Beyond the Underground

THE BEST JUDGES BUSINESS CAN BUY . . . In case you missed it, an editorial that appeared a few weeks ago in the New York Times, "The Best Judges Business Can Buy," began like this--

The problem of wealthy interests’ trying to influence court decisions by pouring money into state judicial elections continues to escalate, according to a newly released report. So does the threat to the impartiality, independence and integrity of the nation’s courts. If the courts are going to pursue justice rather than advance special-interest agendas, states must either adopt public financing and strict fund-raising rules for judicial elections or switch to a nonelective merit selection system. Thirty-nine states elect at least some of their judges.

The report — released by the Justice at Stake Campaign, the Brennan Center for Justice and the National Institute on Money in State Politics — found that by 2004, the amount raised by candidates for states’ highest courts had reached nearly $47 million nationwide, up from $29 million in 2002. In 2006, total fund-raising decreased to $34.4 million, largely owing to a decrease in the number of contested races. But the median amount raised by individual candidates in 2006 soared to nearly $244,000 — from the 2004 median of about $202,000.

The editorial continues that in 2006, while lawyers contributed $7 million to the 88 state supreme court candidates who raised funds in the latest election cycle, businesses contributed $15 million. "By far the biggest spenders in the 2006 judicial elections were business interests."

The report on which the Times editorial was based can be found online: The New Politics of Judicial Elections, 2006 (pdf).

DEFENSE LAWYERS DEFEND MADISON COUNTY . . . At a press conference last week, a group of defense lawyers who practice in Madison County, Illinois, reportedly "bristled" at the description of Madison County as a "judicial hellhole."

Said one, "When you hear this judicial hellhole discussion, you've got to remember who started it. These are people who don't like being sued by anybody for any reason, whether the lawsuit has merit or not. So you need to keep in mind that the drumbeat about Madison County has not been beat by people who have legitimate injuries and go to have their day in court."

The press conference was called to show support for a Democratic judicial candidate.

Related posts:

1. "Madison County Judges Respond to 'Judicial Hellhole' Slur"

2. "Weekly Report #26: Report from a 'Podunk' County"

3. "Hey, Senator Hatch: Read My Weblog"

LITIGATION AND POLITICS: THE YIN AND YANG OF THE WEBLOGS . . . Would you like to be introduced to two litigation-and-politics weblogs you've probably never heard of? They're such opposites, you might call them the yin and yang of litigation-and-politics weblogs.

Let's start with the yang, which as we all know, is the more sunny and bright of the yin-and-yang duality. That would be the new TortDeform weblog, published by the Drum Major Institute for Public Policy. Here's its mission:

This blog is being launched in order to offer an alternative, and we believe, more accurate analysis of the state of our civil justice system than that presently provided by the majority of legal commentary blogs.

Over the last several decades, a relentless and more or less successful campaign has been waged by a collection of interests identifiable as the tort "reform" movement, aimed at closing the courthouse door to civil litigants as much as possible. This group strives to make it as difficult as possible for victims of corporate or other misconduct to sue and hold accountable in court those who harm them. Even more detrimentally, this same tort "reform" group has succeeded in shaping and leading important national narratives about the law and lawyers. Now, more than ever before in recent history, lawyers, lawsuits, and an overly litigious society are blamed for everything from the rising costs of health care to the state of the economy.

This blog is being launched to right this imbalance, and to affirmatively engage the tort "reform" movement's ideas in a popular medium that is accessible to lawyers and non-lawyers alike.

What about the yin? Glad you asked. As we all know, yin is the more sinister element of the yin-and-yang duality--sad, dark, and corresponding to the night. That must mean the Texas Shark Watch Blog. Its mission is stated on its front page:

This blog chronicles the evolution of the trial lawyers' approach to dealing with the Republican majority, introduces the key players in the trial lawyers' infiltration of the Republican Party of Texas, and identifies the Republicans who the trial lawyers are seeking to pry away from the party's commitment to a balanced civil justice system.

It's certainly something different. Who publishes the Texas Shark Watch Blog? That's unclear. Yinlike, its publishers seem to be keeping to the shadows. As you'd expect, however, the weblog isn't too dark to have escaped mention on Overlawyered and Point of Law. Those yins tend to stick together.

Related posts:

1. "The Experienced Lawyer and the Law Student Debate Point of Law."

2. "The Experienced Lawyer and the Law Student Debate Willie Gary and Dickie Scruggs."
 

