The Tortellini

Judge lectures employers on the value of jury duty

Yesterday, the ongoing bribery trial of Mississippi attorney Paul Minor offered an interesting window into the attitude of corporate America about the value of serving on a jury. Two of the jurors who have been selected for the trial told a federal judge that they fear losing their jobs if they stay on the case, which is expected to last at least another month.

Rather than let them off, U.S. District Judge Henry Wingate subpoenaed their managers! Wingate then lectured the managers from the bench about the law on jury service after confirming from one of the managers of a Northpark mall store that company policy says anyone off the job for more than 10 days, even for jury duty, would have to reapply for his or her job. After that kind of tongue lashing, I don't think the jurors are going to have to worry about their future employment, at least not because of their jury service. Kudos to Wingate for going up the chain of command!

Minor Trial Underway in Mississippi

This week, the second criminal trial of Mississippi attorney Paul Minor gets under way. For the most of you who don't follow Mississippi politics, Minor is a successful plaintiff's attorney who was known as "the judge maker" in Mississippi democratic circles because of his key role in raising money for progressive judicial candidates. (You can read more about him in my book.) He was also a big donor to a political action committee founded by state trial lawyers to counter the influence of big business in other local elections. (Another one of its founding donors was the former trial lawyer, state legislator and author John Grisham.)

The U.S. Attorney in Mississippi accused Minor of bribing several state court judges to secure favorable rulings in his cases. The ensuing FBI investigation and 2003 indictment of Minor and several judges came at the same time the U.S. Chamber of Commerce was funneling hundreds of thousands of dollars into judicial elections in the state. The indictment all but ensured that trial lawyers stopped giving money to the Democratic party and to its candidates in the state, giving the GOP and the business groups a huge spending advantage. (There is no other source of money for progressive candidates in Mississippi besides trial lawyers.)

The part of the story that doesn't usually make the news is that the famous lawyer Richard "Dickie" Scruggs (portrayed in the movie "The Insider"), also did some of the same things that Minor is accused of but he wasn't prosecuted, something conspiracy theorists attribute to the fact that he's Trent Lott's brother-in-law.

Minor was acquitted of some of the charges in 2005 but the jury deadlocked on the rest. In the first go-around, the U.S. Attorney had a pretty weak case. (Why the U.S. Attorney got involved at all is something of a mystery, given that the crimes involved are state misdemeanor campaign finance violations.) In one instance, the office charged Minor with bribing a judge who wasn't even on the bench when Minor paid off one of his campaign loans and another who had actually recused himself from all of Minor's cases. Given Minor's skills as an attorney, too, he didn't need to bribe judges to get favorable rulings. And his firm had already won $70 million in tobacco litigation fees, so it's not like he needed any financial help.

Anyway, the U.S. Attorney will get a chance to correct his mistakes this time, but so, too, will Minor's defense team. It will be interesting to see what happens. If Minor is convicted, Mississippi will essentially be criminalizing campaign contributions, which will leave it in a rather odd situation down the road...

No Amount of Trial Lawyer PR Will Help With This One

Since my book came out, people who oppose tort reform or interviewers occasionally ask me why I think that the movement to restrict people's right to sue has been so successful. One reason I always give them is that trial lawyers, despite all their recent name changes and focus groups, still continue to provide the "reformers" with a lot of solid material. Check out the latest in the Wall Street Journal today ($) here or the WSJ law blog item here...

Here's real legalized extortion..

So the nation's third-largest natural gas company defrauds more than 8,000 West Virginia landowners, including a 90-year-old retired school teacher, out of more than $100 million in royalty payments on gas extracted from the land it leases from them. The landowners sue the company, and in January, win a $134 million verdict. The outraged jury, which learned that the company used Enron-like shell corporations to hide the deception and spent the money on huge golden parachute payments to top executives, then tacks on another $271 million in punitive damages (a completely defensible and constitutional 1:2 ratio of punitive to actual damages, I might add).

So what does the company do? Threaten to leave the state, or at least not to finish building its half-constructed new West Virgina headquarters until the verdict is either overturned, or the governor and the legislature pass new laws immunizing gas companies from lawsuits that occur when they rip off landowners. Naturally, the governor and many state legislators think this is a good idea and are on the case already...

Revolving door for judges?

