Justinian Lane - Commentary on law, politics, and tort "reform."

Are there any scholarly Plaintiffs’ blogs?

I was just reading another article at a defense lawyer blog that got my blood boiling.  The primary reason my blood is boiling is because I don’t know of any scholarly plaintiffs’ blogs.  Are there any plaintiffs’ lawyers out there who write about substantive legal issues in a serious way?  You know, articles written for a scholarly audience and not just to chase clients. If you know of any, please – please – tell me.

Iqbal and Bernie Madoff – A “What If” Scenario

In 1957, the U.S. Supreme Court decided Conley v. Gibson, a case which explained how much detail a plaintiff had to plead in his or her complaint in order to survive a motion to dismiss by the defendant.  Conley held that a court should only grant a certain type of a motion to dismiss if there were no set of facts that the plaintiff could prove which would entitle him or her to relief.

As you would imagine, this was a pretty low hurdle.  And it was the law up until either 2007, or 2009, depending upon your views.  In 2007, the Supreme Court decided Bell Atlantic v. Twombley, and in 2009 it decided Ashcroft v. Iqbal.  Those cases raised the standard to one of plausibility; a plaintiff now has to plead enough facts to state a claim that is “plausible on its face.” 

The problem here is twofold.  First, what is plausible to one judge may not be plausible to another.  The Court therefore replaced an objective rule with a subjective rule that leads us further from John Adams’ vision of a nation of laws, not of men.  Second, much of the information needed to author a complaint that is plausible on its face may not be available until discovery has commenced.  Because a motion to dismiss can be granted before discovery occurs, this may throw out lawsuits that would otherwise be good.  Especially lawsuits in which the defendant hides or conceals information.

Which brings me to the title of this post.

Assuming that Madoff’s empire was still afloat today, one has to wonder if under the new pleading standard, a lawsuit against Bernie Madoff would be dismissed for being implausible.  Many judges would find it implausible that one of the most respected men on Wall Street built a multi-billion dollar Ponzi scheme over the course of several decades without ever being caught by the Feds. 

Maybe it would.  I haven’t given this much thought; it came to me in the car on the way to class and writing this blog post is far more interesting than discussing the Lemon test.

For a much more detailed discussion of pleading standards and what they mean in financial cases, check out The Iqbal Case and Damages Actions under the Federal Securities Laws. 

This is why trial lawyers constantly get their asses kicked in the court of public opinion

Today, the U.S. Chamber of Commerce released a report complaining about lawsuit abuse, and the American Association for Justice released a report complaining about corporate misconduct.  Look at the links below and see if you can figure out why trial lawyers aren’t “winning hearts and minds.”

Click here (PDF) for the Chamber's report, "Selling Lawsuits, Buying Trouble," by Skadden partners John Beisner and Jessica Miller and counsel Gary Rubin. Click here (PDF) for the report from the American Association for Justice, titled "They Knew and Failed To."

Source: Law.com - Dueling Reports: More or Less Litigation?

The Chamber put together a slick, professional report that oozes class.  The AAJ put together a coloring book.  I don’t mean to be harsh, but look at the difference in quality between the two products. 

The Chamber put theirs together in Quark Xpress 6.5.  They’re a couple versions behind, but Quark Xpress is top-notch desktop publishing software. 

The AAJ put theirs together in Microsoft Word, probably Word 2003.  Word is undoubtedly the best word processor out there, but it’s crap for desktop publishing.  You simply can’t make a document in Word look as good as one done in Quark. 

How do I know what software they used?  It’s in the metadata.  I laughed when I saw that the Chamber cleared their metadata such as the name of the author; they probably learned the importance of doing that after their members produced documents with damning metadata in them.  The AAJ, on the other hand, did not clear their metadata.  The metadata they left behind tells me that this document is little more than a repackaging of a previous AAJ article, “Cases that Made a Difference.”

My biggest complaint with the AAJ piece isn’t the coloring-book cover, or the mediocre publishing format.  It’s the title.  “They knew and failed to…”  Failed to what?  Failed to stop selling the product?  Failed to fix the defect?  Failed to be decent human beings?  I have no idea because they don’t tell me.  Even a clichéd title like “Making a killing” would have been an improvement.  

