A New Orleans woman, Patricia Dicorte, says she got ripped off by her contractor in May 2007, so she took him to an arbitrator, and in July 2007—a fraction of the time it would take in a civil suit of that magnitude—she had an arbitration ruling in her favor for $219 thousand. Unfortunately for her, she then took it to the cesspool of Orleans Parish Courts for enforcement, and Democratic Judge Yada Magee—a colleague of the cousin of the contractor—violated the Federal Arbitration Act and threw out the arbitrator’s ruling. (Dennis Woltering, “Despite arbitrator’s ruling woman still fighting contractor”, WWL-TV, Feb. 25). This will eventually be reinstated on appeal at some unnecessary expense, but somehow Kia Franklin is advertising this fiasco as an example of problems with arbitration (!), rather than as a problem with the judicial hellhole of New Orleans. (If the judge isn’t willing to give a fair ruling for the consumer in something as straightforward and administrative as arbitration judgment enforcement, what makes Franklin think that the consumer would have had a better chance with that judge in a civil trial?)

Judge Magee is best known for railroading negligence findings for 1800 plaintiffs against Dow Chemical in bogus silicone breast implant litigation in 1997, a decision thrown out by a Louisiana appellate court in 2002. Spitzfaden v. Dow Corning Corp., 833 So.2d 512 (La. App. 2002).

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We’ll talk about King, too, but relate it to something he actually said: “I have a dream that my four children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.” See posts Jan. 2007 and Dec. 2006, Heriot @ POL, Jan. 2006, and POL on the Akaka bill. As Chief Justice Roberts noted (and was criticized for noting) in the last term, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

(And update: don’t forget October 2006 on school discipline. Or October 2005 on why the great documentary “Eyes on the Prize” still isn’t available on DVD to the general public.)

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DMI’s Kia Franklin’s defense of her claim that the travesty of justice we have seen in Pearson shows that the system works? “Now, had Pearson collected the $12,000 settlement, we would have a whole new hypothetical and a whole new set of questions about the terms of the settlement (Would we have known the settlement amount? Would they have been able to publicize this? What were the lawyers’ strategies?) and the consequences thereof. So we can’t prematurely say that it would pay off for him.” Franklin goes on to deny that trial lawyer abuse even exists—a perhaps necessary position for her to take, given that the top of any list of abusers would include the indicted law firm Milberg Weiss, which funds her fellowship, in part from the successful extortion of billions of dollars using the same in terrorem tactics as Pearson.

As Peter Nordberg notes in the Overlawyered comments, “If [Pearson] is indeed representative, there should be thousands of cases just like it, and we may as well get to discussing those.” And indeed we should.

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But it is a useful illustration: when those who oppose civil justice reform say they don’t think frivolous litigation is a problem, it is because they define “frivolous litigation” so narrowly that even Roy Pearson’s lawsuit is not frivolous in their eyes. Well, that’s one way to make problems go away, by using doublespeak or narrow technical legal definitions to pretend they don’t exist instead of suggesting that there is a problem with the narrow technical legal definition.

A few other minor points:

1) For some reason, Franklin links to a post I wrote that says that it is inappropriate to judge attorneys by skin color, and criticizing the racism of law firms and clients who say otherwise, and claims that it is evidence that Overlawyered does not care about racial justice. It’s remarkably ironic that my position, taken directly from the words of Dr. Martin Luther King, Jr. (”I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character”) is being criticized by a thinktank named after other words of King, and remarkably sad at the same time that King’s ideals have been twisted so that those who fight in his name stand in direct opposition to his dream.

2) Franklin repeats her statistical misrepresentation and falsely claims “it is consistent with the data.” Whether this is because she is being dishonest or because she hasn’t read the Public Citizen study she’s quoting is uncertain. And as we have previously noted, Public Citizen got its math wrong, yet Franklin continues to repeat the false statistic without defending or correcting it.

3) Is Judge Pearson poor? Well, when he filed his suit, he was unemployed, had an empty bank account (according to the court opinion on his divorce) and did not own a car. He is about to be unemployed again. Perhaps it was an exaggeration to call him poor, but he’s certainly not wealthy. The question remains why Franklin and ATLA feel it necessary to criticize someone delusional like Pearson when they are ignoring wealthier and more powerful attorneys like Tab Turner who bring even more ridiculous and crazy and obscene lawsuits that affect more than a single dry cleaner.

4) Still missing from Franklin’s critique of the Pearson suit: whether she thinks the legal system is working with such claims where an immigrant family would have been forced to pay $12,000 in extortion to a more rational attorney, and what (if any) reforms are merited.

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Her evidence is a Public Citizen study—but she ignores our 2006 post noting that Public Citizen got its math wrong, and even distorts the distorted statistic beyond what Public Citizen claimed. (Public Citizen gerrymandered its claim to falsely say businesses were 69% more likely to be sanctioned for frivolousness than individual tort plaintiffs, but Franklin misreads that to say individuals, which is false even by Public Citizen’s numbers, which found by its own measure that individuals were sanctioned for frivolousness 86% more often than corporations. Note also the difference between the inaccurate “more likely” and “more often.”)

The really funny thing is that, under the Public Citizen narrow definition of “frivolous lawsuit” used in its study, Judge Pearson’s suit is not frivolous! When politicians speak of “frivolous” cases, they use it in the everyday English sense of “silly”: they mean the meritless cases, where, because of far-fetched legal theories, junk science, or overbroad liability rules, plaintiffs seek or realize recovery far beyond what makes good social policy—cases like Roy Pearson’s. Public Citizen’s study, however, in a typical litigation-lobby bait-and-switch (see, e.g., the Kerry/Edwards malpractice reform plan), defines “frivolous” with the narrow technical legal definition so that it can conclude (like Franklin) that frivolous litigation is “rare” and thus not a problem. (Amazing how many problems disappear when you assume them away.) The definition is so narrow that Pearson’s suit is outside of it: Pearson defeated motions to dismiss and for summary judgment, and received a $12,000 offer of judgment. (Pearson is apparently sufficiently emotionally troubled that he thinks he has a better shot seeking tens of millions from a couple of immigrant Korean dry cleaners than the thousands of dollars offered in settlement for a pair of pants, even though the judge who will be ruling on his case has given him plenty of hints that he has no hope of success.) The Pearson suit would have been excluded from Public Citizen’s count of frivolous suits for a second reason: Public Citizen ignored pro se lawsuits brought by attorneys like Pearson in its count of frivolous suits, as it had to to deflate the number of sanctions issued against individual tort plaintiffs and falsely claim that corporations are sanctioned more often.

We’re excited to see Franklin join the world of reformers and recognize that many more lawsuits are frivolous than what Public Citizen recognizes. We encourage her to read the data and arguments of those she mistakenly claims to oppose, and to scrutinize those she mistakenly thinks are her allies a bit more closely. Why is it alright for wealthy white trial lawyers to extort billions from big business using the same ad terrorem tactics (and even the same consumer-protection laws!) as a poor African-American pro se did to extort $12,000 from a small business? We encourage Franklin to examine the Association of Trial Lawyers of America’s racial double-standard.

And since Franklin agrees that the Pearson lawsuit is frivolous, we are eager to hear how she would define a frivolous lawsuit, and hope that she uses that definition consistently for both the Milberg Weisses of the world as well as African-American city employees.

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