The downside of empathy.

Merck was hit by a $235 million dollar judgment in the first Vioxx case tried to a jury verdict. While Texas has caps and that judgment will be reduced on appeal to roughly $25 million, Merck's stock price took a big hit because this was only the first of over 4,000 similar lawsuits in the pipeline. Moreover, Merck hand-picked this case to set the tone for future litigation because it was perceived as winnable, in light of the defects in the plaintiff's evidence on causation, as well as the relatively minimal compensatory damages involved--the decedent was already 59 years old, and of the working class. This excerpt features selective quotations by the wsj, but it makes a very strong case for why our products liability tort system fails to maximize economic utility by institutionalizing jury trial procedures that are susceptible to massively aberrant results:

"Merck argued that Vioxx couldn't have caused Mr. Ernst's death because, according to his death certificate, he died of an arrhythmia or irregular heartbeat, not a heart attack. While scientific evidence suggests Vioxx can promote blood clots leading to a heart attack, no data have linked the drug with arrhythmias.

Jurors who voted against Merck said much of the science sailed right over their heads. 'Whenever Merck was up there, it was like wah, wah, wah,' said juror John Ostrom, imitating the sounds Charlie Brown's teacher makes in the television cartoon. 'We didn't know what the heck they were talking about.'"

I hate to be an elitist, but this is just wrong. Causation is a required element of every personal injury lawsuit; I could pound a man's skull flat with a baseball bat, but if he was already dead before I laid my hands on him, I'm not legally responsible for his death. It's not that complicated. Moving on to one of the more substantive potential reasons for the jury's verdict:

"One juror, Ms. Blas, had written in her questionnaire that she loves the Oprah Winfrey show and tapes it. 'This jury believes they're going to get on Oprah,' Ms. Blue told Mr. Lanier. 'They only get on Oprah if they vote for the plaintiff.'

Two days later, facing the jury with his final argument, Mr. Lanier ... hammered home the point that they would be sending a message that would be heard widely. 'I can't promise Oprah,' he said, but 'there are going to be a lot of people who'll want to know how you had the courage to do it.'

As he made the Oprah reference, Mr. Lanier looked at Ms. Blas in the eye. She says she broke out into laughter and liked the lawyer's attention to her. 'That told me he read those profiles and tried to assess each and every one of us,' Ms. Blas said."

Pathetic. I'm not advocating that every drug which makes it through the FDA approval process should have an absolute defense to products liability. I also think that Merck was ill-advised to pimp out Vioxx with a full-on marketing blitz if it had, in fact, conducted internal studies that raised issues as to product safety. There may well be a lawsuit out there where $235 million in damages is legally justifiable. But it wasn't this one. This was a shitty plaintiff's case, and one that Merck most certainly would have won had the case been tried to a judge, rather than a jury.

Sweet Caroline.

From a personal standpoint, I love my secretary. I really do. She’s a fantastic lady—sweet, hard-working, and congenial towards everyone. Most significantly, she’s never taken issue with respecting my authority. If I were her, having a boss half my age would be a hard pill to swallow. Having said all of these things, she’s really starting to bug me.

First off, she fucks stuff up. I’m not your ideal stone-caster: at best, I can be acceptably thorough; at worst, excessively sloppy. So attention to the finest detail is not my strong suit. But in addition to that, I routinely have to fix shit that, for whatever reason, my secretary doesn’t do properly. I have a hard enough time reining in my own incompetence, having to audit her work product should not be first on my list of things to do. For instance, today she typed up one of my letters on someone else’s letterhead. I almost missed it. Had it gone out, the client would have learned—correctly, as it were—that I’m a doofus.

Second, she’s very sensitive. Not sensitive in a bad way, meaning that she isn’t easily embittered by real or imagined slights. Rather, sensitive in that she really, really just wants to do a good job. I am a fairly mellow person and usually non-plussed by screw-ups. But I was pissed with her yesterday, the day that my federal appeals brief was due. She farmed out my table of contents and table of legal authorities to word-processing. I fault myself for not seeing the oncoming shit-storm, word-processing is a collection of nit-wits. Their final product was pretty crappy and my secretary, who isn’t really down with the automatic TOC/TOA generating software, couldn’t fix it. I eventually hijacked someone else’s assistant and she got it done. Throughout this whole process, my secretary felt chastened because she cares about what she does, but had to watch someone else finish her job off. Today she came into my office and tried to discuss. I was not particularly interested in hashing things out with her because: (1) it’s done with and I had no hard feelings; and (2) I lacked the patience to hold her hand, or in the alternative, the assertiveness to take the opposite route and tell her how I had really felt.

Third, she doesn’t knock on my door before coming into my office; this is inconvenient at times, particularly when I’m having phone sex with strangers.

Thanks, we'll be in touch.

