Vague Post-Trial Motions May Not Extend Your Time for Appeal

The Utah Supreme Court sent a reminder to all parties considering appeal: file a timely appeal.  And, just as importantly, if you are unclear what type of motion or whether a motion under a particular rule will extend your deadline to appeal, file a timely appeal.

In WCF v. Argonaut Insurance, 2011 UT 61, Argonaut filed a motion entitled “Objection to Judgment” following a judgment entered against it.  The motion did not include a memorandum of points and authorities nor cite any legal authority.  Argonaut failed to file a timely notice of appeal.  Argonaut asserted that the deadline to appeal was stayed by the filing of the Objection to Judgment under Rules 59 and 60(b), Utah Rules of Civil Procedure, alternatively.  The Court rejected both claims and found the appeal untimely.

Utah Court of Appeals Supports Jury Prerogative in Medical Malpractice Case

Plaintiff lost at trial when the jury found that the plaintiff had failed to provide evidence of causation between his alleged injury and damages.  Plaintiff moved for a new trial asserting he had put on evidence of causation through his expert. The Utah Court of Appeals sustained Second District Court Judge Michael D. Lyon’s (no relation to plaintiff) ruling denying plaintiff’s Motion for New Trial.  The appellate court once again sustained a jury’s broad “latitude to weigh the credibility of witnesses” and, in particular, to not “believe an expert witness even when that expert’s opinion is unchallenged by the opinion of an opposing expert.”

Accounting Malpractice Claims Survive Dismissal in Recent Questionable Ruling in Chaikovsa, LLC v. Ernst & Young, LLP

Privity of contract is alive and well! —but can be limited as defendant Ernst & Young found out.  E&Y moved for dismissal of accounting malpractice negligence claims asserting that plaintiff lacked privity of contract.  The court rejected this position finding “that plaintiffs have sufficiently alleged that defendant had a duty to act in a nonnegligent manner toward plaintiff because plaintiff was known to defendant to be a read more

Understanding the Appeal of Your Opponent’s Case Is a Key to Winning at Trial.

Harry Plotkin is a jury consultant who sends out jury tips once a month.  I’m not sure how I got on his email list but I’m glad I am.  He has very insightful information.  This month his focus is on understanding the opposing side in order to avoid giving the jury the impression you do not understand or concede your opponent’s points.  Here are some highlights: read more

BYU Successfully Disqualifies Winston & Strawn in Lucrative Pfizer Celebrex Patent Case

In a pending Celebrex patent action worth potentially a billion dollars brought by Brigham Young University against Pfizer Inc., BYU recently scored a few points by convincing Magistrate Judge Brooke Wells that Pfizer’s counsel should be disqualified.   read more

You Make the Call: Does Vehicle GPS Tracking Without a Warrant Violate Any Right?

When I was kid I watched “This Week in Baseball” (also known at the time as “TWiB”) and there was always a cool bit about showing a replay from the week in which a close play was shown with a questionable umpire ruling.  The tagline was “you make the call!” and there would be a commercial between the end of the replay and the answer on the field.  Here’s my version of “you make the call!” from this week’s rulings.

David L. Foltz, Jr., was convicted of sexual assault when he was caught red-handed due, in part, because the police were able to track him driving his work-issue van around town after placing a battery-powered GPS device under the bumper.  Foltz set up two primary arguments that the Virginia Court of Appeals knocked down: the GPS placement and tracking violated his Fourth Amendment rights and violated his right to privacy.  Foltz asserted that the GPS installation was a search and a seizure and that the activation of the GPS and tracking was a violation of his expectation of privacy.  The police did not obtain a search warrant and within the past few years had initiated over 150 similar GPS tracking devices without a warrant.

You make the call!  Should it be legal for the police to install GPS devices on private vehicles and monitor the vehicle movements of private citizens without a warrant?

UPDATE:

A man in California recently found a tracking device on his vehicle while it was being fixed at an auto repair shop.  He ended up posting pictures of it on the web and the FBI demanded it back.  He complied and “[c]omments the agents made during their visit suggested he’d been under FBI surveillance for three to six months.”

Similar to the Virginia case cited previously, Foltz v. Commonwealth of Virginia, the Ninth Circuit also recently decided that GPS tracking does not violate any rights and is available without a warrant.

That Case You Settled Could Rise Up and Bite You- Just Ask Toyota

A Texas state court judge (I know, not the best source of legal precedent) recently lifted a stay on litigation between a paralyzed woman who settled her Camry roll-over claim against Toyota and then later sought to set aside the $1.5 mil settlement . . . read more

Utah Supreme Court Expressly Recognizes the Cause of Action for Negligent Credentialing Against Health Care Providers

In Archuleta v. St. Mark’s Hospital, the Utah Supreme Court, in a 4-2 opinion released today, overturned a district court decision which had determined that Utah Code sections 58-13-5(7), 58-13-4, and 26-25-1 do not bar negligent credentialing claims brought against health care providers.  The court analyzed each code section and found that the Utah Legislature did “not intend to immunize negligent credentialing claims brought by patients” and “expressly h[e]ld that negligent credentialing is a valid common-law cause of action in Utah.”  If you ever had any question about this before, you should have none now.

In Utah, Attorney’s Fees Are Valid, Consequential Damages for Another’s Negligence If It Causes You to Be Sued

We all know that the ‘American Rule’ applies to bar an award for attorney’s fees unless otherwise permitted by statute or contract.  Utah recognizes an exception to the American Rule “when the natural consequence of one’s negligence is another’s involvement in a dispute with a third party,” which is also known as the “third-party tort rule.” South Sanpitch Co. v. Pack, 765 P.2d 1279, 1282-83 (Utah Ct.App.1988); see also Restatement (Second) of Torts § 914(2) (1979).  The fees may be limited because an “allocation is made between recoverable fees incurred in litigation with third parties and non-recoverable fees incurred in pursuing the negligent defendant or expended on causes of action not proximately necessitated by that defendant’s negligence.”  Id.

If your client gets sued because of the negligence or tort of another, even in breach of contract cases where the contract does not provide for attorney’s fees, remember to raise an affirmative claim against the other for attorney’s fees, costs, and other consequential damages if it is warranted.  Also, this claim can be raised after the fact in a separate claim against the allegedly negligent third-party.  Good luck.

Utah Supreme Court Upholds Constitutionality of Products Liability Statute

The Utah Supreme Court issued Egbert v. Nissan (“Egbert II”) in which it has expressly held:

1) The rebuttable presumption of non-defectiveness in product liability cases is constitutional and has been effective in Utah for more than 20 years; and

2) Restatement (Third) Torts section 16(b-d) regarding enhanced injury claims is rejected.  An “enhanced injury occurs when an injury caused by some other event is increased or enhanced due to a defective product.”  The Court found an inherent conflict between the restatement and Utah’s long-standing abolishment of joint and several liability and adoption of apportionment of fault.

Settling Personal Injury Claims in Utah – an Update on Medicare Liens

No doubt you have heard about Medicare’s new reporting requirements.  If Medicare has paid for any of a personal injury claimant’s medical care, Medicare is entitled to be repaid whenever the case is settled—regardless of any provision in the settlement documentation disputing any liability or otherwise attempting to allocate the settlement funds to a non-medical care purpose.  The new requirements appear to have a dual purpose: 1) reimburse Medicare and 2) deter non-reporting.  Failure to comply with the reporting requirements can result in double recovery and $1,000 per day fines.  The ABA published an article (by Caroline Powell of Cranfill Sumner & Hartzog LLP) that provides a good summary of the new reporting requirements here.

Failure to Issue “Litigation Hold” Could Result in Sanctions and Attorney’s Fees

The recent S.D.N.Y. decision in Pension Committee of the Univ. of Montreal Pension Plan v. Banc of America Securities, 05 Civ. 9016, 2010 U.S. Dist. LEXIS 1839, *1 (S.D.N.Y. Jan. 11, 2010, and amended, Jan. 15, 2010), highlights that litigation requires more than simply responding to discovery once it is initiated by a formal request.  In this case, the plaintiffs failed to anticipate and issue within its company a litigation hold to preserve and collect all reasonably relevant documents.  The plaintiffs waited nearly two years before initiating a written litigation hold.

The court was clear that “the failure to issue a written litigation hold constitutes gross negligence because that failure is likely to result in the destruction of relevant information.”  The court found that a litigation hold should “direct employees to preserve all relevant documents —both paper and electronic” and “create a mechanism for collecting the preserved records so that they can be searched by someone other than the employee . . . .”  The court also found that collection efforts do not “require hands-on supervision from an attorney. However, attorney oversight of the
process, including the ability to review, sample, or spot-check the collection efforts is important. The adequacy of each search must be evaluated on a case by case basis.”

Here are some practice pointers offered by Orrick:

*  “[O]nce a party reasonably anticipates litigation, it must suspend its routine document retention/destruction policy and put in place a ‘litigation hold’ to ensure the preservation of relevant documents.”

*  Employers should consider whether they have an obligation to preserve, search and collect information on an employee’s home computer or mobile personal device.

*  Once the duty to preserve is triggered: 1) suspend auto-deletion of ESI; 2) ensure preservation efforts account for departed employees; and 3) take steps to ensure preservation of relevant information under the litigating party’s control but in the custody of third parties.

