Law And More

HUD Money - A Tale Of 2 States & Lead Abatement

Things are still cool in Kentucky (KY).  The HUD (U.S. Department of Housing and Urban Development) money is still flowing in for lead paint abatement.  In fact, as Sheryl Edelen reports in the COURIER-JOURNAL, in KY the city of Louisville has recently received a $2.7 million HUD grant.  That will abate lead paint in about 225 houses.  Earlier, 300 houses were taken care of. 

But things might not stay cool.  In Rhode Island (RI) the HUD money dried up.  HUD told the Department of Health and other parties in the lead-abatement loop that they would have to scout up their own money.  My theory has always been that it was that gap in funding - which could have been solved w/o radical measures - that resulted in RI lead paint trials I, II and maybe a III. This litigation in RI has been, yes, radical.  So radical that legal experts and Wall Street are watching it and wondering how can a state of the United States really pull something as wild as a public nuisance suit off?

Hopefully, before the HUD money disappears in KY, the state will search for other sources of funding before anyone and everyone panics. Panic is exactly what they seemed to do in RI and it may be something that the state is already regretting. RI watchers are finding that this kind of aberrant litigation has helped undermine the state's reputation as a good place to do business. KY can avoid the same economic-development hit.

How The Gods Play With Mortals - RI AG Lynch's Accomplishments

"Lynch said his proudest accomplishments are ... the precedent-setting public nuisance lawsuit filed against companies that once manufactured lead-based paint."  So reported Edward Fitzpatrick in THE PROVIDENCE JOURNAL's special campaign section.  Incumbent Rhode Island (RI) Patrick Lynch is running against William Harsch to keep his job.

That's how Greek tragedies start out: The smugness, the boast, the myopia.  Aristotle says that this unfolding of the crushing of hubris elicits pity and fear in the audience.  And, to my surprise, that's essentially what I feel for Lynch.  This issue of "the precedent-setting public nuisance lawsuit" will eventually go down in RI history as part of the chain of events which put the state in a downward spiral - and blacken Lynch's legacy.

For 1 thing, the RI lead paint follies are distracting the state leaders from other important matters, like the economy stupid.  Currently, RI is at the bottom of the list as a good place to do business.  Yeah, right at the bottom, #50.  And this is at a time when THE ECONOMIST predicts that the US is galloping into a whopper of a recession.  Think the housing bust.  Think the collapse of the American auto industry. Think that strain of the deficit.

But that's just the beginning.  What about the state's reputational capital or image as enlightened, progressive, yeah, cool.  Richard Florida, who advises states on how to keep and attract talent, says that kind of cool is needed.  In his breakthrough book "The Rise of the Creative Class," Florida explained how talent clusters in certain areas and not others.  Those areas where talent does cluster have reputations for being progressive.  The lead paint follies brand RI as anything but.

There's more.  Enough to make the gods increasingly angry.  Maybe our pity and fear should extend from Lynch to all of RI. 

Kozlowski's Hustle

Everything is a hustle, even more so in the slammer.  Dennis Kozlowski is helping his appeal of his 8-1/3rd to 25 sentence by helping his mates pass their GED.  This came out in THE WALL STREET JOURNAL blogger Peter Lattman's report today on K's 1st interview since his incarceration.  Seems K ain't doing much else except (magical thinking?) focusing on the appeal.  His wife dumped him, not only demanding a divorce but also more money, which K claims he doesn't have.  And King Lear-like, he seems to feel more sinned against than sinning. 

My hunch is that he should stop the self-pity and step up his good-works outreach. Jean Harris, busy-bee hustler, got off the hook for a worse crime (murder) by establishing a whole educational program for mothers behind bars.  Sure, her bad health figured in an early release but lots of folks are sick in prison, think John Gotti, and don't get sprung loose.   

My suggestion for K?  Establish an incubator for small businesses that can be run from prison.  This could stop the cycle of recidivism. Most cons wind up back in the joint because they don't know how to make a good living within the law.  Even if these particular businesses don't succeed, those running them would get down cold the fundamentals of how to run a legit operation.

Why am I so preoccupied with K as a guest of the state and how he configures/executes his hustle?  Because it could happen to mostly any one of us.  As a correctional guard who lived in my housing development told me, "We're all only 1 decision away from spending a long time in jail."  With great relish, he filled me in on myriad case histories.

Some days, like many of us, I just don't make good decisions.  Like this weekend when Mercury was in retrograde (the planets and the people are in chaos). It annoyed me that I had to cool my heels on line in an expensive "experiential" cosmetics boutique when the clerk, who I know for a fact doesn't earn commissions, was sucking up with the customers in front of me.  Maybe this was her path to a promotion?  Yeah, the head honcho of moisturizing creams.  Whatever. 

