A famous, some would say infamous, Plaintiff’s trial lawyer speaks about Karl Rove, “buying” judges, and the plight of lawyers who represent injured people

When Lee Pacchia from Mimesis wrote to let me know that he had interviewed the highly controversial and very successful Plaintiff’s trial lawyer Fred Levin, and that the interview was available on You Tube, I hit play and was fascinated. I thought of Vince Powers, who is a fine Plaintiff’s trial lawyer here in Lincoln. Vince has spoken eloquently about many of the things that Mr. Levin talks about in his interview. In short, I thought that readers of this blog would be interested in Mr. Levin’s point of view.

So, with the caveat that you should judge for yourself, here is the interview:

RGK

 

17 responses

  1. Judge:
    Mr. Levin was not what I expected as he was quite articulate and sane (I thought he was going to be some wild eyed loon screaming about the evils of big corporations). Like this guy or hate him, he made some interesting points with, arguably, the most important being the problems associated with judges being elected. In a perfect world, judges would be appointed rather than turned into half-assed politicians seeking to get elected to the bench. And, perhaps more importantly, the appellate judges that Mr. Levin references as having been “bought” could not be “purchased” in an appointive system. The Framers were clearly onto something when they invented lifetime tenure for federal judges.
    Robert

  2. Robert,

    I also could see why a jury would like him.

    As for electing judges, I am glad that Nebraska follows the Missouri plan. Judges are appointed by the Governor after appearing before a nonpartisan judicial nominating body. If I remember correctly, the body sends names to the Governor, at least one from each party, after hearing from the lawyers who want to become a judge. The body is headed by one of our fine Supreme Court Justices. The Governor then selects the judge, and the judge runs for “reelection” every so often. But in that election there is no opposing candidate. The public simply votes “yes” or “no” on retention. In my view, that system produces good judges without overt politicking either in their selection or retention. It is not perfect, but it is certainly better than the putting judges on a partisan ballot.

    All the best.

    RGK

  3. I am fortunate to live and practice as a plaintiffs’ lawyer in Massachusetts, where we have appointed judges who serve until age 70. (I voted against forced retirement. One reason was my belief that Justice Holmes did his best work when he was over 80.) Our system is not perfect, but I cannot conceive of how an elected judiciary could be better. I had a friend who was a Supreme Court judge in New York (as you may know, despite the grandiloquent title, that’s the trial court). Joe was coming up for election, and I asked him, “How do your run for judge? Do you go out and tell people, ‘I’m more honest than the other guy?'” The interview in your post touched on that. I have great faith in democracy, but the average voter is no better at telling one qualified candidate for judge from another than he or she is at telling one qualified chemist from another.

    While retention elections are better than contested ones for judicial seats, they are still subject to distortions. A few years ago, if memory serves, three justices of the Iowa Supreme Court were defeated in retention elections after declaring a ban on same-sex marriage unconstitutional. Their successors have come up with some truly mystifying decisions, including the one where a dental assistant who was fired because her boss said she was too attractive (to him, not patients) was held not to have stated a case for sex discrimination. (The plaintiff’s lawyer is a friend of mine, so I’m biased, but really!) And we know what history has said about that decision on same-sex marriages.

    Now, as a plaintiffs’ lawyer, I sometimes say that I’m like the gunslinger in the old western: You hate me until you need me. And when you need me, your really need me.

  4. Jon,

    Your comments largely reflect my views.

    By the way, I used to think 70 was terribly old. Just about ready to turn 68, guess what I think now? As an aside, if anyone finds my drool cup, I need it back.

    All the best.

    RGK

  5. The Mo. plan has been subject to some abuse as in the Cal. purge of Bird Court, the Iowa Court over same sex marriage, or your NE judge, where huge sums of money have been thrown into no vote campaign, though recent Tenn. case where R governor opposed effort to remove a group of D judges is reassuring. Number of states that have direct and often partisan direct elections is frightening, particularly now that results may be promised as in Wis where judge ran as supporter of govenor’s program. Estimates I have seen run $1,000,000 for cost of contested state supreme court race. While probably right SCOTUS has not helped with elections are elections approach to judicial elections. While complaints about the politics of the federal judiciary are common, the real risk is a loss of trust in state courts. When fund raising becomes a full time job for judges, Martin Manton and the Okla. S Ct in early 60s may look like the good old days, and I doubt that situation is made that much better by countervailing contribution from ATLA and Unions.
    I am venting but worried.

  6. Not one from each party, political balance is in committee membership, idea is to let politics operate only after competence is assure. Judge do not blame misremembering on age, here at the home we are older than you and our drool cups are watched over with due care.

  7. America has the best judges money has bought. All the Missouri Plan does is put the corruption back into the smoke-filled rooms where it belongs.

    In a Missouri Plan state, a handful of people pick judges. The scam is a simple one: they pick three candidates, of which two are relatively unqualified. They vet the one they want, ensuring that s/he will rule in a particular way in cases they care about. The governor picks the one they want because he basically has no choice.

