Here’s the link to a report in The Oregonian posted on OregonLive about this week’s increase in filing fees in Oregon’s civil court system. Longer analysis here explaining the problem.  The comments at OregonLive are a bit disconcerting, what with yammering about frivolous lawsuits and a 1989 Orange County case.

Last I checked, Orange County was in California, not Oregon. And 1989 was, like, 20 years ago.  The case sounds suspiciously like a number of made-up cases from the 1980’s that turned out to be urban mythic. Not that it matters–that wasn’t the case here, and it isn’t the case now.

But the noise about frivolous lawsuits from 1989 in California misses the point.

The real problem is that ordinary Oregonians–people who pay their bills and keep their heads down–are going to be barred from the courthouse. It’s not just filing fees. The courts will now charge costs at stage of the case (motions, orders, appearances, arguments). The Oregonian article missed that part of the story. Unless we face up to funding services in our state, only the rich will enjoy basic rights like access to justice. You can’t afford it? No justice for you.

Sad day.

Wonders never cease. Here’s a blog post at the Oregon Class Action blog about the California tort reform advocate who filed a class action against the City of Sacramento for towing his illegally parked car. Can’t hardly wait to see how this one comes out!

David Sugerman

It’s one of those cases that causes those of us who represent consumers to shake our heads. An affluent woman who has been bleaching her hair since childhood sues an upscale salon for botched hair treatment. She seeks $50,000 in humiliation damages, plus substantial out-of-pocket expenses for hair treatment and childcare.

Deliberating for just an hour, the jury found against her by a margin of 11-1.  That’s about as quick and complete a rejection as you see in a jury trial case.

The lawyer representing the dissatisfied salon patron, Leta Gorman, is a shareholder at Bullivant Houser, a large west-coast law firm.  She  typically defends manufacturers in injury cases.  According to the news account, the lawyer defending the salon argued that this was a “frivolous lawsuit.”

Oddball cases get twisted, and I imagine this one will show up in the echo chamber of distortion. What the Chamber of Commerce and others who decry lawsuit abuse miss is this: most damage lawsuits are filed by businesses. Here, an affluent and sophisticated consumer seeking beauty in a bottle sued when things went bad. It’s fine for the Chamber of Commerce to complain, but it ought to be truthful about how only the wealthy can afford the luxury of litigation of thin cases.

For those of us who represent injured people, this is one of those eye rollers. It’s an eye roller because cases for people with profound injuries have to wait in line behind luxury litigators. It’s an eye roller because our judicial system–which is strained and underfunded–has to deal with this type of claim. And it’s an eye roller because it gives squawk box material to those who can’t discern between claims for those wrongfully injured and those who litigate simply because they can afford to do so.

For all the heat and the noise, the true story is about quiet wisdom. That wisdom came from the jury. One of the jurors, Del Shaw, was quoted in The Oregonian. His simple assessment is the real story: “We took a look at the facts and didn’t feel the facts supported the claim.” That left me smiling because it simply shows that the jury considered the evidence and made a decision based upon the merits.

In that way, the case proves what those of us who work in the trenches know. Juries generally get it right.

David Sugerman

Nice write up online for the Willamette Week here about how liability insurance rates for Oregon physicians fell. The study from the State of Oregon Department of Consumer and Business Services dispels a major political myth.

While it’s hard to remember, Oregon voters rejected a cap on damages in medical malpractice cases several years ago. The initiative, Measure 35, was sold as necessary due to a crisis. Check out the linked power ponit to see how badly proponents of Measure 35 overstated their position.

Oregon voters saw through the rhetoric and chose the wise course. Today’s study simply confirms the wisdom of that choice.

It should be interesting to see whether this objective information stifles the recurring urge by some to put limits on damages. The absence of any crisis makes it pretty difficult to argue for caps on damages.

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

This report from an Arkansas trial closes the book on a recent clash between new media and jury trials.  The trial judge ruled that a twitter users tweets were in bad taste but did not amount to misconduct. He declined to grant a new trial to Stoam Holdings, a building materials company.

Twitter, Facebook and Google present enormous challenges to trial lawyers. The problem arises from the need to base case decisions on the evidence in the courtroom.  In the early years of my career, judges simply instruced jurors not to drive by accident scenes, make independent inquires or perform out-of-court research. I suppose I could be naive, but I think that jurors generally complied.

