Tort reformer Ted Frank and I have had our disagreements over the years. (See here and here.) In recent years, he has focused his work on filing objections to class action settlements through the Center for Class Action Fairness. Some of his work has focused on getting a better deal for class action members who, he alleged, weren’t receiving fair portions of the proposed settlement, but the bulk of his objections — at least to my knowledge — have focused on reducing the attorney’s fees claimed by the class counsel.


As Alison Frankel reported yesterday, it seems that, in the course of his contingent-fee work on behalf of people objecting to class action settlements, Frank has found himself in a situation he himself describes as “lurid, complex and Grishamesque.” The situation seems to have arisen from his personal goals as a lawyer being different from one of his client’s goals, and from his fee-splitting relationship with another firm, the very same issues he so frequently raises in his objections.


It would seem like a perfect opportunity for schadenfreude, but, in fact, all I can feel for him is sympathy — and his misfortune in the In Re: Capital One Telephone Consumer Protection Act Litigation presents a tremendous opportunity for tort reformers, politicians, the press, and the public to see just how difficult class actions, mass tort, and other large-scale litigation can be. In that case, Frank filed an appeal on behalf of a class member objecting to the fee claimed by Lieff Cabraser, and then everything went south.  Continue Reading Ted Frank And The Real Risk Of Class Actions

It is a truism among trial lawyers that compelling stories win cases.


Jim Perdue, a trial lawyer in Texas, wrote a trial advocacy book literally titled Winning with Stories: Using the Narrative to Persuade in Trials, Speeches & Lectures. I’ve written several times before about studying the methods of the great storytellers of our times and of classical times and how juries respond to the emotions conveyed by counsel.  The cynics might say we are doing nothing more than scheming to manipulate the emotions of jurors — like when a judge wrongly let defense lawyers drive an inadequate security / wrongful death case completely off the rails by discussing the Reptile book — but trial advocacy isn’t about misrepresenting yourself to jurors. It’s about choosing the most persuasive form of advocacy among many honest options.


Cases don’t come to us with summaries attached telling us which points to emphasize and how to construct the presentation of evidence at trial.  Perhaps worse, the structure of trial, particularly the way in which each witness testifies fully before the next witness is called and the requirement that a foundation be laid for all testimony, is almost designed to prevent the jury from understanding what really happened.  I’m fond of telling young lawyers and clients to recall the last great book, play, or movie they read or saw — perhaps Inception or Hamlet or Harry Potter — and then imagine if they had to figure out what happened based on nothing more than long, convoluted question and answer sessions with each of the participants.  Would you have any chance of understanding what happened if you sat as a juror on the the posthumous trial of Hamlet?


We all know a trial lawyer needs to turn that jumble of evidence into a story, but what story should that be?


To that end, let’s turn to John Reed, a rather unusual writer who, for example, successfully constructed a “new” Shakespeare play by mashing up lines from Hamlet, King Lear, Macbeth, Othello, Romeo & Juliet and Henry V into a cohesive narrative. In the latest Rumpus he rails against the commercialization of fictional narrative, with a couple interesting observations for those of us outside of literature:


To this day, sin, suffering, redemption is the primary Western story. In movies, in television, in cross-cultural memoirs (which must accept the Western story to be culturally significant) and in fiction. Harvey Pekar, in his recent collection, Huntington, West Virginia on the Fly puts a percentage to equation: 99% of what we encounter is establishment narrative.

In West Virginia and the body of his work, Pekar understands that a story can be told of any of us, without forced structures or prerequisites—because every man, every woman’s life, is an allegory of our times, and in the broader sense, existence itself. …

The distinction—from life or from edict—happens to be the customary distinction of the literary v. the non-literary work. The logic:

—In literary works, the structure is derived from the content.

—In non-literary works, the content is derived from the structure.

Max Brand (Frederick Schiller Faust), a prolific pulp western writer of the 1920s and 30s, maintained that there were two types of stories: coming home, or leaving home. The assertion neatly correlates to the classical definition of comedy and tragedy, as well as a content-first v. structure-first division of the arts. The coming home story (usually comedic or “feel good”): the cowboy accepts and/or is accepted by society. The leaving home story (usually tragic or “dark”): the cowboy rejects and/or is rejected by society. Structure-first stories, i.e. coming home, tend to be about assimilation, while content-first stories, i.e. leaving home, tend toward dissent.


Deep stuff, perhaps a bit too deep for me — “Academia, outmoded and provincial, peddles geniuses and nihilists, ignores contemporary writers of far more immediacy, relevancy, talent and accomplishment” — considering that I cited Harry Potter earlier in this post, but there’s a lot we can learn from examining the way in which narratives are formed, particularly this distinction between whether structure drives content or vice versa, and the idea that all stories fall into a couple predictable forms.


One obvious analogy to draw is that the “evidence” is the “content” and so it should drive the “structure” of the presentation at trial — but the evidence is a jumbled mess of known facts, known unknowns, and unknown unknowns. The lawyer has to create some semblance of structure to even begin arranging the evidence for presentation at trial. The core narrative of sin, suffering, and redemption fits much of our work, with the negligence as the sin, the damages as the suffering, and the plaintiff’s lawyer asking the jury to redeem the tragic situation, but it doesn’t get you very far into developing a real narrative for your case.


And then there’s a potentially bigger problem.

Continue Reading Trial Lawyers As Storytellers, The Narratives Versus The Numbers

If you’re a reader of this blog, you’re undoubtedly familiar with Bell Atlantic v. Twombly and Ashcroft v. Iqbal, a pair of Supreme Court cases which altered the pleading standards applicable to civil cases filed in federal court.

Defense lawyers have jumped all over those two opinions in an attempt to dismiss lawsuits — particularly complex commercial class actions, like antitrust cases — before any discovery can be taken. Every lawsuit, they claim, no matter how detailed and compelling, is "implausible" under Twombly and Iqbal. I taught CLEs to help other trial lawyers defeat those arguments.