TORT "REFORM" BY ANY OTHER NAME . . . The proprietors of Blog 702 were so upset by John Stossel's recent anti-lawyer column in the New York Sun (reprinted at Point of Law) that they decided to violate their own rule against what they call "partisan polemic." Here's how their long response begins:

Stossel cannily deploys the traditional opening gambit of almost all anti-tort invective: an ad hominem attack on lawyers. In these philippics, it is customary, in particular, to trot out the phrase "trial lawyers" at the first opportunity. Like so many words and phrases with double meanings, this one serves handily as a rhetorical pivot point. Its more expansive meaning ("litigators in general") helpfully maximizes the universe of lawyers toward whom the reader is invited to feel antipathy, thereby improving the odds that each reader will hit upon some particularly contemptible exemplar, drawn from personal experience, hearsay acquaintance, or some suitable work of fiction. The availability of this more expansive interpretation also helps the anti-tort rhetorician present himself as fair-minded and even-handed. It's not lawsuits he necessarily dislikes, we're invited to think, so much as litigators of all stripes. (A simple matter of taste, perhaps, but who could really argue?) After the reader has assented to the truism that litigators are a generally shifty and unpleasant crowd, the meaning of the phrase can segue to the narrower category actually in the anti-tort rhetorician's crosshairs: litigators who represent plaintiffs.

For more polemic, see the full post. It also includes a good point about the term tort reform--

We nearly said "tort reform," but we stopped ourselves, for two reasons. First of all, Stossel's piece shows no interest in "reforming" anything. It simply complains. But secondly, we've come to the view that even scare-quotes do not sufficiently confront the Orwellian qualities of this phrase. In our view, the word "reform" simply does not capture the actual agenda of most self-identified "tort reformers," which is to "reform" the tort system by so radically shrinking its field of operation as to effect its de facto abolition, save perhaps in cases of battery and tortious interference with prospective economic advantage. From now on, we plan to refer to that agenda forthrightly as the "anti-tort" position.

So tort reform becomes the anti-tort position. Does it work? The proposal has some merit, but it's hard to talk about those who espouse the position without resorting to anti-torters, which is confusing. What other options are there? Some like the term tort deform, which suggests tort deformers, but those terms seem too flip for serious discourse. Are there other workable ideas? I'm opening the floor to suggestions.

JULY ISSUE OF TRIAL MAGAZINE NOW AVAILABLE ONLINE . . . In a post last week, I wrote that the July issue of Trial magazine contained a number of articles about "the myth of the litigation crisis." Though I thought these articles would be of interest to the general public, they were only available to ATLA members or Trial subscribers. This didn't make sense to me, for reasons I explained in the post.

Apparently, the editors of Trial magazine took my complaint to heart. In a comment to last week's post, they stated they've made the six theme articles from the July issue available to anyone. You can find them here: you now have no excuse not to read them.

ATLA'S TRIAL MAGAZINE TAKES ON TORT REFORM--BUT FOR SUBSCRIBERS ONLY . . . The July issue of Trial magazine is devoted to "the myth of the litigation crisis." Here are some of its articles, along with the summary of each from the magazine--

The gloves are off, by Bill Straub. "For years, tort 'reformers' have disparaged the civil justice system, trial lawyers, and their allies. With facts and history on their side--and no less than Americans' fundamental rights at stake--trial lawyers can and must start hitting back, hard."

Insuring against the next insurance crisis, by Jay Angoff. "Insurance costs are driven not by frivolous lawsuits, greedy plaintiffs, or some other fictitious beast, but by a regular, predictable insurance cycle that swings between market-based extremes. Regulatory reform could smooth the cycle."

Corporate wolves in victims' clothing, by Justinian Lane. "Corporate executives hate lawsuits--except when they're the plaintiffs. These hypocrites blame personal injury litigation for driving up consumer costs, while they rake in million-dollar compensation packages ultimately paid for by consumers."

Straight talk about torts, by Carmel Sileo and David Ratcliff. "Litigation is down, and criminal--not civil--trials are clogging the courts. Statistics and trends reported by government agencies and research organizations confirm these and other truths about civil litigation."

Fighting to end the 'ban litigation' crisis, by Arthur H. Bryant. "Powerful interests are working to deny ordinary citizens access to the courts. Using tactics from mandatory arbitration to federal preemption to bans on class actions, they aim to stamp out consumer rights. These assaults must be thwarted."

