How Litigation Lending Affects You

Over the years companies have been created that specialize in lending money at extremely high, even unconscionably high, interest rates to people who are involved in personal injury or wrongful lawsuits and people who are awaiting the payment of money from the settlement of lawsuits. There are also companies who lend money to lawyers who need to borrow in order to fund high-cost litigation and there are companies that exist to buy structured settlements (annuity contracts) from people who have settled their claim in exchange for the payment of money which is to be paid out to them over a period of time.


Each of these business schemes can have a legitimate purpose. On the other hand, all of them can be misused and predatory.


First, the lending of money to people who have a potential claim or who are awaiting a settlement and need money now. It is obvious that a person who is seriously injured may not be able to work and may not be able to pay for needed medical care. Those who find themselves in that predicament are often desperate. A loan in these circumstances may be justifiable, but there are lenders who use the borrower’s desperation to their advantage. If you are in this situation, NEVER agree to a loan without first consulting your lawyer. Many of the companies making these loans charge exorbitant interest. Furthermore, many of these companies demand that your lawyer obligate himself to keep the company informed and to cooperate with them during the litigation and thereafter to protect their loan. Don’t allow dire need force you into a bad decision you will regret.


The second type of loan, loans to lawyers, is a transaction between a lawyer and a lender intended to enable a lawyer to fund the cost of litigation. In some situations, loans of this type are essential. In today’s world of complex litigation the costs can be enormous. This is especially true in class action cases, mass tort cases, and cases that are dependent upon evidence that can be obtained only from multiple expensive expert witnesses and cases that can be expected to go on for years. Many lawyers simply cannot finance these cases out of their own pockets. However, the cost of borrowing the litigation expenses is usually passed on to the client if the case is successful. Consequently, you should ask your lawyer at the very beginning whether he or she will be borrowing money to finance your case and, if so, whether you will be paying the interest on the loan.


Loans for litigation expenses can be misused and abused. I am aware of a well known firm in Houston that created its own loan company that exists solely for the purpose of loaning money to the firm in all of its cases. This is how this scheme works: Every time the firm incurs an expense of any kind in any amount, it is booked as a loan between the firm and the lending company created by the firm. At the end of the case, the firm passes the expenses and the interest on the “loan(s)” to the client. The result to the client is that the firm is being paid interest on all its expenses, even those expenses which most lawyers would consider to be routine firm overhead.


 Image is property of J.D. Wentworth

Image is property of J.D. Wentworth

The last type of financial transaction affecting litigation is the most predatory of all. This is the one wherein a company buys structured settlements from people who have already settled their cases. Let’s say that you have a serious injury and you file a lawsuit. The defendant you have sued later offers to settle with you by means of a “structured settlement”. This means that the defendant offers to buy you an annuity contract from an insurance company that will pay you specified amounts over a period of time. Structured settlements can be very advantageous because they have tax advantages and because their internal rate of return is often higher than you can achieve for yourself by investing the settlement money. The drawback is that you can’t get your hands on future payments until they are due. Structured settlements are often used to protect minors and young adults from the consequences of impetuous financial decisions. The next step is that companies such as J.D. Wentworth advertise their willingness to buy your structured settlement for cash paid now. What they don’t tell you is that they will pay you a steeply discounted price that may be pennies on the dollar. If you agree to the deal, they pay you cash, you sell to them your structured settlement (annuity contract), and they get paid all you would have received had you waited to be paid. I should add here that the difference between what they pay you and what they get is their profit and that it is enough to make them laugh all the way to the bank.

Never agree to sell a structured settlement without getting advice from your own lawyer. Your temporary needs, no matter how urgent and important they may seem, can almost always be met in some way far less drastic than virtually giving away your structured settlement.

Photo Credit: Pete Linforth

The Senate Judicial Confirmation Hearing

After a raucous beginning, Judge Brett M. Kavanaugh, President Trump’s nominee to the United States Supreme court, got his chance to speak:

“A judge must be independent and must interpret the law, not make the law. A judge must interpret statutes as written. A judge must interpret the Constitution as written, informed by history and tradition and precedent.”

He went on to say he would be “a neutral and impartial arbiter who favors no litigant or policy,” and that a judge “must be independent, not swayed by public pressure.”


You may rest assured that these simplistic, noncontroversial, aspirational words were honed by professional speech writers and that they have been tested through the years on focus groups. My impression was that Kavanaugh was giving a performance that he has been preparing for his entire life. He has been groomed for this moment by the conservative Federalist Society and there is not the slightest chance he will make a mistake. The same could be said of Justice Neil Gorsuch, who was confirmed before him. You are seeing the Republican/ Libertarian/ Conservative master plan for the judiciary unfold and it will have far reaching and long lasting consequences. I almost wish the Senate Judiciary Committee would spare us the sham hearing. They already know what is going to happen and so do we. As someone on television said recently, “losing elections has consequences,” and we are witnessing those consequences.


It is painful to watch politicians attempt to cross examine Kavanaugh. When they ask about his position on legal issues, he easily evades or bats away their questions by simply saying he can’t and shouldn’t answer hypothetical questions and/ or that it is improper for him to make a comment or commitment about a pending case or an issue that may come before the Court. By the time you eliminate all the important questions he says he can’t, shouldn’t or won’t answer, there isn’t much left to talk about. The politicians are way out of their depth and I suppose they know it. Maybe that is why they resort to reading prepared statements.


