I wanted to follow up my last post on Obama and tort reform with several new stories on the issue.

The National Law Journal has a story out today looking at proposed changes to the legal system.  Among the items that they predict will get a look under the new administration are bills eliminating binding pre-dispute arbitration agreements, preemption, and pro-employee changes to employment litigation.

Bill Childs over at TortsProf also has a look at the Obama administration and preemption.

Jane Genova asks whether Emanuel can keep Obama from tilting left on tort reform.

Saturday, the AP also had a story out about potential Obama judicial appointments. 

Saturday's Houston Chronicle looks at several legal system changes that might result from the Obama administration, including preemption, Guantanamo Bay trials, and judicial appointments.

I'm obviously interested in this topic so I may try and keep the updates coming, time permitting.

UPDATE:

Another look at Rahm Emanuel's record, from Point of Law.  Sorry for missing that Walter.

One of the hottest topics in the personal injury arena right now is preemption. Generally, the argument for preemption is that if a product complies with federal regulations relating to the safety of that product  (even if the regulations are not adequate) then manufacturers should be completely immune from state tort lawsuits based on defects on that product because the federal law trumps state law.

Next Monday, the U.S. Supreme Court will hear the case of Wyeth v. Levine. In that case, the drug manufacturer and the U.S. Food and Drug Administration, with the consent of the Bush Administration, will argue that federal drug-approval and warning-label standards should trump stricter state law liability claims.  The plaintiff won a multi-million judgment after arguing that the drug she was using didn't warn that gangrene was a side effect.  (The plaintiff, a musician, eventually lost her arm to gangrene.)  The manufacturer argues that they are entitled to complete immunity because the federal regulations don't require them to warn of gangrene.    

Prior to the Bush Administration, the FDA had taken the position that state tort laws worked in concert with regulations and provided an extra protection for consumers. The effort for preemption, not just with the FDA, but with almost all regulatory agencies, has been pushed by the Bush Administration as a long-term form of tort reform. The Bush Administration has urged the adoption of over 50 regulations that encourage preemption.

Yesterday, several FDA documents were released showing that even senior members of the FDA knew the dangers of preemption. John Jenkins, the top official in the FDA drug approval section, wrote in 2003:

Much of the argument for why we are proposing to invoke pre-emption seems to be based on a false assumption that the FDA approved labeling is fully accurate and up-to-date in a real time basis.

The report that included the preemption memos concludes:

FDA has an obligation to ensure the safety and effectiveness of drugs. In this case, however, the internal documents indicate that the Bush Administration weakened important drug safety regulations to shield manufacturers from liability. This is a serious abuse of the agency’s publich health authorities.

One other story notes that the memos were forwarded to the FDA’s chief counsel, who is now the general counsel for pharmaceutical giant Glaxo-Smith-Kline.

To read more on preemption, check out:

• Get Out of Jail Free:  How the Bush Administration Helps Corporations Escape Liability (AAJ)
• Preemption v Preemption v Preemption  (Turkewitz)

This morning's New York Times had a discouraging piece detailing President Bush's judicial appointees.  In the article, President Bush noted that "he had appointed more than a third of the federal judiciary expected to be serving when he leaves office, a lifetime-tenured force that will influence society for decades and that represents one of his most enduring accomplishments."

What does that mean to our clients?  While there are many Bush appointees that are good judges, including at least one judge in the Austin Division, Bush's appointees "have been moer likely than their colleagues to favor corporations over regulators and people alleging discrimination, and to favor government over people who claim rights violations.  They have also been more likely to throw out cases on technical grounds, like rejecting plaintiffs' standing to sue."

We don't see it so much in the trial courts here, which are very good.  But it seems that ruling after ruling comes down from the Fifth Circuit, which governs Texas, that make helping people that much more difficult.

The judiciary is also an important factor in the upcoming presidential election.  As the article continues:

An Obama victory could roll back the Republican advantage on the appeals courts and even create a Democratic majority by 2013, according to a study of potential vacancies by Russell Wheeler of the Brookings Institution. But if Mr. McCain wins, Republicans could achieve commanding majorities on all 13 circuits.

Regardless of what happens, we'll still be out there fighting the battles for the public's rights.

A few weeks ago, I wrote about a dispute that was coming to a head in the Texas Third Court of Appeals, which is housed in Austin.  The dispute involved the criminal case against Tom Delay and his business associates.  The Third Court issued a ruling in the criminal case that was very favorable to Delay and the defendants.

After the decision was handed down, Travis County District Attorney Ronnie Earle filed a Motion to Recuse, asking one of the judges to be removed.  The judge had formerly represented Texans for Lawsuit Reform, which involved many of the same players as the criminal case, and had allegedly made disparaging remarks about a civil suit that was based on the similar facts as the criminal case that was at issue.  Based on that history, Earle asked that the judge recuse himself or be removed from the case.

Last week, the Third Court handed down an order denying the motion.  The order was issued without the benefit of an opinion.  So the claim is over, right?  Not so.

