Why We Hate Arbitrary Caps On Damages

Saw this article today about the very sad story of a little boy who suffered (and continues to suffer) due to the admitted negligence of his treating doctors and facility at which he was treated.  As a trial attorneys who represents those injured because of others' negligence, we see and hear about these cases all the time - maybe not on such a traumatic level but people are damaged by others' negligence on regular basis and, I believe, we as a society have decided that those who are injured deserve to be compensated for their damages.

Listen, I understand the plight of the insurers and treating doctors but there has to be some other way to solve this problem.  It is clear that statistics dispel the notion that "frivolous lawsuits are ruining the system" as the propaganda that it is - asserted by business and insurance company interests who seek to maximize profits over justice for individuals legitimately harmed by someone else's mistakes.

And, even if I'm completely wrong about the above, i.e., frivolous lawsuits are ruining something/anything - does limiting the caps on damages for those that really, honestly deserve and need it justify the stated goal?  I think of it more like this:  the American criminal justice system stands (or at least is supposed to stand) for the proposition that it is better to have 100 criminals go free than to convict one innocent person.  (Boy, as a criminal defense attorney, I sure wish it really worked that way; but, I digress....hey, if you need a criminal defense or personal injury attorney, come see us here!)

Extrapolating that to this scenario, this is how I see it - better that we have to deal with 100 frivolous lawsuits and their associated headaches than to have THIS happen to even one family.  Before I'm willing to hear ANYONE's allegedly legitimate economical arguments in favor of caps on damages for medical malpractice (or anything for that matter), I want ONE FRIGGIN' PERSON to honestly tell me that if they found themselves in the position that this family found themselves in which, for those who don't want to click on the link to the story, let me explain:

a jury, presumably fairly chosen by attorneys representing both sides; attorneys hired by the parties presumably because those parties felt these attorneys were qualified for the task at hand; these attorneys presented this case to this jury.  The jury, for whatever reason (again, I think only fair to assume that it was for the right reason), determined that $12 million dollars was fair compensation for what happened. 

Regardless, because some pinhead, paper-pushing legislator who had nothing to do with any of this (or more likely the lobbyist(s) who had those legislators in their hip pocket(s)) arbitrarily decided $3 million dollars was the most a person can get NO MATTER WHAT HAPPENS, then this family gets $3 million and not a penny more.  Of course, that is the case, as I said, no matter what happens including in this case where this family has already paid $2.5 million in medical bills and still owes much more, not to mention the ongoing and future care this kid will need.....how can we, as human beings, support this result?!?  DOES THIS MAKE ANY EFFING SENSE!?

Hit me with your thoughts, support, critiques, criticisms, what have you...but, trust me, no matter what anyone says, if this was them, their child, their relative, their friend, they'd be screaming bloody murder when they learned that they can only have 1/4 of what a jury awarded them because of some arbitrary number picked by a legislator years before having nothing to do with their case...OY!

Will The Oregon Legislature Actually Do Something That Makes Sense?!?!

I was turned onto an excellent article (see, here) recently by my fabulous law partner that discussed an old, favorite topic of mine - sentencing reform.  It seems that someone introduced a bill recently (HB 3194 - see it here) that addressed the skyrocketing costs of incarceration and the enormous prison budget in Oregon.

As I have mentioned previously, statistics clearly show that the crime rate has not changed drastically in a very long time.  In the US, it steadily rose after World War II and peaked between the 1970's and 1990's.  It has been in a pretty steady decline ever since.  In other words, any recent hype and talk about crime waves, epidemics and the like are just that - talk.  The overall statistics do not support the need for bigger enforcement budgets, tougher sentencing laws, and all of our politicians, legislatures, and cops do not need to "get tough on crime" because no matter what we have done over the last 15 years or so hasn't made a shred of difference!

What has changed though, is our prison population which, both here in Oregon and nationwide, continues to spiral out of control.  What does that mean?  It means we are constantly having to build and fund bigger prisons for the people we stuff inside them though doing so doesn't seem to have any affect on the crime rates.  Does this make sense to anyone?

