Evan Schaeffer's Legal Underground

IS ATLA ASHAMED OF ITS TRIAL LAWYERS? . . . Washington Wire confirms something I heard rumored last week: the Association of Trial Lawyers of America is considering a name change. I suppose the thinking goes like this: sure we're trial lawyers, but since everyone hates trial lawyers, we ought to call ourselves something different. Something with "justice" in the name, according to the account I linked, which I first saw at Overlawyered.

No one's asking me--and I won't be at the ATLA meeting in July to cast a vote--but I think it's an awful idea. It just seems too much like that Orwellian trick of distracting attention from the essence of things through clever naming: the Class Action "Fairness" Act, for example, or the phrase tort "reform."

It's a technique I complained about long ago in my post "Beware the Cynic Incubators." Is ATLA is going the way of the cynic incubators? Perhaps there's some other explanation I'm missing. Meanwhile, I wonder if name changes even work. Does anyone remember that the corporation called Wyeth was once called "American Home Products," but changed its name once it seemed the fen-phen crisis was over? Not really. American Home Products changed its name, but even as Wyeth it's still associated with fen-phen. Does anyone hear about the company called "Altria" and fail to think of cigarettes? Not too many, I bet.

This will be an interesting one to watch. Even if ATLA changes its name, I'll still be a fan of trial lawyers.

TORT REFORMERS LOSE A ROUND . . . In November, 2005, an article by Mimi Swartz in Texas Monthly got tort reformers  so worked up that they were practically foaming at the mouth. The article -- "Hurt? Injured? Need a Lawyer? Too Bad!" -- made the case that "[i]n voting in tort reform, people in Texas didn't realize they had given up their rights in the process."

Here's how the Austin Chronicle described the reaction by the tort reformers to the article:

Texans for Lawsuit Reform is fighting mad at Texas Monthly over its November feature on tort reform, headlined "Hurt? Injured? Need a Lawyer? Too Bad!" Authored by Executive Editor Mimi Swartz, the article focused on the potential impact of tort reform on ordinary people, which sent TLR into a rhetorical tizzy.

"As published, the article reflects little serious research and no serious analysis, but is long on bombast and wrong on the law, wrong on the facts and devoid of balance," according to the organization's 12-page diatribe against the magazine posted on its Web site. The group also charged that the magazine is a tool of plaintiff lawyers, noting the "154 pages of paid 'Super Lawyers' vanity advertising in the magazine's October issue."

"We expected a magazine like Texas Monthly to aim higher than republishing the disinformation of a special interest group whose direct stake in legislation ranges well into the hundreds of millions of dollars (or, in the case of its most opulent members, billions)," according to the group's statement.

Recognize the familiar lines of attack? The tort reformers were certainly hitting on all cylinders, attacking the article with non-sequitors like lawyers are too rich and anyone who disagrees with them must be a "tool of plaintiffs' lawyers."

I'm not sure how the attack made Swartz feel, but she must be feeling all right now, since her much-maligned article recently took first place in John Bartlow Martin Award for Public Interest Magazine Journalism from Northwestern University's Medill School of Journalism.

Swartz in good company. According to an account by the Houston Chronicle, "Previous winners for this prestigious magazine award include articles published in the New York Times Sunday Magazine, Newsweek, Time and the Village Voice."

Lest anyone think that the John Bartlow Northwestern University's Medill School of Journalism is just a tool for plaintiffs' lawyers, Swartz's article was also a finalist for an O. Henry Award from the Texas Institute of Letters and a 2006 National Magazine Award from the American Association of Magazine Editors.

Lest anyone think that I'm just a tool for plaintiffs' lawyers, please read this site's disclaimer and then decide for yourself.

AT MY TRIAL PRACTICE WEBSITE . . . "Miscellaneous Litigation Tip: The One-Box Rule."