Yesterday, the Austin American Statesman, had an article that contained allegations from Justice Jan Patterson, one of the justices on the Third Court, that she wanted to issue a dissenting opinion but that Chief Justice Ken Law had ordered the clerk of the court not to accept the dissent.  Justice Patterson filed a petition with the Texas Supreme Court seeking an order requiring the release of her dissenting opinion.

Today, the Statesman had another article and Justice Law claims that he has no problem releasing the dissent, but that Justice Patterson failed to circulate the order per court rules.  (Justice Patterson has written plenty of dissenting opinions so it's not clear to me why the rules would be an issue now, but not in the other instances). 

I'm not sure how this story will play out, but it is interesting because you normally don't get this quibbling between justices in the press.

It is also interesting because Chief Justice Law is up for re-election this year, and has a tough race against Woodie Jones, who was formerly a judge on the Third Court.  In a State Bar of Texas poll of attorneys in the Third District, Judge Jones received over 85% of the vote.

Earlier this week, Jonathon Glater of the New York Times had an article that discussed how businesses use arbitration agreements.  Apparently, at a time when businesses are becoming more and more aggressive about using arbitration clauses in their contracts with consumers, they still aren't using them in business to business contracts. 

The article is based on a study performed by law professors Theodore Eisenberg (Cornell University School of Law), Geoffrey Miller (NYU School of Law), and Emily Sherwin (Cornell University School of Law).  The study was updated this summer (we had a previous post about the study's original release last year).

The study found that business included mandatory arbitration clauses in 75 percent of consumer agreements but in just 24 percent of contracts over all. The inclusion rate was up significantly from prior studies.  From the article:

Companies say that arbitration is “a fair and cost-saving process,” he [Professor Eisenberg] continued. “If they believe that is true across the board, why don’t they insist on it when they contract with each other?”

Our thoughts are available in our prior post.  The one thing that stood out in the new study was businesses use of arbitration clauses to try and kill class actions.  The article notes:

Every consumer contract with an arbitration clause also waived possible group, or class, arbitration.

“I believe they’re really using arbitration as a way of avoiding class action litigation,” said Theodore Eisenberg, a law professor at Cornell. Because it is not worth it to a single upset consumer to sue a big company, he said, “the only thing those companies fear is your having a plaintiffs’ lawyer aggregate you and people like you into a class action.”

 As we have continuously stated, we think arbitration is appropriate in many cases, but it's difficult to know what cases are appropriate for arbitration at the time the contracts are entered into.  That is particularly true in consumer cases, where consumers are asked to agree to arbitration rules that they do not understand.

There has been a really interesting story the last two days in the local paper discussing allegations of potential corruption at the Austin Court of Appeals.

First, some background.  As most know, Travis County District Attorney Ronnie Earle had indicted Tom Delay and others for violations of the Texas Election Code.  The defendants challenged the constitutionality of the statute, and that claim has been on appeal for almost two years.  Last month, the Court of Appeals finally handed down a decision finding that the statute was constitutional.  However, the court went on and included additional opinions that may make it difficult or impossible for Earle to pursue charges.  (I could only find a Lexis cite for the case so I can't do a link to the opinion.)

The statute is a confusing twist, but generally, corporations are not allowed to make political contributions in Texas except under specific circumstances.  It was not really disputed that the corporate contributions were improper.  Instead, the question was whether the individuals involved were subject to criminal liability.  As the opinion notes:

A person commits the offense of money laundering if he "conducts, supervises, or facilitates a transaction involving the proceeds of criminal activity." "Proceeds" are defined to mean "funds" acquired or derived directly or indirectly from, produced through, or realized through an act.  The statute defined "funds" to include:

(A) coin or paper money of the United States or any other country that is designated as legal tender and that circulates and is customarily used and accepted as a medium of exchange in the country of issue;

(B) United States silver certificates, United States Treasury notes, Federal Reserve System notes; and

(C) official foreign bank notes that are customarily used and accepted as a medium of exchange in a foreign country and foreign bank drafts.

The Court interpreted the the categories of items listed in the "include" section as being exhaustive and concluded that checks were not "funds".  And since the individuals were accused of passing corporate checks, then they didn't violate the statute.  (The statute has since been amended to add checks.)

While the interpretation is interesting, to say the least, the most interesting thing to me is the uproar.

Delay is obviously a Republican.  Earle is a Democrat.  And the three judges that wrote the opinion are all Republicans.  And perhaps most at issue, the judge that wrote the opinion was affliated with Texans for Lawsuit Reform, a group that includes almost all of the same players involved in this case, before his appointment to the bench by Governor Perry.

In a filing earlier this week, in a motion for an en banc hearing, Earle complained of corruption in the Court.  He wrote:

The dark shadow of corruption of our system of justice looms over this case.  Every lawyer has a duty to raise questions of corruption that go to the heart of our judicial system, and it is in the discharge of that duty that the State pursues this effort.

Those types of allegations are almost never heard in filings before the Court.  And yesterday, they were ratcheted up a notch when Earle asked  the judge that authored the opinion to recuse himself.  In that filing, Earle pointed to an article where the authoring judge discussed a civil lawsuit against almost identical parties making almost identical allegations.  In the article, the judge denigrated the civil case as "politically motivated" and suggesting that it was filed merely to "harass political opponents."

