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Comments

Ted

Absolutely nothing in the ATRA report (or even the St. Louis Post-Dispatch report on the ATRA report) says that there were no class actions filed in St. Clair County before 2002. ATRA merely compared the growth in the number from 2002 to the number for the first ten months of 2004, and noted that the numbers were almost certainly a result of forum-shopping.

The St. Louis Post-Dispatch does uncritically report Greg Shevlin's irrelevant counter-argument that St. Clair only tried two class actions. Because the purpose of filing a class action in a magnet jurisdiction is to force a settlement of an illegitimately certified class (and get the court to sign off on a lawyer-friendly payout), the number of class actions that are tried is not germane. So, indeed, "why do newspapers with long and glorious histories like the St. Louis Post-Dispatch allow themselves to be duped?"

Mike

Absolutely nothing in the ATRA report (or even the St. Louis Post-Dispatch report on the ATRA report) says that there were no class actions filed in St. Clair County before 2002.

Mr. Frank: That's very clever lawyering to use the word says instead of suggests. The article is constructed to have the reader infer that there were no pre-2002 class actions. In my Book of Ethics, that's misleading and therefore inappropriate. Indeed, Evan' writes that "[t]he report implies" there were no such claims. So, let's face Evan's argument. Does or doesn't the report imply that there were no pre-2002 class actions?

ATRA merely compared the growth in the number from 2002 to the number for the first ten months of 2004, and noted that the numbers were almost certainly a result of forum-shopping.

In other words, they cherry picked low numbers to compare with high numbers to support a previously drawn conclusion. IOW, they picked numbers to support their thesis, instead of carefull examining the numbers before reaching a conclusion.

Again, that type of argumentation does not comport with my personal or professional ethics.

Evan

Ted: Isn't the claim that St. Clair County is a magnet (or did you mean to say "magic"?) jurisdiction? If so, by your own definition, it's not one of those if lawyers are trying class actions.

On the other hand, I agree with you that how many class actions are tried doesn't mean much.

Ted

First, Evan states that ATRA "charge[d] that class actions are new to St. Clair Count." So there is nothing devious or sophistic in my use of the verb "says" as a synonym for the noun "charge." ATRA didn't make the charge that Evan refutes.

Nor do I think the ATRA report could be fairly read to imply that class actions are a new invention in St. Clair County. Certainly nothing in the St. Louis Post-Dispatch indicated they understood it that way.

Footnotes in the ATRA report show that they got the 2002 numbers from the Edwardsville Intelligencer, who got the numbers from the clerk's office. Did Brian Brueggeman of the Edwardsville Intelligencer cherry-pick? Even if they did (and I've seen no evidence of it) I somehow doubt that the number was 1100% higher in 2001 than in 2002.

Ted

On the other hand, I agree with you that how many class actions are tried doesn't mean much.

Evan: I think you mean you don't disagree.

It wouldn't surprise me a jot if there was a much better case to make that St. Clair is becoming a magnet jurisdiction. ATRA's argument on that score is decidedly circumstantial; I would prefer them to make the case that the courts are improperly certifying classes and approving settlements where the lawyers get the bulk of the value, rather than relying on the raw numbers. But, hey, "judicial hellhole" is their trademark, and it's up to them if they want to dilute it. ATRA makes a much better case for the hellholicity of St. Clair based on the medical malpractice lawsuit glut there.

Evan

Ted: Anyone who is interested in whether I fairly characterized the ATRA report simply needs to read page 19--specifically, the section that begins "Class Actions Arrive in St. Clair County." It is clearly meant to imply that class actions are a new legal creature in St. Clair County, and that these new creatures first arrived in 2002. But no one needs to take my word for it--the report is available as a free pdf link from my post.

As for ATRA diluting its trademark--you mean they didn't consult with you before publication?

Mike

Mr. Frank: Pretend you're back clerking for Judge Easterbrook. Are you going to view people who cherry pick numbers as credible? Or is the judge going to say to you, "Ted, figure out what these numbers really mean."

