Unseemly? Dangerous to the legal system’s reputation for integrity? If so, that hasn’t stopped some lawyers from hiring as consultants jurors who served on panels hearing their cases, including a much-publicized Orange County, Calif. rape trial that ended in a hung jury. We were onto the trend last Sept. 24, and now the Christian Science Monitor covers it (Marty Graham, “Flap ensues over hiring ex-jurors”, Mar. 2).
The infamous McDonald’s obesity case (Sep. 4, 2003) was reinstated yesterday on the highly technical grounds that the lower court applied the Federal Rule 9(b) “heightened pleading” standard to the New York consumer fraud statutes instead of the more lenient Rule 8. The court cites no relevant precedent for this assertion, which contradicts the language of the rule. As Jim Copland notes on our sister site, the Second Circuit effectively ruled that it was interpreting the Federal Rules so that it would be nearly impossible to dismiss a New York consumer fraud case before giving the plaintiffs an opportunity to conduct discovery. The decision seems wrong (compare, e.g., Tuttle v. Lorillard Tobacco Company, 118 F. Supp. 2d 954 (D. Minn. 2000)), and its main effect will be to raise the cost of defending against meritless claims–which will encourage nuisance settlements, which in turn will encourage more meritless claims in the hopes of extorting such nuisance settlements. (Pelman v. McDonald’s (2d Cir. 2005).).
The next frontier in discovery in civil litigation is electronic discovery. Plaintiffs’ attorneys want more of it, big businesses want less. [Disclosure: my law firm works for individual plaintiffs, corporate plaintiffs, individual defendants (albeit rarely) and corporate defendants]. What is electronic discovery? For a starting point, take this definition from a Business Week article describing a potential rule change in Federal lawsuits on a party’s duty to preserve electronic records:
Luke Lindau lives in a Chicago suburb and suffers from mesothelioma. He sued 59 different defendants for his personal injuries in Madison County; many defendants, expecting to be railroaded, don’t even bother to litigate asbestos cases once they’ve been sued in Madison County (Point of Law Oct. 5 and links therein), so he became a millionaire from the settlements–not bad for a retired 78-year-old who has already exceeded average life expectancy. However, Lindau made his way into Madison County by claiming that he was exposed to asbestos during the construction of Southern Illinois University Edwardsville in 1959-1962. Unfortunately for this theory, it was SIU-Carbondale that was being built then; ground wasn’t broken on the Edwardsville campus until 1963. So the two remaining deep pocket defendants actually insisted on protecting their rights and appealed the venue decision. The plaintiff settled–either to get money immediately or to avoid an adverse precedent for future plaintiffs, though his lawyer, Scott Hendler, has the chutzpah to complain about the “abuse of process” of the appeal. It’s not clear whether the two last settling defendants paid more than nuisance sums, as Hendler elides the issue in his discussion with the reporter. (Brian Brueggeman, “Man reaches $4 million deal in asbestos lawsuit”, Belleville News-Democrat, Dec. 8).
Why are some Mississippi courts considered judicial hellholes? Witness the trial of the breach-of-contract dispute between local insurance businessman Carroll Hood and his HICO versus St. Paul Insurance. HICO remained profitable after they agreed to reduced commissions and raised rates for selling St. Paul insurance (and there’s no indication why they thought St. Paul didn’t have the right to raise rates), but then turned around and sued St. Paul for “tortious breach of contract.” Though the contract required disputes to be litigated in Texas, the court permitted the case to go to trial, permitted the plaintiffs to add a new theory of liability in the middle of trial without warning, permitted $1.2 million damages to be awarded for “mental distress” over a contract dispute between sophisticated businessmen, and then allowed a jury to award $75 million in punitive damages–thirty times the already-inflated compensatory damages. (The jury actually wrote $75,000,000,000 on their verdict form, but the judge decided that this was a confusion over how many zeroes were in a million.) St. Paul also complained that the judge encouraged the jury’s bias against out-of-state companies. The Mississippi Supreme Court threw out the verdict on the easiest of grounds: the Mississippi court never had jurisdiction over the case because of the explicit forum selection clause in the contract being sued on. (AP, “Miss. Supreme Court Overturns $80 Million Breach of Contract Verdict”, Insurance Journal, Nov. 22; Jimmie Gates, “Justices toss out $77.5M jury award”, Clarion-Ledger, Nov. 25; Titan Indemnity Co. v. Hood opinion).
