Law And More

If RI SC overturns lead verdict will state sue its own expert witnesses?

Times are not good for expert witnesses.  Not only are they being forced to reveal on the stand the compensation they're receiving.  Remember those $400 to $600 hourly fees by some of the expert witnesses in the Rhode Island lead paint public nuisance trials.  They can also be sued by the side who hires them.

As Teresa Baldas reports in THE NATIONAL LAW JOURNAL, "in recent years, a growing number of courts have permitted parties to sue their own experts for negligent testimony, holding that expert witnesses should not be immune from liability from their own clients." For example, Baldas presents the lawsuit by a California couple against a property-appraisal expert for allegedly not providing on the stand an accurate estimate of the cost to rebuild their home.  The expert appealed, claiming immunity.  The CA Supreme Court wouldn't accept the appeal.

So, there are all kinds of questions we might be wondering about if the RI Supreme Court overturns the verdict in the lead paint trial.  Will the plaintiff in that trial - i.e. the state of RI - consider suing some of its expert witnesses, if that's permitted in RI?  Witnesses such as historian David Rosner have figured prominently in the appeal briefs submitted by lead paint defendants Sherwin-Williams, NL Industries and Millennium Holdings.  Could the state allege negligence in any of that testimony?

The argument against immunity goes this way.  You are paying the experts big bucks to be an advocate for you.  If they don't properly represent you, then there could be grounds to make them accountable.  This, though, doesn't mean any party can sue just because they are unhappy with the experts' performance or the outcome of the trial.

Clearly, the lucrative field of serving as expert witnesses has taken on significant risk.

"Rex Morgan M.D." - Now for "The Leadettes"

"Rex Morgan M.D." might be the most effective tort-reform tool out there. This comic strip, with great faux gravitas, illustrates the idiocy of personal injury lawsuits in the medical profession.  Dr. Morgan and his trusty assistant frame a patient situation as something to "fight."  That patient the MRSA Boy has informed Dr. Morgan that "he couldn't talk to him anymore!"  Today's strip ends with Dr. Morgan announcing that he's "looking forward" to the fight.

This week we lead paint watchers will be entering the legal arena again. That's set in the Rhode Island Supreme Court.  Some employees at the defendants' companies tell me they are "cautiously optimistic." Mmmmm.  We will see, won't we, when that RI SC ruling comes out in two months.

But maybe this lead paint public nuisance litigation would never have come to a Supreme Court if we had developed our own comic strip "The Leadettes."  The lead Leadette would be an earnest young Naderish plaintiff attorney Leadette I. 

This Superhero is quite the busy bee.  State and city officials duck for cover when Leadette I parachutes in to help them.  By the 8th strip in the series Leadette I is declared a public nuisance.  Like Ohio Attorney General Marc Dann, who could also become part of the "Leadettes," Leadette I refuses to resign from this lofty mission.  The battle of good and evil, only readers don't know which is which, ensues.   

If the RI SC doesn't give lead paint watchers what we consider justice, then we find tort-reform and corporate sponsors to fund the launch of "The Leadettes."  First stop: Walter Olson's office at the Manhattan Institute.  It was his blog "Pointoflaw.com" that brought "Rex Morgan, M.D." to our attention. 

Dodging Stealth Layoffs - Grow Up & Learn to Develop New Biz

The Shinyung Oh firing story brought out of the closet alleged stealth layoffs in BigLaw.  No coincidence, as this story dominated the legal media, mainstream and blogosphere, Oh's former employer Paul Hastings formally denied "layoffs."  Whatever. 

The real story is: Survival is impossible in BigLaw  without bringing in new business.  That's the game.  So how do busy-bee attorneys, focused only on their work, learn to hook some new fish?

The first part is to grow up professionally and realize this goes with the territory.  And it's not only in law but all professional services that job security, status, and perks come with being a rainmaker.  Doing good work is and always will be a defensive strategy. More accurately, work of any quality counts less than business development.  I know. 

When I started making referrals to BigPR, I got treated like a member of the Establishment vs. "just" an excellent writer.  That new biz I brought BigPR came from my blogging.

