Law And More

Denied One Appeal, Conrad Black Considers Another

Flamboyant characters like Conrad Black are as busy behind bars as they were out here.  After losing his recent appeal to have his fraud conviction tossed, Black could be considering another.

In the NEW YORK POST, Paul Tharp reports, "Black has two weeks to file a petition for a re-hearing, based on factual errors and other disputes in the government's three-year case."

We can probably assume that Dickie Scruggs, who is sentenced today, to be equally active on his motions for this and that while in prison.

Post- Lead Paint - Let's Kvetch

Smart, for the Rhode Island lead paint defendants to stick to the legal defense and to the white-bread rhetoric of points of law.  That has served them well, as we saw at the RI Supreme Court oral arguments.  And when this is all over, which eventually it will be and a victory for the defendants, the public relations statement on LeadLawSuits.com will salute the U.S. legal system.

But that will be the beginning for us lead paint watchers to kvetch.  That's the rye bread vs. the white bread way of addressing a wrong.  By kvetching we might prevent this kind of legal travesty from happening to another American industry.

Kvetching, a Yiddish art form of complaint, is so riveting - read that, effective - because it is so bold, obvious and persistent.  As Michael Wex explains in his book "Born To Kvetch," airing one's sense of outrage and hurts in this inappropriate [non-white bread] fashion gets attention and often rights wrongs because it somehow pushes institutions, systems, and individuals to do what they don't want to do.  In that, it has a real moral purpose.

Wex provides the example of a thirsty old man on the train.  He begins communicating his need for a drink of water to his seatmate in a socially appropriate manner.  Of course, that gets no results. Then, he starts kvetching, describing his thirsty state in great detail and railing against the world that is ignoring it.  Seatmate caves and brings not one but two cups of water.  The punch line, which is essential to the art form, then comes:  The old man rebukes the seatmate for being so tardy in providing the water, loudly exclaiming, "Oy, was I thirsty."

Sherwin-Williams, NL Industries, and Millennium have to engage in these theatrics.  If they're crafty and if they are skilled kvetchers they can even have joint ventures with public relations and lobbying firms.  That will establish kvetching services.  Those profit centers will probably have a much larger profit margins than products.  

What is an example of kvetching related to litigation? Bill Marler's testimony before Congress. This plaintiff attorney who specializes in food-borne diseases begs Congress to put him out of business. Here is an example of Marler's testimony Download testimonywaxmanfoodsafety.doc.  You can also find some solid kvetching scattered among his blogs.  In doing digital assignments for Marler Clark, I was stunned to find out that Bill Marler was born white bread.  I guess he learned kvetching as a second language.

God - In the courtrooms of RI

Part of the mystique of courtrooms is the symbolism and actual shows of power and authority.  In Rhode Island courtrooms, both Superior and Supreme, that symbolism includes invoking the name of God when legal proceedings begin and end.  A deputy of the court has that job.  In RI it's done with the quaint "Hear ye, hear ye."  All to the better for encouraging respect, perhaps even reverence, for the legal system.

But, the free thinker I am I wonder about this lack of separation of church and a state institution.  As a communicator who wants to continue to have access to the courts in RI, of course, I am not going to make an issue of this.  But, I wonder if anyone has.  Those with some intelligence on God in RI courtrooms can leave a comment or contact Mgenova981@aol.com.

RI SC - The Puzzle

It's Courtroom 101 for attorneys to drill down for intelligence about the presiding judge or justices.  What do those justices want and don't want in presentations, what kinds of arguments tend to be persuasive to them, and what's just not done? Some judges, such as the one presiding in "Thomas," even publish articles about how they want briefs composed.

No, I wasn't a presenter at the Rhode Island Supreme Court lead paint public nuisance oral arguments last Thursday.  But, of course, I did my due diligence on the court.  Attorneys who had argued before that court and those who were familiar with the Justices all told me that the court respects, maybe even reveres, questions of law.  For that they would not hesitate to turn over a trial court's ruling.  My sources also noted the liberal bent of the court, their liking a low profile, and their tendency not to break new ground.

