We have always tried hard not to inflict our vacation replays on friends. When we were kids, September often saw neighbors invite folks over for a dinner followed by a droning slide show of Summer hijinks at the Jersey shore or, for our more posh acquaintances, Myrtle Beach. We thought it was a bore then. It still is, even if Facebook has replaced the Kodak carousel as the transmission route.
Our vacation just ended and we are determined not to subject you to memories that are precious to no one save ourselves. (E.g., "Here's the Drug and Device Law Son flipping a coin into the Trevi Fountain. Here he is frolicking in the fountain. Gosh it was hot that day! Oh, and here are the carabinieri hauling the Drug and Device Law Son away.")
Anyway, what could a silly vacation have to do with Drug and Device Law? Thankfully, not much. The whole idea of vacation is vacating one's mind of work. We travel so as to think of other things. Or to think of nothing. But when you are traipsing through Greece and Italy - places whose histories are at the root of our political and legal systems - every once in a while some law-related notion negotiated its way into our noggin, past the sunscreen and limoncello. When we were in law school, Professor Richard Epstein offered a course on Roman law, which became a running commentary on current legal concepts. It turns out that the Romans developed a system of strict liability way before Justice Traynor took California tort law to new places.
While in Rome we drove past the Palazzo di Giustizia, which some local wags refer to as the "Palace of Injustice.". Apparently cases take a long time to reach resolution there. Inasmuch as we have had cases where judges sat on dispositive motions for six months, we can relate. We also wandered the ruined streets of Pompei, a place even more impressive than you expect it to be. We caught ourselves laughing at the cartoons on the walls of the bawdy house - until we noticed that the Drug and Device Heirs were laughing equally hard. Didn't the ancients know anything about the PG rating? Near the end of the Pompei visit, the tour guide led us into what he called the single most impressive building. It was huge, with many columns and pedestals still standing. It was the courthouse. Interestingly, Pompeians called it the basilica. Our vacation took us through many basilicas, including St. Peter's in the Vatican. To our mind, a basilica is a church. According to our guide, the courthouse in Pompei was called a basilica because law was invested with religious significance.
That got us to thinking about law, religion, and the importance of settings. Cases begin with oaths (or affirmations). Jurors and witnesses hold up their hands and make solemn promises. When we used to prosecute cases in Los Angeles, we'd often find ourselves strolling past LA City Hall. It has an inscription from Cicero that almost nobody notices: "He who violates his oath profanes the divinity of faith itself. " We know that people violate their oaths all the time - people commit perjury, jurors arrive at compromise verdicts, etc. - and we still find it horrifying. We don't want to believe it's true. Even in a secular society, most people still see some connection between law and a sense of higher obligation.
Sometimes witnesses ask how they should dress for court. Maybe it's old fashioned, but our usual advice is to dress as if they were going to church, synagogue, or temple. We told that to a confidential informant, a guy who could not walk down a street without attracting a heroin deal. He showed up wearing red suede boots and a purple satin shirt unbuttoned to the navel. Yeesh - that must have been some church that our CI attended. We want people to take court seriously, and to seem to do so. There is a video of the entertainer Cher being deposed. She wears sunglasses, chews gum, takes a cellphone call, and, in general, seems to treat the process as a nuisance. Not good.
We have not been to too many courthouses that we would call basilicas, but some are pretty majestic. Oral argument at the United States Supreme Court is undeniably thrilling. The process of getting in is something of an ordeal. It reminds us of the buildup when trudging through a long line at a Disneyland ride. The Supreme Court's room is glorious, but given the stakes and the quality of questioning and advocacy, it would probably still be thrilling even if the cases were heard in a bowling alley.
We have spent a lot more time in rather ordinary rooms with plain brown banisters. Most of the courtrooms in LA don't look like anything that Cicero would recognize. Instead, they are simple and businesslike. If you have ever seen the old Perry Mason television show, or the not-as-old LA Law show, or the OJ Simpson trial, you know what we mean. The Roybal building in LA, where the federal civil rights trial relating to the beating of Rodney King took place, is impressive in a modern but antiseptic way. The Ronald Reagan building in Santa Ana is gorgeous, but it is cold and calls to mind the vast empty and steely spaces of Brasilia. By contrast, Ninth Circuit arguments in Pasadena take place in a historic, lovely structure. A secretary assured us that the building is haunted. Maybe that is because a suicide bridge is nearby. Or maybe it is because during the Viet Nam War, it received casualties. Or maybe the place is simply haunted by bad rulings.
When we moved to Philadelphia, we were astonished to be doing trials in the City Hall. Don't get us wrong. It is one of the most unique, commanding city halls in America (French empire revival). For many years, no one would construct anything higher than the statue of William Penn atop City Hall. But there is no getting around that it is an odd place for trials. In the Summer, the courtrooms get hot. Really hot No surprise there. But some of the courtrooms have old in-window air conditioners that are loud enough to drown out witness testimony. (Say, maybe that is the way to deal with Dr. Parisian). So judges make decisions about when to turn the a-c on and off. In some courtrooms, you can hear the rumble of subways passing underneath. Many of the courtrooms are jaw-droppingly beautiful. But the building is quirky, and courtrooms are wedged into some odd nooks and crannies. Once before a fen-phen trial in Philly, after getting the case reassigned to a new judge, we walked into the courtroom with the plaintiff lawyer, a notorious rascal. He had left his diet drug clients way behind in the corridor when he took one look at the tiny room and cackled, "There ain't no way my clients are fitting into this courtroom!". Good times.
No defense lawyer likes being in the Edwardsville, Illinois courtroom. Being there means that a bogus mass tort case has been filed against your client. Pessimism reigns in our flinty, defense- hack hearts in that Palazzo di Giustizia. But the room itself is handsome. It is large and graceful. When you argue to the judge, the lectern is so close to the judge that you feel like you could reach out and touch the judge. We cannot think of another courtroom that manages to be simultaneously so daunting and intimate. It reminds us a little of the courtroom in To Kill a Mockingbird. That film used a set for the courtroom, but we hear it faithfully reproduced the courtroom from Monroeville, Alabama, where Harper Lee's dad, the real-life Atticus Finch, practiced law.
It is not obvious to us whether, as corporate defense lawyers, we should prefer courtrooms that are plain and business-like or ornate and awe-inspiring. We have heard some lawyers hypothesize that the side arguing that some serious wrong occurred - the prosecutor in a criminal trial, or the plaintiff in a civil trial - has an interest in heightening the seriousness of the proceedings. Under this theory, there is a reason why that glitzy Edwardsville courtroom should scare us, besides the drive-through class certifications.
It is not as if there is any data to shed light on the issue. Simply on a personal level, we enjoy being in a beautiful courtroom. The courtroom near our house out in Chester County is physically splendid, but what most halts us in our tracks is the list of presiding judges that adorns the door frame of the main courtroom. The judges date back to the 1700's. Maybe that does not match the glory that was Greece or the grandeur that was Rome, but it makes us want to up our game. Ultimately, it is not the interior decoration of a courtroom that instills respect for the law; it is the doings of its inhabitants.
Showing posts with label Jurisprudence. Show all posts
Showing posts with label Jurisprudence. Show all posts
Wednesday, August 15, 2012
Wednesday, August 1, 2012
Popular Crime: A Review
Summer vacation calls for light reading. Believe it or not, that usually does not include the greatest hits of Scalia, Posner, or any of the Judges of Madison County. Nor does it include plaintiff briefing on bogus parallel claims or the virtues of Conte. Nope, in the Summer we stick to nonfiction. We have been fans of Bill James since way back when he sold raggedy little abstracts that ran regression analyses of baseball statistics. James created sabermetrics, an innovative statistical approach to baseball. James taught us that a lot of conventional wisdom in baseball couldn't be more wrong. Bunting and stealing bases are bad. Avoiding outs is good. Three-run homers are very good. James proved that the numbers we grew up focusing on (fielding percentage, rbi's) were nonsense. If you read about baseball today, you will encounter statistics that are baffling to anyone born before 1980: WHIP, WAR, etc. Some statistics, such as on-base percentage, are now pretty familiar to all of us, and James is substantially responsible for their importance.
If you enjoyed Moneyball, thank Bill James. He came up with the analytical methods that were employed by Oakland Athletics General Manager Billy Bean. Those methods gave the Athletics a comparative advantage -- until other teams adopted the same methods. (By the way, once again, against all expectation and saddled with a tiny payroll, the Athletics are winning.) What Moneyball is about - what Bill James is about - is something much bigger than baseball. It is about understanding reality. It is about figuring out what is important and what is not so important. And it is about not trusting conventional, received wisdom.
Figuring out what is truly important is hard work. It requires evidence and analysis, not assumptions and arrogance. In drug and device law, the concept of evidence-based decision-making is crucial. But you cannot have evidence-based decision-making without evidence. Bill James wrote about evidence-based decision-making and collecting the right evidence in baseball, but the principle applies in all sorts of human affairs. It turns out that there is another subject matter that Bill James cares for as much as baseball, and he has written a book about it: Popular Crime: Reflections on the Celebration of Violence. It is now in paperback, and it is good beach or cruise reading.
Here is a distillation of the Jamesian world-view: “1) The world is vastly more complicated than the image of the world that we all hold in our heads, therefore 2) Nobody really has any idea what will be important to society or to individuals in society or the future.” Popular Crime at 195. James supplies illustrations of these phenomena from both personal history and Big Time history. High school teachers berated James for not paying enough attention to classroom work and for spending too much time writing funny notes and burying himself in the sports pages. Naturally, it turned out that mastering sports statistics and conveying them with humor turned out to be fairly important for James - more so than, say, the Pythagorean theorem or the mugwumps. James also discusses instances where the Talking Heads bemoaned too much news coverage of seemingly frivolous issues at the expense of the Big Picture, when those frivolous issues emerged as the really important ones. During the 1960 presidential debates, the literati ridiculed the obsession on the part of Kennedy and Nixon over two small islands off the coast of China, Quemoy and Matsu. But that discussion became a platform for the candidates to try to out-tough each other over how readily they would commit American forces to fight Communism in far off, relatively insignificant locations. Frivolous? Pointless? Heard of Vietnam?
James surveys the biggest popular crime stories in American history. A lot of the usual suspects are there: Lizzy Borden, the Lindbergh kidnapping, the Rosenbergs, Dr Sam Shepherd (origin of The Fugitive), the Boston Strangler, and OJ Simpson. James writes in an easy, natural style, and the book moves along quickly. You might notice that many of the cases listed above involve the famous (infamous?) attorney F. Lee Bailey. James argues that Bailey was almost always on the wrong side. That is, according to James, Dr Shepherd was guilty, Albert DiSalvo was likely not the Boston Strangler, Patty Hearst should not have been convicted of bank robbery, and OJ did it. You might disagree with James on those cases, but you won’t be nearly as shocked as you will be by his take on the Kennedy assassination. James is sure that Oswald acted alone. But James believes that the fatal shot did not come from Oswald. Instead, it was an accident, and you will have a hard time swallowing his theory -- until you consider the evidence. Begin reading at page 245. By page 247, shock. By page 248, mind blown.
Some of the most interesting cases are the ones you never heard of before. We had no idea that Alexander Hamilton and Aaron Burr worked together in 1800 to defend an accused murderer in New York City. They prevailed, earning an acquittal for a man who was probably guilty. Four years later, Burr killed Hamilton. No doubt about that one. James also makes several interesting, broader points along the way. For example, police did not believe in the existence of serial killers until relatively recently. Why is that so? Again, James alludes to the complexity of life, and the shortcuts we employ to confront that complexity: “We are desperate to understand the world, we struggle from the moment of birth to understand the world - but it is beyond our capacity. We thus sign on to simplifications of the world that give us the illusion of understanding. Experts are not less inclined to sign on to these simplistic explanations than outsiders, they are more inclined to sign on to them.” Popular Crime at 290. That is a fascinating theory on the foibles of experts. And James probably hasn’t even heard of Dr. Parisian. The press plays a role in disseminating those simplifications, those stories, those ways of simplistically sizing up a complex world. Press coverage of criminal cases used to be a good deal more lurid and circus-like than today. That is why Dr Shepherd's conviction was reversed. James also writes that anxiety about terrorism was at least as pervasive in the 1920s as it is today. Fear of anarchists and foreigners drove the hysteria surrounding the Sacco and Vanzetti trial.
Not surprisingly, James attempts to apply a kind of sabermetrics to criminal cases. He debunks the all-holy prosecutorial triumvirate of motive-method-opportunity. Instead, he postulates a points system that helps determine whether an accused murderer was guilty. Let’s say it takes 100 points to reach a definitive verdict. James would say that if the defendant had been involved in a prior acts of violence toward the victim, that counts for 35 points. And so on. There are lots of other categories and point values and ways of discounting the points. James concludes that Lizzy Borden almost certainly did not give her mother 40 whacks and her father 41. James is not claiming that any mathematical method is really a perfect substitute for the criminal justice system; rather, he suggests it as a useful thought-experiment. James also explores what it is that make some cases truly popular, as opposed to the vast majority of cases that quickly disappear into the mists of time. He looks for tabloid elements, Dreyfus elements (innocent persons wrongly accused), celebrity elements, mystery stories, political elements, bizarre elements (e.g., Jeffrey Dahmer), killers on the loose, organized crime elements, innocent victims, literary elements, etc.
We liked Popular Crime. It is engrossing and insightful. We were eager to turn the pages and greet the next murder. Maybe that confirms what James says about what makes popular crime popular and what his subtitle says about the "celebration of violence." But the effort to devise statistics to decide cases ends up being the least interesting and least convincing part of the book. Crime and the courts are not as susceptible to statistical analysis as baseball. There are too many vagaries and variables. Plus, statistics might not lie, but people do. We do not think that computer programs will ever take over the jury's fact-finding function, though that might actually make sense in some areas of the law (antitrust). Presently, there are occasions where there does seem to be a superabundance of irrationality in the judicial system. An injection of evidence-based decision making would be welcome. Clients often ask us to assess the likely outcome of a trial or a body of litigation. It would be wonderful if we could arrive at a point value system that reliably spat out the value of the case (likeable company witness - 35 points; a judge who freely applies TwIqbal - 25 points; FDA-approved label - 100 points).
