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Friend With Care

facebook screenThe ever-increasing use of social media sites such as Facebook, and the tendency of many people to post personal photos and details on their pages, present an almost-irresistable temptation to lawyers in search of potentially damaging information about witnesses or parties involved in their cases.  Yet despite the ready availability of this information, lawyers need to be mindful of their ethical obligations as they try to gain access to personal sites.

The overarching principle for lawyers to remember is that they must not be deceitful or misleading in attempting to access information from social media.  It is pretty clear that this means that a lawyer cannot use a false name or identifying details to induce the target to “friend” him.  However, different jurisdictions disagree about whether lawyers must inform potential “friends” of their connection to the case or the true purpose of their friend request.  Some states say that as long as the lawyer tells the truth–even if it’s not the whole truth–that’s enough.  Other jurisdictions suggest that the omission of significant information (especially when that information might cause the target to reject the friend request) is misleading and therefore unethical.

The second basic principle is that the lawyer can’t use someone else to do what he himself would not be permitted to do.  So it doesn’t solve any ethical problems to ask a paralegal, or even a friend, family member, or private investigator to make the request.  The lawyer is permitted to use information obtained by someone else, as long as the person was not acting at the lawyer’s direction.

Simply viewing a page that is accessible to any member of the public (even if it requires Facebook registration) is generally approved, because it does not involve any “communication” with the page’s owner.  Likewise, sending a friend request that contains all of the lawyer’s identifying information and connection to the case is not unethical, so long as the target isn’t represented by counsel–it’s just not likely to be successful!

While the Massachusetts Office of Bar Counsel has not yet addressed the social media issue, other jurisdictions are beginning to weigh in.  Just last month, the New Hampshire Bar Association issued an ethics opinion outlining the permissible methods of accessing social media under that state’s rules.  The New Hampshire opinion contains a helpful review of emerging ethics opinions from other jurisdictions.

But it’s pretty clear that if the owner has restricted access to the desired information, and refuses a proper friend request, the only safe way to access this type of information is through a proper discovery request such as a deposition subpoena directed to the witness and/or Facebook.  Anything short of complete transparency and honesty is a recipe for disaster.


The Great Investment Nobody Wants

Interest-Rate-300x300Last week, Massachusetts Lawyers Weekly published an editorial advocating that the interest rate on tort judgments be reduced from 12%, where it has stood since 1982.  Noting that the 12% rate is “dramatically higher than commercially available rates,” the local legal newspaper claimed that the rate ignor[es] the economic realities of 2013.”  The local defense bar has called the rate a “windfall” and a “lottery.”

The truth of the matter is that no injured victim in his right mind would intentionally allow a case to go to a jury verdict simply to gain the “advantage” of the 12% interest rate.  Injured people deserve and need prompt, fair compensation, often simply to pay their medical bills and replace lost income.  When they don’t get it because of delays in the litigation process, the consequences often include massive debt and even financial ruin.  And incidentally, when those victims use their credit cards to cover their medical bills and living expenses, they don’t pay 12% interest on their debt–they pay 18% or even 21%!

So that 12% interest rate may sound like a great investment, but the reality is that it doesn’t begin to address the financial devastation caused by most serious injuries.  In fact, many of those same defense lawyers who decry the 12% interest rate for injured victims charge 1.5% per month (18% per year) on their own unpaid bills.

The 12% interest rate comes into play only when a case is tried to a verdict–it has no effect on the more than 95% of cases that are settled before trial.  And it applies only to general tort claims; an exception carved out for medical malpractice cases allows only a much lower interest rate in those cases.   Since 2004, the interest rate for malpractice cases has been established by M.G.L. c.231 s.60K at the one-year Treasury Bill rate plus 4%; last year, the legislature lowered it again, to the one-year rate plus 2%.