Given that the plaintiff - the attorney general and those who are assisting with this lawsuit, ranging from assistant AGs to private law firm Motley Rice - resides right in the Ocean State, why were its presentations not on legal message?  Motley Rice attorney Fidelma Fitzpatrick, who was up as the first plaintiff presenter, began with a discussion of lead.  She was cut off by a Justice who declared that we all know that lead is bad and no one in the court disagrees with that.  The plaintiff presenters who followed weren't much on legal message either.  Jack McConnell, for example, alluded to that tired issue of advertising as a "promotional frenzy."

When the line of questioning and comments by the Justices left no ambiguity that the focus was on points of law, the plaintiff presenters still stuck to their set scripts.  There was no scrambling for course correction.  They could have simply ditched the prepared remarks and leaped into the law.  After all, they had those two trials down cold.

That's the puzzle: Why would a group with such high stakes behave in such a seeming self-defeating manner?  The defense presenters representing Sherwin-Williams, NL Industries and Millennium argued law.  So did the presenter for the acquitted Atlantic Richfield who was also the pointman on contingency.

Any insights welcome.  Please contact Mgenova981@aol.com.

Buddy Tops Arbitron Ratings

It was fully expected.  Buddy Cianci is the consummate performer so it is no newsflash that his radio talk show on WPRO-AM 630, from 10 AM-2PM, is at the top of the Arbitron ratings.

The format of the show includes Buddy, the former attorney, injecting informed legal opinion into hot issues; tons of call-ins, both from regulars and newbies; and insider intelligence about what's really happening [Buddy is well-connected].  This seems to combine the best of talk radio with Buddy's unique personality, ranging from his charisma to his bad-boy attitude.

In his profile of Buddy in the May issue SHOPInRI.com Joe Vileno depicts this former Providence, Rhode Island mayor and former jailbird as "everywhere."  In addition to his radio gig, Buddy also has a TV one.  He's Chief Political Analyst on Channel 6-ABC.  The area supermarkets are also stocked with The Mayor's Marinara Sauce.  Out there is a video documentary "Buddy: The Movie."  There's talk, says Vileno, about a full-length book and a feature movie.

We tend to love Buddy not primarily because he's a rebel and Americans love rebels.  We love Buddy mostly because he's Buddy.

RI SC Lead Orals - You asked me what I REALLY think

Those of us who acquired enhanced brandnames or lucrative accounts because of the Rhode Island lead paint public nuisance litigation better think about moving on to another reputational or financial sugar daddy.  You asked me what I REALLY think and here it is:

I thought I was hearing wrong when one the of Justices cut Motley Rice attorney Fidelma Fitzpatrick short when she was starting her usual rant about lead paint is bad.  I looked over to the man sitting next to me.  He was bug-eyed.  So, we both hadn't heard wrong.  It was going to get a lot more intense.

The smart four men they are - one justice recused - they were going to find a narrow passageway through the public nuisance and contingency messes through questions of law.  That's what they wanted.  The attorneys representing the defendants Sherwin-Williams, Millennium Holdings and NL Industries and acquitted Atlantic Richfield stuck to the points of law.  The plaintiff representatives did not.  They came prepared with stylized rhetoric and kept to the script. 

Clearly, the Four Horsemen didn't eagerly embrace this challenge of extricating the state from this man-made legal edifice.  I even wonder if they were grateful for those almost 75 amicus briefs that came in - and they had to read.  The lion's share came from non-profits supporting the plaintiff.

A group of Justices which receive an unwelcome challenge will not cut too much slack for the those who created the whole enchilada called the RI Lead Paint Case.  I expect them to come down hard not only on the plaintiff but also the el als. - private counsel contingency partner, trial judge, and maybe even that historian who pored over those thousands of documents.

No question this is the beginning of the end for lead paint public nuisance.  Other states are watching and they probably are blown away by today.  Also, if the Justices in their opinion gut the concept of public nuisance as applied to anything but the 12 dogs next door barking and crapping everywhere the golden age of public nuisance might never get to happen.

What will the ruling be?  Will it overturn the verdict?  Or will it be less radical and grant a new trial?  Yesterday I would have merely hoped for a new trial.  Today is a game-changer.  They may just let the defendants off the hook.  Then the defendants can decide if they want to legally push-back in any way.

As for contingency, I suspect the Justices will rule against that on the basis of violation of the separation of powers.  That will affect what's going on in Santa Clara, California.  So, contingency in mass tort could suffer a major hit.

