The settlement terms were undisclosed, so little is known about the lawsuit other than those pleadings filed with the Court. However, a review of the complaint filed by Judge Bork's attorneys at Gibson, Dunn & Crutcher--who are typically defense counsel and presumably represented Bork because of his high profile--reveals two absolute truths about the case: (1) Regardless of whether the Yale Club was liable for Judge Bork's injuries, Judge Bork was seriously injured and required significant medical care to address his injuries; and (2) Judge Bork's lawsuit embodies many of the tactics and strategies that Judge Bork decried in his tort reform efforts.

Bork suffered a large hematoma, or swelling of blood, in his lower left leg as a result of the fall and the hematoma eventually burst, according to the lawsuit. The injury required surgery and months of physical therapy, according to the complaint. He claims to have suffered “excruciating pain” as a result of the injury and continues to walk with a limp.

Turning to his lawsuit--and how it meshes with his tort reform beliefs--Judge Bork's claims and tactics run completely counter to a number of his tort reform proposals and arguments. The complaint, which is nothing more than a series of allegations and prayers for money that Bork hopes will be proven prior to or at trial, positions itself for an award of punitive damages. Bork alleges, essentially, that the Yale Club actively, and with gross disregard for his safety, constructed a path to the dais that the Yale Club knew would likely result in Bork's severe injuries.

Punitive damages are extremely rare in a typical slip and fall case--which Mr. Bork's case most certain is. In addition, punitive damage awards are one of tort reform's, and Mr. Bork's, primary targets.

In a 2002 article published in the Harvard Journal of Law and Public Policy, Judge Bork criticized modern state tort law, stating that the Framers could have never envisioned the current legal system, and therefore supporting Congress' power to limit modern tort system:

State tort law today is different in kind from the state tort law known to the generation of the Framers. The present tort system poses dangers to interstate commerce not unlike those faced under the Articles of Confederation. Even if Congress would not, in 1789, have had the power to displace state tort law, the nature of the problem has changed so dramatically as to bring the problem within the scope of the power granted to Congress. Accordingly, proposals, such as placing limits or caps on punitive damages, or eliminating joint or strict liability, which may once have been clearly understood as beyond Congress's power, may now be constitutionally appropriate.(Emphasis added).

Judge Bork further criticized plaintiffs who proceed with contentious lawsuits--as all slip and fall lawsuits are--against property owners in a 1995 Washington Times opinion article:

Today's merchant enters the marketplace with trepidation -- anticipating from the civil justice system the treatment that his ancestors experienced with the Barbary pirates.

The 1995 Bork would have viewed the 2007 Bork as a pirate attempting to steal money from the Yale Club through the "civil justice lottery" using tactics to attempt to leverage a higher than usual settlement by alleging--with little or no basis--punitive damages. The 1995 Bork might also believe the 2007 Bork was barred by the assumption of the risk doctrine due to the obviousness of the alleged danger, an unreasonably high rise from the platform to the dais. Ted Frank, another tort reform advocate and a writer at Overlawyered.com wrote as much upon reading Judge Bork's complaint in June 2007:

I sympathize with Judge Bork's serious injuries, but it's beyond me what his lawyers are thinking in asking for punitive damages. And if any danger is open and obvious such that there is an assumption of the risk, surely the absence of stairs to reach a lectern on a dais is—especially if the dais is of the "unreasonable" height that the complaint alleges it to be.

Bear in mind that, under California law, if Judge Bork somehow appreciated the increased danger of the path to the dais before he attempted to negotiate it, he would not be barred by the assumption of risk doctrine from recovering for his injuries. Instead, to the extent that he was negligent for his own conduct, his recovery would be reduced by his share, compared to Yale Club's share, of the responsibility for causing his injuries.

We are certainly not saying that Judge Bork was not entitled to proceed with his lawsuit or to recover money for his injuries. Certainly he was. However, it is very important to remember that when this tort-reformer felt the need to bring a personal injury lawsuit, he did so using hyper-aggressive and presumptively baseless tactics to bolster a prayer for punitive damages.

The 1995 Bork would have held up 2007 Bork's lawsuit as an example of the tort system run awry.

DOI has insisted that insurers adhere to the key rate factors in determining the appropriate risk that an insured will be involved in an automobile accident: a person's driving record, the number of years behind the wheel, and the number of miles driven per year.

"It was very clear that they were charging too much," said Douglas Heller, executive director of the Foundation for Taxpayer & Consumer Rights, the Santa Monica-based advocacy group that successfully championed Proposition 103 in 1988. The voter-approved initiative turned insurance into a highly regulated business, similar to power companies and other public utilities.

DOI is also attacking Allstate for excessive charges for homeowners' insurance, which provide resources to pay premises liability claims.

It is anticipated that the rate ruling will force other insurers to reduce their rates as well.

Unfortunately, our office usually typically has the opportunity to advise clients of their proper insurance needs ONLY after they've been in an accident and it's clear to them they were under-insured. So, please consider this to be a preemptive public safety announcement to all San Diegans.