Back when the Iqbal opinion first came out, I wasn’t impressed. Sure, the Supreme Court added the word "plausible" to the Rule 8 standard, but frankly I didn’t think Twombly or Iqbal would make Rule 8 and Rule 12(b)(6) any more dispositive than they already were. Before either of those cases were decided, if a judge read a plaintiff’s complaint and thought that the claim was "implausible," they would dismiss it under Fed.R.Civ.P. 12(b)(6) for failing to state a claim upon which relief could be granted. Twombly and Iqbal simply codified a practice that was already widespread in the federal judiciary.

That’s not to say I think the opinions do nothing — by way of their vague, ambiguous and amorphous language, they confuse a lot of judges into arbitrarily deeming certain allegations to be "conclusions" instead of "facts" (and even Judge Posner can’t figure out the "plausibility v. probability" distinction) — but the underlying legal principles are the same.

I said as much at the time. Time has proven me correct.

Almost exactly a year ago I posted Second Circuit Revives Digital Music Price-Fixing Case, Takes A Bite Out Of Twombly, noting a Second Circuit opinion which held:

Although the Twombly court acknowledged that for purposes of summary judgment a plaintiff must present evidence that tends to exclude the possibility of independent action, 550 U.S. at 554, and that the district court below had held that plaintiffs must allege additional facts that tended to exclude independent self-interested conduct, id. at 552, it specifically held that, to survive a motion to dismiss, plaintiffs need only “enough factual matter (taken as true) to suggest that an agreement was made,” id. at 556; see also 2 Areeda & Hovenkamp § 307d1 (3d ed. 2007) (“[T]he Supreme Court did not hold that the same standard applies to a complaint and a discovery record . . . . The ‘plausibly suggesting’ threshold for a conspiracy complaint remains considerably less than the ‘tends to rule out the possibility’ standard for summary judgment.”).

Defendants next argue that Twombly requires that a plaintiff identify the specific time, place, or person related to each conspiracy allegation. This is also incorrect. The Twombly court noted, in dicta, that had the claim of agreement in that case not rested on the parallel conduct described in the complaint, “we doubt that the . . . references to an agreement among the [Baby Bells] would have given the notice required by Rule 8 . . [because] the pleadings mentioned no specific time, place, or person involved in the alleged conspiracies.” 550 at 565 n.10. In this case, as in Twombly, the claim of agreement rests on the parallel conduct described in the complaint. Therefore, plaintiffs were not required to mention a specific time, place or person involved in each conspiracy allegation. 

The Second Circuit’s opinion was significant. The case was right up Twombly‘s alley — an allegation of an illegal agreement in violation of antitrust laws, the details of which were still known only to the defendants — and so the Second Circuit’s reinstatement of the case dealt a powerful blow to the defense lawyers who had been arguing that Twombly and Iqbal had slammed the courthouse shut on plaintiffs who couldn’t prove their whole case before even filing it.

The record companies in that case weren’t inclined to throw in the towel, so they filed a petition for certiorari to the Supreme Court arguing, as you would imagine, that the Second Circuit failed to follow Twombly and Iqbal.

A funny thing happened yesterday. Tucked in among pages and pages of summary orders at the Supreme Court was this:

The petition for a writ of certiorari is denied. The Chief Justice and Justice Sotomayor took no part in the consideration or decision of this petition.

The Second Circuit’s opinion thus stands firm. Even after Twombly and Iqbal, all a plaintiff needs to allege, even in a complex antitrust case, is “enough factual matter (taken as true) to suggest" the elements of the claim.

That’s the same as the Third Circuit recently held in In re Ins. Brokerage Antitrust Litig., 618 F.3d 300, 314 (3d Cir. 2010) and later applied to all cases, including complex cases, in W. Penn Allegheny Health Sys. v. UPMC, No. 09-4468, (3d Cir. November 29, 2010)(precedential).

In short, the Circuit Courts have taken a hard look at Twombly and Iqbal and have rejected the numerous attempts by big corporations to slam the courthouse doors shut on meritorious cases, and the Supreme Court hasn’t stopped those Courts from setting the record straight.

In celebration, below the fold are some plaintiff-friendly precedential opinions over the last year in various Courts of Appeals (in addition to the Second Circuit and Third Circuit opinions above). 

Continue Reading Another Twombly/Iqbal Victory for Plaintiffs: SCOTUS Denies Certiorari for Digital Music Price-Fixing Case

[UPDATELaw Librarian Blog and 3 Geeks and a Law Blog both have detailed coverage of the case and what it means for the publishing industry, and Jonathan Turley has background on the Campbell punitive damages case.]

[UPDATE II: As The Legal Intelligencer  reported, and as I predicted below, Judge Fullam cut the punitive damages verdict, holding “the constitutional limit in this case should be set at $110,000 for each plaintiff. When combined with the compensatory damages, this would result in a recovery of $200,000 for each plaintiff.” That’s roughly a 1:1 ratio of compensatory:punitive damages, which is low under recent precedent, even in non-personal injury cases.]

One of the big secrets about the legal world is that a huge portion of the work is performed by the newly-minted lawyers with little or no experience in anything, much less experience in the fields they are called upon to practice.

The Supreme Court (along with most federal and state courts) hires almost exclusively lawyers who have just graduated from law school. Expensive “BigLaw” corporate law firms churn through new graduates by the thousands, inflicting them on clients at $150–250 an hour to flail about through legal database searches and to endlessly review clients’ e-mails and documents to determine if they are arguably privileged.

Then there is the legal publishing industry. When all of these new lawyers are looking for answers in fields they barely understand, much less can practice in, they turn to textbooks, treatises, hornbooks, and guides that are supposed to give them all the answers or, at least, point them in the right direction. (Everyone expects hornbooks to be like a map, but, really, they’re meant more to be a compass.) Some of these guides are fantastic, written by seasoned professionals who explain, in simple but not too simple terms, what the relevant issues are and where a practitioner should go to answer further questions.

And then there is what happened to the Pennsylvania Criminal Procedure: Law, Commentary and Forms written by David Rudovsky (whose civil rights practice I’ve discussed here) of the University of Pennsylvania Law School and Leonard Sosnov of Widener Law School and published by West, one of the more prominent legal publishers. As The Legal Intelligencer recounted:

[T]he professors claimed that, because of a pay dispute, they stopped working on the project and therefore did none of the work on the December 2008 supplement, or “pocket part,” to their book…

West’s response, they claimed, was to publish a “sham” update that still carried the professors’ names, but included almost no case updates. …

But the supplement published in December 2008, Bazelon said, added just three new cases and failed to take note of any of the cases that had been reversed in the past year by the state Supreme Court.

