Trial Lawyers Double Down for Democrats, Alex Sink

October 7, 2010/in Sunshine State News

The Democratic Party fashions itself as a party of the people. In Florida, those people include plenty of big-time trial lawyers.

Nearly $1 of every $10 contributed to the party over the past year has come from attorneys. Many of the largest donations are from large firms specializing in personal-injury litigation.

All told, lawyers accounted for $1,714,385 of the $18,659,293 in contributions listed by the Florida Democratic Party since the beginning of 2009. During that period, 384 separate law-firm contributions were reported by the FDP.

Labor unions, as usual, were the biggest donors to the Democratic Party, giving $2,240,368, but trial lawyers exceed that figure when their direct contributions to Democratic gubernatorial candidate Alex Sink are included.

As of Sept. 29, attorneys’ contributions to Sink’s war chest totaled $1,431,618 — far more than she received from Big Labor or any professional group.

In effect, Florida’s lawyers are doubling down on Sink because the Democratic Party is investing heavily in her campaign in an effort to counter the personal fortune of her Republican rival, Rick Scott.

Thus far, the FDP has funded $4.2 million of Sink’s expenses while pitching in $9 million more for her TV ads.

Sink’s acceptance of party assistance is a 180-degree turnaround from 2006, when, as a candidate for state chief financial officer, she decried Republican opponent Tom Lee’s use of RPOF funds for TV ads on his behalf.

At the time, Sink called that “the ultimate in non-transparency.”

But Sink is eagerly taking party cash in bundles this year as she faces a media blitz from the deep-pocketed Scott.

William Large, president of the Florida Justice Reform Institute, says trial lawyers “want to ensure they have some friendly faces back in the capital, and they are willing to spend whatever it takes to make sure they have the political capital to be a powerful roadblock to any legislation that reins in litigation in our courts.”

The governor’s race, which polls say is tight, is crucial to Democrats — and to their allied attorneys. If Sink wins, a Democratic governor can wave a veto pen over the Republican Legislature.

A veto could come into play on a variety of issues near and dear to trial lawyers, including their perennial tussles over tort reform and laws governing business liability.

Another hot button is legislative and congressional redistricting, and it’s no surprise that some of the same law firms that contribute to the FDP are also big donors to the so-called FairDistricts campaign (Amendments 5 and 6 on the November ballot).

Searcy Denney Scarola Barnhart & Shipley, for example, contributed $115,000 to FairDistricts and $80,000 to the Florida Democratic Party.

Wayne Hogan, a Jacksonville trial lawyer, gave $70,000 to FairDistricts and $105,000 to the FDP.

“Gerrymandering is the single biggest obstacle to truly representative government, the greatest impediment to a properly functioning two-party system,” explains Jack Scarola, a partner with Searcy Denney.

Balancing Democratic and Republican power, Scarola says, extends to proper representation in court, where his firm is one of the state’s biggest litigators of personal injury claims.

“The rights of injured victims are a day-to-day concern,” he says. “Those rights will be far better protected if the Legislature is compelled to be responsive to the will of the majority, not controlled, as it presently is in many circumstances, by minority interests — big business, the medical establishment and banking interests.”

Barney Bishop, president of CEO of Associated Industries of Florida, said, “Democrats consistently vote with the trial lawyers — just look at their vote on joint and several liability in 2006.”

Likewise, he said it’s no coincidence the lawyers are funding both the FDP and the Amendment 5/6 campaign.

“FairDistricts puts redistricting in the hands of the courts,” contends Bishop, a former state Democratic Party executive director who also headed the trial bar’s fund-raising arm from 1983-1987.

Beyond Scarola’s high-minded ideals about “the haves and the have-nots,” contributing attorneys may pursue more overtly political agendas.

In an extreme case, influence-peddling attorney Scott Rothstein gave $200,000 to the Florida Democratic Party last year. Rothstein was subsequently sentenced to 50 years in federal court for his billion-dollar ponzi scheme, which he used to fund political donations.

The party has since returned the contribution to the estate of his defunct Fort Lauderdale law firm, Rothstein, Rosenfeldt and Adler.

“The trial bar has always been a big political contributor in Florida and nationally,” Large observes. “They have consistently poured millions into campaigns, and there’s a lot on the line for them, particularly on the heels of them trying to defeat [state Sen.] John Thrasher. They didn’t make any friends with their antics during that election.”

Rick McAllister, president and CEO of the Florida Retail Federation, calls the Democratic Party the “natural constituency” of trial lawyers.

“They hope to use their influence to get more liberal laws and regulations as it relates to their ability to bring lawsuits that most of us would consider inappropriate,” he said.

Noting that Republicans receive the lion’s share of contributions from the business community, McAllister said, “We’re very fortunate that both the House and Senate are controlled by conservatives.

“We think we’re doing the Lord’s work in helping make Florida a more business-friendly place that attracts and expands jobs,” McAllister said of the RTF and like-minded groups that favor RPOF candidates.

