Lawyer Robert Bundy, representing a key witness at the Ted Stevens trial, is said to be all “torn up” about the judge’s accusation that he was transmitting secret nods and movements to convey to his client what testimony was desirable. Eric Turkewitz says that in his experience coaching during testimony takes three forms: “speaking objections”, nods and head movements (which may be unconscious), and deliberate signaling. (Oct. 7; AP/Google).
MDL Judge Eldon Fallon orders plaintiffs’ attorneys’ fees in the $4.85 billion settlement to be capped at 32%. Hooray, right? Certainly, the trial bar is capable of arguing for itself that the ruling is wrong and it is entitled to a couple of hundred million more, but I might just have to take their side here.
The Louisiana Attorney Disciplinary Board’s charges against attorney John M. Sharp, formerly managing partner in the firm Sharp Henry Cerniglia Colvin Weaver & Davis, may possibly recall the old joke: lawyer finds satchel of someone’s misplaced cash, followed by wrenching dilemma of legal ethics: should he tell the partners? (Karina Donica, “Attorney involved in city-Cleco case faces possible disbarment”, Town Talk (Alexandria, La.), Aug. 22)(via ABA Journal).
Lester Brickman has a new must-read paper on an under-reported problem:
Lawyers obtain the “mass” for some mass tort litigations by conducting screenings to sign-up potential litigants en masse. These “litigation screenings” have no intended medical benefit. Screenings are mostly held in motels, shopping center parking lots, local union offices and lawyers’ offices. There, an occupational history is taken by persons with no medical training, a doctor may do a cursory physical exam, and medical technicians administer tests, including X-rays, pulmonary function tests, echocardiograms and blood tests. The sole purpose of screenings is to generate “medical” evidence of the existence of an injury to be attributed to exposure to or ingestion of defendants’ products. Usually a handful of doctors (”litigation doctors”) provide the vast majority of the thousands and tens of thousands of medical reports prepared for that litigation.
By my count, approximately 1,500,000 potential litigants have been screened in the asbestos, silica, fen-phen (diet drugs), silicone breast implant, and welding fume litigations. Litigation doctors found that approximately 1,000,000 of those screened had the requisite condition that could qualify for compensation, such as asbestosis, silicosis, moderate mitral or mild aortic value regurgitation or a neurological disorder. I further estimate that lawyers have spent at least $500 million and as much as $1 billion to conduct these litigation screenings, paying litigation doctors and screening companies well in excess of $250 million, and obtaining contingency fees well in excess of $13 billion.
On the basis of the evidence I review in this article, I conclude that approximately 900,000 of the 1,000,000 claims generated were based on “diagnoses” of the type that U.S. District Court Judge Janis Jack, in the silica MDL, found were “manufactured for money.”
Despite the considerable evidence I review that most of the “medical” evidence produced by litigation screenings is at least specious, I find that there is no effective mechanism in the civil justice system for reliably detecting or deterring this claim generation process. Indeed, I demonstrate how the civil justice system erects significant impediments to even exposing the specious claim generation methods used in litigation screenings. Furthermore, I present evidence that bankruptcy courts adjudicating asbestos related bankruptcies have effectively legitimized the use of these litigation screenings. I also present evidence that the criminal justice system has conferred immunity on the litigation doctors and the lawyers that hire them, granting them a special dispensation to advance specious claims.
Finally, I discuss various strategies that need to be adopted to counter this assault on the integrity of the civil justice system.
Here’s a good article on the American practice of allowing litigants to hire their own experts. Each expert advocates a position favorable to “their” side often rendering the dueling experts’ opinions of limited usefulness to the jury. Other countries implement different mechanisms for engaging expert testimony including having the judge select the expert. That sounds less partisan and cheaper, too. (“In U.S., Expert Witnesses Are Partisan”, The New York Times, Aug. 11).
And, I’m reminded of Ron Coleman’s post where he quotes an article describing hired experts as “witnesses having other rational explanations”. (Try the acronym and you’ll get it).
