Everyone Looks Like A Genius When The Market Goes Up!
In an interview, investor Mark Cuban discussed some advice he gave his young niece about stock market investing. First, he told her “you’ve always got to be careful and understand what you are doing.” Second, he told her “everyone is a genius in a bull market.” Why am I quoting Mark Cuban on a personal injury blog? I’ll tell you why.
Last week, a local Huntsville lawyer boasted on LinkedIn that he intentionally marketed for mass tort cases without a clue as to how to handle them. No joke. That lawyer actually wrote, “I don’t know how to litigate a mass tort case.” Ponder that for a moment. Boasting that you are asking for cases you really cannot handle? Maybe it’s shrewdly genius because when a future case inevitably goes bad he can claim he disclosed the truth! Let me give you a little current context — That lawyer marketed he was handling 3M earplug cases. He wasn’t. He was just signing clients and shipping claims elsewhere.
Now that the cases may be resolved by a potential global settlement, he’s touting what he terms his “handsome referral fees” and boasting he really doesn’t know how to litigate them. In the context of the article, he says he used to feel bad but doesn’t anymore. Situational gain has a way of obscuring the internal compass! Throughout history, people benefitting economically from an action always seem to justify the unjustifiable.
Mark Cuban was talking about investing. Specifically, he was talking about a bull market where just about any stock buy is a win — until it isn’t. A market where every stock picker looks like a real genius — until they don’t. In real life, it’s called situational success. The problem is that when things get rough, the person previously winning on situational success causes a lot of pain to people who had been relying upon him. It’s too late to fix the problem when things go bad.
I can hear it now — This boasting lawyer will argue the 3M cases ended in a global deal for all. Success he will say! Maybe here. Time will still tell if the current global deal is a done deal. I hope so for everyone hurt by these defective ear plugs.
Look, I hope the 3M global settlement works out. I hope this lawyer touting his “revenue stream” based upon an admitted lack of knowledge is successful. I don’t hope for success for his sake but for the sake of his trusting clients.
Lots of military men and women suffered serious hearing loss from defective 3M earplugs. Fortunately for the other lawyer who gambled with his clients’ futures and boasted on LinkedIn about it, lots of mass tort cases do reach global settlements. Several years ago, our office represented a number of men in northern Alabama who suffered injury (cancer) after taking the prescribed diabetes drug Actos. After some other lawyers tried an early Actos claim (including a phenomenal Texas trial lawyer), that defendant drug maker negotiated a potential global settlement for all pending cases. It was a good deal.
If you care about your clients, you don’t gamble that others will get you a good global deal. In the Actos cases, our office never gambled. We prepared the cases prior to any settlement talks. We interviewed the local Huntsville doctors who prescribed the Actos and who treated our clients’ cancers. We met with potential experts and were ready to move our clients’ cases to trial. I even traveled to Miami to meet with an epidemiologist who could provide key information for our cases. By the time of the settlement talks, we were in a good position either way. You need to know what you are doing to protect your clients. Of course, the first advice Mark Cuban gave his niece was to know what you are doing.
You definitely don’t need to count on some lawyer elsewhere to get you a global deal. It’s great if they do. But, you better be ready if they don’t!
Cases don’t always end in nice global deals where everyone looks so smart. Ask many of the lawyers in the transvaginal mesh (TVM) cases. Lots of women suffered two injuries. One from the mesh. Two from their own lawyers. Many lawyers signed those cases with no clue as to how to handle them. The TVM cases involved complex material issues, complex regulatory issues and complex injury issues. Our firm deposed multiple medical experts, including three Huntsville Obstetricians/Gynecologists and a prominent urogynecologist surgeon at Vanderbilt. We then had to develop a urogynecologist expert for our cases. After designating him, we had to fight the onslaught of motions from the manufacturer to position the cases for trial.
When no global deal occurred in those TVM cases and the manufacturers began forcing injured plaintiffs to litigate their claims, many of the same lawyers rushing to sign cases started rushing to abandon their clients. Many of those lawyers made small, unjust deals to resolve volumes of cases. No question in those cases — Injured women were much better with lawyers who actively knew and litigated their claims. If you are going to sign a complex product case like that, you better understand the regulatory environment, unique Alabama law, and the specific medical injuries. In the TVM cases, lawyers who knew how to prepare the claims did so much better. Much, much, much better. I really feel for the injured women who hired someone that admittedly did not know how to litigate a mass tort.
If your mass tort injury claim requires actual litigation, you are putting your entire family at risk with a lawyer who expressly asks for your claim while admitting to others he really has no knowledge or intention of litigating it. I’m not trying to pick on any other lawyer. I just believe our profession is better and our neighbors deserve better.
I can hear it now — This boasting lawyer will argue he vetted and referred his cases to skilled counsel elsewhere. In other words, he found an outside lawyer who could litigate the cases. Maybe he did. I don’t dispute that. I hope he did for the sake of his injured clients. That lawyer still put his clients at great risk. I’ll share some discussion on this issue.
Back to the TVM claims. In those cases, several large volume firms leveraged their few good cases to get a profitable volume settlement for themselves. Some of those firms were in the MDL leadership which this Huntsville lawyer said was among his criteria for a “referral partner.” In other words, the women with serious injuries were used to leverage deals in which their individual settlement was undoubtedly less than it should have been. That’s unacceptable to me.
During that time, our office was overrun with Alabama callers sent by someone else to a large firm elsewhere but were now being abandoned. They were treated shamefully. Their lawyers abandoned them because they were going to have to litigate the claim under Alabama law and didn’t know how to do so. Nor did they have the manpower to do so.
What’s more, we are talking about people injured from drugs and devices here in northern Alabama. People hurt here. People who required medical care here. Some large firm located elsewhere is typically unable to devote the resources locally. If the firm is out-of-state, it might not even understand the nuances of Alabama law or the local medical community.
I could continue with more horror stories but I won’t. It might look like a good idea to the lawyer profiting when he doesn’t understand the area of the law at issue. And, everyone may be happy when the main players strike a global deal for all. When the going gets a little tougher, the same lawyers (or other professionals) suddenly put their clients at risk. That’s a risk that I find unacceptable.