I wanted to glide towards the door and out.  Screw them by not paying.  It seemed to make emotional sense.  Capitalist sense too since they should have more staff on a weekend.  Why I didn't make the wrong decision, which would have been calculated as a felony, is an unknown.

So, it's not infrequent that I ponder how I would hustle in the joint.  My latest plan is to teach my mates blogging.  Of course, that means that I would have to get us plenty of computers.  How to do that?  I would contact the MIT Media Lab for Nicholas Negroponte to donate, not sell us, a whole bunch of those $100 laptops.  In my head this all works out dandy.

In reality, just as in the reality of trying to convince Fortune 100 clients to blog, it might not work well or at all.  Maybe no one wants to blog or sees any marketable skill coming from it.  The laptops came in and the warden is all over me for having to store this equipment that isn't being used and having to deal with the media about why it isn't being used.

Perhaps Harris lucked out: Fortunate timing of the combo of a good program, bad health.  Perhaps potential miscreants like myself better not count on that sort of luck.  I wonder if K figured he could fare better in the slammer than has happened. It could be that he will wind up not beating the prison system, no matter what hustle he puts together. 

When - Judge Silverstein's Decision in RI Lead Paint Motions

"It will probably be this year."  That's what a solid source opines about when Judge Michael Silverstein will decide on the defense's motions for a dismissal or new trial in the Rhode Island (RI) lead paint trial.  "But," the source adds, "it probably won't be until late November or December."  According to this source, speculation among all interested parties as well as RI lead paint watchers is intense regarding the when.

Now I'll pile on my speculation and it's about the stock. My hunch is that no matter what Judge Silverstein decides, the impact on the stock of the defendant companies will be minimal, at least long-term.  Wall Street has factored in that the litigation process in RI will be ongoing.  Clearly, even if the Judge rules against a dismissal or new trial, the defendants are geared up to take the case to the RI Supreme Court.  That's why they requested that the Judge review and comment on all the motions, not just the ones on which his overall decision will be based.  And, that's what could be taking so much time.

Also, Sherwin-Williams' pre-emptive move in Columbus, Ohio (OH) federal court has also already sent a message to Wall Street that it has gone on the offensive.  That lawsuit was filed in early October against cities in OH such as Columbus which were considering suing Sherwin-Williams about lead paint, cities such as East Cleveland and Toledo which had already done so, and cities which might do so in the future (Akron sued after this federal suit was filed).  Following this filing, the city of Columbus then asked the federal court not to allow this lawsuit by Sherwin-Williams.

Since Wall Street doesn't like uncertainty, yes, we could see a bounce in the defendant companies' stock when Judge Silverstein makes his decision.  If the decision is a dismissal or new trial, it could be a significant bounce.  But that's just a temporary adjustment, as the market reacts.  Overall, both the aggressive push-back of the 3 defendants post-verdict and Sherwin-Williams' later federal suit have determined the direction of the stock's movements.

Casting Spells - Wizards of Law

The legal head honchos at DuPont who are outsourcing document work to Asia seem to think that law is a commodity.  That should worry those in the legal profession who don't know how to make their brand of law performance art and literary brilliance.  That ability which keeps bringing in top-tier assignments will increasingly be called "Casting Spells."

That phrase is being made famous by play on the title of Daniel C. Dennett's "Breaking the Spell." A Tufts professor, Dennett is a leader in the latest movement to drill down to the question of whether there is a supreme being.  That movement has stirred up a lot of interest in voodoo topics such as how some people or forces manage to cast spells. 

In the court room, we've witnessed defense lawyers Johnnie Cochran (O.J. Simpson), Alan Dershowitz (Von Bulow), and John Tarantino (RI Lead Paint II) cast spells.  In their briefs, defense attorney such as Michael Nilan (example of brief available free from mgenova981@aol.com) create narratives that rivet readers.

So, why can some attorneys do this and keep thriving and others fret about seeing their $50,000 practices shrinking?  Here's what I've observed about how spells are cast and stories suck up all the mental oxygen.

• Legal expertise is just the price of entry.  Yes, it counts and points of law do win motions and even trials.  But the mother lode is the ability to define the situation vs allowing someone else or some institution to do that.  That's the oldest definition of power.  And that power is taken, not given.  Takers get control of the emotional sets in the audience, all of them.  Usually, they are diverse: The judge's, the jury's, the opposition's, the media's.  This is done by being able to read people and then mirroring their neurons with one's own words, body language, facial gestures.  Yeah, make sure we give something to everyone.  A helpful read on this is Daniel Goleman's "Social Intelligence."

