The recent New Yorker article on Dickie Scruggs has been a popular subject in the blogesphere. Personally I’m suffering from Scruggs fatigue and will disclose I personally think that drama is largely over. P. L. Blake could change all that and more of course, but it is hard to see the incentive for the elderly Blake to cooperate with federal investigators at this point.
My experience has been that the best discussions I’ve seen or participated in on the topic of Dickie Scruggs and/or coastal insurance issues have been with people who work in the insurance industry that are not practicing lawyers. That is not a slap at the bar as much an admission on my part of the type people my life experiences cause me to better identify. I guess that is why some of my favorite commenters here on slabbed hail from the industry even though we don’t exactly see eye to eye on many of these issues.
This brings me to Sam Friedman, Editor In-Chief of the National Underwriter, a property and casualty trade publication with whom I’ve had the pleasure of chatting on occasion. Sam’s blog graces our selective blogroll because of his even handed treatments of these important issues. We don’t agree on the need for the HR3121 multi-peril insurance concept or whether the Bloomberg Article The Insurance Hoax was a complete hatchet job. 😉 However, Sam does recognize the insurance problems we opine about so much here on slabbed. Reasonable people can disagree and yet still work together to find good solutions to mutually identified problems. Sam is such a person.
This brings me to his last blog entry What Is The Alternative To Scruggs-Style Justice? which is excellent IMHO. It lacks the virtrolic venom commonly found in the typical Scruggs blog post yet it cuts to the heart of some of the larger issues raised by the judicial bribery scandal and their intersection with ordinary people seeking justice. It is well worth the read and though I’m excerpting much of Sam’s post here I highly encourage our readers to visit and read Sam’s blog.
There was a fabulous article in the May 19 edition of “The New Yorker,” headlined: “The Bribe: How the Mississippi Lawyer Who Brought Down Big Tobacco Overstepped.” Yes, it’s the incredible tale of Dickie Scruggs, who pled guilty a few months ago for trying to bribe a judge in a lawsuit over the division of contingency fees in a Hurricane Katrina suit. It was a disgraceful end to an audacious and amazingly successful legal career, in which Scruggs brought down corporate titans in asbestos, tobacco and insurance. The problem is that while the greedy, arrogant Scruggs went too far, what is the alternative for those with valid claims seeking top legal talent to make their case?
For your reading pleasure, I’ll serve up some of the highlights, and my views on the subject. I invite you to share your take as well.
The author, Peter J. Boyer, notes that “although Scruggs is Mississippi’s most famous trial lawyer, he never really was a ‘trial’ lawyer at all.” In fact, Boyer quotes Bill Reed, identified as an attorney and one of the subject’s closest friends, as stating that Scruggs “hasn’t tried 10 cases to verdict in his life.”
Instead, he is identified as “the master of the deal,” using the threat of a devastating class-action judgment and years of negative publicity to force settlements.
While all is fair in love, war and litigation (as well as politics, for that matter), one problem is that the deck was often stacked when Scruggs went to trial, the article makes clear. Operating in a state with an elected judiciary, Boyer reported, “as settlement money rolled in, the plaintiffs bar began investing it in the campaigns of plaintiff-friendly judges. Lawyers would then shop for friendly jurisdictions.”
Creating what the American Tort Reform Association decried as “judicial hell holes,” but which were hailed by Scruggs as “magic jurisdictions,” these kangaroo courts offered about the same odds for defendants as the Christians faced when the Romans forced them into the arena versus the lions. Indeed, about the only chance they had to survive was to run for their lives–offering massive settlements rather than face near certain death in court.
Scruggs made no effort to sugar coat this harsh reality. In the story, he is quoted as having stated the following at a 2002 panel discussion:
“The trial lawyers have established relationships with the judges that are elected. They’re state court judges; they’re populists,” he said. “They’ve got large populations of voters who are in on the deal; they’re getting their piece in many cases.”
He goes on to describe such biased judges as “a political force in their jurisdiction,” adding that “it’s almost impossible to get a fair trial if you’re a defendant in some of these places.”
He conceded that “these cases are not won in the courtroom. They’re won on the back roads long before the case goes to trial. Any lawyer fresh out of law school can walk in there and win the case, so it doesn’t matter what the evidence or the law is.”
Isn’t that an amazing statement?!? At least federal class-action reform cleaned up part of that problem.
Sam then throws in a balancing twist that I really appreciated:
There’s plenty in the piece about insurers and Hurricane Katrina litigation–material with which you folks are painfully familiar.
No matter how you spin it, there is no denying that Scruggs and his ilk perverted the legal system to extort huge figures from companies and entire industries. However, I can’t help but wonder what judicial system can adequately take the place of this corrupt and shameful process.
Complicating the issue is that the “victims” here were not exactly innocent. Tobacco companies for years buried evidence of health risks to smokers, then brazenly lied about it. Asbestos makers did a tremendous amount of damage to thousands of people.
As for insurers, while they certainly are not in the same league as tobacco or asbestos, not all have been entirely fair in their investigation and disposition of Katrina claims, and their policies are anything but clear on wind-versus-water damage.
Given these circumstances, the question is how might an average Joe or Jane get adequate legal representation to take on huge corporations when they have a legitimate claim?
While it’s wrong for courts to be rigged against defendants, it’s also not fair for individuals to face teams of corporate lawyers determined to stall and appeal even legitimate claims into oblivion.
Nowdy and I originally started blogging precisely because this very important part of the discussion was discarded in the rush to hang Dickie Scruggs. I can’t emphasize enough that folks like the McIntosh family are human beings who lost their house to Katrina. They deserved far better out of the legal system than their treatment to date. They also deserved better out of the blogesphere as well than to be treated as a simple story prop by insurance shills and Scruggs haters.