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Blawg Review #234

Sociologist Elise Boulding has said that we live in a “200 year present,” a “social space which reaches into the past and into the future” -- a space in which “we can move around directly in our own lives and indirectly by touching the lives of the young and old around us.” Miall, Ramsbotham and Woodhouse, Contemporary Conflict Resolution.

What does the 200-year present have to do with conflict resolution week?  It reminds us that new forms never really completely replace the old ones.  We continue to employ every technique we've ever used to suppress, avoid, deny, resolve, transform, or transcend conflict, including force (violent and non-violent such as injunctions subject of a Trial Warrior Blog post this week); thievery (the Trade Secrets Blog); shaming (which Scott Greenfield does to bloggers "looking for fights and dumb as dirt" and which Volokh suggests we do to health insurers); bullying (solutions to which appear at the Citizen Media Law Project); torture (still with us at the Crim Prof Blog); cheating (Make Yourself Better with Their Secrets at Concretely Ambiguous) ingratiation (at the Law School Expert); persuasive argumentation; appeal to third party authority; bargaining; communication; and, problem solving (The Tao of Advice at the Business of Creativity). 

Whichever dispute resolution mechanism you use, it should be much improved if you take up  juggling (as reported this week at Idealawg).

Transformative conflict resolution of the type covered by New York City police officer, Jeff Thompson at Enjoy Mediation, requires accountability (by lawyers, for instance, to the principle of justice at Law21); recognition (at JD Bliss); apology, amends, reconciliation (at Opinio Juris); power with (negotiation and cooperation at the Ohio Family Law Blog) instead of power over (at the Election Law Blog); and, interests rather than rights (at the Gay Couples Law Blog).

No brand of law-giver or enforcer has ever entirely left the scene.  Cops, negotiators, mediators (on the international scene at the Business Conflict Blog); conciliators, arbitrators, trial attorneys (marking tattoos as exhibits over at LawComix), corporate lawyers, legislators  (fomenting a Franken Amendment at the ADR Prof Blawg); judges (whether elected or appointed at Legally Unbound), and, juries (who might be biased at SCOTUS Blog). 

And of course the gadflies (wolf protection lawsuits anyone? at  Point of Law). 

Win, lose, settle, enjoin (at Charon QC) or simply give up (6 Ways We Gave Up Our Privacy at CSO Security and Risk).  We regulate crime and prescribe punishment (Polanski at Sentencing Law and Policy and The End of an Era at Defending People). 

We wage war (at Prawfs Blog) and seek peace (at the Delaware Employment Law Blog) as conflict inevitably erupts over Obama's (embarrassing) peace prize (at Balkinization).

And, lest we forget our primary purpose, we bend our efforts toward justice (which, according to BLT is not necessarily available to card-carrying members of the ACLU).

My own personal 200-year present spans the life of my maternal grandparents who were nine years old in 1909, and that of my step-children’s children, who (assuming they procreate on a reasonable schedule) should be ninety-five'ish in 2109

My grandfather, born in 1900, witnessed the birth of electricity, saw the first automobile roll off an assembly line [2] and stood awestruck in a cornfield as one of mankind’s first airplanes took flight. [3]  Although we've progressed from bi-planes to jets and rockets (some of which may someday be green) we still fly balloons of the type first launched in 1783 -- both Goodyear Blimps and the backyard variety, covered this week by Legal Blog Watch as Law and More

asked here whether the shiny, flying, silver Jiffy Pop-looking craft tethered in the backyard of Richard Heene was an "attractive nuisance" under the law.

Grandpa's first war was, well, the First and his second was the Second,[4]  as if there'd never been any wars before the Great One. By the time I was born, mid-century, we'd fought the war to end all wars twice and knew we'd never survive a third

My imagined grandchildren, [6] born sometime between today and 2014, will not be strangers to any of my grandfather’s technologies. Despite the advent of compact fluorescent light bulbs, the early lives of my step-children's children will likely pass under the glow of the same incandescent lights that brightened granddad’s one-room school house. They will be transported to school in cars with internal combustion engines, learn the same alphabet from the same cardboard and paper books (as well as from the "e" variety) [7] and play many of the same games [8]  he did – hop scotch, jump rope and ring-around the rosy. 

Change will etch itself into the lives of my grandchildren as surely as it did my own, my parents' and my grandparents'.  Hybrids will give way to fully electric (and perhaps hemp-powered) [9] vehicles (effective or defective) and though electricity will continue to be  generated by hydroelectric dams, wind farms and nuclear power plants, some new and unimaginable source of power will surely push back the nights of my grand children's children. [10]

Law, politics, society and culture also exist in the 200-year present of conflict resolution.  [11] In my personal 200-year span, the law seems to have changed the most profoundly. Was it the law first and culture later?  Or do they weave our future together?

The first U.S. woman lawyer, Myra Bradwell, was admitted to practice a mere ten years before my grandmother was born. Mrs. Bradwell’s legal career was the subject of one of the sorriest U.S. Supreme Court decisions ever handed down, in which the Court opined,

The civil law as well as nature itself, has always recognized a wide difference in the respective spheres and destinies of man and woman. Man is, or should be, woman’s protector and defender.  The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. The constitution of the family organization, which is founded in the divine ordinance, as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood. The harmony, not to say the identity, of interests and views which belong, or should belong, to the family institution is repugnant to the idea for a woman adopting a distinct and independent career from that of her husband … for these reasons I think that the laws of Illinois now complained of are not obnoxious to the charge of any abridging any of the privileges and immunities of cities of the United States.

[12]

Another nineteen years would pass after Bradwell began her practice before she (and my nineteen year old grandmother) were guaranteed the right to vote. [13] And another 30 years would pass after my women's movement -- the Second Wave -- before we'd have our own  business magazine -   ForbesWoman (my part in it here).  And let us not forget that despite the 20th Century's great civil rights achievements, when America catches a cold, black America gets pneumonia.  See e.g. Problems All Around for Blacks in Big Law at Being a Black Lawyer.

My grandparents', parents' and step-children's 20th Century was dominated by genocide [14] on a scale and a technological precision unimaginable to our earlier forebears.  Mid-century brought with it the threat of nuclear annihilation but also liberated millions of people enslaved by colonialism.  We cured polio in my own lifetime with both "dead" and "live" vaccines (neither of them counterfeit) - a singular moment in scientific history during which no one took ownership of the cure and no one tried to stop others from seeking another, a problem Patently O addressed this week in Reverse Payments.

Whether god or satan, heaven or hell, war or peace "won" the twentieth century, the world's greatest peace-making body was created during it -- the United Nations.  And here in the U.S., the “living room war,” Viet Nam, coupled with the largest generation of adolescents ever to grace American society, ended the forcible induction of young men into the military[15]

With the recent discovery of our earliest ancestor, Ardi, our biological and social lives exist in a 4.4 million year now. Our physical bodies “evolve” in the womb along the same lines as did our species and, once born, we carry with us our earliest organs. [16] Most critical of these to conflict escalation and avoidance is our “fight-flight” mechanism – the amygdala.[17] And the most pertinent biological agents to promote the collaborative resolution of conflict are our “mirror neurons” which

 provide a powerful biological foundation for the evolution of culture . . . absorb[ing] it directly, with each generation teaching the next by social sharing, imitation and observation.

 [18]

As “exquisitely social creatures,” our “survival depends on understanding the actions, intentions and emotions of others.” Id. That our misunderstandings and cognitive biases -- mentioned by Volokh on Paternalism and Michael Carbone on reactive devaluation at Mediation Strategies this week -- threaten our survival as a species is undeniable (cf. Lawyers Must Survive or Face Extinction at the Lawyerist)

How we’ve manage to survive despite our tendency to misread one another’s actions, intentions and emotions, is often the subject of those who advise us how to choose and move juries -- here -- Anne Reed at Deliberations (explaining why "they" don't see things like "we" do here); and, the Jury Room (explaining why pain hurts more intensely when we believe it's been intentionally inflicted here). 

The Most Effective Conflict Resolution Technology is the Oldest

One of our true original gangsters, Al Capone, is reported to have said that “you can get much further with a kind word and a gun than you can with a kind word alone” and one of our greatest Presidents, Theodore Roosevelt said “speak softly and carry a big stick.”

