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AAJ

According to the U.S. Chamber-backed Legal NewsLine, the litigation lobby is quietly preparing to push through a $1.6 billion (with a “b”) tax break that would let contingent-fee lawyers deduct expenses as made, rather than in the year of settling a suit. American Association for Justice lobbyist Linda Lipsen says Sens. Harry Reid and Max Baucus and Reps. Nancy Pelosi and Charles Rangel are among those on board, as well as “some Republicans”, but “the problem is there is not a tax vehicle yet,” — “You cannot have a stand alone bill to help lawyers … so we have to tuck it into something.” [cross-posted, and slightly adapted, from Point of Law; updates and additional links there]

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Robert Ambrogi at Legal Blog Watch criticizes the trial lawyers’ association for excluding the press from its annual convention, but the tactic seems to have worked pretty well in lowering the group’s lobbying profile and deflecting serious coverage of the parade of politicians, from Nancy Pelosi to Henry Waxman to DNC chair and Virginia governor Tim Kaine, who have made the pilgrimage as speakers to pay their respects. More: AAJ’s response.

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She’ll be opening the AAJ annual convention tonight in San Francisco. Charles Krauthammer thinks the coziness between Big Law and certain parts of the political establishment may explain a lot about the faltering status of health care reform.

More: “Media Barred from Speaker Pelosi’s Speech to Trial Lawyers“. And John Steele Gordon at Commentary “Contentions” offers some ideas for health care reform that were probably not included in Pelosi’s speech.

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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.

…but not much reporting on them.

May 18 roundup

by Walter Olson on May 18, 2009

  • Historic preservation and habitat preservation laws can backfire in similar ways [Dubner, Freakonomics]
  • Serious points about wacky warnings [Bob Dorigo Jones, Detroit News]
  • Texas solons consider lengthening statute of limitations to save Yearning for Zion prosecutions [The Common Room]
  • A call for law bloggers to unite against content-swiping site [Scott Greenfield]
  • Drawbacks of CFC-free pulmonary inhalers leave asthma sufferers gasping [McArdle, Atlantic]
  • Try, try again: yet another academic proposal for charging gunmakers with costs of crime [Eggen/Culhane, SSRN, via Robinette/TortsProf] More/correction: not a new paper, just new to SSRN; see comments.
  • California businesses paid $17 million last year in bounty-hunting suits under Prop 65 [Cal Biz Lit]
  • Trial lawyer lobby AAJ puts out all-points bulletin to members: send us your horror stories so we can parade ‘em in the media! [ShopFloor]

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Brian Schweitzer speech to AAJ

by Walter Olson on September 12, 2008

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).

Aficionados of the John Edwards-Rielle Hunter scandal may have noticed a new attorney’s name cropping up in news reports: Lee Rohn of the U.S. Virgin Islands. From the New York Daily News:

One day before Edwards went public with the affair, Hunter and 6-month-old daughter Frances were flown to the Virgin Islands on a chartered jet, the Enquirer reported.

The $50,000 trip was paid for by friends of Edwards. The newspaper also said she stayed at the oceanfront home of another Edwards’ pal, lawyer Lee Rohn.

(Larry McShane, “John Edwards promised Rielle Hunter they’d be together – report”, Aug. 20)(via ABA Journal)(Update: Rohn vehemently denies the Enquirer story as false, saying she neither hosted Hunter nor is close to Edwards; see below). Readers may be wondering: is Rohn yet another attorney whose doings are going to make irresistible copy for a site like this, much as with Edwards chum/Democratic moneyman/perennial Overlawyered mentionee Fred Baron? To which the answer would appear to be, “you bet”:

St. Croix attorney Lee Rohn has stirred up a chorus of criticism and complaints about her professional practices both inside and outside the courtroom.

Her most vocal critics have been opposing parties or counsel in lawsuits she has filed. They have alleged a wide spectrum of professional conduct violations.

Among Rohn’s frequent targets is Innovative Communication Corp., which runs the Virgin Islands’ local telephone provider and the islands’ newspaper, and whose lawyers say they’ve lost count of how many times she’s sued them. The company’s chairman, Jeffrey Prosser, has called in vain for Rohn’s disbarment, complaining of “intolerable” and “abusive” instances of “ethical misconduct” as well as “vitriolic” public attacks: “In some cases with us, she coerced her clients to sign documents that were knowingly false [and] ignored judge’s orders on limits of discovery inquiry during depositions,” he wrote.