*  Custodian self-collection can be defensible with the appropriate supervision by counsel. To ensure defensibility, it is important to understand the technology and process used for collection, document actions and decisions, and sample custodian self-collection.

*  Collection instructions should be in writing and technical support should be available to the custodian.

*  If relying on custodian self-collection, instructions to individual employees should include a broad description of “relevant documents.” As much as possible, avoid asking the employee to make relevancy determinations.

*  Any proffer of eDiscovery evidence should be specific and accurate. Whether arguing for cost shifting or presenting evidence of the reasonableness of preservation or collection, it is essential that the statements have specificity. Cursory summaries of IT infrastructure, scope of collection and preservation or cost will inevitably lead to problems. To support these detailed evidentiary offerings, it is important to document decisions and actions throughout the eDiscovery process. When identifying an appropriate witness on these issues, ensure the witness understands the company’s IT infrastructure and can explain, in detail, the preservation and collection protocol at issue. The average IT employee or paralegal is unlikely to have the knowledge and skill to be an effective witness.

*  The Pension Committee Court pointed out that all of the declarations in this case stated that “all documents” had been collected.  With today’s proliferation of information, even the most comprehensive and well-run searches cannot locate “all documents.” “Courts cannot and do not expect that any party can meet a standard of perfection.” Rather, when offering evidence or certifications regarding preservation and collection, describe these efforts in accordance with the “reasonable inquiry” standard of Fed. R. Civ. P. 26(g).

*  Where the value of the case justifies the expense, there are distinct advantages to collections performed by expert vendors. These vendors are well versed in collection and search techniques and generate detailed documentation regarding the who, what, where, and when of the collection. They can also serve as the declarant or 30(b)(6) witness on issues of eDiscovery. This can spare the party’s legal or IT department from serving as the witness.

*  Preserve backup tapes when they are the sole source of relevant information. If, on the other hand, they contain duplicate copies of information available on servers, hard drives or other accessible sources, preservation is not necessary.

Good luck.

Remember to Post All legal Notices in Print and Online Beginning January 1, 2010

If you need to post a legal notice in a local publication, remember that the Utah Legislature modified the law somewhat and, beginning January 1, 2010, many legal notices in Utah must appear in a local newspaper and online.  The Utah Press Association, an association of most, if not all, of Utah’s major newspapers, has established UtahLegals.com, as site on which all legal notices published in print will automatically be posted online.

Prosecutors Be Forewarned: Intimidating and Improperly Influencing Witnesses Could Lead to Acquittal.

Honorable Cormac J. Carney, a judge in the Central District of California, Southern Division, entered a judgment of acquittal in favor of the defendant based on a lack of evidence. There was trial testimony, however, the judge struck the testimony based on the prosecutor’s misconduct in intimidating and improperly influencing witnesses.  Here are some of the highlights of the misconduct found by the court as to one of the witnesses:

Among other wrongful acts the government, one, unreasonably demanded that Dr. Samueli submit to as many as 30 grueling interrogations by the lead prosecutor.

Two, falsely stated and improperly leaked to the media that Dr. Samueli was not cooperating in the government’s investigation.

Three, improperly pressured Broadcom to terminate Dr. Samueli’s employment and remove him from the board.

Four, misled Dr. Samueli into believing that the lead prosecutor would be replaced because of misconduct.

Five, obtained an inflammatory indictment that referred to Dr. Samueli 72 times and accused him of being an unindicted coconspirator when the government knew, or should have known, that he did nothing wrong.

And seven, crafted an unconscionable plea agreement pursuant to which Dr. Samueli would plead guilty to a crime he did not commit and pay a ridiculous sum of $12 million to the United States Treasury.

Google Challenges Westlaw and Lexis With “Google Scholar”

Google continues to expand the universe around it—this time it has rolled out “Scholar” a free search engine for case law and articles.  Scholar has the ability to search for specific cases or by topic.  Once a case is identified, you can then explore “cited by” and “related articles” links.  You can also explore articles or opinions related to your case or topic.  Scholar exposes the profit foundation for Westlaw and Lexis and threatens to relegate these companies into nothing more than a way to make sure case is current (a la Shepard’s or Keycite).  That day may be years away while Scholar is fine-tuned to produce results to compete with these services, however, it certainly appears that day is at least on the horizon.  The only question now is how long will it take to get here.

Congratulations to Allan Larson and Heather White

Congratulations! to my partners, Al Larson and Heather White obtained a defense verdict in a widely covered case involving a car accident following a terminated high speed police chase in Ogden, Utah.  The case involved police pursuit in December 2005 by Ogden City Police of Eddie Bustos, a man wanted for multiple traffic violations and suspected DUI.  The pursuit occurred around 3:00 a.m. but lasted less than a minute when the police terminated pursuit a block and a half before Bustos continued on running a red light at 24^th and Grant in Ogden and hit a car instantly killing its driver, Jessica Nelson, and its passenger, Philemon Ellis.

The wrongful death lawsuit asserted that “the officer was negligent in initiating, continuing, and terminating the pursuit”.  Al and Heather successfully argued that the City was not at fault and the accident was caused by the fleeing driver, who is currently serving a prison term for the accident.  The jury agreed.  Although I was not present, I hear Al was great as usual and Heather did a fine job crossing the plaintiff’s evasive expert.  She also crossed the grieving family members, and fielded untold motions from plaintiff’s counsel, Bob Sykes.  Scott Young, an associate, did a great deal of briefing as well.  A great team effort.  Again, Congratulations!

If you know of some good lawyering that should be publicly recognized, send me an email and we’ll get it posted.

Your Private Medical Records May Be Publicly Available

Medical record vendors who manage electronic health records may be selling the information found in your medical records albeit in a “scrubbed” form.  The private health information, however, appears be traceable to the patient through, among other things, public voter registration information.  No doubt HIPAA concerns abound.  What about your doctor, is s/he selling your information or keeping it private?  Also, although it appears possible to trace the health information to a particular individual, what is the likelihood?  Moreover, is or should likelihood of disclosure even a part of the equation?

“What these three cases now present to us is a tangled, nearly indecipherable mess of repeated and convoluted contentions engulfed in more smoke than a Friday boys-night-out poker jamboree.”

See Log Furniture, Inc. v. Call, 180 Fed.Appx. 785 (10th Cir. (Utah) 2006), an otherwise unremarkable case about the lack of standing of anyone other than a Chapter 7 bankruptcy trustee to bring claims on behalf of a debtor.

Tax Planning for Small Business Owners

Wells Fargo Small Business Roundup, a newsletter service provided by Wells Fargo Bank, sent me a newsletter I thought was helpful in terms of tax planning together with audit avoidance or at least audit success.  (There were also a number of other helpful articles on the site).  Here’s the good stuff about what the IRS is interested in:

• Does your lifestyle square with your reported income? “An auditor sizes you up for dress, jewelry, car and furnishings in your home or office, if given a chance to make these observations. Someone who looks like a Vegas high roller, with the tax return of a missionary, will cause any auditor to dig deeper,” Daily says.
• Does your business handle a lot of cash? If your business handles a lot of cash, expect the auditor to suspect skimming, or diverting income into your own pocket, without declaring it.
• Did you write off auto expenses for your only car? Personal use of your business-deducted set of wheels is so common that auditors expect to find it. That doesn’t mean they’ll accept it, however. Auditors don’t believe you use your one-and-only auto 100% for business and never to run to the grocery store or the dentist. If you operate your car for both business and pleasure and claim a high percentage of business usage, keep good records (preferably a mileage log).
• Did you claim personal entertainment, meals or vacation costs as business expenses? Travel and entertainment business expenses are another area where the IRS knows it can strike gold. Document all travel and entertainment deductions. Taking buddies to the ball game and calling it business won’t fly if you can’t explain the business relationship in a credible fashion.
• Did you “forget” to report all of your business sales or receipts? If you failed to report significant business income—$10,000 or more—strongly consider hiring a tax pro to handle the audit. Remove yourself from the process altogether.
• If the auditor finds evidence of large amounts of unreported income, and it looks intentional, he may call in the IRS criminal investigation team.
• If you have employees, are you filing payroll tax returns and making tax payments? Employment taxes are a routine part of every audit of a small enterprise.
• And last but not least, if you hire people you call “independent contractors,” are they really employees? The IRS routinely conducts audits of businesses that hire independent contractors, because of the tax savings associated with hiring contractors instead of employees.

* * *

If you have questions about your taxes and successfully avoiding or managing a tax audit, get help from a professional.  It will be money well-spent.  Good luck.

Daniels v. Gamma: a Basketful of Medical Malpractice Rulings

In Daniels, the Utah Supreme Court addressed a number of medical malpractice issues together with general trial issues.  Here is the gist: read more

The New Pleading Standard in Federal Court Requires Greater Factual Content

The United States Supreme Court is your new friend in seeking dismissal in federal district court.  Its Iqbal v. Ashcroft has been heralded as the “most significant Supreme Court decision in a decade for day-to-day litigation in the federal courts.”  Senator Arlen Specter (D-PA) has filed legislation to force a reversal of Iqbal.  The uproar among some counsel is in full swing.

