MY LITIGATION DECISIONS ARE CHALLENGED ON ANOTHER WEBLOG . . . Point of Law is a weblog written by advocates of tort reform, including Ted Frank. The Madison County Record is an amateurish newspaper owned, in part, by the U.S. Chamber of Commerce, another advocate of tort reform. Working together, these two publications can wind up and deliver one-two punches to lawyers working in the Midwest--that is, lawyers like me. An example follows.

In "Forum-shopping and Vioxx litigation," Ted Frank uses an article in the Madison County Record as an opportunity to criticize the decisions my firm has made in one of its Vioxx cases. Although Frank's post names all the plaintiffs in the particular case, which assures they'll be a little confused or embarrassed the next time they engage in any self-Googling, many other pertinent details are omitted: the legal basis for plaintiffs' claims, the plaintiffs' theories of recovery, the plaintiff's place of residence, an explanation of the Illinois rules on venue and joinder, an analysis of federal diversity jurisdiction and removal procedure, the governing precedents in the particular forums at issue, and the like. I freely admit that adding these details would turn a concise three-paragraph post, certainly entertaining to Frank's audience, into a sleep-inducing law-review article. But the lack of these details doesn't prevent Frank from concluding the case is "artificial," that the lawyers have engaged "forum shopping" that's wrongful, and that the lawsuit was designed with the hope of "confusing the jury" into reaching an incorrect result. Here are a few comments:

• Frank is criticizing a group of lawyers for acting in a way that is permitted under the rules. If these lawyers, including me, didn't act this way, we wouldn't be living up to our duty to do the best we can for our clients.
• I wonder if some lawyers would read a criticism about their work like Frank's and conclude that they've acted wrongfully. Perhaps their actions would be influenced in other cases. Certainly Frank knew I wouldn't change my behavior, even though he linked to this site. But maybe he was writing in the hope that at least some of the lawyers in his audience would be influenced to change the way they practice law. If so, I hope there aren't any lawyers who take the bait. Any lawyers who do should turn in their license to practice law. They aren't fit to represent real people with real problems.
• Finally, despite what others might think, Frank's subtle tone of moral condemnation doesn't bother me. It's exactly what I'd expect. That tone, familiar to readers of Point of Law and Overlawyered, is the best way advocates of tort reform have to persuade ordinary people to irrationally surrender some of their rights to big business. I do have one problem, however, with the tone. It gets in the way of genuine debate about problems with the U.S. civil-justice system. As readers of this weblog know, I think such debate is important. Not only do I engage in it myself, but I keep the comments open so that others can engage in it too. I lose interest only when the debate becomes polluted by unfair implications that lawyers who are following the rules are somehow morally or professionally corrupt. Good arguments shouldn't depend on such nonsense. I realize, however, that such nonsense is here to stay: many Americans, not knowing any better, find it very persuasive.
  

Comments

[Stan]

I am not surprised by this either. However, that doesn't make it any less repulsive.

[John Day]

Ted: Do you agree that it is the obligation of a lawyer to zealously advocate for his client within the bounds of law and ethics? Do you agree that a defense lawyer who has a right to move a case to federal court should not be criticized for doing so, even if the lawsuit was appropriately filed in state court that had jurisdiction and venue under state law? Do you believe that moving the case to federal court under those circumstances is forum-shopping?

[Ted]

Evan hasn't accurately characterized my post, but I'll respond on Point of Law some time in the next four days.

[Stevo]

Ted-
It may take you more than four days to figure out how to cast Evan's post as a mischaracterization of yours. I followed his link to your post, and sure enough, you wrote exactly what he said you wrote.

[David Giacalone]

Evan, When I originally read Ted's post, I thought he was complaining about the way the system works (what it allows) much more than about the lawyers. After reading your post and then re-reading Ted's I still feel that way. Of course, we first "met" when you took my criticism concerning contingency fees more personally than it was intended. There really is a fine line to walk, and you're right that it is particularly hard to do so in the context of a weblog, where staying short and punchy and opinionated is considered a virtue.

In the context of an adversarial legal system, I think a thick skin is important -- especially when having a thin skin makes it look like you might be trying to win points by attacking the other person rather than addressing the policy issues.

It's a tightrope shaped like a vicious circle.

[Evan]

David: I look forward, of course, to Ted's post explaining why my post was wrong. As for your own analysis, your use of pronouns is a little confusing, e.g., "especially when having a thin skin makes it look like you might be trying to win points by attacking the other person." I hope you don't think I'm attacking Ted personally. I went out of my way, I thought, to comment not on Ted but on Ted's analysis and his tone. It's true I have characterized both Ted's analysis and his tone--or "mischaracterized" it, as Ted might say--but his post is linked right on the page and it's easy for anyone to read it and draw his own conclusions.