And in attempting to justify its position by referring to other states’ somewhat lower judgment interest rates, Lawyers Weekly ignored our neighbor to the immediate south.  The Rhode Island Supreme Court recently refused a defendant doctor’s pleas to toss out a similar interest rate that applies to Rhode Island cases.  In Oden v. Schwartz, the Rhode Island court held that the 12% interest rate on judgments in that state is constitutional, and serves the dual purpose of compensating successful plaintiffs for the delay in obtaining the compensation they are due, and encouraging pre-trial settlements.

The clamor for lower interest rates is simply another effort by insurance companies to increase their bottom line at the expense of injured people.  Before the legislature attacks this vulnerable group by lowering interest rates, it would do better to look at all the other industries where interest rates are much higher.


Common Sense and Elephants

insuranceThe Rhode Island Supreme Court recently approved the actions of a trial court judge who took the unusual step of speaking to jurors about insurance–an issue that is ordinarily mysteriously absent from the evidence in most personal injury trials.

The trial judge in Oden v. Schwartz instructed the jury that they were not to consider such issues as medical or other insurance or attorney’s fees.  She further told them that they were not to consider what might happen to the physician’s malpractice premiums as a result of a verdict against him (which is probably nothing).  Predictably, as whenever there is any mention of insurance at trial, the defendant doctor’s lawyer objected vociferously, and when there was an adverse verdict, appealed.

In striking a blow for common sense, the Rhode Island Supreme Court held that it was entirely proper for the trial judge to address issues that are often in the minds of jurors, and to tell them–accurately–that these are not proper considerations in their deliberations.  The Court noted that the trial judge “simply addressed the reality that jurors often wonder about liability coverage, especially in instances where there is typically an insured risk, such as medical malpractice.”

The Rhode Island court is entirely correct.  We all know from our own experience on juries and from hearing comments by jurors after trial that they are well aware that doctors carry malpractice coverage.  They also assume that their verdict might impact the doctor’s premiums–even though this is not usually the case.  They usually suspect that large medical bills are or will be paid by health insurance, and expect that the plaintiff will have to pay his attorney a contingent fee.  Yet none of these factors is a proper consideration in the jury’s deliberations.

These issues are the elephant in the corner of the courtroom.  They are a natural part of a juror’s thought process–yet the rules of evidence forbid any mention of these issues.   The approach chosen by the trial court and approved by the appellate court is sensible, because it confronts the elephant head on, and attempts to explain the absence of any mention of logically related issues by telling the jurors that they are not proper considerations.

If anything, it would make sense for trial judges to go even further: to explain to jurors that their verdict depends on whether a defendant is legally responsible, and not whether he is insured, or that most health care insurers can recover what they’ve paid from the plaintiff if the plaintiff gets a verdict that includes medical expenses, so the plaintiff will not receive a windfall.  The best way to prevent jurors from improperly taking these factors into account, or from making incorrect assumptions, is to be frank, to name the elephant in the corner and explain why it must be ignored.

Read the Rhode Island court’s opinion in Oden v. Schwartz here.


Lawyers No Better than Doctors

conspiracy of silenceFor years, I have roundly criticized “peer review” statutes, which permit doctors to conduct private discussions about medical errors, and to refuse to tell even the patient about the discussion.  The principle behind these statutes, which make these discussions privileged in all 50 states, is that doctors won’t tell the truth if they know anyone might find out about it.  The premise is that health care will be improved by allowing doctors to discuss their mistakes freely among themselves.

Now, the Supreme Judicial Court has decided that lawyers are no better than doctors in terms of honesty and openness.  In a recent decision, RFF Family Partnership LP v. Burns & Levinson LLP, the Court held that a members of a law firm could have secret conversations among themselves to discuss a threatened malpractice claim by an active client of the firm.  The result strikes me as completely inconsistent with the fiduciary duty that we as lawyers have to put our clients’ interests above our own.

