Every time that I think that nothing new can happen to entertain me in in the A&O Life scandal, I am wrong. Followers of the A&O debacle will enjoy the government’s Reply Brief to Christian Allmendinger’s Sentencing Memorandum. Here is the Reply.

The government’s Reply contains an entertaining description of Almendinger squirreling away assets and initially fleeing before his trial. Allmendinger returned only because he thought he would be released after a guilty verdict and he could flee then. Sucks to be wrong about that doesn’t it Chris?

A documentary on the A&O scandal would be entertaining enough to run on CNBC’s American Greed. The Martin Frankel scandal doesn’t have anything on A&O as far as dumbass interesting characters.

Update: I haven’t been able to copy and paste the photo, but here is a link to a photo of Allmendinger at the Spaulding’s Halloween party a few years ago. It’s photo number 2. I wonder why he didn’t wear a costume?

All the Justice Money Can Buy is Snigdha Prakash’s book about a Mark Lanier trial in the Vioxx litigation against Merck. I stumbled across the book on Amazon and decided to give it a read.

Lanier is a high-profile trial lawyer from Texas who has a very successful record. The book contains a quote that Lanier is one of the top 2–3 trial lawyers in the country—at worse. It is hard to argue with that statement. I will not try.

One of the things that Lanier is well known for is developing his own unique courtroom style that heavily incorporates PowerPoint presentations. Prakash details how Lanier backs up his groundbreaking use of PowerPoint in trial with a stellar support team, meticulous planning, detailed organization and tireless work. It’s not unusual for Lanier to wake up at 1:30 a.m. to prepare for the day’s trial testimony.

But Lanier has a lot of help. I can’t imagine how nice it would be to have my own in-house jury consultant, an aid de camp who is an outstanding attorney and a team of support attorneys and staff. It sounds a bit like a military general going to trial.

Here is the book’s Amazon description:

Mark Lanier knew he was facing an opponent willing to break every rule in the book, and each part of his case had to go just right for him to win. He had done it twice before. Could he do it again?

All the Justice Money Can Buy is the true-life story of a courtroom showdown between the man many consider the best trial lawyer of his generation and one of the nation’s richest and most-respected corporations.

Journalist Snigdha Prakash is embedded with the plaintiffs’ team for the seven-week trial, and takes us into the trenches of the tough—and dirty—battle between corporate interests and the individual that plays out in the courts. From early mornings when Lanier works in his hotel suite, to the daily post-mortems after court, and late nights in the plaintiffs’ “war room,” Prakash shadows Lanier and his team.

With its bird’s-eye view of the strategic thinking and meticulous planning that undergird Lanier’s seemingly unrehearsed performances in court, and of the well-oiled machine of lawyers and assistants that backs his every move, All the Justice Money Can Buy is a fast-paced, often funny journey behind the front-lines of a high-stakes, 21st century legal trial. Along the way, Prakash renders a piercing portrait of the challenges that await those who would take on corporate interests.

Part corporate expose´ and part legal thriller, All the Justice Money Can Buy is a gripping—and topical—read for our scandal-plagued times.

The trial was a New Jersey state court Vioxx trial on behalf of two plaintiffs. Lanier represented one of the plaintiffs and took the lead in proving liability in the trial, which bifurcated Merck’s liability for failure to warn and causation. That portion of the trial lasted two months.

Despite Lanier’s masterful work at trial, the jury found against Lanier’s client on liability. Lanier did not participate in the second phase of the trial, which resulted in a $47.5 million verdict for the remaining plaintiff.

The book is not a play-by-play of the entire trial. Instead, it focuses on opening and closing statements and the testimony of several key witnesses. This aspect of the book should make it more readable for non-litigators. As a litigation attorney, I would have loved it if the book was twice as long and covered in detail the entire trial and the pre-trial procedure.

It takes an enormous amount of time and work to get a pharmaceutical case to trial. Millions of pages of documents must be reviewed and appropriate expert witnesses must be hired and educated on the facts of the case so they can give testimony on the issues in the case. I can pretty much guarantee that the vast majority of that work on the plaintiff side was done by lawyers other than Lanier.

Those nameless lawyers are the unsung heroes of the Vioxx litigation. Lanier and other trial lawyers could not try a good case without that leg work having been performed by others. Of course, that work would not be very interesting to read about. Prakash understandably focused on the entertaining part: the trial.

