Miscellaneous Articles

In Defense of Trial Lawyers...(Well, Sort Of)

We hear a lot of complaining from some members of the political class, pundits, business people, the The Wall Street Journal editorial page and even some of our clients about “trial lawyers.” The term “trial lawyer” is code talk. What these people really mean is plaintiffs’ trial lawyers. (What do they think the lawyers on the other side of the courtroom do?) Some of our readers may agree with the complaining, except when they need the services of a “trial lawyer.”

Well, we’ve got news for the complainers. LAWYERS DON’T MAKE THE RULES. The rule making process is a three legged stool that the trail lawyers only sit on. Legislators make the rules, judges make the rules and, at least in California under our initiative and referendum system, the people (voters) make the rules. For an example, see the article on Karsky v. Nike and Prop 72 at zacklerlaw.com. So if any of our readers think that killing all of the trial lawyers will solve their legal problems, they will have killed the wrong (if not innocent) people.

Now we expect that most of our readers understand the legislative process and the process of going to the voters. For example, see Proposition 72 which was the barely successful business backed effort to repeal legislation requiring most employers to provide health care benefits. What we have out doubts about is the complainers’ understanding of the role of the judiciary.

In order to understand the role of the judiciary, keep in mind that there are two aspects to each lawsuit: issues of law and issues of fact. Issues of fact are determined by the triers of fact, usually a jury, or in the case of a bench trial, a judge. We’ll be the first to admit that a smart, devious, articulate, slick, well prepared attorney with first rate expert witnesses and a sympathetic or maybe just a pathetic client can change a sow’s ear lawsuit in a jackpot jury award, which (by the way) the trial and appellate judges can (and frequently do) take away. We’ll also note that jackpot jury verdicts can also be the result of lousy defense work, particularly when the defense attorney isn’t given the necessary resources by the defendant’s insurance carrier.

Guess what? Judges are also a part of the legal process. First, trial judges can make bad rulings that favor one side or the other. Sometimes a ruling may force a settlement. Others may significantly influence a jury’s decision or just flat out throw the plaintiff out of court. For obvious reasons defendants are very hard to throw out of court. And, believe it or not, trial judges have been known to give out very large awards in bench trials.

Second, trial judges and most importantly judges on the courts of appeal decide issues of law. They decide constitutional issues of law, statutory interpretations and make common law. Trial lawyers (both plaintiff and defense) may develop novel legal theories but it’s up to the judges to decide whether these theories become new law or if old theories remain the law. Don’t like a judicial decision? Quit wasting your time blaming the trial lawyer, he or she is only doing their job, and start blaming the judge. (By the way, we don’t agree with the legal fiction that judges don’t make the law, they only figure out what it really is (e.g. what the U.S. Constitution really means). These guys and gals MAKE public policy. Period. End of discussion.)

Who is the judge? You frequently hear that the California Supreme Court decided this and the Ninth U.S. Circuit Court of Appeals decided that. Well “courts” don’t make decisions; the individual judges that make up the courts make decisions. As noted elsewhere in this issue, Karsky was a 4 to 3 decision by the California Supreme Court. So, if you don’t like Karsky, then your dismay should be directed at the four majority judges.

Now, of the three methods by which the legal rules can be changed for good or ill, we would agree that changing the judges once they are on the bench, is undoubtedly the toughest. In regard to the federal bench, judges are appointed for life. So there, you’re stuck with the judges you don’t like. State court trial judges are elected or appointed and then elected. Very seldom are incumbent trial judges opposed, and to be frank, we don’t think that state court trial judges significantly influence the legal rules in California. Judges of the California Supreme Court and the Courts of Appeal are appointed and are subject to retention elections every 12 years. This may sound academic, but retention was not an academic subject in the 1980’s as far as Chief Justice Rose Bird and Associate Justices Joe Grodin and Cruz Reynoso were concerned.

Of course, the complainers can try to change the members of the legislature, although we’ll admit with the gerrymander in California that’s going to be very tough to do as the Governator found out in the November election. As explained above, they have limited opportunities to change judges on the courts. But they will never be able to change the membership of the third leg of the rule making stool, the voters.

COMMENT: Although the attorneys at Zackler & Associates have seen the inside of a few courtrooms and know how to spell judge, they do not litigate. However, Zackler & Associates does help its clients to determine whether they have a legal problem that requires the engagement of litigation counsel, and if so, help them obtain representation from appropriate attorneys, assist clients in working with litigation counsel and monitor the work of litigation counsel for quality and cost.


It's 1:00 AM, Do You Know Where Your Distressed Product Is?

We seriously doubt whether there is a company in the food or dietary supplement business that at one time or another has not faced the issue of how to dispose of an out-of-spec product. You’re operating your plant by rigorously following GMP’s and have an excellent HACCP program and low and behold the QC department discovers that one or more lots doesn’t taste, smell or look quite right, or worse yet the product is misbranded or adulterated. Fortunately, you still have control over the all of the suspect production. Now, what do you do with it?

Well, depending on the condition of the product, there is a menu of possibilities:
  • The dump
  • Cattle feed
  • Reprocessing
  • Relabeling
  • Distribution out of the country
  • Distribution through domestic distress and close out “big box” stores

Of course, if the product’s adulterated the only choice you have is to dump it. If it’s misbranded you will need to either dump it or relabel it. Even if the product is legally saleable as packaged but not up to your quality standards, you still face the issue of trying to recover at least some of your production costs without the product getting into the channels of distribution where it might reach those unforgiving customers with whom you have labored so long and so hard to build up a brand name franchise. On the other hand, once the distressed product is sent to a third party, you no longer have physical control, and who knows, where it might finally wind up. Therefore, whenever you are in a product disposal situation you must have trust and confidence that the disposer will handle the product exactly as promised and that load of off color juice will in fact go to Mexico and not be sold to an unwitting buyer at Von’s or Whole Foods, who will be lighting up your phones with customer complaints.

Comment: If you are unfortunate enough to be in an product disposal situation, Zackler & Associates can help you by examining the available disposal alternatives, locating reputable companies that will dispose of the distress product as promised, ensuring that your agreements with the disposal firm says what it should say to protect you and your brand, and auditing the disposal process so that you, your risk manager and any government types that might be involved are happy. At 1:00 AM you will be sound asleep knowing that your distressed product is exactly where it should be whether it’s the landfill, the cattle ranch or the grocery store in Guadalajara.