With election day in the US just 2 days away, this is a plea to all to get out and vote on Tuesday, if it's not already done.
This also seems an appropriate time to comment that it seems plain that both politics and tort litigation tend to inspire extreme views, generally to the detriment of society.
Our presidential campaign this year has been marked by ads and extremist emails too often filled with either outright lies or distortions of small nuggets of truth. On top of that come blatantly extreme attacks on each contender's personal life and views. I'll add my voice to the many who are asking for "better" from our politician and parties.
Sad to say, the same is too often true for discussion of tort litigation issues. Extreme views in tort litigation are illustrated by articles built around extreme cases instead of in depth looks at the overall facts. Extreme attacks on individuals are illustrated by comments posted beneath a Wall Street Journal blog post that noted the much too young death of Fred Baron, a very successful but sometimes controversial plaintiff's lawyer who spent decades on asbestos litigation, with his early work shaped and informed by his work related to cases arising from an infamously dirty place commonly known as the Tyler Texas pipe plant. In my view, debate about tort litigation issues also needs "better" than extremism.
Saturday, November 1, 2008
Update - Canada Adopts A Position of Silence on Chrysotile Asbestos Exports
A prior post here noted that Canadian scientists recently criticized the Canadian government for continuing to support global sales of chrysotile asbestos fibers. The industry historically was very valuable for Canada in terms of jobs, taxes and revenues - the mining itself is graphically shown in a wonderful McCord Museum set of online photos of miners and the mines that show abysmal safety practices.
According to a front page Globe and Mail article on October 31, 2008, Canada took a formal position of silence this past week at proceedings under the Rotterdam convention to decide whether chrysotile asbestos fibers should be added to a list of the world's most dangerous substances and thereby banned to a large degree. In past years, Canada actively spoke against adding chrysotile to the list. The net result was the same because the convention calls for consensus, which was not achieved since nations such as Pakistan and India oppose the ban. Those nations are among many in which asbestos-cement board remains a popular building product despite hazards that may arise if good work practices are not used when the material is cut or destroyed. Cement board is a strong building material used for many roofs and walls in countries that lack trees and/or the infrastrcuture needed for lumber for use for building materials, and is flexible enough that scrpas of it were molded into a giant penguin shown here because of concerns about the asbestos in it.
This outcome is major disappointment to groups such as the International Ban Asbestos Secretariat that has worked for over a decade to obtain a global ban on asbestos fiber sales.
According to a front page Globe and Mail article on October 31, 2008, Canada took a formal position of silence this past week at proceedings under the Rotterdam convention to decide whether chrysotile asbestos fibers should be added to a list of the world's most dangerous substances and thereby banned to a large degree. In past years, Canada actively spoke against adding chrysotile to the list. The net result was the same because the convention calls for consensus, which was not achieved since nations such as Pakistan and India oppose the ban. Those nations are among many in which asbestos-cement board remains a popular building product despite hazards that may arise if good work practices are not used when the material is cut or destroyed. Cement board is a strong building material used for many roofs and walls in countries that lack trees and/or the infrastrcuture needed for lumber for use for building materials, and is flexible enough that scrpas of it were molded into a giant penguin shown here because of concerns about the asbestos in it.
This outcome is major disappointment to groups such as the International Ban Asbestos Secretariat that has worked for over a decade to obtain a global ban on asbestos fiber sales.
Wednesday, October 29, 2008
Global Litigation Complicated by Various Jurisdictions Having Unique Evidence and Discovery Rules - Illinois' "Wacky" Rules on Depositions
As tort litigation becomes increasingly global, there is a need to know at least something about rules around the globe for collecting evidence and testimony. Many rules are more or less the same, but unique rules in particular jurisdictions present both pitfalls and opportunties. A goal is to identity some of the rules as an occasional topic for this blog.
To start, here's a link to a wonderful August 25, 2008 National Law Journal article on Illinois' "wacky rules" for depositions. The basic wackiness is that Illinois law specifies two flavors for depositions - evidence and discovery, with the latter seldom useable at trial. The substantive and humourous article is by Jerry Solovy and Bob Byman, two of Jenner & Block's many excellent trial lawyers. The article is found in full text on Jenner & Block's website.
