MY COMMENT AT TED FRANK'S OVERLAWYERED . . . Boy, what went wrong? Just two days after Ted Frank and I both asked our readers to be polite in the comments, Frank has used something an Overlawyered reader dug up about me and posted in the comments on this website to skewer me on Overlawyered like I'm a regular old Fred Baron or Willie Gary. Wow.

Here's Ted's post. After linking to an article about me that I had already said on this site was factually inaccurate, Ted used it to draw some conclusions about one of my old lawsuits:

[Quote removed because Ted took down his post--Evan]

Here was my reply to the post in a comment on Overlawyered--

[Quote removed because my reply doesn't make sense once I removed Ted's quote--Evan]*

Shocking, or not? Perhaps all that money being shoved into a lawyer's mouth in that billboard is really getting some people worked up. Or is it my weblogging philosophy that's all wrong? I want to have a weblog that has comments so that readers can interact, and I feel so strongly about welcoming opposing opinions that I even decided not to delete some personal attacks on me last night--a decision that led directly to Ted's post.

Maybe I'll have to reconsider my approach to comments. And though I'm a little flattered that Ted has now inducted me into Overlawyered's pantheon of the-most-notorious-trial-lawyers-ever, I really don't believe that old yarn that all publicity is good publicity. So I think I might be more miffed than flattered.

Does anyone think I should ask for my coffee mug back?

*Although I amended part of this post after Ted Frank removed his post from Overlawyered, I'm going to keep the rest of it here to preserve the comments, in which readers spent time continuing the discussion about the lawyer billboard and other topics. If anyone disagrees with my selective editing of this post, please let me know in an email. I don't know if there is a lot of past weblogging precedent for me to follow.

Comments

[Eh Nonymous]

No, you don't have to ask for your mug back. In fact, you can't. It was a gift. Or possibly an apology. :) You can take back the apology but not the gift.

With due respect to Ted, I observe some similarities between the way he "described" the offensive facts of the case, and the way people use the Liebeck suit (and here I am thinking of the lightpost-statistics quip, about support rather than illumination). That is, lots of aspersions, assumptions about how egregious it was, and a disregard for what happened in the courtroom.

Your comment was miffed, and probably less than polite, but I can see why.

I just hope this doesn't interfere with the beautiful working^H^H^H^H blogging relationship you and Ted have.

[Ted]

I've responded in full on the site. Except for the part about the coffee mug, which I never did get...

I'm sorry Evan's offended that I used a case he was involved in to demonstrate underlying problems with the class-action system. The Madison County Record regularly publishes corrections, and none was published for that story, so I reasonably presume that it's correct. But Overlawyered also regularly publishes corrections, and will be happy to do so should we have been wrong to rely on a published newspaper story. (Did the MCR make up the $940,000 number? Or are they confusing it with the total of fees and costs or total fees for all class counsel? Is there a typo? I'm curious what's so wrong about the MCR number that can't be corrected with a handful of keystrokes instead of an indignant post.)

As politeness goes, I further note that my post is considerably milder than the offenses I'm repeatedly accused of in your comments section that would merit firing if they were true.

[Evan]

Ted: My comment at Overlawyered, which you graciously posted, can stand as a correction. A second correction, that is, since I already made it clear that you were relying on bad information before you did your post.

Sorry about the coffee mug. I don't think you mentioned when we met that you hadn't received it.

[Telly]

Evan, you've got the facts. Why not disclose them in the interest of this debate and in the interest of your reputation? Your excuse for not doing so seems flimsy.

[Evan]

Ted: You also mentioned on Overlawyered that I allow people to attack you here. Here's how I responded, for what it's worth:

Are you saying this is tit-for-tat? ("Compare: NfLU"). You've been participating in the comments at Legal Underground for years, even though you know my general policy of not removing comments. You also know, because we've discussed it, that I don't think anyone has engaged in repeated personal attacks on you. Meanwhile, whatever commenters have written in response to you, I think you're fully capable of defending yourself. In fact, that's one of the thinks I like best about you. I remain baffled.

