Avoiding Insurance Disaster.
It seems like whenever catastrophe strikes, insurance problems rear their ugly head. It might be your home isn’t sufficiently covered to pay for repairing the damage. Or, you might be the victim of unfair adjusting practices, such as a carrier that would rather fight than pay its fair share.
In a disaster such fire, flood or earthquake, you might not even know who your insurance company is, since your policies and other important documents may well be cold ash or soggy trash.
If you suffer a disaster and have to make a claim on your insurance, keep these three principles in mind:
1. Get a Copy of Your Policy and read It.
Insurance always begins with a written contract. So, the first thing that needs to be done when getting ready to make a claim is to get a copy of every policy that might possibly provide coverage for your damaged property and read them all from front to back.
If you don’t have the policy forms because they were lost, destroyed or are otherwise unavailable, you’ll have to get policy reconstructions from the insurance company. Requests can be made to your agent or directly to the insurance company’s policy services department. If you don’t remember who your insurance company is, you’ll need to do a little detective work. Start with your checking account. A review of your banking records may well lead you to every insurer that might provide coverage for the damaged property.
2. Check your coverages.
Your insurance policy provides coverage for certain types of loss, and excludes coverage for others. That’s why it’s important to get a copy of the contract right at the beginning.
One issue that frequently arises following a catastrophic loss is the damaged property was not adequately insured in the first place. Where an agent or broker provided you with professional advice on the appropriate coverage or bound coverage based upon their own professional expertise, there may be a claim for professional negligence where the property isn’t properly protected.
3. Watch out for Time Limits
Property insurance contracts generally have their own time limits, called “statute of limitations,” built in, and the period in which to file suit to enforce the contract is generally less than the period that applies to a plain vanilla written contract.
When in doubt, consult a legal professional about what time limits will apply to your claim. Be proactive. Once you have loss, there is a clock ticking somewhere that might limit your ability to recover policy benefits.
I stumbled across an odd manifestation of federalism the other day when I tried to subpoena two Veterans Administrations employees in a product liability case.
It all started out normally enough. My client was injured at a V.A. facility and these were two percipient witnesses. I called them up and asked if I could depose them at a convenient time and place. They agreed to accept service by facsimile and I duly faxed them copies of their subpoenas.
Then came the letter from a senior attorney with the Department of Veterans Affairs:
Dear Mr. Daniels,
The United States Department of Veterans Affairs (VA) hereby requests that your office voluntarily withdraw its subpoena directed to its employee(s). The Superior Court does not have jurisdiction to compel the production of the records because Federal regulations prohibit their disclosure.
VA regulations restrict disclosure of official information by VA employees. 38 CFR, part 14 provides:
VA personnel shall not, in response to a request or demand for testimony or production of records in legal proceedings, comment or testify or produce records without the prior written approval of the responsible official designated in §14.807(b). VA personnel may only testify concerning or comment upon official VA information, subjects or activities, or produce records that were specified in writing, submitted to and properly approved by the responsible VA official.
38 CFR §14.806.
While the VA attorney relied primarily on two federal decisions to support his position, United States ex rel Touhy v. Ragen (1951) 340 U.S. 462 and Swett v. Schenk (9th Cir. 1986) 792 F.2d 1447, he also noted that the state courts have weighed in on the issue as well.
The California Court of Appeals, denying enforcement of a state court subpoena against a federal official, observed, “[A]n attempt to compel compliance with [a court subpoena] founders like the Titanic on the hard rock of sovereign immunity.” Civiletti v. Municipal Court (1981) 116 Cal.App.3d 105, 109, citing Touhy v. Ragen.
Okay, now I know you’re thinking, “Hey, the Titanic hit an iceberg so what’s that Civiletti court talking about? Besides, I’m entitled to my discovery and what’s the big deal here?”
Well, it turns out that even though our appellate courts may mix their metaphors from time to time, this is an area where the feds hold the playing cards, meaning you need to be aware of the Touhy doctrine when pursuing a claim involving federal turf.
