Overlawyered: Chronicling The High Cost Of Our Legal System

Posts Tagged ‘Texas’

September 17 roundup

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August 20 roundup

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Deceased Austin lawyer probed over demand letters to restaurants

Prominent Austin, Texas lawyer and judicial candidate Mina Brees, who died Aug. 7, is the target of a probe by the state’s attorney general after sending scores of letters to Houston and Dallas area restaurants advising them that their business name registrations had expired and that they could buy them back by dealing with her at a cost of $20,000 or $25,000 each. The letters informed them that a client, Chicksports Inc., had taken possession of the names, but did not mention that she herself was the president of Chicksports or that it operated from the address of her solo-practice law firm. The Texas Restaurant Association had advised its members not to pay and said under state law lapses in name registrations do not deprive restaurants of their legal rights to their distinctive names. Brees had been on strained terms with a famous son, NFL quarterback Drew Brees. [Mike Tolson, Houston Chronicle/KHOU, Austin American-Statesman, more Houston Chronicle, Tex Parte, DeadSpin] Per the Austin American-Statesman, “Brees received the Austin Bar Association’s 2005 professionalism award for legal ethics and professionalism.”

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U.S. Silica in the blogosphere

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.

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Beaumont justice and the silicosis mass torts

“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.

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Texas Senate considers asbestos reform rollback

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.

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March 23 roundup

  • Probate court in Connecticut: bad enough when they hold you improperly in conservatorship, but worse when they bill you for the favor [Hartford Courant]
  • Does “Patent Troll” in World of Warcraft count as a character type or a monster type? [Broken Toys]
  • 102-year-old Italian woman wins decade-long legal dispute, but is told appeal could take 10 years more [Telegraph]
  • “This Cartoon Could Be Illegal, If Two Iowa Legislators Have Their Way” [Eugene Volokh]
  • David Giacalone, nonpareil commentator on attorneys’ fee ethics (and haiku), has decided to end his blog f/k/a. He signs off with a four-part series on lawyer billing and fairness to consumers/clients: parts one, two, three, four, plus a final “Understanding and Reducing Attorney Fees“. He’s keeping the site as archives, though, and let’s hope that as such it goes on shedding its light for as long as there are lawyers and vulnerable clients. More: Scott Greenfield.
  • Even they can’t manage to comply? Politically active union SEIU faces unfair labor practice charges from its own employees [WaPo]
  • Judge in Austin awards $3 million from couple’s estate to their divorce lawyers [Austin American-Statesman]
  • “Keywords With Highest Cost Per Click”, lawyers and financial services dominate [SpyFu]

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