Sunday, June 1, 2014

“THE COURT: Very well. We’ll see how that works.”

From Kate Sumbler
When uttered by a judge, the phrase: "Very well.  We'll see how that works." is a warning not be be ignored.  When a certain judicial schadenfreude is implied by those words, it is time to reevaluate one's strategy.  Reevaluation was not on the mind of one Illinois prosecutor who refused to dismiss his case despite that he had no witnesses and was certain to lose.  Instead, the prosecutor permitted a jury to be sworn, having notified the judge that ". . . the State will not be participating in the trial. I wanted to let you know that."  The defense then moved for a directed verdict, asking the court to enter findings of not guilty to the charges, which the court did. 

You might ask, why would the prosecutor want to try a case with no evidence?  Fair question.  It would not be going out on a limb to infer that the prosecutor felt that he had been treated unfairly. The prosecutor had asked for a continuance to try to bring forth the witnesses at a later date.  The judge denied the prosecutor's motion, having granted continuances previously in the case.  Rather than dismiss the case so that it could be retried later, the prosecutor, wanting to challenge the judge's ruling, believed that he could proceed through trial not really participating, and appeal the judge's denial of the motion to continue in hopes of a future retrial.  In its per curiam opinion, which is a voice used by a court as a whole, the United States Supreme Court reminded the prosecutor of a bedrock day 1 rule of law:

There are few if any rules of criminal procedure clearer than the rule that “jeopardy attaches 
when the jury is empaneled and sworn.”

Because the jury had been sworn "jeopardy had attached," meaning that for purposes of "double jeopardy" the defendant had been tried, and could not be tried again for the same offenses. Therefore, the prosecutor lost his appeal, and the defendant's acquittal will remain intact.  We could say that the prosecutor was successful in not trying to try the defendant, but unsuccessful in not trying the defendant.  

Thursday, October 31, 2013


If you have made it this far (i.e. past the title), it is fair to assume that you are in the unfortunate position of needing to know something about your automobile insurance policy.  People hate fine print (hereinafter referred to as "fine print").  People also do not use fine print.  Unlike people, insurance companies have a fetish for fine print, and you will find fine print in any document provided to you by one.  Here is a common approach by an insurance company:

Step 1:  Write insurance policies using fine print and other techniques to permit the withholding of expected benefits.  

Step 2:  Sell those insurance policies using confident, reassuring slogans with a personal touch. Examples are everywhere: (   

Photo by Peds
Fine print matters.  In a recent case my client was walking across a street in a crosswalk and was struck by a minivan.  She had bad injuries.  She had torn ligaments in her knee and needed surgery. She also did not have health insurance.  For my client to get the surgery she needed it was very important that we identify other coverage. Fortunately, we were able to find applicable Personal Injury Protection coverage in the minivan driver's insurance policy.  That policy clearly provided for Personal Injury Protection benefits covering my client as a pedestrian for up to $35,000 of medical treatment. This wasn't money for her to keep, it went directly to her medical providers to pay for her important medical treatment.  My client also needed other benefits that we believed were provided by the insurance policy.  First, she needed "essential services," which would include payment to the people that were helping her buy groceries and get around.  Second, she needed income loss benefits for income loss caused by the accident.  At first, the insurance company relied on fine print to deny payment of "essential services."  It argued that the services were being provided by members of her household and so it didn't have to pay.  The insurance company also said that while it would pay for some income loss, it refused to consider other employer-provided benefits as income, such as her employer-provided health insurance benefits.  Fortunately, our interpretation of the insurance policy won out, and the insurance company did the right thing.

Many educated people are remarkable uninformed about their own insurance policies. People dislike the topic so much that they rarely read their policies until they need them, which is of course too late.  If you want to do yourself one favor with respect to auto insurance, take a look at your policy and make sure that you have Personal Injury Protection benefits.  It is the cheapest health insurance you will ever buy. 