Touhy involved a habeus corpus proceeding in District Court, in which an inmate in Illinois’ state penitentiary at Joliet was looking to get out. The inmate subpoenaed the F.B.I.’s file in his case, under the theory that the documents would prove he was fraudulently convicted. When the special agent in charge refused to comply, citing a Justice Department regulation similar to the V.A. reg in my case, the court held the special agent in contempt. The Seventh Circuit reversed and the U.S. Supreme Court affirmed the reversal.
The head of a federal agency has the authority, the Supremes held, to publish regulations restricting judicial access to documents or witnesses within the agency, under the doctrine of sovereign immunity.
That doctrine is not restricted to actions to which the United States itself is a party. It extends to officials of the federal government when they act as agents of the United States. The general rule is that a suit is against the sovereign if the effect of the court order sought would be to compel the federal government to act or would “interfere with the public administration.”
Civiletti, supra, 116 Cal.App.3d at 109. There are two exceptions to this general rule: (1) actions by officers beyond their statutory powers and (2) powers exercised within the scope that are themselves constitutionally void, either on their face or in the manner they are used. Dugan v. Rank (1963) 372 U.S. 609, 621-622.
In my case, I scratched my head a little, called around a lot and eventually was able to reach a compromise that allowed both sides to inspect the equipment I am alleging is defective. The V.A. attorney explained that, even though he understood that any recovery against the manufacturer would help the government with its workers compensation lien, the policy of the agency was to discourage access by lawyers in discovery, because someone, somewhere, had decided long ago that it is the best way to conserve government resources.
The justice system just has to make due on its own, I suppose.
So, the next time you find yourself with a case involving injury on a federal reservation or with federal employees as potential witnesses, make sure you’ve got the Touhy doctrine clearly in your sight. Forewarned, as they say, is forearmed.
Breach of the implied covenant of good faith and fair dealing in an insurance contract, or “bad faith” in the vernacular, is a tricky critter.
Ten years ago, bad faith was a staple for consumer lawyers; today, some will tell you it’s a dying area of the law. Don’t believe the doomsayers. While there is no question that bad faith litigation is not a practice area for the faint of heart, bad faith law remains a powerful tool to obtain justice for consumers.
With all that in mind, this is not an area for the unprepared. Here are five fatal mistakes you should take care to avoid:
1. Not looking for the “mean” in your case.
“The mark of a good bad faith case is meanness,” one of my mentors once told me. He believed that for a bad faith case to fly, there had to be conduct beyond something irritating or just maddening.
What you need to look for is conduct that is mean, insensitive or unfeeling. If you’re just uneasy or have some vague notion the world should be different, be sympathetic, but take a careful look at the law before diving in.
2. Forgetting to make sure there’s coverage.
No policy, no bad faith is the simple rule. Though there are areas where the simple rule won’t apply, that doesn’t mean you shouldn’t pay coverage close heed right from the get go.
The lesson here is, never take coverage for granted. Make sure you understand the carrier’s reasoning for doing what it did in every intimate detail. Study the correspondence, collect the key cases, gather whatever articles you can find on point. Also, bone up on the genuine dispute doctrine whenever coverage is in dispute. See, e.g., Chateau Chamberay Homeowners Ass’n v. Associated Intern. Ins. Co. (2001) 90 Cal.App.4th 335.
3. Not gathering all the facts during your investigation.
There’s a temptation to seize on one or two key documents or bits of evidence that seem to show outrageous conduct and try to ride those through to the end, ignoring everything else. Resist that temptation.
The insurance regulations require carriers to keep records on everything material that takes place during a claim. Get copies of all that stuff and make sure the defense brings the originals to deposition so you can do your own inspection. If there’s an underwriting issue, get all those files as well.
Make sure your client gives you every scrap of paper connected with the claim, whether they think it is relevant or not. If the client is a poor record keeper, worry about that. It is amazing how a small, stray piece of documentation can rise up and bite you in a bad faith case.
A little paranoia is probably a good thing here. Remember, the law right now is probably as favorable for carriers as it’s been in several generations. Conduct yourself accordingly.
