Wampum

Technical note

Today's electrical storm caused the Mid Maine North Deering DSLAM to experience difficulties. From a wampum reader perspective, loading was very, very slow. From a packet reader perspective, bandwidth was unaffected for small packets, and severely degraded for large packets. The DSLAM degraded at about 5pm EDT and when you can read this, the service degredation event is over.

Final pre-Primary beg-a-thon

(I've changed the date on this to bump it up to the top - over the weekend, we had a nice increase in contributions, but today has been exceptionally quiet. So I'm jumping in front of my dear partner and moving this to the top of the blog. If anyone would like to see what happens when we spend money on lit pieces, particularly those which compare our positions to our opponent, take a look at the latest pictures on the campaign blog.)

I've now hit the home stretch, the last ten days before the election. GOTV plans are being finalized, dozens of volunteers being put in position, and Jim Capozzola has purchased his airplane tickets!

It's also time for our final push in the fundraising department. Since my opponent is publicly financed, I pulled my online fundraising efforts a month ago, voluntarily determined not to overstep his Clean Elections distribution. However, it's now become quite clear by his spending that he's exceeded the public financing limits.

So I've put back up the "Contribute" link, hoping, between online and in person contributions, to close the spending gap before Election Day on June 8th. I know that everyone is being asked to give money in a million different directions, and all Democratic causes are worthy. But here's my pitch.

I'm am the only Democratic woman running in a city with ten men, nine Democrats and one Green, representing us in Augusta. My opponent has actively sought out the "Old Boy Network" vote, with all of his published endorsements coming from white male politicians, most of whom are, by their own admission, repaying favors, e.g., "he endorsed me in my primary against so-and-so." On the other hand, I have refused endorsements by other Democrats, believing that such internecine behavior in a Primary only leads to post-election hard feelings.

I have instead sought the endorsements of Progressive organizations and labor, and recently received the much coveted endorsement of the Dirigo Alliance, the coalition of Maine environmental, social justice and labor organizations, including the Sierra Club, Maine Council of Senior Citizens, NOW, the Maine People's Alliance, etc. I've also worked hard to strengthen the foundations of the Democratic Party by coordinating our local efforts in the Portland Caucus in February and last week's State Democratic Convention, as well as the day-to-day activities of the Democratic city committee. In comparison, my opponent participated in neither event, and in fact, hasn't been involved in the Portland Democrat Party in the past five years.

This past week, I attended the bi-monthly meeting of the newly formed Portland Chapter of the League of Pissed-off Voters, where the invited speaker George Christie, Executive Director of the Dirigo Alliance, made his pitch for the 18 to 35 age group represented by the LoPOVs to put their votes, and efforts, behind my campaign. The professed owner's manual of the League is How to Get Stupid, White Men Out of Office, co-edited by Adrienne Maree Brown and William Upski Wimsatt. So if you'd like to contribute to that effort in the most literal sense, I'd be most appreciative if you'd send some much needed turkee to this relatively intelligent, Abenaki woman to get her into office, versus the alternative described by the aforementioned book.

And if anyone is in the general vicinity of Portland, Maine and would like to physically help out in the next ten days, please contact my field director, Tom Elko at elko0003@remove.umn.edu (remove the "remove" to use the addy) or me at the address on the sidebar.

Post-publish addendum: I want to send my warmest heartfelt thanks to Julia of Sisyphus Shrugged, for all her generous graphics work, including my star-ladened logo. The first thing many people who meet me for the first time now mention are my signs, also designed by Julia. As soon as Maine blueberry season heats up, she and her family are getting an entire bushell as a thank you.

[Technical note bumped up again, to take precedence over a comma, which should not exist, according to the post that contains it, and exults it. Eric]

Converted

After nearly twenty-five years together, my wife and I have worked out most of our differences. I put up with her being late without (too much) complaint. She has learned that questions posed before the second cup of coffee will either be ignored or answered with severe sarcasm. We have reached agreement on finances, child rearing, and politics.

