We need loser-pays in court

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The frivolous class-action lawsuit against Wal-Mart by greedy trial lawyers routinely was thrown out by the high court. Here is the opportunity to emulate British law as the Texas trial lawyers stuff their pockets with millions – they will have to pay all court costs of the accused if they lose.

As you know, trial lawyers are the second-biggest contributors to Democratic politicians, and that’s why the rich Democrat-lites in Congress have blocked the states from improving the civil justice system. Many manufacturers have been forced out of business and/or driven offshore partly because of these punitive laws. Never mind the employees. Most of our economic competitors in other countries have a protective law such as “loser pays.”

Why is Texas called the best state for job creation? Are Georgia lawmakers motivated to pursue this plan?

This present hatred of super millionaires by the anti-Wall Street groups during this continuing economic crisis and high unemployment is understandable when they see the excesses among Wall Street insiders, etc. Most people are economically clueless about the capitalist system, and they have been left behind by a flawed education system to understand it.

Remember one historic fact: Downtrodden and clueless people are easily manipulated by a strong leader or dictator to follow a radical and violent path. A strong and educated middle class can keep a country healthy.

Siegfried von Schweinitz

Appling

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carcraft
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carcraft 11/08/11 - 05:06 am
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Dear Local Lawyer, Having

Dear Local Lawyer,
Having been sued in a frivolous lawsuit let me tell you how much fun it was. When the plantiffs high priced New York lawyer didn't get what he wanted in his deposition he threw the plaintiff's records at me and insulted me. Hours of my time, my bosses time and our lawyers time were tied up. The case was settled out of court for a few thousand dollars compared to the million dollars the plaintiff asked for. I doubt the plaintiff got much money after Mr. Hots shot jerk lawyer got his cut for fees and "expenses".
Today we are facing a shortage of generic drugs because some of these drugs are difficult and expensive to produce for a manufacturer. The problems of stupid greed driven lawsuits like I faced further cut the already thin profit margins of the companies. The companies then quite manufacturing the drugs. Unfortunately they don't always tell their competitors when they will stop manufacture. This then leaves a loss of market share of the drugs the company produced. This is partially what is gong on with propofol shortages today. I hope none of your family ever needs one of this type of generic drug during a severe shortage.
I am sure you will be there waiting to help Local Lawyer, with your fees, expenses, court costs and other required items for the client to pay so you can channel a neonate like John Edwards and fulfill your duty to God, America, and your client (oh! lets not forget your pocket book)!!

Techfan
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Techfan 11/08/11 - 06:33 am
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One lawyer, on contingency vs

One lawyer, on contingency vs a roomfull of $200 an hour corporate lawyers and the loser pays? Yeah, right.

shrimp for breakfast
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shrimp for breakfast 11/08/11 - 06:41 am
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Local Lawyer I enjoyed your

Local Lawyer I enjoyed your comment a lot more than I enjoyed the actual letter to the editor.
carcraft not all lawyers are like the one you encountered. In fact local lawyer said he's a trial lawyer and the one in your case sounds like one of those "lets settle out of court" charlatans.
I understand your point about the drug manufacturers but put the blame where it belongs. The pharmacutical companies sound like they should share most of the blame.
Finally LL says he's a republican. Why in the world would you lump him with John Edwards who is a democrat.
You know it's really early in the morning so I caould be all wet.
Nevermind.

Riverman1
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Riverman1 11/08/11 - 07:52 am
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I'm pretty conservative, but

I'm pretty conservative, but I have some problems with "loser pays." First off, even TX has a limit as to what the winner's attorney fees can be. I think I've heard it's $40,000.

Every big company is going to bring in big law firms with unlimited resources totally out of proportion to the lawsuit potential. What happens if a regular guy goes up against Walmart in what should be a $1,000 settlement over a defective product or something yet he faces a Walmart legal team that is charging $40,000 or even more?

In that case, Walmart is the one creating the unrealistic legal fees.

