Redstate

This bill is really, really bad.  There's good and bad in Sections 1-6, but Sections 7 and 8 are outright stupid.  Section 7 is hopelessly ambiguous (what's the same issue?  what's litigated?).  Section 8 may actually raise the costs of lawsuit defense for most companies, and demonstrates no understanding of modern litigation practice.

I'm a big firm lawyer who usually litigates on behalf of large companies.  This bill is a mistake.

As my past comments indicate, I'm with Pat Cleary and NAM 95% of the time.  The foregoing comment is not meant as a criticism of either, who do great work.  IMHO, this bill is a huge mistake that's likely to do much more harm than good.

from the last diary on this bill, since it kind of came in after the useful life of the diary had expired.

Von is correct although, interestingly, the parts of HR 420 that struck me as blitheringly insane were different from the ones that upset him (or is it her?).  Personally, I have about 10 years of experience in commercial and class action litigation, on both the plaintiffs' and defendants' side, in federal and state court alike.

Everyone would benefit from more consistent and firm applications of Rule 11.  Defendants are certainly harmed by frivolous lawsuits, but plaintiffs are likewise harmed by frivolous big-firm obstructionist tactics in meritorious lawsuits.

That said, it's all well and good for Congress to try and make sanctions mandatory, but it's unlikely to have any real-world impact because the real problem is the judges.  It's not a liberal-conservative divide - most judges are simply disinclined to grant sanctions, period.  And since it's basically a matter of discretion as to whether a party has acted frivolously, it means nothing for Congress to tell judges that if, in the exercise of their discretion, they determine that a pleading was frivolous, they MUST award sanctions.  Judges who don't want to award sanctions will simply say that they don't find the pleading to be frivolous.  And to the extent that a stricter standard creates a greater opportunity for appellate review of sanctions issues, I really don't think it's in anyone's interests to create a multiplicity of appellate litigation devoted exclusively to sanctions issues.  That would just compound the problem.

How do we get judges to take the idea of sanctions more seriously?  Good question.  It seems like most judges are just happy to get a case off their docket, and the last thing they want to do is conduct some searching inquiry into whether a party had a good-faith basis in the first place.  But for the sake of the court system, that's exactly what they should be doing.  There's a bit of an "old boys' club" mentality in which judges, and the practicioners who appear before them regularly, don't like to accuse one another of bad faith.

I confess that the document destruction issue didn't raise my hackles quite as much as von's.  The bill speaks to "the intentional destruction of documents sought in, and highly relevant to" a pending court proceeding.  While the wording could possibly be a little more artful, "intentional" conduct seems to preclude the possibility that routine, unwitting enforcement of a document retention policy would trigger the rule.  Perhaps this element of intent needs to be made a bit clearer, since yeah, technically if a techie presses the button that deletes last year's email archive, he is "intentionally" destroying those documents even though he may not even know there's a pending lawsuit.

However, I think the idea behind the rule makes sense, and it addresses the scenario of documents being destroyed in haste before an order to preserve them can be entered, as well as the scenario where a third party rushes to destroy relevant documents before a subpoena is issued.  The rule wouldn't address the destruction of documents before litigation is actually filed, though.

What really struck me about this bill was the attempts to infringe on the jurisdiction and sovereignty of state court systems.  Section 3 of the bill, for example, requires state courts to make a finding as to whether an action affects interstate commerce, and if it does, then the provisions of Rule 11 apply.  Well, if Congress wants to make those actions removable to federal court, it can do that.  But if they remain in state court, it seems absurd to me for Congress to start dictating to independent state court systems what findings they have to make, and what relief they have to grant.

Likewise, Section 4 deals with venue for personal injury claims.  That's an issue of state law, and it's not Congress' place to tell the state courts of Michigan whether a given case should be heard in Wayne County Circuit Court or in Oakland County Circuit Court.  Again, if Congress wants to exercise federal jurisdiction over the conduct state lawsuits, it should make those lawsuits removable.