Wednesday, July 18, 2012
On Law Schools, Civility, and Other Old News
During this last Bastille Day weekend, we became a soufflé. The triple-digit temps and the humidity toasted us into a torpor. We could not move. No weekend soccer for us. No bike rides or hikes. We couldn't even muster the energy to water the lawn or refill the bird feeders. All we could do was mix Arnold Palmers, add lots of ice, turn up the air-conditioner, run every air-mover in the house, including the ceiling fan and the fancy Dyson bladeless fan, plop down on the couch, and read. We weren't reading anything difficult or high-minded. No legal opinions or Hawking or Dawkins for us. Rather, we piled up the newspapers and bar journals and flipped pages, stopping only if a headline caught our attention. It was lazy, stream-of-consciousness reading.
One of the items that caught our attention was an Op Ed piece in the Sunday New York Times by Lincoln Caplan entitled, "An Existential Crisis for Law Schools." Caplan mentions that July is a stressful time for law school graduates, since that is when most of them take the bar exams. But law grad stress is not confined to studying for, taking, and awaiting the results of bar exams. The job market is now tougher than a Secured Transactions essay question. Only 55 % of 2011 law grads had legal jobs nine months after graduation. Overall, law office jobs have been on the decline since 2004. The market is reacting in all sorts of ways, some predictable and some not so predictable. The declining demand for law grads is influencing the supply side: law school enrollment is dropping. Theoretically, that should prompt a reduction in the price of law school, or at least a halt to the frenzied cost increases. But law school tuition remains frightfully high. In 1985 (an especially notable year for splendid law school graduates), the average private law school tuition was $7526. In 2009 it was $35743. As with higher education in this country generally, the price increases are running way, way ahead of the overall cost of living. There are lots of theories about why this is so, including the competition for faculty and prestige and the influence of government subsidies. Some schools are grudgingly looking at ways of reducing costs, such as installing a two-year J.D. program. It is also possible that the internet will make online education more available and will reduce costs. One can dream, anyway.
Caplan suggests that law schools should create programs tailored to students who want to work in the public sector. Perhaps schools could devise curricula that actually train students to hit the ground running and serve their clients. Clients do not want to pay for first-year associates. There is a reason for that. Maybe the public sector offers an alluring place to start one's career and acquire in-court skills. But to go work in the City Attorney's Office or some pro bono outfit, the graduate cannot be weighed down by $150k of loans. The system is broken. What would we say to the Drug and Device Law Daughter if she told us she was thinking of going to law school? We would probably have to have a very long talk with ourselves before having a talk with her.
That same section of the NYT, the Sunday Review, had an article by Theresa Brown, an oncology nurse, urging that we "Don't Get Sick in July." Law schools are not the only professional schools that celebrate Summer by unleashing graduates on a helpless populace. Medical school graduates start learning to be doctors in July. As Brown puts it, "learning means making mistakes." Brown tells of a new medical resident who possessed insufficient understanding of a dying patient's need for pain killers. The resident's inexperience produced unnecessary suffering.
Now what we are about to say might strike some of you as self-congratulatory, but we do not see this sort of thing as posing nearly as big a problem with lawyers. If young doctors follow the pattern of 'watch one, do one, teach one,' young lawyers probably watch more like 20 before they are permitted to do anything of significance, such as a deposition or client meeting, to say nothing of a trial. It can seem a tad stultifying for a new associate, but there is a reason for all that training. Young lawyers still make mistakes, but their mistakes live to see another day.
Come to think of it, that was grim imagery. More and more, we find that our reading takes a grim turn to the obituary section. We just learned of the death of Stephen Covey, the author of The Seven Habits of Highly Effective People. Covey had a way of boiling complex notions down to simple, memorable nuggets. We remember a video where Covey invited an audience member to come up to a desk and try to fill a bucket with rocks. The volunteer at first had difficulty getting all the rocks to fit. It turned out that the only way to getting everything into the bucket was to start with the biggest rocks, and then fit the smaller ones in around them. The point was "first things first." Covey talked about applying that concept to business and to life. Family, relationships, and health matter most. Attend to them, and then make the other stuff fit around them. One also needs to prioritize things at work. For what we do, we think the first things include telling the truth, working hard, and being helpful. Mastering the intricacies of preemption, Daubert, and the latest dialectical spewings of SCOTUS come later. That is what we believe, that is what we tell new lawyers, and we hope that is what we practice.
The Saturday Wall Street Journal contains an "Ideas Calendar," listing interesting talks all around the country. One of those talks was "Is Civility Overrated?" where a public policy dean and an economist/anthropologist (interesting combination!) would discuss whether it is better or worse for democracy if Americans act cordially or argue bitterly. Sadly, we could not make it to San Francisco for the talk, but we bet it was focused on the allegedly ever-increasing polarization of the polity. There is a lot of nastiness out there, though there also was in 18th and 19th Centuries. Maybe the internet, with its easiness and anonymity, facilitates a coarsening of the culture. Nevertheless, we'll take vigorous debate over mute, inglorious subject-avoidance anytime. Frankly, we think a little invective can be good, at least if it is clever. Our favorite example comes from a 19th Century British Parliamentary debate, where a John Wilkes predicted that his opponent, John Montague, would some day die from hanging or a loathsome disease. Montague furnished the ultimate witty riposte: "That depends, Sir, on whether I embrace your principles or your mistress." (That famous retort has also been attributed to Disraeli and Churchill. Some people are very sloppy at citation.) Even today, House of Commons debates are far more interesting and entertaining than the "My Dear Friend on the other side of the aisle" piffle that passes for "debate" on CSPAN.
But let's all agree that civility is a good thing, okay? That sentiment certainly fills our legal journals. Honestly, could most legal journals possibly manage to be more boring than they are? James McElhaney's articles in the ABA Journal and Jacob Stein's column in the Washington Lawyer are terrific must-reads. They are exceptions to the rule. Let's face it, most legal journals are dull as dishwater, filled with pictures of lawyers semi-smiling in front of bookshelves. Maybe that is what counts as an action shot in our business. The articles calling for more civility are mind-numbing. The next interesting thing they say about civility will be the first. Similarly, legal civility is often the keynote topic in speeches by bar presidents and judges. It is as if hortatory throat-clearing on civility constitutes a way of avoiding the real issues that plague our profession.
The lectures or articles on legal civility are interesting only to the extent they contain horror stories about incivility: the deposition where a lawyer physically threatens his opponent, or the email exchanges that reach a crescendo of ad hominem diatribes. After a point though, one starts to feel like a voyeur. Concrete examples are helpful, but they needn't always be negative examples. Highlighting the good examples of civility would be at least as effective. We will always be grateful to that San Francisco lawyer/opponent who returned a strategy memo inadvertently faxed by a young associate. An in-house lawyer friend was present at a deposition where the lawyer on the other side was relentlessly courteous. That in-house lawyer expressed gratitude afterwards, and is looking for a tangible, business way of rendering thanks. Many of us can probably come up with many stories where an opponent went the extra mile to be courteous and generous. We should share those stories.
Grousing about incivility brings to mind what Twain said about the weather -- everyone talks about it without doing anything about it. There are judges who like to preach the virtues of civility, but there are also judges who undermine civility when they either ignore its breaches or when they, perhaps out of exasperation, act as if such breaches must be the fault of both sides equally. A pox on both your houses, etc. They are like the refs in a football game who penalize both sides. That empty gesture of fairness incentivizes bad players to pick a fight with the other side's star, in the hope that a mutual ejection will produce an advantage. Or worse, sometimes the inciter gets away with mayhem, while only the reaction is punished. Every once in a while a judge will invest time, get the judicial hands dirty, and figure out who is really stirring up trouble. We recall a deposition where a pair of piranhas masquerading as lawyers tortured a young associate with bogus objections, instructions not to answer, and biting insults. We filed a motion to retake the deposition. At the hearing, we barely had to argue. The federal judge (he was in New Jersey, he recently retired, and by this story many of you will know who he is) was simply magnificent. He read the offending passages of the deposition out loud in open court with a beautiful, booming voice, curdling in disgust. The judge said he was not going to stand for it, and issued a clear, compelling order. He did not just talk about the weather. We're pretty sure he actually threw a couple of thunderbolts.
We recently had a settlement meeting with our Dear Friends from the plaintiffs' side of the aisle. We began by saying that we would strike hard blows in the litigation, but never foul ones (classic ex-prosecutor stuff). "Screw that," said the lead plaintiff lawyer, "we'll strike hard ones, foul ones, and filthy ones. We'll do whatever it takes to inflict pain." You've got to give him points for honesty. He was trying to send a message about how we ought to pay a lot to get out of what would become an agonizing experience for us and our clients. But here's the thing: it became clear that our big-barking opponent knew that he had real problems with his case. Call us starry-eyed dopes, but we think that most of the really bad incivility in our profession (lying, cheating, name-calling) springs from a position of weakness. That being said, we are not above applying the muscle to the other side where it makes sense. Commitment and passion are good. It is okay to ridicule an opponent's arguments, and maybe even get a little colorful about it. But there is no need to call your opponent an imbecile or a drunk. It is possible to touch gloves beforehand and act cordially afterward. Life is short.
Back to law school for a moment (the subject, we mean; not actually going back and doing it again). Law schools are required to offer a course on legal ethics. But do they teach anything about what it is really like to work as part of a team? To be responsive to clients? To deal with opponents in an honorable and effective way? We were earlier mulling over whether we would want our heirs to head off to law school. The thing that we want for our children is to end up happy and productive. Maybe it's asking too much for a $40,000 a year school to offer any instruction in that regard, but maybe it's not. Sure, we geezer-practitioners have a responsibility to teach those things to our young colleagues, both explicitly and by example. But maybe such instruction needn't arrive as a revelation. It would better if the really important values, such as civility, diligence, and a sense of priorities, seemed like old news.
One of the items that caught our attention was an Op Ed piece in the Sunday New York Times by Lincoln Caplan entitled, "An Existential Crisis for Law Schools." Caplan mentions that July is a stressful time for law school graduates, since that is when most of them take the bar exams. But law grad stress is not confined to studying for, taking, and awaiting the results of bar exams. The job market is now tougher than a Secured Transactions essay question. Only 55 % of 2011 law grads had legal jobs nine months after graduation. Overall, law office jobs have been on the decline since 2004. The market is reacting in all sorts of ways, some predictable and some not so predictable. The declining demand for law grads is influencing the supply side: law school enrollment is dropping. Theoretically, that should prompt a reduction in the price of law school, or at least a halt to the frenzied cost increases. But law school tuition remains frightfully high. In 1985 (an especially notable year for splendid law school graduates), the average private law school tuition was $7526. In 2009 it was $35743. As with higher education in this country generally, the price increases are running way, way ahead of the overall cost of living. There are lots of theories about why this is so, including the competition for faculty and prestige and the influence of government subsidies. Some schools are grudgingly looking at ways of reducing costs, such as installing a two-year J.D. program. It is also possible that the internet will make online education more available and will reduce costs. One can dream, anyway.
Caplan suggests that law schools should create programs tailored to students who want to work in the public sector. Perhaps schools could devise curricula that actually train students to hit the ground running and serve their clients. Clients do not want to pay for first-year associates. There is a reason for that. Maybe the public sector offers an alluring place to start one's career and acquire in-court skills. But to go work in the City Attorney's Office or some pro bono outfit, the graduate cannot be weighed down by $150k of loans. The system is broken. What would we say to the Drug and Device Law Daughter if she told us she was thinking of going to law school? We would probably have to have a very long talk with ourselves before having a talk with her.
That same section of the NYT, the Sunday Review, had an article by Theresa Brown, an oncology nurse, urging that we "Don't Get Sick in July." Law schools are not the only professional schools that celebrate Summer by unleashing graduates on a helpless populace. Medical school graduates start learning to be doctors in July. As Brown puts it, "learning means making mistakes." Brown tells of a new medical resident who possessed insufficient understanding of a dying patient's need for pain killers. The resident's inexperience produced unnecessary suffering.
Now what we are about to say might strike some of you as self-congratulatory, but we do not see this sort of thing as posing nearly as big a problem with lawyers. If young doctors follow the pattern of 'watch one, do one, teach one,' young lawyers probably watch more like 20 before they are permitted to do anything of significance, such as a deposition or client meeting, to say nothing of a trial. It can seem a tad stultifying for a new associate, but there is a reason for all that training. Young lawyers still make mistakes, but their mistakes live to see another day.
Come to think of it, that was grim imagery. More and more, we find that our reading takes a grim turn to the obituary section. We just learned of the death of Stephen Covey, the author of The Seven Habits of Highly Effective People. Covey had a way of boiling complex notions down to simple, memorable nuggets. We remember a video where Covey invited an audience member to come up to a desk and try to fill a bucket with rocks. The volunteer at first had difficulty getting all the rocks to fit. It turned out that the only way to getting everything into the bucket was to start with the biggest rocks, and then fit the smaller ones in around them. The point was "first things first." Covey talked about applying that concept to business and to life. Family, relationships, and health matter most. Attend to them, and then make the other stuff fit around them. One also needs to prioritize things at work. For what we do, we think the first things include telling the truth, working hard, and being helpful. Mastering the intricacies of preemption, Daubert, and the latest dialectical spewings of SCOTUS come later. That is what we believe, that is what we tell new lawyers, and we hope that is what we practice.
