We take the law for granted. Everyone knows that if someone hurts you wrongfully, that you can take them court, right?
RECALLING TOM LAMBERT
Joseph A. Page*
One would be hard-pressed to find a more apt exemplification for the term “a hard act to follow” than in the replacement of Roscoe Pound by Thomas F. Lambert, Jr. as Editor-in-Chief of the NACCA Law Journal in 1955. Pound was a giant who stood astride the landscape of global jurisprudence, the recipient of some 200 honorary degrees in this country and abroad, for two decades the dean of the Harvard Law School, and in his post-retirement years an adornment at the top of the masthead of a legal journal published by NACCA, a bar association of lawyers who brought tort claims on behalf of accident victims. Lambert was the young torts professor at the Boston University Law School NACCA tapped to be Pound’s successor.
The choice of Lambert turned out to be providential. In the late 1950s and the 1960s, tort law would undergo dramatic changes, as courts across the country recognized new common-law duties, cut back on rules that they found imposed undue restrictions on liability, and gave substance to the principle that monetary damages in tort cases should provide adequate compensation for accident victims. And Thomas F. Lambert, Jr., would play a key role in educating and galvanizing the lawyers who brought and won the cases that produced these results.
Although Lambert was not a nationally known figure when he replaced Roscoe Pound, his background contained subtle indications that he came to the job with a unique skill set that prepared him for the particular challenges he would face. He was a star debater at the University of California at Los Angeles, where he would also perform before large crowds as a football cheer leader for the UCLA Bruins. He was the college’s first Rhodes scholar, which enabled him to spend three years at Oxford, where he earned a degree in law and enjoyed travel opportunities that put him in contact with Europe on the brink of World War II. After doing graduate work at Yale, he entered academia in 1940 at the Stetson University Law School in Florida, and soon became its dean. This made him, at the age of 26, the youngest professor ever to lead an American law faculty.
Enlisting in the Navy as an ensign, he joined Justice Robert H. Jackson’s staff on the Nuremburg international tribunal that was bringing Nazi war criminals to justice after the cessation of hostilities, and made the oral presentation of the case against Martin Bormann, the head of the Nazi party. Upon his return to the United States, he taught part-time for two semesters at the New York University Law School, and then secured a tenure-track position at the Boston University Law School, where his professorial portfolio included torts, conflict of laws and legal history.
Trading his academic robes for the editorship of the semi-annual NACCA Law Journal, Lambert assumed responsibility for writing and editing comments on recent developments in the Association’s delineation of the field of personal-injury law, which covered accidents in the workplace, at sea, in the air and in the operation of railroads, as well as in all other situations that might give rise to a tort claim. He also contributed to each issue an essay that often sought to place in a broader perspective the case law discussed in each volume.
To produce two weighty journals a year (and a recently created monthly newsletter), even with the aid of a small editorial staff, was a daunting task. Yet the leaders of NACCA also realized that to keep him desk bound would have wasted his prodigious talent as a public speaker. So from the very beginning the Association encouraged him to go out on the hustings and address regional, state and local meetings of trial lawyers who represented accident victims, and on occasion gatherings of judges. Before long he was in great demand as a platform performer. In his decades as Editor-in-Chief, he managed to lecture in all 50 states, as well as Puerto Rico.
The impact of this outreach by NACCA cannot be understated. This was a period of explosive growth in the history of tort law, and Lambert was instrumental in both spreading the word to appellate litigators across the country and providing them with precedential support and argumentation that would keep the pro-plaintiff trend moving forward. His highly successful transition, from an academic who taught torts at one law school to a law professor with a national classroom, helped create a trained group of attorneys who would eventually become a force on the national political scene.
If all Lambert did was to transmit information, analytical methodology and techniques of persuasion to legal practitioners seeking to expand the scope of tort liability, he would have been deemed a brilliant success. But there was much more to him. In his public speaking, he adopted a unique style that served to entertain, enlighten and energize his audiences. His talks were flowery, persuasive, and leavened with gentle wit. He delivered them without the aid of notes, after hours of meticulous preparation.
