Chronicling the high cost of our legal system
Posts tagged as:
Texas, KXAN: “A Liberty Hill man faces life in prison for aggravated perjury charges after claiming he was innocent following a plea bargain with the Williamson County District Attorney’s Office.” He’s now been found guilty. Jamie Spencer at Austin Criminal Defense Lawyer scents a prosecutorial grasp for advantage.
Also on the topic of plea bargains, Scott Greenfield has some thoughts on the coerciveness of the process.
{ 5 comments }
“Houston lawyer Warren Todd Hoeffner is accused of paying $3 million in cash, BMWs, trips, even spa treatments and ‘gentleman’s entertainment’” in a scheme to obtain $34 million in settlements in silicosis litigation. Things began to unravel when Hartford Insurance, which had cut settlements on behalf of a number of defendants, noticed the arrival of a check for $6,000 from Hoeffner to one of its former claims personnel. Hoeffner’s lawyers are arguing that the insurance company employees extorted money and goods from their client by threatening not to approve fair settlements otherwise. [Houston Chronicle, Southeast Texas Record]
{ 1 comment }
I’m not taking sides, but those who read the excellent New Yorker article should also read some of the materials and arguments left out of the story. (Judge John Jackson, Corsicana Daily Sun, Aug. 28). The newspaper has also published its archives on the case to the web if you’re interested in the contemporaneous reporting in the case.
{ 20 comments }
MediaBistro’s AgencySpy wonders whether the computer maker’s relatively speedy settlement had anything to do with the circumstance that “one of the plaintiffs is a former female HR administrator”.
…it’s nearly always a good idea to let the target know who your client is.
{ 1 comment }
In Mississippi Litigation Review blog, Philip Thomas argues that Kim Strassel’s article (which we discussed Sunday) overemphasizes the role played by U.S. Silica’s CEO. I think that’s more the doing of the WSJ headline writers (which do pitch the story of one guy standing alone against the plaintiffs’ bar) than Strassel; as Thomas himself acknowledges, Ulizio doesn’t try to take undue credit, and Strassel merely (and correctly) notes that lawyers alone couldn’t defeat the silica lawsuits without the support of the business community willing to stand up against the tort bar.
Thomas also objects to Ulizio’s characterization of the victory as “luck,” but luck definitely played a huge role. The scandal came to light solely because Judge Janis Jack held mass Daubert hearings at an abnormally early stage in the litigation. In fact (and I seem to be the only person who has ever made this point), Jack’s ruling was especially abnormal, because she made the Daubert ruling before she made a jurisdictional ruling—and her jurisdictional ruling found that 99% of the cases in front of her lacked complete diversity and needed to be remanded. In other words, Judge Jack’s famous condemnation of plaintiffs’ experts was largely an ultra vires advisory opinion (which is why her sanctions order was for only a couple of thousand dollars).
The luck of the MDL draw had everything to do with that result. Another judge might not have held Daubert hearings at such an early stage; another judge might not have actually applied Daubert even if she had held the hearings; another judge might have preferred to empty her docket immediately, rather than stalling on the eventual remand.
And these aren’t purely hypothetical musings: in the welding fumes MDL in Ohio, there has been plenty of evidence of mass tort fraud, yet the judge has refused to throw out cases, so they slowly continue to proceed to trial.
In that sense, Ulizio is absolutely right: “When you have an entire system that condones these lawsuits, that does nothing to police its own, where there are no consequences, right or wrong has nothing to do with it. It’s a coin flip.” The lawyers who brought these fraudulent cases are still practicing law; thousands of fraudulent mass tort lawsuits continue to be brought since Judge Jack’s ruling without consequence to the unethical lawyers who bring them.
{ 1 comment }
“The first time we ever lost a case in trial, it was 2001. We tried it in Beaumont, Texas, and lost $7.5 million. . . . The judge sat there through the trial reading a newspaper. At one point an objection was made, the bailiff taps him on the shoulder and says ‘judge, objection is being made.’ He looks at our lawyer and says ‘overruled.’ The plaintiffs’ lawyer raises his hand and says ‘no, judge, it was me.’ He says ’sustained’ and goes back to reading the paper.” …
[U.S. Silica CEO John A.] Ulizio shares a memo that plaintiffs’ lawyer Joe Gibson sent to silica defendants in 2004 with a blunt offer: Settle our 9,000 cases for $900 million, or pay $1.5 billion in pretrial discovery alone, plus an even bigger verdict. “That’s the genius of the economics of litigation from the plaintiffs’ perspective. Sue a lot of people, sue on behalf of a lot of plaintiffs, get into an adverse jurisdiction, and then don’t make too big of a demand, so you can settle it for a relatively small percentage of the cost of defending the case,” Mr. Ulizio says.
Kim Strassel has a must-read account of how U.S. Silica beat a mass-tort fraud attempting to steal its solvency—and did so almost entirely by the luck of the MDL draw, as a different judge might have refused to conduct the hearings that exposed the wrongdoing. (See also Michael Krauss at Point of Law.)
Note that that $900 million proposal for 9000 bogus cases works out to $100,000/case—which is exactly what the Vioxx litigation settled for.
{ 3 comments }
In 2007, the Texas Supreme Court unanimously decided Borg-Warner v. Flores, holding that a defendant in an asbestos case was not liable unless its product was a “substantial factor” in causing injury.
