Posts Tagged ‘deep pocket’

Kim Strassel on “trial lawyer earmarks”

Even the tort bar understands how deeply loathed it is by the American public. The Association of Trial Lawyers of America didn’t last year change its name to the bland “American Association for Justice” for nothing.

So no, even the old liberal lawsuit bulls such as Henry Waxman or [Barney] Frank won’t start calling for the repeal of the 2005 Class Action Fairness Act, or for other blatant legislative assists to the trial bar. Instead, Democrats intend to reward the legal industry with more subtle payoffs. The most obvious gift will be a moratorium on further legal reform. Beyond that, Democrats will rely on two tried-and-tested tools to aid and abet the legal community. They’ve employed both in the past few weeks. …

A Democratic Congress means far more regulation, and any new regulation is an opportunity to insert a line or two giving the tort bar greater rights to sue. These provisions will be subtle and technical, designed to escape notice. But just in case they do raise a red flag, they’ll also be tucked into bipartisan or must-pass legislation (such as the Iraq supplemental), making it that much harder for Republicans or President Bush to shoot them down.

It’s a measure of how well Republicans played tort abuse to their political advantage that Democrats today are reluctant to brazenly flack for the legal class. If the GOP wants to keep it that way, it will have to start working harder to expose the quiet ways in which the left is now helping trial lawyers bilk the system.

The other means is by taxpayer-funded subpoenas and hearings to develop evidence and publicity for the trial bar.

Strassel claims that there is such an earmark created at the behest of ATLA, subtly providing an implied cause of action against chemical manufacturers in H.R. 1591, the soon-to-be-vetoed Iraq War supplemental funding bill. Indeed, the provision is difficult to find amidst the provisions for the milk income loss contract program and renewal grants for women’s business centers. I suspect Strassel is referring to the anti-preemption provision in Section 1501(a) of the bill, effectively permitting lawsuits against chemical facilities that comply with Department of Homeland Security regulations without once mentioning the word “lawsuit.” If there is a terrorist attack on a chemical facility, trial lawyers will have a deep pocket to blame.

Perhaps we, as a society, would agree with the Democratic Party and would prefer trial lawyers, instead of the Department of Homeland Security, to be in charge of chemical plant security. (Trial lawyers do have the advantage of getting to operate only in hindsight.) But shouldn’t that critical decision be made openly?

Filed under: AAJ, deep pocket, politics, trial lawyer earmarks

Crime does pay

Over at That Other Website, there’s a link to a Findlaw column by Anthony Sebok, entitled, “Could Virginia Tech Be Held Liable for Cho Seung Hui’s Shootings, If An Investigation Were to Reveal It Had Been Negligent?” The subtitle of the column, which tells you all you need to know, is “The Unfortunate Answer.”

To be fair, Sebok is a law professor, and the question posed is a legitimate academic one: what, if any, legal liability does Virginia Tech face? And also to be fair, Sebok speaks the right words about how Cho bears the primary blame. But at the same time, the article illustrates that the trial lawyers of the sort Overlawyered complains about every day are not revolutionaries; they’re just doing what they’ve been taught in law school. Namely, find a legal theory under which one can blame third parties.

Sebok is careful not to declare the university liable, but at the same time, he doesn’t think there’s anything farfetched about considering that it might be. He doesn’t think there’s anything wrong with trying to assign blame to the school for the acts of a criminal. Ultimately, he’s disappointed because Virginia is “notoriously pro-defendant,” and so even if the victims’ families can blame the state, the “final indignity” is that they could likely “only” win a maximum of $100,000. For the actions of a criminal.

Read On…

Filed under: deep pocket, Mississippi, Virginia Tech

Price of forgiveness

This is an old story, but I thought it mildly topical enough to be worth mentioning: CBS aired a television movie last Sunday night about a Tampa man named Bruce Murakami, whose wife and daughter were killed in a 1998 car accident after being hit by a drag-racing teenager. Murakami wanted revenge on the teenager, but after a multi-year campaign to have the teenager charged with a crime, Murakami had a last minute change of heart and forgave the kid. Instead of having the kid sent to jail, he started working with the kid to convince other teenagers to drive safely. The point of the story was how forgiveness was so noble and wonderful, and how it saved Murakami life. (Hey, it was a “Hallmark Hall of Fame” movie.)