For decades now, Oregon has been no stranger to this trend especially since the passage of the draconian Measure 11 long ago.  AND, Oregon is no stranger to the overall trend that we have and continue to stuff so many people into our prisons, we can no longer sustain the cost of that.  So, someone commissioned a study and found that this is as insane as it sounds.  And by insane, I mean the old Albert Einstein definition of insane.

As a criminal defense attorney, I saw first-hand how the prosecutors can use and abuse this statute to force people who committed essentially lower-level crimes into pleas by just threatening or charging them as Measure 11 crimes adding a hefty mandatory minimum sentence to any conviction.  And, for some ridiculous reason, people sentenced under this statute get no good time credit and no access to any prison programs.    Working as an attorney in both the criminal and civil worlds obviously gives me a unique perspective on this issue and, maybe, I'm too close to the issue to see big picture though I'm brash enough to say, "I doubt it!"

Regardless, we hope, someone and something is going to be done about this if this billed gets passed.  Alas, the law and order types (and politicians who prosper on fear mongering to these people) will fight this bill hard telling everyone that we are all in grave danger if we reform some of our sentencing laws and empty some people from our prison population - or, allow them access to some program that might actually better themselves and make their time in custody of some benefit to them, and indirectly, society in general.  That position is perfectly espoused in this editorial which is the counter-point to the article that inspired this post.  What do you think?

Bojack Attacks Art Tax

Our esteemed colleague, fellow attorney, and friend, Jack Bogdanski has filed a lawsuit against the City of Portland over the recently enacted art tax.  The lawsuit, filed in Oregon Tax Court, claims that the tax violates Oregon's Constitutional (see, Article IX) ban against a head or poll tax.  Read more about the lawsuit here, or here, or here.  Read Mr. Bogdanski's fantastic blog here.

While the Mayor's office has remained mum on the lawsuit thus far, they apparently have been working to amend the tax to address some of the same issues raised by the lawsuit.  While another esteemed colleague, fellow lawyer, and excellent Judge, The Honorable John Wittmayer, already ruled on a similar argument last summer, we here at RG, LLP have little doubt that Bojack knows what he's talking about.  (Though we also must admit that Judge Wittmayer's smart as whip, too.)  All I can say is if it wasn't for Jack, I never would have passed the tax portion of the bar exam.  By the way, thanks for that Jack, not sure I ever got the opportunity to properly thank you for that one. 

As criminal defense, personal injury, and employment trial lawyers, we try to stay away from the tax stuff, but good luck!  If it violates the Oregon Constitution, it should be fixed.  Let's hope that between the mayor's office, the tax court, and whomever else is supposed to be in charge, we can get this right.

Suspect Drops Jailhouse ID While Fleeing from Bank Heist

I heard this story over and over on the news this morning.  This is one of those times, as a criminal defense attorney, that you wished your clients were a little smarter.  In all honesty, this guy probably has a serious addiction or mental health problem and expecting people similarly afflicted to have cogent, rational thoughts is even more ridiculous than his actual behavior.  Or, is he just that stupid?

What do you think?

The.Death.Penalty

A letter I wrote to the editor of the Oregon State Bar Magazine.  We would love to hear your thoughts on this very compelling subject. 

Why Chance It?

I write this in response to the article about the death penalty debate in Oregon (June 2012). In the interest of full disclosure, I am against the death penalty. I do not believe a civilized society should be in the business of killing its citizens.

From a pragmatic perspective, having represented hundreds of criminal defendants, I do not believe the death penalty is a deterrent. If there is a legitimate study that shows otherwise, I have never seen it.

The bottom line is this: The death penalty is an inherently flawed system that unnecessarily costs the state of Oregon billions of dollars. And when was the last time Oregon executed someone? What comes with a death sentence is the constitutionally required appellate process. And that process is very, very expensive.

We pursue death penalty convictions knowing that we really never execute anyone; and we do so fully aware that the process that comes with a death penalty sentence is incredibly expensive. I once asked a prominent district attorney, “Why does your office pursue the death penalty when you know we don’t end up executing in Oregon?” His response: “Because death row is a miserable existence.” So, given such a mindset, wouldn’t it make more sense to give people true life sentences and simply impose the same prison conditions as those on death row?

