“$16.3 million in lawyer fees OK”

Waving big fees through the gate:

A Denver District Court judge overseeing a $50 million class-action settlement from Qwest Communications shot down a shareholder group’s request to limit plaintiff attorney fees to $10 million.

Judge John Coughlin gave short shrift to arguments presented by the Association of U S West Retirees, which asked the court — at the very least — to delay settlement approval until attorneys submitted detailed documentation of their hours and expenses.

At a fairness hearing [Aug. 30], the judge ruled the class counsel, led by Los Angeles law firm Lerach Coughlin, was entitled to $15 million, or 30 percent of the settlement, plus an additional $1.3 million in out-of-pocket expenses….

[The retiree association] wanted proof of each firm’s time records and questioned several six-figure expenses, including $176,000 for meals, hotel and travel and $105,000 for photocopying.

“That’s 25 cents a page using your own office copy machine,” Denver attorney Curtis Kennedy, representing the retirees, said Tuesday after the hearing. “Don’t we at least get a discount for volume? Why not 5 cents a page?”

…[L]ast month, the association filed its objections over attorney fees, complaining that the more than $16.3 million Lerach had requested would leave just $33 million to be distributed among the thousands of plaintiff shareholders they represented….

[Kennedy] said the blanket $15 million contingency award represented 2.3 times what the plaintiff lawyers actually put into the case. Paralegal time alone would be compensated at the rate of more than $400 an hour.

“Times are changing,” he told the judge. “Shareholders are beginning to feel they need to step up and object…that these attorney fees are getting out of hand.”

How often will they feel it worth objecting if, as here, they get the back of the judge’s hand for their troubles? (John Accola, Rocky Mountain News, Aug. 31).

“Ghost blurber” suit: lawyers got $458K, clients $5K

The Washington Post follows up on the class action filed against Sony over its use of a non-existent blurber to promote several movies (see Aug. 3, 2005, Mar. 13, 2004, Jun. 12, 2001) and finds that only 170 customers filed verified claims, resulting in a payout of $5,085 by the studio. Meanwhile, according to court papers, “the attorneys for the plaintiffs got $458,909. Sony paid an additional $250,000 for administrative fees and costs associated with alerting moviegoers to the settlement and processing the claims,” and donated to charity nearly all the $500,000 that had been set aside to pay consumers. As it happens, “news of the settlement went out on the news wires a month after the deadline to sign up as a claimant had passed”. California appellate judge Reuben Ortega, dissenting from his court’s decision to let the case go forward, had written: “This is the most frivolous case with which I have ever had to deal” and called it a “disgrace” and “farce”. (William Booth, “Big Payday for Lawyers In Sony Fake-Blurb Deal”, Washington Post, Sept. 10). More: Larry Ribstein comments (Sept. 10).

Tobacco do-re-mi

A further reminder just in case anyone’s still hazy on the nature of the fiscal partnership between government and cigarette-sellers ushered in by the 1998 state/tobacco settlement:

A sizeable boost in anticipated tobacco settlement funds for Steuben County could bolster a recent proposal to blacktop more than 10 miles of county roads.

County Administrator Mark Alger said Thursday the county will receive $6 million in new tobacco funds instead of the $792,000 to $1 million announced in late June. The new funds are due to a change in tobacco industry profits.

(Mary Perham, “County gets tobacco funds boost”, Corning (N.Y.) Leader, Sept. 9).

“Katrina as the feds’ Enron”

“The common complaint [by Republicans] is that the president has let the lawyers take over,” reports columnist Robert Novak (“Lawyers vs. Katrina”, syndicated/TownHall, Sept. 8). In all fairness, if that’s the common complaint, it would seem to be a little broad-brush, since NYC mayor Giuliani, whose disaster-response leadership passes as the gold standard, was a lawyer too. Meanwhile, Larry Ribstein (Sept. 6) says federal officials are lucky they don’t have to live by the standards they prescribe for private business on such matters as “internal controls” and security planning.

His onion-scented handkerchief

Another tidbit from Sadakat Kadri’s colorful history The Trial, which I reviewed yesterday:

Howe’s [legendary NYC courtroom lawyer William Howe, whose heyday was the late 19th century] most remarkable talent, a skill that won him plaudits from colleagues and hoodlums alike, was an apparent ability to weep at will. Although [prosecutor Francis L.] Wellman suspected that he used an onion-scented handkerchief to get in the mood, the ducts, once opened, flowed steady as a siphon, and never were they deployed more effectively than during his summation in 1887 for a client named Edward Unger.

Read On…

Army Corps sued over levee-building

Over the years the U.S. Army Corps of Engineers has proposed numerous levee and other public works projects aimed at reducing hurricane dangers to New Orleans and elsewhere in the Mississippi/Missouri river system. Environmental groups have sued, and sued, and sued, and sued, and their lawsuits have often succeeded in stopping these flood-control measures. (John Berlau, “Greens Vs. Levees”, National Review Online, Sept. 8; Michael Tremoglie, “New Orleans: A Green Genocide”, FrontPage, Sept. 8). Plus: Prof. Bainbridge (Sept. 9) has more details and spots a Los Angeles Times article raising the issue (Ralph Vartabedian and Peter Pae, “A Barrier That Could Have Been”, Sept. 9). The article’s summary line: “Congress OKd a project to protect New Orleans 40 years ago, but an environmentalist suit halted it. Some say it could have worked.” More: Sept. 14 (environmentalists and project critics respond).