What would be interesting and insightful is for legal scholars to ask the questions, but I’m sure that isn’t allowed and, in any event, the politicians don’t want to surrender the limelight.


Since we know that Kavanaugh will be confirmed and that the Court will become even more predictably conservative, it is reasonable to presume the Court will rule to the right on all the hot-button social issues such as abortion, gun rights, voting rights, discrimination, speech, religion, etc., and that the Court will continue to favor big business over individuals.


Ironically, Trump’s populist base of support (presumably ordinary working class people) will probably be harmed by most of this Court’s rulings, which won’t be about social issues, but they don’t seem to know that. Perhaps this is due to their laser focus on the social issues that generate headlines or maybe it is because it is not immediately apparent to them how the meat and potatoes cases affect them.


For a very good analysis of the proper role of the Supreme Court, read the essay of David A. Kaplan, “What’s the Point of the Supreme Court?” in the New York Times of September 5, 2018.


For more about the Federalist Society and the role it now plays in shaping the judiciary, read the book “Ideas with Consequences: The Federalist Society and the Conservative Counterrevolution, by Amanda Hollis-Brusky, or Ms. Hollis-Brusky’s 6/28/18 interview on NPR, and the book “Dark Money”, by Jane Mayer.


One last point. Kavanaugh is only 53 and has been a judge for 12 years. He attended Georgetown Preparatory School, then Yale University. He remained at Yale to attend Yale Law School. His legal practice was with the firm of Kirkland & Ellis, one of the largest, “white-shoe” law firms in the world. He has also served as a law clerk for federal judges, worked as White House Staff Secretary in the Bush Administration, and worked for Ken Starr during the Clinton investigation. This elitist pedigree has become somewhat of a template for serving in the federal judiciary. Wouldn’t it be nice to see someone appointed who attended public schools and state universities, represented individuals as a lawyer over many years, and had “paid his dues”?

Photo by: Alex Brandon/Associated Press

The Tragic State of Healthcare in Texas

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Chris Tomlinson, the excellent business writer for the Houston Chronicle, wrote an interesting commentary on August 8, 2018 concerning the overuse of hospital emergency rooms to treat patients presenting with nonemergency medical needs. According to Tomlinson, who cites the New England Health Institute, unnecessary ER visits cost Americans more than $38 billion a year. In Texas, there are 49 ER visits per 100 people. In 1992, the national average was 35 visits per 100, so the trend is not good.


Tomlinson’s point, and it’s a good one, is that ER care is by far the most expensive care a patient can receive and, in the end, we all pay for this care in the form of higher insurance rates and taxes. There is also the hidden cost of people with easily treatable chronic conditions being treated only when their symptoms finally become bad enough to go to the ER, and then it is often too late.  


Tomlinson is criticizing people for over utilizing ER care, but I believe the problem is far more complex than people simply making a bad decision to go to the ER for their smallest medical problems. After all, who in their right mind would willingly go to an ER to sit in line, maybe for hours, and be treated by a doctor they don’t know, if they had options?


How did we get to this point? Here are a few factors to consider.


Sam Houston State University is attempting to create a medical school intended to educate primary care doctors who will practice in underserved areas of Texas, particularly rural areas. Texas is 46th nationally in the ratio of doctors to patients. There are many, many Texas counties with no doctors and many more with only one or two doctors. Small, rural hospitals are a thing of the past. While it is doubtful that Sam Houston State University will get a medical school, there is no doubt that Texans need much better access to routine medical care.


Texas has chosen not to avail itself of the opportunity to expand Medicaid even though the federal government will pay most of the cost and even though every major healthcare group in Texas begged the legislature to do this. This was purely a political choice aimed at undermining the Affordable Care Act. The result is a much larger population of patients with no insurance and no ability to pay.


Texas has one of the highest rates of uninsured citizens in the country. While Texas does have low unemployment, fewer and fewer jobs come with health insurance.


I can’t recall calling a doctor’s office in the last 10 years without being told by an automated message to go to the ER if I have a medical problem that needs immediate attention and it is not within that doctor’s normal business hours. If you call in normal hours, it may be weeks before you can see a doctor. If you are a new patient, you may not be seen at all. It is reasonable to assume a fair number of people do go to the ER and that the public has become educated to the fact doctors don’t usually treat acute medical problems in their offices.


It is unquestionably true that most doctors don’t want to see uninsured patients, Medicaid patients, or CHIPS patients and some don’t want to see Medicare patients.


There is the problem of the Republican party’s unending attempts to repeal and/ or systematically destroy the Affordable Care Act without a viable replacement. President Trump has made no secret that he intends to do everything within his power to make the Affordable Care Act fail. When people can’t get insurance coverage, they go to the ER because they can’t be turned away.


Back in the late 1990s and early 2000s, Republican political strategists, insurance companies, drug companies and lobbyists working for healthcare groups believed the time was ripe to advance a national agenda of “tort reform” in the area of healthcare. They were unable to achieve their goal on a national level, but they were successful in Texas because George Bush was Governor and the Legislature was controlled by Republicans. Because this plan involved amending the Texas Constitution, all that remained to be done was to convince the voting public. Access to healthcare was one of the primary selling points. It was said then that Texas, particularly rural Texas and poor Texans, did not have adequate access to care. The argument they made was that medical malpractice laws had to be changed in order to attract doctors to Texas and to keep our doctors from “fleeing the state”. They also said the law had to change to keep open the doors of our hospitals, particularly rural hospitals. On a close vote, the constitutional amendment passed and sweeping changes in healthcare liability law were made by the Legislature.