This type of discourse is fascinating in a car wreck type of manner, and I'll try to follow it here in the blog.

I also found one other item interesting.  On the recusal, the defendants argued that the prosecution waited too long to ask for a recusal.  The prosecution responded that they knew about the judge's affiliation with TLR, but didn't know about the article until recently.  One of the newspaper articles asked the question of whether the judge had an obligation to raise the issue of potential bias.  The article cited Lily Hardwick, a co-author of "Handbook of Texas Lawyers and Judicial Ethics," was of the opinion that the judge didn't have an obligation to disclose any affiliation if he felt he could have been impartial.  That strikes me as wrong.  As attorneys, we have a duty of candor to the court, but they don't have a similar duty back to us?  While I'm sure a judge thinks he can be impartial, it would be nice if those potential biases could be examined in more depth and a neutral third party could decide whether recusal was proper.

I generally try to keep things as simple as possible.  When clients ask me what to wear to court, I generally tell them to wear something that they'd be comfortable wearing to church or a wedding.  If you're a person that regurlarly wears a suit, then wear a suit.  But if you're a person that has only worn a suit once in your life, then wear something else.  The jury and judge will know that you're trying to be someone you're not.  Just keep it simple.

I thought that was pretty common sense advice and that dress shouldn't be that difficult until I read yesterday's local paper.  Apparently, some parties (particularly criminal defendants) are dressing so poorly that some of our Travis County judges feel the need to enact a dress code.  And with the judges' stories, I would too.

One judge reported on a male defendant whose pants hung so low that they eventually fell to the floor as he walked away.  Another judge told the story of a female defendant who was wearing a skirt that revealed her underwear --- from the bottom.

And then there are the stupid:  a defendant showing up for court with a spoon designed for snorting cocaine hanging around his neck or the defendant that wears a t-shirt with a marijuana leaf on the front.

Really.  My five year old would know that these are bad ideas.  What has happened to common sense? 

Lawyers aren’t the quickest to adopt technology, but those of us that litigate have been using social network sites such as LinkedIn, MySpace, and Facebook to investigate witnesses or clients for some time. And we’re probably all familiar with the reports of Dr. Flea’s blogging of his own trial. But this week, there have been two good posts/articles on the use of social networking sites in litigation.

Yesterday, the National Law Journal had an article about using social networking and internet sites to help vet jurors. Those lawyers that have actually tried a case or two know that jurors are generally nervous and don’t want to talk during voir dire. Getting them to trust you and share their views and biases is an art. But not so on the internet. People are much more candid in their blogs or social networking profiles. The article has some great anecdotes of attorneys and consultants learning crucial information from relatively easy internet searches.

Also yesterday, Kevin O’Keefe noted that reporters from the Spokane Spokesman Review and the Idaho Statesman are covering a murder trial via Twitter. Twitter seems like the perfect vehicle to keep interested parties continually updated. The thing that impressed me was the list of groups following the Twitter feed. Several other media outlets are using the Twitter reporting to keep them up to date.

The real question is "where do we go from here?" I’m not the most tech savvy guy (though I do have LinkedIn and Facebook profiles), but it’s clear that social networking is going to have drastic impact, for better or worse, on how litigation progresses. For those of you smarter than me, I’d love to hear your thoughts on these implications.

The saga of Supreme Court Justice David Medina is almost like a soap opera.  Just when you thought the story couldn't get more bizarre, it took another twist today.

For those not up to speed, here's the story in a nutshell.  The home of Texas Supreme Court Justice David Medina and his wife was burned.  After the fire, it was discovered that the Judge and his wife had some financial difficulties, and an arson investigation commenced.  Although the case was presented to a grand jury, it appeared that the prosecutors office didn't have any real interest in investigating the claim.  But the grand jury did.  And the grand jury later indicted both Judge Medina and his wife.  Almost immediately, the Harris County DA (like Judge Medina, a Republican, and also having his own political trouble) made statements that there wasn't enough evidence to pursue charges and eventually ended up dismissing the indictment.  The grand jury was so upset that members of the grand jury filed a suit seeking permission to speak about the case and tell the facts to the public.  Then, in recent weeks, the Judge's wife was re-indicted for arson.  And that's where the story stood until today.

Today's Houston Chronicle reports that Houston lawyer Frank Harmon made a call to a Houston bail bondsman and urged the bondsman to bail Justice Medina's wife out of jail.  The problem?  The attorney just happens to be involved in a major asbestos case sitting at the Supreme Court.  Harmon's firm helps represent Crown Cork & Seal Co., Inc., the defendant in the suit. 

So where will the story go in the future?  Given its past, who knows.

To read my other posts on the story, you can click here, here, here, & here.

I don't have time to make a detailed post, but the Washington Post (via the AP) had a great article today about the administration's use of administrative rulemaking authority to preempt lawsuits.  For those interested in civil justice matters, it is certainly worth a read.

I have a prior post that touches on this form of tort reform.