What’s the big deal, you ask?  Well, the Court reiterated and extended in Iqbal its holding from Bell Atlantic Corp. v. Twombly, the shift in the pleading standard from simple “notice pleading” to “facial plausibility,” which provides that in order to “survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”

The Iqbal Court disclosed that a “claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”  The plausibility standard “asks for more than a sheer possibility that a defendant has acted unlawfully.”  Moreover, “[w]here a complaint pleads facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of the line between possibility and plausibility of ‘entitlement to relief.’”

One question that remained following Twombly was whether the ruling was intended to apply beyond the antitrust arena.  The Court expressly rejected this argument.  The Court applied Twombly and identified the two “working principles” found in Twombly: 1) “that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”  And 2) only a complaint that states a plausible claim for relief survives a motion to dismiss.  To determine facial plausibility, the district court judge must “draw on its judicial experience and common sense,” however, “where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not “show[n]”—“that the pleader is entitled to relief.”

The Court rejected an assertion that under Rule 9, Federal Rules of Civil Procedure, “general allegations,” i.e., conclusory allegations, are sufficient to assert a claim of discriminatory intent.  The Court held that “the Federal Rules do not require courts to credit a complaint’s conclusory statements without reference to its factual context.”  Moreover, the Court found that “Rule 8 does not empower respondent to plead the bare elements of his cause of action,affix the label ‘general allegation,’ and expect his complaint to survive a motion to dismiss.”

There has been no Utah state court appellate decision to cite either Twombly or Iqbal, however, you should take advantage of them state court because “[i]nterpretations of the Federal Rules of Civil Procedure are persuasive where the Utah Rules of Civil Procedure are ‘substantially similar’ to the federal rules.”  Tucker v. State Farm Mut. Auto. Ins. Co., 2002 UT 54, ¶ 7 n. 2, 53 P.3d 947 (citation omitted).  Moreover, the compiler’s notes to Utah’s Rule 8 admits that the Federal and State Rule 8 are “substantially the same” and the courts, therefore, “freely refer to authorities which have interpreted the federal rule.”  Gold Standard, Inc. v. American Barrick Res. Corp., 805 P.2d 164, 168 (Utah 1990).

Let us know if you have any success applying the Iqbal “facial plausibility” standard in state court.

Your Motion to Dismiss in Utah Is Not Limited to the Allegations in the Complaint

Normally, in considering a motion made under Rule 12(b)(6), the court accepts the plaintiff’s allegations as true, drawing all reasonable inferences in plaintiff’s favor. See Russell v. Standard Corp., 898 P.2d 263, 264 (Utah 1995). Utah courts, however, insist that facts be plead– not conjecture, or speculation.  “[T]he sufficiency of [plaintiffs’] pleadings ‘must be determined by the facts pleaded rather than the conclusions stated.’” Bennett v. Jones, Waldo, Holbrook & McDonough, 2003 UT 9, ¶60, 70 P.3d 17 (quotations omitted).

It is also clear that in considering a motion made under Rule 12(b)(6), “[t]he court is not bound by a complaint’s legal conclusions, deductions and opinions couched as facts.” In re FX Energy, Inc. Securities Litigation, 2009 WL 1812828 (D. Utah) (slip copy) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1964-65, 167 L.Ed.2d 929 (2007)).  Moreover, the court is not “required to accept as true conclusory allegations that are contradicted by documents referred to in the complaint, and [the Court does] not necessarily assume the truth of legal conclusions merely because they are cast in the form of factual allegations.” Paulsen v. CNF Inc., 559 F.3d 1061, 1071 (9^th Cir. 2009); see In re FX Energy, 2009 WL 1812828 at *6 (same); Rapoport v. Asia Electronics Holding Co., 88 F.Supp.2d 179, 184 (S.D.N.Y. 2000) (same).

If you find that the plaintiff’s complaint does not include all of the facts necessary to support your motion to dismiss, there are circumstances which allow you to attach the supporting documents and still retain the motion under 12(b)(6).  If “a plaintiff does not incorporate by reference or attach a document to its complaint, but the document is referred to in the complaint and is central to the plaintiff’s claim, a defendant may submit an indisputably authentic copy to the court to be considered on a motion to dismiss.”  Oakwood Village LLC v. Albertsons, Inc., 2004 UT 101, ¶13, 104 P.3d 1226 (citation omitted).  Also, “[a] court shall take judicial notice if requested by a party and supplied with the necessary information.”  Rule 201(d), Utah Rules of Evidence.  Moreover, “[t]he rules are clear that documents attached to a complaint are incorporated into the pleadings for purposes of judicial notice and are fair game for [the]court to consider in addition to the complaint’s averments.” Id. at ¶10.

Feel free to think outside of the complaint to find the facts necessary to make a motion to dismiss.

A Final Order in Utah State Court Automatically Disposes of Any Prior Inconsistent Rulings

It seems like this principle comes up more often than it should: “When a final disposition of a case is entered by a district court, any unresolved motions inconsistent with that disposition are deemed resolved by implication.”  State v. Mullins, 2005 UT 43, ¶ 8, 116 P.3d 374.

Utah Federal Court Is Where I Want to Be . . .

The 10th Circuit recently reviewed the differing standards and burdens applicable in motions for summary judgment in Milne v. USA Cycling.  The court reviewed both Pearce v. Utah Athletic Foundation, 179 P.3d 760, 767 (Utah 2008) and Berry v. Greater Park City Co., 171 P.3d 442, 449 (Utah 2007) related to the proper summary judgment standard.  Ultimately, however, the court found that “although we will look to Utah law to determine what elements the plaintiffs must prove at trial to prevail on their claims we will look exclusively to federal law to determine whether plaintiffs have provided enough evidence on each of those elements to withstand summary judgment.”

If you have a case for a defendant that is susceptible to a motion for summary judgment, get it out of state court and into federal court, and keep it there at all costs.  Your chances of securing summary judgment are better.  Happy hunting.

“[W]e see no harm in allowing [counsel] to use a cultural reference as shorthand [in closing argument] . . .

to make the point that, in [counsel’s] opinion, [plaintiff’s] damages methodology was likely to render this jury’s verdict excessive.”  Boyle v. Christensen, 2009 UT App 241.  The Court makes it clear you should feel free to refer to iconic events or cases to assist your argument.  Here, counsel referred to the “McDonald’s” excessive verdict to sway the jury to see this plaintiff’s claims as excessive.  Get creative.  You have “considerable latitude” in closing arguments just as long as you don’t refer to “material that the jury would not be justified in considering in reaching its verdict.”

Federal Court’s PACER Comes Undone With “RECAP”

The Federal Court’s online document access program “PACER” requires $0.08 payment per page.  “RECAP” (PACER in reverse) is a Firefox web-browser add-on that adds any document you access to a free database allowing yourself and others to view the same document later for free.  You get the benefit of documents already accessed by others as well as your own.  In RECAP’s own words:

We created RECAP in hopes of hastening the day when court records would be freely available to the general public via the Internet. RECAP contributes to this goal in three important ways. Most obviously, we are directly increasing public access to legal documents by creating a free repository that anyone can access. Second, by donating bandwidth and CPU cycles to the cause of public access, we are reducing the load on the PACER servers and making it feasible for the courts to make more documents freely available with the computing resources they already have. Finally, we think that building and running RECAP will give us the opportunity to study the practical challenges involved in large-scale open access to public documents. We hope to learn lessons that will help the judiciary improve its own systems. And we hope our efforts will inspire the Administrative Office of the Courts to accelerate its own movement toward an open access regime.

*** ADDED BONUS: For those of you not yet running Mozilla’s Firefox web-browser, now is your chance to get it set up.  Firefox is a better alternative to other web-browsers such as Windows Internet Explorer (you may not even have realized that you have a choice of web-browsing software—you do.  Web browsing requires a program just like you need a program to type a letter or send an email.  Exercise your freedom of choice).  Try it, you’ll like it.

UPDATE: In a report by Wired Threat Level yesterday, it appears that the federal courts are, predictably, not as enthusiastic about RECAP as $.08-per-page-users of PACER.  In a warning notice, the courts cite privacy and security concerns– essentially a “a bit of Fear, Uncertainty and Doubt” (aka “FUD”), and discourage use of RECAP until “the implications of its use are better understood.”

The initiation of RECAP and its implications prompts one reminder: Remember to redact all social security numbers from any documents submitted to the court as well as any other information that might be crucial to your client’s or others’ privacy and security.  A spot of care will help you and your clients “keep from falling apart at the seams.”

Don’t Let Your Smartphone Tarnish Your Professional Image

Smartphones, such as the Blackberry, Treo, and iPhone, can and will distract.  They are a fantastic diversion at events like conventions, mediations, and large meetings which are, at times, less than compelling.  In a recent ABA Law Practice article by Allison C. Shields, Esq., we are reminded that there are rules of etiquette and behavior that are easily broken with smartphone use.  Some highlights:

Ten years ago someone seen talking to themselves was clearly crazy.  Now, we know they are most likely on the phone with a wireless headset.  Please be considerate of the rest of us: “Just because you engage in an activity by yourself doesn’t mean that you are alone. . . . Even if you are dining alone, other restaurant patrons, train riders, and people who work out at your gym don’t want to be bothered with or interrupted by your telephone conversations.”