I guess I'm naive, but it never occurred to me that one factor judges might weigh when making a decision from the bench is their own future employment prospects. But thanks to Paul Bland at the CL&P Blog for an interesting post about the possibility that judges are allowing expanded use of mandatory arbitration because they can leave the bench to make a lot more money as private arbitrators. While it's never all that surprising to hear that some of the luminaries in the Bush administration are, oh, buying condos with lobbyists from companies with business before their agencies, or that many of the regulatory agencies are stocked with people from the companies that they regulate, I guess I still had this misguided sense that judges were above that sort of thing. Hopefully, most really are, but Paul's post does leave you wondering...

Tobacco liability climate: best in years?

Sorry for the long absence, but I've been traveling, and am probably the only blogger in Washington without a Blackberry..(I also don't have cable TV, but that's another story...)

By now the U.S. Supreme Court decision on punitive damages in the recent Philip Morris case has been well chewed over, and I'm sure I don't have much to add on the subject except that it's unfortunate that Justice Stephen Breyer, with his cute little book on the Constitution, Active Liberty, doesn't feel the need to give more deference to juries. 

One thing that did jump out at me from the New York Times coverage of the decision was the aside that Altria stock has soared to record highs in the past few months because investors believe that the liability climate for tobacco companies has improved significantly. It seems that the money the tobacco companies have invested in tort reform, judicial elections and other lobbying has truly paid off.

Why don't the doctors get mad?

Another state reporting that surprise, tort reform didn't have any impact on doctor's medical malpractice insurance premiums. After passing a $350,000 cap on noneconomic damages and other restrictions on med mal lawsuits, Georgia is now about to undertake more legislation--this time, at least, targeted at the actual problem, the insurance companies--to bring some relief to the docs, after discovering that six of the the state's top med mal insurers had jacked up premiums even further after the law passed in 2003, some by as much as a third.

Every time I read one of these stories, I wonder why the doctors lobby doesn't march on the state capitals about insurance reform, rather than targeting injured patients who occasionally sue. Probably I can answer my own question. Aside from the fact that a lot of the med mal insurers are owned by doctors, I suspect that even if the doctors didn't have to pay for any med mal insurance at all, they'd still hate lawyers and the injured patients they represent. Tort reform for them isn't just about money. Still, the doctors do look kinda dumb for lobbying for all this tort reform and then having only the insurance companies benefit from it--just as they have at least two or three times in the past. Why don't they ever learn?

The Market Rate of Jury Duty

Interesting article today about the mysterious "shadow jury" following the Vioxx trial in New Jersey, for which neither side is claiming any knowledge. One thing that struck me: it cost $125 a day to hire a "juror" to do what average citizens are doing for free, or almost free. I think here in D.C. you get two bucks to show up for jury duty (to cover the cost of a Metro fare, I guess), and $40 a day if you actually serve.

Though not with the same sort of vigor that they pursue say, changes to the collateral source rules, tort reform groups have encouraged states to pay jurors more for their service, in the hopes of getting more people to show up for jury duty, a major problem in the state courts. Jury summons response rates in DC have been so low (29 percent) that at one point the chief judge of the Superior Court threatened to start sending federal marshals out after the no-shows!

But the cost of the shadow jury in New Jersey suggests that the market rate for such services would be vastly more than any state court could afford to pay. Turning out jurors, I'm afraid, is going to require something other than money. Civics lessons, maybe? If nothing else, tamping down the nasty attacks on juries that have been so prevalent during the battles over tort reform the past few years might help. I'm mean, really, who wants to serve on a jury when the thanks for your service is likely to be a firestorm of criticism over any decision you make by people who weren't even in the courtroom?

John Edwards Watch

So now that John Edwards is no longer the favored presidential candidate of trial lawyers, I'm wondering if he will be even bolder this go-around in dissing his former professional colleagues to prove his "independence." In 2004, he feigned some interest in tort reform, writing a lame op-ed in the Washington Post offering a meaningless proposal for cracking down on frivolous lawsuits. And, of course, during the second presidential debate in 2004, his running mate declared that "John Edwards and I support tort reform." But now that Edwards isn't quite so reliant on trial lawyer money for his campaign, he doesn't have to be as careful about pissing them off, either. As he tries to shed the moniker "former trial lawyer," I wouldn't be surprised to see Edwards embrace some of the more draconian tort reform proposals out there to show he's not beholden to the plaintiffs' bar, kinda the way Clinton did in executing that retarded man in Arkansas or passing welfare reform legislation to prove he wasn't a bleeding heart. We'll see...

Anderson Cooper on the Insurance Industry

I don't have cable, so missed this interesting segment Wednesday from the CNN show Anderson Cooper 360. It details the ways State Farm and Allstate, on advice from the consulting firm McKinsey & Company (the same outfit that produced the study for New York Mayor Michael Bloomberg calling for more restrictions on shareholder's suits) are using scorched-earth litigation tactics against people who were injured in relatively minor auto accidents to avoid paying relatively small claims. The transcript isn't online but you can read a shorter version on Anderson's blog here...

