Posts Tagged ‘ATRA’

The $65 million pants: Judge Roy Pearson update

(Earlier.) Commenter Becky points us to this Sherman Joyce letter in the Examiner, to which we have added hyperlinks:

Dear Judge Butler and Commissioners Rigsby, Levine and Wilner:

On behalf of the American Tort Reform Association, which works to combat lawsuit abuse, I urge you to carefully reconsider the reappointment of Administrative Law Judge Roy Pearson Jr. to a 10-year term, scheduled to commence in three days on May 2.

As you are almost surely aware by now, thanks to extensive local and national media coverage, Judge Pearson has chosen to exploit the District’s well-intentioned but loosely worded Consumer Protection and Procedures Act in suing a family-owned D.C. dry cleaner for more than $65 million — over a lost pair of suit pants.

Though the pants have long since been found and made available to him, Judge Pearson has stubbornly continued to waste precious Superior Court resources in a clearly misguided effort to extort a hardworking family that provides a service to its community and tax revenue to the District government.

In a letter to the editor in today’s Washington Post, former National Labors Relations Board chief administrative law judge Melvin Welles urged “any bar to which Mr. Pearson belongs to immediately disbar him and the District to remove him from his position as an administrative law judge.”

To those of us who carefully study the litigation industry’s growing abuse of consumer protection laws around the country (see ATRA general counsel Victor Schwartz’s recent article from Executive Counsel magazine, “Consumer Protection Acts Are a Springboard for Lawsuit Abuse,” enclosed) and to everyday D.C. taxpayers who collectively provide Pearson with a considerable salary, his persistence in this lawsuit raises serious question about his capacity to serve the city as a “fair, impartial, effective, and efficient” judge, as required by the Office of Administrative Hearings Establishment Act.

If Pearson goes ahead with his lawsuit, any party who comes before him in future administrative hearings could understandably lack confidence in his judgment and judicial temperament. Furthermore, this case will become fodder for late-night comics, various members of Congress and other assorted critics of D.C. government if this case, scheduled for trial June 11, remains in the headlines.

Judicial temperament is a critical characteristic of an outstanding jurist. Any individual who chooses to pursue a case such as Pearson’s, at a minimum, calls into question his or her’s. As you consider his reappointment, we strongly urge you to examine closely his judicial temperament and decide whether it is sufficient to serve the people of the District of Columbia properly as an administrative law judge.

Pearson has a litigation history; commenter Monica points us to this reported opinion stemming from his divorce.

Update, May 2, from ABC News:

[The Chungs] have spent thousands of dollars defending themselves against Pearson’s lawsuit.

“It’s not humorous, not funny and nobody would have thought that something like this would have happened,” Soo Chung told ABC News through an interpreter.

Her husband agreed.

“It’s affecting us first of all financially, because of all the lawyers’ fees,” Jin Chung said. “For two years, we’ve been paying lawyer fees… we’ve gotten bad credit as well, and secondly, it’s been difficult mentally and physically because of the level of stress.”

April 25 roundup

Trial lawyer’s macaca moment?

Michael Kinsley famously defined a “gaffe” as when a politician accidentally tells the truth. If so, plaintiff’s lawyer Anthony Buzbee committed an awfully big gaffe last year (caught on tape!), as Peter Lattman explains in the Wall Street Journal’s Law Blog (See also W$J). It’s an open secret that trial lawyers venue shop for the best possible jurisdiction to file a lawsuit, but they rarely describe it openly, particularly in stark racial terms:

“That venue probably adds about seventy-five percent to the value of the case,” he said. “You’ve got an injured Hispanic client, you’ve got a completely Hispanic jury, and you’ve got an Hispanic judge. All right. That’s how it is.”

In other parts of Texas, Buzbee went on, a plaintiff may have the burden of showing “here’s what the company did wrong, all right? But when you’re in Starr County, traditionally, you need to just show that the guy was working, and he was hurt. And that’s the hurdle: Just prove that he wasn’t hurt at Wal-Mart, buying something on his off time, and traditionally, you win those cases.”

