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Merry Christmas And Happy Holidays!

December 24, 2008

American Courthouse wishes all our readers a joyous Christmas and a safe, happy New Year.  I’ll be taking a few days off from the blog, but please rejoin us on January 5th.

Posted by Dan Pero | Filed Under Michigan | Leave a Comment 

More On Loser Pays

December 24, 2008

I’ve had a few posts in recent weeks on the “loser pays” reform and a new report by Marie Gryphon of the Manhattan Institute promoting this idea. “Loser pays” – which is used by virtually every economic competitor of the U.S. – cuts down on frivolous lawsuits by requiring the losing side to pay the winning side’s court costs, including attorney’s fees.

Trial lawyers argue that “loser pays” reform would limit access to the courts by plaintiffs with low incomes. But, as a Wall Street Journal article pointed out yesterday, Ms. Gryphon’s report “zeroe[d] in on a long-overlooked component of the loser-pays system: insurance that covers legal fees.” In the process, she has exposed the trial bar’s main argument against “loser pays” as a canard.

Countries that use loser pays, including Germany, Canada and the U.K., allow people to purchase insurance policies to cover the cost of legal fees. That way, “if people need to file suit, they know their costs are covered – even if they lose.”

“Insurance definitely strengthens the argument for ‘loser pays,’” says Richard Nagareda, a professor at Vanderbilt Law School. Mr. Nagareda says that interest-group politics might explain the suspicion of the plaintiffs’ bar toward a loser-pays system.

Professor Nagareda is right, but the real explanation for trial bar opposition is even simpler: greed. By curtailing frivolous lawsuits, “loser pays” has proven to dramatically lower overall litigation expenses, which cuts the trial bar’s rake. And that’s a reform Trial Lawyers Inc. simply can’t stomach.

Posted by Dan Pero | Filed Under Tort Reform, Trial Lawyers | Leave a Comment 

So Much For Removing Politics From Judicial Selection

December 24, 2008

Proponents of “merit” selection – where a committee dominated by lawyers meets in secret to pick judges – always claim this scheme will remove filthy “politics” from the judicial selection process. Considering this system strips voters of their fundamental constitutional right to vote for their public servants on the bench, it’s a pretty thin argument – even if it were true.

But it’s not.

I’ve written before that “merit” selection just moves politics into the smoke-filled room, but it appears I’m wrong.  In Florida, Governor Charlie Crist and the state’s Judicial Nominating Commission are engaged in a full-scale and very public political battle over a Supreme Court vacancy, with commissioners and members of the governor’s staff publicly trading barbs and special interest groups pondering whether the “fix” is in for the seat. Editorials in major Florida newspapers blare that “the commission’s credibility is gone” and fret that the whole matter represents “the worst kind of judicial politics.”

You can read my previous posts for background here, but the upshot is that the allegedly non-partisan commission tried to force a slate of nominees on Gov. Crist that he felt lacked diversity. The commission went back behind closed doors and, after a heated 5-4 vote, sent the governor a new list that included a Hispanic nominee, U.S. Navy General Counsel Frank Jimenez.

The vote didn’t sit well with commissioner Arturo Alvarez, who publicly trashed the decision to add Mr. Jimenez, saying the commission created the “perception that our choice are influenced by the governor…” (Heaven forbid that the legal poohbahs on the unelected commission should actually be accountable to someone.) The Palm Beach Post wants Mr. Jimenez’s selection (if it happens) to “be challenged in court as illegal” and, for good measure, says nearly half the commission should resign.

And this is the system that’s supposed to take “politics” out of judicial selection?

Posted by Dan Pero | Filed Under Florida, Judicial Elections | 1 Comment 

Weaver The Deceiver

December 24, 2008

Michigan Supreme Court Justice Betty Weaver’s judicial antics and her lack of regard for the hard-pressed taxpayers of Michigan are beginning to be noticed by her employers – namely Michigan voters.   