But there are now bills in the Texas House and Senate, SB 1123 (recently reported out of Senate committee) and HB 1811, that seek to undo this by defining “substantial factor” to merely mean that a product “contributed to the [plaintiff’s] cumulative exposure”—whether or not other defendants’ products were far more responsible for a plaintiff’s injury. The effect of this rollback would be to return Texas to the role of asbestos magnet, since it could conceivably create indiscriminate liability for hundreds of innocent businesses in any given case. The effect will be very similar to the infamous Lipke rule in Madison County, Illinois that extracted billions of dollars from the innocent this decade.
Texans for Lawsuit Reform has a fact-sheet, as does the Texas Civil Justice League.
{ 2 comments }
{ 1 comment }
Today I testified before the Senate Republican Conference about the effect on the economy of excessive litigation. A podcast is available on-line and, for the insomniacs among you, the hearing will be broadcast on C-SPAN tonight at 10:56 PM Eastern and again at 2:09 AM Eastern. Also testifying was Life Without Lawyers author Philip Howard; Crystal Chodes, who lost her job because of the expense of a meritless ADA filing mill suit; Texas doctor David Teuscher; and arbitration expert and University of Kansas law professor Christopher Drahozal.
If you just prefer reading what I have to say, my written testimony is on-line also:
The total loss to the economy from excessive tort litigation above and beyond a baseline of an employment at will regime and an average industrialized tort system can be estimated at between over $600 billion and over $900 billion a year, 4.3% to 6.5% of GNP, or a tort tax of between $8,000 and $12,000/year for an average family of four. And this is very much a conservative estimate, as other economists find much stronger effects than I have estimated here, as I have not tried to estimate a number of identifiable secondary and tertiary effects of excessive tort litigation on allocation of economic resources, and as I have not tried to estimate the likely effect of recent Congressional expansions of tort liability in the last twelve months.
I was pleased to hear from multiple Congressional staffers who are regular Overlawyered readers: one even surreptitiously added the website into my official biography. Carter Wood talks about the hearing and Senator Cornyn’s remarks over at Point of Law.
Update: video on-line at C-SPAN; my segment begins at 43:15 or so. And C-SPAN2 is rebroadcasting at 4:16 pm Eastern on Tuesday, March 17, which suggests that my appearance will be at about 5 pm Eastern.
{ 3 comments }
Notice one thing missing in the New York Times’s discussion of the ethical complaint against Texas Court of Criminal Appeals Judge Sharon Keller? That’s right: any discussion of the underlying merits of the appeal that Keller refused to permit to be filed late. The Supreme Court held in Baze v. Rees that lethal injection was constitutional. Michael Richard, who raped and murdered a mother of seven, had multiple levels of meritless appeals, and this is a complaint that he should have gotten yet another one at the eleventh hour to raise a brand-new attack on his death sentence, and that Judge Keller should have politely informed the lawyers that they were asking permission for a late filing from the wrong judge to pointlessly delay the execution for another year while the Court decided Baze. One hopes that this ethical complaint and related press coverage is looked at as the political attack that it is. See also Beldar’s earlier analysis and follow-up.
{ 5 comments }
That one Texas town’s habitual seizure of the money of motorists passing through may not have been an isolated incident [NPR, Defending People, Grits for Breakfast].
“Convicted last year of intoxication manslaughter for the death of her boyfriend, the 21-year-old daughter of a state district judge is suing the truck driver she ran into during a drunken driving crash. …[Elizabeth] Shelton had a blood alcohol concentration more than three times the legal limit, two tests showed.” (Brian Rogers, Houston Chronicle, Dec. 18). Feral Child has been digging up all sorts of interesting stuff about the lawyer representing Elizabeth Shelton, too — his name is Mark Sandoval — and his past dealings with her father, Harris County Judge Pat Shelton. He wonders whether it has something to do with standards being lower in Texas, although, unfortunately, we can think of this sort of thing going on in many other states too. And then Mark Bennett of Defending People jumps in and does even more research about Sandoval’s disciplinary record. And does he ever find stuff.
The Houston Chronicle deserves credit for breaking the original story, but as you may have noticed it took only hours for two skillful bloggers, SSFC and Bennett, to push it much farther. The blogosphere is proving itself extremely powerful in shedding a quick and bright light on some of the darker corners of the legal system.
{ 1 comment }
The American Tort Reform Association is out with its annual ranking of the jurisdictions where it thinks civil defendants are farthest from being assured a fair trial, and they are:
The list reflects the views of big-company managers and lawyers as to tort lawsuits; a poll of, say, doctors might result in different nominations (Brooklyn, Bronx, Long Island*, Philadelphia) and one of class-action or patent-infringement defendants would likely produce yet other lists.
ATRA has a supplementary “Watch List”, nicknamed by some of us “Heckholes”, of toasty but not quite infernal jurisdictions, on which it places the Rio Grande Valley and Gulf Coast of Texas, Madison County, Ill., Baltimore, Md., and St. Louis city and county and Jackson County, Mo. It also offers side essays on notable scandals among high-rolling lawyers, trial lawyer-AG alliances, and pro-plaintiff’s-bar lobbying efforts.
Some coverage of the report: Pero, ShopFloor (with this and this on AG alliances), Ambrogi, Genova, CalBizLit (”We’re Number 6! We’re Number 6!), TortsProf, Miller (Baltimore), and Turkewitz (cross-posted from Point of Law; also note this recent post).
* Commenter VMS makes a case that Long Island does not belong on such a list.
{ 5 comments }
{ 6 comments }
Point of Law Volokh