Lastly, and most importantly, in recent years this country has witnessed hundreds of death row inmates exonerated for the crimes for which they were convicted. Sadly, many of those innocent individuals were exonerated after they were executed. So why would we ever chance it? How can you tell me that some unquantifiable benefit of the death penalty outweighs the fact that at times we get it wrong?

Everyone loves to blame the lawyer

Last week the Oregon Department of Human Services agreed topay 1.5 million dollars to the heir of Jeanette Maples, a child who was brutallyand savagely starved and tortured to death FOR YEARS by her mother andstep-father. 

The mother is currently on Oregon’s death row (while I’m still 100% anti-death penalty, Mother Maples certainly makes me have a greater appreciation for those who support it).  The step-father is serving 25-years. 

What this child endured is unimaginable.  Like most parents, when my child scrapes herknee or is sick with the flu my heart hurts.  It is physically, intellectually, and emotionally impossible for me to comprehend how a mother could do this to her child. 

As a citizen, the fact that DHS received repeated reportsof abuse yet failed to intervene is shocking; stunning; unfathomable. 

As a lawyer, the fact that DHS did nothing is truly mind blowing.  Why? Because I can’t count the number of cases I’ve handled where DHS has immediately intervened despite having:  1. little or no evidence supporting the allegations; 2. obvious improper motivation by the accuser (i.e. wronged dumped spouse trying to get back at ex).  

In these cases, DHS holds incredible amount of power and autonomy.  It takes months if not years for these parents to be reunited with their children and often that happens only after the parents agree to do whatever DHS asks.  Once DHS opens a case? Well….good luck. 

My point:  HOW DID THEY GET IT SO WRONG IN THIS CASE?  The step-grandmother reported abuse against her own son!  Mandatory reporters reported abuse! This girl was tortured for years.  She was starved. She was murdered.  And DHS missed it? 

And all I keep hearing about is the outcry that the attorney for the estate is going to receive a third of the settlement.

“No one should profit from this horrible crime.”

“That lawyer should donate all the money he receives to an organization that prevents child abuse.”

“Greedy lawyer”

Are you kidding me?  This lawyer is the reason DHS is being held accountable.  This lawyer’s advocacy will prevent future instances of child abuses – this lawsuit and the resulting settlement will force DHS to change things. 

This lawyer is being compensated for the hundreds of hours of time he put in to this case.

Like the lawyer in Jeanette Maple’s case, my firm takes cases on contingency.  What this means:  if we recover a settlement or prevail at trial we get a percentage of the recovery. If we lose, we get nothing.  Doesn’t matter how many hours we invested in case.  Doesn’t matter howmany nights we were away from our families. We get nothing if our client loses. 

Don’t you think it’s only fair that we get compensated if our client wins? 

Interesting Legislative Issue

An interesting legislative debate is underway concerning medical billing, health care, and patient safety issues. I cannot claim to be knowledgeable enough about the situation to intelligently comment but here are some thoughts from someone who is:

http://www.davidsugerman.com/2012/02/08/memo-to-the-oregon-legislature-healthcare-transformation-starts-with-patient-safety/

Please click, read, and tell us what you think.

Thanks,
The RG Blog Team

Drug Epidemic(?)

Saw an interesting article in yesterday's paper (see, here). Essentially, a local Multnomah County DA has proposed a new bill to the Oregon legislature to drastically alter drug prosecution laws - at least in regards to heroin. As a criminal defense attorney, this is piqued my curiosity.

Now, I haven't read the actual bill but the article says the proposal would amend the definition of "mentally ill" to include heroin addicts and allow a hearing to "commit" those addicts to treatment instead of the standard penalties for possession.

First, I applaud the idea of someone on the prosecution side of things thinking outside the box. This country needs to come to the sobering (yes, pun intended) reality that the current "War on Drugs" is an unmitigated disaster, and total failure. Simply put, it is not working and all the research and statistics prove that. So, on that end, bravo Mr. Prosecutor.

