JOEL BIEBER'S BLOG

The Legal Fee Tort Reform

     Big Business has created a cottage industry of raising money to take away victim's rights. Fortunately, many of these efforts have been beaten back. However, there is another method that is being employed. Certain legislators,Chamber of Commerce lobbyists, and Big Business interests have decided to go after lawyer fees. Not the fees that are charged to the businesses, as you would think that they would be concerned about. No, they are attacking the contingency fee in an attempt to limit the amount that a lawyer can charge in an injury case. Why do you think that they are not worried about the hourly rates they pay as a business?

     In Colorado, the movement was an attempt to reduce contingency fees as far down as 10% on certain recoveries.. Rather than trying to fight that back as a single piece of bad legislation, lawyers decided that the best way to attack it was to take the approach of "what's good for one is good for all". That meant that they added amendments to the legislation that would have included a limit on real estate commissions,a limit on CEO pay and an increase on penalties for defective construction damages. All of sudden, these other industries including Big Business decided that maybe this limitation was not such a good idea.

     For your consideration, I attach an editorial that was written in the Rocky Mountain News by Vincent Carroll. He takes lawyers and the idea of limitation to task.(Carroll article).  Since he is neither lawyer nor Big Business, he does not have a dog in the fight. He does suggest the obvious that this can limit access to recovery but he also addresses the image problem that it creates for lawyers in trying to defend what they earn.

     I say that he does not have a dog in the fight but he may find that it would effect him in finding representation, if such limitation had gone through. In certain states like Florida, there was a limitation enacted on legal fees on medical negligence cases. It was later struck down as unconstitutional but it did cause a period of time where victims had a hard time finding some representation. If the recovery was limited, then it served as a concern in taking the case because in many cases, the upfront costs that had to be borne by the lawyer outweighed the benefit of recovery. This same disincentive is occurring in Texas where certain caps have caused lawyers to stop handling medical negligence cases. Those that pushed the caps through, knew what they were doing because one way to limit responsibility is limit the access of the poor, to representation. As I have said in past blogs, the battle continues to wage and wrongdoers will continue to invent ways to circumvent their responsibilities.   

Justice Steven Agee's Confirmation

     This week I have been slack on my blogs because of casework commitments. However, a news story caught my attention regarding the Senate confirmation hearings for Justice Steven Agee. He currently sits on the Virginia Supreme Court and has been nominated to become a federal appeals Judge. Such an appointment requires US Senate confirmation.

     As expected, part of the confirmation hearings include examination of a candidate's club memberships. In this instance, Senator Benjamin L.Cardin (D-MD) questioned Justice Agee regarding his membership at The Shenandoah Club. Justice Agee was asked whether he knew that his club discriminated against African Americans when he joined in 1980. His response,"I can't recall if I had specific knowledge of that. Certainly, as time went on it seemed more likely than not that that occurred. After some period of time I resigned." This response was reported by the Media General News Service.

     When I read that response, it made me want to know the dates of the Justice's membership. Amazingly, he was a member from 1980 until 1987. The club was founded in 1893. Shortly after his resignation, the club changed its membership policies in 1988. His response would lead you to believe that all of a sudden, the membership discrimination just dawned on him. Maybe he never looked around the golf course or the dining room!

     It will be interesting to see if this has any bearing on this confirmation. For Virginia, it obviously had no impact. This questioning came during a 40 minute hearing for Agee. The Richmond based 4th Circuit Court of Appeals has jurisdiction covering South Carolina,North Carolina,Virginia and Maryland. It has the highest percentage of African-American population of any appeals court in the country. 

Lawsuit Quickhitters

     I regularly get emails and notifications of lawsuit results around the country. Some are interesting reading. Some are applicable to my practice and some just make me shake my head. Here's three that meet all that criteria.

     Jack Klugman of "Odd Couple" and "Quincy" fame has filed suit against NBC for failure to pay him profits.(Quincy suit)  Klugman alleges that all that nighttime television is showing him no profits. Apparently, the bean counters have somehow figured out that net profit means that alot of the money must be falling through the nets. That's why that's interesting reading. The old restaurateurs used to say, make sure a family member is sitting at the cash register.