What happened next? Did changing the law make care more accessible and affordable? Of course not. Patients traded their legal rights for nothing. Rural areas are still underserved. We still have a serious shortage of doctors. The cost of medical care and medical insurance is higher than ever and unaffordable to a high percentage of Texans.


The crime of the situation is that cynical politicians, special interest groups, lobbyists  and political strategists all knew the truth and made a conscious decision not to tell it.


The fact of the matter is that doctors choose to practice where they do based on money, quality of life, and easy access to first class hospitals and other specialized medical providers. It is also true that hospitals, out of economic necessity, must be where the patients are. All of this adds up to the urban areas having more and the rural areas having less or none at all.


The inevitable result of all these problems is that many patients go to the ER because they don’t have a viable alternative. The financial and political evolution of the healthcare system has pushed them in the door of the ER. As everyone without a political or financial agenda will tell you, it would be far cheaper to fix the problem of access to primary care than to continue to pay for the truly broken system we have. Doing nothing is expensive. 


For so long as a sizable share of the voting public believes access to basic healthcare is a privilege rather than a right, this problem will get worse.

 Updated Articles for Sam Houston:

Photo Credit: Paul Brennan 

Bad Judicial Conduct

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If you are following the prosecution of Paul Manafort in federal court, you will have noticed that the federal trial judge, T.S. Ellis III, has routinely inserted himself into the proceedings by his many criticisms, comments, threats and tantrums. The judge’s conduct, of which he seems proud, has been such that the New York Times believed it deserved a front page story on August 9, 2018.


The conduct of another federal judge, Richard Leon, who heard the government’s case against the AT&T acquisition of Time Warner, also justified an article in The Wall Street Journal.


In both instances, the judges berated the lawyers, threatened the lawyers and made comments that could lead to legitimate questions regarding their impartiality.


Are there limits on the conduct of trial judges?


The answer is “yes”, but they are fairly vague. For example, the Texas Code of Judicial Conduct says “A judge shall be patient, dignified and courteous to litigants, jurors, witnesses, lawyers and others…”


What that means to one person may not mean the same thing to another. It is also true that judges should perform their duties without bias and prejudice and should not manifest their bias and prejudice by words or conduct. But, again, it is often hard to capture on the official written record of a trial the attitude of the trial judge.


Can the conduct, demeanor and attitude of a trial judge affect the outcome of a trial? Definitely. Jurors are not stupid. They watch every move, look for cues and listen to every word. They assume the trial judge knows the law better than anyone else in the courtroom and that he or she knows who should win. A trial judge can make or break a case not just by their rulings, but also by their words and attitude. If a trial judge is hostile to a litigant or a lawyer, it is likely that a jury will pick up on that attitude and may adopt it as their own.


Most of the time bad judicial behavior is not punished. This is more true in the federal system than in the state system. As Judge Ellis said it himself, “I am a Caesar in my own Rome.”


Photo by: Succo

Feeding the Hungry

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Today is the Brazos Valley Food Bank’s annual Feast of Caring. I hope it is a big success and encourage everyone to attend and give. If you cannot go, please make a contribution when you next consider your charitable giving for 2018. In a community such as ours that appears to be so prosperous, you wouldn’t think that food insecurity is a big problem, but looks are deceiving. The food Bank serves thousands of people in the Brazos Valley and is a very good steward of all that it receives.


There were 44, 640 food insecure people in Brazos County, a rate of about 21.3 percent, in 2016.


The need is particularly high in the summer months because children who are provided food at school are at home.


Please be generous.

Bias Against Muslims as a Factor in Litigation

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Since 9/11, there has been an awareness among lawyers of an anti-Muslim bias and prejudice that potentially affects the fairness of trials. We are now learning this goes beyond Muslims and extends to Arabs. According to a 2015 Gallup poll, 43% of all Americans admit to holding prejudice against Muslims and 39% express an unfavorable view of Arabs. Another survey states that 47% believe Islam and American values are in conflict. There is some research to the effect that prejudice against Arab Americans is greater than that held against Hispanic Americans, Asian Americans or African Americans. Considering the deluge of overheated political discourse of today about immigration and terrorism, I suspect the degree of bias is greater today than ever before and growing. It is also significant that these numbers reflect explicit bias and prejudice that is self-reported. Most people are reluctant to admit publically that they harbor bias or prejudice and studies prove that many people are unaware that they are biased and prejudiced.


Our judicial system cannot function properly if race, religion, ethnicity, social status, or nationality play an unspoken role in the decision making process. Nevertheless, one would have to be very naive to believe that these issues don't affect the quality of justice in cases involving litigants and witnesses who are Muslin, Arabs, or for that matter any minority.


What can be done short of the unrealistic goal of changing hearts and minds on a wholesale basis?


