How To Make the Next Enron Happen

Cross-posted from Tort Deform: The Civil Justice Defense Blog

If anybody has been up late at night thinking about how to make the next Enron scandal happen as quickly as possible, they need look no further than the recommendations soon to be released by a committee created by the U.S. Chamber of Commerce [a similar group known as the Paulson Committee released its own recommendations today].

Just a few years after the Enron scandal, big business is apparently trying to immunize itself from criminal prosecutions and private shareholder civil suits by rolling back the Public Company Accounting Reform and Investor Protection Act of 2002. This legislation was overwhelming passed by Congress  (House 423-3; Senate 99-0) to attempt to deal with the very problems highlighted by the Enron, Worldcom, and Tyco scandals.

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Developing a Right to Counsel in Civil Cases in Which Basic Human Needs Are at Stake

Cross-posted from Tort Deform: The Civil Justice Defense Blog

by Laura K. Abel& David Pedulla

If you are charged with a crime, facing prison, and unable to afford an attorney, the U.S. Constitution requires that the court appoint one for you.  Did you know, though, that in civil cases, where the consequences may be far more devastating than spending a brief time in prison, counsel generally is not guaranteed?  Every day, parents fight to keep their children, and families fight to keep their homes, without a lawyer by their side.  Fueled by the knowledge that this is unjust, and by a recent resolution from the American Bar Association, advocates around the country are working to change this sad state of affairs.

It doesn't take an expert to know that if you represent yourself against someone who has a lawyer, you will be at a severe disadvantage.  As the adage goes, "The man who represents himself has a fool for a lawyer." The result of such a proceeding frequently is that the unrepresented party cannot present the relevant law and facts, the judge has to decide the case in a vacuum, and the outcome is based more on accident than on a careful weighing of the facts.  A democracy in which the judiciary has primary responsibility for protecting individual rights cannot afford to require low-income people to go without legal counsel in cases in which basic human needs are at stake.  

This past summer, the House of Delegates of the American Bar Association unanimously approved a resolution urging federal, state, and territorial governments to assure that poor people have a right to legal counsel in cases where basic human needs, such as shelter, sustenance, safety, health, or child custody, are at stake.  Michael S. Greco, the then-president of the ABA, called the resolution "historic in the realm of an extraordinarily meaningful action by the ABA." The Conference of Delegates of California Bar Associations passed its own resolution this fall, calling for free legal representation in cases dealing with sustenance, shelter, safety, health, and child custody for people unable to afford to pay for counsel.  Other state and local bar associations should follow suit.  

Low-income people in several states are asserting a state constitutional right to counsel in various kinds of cases involving family issues.  There are also efforts underway around the country to persuade state and local legislatures to pass legislation guaranteeing a right to counsel in civil cases concerning basic human needs.  The California Commission on Access to Justice recently released a model civil right to counsel statute, providing a boost to these efforts.  

Of particular interest to readers who want to learn more about the state of the right to counsel in civil cases, and the movement to expand it to all cases concerning basic human needs, is a recent edition of the Clearinghouse Review: Journal of Law and Policy dedicated to the right to counsel in civil cases.  

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Some Reasons To Oppose "Loser Pays" - Part One

Cross-posted from Tort Deform The Civil Justice Defense Blog

For some time now, I've been meaning to post about why "loser pays" is a bad idea.  Loser pays is a legal concept in which the loser of a lawsuit is forced to pay the legal costs of the winner.  Advocates of "loser pays" claim that enacting it would dramatically cut down on the mythical frivolous lawsuits that supposedly clog our court system.  I don't doubt that "loser pays" will cut down on frivolous lawsuits.  The problem is that "loser pays" will also dramatically decrease the number of serious and meritorious lawsuits, especially those filed by individuals against corporations.  Here's the first reason I oppose "loser pays."

Criminal Law

To be fair, we'd have to apply it to criminal law, too.

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Big Noise in the Mitten State: Part 3--A Big "V" for "The Vioxx Woman"

Cross-posted from Tort Deform: The Civil Justice Defense Blog

By Professor Henry Greenspan

I had anticipated that this installment about the struggle to rescind Michigan's absolute drug industry immunity law would be not be a happy one.  Almost certainly, those who opposed rescinding would retain control of our State House.  And that meant that Speaker Craig DeRoche would continue to be able to block floor votes on any of the several bills to rescind immunity.  DeRoche's  veto was the ballgame.  He knew that a majority in the House, both Republicans and Democrats, were in favor of rescinding.  He also knew that polls consistently showed that at least 70% of Michigan citizens favored rescinding.  So there was certainly high water on the other side of the levee, but there seemed no possibility of a serious storm.

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Sue as I say, not as I sue

My op-ed was published in the West Virginia Record: Sue as I say, not as I sue.

NEW YORK -- In recent years, the courts of West Virginia have been a favorite target of the self-labeled tort "reform" movement.

In West Virginia, and across the nation, the U.S. Chamber of Commerce and state chambers are attempting to push forward what they term tort "reforms." These legislative initiatives limit, constrict, and sometimes eliminate Americans' ability to go to court when they are injured by others' misconduct.

Of course, these chambers of commerce represent corporate business interests, and the fact that they are so aggressively pushing these initiatives forward must indicate to you that corporations see it as in their financial interest to make it as hard as possible to sue them, no matter what injuries their actions cause. (keep reading op-ed)

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