     Story number 2. Walmart is trying to stop their old camera man. Apparently,(Camera story) Walmart originally hired a company to videotape its executives giving speeches including one of Sam Walton in 1991, saying that Hilary Clinton is "one of us". When Walmart decided to stop using the camera company, the company offered to sell these videos for several million dollars. Walmart, in true form, offered 500k because they didn't think that anyone would want them. Well, that's where Walmart underestimated and now they are trying to stop the madness.Youtube, here comes some interesting viewing. You'll get a kick out of this article.

     Finally,The US Supreme Court has refused to hear an appeal of a punitive damage 112M verdict against Exxon, relating radioactive contamination of a Louisiana property.(Wall Street Article) . This one caught my eye because Exxon's counsel, in their appeal brief, had recited that the Supreme Court should take up their appeal because  this would give an opportunity "to confirm for those Courts that have been unwilling to listen, that the Court meant what it said" when it ruled in the previous case of Phillip Morris v. Williams. By not agreeing to hear the appeal, the punitive damage verdict stands and the only thing that appears to be confirmed is Exxon's blatant disregard for the property of others.

The Lesson Of Scars

     Last week, I sat in a mediation that lasted about four hours. The mediator would go back and forth with the offers from each side. As such, my client and I sat and talked about different events that had occurred while the case had been pending. He pointed to his neck and showed me his scar from surgery. I could barely see it. He said that when he looks at it in the mirror, in the morning, it doesn't bother him. He knows that it's the reason that he has relief from his neck pain.

     That reminded me of a story I recently heard, regarding a son and father who stopped to fish. As the father was going around to get the poles out of the truck, the son pulled off his shirt and shoes and jumped in to take a quick swim. Unbeknown to them, an alligator was also there in the water, taking notice of the son. As the father looked up to see the son swimming out, he saw the alligator swimming toward his son.

     The father began frantically hollering to the son to swim back to shore. The son did just that but the alligator began closing on him. The father ran down to the shore and went to grab the son by the shoulders, just as the alligator grabbed the son by the legs. An immediate tug of war ensued with the strong jawed alligator threatening to take the boy under. However, the father would not let go and finally pulled the son from those jaws of death.

     The boy suffered injuries that took some time to resolve. Later, a local newspaper reporter wanted to do a story on the boy's rescue. He interviewed the boy and asked if he could take pictures of the scars on the boy's legs, from where the alligator had taken hold. The boy said yes, but quickly added that he wanted the reporter to also take pictures of the scars on his arms from the scratches that had been made from his father's fingernails. The boy said that, "every time I look at those scars on my arms, it reminds me that my dad just wouldn't let go".

     We all carry burdens in our lives. We all have scars, whether physical  or emotional scars. However, as this boy and my client acknowledged, some life experiences are reminders of where we've been and where we are today.             

Selection of Virginia Judges

     There is an interesting article posted in PilotOnline.com today, (Judicial Appointment Article) which discusses the impasse of the Virginia Assembly, in the appointment of Judges. Of course, since these appointments have a direct bearing on our practice, we watch with great interest to see who will be taking the bench.

     Judicial appointments face scrutiny because both political parties have some clout to block certain candidates. Currently, Republicans control the house and Representative Dave Albo is chairman of the Justice Committee. His counterpart in the Senate is Democrat Henry Marsh. This makeup helps describe why there is a hold up to certain appointments, which would allow Governor Kaine to make interim appointments.

     The impasse is certainly different from the legislature of years ago. I remember as a young impressionable legislative aide, I sat on a side bench of the 1982 General Assembly. At one point, debate had ended on a matter that I had admittedly taken a brief mental recess from. All of a sudden, several legislators including Republican Buster O'Brien of Virginia Beach, had left his legislative seat and was now sitting next to me on one of those side benches. I asked him what he was doing and he said that he was physically exhibiting a silent protest to the Judicial appointments that were being voted on. At that time, the Democrats far outnumbered the Republicans to the extent that Democrats just "rubberstamped" who they wanted as Judges. As such, Buster was not going to vote. Interestingly, as part of a full circle, he now sits as a Circuit Court Judge in Virginia Beach.