I imagine that jurors simply don’t or won’t anymore. They can Google and facebook witnesses. They can send tweets. In short, they can and will refuse to follow the instructions that the only evidence worthy of consideration is the evidence presented in the courtroom.

While I imagine that many jurors would snort at the notion, there are good and important reasons for the rules. Lots of evidence is out of bounds because it doesn’t meet the standards of admissibility. But there’s a more subtle reason for the rule. When evidence is presented in the court room, both sides have the ability to challenge its validity and interpretation. When it’s located as a result of a juror’s out-of-court search, it may be accepted as valid without the ability to truly challenge the evidence.

Take the simple example of a Web MD search. Here is the link to a Web MD article on neck strains. It’s easy to locate, and it provides all sorts of good information about the problem of neck injuries that typically occur in motor vehicle collisions.

But that Web MD information tells you nothing about Ms. Jones the hypothetical person whose claim may be tried next week. Relying on that information without explanation from Ms. Jones treating doctor might lead to misinterpretation of the information or misapplication of the general concepts.

Short version is that the juror who has gone off on a lark has Googled his or her way to a potentially misleading result. That’s the most important reason for the rule.

The twitter case linked at the beginning is just a start. I imagine we’ll see radical changes to the way we try cases because of the access to technology.

David Sugerman

The Ninth Circuit Court of Appeals ruled Tuesday that the Vatican must answer a claim for damages arising out of the sexual abuse of Doe.  Here’s a link to the pdf of the long opinion. The upshot is that the case cleared the first low hurdle, in that the Court found the Holy See is not immune from the lawsuit.

No telling where this goes. It’s premature to conclude that Doe will prevail against the Vatican. But he will get his day.

David Sugerman

Add one more thing to the list of casualties of the economic meltdowns. Oregon Chief Justice Paul DeMuniz announced Friday that Oregon courts will go to part-time operations at least through June.  A reprint of the press release is here: oregon-judicial-department-closure-press-release-20091

It’s easy to shrug the shoulders and treat this as one of those things. That would be a mistake. When our court system can’t function full time, it must make choices of which cases get heard.

The closure will put off all manner of cases, including divorce and custody proceedings, landlord tenant problems, civil cases for consumers and employees, and business disputes. If things get worse, we can expect to see criminal cases get delayed or dismissed.  An underfunded and poorly functioning judicial system is one of those key indicators of the stability of a society. When funding prevents courts from operating, problems previously solved through the courts go unchecked. This is not a pretty thing when it goes on for a long time.

The problem is exacerbated by our recent initiative cycle.  Some readers may recall that in a race to the bottom, the Oregon Legislature proposed an initiative on mandatory prison sentences. The Legislature put its mandatory sentencing measure on the ballot as an alternative to the absolute stinker pushed by the profoundly irresponsible Kevin Mannix. While the Mannix measure was much, much worse, the voter-approved measure saddled our State, our prisons, our criminal justice system, and our judiciary with huge unfunded costs.  To be fair, this isn’t the cause of the current crisis, but it surely doesn’t help things.

Let’s hope that we get clear of this crisis quickly. For my part, I want to add my appreciation for the men and women who serve in the judicial department. They’re on the front lines of tough problems that no one else wants, and they’re being bled dry by our current woes. The closures will result in staff and pay reductions. Most are a tribute to civil service, as they work hard and don’t make a lot in return. They deserve our thanks for soldiering on in tough times.

David Sugerman

Here’s a chilling news report on problems with emergency medical technicians sexually abusing patients.  As with any profession, it’s easy to look away or bury sexual abuse allegations. It’s simply too sick and painful to think that an ambulance attendant would use the cover of medical care and an incapacitated patient for sexual gratification.

Kudos and appreciation to my pal, Portland attorney Greg Kafoury, who is quoted in the article, for taking on these cases. I’ve handled medical profession sex abuse cases. Rather than saying “thank you” some members of the medical community sometimes shun lawyers who handle these hard cases.  Kafoury isn’t someone to be deterred, so any opposition isn’t something that will get in his way.

As for the victims, I can imagine only few things worse. Patients are helpless when we enter the system. “No” doesn’t work when you’re strapped to a gurney, sedated, injured or otherwise in pain. Patient molestation does great violence to the medical system but that’s nothing compared to the violence done to the victims.

For sex abuse victims, the civil justice system can provide a means of getting back to solid land. To feel some measure of vendication and to make a molester face consequences sometimes helps the victim back to healing.

David Sugerman