Newsletter, Winter, 1997-98

Proposition 213:  Another Update

This is the Proposition which became law on November 5, 1996.  I have been chronicling here in these newsletters various developments concerning the new law.  This is the proposition which basically bars the recovery of "noneconomic"---or pain and suffering type---damages for an injured driver if that driver was uninsured at the time of the accident.  There has been another California Appellate Court decision basically upholding the entire law.  Quackenbush (our Insurance Commissioner) et al, v.  Superior Court of  San Francisco, and the Congress of California Seniors was decided on December 24, 1997.  That decision has "tackled" all of the "fairness" issues and past critiques of the new law, and upheld the new law on every ground.   It appears now that unless the California Supreme Court decides otherwise, Proposition 213 is here to stay.

Again, the most practical piece of information here is that the risk of being uninsured, like driving under the influence, is being made very costly in our society.  Keep your policies in force and current.

 
Practicing Brain Dead

The following was sent to me via email.  I thought it a good idea to start off the new year with a little humor, at the expense of the legal profession:

(From the Alameda County District Attorney's office, the following is an actual excerpt from a murder trial when the defense attorney was cross-examining the county coroner):

Attorney: "Before you signed the death certificate, had you taken the pulse?"
Coroner: "No."
Attorney: "Did you listen to the heart?"
Coroner: "No."
Attorney: "Did you check for breathing?"
Coroner: "No."
Attorney: "So, when you signed the death certificate, you weren't sure the man was dead, were you?"

Coroner: "Well, let me put it this way. The man's brain was sitting in a jar on my desk. But I guess it's possible he could be out there practicing law somewhere."

Bestseller

I rarely have recommendations for reading material, enjoyment or otherwise.  And when I do, I rarely pass them along because I find people's tastes in reading are so diverse.  This is especially true when it comes to legal thrillers.  However, I have one this time, an excellent read and great introduction to the inner workings of high level tort litigation.

A Civil Action, by Jonathan Harr, Vintage Books, 1996, tells the story of Jan Schlichtmann, a young contingency lawyer, and  his handling of a lawsuit involving several families allegedly injured by TCE poisoning, a toxic solvent which was purportedly  used by the W. R. Grace Co. in one of its operations near the community of Woburn, Massuchussetts in 1986.  It is a compelling,  fast and exceptional read which chronicles the toxic tort litigation and high stakes gamble that is litigation when essentially middle class claimants are pitted against large funded organizations or companies.  The story takes an inside look at the kinds of expectations, myths and manipulations that get generated when disputes of this nature have to rely upon the contingency fee process.

The lawsuit ends up a loser, and the author does a masterful job of exploring the conflicts that causes.

Winner of the National Book Critics Circle Award for Nonfiction, 1995; New York Times Bestseller
 

Dog Days

The American Kennel Club and Center for Disease Control reported a ranking of the most dangerous breeds compiled from 1995 statistics as follows:

1. Pit Bull
2. German Sheperd
3. Siberian Husky
4. Alaskan Malamute
5. Doberman Pinscher
6. Chow Chow
7. Great Dane
8. Akita
9. St. Bernard

Legal Trends

Recent Cases of Interest

Tech Trends

(The following is a compilation of thoughts and opinions which have appeared at various web sites and in news articles and interviews I reviewed over the holidays.)

• We will see the emergence of 20 gigabyte hard drives and computers that run at 600mhz.
• The war of DVD (digital video disk) will be concluded by the fall of 1998 and prove to be extremely popular.  Three years later VHS will only be in pawn shops and eventually go the way of the eight track.
  
• Windows 98 will never happen.  Microsoft will simply introduce its popular "NT" operating system as the substitute for the next generation of computing.
• Rhapsody will (maybe?) come out  in the summer when computer companies have a choice to put a far more superior OS on their Intel based machines. The thrill surrounding this is that the Rhapsody software is purportedly intended to be able to run on both Intel and Apple based architecture, and be compatible with applications developed for either.
• Cable Modems will become extremely popular---if not in the least as a "stop gap" development to ease the road blocks currently associated with Internet speed.
• Others to look for:  more sophisticated speech recognition software (replaceable secretary?); PC's in new cars; and hand held computers that will page, send and receive email, and basically blow the lid off telephone, paging and cellular pricing.  (Competition and competing technologies will make it all cheaper.)

And, what may you ask, is the legal significance?  Look for the answers in future editions of this newsletter as I begin to delve into the subjects of electronic contracting, digital signatures, and electronic banking.  The dynamic Uniform Commercial Code is entering the 21st Century.  Commerce and business will never look back, nor look the same.

Class Actions

This is prompted by the recent news involving the "decertification" of a class action lawsuit involving tobacco litigation.  It seems that almost daily we see in the media "legal" notice of class certification of a mass tort or product liability case. Why is it that class actions have become so popular?  And what are "class actions"?

A class action is a term which comes from the Federal Rules of Civil Procedure, and usually involves a large loss or injury situation involving many people--some of whom cannot be identified specifically, but only by way of history of involvement in a transaction or series of transactions, a mass disaster, or some usage of a product or service that has been identified as causing harm.

Class actions have become more prominent and numerous because of several reasons.  Technology now exists which makes the management of large numbers of claims and documents easier and more cost effective.  In Federal rules which guide the conduct of lawyers and courts in the handling of massive or complex litigation, many innovations have occurred.  There used to be complex bans on "solicitation" or direct contact to identify members of the class. These rules have basically changed to permit such communication.  Class actions also generate large pools or common funds from which specialists and attorneys who practice in the area can look to be paid.  The economics, therefore, allows for more risk taking on the contingency fee.

Under the Federal Rules, a lawsuit can proceed as a "class action" if certain criteria is met and satisfied.  A lawsuit is usually brought on behalf of certain "figurehead" plaintiffs and others similarly situated.  One of the issues then becomes certification of the class, and deciding whether or not there is a commonality of interests (either in terms of determining fault or injury, or both) for the members or classes identified.  Technical rules concerning notification of the lawsuit , developments or resolution must be satisfied.  This is where we usually see the types of notices that appear on TV, radio or in newspapers.  Over the  years I have received several such notices regarding litigation over auto leases, securities or stock purchases, etc.

Dissemination of class notice and the mechanics of the certification hearing are just a few of the basic issues which may be confronted, and these may differ somewhat depending upon whether the class sought to be certified is for litigation or settlement purposes. The general rule is that class certification determinations are
to be made by the court at the earliest opportunity in the litigation.  Sometimes hearings are required.  Sometimes the parties must engage in litigation just to decide the parameters of who is involved.  The kinds of notices required are intended to give information to absent members of the class.

Once notice is disseminated, absent members or others who feel they have a claim can "opt out".  Those individuals who opt-out may pursue individual litigation in the forum of their choice.  Those that do not opt-out are bound to the judgment or settlement and are precluded from engaging in subsequent litigation in another forum or collaterally attacking the class judgment. Those parties seeking to pursue subsequent litigation may be enjoined by virtue of their failure to exercise their opt-out right, because this failure is deemed to be a consent to the court's jurisdiction. If notice is inadequate, however, absent class members will not be deemed to have submitted to the jurisdiction of the court and may be free to commence individual litigation, or to collaterally attack the class judgment based upon inadequacy of representation through lack of adequate notice. Time deadlines applicable to each of these decisions or stages are usually set forth in the notices.

Besides the tobacco litigation, recent examples of well know class action litigation include the Dalkon shield, breast implants, and, most recently, the diet drug phen-fen combination which has been linked as a potential cause of heart valve problems.