Law And More

Pyramiding of Plaintiffs - Where's My Spinach Salad

Yesterday, I was awe-struck by the entrepreneurial imagination of Reserve, Louisiana plaintiff lawyer Daniel E. Becnel. 

According to Peter Lattman who runs the law blog at THE WALL STREET JOURNAL, Becnel contacted Seattle law firm Marler Clark who is the prime mover in the E-coli Spinach lawsuits.  Hey, Becnel sort of said to the folks at Marler Clark, why restrict suits to just those made physically ill or who died as a result of the E-coli in the spinach. What about the restaurants which can't sell spinach salads and the agriculture industry which is also affected.  Since one of my Silicon Valley clients is witnessing the abrupt layoffs of the spinach farm workers and wept about it, I was very enthusiastic about Becnel's idea.

Was. But the tort reformer in me woke up this morning.  I had a question about what I would call the pyramiding of plaintiffs.  How far could this pyramid be build and how shaky would it make the American legal system?  Can I sue because I am denied my spinach salad?  As a result of not being able to select a spinach salad from the menu at Spago I am more likely to consume something that could be causal in bringing on Type-2 diabetes.

Okay, let's get less ridiculous.  The light cigarette mass tort could attract millions of former or current smokers of light cigarettes.  But, there could also be a pyramiding of plaintiffs.  Suppose I contend that I have suffered injury because my loved one and source of my financial support smoked light cigarettes, believing this was the safer course of action, and died of lung cancer?

Maybe Becnel is too clever by half.

"I understand how you feel" - Never Say That Again

Sometimes we say the wrong things.  The man of courage and deep convictions Rhode Island (RI) Justice Francis J. Darigan Jr. seemed to do that at Friday's hearing about the Station fire. 

In THE PROVIDENCE JOURNAL, Karen Lee Ziner reports that Justice Darigan told those sitting in the court room, "I understand how you feel."  There was an immediate outburst of emotion.  Those sitting in the room were primarily those affected by the fire that killed 100 in 2003.  Justice Darigan had accepted a plea deal with the 2 nightclub owners.  One would receive no jail time.  The other would serve about 4 years.

Of course, no one could understand what they felt.  And no one can truly understand what anyone feels, about anything.  Emotion is too complex and those experiencing those emotions are too idiosyncratic.  If we human kind did understand what others were feeling the lion's share of man-made catastrophes, ranging from war to divorce, probably wouldn't have occurred. Had our first parents Adam and Eve understood Cain's jealousy because they seemingly favored their other son Abel, mankind's first murder might have been prevented.

In RI history, that day of misunderstanding between Justice Darigan and those in the court can't be ignored.  Not only the legal community but all those in the front lines of maintaining human values in our society now know the phrase "I understand how you feel" is unacceptable - and inflicts so much pain.

Plaintiffs in E-Coli - Think Beyond Sick People to Injured Restaurants

An enterprising plaintiff attorney in Reserve, Louisiana is considering bringing the plaintiff suits in the E-coli spinach situation to a whole new level.  This should have been obvious to all us watchers of the legal scene.  Shame on us.

Plaintiff lawyer Daniel E. Becnel, reports Peter Lattman today in THE WALL STREET JOURNAL law blog, has contacted the small Seattle plaintiff law firm Marler Clark who quickly became a big player in E-coli spinach suits about thinking bigger.

Becnel recommends to the legal powers-that-be at Marler Clark expanding the notion of those who are or could be injured by the E-coli fall-out.  Restricting injury to physical sickness and death is way too narrow. 

Becnel, who probably had his share of pricey spinach salads in upscale restaurants on clients' expense accounts, told those at Marler Clark to consider the injury to the high-end eating establishments which charge about 20 bucks for a spinach salad.  The ingredients for a super-deluxe spinach salad, estimates Becnel, run about 1 buck.  He also recommended considering all the farmers and their workers hurt by this E-coli outbreak.

Becnel is on to something.  A client who lives in Carmel, California has been moved to tears by the idea that so many of those connected with agriculture in the nearby Salinas Valley will be out of work.  And given the fears surrounding spinach, they could be out there a long long time.

It's odd that the out-of-box thinkers at Marler Clark needed someone to call the full scope of this tragedy to their attention.  And we should have been more on the ball in noting this ourselves.

RI Justices Darigan and Silverstein - Not Afraid of Controversy

In terms of media attention, 2 of the most important legal proceedings recently have happened in Rhode Island (RI) and have been presided over by 2 state judges not afraid of controversy.  Those legal proceedings have been the decisions associated with the 2003 Station fire and the long-playing RI lead paint trial.  The justices have been Francis Darigan and Michael Silverstein.

