If you’ve followed my writings over the years, you know I believe that civil trial lawyers are an important part of the liberty protections our founders incorporated in American constitutional democracy.
I found a blog note on the Perlmutter & Schuelke, LLP (they are Austin, Texas lawyers) website that is brief and to the point and I quote it verbatim here:
“For the last decade, trial lawyers have been the victims of one of the most successful marketing campaigns ever. Those of us that choose to represent victims of others’ carelessness have been portrayed as sharks, snakes, or worse. It seems that “trial lawyer” is now close to a cuss word.
“But trial lawyers do an amazing amount of good for the Country. Today’s National Law Journal has just such a story, describing how twenty Minn. law firms are banding together to provide pro bono representation to many of the victims of the 2007 Minneapolis bridge collapse. One firm (ironically a firm representing the defendants in one suit I have) has agreed to pay $1 million to an engineering firm to help investigate the collapse. All for free.
“And this conduct isn’t unique. Following the 9/11 attacks on the World Trade Center, the American Trial Lawyer’s Association (now AAJ) founded Trial Lawyers Care, a non-profit designed to provide free legal services to the victims of the Sept. 11th terrorist attacks. The project, which was the largest pro bono project in the history of American jurisprudence, has expanded to other issues, such as trying to help victims of Hurricane Katrina.
“But the good work goes on even at the local level. I think I’m fairly representative of the trial lawyers in Austin. Not only does my firm engage in significant pro bono efforts, but I serve on the boards of local non-profits, am an alumnus of Leadership Austin (class of 2006 — Best Class Ever), volunteer at an elementary school in East Austin, coach my kids’ youth sports teams, and am active in my church. And I’m not unique. You can find various trial lawyers in leadership positions all over Austin helping make this town better for all of us.
“So the next time you hear someone throw out the phrase “trial lawyer” as an intended insult, I hope you’ll at least take a minute to appreciate that we do good work too.”
Now, okay, I don’t expect to a few good thoughts to change everyone’s thinking on whether trial lawyers are angels or devils. But if deeds are more important than words, shouldn’t we be focusing more on what trial lawyers actually do versus what people say about them?
Interesting report in the Wall Street Journal this morning that Bank of America Corp. is dropping its practice of requiring customers to arbitrate disputes rather than litigate in a regular court setting.
This is a big deal, since up until now, big business has typically clung to arbitration, touting it as “less expensive and more efficient” than the jury system. But arbitration has an ugly side and fairness concerns have recently prompted two major providers — the American Arbitration Association and the National Arbitration Forum — to announce that they will no longer participate in consumer debt collection disputes.
I note that B of A first announced it would force customers to arbitration in 1992, so we’re talking about a failed experiment that took almost two decades to unwind.
The bank is not drawing any attention to its policy change, there will be no dedicated letter going out to customers. Also, the change will not affect securities disputes or those involving high net worth individuals.
Still, the announcement is a tremendous endorsement for the American civil jury system. Once again, our founding fathers are shown as pretty smart guys (civil juries, as you may or may not know, are in the U.S. Constitution and most state constitutions).
Obviously, we’re big fans of the jury system, which we believe is pure democracy in action.
Japan has often been held out as a model of a society with an exemplary justice system, when critics complain the U.S. has too many lawyers they very often cite Japan as their primary example.
So, it was with great interest we saw this report from the Associated Press. The story pretty much speaks for itself:
August 2, 2009
Japan holds 1st criminal jury trial since WWII
Associated Press Writer
Japan opened its first jury trial since World War II on Monday under a major overhaul of a legal system that has often been criticized as unfair and arduous.
Six jurors are working with three judges to hand down a verdict for 72-year-old Katsuyoshi Fujii, who has been charged with murder in the fatal stabbing of a 66-year-old neighbor in May.
Japanese trials — which up to now have been decided by panels of judges — have long been criticized as lacking in transparency and taking years to reach a verdict.
Police interrogate suspects in closed rooms without an attorney present, a practice that critics say leads to coerced confessions that have convicted the innocent. Criminal trials have a 99 percent conviction rate.
In the past, defendants’ pleas that their confessions were coerced have fallen on deaf ears. Proponents of the jury system hope that jurors will be more likely to consider such claims and that a ordinary citizen on the jury might in general be more sympathetic than judges have been in the past.