An inspiring story, I suppose. The movie forgot to mention, though, that forgiveness apparently only extended to people without deep pockets; Murakami may have let the kid walk free, but that didn’t prevent him from suing Dollar Rent-A-Car because the company had rented out — to the kid’s parents — the car that the kid was driving when he killed Murakami’s wife and daughter. (“Dollar settled the case for an undisclosed amount.”)

Filed under: deep pocket

“Obama Makes Inroads Into Edwards’ Trial Lawyer Base”

For better or worse, John Edwards isn’t as special this time around:

For years Edwards has relied on the support of his fellow trial lawyers’ deep pockets to help get him elected — first to the Senate and then three years ago, when he made a run at the White House and then became running mate to Sen. John Kerry, D-Mass., who won the Democratic nomination. But as Edwards mounts his second presidential bid, he has struggled to attract plaintiffs lawyers beyond his stable of longtime donors, just as other Democratic candidates, such as Sens. Hillary Clinton from New York, Barack Obama from Illinois, and Joseph Biden Jr. from Delaware, have been actively wooing the plaintiffs bar. …

Many of the trial lawyers who supported the Kerry-Edwards ticket in 2004 have chosen to throw their lot in with Obama or are keeping their options open by donating to multiple candidates. The fracturing of the trial-lawyer constituency could have dramatic effects on the total dollars Edwards will be able to raise. …

Also cited as hurting Edwards with some past givers: the steps he took to moderate his image on litigation reform during the 2004 campaign, including his endorsement of pre-screening of merit in medical malpractice cases. Even Sen. Biden is making inroads:

Biden has long been seen as a supporter of the trial lawyer community on the Senate Judiciary Committee, where he has opposed legal-liability proposals and bills that would limit claims against health-care providers. No candidate is more visibly tied to the trial bar than Edwards. But Clinton and Biden, who also headlined a national trial lawyer convention in Miami Beach in February, have both said they’re opposed to caps on punitive damage awards.

Despite Obama’s silence on the issues trial lawyers care about, those who support him say they are confident he will back trial lawyers when the time comes.

(Anna Palmer, Legal Times, Apr. 9).

Filed under: Barack Obama, deep pocket, Delaware, Illinois, Joe Biden, John Edwards, politics

Deep pocket files: Newark police chase

The outrage is so common, we may have to create its own category. This one is in Newark, New Jersey: three car thieves running from police in a stolen SUV swerved into a group of pedestrians. Taxpayers are on the hook for a $3.6 million settlement, a substantial chunk of which will go to attorneys. [AP/Newsday] The Newark police department has “changed its chase policy” as a result; no mention in the press coverage that now criminals know that they are more likely to escape if they engage in a dangerous high-speed getaway, they’re more likely to engage in a high-speed getaway that will endanger the public. Earlier: Feb. 28; Feb. 27; Jan. 9; Nov. 27, 2005 and links therein.

Filed under: chases, crime and punishment, deep pocket, New Jersey, police, safety, taxpayers, third party liability for crime

Cathy Seipp

The end is very near for Cathy Seipp, and I’m frustrated with my inarticulateness in conveying my sorrow and anger over the injustice and absurdity of her untimely death. I was an early fan of hers, noticing that her idiosyncratic tastes in books and television corresponded nicely with mine. I first started corresponding with the feisty reporter when, in the course of self-Googling, she discovered a link to her Mediaweek columns on my old homepage in 2000; she generously quoted me when a tidbit I told her about the old Burns & Allen show ended up as an anecdote in one of her columns. We were on opposite coasts by 2001, but managed to say hello regularly on the occasions when one of us made the journey in one direction or the other. Every time I saw her, she was surrounded by lively and intelligent and bright friends drawn by her sharp wit and no-nonsense style, and I was always sorry that I wasn’t able to spend more time around that latterday Algonquin Round Table. I admire how resolute she was in the face of death; I regret that we missed each other last time she was in DC, and that the last time we broke bread together wasn’t in a better restaurant than the Sheraton breakfast buffet as we had agreed.

