Asbestos: Part Deux

by James Copland on June 25, 2008

With Walter occupied on a deadline and Ted on the road, I’m happy to be back to wrap up my discussion of developments in asbestos litigation, as summarized in the Manhattan Institute’s recently released Trial Lawyers, Inc.: Asbestos report. As I noted last month, asbestos has an ancient history, and in the early part of the last century, it was deemed a “magic mineral”; its flame-retardant properties protected American naval vessels and schoolhouses from fire. (See here.) Unfortunately, asbestos exposure ultimately proved deadly, the plaintiffs’ lawyers pounced, and the American asbestos industry largely went bankrupt by the early 1980s. (See here.) The trusts created to pay out claimants from these bankrupt entities became a big business unto themselves, swamped with claimants and unable fairly or efficiently to process the claims. (See here.)

 What happened next, in the 1990s and early part of this decade, amounts in large part to the systemization of fraud, through a business model the trial lawyers developed to extract as much money as possible out of the asbestos well. As we point out in our Trial Lawyers, Inc. report, this business model “starts with marketing (recruiting plaintiffs), followed by production (eagerly screening prospective plaintiffs for purported lung impairment and usually finding it), packaging (bundling cases into a “mass” of tort claims), and sales (overwhelming courts and defendants to extract settlements).” At each stage of the process, the business exemplifies major problems with American jurisprudence. I’ll start with marketing.

Lawyers’ ability to “market” for clients is founded in the U.S. Supreme Court’s decision in Bates v. State Bar of Arizona, which determined that attorney advertising is a form of speech protected by the First Amendment. That ruling may well have been right as a matter of constitutional law, but it effectively gutted prohibitions on attorney solitication of clients and led to attorney-driven litigation. In the asbestos context, solicitation of clients became truly laughable, as ne’er-do-wells attracted potential plaintiffs to screening vans parked outside union halls or strip malls:

Heath Mason, a junior-college dropout with no legal or medical training who made $25.5 million from asbestos litigation. Mason’s role was attracting potential plaintiffs to “screening clinics” that interviewed and “tested” them, usually in trailers hauled to restaurant, shopping-center, or motel parking lots. Mason would lure passersby with attractive women he called his “lawyer girls,” such as the two young lawyers he met at an unidentified convention in Fort Lauderdale, Florida, and later persuaded to stand on a Fort Worth street corner with signs directing potential plaintiffs to an X-ray screening van in a Staples parking lot.

Today, marketing tactics are also of the sophisticated variety. As Overlawyered readers are aware, the most expensive Google ad-search terms involve “asbestos” and “mesothelioma.”

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Asbestos: Production — the great screening scam
06.25.08 at 6:19 pm

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1 AMcA 06.26.08 at 12:53 pm

Speaking of “mesothelioma” websites: following the news on this site that “mesothelioma” was the single most expensive search term on Google (something like $67, as I recall), I have adopted the practice of occasionally putting the term into Google, then clicking on all of the “sponsored links” on the page.

It’s my way of transferring wealth from the non-productive, purely redistributive lawyer sector into the wealth-creating folks at Google.

That, and it feels good to know I’m costing the plaintiff’s bar some cash. It’s easy to move $500 with just a few clicks of the mouse.

Try it sometime!

2 Melissa 06.26.08 at 4:08 pm

In regards to the 2nd comment. I work for a small company that provides website marketing for some of these lawyers. We charge a flat rate, so when you are clicking on a term with the intent to cost someone money (AKA “click fraud”), you aren’t hurting a lawyer– you are hurting the little guys. Thanks!

3 Yong 06.26.08 at 5:22 pm

I would also like to make a statement regarding the second comment. What you are doing is called click fraud. The Securities and Exchange Commission has determined click fraud to be a federal crime. It is my hope that you are caught, and that you face the consequences for your morally reprehensible behavior. The act you are knowingly committing is no different than stealing money directly from the advertisers you are clicking on. You’re not transferring wealth. You are not Robin Hood. You are simply a ‘hood- a criminal- a lowlife. Also- I have personally seen a single click cost $100 on Google, and over $750 on Yahoo!- so try to get your facts straight before committing theft. Theft- the act of intentionally depriving an individual or organization of there rightful property without their freely-given consent.

4 Like the idea 06.26.08 at 7:51 pm

I just spend a half hour researching the terms mesothelioma and asbestos on google. I clicked on most of the links on the pages because I know that they are providing information about these deadly diseases. I was very surprised to see that most of the available information is from law firms. I think that I’ll inform my many friends about this great new source of medical information. I’m going to do research every day from now on. Thanks for the idea Mr Yong!

5 Griffin3 06.27.08 at 9:26 am

And yet, somehow, they keep on advertising that way. Imagine what the profit margin must be, if it’s still worth doing in the face of so much incidental loss …

6 Lawyer 06.27.08 at 12:19 pm

“[W]hen you are clicking on a term with the intent to cost someone money (AKA “click fraud”), you aren’t hurting a lawyer– you are hurting the little guys.”

True, but indirectly, if enough non-revenue producing clicks occur, the “little guys” will pass-on these higher costs to their plaintiff-lawyer customers.

It’s almost like, dare I say, the way that the higher costs of litigation are passed to consumers in the absence of binding arbitration agreements.

7 JJ 06.27.08 at 8:54 pm

Melissa and Yong – You are part of the entire hypocricy. Do you have any idea how silly you sound with your whining? You are part of a system that is defrauding the entire country. Billions of dollars extracted from the productive segments of the economy based on outright lies. And yet you can get indignant about a feeble attempt at protest that costs these legal pirates chump change. Amazing…… I say click away.

8 Paul 06.27.08 at 11:44 pm

Wait, it’s a crime to click on an advertisement unless you’re actually interested in the product?

9 Lawyer 06.28.08 at 12:09 pm

Paul –

No; a human clicking on a link without the intent to buy a product is not a crime, anywhere. There have been prosecutions for fraud where marketing-servers created robots/automated machines to click on ads, but that was in order to generate revenue for themselves. And that’s fraud.

Note that “Yong” above CANNOT be legally educated because anyone who writes “The Securities and Exchange Commission has determined click fraud to be a federal crime” has neither understanding of the SEC, nor has ever taken Administrative Law.

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