Beyond the Underground

Practice Tip: When Choosing an Expert, Try to Find One Who's Not in Jail

Today's case update from the Illinois Bar Association brings news of Cothren v. Thompson, in which a medical-malpractice lawyer argued that he couldn't get his expert affidavit filed in time because his expert was "unfortunately incarcerated" in Pennsylvania and was "difficult to communicate with" while in jail.

The appellate court's rejection of this argument relied in part upon what the British call "understatement"--

[P]laintiff has failed to establish good cause in the late filing of the required documents. The fact that plaintiff's attorney chose an incarcerated health professional to determine if a meritorious cause existed and had difficulty communicating with him because of his incarceration does not amount to good cause.

Noted.

Goodbye Johnnie Cochran

From Yahoo News: "Superstar Lawyer Johnnie Cochran Dies," by Linda Deutsch--

Johnnie L. Cochran Jr., who became a legal superstar after helping clear O.J. Simpson during a sensational murder trial in which he uttered the famous quote "If it doesn't fit, you must acquit," died Tuesday.

He was 67. Cochran died of a brain tumor at his home in Los Angeles, his family said.

Back in September, I posted this news about Johnnie Cochran: "Johnnie Cochran Is Recovering From Brain Surgery, According to the New York Post." Today, a commenter note, "Most news articles say that Johnnie died of an inoperable brain tumor. Did he have a biopsy at Cedars-Sinai or an operation? What kind of brain tumor did he have?"

The answer is that I don't know. But the news is unfortunate; all indications were that Cochran was going to recover.

My thoughts go out to the lawyers and staff at Cochran 's offices around the country, some of whom have corresponded with me during the past year about my many posts about Cochran. I teased incessantly; they were always the best of sports.

UPDATE:  Ted Frank of Overlawyered.com writes about Cochran here.

[Below the Fold: Related posts]

Tip for Litigation Attorneys: Make Sure You're Really Off the Record Before Turning to Another Lawyer to Say "I'll Fucking Kick Your Ass"

In addition, it's always bad form to call your opponent's law firm and threaten to kill one of their lawyers.

Did something like this really happen? Some Texas lawyers and law-firm staff are saying it did. You can read about it here (pdf).

While I will refrain from editorializing, I would like to add that I read through the deposition I just linked to, and it appears the trouble began when the targeted lawyer began laughing at the muy-macho lawyer's deposition questions. That threw the muy-macho lawyer off track and led to the later threats of violence.

As a public service, I offer a post from my other weblog that addresses this very problem: "Ignore Your Opponent in a Deposition."

Defense to Plaintiff: How Hard Is It to Switch Sides?

Overheard while lurking in the Texas part of the Greedy Associates discussion boards: an analysis of whether it's possible for a defense lawyer to become a plaintiffs' lawyer and still make a decent living.

One Point of View: "Assuming you are a litigator, tort reform has crippled plaintiff's practice. Hanging out your own shingle is more difficult than ever before. Unless you have an established reputation, you'll find very little business 'coming in the door.' You'll need to market yourself extensively. If you can survive and thrive, all the power to you."

And Another: "Success on the other side is not nearly as hard as you might expect. I dumped the big firm lifestyle about 7 months ago after about three years of big firm drudgery and would never look back. Lawyers are terrible marketers, and the field is wide open to bring in more quality clients than you could possibly handle with just a little marketing savvy. Money has not been at all an issue, and I am now in the market for an associate and legal assistant to help me pull my head above water so that I can stop turning down the quality cases potential clients want me to take."

As someone who successfully switched sides, I think the truth lies somewhere in the middle. The best opportunities come to those who are owners of their own firms, but many are unable to assume the risk of giving up a certain salary for an uncertain future. And for plaintiffs' lawyers, the future is always uncertain: you might do very well in any given year, successfully paying both your firm's overhead and your own living expenses, but doing this every year is a roll of the dice.

Here's my experience: for every "rich plaintiffs' lawyer" you read about in the newspaper, there are ten who are just getting by. Don't quit that cushy defense job without a solid business plan, the desire to work around the clock, and the ability to absorb a heavy loss.

Ron Motley's 9/11 Class Action: Following the Money Trail

From the UK Times: "Breaking the Al-Qaeda Code," by Christina Lamb--

Sleepy Charleston, the South Carolina hometown of Rhett Butler in Gone with the Wind, seems an unlikely place to be on the front line of the global war on terror.

Yet on the third floor of a glass office building overlooking the Cooper river is a locked room that is straight out of a futuristic thriller.

Inside, a series of control panels with flashing lights and whirring hard drives comprise the master computer of the world’s largest free-standing database of intelligence on Islamic terrorism. It could hold the key to dismantling Al-Qaeda.

“It’s the best database on Islamic terrorism in the world,” said a senior counter-terrorism official at the FBI.

The database was compiled by Plaintiffs' lawyer Ron Motley and his staff, who are working through the investigation phase of Motley's class action on behalf of 1,431 dead and 1,325 injured in the 9/11 attacks. The 205 defendants, which are accused of financing Al-Qaeda, include "biggest banks in the Middle East, wealthy Saudi individuals and corporations and several leading Islamic charities."

Motley says he has spent $18 million of his own money on the case. His information is superior to the U.S. government's in some areas because "we just outbid the US government in getting people to sell things such as hard drives."

For more amazing facts about the database and what it reveals, see the article.

