Clay Maitland

On a quest for quality in shipping

The trial lawyers’ payday comes to the Bayou

Posted on | August 4, 2010 | No Comments

claytoonjpgAs an American lawyer, my heart rate naturally goes up when I think about large-scale litigation.  My professional pride also swells to see that our legendary legal ingenuity is not a thing of the past.

So I’m not really surprised or dismayed that resourceful responders in the Gulf are answering the call of those in need of more lawyers. Either for free or a fee, depending on circumstances.

To help things along, the lawyers have embraced the internet; the “race to the courthouse” is now the “race for the domain name”. Some of these include: Oil-Rig-Spills.com; BPLawsuit.net; GulfOilSpillCompensation.com; OilSpillCleanupLawsuit.com; GulfSpillLawyer.com; BP-Oil-Spill-Lawsuit.com; GulfOilSpillLitigationGroup.com; GulfCoastOilDisaster.com; BPOilSpillLawyer.net; Oil-Spill.com,–and those are just the ones that omit a dollar sign.

I am old-fashioned enough, though, to look down my nose at practices for which my honoured profession is sometimes criticised. A famous English judge, Lord Denning, had the same reaction:

“As a moth is drawn to the light,so is a litigant drawn to theUnited States. If he can only get his case into their courts, he stands to win a fortune. At no cost to himself, and at no risk of having to pay anything to the other side.” Smith, Kline & FrenchLaboratories Ltd. v. Bloch,(1983)..

I can remember what one of my law professors many years ago dubbed the forty-year rule: “Ladies and gentlemen of the jury, and your honour, in my forty years as a member of the bar of this court…” And so forth.

The forty-year rule is a lawyer’s standby when in need of courtroom bombast. In the case of what’s happening in Mississippi, I hereby invoke it..
The goings on there, and elsewhere in the Gulf, beat, for unmitigated gall, anything I’ve seen in my more than forty years as a member of any bar. Almost.

This is nothing really new. We saw it all with the massive two-decade tobacco tort litigation, leading to the Master Settlement Agreement of 1998.

That was a lucrative payday for many lawyers, as was the post-Hurricane Katrina litigation against State Farm Insurance Co.  The Gulf of Mexico gusher may bring on the biggest lawyers’ pinata of them all.

Two months ago, Mississippi Attorney General Jim Hood asked Congress to rewrite the Tort Claims Act, so that he could sue the Gulf of Mexico oil spill defendants in Mississippi state, instead of federal court.

The Magnolia State’s juries, and judges, are notorious for what is known as “jackpot justice”, and this would play into the hands of what is known as the Pascagoula lawsuit club. If the Macondo suits remain in federal court, BP and its fellow defendants will still pay out handsomely, but the amount of legal fees very likely will be more closely controlled than they would in state court.
If the main BP suits remain consolidated in federal cort in, say, New Orleans, the process will be fairer to all parties, including plaintiffs. This is because the lawyers’ fees will be subject to court review, in a way that won’t happen in Mississippi state court.

The uncrowned king of the Mississippi trial bar, one Dickie Scruggs, is, sadly, in jail, having been convicted for having attempted to bribe a judge.

In the unrelated Hurricane Katrina case, referred to above, Scruggs and Attorney General Hood were alleged to have entered into an agreement to force State Farm into settlement of civil and criminal charges.
Although contempt charges against Scruggs were ultimately thrown out, the federal court noted that there was a “cloud of suspicion surrounding the agreement between Scruggs and Hood.”
This kind of incestuous relationship between the state’s chief law officer and the trial bar illustrates why there is growing agitation for tort law reform, within the legal profession and in the business community. It is also clear that among the victims of the present situation are — in many cases– the claimants themselves.

Finally, it explains why President Obama “ring-fenced” a $20bn  claims fund, administered by an independent trustee. And why BP so readily agreed to it. It would have been interesting to have been a fly on the wall during that painful White House meeting.   As the saying goes in Washington, we may be stupid, but we’re not dumb.

All this has an obvious bearing on the unsavoury links between Deepwater Horizon and Mississippi politics. Governor Haley Barbour, improbably, is talking about running for President.

Barbour is a Republican; some embattled Democrats are up for re-election in the fall.  Elections cost money The lawyers, politicians and other interests in the bayou bottomlands of the Magnolia State are the mother lode of campaign cash.
There is always a way, as they say there, of scratching one  another’s back… Politicians call this “pork”, and the various money-spinning designs emanating from the region, as “pork for Pascagoula.”
The trouble is, Deepwater Horizon, through payouts of fees to the Mississippi trial bar, promises, quite lawfully, to be a lush source of campaign contributions. And that, for years to come. As Attorney General Hood happily climbed the Capital steps, perhaps he was humming that old local song, “Shrimp boats are a-comin’, there’ll be dancin’ tonight.”

The long, winding litigation trail, from tobacco to Katrina, and now Deepwater Horizon, could turn out to be  educational and costly for all the parties, particularly the real victims of the blow-out.  Mississippi has a notorious reputation for both poverty and political stitch-ups (no coincidence there).

For years, reform of the way tort cases are handled in the U. S. has been quietly sidetracked. This week, the American Bar Association is meeting in San Francisco. Tort reform is on the agenda. It’s a good thing the meeting won’t be in Pascagoula.

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