Meanwhile, trial lawyers’ contributions keep flowing the other way, and it’s safe to assume that many more attorney donations will roll in to FDP coffers before the party is required to file its next campaign finance report on Oct. 28.

Florida Democratic Party spokesman Eric Jotkoff declined to respond to Sunshine State News’ questions on the record.

Contact Kenric Ward at [email protected] or at (772) 801-5341.

McCollum’s Legal Bargain

March 29, 2010/in Sunshine State News

McCollum’s Legal Bargain

By KENRIC WARD – March 29, 2010 – 6:00pm

Attorney General Bill McCollum’s lawsuit against the federal government’s newly enacted health-care program has drawn political fire as a costly quixotic venture.

State Sen. Dan Gelber, who is running for McCollum’s job, calls the litigation “frivolous” and “destructive to the office.”

Gelber, a lawyer from Delray Beach, said he would not have brought the suit, and joins fellow Democrats from around the state in slighting its prospects for success.

But, while everyone is entitled to their political opinions and legal predictions, there’s no debating the fact that, based on cost, the McCollum lawsuit is a bargain for Floridians.

According to the $50,000 contract signed with constitutional scholar and litigator David Rivkin, Florida has retained a team of attorneys for an hourly rate comparable to that of a run-of-the-mill paralegal.

“It’s absurd to complain about the expense,” says William Large, president of the Florida Justice Reform Institute. “The state is getting one of the best and brightest legal minds for $19 an hour.”

Large calculates that rate by dividing the $50,000 retainer’s hourly rate of $250 by the 13 participating states.

“Mr. McCollum is well within his rights, acting as a good fiscal steward of the state,” Large says.

Large saw the other side of the coin a decade ago, when Florida paid $3.4 billion in contingency fees to attorneys to prosecute Big Tobacco. In the settlement that resulted, some lawyers raked in fees of as much as $112,000 an hour.

McCollum is supporting legislation — House Bill 437 and Senate Bill 712 — that would cap contingency fees and require an open, cost-benefit vetting process before state agencies can employ outside legal counsel on contingency.

Critics of McCollum’s legal challenge have suggested the attorney general is contradicting himself by retaining outside counsel to fight the feds. Yet, monetarily speaking, there’s no comparison.

While Rivkin’s usual rate is $950 per hour, the constitutional scholar has been retained by the 13 states at $250 per hour. It is expected that the states will share the costs equally — which comes out to a rate of $19.23 per hour.

If additional states join the suit, as some expect, the hourly charges to each participant would go even lower.

The contract is capped at $50,000 in fees and is not based on contingency fees.

“What’s everyone so scared about?” Large asks. “This is a constitutional matter that deserves to be debated.”

Indeed, even Gelber declines to commit to withdrawing from the suit if he is elected in November.

“It depends on where the case stands,” he says.

McCollum is undaunted by his opponents and unapologetic about his legal gambit.

“This unconstitutional (health-care) law would ultimately cost the state of Florida billions of dollars to be implemented,” he says.

As with all cases litigated by the Office of the Attorney General, civil defense attorneys and civil appeals attorneys track their time for the purposes of accounting for costs, assigning resources and recouping expenses in the event of successful outcomes.

The AG’s office has set up a case-specific tracking system for those attorneys to report time spent on this suit for the purposes of eventually recouping expenses from the federal government.

—
Contact Kenric Ward at [email protected] or (772) 801-5341.

http://sunshinestatenews.com/story/mccollums-legal-bargain

Trial Attorneys in Crosshairs

February 26, 2010/in Sunshine State News

Trial Attorneys in Crosshairs

By KENRIC WARD
February 25, 2010 – 6:00pm

Attorney General Bill McCollum’s first order of legislative business is to go after attorneys — and he’s hoping the third time will be a charm.

It’s one in a series of tort-reform initiatives that will pit business interests against the trial bar at the 2010 session.

Topping McCollum’s list of priorities is a bill that would limit the Attorney General’s Office from entering into contracts with private attorneys to represent the state.

Senate Bill 712 is sponsored by state Sen. John Thrasher, R-St. Augustine. Thrasher, a former House speaker and newly ensconced chairman of the Republican Party of Florida, has been a longtime advocate of tort reform.

SB 712 and companion House Bill 437 by Rep. Eric Eisnaugle, R-Orlando, aim to curb what many lawmakers consider to be excesses by privatizing the state’s legal work via contingency fees.

In the high-stakes fight against Big Tobacco, for example, Florida paid private litigators up to $120,000 an hour to sue cigarette companies.

Lack of Transparency

Though the Attorney General’s Office has the authority to use outside counsel through contingency-fee agreements, critics argue that such arrangements lack control and transparency.

“Compensation comes out of the state’s coffers without first going through an appropriations process and is subtracted from judgments awarded to the state for damages incurred by the people of Florida,” says William Large, president of the Tallahassee-based Florida Justice Reform Institute.

“Allowing private attorneys to sue on behalf of the state’s attorney general shifts the power into the hands of private attorneys, who are then given a pecuniary interest in the outcome of the legislation.”