This isn’t Star Trek, so take the Jawbone out of your ear before someone goes Samson on you with it: “Bluetooth is a great technology, but it isn’t a fashion statement. Remove your headset when in the presence of others – it is distracting and it conveys the message that you are willing to be interrupted by someone or something ‘more important’ than the people you are with.”

In short, those around you, especially clients, potential clients, colleagues or bosses, likely have different expectations than you do and texting, Internet surfing, “microblogging, IM’ing and other similar activities may not only appear rude, but may hamper your ability to participate and get the most out of the event or meeting.”  Be the master of technology and not its slave.  Remember, “[u]”se technology, but use it wisely and respectfully.”

Make a Clean Exit From Utah Federal Court

Remember that when withdrawing as counsel in Utah Federal District Court that a local rule governs the process: DUCivR 83-1.4 ATTORNEYS – WITHDRAWAL OR REMOVAL OF ATTORNEY.  Please do not file a plain motion for withdrawal like you would in state court because the federal judge will likely deny it and you will be stuck (at least for a bit longer) in a case spending more time for which you will not be compensated.  Do it right the first time.

Utah Law: Law of the Case Doctrine vs. Mandate Rule

The Utah Supreme Court recently clarified a bit of Utah law that has vexed me in a number of my cases recently: when and to what degree a district court is bound by its previous decisions in a case.

In Mid-America Pipeline Co. v. Four-Four, Inc., 2009 UT 43, __ P.3d __, the Supreme Court reiterated the long-held principle that “under the law of the case doctrine, a decision made on an issue during one stage of a case is binding in successive stages of the same litigation.”  (Citing IHC Health Servs., Inc. v. D & K Mgmt., 2008 UT 36, ¶ 26, __ P.3d __).  This rule remains effective regardless whether the judge changes or remains the same.  Id. at ¶ 11.  “Law of the case does not prohibit a district court judge from revisiting a previously decided issue during the course of a case, . . . [r]ather, “the doctrine allows a court to decline to revisit issues within the same case once the court has ruled on them.”  Id. at ¶ 26 (emphasis added by Mid-America court).

The trial court may, sua sponte, revisit any previous rulings in a case.  No motion is required and the court can refuse to reconsider its previous rulings.  There are, however, three exceptions which require a court to reconsider its previous, unappealed, rulings: “‘(1) when there has been an intervening change of authority; (2) when new evidence has become available; or (3) when the court is convinced that its prior decision was clearly erroneous and would work a manifest injustice.’”  Id. at ¶ 14 (citing IHC Health Servs., Inc., 2008 UT at ¶ 34).

Another quasi-exception to the law of the case doctrine lies in the “mandate rule.”  “[A] district court’s power to reconsider decided issues is limited when the case has been appealed and remanded.”  Mid-America, 2009 UT at ¶ 13 (citing IHC Health Servs., 2008 UT 36, ¶ 27).  “The mandate rule, unlike the law of the case before a remand, binds both the district court and the parties to honor the mandate of the appellate court.”  Id. “Thus, the decisions of an appellate court become the law of the case and cannot be reconsidered on remand.”  Id.

You are now informed.  Good luck.

Remember You Can Use an Unsworn Declaration in the Place of an Affidavit

You may recall that in 2008 the Utah Legislature made it possible under Utah Code Ann. 78B-5-705 to submit an unsworn declaration whenever the Utah Rules of Criminal Procedure, Civil Procedure, or Evidence call for an affidavit.  You should use the following magical phrase to make sure the declaration meets the statute: “I declare [or certify, verify or state (pick your poison)] under criminal penalty of the State of Utah that the foregoing is true and correct.  Executed on _____ [date]. ______ [signature].”  Be careful though; just because it is not sworn does not mean it is not binding.  A person who knowingly makes a false declaration is guilty of a class B misdemeanor.

Finally, Free WiFi at Salt Lake International Airport!

Salt Lake International Airport has at long last will join the rest of the world in providing free WiFi in its terminal beginning July 1, 2009.  Wahoo!

Settlement Agreements Revisited

As an update to my post on securing your settlement agreement, there is one more point to note: if you want the court to address certain issues that may depend on the existence of an admission of liability, it must be contained in the settlement agreement.  In Iron Head Construction, Inc. v. Gurney, the Utah Supreme Court reviewed a situation in which the parties settled their contract dispute but expressly agreed that pre-judgment interest would be determined by the district court.  The Supreme Court reversed an award of pre-judgment interest and the court of appeals.  Here are the highlights:

“where the settlement does not rest on a finding or contain a stipulation of liability and damages against a party, prejudgment interest is unavailable.”

“The settlement amount cannot properly be characterized as an award of damages for which prejudgment interest should be awarded.”

Add this to your arsenal.  Be very careful what you agree to in the heat of battle or negotiations.

Ride Your Bicycle and Make the World a Safer Place

The more people ride their bicycles, the safer we all are on our bicycles. Ezra Klein, a very thoughtful Washington Post economy blogger and opinionista, cobbled together information from Felix Salmon (Reuters) and StreetsWiki to present a compelling argument that, essentially, there is “safety in numbers.” I.e., the more bikes and pedestrians there are out and about on streets and crosswalks, motorists become accustomed to watching out for them and everyone is safer.  The following graph illustrates the point:

As to the safety of a bicyclist in New York City, Felix Salmon takes it to a bit of an extreme: “By my calculations, these numbers mean that you’d need to ride your bike in NYC for 7,300 days, on average, before getting injured. At 200 days a year, that’s over 35 years.”

I am more of a mountain rider and don’t ride the streets much but I do run the streets often.  For the most part people seem to be pretty aware of me on the street.  I have found a large number of people running in the wrong direction and riding bikes on sidewalks, however.  There appears a need for people on both sides of this issue to improve their safety awareness.

Paul Felt, Mediator

“I jettisoned the overhead of a big firm and now I work out of my house. I go to big law firms every day and use their facilities. I don’t get into the nitty gritty, boring document production. I get an interesting factual situation every day and I feel like I’m doing some good for society.”

The Salt Lake Tribune ran a short spotlight on Paul Felt, quoting him as above.  I have used him numerous times and he does a great job.  I recommend him highly.

Honorable David Kent Winder, Federal District Court Judge Passed Away May 19, 2009

Judge Winder of the Utah Federal District Court passed away today at the age of 76.  Rest in Peace.

You Are Not Limited to Rule 11 When Dealing With Unethical Conduct in Utah

I have been suffering at the hands of a less-than-ethical practicing attorney in Utah since 2000.  I recently ran across a case reminding me that we are not limited to bringing a Rule 11 motion for sanctions when things get out of hand.  The Utah Supreme Court expressed in Griffith v. Griffith, 1999 UT 78, ¶13, 985 P.2d 255, that district courts have an inherent power to control their courtroom and levy appropriate and potentially far-reaching sanctions:

It is undoubtedly true that courts of general and superior jurisdiction possess certain inherent powers not derived from any statute. Among these are the power to punish for contempt, to make, modify, and enforce rules for the regulation of the business before the court, … to recall and control its process, to direct and control its officers, including attorneys as such, and to suspend, disbar, and reinstate attorneys. Such inherent powers of courts are necessary to the proper discharge of their duties….

The summary jurisdiction which the court has over its attorneys as officers of the court … is inherent, continuing, and plenary … and ought to be assumed and exercised … not only to maintain and protect the integrity and dignity of the court, to secure obedience to its rules and process, and to rebuke interference with the conduct of its business, but also to control and protect its officers, including attorneys.

Id. (citing In re Evans, 42 Utah 282, 130 P. 217, 224-25 (Utah 1913) (cited in Barnard v. Wassermann, 855 P.2d 243, 249 (Utah 1993) (“[C]ourts of general jurisdiction … possess certain inherent power to impose monetary sanctions on attorneys who by their conduct thwart the court’s scheduling and movement of cases through the court.”))).

Don’t get mad and don’t try to get even—just protect the rights of your client to be free from unethical conduct.  The practice of law is enjoyable.  Don’t let the few bad apples spoil your fun.  Be safe out there.

Hal Christensen, Samurai Lawyer

Harold G. Christensen recently published “Samurai Lawyer,” a short book which I am told is a poetic description of his journey through more than a thousand cases.  Hal is a great lawyer that has been practicing law for more than fifty years.  His book has also been recommended by Professor John Flynn, Senator Orrin Hatch, and Judge Dee Benson.  I have not yet read the book but, knowing Hal and his excellent writing skills and critical thinking, I intend to this weekend.  According to Amazon.com, the book “parallel[s] the reality of every-day trial practice with the discipline and philosophy of a Samurai Warrior, [and] offers wisdom that may help others discover their own path in practice and in life.”  Pick up a copy at the King’s English Book Shop (shameless plug for a great local bookseller located at 1511 South 1500 East in Salt Lake City) or online.  Happy reading!