Capone and Roosevelt didn't know it, but they were talking about the most effective (and most ancient) form of conflict resolution – tit for tat. In 1980, political Scientist Robert Axelrod asked game theory experts to submit computer programs designed to prevail in a game that provided the highest reward to cooperating pairs -- the famous Prisoner's Dilemma. (See also Max Kennerly's excellent post on Game Theory and Medical Malpractice Settlements at the Philadelphia Litigation and Trial Blog).

The winner of Axelrod's competition was a program named tit for tat.  Tit for tat was programmed to cooperate [19]  with its first encounter with any other programmed player.  It  rewarded cooperation with cooperation (just as networking will reward the savvy lawyer over at Chuck Newton's Ride the Third Wave) and punished non-cooperation with retaliation. Because Tit for Tat retaliated in the face of non-cooperation (just as a former employee did according to Hell Hath No Fury at Chicago Law Blogger) it was never repeatedly victimized. And because Tit for Tat “forgave” non-cooperators upon their return to cooperative game playing (as some believe Mr. Polanski should be forgiven over at the Marquette U. Law School Faculty Blog) it never got locked into mutually costly chains of mutual betrayal. [20]

As Robert Wright, author of The Moral Animal explained, had Tit for Tat been tossed into the game with 50 steadfast non-cooperators, there would have been a 49-way tie for first place. But none of the players' programs failed to cooperate in at least some circumstances, leaving Tit for Tat the clear victor.  According to Wright, humans, like the programs in Axelrod's competition, are evolutionarily “designed” to cooperate under at least some circumstances. The engine and benefit of cooperation is present in our neurochemistry.  When scientists observed the brain activity of volunteers playing the Prisoner’s Dilemma game, for instance, they found that the participants' “reward circuits” were activated and their impulsive "me first" circuits inhibited when they cooperated. Cooperation, retaliation, forgiveness and a return to cooperation. Tit for Tat. 

Laws and Lawyers

First and most importantly, I suppose, are the social media signs that you're "tweeting" like a lawyer over at the Social Media Law Student Blog.  Why first or important?  Know thyself.  Everything else follows that.

We don't "dis" lawyers here at the Negotiation Blog.  We simply remind ourselves that our primary purpose is the promotion of justice, with a stable societal order closely behind.  Most people don't understand, for instance, that Shakespeare's famous the first thing we do, let's kill all the lawyers was not an insult.  In King Henry IV, Act IV, Scene II, Shakespeare's sentiment was not his own, but that of a revolutionary who wished to destroy the social order.

The historic "present" of laws and lawyers is in the thousands, not simply the hundreds, of years. Hammurabi (make of his choice for the memorialization of his laws what you will) was the sixth king of Babylon, remembered for creating -- in his own name (and likeness?) - the first written and systematic legal code. 

These laws provided for a mix of physical punishment - 60 lashes with an ox hide whip - ‘measure for measure’ awards (still with us in the form of lethal injection as covered by The StandDown Texas Project) – eye for eye, bone fracture for bone fracture – and monetary compensation – 20 shekels for tooth injuries – (preserved by workplace injury awards such as those discussed at the Workers Compensation Blog) depended not only upon the type of injury, but the social classes involved in the loss, i.e., ‘measure for measure’ sanctions were specified for losses among the upper classes while monetary awards were required for losses caused to and by commoners (reminding us that disrespect still too often turns on social status or "outsider" classification as discussed at Balkinization this week).  [23] 

For the wrongful killing of another, for instance, the victim’s kin were paid according to the social status of the deceased party. Thus the ‘man price’ for killing a peasant was 200 shillings and that for a nobleman 1200 shillings. Payments were not, however, tailored to the loss, but fixed according to types of affront, a distinction we continue to make when we punish intentional torts more severely than negligent ones.  [24]>

Criminal law and civil, it all comes down to a process that is "due" (a topic covered in a blistering post about tea-partiers and other "protectors" of the Constitution at the Criminal Jurisdiction Law Blog) and a set of guidelines against which we can exercise some small degree of control over our own commercial and personal futures (like those subject of Delays Not "Party Time, Excellent" for Subcontractor at the Construction Contract Review).

Lawyers, litigators and trial lawyers are too often demonized by the ADR community as if you could get someone to sit down to negotiate without first pointing the gun of litigation at their heads; I salute you (and myself, for that matter!) for bringing us all to the bargaining table.  See Steve Mehta's recent post at Mediation Matters, Factors When Peace Makes Sense for a note that touches upon the symbiotic relationship between litigation and mediation, litigators and mediators.

I shouldn't cite single legal blogs twice, but I cannot resist this quote of Scott Greenfield's on another pundit's view of the future lawyers have in store for them, i.e., 

shucking oysters for a living if we don't accept a future of lawyers being piece workers in factories, sending our work off to Bangalore in pdf files and complementing people on their choice of forms at Legal Zoom.

Legal Rebels:  the Sky is Falling at Simple JusticeCharon QC also weighs in on the ABA Legal Rebels project here.

Arbitration

Which came first? Public civil trials or private arbitrations? You’ll be surprised, I’ll wager, to hear that arbitration was one of the earliest forms of dispute resolution, practiced by the juris consults of the Roman Empire. Roman arbitration predates the adversarial system of common law by more than a thousand years. [25]

Ah, the glory of Rome! The juris consulti were (like too many mediators) amateurs who dabbled in dispute resolution, raising the question whether they (and we) should be certified or regulated as Diane Levin asks at The Mediation Channel this week.  The Roman hobbyists gave legal opinions (responsa) to all comers (a practice known as publice respondere). They also served the needs of Roman judges and governors would routinely consult with advisory panels of jurisconsults before rendering decisions. Thus, the Romans – god bless them! - were the first to have a class of people who spent their days thinking about legal problems (an activity some readers will recall Ralph Nader calling "mental gymnastics in an iron cage").

18th Century Dispute Resolution Technology:  The (Inevitably Polarizing) Adversarial System

It was Buckminster Fuller who famously opined that the "significant problems we face cannot be solved at the same level of thinking we were at when we created them."  If you keep this aphorism in mind for the remainder of this post, you'll likely have some extraordinarily innovative comments to make in the comment section below.

As the Law Guru wiki reminds us, we can trace the adversarial system to the "medieval mode of trial by combat, in which some litigants were allowed a champion to represent them."  We owe our present day adversarialism, however, to the common law's use of the jury - the power of argumentation replacing the power of the sword.

The Act abolishing the infamous Star Chamber in 1641 also granted every "freeman" the right to trial by "lawful judgment of his peers" or by the "law of the land" before the Crown could "take[] or imprison[]" him or "disseis[e] [him] of his freehold or liberties, or free customs."  Nor could he any longer be "outlawed or exciled or otherwise destroyed."  Nor could the King "pass upon him or condemn him." 

English colonies like our own adopted the jury trial system and we, of course, enshrined that system in the Fifth, Sixth, and Seventh Amendments.  Whether this 17th century dispute resolution technology can be fine-tuned to keep abreast of 21st century dispute creation technology (particularly in the quickly moving area of intellectual property) remains one of the pressing questions of legal and ADR policy and practice, particularly in a week in which a Superior Court verbally punished the lawyers before it for filing The Most Oppressive Motion Ever Presented (see the Laconic Law Blog).  The motion? 

Defendants['] . . . motion for summary judgment/summary adjudication, seeking adjudication of 44 issues, most of which were not proper subjects of adjudication.  Defendants’ separate statement was 196 pages long, setting forth hundreds of facts, many of them not material—as defendants’ own papers conceded.  And the moving papers concluded with a request for judicial notice of 174 pages.  All told, defendants’ moving papers were 1056 pages.