To perhaps inappropriately steer the conversation to the subject of this site, as noneconomic losses go, it’s hard to think of a larger one than the premature loss of Cathy Seipp; her family and friends will miss her love, her laughter, and her pointed observations; we’ll all miss her writing. Despite that, there would be no justice if one were to randomly select a deep pocket and demand it pay us all millions to compensate us for that loss. Losses are suffered without compensation all of the time; people are untimely struck down by aneurysms, mental illness, skiing accidents—and cancer.

The fact that, in some cases, there is the possibility of constructing a plausible scenario to blame a deep pocket and force it to compensate those who have suffered a loss does not ineluctably mean that that wealth-transfer must occur for justice to be done. Often it’s quite the opposite. That we at Overlawyered often argue against such compensation as contrary to the long-term interests of the public good does not mean that we do not value life or understand the hurt or unquantifiable costs of a life taken too soon. The case of Cathy Seipp, who will die of a cancer that just happened to happen to her without anyone to blame or sue, and the sorrow we feel for her loss, is refutation enough of that strawman.

I’m proud to have been able to call Cathy Seipp a friend, and ashamed that I cannot do justice to her memory through my own words. Let’s use hers: Cathy encountering a liability-fearing school bureaucracy over an asthma inhaler, on the miracle of public-school teacher tenure, and on the Guardian‘s counterproductive 2004 election letter-writing campaign. Go to her web page and leave good wishes.

Filed under: about the site, deep pocket

Extreme Makeover, Legal Edition

On Friday, a judge in Los Angeles dismissed claims by a set of five siblings against ABC Television, which airs Extreme Makeover: Home Edition, based on the novel legal theory that a lawsuit over breach of contract should actually be based upon some provision of the contract. The show had built a new house for the couple that took the siblings in after their parents were killed; after the show aired, the siblings sued ABC and the couple, claiming that they were driven out of the house and the couple had taken donations meant for the siblings.

The judge ruled that ABC’s contract was with the couple, not the siblings. Other allegations in the suit, including fraud, negligence and intentional infliction of emotional distress, remain; it’s not clear from coverage whether any of these involve ABC. (AP, Mar. 3; earlier details of the proceedings from the Whittier Daily News, Feb 22.)

MSNBC’s Dan Abrams interviewed the plaintiffs at the time the suit was filed; their lawyer was unable to give a coherent legal explanation as to why ABC should be liable: Transcript: Aug. 16, 2005. (Deep pockets, anyone?)

Previously covered on Overlawyered Aug 12, 2005.

Filed under: deep pocket, emotional distress

Immunity – up to a point

Walter stole my thunder on the dismissal of the blog comment lawsuit against Lycos, but I thought it raised an important point. One of the common refrains of the Trial Lawyer crowd is that tort reform is not needed, because there are already mechanisms for the courts to deal with frivolous litigation, and because contingency fees mean that plaintiff’s lawyers have no incentive to take on meritless cases. The theory of tort reformers, on the other hand, is that the lottery nature of litigation means that plaintiff’s attorneys can take on long shot cases, because they only need to win a handful of “deep pockets” suits to come out ahead.

Which theory best explains lawsuits like this one? It’s difficult for Section 230 of the Communications Decency Act to be much clearer. It grants (as the First Circuit noted) “broad immunity to entities, such as Lycos, that facilitate the speech of others on the Internet.” This isn’t controversial; the First Circuit described its decision as “joining the other courts that have uniformly given effect to Section 230 in similar circumstances.” (Emphasis added.) So why would the plaintiffs not only sue on such a meritless theory, but actually appeal after losing in the District Court?

(I should note that I don’t have any specific evidence that this was a contingency case; nonetheless, the larger issue — namely, how can we successfully disincentivize plaintiffs and plaintiffs’ lawyers from bringing meritless suits — remains. Immunity from liability is great — but it isn’t the same as immunity from litigation. Lycos won this suit — twice — but how much did these victories cost?)

UPDATE: I had forgotten that the plaintiffs in this case, UCS and its CEO, Michael Zwebner, and their lawyer, John Faro, are no strangers to Overlawyered; they’re the same folks who sued Wolf Blitzer because of posts on Lycos’s message board from an anonymous poster who used the screen name Wolfblitzzer0. (See also updates on March 12, 2005; October 15, 2005).

