Trial Lawyers Behaving Badly (Continued)…
December 17, 2008
Walter Olson over at Overlawyered called our attention to this item today. Seems that two men in New Orleans had to be forcibly separated after escalating verbal taunts turned into a full-fledged brawl that left one man with a sore neck, while the other was led away in handcuffs, fined and ordered to spend the night in jail.
A couple of drunken fans at a Saints game? Late night French Quarter revelers who had a few too many “go” cups?
Nope – just a pair of greedy personal injury lawyers fighting it out for a potential $5 million payday in a case against an insurance company.
According to a report in the New Orleans Times-Picayune, attorneys Madro Bandaries and J. Robert Ates (age 63) were in Orleans Parish Civil District Court on Monday for a hearing on their rival class action lawsuits against Louisiana Citizens Property Insurance Corp. Accounts differ. Attorney Bandaries, “his voice shaking,” claims Mr. Ates put his hands on his shoulders, made a sarcastic comment, then the “next thing you know, he has me on the floor.” Attorney Ates claims it was Mr. Bandaries who made the “snide remark” and later “attempted to kick me in the scrotum” – a tactic so low, dirty and underhanded even Kimbo Slice shuns it.
That’s when things started getting ugly. A couple of observers had to jump in to break up the melee, while a stunned Judge Kern Reese rushed from his chambers to mete out the punishment. “The one thing I am not going to tolerate is lawyers being unprofessional,” Judge Reese pronounced as bailiffs slapped the cuffs on Mr. Ates. It’s bad enough that money-grubbing lawyers have turned our courtrooms into casinos…but a cage fight?
And the Judicial Hellholes Are…
December 17, 2008
- West Virginia
- South Florida
- Cook County, IL
- Atlantic County, NJ
- Montgomery and Macon Counties, AL
- Los Angeles County, CA
- Clark County, NV
These are the worst jurisdictions in America for companies that find themselves on the receiving end of a lawsuit – the true “judicial hellholes”– according to the just-released rankings for 2008 by the American Tort Reform Association (ATRA).
Judicial Hellholes aren’t simply courts that are unusually challenging for corporate defendants. They are “magic jurisdictions” where “trial lawyers have established relationships with the judges” and, for companies, “it’s almost impossible to get a fair trial if you’re a defendant” because “any lawyer fresh out of law school can walk in there and win the case … it doesn’t matter what the evidence is.”
Those aren’t the observations of ATRA or some other legal reform supporter. They represent the refreshingly candid, but chilling assessment of a trial bar insider, someone who knows a thing or two about winning big judgments in tilted courtrooms – none other than Dickie Scruggs who is now wearing an orange jumpsuit after pleading guilty to bribing a Mississippi judge, but not before exploiting his “magic jurisdictions” to rake in billions in legal fees.
ATRA president Tiger Joyce points out that “every dollar spent defending against a speculative lawsuit is a dollar that won’t be spent on research and development, capital investment, worker training or job creation.” Absolutely! But given today’s economic turmoil, when every company is cutting back, those stakes has been raised: Now every dollar that goes into the pocket of some greedy trial lawyer is also a dollar that can’t be spent to keep a worker on the payroll.
ATRA’s annual judicial hellhole reports have probably done as much as any single piece of research to spotlight trial lawyer abuse of our legal system. The 2008 report also includes two new sections: Tort Deform, which looks at efforts by the trial bar to reverse critical legal reforms in many states and a Rogue’s Gallery, which exposes particularly egregious examples of trial lawyer fraud, deceit and dishonesty and calls Congress to account for failing to investigate the scandalous behavior that pervades the trial bar.
As always, Judicial Hellholes 2008/2009 is must reading for anyone concerned about how trial lawyers abuse our legal system for personal gain while destroying good companies and undermining our economy.
More on Loser Pays
December 17, 2008
ShopFloor – the blog for the National Association of Manufacturers – takes another look at “loser pays.” This is where the losing party in a lawsuit pays the legal expenses of the winner, including legal fees. This is a rule that most other countries in the world use to cut down on frivolous lawsuits and could be very effective here in the U.S. I had a post on the same report by the Manhattan Institute’s Marie Gryphon earlier this month.
What Makes A Litigation Hellhole?
