Earwigging for Some but Not Others in Federal Courts?

In Richard Sobol’s book Bending the Law: The Story of the Dalkon Shield Bankruptcy , a rather momentous example of earwigging of a federal district court judge is described.

In the Preface to the book, Mr. Sobol describes how A. H. Robins Company, the manufacturer of the Dalkon Shield, sought to consolidate the Dalkon Shield Litigation in the federal court in Richmond, Virginia before District Judge Robert R. Merhige, Jr., a local law school graduate of the University of Richmond, and an "enthusiastic booster of both the city and the university."

The efforts to consolidate had been opposed. Robins "finally achieved the consolidation of the Dalkon Shield litigation in Richmond before Judge Merhige by filing for bankruptcy." Mr. Sobol reported Judge Merhige "is a neighbor of E. Claiborne Robins, Sr., who is a celebrated figure in Richmond. Three weeks before the bankruptcy filing, Merhige met in his home with Robins, Sr., and E. Claiborne Robins, Jr., the president of A.H. Robins, to discuss the company’s plans with respect to bankruptcy."

The rest is history. The liabilities of the company and its officers, directors, attorneys and insurer were transferred "to a trust with limited funding, and to allow the Robin’s shareholders to be paid the value of the company in excess of the fund before it could be determined whether the individual entitlements of the women injured by the Dalkon Shield exceeded the amount of the fund, or indeed, the total value of the company."

Thus, it might be contended there there are differing standards regarding earwigging and its progeny from case to case in federal court.

One would have had a different view, maybe a more enlightened view, of the Scruggs sentencings had Judge Biggers made some mention of the A. H. Robins - Merhige earwigging. I wonder if he would have found a difference between it and the initial earwigging of Judge Lackey by Timothy Balducci to get the Jones case sent to arbitration?

Earwigging is Lobbying (And Judicial Corruption)

It seems clear the judicial culture in Mississippi commonly accepted the cultural phenomenon of earwigging. To earwig a judge means to talk privately with a judge about common things between the judge and the talker, to influence, to get a judge to go the way of the earwigger.

Earwigging is lobbying. It is similar to the efforts a lobbyist makes to sway legislator to the lobbyist's point of view. It is private and it is personal. More often than not it does not involve bribery. And, of course it does not have to involve bribery.

A few days ago, a New York lawyer, David Boies, in an interview with the Wall Street Journal Law Blog reporters said this:

I tried some cases before Mississippi state court judges who were just great,and I also tried cases in front of Mississippi judges who were just terrible. There is undoubtedly some real corruption – where a judge does something for money or favors. But I think that is a very small problem in Mississippi, and a tiny problem in most places. The bigger problem is where judges do things because they know the people, because they like the people, because they’re comfortable with the people. That’s a much more difficult thing to get your arms around, partly because its human nature. And the problem’s not unique to Mississippi. [Emphasis added.]

To earwig means, in its essence, to play on the human frailty of liking people whom we think are our friends, people we feel comfortable with, our hunting buddies, our golf buddies, our lawyer group buddies, the "brothers" in those "fraternities" of which we like to think we are a part.