The legal industry seems to have spun off an entire subsidiary, Asbestos. The litigation revolving around Asbestos. according to the Manhattan Institute (a New York based Think Tank) has been going on for over 30 years, and the only winners are the lawyers. In a report released today they are very critical of the ethics used. Ethics are are very basis of our legal system, yet ethics seem to be running a little short in the Asbestos litigation business. I managed to get a few minutes of James Copland’s time, his resume, in part reads….

James R. Copland is the director of the Manhattan Institute’s Center for Legal Policy, which seeks to communicate thoughtful ideas on civil justice reform to real decision-makers. Mr. Copland serves as managing editor of the Institute’s PointOfLaw.com, a web magazine that brings together information and opinion on the U.S. litigation system; and project manager for the Institute’s Trial Lawyers, Inc. series of publications that examine the size, scope, and inner workings of America’s lawsuit industry.

James Copland agreed to an interview, and I have to admit that he opened my eyes to this rather seedy operation.

You work with the Manhattan Institute, a ‘think tank’, can you tell us a little about yourself and the organization?

Founded 30 years ago, the Manhattan Institute is a public policy research organization committed to free enterprise and personal responsibility. Since 1986, we have been focused on reforming America’s liability system. The Washington Post called two of my colleagues, Walter Olson and Peter Huber, the “intellectual gurus of tort reform.”

I joined the Institute in 2003 to direct its Center for Legal Policy, which now houses the liability reform efforts. I was previously a consultant at McKinsey and Company, and I earned JD and MBA degrees from Yale. Under my leadership, the Center has founded a leading legal weblog, PointofLaw.com, and published a series of reports about the litigation industry entitled Trial Lawyers, Inc. We just released the latest such report, about asbestos litigation.

Your report is pretty critical about the legal industry and their fascination with Asbestos. While Asbestos induced deaths and misery are well documented, the lawyers seem to have created a whole new genre of law. I look at the situation, and I have to say it greed oriented. Is this law, or this chasing the next BMW?

This area of litigation, today, is much more about profit than the rule of law. Indeed, the rule of law has been so twisted by asbestos litigation over the last 35 years that the prior legal regime is scarcely recognizable.

Let me be clear: the harm caused by asbestos has been a national tragedy. It’s not a one-sided tragedy, of course. Asbestos is uniquely flame retardant, and without it, our Pacific fleet would have likely sunk in World War II. Many of the asbestos injuries we see today come from those exposed in naval shipyards.

But today’s asbestos lawyers bundle together hundreds and thousands of claims and agree to quick settlements give the individuals genuinely hurt by asbestos pitiful payouts, along with many who aren’t sick at all. And the companies paying the money are not those that made asbestos; those companies have long been bankrupt.

I believe it was 30 years ago, give or take, that the courts allowed the legal profession to advertise. Based on what I see on late night TV they are doing it with gusto! Pretty much though it is Ambulance chasing. Have their standards dropped, or is it that the industry has changed?

You’re right: for most of American history, attorney advertising was verboten under legal ethics rules, akin to “chasing victims” at the scene of an accident. While the latter is still forbidden, the Supreme Court decided that attorney advertising was a First Amendment right in 1977. Today, asbestos-lawyer ads continue to flood late-night and daytime television, as well as 20 of the top 30 search terms on Google.

Your report says that between 2000-4000 people are diagnosed with the very deadly form of cancer known as Mesothelioma, yet the number of court cases far out numbers these statistics. Why?

Mesothelioma is a rare but deadly cancer associated almost exclusively with asbestos exposure. But asbestos is also associated with cancers that have other, more likely, causes, such as lung cancer; as well less serious lung impairments, often grouped as “asbestosis.” These more ambiguous cases have constituted the overwhelming majority of asbestos claims in recent years.

It’s important to realize that most of these asbestos plaintiffs have not sought out an attorney for representation but rather are people recruited by lawyers for mass lawsuits. Typically, plaintiffs lawyers advertise for “mass screenings” out of vans or trucks near worksites, often in coordination with labor unions. There, workers are given X-rays—often by individuals with little or no technical training or expertise—and these X-rays are “reviewed” by doctors, who diagnose asbestosis.