Insofar as I can see, there is nothing that can be done other than for judges and lawyers to address this issue head-on during jury selection. By this I mean that lawyers need to thoroughly examine potential jurors regarding anti-Muslim, anti-Arab bias, and trial judges need to allow lawyers plenty of time and latitude in doing so. Due to the fact that people don=t want to publically admit racial, ethnic or religious bias, some of this questioning may have to be done in a private conference between the judge, the lawyers and the potential juror at the bench.  Instructions from a judge to jurors to not let bias and prejudice affect their verdict are worthless. As the old saying goes, telling jurors to disregard something is like throwing a skunk in the jury box and telling them not to smell it. It just won’t and can’t work.

Photo Credit: Ross Caines

The Mystery of Low Wages

For many years and particularly since the Republican tax cuts, there has been a problem that economists and the Federal Reserve Bank can't seem to explain or solve: stagnant or falling wages.


Job growth has been robust for years and it was promised that tax cuts would enable corporations to pay higher wages.


According to what economists call the "Phillips curve", low unemployment should accelerate pay growth, but it just hasn't happened and no one can explain why. It is almost as if the law of supply and demand has been suspended.


Some economists attribute the problem to the fact that union membership is at an all-time low.


Some economists point to the fact that corporations used their tax cut to buy back their own shares, which helps stockholders (1/3 of which are foreigners) and executive level employees who own stock or stock options, rather than pay higher wages to ordinary employees.


Some economists blame technology and automation.


But, as said by the chairman of the Fed in an understatement, "'s a bit of a puzzle."


Maybe there is another reason that is at least somewhat to blame.


Attorneys general in 10 states are investigating whether clauses in fast food franchise agreements are preventing workers from switching jobs and thereby locking them into low-paying positions. These agreements, called "no-poach clauses", prohibit franchisees from hiring employees away from a fellow franchisee of the same brand.


Fast-food restaurants employ 4.5 million people and have generated more jobs than nearly any other sector since the 2008 recession. These agreements also exist in other industries.


Obviously, these no-poach agreements help business owners by maintaining low wages and reducing employee turnover, but they do so by harming the lowest paid and most vulnerable employees in our economy.


Let us hope that this type of collusion to manipulate the job market is put to an end


Photo Credit: Jerry Nettik 


The Appointment

President Trump has appointed Judge Brett M. Kavanaugh to the United States Supreme Court. This was immediately followed by the usual coded double talk from politicians and political pundits on the right who said in various ways that Kavanaugh was not an “activist judge”. For example, Trump promised a Justice “who will faithfully interpret the Constitution as written”. The Wall Street Journal said Kavanaugh’s record “suggests he will help to restore the Supreme Court to its proper, more modest role in American politics and society” and that “Kavanaugh is among a younger generation of judges who base their ruling on the text of the Constitution and Congressional statute.” You can expect to hear more and more of this kind of talk in the months leading up to the phony, staged, perfunctory confirmation hearing. All of it is intended to convey to those who are not versed in the law the simplistic and false idea that the Constitution and the laws of this country are clear, unambiguous and easy to apply to any fact situation that may arise now or in the future.


Most people would agree that Thomas Jefferson knew a thing or two about the Declaration of Independence, the Constitution and political theory. After his presidency, Jefferson kept up a lively correspondence with many notable thinkers of his era about all of the political issues of his day. Here is what Jefferson wrote to Samuel Kercheval on 7/12/1816: “Some men look at constitutions with sanctimonious reverence, and deem them, like the ark of the covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment. I knew that age well; I belonged to it, and labored with it. It deserved well of its country. It was very like the present; but without the experience of the present: and 40 years of experience in government is worth a century of book-reading; and this they would say themselves, were they to rise from the dead. I am certainly not an advocate for frequent and untried changes in laws and constitutions. I think moderate imperfections had better be borne with; because, when once known, we accommodate ourselves to them, and find practical means of correcting their ill effects. But I know also that laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times. We might as well require man to wear still the coat which fitted him when a boy, as civilized society to remain ever under the regimen of their barbarous ancestors.”


In other words, the law is not immutable and must change to fit the times and the needs of society.


The truth of the matter is that Republicans are counting on Kavanaugh to be an “activist judge”. If he is not, it will be a big disappointment to Republicans. His job, from their perspective, is to:


  1. be a reliable vote for the conservative point of view on social issues such as abortion; guns; religion; gender and racial discrimination, etc.;
  2. bless the Republican political strategy of voter suppression through gerrymander, voter ID laws, purging of voter rolls, etc., and continue the ability of candidates to benefit from unlimited supplies of “dark money”;
  3. expand the rights of corporations and favor corporations over individuals in all forms of litigations;
  4. hold the ACA (Obamacare) to be unconstitutional; and,
  5. protect Donald Trump if, as and when necessary.


It is reasonable to believe Kavanaugh has already been tested on all these issues in private before his appointment was announced.


Phot Credit: Wynn Pointaux

You Had to Know It Was Coming

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You may recall the recent United States Supreme ruling in the case of a baker who refused to bake a wedding cake for a gay couple.  The Court actually evaded a direct ruling on the question of whether a religious conviction could justify refusal of goods and services by holding, in essence, that the baker did not get a fair hearing before the Colorado Civil Rights Commission. Nevertheless, the Supreme Court’s decision was widely reported as having been for the baker and it was seen as permission to deny goods and services on the basis of religious beliefs.