In a letter to the Traverse City Record-Eagle recently brought to my attention, where Weaver will soon be forced to relinquish her taxpayer subsidized second office, Doug Green takes Weaver to task for her reluctance to surrender her perks:

I was beginning to gain some respect for Justice Elizabeth Weaver’s thoughts about Michigan’s Supreme Court.  This respect was shattered after Weaver’s vote against shutting down her state-paid local office in Traverse City. 

Weaver is obviously more concerned about her physical comfort and convenience than her obligations to taxpayers in the state of Michigan….
 
Weaver challenged the amount of cost savings but obviously fails to recognize the control of government spending depends on avoiding thousands of small costs whether it be $400,000 or $1.
   
Weaver’s vote also begs the question as to the validity of her judicial decisions.  Weaver has also publicly challenged the behavior of certain fellow judges.  It appears that Weaver might be just another whiner when her views are not accepted.
   


My previous posts on Weaver’s perk-grubbing can be read here
.   

Posted by Dan Pero | Filed Under Michigan | Leave a Comment 

Good Samaritans On The Hook In California

December 22, 2008

Good Samaritans who try to rescue victims of car crashes or other emergencies can be sued for damages, California’s Supreme Court ruled last week.   For commentaries on the legal underpinnings of the case, check out Overlawyered or WSJ’s Law Blog.  I’d only add that this ruling just deepens our litigation-happy culture and exacerbates the “sue first” mentality that has people thinking it’s OK to sue your drycleaner for $54 million if he loses your pair of pants, or your Little League coach if your child gets struck by a baseball he loses in the sun.

Posted by Dan Pero | Filed Under California, Tort Reform | 1 Comment 

Down On The Bayou

December 22, 2008

The Manhattan Institute’s Center for Legal Policy is out with another update in its valuable Trial Lawyers Inc. series, this time examining the trial lawyer’s paradise of Louisiana.

Louisiana has long been a bottom dweller on both the American Tort Reform Association’s  Judicial Hellholes list and the Institute for Legal Reform’s annual ranking of the nation’s worst legal environments.  The latest Trial Lawyers Inc. report traces Louisiana’s lawsuit-friendly culture to several root factors:

  • In recent years, Louisiana “has become a magnet for mass tort lawyers squeezed by comprehensive tort reform in neighboring states such as Texas and Mississippi.”  Big asbestos firms such as Baron & Budd of Texas have joined home-grown tort kingpins like Russ Herman to make Louisiana a haven for mass torts against asbestos, tobacco and pharmaceutical companies. 
  • Over the past several years, Louisiana’s Supreme Court has also “move[d] away from long-standing limitations on damages recoverable in litigation,” while lower courts have “permitted novel new theories of injury” that encourage enterprising trial lawyers to file more litigation and significantly increase the legal risks to corporate defendants. 
  • Louisiana pension funds have also emerged as the most active participants in securities class action litigation.  In 2004, one Ohio judge chastised the Teachers’ Retirement System of Louisiana for being a “professional plaintiff”

Not surprisingly, Hurricane Katrina-related litigation has been one of the prime growth areas for Trial Lawyers Inc. in Louisiana.  The first federal Katrina case to go to trial was withdrawn before it reached a jury after evidence emerged that “the damages the plaintiffs were seeking had already been paid by the insurer.”  But “thousands of lawsuits … remain unsettled, and more lawsuits have been filed in the wake of subsequent hurricanes such as Gustav.” 

The report credits Louisiana’s Supreme Court for refusing to overturn the state’s long-standing cap on damages in medical liability cases.  The state legislature has also passed laws that will help remove “junk science” from Louisiana trials. 

“Still trial lawyers in Louisiana have been busy in their own behalf.  Their allies in the legislature introduced a bill this year that would have exempted some damages from the state’s medical-malpractice cap, thus driving up insurance premiums for doctors.  Another bill threatened to double the length of time that a plaintiff would have to file a lawsuit, increasing litigation risks to all businesses.”

