Killer Show

by John Barylick

  For generations, American plaintiffs’ attorneys stayed afloat on a mix of difficult cases and straightforward personal injury actions — auto accidents, slip-and-falls, and the like. Reputations were earned, and new cases garnered, the hard way, through trial results over many years. Lawyers’ advertising was strictly limited by state ethical rules. Then, in 1977, the competitive landscape changed forever. The United States Supreme Court, in Bates v. State Bar of Arizona, invalidated state restrictions on lawyers’ advertising, declaring that such ads were protected commercial speech within the ambit of the First Amendment. And we have all been the poorer since.

  The Supreme Court, in its 5–4 Bates decision, considered, but dismissed, arguments that unfettered attorney advertising would tarnish the profession or be inherently misleading (to the extent that ads suggest superior results if one hires a particular advertiser). If only the high court could have seen today’s ads, perhaps its majority would have sided with dissenting justices Powell and Stewart, who predicted that the decision would threaten the character of what had been a “learned profession.” What no one could have predicted, however, is how attorney advertising would, by its debasement of the profession, taint jury pools against plaintiffs and fuel the insurance industry’s legislative efforts to limit victims’ access to the courts. The irony of lawyer advertising is that, while insurers may publicly cluck over it, they well know (and adore) that, because many jurors view such ads with disdain, it lessens the likelihood, and amount, of plaintiffs’ verdicts in all cases — a boon for defendants.

  Insomniacs and stay-at-homes can now kick back in front of their TVS at any hour of the day or night and see actors portraying insurance adjusters becoming apoplectic upon learning that the firm of Fisher, Cuttbaite & Troll is “on the case.” One punch of the remote, and viewers can watch crash-test dummies endorsing another personal injury attorney. Yet a third channel features a lawyer posing in front of a cheesy baseball park background. “Hire the Heavy Hitter,” he urges, with no apparent embarrassment. At the other end of the dial, the actor who portrayed super-agent Napoleon Solo in TV’S The Man from U.N.C.L.E. sternly instructs viewers to “tell the insurance company YOU . . . MEAN . . . BUSINESS.”

  Thus, the awe and majesty of the law, circa 2012.

  An advertising race to the bottom followed on the heels of the Bates decision, run by lawyers who learned fast that unabashed hucksterism could divert many of the easily settled personal injury cases to them. As a result, in the decades since 1977 the bread-and-butter personal injury cases have shifted from their prior distribution across the plaintiffs’ bar (where they enabled attorneys to take on other, riskier cases), to heavy-advertising settlement attorneys (not to be confused with actual trial lawyers) who blanket the airwaves with “Have a crash? I’ll get you cash!” appeals.

  At the same time that “advertising attorneys” were scooping more and more simple cases, developments in the substantive law of torts were increasing the complexity and expense of the more difficult ones. These changes tended to shift the economic burden of catastrophic injuries to defendants like sellers of defective products, who public policy suggests should bear such burdens. However, developing and proving legal theories in such cases is no simple matter.

  An example of this evolution was the expansion of strict liability for defective products. Under this legal doctrine, the manufacturer or seller of a product that is proven to be defective (by way of design, manufacture, or even inadequate warnings) may be held liable for injuries caused by the product, without showing that the manufacturer was negligent. In this way, the externalities of defective products get “internalized” into the products’ cost, thereby providing a strong economic incentive for businesses to make safer products. Proving a complex product liability case, however, can be an enormously expensive and risky endeavor. It is generally not the province of the advertisers.

  By the time of the Station fire, the plaintiffs’ bar in Rhode Island had undergone the same stratification seen in all other states. There existed, on the one hand, a core of true plaintiffs’ trial lawyers willing and able to take on complex product and medical liability cases on a contingent-fee basis — and, on the other, a very different, heavy-advertising group of personal injury lawyers for whom getting the case was the Holy Grail — even if it meant later referring it to an actual trial lawyer for a piece of the fee.