One final issue is the "three strikes" provision that says any lawyer who violates Rule 11 three times in their career shall be suspended for at least a year from the federal district court in question.  I don't have a problem with this, although Rule 11 is so arbitrary right now, you really can't predict who is or isn't going to be hit with sanctions.  But if you've been sanctioned on three separate occasions (maybe there should be a rule that multiple judges have to be involved, just in case there's one judge who can't stand you), it's hard to imagine there's no frivolous conduct going on.

Someone above mentioned the issue of pro se prisoner lawsuits.  I have some experience in this area, having formerly worked for a state parole board.  In fact, I am currently defending a prisoner lawsuit in which I had the pleasure of a phone call from none other than potential witness Justice Clarence Thomas.  (The prisoner claimed that Justice Thomas would have been an alibi witness, but his attorney unjustifiably refused to call him.)  There are some "jailhouse lawyers" who abuse the process to ridiculous ends, and we need to balance the importance of access to the courts against the burden and expense that these lawsuits create.

However, in my experience, this is one area where the courts are already being pretty proactive in terms of cutting off frivolous cases.  It's not at all uncommon for a repeat litigant to wind up as the subject of an order requiring that he obtain prior court permission before filing any more lawsuits in a given venue.  Monetary sanctions are possible, although garnishing someone's $0.50/hour salary is just kind of silly.  What works better is that repeat offenders can lose their privilege of proceeding pro se, which tends to make them think about their claims in a more serious way.

it resulted in more harm than good.  As a result, Rule 11 was ultimately amended back to allow discretion with the court.  This bill seems like deja vu to me.

I wish I could describe my problems with this bill in more detail, but alas, I need to get back to billing hours...

I kept reading and re-reading the part about making sanctions for Rule 11 violations mandatory and thinking...doesn't the judge have discretion to determine what is a violation and what isn't?  

It's like telling judges they must fine anyone convicted of speeding while leaving it up to the judge to determine what "speeding" means.

You're also correct in noting that "frivolous lawsuits" are only a small part of Rule 11.  The rule applies to all attorney misconduct -- for both sides!

My initial reaction to the bill (above) was a bit selfish:  i.e., my initial thought was, "how will this bill affect me and my clients."  Since I don't litigate personal injury cases, and rarely litigate in state court, I didn't focus on those parts of the bill.  Steve, however, makes excellent points regarding the parts of the bill that I neglected, and has really made me wish I spent a few more minutes looking at the bill before I spouted off with my complaints regarding Sections 7 & 8.   Steve's right that the remainder of the bill is just as bad -- and probably worse.  Indeed, it's not a stretch to say that this bill is yet another full-frontal assault on federalism.

Yet, one further note regarding the document destruction provisons in this bill, which might explain where I'm coming from:  In a highly contentious case between well-financed opponents -- each with lots and lots of documents -- it is very easy for particular documents to be inadvertently destroyed.  Indeed, even with a very conscientious GC and a litigation hold in place, it is possible for potentially relevant documents to be destroyed while litigation is ongoing.    

Now, I have not experienced the foregoing directly, although that's likely more a result of luck than skill given the number of documents and witnesses potentially in play.  But I do understand the dynamic as soon as a document's destruction is learned:  All of a sudden, the destroyed document becomes the key document in the case.  Moreover, what looks inadvertant to you will almost certainly look intentional to me, your opponent.  Given the mandatory sanction provisions of the proposed Rule 11 modification, the temptation to file a Rule 11 motion every time I learn of the possible destruction of a document will be very high.  The result will be more motion practice, more cost to clients, more clogged courts, and, ultimately, more paid in attorneys' fees.

Again:  This is a really, really bad bill that will cause a lot more problems than it will solve (if it solves any problems).  Its attempt to intrude on the States is also contrary to much of the Republican agenda, which rightly preaches a preference for local control.  Please, urge your representative to reject this bill.

I wonder how the provisions regarding document destruction got into the bill in the first place.  Normally, you'd think it would be the plaintiffs' bar who would be concerned about such things; I don't think they get to draft many bills these days.

Legitimate cases of intentional document destruction should be dealt with harshly, of course, but I think everyone agrees with that already.  I would have thought the Arthur Andersen debacle would have taught some lessons regarding, shall we say, the criminalization of document retention policies.

