June 7th, 2010

Linkworthy (New York Edition)

Big Tobacco sues Big Apple. Can New York City force stores to put gruesome anti-tobacco posters up?

Will the BP oil spill hit New York? A computer simulation shows how the oil sweeps up the east coast (fast!) after it passes around the Florida Keys. And if it ruins my beach vacation this summer, can I sue? 

New York City pays $10M to a man framed for murder. Will they make a movie about how it happened?

A New York judge gives tips on  how to write a brief. If you want to lose;

New York law blogger Niki Black is tired of spam from lawyers. And now she is naming names. Welcome to the club;

And super New York law blogger Scott Greenfield does something rare. He discusses himself. And a psycho cyber stalker;

Did curvaceous New York banker  Debrahlee Lorenzana get fired for being too sexy? Or do you think, as I do, that her lawsuit over it is merely a publicity ploy for a modeling career?

I thought I was pretty good when I proposed to my wife on New Year’s Eve on a boat in the Galapogos after a day snorkeling with sea lions. But this proposal in Madison Square Park puts all others to shame. Epic. Hey, marriage has plenty of legal angles to it;

Bat Masterson. Federal Marshal.  Southern District of New York. A New York Times story. Go ahead, click that link, you know you want to;

But that Bat Masterson article reminds of of another one — the time Masterson met future Supreme Court Justice Benjamin Cardozo in a courtroom showdown, with Cardozo as defense counsel when Masterson sued for libel after an article said he: 

“made his reputation by shooting drunken Mexicans and Indians in the back.”

From the New York based Above the Law: Lawyers are taught to fight. But choking a prosector?

And a rare reversal of a mult-million dollar verdict in the Bronx. Based on the improper dismissal of a juror.

 

June 4th, 2010

When the Mainstream Media Swipes the Blogger’s Goods

I’ve been mulling this over for a few days, undecided if I should write about how the mainstream media swiped an original story I published last week. And then I saw that someone else just went down the same road.

Danny Sullivan wrote How The Mainstream Media Stole Our News Story Without Credit. And in it he told the story of a ludicrous lawsuit of a woman who sued Google after she was hit by a car after following Google directions. The media loves these types of lawsuits — those outliers of the courthouse that make people scratch their heads and wonder at the stupidity of mankind.  And I usually watch them due to the deleterious effect that they have on the legitimate suits in the courthouse that never see the papers. 

In my story, I wrote about the lawyers representing the 10,000 September 11 responders that had been sickened, and who had brought suit. A massive settlement — as much as $657M — had been scuttled in March by Judge Alvin Hellerstein who complained about the legal fees that plaintiffs counsel would get. He wanted the lawyers to cut their fees so that the claimants would get more. (They were to receive approximately the same as defense counsel, but only the plaintiffs who had taken the risk and put up their own money were singled out.)

There were thousands of articles written about the busted settlement, due to the extraordinary nature of September 11, the 10,000 claimants, and more than half a billion dollars at stake.

The newsworthy part was the two letters that I published early on Friday May 28th —  they were not part of the public file — that disclosed a willingness by plaintiffs’ counsel to cut their fees from 33% to 25%. While settlement negotiations are usually private, it busted out into public view when one plaintiff’s firm demanded in a letter to the court that they get their full fee. The firm apparently copied every lawyer involved, thereby insuring that some member of the press would get their hands on it.

I published the letters, both as a hard news story along with my commentary at the end. Above the Law picked it up that same day and ran it as its first item in its Morning Docket with other hard news items. That basically guaranteed wide distribution.

 The Daily News then used the material on Sunday to run a moronic editorial called Shave ‘Em Closer, about cutting the legal fees even further.  And in doing so they failed to give credit for where they got the information. This left the reader to believe the hard news part of the editorial was from their own news gathering.

Now a short rant on the substance of the editorial. Here was their justification:

Envisioning an enormous payday, the lead attorneys in the case, a firm called Worby Groner Edelman & Napoli Bern, signed up sickened 9/11 workers when few others paid any mind to their epidemic illnesses. Retainer agreements set the legal fees at 33% of any recoveries.