Tort reformers salute the Union Jack

Yesterday, after suffering through a few of Philip Howard's op-eds on the legal system, I was struck once again by a theme that reappears occasionally in the tort reform literature: a near-fawning desire to emulate the British. I've never quite understood this, but many of the tort reform movement's leading lights have, in my humble opinion, an unhealthy obsession with Mother England--and not in a "Lady Di" fan-club kind of way.

I have nothing against the British; their food is lousy, but they did produce Billy Bragg. But people like Howard frequently suggest that Americans would all be better off if our legal system were more like England's, especially if we replaced our messy, raucous, occasionally unpredictable but enormously democratic civil juries with guys in powdered wigs. The Manhattan Institute's Walter Olson, when he's not contra dancing and playing the accordion, pines away in print for British rules like loser pays, to force losing parties in a lawsuit to pay the other side's legal costs, bans (now eroding) on contingency fees, and other hurdles that would keep the riff-raff out of the hallowed chambers of the courthouse.

My knowledge of this country's origins is spotty--due in part to an Ogden High School basketball coach masquerading as an American history teacher--but I do recall that Americans shed a lot of blood to get away from the British system and its imperial judges, and that the American Constitution was nearly scuppered because it didn't originally allow for a civil jury trial. The jury, with all its flaws, is still the "heart and lungs" of the American legal system. We should leave the wigs to the Queen's subjects across the Atlantic.

Philip Howard, aristocrat of the op-ed pages

Bill Childs at TortsProfs Blog today picks apart a New York Sun column by Common Good's Philip Howard. Bill puzzles over the strange construction of the article, which starts out talking about securities litigation and then veers off into issues of "trust" in the legal system and other mushy stuff about tort reform. Clearly, Bill hasn't been a regular reader of Howard's op-eds. The second half of the New York Sun piece is pretty much boilerplate from every other article he's ever written on the legal system. A sampling:

"Restoring trust in American justice can't be accomplished by tweaking this system. A functioning system of justice must aspire to deliberate choices, binding from one case to the next. Reliability is critical."--Philip Howard in the Wall Street Journal, Jan. 6. 2007

"Tort reforms limiting damages don't get close to the heart of the problem. American justice has a deeper flaw — it no longer reliably distinguishes right from wrong. Instead, decisions are made on an ad hoc basis, jury by jury, without predictable boundaries."--Philip Howard, New York Sun, Feb. 5, 2007.

I could do a similar match of up Howard's articles on health courts, non-risky playgrounds and school reform, but I can't bear the thought of having to go back to read them all. If you're really interested, they're all available on the Common Good website.

ATRA branches out into criminal law

Sherman "Tiger" Joyce, the president of the American Tort Reform Association, has put his considerable fundraising and organizing skills to use starting a new group, the Association for Truth and Fairness, which is raising money for a legal defense fund for the former Duke lacrosse players accused of raping and kidnapping an exotic dancer. So far the group has raised $750,000, according to this news account. Joyce is apparently a family friend of one of the accused players. ...

Another Reporter Falls for the Manhattan Institute

It's always nice to see the folks over at the Manhattan Institute's Overlawyered.com touting their success at spoon-feeding some of their propaganda to willing reporters, so you know what they've been up to. It's not so nice when it turns out that the spoon-fed reporter is someone you know and like.

I cringed when I noticed an Overlawyered mash note to Mike Crowley, an editor at the New Republic and columnist at Reader's Digest, which for some reason has long been a very reliable and one-sided mouthpiece for tort reform groups.

I know Mike from my early days at the Washington Monthly, where he was once an intern. So I was pretty surprised to see the approving Overlawyered cites to several of Mike's Reader's Digest columns, especially this one, which reads like boilerplate tort reform rhetoric that could have come right off Overlawyered (and apparently, according to MI's Walter Olson, lots of the column did). A sampling:

Our society has become so sue-happy that the average federal district judge fields 400 new cases a year. With dockets so clogged with junk, it can take years for any legitimate case to wind its way through the courts. Justice delayed is justice denied.

All of these loony lawsuits hit our wallets too. Insurance premiums skyrocket as everyone scrambles to cover his behind, court costs rise, and astronomical settlements depress corporate earnings and shareholder value. According to a White House Council of Economic Advisors estimate, the United States suffers an excessive "litigation tax" of $136 billion per year. Meanwhile, the personal-injury lawyers -- whose smiling faces are plastered everywhere on ads encouraging us to join the lawsuit parade -- are laughing all the way to the bank.

