations that easily draw in readers and followers.  They are Complaints that are easy to sensationalize.

It is problematic.  On the one hand, the person (plaintiff) filing the suit has the upper-hand.  They get their story out first.  They are able to generate sympathy for their case, and a presumption that the defendant did something wrong.  (It should be noted that in both civil and criminal cases, the party bringing the action has the burden to prove the other party did something wrong).

On the other hand, the accusations may ruin the defendant before the defendant actually has a chance to defend him or herself, or a corporation to defend itself.  Public e-filing also essentially allows the plaintiff to try the case to the public (assuming the story gets picked up) before any litigation even begins and facts and evidence are discovered.

It can also be problematic in that, as the article points out, in a case where there should be a settlement, or at least negotiations, the defendant will refuse because the defendant wants his or her or its name cleared by a trial.  This may make the litigation process more adverse and both sides may end up spending lots of money for no reason.

As the article notes, further negative consequences for potential plaintiffs are that they do not want to sue because of the ridicule, especially in sex discrimination cases and gender-related suits, such a plaintiff may receive by the online community.  These insults and accusations will forever remain on the internet.  Think about lurid details in a divorce lawsuit.  Whether true or not, anytime a perspective employer or perspective significant other googles that person, this information will come up and may need to be explained.

Perhaps that is why I received an email from the Easter District of Wisconsin indicating that filings of civil documents can either be filed using "either a restricted to case participant" or "sealed and only available to the court designation."  Criminal filings will now be sealed documents only available to the court.  Perhaps this is an attempt by the Eastern District to keep prying eyes away from the online community -- a way to keep lawsuits not of state or national interest "private" until there are actual court hearings on matters -- which any member of the public is welcome to attend, but no one ever really does except for the really big lawsuits and prosecutions you see in the news.

(I say private because no one has much interest in the majority of cases filed with the courts, but court documents, unless ordered by the court, are available for copy and inspection by the public).

Time will tell.  Maybe it is a good thing in this digital age when people post lots of personal stuff or just stuff on the internet.  (I am no exception).

I think what the article touches upon, but does not really flush out, is the fact that when an online community finds lawsuit information out, they tend to devour it and spread it, and as they say, it "becomes viral."  Once lawsuits were a story to develop and play out before a judge and jury, if need be.  Otherwise they were more private affairs between attorneys and clients.

Essentially, e-filing can allow a lawsuit to be tried to the public before a defendant can even respond.  Kind of like Nancy Grace calling every person a criminal or a rapist or kidnapper or a murderer on her show, even before an investigation into a suspect and even before all the evidence is adduced at trial.

According to people like her, there is no "innocent until proven guilty."  Her motto, and many people who watch programming like that is "guilty, unless found innocent, but then still guilty."

Maybe increased e-filing, where no information is allowed to be protected or redacted, renders the same logic for the public, and ultimately, the possible jurors in the trial.  In the civil arena, it would be "negligent" from the minute the lawsuit is filed, including if there is a settlement, confidential or not.  That is, of course, unless there is a trial and the jury finds "not negligent."

Monday, February 23, 2015

When Bad Things Happen to Patients ... And Discouraging Lawsuits

It has been a while since my last post, so, hello again reader (or hopefully and optimistically, readers).

I would like to continue on with my posts regarding medical malpractice lawsuits.  In the most recent article I read, the publisher again contradicts itself about "exploding" medical malpractice lawsuits.  However, the article then says "fewer than 10% of those patients and families will actually file a malpractice lawsuit."  The reason:  the author hypothesizes that it is the patient's or families perception of the doctor or staff.  Essentially, if they like the doctor or staff, or have been with a particular doctor for a number of years, they will not sue no matter how negligent the doctor was or how injured the person is.  Interesting theory.  Maybe has some weight.

Though, the article then gets into, as I have touched upon before, the real reason, I believe, for the lack of lawsuits against doctors.  Simply, unless the injury is significant, it is cost prohibitive to bring a lawsuit.  As a defense attorney notes in the article, "if the case is meritorious but the recovery is likely to be small, they [injured party] don't sue because they can't find a lawyer willing to take the case."

Exactly.  Injured people have essentially been legislated out of otherwise viable claims.  Politicians case be smart, and those drafting their agendas as well.  They have not "closed" the doors to justice - an injured person's day in court.  Instead, they make it cost an incredible sum for an injured person to pursue a case, which effects a lawyer's ability to take the case, thus ensuring no lawsuit.  It is a prohibition on access to justice -- just not an overt one.

These articles from the Milwaukee Journal Sentinel are enlightening in regards to the amount of money the Wisconsin Injured Patients and Families Fund has to defend lawsuits, and to the problems faced by injured parties, along with a complete lack of access to the courts, in Wisconsin.

http://www.jsonline.com/watchdog/watchdogreports/medical-mediation-doesnt-always-provide-closure-for-families-b99324156z1-270618031.html


http://www.jsonline.com/business/medical-malpractice-laws-rulings-leave-family-searching-after-dads-death-b99379764z1-281241261.html

http://www.jsonline.com/news/opinion/wisconsin-patients-wait-as-money-in-compensation-fund-grows-b99416878z1-287400801.html

Or this article that show Governor Walker's attempt to essentially shape the Wisconsin Supreme Court to do his biding.

http://www.prwatch.org/news/2015/02/12729/walker-moves-cut-pay-wisconsin-chief-justice-budget-bill


And, this is not just an access to justice for medical malpractice problem.  Legislation is coming from all angles to block as much access as possible for injured parties.  Binding, forced arbitration, more caps on damages, re-working Wisconsin's Worker's Compensation system which has been in place since the early 1900's and both parties agree does not need to be changed.

So, the question then is, as more and more laws to help injured people get changed to protect doctors, corporations, cities, etc., and not the injured person, when bad things happen to people, how is anyone going to help them?