The Saturday Wall Street Journal contains an "Ideas Calendar," listing interesting talks all around the country. One of those talks was "Is Civility Overrated?" where a public policy dean and an economist/anthropologist (interesting combination!) would discuss whether it is better or worse for democracy if Americans act cordially or argue bitterly. Sadly, we could not make it to San Francisco for the talk, but we bet it was focused on the allegedly ever-increasing polarization of the polity. There is a lot of nastiness out there, though there also was in 18th and 19th Centuries. Maybe the internet, with its easiness and anonymity, facilitates a coarsening of the culture. Nevertheless, we'll take vigorous debate over mute, inglorious subject-avoidance anytime. Frankly, we think a little invective can be good, at least if it is clever. Our favorite example comes from a 19th Century British Parliamentary debate, where a John Wilkes predicted that his opponent, John Montague, would some day die from hanging or a loathsome disease. Montague furnished the ultimate witty riposte: "That depends, Sir, on whether I embrace your principles or your mistress." (That famous retort has also been attributed to Disraeli and Churchill. Some people are very sloppy at citation.) Even today, House of Commons debates are far more interesting and entertaining than the "My Dear Friend on the other side of the aisle" piffle that passes for "debate" on CSPAN.
But let's all agree that civility is a good thing, okay? That sentiment certainly fills our legal journals. Honestly, could most legal journals possibly manage to be more boring than they are? James McElhaney's articles in the ABA Journal and Jacob Stein's column in the Washington Lawyer are terrific must-reads. They are exceptions to the rule. Let's face it, most legal journals are dull as dishwater, filled with pictures of lawyers semi-smiling in front of bookshelves. Maybe that is what counts as an action shot in our business. The articles calling for more civility are mind-numbing. The next interesting thing they say about civility will be the first. Similarly, legal civility is often the keynote topic in speeches by bar presidents and judges. It is as if hortatory throat-clearing on civility constitutes a way of avoiding the real issues that plague our profession.
The lectures or articles on legal civility are interesting only to the extent they contain horror stories about incivility: the deposition where a lawyer physically threatens his opponent, or the email exchanges that reach a crescendo of ad hominem diatribes. After a point though, one starts to feel like a voyeur. Concrete examples are helpful, but they needn't always be negative examples. Highlighting the good examples of civility would be at least as effective. We will always be grateful to that San Francisco lawyer/opponent who returned a strategy memo inadvertently faxed by a young associate. An in-house lawyer friend was present at a deposition where the lawyer on the other side was relentlessly courteous. That in-house lawyer expressed gratitude afterwards, and is looking for a tangible, business way of rendering thanks. Many of us can probably come up with many stories where an opponent went the extra mile to be courteous and generous. We should share those stories.
Grousing about incivility brings to mind what Twain said about the weather -- everyone talks about it without doing anything about it. There are judges who like to preach the virtues of civility, but there are also judges who undermine civility when they either ignore its breaches or when they, perhaps out of exasperation, act as if such breaches must be the fault of both sides equally. A pox on both your houses, etc. They are like the refs in a football game who penalize both sides. That empty gesture of fairness incentivizes bad players to pick a fight with the other side's star, in the hope that a mutual ejection will produce an advantage. Or worse, sometimes the inciter gets away with mayhem, while only the reaction is punished. Every once in a while a judge will invest time, get the judicial hands dirty, and figure out who is really stirring up trouble. We recall a deposition where a pair of piranhas masquerading as lawyers tortured a young associate with bogus objections, instructions not to answer, and biting insults. We filed a motion to retake the deposition. At the hearing, we barely had to argue. The federal judge (he was in New Jersey, he recently retired, and by this story many of you will know who he is) was simply magnificent. He read the offending passages of the deposition out loud in open court with a beautiful, booming voice, curdling in disgust. The judge said he was not going to stand for it, and issued a clear, compelling order. He did not just talk about the weather. We're pretty sure he actually threw a couple of thunderbolts.
We recently had a settlement meeting with our Dear Friends from the plaintiffs' side of the aisle. We began by saying that we would strike hard blows in the litigation, but never foul ones (classic ex-prosecutor stuff). "Screw that," said the lead plaintiff lawyer, "we'll strike hard ones, foul ones, and filthy ones. We'll do whatever it takes to inflict pain." You've got to give him points for honesty. He was trying to send a message about how we ought to pay a lot to get out of what would become an agonizing experience for us and our clients. But here's the thing: it became clear that our big-barking opponent knew that he had real problems with his case. Call us starry-eyed dopes, but we think that most of the really bad incivility in our profession (lying, cheating, name-calling) springs from a position of weakness. That being said, we are not above applying the muscle to the other side where it makes sense. Commitment and passion are good. It is okay to ridicule an opponent's arguments, and maybe even get a little colorful about it. But there is no need to call your opponent an imbecile or a drunk. It is possible to touch gloves beforehand and act cordially afterward. Life is short.
Back to law school for a moment (the subject, we mean; not actually going back and doing it again). Law schools are required to offer a course on legal ethics. But do they teach anything about what it is really like to work as part of a team? To be responsive to clients? To deal with opponents in an honorable and effective way? We were earlier mulling over whether we would want our heirs to head off to law school. The thing that we want for our children is to end up happy and productive. Maybe it's asking too much for a $40,000 a year school to offer any instruction in that regard, but maybe it's not. Sure, we geezer-practitioners have a responsibility to teach those things to our young colleagues, both explicitly and by example. But maybe such instruction needn't arrive as a revelation. It would better if the really important values, such as civility, diligence, and a sense of priorities, seemed like old news.
Wednesday, July 4, 2012
Happy Fourth of July
When we had the Monday gig we had the option of blogging on most of the major holidays. We say "option" because we could have honored the holiday by not blogging at all, but that seemed too indolent even for us. We usually split the difference by not doing any heavy lifting. There would be some vague reference to recent legal developments, without the usual piercing analysis you have come to expect from us (okay, from all of us except this particular scribe). There would be a couple of lame allusions to popular culture. Then there would be a heartfelt holiday greeting at the end. It became something of a tradition. Why stop now?
Despite, or maybe because of, our former Monday stint, we developed an enhanced respect for those holidays that resisted the Monday fetish. Veterans Day is an example. When we were employed by the federal government, it was the one holiday we got that almost nobody else got. Maybe precisely because it is seldom part of an extended weekend and mini-vacation, the meaning of Veterans Day is more insistent. There are plenty of veterans among our friends and family, and on that peculiar, isolated day-off in November it invariably seemed like a good idea to pick up the phone and call them. And then there's Christmas, of course. That holiday will never be shoe-horned into the Monday rotation. Neither will Halloween. (Is it just us, or has Halloween over the last 25 years leapfrogged over Easter and Thanksgiving to become the second-biggest holiday? Putting aside whatever controversial religious aspects swirl around it, has Halloween become the absolutely perfect festival of imbecility?)
Now that we have resumed blogging and moved to the Wednesday spot, we are delighted to take the keyboard on July 4th, our favorite holiday. It is the mid and high point of the BBQ troika, and usually has better weather than Memorial Day or Labor Day. We say "usually." Not so much this year, at least not in the Delaware Valley. The thunder and lightning are predicted to humble any human-generated fireworks display. So we'll celebrate our nation's birthday by grilling indoors, eating Mexican appetizers and German sausages, and drinking Italian wine. When the political discussion gets too heated, we'll turn on the Comedy Central marathon of the most patriotic episodes of "30 Rock," "South Park," and "It's Always Sunny in Philadelphia." Philadelphia does July 4th better than anywhere else. We have the Welcome America festival, with music by that most American of musical groups, The Roots. The Independence Hall Tea Party will host its fourth annual Independence Day rally, "Celebrate American Exceptionalism." The Occupy folks promise some sort of orchestrated chaos. And because the Occupy movement is all about chaos, there will also be an event where an unendorsed Occupy spin-off called The 99 Percent Declaration will hold a Continental Congress 2.0 to petition the government for redress of grievances. Good times.
We unashamedly believe in American exceptionalism. How can we not, given what we do? Every week, the advance sheets furnish further proof that our legal system is a uniquely powerful expression of the marvels and pathologies of American culture. There is a new book out called America the Philosophical by Carlin Romano. Romano argues that Americans have elevated pragmatism to philosophical heights. We think there is less to this thesis than meets the eye, but it does put us in mind of those scenes in Apollo 13 where the scientists at the Space Center in Houston improvised brilliant solutions, not by sitting around theorizing, but by taking the relevant physical materials and seeing what they could do with them to save the astronauts' lives. The great Jacob Bronowski said that "the hand is the cutting edge of the mind." It's a pragmatic technique and it works. But if pragmatism is mostly technique, what end does that technique serve? Here we have nothing more weighty to offer than something we all already know: Americans love freedom. Freedom to do what? Pretty much anything, no matter how righteous or risible. We visited Hong Kong over 20 years ago, before the handover, when it was thought to be the most open economy on earth. That's what Milton Friedman believed, and who are we to dispute a Nobel prize winner? Here was a place where products competed on their merits, not hamstrung by tariffs or cultural or governmental barriers. All kinds of products from everywhere were advertised and sold. Sure enough, Japanese electronics and cars adorned neon signs on many of the buildings. French luxury goods abounded. What American goods were ascendant? Fast food, cigarettes, and movies. Conclusion? Americans are really, really good at fun stuff that is not necessarily good for you. You decide. This Hong Kong visit was before Apple triumphed with the iPod, iPad, etc., so now add those goodies to the list. The point remains. America is, in some high-tech, hyperactive, crazy way, still faithful to Paine, Jefferson, and those other long-haired troublemakers. For that all-too-short speck of time when we galumph around the planet, each of us should be able to take our best shot at pursuing happiness. The legal system is supposed to help us do that, partly by facilitating voluntary transactions, and partly by preventing or punishing fraud and force.
We're not going to wade very far into the debate over the SCOTUS decision that mostly upheld the Affordable Healthcare Act. There are a lot of things that can be said about both the opinion and the reaction to the opinion. Speaking of pragmatism, we've heard or read a lot of commentators who accuse Chief Justice Roberts of pursuing a pragmatic result in a manner similar to that other, earlier Supreme Court Justice Roberts, who performed the "switch in time that saved nine." Maybe Chief Justice Roberts was worried about how it would look if there were a string of decisions where the five Republican-appointed justices always voted to overturn Democratic laws and the four Democrat-appointed justices always voted to uphold them. Or maybe Chief Justice Roberts decided to rewrite the law to insert that tax zinger. Or maybe Chief Justice Roberts was weary with Justice Kennedy always being the swing vote. Or maybe he really believes his analysis. We can debate it all day long, now and for the next 50 years. The liberal vs. conservative perspective does not get one very far on this issue. Not only do we have Justice Scalia on the other side of the fence from Chief Justice Roberts, but we also have the two smartest legal thinkers of our time (yeah, yeah, our University of Chicago bias is undeniable) -- Judge Posner and Professor Richard Epstein -- lobbing in shots at what Chief Justice Roberts hath wrought. We hope we do not sound like nihilists or technicians when we confess that this is sort of fun. This Summer we are going to the cradle of philosophy and democracy, Greece, but we bet their courts do not offer the grist for the intellectual mill that ours do.
Meanwhile, on a day when we eat mountains of hot dogs, we tremble in the face of the class action lawsuit recently filed in Minnesota state court (removed to federal court) against ConAgra alleging that Hebrew National brand frankfurters are not kosher. The complaint contains causes of action for negligence, violations of consumer protection laws, and breach of warranties. Throughout the 195-paragraph complaint, the plaintiffs repeatedly allege that the packages falsely represent that the hot dogs consist of 100% kosher beef "as defined by the most stringent Jews who follow Orthodox Jewish Law." The complaint manages to quote from both Upton Sinclair's The Jungle and the company's clever "We Answer to a Higher Authority" ad campaign that started in 1965. Some of the specifics of the complaint might prompt us to fill our plate with eggplant today, but boiled (or grilled or fried) down to its essentials, the complaint tells a story of a manufacturing process that does not fully comply with religious rules. That is sure to raise interesting issues of expert testimony and cognizable injury. Do different ethnic or religious groups enjoy different consumer protection rights? The manufacturing process involves a number of players besides ConAgra. Indeed, ConAgra does not seem to have had much to do with the worst (wurst?) alleged transgressions. But ConAgra is the only defendant. ConAgra denies the allegations. The hot dog case has nothing to do with a drug or device, but we will still follow it, because the issues are interesting and relevant and because, frankly, we are among those consumers who happily pay a bit more for Hebrew National hot dogs. They simply taste better. How do we opt out?
Finally, on this most American of holidays, we cannot ignore the Eleventh Circuit's decision in Farias v. Mr. Heater Inc., 2011 WL 2354369 (11th Cir. June 21, 2012). Like the hot dog case, it suggests something screwy about the American melting-pot. (By the way, whatever a melting pot is, it is one of the few cooking implements not being used for our holiday barbecue.) Our friends at the Abnormal Use blog mentioned the Farias case yesterday, and we won't resist the opportunity to chip in our two cents. In Farias, the plaintiff purchased a Mr. Heater propane gas heater at a Home Depot for use in her home. (Last digression of the day. We once worked with an expert witness who was a professor of marketing. His main point was that advertising almost never creates primary demand. That is, cigarette ads might influence whether you would smoke Marlboros or Camels, but they could not turn non-smokers into smokers. Just like car ads do not make you want to drive. Plaintiff lawyers would always ridicule that point, but plaintiffs, in their depositions, almost always validated it. Anyway, this marketing professor considered it high comedy when companies names themselves "Mr. [fill in the blank]." He thought it was the most uncreative, unmemorable, stupid name for a business. He had a hobby of collecting signs, cards, and other detritus from businesses that adopted the name of "Mr. Something." We contributed Mr. Mulch and Mr. Bar Stool souvenirs to his collection. The professor would have laughed at Mr. Heater.) The plaintiff failed to close the valve on the propane tank before going to bed. Fire. Damages. Lawsuit for strict liability and negligence. The plaintiff, who spoke only Spanish, contended that the manufacturer breached a duty to provide bilingual warnings of the product's danger. Now, there is no general duty to supply bilingual warnings. The plaintiff relied on Stanley Indus. Inc. v. W.M. Barr & Co., 784 F. Supp. 1570, 1576 (S.D. Fla. 1992), where the court held that "[g]iven the advertising of defendants' product in the Hispanic media and the pervasive presence of foreign-tongued individuals in the Miami workforce, it is for the jury to decide whether a warning, to be adequate, must contain language other than English or a pictorial warning symbols." In Stanley Indus., the district court found that the manufacturer and seller "regularly and actively" advertised on Hispanic television, four different Hispanic radio stations, and in a Spanish language newspaper. By contrast, the plaintiff did not unearth such evidence in the Farias case. Home Depot had recently instituted a policy for all its vendors to use bilingual packaging, but that did not evince a targeted campaign. So after the litany we recited above of fire, damages, and lawsuit, add summary judgment.