The evidence, Bazelon said, showed that West assigned the task of writing an update to a woman who had graduated from law school one year before and then gave her just one week to do the work and never reviewed it before publication.

The law professors were understandably unhappy with their names being attached to a worthless supplement which not only failed to provide any new information, but which misled readers into thinking that the information contained in the textbook was more current than it actually was.

So they sued, as I previously described in How To Write Your Brief So That The Judge Will Hate You. As Rebecca Tushnet noted, the professors’ creative false advertising claims were dismissed before trial, leaving just the defamation.

Last week, a jury awarded them each $90,000 in compensatory damages and $2.5 million in punitive damages, for a total of $5.18 million. Not bad for a book that only made $17,000 in revenue.

Two issues jump out at me.

First, their punitive damages award has a math problem. As I noted in The Third Circuit’s 1:1 Punitive Damages Ruling: The Lingering Complications of State Farm v. Campbell, the Supreme Court has already indicated that it expects a “single-digit” ratio between compensatory damages and punitive damages in cases that do not involve physical injury, and the highest that the Third Circuit has approved to my knowledge is a one-to-seven ratio (in the CGB Occupational Therapy v. RAJ Health Services case cited in my post), which would limit the professors to $630,000 in punitive damages each.

Second, the trial court found that the publication was defamation per se because it “ascribes to another conduct or a condition that would adversely affect his fitness for the proper conduct of his lawful business.” Franklin Prescriptions, Inc. v. New York Times Co., 424 F.3d 336, 343 (3d Cir. Pa. 2005); see also Restatement (Second) of Torts § 573 (1977). It’s an important finding, since Plaintiffs then need only prove “general damages,” i.e., proof that one’s reputation was actually affected by the slander, or that he suffered personal humiliation, or both. Although I frankly agree with the law professors here (as you would expect, considering that I represent plaintiffs defamation cases), there is a good chance that the Third Circuit might not.

Nonetheless, the case is an important reminder to the legal publishing industry: if you are going to make her books the way you make sausage, just make sure the nominal authors of the books are on board with it.

The American Tort Reform Association’s Annual Report on “Judicial Hellholes” is out again.

Whoops, I mixed up my link — that’s a link to reasonable commentary by the Center for Justice & Democracy. The actual misleading, faux-scientific report is here. My take is similar to The Pop Tort’s ode to the judicial hellholes list:

Your courageous “Judicial Hellholes” report at long last draws attention to the many injustices corporations have to face day in and day out.  You have finally given a voice to the “mom and pop” tobacco companies, gasoline conglomerates, and insurance providers.

Philadelphia apparently takes #1 on the list primarily because it is one of the few major urban court systems without a substantial backlog in the disposition of cases, which the ATRA characterizes as “plac[ing] expediency over fairness.”

Justice delayed is justice denied, and if the ATRA stands for anything, it’s denying justice. That’s why the ATRA is so mad at Judge Sandra Mazer Moss and President Judge Pamela Pryor Dembe, mad enough to mention them by name: they keep the people’s courts moving forward in a timely, efficient manner.

According to the ATRA, conducting court in a just, speedy and efficient manner is not only wrong, but so wrong that it makes you the worst court system in the country. Better to let cases fester for years so that the plaintiffs’ continuing damages, and the costs and time of the plaintiffs’ lawyers on the case, make it impossible to continue, forcing them to take a smaller settlement.

It’s not worth addressing each of the remaining scattershot complaints. Here’s a sample: the ATRA claims “Verdicts over $1 million are up. The Pennsylvania courts report that the number of jury verdicts and judicial rulings of more than $1 million tripled in the Philadelphia Court of Common Pleas in the first half of 2010 compared to the same period in 2009.”

Read the link provided by the ATRA.

I dare you. Double-dog dare you.

It is indeed a report from the Pennsylvania Supreme Court, and it begins:

Chief Justice of Pennsylvania Ronald D. Castille today announced the release of state court system data on medical malpractice case filings and verdicts for 2009 that show a further decline in the number of lawsuits filed against health care providers statewide for a fifth consecutive year.

In addition to reporting a continuing decline in case filings and verdicts, it has nothing to do with 2010. It is limited to medical malpractice cases. It says that, in Philadelphia, in 2009, there were 33 jury verdicts for the defense, 3 verdicts for $500,000 or less, no verdicts between $500,000 and $1 million, and six verdicts between $1 million and $5 million.

For reference, most physicians in Pennsylvania have over $1 million insurance coverage, most of it subsidized by the state through the MCARE Fund. Thus, for all of 2009, there were six medical malpractice verdicts in Philadelphia that even approached insurance policy limits (and, as I mentioned before, even a verdict well in excess of insurance rarely means the plaintiff recovers more than the available insurance). If any of those cases also involved a hospital, then the verdict was nowhere near insurance policy limits.

Some hellhole.

But that’s enough fun for now; there’s a much more sinister side of this propaganda that can’t go without note.

Consider how the ATRA answers its own rhetorical question: What makes a jurisdiction a judicial hellhole?

While most judges honor their commitment to be unbiased arbiters in the pursuit of truth and justice, Judicial Hellholes judges do not. Instead, these few jurists may favor local plaintiffs’ lawyers and their clients over defendant corporations. Some, in remarkable moments of candor, have admitted their biases. More often, judges may, with the best of intentions, make rulings for the sake of expediency or efficiency that have the effect of depriving a party of its right to a proper defense.

What Judicial Hellholes have in common is that they systematically fail to adhere to core judicial tenets or principles of the law. They have strayed from the mission of providing legitimate victims a forum in which to seek just compensation from those whose wrongful acts caused their injuries.

That is, Philadelphia judges are “biased” to the point of “systematically fail[ing] to adhere to core judicial tenets or principles of the law.”

