In This Issue

Everybody likes to get an award.

Did You Know?

Greenhill School in Addison, Texas, named Your Editor to its governing board of trustees.

Susman Godfrey partner Terry Oxford serves as the board's vice-chair.

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Big unit starts a streak.

Twofer

Forecasters predict that the warming trend for the best commercial litigation lawyer in the world will continue at least through 2007.

This year, as in 2006, Who's Who Legal awarded its highest honor for commercial litigators to Susman Godfrey's own Steve Susman.

Managing editor Callum Campbell said: "It is an outstanding achievement to win the Who’s Who Legal: The International Who’s Who of Business Lawyers Commercial Litigation Lawyer of the Year Award for a second time. Stephen Susman’s continuing success demonstrates a consistent and unparalleled level of performance and service to clients. We have no hesitation in declaring him the world’s leading commercial litigator."

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Hot Lunch

Words matter. Just ask Frank Luntz.

But before we get to Dr. Luntz, note that the National Oceanic and Atmospheric Agency reported in January 2007 about a "general warming trend" nationally and worldwide. NOAA reports that "the rate of warming has accelerated over the past 30 years, increasing globally since the mid-1970s at a rate approximately three times faster than the century-scale trend."

The New York Times saw the NOAA study as a possible watershed. It emphasized that, under the current administration, NOAA never before "said unequivocally that a buildup of greenhouse gases was helping warm the climate."

Which brings us back to Frank Luntz, author of Words That Work (2007). Dr. Luntz helped transform how politicians talk about issues. He persuaded the GOP to speak, for example, about the "death tax" instead of the "estate tax". He also advocated calling "privatization" of Social Security "personalization". He believes that using the right words can alter gut reactions and therefore rally support for policies.

Dr. Luntz counsels pols to soften "global warming" to "climate change". Global warming scares people, but climate change sounds more benign -- or, in his words, "less hysterical".

Trial lawyers of course know the importance of word selection. But how do they discover the expressions that provide the best frame for their client's cause?

Dr. Luntz does it for politicians with focus groups and interviews. He especially likes to give people dials that they can twist to record visceral reactions, and their intensity, to words and phrases -- good, bad, or indifferent. The zero on the dial means that the listener hates what he hears, and 10 signifies that she loves it.

Your Editor recalls many epiphanies during jury research as focus group participants or mock jurors described their views of a case. Someone usually pops out with a word or phrase that feels just right.

Should we make identifying thematic expressions a specific goal of jury research?

Heck yes. And make sure to tell your jury consul-tant that you want study participants to use those dial gizmos.

Will the Globe Warm to Climate Change Litigation?

Artemisian Zeus (ca. 470 B.C.), National Archeological Museum , Athens. Zeus
controlled weather and liked to toss thunderbolts.

Reflecting their faith in Zeus's meteorological prowess, the Greeks imagined him hurling lightning bolts when angry. And, by shaking his aegis, he summoned storm and tempest. Zeus also brought forth the seasons.

Zeus's name may not come up a lot in earnest discussions of global warming, but he does symbolize mortal feelings of impotence in the face of Nature. Sure, we like hearing that our orbiting moon makes tides rise and fall. That warm oceans spawn hurricanes and typhoons. That Nature's rhythms bring spring after winter. We can almost persuade ourselves of what we hope -- that mostly benign forces rule Nature's destiny.

But nowadays pesky climatologists blame us for natural disasters. And they cite a growing bill of particulars against us. For example:

• In February 2007, the Intergovernmental Panel on Climate Change reported that "many natural systems are being affected by regional climate changes, particulary temperature increases" and that future impacts will include greater flooding, more destructive storms, rising sea levels, and growing malnutrition.
  
• Today, the Environmental Protection Agency broadly agrees with the IPCC's conclusions.
  
• Eighty percent of Americans consider global warming either a "serious and pressing threat" (43 percent) or one that "should be addressed" "gradually" (37 percent).
  
• In his State of the Union Address a few months ago, President Bush -- he who rejected the Kyoto Protocol -- pledged to "confront the serious challenge of global climate change" by reducing U.S. gasoline consumption 20 percent.
  
• Earlier this year, a private equity group that plans to buy TXU -- the largest electrical utility in Texas -- helped force the company to abandon plans to build extra-dirty coal-burning plants.

Depressing, right? Feel helpless, eh? Not so fast. Stay with me a little.

To a hammer, everything looks like a nail. And recall that Your Editor works at a law firm that concentrates on commercial trial law. So no surprise will ripple through you to learn that we propose to strike at global warming through Climate Change Litigation.

