Law And More

The [Changing] Business of Law - That's the story

An overeducated Baby Boomer I'm enough of an intellectual to find coverage about legal issues such as federal preemption compelling.  But, in these volatile economic times, the hot story in law has become the [changing] business of law. 

On this blog the posts on emerging business models, career paths, and reductions in force in law get the lion's share of the page views.  And THE ECONOMIST for two weeks running has major articles on aspects of this business.  This week THE ECONOMIST's focus is the billable hour which it doesn't view as quite the anchronism clients like Pfizer and Cisco might like to experience.

This is no surprise, of course.  Since the Industrial Revolution, business has attracted the best minds in journalism.  Now those minds will be engaged increasingly with the legal business part of capitalism.

"Litigation is less suited to fixed fees because of its unpredictability," THE ECONOMIST, 8/28/08

According to THE ECONOMIST, the billable hour might not be the killable hour.  In its August 28th article  that influential publication starts out with all the reasons top law firms are being pressured by clients for a fixed rate.  Then the article goes on to concede, "Litigation is less suited to fixed fees, however, because of its unpredictability." 

Amen, is what we lead paint watchers are thinking.  The nine-year Rhode Island lead paint public nuisance litigation could go on and on for years more.  Actually, November 1, 2005, when the second major trial associated with this litigation started, could become a national holiday in tort-reform circles.  On that date perhaps there could be a moment of silence before the opening bell at the New York Stock Exchange, honoring companies which did not surrender to jackpot justice.

Innocence in Greenwich? - Beefed-up PR Push Could Get Skakel conviction review

The high-profile Michael Skakel trial for the Greenwich, Connecticut murder of Martha Moxely, both in the courts of law and public opinion, may not be a done deal.  At least not if his brother Steven and his cousin Robert Kennedy Jr. are successful in their public relations push for a review or a new trial. 

Here I cover last night's dramatic developments in this communications campaign as an exclusive for Manhattan Institute's POINT OF LAW.  

OH AG Race - Dem candidate Cordray gets Obama endorsement at DNC

In this volatile election year, anything can and does happen.  After his presidential campaign was declared dying if not dead, Barck Obama pulled off a Lazarus at the DNC.  He currently leads his opponent John McCain in a number of polls.  That strength could diminish when the RNC happens this week. After all, there is enormous interest in GOP Vice President choice Sarah Palin. 

Where the Obama bounce leaves us lead paint watchers is not promising, at least not this Sunday morning.  Dem Ohio Attorney General candidate Richard Cordray attended the DNC.  At it he received Obama's endorsement.

Should the Obama momentum continue unabated, Cordray could ride the wave into office.  He's bound to continue with the the state's lead paint public nuisance litigation filed by former OH AG Marc Dann.  On August 25th, there was a hearing in federal court if that case would remain in that jurisdiction or be remanded back to state court.

The Palin Factor could create the same excitement at the GOP convention as the stagecraft and speeches had at the DNC.

RI Lead - Chaucerian Irony for Martin Clark

There's one legal writer up to the job of capturing the Chaucerian irony of the Rhode Island Lead Paint Public Nuisance saga - which, of course, isn't over yet.  He's Martin Clark, a Virginia circuit court judge and author of the just published novel "The Legal Limit."  Clark's two earlier novels are "The Many Aspects of Mobile Home Living" and "Plain Heathen Mischief."

Here is my book review of "The Legal Limit" on the Manhattan Institute's Point Of Law.  And, yes, it could be considered a beach read this last weekend of Summer 2008.

RI Lead - Not Writing that Book until Fat Lady Sings

If any of the legal players in the Rhode Island lead paint public nuisance drama will be writing a book on this landmark case it's smart to wait until the reimbursement phase is a wrap. The turmoil happening as a result of the defendants's motion for compensation of certain legal expenses could be a game-changer, at least in how the story is told.

An object lesson in the need to hold off running into print comes from the Delphi turnaround roller-coaster.  As Jeffrey McCracken and John D. Stoll report in today's THE WALL STREET JOURNAL, that turnout might not happen.  Instead, as they note, "Giant auto-parts maker Dephi Corp. is sliding deeper into trouble, raising doubts about its ability to survive as a stand-alone company."

Yet, last spring, with more than the usual fanfare, the controversial Chairman of Delphi Steve Miller published his book "The Turnaround Kid." Now, of course, we see that it was premature. There's more, though.  In it, Miller, who should have waited to get out of Dodge, spoke negatively about those who he still needs to help with a turnaround, if such is still possible. 

Why would a smart business leader - Miller was the financial brains during the Lee Iacocca-led turnaround of Chrysler - make these two significant mistakes?  I discussed this syndrome of executive myopia with a number of coaches.  The consensus is that most if not all folks at the top are insulated from reality by yes-people and, worse, sycophants. 

But there's a way out of this gilded cage.  Increasingly, outside advisers to the brass are telling them to keep asking themselves:  If I had no reputation, money and no goal invested in this venture, what decisions would I be making today?  Had Miller done this he might have realized it was reckless to be putting a book out there before the fat lady sings. 

This weekend leaders in all professions, be it business or law, might embark on some delusion-purging.  They can read "What Got You Here Won't Get You You There."  It doesn't miss a trick on how decision-makers tend to make lousy calls because they see cause and effect where there is only correlation, and a faulty one at that.  The eye-opener is by Marshall Goldsmith, who admits that many who claim they want to change won't.  They simply won't accept that past success can impede present accomplishments.

