It was obvious to almost everybody after the twin towers came down that the foreseeable plague of lawsuits against the airline industry and the owners of the destroyed World Trade Center-as well as its architects, engineers, builders, insulation suppliers, and every other solvent company that had anything to do with the place, not to mention Boeing Co. and the City of New York-would be a repugnant spectacle.
Jack Nicklaus, Arnold Palmer, some current professional golfers, the PGA, and Washington Post sportswriter Sally Jenkins say that walking a golf course, and thus conquering fatigue, is an essential part of PGA Tour competition. Disabled golfer Casey Martin, many other pros, and New York Times sportswriter Dave Anderson say otherwise.
A 5-4 Supreme Court decision on April 24 left standing a silly Alabama policy that makes life unnecessarily difficult for some foreign-born Americans by requiring that they take their driver’s license exam in English. More important, the Court’s decision made it harder for many other potential plaintiffs to sue for possible violations of a key provision of the 1964 Civil Rights Act, which bars public and private programs that receive federal financial assistance (as most do) from discriminating on the basis of race or national origin. The four more-liberal Justices, in a dissent by John Paul Stevens, called the decision "unfounded in our precedent and hostile to decades of settled expectations." The New York Times said that it "substantially limited the effectiveness" of the act’s ban against discrimination." The Washington Post called it "retrograde."
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.
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.
Republican rule on Capitol Hill has put new wind in the sails of some dubious proposals for striking at the very real problem of wasteful and abusive litigation tactics.
"Reforms" like the English "loser pays" rule and numerical caps on damages, which are in the House Republicans’ Contract With America, would surely stop some unwarranted suits, but they would also thwart many injured people with legitimate claims.
There are some better ideas in the hopper-ideas aimed at slashing billions in wasteful litigation costs rather than shielding business from liability to injured individuals. One of the most intriguing, endorsed by an impressive array of legal luminaries, seems well-designed to help deserving plaintiffs get swifter, surer compensation and to ease the litigation burden on business (as well as on plaintiffs)-and all without limiting any plaintiff’s right to seek full redress.
What’s the trick? You guessed it: Take it out of the lawyers’ hide.
But this proposal is not the kind of crude, probably counterproductive fee cap that some states have passed. It is an ingenious, largely self-executing mechanism aimed at restricting contingent fees to cases in which lawyers really earn them, while promoting early settlements in the many cases in which liability is easy to establish.
Here’s how it would work:
Any plaintiffs lawyer seeking a contingent fee in a personal-injury case would have to notify each defendant of the claim and provide routinely discoverable information about the plaintiff’s injuries, medical costs, and the like. The defendant could then make a settlement offer within 60 days, also accompanied by relevant discoverable information.
If such an early offer were made and accepted, the plaintiffs lawyer-having done little work-would be limited to hourly fees, capped at 10 percent of recoveries up to $100,000 and 5 percent of any additional amount.
What do former CIA official Clair George, the four Los Angeles cops who beat up Rodney King, Clark Clifford, his co-defendant Robert Altman, and E. Robert Wallach have in common?
Each is threatened with multiple criminal trials on essentially the same charges. That may be legal, under various judge-made loopholes in the double-jeopardy clause. But it’s not fair. And it illustrates pervasive prosecutorial disregard for the spirit of the constitutional guarantee.
Prosecutors, armed with the awesome machinery of the criminal law, should be satisfied with one clean shot at a defendant, even if they miss. But more and more we see them forcing their quarry to spend years of their lives and millions of dollars to defend themselves even after winning acquittals, or near-acquittals.
Many in the press seem to see double-jeopardy rules as mere technicalities to be circumvented when they get in the way of a good show. And even the American Civil Liberties Union, understandably loath to let police brutality go unpunished, is waffling on its opposition to successive state and federal prosecutions.
But as the Supreme Court said in 1957, in Green v. United States, successive prosecutions undermine liberty by subjecting the defendant to "a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty."
The potential for oppression by multiple prosecution is all the more apparent in white-collar and other complex cases. With trials grinding on for weeks or months, the million-dollar defense has become a routine necessity, leaving even acquitted defendants in financial ruin after a single trial, let alone two.