4. Not preparing for trial.
Don’t work up the case for settlement or to win on summary judgment. Prepare the darned thing for trial. Anticipate the worst and then if something better happens, celebrate. Only, do not ever under-prepare a bad faith case.
Remember what insurance companies do for a living. They sell promises on paper, pay some claims, deny the rest and defend their decision-making process to the death. You may have a great bad faith case in your file cabinet, but if you aren’t experienced in the area, beware, because the folks defending will be.
So, put in the time and gather the knowledge. Then put everything together as if you will go to trial.
5. Not facing reality.
There’s a difference between being a believer and being a fool. Believers understand their cases, warts and all, but know in their hearts they can steer the client through the system and get justice. Fools don’t understand what they have in their file cabinet, but bull ahead anyway.
As you litigate, make sure you constantly study, analyze and evaluate.
When you choose to litigate against a carrier, go in smart. Consult an experienced practitioner where you have questions. Remember to avoid the five common mistakes and, good hunting!
Insurance bad faith cases are usually hard fought and can be bitter.
Generally speaking, when we take on a carrier for acting contrary to its insured’s interests and allege those actions are malicious justifying punitive damages, the folks on the defense side tend to take it personally.
So, the first rule of discovery in the bad faith case is, assume you are in for a tough fight. Which, in turn, leads to the second and third rules: know your adversary and be prepared.
The bad news that the general practitioner faces in prosecuting a bad faith case is that the defense team will usually be much better schooled in the fine points of insurance than an attorney who does not work with insurance matters on a daily basis.
The good news that the general practitioner can take heart from is B the purpose of bad faith law is to act as an equalizer between the powerful carriers who adjust claims for a living and the ordinary insured who probably never wanted to have a claim and, with luck, will never have another. Insurance regulations require that insurance companies keep a record of all material claims decisions. So, where there is wrongdoing, there is almost always a record of the bad acts waiting to be uncovered.
The key discovery strategy in defending bad faith cases is to deny the plaintiff information. However, if you know where and how to dig, it’s not that difficult to get the evidence you need to put on your successful case.
II. Know your adversary.
People spend their lives learning about the insurance business, which itself represents a huge, multifaceted, globally diverse industry devoted to making money by spreading risk. Generally, you do not have a lifetime to learn each and every nuance of the insurance world. So, don’t try. But do make sure you know everything you can about the facts and circumstances of the insurance business as it applies to your case.
Understand that the defendant or defendants in your prospective case may not be obvious from the face of the insurance materials your clients hand you. For example, it is not unusual to have a client provide letters on letterhead from the “Farmers Insurance Group of Companies.” Some practitioners will put this name in their complaint. Only, there is no such creature that can be sued. “Farmers Insurance Group of Companies” is simply the trade name for a collective of entities organized as inter-insurance exchanges. Usually, the proper defendants in a Farmers claims case are Farmers Group, Inc. (the management company), Farmers Insurance Exchange (the claims handling entity) and the insuring exchange (ie., Fire Insurance Exchange, Truck Insurance Exchange, etc.). See, Tran v. Farmers Group, Inc. (2002) 104 Cal.App.4th 1202 (rev. den. Mar. 26, 2003).
So, when laying out your case, always make sure you closely review the original insurance policy and declarations pages prior to determining who to name in your complaint. When in doubt, consult with experienced practitioners about who the proper parties are and why. Getting the defendants right at the beginning can save tremendous amounts of time during the case.
Also, make sure you understand who has standing to sue under the insurance policy. A business owner may not be able to sue for bad faith if the named insured is a corporation or limited liability company. On the other hand, the owner may have standing as an additional insured. The question is important where there is a potential for emotional distress and other general damage to the owner. Again, look to the policy and declarations pages for the answer.
III. Getting to the Heart of Your Case in 60 days or less.
Once you have the parties clear in your mind and have filed suit, you can prepare your initial round of discovery for service once the defendants answer or, as is more typical, demur.
I seldom use interrogatories during my initial bad faith discovery. I find it is much more productive to immediately demand the claim file(s) and, if warranted, the underwriting file(s), since these are the basic documents necessary for preparing any bad faith case for trial.
