Zippers, coffee, Twitter and very tender man parts

I don’t really have time for this. I have two briefs due this week. The first is an opposition to a motion for summary judgment in a product liability case. The second is a reply brief in our consumer fraud class action against BP for failing to disclose debit card charges to Oregon gas purchasers. And if that’s not enough, I have legislative meetings this week on consumer legislation that would help end insurance abuses by covering Oregon insurance companies under the Unlawful Trade Practices Act.

All of that is an over-long explanation of why this post is going to be quick and somewhat dirty. Too many things.

So on the Twitter, I wandered into a conversation–if you can call it that–between Nicole Augenti (@Nicole1515), a Connecticut trial lawyer, and Ted Frank, @tedfrank*, a lawyer who I understand devotes most of his practice to objections in consumer class actions. Ted also blogs at the Manhattan Institute’s Point of Law blog, a blog that is supported by the Manhattan Institute, a well-known corporate-funded think tank devoted to re-design of the U.S. civil justice system to make it more corporate friendly. “Corporate friendly” is a euphemism. These smart people reportedly funded by the Koch brothers and a number of large corporations are bent on destroying the civil justice system through radical restrictions of the right to trial by jury.They do so through a number of initiatives, with allies like The Federalist Society, think tanks, blogs, coordinated message points, etc.

They are doing this through “tort reform”–an insidious notion that they know better than juries whether corporations should be held responsible when they misbehave. They are doing so through mandatory arbitration to ensure that consumer and employee claims never make it into the courtroom. And they are doing it through allied media and public relations firms.

So against this backdrop, Mr. Frank is called out for this particularly inane blog post. Ms. Augenti comically tweets: “So, Ted Frank (TORT REFORMER!) is mad he can’t sue for penis zipper injuries?? http://www.pointoflaw.com/archives/2013/03/zippers-and-mcdonalds-hot-coffee.php … ” The Twitter back and forth starts with a very smart, accomplished intellectual of the caliber of Ted Frank accusing Ms. Augenti of illiteracy and wondering whether she isn’t a walking malpractice trap.

But the point, which he doesn’t want to address, is how messed up Mr. Frank is on the law of product liability. He is too busy taking swipes at another pal of mine, Susan Saladoff, for her seminal work on the great documentary, Hot Coffee, the Movie.

So now let’s get to the errors of Mr. Frank’s analysis. That’s why I am writing this, after all.

According to Ted Frank, if Stella Liebeck, the consumer in the McDonald’s case, can sue because she burned herself on hot coffee, so can men who suffer injuries to delicate organs (informally referred to as the Johnson, the little brain, the schlong; more formally known as the penis) when using zippers.

How does Mr. Frank get to the schlong injury claim? He oversimplifies and misstates the law of product liability.  According to Mr. Frank, Susan Saladoff, who had a great run as a capable Oregon trial lawyer, advances the theory that product liability claims exist anytime someone or many people get injured by a product. He knows that he has oversimplified Susan’s point. She doesn’t say that.

What Mr. Frank ignores is that the consumer must prove that a product is unreasonably dangerous to pursue a product liability case. “So coffee is hot and everyone knows that,” is the prevailing knock on the McDonald’s case. What people don’t realize is that the coffee temperature was not hot, it was HOT. McDonald’s sold it at a temperature that caused major, horrible burns when spilled on humans. And they did it knowing that this was a problem, based on the hundreds of prior injuries.So it’s not that coffee can burn, but that McDonalds set the temperature at an unexpected and unreasonably high temperature that is a danger.

And now Mr. Frank wants to talk about zipper injuries to the schlong. So let’s talk. Here is how it works. If the manufacturer sells a dangerous product and the danger could be eliminated by design, then the manufacturer is responsible. After all, it is up to manufacturers who profit from selling products to take steps to avoid needlessly injuring consumers. I assume even the Manhattan Institute agrees with that basic principle, but maybe I am wrong.

So if a manufacturer uses razor sharp edges on his new, hip jeans, and Mr. Frank slices off his Johnson, he can sue. I imagine every guy would agree that such an injury would be horrifying…. But apart from the sensitive topics, the consumer–here Mr. Frank–must prove that the product was dangerously defective, usually by design. Mr. Frank knows this. He simply does not like that such cases exist.

Worse, he chides Saladoff and those of us who dare to call out corporations for misconduct by misstating what we must do to prove our cases. It’s not enough to show that 700 or thousands are injured while using a product. While that fact is interesting, and it may bear on what the corporation should have known, it does not prove the case. The 700 instances in McDonald’s coffee litigation was part of the factual showing, but if that’s all that was proved, the case would not have gone to the jury.