Secure Your Settlement by Putting it in Writing

The Utah Supreme Court has reminded the bar in McKelvey v. Hamilton, 2009 UT App 196, __ P.3d __, that confirming an understanding between parties, especially anything that resembles a settlement or agreement as to a particular issue, is likely only enforceable if it is memorialized in writing.  A little background.  You may recall from last year, in Moss v. Parr Waddoups Brown Gee & Loveless, 2008 UT App 405, 197 P.3d 659, that the Utah Court of Appeals refused to enforce a verbal settlement agreement reached during mediation.  The court also refused to allow the mediator to testify concerning the parties’ agreement because the mediator does not constitute an agent for purposes of a party-opponent admission and the existence of the contract was “premised upon the truth of the mediator’s statements.”  Id. ¶¶ 17-18.

In McKelvey, the court examined an alleged agreement among counsel to partially settle a family estate dispute.  Counsel for the McKelvey and Hamilton (Benson Hathaway and Mark Morris, respectively) verbally discussed and agreed to terms for settling the majority of the claims and establishing a procedure for agreeing on a business appraiser.  Mr. Morris followed up the conversation with a letter outlining the parties’ agreement.  Mr. Hathaway responded by letter and identified potential appraisers but did not deny the existence of the agreement, add any terms, or object to any of the stated terms.  Mr. Hathaway later withdrew as counsel and McKelvey subsequently denied that settlement of any issues had been reached.  The district court enforced the agreement that was first verbally agreed upon and later memorialized in the parties’ correspondence.  The court found that the Mr. Hathaway’s and Mr. Morris’s correspondence was sufficient to satisfy the basic requirements for a contract, i.e., offer and acceptance.  As to the assertion that Mr. Morris’ letter was hearsay, the court distinguished Moss and determined that his “letter is clearly admissible because it is proof in itself of a verbal act of contract and is not inadmissible on any other grounds.”

When you were a young attorney, you likely received counsel from seasoned attorneys that any verbal agreement should be memorialized in writing.  McKelvey illustrates this point.  You may have great respect for the honesty and integrity of the attorney on the other side, however, that attorney’s client may not have any such integrity and, in litigation, you can count on it.  Also, counsel who you respect and trust and who may be your best friend may not always be counsel on the other side.  Also, legitimate disagreements as to what was said can arise, especially with the passage of time.  Take the time to put your agreement or understanding in writing and avoid any dispute or at least ensure (hopefully) that the court will see it your way.  Good luck.

The Judicial Proceedings Privilege Is Broader Than You Think

The absolute privilege is very broad in scope and is perhaps under-appreciated by the bar.  The Utah Supreme Court explained:

One of the absolute privileges is that granted to participants in judicial proceedings. The general rule is that judges, jurors, witnesses, litigants, and counsel in judicial proceedings have an absolute privilege against defamation. See 50 Am.Jur.2d Libel & Slander § 231 (1970); W. Prosser & P. Keeton, [The Law of Torts] § 114. This privilege is premised on the assumption that the integrity of the judicial system requires that there be free and open expression by all participants and that this will only occur if they are not inhibited by the risk of subsequent defamation suits.

Price v. Armour, 949 P.2d 1251, 1256 (Utah 1997).

Three elements must be satisfied for allegedly defamatory statements to qualify for an absolute privilege: (1) The statement must have been made during or in the course of a judicial proceeding; (2) the statement must have some reference to the subject matter of the proceeding; and (3) the statement must have been made by someone acting in the capacity of judge, juror, witness, litigant, or counsel.

Allen v. Ortez, 802 P.2d 1307, 1313 (Utah 1990).

First, note that the privilege is absolute and not conditional.  For example, in Price, the court was faced with a litigant who, during settlement discussions, appeared to defame the other party’s attorney to the other party in both words and conduct.  Essentially, those who are protected by the privilege are entitled to publish defamatory material without fear of retaliation as long as all of the elements are met.

Also from Price we learn that “judicial proceeding” is a very broad concept in terms of the type of proceeding involved and the circumstances under which the defamatory conduct occurred.  “Judicial proceeding” includes formal court proceedings as well as “proceedings of administrative officers, such as boards and commissions so far as they have powers of discretion in applying the law to the facts which are regarded as judicial or ‘quasi-judicial’ in character.”  Price, 949 P.2d at 1257 (quoting Mortensen v. Life Insurance Corp., 6 Utah 2d 408, 315 P.2d 283 (1957) (other citations omitted)).

The scope of the privilege also precedes the filing of a formal action: “The absolute privilege to publish a defamatory matter can occur in communications preliminary to a proposed judicial proceeding as well as during the course of or as part of a judicial proceeding if the matter has some relation to the proceeding.”  Price, 949 P.2d at 1256.  The privilege also governs settlement discussions: the “privilege applies to defamatory statements made in the institution or conduct of litigation or in conferences or other communications preliminary to litigation.”  Id. at 1256-57 (citing 50 Am.Jur.2d Libel and Slander § 302 (1997)).

Finally, the absolute privilege applies not only to defamation claims but also to defamation-related claims such as intentional interference with business relations (including contractual and economic relations).  Id. at 1258.

Under a broad set of circumstances the absolute judicial proceedings privilege can be a powerful defense.  You are now informed.  Use it wisely.

MUJI 2d Will Try to Address the “Google” Mistrial

The ubiquitous smartphone strikes again: the New York Times reports that jury misconduct in the form of researching on the internet the case on trial in courtroom.  Is this the tip of the iceberg?  Perhaps before smartphones became as widespread independent jury research was limited to juries doing their research on their home computers after hours.  Now it seems every juror with a smartphone is googling the defendant over the lunch hour in even one-day trials:

A juror on a lunch or bathroom break can find out many details about a case.  Wikipedia can help explain the technology underlying a patent claim or medical condition, Google Maps can show how long it might take to drive from point A to point B, and news sites can write about a criminal defendant, his lawyers or expert witnesses.

Utah is currently in the process of redrafting its Model Utah Jury Instructions and will apparently include a jury instruction to address the threatened “Google” mistrial.  It is reported that the proposed jury instruction will instruct jurors to not use the Internet while they are serving as jurors.  Presumably the instruction will be tailored to each case since many people use the Internet for much more than research or inappropriately twittering about their jury trial.  We shall see.

Utah Supreme Court Apportions Medical Expenses in Worker’s Compensation Cases

Reversing a long-held position of the Labor Commission, the Utah Supreme Court held in Smith v. Labor Commission, 2009 UT 19, __ P.3d __, that when an industrial injury is compensable at less than 100% and the petitioner’s injury is apportioned among work-related and non-work-related causes, the compensation—including medical expenses—is apportioned as well.  The Labor Commission previously apportioned “compensation” but awarded 100% of medical expenses.  The Supreme Court clarified that medical expenses are “compensation” under the Utah Labor Code.  This is a significant departure since a worker whose injury was only 10% related to his employment previously could obtain an award of 100% of his medical expenses.

New Court Filing Fees Take Effect May 12, 2009

The Legislature increased nearly all court filing fees. (Current fees can be found here).  Here are the ones you will feel the most:

Civil complaint or petition: $155 $360

Counterclaim/cross-claim/3rd Party claim >$2&<$10k: $75 $150 or >$10k $105 $155

Divorce: $155 $310 or to modify divorce decree: $40 $100.

Trial de novo from small claims: $75 $225

The other fee increases are relatively minor dime and quarter increases ($10 and $25, respectively).  Maybe the increase will go back into hiring enough personnel to efficiently run the courts.  Or, maybe not.

“Financial Wellness Classes” . . . Or, Treating Your Financial Illness

If you are financially not well, you can get some free help at your local library:

The Utah State Law Library and Salt Lake County Library Service have partnered with local experts to present a series of financial wellness programs. All classes begin at 7 p.m. and take place at various library locations throughout the Salt Lake valley. Following is a list of the classes with information on the instructor along with the date and location.

Bankruptcy 101

Taught by Jory Trease, a bankruptcy attorney with the law firm of Trease & Ward

April 7, Columbus Library, 2530 South 500 East

Estate Planning

Taught by Marsha Thomas, a partner in the law firm of Thomas Tax & Law, Inc., and a part-time judge at the Taylorsville Justice Court

March 31, East Millcreek Library, 2266 Evergreen Avenue (3435 South)

Foreclosures 101

Taught by Stephanie Hanson, housing counselor and education coordinator, Community Development Corporation of Utah

March 17, East Millcreek Library, 2266 Evergreen Avenue (3435 South)

March 26, West Jordan Library, 1970 West 7800 South

April 29, Taylorsville Library, 4870 South 2700 West

Overview of Landlord/Tenant Law

Taught by Utah Legal Services attorneys Fred Anderson, Martin Blaustein, and Tim Williams.

April 15, East Millcreek Library, 2266 Evergreen Avenue (3435 South)

April 22, Columbus Library, 2530 South 500 East

April 23, West Jordan Library, 1970 West 7800 South

Advanced registration is not required. For more information, visit www.utcourts.gov/lawlibrary/ blog/classes_tours or call (801) 238-7990.

Harvard Psychiatric Expert Wants His Testimony Sealed

“Lawyers for Dr. Joseph Biederman, a leading Harvard child psychiatrist, are asking a judge to seal his testimony and accompanying documents in a huge multistate lawsuit, saying they ‘could be immensely damaging to him, both personally and professionally.’”