Another data point on the McDonald’s coffee urban legend

You may recall that defenders of the infamous Stella Liebeck McDonald’s coffee case verdict argue that the suit was justified because her beverage was unusually hot, that no one else serves beverages capable of second- and third-degree burns, and that the suit was justified by the change in the restaurant industry to lower temperature of beverages.

None of these urban legends, repeated uncritically by Professor Jonathan Turley and the LA Times (and, sadly, snopes.com, which should know better), are true, and we have another datapoint: Paige Simmons, of St. Jacob, Illinois, is suing Java Junction and the Sweetheart Cup Co. over an allegedly defective cup that spilled hot chocolate on her when she was 6, causing second- and third-degree burns. In a refreshing blow for common sense, the Simmonses’ attorney, Ron Motil, emphasizes that he’s not suing over the obviously-hot temperature of the “chocolate steamer”, but over the cup. (Brian Brueggemann, “Family sues over girl’s burns from hot chocolate”, Belleville News-Democrat, Sep. 8).

Book review in today’s WSJ

I’m in today’s Wall Street Journal (sub – $) with a generally favorable review of Sadakat Kadri’s new book “The Trial: A History from Socrates to O.J. Simpson“. A few excerpts from the review:

By 1880 the criminal trial as an institution had become standardized around the West to the point that readers on many continents found little that was unfamiliar in Dostoevsky’s account of the murder proceedings against Dmitri Karamazov. The lawyers popping up with objections, the witness box and table of evidentiary exhibits, the sensation-seekers filling the gallery — all were as common to the courthouses of San Francisco or Paris as to those of late-czarist Russia. Go back a few centuries to premodern Europe, though, and the forms of justice can seem to our eyes indescribably strange: trial by ordeal, by combat or by compurgation (the collecting of oaths from supporters) and so forth.

And yet the march of progress is not always quite so apparent. We may smile at the premodern practice of putting a pig or haystack on trial for having caused harm to a human being, yet our contemporary law abounds in forfeiture and pure-food cases with headings like United States v. 900 Cases of Peaches (1975) and United States v. One 1967 Pontiac Bonneville Convertible (1973)….

The continuities between past and present are many. Battles over jury selection, so typical today in big trials, propel the plot of Burnt Njal, a medieval Icelandic saga involving arson-murder and bloody retribution. The tendentious interpretation of ambiguous marks on witnesses’ bodies — a hideous aspect of the witch hysteria of the 16th and 17th centuries — reappears in the child-abuse prosecutions of our own era. Denunciation boxes, into which citizens dropped accusing notes in Inquisition times, popped up in police stations across Russia in the 1930s. Hype-fraught celebrity trials? They date back pretty much forever and serve useful purposes, such as calling attention to social problems that would never stir public debate if left abstract….Regarding the emotionally manipulative style of some courtroom champions, Mr. Kadri finds plenty of precedent. He quotes the 1897 Tennessee Supreme Court, which said that “tears have always been considered legitimate arguments before a jury. Indeed, if counsel has them at his command, it may be seriously questioned whether it is not his professional duty to shed them whenever proper occasion arises.”

As for glittering but empty turns of courtroom rhetoric, Johnnie Cochran was just building on a tradition that goes back to Shakespeare’s time. “Elizabethan schoolboys,” Mr. Kadri writes, “were commonly taught adoxography, the art of eruditely praising worthless things….The first English treatise on the subject appeared in 1593 and contained essays celebrating deformity, ugliness, poverty, blindness, drunkenness, sterility, and stupidity. Its preface claimed that it would be particularly useful to lawyers.”

Read the whole thing here if you are a subscriber, or go out and buy a copy of the Journal. Incidentally, the Journal’s editors had to drop a couple of paragraphs of my original review draft for space reasons. Here they are:

* On the centuries-old practice of digging up the rotting remains of deceased persons to make them stand trial on criminal charges, a judge named Pierre Ayrault observed in 1591 that after all it is natural to regard the reputations of the dead as of continuing interest — wouldn’t we want to free a wrongly accused decedent from suspicion? That still didn’t explain why it would be needful to exhume a corpse, so Ayrault suggested a painting of the accused be hung in court instead.

* On the differences, some apparent and some real, between American and British justice: “Plea bargaining has never been given legal recognition in England. Barristers nevertheless haggle over pleas and judges give ‘indications’ of their likely sentences almost every day in almost every court of the land.” On the other hand, some differences are very real indeed, as with British judges’ power to summarize for jurors the weight of evidence in a case: “The summing-up invariably pays lip service to the principle of jury independence — typically, by ending a devastating criticism with the observation, ‘It is, of course, entirely a matter for you.'”