Wood LLP is one of the nation's premier boutique tax firms concentrating in areas of specific interest to trial lawyers, insurance companies and others concerned with tax issues related to settlements and litigation
Attorney Robert Wood of the firm Wood and Porter joins host Mark Wahlstrom for a segment on Speaking of Settlements to discuss the efforts of several tax law professors to raise the issue of whether it is fair or equitable for attorney's to enjoy the ability to structure or defer their fees.
More information on this paper written in Tax Notes is available on both www.thesettlementchannel.com and www.taxlawchannel.squarespace.com Listen as Rob Wood disputes this attack on structured legal fees and assists settlement professionals and tax lawyers in working through the process of taking advantage of this outstanding tax deferral tool.
In this weeks edition of Speaking of Settlements noted tax law expert Attorney Rob Wood of the firm Wood & Porter. Rob discusses a recent article by two university professors who have decided to create an intellectual argument that structured legal fees are "too good of a deal" for trial lawyers.
They published in Tax Notes just last week on June 2, 2009 a critique of the reasoning in the long settled Childs case, indicating that the trial lawyers have gotten too good of a deal and that in the interest of creating a more fair tax burden that this ability to structure income over time should be curtailed.
As you'll hear in this broadcast, the actual risk of a legislative reversal of Child's is pretty low, but the fact that there are academics out there looking at this as an equity issue in taxation indicates that we need to be both vigilant in making the case for the fairness of structured legal fees, but also promote them more heavily as the great deal that they are.
Check our side bar for pdf copies of this tax note case as well as other commentary by Rob Wood.
Brad Bannon's writes about the Sotomayor confirmation hearings in this commentary from US News and World Report:
Scott Drake interviews Brad Bannon in the accompanying video.
Brad Bannon is president of Bannon Communications Research, a political consulting and polling firm that works for Democrats, labor unions, and progressive-issue groups.
Sonia Sotomayor is exactly the person that the Supreme Court needs. She is a distinguished jurist and will be the first Latina to serve on the Supreme Court. As a bonus, she will improve female representation on the Court and, because of her background as a poor kid from the Bronx, she will give voice to the millions of Americans who are struggling economically to keep their heads above water.
President Obama's appointment of Judge Sotomayor to the vacancy on the U.S. Supreme Court will also begin the culture wars in earnest.
Actually, the first shot in the culture wars was President Obama's response to antiabortion advocates who boycotted his appearance at Notre Dame University's commencement ceremony. In his speech, the president tried to find common ground between the pro-choice and pro-life forces. His attempt to moderate the culture war contrasts with his economic program, where the president has gone full steam ahead without compromises that would lessen Republican opposition.
The contrast between the president's approach to social and to economic policy reflects Democratic confidence in its strength on bread-and-butter issues and a defensiveness on cultural issues.
Even though Democrats usually win battles on the economic front, their track record in culture wars are not nearly as good. Since the 1960s, Republicans have successfully used the social issues to drive a wedge between blue-collar union members and the Democratic Party with a steady diet of guns, God, and gays. And even now, after getting Congress to pass his stimulus program, the president not been able to prevent NRA supporters in the Senate from attaching pro-gun riders to important pieces of legislation.
But after three months of focusing on the economy like the proverbial laser beam, the Sotomayor confirmation hearings will force the president to fight the culture wars whether he wants to or not. Since Massachusetts legalized gay marriage four years ago, the focus of the culture wars has moved from abortion to gay rights.
This week, the California Supreme Court upheld the voter ban on gay marriage that passed last year. This case is likely to get to the Supreme Court, so the Republicans in the Senate will probably focus on Judge Sotomayor's positions on same-sex marriage. The judge will probably be noncommittal on the subject to avoid prejudicing future cases, but the left and right will press her on the ramifications of the California case.
The GOP is chomping at the bit for a fight over Judge Sotomayor, even though Republicans know they will lose the confirmation battle. They will fight the nomination anyway because it energizes the base, helps them raise money, and puts Democrats, including the president, on the defensive. So expect the Senate Republicans to fight Judge Sotomayor tooth and nail.