Apparently Dr. Biederman has been influential in advancing the “off-label” use of anti-psychotic medications in both adults and children.  There have been filed approximately 2,000 cases against a number of drug manufacturers for alleged injuries from the drugs.  This reminds me of a number of doctors caught up in the “off-label” use of Fen-Phen for weight loss in which a number of doctors promoted Fen-Phen and found their medical careers suffer when Pondimin was pulled from the market and the deluge of lawsuits began.  Dr. Biederman is apparently trying to salvage his medical reputation from any further tarnishing.  He did not do himself any favors in that respect, however, based on his deposition testimony in which, at one point, he was asked about his rank at Harvard Medical School:

“Full professor,” Biederman replied.

“What’s after that?” the attorney asked.

“God,” Biederman responded.

“Did you say ‘God’?”

“Yeah,” Biederman said.

Dr. Biederman thinks he’s only second to God because he’s a full professor at Harvard.  Well, he does not need to worry about his reputation.

Utah Legislature Modifies Medical Malpractice Claims Part 2

As reported here previously, the Utah Legislature was considering modifying medical malpractice claims in Utah in two ways: increasing the standard of proof required in medical malpractice cases against health care providers, i.e., doctors and hospitals, to a clear and convincing evidence standard for all care provided in the emergent situations and requiring medical experts submit to the jurisdiction of the Utah Physician’s Licensing Board.  The Legislature ultimately axed the second (and potentially problematic) part of the amendments concerning experts.  What the Utah Legislature passed is a heightened standard of care applicable to all health care providers in emergent situations.  The Legislature also included a limitation for physicians in which the heightened standard does not apply to a physician if the patient was already a patient of the physician before the emergency room encounter, the physician had treated the complained-of malady within the last three months, and the physician can consult the patient’s medical records while providing the emergency care.  This limitation is very limited and will unlikely apply in most or many circumstances.

As discussed previously, the change from a preponderance of the evidence standard as to fault to the clear and convincing evidence standard is a matter of degree that is imprecise.  Whether this new law has any affect on medical malpractice claims remains to be seen.

Twitter and Facebook Comments Fodder for Trial and Cross-Examination

The Secrets of Hispanic Surnames

A client asked me to help resolve an issue with a birth certificate in which the parents were Hispanic and the birth certificate misnamed the father’s surname (last name).  I realized that I did not know the first thing about Hispanic surnames and why there were sometimes two surnames and sometimes only one.  This was clearly the source of the mistake on the birth certificate.  The best and easiest to understand answer is found here.  I would summarize the information here but I would simply have to repeat the article.  It is fairly short and concise and easy to understand.  If you ever wondered or just need to brush up on the ins and outs, go see for yourself and be better informed.

Pleasant Grove Prevails in Summum “Seven Aphorisms” Monument Dispute

The United States Supreme Court, via Justice Samuel Alito in a unanimous decision, found that “it is clear that the monuments in Pleasant Grove’s Pioneer Park represent government speech.”  Summum’s lawsuit was an attempt to force Pleasant Grove City, Utah, to erect a monument containing its “seven aphorisms” and be given equal space with other monuments in the park, including a monument of the ten commandments, monument to the Sept. 11 terror attacks, a stone from the first LDS temple in Nauvoo, a historic granary, and a wishing well.

I agree, the Supreme Court got this one right:

“In sum, we hold that the City’s decision to accept certain privately donated monuments while rejecting respondent’s is best viewed as a form of government speech. As a result, the City’s decision is not subject to the Free Speech Clause, and the Court of Appeals erred in holding other-wise.”

In other analysis, “the arguments embraced by Summum were not really the right way to look at the case. The core issue is not private speech in a public forum but, rather, the power of government to express itself, in this case by selecting which monuments to have in a public park . . . .”

Utah Legislature May Materially Alter Medical Malpractice Claims

The Utah Legislature currently has a bill before it, SB 79, that would increase the standard of proof required in medical malpractice cases against health care providers, i.e., doctors and hospitals, to a clear and convincing evidence standard for all care provided in the emergency department.  The heightened standard would apply until the patient is stabilized and either admitted to another department or is discharged.  The heightened standard would also continue with the patient if transported to another facility.  If passed, emergency room physicians and hospitals would receive a broad protection from lawsuits since the prevailing “preponderance of the evidence” standard is the evidentiary equivalent of “more likely than not,” i.e., at least 51%.  See MUJI 2d CV117.  “For evidence to be clear and convincing, it must at least have reached the point where there remains no substantial doubt as to the truth or correctness of the conclusion” but proof beyond a reasonable doubt is not required.  MUJI 2d CV118.

Although the heightened standard above is the lightning rod issue part in the bill, the remaining changes could likewise be as monumental.  The bill also proposes changes to the status of medical experts by granting experts a temporary license to practice in Utah for the purpose of testifying “against a physician” (no mention of hospitals or other healthcare providers here) at the price of being subject to “the authority and disciplinary actions of the [Physicians Licensing Board].”  The bill could arguably be read to only apply to experts retained by plaintiffs but not to experts retained by physicians in their defense.  This is more likely a defect of the language and not the intent of the legislature, but it should be clarified to be sure.  The bill appears to respond to a recent case in which the Utah Supreme Court overturned a trial court in which the trial court had excluded a medical expert who was not licensed to practice in Utah (then again, maybe not).  In that case, an out of state expert was alleged to have provided medical care to asbestos plaintiffs in a hotel room and later expert opinion based on that encounter.  In any event it is the last part of the bill that makes a difference because the bill goes on to amend the physician’s “Unprofessional Conduct” section to include the following within the definition of unprofessional conduct:

(3) providing expert medical testimony:
(a) on a contingency fee basis in any action for injury or death arising out of the
provisions of or failure to provide health care services; or
(b) that is false or completely without medical foundation, including:
(i) without a thorough review of the medical records of the claimant;
(ii) without a physical examination of the claimant where appropriate or convenient;
(iii) without foundation in accepted science-based medical research; or
(iv) not based on current standards of care for Utah.

An out of state expert who is retained to provide expert testimony in a medical malpractice case against a physician in Utah will be subjecting him or herself to the jurisdiction of Physicians Licensing Board.  If an expert is found to be involved in “unprofessional conduct,” the expert may be charged with a third degree felony and/or fined up to $10,000.  The bill rightly aims to decrease the retention of experts who say whatever the attorney hiring them pays them to say.  Does it do more?  It could have a chilling effect on the ability of both doctors and patients to find out of state physicians willing to testify in a Utah case if there is a possibility of being dragged into Utah to answer an unprofessional conduct charge.  It is arguable that under the bill’s language an out of state expert’s opinion could be “completely without medical foundation” if it is “not based on current standards of care for Utah.”  What are the “current standards of care for Utah”?  Are the standards higher or lower than other states?  What about rural versus urban healthcare?  Does rural or urban Utah differ from rural or urban in some other state?  Do we want an expert whose medical opinion is not based on experience with “current standards of care in Utah” testifying about what the standards should be?  It seems both doctors and patients would lose a great source of expert testimony if experts had to either have experience with the “current standards of care for Utah” or educate themselves about Utah’s standards before testifying.  I like the idea behind the bill, but it needs some tweaking to get it right.

Wireless Access in Utah’s Courthouses

Whether you know it or not, you can use the court’s wireless access while at a number of Utah’s courthouses.  Feel free to break out your iPhone and surf away while waiting for the jury to return with your verdict (viel glück).  You will need three things:

1. Username for all courthouses: Pathway

2. Password: it changes weekly and is posted on the Utah State Law Library Blog or can be obtained from the State Law Library at 801-238-7990 or library@email.utcourts.gov.

3. Willingness to agree to the court’s Wireless Internet Usage Policy:

Utah State Courts offers wireless access to the Internet for users with their own laptops or PDAs. Utah State Courts recognizes the privacy of the user and does not monitor the information or sites accessed by users.

Security in an electronic environment such as the Internet cannot be guaranteed and users are warned that all transactions and communications are vulnerable to unauthorized use. Utah State Courts assumes no responsibility for any damage, direct or indirect, arising from users’ use of particular sites.

Utah State Courts has no control over information available through the Internet and assumes no responsibility for the content, availability or accuracy of information provided by other agencies or institutions.

Users must be sensitive to the values and beliefs of others when displaying potentially controversial information or images on computer screens located in public areas. Some websites or material may be blocked due to content.

All users are expected to use the Utah State Courts Wireless Service in a responsible and courteous way. By using this wireless service, you agree to this Wireless Internet Usage Policy.

I know your eyes glazed over when you saw “Wireless Internet Usage Policy” so here it is in a nutshell (remember those books in lawschool?): “some websites may be blocked” + “users must be sensitive to the values and beliefs of others” = “we know it when we see it so keep your porn in the privacy of your own home or we’ll ban you from using the wireless access service”.

The following courthouses have wireless access available:

American Fork

Farmington

Ogden District & Juvenile

Orem

Provo District & Juvenile

Salt Lake City (Matheson Courthouse)

Silver Summit

Spanish Fork

Tooele

West Jordan

Legal Research on the Cheap Part 2: Loislaw

Last week I posted a number of online locations for free access to Utah law.  I’m not the only tightwad when it comes to legal research: Locke Lord Bissell & Liddell, a national firm with more than 675 attorneys, recently issued a firm-wide directive that all non-billable legal research should be done on Loislaw, a Wolters Kluwer/CCH publication available on purportedly lower-cost flat-rate basis.  For many firms, including Locke Lord, the long-time standard has been to do all legal research on either Lexis or Westlaw charged at a per transaction or time-rate basis often resulting in higher costs.  In its firm memo (published in its entirety by ATL here), Locke Lord directs that only billable legal research be conducted on Westlaw or Lexis (with an appropriate billing number) and where possible Loislaw should be used for billable research.