The average guy would NEVER be able to sue anyone with deep pockets.

bjphysics
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bjphysics 11/08/11 - 07:57 am
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LocalLawyer, I agree with

LocalLawyer,

I agree with what you wrote; however, your topography needs work. Paragraph breaks, line breaks between paragraphs, etc. Your current layout is in danger of receiving the dreaded tl;dr.

hounddog
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hounddog 11/08/11 - 08:31 am
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’Most people are economically
Unpublished

’Most people are economically clueless about the capitalist system, and they have been left behind by a flawed education system to understand it.

Remember one historic fact: Downtrodden and clueless people are easily manipulated by a strong leader or dictator to follow a radical and violent path.’
A very good description of Obama supporters.

Bizkit
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Bizkit 11/08/11 - 08:43 am
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As Clint Eastwood would say

As Clint Eastwood would say in his westerns, Spit: even worms gotta eat. hee,hee.

Willow Bailey
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Willow Bailey 11/08/11 - 09:12 am
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LOSER PAYS does not promote

LOSER PAYS does not promote fairness in the justice system unless we attach "loser/lawyer" to it.

carcraft
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carcraft 11/08/11 - 10:02 am
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Shrimp for breakfest- How are

Shrimp for breakfest- How are the drug companies responsible, they are producing a product with a limited market and low profit margin. Litigation can lower the margin even more. Take a look at the propoofol suit in Navada. The only container of drug available was in a volum greater than what the buyer wanted. The buyer violated sterility standards that are standards of practice for the health care industry. Who got sued and who paid the claim? The manufacturer and distributor of propfolol, not the idiots that used it inappropriatly. It is called "the theory of the deep pockets" go after every one no matter how connected to the case and especially the ones with money, wether they did anything wrong or not! http://product-liability.weil.com/uncategorized/nevada-jury-hammers-baxt...

Chillen
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Chillen 11/08/11 - 10:27 am
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The entitlement crowd and the

The entitlement crowd and the lawyers will never willingly go along with a loser-pay system. It means less payola for them. Just like accountants are petrified of a Fair Tax System.

I think the idea has serious merit. We must do something to get our whacked out judicial system under control. Too many people are chipping a tooth on a piece of garlic bread or looking for a bug in their soup so that they can get one big gigantic payday. And the lawyers line up happily to represent them in hopes of a personal gigantic payday.

allhans
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allhans 11/08/11 - 11:01 am
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I agree in principle with

I agree in principle with von Schweinitz..When I see the lawyers on TV encouraging people to sue, it makes me ashamed for them.
And then there are the class-action lawsuits where you are begged to sign up, promises are made and then the money goes only into the pockets of the lawyers.
John Edwards is an example of a man who made himself rich by suing -in his case the medical community. And people defend this stuff... Good Grief!
Even Peanut would know better.

LocalLawyer
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LocalLawyer 11/08/11 - 11:23 am
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It appears the moderators

It appears the moderators took my message down. Thank you ShrimpforBreakfast for your kind words. I am glad you enjoyed my response, and I sincerely hope I helped shed some light on this uninformed opinion.

@Bjphysics, I agree and apologize. I was typing that on my cell phone while trying to get my infant son back to sleep at 1 a.m.

I will not post my entire comment again, for fear of more censorship by the moderator who wouldn't have a job if it were not for free speech. But my point is Mr. von Schweinitz does not understand why the plaintiffs in this class action were dismissed by SCOTUS. The merits of the case were not decided by the Court, only their inability to qualify as a class. His entire tirade is based on a misunderstanding of what the opinion held.

@Chillen, I think many people read about the garlic bread and bug in the soup cases and think that is par for the course. I assure you it is not. As a trial lawyer who does 100% of his work representing people on a contingency basis because they cannot afford a lawyer (or a team of lawyers as Techfan points out), I would decline to represent someone who wanted to sue for a bug in their soup. I cannot name a single trial lawyer in Augusta, or the State of Georgia for that matter, who would take that type of case. Please do not assume that the wild cases you hear about every now and then are an accurate representation of what is going on in America's courts.

We undoubtedly have the finest civil justice system in the world. We should all be grateful for this Country's steadfast commitment to justice, due process of law, fairness, and every person's right to redress a wrong.

Characterizing all trial lawyers as slime balls who are abusing the system is ignorant. Haven't you ever heard it only takes one bad apple to spoil the bunch?

