When the history of the Mass Tort legal "business" is written some day by some university professor with an interest in strategic and organizational issues the chapter on The Vioxx Settlement should be subtitled, The Day the Music died. Perhaps no other mass tort was started with such high hopes by the trial lawyers involved and which at the end of the day ended up being a massive repudiation of the strategic thinking and legal strategy involved in prosecuting this enormously complex mass tort.

From the start it looked as if this was going to be a home run of epic proportions for trial lawyers and an opportunity for the seriously ill and injured plaintiffs to obtain some measure of economic and financial justice for what they went through. You had clear and horrific injuries as a result of strokes and heart attacks, you had hidden medical data and fudged studies that strongly suggested that Merck knew early on that their drug was a silent killer for a significant proportion of it's users and you had the FDA yanking the product off the shelf as the evidence became clear. Surely all that remained was to round up the injured victims, put them into friendly legal jurisdictions, win a few early trials and Merck would roll over and write that $30 billion check.

I was there at the start, attending ATLA and MTMP meetings and the excitement among the trial lawyers was only matched by the excitement of the legal marketing and advertising firms convincing the trial lawyers to spend massive amounts of money advertising to round up the injured Vioxx clients. Oh and did they ever advertise and spend money, all in the hope of an early, substantial settlement that would pay off all that legal financing and advertising money, but when Merck did the unthinkable and decided to spend close to $1 billion just to defend the first early trials and contest every claim and case did their strategy become clear. Bleed the trial lawyers white in a war of attrition that Merck and it's brilliant general counsel Ken Frazier knew would end in much the way the Civil War ended, with the rebels exhausted, out of resources and desperate to simply strike a truce on the best terms possible.

So what we got was the still significant, but financially modest settlement, in which $4.85 billion is to be allocated among the more then 50,000 injured and ill plaintiffs. Why do I bring all this up? Largely because I started receiving the first of my phone calls from Vioxx claimants this week as they start planning what to do with the still to be determined money they will net in the settlement. Many fear the loss of their governmental benefits if they accept even the modest amounts they might receive and others are wondering what they can do with the funds to some how rebuild their lives that have been destroyed by their use of Vioxx.

I'm not in any way criticizing the vast majority of lawyers who did their best to find injured clients and put them into the litigation process known as the Vioxx settlement. They are each working in the flawed system that has evolved and they are pretty much swept along by the tide and process, with little control over what goes on or how the case is resolved. What I am critical of is a "justice" system where we have legal war fare between a company fighting for it's very economic survival due to a drug they made and sold going bad, and trial lawyers who are vastly under funded and scattered across the country who are attempting to obtain some measure of economic and legal justice for horribly sick and injured people. The wasted time, money, resources and lives now becomes clear, as I talk one on one with the people who are struggling to live with some dignity after their lives were destroyed by this drug.

The great Gerry Spence once said, "awarding money is a poor measure of justice, but it is only measure we have in the civil justice system". As I talk with people whose needs so far outstrip any potential recovery they will receive, it only reinforces what I believe, and that is that our system for handling mass torts is badly damaged and that the only people who receive economic justice are the lawyers who defend these matters and bill at $1000 per hour, and the very few lawyers at the top of the mass tort food chain who control the litigation.

There has to be a better way, but until then the Vioxx claimants are left with the old and cold refrain, that even today their check for compensation for the injuries they suffered from Vioxx, is in the mail. The experts in the structured settlement industry, who are accomplished and experienced in how to magnify the value of a small amount of settlement money into a tax free income plan that assists these injured people is going to have to step up big and make sure these people get the help, assistance and advice that they need. These victims aren't going to get enough, but we have to help them get the most from what they recieve.

We all dutifully write out checks for insurance coverage each month, assuming that if the worst should occur, we'll be protected financially. But what we don't know about the insurance business could - and most probably will - hurt us. Vulture Culture is a hard-hitting expose of the sorry state of the industry, from tales of rampant, widespread corruption to inconsistent state regulations and the inability - and often unwillingness - of the federal government to protect the rights of denied claimants.