In RFF Family Partnership, the client sent the firm a letter complaining that the firm had failed to identify and pay off an existing mortgage, and threatening a lawsuit for legal malpractice.  The attorneys representing the client met with the firm’s “ethics counsel” to discuss the firm’s liability and the best course of action.  The firm represented the client at the time of the discussion and continued the representation for sometime thereafter.

Rejecting the client’s argument that the firm was placing its own interests above its fiduciary duty to the client, the SJC held that the communications with the in-house ethics expert were protected.  The Court reasoned that this would benefit clients by encouraging lawyers to get dispassionate advice about whether to withdraw from representing a current client who threatens a lawsuit, so that the lawyers would not withdraw “prematurely or without careful advice.”

The court placed four conditions on a law firm’s ability to hide behind the attorney-client privilege: 1) the firm must designate one of its lawyers to represent the firm as in-house counsel; 2) the designated lawyer must not have performed any work on the case that is the subject of the potential malpractice claim; 3) the firm cannot bill the client for the time spent discussing the potential claim with in-house counsel (really?); and 4) the communications must be made in confidence and kept confidential.

But as someone who has railed against peer review secrecy in the medical profession, I am disturbed by the idea that the legal profession should be seeking a similar foxhole.  So long as we represent a client, our first obligation is to that client.  If we’ve made a mistake, we should be accountable.  To allow lawyers to hide conversations from their clients poses a very real likelihood that the lawyer’s own interests will take precedence over the client’s.  At a minimum, it creates an unsavory appearance that the lawyer is looking out for himself, at the client’s expense.  These results are wholly inconsistent with the high ethical standards that the legal profession has always aspired to attain.

Read the SJC’s decision here.


New Hampshire Jury Overrides Malpractice Panel

Doctor+w+no+headAlmost eight years ago, patients seeking to bring medical malpractice claims in New Hampshire fell victim to a cumbersome and expensive legislative scheme advocated by health care insurers as a “screening” system.  The panel system requires each medical malpractice case to be heard by a three-member panel consisting of a doctor, a lawyer and a retired Superior Court judge.  The panel hears evidence and makes findings about the merits of the case–and if unanimous, either for the patient or the doctor, those findings are admissible at trial.

The problems for patients were many: the screening process introduced another layer of expense to an already expensive process, making it more difficult for patients with less-than-catastrophic injuries to bring claims.  The doctors who sat on the panels almost never found for patients, meaning that the findings were either divided or unanimous in favor of the doctor.  And instead of encouraging early settlement, the introduction of another step in the process created more delays.  Still, the system continues, despite a recent report from the New Hampshire Insurance Department concluding that the process is not working as intended, and in fact, has increased expense and delay.

But at least one patient has managed to overcome the chilling effect of an adverse panel finding, winning a jury verdict despite the usual introduction of a unanimous panel decision in favor of the defendant.  Just last month, a Hillsborough County jury awarded $1.5 million to the family of a man who died after his cardiologist failed to order tests to determine the cause of repeated fainting spells.  The case is reportedly the first time a jury has ignored a unanimous finding for the defendant to return a verdict for a plaintiff.

The effect of defense-oriented panel findings may have been eased by last year’s New Hampshire Supreme Court decision, In re Southern New Hampshire Medical Center.  As originally written, the screening panel statute prohibited the jury from learning anything about the panel other than its actual finding.  The Supreme Court’s decision permits the jury to learn that the panel is an abbreviated proceeding that does not hear all of the evidence presented at trial.  The decision also permits parties to offer evidence of statements made by their adversaries at the screening panel, in order to prevent a party from changing his position at trial.

The recent jury verdict demonstrates that lawyers trying malpractice cases with an adverse panel finding should think carefully about how to present the finding to the jury, and how to explain the differences in the proceedings.   While the damaging effect cannot be ignored, the ability to explain the circumstance and procedure of the panel to the jury should help to insure that malpractice cases are fairly tried on their merits.


Jury Management in the 21st Century

jury-selectionThe New Hampshire Superior Court announced last week that it would soon implement a new computerized jury management selection that should benefit jurors, court personnel, and lawyers alike.

