Just been reading a Kenneth Jost column at cqpolitics.com, Courts & the Law: Stones Left Unturned. Though Dickie Scruggs’s name comes up, it’s really more about Bill Lerach and Mel Weiss. But the real nut of the piece, I think, is here:
With plaintiffs lawyers so notoriously in the news, the trial lawyers’ organization has been notably silent. The American Association for Justice, or AAJ — previously named the Association of Trial Lawyers of America — has had nothing to say about Lerach and Weiss. The group’s president, Kathleen Flynn Peterson, did comment after Scruggs’ indictment in December, but only to attack the "slick talk from those that want to brand trial attorneys as villains. "
The trial lawyers’ silence is "understandable, " [Vanderbilt Law School civ-lit expert Richard] Nagareda says, not only because their peers are under scrutiny but also because critics of the trial bar will try to depict the misconduct as typical of plaintiffs lawyers. "It’s not the norm, " Nagareda says. But he is not ready to dismiss the recent cases as nothing more than a few rogue lawyers. "If you turn over stones, will you find other abuses? " he asks rhetorically. "Is this pervasive? I don’t know. "
Congress could apply its potentially significant oversight powers to finding out, then move on to consider some new federal rules to govern securities fraud suits beyond those enacted a dozen years ago. But that shouldn’t be expected in the current political climate: At $1.9 million donated so far, the AAJ political action committee is the 16th most generous PAC toward 2008 congressional candidates — and 96 percent of its money has gone to Democrats.
Well, “16th most-generous” raises 15 questions all by itself, doesn’t it? But the “stones left unturned” that count most to me are those hiding the solution to this problem, whether “problem” connotes mostly perception or actual fact.
How do we find the correct way out of this, a route to an untilted arena where the (heavily “Democratic”) Davids and the (almost 100% “Republican”) Goliaths can again wage fair legal battle? I put the partisan labels in quotes because I’m not satisfied that they really mean much more than handy weaponry to these combatants (who, I always suspect, are more likely members in good standing of The Money Party than either of these).
I wonder how we could move the debate — and the problem-solving it should lead to — onto that apolitical ground that I suspect is actually native to the major participants. How do we get politics out of the way long enough to deal with the law’s issues and processes? I know politics and law are too closely and symbiotically related ever to be separated entirely. But surely some ways exist to slip partisanship a mickey and anesthetize it just long, just deep enough to get this surgery done?
Or is that just crazy talk? What do you think? What might help? Take your time . . .
How do we find the correct way out of this, a route to an untilted arena where the (heavily "Democratic ") Davids and the (almost 100% "Republican ") Goliaths can again wage fair legal battle?
Is this a joke? No, the partisan labels don’t help and don’t even make sense, especially in this context.
Crooks are crooks, and they’re going to show up from time to time in every human institution. We need SYSTEMS that do not provide incentives, and do provide disincentives, for anti-social behavior like bribing a judge or lying under oath or falsifying evidence. Then we have to have a SOCIETY that enforces those systems and punishes, including socially, those who violate them.
As to systems, how about a "loser pays " rule? That sort of rule would have had Dickie Scruggs in another career altogether. (Unfortunately, I believe there ought to be exceptions … which brings us back to ultimately having to rely on human beings like judges with the sense to understand the exceptions, apply them narrowly and resist bribery. But at least the incentives would be in the right place.)
What about going back to the idea that the defendant can be found liable for the plaintiff’s personal injury only if the defendant was at fault (legally speaking) in causing that injury? Or even that there has to be an injury in the first place?
With weak judges unwilling to grant summary judgment and lawyers viewing cases as "investments, " we have created a system in which you might as well try … you could win big!! And if they’re a lot of you and you have a lawyer like Dickie who knows how to work the media and politicians like Waksman, you could win BIG without ever even going to court!!
That’s on top of the now popular notion that if someone’s hurt, somebody (often the bystander with the deepest pocket) ought to fix it. And if that doesn’t work, then the government should fix it.
