Monthly Archives: May 2011

The Gods of the Copybook Headings

Book Review: The Fall of the House of Zeus: The Rise and Ruin of America’s Most Powerful Trial Lawyer, by Curtis Wilkie

As I mentioned in my review of another book about ScruggsKings of Tort , I’m going to read and review this book as well. But I get bored doing things the same old way, and so I’m going to try something new: live blogging a book. As I read along in the book I’ll make observations and comments on the pages I’ve read, and bump this post up to the top of the blog with new updates. 

I’ve stayed away from reading other reviews of this book to try to come at it uninfluenced by the opinions of others, although of course some people have expressed orally or in email some of their general opinions, favorable and unfavorable. 

Notes on the title, preface and first few pages of Chapter One    

Fall of the House of Zeus? Right, I know, Dickie Scruggs was called Zeus in college because of his amazingness, or some such. I thought the book’s title might be ironic, but after reading this far, I’m guessing it’s not. Right before the preface, there is a quote from The Iliad about Zeus the cloud-gatherer laying on invincible hands, and his queen being afraid, and the rest of the gods being troubled in the House of Zeus. Now, Zeus wasn’t above engaging in a few capers himself and shared much of the cupidity and caprice of humans, but with about a billion times more power. So it’s not as if Scruggs is being promoted as a candidate to expand the Holy Trinity to a foursome.  Still, I’m getting a strong vibe here that the Zeus metaphor isn’t contrapuntal. 

The preface, in fact, sets out on a pro-Scruggs track that suggests a title for the Latin edition of this book might be Summa Apologia Scruggsicum.  Or possibly a sequel to Milton’s Paradise Lost, where the author this time "attempts to justify the ways of Scruggs to men." Whereas, the whole Scruggs saga suggests to me a different sets of gods: the Gods of the Copybook Headings versus the Gods of the Market Place.  Indeed, I think the Gods of the Copybook Headings were decidedly unamused with Scruggs. 

The preface sets out a world in which little people are in essence yoked up to pull sledges while top-hatted swells with Mr. Peanut monocles and walking sticks crack whips on their backs, and it is necessary for trial lawyers to graciously step up and do their stuff to stop the victimization because of a "vacuum created by a lack of government regulation."  Why, if only government were larger, more intrusive and more intent on controlling every facet of life, then it would be unnecessary for folks like Scruggs to bring down Big Tobacco. Except that he didn’t. All Scruggs and others, including Congress, did was to give the tobacco cartel an iron grip on the market by creating barriers to entrance, and in return the tobacco companies forked over protection money to trial lawyers and set up slush funds for use by state politicians. All of which they get back through customers in cooperation with those wondrous government regulators. Meet the new boss, same as the old boss; four legs good, two legs better, and all that. Scruggs as the best friend of the helots since the great liberator, Epaminondas, is a bit hard to read without tasting a little bit of throw-up in the back of your mouth.

That taste grows stronger at the end of the preface with this passage that describes a conversation between the author and Scruggs (I haven’t mentioned yet that Wilkie is an unabashed friend of Scruggs):

As I was leaving the room where we met, he folded his hands and asked, "When all this is over, are you going to be able to tell me how I got mixed up with these guys?"  

I have tried.

Excuse me? How did Scruggs get mixed up with all these bad boys? Let me check the title of the book again. Oh yeah, Rise and Ruin of America’s Most Powerful Trial Lawyer. I thought we were talking about Zeus here. Just a few pages earlier, didn’t it say this: "Scruggs first drew blood from the asbestos industry and then brought Big Tobacco to its knees . . . . he was locked in an epic struggle with his most formidable opponent to date — the American insurance industry . . . ."   

