How Lawsuits Can Help Solve Problems
One of the great things about living in America, is we have something called “the rule of law.”
So, just what is that?
Well, in the U.S., instead of having a king sitting on a throne, we believe “the law is king.” That means that we believe we are ruled by laws, not other men and women. “The rule of law.” It’s precious stuff, friends.
So, what does any of that have to do with lawsuits.
Well, it turns out, that people just living their daily lives, are going to have problems that come up in dealing with other people.
There’s two ways to solve problems having to do with money, property or your person, what we call “civil” problems.
One is something called “self help.” In other words, if your neighbor built a high fence and you don’t like it, self help is taking a saw and cutting it down without permission.
Only we learned a long time ago that self help causes all kinds of problems. If you don’t believe me, try cutting down your neighbor’s fence and report back to me what happens. No, just kidding. Don’t do that. Self-help isn’t really all that helpful.
The other way to solve civil problems is something called a civil justice system.
When someone wants to solve a problem using the civil justice system, they file papers asking for some kind of relief. That’s basically what a lawsuit is. Pretty simple, huh?
Now, there is plenty of debate these days about whether there are too many lawsuits, or too few, and all that kind of stuff that I know you hear about all the time.
But, the truth is, when you have a civil problem, it become real important to you that someone can help you solve that problem in the fairest, least expensive and quickest way.
Now, I’m not here to give you legal advice and there are differences in how courts work in each state and in the federal system. Still, spend a little time with me and I think I can tell you some things that you didn’t know before and, hopefully, will help you with whatever problem you need to fix.
Voire Dire is about fair and just
When we take on a case against a popular defendant, we always ask ourselves, “What will folks in the community think about this?” The reason is, people in our community have the final say on what is right and what is wrong when a case goes to jury trial. It’s the purest democratic form around. Twelve people in the jury box. They apply the facts to the law and tell us what they think is fair and just when they announce their verdict.
Voire dire is old French and means “to speak the truth.” In a jury trial, we talk to prospective jurors about how they see the world. The goal is to identify people who can’t be fair and unbiased in a particular case. Since we are looking for a fair and just result, we try to make sure that the folks who make the decisions don’t have a personal agenda that will color their decision.
In voire dire, the judge and attorneys ask prospective jurors questions and then listen to their thoughtful responses. Here are some examples from a medical negligence case I handled in 2011. How would you answer these if you were sitting in the jury box at the start of a jury trial?
1. If you were a juror in a case like this and you decided someone was injured because a doctor was negligent, what trouble would you have – even a little – holding the doctor responsible?
2. If you were a juror in a case like this and you decided a doctor’s negligence hurt a person, what trouble would you have – even a little – allowing money for the medical costs?
3. Some folks have trouble allowing money for taking care of someone who is hurt if there is family around who might pitch in, while others are okay with fixing the hurt without burdening the family. Which are you closer to?
4. Some folks have trouble allowing money for pain and others are okay with it. Which are you closer to?
5. Rules and standards. Some folks believe that rules and standards need to be followed, others feel that rules can be ignored. Which group are you closer to?
6. Some people believe that they can’t decide whether or not a doctor followed the rules, some believe they can. Which group are you closer to?
7. Some people believe doctors aren’t always right, others believe that doctors are right all the time. Which group are you closer to?
8. Some folks think that it is okay to question what a doctor does, others believe that doctor’s can’t ever be questioned. Which group are you closer to?
9. Some people believe that when a doctor violates a rule and someone is injured, it is okay to hold him responsible. Other people believe that a doctor can’t be responsible for injuring someone no matter what rule he breaks. Which group are you closer to?
10. Some people think that lawsuits against doctors don’t violate any of their religious, philosophical or moral beliefs, others think the opposite. Which group are you closer to?
11. I will tell you right now that [Mom] won’t be here every day, because she is the primary caregiver for her daughter. Some people think it is okay that the mom isn’t here in court every day even though you have to be, others believe she should be here everyday, no excuses. Which group are you closer to?
12. Some people can handle a lot of pain, some folks can’t handle much at all. Which are you closer to?
13. When you first heard about this case, what was your reaction?
14. Some folks feel they’re pretty capable on their own of keeping themselves and their family safe. Others feel they have to depend on others. Which group are you closer to?
Merck to Pay $950 Million for Illegal Marketing
The US Department of Justice announced today that Merck, Sharp & Dohme will plead guilty to illegal promotion of Vioxx (rofecoxib) and will pay a $950 million in fines and penalties to the US government and individual states.
