Law And More

Post-RI SC Ruling - Have we seen the last of David Rosner/Will plaintiff sue this expert witness?

Post-Rhode Island Supreme ruling overturning verdict against defendants Sherwin-Williams, NL Industries, and Millennium Holdings, I gotta assume that expert witness David Rosner is a whole lot less marketable in lead paint public nuisance cases.

After all it was supposedly his review of those thousands of documents which provided the facts concerning the defendants' alleged knowledge of lead-paint hazards and their alleged commercial activities in Rhode Island.  Yet, in his opinion in the RI SC ruling, Chief Justice Frank J. Williams wrote:

"We conclude that the state has not and cannot allege any set of facts to support its public nuisance claim that would establish that defendants interfered with a public right or that defendants were in control of the lead pigment they, or their predecessors, manufactured at the time it caused harm to Rhode Island children."    [Here is that opinion in full Download statev.LeadIndustriesAssoc.,Inc..pdf.]

Both during RI lead paint trial II and in the numerous motions following, the defense attorneys documented that Rosner was not the objective historian he presented himself to be.  More importantly, his testimony about his research provided no factual links between alleged defendants' conduct and the alleged public nuisance.

Rosner and/or Gerald Markowitz the co-author of anti-corporate books such as "Deceit and Denial" have been expert witnesses in a number of other lead paint trials, including those two in Wisconsin.  The latter were won by the defendants.  I have to wonder if they will be in demand any longer.  The state of Ohio seems determined to go ahead with its lead paint public nuisance lawsuit.  There could also be one in Santa Clara, California.  Will Rosner and Markowitz be there or have we've seen the last of those two?

One more thing: Plaintiffs and defendants unhappy with trial outcomes have been suing their expert witnesses.  Will the Attorney General in RI Patrick Lynch file a lawsuit against Rosner and/or Markowitz?

RI SC Ruling - End of an era for a lot of things in Ocean State

The Rhode Island Supreme Court ruling overturning the verdict against the lead paint defendants Sherwin-Williams, NL Industries, and Millennium Holdings marked the end of an era for a lot of things. 

One was THE PROVIDENCE JOURNAL's coverage for almost a decade of this litigation.  Even in these downsized times in newsrooms it assigned Peter Lord to follow it, including every day during the four-month trial [November 1, 2005 - February 22, 2006] as well as key hearings such as the two-day one on the defendants appeal in August 2006 and the RI SC oral arguments on May 15, 2008. This was a real public service on the part of PROJO. 

And, it was probably combat duty for Lord who sat through Lead Paint Public Nuisance Trials I & II.  As many have commented the action and pace of those trials was right up there with watching paint dry. Now Lord can pursue full-time environmental reporting at PROJO. During RI Lead Paint II, he was working towards his Master's Degree in that field.  Probably his last big story on this litigation was filed today.  It runs about four pages - here  it is.

Another thing ending might be the aggressive activism of the Attorney General's office in RI.  Lord points out in today's article, "It took Attorney General Lynch some six hours before he was ready to talk about the ruling, which he said he disagreed with and found 'enormously disappointing.'"  It was with a lot of fanfare that Lynch's predecessor Sheldon Whitehouse, who has since become a U.S. Senator, launched this lawsuit that depended on the novel theory of public nuisance.  Even after that lawsuit ended in a mistrial, Lynch chose to resurrect the cause - in an equally high-profile manner.

That could have been, as it was for former AG Whitehouse as well as other state AGs ranging from Bill Clinton to Eliot Spitzer, a career stepping stone.  But it doesn't look like it will turn out that way.  PROJO has a section next to Lord's coverage in which readers can publish their opinion of the RI SC decision.  Over 100 have. A number of those comments are critical of Lynch.  Here are some.

• "Good!!"  The Attorney General is just trying to make a name for himself bringing these bogus charges. Lead paint was the world norm 40 and 60 years ago. No one knew the risks."

• This guy Lynch has to go.  He's nothing but a failure since the Station fire incident. ... All Lynch has done is waste people's time and money."

• "It's time to give businesses a chance to make a profit in Rhode Island.  AG Lynch was just looking to hoodwink companies for money for his supporters."

