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Last week, while I was waiting for a court conference back in “antechambers” (that is, the part of the judge’s office that isn’t the judge’s actual “chambers”), I spotted this sign, strategically placed so that every lawyer who came through would see it:
They gave me permission to take a picture (always ask first — courts get sensitive about that), so long as I didn’t say where I took it. The judge’s clerk put it up one day after a string of calls from lawyers all trying to get the clerk to tell them how the judge would likely rule on an issue. In my 3L clerkship clinical, I lost track of the number of times lawyers tried to extract from me information about what a judge was thinking over the phone. I was sorely tempted to tell them all, “the judge is very upset with you, but I can’t say more,” then hang up, leaving them bewildered and terrified.
After the court conference where I took the picture, I went to a lawyer cocktail party–one of many this season–and chatted with judges and clerks. One clerk who was just finishing their second year said they could easily tell, when reviewing briefs, which lawyers had clerked and which lawyers had not. The lawyers who clerked were more likely to get to the point, citing only relevant cases (with appropriate parentheticals) and key parts in the record. The lawyers who never clerked rambled at length, citing either nothing at all or way too much, while trying to obscure or ignore difficult issues.
As I wrote not too long ago, an ounce of empathy for the reader is worth a pound of grammar and vocabulary. It’s easy for litigators to lose sight of how cases are actually decided, because we spend so much time being adversaries with no disinterested parties around to restore a sense of perspective. Every letter, every call, and every deposition feels like a pistol duel in the middle of the desert.
But litigation isn’t a duel, and it isn’t like a football game or a boxing match, you don’t really unambiguously win by scoring more touchdowns or knocking out your opponent. You don’t even really “win.” Rather, someone who has sworn an oath to be impartial is suppose to dispense justice from the bench or the jury box by independently coming to a conclusion about your client’s case. Spend your energy helping them do that, instead of trying to defeat the other side, with clear, concise writing and argument.
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The ABA Journal was kind enough to include me again on their Blawg 100. If you like what you read here, I’d be obliged if you’d click over and vote for Litigation and Trial in the “Tort/Consumer” category (voting closes December 19th). I’m going to lose again to Abnormal Use, run by Jim Dedman, and that’s quite all right. He’s one of the nicest folks I’ve met, and one of the few bloggers with the brains and the guts to invite guest posts from bloggers with whom he disagrees, like yours truly.
It’s finally here: Tincher v. Omega Flex, the Pennsylvania Supreme Court’s overhaul of strict liability. If you’re unfamiliar with the recent turbulence surrounding strict liability, check out this post of mine from July 2012, which will take you all the way from Webb v. Zern, 220 A.2d 853, 854 (1966) to Beard v. Johnson & Johnson, Inc., 41 A.3d 823 (Pa. 2012). Tincher is a foundational opinion, one that resets the landscape of strict liability and puts it on a more secure and coherent framework for the future.
The 137-page majority opinion written by Chief Justice Castille may become his magnum opus. It rises swiftly into the high politics of separation of powers (pp. 29–37), unearths the half-century-old foundations of strict liability in Pennsylvania (pp. 37–57), reviews the entirety of the precedent (pp. 57–74), explains the practical problems of the doctrine as used today (pp. 74–84), outlines the conceptual framework for strict liability (pp. 84–107), and charts the path forward (pp. 107–137).
It even quotes David Hume (p. 38) and includes a sly reference to Einstein’s dual theories of relativity (p. 110, criticizing the Third Restatement as having “general and special rules” for different types of products, rules that together fail to “state a general principle of liability consistent with the public policy that compensation is available for an injury caused by any type of defective product”).
The opinion is also unanimous, given that the whole court joined it, although Justice Saylor wrote and Justice Eakin joined a two-page “concurring and dissenting” opinion. Justice Saylor says that, if “left to [his] own devices,” he would adopt the product liability segment of the Third Restatement of Torts — an approach the majority opinion he joined eviscerated (pp. 33-37, 107-117), concluding it was “unmoored from guidance upon the broader legal issue,” making it at best “a superficially enticing option” that “risk[s] elevating the lull of simplicity to doctrine.” Slip op. at 116 (quoting Scampone). Frankly, I don’t see the incongruous ‘concurring and dissenting’ opinion having much impact going forward.
The majority opinion admits that it is part of an “incremental approach,” and that much lies ahead in “the development of strict liability law in Pennsylvania.” Slip op., p. 116. So let’s roll up our sleeves and figure out how to best apply the case going forward.
