Cases Keep Flowing In, but the Jury Pool Is Idle – [NOTE: This is the entire article]
By ADAM LIPTAK, The New York Times
April 30, 2007
Trials are on the verge of extinction. They have been replaced by settlements and plea deals, by mediations and arbitrations and by decisions from judges based only on lawyers’ written submissions.
Federal courts conducted about 3,600 trials in civil cases last year, down from 5,800 in 1962. That is not an enormous drop — until you consider that the number of cases has quintupled in the meantime.
In percentage terms, only 1.3 percent of federal civil cases ended in trials last year, down from 11.5 percent in 1962.
The trends in criminal cases and in the state courts are broadly similar, though not always quite as striking. But it is beyond dispute that even as the number of lawyers has grown twice as fast as the population and even as the number of lawsuits has exploded, actual trials have become quite rare.
Instead of hearing testimony, ruling on objections and instructing jurors on the law, judges spend most of their time supervising the exchange of information, deciding pretrial motions and dealing with settlements and plea bargains.
There is, of course, nothing wrong with settlements, at least when they are the product of reasoned and sensible compromise between evenly matched adversaries. But trials are not disappearing simply because more cases are being settled. Instead, they are increasingly being replaced by summary judgments, in which judges evaluate evidence submitted to them on paper.
“During the last years of the 20th century, summary judgment in the federal courts moved from a small fraction of dispositions by trial to a magnitude several times greater than the number of trials,” Marc Galanter, who teaches law at the University of Wisconsin and the London School of Economics and Political Science, wrote last year in The Journal of Dispute Resolution.
Professor Galanter elaborated in an interview. “Summary judgments are being asked for in about 17 percent of cases and granted in about 9 percent,” he said, citing recent data from the Federal Judicial Center. That is a big jump from 1960, when no more than 1.8 percent of federal civil cases ended in summary judgment, according to data from the administrative office of the federal courts analyzed in a 1961 law review article.
“We’ve moved in a way to a more European way of decision-making, by looking at the court file rather than through encounters with living witnesses whose testimony is tested by cross-examination,” Professor Galanter said.
In criminal cases, the vast majority of prosecutions end in plea bargains. In an article called “Vanishing Trials, Vanishing Juries, Vanishing Constitution” in the Suffolk University Law Review last year, a federal judge questioned the fairness of the choices confronting many criminal defendants.
Those who have the temerity to “request the jury trial guaranteed them under the U.S. Constitution,” wrote the judge, William G. Young of the Federal District Court in Boston, face “savage sentences” that can be five times as long as those meted out to defendants who plead guilty and cooperate with the government.
The movement away from jury trials is not just a societal reallocation of resources or a policy choice. Rather, as Judge Young put it, it represents a disavowal of “the most stunning and successful experiment in direct popular sovereignty in all history.”
Indeed, juries were central to the framers of the Constitution, who guaranteed the right to a jury trial in criminal cases, and to the drafters of the Bill of Rights, who referred to juries in the Fifth, Sixth and Seventh Amendments. Jury trials may be expensive and time-consuming, but the jury, local and populist, is a counterweight to central authority and is as important an element in the constitutional balance as the two houses of Congress, the three branches of government and the federal system itself.
In an article titled “Why Summary Judgment Is Unconstitutional,” published last month in the Virginia Law Review, Suja A. Thomas, a law professor at the University of Cincinnati, makes the perfectly plausible argument that the procedure violates the Seventh Amendment, which reserves the job of determining the facts in civil cases to juries.
When judges decide summary judgment motions, Professor Thomas wrote, they intrude on that job. The theory of summary judgment is that judges may rule for one side or the other only after finding that no “genuine” issues of “material” fact are in dispute. They must determine, as the Supreme Court has put it, whether “a reasonable jury could return a verdict” for the party defending against a motion for summary judgment.
All of that pushes judges right up to and sometimes across the constitutional line of determining the facts for themselves.
In 2004, in the process of revitalizing the role of the jury in criminal cases, Justice Antonin Scalia of the Supreme Court wrote that there were good arguments for “leaving justice entirely in the hands of professionals.” But that is not the theory of the Constitution, he continued, which enshrined “the common-law ideal of limited state power accomplished by strict division of authority between judge and jury.”
The jury trial is a distinctively American tradition in a cultural sense, too. Almost all civil jury trials in the world take place here, and 90 percent of the criminal ones. But that tradition, which Prof. Paul Butler of George Washington University calls “as fundamental a part of our culture as jazz or rock ’n’ roll,” is dying.