Um, how come one minute he’s the most powerful trial lawyer in the country and is up on Olympus kickin’ some tobacco, asbestos and insurance a$$, but then the next minute he’s a victim? Isn’t the better question how "those guys" got mixed up with him? Now, let me make a guess here — we’re going to hear some Poorer-Than-Thou talk. That is, we’re going to read a fair amount about Scruggs’ being poor when he was a kid and consequently he overcompensated about money and control and winning at all costs. With the point being the same one as in the great line in West Side Story: "Hey, I’m depraved on account I’m deprived!" If so, try and sell that to Officer Krupke because I’m not buying. 

OK, we’re off to an inauspicious and ill-omened start. I hope I’m wrong about what else the book is going to say — or leave out. But I bet I ain’t. 

 

 

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Memorial Day 2011

This is my annual Memoraial Day post, which I first ran in 2006 as a tribute to my Dad, who served as a soldier during World War II. 

I’ve thought of his service often, and have read many books about war and military history to try to understand what he did, what he went through, and also who he was.  As Dickens pointed out in A Tale of Two Cities, the human heart is a mystery even to those closest to us, and there are many things I know about my Dad, but so much I don’t.  

I do know this much.  He was born to farmers, he farmed before he went to war, and he came back home to farm.  In a way, he was a descendant of the citizen-soldiers during the Peloponnesian War — farmers who left the land to put on armor and engage in a widespread conflagration, shipped out to fight in places they knew little about.  For soldiers in the era of classical Greece, the highest honor was not to kill or stand out as a hero, but to stay in line, not run away, and support the man standing next to you.  And so it is to this day. (The classicist Victor Davis Hanson has done impressive work in tracing the origins of Western military discipline, methods of fighting and ethos back to ancient Greece). I also know that my Dad was wounded once — some shrapnel from an exploding artillery shell struck him in the neck — but he must have refrained from applying for a Purple Heart, because it is not among his battle decorations. I know of it only because I directly asked him once if he had been shot during the war, and he never mentioned it to me again. Knowing my Dad, he would have been embarrassed to get a decoration for his wound when so many others were hurt much worse or killed.

I also know this: he was a tough, tough man in every sense.  He did whatever work he could find to earn money during the Depression — he was one of 12 kids in his family.  He did some farming for his father, he dug ditches and planted trees for the government. He enlisted before the United States entered World War II, and came back home after a brutal war in which he had seen a great deal of savage behavior by the Japanese Imperial Army, but I never heard him say one word of hate against the Japanese.  He was the kind of man who worked on the oil rigs in 40-below weather in the winter to feed his family during years the crops had failed.  When it was too cold to start the car, he walked four miles to town in a blizzard to get kerosene and supplies.  He was tough enough to fight some of the best soldiers that ever lived — Japanese Imperial Marines — in jungles and mountains (how much he must have hated that, being from flat, treeless North Dakota). He was tough enough to have seen many people killed — besides deaths in straight-up combat, his unit was chronically short of officers because they were constantly killed in camp and behind the front lines by Japanese snipers — and never talk of wanting to hurt other people. And he was also tough enough to deliver me and one of my older sisters when we were born, with the nearest doctor 20 miles away. I guess he had helped so many calves to be born, he thought how hard can it be to bring a baby into the world. He taught me how to work hard, how to see humanity even in people you don’t like, how to keep going ahead when things don’t go your way and you feel like quitting. He died in 1984.  I don’t think a single day has passed since then that I haven’t thought of him.    

Here’s the original post from 2006, updated to make the year current.  By the way, last year someone sent me a pdf of a battle report in the Philippines by, I think, my Dad’s company commander.  An interesting tale, full of all the usual elements of the human condition: boredom followed by extreme danger, getting lost, someone screwing up, the need to find something to eat.   

_____________________________________________ 

Sixty-six years ago this month, the men of the Sixth Infantry Division, U.S. Army, were in their fifth month of fighting the Japanese Imperial Army on the island of Luzon, the Philippines.  They had just cracked the Shimbu line after a two-month battle in which the division’s three regiments were thrown into a battle against 14,000 Japanese soldiers waiting in bunkers, pillboxes, trenches and caves.  During the Shimbu line battles, every attack was met with a counterattack from the Japanese, who favored night actions and the banzai charge.  Many of the Sixth’s soldiers were ill with diseases like malaria from fighting in the jungles of New Guinea the prior year against elite Imperial Marines.