Until recently, one issue of great import has divided us. That issue concerns the use of the Oxford comma. When listing a group of three or more items, does a comma go after the second item and before the “and”? Is it healthy to “eat, drink, and be merry” or is it better to “eat, drink and be merry?”

The issue of the Oxford comma has recently been addressed by Brad DeLong, Angry Bear, and others.

My wife has always taken a simple position. The Oxford comma is grammatically correct, she says, and must always be used. I, on the other hand, have taken a more nuanced approach. I do not want useless punctuation cluttering up my prose. My position has been to use the Oxford comma if, but only if, its use clears up an ambiguity.

Deb brings strong credentials to the debate having spent years proofreading and copy editing an academic journal. I bring only a tradition of legal writing to the debate.

Today, we resolved our decades long dispute. I have been converted. Did she convince me through logic or by use of examples of ambiguity? No, she just appealed to higher authority.

Pointing me to this post, she simply said, “look, dear, Jim Capazzola is in favor of using the comma and as you well know, Jim is never wrong about such things.”

That is hard to argue against. She is right. From now on, whether I write about law, politics, or autism, I will include the comma.

Now if she could just understand that the NBA playoffs take priority over a movie regardless of how many Oscars the movie won …..

Taxing Pixie Dust

I previously expressed doubt that Governor Schwarzenegger’s proposed 75% tax on punitive damages would realize the revenue stream envisioned.

The New York Times notes that the Governor estimates that his proposal would generate about $450 million per year in revenue for the state. Where, I wondered, did that estimate come from?

The Times reports:

It is based on a study prepared by two scholars at the McGeorge School of Law in Sacramento. They found that juries had awarded punitive damages in about 500 California cases in the decade ending in 2000, for a total of $6.4 billion, or about $640 million a year.

A little Googling located the original report by Drs. Kelso and Kelso here (PDF).

Kelso and Kelso looked at punitive damage awards in California for the period of 1991 through 2000. Because no one collects information on all such awards, Kelso and Kelso relied on the self reporting of verdicts contained in a publication known as the California Jury Verdict Reporter.

The reliance on self reports means that some verdicts awarding punitive damages are not included in the study. I suspect that all large awards are included. It is the rare plaintiff’s attorney who having won a large punitive damage award would fail to garner the publicity and prestige of having it reported.

The study also failed to account for reductions in punitive damages awards by the trial court after verdict or by appeals courts. As we shall see, that is an important limitation that causes the study to overstate the amount of punitive damages actually paid.

Kelso and Kelso found that during the decade studied there were 489 punitive damage awards in California. The total amount of punitive damages awarded by the jury in those cases was about $6.4 billion.

Governor Schwarzenegger's estimate of a $450 million per year revenue stream results from taking the $6.4 billion dollar figure for the decade, dividing it by ten to get a yearly figure of $640 million and assuming that the state’s annul revenue will be 75% of that figure.

If the Governor had read the entire report (gotta check those footnotes), he would have discovered that the figure he used for his revenue estimate is skewed dramatically by one result. In the case of Anderson vs. General Motors, the jury awarded $4.2 billion in punitive damages. Kelso and Kelso included the $4.2 billion figure in their report. While including that figure, Kelso and Kelso note that the trial court reduced the punitive damage figure to $1.2 billion before entering judgment.

Three billion dollars of the $6.4 billion in punitive damages on which the governor based his revenue estimates were eliminated by the trial court and will never be paid. About half of the total amount on which the Governor is planning to impose a 75% tax is a fiction. Does anyone still believes that the Governor’s proposal will generate $450 million a year in revenue for the state?

I do not know if the error was made through mendacity or neglect but it is a pretty serious error if California is making budget plans based on the Governor’s estimate. Taxing pixie dust does not generate revenue for the state.

To The Autism Community

Several years ago, when I first became interested in autism, the Federal government provided about $5 million per year for autism research. This year, it will provide more than $75 million. What has caused that 1,500% increase?

There are a number of factors, of course. The increase in incidence of autism has overloaded the education system and caused alarm in the public health community. Greater organization of parents and other persons interested in autism has helped. Celebrities such as Doug Flutie have made a contribution. The Clinton administration was amenable to the arguments for increased funding. All of those factors helped increase the funding but they are not the whole story.