Ted, I think, writes about tort reform because that's part of his job. That's one reason anyway. I also believe he is very sincere about his beliefs. But he's also a very skilled writer (where "skilled" includes the ability to persuade by rhetorical manipulation), and Ted uses these skills famously when he's writing about tort reform. I thought his post was a good opportunity to make a point about a particular method of writing about tort reform that stands in the way of any progress in the so-called tort-reform debate. That's the method of writing described in my post, the one that relies on "unfair implications that lawyers who are following the rules are somehow morally or professionally corrupt."

It's my belief that this method of writing, for tort reformers, is an end in itself. It's the tone that's the real message, not the factual details of cases or rules.

Anyway, after I read your comment, I too went back and reread Ted's post, and I don't agree with you that it contains only a little complaining about the lawyers. In fact, I could write a lengthy textual analysis of Ted's extremely capable writing style and the way it is designed to insinuate negative things about the lawyers who filed the case under consideration. Such a textual analysis would be a fun exercise, but it probably wouldn't be too interesting to anyone but me.

In lieu of the analysis, however, consider a single sentence from Ted's post, chosen from among others sentences suitable for analyzing: "The only reasons for this artificial hydra of a suit are forum-shopping and the hope of confusing the jury into ignoring the individualized medical circumstances, and thus bypassing serious inquiry of causation." This sentence implies, first, that the plaintiffs weren't truly injured by Vioxx, and second, that their lawyers, who took on their frivolous cases anyway despite this obvious flaw, will succeed only if they can find a way of confusing a jury into looking at something other than causation. That's a bold statement to make without knowing anything about the individual facts of the particular cases. In addition, the term "forum shopping" contains its own arch implications in the lexicon of tort reformers.

Are you still not convinced that Ted's message is more about the lawyers than the details of the existing rules? If so, we can agree to disagree.

[David Giacalone]

Evan, (1) I wasn't accusing you of a personal attack on Ted, because I don't think you do that sort of thing. I did say that taking personal affront at what was said (here, at the "tone" and "moral condemnation"), rather than responding to the merits of the policy issues, makes it "look like" the affronted person is shifting the focus to the other person (or that person's tactical choices) rather than the merits.

(2) The crux of the sentence you've chosen from Ted's piece seems to be making sure every plaintiff's case is subjected to a serious inquiry into causation. It's not saying that none of the plaintiffs are injured or that every case is frivolous. And, it certainly does not claim all of the lawyers are "ethically or morally corrupt."

No one goes to Overlawyered.com or Point of Law expecting an unslanted perspective (some want that slant; some, like myself, expect accurate and fair analysis within that perspective). Because you (and every lawyer "fit to represent real persons with real problems") know you haven't violated the ethics rules by picking the most advantageous forum for nonfrivolous lawsuits, I think that being defensive serves very little purpose, and makes you look -- well -- too defensive.

[Ted]

I've responded on Point of Law, though in much broader terms than just this particular suit. David Giacalone is correct that the original post is addressed to the policy issues, rather than to the lawyers; the mention of Evan was trivia, rather than the focus of the post.

[Matt]

David, I think you overestimate the general public's understanding of legal issues. Many in the public believe that Overlawyered is giving it to them straight. They don't know that the main contributors to that site primarily represent corporate America and that the site is essentially an advertisement for tort reform. They truly see Overlawyered as an accurate, unbalanced assessment of the American legal system.

I think we as lawyers forget just how well a legal education teaches one to recognize both sides of every issue or claim. And how many in the general public take much of what they read at face value. We've all seen it with our own clients - their own faults and weaknesses are hardly noticed and quickly brushed over, but the other side's are evidence of just how evil they are!

[Matt]

Ted,

I noticed in your response you seem to focus quite a bit on what is good for society, as opposed to representing the particular client and doing what is in their individual best interest.

I'm curious, how does one make that determination as to what action has the most societal benefit? Is it most economic benefit? Spiritual benefit? Or did I misunderstand you?

[Evan]

Ted: I read your response at Point of Law. Thanks for addressing some of my criticisms of your post. A few points. I used your post to make a larger point about the writing style of tort reformers. I could (and probably would have) made the same point whether or not I was involved in the case you wrote about. I think I'll make it again in the future the next time I have an opportunity. It doesn't matter, in other words, whether or not your post was "about" me or other lawyers I work with.

