Might the corporate world begin to recognize the problem with mandatory binding arbitration?
For years folks who represent individuals vis-a-vis corporations have bewailed the evils of mandatory binding arbitration procedures being required by consumer and employment contracts.
Buried in the fine print of an employee handbook, health insurance plan, credit card billing insert, or franchise agreement, binding mandatory arbitration clauses eliminate a consumer’s access to the courts, and force them into a costly arbitration, a private legal system that favors corporations.
Now the corporations may begin to see the light, at least if they listen to former Georgian Newt Gingrich. According to the former Speaker of the U. S. House of Representatives, the proposed Employee Free Choice Act would subject employers to mandatory binding arbitration before government bureaucrats.
Not surprisingly, Newt finds a problem with the idea that once a worksite is unionized through the elimination of the secret ballot, if the employer and union don’t agree to terms in just over three months, a federally appointed arbitrator would impose wages, benefits, hours of work, and other terms and conditions of employment on both the employees and employer.
I'm all for mediation and arbitration to resolve conflicts out of court, so long as participation is voluntary. But to arbitrarily deprive folks of the right to vindicate rights in court, if necessary, is a practice subject to extreme abuse.
By the way, for all the folks eagerly awaiting the time to buy a car, when I traded cars recently the guy at the dealership stuck an arbitration agreement in front of me along with all the other array of papers to sign. I just politely told him no on that one, and handed it back. Refusal to sign the arbitration agreement did not make one bit of difference in concluding the transaction on the agreed terms.
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Cell phone and text messaging distractions in accident litigation
When cell phones and then text messaging came along, a lot of folks just figured they could drive as safely talking on a cell phone as talking to a passenger. I was one of them. A couple of years ago we began to see reports of studies showing that driving while talking on a cell phone was as dangerous as driving drunk and that text messaging while driving is an even bigger distraction.
The recent train wreck in the LA area that killed 25 and injured 130 occurred when the train engineer missed a signal light while text messaging with teenage train enthusiasts. This may be the consciousness raising event that leads to changes in laws and enforcement practices comparable to what we saw a quarter century ago about driving while intoxicated.
Current state laws on this emerging topic include:
* Cell phones: California, Connecticut, New Jersey, New York and Washington, the District of Columbia and the Virgin Islands have banned driving while talking on handheld cell phones.
* Text Messaging: Alaska, Louisiana, Minnesota, New Jersey and Washington have a text messaging ban for all drivers.
* New Drivers: 17 states and the District of Columbia restrict all cell phone use by novice drivers.
* School Bus Drivers: In 16 states and DC, school bus drivers are barred from all cell phone use when passengers are present, except for in emergencies.
* Other rules: Some cities, such as Phoenix and Detroit, have cell phone laws, but nine states have preemption laws that prohibit local jurisdictions from enacting restrictions. Utah and New Hampshire treat cell phone use as a larger distracted driving issue.
My guess is that legislators around the country will soon pass more laws requiring use of hands free devices when talking on cell phones while driving and banning text messaging while driving.
In auto and truck accident litigation, we have become diligent about discovery of cell phone and text messaging records. With increased sophistication about electronic discovery, this will be an an even more important factor in accident litigation.
There are at least three potential uses of cell and text evidence:
1. The defendant's cell phone and text usage while driving may be considered "conscious indifference to consequences" sufficient to support an award of punitive damages, similar to drunk driving.
2. The plaintiff's cell phone usage at the time of the incident may be used as comparative negligence evidence to reduce or eliminate a damages award.
3. If the evidence reveals that a defendant driver was communicating with an employer, or to a customer on the employer's business, then the employer and its insurance policy may be drawn into the case.
Governor vetoes raises for judges and DA's
What he did not say is that the study he commissioned compared judicial salaries with base salaries of a narrow slice of in-house corporate counsel, excluding bonuses, stock options, etc. Perhaps the Governor is too busy to recognize the methodological flaw in the study, and therefore is just seriously misinformed.
Judges with whom I have talked in recent months had expressed concern that there was little or no hope for raises as long as Governor Perdue is in office. Some have speculated that one example of a judge in the Governor's home circuit who retired due to apparently fatal cancer, but then went into remission and became very active as a Senior Judge, may have colored the Governor's thinking about the entire judiciary.