  Many advertising “personal injury attorneys” are either referral networks or settlement mills. The referral networks enter contracts with attorneys to advertise for them, fronting a name or toll-free number for practitioners embarrassed by first-person hucksterism. The settlement mills essentially troll for garden-variety accident cases that can be easily settled (often at a discount) with insurance adjusters. Any cases requiring actual litigation (or, God forbid, trial) are referred to other law firms for part of their contingent fee.

  Just twelve days after the fire, one attorney of the advertising ilk rushed to publicly file suit on behalf of a few fire victims — against those defendants who brief perusal of newpaper articles would suggest were culpable — probably figuring that reports of the filings would garner yet more victim/clients. That lawsuit named the town of West Warwick, Fire Marshal Denis Larocque’s employer, as its first defendant. Good for starters. However, its draftsman neglected to comply with a basic statutory requirement in Rhode Island that the town first be given forty days’ Notice of Presentment of each victim’s claim before filing suit.

  Another case, filed by a heavy advertiser just six days later on behalf of a single victim’s family, failed to sue any product manufacturers (just the local foam distributor, American Foam), one of the few groups of potentially culpable, deep-pocket defendants. Yet a third law firm, savvy in Internet marketing, registered the domain name “www.stationfire.com” before the club’s embers had cooled. When exposed by the press two days later, it shut down its client-trolling website.

  By contrast, the Rhode Island Trial Lawyers Association (RITLA), to which I belonged, urged restraint and deliberation by its members, rather than a headlong rush to the courthouse with hastily drafted pleadings. RITLA members, for the most part, well understood that a serious effort to hold persons financially responsible for the Station tragedy would be an enormously complex and protracted undertaking. It would require financial and legal resources beyond the capabilities of any single attorney or firm. And whoever represented the plaintiffs would have to somehow overcome one central, inescapable fact: the most obviously culpable defendants — the band and club owners — had little or no money. They were, in attorney parlance, “judgment-proof.”

  If the fire’s victims were to be compensated at all for their terrible injuries, it would take an enormous effort by their attorneys to successfully press cutting-edge theories of liability against deeper-pocketed, but more peripherally liable, defendants. It would not be the stuff of late-night TV ads. Rather, it would be expensive, all-consuming, and bet-the-firm risky for anyone undertaking it seriously.

  In order to establish the liability of defendants other than the band and club owners, evidence would have to be marshaled concerning others’ contributions to the fire’s intensity and inescapability. The club’s wreckage would need to be examined, legally relevant artifacts gathered, and details of the building’s design and construction established with certainty. Unlike modern buildings such as Las Vegas’s MGM Grand Hotel or San Juan’s Dupont Plaza Hotel, both of which were scenes of tragic fires, The Station was a rundown structure, which had been modified by successive tenants, on the cheap, over decades. There were no architectural plans, no materials schedules, and no reliable record, beyond amateur photographs and video, of its interior. “Reconstructing” The Station from on-site measurements, archival photographs, and fire artifacts would take a team of experts months, cost hundreds of thousands of dollars — and offer no guarantee that a single legally useful fact would be gleaned.

  Eight law firms, including my own, teamed up to form
a Plaintiffs’ Steering Committee (PSC), pooling money, expertise, and manpower, to responsibly investigate possible theories of liability before filing a single lawsuit. Appointed by the state Superior Court, the PSC, assisted by a team of forensic experts, gathered over seven hundred artifacts at the fire site, storing them in a specially modified evidence warehouse. (One of the most expensive warehouse features was a complete fire sprinkler system. Ironically, charred evidence from the tragedy enjoyed more protection from fire than did any Station patron.) Likely defendants in the civil litigation, such as foam manufacturers, agreed to jointly control and pay for the evidence warehouse, access to which would remain under court supervision for the duration of the litigation.