I enjoyed this book. The story was an interesting read with some big characters on both sides of the case. This book should have widespread appeal for plaintiffs and defense lawyers, judges and members of the public who are interested in trials or the alleges corruption of the pharmaceutical industry.

Trial lawyers can identify with Lanier’s plight in the case: trying a great case, but losing anyway.

Yesterday’s Wall Street Journal contained this article about law schools changing course offerings in an effort to help students get jobs after graduating.

The article states:

Law schools are responding by infusing a practical focus into their curricula that, in many cases, have not changed in decades. So far, the transformations are most visible among so-called lower-tier law schools, but a few elite players are also starting to make adjustments.

Washington and Lee University School of Law in Lexington, Virginia, overhauled its third year curriculum in 2009 by swapping out traditional lectures for case-based courses.

New York Law School hired 15 new faculty members over the last two years to teach skills in negotiation, counseling, interviewing and fact investigation.

Professors at Indiana’s Maurer School of Law started teaching project management as well as so-called emotional intelligence.

And last year, Harvard launched a new problem-solving class for first years, while Stanford is considering making a full-time clinical course a graduation requirement.

What I found most interesting was this chart that accompanied the article:

That’s a scary trend if you are in law school or thinking about going to law school. If that trend continues, law schools will need to start offering courses on how to live under a bridge.

One other thing. I know that many law students think that good old Uncle Bubba or whoever can pull some strings and get them a job at Butler Snow or somewhere similar. He can’t—unless you finish in the top 3 in your class and would have gotten the job anyway.

Maybe things worked like that 50 years ago. But it didn’t work like that 19 years ago when I graduated from law school. It didn’t work like that 9 years ago when I left Baker Donelson. And it doesn’t work like that now. You will sink or swim on your own record. So study hard.

The Mississippi Business Journal’s quarterly health care issue contained an article on the unsuccessful efforts in the Mississippi Legislature to pass a bill requiring nursing homes to carry liability insurance. Here is a link to the digital issue. The article starts on page 32.

In the article Jackson attorney John Maxey speaks on behalf of the nursing home industry, which opposes efforts to require nursing homes to carry liability insurance. In an email to the MBJ on the issue, Maxey dropped this bombshell:

“The overwhelming majority of nursing homes already have liability coverage in place, and the remainder make provisions within their business model to satisfy any court-ordered financial obligations that might arise.”

Really? Thanks for the info. Mr. Maxey, because lawyers in your firm who are defending nursing home cases sing a different tune.

Maxey’s assertion that nursing homes can pay any judgment directly contradicts what lawyers in Maxey’s law firm tell plaintiff lawyers when negotiating settlements. When defending cases alleging negligence by nursing homes, lawyers in Maxey’s firm tell plaintiff lawyers that uninsured nursing homes will declare bankruptcy if a large judgment is obtained in the case.

The typical nursing home that Maxey’s firm defends operates as a limited liability company (LLC). A different company owns the building and certificate of need for the nursing home. The LLC operating the nursing home has little or no assets because it is a shell corporation with the profits drained off to the owners.

This organizational structure is designed to insulate nursing home operators from liability for abuse and neglect. Nursing home defense lawyers use it as a hammer to drive down the settlement value of cases. The organizational structure has made the bankruptcy threat appear very real to lawyers representing the victims of nursing home neglect.

But now John Maxey says it’s a bluff. This is a big deal.

For prior posts on the issue of Mississippi’s uninsured nursing homes, click here.

Everyone knows that slots are a sucker’s play with the highest house edge in the casino. Not satisfied with crushing a player’s wallet, however, Tunica slot machines are now physically attacking patrons.

The Sun-Herald reported today on Randy Perkins’ personal injury lawsuit against Tunica Roadhouse Corporation. Here is Mr. Perkins’ Complaint, filed in the U.S. District Court for the Northern District of Mississippi.

The Complaint alleges that plaintiff sat down to play the slots “when suddenly, and without warning, the heavy metal front of the slot machine fell onto the Plaintiff.” The machine hit Plaintiff’s arm and knocked him off his stool, which caused a back injury. Plaintiff seeks $750,000 in damages.

Jonathan Barrett and Patrick Barrett with the Barrett law firm represent the plaintiff.

