May 3, 2010

Is Judge Alvin K. Hellerstein too empathetic about the 9/11 lawsuits?

The NYT channels criticisms of a federal judge who has involved himself in judging the fairness and adequacy of settlements in non-class action lawsuits. (In a class action, the judge is required to determine that a setttlement "is fair, reasonable, and adequate.")

The NYT article portrays the 76-year-old as having lost his bearings:
The struggle over control of the settlement has underscored two different, but not necessarily contradictory views of the judge: the compassionate jurist driven by a sense of social responsibility and with a wealth of experience with victims’ suffering, and the aggressive judge unwilling to cede ground on cases he has shepherded for years...
“This is history for him,” said Arthur Miller, a professor at New York University School of Law who specializes in federal procedure. “This is an awesome responsibility. He wants to be the person who brought peace to this entire situation. He would not be human if he didn’t feel a personal interest in this.”...

Donald A. Migliori, a lawyer for survivors in airline-related cases whose settlement amounts were reduced, said that such intervention was unusual in a non-class-action suit. “It’s a very frustrating thing for lawyers,” he said. “He’s guided by a concept of fairness that’s not in the law.”...

... John Feal, who works as an advocate for the 9/11 workers through his FealGood Foundation, counters that Judge Hellerstein himself has emerged as a ground zero hero.

“The judge is now like Elvis in the 9/11 community,” he said. “For years these guys have been neglected, and now there’s someone who cares.”

8 comments:

AllenS said...

Sounds like he's more like Santa Clause than Elvis.

richard said...

Maybe A "wise latina" is needed.

paul a'barge said...

This one is my favorite:
“It’s a very frustrating thing for lawyers,” he said. “He’s guided by a concept of fairness that’s not in the law.”

Lawyers. Where would we be without them?

Probably at the Gates of Eden.

Cedarford said...

Amazing how many "ground zero heroes" are eagerly seeking to enrich themselves on the taxpayer's teat via lawsuits.

Pick a 9/11 "hero" and chances are they have collected plenty, have lawsuits pending for various maladies claimed were caused by their hero-hood. And ask them who their lawyer or literary/inspirational booking agent is.

City workers especially.

An ironworker union member/engineer I know who was at Ground Zero said many of the city workers were talking scams and full early pensions back in Oct 2001.

Flexo said...

The vast majority of claimants should be grateful to receive anything because anything that they do receive is entirely a gratiuty, and not something that is owed to them. The airlines, in particular, are NOT liable for anything.

The only parties, aside from Al Qaida, who are liable here are the builders of the Towers who used materials that are now causing health problems to the responders.

Richard Dolan said...

The settlement is conditioned on the Court's entry of a "case management order" in the form annexed to the settlement. That order in turn is a very detailed directive. I am not aware of any rule that requires a judge to enter such an order, even less a rule requiring the judge to enter the order exactly in the form drafted by the attorneys for the parties.

Having conditioned their settlement on the court's entry of such an order, I don't think the parties can complain that the judge refused to do so because he deemed the substance of the settlement unfair or unreasonable. In form, the "case management order" is not a judicial determination that the substance of the settlement is fair and reasonable, but it does require the court to order various procedures and post-settlement arrangements that would themselves only be fair and reasonable if the substance of the settlement itself met that standard.

This is not a case, like US v. IBM, where a judge is trying to block the Rule 41 dismissal of a case. In IBM, Judge Edelstein was ordered (by writ of mandamus) to stop all hearings, etc., aimed at undoing the Rule 41 stip ending that case. But the reason was that Rule 41 made the dismissal automatic on the filing of the stipulation and required no judicial action. This settlement is the opposite, and is effective by its terms only if the court takes further action.

The larger point raised by this mass tort cases is whether there are any limitations on the parties' freedom to settle on any terms they deem best. Mass tort litigation is similar in some respects to class actions, but does not necessarily involve a class per so, as this case didn't. Settlements of class actions require judicial approval because they can bind absent class members who had no idea that their rights were being litigated, particularly if they are opt-out classes. Plaintiffs here want to analogize the case to a simple settlement between consenting parties, none of whom is a minor or otherwise incompetent to act for themselves. Mass tort litigation doesn't fit comfortably within that paradigm either.

I've known Judge Hellerstein for many years, having appeared before him since he became a judge and litigated cases against him when he was in private practice. He is as fair a judge as you will ever find. Absent a specific statutory directive, I doubt very much if the judge would accept the notion that the law does not embody "a concept of fairness" or that the law requires him to enter orders that assist in carrying out a settlement he deems unfair.

cokaygne said...

Thank you, Richard Dolan, for your illustration of why people hate F___ing lawyers.

Matthew said...

I realize I'm about 7 months to late here, but I ran across cokayge's comment, and it really got under my skin. I am constantly amazed at how much people resent lawyers -- often blaming lawyers for the fact that the law is complicated.

The truth is that much more often than people would like to admit, it is life that is complicated, and the law merely reflects that complication.

So instead of attacking lawyers, take a step back and look at all of the different -- and almost always conflicting -- public and private interests implicated in almost every dispute. And when doing so, always remember that one of the most important interests for everyone is predicatbility of application of rules: to make a point that even a cursory review of history would make abundantly clear, the law is only good law if it can and is consistently applied to everyone all the time. Coming up with general rules that can be applied predictably to a host of different situations is incredibly difficult -- and even if we get those rules their necessary generality will require inherent ambiguities that leave room for argument.

I guess the bottom line is: before you attack lawyers, why not try to understand the origins and development of particular laws (often you will find that there are decades, if not generations of brilliant minds shaping the current rule) and then judge what different people say about the law first on the merits of how that meshes with the history of the law and the problems the current law is designed to address.