I'm Not a Journalist, But Sometimes I Sit With Them at Important Events

Today I attended a seminar at the Washington University School of Law. Hosted by The Washington University Journal of Law & Policy, it concerned civil litigation in Madison County, Illinois, where I've practiced since 1990. (Thanks to Justin of musclehead for giving me the heads up about the conference.)

Even though I am not a journalist, I sat between reporters for the Associated Press and the Alton Telegraph. Since I take notes pretty fast, I was able to help out the AP reporter on my left with a quote. Meanwhile, the Telegraph reporter on my right kept me engaged with some witty banter (whispered, of course).

Okay, so maybe I'm burying the lead. In the keynote speech, Griffin Bell,* who admitted he'd never set foot in Madison County, called on the Justice Department and the FBI to investigate the judges and lawyers of Madison County. He wasn't completely clear as to why, but it had something to do with his charge that an investigation might turn up a "pattern and practice" of denying due process rights to corporations. He later said there "might not be anything to these stories," failing to explain what "stories" he was talking about. (Maybe it was the stories he'd heard that in Madison County, big corporations are sometimes held accountable for their harmful actions.)

In response to Bell's call for an investigation, one of the plaintiffs' lawyers on the panel said "bring it on." This lawyer also added that as long as the FBI was busy investigating, it should also take a look at which giant industries, e.g., the tobacco industry, are behind the orchestrated efforts to slander the judges and lawyers of Madison County. He predicted the slander won't stop until the judges and juries in our county bow to the intimidation. (Or, as another participant added, until tort "reform" has its intended effect of making all consumer protections extinct in the U.S.)

I'm sure there will be more about the seminar tomorrow from the St. Louis Post-Dispatch, which sent two reporters. Perhaps I'll respond to their article once I'm back from my 8:30 a.m. court hearing. (At the seminar, by the way, I learned from a defense lawyer that plaintiffs' lawyers in Madison County always win when a defendant files a motion to dismiss. Often, I learned, plaintiffs' lawyers don't even file a response to the motion. This was good news, because it means I won't have to prepare for tomorrow's hearing. And that response I filed yesterday? Shame on me for bothering!)

One more thing. On Monday, the Belleville News-Democrat published an article by Brian Brueggemann titled "Jury verdict draws national attention." The article concerned a 2003 verdict in Madison County against U.S. Steel for $250 million, which included a $200 million punitive award. This verdict was portrayed in the article as something that makes the community look bad. At the seminar today, I learned from the lawyer who tried the case that the Madison County judge threw out the punitive part of the award shortly after the jury returned its verdict. After that, the case was settled for less than $50 million.

The tort reformers can go ahead and engage in their scare tactics if they want--$50 million is still a lot of money. But wouldn't it be nice if everyone at least took the time to tell the whole story?

*Partner at King & Spalding in Atlanta, which represents many large corporations; 72nd Attorney General of the United States; former United States Circuit Judge of the Fifth Circuit Court of Appeals. Bio here.

Comments

[Ted]

No doubt Gary, Indiana resident Mr. Whittington filed his lawsuit in Madison County for reasons of pure convenience, rather than because he was forum shopping. That the case only went to the jury (which deliberated for all of two hours) because the judge made the unprecedented decision that workers' compensation law did not apply is beside the point as well. Oh, yes, and U.S. Steel was not allowed to introduce evidence to the jury that they were taking safety measures that the plaintiff accused them of not taking.

In any event, overlawyered's coverage of the Whittington case noted that U.S. Steel settled for a fraction of the $250 million, so you're arguing against a straw man. Which tort reformers were you referring to?

[Evan]

Ted: You're not the only tort reformer of my acquaintance; if I'd been talking about you, I would have mentioned you specifically. But I did notice that in this 1/5/04 post on overlawyered, you recap the case but don't mention that the "plaintiff-friendly judge" (your term) took away the $200 million dollar punitive award. In fact, you imply the opposite: "The size of the award, compounding at 9% interest, caused U.S. Steel to decide to settle for a fraction of that amount rather than take their chance with an appeal." The reference to the "size of the award" is to the $250 million, not $50 million.

As a result, your readers are led to believe that U.S. Steel was thinking about 9% interest on $250 million, when that's not correct. It's also misleading to say that the case settled for a fraction of $250 million when it really settled for a fraction of $50 million. The latter number is less--though not quite as horrifying.

In any case, you're not alone: I looked earlier today, and I couldn't find any recounting whether by a newspaper or by a pro-business lobbying group that told the whole story. Don't worry about me, though--I'm sort of getting used to it.

