You’d think if President Obama, the New York Times and the American Association of Justice were all circulating the same number yesterday, it would be more reliable.
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Chronicling the high cost of our legal system
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You’d think if President Obama, the New York Times and the American Association of Justice were all circulating the same number yesterday, it would be more reliable.
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The Montana governor now claims he was just making up all those stories about using underhanded tactics to make sure his candidate won the U.S. Senate race, but his audience at the trial lawyers’ convention seemed to lap it up at the time. (Kirk Johnson, “Montana Officials Chastise Governor Over Boasts in Speech to Lawyers’ Group”, New York Times, Sept. 12; Rusty Shackleford, MT Pundit, Sept. 8; Robert Struckman, “Gov. Schweitzer’s Tampering Comments Spark Controversy”, New West Network, Sept. 10; Charles S. Johnson, “Schweitzer catches heat over July speech”, Helena Independent Record, Sept. 11; Jennifer McKee, “Bit of truth found in Gov. Schweitzer’s joke”, Missoulian, Sept. 12; speech).
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Carter Wood has been doing great things lately with the National Association of Manufacturers’ Shop Floor blog, which often treats legal reform topics. Since Monday he’s also been posting up a storm guestblogging at Point of Law. Topics include: ATLA/AAJ’s juvenile pre-nose-thumbing at the U.S. Chamber of Commerce’s 2008 Lawsuit Climate Report (which, like similar studies from ATRA and Pacific Research Institute, tries to pick best and worst state legal environments); the employment-litigation-expanding Lilly Ledbetter Fair Pay Act (more); some thoughts on journalistic shield laws; and sundry reports from the Geoffrey Fieger trial, Florida politics, and Texas Supreme Court-watching.
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You remember last year, when the Association of Trial Lawyers of America tried to hide their identity and changed their name to the considerably less accurate American Association for Justice. (Aug. 2006; July 2006, etc.) Well, a new organization, led by J. Keith Givens, a former partner of the late Johnnie Cochran, has attempted to usurp the old acronym with an organization called The American Trial Lawyers Association, arguing that ATLA abandoned the name. “The name defines who we are and what we do,” which is very similar to the remark made by AAJ when they surrendered the Trial Lawyer title. Litigation, of course, ensued. (Jeffrey H. Birnbaum, “A Case of Trial Lawyers v. Trial Lawyers”, Washington Post, Nov. 30; commentary from Murnane, Lattman, Adler @ Volokh, Scheuerman). The Association of Trial Lawyers of America surrendered the American Trial Lawyers Association name decades ago when the American College of Trial Lawyers complained it was too similar, and the ACTL is also unhappy with the new ATLA’s use of the name. The fact that the previous sentence is so confusing suggests that the plaintiffs have a point.
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Here is an interesting but tragic case currently in trial in King County, Washington. Maria Federici, a then 24-year-old woman was gravely injured when an entertainment center flew from a U-Haul trailer attached to a vehicle operated by another motorist. It smashed through the windshield of Federici’s following vehicle, striking her in the face crushing every bone in it. She suffered blindness and permanent disfigurement. Media accounts are here, here and here.
I’m not posting to criticize Federici’s suit per se. It has noteworthy flaws to be sure–for instance there is evidence suggesting her blood alcohol content (BAC) was above the legal limit while she was driving, but the BAC was obtained under circumstances suggesting the results were unreliable (the injury trauma and resultant blood loss may have affected the BAC.) And her boss testified that she had only one glass of wine prior to the accident. Notably, the court disallowed the BAC evidence at trial.
So, Federici sues the motorist who failed to tie down the entertainment center, U-Haul and the rental company for alleged design flaws in the trailer and alleged negligent rental practices. Okay, so the motorist can own up for his negligence and U-Haul and the agency can own up for theirs, right? Not so fast. Washington State allows for a fault-free plaintiff to recover all damages from any defendant even 1% at fault.
With or without evidence of intoxication I wonder if Federici could have avoided anything flying toward her while traveling at freeway speeds. So, let’s assume the jury assigns her zero fault. That leaves 100% of potential fault for the defendants. Now, if you read the media accounts it seems to me that the motorist carries the majority of any fault for failing to secure his load, causing the accident. But, who has the deepest pockets? Let me help you: it’s not the motorist.
The plaintiff attorney in this instance will pull out the stops–do anything–to implicate U-Haul, and to a lesser extent the rental agency for any little amount of liability they can so that his client can collect the entire judgment from them (I suspect U-Haul has sufficient assets; the rental agency, if the Mom-and-Pop type, maybe not.) I don’t blame the plaintiff’s attorney, really–he has to advocate his client’s interests. But, it shows how twisted and wrongheaded the joint & several statute is in Washington. Nothing against Federici here, she’s suffered enough. But I struggle with holding some people accountable for damages caused by others. Does this make any sense to you?