Id. (and ouch!)  On a less Dickensian note (think Bleak House) take a look at the IP Maximizer's post on IP litigation not being smart source of revenue for inventors

Mediator, author and activist, Ken Cloke, suggests that interest-based resolutions to conflict must replace power and rights based resolutions if we expect to create a future in which justice prevails.  As Ken wrote in Conflict Revolution:

Approaching evil and injustice from an interest-based perspective means listening to the deeper truths that gave rise to them, extending compassion even to those who were responsible for evils or injustices, and seeking not merely to replace one evil or injustice with another, but to reduce their attractiveness by designing outcomes, processes, and relationships that encourage adversaries to work collaboratively to satisfy their interests.

Evil and injustice can therefore be considered byproducts of reliance on power or rights, and failures or refusals to learn and evolve.

All political systems generate chronic conflicts that reveal their internal weaknesses, external pressures, and demands for evolutionary change. Power- and rights-based systems are adversarial and unstable, and therefore avoid, deny, resist, and defend themselves against change. As a result, they suppress conflicts or treat them as purely interpersonal, leaving insiders less informed and able to adapt, and outsiders feeling they were treated unjustly and contemplating evil in response.

As pressures to change increase, these systems must either adapt, or turn reactionary and take a punitive, retaliatory attitude toward those seeking to promote change, delaying their own evolution. Only interest-based systems are fully able to seek out their weaknesses, proactively evolve, transform conflicts into sources of learning, and celebrate those who brought them to their attention.

These are the words I leave with the readers of Blawg Review #234 because they are the ones that informed my personal and professional transformation from a legal career based on rights and remedies to one based upon interests and consensus. 

Whatever my own personal 200-year present was, is and will be, it is pointed in the direction of peace with justice, with an enormous and probably unwarranted optimism best expressed by the man after whom my law school was namedMartin Luther King, Jr.  - the arc of history is long, but it bends toward justice.

Blawg Review has information about next week's host, and instructions how to get your blawg posts reviewed in upcoming issues. Next week's host, Counsel to Counsel, will devote its round-up of the week's best legal posts to the Great Recession.



[1]             See the WSJ Law Blog’s post on the evolving law on gay marriage this week – Procreat[ion] Not Required.

[2]             Alas, there will always be lemons over at the Texas Lemon Law Blog (save those repair invoices!)

[3]             See Ruth Bader Ginsberg Hospitalized at the Volokh Conspiracy, reporting on Ginsberg’s fall from the seat of an airplane before take-off.

[4]             See the Law History Blog on Brewer’s Why America Fights.

[6]             Grandchildren who will not, I hope, have to deal with my Alzheimers, the perils of which are described at the Slutsky Elder Law and Estate Planning Blog.

[7]             Though, of course, e-books will be read side-by-side with hard copy as paper and cardboard eventually goes the way of Colonial era hornbooks. See Downloadable e-Books Change the Face of Brick and Mortar Libraries at the Law Librarian Blog.

[8]              Those games will, of course, exist side by side the video variety, many of which are recommended as Tools for Special Needs Students and Educators at the Adjunct Law Prof Blog this week.

[9]               See Hemp and Audacity at the U.S. Ag and Food Law Policy Blog.

[12]             Alas there’s still a gender gap as described this week at Ms. JD.

[13]             Voting rights are still a matter of concern today, of course. See Judge Says Virginia Violated Rights of Overseas Voters at the Blog of Legal Times.

[14]             See Rachel Anderson’s Law Blog on the scope of immunity for foreign officials that Anderson believes may have important implications for Plaintiffs seeking recompense for genocide.

[15]             One generation wants out and the other wants in. See Don’t Ask, Don’t Tell, Don’t Teach at Sexual Orientation and the Law Blog.

[16]             Earlier scientific theory posited that each human embryo (see Embryo Mix-Up at the Proud Parenting Blog) passes through a progression of abbreviated stages that resemble the main evolutionary stages of its ancestors, i.e., that the fertilized egg starts as a single cell (just like our first living evolutionary ancestor); as the egg repeatedly divides it develops into an embryo with a segmented arrangement (the “worm” stage); these segments develop into vertebrae, muscles and something that sort of looks like gills (the “fish” stage); limb buds develop with paddle-like hands and feet, and there appears to be a “tail” (the “amphibian” stage); and, by the eighth week of development, most organs are nearly complete, the limbs develop fingers and toes, and the “tail” disappears (the human stage). It turns out that this one-to-one correlation was too simplistic, but it remains safe to say that our biological development still passes through several stages that “recapitulate” the evolution of our species.

[17]          The amygdala is a region of the brain that permits the formation and storage of memories associated with emotional events. It permits us to “read” the emotional responses of our fellows and is thought to facilitated our ability to form relationships and live and work in groups. It is also the source of our “fight or flight” response to danger.

[18] In Cells that Read Minds, New York Times Science writer Sandra Blakeslee explained:

Studies show that some mirror neurons fire when a person reaches for a glass or watches someone else reach for a glass; others fire when the person puts the glass down and still others fire when the person reaches for a toothbrush and so on. They respond when someone kicks a ball, sees a ball being kicked, hears a ball being kicked and says or hears the word "kick."

 “When you see me perform an action - such as picking up a baseball - you automatically simulate the action in your own brain,” said Dr. Marco Iacoboni, a neuroscientist at the University of California, Los Angeles, who studies mirror neurons. ”Circuits in your brain, which we do not yet entirely understand, inhibit you from moving while you simulate,” he said. ”But you understand my action because you have in your brain a template for that action based on your own movements. “

[20]             Check out the post on the Betrayal of Corporate Clients at the Investment Fraud Lawyer Blog.

[21]             Wrongful death compensation over at the Product Liability Law Blog.

[22]             Looking toward the future, the Neuroethics and the Law Blog predicts that in the “experiential future, we will have better technologies to measure physical pain, pain relief, and emotional distress. These technologies should not only change tort law and related compensation schemes but should also change our assessments of criminal blameworthiness and punishment severity” here.

[23]             This week Beck and Herrmann at the Drug and Device Law Blog note that “shame works wonders” in their post on the Free Speech Challenges to the FDA.

[24]             Intentionally left blank.

[25]             ADR professionals are often heard critics of the adversarial system, as can be seen over at the Australian Dispute Resolvers Blog where author Chris Whitelaw (really??) quotes the Journal of Law and Medicine as follows:

The adversarial system of medical negligence fails to satisfy the main aims of tort law, those being equitable compensation of plaintiffs, correction of mistakes and deterrence of negligence. Instead doctors experience litigation as a punishment and, in order to avoid exposure to the system, have resorted not to corrective or educational measures but to defensive medicine, a practice which the evidence indicates both decreases patient autonomy and increases iatrogenic injury.

 (Iatrogenic, by the way, is a fancy term for “we have know idea whatsoever what the source of this ailment is). Chris is looking for comments so run on over there if you’ve been thinking about medical malpractice litigation during the marathon American health care debates.

 

Negotiating Politics: Mediators and Neutrality

Let's be clear about one thing.  Mediators are not human Switzerlands

We have opinions, often strong ones, about issues like the rule of law in America, negotiated resolutions to intractable conflicts, the proper role of force against another sovereign nation and whether torture is a tool Americans ought to be using in the name of national security.  

Because we mediators spend so much time listening to litigants' competing stories of right and wrong, I don't think I'm going out on a limb to say that we "get" the great gray expanses that separate fear from understanding, anger from compassion and "the truth" from one's subjective experience of it.

What motivated this post was a recent challenge to a mediator's "right" to express his political beliefs in a mediation forum.  "You're supposed to be neutral," said the challenger.  "It's wrong and unprofessional to express your political beliefs here."

As the Presidential election nears, I want to clarify my own views on mediation neutrality, particularly my belief that we mediators do and should leave our neutrality when we close the mediation room door. Neither I, nor this blog, is "neutral" about the upcoming election.  I am actively campaigning to elect Barack Obama because I believe he is best suited to withdraw our troops from Iraq, reconcile ourselves with the world community, respond to conflict as a negotiator rather than as a conquerer would, and restore the damage done by the Bush administration to the rule of law in America.  If I cannot say this because I am fearful of offending some of my readers or concerned that some potential clients will choose not to use my services, I would count myself unworthy of the freedoms fought for by those who came before us.    

