Author Archives

Stuart Taylor, Jr.

Posted on

The Right Way to Curb Fees

by Stuart Taylor, Jr.

Stung by growing interest in an intriguing proposal for curbing contingent fees on early offers of settlement, the personal injury bar and other lawyers have mounted a ferocious counterattack with the approach of California’s March 26 primary election (when the proposal will be on the ballot).

A lot of their arguments have been so crude as to evidence both "the transparent self-interestedness" and "the ineptitude" of some members of the plaintiffs bar, in the words of Professor Stephen Gillers of New York University Law School.

But the debate has also featured some serious and substantive critiques of the proposal-not least by the same Professor Gillers. The hard question is whether these arguments make out a plausible case that it would do more harm than good.

Proposition 202, as it is called-and for which I have tentatively expressed enthusiasm in this column ("Tort Lawyers vs. Consumers," Jan. 29, 1996, Page 23)-would cap contingent fees at 15 percent of any settlement offer made by the defendant within 60 days of a claimant’s demand for compensation; if the claimant rejected the offer, the lawyer would remain free to charge whatever otherwise lawful percentage the claimant agreed to pay of that portion (but only that portion) of any eventual recovery that exceeded the original offer. The proposal would apply in all tort cases except class actions.

Posted on

Online NewsHour: Racial Justice – February 26, 1996

by

CHARLAYNE HUNTER-GAULT: For more on today’s Supreme Court hearing, we’re joined by Stuart Taylor, correspondent for "The American Lawyer" and "Legal Times" and a NewsHour regular. Stuart, thank you for joining us. There’s probably not much to add to that, but is there anything else that we need to know that clarifies exactly what it is that the court heard today?

STUART TAYLOR, The American Lawyer: Well, they–what they have is a relatively narrow piece of a big social issue. The big social issue is whether we have racial bias in our criminal justice system, and there are lots of statistics showing huge, hugely disproportionate numbers of blacks being locked up for certain crimes, particularly drug crimes, and especially crack cocaine, which has huge penalties. The narrower issue the court is deciding is whether the defendants in this case have made enough of a preliminary showing to get to first base, as it is, as it were in trying the very difficult task of proving race-based selective prosecution which, if proven, is a violation of the Constitution and would justify throwing out the cases against them.

CHARLAYNE HUNTER-GAULT: And where would that take us? I mean, where would that leave us in the whole issue of selective prosecution?

Posted on

Free the Rodney King Judge

by Stuart Taylor, Jr.

Could something good finally come from the brutal, racially charged, videotaped beating of Rodney King that shocked the nation five years ago?

That depends on whether the Supreme Court seizes the opportunity, in two cases that the King beating spawned, to restore some humanity and balance to the federal criminal sentencing process.

The Court could do this by making it clear that in cases like these, which involve extraordinary mitigating circumstances, federal district judges have enough leeway to show convicted defendants some mercy, and to treat them as individuals-rather than as numbers to be crunched through the arcane formulas of the Federal Sentencing Guidelines.

The irony is that the defendants appealing for mercy in the cases at hand are Stacey Koon and Laurence Powell, the two former Los Angeles cops who were convicted by a federal jury of violating King’s civil rights. The Court heard arguments in the cases, Koon v. United States and Powell v. United States, on Feb. 20.

Koon and Powell were released from federal confinement last December after serving the 30-month terms (minus time off for good behavior) ordered by U.S. District Judge John Davies. But the U.S. Court of Appeals for the 9th Circuit held that Judge Davies had let the two off far too easily when he granted them "downward departures" that spared them more than half of the 70 to 87 months of imprisonment suggested by the sentencing guidelines. Unless they win their Supreme Court appeals, the ex-cops will apparently have to go back to prison for three more years.

Posted on

NewsHour: Mandatory Sentencing – February 20, 1996

by

ELIZABETH FARNSWORTH: For more on today’s Supreme Court hearing, we’re joined by Stuart Taylor, correspondent for the "American Lawyer" and "Legal Times," and a regular on the NewsHour. Welcome, Stuart. What was happening in 1984 that caused Congress to want these guidelines, to begin the process of drawing up the guidelines?

STUART TAYLOR, The American Lawyer: There was a lot of criticism at that time that the traditional method of criminal sentencing, which is letting the judge decide what he thinks is the appropriate sentence out of a huge range of possibilities was leading to wild disparities over the country, depending not so much on the nature of the crime and the criminal as on the judge. Soft judges were giving light sentences to people who did terrible things. Hard, tough judges were giving heavy sentences to people who did less serious things, and there was a convergence of liberal reformers who didn’t like these disparities and conservatives who were worried about some judges mollycoddling criminals, came together and said let’s have some uniformity, let’s tie these judges down to some guidelines so that the sentence doesn’t depend on who the judge is.

ELIZABETH FARNSWORTH: And how do the guidelines work? They’re very complicated.