Filed under: contingent fee, deep pocket

Billion dollar cleanup

Overlawyered has been covering the Rhode Island lead paint trial for quite some time. A year ago last February, a jury found lead paint makers liable (and see links therein); on Monday, a Rhode Island judge issued a 197 page opinion (PDF) rejecting all the motions filed by the manufacturers, and upholding the jury verdict. Associated Press; Providence Journal. There will, of course, be an appeal.

It’s a case which fits well with the theme I mentioned yesterday, with all the elements of litigation as Robin Hood-style wealth redistribution:

Creative lawyering, to turn a non-case into a case: this is really a products liability case, but if it had been tried under that theory, the state would have lost. So the plaintiffs called lead paint a “public nuisance,” even though any harms here are identifiably private.
Irresponsible victims: The proximate cause of lead-paint-related injuries is the failure of homeowners and landlords to fix peeling paint. But we wouldn’t want to hold people responsible for maintaining their own homes.
Going after the deep pockets rather than wrongdoers: Homeowners can’t sue themselves, and landlords don’t have nearly as much money as Sherwin Williams and the other paint manufacturers? So of course the paint manufacturers are liable. Never mind that the paint was perfectly legal when it was sold, sometimes as long as 50 years ago or more. Never mind that the plaintiffs didn’t and couldn’t prove that any of the outstanding problem was caused by any of the defendants.
Unlimited liability, unrelated to any money made by the manufacturers for the products in question: the judge hasn’t even figured out how much this cleanup will cost, but he’s nonetheless sure that it’s reasonable to hold that the paint companies should have done this already. Estimates range from a billion dollars to several billion, to clean up any remaining lead paint.
Dubious benefit to actual victims: people who have children affected by lead paint aren’t the ones who receive money as a result of this case.
Shades of the tobacco cases: private trial lawyers inducing the state to sue, and then then pretending to be acting on behalf of the public.

Of course, we get the obligatory disingenuous comments from the plaintiffs:

Jack McConnell, a lawyer representing the state, called the judge’s decision a “huge, huge victory for lead-poisoned children, homeowners and taxpayers.”

Except, of course, for taxpayers and homeowners who are shareholders in paint companies. Or taxpayers and homeowners who are looking to buy products whose prices will have to rise to cover the costs of lawsuits that may spring up decades down the road because of some unforeseeable risks.

And how it’s a victory “for lead-poisoned children” is a mystery, given that the only outcome of this case is that the paint companies will have to pay for the costs of cleaning up homes. The children who have actually been poisoned do not see a cent from this judgment. Jack McConnell and Motley-Rice, the lawyers “representing the state,” will rake in a few hundred million dollars in contingency fees, though.

Walter Olson also comments at Point of Law.

Filed under: contingent fee, deep pocket, lead paint, Motley Rice, product liability, Rhode Island, tobacco

Thanks for listening…

I want to thank Walter Olson and Ted Frank for honoring me by giving me an opportunity to guest blog here while Ted is away this week.

First, I guess I should introduce myself, for those of you wondering who the heck I am. I’m an attorney licensed in New Jersey, with a practice which focuses on commercial litigation. Aside from myself, I have several relatives who are attorneys, so it should be clear that I have nothing against lawyers. (In fact, despite all the evidence to the contrary here on Overlawyered, I happen to think we perform a useful function.)

My axe to grind is with those (such as the folks over at the website Ted affectionately calls “Bizarro-Overlawyered”) who want to use the courts, not to enforce agreements or to compensate the victims of wrongdoing, but merely as a way to transfer wealth from corporations to trial lawyers, ostensibly on behalf of consumers.

One of my first close encounters with overlawyering was in the early 1990s, when a classmate of mine got drunk, climbed up on a train, and electrocuted himself; coincidentally, this old incident was mentioned on Overlawyered just a few weeks ago. At the time, I was perhaps naively shocked to find out that someone who was so obviously in the wrong could successfully point a finger elsewhere (or in this case, a lot of fingers) and cash in. The case had everything: a grossly irresponsible plaintiff, innocent defendants whose only fault was having deep pockets, and even the failure of immunity laws to prevent abuse of the tort system. Since then, I’ve become less naive, but I’m no less shocked at these types of stories.

Oh, and I used to blog about politics more generally at Jumping to Conclusions, although I haven’t updated that in quite a long while. In any case, I’m happy to be here.

Filed under: deep pocket, electrocution, guestbloggers, New Jersey