Fairly comical story here about how the U of Oregon Ducks Ultimate Frisbee team got banned from competition. It seems that the wild things were into naked ultimate, as well as drinking, and speeding. They were playing for the national title, so it’s actually a major loss.

Full disclosure: I was a third-rate ultimate frisbee player back in the Pleistocene era of my school days. Our team, The Ultimate Menace, never threatened to play for a national title. But to our credit, we always kept our pants on.

The Ducks’ co-captain’s attitude–What the heck is wrong with driving fast, drinking and public nudity?–probably didn’t help in presenting the team’s case. Chalk it up to youth and teachable moments, I guess.

The story has generated a lot of laughs in my office and at home over coffee today. It can’t help but make me want to track down some of the people I used to play to share the mirth. There’s a tinge of sweetness to it, as anyone of a certain age can’t help but smile and remember their own youthful indiscretions.  Fortunately, mine weren’t newsworthy.

David Sugerman

From Oregonlive, here’s an update on HB 2726, the bill that would require chain restaurants to disclose calorie and nutrition information to consumers. The bill reportedly passed out of committee. Here’s the interesting thing. It passed out of committee on straight party lines. All the D’s voted in favor, and all R’s voted against.

Next stop, the House floor. I don’t have any idea what the vote count looks like on this one.

I have to go back to my original question on this. How could anyone oppose giving consumers more information so that consumers can make informed food choices? After all, we’re told that people need to take responsibility for their own decisions. I get that. But for every mouth that’s uttered those words, tell me how voting against more information for consumers helps accomplish this?

I’m listening for answers.

David Sugerman

I recently turned down a complex but interesting case that had been handled by a much larger firm. In hearing about the case, I asked the potential client how he had decided to have this firm handle his case. He explained that he felt like he needed a big firm to take on his former employer’s big firm. According to this young man, who was actually fairly sophisticated, a solo or small firm would simply be out-gunned by the large firm resources.

He was wrong, of course, and part of my reason for turning down the case was that the larger firm had made some poor choices in how they pursued the matter.  His perception is not uncommon.  What few but the best-informed consumers realize is that in the law biz, bigger is not necessarily better. And usually it is far more expensive.

Take this example in which Century Indemnity Insurance Co. is reportedly involved in a fee dispute with the large law firm of Latham & Watkins.  According to the linked report, Latham & Watkins billed an associate who had not even passed the bar at the rate of $450 per hour.

The thing about new lawyers is that when they come out of law school, they really don’t know how to practice law. They may be the best and the brightest by virtue of their acadmic achievements. But at most, they’ve simply studied cases, constitutions, and laws. They haven’t learned how to apply the skills.

When you’re paying by the hour this matters. A seasoned attorney can accomplish in a tenth of a time what a new attorney can, and the seasoned attorney will generally turn out better quality work to boot. That difference is supposed to be reflected in hourly rates. In other words, a new attorney’s rate should be much lower than a seasoned attorney’s rate.

Put another way, who in their right mind would pay $450 per hour for work by someone who will take 10 times as long to do the same task and likely won’t do as good a job?

Those who are truly in the know realize that small firms often deliver the best value. A well-trained and experienced practitioner in a small firm often has profound advantages over large-firm colleagues. The small firm practitioner typically has lower overhead and thus doesn’t bill frivolously. We deal directly with our clients and have to work harder to maintain relationships. Small firms tend to be nimble. We don’t answer to committees, and waste clients’ time and money with lengthy memos, team meetings, and the like. Instead, we get the work done.

Part of me is wickedly amused that Century Indemnity paid through the nose. In representing injured people, I have developed a sense of disdain for many large firms and their inflated billing practices. But of course, that’s between the firm and its client, and none of my business. Should be interesting to see whether this dispute shines a light on inflated hourly rates and overpaying for legal help.

David Sugerman

Texans are proud of doing things in a big way.  Unfortunately, big, loud and proud sometimes misses the mark on the wisdom front. It happened again.

In 2003, Texans went big and amended their state constitution to cap damages that can be recovered in medical malpractice claims. The proponents argued long and loud about the parade of horribles, often with little or no supporting documentation. We’ve heard it all before here in Oregon, too: doctors leaving the state, plus defensive medicine are responsible for the high cost of consumers’ health insurance. The Texas tort reformers sold the big and loud constitutional amendment as a means of lowering consumers’ medical costs.

