Four and a half years ago, I wrote a brief post criticizing Thacher Proffitt’s hypocritical plan to fire their associates while giving under-performing partners the opportunity to “market” and “retool” themselves.

It didn’t work. A year later, the 160-year-old law firm was dead, a month after I had written about how large corporate firms were risky, transient businesses that will slough off the associates at the first sign of trouble. A year later, I came back to the subject of the broken social contract between young lawyers and their law firms, again noting that “firms show no loyalty to their young lawyers and so receive none in return.”

I thus wasn’t the least bit surprised by this recent explanation of how the mighty Dewey LeBoeuf came to its own demise:

A shared sacrifice ethos did not exist at Dewey. Mr. Davis subscribed to a “barbell” compensation system. On one end were the so-called rainmakers with big books of business who were lavished with multimillion-dollar, multiyear guarantees. Dewey’s stars were paid as much as $10 million a year. (Mr. Davis himself earned about $4 million a year, but cut his 2011 salary to $300,000.)

On the other end of the barbell were partners who worked on the court cases and deals brought in by the rainmakers. These partners were paid about $300,000, creating a dynamic where the highest-paid partners were making 30 times more than the most junior ones.

At Skadden, by comparison, the highest-paid partner makes no more than five times the lower-paid ones. One former partner called the arrangement “something closer to feudalism than a true partnership.”

They were all supposed to be partners, but the partner who can schmooze at cocktail parties and on the golf course took home $10 million while the partners who actually “worked on the court cases and deals” — you know, the ones who practiced law — took home $300,000? And they were surprised when the whole thing collapsed? 

Don’t get me wrong: $300,000 a year is a lot of money in the big scheme of things, right around the top 1% of household income in the United States, but put aside the absolute numbers and look at them in relative context. The issue here is the pay differential; we would be having the same discussion if the top partners took home $3.33 million while the working partners took home $100,000. When you’re all important to the team, and you’re all putting in 10+ hour days and weekends, what kind of “partner” pays another “partner” three cents on the dollar?

Young lawyers are often taught the value of the golden rule (I’ve recommend the same myself): to treat others how you would want to be treated when considering everything from how to deal with potential clients to how to write memos to the boss (i.e., you wouldn’t want to read a sloppy or poorly researched memo, so don’t write one). But it seems the older and well-established lawyers at Dewey didn’t follow that rule. If the leadership at Dewey had spent ten minutes thinking about the wisdom of paying the attorneys actually doing the work more than 3% of what they paid the supposed rainmakers, they would have realized how unsustainable their business plan really was.

It’s not just a matter of fairness. It’s a matter of motivation. A law firm associate or junior partner is in it partly for the money and partly to develop their career for the future; if you make it clear to them that you don’t value their work, they’ll make sure their work isn’t worth much while they collect a check and plan their escape.

Now Dewey LeBoeuf, too, is consigned to the trash heap of historic law firms. There’s a lesson to be learned here, but it’s not a lesson about big law firm management. Indeed, if you’re in the upper echelon at a huge large firm and want to make a ton of money, set the firm up exactly like Dewey LeBoeuf, a “barbell” with overpaid rainmakers and executive committee members on one side and relatively underpaid rubes who actually practice law on the other. If you’re on the right side of that barbell, you’ll make a ton of money until the firm implodes, when you can take your book of business to the next shortsighted firm that thinks it’s worth paying rainmakers two inches of water from the well to get one inch of rain.

No, the lesson is for associates and junior partners. Forget what the firm told you during your time as a summer associate about the value of teamwork and the partnership track and all that nonsense: until proven otherwise, assume you are joining an entity with the same business model as a drug gang, an “extremely competitive field in which, if you reach the top, you are paid a fortune (to say nothing of the attendant glory and power),” but one where there’s far more competition — and attrition — than there are available spots. It’s a tournament, not a team.

Unlike the street level crack dealer, as an associate or junior partner you won’t have to live with your mother. You’ll often be paid quite handsomely, but you’ll also pay a different price  — your drudgery work for the firm will hamper your ability to develop business, magnifying the risk of working there and making the situation far more dire when the firm you’ve spent your entire career at suddenly implodes because the rainmakers feel it’s time to jump again.

Before you sign onto one of those places, ask where the money goes. You don’t need to know how much each partner makes, but if they tell you the money isn’t any of your business, it’s because they plan on never letting you have any of it.

If you’ve been following the press on Pennsylvania’s new voter identification law, then you’ve likely already heard about the plaintiffs. Joyce Block, an 89-year-old woman, who committed the ‘crime’ of getting a marriage license in Hebrew and then registering to vote in her married name; 84-year-old Nadine Marsh, born near Pittsburgh and has lived her whole life in Pennsylvania, but whose birth certificate can’t be found; and, the worst of the worst, the ringleader, 93-year-old Viviette Applewhite, who worked as a welder in World War II, who marched with Martin Luther King, and who has 18 grandchildren, great-grandchildren, and great-great grandchildren, and who for no good reason has been denied photo identification by the Commonwealth of Pennsylvania.

These are some of the people on whose behalf a group of public interest organizations, including the American Civil Liberties Union (ACLU) of Pennsylvania, the Public Interest Law Center of Philadelphia (PILCOP), and the Advancement Project, and the Washington, D.C. based law firm Arnold & Porter have filed a lawsuit in the Commonwealth Court of Pennsylvania seeking to have Pennsylvania’s Photo ID voting law voided. The law, one of Governor Tom Corbett’s signature bills, is one of the strictest “voter ID” laws in the country, forbidding all kinds of identification — from utility bills, to Veteran IDs, to student IDs without an expiration date, out of state driver’s licenses — in favor of only a very limited list of acceptable identification, including driver’s licenses, state issued photo identification, student IDs issued by Pennsylvania schools with expiration dates (only a handful of schools have them) and passports. The Committee of Seventy has some details on what works. Expired passports, military dependent, or government employment IDs? They’re all obviously you, expired or not, but none of them work under PA’s new voter ID law.

Supporters of the law, which will cause havoc at the polls for legitimate voters by adding several steps to the voting process, haven’t been able to provide any examples of anyone actually voting more than once (or voting under the wrong name) in Pennsylvania, but the General Assembly and Governor Corbett figure the confusion created by the law and its onerous requirements would deny the vote to college students, the impoverished, and the elderly, so they fought hard for it while slashing funding for Child Care Works, the T.E.A.C.H, scholarship program, Pennsylvania Pre-K Counts and the Head Start Supplemental Assistance Program.

But it’s a truism of American politics that, for every bad idea, there’s a half dozen people who want to take it even further, and the dishonor this time falls to state Rep. Thomas Killion (R., Chester) and several other individuals who, represented by Buchanan, Ingersoll & Rooney, filed a petition in Commonwealth Court to intervene in support of the new law. 

The Philadelphia Inquirer reported it, and Free and Equal PA has a copy of the Petition. If that sort of claim sounds strange to you, it’s because it is strange: defending the laws is the duty and prerogative of the Executive branch, not private citizens. So how do they get around that? The Petition claims:

The Petitioners in this case allege that they are challenging the Voter Identification Law to protect their fundamental right to vote.  Intervenors seek to participate in this litigation to protect that same right. . . . The Commonwealth’s voter identification requirements directly protect the voter Intervenors’  fundamental right to vote by helping to safeguard against the submission of fraudulent ballots or ballots from ineligible voters, thereby preventing the voter Intervenor’s legitimately cast votes from improperly being diluted, canceled out, and effectively nullified.

Of course, we all have an interest in our votes not being “diluted” by fraudulent votes (of which, as I said above, there are no known examples), but that doesn’t mean that you, me, and everyone in the Commonwealth of Pennsylvania can all intervene in the Applewhite case, or intervene every time a taxpayer disputes their bill, or a landowner opposes an eminent domain proceeding, or any other ordinary challenge of governmental action.

The Intervention Petition doesn’t make clear exactly what they want — the Petitioners say they want to raise “defenses” on behalf of the law, and they obviously don’t have standing to come in and raise defenses for the Commonwealth, so I have to presume they intend to bring a declaratory judgment action seeking to prove the constitutionality of the law. But there’s an elephant in the room: Whitehall Township v. Oswald, 400 Pa. 65, 161 A.2d 348 (1960).

In Whitehall Township, the Pennsylvania Supreme Court stated quite plainly that nobody, not even a township, has standing to bring a declaratory judgment claim seeking an order confirming that a law is constitutional:

Would anyone contend that, by virtue of the above quoted statutory provision, the legislature conferred upon the Commonwealth a right to resort to a declaratory judgment proceeding to have an act of assembly construed or validated? To what end could such a procedure be designed? For what purpose would an ordaining public body subject to judicial scrutiny its own legislative enactments which are presumptively constitutional as a matter of law? And, it has been expressly recognized that “The same presumption of constitutional validity that attends an act of the legislature is equally applicable to municipal ordinances whether they be enacted by the council of a city, town or borough or by the supervisors of a township”: Bilbar Construction Company v. Easttown Township Board of Adjustment, 393 Pa. 62, 71, 141 A. 2d 851. So long as an ordinance is unquestioned, its constitutional validity remains established. The plaintiff township was, therefore, without standing to invoke the jurisdiction of the court below for the purpose of having the constitutionality of its trailer ordinance adjudicated in a declaratory judgment proceeding.

Rep. Killion’s Petition is thus frivolous on its face. You can’t sue to prove a law constitutional.

Shockingly, this isn’t the first time in recent memory that conservative activists have tried to sue in Pennsylvania courts to deny someone else’s rights. Back in 2004, two men in a committed relationship tried to get a marriage license in Bucks County and were denied — and were then inexplicably and inexcusably sued by a dozen representatives and a company named (I’m not kidding) Creative Pultrusions. The result? The Bucks County Court of Common Pleas dismissed them for lack of standing, citing Whitehall Township.

All of which is to say that the Killion Petition is nothing more than a crass political stunt, a deliberate waste of taxpayer-funded court time filed for the sole purpose of delaying the Applewhite case. It’s exactly the sort of abusive conduct the tort of Abuse of Process is intended to prohibit and make compensable.

It would all be funny and merely embarrassing if it wasn’t so insidious and spiteful: what lawyer wakes up, brushes their teeth, heads into the office, grabs a cup of coffee and cheerfully says, “today I hope to deny someone their right to vote?” Apparently that’s how they practice law at Buchanan, Ingersoll & Rooney.

As regular readers know, I’ve spent the last two weeks trying a case with one of our firm’s of-counsel, Francis Malofiy. Last Friday, after 15 hours of deliberations, the jury returned a verdict in favor of our client on all six questions — relating to the nature of the agreement, damages, whether our client breached his obligations, whether defendants would get a set-off, and when the statute of limitations began to run — and awarded him $4.17 million in damages. The vote was 10–2, which is good enough under Pennsylvania law. The judge kindly let the attorneys talk with the jurors (assuming they wanted to talk, of course), so I went back to figure out what happened with those two holdouts.

Post-verdict discussions with jurors often reveal a handful of surprising and insightful comments that sometimes make me re-think how I tried the case. Jurors tend to take their duties very seriously, and so lawyers can usually jump right into detailed questions about the facts and what they thought about various issues. We were fortunate to have a number of invigorated and candid jurors who were happy to talk to us about the case.

In our case — in which our client alleged that he was frozen out of his ownership interest in an industrial business after spending two years building the business’ physical plant — there were a lot of issues, from the disclosure requirements for SBA Loans to the right type of saw for a particular cutting machine, but one issue loomed large: the lack of a written agreement. We had documents (including one signed by all the parties) supporting our claims, they had documents (signed by them, but not our client; we alleged they were created after the lawsuit was filed) supporting their claims, but there was no single document that purported to be the agreement among the parties. It was mostly our client’s word against the defendants’ word, with each side portraying radically different circumstances surrounding the agreement, chiefly differences over the work our client did in those two years. 

As a legal matter, there’s nothing wrong with a plaintiff alleging an oral contract: an oral contract is just as binding and enforceable as a written contract, and there’s no special limitations on proving such an oral agreement. Graham v. Jonnel Ent., Inc., et al., 435 Pa. 396 (1969)(“a jury may find an oral contract on a mere preponderance of the evidence”). Similarly, there’s nothing wrong with proving a case primarily, even entirely, through circumstantial evidence, such as the witnesses we brought in to say that our client was referred to as an owner, that he was a signer on the corporate bank account, et cetera. See Pennsylvania Suggested Standard Civil Jury Instructions 4.00 (“You may decide the facts in this case based upon circumstantial evidence alone.”).

Whatever the law says, however, presenting oral contracts and circumstantial evidence to juries is always a challenge. When we talked to the jury, we learned that the two jurors who felt we hadn’t met our burden, and then two more jurors who had kept the damages award lower (the remaining eight jurors wanted to award our client nearly $7 million), all had one thing in common: they were under 30 years old, and they expected more of a paper trail for our client’s claims. Said one, “I felt your client was negligent in not doing more to protect himself with a written agreement.” It’s like the old doctrine of contributory negligence from Lochner Era tort cases brought back to life for contract cases.

In many ways, the younger jurors’ demands are understandable, it’s the “CSI Effect” (discussed more here in the context of scientific evidence) and the ubiquity of email and text messaging coming into the courtroom as expectations about evidence. Our client, though, isn’t the type to email or to text. He builds industrial shops, work that, like most industrial and heavy machinery work, can’t be done by email. It’s all done onsite, while wearing hard hats, with a handshake. That’s how he dealt with everyone, including the defendants.

The older jurors, those over 30, and particularly those over 40, had no problem accepting that a multi-million-dollar business deal could be reached and executed over the course of years with nothing more than a handshake. Some of the older jurors had friends or relatives who had gone into business with others on similar terms: I’ll do this, you’ll do that, let’s shake on it and get to work. Anyone who has run a business has inevitably entered into an agreement without a single document reflecting their understanding. I don’t trust my bank or my phone company as far as I could throw them, and so I demand everything be in writing; when it comes to building a business, though, there’s necessarily trust among the parties — would you go into business with someone you didn’t trust? — and so there’s the tendency to put aside formalities like a written contract.

I’ve lost count of the number of potential clients I’ve talked to who needed a lawyer because they made the mistake of doing business on a handshake and got burned for it. It’s how business works in practice, and the common law has recognized that for centuries. But there’s a big difference between what the law says and how jurors will apply it.

The lingering question is whether the younger jurors’ reluctance to believe in oral agreements (and the one juror’s belief our client should be penalized for the lack of documents in spite of their own belief our client was right) is a genuine generational shift [update: that's what Scott Greenfield thinks] or is merely a display of youth that will change once they have more experience in the business world. One of my deeply-held beliefs about juries is that there is no substitute for juror experience, and that no demographic feature will do as much to inform their decision as their own experiences. Thus, personally, I think the young jurors’ lack of experience had more to do with their views than any generational shift.

To the extent people in their 20s have had business experience (outside of being a cashier or the like), it’s normally as interns at large corporations, where internal accounting and legal processes force deals to be done almost entirely on paper, rather than in the small business world, where entrepreneurs routinely make promises to one another and then act in a manner consistent with those promises, without ever actually exchanging a formal document showing what “the deal” really was.

It’s no secret that patients and their lawyers have a lot of difficulty finding physicians to serve as expert witnesses in medical malpractice cases. A large fraction of doctors refuse to ever testify in a patient’s favor, regardless of how negligent, reckless, or reprehensible the care provided by the defendant-doctor was. Among the doctors who do testify on behalf of patients, most will only testify against doctors in other jurisdictions, adding difficulties in communication and scheduling as well as travel costs. It also makes it harder for plaintiff’s lawyers to find qualified, credible experts, because we don’t know them by reputation the same way we know local doctors. Just this week MedScape had a column bragging about how “tort reform” expert witness laws make malpractice cases harder and more expensive, and thus thwart many patients with valid claims from even having their day in court, much less recovering compensation.

