Law And More

The Most Influential Attorneys - Who Never Lived

Perry Mason and Atticus Finch are two of the most influential attorneys - who never lived.  That is brought to our attention by a provocative new book by three off-beat thinkers: Allan Lazar, Dan Karlan and Jeremy Salter.  Their book is "101 most influential people who never lived."  The authors are interested in much more than the legal profession.  Seasonal worker Santa Claus, salesperson Willy Loman and single reporter Mary Richards also are highlighted.

So, that should get all us legal obsessives to thinking about other attorneys who never lived but reside in our national memory bank.  For me the most important bunch goes back to the 1986 "L.A. Law."  Those characters, whom we cared about and even loved, seem to have become the archetypes for many current fictional lawyers. 

For instance, I have no doubt that drop-dead gorgeous Arnie Becker is the platform on which "Boston Legal" Brad was constructed. Leland McKenzie becomes the earnest scold Paul.  Grace Van Owen becomes Denis.

But I am convinced that "Boston Legal" Alan Shore is a new creation in TV legal fiction.  His combination of ruthlessness and the hunger for connection is riveting.  The creators of "Shark" tried a mutation of that but it doesn't seem to be working. 

Other influential make-believe lawyers?  Scott Turrow has created a lot of good stories but the lawyers in them I have a hunch will outlive Turrow's present popularity. 

And maybe that brings us to the artistic question about why aren't there more fictional lawyers who stay in our minds and hearts for decade after decade?  We sure have no shortage of private eyes in that area of influentials, ranging from Sherlock Holmes and Sam Spade to the current crop of CSI investigators. Maybe that says something about the nature of law or the kind of human beings who become lawyers.

RI Lead Paint Follies - How Did This Happen?

How did this happen?  This is the question readers and I ask one another about the Rhode Island lead paint follies.  Now that the other shoe has dropped in that Judge Silverstein rejected all motions to toss the case or have a new trial, some readers have actually put together a scenario of how some of this could have been put into play.  Following is the first of the explanations, off-the-record:

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Long-term lead-paint watcher close to the Rhode Island situation and who has a law degree provides this deconstruction, off-the-record:

From what I have observed the likely course of events is that the private law firm of Motley Rice explored where to file a lawsuit against the former lead paint industry.  Not all states or cities are equally suited for this kind of litigation.  The legal scout probably, as with the tobacco litigation, sought out a venue where those in the leadership might have weighty political ambitions.  A plus would be if those ambitions required campaign contributions in order to be realized. 

The small, integrated state of Rhode Island probably looked promising.  But there was one major obstacle.  There is in the state the RI Statute of Repose.  That barred suing paint manufacturers since their products constituted improvements to real property to, I believe, an eight-year Statute of Repose.  The way around this obstacle was to seek out those with "deep pockets" which at one time promoted and sold lead pigment raw materials into the paint. As you might recall, the trial was really about lead pigments.

The next challenge was to navigate around no proof that those companies did at one time sell or promote lead-pigment products in RI.  Another challenge was to get around the reality that although there were laws on the books requiring property owners to maintain lead-safe dwellings those laws were not being enforced.  As those who followed the RI lead paint trial might recall, Brown University identified about 1200 properties and landlords where 95 percent of the lead-paint hazards existed in Providence, for example.

The jury during the trial did not have, I contend, a true understanding that this was a landlord problem and the solution was already in-place, but neglected, for dealing with it.  Enforcement could have been zealously done.

Well, all this came together in the jury instructions which did not require a finding of individual instances of lead hazard, that is, what could be traced back to a particular defendant.  Instead, there is the instruction about the "cumulative presence of lead which constitutes a public nuisance."

But all this will come apart if there is ever a remedy.  As we know, the case will be going to the RI Supreme Court and, if necessary after that, advance to a federal jurisdiction.  Any attempt to fashion a remedy will necessarily put the state's case in an automatic conundrum.  That's because it cannot merely put together a fund unlinked to the tens of thousands of dwellings which are presented as "an indivisible part" of the cumulative problem without being extra-judicial and arbitrary on its face. The Special Master had better be a Houdini to craft a remedy that can withstand even a glint of genuine judicial scrutiny.