    No matter how poorly the judge performs, s/he is retained. Retention rates are about 99% across the board. No one has a interest in getting a judge fired sufficient to mount a serious campaign, and few are competent to judge on the basis of no knowledge to speak of. It is far better to have motivated people pick the judges’ opinions apart, so the judge who wants to be re-elected will exercise more care in his opinions.

    The Missouri Plan is an engraved invitation to corruption. Compare the judicial blotters of those states with it and those without. In the MP states, judicial discipline is essentially nonexistent, because all of the (non-sex) scandals are hushed up. In states where judges are elected, the blotters are entertaining, as Michigan’s is probably the best. One judge referred to himself as God. Another alcoholic judge insisted that he “wasn’t drunk” when he plowed his SUV into a convenience store. One got busted smoking doobies at a Rolling Stones concert. Another (quite married) judge pulled a Larry Craig, propositioning a cop at Metro Airport. And of course, you heard about Judge McCree.

    And don’t even get me started on the transparent farce of federal judicial self-discipline.

    Do you honestly think that a single federal appellate judge could get re-elected, once the people learn that s/he spends less than five minutes deciding an appeal? Judge Arnold said he “felt dirty” when he did that; the rest of us conclude that he and his colleagues ARE dirty when they do things like that. We could hire a random number generator and get results more consonant with due process.

    Judge Posner is right: the kingdom of the law has shrunk to routine cases. Tell me who put the judge on the bench, and I can tell how s/he will rule. The rule of law is but a minor inconvenience.

    The last President who elevated judges on merit was Poppy Bush. It won’t happen again.

    It doesn’t matter how you pick judges. What matters is your ability to hold him or her accountable once the judge ascends to the bench. In England, a litigant could file suit to remove a judge from the bench, which is why English judges are so professional and circumspect. Here, the only thing holding a judge back is a conscience, and people in power tend to be notoriously devoid of one (Lord Acton).

  8. Perfesser – I profess no expertise in this area, other than 34+ years of trying (civil) lawsuits to juries and to the court in two state’s courts and their associated federal courts. I’ve even gone through a judicial selection process under the Missouri Plan (I was not selected – probably over-qualified for the position – HA!). Your views are extremely cynical and in my humble opinion you are overly broad in your condemnation of judges in general. I shall simply say I will agree to disagree. Yes, our system ain’t perfect (as your anecdotal examples display), but it works pretty damn well for most people most of the time. I shall now crawl back under my rock and sulk.

  9. If one wanted to draw comparisons with England, legal aid would be what I would point to, though current government is cutting back on civil legal aid though not on the criminal side. Most people are not well served by our expensive system outside personal injury area. Thrilled when I got to be too old to be sent to inferior criminal court and criminal system in general is nothing to brag about. Perfesser.s strange fixation on appellate decisions overlooks real problems. That some judges are corrupt or stupid or drink too much even in Mich. would do little more than support an argument for original sin.
    If Perfesser is that good at handicapping judicial outcomes maybe a career in Vegas looms ahead.

  10. MOK,

    Please don’t “crawl back under [your] rock and sulk.” Your experience is too important not to share.

    All the best.

    RGK

  11. If you are an ambulance-chaser, you’ll never see it. Juries decide the facts, and the law is so well-settled that the judge is Jefferson’s “mere machine.”

    Where it matters, Levin is absolutely right.

    I won’t go as far as the Perfesser, but I’ve seen states where they do it right and others where they don’t. But yes, I would agree with the basic thesis: the Missouri Plan is not an improvement.

  12. Perfesser, having served on a number of the Committees which pass on nominees to the Governor in Nebraska I can assure you that you are incorrect about the Missouri plan. Lay members are vocal and have great insight and an equal vote, 2 from each party appointed by the gov, and 2 lawyers from each party elected by lawyers in the district. ( a committee I am on now has a non partisan as he out polled a party person) the lawyers want qualified persons going forward, since the judge will be ruling on our cases.

    When you know that person can make very important decisions about your future clients, you focus on whether the lawyer has the temperment and judgment for public service. Politics does not play a part. Almost always I am voting for a person of the other political party to advance given that our present gov is a repub, almost all applicants have been repubs,

    All I want in a judge is someone who wakes up every morning, looks in the mirror and says “I am so lucky to have this great job, not Nebraska is lucky to have me as a judge”

  13. Fred Levin interview for all of its pessimism does leave me optimistic. There are law students and young lawyers who won’t care about all of the bad things going on, but will realize that there are fewer trial lawyers so they will have an easier path than their contemporaries who foolishly buy into the sky is falling rhetoric. Ultimately, if you can try a lawsuit, you will have a great career. And watching Levin you could tell he would do it all again, starting now in today’s climate. The reward is from the difference you make for your client, the money is a byproduct. It’s all good,

  14. Vince,

    Agreed.

    Making millions may no longer be in the cards, but a wonderful life can still be derived from helping others through the practice of law. You know better than most the truth of the preceding sentence.

    All the best.

    RGK

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