• Course correction is imperative.  Everything changes. That means that no winning formulas or presentation skills which led to homeruns in the past will be hits in the present or future.  In RI Lead Paint II, plaintiff attorney Jack McConnell's reference to his mother's telling him and his brothers that if they made a mess they had to clean it up set an Everyman tone in the opening statement. But, this folksiness later in the trial seemed to detract/distract from his presence. During that same trial, Tarantino geared his presentation to the mood in the court room.  That's how he was able to take control of or define the situation.  Since that trial Motley Law firm attorney Fidelma Fitzpatrick seemed to have learned how to play to an audience in real time, e.g. her performance during the 8/30-31 RI Lead Paint II motion hearings was excellent.

• Self-consciousness, just as in athletics, causes choking in legal proceedings.  Lawyers who are aware of themselves presenting rather than in the moment deliver brilliant words which no one takes in.  Dershowitz's genius is that he is always out there rather than inside himself.   

• Hold onto space.  During the 8/30-31 RI Lead Paint II hearing Judge Michael Silverstein attempted to take over the space with his continual humor.  Defense attorneys such as Nilan who resisted this pull force maintained their ability to cast a spell.

How can attorneys become better wizards?  A useful and cheap ($6.95) read is from Shambhala books.  It's Pema Chodron's "Awakening Loving-Kindness."  Another cheap read is available as a used book from Amazon.com.  It's Natalie Goldberg's "Writing Down the Bones." Also, download Steve Jobs' speech "Stay Hungry, Stay Foolish" and internalize its wisdom and cadences.

Why Cities/States Make Lousy Lead-Paint Plaintiffs

My post "Are Cities/States Wrong Plaintiffs in Lead Paint Suits" is stirring up a hornet's nest - and on a Saturday night when we should be getting into trouble. Here are some of the responses, off the record, of course.

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The real issue why cities/states have not fared well in these public nuisance mass torts is that they continue to ignore pressing the landlord issue.  In many areas, the addresses of those poorly maintained properties are known and the laws are in-place to have the lead-safe work done. At some level, everyone knows this and knows it's the long, expensive way to sue the former lead paint companies to fix this.  So, nothing really gets done in terms of litigation.

Take this out of the court houses and the problem will be addressed quickly and cost-efficiently.

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Girl, wealthy parents won't take up the cause of what they see as a poverty issue.  The reality is, though, that lead poisoning, especially from lead pipes, is an equal-opportunity disease.  Because this is perceived as only affecting the poor (read: powerless) cities/states don't get much support on pressing these suits.

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It's the economy, stupid.  The community will is not behind an issue like lead paint which seems to be well under control.  The issue is jobs.  In the 2 states which have gone high-profile in the lead-paint litigation front - Ohio & Rhode Island - the economic climate is bad and getting worse.

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Any other comments are welcome (mgenova981@aol.com), on or off the record.

They Prayed For Us - Sue 'Em

The next type of mass tort could be filed by those of us who got prayed for, with or w/o our permission.  The time is exactly right for that kind of litigation.  We're living in a hybrid era of both a fascination with the paranormal (NEWSWEEK, 10/16/06, p 13)and with the emergence of the new atheism movement. 

So, this class action suit can be played out in a variety of ways.  And, believe me, it will make far better copy in the media than lead paint or french fries.

First, the voodoo angles. The research on the effects of prayer is less definitive than was once thought.  For example, there seems to be no consensus in the research that those prayed for, whether they knew it or not, agreed to it or not, recovered more quickly or at all than those in the control group. 

So, the door is wide open to claim that we who were prayed for got worse.  Or our families can claim likewise if we croak.  We can also pursue a breach of contract.  We asked the Sisters of Many Many Sorrows to pray for us in 5 novenas.  Although the novenas were said, we question the quality of the whole prayer system in that organization.  You got the idea.

I have a possible case in mind.  An evangelical alternative religious group aggressively seeks out people and causes to pray for.  Yes, members of the group first ask our permission.  But that doesn't really get them off the litigation hook, does it.  We the prayed for might not welcome the outcome (God's will be done, is one of the options the group seeks for us the prayed-for) or we may feel that others received a better brand of prayer, for X or Y reason, than we received.  My advice to do-gooders : Don't do any outreach with the prayer service.

On the atheist front.  Given that many of the leaders in the new atheism movement are highly educated and self-righteous, the odds are excellent they will create a test class action suit to bring their issues high profile. 

For example, one of those head honchos is Richard Dawkins of the University of Oxford. His latest book "The God Delusion" is receiving plenty of attention.  And, clearly these boys - yes, they're mostly male - seem to love the attention of pushing hard on this last taboo in our society. In "Breaking The Spell: Religion As A Natural Phenomenon," Tufts professor Daniel C. Dennett explains how deep-rooted belief in a higher power is in our culture.