One bright spot the report failed to mention is Louisiana Governor Bobby Jindal, who is considered a rising political star.  As Governor Jindal works to rebuild Louisiana’s economy, he’ll need to keep his eye on trial lawyer-inspired legislation that would kill corporate investment and job creation, while pushing for new reforms that protect companies from abusive litigation. 

Posted by Dan Pero | Filed Under Louisiana, Tort Reform, Trial Lawyers | Leave a Comment 

The Last Word On The $54 Million Pants

December 19, 2008

Carter Wood over at NAM’s Shopfloor blog has what will hopefully be the last word on the Washington, DC judge who sued his dry cleaner for $54 million after the store lost his favorite pair of pants.  Judge Roy Pearson, who lost his seat on the bench as well as his lawsuit, exhausted his final appeal yesterday when the District’s highest court failed to reverse the lower court’s decision.  The decision must have come as a relief to Jin Nam and Ki Chung, owners of Custom Cleaners, but it was surely a Pyrrhic victory.  The Chungs were forced to spend over $100,000 in legal fees and close several of their stores to achieve “justice” in America’s out-of-control legal system.

Posted by Dan Pero | Filed Under Tort Reform | Leave a Comment 

“Merit” Selection 2009 Preview

December 19, 2008

Earlier this week, the Associated Press ran an overview on West Virginia and other states that are considering changing the way judges are selected. (Hat tip: Judgesonmerit.)  In West Virginia, Gov. Joe Manchin recently suggested replacing partisan elections with non-partisan elections, while there have been calls in Pennsylvania, Minnesota and Washington to adopt “merit” selection systems – where a committee controlled by lawyers meets in secret to pick judges, rather than voters.

Opponents of democratic judicial elections – such as Malia Reddick, research and program director for the American Judicature Society – say that “for merit selection to remain a legitimate option, I think there needs to be more openness and public involvement.”  If “openness” and “public involvement” are critical factors in a “legitimate” judicial selection process, then only one system fits the bill: Democratic elections.

Posted by Dan Pero | Filed Under Judicial Elections, West Virginia | Leave a Comment 

Dangerous Liasons In America’s Judicial Hellholes

December 17, 2008

Carter Wood over at NAM’s ShopFloor blog culls some more interesting material from the American Tort Reform Association’s (ATRA) 2008 survey of America’s Judicial Hellholes – this time on the unholy alliance between “ambitious state attorneys general and private attorneys they hire on a contingency basis to sue business on behalf of the state.”  According to ATRA:

It’s a system of legal kickbacks known as “pay to play,” wherein lawyers who contribute to the campaigns of the state’s highest ranking attorney [the Attorney General] can then get a contract for a piece of the action and, in some cases, develop the action themselves and get the go-ahead to pursue it in the state’s name.

ATRA cites Mississippi, Ohio, West Virginia and Rhode Island as “examples of this undemocratic, abusive process,” says Mr. Wood.  I guess Illinois was left off the list because in that state “pay to play” only gets you a U.S. Senate seat, not millions in legal fees.

Posted by Dan Pero | Filed Under Tort Reform, Trial Lawyers | Leave a Comment 

Is The Right To Vote Less Important Than The 1st Amendment?

December 17, 2008

Our gavel grabbing friends over at Justice at Stake have a post on a report issued at FactCheck.org that “dissects judicial mudslinging” in the recent Michigan Supreme Court race, among others.  Viveca Novak of the Annenberg Political Fact Check found the ads on both sides uncivil, misleading, inaccurate and unproven.

Justice at Stake is absolutely right:  State judicial races have become too partisan, too expensive and too negative.  The question is, what should we do about it?  If Justice at Stake proposed that a committee of lawyers be appointed to select which ads should be permitted to go on the air, without any public explanation for its decisions, editorial boards across the country would recoil in horror at this breach of the First Amendment.  But when the group suggests a committee of lawyers be appointed to select which judges should be permitted to sit on the bench, without any public explanation for its decisions, many organs of elite opinion cheer them on.  Go figure.

Posted by Dan Pero | Filed Under Justice at Stake, Michigan | Leave a Comment 

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