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.
According to the New York Times, a National Labor Relations Board office claims Thomson Reuters Corp. violated federal labor law with its Twitter policy.
“Labor law specialists say employees have the right to criticize or disparage their companies or supervisors as part of a conversation aimed at improving working conditions, but do not have the right to merely curse supervisors or make untrue, disloyal statements that damage a company’s reputation.”
Regardless of the legal right, it simply isn’t smart to bad mouth your employer using social media. That being said, the NLRB action indicates that American free speech principles remain alive and well, even if the speech is limited to 140 characters.
In a bill sponsored by Senator Charles Schumer, all rental cars must remain parked until they are fixed. He went on to state:
“Rental car companies should be immediately barred from renting cars that would be pulled from showrooms and car dealer lots because of safety recall concerns….This is a serious public safety issue and, tragically, we have already seen the grave and devastating consequences of inaction. This bill is just plain common sense – rental car companies should not be in the business of renting cars that pose serious risks to drivers and passengers. We need to keep these cars off roads until they are fixed, and the Safe Rental Car Act will make sure that’s exactly what happens.”
The proposed Senate Bill is just common sense.
In California, rental car companies already have a duty to only rent safe vehicles. In the event of a recall, the rental company will receive notice, just like any other owner and is obliged to take care of the problem so that the known defect does not cause injury to an innocent renter.
Juries, on the other hand, are business’ conscience.
You know what they say: Busy people get things done.
So, we’re delighted to announce that Bill Daniels, one of the busiest and savviest trial lawyers in Southern California, has agreed to be our “ambassador” in the region. We know he will get a lot done in helping us fight injustice and hold wrongdoers accountable; as our new Southern California State Coordinator, Bill will work to expand our visibility, support and impact in the Golden State.
“When powerful companies, special interests or government don’t follow the rules, that can be dangerous for Americans,” Bill said upon his appointment. “Whenever Americans need protection from those rule-breakers, they have a champion in Public Justice. I’m proud to join the Public Justice team here in Southern California.”
Bill, founder of Bill Daniels Law Offices, APC in Encino, is renowned for winning a $20.5 million verdict against Max Factor heir Andrew Luster in a high profile sexual battery case in 2003. He’s also noted for his work in major class action litigation, including Guittierez v. State Farm and Bednar v. Allstate, both resulting in large recoveries against the insurance giants.
A graduate of Loyola Law School in Los Angeles, Daniels is a former board member of the Consumer Attorneys Association of Los Angeles and a founding member of Loyola’s Civil Justice Program and the Advanced Trial Studies Program. Los Angeles Magazine has named him a southern California “Super Lawyer” for each year beginning in 2007. Daniels is also Editor Emeritus and a columnist for Advocate Magazine and blogs at http://billdanielsblog.com.
Please call on Bill about potential Public Justice cases or appeals, to arrange speaking or publishing opportunities, to discuss cy pres awards, or to join and give to the Public Justice Foundation. You can reach him at (818) 907-8073 or firstname.lastname@example.org.
Our inaugural MCLE event was a success!
Thank you Molly Murphy for joining us to learn more about how to better prepare our witnesses for deposition and trial.
Join us for our next event:
Social Networking On The Internet For The Small Law Office
January 12, 2011
6:00 p.m. to 7:00 p.m
16133 Ventura Boulevard, Penthouse Suite “A”
Encino, California 91436
William A. Daniels, Esq.
Trial Lawyer, Loyola Law School Advocacy Institute Board of Governors
Sumner M. Davenport
Solutions Consultant – Social Media, Website Development, Internet Marketing
Encino Lawyers Association
The ELA has a simple purpose: To promote Encino as a center of excellence in legal services. To provide local and low-cost educational opportunities (MCLE) for the local legal community. To facilitate quality cross-referral opportunities along the Ventura Boulevard corridor in the San Fernando Valley.
A. Bias, a Fact of Humanity.
Bias is a fact of human life. Since the law profession is largely populated by humans, that means bias is a fact of the legal world. This is the case despite the best wishes or intentions of any one of us. Accept it as true.