What it Means to Be an ADR "Neutral"   

Though there is disagreement among scholars about the precise nature of "mediation neutrality," a recent article on the subject at BeyondIntractability.com expresses my own view.  That article quotes negotiation gurus Kevin Gibson, Leigh Thompson, and Max Bazerman on the three distinct types of neutrality that mediators can and do practice.    

    • Neutrality as impartiality, which holds that the mediator should be free of bias and should set aside his or her opinions, feelings, and agendas;

    • Neutrality as equidistance, which focuses on the idea that mediators should try to give equal consideration to each side; and, 

    • Neutrality as a practice in discourse.

These theorists believe, as do I, that it is part of a mediator's job to assist the parties in framing the problems and to lend guidance in expressing their tales of injustice to one another.   The mediator, say these scholars,  

gives each side a chance to talk about their positions and concerns, and then reframes these issues in a more neutral way so that parties are more likely to listen to and understand the other side's viewpoint[, t]hne helps the parties . . . explore settlement options and to move toward a solution that all can agree on.

Neutrality from this viewpoint "means that the mediator who facilitates this discussion should not have an interest in advancing the goals and positions of any party involved." 

Leaving One's Neutrality at the Mediation Room Door 

To help people resolve conflict requires a mediator to develop certain ways of listening; particular ways of communicating; and, specific ways of thinking about the malleability of "objective reality" in our subjectively experienced lives.  The practice of mediation is also revelatory of the raw power of people's affiliative desires -- their persistent urge to reconcile differences and settle accounts.  

When I leave the mediation room, I remain a mediator in spirit -- one who has seen the value of negotiated resolutions over the useof brute force and the power of collaboration over deference to an authoritarian decision-maker. 

I cannot express my preference for  Barack Obama any better than my friend and mentor Ken Cloke did in the electronic pages of mediate.com this spring.  As he concluded,

[c]apable international diplomacy requires open and committed listening, informal problem solving, prejudice reduction, collaborative negotiation, public dialogue, mediation, arbitration, ombudsmen’s offices, conflict resolution initiatives, and a panoply of proactive, adequately-funded resources that can be brought to bear on any problem. Positive examples can be found in every successful mediation and collaborative negotiation. Ideally, peace-making should receive the lion’s share of our national budget, allowing us to train every diplomat, and international representative in the most advanced mediation skills, include mediation in every treaty, and form an international corps of conflict resolvers, capable of building conflict resolution capacity globally, including in the US.

As mediators, we need to recognize that we also are global citizens, and responsible by virtue of our knowledge and experience for helping to save the planet. We need to weigh in on the important issues of the day that directly touch on our expertise, including not just who we negotiate with, but how we negotiate and why. Without it, Obama and the perspective he represents may succumb to those who think patriotism requires war and the slaughter of innocents. The time to speak up is now.

In electing a new President to lead us into a productive future, I believe, as do many of my mediator friends and colleagues, that Barack Obama is the clear choice.  If our political future is important to us, we will not hesitate to publicly lend him our support.

 

Drug and Device Law Blog Achieves Enlightenment

The guys at Drug and Device Law Blog in Random Thoughts on Randomness have gone stark raving sane.  Please send medical assistance.  Western medicine.  With their stats, this could turn into a pandemic.

We admit it: We're as crazy as the next guy.

Heck -- given that we spend nights and weekends feeding this blog, there's a pretty strong argument that we're crazier than the next guy.

We fret about whether each and every one of the ten million documents has been reviewed and coded correctly, and we change commas into dashes -- and back again -- in footnote nine on page thirty of the brief.

We believe that our clients are more likely to win if we do our jobs right, and we devote an awful lot of energy to that cause.

And then the system kicks in.

Courts make utterly unpredictable procedural rulings that dramatically change the value of our cases. The MDL Panel, for example, may decide to consolidate a set of cases in a jurisdiction that previously had nothing to do with the litigation -- like sending Breast Implants to Alabama or Albuterol to Wyoming -- and all of a sudden an unanticipated body of local appellate law governs your federal issues, and your cases are either won or lost for reasons beyond your control. (See In re Korean Airlines, 829 F.2d 1171 (D.C. Cir. 1987).)

Or you tee up a legal issue in front of a judge, and you can't predict the result, because the cases are breaking fifty/fifty in that area. The judge might grant summary judgment, or he might deny it. Or, as happened in Tucker v. SmithKline Beecham recently, he might grant the motion in September and reconsider the following July. Your lawyering skills presumably had nothing to do with it.

One judge grants a Daubert motion, holding that the evidence linking Accutane to inflammatory bowel disease is junk science, inadmissible in a court of law. But, a couple of weeks earlier, a New Jersey jury had awarded millions of dollars of damages based on that same evidence.

One judge holds that a claim accrued on the day the plaintiff was diagnosed with a disease, and another holds that the identical claim -- on identical facts -- didn't accrue until the plaintiff "discovered" his claim based on press coverage or an article in the scientific literature. The statute of limitations bars the first claim; the second one goes forward.

You're a hero or a goat, and you had nothing to do with it.

One judge holds that the warnings on your client's product are adequate as a matter of law. Another holds that the question of adequacy is one of fact, to be decided by a jury.

One jury then finds in your client's favor, but a second jury -- looking at precisely the same warnings -- finds the opposite.

We're not complaining about this, really.

They're our lives, after all, and we picked this profession, and it can be awfully exciting and challenging and, yes, fun.

But doesn't it sometimes feel a tad random?

More to the point, our system sinks tens of millions of dollars into massive discovery to ensure that every last fact is known -- presumably in pursuit of an accurate result. But those carefully honed inputs then yield results that are both unpredictable and flatly inconsistent with each other (which means that at least one was wrong).

If the system ultimately values cases wildly inconsistently, just why does society invest massive resources into trying to ensure accuracy? Aren't there better things to do with our collective wealth?

But we digress.

We have to go back to scrutinizing the footnotes in all of the drug and device precedents, to pry out of them every last ounce of utility for our clients.

If we didn't, then a brief might not be perfect, and we might be more likely to lose.

Getting the Parties to the Bargaining Table, Part II: Using Outside Settlement Counsel

In this part of the new series on getting the parties to the bargaining table, I interview former in-house Chrysler counsel and former Hogan & Hartson partner, Lew Goldfarb, who now has his own full-time outside settlement counsel firm.  

For Lew's full bio and contact information, click here.

 

  • what's the difference between outside settlement counsel and a mediator?

Settlement counsel is an advocate for one side, in my case, that's usually the defense.  While the mediator is a neutral who tries to facilitate a compromise, settlement counsel attempts to achieve better outcomes for his clients for two reasons:  (a) I have a complete understanding of the full range of my clients' interests, many of which are often not communicated to litigation counsel; and, (b) it is easier for me to learn the true motivations (if not the bottom line) of plaintiffs' counsel than it is for litigation counsel to do so.

In class actions, which are my specialty, I strive to craft a solution that responds to plaintiffs' counsel's needs while imposing minimal costs on my client. There are numerous, creative ways to settle class actions that accomplish both objectives effectively.

  • I sometimes find that the parties for whom I mediate have not confided in the litigation team all of the corporate interests that are propelling the client toward settlement. I found this to be true in litigation practice and as a mediator. Do you encounter this as outside settlement counsel and, if so, how do you serve the client's interests without stepping on the toes of litigation counsel and vice verse.

There's always a bit of a communication gap between litigation counsel and the client.  When clients hire me as settlement counsel it's in their interest to provide me with complete information in order to get them the best possible outcome, so they rarely withhold any important information fro me. In a recent case, I was not only invited to speak at several client board meetings, I was also asked to spend several days in the field on sales trucks to observe the client's franchisees that were the subject of the lawsuit.  As a mediator, I usually only see the information that the litigation counsel provides as part of his client's submission, which is probably much more selective.

  • Now that I've been mediating full time for four years, I find I'm much more prone to ask the parties interest-based questions than I was as a litigator. When I say "interest based," I mean corporate realities such as chain of command; upcoming mergers or acquisitions; a new management team; quarter- or year-end financial planning; divisional loss history; and, the like.  If you find that to be true as outside settlement counsel, what do you think accounts for corporate counsel keeping their litigation team largely in the dark about issues that might have a substantial impact on the ultimate resolution of the matter?