[Ted]

And even as I posted my 5:10 PM CST comment, I didn't notice that Matt repeated his malicious and false defamation at 4:25 PM CST.

That's not a threat of suit, because I'm not going to sue you or Matt; it's not worth my time. But nothing I've done comes close to Matt's repeated attempt to say things that would get me fired when he knows they're not true in response to every single one of my comments. In comparison, I don't let people use the heckler's veto to drive away commenters. And I still don't see any evidence that anything I've said isn't true.

[Evan]

Telly: My reputation? I obviously don't concern myself too much with what tort reformers think about me. It's one of the reasons I didn't bother responding to the Madison County Record--it's funded by the U.S. Chamber of Commerce. Anyone who takes that newspaper seriously wouldn't think much of my reputation in the first place--I'm a plaintiffs' lawyer!

[Matt]

I'm sorry Ted, what have I said that wasn't true? You have an awfully thin skin for someone who routinely tosses verbal grenades at other lawyers, litigants, and judges like you do. What's the old saying - good for the goose. . . ?

[Ted]

(I didn't see the 5:17 comment when I made the 5:18 CST comment.)

No, Evan, it's not "tit-for-tat." It's a reflection of the fact that I can't participate in your comments section without one of your regular commenters using the opportunity to draw me into a collateral debate over whether I comply with AEI ethics policy by making baseless and false accusations. (NB that in that case he had no interest in the underlying discussion, and simply wanted to attack me, only responding to my substantive point as an afterthought.) I thus have to use my blog to engage in the debate. It's not interesting to me to repeatedly deny false accusations that are being made solely for the purpose of harassment, so I participate much less in your blog, and invariably regret it when I do.

Furthermore, in this case, Jeff asked interesting questions about class actions that struck me as being of general interest, and were worth discussing in a context beyond your comments sections, since most of my readers would give up after the first dozen David Behar comments. If something's worth my time writing, it's worth being posted where more than a dozen people will read it.

With respect to my "Compare" statement, I don't allow my comments section to be used for harassment. You show a lot more tolerance for off-topic comments than I do (I don't hesitate to trash-can a substantial portion of David Behar's nonsense on OL), and I respect that, but, whether or not I can defend myself, it's not worth my time to do so when the person attacking me has no interest in legitimate discussion.

[Max]

How much did Ted or his organizations receive directly or indirectly from insurance companies or businesses with high litigation/tort costs? How much has Ted or his family members recieved from tort suits or settlements?

If Evan's source of income is so vitally important to understanding the tort debate, why isn't Ted's?

Even assuming Evan did participate in a frivilous suit with unreasonable attorney's fees, the only purpose of that information would be to personally discredit him. So, in the interest of fairness, we should be able to personally discredit Ted, representing the other side.

Or perhaps we should conduct social policy debates in a different manner?

[Evan]

Ted: I think there is something fundamentally wrong about publishing something on Overlawyered you have been put on notice is inaccurate by the subject of the article--that is, me--and then taking the position that you’ll continue to assume it’s true until I choose to correct it. There’s even a word for that type of conduct, but I’m not going to write it here. Why escalate the rhetoric?

With that said, there is nothing at all that troubles me about that particular SBC case, which went on for years, and in which I achieved an outstanding result. So while I don’t want to give into your baiting, I wouldn’t have any problem discussing the case when I can do it in a proper post, rather than a comment.

Of course, the facts of the case probably aren’t going to satisfy you or many other Overlawyered readers. I’ll still be perceived as one of those trial lawyers who “got fed.”

I’ll think about doing a podcast in which I discuss the SBC case at length. I haven’t made up my mind, but I'm always trying to think of ways to get people to listen to podcasts.

[Ted]

Max writes: Even assuming Even did participate in a frivilous suit with unreasonable attorney's fees, the only purpose of that information would be to personally discredit him.