Having said that (my favorite phrase courtesy of Jerry Seinfeld and Larry David), this plan won't work for several reasons. First, as a criminal defense attorney, my experience is that there simply is not enough treatment beds or facilities. I have had numerous clients desperately wanting to get into inpatient treatment spending months in jail or prison waiting for an opening. So, unless the bill is going to fund new facilities, we simply do not have the room for these "commitments". The article says that the bill would pay for the treatment with money currently used for incarceration but it doesn't explain how or if enough money would be funneled from incarceration costs to treatment costs.

Second, and this is simply my personal and anecdotal experience, drug addicts often won't stick with a treatment plan until they are truly ready to quit - and that is a personal issue the timing of which cannot be measured in statistics or attacked with a broad brush or macro-analysis.

Further, my other problem with this plan is the terms. The article says that anyone with two drug possession convictions in the last five years would (or could, is this a decision left solely up to the individual prosecutor?) be subject to the new law. Listen, I'm no heroin addict, nor have I used heroin, but we need to have some serious discussions about the difference between an addict and a recreational user. I know there's little question about the powerful affects of this drug and, no doubt, anyone using is at-risk for an overdose - but two times in five years! To me, that doesn't sound like someone knocking on death's door. The real desperate junkies must have more contact with the criminal justice system than that. When you're using on a somewhat regular or daily basis, it's simply unavoidable.

Just like with so many other things, the system would take a broad-brush approach with this new law, rope way more people into its purview than is appropriate, and then miserably fail to deliver as all these people "committed" to treatment would be sitting around (in jail?) waiting to get into treatment without access - sound familiar? It does to me in my experience with the criminal justice system. Can't we take more pragmatic approaches to systemic changes and actually accomplish something?

Obviously, this whole discussion eschews all the significant constitutional and legal issues that would abound in forcing people into treatment but the article, and my former colleague, addressed those and I agree with his sentiments. But, maybe, this is the start of a discussion of moving drug addiction from the criminal justice system to the public health and mental health systems which is, in my humble opinion, a step in the right direction. However, we have got to properly fund those areas of society before we even begin to make that transition - moving some of the prosecution and incarceration funding in that direction would be a start. And, for all those who think taking money away from prosecution, enforcement, and incarceration is a terrible idea - do some research. The crime statistics over the last twenty years show a steep and steady decline. Any recent crime and drug epidemic discussions (at least on a macro-level) are mostly the products of political maneuvering and propaganda.

Finally, and most telling to me, is the statistic buried in the last line of the article. Of course, Mr. Crusading Prosecutor probably failed to mention this (and it certainly seems to fly in the face of the "problem" presented at the article's outset, i.e., the "epidemic of heroin overdose deaths") but the Oregon state medical examiner reports show that heroin-related deaths acutally dropped from 2009 to 2010 (the numbers for 2011 are not available yet)...hmmm....interesting.

Holy S*&#!!!

Stumbled across this story yesterday. And, I have no idea what to say about this besides it doesn't really reaffirm my belief in humanity.

The story is that, apparently, this guy got arrested for driving under the influence and then proceeded to spend two years in solitary confinement without so much as appearing before a judge let alone having a trial on the charges. Now, as an experienced criminal defense attorney, it is baffling to me how this could happen. There were a couple of factors that appear to have complicated his case but nothing that explains this mistreatment.

First, he was apparently arrested in what was allegedly a stolen car. But, the article says, he borrowed the car from a friend. So, his friend lent him a stolen car or it was a mistake by the police? Not sure. Unfortunately, the story leaves out a lot of details that I would like to know. Maybe they are things only an experienced criminal defense attorney would ask, but things I would like to know anyway.

Another thing was that he was apparently not well mentally upon his arrest. He was placed in a padded cell for a few days, and then transferred to solitary. Again, my experience tells me that plenty of mental ill people end up in the jail system and get, how do we say, misplaced(?) for a time...but I have never heard of anything like this....two years?! And all without having a trial or seeing a judge!