That result seems fine. But it occurs to us that it might have been a close thing. If targeting a subgroup of consumers sets up a duty to tailor warnings specifically for that group, then watch out, because most sellers of consumer products do plenty of targeting. Look at marketing research documents, brand plans, and media plans. There is more often than not a significant degree of group targeting. Some plaintiff lawyers sink to their most condescending, oleaginous depths in trying to turn "targeting" into a bad word. That is not only doltish but supremely ironic. Have you ever seen where plaintiff lawyers run their ads? Any marketing textbook lays out the necessity of targeting groups of consumers. There is a reason why investment banks advertise during "Meet the Press" and not, say, during "Say Yes to the Dress." But here is the doctrinal issue that ends today's discussion. If warnings must be specifically addressed to the targeted groups, what does that mean in terms of their required content? Bilingual is relatively easy. But what if you really are targeting viewers of "Say Yes to the Dress"? Does your warning need to be different than if you are targeting members of AARP? Or readers of Soldier of Fortune? And here we must leave off and turn to our macaroni salad, because now we are about to enter territory that, at least for those of us prone to making bad, tasteless jokes, is target-rich. Don Rickles and Adam Carolla would have a field day. Talk amongst yourselves. Come up with your own jokes. Remember how lucky we are to dwell in this miraculous, freedom-loving land, and enjoy the Fourth of July.
Despite, or maybe because of, our former Monday stint, we developed an enhanced respect for those holidays that resisted the Monday fetish. Veterans Day is an example. When we were employed by the federal government, it was the one holiday we got that almost nobody else got. Maybe precisely because it is seldom part of an extended weekend and mini-vacation, the meaning of Veterans Day is more insistent. There are plenty of veterans among our friends and family, and on that peculiar, isolated day-off in November it invariably seemed like a good idea to pick up the phone and call them. And then there's Christmas, of course. That holiday will never be shoe-horned into the Monday rotation. Neither will Halloween. (Is it just us, or has Halloween over the last 25 years leapfrogged over Easter and Thanksgiving to become the second-biggest holiday? Putting aside whatever controversial religious aspects swirl around it, has Halloween become the absolutely perfect festival of imbecility?)
Now that we have resumed blogging and moved to the Wednesday spot, we are delighted to take the keyboard on July 4th, our favorite holiday. It is the mid and high point of the BBQ troika, and usually has better weather than Memorial Day or Labor Day. We say "usually." Not so much this year, at least not in the Delaware Valley. The thunder and lightning are predicted to humble any human-generated fireworks display. So we'll celebrate our nation's birthday by grilling indoors, eating Mexican appetizers and German sausages, and drinking Italian wine. When the political discussion gets too heated, we'll turn on the Comedy Central marathon of the most patriotic episodes of "30 Rock," "South Park," and "It's Always Sunny in Philadelphia." Philadelphia does July 4th better than anywhere else. We have the Welcome America festival, with music by that most American of musical groups, The Roots. The Independence Hall Tea Party will host its fourth annual Independence Day rally, "Celebrate American Exceptionalism." The Occupy folks promise some sort of orchestrated chaos. And because the Occupy movement is all about chaos, there will also be an event where an unendorsed Occupy spin-off called The 99 Percent Declaration will hold a Continental Congress 2.0 to petition the government for redress of grievances. Good times.
We unashamedly believe in American exceptionalism. How can we not, given what we do? Every week, the advance sheets furnish further proof that our legal system is a uniquely powerful expression of the marvels and pathologies of American culture. There is a new book out called America the Philosophical by Carlin Romano. Romano argues that Americans have elevated pragmatism to philosophical heights. We think there is less to this thesis than meets the eye, but it does put us in mind of those scenes in Apollo 13 where the scientists at the Space Center in Houston improvised brilliant solutions, not by sitting around theorizing, but by taking the relevant physical materials and seeing what they could do with them to save the astronauts' lives. The great Jacob Bronowski said that "the hand is the cutting edge of the mind." It's a pragmatic technique and it works. But if pragmatism is mostly technique, what end does that technique serve? Here we have nothing more weighty to offer than something we all already know: Americans love freedom. Freedom to do what? Pretty much anything, no matter how righteous or risible. We visited Hong Kong over 20 years ago, before the handover, when it was thought to be the most open economy on earth. That's what Milton Friedman believed, and who are we to dispute a Nobel prize winner? Here was a place where products competed on their merits, not hamstrung by tariffs or cultural or governmental barriers. All kinds of products from everywhere were advertised and sold. Sure enough, Japanese electronics and cars adorned neon signs on many of the buildings. French luxury goods abounded. What American goods were ascendant? Fast food, cigarettes, and movies. Conclusion? Americans are really, really good at fun stuff that is not necessarily good for you. You decide. This Hong Kong visit was before Apple triumphed with the iPod, iPad, etc., so now add those goodies to the list. The point remains. America is, in some high-tech, hyperactive, crazy way, still faithful to Paine, Jefferson, and those other long-haired troublemakers. For that all-too-short speck of time when we galumph around the planet, each of us should be able to take our best shot at pursuing happiness. The legal system is supposed to help us do that, partly by facilitating voluntary transactions, and partly by preventing or punishing fraud and force.
We're not going to wade very far into the debate over the SCOTUS decision that mostly upheld the Affordable Healthcare Act. There are a lot of things that can be said about both the opinion and the reaction to the opinion. Speaking of pragmatism, we've heard or read a lot of commentators who accuse Chief Justice Roberts of pursuing a pragmatic result in a manner similar to that other, earlier Supreme Court Justice Roberts, who performed the "switch in time that saved nine." Maybe Chief Justice Roberts was worried about how it would look if there were a string of decisions where the five Republican-appointed justices always voted to overturn Democratic laws and the four Democrat-appointed justices always voted to uphold them. Or maybe Chief Justice Roberts decided to rewrite the law to insert that tax zinger. Or maybe Chief Justice Roberts was weary with Justice Kennedy always being the swing vote. Or maybe he really believes his analysis. We can debate it all day long, now and for the next 50 years. The liberal vs. conservative perspective does not get one very far on this issue. Not only do we have Justice Scalia on the other side of the fence from Chief Justice Roberts, but we also have the two smartest legal thinkers of our time (yeah, yeah, our University of Chicago bias is undeniable) -- Judge Posner and Professor Richard Epstein -- lobbing in shots at what Chief Justice Roberts hath wrought. We hope we do not sound like nihilists or technicians when we confess that this is sort of fun. This Summer we are going to the cradle of philosophy and democracy, Greece, but we bet their courts do not offer the grist for the intellectual mill that ours do.
Meanwhile, on a day when we eat mountains of hot dogs, we tremble in the face of the class action lawsuit recently filed in Minnesota state court (removed to federal court) against ConAgra alleging that Hebrew National brand frankfurters are not kosher. The complaint contains causes of action for negligence, violations of consumer protection laws, and breach of warranties. Throughout the 195-paragraph complaint, the plaintiffs repeatedly allege that the packages falsely represent that the hot dogs consist of 100% kosher beef "as defined by the most stringent Jews who follow Orthodox Jewish Law." The complaint manages to quote from both Upton Sinclair's The Jungle and the company's clever "We Answer to a Higher Authority" ad campaign that started in 1965. Some of the specifics of the complaint might prompt us to fill our plate with eggplant today, but boiled (or grilled or fried) down to its essentials, the complaint tells a story of a manufacturing process that does not fully comply with religious rules. That is sure to raise interesting issues of expert testimony and cognizable injury. Do different ethnic or religious groups enjoy different consumer protection rights? The manufacturing process involves a number of players besides ConAgra. Indeed, ConAgra does not seem to have had much to do with the worst (wurst?) alleged transgressions. But ConAgra is the only defendant. ConAgra denies the allegations. The hot dog case has nothing to do with a drug or device, but we will still follow it, because the issues are interesting and relevant and because, frankly, we are among those consumers who happily pay a bit more for Hebrew National hot dogs. They simply taste better. How do we opt out?
Finally, on this most American of holidays, we cannot ignore the Eleventh Circuit's decision in Farias v. Mr. Heater Inc., 2011 WL 2354369 (11th Cir. June 21, 2012). Like the hot dog case, it suggests something screwy about the American melting-pot. (By the way, whatever a melting pot is, it is one of the few cooking implements not being used for our holiday barbecue.) Our friends at the Abnormal Use blog mentioned the Farias case yesterday, and we won't resist the opportunity to chip in our two cents. In Farias, the plaintiff purchased a Mr. Heater propane gas heater at a Home Depot for use in her home. (Last digression of the day. We once worked with an expert witness who was a professor of marketing. His main point was that advertising almost never creates primary demand. That is, cigarette ads might influence whether you would smoke Marlboros or Camels, but they could not turn non-smokers into smokers. Just like car ads do not make you want to drive. Plaintiff lawyers would always ridicule that point, but plaintiffs, in their depositions, almost always validated it. Anyway, this marketing professor considered it high comedy when companies names themselves "Mr. [fill in the blank]." He thought it was the most uncreative, unmemorable, stupid name for a business. He had a hobby of collecting signs, cards, and other detritus from businesses that adopted the name of "Mr. Something." We contributed Mr. Mulch and Mr. Bar Stool souvenirs to his collection. The professor would have laughed at Mr. Heater.) The plaintiff failed to close the valve on the propane tank before going to bed. Fire. Damages. Lawsuit for strict liability and negligence. The plaintiff, who spoke only Spanish, contended that the manufacturer breached a duty to provide bilingual warnings of the product's danger. Now, there is no general duty to supply bilingual warnings. The plaintiff relied on Stanley Indus. Inc. v. W.M. Barr & Co., 784 F. Supp. 1570, 1576 (S.D. Fla. 1992), where the court held that "[g]iven the advertising of defendants' product in the Hispanic media and the pervasive presence of foreign-tongued individuals in the Miami workforce, it is for the jury to decide whether a warning, to be adequate, must contain language other than English or a pictorial warning symbols." In Stanley Indus., the district court found that the manufacturer and seller "regularly and actively" advertised on Hispanic television, four different Hispanic radio stations, and in a Spanish language newspaper. By contrast, the plaintiff did not unearth such evidence in the Farias case. Home Depot had recently instituted a policy for all its vendors to use bilingual packaging, but that did not evince a targeted campaign. So after the litany we recited above of fire, damages, and lawsuit, add summary judgment.
That result seems fine. But it occurs to us that it might have been a close thing. If targeting a subgroup of consumers sets up a duty to tailor warnings specifically for that group, then watch out, because most sellers of consumer products do plenty of targeting. Look at marketing research documents, brand plans, and media plans. There is more often than not a significant degree of group targeting. Some plaintiff lawyers sink to their most condescending, oleaginous depths in trying to turn "targeting" into a bad word. That is not only doltish but supremely ironic. Have you ever seen where plaintiff lawyers run their ads? Any marketing textbook lays out the necessity of targeting groups of consumers. There is a reason why investment banks advertise during "Meet the Press" and not, say, during "Say Yes to the Dress." But here is the doctrinal issue that ends today's discussion. If warnings must be specifically addressed to the targeted groups, what does that mean in terms of their required content? Bilingual is relatively easy. But what if you really are targeting viewers of "Say Yes to the Dress"? Does your warning need to be different than if you are targeting members of AARP? Or readers of Soldier of Fortune? And here we must leave off and turn to our macaroni salad, because now we are about to enter territory that, at least for those of us prone to making bad, tasteless jokes, is target-rich. Don Rickles and Adam Carolla would have a field day. Talk amongst yourselves. Come up with your own jokes. Remember how lucky we are to dwell in this miraculous, freedom-loving land, and enjoy the Fourth of July.
Monday, April 16, 2012
The Long Goodbye
Coming up with a last line is not easy. A good conclusion is both a summary and a revelation. Think of Thoreau's Walden: "There is more day to dawn. The sun is but a morning star." Or The Great Gatsby: "So we beat on, boats against the current, borne back ceaselessly into the past." Those exit lines are beautiful in themselves. They shine. They stay with us.
More often, a last line acquires force through context. Examples include 1984 ("He loved Big Brother"), The Invisible Man ("Who knows but that, on the lower frequencies, I speak for you"), and Lolita ("And this is the only immortality you and I may share, my Lolita").
A lot of people think the greatest last line in cinematic history is from Some Like it Hot. The line is simply, "Nobody's perfect." It is what leads up to that line that makes it shocking and hilarious. Some people prefer the ending of The Maltese Falcon: "The stuff that dreams are made of." But in fact the last line in that film is the cop's puzzled response: "Huh?" Not so inspiring. Our own favorite movie ending is from Richard Linklater's Before Sunset: "Baby, you are gonna miss that plane". "I know." Again, it's all in the context. And it doesn't hurt to have a sultry Julie Delpy uttering the line. Most great movie endings leave one exhilarated or numb because of the way they comment on, or undercut, everything that happened before it. "Louie, I think this is the beginning of a beautiful friendship." "I was cured all right." "Forget it Jake, it's Chinatown."
Television has a mixed history of finales. They range from wonderful (Newhart and Six Feet Under) to weird (St. Elsewhere and The Sopranos) to wretched (Seinfeld and Cheers). The Fugitive was an early example of a show that wrapped things up successfully. M*A*S*H ended on a surprisingly maudlin note, but that did not prevent it from commanding a record-setting audience. The Mary Tyler Moore show ended in a group hug, with the cast members displaying their reluctance to part ways. But can anyone out there explain the ending to The X Files? And how could Roseanne, which had always been a sharply-written show about blue collar reality, descend into an ending that managed to be surreal, pompous, and stupid? The better the show is, the more betrayed we feel when the last episode disappoints. That disappointment ends up coloring our perception of the whole series.
