Sheila Birnbaum: The Attorney Behind State Farm's Katrina Scruggs Defense Explains How Major Corporations Can Use the Civil Justice System to Thwart Consumer Rights
I enjoy good lawyering. Corporate America has the best lawyers defending their actions and figuring out how they can be unaccountable for their bad acts. A formidable New York Ivy League trained lawyer, Sheila Birnbaum, is one of those lawyers. I give her, Corporate America, and especially State Farm, all the credit they deserve for showing that they can beat State Farm’s customers and their attorneys in the appellate courts of America. Birnbaum implied that large corporations have greater influence over federal courts of appeal in her webinar with the Washington Legal Foundation last year.
The Washington Legal Foundation is one of those “ultra conservative” tobacco, manufacturing, and insurance interest dominated “think tanks” that espouses legal theories that limit consumer interests. Insurance defense firms and lobbying groups use these groups for propaganda. They try to get their board members appointed to government and judicial positions. Unless you are supported by one of these groups or you represent those product manufacturers, you could not dispute me. This group is as much anti-consumer as communists are anti-capitalist.
These groups use their vast financial resources to substantially affect our laws, even though they have no vote or legitimate need to affect public policy and the rights of millions of consumers. They hire the most highly paid lawyers, like Sheila Birnbaum. So long as these corporate interest groups are allowed to use their money to influence politicians and the media, Americans will always have the problem of their government ultimately working for the corporations and against their best interests. British Tories were the “corporate interests” at the time of the American Revolution, and corporations represented by lawyers like Birnbaum are the new American Tories of the twenty-first century. Their law firms pretend to do good while they rake-in millions from corporate representation, public relations advertisements, political support, and corporate propaganda. Individual and consumer interests have much less affluent financial political help. Guess who is winning?
Over the weekend, I came across a webinar by the Washington Legal Foundation featuring Sheila Birnbaum. I first thought that Slabbed would have noted this. But, I searched the term “Birnbaum” on Slabbed search and found the following five posts:
- Kodrin v State Farm: a Writ with its wits about it
- The Jawbone of an Ass: Unbridled Arrogance and Regulatory Capture at the NAIC
- Cat scratch fever strikes insurance industry – State Farm has bad case
- The House is Burning Down and Methuselah is Bitching a Blue Streak
- Hello! Hello! Is this the party to whom I am speaking?
None of these were what I found on the video I reviewed. Instead, the video was quite revealing regarding the impressions of Ms. Birnbaum. The main points in her webinar start at minute thirty-eight and end at minute forty-four in the webinar. (Click here to view the video).
My impression from her primary points of the Webinar regarding the State Farm Katrina litigation were:
- Conduct previously thought was Civil could be made as Criminal by the Insurer’s Conduct.
- Corporations must have a coordinated defense. Somebody in the insurance corporation must know all the facts and the “big picture.”
- Insurance Corporations must pursue facts in “dogged” manner and in the face of overwhelming obstacles.
- Must be willing to persevere after a loss at a trial level to get to judges willing to listen to the legal issues that could be won. She mentioned the Fifth Circuit which most now think is dominated by jurists appointed by interests that support corporations rather than individuals.
- Prepare for media attention. Cannot sit idle with “no comment” while awaiting resolution from the judicial system.
- Cannot be cautious but pro-active. Example: Go to the Federal Courts where they gave injunctions to State Farm that may not have been given by State Courts.
- Respond to the media. You cannot sit idle waiting for resolution to tell your story.
- “Luck” is important. Scruggs’ problems with unrelated bribery charges helped State Farm’s perception in Court and the media.
I am not a person loved by insurance companies trying to escape accountability for harming others. They wield significant financial resources not unlike those that many in this Country were trying to escape from at the time of our Country’s formation. State Farm may have found comfort in a worthy advocate from New York. Yet, many long-time State Farm customers along the Mississippi Coast know exactly where they stand when it comes to promises of “being there,” when ads require reality rather than just hype.
We at Washington Legal Foundation are pleased that you came across the Web Seminar we hosted featuring Sheila Birnbaum and appreciate the coverage you have given it in your blog. For the sake of accuracy, I wanted to note that WLF did not "hire" or compensate Ms. Birnbaum for her appearance in our Web Seminar program; just like all of the other private lawyers, academics, and other legal professionals who work with WLF, she appeared on a pro bono basis.
Our search may have missed one or two but we definitely missed the webinar - so I'll just "borrow" and cross-post.
I have a great quote from Ms. Birnbaum filed in one of those "special places" that I think I'll remember and never do! It's about State Farm litigation and it ends with her saying "it will take a long time and the law won't always be on your side".
