Should States Attorneys General Rethink Outsourcing Prosecution Of Mass Tort Civil Actions?
No. They can't afford to. Not in this economy. Not in any economy. It makes sense for states to outsource to avoid unnecessary overhead. California is issuing IOU's in lieu of checks to their vendors. If the Attorney General of the State of California approaches a trial lawyer for purposes of pursuing private litigation on behalf of California, are the citizens of California well served. You bet they are. Trial lawyers take on cases on a contingency fee basis, at great risk to themselves because there is no guarantee that they will be paid at the end of the case. Their financial success in the case is contingent on their successful litigation and trial of the case. They bear all the costs. The state typically pays none of the costs. Trial lawyers act as private regulators where the state legislature cannot or will not act, or where the state attorney general lacks the resources to prosecute.
Pennsylvania Governor Ed Rendell has been bashed in the media of late, recently in the editorial page of the Wall Street Journal, for participating in this practice. The case involves Pennsylvania's hiring of a Houston law firm, Bailey, Perry & Bailey to litigate a case against Jansen Pharmaceuticals over the marketing of it's antipsychotic drug Risperdal. The Bailey firm contributed to the Governor's campaign. Certainly this is an unsavory fact, but not necessarily grounds for disqualification.
The Wall Street Journal editors are wrong, however when they state that the Pennsylvania Supreme Court's intervention before the litigation is concluded is "remarkable." Not so. The Court is responding to the defendant's request for an interlocutory appeal, which is encouraged by the Pennsylvania Rules of Civil Procedure to address issues which may have a bearing on other cases or which may curtail the litigation in the case at issue.
