Trial By TV/Blog, RI Lead Paint & Other Legal Issues - Interview with Walter K. Olson

Trial by tv/blog, re-cooking the statutes of limitation and the slow wheels of justice -- these are among the issues Walter K. Olson is going to cover in this exclusive interview.

I "met" Mr. Olson online when retrieving material at the website for the Manhattan Institute.  The Manhattan Institute is the think tank which helped Rudy Giuliani turn New York around.  Mr. Olson has been a senior fellow at the Manhattan Institute as well as a voice in many of the controversies about the legal system in general and actual laws.  He appears regularly on cable such as CNN and is a must-read in THE WALL STREET JOURNAL and THE NEW YORK TIMES.

In addition, Walter Olson has published provocative lines of thought in three widely acclaimed books "The Litigation Explosion," "The Excuse Factory," and "The Rule of Lawyers." He posts daily on Overlawyered.com and on PointOfLaw.com.  The WASHINGTON POST calls him an "intellectual guru of tort reform."

Jane Genova:

In America, tuning in to court room drama, both real and fiction, has become the new national pastime.  And this fascination crosses all classes.  Why has the complex, tedious unfolding of a case in court become so hot?

Walter Olson:

Actually, Everyman's and the media's -- tv, print and online -- fascination with the courtroom isn't exactly new.

In the late 19th century, attending trials in person was a form of intellectual stimulation and, yes, entertainment and the popular press would devote endless columns reprinting testimony from sensational murder and divorce cases.  Both Everyman and the media enjoy the drama and sensation involved in trials.  This interest has, as you indicate, become very "hot" again in the late 20th and early 21st century.

Jane Genova:

Is this focus on the courtroom a good or bad thing?

Walter Olson:

Some of each.

First the negatives.  As I discuss in the chapter "Trial Lawyer TV" in my book "The Rule of Lawyers," players in major trials now regularly engineer publicity damaging to the other side.  In high-profile cases such as the coming Enron one involving Ken Lay and Jeff Skilling, we could see lawyers and witnesses calculating everything from their language to their physical appearance, with an eye to how it plays in the media, whether consciously or not.  The presence of media simply changes everything.

And as technology has made more media available, the changes are greater.  No one needs an MA in media studies to understand the power of media to influence what takes place in a trial and how.  For instance, the live blogging from trials, as you are doing now from the Rhode Island lead paint trial, is another game-changer.

A second possible negative consequence is that one side may not be as skilled or intuitive as the other in media presentation.  That creates a new type of handicap in court cases, especially if a jury's or judge's awareness that "the world is watching" begins influencing the outcome.  You might visually recall how the OJ defense had a better grasp of theatrics than the prosecution.

In terms of the positives, trials provide Everyman and the media with a user-friendly education about the complexities of law.  Before "Court TV," few laypeople knew what a sidebar conference was or much about the rules of evidence.  It's also useful for a society to have an ongoing conversation about the issues raised in a trial. The conversation wouldn't be as informed, intense and widespread had trials, such as Vioxx and fictional ones presented on "Boston Legal," not entered our living rooms and blogs.

Jane Genova:

Your site Overlawyered.com is covering the landmark Rhode Island lead paint trial.  Although this trial is about lead pigments in the first half of the 20th century and isn't exactly "sexy" like OJ or Enron, it's certainly important.  Can you comment on its significance?

Walter Olson:

The Rhode Island lead paint trial -- which should really be called the "lead pigment" trial -- is significant and riveting on a number of levels.

One, it represents an extreme example of trying to reach back in time and identify business practices that were lawful and standard then and then imposing on those times retroactively legal principles and corporate social responsibility expectations developed recently.

If the state wins in this case, this sort of reaching back will be validated and we can expect it to become more commonplace.  Many other industries will rightly feel insecure and wonder if lawyers will try to make them the next lead paint.  That would inject uncertainty into the economy and be a definite negative for investors.  You can read more about that issue in my essay in REASON as well as "The Rule of Lawyers."

On the other hand, if the defense is victorious in this trial - the first trial ended in a hung jury - it will tend to put a "chill" on such retroactive litigation.

Secondly, this particular trial exemplifies the emerging alliance between state attorney generals and private injury lawyers paid on a contingency basis.  As I have discussed at PointOfLaw.com, the state attorney generals hire the lawyers to represent the states, or, very often, the personal injury lawyers dream up the litigation and "hire" the AGs.  The private attorneys sweeten this alliance with political favors and so on.  The latter, evidence shows, is what happened in the tobacco litigation as well as the Rh ode Island lead pigment case.

Both trends erode the credibility and respect for law in America.

Jane Genova:

In some circles the institution of trial by jury is perceived as sacred.  In others, it's seen as taking a lot of time and is unpredictable in its outcomes: members of the jury don not have the expertise in complex matters such as off-balance sheet accounting or intellectual property law and may not be competent to make important legal decisions affecting them.  What's your take?

Walter Olson:

First of all, it's important to realize that the percentage of lawsuits which actually are decided by a jury keeps falling.  Both sides want to avoid "rolling the dice" in a jury trial.  What happens is that the sides settle, often on the eve of the trial; or after a jury has been selected in voir dire proceedings; or after the trial has proceeded for days/weeks of evidence-airing but before the jury returns a verdict.  In the latter cases, members of the jury who are sent home can easily become cynical and frustrated that they have invested so of their time (conscripted involuntarily) and yet won't have a chance to be heard.  That, too, erodes the credibility and respect for law in America.

The jury process can take less time and be less a delay on justice being rendered if there are reforms.  For instance, there should be a streamlining of jury selection, with less scope for lawyers to do elaborate screening through questionnaires and challenges.  As things now stand, there's simply no respect for the public's time.

Jane Genova:

You have been called by the WASHINGTON POST, an "intellectual guru of tort reform."  Can you share some of your insights on the way of litigation as it is practiced now and what can be done?

Walter Olson:

While I certainly favor tort reform, I warn America to be patient.  The intellectual trends which brought us our current expansion of litigation, many of which came out of the law schools, emerged as a long-term development.  Reversing them will take time.  It took us 40 years to come to this point of the litigation explosion and it will probably take us 40 to come up with apply productive, just ways of backing out.

Many get their initial interest in tort reform from reading in the media about a lawsuit with unjust or socially destructive results, or being involved themselves in such a lawsuit.  It's easy not to appreciate at first how complex this issue is and how much of it gets played out on the level of state, as opposed to federal-level reform.

What that means is that the issue of tort reform is not one issue or one that can be addressed with one statute.  Like taxes and employee relations, commercial disputes implicate a variety of different policy questions.  If those questions are to be approached in ways that make more sense than under our current system, industry has to address this on many fronts and in many ways.  Right now, generally state courts in many of the 50 states are not sympathetic to any kinds of tort reform.

Browse Walter Olson's writings at the Manhattan Institute site or at the REASON Magazine site.

Comments

[spiridon]

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[ralph simone]

leaded paint is just lying there and and being blamed for all the ills that lead poisoning could cause, where at the same place water is flowing through solid lead pipes and has been for decades. All homes built before 1930,were outfitted with lead plumbing. (not sure of exact date)I have been in a lot of them. for at least 10 years of my childhood , my family and I drank and ate food that was cooked in lead tainted water

[ralph simone]

leaded paint is just lying there and and being blamed for all the ills that lead poisoning could cause, where at the same place water in flowing through solid lead pipes and has been for decades. All homes built before 1930,were outfitted with lead plumbing. (not sure of exact date)I have been in a lot of them. for at least 10 years of my childhood , my family and I drank and ate food that was cooked in lead tainted water