Instead, consult higher-ups at the law firm orally about the mistake. Such at least is the advice attorneys are getting, per the ABA Journal (channeling New York Lawyer). Perhaps it’s time for a “Sorry Works” movement to encourage errant lawyers to do the right thing?
Class actions of the lawyers, by the lawyers, for the lawyers? To quote the Law.com summary: “A federal judge has rejected a proposed co-lead plaintiff for the Monster Worldwide securities fraud class action because the representative knew nothing about the case. Southern District of New York Judge Jed Rakoff had some pointed words for lead plaintiffs counsel Labaton Sucharow, saying the Steamship Trade Association International Longshoremen’s Pension Fund was ’simply the willing pawn of counsel’ because it ‘has no interest in, genuine knowledge of, and/or meaningful involvement in this case.’” Judge Rakoff noted that pension fund co-chairman Horace Alston had represented himself under oath as the fund’s most knowledgeable person about the suit. “However, Mr. Alston then testified that he did not know the name of the stock at issue in this case, did not know the name of either individual defendant, did not know whether STA-ILA ever owned Monster stock, did not know if an amended complaint had been filed, did not know whether he had ever seen any complaint in the action,” leading Judge Rakoff to declare that he would “not be party to a sham.” (Mark Hamblett, “Lead Plaintiff Pick Rejected as Merely ‘Pawn of Counsel’”, New York Law Journal, Jul. 17).
Melbourne Mills’s defense that he was too drunk to know what was going on when he and two other attorneys stole tens of millions of dollars appears to have created reasonable doubt in the mind of a Kentucky jury. Mills may have been helped by the revelation that his two co-counsel tried to hide $50 million from him, too, permitting his attorney to more plausibly blame the scheme on others. Or the jury may have believed the argument of Mills’s attorney that the three attorneys were too stupid to understand the settlement agreement and didn’t intend to steal any money (though they transferred a lot of money from their personal account to their clients when they learned the bar was investigating, and lied to the bar about how much money their clients received). (Jim Hannah, “One cleared in diet drug case”, Cincinnati Enquirer, Jul. 2; Beth Musgrave, “Fen-phen lawyer Mills is found not guilty”, Lexington Herald-Leader, Jul. 2; Beth Musgrave, “Jury hears closing arguments in fen-phen trial”, Lexington Herald-Leader, Jun. 24; AP/Kentucky Post, Jun. 23). The jury, today in its seventh day of deliberations, claims a deadlock on the other two attorneys, no doubt confused by why Judge Jay Bamberger and co-counsel and Democratic bigwig Stanley Chesley have not also been indicted. Defendants Cunningham and Gallion have sought to blame the tens of millions they stole on the fact that Bamberger (who was indirectly paid millions) judicially approved the settlement and Chesley (who was directly paid tens of millions) was allegedly the architect of the settlement that ensured lawyers would get far more than their contracts with their clients provided. Since there is no dispute that those two were indeed intimately involved in the scheme, the jury isn’t the only one confused why the Kentucky fen-phen three are being treated differently than the judge, the judge’s former law partner, and Stan Chesley, who all profited mightily.
Wired magazine (May) carries this bit of advice from attorney David Brown, author of Beat Your Ticket:
3. Stall. Two weeks before your trial, request a continuance from the court clerk. The longer you delay, the more likely the officer won’t be able to attend, which should result in a dismissal if you ask for one.
Question: is it ethical to advise clients to ask for continuances with the purely tactical aim of increasing the burden on an opponent, as opposed to the more aboveboard reasons one might have for such a request?
The editors at Conde Nast Portfolio were kind enough to invite me to contribute a rebuttal, which is now online, to William Lerach’s egregious apologia pro crookery sua. The allotted space permits me to address briefly only a couple of Lerach’s worst howlers, in particular his bald assertions that his concealed kickbacks did no harm to class members or to competing lawyers. (It’s true that named class representatives do a very poor job at their intended mission of standing in for other class members’ interests, but secretly aligning their incentives with the size of fee awards, rather than the value of the settlement to the class, is a corruption meant to keep them from ever living up to their theoretical watchdog role.)