On a separate point, I would go even farther than von's characterization of the bill as an "assault on federalism."  For most of us, federalism is kind of an abstract concept where we debate whether certain issues are better handled at the federal or state level.  The securities markets are regulated federally, schools are regulated locally (with a few exceptions), and so forth.  But in this bill, Congress goes beyond making substantive law and actually presumes to tell the state court systems how to handle their caseload.  Off the top of my head, I can't think of a single example in existing law where Congress has mandated certain procedures in state court systems.  We might as well do away with state courts altogether if Congress is going to be able to establish their rules of procedure.

To look at it another way: Congress was concerned that class actions are being handled poorly in state courts, so what did they do?  Earlier this year, they passed a law allowing certain class actions to be removed to federal court, where they hope the law will be applied more consistently.  That's the appropriate way to handle a perceived problem.  What is NOT appropriate would be for Congress to let the class actions stay in state court, but to tell the state courts how to rule on them.  Yet that is what this bill tries to do, in several regards.  It really needs to go back to the drawing board.

I have hours to bill too, but this whole thing would laughable if it wasn't so disturbing.




Why can't knee-jerk activists find something better to do with their time than messing with the justice system?  




One of the first things learned by law students in Civil Procedure is the history of Rule 11 (any guesses why? yep, because it's near the front).  I don't remember all the details, but I know it was so bad that Scalia had to get involved.

Ending a right to seek redress in civil court, a right all freeborn Englishmen have had since, what, before Magna Carta?   When is this kind of Wall Street radicalism going to stop parading around under the banner of Conservatism?  

The ineveitable alternative to civil law is criminal statutes, and the biggerr government which will be needed to enforce them.  Civil lawsuits are an alternative to big government. Big government Republicans.  Here to help you.

Pursuant to the mission statement, this site is explicitly meant to serve as a conservative and Republican community.

Can anyone point out how an industry group like NAM should be leading front page articles with their propaganda?  Sure, like most business groups, they are more aligned with Republicans most of the time, but this is just sickening.  They are looking for a knee-jerk response from people who will say "ooh, lawsuit abuse bad" and send a note to their congressman for whatever poorly thought out bill comes down the pike.

You know if you give a lot of money and can throw out catchy slogans apparently alot of people will follow your nonsense.

This bill will also discourage "forum shopping" -- the practice of filing a lawsuit in the most plaintiff-friendly court -- by requiring lawsuits to have a relationship with the jurisdiction in which they're filed. Can you believe we need to legislate this?

No, I can't, and umm... you don't, because the lawsuit already has to have a relationship.  You obviously have no legal education, or have been paid to ignore it because you are conveniently forgetting to mention venue and jurisdiction requirements.  

Apparently, Pat clearly would rather have government legislation rather than redress through the courts for wrongs.  Oh wait, he probably doesn't want that either. He'd rather have neither the government nor plaintiff's counsel be available, and whoever has the biggest budget wins: little guy be d*m*ed.

You obviously have no legal education, or have been paid to ignore it because you are conveniently forgetting to mention venue and jurisdiction requirements.

Generally, this is correct. But asbestos and a lot of class actions are the exceptions that pretty much prove the rule. A lot of the tort reform of late has been (poorly) aimed at asbestos reform.

Civil lawsuits are an alternative to big government.

Really? And do you imagine the judiciary is a non-governmental agency? Who enforces the judgments once entered? Who determines what rights of action exist at law in the modern age? Who determines what the nature of the remedies for the violations of those rights might be?

He'd rather have neither the government nor plaintiff's counsel be available, and whoever has the biggest budget wins: little guy be d*m*ed.

Get back on the meds, big fella. Quite a reach from saying, "I advocate tort reform," to "I would end the redress of wrongs in any government forum."

I'm hyperventilating, but the whole thing really does incense me.

Most of the reforms going through haven't bothered me, but I'm not sure what grates me more - the "back to what didn't work before" Rule 11 and related muddling, or the condescending, red-meat propaganda put out by large corpoarate groups trying to convince people their agenda is "conservative."

In the sense that conservatives don't advocate running to the government, no matter in what form, for redress of every little wrong.

You're right about the Rule 11 revisions. Pat's wrong.

Sorry about the meds crack.