Since I have always approached litigation with a view toward early resolution, either as in house counsel, outside litigator or mediator, I would usually make the same inquiries regarding the client interests that you do as a mediator. My only explanation as to why corporate counsel may withhold such information from their litigators may be that they are not seeking a negotiated outcome. In that case, they may believe that their litigators will be more effective and focused without being encumbered with "interest-based" information.

  • My peers in the mediation world are fond of saying that litigators have to "churn" cases before settling them. I find that a shockingly cynical attitude.  I often found that clients were more settlement averse than their litigation counsel.  What is your experience in that regard?

I have to admit that I am more on the side of the cynics. I've had this longstanding belief that the legal profession imposes enormous economic costs on society without a commensurate benefit to the public, all in the name of providing access to the legal process. (See Goldfarb v. Virginia State Bar, 423 U.S.886 [1975]) I believe that litigators tell themselves that they were hired to litigate not settle the case. I think it's less a matter of "churning" than it is the litigators' belief believe that "early" resolution means winning a dispositive motion, even if it takes a year or more to get an outcome. (See my article "Litigate it or End it" which discusses this issue.)

While there are always legitimate corporate reasons for not settling a case, litigators are reluctant to discuss early settlement with their clients for two reasons: (1) loss of fees; and, (2) fear of showing any lack of resolve to win the case. My experience is not that clients are settlement averse, rather that litigation counsel convince their clients to hold off on settlement for one more dispositive motion.

  • How did you come to champion the use of settlement counsel? 

I honed my skills as settlement counsel while serving for 16 years in house at Chrysler. When I arrived at Chrysler in 1985, the company was engaged in costly litigation with GM over a GM/Toyota joint manufacturing venture in Calif. The General Counsel asked me to look for alternatives to the litigation, which is when I found an article by Roger Fisher of Harvard promoting the use of separate settlement counsel. Chrysler did so and settled the case within a few months. I was then placed in the role of overseeing all class action litigation and serving as settlement counsel as well. Most in house counsel are not sufficiently immersed in the litigation, however, to serve as settlement counsel or simply do not have the time.

  • As a former litigation partner in an AmLaw 100 law firm, do you wish you'd had inside settlement attorneys working side by side the litigation team? 

Because of my experience as in house counsel settling cases, I was always the partner urging my fellow litigators to evaluate settlement possibilities. For all the reasons set forth in my answers above, most large law firms do not embrace the idea of institutionalizing an in-firm settlement section. One exception was Wilmer Cutler in DC which did set up an ADR group within the firm with the idea that clients would make use of it. I don't know whether it still exists. I still think it is a great idea, although not as effective as the hiring of a completely separate firm or individual to explore settlement.

  • Doesn't it take outside settlement counsel an unnecessarily long time to "get up to speed" on a major piece of litigation -- thereby making it less cost effective than simply hiring a mediator to help the litigators settle their own cases?

Not at all.  When I take on an assignment as settlement counsel I provide the client with a budget that includes a separate breakdown for "up to speed" time. While I need to understand the merits of the client's defense I do not need to read all the briefs since I generally am not called on to argue the merits of the case. Most importantly, I must fully understand what the client's interests are and what it is willing to offer up in settlement. For better or worse, what I offer is a very low cost, low risk means of exploring and settling complex litigation. 

Thanks Lew!  I can think of a couple of complex anti-trust, securities and IP cases I could have used your services for.  I hope this interview gets the word out to attorneys feeling pressured to settle a difficult case but unable to get the other side to the bargaining table.

Mediating and Arbitrating International and Complex Commercial Disputes

We continue today with our multi-part series of interviews with JAMS GC Jay Welsh in which he and  Michael McIlwrath, Senior Counsel, Litigation for GE Infrastructure - Oil & Gas, talk about mediating and arbitrating international and complex commercial disputes.  They also discuss the mediation of class actions, particularly those arising from mass torts.  

.  

 

Riegel v. Medtronic: An Opportunity for Industry and the Government to Do the Right Thing

What does the decision in Riegel v. Medtronic have to do with dispute resolution?  A lot if we collectively pause to commit ourselves to using this calamity/victory as an opportunity to benefit both industry and the public at the same time.  

Is that possible?  I'm a mediator for goodness sakes.  If I didn't believe that to be possible, I'd serve the world better by getting a real estate license.  

Re:  what follows:  I rarely see anyone representing a narrow set of industry interests respond to a victory of any magnitude with the humility and vision expressed by Mark Herrmann in his post from Drug and Device Law -- Much is Given, Much is Expected, excerpted below. 

The medical device industry, or at least the most innovative part of it, received major relief from product liability litigation yesterday in Riegel v. Medtronic (now online at 2008 WL 440744). As long as our clients with PMA-approved devices comply with federal law, they’re not going to be subject to much in the way of product liability. Not only that, as we pointed out only two weeks ago, so-called “parallel” (or “violation”) claims have their own conceptual problems, given the exclusive grant of enforcement authority to the FDA.

That’s not what we’re talking about right now, though. We’re stone, cold sober.

We won. What does that mean? At bottom, it means that, just as Riegel gives some of our clients the opportunity for a more litigation-free existence, that increased freedom carries with it a correspondingly increased responsibility.

Plaintiffs lawyers like to say (at least when they’re not piously denying the “regulatory effect” of tort law in briefs opposing preemption) that product liability litigation serves as an incentive to make safer products.

We defense lawyers retort that product liability litigation is horribly ineffective (given the influence of so many non-merits issues), inefficient (plaintiffs’ lawyers take 33% or more of most recoveries, and that’s not even counting defense costs), and downright counterproductive (deterring innovation, and punishing manufacturers for doing the right thing when they discover problems) compared to governmental regulation as a means of ensuring product safety.

Well, now we’re going to find out who’s really right.

In other words, the PMA medical device field is going to determine in practice whether a high regulation, low litigation environment is as effective a method of ensuring the safety of the public as we think it is – or if it’s as lousy a way of ensuring safe medical devices as the other side claims.

So, to the medical device industry – to the regulators at the FDA – and to our colleagues who practice FDCA regulatory law…. Don’t let us down, please.

Live and Free Vioxx Settlement Forum Conference

Thanks to Drug & Device Law for pointing us to the CSPAN video of a recent forum on the VIOXX settlement here.

This American Enterprise Institute forum will not be beneficial to plaintiffs who are searching for advice on whether to accept the settlement themselves. I refer those people back to their attorneys. 

Here's a link to a Yahoo discussion group for Plaintiffs making the decision whether to accept the offer.

For reporters who are following this story at depth, the video includes a sophisticated presentation by Jones Day attorney Mark Herrmann about settlement strategy from Merck's point of view; a provocative presentation by Professor George M. Cohen -- who calls the settlement proposal an illegal antitrust conspiracy -- and a scholarly presentation by Professor Nagareda on the public policy issues raised by the settlement of mass tort claims.  

For attorneys who have been retained to provide their clients with a second opinion, Professor Cohen's presentation will be a useful addition to their own research and independent conclusions.  Attorney Andy Birchfield -- the only forum speaker with first hand knowledge of the negotiations leading to the settlement proposal -- may be of the greatest interest as he walks counsel for Plaintiffs through the structure, purpose and effect of the proposed settlement program.  

Speakers in this forum include:

The incredibly well-spoken Mark Herrmann of Jones Day and the Drug & Device Law Blog. 

Mark modestly fails to mention in his Blog post concerning this video that he is one of the speakers on this panel. 

Herrmann discusses the following questions:

  1. did Merck's settlement strategy make sense; and,
  2. will this settlement buy Merck peace.

 

 

George M. Cohen, University of Virginia Law School Professor who discusses ethical issues pertaining to the "settlement program proposal."  

Professor Cohen not only concludes that attorneys recommending this proposal to their clients are violating professional ethics, but asserts that it constitutes an illegal antitrust "conspiracy" as well. 

 

 

 

Vanderbilt Law School Professor Richard Nagareda, author of the book Mass Torts in a World of Settlement

Professor Nagareda discusses the settlement from a dispute resolution public policy standpoint. 