As part of the settlement, Merck has also agreed to enter into an expansive corporate integrity agreement with the Office of Inspector General of the Department of Health and Human Services (HHS-OIG), which will strengthen the system of reviews and oversight procedures imposed on the company. Although Vioxx is no longer on the market, this ongoing monitoring of Merck’s conduct is aimed to deter and detect similar conduct in the future.
Click here to read the full Press Release from the Department of Justice.
Judge Authorizes Service by Facebook
Okay, now we see how far social media has crept into our legal system.
Seems a Minnesota judge has ordered “divorce paper service by “email, ‘Facebook, Myspace or any other social networking site.’”
The subject was an absent husband believed living in West Africa. The judge rejected the notion of service by general delivery (“General delivery made sense 100 years agao, but let’s be real”) and legal trade paper (“Nobody, particularly poor people, is going to look at the legal newspaper to notice that their spouse wants to get divorced.”).
While this looks like an unusual fact pattern, the truth is that social networks are a big part of modern life and the legal system is recognizing that fact.
.
California Elder Abuse Statute is available online
The Bureau of Medi-Cal Fraud and Elder Abuse relies upon many different laws in its criminal and civil prosecutions involving both Medi-Cal fraud and elder abuse.
Click here to visit the State of California DOJ, Office of the Attorney General for links to download the Statutes.
US Supreme Court Permits Waivers Of Class Action Rights In Arbitration Agreements
Supreme Court upholds class action waivers in AT&T v. Concepcion.
This is bad law. In effect, the US Supreme Court has created a safe harbor for corporate fraud, it’s sort of like licensing a tax on everything we buy. So long as the amounts stolen are too small to justify an individual case, crooked practices will be profitable.
At some point, corporate greed will demonstrate to all why this decision is wrongheaded. In the meantime, caveat emptor (ie, “buyer beware”), big time.
Sunshine In The Courtroom Act Is A Good Thing
Recently the Senate Judiciary Committee advanced a bill that would authorize federal judges to allow certain proceedings in their courtrooms to be photographed, recorded or broadcast.
(S. 410:Sunshine in the Courtroom Act of 2011)
This is a good thing.
Judicial proceedings are supposed to be public proceedings in all but exceptional cases. So long as there are safeguards to ensure decorum, nothing wrong with letting the public have a more intimate view of things.
“Sunlight” as the saying goes, “has antiseptic properties.”
I do anticipate some grumbling from bench and bar. But the fact is, we are officers of a public trust, if we can’t conduct ourselves accordingly in a courtroom, then the public has every right to question the profession.
Winning cases is great, however, you still gotta get paid.
This week, a California appeals court granted the tobacco giant, R.J. Reynolds Tobacco Co., a reprieve from paying $700,000 in attorneys’ fees in a dispute with the state. This case alleged Reynolds violated a settlement agreement by “ ‘using or causing to be used’ any ‘cartoon’ in the advertising, promoting, labeling or packaging of tobacco products“. Court of Appeals of California, Fourth District, Division One. No. D056589.
This goes to show the risk of the contingent fee. It is one thing to successfully bring a valid claim. It is another to actually recover money. Lawyers who do contingency fee work truly do risk their own capital and time to help people work out their disputes in a productive fashion, that is, in a justice system. Compare that free market system with what goes on in, say, China, and you begin to understand why the founding fathers put the right to a civil jury trial in our federal constitution.
Agreeing to a settlement doesn’t mean it’s over.
DHL Express Inc. has agreed to settle a putative wage-and-hour class action brought in California federal court by former employees.
Although DHL has agreed this week on the settlement, the case is not actually closed.
Once the parties agree to a settlement, the Court needs to approve it. The process is generally a motion for preliminary approval, where we explain the terms of the settlement to the Court, preliminary approval (or disapproval) by the Court, notice to the class about the terms of the settlement with an opportunity to object or opt out, motion for final approval and final approval (or disapproval) by the Court.
It can take quite awhile for the entire process, much more cumbersome than a conventional individual case.
More on Class Actions: 5 Tips for Understanding Class Actions
Justice for Common Working Folks
A case in Florida is a classic example of protecting the powerful from regular people.
In Roberts v. Angelfish Swim School, Inc., the defendant, the interim secretary of state is arguing that to take part in a class action lawsuit, a potential class member must prove that he or she can individually fund the entire litigation for the entire class.
In our wage and hour class actions, we regularly represent common working folks who have been shorted on their pay. We invest ten of thousands, sometimes hundreds of thousands of dollars in hard costs for experts, document copying, etc., plus attorney and staff time that can easily run into the millions. When we prevail, large groups of employees receive back pay or other compensation and we earn a fair fee. A working class plaintiff, for that matter, anyone outside of the moneyed class, simply can’t shoulder the burden. It’s hard enough for us lawyers, not too many of us can take on the risk of these cases.
