Overlawyered: Chronicling The High Cost Of Our Legal System

Archive for February, 2008

Jamie Leigh Jones, Tracy Barker, & “Halliburton” IV

Bizarro-Overlawyered, the Huffington Post, Alternet, and others on the Left continue to bang this drum with completely false accounts of the law and facts in their campaign to deprive consumers of the choice of mandatory arbitration: “The notion that sexual assault cannot be tried as a criminal matter but has to be arbitrated in secret arbitration and treated as a labor dispute is simply beyond belief.”

Beyond belief indeed. Let’s count the lies of commission and omission:

  • Whether a private civil claim against Halliburton or KBR is required to be arbitrated has nothing to do with whether the Department of Justice decides to criminally prosecute for sexual assault. The DOJ can try this as a criminal matter, but have chosen not to. That may be a scandal on its own, but not one having to do with arbitration clauses.
  • The arbitration clause does not prohibit Barker from bringing civil suit against her alleged rapist (and, indeed, her case continues in the proper federal district court venue).
  • The arbitration clause does not require the arbitration to be “secret.” (By the way, in December, I wrote to Jamie Leigh Jones’s attorney, Todd Kelly, and offered to publicize his arbitration briefs documenting Jones’s original summary judgment claims before he tried a second bite at the apple in court. Still no response over six weeks later.) The arbitration is only as secret as the participants want it to be.
  • And, oh, by the way, for all the claims that one can’t get justice in arbitration? Today the New York Times reports that two women who claimed sexual assault, Mary Beth Kineston and Pamela Jones, won their arbitration cases against KBR. If they’d brought civil suits, they’d still be litigating. Yet somehow, not once in all the months of controversy on the issue did any news reporter mention this non-trivial fact as the slurs against arbitration were repeated over and over.

Let’s not confuse issues. Sexual assault and rape are criminal acts, and should be prosecuted criminally. To the extent KBR was responsible for the very plausible allegations of creating an environment of sexual harassment by its employees and failing to respond to hostile environment claims, they should be civilly liable in the forum contractually agreed to. But either of these issues has nothing to do with the third issue, the availability of mandatory arbitration as an option in contracts.

Earlier: Jamie Leigh Jones (Dec. 12-16), Jamie Leigh Jones (Dec. 20), Jamie Leigh Jones (Dec. 21); see also Overlawyered’s arbitration section.

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Coaching medical witnesses

An instruction sheet for doctors providing defense-side “independent” medical exams in injury cases reads in part as follows:

# Point out whatever findings or claims are not related [to the sued-over incident]. Otherwise be silent on causal relationship.

# If prognosis appears good, then state that – otherwise be silent

# If you can state that plaintiff can participate in all normal activities, do so. If not, be silent

Eric Turkewitz, who brings this story to public attention (Feb. 12), wonders what ethical questions might be posed for both lawyers and doctors when expert witnesses are coached in this way to give partial and incomplete (to say no more) testimony. I don’t know what New York legal and medical authorities would do, but in the mother of all witness-coaching scandals in recent years — the inadvertent release of Baron & Budd’s “Preparing for Your Deposition” memo in asbestos litigation in Texas — nothing at all wound up being done by established authorities to discipline or punish the plaintiff’s lawyers involved. In fact, even more incredible, Baron & Budd succeeded in hiring more than one well-known academic ethics specialist to sign affidavits attesting that the coaching practices were in no way objectionable — details here and here (see pp. 161 et seq. of Brickman’s Pepperdine article). So if Integrated Risk Services, Inc., of Long Island, New York, which bills itself suggestively as a firm providing “Attorney Managed Independent Medical Consultation Services”, finds itself in hot water, perhaps it should give Prof. Silver in Austin a ring.

P.S. Jane Genova at Law and More doubts it works well before juries — though of course persuasiveness to a jury might not be the only objective for those who engage in coaching.

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Lost laptop = $54 million?

Bob Sullivan, MSNBC “Red Tape”, Feb. 12:

How much compensation does a consumer deserve for the loss of a laptop computer loaded with personal information? Raelyn Campbell figures it’s $54 million — if you throw in a little extra for lost time and frustration.