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Other deconstructions of how the RI lead paint follies might have happened are welcome, on- or off-the-record.  Please contact me at Mgenova981@aol.com.

More Grounds To Advance to Federal Jurisdiction - RI Lead Paint Defendants

Yes, advancing to a federal jurisdiction is a a long way off for the Rhode Island lead paint defendants. The next stop is at the state supreme court.  But it's never too soon to review the grounds on which the defendants can move their case to a federal court if they don't secure what they want in a state one.

A brandname attorney, who works is Washington D.C., has opined on this situation.  This attorney has reviewed previous posts on this matter and intends the following comments to supplement what has already been said.

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Brandname Washington D.C. Attorney on advancing to federal jurisdiction, off-the-record:

This would be a long time off.  Bringing the case to the State Supreme Court probably will take up to a year-and-a-half.  After that, the defendants can advance in a federal jurisdiction based on a number of things.  Those include Dormant Commerce Clause and Talkings and Fundamental Due Process, even Equal Protection Arguments.

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Further legal commentary is welcome, on- or off-the-record. Please contact me at Mgenova981@aol.com

That Lead Industries Association Issue Can Bite Motley Rice/RI AG in the Rear

The combo of the Rhode Island Attorney General's office and the private law firm of Motley Rice went to great lengths in the RI lead paint trial to portray the defendants as a part of a conspiracy to suppress knowledge of the hazards of lead paint.  Those alleged miscreants supposedly accomplished all that through a trade association called the Lead Industries Association (LIA).  Well, Judge Michael Silverstein allowed the plaintiff lawyers to present their theory.  They he ruled that this LIA contention lacked evidence and told the jury to disregard the notion of a conspiracy.

Perhaps the RI AG office and the folks at Motley Rice figured that, even though the LIA idea was tossed, they still planted seeds in the minds of whomever that the lead industry had been negligent of the public interest.  That could be.  And that could eventually cost the two the whole enchilada.

As I blogged during the trial, it was the right of the lead paint industry to lobby through a trade association such as the LIA.  That's why trade associations, ranging from the American Medical Associations to the American Bar Association, exist and the members pony up their annual dues.

Well, legal experts are singling out this LIA issue as part of the basis for the defendants' winning their case at the level of the RI Supreme Court or the federal level.  In Pointoflaw.com, Walter Olson, for instance, points out this Constitutional issue of Freedom of Speech.  This matter was hammered over and over again by the defense lawyers during the actual trial and in the post-verdict motions.

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In the Pointoflaw.com commentary Olson cites the thinking of Hans Bader of the Competitive Enterprise Institute:

... The Lead Industries Association [issue] raises serious First Amendment problems.  The Noerr-Pennington immunity, a First Amendment doctrine recognized the both the U.S. Supreme Court and the California Supreme Court, immunizes companies and people from liability under the First Amendment for lobbying campaigns that would otherwise trigger liability.

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Long story short: The First Amendment protects membership in trade associations that engage in protected even if they also engage in unprotected speech.  Just on this issue, the defense legal teams have plenty to run with, all the way to the federal level.

What's Next After RI Supreme Court

Readers have been asking: If the defendants in the Rhode Island lead paint saga don't get what they want on the level of the state supreme court, what's next? 

Some legal sources tell me that the defense teams have not been slouches in lining up their ducks for a possible federal appeal.  They can present their case to a federal court on Constitutional issues such as Freedom of Speech and Due Process. 

The whole point of this, at least for those of us concerned about the stocks of the defendants' companies, is to avoid any pay-out of money.  Litigation can proceed for years.  That doesn't matter.  What does matter is the Show Me the Money.  So far, despite litigation that has been going on in RI since 1999, no money has been paid out by the defendants. And that's part of the reason why that the stock of Sherwin-Williams recovered so quickly after the early dip on Monday when the ruling about no dismissal/no new trial was issued by Judge Michael Silverstein. 

DuPont, which got off the hook at least in RI, is supposed to pay out $12 million in an agreement with the state of RI.  But since it's an agreement and not a formal legal settlement, who knows how much of that $12 million will be ponied up.

Legal experts who want to comment on- or off-the-record on the next step for the RI Lead Paint 3 after the RI Supreme Court - please contact me at Mgenova981@aol.com.

