The recent FDA announcement of the tomato salmonella outbreak leads me to wonder about how we got here. Announcements like this give the media great material to play with the fear process. I call it the “don’t eat that,” or scare-of-the-moment journalism. The danger is real, of course, as salmonella can pose a serious health hazard for children, elderly, and people with compromised immune systems.

The real problem is a lax food safety system. This is not something that’s simply limited to tomatoes.  The reality is that deregulation–the heralded salvation and light of the American economy–has a very nasty underside.

Food safety is one of those classic government functions. If we want a safe food system, we have to pay for it and know that sometimes regulations are a pain in the neck. Oh, and it costs money, as in higher taxes.  Of course, that pain in the neck is part of how we protect our toddlers and aging parents who can be felled by a manufacturer’s failure to maintain food safety standards.

The alternatives give us two things. One is this scare-of-the-moment journalism. Annoying. But here’s the bigger one. The other consequence of deregulation is that people like me–trial lawyers–have more and more work.  My job starts when injured people call about calamities that have befallen them.  I am like “All the Kings’ horses and all the Kings men” as I go about trying to re-assemble lives and families broken by unsafe practices.

Our food supply system needs to be regulated properly, and we need to dedicate the resources to it so that regular inspections and enforcement processes prevent these outbreaks.

David Sugerman

It sounds like a set up in search of a punch line: What’s the difference between an Oregon lawyer and a Texas lawyer? If you’re an Oregon consumer, you can have a laugh, and if you live in Texas, well, shed another tear.

Oregon requires that each Oregon lawyer carry liability insurance, as a way to protect consumers in case the Oregon lawyer mishandles the client’s matter.  The Professional Liability Fund provides the first level of insurance to all Oregon lawyers. And that’s part of the secret to its success. There’s a lot of purchasing power when you have a large group buying insurance. As a result, the annual premiums are affordable.

Texas takes a different approach. A commission set up by the Texas Supreme Court recently rejected a rule that would require all Texas lawyers to inform clients about whether they have liability insurance.  The proposed rule was fairly straightforward. It simply required all Texas lawyers to disclose whether they had malpractice insurance. The commission rejected the rule. I guess it’s there own special version of, “Don’t ask; don’t tell.”

According to the news report, the commission rejected the rule because…gasp!…it could lead to mandatory insurance.  Oregon lawyers and consumers have got to be ridiculing Texas over this one. Lord knows that mandatory liability insurance could lead to actual protection of the public interest.

This one is a no brainer.  As an ex-Texan, I can say with the certainty of one who was born and raised there, no one ever accused the mighty Lonestar State of being long on brains. (And of course, I feel compelled to explain that it was a long time ago, I had no say in the matter, and…and…and….)

Having insurance is actually one of those comforts for both me and my clients. I’ve handled multiple lawyer malpractice cases over the years, and I’ve learned that lawyers sometimes make mistakes that can do great damage to our clients.

So why would anyone go without?  The Texas commission really missed the boat on this one.  Mandatory insurance has protects the public in Oregon.  And even if Texas won’t insist on insurance, the Texas commission chose to sow more seeds of distrust by blowing past the chance to provide Texas consumers with a small bit of protection. Bad call.

David Sugerman

Interesting write up today in The Oregonian about the civil trial in a case brought by former investors against formerly high flying financier, party activist, Republican gubernatorial candidate, Craig Berkman. This is another one of those cases where I just want to grab a big tub of popcorn, plop down in an easy chair and enjoy the show.

At the front end, Mr. Berkman apparently admits that he secretly took $3.8 million in investors’ money. Apparently, his lawyer plans to claim that the investors losses of $20 million came from market conditions, not the secret taking of cash.

I’m taken with several parts to this.  Most notably is the repeat of the realization from the Adidas verdict that no one rants about businesses suing businesses for large sums of money.  Same is true about investors, I guess. And I don’t really have a beef with that, but I have to wonder why a double standard applies when a profoundly injured person dares to sue for damages.

The Big O article closes with a specific description of Jordan Schnitzer’s experience. All of Portland knows the Schnitzer family–they are successful, high profile civic leaders who have given large sums of money to many Portland institutions. I assume that Mr. Schnitzer’s net worth is such that his million dollar loss has relatively little impact on his overall wealth. I don’t mean to sound petty–it’s more that you need a sense of perspective about these things. But of course, it’s an interesting part of the story.  And regardless of his wealth and status, Mr. Schnitzer has every right to press his proper claims forward.

The other interesting piece is that Bullivant Houser’s Steve English leads the team representing the investors. He’s an accomplished trial lawyer from a law firm that focuses mostly on business and defense of claims.  It’s a large law firm by Portland standards.

While I suppose it’s easy to write it all off as a big-firm lawyer representing some pissed off rich people against a wrongdoing rich guy, the lesson underneath is that we all need a civil justice system. We all need access to the courts. We all need to be able to hold wrondoers accountable. That should be true whether the case involves multi-millionaires fighting over who owes what to whom or whether the case involves a working person who suffered profound injury caused by a dangerous product.

David Sugerman

The Center for Justice and Democracy compiles fact sheets on a number of civil litigation topics, including case filings, litigation expenses, lawyer fees and the like.

Here’s a nice annotated summary from the Civil for Justice and Democracy of the myths connected with the civil justice system:

http://centerjd.org/MB_2007civil.htm

Two of my favorites:

1) The “frivolous lawsuit malpractice crisis” is shown to be a myth.

From an article in the New England Journal of Medicine:

“A recent Harvard School of Public Health study that closely examined 1452 closed claims concluded that ‘[p]ortraits of a malpractice system that is stricken with frivolous litigation are overblown.’[fn4] The study found that most injuries resulting in claims were caused by medical error, and that those that weren’t were, nevertheless, not “frivolous” claims. [fn5]”

Source: David M. Studdert, Michelle Mello, et al., “Claims, Errors, and Compensation Payments in Medical Malpractice Litigation,” New England Journal of Medicine, May 11, 2006.

2) And then there’s the tidal wave of litigation that is overrunning our courts because too many injured people file lawsuits:

“The number of tort trials concluded in U.S. District Courts declined by 80 percent from 1985 to 2003.”

Source: Bureau of Justice Statistics, U.S. Department of Justice, “Civil Justice Statistics,” found at http://www.ojp.usdoj.gov/bjs/civil.htm

There are all sorts of other topics covered in the CJD reports. If the general importance of the civil justice system matters to you, you might want to peruse their website, www.centerjd.org

David F. Sugerman