Six months after bringing a damaged laptop computer into a Best Buy electronics store for repairs, and three months after the firm admitted losing it, Campbell filed the whopper of a lawsuit recently in Washington, D.C., Superior Court….

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Scruggs: blogs deny me fair local trial

In a motion to change venue, the famed tort lawyer’s defense attorneys complain about Mississippi-focused “web logs (blogs) that report, in excruciating detail, every event in the prosecution and defense of the Scruggs criminal case” and related proceedings (Folo, Feb. 12). Does this mean we nationally-focused blogs don’t count as excruciating?

P.S. Commenter “OBQuiet” adds, “Odd that his own frequent comments and leaks to the press didn’t deny his opponents a fair trial. How could that be?”

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Lerach sentenced to two years

Over decades, the class-action titan paid secret kickbacks to pliant “representative” plaintiffs, then systematically falsified the nature of his relations to those plaintiffs the better to deceive judges, opponents, competing class action lawyers, and class members. He and his defenders are now portraying his offenses — even the systematic lying to courts — as minor and victimless. For some indications of why our legal system takes a very different view, see my WSJ op-ed of a year and a half back. Per Peter Lattman’s story/interview in today’s WSJ, “Mr. Lerach has requested, and the judge will recommend, that he be sent to Lompoc, a low-security federal penitentiary in Southern California often called a ‘country-club prison’ or ‘Club Fed.'”

Yesterday’s L.A. Times piece by Molly Selvin takes note of Lerach’s “trademark vitriol — he famously threatened to “destroy” companies that balked at settling”. Selvin also quotes NYU legal ethicist Stephen Gillers expressing concern that the spate of Milberg Weiss prosecutions “has to worry [lawyers] even if they’re doing nothing wrong because the Justice Department has shown its willingness to look into how they do business”. Gillers offers no examples of any Milberg lawyers who have been prosecuted despite “doing nothing wrong”, nor does he explore the question of how lawyers might exploit the impunity they would enjoy if the Justice Department permanently refused to “look into how they do business”. Indeed, if Lerach is right when he says kickbacks to named plaintiffs were industry practice in the class-action biz, it would seem that DoJ should have started “looking into how they do business” long before it did.

With fine understatement, Andrew Perlman at Legal Ethics Forum observes that it would “send the wrong message to students” for Lerach to be permitted to set up teaching legal ethics to law students at the University of Pittsburgh as part of his sentence. And taking a contrarian view, Larry Ribstein (via Bainbridge) says an appropriate comparison for Lerach would be to Michael Milken (Drexel Burnham) or Jeff Skilling (Enron) — but in the good sense.

More: This morning’s New York Times, a paper in whose columns Milberg Weiss long enjoyed cordial if not deferent coverage, buries the Lerach sentencing on an inside page of the business section. The paper’s “Dealbook” blog covers the story here. And The Economist recalls a “shouting match” in 2006 between Lerach and a leading British corporate governance advocate over whether litigation was the best way to address shareholder/manager conflicts. Plus: Charles Cooper, CNet.

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Lawyer liable when client pursues illegitimate claim?

“The New Jersey Supreme Court has agreed to review a case that could determine whether a lawyer is liable for furthering a client’s illegitimate purpose in pursuing litigation.” A lower New Jersey court had ruled that even if a lawyer knew his client was moved by an improper purpose in filing a lawsuit, he could not be held liable unless he was pursuing an illegitimate purpose of his own (as opposed to furthering the client’s illegitimate purpose). On top of it all, the lawyer’s former client was defending an action for malicious process on the grounds that he’d relied on the lawyer’s advice in suing. Since this was the same lawyer who was disclaiming all responsibility for the results of the advice, the overall effect might be seen as that of a shell game in which responsibility for the wrongful lawsuit was to be found under whichever walnut shell — attorney or client — wasn’t being lifted for inspection. (Mary Pat Gallagher, “N.J. Supreme Court to Take Up Issue of Lawyer’s Liability for Client’s Baseless Claim”, New Jersey Law Journal, Jan. 31)(LoBiondo v. Schwartz).

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