The composition of the supreme court, U.S. or state, usually determines the thrust of the ruling. There are exceptions, of course. Last February,"Riegel v. Medtronic" seemed to be one of them, at least for the conservative U.S. SC. But generally, parties appearing before a supreme court have to factor in the makeup of that specific court. This is very important.
That's because the composition of the court should help the attorneys frame their arguments and form realistic expectations about the ruling. Face reality: If that court's MO is highly conservative, then it's insane to anticipate it'll veer wildly off away from that ideology. That only occurs in the plot lines of "Boston Legal."
Many lead paint watchers, for example, feel optimistic about the personal injury case to be heard before the Wisconsin SC. That's because with the election of Michael Gabelman there is a majority of conservative legal thinking. But even with that, there are no guarantees. Courts do surprise now and then. In the "117" issue in Ohio, we were also optimistic because that SC tended at the time to be conservative. The court ruled "117" a law.
Therefore, I've done intelligence gathering on what seems to be the bent of the Rhode Island SC. The candor of the sources was amazing and I am very grateful. However, the sources went so far off the record that I had to place them in a witness protection program. Those sources range from a RI attorney to national legal experts with experience with or knowledge of the RI SC.
In general, here are the two buckets the opinions fall into:
Respect for the Question of Law. As one attorney put it, "Generally the Rhode Island Supreme Court is not afraid to vacate a trial judge's decision, particularly on a question of law as opposed to a factual finding. In my opinion, the Court also tends to be conservative when it comes to making new law or setting a novel precedent. In short, this particular court is not looking to make history." [Author's note: That might particularly be the case with the world watching - via the webcast.
Liberal, But Without Maverick Tendencies. These four observations came in about this court:
- You have to consider that Rhode Island is the nation's most liberal state and the court certainly isn't likely to buck that.
- This court isn't positioned to be a leader in anything. It doesn't seem to want to be a legal pioneer but appears to be more comfortable following the crowd.
- As the grapevine has been whispering for years, this court and all the institutions in the state tend to be very insider-y. We used to refer to that as "the old boys' network." In 2008, it won't exactly appear as that but we can anticipate that it could default that way.
- The court, just like the state of Rhode Island, doesn't welcome being put under a national microscope. It will configure its behavior and ruling as to limit any further attention. The good news there is that could force it to bend over backwards to be more objective than it might have in a case less high-profile.
As we have seen in the defendants' briefs, the question of law is hammered. In the plaintiff's briefs we see arguments rooted in liberal social policy. One example, in the request for a new trial for compensatory damages, the claim is that the state agencies have already paid out double-digit millions of dollars for the childhood lead paint problem. So, both sides seem to be playing it appropriately.
Given the above, what should the parties anticipate? Well, the liberalism and insiderness favor the plaintiff. The respect for the question of law, not wanting to set radical new precedent, and the eagerness to get out of the national spotlight could be advantages for the defendants.
My hunch is that the defendants will not have the verdict overturned. They will be presented with the option of a new trial. That trial could be reconfigured to provide compensatory damages. Given the granting of a new trial, the abatement process would be put on indefinite hold. If any criticism is delivered implicitly, the derailing of the abatement train might be it for the trial court.
From my reading of Atlantic Richfield's arguments on successorship, the question of law and the facts seem to support the contention that ARCO didn't inherit ALPC's liabilities. I do not anticipate the acquittal verdict being overturned. That might be too radical for this court.
As for the validity of the contingency agreement between a government entity and private counsel, the court could follow California's example and recommend this issue be determined on a case-by-case basis. It could postpone a ruling until additional study is done. Here is the CA contingency ruling. Note especially the concurring opinion. Download H031540.pdf
Will the contempt convictions for the RI Attorney General Patrick Lynch and the fines he perceives as excessive be overturned? The plaintiff's series of detailed briefs make strong arguments that the contempt charges represented an over-reaction during the heat of the trial. I tend to think they will be overturned, with a warning to be more cautious in the future. Remember this isn't the Watergate Hearing.
Additional intelligence about the RI SC wanted. Please contact Mgenova981@aol.com.
Thank you, all the sources, each and every one.
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