“With the change, trials will become more democratic,” Justice Minister Eisuke Sato said. “We hope to achieve a justice system that is speedier, more accessible and reliable.”
Japan launched a jury trial system in 1928, but dropped it in 1943 as the country headed into chaos with World War II. The system was never popular because legal professionals opposed allowing regular people as jurors, and defendants had to pay legal fees.
Much remains uncertain for the first postwar jury trial, opening in Tokyo District Court.
Expectations are high for emotional drama and engaging arguments long associated with American courtrooms.
One change is certain. The verdict and sentencing are scheduled to come in just four days, to allow jurors to return to their regular lives.
Fujii’s lawyers say he is pleading guilty but that they are asking for leniency in sentencing because he has expressed remorse.
Murder carries a maximum penalty of death in Japan, although it’s unlikely in a case involving one victim.
The son of the victim is expected to take the stand to plead with the jurors, according to the court. His mother was stabbed to death, allegedly after a quarrel, the court said.
“This is a historic trial, and I feel I must do my best to be up to the job,” prosecutor Tetsuo Maeda told reporters on NKH TV news, as he headed into the courtroom, where jury selection started in the morning.
Japan is set to hear about 2,000 to 3,000 jury trials per year, all involving serious crimes such as murder and kidnapping. About 300,000 candidates are being randomly selected from eligible voters nationwide annually to serve jury duty each year.
Since 2004, when the nation decided on the new jury system, legal experts have held seminars to make trials easier to understand and have held about 300 mock trials.
Some people are still reluctant to serve on a jury.
“It is such a heavy responsibility to cast judgment on other people,” said Tomoe Obata, a 49-year-old office worker, who attended a mock trial earlier this year. “What if I’m assigned to a murder case and we are asked to consider the death penalty?”
With the arrival of a jury trial, Japanese will have a chance to play a bigger role in doling out justice, Bar Association President Makoto Miyazaki said in a recent interview with The Associated Press.
“A more transparent and fair criminal justice system serves everyone’s interests,” he said.
Personal injury law includes work in the elder abuse area and it’s important to understand that, in California, the remedies for elder abuse are much stronger than we are allowed for medical malpractice.
In general, California law is restrictive when it comes to medical malpractice. Under the MICRA statutes, general damages (meaning pain and suffering) are limited to no more than $250,000 no matter how horrible the injury.
Attorney fee caps also limit the amount you can pay a lawyer under a contingent fee contract, which means that unless you are able to pay by the hour, your choices for representation are limited, if you are able to find a lawyer willing to take your case at all.
The California legislature provided some relief from these restrictions in the case of elder abuse, but with some caveats.
Our Supreme Court explained in Delaney v. Baker (1999) 20 Cal.4th 23, that where a doctor, hospital or nursing home are reckless in their care of an elder (defined as someone 65 years of age or older or a dependant adult), then the MICRA limits do not apply. Discussing the meaning of Welfare & Institutions Code section 15600 et seq., the court said:
“In order to obtain the remedies available in section 15657, a plaintiff must demonstrate by clear and convincing evidence that defendant is guilty of something more than negligence; he or she must show reckless, oppressive, fraudulent, or malicious conduct. The latter three categories involve “intentional,” “willful,” or “conscious” wrongdoing of a “despicable” or “injurious” nature. (Civ. Code, § 3294, subd. (c); see also College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 721 [34 Cal.Rptr.2d 898, 882 P.2d 894].) (4 ) “Recklessness” refers to a subjective state of culpability greater than simple negligence, which has been described as a “deliberate disregard” of the “high degree of probability” that an injury will occur (BAJI No. 12.77 [defining “recklessness” in the context of intentional infliction of emotional distress action]); see also Rest.2d Torts, § 500.) Recklessness, unlike negligence, involves more than “inadvertence, incompetence, unskillfulness, or a failure to take precautions” but rather rises to the level of a “conscious choice of a course of action … with knowledge of *32 the serious danger to others involved in it.” (Rest.2d Torts, § 500, com. (g), p. 590.)”
I mention this because MICRA limits have definitely closed the courthouse door to many claims in California. But where there are facts suggesting elder abuse, it’s worthwhile to consult a knowledgeable attorney to find out if there is a remedy under the law.