The new system, expected to be operational late this summer, will assign each prospective juror an on-line access code that will permit the juror to complete the demographic questionnaire, request to be excused or to reschedule jury service, and check on required reporting dates for jury service.  Jurors with no access to the internet will continue to complete the existing paper forms.

The jurors’ questionnaire responses will be compiled by court staff and made available in a pdf document to lawyers who have cases scheduled for trial in the session.  Under current practice, lawyers may either review the completed forms in the clerk’s office, or pay a fee to borrow a paper copy.   Unless the fee is paid, lawyers have no access to the forms during the most crucial time–the actual selection of the jury.

The new system should also ease the burden on court personnel, who now spend significant time collating and reproducing the juror questionnaires.  The system will also allow clerks and judges to review jurors’ requests to be excused and respond electronically.  An additional feature will permit clerks to schedule automated telephone calls to large groups of jurors when there is a schedule change or cancellation.

The technology behind the system is not particularly new or sophisticated by current standards, but because of financial constraints, most state courts have lagged behind private businesses in taking advantage of computerized systems.

When implemented, the New Hampshire system should be vastly superior to Massachusetts, where lawyers usually receive no information about prospective jurors until the jurors are filing into the courtroom.  Court personnel struggle to collect, collate, and copy reams of paper every day, while jurors are often frustrated by the inability to get a response on the automated call-in telephone lines.

Read more about the new system here.


When a Contingent Fee is Not Contingent

dollar_familyIn a previous post, I discussed the benefits of contingent fee agreements, which are the standard compensation arrangement for personal injury cases.   Although subject to more detailed rules than hourly or other fee agreements, the contingent fee system for the most part works flawlessly, to the satisfaction of the many thousands of clients and lawyers who enter into these agreements every year.  This isn’t to say that there are never any problems with contingent fee agreements.  But for the most part, those problems arise when a lawyer tries to use a contingent fee agreement in an unusual way.

A recent decision by the Massachusetts Appeals Court underscores the limitations on the appropriate use of contingent fee agreements.  In Landry v. Haartz, a lawyer tried to enforce a contingent fee agreement in a case where he had represented a couple in a business transaction concerning the sale of their share in a family enterprise.  Unlike some more colorful family business disputes in recent memory, the plaintiff and her sibling co-owner remained on friendly terms throughout, and the sale was concluded quickly, and at a value set by the corporation’s accountants.  The jury found that the lawyer, who had the burden of proof, had failed to prove that the amount of the contingent fee was reasonable under the circumstances, and therefore could not enforce the contract.

While on its face concerning to lawyers who handle contingent fee cases, Landry is actually a situation where there was no real risk to the lawyer, and no significant uncertainty about the outcome of the transaction.  Given the pre-existing business agreement and the friendly relations between the siblings, it is difficult to say that the lawyer’s services contributed significantly to producing the resulting sale.  In the absence of any “contingency” that might or might not occur, a contingent fee is often inappropriate.  This case probably would have turned out much better for the lawyer if there had been litigation about the terms of the sale or the value of the business.

The situation in Landry stands in stark contrast to most personal injury cases, where there are usually significant uncertainties about liability and/or the amount of damages, and where there is usually a genuine risk that the plaintiff may get no recovery at all.  In those cases, not only does the lawyer take a serious risk in contributing his time and money to the effort, his services play a major role in accomplishing a favorable outcome for the client.  Unlike Landry, in these cases, there is a genuine contingency: the client may recover nothing, in which case the lawyer gets no fee and loses his investment in the expenses; the recovery may be far less than the lawyer and client expect or hope at the outset, in which case the lawyer’s compensation is much less than a regular hourly rate; or the recovery may be adequate to provide the lawyer with a fair return on his investment, while allowing the client to receive excellent legal services that he could not otherwise afford.