Last lines matter in litigation. Trial lawyers exploit the rules of primacy and recency. Get the audience's attention up front and zing them at the end. As a trial-line Assistant U.S. Attorney, we sometimes lifted a closing by the DA (Michael Moriarty, not Sam Waterston) in Law & Order: "I represent the people. It's been my job to show you the defendant's crimes. Now it's your job to do justice". (Now comes "the Clang" -- the chung-chung notes that sound vaguely like a judge's gavel. Richard Belzer, one of the actors in the series, says the sound is actually the producer's cash register ringing.)
Once we tried out a clever rebuttal passionately daring the jury to acquit the defendant if they believed his crazy story. Guess what? They did. We were shocked and dismayed at this result. How could a jury buy the defendant's absurd tale that he had accidentally found 15 social security checks in the slot of a dumpster? Then, two years later, we investigated a mail-theft ring, where the villains traipsed through East LA neighborhoods on the 1st and 15th of the month pilfering government checks. After being purloined from mailboxes, the checks were then hidden in drop points. One of those drop points was -- wait for it -- a dumpster. In retrospect, we have never been so happy to have lost a case.
It is harder as a product liability defense lawyer to strike gold with the last word. The reason for that is self-evident: it is the plaintiff who gets the last word. Even if the defense lawyer comes up with a nice riff, the plaintiff lawyer can turn it around. One common motif is to talk about the verdict and the truth. The defense lawyer can end by telling the jury that the word "verdict" means to speak the truth. 'And the truth is that the plaintiff never showed that the product was defective. The truth is that the plaintiff never showed a safer alternative. The truth is that the plaintiff never showed that the product, rather than an alternative cause, played any role in harming the plaintiff.' Etc. Great. Then the plaintiff lawyer can rush up to the lectern and say, 'You want to talk about the truth? The truth is that the plaintiff enjoyed a happy, healthy life before using this product. The truth is that it would have been simple and easy for the defendant to tell the truth about the product's risks.' Etc. Cue the Clang. The plaintiff can completely appropriate the emotional force of the defense peroration. Often the defense closing contains a pathetic plea to the jury along the lines of, 'The plaintiff gets the last word because she bears the burden of proof. I won't have the chance to come up here and answer the plaintiff's arguments, but you know that I would have answers to each and every one of them. I am asking you to think about what my responses would be.' Good luck with that.
Last lines are important in written arguments, too. Our eyes burn when we read the rote conclusion, "For the foregoing reasons, the defendant's motion should be granted." Really? How colorless and perfunctory can you get? Why squander a final chance to remind the judge of your key argument? It is not especially hard to say something like, "Because the plaintiff's failure-to-warn claim is completely foreclosed by the Buckman decision, this Court should grant summary judgment." That conclusion does not exactly contain poetry, but at least it's an argument rather than an empty gesture.
We were hoping to come up with sparkling last lines from judicial opinions. But it turns out that judges (even Posner) do not write like Thoreau or Fitzgerald. Nor should they, we suppose. Let's be honest: the most important, riveting words we look for at the end of a judge's decision are GRANTED, DENIED, AFFIRMED, or REVERSED.
When we talk about final lines, we end up talking about farewells. If last lines are hard, farewells are the hardest. If you made a film of your life, many of the most poignant scenes would be of farewells: the kiss at the threshold of the jetway (at least before airport security tightened up and squashed all the romance out of departures); leaving a family gathering and spotting, just as you were about to drive off, a five-year-old pressing his face against the window and forlornly waving bye-bye; and sitting in a hospital room and struggling to say something meaningful but not awkward.
This Summer, on some too-far-away college campus, we will be saying goodbye to the Drug and Device Law Daughter. We can hardly write that sentence without blurry eyes. This Monday column has previously alluded to the Drug and Device Law Daughter's proclivity for challenging and vexing her father, but we will miss her far beyond our poor power of expression. (By the way, we recognize that there is something presumptious in referring to the Drug and Device Law Daughter. Several of us who work on this blog have daughters. But permit us one last time.) The DDLD hasn't been at all shy about criticizing things we have said and done. An ongoing source of complaint is her name, especially her middle name. She objects that we assigned her the name of a frivolous male character from a 90's sitcom. Not so. We were thinking of the last name of our favorite 20th Century American (at least from Los Angeles, where the DDLD was born) writer. Raymond Chandler wrote some of the best last pages in American literature. Check out the ending of The Big Sleep, for example. You might not know who actually committed the murder, but you almost do not care. Some higher truth is at stake. In The Long Goodbye, Chandler writes that to say goodbye is to die a little.
This is the last Monday post by this particular writer. It's been a pleasure. Some of you took issue with the columns, attacking moldy or biased thinking. Sometimes you were right. That's okay. Nobody's perfect.
More often, a last line acquires force through context. Examples include 1984 ("He loved Big Brother"), The Invisible Man ("Who knows but that, on the lower frequencies, I speak for you"), and Lolita ("And this is the only immortality you and I may share, my Lolita").
A lot of people think the greatest last line in cinematic history is from Some Like it Hot. The line is simply, "Nobody's perfect." It is what leads up to that line that makes it shocking and hilarious. Some people prefer the ending of The Maltese Falcon: "The stuff that dreams are made of." But in fact the last line in that film is the cop's puzzled response: "Huh?" Not so inspiring. Our own favorite movie ending is from Richard Linklater's Before Sunset: "Baby, you are gonna miss that plane". "I know." Again, it's all in the context. And it doesn't hurt to have a sultry Julie Delpy uttering the line. Most great movie endings leave one exhilarated or numb because of the way they comment on, or undercut, everything that happened before it. "Louie, I think this is the beginning of a beautiful friendship." "I was cured all right." "Forget it Jake, it's Chinatown."
Television has a mixed history of finales. They range from wonderful (Newhart and Six Feet Under) to weird (St. Elsewhere and The Sopranos) to wretched (Seinfeld and Cheers). The Fugitive was an early example of a show that wrapped things up successfully. M*A*S*H ended on a surprisingly maudlin note, but that did not prevent it from commanding a record-setting audience. The Mary Tyler Moore show ended in a group hug, with the cast members displaying their reluctance to part ways. But can anyone out there explain the ending to The X Files? And how could Roseanne, which had always been a sharply-written show about blue collar reality, descend into an ending that managed to be surreal, pompous, and stupid? The better the show is, the more betrayed we feel when the last episode disappoints. That disappointment ends up coloring our perception of the whole series.
Last lines matter in litigation. Trial lawyers exploit the rules of primacy and recency. Get the audience's attention up front and zing them at the end. As a trial-line Assistant U.S. Attorney, we sometimes lifted a closing by the DA (Michael Moriarty, not Sam Waterston) in Law & Order: "I represent the people. It's been my job to show you the defendant's crimes. Now it's your job to do justice". (Now comes "the Clang" -- the chung-chung notes that sound vaguely like a judge's gavel. Richard Belzer, one of the actors in the series, says the sound is actually the producer's cash register ringing.)
Once we tried out a clever rebuttal passionately daring the jury to acquit the defendant if they believed his crazy story. Guess what? They did. We were shocked and dismayed at this result. How could a jury buy the defendant's absurd tale that he had accidentally found 15 social security checks in the slot of a dumpster? Then, two years later, we investigated a mail-theft ring, where the villains traipsed through East LA neighborhoods on the 1st and 15th of the month pilfering government checks. After being purloined from mailboxes, the checks were then hidden in drop points. One of those drop points was -- wait for it -- a dumpster. In retrospect, we have never been so happy to have lost a case.
It is harder as a product liability defense lawyer to strike gold with the last word. The reason for that is self-evident: it is the plaintiff who gets the last word. Even if the defense lawyer comes up with a nice riff, the plaintiff lawyer can turn it around. One common motif is to talk about the verdict and the truth. The defense lawyer can end by telling the jury that the word "verdict" means to speak the truth. 'And the truth is that the plaintiff never showed that the product was defective. The truth is that the plaintiff never showed a safer alternative. The truth is that the plaintiff never showed that the product, rather than an alternative cause, played any role in harming the plaintiff.' Etc. Great. Then the plaintiff lawyer can rush up to the lectern and say, 'You want to talk about the truth? The truth is that the plaintiff enjoyed a happy, healthy life before using this product. The truth is that it would have been simple and easy for the defendant to tell the truth about the product's risks.' Etc. Cue the Clang. The plaintiff can completely appropriate the emotional force of the defense peroration. Often the defense closing contains a pathetic plea to the jury along the lines of, 'The plaintiff gets the last word because she bears the burden of proof. I won't have the chance to come up here and answer the plaintiff's arguments, but you know that I would have answers to each and every one of them. I am asking you to think about what my responses would be.' Good luck with that.
Last lines are important in written arguments, too. Our eyes burn when we read the rote conclusion, "For the foregoing reasons, the defendant's motion should be granted." Really? How colorless and perfunctory can you get? Why squander a final chance to remind the judge of your key argument? It is not especially hard to say something like, "Because the plaintiff's failure-to-warn claim is completely foreclosed by the Buckman decision, this Court should grant summary judgment." That conclusion does not exactly contain poetry, but at least it's an argument rather than an empty gesture.
We were hoping to come up with sparkling last lines from judicial opinions. But it turns out that judges (even Posner) do not write like Thoreau or Fitzgerald. Nor should they, we suppose. Let's be honest: the most important, riveting words we look for at the end of a judge's decision are GRANTED, DENIED, AFFIRMED, or REVERSED.
When we talk about final lines, we end up talking about farewells. If last lines are hard, farewells are the hardest. If you made a film of your life, many of the most poignant scenes would be of farewells: the kiss at the threshold of the jetway (at least before airport security tightened up and squashed all the romance out of departures); leaving a family gathering and spotting, just as you were about to drive off, a five-year-old pressing his face against the window and forlornly waving bye-bye; and sitting in a hospital room and struggling to say something meaningful but not awkward.
This Summer, on some too-far-away college campus, we will be saying goodbye to the Drug and Device Law Daughter. We can hardly write that sentence without blurry eyes. This Monday column has previously alluded to the Drug and Device Law Daughter's proclivity for challenging and vexing her father, but we will miss her far beyond our poor power of expression. (By the way, we recognize that there is something presumptious in referring to the Drug and Device Law Daughter. Several of us who work on this blog have daughters. But permit us one last time.) The DDLD hasn't been at all shy about criticizing things we have said and done. An ongoing source of complaint is her name, especially her middle name. She objects that we assigned her the name of a frivolous male character from a 90's sitcom. Not so. We were thinking of the last name of our favorite 20th Century American (at least from Los Angeles, where the DDLD was born) writer. Raymond Chandler wrote some of the best last pages in American literature. Check out the ending of The Big Sleep, for example. You might not know who actually committed the murder, but you almost do not care. Some higher truth is at stake. In The Long Goodbye, Chandler writes that to say goodbye is to die a little.
This is the last Monday post by this particular writer. It's been a pleasure. Some of you took issue with the columns, attacking moldy or biased thinking. Sometimes you were right. That's okay. Nobody's perfect.
Monday, April 2, 2012
Remembrance of Bad Cases Past
Someone (we don't remember who) once said that the mark of a cultured person is the ability to discuss the work of Marcel Proust without ever having read a word of it. Okay, here goes.
Proust wrote A la Recherche du Temps Perdu, which properly translates into In Search of Lost Time, though it traditionally has been called Remembrance of Things Past. Proust offered a theory of voluntary and involuntary memory. (Proust's father, by the way, was an epidemiologist). A voluntary memory is retrieved via conscious effort. Quick: who was your third-grade teacher? By contrast, an involuntary memory hits us unexpectedly. The most famous example of the latter is Proust's recollection of childhood after sniffing some fresh-baked Madeleines. That reminds us of our Evidence professor who said you could refresh a witness's recollection with anything, including a plate of spaghetti.
As we get older, we are getting way worse at voluntary memory, and way more susceptible to involuntary memory.
The other day we saw a very short opinion out of New York called Gianvito v. Premo Laboratories, (N.Y. App. Div., 1st Dept. March 20, 2012). The plaintiffs "allege that they suffered injury due to in utero exposure to the estrogen drug Diethylstilbrenol (DES), and they urge application of the 'market share' theory of liability." In about a page and a half, the Gianvito court decided that New Jersey law applies, that "New Jersey has not formally adopted a market share theory of liability in DES or similar cases," that "such a theory cannot be found based on dicta" from New Jersey cases, and that "to the extent New Jersey law is unsettled on this issue, we decline to expand the law therein to allow plaintiffs to allege a market share theory." It is the right result.
It also brought back memories of our Torts class in law school. These are not necessarily happy memories. Suspicion is provoked when we hear somebody look back with fondness at first year in law school. Still, we learned a couple of things that are worth holding onto besides the lyrics to "Rock the Casbah". For instance, we will always remember how the case of Sindell v. Abbott Laboratories, 26 Cal. 3d 588 (1980), introduced us to the fact that the law, especially in California, could be utterly crazy. It was not quite a loss of innocence, but it helped prepare us for a couple of decades of batty rulings.
The plaintiff in Sindell was a woman who had developed cancer as a result of her mother's use of DES during pregnancy. Because approximately 200 different companies had manufactured DES, and because so much time had passed, the plaintiff could not identify the manufacturer of the particular DES her mother had taken. She sued the five biggest DES manufacturers, which sold 90% of the DES during the relevant time. What to do? In a 4-3 opinion authored by Justice Mosk, the California Supreme Court held that the plaintiff could proceed on a market share theory of liability. The rule was that if all the defendants are potential tortfeasors, the product is fungible, the plaintiff is legitimately unable to identify the product that harmed her, and a substantial share of the manufacturers who produced the product during the relevant time period are named as defendants, then a rebuttable presumption arises in favor of the plaintiff and she can collect from each defendant a percentage of her damages equal to that defendant's market share at the time the product was used. A manufacturer may rebut the presumption by showing that its product could not possibly have injured the plaintiff.
