Posts Tagged ‘AAJ’

New at Point of Law

Carter Wood has been doing great things lately with the National Association of Manufacturers’ Shop Floor blog, which often treats legal reform topics. Since Monday he’s also been posting up a storm guestblogging at Point of Law. Topics include: ATLA/AAJ’s juvenile pre-nose-thumbing at the U.S. Chamber of Commerce’s 2008 Lawsuit Climate Report (which, like similar studies from ATRA and Pacific Research Institute, tries to pick best and worst state legal environments); the employment-litigation-expanding Lilly Ledbetter Fair Pay Act (more); some thoughts on journalistic shield laws; and sundry reports from the Geoffrey Fieger trial, Florida politics, and Texas Supreme Court-watching.

February 11 roundup

The battle for Edwards’s funders

Aides to candidates Clinton and Obama feverishly work an AAJ/ATLA trial lawyers’ conclave down Puerto Rico way, sensing that the money behind the flagging John Edwards candidacy may be “looking for a new candidate to get behind”. It’s “a testament to the crucial role played by the legal profession in Democratic fundraising. Trial lawyers have proved to be the financial mainstay for Edwards’s two presidential bids, as well as for the Democratic Party in general.” Quotes longtime Overlawyered favorites Fred Baron, Thomas Girardi and Robert Montgomery (Matthew Mosk, “Top Candidates’ Teams Look to the Lawyers”, Washington Post, Jan. 28).

“That’s why I didn’t become a trial lawyer”

Democratic front-runner (if it’s okay to call him that now) Barack Obama tells a Newton, Iowa audience about his early decisions to pursue civil rights, community organizing and public office rather than more lucrative legal specialties, and is blasted in parts of the lefty blogosphere for the implied dig at John Edwards. (Shailagh Murray, Washington Post “The Trail”, Dec. 30; Kos, TPM, Kia Franklin, etc.) Per the Washington Post’s Chris Cillizza, “Obama is starting to use the term ‘trial lawyer’ more often on the stump to describe Edwards, perhaps hoping to capitalize on the negative associations many voters have with that particular profession.” (“The Trail”, Dec. 31).

P.S. Some highlights of our earlier Obama coverage: Aug. 5, 2004 (“Anyone who denies there’s a crisis with medical malpractice insurance is probably a trial lawyer”); Apr. 10, 2007 (making inroads nonetheless on Edwards’ trial-lawyer donor base; per Legal Times, “Despite Obama’s silence on the issues trial lawyers care about, those who support him say they are confident he will back trial lawyers when the time comes”); Jul. 31 and Aug. 5 (auditions at AAJ/ATLA convention). P.P.S. Plus Ted at Point of Law a year back (“far from convinced” that Obama will cross the trial bar, despite his vote for the Class Action Fairness Act).

Judean People’s Front v. People’s Front of Judea Dept.

You remember last year, when the Association of Trial Lawyers of America tried to hide their identity and changed their name to the considerably less accurate American Association for Justice. (Aug. 2006; July 2006, etc.) Well, a new organization, led by J. Keith Givens, a former partner of the late Johnnie Cochran, has attempted to usurp the old acronym with an organization called The American Trial Lawyers Association, arguing that ATLA abandoned the name. “The name defines who we are and what we do,” which is very similar to the remark made by AAJ when they surrendered the Trial Lawyer title. Litigation, of course, ensued. (Jeffrey H. Birnbaum, “A Case of Trial Lawyers v. Trial Lawyers”, Washington Post, Nov. 30; commentary from Murnane, Lattman, Adler @ Volokh, Scheuerman). The Association of Trial Lawyers of America surrendered the American Trial Lawyers Association name decades ago when the American College of Trial Lawyers complained it was too similar, and the ACTL is also unhappy with the new ATLA’s use of the name. The fact that the previous sentence is so confusing suggests that the plaintiffs have a point.

Federici v. U-Haul

Here is an interesting but tragic case currently in trial in King County, Washington. Maria Federici, a then 24-year-old woman was gravely injured when an entertainment center flew from a U-Haul trailer attached to a vehicle operated by another motorist. It smashed through the windshield of Federici’s following vehicle, striking her in the face crushing every bone in it. She suffered blindness and permanent disfigurement. Media accounts are here, here and here.