That brings me to part two of developing biz. That's putting oneself out there. Professional services firms promote a few stars.  I was never one of them so I got an early intro to continuous self-promotion.

Relax: The self-promotion game today is easier.  That's because, thanks to technology which makes the "long tail" possible, we only need to be niche players.  Marketing expert Steven Van Yoder calls that becoming "slightly famous" or a "mini celebrity."  Let Alan D publish all those books and defend all those high-profile clients. 

We only have to get known to the right groups of people.  We can do that through blogs, digital networking, getting elected to a part-time office such as state senator in Pennsylvania, worming our way on a few boards, and hanging out just enough with the philanthropy crowd. The challenge is to keep doing this. Rainmaking is totally dynamic.  That means if we stop the platform we built falls over.

Part three is more Machiavellian. It's manipulating situations so that we become associated with everything good and nothing bad.  Those with more power or cunning in organizations and in the industry will be attempting the exact same things.  That's why they don't get canned for performance reasons [e.g. stealth layoffs], keep getting promoted, and seem so smooth.  How to do this better and more often than they? 

• Don't accept their favors.  They will offer to run this by the client or deliver this report or whatever.  Most careers are slaughtered on the altar of favors accepted.

• Be rude.  Hang where and when we're not wanted and abruptly decouple ourselves from radioactive people and situations.

• Make it a personal mission to pick up intelligence about everyone and everything. You bet, that opens doors.

• Choose the right assignments at the right times.  Not all work can be leveraged into opportunities for new biz.

Part four is to bail out of organizations, networks, and even friendships which are blocking access to potential new biz.  Yeah, it's a question of a good fit. Bad fits not only are not productive.  They make us appear inept.

Part five is to pray.  It doesn't matter to what.  What praying or turning the challenge over to a higher power, the universe or an ancestor who passed over to the other side does is lift the pressure off us.  We surrender.  That seems to do the trick, all the time.  Don't ask me how or why.  A tip: This kicks in faster if we get on our knees. 

 

   

 

"The Law Firm Can't Kiss You Goodnight," Observes Silicon Valley Guru

There seems to be something rotten in BigLaw.  So, I've parachuted in Silicon Valley guru Marsha Keeffer to look at this old-line institution and suggest how it can be transformed. 

Keeffer is the Executive Director of Rubicon Consulting, a strategy firm that helps high-tech firms find and win markets.  Earlier she had worked advising law students and lawyers.

*********************************************************************************************************************

JG:  What's wrong with BigLaw?

MK:  A more useful question is: Does BigLaw realize that it won't survive unless it changes just about everything it does and how it does it?

JG:  Come on, the institution is too encrusted with its traditions. For instance, I can't foresee law firms moving away from their own pedigree branding and recruiting only those with pedigree credentials.  That would be like the Pope converting to the Church of England. 

MK:  Pedigrees are for dogs.  I have been around the work world for decades.  I know that people can do anything they want to do.  If law firms and lawyers get it that they will have to perform exactly according to the specs set by prospects and clients, they will change.  And that might make the profession not only more profitable but a happier, more innovative and service-oriented one.

When I was working in San Francisco doing resumes for lawyers as well as law students and providing career guidance, not one liked practicing law - at least not the way they had to practice it in traditional firms.  They loved law.  But once they experienced the reality of how the business of law operates as associates or summer interns, they started fantasizing about an exit strategy.

You know the usual suspects:  The politics, billable hours, old-line vertical leadership models.

In Silicon Valley, that dark side of human nature gets under control fast.  That's because we know that results come from people. Without the people there won't be results.  Yes, I can envision a day where there is a big law firm with not one person in it.

JG:  So, how can the firms and the people change?

MK: Where to start?

Probably the branding.  The branding of most of BigLaw seems to be losing any connection with performance.  Some prospects and clients might be still impressed by the old-line credentials of good schools, awards achieved, articles published in law journals, and the big case won. 

But the pressures in business are forcing more shoppers for legal services to not pay any attention to all that. 

