Thank you to Walter Olson for the opportunity to guestblog here over the past week.  Thank you to Ted Frank for sharing the space.  And thank you to Overlawyered readers for reading my posts here.  Walter has additional top quality guestblogging in store to see you through to the New Year.  Since he hasn’t shared the secret with me, I will be checking in bright and early Tuesday to learn who it might be.  I encourage you to do the same.

It has been a pleasure doing justice with you.

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Lawyers and lay people in the United States generally believe that the adversary system is the best way to deliver justice in a civil or criminal trial.  Broadly speaking, adversarial procedure leaves most critical pre-trial and trial decisions such as discovery, the framing of issues, choice of witnesses, the questions directed to witnesses, and the order of proof in the hands of lawyers.  The central precept of the adversary system is that the sharp clash of proofs presented by opposing lawyers, each zealously representing the interests of their clients, generates the information upon which a neutral and passive decisionmaker can most justly resolve a dispute.  In contrast, legal systems outside the Anglo-American world employ inquisitorial pre-trial and trial procedures that leave critical elements of the process under the control of a judge rather than the attorneys.

        * * *

The unquestioned dominance of the adversarial system seems paradoxical because the general public despises and distrusts lawyers.  In an ABA poll conducted by M/A/R/C Research, only 14% of the public were extremely or very confident in lawyers and 42% were only slightly or not all confident.  People had far more confidence in judges: 32% were extremely or very confident in judges and only 22% had slight or no confidence in judges.  Why, therefore, would people want to turn over something as important as control of the pre-trial and trial processes to lawyers whom they thoroughly distrust, rather than to judges whom they distrust much less?  Why would they prefer a system whose objective is to generate ‘trial truth’ rather than real truth, substantive justice rather than procedural justice?  This article speculates about some possible solutions to these puzzles.  [Footnotes omitted; emphasis in original.]

Professor Asimow suggests that attitudes toward the real life adversary system have long been shaped by the stories of purely fictitious advocates.  "Popular culture has taught us that the adversarial system uncovers the truth about past events.  According to familiar pop culture narratives that we absorb from the cradle onward, lawyers working within an adversary system are champions of justice and liberty." 

Asimow’s Exhibit A is the greatest criminal defender of them all, Perry Mason.  Exhibit B?  A rather less polished upstart from the outer boroughs of New York:

A staple of lawyer movies is the brilliant cross-examination that destroys a lying, deceptive or mistaken witness and reveals the truth.  Although many such movies are instantly forgettable, some are exceptionally vivid. Just to name a couple, take the immortal My Cousin Vinny.  Vinny Gambini has recently passed the New York bar exam (after numerous failures) before traveling to Alabama to defend his young cousin and a friend in a murder trial.  Vinny is clueless about Alabama culture and criminal procedure, but nevertheless morphs into a brilliant trial lawyer.  His cross-examinations are devastating.  For example, one eye-witness claims he saw the two ‘utes’ enter the Sack o’ Suds grocery store and exit five minutes later in a green car.  He knows it was five minutes because he looked up just as he started and just as he finished cooking his morning grits.  Vinny points out that in the rest of the grit-eating world, it takes 20 minutes to cook grits.  The witness is destroyed.  Vinny also deploys his girlfriend Mona Lisa Vitto, an unemployed hairdresser, as an expert witness on auto mechanics to devastating effect.  This scene effectively validates the existing system of partisan expert witnesses.  [Footnotes omitted.]

The entire paper, (M. Asimow, "Popular Culture and the Adversary System"), with many more examples, can be downloaded as a PDF from Social Science Research Network.  Link via Christine Corcos at the Law & Humanities Blog ("Michael Asimow on the Image of the Adversarial System in Popular Culture," Dec. 1).

