Defense of Trial Lawyers...(Well, Sort Of)
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.”
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.
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.
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.
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.
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.)
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.
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.
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.
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.
1:00 AM, Do You Know Where Your Distressed Product Is?
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?
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.