Sean Moores
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Sean Moores 11/08/11 - 11:27 am
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LocalLawyer, check your

LocalLawyer, check your email. I explained why that comment was removed, and offered to either delete the 6 or 7 words that violated our Terms of Service and repost it or let you do it. There was no problem with the opinion you expressed, but our rules apply to everyone who posts here. Feel free to contact me if you need clarification.

LocalLawyer
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LocalLawyer 11/08/11 - 11:31 am
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Thanks, Sean. I will do that.

Thanks, Sean. I will do that. Your response is greatly appreciated.

LocalLawyer
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LocalLawyer 11/08/11 - 11:36 am
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(Reposted and edited to

(Reposted and edited to remove statements that violated AC's policy -posted at 1:11 a.m. by Locallawyer)
I am hesitant to comment on many things publicly, but I cannot restrain myself from correcting you here. Your Letter to the Editor entitled "We need loser pays in-court," may just be the most unorganized and uninformed opinion I have ever read in my life. To be frank, I'm surprised this was even published, as your rant began with Loser-Pay Laws, then moved to political contributions to Democrats (Republicans don't have supporters?), then to Texas job creation (which was largely due to oil, gas, and cheap labor), then to a back-handed slap at Capitalism (I guess), then to a snipe about our education system, and finished with a gripe about OWS, and how their ignorance will lead to socialism or maybe even dictatorships (I really don't know where you were going). First, while your opinion does not even mention which case you are referring to specifically, I will assume you mean the class action sexual discrimination case brought against Wal-Mart. As a trial lawyer, and a former employee of Sam's (I worked as a cashier through college to pay my way), I can state that the Company has a plethora (a lot) of H.R. issues - from systematically cutting over-time, to making fraudulent statements to avoid workers' compensation claims. Furthermore, I am willing to concede that you may not be able to understand why the case was thrown out as you obviously do not have a legal education, and/or you failed to actually read the opinion. So to make things easier for you, Justice Scalia's opinion holds that the class was thrown out because it did not fit within the framework of our Federal Rules for class action lawsuits. More specifically, the Court held that it could not answer the question of whether there were questions of law or fact common to the class. It is a landmark case in class-action law, but you missed the point entirely! The Supreme Court DID NOT rule that the case was frivolous, or that the women in the class were NOT discriminated against - the merits of the actual case were not even addressed by the Court. They didn't lose, they were essentially told to file separate Title VII (sexual discrimination cases), which by the way will clog the Courts and most certainly deny justice to many. So to sit out in Appling and throw rocks at "greedy millionaire trial lawyers," when you don't even understand what happened, completely blows my mind. I am proud to be both a Republican and a trial lawyer. Ask our party members if they have even considered how a law will impact people - real people, not just the ones with money - before they stump a half-arsed tort reform speech at a BBQ to raise money for their own campaign before you stand up and cheer. Better yet, ask yourself, if it were your daughter, your wife, your mother, or your sister that had worked for an employer for 40 years as an Assistant Manager, and had been passed over for her own store 6 times despite doing an excellent job, if it would be fair. Your opinion gripes about not improving our civil justice system...I think SCOTUS just did, but you missed it. They will have to look at every plaintiff on a case-by-case basis, instead of coming up with some magical formula that may or may not redress those who truly were discriminated against. So my challenge to you is to think first before you jump to conclusions. Do not tote the party line - think for yourself - ask more questions - and make your opinion and your vote informed! Hate trial lawyers? Mississippi Republicans couldn't wait to get tort reform in place in the early to mid 2000's. Trial lawyers were Satan's servants. Then Hurricane Katrina hit, and insurance companies unanimously denied home owner insurance claims across the board. Our sister state's Republicans looked around and said how will we fix this? The answer? "We need trial lawyers." Mr. von Schweinitz, I personally hope you never need us, but when something bad happens to you or to your family member, we will still be there, standing at our post, willing, waiting, and wanting to help, even if you cannot afford to pay us hourly like Wal-Mart can. That is our job, that is our profession, that is our duty.

allhans
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allhans 11/08/11 - 11:44 am
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The arguments used here would

The arguments used here would actually support "loser pays". But I can see why an attorney would disagree.

bjphysics
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bjphysics 11/08/11 - 11:47 am
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tl;dr

tl;dr

harley_52
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harley_52 11/08/11 - 12:16 pm
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Local Lawyer, you present a

Local Lawyer, you present a convincing case and I have no doubt you are a fine and noble person. I thank you for the time and care you took to state your case which I find to be among the most eloquent of posts I've seen on here during my tenure.