Noting that the state shelled out a whopping $3.4 billion in attorney fees in the battle against Big Tobacco, Large says checks and balances are required.

McCollum’s reform package would:

Require the attorney general to make a written determination that representation by a private attorney is both cost-effective and in the public interest.

Mandate that private legal services engaged on a contingency basis be competitively procured, if feasible.

Impose an aggregate contingency of 25 percent of any recovery up to $10 million; plus 20 percent of the next $5 million in recoveries; plus 15 percent of the next $5 million in recoveries; plus 10 percent of the next $5 million in recoveries; plus 5 percent of any portion of the recovery that exceeds $25 million.

Set a $50 million cap on contingency fees.

Order that payment of contingency fees be posted on the attorney general’s website within 15 days and remain posted for at least 180 days.

McCollum, the leading Republican gubernatorial candidate, has not signed any contingency agreements during his term as attorney general, said spokeswoman Sandi Copes. His previous efforts at reform have been beaten back by trial lawyers in the Legislature, Copes said.

“Appetite” for Reform

Thrasher has also taken heat from the trial bar, which spent $1 million in an unsuccessful effort to derail his bid for Senate.

Noting that pieces of McCollum’s package passed the Florida House of Representatives last year, Majority Leader Adam Hasner, R-Delray Beach, said, “There is a significant appetite in the Florida House of Representatives to work with General McCollum in passing these reforms.”

McCollum’s plan already has won the backing of fellow State Board of Administration members Gov. Charlie Crist (a former AG) and Chief Financial Officer Alex Sink, a Democrat. The board has agreed to implement his proposed contingency reforms in its legal dealings.

McCollum’s initiative has the enthusiastic backing of the National Federation of Independent Business-Florida, which calls skyrocketing legal expenses a double-whammy for the private sector and the taxpayers.

By way of comparison, the NFIB noted that the 2003 Legislature enacted reforms that limited attorneys’ fees in workers’ compensation cases. The frequency of claims and lawsuits plummeted, culminating in a 60 percent decrease in workers’ comp premiums over five years.

In October 2008, however, the Florida Supreme Court lifted the cap on attorneys’ fees, effectively returning the state to the pre-2003 workers’ compensation system. Then, in 2009, Legislature reinstated the attorney fee provision cap and workers’ comp rates declined again.

Lawyers Vow Fight

Trial lawyers have vowed to fight that attorney fee provision again — and expect them to fight McCollum’s measure, too.

John Morgan, a national personal-injury attorney who heads the firm of Morgan & Morgan, with offices throughout the state, calls McCollum’s legislation “a political stunt” and a “b——t bill” that will be opposed again this year.

“It’s red meat for the right-wing constituency, but you don’t need this legislation. The attorney general can negotiate these terms right now. If he can’t, God help us all,” Morgan said.

The legislative battle promises to widen with the introduction of other tort-reform measures introduced this session.

Sen. Andy Gardiner, R-Orlando, is sponsoring SB 1224, which would make it tougher to win judgments against businesses in so called slip-and-fall cases. The senate bill, along with HB 689, would require injured persons to prove that a business establishment had actual knowledge of a dangerous condition and should have taken action to remedy it.

The bills seek to ease the effect of cases like Owens v. Publix (2001), in which the Florida Supreme Court ruled that the mere existence of a substance or object on the floor “creates a rebuttable presumption that the premise’s owner did not maintain the premises in a reasonably safe condition.”

Logical Standard Sought

“Reinserting a logical standard of constructive notice will help protect Florida businesses from abusive and unduly expensive litigation, without jeopardizing the meritorious claims of patrons,” FJRI’s Large said.

Morgan disagrees. “This will simply result in a bunch of dirty stores with unsafe conditions.”

“But legislators will vote for it because Winn-Dixie and Wal-Mart are big contributors,” he added.

Philip DeBerard, a Stuart-based attorney, suggests that the bills are an over-reaction by companies that cut corners.

“We’re not talking about random spills at stores, but about refrigeration units that leak onto the floor day after day. Companies need to think about customer safety.”

Sens. Garrett Richter, R-Naples, and Mike Fasano, R-New Port Richey, are sponsoring SB 744, which wouldredefine the terms “negligence action” and “products liability action” and require courts to consider the fault of all parties to an accident when apportioning damages in a product-liability case alleging additional or enhanced injuries.

Along with HB 433, SB 744 would “ensure that in all product-liability cases, the jury has the opportunity to consider the fault of those who caused the accident, as well as continuing to consider the fault of the manufacturer for any alleged defect which cause greater injuries,” Large said.

“Otherwise, juries will continue to decide cases in a vacuum, with the fault of the truly responsible party hidden from view, allowing plaintiff’s attorneys to once again unfairly target the business community for their own personal gain,” he added.

DeBerard discounted the need for this legislation, saying, “You can’t hide guilty parties. It all comes out of the judgment.”

http://sunshinestatenews.com/story/trial-attorneys-crosshairs

McCollum’s Legal Bargain

Trial Attorneys in Crosshairs

Florida Justice Reform Institute

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