Where was his family? I want to say where was his lawyer, but if he never saw a judge, he probably never had a lawyer. See, your criminal defense attorney, usually a public defender for those in custody, are appointed when you first appear before a judge so....

The other part is who was in charge of this jail? Are you telling me that ALL (or at least a lot) of the guards working in this jail must have known something about this guy and no one did anything!? Scary....

Finally, going back to an earlier post I wrote about people wanting tort reform and/or a cap on damages - what say you about this case? Would justice be served if he got capped damages? What are two years in solitary confinement worth? Read the article before you answer that question....Apparently this jury thought it was worth $22 million. But, if his damages were capped, the county (or whomever was in charge of this mess) could just offer him the maximum and be done with it. Nothing would ever have been publicized - there's much less deterrence for someone really evil or just sick in the head to do terrible things (things that some of us may have trouble believing people would do, but look above for the unfortunate proof that some people are just awful).

As an attorney, it would be hard to advise a client to try their case when they are being offered, pre-trial, the most a jury could award. So, these cases are supposed to deter others from doing these things....sorry, it's too bad taxpayers of that jurisdiction may be paying that money (though, hopefully, the county had at least some insurance), but I don't see how the system could work any differently. Can someone explain to me what else this guy should have done in this circumstance? How is the system to be set-up to properly rectify this? (I'm talking the civil system, not criminal - clearly the criminal justice system miserably failed this guy but that's a different story.) The bottom line is this - who among us is to decide how much two years of mistreatment in solitary confinement is really worth? The founding fathers thought a jury of his peers was who....and, until I hear something better, I wholeheartedly agree.

Oh, and if you happen to get arrested for drinking and driving (or anything else for that matter), call a lawyer for god's sake! I know some good ones if you need a referral...

War on Drugs

A quick note about something I read in today's paper. It was a Leonard Pitts, Jr. editorial about this book (pictured right). Apparently the book is about how the War on Drugs has essentially become the new Jim Crow because of how it has unevenly been applied to the black population.

I have not read the book but these topics have always fascinated me - perhaps even why I became a lawyer. I studied them in college and continued studying them in law school. Now, I see the War's affects on people first-hand as a criminal defense attorney. I am not saying anything about this book - I have not even read it. But, Mr. Pitts so believes in the book and its premise that the editorial urged people to email him and he would send you the book free of charge (including shipping!). (Of course, after I emailed him, I saw his disclaimer - at the end of the month, he will draw 50 names from the emails he receives and those 50 people will get the book.) So, here's hoping I win...

The interesting part of the article was that he claimed, "Although white Americans are far and away the nation's biggest dealers and users of illegal drugs, African Americans are far and away the ones most likely to be jailed for drug crimes." While I have not seen any official statistics on that, I would not be surprised to find that this statement is backed up by the numbers. The interesting part is why...and, although there are plenty of obvious fallacies in the logic (there are many more white people for starters so it's not a proper comparison or does that make it an even stronger statement?) there is still plenty to discuss about why it is a true statement...and, what, if anything, we should do about it. As a lawyer, I have plenty of ideas about why this happens and what we should do about it...but, I'll save those for now and read the book to see what it says. But the War on Drugs is a topic that I love to debate.

In other interesting and related news, the Canadian liberal party voted to legalize marijuana. No, Canada is not legalizing marijuana; but, a bunch of people there think they should...

Oh yeah, as for winning the book....don't worry about it. I went straight to the Multnomah County Library's website and ordered it from them for free (including shipping!) - they'll email me when it arrives...(btw, my love for the Multnomah County Library could encompasses a year's worth of blog posts).

News of the Week

So, I get the Oregonian delivered to my house during the week. Sadly, I rarely get the chance to sit down and actually read the paper (yes, I have two young children) even though it doesn't take long - let's be honest folks, the Oregonian is not the most dense publication around; for me anyway...Not to be a snob but I grew up right outside Washington, D.C. in Maryland and was raised on The Washington Post so I was spoiled at a young age - something I was not aware of until I began my slow migration west starting in college.

Anyway, last night I had a chance to look at Tuesday and Wednesday's Oregonian and cover stories from each day interested me for very different reasons.