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Per the GAO panelists, "conflicting pressures of avoiding risk and producing a high return on investment" combine to curtail the development of the most innovative new drugs:

[C]ompanies prefer to produce drugs that require little risk taking but still offer the potential for high revenues.  This strategy has created an emphasis on producing ‘me too’ drugs — drugs which have a very similar chemical formulation to drugs already on the market.  These drugs are less risky to develop because the safety and efficacy of the drugs on which they are based have already been studied.  According to one panelist, an industry representative, because the length, complexity, and expense of developing a single drug have all increased dramatically over the last 10 to 15 years, companies must choose fewer drugs to develop.  As a result, they will often follow a business model that involves choosing drugs that are easy to develop, with a large market that will produce a large return on investment.

Another factor cited is "sponsors’ uncertainty over how they are to implement requirements for the safety and efficacy of new drugs."  The report notes

general agreement that the lack of precise FDA regulatory standards that outline what constitutes a safe and effective drug is a factor when making drug development decisions — weighing the safety of drugs against their potential therapeutic benefits.  Panelists generally agreed that because there are no precise standards for making these decisions, sponsors and FDA must address them on a case-by-case basis.  As a result, it was indicated that this uncertainty may lead a drug sponsor to abandon a drug rather than risk significant development expenditures.

While product liability litigation is not mentioned in the report by name, it clearly factors in to the industry’s aversion to "risk."  Moreover, at least some of the uncertainty and extra-cautious attitudes within the FDA can be traced to highly publicized — and heavily litigated — withdrawals of drugs based on safety concerns:

* * * Some analysts have reported that safety concerns during the 1990s — which led FDA to request that manufacturers withdraw pharmaceuticals including fenfluramine and dexfenfluramine (known as Fen-Phen) in 1997, Propulsid and Rezulin in 2000, and Baycol in 2001 — impacted FDA’s review requirements.  For example, a 2004 report completed for the European Commission — the executive body of the European Union — found that the withdrawals of these pharmaceuticals from the market affected FDA’s implementation of its regulatory standards.  According to this study, FDA began to demand more complex clinical trials that called for more testing on: (1) how drugs interact with each other, (2) the effect of drugs on liver toxicity, and (3) the relationship of drugs to cardiac risk. In addition, according to several drug development experts and some industry analysts, FDA has been requiring more lengthy and complex clinical trials, which call for more patients and increased costs. . . .

Commenting on the GAO report, Ronald Bailey (Reason Magazine, Hit & Run, "What’s to Blame for Fewer New Pharmaceuticals?," Dec. 20) summarizes:

Why have FDA regulators become more cautious?  Because, as Harvard Business School professor Regina Herzlinger explains in her May, 2006 article, Why Innovation in Health Care is So Hard (not online): ‘Officials know they will be punished by the public and politicians more for underregulating — approving a harmful drug, say — than for tightening the approval process, even if so doing so delays a useful innovation.’

I will venture to suggest that the FDA’s increased obsession with safety may be killing more people than it saves.  How about a GAO study on that question?  After all, if it takes the FDA ten years to approve a drug that saves 20,000 lives per year that means that 200,000 people died in the meantime.

The full GAO report, "New Drug Development: Science, Business, Regulatory and Intellectual Property Issues Cited as Hampering Drug Development Efforts," is available for viewing and download here [PDF].

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A recent email reminded all the lawyers in City Attorney Rocky Delgadillo’s criminal branch never to talk to reporters without clearance — and how they should recognize a newsworthy legal case.  Public safety?  Important public issue at stake?  Nah, this is L.A.

Number one is any case involving a celebrity — ‘no matter how minor’ — followed closely by a politician.  Death, mutilation, child molestation or animal cruelty are also sure bets.

Terrorism shows up as the tenth item on the list, slightly behind cases representing a "major personal accomplishment for the prosecutor" and not far ahead of cases involving "a truly weird fact pattern."