Predictably, the defense bar, the big corporate manufacturers, and the insurance companies have started claiming that Tincher actually adopted the Third Restatement by stealth, that this stunning reaffirmation of the purpose of strict liability and of the role of the jury as ultimate fact-finder is somehow favorable for them. See, e.g., Ballard Spahr, Morgan Lewis, and, of course, Drug and Device Law. We’ll come back to them.
Here are the five key points I’ve drawn from the opinion: Continue reading
A few months ago, in a wrongful death case I have against one of the biggest companies in America, the company’s lawyer asked: will you agree to a mediation?
Our firm founder, Jim Beasley, Sr., had a simple method to mediation: he told the representative to call and figure out what their highest number was. Then he told them if it was settled or not and left the mediation.
I haven’t tried that one yet, but maybe I should.
I’m not a fan of mediation. Mediation is useful where the parties have some shared interest in mutually resolving their dispute but disagree on the terms of the deal, like with, say, unions and employers. The workers want to work and the company wants to keep on running. As the jargon of negotiation theory puts it, for both of them, their ‘best alternative to a negotiated agreement’ (“BATNA”) would likely leave them both worse off than reaching almost any deal. In the jargon of game theory, their negotiation is a “non zero-sum game.” If they reach an agreement, they both do better than if they didn’t.
But that’s not the situation in catastrophic injury litigation. My client’s “best alternative” to settlement is a jury verdict that holds the defendant accountable for the full extent of my client’s injuries. The defendant / insurer’s “best alternative” is a jury verdict absolving them of responsibility. My client and the defendant don’t have any shared interests. Rather, they each have the similar interest in ending the litigation and avoiding the risk of losing, but it isn’t a “shared” interest. Civil litigation is a “zero-sum game.”
Thus, when it comes to serious injury lawsuits against a single defendant — where the only issue is the amount the defendant is willing to pay to settle the case — it’s hard to articulate what, exactly, the mediator can accomplish. Assuming the clients and lawyers aren’t irrational, there’s little for a mediator to work with, there’s just a number on one side and a number on the other. I don’t need a mediator for that. I know the numbers I’ve recommended to my client. I know what my client has told me. If a defendant actually wants to settle something, they know how to find me to convey an offer to my client.
Nearly a year ago, I praised an objection Judge Alex Kozinski filed — as a consumer, not a judge — to a proposed class action settlement that he was a part of, and so I was dismayed to see a recent article noting Judge Kozinski’s complaint that “There’s a tendency for lawyers to buy themselves off” in class actions.
He’s missing the forest for the trees: whatever the problems of class actions, the “tendency” we need to worry about isn’t that plaintiffs’ lawyers might be able to settle these cases too soon, but that the cases aren’t filed at all because they’re too hard to win, even in the face of blatantly illegal conduct.
If you’re from the Philadelphia area, you know that the tallest building in the City is the Comcast Center, begun in 2005 and completed in 2008 at a cost of $540 million. What you may not know is that Comcast’s customers paid for the whole thing (and more) by way of a glaring antitrust violation.
Between 1998 and 2002, Comcast’s share of the “Philadelphia designated marketing area” — i.e., the surrounding counties of Pennsylvania, New Jersey, and Delaware* — grew from 23.9 percent to a whopping 77.8 percent. (See this brief, page 2.) In four years, Comcast went from controlling less than a quarter of the market to controlling over three-quarters of it. By 2007, Comcast still held 69.5 percent of the market.
Comcast wasn’t competing on price, and it didn’t grow that way by dramatically improving its services (I can tell you that from my personal experience!). Instead, it was buying entire cable companies within the Philadelphia area and swapping customers with other cable systems, like Time Warner. As a statistician and econometrician later established by comparing prices in the Philadelphia area to prices in comparable areas, Comcast’s anticompetitive behavior cost Philadelphia consumers a whopping $875,576,662 in inflated prices.
In December 2003, five customers and eight law firms filed an antitrust complaint against Comcast. The antitrust damages for any one customer aren’t much — probably under $1,000 for most — so the case was filed as a class action on behalf of all the customers in the area. Thus, before the case could reach the issue of whether or not Comcast actually violated antitrust laws, the case has to decide whether and how customers could bring their case as a class action.
