The American presidential spectacle

Prominent US trial lawyer Reuben Guttman shares his thoughts on the spectacle that is the US presidential election.

Every four years, the world is treated to the spectacle of the Summer Olympics, where athletes run their legs in a show of skill and strength. Coinciding with this occurrence is the American presidential election, where candidates run their mouths.

The Republicans have enough candidates to stage two debates. Those candidates with lower poll ratings are relegated to sitting at what amounts to the children’s table, where – naturally – the debate starts earlier. Presumably this is so the children can be tucked in while the front runners do their business.

The Democrats only have three major candidates and are having a go at it without any children this time around.

Though hard to discern, there are strategies to these matches of American intellect. Just as an Olympic distance runner saves his or her strength for the final lap, US presidential candidates try not to burn any intellectual reserve this early in the game. Standing behind their podiums, they take notes, adjust their glasses, and give each other gimlet eye glances. The winner is the one who says the least while maintaining the optics of communicating the most.

The Republicans thrive on debating who is a real conservative, who is more electable, and who has more guns.

For their part, the Democratic debate is just as vacuous; is Bernie Sanders a socialist and what extracurricular activities are on the agenda of Hillary’s husband, the former president? The third candidate, Martin O’Malley, seems to get lost in the mix. No surprise there; when he was governor of Maryland, most Marylanders only knew that he was the governor because signs on the highways said so. Sadly, those without an automobile were left clueless.

If Martians were to invade and randomly channel surf, they might actually confuse the debates with a reality TV show. Come to think of it, the Martians would be right.

All of this is unfortunate. There are real issues. The next president will have the ability to make appointments tipping the balance of the judiciary including the Supreme Court. Obamacare is still a work in progress and the next president needs to do something about the Centers for Medicare Services, which in privatising the Medicare system allows more theft than would be sustained by an electronics store with a plate glass window during a lengthy power outage.  There is also much to discuss on the foreign policy front, including a massive trade imbalance and regulation of publicly traded companies in a global economy.

But for now, why talk specifics when we, Americans, are still tuning in to watch the spectacle?

Reuben Guttman is a trial lawyer and founding partner at Washington, DC-based firm Guttman, Buschner & Brooks.

Thoughts on law in theory and reality

Sometime ago, a law student asked me whether law school adequately prepares students for the practice of law.

It seems that students study law and lawyers study fact patterns with an eye toward applying the law. The difference can be traced to the origin of the task: the law professor assigns a case to read presumably with a focus on teaching a rule of law, while the client presents a set of facts to which a lawyer must apply a rule of law.

Stick around long enough and the facts turn into repetitive patterns and the practice of law becomes a study in human nature, mistakes, challenges and ethical dilemmas. At some point the youngster carrying the casebook becomes a meld of psychologist and sociologist, a witness to the flaws, successes and conduct of government, private institutions, and people. Here are some observations:

In large corporations and those that run them, greed in its varying forms is a constant. It manifests itself in efforts to push the boundaries of the law, a calculation of the risk of being caught and, if caught, a colourable argument as to why the conduct fits within some loophole in the law. The argument need not necessarily be a logical extension of legal doctrine; it need only pose a hurdle for prosecutors, a bargaining chip if you will. Of course, ‘loophole’ is really a term used by non-lawyers to describe the law’s inability to clearly address fundamentally reprehensible conduct.

As for clients and witnesses, they seem to relish the comfort of being part of institutions. Our dog has the same level of comfort when she runs in to her dog house, where she’s protected on three sides. Yet, unlike the dog house, an institution can provide a false sense of comfort, as was the case with Enron, Tyco, and WorldCom. Employees who now face being laid-off at Turing Pharmaceutical are learning this lesson the hard way.

Institutions – as in large corporations – can also be manipulative. Think of the pharmaceutical sales representative who is unwittingly tasked with marketing drugs for unapproved purposes or the doctor who is flattered when paid to speak on behalf of a drug company, perhaps without being aware that the company is monitoring his or her prescription writing patterns and conducting return on investment analysis. Why question wrongdoing when a corporation has an internal compliance program? Surely anything bad would have been detected and abated? Not quite. Compliance programs exist in part to convince those within the institution that impropriety is not possible. The need to be accepted by the institution can also be a tide pushing against the questioning of impropriety, even when that impropriety is harmful to the employee. Think of the worker victimised by sexual harassment who continues to laud the employer. Think also of the employer tasking the marketing department to record a victimised employee’s promotion of the company as an evidentiary hedge against a potential claim.