As anyone who works in the structured settlement industry knows, there has in the past been a sick and corrupt culture in many of the claims departments of the casualty industry. It led to the despicable and morally indefensible practice of undisclosed rebates and commission sharing on structured settlement annuity premium, often at the expense of the unwitting plaintiff or their trial lawyer. The seeds for much of the disaffection for structured settlements among the trial lawyers were sewn years ago when many structured settlement firms agreed to get involved in this practice in order to secure guaranteed premium flows from the casualty companies.

This book takes readers into a world of bid-rigging, fraudulent commissions, and secret payoffs, revealing shocking abuses and ominous new trends. Readers will hear about a rogue's gallery of shady executives, including a CEO whose massive claim denial schemes eventually got him fired . . . at great cost to consumers. From the Hurricane Katrina fiasco of unpaid claims, to a revolving door in which former insurance executives regulate their own industry before returning to it themselves, this is a shocking account of an industry on the brink of collapse, and what must be done to fix it before it's too late.

Scott Drake's,  interview with author Eric Gerst on Vulture Culture is featured on Speaking of Jusice, a Legal Broadcast Network show.

If you are in the structured settlement business, claims or insurance management this is a book that your going to be hearing about and is worth your effort to read.

In this weeks edition of Speaking of Settlements we take on the issue of the Vioxx settlement and the recent wave of letters coming out of law firms to claimants on the next steps in the long Vioxx saga.

If you are a Vioxx claimant, or a trial lawyer with Vioxx claims, it is vitally important that clients be aware of medicaid and governmental benefit issues going forward, as well as how to arrange structured settlements for clients who need them.

If you are a Vioxx claimant or have been notified by mail or phone call that you will be receiving an award from the Vioxx settlement fund, you have a very short window of time to make your decision as to whether or not you want to take your payments over time using a structured settlement annuity. Here are the simple steps of the decision process you need to take right now for my firm, Wahlstrom and Associates, or any other firm,  to assist you in that decision:

1. Make sure you have your letter from your law firm or lawyer confirming that you have been awarded an amount in the settlement. Your structured settlement expert will need to know your lawyers name, the office location and what dates they have given you to get your letter back to them as to your decision.

2. Determine if you are on medicaid or medicare for your health insurance. One of the most important areas to plan around is potential liens on your settlement or to avoid being disqualified from future medicaid benefits. Please let your structured settlement expert know right away if you are on either medicare of medicaid!

3. Accurate information about you, your family and your planning needs. Are you retired? Are you on a pension? Does your spouse work or is your spouse potentially on medicare or medicaid as well? All of these questions will need to be asked and answered as they impact how we would allocate your funds and what types of tools we need to employ to maximize the value of your award.

4. What are your immediate cash needs. What bills have mounted up or need to be paid right away. If you decide to structure your payments you will certainly want some amount in cash so give our office some idea of what your immediate needs are. Remember, it is not an all or nothing decision. You can take part in cash and the rest in a structure, in fact that is typically the best way to handle your planning.

5. What your future plans or income needs might be. We will assist you with this planning in our conversations but be thinking about what you might need to pay future bills, expenses or assist family.

Wahlstrom and Associates is open from 8:00 am to 6:00 pm from now until September 19th to assist Vioxx claimants with their decision process. I am sure other structured settlement firms working on the Vioxx case will be extending hours as well.

This is an important one time decision as to what you should do with your Vioxx check so don't waste it by simply paying bills or spending it on items that you won't even need a few months later. Invest that check, use it wisely and contact a trained settlement professional to assist you with this important planning.

I will be releasing a special podcast tomorrow afternoon specifically for Vioxx claimants so check back soon to view that important video podcast on Vioxx settlement options.

In this weeks edition of Speaking of Settlements, I discuss the impact that the mortgage melt down is going to have on the fundamental question of what should a personal injury victim do with their money at settlement.

For the last 25 years I've been helping injured plaintiffs, their families and trial lawyers answer that question and over that time frame I've seen waves of investment mistakes made. Tax shelters in the early 80's, junk bonds and SPDA's in the mid to late 80s, the tech stock boom of the late 1990's and of course the real estate bubble of this decade. In each instance I watched as poorly informed or gullible plaintiffs ignored the exceptional benefits of a structured settlement and instead chased the fad of the moment, only to get clobbered when the market burst and they were left in financial ruin in many instances.