It turns out that the lawyers’ preferred doctors performed tens of thousands of diagnoses—and almost always found asbestos-related injury. One doctor identified injury in 97.5 percent of cases. A Johns Hopkins medical school study found that plaintiffs’ X-rays in which the lawyers’ own doctors found asbestos injury in 95.9 percent of cases only had such injury 4.5 percent of the time, according to a neutral review of the same X-ray films.

The game is really all about the money. By stringing together lots of cases, plaintiffs’ lawyers can make a lot of money by settling their claims for a fairly small amount each; and defendant companies would rather do that—settle on the cheap—than go through the expensive and risky process of going to trial.

Your report is most certainly ‘at odds’ with the legal companies, and indeed the legal system, I read a report that cited less than 1600 of the hundreds of thousands of cases that have been filed, have actually made it to the courtroom . If you had the power, what would you do to redress the system?

Venue reforms could make a big difference. The reason a lot of defendants don’t want to go to trial in asbestos cases is that they are inevitably bundled by plaintiffs’ attorneys and filed in the most pro-plaintiff jurisdictions in the country. As noted by Mississippi trial lawyer Dickie Scruggs—recently convicted for bribing a judge—these are jurisdictions “where the judiciary is elected with verdict money . . . and it’s almost impossible to get a fair trial.” Really, asbestos litigation is a national problem and calls for a federal solution, but until then states can adopt sensible rules so that they don’t become asbestos-case magnets.

Also, states that haven’t done so should reform the long-standing doctrine of joint and several liability, which makes a defendant liable for a plaintiff’s full damages even if that defendant was minimally responsible for the injury. Scruggs has said that asbestos litigation today is really just “the endless search for a solvent bystander.” Since most of those bystanders had nothing to do with asbestos manufacture, they should not be paying for all people injured by the product. Those individuals may deserve some special compensation, but that should be handled legislatively, not through the tort system.

Finally, sunshine is the best disinfectant. A lot of the new fraud with asbestos litigation has to do with “double-dipping”—taking a single plaintiff and hitting up multiple defendants on varying theories of causation. One local judge in Ohio discovered that lawyers had alleged, in different forums, that a plaintiff had been exposed to asbestos on a World War II naval vessel, in shipyards, in a factory as a teenager, and from filters in 1950s-era cigarettes. These frauds are often impossible to discover, because filings and settlements are kept from public view, and they need to be accessible to prevent abuse.

Flimsy medical evidence’ I believe that was the term, how do you return the legal system to reality?

Well, in addition to the above, states should consider adopting standards of medical evidence that would weed out bad claims. The Manhattan Institute has long thought evidence matters in litigation: Peter Huber wrote two books on the topic in the 1990s, and was cited in Supreme Court decisions that reshaped the way scientific evidence is handled in federal court. Simply by mandating that asbestos claims meet minimal medical criteria, states could make it much harder for trial lawyers to submit bogus claims.

In addition, a global litigation reform that I think makes sense for the United States is adopting some form of “loser pays” system like you see in every other developed country (except Japan, which is a very non-litigious society). It’s simply too expensive for defendant companies to ferret out fraud and go to trial in asbestos litigation if they can settle claims for a few thousand dollars each. But if they were able to get reimbursed for their expenses in the event of victory, actually reviewing claims and going to trial when injuries looked suspect would become a much more viable strategy.

This has been a very short interview, I am sure that I have missed a few important points, what are they?

I think that too often the debate over “tort reform” focuses on legislation—when courts and prosecutors matter a great deal. We saw some of the most sweeping improvements in this type of litigation after 2005, when a federal judge in Texas, Janis Graham Jack, held hearings and made extensive findings about fraud in the asbestos litigation industry. Congress held hearings. New asbestos case filings plummeted—some 95 percent—and mass screenings ceased. Unfortunately, there were no subsequent indictments. No one was disbarred. One doctor voluntarily submitted his medical license in Texas, but that was it. Predictably, mass screenings have returned: we documented two in Oklahoma in the past six months. If lawyers know they can get away with murder—and make a bundle in the process—at least some of them are bound to do so.

Simon Barrett

http://zzsimonb.blogspot.com

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