Law And More

"Caps Not the Answer," Declares Wall Street Expert

"Caps are not the answer" insists value investor Todd Sullivan. I asked him to respond to the tort issue of placing limits on damages in personal injury lawsuits.  Last week, the Ohio Supreme Court ruled such caps as constitutional and the Oregon Supreme Court ruled just the opposite.

"All caps actually wind up doing is this," continues Todd. "When there are caps legitimately hurt people do not receive just compensation for their injuries.  What needs to be done is to establish a better vetting process to eliminate bogus lawsuits."

Todd Sullivan's comments on financial markets appear in top-tier business media, including THE WALL STREET JOURNAL, FORBES, FORTUNE, CNN MONEY and his own VALUEPLAYS.

Reader comment needed on this cap issue.  Please contact Mgenova981@aol.com

Unlike Ohio Supremes, High Court in Oregon Rules against personal-injury caps

The tort-reform issue of damage caps in personal injury cases remains murky. 

Yes, last week the Ohio Supreme Court upheld the constitutionality of such caps.  But also last week, the Oregon Supreme Court didn't. As Peter Lattman reports in THE WALL STREET JOURNAL Law Blog, that court decided that "a state liability cap of $200,000 on personal-injury damages 'emasculated' the constitutional rights of a brain-damaged boy whose family sued an Oregon state hospital."

There's more.  Lattman adds that this issue has become high profile in California, which tort reformers keenly watch.  For example, the LA TIMES seems to be positioning the state's $250,000 cap on pain and suffering as an impediment to justice.  Many plaintiff attorneys refuse to take on these cases because the cap not only limits the awards but what attorneys would earn.

OH Guv Strickland's Bad Timing

Ohio Governor Ted Strickland might lack that key instinct in politics which makes or breaks careers: The Right Timing. 

His timing proved to be wrong when 15 hours into his new administration he vetoed "117" after it had already become a law.  The Ohio Supreme Court confirmed that bad timing when it declared that, yes, when the previous governor Robert Taft had let the bill become law by not vetoing it, it did indeed become law.  That tort-reform measure prevents future lawsuits based on applying the state's public nuisance law to what should be tried as product-liability ones.

Now, he's making plenty of BigFoot Democrats anxious in Iowa.  He's been in the state three times to support Hillary Clinton.  His presence and his words are supposed to indicate that important swing state OH is behind her. But, he muddied his message with his ill-timed efforts to reform that process. 

THE COLUMBUS DISPATCH reports today that in an interview with that paper last week, Strickland said that the Iowa caucuses don't make sense. Joe Hallett says that Strickland "called the GOP and Democratic caucuses hugely undemocratic,' because the process 'excludes so many people.' Anyone who happens to be working or is sick or is too old to get out for a few hours Thursday night won't be able to participate."

Strickland's assessment might have merit.  But as Hillary Clinton fights for her political life introducing this issue is not helpful. Hallett indicated that her campaign has distanced itself from Strickland's comments.

OH might not have its Guv running on the VP slot after all, despite the political importance of the state in Campaign08.

WALL STREET JOURNAL Rings out 2007 Decrying School Rankings

Today both the law blog and commentary sections of THE WALL STREET JOURNAL had pieces decrying those U.S. NEWS & WORLD REPORT rankings of schools, particularly law schools. The thrust of both arguments is that the rankings are not truly objective and in the end they say little about the quality of the graduate from those schools.

But, and this is what some writing in comments to the Law Blog stress, whatever the truth of rankings and whatever they can't say about the quality of graduates, they sure affect future careers.  Those newbie JDs from third-tier schools will find it almost impossible to secure a well-paying job or, given the lawyer glut, any job at all. That's the way it is currently.  Law firms which pay those $160,000 starting salaries can and do recruit from top-tier schools.  That's a reality law students should know by now. 

But, there are, as with everything else in life, other ways into good jobs.  There always was the non-linear path to the career goodies.  After all, only one of the four head defense attorneys in the landmark Rhode Island lead paint public nuisance trial II attended an Ivy law school. 