So, as a collective of legal minds, where do our biases lie? The answer, as we know from voir dire is that the human capacity for prejudice and bias is pretty much infinite. Even so, there are areas of bias against certain groups that we know are especially critical. The most prominent include bias based on characteristics such as: gender; race or ethnicity; national origin; religion; age; sexual orientation and; social status (ie., poverty).
Why do we even care whether there is bias in our profession? Well, it has to do with the very essence of our role as agents of justice. After all, our founding fathers declared:
“We hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the Pursuit of Happiness — That to secure these Rights, Governments are instituted among Men, deriving their just Powers from the Consent of the Governed, that whenever any Form of Government becomes destructive of these Ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its Foundation on such Principles, and organizing its Powers in such Form, as to them shall seem most likely to effect their Safety and Happiness.” Declaration of Independence (July 4, 1776).
Upholding the essential dignity of the human being is a core value in our system of government and by extension, our system of justice. Yet, the face of today’s society differs considerably from that seen by the founders. Consider, for example, the social evolution taking place in present day California:
The California Judicial Council has established access and fairness in the judicial system as its number-one priority. In part, this concern has evolved from the realization that the state’s demographic profile has changed dramatically in the past 20 years and will continue to do so. For example, Whites, who are now 57 percent of the state’s population, will decrease to 40.5 percent by the year 2020. The 224 different languages or dialects now spoken are expected to increase, primarily because of immigration.
Final Report of the California Judicial Council Advisory Committee on Racial and Ethnic Bias in the Courts (January 1997) at p. 1.
This phenomenon of demographic transition is not limited to California. It is a national phenomenon that will dramatically impact our profession in the years to come.
According to demographic trends compiled by the American Bar Association, by 2005, the [legal] workforce will be 73 percent white, 12 percent black, 11 percent Hispanic, 4 percent Asian and other minorities and women will make up 34.8 percent. By 2020, minorities will comprise 36 percent of all Americans. The future population will be composed of more older whites and younger minorities, and nontraditional families will proliferate. Chenault, Director’s Dialogue Fostering Diversity in the Legal Profession (http://www.michbar.org/journal).
Still, even though our nation is undergoing an demographic metamorphosis of a magnitude not seen since the massive immigration influx of the late 1800s, there is still a significant proportion of the population who do not “buy into” the notion that bias against those of a different race, creed, gender or such characteristic, creates any sort of problem for either the profession or society. This is particularly true of classes that are not subject to discrimination or bias in their daily lives.
In a 1999 interview, Philip S. Anderson, then President of the ABA, recounted how he was struck by how it is still difficult for many whites, particularly white males, to recognize that there is bias in the justice system. . . . Anderson recalled observing an open discussion among conference attendees during which “the white men said they saw no racial or gender bias in the justice system and [minority women] said they had all experienced it.” Although Anderson went on to say, “I came to the conclusion that if [the minority women] saw [bias], it’s there,” this is not the same thing as recognizing these conditions independently of being told they exist.
The Intersection of Racial and Gender Bias at p. 542.
The perception that our legal system is biased against one class of individual or another undermines public confidence in our justice institutions and in general, has a negative effect on social systems intended to aid in smoothing human interaction rather than creating discord.
Bias doesn’t always appear in an expected form. For example, one author has concluded that there is pervasive bias against men in the Family Courts of Canada, arguing the fathers are unable to obtain justice in child custody matters purely because of their gender. Colman, Gender Bias in the Family Courts of Canada: FACT OR FANTASY? (1999). The upshot of this bias, the author stated, was the men were unable to obtain justice in matters having to do with visitation and support in a justice forum.
Indeed, the California Judicial Council has expressed concern that bias colors the judgment and justice of the bench in our Golden State. One pamphlet directed at judges asks:
Have you ever:
Told an off-color joke in chambers? . . .
Remarked to a female attorney how her family commitments might interfere with her responsibilities to the Court?
Hesitated to award a father primary child custody or given a smaller support order if the paying spouse is the mother primarily because of their gender?
