Congratulations to my friends at Greg Kafoury, Mark MacDougal and the rest of their team for obtaining a multi-million dollar verdict on behalf of a patient who was sexually abused by an EMT.

According to this report in The Oregonian, the Portland jury returned a verdict totaling $2.25 million against American Medical Response amublance company. The jury apparently concluded that American Medical Response knew or had reason to know that its EMT, Lannie Haszard, might have sexually abused patients.

The news report explains that three women had complained to police and the company about prior sex abuse incidents. I imagine that the evidence of prior complaints had a major impact on the jury.

These cases are particularly challenging, especially for the victim who must come forward and rehash the events in the litigation and at trial. I’m appreciative that she found the strenght to do so and that the jury listened to the evidence and set the standard for our community.

David Sugerman

There’s an elephant in the room in the health care debate. We’re hearing a lot about high medical costs and uninsured people. And then there are the fake controversies over things like “death panels.” But what isn’t being discussed is the issue of patient safety. Instead, we’re hearing about national medical malpractice reforms and damage caps.

Here’s a link to a recent post I authored on PDXpersonalinjuryattorney.com, a blog devoted to Oregon injury issues. Here, also, is an amusing piece debunking some of the myths about tort reform being recycled by desparate politicians.

The thing that people miss is that an estimated 48,000-98,000 people die in America every year from preventable medical errors. As my buddy, Oregon trial lawyer Mark Bocci points out, it’s a bit like losing all the crew and passengers on a commercial jetliner every day.

Against this backdrop, caps and limits don’t make much sense. Let’s instead resolve to focus on patient safety. I can’t help but wonder what kind of conversation we would be having if everyday our civil aviation lost a plane.

David Sugerman

So this is so off-topic that you might ought to just push on through. But promises were made, and I’m a firm believer in keeping my word.

The backstory is that I’ve been on Twitter for a while, and I have a compelling cast of characters who I follow and who follow me. Some our Portland linked. Others are law tweeps. (Yeah, I know, but that’s Twitter talk.)

More back story: I’ve been biking into work a good chunk of the summer, and I’m looking to keep on it into the rainy season. We had some major rain last week. My nylon running jacket and nylon shorts failed, leaving me prune skinned and water logged.

So I turned to my Twitter buds–my tweeps–for suggestions on foul weather biking. One of them asked me to compile into a post so that all could benefit, and now I’m at it.

The biggest point of agreement was that fenders are essential. So say @lancedgoddard and @AndyBarovick. (Yes for those not into the Twitter the @ character is the signifier of Twitter ID.) Of course, I have fenders on my slow but steady commuter bike. So I guess my pruning could have been worse?

Rain gear was a source of controversy. According to at least one person, @jwdoom, rain gear is a crock. Actually, he was a bit more graphic, but I’m trying to keep it clean here. On the other hand, @BeelJDPhd relates that a colleague swears by Pearl Izumi rain gear from REI.

And then there was a long list of suggestions from the ever helpful @AndyBarovick, but his bottom line was really simple: Don’t ride in the rain, unless you have to. I’m hoping that “rain” to the New York @AndyBarovick is different than rain to me, Portland’s @DavidSug (yes that’s my Twitter ID), but who knows?

In any event, my promise kept, I go back to the grind of today’s tasks. Thanks to all my Tweeps. It’s an engaging conversation, isn’t it? And for anyone who’s reading this who is on Twitter, feel free to check out those cited. They’re all engaging and interesting people with whom I’ve connected.

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

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

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.

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

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