At that time, in late May 1945, plans were being drawn up for Operation Coronet, the invasion of Honshu, Japan, which was to begin on March 1, 1946.  Operation Coronet was to follow Operation Olympic, the invasion of Kyushu, which was scheduled for November 9, 1945.  How many American dead and wounded were expected from these two invasions is disputed, but this much is known for sure — the Army manufactured 500,000 Purple Hearts in anticipation of the battle for Japan, a stockpile it has yet to exhaust in all the years since.  The Order of Battle for Operation Coronet included the landing of eight armored and infantry divisions west of Tokyo Bay.  These divisions were then to fight their way north and take the city in conjunction with other U.S. forces.  Among those divisions was the Sixth. Among the three regiments of the Sixth was the 63rd Infantry Regiment, and among the 63rd’s 12 companies was Company C.  Among the soldiers of Company C that would have fought their way toward Tokyo, presuming they had not already been killed in their landing transports before they hit the beaches by one of the 10,000 kamikaze planes assembled to oppose the landings, was a young staff sergeant named Fred Rossmiller, my Dad.  In addition to the perhaps 400,000 American dead expected in the battle, it was thought 5 million to 10 million Japanese soldiers and civilians would die.

As we now know, Operation Coronet never happened, because the war ended in September 1945.  If it hadn’t, my Dad might never have made it back to Wildrose, North Dakota, where years later, he delivered me, the fifth of five children, one October morning on our farm.  My Dad never said much to me about the war.  I asked him once if he had killed in battle.  He said he didn’t know: he fired at the enemy and they fired at him.  If he had killed someone, he had not personally seen it.  He then told me a different story, about how when he was fighting in Luzon, he and his unit came upon some members of the Filipino Army, who had captured a Japanese soldier, tied him to a tree and were beating him.  My Dad stopped them, but his unit was involved in a battle, and had to move on.  They couldn’t take the prisoner with them.  After his unit moved out, my Dad said, he didn’t know what happened.

The mutual enmity between the Japanese and American armies in World War II was extremely high.  Yet my Dad had tried to protect this enemy soldier, and apparently thought this a more appropriate lesson for his child than his other combat experiences, because he never talked to me about them in the same kind of detail. Mostly, what I know of the Sixth and its battles I have read in the official division history and elsewhere.

In the abstract, it may sound like a cliche to talk about honoring those who have served and sacrificed for our nation.  But that abstract concept of service and sacrifice is made up of millions of individual real acts by real people who did things like carry a 70-pound machine gun on their backs through dense, mountainous jungle, and sleep with their boots on both to keep snakes and bugs out and to be ready for an enemy suicide attack.  People like my Dad, who fought in 306 days of combat, the last 219 of them consecutive, and then went home and farmed, didn’t complain, and didn’t talk much about what he had done.  There is a word for people like that, people like my Dad: heroes.  And they have Memorial Day lest we forget.

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Homeowners insurance for natural disasters

After a disaster like the Joplin, Missouri tornado, there are always a spate of stories like this one about knowing what homeowners policies cover and don’t, and getting supplemental coverage if you can. Mostly they are uninformative or wrong, but this one is surprisingly accurate for the most part. One thing about it is wrong: it says destruction of your home by "natural" fires aren’t covered. For the most part, this is untrue, although if your house is in a forest there may be an exclusion. This piece is non-Joplin related, gives more details, and answers the crucial question of whether you are covered if your ex- burns down your house. As an aside, when I say most stuff about insurance in popular media is wrong, I don’t say that with snark. I have a lot of sympathy for journalists, used to be one myself, and it is not easy to write something like this. It’s easy to be wrong about insurance. In fact, it’s so easy I’ve never yet seen opposing counsel or the other party in a dispute get it right. 