Legitimate cases of intentional document destruction should be dealt with harshly, of course, but I think everyone agrees with that already.  I would have thought the Arthur Andersen debacle would have taught some lessons regarding, shall we say, the criminalization of document retention policies.

Moreover, it's not like there's no way to deal with legitimate cases of document destruction:  FRCP 37 already allows a Judge to impose sanctions for such destruction, including, in extraordinary cases, dismissing the case or an giving an adverse instruction to the jury (e.g., you are legally required to presume that the destroyed documents contain or reflect harmful fact X).

Apparently you left Texas before the anti-trial lawyer nazis took over...


Granted, it was the trial lawyers own darn fault for how they lined up, but that doesn't make it right.




And of course they aren't saying what you quoted, that'd be too obvious and wouldn't make good copy.  They are an advocacy organization after all.

I was just feeling a little bored the other day b/c I hadn't engaged with Thomas lately...

No problem.

I don't agree with all of it -- I'd set certain inflation indices for awards that aren't now set, for example -- but Beaumont and Brazoria County were and are problems that need to be addressed posthaste.

Not trying to be snide, but what am I missing?

I just wish Gengis would post more. I used to enjoy playing with both sides of the spectrum with both of you in turn.

I like multinationals.  In general, corporations grow into multinationals because they are very good at what they do.  I'm in favor of good things (companies, products, services) growing.

That does not mean that I think that this bill is a good idea, of course.  As my other comments suggest, I think that this bill is among the more idiotic things that I've seen today.  

In the sense that conservatives don't advocate running to the government, no matter in what form, for redress of every little wrong.

Yes, they do!  As the author of that fine RedState post stated:

This is an opportunity to draw the line between being corporatist and being conservative.

It's hard to get much more corporate than a freaking trade group who we shill for for some unknown reason. I hope NAM donates a lot of money to RedState.

Third party insurance work. A friend of mine in Atlanta sends me stories every day. Not pretty.

I like thim in principle, and most of the time even in practice.

This is an opportunity to draw the line between being corporatist and being conservative.

First, Adam C is not precisely a conservative. Second, he was discussing the context of an eminent domain taking. Third, the eminent domain taking by definition invokes the power of the government; arguing about whether "running to the government to redress every wrong" is conservative or not is more than a little artificial in the context of a battle with the government over a taking.

(Anyone, one lawyer's "mistake" is another's "different point of view.")

It's hard to get much more corporate than a freaking trade group who we shill for for some unknown reason. I hope NAM donates a lot of money to RedState.

Though not certain, I don't think they donate a penny.

I'm in favor of broad tort reform; a former plaintiff's lawyer; and I post on RedState. Am I shilling?

Third party insurance work. A friend of mine in Atlanta sends me stories every day. Not pretty.

Some class action defense work (five years ago) and some patent litigation related to certain insurance products, but no third party work.  

It's a small part of my practice, but it's a freaking comedy of errors all around. Doesn't leave you with a good view of the human condition.

I'm not a lawyer, yet.  Bar results next week.

I'll agree on Adam C without hesitation.

Yes, I conveniently ignored that you said "every little", but someone's mangled limbs or dead child who is hurt by a corporate actor isn't "little" to them, now is it?

As far as you shilling, I'd like to be a defense or plaintiff's (in the pure sense) lawyer, but alas, I'm not.

It'd be one thing if he was a CEO of a manufacturer or some other kind of businessman, but to any casual observer he is either a paid or volunteer member of a corporate advocacy group.  The difference is the difference between being a member of the NRA and speaking for gun rights, as opposed to standing up and saying "I'm from the NRA and...".  

The NRA was a bad example because they are an issue group, not a collaboration of companies pursuing a common interest, I should have just stuck with NAM. darnit.

that the narrowly-targeted reforms have easily been the most effective.

The gun bill, for example, was a nicely-tailored solution to a national problem.  Congress really could have mucked it up, however, if they had tried to make it some blanket statute regarding manufacturer liability for all sorts of products.  Guns are the issue; guns present unique fact patterns; so make a law relative to guns.