Roderick reproduces the entire long e-mail — repetitiously entitled "Improving Communications with the Communications Department" — which prescribes an elaborate protocol for keeping "’primary points of contact"’ within the Communications Department" [formerly the "Press Office"] informed as cases proceed, and concludes with a reminder that it pays to plan ahead, even before bringing charges:

[I]f you have a case that is very likely to attract media attention, such
as a celebrity justice case, you may want to obtain guidance from the
Communications Department in advance of the filing, arraignment, trial,
etc. regarding how to deal with expected press inquiries.

What a wonderful phrase: "Celebrity justice."  Welcome to L.A.

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Fennelly claimed to have been totally incapacitated by an on the job back injury, and was collecting benefits from Maine Employers Mutual Insurance Company [MEMIC].  At the same time that he maintained he was unable to work, Fennelly was busily toiling away and collecting wages from several employers as a lobsterman.

As investigators trawled deeper, the truth got murkier.  Not only was Fennelly commercial fishing while collecting workers’ compensation, he was also employed at the Town of Lamoine Transfer Station and earned wages as a sternman aboard another boat — none of which he report to MEMIC, which he was obligated to do by Maine law.

        * * *

Under oath, he repeatedly denied working.  When confronted with Trenton Bridge Lobster Pound records, he said he didn’t make ‘one penny’ and declared he only drove the boat to train an apprentice.  He then testified there was no way to prove earnings because he did not have a bank account due to back child support that he owed.

When a subpoena turned up two bank accounts, one with deposited checks from the lobster pound, a new story of fronting the apprentice with workers’ comp money for bait unfolded.  But Fennelly had no answer as to why he deposited a Trenton Bridge check, a MEMIC check and a Town of Lamoine check all on the same day.  And evidence to confirm the apprenticeship story never materialized.

Note that Fennelly was witholding support payments at the same time he lied to the insurer.  An all around upstanding citizen and now a guest of the State, tangled in the net of his own deceptions.

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Worse than these, though, in many ways, are wealthy and/or powerful egotists who use the legal system on a whim, as their personal payback mechanism or as a means of venting their pettiest grievances.   At the risk of fatally lowering the tone of Overlawyered and of prematurely ending my tenure as a guestblogger, I note the latest example, a tiff between two deeply unpleasant but inescapable self-anointed celebrities: Rosie O’Donnell and Donald Trump (MSNBC, "Trump to Rosie O’Donnell: You’re sued!", Dec. 21).

Earlier this afternoon Trump announced he is filing suit against the TV talk show host. ‘She says things that come to her mouth, she’s not smart, she’s crude, she’s ignorant and to be honest I look forward to suing Rosie,’ he told our cameras. ‘I’m gonna sue her and I look forward to it.  She’s really very dangerous for the show.’

Trump declined to elaborate on the details of his proposed legal filings, but added O’Donnell will understand his reasoning.  ‘Rosie will find out what we’re suing her for.  She knows what we’re suing her for,’ he said adding the lawsuit is already in the works.  ‘It’s something I look very forward to,’ he added.

If ever there was a case for "loser pays," this is it.   Trouble is, with relentlessly meaningless suits like this one gumming up the works, we’re all the losers.

Of Related Interest: The scurrilous Los Angeles gossip site, Defamer, has the Trump video from which I have drawn the post title (Dec. 20).   Not that I would recommend watching it, of course.

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The Court states two grounds for its conclusion. First, the Oklahoma Constitution bars the legislature from adopting "special laws" in which different members of the same class are treated differently.  The Court concludes that the affidavit of merit requirement distinguishes medical negligence claims from all other negligence claims, in violation of the "special law" prohibition.  Second, the Court concludes that requiring potential med mal plaintiffs to bear the expense of obtaining a medical expert’s pre-litigation opinion — the Court estimates it to be between $500 to $5,000 — creates an economic bar at the courthouse door that impedes less wealthy claimants’ access to redress, thus depriving them of due process of law.