[musclehead]

A friend of mine who does mainly, though not exclusively, insurance defense work told me of a time that the judge hearing the case was a cousin of plaintiff's counsel. Now, I am no ethics scholar, but there is certainly something sketchy about that situation. (no, the judge did not recuse himself; perhaps he went to the same judicial conflict of interest seminar as Scalia?)

[Ted]

I'd like a cite for the proposition that the punitive damages were overturned. I think you're mistaken. The website of Mr. Bono, who you seem to be relying upon, refers to it as a $250 million verdict, without any reference to a judge-imposed remittitur, and, as you acknowledge, none of the extensive press coverage mentions such an order. I'm not sure when such an order could have happened. The jury issued its verdict Friday, March 28. The judge had not yet ruled on the punitive damages issue, according to a Mar. 29 news story. The case settled over the weekend, and U.S. Steel cut a check on Monday, March 31. But I'm happy to be corrected on that.

In any event, as I'm sure you're aware, even if the punitive damages were overturned by the judge, it would be subject to a cross-appeal. Correct me if I'm mistaken, but my understanding of Illinois law would mean that the 9% would apply if the notoriously plaintiff-friendly appellate court in that district reinstated the punitive damages. So that sword of Damocles would still be hanging over U.S. Steel's head.

[Evan]

Ted: Your last comment is a technical point about post-judgment interest: assuming (a) the $200 million punitive award was set aside, (b) the judge entered judgment on the $50 million non-punitive verdict, (c) the plaintiff appealed the ruling on punitives, and (d) the appellate court reinstated the jury's punitive award -- in this event, would post-judgment interest be calculated based on the original $50 million judgment or the jury's $250 million verdict? I think interest would be calculated on the $50 million judgment, though I admit I haven't researched the point.

[Ted]

On further thought about the technical point, it would make sense that post-judgment interest would be on the judgment, rather than on the verdict.

However, as I review press coverage, I am increasingly convinced that Judge Byron never ruled on the punitive damages question, and Mr. Bono either misstated or you misheard a proposition relating to pending post-trial decisions regarding the punitive damages. Verdict Search is very thorough about noting when an award is reduced, and did not do so for Whittington.

[Evan]

Ted: I'm certain about what I heard. I think there might be some confusion in the press coverage because the case apparently ended at the end of the week and settled over the weekend or early Monday. In any event, there seems to be agreement among many sources that the case settled for less than $50 million.

About your charge of "forum-shopping," as expressed on overlawyered and in your comments here: Randy Bono, the lawyer who tried the Whittington case, addressed this charge at the event yesterday. He said the defendants in the case never asked to move it out of Madison County. The defendants were satisfied with Madison County as a forum, perhaps because of the uniform rules on asbestos cases that have been developed in the county over many years (and which are now used as a model elsewhere in the country).

I say "defendants" because the case involved others besides U.S. Steel, some of them from Illinois. By the time of the trial, only U.S. Steel was left in the case. Another Illinois nexus stemmed from plaintiff's allegation he'd been exposed to asbestos in Illinois.

[Ted]

Your opposition to my characterization of the case as forum-shopping is a bit of a non sequitur. That the plaintiffs engaged in clever legal backflips to get the case into Madison County and that the kitchen-sink defendants knew it was futile to try to get the case moved out of Madison County is evidence for the need for reform, rather than evidence against forum shopping.

[Dave]

To Ted:

If venue was proper in Madison County, why is there a need for reform? Who are you castigating when you say that the "defendants knew it was futile to try to get the case moved out of Madison County?" Is this a sinister plot of the judges to get cases tried in improper venues? If venue is proper, and there are not grounds to get the case moved because of an inconvenient forum, they why shouldn't the case be tried in Madison County?

[Dave]

To Ted, Round 2:

First, you really should enable comments on your site -- that would allow me to make these comments to you directly.

Your comments in your "Madison County now an asbestos magnet" post turn venue law on its head. Venue has nothing to do with the location of the plaintiff--it is about either (a) the location of a defendant; or (b) where the action arose.

735 ILCS 5/2-101. Generally. Except as otherwise provided in this Act, every action must be commenced (1) in the county of residence of any defendant who is joined in good faith and with probable cause for the purpose of obtaining a judgment against him or her and not solely for the purpose of fixing venue in that county, or (2) in the county in which the transaction or some part thereof occurred out of which the cause of action arose.

I still don't see the problem here.

[Ted]

Thank you, Dave. I understand Illinois venue law. I am making a normative, rather than a positive, statement about venue law. For starters, the "good faith" requirement could stand to have some teeth that it doesn't currently have. Better still would be a reform of the judicial system so that magnet jurisdictions would not be so distressingly common.

If you want to make comments to me or Walter directly, you're welcome to use the e-mail addresses provided on the overlawyered site. Like most high-traffic blogs, we don't have comments: it's an expensive bandwidth drain.