In this video I discuss the following:

1. Structured settlements are still one of the safest, most secure and highest net yield options for settlement dollars.

2. The implosion of the mortgage market has so badly injured the US financial system that we will see a steady wave of bank failures as regional banks bets on bad commercial and residential real estate deals come home to roost. Just this morning we saw the bankruptcy filing of Woodside Homes, a major home builder in the southwest with lenders such as Met Life, John Hancock and NY Life listed as major creditors.In other words keep your bank deposits in amounts under the FDIC protective limits of $100,000.

3. The broad stock market can not possibly have solid gains in a recessionary and inflationary economy.

4. We are about to see massive monetary inflation as a result of the unprecedented bail out of banks, quasi banks such as Fannie Mae and Freddie Mac, with the result being a bond market in long bonds unlike anything we have seen since the late 1970s and early 1980s.

What this means is choices for plaintiffs and attorneys as to what to do with settlement dollars has never been so risky, but neither has the decision to use a structured settlement annuity for your personal injury settlement been clearer.

Watch this week's edition of Speaking of Settlements.

Legal marketing, in the minds of many of us who either market to attorneys or help attorney's promote their services via marketing, is one of the great oxymoron's. It is exceptionally poor marketing and much of what goes on is barely legal.

What passes as trying to market to lawyers for the vast majority of financial, technical and service oriented firms that attempt it, is generally confined to purchasing insanely priced advertisements in bar or trial lawyer publications, making absurdly expensive contributions to these same organizations to get a speaking or writing slot at a national or large state convention, or doing the convention road show circuit where you are reduced to standing in the exhibitor ghetto to pitch your wares to lawyers who are more interested in the free stuff you give away in order to entice them into standing in front of you long enough to shove a card in their hands.

This corrupt, wasteful, demeaning process has evolved into "the industry standard" of how you reach lawyers. Let me ask you, if you are a company that wants to market your services or talents to lawyers, a few questions.

1. How much are you spending to purchase advertising in trade and association magazines and what do you really get out of it? The average budget for the average firm marketing to just trial lawyers, to buy space in the three national magazines, Trial, National Law Journal and American Lawyer, is approximately $5000 for a VERY modest campaign. If you want premium position or full page ad's be prepared to double or triple that number.

2. How much are you spending on State or regional publications? Again, if we break the markets into regions and assume you want to do at least a 5 state buy, a realistic budget for those state publications or to buy space in Lawyers Weekly or a regional paper, you are again at $5000 minimum with the ability to easily double it, particularly in the Northeast or Mid-Atlantic region.

3. How much do you budget to attend trade shows and staff your booth? If you wish to have a consistent presence you need to target Mass Torts Made Perfect, AAJ, ABA conventions at a minimum, which means 6 commitments just with those 3 organizations. If you also want to do a regional purchase, again with 5 states, you will have at least 10 events you need to attend. Lets assume you do at minimum one event per month then. You can not possibly do any event, with travel, booth space, entertainment, lodging and materials for less then $5500 per event and thats low.

So, for a very basic national advertising purchase in media, along with a solid regional media buy, coupled with the required trade show circuit, what is your monthly budget? Approximately $15,000 per month or $180,000 per year!

Lets then throw in the additional "contributions" that most organizations also are required to give to state and national associations to get preferred speaking slots, opportunities to present at meetings, writing in the publications or the coveted preferred vendor designation, and if you can get away from that for less then $50,000 per year you are a better man then I am.

Finally lets toss in the occasional golf tournament, where sponsoring a hole costs you $5000, or annual gala ball or fund raising event and you are probably topping out for everything somewhere around $250,000!

Could someone tell me where this cycle ends and at what point the people marketing to trial lawyers and the bar in general throw up their hands and say " I surrender"? I mean really, how much return can any legal marketer say they are getting for their money when you are pouring in that sort of investment year after year before you have opened up one file, handled one case or sold one item. I realize more then most that you must advertise and that you must support your local and national bar and trial lawyer organizations and I'm not advocating that you stop it all together. However, there is a better way then just pouring money into the black hole.