For defense lawyers, the process of finding an expert is quite easy: they call up their insurer or their local hospital and are immediately provided with a willing local expert. The code of silence around the medical profession is alive and well.

There are, however, some notable — and laudable — exceptions, and in Philadelphia one of those exceptions was on the receiving end of some particularly appalling conduct by a defense lawyer for doing nothing more than preparing to tell the truth in a courtroom: 

A Philadelphia judge said that the act of a defense attorney sending a letter to the employer of a medical malpractice plaintiffs expert is sanctionable.

Philadelphia Court of Common Pleas Judge Jacqueline F. Allen said in an order Monday that upon consideration of the plaintiff’s motion for sanctions against defense counsel Nancy Raynor “for violation of ethical rules, improper conduct and obstruction of justice,” she was granting the motion in part by ordering Raynor to refrain from contacting the plaintiff’s experts or their employers. …

In Sutch v. Roxborough Memorial Hospital, the plaintiff’s allegation is that Dr. Jeffrey Geller of Roxborough Memorial Hospital failed to obtain diagnostic testing that could have resulted in the timely diagnosis of Rosalind Wilson’s ultimately fatal lung cancer. Raynor is Geller’s counsel.

I haven’t studied the papers, but from what I can tell, the what happened in Sutch case is tragically common, and the expert witness’ opinion was not particularly controversial. The plaintiff presented to the emergency department with various airway-related complaints, a chest x-ray was ordered, but the results — showing lung cancer — either weren’t ever read or weren’t ever relayed to the patient’s physician. 18 months later, the patient was finally diagnosed with lung cancer. It’s thus a standard failure to diagnose cancer case, with some hospital “corporate negligence” (a little bit more about those in this post) elements as well.

Somehow, the plaintiff’s lawyer was able to get a local emergency medicine physician to testify on their behalf, prompting the defense lawyer to write to the expert’s employer, the Hospital of the University of Pennsylvania (HUP):

The case involves an acknowledged failure to relay concerning X-ray findings to the patient’s physicians and the patient herself, resulting in a lengthy delay in the diagnosis of her cancer. … Nevertheless, the plaintiff has retained one of Penn’s emergency room physicians … who has offered the untenable opinion that because Dr. Geller ordered the test, it was his responsibility to follow through on obtaining the results and advising the patient of them.

Dr. Porges has clearly overlooked the well-established concept of hand-off to an accepting inpatient team and I thought you might want to know that, if this is her position and plaintiff’s attorneys become aware of it, it could expose the Hospital of the University of Pennsylvania to significant liability.

Before we talk about that, let’s talk about the excuse given by the defense lawyer:

… Raynor said that it is common practice for medical malpractice defense lawyers to be in touch with counsel for local health care institutions about any of their affiliated physicians who would testify as experts in local malpractice cases.

… Raynor argued that if Porges was willing to undergo cross-examination in a trial, she should be able to defend her opinion to her institution.

So the two excuses are (1) everybody does it and (2) we’re just stimulating a fair debate within the medical community.

Rubbish. The letter was little more than an attempt to intimidate a local doctor for daring to tell the truth to a local jury. If, as the defense lawyer insists, the opinion of the plaintiff’s expert physician is so “untenable,” then there is no need to threaten the expert’s standing at her job. It should be easy for the defense lawyer to find their own qualified expert to testify on their client’s behalf, and for that defense lawyer to prepare a withering cross-examination. Lawyers who feel confident about their cases don’t feel the need to resort to dirty tricks.

The medical malpractice system is dependent upon qualified, practicing physicians agreeing to provide their honest opinions in court. If we permit either side to intimidate those experts away, the whole system falls apart. It’s sanctionable, and if a large portion of the defense bar has been engaging in this sort of conduct on a systematic basis, then it’s time for a far more significant level of court involvement.

Thankfully, Judge Allen found the conduct to be sanctionable, ordered the defense lawyer to stop contacting the plaintiff’s expert’s employer, and stayed the full sanctions order pending the outcome of the trial to determine any potential prejudice.

Let that be a lesson to any other defense lawyers expecting to intimidate experts instead of litigating cases on their merits.

Yesterday the family of firefighter Daniel Sweeney, who along with Lt. Robert P. Neary died in a fire at the derelict Buck Hosiery warehouse at the corner of Jasper and York in Kensington, filed suit against the owners of the building, Yechiel Lichtenstein and Nahman Lichtenstein, and their various companies involved.

Anyone who lives around Philadelphia is undoubtedly familiar with the story, which has generated a considerable amount of outrage, but I’d be remiss if I didn’t point you to Hidden City Daily’s coverage. Note that the first story there about the condition of the warehouse, “Passing the Buck,” was originally posted ten days before the fire, and it quotes Jeff Carpineta, president of the East Kensington Neighborhood Association, worrying about the dangers posed by the building and the possibility of a fire. The building had racked up considerable tax liens, and the Lichtensteins themselves couldn’t even identify who was responsible for monitoring the property.

To put it another way, no one was surprised by the fire, and the owners knew of the buildings poor state and frequently break-ins, but hadn’t done anything about it. If I were part of the Sweeney family, I’d want justice, too.

In most states, the Sweeney’s lawsuit would be promptly dismissed. The ”firefighter’s rule” (sometimes called the “police officer’s rule” or the “rescue rule”) “bars an injured public-safety official from maintaining a negligence action against a tortfeasor whose alleged malfeasance is responsible for bringing the officer to the scene of a fire, crime, or other emergency where the officer is injured.” Higgins v. Rhode Island Hospital, 35 A.3d 919 (R.I. 2012)(dismissing lawsuit by firefighter). That’s the majority rule across the United States. See, e.g., Babes Showclub, Jaba, Inc. v. Lair, 918 NE 2d 308, 313 footnote 3 (Ind. 2009)(recounting the many ways firefighters, police officers, paramedics and emergency medical technicians have not been able to recover compensation); but see Christensen v. Murphy, 296 Or. 610, 678 P.2d 1210, 1218 (1984) (Oregon abolishes the fireman’s rule at common law).

In the tri-state area, New Jersey used to recognize the firefighter’s rule until 1993, when it was abrogated by statute. See Ruiz v. Mero, 189 N.J. 525, 917 A.2d 239, 247 (2007). For Delaware, as far as I can tell, only one trial court has ever addressed the issue, and it applied the firefighter’s rule. Carpenter v. O’Day, 562 A.2d 595 (Del. Sup. Ct., 1988).

In Pennsylvania, the courts have taken a nuanced approach, applying the rescue rule in some circumstances but not others. 

Back in 1995, the Pennsylvania Superior Court explicitly affirmed that, when it comes to landowners, firefighters are “licensees,” and so are owed the same duty of care as anyone else who is permitted to be on the property:

The “fireman’s rule”, which provides that a police officer or fire fighter who enters upon the land of another in connection with official duties cannot recover from the possessor of land for subsequent injuries, has not been adopted in Pennsylvania. Mull v. Kerstetter, 373 Pa.Super. 228, 231, 540 A.2d 951, 952 (1988). Accord: Drake v. Fenton, 237 Pa. 8, 85 A. 14 (1912) (fireman who fell down unprotected elevator shaft could sue possessor of property for his injuries). A police officer who enters upon another’s land in his or her official capacity and in response to a call for assistance is generally considered a licensee. See: Mull v. Kerstetter, supra, 373 Pa.Super. at 233 n. 3, 540 A.2d at 953 n. 3. In such situations, the land owner’s duty is to warn the licensee of dangerous hidden conditions. Mull v. Kerstetter, supra, 373 Pa.Super. at 233-234, 540 A.2d at 953; Carpenter v. Penn Central Transportation Co., 269 Pa.Super. 9, 13, 409 A.2d 37, 39 (1979); Cutler v. Dushoff, 192 Pa.Super. 37, 42, 159 A.2d 524, 526 (1960). Even if a police officer enters another’s land as an invitee, moreover, the possessor of the land does not become an insurer of the officer’s safety. Cf. Winkler v. Seven Springs Farm, Inc., 240 Pa.Super. 641, 646, 359 A.2d 440, 442 (1976). The possessor’s duty is only to use reasonable care to protect his or her invitees from unknown or nonobvious dangers. Id. at 645-646, 359 A.2d at 442.

Holpp v. Fez, Inc., 656 A.2d 147 (Pa. Sup. Ct. 1995).

But there’s a catch: landowners don’t have too many duties to licensees other than the duty to warn them of hazards, and first responders are generally aware of the hazards on the property. The plaintiff in Holpp, a police officer who was injured in a fight while responding to a complaint of disorderly conduct at a banquet hall on New Year’s Eve (read a bit more about Pennsylvania dram shop law in this post or this post), had his complaint dismissed. The Court held that he “was aware of the potential for violence among patrons who had been consuming alcoholic beverages, and was conscious of the attendant risks,” and so the banquet hall didn’t breach its duties as the landowner because it neither failed to warn him of the danger of the disorderly people nor permitted a dangerous condition on the property.

That’s likely the first defense the Lichtensteins’ lawyers will raise: under Pennsylvania law, Sweeney was a licensee, and he knew he was going there to fight a five-alarm fire. As such, the Lichtensteins had no further duty to warn him of anything.

But that’s not the end of the story for the Sweeney family. Some clues for their likely response can be found in how other courts have interpreted the firefighter’s rule. As the Indiana Supreme Court said in the Babes Showclub case:

In summary, the fireman’s rule allows no claim by a professional emergency responder for the negligence that creates the emergency to which he or she responds. Professionals, whose occupations by nature expose them to particular risks, may not hold another negligent for creating the situation to which they respond in their professional capacity. However, the emergency responder remains free to sue for damages if an injury is caused by negligent or intentional tortious conduct separate and apart from the conduct that contributed to the emergency.

Babes Showclub, 918 NE 2d at 314. That “separate and apart” language is the key.

In other words, if you negligently start a fire, and a firefighter is injured as a result of that fire, the firefighter ordinarily can’t sue you because you negligently started the fire. However, if you negligently start a fire, and then the firefighter is injured by something else negligent you did, then the firefighter can sue you for that.

Which is where I think that Sweeney’s family will likely prevail. Sweeney didn’t simply die in the fire at the warehouse, he (and several other firefighters) were in an adjacent building when one of the warehouse’s walls collapsed and fell through the roof. His death (and their injuries) were thus — at least in my opinion — caused by the landowner’s negligence separate from the negligence that allowed the fire to start and thus brought the firefighters to the scene.

In one sense, once a fire starts, every harm that happens after that is “caused” by the fire. But the collapse of the wall likely wasn’t solely the result of the fire, but was also the result of the poor condition of the wall itself. (Note to law students: pull out your copy of Milwaukee & St. Paul R. Co. v. Kellogg, 94 U.S. 469 (1877) and consider how its proximate causation analysis would apply here.) We don’t yet know the cause of the fire at the Buck Hosiery warehouse — Arson? Trespassers leaving a fire unattended? — but it seems that, legally, the cause of the fire was separate and apart from the cause of wall collapse.

To put it another way, Sweeney didn’t knowingly charge into a dangerous fire and then die in the inferno. Instead, he thought he was in a comparatively safe area when one of the walls from the warehouse unexpectedly collapsed. Sweeney’s family might be precluded (either by the firefighter’s rule or, more likely, the limited duties a landowner has to a licensee) from suing the Buck Hosiery’s owners from allowing a fire to start, but they’re not precluded from suing them for failing to maintain the walls or at least giving the firefighters some warning.

Of course, those issues raise a whole host of other issues, like whether the adjacent building’s walls and roof were properly built and maintained, but those are likely issues for a jury, rather than a complete prohibition on a lawsuit, the way the fireman’s rule works.

Yesterday afternoon, the defendants in my trial dumped a twenty-one page brief on me, requesting the Court preclude our business valuation expert from testifying, arguing that we had “a bogus valuation expert” whose “report is a sham” describing a “topsy-turvy world” in support of “Plaintiff’s belief that he can obtain a windfall through a whimsical and inflated valuation of this business” — and that was all just in the introduction.

It seems somebody needs to read #4 on my advice for litigators.

Naturally, within less than a day I filed a detailed response, explaining why our expert was fine, and why the appropriate valuation of a minority shareholder interest in a company where the shares aren’t regularly traded is “the shareholder’s proportionate interest in the company as a whole valued as a going concern according to accepted business practices.” As a service to any other plaintiff’s lawyers out there in a similar case, I leave you with an edited excerpt from my brief.

In Pennsylvania, business damages ‘need not be proved with mathematical certainty, but only with reasonable certainty, and evidence of damages may consist of probabilities and inferences.’ Hawthorne v. Dravo Corp., Keystone Division, 352 Pa. Super. 359, 376, 508 A.2d 298, 307 (1986), appeal denied, 514 Pa. 617, 521 A.2d 932 (1987); Delahanty v. First Pennsylvania Bank N.A., 318 Pa. Super. 90, 119, 464 A.2d 1243, 1257 (1983). ‘Thus, the law does not demand that the estimation of damages be completely free of all elements of speculation[,]‘ Delahanty, 318 Pa. Super. at 118, 464 A.2d at 1257, and the fact-finder ‘may use a measure of speculation in estimating damages.’ Penn Electric Supply Co. Inc. v. Billows Electric Supply Co. Inc., 364 Pa. Super. 544, 549, 528 A.2d 643, 645 (1987). Any doubt or uncertainty as to the precise amount of damages is construed against the breaching party or wrongdoer. Atacs Corp. v. Trans World Communications Inc., 155 F.3d 659, 669 (3d Cir. 1998) (citing Delahanty and applying Pennsylvania law).

Pennsylvania law plainly provides that shareholders forced or frozen out of their interests are entitled to that “fair value” of their interests. This “fair value” approach is consistent with breach of fiduciary duty precedent (i.e., Viener v. Jacobs, 2003 PA Super 324, 834 A.2d 546 (Pa. Super. Ct. 2003)) and with the dissenters’ rights provisions of the Pennsylvania Business Corporations Law (“BCL”) that plainly entitles dissenting shareholders to “payment the fair value of [their] shares.” 15 Pa.C.S. § 1571–1580. The BCL includes similar provisions for limited partnerships and for LLCs.

Across the United States, the overwhelming majority rule regarding the “fair value” of minority interests in private companies derives from this analysis by the Delaware Supreme Court: 

 [T]he [trial court’s] task here was to value what has been taken from the shareholder: viz. his proportionate interest in a going concern. To this end the company must be first valued as an operating entity by application of traditional value factors, weighted as required, but without regard to post-merger events or other possible business combinations. The dissenting shareholder’s proportionate interest is determined only after the company as an entity has been valued. In that determination the [trial court] is not required to apply further weighting factors at the shareholder level, such as discounts to minority shares for asserted lack of marketability. …

The application of a discount to a minority shareholder is contrary to the requirement that the company be viewed as a ‘going concern.‘ Cavalier’s argument, that the only way Harnett would have received value for his 1.5% stock interest was to sell his stock, subject to market treatment of its minority status, misperceives the nature of the appraisal remedy. Where there is no objective market data available, the appraisal process is not intended to reconstruct a pro forma sale but to assume that the shareholder was willing to maintain his investment position, however slight, had the merger not occurred. Discounting individual share holdings injects into the appraisal process speculation on the various factors which may dictate the marketability of minority shareholdings. More important, to fail to accord to a minority shareholder the full proportionate value of his shares imposes a penalty for lack of control, and unfairly enriches the majority shareholders who may reap a windfall from the appraisal process by cashing out a dissenting shareholder, a clearly undesirable result.