Because these files are key evidence in the case, and in order to discourage potential mischief in discovery, I ask for the documents in multiple requests, simultaneously, using a formal request for production of documents, along with a custodian of records deposition notice and notice of deposition of the person most qualified. By utilizing this process, I find I am able to exert maximum pressure on the defense to produce the entire record all at once. This process also insures that I will be able to either establish foundation for the insurance files either by direct testimony or stipulation, so that they are admissible later in the case. Do not assume that a claim file or any other document will be admitted at trial under the business records exception to the hearsay rule. Nail down the foundation as you go, it will save much grief later on.
It is also important to make sure that the original files are available during any depositions. Copies of files don’t do the originals justice B often information about file handling can be gleaned from handwriting on the file folders themselves or how the files are organized. It is much easier for insurance adjusters and other key witnesses to evade answering key questions if the original files are not in front of them. Copies of file materials are okay as part of a document production and, in fact, are easier to handle as you organize your case. But make sure you request to see the originals and insist they be produced.
Person most qualified depositions under Code of Civil Procedure section 2025.220 are the fastest way to gain general information about the basic handling of the claim or other insurance matter that lies at the heart of your case. I typically notice the person most qualified to testify regarding the identities of each and every individual who performed work or made a decision in the matter. Generally, the witness will be the primary claims adjuster, which is fine. However, the PMQ deposition helps avoid wasting time meeting and conferring over boilerplate objections and incomplete responses typical when interrogatories are served.
Also, try to determine whether or not the defense will be allowing on advice of counsel as a defense by serving a simple Request for Admission that is on point. Carriers generally do not like using the defense since it opens up areas that would otherwise be privileged. But don’t assume it won’t be used. Ask up front.
I have number of sample deposition notices, discovery requests and requests for admissions that are regularly requested from me. If you’re interested, click here for the set. Please note, the forms I provide use the old Code of Civil Procedure sections, so you should update them before using them in your case.
IV. Focusing Depositions.
Once I know who was involved with the claim or other insurance matter I am concerned with, I typically depose everyone who touched the file in any way. Even if the deposition lasts only fifteen minutes, absent a stipulation, getting the testimony is the only way to insure that all the potential holes in your cases are filled.
I prefer to videotape all key depositions, particularly the adjusters and claims personnel. The best insurance bad faith cases are generally morality plays where the attitude and demeanor of the witnesses are just as important as their precise testimony. A picture, as the saying goes, is often worth a thousand words.
When deposing insurance professionals, I almost always begin by getting them to agree with me as to basic principles such as an insurance carrier must give its insured’s interests equal weight with its own,” an insurer is obligated to conduct a thorough, fair and objective investigation into the facts of a claim,” etc. Once I establish the common framework of duty, I use those basic principles to tie down the witness while going through the claim.
Lists of duties and obligations can be gleaned from the case law, jury instructions and your experts. Make one up that works for your case and use it from day one.
In deposing witnesses, utilize the insurance files you obtained at the beginning of the case as both a guide to questioning and evidentiary support for your case. Adjusters will have diary notes, these should be analyzed and authenticated by the witness. If it is unclear just what notes or materials were created by the witness, don’t be afraid to ask. Unraveling how a claim was handled is often like piecing together an intricate puzzle. Be thorough with each witness and you will not need to fear missing pieces when your discovery is concluded.
Also, just as in any case, don’t be afraid to lead adverse witnesses as allowed by Evidence Code section 776. Leading questions are the best way to focus an adverse witness, especially one that might be inclined to waste your time with irrelevant insurance technicalities and side issues.
There’s no magic to conducting bad faith discovery. Just preparation, study and hard work.
While the basics outlined in this article should help you get going, don’t forget that there is a strong community of insurance bad faith practitioners available who can help answer particular questions or give guidance on technical issues.
In my mind, there is no nobler endeavor than fighting for deserving individuals who have been legitimately wronged by powerful institutions. Hopefully, you are of the same mind. So, go get ‘em!
A. Why won’t they just “do the right thing?”
People make mistakes. It’s part of being human.
