Posts Tagged ‘attorneys general’

Location, Location, Location: The Best & Worst Legal Climates in America

Given the economic costs imposed by today’s legal system (a staggering $865 billion per year according to one recent estimate), it’s surprising more companies don’t take into account a state’s liability climate when making critical decisions like where to open a new plant or invest in existing facilities.

A new report could help change that.

Risky Business: The Annual Boardroom Guide to Litigation in the 50 States provides the first ever ranking of state legal environments that combines economic science, real world corporate experience and input from state legal reform experts – people with the most current intelligence from the front lines.

It builds on a few landmark studies, including the American Tort Reform Association’s “Judicial Hellholes,” the Pacific Research Institute’s U.S. Tort Liability Index, and the Institute for Legal Reform/Harris Interactive survey.

So where are the soundest states – and where is the swampland?

Nebraska and Virginia top the list with the best legal climates. What do they have in common? Reasonable limits on punitive damages, a “rule of law” majority on the state Supreme Court, and Attorneys General who specialize in law enforcement, not grabbing the spotlight at the expense of businesses.

In stark contrast, West Virginia, Rhode Island and Florida round out the bottom of the list. All have activist Supreme Court majorities who consistently rule in favor of trial lawyers. West Virginia has a governor who supports legal reform – a reminder that having a pro-reform governor does not necessarily translate into a sound legal environment.

To see the full list go here.

Steve Hantler


  • Reversing course, Rhode Island attorney general drops rape charge based on 32-year-old “repressed memory”, thus disappointing some advocates [Volokh; Jul. 10]

  • Massachusetts disciplinary panel files misconduct charges against Judge Ernest Murphy over the “bring me a check and keep quiet” surrender-Dorothy letter he sent to Boston Herald publisher during his (successful) libel suit [Ambrogi; Dec. 23, 2005, May 11, 2007, etc.]

  • California jury rejects tippling speeder’s lawsuit against landowner, automaker, town, etc. in the case we headlined “Shouldn’t Have Put Its Berm Where He Wanted To Skid” [Dec. 24, 2005; Douglas Domel v. DaimlerChrysler Corp., City of Santa Clarita, and Does 1 to 50, inclusive (PC030045Y), L.A. Superior Court, L.A. Daily Journal, no free link]

  • Nominal damages only against German teens accused of scaring ostrich into impotence [UPI/ScienceDaily; Mar. 6]

  • Dubious bill authorizing lawsuits against OPEC may be headed to President’s desk [W$J/CattleNetwork; Jun. 8]

  • Jury convicts press baron Conrad Black on four counts, acquits on nine [Telegraph; Kirkendall, Bainbridge, Ribstein; Mar. 19, Jun. 5]

  • Michigan Supreme Court reinstates reprimand against Geoffrey Fieger over abusive language [NLJ; Jul. 3, Aug. 2, 2006, etc.]

So few class-action antitrust trials

Although the New York attorney general had already extracted $3 million in penalties on the charges, a jury returned a defense verdict in a class-action suit charging that Macy’s and other department stores conspired to fix the price of high-end tableware. Plaintiffs admitted they had no direct evidence of a conspiracy and jurors in San Francisco federal court declined to infer one. Manufacturer/defendant Lenox had already paid $500,000 to be let out of the case.

What was truly unusual about the case, however, was that it went to trial at all, given the pressure to settle on defendants in such situations:

Antitrust attorneys say the verdict was remarkable if only because the case made it all the way to trial.

“In terms of a price-fixing class action going to trial, I honestly can’t think of one,” said James McGinnis, a partner at Sheppard, Mullin, Richter & Hampton, who briefly represented May Department Stores, one of the defendants, at an early stage in the case.

Usually, said lawyers on both sides of the bar, a combination of sky-high financial risks and the prospect of criminal prosecution is enough to encourage a settlement. Defense attorneys, for example, may not want to lay all their cards on the table in a civil case while prosecutors are watching.

(Matthew Hirsch, “Macy’s Beats Antitrust Price-Fix Rap”, The Recorder, Jul. 5).