Why attack the judges personally, without any actual evidence of corruption or bias? Why not just criticize Philadelphia’s policies?

Because the ATRA doesn’t want to debate the merits. They don’t care about the law. They want to undermine public confidence in the judicial system — particularly the judges who run it — so that you citizens, voters, and jurors will think the whole system is unfair, and will bring those misunderstandings with you into the ballot box and the jury deliberation room.

Which is just what insurance companies and big businesses paid the ATRA to do.

Read more about our legal services at our Philadelphia personal injury lawyer page.

The Insurance Journal reports a rise in legal malpractice claims. Incredibly, there has been no hand wringing about increased malpractice rates for lawyers or fears that lawyers will no longer be able to keep their practices open as their insurance rates rise. We have never had a legal malpractice claim yet our rates continue to increase. No one cries for us.

A part of the rise in the number of legal malpractice claims is countersuits against lawyers who are suing their clients to pay their bill. But I think the larger problem is what the article calls "door law," a phrase I have never heard before but I really like. Door law is when lawyers take any client who walks through the door who might generate a fee. When law firms step outside their areas of expertise, bad things are going to happen.

As I have always said, the biggest personal injury cases typically come not to personal injury lawyers but to domestic, workers comp, and criminal lawyers. Why? Because everyone’s got a "guy" when there is a catastrophic injury case. Because of the nature of these areas of practice, these lawyers see a higher volume of clients than personal injury attorneys who are only handling serious cases.

The smart play for these lawyers – and, believe me, I get that this is self serving, but stay with me – is to refer the case out to someone who knows how to handle the case.

In terms of the overall number of claims filed with legal malpractice insurers, I think countersuits are a big part of the story. As Above The Law quoted yesterday, the Boston Globe recently ran an article on a growing number of fee disputes between corporate clients and "BigLaw" firms:

Although the matter is still being contested — Northland has asked a court to reduce its bill still further, to zero — the arbitrator’s finding calls into question the business model Goodwin and many other large law firms have relied on for decades: Deploying huge legal teams to pursue clients’ cases, often assigning more than a dozen lawyers to compile research, conduct depositions, and draft motions.

The promise of such treatment is part of what attracts clients to large firms, but it can also leave them shocked when they get bills for work by a multitude of lawyers, each costing upward of $250 an hour, and some much more.

The standard business model at big corporate law firms is called "leverage" for a reason: the firm "leverages" each senior partner’s cases by overworking them with a pyramid-shaped phalanx of junior partners, senior associates, and junior associates. Of course, there’s no guarantee that all that money will get you a better result; consider the utterly, totally botched McCourt divorce which just left ownership of the Dodgers in limbo.

But Ron’s point is well-taken: most solo and small firm lawyers are better served by referring large-damages — and thus potentially large-malpractice-liability — cases off to specialized firms that routinely handle those cases. Although there are plenty of "domestic, workers comp, and criminal lawyers" (and lawyers who handle issues relating to unions) who are wise enough to refer everything of substantial size off to a specialized plaintiffs’ firm and then collect a big check a year or two later, many lawyers don’t even recognize the full potential of many of their cases. I’ve heard many lawyers talk about catastrophic, permanent injury cases that they settled for less than $50,000, cases where the client — and the lawyer — could have done much better by referring it out.

The difference between specialized plaintiffs’ firms and smaller generalized practices isn’t just experience, though that helps, but that the firm is structured to handle these types of expensive, time-intensive cases. Firms which include a substantial practice of major personal injury cases (e.g., medical malpractice, catastrophic injury, wrongful death, etc) are set up in a completely different way from most small firms and corporate firms; for example, they’re better capitalized, have in-house nurses and paralegals familiar with the cases, have databanks of experts and legal research, and have multiple checks in place for ensuring that critical deadlines (filing of complaint, response to motions, completion of discovery, disclosure of expert reports) are met.

But the door does swing both ways. There’s a temptation at specialized large-damages firms to take "little" cases to increase cash flow. Same goes for the hourly billing cases.

There’s nothing that forbids large-damages plaintiffs’ firms from taking these types of cases — just like how there’s nothing that precludes a well-prepared and adequately-capitalized solo practitioner from taking on a large-damage case — but the moment you bring on a "little" case is the moment you set yourself up for either (a) an inefficient use of your time and energy overworking a "little" case or (b) not devoting enough time and energy on a "little" case. The former doesn’t serve your interests or your other clients’ interests; the latter doesn’t serve your "little" clients’ interest.

That’s not to say that lawyers have to specialize on a particular type of claim; consider the aforementioned McCourt divorce, in which the warring McCourts brought in, respectively, Stephen Susman and David Boies, neither of whom can even pretend to any notable experience or specialization in California family law. That’s okay: the nature of the claim was similar to their experience and specialization, and they both brought along family law experts to help them out.

But unless you or your client has five, six or seven figures of cash just waiting to be spent on specialized assistance, be careful taking "just one" or "just a few" of cases that don’t fit in your firm portfolio.

If you have been seriously injured, contact a personal injury lawyer.

The New Yorker recently reviewed Jay-Z’s book explaining his discography (“Decoded”) alongside “The Anthology of Rap,” a nine-hundred-page compendium published by two English professors who argue that rap should be considered a form of modern poetry.

I won’t touch that argument; poets and English professors are notoriously violent.

But one part of the article bears particular relevance to advocates:

Too often, hip-hop’s embrace of crime narratives has been portrayed as a flaw or a mistake, a regrettable detour from the overtly ideological rhymes of groups like Public Enemy. But in Jay-Z’s view Public Enemy is an anomaly. “You rarely become Chuck D when you’re listening to Public Enemy,” he writes. “It’s more like watching a really, really lively speech.” By contrast, his tales of hustling were generous, because they made it easy for fans to imagine that they were part of the action. “I don’t think any listeners think I’m threatening them,” he writes. “I think they’re singing along with me, threatening someone else. They’re thinking, Yeah, I’m coming for you. And they might apply it to anything, to taking their next math test or straightening out that chick talking outta pocket in the next cubicle.