After the Supreme Court’s decision, a Walgreens’ pharmacist in Arizona refused to give a woman a drug prescribed by her doctor. The drug, Misoprostol, can be used to end a failed pregnancy in the first ten weeks. In this lady’s situation, it was being used by her doctor because there was no fetal heartbeat and the pregnancy would end in a miscarriage. When the lady went to Walgreens with her 7 year old to pick up her prescription, the pharmacist asked if she was pregnant. When she responded affirmatively, the pharmacist refused to give her the prescription because of “his ethical beliefs.”


Walgreens later apologized to the lady. But, Walgreens said, “To respect the sincerely held beliefs of our pharmacist while at the same time meeting the needs of our patients, our policy allows pharmacists to step away from filling a prescription for which they have a moral objection.”


I’m not at all certain what message the United States Supreme Court intended to send in the wedding cake case, but I’m pretty sure it was not that you and your doctor have to consult with a pharmacist’s conscience in order to receive a legal drug lawfully prescribed by your doctor.


The unfortunate, but predictable, consequences of the wedding cake case is that religion will be used to justify personal prejudice until the Supreme Court defines the limits of permissible conduct.


Photo credit: PublicDomainPictures    

It's Only 52 Million People - What's the Big Deal?

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The State of Texas, led by Republican Attorney General Ken Paxton, has filed a federal lawsuit along with 20 other Republican Attorneys General seeking a judicial declaration that the Affordable Care Act (ACA) is unconstitutional.


Under normal circumstances the Justice Department would assume its legal responsibility to defend the constitutionality of a law passed by Congress. However, nothing is normal anymore. Donald Trump and Republicans in Congress have tried almost everything possible to repeal or circumvent the law. The key word here is “almost”. The newest backdoor tactic is that Donald Trump has told Jeff Sessions, his Attorney General, to take a dive and not defend the lawsuit. This maneuver signals to the courts that the Trump Administration believes the law is unconstitutional and, theoretically, makes it easier for the suit to succeed. There is no doubt that this is a legal strategy coordinated among the Republican Attorneys General and the Trump Administration.


Why should you care? The ACA requires insurance companies to cover those with pre-existing conditions at no additional cost to the insured. According to a Kaiser Foundation analysis in 2016, 52 million adults under the age of 65 have pre-existing conditions that will make it extremely difficult or impossible for them to get health insurance coverage. This doesn’t include children. This is a disaster in the making by any standard.


After Sessions declared that the Trump Administration would not defend the lawsuit, the possibility the suit might be successful became obvious and there was an unexpectedly loud public outcry. Even 59% of Republicans want rules that prohibit insurance companies from denying coverage based on pre-existing medical conditions. Predictably, Senator Ted Cruz of Texas agrees with the lawsuit despite the backlash because it realizes his cherished goal of destroying, albeit judicially rather than legislatively, the ACA. Senator John Cornyn of Texas and many other Republicans said it was not their intent to leave people with pre-existing conditions without coverage, even though they have tried repeatedly over the years to repeal the ACA.

If we are to be judged by what we do rather than what we say, it is time for Congress to act rather than talk about guaranteeing coverage for pre-existing medical conditions.


For more on this topic, see the column by Paul Krugman in the New York Times of 6/14/2018.


Photo Credit: Myriam

Democracy Takes Another Hit

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On 6/11/18 the United States Supreme Court ruled in a 5 to 4 vote that Ohio can purge a registered voter from the voter rolls if the voter has not voted and does not respond to a notice. Ohio begins the purging process based on the failure to vote in a single federal election cycle. Just think for a moment about how extreme that is. The purging of voter rolls goes hand in hand with other efforts to suppress the vote such as cutbacks on early voting, elimination of same-day registration and voter identification laws. All of these measures have been advocated only by Republicans and passed only by state legislatures controlled by Republicans. It goes without saying that this decision will encourage other states dominated by Republicans to follow Ohio’s lead and enact a similar law.


According to the New York Times, a Reuters study in 2016 found that at least 144,000 people were removed from the voting rolls in Ohio’s 3 largest counties (Cleveland, Cincinnati, and Columbus) and  that voters were struck from the rolls in Democratic-leaning neighborhoods at roughly twice the rate as in Republican neighborhoods.


These voter suppression laws, coupled with partisan gerrymandering, make it very difficult to defeat sitting politicians. It is not a surprise that politicians will say and do anything to stay in office, but it is very discouraging when the United States Supreme Court condones these political tactics.


In dissent, Justice Stephen G. Breyer, quoting a Senate report, said, “The purpose of our election process is not to test the fortitude and determination of the voter, but to discern the will of the majority.” That sounds way too naïve for our times.


We should be doing everything we possibly can to make sure people do vote rather than suppressing the vote. For example, Australia has a law that makes voting mandatory and they make it easy to vote. One of the easiest things we could do is to change election day to a Saturday. Just imagine how many people don’t vote because they work from 8:00 a.m. to 5:00 p.m. Monday through Friday, have busy family lives, and many other weekday obligations. It seems we’re headed in the wrong direction with the wrong motives if the goal is democracy.  

Photo Credit: Lisa Johnson

Take Me Out to the Ballgame

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I recently watched a segment of Bryant Gumbel’s Real Sports on HBO that had to do with injuries caused by foul balls in major league ballparks. The program featured the stories of many victims who had sustained gruesome injuries and it also documented the failure of Major League Baseball to protect its fans.