* * *
WELL, CONSIDER THIS:
According to a survey conducted in a large metropolitan legal community, California judges have done all that and more. Apparently we are not the enlightened, with-it bench of the 90’s we thought we were.
Lawyers who practice before us, the support personnel who work with us, and our very own colleagues report that we sometimes adopt a degrading and demeaning tone and attitude toward women give fathers a raw deal and are harder on male defendants in criminal matters, afford less time for women in oral argument and find the same argument less persuasive when made by a woman. Gender Bias Guidelines for Judicial Officers (Cal. 1996) at pp. 1, 4.
B. The Cost of Bias.
The ultimate cost of bias goes beyond undermining the rights of those whom our justice system is intended to serve. It also has a profound corrosive effect on practitioners and the judiciary.
Take the experience of United States Supreme Court Justice Sandra Day O’Connor.
In 1952, after Justice O’Connor graduated third in her class from Stanford Law School, she tried to find a law job in San Francisco. No firm would interview her.
Ms. O’Connor finally got a job offer at the Los Angeles office of Gibson, Dunn & Crutcher through a friend, future attorney general William French Smith. The offer, however, was a job as a legal secretary. Ms. O’Connor turned the position down. She eventually found employment in the public section, the traditional stepping stone of the minority practitioner, and was hired as a deputy county attorney in San Mateo County.
So, that was 1952, you might say. Things are different today.
That may be true for some. Yet, for others, it is not quite so, even in these enlightened times.
In the 10-year period from 1984 to 1994, the number of minority law school students almost doubled, increasing for 3,169 to 6,099, or from 8.6 percent to 15.5 percent, of total graduates. . . . Despite these increases, the total number of minorities at the partnership level in major private firms nationwide is 1,160, or 2.8 percent of the total. Nationwide statistics support the claim that despite the growing numbers of minority law students graduating from top-ranked law schools, the country’s largest private law firms are recruiting minimal numbers of minority attorneys and retaining even fewer minority attorneys at the senior associate and partner levels.
Final Report of the California Judicial Council Advisory Committee on Racial and Ethnic Bias in the Courts (January 1997) at p. 6.
So, bias costs our profession by depriving us of our best and brightest minds simply because they are not the “correct” gender, color or from the “proper” background. In an egalitarian society, this is an intolerable waste of human capital, not to mention morally indefensible.
C. Remedies for Bias in the Legal System.
Our best ally in eliminating bias in our profession are our own good sensibilities. The literature is filled with discussions on identifying bias, eliminating bias and developing our own sensitivities towards our treatment of others. We should read, discuss and reflect on a constant basis.
Of course, sometimes, self-enlightenment doesn’t take. So, the law also provides us with tools to address bias where it affects ourselves or our clients.
The primary anti-bias weapon in the federal arena is Title VII of the Civil Rights Act of 1964. (42 U.S.C. 21 § 2000e et seq.) Title VII prohibits employment discrimination based on race, religion, color, gender or national origin and covers all state and local government employers, all private and public educational institutions and all private employers of 15 or more individuals.
Under Title VII it is illegal to discriminate in hiring and firing, compensation, assignment, transfer or promotion, recruitment, pay and many other terms and conditions of employment. An excellent primer and CLE-type quiz by Gregory Alan Rutchik, Esq., regarding Title VII can be found on the internet. (See, Rutchik, Accommodating Religion in the Workplace.)
California anti-discrimination laws overlap the federal statutes and are found at Government Code § 12940 et seq. In the California statutory scheme, the definition of employer is much more liberal than under Title VII.
Where bench officers act in biased fashion or practitioners exhibit bias in a courtroom, the offending parties they may find themselves in violation of Canons 3B(5) and (6) of the California Code of Judicial Ethics, which provide:
(5) A judge shall perform judicial duties without bias or prejudice. A judge shall not, in the performance of judicial duties, engage in speech, gestures, or other conduct that would reasonably be perceived as (1) bias or prejudice, including but not limited to bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation, or socioeconomic status, or (2) sexual harassment.
