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While we all hope that the jurists who serve in the civil justice system of the United States are impartial, neutral, and otherwise resistant to extra-judicial attempts to affect the outcome of legal proceedings, is this a realistic expectation?

The question occurred to me yesterday as I was called to jury duty in a civil trial involving an injury to a young child.  It is rare for an attorney to be chosen to sit on a jury, and alas, I was eventually dismissed. I suspect I was passed over by both the plaintiff and defense because of a bias, perceived or otherwise, that counsel assumed I brought to the table.

As an attorney, I have represented both injury victims and Fortune 100 companies. I’d like to think that I see both sides and could make an impartial determination, but could I? Complicating matters was the fact that I was familiar with plaintiff counsel in the case, a talented local lawyer if one can get past his billboards, and I also had personal and professional relationships with many attorneys on the defense team. Again, I felt I could surely render an objective opinion as a juror. They did not.

This brings me to Judges Clement, Southwick, Dennis, Davis and Garza of the United States Court of Appeals for the 5th Circuit in New Orleans. These judges make up two panels hearing appellate complaints by BP that the company has been unfairly abused in the BP Deepwater Horizon Court Supervised Settlement Program overseen by District Court Judge Carl Barbier. What by all accounts is a well written, clear and unambiguous memorialization in 1,200 pages of a fair and reasonable settlement agreement, is being relitigated in the court of public opinion through a massive advertising and PR campaign by the British oil major.

BP runs daily newspaper ads in the Wall Street Journal, New York Times, Washington Post and elsewhere alleging that the court supervising payment of claims, as well as the court appointed claims administrator, have misinterpreted key provisions of the settlement agreement, allowing for hundreds of millions of dollars in windfall payments being made to undeserving claimants.  Trial Judge Barbier has already rejected BP’s argument on numerous occasions, recently opining:

“BP accuses the Claims Administrator of ‘rewriting’ and ‘systematically disregarding’ the Settlement Agreement. To the contrary, if anyone is attempting to rewrite or disregard the unambiguous terms of the Settlement Agreement, it is counsel for BP.

Frankly, it is surprising that the same counsel who represented BP during the settlement negotiations, participated in drafting the final Settlement Agreement, and then strenuously advocated for approval of the settlement before this Court, now come to this Court and the Fifth Circuit Court of Appeals and contradict everything they have previously done or said on this issue. Such actions are deeply disappointing.”

So all observers were shocked last week when Judge Clement and Judge Southwick called into question Judge Barbier’s ruling above and ordered him to revisit the issue of causation.

What could cause a court made up of some of the most well educated and talented judges in the country to seemingly disregard a contract entered into by a group of attorneys who are no doubt as highly educated, talented and experienced as the justices, but who claim to have been duped into signing a contract they did not understand? It is almost laughable if it were not so potentially tragic for thousands of small business owners across the Gulf.

I am hopeful that this remand is nothing more than making certain that the trial court covers all of the bases, crosses the t’s and dots the i’s. Contract law is very clear that when an agreement is unambiguous, it is not to be disturbed with the benefit of hindsight. To do otherwise is to doom the effectiveness of agreements and our confidence in same forevermore.

But is there something else at work here? Is it possible that BP’s well oiled money and PR machine has purchased a form of justice only the company could be satisfied with? Reports have BP spending over $500 million dollars on those ads. Why would the company spend so much unless it thought it would have a beneficial impact on the outcome.

I am not a conspiracy theorist at heart, and I do not believe that any of the astute judges on the 5th Circuit have intentionally bought into BP’s “woe-is-us” media campaign. But if this were a jury, would I pick any of them? Not if they have seen BP’s ads.

Finally, this is a great radio interview with Loyola University College of Law Professor Blaine G. LeCesne discussing these issues. It is well worth your 30 minutes.

Headline Image Source: (CC BY-SA 3.0) Unisouth/Wikimedia Commons


  1. Gravatar for Jon Lewis

    Good post! I still find it mind boggling to think that these Judges would let BP out of a settlement agreement they helped write and agreed to.

  2. Gravatar for Gary Avery

    What if the small business like mine that lost so much revenue and had to file for bankruptcy, put adds in papers all over the US and told the world their horror story how the bp oil spill ruint other lively

    hood past and future!

  3. That's the horror Gary. Our side simply does not have the financial wherewithal to influence public opinion through $500 million advertising buys. While the truth is on our side, we cannot afford to tell it.

  4. Gravatar for Rob Hinchliffe

    I propose the following as a "meeting in the middle"...through discovery it be determined how much BP spent on advertising during this whole fiasco and determine that amount as the total settlement fund. The sad part is if they were pouring as much money into the claims as they were the PR then I suspect they would be very close to meeting their legal obligation.

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