First was Tuesday's front page story. Apparently, for the FIRST TIME this year, police officers are going to be drug tested. ARE YOU EFFING KIDDING ME!?!?! Now, I guess I was out of the loop here, but cops weren't being drug tested before now? Now, as a criminal defense attorney, I have my own issues with the police, but that's a whole different subject. I am just shocked that this wasn't occurring before now. I mean I would have to guess that a majority of people I know with myriad jobs are drug tested unless they are self-employed. For example, someone I know was looking at applying for a human resources job and the job posting said that candidates and/or employees of the company would be subject to drug testing. A friggin' human resources position!! And, I know, don't forget I'm a lawyer, you don't need to explain the difference between public and private employees to me. I know, a private company can do pretty much whatever they want on this issue and that's fine.

My point is that years ago our society slid so far in the direction of paranoia about "drugs" that all these companies just said we're going to drug test everyone, even for simple desk jobs. My clients are forced to deal with this all the time. These people aren't driving school buses, operating heavy machinery, or doing anything of concern to the general public. I mean human resources?! I have always been of the mind that if someone is doing drugs enough to cause a disruption in their job, their employer should be able to tell. It can then take action and test that employee, fire them, what have you. But if the human resources person wants to smoke a little weed on their day off from work, that's not ok? Is that going to put this company in danger? Are they going to misplace someone's personnel file? Forget to update the employee handbook? Forget to change your health care decision during open enrollment? What is the danger here?

And, on the public/private side, I know someone else who works for the government - the feds mind you. He manages property that the government owns or leases for office space. It's a good gig - I think he likes it. But, he gets drug tested. I know, really important that this guy isn't smoking weed in his free time - that could be really dangerous. He could mess-up a government lease and the government might end up paying more than it needed to for something - scary right?

The point is, he's getting drug tested. And, all these years, Portland Police weren't? He's managing property for the government and getting tested, but cops don't? Do I really even need to explain why it would be more important to drug test the police more than other jobs?

The other story that caught my eye was this - more of a personal pet peeve of mine. But, finally, there's some press on this incredibly annoying and frustrating part of air travel. Thank you, NPR. Not to sound uppity, but I do a fair amount of flying and, since I had kids, I travel with them - not often by choice. For years, I have done everything in my power to ensure that when I do fly, I get to seats together with my kids. Listen, I don't want to sit with my kids. I would love a friggin' break from them. This desire was a wholly unselfish effort to appease my kids, and, even more importantly, the poor bastards that may get stuck sitting with my kids instead of me.

So, do the airlines help with this AT ALL!?! Of course not. My most recent flight, just days ago, not only did I reserve seats together when I bought the tickets over three months before our departure date, but because of my constant struggle with this I spent over an hour on the effing phone with some lady in Bangladesh the night before our flight desperately trying to confirm that we are sitting together. She assured me over and over again - "Don't worry about it, sir, you are sitting together."

So, I show up at the airport the next morning and guess what? Then, I have to argue with the ticket counter people, the people at the gate, and what do I get? They expect me to fall over myself thanking them for getting us within rows of each other. And then they tell me there's nothing else they can do - the flight is booked, I'm SOL (no, not "statute of limitations"). So, I pay them way too much for a crappy seat on this flight and I have to get on the plane and beg some stranger to switch seats with me so I can have an infinitely less enjoyable cross-country flight and sit with my annoying child who won't let me read more than two sentences in my book without asking for something!

And, the real rub about all of this? You get on the plane and the majority of people are flying alone - many don't care where they are sitting as long as it's not a middle seat, right? Wait, all these people are flying solo and the airline can't have figured a way to shuffle these people around so I can sit with my family!?!? AAAAARRRRRRGGGGHHHHH!!!!!!!! Next time I fly, I may really lose it....at least I know some good criminal defense attorneys who can help me.

The airline's solution? Pay more to sit with my kids? Good luck with that. No way am I paying more for that - let some unlucky putz sit with my kids and let the flight attendants arbitrate that one. I'll be in the back with my i-pod on full blast....