For those unfamiliar with the Manhattan Institute, the think tank's center for legal policy is funded by insurance and tobacco companies (AIG's former head Hank Greenberg has been a stalwart donor). It's primary mission is to mold reporters into a "pro-tort reform" position, providing an "intellectual" foundation for the corporate tort reform movement's self-serving legislative goals.

I write more about this in my book, but an early fundraising letter sent out by Manhattan Institute president William Hammett actually named many of the reporters it was targeting, and they tended to be folks at magazines like TNR (though back then it was Michael Kinsley and Fred Barnes they were after). Hammett explained the group's research mission to potential donors, saying, "Journalists need copy, and it's an established fact that over time they'll 'bend' in the direction in which it flows." 

As a result, the MI makes it really, really easy for reporters to write stories bashing the legal system, trial lawyers and juries, without having to make too many phone calls.  Unfortunately, like the Reader's Digest pieces, those stories not only serve a bigger corporate agenda, but they give the public a pretty miserably skewed view of what really happens in the legal system. Oh, Mike...

For the Ted Frank fan club

For all of you who've enjoyed the vociferous comments here from AEI's Ted Frank, here's your chance to see him in person. Ted will be appearing next week in D.C. on a Federalist Society panel discussing the Class Action Fairness Act. He'll appear with other tort reform luminaries such as John Beisner, the O'Melveny & Myers attorney who reportedly wrote CAFA, and a couple of people on the other side, including John Stoia Jr. from Lerach Coughlin.

I wish I could be there myself, but I will be on an airplane. But these Federalist Society things are open to anyone willing to pay the $20 for lunch, so if you're in the neighborhood, you really ought to stop by--and let me know how it goes! I may entertain a guest post.

The final price tag for Alabama's judicial election

Alabama started the trend of expensive and nasty judicial elections back in 1994, when Karl Rove applied his considerable political skills to swing the court from Democrat to Republican. The model was so successful that Republicans and business groups exported the model to other states, setting off something of an arms race in state supreme court elections. In 2004, the nation's most expensive race came in Illinois, ringing in at $9 million for a contested seat on the state high court. But apparently, Alabamans are holding fast to the championship title in judicial campaign spending. The Birmingham News reports that the five races for state supreme court last year cost more than $12 million, the most costly in the nation. Naturally, the bulk of the money came from insurance companies, banks, health care companies and myriad tort reform groups.

Lawsuits and the clergy scandals

I've long argued with some of my colleagues in the media that tort reform is bad for journalism. Yesterday, the Boston Globe ran a longish piece from an Albany Law School prof making just this point. It details all the ways in which lawsuits actually provided the basis for the Globe's own Pulitzer-prize winning series on the child sexual abuse and cover-up in the Catholic Church. ...

Tort reform groups evade campaign finance laws

The American Tort Reform Association and the American Justice Partnership, a wing of the National Association of Manufacturers, pumped more than $700,000 into Illinois judicial elections last year. But oops! The erstwhile nonprofit groups forgot to disclose where they got the cash, according to a new story in the St. Louis Post-Dispatch. Apparently the groups were still operating under the old rules, which allowed big corporations to hide their donations to judges by giving money to nonprofit groups, which then made the donations.

But Illinois lawmakers changed the rules after the slugfest in 2004 between Gordon Maag and Lloyd Kaminer for a seat on the state supreme court. That race was the mostly costly in the nation, eating up $9 million. Now, nonprofits that make campaign donations have to also disclose their funding sources. According to the Post-Dispatch, the Justice Partnership intends to maybe disclose its funders, but ATRA, whose main spokespeople, Victor Schwartz and Sherman "Tiger" Joyce, are nearly always on hand for a snarky comment about lawsuits and lawyers, apparently couldn't be found to answer the reporter's questions. I hope the Post-Dispatch follows this story to see whether the groups ever do the paperwork. ATRA has long tried to downplay the fact that a big chunk of its money comes from tobacco companies. Their financial disclosure forms ought to be mighty interesting!

The ABA on ATLA's name change

Trial lawyers are again in the news this week. The ABA Journal features a long story this month on the back story behind the Association of Trial Lawyers of America's name change (now the American Association for Justice, not to be confused with the American Justice Partnership or the Institute for Justice or....) One question the article doesn't answer: How much did the lawyers pay to buy the URL justice.org? I bet that one was a small fortune.