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

Pet Safety Alert – Pig Ears and Beef Hooves May Be Contaminated With Salmonella

The FDA tries to keep our furry friends safe, too.  Make sure that if you have these you dispose of them properly.  And properly means in such a way that a neighborhood stray can’t get to them!

The U.S. Food and Drug Administration is issuing this health alert to warn consumers not to use Pig Ears and Beef Hooves pet treats manufactured by Pet Carousel because the products may be contaminated with Salmonella. The products were distributed nationwide in both bulk and retail packaging for sale in pet food and retail chain stores. Pet Carousel is based in Sanger, Calif.

Source: FDA Health Alert for Certain Pet Treats Made by Pet Carousel

Why are my tax dollars being used to pay for an IP czar?

Considering all of the other problems facing the country, I’m just not very concerned about IP theft.

Victoria Espinel, a Washington consultant and former Covington & Burling associate, would be the federal government's first ever "intellectual property enforcement coordinator" if she is confirmed. Congress created the position last year, responding to concerns from filmmakers, music companies and other content producers about how to reduce copyright and trademark infringement, especially across international borders.

Source: Law.com - Senate Judiciary Committee Grills 'Piracy Czar' Nominee

There’s no greater heartache than having Glenn Beck outlive your child…

Victim In Fatal Car Accident Tragically Not Glenn Beck

Hat tip to my flappy-headed Canadian friend.  (And since this is from The Onion, expect profanity.)

Was Ayn Rand from Argentina? I ask because of Mark Sanford’s article…

Two thing jumped out at me.  First, why the hell is Newsweek publishing anything written by Mark Sanford?  Second, no wonder conservatives love Ayn Rand so much:

Ironically, as Heller's biography makes clear, while Rand's philosophy was based on the individual's absolute freedom, Rand herself exercised a dictatorial control over her followers. She would denounce anyone who expressed opinions even slightly diverging from her own. Her chief acolyte (and lover), Nathaniel Branden, once circulated a list of rules for Rand's inner circle to follow; one of them read, "Atlas Shrugged is the greatest human achievement in the history of the world"; another said, "Ayn Rand, by virtue of her philosophical genius, is the supreme arbiter in any issue pertaining to what is rational, moral, or appropriate to man's life on earth." For the leader of a group dedicated to human freedom, Rand didn't allow much of it around her. (Emphasis added.)

Source: Mark Sanford on Ayn Rand | Newsweek Books | Newsweek.com

That sure sounds like a lot of the conservatives I know…

Chamber of Commerce Seeks Jury Trial

That’s a funny (read: monumentally hypocritical) thing to do for a group that spends millions of dollars a year attacking jury trials.

The Chamber announced Monday that it had filed suit against the gonzo Yes Men gang. It tries to cast the suit as a garden-variety action to protect the organization’s intellectual property — specifically, two registered trademarks. The organization’s chief in-house lawyer called the suit “a customary response by any organization faced with this type of misconduct by the defendants.”

But that’s simply not the case. Far from a narrowly cast trademark protection lawsuit, this is blunderbuss, seven-count complaint filed by a major Washington, D.C., firm in U.S. District Court, with the Chamber asking for an injunction (including removal of YouTube videos), a jury trial, damages, attorneys’ fees and “such other relief as may be appropriate.”

Source: Lawsuit obtuse | The Platform | STLtoday

Joanne Doroshow on the Insurance Antitrust Exemption

Joanne never disappoints.  

It's fascinating to watch the insurance industry try to justify 60 years of anti-competitive behavior. The medical malpractice insurers are doing their best, that's for sure. They want medical malpractice "removed from the bill," according to insurance lobbyist Larry Smarr, president of the Physician Insurers Association of America, who testified that "market conduct abuses" never happen in the medical liability industry, and that repealing the most anti-competitive law in the nation would, in his words, "undermine competition."

Whatever their tactic and latest form of utterly absurd double speak, it's crucial that when Congress does repeal the McCarran-Ferguson Act, the medical malpractice industry is not left out. The Consumer Federation of America predicts that repealing this law for medical malpractice insurers could result in a 20 percent insurance savings for doctors.

Source: Joanne Doroshow: Medical Malpractice Insurers: Time to End Their License to Gouge

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.

That 1.26 billion judgment? Get back to me if they collect.

Many years ago, I obtained a six-figure default judgment against a company that wronged me.  I had done EVERYTHING 100% properly to get this default.  I had a hearing on the record, went over service of process, put on some evidence – everything.  Yet all the company did was file a motion asking to have it overturned in the interests of justice, and BANG! my default judgment was worthless.  So I don’t pay a lot of attention to these:

What's the cost of not showing up to court? For PepsiCo Inc., it's a $1.26 billion default judgment. A Wisconsin state court socked the company with the monster award in a case alleging that PepsiCo stole the idea to bottle and sell purified water from two Wisconsin men.

Now the company is scrambling to salvage the situation. The damages award was handed down on Sept. 30. PepsiCo filed motions to vacate the order and dismiss the claims on Oct. 13, saying it wasn't even aware of the lawsuit until Oct. 6.

Source: Law.com - Price to PepsiCo for Not Being in Court: $1.26 Billion

I’ll literally eat a shoe if the plaintiffs in this case collect $1.26 billion dollars.

Judge Joan Orie Melvin Reeks Of Hypocrisy

Look at this foolishness:

HARRISBURG -- Superior Court Judge Joan Orie Melvin launched an attack today on her opponent in the state Supreme Court race, Jack Panella, saying it was unethical for him to take large campaign contributions from Philadelphia trial lawyers, whose cases he rules on regularly.

"It's pay to play and it's justice for sale," Judge Orie Melvin, a Republican from Marshall, told reporters after today's meeting of the Pennsylvania Press Club, where she was guest speaker.

She said Judge Panella accepted $1 million in contributions from the Committee for a Better Tomorrow, a political action committee funded by Philadelphia trial lawyers.

Judge Orie Melvin acknowledged that she accepted $100,000 herself from that group, although campaign finance records show she actually received $125,000.

Source: Pa. Supreme Court candidate hits rival over contributions

I won’t even bother to point out how hypocritical it is to take $125,000 from someone and then criticize your opponent for taking money from them too.  OK, I guess I just did point that out.

But what I really wanted to point out is the whole “justice for sale” thing.  Defense lawyers are present in every case in which trial lawyers are present.  Is a judge selling justice if he or she takes money from defense lawyers?

What about insurance companies?  Here’s a little secret: If a trial lawyer files a lawsuit, there’s an insurance company that covers the defendant.  So insurance companies have just as much interest in “buying justice” as do trial lawyers.  Does Judge Melvin think it’s wrong for a judge to take campaign contributions from insurance companies?  I suspect not.

I’m very skeptical about judicial elections in general because so many people – plaintiff and defense lawyers, insurance companies, big companies – have the resources and motivation to try and “buy judges.”  But you can’t just say it’s wrong for a judge to accept campaign contributions from one specific constituency.  And it’s certainly wrong to say it’s wrong for your opponent to take money from the same constituency that you do.

Technorati Tags: trial lawyers,judicial elections,Judge Orie Melvin

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.