Missing from every part of the editorial is the $30M plaintiffs’ counsel spent out of their own pockets, and the spectacular risk of taking the suit. Essentially, if the suit failed, the lawyers would not only have wasted seven years of their lives, but faced personal and professional ruin. No one else involved in the litigation was asked to cut their fees. Here’s an idea for the News: Why not cut your prices in half? I think you charge too much. Please don’t belly-ache about your expenses and risks in running your operation. You clearly don’t care about such things.

OK, Daily News rant over, back to the main subject. The Associated Press read the Daily News editorial and then created a new story based upon it. They apparently failed to speak to the News or bothered looking for other sources for the story. They simply parroted what the News said. No cites to original sources. And once in the hands of the AP, off the story went around the world.

Is this a self-interested, petulant complaint by me? I thought it might be and was going to kill the idea of writing about it until I saw Danny Sullivan’s piece on the exact same subject. I’m obviously not alone.

What is it about the mainstream media that believes they can just swipe the stories of others and run with them without attribution?

Elsewhere:

The mainstream media has for year, moaned about websites and blogs using their stories without giving proper credit to the original source. Which makes it slightly embarrassing when the shoe is revealed to be on the other foot… [more]

Should mainstream media be held to different standards than bloggers when it comes to crediting sources? Mainstream media agencies have frequently turned their noses up at bloggers, essentially claiming that they steal and repurpose the work of their hard working journalists. While this may be true in some cases, it is hardly fair to say that this is true in general. In fact, this week, we’ve seen a clear example of the hypocrisy of this notion, because mainstream media publications are clearly just as guilty as blogs when it comes to improper crediting of sources…  [more]

…[Sullivan’s]  post on his personal blog goes into painstaking detail about the chronology of the story’s proliferation out here on the interwebs, and who linked, or failed to link, to whom…The comments on Sullivan’s post contain a spirited discussion of journalistic Netiquette, and are worth a perusal… [more]

…Not giving credit for a scoop is uncool, but it’s pretty low on the scale of journalistic sins. It is a nice shiv in the side of newspapers complaining about blogs and aggregators ripping them off…[more]

 

June 3rd, 2010

Elena Kagan In Private Practice (And Her First Amendment Experience)

I know, you’ve been sitting there on the edge of your seat waiting for this, ever since I discussed the serious lack of private practice work by Elena Kagan. Which wouldn’t be so bad except that only Justice Kennedy seems to have had any private practice experience. Basically, 98% of the legal time for Supreme Court justices has been in academia or public service.

So  Kagan’s Senate Judiciary questionairre was released, and with drool running from my mouth I searched for all that I could on her private practice — much as I did with Sonia Sotomayor when I found her little private firm, Sotomayor & Associates that had no actual associates and subsequently became  a minor issue.

And it turns out, while at the BigLaw firm of Williams & Connolly between 1989 and 1991, Kagan actually did some First Amendment work that was interesting. In fact, of the 10 “most significant litigated matters which you personally handled” that the the Senate Judiciary Committee asked her to list, five had to do with the First Amendment. And, despite being a very junior associate, she was actually given the chance to argue a couple of times in court.

[Note, Eugene Volokh has written about her First Amendment scholarship that followed the years of private practice. This post is only about the real-world experience that preceded it. A full round-up of her career, including scholarship but missing the real-world stuff, is at SCOTUSblog]

OK, here is the set-up —  you’re sitting down, right? — on page 71…

I have had private clients only during the time I was an associate at Williams & Connolly. Those clients included business entities in civil litigation, press organizations defending themselves in libel and related actions, and white- collar criminal defendants.

She goes on to write that her private work was “primarily” in federal court and that it was divided 2/3 to civil and 1/3 to criminal. She concedes having never tried a case to verdict. That wouldn’t be so bad, of course, if the high court had others that had done so for private individuals.