Chip --You never cease to amaze me with your right-on-the-money posts. Sheila has been a behind the scenes powerhouse/engineer of the strategic campaign to neuter the deterrent function of the tort system for more than 30 years.
In 1986 she served along with Hank Greenberg on then NYS Governor Cuomo's Advisory Commission on Liability Insurance. The Commission issued recommendations on April 17th, 1986 that included most of the tort "reform" concepts that many states have adopted. I did my best as a newbie assigned by the head of the Consumer Protection Board that I worked for at the time to counter the industry "data" and dissent to the report recommendations.
The strategy Birnbaum's clients used then is the same one they use today; Create a market disturbance (pull out of a specific line or region and/or raise rates precipitously) then get non-insurance interests to point the finger at the trial bar and push for tort reform. Birnbaum's name is on many of the industry amicus briefs that UP amicus briefs counter.
The plan is for United Policyholders to continue to grow as a counterpoint data source to Birnbaum and her proteges.
Nowducit and Amy,
I ran across the webinar while researching issues pertaining to State Farm's profitability in Florida. A lawyer for an insurance company firm wrote an article espousing State Farm's position which was published by the Washington Legal Foundation.
As I was researching the Washington Legal Foundation, I saw they had webinars. Sheila Birnbaum was speaking regarding Katrina litigation lessons. I feel it is important to understand what my opponents think and simply wanted to share.
After reading my post again, I felt I may have "bashed" corporate America too much. Many good activities are done all the time by employees and management of corporations. Corporate America can be very efficient getting things done,and do so in many charities. Many corporations act responsibly and are very good corporate citizens as required by most state charters. Unfortunately, some use "good deeds" to cover up a campaign clearly for corporate financial interests.
And, I wish people like Ms. Birnbaum used their considerable talents for people and a safer society. The truth is that her message contains extraordinary propaganda and is clever. The message and reaction fits the corporate interests of her clients rather than the individual concerns of humans.
For example, corporations can instill cultural ladders for those that are beholden to the corporation's interests by essentially getting their own appointed to political or judicial posts. Individuals simply lack the organizational, financial and logistical means to be that strategic over such a long period of time. The legal strategy to suggest that her clients wait for a more favorable legal venue where some of the judges were appointed with those long term ladders made sense. However, I hate to admit the implication that justice can be, in a sense, legally purchased.
Regardless, I came across the webinar and I simply wanted to share it. It gave me a better appreciation of her viewpoint and what she was reporting to State Farm. For me, there will be other battles in other venues with those following her suggestions. It helps to learn and be prepared.
Glenn,
You're welcome!
Thank you for sponsoring the webinar.
Come on, Chip, of course "justice" is "legally purchased"....in more than the scenario you described:
"...corporations can instill cultural ladders for those that are beholden to the corporation's interests by essentially getting their own appointed to political or judicial posts...The legal strategy to suggest that her clients wait for a more favorable legal venue where some of the judges were appointed with those long term ladders made sense. However, I hate to admit the implication that justice can be, in a sense, legally purchased."
John Grisham eloquently wrote about the above scenario in "The Appeal." Great book! Won't ruin it for you, but it took place in Miss.!!!! Can you fathom that things like that would happen there? ha, ha.
YOU GOTTA READ IT!
Ok, so Atty. Birnbaum is to "corporate America" what you are to policyholders! :) Lady's got to earn a living and corporate America is entitled to competent legal representation as well. Of course we're not happy about it -just like she's not happy about you.
That's what makes the world go round and round, round and round.....
SHIRLEY HEFLIN
Perhaps attorneys, and others with legal expertise, should reflect on why a career centered around law is so important for them to fulfill.
Ones might ask themselves, regarding their use of their own natural and acquired skills:
Are they honestly and truly standing for the general public good ...or just their own?
I agree w/you, Mr. Poe. It works both ways. We could even say the same about the MEDICAL field though and why doctors are so "entralled" w/their chosen profession.
"IN THE BEGINNING" (i.e., when one is in law and/or medical school) barely scraping by, hanging by a thread (some students anyway)and also "hanging" by the notion that "ONE DAY" they'll be able to "help people." Well, "IN THE BEGINNING" they did help people, however, once they acquired their experience and those incomes got BIGGER, their "HELP" becomes more expensive and those they helped before may not "make the cut" now.
Those were the "IDEALISTIC DAYS."
That's, IMHO, as my friend at SLABBED would say. Hey Sop!
SHIRLEY HEFLIN