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Gustav - Pets Go with the People

Today THE WALL STREET JOURNAL has a photo of a dog in a container, all ready to evacuate with its two-footed family. This change from Katrina days, when pets were left behind or owners stayed behind to be with them, is partly because of the power of the medium of blogging.

During Katrina, the call went out in the blogosphere to do what we could. And could I would with animal rescues.

One of the most poignant tales during that horror was of the boy who cried so hard he vomited when he realized he couldn't take Snowball on the bus out of New Orleans. Highlighting the Snowball tragedy, we volunteers in cyberspace helped get coverage of the lack of planning for pets during crises. Major media such as WSJ ran ongoing coverage. In Congress, Connecticut's Christopher Shays sponsored a bill restricting FEMA funds only to communities with provisions for pets during crises.

Gustav might be a monster but we humans can get through anything as long as we have our loved ones, including the four-footed ones.

It's six years after the Michael Skakel conviction for the 1975 Greenwich, Connecticut murder of Martha Moxley. There have been a number of rejected appeals to CT Superior/State, federal, and the U.S. Supreme courts for a review or new trial. One was filed by former U.S. Solicitor General Theodore Olson. But there could be new legal developments as the public relations push on behalf of Skakel's innocence heats up.

For example, tonight on ABC, the issue of newly discovered evidence received national attention on "48 Hours Mystery," reinforced on the local CT news. Michael's brother Steven and cousin Robert Kennedy Jr. are leading this campaign.

Among the new evidence is the alleged presence of two Bronx teenagers, one African-American and one Caucasian, in Greenwhich the night of the murder. According to a statement by their then peer Tony Bryant, their goal was to take a girl "caveman style," that is, accosting her in order to have sex. It is claimed they found golf clubs, one of which was a murder weapon, in the Skakel yard.

Steven and Robert are also critical of the defense conducted by Greenwich celebrity attorney Mickey Sherman and the "overzealous" prosecution by Jonathan Benedict. A review or new trial might not be their only objective. Skakel is up for parole in 2013.

"The Legal Limit" is packaged as a thriller. That suspense keeps readers immersed in questions about legal and moral relativism. Published this summer by Virginia circuit court judge Martin Clark, the plot line is straight from Cain and Abel, with lots of other biblical themes such as Joseph and his coat of many colors and the suffering of Job.

In 1984, a smug law student instinctively - read brotherly love - makes the decision to cover up an impulsive - read over a girl - murder by his shiftless brother. The chickens almost come to roost decades later when one brother is a commonwealth attorney and the other is serving a 40-something year sentence for selling drugs.

Reviewer Harriet Klausner opines, "Martin Clark makes a case that the law may be so blind that achieving justice often fails." The case presented in this book, which Clark says represents a composite of actual ones, might be argued in a law school, with experts from the legal academy, sociology, ethics, and psychology commenting.

Here is an excerpt from "The Legal Limit." For marketing purposes, Clark has been described as the thinking and drinking man's John Grisham. That will boost sales. But Clark's future as a fiction writer will be based on his courage to take on complex issues - with Chaucerian irony.

I won't preach to the choir: Attorneys know the power of brilliant stagecraft bunded with an inspired performance. Isn't that how Steve Farese saved Mary Winkler from a murder conviction? So, no hyperbole from me about what could go down in American political history as Obama Thursday. The man took back the hearts and minds of Americans who had been persuaded that Barack Obama couldn't win.

Veering from their usual overwrought emotionality, the Dems tonight took on the buttoned-down presentation skills of the GOP to warm up the crowd for Barack Obama's acceptance speech.

There was reserved Susan Eisenhower, all lady, all political aristocrat as part of the Ike pedigree - but no longer a card-carrying Republican. She had now chosen to be an Independent.

Then military leadership in all their straight-arrow bearing came forth and declared Obama as their commander-in-chief.

The usually too-sunny Joe Biden grew a heart and indicated he and Obama were there for the "millions of Americans who have been knocked down."

The show-stopper was the real-people delegates. They told how they were doing well and then got "knocked down." One gave the Dems their new mantra. He was Barney Smith from the Midwest. He told the 75,000 gathered in the open air in that sports stadium that America needed a president who cared for Barney Smith before Smith Barney.

The man who the experts had written off then did the rest. The Baby Boomer I am experienced his oratory as a return to the eloquence of the Kennedy and Reagan eras.