I have been concerned for some time about the crisis in judicial compensation. Of course it is always possible to get a government lawyer to accept a Superior Court appointment, and it isn't too hard to get a small town general practice lawyer to do so, because the judicial pay is relatively attractive in that setting. However in the large metro counties, it is rare for lawyers in a successful private practice to even consider becoming judges. Many -- though not all -- of those who do appear to have substantial assets, a spouse in a highly compensated field, or both. That is the economic reality in light of the crisis in judicial compensation, whereby both state and federal judges are paid on par with a first or second year associate in a large law firm. The fact remains that new graduates straight out of law school are getting starting salaries at large law firms on par with Supeior Court judges with decades of experience making critically important decisions about the lives, property and families of Georgia citizens.
While there are excellent examples of Assistant District Attorneys and Assistant Attorneys General becoming excellent judges, the judicial system loses is the perspective of lawyers who have spent decades practicing law and litigating cases in the private sector. It is important to pay judges enough that private practice lawyers in their prime years can afford to go on the bench and still send their kids to college. While judicial salaries are attractive to government lawyers and less successful private practitioners with political connections, and do not deter those who are independently wealthy, reasonably successful middle class lawyers in private practice, and with families to support, simply cannot afford the pay cut. With the crisis in judicial compensation, it is amazing that we have as many good judges as we do.
Even when a seasoned private practice lawyer with an excellent professional reputation does go through the nomination process, the tendency of Governors of both parties has been to pick government lawyers and political figures over seasoned private practice litigators, so the reaction of many who could afford the pay cut is, "why bother?" I have seen friends who would have been stellar judges passed over in favor of young government lawyers who are fine, but have negligible private practice experience.
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New Advance Directive form combines living will and health care power of attorney
Revenue shortfall & increased truck traffic may force more toll roads in Georgia
I have written several times this year about proposals for toll lanes for trucks on metro Atlanta interstate highways. An article this week shows another reason why this may become a necessity.
The Georgia Department of Transportation expects to spend $160 billion on road construction projects between 2005 and 2035. But revenues from the motor fuel tax that funds road improvement are projected to bring in only $86 billion during the same period. That leaves a $74 billion funding gap. In addition, federal funding for highway construction has declined sharply in real terms because the federal motor fuel tax is set at 18.4 cents per gallon and is not indexed to inflation, Studstill told the more than 300-hundred attendees at the event. “This shortfall could result in a complete drawdown of the Federal Highway Trust Fund in 2009,” Studstill said. If this occurred, federal highway funds would be exhausted in three years. That leaves a $74 billion funding gap for Georgia roads.
At the same time, increasing road construction costs, population growth and more truck traffic through the state and from the booming port of Savannah increasing pressure on Georgia’s roads.
Three fiscal solutions have been proposed. One is project-specific Special Purpose Local Option Sales Tax, or SPLOST, on a statewide or regional basis. Another is a statewide 1% sales tax to replace the fuel tax. The official estimate is that this would generate $1.5 billion per year, compared with $850 million from the fuel tax.
The third approach would involve public-private partnerships such as toll roads. Georgia law allows GDOT to partner with private or corporate businesses to help finance, design, construct, operate and/or maintain transportation projects. Four are under now consideration in Georgia.
There is also the possibility of rail or other transit relieving commuter pressure on metro Atlanta expressways, while we add another 2 million or more people in the next 25 years. Transit makes good sense in densely populated areas, and the area inside I-285 is rapidly becoming a much more densely packed urban environment.
As with moth things, there are no easy answers. The tough choices are seldom if ever between good and bad, but between good and good, and between bad and bad. My hunch is that the federal, state and local government officials will incrementally cobble together some imperfect combination of all these approaches, but we will stay perpetually behind the growth curve until something -- either good (e.g., fantastic new energy technology, etc. spurring stronger economic growth) or bad (environmental, demographic and/or economic collapse) -- causes a dramatic discontinuity in our current patterns.
Continue Reading Questions & comments 0"Super Lawyer" listing still OK in Georgia
However, the Fulton County Daily Report published an article on August 11th reporting an analysis to the effect that, while Georgia’s ethics rules contain proscriptions against comparative advertisements and ads that create unwarranted expectations, the language in Georgia is more permissive than that found in New Jersey’s ethics rules. The New Jersey rule prohibits as false and misleading any advertisement that "compares the lawyer’s services with other lawyers’ services." Under Rule 7.1(a)(3) of the Georgia Rules of Professional Conduct, the rule against comparisons does not apply if the comparison "can be factually substantiated."
The "Super Lawyers," "Legal Elite," and "Preeminent Lawyers" lists are all based upon periodic surveys of our peers in the legal profession, and cannot be purchased. While the methodology is certainly not perfect, neither is it meaningless or factually unsubstantiated. Therefore, we will continue to include those designations on the web site.