Comcast unsurprisingly fought a war of attrition, so that the District Court didn’t get to class certification until May 3, 2007. Thereafter, the Third Circuit decided In re Hydrogen Peroxide Antitrust Litigation, 552 F.3d 305 (3d Cir. 2008), prompting the District Court to go back around to re-certify the class again on January 7, 2010. Then the case was appealed, and the Third Circuit upheld the class certification on August 23, 2011 in Behrend v. Comcast Corp., 655 F.3d 182 (3d Cir. 2011). The Supreme Court granted certiorari, and issued its opinion on March 27, 2013.
That is, it took almost ten years to sort out whether 2 million current and former Comcast subscribers apparently bilked out of nearly a billion dollars could bring their claims as a class action. It reminds me of a case I argued earlier this year in front of the Third Circuit involving investors defrauded by a gigantic bank. The bank’s lawyer was trying to explain to the panel of judges why the bank had waited nearly two years after litigation was filed to bother arguing that it felt my client’s case had been filed in the wrong court, and in the course of that argument he claimed there was a difference between “calendar time” and “litigation time.” In “litigation time,” he argued, a big company could let issues sit unresolved for months, even years, without consequence. (Thankfully, I won, and the Third Circuit held the bank had engaged in an “unsavory tactical maneuver” by waiting so long.) Continue reading
If I told you that, every week, between 4,200 and 8,400 people were poisoned by contaminated food, would you say restaurants needed special protection from negligence lawsuits because fear of such lawsuits would force them to clean too much? “Defensive cleaning,” so to speak.
If I told you that, every week, between 4,200 and 8,400 people were killed in fires caused by bad electrical wiring, would you say electricians needed special protection from negligence lawsuits because fear of such lawsuits would force them to insulate too much? Call it, “defensive wiring.”
Of course you wouldn’t. Thankfully, I made those numbers up: combined, foodborne illnesses and home electrical fires kill about 3,500 people per year. That’s one-hundredth as many people as the 210,000 and 440,000 patients killed each year by medical malpractice. But the “defensive medicine” myth — the claim that, when doctors are worried about getting sued, they start running unnecessary tests and doing unnecessary procedures, thereby increasing the health care costs for everyone — just won’t go away as a justification for “tort reform.”
The whole notion of “defensive medicine” has always been silly: doctors are held responsible for malpractice when they don’t do something required by the standard in the field that would have helped the patient. Doctors can’t be held accountable for not doing something that wouldn’t have made a difference. The notion has also always been misleading, too: as the Congressional Budget Office said a decade ago, “some so-called defensive medicine may be motivated less by liability concerns than by the income it generates for physicians…,” a point repeatedly echoed by others even in the medical field like Atul Gawande.
Yet, a quick search of case law reveals the myth’s pervasive, ongoing effect on the legal system. There are the obnoxious defense “experts” deliberately making speeches in front of juries (Pin v. Kramer, 41 A. 3d 657, Conn. 2012), legislatures enacting special laws to hinder malpractice victims (Jackson v. HCA Health Services, 383 SW 3d 497, Tenn. 2012), and federal judges who should know better than accepting the myth at face value when deciding federal tort law (Gipson v. US, 631 F. 3d 448, 7th Cir. 2011). Continue reading
A lawyer has two jobs. First, the lawyer thinks about how the law might work, good or bad, in their client’s situation, and then tells their client. Second, the lawyer brings others around to ideas about the law that are good for their client.
Outside my office, there’s a poster of the brilliant xkcd comic “Up Goer Five,” in which the various complicated parts of the Saturn V Moon Rocket are “explained using only the ten hundred words people use the most often.” As the comic explains, the “US Space Team’s Up Goer Five” is “the only flying space car that has taken anyone to another world.”
It is an amusing joke, juxtaposing one of the greatest engineering feats of humanity with a kindergarten-level vocabulary. It also carries an important reminder about the limitations of language: rightly or wrongly, words have different meanings for different people. (“Inconceivable!”) The first paragraph of this post won’t win any awards, but the vast majority of the population can read it and understand it: it is written at a 7th grade level with every word being one of the “ten hundred” most often used words except for law, lawyer, and client. You can check it with the Up-Goer Five Text Editor and the Hemingway Editor — in fact, you might want to check all of your writing with both of those tools.
Lawyers are routinely attacked for their use of language: just last week, the Chronicle of Higher Education noted sardonically, “Only two classes of people, it seems, stick up for the adverb: young adults and members of the bar.” (I’ll gladly stand up for adverbs: a lawyer should not needlessly omit them.) Yet, few professions agonize so thoroughly over language as the law. Back in August, the American Bar Association’s journal for young lawyers had an issue devoted to writing. It’s worth a review by all lawyers, including those who fancy themselves great writers. If you’re going to read only one article, make it Michael Bess’ pithy “How To Write Better.”
