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Net surfing: punitives in legal malpractice, judicial activism, and getting old

Every now and then, instead of reading through Ohio decisions, I get lazy and decide to surf the web and pick up stuff.  This is one of those days. 

Yeah, I know this is a blog about Ohio law, but the Illinois Supreme Court came down with a decision the other day that's somewhat interesting:  it held that a plaintiff in a legal malpractice case wasn't entitled to recover the punitive damages that the lawyer's negligence might have cost it.  You can read about the decision here.  It's a curious intellectual conundrum:  on the one hand, since punitive damages are intended to punish a tortfeasor for particularly egregious conduct, it's not fair to impose them upon a lawyer who's merely been negligent.  On the other hand, the purpose of a malpractice judgment is to make the plaintiff whole -- i.e., allow him to recover what he lost as a result of the lawyer's negligence -- so if he would have recovered punitive damages, why not make the lawyer responsible for that as well?

Here's an article from the Federalist Society about the activism of the Ohio Supreme Court in the period from 1995 to 2002.  It's not exactly path-breaking, and some of the arguments are hard to quibble with:  for example, the Court's decision in Scott-Pontzer, which allowed an employee to recover under his employer's uninsured motorist coverage, even when the employee was driving his own car and wasn't on the job, was arguably one of the most ridiculous decisions handed down by any court in the last decade. 

On the other hand, we'll see whether the Court has tilted in the opposite direction in the next year or so, when the recent changes in the tort law start coming before it.  One of those will be interesting to me, at least; I just got done writing a brief on summary judgment in an intentional tort case against an employer.  In April of 2005, the legislature passed RC 2745.01, which states that an employee can't sue for an intentional tort unless he can show that the employer knew an injury was "substantially certain," and defines that phrase as meaning that "an employer acts with deliberate intent to cause an employee to suffer an injury, a disease, a condition, or death."

That definition, of course, is an employer's wet dream (I was tempted to phrase it that way in the brief, too, but cooler heads prevailed); it would preclude just about any tort claim short of the boss attacking an assembly line worker with a ballpeen hammer.  In fact, the legislature twice before passed identical language in the 1990's, and the Supreme Court ruled it unconsitutional on both occasions.  We'll see what happens this time around.

Last, if you're looking to emulate someone, try Walter Seward.  As this story tells us, Walter recently celebrated his 110th birthday, and is the oldest living graduate of Harvard Law School.  He passed the bar in 1924, and enjoyed it so much that he "continued to practice on a part-time basis as he neared 100."

Frankly, if any of you see me walking around the Justice Center when I hit my 70's -- another fifteen years from now -- you have my permission to drag me across the street and have me probated.

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