Two things gall me about the Manhattan Institute and their ilk. First, they invariably think they know better than juries. Ted Frank is a smart guy. I mean that genuinely and in a non-snarky fashion. He is accomplished, well-educated and highly credentialed. That said, he is not smarter than a jury. No single person is.

I say that as someone who has won and lost case. I’ve won very big verdicts, and I’ve lost in heartbreaking fashion. But at the end of the day, I am prepared to accept the judgment of the jury. That was the genius of our founders. It is what is enshrined in the Seventh Amendment. In my experience, those who try cases on both sides recognize the wisdom of the jury. This is true of my colleagues who represent corporations in the courtroom.

Along those lines, I would be surprised if Mr. Frank or anyone else at Point of Law has much jury trial experience. (Open invitation: Please let me know if I am wrong.) But even so, they are smarter than juries?

I said there were two things that galled me. The second is something I’ve seen many times in the decades in my law practice. A person is injured,  a consumer is wronged, a family is harmed. The injury may be a result of something as simple as a dangerous, inattentive driver causing a wreck, or a corporation wrongfully taking money to which it not entitled. Or it may be something as complicated as injury from toxic chemicals. The injured person often looks at me and says, “Well, I’m really injured, not like so many of those people you hear about….” I try to remain neutral and gracious and ultimately attribute it to an old adage: Comedy is when you slip on a banana peel; tragedy is when I slip on a banana peel.

So all this is the long answer to Ted Frank and why from time-to-time he gets push back from me on Twitter. Ted is obviously a true believer. But he is wrong to believe that he knows better than the founders who gave us the Seventh Amendment and more than a group of jurors who listen to the evidence and render decisions.

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*Was going to provide a link to Ted Frank’s Twitter feed, but apparently he blocked me. Sadz, as the kids say.

Sen. Santorum and the hyporcisy of damage caps

I’ve heard so much about the Santorum surge and how he is a man of principle–a values candidate, a different kind of politician.

Senator Santorum has been part of the echo chamber for caps on damages in medical injury lawsuits. He hits all the rhetoric about how caps are necessary because of frivolous lawsuits, rising health care costs, etc. According to Senator Santorum, Congress knows better than a jury the value of all patient injury cases, and no patient should ever recover more than $250,000 in non-economic harms when the defendant is a doctor or a hospital.

Yes, that includes the drunken doctor botching a surgery, sex abusers in the exam room, and hospitals that dump patients on the streets. Never more than $250,000 because Senator Santorum and Congress know better than a jury.

So imagine my surprise when a colleague in New York, Andy Barovick (@AndyBarovick), posted a link on Twitter to a news report about Senator Santorum’s wife’s malpractice claim against her chiropractor in which she sought $500,000 in non-economic harms. For those playing at home, that’s twice the amount of the cap Senator Santorum and Congress want to impose on the rest of us.

Here’s the corrected link to the news report (second video)Well worth watching.

Senator, On the off chance that you or your staff are reading this: Shame on you.

Update 7 Jan 2012: Law blogger, Eric Turkewitz, New York Personal Injury Law Blog, takes a different approach in defense of Senator Santorum here. While he makes a good point that Senator Santorum is not responsible for his wife’s choices, he misses the mark. Senator Santorum participated in the case, testifying as a damages witness. In the linked interview (above), Senator Santorum claims that the verdict included a substantial amount of economic damages that would not be subject to the cap. The news report debunks that excuse and lie. At bottom, Senator Santorum knows from personal experience that the proposed cap is wrong because one size justice does not fit all. We need to trust juries to do what is right and not put in Congress’s hands the ability to determine damages in all cases.

KBR gets slapped down by National Arbitration Forum over domain name dispute

I always enjoy a good smack down. Especially when it is well-deserved. Today, the National Arbitration Forum issued its decision in KBR, Inc. v. Jeffery L. Raizner, Claim Number FA1110001413439.  For those playing along at home, here is a pdf copy National Arbitration Forum Decision on kbrlitigation (2)

Backstory and full disclosure: Jeff Raizner is a partner in the Doyle Raizner firm. Jeff and his partner Mike Doyle are pursuing claims for sick veterans who claim to have been exposed to sodium dichromate at the Qarmat Ali Water Treatment Plant in Iraq in 2003. I am co-counsel for the Oregon vets in Bixby v. KBR, a case pending here in Portland. In connection with the litigation, Jeff registered an active web page, kbrlitigation.com.