There is, however, another side to the story. All trial lawyers aren't like you and all cases aren't like class action sexual discrimination case brought against Wal-Mart.

The dilemma is real. Do we want a system where a dishonest client and an unscrupulous lawyer can drive all the OB/GYN doctors out of business, or do we want a system where some poor soul who can't afford a team of lawyers can be run over by a powerful, but sloppy doctor?

The answer is, of course, neither. But how to achieve a balance within our existing structure seems impossible.

So in the absence of a reasonable, rational compromise, I am in favor of the "loser pays" system simply because the "winner" has "right," not "wrong" as their partner whether they be rich, or poor and that seems to me to be about the best we can do.

Little Lamb
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Little Lamb 11/08/11 - 12:12 pm
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How about a hybrid system:

How about a hybrid system: if the loser has deep pockets, loser pays; if the loser is the little guy, winner pays?

harley_52
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harley_52 11/08/11 - 12:30 pm
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Okay in theory, but not

Okay in theory, but not workable in real life.

bjphysics
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bjphysics 11/08/11 - 12:44 pm
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Tort reform and ideological

Tort reform and ideological reversals

“Tort reform in US politics”

>>>Republican lobbyist Grover Norquist points out possible political motivations for tort reform, writing in American Spectator that "Modest tort reform, much of which has been actively considered by committees in both houses, would defund the trial lawyers, now second only to the unions, and this is debatable, as the funding source of the Left in America." But the debate over tort reform is not always a partisan affair. As a senator, Barack Obama voted for the Class Action Fairness Act of 2005 and for the FISA Amendments Act, which granted civil immunity to telecommunications companies that cooperated with NSA warrantless wiretapping operations. In the 2000 presidential election, the Democrats' vice presidential nominee, Senator Joe Lieberman, was a leading supporter of tort reform; former New Republic and Slate editor Michael Kinsley has often criticized products liability law. And the conservative pro-life group Center for a Just Society opposes many tort reform measures, arguing that litigation can be used to keep RU-486 off the market.

The United States Supreme Court sometimes weighs in on tort reform debates, but here too, the justices do not always vote according to their predicted ideological stereotypes. In the seminal case of BMW v. Gore, the court ruled that the Constitution placed limits on punitive damages, with liberal justices Stephen Breyer and John Paul Stevens in the majority and Justices Antonin Scalia and Ruth Bader Ginsburg dissenting. Under Chief Justice John Roberts, some expect the court to be more likely to take cases that could resolve tort reform debates.

In 2010, President Barack Obama gave a speech addressing the issue of tort reform: "[t]he class action system was never intended to be a casino for lawyers to obtain jackpot attorney's fees. The class action system was created with the best of intentions- to protect consumers by allowing individuals with small, similar claims to be joined in one lawsuit. But unfortunately, it has been turned on its head, taking money from those it was meant to protect- consumers and shareholders- and making lawyers filthy rich." <<<

http://en.wikipedia.org/wiki/Tort_reform#Tort_reform_in_US_politics

harley_52
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harley_52 11/08/11 - 12:53 pm
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Always focus on what Obama

Always focus on what Obama does, not what he says.

If you are more comfortable focusing on what he says, expect him to do the opposite.

bjphysics
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bjphysics 11/08/11 - 12:58 pm
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ODS

ODS

LocalLawyer
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LocalLawyer 11/08/11 - 01:03 pm
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Thank you, harley_52 for your

Thank you, harley_52 for your kind remarks. There are ways of achieving a balance though, and some methods are actually already in place here in Georgia. Let's take OB/GYN doctors as an example since you mentioned them. About 5 years ago, Georgia changed its laws to require an affidavit from an expert witness stating a breach of a duty had actually occurred in order to sue a doctor (and many other professionals as well). While there are "bad doctors" who will sign these affidavits even when the OB did not breach the standard of care, they charge the plaintiff's lawyer a hefty sum for their service. On top of that, after filing suit, the lawyer will have to find someone reputable to testify as an expert witness at the actual trial. The plaintiff's firm fronts these expenses as well.

