Overlawyered: Chronicling The High Cost Of Our Legal System

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Antitrust regulators tout destruction of capital

Last week, the Justice Department’s Antitrust Division issued a triumphant press release touting that 2006 recorded “the second highest level of criminal fines” in Division history. The Division is actually measuring the government’s 2006 fiscal year: From October 2005 through September 2006, the Division obtained criminal fines totaling $472,445,600, a 40% increase over the previous fiscal year. The Division also said that criminal prosecutions of individuals yielded a combined 5,383 days of jail time; and during the first three months of the current fiscal year, an additional 9,135 days of jail time have been imposed.

Thomas Barnett, the head of the Antitrust Division, said more fines for “cartels” and prison sentences for “price fixing” executives created substantial economic benefits:

“Sound enforcement of the antitrust laws ensures that illegal conduct is stopped, procompetitive transactions can proceed, and businesses are able to engage in vigorous competition resulting in lower prices, better quality and more choices for consumers.”

There’s no empirical evidence that any of this is true. Indeed, the DOJ is not legally required to demonstrate the economic effects of antitrust policy. Since price fixing is treated as a “per se” antitrust violation by the courts, it’s legally unnecessary to address such matters. Nevertheless, the Division insists that criminal enforcement improves consumer welfare. That doesn’t make sense if you think about it.

Read On…

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California’s Prop 65: Protecting Us From the Evils of Cooked Chicken

Many of you may be aware of California’s “Proposition 65,” passed in 1986 and intended to help consumers by requiring warnings of any known exposure to a variety of chemicals, many of them carcinogens, that the state identifies on its Prop 65 list. In practice, many would argue, the law has done more to help plaintiffs’ attorneys than consumers, by creating an enormous list of allegedly dangerous substances and permitting a lawsuit whenever warnings of those substances are not posted — whether or not there is any realistic risk of harm under the particular circumstances.

Here’s a good example. Those listed chemicals include “heterocyclic amines” (HCAs) which are formed by cooking meat, the highest concentration occurring in cooked chicken. And so a group called the Physicians’ Committee for Responsible Medicine recently sued several restaurant chains, including McDonald’s, Burger King, and Outback Steakhouse, charging them with failure to warn customers that they cook meat. That is, failure to warn customers about the activity that is the precise reason that those customers are going there in the first place.

According to the National Cancer Institute, while HCAs may have some association with increased risks of cancer, there is currently “no good measure of how much HCAs would have to be eaten to increase cancer risk” — more research is needed. In fact, the NCI cited to one study that specifically covered fast-food restaurants and concluded that those companies’ products had low levels of HCAs. According to that study, home cooking was a greater danger. But that’s the beauty of laws like Prop 65 — evidence tends to be optional.

American Council on Science and Health
Prop 65 News Online

Previous coverage of the animal-rights group “Physicians’ Committee for Responsible Medicine” on Overlawyered: Sep. 6 and links therein.

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More Guestblogging

Greetings, Overlawyered readers. I’m your other post-Christmas guestblogger, Skip Oliva. I’m not a lawyer, but I do write about legal subjects. For the past four years, I’ve run the Voluntary Trade Council, a public policy group that focuses on antitrust regulation. I maintain VTC’s weblog as well as write for the Mises Economics Blog. During my stint here I’ll be discussing some of the more interesting antitrust cases from the past year.

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Post-Christmas Guestblogging

Hi — I’m one of your two post-Christmas guestbloggers. I’m a defense attorney in the San Francisco office of Shook, Hardy & Bacon, LLP, and I also write a blog called “Lowering the Bar,” which is a legal-humor site, for which, I hasten to add, SHB is not responsible. I have some experience with the unnecessary-lawsuit kind of story in particular, and I think I’ll be starting today with a recent California lawsuit against grilled chicken. Should have that posted in the next hour or so. Anyway, I look forward to blogging here for the next week. Thanks to Walter and Ted for the opportunity.

Thank You and Good Night

Given that home and hearth will likely keep me distracted throughout December 25, I have pre-posted this parting message:

Thank you to Walter Olson for the opportunity to guestblog here over the past week.  Thank you to Ted Frank for sharing the space.  And thank you to Overlawyered readers for reading my posts here.  Walter has additional top quality guestblogging in store to see you through to the New Year.  Since he hasn’t shared the secret with me, I will be checking in bright and early Tuesday to learn who it might be.  I encourage you to do the same.

It has been a pleasure doing justice with you.

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As Seen on TV: Why Americans Hate, and Yet Love and Trust, Those Pesky Lawyers

UCLA School of Law professor emeritus Michael Asimow has published a paper pondering an apparent contradiction in American’s views of lawyers and the adversary system:

Lawyers and lay people in the United States generally believe that the adversary system is the best way to deliver justice in a civil or criminal trial.  Broadly speaking, adversarial procedure leaves most critical pre-trial and trial decisions such as discovery, the framing of issues, choice of witnesses, the questions directed to witnesses, and the order of proof in the hands of lawyers.  The central precept of the adversary system is that the sharp clash of proofs presented by opposing lawyers, each zealously representing the interests of their clients, generates the information upon which a neutral and passive decisionmaker can most justly resolve a dispute.  In contrast, legal systems outside the Anglo-American world employ inquisitorial pre-trial and trial procedures that leave critical elements of the process under the control of a judge rather than the attorneys.

        * * *

The unquestioned dominance of the adversarial system seems paradoxical because the general public despises and distrusts lawyers.  In an ABA poll conducted by M/A/R/C Research, only 14% of the public were extremely or very confident in lawyers and 42% were only slightly or not all confident.  People had far more confidence in judges: 32% were extremely or very confident in judges and only 22% had slight or no confidence in judges.  Why, therefore, would people want to turn over something as important as control of the pre-trial and trial processes to lawyers whom they thoroughly distrust, rather than to judges whom they distrust much less?  Why would they prefer a system whose objective is to generate ‘trial truth’ rather than real truth, substantive justice rather than procedural justice?  This article speculates about some possible solutions to these puzzles.  [Footnotes omitted; emphasis in original.]

