The Tortellini

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.

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...

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. ...

Isn't this a conflict?

While I was reading up on the U.S. Chamber of Commerce's latest lobbying plans, I noticed that their "Outlook 2007: State of American Business" event this Friday, featuring Commerce Secretary Carlos Gutierrez and chamber prez Tom Donohue, is co-sponsored by Congressional Quarterly.

Given the gobs of money that the chamber spends lobbying Congress ($60 million in 2004 and 2005 just on legal reform alone!), should the ever-so-balanced media outlet really be getting so chummy with these guys?? After all, it's hard to imagine CQ co-hosting an event with the trial lawyers...

More on those silicone breast implants

I've been surprised by the media coverage of the FDA's recent decision to allow silicone breast implants back on the market. Much of the coverage, or at least the opining that's followed, suggests that the FDA's approval means the implants are perfectly safe. This is a stretch, to say the least, given that women with the implants will need multiple and potentially disfiguring surgical procedures to keep them in longer than a couple of years.

The Center for Media and Democracy helps explain the news disparity this week by reporting that Burson-Marsteller has been working for Mentor, one of the implant makers, for about two years on the issue. BM is the same firm Dow Corning hired to help manage the fallout from its breast implant debacle.

Back in the mid-1990s, the authors of PR Watch, who now run the CMD web site, got a treasure trove of internal documents from Dow and BM, which they turned into a great article on the PR firm's role in Dow's silicone mess. Among other things, the PR strategy involved donating lots of money to breast cancer research groups and paying cancer survivors to testify before Congress on the need for reconstructive surgery options after mastectomy. (One cheeky woman took the money and then used the opportunity to complain about all the problems she'd had with her implants!) The strategy will look rather familiar to anyone who's followed the tobacco or pharmaceutical industry's tort reform efforts.

AOL-Time Warner's Good Fortune?

Fortune magazine has long history of documenting the collapse of high-flying big businesses and their top guns. Its writers broke big stories on Enron and gave narrative to a host of corporate accounting scandals. This month's cover story continues the tradition. In a piece chronicling the downfall of "the nation's meanest law firm," Fortune tells the saga of the Justice Department's long-running investigation of the shareholder litigation firm, Milberg Weiss. In May, the Justice Department indicted the firm for allegedly paying kickbacks to plaintiffs in class actions. The Fortune story homes in on former Milberg partner Bill Lerach (who has not been indicted), listing many companies Lerach and his firm have sued, from Apple Computer to United Airlines to 3Com (nine times!) to the Gap. One company missing from Fortune's list, though, is AOL-Time Warner, the magazine's parent company.

In February, from his new law firm, Lerach filed a billion-dollar suit against AOL-Time Warner on behalf of 70 institutional investors over alleged misrepresentations during the company's 2000 merger. The suit has been big news because the plaintiffs opted out of a $2.65 billion settlement with AOL-Time Warner in an earlier lawsuit (filed by Milberg Weiss), in search of a better deal. None of that, however, made it into the Fortune story.

Lerach has written a letter to the editor complaining about the treatment--as well as the timing. Fortune posted the story online one day after a settlement conference in the case. Lerach writes:

Despite the fact that the AOL-Time Warner suit has generated significant media attention and that the billion dollar demand and the timing of the settlement conference was known for weeks before the publication of the article, Fortune did not mention even once that it was an adverse party in this major lawsuit – a fact that would have shed light on the magazine’s agenda. It is clear that the article was meant to impact the case by undermining our resolve to recover the billions of dollars of losses your company caused our clients. Nice try. Let me assure you that the article has strengthened our resolve to hold your corporation accountable to justice.

Lerach, who declined to be interviewed for the story, has a legitimate gripe about the lack of disclosure, but I doubt that it was the result of collusion between Fortune's editors and AOL-Time Warner's corporate suits. Indeed, the author, Fortune editor-at-large Peter Elkind, told me he wasn't aware of the lawsuit. As for the timing of the piece, he says it was simply a coincidence. "It's absurd to suggest there was any connection. I don't talk to Richard Parsons," he says. "It's not a big deal to acknowledge a conflict. I would certainly have disclosed it if I had known about it."

