Thursday, April 5, 2001
by Jacquelyn Horkan, Editor

HENRY FORD MEETS THE TRIAL BAR

     The cover story of the January 29, 2001, edition of BusinessWeek magazine outlines the emergence of what it calls "assembly-line litigation."

     A number of outlets, including the Association of Trial Lawyers of America (ATLA), the trade association for plaintiff attorneys, sell items called "litigation packets." These resources, usually available on CD-ROM or old-fashioned paper, offer primers on the latest lawsuit crazes, from breast implants to exploding tires to vaccines. Typically, the packets provide sample complaints that can be cut and pasted by the new-to-the-game trial lawyer, along with lists of documents to demand from defendants, copies of government documents uncovered in previous suits, and directories of other useful information. Items included in the latter category cover everything from the names and addresses of plaintiff-friendly expert witnesses to directories of the tort bar’s version of venture capitalists — institutions that lend money to cover the costs of litigation.

     Another resource is the Attorneys Information Exchange Group, described as "secretive" by BusinessWeek, which makes available a "library of auto-industry documents" so extensive that plaintiff lawyers have "surprise[d] opponents with embarrassing memos and engineering studies that the car companies’ own lawyers have never seen." Then there’s a Web site called DepoConnect.com, available only to plaintiff lawyers with passwords, contains a search engine that makes prior courtroom and deposition testimony of expert witnesses instantly available.

     According to the insurance consulting firm Tillinghast-Towers Perrin, the litigation industry reaped estimated total revenues of $165 billion in 1999, factoring in payments to injured people, legal fees, and administrative expenses. That comes to about 2 percent of the nation’s gross domestic product. The Ford-Firestone litigation packet from ATLA, on the other hand, costs all of $145 on CD-ROM.

     A wag once suggested that if enough monkeys were left in a typewriter-filled room long enough, they could replicate Shakespeare. The BusinessWeek story shows that if you give any ambulance chaser in a storefront office enough time and access to someone else’s research, he too has the capacity to become a multi-millionaire.

LAWYER, PROTECT THYSELF

     Georgia lawyers will soon decide whether to open the courtroom to a whole new class of aggrieved plaintiffs: themselves.

     According to an article in the March 26, 2001, edition of The Atlanta Journal-Constitution, members of the Georgia Bar will have an opportunity this month to comment on a new rule that would allow lawyers to file libel and slander actions against their clients who make false complaints against them. Of course, a threat also arises for a client with an authentic complaint who could easily become the subject of an intimidation lawsuit filed by his lawyer. A client could thus find himself in a courtroom defending the truth of his statements. The prospect of the costs of that defense could have a chilling effect on clients who are genuine victims of their legal representatives.

     This move by our neighbors to the north adds to the growing list of arguments in favor of moving regulatory responsibility for the legal profession from state bar associations, which also serve as trade associations for attorneys, to the executive branch where, perhaps, the interests of regular people could also be protected.

HOT AIR RISING

     The April 9, 2001, edition of Time magazine features a special report on global warming rife with hypotheses cleverly disguised as facts. Here’s an example: "Scientists no longer doubt that global warming is happening, and almost nobody questions the fact that humans are at least partly responsible."

     In fact, there exist a number of scientists who question the prevailing dogma that global warming is real and inevitable. One such scientist is Phillip Stott, a professor of biogeography at the University of London, who wrote in the Wall Street Journal of other global warming skeptics who have published articles in major scientific journals (including Nature, Climate Research, and the Bulletin of the American Meteorological Society) during the last three months. Research by these scientists calls into question the link between climatological impacts of gases emitted during the burning of fossil fuels, a link that is at the heart of the global-warming theory and the Kyoto Protocol, an agreement among developed nations to curb production of those gases.

     Time’s hyperbole and scaremongering comes on the heels of the Bush Administration’s decision to withdraw from the Kyoto Protocol and to drop the effort to control emissions of carbon dioxide, a so-called greenhouse gas. But amidst all of the teeth-gnashing and garment-rending, here’s a few facts to keep in mind.

     First, humans generate a mere 4.5 percent of the world’s greenhouse gases; the world itself is responsible for the other 95.5, so convincing Mother Nature to regulate herself may be a better course of action.

     Second, while the United Nation’s alleges that the 20^th century was the warmest in the last 1,000 years, the data are a little suspect since they compare oranges to apples — or in this case tree rings and thermometers. What’s more, most of the warming in that hottest of centuries occurred prior to 1940, when most of the world, including America, was predominantly rural and producing little in the way of greenhouse gases.

     Third, those temperature increases have come on the earth’s surface, not in the lower layer of the atmosphere, which is where the warming is supposed to occur under the global-warming theory.

     The Kyoto Protocol — designed to solve a problem that doesn’t appear to exist — would have imposed enormous cost with little benefit. According to the U.S. Department of Energy, implementation of Kyoto would have boosted electricity prices by 86.4 percent, and would have caused a $397-billion drop in the nation’s gross national product in 2010.

DRIVE BABY, DRIVE

     Two Rutgers University economists just put a clear coat on the reputation of public enemy number one of environmentalists and the safe-car crowd.

     According to the research of Douglas Coate and James VanderHoff, sports utility vehicles, far from wreaking devastation on the roadways, actually improve highway safety. They found that SUV and light-truck registrations increased by five percent from 1994 to 1997, while single-vehicle fatalities per driver dropped by 7.5 percent and multiple-vehicle fatalities fell by two percent.

     SUVs are safer primarily because they are exempt from federal regulations designed to reduce gasoline consumption by automobiles. This means that they have stiffer chassis and greater weight, advantages lost to other passenger cars in the pursuit of greater fuel economy. The National Academy of Sciences is studying those regulations to determine whether passenger safety has been compromised by the effort to save fuel by diminishing vehicle weight. The panel’s scientists may recommend changes to the regulations.