What do you get when a controversial, tort-reforming, conservative member of the legal establishment files a One Million Dollar personal injury lawsuit? You get a lot of what is the best and the worst about the world of weblogging — first come both kneejerk attacks and blindly loyal rebuttals (mostly in Comment sections, from anonymous and angry ideologues, reacting to blurbs done without much reading or reflection), but eventually the adults take over and produce thoughtful responses on the law (substantive and procedural), the policy and ethics of the situation. This is how Eric Turkewitz of the New York Personal Injury Law Blog describes the less than edifying portion of the response to Judge Robert H. Bork’s complaint against the Yale Club:
“Due to his prior advocacy for tort reform, he has been lampooned, mocked and otherwise pilloried for having engaged in excessive claims over what appears to be a routine trip-and-fall action at the Yale Club.”
The case is Bork v. Yale Club, 07-cv-4826, U.S. District Court, Southern District of New York (Manhattan). The WSJ Law Blog has posted the complaint, and has a discussion on June 7, 2007, which explains that the now 80-year-old Bork “was at the Yale Club last June to speak at an event sponsored by The New Criterion, a monthly review of the arts and intellectual life. According to the suit filed in federal court in Manhattan, the club failed to provide steps and a handrail to climb onto the dais. Bork fell backward as he was attempting to climb the dais, striking his leg on the stage and his head on a heat register, the suit says” — resulting in severe injuries that required lengthy rehab. Learn more about it in Turkewitz’s earlier post “Robert Bork Brings Trip/Fall Suit for Over $1M, Plus Punitive Damages And Legal Fees,” which links to many other web sources (and see Overlawyered.com and LegalBlog Watch; plus the updated account from Bloomberg News).
Bork, is of course, the namesake of the verb “to bork,” due to the rejection by the U.S. Senate in 1987 of his nomination by Pres. Ronald Reagan to the U.S. Supreme Court. (see The Columbia Encyclopedia, Sixth Ed.) As explained at Worthless Word of the Day, bork is “[an eponym from Judge Robert Bork] U.S. political slang to defame or vilify (a person) systematically, esp. in the mass media, usu. with the aim of preventing his or her appointment to public office; to obstruct or thwart (a person) in this way.”
Today’s post at NY Personal Injury Law Blog eschews “mockery or political criticism” and instead asks what Bork should do next, “given the error-riddled Complaint that has contributed to the scorn.” (“What Should Bork Do Now?,” June 11, 2007) Eric makes many good points, including the dropping of the silly punitive damages claim, and the reminer that “The New York State Trial Lawyers Association has over 4,500 lawyers. Hire someone that knows what they are doing with this area of law, not a white collar criminal defense or securities lawyer that can’t draft a simple trip and fall complaint. And remember also that you don’t need a BigLaw ‘litigator’ that probably hasn’t tried a case in years. And you do need someone that knows how to move a case efficiently.”
Prof. Yabut also wants to remind Judge Bork — since the NYS Trial Lawyers almost certainly won’t tell him — to brush up on the Injured Consumers’ Bill of Rights for Contingency Fees (you can negotiate and needn’t accept the local standard contingency percentage), and to check out prior posts here at f/k/a, such as this and that.
Meanwhile, you’ll find a series of posts about the Bork lawsuit by several of the contributors at the Volokh Conspiracy. In Bork and the Barbary Pirates, David Bernstein has some choice quotes from Bork in 1995, when he attacked “Our expensive, capricious and unpredictable civil justice systems.” Berstein concludes:
“I don’t think that someone with such views is in any way barred morally or otherwise from using the tort system to redress an injury, but as a prominent attorney himself, Bork could instruct his attorneys not to assert ‘far-fetched legal theories’ (e.g., punitive damages for a routine negligence case), or to request a ‘lottery-like windfall’ (over $1 million in damages).
Bernstein’s co-Conspirator Ilya Somin then looks at The Ethics of Benefiting From Policies that You Oppose, with the “The bottom line: Not all people who benefit from policies they oppose are inconsistent or hypocritical. It depends on the policy in question, and on the reasons for their opposition to it.” Prof. Eugene Volokh also weighs in on the apparent weakness of some of Judge Bork’s claims. Along with the VC posts, you will find both thoughtful and sadly inane comments from the peanut gallery.
The haiku fan in me can’t help but note that Robert H. Bork’s middle initial stands for Heron. That’s not a word that I have often seen as a name — at least not for a person, as opposed to a distinguished haiku journal. It would be interesting if, in addition to our shared interest in antitrust law, Judge Bork’s name led him to appreciate haiku and senryu. Mention of haiku reminds me that I had originally intended to make this a quick posting today. My plan was to tell you that summer “officially” started for me on Saturday evening, when the season’s first swarm of mosquitos found me on my front porch and chased me (and my copy of Richard Dawkins’ The God Delusion) indoors. Then, I would merely type up a batch of mosquito-related poems, post them, and get back to some serious horizontal punditry. Judge Bork’s travails soaked up a lot of very good naptime this afternoon, but I’m not yet cranky enough to deprive my readers of their haikai [nor to forget to point you to Blawg Revew #112 at Justia]. Without further borkification, I beg you to enjoy some pesky offerings from f/k/a‘s Honored Guest Poets:
porch dinner
a mosquito feasts
on my date
……. by Yu Chang – Upstate Dim Sum (2001/II)
getting drunk
on my arm
the tavern mosquitos
backyard moon
mosquitos
rush the poem
……. by David G. Lanoue – from Haiku Guy
Mosquito netting
rises and falls —
the clarity of dusk
…….. by Rebecca Lilly – Mainichi News (Aug. 2006)
short flight
hungry mosquitos
front porch and back
hand-in-hand
until
the mosquito mugging
…………………………….. by dagosan
see the related haiga first posted at MagnaPoets: Japanese Form (May 24, 2007)
photo: Arthur Giacalone
I entrust my home
for the night
to mosquito-eating bats
curling to sleep–
in the mosquito-netted window
a sickle moon
……….. by Kobayashi Issa, translated by David G. Lanoue
dozing off– 
the soft drone
of mosquito flutter
…………………….. by jim kacian from Chincoteague (Red Moon Press, 2000)