The important message for clients, lawyers and judges who deal with contingent fee agreements is that the fee must be reasonable, at the time the agreement is signed.  This determination involves considering the nature of the case, and what difficulties may be anticipating in proving liability and/or damages, the skill required to handle the case, and the expected investment of time and money that might be involved.   In the vast majority of cases, both client and lawyer will feel at the end of the case that their arrangement was fair to both of them.

Read the Appeals Court’s decision in Landry v. Haartz on the court’s website.

Contingent fee opens courthouse doors to people regardless of means – also serves as important check on frivolous lawsuits.  If client has money to pay lawyer, lawyer cares less about merits, because being paid.


The Kind of Person Who Sues

courtroom300A lot of prospective clients who call our office start the conversation by saying, “I’m not the kind of person who sues.”

I assume those people don’t really mean that, because otherwise, why would they be calling a lawyer’s office to ask about bringing a lawsuit?  Yet I’m always amazed by how many callers feel the need to tell me what kind of people they aren’t, as if bringing a lawsuit is somehow shameful or wrong.  What most of these callers are actually trying to do is to convince me from the outset that their cases are serious and meritorious, that they have truly suffered a grievous wrong at the hands of someone else.  Left unsaid, perhaps, is the caller’s perception that many people who sue bring frivolous claims over trivial matters, and the caller doesn’t want to be lumped with those litigants.

The “kind of people who sue” include people of all ages, professions, and social, economic, ethnic and racial backgrounds.  Our clients include teachers, office workers, bus drivers, government employees, corporate executives, doctors and nurses, lawyers.  We represent people who are receiving public assistance benefits, and people who have trust funds, people who go to work every day–or used to before they were injured–and people who are retired.  But they all have two things in common.  The first is that they all feel they have been harmed by someone else’s negligence, and they want to do something about it.  The second is that they all have the right to file a lawsuit and ask a jury of their fellow citizens to resolve their dispute.

The “kind of people who sue” are usually people who have suffered some sort of personal or family tragedy.  People who say that they aren’t the “kind of people who sue” are often simply people who have never had the misfortune to be injured by another’s negligence.  Until they have personal experience with unnecessary suffering or death, they may not realize the effects those events can have.  But when someone suffers a serious injury, or loses a loved one to negligence, the reasons people sue all of a sudden become very clear to them.  There is a normal human desire for justice, which in our society is achieved through the court system rather than through violence or other means.

The stigma attached to “people who sue” is a relatively recent phenomenon fueled  by large-scale public relations efforts by corporations, insurance companies, doctors’ organizations and other so-called “tort reformers.”  As a result of these well-financed efforts, the meaning of the word “plaintiff”–the person who brings a lawsuit–has changed from “injured victim” to “money-grubbing freeloader looking for a handout.”  And the term “trial lawyer” no longer means an advocate for the rights of injured victims, but is used as a pejorative term.

It’s a sad change, because it undermines the very foundations of our justice system.  People who have been injured through negligence have a right to seek compensation from the people and entities responsible.  And negligence suits have been responsible for many positive changes in our society: safer cars and consumer products, better medical practices, more secure schools and other facilities.  That’s a major motivation for many people who bring lawsuits–they want to make sure that no one else is injured or killed in the same way.

Most people would certainly hope never to become the “kind of people who sue.”  But when circumstances force someone to become a party to a lawsuit, it shouldn’t be something to be ashamed of.


Honoring the Value of Human Life

burning cigaretteMost of the newspaper headings describing the Supreme Judicial Court’s recent decision in Evans v. Lorillard Tobacco Co., a much-watched cigarette liability case, focused on the negative: that the Court vacated part of the judgment.   “Court Throws Out $81 Million in Damages Against Lorillard in Smoking Death Suit,” brags one business website.  “SJC Overturns Part of Award in Tobacco Case,” writes The Boston Globe.