No, the purpose of that information is to show a problem with the status quo that enabled millions of dollars to be spent that way.

I don't care whether Evan gets his income from frivolous litigation or from being independently wealthy or from winning poker tournaments: it wouldn't make his positions any more right or wrong. His arguments stand or fall on their own merits, as do mine.

I turned down a job offer Tuesday night that would've more than doubled and perhaps tripled my salary; we didn't get into a serious discussion on dollar figures. In opportunity cost, I'm paying a substantial sum for the privilege of doing what I do.

Evan, with all due respect, you've now made seven comments and a lengthy post complaining about the accuracy of a Record article that could've been corrected with a couple of sentences. Telly's right: your excuse is flimsy, and a reasonable jury would draw the adverse inference. All I can do is report both sides of the story, and let readers decide which one is correct.

[Ted]

Evan: again with all due respect, it's not just the Record:

"Lawyers In Line For Hefty Suit Fees, Customers Could Get $10"

EDWARDSVILLE - Illinoisans overcharged when directory assistance connected them to a phone number could get a $10 phone card or a few free directory assistance calls.

Plaintiff attorneys in the class-action lawsuit would get $940,000.

Those are the conditions of a settlement given preliminary approval Monday by Madison County Circuit Judge Phillip Kardis in a 4-year-old lawsuit against Ameritech, now SBC.

(Belleville News Democrat, September 29, 2004)

[Matt]

Ted,

I'm still curious - which of my statements are false? Did you or did you not question or attack the judge's credibility based on the fact she had represented plaintiffs in the past?

[Supremacy Claus]

Evan: Please, do reconsider your policy on comments. Try replying to simple questions from the public.

Do you support legislation permitting legal malpractice lawsuits by adverse third parties?

Would you support legislation defining a lawsuit as a product?

Those are simple Yes-No questions.

[mobar]

I'd love to hear a podcast detailing the SBC suit... and I never listen to podcasts. I took a class on complex litigation back in school, and although I'm generally supportive of the class action mechanism I find coupon settlements disturbing. (I should clarify that I don't have a problem with them if the overall result is to cease the offensive behavior that got the company sued to begin with.) I would like to hear some details about the suit, and Evan's explanation of why he believes it was a worthwhile result. Not because I'm skeptical that it could be, but because I haven't made a hobby of tracking down worthwhile coupon settlements. I just know the crap I've recieved in the mail has been ridiculous.

I understand Evan's reticence to discuss the details. I'm very careful not to post revealing details about my cases, and I post anonymously. And one thing, of many, that I've been struck by in the comments of the past week is how the hostility of the anti-lawyer group inhibits an honest discussion of the issues. I wouldn't blame Evan for not doing the podcast, but I'd appreciate the honest discourse.

[Supremacy Claus]

Found your reply. Much appreciated.

"So to answer your questions, no, I wouldn't support the legislation you propose. First, since I don't represent the other side in a lawsuit, the concept that the other side could sue me for legal malpractice doesn't make logical sense. There might be some better name than "legal malpractice" for what you are trying to accomplish. Second, since a lawsuit is not conceptually a product by any stretch of the imagination, I think passing a law defining a lawsuit as a product also wouldn't make logical sense. Even if you did that, I don't think that the body of law dealing with products and products liability could be made to apply to lawsuits."

Evan, do you have any duty of due care to the adverse third party, enumerated in the Rules of Civil Procedure, the Rules of Evidence, the Rules of Conduct, and the general standards of professionalism as attested to by lawyering experts? The answer is, heck, yes. Your duties are express. Why can't they be enforced in a negligence claim? This is not loser pays. This is loser pays for deviating from professional standards of due care. Compare the long list of express duties in the law, to the good ol' boy gentlemen's agreement to preclude any justice to the adverse third party victim of the negligent lawyer. Remember, this works both ways. A plaintiff might sue a defense attorney for a negligent error. If a defective car strikes a pedestrian, can the car maker claim privity only with the driver? No. How is this lawyer privilege of immunity from a tort claim justified by any stretch of the imagination.

