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Missouri considers banned deceptive ads

August 25, 2009

Earlier this month, I applauded a federal judge’s ruling to uphold Louisiana’s rules prohibiting deceptive lawyer ads.  Similar rules are under consideration in Missouri according to Travis Akin of Illinois Lawsuit Abuse Watch in an op-ed published earlier this week.

He writes:

The Board of Governors of the Missouri Bar will soon be considering new rules to tighten up regulations on personal injury lawyer advertising, a move many law firms are fighting.

The rules include bolstering the visibility of a required disclaimer and banning the use of celebrities in lawyer ads.

Akin laments Illinois’s unwillingness to take similar action:

While the Show Me State is actively refining its rules, Illinois has done very little to regulate personal injury lawyer advertising.

Illinois television viewers are treated to a barrage of ads that go far beyond informing people of their rights. Many of these ads almost dare viewers to file a lawsuit even if they have not been injured.

I stand with Akin in hoping that Illinois can follow in Missouri and Louisiana’s footsteps in curbing deceptive advertising.

Posted by Dan Pero | Filed Under Illinois, Louisiana, Missouri, Trial Lawyers | Leave a 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 

Trial Lawyer Lobby Scores Several Big Victories — But Signs Of Hope In A Tough Election Year

November 5, 2008

Democratic state Supreme Court candidates – backed by the money and influence of the powerful trial lawyer lobby – scored several victories last night that could result in the rollback of important legal reform legislation and lead to a more lawsuit-friendly, anti-business environment.  The trial bar also strengthened its grip on the judicial selection process in Kansas and Missouri.  Yet rule-of-law judicial candidate also won races in many key states, providing signs of hope in an otherwise tough election cycle.

A 2008 election roundup:

Michigan:  A “scathing” ad campaign financed by the Michigan Democratic Party along with Senator Obama’s landslide in the state helped Diane Hathaway upset Supreme Court Chief Justice Clifford Taylor.  Ms. Hathaway’s victory will weaken the current rule-of-law majority on the court and worsen the business climate in Michigan’s already devastated economy.

Mississippi:  Rule-of-law candidates captured three of the four Mississippi Supreme Court seats up for grabs.  Although Chief Justice Jim Smith was upset by challenger Jim Kitchens, business-backed challengers Bubba Pierce and David Chandler defeated incumbents Oliver Dias, Jr. and Chuck Easley.  Meanwhile, rule-of-law Justice Ann Hannaford Lamar beat back her challenger to retain her seat on Mississippi’s high court.  The result should be a fairer, more predictable legal environment, which Gov. Haley Barbour believes is critical to attracting investment and jobs to Mississippi.

Louisiana:  Greg Guidry won a pivotal seat on the state Supreme Court – a victory that is expected to help a rule-of-law majority take control of the high court.

Alabama:  Republican Greg Shaw squeaked to victory over Democrat Deborah Bell Paseur in the race to fill the seat of retiring Republican Harold See.  The Alabama Supreme Court will retain an 8-1 Republican majority.

“Merit” Selection:  Residents of Johnson County, KS voted down a ballot initiative that would have restored the right to vote for county judges and ended the current “merit” selection process.  In Greene County, MO, voters narrowly (by about 4,000 votes) approved an initiative to adopt “merit” selection, which has been used by all three Courts of Appeal and the Supreme Court in Missouri since 1945.

Wisconsin:  Back in April, Wisconsin voters ousted Supreme Court Justice Louis Butler – who was appointed by a Democratic governor only after decisively losing his own bid for election and who promptly shifted the high court sharply toward the trial lawyer agenda.

All in all, the 2008 elections provide strong evidence that American voters support judicial candidates that will exercise judicial restraint by interpreting the law, rather than legislating from the bench.  But as we saw in Michigan, the trial bar and supporters of an activist judiciary are both financially and philosophically committed to fighting this battle out state by state, race by race.  The trial bar and its allies are not afraid to wage tough, nasty, expensive campaigns to shift the courts in their ideological direction.  If the legal reform community wants to hold onto the gains we’ve made and even extend them, we must have that same level of commitment.

Posted by Dan Pero | Filed Under Alabama, Judicial Elections, Kansas, Louisiana, Michigan, Mississippi, State Battlegrounds, Trial Lawyers, Wisconsin | 1 Comment 

Oops…Will “Merit” Selection Supporters Apologize For Smearing Louisiana Judges?

September 25, 2008

Proponents of ending state judicial elections and switching to “merit” selection argue that such a drastic curtailment of democracy is necessary because campaign contributions allow donors to “buy” favorable verdicts.  They’ve never had any actual proof – just manufactured public opinion polls that suggest a public “perception” that campaign money unduly influences judges.  So when a Tulane University law professor and a Loyola University economics professor published an article in Tulane’s law review earlier this year that smeared several Louisiana Supreme Court justices by claiming that contributions swayed their votes, the anti-election crowd pounced.