     Now, dial ahead to the current appointments. Times have changed. For instance, one General District Court Judge,Gene Woolard, who once practiced law with me, is being supported by Democrat Yvonne Miller. Republican Ken Stolle is supporting City Attorney Les Lilley. In this specific instance, they are both good men. Otherwise, Judge Woolard would not have been confirmed as a General District Court Judge and Les would not have served so long as City Attorney. Either way, the Commonwealth will win. However, it's sad that legislators can't seemingly work it out with good candidates. I'll be keeping my eye on all these appointments which last for six years, before reappointment, because there is a good chance that we will be trying cases in front of these new Judges.   

A Golden Corral Restaurant Note

     It's no secret that I like Golden Corral Restaurants. In fact, I have previously blogged on that personal joy. On my current television ads, I have placed, in the disclaimer, that I regularly eat at Golden Corral. I am required to put alot of information in those disclaimers, because the various states that I advertise all have certain advertising requirements that must be included in the ads. For that reason, I included, for my own humor, the Golden Corral note in all that small print.

     Noone at the office originally saw the Golden Corral fine print. Then, when they knew about it, they all chuckled because it certainly is consistent with my sense of humor. Plus, how can anyone not like the Golden!

     Well, on our website, we had someone email that they were bothered that I would put that in my ad. First, they noted that it had nothing to do with my advertisement. Second, they said that the fact that I ate at the Golden Corral would not influence them to call me. When you think about it, noone has ever told me that they call me because they were impressed with my chicken wing eating at the Golden.

     I thought this was an interesting web hit. What caused them to take their time to email about that fine print? In addition, I wonder if they really thought that the quick Golden Corral notation, on the screen for a minimal time, is really there to cause them to call me. Again, I can almost hear Andy Rooney saying on "60 Minutes", something like, "Sometimes I wonder why I wonder". I guess that it at least caused them to respond. With 20-30 lawyers advertising on TV every month, I start to believe that lawyer advertising has probably lost any impact.   

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The Tax Day Blog

     I had to chuckle as I rode to work. The radio was interviewing an IRS official about its website and filing information. The final addition to the discussion was the official stating that the IRS is here to help. I needed some soothing music after that.

     "Our Daily Bread" devotional had an interesting take on tax day. It started with a saying that "Contentment is not being satisfied with what you get but being satisfied with what you have". It went on to discuss "enoughness". On an April 15 blog, I know that we are all dealing with either filing issues or extension issues. Anyone not dealing with those choices probably has their head in the sand and a day of reckoning will follow. However, contentment is a whole lot more satisfying then a day of reckoning.

     These thoughts dovetailed with the story that my Sunday School teacher told this past week. An old farmer heard a crash outside and went out to find that his old donkey had fallen into the well. He spent a great deal of time trying to get the wailing donkey out, but came to the conclusion that the well was too deep. Since the donkey was old and the well was old, the farmer decided to just fill it up with dirt, which of course was to the detriment of the donkey.

     The farmer called another neighbor over and they began shoveling dirt into the well. The donkey kept hollering. All of a sudden, the donkey stopped making noise. The farmer and neighbor kept shoveling. Soon they heard a rustling in the well and looked down to find that the donkey was still there, but closer to the top. Every time they would throw a load of dirt in, the donkey would shake it off, and step on it. As the well filled up, the donkey climbed up on the last clump of dirt and climbed out of the well.

     Sometimes tax day makes it hard to find something positive. It's not easy to be content. However, if we can figure out a way to shake the dirt off and keep climbing, then we have taken a step toward that personal contentment..      

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A Plaxico Burress Dream

     The Virginian Pilot reported that Virginia Beach recognized New York Giant's receiver, Plexico Burress, with a special day and retirement of his jersey. The article recited his high school coach who said,"He's really connected all the dots. He never lost who he is".(Pilot Article)

     I've watched Burress with special interest because I had some interaction with him in Virginia Beach. I remember when he announced that he was going to attend Michigan State. Then, of course, I remember when the Pittsburgh Steelers drafted him. All those steps were part of his dream. I'm guessing a dream of a superbowl win.