The Sindell opinion was considered a Very Big Deal in the 1980s. It continued a trend in California law of treating the tort system as a form of social insurance. The plaintiff was absolutely innocent, whereas the defendants had made and sold a dangerous drug. The manufacturers were in a better position than the plaintiff to bear the costs and guard against future harm. Arguably, deterrence would be undermined if all manufacturers of a dangerous product eluded liability. Sindell was judicial policy-making plain and simple. You could debate whether it was good or bad policy, but you could not pretend it was not policy.
Sindell was also a pretty long walk down the road of collective responsibility. Sure, there have been other cases involving joint tortfeasors where it was hard to discern the specific culprit, such as a pair of quail hunters negligently discharging their shotguns toward a fellow hunter (Summers v. Tice, 33 Cal. 2d 80 (1948)) or one member of a hospital operating room screwing up (Ybarra v. Spangard, 25 Cal. 2d 486 (1944)), but the Sindell opinion puts a defendant on the hook merely for being in the marketplace. The opinion repeatedly cites a Fordham Law Review article, and in an oral memoir Justice Mosk stated that the article is what gave him the idea. Let that serve as proof of the pernicious influence of law review articles. Surely, we cannot be the only practitioner who regards law review articles as being somewhat useful to the extent they collect and categorize cases, but invariably useless when they go on to propose some new 'solution'.
The question back in the 1980s was whether Sindell was blazing a new trail or whether it was an aberration, a dead-end. We think it was mostly the latter. Gianvito is the latest example of a court refusing to buy the Sindell burden-and-cost-shifting theory. And courts have usually refused to extend Sindell beyond DES. True, the resolution of asbestos and Agent Orange litigation had some Sindell-stink. But they are isolated, regrettable exceptions. Most products are not perfectly fungible. Not all manufacturers act in the same way. Thus, in Skipworth v. Lead Industries Ass'n, 690 A.2d 169 (Pa. 1997), the court declined to apply market share liability to manufacturers of lead-based paint. Lead-based paint is not fungible. Plus, the house in question had been around for a century.
We are not comfortable with collective responsibility. We want evidence that a particular defendant did something wrong and harmed this particular plaintiff. If we remember correctly, in A Civil Action (the book, not the movie) there is a discussion of a hypothetical involving a plaintiff who was hit by a school bus. The plaintiff could not identify the particular school bus. There were two school bus companies in town -- call them A and B. Assume that A has 80 percent of the buses in town, and 80 percent of the business. Is that 80 percent share enough to prove by a preponderance of the evidence that A was liable? Or should the plaintiff recover 80 percent of her damages from A and 20 percent from B? Don't these approaches, while making sense on some sort of macro-epidemiological-social-insurance level, offend one's sense of justice?
On the whole, it seems to us that the judiciary has retreated from activism. Most judges are content to interpret law rather than engage in social engineering. Judicial activism is perilous. If you are going to act like a policy maker, then you will be treated like one. That is why SCOTUS confirmation hearings turned so ugly. If judges will make policy, they need to answer questions about their policy predilections. So the logic goes, anyway. Mind you, we write this hot on the heels of the Affordable Care Act oral arguments. It's heady stuff when we are thrust back on thoughts of Wickard and Lochner.
This is not to say that we are completely out of the woods. Sindell has mostly been relegated to the ash-heap of legal history. But its notion of assigning liability to defendants that did not manufacture the product in question has not completely vanished. Not surprisingly, it was a California court that issued the execrable Conte opinion, permitting a brand manufacturer to be held liable to a plaintiff who took the generic product. As we explained here, Conte is even worse than Sindell because the allegedly limiting factors in Sindell were absent in Conte. In Conte, the manufacturer of the peoduct at issue was known, and there was no long-delayed injury. We look forward to the day when the Conte doctrine is only a bad memory.
Proust wrote A la Recherche du Temps Perdu, which properly translates into In Search of Lost Time, though it traditionally has been called Remembrance of Things Past. Proust offered a theory of voluntary and involuntary memory. (Proust's father, by the way, was an epidemiologist). A voluntary memory is retrieved via conscious effort. Quick: who was your third-grade teacher? By contrast, an involuntary memory hits us unexpectedly. The most famous example of the latter is Proust's recollection of childhood after sniffing some fresh-baked Madeleines. That reminds us of our Evidence professor who said you could refresh a witness's recollection with anything, including a plate of spaghetti.
As we get older, we are getting way worse at voluntary memory, and way more susceptible to involuntary memory.
The other day we saw a very short opinion out of New York called Gianvito v. Premo Laboratories, (N.Y. App. Div., 1st Dept. March 20, 2012). The plaintiffs "allege that they suffered injury due to in utero exposure to the estrogen drug Diethylstilbrenol (DES), and they urge application of the 'market share' theory of liability." In about a page and a half, the Gianvito court decided that New Jersey law applies, that "New Jersey has not formally adopted a market share theory of liability in DES or similar cases," that "such a theory cannot be found based on dicta" from New Jersey cases, and that "to the extent New Jersey law is unsettled on this issue, we decline to expand the law therein to allow plaintiffs to allege a market share theory." It is the right result.
It also brought back memories of our Torts class in law school. These are not necessarily happy memories. Suspicion is provoked when we hear somebody look back with fondness at first year in law school. Still, we learned a couple of things that are worth holding onto besides the lyrics to "Rock the Casbah". For instance, we will always remember how the case of Sindell v. Abbott Laboratories, 26 Cal. 3d 588 (1980), introduced us to the fact that the law, especially in California, could be utterly crazy. It was not quite a loss of innocence, but it helped prepare us for a couple of decades of batty rulings.
The plaintiff in Sindell was a woman who had developed cancer as a result of her mother's use of DES during pregnancy. Because approximately 200 different companies had manufactured DES, and because so much time had passed, the plaintiff could not identify the manufacturer of the particular DES her mother had taken. She sued the five biggest DES manufacturers, which sold 90% of the DES during the relevant time. What to do? In a 4-3 opinion authored by Justice Mosk, the California Supreme Court held that the plaintiff could proceed on a market share theory of liability. The rule was that if all the defendants are potential tortfeasors, the product is fungible, the plaintiff is legitimately unable to identify the product that harmed her, and a substantial share of the manufacturers who produced the product during the relevant time period are named as defendants, then a rebuttable presumption arises in favor of the plaintiff and she can collect from each defendant a percentage of her damages equal to that defendant's market share at the time the product was used. A manufacturer may rebut the presumption by showing that its product could not possibly have injured the plaintiff.
The Sindell opinion was considered a Very Big Deal in the 1980s. It continued a trend in California law of treating the tort system as a form of social insurance. The plaintiff was absolutely innocent, whereas the defendants had made and sold a dangerous drug. The manufacturers were in a better position than the plaintiff to bear the costs and guard against future harm. Arguably, deterrence would be undermined if all manufacturers of a dangerous product eluded liability. Sindell was judicial policy-making plain and simple. You could debate whether it was good or bad policy, but you could not pretend it was not policy.
Sindell was also a pretty long walk down the road of collective responsibility. Sure, there have been other cases involving joint tortfeasors where it was hard to discern the specific culprit, such as a pair of quail hunters negligently discharging their shotguns toward a fellow hunter (Summers v. Tice, 33 Cal. 2d 80 (1948)) or one member of a hospital operating room screwing up (Ybarra v. Spangard, 25 Cal. 2d 486 (1944)), but the Sindell opinion puts a defendant on the hook merely for being in the marketplace. The opinion repeatedly cites a Fordham Law Review article, and in an oral memoir Justice Mosk stated that the article is what gave him the idea. Let that serve as proof of the pernicious influence of law review articles. Surely, we cannot be the only practitioner who regards law review articles as being somewhat useful to the extent they collect and categorize cases, but invariably useless when they go on to propose some new 'solution'.
The question back in the 1980s was whether Sindell was blazing a new trail or whether it was an aberration, a dead-end. We think it was mostly the latter. Gianvito is the latest example of a court refusing to buy the Sindell burden-and-cost-shifting theory. And courts have usually refused to extend Sindell beyond DES. True, the resolution of asbestos and Agent Orange litigation had some Sindell-stink. But they are isolated, regrettable exceptions. Most products are not perfectly fungible. Not all manufacturers act in the same way. Thus, in Skipworth v. Lead Industries Ass'n, 690 A.2d 169 (Pa. 1997), the court declined to apply market share liability to manufacturers of lead-based paint. Lead-based paint is not fungible. Plus, the house in question had been around for a century.
We are not comfortable with collective responsibility. We want evidence that a particular defendant did something wrong and harmed this particular plaintiff. If we remember correctly, in A Civil Action (the book, not the movie) there is a discussion of a hypothetical involving a plaintiff who was hit by a school bus. The plaintiff could not identify the particular school bus. There were two school bus companies in town -- call them A and B. Assume that A has 80 percent of the buses in town, and 80 percent of the business. Is that 80 percent share enough to prove by a preponderance of the evidence that A was liable? Or should the plaintiff recover 80 percent of her damages from A and 20 percent from B? Don't these approaches, while making sense on some sort of macro-epidemiological-social-insurance level, offend one's sense of justice?
On the whole, it seems to us that the judiciary has retreated from activism. Most judges are content to interpret law rather than engage in social engineering. Judicial activism is perilous. If you are going to act like a policy maker, then you will be treated like one. That is why SCOTUS confirmation hearings turned so ugly. If judges will make policy, they need to answer questions about their policy predilections. So the logic goes, anyway. Mind you, we write this hot on the heels of the Affordable Care Act oral arguments. It's heady stuff when we are thrust back on thoughts of Wickard and Lochner.
This is not to say that we are completely out of the woods. Sindell has mostly been relegated to the ash-heap of legal history. But its notion of assigning liability to defendants that did not manufacture the product in question has not completely vanished. Not surprisingly, it was a California court that issued the execrable Conte opinion, permitting a brand manufacturer to be held liable to a plaintiff who took the generic product. As we explained here, Conte is even worse than Sindell because the allegedly limiting factors in Sindell were absent in Conte. In Conte, the manufacturer of the peoduct at issue was known, and there was no long-delayed injury. We look forward to the day when the Conte doctrine is only a bad memory.
Monday, March 12, 2012
An Appreciation of My Cousin Vinny - Twenty Years Later
We were delighted when Jim Dedman of the Abnormal Use blog asked us to help celebrate the twentieth anniversary of My Cousin Vinny. We cannot resist smiling when we think of that movie. 1992 was a big year for some of us - marriage, changing jobs, and buying a house in LA just before the SoCal real estate market was about to take a very long, very ugly downhill run. It was our last year before big-time family responsibilities. Life seemed less serious than it does now. We filled our life with silly things, including silly movies. We had very low expectations for My Cousin Vinny before the lights went down. Most legal movies are maddeningly simplistic, even stupid. Moreover, it's not as if Joe Pesci was considered a strong movie lead - a great second banana, sure (Raging Bull), but he seemed a pure character (or caricature) actor. We had pretty much forgotten Ralph Macchio from Karate Kid. And who the heck was Marisa Tomei?
Well, we were sure going to find out. While there have been stories/rumors belittling Tomei's Academy Award for Best Supporting Actress, the fact is that she is superb in every way as Vinny's long-suffering fiance, Mona Lisa Vito. ("My biological clock is ticking like this! [stomping on the porch]") Tomei's career since has had some quiet times, but she was wonderful in a Seinfeld cameo, and then came back to remind us of her talents in The Wrestler. The fact is that every performance in My Cousin Vinny is spot-on perfect. Fred Gwynne is most famous for playing Herman Munster, but he will also forever be the ultimate nay-saying Judge Chamberlain Haller in My Cousin Vinny. (“What is a yute?”) It was Gwynne’s last role before he died later that year of pancreatic cancer. At one point in the film you can espy Judge Haller’s Yale diploma. In reality, Gwynne was a Harvard man. Lane Smith plays District Attorney Jim Trotter and is splendidly aggressive, effective, and, ultimately, fair-minded. Most important, Pesci was brilliant and brave and blustery and profane as Vinny LaGuardia Gambini (that name being a nice little mash-up of NYC political and criminal history).
Maybe our low expectations made us like the movie even more. We have a friend who says her favorite movie this year was The Help. She saw it on cable, well after it had been pooh-poohed by many cinema and cultural critics. But she simply liked the story and the acting. By contrast, she had paid bigger bucks for movie-nights-out to see The Descendants and The Artist, and found them underwhelming. So maybe My Cousin Vinny gets something of a free ride by being the little movie that could.
But we think there's more to it than that. If you compare My Cousin Vinny against the other movies in 1992 that earned Oscars, such as Scent of a Woman, Unforgiven, Aladdin, The Player, and Howard's End -- well, which would you rather watch this Friday night? My Cousin Vinny holds up well. There have occasionally been hints of a sequel. As we found out in a couple of posts a couple of weeks ago, sequels misfire more often than not. While we wouldn't mind spending more time with Vinny and Mona Lisa, we tremble at the prospect of some opportunistic piece of dreck ruining them.
We are also fond of the Alabama setting for My Cousin Vinny. By sheer happenstance, we have had a lot of experience with cases in Alabama and working with Alabama lawyers. Again, maybe it's just happenstance, but our experiences have invariably been good and pleasurable. All the Alabama lawyers we've dealt with have been smart, hard-working, and personable. They have been polite and creative and funny. Once, a Birmingham lawyer helped us explore famous legal history by taking us to Ollie's Barbecue, which was the subject of a famous civil rights case. See Katzenbach v. McClung, 379 U.S. 294 (1964). Sure enough it was (we don't think it exists anymore) close to an interstate highway, which was part of the Supreme Court's commerce clause analysis. Plus, the pulled pork was delectable, especially doused with the vinegary sauce. (If there's one thing we love more than the law it's good BBQ. If we ever write about The Firm, expect a long reverie on great Memphis BBQ joints like Corky's and The Rendezvous. And when are our Shook friends going to take us to Arthur Bryant's, or that BBQ place at a gas station?)