I was on jury duty last week, in a state criminal court in Manhattan. During the orientation on Wednesday, a court officer, with mixed pride and hyperbole, said his was the busiest courthouse in America.
I never saw so much as the inside of a courtroom. After a couple of days of milling around in an assembly room with more than 100 other potential jurors, the State of New York thanked us for our service and sent us home.
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ABA judge election bill to be introduced
ERIC VELASCO, The Birmingham News
April 23, 2007
Bills by Alabama's chief justice to switch to nonpartisan judicial elections and fill court vacancies through appointment will get competition this week.
A bill endorsed by the Alabama Bar Association to appoint appeals-court judges will be introduced Tuesday, said Gorman Houston, a retired Alabama Supreme Court justice who heads a bar committee on the changes.
Both sets of proposals are part of an effort to reduce the cash, partisan bickering and attack ads in court races.
The $12.4 million spent in five races for Alabama Supreme Court tripled spending in any other state last year. The $7.7 million Alabama Chief Justice election was the second most-expensive court race in the nation's history.
Chief Justice Sue Bell Cobb's proposed changes are:
HB536 and SB357, which call for a constitutional amendment to allow vacancies in any trial or appeals court to be filled by appointment. A nominating commission would interview candidates and recommend three finalists for the governor to choose. The appointee would face voters and any challengers in the next general election.
HB 605, which would make elections nonpartisan for District and Circuit court judges. It only would require approval by the Legislature and governor.
As an alternative to HB605, HB474 would allow nonpartisan elections for all judges at the trial and appellate levels. It also only would require approval by the Legislature and governor.
The bills are pending in committees.
The Alabama State Bar's proposal is based on an approach used in 15 other states.
Judges on the state Supreme Court and two lower appeals courts would be appointed. But those judges would run solo in a retention election, with voters deciding on a full term.
If voters reject the judge, the nominating commission would come up with another list of three candidates for the governor to make the appointment.
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Supreme Court Justices Confront the 'Judge Judy Standard' for Judicial Pay
Tony Mauro, Legal Times
Supreme Court Justices Stephen Breyer and Samuel Alito Jr. made a strong personal plea Thursday in favor of higher judicial salaries before a House Judiciary subcommittee. Both acknowledged the issue is a hard sell, given that as low as their pay might be relative to other lawyers and even to a growing number of executive branch employees, federal judges still make more than all but 2 percent of the general public.
But with 40 judges leaving the federal bench in the last five years -- many for jobs that instantly pay four or more times their judicial salaries -- the two justices see a severe threat to judicial independence. "There is a serious risk that this job that I love becomes a stepping stone," said Breyer.
Alito highlighted the loss of senior-status judges, who used to mentor new judges like himself, but who are now leaving the bench altogether. "We are approaching a very unfortunate tipping point."
Committee members, especially Democrats, generally embraced the justices' cause. But some pushed back -- especially on the issue of "de-linking" judicial pay from that of members of Congress. Currently, district court judges are paid $165,200, the same as members of Congress. Breaking the link, growled Wisconsin Republican Rep. F. James Sensenbrenner Jr. would be tantamount to saying that judges are more important than House members.
Rep. Ric Keller, R-Fla., even made a "life isn't fair" argument against judicial raises, noting that television's Judge Judy makes $28 million a year.
Breyer agreed that "Never in my most fanciful dreams" did he expect to make as much as Judge Judy.
Alito noted that his mother is a faithful fan of the Judge Judy show. "She thinks Judge Judy does a better job than we do," Alito said with a smile.
During the hearing, Rep. Lamar Smith, R-Texas, also secured a pledge from Breyer that pending reforms in the handling of complaints of judicial misconduct would be implemented before 2008.
Breyer headed a commission that last September recommended several procedural changes, and Smith was disappointed to learn recently that a plan to implement the changes would not be available until this fall. Smith said the campaign to increase judicial pay would be helped if the judiciary made "better progress" in improving its disciplinary procedures.
Footnote: The campaign for judicial raises got some key help this week, in the form of 300 American Bar Association leaders who were on Capitol Hill to meet with members of Congress. Judicial pay was a top subject for discussion, said ABA president Karen Mathis, and reaction was positive. An increase is crucial to maintain a high-quality, independent, life-tenured judiciary, she says. "It's not life tenure anymore when judges are leaving the bench."
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Lawyers want state to extend death penalty moratorium
The Associated Press
April 23, 2007
NASHVILLE, Tenn. - A group of lawyers wants Gov. Phil Bredesen to extend a moratorium on executions beyond the May 2 deadline so that the entire death penalty process can be studied and not just the methods used to put prisoners to death.