Why Lawyers, Non-Lawyers Love the Sullivan & Cromwell Gay Scandal

The train wreck at white-shoe law firm Sullivan & Cromwell is something none of us, attorney and non-attorney, can turn away from gawking at.  The deconstruction in NEW YORK Magazine of the career meltdown of Aaron Charney is long on detail but we are still left wanting more dirt.  Why this pull force towards the sad situation of a hyper-ambitious legal associate who winds up suing his employer for what he perceives as discrimination against gays?

My hunch is that it's just too puzzling how someone who makes all the right moves would suddenly ensure that he makes all the wrong ones.  What causes such an implosion?  Tragic flaw?  The pressure cooker of a work environment like that at Sullivan & Cromwell?  A resentment about not being fully appreciated for one's talents?  A ham-handed exit strategy to a very different career path?  Those possibilities, of course, rivet us.

But there's more.  In our capitalist system the game keeps going on because we are convinced that we are never successful enough and never have access to enough compensation and perks.  Therefore, how sweet it is to have this peekaroo into the professional lives of those who seem to be doing far better than us and to find out the ugly underbelly of it all.  Ah, we can relax with our pint of Ben & Jerry's and be grateful we have been spared that rat race.  Since it's that bad, all the better we never made it in there, right.

One more idea about this scandal: Our Girl Scout/Boy Scout sense of justice is being well served.  Those miscreant partners in Sullivan & Cromwell are being paraded before the rabble.  That one wades in a cesspool of bad language.  That other one was born to sadism.  And the crudity of referring to bodily waste that might have been transmitted to a legal document ..

Since Aaron Charney will never practice law again, he better look into the book and film opportunities for his wonderful tale of the search for dignity for gays - and for every other oppressed human being who is pulling down the big bucks in Manhattan.

Litigation Risk "largely dormant in minds of [Sherwin-Williams'] Investors"

The litigation risk that's an anathema to most corporations hasn't deep-sixed the stock of Sherwin-Williams, at least not for long. Yesterday, after the ruling was announced in Rhode Island denying Sherwin-Williams and two other defedants a dismissal or a new trial, the stock tanked but recovered later in the day.  And that's the way it has been since this current litigation mess started November 1, 2005.  Despite being convicted of substantially contributing to a public nuisance in RI February 22, 2006 and being sued by six cities in Ohio for the same charge, Sherwin-Williams has given its shareholders record stock prices.

Today, in THE PLAIN DEALER, Credit Suisse stock analyst Ivy Zelman notes that the ongoing litigation has been "largely dormant in the minds of investors" in Sherwin-Williams stock.  In that same article, the newspaper's reporter Peter Krouse discusses how the company hasn't lost its aura despite all the charges about its allegedly causing a public nuisance.

Sherwin-Williams and the other defendants NL Industries and Millennium Holdings have gone on record as saying that they are bringing the RI lead paint litigation to that state's Supreme Court.

Official Defense's Comment on RI Lead Paint Ruling

Spokesperson for the three defendants in the Rhode Island lead paint trial Bonnie Campbell has issued an extended response to Judge Michael Silverstein's ruling rejecting dismissal or a new trial.  That statement appears on LeadLawsuits.com.  On that website have been posted all the major announcements and public documents during and after the RI lead paint trial II.  Campbell, the former Attorney General of Iowa, provides the legal point of view on this matter.

Like all the other commentators who support tort reform, Campbell notes that the defendants - Sherwin-Williams, NL Industries and Millennium Holdings - welcome this opportunity to now bring their arguments to the RI Supreme Court for a "fresh" review. 

In addition, she rebuts several of Judge Silverstein's contentions such as this problem of lead paint is not a landlord problem and contends that any abatement process must involve the landlords.  She also points out the significant decline in the number of new cases of lead poisoning throughout RI, even though the housing stock is about 200 years old. 

PROVIDENCE JOURNAL'S Lord Reviews RI Lead Paint Ruling

THE PROVIDENCE JOURNAL'S Peter Lord has been covering the Rhode Island lead-paint litigation since the late 1990s.  Just after noon yesterday when Judge Silverstein's ruling came out denying dismissal or a new trial, Lord issued a short piece.  Later he produced a more in-depth review of the ruling and the reactions of the players.