Lets face it, most people in legal marketing spend with these magazines and organizations out of abject fear that if they don't, their competitors will, and the trial lawyers will black ball them because they stopped spending money with them. Never mind that most people get almost no calls or business off of their ad's in publications or that their contributions amount to nothing once some other competitor offers one dollar more to the association to buy preferred vendor status. No, they have to do it, they have to suffer the indignity of the vendor ghetto because to not do it means you have turned your back on your customers.

I am here to tell you that there is a better way and a better answer and that's The Legal Broadcast Network. 

Imagine if you will, taking some of the money, say about 20% of that $250,000 figure I listed, and allocating to fund a full broadcast channel for the trial lawyers in your state. Or, imagine taking 15% of that number and sponsoring for your best legal clients a channel to market their legal services, with your firms name displayed on all of their audio, video or written commentary. Or better yet, imagine that all of this content actually got READ, VIEWED or LISTENED too, instead of tossed in the garbage or on a coffee table. Or, imagine that this content you helped them create and broadcast was available 24 hours a day, 365 days a year forever!

The fact is you can get out of the ghetto of sponsor hell and you can begin to brand yourself and your best clients on the media where 90% of all new customers are found now, and that's the internet. The only thing holding back most legal marketing firms and lawyers is fear and a sense they are leaving behind the known for the unknown.

Step out of the darkness, leave the ghetto behind and come join the fastest growing, most dynamic means of promoting your firm, your clients and future customers. The Legal Broadcast Network.

Part 1 in a 6 part series on Legal Marketing on the Internet, what in the world do you have to lose?

Are recoveries excludable? It depends on the facts, but also on who you ask. Claims for false imprisonment or wrongful conviction can invoke the common law torts of false imprisonment, malicious prosecution, or abuse of process. Section 1983 allows suits for violation of constitutional rights,plus, twenty-two states, the District of Columbia, and the federal government now have compensation statutes for false imprisonment. Although the tax authorities are not clear about false imprisonment, being unlawfully confined behind bars seems by its very nature physical.  The issue then becomes how does the trial lawyer, settlement professional or state agency determine what information and documentation needs to be gathered to make sure their clients case qualifies as potentially tax free.

For that answer we once again turn this week to Attorney Robert Wood, the principal of Wood & Porter in San Francisco, CA and the nations premier expert in the area of taxable damage issues. Rob is also the host of the newly launched Tax Law Channel, which is sponsored by ATG Trust, and we appreciate his assistance in our month long series on taxable damage cases and how to determine if you can argue effectively for tax free treatment of the award or structured settlement.

Interestingly, payments to the following victims were all excluded from income: (1) survivors of Nazi persecution; (2) U.S. prisoners of war during World War II and the Korean War; and (3) Japanese-Americans placed in internment camps.  Unfortunately, though, the IRS has now declared that tax authority "obsolete" and has left tax experts and trial lawyers feeling in the dark as to whether all cases are taxable or not. Rob in this podcasts seems to indicate their are situations where a solid case can be made to determine a persons award does qualify as tax free under section 104, so if you are involved in these types of cases you have to be sure to listen to this podcast, visit the Tax Law Channel or read his expanded commentary in Tax Notes. 

This podcast with Scott Drake, Mark Wahlstrom, Chairman of the Legal Broadcast Network, and Rob Wood, host of the Tax Law Channel, explores what lawyers and settlement professionals can do to help in this growing field.

Listen to the entire podcast on this weeks Speaking of Settlements by clicking here.


The Article from April 2008 tax notes is available by clicking here.

It is almost Labor Day and for those of us who live in parts of the country where our children have already gone back to school or started fall sports and activities we are visited by the annual scourge of our kids being forced into fund raising for PTO, Football, Cheer, Marching Band, Soccer, etc. You can't approach a grocery store or answer your door on the weekend with out some nervous teenager asking you to support their sport, school or activity. While I think it's good for every kid to have to learn the joys of face to face selling so that they can grow up to choose another line of work, the constant strong arm tactics to raise money by needy organizations reaches a point where you simply stop buying from anyone. I believe they call it donor fatigue.

I was also reminded by a business associate that this is the election cycle for state and federal races, with the added bonus that this is a presidential election year. With this cycle comes the inevitable pleas for money from candidates, but increasingly from other organizations that act as proxy fund raising organizations for national parties. With someone with a foot in both the legal and financial world, I get the "offers to help" from both sides of the political spectrum, with the added emphasis being that to fail in my funding options would be an indication by certain organizations as a lack of faith in their message or mission.