I guess tort reformers won’t get any debate from Buzbee when they describe places like Starr County as judicial hellholes (PDF).

Buzbee’s a trial lawyer, not a politician, so his reaction is entirely predictable: as per the Galveston County Daily News (and press release from Buzbee’s lawyers), Buzbee is suing the people who ran the seminar and those who allegedly taped him, claiming that he agreed to give his talk on the condition that it not be recorded, and further claiming that circulating the tape was done to “damage his career.” It seems to me that “The truth will damage my career” is perhaps not the smartest p.r. strategy, but I guess we’ll see how his suit goes.

“Trial Lawyers Inc. — Illinois”

At Point of Law (Oct. 18), Jim Copland announces a new report from the Manhattan Institute’s Trial Lawyers Inc. project:

This afternoon, the Manhattan Institute released Trial Lawyers, Inc.: Illinois, A Report on the Lawsuit Industry in Illinois 2006. The first comprehensive look at litigation in the Prairie State, the report synthesizes work done by the Illinois Civil Justice League, American Tort Reform Association, and U.S. Chamber Institute for Legal Reform, among others. The report also includes new information, such as the percentage of 2004 contributions to the Illinois State Democratic Party that came from plaintiffs’ lawyers and their firms (78 percent) and Illinois’ quantitative rank in terms of its medical-malpractice liability as a percentage of gross state product (49th of the 50 states) and its corporations’ self-insured liability as a percentage of GSP (48th).

The Madison County Record has already reported on the new study here.

More coverage: Adam Jadhav, “Metro East courts have improved somewhat, think tank concludes”, St. Louis Post-Dispatch, Oct. 19.

Great moments in lawyer discipline

Way back in 2000, a Texas trial judge dismissed a $2 billion products liability suit against DaimlerChrysler and imposed sanctions of $865,000 on San Antonio attorney Robert Kugle and two associates at his firm, Andrew Toscano and Robert “Trey” Wilson III, also referring the matter to the State Bar of Texas for possible disciplinary action. As we summarized the episode in our post of Jul. 20, 2003, the judge found “that the steering decoupler of the sued-over Dodge Neon had been altered to simulate mechanical failure and that Mexican policemen had been asked to change their accounts of the accident giving rise to the suit. An appeals court called the firm’s conduct ‘an egregious example of the worst kind of abuse of the judicial system.'” Now, six years later, the leisurely process of state bar discipline still hasn’t run its course in Toscano’s case, Wilson drew a two-year probated suspension, and both men are practicing law in San Antonio. The American Tort Reform Association doesn’t think that’s a suitable outcome. (Mary Alice Robbins, “‘Texas Justice Massacre’ Billboard Targets Attorney’s Alleged Misconduct”, Texas Lawyer, Jul. 5; David Shepardson, “Chrysler takes fight to lawyers”, Detroit News, Mar. 21).

On Hellholes

Madison County plaintiffs’ lawyer Evan Schaeffer writes, partially tongue in cheek:

Meanwhile, I’m working on a propaganda campaign of my own. I’m going to take ATRA’s term and turn it on its head. Rather than “judicial hellholes,” I’ll be focusing on those jurisdictions in which the playing field is tilted in favor of big business. I’m calling them “consumer hellholes.” What do you think?

Unfortunately for Evan, there will never be a proper analogue; in these hypothetical “hellholes”, even if they exist, consumers that prefer a court system unfairly biased towards plaintiffs can completely avoid the effects of reform by moving to such a jurisdiction. If tort reform really makes people worse off, then people will leave the states with reform for the states where the plaintiffs’ bar controls one of the three branches. In contrast, businesses have very little power to avoid being sued in judicial hellholes; and consumers who don’t live in the judicial hellhole have little ability to escape the detrimental effects that the hellhole has in crafting nationwide liability. The $500 “tort tax” on automobiles that covers the cost of the liability system has to be paid whereever a car is sold because the manufacturer can’t bar the buyer from taking the car into the hellhole forum.