Justice Darigan bucked the Attorney General of the state Patrick Lynch and plenty of public opinion to accept a plea deal in the criminal charges pertaining to the fire in which 100 people were killed.  I happen to agree with Justice Darigan that a plea deal spares the state further trauma.  But many others don't.

Judge Silverstein put his very individual imprint on the RI lead paint II.  His jury instructions interpreted RI law according to how he believed RI law should be interpreted. Based on my interviews with 4 of the 6 jurors, their verdict against 3 of the defendants and in favor of the state was based primarily on following those instructions to the letter and spirit of the law. The defense has filed motions for dismissal or a new trial partially on the basis of those instructions.  On August 30-31, Judge Silverstein presided over a hearing on those motions. 

Will these Justices stay with their controversial positions?  We're all wondering about that and that's why so much attention is focused on RI's legal scene.  Today's BOSTON GLOBE has an interesting article on Justice Darigan by Jonathan Saltzman and Brian Ballou.

Do Law Firms Need To Publish One Book Or More

Scandals aside (think Silicon Valley's one-time Teflon Larry), the legal marketplace is morphing quickly.

If DuPont is successful in outsourcing to Asia routine legal tasks, you know the rest.  Depending on how the deep pockets are handling the accounting of legal expenses, shareholders are bound to note this and demand cost-containment.  One cost-containment strategy could be more settlements, less litigation.  That means fewer billable hours.

So, would it pay off for a law firm to invest in publishing a book or more to enhance its brand name and create a pull force in its marketing?  That depends.

Doing a book right is time-intensive, even when an organization uses a ghostwriter such as myself.  There are endless meetings and phone calls and sleepless nights.  If a law firm is sitting pretty and doesn't see any major threats on the horizon, why bother, at least now.

Then there are all the logistical questions:

• What's the topic
• Self-publish or go through the traditional agent-publisher route
• Release online as a series, in addition to distributing the product in print form
• Cost of promotion or creating word-of-mouth
• Ability to manage controversy
• Willingness to get started right away on the next book, if this strategy works

My advice to law firms?  Think about publishing a book.  Although this is the Internet era, even marketing iconoclast Seth Godin concedes, a book creates unique space in the prospect's mind.  The impact is, at least initially, greater than that of articles and appearances in the media.

What The Tube Does To Lawyers

The jury is still out but if forced to predict how "Shark" on CBS will do I would give it the thumbs down. 

Maybe it's because we aging baby boomer tube watchers are so sophisticated about legal matters or maybe networks like CBS have just run out of mojo but all of the legal fictional programs seem so disappointing.  We have come a long way from "Perry Mason."  It takes a lot more than the blurting out of truth by a detective, as in last night's "Shark" episode, to make us regular viewers of the show.

What else bodes badly for "Shark?" The over-the-top beauty of the female legal players, the father-daughter conflict between Shark and his teenage child, the never-blink idealism, the lingering of the camera much too long on Shark's exaggerated facial expressions (e.g. great anger or great determination).  Unless fixes are made, I give the show, just like I give Katie on the CBS evening news, 6 more weeks.

Although "Boston Legal" started out strong, it soon jumped the shark (no pun intended). Denny Crane's Mad Cow prevented him from developing as a character.  Alan Shore seemed ready to start sorting out his demons but somehow never got to it. Shore's bullying tactics to help bring about justice were fascinating for a while but w/o the characters' moving away from the emotional mess they were to some new mess or perhaps enlightenment, a lot of us just gave up.

What the tube needs is to create a series based on the complex political, legal, social and scientific forces which brought about the lead-paint litigation. The series can use actual footage from, for example, the TV coverage of Judge Michael Silverstein's ruling against a mistrial in the Rhode Island (RI) lead paint trial (2005-2006).

We need a great fictional TV legal series.  Is the tube up to it?

HUD Funding for Lead Paint Abatement - A Tale of 2 New England Locations

No surprise since they're both based in New England where our nation started, Burlington, Vermont (VT) and Rhode Island (RI) have some of the oldest housing in America.  And those following the lead-paint litigation know that means the possibility of vestiges of lead paint in residences.

Well, Burlington put together a program for lead-paint abatement that had been recognized by the U.S. Conference of Mayors in 2005 as a best practice.  The lion's share of the funding for that has come from HUD. 

Now, just as in RI, and what may had pushed state leaders in RI to continue with the lead-paint litigation, HUD has notified Burlington that it won't continue funding. In RI, HUD told officials that the state programs would have to run on their own financial steam after a certain date. In Burlington, HUD denied the request for a $3 million grant.  According to BOSTON.COM, folks in Burlington were surprised and disappointed.  In 2003, HUD had given the city $1.3 million grant for lead abatement.