As for your comments about the Madison County Record, I didn't say its article was amateurish, I said the newspaper as a whole was amateurish. I didn't explain that except to link to a past post. The problem is that the paper rarely gets the facts right. Last month, for example, it took a quote from the weblog of Schaeffer's Investment Research about Philip Morris and attributed it to me in an article. They corrected the error after I told them about it. I've noted other errors on my weblog, but usually I just keep my mouth shut. My advice is to think twice before relying on anything reported in that article. The first paragraph of the article you relied on in your post, for example, contains a factual error. Later, it fails to inspire confidence with sentences like this one: "More than 4,000 product liability lawsuits have been filed against Merck since the pharmaceutical pulled the drug from the market a year ago." Merck is not a pharmaceutical, it's a pharmaceutical company. And so on . . .

[David Giacalone]

Matt, Actually, I hope we leave law school knowing there's always more than two sides to every issue.

You might make my point for me when you say "We've all seen it with our own clients - their own faults and weaknesses are hardly noticed and quickly brushed over, but the other side's are evidence of just how evil they are!" Most human beings already know what they want to hear from a lawyer or from a weblog, and tune out the rest. My feeling about the blawgisphere is that the members of the public who find our websites expect spin.

p.s. It's difficult to read the top of Overlawyered.com homepage and conclude "this guy likes lawyers and the legal system."

[Brian J. Smith]

There are at least three sides to an issue: Plaintiff's side, defendant's side and the truth of the matter. Often, these three sides are mutually exclusive.

[Ted]

With respect to the amateurish decision of the Madison County Record to call a "pharmaceutical company" a "pharmaceutical," it's worth noting that the New York Times did the same thing today.

Not a usage I would personally recommend, but I can see why it's done.

[Evan]

Ted: Are you talking about this line: "Ms. Stockl, a pharmaceutical executive from the Upper East Side of Manhattan"???

Isn't that an appropriate usage? The Madison County Record used the word "pharmaceutical" as a noun to mean an entire company, to wit, "More than 4,000 product liability lawsuits have been filed against Merck since the pharmaceutical pulled the drug from the market a year ago."

[Ted]

The more I think about it, the more interesting this post and its associated comments become.

1. There are accusations of "Unfair" and "nonsense", but also praise of "very skilled writer" and "extremely capable writing style," though the latter two, I think, are deployed to engender sympathy for the author rather than praise for his adversary. It's an interesting switch, however; at the AEI event, Evan responded to every complaint about unfair trial tactics with the trope that Merck was well-defended by professional attorneys and the jury had the opportunity to weigh both arguments. So why is it so insidious if I'm persuasive that such tactics are bad? Are voters and policymakers more easily tricked than jurors?

2. Missing from Evan's analysis is any discussion of the larger question of whether the challenged tactics are, working from a blank slate, optimal ones that make society as a whole better off. Let's assume arguendo the question of whether a lawyer has a non-frivolous (in the technical, rather than rhetorical, sense of "frivolous") argument for any of them. Still:

a) Is society better or worse off if a plaintiff has a cause of action against a pharmacy when it correctly dispenses a prescribed drug pursuant to the terms of the prescription?

b) Does a legal system function better or worse if ten unrelated plaintiffs with ten different medical histories and ten different individualized issues of causation from ten different places are allowed to try their different facts before the same jury (sometimes applying different laws for different plaintiffs) at the same trial without bifurcation?

c) Skip the federal vs. state jurisdiction question for the moment (though I think Federalist No. 80 is irrefutably persuasive on that public policy question). The Madison County Record reported that the complaint that "Venue is proper in this court because seller defendants have offices or do business in St. Clair County." Was this not a complete statement of the grounds for venue in St. Clair County for at least one of the plaintiffs? If it was a complete statement, is society better off because a plaintiff can forum-shop at will for his favorite county, rather than restrict his suit to venues where the plaintiff resides or where the injury occurred or where the alleged wrongful conduct occurred?

(Separately, I could swear I've seen other publications use "pharmaceutical" as a noun to mean "pharmaceutical company," but the issue isn't important enough for me to do the legwork to find it, especially since I don't disagree with Evan that I prefer the more precise style. Then again, "flammable" still bothers me, as does the fact that "just desserts" is used more often than the correct spelling.)

[Matt]

"Are voters and policymakers more easily tricked than jurors?"

Voters, yes, for the most part. Not due to ignorance, but time constraints. Policymakers, no, but they are more susceptible to influences that have nothing to do with the facts of the issue.

And Ted, do you really want to make the "is society better off" question your basis for determining if people should be entitled to pursue a civil action?

[Ted]

Ted, do you really want to make the "is society better off" question your basis for determining if people should be entitled to pursue a civil action?

I'm willing to be persuaded why this isn't a good test for categories of (as opposed to individual) civil actions, but my first reaction is that it is. (For example, a guilty murderer's challenge to an unconstitutional trial procedure may flunk the individualized test because society is better off locking away the murderer than going through a second trial, but the category of challenges to unconstitutional trial procedures is beneficial as a class, even if the individual case may not be, so I don't oppose such challenges.)