Yet the much bigger news for personal injury victims and their families is that the SJC affirmed an award of compensatory damages totaling $35 million. As affirmed by the SJC, the award consisted of $25 million to Marie Evans’ estate for her conscious pain and suffering, and $10 million to her adult son, Willie, under the wrongful death statute.  Both amounts had been the subject of a remittitur by the trial judge from the jury’s award of $50 million to Mrs. Evans and $21 million to her son.

Even as reduced, the award is the largest compensatory award in a wrongful death case in Massachusetts, and validates the opinion of many plaintiffs’ lawyers that juries value suffering and death much more highly than insurance companies think.  And the fact that the SJC approved the judge’s decision shows that the Court, too, places a high value on human life.  So while the facts in Evans were extraordinary and even inflammatory–a cigarette company’s plan to entice African-American children to develop a smoking habit by giving them attractively packaged free samples–the Court is clearly willing to respect large awards as appropriate compensation for wrongful death and pain and suffering.  Nothing in the Court’s opinion or the applicable law suggests that such large recoveries are limited to extraordinary situations.

The rest of the SJC’s opinion is likewise encouraging to plaintiffs.  The Court rejected Lorillard’s various arguments that it should not be responsible for the addictive properties of its cigarettes and the consequent health effects.  The Court also gave short shrift to the defendant’s argument that Evans should have known that smoking caused lung cancer as far back as the 1960s, noting that the company’s CEO had, under oath in a congressional hearing, denied any connection as recently as 1994.

Even the Court’s reversal of the punitive damages award, which led most of the news stories, is hardly fatal to the plaintiffs: the court held that the issue of punitive damages must be retried because of confusion about whether impermissible legal theories may have contributed to the jury’s award.  Certainly the plaintiff would have preferred to hold his verdict, but a new trial on punitive damages, with liability and a $35 million compensatory award already established, is not the end of the world.


Injuries on Commercial Properties

snowy parking lotA recent Appeals Court decision serves as a reminder of the many factual issues that may become important for lawyers to consider when bringing a claim for injuries suffered on a commercial or business property.  Navarro v. Bond involved the intersection of two legal principles: the application of the worker’s compensation statutes to injuries suffered by an employee while at work, and the limited  responsibility of a commercial landlord for injuries suffered on its property.

The plaintiff in Navarro was injured when she fell in the icy parking lot of her workplace.  The premises were leased to her employer, Bond Brothers, Inc., and owned by a related family trust, Spring Realty.  The plaintiff’s employer, Bond Brothers, had always been responsible for general maintenance and snow removal at the property.  It received no payment from the nominal landlord, Spring Realty, for these services.  There was no evidence that Spring Realty retained any control over the leased property.

The worker’s compensation statute compensates employees for injuries suffered at work, regardless of whether the employer was negligent, but provides very limited recovery of damages compared to normal tort law.  When an employee receives worker’s comp, she cannot sue the employer for tort damages.  This law limited Ms. Navarro’s recovery unless she could show that some other person or entity was responsible.

The logical entity would be the owner of the property–but the liability of a commercial landlord is rather limited.  As the Navarro case reminds us, a commercial landlord is liable for injury on the leased property only if 1) it has a contractual obligation to repair or maintain the property, or 2) the injury occurs in a common area over which the landlord retains some measure of control.  Since Spring Realty had nothing to do with the maintenance or operation of the business property, it had no liability for injuries.

The question of the landlord’s liability in Navarro became important because the plaintiff could not recover tort damages from her employer, but it may also arise in other contexts.  When the tenant business is uninsured or poorly insured, it may be important to look for other responsible parties.  When the injury occurs in a common area such as a hallway or parking lot, it may be difficult to figure out whether the landlord, the tenant, or both, were responsible for taking care of that area.  The issue is more complicated where there are multiple business tenants.

These issues can make a relatively simple “slip and fall” case more complicated, as it may require investigation to learn about the relationships of the parties and their relative responsibilities.  The situation can become even more difficult where management companies, maintenance or cleaning contractors, and other third parties are involved.