In 2002, Rohn publicly blasted one of the islands’ two federal district judges, Thomas Moore, accusing him of inappropriate behavior, and Moore recused himself from some of her cases citing the antipathy. Subsequently, after she moved to demand Moore’s recusal from yet another of her cases, he refused, stating in his written ruling, “I believe attorney Rohn’s personal attack on one of the two sitting judges in this jurisdiction was nothing more than a calculated litigation tactic that would be labeled ‘judge shopping’ in most places.” Moore, who has sanctioned Rohn for insulting and profane language toward witnesses and court personnel, wrote in another case, in which the Caribbean Geoffrey Fieger “sought to compel testimony from all the federal judges in the territory”:

“Nothing Lee Rohn does surprises me anymore, although subpoenaing all the federal judges in the jurisdiction is a high point of ingenuity and creativity in attempting to manipulate the system,” Moore wrote.

“I do not believe, however, that an attorney should be allowed to use her calculated personal attack on a sitting judge as a technique to prevent that judge from presiding over any of her cases, especially in a small district with only two judges.”

A few weeks ago, it may be recalled, we looked at the question of lawyers’ public denunciations of judges and whether they do or should result in recusal by those judges. (Jason Robbins and Lee Williams, “From judges to opponents, Rohn has no shortage of harsh critics”, Virgin Islands Daily News, Mar. 29, 2004 — the newspaper, it bears repeating, and its parent company have been frequent targets of Rohn’s litigation, as in this libel case arising from her airport pot bust). Death by a Thousand Paper Cuts has more, including a picture of the Rohn villa.

The National Enquirer, which keeps breaking new developments in the story, is now reporting that “a team of six more lawyers have been involved in the coverup”. They can’t all be as interesting as Baron and Rohn, can they?

Update Fri. 8:20 p.m.: the Daily News reports Rohn categorically denies the story’s truth:

The Enquirer quoted Virgin Island pol Anne Golden as saying Hunter stayed for 10 days in an oceanfront home owned by prominent St. Croix lawyer Lee Rohn.

Rohn hotly denied that to the Daily News and vowed to sue.

“It is absolutely false,” she told The News. “The Enquirer knows the story is not true as they sat on a hill above my house for a week with telephoto lenses and video cameras and had no sighting of her. The guest cottage she was supposedly staying in is under construction and has no floor.”

Rohn said that while she donated money to Edwards, she is not friends with him. Records show she gave $2,300 to Edwards a year ago and another $2,300 to Barack Obama early this year.

(Helen Kennedy, “John’s island girl Rielle fled to St. Croix on eve of cheating flap”, Aug. 21). And — hat tip to commenter Ken Floyd — the opinions of heated Rohn critic Jeffrey Prosser, the newspaper/telephone magnate, should be evaluated in the perspective of his own controversial and colorful business record, which recently culminated in high-profile bankruptcy proceedings involving his Innovative Communication empire. Some sources on that here, here, here, and here. For more background on the recusal disputes involving Rohn and Judge Thomas K. Moore, see this Moore opinion (U.S. v. Roebuck, PDF) and this Third Circuit opinion (Selkridge v. Mutual of Omaha, 360 F. 3d 155). DBKP wishes it had been a fly on the wall during an AAJ award ceremony honoring Rohn. And see commenter #7 below who seems to have been doing considerable digging.

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July 25 roundup

by Walter Olson on July 25, 2008

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May 28 roundup

by Walter Olson on May 28, 2008

  • More on that New Mexico claim of “electro-sensitive” Wi-Fi allergy: quoted complainant is a longtime activist who’s written an anti-microwave book [VNUNet, USA Today "On Deadline" via ABA Journal]
  • Your wisecracks belong to us: “Giant Wall of Legal Disclaimers” at Monsters Inc. Laugh Floor at Disneyland [Lileks; h/t Carter Wood]
  • New at Point of Law: AAJ commissions a poll on arbitration and gets the results it wants; carbon nanotubes, tomorrow’s asbestos? California will require lawyers operating without professional liability insurance to inform clients of that fact (earlier here and here); and much more.
  • Actuaries being sued for underestimating funding woes of public pension plans [NY Times via ABA Journal]
  • City of Santa Monica and other defendants will pay $21 million to wrap up lawsuits from elderly driver’s 2003 rampage through downtown farmers’ market [L.A. Times; earlier]
  • Sequel to Giants Stadium/Aramark dramshop case, which won a gigantic award later set aside, is fee claim by fired lawyer for plaintiff [NJLJ; Rosemarie Arnold site]
  • Privacy law with an asterisk: federal law curbing access to drivers license databases has exemption that lets lawyers purchase personal data to help in litigation [Daily Business Review]
  • Terror of FEMA: formaldehyde in Katrina trailers looks to emerge as mass toxic injury claim, and maybe we’ll find out fifteen years hence whether there was anything to it [AP/NOCB]
  • Suit by “ABC” firm alleges that Yellow Book let other advertisers improperly sneak in with earlier alphabetical entries [Madison County Record]
  • Gun law compliance, something for the little people? A tale from Chicago’s Board of Aldermen [Sun-Times, Ald. Richard Mell]
  • Think twice about commissioning a mural for your building since federal law may restrain you from reclaiming the wall at a later date [four years ago on Overlawyered]

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New at Point of Law

by Walter Olson on April 23, 2008

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.