Now to the meat and potatoes: On pages 188-195 she is asked to “Describe the ten (10) most significant litigated matters which you personally handled, whether or not you were the attorney of record.”  As you can see below, some of this stuff is anything but interesting, which gives a bit of insight perhaps in to what happens to junior associates at BigLaw firms.

So here is Elena Kagan’s Top 10 List of private cases. The First Amendment ones can be seen below as d-h. (I’ve listed all 10, in case people find any of the other stuff interesting — two are criminal matters):

(a) Federal Realty Investment Trust v. Pacific Insurance Co., No. R-88-3658. We represented a real estate investment trust in an action against an insurer for the costs of defense associated with a prior litigation. I began work on the case in the middle of the litigation; I did some late discovery and drafted most of the pre-trial motions. On the eve of trial, Judge Norman Ramsey of the U.S. District Court for the District of Maryland ruled in favor of our position on the appropriate standard for allocating defense costs between covered and uncovered parties and claims (760 F. Supp. 533 (1991)). This ruling immediately produced a settlement favorable to our client.

(b) In re Seatrain Lines, Inc., Nos. 81 B 10311, 81 B 10916, 81 B 11059, 81 B 12345, 81 B 12525, 81 B 11845, 81 B 11004, 81 B 11512. We represented Seatrain Lines, Inc., a debtor in bankruptcy, in U.S. Bankruptcy Court in the Southern District of New York (Judge Burton Lifland presiding) in connection with an application by Chase Manhattan Bank and Milbank, Tweed, Hadley & McCloy for legal fees associated with the bankruptcy case. In response to the filing of the fee application, our client counterclaimed against Chase for the recovery of the costs of preserving and disposing of certain properties subject to Chase’s security interest. I handled some of the discovery and drafted most of the pleadings. When the court denied Chase’s motion to strike our counterclaim (and a subsequent motion for reconsideration), the parties settled on terms favorable to our client.

(c) Toyota of Florence, Inc. v. Lynch, Nos. 4-89-594-15, 4-89-595-15. We represented Southeast Toyota Distributors, Inc. in a suit brought by one of its franchisees alleging fraud, intentional interference with contract, violations of RICO, and a host of other claims. I drafted numerous pleadings in the case, including an opposition to the plaintiff’s motion to remand (granted by Judge Hamilton of the U.S. District Court for South Carolina at 713 F. Supp. 898 (1989)), as well as motions to dismiss and discovery motions (ruled on by Judge Edwin Cottingham of the Court of Common Pleas for Darlington County). I also handled some of the discovery. I left the firm prior to trial. Ultimately, a verdict for the plaintiff was dismissed on appeal.

(d) Byrd v. Randi, No. MJG-89-636. We represented defendant Montcalm Publishing Corp. in a libel action arising from an allegation that the plaintiff was in prison for child molestation. The case presented issues relating to the “libel-proof plaintiff” doctrine, the definition of a “limited purpose public figure,” and the actual malice standard. I did most of the discovery, drafted our summary judgment motion and other pleadings, and argued the summary judgment motion before the district court. After initially denying the motion, Judge Marvin Garbis of the U.S. District Court for the District of Maryland dismissed the case a few months later on a motion for reconsideration.

(e) In Re Application of News World Communications, Inc., Nos. 89-3160, 89-212. We represented the Washington Post and WRC-TV in this effort to compel release to the public of unredacted transcripts of audiotapes to be received in evidence at a criminal trial. I argued motions before Judge Charles Richey of the U.S. District Court for the District of Columbia to compel release of the transcripts and to prevent redaction. Judge Richey granted both motions, with the latter reported at 17 Media L. Rep. 1001 (1989). The Court of Appeals for the D. C. Circuit, with Judges Wald, Silberman, and Sentelle hearing argument, denied a motion to stay this order (17 Media L. Rep. 1004 (1989)).