I’m not posting to criticize Federici’s suit per se. It has noteworthy flaws to be sure–for instance there is evidence suggesting her blood alcohol content (BAC) was above the legal limit while she was driving, but the BAC was obtained under circumstances suggesting the results were unreliable (the injury trauma and resultant blood loss may have affected the BAC.) And her boss testified that she had only one glass of wine prior to the accident. Notably, the court disallowed the BAC evidence at trial.

So, Federici sues the motorist who failed to tie down the entertainment center, U-Haul and the rental company for alleged design flaws in the trailer and alleged negligent rental practices. Okay, so the motorist can own up for his negligence and U-Haul and the agency can own up for theirs, right? Not so fast. Washington State allows for a fault-free plaintiff to recover all damages from any defendant even 1% at fault.

With or without evidence of intoxication I wonder if Federici could have avoided anything flying toward her while traveling at freeway speeds. So, let’s assume the jury assigns her zero fault. That leaves 100% of potential fault for the defendants. Now, if you read the media accounts it seems to me that the motorist carries the majority of any fault for failing to secure his load, causing the accident. But, who has the deepest pockets? Let me help you: it’s not the motorist.

The plaintiff attorney in this instance will pull out the stops–do anything–to implicate U-Haul, and to a lesser extent the rental agency for any little amount of liability they can so that his client can collect the entire judgment from them (I suspect U-Haul has sufficient assets; the rental agency, if the Mom-and-Pop type, maybe not.) I don’t blame the plaintiff’s attorney, really–he has to advocate his client’s interests. But, it shows how twisted and wrongheaded the joint & several statute is in Washington. Nothing against Federici here, she’s suffered enough. But I struggle with holding some people accountable for damages caused by others. Does this make any sense to you?

Let’s look at the Mission Statement for the American Association for Justice (formerly the Association of Trial Lawyers of America):

The Mission of the American Association for Justice is to promote a fair and effective justice system – and to support the work of attorneys in their efforts to ensure that any person who is injured by the misconduct or negligence of others can obtain justice in America’s courtrooms, even when taking on the most powerful interests.

I’m all for that! Especially that part that says “fair”. Is it fair to hold a 1% wrongdoer accountable for 100% of the damages? If so, why? Because I don’t agree and I’d like to know if I’m wrong. And, I just know the AAJ would scream bloody murder if anyone tried to amend that statute.

October 10 roundup

  • She wore a wire: defense attorney says administrative assistant to one of the three lawyers in Kentucky fen-phen scandal worked as FBI mole, circumventing attorney-client privilege [AP, Courier-Journal, Lexington Herald-Leader, ABA Journal]
  • Suing a lawyer because his deposition questions inflicted emotional distress? No way we’re going to open those floodgates, says court [NJLJ]
  • Counsel Financial Services LLC, which stakes injury lawyers pending their paydays, says it’s “the largest provider of attorney loans in the United States and the only Law Firm Financing company endorsed by the AAJ (formerly ATLA)”; its friendly public face is a retired N.Y. judge while its founder is attorney Joseph DiNardo, suspended from practice in 2000 “after pleading guilty to filing a false federal tax return” and whose own lend-to-litigants operation, Plaintiff Support Services, shares an office suite with Counsel [Buffalo News] The firm’s current listing of executives includes no mention of DiNardo, though a Jul. 19 GoogleCached version has him listed as President;
  • Patent litigation over cardiac stents criticized as “a horrendous waste of money” [N.Y. Times]
  • More on the “pro bono road to riches”, this time from a California tenant case [Greg May, Cal Blog of Appeal]
  • Not a new problem, but still one worth worrying about: what lawyers can do with charitable trusts when no one’s looking over their shoulder [N.Y. Times via ABA Journal]
  • Has it suddenly turned legal to stage massive disruptions of rush-hour traffic, or are serial-lawbreaking cyclists “Critical Mass” just considered above the law? [Kersten @ Star-Tribune]
  • “Look whose head is on a plate now”: no tears shed for fallen Lerach by attorney who fought him in the celebrated Fischel case [ChicTrib, San Diego U-T]
  • “Jena Six” mythos obscures graver injustice to black defendants, namely criminal system’s imposition of long sentences for nonviolent offenses [Stuart Taylor, Jr. @ National Journal — will rotate off site]
  • Economist David Henderson on restaurant smoking bans [Econ Journal Watch, PDF, via Sullum, Reason “Hit and Run”]
  • Technical note: we learned from reader Christian Southwick that our roundups were displaying poorly on Internet Explorer (Ted and I use other browsers) and we found a way to fix. So, IE users, please drop us a line when you encounter problems — we may not hear about them otherwise.