Good schools frequently breed arrogance and that can cause non-responsiveness. 

Awards are something that media game-changer Roger Ailes has no use for and soon enough the legal world won't either. Who cares if you were lawyer of the year.  Tell me what you can do for me now.

By time articles appear in law journals they are dated - yeah, think blog. 

And a case won today doesn't mean the prospect's case will also be won or settled appropriately.   

The brand has to be dynamic, just like the Internet.  It will be a snapshot of what the firm and its work force are achieving right now.

JG:  What else will have to change?

MK: The way people are treated.  Early in my career in The Valley I learned there are two parts to work.  One is doing tasks in a way that allows the organization to compete, earn healthy profits, and grow.  The other is having your emotional needs met. 

The firm can never kiss you goodnight.  But it can create an environment in which you are able to feel good about yourself, at least good enough to find the right person to do that kissing.  I always tell a new team member about that scene in "Michael Clayton."  It shows Tilda Swinton alone in her home, laying out her clothes for the big meeting as she practices saying her messaging points.  Total emptiness.  And so unnecessary.  Eventually, both parts suffer: The quality of the tasks and the quality of the human heart. 

JG: What else?

MK: The insularity.  This isn't only in law.  It permeates most of professional services, including your field of communications.

Our team knows it has to consume information, insights, and trends outside their discipline.  That might mean for an engineer to read "Henry V" and for a public relations type to take a coding course.  Do enough of that and lawyers will be making those intuitive creative leaps that the great thinkers and artists have over the centuries. Think out of the box may mean think out of your field.

JG:  This kind of shift in model isn't an easy one.

MK:  Why not?  Look at Rupert Murdoch.  He's having no trouble gutting THE WALL STREET JOURNAL.  What he has that any human being can have is courage and confidence.  Along the way to doing all the right things to get the right grades, the right internships and the right jobs in the right firms, courage and confidence can go underground.  But they can and do re-emerge soon enough.

JG: This is a lot to digest. Can we plan to parachute you in again for more?

MK: I'm holding onto that invitation.

****************************************************************************************************************

About Marsha Keeffer:

A lifetime resident of Silicon Valley, Marsha Keeffer started her career as a waitress, then went on to retail.  After an MBA she founded MKeeffer Consulting, LLC where she provided public relations services to BEA Systems, Brio Software, Hewlett-Packard, and Rubicon Consulting.  The latter asked her to come abroad full-time.  At Rubicon Consulting, where she is Executive Director, she helps high-tech companies find and win markets.

You can contact Marsha Keeffer at Marsha@rubiconconsulting.com. 

BigLaw, et al. - Beware Black Swans

This Monday's article in THE AMERICAN LAWYER is titled "For Am Law 100 Firms, the Sky's the Limit." The author is Peter D. Shere, a business professor at the University of Calgary. 

No fool, Shere provides disclaimers for his rosy projections for growth of major law firms.  That done, he sticks to his faith in relying on the past for predictions about the future.  From that faith, Shere discloses what he found when, based on data from the past, he analyzed the growth trajectory of BigLaw.

Among Shere's predictions is: "U.S. corporate law firms of the future will we wealthier, larger and more international than were in the past."  Okay.  But what about Black Swans, those unexpected, probably unpredictable developments or events, which have game-changer impacts? 

Uncertainty expert Nassim Taleb who published a book on this subject "The Black Swan" has remained on the best-seller list for years.  That's because in these increasingly volatile times his concept makes plenty of sense. 

Think how the Internet derailed Microsoft and how that company can't seem to get traction in this new field.  In my profession I am still reeling from how the Black Swan PowerPoint changed the art of speechwriting into the craft of creating presentations through the technology of PowerPoint.  And the introduction of Green-Collar jobs could be the Black Swan which eliminates those white-collar/blue-collar class divides in the supposedly classless U.S.