(f) J. Odell Anders v. Newsweek, Inc., No. 90-715. We represented Newsweek, Inc. on appeal from a jury verdict in its favor in a libel action filed in the Southern District of Mississippi. The case raised questions about the actual malice standard, as well as numerous evidentiary issues. I drafted the appellate brief urging affirmance. The U.S. Court of Appeals for the Fifth Circuit held in our favor by unpublished opinion (judgment reported at 949 F.2d 1159 (1991)).

(g) Luke Records, Inc. v. Nick Navarro, No. 90-5508. We filed an amicus brief in the U.S. Court of Appeals for the Eleventh Circuit on behalf of the Recording Industry Association of America and numerous record companies, challenging the decision of the district court that a musical recording was obscene under the standard set forth by the Supreme Court in Miller v. California. I drafted the brief in the case, which stressed the difficulty of holding music obscene under prevailing constitutional law. Judge Lively, joined by Judges Anderson and Roney, reversed the district court’s decision (960 F.2d 134 (1992)).

(h) Bagbey v. National Enquirer, No. CV 89-2177. We represented the National Enquirer in this libel action brought by a person mistakenly identified in the publication as being Jimmy Swaggert’s father. I drafted all pleadings and did all discovery in the case, which began in Louisiana state court but which we removed to the U.S. District Court for the Western District of Louisiana (Judge F.A. Little, Jr.). We eventually settled the case on terms favorable to our client.

(i) Chuang v. United States, No. 89-1309. We represented Joseph Chuang, a former bank president, on his appeal from a criminal conviction for numerous counts of bank fraud. The principle issues in the case concerned the propriety of two warrantless searches of the bank, one by the Office of the Comptroller of the Currency and one by the FDIC. I drafted most sections of the brief, which argued among other matters (1) that the statute authorizing the OCC’s search failed to provide a constitutionally adequate substitute for a warrant, as required by the Supreme Court, and (2) that the FDIC’s search was invalid because it went beyond the bank premises into Chuang’s law firm offices. The Second Circuit affirmed the conviction, with Judge Timbers writing and Judges Newman and Altimari joining (897 F.2d 646 (1990)).

(j) United States v. Jarrett Woods, We represented the former head of the Western Savings Association, a failed savings and loan, in both a grand jury investigation and a number of civil suits brought against him. The Federal Home Loan Bank Board had declared the S&L insolvent and placed it in receivership after discovering various suspect real estate loans. In addition to trying to keep the civil suits at bay, we tracked the grand jury investigation of Woods closely for more than a year – interviewing each of the many people brought before the grand jury – before Woods became unable to afford the representation. Woods was subsequently indicted and convicted of numerous counts of bank fraud.

So I was all prepared to say that we were about to put on the Supreme Court another person without any real private practice experience at all. But, in fact, she has a very small amount. Nothing earth shattering for sure, but a tiny amount nonetheless.

One quirk I noticed in (h), Bagbey v. National Enquirer: She says that “We eventually settled the case on terms favorable to our client.” I wonder if there was a non-disclosure agreement regarding that settlement, and if so, if her comments about settling on “favorable” terms violated it.

Update: I could see how some Senators might review some of her First Amendment briefs, which should be publicly available in court files, to inquire as to whether she actually believed in some of the positions that she took. That could put her on the spot to either defend, or distance, herself from a position that she advocated.

Update x2 — Elsewhere:

 

May 28th, 2010

Judge in World Trade Center Litigation Says Howe & Russell Fees To Be Cut

It didn’t take long. And Kevin Russell of Howe & Russell isn’t going to be happy.

Just moments after I updated my prior post on the dispute over the legal fees for plaintiffs’ counsel in the World Trade Center Disaster Site Litigation — where appellate counsel Howe & Russell complained they shouldn’t have their fees cut the same way every other plaintiffs’ attorney is  being cut — Judge Alvin Hellerstein has responded.

Russell lost. Judge Hellerstein made clear that his comments back in March regarding a reduction in contingent fees applies to them the same as with all other plaintiffs’ lawyers. He anticipates a reduction in fees — a reduction from 33% to 25% seems to be what will happen — will “improve the benefits flowing to the plaintiffs by reason of any revised settlement agreement.”