December 15, 2008
Jury consultant Robert Samples has an interesting piece in the West Virginia Record that dissects what characteristics typically earn a jurisdiction a designation as a judicial “hellhole” – like West Virginia (Hat tip: Point Of Law). (For a list of all the nation’s judicial hellholes, visit the American Tort Reform Association).
After studying legal environments all across America, Mr. Sample concludes that three main factors turn a jurisdiction into a hellhole:
- A liberal bench that tilts the playing field toward plaintiffs’ attorneys;
- Liberal lawmakers willing to block any effort to reform the legal system;
- A weak business community that leads to an “imbalance of power in the local legal system that favors plaintiffs and is biased against corporations.”
The good news is that litigation hellholes can be transformed into fair, predictable legal environments. Mr. Sample cites Texas and Mississippi, where “the business community and governments…decided to take action.” The bad news is that absent an active, engaged business community that is willing to take a stand – and sometimes take some heat – many courtrooms and jurisdictions will continue to be fully-owned subsidiaries of Trial Lawyers, Inc.
Report from Colorado
December 13, 2008
During a recent trip to Colorado, I spoke with a group of business leaders and state lawmakers at the invitation of the Colorado Civil Justice League – an event covered by the online news service “Face the State.”
Over the last 30 years, bipartisan majorities in the Colorado legislature passed 36 separate legal reform bills, each of which was signed by either a Democrat or Republican governor. This bipartisan consensus helped create one of the fairest and most predictable legal climates in the country – an environment that helped propel business investment and job growth in Colorado.
But a reinvigorated Colorado trial bar and sympathetic majorities in both houses of the Colorado legislature are working to derail that progress. Trial lawyer Terrance Carroll is set to become the next House Speaker and the legislature has shown an interest in weakening state laws that protect doctors, hospitals and health care workers from frivolous lawsuits. While Colorado Attorney General John Suthers has always been a strong rule-of-law advocate, there are other warning signs that the state’s liability climate might be taking a turn for the worse.
According to Steve Hantler’s latest ranking of state legal climates for Directorship, Colorado fell sharply last year from having the 10th best legal climate to the middle of the pack – 22nd. Mr. Hantler reports that anti-tort reform Governor Bill Ritter has already signed several pieces of legislation that tilt the courts toward the plaintiffs’ bar. Gov. Ritter’s judicial appointments have created a state Supreme Court that has demonstrated a willingness to expand liability for Colorado businesses.
As I told the group assembled by the Colorado Civil Justice League, legal reform is only as secure as the next Supreme Court ruling, so it’s critical to have judges who respect the will of elected representatives, rather than imposing their personal ideological preferences through their rulings. Progress on the legal reform front is never permanent – especially when a 30-year, bipartisan consensus in favor of a fair, stable and predictable legal climate appears to be breaking down. Colorado businesses and citizens will have to work to defend the gains that have been made, or see the state’s legal climate shift toward the agenda of the trial bar.
Vioxx Saga Continues
December 13, 2008
Last May, a Texas appellate court spiked a $32 million (later reduced to $7.75 million) award to the family of a man who had a fatal a heart attack while taking Vioxx pain medication. The WSJ Law Blog reports that the appellate court concluded there was insufficient evidence that the man, who had a pre-existing heart condition, suffered the heart attack as a result of taking the drug. But now the appellate court has reversed its May ruling, sending the case back to trial with “legally sufficient evidence to support a finding of specific causation” – tilting the legal playing field sharply in the direction of the plaintiffs’ lawyers trying the case.
The Definition of Chutzpah
December 11, 2008
Class action lawsuits have become notorious for generating huge payouts for trial lawyers (with plaintiffs often getting little or no benefit), so it’s hard for any level of fee-grubbing to shock these days. But a couple of class action predators up in Massachusetts may have set a new standard. (Hat tip to Walter Olson and his invaluable Overlawyered.com for getting the ball rolling on this one).
It seems class counsel in a case against TJX Companies that settled last summer went before a judge and asked for $6.5 million in legal fees. I know that’s hardly a shocking figure in today’s world of Powerball-sized fees – until you realize that, according to the judge who heard the lawyers’ demand, the actual class members in the case had only received $6.1 million, a figure “unlikely significantly to increase.”
I guess at least one profession is recession-proof.