Guess what? It didn’t work. This report explains that consumer health insurance costs have continued to climb in Texas.  Texas consumers gave away their rights and didn’t even get the benefit they were promised.

Much of the rhetoric about medical liability lawsuits is simply noise. The better information is that serious medical errors cause substantial injuries, that frivolous lawsuits are rare enough to be urban myth, and that medical errors can happen in clusters.

Damage caps are filled with vices. They substitute a lobbyist driven one-size-fits-all form of justice for a jury’s determination based upon a review of the facts and evidence on a case-by-case basis. Damage caps often discriminate against the retired, the elderly and the poor.

Those who live in Texas are proud of their state.  I’m not meaning to throw stones. I imagine Texas voters truly believed they were getting something of value when they gave away their rights by amending the Texas Constitution.  The rest of us are better served to take it as a lesson and not go down the same road.

David Sugerman

When admitted to practice law in Oregon, attorneys take an oath to support the Constitution. Many of us shirked those obligations when we failed to protest the Bush administration’s breathtaking assault on the U.S. Constitution.

That’s not hyperbole. This is the administration that suspended habeas corpus, that expanded the use of warrantless wiretapping, that groundlessly asserted executive privilege, and that re-defined “torture” to make it legal.

The early revelations of the use of torture were accompanied by profound understatement as to whether, when and how often CIA interrogators used waterboarding. We’ve now learned otherwise.

This is not really surprising, I suppose.  Still, it’s a stark reminder of how bad things were and how much we abdicated to the lawlessness of the Gonzales Department of Justice. There are those who want to keep this in the past.

At the very least, we must chronicle the revelations. This is likely a naive effort, but at least writing it down creates one more data point as a caution for those who may look backwards next time around.

David Sugerman

Here’s a somewhat misleading piece on the use of so-called “Independent” Medical Exams in the courtroom.

The article interviews Portland defense lawyer Ron Stephenson.  Ron suggests that both sides use biased medical providers. So it follows, according to the article, that it’s okay–even essential–that the defense use a biased medical examiner.

I’ve handled cases against Ron and his partners for decades. I can tell you without question that I always prefer to use the patient’s own doctor, and every lawyer who represents injured people will tell you the same thing. There are exceptions. Sometimes a patient’s doctor won’t agree to testify in court. Sometimes they charge so much money that we simply can’t afford their testimony.

I have the luxury of working in a smaller community. I know the lawyers and firms on the other side of my cases, and I know many of the doctors. Who my opponent selects for the defense medical exam will color my reaction. If it is a standard defense doctor, I will often oppose the exam or at least seek conditions. The most important conditions for these types of defense exams include the doctor’s earnings from medical exams and a video of the exam.

A number of my opponents choose a wiser path. When the defense selects a neutral physician, I will put much more stock in the opinion.  If that only happened more frequently.

David Sugerman

I started using Twitter a while ago on the recommendation of Matt Schulte, the guy who designed this web page. As with many of Matt’s suggestions, I wasn’t entirely sure that I could master it or–more important–whether it made sense.

Matt was so right for reasons that I’m only beginning to understand. On one level, the access to real-time information from other lawyers, consumers, media, and political sources gives me quick access to things that I wouldn’t normally see.  This smart explanation in the mobile New York Times provides better analysis.

There are downsides.  Who, for example, wants to read 140-character snarky posts from a self-proclaimed expert’s real time review of Dancing with the Stars? That happened to me last night as I had the feed going. After the third one, I simply stopped following the woman, saving myself from further wincing.

But at the same time, I can hear from a colleague in Georgia who is looking for an expert. I can post and respond to queries about matters that I’m seeing here in Oregon. The networks are fluid, and my query to those who follow me are often forwarded (”retweeted”) by others to their networks. I find people of interest to follow and can search for topical posts.

Over my public and private writing life, I’ve written stories, reports, court pleadings and briefs, a novel, op-ed pieces, law journal articles, news reports, and blogs. Each form of writing is its own thing.  So too with Twitter. The 140-character form requires concise writing. It also leads to its own syntax. It’s a beguiling form.

