CJAC: Civil Justice Association of California

Op-Ed from CJAC President on Court Budget Cuts

By Todd Roberson on 08/18/2011 @ 11:48 PM

Tags: Courts

The op-ed below, "How to deal with unprecedented court budget cuts", by CJAC President Kim Stone appeared in Capitol Weekly today.

How to deal with unprecedented court budget cuts
By Kim Stone
August 18, 2011

Over the past couple weeks there has been some dire news on the major delays Californians can expect to see in our courts as a result of the most recent budget cuts. The 2011-12 budget cuts $350 million from the court system, the largest in state court history. An equally devastating cut is projected for next year, and plans for new courthouses are on hold as well, as lawmakers also shifted $310 million from a courthouse construction fund to help cover this year's shortfall. The San Francisco County Superior Court announced that its civil division will basically be shut down.

Funding for the courts has now been reduced by 30 percent over the last three years. The Civil Justice Association of California (CJAC) has consistently opposed these cuts. There are plenty of legitimate civil disputes that need to be resolved in court and Californians deserve a court system that can settle these disputes in a timely fashion.

But the budget decision has been made, and now we have to figure out the best way to deal with it. Here are three suggestions.

First, don't make things worse! We cannot pass legislation that will throw more cases into a court system that can't handle the current caseload. This means the Legislature needs to reject proposals like this year's AB 1062, which would eliminate the long-standing right of immediate appeal when a lower court dismisses an arbitration agreement. Under this bill, when one party that voluntarily agreed to arbitrate any dispute changes their mind and wants to go to court instead, it will be easier for them to do so. The immediate right of appeal has been around for 50 years and without it, there will be more cases in court that should have been resolved through arbitration.

The leads us right into the second suggestion: look to existing alternatives. Arbitration is one of course, and is a fast, fair, and effective way to relieve pressure on the courts. The National Workrights Institute found that employees were almost 20 percent more likely to win employment cases in arbitration than in court, and consumer cases administered by the American Arbitration Association last only four to six months compared to 25 months in court, which also means lower attorney's fees.

Another alternative is greater use of expedited jury trials, created last year in AB 2284, which was authored by now-Senator Noreen Evans and received broad support from across the spectrum. In fact, the proposal to create expedited jury trials was supported by both CJAC and the Consumer Attorneys of California. With these one-day, binding trials, the costs and time of a trial - and therefore court costs -- are substantially reduced.

Third, we need to pass some reform measures that will keep frivolous cases out of the courts so there's more time to focus on the legitimate cases. One good example is this year's SB 603, authored by Tom Berryhill, which would have given judges greater ability to designate plaintiffs "vexatious litigants." A vexatious litigant is one who abuses the court system by filing meritless or harassing claims. Once labeled as such, that plaintiff must seek special approval before suing again. Current law only allows a vexatious litigant designation when there is no attorney present. Unfortunately, having an attorney does not stop malicious or baseless claims. This bill would have removed such an illogical limitation.

One area in particular where we see repeated filings is Americans with Disabilities Act (ADA) claims. In these "drive-by lawsuits", some plaintiff's lawyers seek only settlement money - rather than access improvements. In 2008, the Legislature established a process for pre-litigation conferences between two parties in ADA disputes, but unfortunately the settlement demands from unscrupulous lawyers continue. The Legislature needs to give greater consideration to proposals like this year's SB 783, authored by Senator Bob Dutton, which would have kept more ADA disputes outside of the courtroom by giving business owners a brief opportunity to make fixes before they could be sued.

These suggestions will not only help with the current crisis, they are also in the best long-term fiscal interest of the courts. Now is the time to reassess how our courts prioritize their time. We can help them weather the current storm and makes things easier on them in the future by making California less litigious.

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More on Orange County D.A.'s Fee Agreement

By Todd Roberson on 08/15/2011 @ 11:48 PM

Tags: Attorneys Fees, Plaintiffs Lawyers

Over the weekend the Orange County Register ran a follow-up story on the Orange County D.A.'s release of its fee agreement with a plaintiffs' attorneys firm - D.A.'s deal with for-profit law firm: Bad Public Policy?

CJAC President Kim Stone is quoted extensively explaining why these agreements ARE bad public policy.

In sum, "There's a big difference between private, for-profit lawyers and public prosecutors. Public prosecutors are supposed to be motivated by a desire for justice and doing the right thing. A private trial attorney is motivated to get his 20 percent. Those are very different things."

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Victory: Orange County D.A. releases contingency fee agreement

By Kim Stone on 08/12/2011 @ 11:48 PM

Tags: Attorneys Fees, Plaintiffs Lawyers

CJAC members and friends,

I wanted to inform you that, at our urging, the Orange County District Attorney's Office finally released its contingency fee agreement with a plaintiffs' attorneys law firm.

This is a major victory for CJAC -- and I'd like to share some background that will help explain why.