No Conservatives Need Apply…
December 11, 2008
Earlier this year, attorney Lisa Brown, then executive director of the ultra-liberal American Constitution Society, called the Bush Administration’s practice of seeking out lawyers connected to the conservative Federalist Society to staff the Justice Department a “blight on the ‘integrity’” of the department.
That was then.
Ms. Brown was recently tapped to serve as White House staff secretary in the incoming Obama Administration, while American Constitution Society board member Eric Holder is slated to take over as Attorney General. Last year, in a speech to a group of eager young lawyers, Mr. Holder urged them to sign up with the Society because the Obama Administration is “going to be looking for people who share our values” – and a “substantial number of those people” will be ACS members.
Despite the tempting teaser from Mr. Holder, President-elect Obama’s point-person on the Justice Department transition, Dawn Johnsen, says “with confidence” that the new Justice Department won’t be staffed only with ideologically like-minded attorneys – like folks from the ACS. But considering that Ms. Johnsen herself is a also a ACS board member, my guess is promising young lawyers with “Federalist Society” on their resumes won’t be getting many plum jobs at the Obama Justice Department.
Ordinary Americans Who Pay The Price For Lawsuit Abuse
December 11, 2008
One of the biggest challenges for advocates of legal reform has been putting a face on the victims of lawsuit abuse. Trial lawyers, of course, always pose as advocates of the “little guy” and want us all to believe meritless lawsuits only affect nameless, faceless, deep-pocketed corporate defendants.
In recent years, think tanks like the Manhattan Institute – with its Trial Lawyers, Inc. series – and Pacific Research Institute – with Jackpot Justice and other studies – have done great work exposing the business structure of the trial bar and quantifying the damage meritless cases do to our economy.
Now the Institute for Legal Reform at the U.S. Chamber of Commerce has launched several new videos on its website, Faces Of Lawsuit Abuse. This important site gives us real life stories of ordinary Americans who are victims of lawsuit abuse. Like Mike Meissner, the youth baseball coach in North Carolina who was sued by the parents of a player after he got hit by a ball because the sun got in his eyes. Or 11-year-old Lauren Ellis, who spent four years battling a lawsuit filed against her by adult bike rider who hit her in front of her house.
There are many more and all make for compelling reading.
Will The Supreme Court Bring Sanity To Punitive Damages?
December 8, 2008
Will the U.S. Supreme Court finally set a constitutional limit on punitive damages? Chief Justice John Roberts cracked the door to this tantalizing possibility last week during oral arguments in the latest round of Philip Morris USA Inc. v. Williams.
The Philip Morris case offers an instructive example of why the Court may need to step in on constitutional grounds to end the punitive damages lottery. In 1999, a jury awarded $821,500 in actual damages and a whopping $79.5 million in punitive damages to a smoker’s widow. With a series of appeals, the case finally reached the U.S. Supreme Court in 2007. Rejecting the award (97 times actual damages, by the way) as excessive, the Court, in an opinion by Justice Breyer, sent the case back to the Oregon Supreme Court. The Oregon court, however, reaffirmed the award on state law grounds, forcing yet another appeal by Philip Morris.
During oral arguments, Chief Justice Roberts appeared as annoyed as polite judicial language permitted. He noted the concern that the Oregon court didn’t act “until the last minute to come up with” the state rule, which raised the issue of protecting the Supreme Court’s “constitutional authority in this case.” Even Justice Souter, part of the Court’s liberal wing, was worried about the fear that the Supreme Court’s decisions might not be followed – a signal he might be willing to join in a broader ruling.
In its earlier decision, the Court took a cautious line, not wanting to set hard and fast rules but instead relying on the judgment – and the good faith – of lower courts. In this case, that strategy of judicial “parenting” failed. This time, the Court seems to be saying, we really mean it, and we’re going to take away one of your toys.
The case for imposing punitive damage limits is strong. As Justice Breyer wrote in 2007, excessive punitive damage awards punish people “who are, essentially, strangers to the litigation.” This violates due process rights.
Businesses and litigants need, above all, clarity and fairness. In a hierarchical system, lower courts need clarity, too, and have a clear interest in resolving disputes quickly and fairly. Lawyers seeking fees, of course, may not want to see this kind of clarity and judicial dispatch, but that’s no way to administer the justice system. Let’s hope the Court takes this opportunity to ensure that its punitive damages rulings are actually followed in the states.