< class="art-postheader">Response to Joe Nocera’s “BP Makes Amends” Op-Ed Piece in the New York Times

I was a little alarmed to see an op-ed piece in the New York Times this week called “BP Makes Amends,” by Joe Nocera. In this piece, Nocera demonstrates his complete ignorance of the workings of the tort system, criticizes Americans for exercising their Constitutional right to request a jury trial, and perpetuates the myth that everything is A-Okay on the Gulf Coast.

Of course BP is liable, and everybody knows they are liable to some extent. What Nocera doesn’t understand is that there are different degrees of liability and different ways to apportion fault. For example, is BP liable for negligence or gross negligence? Legally and financially, there’s a pretty big difference. If the court finds BP to be grossly negligent, BP could be liable for damages closer to $70 billion dollars than $20 billion–that’s a $50 billion dollar difference.

This huge difference is the reason why BP has been running around pointing fingers at other involved parties. In this trial, BP will pull out all the stops to try to prove that a series of accidents or negligent acts and omissions by other entities contributed to the accident. If they can successfully do this, they can both avoid a gross negligence ruling AND reduce their share of blame.

Which brings me to the second reason why there’s a problem with Nocera’s piece–Nocera acts as if BP is the only corporation who is a defendant in this trial. The reality is, a number of parties have been sued, and this trial will determine who is liable for what and for how much. Generally, trials like this apportion a percentage of liability to each defendant, and then the total damages are split according to the percentage of guilt assigned to each party.

For example, the court could find that BP was 80% liable, Defendant B was 10% liable, and Defendant C was 10% liable. All the damage awards go into one big pot, and the percentage of liability each party is assigned determines how much of the total damages they have to pay. So BP stands to significantly reduce damages by pointing fingers and trying to prove that other parties were also to blame. That’s what this trial is about. It is not about whether or not someone was liable–that’s a given. It’s about who has to pay for what, and how much is it going to cost them.

Nocera also says: “Indeed, the whole point of the Gulf Coast fund is to keep cases out of court; in return for compensation, the claimants have to agree not to sue for further damages.” He insists the fund is good for claimants because it’s supposed to be a quick and easy way to get money fast without hiring a lawyer and waiting months or years for a court date. But the reality is, it’s also a GREAT strategy for BP because it allows BP to limit their damages. Claimants may not know the full extent of the damages until long after they’ve accepted BP’s fast money and waived the right to sue in the future. But since BP has stopped the liability flow with a fast payout, BP is off the hook for the true damage amount moving forward.  Make no mistake–that’s what BP was counting on when it agreed to establish the $20 billion dollar fund.  The claims fund is BP’s most powerful vehicle for limiting its own liability. The reasons behind its creation were not altogether altruistic, as BP and Nocera would have you believe.

Moving on, Nocera also implies that claimants are somehow wrong for opting out of a fund payment in favor of an actual trial with an actual independent third party who examines the actual evidence. Americans have a Seventh Amendment Constitutional right to request a jury trial for civil harm. There is absolutely nothing wrong with exercising a Constitutional right to a jury trial. It is a right that our ancestors fought and died for.

Moreover, if there were no citizens who wanted to sue, there would be no lawyers bringing the litigation. I know more unemployed lawyers than I can count on all my fingers and toes who are out of work for lack of clients. If there is an army of lawyers demanding compensation to be allocated by a jury and not by Feinberg, that is because there is an army of angry Americans who feel like the BP claims fund payouts aren’t fair.

Lawyers in tort claims such as this one almost always go to bat for free (expending substantial time and financial resources up front) and get paid a percentage of the damages when they win for the client. In this way, even the poorest plaintiffs who cannot afford to pay for court costs up front can take advantage of the legal system to find justice. So of course part of the damages are going to go to the attorneys. That is how lawyers eat. If lawyers didn’t eat, corporations like BP would run the world and would never be held liable for negligent acts.

Finally, the Gulf Coast is not shiny, clean, and good as new.  Citizen photographers like Laurel Lockamy, Charles Taylor, Michele Walker Harmon, Denise Rednour, Laurie Lambert, and others still capture images of fresh oil and suspicious foam washing up on a regular basis. A quick search on YouTube or Facebook will turn up their videos and photographs. The tourist areas may appear to be clean, but many other areas are still oiled.

Nocera, you simply have it all wrong.

–I would like to thank The Alabama Oil Spill Aftermath Coalition for spotting the NYT article in the first place, for speaking out against it, and for being outstanding warriors for the cause!  Please also check out alabamashrimpfestival.com!

Find out more about the legal thriller, Black Oil, Red Blood here. A portion of the proceeds benefits Gulf People Helping People. Read for fun and help out a good cause.