In February, Bredesen called for a 90-day halt to executions, citing concerns about the procedures for lethal injection and electrocution. The decision postponed four scheduled executions, but it didn't delay the one set for May 9 for Philip Workman, who was convicted of killing a Memphis officer during holdup.
The American Bar Association - which neither supports nor opposes the death penalty - issued a report on Monday that stated Tennessee needs to look at more than just the execution methods.
"The state of Tennessee currently does not guarantee a fair and accurate system for all capital defendants," according to the report, which was written by seven Tennessee lawyers. "The assessment team concludes that the serious problems plaguing Tennessee's death penalty system can be addressed only by means of systemic, institutional changes."
The group cited problems that include too many blacks on death row, bad lawyers representing the accused and good ones faltering under the demands of heavy caseloads.
"Gov. Bredesen clearly has given sober consideration to how executions are carried out in Tennessee," ABA President Karen J. Mathis said in a news release. "Now it is time for him and for the state as a whole to devote even more thorough analysis to how the state reaches the decision to sentence someone to death."
In announcing the moratorium, Bredesen pointed to a number of problems with the state's guidelines for putting people to death, such as the procedures not detailing standard dosage amounts for the three chemicals used during a lethal injection.
The ABA report didn't address the method of execution, but instead offered 14 recommendations for improving the death penalty system.
- Creating an independent commission to review claims of factual innocence, with power to investigate, hold hearings and test evidence.
- Creating an independent statewide authority to appoint, train and monitor defense, appellate and post-conviction lawyers in capital cases.
- Developing statewide protocols to standardize decisions about which cases are charged as a capital crimes.
- Requiring preservation and storage of all biological evidence in capital cases as long as the defendant remains incarcerated.
While Mathis called on Bredesen to extend the moratorium beyond the three months, state officials said they still hope to meet the deadline for devising new execution procedures.
"We are still waiting for the May 2 deadline and look forward to hearing from the commissioner," said Bredesen spokeswoman Lydia Lenker. "That's where we are right now."
Tennessee Department of Correction Commissioner George Little is on track to meet the deadline for the protocols, according to a spokeswoman for the prison system.
Besides Tennessee, the ABA is examining the death penalty in seven other states.
Reports have been issued on Alabama, Arizona, Florida, Georgia and Indiana. The ABA has also recommended moratoriums in those states to allow time to fix the problems identified. Ohio and Pennsylvania are scheduled to be studied next.
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Riley announces toll-free line to help seniors with legal matters
The Associated Press
April 19, 2007
MONTGOMERY, Ala. (AP) — Alabama seniors now have a place to go to get answers to many legal questions. Gov. Bob Riley says the Alabama Department of Senior Services has set up a special telephone center to assist seniors deal with legal matters.
The Alabama Elder Law Helpline aims to help seniors with wills, trusts and financial counseling. The phone line is open to individuals 60 and older from 8 a.m. to 8 p.m. weekdays and 9 a.m. until noon Saturdays.
The Senior Services agency has joined forces with Legal Services of Alabama to provide the Helpline and staff it with an attorney and paralegal.
A 300,000 dollar grant from the U.S. Administration on Aging helped fund the project.
The number is 1-866-456-3959.
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Committee sues Florida Bar, hopes for dissolution
Rachel Witkowski, Jacksonville Business Journal
April 13, 2007
The Florida Bar Association is being sued by a political action committee that wants to create a system to sanction judges.
The Florida Judicial Accountability Initiative Law for Judges, based in Arcadia, advocates amending the state constitution to remove immunity from judges and establish juries with the power to indict them. The committee recently filed a petition in the Florida Supreme Court with four claims against the Florida Bar regarding its political activity.
The claims against the Florida Bar are about editorials in its publications. The committee states in the petition that the Florida Bar "engaged in direct and indirect political activities," specifically by publishing content about J.A.I.L. for Judges. The committee claims that the Florida Bar should not be politically active because it's an arm of the state's Supreme Court and not a political action committee recognized by the Florida Department of State, Division of Elections.
"I expect the Florida Bar to be dissolved," said Montgomery Sibley, attorney for J.A.I.L. for Judges. The committee wants a new "lawful" Bar that is not engaged in political activity.
J.A.I.L. for Judges further stated in its petition that the Florida Bar should "give equal space in its publications" and should be required to register as a political action committee.
"If they are going to express an opinion, they need to be registered," said Nancy Grant, director of the committee. "Since they're not going to do that, they need to shut up."
The Florida Bar is not speaking about the suit until the Supreme Court issues an order on whether it will hear the case filed Feb. 21, said Paul Hill, general counsel. The Bar is prepared to speak if called to do so by the court.