There’s a crucial distinction between making a compelling argument and truly conveying to a listener the emotions you feel. Legal advocacy is nominally only about the former; there’s no shortage of cases and commentators complaining about “inflaming the jury’s passions” or the like. (Don’t believe everything you read — defense lawyers try to “inflame the jury’s passions” just as often as plaintiff’s lawyers.)

But in practice legal advocacy is about both. A “really lively speech” isn’t as persuasive as a “really lively speech” that also helps listeners “imagine that they were part of action” — and thus helps listeners feel, and not just think, the same unwavering conviction and rightness that the lawyer feels about their client’s cause.

As much as we would all like to draft every brief, and prepare every argument, with the head and the heart, with overwhelming reason and passion, most lawyers default to either the reasoned or the emotive perspective in their drafting and preparation. (In my humble opinion, the more complicated the law in the case is, the more likely it is that lawyers will focus primarily on their reasoning.) Then, to the extent possible, and largely as an afterthought, the lawyer will either nudge an emotive argument to fit with the reasoning or sprinkle the reasoning with emotion.

Yet, as I described in my part of The Jury Expert’s article on Don Keenan & David Ball’s “Reptile” book:

In the field of advocacy, little has changed since the publication of Aristotle’s Rhetoric two and a half millenia ago. “There are, then, these three means of effecting persuasion. The man who is to be in command of them must, it is clear, be able (1) to reason logically, (2) to understand human character and goodness in their various forms, and (3) to understand the emotions-that is, to name them and describe them, to know their causes and the way in which they are excited.” Whatever label we give our particular means of exciting the emotions — such as Ball and Keenan’s “reptile” or Allen, Schwartz and Wyzga’s “moral sense” — we must be careful not to miss the forest for the trees.

Advocacy is an art driven by language and emotion, not a science driven by data and testable hypotheses. Although it is always folly to attempt to manipulate a jury, advocates must remain open to all of the rhetorical tools available to them, and must adapt to the case at hand, sometimes by focusing on “the immediate danger of the kind of thing the defendant did,” sometimes by crafting a “persuasive narrative” through “attention choreography,” and sometimes by mixing those approaches.


As Aristotle described in the Poetics:

Poetry in general seems to have sprung from two causes, each of them lying deep in our nature. First, the instinct of imitation is implanted in man from childhood, one difference between him and other animals being that he is the most imitative of living creatures, and through imitation learns his earliest lessons; and no less universal is the pleasure felt in things imitated. We have evidence of this in the facts of experience. Objects which in themselves we view with pain, we delight to contemplate when reproduced with minute fidelity: such as the forms of the most ignoble animals and of dead bodies. The cause of this again is, that to learn gives the liveliest pleasure, not only to philosophers but to men in general; whose capacity, however, of learning is more limited. Thus the reason why men enjoy seeing a likeness is, that in contemplating it they find themselves learning or inferring, and saying perhaps, ‘Ah, that is he.’ For if you happen not to have seen the original, the pleasure will be due not to the imitation as such, but to the execution, the coloring, or some such other cause.

Imitation, then, is one instinct of our nature. Next, there is the instinct for ‘harmony’ and rhythm, meters being manifestly sections of rhythm. Persons, therefore, starting with this natural gift developed by degrees their special aptitudes, till their rude improvisations gave birth to Poetry.

Per Aristotle, advocates need first and foremost to “reason logically,” but should also “excite the emotions,” including by enabling “the instinct of imitation.”

Part Chuck D, part Jay-Z.

(But leave the “harmony and rhythm” to the poets and the rappers.)

[Update: Judge Massiah-Jackson upheld the verdict and overruled the defendants’ post-trial motions. Now comes the appeal to the Pennsylvania Superior Court.]

[Update 2: The Pennsylvania Superior Court reversed, citing three grounds: an error in the jury instruction, the need for Dr. Booth to produce an expert report before trial, and the need for the jury to hear about Dr. Booth’s tolling agreement with the plaintiff. Judge Wecht dissented on all three of those issues.]

[Update 3: The Pennsylvania Supreme Court reversed the Superior Court on every issue, an important win for plaintiffs.]

[Update 4: The Pennsylvania Superior Court  decided the damages issue, holding that the verdict was excessive, and instructing the trial court to re-hear on the issue of remittitur.

Let me add a note here: it has been six years since the trial verdict, and eight years since the lawsuit was filed. This case is a harsh reminder that a big verdict doesn’t necessarily mean money in the plaintiff’s pocket — often it means many more years of litigation ahead.]

As The Legal Intelligencer hinted last night:

A Philadelphia jury returned a $27.6 million verdict Monday in favor of a woman and her husband who said she was injured while taking part in a promotional video for an artificial knee implant. Philadelphia Common Pleas Court Judge Frederica A. Massiah-Jackson presided over the trial in Polett v. Public Communications Inc. The judge confirmed that the jury awarded $26.6 million to plaintiff Margo Polett and $1 million to plaintiff Dan Polett for loss of consortium. The jury apportioned 36 percent negligence to public relations company Public Communications Inc., the Chicago firm hired to make the artificial knee video, 34 percent negligence to orthopedic medical device manufacturer Zimmer, and 30 percent negligence to Margo Polett, the judge confirmed.

Polett, 71, of Gladwyne, Pa., now must use a walker and she has had four surgeries that have failed to improve her condition, the plaintiffs’ memorandum said.

We’re no strangers to big verdicts; just last week, the Pennsylvania Superior Court affirmed a $20.5 million verdict that Slade McLaughlin and I obtained two years ago.

Our case was substantially different from Ms. Polett’s — there’s a big difference between the death of an 18-year-old and an injury which is crippling, but not paralyzing, to a woman in her 60s at the time of the accident.

But large verdicts all tend to share one thing in common: outrage.

I haven’t a clue what happened at the trial. But from looking at the docket, I can make a few educated guesses. Consider these pre-trial rulings:


Just look at the nonsense the defendants filed. A summary judgment based on “no duty” and comparative negligence as a barrier to relief? That used to work a few generations ago under the banner of “contributory negligence.” These days it’s an “outmoded, and widely criticized, legal doctrine” that was replaced by 42 Pa.C.S.A. § 7102. Gorski v. Smith, 812 A.2d 683, 701 (Pa. Super. Ct. 2002). Little wonder the defendants lost that one.

