Attorney Find Blog

Last week, the California Supreme Court unanimously rejected a tobacco industry claim that the statute of limitations in tobacco limitations cases should start running when the plaintiff first becomes aware of the addiction. The argument wasn’t unfounded–it has roots in a 2002 9th U.S. Circuit Court of Appeals ruling that has stopped other similar cases over the past several years.

The California Supreme Court ruling opens the door for those and similar cases to go forward. The plaintiffs’ attorneys successfully argued that a plaintiff who discovered him or herself addicted to tobacco couldn’t reasonably be expected to guess the he or she might one day develop cancer or emphysema and file suit. In fact, such claims would likely be dismissed as frivolous, since evidence of any damages would be lacking.

The California Supreme Court ruling provides a green light for stalled tobacco litigation in California.

Those of you who practice bankruptcy law, or who have filed for bankruptcy protection, or who have simply taken the time to educate yourselves about the bankruptcy process have probably noticed a definite tendency in the mainstream media to mischaracterize the process and its outcome. For instance, despite the fact that numerous studies have indicated that, after the initial flood and then drop-off in bankruptcy filings before and after the October 2005 law change, there has been a steady increase in filings, newspaper headlines continue to scream “Bankruptcy filings have declined by more than 50%” and such.

And although most experts agree that while bankruptcy is more complicated, more time-consuming, and more expensive than it was before the “reform”, most data suggests that the actual impact in terms of qualifying for bankruptcy protection has been virtually non-existent–credit counseling agencies charged by the U.S. Trustee’s office with helping pre-bankruptcy candidates assess their options have indicated that fewer than 5% of them have any other realistic option.

Perhaps that’s not surprising in view of the size and power of the public relations machine controlled by the consumer credit industry–the industry that stands to gain the most is the average consumer in financial trouble believes that he can no longer file bankruptcy.

Even in view of all that, I was surprised to view a press release this morning that announced “Bankruptcy Won’t Stop Foreclosure for Troubled Borrowers”. A careful reading of the article reveals that the headline is ever-so-cautiously balanced on the obvious fact that bankruptcy won’t allow a homeowner to simply keep his home and stop making payments on it forever…a far cry from “won’t stop foreclosure”. Unfortunately, many consumers won’t read the article carefully, and will only absorb the misleading headline that gives the false impression that their options are more limited than they might have believed.

Mandatory automobile insurance laws became the norm in the 1950s, but that development was quickly followed by new complications:  clogged courtrooms, disparate awards for similar injuries, and delays in compensation for accident victims in need of timely medical care.  A handful of states thought they’d found the solution with no-fault insurance, and Florida was one of the first.  Florida’s PIP (personal injury protection) system took effect in 1972.

Now, that law is set to “sundown”, or automatically expire, if the legislature doesn’t act to renew it, and that renewal is strongly opposed by many who say the PIP system is too riddled with fraud to work effectively.  One fraud examiner indicated that 40% of his insurance fraud caseload sprung from PIP claims.  Lawmakers made an attempt at addressing the fraud issue in legislation passed last year, but Governor Jeb Bush vetoed the law, saying that it didn’t go far enough.

Some health officials have suggested that an end to PIP would create a crisis for the state’s public hospitals, which would provide the only treatment option for many uninsured accident victims without the no-fault coverage.   Consumers, like legislators, are divided, but it’s an issue that can’t be ignored.  Change is coming no later than October, when the existing law will pass out of force whether or not there is replacement legislation in place.

Last spring, the Illinois legislature received a report based on a year-long pilot program designed to test a different procedure for police line-ups and photo identifications. Instead of including a suspect in a traditional line-up or a photo array, a witness would be shown photographs, or live participants, sequentially. Researchers generally agreed that sequential exposure should result in a smaller number of false identifications, both because participants would study each candidate more carefully and because comparative evaluation (wherein a witness compared photographs or participants to one another and would be more likely to choose the “closest” one) would be avoided.

However, the report to the legislature included surprising findings, and those findings, the NACDL says, are being used to fuel resistance to line-up procedure reform across the country. Thus, the organization wants access to the data used to support the reports conclusions.

In response to the skyrocketing number of subprime mortgage foreclosures across the country, the U.S. Senate Committee on Banking, Housing, and Urban Affairs held hearings this week on the issue of predatory mortgage lending practices. Senator Christopher J. Dodd said in his introductory statement that “this important source of wealth [home ownership] for so many American families is under a grave threat from predatory, abusive, and irresponsible lending practices undertaken by too many subprime lenders.”

The Committee heard or gathered written testimony from representatives of the National Association of Mortgage Brokers, the Mortgage Bankers Association, AARP, Rainbow PUSH Coalition, and the Center for Responsible Lending.

The Center for Responsible Lending has projected that foreclosures on subprime loans will soon reach 20%, and several consumer advocacy organizations have pointed out that these loans are made disproportionately to minority applicants, without regard to credit history or ability to qualify for more favorable loans.

Civil litigation serves a useful purpose in society, and without it consumers would lack a lot of important protections.  You aren’t likely to find any calls for tort reform or punitive damage caps here.  But today I’m compelled to say:  IS NOTHING SACRED?