Yet all three were from respected law firms such as Jones Day and were representing major enterprises such as Sherwin-Williams, ARCO and Millennium Holdings. And on the plaintiff side, Fidelma Fitzpatrick from Motley Rice was not an Ivy Law School graduate. Yet, she was the one who will go down in legal history as the inventor of the novel legal concept public nuisance.

So what are some of those non-linear ways into a decent and maybe very good job?  Here are the most likely to pan out:

• Make contacts and use them.  An associate at Jones Day went to law school in the evening.  He now is employed there.  My hunch is that he leveraged his political and community contacts into being interviewed.  The rest he did on his own.  It's useful to volunteer in political campaigns and to be hired even for menial work in an elected official's office.  The knowledge you pick up and the people you meet are useful to law firms. I entered public relations through a job in a state senator's office as his research assistant.

• Become a star, anywhere, by any means.  This could be through high-profile litigation as was true for the prosecuting attorneys in the O.J. Simpson civil trial.  It could be through teaching and publishing.  It could be by heading up a movement, such as tort reform in family affairs.  Have this strategy in mind when you start out this indirect way to a wonderful job.

• Run for political office and win.  After that, you have plenty more options. If a law firm doesn't hire you, a public affairs one will as a lobbyist.  The work is interesting and pays well.

• Take a regulatory position and get noticed.  That's essentially how Clarence Thomas' climb began.

• Don't get comfortable.  As Steve Jobs recommended in his now-famous Stanford commencement speech: Stay hungry, stay foolish.

Reality in these volatile times is: Few careers have the luxury of being linear.  They can start out that way for the fortunate handful of young people who go to the right schools, exhibit high emotional intelligence and whose parents and parents' network can open doors. 

But after a few years, usually that configuration falls apart.  The industry changes, the company changes, the person isn't as resilient or cagey as necessary.  Then myriad other variables, especially ability to size up and take risks, come into play.  Most of my pedigreed clients and colleagues have been pushed out of the game.  Working-class me from Jersey City, New Jersey is still here, hustling. 

It could be that not having an Ivy advantage in the beginning better equips us for the long-term professional struggle. 

PROJO's John Freidah Rings in New Year with scathing RI Review

Does the universe carry a grudge for all lead-paint plaintiff areas?  The other day we read that California, where a public nuisance suit is pending, faces a $14 billion+ budget deficit.  And today, we read in Rhode Island's paper of record THE PROVIDENCE JOURNAL that nothing seems to be working in the Ocean State.  RI is home to RI lead paint trials I and II.

PROJO reporter John Freidah opens his "Auld Lang Syne, Rhode Island" article this way:

"State government is broke, Rhode Island was one of only two states to lose population in 2007, the schools lag those of its New England neighbors, college grads tend to flee the day they earn their degrees, our bridges are crumbling, some pols are in cahoots with crooked businessmen, and a felon hosts a show on the state's biggest talk radio station."

There's more, such as the state leadership was AWOL during the December snowstorm.

Ohio, where a state lead paint lawsuit is pending, isn't doing too hot either.  And Wisconsin, where the defendants recently were acquitted in two lead suits and 35 others are pending, also is struggling on any number of fronts.

Legal Opinion - The New Digital Dumpster Diving

For those in legal commentary who can break away from the illusion of "being completely organized" or of "doing a definitive search" there is so much unprecedented opportunity. 

Take public nuisance.  Without trying or pretending to be the number-one authority on the subject, we can publish, deliver keynote speeches, whatever on the issue.  And, people will pay attention.  I know. From this layperson's blog I have developed a brandname, new business and the right to charge higher rates. But not everyone can do this.  It's only accessible to those of us who can get comfortable in an intellectual world of digital disorder. 

For example, we Digital Disorders feel totally okay about putting out there a 50-page e-book on implications of public nuisance.  How many can or will be able to do that? Not many.  That's because their training doesn't allow them the option of functioning without the old ways [old certainties] of searching for, collecting, and interpreting information and opinions. They are still laboring over ponderous white papers and struggling to get their opinions accepted by peer-reviewed law journals.