Related posts:

1. "Wipe that Smirk Off Your Face!" And Other Things Plaintiffs' Lawyers Don't Really Say to Opposing Counsel

2. From the Import-Export Department: Top Plaintiffs' Lawyers Expand Their Repertoires

From the Import-Export Department: Top Plaintiffs' Lawyers Expand Their Repertoires

From Forbes.com: "Can You Say Tort?" by Michael Freedman--

58-year-old lawyer [Michael Hausfeld] is building an international network of plaintiff lawyers in such diverse places as Great Britain, India, Panama and South Africa. The goal: to export U.S.-style litigation tactics, including contingency fees and class actions, throughout the world. In coming months, he says, he and allied lawyers in various countries plan to file antitrust, product liability, securities and human rights cases.

While Hausfeld is exporting cases, some lawyers are importing them.  An example is Ron Motley, another well-known plaintiffs' lawyer, as illustrated by an article in Forward, "Israeli Terror Victims to Sue Arab Bank in America," by Marc Perelman.

It's more proof that top plaintiffs' lawyers always stay one step ahead of the pack.  In this case, the pack is off chasing Vioxx cases. 

Related post: Why Are US Plaintiffs' Lawyers in South Africa This Week?

Braggin' Rights: Carey & Danis

In more news about the fen-phen trial I last reported about here, the Missouri Lawyers Weekly weighs in with "First Mo. Fen-Phen Case Settles After Week Of Trial," by Aaron Brown--

After a week of trial, six people who claimed that a popular diet drug caused heart-valve damage have settled a St. Louis City products liability case against the manufacturer for a confidential amount.

The plaintiffs, all residents of southern Illinois who ranged in age from 32 to 60, had opted out of a $3.75 billion class action settlement finalized in September 2000 by Wyeth Laboratories, formerly known as American Home Products.

The St. Louis lawsuit was one of the first fen-phen opt-out cases in the country to go to trial. Following the denial of Wyeth's motion for directed verdict, the company settled on Sept. 22 after a day of defense evidence . . .

John Carey, attorney for the plaintiffs in the St. Louis case along with Joseph Danis, said his clients have estimated future medical expenses of between $100,000 and $600,000. The national settlement would have paid them only $6,000 each, he said.

Congratulations to John and Joey, who careful readers will be able to identify as my former partners. We've had many good times together, which included working on the opt-out fen-phen claims of another 1,000 women (and a few men) between 1997 and 2000. It's always good to see the right team win!

Are You Suffering? Do You Need Help? Do You or a Loved One Need a Lawyer from Minnesota?

As a card-carrying plaintiffs’ lawyer, I’m a little miffed that I didn’t get the memo from the other members of the grand cabal telling me that we’re now advertising our services based on the model of a Chinese menu. Instead, I had to find out about the change in strategy from a Minnesota lawyer named James E. Rolshouse, who ran a Chinese-menu ad last week in the Alton Telegraph, my local paper.

The ad contained A LOT OF CAPITAL LETTERING and notified readers and their loved ones that Mr. Rolshouse is accepting clients who are suffering from--

• Complications from heart bypass, stent or aneurysm surgery;
• Complications from Lasik surgery;
• Diseases such as heart disease, cancer, kidney damage, or Parkinson’s Disease caused by welding; and
• All serious injuries caused by the ingestion of Paxil, Baycol, Crestor, Zyprexa, or Neurontin.

The ad was divided into four parts, ran from the top to the bottom of the page, and contained a large photo of an old man breathing through an oxygen mask. It seemed like a clever and effective ad, but there’s a concern I would have expressed if I had received the memo: What about people who don't read the newspaper? Isn’t there some way to reach out to people at nursing homes, churches, and community centers who are just generally suffering and in need of help and WANT SOME MONEY DAMAGES?

But wait! Mr. Rolshouse had thought of this too. It was toward the bottom of the ad in a little box, and it said: “CLIP AND SAVE. Please take this notice and post it in your nursing home, church, community center or anywhere that it may reach people who are suffering and need help.”

What a good idea! A Chinese-menu advertisement that can be posted everywhere! I was so inspired, in fact, that I posted it here. But now I’m wondering: What should I advertise for in my Chinese-menu ad?

Those Nutty Plaintiffs' Lawyers!

In Manhattan this week, two rival plaintiffs' firms battled it out in court. Only one could emerge victorious: it was Rosenberg, Minc, Falkoff & Wolff, which won a $1.4 million verdict against rival Mallilo & Grossman.

What happened? According to an account in the New York Law Journal, it was client-stealing by a Mallilo & Grossman associate--

That associate, Mason Pimsler, a 1997 graduate of Touro Law School, went to enormous and ultimately illegal lengths to make a name for himself as a rainmaker . . .

On almost every weekend between March 1998 and May 1999, Pimsler would call Rosenberg Minc's answering service pretending to be partner Daniel Minc.

He would use the intercepted messages to contact potential clients and get them to sign retainer agreements as quickly as possible.

It was some out-of-the-box lawyering that almost caused the young associate to end up in the can. Ultimately, he was sentenced to three month's probation and disbarred, despite begging for leniency on the grounds of his "inexperience as an attorney" and the "'pressure cooker' atmosphere of Mallilo & Grossman."

UPDATE: The linked article now includes this correction--"The original version of this story incorrectly stated the time frame over which Mason Pimsler called Rosenberg Minc's answering service. The correct time frame was the first five months of 1999."

When One Jet's Not Enough For Your Law Firm. . .

. . . Why not buy a second? But don't skimp! If you've still got $11 million left over after the purchase, why not fix up the interior just a bit? How about a $1.2 million sound system? Or an 18-karat gold sink? If you have some cash left over after making these additions, why not splurge for leather seats or . . . carpet!

When you're all finished, put the news on your website like Willie Gary did. While you're at it, get your web programmers to make it look like the inside of your right hand is emitting a radioactive pulse every four seconds. If they can do it, why not?