Even so, over and over we see cases where an insurance carrier or its designated agent makes an error and then stubbornly denies responsibility. The carriers/agents just won’t “do the right thing” in industry parlance.
The result is always the same. Innocent insureds are left to fend for themselves. The carrier and agents defend based on the notion that they owe “no duty” to have prevented or to right the particular wrong. A struggle ensues.
Bad faith law may be insufficient to address the situation, especially if the mistake has to do with a faulty insurance application or a failure to provide adequate limits or coverages. Breach of the implied covenant of good faith and fair dealing generally requires a breach of the insurance contract and the policy declarations or coverages are often exactly what the agents/carrier mistakenly put into place.
Catch 22, anyone?
The solution is to think outside of the box just a little bit and examine what is really going on in the insured/agent/insurer relationship, because the nature and extent of the relationship will ultimately define where the duty truly lies. Fortunately, this area is one of the few in insurance law that has grown more sympathetic to insureds during the past decade.
B. Defining Different Levels of Duty.
The typical agent/carrier mistake problem requires analyzing duty at multiple levels. The duties can involve a fiduciary duty under certain circumstances, a duty to perform reasonably or a duty created by an oral or written contract.
The duties themselves will define the remedies available to the insured in the event of a breach so the level of duty involved becomes critical in prosecuting a claim.
Breach of fiduciary duty is the most interesting, both because it has recently been affirmed as available under certain circumstances (Tran v. Farmers Group, Inc. (2002) 104 Cal.App.4th 1202, 128 Cal.Rptr.2d 728) and because it presents a potential for obtaining punitive damages.
Negligent breach of a duty to perform resulting in damages is also important, but will generally only become available where the agent or insurer have acted in such a fashion where they can be seen to have adopted a special duty towards the insured. See e.g., Paper Savers, Inc. v. Nacsa (1996) 51 Cal.App.4th 1090, 59 Cal.Rptr.2d 547; Desai v. Farmers Ins. Exchange (1996) 47 Cal.App.4th 1110, 55 Cal.Rptr.2d 276; Free v. Republic Ins. Co. (1992) 8 Cal.App.4th 1726, 11 Cal.Rptr.2d 296. Under this theory, both agent and insurer may be liable for the agent’s negligence in misrepresenting policy terms or the extent of coverage provided. In addition, the measure of available damages may, in the right case, include attorneys fees and costs. Saunders v. Cariss (1990) 224 Cal.App.3d 905, 274 Cal.Rptr. 186.
Finally, where there is an oral or written agreement to provide a certain level of insurance protection, there is the potential for a breach of contract to provide insurance. The damages available would be the same as for any contractual breach.
Read more on this topic on my website, including:
C. The Fiduciary Duty as applied to a Carrier. A significant duty in the proper case.
D. Finding a Duty of Care.
E. Finding a Contractual Duty.
Insureds sometimes need to rely on the expertise of agents and carriers to obtain the correct coverages and limits that will best protect them. When agents and carriers act as insurance experts but drop the ball, they should do the right thing. When they won’t, it’s up to the consumer lawyer to set things right.
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.
Our founding fathers believed that our single best protection against tyranny is freedom of speech. That’s why freedom of the press is in the First Amendment, up there with freedom of religion and the right to petition the government when we’ve been wronged. So, when I was reading a letter to the editor of the L.A. Times from a Time Warner executive explaining how the secret settlement in former HBO chieftain Chris Albrect’s 1991 sexual harrasment case was “managed appropriately,” I thought, ah-ha! Here’s something that is threatening Justice for all of us.
According to the press reports, prior to being arrested in Las Vegas for allegedly assaulting a woman identified as his girlfriend, Albrecht had been the target of sexual harassment allegations by a female co-worker at HBO. A lawsuit was filed and then, secretly settled in the $400-500,000 range. Albrecht kept moving up at Time Warner, no word on the female co-worker and everything was nice and hush-hush until something didn’t stay in Vegas.
The point isn’t that Albrecht and HBO did anything wrong in 1991. But the Albrecht episode is an excellent example of how secret settlements distort America’s view of civil justice.