The best synopsis of what is happening, why, and the commercial implications is provided by David Weinberger, author of "The Cluetrain Manifesto."  Weinberger is a fellow at Harvard Law School's Berkman Center for the Internet & Society.  In his new book is "Everything Is Miscellaneous: The Power of the New Digital Disorder," Weinberger explains how we used to do knowledge work back in the days of atoms and how we are forced to do it in a digital era. 

Back in atom time, we anticipated that knowledge would be neatly organized into systems such as that of the Library of Congress.  Even the rituals of everyday life such as eating would take on certain organization patterns, such as what glass to use, when to eat, on what to eat.

In a digital world of infinite knowledge, anyone who would attempt to create a definitive organizing principle would be a character in a science horror movie.

The consequences?  Weinberger contends that there will be no more anointed experts.  There can't be. Instead, the go-tos will be those like us lead-paint watchers who have been inventing how to find the information and perspectives we want and how we put all that together.  My hunch is that those formal permanent think tanks will vanish and informal just-in-time groups of curious open-minded people will fill that role.

There's more.  Weinberger makes two more observations. 

He views information as creating maximum value when it is freed from the traditional ordering categories.  Rather, its utility is far greater if it is just out there, in a digital pile, that we can pick through.   I call this is: Digital dumpster diving.

In addition, Weinberger advises the private sector to free up its information vs. guarding it as an asset.  In that way, through what I label as digital dumpster diving, it's gathered and played with by everyone.  Unique customer insights can and probably will result.  That's already occurring through the open sharing of our blogs.  In fact, I am convinced that blogs are the ultimate intelligence tool - both for customer insights and competitive information.

Here back in the land of law: It's not difficult to envision a radical change in how attorneys argue their cases, both on paper and on-their-feet, what kinds of instructions are given to juries, how attorneys establish brandnames through publishing, and how law firms position and package themselves. 

We see glimmers of this.  For example, law firms are experimenting with their organizational cultures. Some of the heaviest traffic on this blog is on posts dealing with how some firms such as Halleland Lewis Nilan & Johnson have already introduced fresh business models.   

But the tipping point could come when clients revolt.  They could push back on every aspect of their relationships with their outside law firms, ranging from how the case is approached to how it is billed.  In the December 27th LEGAL TIMES, Attila Berry notes that simply the issue of compensation, in this era of $180,000 associate starting salaries, is enough to trigger a revolution put in play by clients. They may, reports Berry, "start exploring other, less costly options." Will work be pulled in-house and/or will a new type of legal resource replace BigLaw?

RI, Birthplace of Lead Litigation, Being Compared to Down-and-Our MI

It happened.  Lead-paint watchers predicted that Rhode Island, where the first trial was held in lead paint public nuisance litigation and then another one, would become the "next Michigan."  Observers knew what such rampant anti-business attitudes could do to economic development.

Today, in THE PROVIDENCE JOURNAL, writer Jennifer D. Jordan reports that for the fourth straight year, population has fallen in the Ocean State.  Jordan quotes John Logan, Brown University sociology professor:

"Michigan and Rhode Island have something in common, which is the lack of job creation.  Generally, population trends follow economic opportunity very closely. The lack of growth is a good indicator of the lack of attractiveness of the state to people who might be looking for a job."

The cliche in tort reform is that any state or region which targets business with frivolous lawsuits - or even the threat of them - is putting out a sign: Economic Development, Go Away, Not Welcome Here.

Voodoo in Law - Casting Spells Through Emotional Intelligence

Call it charm, charisma, streetsmarts. Those who have "it" cast spells at work, including the analytical world of law firms. Good things, ranging from making partner to being known as a wizard in new-business development, come their way.  That "it" is emotional intelligence [EI]. And it can be learned, explains presentation coach and communications consultant Jane Genova in her free e-book "Our Emotional Intelligence: Wisdom from the Jersey Girl of the on the job, our own businesses, and more."