But the GOP should be wary of the demons that fly out of Pandora's box during the confirmation hearings. Although the culture wars have not been kind to the Democrats in the past, they may become an advantage for the party.
Support for gay marriage has increased significantly in the last few years and a clear majority of Americans under 40 support same-sex marriage. As the millennial voters make up more of the electorate, support for gay marriage will increase. Voters under 30 voted for Barack Obama last year, and the GOP is in danger of losing a group that could give Republicans fits for a whole generation. Young voters are very liberal socially and GOP opposition to gay marriage will drive a wedge between the party and the fasting-growing segment of the voter pool.
Gay marriage has been legal in Massachusetts for four years and it clearly has not shaken the cultural foundations of the state. As more and more states like Vermont and Iowa legalize same-sex marriage, more and more voters will get used to the idea.
Cultural issues have backed the GOP into a corner. The problem for Republicans is that the party's base is shrinking because of moderate defections. As moderates leave the party, it becomes even more conservative, which in turn causes the GOP to lose even more moderates. So the GOP's focus on cultural issues during Judge Sotomayor's confirmation battle will make the party appear even more conservative and drive even more millennial voters out of the party.
If Republicans don't stop this vicious circle and get their act together, they party will go into the wilderness where Democrats have spent most of the last 40 years. The GOP's challenge starts with its handling of confirmation battle over Judge Sotomayor.
Confirmation hearings are inevitably an invitation to behave badly. Something about the bright lights of the Senate judiciary committee brings out the worst in people. Legal thinkers who are otherwise reasonable and intelligent somehow become great big puddles of snarling, hateful id. I think Democrats made a mistake when they accused Chief Justice John Roberts and Justice Samuel Alito of being misogynists and racists at their confirmation hearings. And Republicans are poised to make the same mistake when they attack Obama's Supreme Court nominee, Sonia Sotomayor, as a "liberal judicial activist of the first order who thinks her own personal political agenda is more important that the law as written," as Wendy Long, of the Judicial Confirmation Network, did today. (Don't those phrases ever get old? Don't these people own a thesaurus?)
Undaunted by the hyperbole that festers beneath her hyperbole, Long then went on to condemn Sotomayor for somehow aiding and abetting the 9/11 attackers with her decision in the controversial New Haven, Conn., firefighters case: "On September 11, America saw firsthand the vital role of America's firefighters in protecting our citizens. They put their lives on the line for her and the other citizens of New York and the nation. But Judge Sotomayor would sacrifice their claims to fair treatment in employment promotions to racial preferences and quotas." So just to get this straight: Sotomayor isn't just a far-left activist, she's also out to destroy firefighting?
The case against Sotomayor—to the extent it's being made, is that her life is such a tumultuous blend of personal hardship and deep feeling that she cannot separate the law from her own agenda. In short, she feels too much.
Washington Post columnist Charles Krauthammer was also quick to condemn Sotomayor on Fox News today, warning that her "concern for certain ethnicities overrides justice." And even though Sotomayor has decided only a single abortion case (against the abortion-rights side), Charmaine Yoest, president of Americans United for Life, rushed to describe her as "a radical pick" who "believes the role of the court is to set policy which is exactly the philosophy that led to the Supreme Court turning into the National Abortion Control Board."
If the Republican attack on Sotomayor is really going to consist of scattershot claims that she is too female and ethnic to be truly fair or impartial, it will be a losing demographic battle. Recall that 67 percent of Hispanics and 58 percent of women voted for Obama in 2008, along with 96 percent of blacks. Folks across the political spectrum may wish that Obama hadn't opened the door to discussions of the complicated connection between experience and judicial "empathy." But now that we are there, it simply has to be a mistake for her opponents to attack Sotomayor as someone who is just too darn human to sit on a court.
For one thing, such outbursts tend to offend other humans.