(6) A judge shall require lawyers in proceedings before the judge to refrain from manifesting, by words or conduct, bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation, or socioeconomic status against parties, witnesses, counsel, or others. This Canon does not preclude legitimate advocacy when race, sex, religion, national origin, disability, age, sexual orientation, socioeconomic status, or other similar factors are issues in the proceeding.
Section 1(a) of the Standards of Judicial Administration (Appendix to the California Rules of Court Division 1) advises each judge:
§ 1. Court’s duty to prohibit bias
(a) [General] To preserve the integrity and impartiality of the judicial system, each judge should:
(1) (Ensure fairness) Ensure that courtroom proceedings are conducted in a manner that is fair and impartial to all of the participants;
(2) (Refrain from and prohibit biased conduct) In all courtroom proceedings, refrain from engaging in conduct and prohibit others from engaging in conduct that exhibits bias, including but not limited to bias based on disability, gender, race, religion, ethnicity, and sexual orientation, whether that bias is directed toward counsel, court personnel, witnesses, parties, jurors, or any other participants;
(3) (Ensure unbiased decisions) Ensure that all orders, rulings, and decisions are based on the sound exercise of judicial discretion and the balancing of competing rights and interests and are not influenced by stereotypes or biases.
So, first we must acknowledge that we all carry around our own particular biases. It’s part of being a human being.
Then, we must recognize that, as officers of the American justice system, we are duty-bound to ensure that our halls of justice provide equal justice to all who are in need. That means eliminating bias at all levels of our profession; for a biased justice system is inherently unfair.
Bias has a cost to our legal system because it undermines society’s confidence that disputes will be resolved fairly and that we truly live in a nation of laws not men.
We do our part by recognizing bias in ourselves and striving to eliminate it from our profession. Let’s be vigorous in carrying out our charge.
Trying a bad faith case is just like trying any other case and then again, it isn’t.
As in any trial, the plaintiff’s case of bad faith against an offending carrier must be presented in terms of right and wrong, social responsibility and doing justice by restoring balance between insurer and insured.
Yet, in a larger sense, the bad faith trial is in its essence a retelling of the Biblical tale of how David took on Goliath. In an insurance transaction, the carrier is the party with the power. The carrier has the power of the pen when the insurance contract is made, it has the power of knowledge when the claim is presented, it has the power of the purse when it decides to deprive its insured of benefits rightfully owed.
This tale of the use and abuse of power is set on a stage that is at both familiar, since we all have insurance, and strange, as insurance law can seem arcane and confusing.
When your tale of how the defendant abused its power position to the detriment of its trusting insured comes through, you will obtain a great result for your client.
Some tips continued on my website.
I was sitting in a church pew at Old St. Mary’s in San Francisco one Saturday with my wife and two children, looking around for the rest of my family. It was 12:55, the wedding started at one and not one of my four brothers and sisters, nor their children nor my parents were anywhere to be seen.
“I can’t believe it,” I whispered to my wife. “They’re going to be late.” She laughed under her breath. “Oh course they’re going to be late,” she whispered back. “Your parents are always late and anyone traveling with them is going to get sucked into that vortex.”
I knew she was right. Growing up, we were always late for services, not just most of the time, all of the time. My mother blamed it on having to get five children ready, but my wife pooh-poohs that notion. “If you’re always ten minutes late, then just start getting ready ten minutes earlier,” she says, as if that were the easiest thing in the world.
One of my brothers filled the pew with his brood right, as they say, at the wire. “Where are the folks?” I asked him, though I already knew the answer. “They’re just running a little behind,” he said.
I could hear my wife chuckling.
We all know the practitioner who is addicted to late. We notice the little signs. The anxious attorney peering over their assistant’s shoulder as if a steady glare can make fingers type that final draft just a little faster. Malevolent cursing at the copy machine when some paper jams at a critical inopportune moment. The attorney service driver hanging around in the reception area, waiting to make a mad dash for the filing window.