Elkind may not have known about the current lawsuit, but he knew Lerach had sued his employer in the past. In 2000, Elkind wrote a profile of Lerach that disclosed that he and Milberg Weiss had sued both AOL and Time Warner when they were separate companies, and Elkind says he knew about the original Milberg Weiss suit over the merger, too, but says he thought it had settled "years ago." In fact, that suit only settled in April this year. Still, none of this adds up to a corporate defense strategy. Just sloppy reporting...

Desperate and litigious housewives

Last night's episode of "Desperate Housewives" provided a nice little moment of what political scientist Mike McCann might call a "pop tort."

On the show, Bree Van De Kamp, the uptight Christian conservative Republican housewife, is addressing Christmas cards with her gay son and insists on sending a card to her new mother-in-law, whom she's never met. Bree's new husband Orson has told her that his mother lives in a nursing home and suffers from dementia.
Orson protests that his mother doesn't need a card, but Bree tells him something to the effect that "it's important to let the staff of the nursing home know that your mother has people who love her--who also might drop in at any moment and slap them with a lawsuit."

Apparently Wysteria Lane is not in Texas, where Republicans have all but eliminated nursing home litigation...

Bummer about the BP trial

I wish Eva Rowe had stuck to her guns and gone to trial in her lawsuit against the petroleum giant BP.  Rowe, 22, had sued BP after its 2005 refinery explosion in Texas City, Texas killed not just one but both of her parents. Rowe's was the last of 15 wrongful death suits against the company stemming from the explosion, and she had refused to settle, saying she wanted the public to see all of BP's dirty laundry. The trial was scheduled to begin next week.

Instead, Rowe settled yesterday when BP agreed to donate as much as $60 million to an array of charities and safety research programs. Seems like a good settlement, so it's hard to really complain, but I was looking forward to watching the trial. The United Steel Workers union had arranged to broadcast it live through a special website that would have also posted key trial documents and other evidence. The case would have provided a rare opportunity for the public to watch a major civil trial in action rather than hear only the dollar amount of the verdict at the end. 

It would be interesting to know if the TV cameras had anything to do with BP's decision to settle the case on terms Rowe could live with...

Patently Predictable

At the end of September, the New York Times ran a big story ($) on Marshall, Texas, which it tagged as a hotbed of patent litigation. The story had all the elements of earlier media coverage of "judicial hellholes," where allegedly plaintiff-friendly juries and judges in small, out of the way places slam innocent corporations with multi-million dollar verdicts. Naturally, the stories always purport to show why more restrictions on lawsuits are needed.

Stories like these usually herald the beginning of a major new legal reform lobbying effort by corporate defendants. So I wasn't too surprised to learn that a group of big corporations recently launched the Coalition for Patent Fairness to attack "abusive patent litigation." According to Intellectual Property Watch, the coalition recently hired a slew of high-powered tort reform lobbyists to push federal legislation that would cap damages and force losing parties to pay the other side's legal bills in patent lawsuits, among other things. The Times story, along with a spate of others on Marshall, Texas, was their handiwork.

As a journalist, I'm a bit torn about this kind of media manipulation. On one hand, the Marshall, Texas story is clearly being sold by people with an agenda, and as a result, some of the facts are vastly out of context. For instance, the paper reports on the size of a jury verdict without explaining in detail the damages at issue. On the other hand, there is legitimate news there. What's a reporter to do?

I think full disclosure is probably in order. Reporters should identify the source of their tips so readers understand all the agendas at work. People will appreciate the transparency, and hopefully, the elected officials at whom the stories are targeted will also judge them accordingly.