One factor that is often overlooked is that one member of the House of Representatives was relentless in his efforts to increase autism funding, That person, of course, is Republican Representative Dan Burton of Indiana.

Rep. Burton and I disagree about most every issue. He was a leader of the anti-Clinton forces in the House (he once called President Clinton a “scumbag” on national television. Can you imagine the reaction of the right wing and its media cohorts if Nancy Pelosi had called George Bush a “scumbag” instead of simply stating that he is incompetent as President?).

Despite my differences with Burton, I have to admire his work on autism issues. He has been a tireless advocate for the autism community. The increases in autism funding are due, in no small part, to his determination and skill.

Why has Representative Burton been so good on autism issues? Once again, I am sure there are a lot of reasons but the fact that he has an autistic grandson surely must be at the top of the list.

The lesson of Representative Burton's success at increasing funding for autism research is that having one person in a legislative body who is knowledgeable about autism and who has a deep personal interest in the subject can make a world of difference.

We have the opportunity to help Mary Beth Williams win a seat in the Maine legislature. Mary Beth will not only be a great representative for her district and for all of Maine but her election will guarantee that at least one person who understands autism issues and who cares about those issues will be in the room when decisions about autism policy are made. As the Burton example shows, having one such member in the legislature can make all the difference for the autistic kids of Maine.

Mary Beth has a little over a week until her primary. Her opponent, apparently, has her at a financial disadvantage. It is time for our community, the autism community, to close ranks, step up, and close the gap. Click the link on the right. Make a donation to Mary Beth’s campaign. Make sure that the autistic kids of Maine have a voice in the legislature. Do it now

The Blind Hog

It is hard to always be wrong. While that idea may be expressed in some parts of the country by saying “even a stopped clock is right twice a day,” here in the south we prefer to note that “even a blind hog will occasionally find an acorn or two.” The accuracy of that notion was demonstrated this week.

After the 9/11 attacks, there was an outpouring of support for America and Americans from around the world. When George W. Bush gave his speech to the Joint Session of Congress following the attacks, he promised that we would never forget that support:

And on behalf of the American people, I thank the world for its outpouring of support. America will never forget the sounds of our National Anthem playing at Buckingham Palace, on the streets of Paris, and at Berlin's Brandenburg Gate. (emphasis supplied).

After the dispute between the US and France over the wisdom of invading Iraq, I thought that Mr. Bush was simply wrong, that the French support for America after 9/11 had been forgotten.

After all, the Congressional cafeteria changed over from selling french fries to selling freedom fries. “John Kerry looks French” became a substitute for political discussion and analysis. Folks were talking about boycotting French wines and other products. If I remember correctly, some warbloggers were actually discussing cutting diplomatic relations with France and were wondering if France would launch a military attack on the United States (I do not have the stomach to find the links).

In that environment, I thought that President Bush’s promise not to forget the support of the French after 9/11 had simply been flushed down the memory hole.

I was wrong. President Bush was right. He had found an acorn.

This week, a prominent political figure remembered that the French supported the US in the wake of 9/11:

How did we get from September 12th , 2001, when a leading French newspaper ran a giant headline with the words "We Are All Americans Now" and when we had the good will and empathy of all the world -- to the horror that we all felt in witnessing the pictures of torture in Abu Ghraib…

Yes, it took Al Gore to redeem President Bush’s promise.

Is the First Amendment in Danger?

It has been said that “one is an accident, two is a coincidence, and three is a trend. “ If that is correct then there is a trend among right-wing pundits to contemplate the erosion of First Amendment protection of free speech.

Tony Blankley in the Washington Times contemplates that another terrorist attack could lead courts to uphold restrictions on free speech:

Sedition laws almost surely would be found unconstitutional, currently — although things may change after the next terrorist attack in America.">

That is one example and it might be an accident. Glenn Reynolds, however, suggests that even a minority of Americans could be sufficient to result in abrogation of First Amendment rights:

Freedom of the press, as it exists today (and didn't exist, really, until the 1960s) is unlikely to survive if a majority -- or even a large and angry minority -- of Americans comes to conclude that the press is untrustworthy and unpatriotic.