Most shrewd industries, companies and even individuals have given up on long-term planning.  While it's intriguing to speculate about the future, the smart money isn't betting on it.  What Black Swans could be the game-changers in the business of law?  Where do we start?  Here are just some:

• Software could be developed to simulate all the possible strategies and tactics, both traditional and novel, for a certain kind of litigation, say, lead paint public nuisance.  The companies being sued for allegedly contributing to a public nuisance through the lead paint products they have not produced or marketed for many decades could simply use that software.  Then their in-house legal staff could go on from there.  The nuts-and-bolts legal filings and briefs could be outsourced to India.

• Alternate forms of dispute resolution could become mainstream, even for major kinds of litigation.

• The U.S. could so lose its economic-leadership status vs. other nations that the legislative branches nationally and in the states push through industrial-strength tort reform.

• No one wants to train to become attorneys any more.  That means no talent or even warm bodies to staff traditional type law firms.  This sort of thing happened in the nursing profession.

• Companies take the lion's share of legal work in-house.  Some General Counsels predict this will happen.  They have had it with the billable hour.  The revolution, they tell me, won't be announced.

Chances are actually slim that BigLaw as we know it will be anything like what it is in several years, even if there are no Black Swans but only predictable development. Some of those expected developments? 

• Associates' being fed up with the 80-hour week without a real shot at partnership.  Human resources research shows that Gen Y males want more of a life.

• Companies like Cisco just saying no to the billable hour.

• More defendants such as Sherwin-Williams which refuse to settle, discouraging those kinds of class-action lawsuits.

• Collective action among workers in the legal profession to scrap the current model of the traditional law firm.

So, what is BigLaw to do to keep profits healthy and growth possible?  I will be presenting a number of exclusive interviews on that on this blog.   

"I think the RI case is pivotal," Columbus, OH attorney

All eyes have turned to Providence, Rhode Island.  This Thursday it will be the setting for the RI Supreme Court oral arguments for the landmark lead paint public nuisance lawsuit.

Today, the influential Ohio conservative newspaper the COLUMBUS DISPATCH carries a five-part series of articles on lead paint.  In one, titled "Should paint makers pay," by Mark Ferenchik, there is a brief interview with attorney John P. Kennedy with Crabbe Brown & James.  Based in Columbus, OH Kennedy, reports Ferenchik, "teamed up with  RI law firm to help Columbus with its lead paint suit." Kennedy observes, "I think the Rhode Island case is pivotal." 

Columbus as well as the state of OH both still have in play lead paint public nuisance lawsuits.  A number of other cities in OH such as Akron and Cincinnati have dropped their suits.  For the city of Toledo, the court ruled against the plaintiff and that was the end of that.

The RI SC will give its ruling about two months after the oral arguments.  But legal and public policy analysts following this litigation for a decade aren't optimistic that the ruling will end this saga.  There are so many legal and public policy issues embedded in what the case has become. 

Therefore plaintiffs and would-be plaintiffs as well as current defendants and companies which could be pulled into the litigation will probably receive no clear signal where this kind of litigation could be headed - not in lead paint per se and not in the whole new field of public nuisance lawsuits. The problem with that ongoing ambiguity is that the plaintiff bar could over-simplify so-called "victories" in the litigation.  That could encourage other cash-strapped states and cities to also consider filing either lead paint or other kinds of public nuisance litigation.

On the other hand, the defendants, which are public companies, have to keep informing the investment community about the possible implications of the litigation.  There is no definitive statement the defendants such as Sherwin-Williams, NL Industries and American Cyanamid could make to Wall Street right now or perhaps even after the RI SC ruling.  The immediate result has been that some of the companies' stocks have been undervalued.

Of course, if the RI SC rules to overturn the verdict in favor of the state and acquit the defendants, the game could be over for the plaintiff bar, at least in relation to lead paint.  OH will probably throw in the towel.  And California, which had a taste of victory when the ruling against contingency was overturned, could also decide to drop its interest in suing the former paint companies.  The defendants have filed an appeal with the CA court to have a re-hearing on that ruling.  In addition, those defendants submitted to the RI SC a copy of that appeal and asked that court to also consider it in its ruling.