Disclosure: I wrote speeches for Miller and other members of Iacocca's turnaround team at Chrysler.

Talk vs. court & too much AG use of contingency - Neb AG Jon Bruning opines

Breaking rank with what seems to be the state attorney general party line, Nebraska AG Jon Bruning gave his opinion on two controversial issues surrounding activist AGs.

In an exclusive interview with Chris Rizo of LEGAL NEWSLINE, Bruning noted that there seemed to be way too many consumer protection lawsuits being filed. He sees it as more productive to sit down with companies and talk about how things could be done better.  That could resolve matters efficiently and effectively without going to court.

Bruning also warned against the widespread use by state AGs of contingency in cases. He noted, reports Rizo, "There are limited pieces where it [use of contingency agreements] can be useful, but I think it is incumbent on the attorney general to manage the fee structure very carefully and to ensure it is not a windfall.  Generally speaking, if something is important enough to us, we'll approach the Legislature and budget for the in-house attorneys."

In its recent ruling on the lead paint public nuisance case, the Rhode Island Supreme Court allowed contingency.  Here is that opinion Download statev.LeadIndustriesAssoc.,Inc..pdf. 

The California Supreme Court agreed to review the appeals court's ruling that contingency could be allowed in the Santa Clara lead paint public nuisance case.  The trial court had earlier rejected the use of contingency agreement when a government entity files a lawsuit.  The defendants filed for the review.  Here is the appeals court's decision Download H031540.PD.  Note especially the concurring opinion.

Brilliant Stagecraft - Obama Thursday Raises Bar for GOP next week

The most important speech of this tragic decade - as it will go down in history - came tonight from a man who those in the know said was finished as a candidate.  The stagecraft was brilliant. 

The crowd was first warmed up by a buttoned-down Republican tone and content vs. the usual kangaroo leaping emotions associated with Democrats. 

• The reserved Susan Eisenhower, a descendant of Ike, came forth to explain why she had renounced her lifelong GOP affiliation to become an Independent. 
• High-ranking military officers gathered on the stage with full military bearing telling about their support for Barack Obama as their commander-in-chief. 
• Next Joe Biden lent some heart by indicating he and Obama were there for the "millions of Americans who have been knocked down." 
• We then entered the heart of America through real-people delegates who told their stories simply.  Those stories were of doing just fine, then beginning eight years ago slowly and then quickly losing so much.  Among those real people was Barney Smith who said what will be the battle-cry of this campaign: America needs a President who takes care of Barney Smith before Smith Barney.

With that setting the stage, Barack Obama presented himself to the American people as a leader beyond his mere 47 years.  He spoke without hostility or hate about the Bush-McCain continuum. Rather than demonize them, Obama positioned that kind of mindset as just not getting it. Folks like those were and are too insulated by their wealth.

Finally, he gave us a roadmap of where he could and would take the country.  And that would be back from Toyota and Tata.  He would retool the U.S. auto industry to make fuel-efficient cars.  Detroit and the whole Midwest would get a new deal.  Corporations creating and keeping jobs in America would be rewarded and those shipping them overseas would be penalized.  Health insurance would be reconfigured to cover not just the super-well and well.  He mentioned how his mother, as she was dying from cancer, fretted about the medical bills.  Independence from foreign oil was going to happen within the next decade and $150 billion would be plowed into that.

And the money was coming from taking it back from government waste, closing corporate loopholes,  and taxes that we all will be paying again [maybe even happily] as we got back to work, to owning homes and to buying cars.

This didn't come across as radical.  We heard it as pure economic common sense.  After tonight, I assume the GOP leadership is back to the drawing board on how it will stage its own convention next week.  Obama Thursday changed everything. It also changed the opinion of those in the know that this man was finished as a candidate.  This man just got started.

"Put Barney Smith before Smith Barney" - Real People stealing our hearts & minds at DNC

Tonight, the Dems are pulling it together, and that "it" is our minds and hearts, however we're registered as voters.  And this is all happening even before Barack Obama speaks.

The cornerstone has been the tough decision for lifelong Republicans such as Susan Eisenhower, a descendant of Ike, to leave that mindset - and party.  Along with Eisenhower have been a group of delegates, total real people, who tell their story of making it in America and then seeing that turn to a handful of dust.  Real person Barney Smith from the Heartland summed that up when he declared that America needs a President who puts Barney Smith before Smith Barney.

Let's see the polls tomorrow.

How They Get Off Telling Us to "Do the Right Thing"

Everyone from the plaintiff bar to food marketers has been casting spells - or trying to - by telling us to "Do the Right Thing." 

That "Right Thing" might be to make the former lead paint companies pony up billions in Rhode Island to abate a problem which keeps becoming less of a problem.  Or it could be eating our oatmeal, as some geezer on a TV commercial shows us how dutifully he eats his.

Where does this power and authority come from for these folks to get off telling us what to do?  Answer: The tradition of natural law.  America's Founding Fathers were no slouches in using this concept to rally us to revolt against the British.  I discuss this and more on Pointoflaw.com  today as guestblogger of the week.  You can read that here. 

If you want to drill down deeper into the history of natural law you can read some background here and here.  But if you want to get really serious about your research, a wonderful [but pricey at $49.99] read is "Globalisation and the Western Legal Tradition: Recurring Patterns of Law and Authority" by University of Sydney Law Professor Dr. David B. Goldman. This might be a useful investment since the conversation is moving more and more toward comparative legal systems.