Similarly, although advice about writing never goes out of style — writers like to write about writing, no surprise there — there seems to be a bit more chatter devoted to the subject thanks to the recent promotion of Steven Pinker’s The Sense of Style. As The New York Times’ review summarized:
The cause of most bad writing, Pinker thinks, is not laziness or sloppiness or overexposure to the Internet and video games, but what he calls the curse of knowledge: the writer’s inability to put himself in the reader’s shoes or to imagine that the reader might not know all that the writer knows — the jargon, the shorthand, the slang, the received wisdom.
Yes, indeed. As Judge Richard Posner began his contribution to the aforementioned ABA article, “Successful communication requires the communicator to understand how much the person or persons to whom he is communicating understands.”
What I try to remember as a legal writer is that an ounce of empathy for the reader is worth a pound of grammar and vocabulary. Continue reading
Back in June, I wrote a short post on the fatal accident involving a Walmart truck plowing through traffic on the New Jersey Turnpike. It hit a charter bus carrying comedian Tracy Morgan and several of his friends and fellow comedians, including James McNair, who died in the crash. As I said then, “Walmart has responded with typical corporate doublespeak, promising to do ‘the right thing,’ at least to the extent the law forces them to do so.” Consider me jaded after enough years in this job: when a big corporation hurts someone and says they’ll do “the right thing,” they typically mean they’ll drag the injured person through years of litigation before paying as little as they can to resolve the claim.
Unsurprisingly, Morgan sued. Earlier this week, Walmart, represented by LeClairRyan, filed its Answer to Morgan’s Complaint, kicking off a firestorm with its “Eighth Affirmative Defense,” which alleged that Morgan’s and his friends’ injuries “were caused, in whole or in part, by plaintiffs’ failure to properly wear an appropriate available seatbelt restraint device.” Even Mashable, which is not known for its reporting on truck accident lawsuits, jumped into the fray. The Hollywood Reporter, Esq., has some more details about the Answer and the status of the case as a whole.
As Morgan said in a statement, “I can’t believe Walmart is blaming me for an accident that they caused.” Walmart responded, in turn, “As part of the ordinary course of legal proceedings, Walmart filed an initial response yesterday to the lawsuit that included facts and defenses that may impact the case moving forward.”
In one sense, Walmart is right: its Answer is indeed the “ordinary course of legal proceedings” for every major corporation or insurance company that finds itself defending an injury lawsuit. But that just raises a bigger question: why do we allow for-profit companies to reflexively claim they’re unaccountable when they hurt people? When someone abdicates responsibility because they want to save money, I don’t consider that “ordinary,” I consider it blameworthy, deplorable, disgraceful, indefensible, and unacceptable. Continue reading
When it comes to lawyer “war stories,” I agree with Philip Thomas: “The only stories about a lawyer that other lawyers want to hear are funny stories.” That said, cautionary tales have an important place in the law school curriculum: learning to “think like a lawyer” includes understanding how and why lawyers screw up. How else are law students supposed to learn just how dire the consequences can be?
Via the ABA Journal and the WSJ Law Blog, I saw a new law review article called, “This is Your Brain on Law School: The Impact of Fear-Based Narratives on Law Students.” Beginning and ending with Aristotle quotes,* lawprof Abigail Patthoff tackles the question of how law professors should use cautionary tales to ensure students take home the right messages. By way of social science research into the “extended parallel process model,” Patthoff concludes, “the listeners who are most fearful following a fear appeal are also the listeners who are least likely to benefit from the fear appeal.” Thus, given law students’ pre-existing high anxiety levels, law professors should use fear-inducing cautionary tales “sparingly, carefully, and never without an accompanying efficacy message.”
Patthoff argues law professors should give fewer cautionary tales because “the combined weight of a semester’s worth of threats may, after a while, cause students’ perceptions of the threats to outweigh their perceptions of their ability to avoid those threats,” and that “law professors should attempt to soften both the perceived severity and perceived susceptibility aspect of cautionary tales” by using neutral, impersonal language. The point, she says, is to ensure law students won’t be so anxious and overwhelmed that they either develop an emotional coping mechanism (e.g., “this won’t happen to me”) or ignore the message completely.
