(Photo: Shutterstock.com)

Look, I get it. I'm a writer. Editing is hard.

Also, there's no way a court of appeals wants to read a 17,258-word brief about a prisoner and his kidney stones.

Judge Frank Easterbrook of the U.S. Court of Appeals for the Seventh Circuit made that quite clear on Wednesday when he busted both sides for excessively long briefs.

Jay Vermillion, an inmate at the Pendelton Correctional Facility in Pendelton, Indiana, claims in a pro se suit that prison medical personnel failed to treat his kidney stones. He lost on summary judgment at the district court level.

On appeal, he tried to get around the Seventh Circuit's 14,000-word brief limit by concluding that footnotes and references to the record and appendix don't count as part of the total. (Per Easterbrook, they do.)

The result was a 62-page blow-by-blow of every interaction he's had with the prison medical staff, plus a horrifying account of passing a “gigantic” kidney stone. (“Vermillion then grabbed a cup, ran to the restroom, released the manual repression and began to pass blood until the flow was terminated by an obstruction…then forcefully expelled an enormous jagged obstacle which lacerated its way through his penile urethra causing pain that was so great he felt as though he would pass out.”)

But he's pro se. He doesn't have someone to tell him, for example, that the part about how he presented the doctor with photocopied illustrations from a medical encyclopedia showing the location of the prostate and its proximity to the bladder and sigmoid colon, just in case they didn't cover that in medical school, doesn't really bolster his case. (The doctor “simply laughed and stated that he was the doctor.”)

But Corizon Health Inc., which provides medical services for the Indiana Department of Correction, as well as the doctor and nurse who treated Vermillion, are represented by medical malpractice defense specialists Bleeke Dillon Crandal in Indianapolis.

They're the ones who flagged Vermillion's over-long brief, which they tallied at 16,850 words.

Their solution? They should get to go even longer.

“Defendants/appellees anticipate that in order to adequately document appellant's medical care and undisputed facts in this case, outline the expert testimony, and develop argument to each of plaintiff's interlocutory appeals, their principal brief will include a word count of approximately 55 pages and 17,258 words.”

No. That's not happening. “Instead of adding words to appellees' brief, I struck Vermillion's, and ordered him to file a new brief with fewer than 14,000 words,” Easterbrook wrote.

But he did give the prisoner a break.

“Vermillion is litigating without the aid of counsel, and his response to my order shows that he tried to comply in good faith, although he misunderstood both Rule 32(f) and the right place to start in Microsoft Word,” Easterbrook wrote. “No sanction—beyond the work needed to prepare and file a compliant brief—is appropriate.”

 

Study: Torts Cost $429B a Year. Sort Of.

Here's a number that's intended to shock: $429 billion.

That's how much the U.S. Chamber of Commerce Institute for Legal Reform in a new study says our country's tort system cost in 2016.

In case you're wondering, that works out to “about $3,330 per household—or almost double the average cost of putting gas in your car—an alarming trend when you consider that over 40 cents per dollar go to attorneys' fees and other costs,” the group's president Lisa A. Rickard, said in a news release.

To its credit, the ILR tried to do something very difficult—quantify the cost and compensation paid in the U.S. tort system in a year. But the result is not exactly what the headline or Rickard's quote suggests.

To arrive at the number, the ILR didn't compile all of the year's verdicts and settlements and legal fees—what I would consider the actual cost. That information just isn't available.

Instead, the ILR used insurance data. “The largest sources of liability risk imposed by the tort system are insurable, and the cost of liability insurance provides a reasonable basis on which to estimate the size of the tort system,” the report states.

That means their definition of the “tort system” includes only categories of liability that are insurable—commercial and personal tort claims for personal injury or property damage, commercial disputes based on claims like negligence or bad faith, automobile accident liability, consumer protection liability, professional liability, including medical malpractice, product liability and certain environmental toxic torts.

That's a big universe, though it excludes things like harms caused by intentional actions, because those are typically uninsurable.

So how do they get to $429 billion?

It's “based on the total premium expense that would be required to fully insure against all claims arising in the tort system,” the report states. “The earned premiums cover, on a present value basis, the aggregate amount of covered awards and settlements, the costs of managing liability risks (including contributions to insurers' operating expenses and profits), claims administration costs, and legal costs of adjudication.”

In other words, the report is more about insurance costs than legal costs, though the two are certainly connected. But insurance reform is nowhere near as sexy a rallying cry as tort reform, and I fully expect to hear the $429 billion number bandied about in the future.

Read the full report here.

 

What I'm Reading

Uh-Oh: Judge Tosses All 7 Plaintiffs Experts in Contraceptive Liability Suit

In a major coup for lawyers from Covington & Burling, not one of the seven expert witnesses offered by the plaintiffs in a massive multidistrict litigation over alleged side effects of Bayer's contraceptive implants will be allowed to testify.

LA Judge Chastised—Again—for Delegating Casework to Clerk

“Judge Hiroshige's practice of having his clerk meet with parties and counsel and convey his decisions in court gives the appearance that the clerk, rather than the judge, is running the court.”

Justice Dept. Takes Stance Against Transgender Rights—and the EEOC—in Supreme Court

U.S. Solicitor General Noel Francisco's brief filed Wednesday did not include any EEOC lawyers on the cover sheet, one sign of the conflict between the agencies. 

NY AG Lawsuit Says ExxonMobil Misled Investors on Its Climate-Change Regulatory Risk

“Exxon built a facade to deceive investors into believing that the company was managing the risks of climate change regulation to its business when, in fact, it was intentionally and systematically underestimating or ignoring them,” said New York AG Barbara Underwood.

Judge Favors Trial, Not Stay, in Dispute Over Census Query

Since time is of the essence, U.S. District Judge Jesse Furman said that it would be more prudent to advance to trial next month and develop a full record for the inevitable appeals, rather than stay proceedings now ahead of an unclear Supreme Court timetable.

Russian Telecom Sues Hewlett Packard Enterprise Over 'Cascading Catastrophic Failures' in Network Upgrade

“Imagine a similar shutdown of any large cellular company in California and the corresponding impact on its business and reputation,” wrote MegaFon's lawyers from Winston & Strawn. “HPE knew that it did not have experience with or the necessary expertise to successfully handle a project of this scope, scale, and purpose.”

In case you missed it…

Daily Dicta: Quinn on Top in Alibaba Trademark Spat

How does a company that's based in China and incorporated in the Cayman Islands go after an upstart working out of the United Arab Emirates and Belarus—in a New York court? The answer: Carey Ramos.