The five-part coverage on lead in the COLUMBUS DISPATCH includes:

• Lead's legacy
• Why you should worry about lead
• Program helps abate lead fears
• Should lead makers pay?
• Lead kills mining town.   

OH Dems Vote 90-1 to kick Dann out of party

The vote was 90-1 to boot Ohio Attorney General Marc Dann out of the state's Democratic Party. 

Joe Hallett reports in the COLUMBUS DISPATCH that the Dems "defrocked" Dann on Saturday, "rescinding its endorsement and denying him participation in party functions."  The lone dissenter is Dorothy McLaughlin from Dann's home county of Mahoning.  She commented, "Ye who has no sin among you, you cast the first stone."  She assesses that he did a good job.

Dann continues to resist the pressure on him to resign.

RI Budget Hole - Will it hover over SC lead paint appeal

"State official learned yesterday that Rhode Island's financial problems have grown substantially worse," reports Steve Peoples in THE PROVIDENCE JOURNAL.  In fact, the hole grew by about $50 to $55 million.  Earlier the powers-that-be anticipated a total deficit of $384 million.  That's now history.

The question for lead paint watchers is: Will that worsening financial condition hover over the RI Supreme Court oral arguments this coming Thursday.  The plaintiff's request for more than $26 million for compensatory damages might sound "fair."  After all, the plaintiff argues that three state agencies have over time spent that much on diagnosing, treating and preventing childhood lead paint poisoning.  To get this money reimbursed, the plaintiff is requesting a new trial, claiming that the trial court made errors in not allowing for compensatory damages.

We all know that political and public policy issues intersect with legal ones.  It will be interesting if Special Assistant Attorney General Genevieve Allaire-Johnson, who is presenting the state's arguments on compensatory damages, alludes to RI budget problems. [Here is the list of plaintiff presenters Download NoticeofCounsel.pdf ]. 

RI SC - The Stagecraft as Strategy, May 15

We lead paint watchers now know the presenters for both the defendants and the plaintiff at the Rhode Island Supreme Court oral arguments on May 15th.  Who presents is as important as what they present.  Or, as we say in communications, stagecraft is strategy.

For those who want to drill deeper into this notion of presentation as theatre and theatre as the power of persuasion, a useful read is the 1999 book "The Experience Economy: Work Is Theatre & Every Business a Stage."  The two authors B. Joseph Pine II and James H. Gilmore deconstructed how winners know exactly how to set the stage.

The Defendants

The defendants, as I see it, have to accomplish two key objectives in their presentations.  [Here is a copy of the list of presenters, the issues, and the timeframes Download zpfile000.pdf] 

For one thing, they have to make a connection with the RI Justices.  Those attorneys who represented defendants Sherwin-Williams, NL Industries and Millennium Holdings in the lead paint public nuisance trial II were all from out-of-town.  Clearly, what's needed is more local flavor.  Otherwise there's the appearance of carpetbaggers who have no roots or interest in the state of RI.

Therefore, along with the usual suspects, we have presentations by four local attorneys. 

One of them is John Tarantino who we already know from the actual trial.  He represented Atlantic Richfield.  On May 15th, he has two roles. 

One is to rebut the plaintiff's request for an overturn of the acquittal and a new trial on the successorship liability issue [10 minutes].  The other is to be the pointman for all four original defendants on the contingency agreement issue [10 minutes]. 

It was Tarantino who was the pointman on this very issue when the defendants brought it to the RI Supreme Court back in 2006.  He made the oral arguments - successfully.  The RI SC didn't toss the motion but put it on hold until other substantive matters relating to the case had been resolved. Tarantino is well-known in the state and had won RI Lawyer of the Year. In addition, his working-class roots seem apparent.  That's a plus for this particular context.  The jurors, when I interviewed them, sang his praises.

The other local attorneys are:

• John A. MacFayden - to address the issue of liability, more specifically the public nuisance matter.  He will have 15 minutes vs. out-of-state attorney Don Scott who has 5 minutes.  MacFayden also will handle the rebuttal part on the public nuisance matter.