Part of her argument is indisputable. Patthoff says that, when professors give a cautionary tale from the law, they shouldn’t just scare law students, but should “articulate the recommended response — even if that response seems obvious.” Indeed, a “cautionary tale” is of little use if it is given without any clear guidance to the student to help them avoid making the same mistake.
But there’s a problem: given the dearth of practical experience among law professors (a problem that is getting worse over time), what advice do they have? Patthoff gives several exemplar “cautionary tales,” but they all involve rudimentary issues that are easily addressed, like, as she notes, “consult the local rules and the Bluebook before filing a brief.” These are not the sort of serious problems that can cause true mischief in lawyer’s careers. A real cautionary tale would look more like this precedential Third Circuit opinion from last week, in which the court reinstated a fraud case against BASF and Cahill Gordon & Reindel alleging they “conspired to prevent thousands of asbestos-injury victims from obtaining fair tort recoveries for their injuries” by destroying and concealing evidence. Continue reading
I represent clients in the consolidated Actos litigation, and so I’m well-versed with the science linking the drug’s use to bladder cancer. As the federal court overseeing the litigation held in a Daubert order, there’s ample scientific evidence demonstrating that even just one year of Actos use can increase the risk of bladder cancer. So, the headline at MedPage on August 29, 2014 was quite a surprise: “No Actos Cancer Link in Long Term Data.” I assumed that the headline reflected some new scientific study showing the absence of a link to bladder cancer.
Then I read the actual article:
A 10-year analysis of patients with type 2 diabetes treated with pioglitazone (Actos) found no statistically significant increased risk of bladder cancer, either with any exposure or for long duration of use, the drug’s manufacturer said.
Emphasis mine. As the article continues:
No association with bladder cancer was seen in the 10-year data with higher cumulative doses of the drug or with longer time since initiation of therapy, Takeda [the company that makes Actos] said.
Other details were not released. Takeda promised that the full results would be submitted for publication and shared with regulatory authorities in the U.S., Europe, and Japan.
The refusal to release “other details” kind of says it all, doesn’t it? You can say smoking doesn’t cause lung cancer if you don’t bother to release the “other details” explaining why you think so. The timing is just a bit suspicious as well: they released that statement on the same day the court upheld a multi-billion-dollar punitive damages judgment against them, a judgment based on part on Takeda hiding a link between Actos and bladder cancer.
The essence of science, as Richard Feynman explained decades ago, is whether our guesses about how the world works agree with our observations about how the world actually works. To tell whether a particular hypothesis lines up with the real world, you need to see the details of both the guess and the observation — which, I suppose, explains why the manufacturer of Actos doesn’t want to show us those details.
The old saying, “There are three kinds of lies: lies, damned lies, and statistics,” applies nowhere so forcefully as when a for-profit company is describing the safety of its own product. Unfortunately, the rich, complex world of epidemiology gives companies more than enough mathematical and scientific tools to pretend that their products are safe. The math behind “pharmacovigilance” (i.e., the epidemiological monitoring of drugs to look for problems) is insanely complicated, so that seemingly small changes — a “misreported” case here or there, or perhaps a slight tweak to the Bayesian filter used — can completely change the outcome.
And that’s why I’m so disappointed with MedPage Today. A statement by a for-profit company about its product without any supporting analysis or data to back it up isn’t “science” or “medical news,” it’s just marketing.
This week marks the 20th anniversary of the verdict in the Stella Liebeck v. McDonald’s hot coffee case. Abnormal Use has for years been one of the few places where people could find genuine information about the case itself, rather than just commentary about the case, the great majority of which is based upon misunderstood or mischaracterized facts. They’ve put up with a series of posts reflecting on the case’s enduring legacy.
They kindly let me step up on their soapbox for a day to give a plaintiff’s perspective. Here’s how my post begins:
Medical malpractice has killed more Americans in the past week than Ebola has killed worldwide since the first recorded outbreak in 1976. Two months ago, a Wal-Mart truck driver who had been awake for 25 hours, as permitted by company policy, plowed into a van full of comedians. But when it comes to tort law, those issues stand in the long shadow of a 49-cent cup of coffee served a week afterWayne’s World hit theaters.
It shouldn’t be that way, but it is, and so there is use in continued legal anthropology of the Liebeck v. McDonald’s case. That said, I’m not going to make another argument for the damage that misunderstandings about the Stella Liebeck case have done to the civil justice system. Go watch “Hot Coffee“ or read Priceonomics. Instead, I’m going to review the case as if it was just another personal injury case.
Read the rest at: “What If Liebeck v. McDonald’s Was Just Another Case?“