Further, the most famous fictional lawyer-hero in American history is from Alabama. Actually, make that hero, period, not just lawyer-hero. The American Film Institute conducted a poll and ranked Atticus Finch from To Kill a Mockingbird as the number one movie hero ever, ahead of James Bond and Indiana Jones. While Atticus Finch is fictional, he was based on Harper Lee's real-life lawyer dad. When we were a hiring partner, the University of Alabama Law School sent us a special edition of To Kill a Mockingbird. We treasure it still. So, yeah, we like Alabama a lot. We get the feeling that Vinny ended up liking it a lot, too. (All that being said, we hear the movie was shot in Georgia.)
We have taught some classes in trial advocacy and have sometimes found it useful to present film clips. Showing is better than telling. But there aren't many useful film clips from actual trials. So we turn to movies and tv. Those made-up trials aren't realistic. There is necessarily a lot of compression in movies and tv. Document reviews and seven-hour depositions are blissfully absent. Opening statements are three minutes, not three hours, long. And, lo and behold, they always seem better than real life. Here's the surprise: My Cousin Vinny offers more useful examples of effective trial advocacy than just about any other film. Start with the prosecutor's opening statement. It is really short and really effective. Lane Smith tells the story of the robbery in simple, concrete terms, and emphasizes the unique appearance of the getaway car. He varies his pace and modulation. He raises his voice only when describing the shots ringing out. He tells a story without wasting a moment. When we prosecuted cases, we were taught to refer to "the defendants," and never to dignify them with their names. But the DA in My Cousin Vinny repeatedly mentions the names of the defendants, Rothenstein and Gambini, as if reminding the jury of the defendants' otherness. If you compare the prosecutor's opening statement with that from another 1992 film, A Few Good Men, you'll probably prefer the Alabama prosecutor to the slick military prosecutor played by Kevin Bacon.
Our favorite object-lessons from My Cousin Vinny involve Vinny's cross-examinations of the three prosecution eye-witnesses. The first cross-examination, of Mr. Tipton, is the only one that gets combative. Sometimes it is okay to bully a witness. Vinny shows that the witness did not have the time to observe the comings and goings at the Sac-O-Suds. It all comes down to how long it takes to make grits from scratch. (Vinny: “Oh, you like grits? I like grits too. How do you like your grits? Regular, creamy, or al dente?”) Earlier in the movie, Vinny got into a conversation with a local about how to make grits. Perhaps you can chalk it up to coincidence. Only in the movies, right? Maybe not. When you are at trial, you need to immerse yourself in the facts of the case, all sorts of facts. You need to visit the scene and you need to be open to all sorts of things. You never know what will become important. Sometimes just showing a witness that you know all sorts of things makes them worry you know other truths, and makes them compliant. Vinny plays on Mr. Tipton’s pride in his grits preparation, and then undermines his testimony with well-earned ridicule (“Do the laws of physics somehow cease to operate in your kitchen?”).
Our favorite cross-examination is the second one, of Mr. Crane. Vinny slices and dices an eyewitness by showing that his view was necessarily obscured. The beauty of the cross-examination is how Vinny lingers over his good points. Instead, of merely challenging the witness by saying in one ham-handed swoop that the witness could not have had a good view through a dirty window and past trees and bushes, Vinny brings out each obstruction gradually. He makes the witness count the trees and bushes. Then he repeats these good facts slowly and elegantly, laying out photographs one by one:"You could positively identify the defendants for a moment of two seconds looking through this dirty window, this crud-covered screen, these trees with all those leaves, and I don’t know how many bushes [makes Mr. Crane count them, even correcting him]?" That is a technique available to every trial lawyer: find your good points and emphasize them through repetition and slowing things down.
In the third cross examination, of Mrs. Constance Riley, Vinny shows that an old lady's eyesight was inadequate for her to identify the defendants. Nothing special here -- it's mostly a matter of good luck. But watch how nice Vinny is to the witness. (Vinny: “What do you think now, dear?" Mrs. Riley: “I'm thinking of getting thicker glasses.”) Sometimes you do better with a light hand than with bullying.
You can learn a lot from My Cousin Vinny, and it's an enjoyable education. Do not underrate it because it is a comedy. We remember how police officer friends of ours used to tell us all the time that the Barney Miller sitcom was way more realistic than any cops-and-robbers-shoot-em-up about what law enforcement people actually do on a day-to-day basis. In the August 2008 edition of the ABA Journal, My Cousin Vinny was ranked as the third greatest legal movie, after To Kill a Mockingbird and Twelve Angry Men. It’s hard to argue with that.
When we teach trial advocacy and use clips from My Cousin Vinny, we often contrast it with older depictions of trials that aren't nearly as realistic or useful. When we were kids, our image of lawyers came from the old tv show, Perry Mason. If we say the name "Perry Mason" to the Drug and Device Law Daughter, we get a blank look. It's hard for us to imagine this, but she has no idea who that is. For our generation, Perry Mason made us think that a cross-examination was not effective unless it turned the witness into a blubbering puddle, confessing to murder. Most lawyers have never had what some of us still call a "Perry Mason moment."
Perry Mason and My Cousin Vinny seem as different as night and day. But not everything about Perry Mason was hokum. The legal discussions are usually correct. And the judges in the old tv series aren't too different in demeanor from what we encounter in an average courtroom. A couple of actors rotated playing the judge in Perry Mason episodes. Our favorite was a sort of tough judge, who glared a lot and often shut down prosecutor Hamilton Burger's objections. The actor was S. John Launer, who kept busy as an actor, mostly in smaller parts. He was in I Was a Teenage Werewolf, Jailhouse Rock, Marnie, and other crucial bits of mid-century American culture. You might not ever have heard of S. John Launer until today. But he did good, honorable work. He also had a son who was bitten by the entertainment bug. His son was Dale Launer. Dale Launer wrote screenplays. One of those screenplays was Dirty Rotten Scoundrels, starring Michael Caine and Steve Martin.
Another was My Cousin Vinny.
Well, we were sure going to find out. While there have been stories/rumors belittling Tomei's Academy Award for Best Supporting Actress, the fact is that she is superb in every way as Vinny's long-suffering fiance, Mona Lisa Vito. ("My biological clock is ticking like this! [stomping on the porch]") Tomei's career since has had some quiet times, but she was wonderful in a Seinfeld cameo, and then came back to remind us of her talents in The Wrestler. The fact is that every performance in My Cousin Vinny is spot-on perfect. Fred Gwynne is most famous for playing Herman Munster, but he will also forever be the ultimate nay-saying Judge Chamberlain Haller in My Cousin Vinny. (“What is a yute?”) It was Gwynne’s last role before he died later that year of pancreatic cancer. At one point in the film you can espy Judge Haller’s Yale diploma. In reality, Gwynne was a Harvard man. Lane Smith plays District Attorney Jim Trotter and is splendidly aggressive, effective, and, ultimately, fair-minded. Most important, Pesci was brilliant and brave and blustery and profane as Vinny LaGuardia Gambini (that name being a nice little mash-up of NYC political and criminal history).
Maybe our low expectations made us like the movie even more. We have a friend who says her favorite movie this year was The Help. She saw it on cable, well after it had been pooh-poohed by many cinema and cultural critics. But she simply liked the story and the acting. By contrast, she had paid bigger bucks for movie-nights-out to see The Descendants and The Artist, and found them underwhelming. So maybe My Cousin Vinny gets something of a free ride by being the little movie that could.
But we think there's more to it than that. If you compare My Cousin Vinny against the other movies in 1992 that earned Oscars, such as Scent of a Woman, Unforgiven, Aladdin, The Player, and Howard's End -- well, which would you rather watch this Friday night? My Cousin Vinny holds up well. There have occasionally been hints of a sequel. As we found out in a couple of posts a couple of weeks ago, sequels misfire more often than not. While we wouldn't mind spending more time with Vinny and Mona Lisa, we tremble at the prospect of some opportunistic piece of dreck ruining them.
We are also fond of the Alabama setting for My Cousin Vinny. By sheer happenstance, we have had a lot of experience with cases in Alabama and working with Alabama lawyers. Again, maybe it's just happenstance, but our experiences have invariably been good and pleasurable. All the Alabama lawyers we've dealt with have been smart, hard-working, and personable. They have been polite and creative and funny. Once, a Birmingham lawyer helped us explore famous legal history by taking us to Ollie's Barbecue, which was the subject of a famous civil rights case. See Katzenbach v. McClung, 379 U.S. 294 (1964). Sure enough it was (we don't think it exists anymore) close to an interstate highway, which was part of the Supreme Court's commerce clause analysis. Plus, the pulled pork was delectable, especially doused with the vinegary sauce. (If there's one thing we love more than the law it's good BBQ. If we ever write about The Firm, expect a long reverie on great Memphis BBQ joints like Corky's and The Rendezvous. And when are our Shook friends going to take us to Arthur Bryant's, or that BBQ place at a gas station?)
Further, the most famous fictional lawyer-hero in American history is from Alabama. Actually, make that hero, period, not just lawyer-hero. The American Film Institute conducted a poll and ranked Atticus Finch from To Kill a Mockingbird as the number one movie hero ever, ahead of James Bond and Indiana Jones. While Atticus Finch is fictional, he was based on Harper Lee's real-life lawyer dad. When we were a hiring partner, the University of Alabama Law School sent us a special edition of To Kill a Mockingbird. We treasure it still. So, yeah, we like Alabama a lot. We get the feeling that Vinny ended up liking it a lot, too. (All that being said, we hear the movie was shot in Georgia.)
We have taught some classes in trial advocacy and have sometimes found it useful to present film clips. Showing is better than telling. But there aren't many useful film clips from actual trials. So we turn to movies and tv. Those made-up trials aren't realistic. There is necessarily a lot of compression in movies and tv. Document reviews and seven-hour depositions are blissfully absent. Opening statements are three minutes, not three hours, long. And, lo and behold, they always seem better than real life. Here's the surprise: My Cousin Vinny offers more useful examples of effective trial advocacy than just about any other film. Start with the prosecutor's opening statement. It is really short and really effective. Lane Smith tells the story of the robbery in simple, concrete terms, and emphasizes the unique appearance of the getaway car. He varies his pace and modulation. He raises his voice only when describing the shots ringing out. He tells a story without wasting a moment. When we prosecuted cases, we were taught to refer to "the defendants," and never to dignify them with their names. But the DA in My Cousin Vinny repeatedly mentions the names of the defendants, Rothenstein and Gambini, as if reminding the jury of the defendants' otherness. If you compare the prosecutor's opening statement with that from another 1992 film, A Few Good Men, you'll probably prefer the Alabama prosecutor to the slick military prosecutor played by Kevin Bacon.
Our favorite object-lessons from My Cousin Vinny involve Vinny's cross-examinations of the three prosecution eye-witnesses. The first cross-examination, of Mr. Tipton, is the only one that gets combative. Sometimes it is okay to bully a witness. Vinny shows that the witness did not have the time to observe the comings and goings at the Sac-O-Suds. It all comes down to how long it takes to make grits from scratch. (Vinny: “Oh, you like grits? I like grits too. How do you like your grits? Regular, creamy, or al dente?”) Earlier in the movie, Vinny got into a conversation with a local about how to make grits. Perhaps you can chalk it up to coincidence. Only in the movies, right? Maybe not. When you are at trial, you need to immerse yourself in the facts of the case, all sorts of facts. You need to visit the scene and you need to be open to all sorts of things. You never know what will become important. Sometimes just showing a witness that you know all sorts of things makes them worry you know other truths, and makes them compliant. Vinny plays on Mr. Tipton’s pride in his grits preparation, and then undermines his testimony with well-earned ridicule (“Do the laws of physics somehow cease to operate in your kitchen?”).
Our favorite cross-examination is the second one, of Mr. Crane. Vinny slices and dices an eyewitness by showing that his view was necessarily obscured. The beauty of the cross-examination is how Vinny lingers over his good points. Instead, of merely challenging the witness by saying in one ham-handed swoop that the witness could not have had a good view through a dirty window and past trees and bushes, Vinny brings out each obstruction gradually. He makes the witness count the trees and bushes. Then he repeats these good facts slowly and elegantly, laying out photographs one by one:"You could positively identify the defendants for a moment of two seconds looking through this dirty window, this crud-covered screen, these trees with all those leaves, and I don’t know how many bushes [makes Mr. Crane count them, even correcting him]?" That is a technique available to every trial lawyer: find your good points and emphasize them through repetition and slowing things down.
In the third cross examination, of Mrs. Constance Riley, Vinny shows that an old lady's eyesight was inadequate for her to identify the defendants. Nothing special here -- it's mostly a matter of good luck. But watch how nice Vinny is to the witness. (Vinny: “What do you think now, dear?" Mrs. Riley: “I'm thinking of getting thicker glasses.”) Sometimes you do better with a light hand than with bullying.
You can learn a lot from My Cousin Vinny, and it's an enjoyable education. Do not underrate it because it is a comedy. We remember how police officer friends of ours used to tell us all the time that the Barney Miller sitcom was way more realistic than any cops-and-robbers-shoot-em-up about what law enforcement people actually do on a day-to-day basis. In the August 2008 edition of the ABA Journal, My Cousin Vinny was ranked as the third greatest legal movie, after To Kill a Mockingbird and Twelve Angry Men. It’s hard to argue with that.
When we teach trial advocacy and use clips from My Cousin Vinny, we often contrast it with older depictions of trials that aren't nearly as realistic or useful. When we were kids, our image of lawyers came from the old tv show, Perry Mason. If we say the name "Perry Mason" to the Drug and Device Law Daughter, we get a blank look. It's hard for us to imagine this, but she has no idea who that is. For our generation, Perry Mason made us think that a cross-examination was not effective unless it turned the witness into a blubbering puddle, confessing to murder. Most lawyers have never had what some of us still call a "Perry Mason moment."