1. Do Not Purchase Minimum Insurance. The minimum amount of insurance coverage necessary to drive a car in California is bodily injury coverage of $15K/$30K. This means that, in the event that you negligently cause an accident, your insurance carrier will pay all medical bills, lost wages, and pain and suffering for those you injured up to $15K per person or $30K per accident. If their damages exceed this amount, then you could be personally responsible for the balance. Obviously $15K isn't much money and automobile accident claims can easily exceed this amount, particularly where there is a claim for wrongful death. It is important that you purchase as much bodily injury coverage as you can afford. This is not only important to protect your assets, but, as the next section will make clear, so that you can maximize your under-insured/uninsured motorist coverage.

2. Purchase As Much UM/UIM Insurance Coverage As You Can. Ok, you're responsible. You purchased as much bodily injury coverage as you can. But the other guy, just assume that he is not responsible and is carrying only the minimum coverage--or no coverage at all! That is why you need to maximize your uninsured/under-insured motorist coverage (UM/UIM). UM/UIM allows you to turn to your own insurance to pay for your injuries which exceed the limits of the other driver's insurance policy. However, you can only purchase UM/UIM coverage up to the limits of your bodily injury coverage. So, if your bodily injury coverage is $100K, that is the most UM/UIM coverage you can purchase. UM/UIM is one of the cheapest components of an auto insurance policy. There is no excuse not to have it.

4. Purchase Property Damage Coverage At Least Equal to the Value of Your Vehicle. Don't rely on the other driver's insurance company to pay for your property damage, or to offer the fair market value for your vehicle. They often don't. In times like that, it is essential to have an insurance policy you can turn to to pay for your own property damage. Your insurance company will immediately pay for your property damage and then go after the other driver's insurance for reimbursement. Without this coverage, you are at the mercy of what the other driver's insurance will offer you--if they offer you anything at all.

5. Rental Car Coverage. If you car is damaged, you want to have access to a vehicle, right? Get this coverage. However, if you do have to rent a car following an accident, NEVER EVER purchase insurance from the rental company. You're already covered under your own insurance and the rental car coverage does not reimburse you for purchasing other insurance.

6. If You Have a New Car, Look Into Gap Insurance. Say you buy a brand new car for $30,000. After you get off the lot, the value of the vehicle has already dropped to $28,000 and is dropping fast as the car is no longer new and is becoming more and more used. Well, what happens if your car is totalled just a week later? You will be paid $28,000 for your car, but you will owe the $30,000 to a finance company. Without gap insurance, you are responsible for the $2,000 shortfall. With gap insurance, the insurance company pays for this shortfall.

Hope this all helps. Pay particular attention to items 1 & 2. They are the most crucial of the six.

And drive safely.

Ms. Wilson was originally awarded $370 Million dollars by a San Diego Jury. The verdict was later reduced by the trial court to $102 Million and then to $82.6 Million by the Court of Appeal. However, when given the opportunity to reduce this verdict again, the Court of Appeal declined.

The Buell-Wilson v. Ford Motor Co. is important for several reasons. First, it was the first time that Ford was held responsible for injuries resulting from a Ford Explorer roll-over auto accident. During the trial, Ms. Buell-Wilson's attorneys effectively proved that Ford was aware that the Explorer was dangerously unstable and prone to oversteer leading to rollovers. Ford also knew that in the event of a roll-over, the Explorer's roof was not strong enough to prevent crush. The cost of preventing rollover roof crushes was minimal, yet Ford refused to make he necessary changes. This is oddly reminiscent of prior Ford safety shortcomings; e.g., the Ford Pinto, use of Firestone ATX tires, etc.

Congratulations to Ms. Buell-Wilson. We hope that this latest ruling provides you with peace...after more than a decade of litigation against Ford's lawyers and unlimited bankroll.

UPDATE: Ms. Buell-Wilson is going to continue to wait for justice. Ford has decided to appeal the latest court ruling.

Out of this scandal, Southern Nevadans have discovered a problem that should also concern patients in San Diego--how do patients find out about the doctors treating them?

In California, the state Medical Board does not provide any information about past or pending lawsuits for medical malpractice unless a judgment was entered or settlement reached in excess of $30,000. This makes is it difficult for patients to discovery evidence of poor, although perhaps not negligent, performance by their doctors. Due to the scarlet letter this hangs on the chest of a careless doctor, medical malpractice cases, no matter how legitimate or clear-cut, are litigated tooth and nail through trial.

This is a poor way of sharing information with patients about the doctors treating them. It is believed that 90% of all malpractice claims come from the conduct of 10% of doctors. While these may not be exact figures, they do seem logical. Persons who make mistakes or who cut corners tend to repeat these mistakes over and over. For example, in San Diego, a dentist has been successfully sued four times for substandard care.

If you wish to know more about your doctor's past history, our office recommends that you contact the CMB and ask that they change to a more open system of sharing information.