The content of the AAJ piece is pretty good – other than the stuff from the 1970’s and 1980’s that no one cares about anymore.  Dalkon Shield?  Horrible, terrible, and evil.  And entirely irrelevant to anyone under 40.  Try asking a 30 year old what an IUD is and you’re going to hear something like “one of those bombs they use on the road in Iraq.”  Similarly, the Copper-7 thing doesn’t resonate, either.  (And neither does the document that was quoted under the Copper-7 paragraph.  *I* had to read it two times to see what was so bad about it.)

The bit about Renu would have been greatly improved by one picture of a guy with one eye, or a picture of an infected eye.  Even better if it were followed up with some of the nasty internal Renu docs, or even an excerpt from one of the FDA reports.  The article totally dropped the ball on Trasylol.  It left out the most important part of the Trasylol story – that the competing drug was completely safe, and cost 1 tenth of the price as Trasylol.  The Avandia part lacked punch, too. 

The entire document just doesn’t look like it was put together by a multimillion-dollar lobbying organization.  The stakes are too high not to hire typographers and desktop publishing experts to put these things together.

So many of the things that trial lawyers (and not just the AAJ) are amateurish or lack polish.  The Chamber and other tort “reform” whores, on the other hand, spend the money to put out stuff that looks impressive.  I mean, the Chamber’s latest doc is screaming to be printed on 110lb glossy paper.

As always, I’m willing to volunteer my time and resources for free to the AAJ or any other group who wants my help.  And as always, my inbox will remain empty.

Responding to some criticism of California’s Civil Gideon program

In the following WSJ article about California’s new Civil Gideon program, Ted Frank offers the following:

Ted Frank, a Washington lawyer who has written about civil Gideon for the American Enterprise Institute, a conservative think tank, said he believes the new law will result in more waste in the court system.

Parents fighting over child custody, for example, will be less inclined to work out an agreement on their own and more apt to fight in court because of access to free legal services, he said.

Mr. Frank said he believes landlords will have a harder and more expensive time carrying out legitimate evictions, which may cause rents to rise.

"What is clear is that you will never have a simple eviction because every single one of them will be litigated," Mr. Frank said. "The rest of the poor will be worse off because that."

Source: 'Civil Gideon' Trumpets Legal Discord - WSJ.com

I agree with Ted that some parents will be more likely to resort to litigation if they have free lawyers.  I also agree that landlords will have to litigate more (but not “every single one of them” evictions than before.  Ted’s unstated premise behind his “the rest of the poor will be worse off” comment is that landlords will pass these litigation costs onto renters in the form of higher rents.  He’s probably right about that, too.

Yet despite agreeing with much of what he says, I still think this program is a good thing.  Here’s why:

First, with respect to parental disputes: By ensuring that both spouses have access to a lawyer, it makes it much harder for the “breadwinner” to bully a low-earner into a one-sided agreement.  You can hear the argument now: “If you don’t agree to this settlement, I’ll hire a lawyer who will make sure you get nothing!”  A spouse with little money of his or her own will be less likely to “take the deal” if lawyers are made available.

What about the landlord scenario?  Well, one effect of this law will likely be that landlords will be less likely to abuse the eviction process.  I don’t know how many people in California are wrongfully evicted, but I presume at least some are.  I also presume that most of those evictions are against people who can’t afford a lawyer.  Wrongful evictions will likely drop.  I think we can all agree that’s a “good thing.”  But what about landlords being forced to litigate proper evictions? 

Many, if not most evictions are due to someone not paying their rent.  I don’t care if you hire the best lawyer in the world – if you can’t prove that you did in fact pay the rent, you’re going to lose your case.  All adding a tenant’s lawyer to the mix does is make sure the landlord’s lawyer has admissible evidence to prove the tenant never paid.  In the end, the landlord is going to prevail. 

Granted, during the period of litigation, the tenant probably isn’t paying the rent and the landlord is losing money.  Attorney fees are also adding up for the landlord, which will likely be passed along to other renters.  But I still see this as a worthwhile tradeoff if it prevents at least ONE wrongful eviction. 

Look, there are some advantages to just letting police send people directly to jail without the necessity of a trial.  We don’t do that, though, in part because we’re afraid that innocents will be sent to jail.  So we let even the guiltiest guy on the planet get a court-appointed lawyer and waste everyone’s time with a jury trial – even if the offense carries a maximum sentence of 1 day in jail.  It increases everyone’s costs, but it also keeps the police and district attorneys honest.  Giving lawyers to tenants will keep landlords honest.

