Archive for August, 2008

American Progress

Friday, August 29th, 2008

Allan cuts my hair and has for years. Nice guy. He does a good job, considering what he has to work with. We invariably talk about things trivial and weighty, and while we’re different politically and socially, we share wicked senses of humor and fundamental respect for differences.

So Allan and I fell to talking about the presidential contest. I’ll probably misquote him, but the dialogue went something like this:

“I’m a life-long Republican,” he volunteered,  “Still have to admit that I would enjoy the hell out of watching a black couple walk into the white house, ” he added.

“Through the front door?” I asked.  “And not even wearing uniforms?” I deadpanned.

We both broke into laughter. I suppose some would label the exchange inappropriate, politically incorrect, or–worst of all–sophomoric.  Still it was a great moment.

See, we’re both old enough to know that this is something that is profoundly different.

I have to say that I wept last night watching Senator Obama’s acceptance speech.  Don’t misunderstand me. This isn’t about the candidate. Truth is that I have questions about his candidacy.  I don’t share a number of his views and poisitions.

Nope, it’s about us.

Even though I am only middle-aged, I have lived from the days of lingering Jim Crow laws, of Dr. King, of the civil rights murders and lynchings through to this day when an energetic, accomplished and brilliant African American family may occupy the White House.  I cried last night because it says that for all of our flaws and warts and starts and stops that we have made progress as a people.

This isn’t meant as paean or love letter to Senator Obama.  It is instead a joyous note to mark a moment of American progress.  It’s American progress that is fundamental and true regardless of who we support and what we believe.  No matter the outcome of this election, we are changed as a people, I think, by these times. That is worth an outpouring of tears of joy.

David Sugerman

Jury Awards $19 Million to Oregon Car Salesmen

Wednesday, August 27th, 2008

It’s just coming out, but The Oregonian is reporting that Oregon lawyers Keith Dozier and Aaron Baker obtained a jury verdict for $19 million in federal court here in Portland on behalf of four Thomason Toyota employees who suffered racial discrimination on the job. Keith is one of my favorite younger lawyers in Portland. He’s committed to doing things the right way. He’s kind of quiet and obviously committed to his clients. I don’t know Aaron, but I imagine he’s talented, too.

Verdicts of this size reflect outrage with a Big O.  I’ll keep an eye on this one and be posting about it as I learn more. In the meantime, if anyone out there knows about the case, I would appreciate your comments and would be happy to learn more about the case.

Congrats to the gentlemen who stood up for what’s right and their lawyers who obviously did a great job.

David Sugerman

Corporate PR strategy: Take responsibility or blame the lawyers?

Tuesday, August 26th, 2008

For years, Airborne Health touted Airborne as a cold prevention remedy. This Washington Post article reports on the Federal Trade Commission’s settlement of false advertising claims against the manufacturer. According to the story, the company agreed to refunds of up to $30 million dollars settlement to dispose of the false advertising claims.

Bad enough that Airborne was raking in money by the tanker-load on false claims. But if that wasn’t enough, the CEO blames consumer lawyers for the company’s woes.  From the article: “A class-action lawsuit sparked this matter. We’re just one of many major consumer brands across America that are under assault by class-action lawyers.”

The Post article quotes Stephen Gardner, director of Center for Science in the Public Interest.  Steve is one of the country’s top consumer lawyers, and CSPI has done its usual top-notch job here. Curious that Steve and the FTC and other consumer lawyers would get the blame. Steve Gardner didn’t choose to make false claims in advertising the product. Neither did the FTC.  But let’s not let facts get in the way.

Seems to me that consumers have the right to know that they’re buying something real when they spend money on a product.  If the manufacturer chooses to falsely advertise its products, it’s only fair and proper that they pay the price.

David Sugerman

Bribery scheme adding to high food prices?

Monday, August 25th, 2008

I do most of the grocery shopping for the family, so like everyone else, I’ve been wide-eyed at the steep increase in food prices.  I’ve heard a lot about rising fuel prices, credit crunches, and inflation as part of the talking heads’ various explanations for the whys of it all.