On January 31, litigation commenced among the heirs of deceased Grateful Dead frontman Jerry Garcia.  Grateful Dead fans are quite possibly both the largest source and the largest consumer base for bootleg audio in the world.  The Grateful Dead made it easy for them for a lot of years, sometimes even providing taping areas at their shows so that anyone who wanted to steal their music could do so easily and with reasonably good sound quality.

Deborah Koons Garcia is apparently suing to gain control over unpublished tapes of her late husband’s musical performances.  She wants to restore those tapes, but other members of the limited liability corporation formed by Garcia’s heirs are holding up the process.  Deborah’s lawsuit is just the latest in a round of legal squabbling that’s included other heirs suing to keep the corporation intact and Garcia’s 19 year old daughter suing Deborah for alleged financial mismanagement.

Public opinion on the culture surrounding the Grateful Dead during the band’s glory days was always dramatically split.  To some it was a safe haven of love and acceptance, a return to a simpler life in which people lived off what they created with their hands and offered food to a hungry stranger.  To others, it was a subculture built around drug use and irresponsibility.   More than a decade after Jerry Garcia’s death, some might have expected a peaceful, nurturing legacy and others a generation of social dropouts ill equipped to move forward.  Some might have expected the phenomenon to fade away and be all but forgotten.  I’m sure none of us could have expected a legacy of corporate greed.

It’s become fairly routine for prospective employers to check an applicant’s credit report as part of the screening process, but recently some citizens’ groups have begun to protest the practice, pointing out that it limits the ability of people with past financial problems to make positive changes, and often on grounds that have nothing to do with the jobs they’ve applied for. Other consumer advocates point to studies indicating that at least 25% of credit reports contain serious errors.

A 2004 survey indicated that about 20% of employers conducted credit checks before extending any offer of employment, but other data indicates that the number has increased dramatically in the short time since the survey was conducted.

Now, Washington State Senator Steve Hobbs (D, Lake Stevens) has introduced a bill that would prohibit employers from using credit reports as a screening tool except in specific industries, like financial services and public safety.

Today’s Christian Science Monitor today reviews two new books about the United States Supreme Court that go beyond the decisions rendered by the court to the politics and planning that led to each of the modern appointments to the court (Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court, by Jan Crawford Greenburg) and to a study of the impact of the temperments, personalities, and pairings of justices on the fabric of the court (The Supreme Court: The Personalities and Rivalries that Defined America, by Jeffrey Rosen).

Litigation regarding defense requests for the source code for the Intoxilyzer 5000 stalled hundreds of Florida DUI cases last year, but the complications stemming from that case aren’t over–at least for one lawyer in the state’s attorney’s office. Don Hartery was misdemeanor chief for Manatee last year when he reportedly sent a letter to Judge Mark Singer attempting to influence the judge to hold a hearing that might benefit the state’s position.

Attorneys and parties involved in pending cases are not allowed to communicate with the judge about the case except under specific circumstances: in court, in written documents also provided to opposing counsel, or in conferences where both sides are present.

The Florida Bar has referred an ethics complaint to the state Supreme Court.

At the Golden Globes, Sacha Cohen thanked every American who hadn’t sued him, but that’s a shrinking group. The allegations in lawsuits surrounding the internationally successful Borat movie primarily relate to people who appeared in the movie claiming that they were misled into signing releases.

Kathie Martin, owner of an Alabama etiquette school, claims she was told her class was being filmed for a television documentary. Two fraternity members claim they were plied with alcohol and then told that the movie wouldn’t be shown in the United States before they signed their releases.

We don’t know exactly what these reluctant film stars were told, and we don’t know exactly what the releases they signed said. But reality television (and now, reality films) hinge on the producers’ ability to mislead participants. The element of surprise is frequently a key factor in the production of a reality tv show, whether it be a tabloid talk show where a woman comes on thinking she’s getting a makeover, only to learn that her sister is sleeping with her husband, or it’s an etiquette teacher who thinks she’s being filmed for a documentary when the footage will really be used in a comedy.

To that end, the releases signed in conjunction with such productions generally contain something I’ll call a “consent to mislead” clause. It’s basically a clause that says that they may have lied to you about their plans for the footage or the purpose of your interview or interaction or game or test or audition or whatever it is that you’re doing, and that’s okay with you, and they can use the footage however they choose.

Why would anyone sign such an agreement? It’s a fair question, but there are fair answers. The producers of such shows have logical explanations for those clauses, and some of them are valid. The premises of many reality-based shows depend upon less than full disclosure in advance–otherwise, the spontanaiety that such shows are selling to their audiences would be lost. But how often do those reassurances come with soothing words like, “Oh, that doesn’t really apply to you–that’s there for….”

I know it does at least some of the time. I’ve heard it with my own ears. Do those misrepresentations outside the four corners of the agreement impact the validity of the release? That’s a complicated legal question. Generally speaking, nothing outside the document itself is considered binding–the contract is the contract. However, in some areas of law there are exceptions specifically for those occasions when someone in a position of greater knowledge and power has used those misrepresentations specifically for the purpose of closing the deal.

I don’t know what to expect from the Borat lawsuits, but I think they’re getting attention for all the wrong reasons. The legal precedent regarding the ability of reality show participants to sue because they’d been misled could impact the whole structure of reality programming. That creates a powerful incentive for this company to fight tooth and nail to preserve its right to mislead these participants.