Cavalier Oil Corp. v. Harnett, 564 A.2d 1137, 1144–1145 (Del. 1989)(citations omitted, emphasis added). Since Cavalier Oil, “the vast majority of states to consider the appraisal remedy for ousted minority shareholders have likewise held that ‘fair value’ in this context means the shareholder’s proportionate interest in the company as a whole valued as a going concern according to accepted business practices.” Shawnee Telecom Res., Inc. v. Brown, 354 S.W.3d 542, 555 (Ky. 2011). In this case, such an analysis would be quite simple: Plaintiff is entitled to one-third of the value of the business as a going concern. The jury should be given testimony on the ongoing value of the business as a whole and then be asked to provide that number in their verdict, with the instruction that Plaintiff’s damages will be one-third of that amount.

Further, the value of the company of a whole obviously includes no discounts for “minority” interests, and so, “Since Cavalier Oil, the split in authority has narrowed, with most courts following this seminal case. The vast majority of courts have determined that a minority discount should not be applied to determine fair value of a minority shareholder’s interest.” Brown v. Arp & Hammond Hardware Co., 2006 WY 107, 141 P.3d 673, 8 (Wyo. 2006).

No Pennsylvania court has directly opined on Cavalier Oil, although prior to Cavalier Oil Pennsylvania appellate courts had frequently relied on the “Supreme Court of Delaware, known for its expertise in these matters.” In re Glosser Bros., 382 Pa. Super. 177, 186, 555 A.2d 129, 134 (1989). In the past the Pennsylvania Superior Court has expressly looked first to the Delaware Supreme Court where they “[did] not find any Pennsylvania cases addressing this situation” in corporate law. Barter v. Diodoardo, 2001 PA Super 105, 771 A.2d 835 (Pa. Super. Ct. 2001); but see First Union Nat’l Bank v. Quality Carriers Inc., 48 Pa. D. & C.4th 1  (Philadelphia 2000)(Sheppard, J., “it is important to note that no Pennsylvania case specifically states that Delaware corporate law is accorded special weight.”).

Lacking any precedent one way or the other in Pennsylvania, Plaintiff urges this Court to look to Delaware for this issue of corporate law and to look to New Jersey, which is also in accord. Lawson Mardon Wheaton v. Smith, 160 N.J. 383, 402, 734 A.2d 738, 749 (1999)(“We find most persuasive those cases holding that marketability discounts should not be applied in determining the ‘fair value’ of a dissenting shareholder’s share in an appraisal action.”). Legal scholars, too, have concluded that the Cavalier Oil approach is the appropriate approach for valuing minority shareholder interests. See, e.g., Moll, Douglas K., Shareholder Oppression & ‘Fair Value’: Of Discounts, Dates, and Dastardly Deeds in the Close Corporation, 54 Duke L.J. 293 (“This Article builds a case for defining fair value as enterprise value in the shareholder oppression context. The Article argues, in other words, that the buyout remedy should provide an oppressed minority investor with his pro rata share of the company’s overall value, with no reductions (or ‘discounts’) for the lack of control or liquidity associated with the minority’s shares.”)

I’m on trial this week (a dispute over the ownership of a business), so posting will obviously be light for the next two weeks. But I couldn’t let this quote from an article about Samuel L. Jackson slip by:

William Friedkin, who directed Jackson in “Rules of Engagement,” told me: “Sam is a director’s dream. Some actors hope to find their character during shooting. He knows his character before shooting. Sam’s old-school. I just got out of his way. I never did more than two takes with Sam.” Friedkin said that some people say Jackson works too much, but he dismissed actors who wait around for “Hamlet.” “You take what you can get,” he said, “to keep your engine tuned. An artist doesn’t burn out with age because he works too much. Working hones his craft.”

So it is with trial lawyers. You need to get back into the courtroom to keep your engine tuned, to hone your craft.

Some parts of trial are like riding a bike. You won’t forget how to tell if a statement is hearsay (assuming you knew how to tell in the first place).

But situations change quickly in a courtroom and a lawyer’s judgment tends to dull if not exercised frequently. Even in what seems like the most routine witness, there will always be adverse rulings from the judge or unexpected statements from a witness, and there’s a particular skill in figuring out what to do with that change immediately, a skill that simply can’t be taught or practiced. You just have to do it, and do it often.

Two weeks ago, NBC’s Rock Center aired an investigative report questioning the safety of the Common Fire Control of over 20 million Remington firearms, including the best-selling Sportsman 12 shotgun, the 870 shotgun, and the 742 semi-automatic rifle. About two years ago, CNBC did a similar report on the Remington Model 700 bolt-action rifle. Odds are, if you’ve ever been out with anyone shooting a rifle or a pump shotgun, you’ve been around one of these. If you’re in law enforcement, then you’ve been around them on a weekly basis.

And there’s a big problem with them. A thousands of complaints and over one hundred thirty-five lawsuits problem. These firearms go off without the trigger being pressed, even when the safety is on.

As a plaintiff’s lawyer, seeing a news story about problems with Remington gun misfires is like seeing a story on the dangers of old tires: it’s not news to us, it’s something we talk about frequently, and litigate often as well. The trial lawyers association has a whole litigation group dedicated to firearms and ammunition dangers.

I’m not as familiar with the shotgun issues, but Remington Model 700 misfire lawsuits are so common that lawyers can practically cut-and-paste the relevant pleadings and briefs. (If you’re a lawyer representing a Remington malfunction victim, be sure you read this brief on similar incidents from the Montes case.)

The problem is simple, but takes a minute to explain. The Model 700 (and its variants, the ADL, BDL, CDL, and Safari, as well as the newer Model 710 and Model 770) is based on Merle H. Walker’s “firing mechanism” patent 2,514,981, patented in 1950. In the design, the trigger the operator sees isn’t really the trigger — the real trigger is a piece called the “connector” that’s inside the gun and held against the trigger by a spring.

As Jack Belk explains,

The Remington-Walker’s ‘trigger’ is not the piece you put your finger on. The part that acts as the trigger under the sear is actually the connector which is ‘flexibly connected’ to the trigger body. The trigger return spring pushes the connector which then pushes the trigger body into position under the sear. The connector offers a complication that is not needed in the trigger. The addition of the connector only adds to the complexity of what is a very simple and amazingly reliable mechanism when its parts are limited to only what’s necessary to do the job.

Is a mechanism that’s called upon to return one lever with one spring more reliable than a spring pushing on an intermediary part and then the lever? Of course it is. The fewer parts, the simpler the mechanism, especially when dealing with simple levers. With the re-positioning of the trigger-connector required after each shot, in the presence of recoil and powder residue and debris, the answer becomes even more certain. More parts means more complications without benefits.

Those “complications” cause a couple problems in the actual use of the Remington Model 700, which Remington itself broke down into Fire on Bolt Closure, Fire on Bolt Opening, Fire on Safe Release, and Jar Off. “Jar Off” is a standard industry term for a firearm discharging when struck or dropped. The rest mean what you think they mean: someone was opening or closing the bolt, or simply releasing the safety when, boom, the gun went off. 

The problem is by no means new; back in 1968, Consumer Reports reviewed the Model 700, noting a particular problem:

The sixth-ranked rifle, the Remington 700, exhibited a potentially dangerous flaw as first tested. There was so little clearance between the trigger and the trigger guard that when the trigger was pulled with the safety on (something you or a friend might do when sighting down the rifle or trying it for feel), the trigger sometimes failed to return to its forward position. And with the trigger in the back position, the rifle would fire without warning the next time the safety was moved to the fire position. The malfunction persisted for more than 100 firings before the trigger wore in and performed normally. An unwary buyer might have caused a serious accident by then.

Yikes! That’s the “Fire on Safe Release” mentioned above. Unfortunately, these days the problem is often worse over time, not better, because over time dirt and other debris can accumulate between the connector and the trigger, increasing the likelihood of an unintended discharge.

The end result is a defective product that likely injures scores of people ever year, and which has even produced important court opinions like Lewy v. Remington Arms Co., Inc., 836 F. 2d 1104 (8th Cir. 1988). Consider this paragraph from the Lewy opinion:

We hold that there was sufficient evidence from which the jury could find that Remington knew the M700 was dangerous. The following evidence was before the jury: complaints from customers and gunsmiths that the Model 700 would fire upon release of safety, some of these complaints dating back as far as the early 1970s; Remington’s own internal documents show that complaints were received more than two years before the Lewy rifle was produced; Remington created a Product Safety Subcommittee to evaluate M700 complaints and on two occasions decided against recalling the M700; and Remington responded to every customer complaint with a form letter that stated that they were unable to duplicate the problem, that the customer must have inadvertently pulled the trigger and that Remington could not assume liability for the discharge.

Lewy v. Remington Arms Co., 836 F.2d 1104, 1106–1107 (8th Cir. 1988).

The Lewy case, in which a federal appellate court affirmed a punitive damages award against Remington for the problems with the M700, was over twenty years ago, and yet the M700, and now the M710 and M770, are still out there, still injuring and killing people, still prompting new lawsuits every year.

There’s a couple points we can learn from this experience.

First, as the NBC report mentions, unlike every other major consumer product — automobiles, prescription drugs, home appliances, etc — no government agency has the power to order a manufacturer to initiate a recall. This isn’t a Second Amendment issue, it’s a manufacturers versus consumers issue. I’m not surprised to see gun legislation treated completely differently from other laws, but it is indefensible that the government can’t even warn consumers about the dangers posed by a particularly dangerous firearm, much less force the manufacturer to use a different firing mechanism — Remington has its own “X-Mark Pro” system to replace the Walker design — that it admits is safer.

Second, there’s a common myth thrown around by tort reformers that a couple lawsuits can force a product to be pulled from the shelves. Nonsense. From what I’ve seen, the M700 has been the subject of over 135 lawsuits, and it hasn’t been recalled — it’s still sold to this day. Fact is, plaintiff’s lawyers can’t force a company to do much of anything, we can only recover compensation for victims, and then support advocacy efforts that work through other means like public recognition of dangers.

Third, in product liability cases, there will never be any shortage of people willing to blame the victim, and the corporate defendants bank on that in refusing to concede these cases. Consider this Field & Stream article putting all the blame on the victims:

This is poignantly illustrated by the death of Gus Barber, a Montana boy who was shot by his mother Barbara in 2000. Mrs. Barber was unloading a 700 whose muzzle was pointed at a horse trailer. On the far side of the trailer was her son. The rifle went off; the bullet passed through the trailer; Gus Barber died. This was a terrible tragedy, and I am very sorry for the unbearable pain the Barbers suffered.

Rich Barber, Gus’ father, believes his son was killed because the rifle went off accidentally. In fact, Gus Barber died because a rifle was pointed at him. If the rifle had been pointed in a safe direction, all the Barbers would have gotten was a bad scare.

There’s a nugget of truth in that — if someone follows perfect safe gun handling practices, they will immediately unload the weapon before ever pointing the muzzle anywhere but the target — but there’s also an outrageous level of hypocrisy. If consumers are expected to be perfect in how they handle products, then why is it so wrong to demand that manufacturers at least be reasonable in how they make products? A gun that fires when you release the safety or move the bolt certainly isn’t perfectly designed, and it isn’t even reasonably designed: it’s defective. Manufacturers should be held accountable accordingly.

And so we march on. I suppose there will be another NBC report in another two years, after another hundred or so accidents and another dozen or so lawsuits. It’s a shame.

Scientific evidence plays a crucial role in virtually all mass torts cases (whether prescription drugs, environmental exposures, or consumer products), and so, when the National Research Council and the Federal Judicial Center published the Third Edition of the Reference Manual on Scientific Evidence, lawyers took note. Apart from Supreme Court opinions — which these days often raise more questions than they answer, which is partly why Daubert is still the leading case twenty years later — the Manual is likely the primary reference federal judges use to guide them in deciding what scientific evidence they allow into a jury trial.

Scientific evidence is one of those rare areas of law upon which every lawyer agrees: we are all certain that everyone else is wrong.

Defense lawyers think judges too easily allow in “junk science” from plaintiffs, citing the silicon breast implant litigation, which resulted in over $3 billion in settlements and compensation for autoimmune injuries that most scientists now agree weren’t caused by the implants. Plaintiff’s lawyers, in turn, think the silicon implant case is the exception that proves the rule, and that courts these days more frequently use Daubert and Frye to destroy plaintiffs’ cases by wrongly excluding from trial valid scientific and medical testimony (here’s an example involving vinyl chloride and cancer, and another involving Tylenol and liver damage, and don’t forget Kumho Tire’s indefensible exclusion of an eminently qualified tire tread separation expert), while allowing defendants to bring in all kinds of unscientific nonsense (like the natural forces nonsense in shoulder dystocia lawsuits that’s allowed everywhere except New York).

(In the criminal context, prosecutors complain about the “CSI Effect,” the claim that jurors today expect forensic evidence in every case, while criminal defense lawyers counter that the forensic evidence offered is often garbage and speculation from people with a diploma mill degree.)

As far as I can tell, mostly defense lawyers took note of the Reference Manual publicly, and they took a starkly negative view of it. Nathan Schachtman says “there is a good deal of equivocation between encouraging judges to look at scientific validity, and discouraging them from any meaningful analysis by emphasizing inaccurate proxies for validity, such as conflicts of interest.” David Oliver has been on the warpath, claiming “the fix is in” and most recently criticizing the chapter, “How Science Works,” written by David Goodstein, Professor of Physics and Applied Physics at CalTech.

Oliver complains:

Avoiding any pretense of humility the Reference Manual dismisses as woefully naive and inadequate those claims about the essence of the scientific endeavor that were ingrained in us in school. … Unsurprisingly the Reference Manual, operating on the view that objectivity is an illusion, that you can never prove anything is false and that you can never prove anything is true (“the apparent asymmetry between falsification and verification that lies at the heart of Popper’s theory thus vanishes”) and thus without any track to follow, quickly careens into post-modernism. … So all the great thinkers were wrong. Objectivity is out. Testability is out. Keeping an open mind is out. Skepticism is right out. The appeal to authority is not a logical fallacy but fundamental to science.

I think Oliver has misunderstood the purpose of the chapter. 

“How Science Works,” one of the early chapters of the Manual, begins:

The purpose of this chapter is not to resolve the practical difficulties that judges will encounter in reaching those decisions; it is to demystify somewhat the business of science and to help judges understand the Daubert decision, at least as it appears to a scientist. In the hope of accomplishing these tasks, I take a mildly irreverent look at some formidable subjects.

Goodstein uses the word “irreverent,” but I think the more descriptive word is “realistic.” Goodstein’s primary purpose in writing the chapter, at least as I interpret it, was to dispel several myths about science that everybody, including judges, learns in high school.

Scientists, even those in the “hard” sciences that are based primarily on empirical observations and mathematical analysis, have their own dogmas, prejudices, incentives, and conventions. That’s of course not to say that science is bad or wrong or useless — the only reason you can read this on your computers is because thousands of scientists over the years came to exactly the right conclusions about electricity, metallurgy, chemistry, mathematics, quantum theory, and information theory — but just to admit the obvious, which is that scientists are people and science happens under many of the same constraints as every other social endeavor. As much as we’d like to trust scientists as objective experts whose assertions should be accepted ipse dixit (a phrase that dates back to Pythagorus and is today routinely used by lawyers trying to discredit their opponent’s expert), the truth is that courts shouldn’t be afraid to look at scientists as people and evaluate them accordingly.

I have no doubt that Goodstein would recommend scientists in pursuit of some fundamental truth about nature should hold themselves to the highest standard, and should do everything in their power to put objective analysis ahead of subjective belief. At the same time, I can’t imagine anything more foolish and counterproductive that a judge trying to rule on a pretrial motion could do than to assume that everyone who calls himself a scientist is unbiased and incapable of making a mistake.