Then we can talk about settlements in which the "client " gets $12.46 and the lawyers get $50 million. No bo bo is too small to go unaddressed!
Etc., etc. ad nauseum. There’s a lot to talk about. None of the issues has a Democratic or Republican label.
I can’t make excuses for Bill Lerach, whom I’ve met and spoken with a number of times over the years. He did something wrong. He knew it was wrong when he did it. He took a chance. He lost. He got two years in prison, and will serve somewhat less than that. And the $250,000 fine and $7.75 million extra he had to fork over to the U.S. government came nowhere near breaking his piggy bank. He’ll leave prison a rich man pushing age 65 (uh, the new 45) and thus no sweat as far as losing his law license is concerned.
I’m linking to Lerach’s piece in the Washington Post back in November, his mea-less-than-culpa written while waiting to be sentenced. In it, he points out what he was up against as far as the corporate defendants are concerned. There are plenty of stones in that field for looking under, too.
Until more recently, the trial lawyers have been dragged down as a group by the worst of their kind, residing at the bottom of the heap … the advertisers and aggregators who almost never take a case they can’t sell to somebody else. That means trying to get fee sharing arrangements with real lawyers who go into real courthouses and really try cases, and thus have the grudging respect of defendants. There is a subspecies of the advertisers and aggregators that actually keeps the cases and settles them, but for a whole lot less than defendants would pony up to real trial lawyers. They make money on volume … including the shrieks of their clients once the chump-change payday arrives.
Truly frivolous suits are rare because they’re not profitable to carry out. The great majority of trial lawyers screen as carefully as Warren Buffet’s bean counters.
The somewhat newer phenomenon is the increasing number of bad apples at the top of the trial-lawyer food chain. It includes the likes of Lerach and Scruggs and they’ve been found out. (And it includes lawyers who magically turned asbestos victims into silica victims to keep the game going … same individuals, morphing their symptoms into different diseases. A lot of good trial lawyers already left toxic torts.)
Both Lerach and Scruggs believed they did wrong for the greater good. And both believe they really didn’t do much wrong. (I think that down past the reptilian-brain filters Scruggs knows he was quite bad, but he’s holding out to save a little face, and holding on with whatever other synaptic firings settle the cognitive dissonance of his denial.)
Those damned trial lawyers. A lot of time and money, over a lot of years, went into the approbation infused into the term. Meanwhile, caps on non-economic damages in many states have sunk any possibility of justice for salt-of-the-earth folks with legitimate cases — because they’re not cost-effective endeavors for business-minded trial lawyers, however much some of them truly ache for having to turn away aggrieved people. (That white-hat thing really is important to many of them.) Then came the Class Action Fairness Act to head "em off at another pass. And so on.
Here’s a real marker of what corporations think of getting sued: I spoke with a law prof at Cornell recently who is writing up a study that shows corporations want to go to New York to sue other corporations. Why? Because they won’t have to do arbitration there. They want their day in court. With their lawyer biting and clawing the other corporation’s lawyer. With the hope of extracting a whole lot of money from the other side. They go to nearby Delaware for what amounts to safe-sex incorporation, but they want to take the, er, condoms off in New York and bugger their opponents. (BTW, they want us to agree to mandatory arbitration when we buy a damned lamp from them ".only slight exaggeration there.)
Turning over stones, indeed. Shame on CQ’s Ken Jost for this one. A lot of big rocks have been placed at some of the entrances to our justice system in recent years. Jost is calling for more. There are plenty of bad actors on any and all sides. Broad sweeps of the broom just move them to other rooms. Meanwhile, good folks with good cases get swept aside.
Lerach’s piece:
http://www.washingtonpost.com/wp-dyn/content/article/2007/11/09/AR2007110901563.html
Damn, thanks so much for this comment, imb (glad to see you back!). Yes, this is what’s so bedeviling — all the gaming at the cost of the truly aggrieved. And how we brake and start to reverse the cycle, I just don’t see.