For a more extended look at what’s wrong with Lerach’s article, let me recommend Joseph Nocera’s excellent column a week ago in the Times:
In the article, Mr. Lerach expresses zero remorse, positions his crimes as having hurt no one while serving a greater good and makes the absurd claim that he was railroaded by his political opponents.It is a brazen, shameful piece of work — and it must infuriate the prosecutors who made the plea agreement with him, and the judge who accepted it, especially since Mr. Lerach wrote his own remorseful letter to the judge ahead of his sentencing. It also ought to infuriate anyone who cares about the law. Plenty of criminals head to prison still believing they’re above the law, but Mr. Lerach takes the cake.
Ted Frank has some further thoughts on that point. And note (from Nocera) that Lerach’s “everyone did it” swipes at his colleagues — which many, including we, have read as grounds for an investigation — are by no means passing without contradiction from colleagues:
Mr. Lerach’s statement has infuriated other plaintiffs’ lawyers. “It would just be unthinkable” to give kickbacks to lead plaintiffs, said Max Berger, of the firm Bernstein, Litowitz, Berger & Grossman. Added Sean Coffey, another Bernstein, Litowitz partner: “It is bad enough that this confessed criminal cheated for years to get an unfair advantage over his rival firms. But for this guy, on his way to prison, to say that everyone does it is just beyond the pale.”
(cross-posted from Point of Law; & welcome San Diego Union-Tribune blog readers).
P.S.: For another example of just how slippery Lerach’s careful phrasings can be, check this Roger Parloff post from an earlier point in the scandal. And Stephanie Mencimer, whose writings are nearly always criticized in this space, deserves due credit for seeing through Lerach’s “liberal folk-hero status” to the “pretty sleazy” realities beneath in this February article.
William Gallion takes the stand in the Kentucky fen-phen settlement criminal trial:
Mark Lanier and other plaintiffs lawyers are giving a series of interviews where they complain that the Ernst v. Merck decision (discussed yesterday) is “judicial activism that reinterprets the evidence.” (E.g., in Texas Lawyer.) This is nonsense. Ernst follows well-stated precedent. Indeed, I predicted precisely this result and precisely the case the appellate court would use to strike down the decision the week of the jury’s verdict.
Here’s your $3 million bonus, young man, and whatever you do, don’t tell the clients how much the case settled for (Jim Hannah, “Fen-phen lawyer details bonus”, Cincinnati Enquirer, May 15; earlier)(via Slater, WSJ law blog).
We’ve had a lot of Montgomery Blair Sibley coverage over the years:
And we didn’t even mention his work representing Larry Sinclair (the fellow who unsuccessfully sued Barack Obama for denying Sinclair’s implausible claim that he had engaged in a homosexual tryst with him) in a lawsuit against three anonymous bloggers. (DBKP blog, Mar. 14.)
After years of over-the-top abusive litigation, the state bar finally took action, and he has been suspended by the Florida bar for three years. No doubt, this will result in a new round of frivolous pro se collateral litigation. It took a contempt-of-court citation for failure to pay child support before the Florida bar took action, so this can hardly be considered a rousing success of the bar in policing its own, even for someone as over-the-top as Sibley. (Florida Bar v. Sibley; ABA Journal, Apr. 25; MPGS blog, May 14; h/t S.G.).
Update: Two commenters (who never appeared on Overlawyered before) implausibly defend Sibley, both posting from BellSouth accounts in Atlanta, GA. Nothing about a divorce requires one to sue seven Supreme Court justices for “judicial treason” for denying a (frivolous) certiorari petition from a frivolous lawsuit. He should have been disbarred a long time ago; that he is only being suspended, and then only because of failure to obey court orders, is appalling. He’s been a hazard to his clients and to taxpayers; so, no, I don’t think he’s a “damn good lawyer.”