If I Sued 30,000 Corporations, Would I Be a Vexatious Litigant?

Somehow, I bet the court would answer that question “yes” even though it didn’t find the RIAA to be a vexatious litigant.

Levy also ruled that the RIAA, which has sued 30,000 individuals, was not a vexatious litigant, shooting down Beckerman’s counter-complaint against his courtroom opponents. “Plaintiffs have doggedly pursued their copyright infringement claim, but I find no evidence of undue vexatiousness or ill motive on their part,” Levy wrote.

Source: Judge Refuses to Punish Lawyer for Anti-RIAA Blogging | Threat Level | Wired.com

The tort “reform” movement’s tacit acceptance of the RIAA’s litigiousness shows that (a) the movement is about protecting corporations and not “reforming” anything, and (b) there’s nothing wrong with suing those who wrong you.

Technorati Tags: RIAA,vexatious litigants,tort reform

I am so tired of reading abortion cases

I’m now sitting in the second Constitutional Law II session to focus on abortion.  I’m willing to bet that not a single person in this entire class will ever have occasion to litigate an abortion case.  Reading the Supreme Court’s jurisprudence on abortion is at least slightly interesting, but adds absolutely no value at all to my legal education. 

The professor spent literally two minutes discussing constitutional limits on punitive damages, and literally two hours discussing abortion.  I bet at least 10% of the people in this class will eventually seek or oppose punitive damages.  State Farm v. Campbell has so much more relevance to the practice of law than the abortion cases, yet it hasn’t even been mentioned by name!

There’s no reason the abortion jurisprudence couldn’t be covered in a five or ten minute lecture.  For all of the concurring and dissenting opinions, it’s patently obvious that each justice is just coming up with legal reasons to support his or her personal preference.  These cases have next to no value for learning constitutional interpretation or other useful legal skills.

Here’s hoping that we finish these cases up before the next class.

Technorati Tags: law school,abortion,waste of time

Why I Hate Lawyers

I know, it’s a strange title for a blog post from a guy who can’t wait to be a lawyer. 

I have a flaw.  Probably more than one, but only one I want to discuss tonight.  I have this nasty habit of only saying what I really think when I’ve had something to drink.  Well, I’ve got some Sailor Jerry rum in me on this fine Saturday night, and I feel like blogging about something that’s been stuck in my craw for a few days.

I’m a member of a trial lawyer listserv.  The listserv is made up of defense and plaintiff’s lawyers, and both sides often ask questions and share knowledge.  Recently, I made the foolish mistake of asking whether an individual with a specific set of circumstances had sufficient standing to bring an asbestos lawsuit in California.  You’d think I insulted someone’s mother.

First off, I got reprimanded on the listserv for not properly identifying myself.  Hmmm… my email address is Justinian AT justinian DOT us.  Now, I don’t know about you, but if I wanted information about a guy with that email address, I might be smart enough to go to www.justinian.us – my personal blog that has everything you’d want to know about me.  If I wasn’t smart enough to look at the email address and go to the vanity domain, I might use “the googles” and google Justinian Lane.  If you were to do so, you’d find (a) my personal domain, and (b) that I’m a punching bag for the corporate sycophants who run Overlawyered.com.  You’d also find that the President and General Counsel of the American Tort Reform Association have personally bashed me.  Translation: I’m about as pro-god-damned-plaintiff as you get.

I’d sooner shoot myself in the face with a shotgun full of rusty buckshot than represent Wyeth or Pfizer in a product liability lawsuit.  There isn’t a single person on this planet who is more pro-plaintiff and pro-trial lawyer than me.  And if you doubt that, I’ll challenge you to a nice game of Roshambo.

So it was offensive to me when I was “called out” for not listing the name of any law firm I work for.  Never mind the fact that half the people on my listserv reply from their iPhones or other mobile devices, all of which lack substantive identification.  And also never mind the fact that saying that I work for Jack Shit, Esq. doesn’t tell you anything about the law firms I do contract research for.  Whatever.

The real issue here is the cliqueish nature of the practice of law.  Right now, I’m not yet a lawyer.  So I’m a piece of shit.  Actually, I’m the shit on the shoes of the piece of shit.  I can’t find my ass with both hands and a road map.  I am a worthless, pathetic piece of human garbage.  If you talk to me, you need to hold your nose and blindfold yourself lest you be exposed to my putrid self.  However, in a year, I’ll have graduated law school and passed the bar.