Then, having lost that issue on summary judgment, they raised the same issue again — rephrased as an effort to preclude “opinion testimony” on the matter — as a motion in limine, where they again lost. Again, little wonder. See Pa.R.E. 702, 42 Pa.C.S.A. (“If scientific, technical or other specialized knowledge beyond that possessed by a layperson will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise[]”). See also Miller v. Brass Rail Tavern, Inc., 541 Pa. 474, 480-481, 664 A.2d 525, 528 (1995) (holding, “The test to be applied … is whether the witness has any reasonable pretension to specialized knowledge on the subject under investigation. If he does, he may testify and the weight to be given to such testimony is for the trier of fact to determine.”).

Then they filed motion in limine to preclude “incomplete hypothetical scenarios?” If an opponent’s hypothetical is incomplete, you have more than enough opportunity to explain that to the jury. Unless the scenario is totally baseless — which even the defendant knew it wasn’t, otherwise they would have filed a Frye motion instead, per Trach v. Fellin, 817 A.2d 1102 (Pa. Super. Ct. 2003) — then the issue goes for the jury to determine.

Just off the titles I can predict that the defense was predicated upon blaming the victim entirely for the accident, asserting that they had no responsibility whatsoever to the plaintiff, and legal hail-mary throws aimed at taking factual determinations from the jury.

Don’t believe me? Consider the first things they did in the case: file a third-party complaint against Dr. Robert Booth, her treating physician and the inventor of the knee replacement itself. Little wonder he testified (as far as I can tell from the reporting) that, in his medical opinion, the plaintiff’s injuries had nothing to do with his treatment or with the nature of the device itself.

All of which, I’m sure, went over like a lead balloon. Juries don’t like it when people who are at least partly at fault for the damage claim to be unaccountable.

I doubt Ms. Polett will take home anywhere near the $8mm to $19mm due under the verdict (consider the reality of birth injury verdicts), but it’s no surprise that she’s walking away victorious.

On Sunday, the New York Times returned to third-party funding of lawsuits with “Investors Put Money on Lawsuits to Get Payouts:”

Large banks, hedge funds and private investors hungry for new and lucrative opportunities are bankrolling other people’s lawsuits, pumping hundreds of millions of dollars into medical malpractice claims, divorce battles and class actions against corporations — all in the hope of sharing in the potential winnings.

Total investments in lawsuits at any given time now exceed $1 billion, several industry participants estimated. Although no figures are available on the number of lawsuits supported by lenders, public records from one state, New York, show that over the last decade, more than 250 law firms borrowed on pending cases, often repeatedly.

The rise of lending to plaintiffs and their lawyers is a result of the high cost of litigation. Pursuing a civil action in federal court costs an average of $15,000, the Federal Judicial Center reported last year. Cases involving scientific evidence, like medical malpractice claims, often cost more than $100,000. Some people cannot afford to pursue claims; others are overwhelmed by corporate defendants with deeper pockets.

A review by The New York Times and the Center for Public Integrity shows that the inflow of money is giving more people a day in court and arming them with well-paid experts and elaborate evidence. It is helping to ensure that cases are decided by merit rather than resources, echoing and expanding a shift a century ago when lawyers started fronting money for clients’ lawsuits.

On the one hand, it’s hard for me to say much new about these issues, since I’ve already discussed the issue twice in “Investing in Lawsuits” – The Free Market Counterpart to Liability Insurance and Investing In Lawsuits, Part II: New Law Review Article On Third-Party Litigation Funding.

In short, there’s nothing novel or interesting about the idea of a third-party funding litigation — we already have a multitrillion dollar industry devoted to the practice, it just happens to be devoted entirely to litigation defense. We call it “liability insurance.”

Since we permit defendants to have a third-party fund their defense and indemnify their liability, it stands to reason and to fairness that we should permit plaintiffs to reach financial agreements with third-parties to fund their claims and to share the proceeds of those claims. Anything less would deny plaintiffs a fair resolution of their cases on the merits, since the lack of resources would preclude many plaintiffs from pursuing meritorious claims, just like the lack of defense insurance would force defendants with inadequate resources to settle.

It’s refreshing to see that many of the people invited to comment in the “Room for Debate” connected to the article — alas, not one of which is a practicing attorney — get the analogy between insurance and plaintiff-side funding. Here’s Prof. Susan Lorde Martin:

Defendants in lawsuits often have insurers to finance their litigation expenses; litigation finance firms merely play that same role for plaintiffs, leveling the playing field. Such financing can allow a plaintiff to remain in the legal battle long enough to have a realistic opportunity to achieve legal success. It can also serve as an alternative way for businesses to manage risk and cash flow associated with legal proceedings.

There is no public policy reason to deny businesses the opportunity to share litigation risks with interested lenders or investors in exchange for some of the proceeds. Individuals who receive such financing are represented by lawyers, and if they lose their lawsuits they keep the money advanced to them and do not have to pay anything back.

Prof. Anthony Sebok takes this analogy one step further, and sees the possibility of litigating financing spreading to the masses, opening a world of civil litigation previously denied to everyone who either isn’t rich or didn’t suffer enough in economic damages to encourage a plaintiff’s lawyer:

While I am concerned about the overall cost of litigation, I am more concerned about the imbalance of resources available to the average American. Right now, our system depends on lawyers who take on plaintiffs’ cases to carry the costs of the cases. This is one reason the contingency fee has become an indispensable part of our civil litigation system.

I have nothing against lawyers financing litigation, but I do not understand why lawyers are the only option available to plaintiffs seeking capital from an outside source. Non-lawyer funders (litigation financing firms and/or third-party investors in lawsuits) might even be able to provide this capital more cheaply and more transparently so that lawyers would charge only for their time and nothing more. Non-lawyer funders could also help finance litigation costs for defendants as well.

Indeed, one of the main reason contingent fee lawyers charge so much is because their work is so risky. Plenty of cases end with lawyers spending hundreds or thousands of hours, and tens or hundreds of thousands of dollars (sometimes millions), and ending up with nothing. Consider A Civil Action. A lot of patent infringement lawyers learn the hard way when they invest more than a million dollars in a case in just expenses, not to mention attorney time.