Record profits

A few days ago, I noted that the U.S. Chamber of Commerce's legal newspapers in Madison County and West Virginia were unexpectedly making money--how much, though, I couldn't say, as the chamber flack never returned my call. Happily, I've found a partial answer to my question, in the chamber's tax returns.

Public Citizen, the nonprofit consumer group, filed a complaint with the IRS that the chamber and its Institute for Legal Reform failed to report four years' worth of taxable spending on political races nationwide, to the tune of tens of millions of dollars, and the returns were part of the complaint.

Buried in the ILR's 2004 return, along with the details of its $40 million budget, is the news that the Madison Record earned $3,966 its first year, with $3,899 in the bank heading into 2005. Not bad for a paper created solely as a lobbying vehicle.

Where the Money Goes

The chamber's tax returns offered up other salacious details, like the salaries of its top execs. In 2004, chamber prez Tom Donohue raked in $1.8 million. ILR president Lisa Rickard made $535,000.

The tax returns suggest that the chamber's female execs could use the services of a good trial lawyer. Suzanne Clark, the chamber's executive vice president and COO made $531,000 in 2004, while the guy below her, VP Robert Josten, made $738,000. (ILR chief Rickard must have lobbied hard for a raise, as her salary in 2003 was only a little over $300K.)

But back to that $40 million figure. Chamber heads often claim that big business is the helpless victim of the all-powerful trial bar, but the tax returns make clear the chamber is the big dog in this fight. The ILR's tort reform budget comes on top of the $70 million annual budget for the chamber itself. Just for the sake of comparison, the Association of Trial Lawyers of America spent about $7 million on lobbying in 2005, according to the Center for Responsive Politics. The chamber's Institute for Legal Reform spent $20 million.

Please don't write in complaining that ATLA's budget doesn't include all those tobacco lawyers' campaign contributions. The chamber's lobbying figure doesn't include all those insurance and oil company execs' donations either, so this is pretty much apples to apples.

If Tribune reporters think they have ownership problems...

These are grim times in the news business. A new study from the Audit Bureau of Circulation shows that just about every major metro paper in the country is getting killed, and the papers are shedding staff almost as fast as they're losing readers. An odd counter-blip in those trend lines, though, comes from an unusual source: The U.S. Chamber of Commerce.

In 2004, the nation's biggest business lobby started legal newspapers in Madison County, Illinois, and West Virginia as propaganda vehicles to support the chamber's $40 million campaign for limits on class action lawsuits. The chamber's ownership was largely secret until the Washington Post helped blow the whistle. You'd think the outing might have spelled doom for the papers. Instead, as chamber president Tom Donohue said Thursday at the group's 7th annual Legal Reform Summit, "The damn things are making money!" The papers are doing so well, according to Donohue, the chamber is planning to launch another one in Texas.

I tried to ask the chamber just how well the papers were doing, but their press guy has so far not returned my call, nor has the ad rep at the flagship Madison paper. So I'm forced to rely on the web for additional details. With a staff of about five, according to the website, the Madison Record prints 10,000 copies a week and claims 25,000 unique visitors a month to its website. The paper's court reporter, though, shouldn't get too comfortable in his Edwardsville office.

With help from the papers, the chamber won federal limits on class actions in 2005. So while Madison County may have once been a hotbed of litigation, the number of class actions filed there has plummeted from a high of 103 in 2003, to just one so far this year, according to the Manhattan Institute.  If the chamber's tort reform success continues, its newspapers will eventually go the way of the L.A. Times (whose circulation fell a depressing 8 percent in the last six months), if only because they won't have any news left to cover.

Arbitration Clauses for Journalists?

Thanks to Public Citizen's Law and Policy Blog for bringing this L.A. Times article to my attention. In a beautiful piece of irony, the writer exposes many of the problems with arbitration clauses by publishing the one in the Times' contract she had to sign in order to publish the article on arbitration clause abuses.

In the article, the author claims she had no choice but to sign the contract. Question for all you lawyers out there: Is that true? Isn't there some way to get around this?