What bothers the ATLA-ites is that consumers have shown that they prefer tort reform, and the benefits tort reform brings: judicial hellholes are consumer hellholes, because we all bear the costs of runaway litigation and its effect on the economy.

Update: “Maag’s defamation suit is dismissed again”

Watch what you say about judges, yet again: For the second time, Illinois circuit court judge Patrick Kelley has dismissed a $110 million defamation lawsuit filed by former Madison County appellate judge Gordon Maag against groups that criticized him during his unsuccessful 2004 double run for a seat on the Illinois Supreme Court and for retention in his existing seat. Maag’s attorney, Rex Carr, vowed to appeal. (Paul Hampel, St. Louis Post-Dispatch, Jan. 9; Steve Gonzalez, “Maag’s defamation suit dismissed, again”, St. Clair Record, Jan. 9; “That’s two strikes, now spare us” (editorial), Madison Record, Jan. 15). Since losing the races, Maag has aimed defamation suits at a wide range of local and national groups that include the Chicagoland Chamber of Commerce, the American Tort Reform Association and even the Manhattan Institute for Policy Research, with which I’m affiliated (no, I don’t know what his theory for including it was, and I haven’t asked). For more on the controversy, see Dec. 23, 2004, as well as PoL Jun. 10, 2005 and assorted links there.

As usual, the funniest piece on the controversy came from the wonderful (and brave) columnist for the St. Louis Post-Dispatch, Bill McClellan, who explains that he is not among Judge Maag’s critics (after all, who likes getting sued?) but notices that “there seems to be some question as to whether he is a resident of Illinois, as he stated in one of his suits, or a resident of Alabama, as he stated in another.” (“With confusion over residency, lawyer’s critics feel vindicated”, Nov. 25).

Winnebago/Stella Award myths, pt. 4

Reader Gerald Affeldt writes:

I first heard a version of the “Winnebago cruise control” story while I was in the Navy stationed at Whiting Field in Milton, Fla. in 1977. And I’ve heard different versions of it over the years.

The earliest version I heard, as well as a number of later versions, had an ethnic angle. At the time, the U.S. Navy was training pilots for the Shah of Iran, and what with language and customs difference, the trainees weren’t considered technically acute. So the first version of the story I heard was of a supposed Iranian driver. Over the years versions I heard involved a number of other ethnic groups. Just plug in who you wanted.

In the first version I heard, the vehicle was a conversion van. Bed in the back, couple of captain chairs and large mural on the side. Didn’t start hearing motorhome versions till the 90’s. So I guess it’s plug in the popular large vehicle of the time.

In the early versions, the point of the story was just that the driver was too dumb to know cruise control wasn’t the same as an autopilot. I never heard of a lawyer being involved until a few years ago. Guess the story’s age was showing and it needed spicing up.

Most people telling it thought it was true. A friend had seen it in a paper, etc. I guess the whole story works because of the number of stupid people in the world.

For those who came in late, the L.A. Times on Sunday printed a prominent piece on the Winnebago and other “Stella Award” tall tales, which it suggested were “fabrications” spread by the tort reform movement (see Ted’s and my take on the story, as well as our four-year-old debunking of the tales themselves with credit to Snopes). Regarding Mr. Affeldt’s recollections, a few observations:

* You’d think before running an article suggesting that the tales’ wide circulation over the Net reflects a campaign of purposeful disinformation, L.A. Times reporter Myron Levin might have done a little digging into the origins of the tales to find out things like where and when the earliest sightings occur. But there’s scant sign that he did.

* As a visit to the generally excellent urban-legends site Snopes.com will make clear, it’s typical of garden-variety urban legends — the kind whose circulation reflects mere credulity on the part of reader/forwarders, as opposed to a conscious plot to hoodwink the public — that they are older than the tale-tellers realize them to be, and have gone through mutations reflecting what in musicology would be called the folk process.

