Law And More

Lead Paint Mentioned 2nd Night on "Letterman"

Either Dave Letterman is in a rut or lead paint has become a top-of-the-radar issue.  On his Friday night show he again listed lead paint in the Top Ten.

PLAIN DEALER Blogger Reginald Fields Views OH Supremes' Decision Positively

"Court gives voters a chance to decide consumer bill" is the headline THE PLAIN DEALER blogger Reginald Fields give his take on today's Ohio Supreme Court ruling on the law created by SB 117.  Fields notes, "The Ohio Supreme Court on Friday said when it overturned a gubernatorial veto last month, allowing a disputed bill [SB 117 which would prohibit the state's public nuisance law to be applied to situations such as the lead paint in pre-1978 buildings] to become law, it erred when it did not give voters time to mount a challenge to the newly minted statue."

The Court gave opponents of the law about 60 days to come up with enough names on a petition that could allow a voter referendum. 

Copy of the OH Supreme Court opinion available free from Mgenova981@aol.com.

OH Supreme's Ruling 8/31 - Cynic Reflects

"So essentially they [opponents of 117] need X amount of signatures to get it on the ballot before a specific date," observes a cynic, off the record.  "It wouldn't surprise me if Motley Fool Rice might develop a marketing plan for this.  Or opponents of 117 could lump lead paint into a public nuisance issue to get people to sign the petition.  It would seem that lead paint in Ohio is going to wind up in the Ohio Supreme in about 2013, which should keep the lawyers et al. gainfully employed for awhile."

Copy of OH Supremes 8/31 Ruling Available

Over this weekend I will be analyzing today's Ohio Supreme Court's ruling on giving the voters a possible shot at having their say on bill 117 which had become law.  Then I will post on this, especially the dissents, Sunday or Monday. Meanwhile those wanting a copy of the opinion can obtain it free by emailing me at Mgenova981@aol.com.

OH Supremes 4-3 Ruling on 117 - Judge J. Cupp's Dissent

In his dissent to today's Ohio Supreme Court's 4-3 opinion giving opponents of the 117 bill which became law time for a referendum, Justice J. Cupp notes that this decision sets a legal precedent which creates a new tool to delay a bill's effectiveness.

Here is an excerpt from Justice's Cupp's dissent:

"A majority of this court, in pursuit of the laudable goal of preserving a clear referendum opportunity unobscured by the cloud of litigation, creates a mechanism for delaying the constitutionality established effective date of a law in this 'unique case.'  To accomplish this result, the court majority inserts into the Ohio Constitution what is, in effect, a retroactive stay: a remedy that is previously unknown to the law."

Reader commment welcome. Please contact Mgenova981@aol.com.

OH Supremes Giving End Run to 117 Opponents - Inside Beltway Attorney Responds

Today, in a 4-3 opinion, the Ohio Supreme Court gave opponents of the law preventing public nuisance to be stretched to product liability cases about 60 days to challenge it through a referendum.  Here's the response, off the record, from an Inside the Beltway attorney:

"The real problem should it go on the ballot, and it would seem there is now ample opportunity afforded for a petition to be generated which will make it a referendum item, is that the part of the law which former Governor Taft opposed - limiting the liability of credit card companies - can be highlighted as a reason to vote against it going (or staying) in to law. 

"In other words, the matter of ensuring that product liability law not be undermined by claiming public nuisance, can be obscured by the other provisions tacked onto the measure to the advantage of those wishing to pursue extortion styled lawsuits against deep-pocket legal product manufacturers."

Reader comment wanted on this development in Ohio.  Please contact Mgenova981@aol.com.

OH Supreme Court Gives Brunner 90 Days from 8/1 to Challenge 117 in Referendum

Another stunner of a development in the volatile lead paint public nuisance saga. This time it's in the Buckeye State.

Today, the Ohio Supreme Court, in a 4-3 opinion, gave opponents of the law against stretching public nuisance to product liability cases 90 days from August 1 to attempt to challenge the measure in a referendum.  Such a challenge means that voters have 90 days from August 1, that is the date of the original OH Supremes ruling, to pursue the ballot challenge via filing petitions with OH Secretary of State Jennifer Brunner.

In a dissenting opinion, Justice Paul Pfeifer said that although opponents should have the right of referendum the clock on that should start today, not August 1.

How GOP Can Get Our Vote - What Women Want

GOP presidential candidates, even if Fred Thompson aka Arthur Branch jumps in the race, have a tough time against the now-ready-for-primetime Hillary.  On "Letterman," Hillary was relaxed, trimmer, stylish in her long-jacket pantsuit, energetic even stressing the term "stamina," funny, not-preachy and unselfconscious [vs. Obama when on the show].  All that smartest girl in the class and being in Bill's shadow is history.  Hillary has come into her own.  And to us women she looks very much like a candidate we can vote for.

Sensing this threat, Kimberley Strassel today publishes her well-thought out opinion piece in THE WALL STREET JOURNAL "What Women Want."  Strassel argues that the GOP does have a shot at getting the women's vote.  Actually they have more than a shot.  They have an advantage.  They can frame issues important to women in their traditional messages.  Right on the message machine, Strassel.

In particular, the GOP can promise us women that it will ensure our current economic and social gains and add to those through legislation, not litigation.  Legislation gives us a say, a voice in what goes down.  I would prefer my rights and opportunities shaped in the legislature, federal and state, than in the courts, especially the U.S. Supreme Court. 

Sure courts, as society's institutions, can be influenced by forces such as media, politics, grassroots pressure and tricks such as bringing down the servers with email from interest groups.  But the courts run by the law and by the lawyers.  The legislature is run by our elected representatives, therefore much closer to the levers of people power.