Imagine a big, big case in which prosecutors in the proudest U.S. attorney’s office in the land are presented in midtrial with strong evidence of perjury by their star witness.
Imagine the witness then privately admitting to the prosecutors that he has just told a false cover story and offering them a revised story so preposterous that a child could see through it.
Imagine the prosecutors putting the witness back on the stand to tell this story while omitting the details most devastating to its plausibility. Imagine them persuading the rabidly pro-prosecution judge to bar the defense from putting before the jury records that conclusively proved the witness’s perjury. Imagine them vouching for the witness’s truthfulness in their summations.
That is essentially what Assistant U.S. Attorneys Baruch Weiss and Elliott Jacobson of the Southern District of New York did three years ago-with what Weiss claims was high-level approval-to convict E. Robert Wallach (former Attorney General Edwin Meese III’s close friend) on charges involving the Wedtech Corp.
And that is what prompted the U.S. Court of Appeals for the 2nd Circuit last year to overturn Wallach’s conviction as tainted, holding that "the prosecutors may have consciously avoided recognizing the obvious"-that former Wedtech official Anthony Guariglia was lying about his gambling activities.
But it didn’t end there. Now Weiss and Jacobson are pressing with self-righteous zeal to try Wallach again. And despite-or perhaps because of-the questions this case raises about the institutional integrity of his office, U.S. Attorney Otto Obermaier defends the handling of Guariglia as "fully consistent with the high ethical standards I expect" and the reprosecution of Wallach as "the right thing to do."
Judge Malcolm Wilkey, Retired "Special Counsel" c/o Attorney General William Barr Department of Justice Washington, D.C. 20530
Dear Judge Wilkey:
By open letter of April 20, 1992, the Office of Special Journalist notified you of our self-appointment to investigate your investigation of the so-called House Bank.
You are hereby notified that our grand jury (a rubber stamp, like yours) has returned an indictment charging you with four counts of prosecutorial misconduct:
(1) knowingly presenting the House of Representatives with a grotesquely overbroad subpoena for financial records of all 435 members;
(2) smearing the Congress with a false aura of criminality, for the purpose and with the effect of coercing members to abandon their constitutional rights to challenge said subpoena;
(3) betrayal of your own first principles;
(4) false pretense of impartiality, while acting like a ventriloquist’s dummy for your very partisan former law clerk. Attorney General William Barr.
Our investigation continues into whether you may have committed more serious offenses. These may include conspiracy to abuse the Justice Department’s authority to help President Bush and other Republican candidates under the guise of non-partisan criminal investigation.
We have been so impressed (though hardly pleased) by the boldness of your drift-net fishing expedition into House members’ financial affairs that we are using your subpoena as a model. Accordingly, we hereby demand that you supply the Office of Special Journalist, by Thursday, May 7, with:
A. All extant banking, credit-card, investment, gambling, speech-honoraria, and other financial records; all tax returns; and all professional and personal correspondence, telephone records, and medical records, for you since birth, and for your wife since you were married.
Judge Malcolm Wilkey, Retired
c/o Attorney General William Barr
Department of Justice
Washington. D.C. 20530
Dear Judge Wilkey:
I have appointed myself "Special Journalist" to investigate your investigation into whether any crimes were committed by members of the House of Representatives in connection with the so-called House Bank.
This is your formal notice of investigation and first set of interrogatories.
The issue under investigation by the Office of Special Journalist is whether any crimes, abuses of prosecutorial power, or sleazy political stunts have been, are being, or may in the future be committed in connection with your inquiry.
I. Factual Predicate
The factual predicate of the investigation includes allegations that your inquiry is being exploited for partisan political advantage by the Attorney General and/or other members of the Bush Administration.
Anonymous informants no less reliable than the Justice Department witnesses in the Manuel Noriega case have reported to this Office that such a political conspiracy may exist; that its members may include the Attorney General, U.S. Attorney Jay Stephens, and others; and that you may have been its witting or unwitting tool.
Among the allegations are the following:
(1) That public disclosures to date contain not a shred of evidence that any serious prosecutor would consider a reasonable basis for suspecting criminal activity by any House member.
(2) That while a handful could conceivably owe back taxes for any overdrafts large enough to be considered interest-free loans, that’s no crime, as you well know.