The truth about the drug companies, by Marcia Angell. "Many consumers don't realize that drug companies spend far less on research than they claim to and that most of this money goes toward reformulating perfectly effective older--and less expensive--drugs."

Some of these articles sound interesting, don't they? I'd recommend them, except that the articles aren't available online--they're locked behind an old-fashioned, subscription-only firewall, where they're available only Trial subscribers. Since those are mostly plaintiffs' lawyers, ATLA has set up a sort of pointless echo chamber, where plaintiffs' lawyers complain to other plaintiffs' lawyers about tort reform.

There's at least one exception to hidden nature of the July Trial: a longer, unedited version of Justinian Lane's article is online at his weblog, Corpreform. Leave it to a weblogger to get the word out. Meanwhile, I wonder why ATLA doesn't make these articles generally available to the public. Perhaps it figures that articles from Trial magazine would be too technical for the general reader, that its website's consumer-focused content suffices.

On the other hand, is it possible that ATLA could really be this condescending to those it seeks to serve? I don't think so. The unavailability of the July issue of Trial is probably just an unfortunate oversight, one that should be corrected.

UPDATE: As explained in a comment from the editors of Trial magazine, they've now made the issue freely available online. 

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.

JOKING ABOUT JUDICIAL HELLHOLES . . . What do you get when you cross an insurance company called "AC/DC" with a judicial order remanding a case to Madison County, Illinois? According to one defense firm's weblog, it's a highway to hell.

I wonder if this failure by a defense firm to take the judicial-hellhole slur with a perfectly straight face means that ATRA's propaganda campaign is losing some of its force. It won't be long before they'll have evil genius (and tort-textbook author) Victor Schwartz  come up with some other clever slur. Schwartz is the lawyer from Shook Hardy who invented the term. Any suggestions for him?

Meanwhile, I'm working on a propaganda campaign of my own. I'm going to take ATRA's term and turn it on its head. Rather than "judicial hellholes," I'll be focusing on those jurisdictions in which the playing field is tilted in favor of big business. I'm calling them "consumer hellholes." What do you think?

Related posts about judicial hellholes and Victor Schwartz:

1. "Surprise! It's Another Stupid Article About Madison County, Illinois"

2. "On Surviving the Lion's Den"

Concluding note to fans of Victor Schwartz: When I say he's an evil genius, I mean that only in the most complimentary sense. If we were picking teams, I'd certainly want him on mine.

OUTGOING PRESIDENT OF ILLINOIS BAR TO LAWYERS: JOIN THE BATTLE . . . In his final column in the Illinois Bar Journal, outgoing president Robert K. Downs speaks out against attacks on the legal system and calls on lawyers to "join the battle"--

[T]he independence of our judiciary, the legal system, and lawyers themselves are under attack. State and national chambers of commerce, medical associations, and the $200 million per month Washington lobbying industry have absolutely no hesitation to do everything they can to influence the courts and legislators for the sole purpose of preventing accountability for such things as product liability, effective regulation, and relief from malpractice.

. . . Some change is necessary, of course, and good lawyers can and do work for such change, but not at the expense of undermining respect for the rule of law and the Constitutional framework of separation of powers.

I use the word "attack" because real people are out there to diminish our profession and our judiciary as we know it . . . Now, the latest outrage thanks to Republicans Grassley (Iowa) and Sensenbrenner (Wisconsin): the "2006 Judicial Transparency and Ethics Act S 2678," which calls for "in consultation with Congress" an inspector general of our judicial system with subpoena powers to address "judicial misconduct" or misuse of the two tenths of one percent of the federal budget spent on the judiciary. I'm not making this up, folks--and this is brought to you by the same people who are from the top down running around the country declaring a "judicial hellhole." I fear that enough people are cognizant of a common parentage for these attacks on the legal system.

If we do not join in the battle--individually and through bar association activity--then there will be no counterattack, and the system you believe and work in will fall.

These quotes are taken from Downs' "President's Page" column from June 2006. It's hard to argue with him. I'd only add that there's more to the battle than merely stopping wrongheaded legislation. It's just as important to demonstrate to ordinary citizens that by supporting such legislation, they are working against their own self-interests. Those same people would disagree, of course: in their minds, they're taking a brave stand against "greedy lawyers" and "crooked judges." That it's so hard to convince them otherwise demonstrates the genius of the tort-reform lobby--a lobby that's enjoying great returns from its years of anti-lawyer rhetoric.