  Over-inclusiveness was the watchword for evidence-gathering by our experts. It is very difficult to ascertain, while artifacts are being gathered, which, if any, may prove useful in later legal proceedings. Usually, only a few are important; however, it’s nearly impossible to tell which ones, until years into the case. Because the Station site had already been picked over by state and federal investigators, as well as by Professor Gould’s Forensic Archaeology Recovery team, there was no guarantee that anything useful would come of the steering committee’s extensive (and expensive) evidence gathering. But, as with all other aspects of the litigation, we were “in for a penny, in for a pound.” No responsible attorney could skip a step in due diligence. The stakes were simply too high, and the penalty for an omission potentially ruinous.

  It was clear from the outset that the obviously culpable defendants would have insufficient assets to even begin compensating victims in one hundred death cases and hundreds of personal injury cases arising from the fire. Thus, the pressure on plaintiffs’ counsel to identify all other possible defendants was enormous. Moreover, the task had to be accomplished in less than three years — because the statute of limitations would expire three years from the date of the fire. Persons or companies not sued before then could never be sued, even if it were later discovered that they bore some responsibility for the tragedy. There are no do-overs when it comes to the statute of limitations (SOL). Miss the SOL, and your client is truly S.O.L.

  Many laymen would come to criticize the large number of defendants named in our final pleadings; however, few of those critics appreciated our personal peril as attorneys handling this catastrophic case if an important potential defendant were not sued before the statute of limitations expired. In short, we would get sued. The attorneys on our steering committee carried between $1 million and $10 million of malpractice insurance. Given the magnitude of the damages in the Station fire, the combined malpractice insurance of all eight member firms would have been insufficient to protect each of us from personal financial ruin if a viable defendant were not sued before the statute ran. For this reason, the years immediately following the fire were a time of extreme urgency to identify all possible defendants.

  At least, my colleagues and I on the PSC were feeling the urgency. Combined, we represented over 90 percent of the fire victims and their families. The remaining plaintiffs were represented by attorneys who chose not to contribute to the work, and massive expense, that the steering committee was putting into the case. By the time the litigation concluded, seven years after the fire, members of the PSC would invest almost $2 million in evidence gathering, evidence preservation, and expert fees — with no assurance of its eventual repayment. This was on top of tens of thousands of attorney and paralegal hours, in state, federal, probate, and bankruptcy proceedings throughout the region and country.

  The steering committee lawyers came to refer to their nonparticipating colleagues as “the Free Riders.” Beyond their hastily filed (and woefully defective) initial complaints, the Free Riders filed few, if any, substantive pleadings in the ensuing years of litigation. Instead, they filed “adoptions” of every motion and legal memorandum filed by us. (An adoption is the legal equivalent of saying, “What he said.”) In at least two comical instances, the same Free Rider filed adoptions of steering committee legal memoranda several days before the latter were filed in court — either a ringing vote of confidence in our work, or a means to an earlier tee-time.

  As a result of the PSC’S deliberate approach, we did not file suit against any defendant until seventeen months after the fire. Our first “master complaint,” filed in state Superior Court, named forty-six separate defendants, including not only the club owners and Great White, but polyurethane foam manufacturers, concert promoters, and insurance companies who had inspected the club (and missed the flammable foam) in years past.

  Within all states there are both state courts and federal courts. In some cases, their jurisdictions overlap, and a plaintiff may choose to file suit in either state or federal court. In Rhode Island, as in many states, the state court system is generally viewed as a more favorable forum for plaintiffs than is the federal court system. Not surprisingly, then, all plaintiffs in the Station fire initially filed their suits in state court.

  However, the plaintiffs’ choice of forum is not always the last word. A legal device called “removal,” designed to prevent home-field favoritism against defendants who reside in other states, allows an out-of-state defendant to remove his case from the state court and put it in the federal court, but only if the federal court would have had jurisdiction over the controversy in the first place.

  Ordinarily, a case like the Station fire would not qualify for federal court jurisdiction, because several of the defendants, and most of the plaintiffs, were Rhode Island citizens; hence, complete “diversity of citizenship” (the most common basis for federal jurisdiction) would be lacking. However, a coincidence of history, and lawmaking, would link the tragic events of 9/11 with the Station fire, and determine with finality what court would decide the fire victims’ claims.