Those two examples might be a coincidence until we consider the strange case of alleged journalist Cal Thomas. Thomas forthrightly calls for censorship now. When Thomas appeared on a Fox News show, the following exchange occurred:

BURNS: As what we're saying now indicates, there's a tremendous amount of controversy in this country today about the media's role in covering the war in Iraq. And it's reflected in a new Fox News/Opinion Dynamics Poll. Look at this: where are the problems being created? More people think that the problems related to Iraq are being created in the news media than in Iraq, in Washington D.C., or in any of those combined.
Cal, is this a typical blame the messenger syndrome or is there something more at work here?

THOMAS: I think there's part of that. But I'd like to see a debate on whether we should go back to a form of censorship during the process of war itself. To be able to show all of those pictures while it's going on -- the embedding during the war coverage was fine, I thought. But in the aftermath now, with all of these questions being raised, it's a political and election year, I'm not sure that some form of censorship might not be called for.

BURNS: You were -- wait a minute, Cal, you're advocating that?

THOMAS: Yes.

That is three and if the maxim quoted above is correct, we have ourselves a trend.

In a September 20, 2001 speech to a Joint Session of Congress, President Bush said:

Americans are asking, why do they hate us? … They hate our freedoms -- our freedom of religion, our freedom of speech, our freedom to vote and assemble and disagree with each other.

It would be ironic if, out of a misguided desire to assist in winning the war, we lost those very freedoms.

How can the trend be stopped? That is an easy one. We elect John Kerry as President and elect Democratic majorities in both houses of Congress. In that event, how likely is that Cal Thomas would favor censoring news harmful to a Kerry administration?

Choosing To Be Rich

Money Magazine’s Armchair Millionaire, Lewis Schiff is asked how much money does it take to be rich:

Dear Armchair Millionaire: My best friend and I have a friendly disagreement about what it means to be rich. He says that a million bucks would make someone rich, but I think it would take much more than that. How much money do you think someone needs to really be rich? -- Don in D.C.

The true definition of rich is the having the ability to purchase the things you want. The first part of that definition involves having income or assets. That is the portion the definition that is the focus of question to Schiff. The other half of the equation, and equally important, is controlling what you want.

Assuming that you have a reasonable income, you can choose to borrow the maximum for which you qualify and buy a McMansion or even the real thing. You can choose to buy or lease a new luxury car every couple of years. You can choose to frequent the most fashionable and expensive restaurants. Or you can choose to be rich. It really is a choice.

Recently, I attended a legal seminar. At lunch, I lost the lottery and was seated between two twenty-something lawyers working as associates a large firms. They were newbies (a couple of years of out law school) and were bemoaning the difficulty of making ends meet on low six figure salaries. Having been an associate in a big firm many years ago, I have heard many such conversations.

Soon, the conversation turned to cars and I was forced to listen to a discussion of the relative merits of the Lexus SUV versus the Mercedes SUV. After twenty minutes of talking across me, one of the lawyers asked my opinion of whether they should lease the $76,000 Mercedes or $64,000 Lexus.

I was in the unusual position of momentarily being at a loss for words. I finally told them that I was a fan of the 1989 Taurus, which is what I still drive. You see, I prefer being rich.

Taxing Punitive Damages

Governor Schwarzenegger of California has proposed taxing punitive damage awards by having 75% of such awards go to the state instead of the plaintiff.

The Governor has suggested that the proposal could raise $450 million per year for the state.

I have no major objection to having a portion of punitive damages go to the state. The purpose of punitive damages is to punish a wrong-doer and to deter future wrongful conduct. Punitive damages do not exist to compensate the plaintiff and, as a result, allowing all of such damages to flow to the plaintiff (and plaintiff’s counsel) does result in a windfall.

I would object to the state taking 100% of punitive damages awards as it would eliminate all incentive for the plaintiff to bring actions that deter wrongful behavior. Just as a government whistleblower gets a windfall of 10% of the amounts saved by exposing fraud, the plaintiff should have an incentive to deter wrongful conduct. Deterring wrongful behavior is a social good.