Much as I am worn out from the barrage of teenagers begging for money and for me to buy items I don't really want, I am equally tired and increasingly disgusted by the sum's of money being requested by trial lawyer organizations from legal marketing firms, financial services companies and structured settlement firms. I recently viewed a letter from a President of a State trial lawyer organization to the membership, applauding a financial service firm that has contributed close to $250,000 over a two year period to this state trial lawyers group. Let me be very clear, I'm not saying the trial lawyers don't need the money to fight the deep pockets and huge funding advantage of the tort reform forces, or that this firm that made the contributions did any thing wrong by being so generous. Obviously the advocates of public justice desperately need this money to fight the battle on both the state and federal level. With out these funds they are at a huge disadvantage ,as the forces of tort reform have a "bleed the lawyers white" strategy to exhaust their financial resources and to win the battle. I get it, the trial lawyers absolutely need these funds.

However, in the battle to raise money from any and all sources, I can't help but think that these state and national organizations are losing a part of their soul by taking money from just about anyone who offers it to them. Once the trial lawyers discovered that the factoring, structured settlement, legal finance and lien resolution professions were willing to line up and throw money at state and federal groups, all in return for some implied endorsement of their services, the race to the bottom of the slippery slope began. We now are treated to the spectacle of settlement companies that historically went to great lengths to disenfranchise plaintiffs in the settlement process hosting AAJ events, factoring firms that actively market to blow up sound and sensible financial programs for plaintiffs given "preferred vendor" status, legal finance firms battling to be the lender of choice and lien settlement firms locked in a battle to the death to see who can raise the most money to achieve coveted "preferred vendor" status.

While many of these firms are fine companies and provide excellent service, the buying of an endorsement for cash is unseemly for all parties involved.

My suggestion is as follows:

Get rid of preferred vendor status that is solely based on who pays the state association the most amount of money. I know organizations will state that there are other factors that go into this decision, but lets not pretend for a moment the most important consideration isn't who writes the biggest check. In fact, get rid of preferred vendor status all together. People see it for what it is, a pay off or purchase of an endorsement and all it does is alienate all of the other vendors who were out bid. If the trial lawyer groups plan is to upset and alienate a large group of their natural supporters, they are doing a great job of it under the current system. 

Unfortunately I don't see an end to this cycle, I only see it getting worse, with the donor fatigue and strong arm tactics that use to be part of the defense industry now in full bloom in the plaintiff market. We are going to see some serious mistakes made as a result of the inherent flaws in this process, but I'm afraid its going to take some financial organization with "preferred vendor" status going belly up or making a mess of some big cases to put an end to this insane practice of firms buying their credibility instead of earning it through the quality of their work.

Last week the Legal Broadcast Network was one of the first media outlets to speak with nationally renown entertainment and intellectual property rights lawyer Larry Iser, when news of the suit filed by his client, Jackson Browne hit the wires. This case, while at first glance appears political, it's my opinion that it is really just a very solid copyright infringement case. I attach the entire article for you to read with the note that I really believe we are going to see a lot more of these case in the next few years as lawyers such as Larry Iser move aggressively to protect the long abused muscial and artistic IP of their clients. There is a looming ruling involving the recording industry that will futher strenghten the hand of lawyers protecting clients copyrights so I feel that lawyers and settlement professionals need to further educate themselves in this area and be in a position where they can utilize taxable, non-qualified structured annuities to fund the eventual payouts.

"Jackson Browne has filed a lawsuit today against Senator John McCain and the Republican National Committee in the United States District Court in Los Angeles, California.  The lawsuit stems from a recent television commercial for Senator McCain's presidential bid that incorporates the song Running On Empty.

There have been similar lawsuits in the past from artists like John Mellencamp and Abba for unauthorized use. This suit, filed in U.S. District Court in Los Angeles claims the songs use is a clear infringement of his copyright and will lead people to the conclusion that he somehow endorses McCain.

Browne, a life long avowed liberal " an advocate for social and environmental justice " is noted in the article to have already made prior donations to Senator Obama's campaign and he is clearly upset about the use of the song.

