Where’s the trial lawyer bringing a class action on behalf of all of the people who were defrauded when they gave money to John Edwards’s presidential campaign?  It’s certainly a much more plausible claim of causation, reliance, and financial injury than the typical class action.

More seriously, I hope someone somewhere is investigating whether Fred Baron violated federal campaign finance law when he set aside tens of thousands of dollars to pay Rielle Hunter hush money without disclosing the payments on behalf of Edwards.  Edwards said he was in the Beverly Hilton to help keep the story from becoming public, which makes it seem unlikely he’s telling the truth when he said that he had no knowledge that Baron moved Hunter to California.  Alas, ABC didn’t ask the right follow-up questions, such as how Edwards thought meeting Hunter in a hotel room would help keep the story quiet.  And “Fred Baron” appears nowhere in the New York Times story, even as he is a major fund-raiser for Barack Obama today.  Obama is still running for president, right?

I’m quoted by Amanda Erickson in today’s Chicago Tribune:

Continue Reading »

In autos; FDA; media bias; politics; preemption; product liability; Public Citizen; publicity; rollover litigation; Ted Frank

• Sure enough, former Milberg lawyers sue the convicted ex-Milberg lawyers for breach of fiduciary duty. I was wondering when that was going to happen. [WSJ Law Blog; NYLJ/law.com; earlier]
• “Schneider said others in the legal community initially had a hard time understanding why he had filed a grievance against a fellow attorney.” After all, she had only stolen $200,000 from clients. [Las Vegas Review-Journal via ABA]
• Judge: No evidence of wrongdoing by Kenneth Pasternak. Too bad he can’t get his three years back. Meanwhile SEC keeps bringing enforcement cases on same repeatedly rejected theory of liability. [WSJ; Law Blog]
  
• “What the AP and The New York Times’ Hansell don’t seem to realize is how hostile an act it is to send lawyer letters to individuals.” [Jarvis via Patterico]
• “When judges act like politicians, the judicial selection process – elected or appointed – becomes increasingly political. Action and reaction. The politicization of the court led to the politicization of the elections for justices. … When justices arrogate political policymaking to themselves, they should not be surprised when they are held to the same standards as politicians.” [Wisconsin Policy Research Institute via American Courthouse; I said that, too]
• Even Susan Estrich finds the Alex Kozinski web site mini-to-do as evidence of media bias. [Estrich; Patterico link roundup]
• Senator McCaskill shows her ignorance on the Anheuser-Busch merger and corporate officer duties. [Hodak]
• A clever attorney will already have a fill-in-the-blanks product liability complaint drafted against Lego. [Childs]
• Hugo Chavez expropriates wealth to consolidate dictatorship. American lawyer helps. Somehow I don’t think we’ll see an Alien Tort Claims Act suit against his law firm. [AmLaw Daily]

• Are plaintiffs’ attorneys judge-shopping by filing and dismissing and refiling identical class-action complaints in the highly-publicized restaurant menu case against Applebee’s? [Cal Biz Lit]

• You won’t be surprised that most of the nine worst business stories picked by BMI involve spoon-feeding by plaintiffs’ attorneys to a credulous press. [Business & Media Institute]
• “There’s no justification whatsoever for the agency to take any kind of action,” said Julie Vallese, a spokeswoman for the Consumer Product Safety Commission. “The claims being made about the dangers of shower curtains are phantasmagorical. It’s ridiculous.” Yeah, but the lawsuits are bound to happen anyway. [NY Daily News]
• Jack Thompson stays in the news when U.S. Marshals pay him a visit after a letter to a judge. [GamePolitics (h/t J.L.)]
• “A City lawyer who is demanding £19 million in compensation for work-place bullying faked a nervous breakdown to secure a larger payout, an employment tribunal was told.” [London Times via ATL]
• Did defensive medicine almost kill a patient when doctor worries more about potential lawsuit than whether nurse could save patient’s life? Heck if I know, but the underlying medicine is debated in the comments. [EM Physician blog]
• Hair-stylist fined £4,000 for “hurt feelings” after refusing to hire a Muslim stylist who wouldn’t show her hair at work. [Daily Mail (h/t Slim); earlier on Overlawyered]
• Disturbing turn in the Adam Reposa disciplinary hearing over his obscene gesture in court: state bar introduces satirical magazine as evidence because they “thought it was indicative of Reposa’s lack of respect for the law and the court system.” [Texas Lawyer/law.com] Mind you, this is the same Texas legal discipline system that refused to take action against Fred Baron and gave a slap on the wrist to the lawyers who tried to fake evidence in a product liability suit against Chrysler. As long as your priorities are straight.