If you review the ordinary dictionary definition and the legal definition of a product, if you review the definition of a product in patents, in the Restatements, the lawsuit qualifies as a product by a wide margin. When we say, "dictionary definition," that is not just nice. The Supreme Court has asserted 100's of times, the dictionary definition rules the meaning of words. It is the uncontroverted law.

Rummage here:

http://dictionary.reference.com/search?q=product

For a legal discussion of "product":

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=231176#PaperDownload

For example, is it man made, portable, for the purpose of making money, to achieve some valued purpose, belongs to someone, etc. ? Find me any aspect of a definition of a product that does not fit the lawsuit complaint? You should be able to patent the claim that results in a precedent were it not for cult interference.

My feelings were hurt when you misinterpreted my attempt to look out for your welfare as negative. I am a rare person who will tell you the truth to protect you from vipers. I was just upset about what was done to you.

[Ted]

Ted, you know it's never that simple. Using the opposing advocate "as an example" always speaks to their credibility. Unsurprisingly, you evaded my question regarding your own income from insurance companies, businesses with significant litigation, or your own tort suits. Yet you press Evan to detail one of his own cases in public, knowing full well that even the most vocal lawyers are naturally reticent to discuss their cases in public.

I have no idea about Evan's settlement. I've never met the guy, nor have I met you. But if you want to troll around the internet for damaging information about someone for discussing the tactics used by anti-tort advocates, well, someone might wander over to the AEI and find this:

http://www.aei.org/scholars/scholarID.101,filter.all/scholar.asp

Then they'll notice were counsel at O’Melveny & Myers.

Which says on its website:

"O'Melveny & Myers has earned a reputation among insurance companies and policyholders alike as a firm that produces first-rate work, delivers results, and successfully handles precedent-setting trials and appeals."

Oh. Ted, did you work on any of these cases? Could you explain to us what settlement offers were made by plaintiff's counsel, and, if you ever rejected any, on what basis they were rejected? Would you be willing to provide a detailed explanation as to why you rejected those amounts given the harm and causation known to you? Could you also tell us about the times where you felt your insurance client was being unreasonable in litigating a case in which the insured had clearly caused grevious injury?

Of course not. That's all confidential and irrelevant to some billboard. But that's what you want Evan to dish up before he's allowed to complain about a billboard that insults our profession and the jury system without having his credibility questioned.

[Max]

As if you couldn't tell, that last post aimed at "Ted" was authored by "Max," not "Ted." I must have started typing right at the Name box...

[Evan]

Ted: Surely you can see that the three paragraphs you quoted in your comment from the Belleville News-Democrat, which are essentially correct, say something different than The Madison County Record, which was the article you relied on in your post at Overlawyered after I said the article was incorrect. According to the Madison County Record, I received all the fees personally. Unfortunately, I didn't. The Record's misreporting allowed it to make a point about "millionaire lawyers residing in an out-of-the-way place like the Metro-East." By the way, this was all more than a year ago. It's coming up now only because an Overlawyered reader posted about the Madison County Record's incorrect article last night in a comment, and you kept it going today. Newsworthy? I guess you think so.

As you know, you can't tell much if anything about a case merely from the amount of the attorneys' fees. As I wrote earlier, perhaps I'll explain in a later post or podcast what the case was about. You probably noticed from the Belleville News-Democrat article you found that you were wrong about some of your other, more important assumptions about the case--what it was about, as well as the relief to the class.

Good googling on your part, though--it appears the article you found is now available in abbreviated form (just a couple of paragraph from a longer article) only at the Illinois Civil Justice League, a tort reform organization, and not at the News-Democrat. I disagree with you that a case as complex as the SBC case, which lasted four years or so, can be summed up "in a couple of sentences," as you said. I also disagree that "[a]ll [you] can do is report both sides of the story, and let readers decide which one is correct"--no, you can do a little more than that. The only side you reported was one that you knew was wrong, and you told your readers that side was correct. That's my view anyway.