A judge hearing a Daubert or Frye motion who tries to figure out what the “correct” scientific answer is to the issue in the case has already committed a reversible error. That’s not their job. Their job is to make sure the jury isn’t going to hear pure baloney, not to pick one scientist’s opinion over another’s. As Justice Breyer writes in the Preface to the Manual:

The search is not a search for scientific precision. We cannot hope to investigate all the subtleties that characterize good scientific work. A judge is not a scientist, and a courtroom is not a scientific laboratory. But consider the remark  made by the physicist Wolfgang Pauli. After a colleague asked whether a certain scientific paper was wrong, Pauli replied, “That paper isn’t even good enough to be wrong!” Our objective is to avoid legal decisions that reflect that paper’s so-called science. The law must seek decisions that fall within the boundaries of

scientifically sound knowledge.

And to avoid legal decisions based on science that is “not even wrong,” courts need to recognize the reality of how scientific research is produced, which is some distance from the idealized vision of the scientific method. That’s all Goodstein was getting at.

A year ago, I posted the Young Lawyer’s Guide To Legal Marketing. My thoughts haven’t changed, i.e., find a mentor and then “build your practice the way you’d built a cake store or a plumbing business: through superior quality, exceptional customer service, making calls and wearing down your shoe leather. Get your name out there and make sure it’s associated with quality.” And be generous with your time.

Within that post I quoted another article with ten lawyer marketing tips for young attorneys, which began with “#1 – Excel at the Basics.” Let’s elaborate on how young litigators improve their “basics.”

1. What Not To Work On: Outwitting Witnesses At Trial

I hate to break it to you, but you were sold a bill of goods. You will not spend every day on trial. Depending on your firm, there’s a good chance you won’t spend any time actually questioning witnesses. Some associates do indeed spend a fair amount of time in court, and some even conduct full trials, but trust me on this point: you will not have a single Perry Mason moment in which you win a big case by outwitting a formidable witness.

Don’t worry about it. You know what real trial lawyers talk about at seminars and conferences and the like? How they learned to stop playing tricks and start working on their persuasive methods, like by developing case themes with their evidence and by building credibility with the jury.

Last year one of the biggest verdicts in the country was a $1.5 billion jury award in Maryland, two-thirds of it in punitive damages, against Exxon over a groundwater leak of gasoline that contaminated over 200 wells with methyl tertiary butyl ether (MTBE). Do you think that, after deft questioning by plaintiff’s counsel, an officer for Exxon admitted they lied to local government authorities about the protective measures the company took? Of course not. Every last part of the case had to be proven, piece by piece, to the jury. How?

2. “Turn Every Goddamn Page”

There’s some great journalism and historical writing out there — one of the parents of two kids that go to the same pre-school as mine just won a Pulitzer doing some fantastic work — but there’s only one Robert Caro. There’s only one biographer who, thirty years after the fact, can uncover proof that LBJ’s election to the Senate in 1948 was stolen. He has a new LBJ book coming out (ten years after his last one; for all his virtues, he is not a model of dispatch), and the New York Times explored his method:

For the Johnson books, he has conducted thousands of interviews, many with Johnson’s friends and contemporaries. (Lady Bird spoke to him several times and then abruptly stopped without giving a reason, and Bill Moyers, Johnson’s press secretary, has never consented to be interviewed, but most of Johnson’s closest cronies, including John Connally and George Christian, Johnson’s last press secretary, who spoke to Caro practically on his deathbed, have gone on the record.) He has spent literally several years at the Johnson Library, in Austin, Tex., painstakingly going through the red buckram boxes that contain Johnson’s papers, and he has been the first researcher to open some of the most revealing files there. “Over and over again, I’ve found crucial things that nobody knew about,” he said. “There’s always original stuff if you look hard enough.” He added that he tried to keep in mind something that his managing editor at Newsday, Alan Hathway, a crusty old newspaper­man once told him, after pointing out that Caro was the only Ivy Leaguer who ever amounted to anything: “Turn every goddamn page.”

“Turn every goddamn page” produces great journalism and historical works, and it wins cases. It is now your motto. Cases on TV are won through brilliant, impromptu cross-examinations at trial. Real cases are won through dogged investigation and by relentlessly investigating until you have both found and turned every goddamn page.

How do you do that? 

First, ask your client to give you every document they have, and to explain what they are. Second, serve the opposing party with custom-tailored interrogatories and requests for documents asking for everything. You won’t get everything so, third, serve requests for admission demanding they admit those documents are all the responsive documents. That will get you more, but still not everything, so, fourth, notice the deposition of the records custodian for the defendant, at their place of business, with custom-tailored document classes identified. Fifth, when there, ask the deponent if they’re the most knowledgeable person about each class and, if not, ask who is, and then get that person to come down (remember, you’re already there and so are they), and ask them, and keep going until you’re confident you have everything you can get.

Did I mention you also need to scour the Internet, and to call other attorneys who litigated similar cases?

It’s a laborious, time-consuming process, and it’s not necessary for every case. But you need to learn how to dig for documents, and then, once you have them, how to develop the patience to “turn every goddamn page.”

3. Learn How To Take And Defend Depositions

It was a great line, but I think Gordon Gekko misquoted Sun Tzu on “every battle is won before it is ever fought.” The closest Sun Tzu said was: ”Victorious warriors win first and then go to war, while defeated warriors go to war first and then seek to win.”

Paraphrased: “Victorious litigators win in discovery and then go to trial, while defeated litigators amble through discovery and then seek to win at trial.”

You need to know how to prepare your witnesses, when to plan your depositions, what order to do depositions in, what documents you want them to bring, how to prepare an outline, how to react to tangents in the testimony, how to follow up on new information learned, how to handle obstructionist lawyers, what kind of coaching at depositions is sanctionable, and how to tell the difference between dishonest & knowledgeable, dishonest & ignorant, honest & knowledgeable, and honest & ignorant witnesses. Know the difference between known unknowns and unknown unknowns.

You get better at depositions by preparing for them, by doing a lot of them, and by taking time to think about and to evaluate what happened at prior depositions.

You don’t have to re-invent the wheel, though, and there are resources out there. Last week I received a review copy (one of the few perks of blogging) of D. Shane Read’s Winning at Deposition. I put it to the test by looking up “Asked and Answered,” one of the most common objections raised during depositions, and was gratified to see Mr. Read correctly describe the objection as baseless. That was enough to make me look through the rest of the book and, indeed, it succinctly captures many of the lessons attorneys should — but often don’t — learn about taking and defending depositions. It’s the cost of a fancy dinner with your spouse. If you’re still in the learning phase about depositions (and if you’re reading this post with “Young Litigator” in the title, you probably are), then check it out.

4. Learn How To Write A Brief The Judge Will Actually Like

I have written a lot about Legal Writing on this site. Like how:

• a string cite of a dozen cases supporting an obvious point is a bad idea
• lawyers underestimate the value of legal writing
• the basic rules of good writing you learned in college still apply in the law
• you shouldn’t listen to Supreme Court Justices because the kitchen sink approach has its benefits

But, really, you don’t need to go much farther than Judge Dale Fischer on the record in the FDIC / IndyMac case:

 I don’t know why lawyers do this, and there’s a lot of them in the room so take heed, all of you, language like failures are staggering, violations of this magnitude rarely occur, stunning display of incompetence, bitter irony, breathtaking dereliction of duty are not only unpersuasive, they’re somewhat annoying. I don’t have time for rhetoric. I’m really, really busy. Why anyone would want this job, I don’t know…

But in any event, it’s just – I don’t know whether you stay up nights trying to think of clever phrases, but trust me, no judge that I’ve ever spoken to has ever said, Boy, can that guy turn a phrase. They only say, Boy, why didn’t he get to the point.

Don’t turn phrases. Get to the point.

5. Be Patient

When I turned 30, a fellow trial lawyer told me: “when I turned 30, I thought people would finally take me seriously. When I turned 40, they did.”

This is a profession, not a hobby. It takes time. The best time to plant a tree is 30 years ago. The second best time is today.

As I’ve written before, anti-consumer legislators and judges have so thoroughly eviscerated claims against pharmaceutical companies that in most states there’s only a single claim left: the claim that brand-name drug manufacturers failed to warn about the risks of the drug.

As long as the company warned about the risks of the drugs, they’re essentially immune from liability, even if the drugs weren’t properly tested, even if they were deceptively marketed, and even if the drug didn’t perform as promised. (Sometimes state and federal attorneys general can sue over drugs that were falsely marketed, like how Johnson & Johnson was just walloped for $1.2 billion in Arkansas for improper marketing of Risperdal, but consumers can’t, because those same legislators and judges have delivered mortal wounds to most consumer class actions.)

A slim 5-4 majority of the Supreme Court disappointingly killed the vast majority of generic drug liability last year with PLIVA, Inc. v. Mensing (#1 on my list of most unfair drug and medical device court opinions). Manufacturers of the brand-name drugs that are still under their patents could kill almost all of the rest the litigation if they just bothered to warn consumers about the real side effects of their drugs. But they won’t. As I wrote in November about Propecia, the pharmaceutical industry is simply too dependent on blockbusters and marketing, and so try to squeeze every penny out of each drug, patient safety and lawsuits be damned.

That is, of course, until the FDA awakens from its slumber every now and then and makes the companies fix their labels. Just last week, the FDA released two prescription drug label changes, one for Propecia, another for Beyaz, Safyral, Yasmin and Yaz.

Propecia (new label here, FDA release here) will warn about “libido disorders, ejaculation disorders, and orgasm disorders that continued after discontinuation of the drug” with the patient insert noting “reports” of “difficulty in achieving an erection that continued after stopping the medication,” the same sexual side effects in the consolidated lawsuits in New Jersey.

Yasmin / Yaz (new label here, FDA release here) will warn about blood clots or, in the uniquely hand-wringing way drug labels describe deadly risks, it will warn that:

[S]ome epidemiologic studies reported as high as a three-fold increase in the risk of blood clots for drospirenone-containing products when compared to products containing levonorgestrel or some other progestins, whereas other epidemiological studies found no additional risk of blood clots with drospirenone-containing products.

Yasmin’s patient insert is more informative than the warning label itself, noting, “Like pregnancy, birth control pills increase the risk of serious blood clots … Women who use birth control pills with drospirenone (like Yasmin) may have a higher risk of getting a blood clot.”

What Bayer, Merck, and the FDA expect consumers to do with that sort of equivocation is anybody’s guess. Given the financial incentive drug companies have to conceal risks, and how slow the wheels turn at the FDA’s bureaucracy, it usually takes a long time for labels to be updated to show their true risks. Hundreds of Actos lawsuits have been filed, but the Actos warning label still only admits “There may be an increased chance of having bladder cancer when you take Actos,” and hundreds of Pradaxa deaths have been reported, but the Pradaxa patient medication guide says only “Pradaxa can cause bleeding which can be serious, and sometimes lead to death,” without a word discussing the lack of a reversal agent or the comparative risk to warfarin.

I raise the actual text of the labels not to address their adequacy per se, but to address another issue near and dear to my heart as a plaintiff’s lawyer: whether or not a FDA labeling change is a “subsequent remedial measure.”

As every law student learns either in their Torts class or Evidence class or both, Federal Rule of Evidence 407 says:

When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove:

• negligence;
• culpable conduct;
• a defect in a product or its design; or
• a need for a warning or instruction.

But the court may admit this evidence for another purpose, such as impeachment or — if disputed — proving ownership, control, or the feasibility of precautionary measures.

Lawyers refer to this in shorthand as “subsequent remedial measures,” even though that phrase is no longer in the Rule itself. As the notes to Rule 407 say, the primary purpose of the Rule is to further “a social policy of encouraging people to take, or at least not discouraging them from taking, steps in furtherance of added safety.” The notes also say that Rule 407 is limited in its application: “Exclusion is called for only when the evidence of subsequent remedial measures is offered as proof of negligence or culpable conduct.” I.e., even if something a defendant did qualifies as a “subsequent remedial measure,” plaintiffs can still introduce it as evidence at trial to prove issues like notice, control, and causation.

In every drug injury case I’ve seen, the drug makers argue that every change to a drug’s warning label is a “subsequent remedial measure,” and so Rule 407 always prevents plaintiffs from showing those updated warning labels to the jury, regardless of circumstances. Here’s the defense lawyers at Drug & Device Law arguing exactly that. I don’t give too much stock to any of their three arguments, because I think they miss the point: the updated warning labels are undeniably relevant to a host of issues other than proving “negligence, culpable conduct, a defect in a product or its design, or a need for a warning or instruction.”

Truth is, drug injury plaintiffs aren’t the ones who bring the FDA warning labels into these cases, drug companies are. And they beat the issue to death. You can’t go ten minutes in a drug injury trial without a defense lawyer referencing the FDA’s approval of the warning label, or claiming that the drug manufacturer had no power to modify the warning label without FDA approval.

Judge Laplante saw through the drug companies’ shell games and got it exactly right in Bartlett v. Mut. Pharm. Co., 2010 DNH 131,  2010 U.S. Dist. LEXIS 111259 (D.N.H. 2010):

Given that Mutual intends to use the FDA’s approval of Sulindac’s label as evidence of the label’s adequacy (which is an element of Mutual’s ‘comment k’ defense, see Bartlett, 731 F. Supp. 2d 135, 2010 DNH 112, at 25-26 (discussing Restatement (Second) of Torts § 402A, cmt. k (1965))), this court does not consider it unfairly prejudicial for Bartlett to counter with evidence that the FDA changed that label less than two years later, especially to the extent that the FDA relied on information available to Mutual at the time of Bartlett’s prescription. One might even argue that it would be unfairly prejudicial to prevent Bartlett from responding in kind.

I previously discussed Restatement of Torts 402A Comment k. You don’t have to look far to find a drug company claiming FDA approval is the end-all, be-all of the case. Take a look again at my list of the most unfair prescription drug and medical device opinions of last year, and look at #8, Dobbs v. Wyeth Pharmaceuticals, 797 F. Supp.2d 1264 (W.D. Okla. 2011). It was an Effexor suicide case, and the court dismissed the plaintiff’s claims entirely because it concluded as a matter of law that the FDA would have rejected the warning label proposed by the plaintiffs.

What’s good for the goose is good for the gander: if defendants can make the whole trial about FDA approval of their warning labels, then plaintiffs should be able to rebut that argument by showing how the FDA eventually mandated a strong warning label — just like what just happened with Propecia and Yasmin / Yaz.

Moreover, considering how defendants routinely also deny their drugs caused the plaintiffs’ injuries, plaintiffs should be able to tell the jury that the defendants and the FDA both agree that the drugs can indeed cause those injuries.

Excluding the labeling changes wouldn’t be bad news for the 60 or so Propecia plaintiffs and the over 11,000 Yaz / Yazmin / Ocella plaintiffs — because their claims are already in my humble opinion quite strong — but the plaintiffs’ lawyers would certainly prefer to introduce at trial evidence that the drug company eventually conceded the exact risk the plaintiffs are suing over, and now do indeed warn their consumers about it.

Big waves were made yesterday with the United States Department of Justice (DOJ) filing an antitrust lawsuit against Apple and five of the six largest publishers of trade books in the United States, together comprising over half of the New York Times fiction and non-fiction bestseller lists. Here’s the complaint.

The lawsuit alleges (as best can be summarized in one sentence) that, after Amazon introduced $9.99 pricing of popular e-books, Apple conspired with the publishers so they would all simultaneously move from the “wholesale” model (where retailers set their own price after buying at a set price from distributors) to an “agency” model that gave publishers the power to dictate retail prices, after which they coordinated a price hike (with Apple’s permission) to force Amazon to raise its prices or lose access to all those books. Three of the publishers have already agreed to a tentative settlement, while Apple, Macmillian, and Penguin have vowed to fight.