In that more comprehensive coverage, Lord perhaps unintentionally hits upon some of the key problems of the original jury instructions and this current ruling. 

One of those is the lack of specific evidence that the defendants had any business activities involving lead paint or pigments in the state of RI.  In the jury instructions, Judge Silverstein said such evidence wasn't necessary.

Yet in the recent ruling, the Judge states that the testimony of Professor Rosner provided that evidence and the cross-examination by the defense didn't discredit it.  If such evidence wasn't required for a jury verdict on public nuisance, then why did Judge Silverstein even reach back to the Rosner testimony?  Incidentally, I was present in the court room during direct and cross and no, Rosner did not provide any concrete evidence of direct business transactions in RI by the defendants. 

I was probably not alone in being puzzled by all this.  On my communications blog, on which I covered the trial per se, there were a significant number of clicks on my posts dealing with the Rosner parts of the court room proceedings. Readers can retrieve them under "legal."

Another problem is that consistently during the trial the defendants, including Sherwin-Williams, were portrayed as not having done anything prior to the legal proceedings to take action to clean up the lead in housing.  As Lord points out, Sherwin-Williams had participated in settlement talks.  The Judge rejected this in Sherwin-Williams' motions because nothing had come of the talks.

There also has been the problem of the state attorneys arguing during the trial that progress on reducing blood lead levels among children had reached a plateau.  Lord points out that when the litigation began in 1999, that level among children entering kindergarten was 20 percent.  Last year it had declined to 8.4 percent.  An issue in the motions was that the state did not disclose the latest statistics [LESS Database] to the jury during the trial.  Those statistics show that there had been a more than 40 percent decline in one year in new cases of lead poisoning among children.

I bring all this up because readers, particularly security analysts, hedge fund managers and day traders, have been asking me if I am optimistic about the case going to the RI Supreme Court.  Of course, I am.  There will be a fresh look at all these puzzles, contradictions and seeming ignoring of the evidence that did exist in RI lead paint trial II which took place in RI Superior Court.

Macro View on RI Lead Paint Ruling

Plenty of comment has come in following the expected but still stunning ruling by Superior Court Michael Silverstein in the Rhode Island lead paint trial II.  One that seems to drill down into the macro tort issues associated with this whole public nuisance issue, the jury instructions, the verdict on February 22, 2006, and now the February 26, 2007 ruling by Judge Silverstein has been provided by Richard O. Faulk. 

Mr. Faulk leads the environmental practice group of Gardere Wynne Sewell LLP in Texas.  He is the author of "Getting the Lead Out: The Misuse of Public Nuisance Litigation By Public Authorities and Private Counsel" and "21 Toxics L. Rptr. (BNA) 1,071-98, 1,124-52, 1,172-96 (2006) (3-part series).

After the ruling was made public, Mr. Faulk issued a comprehensive statement to the media.  Below are excerpts from that statement:

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Excerpts from Richard Faulk's comments to media on RI lead paint ruling on February 26, 2007

In a ruling that dispensed with the most fundamental requirements of American tort law, a Rhode Island trial judge today upheld a prior jury [verdict] against manufacturers of lead paint and pigment. 

Incredibly, the ruling holds that merely manufacturing and marketing a product is sufficient to impose liability on a defendant - even in the absence of any evidence that a defendant's product produced harm to any person where the nuisance allegedly exists.  With this broad stroke, the court ruled that neither product identification nor evidence of specific injuries attributable to a particular defendant is necessary before a defendant is ordered to abate a nuisance.

As a result of this ruling - which is preliminary and not presently subject to appeal - the Rhode Island court has created an extraordinarily dangerous vehicle for lawsuit abuse - a tort where liability is based upon unidentified ills allegedly suffered by unidentified people caused by unidentified products in unidentified locations.

At least in Rhode Island, product liability law has been swallowed up by the amorphous concept of "public nuisance" - a development that should alert every industry to the dangerous alliance of public authorities and private counsel, and their opportunistic distortions of traditional legal principles.

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Copy of the RI lead paint ruling, the original jury instructions and the jury verdict form are available free by contacting me at mgenova981@aol.com.