Because for Florida Republican officials, sending one hotshot plaintiff’s lawyer with socially conservative views to the U.S. Senate apparently isn’t enough. (Lesley Conn, Pensacola News-Journal, Aug. 17) (more on Joe Scarborough: Sept. 15, 2003, Jan. 3, 2004)(more on incumbent Sen. Mel Martinez: Dec. 15, 2003, Sept. 3, 2004, PoL Jan. 12 and Jul. 7). Scarborough was the headliner for the Republican Trial Lawyers rally at last year’s ATLA convention (PDF); another headliner at the same convention was perennial bete noire of this site Robert F. Kennedy Jr., whose on-air chumminess with Scarborough, sometimes seen as an instance of mutual admiration across ideological lines, appears not quite so strange given that RFK Jr. has collaborated with Scarborough’s firm in the pursuit of big-ticket cases. Update Aug. 21: false alarm this time, though he’s pretty clearly expecting to run for something in future.
Archive for August, 2005
No driver partitions in Greyhound buses? That’ll be $8 million
On Oct. 3, 2001, a mentally disturbed passenger from Croatia produced a box cutter and began slashing the driver of a Greyhound bus traveling between Nashville and Chattanooga, Tenn. In the ensuing crash six passengers including the attacker were killed. Now, in one of many lawsuits proceeding from the incident, a jury has decided that Greyhound should pay $8 million to Sharon Surles, a Saginaw, Mich. woman severely disabled by the crash. On what theory, you ask, was the large intercity bus company negligent for not preventing the crazed attack?
[Plaintiff’s attorney Andrew Berke of Chattanooga] said that in the four years before the crash, Greyhound had at least 43 incidents of a passenger attempting to assault a driver or grab the steering wheel of a moving bus.
“Despite the prevalence of attacks, Greyhound never did anything to protect its drivers,” Berke said.
He said a Greyhound executive in 1997 had asked the manufacturer if they could “put protective barriers” between drivers and passengers.
(“Bus crash after driver cut prompts $8M verdict”, AP/Nashville Tennesseean, Aug. 12; Ian Berry, “Woman wins $8 million in bus crash”, Chattanooga Times & Free Press/MSNBC, undated). Forty-three incidents of assault over four years amounts to a rate of ten per year, not necessarily an impressive crime wave given that Greyhound is the dominant player in intercity bus transport and carried more than 21 million people last year. Moreover, the quote from the lawyer includes no intimation that any of the earlier assaults in fact led to crashes or serious harm to passengers. The best detail, however, is the one portraying the company as culpable because one of its execs once asked about the practicability of driver partitions after which no one seriously pursued the idea. If you’d like an ultra-conservative, cover-your-behind culture to grow up in a big company, just plant the idea that the employee who goes around asking questions about possible different ways of doing things is setting you up for grief down the road after some adverse lawyer portrays the inquiry in question as a smoking gun.
Attorney Berke told the AP that the giant bus company is now moving toward the use of driver barriers, but it’s hardly surprising that such steps would have been rejected in the security climate that preceded the fall of 2001. Drivers of New York City taxis, who are exposed to a far greater risk of passenger crime than drivers of Greyhound buses, widely dislike their city-required partitions of yellowing Plexiglas and tend to leave them open during daytime rides at least, according to a recent article in the New York Times (Sewell Chan, “Taxi Partitions, Born of Danger, May Be Set for a Makeover”, Aug. 9). It’s not even intuitively clear that driver partitions will on net reduce crime on buses, since one of drivers’ key safety duties is to keep order among passengers. What will happen the first time one passenger on a Greyhound bus assaults another while the driver, immurred behind his partition, either doesn’t notice what’s going on or can’t make his authority felt? Do you think the company might get sued then too? (via Day on Torts, who predictably takes the other side of the question).
“Military exercises ‘good for endangered species'”
Good news for the U.S. armed services, which have battled for years for the right to go on using training areas like California’s Camp Pendleton in the face of restrictions arising from endangered species law: “Military exercises are boosting biodiversity, according to a study of land used for US training manoeuvres in Germany. Such land has more endangered species than nearby national parks.” (see Aug. 16, 2004)(via A&LDaily).
Speechcrime at Scottish newspapers
A newspaper in Barrhead, Renfrewshire, Scotland, “is the subject of a racial complaint being investigated by police. It follows a page one article headed Gypsy Fear,” in which the paper, the Barrhead News, claimed the town “could be swamped by gypsies from across Europe” following the establishment of a local encampment by French travellers. (Iain Wilson, “Racist complaint against newspaper”, The Herald (Glasgow), Aug. 11). And a second law enforcement action against published speechcrime has progressed farther than the mere investigation stage:
Alan Buchan, editor of North East Weekly, a free paper based in Peterhead, was recently charged under the Public Order Act, which gives the police powers to arrest anyone whom they suspect of publishing or distributing written material that is threatening, abusive, or insulting and intended to stir up racial hatred.