The dispute: KBR rattled sabers and ultimately disputed the registration through NAF. KBR sought to take the domain name from Jeff, claiming that kbrlitigation.com infringed on its mark. The panel ultimately found that the site represented a nominative fair use of KBR’s mark. Putting it into English, this translates to roughly: “No, KBR. No. You do  not get to use the legal system to censor those who dare to criticize your misconduct. Go away and darken our doors no more.” (Note: This is a rough translation. I am, after all, not fluent in the odd language of intellectual property.)

I can’t help but wonder how much KBR spent on this little escapade. I am a simple in-the-trenches trial lawyer–the world of intellectual property is fairly alien to me. To use a technical legal term, this seemed like a no-brainer. Guess KBR has extra money to spend and wants to do whatever it can to stop trial lawyers from communicating with sick vets. Total failure. But worse, a public one.

So congrats to Jeff and Mike and their IP legal team. It’s a nice and well-deserved win.

Hot Coffee, frivolous lawsuits and HBO

HBO premiers Hot Coffee, The Movie tonight. The documentary is Oregon attorney Susan Saladoff’s labor of love. Susan put aside her law practice to will this film into being. She is a force of nature.

Susan makes no bones about her point of view. Like me, she is an Oregon consumer-side attorney who represents injured Oregonians in tough cases. I’ve tracked her cases over the years–we’re buddies–and she is the real deal. Susan grew weary of the fog machine’s distortion of the civil justice system. So she set out to make a film to publicize some of the misconceptions of our system.

By all accounts, she had no real experience as a filmmaker. I imagine that many thought her to be a modern-day Quixote riding off to do battle with the menacing windmills. As with any audacious plan, there are many ways to fail. But she is a force, and her improbable work wound up at Sundance with great recognition.

The well-known McDonald’s hot coffee case serves as a starting point for her film. While everyone knows the McDonald’s case, Susan gets the evidence and shows why the jury correctly decided it and how the pro-corporate fog-machine turned it into a cause by totally misrepresenting the facts. After watching some of the early cuts of the film-in-progress, I was awed by how she brought the evidence to life. Once you see this movie, you will never think about the McDonald’s hot coffee case the same way again.

The corporate fog machine’s favorite catch phrase, “frivolous lawsuit,” is at issue here. It’s a bastardized meme, arising from the rules of civil procedure. It used to mean that a case had no legal or factual basis and that the lawyer pursuing the matter did so in bad faith. Now it has come to mean any case in which a consumer seeks justice for wrongs heaped upon them.

Corporate interests took aim at the civil justice system because our civil justice system provided the only means through which consumers and members of the middle class could hold wrongdoers accountable. In doing so, the frivolous lawsuit meme has nullified the Seventh Amendment right to trial by jury. The film is part of a growing movement to restore the Seventh Amendment and consumers’ access to the civil justice system.

I am planning to watch it tonight and planning to record it as well. Susan is a jewel for her commitment and her achievement. All of us who work in the trenches of the civil justice system are indebted to her.

The Rakofsky Standard

I missed the initial Rakofsky story in the Washington Post because I was unplugged on vacation. Short version, via Twitter friends and the internet, is that a young attorney in New York represented a man accused of murder in a Washington D.C. criminal case. There were a few issues with the representation from the get-go. Mr. Rakofsky had apparently never tried a case before. And he was not admitted to practice in Washington D.C.

Things did not improve during trial. Mr. Rakofsky apparently did not understand the technical requirements for admission of scientific evidence. As a result, he could not get into evidence important information about the accused’s use of drugs. The case ended in a mistrial. Mr. Rakofsky mistakenly believed that was a good thing. It was not, as his client faced re-trial on the same very serious charges.

Going from trying no cases to handling a murder case is a bit like deciding after medical school that you are now qualified to perform coronary bypass surgery. As with performing surgery, trial of cases is a skill best learned slowly with tutelage. You start after training with small and easy matters–traffic court, for example, or misdemeanors, or small-scale property damage claims–and then you build up over time.

As licensed professionals, attorneys have certain responsibilities. Here is a simple rule: Attorneys may only accept employment on matters on which they are competent.

Mr. Rakofsky did not understand the standards for admission of scientific evidence–here toxicology. By his own account, he offered key toxicology evidence, which the trial judge rejected. Mr. Rakofsky apparently did not completely understand the rules of scientific evidence. To be fair, they are technical and sometimes hard to understand. But that’s why young attorneys need to handle small and simple cases before they can try complicated high-stakes matters.

Various law bloggers correctly picked up on Mr. Rakofsky’s shortcomings and, more important, what the story says about internet marketing of legal services. A nice collection of of blog posts can be found here at The Trial Warrior Blog.