Professor Asimow suggests that attitudes toward the real life adversary system have long been shaped by the stories of purely fictitious advocates.  "Popular culture has taught us that the adversarial system uncovers the truth about past events.  According to familiar pop culture narratives that we absorb from the cradle onward, lawyers working within an adversary system are champions of justice and liberty." 

Asimow’s Exhibit A is the greatest criminal defender of them all, Perry Mason.  Exhibit B?  A rather less polished upstart from the outer boroughs of New York:

A staple of lawyer movies is the brilliant cross-examination that destroys a lying, deceptive or mistaken witness and reveals the truth.  Although many such movies are instantly forgettable, some are exceptionally vivid. Just to name a couple, take the immortal My Cousin Vinny.  Vinny Gambini has recently passed the New York bar exam (after numerous failures) before traveling to Alabama to defend his young cousin and a friend in a murder trial.  Vinny is clueless about Alabama culture and criminal procedure, but nevertheless morphs into a brilliant trial lawyer.  His cross-examinations are devastating.  For example, one eye-witness claims he saw the two ‘utes’ enter the Sack o’ Suds grocery store and exit five minutes later in a green car.  He knows it was five minutes because he looked up just as he started and just as he finished cooking his morning grits.  Vinny points out that in the rest of the grit-eating world, it takes 20 minutes to cook grits.  The witness is destroyed.  Vinny also deploys his girlfriend Mona Lisa Vitto, an unemployed hairdresser, as an expert witness on auto mechanics to devastating effect.  This scene effectively validates the existing system of partisan expert witnesses.  [Footnotes omitted.]

The entire paper, (M. Asimow, "Popular Culture and the Adversary System"), with many more examples, can be downloaded as a PDF from Social Science Research Network.  Link via Christine Corcos at the Law & Humanities Blog ("Michael Asimow on the Image of the Adversarial System in Popular Culture," Dec. 1).

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Los Angeles: Where Even the Prosecutors Are in Show Biz

In the sort of cases covered by this site, public relations overshadow substance all too often.  For a glimpse of how even public servants — in this case the prosecutors of the Los Angeles City Attorney’s Office — are keeping a constant eye on the P.R. possibilities of their cases, consider this report from former Los Angeles Times reporter-turned-blogger, Kevin Roderick (LA Observed, "Rocky’s office defines what makes news," Dec. 22):

A recent email reminded all the lawyers in City Attorney Rocky Delgadillo’s criminal branch never to talk to reporters without clearance — and how they should recognize a newsworthy legal case.  Public safety?  Important public issue at stake?  Nah, this is L.A.

Number one is any case involving a celebrity — ‘no matter how minor’ — followed closely by a politician.  Death, mutilation, child molestation or animal cruelty are also sure bets.

Terrorism shows up as the tenth item on the list, slightly behind cases representing a "major personal accomplishment for the prosecutor" and not far ahead of cases involving "a truly weird fact pattern."

Roderick reproduces the entire long e-mail — repetitiously entitled "Improving Communications with the Communications Department" — which prescribes an elaborate protocol for keeping "’primary points of contact"’ within the Communications Department" [formerly the "Press Office"] informed as cases proceed, and concludes with a reminder that it pays to plan ahead, even before bringing charges:

[I]f you have a case that is very likely to attract media attention, such
as a celebrity justice case, you may want to obtain guidance from the
Communications Department in advance of the filing, arraignment, trial,
etc. regarding how to deal with expected press inquiries.

What a wonderful phrase: "Celebrity justice."  Welcome to L.A.

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“So, Probably I’ll Sue Her, Because It Would Be Fun”

In many if not most cases, lawsuits that are held up to scorn on this site are filed by people who, in their heart of hearts and however misguidedly, believe in the justice of their cause.   Those people can and should be criticized when their cause is misguided, or when it camouflages some other agenda, or when their only real impact is the introduction of unjustified costs, frictions, and obstacles in to the path of valuable and legitimate economic or creative activity (not to mention the unjustified enrichment of a small class of my fellow attorneys). 

Worse than these, though, in many ways, are wealthy and/or powerful egotists who use the legal system on a whim, as their personal payback mechanism or as a means of venting their pettiest grievances.   At the risk of fatally lowering the tone of Overlawyered and of prematurely ending my tenure as a guestblogger, I note the latest example, a tiff between two deeply unpleasant but inescapable self-anointed celebrities: Rosie O’Donnell and Donald Trump (MSNBC, "Trump to Rosie O’Donnell: You’re sued!", Dec. 21).

Earlier this afternoon Trump announced he is filing suit against the TV talk show host. ‘She says things that come to her mouth, she’s not smart, she’s crude, she’s ignorant and to be honest I look forward to suing Rosie,’ he told our cameras. ‘I’m gonna sue her and I look forward to it.  She’s really very dangerous for the show.’

Trump declined to elaborate on the details of his proposed legal filings, but added O’Donnell will understand his reasoning.  ‘Rosie will find out what we’re suing her for.  She knows what we’re suing her for,’ he said adding the lawsuit is already in the works.  ‘It’s something I look very forward to,’ he added.

If ever there was a case for "loser pays," this is it.   Trouble is, with relentlessly meaningless suits like this one gumming up the works, we’re all the losers.

Of Related Interest: The scurrilous Los Angeles gossip site, Defamer, has the Trump video from which I have drawn the post title (Dec. 20).   Not that I would recommend watching it, of course.

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