To start, here's a link to a wonderful August 25, 2008 National Law Journal article on Illinois' "wacky rules" for depositions. The basic wackiness is that Illinois law specifies two flavors for depositions - evidence and discovery, with the latter seldom useable at trial. The substantive and humourous article is by Jerry Solovy and Bob Byman, two of Jenner & Block's many excellent trial lawyers. The article is found in full text on Jenner & Block's website.
Tuesday, October 28, 2008
Federal Judge Bars Corporate Defendant from Using Paid Google Link Related to Online Search for Information on Events Related to Ongoing Trial
The battles to shape public and others opinions related to litiagtion now include battles waged on the Internet using blogs, paid links and other teqchniques described by Richard Levick in his 2008 book on communcations strategies, as mentioned in a prior post of this blog on October 8. 2008. Now, there's a new and concrete example of this battle, including a judicial ruling on a litigant (Chevron) which used a paid Google link to direct information to persons who turn to a Google search as the means to searcg the Internet for information about the Chevron litigation.
The example arises from Chevron's ongoing trial invovling tort claims arising from its actions in Nigeria. The judge who issued the opinion is a well-regarded federal judge who once represented plaintiffs while in private practice, but who also has unhesitatingly ruled for defendants in "mass tort" cases. So, the ruling may carry a bit more than the usual clout for a trial court ruling. The full text of the Law.com article is pasted below.
__________________________________________________________
Judge: Chevron Must Remove Paid Google Link Tied to Search of Plaintiff's NameDan Levine10-28-2008
A widely watched trial over Chevron's Nigerian operations featured a new online frontier Monday in the battle to influence the hearts and minds of potential jurors.
While imposing a general gag order, Northern District of California Judge Susan Illston ordered Chevron to take down a paid Google link sponsored by the company. Plaintiffs objected to the link, which directed Internet surfers to a Chevron-created Web site that provided information about the incident at issue in trial.
The company placed the link to appear when anyone Googled the name of the lead plaintiff, Larry Bowoto, plaintiffs argued. "This new advertising strategy was launched just after the jury pool learned the names of the parties," wrote lead plaintiff attorney Dan Stormer of Hadsell Stormer Keeny Richardson & Renick.
In court Monday, defense attorney Robert Mittelstaedt of Jones Day defended the sponsorship, pointing out that nine of the first 10 Google search results for the lead plaintiff's name produced Web pages friendly to Bowoto.
"Are they sponsored links?" Illston asked.
Mittelstaedt said he didn't think so, and the judge indicated that that's what concerned her.
"To me, that's as sure a thing as giving a statement to the press," Illston said. When Mittelstaedt responded that Chevron was "way behind," the judge cut him off.
"Way behind in fighting the case in the press? We're not going to fight the case in the press," she said, adding that plaintiffs would be forbidden from participating in rallies or protests surrounding the case.
A group of Nigerian plaintiffs assert wrongful death and torture, among other claims, against Chevron for events that took place in May 1998. According to the plaintiffs, a group of villagers took over a Chevron oil platform in order to peacefully protest the company's operations in the country. The oil giant called Nigerian military forces, which shot multiple people.
However, the San Ramon, Calif.-based company argues the protest was actually a violent hostage taking. The company should not be liable for calling in the authorities to deal with an act of lawlessness, its lawyers argue.
The gag order dispute occurred immediately prior to jury selection in the case. Plaintiffs asked for the entire jury pool to be dismissed, but Illston rejected that remedy. In general, corporations have a First Amendment right to participate in public debates, said Robert Varian, an Orrick, Herrington & Sutcliffe partner who is not involved in the case. While some commercial speech -- like product pricing -- is held to a lower First Amendment standard, Varian said broader statements enjoy greater protection. "The interesting question is, when a company like Chevron -- particularly in litigation -- is being criticized, and it responds, how do you deal with that?" he said.