     I also remember seeing some of his dream on one evening. It was at the Bruce Smith tournament in Virginia Beach. Bruce annually held this as a weekend fund raiser where he invited players to come play golf and be part of an entire weekend for fund raising purposes. Some of us at the firm would help with the activities including coordinating the players back and forth to the airport, getting memorabilia signed for the auction and getting each player their room keys and making sure they were shuttled back and forth to the events.

     On this particular year, we were at the last event in the main ball room. The auctioneer was about to begin the live auction events, which were always lively because they included the players bidding, who seemed as excited about signed sports items as everyone else. As I was standing off to the side, a seventeen year old Burress came walking by with his girlfriend. At that time, he was already known for his prolific high school achievements. He looked around at all the players, who numbered about 40-50 and I saw a wide eyed look as he took it all in. I walked up to him and introduced myself and said, "Someday, you'll be part of this and everyone will be paying for your autographed items". He smiled and said,"I hope so".

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My Experience With Charlton Heston

     When I awoke to read that movie icon, Charlton Heston, had passed away at age 83, I obviously remembered him for his great movie parts. Sure, maybe he didn't really make the Red Sea part but he was a believable Moses. As a kid, the first time that I saw Ben Hur, I was transported to a different time. Of course, when I saw him in Planet Of The Apes, I wondered how he went from wrestling on a chariot to wrestling with a primate. All of his tough guy parts made me excited when I learned that I was going to meet him at a political fundraiser.

     It was 1994 and he was coming to Norfolk, Virginia. If you made a certain level of contribution, you were promised to have your picture taken with Heston. I got to the group and got in line. Of course, I had already sent in my donation. From the edge of the room, he looked exactly as I expected with his chiseled face. Soon, someone gestured that it was my turn to stand next to Heston for my photo opportunity.

     I walked up to him and he reached out to shake my hand. I mumbled some unintelligible hello and took my cue to get ready for my photo, so that they could keep the line moving. As I turned to stand beside him, the photographer motioned that he had to make a film change. I said to Heston that,"I guess we need the photographer, if we want our picture taken." Heston looked at me and huffed and said, "No, the photographer needs us, if he wants to take the picture. "At that moment, I did believe that the man standing next to me was really capable of hurling the tablets with the ten commandments. He truly was larger than life.   

John Grisham And The Reading Of Books

     Recently, I bought and read John Grisham's "The Appeal". His previous offerings captivated me and then I got bored with a few of his recent writings. Since he advertised a return to his legal fiction origins, I thought this would be a return to something like "The Firm".

     If you go to BarnesandNoble.com, you can see some reviews from readers of the book. These reviews are unfiltered assessments that don't originate in some publishing house with an agenda of economics. One reviewer described the book as "bad guys don't always lose and writers can lose the edge that made them unique".  Another reader added that he found the story to be "completely outside the boundary of reasonableness".

     The thing about Grisham is that I don't think he really cares. I once read his description of how he writes a book. He said that he has taped the windows in his Charlottesville upstairs and that he goes up there, sits down and begins to write. Of course, his contract calls for a book a year. I guess this means that whether he has a story or not, it's time to turn it out.

     Because my life deals with law, whenever I read a law fiction book, I try to escape in the book rather than evaluate whether the story could really happen. At the end of this book, Grisham freely admits that he suspends certain premises because of the pursuit of fiction. My complaint is that it seemed to me that this was a book, where he jotted down certain political directions he wanted to take. That gave him a skeleton backdrop and then he filled it in with characters. To me, the characters seemed very undeveloped. Halfway through, I gave serious consideration to putting it down. I had made the financial and time committment already, so I kept plodding. I finished the book and went looking for something else. The Grisham book just wasn't much of a story nor a descriptive ride.

     In the genre of books, someone sent me a list of books that they thought that defense attorneys might enjoy. Since this blog turned out like a book review, I thought I'd sneak these titles in for your consideration. For those defense attorneys reading this, hope you'll let me know if you have any of these books in your library: "Basics of Cheating The Widow and Orphan" by U Lyon Sack, Esq.: Another book title, "Essentials of File Churning" 3rd ed. by Isenda Bigbills, Esq.;"How To Answer Discovery Without Saying Anything" by Professor Martina Neverturnover, Esq.