Even some of the tort reformers have had some sense knocked into them. Prof. Richard Epstein — who has proven himself to be wholly unfamiliar with the American legal system — admits that his key concern is an empirical one, and that he doesn’t have the data to reach a conclusion either way:

The key question is whether these new aggregations of wealth are sufficient to force defendants to settle cases on disadvantageous terms because they cannot afford to pay the legal fees needed for defense. That question is exceedingly difficult to answer because the legal system already affords some protection against burdensome document production and endless depositions of expert witnesses. It is hard to say in the abstract whether that is enough.

It’s difficult to answer that question in the abstract, but consider this: in the vast majority of cases, the costs are low enough that attorneys don’t need to use third-party financing. Major investment in a case usually only occurs in mass tort cases brought against huge corporate defendants — the article in The New York Times gives an example of a case brought by “residents of the faded Texas factory town” against BNSF Railway, “the nation’s second-largest railroad company.”

Does anyone have trouble distinguishing David from Goliath there? Does anyone really believe that BNSF Railway doesn’t have adequate funds to defend the case? If BNSF Railway ends up settling it, it will be because the company is worried about liability, not because it can’t afford the costs of defense.

But there’s always someone willing to complain about a good idea, and this time it’s Prof. Paul Rubin, an economist:

The main effect of allowing third party finance is to increase the number of lawsuits. This will happen for two reasons. First, some lawsuits are too expensive or too risky for law firms to finance themselves. A law firm paid on a contingency basis finances the lawsuit, but if a lawsuit is too expensive and too risky no law firm will be able to undertake this financing. Thus, allowing third party finance will enable these expensive lawsuits to proceed.

In other words, it’s a good thing that meritorious cases will not be brought because they are “too expensive and too risky” to take on. Let the victims eat cake.

Prof. Rubin doesn’t seem to have enough familiarity with the tort system to know what makes a case “too expensive and too risky,” but I can tell you the two biggest factors: the amount of damage caused by the potential defendant and the ability of the defendant to over-litigate the case. In general, the more widespread the damage, the harder it is to prove the damage within the rigorous standards demanded by courts, and the more will need to be spent on the investigation and the experts.

To take one example, environmental cases are notoriously expenses and risky, and companies fight them to the death — just ask Erin Brockovich, who is heading back to her hometown after “a large plume of water laced with the offending hexavalent chromium, or chromium 6, has been found spreading beyond an agreed containment boundary and towards residents’ homes.”

But let’s move on to Prof. Rubin’s other factor:

Second, allowing third-party finance will create an interest group — those with experience in financing lawsuits. As an interest group these financiers will act so as to increase the amount of lawsuits in society, and to resist efforts at reform. Since we already have excessive litigation in the U.S. anything which increases the amount of litigation like third-party finance is likely to be harmful.

I suppose there’s some truth to that — and there’s even more truth to the fact that we already have an “interest group” that acts to decrease the amount of lawsuits and liability in America, despite the merits of those cases.

It’s called the insurance industry.

Does Prof. Rubin think they should be banned, too?

Or is this a heads-defendants-win, tails-plaintiffs-lose type of argument?

Of the over one million people injured or killed annually by preventable medical malpractice, only a fraction have their claims reviewed by the legal system. We can’t be sure how small that fraction is — since the health care industry spends millions of dollars every year convincing Congress to frustrate error-reporting — but we know it is small, since only approximately 85,000 medical malpractice lawsuits are filed, less than 10% of those million annual “iatrogenic” incidents. In the bulk of incidents, either the patient (or their survivors) don’t even suspect that malpractice occurred, or they suspect that malpractice occurred and nonetheless choose not to bring a claim at all.

Once we get into incidents in which a patient seeks out legal advice because they suspect malpractice, the vast majority of those cases are resolved without a lawsuit even being filed, much less a payment from the physicians or the hospital to the patient. Trial lawyers (like me) reject the majority of potential malpractice cases that come in; a 90% rejection rate would would be a conservative estimate. Estimates for the claims-per-incidents range from one-in-seven to one-in-twelve.

Obstetrical malpractice cases are no exception. As I’ve written before, in the context of a pediatrician who was the victim herself of obstetrical malpractice:

Obstetrical malpractice cases are difficult and expensive. They take years and hundreds, sometimes thousands, of hours, as well as hundreds of thousands of dollars spent out of pocket to pay for experts and other litigation costs.

Putting aside attorney time, her case would easily cost a newborn seizures lawyer $250,000 just to survive summary judgment. You’ll need an obstetrician to comment on the discharge and the delivery, a pathologist to look at the report on the placenta,  an emergency physician and/or hospitalist to comment on how the hospital handled her hemorrhaging, and a neonatologist to comment on how the hospital handled the baby’s discharge and re-admission. If the defense coughs up some irrelevant expert — perhaps a psychologist, to say the mother had pre-existing undiagnosed depression, or issues with her father, or some other nonsense — you may need to get one of the same to rebut them.

Your paralegal will spend thousands of hours just sorting through the records to give you their thoughts and to get the records to the experts in a presentable and organized form, since the experts bill by the hour. If you are lucky and efficient, you can file all the necessary pleadings and motions, and conduct all the discovery and depositions, in less than 100 hours of work. That’s a generous estimate; you will likely need many times that. In discovery and at trial, the doctors will have explanations for everything, as will the defense lawyers. Your client is just in it for the money. Are you accusing these good doctors of falsifying medical records? That’s outrageous. She’s a liar. Why would the nurses and doctors falsify a medical record? They were trying to help her. It’s her fault.

The pediatrician there saw a trial lawyer who told her she didn’t have a case; there was malpractice all right, but without significant economic damages resulting from a birth injury to the child, the case wasn’t worth the risk of pursuit. Many times, even if there is malpractice, and was damage, it’s a serious challenge to prove that the malpractice caused the damage. (Extremely premature children, for example, are so prone to complications that it’s difficult to separate out the effect of the malpractice and the effect of the prematurity.)