Tuesday, October 8, 2013


Photo by 401(k) 2012
In a recent case the Washington Court of Appeals discussed a very important rule regarding suing out-of-state defendants.  This case is interesting for many reasons, not the least of which that it discusses a rule that can cost a plaintiff a lot of money.  Some background: There is a law in Washington that says that out-of-state defendants "submit" to jurisdiction in Washington State if they do certain things.  This kind of jurisdiction is called "personal jurisdiction." Personal jurisdiction is necessary for a Washington court to have authority over the defendant, for example, to make the defendant pay the plaintiff money.  An out-of-state defendant submits to personal jurisdiction in Washington if the lawsuit against the defendant arises from the defendant's transaction of business within Washington, or from a tort the defendant committed in Washington.  If an out-of-state defendant drives into Washington and causes an auto accident that defendant has submitted to personal jurisdiction in Washington, and the injured person can file a lawsuit against the defendant in Washington.  Within this personal jurisdiction law is the following provision:

"(5) In the event the defendant is personal served outside the state on causes of action enumerated in this section and prevails in the action, there may be taxed and allowed to the defendant as part of the costs of defending the action a reasonable amount to be fixed by the court as attorneys' fees."

Washington judges have interpreted this provision to allow them to award a prevailing defendant their added costs of litigating in Washington.  Washington's law on personal jurisdiction represents a balancing of values.  Washington didn't want to leave its residents who sustained damages caused by an out-of-state defendant without a place to sue in their home state, but Washington also didn't want its residents filing suit against out-of-state defendants who hadn't done anything that connected them to Washington.  This is because of the expense of defending an out-of-state lawsuit, even a meritless lawsuit.  The painful punchline of the court is stated simply and as follows: "Because Deltek prevails in this action, we award attorney fees and costs to Deltek, limited to the amount necessary to compensate it for any additional costs of defending in Washington." Not only did the plaintiff not prevail against Deltek, it was ordered to pay Deltek money.

Tuesday, March 12, 2013


Photo by David Holt
I am trying something new!  A "book review." For my first review I've chosen The Last Hundred Days by Patrick McGuinness.  Here are links to the Seattle Library's website, to the King County Library's website, and to Amazon to purchase it.  To let you know where I am going, I am not going to try to summarize the book in a serious way, instead, I am going to write about 200 words or so letting you know whether I think your time would be well spent in reading this book.

In December of 1989 the Romanian Revolution resulted in the ending of the regime of Nicolae Ceausescu. The central character and narrator in TLHD is an unnamed British man that I imagine to be in his early 20s.  He gets a job teaching at a university in Bucharest, but from there, instead of learning about his teaching and his classes, we learn what the narrator learns about Bucharest, the Ceausescu regime, and what it is like to live in a society characterized by constant surveillance and that is totally saturated by the State.  For me, the most memorable passages come early in the book:

"For all the grotesqueness and brutality, it was normality that defined our relations: the human capacity to accommodate ourselves to our conditions, not the duplicity and corruption that underpinned them.  This was also our greatest drawback -- the routinisation of want, sorrow, repression, until they became invisible, until they numbed you even to atrocity."  

This is not a book overly laden with observations; there is a great story here, and it is through the characters that the reader learns about the Ceausescu regime, and police states generally.  I really enjoyed this book and found it worthwhile.    

Monday, February 11, 2013


If you're like me, you first encountered the courtroom and jury trials by watching movies, or through television shows. One of the most popular television shows about trials is Law & Order.  Law & Order is about criminal trials; when a person is charged with a crime, a criminal defendant has a right to a trial by jury.  What many people don't know or don't fully realize is that as a general rule, plaintiffs in civil cases have a right to a jury trial too!  Here is the text of the 7th Amendment to the United States Constitution: "In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law."  Washington State's constitution includes something similar: "The right of trial by jury shall remain inviolate..."  The constitutional right to a jury trial intersects with a big topic in personal injury law, namely, the issue of tort reform, or damages caps.  A damages cap is a limit set by the state on what juries can award plaintiffs in personal injury cases.  This means that no matter what the evidence is in a case, or what the jury thinks that a person's case is worth, the decision is taken out of the jury's hands by the state.  As you will expect, I do not agree with damages caps, and I think that juries should get to rule on the evidence as they see it.  Here's a video of Iowa Rep. Bruce Braley dressing down Lisa Rickard of the Chamber's Institute for Legal Reform on damages caps.

