Law

Keats called Autumn the "Season of mists and mellow fruitfulness." Fall brings the best weather of the year to the Delaware Valley. Last week was especially fruitful in delivering news of foes in hot water. Our favorite news show, TMZ, ran a piece about most of the nation's schadenfreude -- the German word for deriving mirth from someone else's misery, which we've alluded to before -- regarding Boston's sports comeuppance. The Patriots blew a lead over the once-lowly Buffalo Bills. That was pretty bad. Then it got much worse for Beantown. Their baseballers blew what looked like an insurmountable lead over a team that plays inside the equivalent of a half-full Home Depot. The Sawks will be watching the playoffs at home, peering bitterly over a Naragansett. Red Sox nation wept, but the rest of us grinned.

Let's face it: schadenfreude is the flipside of envy. Until the Phillies won the World Series two years ago, we used to wonder how different the world looked to a Boston teenager versus a Philly teenager. The former would know only victory, and probably come to think of championships as an entitlement. By contrast, the latter would expect each defeat as a fresh, inevitable insult. We'd console ourselves with the thought that constant winning bred arrogance, while we developed character. Those smug Boston winners reminded us of the the characters in Halberstam's The Best and the Brightest, headed for military disaster in Southeast Asia and canoodling with Hollywood starlets who die under mysterious circumstances. We were better than that; blue-collar and humble, quietly getting the job done by discovering electricity and marrying the Prince of Monaco.

It's different now. The Phillies have become invincible. Fall has become Red October, a season of victory. But we digress.

Back to legal schadenfreude. There were recent developments in the fen-phen scandals. If plaintiff lawyers complain to us and our clients about why we don't rush headlong into settlement, draw up a grid, and start writing checks -- well, the fen-phen experience furnishes part of the answer. Not to put too fine a point on it, but you couldn't toss a brick in that litigation without hitting some charming bit of fraud by a plaintiff lawyer or witness. Maybe most of the lawyers and witnesses were on the up-and-up, but a sort of Gresham's law crept into the litigation, and the bad tainted everything. Everybody was cheated: the judicial system, the defendants, and the plaintiff lawyers' own clients. Last week's news included the disbarment of a plaintiff lawyer. He might have just been a little fish, but he was certainly a caught fish. And we probably haven't heard the last of it.

A client sent us another bit of news about plaintiff lawyers behaving badly. A jury in San Francisco -- ironically, a notoriously pro-plaintiff jurisdiction -- returned a verdict against a bunch of plaintiff lawyers for stiffing their e-discovery vendor. The plaintiff was Cataphora, a technology company that had been hired by the Plaintiff Steering Committee (PSC) lawyers in the Chinese drywall litigation to do document review. Cataphora and the PSC signed a contract. PSC sent an invoice. The plaintiff lawyers refused to pay. At that point, the plaintiff lawyers became defendants. Here's what Cataphora's technology counsel said about the PSC after the jury awarded Cataphora lost profits plus attorney fees:

"These guys are the worst hypocrites that you can possibly find. They claim to
be trying to help the little guy, but what they're doing is trying to put more
money in their own pockets. Everybody knows that, but this is a case that
illustrates it beyond what I have ever seen."

"Everybody knows that." That's priceless.

We're not going to deny it. This news item made us gleeful. Maybe someone will accuse us, as has happened before, of envy. Indeed, it can be maddening to see certain plaintiff lawyers get away with certain things. But the fact is that we actually like and respect most of the plaintiff lawyers we face. (Just like we actually like most Boston sports fans we know.) There are a couple of plaintiff lawyers we count among the people we trust most in the world. But that doesn't change the fact that it's sickening to listen to the usual rhetoric about how the plaintiff lawyers are vindicating the rights of the little guy, while we defense lawyers are money-grabbing swine who'd just as soon blow up the old folks home. It's a phony morality play, and it's utterly gratuitous. News items of plaintiff lawyers putting dollars over their clients' interests shine a light on rampant hypocrisy. And yes, we admit it, it brings a bit of joy into our scurvy hearts.

But not as much as a Phillies championship.

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Posted By Steve McConnell to Drug and Device Law at 10/03/2011 07:00:00 AM

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