The New York Times ran a huge article pronouncing the results of the professors’ study “not pretty” and sneered that at least on Louisiana’s court campaign cash trumped judicial philosophy when it came to making decisions.  Judges on Merit hailed the study in a blog post entitled, “Louisiana Study Confirms that Money Can Buy Verdicts,” and wrote that the study shows that in Louisiana “campaign contributions to judges are a good way to get an advantage in the courtroom.”  Gavel Grab (Justice at Stake’s blog) also reported on the study.

There’s only one problem.  The Tulane study turned out to be bogus.  It was so deeply flawed that Tulane Law School Dean Lawrence Ponoroff was forced to send a letter to every Justice on Louisiana’s Supreme Court apologizing for the “faulty data” used to reach “conclusions [that have] been called into question.”

Among the flaws turned up by independent reviewers:

  • “the study relied on just 186 decisions out of the thousands reviewed in 16 years of data” by the study’s authors.
  • “in 37 of the 186 opinions included in the study, the information about the case on which [the authors] based their conclusions is just plain wrong, such as how a justice voted or even if the justice was on the panel that decided the case.”
  • Independent reviews “also presented a litany of other study criticisms, including the lack of factual or legal analysis of any single case and a lack of evidence that any case was decided incorrectly.”

Justice John Weimer was gracious enough to accept the dean’s apology, but not before pointing out that:

What is so disappointing about this is the damage that has been done to the state of Louisiana unjustifiably.  This irresponsible article becomes a tool for those who benefit from such unwarranted attacks on our state’s reputation.

And what about the partisans that were all too anxious to exploit this “tool?”  The New York Times published a short, grudging “editor’s note” containing a non-apology apology to the Louisiana justices unfairly smeared by the faulty study.  And Judges on Merit and Gavel Grab?  Well, we haven’t heard from them yet.

Posted by Dan Pero | Filed Under Judicial Elections, Justice at Stake, Louisiana | Leave a Comment 

Louisiana Goes On The Radar Screen

September 23, 2008

The Shreveport Times (LA), according to a recent editorial, has “soured on” judicial elections and is calling for adopting some variation of “merit” selection – where a small committee dominated by lawyers meets in secret to pick judges.  A blogger at the Central La. Politics blog helpfully points out such a move would require amending Louisiana’s Constitution, meaning

“…the voters of this state would have to voluntarily relinquish their right to vote for judges.”

That’s a pretty big step to take just to wash the sour taste out of the mouths of the Shreveport Times’ editors.  But instead of justifying such a momentous act, the editorial just rolls out the usual boilerplate in a series of deeply flawed arguments.

The paper starts off by complaining that judges in judicial elections consistently run unopposed, so that for judges “once elected, always elected.”  But since “merit” selection was adopted in Tennessee, 146 judges have stood for retention election and 145 have been returned to office (see study here).  While I’d prefer to see more competitive judicial races, at least elections preserve the possibility that voters can replace a bad judge. The “merit”/retention system virtually eliminates that opportunity.

The Shreveport Times also worries that “the public’s ability to oversee bench competency is limited.”  Arguing that voters ought to give up their right to vote because they are too stupid to use it responsibly never struck me as a winning argument, but at least the editors are honest.  As I’ve said before, if voters can be trusted to elect legislators who write laws and governors who enforce laws, there is no good reason they shouldn’t be trusted to elect judges who interpret laws.

The editorial goes on to argue that contributions to judicial candidates by lawyers might give the legal community undue influence in the courtroom.  But the “merit” system the paper supports would trade that chance for the guarantee that lawyers and legal special interests would unduly influence Louisiana’s courts.  The paper even suggests putting the “local bar association” in charge of “look[ing] only at lawyers with established minimum years of experience and assess[ing] their competency with expert eyes.”  But in a democracy, it’s not up to “experts” to decide who will govern us, it’s up to the people.

The issue of campaign cash playing too big a role in judicial elections is real – but it’s an issue that applies to legislative and gubernatorial races as well.  Besides, as Louisiana attorney John Maginnis points out in a piece on Bayou Buzz,

The real effect of campaign contributions is to help elect candidates who share views with contributors rather than to cause a justice, once elected to a ten-year term, to reshape his or her judicial philosophy on a case-by-case basis in order to follow the money.

As far as the “merit” system reducing “the influence of politics” in judicial selection, take a look at my post yesterday where a Minnesota judge details the insider games that take place behind closed doors with judicial nominating commissions.  Or this post, where a Tennessee judge talks about the politicized process for picking judges under that state’s “merit” system.

“Merit” selection hasn’t won much support in Louisiana – but we’re still keeping the state on our radar screen.

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