Practice long enough and one learns that there is, as they say, always an elephant in the room. In Friedrichs v. California Teachers Association, the United States Supreme Court will soon determine whether the First Amendment is violated when employees are compelled to pay ‘agency fees’ to a public employee labour union. Yet, is this case really about the First Amendment, or curtailing the power of unions? Are cases compelling arbitration really about judicial efficiency, or protecting powerful business from public exposure for acts that impinge on safety and health? Think about it carefully and what may come into focus is the use of procedural rulings to impact substantive rights.

All of this is to say that the application and interpretation of law has context. Facts do matter and – to some degree – the application of law without regard to context is an exercise in futility. Of course, a legal education is the starting point to reach this conclusion. It just takes time.

Reuben Guttman is a trial lawyer and founding partner at Washington, DC-based firm Guttman, Buschner & Brooks.

GBB Legal team Settles Long Term Care Pharmacy Whistle Blower Case for $2.5 million

A $2.5 million settlement with Pharmerica, a long term care pharmacy servicing hundreds of nursing homes across the nation, completes the final leg of litigation involving the illegal promotion of Aranesp, an anemia drug manufactured by Amgen, Inc. The  settlement brings the government’s recovery inUnited States ex rel. Kurnik v. Amgen et al. to just over $31.5 million.

Kurnik was represented by Dick Harpootlian and Chris Kenney of Richard A. Harpootlian, P.A. in Columbia, South Carolina and Reuben Guttman, Traci Buschner, Justin Brooks and Caroline M. Poplin, J.D., M.D. of Guttman, Buschner & Brooks PLLC in Washington, D.C.

Read the full article here.

 

Reuben Guttman: The lawyer pharma loves to hate

Reuben Guttman wants us all to be concerned about what’s in our medicine cabinets. A Washington lawyer who specializes in prosecuting pharmaceutical fraud, Guttman has gone after Pfizer, Abbott, GlaxoSmithKline, and several other top drug makers — and he usually wins big, recouping billions of dollars for federal and state governments.

We invite you to read the full interview with Mr. Guttman conducted by By Karen Weintraub of StatNews.com

Spotlight on privatisation of the courts

As debate in the US continues over mandatory arbitration clauses that have led to private adjudications, a new film focuses attention on the use of private forums and sealed proceedings to resolve matters of potential public importance.

Spotlight, starring Michael Keaton, focuses on the team of investigative journalists from The Boston Globe who exposed sexual abuse by Roman Catholic priests. The movie takes its name from The Globe’s ‘Spotlight Team’ of investigative reporters.

As stories about investigative journalism go, Spotlight is not All the President’s Men. It is not so much about a team of reporters finding the facts on their own as it is a story about reporters struggling to pry the facts – and story – loose from attorneys who have settled their cases in private forums or who are litigating with key documents sealed by confidentiality orders.  In Spotlight, it is the lawyers who have put the facts and story together; but it is a story that they must keep to themselves.

In a line that explains the rationale for transparency of the judicial and legislative process, Justice Brandeis notes that sunshine is the best disinfectant. Court proceedings that seemingly involve only private interests may very well have public import. For example, cases alleging sexual harassment and employment discrimination, even when brought by a single plaintiff, may involve conduct that is pervasive and thus relevant to others who might muster the courage to step forward and vindicate their own rights. Matters litigated in the sunshine may cause private entities and government oversight bodies to take action to protect against prospective injury. But for the work of the Spotlight Team, the pervasive nature of egregious conduct would not have seen the light of day.

Public litigation in the United States has brought to the surface facts that make cars safer, workplaces more tolerable for protected classes and the air we breathe less dangerous to human health. It does not even take a court ruling or jury verdict to make the point – information that comes to light during the litigation process may fuel legislative oversight and/or regulation. This is not merely a collateral benefit; it is the way the system is supposed to work. And – as Spotlight reminds us – there is a real benefit to a transparent system of justice.

Reuben Guttman is a prominent trial lawyer and founding partner at Washington, DC-based firm Guttman, Buschner & Brooks.