I did on-campus interviews at my alma mater the other day. The level of incompetence on display was striking, and brought back memories of my own piss-poor interviewee skills. One applicant refused to turn over his transcript, but offered to do so if he was extended a call-back interview. Another freely admitted to being interested in four different cities, although Chicago had definitely made that list. Personal details are nice, but medical conditions are not; it shouldn’t be all that difficult to draw the distinction. The process was more grueling than I expected. Sixteen candidates in, I made it through the first ten minutes of an interview without saying anything at all. Once I realized this, I mumbled a few “Why is that?” and “Based on what?” interjections to keep things flowing.

I found that what I was most impressed with were people that were unlike myself. My partner took the contrary approach. She is brunette and decidedly non-standard, college jocks and blondies did not fare well with her.

What I found myself telling candidates over and over is that an aura of confidence will always do wonders. No one knows how to do shit when they step off the elevator on their first day as an associate. But with time, you’ll reach an epiphany: “Hey. I’m a marginally useful cog in the machine. Neat.” I try to tell that to myself when I fuck shit up. On the other hand, I also have a tendency to pleasure myself with thoughts of how well-regarded I am in my workplace, so screwing the pooch nicely evens things out. You’re only as good as your last review. It’s tough to strike a balance between acting like you shit gold—which is important and professionally useful—and actually buying into it.

"Equal protection of the laws."

This is a joke:

"A federal judge today sentenced Scott D. Sullivan, who acknowledged his leading role in Worldcom's $11 billion accounting fraud, to five years in prison - a fifth of what sentencing guidelines suggested and a striking example of the benefits of working with government prosecutors."

This, despite the judge's conclusion that Sullivan had indeed been the "architect" of the largest accounting fraud in U.S. history. Under those same federal sentencing guidelines, a five-year sentence is "suggested" for dealing between four and five grams of crack. I have no idea what the precise street value of 5 grams of crack is, but I can confidently say that it's a fraction--and an exceedingly small one at that--of the $11 billion in shareholder losses occasioned by Sullivan's malfeasance. Hilarious. Ebbers, Sullivan's boss, went to trial and got hit with 25 years.

Knowing this, we would all be well-advised to get down on our knees post-haste and suck the cock of every federal prosecutor that comes knocking on our door, should we get caught with our hands in an $11 billion cookie-jar. Don't hesitate to sell out your boss, that's why he makes the big bucks. Oh. And don't deal crack, stick with the powder cocaine (or at least large-scale corporate fraud).

The Sullivan case brought to mind the three consecutive twenty-year sentences that a rapist once received for what most would consider one rape--he got hit with multiple counts for switching positions and ejaculating more than once. So, moral of the story part three: if you absolutely need to rape someone, stick with what works best for you.

I accept that this is in very poor taste, and considered deleting it. But to thine own self be true.

Troxel v. Granville. Or, "Come Softly To Me."

Marie Claire made law review. She gets to be on the masthead of an academic journal, something that is much cooler than it sounds. I, on the other hand, now have to weather the psychological torment of having been surpassed by my little man. Much like the episode of Family Guy where Peter learns that Chris has a donkey dick and spends the remainder of the show compensating by way of passive-aggression. I kid, I kid.

But Claire’s new academic distinction did bring me back to my law school days, and why I never did a journal even though I attended a school with 4 of them (meaning that if you wanted to do it, you could do it). Just to clarify: law review is better than all the other journals, so although there are enough of them out there for most to participate should they so choose, participation in the lesser journals doesn’t make you as pimp as Claire. For instance, U of I’s Journal of Elder Law—what the fuck is that?—is nothing to toot your horn about. But anyway. After finishing my last exam of 1L year, I diligently picked up my journal competition packet. Our submissions were due only six days after finals. We were asked to write a note about how the freedom of association guaranteed by the Constitution impacts grandparent visitation rights. There was a pending Supreme Court decision on the issue, and our assignment was to gather the precedent that the Court was currently considering, and infer what it would do. I think. This was over five years ago and my memory is not good.

Completing my submission would not have been too difficult, but my initial review of the materials confirmed that the assignment would be tedious. Most things in life are tedious to me; that is the cross you must bear if you’re lazy. I decided to put it off until the weekend before it was due. That weekend happened to be Dillo Day and, me being me, I decided on Dillo Day itself that I could party during the day, and slap some shit together through the night. I don’t remember what the break down was in terms of grades vs. writing competition, but I recall feeling confident that any old piece of shit submission would do, because my first semester grades had been good (this was a faulty assumption; I later learned I had bombed second semester). After a long night of drinking, I tried, in vain, to write something serviceable from 2:30 AM to 9:00 AM. I am a fucking idiot. You don’t draft a journal competition submission over the course of one night; not even a steaming pile of shit submission that you’d normally be embarrassed to call your own. On the other hand, I did get drunk with Rahul for the first time ever. That night, I also learned that: (1) Guinness is not exactly the beer of champions when served in a plastic cup; (2) plex lounges have locks; and (3) the first liter of a $12 Vendange cab tastes like shit, but the second does not.

It was not worth it. I now have to deal with the ignominy of having the equivalent of “LAZY” tattooed to my forehead, a method which conveys the point almost as directly as a resume with good grades and no journal. So the moral of the story is Claire’s a hard-working little fucker. And if you don’t do a journal, you’ll be LAME (like me).