The report Evan links to is revealing. It reads: "According to St. Clair County court clerks, the county had only two class actions filed in 2002....[A]s of early October 2004, plaintiffs’ lawyers had filed at least twenty four class actions in St. Clair County during that calendar year."

Why did they pick 2002? Two years is not enough time to indicate a trend.

Another thought experiment: Let's pretend we're reading a federal law who text is slightly unclear. We'll thus look to the title of the law for guidance, won't we? Here is ATRA's headline: "Class Actions Arrive in St. Clair County."

So, the fairest reading of the report is this: Before 2002 there were only a couple class actions. But in 2004 class actions "arrived." Maybe ATRA is correct. But before I can determine this, I would need to see numbers from 1990-present.

Was there a good reason ATRA only cited numbers from 2002? Are earlier numbers unavailable?

Ted

Mike: the most likely reason for picking 2002 is because that's the first year that is readily available in easily accesible public records without doing further research. Again, it was a newspaper that broke the story about the increase in class-action filings in St. Clair County. The January 2004 article took the numbers from 2002 and 2003, and ATRA is free-riding off of that data, adding 2004 themselves. I don't see evidence of cherry-picking. If you want to track down the 2001 number, researchers everywhere would be grateful. (For what it's worth, I'm mildly skeptical of the newspaper's 2002 number--the Crown Vic case was first brought in 2002, for example, though it's not impossible that that was one of two.)

The 1100% increase is a red herring. It's less important than the obvious forum-shopping and the fact that the court there is certifying classes that don't meet the requirements of 735 Ill. Comp. Stat. 5/2-801. I know of one St. Clair case (brought by, inter alia, Texas and Mississippi lawyers) where the plaintiffs filed a flimsy twelve-page certification motion, amended the complaint three times, changing the scope of the proposed class in the process, and didn't even bother to update their papers until the morning of the certification hearing over the objection of the sandbagged defendants (who had also been stonewalled in attempts at class discovery). The judge granted the motion in a two-page boilerplate order.

Let's pretend we're reading a federal law who text is slightly unclear.

Yeah, but the section's text isn't unclear at all.

I agree that readers should look at page 19 of the report. I imagine that anyone with the interest in the subject to read all the way through to page 20 will have the background knowledge to understand that "an 1100% increase between 2002 and 2004" does not mean "Zero class actions were filed before 2002."

And if the worst thing about the report is that one line says "Arrive" instead of "Arrive En Masse" (which so far, is the only substantive criticism I've seen, as questionable as that criticism is), I'd say it's a probably a pretty good report--especially when I haven't seen any evidence that anyone was actually (as opposed to hypothetically) confused.

Evan: [Y]ou mean they didn't consult with you before publication?

I've been lobbying to be named a 34th-degree Mason so I can assume the position as head coordinator of the Vast Tort Reform Konspiracy and thus have final sign-off. But the sad fact is that I learned about this year's report when Google e-mailed me the link from the St. Louis Post-Dispatch Wednesday morning, and that the only section I've read yet is the one dealing with St. Clair County.

Ted

Of course, it will be interesting to see what the new Rule 306 does to the industry. And the Illinois Supreme Court has the power to rein in some of the abuses in a couple of cases pending before it.

Mike

Geez...do you think common sense will EVER prevail in this argument and somebody will figure out we need to get rid of the bad doctors??? Would solve most of the problems if their licenses would be yanked and they just wouldn't move from hospital to hospital. Hospitals don't even check to see if a license is real. Why didn't Bush or any of the other people who stand to gain from this issue's manipulation make a suggestion to get rid of the bad repeat offender butcher medical personnel? Guess that's too easy.

Ted

Hey, Mike,

Over half the doctors in Madison and St. Clair Counties have been sued in the last four years. I guess Southern Illinois is really unfortunate to have so many butchers, huh?

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