At that time, I will become your master.  You’ll need to bow down and lick my boots, and be thankful that I allow you to even be in my presence.  Because as everyone (on the listserv) knows, once someone passes the bar, they shuffle off this mortal coil and become a living God.  Or so some of the people on the listserv act.

Of course, when I’ve pulled a case off Lexis, or sent them free research I’ve done, they’ve had no problem with accepting it and using it.  It was only when I dared to ask for a bit of their wisdom that I was castigated for (a) not identifying myself and (b) not sending asbestos cases to the “qualified” lawyers on the listserv.

The same qualified lawyers who aren’t smart enough to figure out how to use Google to figure out who the hell I am.  The same qualified lawyers who haven’t become successful enough to delegate listserv duties to their subordinates.  Whatever.

If you’re a lawyer, I don’t care what law school you went to, or what your LSAT was, or any other piece of elitist bullshit.  If I can help you represent an injured individual, don’t hesitate to ask.  I’ll pull a case, or do some research, or even help you tweak a PowerPoint at no charge because that’s what I do.  I help the “little guy” while all of my classmates and half of the practicing bar is sucking from the corrupt tit of corporate America. 

It really “grinds my gears” to have lawyers who aren’t published, who don’t blog, and who don’t do anything but handle bullshit soft tissue cases question my loyalty to the plaintiff’s bar.  Did I mention I’d rather shoot myself in the face than work for the rapacious asshats who run corporate America?  And did I also mention that if you don’t know who the hell I am, all you need to do is use Google, Bing, or Yahoo?  One search from either of them will confirm that I’m as legit as it gets.  I dare say I’m too legit to quit.  Certainly, I’ve burned enough bridges with corporate America that I couldn’t get a job at a defense firm to save my life.

And kick me in the crotch if I ever classify people as “lawyers” and “nonlawyers.”  As if someone’s worth is determined by whether or not they’ve gone to law school.  Most people who do go to law school are worthless wastes of space that I wish would stop sucking down my air.  Their whole Raison d'être is to eat the crumbs that fall from a CEO’s table.  I on the other hand will drag those sons-of-bitches into court and force them to answer for the wrongs they inflicted on innocent citizens.  Bash trial lawyers all you want, but they’re second only to soldiers in protecting the rights of everyday citizens. 

Did I mention 12 in the box?

Yeah, I did.  But you know what?  I laugh every time I look at the pic.  Apparently, one of the biggest names in the trial lawyer biz walked into a conference about a defective product and the conversation went something like this:

“I don’t care what the science says.  We’re gonna put twelve in the box.  Verdict.  Everyone settles.”

Twelve in the box.  If only I was a rich trial lawyer already so I could hire T. Pain and make a song out of it.  Twelve in the Box has to have at least the melodic possibilities as “I’m on a boat.”

“I’m in the box!”

Hmmm…

I’m so old that I can remember when “Man in the Box” was hardcore.  Maybe I’ll get bored this weekend and re-record it as “12 in the box!”

Technorati Tags: I'm in the box,12 in the box

You know what? Let’s just put 12 in the box.

That’s what a real trial lawyer says when settlement talks break down.  And here’s an illustration:

Check me out at Voices.InjuryBoard.Com

If you’re looking for a group of lawyers that “get it” with respect to the importance of blogging and social media, you’d be hard pressed to find a better group than the ladies and gentlemen at www.injuryboard.com.  I’ve known some of the people at InjuryBoard for years now, and we’ve often talked about having me work with them in some capacity or another.  It finally came to fruition – I’m now a contributor at their site http://voices.injuryboard.com.  Definitely check it out, and not just my first post there about defensive medicine/insurance fraud.

But first, a little disclosure about my relationship with InjuryBoard: I don’t pay them, and they don’t pay me.  They have no control over what I write there (or here), and I have no control over what else appears there.  Everything I write there is 100% my own, and it isn’t subject to preapproval or anything like that.  The great people at InjuryBoard have the same views as I do about the importance of the tort system and the importance of personal injury lawyers.  As such, it’s natural that we became friends. 

I’m glad to be blogging there, and I hope you’ll add http://voices.injuryboard.com to your blogroll.

Technorati Tags: InjuryBoard,Injury Board,social media,lawyers who get it