DEFENDING ALCOHOL, TOBACCO, AND FIREARMS

- IMMIGRATION ADVOCACY

NOTE: The Trial Lawyers College's listserve recently had a discussion about the wisdom, or lack thereof, of barring corporate and insurance defense lawyers from TLC programs. When I attended the Trial Lawyers College, I was a full-time public defender lawyer, with prior corporate litigation experience, which fit squarely with the TLC's general advisory that only lawyers for individuals need apply. I replied that our law firm includes representation of corporations, and that disputes between individuals and corporations don't automatically put the individual on the higher ground, and followed up with the following edited opinion: 

This replies to the two dissents from my message confirming that I'm willing to defend against tobacco and handgun products liability actions, the McDonald's' hot coffee action (I'm too late there), and actions against bars that serve drunk drivers. I also confirmed my siding with the libel defense side over the libel plaintiff side. 

I feel viscerally against allowing any of these causes of action (I expect, by the way, that many people feel viscerally opposed to my view), as follows: 

TOBACCO- Here's this plant that's been around longer than humans, and a bunch of people want to allow product liability causes of action against companies that vend the plant, for reasons including lies to the public about the plant's dangerousness, manipulation of nicotine amounts to get the consumers addicted, marketing the product to minors to create a new market of tobacco addicts, secondhand smoke, huge cost to the healthcare system, and marketing it in less developed nations where the restrictions on tobacco are looser. I'm puzzled about what made the users of tobacco think that smoking anything is safe; in this and certain other areas, caveat emptor also informs my opposition to tobacco product liability litigation. Beyond that, for me to support tobacco litigation seems to fly in the face of my desire for widespread drug decriminalization, and full legalization of marijuana; the same arguments for allowing tobacco litigation and suppression can easily be used against other drugs, when I want them decriminalized.

HANDGUNS- I have no problem with suing the shooter who causes injury, and with suing the manufacturer if the gun causes injury for not doing what it's supposed to do (e.g., a faulty safety latch; a gun that backfires). I think that suing the manufacturer for strict product liability is a cause of action that's too attenuated from the injury. As with tobacco, the proponents of such litigation will claim that handguns are unsafe at all times, no matter what; and might also say that the handgun manufacturers/distributors/sellers push the product too much without watching out for safety locks, safety training and the like. I have an even harder time with such litigation so long as we have a Second Amendment, which, in my view, provides strong protection to handgun use
and distribution. If the gun control advocates want the levels of gun control that we have now, without being disingenuous to the Constitution, I think that the Second Amendment will need amending first.

McDONALD'S HOT COFFEE- The victim's injuries were apparently horrendous. I've heard some of the arguments justifying the cause of action (e.g., McDonald's heating the coffee hotter than necessary, and failing to warn of the heat level). But how much of a plastic bubble are we going to foist on American society? Coffee by definition is hot. The victim apparently placed the coffee between her legs in a car to add milk and sugar, causing a spill. If the suit included an allegation of a defective cup, I might change my mind, depending on the cup's defect. I know that the victim's lawyer is a fellow Trial Lawyers College grad. I welcome talking to him on this.  

BARS- I have no problem suing the drunk driver. To allow suits against bars and other liquor sellers puts them in the business of assessing sobriety, and is often too attenuated, I believe. To justify such suits against bars also provides ammo for arguments against drug decriminalization, when I want such decriminalization.

LIBEL DEFENSE- I certainly regret how widespread is the support for allowing libel actions. To allow libel actions is to ask to carve out deep exceptions to First Amendment freedoms; I don't think it's possible to carve out any neat First Amendment exceptions, but that instead the carving creates a bloody and very damaging mess.

My foregoing views do not arise from my product usage, because I don't smoke tobacco, no longer drink liquor or coffee, and my last joint is a distant memory; I haven't fired or possessed a gun in 25 years. I've advocated for many injury victims, and agree with many of the basics of personal injury law that protect victims. Nor am I a Libertarian (not with a capital "L", at least). They are my views, nonetheless.  

Date: March 27, 2002

     Marks & Katz was founded by a couple of eternal idealists who continue to believe that justice is not just a dream, justice is not just an ideal, and justice is not to be relegated to dusty library stacks. We kept this ideal alive before, during, and after law school, when many around us thought we were being quixotic. This ideal drives our law firm and what we do for our clients every day. We put our clients ahead of money, focus on winning advocacy, and maintain strong passion for our clients and their causes. Our founding law partners Jay Marks and Jon Katz met in 1969, attended public school together, trust each other deeply, and work closely together. We opened in 1998 after working many years at other law offices. We are dedicated to justice, welcome tough cases, and never shy away from controversy. 

JAY S. MARKS (Admitted in MD/DC/IL, and the U.S. Court of Appeals (4th Circuit)).  Se habla espanol. Se fala portugues.

JONATHAN L. KATZ  (Admitted in MD/DC/VA state and federal courts, and the U.S. Supreme Court) On parle francais.