The court’s opinion in Monica B. Zeier vs. Zimmer Inc. and Theron S. Nichols, M.D., Oklahoma Supreme Court, No. 102472 (Decided Dec. 19, 2006) — which is not quite final and official as of this writing — is accessible through the Court’s website, here.

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The piece is puzzling because Maurer is the president of the National Federation of the Blind, which is suing Target for failing to make its website easily accessible to blind people.  Maurer calls the currency case, which is supported by the American Council of the Blind, ‘frivolous litigation’ while characterizing his group’s Target lawsuit as a straightforward application of the nondiscrimination principle.

Eye of the beholder, indeed.

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Details at the Legal Reader (Dec. 18, link via The Southern California Law Blog).

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The Wall Street Journal (Dec. 18 – article is available to non-subscribers) reported yesterday:

But Ms. Regan is fighting back, hiring well-known Hollywood litigator Bert Fields.  ‘They’ve chosen war and they will get exactly that,’ said Mr. Fields in an interview.  ‘She won’t take this lying down.’

Mr. Fields said HarperCollins had used guards to lock down Ms. Regan’s office and had also impounded her personal belongings.  ‘We’ll take appropriate action for everything HarperCollins has done,’ added Mr. Fields.  ‘They chose this path and I hope they remember it.’  A HarperCollins spokesman said that Ms. Regan collected her personal belongings before leaving her office in Los Angeles and that her office in New York wasn’t locked and that her belongings weren’t impounded.

* * *

[T]his past week, tensions flared, although details are still sketchy.  One scenario has it that Ms. Regan made some intemperate remarks to a HarperCollins attorney on Friday afternoon, causing Ms. Friedman to fire her.  The termination was executed with none of the usual corporate pleasantries about "pursuing other opportunities" and long years of service.

In an intriguing sidelight, the WSJ’s Law Blog (Dec. 18) reports that attorney Fields is, or fancies himself, a Shakespeare scholar and has had two books published on Shakespearean subjects . . . through the Regan Books imprint.  (Oh no, no potential conflicts of interest there; let’s just move along.)

Fields is perhaps best known as the bane of the Walt Disney Company: he represented Jeffrey Katzenberg in the now-settled litigation arising from Katzenberg’s departure from the company, he was consulted by the Weinstein brothers of Miramax when their relationship with Disney cooled, and he has featured prominently in the seemingly never-ending dispute over the rights to Winnie the Pooh.  He has also been a subject of interest, but has not been the object of any criminal charges, in the investigations surrounding wiretapping and other alleged misdeeds by "private investigator to the stars" Anthony Pellicano.

News Corp., in preparing to respond to Regan’s and Fields’ accusations, has taken the unusual step of disclosing the content of otherwise confidential notes taken by one of its own attorneys.  Those notes purport to reveal anti-Semitic remarks made by Regan and claimed by News Corp. to have been the "last straw" leading to Regan’s firing.  (See New York Times, Dec. 19).

Meanwhile, ABC News (Dec. 18, via the publishing weblog GalleyCat) reports that Regan and others at Regan Books, HarperCollins and News Corp. will likely either be named as defendants or at the very least have their depositions taken on behalf of the heirs of Ronald Goldman, who continue to attempt to collect on their civil wrongful death judgment against Simpson.  The Goldman family sees the entire transaction as a further attempt to hide Simpson’s assets:

The lawsuit would likely be based on the legal premise of ‘fraudulent transfer,’ which in this case would contend that News Corp. executives knowingly conspired to assist Simpson in subverting a civil judgment against him.

And so the saga continues, with only the lawyers — and Simpson — seeming to gain from it.

~~~

UPDATE: The Smoking Gun (Dec. 19) has posted a copy of the Goldman lawsuit, to be filed in U.S. District Court in Los Angeles and naming as defendants Simpson and Lorraine Brooke Associates, a corporation created (per the Complaint) to “warehouse Simpson’s intellectual property rights” and to serve as a conduit through which proceeds of those rights might be funneled to evade the Goldman judgment.

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