* To be sure, Mr. Affeldt’s recollections do not conclusively refute the ATLA/L.A. Times thesis that the Winnebago and similar tales have been purposely fabricated. After all, even if there were already an urban legend in wide circulation about a clueless driver’s mistaking cruise control for autopilot, it’s conceivable that the plotters came up with the sly stroke of inserting a lawsuit into the narrative as part of their unceasing efforts to sap public confidence in the U.S. legal system. Of course, it bears repeating that ATLA-‘n’-L.A.T. have offered zero evidence of any such thing happening.

* One other thing missing from the L.A. Times account: any showing that the lawsuit-reform groups mentioned, such as ATRA and Common Good, or any similarly prominent group, have in fact circulated the Winnebago/Stella Award stories at all. Credulity being part of the human condition, of course, there are no doubt instances where the newsletter editor of the East Kankakee Citizens for Lawsuit Reform was taken in by a Stella email from his Aunt Fran and passed it along. That the L.A. Times piece does not adduce even one instance of serious backing from such groups should have raised a flag about the quote from Prof. Turley claiming that such stories have been devised with “skill” for purposes of “influencing policy”.

* Thanks to Patterico, Gail Heriot and Southern California Law Blog for linking to our earlier discussion. Among some bloggers of an opposite persuasion, the L.A. Times piece seems to have come as a confirmation of their own dearly held preconceptions on the subject, as with Ezra Klein, John Cole, and Mr. Furious, to some of whose comments sections Ted has paid a visit.

Center for Justice & Democracy’s Zany “Zany Immunity Law Awards”

Many farmers use anhydrous ammonia as fertilizer, because it provides vital nitrogen nutrients to the soil. The combustible material is produced in Louisiana, and then shipped to the Midwest on barges or through pipelines, and then stored on tanks on farms. However, ammonia is also useful for making illegal methamphetamines, and thefts are a regular problem. (KOMU-TV, “Law Officers Fight Ammonia Thefts”, May 19). If a thief injures himself tampering with an ammonia tank, should he be able to sue the farmer for the injury? Three states, Kansas, Missouri, and Wyoming, say no, and provide immunity for those who store, handle, or own ammonia equipment from suit by thieves. Legislatures are considering the issue in other midwestern states.

The misnamed anti-tort reform Center for Justice & Democracy has noticed the success of the ATRA’s judicial hellhole campaign (Dec. 15; Dec. 3, 2003), and decided to respond with its own report, the “Zany Immunity Law Awards”, intended to single out “special interests” who opportunistically subvert the legislative system to get improper immunity from liability. The cover shows a legislator receiving a statuette, cash in his pocket, and roses with a ribbon labeled “Sleaziest Legislation.”

Exposing sleazy special-interest immunity laws is a noble sentiment–but it’s a sure sign of how few and far between such laws are that CJD singles out the sensible anhydrous ammonia immunity laws for its top ten list. The CJD incorrectly blames the law on a supposed “anhydrous ammonia business lobby”; in fact, it’s groups like the Michigan Farm Bureau that push for laws like Michigan S.B. 786. Indeed, the only group to oppose such laws? Trial lawyers’ lobbying groups. See also Kelly Lenz, “Fertilizer law to help farmers”, Farm and Auction, Jun. 12, 2002.

How ridiculous are the CJD awards? One of the top ten “zany immunity laws” refers to “immunity” granted to placebo manufacturers and distributors. Except the immunity in question isn’t immunity–it’s an exception to a criminal statute prohibiting the sale of fake drugs! E.g., Fla. Stat. 817.564(6)(a). (This is the only appearance of the word “placebo” in the Florida Code. It’s telling that CJD omits the statutory cite in its footnotes.) Perhaps this law is zany, but it’s hardly an example of a special interest group buying sleazy legislation that damages consumers. A subject of a research test who is injured by adulterated placebos (has this ever happened?) will still have a cause of action.

Read On…