So, why not play.  These leaders have the resources to stir up a litigation hornet's nest.  For instance, they can round up a bunch of us religion & its discontents to file a class action suit against the individuals (the estate of my late parents) and organizations (the Catholic college I attended)  which imposed, w/o our consent, their prayers on us.  Sure, you can even mix in a little voodoo and further claim that such praying caused us harm.  We can all do the mandatory shrink visits to document the emotional damage.

And, yes, I have a case in mind.  Members of a self-help group told me that they were praying that I would see the light on a certain issue.  I had left the group because I found its process bizarre and, yeah, harmful to me.  I thought that was that.  It wasn't.  There was a voodoo prayer trail chasing after me.  If the group wouldn't let me out of their prayers I'm sure that there were also a number of others held hostage to this field of force.

A more mundane type mass tort would be claims of damage (not getting hired, not getting a fair trial, receiving subpar care in a religious hospital) because of atheism.

I'm not being hyperbolic about the potential of this kind of new mass tort.  In his WIRED article "The Church of the Non-Believers," Gary Wolf opines that open admission of being an atheist will be logical next step in the rights movement that led to the acceptance of gays.  Not only will atheists come out in our God-centric culture.  They will be outed, perhaps in court.

Are Cities/States Wrong Plaintiffs in Lead Paint Suits

The lion's share of plaintiffs in public nuisance suits (read: lead paint) are cities and states.  Maybe that's no way to win, at least not big. 

St. John's University Law School professor Michael Perino did a study of settlements in securities class action suits 1984-2004.  As Nathan Koppel reports on THE WALL STREET JOURNAL law blog and as we can read in the study, Perino found that when public pension funds are the lead plaintiff, settlements are higher.  In addition, legal fees are lower.

The key reason for this, Perino opines, may be that attorneys hustle more with pension funds monitoring them.  With their wealth and power, pension funds keep everyone on their toes.  As we know, the pension funds have been major game-changers in corporate governance.

In public nuisance suits regarding lead paint the quality of lawyering on the part of the plaintiff has been, many agree, lackluster.  Just look at Rhode Island.  The first trial ended in a mistrial.  The second trial had so many plaintiff-lawyer errors in it that (see defendant motions) the verdict in favor of the state will most likely be overturned by a dismissal or new trial. The smart money is betting on no money ever coming to Rhode Island from these lawsuits.  In other cities and states these public nuisance suits aren't having excellent plaintiff outcomes either.

Maybe having the city or the state as the lead or sole plaintiff in a public nuisance class action suit isn't the way to go.  A more demanding and successful group of plaintiffs might be wealthy parents who are taking on the cause or major real estate owners. 

People Vs. RI - A Modest Proposal, Not Totally Swiftian

A Rhode Island (RI) lead paint follies watcher has a modest proposal, not made in a totally Jonathan Swift satiric way.  It's off the record and here it goes.

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The people of RI might sue RI.  The state itself had been a partner with the former paint companies - NL Industries, Millennium Holdings, Sherwin-Williams - in causing that alleged public nuisance.  Look at it this way. One of the those defendants Sherwin-Williams halted the use of lead as a pigment in its paint in 1938.  Yet, the state of RI, right up to the 1960s, specified the use of lead-based paints on projects requiring state government and federal funding. 

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Responses welcome, on or off the record.

OH, RI - As Lead Paint Follies Play On, Biz Climate Tanks

Ohio and Rhode Island are the 2 states become infamous for their lead paint follies. 

For example, in OH, the city of Akron, which has spent a relative pittance on lead-paint abatement, has been a busy bee, suing the former lead paint companies for a few extra bucks.  And Akron's neighbor the city of Columbus has marched into federal court to sue Sherwin-Williams for suing it.  In RI, since the late 1990s, there have been the RI lead lead paint I & II.  Depending on Judge Michael Silverstein's ruling, there could well be the RI lead paint III or a RI Supreme Court lead paint I.

Given these litigation distractions for both city and state government, it's no surprise that OH and RI have fallen to the bottom of the heap as good places to do business. Breaking news: The Tax Foundation just put out its 2007 State Business Climate Index.

According to that Index, OH ranked 49th and RI ranked 50th as the worst states for a whole range of taxes, be they corporate, sales, property, unemployment or excise taxes.  On the other hand, those states such as Wyoming which rank high in the Tax Foundation survey, reports Teresa Dixon Murray at THE PLAIN DEALER, "are among those experiencing the most economic growth."

Litigation run amok, as it has in OH and RI, is a sign of overall poor management in the cities and the states.  That scares the dickens out of business.  This always was true.  It's more true now. Business, not only in the U.S. but globally, now factors in litigation risk as a key variable to consider when re-locating or expanding.  If the city and state fathers can't control the trial attorneys, then the odds are that lots of other things will also be out of control. 

Funny, but this issue of litigation run amok hasn't been high profile during the election campaigns in OH or RI.  Is it too hot a potato?