MR. TAYLOR: Right. That principle was carried to very detailed specification initially by Congress but in more detail by the sentencing commission that Congress created of how much the sentence ought to be for every one of the zillion crimes in the federal criminal code, and then with adjustments upwards for the criminal record, and the, the embodiment of it is all this grid which is actually what a federal judge is supposed to use when he passes sentence. You look at the offense level and in this case, for example, these two police officers, they said, we start with six, because they violated the civil rights of Rodney King, and then–

Posted on

Time of Testing for Kenneth Starr

by Stuart Taylor, Jr.

The most important lawyer in America this year is Kenneth Starr, the Whitewater independent counsel.

Starr has the awesome responsibility of passing the most definitive official judgment that we will get in this election year on whether President Bill Clinton and first lady Hillary Rodham Clinton are lawbreakers, or liars, or both. And it’s time Starr began working at that job full time and resolving the key questions.

This has already taken longer than it needed to, perhaps in part because of Starr’s part-time status. In an era of deep public cynicism about government, it will take consummate skill, wisdom, balance, and attention to detail to bring the investigation to a satisfactory conclusion. And Starr must operate under conditions that won’t make it easy for his work to inspire public confidence:

Starr is a politically active, conservative Republican, former solicitor general with ambitions to return to high office-whether by winning a Supreme Court appointment, by running for the Senate, or otherwise-and thus has an incentive to please the Republican leaders who are now bent on driving President Clinton from office.

Starr has expanded and prolonged an investigation that began more than two years ago, and was proceeding more expeditiously under his predecessor, Robert Fiske Jr. Starr had no prosecutorial experience. And he has continued to make very big bucks working part time for private clients, including a conservative foundation that has also financed some of the president’s most virulent critics, as well as tobacco clients and others that are locked in combat with the Clinton administration on various fronts.

Given all this baggage. Starr must work especially hard to dispel suspicions that his million-dollar-a-month investigation is tainted by a subtler brand of the partisanship than pervades the parallel probe being conducted by Sen. Alfonse D’Amato (R-N.Y).

Posted on

NewsHour: Presidential Subpoena – February 6, 1996

by

ELIZABETH FARNSWORTH: Thank you both for being with us. Rex Nelson, this trial is set to begin March 4th. Refresh our memory about the trial. What’s–who’s being charged with what?

REX NELSON, Arkansas Democrat-Gazette: (Little Rock) Well, of course, we have a Whitewater grand jury which has been meeting for quite some time here in Little Rock. An indictment came down from that grand jury on August 17th of last year charging Jill McDougal, Susan McDougal, and Bill Clinton’s successor as governor of Arkansas, Jim "Guy" Tucker. They are being tried together on charges that are not directly related to the Whitewater Development Corporation, which, of course, was the President’s partnership with Jim McDougal.

ELIZABETH FARNSWORTH: Now, they have, what, 17 charges in total? They’ve been indicted on 17 charges, or at least Susan McDougal has, right?

MR. NELSON: There are actually nineteen charges against Jim McDougal, eleven charges against Gov. Tucker, and eight charges against Susan McDougal.

ELIZABETH FARNSWORTH: And what–how was President Clinton related to this? Why would the McDougals want him to testify on their behalf?

MR. NELSON: Really, if the linchpin of the prosecution case is a former municipal judge here in Little Rock named David Hale. David Hale claims that a lot of Arkansas political figures back in the ’80’s put pressure on him to make unwise loans. One of those political figures was then Gov. Bill Clinton, and he says that Clinton put pressure on him to make a $300,000 loan to Susan McDougal, and so Susan McDougal says I need the President’s testimony in order to clear me.

ELIZABETH FARNSWORTH: And we should make it clear that the President is not being accused of any wrongdoing here.

Posted on

The Dangers of Judge-Bashing

by Stuart Taylor, Jr.

You may not have realized that the Supreme Court-even after a decade under Chief Justice William Rehnquist-is a liberal "judicial dictatorship" that "has centralized control over every moral, political, social, and economic issue in the country," as part of an "intellectual elite that believes the prevailing social order of middle-class America is deeply flawed, unjust, and irrational."

That’s what Patrick Buchanan has been telling Republican audiences as he campaigns for the presidential nomination. He’s also been asserting that the chief "beneficiaries of the Court’s protection" are "members of various minorities including criminals, atheists, homosexuals, flag burners, illegal immigrants (including terrorists), convicts, and pornographers."

And Republican true believers seem to lap it up, as did those assembled at the Heritage Foundation, in Washington, D.C., for the Jan. 29 Buchanan speech quoted above.

Not to be completely outdone in court-bashing, faltering front-runner Sen. Robert Dole (R-Kan.) declared in his Jan. 23 response to President Bill Clinton’s State of the Union address that "our liberal courts" are "[at] war with our values," so that we must (yet again!) "untie the hands of our police."