Asbestos is another issue that could be dealt with much more effectively on its own.  Set up a fund, craft a legislative solution, do anything other than enacting broad civil procedure reforms in hopes of impacting asbestos litigation somehow.

The other lesson is that Pat could probably stand to elevate the tone of his posts a bit - I'm pretty sure the RS community is intelligent enough to handle it.  Sloganeering and blanket statements about how lawsuits are out of control aren't going to make the case.  Then again, on a bill this ill-conceived, there might not have been much else to say in favor.

(1) Good luck. Be sure to only make a drunken fool out of yourself on the night the bar results come in.

(2) Of course not. And I wouldn't support eliminating their right to seek redress. I would put a damages floor on some actions, like medical malpractice, to close the floodgates a wee, but lost limbs and dead children usually come in over $5,000, $10,000, or $15,000.

(3) Defense work for insurance companies is a fool's errand. They hate paying, and see us as a cost control center. (Yes, this makes me a fool.) My experience in Plaintiff's work suggests it's a dog's life. Be a corporate attack dog. Good money, better hours. Or better yet, be a corporate lawyer. I understand those guys have sweet hours, good money.

(4) While there is a difference between corporatism and conservatism, and corporatism and conservatism, I for one don't mind Pat blogging here. When he's right, he's right. When he's wrong, like with this, he's wrong.

You were much more articulate than I was.

(1) thanks. I'm nervous.

(2) Floors are great, best thing I've heard in a while. Arbitrarily low ceilings are another matter.

(3) I watched the poor insurance defense guys while clerking. Didn't look good except for the chance to do some trials. I'm doing IP, I'm not sure where it falls, but it's hard and keeps me out of trouble.

(4) I don't mind him blogging here at all, but this was a front page propaganda post about his own organization that wasn't even well put together.  It was just a bunch of buzzwords tripping over themselves. I'm guessing he truly doesn't even know what the bill does.  We might as well just put NAM press releases on the front page without the need for a point man.


Generally, he posts on wide range of topics and does a good job.

Texas is a trickier bar, but I suspect you'll do fine. Good luck, again.

Or are you taking it in the future?

I'm thinking about sitting for the patent bar, but no way am I gonna go to law school.

I did not take the patent bar.  I might at some point, but it's not a priority at all.  I'm a hardcore litigator - ok, well, I work at a firm full of them at least. I enjoy kicking a major corporations butt more than the niceties of writing a good patent (for the record, I'm normally representing a major corp at the same time, I just enjoy the combat).

I do however, see the intellectual enjoyment that could come from it, but it's just not how I'm wired.  I'd be bored and mess things up.

Feel free to contact me offline if you'd like to talk about it some more.

intellectual property when you said IP right?

You're just involved with litigation?

I agree that would be more exciting, I'm not thinking about taking the patent bar for the adventure and excitement it would provide, just trying to keep my options open as a potential escape route from the lab.  I've considered an MBA too but I really have no interest in 2 more years of school.  My wife often reminds me if I gave up surfin the internet and "boggling" I could easily prepare for the patent bar.

Thanks.

regulating society.  Don't you have any Fortune 500 board experience.   Corporations can avoid lawsuits, and most do, by avoiding bad behavior.  Killing off lawsuits only rewards the criminal corporations.  And you should stop pretending to be a conservative if you support this bilge.

You're out of your depth, Mr. Bupkis.

You have to pass the patent bar if you want to prosecute patents and/or handle patent interferences and the like, but it's not necessary to litigate patent cases in federal Court.  Indeed, some of the best IP/Patent litigators that I've seen do not have a technical background and have never taken the patent bar.  (And some of the best I've seen who have taken the patent bar have never prosecuted a patent, and couldn't tell the MPEP from a tepee.)

Of course, being a non-patent-bar-taking guy with a practice that's about 75-85% patent litigation, I'm biased.

Not to worry, Von -- we understand respectful disagreement....

... is the free market. Our views jibe most of the time (as you can see from prior posts) with the majority of RedState readers. We're allies. How 'bout you....?

But it seems as if the concept of "minimum contacts" (Pennoyer v. Neff and  its progeny) have been turned on tis ear, no?

...Was trying to cut to the chase. Look for higher-minded stuff to come... :)