• Joseph V. Cavanagh - to address the issues of separation of powers - Legislative Deference, Constitutional, and Trial error.  In this segment, Cavanagh is only alloted 5 mintues vs. out-of-town Mickey Pohl's 15 minutes.  Pohl will also handle the rebuttal.

• Thomas R. Bender - to address the contempt convictions of the RI Attorney General Patrick Lynch.  The latter requests those convictions and the fines be overturned.  Bender will argue that they be maintained.

The second necessary piece of stagecraft is to have a female presenter.  We know her from the trial - Laura E. Ellsworth.  She will address the important matter of compensatory damages [10 minutes].  The plaintiff is introducing another financial matter here in requesting compensatory damages.  For this, the state of RI wants a new trial and is talking in the ballpark of more than $26 million.

Ellsworth is from out of town.  But she brings the traditional female touch into a case all about the welfare of children.  In this she balances out the presence of the two female plaintiff presenters Genevieve Allaire-Johnson and Fidelma Fitzpatrick. The latter argued passionately during the trial about protecting the children of RI from the hazards of lead paint.  At the trial Ellsworth made only one presentation, that was on the controversial issue of IQ.

The Plaintiff

The state of RI has to communicate that this case is theirs, not that of the private law firm Motley Rice which has been hired on a contingency basis. Therefore, the presenters should be primarily from the office of the Attorney General, which filed the lawsuit.  And that's exactly what's staged.

The two attorneys from Motley Rice - Jack McConnell and Fidelma Fitzpatrick - have a major role only in the liability segment.  Even there they share the stage with Assistant Attorney General Neil F.X. Kelly.  McConnell also has full responsibility for addressing the Atlantic Richfield matter, which of all five matters for argument, is probably the least important to the state.

The other presenters from the AG office include:

• Genevieve Allaire-Johnson, Special Assistant Attorney General - will address compensatory damages.  This pits a female against another female [Ellsworth] on the "fairness" issue of compensating the state for the costs incurred by its three agencies in preventing, diagnosing and treating lead paint among RI children.

• James R. Lee, Assistant Attorney General - will address the contempt charges.

• Neil F.X. Kelly, Assistant Attorney General - will address the key issue of the contingency fee agreement.  If contingency is not permitted, then another trial probably is not possible.  Both the defendant and plaintiff are requesting new trials, for different reasons.

[Here is a copy of the Plaintiff's Notice of Counsel and Issues Download NoticeofCounsel.pdf].

Clearly, both the defendants and the plaintiff recognize that perception can be reality, even in as august a legal proceeding as an appeal before a state Supreme Court.

RI SC - Captain Ahab in Protocol Seating

No question in my obsessed mind.  Right there in protocol seating at the Rhode Island Supreme Court lead paint appeal will hover Captain Ahab. 

This decade-long litigation as well as all its subthemes of public nuisance and the right thing to do has consumed us.  Its our great white whale.  We will be in the courtroom in person or by our Internet hookup in hopes that the oral arguments will be the beginning of the end.

If the ruling primarily favors the defendants, with an overturn of the verdict or a new trial, the end could happen fairly quickly.  Or if the ruling isn't to the likings of Sherwin-Williams, NL Industries and Millennium Holdings, then we might all move to a whole other type of court: federal.  There are adequate constitutional issues, ranging from separation of powers to right to due process, for the case to have standing in federal jurisdiction.  After that, it's becoming more and more probable that we could be actually going to the U.S. Supreme Court.

If the ruling primarily favors the plaintiff, then it well might be the beginning of the golden age of public nuisance lawsuits, along with contingency agreements as the key enabler. Plaintiff attorneys can simplify this step in the legal process as a win for public nuisance and promote it.  I can't rule out any industry which wouldn't be a candidate for being sued as contributing to a public nuisance.

And that will be the start of something new.  Lead paint could have a few more hurrays in places like California but then will likely fade away. In the April edition of THE AMERICAN SPECTATOR William Tucker observed that lead paint "somehow lacks the pizzazz or practicality of previous bar crusades."  There could emerge something as big and enigmatic as Moby Dick to become attached to.