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| Lawsuit Lollapalooza | | Date Created: Mar 27, 2005, 12:26 PM |
 Nice article in the latest issue of The American Enterprise and a chance to plug this excellent magazine. There's also a nice short piece on the problem of Ward Churchill.
Let's see if I can excerpt this effort by William Tucker and Michael Greve. Find the full version here.
Lawsuit Lollapalooza -- Meet the Mad Lawyers, Mad Doctors, and Mad Money of Madison County
By William Tucker
Today the county seat, Edwardsville, is home to only 21,000 people, and the surrounding county has been through a wrenching de-industrialization. Yet the county's civil courts are expanding so rapidly that the entire criminal court system is about to move to a new three-story building two blocks away in order to open up more room in the sprawling main courthouse for non-criminal trials.
You see, lawsuits are the major industry in Madison County. Business is good... Lawyers act as the new captains of industry...
But 160 doctors have left Madison and neighboring St. Clair Counties over the last two years.
Madison County, Illinois has been called "the nation's leading judicial hellhole" by the U.S. Chamber of Commerce. Nothing much is made here any more, yet money continues to pour in from around the country. Because Madison, as one local wryly observes, has become a center of the "wealth extraction economy."
...Claims could be filed in any jurisdiction where the railroad did business. Since just about every railroad in the country had lines that wound through Madison, injured persons were eligible to file there--and the judges of Madison County had proven themselves particularly favorable to such appeals. Word of easy judges travels fast.
...Illinois elects its judges, like half the states, and Madison's hard one-party cast gave its judiciary a distinct flavor. Even today, county judges proudly proclaim that their mission is to right grievances--across the entire country.
...Judge Nicholas Byron: "You know, as a result of certain events that have occurred, and most of them concern me, I have come to certain revelations." "I want this on the record...I am not a Madison County judge.... I am concerned with all Americans. And you know what? ...I am going to expand the concept that all courts in the United States are for all citizens of the United States.... Motion denied."
The tort industry
America's lawsuit industry can be divided into three spheres. First there are personal injury suits against large corporations for the products they manufacture. Second, there are medical malpractice claims against doctors and hospitals. Finally there are "class actions," which involve taking large numbers of individual claims and combining them into one giant procedure before a judge willing to "certify" the legitimacy of the claims. Fifty years ago, plaintiff attorneys who specialized in such claims were a bottom-rung contingent of the trial bar, generally dismissed by their peers as "sore-back lawyers."
..."Tort" is the legal term for a damaging action for which one can be held liable. Tort law--like many other parts of the legal profession--changed drastically in the 1960s. The revolt began in academia, where Yale law professor Fleming James crusaded for expanded workplace liability so that employers would be responsible for every accident, regardless of fault. James "conceived the principal function of tort law to be, not the resolution of disputes...or the expression of moral values, but compensation of the injured," in the words of George Priest, John Olin Professor of Law and Economics and Yale Law School...Soon, legal academics had convinced many judges and attorneys that even if a manufacturer or individual "has exercised all possible care in the preparation and sale of his product," a doctrine of "strict liability" should hold him responsible for any harm that comes from using the product ... Last year about 1,500 new claims for mesothelioma were filed in the United States. Of these, almost one third were filed in Madison County, of which 80 percent were filed by a single law firm, SimmonsCooper.
Asbestos litigation in Madison County really took off in 2000 when Randall Bono, an Illinois Circuit Court judge, stepped down to become the lead counsel in an asbestos case. Less than two months later, a Madison County jury awarded his client $34 million from Shell Oil for a case of mesothelioma. Bono has since joined the SimmonsCooper firm.
In person, Bono is charming, friendly, disarming. One of the revelations of interviewing plaintiff attorneys is that they are all lively and gregarious, real American characters. The defense attorneys working for most businesses tend to be a solemn bunch.
"Asbestos is the most heinous crime ever committed by corporate America," says Bono. "Just sit for five minutes with someone dying of mesothelioma and you'll know what I mean. Madison County is one of the few places in America where corporations don't rule and where asbestos victims can get justice."
...The reason Bono is able to play footsie with desperate defendants is because he has already gone to trial with two of them. After he won the $34 million award against Shell in 2003, defendants only challenged him once more. In 2003 he won $250 million from U.S. Steel for a 71-year-old mill worker who contracted mesothelioma in Gary, Indiana. Since then, defendants have been more than anxious to settle.
Medical lawsuits hit home
Medical malpractice, the second leg of the tort triumvirate, is practiced mostly by smaller firms and individual attorneys in Madison County. The number of suits is lower. But cumulatively, the effects are also large. "There are so many lawyers here, you can't help but have a lot of malpractice suits, even if the plaintiffs don't win too many of them," says Foreman, of the Chamber. Doctors and hospitals are local businesses, and socking them with huge damage awards brings visible costs.
As a result, Madison County has its own medical crisis...Lawyers argue that the doctor crisis is a fabrication, or that it's all the insurance companies' fault. But local public opinion is turning.
Class action central
Class actions are the third leg of the lawsuit trilogy. In some respects, class actions are legitimate and useful strategies, allowing nearly identical grievances such as widespread asbestos damage or hiring practices by major employers to be consolidated into a single procedure rather than being tried on a case-by-case basis.
Using the mathematics of class actions, however, some law firms have become experts at filing claims over seemingly insignificant grievances--sometimes involving literally pennies --and pursuing actions that have no meaning to plaintiffs but promise millions of dollars in attorneys' fees...
"Lawyers are definitely initiating these suits," admits Carr. "But that's because they'd never be worth bringing for individual customers. When you roll them up into one big ball, you do a tremendous social good. You prevent these giant corporations from defrauding people and teach them not to do it again."
Typically, beneficiaries of such class action suits get piddling sums, often nothing more than a discount on their next purchase. The majority may never bother to collect. The lawyers who engineer these suits, however, take their one-third contingency fees in cold cash. The Class Action Reform Act will seek to curb such suits by removing most of them to federal courts.
What has distinguished Madison County judges is their willingness to certify class actions...The Madison County legal mafia pulled out all the stops in 2004 with a class action against Philip Morris. Judge Byron himself delivered a $12 billion verdict, deciding that Illinois smokers had been defrauded by the marketing of Marlboro Lights. The cigarette has a filter that makes them harder to inhale, aimed at reducing tar and nicotine consumption. Experts brought in by the lawyers insisted that smokers usually just smoke more of them to get to their nicotine comfort level.
Judge Byron arrived at his $12 billion penalty by accepting a plaintiff's claim that smokers would demand a 92 percent discount to buy Marlboro Lights over some (non-existent) cigarette that was not just hard to draw on but actually contained less tar and nicotine. He took the amount of money Illinois smokers put down over the last two decades for Marlboro Lights and decided that 92 percent of it should be returned to customers.
The judge stipulated that any amount left unclaimed by consumers (which could easily be half the amount) should go to 11 Illinois law schools, as well as drug courts, domestic violence programs, legal-aid organizations, and the Illinois Bar Foundation. In the process, he inspired the law schools and the bar association to file numerous briefs in support of his verdict. Judge Byron also tacked on $3 billion in punitive damages that will go directly to the state of Illinois--after the local team of lawyers gets a cool $1 billion, of course.
..Even Carol Foreman, the local Chamber of Commerce director, spends the better part of an hour declaring that, as far as the business community is concerned, Madison County courts are perfectly under control these days. "We're striving to be bi-partisan," she says. Then she takes a sidelong glance around her office. "Of course you've got to be careful about what you say around here," she adds in a low voice. "You never know when somebody might sue you."
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