32 years later

The Rhode Island attorney general’s office has charged a man with rape based on a memory “repressed” by the complainant “until recently”. Harold Allen of Narragansett, 48, at the time of the alleged incident was sixteen years old, as was the complainant. Allen has pleaded not guilty, and through his attorney says he never had relations with the woman, though he was acquainted with her. There is no statute of limitations on the charge of first-degree sexual assault. (“Man charged with rape 32 years later”, AP/EyewitnessNews, Jun. 14; Volokh, Jul. 3).

Speeding Into Court

I smell class action:

Frequent N.H. Speeder Wants Limit Raised

DOVER, N.H. – A man with a penchant for speedy driving has come up with an unusual tactic for beating speeding tickets — raise the limit. So far this year, Larry Lemay has been ticketed four times for speeding.

Rather than slow down, Lemay is suing the state Department of Transportation to study traffic and speed limits across New Hampshire, to see whether limits could be raised. … Lemay said he believes many speed limits are set intentionally low so the state can cash in on drivers.

I’m not sure exactly what this lawsuit is meant to accomplish. So he wins, and a judge orders the state to do a “study” that it doesn’t want to do? Want three guesses as to what the study is going to say?

On the other hand, I might have to give him a call to see if I can file an amicus brief. I have a lot of parking tickets that I think violate my right to park on the sidewalk.

$21 million lawsuit for negligent prosecution

In June 2004, 21-year old Vermont resident Samantha Perreault went out drinking with a couple of friends, Norman Poulin and Justin Lawrence. After three rum and cokes each, they left; Lawrence hopped on one motorcycle, and Poulin and Perreault got on another and followed him. Although they may not have been legally drunk, they had had several drinks, it was night, and they were driving 70 mph. Lawrence lost control of his motorcycle and crashed. Poulin, attempting to avoid Lawrence, also lost control and crashed. Perreault, unfortunately, was killed.

Both Poulin and Lawrence were prosecuted for criminal negligence, but Lawrence, apparently, was not also charged with driving without a motorcycle license. Feeling that Lawrence’s punishment was insufficient, Perreault’s father has now filed a $21 million lawsuit. Did he sue Poulin? No; apparently he forgave Poulin. Did he sue Lawrence? Of course not; Lawrence doesn’t have deep pockets. No; he sued the state of Vermont.

The Plainfield resident says officials in the Department of Public Safety and Office of the Attorney General showed disregard for his daughter and for the law by failing to fully prosecute a man involved with her death.

“I don’t want anybody else to go through this,” Perrault said Friday. “I think she deserved more than this.”


“By the state not doing anything, they’re saying it’s okay for you to drive without a license,” Perreault says. “I’ve gone through all the right channels, called the state police, called (the Office of the Attorney General). All I’m getting is blown off.”

In addition to seeking monetary damages, Perreault is also demanding that Lawrence be charged and prosecuted for driving without a license.

Of course, it’s hard not to feel sympathy for someone whose daughter is killed. And the lawsuit isn’t likely to succeed, as the article notes; the state is probably immune, and “failure to prosecute” isn’t a cause of action anyway. But that doesn’t alter the fact that the lawsuit reflects an all-too common mindset that picking a random big number out of a hat and filing a lawsuit against someone with deep pockets is the right approach whenever one is annoyed. (No, the case probably won’t last as long, and cost taxpayers as much, as the Roy Pearson pants lawsuit, but it certainly won’t be free, and will contribute to congestion in the courts which slows down — and thus raises the cost of — legitimate lawsuits.)

ABA Journal on tobacco settlement

The piece’s subtitle: “How greed, hubris and high-stakes lobbying laid waste to the $246 billion tobacco settlement”. Without necessarily endorsing every point in the piece — this is the ABA Journal, after all — it’s still striking how what was once a lonely critique of the settlement has now been accepted as history’s verdict:

The only big winners in the litigation appear to be the tobacco companies, the state treasurers and the lawyers who represented both sides….

…$15 billion has been awarded to the private lawyers hired by the state attorneys general. That’s the largest attorney fee award in history. More than $100 million — Big Tobacco won’t say precisely how much — has been paid to the lawyers defending the companies.

“The tobacco litigation was a failure of historic proportions,” says Linda Eads, a law professor at Southern Methodist University’s Dedman School of Law in Dallas. “A complete and utter failure in every sense.”