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:

Continue Reading »

• Monday’s polar bear panel at AEI is a panel about the law of polar bears and the effect of the FWS decision to list them as threatened, rather than a panel featuring polar bears. So no fish will be served. Volokh’s Jonathan Adler will be there, though. [Volokh; AEI]
• Limiting lawsuit abuses lowers costs from litigation, creates jobs in long run. [Engler & McQuillan @ Detroit News]
• HBO to small businesses: prepositions are okay, but conjunctions will lead to injunctions. [Baltimore Sun]
• A one-sided love letter to Cozen O’Connor in the Philadelphia Inquirer over its September 11 litigation is a bit too revealing about its deep-pocket searches: “Cozen lawyers also had to be sure that such a defendant made financial sense, for the firm and its clients.” Culpability, of course, isn’t in the equation; and the newspaper story fails to account for the public-policy implications of having trial lawyers stepping on foreign policy. [Philadelphia Inquirer]
• Life imitates “The Office”: law firm offers “love contracts” for dating workers. [ABA Journal]
• More evidence of FDA overwarning, even when the science and law does not justify it. [Kyle Sampson @ Product Liability Law 360]
• Business tries to bully small website with litigation; small website successfully fights back. [CL&P Blog]
• “[Ron] Paul accomplished the one thing he’s always been good at: using political appeals to get people to send money. I don’t feel freer.” [Henley via Kirkendall]
• “It’s infuriating how all three presidential candidates prattle on about the need to fight global warming while also complaining about the high price of gasoline.” [Postrel]
• Story on Vioxx settlement and Merck winning reversals heavily quotes me. [Product Liability Law 360 ($)]

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.

Associated Press:

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 David Rossmiller notes,

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:

Continue Reading »

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.

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.)

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).

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.

Continue Reading »

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.

Kudos to John Cole, who evaluated the evidence and withdrew his endorsement of the LA Times story.

One of his commenters protests: “I’ve certainly heard [the Winnebago case] presented as true.” Well, no doubt. That’s the nature of urban legends. The point is that the Winnebago story isn’t a motivating force behind tort reform. The major tort reform advocates aren’t using the Winnebago story (and, in fact, have done much to refute it). Policymakers aren’t enacting tort reform in response to the Winnebago story.

In contrast, what about urban legends that support the litigation lobby? For example, how about the myth that the Ford Pinto was unusually dangerous and the related myth that Ford valued a human life at $200,000 in deciding not to make a design change? It’s a thirty-year-old tale, trumpeted by Mother Jones magazine and the mainstream media, repeated endlessly (including by Ralph Nader and in a talk I heard by Jonathan Turley, quoted in the LA Times story), used in law school textbooks—but it’s utterly false. Unlike the Winnebago story, a google search for “ford +pinto +lawsuit” turns up no refutations on the front page (though maybe this new page will turn up in the future). Rather, one gets such links as a Daily Kos poster using the Ford Pinto case to argue against class action jurisdictional reform, even though the latter has nothing to do with the former. These things are perhaps impossible to measure, but how can anyone possibly think that the false Winnebago story has had more of an impact on the tort reform debate than the false Ford Pinto story? Where’s Myron Levin on this one?

In part II of their series on behalf of the trial lawyers’ bar, the LA Times repeats a mistake from part I and then compounds the error by citing misleading statistics.

As you recall in Part I, the LA Times noted that there exist urban legends about litigation, and claimed that these urban legends have distorted the debate in favor of tort reform. (And, as Walter points out, gives unmerited credence to a nefarious allegation.) The first part is trivially true, but the only evidence cited in support of the conclusion is a second-hand tale of a credulous radio talk show listener who called in to repeat the Winnebago story. And why this radio talk show caller is proof of a distorted debate towards tort reform, while, say, big-budget movies like “Erin Brockovich,” “The Insider,” and “A Civil Action” that glamorize plaintiffs who had bad cases or the numerous newsmagazine segments that consist of nicely-produced twenty-minute videos for a plaintiff’s opening statement don’t distort the debate remains unclear, but the Times assumes that people support tort reform because of the urban legends rather than because of the true tales and statistics and despite Hollywood propaganda. (Indeed, the Times article itself is a prime example of the media distorting the debate in favor of plaintiffs’ attorneys, as it repeats the ATLA viewpoint supporting the McDonald’s coffee case while ignoring the numerous facts and arguments showing why that viewpoint is wrong (Aug. 13 and links therein.)

In Part II, we see a similar logical leap. There is a trivially true point: newspapers report what is, well, newsworthy, and thus big verdicts get reported and small verdicts or defense decisions or verdict reversals don’t get reported. The Times then goes on to conclude that this distorts the debate in favor of tort reform. Why? Why doesn’t it distort the debate in favor of plaintiffs by making outrageously large judgments seem commonplace, by persuading juries that there’s nothing wrong with awarding a billion dollars to get their names in the paper, by making corporations seem like wrongdoers because the defense verdicts get ignored? (Indeed, as Steven Hantler has noted, studies have shown that this bias might be why defendants don’t do more to publicize defense verdicts: the mere fact that a corporate defendant is sued implies wrongdoing to a majority of people.) The Times cites absolutely no evidence that people misperceive the tort reform debate in favor of tort reformers, or even that they misperceive the tort reform at all, much less because of these media decisions. But it feels free to assume this conclusion and report it.