A Florida Bar News editorial dated Jan. 15 stated that if the amendment reaches the Florida ballot, "the state's lawyers should be ready to lead a campaign to defeat it."
The amendment would create two 25-member special grand juries that could sanction judges accused of misconduct and issue fines, forfeitures or removal from the bench for third-time offenses. The program would be funded by a 2.9 percent tax on all state judges' gross salaries.
'Probably in violation'
The top state judge in Jacksonville does not expect the initiative to succeed. "Even if it gets passed on the Florida Constitution, it's probably in violation of the federal Constitution," said Fourth Judicial Circuit Court Chief Judge Donald Moran.
Hill said the Florida Bar is acting as though the amendment will make the ballot. There is a concern that fewer individuals would seek judicial office in the state if voters approve the amendment.
Sibley said the committee is working to get the 611,000 verified signatures in the state to place the amendment on the ballot in 2009.
There are attorneys in the state who support J.A.I.L. for Judges, Grant said, but they can't publicly support it because they could be disbarred.
She said the committee will come to Downtown Jacksonville soon to collect petitions in front of the Duval County Courthouse. Grant is also seeking support from at least one elected official in every county in Florida.
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Deadline nears for poster, essay contest law entries
April 16, 2007
The deadline for the 2007 Law Day Poster & Essay Contest sponsored by the Alabama State Bar is April 16 as students in grades K-12 throughout the state have begun submitting entries. Gov. Bob Riley is expected to issue a proclamation officially designating May 1st as Law Day in Alabama.
Complete information and entry forms can be found on the Alabama State Bar Web site at www.alabar.org/lawday or by calling the state bar at 800-354-6154, extension 2126, for contest entry information. The theme for the essay contest is “Assuring our Democracy through the Education of our Youth” and the theme for the poster contest is “Democracy at Work in the Juvenile Court System.”
Montgomery lawyers Thomas B. Klinner (Crumpton & Klinner), and Gregg Brantley Everett (Kaufman & Rothfeder) serve as co-chairs of the state bar's Law Day committee. The poster contest is open to grades K-6 and the essay contest is for students in grades 7-12. A total of $1500 in U.S. Savings bonds are awarded to winners. Teachers also receive a monetary gift for use in the classroom. Winners will be notified on or before April 26.
In 1958, President Dwight D. Eisenhower established May 1st as Law Day to strengthen our heritage of liberty, justice, and equality under law. This is a national day set aside to celebrate the rule of law and to underscore how law and the legal process contribute to the freedoms we share.
The Alabama State Bar is dedicated to promoting the professional responsibility, competence and satisfaction of its members; improving the administration of justice, and: increasing public understanding and respect for the law.
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Want to upend the legal system? State Bar says the gun bill will do it
The Atlanta Journal-Constitution
April 16, 2007
The most important press release of the weekend came from the State Bar of Georgia, which announced that — after a Friday emergency meeting of officers — it would oppose the latest permutation of the guns-in-parking-lots bill.
The Georgia Trial Lawyers Association had jumped in a day earlier, but that group has all sorts of baggage from tort-reform fights and its membership’s tendency to donate to Democratic causes.
The State Bar, by contrast, is old money. Corporate, staid, and, more important, ubiquitous. Wherever there’s a lawyer, there’s the Bar. The issue is the National Rifle Association’s proposal to end vicarious litigation, a concept whereby the employer is held responsible for the employee’s actions.
The NRA proposed to dump the legal doctrine, which is only a few centuries old and looks years younger, as an enticement to Georgia’s business community. Chamber of commerce types have opposed the effort to give employees the right to keep firearms in cars on the company lot as an infringement of private property rights.
Details are to tucked into H.B. 89. But the business community says its not impressed. And State Bar president Jay Cook on Saturday put the issue in easy-to-understand, apocalyptic terms:
“Surely our legislators don’t realize the devastating consequences this will have on our justice system and the people of Georgia.
“Vicarious liability is a principal of law that’s been with us for more than a thousand years. Is it wise to wipe out a millennium of legal tradition with three paragraphs in an unrelated bill? “I hope our representatives will give this matter the careful consideration it deserves.” As a matter of fact, the Senate Rules Committee is to take up the bill within minutes.
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ABA leadership nominee disputes detainee policy - Guantanamo fails `gut test,' Wells says
THOMAS SPENCER, The Birmingham News
April 15, 2007
Thomas Wells, a Birmingham attorney in line to be president of the American Bar Association, got a firsthand look last week at the detention facilities where 385 enemy combatants are being held at Guantanamo Bay Naval Base.