On March 29, 2018, the week following the HBO program, The New York Times ran a lengthy story on the same issue. According to HBO and The New York Times, a study in 2014 found that 1750 fans per year are injured by flying objects (batted or thrown balls and broken bats) in major league games. Many of those injuries were to the face and head. A layperson would probably assume that the injured fans are compensated by the teams or by Major League Baseball. That is most definitely not the case. Almost all lawsuits against baseball teams and Major League Baseball have been dismissed based upon legal precedent established 105 years ago in a Missouri case. In that case the court ruled that because the victim had chosen a seat in an unprotected section, he had “assumed the ordinary risks of such position.” This legal doctrine is called “assumption of the risk.”


Since 1913, there has been a disclaimer on the back of every ticket to every Major League Baseball game that says:  “The holder assumes all risk and danger inherent to the game of baseball, whether occurring prior to, during or subsequent to, the actual playing of the game, including specifically (but not exclusively) the danger of being injured by thrown bats, fragments thereof, and thrown or batted balls, and agrees that the (Name Of Club) are not liable for injuries resulting from such injuries.” This disclaimer and the court cases upholding it as a defense to liability has been dubbed the “baseball rule.”


A man named Andy Zlotnick was seriously injured in Yankee Stadium in 2011. A foul ball hit him in the face crushing his left eye socket, fracturing his jaw and permanently impairing his vision. He made a claim, but was met by the “baseball rule.” He lost. However, Zlotnick wouldn’t stop legally (he appealed and lost again) or in the court of public opinion. Zlotnick’s plea for more fan protection was gaining attention, but not really getting action, until a 2 year old child was hit in the head at Yankee Stadium. She suffered a broken nose, an orbital fracture and bleeding on the brain. Injuring a 2 year old on national television was finally enough to get the attention of Major League Baseball. The Commissioner recommended extending the netting in ballparks to the near end of each dugout. This is being done and is helpful, but the length and height of the netting is still woefully inadequate.


In case you are thinking you will be able to dodge a batted ball, HBO ran an experiment by throwing balls from a pitching machine at people who were seated behind a clear plastic shield. The balls were thrown at 95mph. Even though they were expecting the ball, not a single person reacted in time to protect themselves. Some batted balls are travelling up to 130mph and most fans are not paying close attention to every pitch. Fans in real life have almost no chance of protecting themselves from a hard hit foul ball.


From Major League Baseball on down, the people who know baseball and run the leagues know that a batted ball can kill or maim a spectator, and that the spectators do not fully appreciate the full extent of the danger. The fact that the law has not heretofore imposed liability should not be a license to violate common sense safety rules.


Photo credit: Free Photos

The Cake Case - What Does It Mean?

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The U.S. Supreme Court finally issued its opinion in the famous case of the commercial baker in Colorado who refused to bake a wedding cake for a gay couple.


The decision was 7-2 in favor of the baker. Religious conservatives are hailing it as a victory for freedom of religion, freedom of religious expression and freedom of speech. Those in the LGBT community and others are worried that the decision is an invitation to discriminate based upon claims of religious belief. The Supreme Court’s decision doesn’t support either position.


The decision turns on very narrow grounds and the specific facts of this case. The decision tries to avoid the broader issues that captivated the public’s attention.


In Colorado there is a law that prevents discrimination based on sexual orientation. When the baker refused to bake the cake, the gay couple filed a complaint with the Colorado Civil Rights Commission. The Commission ruled for the gay couple. This decision was appealed through the judicial system until it reached the U.S. Supreme Court.


The U.S. Supreme Court ignored, I am sure intentionally, the most provocative legal arguments. Instead, the majority seized upon comments made by one of the commissioners during the original hearing and found that they were “inappropriate” and “dismissive” and indicated unfairness. According to the opinion, “The neutral and respectful consideration to which Phillips was entitled was compromised here. The Civil Rights Commission’s treatment of his case has some elements of a clear and impermissible hostility toward the sincere religious beliefs that motivated his objection.”


The objectionable comments made by the commissioner were to the effect that “freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the Holocaust.” According to the opinion, these statements are some evidence of “hostility to religion”.


Whether those words indicate hostility to religion rather than hostility to discrimination is debatable. Nevertheless, it was those words that gave the U.S. Supreme Court an excuse to rule without tackling the more formidable issues that framed the public’s understanding of the case.


It is worth asking what the Court’s ruling would have been had the commissioner said nothing at the hearing and not given the Court an easy out.


There are other similar cases making their way to the Court which will provide an opportunity, if the Court wants an opportunity, to define the boundaries.

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A Solution Looking for a Problem

It now seems certain that the Environmental Protection Agency (EPA) intends to rollback fuel efficiency standards for cars and light trucks.


Fuel efficiency standards and how they are calculated is complicated, but suffice it to say that the rule in question required passenger cars to average 50 miles per gallon by 2025. This rule was established by the EPA during the Obama Administration and was intended to reduce the emission of greenhouse gases linked to climate change. i.e., global warming. The automakers opposed the rule at the time, but they have made steady technological progress toward achieving it, which helps consumers and the environment.


During his campaign Trump denied climate change and promised the EPA would rollback rules related to climate change. This he did regarding coal-fired power plants, one of the worst polluters, even though the plants were already fast disappearing due to market forces. Shortly after he took office, Trump met with automakers and promised them relief from the fuel efficiency standard. The new rule will freeze standards at the 2020 level.  According to Trump, this will save jobs in the auto industry. It is not at all clear how making less fuel efficient vehicles saves jobs.