Macmillian’s CEO said the company would have settled, but the DOJ’s terms were “too onerous” and “could have allowed Amazon to recover the monopoly position it had been building before our switch to the agency model.” Keep that in mind for what follows.

The lawsuit has been expected for a long time. Given prior disclosures about pre-suit settlement discussions over the case, a number of consumer antitrust class action lawsuits have already been filed on behalf of e-book purchasers. (Ed Oswald, who thinks Apple should “surrender” the federal case, has been following those cases for a while, check his archives.) If you really want to know the ins-and-outs of antitrust law applicable to the case, read this brief filed by Apple as part of their motion to dismiss the consumer cases, and this brief filed by the plaintiffs in response. I’ll get to my thoughts on the merits of the consumer cases and the DOJ case in a moment.

Few issues in recent memory have produced so much commentary — I suppose that’s what happens when a story hits writers, bibliophiles, techies, and Apple fans and foes all at once — and there’s so much out there about the role of these companies in the e-book market it’s hard for me to even suggest where to begin. Of the many issues of law, business, and the future of book publishing raised by the case, I write to develop just one of those issues: why the DOJ was right to bring it. 

Even before it was filed, the antitrust claims were controversial, with Steven Pearlstein aptly summing up the core objection to the claim:

What looked to consumers like a great bargain at $9.99 a book looked to others in the industry suspiciously like predatory pricing, or selling below cost today in order to gain a monopoly and raise prices in the future.

So which is better: a market in which Amazon uses low prices to maintain its e-book monopoly and drive brick-and-mortar bookstores out of business, or one in which the major book publishers, in tacit collusion with Apple, break Amazon’s monopoly and raise prices?

More than a month ago, Scott Turow, President of the Authors Guild, echoed the view sentiments that if anyone was a bigger threat to a thriving book market, it was Amazon:

Just before Amazon introduced the Kindle, it convinced major publishers to break old practices and release books in digital form at the same time they released them as hardcovers. Then Amazon dropped its bombshell: as it announced the launch of the Kindle, publishers learned that Amazon would be selling countless frontlist e-books at a loss. This was a game-changer, and not in a good way. Amazon’s predatory pricing would shield it from e-book competitors that lacked Amazon’s deep pockets.

Critically, it also undermined the hardcover market that brick-and-mortar stores depend on. … For those of us who have been fortunate enough to become familiar to large numbers of readers, the disappearance of bookstores is deeply troubling, but it will have little effect on our sales or incomes.  … For new authors, however, a difficult profession is poised to become much more difficult. The high royalties of direct publishing, for most, are more than offset by drastically smaller markets. And publishers won’t risk capital where there’s no reasonable prospect for reward. They will necessarily focus their capital on what works in an online environment: familiar works by familiar authors.

It’s not a trivial objection. Some authors complained bitterly when Amazon played chicken with Macmillan, briefly pulling all Macmillian books from its store when Macmillian wouldn’t play along with the $9.99 pricing, only to relent.

Truth is, as much as I liked paying $9.99 for every new title as a customer, it was hard to see how that would support a thriving and diverse book market in the future. It indeed looked like a short-term ploy by Amazon to bring consumers to the Kindle and eliminate publishing houses as middlemen. In addition to being predatory pricing that could have turned into a price hike, the arrangement was likely bad for the book industry as a whole, because those “middlemen” sometimes serve an important functions in the funding, marketing, and distribution of author’s works.

Thus, before we talk about the Apple–Publisher antitrust violations, we first need to address the potential for an Amazon monopoly. If you’re sitting in the offices of the DOJ’s Antitrust Division, there are two things you have to keep in mind: the law and the market.

Based on the law, was Amazon, which controlled 90% of the ebook market prior to the Apple iBooks “agency” agreement, a monopoly? Maybe so, but it’s exceedingly hard to hold companies liable for abuse of a monopoly power. Having a monopoly isn’t illegal, what’s actually illegal under § 2 of the Sherman Act is “the possession of monopoly power in the relevant market and the willful acquisition or maintenance of that power as distinguished from growth or development as a consequence of a superior product, business acumen, or historic accident.” United States v. Grinnell Corp., 384 U.S. 563, 570­-71 (1966)(emphasis added). The case against Amazon would be a “predatory pricing” claim, and that’s a lot harder to prove than you’d think; since Brooke Group Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. 209 (1993), virtually no plaintiff has actually prevailed on a predatory pricing claim. (See this article, p. 2.)

In the market, was Amazon going to be a persistent monopoly? If there’s one thing we seem to have learned about the tech industry, it’s that monopolies don’t seem to last very long. Some of the tech industry monopoly cases have resulted in successes. In 2004, Novell, for example, scored a settlement from Microsoft worth over half a billion dollars for claims relating to their NetWare software, but just last December went to trial with their claims over WordPerfect and ended up with a hung jury. By and large, though, the industry moves quickly enough that what feels like a monopoly is often gone within the next few years, nothing like the Trusts of a century ago. The fact that Macmillian had already forced Amazon to back down was an indication that, despite its huge presence in the e-book market, Amazon’s power was limited, and was open to attack from competing platforms like iBooks — even without the illicit agreements.

Which brings us to Apple and the Publishers. If even half the DOJ allegations are true, then we know this much: Apple and the Publishers certainly thought they were doing something illegal. Meeting only in person, using cell phones instead of business phones, deleting emails, et cetera. It’s all salacious stuff. And in the end, they probably had good reason to worry: in antitrust law, “combination” claims are better claims than monopoly claims.

In my humble opinion, Apple and the publishers have only a small chance of getting the case dismissed in light of the specific allegations of collusion in the DOJ’s complaint and the Second Circuit’s opinion in the online music price-fixing case. Let’s quote part of it:

Under Section 1 of the Sherman Act, “[e]very contract, combination . . . , or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is . . . illegal.” 15 U.S.C. § 1.  The crucial question in a Section 1 case is therefore whether the challenged conduct “stem[s] from independent decision or from an agreement, tacit or express.”  Theatre Enters., Inc. v. Paramount Film Distrib. Corp., 346 U.S. 537, 540 (1954).  Although parallel business behavior “is admissible circumstantial evidence from which the fact finder may infer agreement,” it does not itself constitute a violation of the Sherman Act, because it is “consistent with conspiracy, but just as much in line with a wide swath of rational and competitive business strategy unilaterally prompted by common perceptions of the market.”  Twombly, 550 U.S. 553-54 (internal quotation marks omitted).

… [D]efendants claim that the conduct alleged in the complaint “would be entirely consistent with independent, though parallel, action.”  Appellee’s Br. 20.  Under Twombly, allegations of parallel conduct that could “just as well be independent action” are not sufficient to state a claim.  550 U.S. at 557.  However, in this case plaintiffs have alleged behavior that would plausibly contravene each defendant’s self-interest “in the absence of similar behavior by rivals.” 7 Areeda & Hovenkamp § 1415a (2d ed. 2003); see also Posner, supra, at 100.  For example, it would not be in each individual defendant’s self-interest to sell Internet Music at prices, and with DRMs, that were so unpopular as to ensure that “nobody in their right mind” would want to purchase the music, unless the defendant’s rivals were doing the same.  For these reasons we hold that the SCAC states a claim under Twombly.

According to the DOJ, the publishers all signed identical agreements with Apple in the course of three days, agreements under which all of the publishers, in concert, raised their prices from the Amazon-imposed $9.99 to higher prices and coordinated “tiers” of pricing. That’s not “parallel” conduct — it’s a classic example of a “combination” designed to raise consumer prices. The fact that Apple was right in the thick of it, demanding a 30% royalty while allegedly assuring each of the publishers that several other publishers were all doing the same thing, is icing on the cake, and is by itself likely enough to get the case to the jury.

But that’s not the only reason I think the case is appropriate. As I mentioned before, if you’re sitting in the offices of the DOJ’s Antitrust Division, there’s two primary issues you keep in mind: the law and the market.

In terms of the law, the DOJ’s case is solid: if the facts alleged are true, then the law is as favorable to the DOJ’s claims against the Apple and Publishers as any antitrust plaintiff will ever get.

The real issue is the market, and the DOJ got it right: the DOJ’s demand of the companies is genuinely aimed at improving the consumer market while recognizing the fast-paced reality of the content publishing industry. Here’s what Attorney General Holder said the settlements demanded:

If approved by the court, this settlement would resolve the Department’s antitrust concerns with these companies, and would require them to grant retailers – such as Amazon and Barnes & Noble – the freedom to reduce the prices of their e-book titles.  The settlement also requires the companies to terminate their anticompetitive most-favored-nation agreements with Apple and other e-books retailers.

In addition, the companies will be prohibited for two years from placing constraints on retailers’ ability to offer discounts to consumers.   They will also be prohibited from conspiring or sharing competitively sensitive information with their competitors for five years.   And each is required to implement a strong antitrust compliance program.

The settlement doesn’t compel the publishers to use a wholesale model or a retailer model; instead, it mostly just limits what they do for the next few years, particularly the next two years. As Tim Carmody says at Wired’s Epicenter, “In fact, in five years, we may end up with exactly the same kinds of agreements publishers and retailers have today. But that will be a decision made by the market, not by any real or perceived conspiracy between publishers and a single retailer that imposed that model on the market.”

That’s exactly what the DOJ should be doing: halting the collusive agreement for a time, and then allowing the market to flourish naturally. The problem here isn’t that the agency model is objectively a bad way for the book market to be structured, but that the agency model arose as the result of illegal collusive deals. Whatever the marketplace demands, the structure setup by Apple was not a functioning free market but an anticompetitive ploy.

It is just as Theodore Roosevelt said at the Convention of the National Progressive Party in 1912:

Wherever in any business the prosperity of the business man is obtained by lowering the wages of his workmen and charging an excessive price to the consumers we wish to interfere and stop such practices. We will not submit to that kind of prosperity any more than we will submit to prosperity obtained by swindling investors or getting unfair advantages over business rivals. …

It is utterly hopeless to attempt to control the trusts merely by Antitrust Law, or by any law the same in principle, no matter what the modifications may be in detail. In the first place, these great corporations cannot possibly be controlled merely by a succession of lawsuits. The administrative branch of the Government must exercise such control.

That’s what the DOJ did today, and they should be applauded for it.

[Update: The good folks (despite being defense lawyers) at Abnormal Use have posted a defense of the slide, one worth reading.]

When I first saw it, I did a double-take to make sure I wasn’t reading The Onion. The headline at the Consumer Product Safety Commission was, ”Children’s Slides Recalled by Landscape Structures due to Fall Hazard,” and one of the pictures included the slide in question:

Who designed that? How did they think it was going to work? I have no doubt the manufacturer is right that “The Evos® Slalom Glider® is a thrilling ride that promotes balance and coordination,” because odds are pretty good a kid is going to fall off and break their arm or knee when they land. Standing on the roof of a moving car is also a “thrilling ride that promotes balance and coordination.”

Unsurprisingly, the CPSC recalled the things after at least 16 children under 8 years old were seriously injured by falls, and at least one lawsuit has been filed. (Thank goodness for those playgrounds conforming to ASTM F1292 surface impact specifications; if the kids had been on asphalt or concrete, we would probably see far more skull fractures and brain injuries.)

I’ve written before about the legal issues raised by playground safety. 

Maybe there’s some societal benefit to less safe playgrounds. Maybe we should have “danger playgrounds” that are more challenging to children because they encourage better decision-making behavior by children, akin to how removing lights and signals at intersections can make people pay more attention.

But none of the advocates for dangerous playground equipment ever admit that, in general, dangerous playground amusements really are more dangerous, and so will result in more injuries. Instead, it’s all just have-and-eat-cake-too reasoning, with claims that we can somehow install less safe playground equipment and yet have the same injury rates we do with safer equipment.

The company isn’t commenting on the lawsuits, but did say:

“Our utmost concern is for the safety of children,” the company said in an email. “We are working in cooperation with the U.S. Consumer Product Safety Commission (CPSC) in the voluntary recall of the Slalom Glider due to concerns regarding falls. LSI is no longer selling the Slalom Glider.”

I have no reason to doubt that’s true now, but what if the complaint filed against them is correct that:

The only instruction regarding the use of the ‘Evos Slalom Glider’ was a sticker on the ladder of said slide/glider with an illustration demonstrating the proper use. The proper use demonstrated in said illustration showed a child straddling said slide with one leg over each side of the slide, with the child placing his hands behind him.

Where was the concern for the safety of the children then? The slide was undeniably intended to be riskier than your typical slide, so why didn’t they warn parents about those additional risks?

Surely somewhere along the way in testing they noticed that kids would unintentionally fall off of the slide even while using it properly, and would have noticed a handful of problems that were more common than others. How hard would it have been to have come up with some sort of solution for that particular danger (e.g., a larger transition platform, so kids could stabilize themselves before they began), or to at least have warned of the particular risks of the slide?

It’s commonplace for people to complain about there being too many lawyers with too much influence on business decisions, but this look like a situation in which having a couple more lawyers around from the beginning would have made a big difference.

In my last post about sexual assault myths, I referenced a case involving three sexual assault convictions overturned by the Pennsylvania Superior Court. (The case is formally Commonwealth v. Claybrook; here’s the Philadelphia Inquirer’s write-up.) The jury convicted and the trial judge denied the defendant’s motion for a new trial, but the Superior Court reversed, holding that the convictions were “contrary to the weight of the evidence,” and so remanded the case for a new trial. The prosecution appealed to the Pennsylvania Supreme Court, which is now considering the case.

This sort of issue is a bit distant from my normal work on civil litigation, but it implicates a fundamental principle of how our courts are supposed to function, hence my interest. In general, appellate courts exist to review legal issues, not factual issues. They don’t hear any testimony. They don’t see any witnesses shift and pivot in their seat, fumble with their words, look to their lawyer for help, or observe any other non-verbal cues that we associate with a person lying, being confused, or telling the truth. They read a cold transcribed record, where “I shot the clerk” may mean something else entirely.

As a civil lawyer, I find it strange to see an appellate court ever overrule a jury’s factual findings where those factual findings were also sustained by the trial judge. In civil trials, unless the trial judge made a legal error — like allowing in prejudicial evidence, excluding probative evidence, or giving a flawed jury instruction — then the verdict will almost always stand on appeal. The closest we have in civil litigation to “weight of the evidence” is “judgment notwithstanding the verdict,” which ends the case in favor of the party that lost in front of the jury, but that’s essentially reserved for the trial court to decide, not the appellate court, and the standard is astonishingly strict:

In reviewing the propriety of an order granting or denying judgment notwithstanding the verdict, we must determine whether there was sufficient competent evidence to sustain the verdict. We view the evidence in the light most favorable to the verdict winner and give him or her the benefit of every reasonable inference arising therefrom while rejecting all unfavorable testimony and inferences. Moreover, a judgment n.o.v. should only be entered in a clear case and any doubts must be resolved in favor of the verdict winner. Finally, a judge’s appraisement of evidence is not to be based on how he would have voted had he been a member of the jury. A court may not vacate a jury’s finding unless the evidence was such that no two reasonable minds could disagree that the outcome should have been rendered in favor of the movant.

Birth Center v. St. Paul Companies, Inc., 787 A. 2d 376 (Pa. 2001)(quotations and citations omitted). In the Birth Center case, I hasten to add, the trial court granted judgment n.o.v., overturning the jury’s verdict, but the Pennsylvania Supreme Court re-instated the jury’s verdict. It’s the jury’s province, not the court’s, to decide the facts. Like I said, outside of reversals for purely legal issues, judgment n.o.v. is exceedingly rare.