"Don't expect career cliches," Genova warns.  "These are lessons learned, forgotten and relearned from growing up in the mean streets of Jersey Cit, New Jersey.  Without those fundamentals I could never have put together a professional comeback when my business folded in 2003."  It wasn't until she applied that wisdom five years ago that she recognized it contained everything psychologist Daniel Goleman discusses in his books on EI.  Now she passes that on to others whose careers are stuck or becoming obsolete.

The 12 chapters cover why we can and should cast spells over our bosses, co-workers and clients; like gangsters, never take anything in business personally; how to push back and why not doing that is reckless; taking power rather than waiting for it to be given; managing fear; and more.  This equips newbies in law to succeed, no matter what is happening in their firm.  That's because they come to define the situation.

The book can be downloaded free here.

Things Jumping in OH - Now AG Dann Loses Top Aide

It may be the dead-zone holiday season for news but not in Ohio.  Yesterday, not only did the state Supreme Court uphold limits in personal injury cases.  The Attorney General Marc Dann announced that his high-raking aide attorney Brian Laliberte would be gone by January 9, 2008.  And there's no replacement in the wings.

As John O'Brien reports in LEGAL NEWSLINE, Laliberte, who has been Deputy First Assistant and Chief Deputy for criminal justice, will re-join the private law firm of Baker & Hosteler in Columbus, OH.  He had been a strong advocate of transparency in government, particularly in the matter of the state AG's hiring of outside counsel. He railed against "the appearance of cronyism" so strongly that he received a death threat.

White Women in Prison - Not "Eat Pray Love"

"Near the end of my sentence I got moved to the 'other' building which has carpeting and is dorm-like.  The stunning thing was that in my dorm, all the women prisoners were white.  In the TV room, the women were white.  Everywhere there were white women."

That's what middle-class white 53-year old Anne told me last night when I interviewed her. She had been in Niantic prison for four months for a DUI, her second in a few years.  "I had a wonderful lawyer, otherwise I would have been there for a year or even 18 months."  The state of Connecticut, where both Anne P and I live, imposes mandatory sentences for DUIs. And it's now serve-the-sentence-in-full, with no early release to a halfway house. 

Her five dorm mates were all middle-class white young-middle-aged or older women, all serving sentences for DUIs.  Anne is gregarious so, unlike those she bunked with who withdrew into themselves, every evening she spent the two hours that inmates are allowed in the rec room there.  She heard plenty of stories. 

Next to DUIs, the most popular crime was embezzlement. And the reason for that frequently was another addiction problem: Gambling at Foxwoods casino.  One woman had siphoned over $150,000 from the town coffers.

Among the other white middle-class women she had met at Niantic before being transferred to Club Med were more violent offenders.  Armed bank robbery was common.  Many of them resorted to that because of gambling debts.

I was shocked, scared. How could women my race, age and class wind up in, of all places, prison?  I would never have predicted that.  After all, unlike men, we have choices.  We could go the traditional route of marriage, children and a job not to be taken seriously.  Or we could hang out there unmarried, with a job we still didn't have to take too seriously or one we took very seriously.  I had assumed it was the pressure of being shoe-horned into stereotypical American male roles that enticed men to desperate behavior, you know, the kinds that get you locked up.

I asked Anne why she thought we women are winding up in lockup.  "Their lives aren't working," she answered.  By the look on her face, I knew she included herself in that group. Yet there was no counseling in prison.  And during the four months she was only able to attend five meetings of Alcoholics Anonymous.  Four of her five dorm mates felt they had wound up in prison due to a bad day or bad luck.  A problem? Not them. Some were repeats.

Could I have been Anne's bunkmate?  In 2003, my life wasn't working either.  It was the darkest bottom I have ever experienced.  Yes, I could have done something reckless.  What prevented that? What led an equally desolate Elizabeth Gilbert to seek out a safe exit strategy which produced bestseller "Eat Love Pray?" And why didn't options and hope occur to this growing number of white women in prison?  That's what criminologists should be researching.

Next week, how it was in a women's prison - exclusive interview with Anne.