Another sign of hope: on September 9, in Gallagher Bassett Services, Inc. v. Jeffcoat, the Mississippi Supreme Court threw out a $3.5 million verdict against an insurance adjuster that negligently failed to pay an uninsured motorist claim (with a policy limit of $10,000) for all of ten months. If this trend continues, Mississippians might find that insurance companies can more affordably offer insurance.
Kobe Bryant’s accuser filed rape charges against him in Colorado, where the incident took place, and has also sued him in federal court in that state. But her lawyer says she may go to California, where Bryant resides, to file a civil suit against the basketball star. “The 20-year-old woman would not be bound in California by the limitations on financial damages that might apply to court in Colorado, attorney Lin Wood said. ‘In the final analysis, we’ll make the decision whether to go to California or not based on whether it’s in the best interests of this young lady,’ Wood said. ‘We’re going to focus our efforts on maximizing the potential recovery from Kobe Bryant.'” The criminal case against Bryant was dismissed Sept. 1 and cannot be filed again. (Steve Lipsher, “Lawyer: Calif. suit eyed to escape damage caps, Denver Post, Nov. 7).
A New Jersey nursing home defense attorney finds himself under fire after a presentation to fellow litigators at which he seemed to recommend, whether in a jocular way or not, making plaintiffs fight for every document and asserting blanket claims of privilege to keep relevant papers out of their hands. Curiously, adversaries who’ve litigated against attorney Donald Davidson tell a reporter that they consider him a straight shooter who has not used abusive or stonewalling tactics against them. (Charles Toutant, “Candid Comments About Discovery Bring Lawyer National Notoriety”, New Jersey Law Journal, Sept. 21).
Five German banks appealed a 100-million Euro fine by the European Commission. The European Court of the First Instance reversed the fine when the EC attorney faxing a brief “accidentally placed it face upwards in the fax machine”; the court received 100 blank pages instead of the brief, and defaulted the appeal. Press accounts are unclear whether the EC’s right to review that decision has effectively been waived. (James Kirkup, “EC loses ?70m after lawyer botches fax”, The Scotsman, Oct. 16). Washington state also had a similar problem when an attorney forgot to appeal an $18 million judgment against the state. (Sep. 13, 2000) (via Fark).
They do something nice for you, you do something nice for them:
[Santa Ana, Calif. attorney] Daniel J. Callahan took respect for a jury to a whole new level. His client manufactured blood analyzers used to diagnose illnesses, and it claimed it was defrauded by a firm that supplied its circuit boards. The jury returned a verdict of $934 million. After it was over, he invited jurors to a party at his home. And sent limousines to pick them up.
“Oh my God,” some of his friends said. “You did that?”
“Yeah,” he told them. “It’s legal.”
— David Hechler, “Winning: Successful Trial Strategies from 10 of the Nation’s Top Litigators”, National Law Journal, Jun. 21 (PDF — reprinted at Akin Gump site). And from the same publication:
When his client’s recent rape trial ended in a hung jury, defense lawyer Joseph G. Cavallo decided to hire some of the jurors to get advice, to the tune of $50 an hour. While hiring a juror is not a crime or prohibited by professional conduct rules in most states, ethicists disagree about the propriety of the ever more common practice.”
— Leonard Post, “Hiring Former Jurors as Trial Consultants Catches On”, National Law Journal, Aug. 27. And see Sept. 13 and Sept. 17-19, 1999 (after jury deadlocks in tax fraud trial of eccentric NYC businessman Abe Hirschfeld, he hands each juror a check for $2,500; not seen as illegal; other cases cited).
Juror #4 did seem awfully convivial and garrulous, didn’t he? Not to say scatterbrained. The reason became clearer after the verdict when he admitted that his Poland Spring water bottle had been half filled with vodka. But the judge declined to upset the defendant’s conviction: “There is apparently no law against drinking while serving as a juror and deliberating the fate of a fellow New Yorker.” (Michael Wilson, “Retiree Found Guilty, Juror Found Tipsy, and Verdict Stands”, New York Times, Sept. 16). Fool in the Forest has more (Sept. 17).