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New Texas laws may deter some drunk driving
Two new Texas laws, backed by Mothers Against Drunk Driving (MADD) may deserve consideration in Georgia.
One new Texas law requires that if a driver is convicted of drunk driving with a blood alcohol level over .15, an ignition interlock device must be installed in their car. The convicted drunk driver will have to breathe in a breathalyzer tube before attempting to start the vehicle. If there is a measurable amount of blood alcohol, the car won't start. According to Mothers Against Drunk Driving (MADD), ignition interlock devices reduce repeat DWI offenses by between 50 and 90 percent while the devices are in place.
Another alcohol-related bill will create a six-month driver's license suspension for anyone convicted of providing alcohol to a minor, and doubles to a year for a second conviction.
Proposals for more "tort reform" in 2006
The Fulton County Daily Report (subscription required, $) published an article on 4/20/05, reporting that the tort reform lobby isn't finished in Georgia. According to the article, there are plans to come back in 2006 with proposals to limit contingent attorney fees with some sort of sliding scale, and to make "collateral sources" (payments that the plaintiff received from her own insurance company) admissible in evidence.
Arbitrary limits on contingent attorney fees sound consumer-friendly to the uninformed at first blush. However, the intent is to make it economically impossible for attorneys to handle big, complex injury cases, and thereby deprive injury victims of competent representation. Lawyers representing plaintiffs in complex tort cases -- especially products liability and medical malpractice cases -- generally have to devote hundreds of hours of their time with substantial risk of never getting paid, and spend $50,000 to $100,000 or more of their own money on expenses with no chance of repayment if they lose. That is a significant entrepreneurial risk that cannot be taken without the hope of a corresponding significant profit if the case is successful. If contingent attorney fees are capped at a level that makes that investment of time and money prohibitive, trial lawyers will not take those cases, but will migrate to other kinds of legal work, and injury victims will go unrepresented. But of course that is the goal of those who promote such ideas.
The tort reformers claim that the "collateral source rule" under which payments to or on behalf of the injury victim by her own insurer or other sources promote a "double recovery." The basis of the rule is the highly prejudicial effect on a jury of learning that the plaintiff has already received some money, or that bills have already been paid. Proponents of changing the rule disregard the fact that the victim has generally exercised the prudence to purchase insurance, the benefits of which flow from contract rights.
A big problem with both of these proposals is that they are almost certainly unconstitutional. Unfortunately, some of those who call most loudly for "tort reform" worry about the constitution only when their own rights are impacted.
- Contingent fee caps. Section 10 of the U. S. Constitution provides: "No State shall . . . pass any . . . Law impairing the Obligation of Contracts . . . ." This is simply a matter of imposing wage and price controls in order to arbitrarily deny injury victims the right of competent legal representation by fixing unreasonably low fees for services rendered by attorneys. Moreover, to limit the fees to which a plaintiff can contract in order to obtain competent, vigorous representation, without also placing a low cap on the fees a manufacturer or insurance company can agree to pay its law firms, would be a violation of Equal Protection under both state and federal constitutions.
- Collateral Source Rule. In 1987, the legislature passed a "tort reform" bill that included admissibility of collateral sources in evidence. The Supreme Court held it unconstitutional. In the case of Denton v. Con-Way Southern Exp., Inc., 261 Ga. 41, 402 S.E.2d 269 (1991), the Supreme Court of Georgia held that provision unconstitutional under the Equal Protection provision of the Georgia Constitution. It is a violation of Equal Protection to inform the jury of the plaintiff's medical or disability insurance without also informing the jury of the defendant's liability insurance. What's sauce for the goose is sauce for the gander.
Conservative. strict construction adherence to the Constitution would bar both of these "tort reform" proposals.
Continue Reading Questions & comments 1What is the net impact of caps on noneconomic damages?
According to an article in the New York Times on 3/6/05, lawyers in states with caps on noneconomic damages have been largely successful in recasting damages to fit the available categories. The article is titled "Go Ahead. Test a Lawyer's Ingenuity. Try to Limit Damages." It cites a new study by Catherine M. Sharkey, a law professor at Columbia, to be published in the New York University Law Review in May. Prof. Sharkey analyzed jury verdicts in 22 states in 1992, 1996 and 2001. It did not consider cases settled out of court. It found that the median compensatory award in states with caps on damages was $324,000, compared with $387,000 elsewhere - figures that Professor Sharkey found were roughly equivalent after the data was adjusted for variables like the kind and number of plaintiffs and defendants, the percentages of local doctors and lawyers, and jurors' wealth and ages.
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