The contingency fee agreement is the primary manner in which average people can hire attorneys to litigate their interests. Under a contingency fee agreement, the client is able to hire an attorney who will work for them for months or sometimes years at a time without receiving payment for services until the attorney actually obtains a monetary settlement or judgment for the client. The more the attorney recovers for the client, the greater the fee he is entitled to receive. Further, if the attorney does not obtain a monetary recovery, the client does not owe the lawyer anything for the legal services provided.

Without the contingency fee arrangement, clients would be forced to hire attorneys solely by paying for legal services by the hour at rates of anywhere from $200 to $350 per hour, in most cases. Most clients, with legitimate cases, could not afford to hire an attorney under an hourly fee arrangement.

Last, the majority of clients--even those who can afford to pay for legal services at an hourly rate--prefer contingency fee arrangements.

Which makes Oregon Initiative 51 all the more dangerous.

Let me address the "frivolous" lawsuit argument. While I certainly agree that there are "frivolous" lawsuits, they are extremely rare. "Frivolous" lawsuits are, by definition, baseless lawsuits. Most lawsuits that are called "frivolous" are not baseless, but simply cases with difficult liability or damages issues. Clients with difficult cases should be permitted to have their day in court and to prosecute their claims, even if they are not ultimately successful.

Moreover, the business structure of a contingency fee agreement actually helps to keep speculative cases out of the legal system. Everyone wants to be paid for their services; nobody likes to work for free and attorneys are no different. Well, contingency fee attorneys only get paid if and when a recovery is obtained for the client and the amount of compensation is directly related to how much is recovered (how strong the case is). It doesn't take much effort to see that an attorney who represents clients with speculative cases will not be paid as much as an attorney who represents clients with much stronger cases. Therefore, attacking contingency fee lawyers for helping to increase the number of "frivolous" lawsuits (a contention that I dispute) is ridiculous.

Now, let's turn to the "bargain" that the initiative's supporters are trying to provide to Oregonians. Under the initiative, the maximum fee would be capped at 25% for the first $25,000 recovered and 10% thereafter. Considering that the business model for most contingency fee attorneys is 33%, we're talking about a 25% reduction for the first $25,000 and a nearly 70% reduction for any additional money recovered.

This might seem good to some at first blush. I mean, if the attorney must reduce his fees by 70%, that is a direct savings to the client. What's the problem?

The problem is the effect this will have on those clients who have cases with merit, but also difficult issues which will require an attorney to spend a great amount of time to prevail. Those clients will be forced to hire an attorney on an hourly basis, if they can afford to do so at all. If they cannot afford to hire an attorney, the value of that client's case will be low or nothing without legal representation.

And this turns us to our last argument: the initiative makes it harder for injury victims to locate and hire an attorney by interfering with the injury victim's right to contract. On the flipside, the initiative does not restrict the ability of the insurance companies (who pay for the legal defense) to hire their attorneys. Supporters claim that the fee cap helps to protect against "frivolous" lawsuits, but apparently they are not concerned about capping insurance defense legal fees based upon the frivolous defenses that insurance companies and their attorneys come up with to refuse payment of reasonable settlements.

We are keeping an eye on Oregon Initiative 51 and the possible introduction of a similar initiative in California in the future. If it does get introduced, remember what you read hear and remember that the contingency fee is your key to the courthouse. Don't allow insurance companies to limit your right to find an attorney of your choice.

So, it's ironic that The Manhattan Institute's PointofLaw website recently published a story describing the findings of a legal fees study performed by Israeli behavioral economists Eyal Zamir and Ilana Ritov. The study, titled, "Neither Saints nor Devils: A Behavioral Analysis of Attorneys' Contingent Fees" found that--contrary to the beliefs of tort-reformers--the vast majority of litigation clients prefer contingency fee agreements to the traditional billable hour fee agreement.

The study reaches a number of conclusions, but the key conclusion is that clients are risk averse. They prefer a fee arrangement where the attorney shares the risk of litigation with them, even if that means the client ends up paying more in attorneys fees for that service. The attractiveness of the contingency fee agreement is that if the client wins, he will recover monetary damages, and, if he does not win, he does not owe any money in attorneys fees ("heads I win, tails let's call it even).

Think about the utility and value of the contingency fee agreement the next time you hear some tort-reform argument, or, worse yet, a tort-reform initiative seeking to ban the contingency fee agreement.

Danielle Coziahr was a third grade teacher at Silver Wing Elementary School in Otay Mesa from 2004-06. She was "probationary", meaning that she had not obtained tenure at her position. Although the Chula Vista School District can generally choose not to renew teaching contracts for any reason, a jury decided that the real reason Ms. Coziahr was let go was because she is a woman and she was pregnant.

The jury awarded Coziahr $1,012,720 with the largest portion being future economic loss due to future lost wages. Coziahr presented evidence that she had been effectively blackballed and could not obtain another teaching position.

Ms. Coziahr provided an interview to local media. The extent of the discrimination that she suffered was inexcusable and Ms. Coziahr rightly feels justified.