As a contract between Merck on the one hand and the "lawyers who have a large market share" on the other, Professor Nagareda suggests that the settlement proposal is more an artifact of the law flowing from the Supreme Court's AmChem opinion than of any legal "connivance" among the Plaintiffs' attorneys or between them and Merck.

This settlement proposal, he says, is a valuable and creative peace-making transaction for mass claims.   

Andrew Birchfield, an attorney at Beasley Allen and co-lead counsel on the Plaintiffs’ Steering Committee for the federal Vioxx litigation addresses the negotiations themselves and the structure of the settlement.

Andy says that in approaching settlement Merck required global peace -- that there couldn't be a "second round" because Merck had seen how disastrous open-ended liabilities could be for a corporation.

The plaintiffs' attorneys, says Birchfield, negotiated a settlement agreement designed to serve the best interests of each individual client no matter how strong or weak each of their cases might be.

Attorney Ted Frank of the American Enterprise Institute who once represented Merck in the Vioxx litgation. 

Frank talks about the law and economics of the settlement proposal, focusing on the weakest link of Plaintiffs' cases -- causation.

 

See also the Blog of the Legal Times coverage of this forum here.

Some Vioxx Attorneys Seek Judicial Relief from Ethical Conundrum

Claiming that the $4.85 billion Vioxx Settlement improperly "allows [defendant] Merck to dictate the advice a lawyer will offer" to clients, some Vioxx plaintiffs' attorneys have asked the federal judge overseeing the deal to "keep some of their clients outside the settlement while still allowing other clients to accept it."

Under the global settlement agreement reached by lead counsel in New Orleans last month, "if the lawyers want any of their clients to receive money from the settlement, they must recommend the deal to all their clients." 

Those attorneys resisting the requirement are saying not only that the provision "would prevent them from offering the best independent judgment for each client" but that "[a]greeing to the provision might open them to future lawsuits from disgruntled clients."

All quotations above are from Alex Berenson's New York Times article, Some Lawyers Seek Changes in Vioxx Settlement. 

Previous commentary on the ethics of this provision by legal bloggers, including our own thoughts here, can be found at the Legal Ethics Forum here, the Wall Street Journal Law Blog here, FindLaw here; the Mass Tort Litigation Blog here;  Drug and Device Law here (but please don't call them for comment); Texas Lawyer here; and, Pharmalot here.

Have you ever seen such high level free legal advice in your lifetime?  And it's not even redundant.  So, no, Concurring Opinions, I don't think we've saturated the legal blogosphere.  I think everyone is just taking a deep breath to sort through the talent and find their niche.

In the meantime, have we stopped being troubled by the advertisement of pharmaceuticals direct to consumer (image above) as if they were laundry soap? 

Disputing Settlement: Clash Over Distribution of $7.8 Billion in Enron Settlement Funds

If the generation of $7.8 billion in settlement monies for Enron's fleeced investors doesn't give you a deep sense of year-end justice being done, you haven't seen the documentary chronicling the rise and fall of one of the most arrogant corporate economic criminals in American history -- ENRON -- The Smartest Guys in the Room.   (see the trailer here)

These monies were not, however, torn from the entrails of ENRON's corpse nor taken from the pockets of its principals. These funds, as Forbes.com reports in Judge Mulls $7.8B Enron Settlement Plan, "come mostly from such financial institutions as Bank of America, JPMorgan Chase & Co., Citigroup and Canadian Imperial Bank of Commerce," companies that lawsuits allege "worked with Enron [and] participated in the accounting fraud that led to the bankruptcy of the once-mighty energy company."

The Settlement Plan? 

According to the AP article carried by Forbes.com,

Most of the money will be distributed to investors and shareholders who lost money on securities directly issued by Enron or its predecessor companies. A small portion will go to those who got securities from Enron-related entities.

In general, the plan is calculating shares of the settlement fund based on a formula that factors in such things as when a security was bought or sold, the purchase price paid and the type of stock that was bought.

To be eligible for the settlement, investors and shareholders needed to have bought Enron or Enron-related securities between Sept. 9, 1997 and Dec. 2, 2001. 

The Dispute?

With this much money at stake and so much damage done to investors, you can imagine that there is not simply one dispute but many.  

Robert Finkel, for instance, an attorney representing investors who have already won between $60 and $80 million from financial firms in securities suits was quoted as saying

It's our money. . . There should be no commingling of money."

And Stephen Neuwirth, representing another group of investors, has objected that the plan prevents shareholders who received their Enron stock as gifts from filing claims.  

For a copy of the plan and other explanatory materials for Enron Shareholder Class members, click here.

Settlement of the Week: $57.5M in Sprint Nextel Shareholder Class Action

Forbes.com channels AP's report on the recent settlement of the Sprint Nextel securities class action in Judge OKs $57.5M Sprint Stock Settlement

This hefty settlement follows recent predictions  that settlement values of securities class actions will decline. 

In its October post Will Settlement Values Decline?, for instance, we learn from the Risk and Governance Blog that at least one analyst (NERA): 

predict[ed] that settlement values may start trending downward after reaching a record high this year. The median settlement during the first six months of this year was $9 million, up from $7 million in both 2006 and 2005, according to NERA.

The NERA researchers base this prediction on recent declines in the median investor loss, which historically has been a “strong predictor” of settlement values. For cases that settled in 2007, the median loss was $381 million, less than the $407 million median loss for cases that were resolved in 2006. This trend is also apparent if one looks at new lawsuit filings. The median investor loss for cases filed in 2007 was $240 million, down from $265 million in 2006 and $340 million in 2005.

These trends are early hints that recent filings might not lead to continued increasing average settlement values in the future, although it is still too early to know which of the recently filed cases will result in settlement as opposed to dismissal,” the NERA researchers explain
.

Meanwhile, Forbes reports that that the Court in the Sprint Nextel settlement set aside 27.5 percent, or $15.8 million, for plaintiffs' legal fees, as well as an additional $2.2 million for plaintiff expenses.

For the full Forbes article, click here.


Collaboration and Persuasion, Not Railroading, the By Word of the Vioxx Judges

(photo of Rofecoxib from the Molecular Expressions Website)

Let me just say I'm prejudiced on this topic before we begin yet another discussion of the Vioxx settlement -- this one focusing on the stellar and collaborative case management skills of the jurists responsible for managing these cases through litigation, trial and settlement.

Having litigated complex commercial litigation in both State and Federal Courts, primarily in Los Angeles but also in other cities and states as well -- I don't believe there is any Court anywhere with a better group of Judges than those who preside over the Los Angeles Superior Court's Complex Case program in Central Civil West.

I was a true-believer of the benefits of the Complex Court on the first day my nine-figure environmental insurance coverage dispute was reassigned from a downtown courtroom to the Hon. Carolyn B. Kuhl, presently the Presiding Judge of "Complex."  

My respect for the Complex Court only grew when I became Judge Victoria Chaney's superannuated law extern while pursuing my LL.M degree in Conflict Resolution at the Straus Institute. 

So it is no surprise that Judge Chaney was one of those Judges who were highly instrumental in pressing the parties to resolve one of the most sophisticated mass tort cases ever -- and not by "twisting arms" or "banging heads," but by the art of case management, collaboration and principled persuasion.    

Kudos are also owed to Susan Todd, staff writer for the Star-Ledger, who wrote the following account of the settlement negotiations from the Judges' perspective.  Ms. Todd's article, Behind the scenes of the Vioxx settlement can be read in full here.  Below is an excerpt from yesterday's paper.

By December 2006, there had been enough [Vioxx jury] trials for both sides to recognize the strengths and weaknesses of their arguments, [New Jersey Superior Court Judge Carol] Higbee said.

Both sides had spent a lot of money, but the litigation was still progressing too slowly.

That month, [U.S. District Judge Eldon] Fallon, Higbee and [Ass't Supervising Complex Court Judge Victoria] Chaney met in New Orleans. Over dinner, they prepared for a meeting the next morning with attorneys from both sides. It was time, the judges had decided, for the lawyers to discuss a resolution.