Update, May 16, 2:45 AM: We originally repeated a second-hand report sent to us that Sibley had also been suspended in DC as part of reciprocal discipline. It is possible that our correspondent confused a Rule 8.1 report, made by the DC Bar counsel recommending reciprocal suspension, with an actual suspension. If a Rule 8.1 report was filed, Sibley is entitled to file a response; no oral argument is scheduled at this time (though none is required to be scheduled) and no DC Board on Professional Responsibility report is listed as having issued with respect to Sibley. Rule 8.4 of the DC Board on Professional Responsibility Rules of Procedure is titled “Conclusive Effect of Adjudication in Other Jurisdiction,” which would appear to give Sibley nothing to argue in DC, and would likely make discipline inevitable, but the District of Columbia, in its typical competence, has posted the wrong text for 8.4 on its website, so I cannot say that for certain. Montgomery Sibley is, as of May 16, still listed on the DC Bar’s website as a member in good standing. If the error is ours, rather than that of the DC Bar website, we regret the error. Without written confirmation of the suspension, we retract the original statement that the DC Bar has suspended Sibley in response to the Florida bar’s three-year suspension of Sibley.
Update, May 20: We were right the first time.
Asbestos litigation has been around a long time. Early on, nothing like modern product liability law existed (see Richard Epstein’s discussion here); lawsuits resided in workplace injury law when filed in the 1920s and 30s, and were soon subsumed in workers compensation reforms.
Modern asbestos litigation began after the Selikoff study was published in 1964. In December 1965, Texas attorney Ward Stephenson filed a case on behalf of Claude Tomplait, who had worked as an asbestos insulator. Four years later, Stephenson extracted a settlement for $75,000 from seven defendants.
Notwithstanding this meager beginning, Stephenson persisted in asbestos litigation and won a major victory in Borel v. Fibreboard Paper Products Corp., 493 F.2d 1076 (1973), in which the Fifth Circuit Court of Appeals found asbestos manufacturers strictly liable for their workers’ injuries. The Borel court rejected statute of limitations, contributory negligence, and assumption of risk defenses; and modern asbestos product liability litigation was born.
The litigation got another shot in the arm when New Jersey attorney Karl Asch uncovered the “Sumner-Simpson papers,” which “described in great detail the efforts of Raybestos, Johns-Manville, and other manufacturers to find out about the hazards of asbestos, develop strategies to deal with them, and–most important–to keep that knowledge from the public and workers.” These documents were put to great effect by South Carolina lawyer Ron Motley, who actually used the papers to convince a South Carolina circuit judge to grant a new trial after a jury had ruled in favor of asbestos defendants. Motley of course went on to become an asbestos super-lawyer and an architect of the multibillion-dollar multistate tobacco settlement; his antics are well-known to long-time readers of this site.
Two more foundational cases are worthy of mention. In 1981, the D.C. Circuit ruled that insurers who had written asbestos policies were liable for the maximum insured between exposure and diagnosis, rather than only in the year of diagnosis. See Keene Corp. v Insurance Co. of North America, 667 F.2d 1034 (D.C. Cir. 1981). Given the long latency between asbestos exposure and ultimate illness, the level of insurance exposure was suddenly massive. Circuit Judge Patricia Wald warned that the court’s decision “requires a leap of logic from existing precedent, for it concerns diseases about which there is no medical certainty as to precisely how or when they occur.”
In 1982, the New Jersey Supreme Court threw out the “state of the art” defense for asbestos manufacturers, in essence holding that it mattered not whether business practice was the best available to the industry at the time the injury occurred. See Beshada v. Johns-Manville Products Corp., 442 A.2d 539 (N.J. 1982). The court opined, “The burden of illness from dangerous products such as asbestos should be placed upon those who profit from its production and, more generally, upon society at large which reaps the benefits of the various products our economy manufactures. ”
Thus, in less than a decade, the law was radically shifted, and asbestos litigation was born: “The decade after Borel saw 25,000 asbestos cases filed. By 1981, more than 200 companies and insurers had been sued; by 1982, defendants’ costs had topped $1 billion.” But these early years were just the beginning…
Yesterday, I had the privilege to do a brief interview with Lester Brickman, a professor of law at Cardozo School of Law in New York. Professor Brickman is one of the nation’s leading legal ethicists and the national adacemic expert on asbestos litigation. The discussion is available as a podcast, downloadable here.
Point of Law Volokh