My hunch is that the GOP strategists are returning to the drawing board. What they created for next week's performance will likely need to be overhauled. As a speechwriter, I wax euphoric that between Hillary Tuesday and Obama Thursday my industry has gotten plenty more respect and a surge in demand.

The plaintiff bar has made a good read on the confusion and fear - ethical, emotional and legal - of these volatile times.

In the court of law and of public opinion, it is arguing increasingly about the "right thing to do." That, of course, relies on natural-law theory [lex naturalis] or the fundamentalist belief that holds that there exists a law whose content and authority are established by nature, therefore valid everywhere. Throughout Rhode Island's lead paint public nuisance litigation and afterwards in taking on the state's Supreme Court decision in the media, Motley Rice spoke in terms of some universal legal and ethical code.

Natural law's power, points out Australian law professor David B. Goldman in "Globalisation and the Western Legal Tradition," comes from its deep roots in legal thought, dating back to ancient times. That has been reinforced both pragmatically and in the history of ideas by religious, literary, and political movements. Think the American Revolution which embodies belief in natural law in the "Declaration of Independence."

What the defense bar seems to be doing to neutralize this power includes arguments based on points of law, changing times, community mores, CSI-type evidence, mitigating circumstances, and cause/effect vs. mere correlation. The success of tort reform efforts has also tilted the legal system towards relativism instead of absolutist dictates.

Because my day job includes writing speeches and coaching speakers, media contacted me about Hillary's speech last night. My take was that she showed that the power of the speech is not dead in this digital age.

Through her speech, she accomplished plenty, including:

1. Like Al Gore, she transformed adversity into a new identity. That speech demonstrated that she had finally found her independent voice.

2. Resurrected a dying campaign. If the Democrats can handle themselves as well as Hillary did, then, hey, we'll give them a shot.

3. Moved the Democrats from the vestiges of JFK, especially the tone, content and gestures of the Kennedy-era rhetoric.

Based on how Hillary used to present herself on her feet and how she did last night, attorneys might find it useful to invest in assessing their rhetorical skills and having the courage to even adopt a new advocacy persona. There's one thing more: Adversity is increasingly proving to give those suffering major career setbacks a fresh competitive edge.

The Business of Law

Law is a business. Yet, THE ECONOMIST pointed out last week, lawyers aren't businesslike enough.

Do you, for example, pay attention to numbers such as profit per partner [PPP] or cost-control strategies? Instead, most lawyers tend to focus narrowly at the assignment at hand, in worker-bee fashion. They miss the big picture of what's going on in the business. The result, especially visible in this downturn, is that the business unawares are often surprised at a layoff - and that they're among the axed. There's more.

This lack of knowledge and/or inattention to business spills over to customer service. In Jones Day Spring 2008 PRACTICE PERSPECTIVES Paul Pohl decried the tendency to approach a case "in isolation" as a legal problem. Instead that situation has to be seen "with an eye to the overall health and strategy of the an ongoing business." We all know how the case is won but the company goes bankrupt.

None of this is new, of course. Those who understood the fundamentals of business and operated their career strategically - often entrepreneurially - were the ones who survived, no matter what. They were also the ones who kept clients so satisfied that those clients brought in other ones. Thanks to all that business development, they made it to equity partner.

What is new is the reduced margin for error, both for law firms and for lawyers. The boom masked weaknesses. Now weekly there is a body count of reductions in force along with reduced PPP. This isn't likely to be temporary. The whole marketplace for legal services is changing. Clients like Pfizer concerned about fees are doing the changing. So is the competition like Valorem and Bates and Tyde with new models. Moreover, given the volatility, it's difficult or impossible to predict what practice areas will be in demand.

The short answer is given by Marshall Goldsmith. His mantra for changing times is: We're all entrepreneurs now. His book "What Got You Here Won't Get You There" has insight on changing, especially when we have the delusion we don't need to.

Suppose Americans could fund litigation without contingency? That's already possible in England.

As Kevin LaCroix reports in THE D & O Diary, thanks to recent English case law, litigation can be treated as an investment asset. A third-party such as hedge or private equity funds can purchase the claim, sell securities in it, and then operate the case for a profit.

In the U.S., explains Sandeep Salva, that's not possible. In his April 25, 2008 article "Securities Class Actions in London," in CLASS ACTION LITIGATION, he notes in America, "claim assignment is prohibited to a purchaser who has not actually suffered an injury" - see "Independent Investor Protective League v. Saunders," (E.D. Pa. 1974).