My Take:

I wonder if this case could settle for 100,000? Player’s points—-not dollars.

Being the cynic that I am, my first thought was that the slot machine gave the plaintiff a monetary thrashing; plaintiff got frustrated; plaintiff physically attacked the slot machine. Plaintiff’s attack caused the front of the machine to fall on the plaintiff.

I mean who hasn’t wanted to beat the crap out of a slot or video poker machine? Right?

If that is how it happened, the slot machine will probably claim self-defense.

Of course, it’s more likely that some other patron beat the crap out of the slot machine before the plaintiff began playing the machine. Regardless of who attacked the slot, I bet this slot machine had taken a lot of people’s money and had it coming.

Please Lord, let there be video. And let it make it to You Tube.

A federal investigator’s libel lawsuit based on statements in a book on Scruggs-gate is over before it got out of the starting gate. NMC reported over the weekend on the dismissal of Hal Neilson’s libel lawsuit against Tom Dawson and Alan Lange based on statements that appeared in their book Kings of Tort. Here is NMC’s December post about the lawsuit.

It looks like Neilson threw in the towel. Neilson never served the defendants with process and did not respond to Lange and Dawson’s motion to dismiss.

The rules of civil procedure give a plaintiff 4 months (120 days) to serve a defendant with process. In most cases, it is not hard to serve process. You’ve got to believe that Lange and Dawson would be easy to get served. They make public appearances all the time and their residences would be easy for a process server to find.

Tim’s comment on NMC theorizes:

This was not a serious attempt at litigation but filed to stop the SOL [statute of limitations] from running then think about it. I would bet good $$ that Christie filed to stop SOL and told Hal to get another attorney if he wished to pursue and he either did not or could not. Agree with Tom let sleeping dogs lie.

That makes sense.

To me, Neilson’s appearance in Kings of Tort was not significant. It’s been a while since I read the book; I don’t remember what it said about Neilson.

In any event, this was a big win for Lange and Dawson.

A few weeks ago the Wall Street Journal Law Blog wrote about jury reforms adopted by the State of Michigan. Here is the article. Here is a link to the actual reforms that the Michigan Supreme Court adopted.

Key provisions in the Michigan reforms include:

• before evidence is presented the trial judge shall provide the jury with pretrial instructions including on the law applicable to the case.
• the court shall provide each juror with a copy of the instructions.
• at the court’s discretion each party may offer interim commentary during trial.
• deposition summaries can be read during trial with a copy given to the jury.
• the court may permit jurors to ask questions of witnesses. Jurors write their questions down and the judge asks them.
• jurors are permitted to discuss the evidence before deliberations when all jurors are present.
• jurors may ask questions about final instructions.

My Take:

I love it. The Mississippi Supreme Court should adopt something like this.

Some things about how we present cases to juries is bizarre. For example, think about a big products liability trial.

The court seats a jury and gives them no instructions about what the plaintiff must prove in order to meet their burden of proof. The parties may present evidence for two or three weeks (or longer). At the end of the trial, the trial judge reads jury instructions. And reads jury instructions. And reads jury instructions. I have personally seen jury instructions read for 50 minutes. I’ve talked to lawyers who have seen instructions read for even longer.

The court then gives one copy of the instructions for the use of the entire jury and sends them to the jury room to pick a winner.

I don’t doubt that this was the best way to instruct juries in the 1800’s. But methods of instructing jurors has not kept up with advances in technology and more complex trials.

Tell the jury what the substantive law is before they hear evidence. Give each juror a copy of the instuctions. Decide on the front-end substantive instructions at the pre-trial conference. That would make pre-trial conferences more productive and focus the case–the point of the pre-trial order.

We should also do a better job of explaining to jurors on the front end what it means to decide the case based only on the evidence at trial and the Court’s instructions. On this point, we tell jurors; we do not explain. We should explain to them that it’s not appropriate for jurors to start talking in deliberations about what happened when they rolled their vehicle on I-55 or how hurt their Aunt Ethel was when she got rear-ended by an 18–wheeler.

We should also instruct jurors to notify the bailiff or judge if other jurors interject other matters or commentary into deliberations. Tell them they have to report it–don’t make it optional.

Let jurors submit questions for witnesses. I understand they may ask questions that can’t be answered. Tell them that. At least that way they aren’t thinking we are idiots for not providing them with information that they want. Plus, I bet juror questions would often have the added benefit of scaring one side or the other into settlement.

