Christmas came early for current and former Wal-Mart employees with this good news. Wal-Mart has agreed to settle 63 wage and hour claims pending in various courts. Wal-Mart will pay between $350 million and $640 million to settle the pending cases. No word yet on how much any employee will receive. The settlements must still be approved by judges overseeing the various cases. Critics of Wal-Mart have long questioned whether it achieves its low prices at by chipping employees. Still, it’s a good day when a company steps up to do what is right–no one who works for wages should have to endure the death by a thousand paper cuts of small illegal wage deductions for work performed. The case illustrates the importance of wage and hour class actions. Employees who face illegal employment practices often can’t afford to pursue their small claims. But when those small claims are bundled into a class action, a company that makes money by chipping its employees can be forced to face up to a huge day of reckoning. That’s apparently what happened here. David Sugerman

Unless you enjoy reading court cases, no sense in looking at this new Oregon Court of Appeals opinion. It’s an interesting case, even if it’s a bit long. In it, the Court took two lawyers to task over their conduct.

In the underlying case, Tahvili v. Washington Mutual, the Court affirmed a trial court’s ruling barring a California lawyer–one Burton McCullough–for his conduct at trial. Mr. McCullough was specially admitted to practice in Oregon for a trial. According to the Court of Appeals opinion, Mr. McCullough vioalted a trial court order, repeatedly violated trial court rulings and kept trying to get inadmissible evidence before the jury. In the middle of the trial, the trial judge got so angry with Mr. McCullough’s repeated violations that he revoked Mr. McCullough’s permission to specially appear.

The trial judge, Sid Galton, has since retired. Mr. McCullough’s conduct reads like a point-by-point primer on how not to try cases. Or at least how not to try cases in Oregon.

The Court of Appeals took a dim view of Mr. McCullough’s conduct. But it seemed more annoyed by the brief submitted in the Court of Appeals. In their brief, Mr. McCullough and the Portland firm of Greene & Markley argued that the trial judge–Judge Galton–suffered from mental health problems and had anger issues. The appeal brief even denied that Judge Galton had entered an order and kept referring to a “phantom order.” While the Court of Appeals spared details of more wreckage but made clear that the arugment  went further with hyperbole and distortion.

Writing for the unanimous court, Judge Haselton had this to say:

“We pause to express our collective disapproval of such methods of appellate “advocacy.”  We have repeatedly, in both published opinions and public professional fora, condemned ad hominem attacks on trial judges as offensive and improper.  Such “scorched-earth” tactics, when coupled–as they almost invariably are–with lurid and misleadingly incomplete descriptions of the record–are counterproductive.  They impair, rather than assist, the appellate process” (quotations and italics in the original).

In the rarified air of the Oregon Court of Appeals, that’s equivalent to a serious smack down.  Courts are like elephants in that they don’t forget.  Oregon remains a small legal community, and as a result, most of us who practice law here are mindful of how we conduct ourselves. In Oregon legal circles, earning a reputation for being unprofessional or dishonest sticks with a lawyer for a long time.

The other thing of note is that the Court of Appeals correctly protected the integrity of the trial judge. One of the things that’s really important for our system is judicial integrity. We can’t have a fair legal system if judges aren’t accorded respect by lawyers appearing in court. We can disagree with judges. We can dislike their reasoning and take issue with their conclusions, but if we’re to be part of the justice system, each of us owes a duty to maintain the integrity of the system.

David Sugerman

George Orwell would have marvelled at the name, “The Center for Consumer Freedom.” Is that a great name or what? So why are they opposed to food labeling requirements? Why do they claim that the obesity epidemic is a contrivance? And why do they counsel consumers to get written waivers from guests before serving unlabeled Thanksgiving dinners that might have lots of calories and fats?

The “Center for Consumer Freedom” is a front for food processors, manufacturers, and fast food restaurant chains. It was started with seed money from tobacco giant Philip Morris.  According to the Center, it’s the evil trial lawyers that you need to fear at the Thanksgiving table. Full disclosure: While I don’t think of myself as evil, I am, in fact, a trial lawyer.

So here’s a question for the Orwellian people at Center for Consumer Freedom: What are you afraid of? What do you and your funders fear? Is it that informed consumers might make choices that hurt sales and profits? Is it that the calorie dense corn syrup-fueled commodities might lose their sweet and profitable allure once consumers have the ability to make choices? One of the things lost on the deregulation crowd (say, “oink!” all) is that disclosure rules provide the best form of regulation. When consumers have information, they can choose with knowledge. Isn’t that preferable to rules that prohibit things?

At bottom, the food industry makes choices in what it puts in its products. If you want to blame us for “being fat” then surely you can’t oppose giving us the information that allows us to make smart choices. Or can you?

In the end, it’s easy to demonize the trial lawyers. But we didn’t start spiking processed foods with high-fructose corn syrup. But even worse, the disclosure rules opposed by the “Center for Consumer Freedom” would lessen lawsuits.  If consumers know what they’re getting, they have literally no cause to complain. So–to quote one of their fund sources from an old campaign–Where’s the beef?

David Sugerman

It’s a bit hard to read about the details of Bill Coultas’ injuries from a helicpoter crash, but doing so gives good insight into why we need a fair and open justice system. Mr. Coultas suffered profound injuries in the helicopter crash. No wonder that survivors and relatives of those who died are pursuing claims arising out of the crash.

