Chronicling the high cost of our legal system
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Jack Shafer has some thoughts about the soft center of the supposedly hard-boiled press when it comes to stories like that of Megan Williams of Charleston, W.V., who has just recanted some elements of a sensational 2007 kidnap/assault story that sent six accused persons to prison for long terms.
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As its press release says, Take Two Software settled a securities class action, yet multiple sources–including Dave Itzkoff’s story in the New York Times and Bloomberg–incorrectly report that it settled the consumer class action, complete with incorrect docket number. The consumer class action settlement was made in 2007 and, as Overlawyered readers might remember, rejected by the court, with the court’s decision to decertify the class still on appeal.
It’s unclear to me why either of those got it wrong, given that I contacted both Glovin and Itzkoff to let them know their error; Bloomberg issued two updates after my email, and Itzkoff had a chance to rewrite his incorrect blog post before it appeared in today’s Times, but neither has the story straight.
The New York Times quotes my testimony to the hearing on H.R. 847.
Unfortunately, the story incorrectly refers to AEI as a “lobbying organization,” which it is definitively not. It is unimaginable how the Times could have made this mistake, given that just three weeks ago, they had to correct an identical mistake; the senior editor has promised me a correction.
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Arbitration opponents complain that mandatory arbitration clauses “deprive” consumers of a day in court. One such set of complaints was aired in a big Business Week story (to which NAF responded and refuted); CNN recently repeated these allegations in a one-sided story. So it’s worth taking a look at how well consumers do in court when it comes to debt collection:
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ABC Good Morning America signs on to the litigation lobby war against freedom of contract by parroting a Public Citizen anecdote about the supposed horrors of arbitration–though the underlying problem (mistaken identity of Anastasiya Komarova) had nothing to do with the arbitration proceeding. Needless to say, none of the benefits of arbitration to consumers was mentioned, and only Public Citizen’s one-sided and misleading statistics were used. Nathan Burchfiel is on the case.
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The Supreme Court has refused to offer help to Hurricane Katrina victims who want their insurance companies to pay for flood damage to their homes and businesses.
As if the choice in a case is simply going where your sympathies lie, and when the court decided not to take the appeal, the halls rang with evil laughter and mocking statements such as this: “We will extend no help to Katrina victims because we love to see them suffer and we love to support our evil twins, the insurance companies who steal from them.”
The Fifth Circuit, of course, simply enforced the insurance policies as written, and noted that the word “flood” included a flood caused by the breach of the levees in New Orleans, reversing a district court that disingenuously held otherwise. And the Supreme Court simply refused to make the appeal of that obvious decision one of the 1% of petitions for certiorari that it grants.
Update: Mark Obbie, while also critical of the lede, writes:
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The Civil Justice Association of California says it so well, we might as well just quote them:
“Fee arbitration offers cheaper, faster alternative to litigation.” Where did that headline run? Give up? In the California Bar Journal, the “Official Publication of the State Bar of California! The story beneath it praises fee arbitration between lawyers and clients, saying that arbitrators are reporting that their work “gives people immediate results, unlike protracted litigation.”
The Bar’s presiding arbitrator, Arne Werchick, is quoted as saying: “It’s a neutral program that gives everyone a fair shake.”
We hope Mr. Werchick, who was president of the trial lawyers association in 1980, sends copies of the article to personal injury and other plaintiffs’ lawyers in Sacramento and Washington. They are once again firing up their endless campaign to block people’s constitutional right to contract to settle future disputes by arbitration rather than going to court.
Separately, ABC News parrots the trial-lawyer line with misleading coverage of another arbitration involving Tracy Barker: they falsely report that Barker’s lawsuit was “killed” (when it will in fact be heard in the forum that Barker contractually agreed to litigate in), that the proceedings will be “secret” (when Barker has the right to publicize them the same way she can publicize a trial), and waits until deep into the story to acknowledge that the arbitration clause does not prohibit the employee from bringing litigation against her alleged rapist. Where’s John Stossel and “Give Me A Break” when you need him?
For more on the litigation lobby’s battle against arbitration, see the Overlawyered arbitration section.
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Glenn Reynolds posts on problems with Wikipedia. The problem is worse than he imagines, because lazy mainstream media are now relying on the site. I won’t embarrass the reporter by name, but he did a story on the ATLA name change; in the course of the story, he quoted fictional statistics invented by the Center for Justice & Democracy as “evidence” of the failure of medical malpractice reform. I dropped him an email pointing out the error, and the response included the following:
“I have found that non-obscure entries in Wikipedia are usually policed carefully to prevent unfounded, unanswered spin.”
At which point, he quoted back to me a Wikipedia entry on the subject that consisted entirely of ATLA talking points and spin that had been refuted numerous times on this site and Point of Law. That Wikipedia is inaccurate on this topic is no surprise: as I’ve noted earlier, a handful of trial lawyer advocates have systematically made thousands of edits to sanitize Wikipedia of just about anything that opposes the official ATLA line or criticizes trial lawyers, even on such minor entries as Jim Shapiro (see OL June 2002) and contingent fee (not to mention more major ones like asbestos, asbestos and the law, and medical malpractice). (And welcome Instapundit readers.)
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One would think that Mississippi Attorney General Jim Hood’s steering of $14 million in taxpayer money to a friend instead of using government attorneys at a fraction of the cost would be a major scandal, but The Sun Herald allows the story to be derailed into a trial-lawyer attack on lawsuit reform— and this is the “one hand/other hand” focus the reporter took:
“Some say the GOP pushes it because trial lawyers are the Democrats’ last major source of campaign funding. Others say Republicans push such changes to protect their major source of funding, big business.”
That reform demonstrated itself to be good public policy (especially in Mississippi, where its legal system was a notorious and shameful “judicial hellhole”) doesn’t seem to enter the equation. (Geoff Pender, “Battle over lawyer fees”, Oct. 25).
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News clips reporting on large verdicts and settlements cross my desk regularly, and most do not seem on their surface to be worth blogging about. Most are terse summaries of a case’s outcome, and others do not present any indication (again, on the surface at least) that a case might have problematic aspects. The other day, however, I ran across a story in the Charleston (W.V.) Gazette describing a case in which a plaintiff had been terribly injured after a retailer sold what the reporter bluntly stated was a “defective mower.” This particular newspaper story was so one-sided that I thought there almost had to be more to it than was being reported — and I had no idea how right I was in that suspicion. This is a long post, but I hope worth readers’ while. It certainly makes me wonder how much I’m missing when I don’t go into the dockets to fact-check other seemingly run-of-the-mill cases.
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I’ve got details at Point of Law, where there is also much additional Milberg coverage.
On the other hand, the Times today continues to show admirable persistence in tracking the Anthony Pellicano scandal, even though that one (unlike Milberg’s) doesn’t have its roots in New York. (David M. Halbfinger and Allison Hope Weiner, “Pellicano Case Casts Harsh Light on Hollywood Entertainment Lawyers”, May 23).
Also at Point of Law this week, in the “Featured Discussion” section, Jonathan B. Wilson and Larry Ribstein debate whether licensing lawyers makes sense.
The Free Market Project covers anti-business media bias, and has been issuing weekly exposes of media coverage of the various lawsuits over insurance companies’ flood exclusions: Oct. 5, Sep. 28, Sep. 14. Our coverage: Sep. 15, Sep. 12; POL Sep. 28, Sep. 26, Sep. 25, Sep. 23, Sep. 22, Sep. 9. I spoke about the issue at an AEI panel I moderated on October 3 that was broadcast on C-SPAN2. Transcripts will be posted in the next couple of weeks on the AEI site.
Point of Law Volokh