I even like the interim commentary during trial idea. It’s one thing to wait for closing to tie it all together when closing is this afternoon or tomorrow. It’s another thing when closing is in 2 weeks. Interim commentary with a time limitation of a couple of minutes would be tremendously helpful in communicating to the jury the significance of testimony and other evidence without delaying the proceeding.

I know there will be lawyers who disagree with me on this. My response is go watch a bunch of focus group deliberations. Then tell me that we should not be looking for ways to improve jury deliberations.

We could be doing a better job of instructing juries. And we should be.

The mistrial in the Roger Clemens perjury trial last week was stunning. The cause of the mistrial was that the prosecution played video tape of Congressional testimony that contained hearsay and had already been ruled inadmissible. Here is a link to a Washington Post article discussing how it happened.

By all accounts the prosecutors are honest and simply threw this one behind the batter. So how does it happen? Easy. The prosecutors did not actually review the edited video excerpts before trial:

A review of transcripts and interviews with people knowledgeable about what happened reveals that federal prosecutors did not intentionally introduce barred evidence to the jury. Despite years of experience, two well-respected prosecutors had made a basic mistake and not carefully reviewed the videos they planned to show jurors.

Am I surprised that this could happen with experienced prosecutors? No. I am surprised that it happened on the second day of trial.

This is the type of mistake that I would expect to see more near the end of a long trial when the lawyers are running on fumes. But on day 2? That’s surprising. But not shocking.

Preparing for trial is all consuming. Much of the work is tedious and mundane—no matter how exciting the case is. Tasks like reviewing the edited video clips can keep getting pushed to the back burner while a lawyer works on other more pressing matters.

Sometimes these tasks end up not getting done. After all, the person who made the edits was careful and would have double checked, right? Wrong.

Remember Vincent Bugliosi’s 75% rule from his book Outrage about the OJ Simpson trial. Bugliosi’s theory is that 75% of workers are not good at their job—no matter what their job is. If you stop and think about it, he has a point.

The “don’t sweat the small stuff” theory is great. But during trial there is no small stuff.

It’s Bar Convention week in Mississippi. The Summer School for Lawyers CLE runs today through Wednesday and the Annual Meeting runs Wednesday through Saturday. Both are at the Sandestin Resort. There are 250 lawyers registered for the CLE and 400 lawyers and judges registered for the Annual Meeting.

The Bar Convention is a great opportunity for lawyers and judges to visit in a relaxed atmosphere. Everyone always has a smile on their face.

For lawyers and judges back in Mississippi, Bar Convention week is often one of the quietest weeks of the year. With so many judges and lawyers in Florida, there is usually a noticeable decline in the number scheduled trials, hearings and depositions this week. So for anyone looking to sneak out to the golf course or fishing hole for an afternoon, this wouldn’t be a bad week to do it.

Yesterday the Mississippi Supreme Court stayed further proceedings in the Union Carbide v. Brown case pending a determination of Union Carbide’s motion to recuse Judge Eddie Bowen. Here is the Supreme Court’s Order. Here is my post where I wrote about the recusal motion.

The Clarion-Ledger article confuses me and makes me suspect that I am missing a piece of the puzzle. I get this part of the article:

Union Carbide Corp. had asked Bowen of Raleigh to vacate the jury award and to step aside from any further action in the case because he didn’t divulge that his father had filed two similar asbestos cases.

Bowen’s inaction resulted in Union Carbide petitioning the Supreme Court to force him off the case.

The judge’s bias and prejudice against Union Carbide and Chevron Phillips, the other party being sued, were evidenced in his rulings, comments in front of the jury, and his coaching of Brown’s attorneys in questioning witnesses, according to Union Carbide’s motion.

Here is where the article loses me:

Georgia Pacific filed court papers last month saying Bowen, who was presiding over three Mississippi lawsuits involving the company, had sued one of the company’s subsidiaries in Jasper County.

The company said the lawsuit filed by Tullos on behalf of Bowen and others is materially similar to the pending lawsuits assigned to Bowen.

What is this talking about? How did the article go from Union Carbide to Georgia Pacific? Is this talking about the same case or a related case? Did Judge Bowen not recuse himself from the case even though he had sued the defendant? I can’t tell.

Someone help me out here.