Judge Hellerstein, of course, demands that such reduction only be on the plaintiffs side. The defense lawyers, led by $119,071,113 paid to Patton Boggs, need not make any reduction. The authority for demanding such reductions remains a mystery, given that the court is interceding into legally binding retainer contracts.

OK, here is the order, hot off the presses, and so fresh some of the recipients probably still haven’t see it in their email….

ORDER. This order responds to the letter of Howe & Russell, P.C., dated May 26, 2010, asking if my comment at the hearing of March 19, 2010, concerning contingent fees of plaintiffs’ lawyers applies to them. I intended my comment to apply to all the plaintiffs lawyers who might be sharing in contingency arrangements. I anticipate that reductions in such fees, if proposed to improve the benefits flowing to the plaintiffs by reason of any revised settlement agreement, are proposed on behalf of all lawyers and law firms expecting to share in the fees chargeable to plaintiffs or collected from plaintiffs’ recoveries. If any attorneys decline so to be governed, they will have to apply to the court for appropriate relief. Relates to 21mc100, 21mc102, 21mc103. (Signed by Judge Alvin K. Hellerstein on 5/28/10) (rjm)

I wrote this morning that the conduct of Howe & Russell in trying to distance themselves from their co-counsel was an embarressment to the profession, and that there was no logical reason for the firm to believe they would be treated differently than other plaintiffs’ firms. They took the matter on contingency, and now they live and die with that decision, the same as this end of the profession has done for generations.

Will they “apply to the court for appropriate relief”? They have threatened to do so. In his letter to the judge Russell wrote:

[I]f the Court is contemplating abrogating our contract with co-liaison counsel, we respectfully request notice of that intention so that we may be heard on the matter and take any procedural steps (such as intervention in the case) necessary to preserve our ability to appeal any such order.

We’ll see. If they do this, of course, it puts the judge in the position of having to give a formal ruling on his authority to cut any of the contracted fees.

Updated 6/10/10: Massive September 11 Case Settles (Again) — Additional $125M Added to Settlement

 

May 28th, 2010

Attorney Fee Fight Gets Ugly in World Trade Center Litigation (Plaintiffs’ Legal Fees Being Slashed; Howe & Russell Objects) — Updated x3

A furious fight over legal fees that erupted from the World Trade Center Disaster Site Litigation returned to public view yesterday. That litigation had resulted in a complex settlement with a range of  $575M to $657M for responders sickened in the aftermath of the September 11 attack. Judge Alvin Hellerstein rejected that agreement in March, however, for some 10,000 responders, claiming that the 33% legal fees that plaintiffs’ counsel was to receive was excessive.

In  an angry  letter yesterday to Judge Hellerstein, Paul Napoli of Worby, Groner, Edelman & Napoli, disclosed that the firm will voluntarily reduce its contracted legal fee from 33% to 25%, despite doing almost all of the heavy lifting on the plaintiffs side of the protracted and expensive litigation. In doing so, they asked why others were not also being asked to cut their fees.

The letter became public when it was electronically filed, in response to a letter from Kevin Russell of Howe & Russell, who had been hired as plaintiffs’ appellate counsel on issues related to defendants’ claims of immunity. [Updated: The letters, apparently, were sent to the judge but are not in the public file. They appear here for the first time.]

Howe & Russell, whose practice is geared toward Supreme Court litigation, wants to be paid in full, regardless of what happens to Napoli’s firm.

In March, Judge Hellerstein indicated in conferences that despite the “extraordinary” and “productive” work Worby, Groner,Edelman & Napoli had done in representing over 9,000 clients in this expensive and risky litigation, that the plaintiffs attorneys’ fees were nevertheless unreasonable and likely to be cut by the court. As a result of the judge’s comments in open court, the firm reported in an April 9th letter to the court that the firm was  “savaged in thousands of publications – not just in New York, but indeed throughout the country and around the world.”