The compensatory damages?  I say forget it.  The Justices wanted a fuller, more detailed accounting of all those supposed costs of dealing with lead paint.  They explicitly said that not all lead poisoning is from lead paint.  From what was said about the numbers the plaintiff does have, I don't think they will bear up under scrutiny.

Abatement? It should be ancient history.  I wonder if in their ruling, the Justices will stop that train.  It was explicitly asked if the process was still continuing, even in the face of this RI SC review.  The plaintiff attorney answered yes.  Wrong answer, methinks.

The "twist & spin the facts" will probably be referred to a disciplinary board to review both contempt convictions. I have a hunch that they will be overturned and Lynch's money returned.

All good things come to an end and that includes the fascinating saga of the lead paint public nuisance litigation.  I am considering moving on to interviewing ex-cons about re-entry which usually means recidivism.  In Jersey City, New Jersey, my grandfather and two uncles had all been guests of the state.  I am just figuring out now why they were so self-destructive and self-defeating.

Let us know what you intend to do with your career post-lead paint.  Please leave a comment or contact Mgenova981@aol.com.   

RI SC Lead Orals - The Show

As theatre, the Rhode Island Supreme Court lead paint oral arguments were relatively tame.

By time I arrived on the seventh floor of the state court house where the hearing was, the courtroom, which was small, was full.  The "overflow room" had just a few seats. 

The casual dress and youth in Overflow led me to think that many of the attendees were law students. Since there were also bored children I assumed that some couldn't find a sitter or intended this to be an [unwanted] educational experience.

Attorneys from Jones Day floated in and out of both rooms.  I recognized them from the trial.  Both public relations representatives from Prism Public Affairs were there. The Providence guy was in the courtroom and the Washington D.C. one in Overflow. As usual, both were circumspect.

Of course there were the usual suspects from media: AP's Eric Tucker and PROJO's Peter Lord.  To my surprise, though, there were empty seats at the section reserved for media.  In these recessionary times, perhaps media opted for the webcast.

The Chief Justice, who had a distinct Boston accent, seemed to enjoy joking around - a lot - with local attorney John Tarantino who represents ARCO.  Aside from that the proceeding, which lasted to about noon, was mostly business.

What impressed me, since I deconstruct the tone shifts from print to digital communications, was how conversational the hearing was.  It truly was a back-and-forth between the Justices and the presenters. The Ohio Supreme Court hearing on "117" was much more formal.  Through this conversational approach, the issues really got highlighted and hashed out.  You might say, it left no place to hide. 

OH AG Saga - Dann Didn't Play Ball

Had Ohio Attorney General Marc Dann played ball and resigned yesterday as was expected, perhaps he could have gone quietly into the night.  Not a chance of that now.  In what seems like a typical show of power - look what happens when you don't cooperate - those "in charge" set loose the investigators.  It's all theatre now.  Computers are being hauled off, employees' purses and bags checked, and the media covering every delicious bit of this. 

When the theatre part is over, Dann will probably be in more legal trouble than he ever considered possible.  Clearly, his successor will be extremely cooperative.

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 - The Heart of the Matter

The language of liberalism is the language of the plaintiff bar.  And the increasing number of ex-conservatives, 2nd-gen counterculture, and newly poor are all ears. 

That's why it might be wise for the defense attorneys to veer off legal message now and then. Defense attorneys are known to be hardwired to questions of law.  One of those now and thens might be the Rhode Island Supreme Court oral arguments re lead paint public nuisance litigation.

N.B. Defense attorneys for Sherwin-Williams, NL Industries, Millennium and Atlantic Richfield. Along with how the plaintiff allegedly violated First Amendment rights and how witness David Rosner allegedly misrepresented his scholarly objectivity, why can't there can liberal words and phrases such as:

• "The right thing to do"
• "Society must step up to the plate"
• "Deliver justice to the people, especially the children, of RI"
• "The potential of every child in this state."

Sure, defense attorney Don Scott won "City of Milwaukee" and "Thomas" via the law.  But that was Wisconsin, months ago before economic gloom hung over us like death.  The oral arguments are in RI, one of the most liberal and economically depressed in the nation. In a proceeding about the welfare of children, there needs to be the heart of the matter.