  In the wake of the terrorist attacks of September 11, 2001, a Republican-controlled U.S. Congress dearly wanted to keep civil litigation arising from mass catastrophes out of state courts, which business-interest lobbyists saw as too plaintiff friendly. Instead, it wanted to steer such cases into the federal system, which Congress regarded as more judicially conservative in matters of civil liability. So, on November 2, 2002, it enacted the Multiparty, Multiforum Trial Jurisdiction Act of 2002, which conferred federal court jurisdiction on cases arising from a single accident in which “at least 75 natural persons have died” (regardless of whether the parties have complete diversity of citizenship). The law became effective on January 31, 2003, just twenty-one days before the Station fire. It would see its first application in the civil suits arising from the fire.

  Two Station fire defendants, the town of West Warwick and Anheuser-Busch Inc., pounced on the new jurisdictional law, using it as a basis to remove all fire cases from Rhode Island state court to federal court, where random selection resulted in assignment of Senior Judge Ronald L. Lagueux to the consolidated Station fire cases. Judge Lagueux was seventy-two years old at the time, and a thirty-six-year veteran of both the state and federal judicial systems. A flinty jurist known for striking terror into the hearts of young lawyers appearing before him, Lagueux had a well-earned reputation as the most conservative judge on any bench in Rhode Island. It was widely believed that he would subject novel theories of liability against peripheral defendants to rigorous scrutiny, and cast several aside as a result of pretrial motions to dismiss, or for summary judgment.

  The tone was set early on. Judge Lagueux invited counsel in all the consolidated cases to a conference held on October 26, 2004, in the massive, wood-paneled Jury Assembly Room of the federal courthouse in Providence. There, he gave a preview of how he saw the cases playing out. Plaintiffs’ counsel were as dejected as defense counsel were buoyed when they heard Judge Lagueux announce, “Discovery is not going forward in this case until I dispose of [the many motions to dismiss]. You’ll have time to work this out. Maybe some of you won’t be in the case.”

  “Hopefully, not too many of us,” mused the sixty or so defense a
ttorneys present. Their cumulative billing rate in the room was about two hundred dollars.

  Per minute.

  The defense attorney for Clear Channel Broadcasting was actually heard by the court stenographer to quip, “I like the way you’re working so far.”

  It appeared that, by a combination of removal to federal court under the new jurisdictional statute, and simple luck of the judicial draw, the Station fire victims, already unfortunate, had been dealt another weak, and possibly losing, hand.

  Even without the case’s removal to federal court, we on the PSC were having a hard enough time. Plaintiffs’ attorneys are natural competitors for the most lucrative cases. We’re used to working alone, making all the strategic decisions on a case, pouring all necessary resources into it and either reaping its reward (and its attendant publicity), or suffering its defeat, alone. As a result, plaintiffs’ lawyers are constitutionally ill-suited to litigation by committee.

  There are good reasons why farmers don’t use thoroughbred racehorses for wagon teams. High-strung, pricy, and temperamental, they’d all want to pull their own way and have others clean up after them. It’s the same way with plaintiffs’ attorneys trying to work together on the same case — only with more ego and less horse sense.

  At initial hearings before state judges in the Station case, one of our group would routinely arrive early, so that he could grab the “first chair” at counsel table and give the impression he was sole lead counsel. Others from the committee would rush to feed sound bites to reporters after each proceeding.

  On May 27, 2003, a state Superior Court judge, Alice Gibney, appointed two attorneys as “Co-Chairs of the Plaintiffs’ Steering Committee.” She appointed a third attorney “Vice-Chair.” Among the three firms, 179 fire victims were represented. After weeks of counterproductive competition between the two co-chairs, they struck an agreement that would prove critical to the successful functioning of the committee over the next seven years: both would jointly represent each other’s clients, dividing all contingent fees evenly between them; both would eschew public comment on the case for its duration; and neither would seek appointment to any representative position regarding the plaintiffs’ cases without permission of the other. For the most part, the agreement would be honored.