I almost missed this piece on a federal lawsuit against a vegetable processor, SK Foods, that alleges that SK bribed purchasing agents at various food companies to keep SK’s prices high. If it’s true, some big companies like Safeway, Heinz, Kraft, were getting bribes to inflate prices on SK’s goods.

Nothing like graft, corruption and bribery to add to the cost of living. I couldn’t resist the urge to check in with my good friends at the U.S. Chamber of Commerce. They’re the ones that keep screaming about “lawsuit abuse” as the great drag on the American economy. Of course, they don’t seem to discuss this lawsuit as an example of “lawsuit abuse.” In fact, they don’t talk about bribery at all. I suppose in the Chamber’s world, the government shouldn’t bring lawsuits to address bribery and corruption by large corporations.

David Sugerman

Admin note from man drowning in spam

Sunday, August 24th, 2008

They say that no good deed goes unpunished. After being gone for a week, I came back to a flood of comments from evil spammers. Great way to spend Sunday…read and delete, repeat, etc.Going back, I found several previously published comments that now look like spam. So they’re gone, too. Sorry if I deleted a comment that was in fact legit. I’m a firm believer in posting all real comments, regardless of whether they’re fans, critics or just plain enlightening. So this is my sort of lame apology if I went too far.

And as for evil spammers, well, I’m not sharp enough with the invective to nail you right this second, and more to the point, direct love notes would simply fuel your vile lives.

Vacation is over…I’ll be back on this week.
David Sugerman

In trial and on the net: how trial lawyers use the web

Tuesday, August 19th, 2008

Good article here on a growing practice. Trial lawyers use the internet to find out background on potential witnesses, potential parties, and even potential jurors. This includes social networking sites to find out what the real story is on someone involved in a case. The article raises questions about whether it’s ethical to dig into potential jurors’ internet postings. Assuming there’s no hacking involved, I don’t see any problem finding out as much as I can about a potential witness or juror.

I can learn a lot more about a person from reading her MySpace page than I can from the stifling and artificial question and answer session of jury selection that goes on in the courtroom.

The interesting part from the perspective of those of us in the trenches is the time clash.  Depending on the local rules, trial lawyers frequently don’t get names of prospective jurors until the beginning of jury selection. And often those are called out orally in open court, and you’re scrambling to record the name. Then, you might little or no time to question prospective jurors before deciding on whether to challenge or strike a potential juror. It’s that short window of time that is the most important to look for background.

Imagine that there are maybe 30-50 potential jurors being interviewed with decisions to be made in a matter of hours, sometimes less. The bottom line is that it’s very hard to do effective background searches under these conditions. Even so, we all try because a toxic juror who does not disclose bias in jury selection can unfairly destroy a case.

David Sugerman

Oregon lawyer faces possible disbarment You take the money, you lose your ticket

Wednesday, August 13th, 2008

Sad piece here in today’s Oregonian about Portland trial lawyer Mike Shinn, who faces possible disbarment for taking clients’ money. Seems like this is just a take-it-in-the-shorts week for trial lawyers, as former trial lawyer John Edwards seems to be digging himself an awfully deep hole.

In the Shinn matter, the Oregon State Bar is reportedly pressing ahead with disciplinary proceedings, as it should. The Bar may also ask for an emergency suspension of Shinn’s license to practice.

Simple rule that every Oregon lawyer knows:  If you take a client’s money, you lose your license. It’s got to remain an absolute rule.  Clients need to trust that their lawyers are dealing fairly and honestly with them.

It’s sometimes easy for client-lawyer relations to go bad. You’re never starting in a happy and good place if you need a lawyer.  And that’s when the client first walks in the door.  Some lawyers do a particularly bad job of communicating with clients, and this can add to problems.  But none of those things ever justifies a lawyer taking an undeserved dime from a client. And if that’s what happened, Mr. Shinn should lose his license.

I’ve known Mike Shinn casually for a long time. He’s done some great work over the years. My hope is that this is all a misunderstanding and that he didn’t cross any lines. Regardless of my hope, the Bar needs to get to the bottom of it.  As for the former clients who are pressing their claims, we owe them both apologies and gratitude. It’s a thankless position. If there’s a lawyer out there acting corruptly, the willingness to challenge is the best way to protect the public.