A wiser young lawyer would have treated this whole sordid affair as a time to re-think. Sadly, Mr. Rakofsky has not yet come upon wisdom. Instead, an attorney acting on his behalf sued The Washington Post and various law bloggers, including bloggers Antonin Pribetic (The Trial Warrior Blog), Scott Greenfield (Simple Justice), Jamison Koehler (Koehler Law Blog), Mark W. Bennett (Defending People), Brian L. Tannebaum (My Law License), Carolyn Elefant (My Shingle), Eric L. Mayer, Above the Law, the American Bar Association, ABA Journal. Sorry to all omitted from the list. The complaint, in what has been labeled Rakofsky vs. The Internet*, is a triumph of ridiculously poor lawyering.
I have not counted, but I am told there are 74 defendants.

The complaint admits to some of the goofiness. It sets out the toxicology problem I noted above. It alleges irrelevant allegations. It implicitly posits a standard of practice that I think is fairly labeled as The Rakofsky standard.

There is a glaring problem from the outset. Scott Greenfield, Mark Bennett and Antonin Pribetic point out that young Rakofsky and his Rakofsky standard plaintiff’s counsel do not understand New York jurisdiction. They have sued out-of-state defendants and even the Canadian Trial Warrior in New York on a defamation claim. A problem:  New York long arm jurisdiction does not apply to defamation claims.That likely spells quick ending for all but the New York defendants.

The case has generated a lot of well-deserved ridicule on Twitter and from law blogs. As a casual observer, I can only laugh at the young man and his current counsel. They have taken a bad experience and compounded it by a factor of 10 by filing this case. While the Rakofsky standard is generous, I am betting that their future work on this case may violate it.

For my Twitter friends and the Rakofsky 74, I have volunteered to serve on the defense team. True, I have never handled the defense of a defamation claim in my 25 years of experience. As well, I am not admitted to practice in New York. But under the Rakofsky standard, I am totally competent to try their case.

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*Scott A. Greenfield a New York criminal defense lawyer who writes the pretty damned amazing Simple Justice law blog claims credit for having coined the phrase.

The other blogs listed above contain some of the best damned law writing out there. Even though I do not practice in Canada, I regularly read The Trial Warrior Blog. Ditto for Bennett at Defending People and Tannenbaum at My Law License work and Simple Justice. The latter three focus on criminal law but consistently hit deeper and more important issues in the justice system.

Our own worst enemies-lawyer ads, solicitation letters and internet marketing

Via Twitter, the law blog world and a few local lists, I’ve spent the better part of a week thinking about lawyer advertising. First thing: I am biased. I believe that the law is a profession.  As such, our clients come first, the justice system next, and we come third.

The U.S. Supreme Court long ago said that truthful lawyer advertising is subject to First Amendment protection. There is good reason for that rule. But–and this may seem like heresy–too many believe that the inquiry ends there. The rights secured by the First Amendment are critically important. But so are the 5th amendment rights of equal protection, the 6th amendment rights of the accused, the 7th amendment right to trial by jury, and the 14th amendment right to a fair trial.

The problem is not advertising, but the content and methods that lawyers use to reach prospective clients. A recent discussion with a nameless younger lawyer highlights the problem. He proudly sends accident solicitation letters to Oregon drivers who have been in motor vehicle collisions. He defends the process by saying that he provides important information to consumers, that insurance companies will take advantage of unsophisticated consumers, and that he is sticking it to the man.

The same young attorney trumpets on his website his aggressive and hands-on approach to handling motor vehicle collisions. The same young attorney recently posted on a local list a question about motor vehicle collisions that revealed a stunning lack of mastery of the subject matter area.

In discussions about lawyer advertising, the one thing that lawyer advertising advocates invariably mention is that they have to make a living, too. Sometimes they add that we who criticize are really just trying to squelch competition because we got ours.

Whatever success I’ve had in building a law practice has come through years of hard work. It took me nearly a decade to attain basic mastery in the practice of law. I am in my 25th year of practice now. My particular areas of practice are such that some years I earn a lot of money, and some years I do not. There are simply no guarantees of fabulous income.

So there are a few things nagging at me here. The problem is the advertising lawyer who resort to ads that make you and me wince do not recognize any obligation to the justice system.

Here are some not-very-far-fetched examples. How about screaming, boosted volume TV ads: CALL 1-800 LETS SUE!!! Or how about the snake-oil peddlers who sell internet marketing for lawyers and then spam the firm web page across the internet. Or there’s the unsolicited letter mailed or emailed to people who have been in motor vehicle accidents about how “I can help you and/or your loved ones in this time of need” for a mere third of the recovery.