In March 2010, the Orange County District Attorney, Republican Tony Rackauckas hired plaintiffs' law firm Robinson, Calcagnie & Robinson to prosecute Toyota for selling cars that allegedly accelerated uncontrollably. This is a potentially enormous case - the D.A. said he will seek the maximum penalty of $2500 per violation - multiplied of course by the hundreds of thousands of Toyotas sold in California.

The lawsuit provoked some controversy in Orange County - nearby is Toyota's North American headquarters in Torrance. The local paper, the Orange County Register, urged the District Attorney to release the agreement-but Rackauckas refused. On August 9th, CJAC submitted a 7-page letter to the D.A. asking for the contingency fee agreement to be released to the public and explaining why the reasons for the D.A.'s prior refusal were invalid.

Within 24 hours the D.A. complied with the request.

CJAC is thrilled that our letter was persuasive enough to convince the D.A. to release the fee agreement. Although we believe it is bad public policy for public prosecutors to partner with for-profit contingency fee trial lawyers, if prosecutors choose to do so, at the very least they should disclose the fee arrangements.

CJAC's position is that public prosecutors are different kinds of lawyers than contingency-fee trial lawyers. Public prosecutors are powerful government lawyers whose job it is to do the right thing; prosecutorial ethics impose strict requirements upon prosecutors. Contingency-fee lawyers, on the other hand, are motivated to get as much money as they can. One can imagine a situation where a prosecutor, in the interests of justice, might use the powers of his or her office to compel a company to change its practices or to do something differently even if that meant that the company would pay less in a settlement. But a contingency fee trial lawyer - who gets a percentage of the overall award - is only motivated to increase the amount that the company pays. To a carpenter with only a hammer, every problem looks like a nail.

CJAC hopes that other prosecutors will refrain from hiring contingency fee lawyers to prosecute the public's cases - but if they do, we certainly want to see the fee agreements.

On an interesting side note, CJAC is pleased to see that the law firm, of which Mark Robinson is a partner and is also past president of an attorney association staunchly opposed to voluntary binding arbitration to resolve personal injury, product liability or employment disputes, agreed as part of the contract to resolve any disputes they have with the D.A. over fees by binding and final arbitration.

For more, we urge you to take a look at the OC Register's Watchdog Blog, which has chronicled the story. You can also read about in The Recorder and Business Law Daily.

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CJAC Issues Public Records Request for Orange County D.A.'s Contingency Fee Agreement

By Todd Roberson on 08/09/2011 @ 11:00 AM

Tags: Attorneys Fees, Plaintiffs Lawyers

Today CJAC sent a public records request to the Orange County District Attorney's office regarding the fee agreement it entered into with the Robinson, Calcagnie & Robinson law firm (a plaintiffs' attorneys firm) to prosecute the unintended acceleration claims against Toyota. The Orange County Register previously filed a public records request over this contract, which the D.A.'s office rejected in March of 2010. CJAC's request, which you can read here, explains why we disagree with the D.A.'s claim that the contract does not have to be released to the public.

CJAC has always had concerns with public prosecutors entering into fee agreements with private attorneys because they allow personal financial gain to become a motivating factor in the pursuit of cases, instead of government attorneys impartially determining what is in the public's best interest.

Private contingency fee lawyers are motivated by making money. Government prosecutors are given more power than other attorneys -- they have the power of the people -- because they have greater responsibility, a higher ethical code than do other lawyers. If a government prosecutor hires a plaintiff's lawyer on a contingency fee basis, the public should know what the agreement is for. Who gets what in the event of a settlement? What if the best public policy involves a change in practice but not a large monetary award?

We hope the Orange County D.A. will reconsider and release the agreement, but if not we are prepared to ask a court to compel the D.A. to do so. The D.A. is a public office, supported by public funds, and the public has the right to know how that office's responsibilities are being carried out.

The Orange County D.A. will have 10 days to respond, and an additional 14 days if they want them. We hope they make the right decision.

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Op-Ed: Prop. 65 Bounty Hunters Hurt Small Businesses

By Todd Roberson on 08/08/2011 @ 11:48 PM

Tags: Plaintiffs Lawyers, Proposition 65

In last Friday's issue of the San Jose Mercury News, an op-ed by the President & CEO of the National Black Chamber of Commerce, Henry Alford, discusses the impact of plaintiff's attorneys taking advantage of California's Proposition 65.

As Alford writes, Proposition 65 - the Safe Drinking Water and Toxic Enforcement Act of 1986 - "has done a good job at keeping many communities healthy by preventing unsafe exposure to toxic chemicals."

However, the "bounty hunter" enforcement mechanism in Prop. 65, "has allowed California's all-too-eager trial lawyers and radical organizations such as the Center for Environmental Health and Consumer Advocacy Group to take advantage of small businesses."

He also quotes a recent editorial in the Latino Times that stated, "the bounty hunter provision essentially has turned a handful of trial lawyers in the state into deputized attorneys general with the power to engage in what is essentially legalized extortion of small businesses."

Click here to read Alford's op-ed, and here for another recent blog posting on plaintiff's attorneys taking advantage of Prop. 65.

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