While he came away with the impression that conditions resemble those in a typical American prison, Wells said the trip did not answer the "serious policy questions" the country still faces with a prison full of detainees held indefinitely, most without charge and with no real channel to establish whether and on what grounds they should be held.
That legal limbo is at odds with basic American principles of fairness and justice, Wells said. "It doesn't pass the gut test."
Wells, a shareholder in the Birmingham law firm of Maynard, Cooper & Gale, was recently nominated as president-elect of the American Bar Association. If confirmed, he will be in line to head the 413,000-member organization in 2008.
He was invited on the trip to Guantanamo, which was arranged by the Defense Department, with 10 others, including journalists, lawyers and the executive director of the Muslim Public Affairs Council.
The ABA has consistently expressed concerns about the uncertain legal status of the detainees captured in Afghanistan and housed at Guantanamo since January 2002.
The Bush administration has labeled the prisoners enemy combatants, not prisoners of war who would be entitled to certain rights and procedures under the Geneva Convention. The administration also has opposed allowing prisoners to contest their confinement.
Held without charges:
In 2004, Congress established a system of military tribunals to try the prisoners, and the government said it expects to prosecute 60 to 80 of the detainees. The rest are in limbo, presumably to be held until the "war on terror" ends.
"When the heck is the war going to be over?" Wells asked. "In that situation, can we justify holding these people without charges, essentially forever?"
More than a dozen of the detainees are on a hunger strike to protest their treatment. Wells said that after a prisoner skips nine meals, he is examined by a doctor who can recommend feeding the prisoner. If the commanding officer approves, the prisoner is strapped to a restraint chair and force-fed through tubes inserted through the nostrils.
As for treatment of the prisoners, Wells said the visiting delegation was served the same lunch as the detainees - chicken and pasta - and it was more than he could eat. The medical care available was impressive, Wells said.
Prisoners are kept in a variety of arrangements, based on their security status. Those in the maximum-security section are confined to 8- by 10-foot cells 22 hours a day, with two hours for showers and exercise.
"As prisons go, it is a pretty good prison, but it is not a place you or I would want to be," Wells said.
The military stressed that interrogations are performed according to guidelines in the Army field manual and that detainees are not subject to coercion, Wells said. He said that prior to 2005, guidance from civilian authorities as to what was allowed was "murky." Now provisions of the Geneva Convention are posted in the detention center in several languages so prisoners and guards alike know the ground rules.
The delegation was not allowed to speak to prisoners. The military presented the group anonymous quotations from interviews with detainees and showed the visitors makeshift weapons that were found in the lockup after a riot there last year.
Some pose threat:
Wells said the evidence presented made a "pretty effective" case that at least some of the detainees still pose a threat to the United States. However, he said, the facts that some may still be in danger and that conditions at Guantanamo have improved don't address the lingering problems with a lack of due process for the detainees.
"That is problematic to me. To some extent, we are making it up as we are going along," Wells said.
Wells will become president-elect of the ABA if his nomination is approved by the ABA House of Delegates in August. That would put him in line to begin a one-year term as ABA president in August 2008.
Wells would be the third Alabamian and the second partner from Maynard, Cooper & Gale to be ABA president. N. Lee Cooper was president in 1996-97, and Henry Upson Sims of Birmingham in 1929-30.
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Suit Challenges Method For Selecting State Supreme Court Justices
Chattanoogan.com ( Chattanooga, Tenn.)
April 9, 2007
The Tennessee Center for Policy Research and its President, Drew Johnson, have filed suit in federal district court in Nashville alleging that Tennessee’s method of selecting appellate court judges is unconstitutional.
If the suit is successful, Tennessee’s voters may regain their constitutional right to popularly elect State Supreme Court Justices.
Tennessee’s current judicial appointment scheme, known as the “Tennessee Plan for Judicial Selection and Evaluation,” allegedly violates several provisions of the State Constitution, including Art. VI, Sec. 3, which states that “the judges of the Supreme Court shall be elected by the qualified voters of the state.”
Under the Tennessee Plan, politically appointed members of the Judicial Selection Commission present the governor with a slate of candidates for vacant judicial seats. After the governor appoints a judge from the slate, the judge is re-selected every eight years through a retention election system that offers Tennessee voters no other candidates from which to choose, it was stated.
The suit, brought on behalf of the nonprofit, free market think tank and its president by Nashville attorney Bob DeLaney, seeks to obtain an order declaring that the popular election of members of the Supreme Court of Tennessee and the intermediate appellate courts, is required by the Tennessee Constitution.