It’s so common that defendants demand secrecy when they settle civil claims for things like personal injury, insurance bad faith or product liability, that I’ve had numerous cases where the defense lawyers tried to slip in a “confidentiality clause” into a settlement agreement even though it wasn’t part of the deal. They usually try to insist on secrecy by arguing, “Well, that’s the way we always do it.” I always fight them on it, because, well, I believe that freedom of speech equals liberty and justice. Lot’s of people don’t fight, they just sign. The result is, there is a lot of mischief and evil conduct that gets hidden away behind a door marked “confidential settlement.”
Anyhow, think about secret settlements the next time you see an advertisement attacking civil justice. Don’t you think it’s worth asking, “What would the story be if I had all the facts, not just the ones big business wanted me to know about?” Oh, and you should start paying attention to who is paying for those ads and wondering why they think it’s worth spending all that cash.
It’s your freedom, after all. Benjamin Franklin would want you to hold on to it.
There is an assault on our freedoms that takes place every day and it’s time to stand up and tell the truth about it. I’m talking about the assault on our seventh amendment right to a civil jury trial under the United States Constitution and such guarantees as Article 1, section 16 of the California Constitution.
I am a California trial lawyer who started out life in journalism, spent some time working for the insurance industry and now devote my life to helping people who have been harmed by large institutions find justice in our courts. It’s a tough job, made even tougher by the disinformation that spews every day from paid commercial ads by big business, biased news reporting and public voices with either an axe to grind or not enough information to make an informed opinion.
Fighting for people in the courts isn’t enough these days. The truth needs to be proclaimed on the street corners and shouted from the rooftops. At stake is nothing less than our future as a free people. Don’t believe it? Then ask yourself, when the rich guy down the street can destroy your property and injure your family and you have nowhere to seek justice, will you truly be free?
Justice for all of Us.
Now that my oldest child is out in the working world beyond my protection, I worry even more about what might happen if he suffers a hard life blow such as a serious accident. Also, thinking like I do, I wonder what my remedies are if someone, through carelessness or intent, causes bodily harm to this young man I love.
It’s interesting to me that the Bible has strong rules about personal injury that we as a society really don’t look to as a standard. Take Chapter 21, verse 12 of the Book of Exodus, which proclaims: “Whoever strikes a man a mortal blow must be put to death.” Simple and straightforward, don’t you think? The penalty is fixed no matter if the killing resulted from an accident, some simple negligence or with malice aforethought. Harsh, huh?
So, I got to thinking about how California measures up to that old Biblical standard. Seems there should be some clamor to tighten our standards, seeing as how there is a fair amount of the population who still haven’t forgiven Charles Darwin for drawing conclusions about how evolution works.
Actually, though, as a society, we go completely the other way from the Bible’s strong message about the value of human life.
Oh sure, murder, is still punished criminally, or at least it’s supposed to. On the other hand, our civil justice system often seems value human life at less than the cost of a luxury sedan or a new Ferrari. How can that be?
Take my son, for example. If he is killed on the job as the result of a workplace injury, his life is worth a $5,000 burial expense and that’s pretty much it, since he has no dependents. If a doctor kills him through malpractice, then the cap is $250,000 plus whatever expenses he might have incurred in dying, such as medical bills, etc.
A jury of his peers, on the other hand, might value his life as high as the 9/11 panels did in New York where the families of terror victims were compensated by the government for their loss. Those values always fell in the multi-millions. That was the Bush administration too, not a bunch of wild-eyed liberals. The problem is, as a society, we are letting juries decide these questions less and less, because we don’t trust common people to make decisions about value. I don’t know about you, but I’d rather trust my neighbors to decide how much my son’s life is worth than some single stranger who doesn’t know me, my life or my community. Yet, that is the way we’re drifting, my friends.
At the end of the day, there is no way to equate money with loss of human life. Maybe that’s why the old testament is so rigid in it’s approach.
Still, if we are trying to give justice to families who have lost a loved one because of someone else’s negligence and the only remedy we have is to award money damages, don’t you think justice demands that the value be fair?
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.