They were most memorable in their coinage of phrases and use of epigrams. Thus, plain-speaking on behalf of accident victims became the use of “shirt-sleeve English” by trial lawyers (or “princes of the trial bar,” as he was wont to call them); the adjuster was an employee of the “Holy Grail Insurance Company” who could “enter a revolving door behind you and exit it ahead of you;” a professor “smelled of the lamp” and “would look like a foreigner in any country;” an editor is one who “approaches all questions with an open mouth;” the purpose of personal-injury law is to “comfort the afflicted and afflict the comfortable;” and the underlying principle of torts is that “it is better to build a fence at the top of the cliff than to keep an ambulance parked at the bottom.”
Since this was a time when the expansion of tort liability would require that many state courts overrule precedent, Lambert often applied his rhetorical magic to the tension between continuity and change, as embodied in the doctrine of stare decisis, and cabined by his predecessor Roscoe Pound’s Olympian pronouncement that “The law must be stable yet it cannot stand still.” Accepting as a given that “We ring the bells of the future with the rope of the past” and that “There is a time for cement and a time for ferment,” he placed tort law squarely in the latter category, and called upon NACCA’s “stalwarts” to convince courts to change outmoded tort doctrines (such as “the barnacled and baneful contributory negligence rule”) that kept tort law from fulfilling its lofty goals (“the urge of the acorn to become an oak”), or that perpetuated error (“In 1491 the world was flat, Columbus, J., dissenting”).
His legion of admirers dubbed him the “Poet Laureate of Tort Law,” which might not have done full justice to the oratorical virtuosity that made him an exceptional “Great Communicator.” But because he lived in a pre-YouTube era, when audio and audio-visual recordings of the kind of talks he customarily delivered were seldom made, his reputation has faded, as those among us who personally experienced his magic grow fewer. One can but hope that those who believe in the cause he espoused (a common law of torts that is always improving and in the process of becoming) will make every effort to rekindle his spirit and adapt it to the needs of the twenty-first century, with tort law under siege and new technologies presenting new risks requiring some measure of public control.
Automobiles have been closely tied to the law of torts for a century. There have been many automobile-related lawsuits, ranging from cases involving the operation of cars (who ran the stop sign?) to defects and dangers in the design and manufacture of the automobiles (and other motor vehicles) themselves. And because tort law is quality control, cars and trucks are safer as a result.
Still, it is worth noting that motor vehicles still pose significant threats to the health and safety of passengers, sometimes in unexpected ways. Two recent articles which highlight this are found in the New York Times.
On October 26, 2016, in an article titled “Used Cars Slip Past Recall Safeguards, Putting drivers in Danger,” Rachel Adams and Hiroku Tabuchi reported on the dangers of cars for which recall notices have been issued, but repairs have not been made. As they noted, “[There are] a group of drivers especially vulnerable to dangerous vehicles: second, third or even fourth owners, who purchased their vehicles in transactions far removed from the protections offered to buyers of new cars.”
This is because “there is no explicit federal requirement that sellers of used cars fix problems related to safety recalls, or even disclose the recalls, the way new-car dealers must.”
And this is a big problem. last year, roughly 38 million used cars were sold across the country, which is more than twice as many as cars that were sold new.
This is an article worth reading. As the authors note, there is an online government database, which anyone can use, to see if there are recalls associated with a given car. The vehicle identification number is necessary to use this. The link is here: https://vinrcl.safercar.gov/vin/
The New York Times also reports on another hidden danger of cars, this time with overseas cars. The article is “Thinking of Renting a Car in Yucatan? Think Twice,” by Tanya Mohn, which appeared in the New York Times on October 31, 2016.
This article points out that
When Americans rent a car in the United States, they have come to expect a certain measure of safety. But in some parts of the world, it can be a different story. The car driven at home may have many of the latest safety features, but the same make of car rented abroad may not have even the most basic ones. (Emphasis added).