“ Tennessee’s Supreme Court Justices are sworn to uphold the Constitution and decide cases based on their understanding of the document,” said Mr. Johnson. “Ironically, if the Tennessee Plan is held unconstitutional, the justices of this state’s Supreme Court are being selected in violation of the very document they are sworn to uphold.”
Mr. Johnson said he chose to file the case in federal court because he said the Tennessee Plan, if found to violate voting rights granted under the State Constitution, would also violate the due process and equal protection clause of the 14th Amendment to the U.S. Constitution, the plaintiffs claim.
The suit also requests a temporary restraining order to prevent the Judicial Selection Commission from nominating candidates until the case goes to court.
The Judicial Selection Commission is scheduled to meet Friday to nominate a slate of candidates to fill the Supreme Court vacancy created by the retirement of former Chief Justice A.A. Birch.
To view the complaint, visit: http://www.tennesseepolicy.org/files/pdf/Johnson%20Complaint.pdf
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Commentary - LEWIS FULLER: Study puts cost of tort tax at $865 billion
April 8, 2007
With April 15 on the horizon, millions of Americans can soon expect to be writing a check to the IRS. While they have their checkbooks out, they may as well make out another one for $9,827, payable to personal injury lawyers. For the entire country, the bill comes to $865.37 billion. That’s billion with a “b."
That astonishing figure represents the “tort tax" a typical family of four can expect to pay every year, and the total cost of our litigation system, according to a study released last week by economists at the Pacific Research Institute (PRI), based in San Francisco. We can thank Dr. Lawrence J. McQuillan, PRI’s director of business and economic studies and lead author of “Jackpot Justice," for calculating the most comprehensive cost estimates of our legal system to date.
To put it all in perspective, consider that $865 billion is more than 27 times the amount the federal government spends on homeland security and 13 times more than the Department of Education spends to help educate our children. Or think of it this way: Every day, the American economy takes a $2.4 billion hit just to sustain our out-of-control legal system. And less than 15 percent of this goes to compensate injured people.
For years, Alabama Voters Against Lawsuit Abuse has warned about the negative economic impact of our litigation lottery, in Alabama and across the country. Personal injury lawyers always know to the dollar how much they collect from jackpot-sized verdicts. AVALA is glad someone added up how much the trial bar’s excesses are costing America.
America’s litigation lottery does not just enrich lawyers. It drives up prices we pay for health care by an estimated $124 billion per year because doctors who fear lawsuits increasingly engage in defensive medicine -- ordering more tests and procedures just to avoid the risk that a patient with an enterprising attorney might sue.
The authors of “Jackpot Justice" tell the story of a Washington state patient who suffered a broken jaw while working at a construction site. Despite a clear diagnosis, emergency room doctors fearing possible litigation ordered a battery of tests, including CT-scans and MRIs. The additional costs of these “lawsuit-prevention" tests -- about $20,000.
Doctors aren’t the only ones altering their business practices in response to personal injury lawyers’ onslaught. Businesses who face mounting legal costs must often cut back on research and development spending -- the seed money for innovation. Less innovation means fewer new products and fewer improvements to old products.
According to PRI’s estimates, American companies suffer more than $367 billion in lost sales from less innovation because of the high costs of supporting Trial Lawyers, Inc.
Not surprisingly, U.S. tort costs far outstrip our economic competitors. According to another study cited by PRI, the U.S. spent 2.2 percent of its GDP on tort costs, compared to 0.7 percent for the United Kingdom, 0.8 percent for Japan, and 1.1 percent for Germany. If you assume U.S. costs should be in line with our rivals, the authors project that we waste $589 billion per year on excessive social tort costs.
When America spends just $32 billion a year to protect our homeland from another terrorist attack, but $865 billion to support personal injury lawyers, our priorities are seriously misplaced. When will we wake up and realize that America can no longer afford to be a nation of the lawyers, by the lawyers, and for the lawyers?
Lewis Fuller, owner of Fuller Medical Supply in Gadsden, is chairman of Alabama Voters Against Lawsuit Abuse, a nonprofit, statewide organization. AVALA web site is alabamalawsuitabuse.org
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State Bar board favors Web advertising regulation - If rule passes, Florida will become first state to tackle Internet issue
By Danielle Randall, Orlando Business Journal
April 6, 2007
The Sunshine State could become the first to address lawyer advertisements on the Internet. The Florida Bar Association this week approved a proposed Web site advertisement rule, and it plans to soon take it to the Florida Supreme Court.