When the rollback occurs there will be a monumental legal battle with California and the 12 states that use California's pollution standards. California has special status under the 1970 Clean Air Act. For those of us old enough to remember, in the 1960s and 1970s California was facing a crisis caused by air pollution (smog) related to exhaust emissions. California, in a political bargain, was given the right to adopt standards that were more stringent in order to address its air pollution problems. Therefore, for the last 50 years California has exercised its legal right to require automakers selling cars and trucks in California to meet its standards.  Because California is such a large and lucrative market, California's standards have become the de facto standard because automakers don't want to manufacture separate vehicles for different markets.


According to media reports, meetings and negotiations have taken place in an attempt to avoid the inevitable high stakes legal showdown that could have horrible repercussions for the automakers and the environment. Those negotiations failed. Why? It seems most likely true that it all boils down to politics and personal vendettas. Without getting into too much detail, suffice it to say that:


1.         Trump and a substantial number of his party tend to disbelieve climate science;

2.         Less fuel efficient cars and trucks burn more fossil fuel;

3.         Many of Trump's biggest corporate backers are fossil fuel companies;

4.         Scott Pruitt, Administrator of the EPA, is from Oklahoma, a true friend to the oil and gas industry, and an adamant "climate science denier";

5.         The EPA standard in question was created during the Obama Administration and Trump hates Obama;

6.         California leans heavily toward the Democratic Party;

7.         The Governor of California is Democrat Jerry Brown;

8.         Trump was trounced in California;

9.         Trump and Brown strongly dislike each other personally; and,

10.       Trump believes he has a 5 to 4 advantage in the U.S. Supreme Court.


In one of those "be careful what you wish for" situations, automakers are now speaking out in favor of more stringent standards. Bill Ford, Jr. , executive chairman of Ford Motor Company, said, "We support increasing car standards through 2025, and are not asking for a rollback." The automakers don't want to risk California winning the coming litigation and, like most businesses, they loathe uncertainty and want to make a deal.  Will this make any difference? Almost certainly not.


Photo Credit: Ralf Kunze

Buying Silence - A Dirty Business.

There have been an endless number of stories recently involving powerful and famous people, businesses and organizations who bought someone’s silence through a nondisclosure confidentiality agreement. An outside observer would have to conclude that there must be a marketplace for this kind of deal, but the parameters of that market are elusive.


I assume there are multiple factors which must play a role in determining the market value of silence such as consideration of just how dirty the secret is; the harm caused to the victim; the notoriety of the perpetrator and what that person has to lose if the victim speaks out; the financial ability of the perpetrator to pay; whether the perpetrator’s employer or business will also be financially harmed if the dirty secret comes out, etc. But, one factor you may not have considered is the cost of buying  off the victim’s lawyer.


On 4/5/18, The New York Times ran a story about the 6 publically known settlements involving Bill O’Reilly, formerly a star on the Fox Network. The settlement total was $45 million. One of the settlements involved a Ms. Mackris, a fellow employee at Fox, who sued O’Reilly for sexual harassment. The claim was settled for $9 million and a confidentiality agreement. The highly unusual terms of the settlement agreement have now been revealed in connection with new litigation.


The terms of the agreement include a provision that says the lawyers representing Ms. Mackris are agreeing to switch sides and advise O’Reilly on other sexual harassment claims. Ms. Mackris’ lawyers also agreed not to represent any other client who may have a claim against O’Reilly and Fox. This type of agreement is considered to be professionally unethical. Therefore, it is not surprising that Ms. Mackris’ lawyer was not immediately available for comment.


Greed is a powerful human weakness.


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The Lawyer-Client Privilege

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The investigation of President Trump’s lawyer  “fixer”, Michael Cohen, has brought to the public’s attention like never before the legal principle of protecting documents from disclosure that are subject to a claim of confidentiality based upon the attorney-client privilege.


What is the attorney-client privilege?


The Texas Rule of Evidence, which are modeled after the Federal Rules, state:


“A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made to facilitate the rendition of professional legal services to the client.”


The tentacles of the privilege extend to communications between the client’s representative and the client’s lawyer or the lawyer’s representative; the client’s lawyer and the lawyer’s representative; communications among lawyers in a pending action if the communications concern a matter of common interest in the pending litigation; between the client’s representatives or between the client and the client’s representatives; or, among lawyers and their representatives representing the same client.


In a criminal case, a client has a privilege to prevent a lawyer or a lawyer’s representative from disclosing any other fact that came to the knowledge of the lawyer or the lawyer’s representative by reason of the attorney-client relationship.


As you can see, the privilege is potentially broad and its application can be highly technical and difficult depending upon the circumstances.


There are exceptions to the privilege.


The most important exception is that communications are not privileged if the lawyer’s services were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud.


The attorney-client privilege is enormously important to the functioning of our legal system. Without it there would not be a free flow of truthful communication between lawyer and client. On the other hand, it can be and is abused. There are many instances wherein a client, usually a client that gets sued a lot, will dump a trove of harmful documents into the offices of its lawyers and then claim the documents can’t be disclosed because they are privileged.


The task of deciding which of the documents seized from Cohen are privileged and which are not is likely to be tedious and lengthy.