In criminal trials, however, there’s the “weight of the evidence” challenge, which I can only describe as a request for a do-over. In contrast to a motion for judgment n.o.v. in the civil context, a defendant’s motion for a new trial on the weight of the evidence allows the trial court to independently review the facts decided by the jury, with a far less strict standard than “no two reasonable minds could disagree:”

A motion for new trial on the grounds that the verdict is contrary to the weight of the evidence, concedes that there is sufficient evidence to sustain the verdict. Thus, the trial court is under no obligation to view the evidence in the light most favorable to the verdict winner. An allegation that the verdict is against the weight of the evidence is addressed to the discretion of the trial court. A new trial should not be granted because of a mere conflict in the testimony or because the judge on the same facts would have arrived at a different conclusion. A trial judge must do more than reassess the credibility of the witnesses and allege that he would not have assented to the verdict if he were a juror. Trial judges, in reviewing a claim that the verdict is against the weight of the evidence do not sit as the thirteenth juror. Rather, the role of the trial judge is to determine that notwithstanding all the facts, certain facts are so clearly of greater weight that to ignore them or to give them equal weight with all the facts is to deny justice.

Commonwealth v. Widmer, 744 A. 2d 745 (Pa. 2000)(quotations and citations omitted).

Justice demands we have a check on the jury system like that. Justice is blind, but juries sometimes are not — sometimes they’re genuinely confused, given the complicated way in which trials are run — and the trial judge stands as a bulwark against manifest injustices. The “weight of the evidence” challenge was perhaps most famously granted by Judge James Edwin Horton in the Scottsboro Boys re-trial, where he overturned the jury’s conviction of the young men for rape. (Judge Horton knew the ruling would cost him his re-election, and it did.) 

But the argument for allowing trial judges to overrule juries and order re-trials — i.e., the fact that judges are also there seeing the testimony and evidence — falls apart when we look to appellate courts. As the Pennsylvania Supreme Court said in considering these problems, “Whereas a trial court’s decision to grant or deny a new trial is aided by an on-the-scene evaluation of the evidence, an appellate court’s review rests solely upon a cold record. Because of this disparity in vantage points an appellate court is not empowered to merely substitute its opinion concerning the weight of the evidence for that of the trial judge.” Commonwealth v. Brown, 648 A. 2d 1177 (Pa. 1994).

In Brown, the prosecutors argued that an appellate court could never overrule a trial court’s decision to deny a motion for a new trial on the weight of the evidence. The Pennsylvania Supreme Court rejected that argument, holding, in somewhat circular fashion:

An appellate court has the duty to review the trial court’s denial of a defendant’s motion for a new trial on the grounds that the verdict was against the weight of the evidence. The purpose of that review is to determine whether the trial court abused its discretion and not to substitute this Court’s judgment for that of the trial court.

Id. But how does an appellate court determine if “the trial court abused its discretion” in denying a motion for a new trial based on the weight of the evidence?

The United States Supreme Court recognized that considering witnesses’ credibility — something everyone agrees appellate courts are ill-equipped to do — was an essential part of the “weight of the evidence” review process:

When a motion for new trial is made on the ground that the verdict is contrary to the weight of the evidence, the issues are far different…. The [trial] court need not view the evidence in the light most favorable to the verdict, it may weigh the evidence and in so doing evaluate for itself the credibility of the witnesses. If the court concludes that, despite the abstract sufficiency of the evidence to sustain the verdict, the evidence preponderates sufficiently heavily against the verdict that a serious miscarriage of justice may have occurred, it may set aside the verdict, grant a new trial, and submit the issues for determination by another jury.

Tibbs v. Florida, 457 U.S. 31, 38 n. 11 (1982)(quotation omitted, emphasis added)(rejecting argument that re-trial after grant of motion for new trial would constitute double jeopardy). But how does an appellate court analyze the credibility of witnesses it never saw testify?

Judge Olszewski of the Pennsylvania Superior Court aptly summed up the problem in a dissent in Commonwealth v. Murray:

The majority’s citation of Commonwealth v. Coyle aptly illustrates the irreconcilable conflict that appellate review of challenges to the weight of the evidence creates with the traditional function of the fact-finder. After stating that the fact-finder is free to believe all, part or none of the evidence, the majority cites with approval a decision granting a new trial because the jury apparently disregarded expert testimony. Why is it apparent that the testimony was disregarded? Because the jury did not believe it even though it was unimpeached. The law is clear, however, that a jury may believe all, part or none of the evidence presented even where that evidence is uncorroborated or uncontradicted. According to the majority, a fact-finder is free to believe all, part or none of the uncontradicted evidence; however, an appellate court, after reviewing a cold record, may grant a new trial if it determines that the jury should have believed the evidence presented. Thus, the fact-finder is free to reach the same result the appellate court would have reached if presented with the same evidence. Despite protestations to the contrary, the appellate court becomes the final finder of fact in these cases.

Such a challenge to the credibility determinations may properly be addressed to the trial court who has also observed the witnesses as they testify. The trial court may exercise its sound discretion and grant a new trial where the verdict shocks the court’s conscience. Appellate courts, however, having had no opportunity to observe the evidence as it was presented, are uniquely unsuited to question the credibility determinations of the fact-finder. A cold record produces thin ice on which to support a weight of the evidence claim.

Commonwealth v. Murray, 597 A. 2d 111 (Pa. Super. Ct. 1991). And that’s exactly the problem in the Claybrook case, and why I raised in my prior post the issues about rape myths in the judicial system. How did the Superior Court reach its conclusion that the trial court had ‘abused its discretion’ in denying the defendants’ motion to overturn the convictions because the convictions were against the weight of the evidence? By reviewing the victim’s testimony and finding it not to be credible based upon their own preconceptions about what sexual assault cases ‘should’ look like — the exact thing they are not permitted to do.

There’s another problem, too. When an appellate court sends the case back down for another trial, what, exactly, are they looking for in the new trial? The same evidence and testimony? How would that change things?

Some courts, including the Supreme Court in Tibbs, have tried to dodge this issue by arguing that the standard is even higher for “successive convictions.” See, e.g., State v. Oasheim, 353 NW 2d 291 (N.D. 1984). But what sense does that make? Why should an appellate court, reviewing just a cold record, be allowed to undo the work of a jury and a trial judge and force another round of proceedings where there were no legal problems with the conviction in the first place?

I hope Claybrook opens that big issue — whether an appellate court can ever reverse a trial court’s denial of a “weight of the evidence” motion — back up for the Pennsylvania Supreme Court. I’d like to see if anyone can answer Judge Olszewski’s argument that the only way an appellate court can order such a reversal is by considering the credibility of the witnesses on a cold record. Part of me believes strongly in the need for as many checks and balances as we can have in the criminal justice system, but I just can’t shake the idea that the “check” of appellate courts reviewing a trial court’s denial of a “weight of the evidence” challenge is nothing more than a sophisticated gloss over the exercise of witness and defendant stereotyping.

This post is cross-posted on the Philadelphia Priest Abuse Trial Blog.

As Ralph Cipriano reported, the defense attorney for Father Brennan spent a lot of time cross-examining the prosecution’s chief witness against Father Brennan by going into the alleged victim’s reaction to the molestation, including why the alleged victim — an adolescent boy at the time — did not call out to his mother afterwards, why the alleged victim took a subsequent motorcycle ride with Father Brennan, and why the alleged victim didn’t report the assault to authorities sooner.

Father Brennan’s attorney, coincidentally named William Brennan, has an important job to do — safeguarding his client’s constitutional rights and challenging the testimony of his accuser — so I don’t fault him for going into those issues, but these types of questions raise a common problem in both criminal sexual assault prosecutions and civil sexual abuse lawsuits:  the persistence of rape myths in society and in the courts. The term “rape myths” was coined by psychologists as a means of describing false attitudes and beliefs that serve to deny allegations of sexual abuse and to thwart accountability for abusers.

Some of these rape myths are easy to spot.  For example, many people will thoughtlessly say a victim “asked for it” by wearing the wrong clothes or by drinking alcohol, or they assume that victims are lying for attention or to cover up an affair.  Myths like these are so pernicious and pervasive that the people perpetuating them don’t realize it. Thus, even people acting in good faith can end up applying rape myths to treat allegations of sexual abuse differently from other allegations of criminal conduct and to demand more proof from sexual abuse survivors (such as corroborating evidence in addition to testimony) than they do from other crime victims.

The testimony by Father Brennan’s alleged victim, and by many of the alleged clergy abuse victims, raises one of the more common rape myths: that a victim of rape, sexual assault, or molestation will resist an attacker forcefully, will cry out for help during the attack, and will immediately report the assault to others.  

We saw that myth at work nearly two years ago, when the United States Court of Appeals for the Third Circuit (the federal appellate court for Pennsylvania, New Jersey, and Delaware) reinstated a civil rights lawsuit brought by a sexual assault victim against a township police department.  In that case, a cashier at a convenience store was sexually assaulted and robbed at gunpoint, but when she reported the crime to the police, the detective in charge immediately assumed that she had fabricated the incident to cover up her own theft of cash from the store. The detective didn’t give the victim the same fair consideration he would have given victims of other crimes, in part because of his stereotypical views about how she “should” have acted after the assault.  Even though that same detective was also part of a task force investigating a serial rapist with a string of identical convenience store robberies and assaults, the detective never connected the two in his mind, and so eventually arrested the victim on charges of theft and making a false police report. The prosecution was only dropped after the real assailant (a serial offender) was captured and confessed to the crime.

That case demonstrates more than just problems in the police department, though, because the federal district court that first heard the case dismissed it without a jury trial, finding that the detective undoubtedly had sufficient probable cause to arrest the sexual assault victim. The Women’s Law Project (WLP), based in Pennsylvania, organized an amicus effort, representing a number of sexual assault victim advocacy groups, to urge the Third Circuit to reverse that decision, which it did.  The Third Circuit reinstated the victim’s lawsuit, finding that a jury could believe sufficient facts to show the detective did not have adequate probable cause for the arrest.

More recently, the Pennsylvania Supreme Court accepted the appeal of a case in which three male college students were convicted of sexually assaulting a female student. A jury convicted all three men of sexual assault and indecent assault, and the trial judge allowed the convictions to stand, but the Pennsylvania Superior Court — which only read the briefs and transcripts of the case and never saw any witnesses testify — overturned the convictions.  The Pennsylvania Superior Court ruled that, although the victim’s testimony was internally consistent and although the jury believed her testimony enough to convict the three men, the Superior Court felt that she shouldn’t be believed because she had initially invited the men (who were friends of a friend) to hang out in her room, she had not sufficiently resisted, nor had she “instantaneously” reported the incident to the authorities (she reported the assault within an hour, but that apparently wasn’t fast enough).  Sexual assault advocates are hoping the Pennsylvania Supreme Court will reverse the Superior Court and reinstate the convictions. (The WLP has also filed an amicus brief in the case)

In the bigger picture, these cases aren’t just about if the township identified above should be sued or if those three men should be convicted.  Rather, it’s a broader issue about the roles of trial judges and juries in assessing the credibility of witnesses and the need to ensure that cases are decided by their facts and not by suppositions, prejudices, or stereotypes like rape myths. The overwhelming psychological, sociological, and criminological evidence showing that there is no “normal” way for a rape or sexual assault victim to act, and that a wide range of reactions — including freezing up during the assault and not telling anyone for months or even years — are all seen in genuine victims.

Unfortunately, Pennsylvania is unique as being the only state that does not allow prosecutors or plaintiffs in sexual abuse cases to bring in expert witnesses to talk about the fact that there is no “normal” reaction to a sexual assault and that the actions by Father Brennan’s alleged victim (such as not crying out, not reporting the assault immediately, and seeing his assailant again later in a social situation) are in fact consistent with those of a genuine victim.

I haven’t written much about medical malpractice lately because, apart from a couple unique cases, it doesn’t feel like there is anything new to say. Medical malpractice is still responsible for less than one-half of 1% of all United States healthcare costs, and it is still the case that even “hellhole” jurisdictions like Philadelphia are nonetheless still so hostile to patients’ lawsuits that three-quarters of injured patients walk away empty-handed from jury trials. (I would be remiss not to mention this recent study further discrediting the “hellhole” data about Philadelphia’s courts.)

But now I have some good news to report: it seems that many of the major medical societies are moving away from blaming lawyers and lawsuits for every problem under the sun, and are starting to take matters into their own hands to reduce the overall cost of healthcare while still protecting patient safety. The new campaign, “Choosing Wisely,” unveiled this week, was organized by the ABIM Foundation, part of the American Board of Internal Medicine (which has its headquarters only a couple blocks from my office). The ABIM Foundation brought together a number of the major physician specialty societies to come up with lists of five things — typically diagnostic tests — that doctors in each specialty shouldn’t do because they are wasteful and unnecessary.

The part that pleasantly surprises me is how the medical societies have all resisted the urge to trot out the “defensive medicine” line, the claim that doctors wouldn’t do any of these tests if it weren’t for the potential for medical malpractice liability.  See, for example, this NPR story and this JAMA article, neither of which quotes a doctor blaming lawyers for every wasteful practice in medicine.

As I have argued many times before on this blog, I think “defensive medicine” is mostly a bunch of hooey.  Contrary to what you hear from some insurance companies and tort reform organizations, medical malpractice lawsuits don’t impact access to care, and don’t cause doctors to order unnecessary tests. To see why lawsuits don’t result in “defensive medicine” requires a bit more understanding about how malpractice lawsuits work: 

Proving a medical malpractice case, like any professional liability tort, requires the plaintiff prove that (a) the doctor breached the standard of care and (b) that breach caused some harm to the plaintiff. “Harm” is a key practical component there: since no state awards attorneys’ fees to prevailing parties in medical malpractice cases, and thus the lawyers only get paid through the contingent fee portion of a settlement or enforced judgment, the only cases that are worth the risk to lawyers are cases with (a) a good chance at proving to a jury the doctor didn’t do what they were supposed to do and (b) substantial enough damages to justify the expense and risk of the case.

Politicians and insurance PR people like to sweep it under the rug, but malpractice cases are extraordinarily expensive to pursue, because every medical aspect of the case requires an expert witness to support it. Many medical malpractice cases require the plaintiffs’ lawyer pay for multiple physicians, each charging between $300 to $900 an hour, to evaluate and testify about the case.  Right nowm two of my colleagues are trying a birth injury case involving the failure to diagnose Group B Strep in pregnancy, and last I knew, they were calling as expert witnesses more than a half dozen neonatologists, pediatricians, obstetricians, and neurologists, with no guarantee that the plaintiff’s lawyer will recover any of these costs, much less recover any reasonable attorney’s fee.

Because of the expense and difficulty of pursuing medical malpractice cases — and the fact that, thanks to years of tort reform, lobbying and propaganda, the cases are disfavored by judges and juries — these days the only medical malpractice cases worth pursuing are those with large damages.  And that’s where the defensive medicine myth is exposed.

If a test or procedure is truly unnecessary or useless, then the test is not going to help the doctor diagnose or treat any sort of condition. The unnecessary test is thus not going to prevent any major injury to the patient — the damages essential to any successful malpractice case — and thus the unnecessary test won’t actually help the doctor avoid liability.  Put simply, an “unnecessary” test doesn’t do anything to help anyone except, perhaps, the doctor or the hospital performing it, because they charge for the service.

The Choosing Wisely campaign of course hasn’t said they agree with me that defensive medicine isn’t the problem, but they have specifically said that they want more dialogue between physicians and patients to ensure patients choose care that is “supported by evidence, not duplicative of other tests or procedures, free from harm, and truly necessary.”  Their lists of five things physicians and patients should question thus all identify tests that don’t do anything for the doctor or the patient, regardless of any concerns about medical malpractice one way or the other.