This effects millions of cars sold around the world. As the author notes, “improvements introduced decades ago for cars sold in Europe and the United States are not found in many new models sold in middle-income countries in Africa, Asia and Latin America.”
Several auto safety groups organized a crash test between a 2016 Nissan Versa, sold in the United States, and a Nissan Tsuru, a model “popular for rentals and taxis in Mexico.” The results were devastating. The Tsuru had no airbags, and in a crash test, caused injuries probably sufficient to kill a passenger on impact. The crash test dummy in the Versa, by contrast, would have only sustained minor knee injuries. “It’s the worst performance I ‘ve ever seen, said David Ward, who leads one of the safety groups involved in the [crash] test and referred to the Tsuru as a ‘Deathtrap.’”
Although Nissan has indicated that it will stop production of the Tsuru, that won’t be until next May. The article states:
The Latin American chapter of Mr. Ward’s group noted that Tsurus had been involved in more than 4,000 deaths on Mexico’s roads between 2007 and 2012. Despite the decision to end production, as least 15,000 of the ‘potentially life-threatening model’ might be sold before Nissan Mexico stops making it.
The article concluded by noting that “when American cruise ship travelers arrive in a foreign country, there is often a big line in front of Hertz or Avis stands, so they go to the counter of a local rental car company with no line. It’s usually a mistake.”
These two articles serve as cautionary warnings to consumers. Be careful out there.
Recently, Virginia Governor Terry McAuliffe signed an executive order, restoring the voting rights of roughly 200,000 convicts who have completed their sentences. Approximately 5,000 of those people have since registered to vote.
In signing the order, Governor McAuliffe also made those former criminals eligible to serve on juries. In response, some Virginia prosecutors have asked the governor for a list of the names of those former criminals eligible to be restored to the jury rolls. According to an article in the Washington Post, one such prosecutor has stated, “It’s insulting to victims, especially in very sensitive cases, to have someone who has committed that crime sit in judgment of the person who has wronged you. I don’t think it’s fair for a child victim if I’ve got a sex offender sitting on the jury.”
The Governor’s office has refused to provide that list, and a spokesman for the Governor has stated that “[The Prosecutor’s] request was a political ploy by Republican prosecutors to embarrass McAuliffe — and prosecutors have the means to vet potential jurors.” The Governor has also noted that “convicted felons have always been able to get their rights restored in Virginia. . . A felon’s rights are automatically restored after they complete their parole or supervised probation, and once they register to vote, they become eligible for jury duty.”
So one view is that they did the crime; they did the time; and their debt to society has been paid.
The other is that convicted felons should not be permitted to serve on juries, even after they have finished serving their sentences.
What do you think – Should the law allow ex-cons to serve on juries?
Do you remember Joe Camel and the Marlboro Man? Cigarette manufacturers don’t use them in their ads anymore, because a series of lawsuits beginning in the 1980s have succeeded in holding Big Tobacco companies accountable for their dangerous products and in making them change some of their practices.
Stella Liebeck, the 79-year-old woman who was severely burned by McDonald’s coffee that she spilled in her lap in 1992, was unfairly held up as an example of frivolous litigation in the public eye. Also referred to as the “Hot Coffee Case”.
The right of trial by jury is one of the jewels of the American system of government. For hundreds of years the right of trial by jury has been seen as a check, not only on the power of government; but also on the influence of the wealthy and powerful, or in today’s parlance, the 1%.
For years the American Chamber of Commerce has waged a war against the civil justice system. It is, after all, no big secret that the American Chamber of Commerce hates trial lawyers, and tort law; hates, in fact, the very idea of a system which hold wrongdoers accountable for causing injury, harm, and death.
November 1998 marked a pivotal moment in the history of cigarettes in the United States. Forty-six states and the four largest tobacco companies reached a landmark settlement that brought sweeping changes to cigarette manufacturers’ practices—and to rates of smoking. Since the settlement, cigarette smoking rates in the United States have been cut nearly in half.