Let’s look at the Mission Statement for the American Association for Justice (formerly the Association of Trial Lawyers of America):
The Mission of the American Association for Justice is to promote a fair and effective justice system – and to support the work of attorneys in their efforts to ensure that any person who is injured by the misconduct or negligence of others can obtain justice in America’s courtrooms, even when taking on the most powerful interests.
I’m all for that! Especially that part that says “fair”. Is it fair to hold a 1% wrongdoer accountable for 100% of the damages? If so, why? Because I don’t agree and I’d like to know if I’m wrong. And, I just know the AAJ would scream bloody murder if anyone tried to amend that statute.
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We previously noted the important legislation passed by Congress in 2006 to protect deep-pocket car-leasing companies against vicarious liability for the accidents of its customers. As a result, the price paid by New Yorkers for leased vehicles dropped $600. Of course, that was money out of the pocket of trial lawyers, and ATLA’s litigation-lobby litigation arm, the Center for Constitutional Litigation, intervened with repeated efforts with judges to either ignore or strike down the statute. Several Florida state judges provided a tendentious reading of the statute to ignore it precisely when it was said to apply; a federal district judge refused, but instead struck down the regulation of the interstate transaction under the Commerce Clause.
One can applaud a narrower view of the federal government’s scope under the Commerce Clause, but this judge’s interpretation is contradictory to that of the Supreme Court’s and narrower even than Justice Scalia’s view, and perhaps even the view of the Supreme Court pre-Wickard: no court ever held that the federal government cannot regulate commercial automobile transactions. We’re looking forward to hearing the paranoid Constitution-in-Exile complainers on the left speaking up about the attempt by ATLA to strip the federal government of its powers.
CCL’s argument has been that the statute doesn’t regulate automobile transactions, but intrastate litigation. This is tendentious enough in state court (does civil liability under the ADA not regulate employment, but rather the litigation over intrastate employment?), but utterly absurd in a federal court where the parties are of diverse citizenship.
The ATLA press release is excited that the decision “gives rental car companies a powerful incentive to assure that their customers are adequately insured”—by forcing customers to purchase insurance that they may not want to purchase. Of course, nothing in the Graves Amendment forbade states from setting regulations requiring such minimum insurance; it just forbade trial lawyers from doing so in state court without state legislation. The litigation is a vivid reminder that getting legislators to act to enact desperately needed reforms is only the beginning of the process of fixing a broken civil justice system: one also needs judges who will follow the rule of law. (Vanguard v. Huchon (via Turkewitz); see also Graham v. Dunkley (NY Sup. Ct.)).
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Perhaps one reason trial lawyers so frequently accuse reformers of manufacturing popular outrage is because such astroturfing is a common trial-lawyer tactic: Peter Lattman uncovers eight identical letters to the editor written at the behest of the Association of Trial Lawyers of America (now going by the AAJ misnomer), all on behalf of Bill Lerach’s bogus Enron suit and criticizing the Bush administration officials who dare to stand up to the attempted extortion. Similar astroturfing regularly goes on in the comments section of the Lattman blog.
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The Ford Explorer is a sport utility vehicle. Judge Roy Pearson, excited by the $67 million he anticipates receiving for his pants, is bringing a lawsuit in California claiming that every California Explorer owner is entitled a total of $2 billion from Ford because the Explorer is allegedly prone to rolling over, using the California version of the law that Pearson is bringing his pants-suit over. Note that the damages are not for an actual rollover, just damages because of the “fraud” that the vehicle might roll over, though at least some models of the Explorer are in fact less dangerous than an average SUV in rollovers, and safer than the average vehicle in other types of accidents. (IIHS reports that the average fatality rate for mid-sized 2-door SUVs is 63 per million vehicles, and the average fatality rate for the 2-door Ford Explorer is 49 per million vehicles—and that latter number includes crashes caused by defective Firestone tires. Note that this is publicly available information: where is the fraud?)
Oh, sorry, it’s not Roy Pearson, it’s Arkansas attorney Tab Turner who is bringing the lawsuit. [Hudson Sangree, "SUV rollovers put Ford's future in judge's hands", Sacramento Bee, May 24; official class notice from Sacramento County Court]
But because ATLA and Kia Franklin have condemned Roy Pearson’s lawsuit as a frivolous abuse of justice, I am sure that they will have no compunction against issuing the same criticism against millionaire trial lawyer Tab Turner for bringing a much larger and socially harmful lawsuit that might bankrupt Ford on the same bogus “consumer fraud” legal theory that Pearson used. Of course, there’s a difference between Pearson and Turner: Turner is asking for more money, and his claim has less factual basis.
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