Perry Mason and My Cousin Vinny seem as different as night and day. But not everything about Perry Mason was hokum. The legal discussions are usually correct. And the judges in the old tv series aren't too different in demeanor from what we encounter in an average courtroom. A couple of actors rotated playing the judge in Perry Mason episodes. Our favorite was a sort of tough judge, who glared a lot and often shut down prosecutor Hamilton Burger's objections. The actor was S. John Launer, who kept busy as an actor, mostly in smaller parts. He was in I Was a Teenage Werewolf, Jailhouse Rock, Marnie, and other crucial bits of mid-century American culture. You might not ever have heard of S. John Launer until today. But he did good, honorable work. He also had a son who was bitten by the entertainment bug. His son was Dale Launer. Dale Launer wrote screenplays. One of those screenplays was Dirty Rotten Scoundrels, starring Michael Caine and Steve Martin.
Another was My Cousin Vinny.
Monday, February 27, 2012
Winning isn't Everything
Last night we watched the Academy Awards presentations. We're never sure why we do this. Why do we care about the film preferences of a notoriously unreliable, insular group whom you might meet at Nate n' Al's, but never at Home Depot? Then again, our whole business is built around other peoples' opinions -- judges, juries, clients. (No comment on their reliability or insularity.) We confess to being utterly riveted by the screen shot of the nominees at the moment the winner is announced. It's the image of the losers that is most arresting -- that flash of disappointment shifting seamlessly into a strained smile. We're not supposed to think of winners and losers when it comes to the Oscars. In the old days, the presenters would tear open the envelope and say "And the winner is …." Now they say, "And the Oscar goes to…." The artist will consider the idea of picking winners and losers to be crass. That was the reason given by George C. Scott for declining his Best Actor award for Patton.
We often hear that the real honor is just being nominated. That sounds like a mealy-mouthed rationalization, but it's true. Nominations recognize merit. Who actually wins can seem a matter of happenstance and caprice. To be sure, we're not saying the nominations always get it right. For instance, how is it that Gary Oldman has never been nominated until this year? There's also the embarrassing example of Hoop Dreams, which might have been the best film in 1994, but it wasn't even nominated as Best Documentary. One theory is that, at almost three hours, it was just too long for the voters (median age 62). They needed bathroom breaks.
But what really stands out over the years are winners and losers that make no sense. When you remember that Ordinary People beat out Raging Bull for Best Picture, that Oliver! beat 2001: A Space Odyssey, that How Green Was My Valley beat Citizen Kane, that the same year Hoop Dreams got stiffed Forrest Gump beat Pulp Fiction, and that Hitchcock never won as Best Director, you merely shake your head. Forget about it; it's Chinatown. (A well-deserved winner.)
One of the nominated pictures this year was Moneyball, which is about how the general manager of the Oakland A's adopted new analytical methods and metrics to gain a comparative advantage and win more games than better financed baseball clubs. But it turns out that the comparative advantage could only get the team into the playoffs. Once it all came down to short series, anything could -- and did -- happen. Maybe Derek Jeter would make an unreal defensive play and snuff out a rally. Ultimately, winning and losing has more of a freak-factor than we want to acknowledge. We Phillies fans are pretty certain we were rooting for the best club in the major leagues the last two years, but we ended up running into so-so teams that happened to get hot at exactly the right time. We're not sure what to think about the Buffalo Bills. No other team made it to four straight Super Bowls. It is an incredible accomplishment. But to lose all four of them makes you wonder whether it was bad luck (a missed field goal or missing helmet), some fatal deficiency, or, as suggested in an episode of The X-Files, the result of a vast conspiracy headed by the Cigarette Smoking Man.
We're not Citizen Kane or the Buffalo Bills, but we're happy that this blog consistently gets nice nominations for being the best at what it does. We've never played the game of trolling for the popular votes needed to crown the "winner." No Weinstein Company Oscar campaign for us. Some blogs do seem to do that, and that's fine. Honestly, it's an honor just to be nominated. As Justice Hugo Black said, "It is the paradox of life that the way to miss pleasure is to seek it first."
But in our day jobs as litigators, we care about winning. Our clients certainly care. We are the help. Good lawyering definitely makes a difference. Still, nothing guarantees winning. Some of the very best trial lawyers out there have experienced horrendous losses. Stuff happens, and not just at midnight in Paris. Every day, courtrooms set the scene for stealth jurors, batty rulings, and unforeseeable witness implosions that steal defeat from the jaws of victory. Sometimes, too, the facts are simply difficult. For whatever reason, something weird and unexpected is bound to show up at trial, like those dinosaurs in Tree of Life.
We know an in-house counsel who likes to ask outside lawyers to name their biggest loss. His theory -- and it makes a lot of sense -- is that a truly good lawyer has been given some gruesomely tough cases. It’s simply not possible to win them all. When a lawyer brags about an unblemished record, we tend to react with either skepticism or a suspicion that the lawyer shies away from, or isn't trusted with, the hardest cases.
When we worked at the U.S. Attorney's office, we frequently sought advice from the head of the Criminal Division. He had been there for decades and was a brilliant curmudgeon. Real old school. A war horse. On the wall behind his desk was a poster of Winston Churchill pointing at you, with the words "Deserve Victory" writ large across the bottom. It was from World War II, but it was the best possible creed for what we were doing on a day-to-day basis. It's been 20 years since we first stared at that poster, and now we have our own copy of it. We continue to find it inspiring. Winning or losing involves some things you can control and some things you can't. Immerse yourself in the facts, be diligent and creative in arguing the law, and forge an emotional connection with the audience. If need be, get extremely loud and incredibly close with a witness. You might not win, and you certainly won't be handed an Oscar, but you will deserve victory.
(By the way, we thought last night that The Descendants deserved to win, and not just because it involved the Rule Against Perpetuities.)
We often hear that the real honor is just being nominated. That sounds like a mealy-mouthed rationalization, but it's true. Nominations recognize merit. Who actually wins can seem a matter of happenstance and caprice. To be sure, we're not saying the nominations always get it right. For instance, how is it that Gary Oldman has never been nominated until this year? There's also the embarrassing example of Hoop Dreams, which might have been the best film in 1994, but it wasn't even nominated as Best Documentary. One theory is that, at almost three hours, it was just too long for the voters (median age 62). They needed bathroom breaks.
But what really stands out over the years are winners and losers that make no sense. When you remember that Ordinary People beat out Raging Bull for Best Picture, that Oliver! beat 2001: A Space Odyssey, that How Green Was My Valley beat Citizen Kane, that the same year Hoop Dreams got stiffed Forrest Gump beat Pulp Fiction, and that Hitchcock never won as Best Director, you merely shake your head. Forget about it; it's Chinatown. (A well-deserved winner.)
One of the nominated pictures this year was Moneyball, which is about how the general manager of the Oakland A's adopted new analytical methods and metrics to gain a comparative advantage and win more games than better financed baseball clubs. But it turns out that the comparative advantage could only get the team into the playoffs. Once it all came down to short series, anything could -- and did -- happen. Maybe Derek Jeter would make an unreal defensive play and snuff out a rally. Ultimately, winning and losing has more of a freak-factor than we want to acknowledge. We Phillies fans are pretty certain we were rooting for the best club in the major leagues the last two years, but we ended up running into so-so teams that happened to get hot at exactly the right time. We're not sure what to think about the Buffalo Bills. No other team made it to four straight Super Bowls. It is an incredible accomplishment. But to lose all four of them makes you wonder whether it was bad luck (a missed field goal or missing helmet), some fatal deficiency, or, as suggested in an episode of The X-Files, the result of a vast conspiracy headed by the Cigarette Smoking Man.
We're not Citizen Kane or the Buffalo Bills, but we're happy that this blog consistently gets nice nominations for being the best at what it does. We've never played the game of trolling for the popular votes needed to crown the "winner." No Weinstein Company Oscar campaign for us. Some blogs do seem to do that, and that's fine. Honestly, it's an honor just to be nominated. As Justice Hugo Black said, "It is the paradox of life that the way to miss pleasure is to seek it first."
But in our day jobs as litigators, we care about winning. Our clients certainly care. We are the help. Good lawyering definitely makes a difference. Still, nothing guarantees winning. Some of the very best trial lawyers out there have experienced horrendous losses. Stuff happens, and not just at midnight in Paris. Every day, courtrooms set the scene for stealth jurors, batty rulings, and unforeseeable witness implosions that steal defeat from the jaws of victory. Sometimes, too, the facts are simply difficult. For whatever reason, something weird and unexpected is bound to show up at trial, like those dinosaurs in Tree of Life.
We know an in-house counsel who likes to ask outside lawyers to name their biggest loss. His theory -- and it makes a lot of sense -- is that a truly good lawyer has been given some gruesomely tough cases. It’s simply not possible to win them all. When a lawyer brags about an unblemished record, we tend to react with either skepticism or a suspicion that the lawyer shies away from, or isn't trusted with, the hardest cases.
When we worked at the U.S. Attorney's office, we frequently sought advice from the head of the Criminal Division. He had been there for decades and was a brilliant curmudgeon. Real old school. A war horse. On the wall behind his desk was a poster of Winston Churchill pointing at you, with the words "Deserve Victory" writ large across the bottom. It was from World War II, but it was the best possible creed for what we were doing on a day-to-day basis. It's been 20 years since we first stared at that poster, and now we have our own copy of it. We continue to find it inspiring. Winning or losing involves some things you can control and some things you can't. Immerse yourself in the facts, be diligent and creative in arguing the law, and forge an emotional connection with the audience. If need be, get extremely loud and incredibly close with a witness. You might not win, and you certainly won't be handed an Oscar, but you will deserve victory.
(By the way, we thought last night that The Descendants deserved to win, and not just because it involved the Rule Against Perpetuities.)
Monday, February 13, 2012
Mass Torts Made Perfectly Convivial
Last week we attended a Mass Torts Forum/Roundtable for Judges and Lawyers in Philadelphia. It was run by Mass Torts Made Perfect (MTMP), an organization created by plaintiff lawyers. We spotted only five defense lawyers at the Forum, surrounded by many, many plaintiff lawyers. And it was perfectly delightful. The plaintiff lawyers were invariably civil and gracious. The folks at MTMP want to host more events where both plaintiff and defense lawyers get together. If the events are all like this one, there is a reason to be optimistic. The goal makes sense, because judges are insistent that plaintiff and defense lawyers work as many things out as possible. It’s easier to do that if the adversaries actually know and trust each other.
And make no mistake about it: judges do want the opposing lawyers to clear away as many squabbles as possible. The Forum was built around an impressive collection of judges: Garrett Brown, recently retired Chief Judge from the District of New Jersey (he presided over the Fosamax Femur MDL), Donovan Frank, D. Minnesota (Guidant MDL), David Herndon, Chief Judge, S.D. Illinois (Yaz MDL), Daniel Stack, Special Master in the Yaz MDL), and Sandra Moss, Court of Common Pleas in Philadelphia (as she said, every mass tort from A-Y, and probably soon Z). It was what we in the business call a hot panel. All the judges were thoughtful and engaging. Here are some of the more interesting points that were ventilated during the Forum:
- Addressing case management issues early is in everybody’s interest. Coordination, including between federal and state courts, can aid efficiency and reduce costs. It can also make it harder for parties to play jurisdictions against each other. An MDL can be a “life-changing” experience for a court. It starts to feel like a huge construction project, where landmarks along the way signal progress. Judges also look for “economies of scale.”
- Discovery issues “do not improve with time.”
- Electronically stored information has prompted a wholesale change in the legal culture. There is so much more discovery, and it is so much more complex and expensive to produce. That, in itself, can constitute settlement leverage. The judges are aware of the various model orders, as well as the Sedona principles in this area. But one size does not fit all. Proportionality issues in this area are important and vexing. They are also not always susceptible to stipulation between the parties. Judges know that, as much as they want the parties to agree, in certain areas the judge is simply going to have to make a hard decision.
- Allocation of costs is another issue that remains contentious, but sometimes the most lively disputes are not between plaintiff and defense lawyers, but between various strata of plaintiff lawyers.
- Some judges advocate a staged or tiered approach to discovery. That approach might end up being more efficient and less expensive. Then again, it might not.
- Globalization is affecting litigation, just as it is affecting every other aspect of our lives. It can get complicated when a corporate-defendant is headquartered abroad, and it has documents in another country subject to very different laws. Some think that if a company is selling products in the United States, it must be subject to U.S. laws. Others acknowledge that it’s not as simple as that, and the niceties of foreign law might actually need to be respected.
- Judges are all over the map on how to select bellwether trials. There is still some support for letting each side pick their favorite cases, but it is possible that the best cases are not representative enough to mark out settlement values. Plus, plaintiffs can subvert the system by dismissing the defense picks at the last minute. Judges don’t like that. And here’s a piece of good news: most judges think it makes no sense to create a bellwether trial with multiple plaintiffs.
- Most judges are not a fan of imposing hard and fast time limits on the lawyers, but in rare instances they can make sense.
- Jury questionnaires can save time, but they can also miss nuances. It struck us how different the jury selection process is in federal versus Philly courts. In the former, typically the judge does all the questioning, and in the latter the judge is not even present.
- It usually takes something significant – at minimum, a trial date – that inspires the parties to get serious about settlement. This will doubtless not arrive as a surprise, but judges really, really like settlements. Some judges are especially eager to take part in settlement discussions, and others refer settlement issues out to other judges or mediators.
- Daubert is a powerful tool, but some judges feel over-Daubertized. The chief complaint involved Daubert motions that attack conclusions rather than methods, or that really go after the weight or credibility of the scientific evidence. One judge agreed to be a gatekeeper, but not “an armed guard.” Most judges are not eager to conduct a full-blown Daubert hearing with testimonial evidence and all the bells and whistles. A post-deposition affidavit submitted by an expert will be viewed by judges with a certain amount of skepticism.
Not all the good lines came from the judges. One plaintiff lawyer, upon learning he was seated on a panel next to one of the lawyers who had done the early briefing in the Daubert case, said he felt like he was meeting the person who first weaponized a killer virus. Everybody in the ballroom laughed, which must be some sort of good sign.
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