The bottom line is that although Lexis and Westlaw cannot always be replaced for certain legal research, it can be for some, if not most, legal research at a lower cost either with Loislaw or free online resources.  Not mentioned by Locke Lord or ATL, however, is the need to remain efficient.  There is no sense in stepping over a dollar to pick up a penny.  If the alternative legal research (free or otherwise) is too cumbersome, inefficient, or does not have the resources sufficient to permit accurate and thorough research then it threatens to waste an attorney’s time while on the billable clock.  The result would likely be more billable time spent researching which would eviscerate any cost savings.  And that is the bottom line.

The Hills Have Eyes: Do You Have Workers Compensation Insurance?

Ever wonder whether your employer has workers compensation insurance?  Or, if you are an employer, is your insurance up to date and on file with the Utah Labor Commission?  Look no further than the Utah Labor Commission’s free Compucheck web service to answer your questions.  From the free advice file: make sure you have insurance, otherwise the Labor Commission will crush you like a steroid homerun.  “Fear can hold you prisoner. Hope can set you free.”

Utah Budget Crisis Update: Court Budget Cuts

Utah State Bar President Nathan D. Alder, reported today via email:

The State Court has received an 8.5% total cut for FY’09.  This is dramatic and very concerning.  Proposals are being floated for an additional 11% to 19% cut for FY’10 which will only further erode our Court system.  I am deeply worried about this situation.  We can already see consequences from changes to our Court system; we must soon reverse these negative effects.  Utah can ill-afford to let our system of justice slip any number of notches below what our Constitution and democratic society requires and so rightly deserves.  I encourage you to read Chief Justice Durham’s State of the Judiciary Address which was emailed to all Bar members and has been posted at www.utahbar.org.  I encourage you to discuss these concerns with Legislators and other elected officials, decision makers, colleagues, neighbors and friends.  We are advocates for the Courts and must now step up to protect our judicial system from further insufficient funding scenarios.

The net effect of the size of budget cuts imposed and proposed for next year likely mean a longer wait for trials or decisions by courts, longer wait times in adult and juvenile criminal cases, furloughed court employees (at least temporarily), higher filing fees, fewer court hours or days, closure of some courthouses, no new judges to replace openings, longer lag time between filing and report on the docket, and fewer staff at the courts.  Not a happy prospect.

SLCBA: Justice Tongue update

If you are a member of the Salt Lake County Bar Association then you are likely familiar with “Justice Tongue,” a regular contributor to the Bar & Bench quarterly newsletter published by the SLCBA.  In the recent Bar & Bench, I found that Justice Tongue dispensed a bit of good advice to young lawyers (those “pampered, directionless, underachievers who would conceive that ‘managing partner’ is an ‘entry level position’”):

1. The practice of law is a profession, not a business.  (Debate ensues . . . which came first the chicken or the egg?  Does being a professional keep you in business or do paying clients?  Or, does being a professional guarantee you will have paying clients to keep you in business?  Or, does being a lawyer mean more than making money and if you actually make money at it you can call it a bonus and consider yourself lucky?)
2. You must always be proactive.
3. You will be paid for thinking, planning, researching, studying, and effectively communicating.
4. Your rewards and satisfaction in the practice of law will be in direct proportion to your commitment and effort.
5. Above all, retain your integrity.  (Amen.)

Does Your Smartphone Adequately Protect Client Communications?

Nearly every attorney I know has a phone that can access email, edit documents, and receive text messages and many can carry reams of electronic documents.  If you can access your work email then it is fairly certain that your client commucations are at risk.  It was recently questioned whether President Obama would give up his Blackberry when he took office (apparently he has not) in light of the Presidential Records Act and security concerns.  If the President’s smartphone is a security risk to the country’s national security, is it a risk to your clients’ privileged communications?  According to a law.com article and common sense: Definitely.  Don’t worry, however, there are some things you can do to moderate the risk significantly:

• Password protect your smartphone.  You don’t need a dramatic 15-character password to thwart the bulk of the would-be information thieves.
• Limit the number of email your smartphone stores at any one time.  Adjust your phone’s settings so that it is not storing your entire inbox, outbox, trash, work in progress, cabinet, etc.
• Establish a procedure in case of a lost or stolen phone.  You should know your service provider number in order to immediately cancel all service to the phone.  Some providers and phones are also equipped to disable the phone’s utilities remotely before any information is accessed.  Now is also a good time to review your organization’s lost or stolen phone policy.
• Old smartphones should be professionally wiped clean of any information.  Even if you remove your SIM card from a smartphone, the email settings and other access items can remain with the phone.  For example, I am aware of an attorney who sold his old smartphone on eBay and when the purchaser inserted his SIM card was able to access the attorney’s email account and send email.
• Finally, protect your smartphone as if it were your client file back at the office– it holds much of the same information.

“Hey, let’s be careful out there . . .”

Where to Find Utah Law for Free

Maybe you’ve tried looking for laws, statutes, rules, or regulations but you either do not want to pay a fee to Lexis-Nexis or Westlaw or you just have a defiant streak that tells you that such information should be free.  Whatever, here is where you can find the information on the web:

Current Utah Statutes and Constitution

Utah Administrative Code

Utah Rulemaking Law

Appellate and Supreme Court opinions since 1996

Utah State Bulletin (state equivalent of the Federal Register)

Bills before the Utah Legislature (since 1991)

Tips for Navigating in Troubled Financial Waters

Times are tight (duh!).  You or your clients may have debt, mortgages, or loans on the brink.  The folks at Utah Business (written by Steven L. Ingleby and Scott M. McCullough at Callister, Nebeker & McCullough) were kind enough to offer some tips to remember to which I have added a few notes for dealing with struggling clients:

• Recognize when you or your clients are in financial trouble and don’t procrastinate.  Are your clients keeping current on their bills?  Are you carrying an ever larger A/R balance (making you the de facto bank)?  The sooner you make the call the better off you will be—regardless which side of the debt you are on.  Communication with a lender early on will make a big difference to the lender if you want to try to restructure the debt.  Yes, there is the risk that the lender will know about your financial condition but in the current climate of bankruptcy and foreclosure, “lenders are keenly aware of their borrowers’ problems.  if your lender is, or can become comfortable with the belief that you can ultimately pay off the renegotiated loan, lenders may see that it is in their best interest to restructure your loan.”

• Be honest and accurate.  Oftentimes in order to avoid the short-term problem a borrower will be overly optimistic about their financial condition and chances of repaying a loan.  When dealing with clients who have ever-increasing outstanding bills, sit down with them and discuss the scope and goals of the work you perform for them and its value to their business.  Drill down to the core of the borrower’s or client’s problem and face the issues up front.  Borrowers risks later claims of misrepresentation, non-disclosure, and possibly fraud (assuming there is a policy to chase or a few nickels in your pocket) if they try to “fudge the facts.”  Also, the better information you have the better able you are to establish a workable and ultimately successful plan of action.  This is particularly true in litigation matters which may require expediting a more creative but less expensive/lucrative resolution (depending on which side of the case you are on).

• Lastly, don’t be afraid to bring in outside help.  For debt workouts, there are numerous professionals to assist including CPAs, attorneys, consultants and workout specialists.  Run some cost-benefit numbers and make a decision early on.  Lenders appreciate the third-party objective view.  In terms of assisting your client determine whether their present litigation will be successful (in terms of prosecution or defense) there are litigation services available to help make that decision.

Good luck.

Alternative Billing Strategies for Lawyers

The New York Times published an article today regarding the billable hour.  The article questions whether there is a trend towards eliminating the billable hour for lawyers.  The present economy appears to be a threat to lawyers billing by the hour when businesses are looking for ways to shore up budgets and insert some certainty into their business.  Are lawyers in Utah being pressured to find alternative ways to be compensated?  Some alternative billing strategies identified include fixed fee arrangements, fixed fee plus a successful outcome bonus, and lower hourly fees with an early resolution bonus.  What compensation alternatives to the billable hour have you used (other than a straight contingency fee)?

R. Brent Stephens– Rest in Peace

A great attorney, mentor, and friend passed away on January 3, 2009.  He will be missed.

Utah State Bar Launches findautahlawyer.org– Meh.

The Utah State Bar late last year launched a renewed effort to improve the visibility of its LegalMatch program as well as a search engine to help the public find a lawyer in Utah.  The website, findautahlawyer.org, is a rebadged extension of the official Utah State Bar web site and matches its design and bland, subdued tones.  I am not an art critic nor have credentials from the University of Chicago School of Art, but I can “call ‘em like I see ‘em” and the site does not speak to me like, say, this one or this one.  The site essentially tells a visitor that a search for a lawyer can be initiated in one of four ways (not including the LegalMatch option).  Why not present the four options in text boxes into which a visitor can immediately start typing?  Or perhaps choose LegalMatch as the only option and incorporate all of the options into it.  The simpler it is the more successful it will be.  Eliminate any extra steps or pages to maneuver.  Also, remove the state bar login boxes which tend to confuse visitors into thinking they need to login when they don’t.  Remove all of the bar-related items cluttering the sides of the page– this site is supposed to be for the public, not for bar members.  Lawyers know where the main bar site is and a simple logo button is sufficient to direct the public/lawyers to the main site.

