A Sobering Reality, And An Amusing Spat

Sometimes these weekly commentaries seem to write themselves. This is one of those weeks and it’s just as well as a week away from the office would force to late night homework to catch up.

But it’s not necessary. What needs to be read has been authored by others and we’ll just pass it along in case it’s been missed.

While on a brief vacation, I read the moving book by ABC newsman Bob Woodruff and his wife, Lee. Woodruff, you’ll recall, was nearly killed in a road-side bombing attack in Iraq shortly after he was appointed co-anchor of ABC’s Nightly News.

You’ll agree it’s a miracle he survived if you read the book, In An Instant.

And assuming you pay attention to what is usually written here, you won’t be surprised to read this paragraph by Bob Woodruff. It appears in the "afterword" of In An Instant, on page 280:

‘I’ve been told that if my injury had happened in an American city or in an earlier war, I would most likely have died or have suffered serious permanent brain damage. Even in America, there are few trauma centers that would do a hemicraniectomy without hesitation; this is attributable to the number of skilled surgeons available to do the procedure, as well as to the fear of litigation in our country.’

Who instills that fear of litigation? Read On.

A Case of Trial Lawyers v. Trial Lawyers
(Washington Post November 30, 2007)

Largest Association Sues Upstart, Asserting Ownership Of Discarded Acronym

Trial lawyers sue each other all the time. Now they are suing each other over what to call themselves.

Millions of dollars of membership fees from plaintiff's attorneys could be at stake, as well as bragging rights in a profession filled with famously massive egos.

The confrontation began last year when the nation's largest and most politically powerful trial lawyers' organization dropped the not-so-popular words "trial lawyers" from its title and substituted "justice." So the Association of Trial Lawyers of America (ATLA) became the American Association for Justice (AAJ).

Around that time a prominent group of attorneys quietly began forming an organization that might compete with AAJ. This fall they solicited thousands of AAJ's 56,000 members to join. The group's name: The American Trial Lawyers Association, or TheATLA. Its Web site is http://www.theatla.com.

TheATLA says it is not trying to rip off the name of the country's premier trial lawyer lobbying group or even to compete with AAJ. "The name defines who we are and what we do," said J. Keith Givens, TheATLA's main founder and a senior partner in the national law firm founded by the late Johnnie Cochran, of O.J. Simpson fame. Givens, a well-known Alabama plaintiff's lawyer, asserted that AAJ abandoned the name ATLA last year, freeing up its use. Besides, he said, his group is TheATLA, which is different.

AAJ disagrees. Two weeks ago, it filed suit in federal court in Minneapolis to force TheATLA to drop the name, contending it was confusing AAJ members and infringing a trademark AAJ has held since 1976 on the acronym ATLA. In typical trial lawyer fashion, the suit also demands that AAJ get any profits that TheATLA collects, as well as damages, "trebled where permissible," and attorneys' fees.

A separate organization, the Irvine, Calif.-based American College of Trial Lawyers, also went to federal court this month in Montgomery, Ala., to prevent the Givens group from calling itself the American Trial Lawyers Association, a name, it says, is too close to its own.
You can read the balance of this story here (PDF).

But you should also read this one if you haven’t seen it.

The Trial Bar On Trial
(Commentary: Wall Street Journal, November 30, 2007)

". . . it ain't but three people in the world that know anything . . ."

The barons of the tort bar must have thought 2007 would be a very good year: Some of their biggest cases (Katrina, Enron) were set to pay out, and a Democratic Congress meant no more worries about legal reform. Talk about reversal of fortune: As the year ends, we are witnessing nothing short of the dismantling of what are alleged to be major tort criminal enterprises.

Bill Lerach, the king of class actions, stands disgraced as an admitted felon. His former partners at Milberg Weiss face trial for being part of the same kickback scheme as Lerach. Federal prosecutors continue to pursue a criminal probe into asbestos and silicosis litigation fraud. And now comes the indictment of Mississippi tort legend Richard "Dickie" Scruggs, who is trying to soak insurance companies the way he once did Big Tobacco.

On Wednesday, Mr. Scruggs and four cohorts were indicted for trying to bribe a state judge in exchange for favorable rulings. The indictment reads like something out of a bad John Grisham novel, complete with piles of cash delivered secretly and wiretapped conversations featuring phrases like "bodies buried." The accused claim to be innocent, but our reading of the indictment is that they are going to need very good defense counsel.

The alleged conspiracy flows from litigation after Hurricane Katrina. The Scruggs Law Firm established a tort consortium called the Scruggs Katrina Group to shake down the insurance industry for not paying enough in claims, even though most homeowner policies excluded flood damage. Not atypically, a dispute emerged between Mr. Scruggs and one of the group's attorneys, John Griffin Jones, over how to divide the $26.5 million in attorneys' loot from a mass settlement with State Farm Insurance Co.

Full Commentary (PDF).

-- Ed Murnane
Illinois Civil Justice League
December 3, 2007