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When Jurors Don’t Get Along

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The New York Times ran an interesting article on 5/30/2018 regarding a hotly contested criminal trial in Federal District Court in New York. The trial involves charges against a former elected official who is accused of public corruption in a bribery and kickback scheme.


After 7 days of deliberations, one of the jurors failed to report for duty due to a claim of illness. As it turned out, the juror was not really ill, but refused to return because the deliberations had degenerated into cursing and name-calling.


The defense immediately asked for a mistrial.


The judge denied the mistrial because the jury had not said it had reached an impasse and seated an alternate juror. The judge then instructed the jury to disregard the entirety of its deliberations and to begin again from the start.


After 7 very difficult, rancorous days of deliberations, what do you think the chances are of the jury following the judge’s instructions to start over?

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May a Lawyer Disobey a Client?

The United States Supreme Court has granted a convicted killer a new trial based upon his lawyer's decision to disobey his client's clear instructions.


The facts are that Robert McCoy was charged with murdering 3 family members in Louisiana. The state was seeking the death penalty. McCoy told his lawyer that he was not guilty, i.e. innocent, and that he wanted to contest his guilt. The lawyer, being convinced that the State's evidence of guilt was overwhelming and that the only chance McCoy had of escaping the death penalty was to admit the killings, disobeyed his client's explicit instructions and told the jury McCoy had killed the victims. The jury convicted McCoy and sentenced him to die.


There was no dispute that the lawyer disobeyed McCoy's clear instructions.


The Court, through Justice Ginsberg, said: "We hold that a defendant has the right to insist that counsel refrain from admitting guilt, even when counsel's experience-based view is that confessing guilt offers the best chance to avoid the death penalty."


3 Justices dissented, saying the lawyer only admitted McCoy killed the victims, not his guilt of the offenses charged (first degree murder).


Lawyers have to make many important strategy decisions during a trial based on their training, knowledge, experience and skill. Some of those decisions require the client's consent. If the client knowingly and voluntarily chooses to ignore the lawyer's advice, then the lawyer must obey the client regardless of the consequences.


An exception to this rule is when a client tells his lawyer he intends to testify and tell a lie. A lawyer cannot ethically call a witness to testify whom he knows in advance intends to tell a lie. This is not to say that lawyers don't call lying witnesses to testify but, in reality, it is very rare that a witness exposes his intent to tell a lie in advance of his testimony.

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Distracted Driving in an Autonomous Car

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In March, 2018, an autonomous vehicle being tested in Arizona struck and killed a pedestrian. An exhaustive investigation was undertaken by the National Transportation Safety Board (NTSB). The results were released on 5/24/2018.


The NTSB found that the vehicle’s computer system spotted the pedestrian 6 seconds before impact, but it did not slow down or brake the car.


The vehicle in question was a Volvo XC-90, which is equipped with its own sensing technology and an emergency braking system. Importantly, Uber, the company testing its autonomous technology, had disabled the Volvo emergency braking system to “reduce the potential for erratic vehicle behavior.” The dead pedestrian paid for this decision.


The vehicle also had a safety driver. Dashboard cameras monitoring the driver’s behavior prove that the safety driver was looking down and away from the road before striking the pedestrian.


Uber has temporarily suspended its testing, but it intends to restart and several other companies are testing.


I have written many times about the danger of distracted driving. It seems likely true that this safety driver felt free to be distracted because of the autonomous nature of the vehicle. It seems like human nature to be lulled into a false sense of security. For autonomous vehicles to be safe, they will need to be totally self-sufficient and not depend on the human driver at all. 


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Workers Lose a Big Case

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The United States Supreme Court ruled on 5/21/18 that companies can force their employees to resolve their claims in arbitration rather than in a court of law and that agreements which prohibit employees from banding together in a class action case are enforceable. This decision is a major blow to all workers who have signed employment contracts which contain these provisions.


It is estimated that 54% of non-unionized employers use mandatory arbitration clauses today, up from 2% in 1992.


The vote was 5 to 4 with Justice Ginsberg delivering a forceful dissent from the bench.


Justice Gorsuch, a Trump appointee, wrote for the majority. His opinion appears to be an about face in his thinking. In a 2015 dissent involving mandatory arbitration provisions in consumer contracts, he said prior cases upholding mandatory arbitration provisions “have predictably resulted in the deprivation of consumers’ rights to seek redress for losses, and, turning the coin, they have insulated powerful economic interests from liability for violations of consumer protection laws.” Obviously, the very same thing can be said of employment contracts and the end result will be that because employers are “insulated” from liability to their employees, they will shortchange, cheat and abuse them. Gorsuch apparently is not worried about his hypocrisy.


With this decision we now have mandatory arbitration in consumer contracts (banks, credit cards, rental agreements, nursing homes, cell phones, etc.) and employment contracts. In effect, the Supreme Court has O.K.’ed the creation of a parallel, private and confidential judicial system that stacks the deck against consumers and employees.


One of the many pities here is that the vast majority of employees have no realistic choice other than to sign these agreements. If you are a nonunion worker and you need the job, you will sign and, even if you don’t sign that agreement, the next place you apply will probably have a similar agreement.


Considering the lack of real wage growth for lower and middle class workers over the last 40 years, it is amazing more workers have not unionized. Without a union, workers have no bargaining power and no legal protection.


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