Barnett's Notes on Commercial Litigation

March 2008

Volume IV
Issue 3

In This Issue

1. Fighting Goliath -- and Other Nuisances.

2. Did You Know? Impeachment as remedy for unpopular judging.

3. Bidness Torts Ain't What They Used to Be. Part 1 of a short history on Texas tort reform.

4. New SG Partners. Hoek and Sklaver make us proud.

5. Hot Lunch. A useful quiz on working with partners.

6. Post-Subprime Time. Cartoon.

7. Blawgletter® Roundup. Links to favorite recent posts.

8. Links & Info. Er, links and info -- what else?

Chief Justice John Marshall. Should judges have to answer for their opinions?

Did You Know?

An Annenberg Public Policy Center survey found in 2006 that 69 percent of respondents said judges who make an "unpopular ruling" should face losing their jobs.

The question asked "[h]ow important do you think it is to be able to impeach or remove a judge from office if the judge makes an unpopular ruling -- essential, very important but not essential, somewhat important, or not too important?" Twenty-one percent answered "somewhat important", 30 said "very", and 18 replied "essential".

Your Editor notes that the phraseology implies a role for impeachment as corrective for wayward magistrates -- at least the ones who flout the popular will. Members of the legal profession know, of course, that judicial independence means nothing if it doesn't mean freedom to rule according to law and facts without fear of adverse personal consequences.

Learned Hand, in his 1957 Holmes Lectures at Harvard, favored a powerful judiciary that the rest of us trust to restrain itself in wielding power. He thought that guaranteeing judges almost boundless discretion would produce the best decisions -- so long, at least, as they exercised self-restraint.

But what if they don't restrain themselves? Ah. That's the worry, isn't it? Which may help explain the Annenberg survey result.

New SG Partners

Kathryn P. Hoek

Steven G. Sklaver

Your Editor wishes congratulations to Kathryn P. Hoek and Steven G. Sklaver on their joining the ranks of partners in our firm, Susman Godfrey L.L.P. Both work principally in the Los Angeles office.

Ms. Hoek graduated from Yale Law School in 2001 and joined the firm in 2005 after clerking for U.S. District Judge Lee Rosenthal in Houston.

Northwestern University School of Law awarded Mr. Sklaver his J.D. in 1998. He clerked for U.S. Circuit Judge David M. Ebel in Denver and started at SG in 2005.

SG's partnership track generally runs four years with the firm and at least five years out of law school. As Ms. Hoek's and Mr. Sklaver's less than three years at SG demonstrate, there are exceptions.

Hot Lunch

Your Editor recently tried out the following questionnaire on colleagues at our annual office retreat:

For each statement about working with partners, fill in the blank with your choice among (a), (b), (c), and (d).

1. Partners are _____.

(a) Good-looking.

(b) Brilliant.

(d) Human.

2. It's not about ____.

(a) The money.

(b) The bike.

(d) You.

3. Your best work is ____.

(a) Rare.

(b) Self-levitating.

(d) Essential.

4. Push back, but do it ____.

(a) Often.

(b) With ample force.

(d) Diplomatically.

5. Learn ____ style.

(a) Strunk's The Elements of.

(b) The meaning of peri-

(d) Your own.

6. Learn the partner's ____.

(a) Most embarrassing secret.

(b) Deepest fear.

(d) Working style and preferences.

7. Mind the ____.

(a) Store.

(b) Voice in your head.

(d) Gap.

Blawgletter® Roundup .

Links to favorite recent posts from Blawgletter®:

Principles of the Law of Aggregate Litigation: Vioxx

The First Thing We Do, Let's Kill All the Lawsuits

Mere Words: The Case of Obama

Tips on Working with Me

Why Do Clients Choose Contingent Fees?

"Trial Only" Class Counsel?

Federal Judge Explains How Civil Litigation Became a "Paper War"

Googling for Email

Despite Supreme Court Reversal, Seventh Circuit Again Overturns Dismissal of Tellabs Securities Fraud Case

Can Public Entities Hire Lawyers on a Contingent Fee Basis?

Fighting Goliath -- and Other Nuisances

Caravaggio's David and Goliath (1599).

The Bible story of David and Goliath ends with the hulking Philistine receiving, from young David's sling, a rock to the forehead. The future king takes advantage of the giant's loss of consciousness to slay and decapitate him, chasing the Philistines from the field of battle.

People use David v. Goliath as shorthand for the virtuous weak overcoming a powerful menace. Robert Redford has now deployed it in a 30-minute documentary film, Fighting Goliath: The Texas Coal Wars (2008). Fighting Goliath tells about Texas cities that banded together to prevent TXU from rushing through permits to burn coal in new power-generation plants. Susman Godfrey's pro bono representation of the coalition figures prominently in the movie.