In RI, I am convinced that this sort of HUD cutback created the tipping point for the continuation of the long-running lead-paint litigation saga.  Could the cutback that just happened in Burlington also mobilize the town fathers to think: Sue the former lead-paint industry.  Will they, just like the town fathers in Columbus, Ohio, start interviewing plaintiff law firms about a possible suit?

Hurd Not Hurt By House - What Happens At Home

Live-blogging at the House hearing on Hewett-Packard's (H-P) pretexting scandal, THE WALL STREET JOURNAL reporter Peter Lattman observes, "Looks like Hurd won't be so much as scratched by today's hearing."  Seems Hurd provided sufficient signs of repentance w/o incriminating himself.  So, the House let him off the hook.

But, that doesn't mean Hurd won't escape the ax or a weird and perhaps disabling level of scrutiny at home, that is, at H-P. My hunch is that the powers-that-be who decide chief executive officers' fates waited to see what happened today.  Had Hurd been "scratched" in any way, he could have been sent packing with multi-million dollar severance.  But, no, things didn't get to that point.  So, at what point are they? 

From my knowledge about how corporate works, we can all assume those who determine Hurd's future are operating in a high stealth mode.  They might be sending smoke signals instead of using phones.

What are they being so secret about?  Primarily 3 things.

• They could be contacting the top executive search firms to find out if a replacement would be available. 
• Simultaneously they could be contacting the top public relations firms to assess the damage done to Hurd. 
• And, 3, they are consulting major shareholders or more likely major shareholders are already telling them what they want.

The next few weeks will be critical for Hurd.  If the crisis worsens, he might have to become a scapegoat.  H-P's turnaround is young and vulnerable.  Its momentum can't be slowed down by a scandal that won't go away.

If Hurd gets to stay, it might not be easy for him. His talent is execution and, instead of having the carte blanche he had to get H-P moving again, he may have to justify every strategy and tactic.  Under such circumstances the guy's confidence can go.  Or, it can grow.  There are executives who flourished under severe crisis.  The poster boy for that was, of course, Steve Jobs.

What If the Media Got Hold Of This - Patricia Dunn Should Have Asked

Media coverage is intense at the House hearing on on Hewlett-Packard (H-P) pretexting.  When former H-P chairman Patricia Dunn formulated her strategy for preventing/plugging leaks, did she consider this possibility?  She should have.  And since she received her undergraduate degree from University of California - Berkeley in journalism, she probably had an excellent grasp of what a ham-handed plan could cause in media fall-out.

So much of the conversation about this scandal has been focused on the legal and ethical components.  Yeah, count those in, big time.  But the public opinion ones are right on the same level of importance.  Think the stock price.  Think customer loyalty, particularly in this time of a turnaround for H-P.  Think executive flight from a company with a tainted reputation or maybe, if this situation comes to mirror Enron's, no executive will be able to pull off an exit.  H-P will be long a joke on Leno et al.

What was Dunn not thinking?  Plenty.  This is surprising because undergraduate learning and training tend to stay in our memory bank for ever.

What Might Have Been - Lead, Operating Systems

Along with the Rhode Island (RI) lead paint lawsuit, another long-running class action show is the one based in Iowa against Microsoft.  For about 6 years the plaintiff has been insisting that Microsoft has caused pain and suffering through its monopolistic practices.  This pain and suffering manifests itself in lost innovation in the marketplace. 

This issue of what might have been makes this suit as interesting as the RI lead paint saga.  Part of the arguments in the RI lead paint II was Patricia Nolan's contention that those with elevated levels of lead in their blood could be prevented from reaching their full potential.  Dr. Nolan didn't dig into that can of worms she opened, though, by listing other factors that also tend to limit potential. Then she could have pointed out that this factor was more significant than the others and could compound them. This would have strengthened her testimony.

Covered in FORBES and with a blurb on Pointoflaw.com, the Iowa imaginative pursuit is left over from the batch of antitrust suits against Microsoft.  Many of those Microsoft already settled. For this one it's requesting a dismissal.  What might computing have morphed into had Microsoft not dominated the marketplace?  Here you would need as expert witness a respected futurist in the field of information technology.

If this lawsuit is won by the plaintiff, clearly anyone with a resentment can file a complaint about how an individual's or a marketplace's what-could-have-been has been impaired.  What leaps to mind, since I have a whopper of a resentment against my alma mater (BA, 1967), is that I now realize and can document by 39.5 years post-graduate underachievement that that institution caused.  I could have been a contender in corporate life.

And there's no end to the suits by children against their parents, patients against therapists and clients against vendors like me.