Another ending is the era of magical thinking.  That's an American disease, not just one pervasive in the Ocean State.  It went like this: We have a problem.  If we're clever enough we can solve it fast and free by pulling some rabbits out of hats.  What we're finding, whether we're moderate-income people who dreamed about buying a wonderful house or a state desperate to balance its budget, there are no more rabbits in U.S. hats.  Maybe the rabbits hightailed it to the EU, UK and the Far East where the legal systems don't injure business.

RI Lead Paint - The Morning After & Sweet Irony

In the bible for the digital age - "The Cluetrain Manifesto" - Doc Searls et al. claim this is the era of irony.  Maybe that's the only tone that helps us understand the chaos of change.  In the Chapter "Post-Apocalypso," the first sentence reads, "Irony is perhaps the most common mode of internet communications.  The Net didn't create the mentality, but it did come along just in time to give it new expression."

Therefore, it's no newsflash that lead paint watchers this morning after have nothing to say but what's ironic. We're more philosophical, in an ironic or distancing manner, than celebratory.  Let's look at some of the comemnts coming in.

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Ohio resident, off the record:

"Why did this happen and will it happen again?  Probably.  Would it help to print up baseball hats with the logo: No More RIs?"

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Wall Street guru, who also owns Sherwin-Williams' stock, off the record:

"We have to create our own sense of justice out of all this.  So, yeah, I'm all for the defendants Sherwin-Williams, NL Industries and Millennium Holdings going after Rhode Island for the legal expenses. If nothing else they should get those.  But the loss in value of the stock to retirees, employees, little old ladies and mutual funds was enormous if they sold the stock on the belief that the company was going to be taken for a loss because of this suit.  Seems to me that everyone knew this case was unwarrented as a matter of law.

I'm not an attorney but I've been around the block enough to smell liability surrounding the RI Attorney General."

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Recently retired Midwest attorney, off the record:

"First of all, I believe there will be less focus on lead paint lawsuits as the defendants have now developed a strong competency in defending these suits. Like they say, 'If it does not kill you, it makes you stronger.'

"Just imagine how much good could have come to communities if the resources poured into this trial would have been invested elsewhere.  I believe that the Rhode Island Supreme Court definitely got it right but I am saddened as the reality is that everyone is wounded from this trial.

"Least wounded is Ron Motley, but he probably is actually the most upset due to who he seems to be.  His motivations are his motivations and I can believe that he really believes that his firm is actually working for the greater good.  I perceive that the firm's brand has been damaged. Their prospective clients may note that, yes, the firm fights for them but that the quality of their legal help may be deficient. 

"Finally, this was hardly a win for the defendants.  Millions were spent seeking justice.  How much of that the defendants get back and when?  Good luck."

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Long Island writer off the record:

"There's a book in this.  A very dark comedy."

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Ironic observations welcome.  Please leave a comment or contact Mgenova981@aol.com.

Lerach - Caricature of 19th C British Artistocrat in India

Ever since his sentencing and then starting to serve that sentence Bill Learch has become a caricature.  He's gone from a respected or feared, depending on your point of view, securities plaintiff attorney to a guy who is comically clueless about his position. 

There he is, facing a two-year sentence, and he sends along his five-page essay vindicating himself to the media - in this case PORTFOLIO.  It is as out-of-touch as those missives we English majors had to read in 19th Century Lit which were penned by the British aristocracy in India.  There they were, in suits and hats, pontificating about a world already slipping from their hands.

In the slammer itself, "Sir" Lerach had his defense attorney send a rush order to the judge requesting better accommodations.  The argument was that the jailbird was a long-time alcoholic who might relapse in the joint unless he was re-located to the prison system's rehab facility.  The rush was on because a new recovery session was due to start in early July.  Guess Lerach didn't want to miss his first day in Club Rehab.  The judge said no. 

What will be next?  Maybe, like the British Man in India, Lerach will try to ensure formal dining, with cloth tablecloth, candles, and finger bowls.

Walter Olson takes on Lerach's argument in PORTFOLIO: Hey no one was harmed

Bill Lerach's five-page essay in the July PORTFOLIO is sure getting reaction.  In it, this current jailbird essentially argues, hey no one was harmed by his kickback schemes to plaintiffs.  He just stops short of claiming that what the heck, it was all in good fun and for a good cause - shareholders.