The judges urged the lawyers to begin talking. They asked for monthly meetings and regular progress reports. They emphasized, among other things, the need to move the cases along.

"We were simply not going to be able to continue this slow progress," Higbee said. "It would go on forever."

Six months later, in June, the judges notified the team of plaintiff attorneys they intended to meet with Merck's legal team, Higbee said. The pace of the litigation weighed on the judges.

"Trying the cases one at a time was no longer going to be an option," Higbee said. "We never thought we would try all the cases, but there was a chance we would try another 500 cases."

The judges told Merck's lawyers they would have to start spreading the cases out among more judges, which would diminish the chance of getting a settlement. "The chance of a fair resolution was much more likely," Higbee said, "while there was a control of the litigation by the three judges."

The Judges' Management Strategy Plus the Three-Year Statute of Limitations, Pushed the Negotiations Along

Kent Jarrell, an outside spokesman for Merck's legal team, said the possibility of the lawsuits being spread out among additional judges was "a factor" that pushed the negotiations along. But Jarrell said the three-year statute of limitations, which arrived at the end of September, also was a big factor.

The statute of limitations on filing new cases gave Merck a clear definition of the litigation's magnitude, and that would prove to be a key factor in Merck's ability to formulate a settlement.

The settlement negotiations, which grew more serious during the summer months and into the fall, culminated in the early morning hours of Nov. 9.

"Both sides had a similar goal -- to settle as much of the litigation as possible and to pay people with the strongest cases, the most serious injuries, the most money," the judge said.

Higbee believes the settlement will ultimately succeed. "I'm anticipating they will get more than 85 percent of the cases," she said.

Vioxx, Justice and Hypothetical John Doe

(above:  National Geographic's Odds of Dying chart from inkycircus)

I'm a student of the social psychology of conflict.  Of in-groups and out-groups.  Of choosing sides and aligning interests.  Of polarization and cognitive biases. 

But I just never get it when a newspaper reporter -- even someone living as rarefied a journalist's life as New York Times reporter Joe Nocera -- sheds crocodile tears for BigPharma.

Call me crazy.  Call me neutral.  But the recently settled Vioxx cases never struck me as low-merit, extortionate rip-offs nor as slam dunk victories for injured consumers or their survivors.

Why?  For all the reasons Joe notes -- it's extremely difficult to prove that one assault on a person's physical well-being (the use of a potentially life-endangering drug) is a more likely explanation for stroke, heart attack or death than the thousands of other reasons we all eventually die -- obesity, smoking, genetic pre-disposition, exposure to toxic chemicals in the workplace, stress and the like.     

John Doe's Alleged Vioxx-Related Heart Attack

In negotiating the settlement of litigation, I find it best when people actually engaged in the dispute are in the room because it tends to focus the parties on the intricacies, texture, dimensionality and simple messiness of real life.

With that in mind, I'll use a hypothetical to put a little flesh and blood into the debate.  More precisely, I'm going to use a hypothetical John Doe who had a heart attack about ten months after he started taking Vioxx.    

What Merck Did and Failed to Do

As Nocera acknowledges in his article Forget Fair, It's Litigation as Usual,  Merck did not behave with the high level of caution the consuming public would expect of a drug manufacturer creating and marketing a product we ingest to help make us better.  I mean, no one was taking Vioxx as a recreational drug, right?  Here's what Nocera says about Merck's marketing of Vioxx.

[Merck] caught a serious case of blockbuster fever in the 1990s. In its effort to crank out drugs with $1 billion or more in annual sales — the definition of a blockbuster drug — it over-reached. . . . 

Merck spent hundreds of millions of dollars marketing Vioxx, largely through direct-to-consumer advertising, portraying it as some kind of miracle pain reliever. So instead of having a few hundred thousand users in the short time it was on the market, it had 20 million. Its annual sales grew to $2.5 billion a year.

Even before the drug was approved by the Food and Drug Administration, there were rumblings in the scientific community that Vioxx might increase the risk of heart attacks or strokes. It’s not quite right to say that Merck completely ignored those potential problems — but the company certainly tried to avert its eyes.

. . . At Merck . . . “there was a kind of studied ignorance” of the possibility that Vioxx could increase the chances of a heart attack — even after one study, called Vigor, suggested that the drug could quadruple the heart attack risk. Only in 2004, when another study confirmed the increased risk, did Merck finally react — by taking the drug off the market.

(emphasis mine).

So Merck was making billions of dollars on a drug that probably should not have been marketed to the general public.  Merck ignored the medical research -- some of which showed the drug could quadruple the risk of heart attack -- until yet another study confirmed the increased risk.

Nevertheless, Nocera worries about a judicial system railroading Merck into creating a fund for people who are able to demonstrate that the drug likely caused stroke, heart attack or death.   

John Doe's Bereaved Family Seeks to Recover for Their Devastating Loss  

As Nocera notes, you can never really be certain what caused your cancer or heart attack.  No one will ever know for sure why your brother had a stroke at 35 when everyone else in your family lived into their nineties. We all have medical histories that make us vulnerable to one or more life-threatening conditions that will eventually kill us off.  As the National Geographic recently noted in the chart reproduced above, our odds of death from any and all causes are 100%.

We'd die if we lived in a bubble.

Continue Reading

Vioxx Settlement: Ethical Dilemma or Common Attorney-Client Conflict?

(image links to ABC News article on New York's own recent lawsuit against Merck)

In his provocative Los Angeles Times article Vioxx deal may cause pain, staff writer Daniel Costello asks whether the contingent settlement agreement we've written about here, here and here raises an ethical dilemma for Plaintiffs' attorneys.

(and for a well-informed and thorough analysis of the settlement, see the Mass Tort Litigation Blog article on the issue here)

As Costello reports: 

The highly unusual agreement not only requires 85% of plaintiffs to agree before it can be finalized but also might unduly force some claimants to settle or risk losing their lawyer.

That's because the deal includes highly unusual restrictions on plaintiffs' lawyers. The settlement requires them to recommend the deal to all of their clients or none. In addition, lawyers must stop representing any clients who turn it down as long as they don't violate ethics rules.

The agreement was hammered out by Merck and a committee of top trial lawyers who represent Vioxx claimants. Lawyers for both sides said it was a good deal because it provided immediate and fair compensation instead of lengthy trials with uncertain outcomes. Merck requested the all-or-nothing conditions because it feared lawyers would settle weaker cases and cherry-pick stronger ones for trial and possible higher payouts.

Stephen Gillers, a professor of ethics at NYU School of Law, wins the compelling legal metaphor of the year award for suggesting that

Clients are not inventory that lawyers can just shed when they become inconvenient. It's forbidden.

Local trial attorney Tom Girardi, however, who took at least one 'bellwether' Vioxx case to a jury verdict before Assistant Supervising Complex Court Judge Victoria Chaney in Los Angeles earlier this year, notes that it is 

always the clients' decision to accept a settlement or not, and lawyers aren't going to do anything that's unethical [and that] those considering [whether to accept the offer] should know these are not easy cases to try in court.

So is a Mass Tort Injustice on the Horizon?  Not Likely. 

The law -- and the contract between attorney and client -- gives both the right to withdraw from the attorney-client relationship for any or no reason.  Generally, however, the relationship continues unless the same type of "irreconcilable differences" that permit husband and wife to divorce, arise between counsel and client.    

One of the most common reasons for the dissolution of the attorney-client relationship is a disagreement over settlement.  The attorney is not, of course, the client's indentured servant and the client is neither chattel nor "inventory."   

If the attorney believes the client has been offered a settlement that is a better alternative to further litigation and trial, he would dishonor his ethical obligation if he didn't say so.  If the client disagrees and their difference of opinion cannot be resolved, they separate.  

The only ethical requirements on the part of the attorney in this circumstance are:  (1)  not to abandon the client or separate at a time when it would cause harm, i.e., bowing out on the eve of trial; and, (2) not putting the attorney's own interests above those of the client.

This is where that pesky contingency fee comes in. 

Any attorney who has a one-third to fifty percent financial interest in a settlement reached or judgment entered in his client's case will often appear to have a financial interest that conflicts with his client's.  This apparent conflict, however, is actually more of a guard against unnecessary litigation than the defense lawyers' practice of charging their clients an hourly fee. 