Who is he talking about? Sandra Day O’Connor?

Never mind that Republican presidents appointed nearly two-thirds of all 790 federal judges, including seven of the nine Supreme Court justices. Republican presidential aspirants are once again running against the courts, as they have done ever since Richard Nixon’s campaign in the 1968 election.

Posted on

Tort Lawyers Vs. Consumers

by Stuart Taylor, Jr.

Dear Fellow Attorney,

On March 26, 1996, your future as a lawyer will be at stake! There will be two initiatives on the [California] ballot that will end the tort system as you know it. If passed, they will affect all tort cases and eliminate virtually all cases involving motor vehicles. They are the pure NO FAULT AUTO INSURANCE ACT and the LAWYER CONTINGENT FEE UMYTATION ACT.

… No one will be handling automobile cases if this passes! Even if neither you nor your firm handles such cases, the impact on all attorneys and consumers should be obvious.

… [By] drastically reducing the number of filings…[the contingent fee proposal] will effect [sic] everyone in the tort system!

We believe most attorneys in California view those measures as bad for consumers and all others involved in the Civil Justice system.

"All others": Those are the key words in the last sentence of the above excerpts, which come from a mass mailing by the state’s main association of plaintiffs lawyers, the Consumer Attorneys of California (CAOC), formerly the California Trial Lawyers Association.

This mailing has been used to solicit secret PAC contributions from large numbers of business lawyers who represent tort defendants. It is a blatant appeal to the mutual self-interest of lawyers in perpetuating the profits they reap by litigating against one another at their clients’ expense.

The most unusual and salient fact about the tort system in this country is that more than 60 cents of every dollar expended by defendants and insurers goes not to compensate injured plaintiffs, but to pay for transaction costs-led by both sides’ legal fees.

Posted on

NewsHour: Stuart Taylor on the Whitewater Grand Jury – January 23, 1996

by

MARGARET WARNER: First Lady Hillary Clinton has been subpoenaed by Whitewater Independent Counsel Kenneth Starr to appear before a federal grand jury here in Washington this Friday. For more on this unprecedented event we hear from Stuart Taylor, correspondent for the American Lawyer and Legal Times and a regular on the NewsHour. All first, first give us the context for this. Which grand jury exactly is it that the First Lady’s been asked to appear before?

STUART TAYLOR, The American Lawyer: The grand jury in Washington. There’s also a grand jury in Little Rock being run by the same Independent Counsel, Kenneth Starr, investigating Whitewater and related matters. And the two grand juries are dividing their work up roughly with the Washington grand jury investigating the things that happened in Washington since President Clinton took office, the Arkansas grand jury investigating things that happened in Arkansas earlier, but there’s great overlap between the investigations. And they share information with each other.

MARGARET WARNER: All right. And what do we know from the subpoena or from what’s come out about what she’s going to be asked to testify about?

MR. TAYLOR: Well, the subpoena and the fact that about six or seven other people were subpoenaed seems to indicate that the Independent Counsel is particularly interested in how these Rose Law Firm billing records for Hillary Clinton appeared mysteriously in the White House living quarters some two years after they had been subpoenaed and whether someone was hiding them or obstructing justice. However, the White House statement that was put out yesterday also indicated that the First Lady was prepared to discuss the content of the billing records which suggest that some of the questions may get into looking at particular entries and how do you explain this and how do you reconcile it with your testimony on that and so forth.

Posted on

The Sentencing Tail Wagging the Guilt Dog

by Stuart Taylor, Jr.

For the jury, it was a close call whether to find Rene Rodriguez guilty of selling any marijuana at all.

On the third day of deliberations, the jurors told the judge that they were unable to reach a unanimous verdict. But finally, after being given an Allen charge, they brought in a conspiracy conviction. It was apparently based on prosecution evidence implicating Rodriguez in a 10-ounce marijuana sale, together with the judge’s instruction that all the jury had to find to convict was that Rodriguez had conspired to sell a "measurable" amount.

The sentence: life without parole.

How’s that? Rodriguez would have faced only 18 months in prison, increased to 4 1/2 years by his two prior drug convictions, if his sentence had been based on the 10-ounce sale that was proven beyond a reasonable doubt at trial.

What jacked his sentence up to life without parole, under as-early "three strikes and-you’re out" statute enacted by Congress, was a finding by the judge, at the post-verdict sentencing hearing, that Rodriguez had probably conspired to sell more than 1,000 kilograms of marijuana, not just 10 ounces.

He probably had. But the judge, Thomas Curran of the U.S. District Court in Milwaukee, did not suggest that this had been proven beyond a reasonable doubt, or even by clear and convincing evidence. Nor did the prosecution claim to have that kind of proof.

Rather, under the current federal sentencing regime, the prosecution had to prove only that it was more probable than not that Rodriguez had sold 1,000 kilograms, in order to condemn him to die in prison.