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Wherein Max Kennerly attacks a strawman


Yesterday on Twitter, trial lawyer Max Kennerly accused me of promoting non-substantive policies in a throwaway tweet. I challenged him to name one. Rather than admit that he was wrong, he made up one: he falsely claims that I think "injury plaintiffs should always lose." This is clearly false, and I told him so.

He asked me to name five injury plaintiffs I thought should win; because of Twitter's 140-character-limit, I understood his "injury" to mean "injury" when he apparently had a secret meaning as "personal injury," when I listed five injured plaintiffs. So he's now claiming that because "injury" means something other than "injury," my examples didn't actually involve injuries and is making hay over the misunderstanding of his imprecision instead of being intellectually honest—including misrepresenting the result of Dewey v. Volkswagen, where class action attorneys tried to screw over a million class members who will now be able to collect for their injuries.

I've long complained about the game-show aspects of modern trial practice. Rather than a search for truth, trials have become a series of attempts by both sides to play "gotcha": can the lawyer trick the witness into saying something damaging that isn't true? Can the lawyer take an innocuous document out of context and fool a jury into thinking it is a smoking gun? Here, I apparently was supposed to respond "What do you mean when you say 'injury'?" instead of treating Kennerly as an intellectually honest person engaging in a conversation using the English language, and now he's playing "gotcha" because he had a secret definition of "injury" that I didn't deduce when he asked the question, and pretending that I couldn't answer the question he never actually asked.

It sort of shows the intellectual bankruptcy of reform opponents that Kennerly can't identify a single policy position where I'm wrong and feels the need to invent and attack a position that I've never taken and, indeed, no reformer has ever taken. Of course there are scenarios where personal-injury plaintiffs should win; I've even defended the position of plaintiffs in some hot-coffee lawsuits, for crying out loud. I've loudly condemned the medical malpractice at Desert Shadow Endoscopy (where trial lawyers ignored the malpractice and instead went after innocent deep pockets with the help of questionable judicial rulings). A friend of mine was recently the smaller mass in a pedestrian versus automobile accident, and should recover reasonable damages for her injuries against the negligent driver; when have I ever implied otherwise?

Kennerly owes me an apology, but he owed me a retraction the first time for his attack, and instead doubled down with additional dishonesty, and has now tripled down by expanding a forgivable tweet into a thoroughly offensive blog post (which he knows is false), so I don't expect it. But as I've discovered in the last three years of fighting trial lawyers ripping off "injury plaintiffs" (and winning millions of dollars for such "injury plaintiffs," often with the trial lawyers kicking and screaming against these recoveries), no matter how low my opinion of trial lawyers, I somehow manage to regularly underestimate how low they will go to promote their profits over people.


You've got nothing but space here. Go ahead, give an example where a personal injury plaintiff in a negligence case rightfully won a jury verdict in excess of $1 million. I gave you an example in my post today.

It's one thing to argue that personal injury lawsuits should be banned except where criminal or reckless conduct is involved. It's another thing to argue that same point day in and day out while claiming that you're really just standing up for the little guy, and having the nerve to use language like "profits over people" to insult trial lawyers.

Trial lawyers stand up for injured people against insurance companies and the wealthiest corporations in the world; you're in there, too, but you're on the other side, standing up for corporate profit.

As I predicted, Kennerly, rather than apologize for his first set of lies, just tells new lies. No one is arguing or has ever argued "that personal injury lawsuits should be banned." Kennerly's utter refusal to address my actual arguments (and his misrepresentation of my record, which has been spent the last three years winning millions for plaintiffs who had been ripped off by their trial lawyers) is telling. Of course, if Kennerly told the truth, he'd have no chance of winning the argument.

My experience has been that trial lawyers stand up for themselves, and run roughshod over anyone in the way of that goal, whether that is an innocent or guilty defendant, or their own clients. The NVIDIA case—where I fought for plaintiffs against a corporate defendant, but was thwarted by a Milberg firm that was more concerned about its $13 million fee than its own clients—is a good example. http://www.pointoflaw.com/archives/2011/03/nvidia-class-ac.php Any results achieved for deserving plaintiffs seems to be purely by happenstance.

As for a million-dollar jury verdict on negligence I support, it took me a few seconds to find one on Google News: http://www.nydailynews.com/new-york/jury-orders-mta-pay-parents-1-9-million-son-seth-kahn-fatally-hit-2009-bus-accident-article-1.1129633. Indeed, I'd expand the right of the plaintiff to sue by holding the union liable in this case. And anyone honest who's been reading me for years knows that I support the right of legitimately injured plaintiffs to sue for reasonable damages against culpable defendants.

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Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.