Huh? How does one litigate climate change? A course on "Climate Change Liability and Litigation" provides clues. The syllabus lists:

• "forcing actions" to compel changes in regulatory or enforcement behavior by federal, state, and local governments;
  
• litigation and petitions under international law for climate change liability, including in U.S. courts; and
  
• claims directly against carbon emitters.

Showing a gift for understatement, the syllabus also mentions practical challenges for this "novel type of lawsuit" -- little things like standing to sue, preemption by federal law, redressability, the political question doctrine, proximate cause, and class actions.

The idea may prove less nutty than it sounds. We just finished helping the Texas Clean Air Cities Coalition beat back electricity behemoth TXU's efforts to get "fast track" permits for eight coal-burning plants. So we have that going for us. "Which" -- as Bill Murray would say -- "is nice."

As for old Zeus -- also the god of commerce -- we would've loved having him on our trial team. He might've given TXU a thunderbolt or two.

Barry Barnett, Editor

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Secrets of Evaluating Cases

Old Red Courthouse (1893) in Dallas. Like many others, it saw plenty of cases that lawyers misevaluated on the front end.

Speaking of shocks, remember the special feeling you get when a non-pro bono case turns pro bono? Yikes!

Nobody likes working, by accident, for free. So how can you protect yourself? Two words: case evaluation. Okay, three words: rigorous case evaluation.

At Susman Godfrey, we've evolved a case acceptance system over our 25 years. I can't tell you exactly how we do it -- my partners would shoot me -- but you may want to consider these principles:

1. Filter first. Give each lawyer authority to consider whether a potential case deserves closer study. Many cases shouldn't pass through this filter. If the case does look promising, the contact lawyer can open a "case acceptance" file.
   
2. Do due diligence. Now you have to assess liability, damages, and -- surprise! -- collectibility. The right amount of due diligence varies from case to case. Consider things like complexity (factual and legal), amount in dispute, availability of information and documents, and client sophistication.
   
3. Keep doing cost-benefit analysis. Most potential cases should die during due diligence. Know when to cut your losses. A case with huge damages and zero liability shouldn't tempt you to keep plodding along.
   
4. Put it in writing. The discipline of writing out your analysis has a wonderful way of crystallizing issues -- and identifying dogs. The memo should run neither too long nor too short, but do try to keep it to under 10 pages. It ought to present the essential facts, theories of liability, the measure and amount of damages, and collectibility. It also needs to grapple with defenses, jurisdiction, venue, and likely procedural issues. And don't forget the fee arrangement!
   
5. Decide who decides. You need a decision-making body for case acceptance matters. Some firms let the managing partner do the job, and others appoint a committee. Generally, the more people who participate, the better. Every partner and associate at Susman Godfrey gets the same vote.
   
6. Debate it. Regardless of who decides, a sponsoring lawyer should orally summarize the key issues and answer questions. The questions usually spotlight weaknesses and risks and may prompt withdrawal of the case or more due diligence.
   
7. Vote. Up or down, with or without conditions -- but promptly, firmly, and definitely.
   
8. Stay flexible. Sometimes the client needs an answer right away. You may lose a great case if you can't move fast.
   
9. Attach consequences. The sponsoring lawyer needs an incentive to recommend winners and then to go out and win them. His or her compensation should depend significantly on whether or not the case pans out.

Good luck!

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Roundup

A scintillating, clickable selection from the pages of Blawgletter .

• Tort-O-Rama: WSJ Attacks "Tort Bar", Tries to Steal Its Lunch Money
  
• No Backsies, First Circuit Rules
  
• No Confirmation Without Estimation: Bankruptcy Court Has to Value Creditor Claims Before Confirming Reorganization Plan (Update)
  
• Lies to Ground Zero Workers Not Sufficiently Shocking, Second Circuit Holds
  
• Delaware Supreme Court Holds "Expropriation" of Majority Control Claim Viable
  
• Spotlight on Janet Moore -- Star Lawyer Coach
  
• Fredoian Slip
  
• Troll Dolls Win Reprieve on Friday the 13th
  
• Federal Circuit Signals Flood of eBay Remands
  
• Don Slimus
  
• Fifth Circuit Tosses Nationwide UCC Class
  
• Quote of the Day: Blackstone
  
• Quote of the Day: Jury Selection
  
• Does Tort Litigation Kill People? Posner Weighs in.
  
• Global Warming: Court Tells EPA to Regulate Greenhouse Gases

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