Among those pushing back is Manhattan Institute's Walter Olson.  PORTFOLIO invited Olson to submit a deconstruction of Lerach's contentions.  And that Olson did.  Like Martin Luther nailing his expose of Catholicism to the church door, Olson blows Lerach out of the illusion that no one was harmed.  Among the harms caused, says Olson, were:

• Unfairly and illegally business was denied to other competiting attornies
• Plaintiffs received lower recoveries than in cases without kickbacks [documented by research]
• Higher attorney fees [documented by research]
• Undercutting public confidence in a system which made Lerach personally rich.

Olson also notes that in his essay Lerach showed no remorse.  That's where Olson and I disagree.  I view expressions of remorse, real or feigned, as irrelevant.  I bet many of those shareholders in Lerach's class-action suits would agree with me.  All that counts is a plan to make amends in a concrete way, e.g. providing more money to those shareholders.  Feelings of remorse won't help those shareholders fill up their tanks with gas.

Olson's comments on tort reform are published regularly in his two blogs Overlawyered.com and Pointoflaw.com.

Judge rejects Lerach's request for Club Rehab - I'll Drink to That

Judge John Walter in LA said no to Bill Lerach's plea to be moved to a Club Rehab - that is a residential alcohol abuse treatment program for inmates.  In the motion requesting this, there was documentation from medical doctors of a more than two decade history of "severe alcoholism."  The motion argued about the possibility of relapse in prison.

A number of the comments coming in to Jamie Heller's coverage of this turn-down on THE WALL STREET JOURNAL Law Blog rejoice that he didn't pull off this "scam."  Some express their disappointment in this once-great attorney.  Others, such as myself, say: I drink to that.

Those up on the personality traits of alcoholics - e.g. self-pity - might want to read Lerach's five-page essay "I Am Guilty" in the July edition of PORTFOLIO.  Here you got it: The Con in Full.

Tort Reformers - Are we underestimating everyone, especially ourselves

Yesterday when I posted  "Stop Throwing Tomatoes at Plaintiff Bar," I figured I was deep-sixing my relationships with not only readers but the bigfoots in tort reform.  I was wrong.  For example, the U.S. Chamber of Commerce tort-reform site linked to it. Readers told me through page views and e-mails that they welcomed this additional perspective on tort reform. 

That might be a useful message for all us earnest tort reformers, that is not to underestimate the intelligence of those we wish to influence, especially ourselves.  Actually, this started dawning on me last Christmas season - with a little push from the Rhode Island Office of the Attorney General.  Some one there took me on.  That someone complained about how this blog tilted way too much to the defendants, both in the RI lead litigation and in just about every other kind of litigation. 

I listened.  I did a public mea culpa on the blog.  I started or, more accurately, I tried starting to tell the RI lead paint story and the story of where litigation is in in America in a more balanced way - and not how Fox defines "balance."  Sure, I lost some readers. But what was a stunner was that I gained tons more and from their emails and comments, they seemed and seem to be a better cut.

I throw out this challenge to the tort-reform movement:  What if we called a full moratorium on the rant.  What if we just described the strengths and weaknesses of both sides. My hunch: We would see more progress in authentic tort reform. 

"Too cute by half" is way fed judge describes Scruggs-Hood maneuver

The Murdoch WALL STREET JOURNAL is enjoying the fall of yet another one of All the King's Men.  In its opinion piece today, the editorial staff gleefully recounts how Alabama federal Judge William Acker described in court a Scruggs-Hood maneuver as "too cute by half."  The Hood part of that description is Mississippi Attorney General Jim Hood. 

The maneuver involved, reports THE WALL STREET JOURNAL:

"Judge Acker ordered Scruggs to surrender documents improperly obtained by two sisters, Cori and Kerri Rigsby, working for Scruggs as part of his litigation against State Farm insurance ... Scruggs handed the papers to Mr. Hood, claiming that the AG qualified as a 'law enforcement official.'"

Hood assesses the Judge as out of line and indicates he will file a motion for the Judge to change his conclusions.

"The snitch usually ends up in the ditch," Adams & Reese partner allegedly told James Perdiago

Compared to the current allegations of corruption within the legal industry, Dickie Scruggs' manipulations might seem pretty tame. 

For example, we have the gothic tale of Big Easy attorney James Perdigao who's battling a 59-count indictment which accuses him of lifting about $30 million from his former law firm Adams & Reese.  Well, he pushed back against his former employer. 

