Overlawyered letters

It's the end of the legislative session in Wisconsin, and bills are being sent fast and furious to Gov. Jim Doyle for his signature. There are two that caught my interest, as the combination of positions that Gov. Doyle takes on them would appear to make sense only if you're a plaintiff's lawyer.

Firstly, he approved a bill that would ban juries from counting the failure to wear a helmet as contributory negligence (thus reducing damages) in the event of a motorcycle, ATV, or snowmobile accident. (See Tom Sheehan, "Doyle Signs Helmet Bill Into Law", Wisconsin State Journal, Mar. 16). The relevant quote: "'What we're saying in Wisconsin is, if you do something that is in compliance with the law, under this bill it's not going to be held against you. I think juries can decide what the damages are they want to award,' Doyle said after signing Senate Bill 223."

He then turned around and vetoed a law that would have protected resturants and food producers from obesity lawsuits. (See "Gov To Veto Obese-lawsuit Ban ", Capital Times, recent undated). Relevant quote: "'I think the courts can adequately sort these kind of lawsuits out,' he said Monday."

It doesn't take a whack in the head (with helmet or without) to realize who some of his biggest campaign contributors have been. -- Dan Wendlick, Madison, Wis.

Posted by Walter Olson at 11:18 PM | Permalink | TrackBacks (3)

Have you seen the settlement in Lamb v. Wells Fargo, as described at this site? I learned about it in an insert with my credit card bill.

I get: one month -- ONE -- of free internet bill pay. That's not even worth signing up for. The supposed cost of this is $3.5M. I'd like to know how that was calculated. My guess would be that hardly anyone will sign up for just a month and the cost will be very low. Of course, a certain number of people will stay on with the service after the first month, so the net cost to Wells will be even lower.

"Charities" get: $3.25M. There are some worthy causes on this list. There are also some litigious advocacy groups who would more aptly be characterized as political operations than charities. Regardless, there is no reason at all why paying off "charities" should be considered a means of compensating class members who suffered damages as a result of Wells' actions.

And the attorneys get: "up to" $2.85M. Not bad for a firm with only three attorneys. I wonder what this works out to per hour. It happens that this is almost exactly 30% of the total.

So Wells pays off the "charities," perhaps getting a nice tax deduction, and offers ONE month of free internet bill pay. And the lawyers get almost $3M.

Does anyone ever fight these things? Is it worthwhile? -- Alan Frame, San Francisco

Yes, occasionally someone does fight them. In this case the deadline for objections and opt-outs is Jun. 30. A couple of further comments: first, the rationale of the settlement is to punish (there is no other word) Wells Fargo for sharing certain information about its customers with outside marketers over a 6 year period, to the supposed detriment of their privacy. Second, existing users of the online bill-pay service will get a free month, which probably is a genuine benefit to them, at least.

Posted by Walter Olson at 10:57 PM | Permalink | Comments (4)

A recent news report in the Houston Chronicle (Andrew Tilghman, "Lawsuit juries harder to find", Feb. 14) suggested that jurors are now arriving at the courthouse predisposed against lawsuits, to the point where judges are finding it hard to impanel unbiased juries. An excerpt:

When state District Judge Elizabeth Ray summoned a pool of 93 prospective jurors to her Houston court last week, she thought that would be plenty from which to find an impartial group of 12. But the case was the kind that has drawn increasingly strong reactions in recent years: a multimillion-dollar lawsuit by a terminally ill woman against the drug maker she blames for her disease. In a scene that has become commonplace in Harris County courts, dozens of people in the jury pool said, in effect, that they simply could not obey Texas law. "They stood and said, `I hate lawsuits, I hate plaintiffs' lawyers and I hate plaintiffs, and I don't think they should even be at the courthouse.' " Ray said. "I thought, `Uh-oh. I can't have that guy because he can't be fair.' " More than 40 people told the judge they had no patience for claims of pain, suffering and mental anguish in such cases. No matter what specifics might be revealed in the trial, they said, they could not award punitive damages. In lawyers' lingo, they "busted the panel," meaning Ray disqualified so many people that she had to summon a new pool of potential jurors.

Reaction? -- Edward Holman, Dallas, Texas

The story does not give enough detail to know for sure what is causing jurors to be excluded, but it implies that this particular judge is keeping jurors off who are skeptical of pain and suffering or punitive damages claims. ("I refuse to ever award punitive damages" is cause to exclude a juror for bias; "I believe punitive damages are awarded too often" is not, if the juror agrees to follow the judge's instructions.) Judges have a lot of discretion to shape juries, which means that jackpot justice remains a risk even when there is a shift in public willingness to make awards that are not socially beneficial. -- Ted Frank

Posted by Walter Olson at 10:37 PM | Permalink

U-Haul's refusal to do business with customers who want to use Ford Explorers to tow its vehicles (Jan. 8) illustrates one of the destructive consequences of "shotgun" litigation, in which plaintiffs' attorneys name as many defendants as possible in their suits. In this case the obvious defendants in case of a rollover accident would be Ford, the tire manufacturers or both. But the U-Haul company has a deep pocket too, and lawyers could develop some "creative" or "novel" legal theory (to use a charitable description) that dragged it in by seizing on some extremely remote causal link. (Maybe the argument would be that the effects of a rollover would be more extreme if a vehicle were towing a trailer, and U-Haul had a responsibility to warn Explorer drivers of that.) The high cost of litigation then serves to persuade such peripheral defendants to chip in towards a settlement, to the plaintiffs' and their attorneys' profit. So common is this approach, and so successful, that for a plaintiffs' attorney to fail to exploit it might be the basis for a juicy legal malpractice case. -- George L. Lenard, Chesterfield, Mo. (George's Employment Blawg)

Posted by Walter Olson at 10:28 PM | Permalink | TrackBacks (1)