I remember in my law clerk days on mid-Wilshire there was a lawyer who seemed creatively limited only in the ways in which he could test the deadline fates. I remember one breathless water cooler tale about how he and his associate packed into a sedan at the eleventh and one half hour, blasted through Koreatown traffic, hit a movie shoot diversion that shaved a precious minute off his razor-thin timeline, leaving him begging through a closed door for some disinterested filing clerk to please take the summary judgment opposition.
That’s how I learned about doing an ex parte application to ask for relief when a filing doesn’t make it, so to speak, to the church on time.
I recall the prominent trial lawyer at the Stanley Mosk courthouse who I ran into during the first phase of his bifurcated trial. He related how his office had filed a complaint on the final minute of the last day and then somehow, the filing got lost. The first phase of the trial was just to find out if his case was barred by the statute of limitations. Not a great way to introduce a jury to your tricky causation p.i. claim.
I think the introduction at www.procrastinators-anonymous.org says it brilliantly:
Not a Laughing Matter! The jokes about procrastination infuriate me. This is not a funny problem – not if you are suffering from true, chronic procrastination. Lawyers have been disbarred due to procrastination. Small business owners have lost their businesses due to procrastination. People’s lives fall apart and are destroyed due to procrastination. This is not a funny problem.
So, if you fit the chronic procrastinator profile, just what can you do?
Probably the most important thing is to recognize you have a habit that needs dealing with. Procrastination, the experts say, has various and sundry causes such as fear of failure, fear of success, distracting work environment or just simply too much to do and not enough time.
Coming from a chronically procrastinating clan, I’ve had to train myself over the years to get ahead of the curve in my work, with what I believe is reasonable success (just don’t ask Cindy Cantu about my column deadline habits). My particular path to redemption included several near death experiences, a senior partner who is chronically early, an able assistant who hates doing work right on deadline and a supportive spouse who will kick my @#$ when necessity requires.
So, examine your workload, reflect and remember that , as the Chinese love to remind us, a journey of a thousand miles always begins with a single step,. Take it from a recovering procrastinator, there is boundless joy, as well as much lower anxiety, in getting ahead of the curve.
Just don’t keep putting off looking for a cure to what ails you. Oh, and for the record, I am filing this column on the day it is due. First time in months, but I’ll still take the win, thank you very much.
Some useful tips from www.johnplaceonline.com:
You’re looking for the sweet spot between procrastination and frenzy, the magic pace at which the assembly line of your life runs smoothly.
Here are 11 common causes of procrastination and corresponding tips to help you find the pace you’re looking for:
• Complicated-task anxiety: Break big, complicated tasks into smaller pieces. Complete a starter task, no matter how small.
• Fear of imperfection: Accept that perfection is rarely attainable and seldom necessary. You’re a person, not a robot. Use the 80/20 rule whenever appropriate.
• Indecision: Determine your decision-making criteria, then set a deadline for your decision. Ask a friend to hold you accountable.
• Priority confusion: Distinguish obligations from options. What are you really responsible for? List and prioritize tasks.
• Boredom from minutiae: Automate simple repetitive tasks whenever possible.
• Lack of focus: Minimize distractions. Check e-mail and voicemail only twice per day instead of every 5 minutes. Find a quiet room where you can concentrate. Resist the urge to keep taking breaks.
• Poor organizational skills: Clean your work area. Put tools and utensils in their proper place so you can find them when you need them.
• Laziness: Remind yourself of the consequences of procrastination. Resist the urge to be a couch potato. Try to complete several small tasks to provide a feeling of accomplishment. Reward yourself.
• Lack of energy: Maintain a regular sleep routine. Eat healthy. Exercise regularly. Do not skip breakfast.
• Early morning lag: Before you stop working each day, make a list of the tasks you want to begin first thing the following morning so you can hit the ground running the next day.
• Post-lunch fatigue: Before leaving for lunch, make a list of the things you plan to do when you get back so you can pick up where you left off. Avoid eating a heavy lunch.
One of the reasons I enjoy class actions and complex litigation is they force you to be disciplined. Take the simple task of organizing and interviewing percipient witnesses.
In individual cases, you have a list of witnesses, you interview or depose them as seems appropriate and it’s pretty much a simple process. In class actions, you need a system or things can get out of hand pretty quick.