WHAT DO LEGAL SECRETARIES DO THESE DAYS? . . . Even just a few years ago, it was rare that lawyers at large firms would use email to communicate with opposing counsel. But now this seems to be the norm, at least in my practice. There are some exceptions, such as lengthy letters about discovery or letters that might need to be attached as exhibits to a brief. But for the most part, email has almost replaced letter-writing, just as it has almost replaced making calls on the telephone.

For both phone calls and letters, there used to be a middleman--the legal secretary. The secretary would screen the phone calls or type up a lawyer's dictation into a complete letter. This still goes on, of course, but to a much lesser extent. Legal secretaries were also called upon to type briefs and other legal documents. These tasks are also being assumed by lawyers, at least the younger ones, who often write briefs themselves on their computers. Who dictates briefs anymore?

In my own practice, the legal secretaries are all but gone, replaced by paralegals, who have added typing the occasional letter to their job descriptions. My own practice is heavily paralegal dependent: paralegals can request and organize medical records, assist clients with discovery answers, review documents, and so on.

Meanwhile, while the large firms once had two lawyers per secretary, I bet the ratio is now closer to 4:1 to 5:1. Are there fewer secretaries than there used to be, or are they all just becoming paralegals?

TWO YEARS AGO AT LEGAL UNDERGROUND . . . "Types of Lawyers #5: The Lawyer Who Brings Her Breast Pump to the Office."

VIOXX'S 18-MONTH DANGER THRESHOLD: ONCE A MYTH, ALWAYS A MYTH . . . Since Vioxx was withdrawn from the market in late 2004, there's been talk that Merck's claim of an 18-month danger threshold was more myth than fact. For example, I did a post about it last year: "The 18-Month Vioxx Myth." In that post, I pointed out that a federal judge was allowing expert testimony that Vioxx can increase cardiovascular risks if used even less than 30 days.

Still, however, the 18-month myth persisted. It probably won't any longer. That's because on Monday, the New England Journal of Medicine ran a correction to the study that Merck was relying on for its 18-month defense. The Boston Globe reported the news this way:

In an action that could hamper Merck & Co.'s ability to defend itself against thousands of lawsuits, a prominent journal yesterday published a correction saying that it does not take 18 months of Vioxx use to increase heart risk.

Dr. Gregory D. Curfman , executive editor of the New England Journal of Medicine, said the journal took the unusual step "to make it completely clear to our readers" that suggesting someone needs to take Vioxx at least 18 months before suffering heart risk "is, in fact, a misinterpretation of the data."

What effect will the correction have on the Vioxx litigation? Some say that the news might increase the overall number of lawsuits, but I doubt it. Most Vioxx lawyers were already taking cases in which claimants used Vioxx for less than 18 months. Others say the news will affect the type of evidence that's admissible in a trial. This doesn't seem right either. Even before the correction, there were already many scientists who were rejecting Merck's 18-month defense.

If there are any lasting effects, it will probably be these: (a) the correction adds to Merck's credibility problems, as it appears that Merck's lawyers, who even now are sticking to their 18-month defense, are out of step with the weight of the medical and scientific evidence; and (b) such damage to Merck's credibility adds to the likelihood that treating doctors, who are important witnesses in every trial, will be more sympathetic to the plaintiffs' plight. The same may also be true of the judges who have to make initial determinations about the admissibility of scientific evidence in upcoming Vioxx trials.

There's been a lot of coverage of the NEJM's correction. Here are a few other takes:

• Los Angeles Times: "Journal Runs Correction on Vioxx: Analysis that tied risks only to 18 months or more of use was wrong, the publication says."
• Associated Press: "Lawyers Like Vioxx Correction."
• In the Pipeline: "18 Months to Trouble?"
• The Settlement Channel: "A few months of Vioxx can likely cause cardiac harm."

The correction itself can be found at the New England Journal of Medicine. My 42 previous Vioxx posts can be found here.

UPDATE: Ted Frank at Point of Law comments here.

AT MY TRIAL PRACTICE WEBSITE . . . "Notes on a Paperless Law Office by Ernest Svenson."