His paper published an editorial headlined “Perverts and Refugees” which said that a massive refugee camp could be built in the region and highlighted perceived local concerns about what this might mean for the community.
He is scheduled to appear at Peterhead Sheriff Court on September 1.
Buchan says his arrest “harks back to the activities of the old USSR”. (Guy Dixon and Terry Murden, “MediaFile” (second item), The Scotsman, Aug. 14)(via Norvell)
Mississippi latest: Diaz indicted on tax charges
Three days after a jury acquitted Mississippi supreme court justice Oliver Diaz Jr. of charges of taking bribes from prominent lawyer Paul Minor, U.S. District Court Judge Henry T. Wingate unsealed a tax evasion indictment against him which had been kept under wraps lest it prejudice jurors. Included are charges “of evading income taxes due for 2000 and 2001, when [Diaz and ex-wife Jennifer] received $155,000 in loans secured by personal injury attorneys Minor and Richard ‘Dickie’ Scruggs.” (Anita Lee, “Justice Diaz indicted on tax evasion charges”, Biloxi Sun-Herald, Aug. 15; “Diazes indicted”, Aug. 16). The Jackson Clarion-Ledger (Jerry Mitchell, “Diaz now faces tax evasion charges”, Aug. 16) notes that Diaz won’t be automatically removed from office even if convicted of the new charge:
Under state law, those convicted of the following crimes can remain in office -— manslaughter, tax violations, corruption, gambling or “dealing in futures with money coming to his hands by virtue of his office.”
On the other hand, it appears that a judicial watchdog tribunal would still have potential authority to remove Diaz if circumstances seem to warrant. (Geoff Pender, “Heads spinning at judicial watchdog agency”, BSH, Aug. 16; “New indictment makes Diaz’s reinstatement uncertain”, JCL, Aug. 16).
Overpublicized big verdicts?
A few further observations on the L.A. Times piece which Ted dismantled this morning, on the alleged tendency of media coverage of “big” cases to skew public views of the legal system:
* If you look at trade publications aimed at a readership of lawyers themselves, such as National Law Journal, Lawyers’ Weekly and so forth, you find a pattern quite similar to the one in the popular press that alarms the L.A. Times, with gigantic verdicts getting major coverage, and later reductions, reversals and settlements much less. From what I can see, this reflects the news sense of their readership: both plaintiff’s and defense lawyers, as well as many transactional planners, are inclined to invest more time reading the first type of story than the second.
* Why is this? Well, from the standpoint of lawyers as well as most of the other players in the system, a $100 million verdict that’s later overturned (or knocked down to $20 million, etc.) makes for an extremely different data point from a case that comes in at $0 (or $20 million) in the first place. It will have very different implications for defendants’ propensity to offer settlements in the future, for plaintiffs’ demands, and so forth. Even if one had psychic powers and could unerringly predict which big cases would fail to hold up at later stages, it would still be typical for such cases to retain very real influence, one reason for their news value.
* Monday’s L.A. Times piece, like its Sunday predecessor, echoes complaints that the litigation lobby has been making for years (search on “reduced on appeal”). There’s a great unexamined irony here, however, because entirely absent from the Times’s account is the question: who seeks publicity for these verdicts in the first place? A glance at P.R. Newswire is enough to confirm that plaintiff’s law firms and their allies are ordinarily the source of press releases calling attention to big verdicts (here, here, and here, for example), but far less commonly issue releases calling attention to later reductions or reversals on appeal. Most defendants, meanwhile, are anything but eager to stimulate heavy press coverage of big cases that they lose; moreover, many adopt a posture of regarding all publicity about suits against them as harmful even when they prevail, which is one reason it’s common for them to avoid seeking extensive publicity when they manage to secure defense verdicts or post-trial reductions.
In short, the observed pattern of coverage — record-setting verdicts on the front page, post-trial reductions buried on p. C22 — is precisely that sought by the law firms that bring the cases. When the same law firms (through their collective agents such as ATLA) later gripe that the resulting pattern of coverage skews public thinking on wider policy matters, maybe what they’re really saying is, “Hey, next time don’t pay so much attention to our press releases.”
Kevin Drum, whose Washington Monthly blog is Gullibility Central when it comes to this kind of story, is naturally much impressed with the LAT effort.
Furniture from FedEx shipping boxes
Its documentation on the Web calls forth a nastygram from FedEx claiming violations of the Digital Millennium Copyright Act. (Kristen Philipkoski, “Furniture Causes FedEx Fits”, Wired News, Aug. 11)(via Nobody’s Business).
One more Winnebago thought: the Ford Pinto lawsuit urban legend
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?
Myron Levin and the Los Angeles Times do it again
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).
Winnebago/Stella Award myths, pt. 4
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.