Wednesday, January 16, 2013


Photo by Shockmotion
Miami lawyer Larry McGuinness has filed a class action lawsuit on behalf of the 16,000 fans who bought tickets to see the now infamous November 29, 2012 San Antonio Spurs v. Miami Heat game.  You might remember that Spurs Coach Gregg Popovich chose to rest his star players--Parker, Tim Duncan and Manu Ginobli--and that they didn't play in this game.  Larry's theory is that the Spurs deceived fans by failing to advise the NBA and the fans that its star players were not going to be playing in the game. Larry has alleged that the Spurs violated Florida's Deceptive and Unfair Trade Practices Act.  To prove his claim, Larry has to prove that the Spurs committed an unfair practice that caused actual damages to the class members.  Part of Larry's theory of damages is that the class members paid more per ticket to see the Spurs than they would have paid to see the quality of team that showed up on November 29, 2012, i.e., the Spurs without their best players.

Honestly, I don't hate this lawsuit.  I think it is interesting.  Lots of slippery slope questions come to mind though, for example, if Larry wins, will there be a notice requirement for teams to report injuries to fans and to the NBA?  Could this lawsuit stop pre-draft tanking?  Here is a link to Larry's complaint.  

Monday, December 31, 2012


Photo by Padams
Delay.  We are used to delays.  Delays are frustrating, they show up and impede our ability to get where we are going, or to do what we want to do.  However, delays are also, normally, unrelated to our specific, individual goals and plans.  They are normally a biproduct of some larger operation, take, for instance, a traffic light.  Traffic lights delay our travel, but municipalities do not operate traffic lights to cause us harm, when traffic lights operate properly they contribute to an organized and safe flow of traffic.  So, we tolerate the individual delays caused by traffic lights because we understand their function. Unlike this acceptable kind of delay, the delays caused by insurance companies are tactics, they are weapons designed to break your resolve, and to otherwise advance the insurance company's interests ahead of your own.

Insurance companies delay everything.  They delay responding to reports of claims, fairly analyzing claims, providing the basis for their decisions, and, if an insurance company becomes involved in a lawsuit, things get even worse.  Then, claimants encounter an entire new package of delays, nearly all of them having to do with discovery, and honest, fair settlement negotiations.  For this, and for many other reasons, Washington has attempted to level the playing field to give claimants a fair chance through what is called the Insurance Fair Conduct Act.  This law works in the favor of individuals, to give individuals protected rights against insurance companies.  Some of these rights of individuals relate to the goal of protecting individuals from unreasonable delays caused by insurance companies.  Here is an example of a specific protection for individuals, to help individuals in the face of insurance company delay:

"The following are hereby defined as unfair methods of competition and unfair or deceptive acts or practices of the insurer in the business of insurance, specifically applicable to the settlement of claims:

(16) Failing to adopt and implement reasonable standards for the processing and payment of claims after the obligation to pay has been established....[P]rocedures which are not designed to deliver a check or draft to the payee in payment of a settled claim within fifteen business days after receipt by the insurer or its attorney of properly executed releases or other settlement documents are not acceptable.  Where the insurer is obligated to furnish an appropriate release or settlement document to a claimant, it must do so within twenty working days after a settlement has been reached."

WAC 284-30-330(16).  What this means - in part - is that insurance companies enter a world of pain if they settle claims, and then withhold the settlement funds, or the settlement documents following a settlement.  Of course, just because a specific practice is prohibited, doesn't meant that an insurance company won't try to get away with doing it.  Delay in providing settlements funds, or settlement documents, is incredible frustrating.  For many clients, getting the settlement funds promptly is important, especially if the client is facing financial difficulties.  At the end of a case, clients often feel like they have been through a lot, and that they have jumped through hoop after hoop in order to met all of the obligations that are part of the claims process. For these clients, it is incredibly frustrating to call their personal injury lawyer, to ask about the settlement funds, and to find out that the insurance company is playing games with the funds.  The key is to anticipate the headaches caused by the delay of settlement funds and settlement documents before these delay tactics begin.  Many tools are available to attorneys to do this, including, to build requirements and sanctions into the initial settlement agreement at the time settlement is reached, to create the proper incentives for the insurance company to behave reasonably.