The tort reform opponents (the only tort reform supporter quoted, Theodore Boutrous, is quoted for the fact that newspaper ignore defense verdicts) and the LA Times make hay over three statistics, but each is irrelevant.

First, the “number of lawsuits” filed in thirty-five states has declined four percent in ten years between 1993 and 2002. But so what? If a doctor says a patient is dangerously obese because he weighs 480 pounds, I don’t think she’ll be less concerned because the patient weighed 500 pounds ten years ago. More importantly, the number of “lawsuits” isn’t the relevant metric. In particular, the nature of a “lawsuit” has changed. Between 1993 and 2002, it became increasingly common for litigation to feature hundreds or thousands or millions of claims tied together in a single suit. Liability has expanded such that many states permit plaintiffs to recover without any showing of concrete injury. These are problems that aren’t a function of simple counting.

The second and third statistics are also irrelevant: the median jury verdict has allegedly decreased in the last ten years, and defendants win jury trials about 50% of the time. But so what? An anecdote in the LA Times and covered in Overlawyered demonstrates precisely why this is irrelevant: Ford won at least twelve straight jury verdicts over allegations that its SUV was defectively designed—but a San Diego jury awarded $367 million (Jun. 3, 2004). (Ironically, the LA Times repeats the mistake it is commenting on—it fails to report that this verdict was reduced to “only” $273 million and that Ford has appealed.) This is a huge verdict, with a substantial impact on the total verdict awards and the mean jury award (and there were several that were even higher in 2004), but it affects the median barely a jot. Juries went with the defense more than 90% of the time, the median decision was $0—but the mean plaintiff won over $20 million. Which statistic do you think Ford shareholders care about the most? Which statistic do you think the plaintiffs’ bar cares about the most? Hint: it’s the same statistic that the LA Times ignores, the statistic that shows that the cost of litigation has been steadfastly increasing (POL Jan. 10). When the plaintiffs’ bar engages in settlement negotiations with Ford next products liability lawsuit, they’re not going to be persuaded to lower their demands because the median verdict has dropped. (Myron Levin, “Coverage of Big Awards for Plaintiffs Helps Distort View of Legal System”, Los Angeles Times, Aug. 15).

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.

A few further thoughts on the absurdly one-sided Los Angeles Times piece that Ted nails below:

To me, the most outrageous moment in the piece comes early, when GWU lawprof Jonathan Turley is quoted saying of stories like the bogus “Winnebago cruise control” tale: “The people that created these stories did so with remarkable skill,” that skill being aimed at “influencing policy”. Turley thus clearly implies that the silly Winnebago story, or the list of supposed “Stella Awards”, or both, were purposely fabricated by sinister if unknown persons in order to influence policy debates, as opposed to, say, originally being someone’s idea of satire and then being passed along by people who wrongly believed them genuine. LAT reporter Myron Levin permits this very serious charge of deliberate fabrication to hang in the air unexamined and unanswered, which does much to set the tone of his piece.

Yet Prof. Turley, a figure much quoted in the press and frequently on camera, offers precisely zero evidence to back up his serious charge that someone deliberately made up the Winnebago/Stella stories and passed them off as real in hopes of influencing policy. Okay, Prof. Turley, either document that charge, or retract it — or else face a very reasonable suspicion that you yourself are willing to fabricate serious charges for which you lack any evidence.

The Association of Trial Lawyers of America for months has been pushing the theme that the L.A. Times ran with today and it, too, offers not the slightest evidence for its claim that someone purposely fabricated the Winnebago/Stella stories to influence policy debates. ATLA’s floating of that theme (”Updated
February 2005″) can be found here (claiming stories are “designed [emphasis added] to perpetuate the myth that there is a ‘lawsuit crisis’ in America … clearly are part of a massive disinformation campaign designed to undermine Americans’ confidence in our legal system,” etc., etc.) Curiously, for an article that raises concerns about supposed attempts by well-organized groups to influence press coverage, the LAT story never mentions ATLA at all, merely alluding vaguely to trial lawyers in a place or two.

Much of this is of course old news to readers of Overlawyered, which four years ago printed an extensive debunking of the bogus stories that the L.A. Times says legal reformers are eager to circulate. We know through referrer traffic that large numbers of web users continue to land on our entry by searching on strings such as “winnebago + cruise control + lawsuit” (& welcome Patterico, Gail Heriot, Southern California Law Blog readers).