(Mark Curriden, “Up in Smoke”, ABA Journal, March).

“Anatomy of a Mass Tort”

Experienced defense counsel Beck and Herrmann have a must-read post summarizing the lifecycle of a mass tort., touching on many of the themes Walter and I have covered in the past: the at-best parasitic irrelevance of the plaintiffs’ bar to the safety of the product (at worst, trial lawyers are counterproductive); the feeding frenzy of peripheral litigation and ambulance-chasing to sign up clients; the irrelevancies of game-show style trials to the ultimate issues of the case, much less public safety.

Beck and Herrmann’s model could certainly use some expansion; if anything, they understate the absurdity of the status quo. There’s no mention of the peripheral “consumer-fraud” class actions on behalf of the customers who have suffered no injury; the expense and harassment of discovery; the jockeying of the plaintiffs’ bar to plant misleading stories in the press to taint the jury; the efforts to use taxpayer resources of various trial-lawyer-friendly state attorney generals to harass the defendant; the lobbying by the plaintiffs’ bar to force the defendant to settle before plaintiffs have to test their complaints’ theories in the judicial system; the mass fraud by trial lawyers that almost invariably accompanies the mass tort.

Updates – May 31

Updating a couple of stories recently covered here on Overlawyered:

  • First rule of damage control: when you’re in a hole, stop digging. A few weeks ago, we mentioned the West Virginia Attorney General Medicaid scandal (May 19) in which AG Darrell McGraw took it upon himself to spend state funds that he had recovered from Purdue Pharma after suing them for selling Oxycontin. This upset both the federal government, which argues that it has a legal right to some of these funds, and the state legislature, which felt that it should decide how to appropriate state funds. McGraw appears unapologetic and unworried about the federal investigation, but his office did promise the legislature that he would stop spending money. Now LegalNewsline reports that he’s going back on that promise:

    Despite promises and a federal investigation, West Virginia Attorney General Darrell McGraw on Wednesday handed out even more of the settlement funds gained in a 2004 agreement with Purdue Pharma.

    McGraw gave $75,000 to the Kanawha Valley Fellowship Home, which will use the money for its drug treatment and education program. He says the program will affect 20 counties.

    The real problem here is not that the state legislature is annoyed — that’s local politics. The real problem is that if the federal government decides that it is entitled to a share of this money, the state is going to have to come up with millions of dollars to give to the federal government — money that McGraw already spent.

  • Three weeks ago, we noted that a prominent anonymous medical blogger, “Flea,” was liveblogging his malpractice trial, and we discussed the ramifications for Flea’s case. A few hours after we posted about this, Flea stopped — presumably after his attorney had a fit. But apparently that was at least a few hours, or a few weeks, too late; Flea had left enough clues to enable the plaintiff’s lawyer to figure out that Flea is Robert Lindeman, and she questioned him about it on the stand:

    With the jury looking on in puzzlement, Lindeman admitted that he was, in fact, Flea.

    The next morning, on May 15, he agreed to pay what members of Boston’s tight-knit legal community describe as a substantial settlement — case closed.

    The Globe also quotes a trial lawyer as claiming that the plaintiff’s attorney “had telegraphed that she was ready to share Lindeman’s blog — containing his unvarnished views of lawyers, jurors, and the legal process — with the jury,” although it’s not clear to me how his views of lawyers, jurors, and the legal process would be relevant to a medical-malpractice case.

    Incidentally, Flea’s blog is apparently now totally kaput.

“Free expression gets smoked”

Bowing to pressure from 32 state attorneys general to curb the depiction of smoking in movies, the Moving Picture Association of America has just conceded “the basic principle that public-health lobbyists and politicians should have a big role in deciding what people will see, instead of letting the industry merely cater to its audience.” But state governments “have no more business determining what appears on movie screens than they do in deciding what goes into Judy Blume’s next novel. …The MPAA’s response validates the politicians in their intrusions, and beckons them to find new ways to regulate art and other matters that are supposed to be exempt from their control.” (Steve Chapman, syndicated/Orlando Sentinel, May 21). More: Michael Siegel, May 11, May 16, May 17; Jacob Sullum, May 16. Earlier: Sept. 1, 2003.