Plaintiffs lead counsel, the letter states, spent over $30 million of its own money in moving forward on a case  that had been rejected by many.

Yesterday’s letter goes on to state that the firm would voluntarily cut its fee to help get the matter resolved, at great cost, but that the court wasn’t asking anyone else to do the same:

[Y]et despite this Court’s repeated references to the unique nature of the underlying facts and genesis of the plaintiff’s claims herein, not a single person or entity other than the [Plaintiffs’ Liason Counsel] and “plaintiffs’ counsel” by extension has been “asked” by this Court to cut their fees or forego any part of the compensation they contracted for before undertaking the work done in these matters.

Notwithstanding that, in an effort to have this matter settle, the firm wrote:

For the record, although this Court is likely already aware of the facts, we anticipate voluntarily reducing our attorneys’ fees at the Court’s insistence on a number of matters where we are unquestionably entitled to charge the clients for our time and efforts under New York law. In truth, so should the fees of defense counsel and every other consultant and vendor involved. Thus far, we expect that we will voluntarily forego some $85 million in attorneys’ fees if an amended [settlement agreement] is ultimately consummated. …

At the same time, this Court has neither suggested nor indeed directed that any other entity involved in this massive litigation forego any part of their contracted-for remuneration in favor of the plaintiffs.

The anger in yesterday’s letter results not just from Judge Hellerstein’s decision to cut the firm’s fee, but because no one else was asked to cut their fees, even if substantial.  According to the letter,

The financial reports of the WTC Captive Insurance Co., Inc. reveal that as of the end of September 2009, the Captive had paid out some $165,149,165.00 in defense counsel fees, including $119,071,113 paid to Patton Boggs as lead defense counsel,  $6,168,584.00 to coverage counsel and $39,909,468.00 to “other defense counsel.”

The firm has written that, if they are forced in to a fee reduction, then all others should likewise do so, including Russell, referring attorneys, and others. The firm wrote that they will ask for an order stating that:

“The reduction of said attorneys’ fees shall be borne equally among any law firms who share in said attorneys’ fees (e.g., referral attorneys, co-counsel or any other counsel legally entitled to a share of the said recovery)”.

Russell was ripped by Napoli in the letter for making the issue public, and accused him of doing so in an attempt to get others to likewise dump on Napoli’s firm. Napoli wrote:

[W]e were very dismayed that Mr. Russell felt the need to voice his concerns about the allocation of the plaintiffs’ attorneys’ fees and his individual attorneys’ fee agreement with our firm in so public a fashion rather than writing to this Court and simply copying our office.  Nonetheless, given the public outreach to this Court by Mr. Russell and the result he obviously intended, i.e., that his complaint will be joined by every other plaintiff’s attorney who was copied on his communication to this Court, we are compelled to respond in an equally public manner.

Howe and Russell was formerly Goldstein & Howe, before founding partner Tom Goldstein (founder of SCOTUSblog) moved on to Akin Gump.

Two other points before I weigh in with my opinion: While the letter indicates notice to the many people involved with the litigation via electronic notification, I couldn’t find this letter or the one from Russell on PACER. I obtained this letter from another source. If someone has the Russell letter, please share a copy and I will update this post.

Update: I now have the Kevin Russell letter. Rather than stand by his co-counsel, Russell is trying to throw them under the bus:

We are aware that your honor has expressed dissatisfaction with the contingency fee agreement co-liaison counsel negotiated with the plaintiffs, and is considering abrogating those contracts in order to ensure a greater recovery for the plaintiffs and to preserve adequate funds for future claimants. Those concerns are not implicated by our contract, which requires co- liaison counsel to pay our fees out of whatever funds they may recover….

We had not understood your honor to be contemplating abrogating the fee agreements among plaintiffs’ counsel. For example, we have had no reason to believe that the Court was considering altering the division of fees among the lawyers and law firms comprising WORBY, GRONER, EDELMAN & NAPOLI BERN, or abrogating the hourly fee agreements co-liaison counsel may have entered into with other outside lawyers to provide discrete advice or services to them.