While on it's face this might seem like a politically motivated action by a life time liberal entertainer, it really is much more then that as our interview with Attorney Larry Iser reveals. The ongoing abuse of music and entertainment intellectual property in a post Napster era is an issue that flys under the radar, particularly on the internet where people just assume they can grab a song and use it for their own entertainment and commercial purposes. As you'll hear in the interview, this is part of a long running and consistent pattern of abuse of the copyright laws and the careless attitude of the McCain camp in this instance has caused some of the industry's leading IP lawyers to draw a line in the sand. This is not the last we will hear of this case.

Scott Drake, host of the Legal Broadcast Network daily affairs show, Speaking of Justice, talks with Jackson Browne's attorney...Larry Iser in Santa Monica. California "


Click here to listen to the full podcast with Larry Iser on the Jackson Browne Law suit against John McCain.

The story from the AP

In today's online editon of the Wall Street Journal a story was reported that makes me feel like I'm watching the old Claude Raines character in the classic film, Casablanca. You all remember the scene, where the Nazi's come into Ricks bar and casino and when Raines, who is the local police chief and a regular at the illicit gambling hall, is told that "there is gambling going on here." He professes himself to be Shocked, all while getting paid his winnings. 

I feel like much the same is going on now that the real estate market has utterly collapsed and the insane lending practices of the unregulated mortgage industry are being exposed to the harsh glare of daylight.

The FBI investigation mentioned in the story centers around something that anyone who has lived in the booming southwest knew was going on first hand, much as anyone in Casablanca knew "Ricks" was the place to go for forged transit papers and gambling. That practice was the use by big corporate builders, and even some not so big builders, of having in house mortgage brokerage companies that would package loans and financial options that kept the prices on the builders homes high, but allowed the buyer/borrower to receive incentives as large as $100,000 to purchase the house.

Basically the scheme was for the builder to pay off a buyers car loans, credit cards, student loans, etc, so that their debt ratio and lending profile was dramatically improved and they would then qualify for a substantially larger house and loan then other wise would be possible. The buyer wins in the short term because even though they are paying an inflated price for the house, they are exchanging, off the books, expensive debt for cheap mortgage debt. The only problem is when you buy a house for $400,000 that is only worth $285,000, if it doesn't appreciate, or as is happening now it depreciates, the buyer is so far underwater on the loan it will take years, if not a decade, to catch up in value.

The builder however, who built the house on land he bought years prior at cheap prices, flips a property and books a big gain, the broker gets a huge commission on the inflated mortgage loan, often at a higher then normal commission rate as a pay off to look the other way, and the appraiser goes along for the ride as he can plausibly say that "comps in the area" are consistent with the price.

The problem is it is a massive shell game with huge transaction costs and now the US taxpayer is going to be picking up the tab for these crooks. Too strong a word, you say, crooks? Well, apparently the FBI and the Justice department think so too and as someone who watched this sickening fraud occurring for the last 5 years here in Arizona you have to wonder where in the world were the regulators then. Oh that's right, some of the single largest contributors to house and senate campaigns just happen to be corporate builders, banks and mortgage company's, not to mention their pervasive influence in state and local elections as well.

The fact is a lot of politicians from both parties got fat on the real estate boom and it's fraudulent lending and sales practices, and the lightly regulated mortgage lending business was a haven for con-men, crooks and others looking to flip a property and the eventual liability to the next sucker. 

Now when the politicians in both parties stand up in an election year and and do their best Claude Rains impersonation, saying they are shocked that this could have been going on right under the noses of the state and federal authorities, I suggest taxpayers and the FBI take a line from another Humphrey Bogart movie, The Maltese Falcon. In that one, at the end, Sam Spade is asked what the Falcon is and his reply is the often misquoted " This is the stuff that dreams are made of." Well, the real estate ponzi scheme was the stuff of dreams for years, but now it's a nightmare for the taxpayers and I hope the Justice Department as well as the trial bar take this opportunity to hold the crooks accountable for this disaster rather then letting another round of campaign contributions flush this latest financial sewage away and hope we forget who got us into this mess.

If you are in the settlement industry i'd suggest you sharpen up on the mass tort and non-qualified structure area as we are going to see a massive wave of litigation tied to the billions of dollars in losses from these types of criminal lending practices.