Mr. Redford will introduce Fighting Goliath at its Houston premiere on March 27, 2008. More information here and here.

The firm has also joined a broader attack on climate change . The case, Native Village of Kivalina v. ExxonMobil Corp., No. 08-1138 (N.D. Cal.), alleges that loss of sea ice has exposed the Inupiat Eskimo village of Kivalina in Alaska to pounding of coastal storm surges and will force the 400 residents to move from land their people have occupied from time immemorial.

Kivalina, Alaska.

The complaint alleges that the 24 defendants contributed to global warming by releasing tons of fossil fuel effluent into the Earth's atmosphere. The principal claim aims to bring them, as large emitters of greenhouse gases, within the tort of nuisance.

We know of course that we face an uphill battle, see article from NYT, and yet we feel a little like David. We, too, aim to strike a stunning blow upside the head of a gigantic problem.

Barry Barnett
Dallas, Texas

Bidness Torts Ain't What They Used to Be

Although the Restatement (Second) of Torts (1977) remains the standard today (for just a little longer ), business torts have sea-changed.

A lot in the Texas business tort landscape has changed since Your Editor started practicing more than 22 years ago.

The Halcyon Days. In September 1985, the giddiness from the 1979-81 spikes in oil prices – the equivalent of almost $70 a barrel today! – hadn’t started wearing off. Popular culture reflected fascination with things Texan. People fondly remembered John Travolta and Debra Winger in Urban Cowboy (1980) – itself a celebration of the broad prosperity that the oil boom spread across the Lone Star State. And lots of folks still watched Dallas, a series about a rich oil family. It ranked as the second most popular show on television.

Then, on November 19, 1985, Pennzoil won a $10.53 billion verdict from a Harris County jury against Texaco for tortious interference with Pennzoil’s oral contract to buy Getty Oil. The largest verdict ever – in a business tort case! The high Texas sky seemed the limit for an aspiring business trial lawyer late out of law school, fresh from a Fifth Circuit clerkship, and starting at a firm that cut its teeth on commercial cases.

A Shadow Falls. Enter Mike Wallace, he of 60 Minutes fame, and a segment on the Supreme Court of Texas. Mr. Wallace titled the story “Justice for Sale”, the nub of which accused the Court of kowtowing to their personal injury lawyer backers. The broadcast aired on December 6, 1987.

We can now see the program as a watershed event – not only for torts of the personal injury genre but also for business torts (not to mention plain old breach of contract claims).

Can You Say Tort Reform? Thanks in part to “Justice for Sale”, the movement in Texas for tort reform gathered steam in the late 1980s and 1990s. The year 1990 saw the founding of Citizens Against Lawsuit Abuse. Texans for Lawsuit Reform drew its first breath somewhere around 1995. And all three branches of government – the legislature, the executive, and the judiciary – started taking on a distinctly more conservative, business-friendly, and anti-lawsuit cast.

Let me pause here to mention that – rhetorically at least – the folks who still seek “reform” of tort law have moved on. Now they want to shut down the “litigation lottery”, end “jackpot justice”, and fill in “judicial hellholes”. They have almost ceded the debate about “reform” to the againsters, who apparently enjoy whipping a dead horse. Also putting quotation marks around phrases – “tort reform” – they mean to ridicule.

The new terminology taps into people’s ambivalence about civil lawsuits as a way to resolve disputes. Even SpongeBob Square Pants features a spurious personal injury lawsuit (by Plankton against Mr. Krabs) for a slip-and-fall in the Krusty Krab restaurant. (Episode 62). The piscatorial jury at first seems sympathetic to Plankton. But attorney SpongeBob shows that Plankton cooked up the lawsuit to get the secret formula for Krabby Patties, and – despite much jurorial grumbling about Mr. Krabs’s stinginess – the episode ends in a defense verdict. The result renews faith in Bikini Bottom civil justice and in juries everywhere.

Baby and Bath Water? The Plankton v. Krabs case highlights the worry that appeals to emotion for personal injuries may, in the hands of a gullible jury, cause justice to miscarry. But what we once called tort reform nowadays goes way beyond personal injury and wrongful death cases. Presently it seeks across-the-board changes that would weaken tort law protections for businesses. A leading tort reform group, for example, touts Texas legal changes that disadvantage business litigants as much as or more than personal injury claimants.

Examples of the legislative innovations that affect business tort litigation include:

· limits on appeal bond requirements,

· procedural barriers to class actions,

· liberalization of forum non conveniens dismissals,

· expansion of trial-delaying interlocutory appeals,

· offsets for fraud and other intentional torts,

· caps on punitive damages, and

· curtailment of venue choices.

Whatever their merits in the context of personal injury lawsuits, these measures have made prosecuting business tort claims harder and defending them easier. I don’t know whether or not the legislature intended that to happen. But happen it certainly did.

Post-Subprime Time

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