However, we have recently been advised that our understanding may be mistaken. If that is so, and if the Court is contemplating abrogating our contract with co-liaison counsel, we respectfully request notice of that intention so that we may be heard on the matter and take any procedural steps (such as intervention in the case) necessary to preserve our ability to appeal any such order.

So there you have it. The court seeks to abrogate the contracts that Worby, Groner, Edelman & Napoli have with their clients — on what legal basis remains a mystery — but Russell thinks it shouldn’t apply to his firm.

Second, an order by Judge Hellerstein yesterday seems to indicate that a settlement may be near, as “intensive negotiations” continue, and he extended a deadline for motion practice. A copy of that order is here: Hellerstein-5/27/10-Order

My opinion: I think the court’s idea of cutting the firm’s contracted legal fee is a disgrace when no such pressure is put on others. This firm took the risk of untold thousands of hours of work with thousands of claimants and tens of millions of dollars of their own money, none of which would be recovered if the case was dismissed or they lost at trial.  They took a case that few were willing to undertake.

They don’t deserve to be cut off at the knees by the court, and in the process set a miserable precedent for future cases. It isn’t up to the court to legislate its own version of tort “reform” to discourage others from taking difficult or expensive cases in the future with the fear that their fees will suddenly be cut at the end.

If the courts decide to legislate away the contingency fee by eviscerating it, those with meritorious cases that also happen to be complex will  be unable to find counsel. We’ve seen that here in New York when the medical malpractice legal fees were slashed in the mid-80s, leading many people unable to find representation.

With respect to Howe & Russell, they should be embarrassed by their conduct. The people that hired them have unexpectedly had a gun placed to their head by a court that is dumping the contracted retainer agreements. Their fee should move in lockstep with any fee cut that the court is forcing down the throats of lead counsel.

Howe & Russell could easily see backlash from its conduct, as others become reticent to hire them. And that is the way it should be. There is no shortage, after all, of talented lawyers willing to argue cases to the Supreme Court.

If the court wants to enlarge the pot of money available to the injured claimants beyond that which the lawyers were able to recover, let it also ask the defense lawyers to cut their fees. Ask Patton Boggs and others to give back $85 million of their (guaranteed) fees. Then ask the court stenographers, special masters, mediators,  consultants, adjusters and everyone else, to give back a portion of their fees as well.

It is unreasonable, and outrageous, to ask the one firm that shouldered the risk and expense of the litigation — and miss countless family functions because the court wanted to hold the lawyers’ feet to the fire to move the case forward — to bear the brunt of lowering costs to increase the pool of money available for the claimants.

Update: The Russell letter that I now have indicates that his firm’s agreement was to get 1/2 of one percent of the legal fee. If the 1/3 fee still applied, that would result in an approximately $200M plaintiffs’ fee (leaving aside the expense issue) and a $1M fee for Howe & Russell. That works out, at $750/hr, to 1,333 hours of work to argue the immunity-related motions and appeal.

I suspect that they didn’t put in those kinds of hours, of course, but they won and are therefore entitled to be paid well. The nature of the contingency fee is that without the hope for payment, no rational attorney would undertake the risk. The lawyer lives and dies with that risk.

But there is no logical reason, if they are joined at the hip with Worby, Groner, Edelman & Napoli, that Russell should think his firm will escape taking a hit on the fee if the others are forced to do.

The Russell letter, wherein he throws his co-counsel under the bus, is truly an embarrassment to the profession.

Update #2: Just moments after I edited this piece with the letter from Russell, Judge Hellerstein has rendered an opinion, which I’ve put in a new post since this one is getting lengthy: Judge in World Trade Center Litigation Says Howe & Russell Fees To Be Cut

Update #3, 6/10/10: Massive September 11 Case Settles (Again) — Additional $125M Added to Settlement