Kudos, too, to Judge Tennyson who had the unenviable job of blowing the whistle. You don’t get a lot of love letters when you turn someone in. But it’s the right thing to do.

I’ve been ruminating all day on this story, along with my continuing annoyance over the Edwards matter. Maybe they’re totally unrelated. During my noon-hour work out, I had a flashback to my teen years. At the height of the Watergate scandal, I was sitting outside under tall shade trees with my apolitical grandfather. Harry was the kind of guy who wanted nothing more than to run his business, sip his whiskey and have a good time. He viewed all politicians with suspicion when he thought about them at all.

I was riveted by the Watergate hearings, and I asked Harry what he thought about the whole thing.

He took a long draw off his scotch, “They were schmucks,” he said.

“What do you mean?” I countered. I think I was thrilled that he would share some wisdom with me, his raging adolescent grandson.

“They were schmucks for doing it, ” he said. And then a quarter beat later he added, ” And they were bigger schmucks for getting caught.”

Maybe Harry’s take fits better on Edwards. As for lawyers who take clients’ money, well they’re schmucks from the get go.

David Sugerman

Thanks National Enquirer–John Edwards’ long fall

Wednesday, August 13th, 2008

So I am one pissed off former Edwards supporter. I guess it’s a big club. Here’s one hell of a take, from the almost always spot-on Leonard Pitts.  And then there’s this hip gal torrent that also strikes a bullseye.  I don’t have much to add. I thought I would never say this, but I will now: Thank you National Enquirer. As a number of people have pointed out, I wouldn’t want someone so blind, so unwise and so arrogant to be in charge.

I can go on, but there’s really no sense in it. I do think that there’s some form of bad screenplay justice in Edwards being taken out by the National Enquirer. Previously, I only read them for the UFO coverage.  Who knew that they could do so much more?

David Sugerman

Billing patients for avoidable medical errors

Tuesday, August 12th, 2008

The medical profession has taken to calling them “never errors,” a label for errors–like surgery on the wrong leg or administering the wrong dose of medicine–that never should happen.  Unfortunately, these “never errors” are not new. Worse, they sometimes occur in clusters, like this one involving the family of actor Randy Quaid.  The good news is that more states are putting guidelines in place to discourage billing for “never errors.” (Sorry, I can’t lose the quotes…it’s just ludicrous that you label something that happens as “never.” But I digress.)

While the media trumpets the story as more states stopping the billing, it’s a bit of a misnomer to say that states prohibit such hospital billings. Instead, 23 states discourage it hospitals from billing for “never errors.” I suppose it’s progress, and maybe the medical profession is getting the message.

David Sugerman

Expert witnesses in the hot tub

Monday, August 11th, 2008

In many areas of litigation, expert witnesses provide crucial testimony about all sorts of things. Issues addressed by experts include the medical condition of a party, the complex financial transactions of an investment scheme, the mental capacity or sanity of an accused, and the safety of a product.

In the American system, experts are hired by either party, and they testify for the party that hires them. In many other judicial systems, experts are hired to advise the court and do not work for either party.

Some view the American system as a horrible practice. The criticism is that experts become little more than information prostitutes who sell themselves to the highest bidder. I don’t subscribe to this view, for what it’s worth.  My take is that an expert who can’t be objective is nearly worthless. Jurors look to us for credibility. I lose that credibility if my expert cannot take a principled approach to testimony.

All this is a long way around to this New York Times article about expert hot tubbing.  In expert hot tubbing, the experts appear at trial together and address the issues jointly. They even ask questions of each other and discuss the case jointly in front of the trier of fact.  The article claims that the practice originated in Australia.  It’s an interesting thought, though I have to wonder whether it’s the panacea suggested by its advocates.   After all, if an expert truly lacks scruples he or she isn’t going to change that point of view by appearing at trial with the opposing expert.

Even so, it’s an interesting view of the world. For those who geek out on the details of the civil justice system, it’s well worth the read.

David Sugerman