The talking heads who criticize the civil justice system mouth stock phrases like, “frivolous lawsuits” and “McDonald’s coffee.” If you’ve heard or uttered those words, you should take a look at Mr. Coultas’ story, as it explains in detail what we mean when we talk about profound injuries.

I don’t know anything about Mr. Coultas’ situation other than what is reported in the linked article. Still, it’s a good read for crticis of the civil justice system.

David Sugerman

I’ve been amazed by the one-sided nature of the bail out relief package. The Bush plan that gave $700 billion to bail out Wall Street’s greed mongers failed to provide meaningful relief for homeowners in trouble.

I suppose it’s easy to be critical of consumers who got in over their heads by buying more house than they could afford. But if you’re going to help one side, fairness requires that you help the other.

Finally, this proposal to at least delay foreclosures. Not sure whether it has any real chance of going anywhere. But still. Consumers teetering near the brink should follow this development closely, as it may provide a means of keeping people in their homes.

David Sugerman

Corrected 26 Jan 2009:

It’s so hard to read this story of grief involving an Oregon family. A sand rail collision on the Oregon dunes decimated David Leach and his fiance’s family.  According to the news report, David Rieman, the other driver, may have been drinking.

The obvious thing is that alcohol and dune riding don’t mix. I suppose it’s maybe too tempting. It’s beautiful out there on the Oregon dunes, and if you’re out on a warm day, it’s hard not to knock back a few beers. But anyone who has been out there can tell you that the beautiful dunes are also dangerous as all get-out.

Apart from alcohol, the Dunes are beautiful, but they demand caution and attention. Terrain shifts, and some of the off-roaders drive like bats out of the hot place below. You often can’t see what’s coming over the crest of this dune or the next. It’s no place for anyone impaired.

This isn’t mean to heap blame or find fault. To the families involved, there’s nothing ahead but profound pain. But for the rest of us who love to frolic in the dunes, maybe this tragedy provides a moment to reflect and to renew the commitment to separate alcohol from off-roading.  Maybe, also, it’s a teachable moment for others who aren’t operating safe vehicles out there.

David Sugerman

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

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

Good piece on how it’s usually wise for plaintiffs in injury cases to settle their claims, even when the settlement feels like too little money. The short version is that pre-trial settlement of the claim is generally the wise choice.

According to the forthcoming study, plaintiffs–the people bringing the lawsuit–mistakenly go to trial 60 percent of the time.  The measure of a mistake is whether they receive more at trial than was offered or less. If it’s less, the authors treat that as a mistake.

Interestingly, while defendant’s make the wrong choice less frequently, the study reportedly finds that when they are wrong, they tend to be wrong by a much greater amount.

I’ll be interested to see the study once it’s out because it may have understated something that’s important. If the study only compares the amount of the settlement offer to the amount of the trial verdict, the study may understate the harm to the plaintiff who chooses incorrectly.

Here’s why.

It usually costs substantially more to go to trial. In contingent fee cases, it is not unusual for a lawyer’s fee to increase if the case goes to trial.  That increase is designed to reflect the sharp increase in the amount of work the lawyer must do.The hourly lawyer’s fees also increase sharply as trial approaches, as the lawyer and his or her staff will spend a lot of time on the clock preparing for trial and going to trial.  When I am in trial, it is not unusual for my work days to run 14-18 hours, and when a trial goes several weeks or longer, it’s easy to see why things get expensive.

It’s not just about lawyers fees. In addition, the expenses associated with trying a case can be postponed until late in the game, but they steeply increase on the brink of trial. Expert witnesses spend many hours getting ready to testify. That’s an expense. So are the costs of exhibits and presentations.The bottom line is that going to trial costs a heck of a lot more.

As a practical matter, it measn that a settlement today of $25,000 might result in an equivalewnt bottom-line net recovery that is roughly equal to a trial result in the same case of $40,000.  So in this example, if an injured person turned down an offer of $25,000 and went to trial and won a verdict of $30,000, it would prove to be an unwise choice because the net amount in the person’s pocket would actually be less.

It’s a sobering article. But it confirms my professional experience. It’s part of why those of us who try cases regularly tell clients about the risks of going to trial.  We always want our clients to make informed choices.

David Sugerman

The recent FDA announcement of the tomato salmonella outbreak leads me to wonder about how we got here. Announcements like this give the media great material to play with the fear process. I call it the “don’t eat that,” or scare-of-the-moment journalism. The danger is real, of course, as salmonella can pose a serious health hazard for children, elderly, and people with compromised immune systems.

The real problem is a lax food safety system. This is not something that’s simply limited to tomatoes.  The reality is that deregulation–the heralded salvation and light of the American economy–has a very nasty underside.

Food safety is one of those classic government functions. If we want a safe food system, we have to pay for it and know that sometimes regulations are a pain in the neck. Oh, and it costs money, as in higher taxes.  Of course, that pain in the neck is part of how we protect our toddlers and aging parents who can be felled by a manufacturer’s failure to maintain food safety standards.

The alternatives give us two things. One is this scare-of-the-moment journalism. Annoying. But here’s the bigger one. The other consequence of deregulation is that people like me–trial lawyers–have more and more work.  My job starts when injured people call about calamities that have befallen them.  I am like “All the Kings’ horses and all the Kings men” as I go about trying to re-assemble lives and families broken by unsafe practices.

Our food supply system needs to be regulated properly, and we need to dedicate the resources to it so that regular inspections and enforcement processes prevent these outbreaks.

David Sugerman