IS RON MOTLEY'S 9/11 LAWSUIT "LANGUISHING"? . . . To languish means "to become weak or feeble; lose strength or vigor." It's not a word that implies good things about a lawsuit. The following headline doesn't, either: "$1 trillion 9/11 case against Saudis is languishing 4 years after it was filed, 'very complicated' case is no closer to trial."

I admit to being an occasional observer of Ron Motley's 9/11 lawsuit. Not only is Motley the superstar plaintiffs' lawyer who was rendered larger-than-life in the Hollywood movie The Insider, but I know someone who works with Motley who told me about the 9/11 lawsuit before it happened. I thought it sounded completely nuts. But then again, I'm no visionary, and I've never been lionized by Hollywood. What do I know?

Not as much as Motley, apparently. But I do know an unusual and complicated lawsuit when I see one. That might explain why I pay attention to headlines about Motley's 9/11 action, including the one a few days ago that said it's "languishing."

As it turns out, the article doesn't back up the headline writer's claim that the lawsuit is losing strength. Except for the very old news that three members of the Saudi royal family were dismissed as defendants, the lawsuit rolls on. According to one lawyer working on the case, ""Hardly a day goes by in which there is not filing in the lawsuit."

Is that good news? I don't know. It does mean more articles about the case, which I can then link to from Legal Underground, satisfy my posting obligations, and head to work. That's not a bad thing, is it?

Related posts:

1. "9/11 Families Request Gov't Documents, Gov't Says No: Is It Really About Secrecy?" (4/27/06)

2. "The Legal Underground Podcast #39 (an inside look at the 1999 law drama "The Insider," with a focus on plaintiffs' lawyers Ron Motley and Dickie Scruggs)." (10/12/05)

3. "Ron Motley's 9/11 Class Action: Following the Money Trail." (2/13/05)

4. "'Wipe that Smirk Off Your Face!' and Other Things Plaintiffs' Lawyers Don't Really Say to Opposing Counsel." (9/6/04)

MONDAY MEANS BLAWG REVIEW. . . Blawg Review #63 is hosted by The Airport Lawyer. For information about next week's host, as well as instructions on how to get your posts reviewed in upcoming issues, see the Blawg Review weblog.

LAWYERS: DO YOU WANT TO BE A PODCASTING STAR? . . . At the Legal Talk Network, they know how to do podcasting. And now they'll do it for you, too, according to this notice that describes the Legal Talk Network's affiliate program.** (Note: pdf. Thanks to a reader for the link.)

Becoming a part of the Legal Talk Network isn't cheap: it'll set you back $2,500 in start-up costs, plus another $1,500 per month. But they'll take care of the technicalities for you, plus you'll have access to Legal Talk Network's audience.

As for me, I'm not signing on, even though my own podcast has been lying dormant since my April report of my trip to New Orleans. (My entire 48-podcast series can be found in the "podcasting" category.) I'm not quite ready to give up on podcasting. Rather, I'm spending my weekends doing other things while continuing to think about different formats. Although it would be fun to drum up interest among a wide, general audience of non-lawyers, I haven't hit on the magic formula yet. I'm still thinking about that.

Meanwhile, I'm also continuing to enjoy some of the admirable non-law podcasts that are free for the taking--for example, Filmspotting (f/k/a Cinecast), This Week in Tech, Diggnation, and the Slate podcasts. Like all podcasts, these are best enjoyed on an mp3 player rather than a computer. That way, you can keep mobile while you're listening: your podcasts will be there for you while you're commuting, exercising, or working in the yard.   

There's still lots of talk about the future of podcasting. Are podcasts just a fad? I don't think so. Listen to a few good ones and you'll understand why. Heck, you might even check out the Legal Talk Network if you have a chance. It features lawyers, of course, and you don't get any CLE hours, but it's still not bad. Just remember to sample it in limited doses--like all things law-related.

**UPDATE: Oops! Legal Talk Network removed the .pdf file from the Internet after I linked to it. I guess if you want more details, you'll have to talk to them directly.