I have never sued a doctor (not my practice), but I can assure you that by the time a medical malpractice case gets to trial, the plaintiff's lawyer has invested close to $100,000 (if not more) in the case for expert witness' fees alone (I'm not even counting the 200+ hours the lawyer would already have in legal work which he or she has not been paid for after going through written discovery, deposing witnesses, and preparing for trial). If he or she loses the case, technically they could ask their client to pay them for the expenses (expert witness fees, but not their time in the file), but let's face it, you cannot collect money from an alleged victim if you lost and expect to be in business very long. So if the plaintiff's lawyer loses (and they do), he or she is out about $100,000 (again minimum ballpark estimate), all of his or her time in the file (that could easily be $40,000), and his client has lost their case.

So two points - We do have hurdles in the way already to discourage frivolous lawsuits (expert affidavits from a doctor - even if they seem like tiny hurdles to some) - and the losing attorney already does pay...significantly. We, or at least I, do not take frivolous cases or cases we don't think we can win because it is not a sound business practice and filing those types of cases ruins your reputation. (In the legal world, your reputation is everything, if you lose that, you've lost your practice).

We don't have a perfect system, and we never will. But what we do have works for the majority of the people the majority of the time.

harley_52
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harley_52 11/08/11 - 01:47 pm
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Local Lawyer...another great

Local Lawyer...another great post. I have no doubt that if all trial lawyers fit your mold we'd be fine. Sadly, they don't.

I think you hit the nail on the head with your "two points," but surely you recognize that for every dishonest client and unscrupulous lawyer, there's a doctor willing to offer an affidavit opinion supporting their claim, or a least allowing that it's possible. If it's possible, it can be grounds for award.

Your comment that "In the legal world, your reputation is everything, if you lose that, you've lost your practice" is interesting, because it demonstrates your ethical perspective. If, on the other hand, the success of your practice depended upon a reputation for getting huge settlements out of weak, questionable cases your client list might be even greater and your bank account bigger as well, your perspective might be different.

LocalLawyer
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LocalLawyer 11/08/11 - 01:58 pm
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It's not about the money for

It's not about the money for a lot of us. It's about doing the right thing and helping those unable to help themselves. That was why I went to law school. I believe you would find that same sentiment from many trial lawyers. We were the kids that stuck up for the unpopular ones in grade school. As for reputation, what I mean is that when a defense attorney sees your name on a file, he or she will think one of two things: that guy is a good lawyer who only takes serious and legitimate cases and will fight like hell to see his client is taken care of or that guy is a slimeball pushover who would rob a nun if he could. Trust me, the money is far far better for the former. Most cases settle, but if your reputation is one call that's all, you can expect chump change. It is still a profession for most of us.

harley_52
23007
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harley_52 11/08/11 - 02:07 pm
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I hope you are right. Just

I hope you are right.

Just out of curiosity, in which camp would you place John Edwards?

LocalLawyer
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LocalLawyer 11/08/11 - 02:46 pm
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I don't know enough about

I don't know enough about John Edwards to post an opinion. I have not looked into what all he did as a lawyer, and I certainly do not want to form an opinion based on what I hear here and there. I know Vice President Cheney schooled him in the V.P. debate though, and that he cheated on his wife who had cancer. So he isn't exactly a good man.

rmwhitley
5542
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rmwhitley 11/08/11 - 08:17 pm
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Trial lowyers should be
Unpublished

Trial lowyers should be forced to house their clients ( accused murderers, rapists, child molesters, embezzlers, robbers, thieves, guvmint employees, racketeers, shooters, stabbers, poisoners, union thugs, protestors in violation of city-state-national ordinances et al) in their own homes ( be completely responsible for their actions) until a verdict has been reached. Have a wonderful day!

carcraft
25318
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carcraft 11/08/11 - 08:21 pm
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One time President of the

One time President of the American Board of Obstetrics and Gynecology said " To accurately read a fetal heart monitor you need a trial lawyer"!

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