A contingency attorney lives or dies by his ability to assess the risk of victory or loss and maximize the value of the threat of further litigation and trial to the defendant.  

When the contingency fee intersects with mass tort practice, however, common daily  practice is writ so large that the tension between attorney and client that accompanies all personal injury litigation can be made to look like injustice -- clients as inventory and attorneys as self-serving monsters.

Let's Talk About the Risks in the Real World

Tom Girardi, after trying a brilliant case to the jury in Judge Chaney's courtroom, lost to Merck.  In closing, Merck's attorney argued to the jury that Tom's client was "all in" based upon his testimony about the number of Vioxx tablets he'd taken. 

Clients, however, just like any other fallible human beings, "forget" or dissemble.  Whatever the Plaintiff's "true" recollection, the pharmacy records proved otherwise.  He had not only not taken the number of Vioxx tablets prescribed -- his recollection of how many he took was not even close.  

Can the Vioxx attorneys predict victory?  No.  Can Merck?  Nope.  Did both sides take their best shot at trying a couple of dozen cases at enormous expense.  I think so.

Is there an ethical problem here?  Not likely. These are some of the best personal injury trial attorneys in the country.  And they don't get that reputation by settling their clients' claims for less than they're worth.  

"You're not going to get a deal done by email." More on the negotiations that settled Vioxx

Getting our hands around the Vioxx settlement dynamics reminds us of the old story about the blind men and the elephant.  Everyone has a different story to tell. 

This one is about the power of  a Judge who monitors the negotiations to decide when the time to close the deal is right and this particular Judge's wisdom in strategically using that power.  

As the New Jersey Star Ledger reports (Lawyers hunkered down in Big Easy)

On Sunday, U.S. District Judge Eldon Fallon had telephoned plaintiff attorney Russ Herman in New Orleans and his Merck counterpart, Doug Marvin in Washington, D.C. "You're not going to get a deal done by e-mail," Fallon told them firmly.

The judge didn't care where they went, Herman said yesterday from his New Orleans office, he just wanted them -- all of them -- in one place. Fallon wanted the settlement done by the end of the week.

They converged in New Orleans, where they averaged three hours of sleep a night and lived on pizza, gumbo, diet coke and coffee.

And before dawn yesterday, they finalized the agreement . . . 

This was not, of course, the first time these high-powered lawyers met to resolve the most aggressively defended pharmaceutical litigation in remembered history.

From the Star Ledger again

Herman, the plaintiff attorney in New Orleans, said the judges, including Fallon and state Superior Court Judge Carol Higbee from Atlantic City, ordered negotiations to begin last December. The judges' message, said Arnold Levin, who helped negotiate the settlement, was it was a good time to get started because the litigation had matured, or progressed.

Over the course of the past 11 months, two teams of attorneys -- 10 in all -- met face-to-face as many as 50 times in a variety of cities across the country. The negotiations, which remained confidential until late Thursday, involved as many as 100 conference calls, Herman said.

They Don't Call Them "Behind the Scenes" Negotiations for Nothing

As the Star Ledger coverage concludes:

"Negotiations over a multibillion settlement only work when they're done confidentially," Herman said, adding the attorneys were under orders by the judges to keep them secret.

In New Orleans, it was nearly 5 in the morning when the attorneys finalized the agreement. Most went off to their hotel rooms to nap or shower before they had to head over to a regularly scheduled conference before Judge Fallon.

And never underestimate the power of pizza, coca-cola and sleep deprivation to get the deal done. 

No waterboarding required.

How Tough was the Vioxx Negotiation? "Each lawyer had a greased football and was running like a wild monkey"

(right:  wild monkey)

Catch the thorough and fascinating Law.com report on the Vioxx settlement here.

And yes, only a Plaintiffs' trial lawyer from New Orleans can get away with similes like that!

Settlement negotiations began last December and have proceeded fitfully since, reportedly spurred on by Fallon and other judges. The final stretch began Thursday morning at the New Orleans offices of Russ Herman, liaison counsel for the plaintiffs, and wrapped up Friday morning around 5 a.m.

Herman says the primary lawyers for the plaintiffs included Chris Seeger of Seeger Weiss, Birchfield of Beasley Allen, and Arnold Levin of Levin, Fishbein, Sedrad & Berma. Merck was represented by Doug Marvin of Williams & Connolly, John Beisner of O'Melveny & Myers, and Adam Hoeflich of Bartlitt Beck. "It was a true, hard-fought rough and tough negotiation on a very high, professional plane," Herman told Legal Times, ALM's Washington weekly.

(left:  football without the grease)


Herman says a general deal was struck 10 days ago. "But the devil's in the details and they can break down at any point," says Herman. "Nobody raised their voice. Or made threats. But people's positions were very hard. It was like each lawyer had a greased football and was running like a wild monkey."

 

Contingent Settlement of the Year: Merck Agrees to Pay $4.85 Billon to Settle Vioxx Suits

(photo:  Vioxx back in the day . . . . )

We were just talking the other day at the IP ADR Blog about the power of contingent agreements to settle lawsuits in connection with the recent Verizon/Vonage settlement here.

Now its the turn of another BIG "V" LAWSUIT -- Merck's Vioxx litigation -- to benefit itself with the largest drug settlement ever but only in the event 85% of all 26,600 litigants agree to drop their cases.

Here's an except and link to the MSNBC article on the settlement:  

TRENTON, N.J. - Merck & Co. said Friday it will pay $4.85 billion to end thousands of lawsuits over its painkiller Vioxx in what is believed to be the largest drug settlement ever.

The deal becomes binding only if 85 percent of all plaintiffs in about 26,600 lawsuits agree to drop their cases. It was finalized in the early morning hours after attorneys for Merck and the plaintiffs met with three of the four judges overseeing nearly all Vioxx claims.

Merck faced personal injury lawsuits representing 47,000 plaintiffs, and about 265 potential class action cases, filed by people or family members who claimed the drug proved fatal or injured its users. The agreement covers cases filed in both federal and state courts
.

See the Wall Street Journal Law Blog's coverage More on Vioxx:  Mass Torts in a World of Settlement here and check out Merck Vioxx by the Numbers for the trial "box scores," cost of litigation and the like that make this settlement a "win" for Vioxx.

According to Merck's press release here, a fund will be created and Plaintiffs injured as a result of taking the drug will be entitled to recompense under the following contingencies:

To qualify, claimants will have to pass three gates:

  • an injury gate requiring objective, medical proof of MI or ischemic stroke (as defined in the agreement),
  • a duration gate based on documented receipt of at least 30 VIOXX pills, and
  • a proximity gate requiring receipt of pills in sufficient number and proximity to the event to support a presumption of ingestion of VIOXX within 14 days before the claimed injury. 

Individual cases will be examined by administrators of the resolution process to determine qualification based on objective, documented facts provided by claimants, including records sufficient for a scientific evaluation of independent risk factors.

Neither stroke claims that are hemorrhagic in nature nor transient ischemic attacks will qualify.

Law firms on the federal and state Plaintiffs' Steering Committees and firms that have tried cases in the coordinated proceedings must recommend enrollment in the program to 100 percent of their clients who allege either MI or ischemic stroke. 

The parties agree to seek court orders from the four coordination judges requiring plaintiffs' attorneys to promptly register all of their VIOXX claims, whether filed or tolled, and to identify the alleged injury - in order to establish the universe of all existing claims in the United States.

Participation conditions: payment obligations under the agreement will be triggered only if, by March 1, 2008 (subject to extension by Merck), the following number of plaintiffs enroll in the settlement process

  • 85 percent or more of all currently pending and tolled MI claims,
  • 85 percent or more of all currently pending and tolled ischemic stroke claims
  • 85 percent or more of all eligible claims involving a death; and
  • 85 percent or more of all eligible claims alleging more than 12 months of use.

My question:  how much of the nearly $5 billion settlement fund does Merck actually project will be paid to Plaintiffs able to jump through all three hoops and what happens to sums remaining in the fund if they are not all expended to compensate Plaintiffs?

Readers?

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