That said, I think that Schwarzenegger’s estimate of the state collecting $450 million per year from the proposal is wildly optimistic.

I have some experience with this issue as Georgia has a similar provision applicable to product liability cases. Under Georgia statute 51-12-5.1, if an award of punitive damages is made in a product liability case,

Seventy-five percent of any amounts awarded under this subsection as punitive damages, less a proportionate part of the costs of litigation, including reasonable attorney´s fees, all as determined by the trial judge, shall be paid into the treasury of the state through the Office of Treasury and Fiscal Services.

That provision has been in effect in Georgia since 1997.

I know for a fact that the amount collected by the State of Georgia under that provision from my cases has been exactly zero. Inquiry to some of my friends who try product cases in Georgia also failed to turn up a single dollar ever paid to the state under the punitive damages provision. To see if our experience was common, I called the Georgia Office of Treasury and Fiscal Services to ask how much had been paid to Georgia under that provision. After locating the right person to speak to, the official stated that he could not recall any money having ever been paid to the state under the punitive damages provision.

Georgia’s punitive damage tax in products liability cases has resulted in little or no funds being collected by the state. It is my understanding that the California proposal will apply to all awards of punitive damages and not only to products cases. Nonetheless, I suspect that little money will be collected by the State for two reasons.

First, at least in Georgia, punitive damages are very hard to get. There are a myriad of protections built into the system to make it hard to get punitive damages.

For instance, punitive damages are not recoverable in any contract case, regardless of the egregiousness of the conduct, and are not available in some types of tort cases (such as actions for conversion). Under Georgia law, in products liability cases, the defendant can only be liable for punitive damages only once per defect. If punitive damages have been awarded against that defendant for the same product defect in some other case, a claim for punitive damages is not available to the plaintiff.

Secondly, even in tort cases in which the punitive damages are nominally available, simple negligence will not support an award of such damages. Georgia allows punitive damages only in cases in which the defendant’s conduct shows:

willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences.

Carelessly running a red light or leaving a clamp in a person during surgery will not support an award of punitive damages. Driving or performing surgery under the influence of drugs or alcohol would.

Third, the standard of proof is higher for an award of punitive damages than for an award of compensatory damages. Compensatory damages must be proved by a preponderance of the evidence. For the non-lawyers in the audience, that means “more likely than not.” Evidence to support an award of punitive damages requires “clear and convincing evidence,” a standard that is somewhere in between a preponderance of the evidence and the “beyond reasonable doubt” standard of criminal cases.

Fourth, in Georgia, the proceeding are bifurcated so that the jury is not permitted to hear evidence on the amount of punitive damages until after it has decided that such an award is justified.

At the end of the trial, but before evidence on the amount of punitive damages is presented, the jury retires to deliberate on the issues of whether the plaintiff is entitled to recover compensatory damages and the amount of such compensatory damages. The verdict form also asks the jury whether or not an award of punitive damages is justified.

The jury gets to go home unless it checks the box saying that punitive damages are justified. If they do check that box, they get to go back to the courtroom to hear the lawyers present additional evidence.

After a long hard trial, the jury (none of whom wanted to be there in the first place) can either decide to hear lawyers talk some more or can decide to go home. It takes a very compelling case to convince a weary group of 12 to request that the trial be extended.

Finally, even if the plaintiff meets all of those hurdles, Georgia limits the amount of punitive damages to $250,000 except in product liability cases, cases in which the defendant had the specific intent to harm or cases in which the defendant was under the influence of drugs or alcohol. In any event the Supreme Court frowns (pdf) upon awards of punitive damages exceeding 10 times the amount of compensatory damages. For more on that Supreme Court decision see Like a Good Neighbor at PLA.

All in all, it is difficult to get an award of punitive damages. For folks who think that that there are a lot of large punitive damages in frivolous cases, you are mistaken. There may be a few such cases out there but especially since the rise of Daubert and its state court progeny, I haven’t seen any.