Website Rule 4-7.6 would allow lawyers to advertise their past results and statement characteristics concerning the quality of legal services through testimonials on Web pages that are just one click past the home page, says Elizabeth Tarbert, ethics counsel for The Florida Bar.
Still, lawyers' home pages must comply with traditional advertisement rules applied to print, radio and other media.
To make the proposal official, the Bar will notify its members 30 days before filing with the Florida Supreme Court. The next step will be to collect comments from lawyers and submit them, along with the proposal, to the court. Once the proposal is filed, lawyers are encouraged to send their comments directly to the court within 30 days.
The Website Rule could take as long as one year from the date it is filed with the Supreme Court to be adopted, says Francine Walker, the Bar's director of communications. A timetable to file the proposed rule has not yet been determined.
Henry M. Coxe III, president of the Bar's board, says that in 2004, an advertisement rules task force was established to evaluate lawyers' advertisement via the Web and, a year later, a special committee was established to evaluate the same concerns.
"We have done what no other Bar has done, tackle [lawyers'] Web advertisement," says Charles "Chobee" Ebbets, chairman of the special committee that developed the proposed rule.
The Florida Bar is the third-largest in the United States, with 80,000 members, 15,000 of whom practice outside the state.
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Female Lawyers Set Sights on Yet One More Goal: A Seat on a Board
By ELLEN ROSEN, The New York Times
April 6, 2007
Barbara Paul Robinson has been the first at many things.
The first female partner at Debevoise & Plimpton; the first female president of New York City’s bar association; and now, among the first to participate in a new program geared toward training female lawyers to become directors of public companies. Now, she would like to serve on a board.
Companies “want problem solvers who operate within the rules and within the appropriate framework,” she said. “No one wants naysayers — helping you get to yes is the hard work, and that’s what good lawyers do.”
But board seats have eluded lawyers in general, and women in particular. Only 14.6 percent of Fortune 500 companies counted women among their directors in 2006, according to Catalyst, the research organization that focuses on women in the work force.
As a result, two lawyers, Linda C. Hayman and Mary Ann Jorgenson, with the help of a few colleagues, began organizing the DirectWomen Institute, a program that recognized the dual need of corporate boards to increase their female ranks and the desire of the first wave of baby boomers, like Ms. Robinson, to find a new type of corporate work as they segue out of full-time legal practice. The American Bar Association and Catalyst are the principal sponsors.
Ms. Hayman, a partner at Skadden, Arps, Slate, Meagher & Flom in New York, said: “The first group of women to graduate from law school in large numbers in the early 1970s is now approaching retirement age. The women in this group were often the first women in their law firms or in their companies. And this group is expected to be in the forefront of redefining the concept of retirement. For some of them, board service is a logical next step.”
DirectWomen, which started late last month in one of New York’s grande dame hotels, the Waldorf-Astoria, is also trying to take advantage of another trend. Over all, a shortage of qualified candidates for directors exists in the wake of the recent corporate accounting scandals, said Joie A. Gregor, a consultant with the executive search firm Heidrick & Struggles in New York. Companies are now limiting the number of other boards on which a chief executive can sit as a board member’s obligations have become more taxing, said John C. Coffee, a professor at Columbia Law School. Additionally, some potential directors may be deterred by the specter of liability.
While recruiters say that nominating committees have expanded their searches, lawyers are still not generally considered, often because “the No. 1 criteria of companies is to have strong operating executives,” Ms. Gregor said. Another obstacle, she said, is an assumption that lawyers would merely duplicate advice already provided by hired counsel. Additionally, law firms, concerned with potential client conflicts, often prohibit partners from serving on boards.
Some lawyers do already sit on boards, and the institute honored 12 women who are directors of companies ranging from Raytheon to Bed, Bath & Beyond. One of those honored, Aulana L. Peters, sits on the boards of the 3M Company, Deere & Company, Merrill Lynch and Northrop Grumman. Making the leap from practicing lawyer to director is not difficult, she says.
“Lawyers are trained to ask questions, spot issues that may or may not be a problem and then trained to solve the problem. That is the mind-set for board membership,” said Ms. Peters, who was formerly a partner at Gibson, Dunn & Crutcher, as well as a commissioner on the Securities and Exchange Commission.
The founders of DirectWomen believe that lawyers like Ms. Peters demonstrate both the talent available and the success possible in the boardroom, and they have gained support from companies as diverse as Wal-Mart Stores and Pfizer in addition to many law firms.
But they also wanted to ensure that the freshman class was strong and committed, so they drafted a lengthy application that required three recommendations. Ms. Robinson, like others in the program, found the application “daunting” but lined up three A-list references including Chad Holliday, the chief executive of DuPont. More than 200 women applied. Chances of acceptance for one of the 21 spots thus rivaled those of getting “into preschool or Harvard,” Ms. Hayman said.