ATLA lobbies third branch to ignore car-leasing laws

We previously noted the important legislation passed by Congress in 2006 to protect deep-pocket car-leasing companies against vicarious liability for the accidents of its customers. As a result, the price paid by New Yorkers for leased vehicles dropped $600. Of course, that was money out of the pocket of trial lawyers, and ATLA’s litigation-lobby litigation arm, the Center for Constitutional Litigation, intervened with repeated efforts with judges to either ignore or strike down the statute. Several Florida state judges provided a tendentious reading of the statute to ignore it precisely when it was said to apply; a federal district judge refused, but instead struck down the regulation of the interstate transaction under the Commerce Clause.

One can applaud a narrower view of the federal government’s scope under the Commerce Clause, but this judge’s interpretation is contradictory to that of the Supreme Court’s and narrower even than Justice Scalia’s view, and perhaps even the view of the Supreme Court pre-Wickard: no court ever held that the federal government cannot regulate commercial automobile transactions. We’re looking forward to hearing the paranoid Constitution-in-Exile complainers on the left speaking up about the attempt by ATLA to strip the federal government of its powers.

CCL’s argument has been that the statute doesn’t regulate automobile transactions, but intrastate litigation. This is tendentious enough in state court (does civil liability under the ADA not regulate employment, but rather the litigation over intrastate employment?), but utterly absurd in a federal court where the parties are of diverse citizenship.

The ATLA press release is excited that the decision “gives rental car companies a powerful incentive to assure that their customers are adequately insured”—by forcing customers to purchase insurance that they may not want to purchase. Of course, nothing in the Graves Amendment forbade states from setting regulations requiring such minimum insurance; it just forbade trial lawyers from doing so in state court without state legislation. The litigation is a vivid reminder that getting legislators to act to enact desperately needed reforms is only the beginning of the process of fixing a broken civil justice system: one also needs judges who will follow the rule of law. (Vanguard v. Huchon (via Turkewitz); see also Graham v. Dunkley (NY Sup. Ct.)).

Assignment Desk: Edwards, Obama, and lobbyist money

At YearlyKos, John Edwards and Barack Obama sought to distinguish themselves from Hillary Clinton by saying they didn’t take money from registered lobbyists, and Clinton was booed for defending herself. (Also: Franke-Ruta.)

I found this curious: after all, Obama and Edwards showed up at the national convention of the lobbying group for the trial lawyers, the former Association of Trial Lawyers of America (who now call themselves the American Association of Justice). There, they gave speeches (as did Clinton, Biden, and Richardson). A look at the largest donors for Obama and especially Edwards shows a disproportionate number of active members of that lobbying group. Indeed, John Edwards’s finance chairman is Fred Baron, the former president of ATLA. If Obama and Edwards want voters to believe that Clinton is influenced by lobbyist money, what should we think about these two candidates’ debts to trial lawyers? Are we to believe that the critical difference is the lobbyist registration papers, at which point money becomes tainted and dirty? Are any reporters going to ask that hard question, or will they let the two candidates demagogue from the high ground as they take millions from the most pernicious special interest group in America?


Perhaps one reason trial lawyers so frequently accuse reformers of manufacturing popular outrage is because such astroturfing is a common trial-lawyer tactic: Peter Lattman uncovers eight identical letters to the editor written at the behest of the Association of Trial Lawyers of America (now going by the AAJ misnomer), all on behalf of Bill Lerach’s bogus Enron suit and criticizing the Bush administration officials who dare to stand up to the attempted extortion. Similar astroturfing regularly goes on in the comments section of the Lattman blog.