Twitter creates risks. Those include the attorney who wanted all of her followers to see her up-to-the-minute thoughts about Dancing with the Stars. But there are more serious risks, too. And of course, it could simply be a hot fad, like the CB radio.

I doubt that. Given the fluidity of the information and networks, I don’t think this is passing fancy. Seems more likely that some form of this medium will become an important source of information and communication.

David Sugerman

ps-I’m on Twitter as @DavidSug. Feel free to look me up.

Kudos to Public Citizen and Brian Wolfman for this update and all the hard work on an important consumer class action issue. Brian was a stalwart in getting published the National Association of Consumer Advocates “Standards and Guidelines for LItigating and Settling Consumer Class Actions.”

The updated guidelines appear at 255 FRD 215 (2009). As with the 1997 version, I imagine that lawyers and judges who are involved in consumer class actions will pay close attention to these consensus views of best practices. The Guidelines serve as a best practices guide to make sure that consumer class actions are pushed forward appropriately and settled with proper protections for consumers.

For those who don’t know, NACA is one of a handful of organizations that put consumers first.  I have been a member for several years, and I’m invariably impressed by the quality of the lawyer members of NACA and the collective commitment toward justice on behalf of consumers.

The opinion is not yet up on Lexis, and I don’t have a public domain link yet, either. But I’m looking forward to seeing it in full.

David Sugerman

Here’s a sketchy but interesting report on a large defamation judgment handed down against a South Carolina blogger. According to the report, a referee appointed by a South Carolina judge set damages for injury to reputation at $800,000 and punitive damages of $1 million for a blogger’s defamatory statements about a South Carolina ad agency head.

There may be much hand wringing about this report, so it’s worth discussion.

From an early age, we all learn about the value of a person’s reputation. It’s an ancient value protected in many realms. The ancients revered it. Religious texts talk about it. It’s protected by various old court cases in many legal systems.  State constitutions commonly protect reputation interests along with property rights.

Many of these old sources remind us of what we know. Damage to reputation made by false statement is difficult if not impossible to fix. Or as better put in a statement incorrectly attributed to Mark Twain, “A lie can travel half way around the world while the truth is still putting on its shoes.”

For that reason, most western legal systems recognize a claim for damages arising out of false statements made the damage reputations. The modern name given is defamation.

Defamation claims generally require proof that a statement was made, that it was false, and that it caused injury to a person’s reputation. There are a bunch of other legal rules that come into play in modern defamation claims, which is simply a way of acknowledging that the summary here isn’t precise.

Now onward.

Whether you make false and defamatory statements by whisper, in a handbill posted on a wall, in the newspaper, on your blog, via Twitter, on the scoreboard at the ballpark, or to all of your Facebook friends, the effect is the same.  The lie has traveled half way around the world….

I have some questions about this case. I don’t practice law in South Carolina, so my questions are more about the rules that apply. In South Carolina, the referee and judge set damages. Here in Oregon, damages would be up to a jury.

There is also a First Amendment question about whether it’s right to award punitive damages in a case like this. Punitive damages punish an actor for bad conduct. They are added to damages assessed to pay for the harms and losses suffered by an injured person.  There’s an interesting tension in First Amendment cases. Where does the need to protect the right of free speech end? At what point does the constitution allow punishment for speech?

Not enough information here to assess, but it’s an interesting case. The takeaway for those of us who blog is that defamation rules apply.  But there’s really little different here from earlier days, other than the speed and distance which a lie can travel on the internet.

David Sugerman

A new proposed law pending in the Oregon Legislature, HB 2726, would require chain restaurants to provide Oregon consumers with calorie and nutrition information on items on the menu. Onward Oregon is pushing the bill. As I’ve noted before, giving consumers calorie and nutrition information is a great idea.

Those who are critical of obesity fast-food lawsuits should be quick to hop on board.  Legislative regulation is a great alternative to regulation by litigation.  After all, if you give a consumers truthful and timely information about the food they are buying, they can’t claim that they were misled by the seller.

Some are critical of this approach. After all, we’re told, some warnings are ridiculous. True, a warning like, “Be careful, don’t hit your finger,” on the side of a hammer is goofy or worse. But when–due to its design–the same hammer can shatter into a thousand pieces and project metal splinters, you better believe that consumers should be informed.

If you’re interested in supporting HB 2726, go here and let your legislator know.