I couldn’t be happier with this development. Healthcare costs are rising at an unsustainable rate in this country, but so far, the dialogue over healthcare has focused on only two potential solutions:

1. denying necessary care to people who can’t afford insurance, or,
2. slashing away at compensation for the one hundred thousand or more medical malpractice victims every year.

Because the medical malpractice system is so inexpensive compared to healthcare as a whole (remember that number: less than one-half of a penny for every dollar spent on healthcare pays for all lawyers and costs on both sides, plus all compensation for victims), cutting away at compensation for malpractice victims doesn’t actually save any of us much money; it’s just unfair.

Choosing Wisely, however, goes right to the heart of the issue — physicians ordering tests that they don’t know aren’t supported by the medical literature, or which they know don’t help but which make a profit — and seeks to address this problem as a potential solution to rising healthcare costs. The Choosing Wisely campaign says they are continuing to work with other specialty boards to come up with more lists in the future. I hope that over the next few years these types of campaigns will change the conversation in medicine from one of blaming lawyers to one of cleaning up the waste in healthcare.

Over the past two weeks, one of the enduring questions of corporate governance — whether boards of directors are re-elected entirely every year of if their terms are “staggered” so that only a fraction of the directors (often 1/3 or 1/4) are up for vote every year — jumped back into public discussion. Steven Davidoff wrote about it on March 20th, with a thorough post, The Case Against Staggered Boards, that synthesized the issues well and linked to many of the core academic papers on the subject. As Davidoff asked:

According to the data provider FactSet SharkRepellent, 302 S.&P. 500 companies had staggered boards in 2002. Ten years later, the figure has fallen to 126.

Outside this universe of large companies, the staggered board has also fallen out of favor, though not as rapidly. Of 900 other companies outside the S.&P. 500, staggered board adoption rates have declined by about 25 percent since 2002.

It is here where our puzzle arises.

Compare this with the market for initial public offerings. According to FactSet SharkRepellent, 86.4 percent of the companies going public this year have had a staggered board. This figure is up from a still high 64.5 percent in 2011. Staggered board provisions have been adopted by prominent companies like Tesla, LinkedIn and Dunkin’ Brands.

What explains this divergence?

If this were a class, I’d raise my hand. Why do IPOs overwhelming have staggered boards while public companies overwhelmingly have annual-election boards? Because company founders and managers like to preserve as much power as they can when their companies go public.

Ever the professor, Davidson admits that’s one possibility, but also says it may be well-intentioned management trying to maximize shareholder value, or just the fault of lawyers giving every client the strictest option they can:

Companies going public may believe that the staggered board is important because it creates value by insulating directors from shareholder pressure so that they can make long-term decisions. More cynically, they adopt these provisions because it prevents shareholders from having undue influence that may affect their ability to keep their management positions or pay themselves compensation. …

But there may be another explanation here: the lawyers. The corporate legal bar is not particularly enamored of the staggered board, most likely from its experience representing companies without such a device. Many of these lawyers believe the staggered board provides negotiating room to bargain for a higher premium.

I’m always happy to blame lawyers for problems — they often are the problem — but I don’t think that’s the issue when it comes to IPOs. Davidson singles out LinkedIn and its IPO for its astonishingly aggressive staggered board provision, which says the board can only be de-staggered by an 80 percent vote of shareholders.

That’s not to maximize shareholder value and it’s not the fault of the lawyers. It’s about control. I have no doubt that, when Reid Hoffman, founder of LinkedIn and now Executive Chairman, went to the IPO lawyers, he didn’t ask, how can I maximize shareholder value? He was a major shareholder, and he would have known long in advance that his shares would be worth, literally, billions. Do you think he cared if his share would be $2.1 billion versus $2.5 billion or some other trivial difference?

Of course not. He went to his IPO lawyers and asked: how do I maintain control of my company? And they told him to set up a staggered board that could only be voted out with such a massive shareholder majority that it necessarily included the founders.

That’s good for the founders of the company, or whoever else is entrenched in the board of directors at that time, but it’s not so good for shareholders. Lucian Bebchuk, professor at Harvard Law, thinks so, too, and so he set up the Harvard Law School Shareholder Rights Project, which last week posted a celebratory press release on the The Harvard Law School Forum on Corporate Governance, discussing how they helped some state and municipal pension funds convince a couple dozen S&P 500 companies to de-stagger their boards.

A day later, Marty Lipton (inventor of the poison pill, the pre-eminent legal device for protecting boards from takeovers) swooped in to rain on the parade:

This is wrong. According to the Harvard Law School online catalog, the SRP is “a newly established clinical program” that “will provide students with the opportunity to obtain hands-on experience with shareholder rights work by assisting public pension funds in improving governance arrangements at publicly traded firms.” Students receive law school credits for involvement in the SRP. The SRP’s instructors are two members of the Law School faculty, one of whom (Professor Lucian Bebchuk) has been outspoken in pressing one point of view in the larger corporate governance debate. The SRP’s “Template Board Declassification Proposal” cites two of Professor Bebchuk’s writings, among others, in making the claim that staggered boards “could be associated with lower firm valuation and/or worse corporate decision-making.” …

It is surprising that a major legal institution would countenance the formation of a clinical program to advance a narrow agenda that would exacerbate the short-term pressures under which American companies are forced to operate. This is, obviously, a far cry from clinical programs designed to provide educational opportunities while benefiting impoverished or underprivileged segments of society for which legal services are not readily available. Furthermore, the portrayal of such activity as furthering “good governance” is unworthy of the robust debate one would expect from a major legal institution and its affiliated programs.

In Lipton’s view, law school clinical programs exist only to support the causes he likes and, in any event, should never, ever oppose the boards of directors he represents.

Lipton is wrong. The point of having law schools, as I’ve written before (and again), is to “lay the foundation for graduates who are capable of learning and developing technical skills and of exercising sophisticated and mature judgment in the face of uncertainty.” Sometimes legal clinics serve charitable and public interest purposes, but that’s not their primary purpose: the purpose is to give law students the experiences that will make them good lawyers.

Law is about disagreement. Law is superfluous where everyone agrees; the whole point is to establish rules for what happens when everybody doesn’t agree. Lipton should know as well as anyone that practicing the law requires you take a side and stick by it.

Which is why practice-oriented schools like Temple’s Beasley School of Law offer clinical programs all over the spectrum, from prosecuting criminals to defending the accused, to defending SEPTA from tort claims to the standard, Lipton-approved basic family law and public benefits programs for the indigent and the disabled. It’s quite possible Temple is using Jim Beasley’s donation to fund scholarships for students who go into the SEPTA clinic and help make our claims against SEPTA so frustratingly hard to win.

That’s good. That’s what we want. If we limit law school clinical programs to the issues where everybody agrees, we’ll end up with law schools banned from even introducing lawyers to the actual practice of law outside of a handful of limited areas. As much as corporate lawyers like Lipton believe they’re the masters of the universe, there’s nothing unique about corporate law, it’s just as susceptible to critical analysis, debate and, yes, advocacy, as any other field of law.

Once we recognize that law school clinical programs must take a side to have any relevance whatsoever to the actual work of practicing lawyers, it’s quite easy to see why there’s nothing “wrong” with the Shareholder Rights Project. Law schools exist to train lawyers. To do that, they hire professors, and give them discretion. If a professor thinks it would serve a pedagogical purpose to have students advocate one form of a board of directors versus another, that’s wonderful and students interested in corporate law should take it. The exact position a professor chooses for the clinic to advocate is wholly irrelevant to the question of whether the clinic should exist, and Bebchuk should no more be criticized by the Shareholder Rights Project than if Stephen Bainbridge set up a Defense of Board of Directors Primacy clinical.

This post is cross-posted on our Philadelphia Priest Abuse Trial Blog, where investigative reporter Ralph Cipriano is covering the criminal trial of Monsignor Lynn.

From the war on drugs to criminal copyright infringement, a number of commentators, legal scholars, politicians and even sitting judges have criticized the breadth of American criminal law, like the prevalence of non-violent or “victimless” crimes that don’t have a direct victim, and the Draconian mandatory penalties that are meted out, even where the judge and jury applying those laws think that less severe penalties would be appropriate. As a consequence of this “overcriminalization,” the United States has by far the highest incarceration rate in the world, so that, with only five percent of the world’s population, we nonetheless have twenty-five percent of its prisoners, most of them imprisoned for non-violent offenses, typically drug offenses.

Historically, and continuing to the present, there have been two glaring exceptions to this expansion of criminality: abuse within the family (whether spousal abuse or child abuse) and criminal conduct by large institutions (like corporations, universities, or churches), both of which have generally gone unpunished, without prosecution, and without even investigation. Child abuse was not considered a crime until the 1870s, when Mary Connolly was prosecuted for “attacking her foster child with a pair of scissors and repeatedly beating her with a rawhide whip and cane.” (Quote from the Logan article discussed below.) She was convicted, and after that various “children’s guardian” boards were created. The prosecution of child abuse, however, remained rare until the 1960s, when new mandatory reporting laws were enacted that required healthcare professionals to report suspicions of child abuse to government authorities.  Similarly, in the 1980s, public awareness of the sexual abuse of children increased dramatically, so that today child abuse prosecutions are no longer the rare, newsworthy events that they once were.

Prosecutions of crimes that occur within the context of a large institution are even less common than prosecutions for spousal abuse or child abuse, and they even more rarely result in a conviction. Outside of a handful of prominent examples — like Bernie Madoff and Jeffrey Skilling — financial institution fraud prosecutions have fallen over the past 20 years, down to under 1,400 a year across the entire country. Many prosecutions of alleged crimes that occurred inside a corporation with the knowledge of other employees, like the prosecution of GlaxoSmithKline associate counsel Lauren Stevens, ended in failure, dismissed prior to a jury ruling.

Clergy abuse implicates both tendencies in American law — the reluctance to prosecute child abuse by people close to the family and the preference for letting institutions resolve problems “internally” — by virtue of the church’s role in society, in communities, and in families. In a law review article published in 2003 in the Harvard Civil Rights and Civil Liberties Law Review, Professor Wayne A. Logan of Florida State University’s College of Law tied these issues together under the framework of “criminal law sanctuaries,” going all the way back to the role of the church in the middle ages in serving as a “sanctuary” that would shield accused criminals from prosecution. 

As advocates for abuse survivors rightly point out, criminal prosecutions for abuse represent just the tip of the iceberg, because they require both the reporting of the alleged abuse to the authorities — which only happens in a small fraction of abuse cases — and the decision by the prosecutor to move forward with the case, which also only happens in a fraction of the cases that come to them, given the high “beyond a reasonable doubt” burden of proof required for criminal convictions in the United States. The “sanctuary” factor of churches may make it even less likely that victims of sexual abuse will report the crimes or that the crimes will be prosecuted.

Here in Pennsylvania, the indictment of former Penn State Assistant Coach Jerry Sandusky for nearly a dozen allegations of repeatedly abusing children under the care of his “Second Mile” charity brought many of these issues relating to “internal” handling of crimes back into the public spotlight.  Of particular relevance to the Lynn prosecution, Sandusky was not indicted alone, but was indicted alongside two PSU Football Team administrators who allegedly knew about, but failed to report, the abuse. Although the two PSU administrators, Tim Curley and Gary Schultz, were indicted under the specific mandatory reporting law (which some lawyers have argued doesn’t apply to them), while Monsignor Lynn was indicted under the more general endangering the welfare of a child law, the two cases bear more than a passing similarity.

Pennsylvania’s “endangering the welfare of children” law, 18 Pa.C.S. § 4304 said that:

A parent, guardian or other person supervising the welfare of a child under 18 years of age* commits an offense if he knowingly endangers the welfare of the child by violating a duty of care, protection or support.

(As a result of the Catholic church abuse scandals, a 2006 amendment added at * the phrase, “or a person that employs or supervises such a person”, but that can’t be used against Lynn for allegations before 2006.)

There is little doubt that the priests directly supervising children at the church fall within that definition, but Monsignor Lynn is in a different position from them, raising questions as to whether or not he has “a duty of care, protection or support” to the abused children. As the Pennsylvania Superior Court said years ago, “The Crimes Code nowhere defines this duty,” Commonwealth v. Barnhart, 497 A. 2d 616 (Pa. Super. Ct. 1985), and it has never before been applied against a supervisor of an abuser. In Commonwealth v. Halye, 719 A. 2d 763 (Pa. Super. Ct. 1998), the Superior Court overturned the child endangerment conviction of a victim’s uncle who had sexually abused his nephew because “No testimony was presented to indicate that Appellant was asked to supervise the children or that such a role was expected of him.” Then again, the Superior Court has also said “the common sense of the community should be considered when interpreting the language of the statute.” Commonwealth v. Brown, 721 A.2d 1105, 1106-07 (Pa.Super.1998). Do you think the “common sense of the community” implies a duty on supervising clergy to prevent child abuse?

The Philadelphia District Attorney’s Office obviously believes Lynn did have “a duty of care, protection or support” by virtue of his position as those priests’ supervisor and the person charged by the Archdiocese with investigating these allegations. They also believe they’ll be able to prove, as required by the case law interpreting the child endangerment act, that Lynn had the mens rea, or the “guilty mindset,” to warrant criminal punishment:

1) the accused must be aware of … her duty to protect the child; 2) the accused must be aware that the child is in circumstances that could threaten the child’s physical or psychological welfare; and 3) the accused either must have failed to act or must have taken action so lame or meager that such actions cannot reasonably be expected to protect the child’s welfare.

The mens rea required for [Section 4304] is a knowing violation of the accused’s duty of care to the minor-victim. Often, intent cannot be proven directly but must be inferred from examination of the facts and circumstances of the case. Therefore, the Commonwealth is not required to provide direct proof of Appellee’s frame of mind. Instead, the Commonwealth can demonstrate its case through circumstantial evidence. We can look at the totality of the circumstances to determine if Appellant’s actions gave rise to a reasonable inference of the requisite mens rea.

Commonwealth v. Winger, 957 A. 2d 325 (Pa. Super. Ct. 2008)(quotations and citations omitted). Nonetheless, the question is up for factual and legal debate, and Monsignor Lynn has already tried to dismiss the charges on the basis that he did not have a duty to report the abuse.

For now, the issue is just that: an issue. The prosecutors and Lynn’s lawyers will continue to vigorously debate this issue, including the specific wording the jury will hear when they are instructed on the elements of endangering the welfare of a child.  If Lynn is convicted, there is no doubt that one of his first issues on appeal will be whether he owed any duty at all to the children later abused by the priests he protected.

All of which raises a more general issue outside of this particular prosecution.  As the Catholic law blog Mirror of Justice describes:

How the respective courts and juries respond to these charges will likely influence the future decisions of prosecutors. These decisions will also, no doubt, be influenced by how well dioceses are doing in actually fulfilling their obligation to protect the children of their parishes. The role of the ‘institution’ in abuse and its cover up is one critical to explore as we grapple with the reality of child sexual abuse in our culture.

On the most basic level, we as a society should be asking ourselves if we should continue to have these debates about whether a duty exists, or if we should alter the reporting or child endangerment statutes to explicitly cover people in situations similar to Lynn’s. Few would dispute that, if the allegations against Monsignor Lynn are true, then he had moral and ethical duties to report the abuse to the police so that it could be stopped.  The question is why we wouldn’t impose a legal duty upon him as well.

