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RECORDER CONTINUES PATTERN OF TARGETING PLAINTIFF LAWYERS I am growing increasingly concerned over the editorial position of your publication. Over the course of many years, The Recorder seems to take joy in perpetuating and publishing unfounded lawyer jokes which are almost always against lawyers who represent plaintiffs in contingency cases. For example, going back to 1996 you supported the 200 series of initiatives regarding the initiative process, which included caps on contingency attorneys fees and no-fault insurance. Your position on the caps on contingency fees represented solely an attack on lawyers who represent plaintiffs and had nothing whatsoever to do with whether hourly rates and premiums on hourly rates charged by lawyers to represent defendants in a variety of litigation, including consumer protection, employment discrimination and environmental hazards/pollution cases, were in any way justified. In fact, your position in favor of significant caps on contingent fees reflected a significant lack of appreciation for the legal marketplace and whether injured plaintiffs and economically harmed consumers could ever secure effective legal representation in the absence of reasonable contingent fees, which are designed to compensate attorneys for the risk of never prevailing in a certain number of cases. Based on your editorial position during that campaign, I wrote to you and cancelled my firm’s subscription to The Recorder. In 1999, I decided to re-subscribe to The Recorder, although I have been wary about the paper’s penchant for characterizing plaintiffs’ lawyers as filing frivolous lawsuits against sympathetic defendants, corporate and otherwise, for so-called “technical” violations of the law to enrich themselves and not to protect the interests of consumers throughout California. You took a position against plaintiffs’ lawyers regarding Proposition 30, an initiative put on the California ballot in 2000 designed to ensure that a law passed by the Legislature and signed by the governor, and which protected Californians from bad faith insurance practices by third parties, would never take effect. That initiative was funded primarily by insurers based outside of California and, for some, outside the United States, and was funded by more than $70 million. We thought seriously about again canceling the subscription when it took the position it did with respect to Proposition 30. The most recent example of this position evidenced itself in a case that my firm and I handled against Bank of America and which resulted in both a verdict and trial court judgment in 2004 of nearly $1.6 billion to more than 1.1 million elderly and disabled California customers of the bank, which had seized their exempt Social Security and other public benefits in violation of California law. On appeal, in November 2006, an intermediate California appellate court reversed that judgment in its entirety, concluding that the California law relied upon by the jury and the trial court was not as they had understood and interpreted it. We have since filed a petition for review in late December 2006 which will be decided by the California Supreme Court in late February of this year. The caricature which appeared in the paper on Dec. 1, 2006, depicted me holding a check made payable to me personally in the amount of $1 billion, and the cartoonist had sketched in catalogs held by me of Ferraris in one hand and French castles in the other. I view the cartoon, as did many others, not as legitimate or fair comment but as a further visual statement of The Recorder’s editorial position that lawyers like me file lawsuits which are frivolous and which are intended to result in our personal enrichment. Unlike the lawyers from many firms, including Morrison & Foerster; O’Melveny & Myers; [and] Weintraub Genshlea Chediak; who were retained by Bank of America beginning in August 1998, when the case was filed, and who have received compensation on a monthly basis from the bank to defend its position in the case, my firm and Tom Brandi’s firm � my co-counsel in the case � have received nothing and have invested millions of dollars in lawyers’ time and hundreds of thousands of dollars in out-of-pocket costs, not only to prepare and try the case in 2004, but to handle the case on appeal. We did so because we believe that the bank’s practice of imposing fees on the elderly and disabled violates the established public policy of California and deprives them of the very subsistence that the law seeks to protect. Many people who know me were amused by the suggestion in the caricature that I am enamored of luxurious Ferraris. It is no small irony that I recently sold my 1996 Infiniti with 121,000 miles, the car I bought before my 10-year-old daughter was born. I urge you in the future to consider carefully whether your dashed-off political comments are justified by the facts of the litigation or lawsuit about which you feel the need to comment. In the case involving Bank of America, you would do well to read the trial court’s lengthy statement of decision, as well as the briefing on appeal to fulfill your responsibility to comment fairly on pending litigation with the knowledge of both the claims in the case and the facts presented at trial.

James C. Sturdevant San Francisco

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