I have been typically impressed with the work of the technical staff at the bar, however, this site leave much to be desired in simplicity, accessibility, and usability.  It reads more like a legal brief than an public-friendly invitation to find a lawyer.

Have Evidence of Criminal Activity? Here’s Your Chance to Air it in Secret

Pursuant to Utah Code Ann. § 77-10a-1, et seq., a panel of geographically diverse judges will meet in Moab on January 15, 2009 to take testimony from the public about alleged criminal activity and will determine based on the testimony whether a grand jury should be impaneled.  The panel will take testimony in secret.  The panel will only meet every three years, so if you have information about an alleged crime, now is the time to speak up.

Happy Festivus!

Today, December 23, is the self-proclaimed modern holiday “Festivus: The Holiday for the Rest of Us.”  Seinfeld popularized this holiday in the 1998 episode “The Strike”.  The Festivus tradition includes the ritual of the aluminum pole (i.e., utilitarian Christmas tree), the airing of grievances, and feats of strength.  Also, be wary of any unforseen and unwanted “miracles”.  So, tonight as you sit around your feast of spaghetti and meatballs, remember to tell everyone how they have disappointed you in the past year.  Then, when everyone has had a chance to channel their inner Sam Kinison, its time to challenge the head of the household to wrestle and, once he or she is pinned, Festivus is over until next year.  Let the festivities begin!

Salt Lake County Bar Ethics Luncheon

In case you missed it (which is likely since seating was limited), the Salt Lake County Bar Association together with the Utah Minority Bar held a luncheon and ethics CLE on professionalism and civility.  The panel members included Third District Court Judges Judith Atherton, Michele Christiansen, Vernice Trease, and U.S. Bankruptcy Court Judge William Thurman.  Overall the hour passed quickly and painlessly (for the most part) and was highlighted by a moderately spirited discussion of appropriate brief commentary.  The gist of the discussion was: know your judge and write to him or her.  The audience consensus appeared to be that if you think your judge will find your flippant analogy to O.J. Simpson or Britney Spears appropriate then go ahead and use it.  Above all, however, use your discretion and think about your reputation.

One comment from Judge Trease, however, gave me pause: she said that her clerks often relay to her questions and comments from counsel (we knew that) and stated that counsel’s ex parte comments or questions to the clerks were contrary to the Rules of Professional Conduct.  Some of the example questions included questions about the judge’s disposition towards certain motions and questions about her preferences and quirks.  Do you perceive this contact with the court clerk a this as a problem or a violation of the Rules?  Rule 3.3 and 3.4, Utah Rules of Professional Conduct, do not appear to bar ex parte contact with clerks.  Ex parte contact with the “tribunal” appears limited to the judge and not his or her clerk (Rule 3.3) and requesting information from the clerk does not appear to violate any fairness doctrine (Rule 3.4) since the same information is available to all parties.  Is the issue one of perception or is this a real problem that should be dealt with by the courts or the bar?

Second District Accepting Snail-Mail Comments on its Court Nominees

Five brave attorneys have been nominated to replace retiring Judge Parley Baldwin: Catherine S. Conklin, Second District Court Commissioner; Martin Custen, private practice; Mark R. DeCaria, county attorney, Weber County; L. Dean Saunders, deputy county attorney, Weber County; and Gary R. Williams, Ogden City Attorney.  You are invited to comment before 5:00 p.m. December 26, 2008.  The public is free to comment on the nominees by sending comments to the Administrative Office of the Courts, P.O. Box 140241, Salt Lake City, UT, 84114-0241.  My only question is why the Nominating Commission only accepts comments via mail at a PO box (especially with a time deadline)?  There must be a more economical (and earth-friendly) way to accept comments . . . hmmm. . . like online!  If you would like to comment on the above nominees, feel free to do so below.

Your Bar Commissioner Petition Is Due February 1, 2009

Get signatures from ten of your best Utah State Bar pals (assuming they are all in good standing with the bar and meet the residency requirement) and file your petition by February 1, 2009.  Your active involvement in the bar is appreciated.  Good luck!

Proposed Federal Civil Rule Changes: Rules 26 (experts) and 56 (summary judgment)

The Federal Civil Rules Advisory Committee has issued a report and has begun conducting hearings concerning two proposed rule changes related to the ever-important Rule 26 regarding the disclosure of experts and related testimony and Rule 56 regarding briefing motions for and oppositions to summary judgment.  The Civil Rules Advisory Committee report can be found here.

Some highlights in the proposed changes include:

Rule 26:

The work-product protection is extended to an expert’s draft reports and to attorney communications with the expert except as to 1) expert compensation, 2) facts or data provided by the attorney that the expert considered in forming his or her opinions, and 3) any assumptions provided by the attorney on which the expert has relied.  Experts would be required to disclose all “facts and data” considered by the witness in forming his or her opinion and not all “data or other information”.

Disclosure of expert witnesses who are not required to file an expert report (such as treating physicians who may provide both fact and expert testimony) would include the subject matter of the witness’ expected expert testimony and a “summary of the facts and opinions to which the expert is expected to testify.”  Apparently some courts have taken to requiring the extensive expert reports from all witnesses from whom the court might be expected to hear expert opinion at trial.

Rule 56:

It is proposed that a memorandum opposing summary judgment under Rule 56(c) set forth all of the disputed facts found in the movant’s memorandum—which appears to be an adoption by the federal courts of the same procedure found in the Utah Rule of Civil Procedure Rule 7(c)(3)(B).  I.e., nothing new here.

The remaining changes appear to be stylistic or attempts to reconcile the various federal rules for consistency.  Note, however, that the committee took nearly two pages of its commentary to address the dispute raised in the 2007 Amendments to Rule 56(a)’s change to whether a court “shall” or “should” grant summary judgment in the absence of genuine issues of material fact and entitlement as a matter of law.  Others have also voiced their opinion on the 2007 Amendment.

Utah U.S. District Court Tests “E-Summons”

The United States District Court for the District of Utah is testing a procedure in which a summons can be issued electronically.  Currently the procedure is to either file everything (complaint, cover sheet, check, and summons) in person and have the clerk issue the summons or file nearly everything (complaint, cover sheet, and check) electronically and visit the court clerk for the issuance of the summons.  According to U.S. Magistrate Judge David Nuffer, the court has been testing an “e-summons” procedure and form that looks like it may be implemented in 2009.

Court of Appeals Is Again Looking for a New Judge—Just Beware of the Senate

Unless you hadn’t heard (which is unlikely), the Utah Court of Appeals wants to fill a vacancy left by retiring Judge Billings.  The last candidate who tried to run the Utah State Senate gauntlet, Third District Court Judge Hilder, did not fare too well.  If you think you have an “in” with Senator Buttars or Valentine or have the proper “demeanor” to be an appellate judge—oh, and make sure you are not divorced—then feel free to apply for the position on the court of appeals.

Here’s what Judge Hilder said about your chances of getting a fair hearing before the Utah Senate: “I would strongly encourage judges and expert trial lawyers to apply. I hope they will get a fair hearing. I can’t say they will, but I certainly hope they apply.”

What do you think your chances are?

UPDATE:

The Utah Legislature has announced that it has suspended any recruiting efforts to fill Judge Billings’ vacancy due to budget restraints.  Fortune, Fate, or Destiny?

Blackwater

Blackwater defendants surrendered in Utah in hopes of having the trial held in Utah.  The defendants are separately represented by a number of various attorneys including former Utah U.S. District Court Judge Paul Cassell, D.C. attorney David Schertler, Maryland attorney Steven McCool, and others.  The defendants have been indicted in a case that has already been assigned to Washington, D.C., U.S. District Court Judge Ricardo M. Urbina.

There are a number of questions raised by the tactic of the defendants surrendering in Utah, including where is the proper venue for crimes committed outside of the United States and does the U.S. contract with Blackwater Worldwide provide the basis for jurisdiction and venue.  Certainly the venue question is relevant to one of the ultimate issues that the defendants will raise which is whether the Blackwater defendants can even be charged in U.S. courts for crimes allegedly committed overseas.  Indeed, the Blackwater defendants will want to hit the venue issue hard now for the very reason that venue has certain inevitable overlaps the question of jurisdiction.  In any event we will have a front row seat as this matter, at least preliminarily, plays out in federal court.  Stay tuned.

Your Utah Legal Community

The beginning of an era.  The start of something new for the Utah’s unique legal community.  This site is meant to be a combination of legal information, news, and opinion—both yours and ours.  Without your input the story is only half-told and information only slightly accurate.  We expect you to be active participants.  You may remain anonymous or you can identify yourself; it’s your choice.  Your comments will be lightly monitored (primarily for spam and patently offensive content), however, you are expected to be professional and courteous.  That said, let’s get started.