Moreover, the case against Sotomayor on this front is so ideologically loaded, and selective, that it quickly starts to look hypocritical. Why did Republicans treat Samuel Alito's blue collar upbringing as a great humanizing factor in his confirmation hearings? Why did they deem Clarence Thomas' childhood poverty an advantage, whereas they now cast Sotomayor's as a handicap?
Instead of wading into a bruising identity politics war they cannot possibly win, conservatives—even the angriest conservatives—should wade into Sotomayor's vast legal writings. There are hundreds of cases for them to read and parse and quote out of context. Let's have this confirmation battle on the merits, rather than in the sinkhole of unfounded character attacks. The real problem for Sotomayor's opponents is that anyone who has closely read her opinions won't find much to build a case on. As the indefatigable team at SCOTUSblog has chronicled here and here, on the appeals court, Judge Sotomayor has taken a fairly moderate, text-based approach to the cases before her, placing her much closer to retiring Justice David Souter than to the late Justice William Brennan on the judicial activism spectrum.
She has been overturned three times at the Supreme Court, and may well be again soon.But she was also a state* prosecutor, a corporate lawyer, and a Bush I appointee to the federal bench. As the White House points out in its talking points today, "In cases where Sotomayor and at least one judge appointed by a Republican president were on the three-judge panel, Sotomayor and the Republican appointee(s) agreed on the outcome 95% of the time."
What evidence does anyone anywhere have that Sotomayor has spent her career departing from the letter of the law to impose her personal preferences? Her participation in the (poorly handled) decision in the New Haven firefighters case was anything but judicial activism, much as it will be spun as symbolic of her lifelong hatred of white men. On a conference call with reporters today, a senior administration official noted that in the New Haven case, Judge Sotomayor did nothing more than apply the case law: "You can't say she's a judicial activist and then criticize her for applying 2nd Circuit precedent." Her judicial record reveals a lot more humility than hubris.
Sotomayor will also draw heat in the coming weeks for a speech she made in 2002 at the University of California at Berkeley. Talking about the effect of race and gender on judicial decision-making, Sotomayor said, "I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life." She also said that "the aspiration to impartiality is just that—it's an aspiration because it denies the fact that we are by our experiences making different choices than others. Not all women or people of color, in all or some circumstances or indeed in any particular case or circumstance but enough people of color in enough cases, will make a difference in the process of judging." That seems a particularly thoughtful observation, in the context of a long and thoughtful meditation on the role of personal experiences in judicial thinking. Sotomayor never pretends to know better than white men, and she doesn't purport to speak for all Latinos or all women. She merely believes that different judges make a difference in judging. And if you strip away all the rage of the identity politics wars, that point is irrefutable.
The angry screeching from the right that Judge Sotomayor is too emotional to fairly apply the law is already starting to sound, well, hysterical. And the fun is only just beginning.
In Maryland earlier this month, a Montgomery County judge in a powerful strike against Med Mal caps, declined to cap the non-economic damages in a multimillion-dollar medical malpractice verdict, saying the state's limit on such awards applies only to lawsuits that were first submitted to arbitration.
As any trial lawyer, particularly those involved in medical malpractice is aware, the wave of damage limits and med mal caps that swept through the states in the 1990s and early part of the new century profoundly impacted the types of cases attorney's would take on. The steady chipping away at these caps in court and in the legislature now that people see the impact it has on equitable reimbursement to injured parties for damages is a story we will be following for the rest of 2009.
Scott Drake talks with the plaintiff's attorney Patrick Malone about how this case was handled, the implications on medical malpractice in Maryland and whether or not this represents a major change in how the courts look at caps:
Wednesday, June 17, 2009 at 01:31PM 
Attorney Robert Wood of the firm Wood and Porter joins host Mark Wahlstrom for a segment on Speaking of Settlements to discuss the efforts of several tax law professors to raise the issue of whether it is fair or equitable for attorney's to enjoy the ability to structure or defer their fees.