Once we get through the fraction of the fraction of potential malpractice cases — i.e., the small fraction of overall malpractice incidents which resulted in someone seeking legal advice, and then the small fraction of potential malpractice incidents which are actually put into a lawsuit — we enter another black hole of data. There is an extensive amount of data out there reflecting the nature of medical malpractice litigation in America, but it’s is all held by the insurance companies and by the National Practitioner Data Bank, neither of which are too keen on sharing it, so we only have that information in the aggregate.

But what we have tells us a lot. As Public Citizen found in examining the NPDB data,

  • Between 10,000 and 11,000 cases result in a payment to an injured patient or their survivors by way of settlement or conclusion of all appeals annually;
  • The total payments average between $3.5 billion and $4 billion annually, about $11 per person — about as much as we pay to subsidize oil companies drilling new wells;
  • Three-quarters of that money is paid to cases where the patient died or suffered a significant permanent injury.

Then there’s the matter of the >80,000 lawsuits filed and the <11,000 payments made. Plaintiffs typically lose medical malpractice cases. Their cases are dismissed on summary judgment, dismissed on directed verdict, rejected by juries (between 75% and 85% of trials result in verdicts for the physician), dismissed on post-trial motions, and dismissed on appeal. It’s not a cakewalk. That’s why trial lawyers are so selective, why the litigation is so expensive, and why the fees are so high.

“Maybe so,” say the tort reformers, “but what about those eight or nine-figure judgments?”

Indeed, what about cases like the one profiled by New York Injury Cases Blog, “Brain Damage from Medical Malpractice at Birth – $56 Million Verdict, including $22 Million for Pain and Suffering, to be Resolved on Appeal.”

The facts of the case were familiar to attorneys who litigate birth injury cases:

On October 10, 2003, Mary Swanson, then 41 years old, delivered her fourth child, Michael, at a hospital in Mount Kisco, New York. During delivery, shoulder dystocia was encountered (a condition at delivery in which the baby’s shoulder gets hung up on the mother’s pubic bone after delivery of the baby’s head).

Due to the application of force to relieve the dystocia, Michael sustained a brachial plexus injury (known as Erb’s palsy, a usually transient condition in which nerve roots of the spinal cord are damaged and, typically, a child’s arm becomes pulled in towards his body and internally rotated).

Michael’s parents sued the hospital and Mary’s obstetrician claiming that the shoulder dystocia problem was mismanaged, its resolution wrongly delayed and excessive force applied to the baby’s head during nine minutes from delivery of the head until full delivery. As a result, plaintiffs claimed that Michael sustained not only a brachial plexus injury but also asphyxia (loss of consciousness due to too little oxygen) and a brainstem injury leaving him with developmental delays, including speech, language and cognitive function deficits as well as difficulty swallowing and recurrent aspiration syndrome.

The case was by no means a slam dunk. Michael’s problems weren’t diagnosed until he was two years old; that’s not uncommon if a child isn’t being followed by developmental specialists, since only the gross motor delays will really be apparent before then, but it gives defense lawyers and defense experts an opening. Perhaps worse, the original lawyers had themselves, shall we say, misdiagnosed the case, originally alleging only physical injuries common with shoulder dystocia (e.g., bruising), and not the neurological injuries common with
perinatal distress, acidosis, and hypoxia-ischemia.

Then again, there was this part:

There was evidence that the hospital’s records as to this incident may have been changed or altered after the fact. Its original chart was missing and a microfiche of the records was produced that had been prepared almost three years after the delivery.

The Swanson’s attorney weighed all of this information and offered to settle the case against the obstetrician and her practice group before the verdict for $2.7 million, $600,000 below their policy limits.

They said no. Then came the verdict.

Unsurprisingly, the jury was less than impressed with the hospital’s creative recordkeeping:

During deliberations, the jury sent out a note asking if they found the hospital not liable for physical injuries to Michael, but should pay restitution for sloppy recordkeeping and/or falsification of documents, could they still award damages. The judge told them “no” but thereafter they returned their verdict for the plaintiffs. The defense claims that this note shows the jury’s stated intention to impose restitution and penalize the hospital for improper reasons.

$56 million is a lot of money. Bigger than any single physician’s insurance policy. Bigger than most hospital insurance policies.

And what happened then?

Shortly after trial, the Swansons accepted a settlement offer from the doctor and her group representing their full malpractice insurance policy limits of about $3,300,000.

A little under 6% of the overall verdict.

I don’t know what will happen with the claim against the hospital, which has appealed. It doesn’t take much to get a large obstetrical malpractice verdict reversed, like I wrote before:

Medical malpractice cases truly are different. Little issues that routinely happen in other trials, like a highly-knowledgeable witness slipping from factual testimony into opinion testimony, take on exaggerated importance in medical malpractice cases. When you’ve got an unqualified witness arguably opining on the standard of care — no matter how close they were to the action, no matter if they are also a “medical professional” — you should thank your lucky stars the testimony is going in at all and should be more than willing to accept a contemporaneous instruction in exchange for allowing the testimony.

John knows the New York cases; even if the appellate court upholds liability against the hospital, it will reduce the verdict considerably:

Should liability against the hospital be upheld, it’s quite likely that the appellate court will hold that the $22,000,000 pain and suffering award is grossly excessive and slash substantially in view of recent relevant appellate court cases dealing with injuries and conditions that appear to be much worse than those dealt with by Michael Swanson, such as cerebral palsy, and which determined that pain and suffering damages should be reduced to the $3,000,000 to $4,250,000 range.

The verdict will then be reduced by the $3,300,000 settlement. If John’s right, that means the hospital could be liable for anywhere between $0 and only $950,000.

The total payout to the plaintiff seems likely to be below $4,500,000; if you give any credit at all to the plaintiff’s case, as the jury did and the trial judge upheld, that’s certainly not absurd, outrageous, obscene, or any of the other adjectives applied to large verdicts.

But you don’t hear about this reality from the tort reformers, the health care industry lobbyists, or the media. You just hear “$56 million verdict” and then the band plays on.

Read more about Pennsylvania medical malpractice and our medical malpractice and birth injury legal services.