Plaintiffs had criticized Chevron over its broader, image-related marketing practices, including banner ads in the San Francisco Chronicle and billboards. Illston refused to prohibit those practices. She did gag all attorneys and parties from making any statements to the press for the duration of trial.
Stormer questioned jurors about Chevron's ads during voir dire, and he received varying responses. One man said that in his mind, Chevron would start a little bit ahead because of the ads. Another woman stated that the ads merely demonstrated Chevron had a lot of money to buy ads. Neither made it onto the jury.
Opening statements are slated to start today before the seven-man, two-woman panel.
The example arises from Chevron's ongoing trial invovling tort claims arising from its actions in Nigeria. The judge who issued the opinion is a well-regarded federal judge who once represented plaintiffs while in private practice, but who also has unhesitatingly ruled for defendants in "mass tort" cases. So, the ruling may carry a bit more than the usual clout for a trial court ruling. The full text of the Law.com article is pasted below.
__________________________________________________________
Judge: Chevron Must Remove Paid Google Link Tied to Search of Plaintiff's NameDan Levine10-28-2008
A widely watched trial over Chevron's Nigerian operations featured a new online frontier Monday in the battle to influence the hearts and minds of potential jurors.
While imposing a general gag order, Northern District of California Judge Susan Illston ordered Chevron to take down a paid Google link sponsored by the company. Plaintiffs objected to the link, which directed Internet surfers to a Chevron-created Web site that provided information about the incident at issue in trial.
The company placed the link to appear when anyone Googled the name of the lead plaintiff, Larry Bowoto, plaintiffs argued. "This new advertising strategy was launched just after the jury pool learned the names of the parties," wrote lead plaintiff attorney Dan Stormer of Hadsell Stormer Keeny Richardson & Renick.
In court Monday, defense attorney Robert Mittelstaedt of Jones Day defended the sponsorship, pointing out that nine of the first 10 Google search results for the lead plaintiff's name produced Web pages friendly to Bowoto.
"Are they sponsored links?" Illston asked.
Mittelstaedt said he didn't think so, and the judge indicated that that's what concerned her.
"To me, that's as sure a thing as giving a statement to the press," Illston said. When Mittelstaedt responded that Chevron was "way behind," the judge cut him off.
"Way behind in fighting the case in the press? We're not going to fight the case in the press," she said, adding that plaintiffs would be forbidden from participating in rallies or protests surrounding the case.
A group of Nigerian plaintiffs assert wrongful death and torture, among other claims, against Chevron for events that took place in May 1998. According to the plaintiffs, a group of villagers took over a Chevron oil platform in order to peacefully protest the company's operations in the country. The oil giant called Nigerian military forces, which shot multiple people.
However, the San Ramon, Calif.-based company argues the protest was actually a violent hostage taking. The company should not be liable for calling in the authorities to deal with an act of lawlessness, its lawyers argue.
The gag order dispute occurred immediately prior to jury selection in the case. Plaintiffs asked for the entire jury pool to be dismissed, but Illston rejected that remedy. In general, corporations have a First Amendment right to participate in public debates, said Robert Varian, an Orrick, Herrington & Sutcliffe partner who is not involved in the case. While some commercial speech -- like product pricing -- is held to a lower First Amendment standard, Varian said broader statements enjoy greater protection. "The interesting question is, when a company like Chevron -- particularly in litigation -- is being criticized, and it responds, how do you deal with that?" he said.
Plaintiffs had criticized Chevron over its broader, image-related marketing practices, including banner ads in the San Francisco Chronicle and billboards. Illston refused to prohibit those practices. She did gag all attorneys and parties from making any statements to the press for the duration of trial.
Stormer questioned jurors about Chevron's ads during voir dire, and he received varying responses. One man said that in his mind, Chevron would start a little bit ahead because of the ads. Another woman stated that the ads merely demonstrated Chevron had a lot of money to buy ads. Neither made it onto the jury.
Opening statements are slated to start today before the seven-man, two-woman panel.
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