The Fen Phen mistrial. Would someone wake up the trial lawyers please?

In what is one more sad, sordid story involving the misconduct of trial lawyers in handling a large settlement, it was announced this week that the three defendant attorneys, Melbourne Mills, Shirley Cunningham, Jr. and William Gallion got some partially good news in that Mills was acquitted in federal court of the counts against him and that Gallion and Cunningham are heading back to trial after the jury deadlocked on their cases. The genesis of this case was the 2001 Fen phen settlement and a contested $65 million that it is alleged the attorneys defrauded their clients out of.  ALeqM5gbnyJrPWMRpIMvVtz6LJ6RMQ8tog

Mills is renown for his attorney's rather unique defense of his being " a bad alcoholic" and thus unable to have criminal intent at the time of the alleged misdeeds in handling the $200 million Fen Phen settlement for the a group of over 425 plaintiffs in the state of Kentucky. Apparently in some cases and in some states it pays to get liquored up before you get lawyered up as the jury saw fit to release him. 

As anyone who has read some of my other commentary on this I have no axe to grind in this matter other then it is obvious the business practices and ethical standards of these attorneys were deplorable. However, from the words of the jury foreman, who gave extensive interviews after the hung jury, it is pretty clear that the government had put on a weak case, might have over reached in some of it's charges and in the most damning element, the jury felt that there were other people who should have been indicted instead of these three men.  In the words of the jury foreman Donald Rainone, " There's a lot of people that had their hand in this and there is a lot of people that should have been on trial that weren't." He declined to mentioned exactly who else should have been on trial besides these three men, saying wisely that " he didn't want to get sued."  ALeqM5jUAP1JxMqrpgEgb9LHRFhOIwsM-A

Hmmmm. I wonder if he could be talking about some of the other key players in this case, powerfully connected players who were not indicted but who were instrumental in the negotiation of this case and it's approval. The empty chair in the courtroom obviously was a powerful force in getting at least one of these guys off the hook.

Anyways, it is obvious that the government was out lawyered and as the jury foreman said, was un-prepared and didn't have a strong case. The jury was deadlocked at acquittal for the other two at 10-2 so it's pretty clear the sentiment was to let these guys walk, no matter how egregious the behavior.

 Look, the bottom line on this is that these guys are already facing a $42 million verdict from their former clients in civil court, so it's not like they are going to walk away from this financially unscathed, and all three have been sitting in jail on huge bond amounts, amounts that now will likely be subject to reduction as the retrial proceeds. Their careers are ruined, reputations tarnished and if the civil justice system works, ( a big if I might add) they will have been force to some degree to disgorge their profits.  ALeqM5hqjyqpDu0Zjgw5ELGG4NSuyzv7WQ

What makes this case so sickening and sad is that it was totally and completely avoidable if these guys had used a simple device such as a 468b qualified settlement fund, which if it had been used, would have provided complete transparency as to how this was structured and they would have been forced by the terms of the trust to make a full and complete report of the allocations, accounting and payments to the trust beneficiaries. Clearly in this case these guys didn't want the money trail to see the light of day, but if the trial court or the defendants had insisted on the use of this trust, the temptation to work back door deals, pour money into "charitable ventures" and set up life time payments to the inside circle of lawyers and advisors wouldn't have been there. 

The trial bar, both defense and plaintiff, needs to get their collective heads out of their you know whats and begin to look at the process by which cases are negotiated and settled, and start to  rebuild the process so as to have the current best practices and transparency of the money trail. Until they do we will continue to see these appalling cases and spectacles that only further erode public confidence in the civil litigation system.