The program is also unusual because unlike other institutes that try to educate current directors about their obligations, the program featured a series of interactive workshops and discussions. Mr. Coffee, for example, along with Hillary A. Sale, a professor at University of Iowa College of Law, ran a mock board meeting in which, he said, he played an “overbearing, pompous and unctuous C.E.O.” who tried to intimidate a female director, played by Ms. Sale. Randy J. Holland, a justice on the Delaware Supreme Court, discussed directors’ duties with the group.
The program also focused on how the women could “position and package themselves appropriately so it’s easy for anyone to understand what they bring to the boardroom,” said Deborah M. Soon, the vice president for executive leadership initiatives at Catalyst.
Résumés typically emphasize transactions, not the contributions they’ve made to a business, but “you don’t lead with the fact that you’ve done 1,000 M.& A. deals, but that you’ve been engaged to help develop an M.& A. strategy and to identify potential acquisition targets that ultimately culminated in an acquisition,” Ms. Soon said.
Even with the inaugural program, the organizers recognize that gaining board acceptance for lawyers — male or female — may take time. “I’m not naïve enough to think you say it once and it sinks in,” Ms. Jorgenson, a partner at Squire, Sanders & Dempsey in Cleveland, said. “We’re building awareness about the quality of a pool.”
Additionally, many acknowledged that lawyers may fare better in some companies, like those that are “highly regulated or have had some ethical or financial issues,” said Julie H. Daum, a consultant with Spencer Stuart, the executive search firm, in New York. “These companies may want to make a statement about bringing someone on who knows about corporate governance.”
She added that “companies that have recently been spun off or have emerged from bankruptcy also may be more receptive to lawyers since they have the ability to add 10 directors, not just one.”
And, according to Marlene Alva, who recently retired from Davis Polk & Wardwell, and is also among the first class of women, the pool may be better suited than those without law degrees to understand the demands of going on a board. “It is a big-time commitment, and it’s liability-fraught. But it seems like lawyers are in a better position than others to judge the perils.”
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Local input needed
Shelby County Reporter
April 3, 2007
State Rep. Cam Ward (R-Alabaster) has brought a bill before the Alabama House of Representatives that would change how vacancies are filled in the Shelby County Court system.
Currently, the governor fills any openings.
As an alternative, Ward is suggesting using a five-member board, called a judicial commission to recommend nominees. The board would be made up of all local people — specifically two members of the Alabama State Bar, two non-bar members appointed by the county’s legislative delegation and the county’s presiding judge.
Should a vacancy ever arise in the 18th Judicial Circuit, the commission would provide three nominees to the governor to fill the position. Board members would serve staggered, six years terms, receive no compensation and couldn’t serve has officer in any political party.
While the bill doesn’t take politics completely out of judicial appointments, it does ensure that local leaders will have a say in who presides over the county’s courtrooms. As Ward said this week: “It would be really scary for a governor to come in and make an appointment based on political patronage rather than professional qualifications.”
If passed by the State Senate and signed by Gov. Riley, the bill would go before voters during the next statewide election.
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Judicial corruption: Indictment of system – [Editorial]
April 9, 2007
The conviction of lawyer Paul Minor and two former state judges on federal corruption charges points to bigger problems of elected judges who accept contributions from lawyers and other special interests.
A federal court jury found Minor, former Chancery Judge Wes Teel and former Circuit Judge John Whitfield guilty on Friday. Minor faces a maximum 95 years in prison; Whitfield 50 years, and Teel 25 years. Sentencing is June 14.
This is their second trial. In 2005, jurors acquitted the three men on some charges and failed to agree on others.
The government showed Minor arranged a $25,000 line of credit for Teel and loans of $40,000 and $100,000 for Whitfield at a Biloxi bank in 1998, then secretly paid off the notes as part of a scheme to influence cases involving his clients in the two judges' courts.
Not to excuse Minor or the judges, but the conviction is rather an indictment of the state's system of justice. The problem is that judges taking cash and loans from attorneys is legal in Mississippi - arising from the way the state selects judges through elections, which allows cash, loans and contributions from those who appear before them.
In order for such cozy relationships between lawyers and judges to be considered criminal, it has to be proven that the judge ruled differently because of the contribution.
Apparently, federal prosecutors were able to prove such this time. But getting "inside the mind" of a judge who has accepted gifts is nearly impossible.
The state should change to appointing judges. The current system is fraught with conflicts and problems.
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