More disaster links:

Red tape adds to misery for Alabama tornado victims: A lot of this is simply confusion about what federal agencies do, and how the insurance process works. What a situation like this calls for, really, is a famous and rich litigation impressario to come in, pose as a champion of the people, and exploit the situation for profit.  

Texas windstorm negotiations fail:  "The marathon negotiations over the Texas Windstorm Insurance Association failed to produce a bill, probably prompting a special session later this summer over that issue. The insurer of last resort is short of funds and lawmakers are trying to reform the quasi-government agency and get it on sound financial footing. The last sticking points were over when and how much to compensate policyholders and their lawyers and became a proxy fight for trial lawyers and tort reformers." Like most brands, the well has run dry on the term "trial lawyers," but it was a brilliant naming strategy while it lasted. 

Insurers cool to news of improved flood defenses in New Orleans:  Good to see reporter Rebecca Mowbray still doing good, informative stories on insurance for a major newspaper. Got to know her during the Katrina Follies, always have thought highly of her work. 

Update: Ambulance-chasing contractors plague Minneapolis and swarm homeowners after tornado damage.  It’s pretty significant, but not all that hard to believe, that four out of four contractors checked out by the StarTribune were shaky.   

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‘Once the cash flow dries up your business is history’

A story from New Zealand, after the devastating quakes, about the importance of business-income insurance.  I see they are still calling it "business-interruption" insurance there. Outside of a relatively small cadre of people who deal with these them all the time, I seldom meet anyone, especially business owners (and sometimes adjusters), who really understands or even claims to understand how these policies work. Results in a lot of heartache, misunderstandings and recriminations.     

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Scruggsipus Rex: Review of ‘Kings of Tort’

Yeah, I know, what’s with me, right? How many blogging comebacks am I going to make, and when am I done talking about Scruggs? I get asked about blogging all the time: when am I going to start again, when am I going to start again and stop quitting, and so forth. Fair questions. At some point, I either have to blog or cut bait, and what I’ve decided to do is blog. With some help, as you will see in the coming days. 

Also, while I’ve never been one to stick strictly to the putative subject matter of this blog — insurance — I’m going to broaden the subject matter a bit beyond insurance and Scruggs. Because let’s face it, while it’s well known that insurance analysis is the rock ‘n’ roll of the 21st Century, and that it provides not only endless intellectual challenges but also invitations to all the cool parties, a little variety is a good thing.

That being said, one of the things I’ve had sitting around for quite a few months is a book review I did last year of the book Kings of Tort for the Mississippi College Law Review. My thinking is I should get this posted before its beard gets any longer, and move on to other stuff.  I wrote this review before the publishing of the newest book about Scruggs,  The Fall of House of Zeus, by Curtis Wilkie. I have not read Zeus, but I intend to soon. I’ve heard very good things about it from a number of people including two of my law partners, one of whom said he couldn’t decide which was the better book, Zeus or Kings of Tort.  When I get Zeus read, I’ll write a review and post it here. It might take a while. This review of Kings of Tort took a long time to write — I wanted to make sure I gave it an A+ effort.  Here’s the opening paragraph of my review:

The career of fabled tort lawyer Richard F. "Dickie" Scruggs provides one of the better arguments for the truth of Karl Marx’s dictum that events and people come along twice in history — the first time as tragedy, the second as farce.     

To read the rest, click here.

                                          

That’s it for today. Probably the only Marxian review you’ll find about a Scruggs book, although I did ponder which Marxist view would be the best to analyze Scruggs: Karl or Groucho. The review might have worked just as well with Groucho: "Say the secret word and win a hundred dollars," particularly if the secret word was "sweet potatoes." 

Catch you in the next post . . . in a couple years. Kidding. See you soon.  

 

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