He has filed a 73-page complaint, reports Kit R. Roane in PORTFOLIO, charging Adams & Reese with civil racketeering.  We will get to some of the charges shortly.  One item he did not include but makes known is that allegedly a partner warned him, "The snitch usually ends up in the ditch."  Following that warning, Perdigao contends he was, says Roane, "attacked by gunfire at his residence."

Among the accusations in the complaint are:

• Partners overlooked a client's scheme to bribe a U.S. attorney
• A client who was a witness in a federal bribery trial of a former LA governor stuffed "a bag with cash that had been hidden under some tiles."
• A partner might have made an overture to plaintiff to go on a money drop with the promise that the latter would "have a multimillion-dollar client for life."

The law firm has responded that the plaintiff tends to blame it and the government for the criminal indictment he faces.  Watchers of this feud note that so far Perdigao does not seem to have a lot of evidence to back up his charges about his former employer.  However, given the layers of corruption in the Big Easy and the decades of grudges, some of that needed evidence might appear or be uncovered with just a bit of an incentive to dig or encourage testimony.  This could blow bigger and badder than All the King's Men.

The other flamer of a corruption saga is Columbia Law School professor William Simon's contention that both law firms and legal academics are selling the right opinions for the right price. Among those he points the finger at is Vinson & Elkins Law firm which saw no cause for concern in the Enron transaction that Sherron Watkins had questioned and Geoffrey Hazard, law professor at the University of Pennsylvania, who is a leading expert on ethics.  Simon's article on this "The Market for Bad Legal Advice" will be published in the STANFORD LAW REVIEW.

In the June 9th edition of FORTUNE, Roger Parloff covers this unusual act exposing alleged compromised ethics from the inside. Parloff has praise for this professor, noting:

"For what it's worth, I find Simon's analysis of what's wrong with legal ethics testimony to be not just dead-on, but cathartically so.  How gratifying to finally hear someone speak truth to power so bluntly, boldly, and persuasively."

Me - as with Deep Throat and a number of other whistle-blowers, I have concerns about motivation and awareness of the risks involved. 

Some contend motivation is irrelevant.  For example, Deep Throat might have had a private beef at not receiving the on-the-job recognition he craved.  The only thing relevant is the result.  If positive, the act of whistle-blowing is to be commended. That's their stance.  It isn't mine.  

Another concern I have, and perhaps it looms larger than motivation, is about the professional risks involved.  This is particularly pertinent for those who out alleged corruption while still on-the-job.  I blogged about a priest at St. John's Roman Catholic Church in Darien, Connecticut who blew the whistle on the pastor who, it turned out, embezzled funds and lived an outsized gay lifestyle.  I knew that this story would not have a happy ending for the underling. It didn't.  He eventually left the priesthood and the parish was in disarray.

At the time I posed this question to a number of ethics and organizational experts: What about these risks for the whistle-blower?

Among those I interviewed was a Harvard Business School MBA of Japanese heritage.  An organization man, he decried whistle-blowing.  If someone feels compelled to take that step in order to obey a higher moral code, then, said this source off the record, that person must be ready to accept the consequences.  They are usually severe.  They were at St. John's.  I wonder if they will be at Columbia Law School.

Disclosure: I grew up in Jersey City, New Jersey. There the snitch usually ends up in the ditch.

RI SC Lead Orals - "Twist & spin the facts"

There was actually a Marc Dann-type moment during today's Rhode island Supreme court lead paint public nuisance appeal.  It took place during the track on the contempt convictions and fines against RI Attorney General Patrick Lynch.

With bizarre situations like this, the discussion usually gets stuck on a key phrase or incident.  In the Dann scandal there were many more than one: PJs vs. sweats, doing a good job, come on over the condo for pizza. For Lynch it was the phrase "twist & spin the facts." It was, of course, repeated several times in the High Court.  History:  Lynch said it to a reporter at THE PROVIDENCE JOURNAL around the time of jury selection, about the folks at Millennium.  He also did a naughty post-verdict when there was supposed to be a gag order in-place. But that was no fun so it didn't come up.

Well, it seems that maybe Superior Court Justice Michael Silverstein who engineered the two convictions and the personal fines that the AG deems excessive acted inappropriately or in legal error.  What I got out of the discussion was that these matters should have been referred to a disciplinary board and hadn't.