The GOP can demonstrate to us women how litigation has harmed us, directly and indirectly.  Regarding the latter, just think of the so-called "tort tax' that siphons much more from the economy each year than all the years of the Iraq war. That leaves less money for health care. 

Bringing this to an issue close to all women - children - the GOP can clearly document how all the lead paint public nuisance litigation has not helped one child.  Had the laws passed by the legislatures been enforced so landlords maintained the lead in their properties, lots of children would have avoided any possibility of being lead poisoned.

The effective push-back of tort reformers during the past several years has proved, yeah, conservative thinking not only works.  It can work for women and children.

Lead Paint Even Makes "Letterman" - The Implications of Going Primetime

You know something is totally mainstream when it makes the late night talk shows.  And toxic lead paint did just that tonight on "Letterman." In the list of the ten top things those on the show have learned in the last 14 years, number-nine was that all merchandise on the show contains toxic lead paint.

How can any jury separate out lead paint on the walls of some building constructed pre-1978, the lead paint that might have been on children's toys for how many years, and the lead that's been part of the mini-blinds for maybe just as long?  Surely, that has become a continuum in their minds: Lead as a hazard.  Everywhere.  Anywhere.  And maybe where we don't know yet.  Plus the "CSI Effect" has conditioned them to expect a high level of proof that the alleged lead poisoning came from the paint on that wall from that specific company and not from an Elmo toy some child living in public housing in St. Louis, Missouri sucked on. 

My hunch is that all this is going to put the brakes on the filing of new public nuisance lawsuits against the former lead paint companies.  Of course, there is also the matter of the victories from the Supreme Courts in Missouri, New Jersey and Ohio. That certainly is a deterrent. In addition and perhaps most importantly, there is bigger fish to fry. 

The Jones Day brochure "Practice Perspectives: Product Liability & Tort Litigation" notes that class-action lawsuits concerning global warming as well as the food and beverage industries can continue gaining momentum.  With the return of meltdowns in and the extreme volatility of financial markets there should also be a surge in the number of class-action securities suits. Happy days could be ahead for the plaintiff bar.

As for the lead paint public nuisance lawsuits already in the hopper - Rhode Island, Wisconsin, California - that will be a question mark.  The plaintiff bar such as law firm Motley Rice will continue to fight hard on that end.  It has to. Its brandname is at stake.  Also, for consistency sake, it must continue the rhetoric of championing the needs of lead-poisoned children.  So, I anticipate a long war.  As attorney spokesperson for the defendants Bonnie Campbell puts it, this litigation is "a process."  That process can continue all the way to the U.S. Supreme Court. 

Over this Labor Day holiday, tort reformers as well as the plaintiff bar can feel grateful that the American legal system has provided them with so many opportunities to earn a good living.  Law firms never had it so good.  Their biggest challenge is being able to recruit and retain talent.  And thanks to my blogging of litigation issues, new business keeps rolling in, both for journalistic and public-affairs assignments.  Happy Labor Day and hopefully we will all continue earning and learning via legal issues.   

Law - America's Greek Chorus

During both commercial and personal encounters, there it is: The Greek Chorus commenting on whether what's going down is legal or illegal, possible grounds for a law suit or at least a stern letter [@ $100 a pop] from my lawyer.  Woody Allen used the device of the Greek Chorus in a film to personify what was the reality of the situation, the dangers involved, and likely dire consequence.  We laughed, nervously. Now we listen to that American Greek Chorus pervading every aspect of every human dealing.  The Law As Greek Chorus has changed everything.

I began to notice this when I started writing about human-resources issues that could get companies in the legal soup.  There were the ADA, the ways to deal with substance abusers, and how to fire so to prevent later litigation.  But that Greek Chorus became a chip implanted in my brain during the four months of live-blogging the landmark Rhode Island Lead Paint Trial II.  Everything was law, with some human emotion thrown in [A useful refresher for attorneys on  emotion in human decision-making is "The Political Brain: The Role of Emotion in Deciding The Fate of The Nation" by Drew Westen]. 

After that four months on hard church-like pews in a Providence, RI court room, not surprisingly, both my commercial and personal transactions went much much better - e.g. profitable, respectful, less stressful. Just sprinkling my written and oral communications with the language of law leveled the playing field between me, the five-foot chubby female with a sort of goofy persona and the rest of the world.

I'm hardly alone, of course in recognizing and exploiting how law hovers as a real breathing presence in American society.  Thanks to Judge Judy, Greta, high-profile trials like O.J. and Michael Jackson, the "CSI" series, and the old "LA Law" days, we certainly know our law, or enough of it to scare the dickens out of those cartoon villains out there who want to trick, manipulate or cheat us.  Those villains often include ourselves.  The Greek Chorus, in the form of a colleague, pushed me away from my black-hearted intention to out another colleague by reminding me that if the masking attempt of concealing the identity was ham-handed, you know the rest.  I dropped the plan and just relished the fantasy.

Tort reform aside, the dominance of law in our lives probably has made us more civilized in our dealings with one another, in work and in daily lives.  I have refined my humor to more acceptable tones and topics for fear of being sued for sexual harassment or abusiveness.  That's a good thing, and I didn't have to invest about a thousand dollar dollars in one of those everyday-speaking seminars for professionals.

Perhaps the best coaching advice we can give our clients, colleagues and friends who keep screwing up their interactions is for them to sit through a few court trials.  They will learn caution of speech and of behavior.  Call the therapy Scared Legal.