Don’t get me wrong. I see fabulous web pages out there. I know attorneys who provide great information about their practices and their areas of law by use of advertising. I see some of my colleagues’ use of media and think that they are doing great work. But none of them are racing to the bottom through the bad ads.

Invariably, those who are running in the race to the bottom use one or all of the following excuses: 1. “Everyone is doing it.” 2. “It’s perfectly legal.” 3. “I’m just trying to make a living.” The problem is that each one of these “legal” marketing approaches cheapens the justice system.

Trial lawyers wonder why the public holds them in low regard. Part of the answer comes from the work of very powerful and wealthy interests dedicated to making sure that consumers surrender their rights to trial by jury. If you’ve heard the phrases, “frivolous lawsuit,” or “lawsuit lottery,” you’ve been exposed to their handiwork.

And we who dare to represent consumers know this. We know it in our bones. Still the advertisers are so intent on getting theirs that they simply do not care. Because that’s what it’s about at the bottom: Getting theirs. So the mass marketers run ads to collect cases that they will never try and in doing so give the Cato Institute and various anti-consumer forces great material for their campaigns to lock consumers from our courthouses.

For those of us dedicated to the proposition that this is a profession, every bad, screaming ad, every invasive solicitation letter, every SEO spam comment is another nick in a badly damaged system of justice. Even so, those of us who dare to demand higher standards will not go quietly into the night.

 

Constitutional challenge to health care reform-good luck with that

It took less than 24 hours for various states’ attorneys general to start the saber rattling. Apparently,  at least 10 states are lining up to litigate constitutional challenges to the historic passage of health care reform.

The talking points memo was apparently released early. My understanding from a casual review of the media stories is that various challengers claim that Congress lacks the power to require individuals to take actions to obtain health insurance.  The story goes that the Commerce Clause of the United States Constitution (“The Congress shall have power ****To regulate commerce with foreign nations, and among the several states, and with the Indian tribes”) does not allow Congress to require citizens to affirmatively act.

As I understand the argument, someone who doesn’t buy insurance isn’t affirmatively affecting interstate Congress. As a result, Congress has no power to regulate these non-actors  through federal legislation. Legal geeks know that the power to regulate interstate commerce is far-reaching. There are few limits on that power and very few acts that don’t otherwise impact interstate commerce.

So it’s an interesting theory. Novel, really. But wrong. People who don’t have insurance are only non-actors as long as they don’t seek medical care. But once they show up in an emergency room,  apply for benefits, or otherwise incur medical care costs, they are impacting interstate commerce. Thus, it’s facetious to claim that they are not affecting interstate commerce.

But there is a bigger technical problem here which each of these political attorneys general know. It’s such a big problem that it makes the mandate argument frivolous.  In order to pursue a claim, a party going seeking relief in court must be able to claim a real legal injury. The label in legal jargon is “standing.”  There is an awful lot of case law on standing out there. Much of it comes from environmental law with courts deciding who has suffered legal injury and who has standing.

As I understand it, the current version of the health care reform bill doesn’t mandate coverage until 2014. So no one has been injured yet.

Sorry cowboys, if you file the suit now, you won’t be able to establish legal injury or standing. And by the way, I’m sure all of you are very concerned about crowding the courts with frivolous lawsuits. And for all of the times you’ve denounced frivolous lawsuits, you would never, never, never file one yourselves.  Right?

The wisdom of requiring legal injury is illustrated by the opponents’ two-pronged approach to fighting health care reform.  At the same time that the GOP attorneys general are revving up the lawsuit teams, the Congressional republicans are yammering about a repeal.  They’re also laying plans to tie up the reconciliation bill in the Senate.  As it’s a long way until 2014, how can any court ruling made today be definitive?

This scenario potentially raises an interesting series of law-geek questions under the political-question prong of the abstention doctrine. I don’t have time to think about that on this busy day. And besides, you would have to be a serious law geek to be interested. And even if you were, you would probably want to read stuff by people much smarter than me.

In any event, if the courts will truly call this on the law and not take thinly-veiled political sides, this case gets flushed quickly at all levels. Of course the U.S. Supreme Court abandoned pretenses of deciding cases on legal principles. (See, e.g., Gore v. Bush)

I suppose the U.S. Supreme Court could change the law of standing to hear this premature challenge. That would lead to a radical new theory of standing. Radical changes to the standing doctrine would be a mistake because it would unleash a torrent of future litigation. You would allow all manner of excited people their day in court to litigate issues of what might happen four years from now. That would be a really bad idea.

I think the GOP AGs might want to think carefully about what they are doing. Or maybe they’re simply too desperate to reflect?