[Ted]

Ted, did you work on any of these cases?

One: I briefly consulted on some antitrust issues in a case brought by an insured against an insurer. I never spoke to the client, was uninvolved in any settlement negotiations, and uninvolved in the ancient insurance-law decisions from which the suit sprung years earlier. For that matter, I don't even remember the client's name--I'd have to look it up. It was the only case where I represented an insurer against an insured, and it comprised well under 1% of my legal career.

I did, however, represent several insureds against insurance companies when I was at Irell & Manella. I also briefly represented a doctor who was sued by an insurance company for insurance fraud. (In fact, excluding a civil-forfeiture case brought by the government, the majority of my Irell practice was plaintiff-side work. So was about a third of my brief Kirkland practice.) Even adding in my work for an HMO on a third-party payor set of claims, all in all, I put in more work adverse to insurance companies than on their side. I've been critical of insurance companies on Overlawyered when they merited it.

Evan is perfectly entitled to complain about whatever billboard he wants. He hasn't sought and doesn't need my permission. My disagreement with Evan stems from the fact that I think that he's wrong, not that I think that he's tainted by financial considerations. I admire Evan's financial success, as it requires a good deal of chutzpah and skill; I just wish those talents could be used for good, rather than for ultimately destructive ends.

Using the opposing advocate "as an example" always speaks to their credibility.

I used the case as an example, not the advocate. Evan has posted about cases I've worked on, which is his right.

you press Evan to detail one of his own cases in public, knowing full well that even the most vocal lawyers are naturally reticent to discuss their cases in public

The only reason I know that it's Evan's case is because he gave a statement to the Belleville News-Democrat about the case, a newspaper that probably has a wider circulation than this weblog.

If Evan said confidentiality concerns prohibited him from discussing the case, that would be one thing. The settlement is public, and we haven't asked for more than public details, so that's not the bar to the discussion.

[Evan]

Ted: Not that it's all that pertinent, but when did I post about cases you've worked on?

[Supremacy Claus]

Evan: I actually have far more hope in your responsiveness than in Ted's. When you boys are finished about who said what, what said who did what, who does not care one whit about what said who, really, perhaps, you could address the only lawyerly message here from a member of the public.

Again, you have express duties in statute. You have self-dealt immunity in common law. What gives? Again, why do you oppose lawyer malpractice availability to the adverse third party legislation? One of clauses would also mandate the purchase of a $5 million policy for the renewal of every license. For the class action attorney, the amount should be $50 million, reflecting the size of the damage potential of his professional negligence.

Then the lawsuit is a product by every conceivable route. Why is the lawsuit exempt from the law? Again self-dealt immunity.

How about an upgrade of this thread to some lawyerly riposte? Come on, I am a civilian. You boys can easily dispatch my naive proposals.

[Ted]

Not that it's pertinent, but I worked on jurisdictional issues related to McQuay v. Merck.

As you know, you can't tell much if anything about a case merely from the amount of the attorneys' fees.

I disagree. From attorneys' fees of $940,000, I can tell that nominal relief to the plaintiffs was between $1.9 million and $4.7 million (probably closer to the smaller number in Madison County), and that, because opt-in coupon relief was involved, the realized value to the class of the settlement was somewhere between $100,000 and $1 million, with the distribution skewed towards the smaller numbers. And because I know how much it costs to try a case, and have some familiarity with the process of Illinois appeals, I can further infer that this was very likely a nuisance settlement that took four years because it took about that long for upper courts to decide not to reverse the class certification on interlocutory appeal and/or the lower court to deny the summary judgment motion. I'd say there's about a 95% chance I'm right on the first two questions, and an 80% chance I'm right on the last two.

[Ted]

P.S. Check your email.