The advantage is that this lessens the individual risk in England's "Loser Pays" system. Since barristers's fees tend to be higher than U.S. attorneys's, says Joseph Hetrick of Dechert Law Firm, Loser Pays can limit access to the court. The disadvantage, as Salva notes, is that industries, such as the securities market, might perceive this greater access as a severe threat and not do business in England.

In the U.S., given the controversy surrounding contingency in lawsuits filed by government entities using private law firms and by so-called "ambulance chasers," it might be useful to at least explore this approach now legal in England. Pending in the California Supreme Court is contingency in the Santa Clara lead paint public nuisance case. The trial court nixed contingency, the appeals court okayed it. The arguments against range from alleged violations of due process and separation of powers to the difficulty of government's control over the litigation. The arguments for, as in England, focus on access to the court.

Of course, Americans might not welcome the profit incentive incorporated so directly into the legal system.

Working-class values and the CSI Effect should be mutually exclusive in legal persuasion, right? Wrong, I found out in interviewing the Rhode Island lead paint public nuisance jurors. They straddled both spheres just fine.

Those working-class values, which have become chic as we endure two recessions in less than a decade, celebrate compassion, community, resilience, and the work ethic. In "Limbo: Blue-Collar Roots, White-Collar Dreams," journalist Alfred Lubrano presents fresh prespectives on the world most of us baby boomers ran from.

The so-called CSI Effect, derived from popular crime TV shows, creates the expectation for and trust of scientific evidence. The RI lead jurors, primarily blue-collar, used both mindsets to come to a verdict. The hazards the children faced from lead paint were uppermost in their motivation to make the right decision. And they persisted through four months of a trial and eight days of deliberation to do just that, despite sickness and an abnormal lifestyle.

Simultaneously, they took copious notes - the court was one of the few which allowed that - to keep the so-called facts straight. They became deadlocked twice because of the lack of evidence. They got to a verdict only by pasting the judge's instructructions, which didn't require evidence, to the wall and going through them line-by-line. Subsequently the RI Supreme Court overturned the jury's verdict because of this lack of evidence.

My hunch is that these two very different modes of persuasion mesh in court because law is a unique institution. It's both rule-bound and subject to the community mores. Regarding the latter, the blue-collar ethos, just like in the counterculture 1970s, has become fashionable. That could change with an economic boom, which could revamp current legal rhetoric, especially for the plaintiff bar.

Globalized everything, including financial markets, is creating new issues as well as controversies in law - both here in the U.S. and in other western nations.

One of them is what's called "f-cubed litigants." Those are foreign investors who bought shares of stock in U.S. corporations on foreign exchanges. When they discern securities fraud by those companies, reports The D & O Diary in May 2008, they want to file class-action suits in U.S. courts. Although nations ranging from Australia to England are introducing aspects of U.S. collective-style litigation, foreign investors prefer access to American justice. Cynically, that might be thought of globally as "jackpot justice." No surprise, the U.S. companies prefer access is denied.

Recently, U.S. courts, just as in the 1980s factor concentrate lawsuits [e.g. Factor VII and IX], have been avoiding those lawsuits, using both jurisdictional and forum non conveniens arguments. That is, the grounds presented are primarily practical: Overloaded U.S. courts.

Obviously, since financial markets are global, this could discourage foreign purchase of U.S. stocks. But it could keep U.S. corporations happy.

In an exclusive statement to this blog, Joseph Hetrick of Dechert Law Firm weighs in,

"If you're a foreign investor buying securities on a foreign exchange, it's unlikely you can bring suit in the U.S. unless you can show that the stock you bought was purely a U.S. company and that what you allege took place and was done entirely in the U.S. Otherwise it seems that U.S. federal courts will deny jurisdiction.

"This may seem out of date in a global economy but does it really trouble you that an English investor buying stock on the London exchange in a transaction with European connections is forced to proceed in London?"

The answer to Hetrick's rhetorical question will depend on how much foreign investors push to be heard in U.S. courts.

We'll be hearing lots more about this and other legal issues related to global financial markets. A heavy but useful backgrounder is "Globalisation and the Western Legal Tradition: Recurring Patterns of Law and Authority," by Australian law professor David B. Goldman.



Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.