February 11 roundup

by Walter Olson on February 11, 2008

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Aides to candidates Clinton and Obama feverishly work an AAJ/ATLA trial lawyers’ conclave down Puerto Rico way, sensing that the money behind the flagging John Edwards candidacy may be “looking for a new candidate to get behind”. It’s “a testament to the crucial role played by the legal profession in Democratic fundraising. Trial lawyers have proved to be the financial mainstay for Edwards’s two presidential bids, as well as for the Democratic Party in general.” Quotes longtime Overlawyered favorites Fred Baron, Thomas Girardi and Robert Montgomery (Matthew Mosk, “Top Candidates’ Teams Look to the Lawyers”, Washington Post, Jan. 28).

Democratic front-runner (if it’s okay to call him that now) Barack Obama tells a Newton, Iowa audience about his early decisions to pursue civil rights, community organizing and public office rather than more lucrative legal specialties, and is blasted in parts of the lefty blogosphere for the implied dig at John Edwards. (Shailagh Murray, Washington Post “The Trail”, Dec. 30; Kos, TPM, Kia Franklin, etc.) Per the Washington Post’s Chris Cillizza, “Obama is starting to use the term ‘trial lawyer’ more often on the stump to describe Edwards, perhaps hoping to capitalize on the negative associations many voters have with that particular profession.” (“The Trail”, Dec. 31).

P.S. Some highlights of our earlier Obama coverage: Aug. 5, 2004 (“Anyone who denies there’s a crisis with medical malpractice insurance is probably a trial lawyer”); Apr. 10, 2007 (making inroads nonetheless on Edwards’ trial-lawyer donor base; per Legal Times, “Despite Obama’s silence on the issues trial lawyers care about, those who support him say they are confident he will back trial lawyers when the time comes”); Jul. 31 and Aug. 5 (auditions at AAJ/ATLA convention). P.P.S. Plus Ted at Point of Law a year back (“far from convinced” that Obama will cross the trial bar, despite his vote for the Class Action Fairness Act).

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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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Federici v. U-Haul

by Jason Barney on October 25, 2007

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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October 10 roundup

by Walter Olson on October 10, 2007

  • She wore a wire: defense attorney says administrative assistant to one of the three lawyers in Kentucky fen-phen scandal worked as FBI mole, circumventing attorney-client privilege [AP, Courier-Journal, Lexington Herald-Leader, ABA Journal]
  • Suing a lawyer because his deposition questions inflicted emotional distress? No way we’re going to open those floodgates, says court [NJLJ]
  • Counsel Financial Services LLC, which stakes injury lawyers pending their paydays, says it’s “the largest provider of attorney loans in the United States and the only Law Firm Financing company endorsed by the AAJ (formerly ATLA)”; its friendly public face is a retired N.Y. judge while its founder is attorney Joseph DiNardo, suspended from practice in 2000 “after pleading guilty to filing a false federal tax return” and whose own lend-to-litigants operation, Plaintiff Support Services, shares an office suite with Counsel [Buffalo News] The firm’s current listing of executives includes no mention of DiNardo, though a Jul. 19 GoogleCached version has him listed as President;
  • Patent litigation over cardiac stents criticized as “a horrendous waste of money” [N.Y. Times]
  • More on the “pro bono road to riches”, this time from a California tenant case [Greg May, Cal Blog of Appeal]
  • Not a new problem, but still one worth worrying about: what lawyers can do with charitable trusts when no one’s looking over their shoulder [N.Y. Times via ABA Journal]
  • Has it suddenly turned legal to stage massive disruptions of rush-hour traffic, or are serial-lawbreaking cyclists “Critical Mass” just considered above the law? [Kersten @ Star-Tribune]
  • “Look whose head is on a plate now”: no tears shed for fallen Lerach by attorney who fought him in the celebrated Fischel case [ChicTrib, San Diego U-T]
  • “Jena Six” mythos obscures graver injustice to black defendants, namely criminal system’s imposition of long sentences for nonviolent offenses [Stuart Taylor, Jr. @ National Journal -- will rotate off site]
  • Economist David Henderson on restaurant smoking bans [Econ Journal Watch, PDF, via Sullum, Reason "Hit and Run"]
  • Technical note: we learned from reader Christian Southwick that our roundups were displaying poorly on Internet Explorer (Ted and I use other browsers) and we found a way to fix. So, IE users, please drop us a line when you encounter problems — we may not hear about them otherwise.

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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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