Once you’ve been a trial lawyer for long enough, there are some consumer products you just don’t look at the same anymore, because you’ve heard about them too many times from other trial lawyers or because you’ve sat across a conference table from someone telling you about the worst thing that ever happened to their family. ATVs cause a death or two every day. Gas cans without a flame arrestor or a spill-proof lid severely burn a child under six years old every day or two. Trampolines send 275 kids and teenagers to the emergency room with serious injuries every day.

So it goes with tire failures, which cause a death or two a day, and 15-passenger vans, which have a fatal crash or two every week. Tire blowouts and tread separation are so common, and passenger vans so prone to rollovers, that, when I saw the main characters in Inception get into a Ford E-Series, I instinctively thought, “they’re going to roll it.” (Sure enough, they did, though in fairness to the van, they were being rammed.)

Last week, the National Highway Traffic Safety Administration (NHTSA) sent out a well-meaning press release warning “colleges, church groups, and other users of 15-passenger vans” to take additional precautions, because:

Recognizing that 15-passenger vans are particularly sensitive to loading, the agency warns users never to overload these vehicles under any circumstances. NHTSA research shows overloading 15-passenger vans both increases rollover risk and makes the vehicle more unstable in any handling maneuvers.

Tire pressure can vary on front and back tires that are used for 15-passenger vans. This is why the agency urges vehicle users to make certain the vans have appropriately-sized and load rated tires that are properly inflated before every trip. Taking into account the fact that tires degrade over time, NHTSA recommends that spare tires not be used as replacements for worn tires. In fact, many tire manufacturers recommend that tires older than 10 years not be used at all.

It’s those last two sentences that drive trial lawyers like me bonkers. The NHTSA knows that’s a grossly inadequate warning and knows most consumers have no idea about the real danger of tire failure or how to prevent it. Old tires and their propensity towards tread separation and blowout are a simple scientific fact, but the $30 billion tire industry, the NHTSA, and some courts have all resisted accepting it for years.

Nudged forward by the Bridgestone / Ford Explorer tragedies, the NHTSA in August 2007 finally published its report on tire aging and accidents, but frustratingly concluded only that “NHTSA’s research supports the conclusion that the age of a tire, along with factors such as average air temperature and inflation, plays some role in the likelihood of its failure,” without making any real conclusions. They’ve initiated a follow-up study.

The car manufacturers, though, have long since distanced themselves from the idea that tires can last forever, or that the only time that matters is “time in service.” The ten year expiration date referenced by the NHTSA is what the tire manufacturers begrudgingly admit to, but the real figure from the car manufacturers is six years. Ford, Chrysler, Nissan, BMW, Mercedes-Benz, Volkswagen and Toyota all say six years. I don’t know of any car manufacturer willing to recommend a longer date.

Why not? Because they know tires after six years, particularly in hot climates, will oxidize and break down, so that the glue holding the tire together starts to degrade, making tread separation far more likely. Car companies may or may not make safety job #1, but they sure do respond to lawsuits, and the more times they get hit with multi-million dollar verdicts for knowingly having defective tires on their vehicles, the more likely they are to do something about it.

Yet, apparently there haven’t been enough lawsuits, because there are still tens of thousands of expired and dangerous tires out there. As Rich Newsome noted while discussing a Yokohama recall, the danger is a matter of high-school chemistry: 

I remember when I finally had the chance to take the corporate representative’s deposition who had been designated by the manufacturer to talk about why the tire failed. The guy was an engineer and had some background in polymer chemistry. Having been briefed by my expert, we started to talk about rubber, and how natural rubber consists of long molecules that make it springy. He admitted – surprisingly – that the problem with rubber molecules is that oxygen makes them break apart.

It’s sort of like when I was a kid, we used to play with wooden paddle toys that had a rubber band attached to a red ball. I remember leaving one of those out outside on our driveway in front of our house for a few days. The hot summer Florida sun baked the rubber band over the course of several days, and when I picked it up and tried to use the paddleball toy, the rubber band snapped. The reason the rubber band broke was because heat and oxygen had broken down the molecules in the rubber band making it brittle. This process is called oxidation, which rubber manufacturers have known about for almost as long as they have been making rubber. The problem is, the manufacturers never tell consumers that this same process brakes down the rubber in tires and leads to tread separations as tires get older, especially in hot parts of the country.  That’s why every year here in Florida, when it starts to get hot in spring and summer, we have hundreds and hundreds of tread separations on our highways.  Many of which cause major crashes.

Indeed, the NHTSA’s own review of insurance claims data found that insurers “reported that 27 percent of its policy holders are from Texas, California, Louisiana, Florida, and Arizona, but 77 percent of the tire claims came from these states and 84 percent of these were for tires over 6 years old.” It’s no surprise that the hot, large states have a disproportionate share of tire failures, and that tires over 6 years old account for more than 4 in 5 tire claims, but still the NHTSA says they need more time and research.

Outside of the United States, though, nobody seriously questions that tires degrade over time: the British Rubber Manufacturers Association “strongly recommends that unused tyres should not be put into service if they are over 6 years old and that all tyres should be replaced 10 years from the date of their manufacture.” Here in the United States, though, high-school chemistry is treated by some courts as junk science.

Interestingly, in many states the core court opinions in the scientific basis for expert testimony come from tread separation cases. See, e.g., Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999)(applying Daubert to minivan tread separation and tire blowout case, and affirming ridiculous trial court opinion that a mechanical engineer with an MSME who had worked in polyesters at Celanese Plastics, tire design and failure testing at Michelin, and then accident reconstruction and tire failure at S.E.A. Inc. was incompetent to testify about tire failures); Cooper Tire & Rubber Co. v. Mendez, 204 S.W. 3d 797 (Texas 2006)(overturning $11 million verdict in a minivan tire tread separation lawsuit by bending over backwards to throw out the testimony of a former Dunlop engineer who used to examine tires that failed for the company, a professional engineer with degrees in metallurgy and engineering, and a polymer scientist, all of whom testified for the plaintiff that the tire was defectively manufactured with wax in the rubber compound).

The problem isn’t trivial; it’s not like the tire tread falls off and you slowly and safely pull off the road. As the NHTSA found in simulations of tire separations, even a driver who knows they’re going to experience a tread separation usually can’t control their vehicle when it happens, particularly if the tread separation involves one of the rear tires.

As I’ve mentioned before, warning labels tend to get the tort reform crowd into a huff, even though they tend to cost almost nothing and save lives. And that’s the chief problem with old tires.

A few days ago at the grocery store I bought a bottle of water, which had an easy-to-read expiration date on the top, and a bottle of shampoo, which had an RFID radio tag stuck on the side to prevent shoplifting. You know what happens if I drink the bottle of water after it expires? Nothing. You know how much that bottle of shampoo cost, so that it was worth putting an RFID tag on it? Less than five bucks.

But if I want to figure out how old my tires are or if they’ve been recalled, I have to decode the DOT number, and even then I can’t be sure what decade the tire was made in — the best advice for that again comes from the British Tyre Manufacturers’ Association, which tells you to look for cracks in the sideway or tread distortion. The NHTSA website tells you, in contrast, “there is no standard test to assess the serviceability of a tire,” thereby discouraging consumers from even looking for problems.

If I want to know if a tire is recalled, I have to click through the NHTSA website. The vast majority of tires are not properly registered, and so it’s little wonder that 4 in 5 recalled tires are not actually returned and so stay on the road. If manufacturers did nothing more than stick cheap RFIDs in their tires, mechanics could figure out if any of a car’s tires were recalled in one quick sweep with a cheap RFID transmitter.

You would think that tire manufacturers, even if they weren’t looking out for customer safety, would at least want consumers to buy more new tires, and so would voluntarily put expiration dates on tires, and would ask that the NHTSA make their competitors do it, too. But the invisible hand of the free market often has a trick up its sleeve, and here that’s the inventory: hundreds of thousands of old tires that the manufacturers and retailers would rather sell, even at a loss, than discard. So they keep selling these old, brittle, decaying tires.

I’m certainly not the first to complain about these issues, which Sean Kane, among others, has been hammering on for years, but the fact that it’s still a problem with no solution in sight is a disgrace.

I’ve written a couple times before about the Lago Agrio / Chevron litigation in Ecuador, from questioning why the plaintiffs’ political tactics drew so much criticism but the same standard wasn’t applied to Chevron to commenting on how one side won an appeal by ignoring the Supreme Court’s advice on how to write a brief. It’s a fascinating case not because it’s a David–versus–Goliath battle, as these plaintiffs are backed by a hedge fund, but because of the wide variety of important issues the case raises.

This post isn’t really about the case, though. Anyone who cares to follow the case need only follow Letters Blogatory’s Lago Agrio tag. This post is about one of the important issues raised by the case: where does due process end?

The phrase “due process of law” first appeared in a version of the Magna Carta published more than a century after the original Magna Carta was enacted, with “due process of law” roughly replacing the phrase “lawful judgment of his equals or by the law of the land.” The phrase, however, didn’t mean much in the practice of British law, which is why James Madison, who drafted the due process clause found in the Fifth Amendment, said that the phrase wasn’t by itself sufficient to protect any of the “great rights” like trial by jury, freedom of the press, or “liberty of conscience.” That’s part of why we have those First, Fourth, Sixth, and Seventh Amendments, too.

“Due process” encapsulates the very essence of the rule of law, and so the phrase has shaped American law for generations. As every lawyer learned in their Constitutional Law class back in law school — but which is rarely discussed outside of the legal profession — there are two types of due process, procedural due process which defines the steps the government has to take before criminally punishing you or enforcing a civil judgment against you, and substantive due process, which reflects the rights so fundamental to individual freedom that no procedure could adequately justify their taking.

Substantive due process occupies far more of our national debate because it touches upon the perennial obsessions about reproductive rights and homosexuality. But, as a matter of the application of law, procedural due process touches upon far more lives on a daily basis. In the court system, procedural due process — and the specific procedural protections Madison spelled out for criminal prosecutions in the Sixth Amendment (speedy trial, right to counsel, etc) and civil lawsuits in the Seventh Amendment (jury trial, rules of common law) — touches upon every criminal case from the moment of an arrest and every civil lawsuit from the moment it is filed.

It is sometimes, for example, a violation of due process to apply principles of estoppel to parties that weren’t a party to civil litigation in the first place. Blonder-Tongue Labs., Inc. v. Univ. of Ill. Found., 402 U.S. 313, 329, 91 S.Ct. 1434, 28 L.Ed.2d 788 (1971) (“Some litigants—those who never appeared in a prior action—may not be collaterally estopped without litigating the issue. . . . Due process prohibits estopping them despite one or more existing adjudications of the identical issue which stand squarely against their position.”). Similarly, just earlier this week the Supreme Court held that it was a violation of the Sixth Amendment for a criminal defendant to have ineffective assistance of counsel while plea bargaining.

But it’s due process, not limitless process. At some point the court system has rightly or wrongly reached its conclusion. 

When the defense lawyers for Keystone Health were sanctioned for deliberately thwarting discovery in a case alleging the health insurer systematically cheated doctors, the Third Circuit found the conduct sanctionable, but refused to allow the District Court to enter the sanctions:

Ordinarily, we would remand the case to the District Court to allow it to apply the “substantial justification” standard to sanctions under Rules 26(g) and 37(c)(1) and to undertake a more specific and individualized analysis under 28 U.S.C. § 1927 and Local Rule 83.6.1. However, in this situation, where the parties have settled the matter of the attorneys’ fees, there is no reason to remand. It is time the tumult in the legal community caused by this case came to an end.

Similarly, when the Winklevoss twins sought to undo their settlement with Mark Zuckerberg, alleging the settlement was procured by fraudulently stating the value of Facebook shares, the Ninth Circuit affirmed the District Court’s refusal to re-open the settlement, holding:

The Winklevosses are not the first parties bested by a competitor who then seek to gain through litigation what they were unable to achieve in the marketplace. And the courts might have obliged, had the Winklevosses not settled their dispute and signed a release of all claims against Facebook. With the help of a team of lawyers and a financial advisor, they made a deal that appears quite favorable in light of recent market activity For whatever reason, they now want to back out. Like the district court, we see no basis for allowing them to do so. At some point, litigation must come to an end. That point has now been reached.

As I’ve mentioned before, I appreciate it when judges state the real reasons for their holdings, and I appreciate that the Third Circuit and the Ninth Circuit both plainly stating that they ended the cases because they felt, respectively, that “It is time the tumult in the legal community caused by this case came to an end” and “At some point, litigation must come to an end.” It is a painful rationale for a party to hear, but in some cases it is the right decision.

If you’re a major oil company it seems that litigation can continue until you win, which brings us back to Chevron. The litigation has gone through plenty of twists and turns since the Ecuadorian trial court entered an $18.2 billion judgment against Chevron. Chevron has fought vigorously in New York federal courts — the same courts where the litigation was first filed by the plaintiffs, but moved at Chevron’s request to Ecuador — to have the Ecuadorian judgment rendered unenforceable. As but one part of their strategy, Chevron has sued the plaintiffs and their lawyers, and have demanded both an expedited trial and a pre-trial “attachment” order that would hold the judgment itself as collateral for the judgment Chevron expects to win against the plaintiffs. (It would be an overstatement to call this sort of pre-trial attachment “rare,” but the presiding judge has indicated he is seriously considering it.)

The recent chatter was over a paid-for amicus brief and blog post at Opinio Juris by Doug Cassel, a human rights litigator and law professor, arguing that, indeed, the Ecuadorian judgment was likely procured by fraud. Cassel concludes:

In an open letter to the human rights community, I set forth these concerns at greater length. Plaintiffs’ lawyers now accuse me (and previously the arbitral tribunal members) of abandoning principle for lucre — without mentioning the millions in fees they stand to gain if the “judgment” stands (or the several-hundred-million dollar bonus the judgment awards to their NGO).

Most important, the credibility of the human rights movement is at stake. We cannot vindicate human rights by violating them. The ends — securing reparations — do not justify the means: sham judicial proceedings.

In my opinion, this argument is irrelevant. Texaco / Chevron demanded the litigation be moved to Ecuador, and so they were bound by that decision, whether it worked out for them or not. As I wrote in the comments on Opinio Juris:

If the lawsuit had stayed in New York, the plaintiffs lost at trial and filed an appeal, and then they asked a court in Ecuador for a mulligan while the US appeal was still underway, they would be rightly derided as attempting a collateral attack on the judgment of their chosen forum. Why is it different when Chevron tries the same?

Someone responded, not Cassel, but they didn’t answer the question either. Ted Folkman follows up thoughtfully on the Cassel controversy here, discussing some of the details about the estoppel argument and about the difference between fraud in the trial court and fraud in the Ecuadorian justice system as a whole. I’m sure there are arguments to be made there for Chevron: look closely enough at any legal issue and, much like in quantum mechanics, the lines become blurry.

But I still can’t get past the fact that “at some point, litigation must come to an end.” I can’t get by what happened in Grider, and Winklevoss, and in the Anderson case at the heart of A Civil Action, and a million other cases in which the courts held that enough was enough, that all the procedural safeguards we can reasonably offer had been exercised and it was time for the litigation to end.

The Lago Agrio plaintiffs sought relief from the courts of the United States, where Chevron was based. Chevron, in turn, argued successfully that the case must be heard in the courts of Ecuador, and promised to abide by the result. In that time Ecuador has not suffered a coup or a radical restructuring of its government; whatever was the possibility of judicial corruption there — or here in the United States — back when the litigation was moved, it was just as apparent then as now. When Chevron asked for the litigation to move to Chevron, they asked for the whole system, not just the parts they liked, and they are right now also availing themselves of the Ecuadorian appellate procedures. That is the due process they requested in the first place; the plaintiffs wanted the due process of the United States.

At some point, litigation must come to an end, and this litigation should end in Ecuador, the venue Chevron demanded.