As I understand the California proposal, it applies to all punitive damage claims and not to just product liability cases. As such, it will no doubt raise more revenue than the Georgia experiment (it is hard to go below $0.00).

Nonetheless, I doubt that it will reach its projected revenue because the State will not be present in settlement negotiations.

When the state takes the bulk of any punitive damage award, settlement negotiations are held in the circumstance that a trial may result in the defendant paying an amount greater than the plaintiff will receive. It will not be hard to structure any settlement in such a way to minimize or eliminate the amounts paid to the state.

Under the Georgia statute, the state’s right to recover is triggered by the entry of a judgment. That is not the same thing as the rendering of a verdict. After the verdict and before the entry of judgment, the parties may settle on any terms they see fit.

Take as an example a Georgia products liability case in which the jury returns a verdict for $500,000 in compensatory damages and $250,000 in punitive damages. Under a typical 1/3 contingency arrangement, if that verdict goes to judgment, the position of the interesting parties will be as follows:

The defendant will pay $750,000.

The plaintiff’s lawyer will receive 1/3 of the total award or $250,000 (plus litigation expenses but I will ignore those expenses for the purpose of simplicity).

The plaintiff will receive 2/3 of the compensatory damages or about $333,000 plus 2/3 of ¼ of the punitive damage award or about $42,000 for a total of about $375,000.

The state will receive ¾ of 2/3 of the punitive damage award or about $126,000.

The plaintiff and the defendant may agree to a settlement on diferent terms. Assume they agree to split the State’s $126,000. They could settle for $687,000 in compensatory damages with no punitive damages.

Under that settlment, the position of the parties would be as follows:

The defendant would pay $687,000 thereby saving itself $63,000.

The plaintiff would receive 2/3 of $687,000 or $458,000 increasing his or her take by $83,000.

The plaintiff’s attorney would lose about $21,000 in fees but is obligated to do so as part of the fiduciary relationship between attorney and client.

The state of course would get nothing.

If California thinks that plaintiffs and defendants will pay $450 million in a punitive damage tax that they could just as easily split among themselves, it has not been in many settlement negotiations.

Update:

I mentioned above that I had called the Georgia Treasury Department to determine how much money had been paid to the state pursuant to the punitive damage statute. Today I received an email from Steve Caffarelli, the Assistant Director of Georgia's Office of Treasury and Fiscal Services. Mr. Caffarelli writes:

According to our records, over the last several years we haven’t received any funds pursuant to this statute.

I suspect that $450 million per year is a bit optimistic.

Back … Kinda… Sorta, Too

I apologize for the lack of posts. While MB and Eric are quite properly engaged in the campaign, I should be posting regularly and I have not done so secently.

There are three reasons for that failure. First, there have been medical issues in my family. They appear to have now resolved. I may write about those experiences later, or not, but for now I would just like to note that both the Emory University Hospital and the Children’s Hospital (also at Emory) are superb institutions staffed by highly skilled, caring people. I just hope that my forthcoming dealings with the insurance company are equally successful.

Secondly, I have been distracted by what might be termed career related program activities.

Finally, I have had computer nightmares over the last several months. I had been getting a huge volume of spam as well as infections and decided to install a popular software product to block spam, create a firewall, and protect my computer from viruses. It blocked the spam but had the side effect of also blocking almost all non-spam. In addition, it failed to block infection. I was unable to send email as the program kept locating viruses in the outgoing mail.

A virus prevented me from scanning to clean up the system and prevented me from installing other virus protection software.

I am sure that there was a simple solution to the problem but am equally sure that the solution was beyond my competence. Finally, with some outside expertise, I ripped out the entire software package, was able to load different virus software and to partially run a scan. The new software would crash part way through the scan but by repeating the process many times, I think that I have finally removed all of the infections. Over 1000 files were infected.

Once I cleaned up the system, I received more than 40,000 emails that had been waiting. If you sent me something and I did not respond, I apologize. I probably now have your email buried among thousands of offers to buy Viagra or to make a fortune on EBay.

At any rate, I think that those problems have now resolved. Once I have an opportunity to catch up on the news, I will begin regular postings.