One of my favorite parts of prosecuting a class action is getting a contact list for the potential (we call them “putative”) class members and conducting the initial interviews that tell me just what it is that I have on my plate.
Getting the list isn’t always a simple deal. In the wage and hour cases I’ve litigating during the past several years, I’ve seen both
extremes. Sometimes the defense will give up the list almost upon request. Usually this means they are feeling pretty good about their prospects. Sometimes, the defense fights tooth and nail, withholding the list until ordered by the court. Usually this means they are feeling insecure and then prepare for a bloody discovery battle.
We generally ask for a class list as soon as discovery opens and we ask in at least three different ways, which is further explained in this article on my website.
My good friend, John Burge, was going through some medical records in a birth injury case I am litigating. I had asked him to take a look at the records to see if I could get an estimate on having them reviewed by an obstetrical nurse for organization and translation. (There are a bunch of people who do this work. John is with BMC Group. I also use Nancy Fraser at Med Legal Consulting. There is no shortage of vendors in this area.)
While he was looking at the records, John asked me if I had them in pdf format by any chance. Now, in case you’re not familiar, “pdf” is shorthand for Adobe’s portable document format, which allows you to read and manipulate documents on personal computers in all sorts of interesting ways. I knew exactly what John was talking about since, in complex litigation, we commonly ship information, pleadings and whatnot by electronic mail to save the cost of couriers and the U.S. Postal Service.
“I don’t,” I told John. He was rifling through one of the records and making conversation as he reviewed. “Well, it’s something you can ask for. Most of the copy services scan the original documents and convert them to pdf anyway,” he said. “If you order the pdf instead of the hard copy, it’s usually less expensive too.”
Now, whenever someone points out a way for me to save money on case costs without losing efficiency, I’m interested. It just so happened that we had some medical record subpoenas in the same case from the defense, and my assistant asked me if I wanted to order copies. “See if they have pdf,” I told her. She checked and lo and behold, here’s what we found.
As pdf’s, the copy service would charge us $.11 to $.12 per page. To have the medical records delivered in hard copy, they would charge $.40 per page. Yikes!
Now, I know that the cost of copying on my trusty Xerox machine is about 1-1/2 pennies per page if you exclude the monthly lease cost. So, by simply ordering medical records in pdf format and then printing them out as needed, I figure I am saving myself close to 75% of the cost of obtaining records.
This might not be a big deal in a small P.I. case or other simple matters, but in the kind of cases I work on which tend to be catastrophic, sometimes we wind up ordering many thousands of pages of records, all of which are reviewed and most of which, following the initial review, never see the light of day again.
With a pdf, that all changes. Not only am I saving myself the cost of copying, but I don’t need to pay for rental on the physical space to keep the file cabinet that stores the records during the course of the case. At the end of the action, I don’t have to pay the storage company to keep the hard copy for the three to five years my malpractice carrier prefers.
Even better, before I discovered this little money-saving way of handling records, the way we handled our medical records flow was typically: order em, get em, make working copies, organize working copies into books, then store the originals and working copies in a drawer somewhere. I have interviewed paralegals for potential employment and discovered that there are folks who believe that manually handling records qualifies as, not just an important job skill, but one that justifies a premium wage. For me, it’s just overhead that I’d prefer to reduce if I can.
I feel comfortable with a laptop computer and a large hard drive for managing my documents. I have a Mac Book Pro with a 17-inch screen that allows me to open multiple documents at a time and work with them side by side. I use Adobe Acrobat Professional which allows me to manipulate pdf files much in the same way that I manipulate paper.
Doing things electronically did take some getting used to, but the effort has been worth it, since it saves both time and expense. Plus, now I keep everything in one or two places versus three or four, so it’s much easier to find things even as the file grows.
In my birth injury case I am ordering all the medical records as pdf’s and my co-counsel is going to be pleasantly surprised when our multiple thousands of dollars in records copying costs drops by 75%. Me, I’m just happy to have a practice tip I can share with my friends, though I’ll take the cost savings just the same.