California Bar Journal
OFFICIAL PUBLICATION OF THE STATE BAR OF CALIFORNIA - JULY 2001
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California Bar Journal

The State Bar of California


REGULARS

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Front Page - July 2001
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News / News Briefs
Two-year fee bill goes to governor
Janet Reno, low-cost MCLE highlight Annual Meeting
Stanley Mosk dies at 88
State Bar wins ABA's Harrison Tweed Award for pro bono, legal access, IOLTA efforts
Foundation will accept grant applications beginning July 16
Winnebago of justice serves those on the road less traveled
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Trials Digest
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Legal Tech - Matter management is not just for litigators
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Opinion
From the President - Public members bring fresh views
Holding judges accountable
Letters to the Editor
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MCLE Self-Study
Alcohol and the workplace
Self-Assessment Test
MCLE Calendar of Events
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Ethics update...
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You Need to Know
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Public Comment
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Discipline
Ethics Byte - Level field or a judicial practical joke?
Former DA disbarred for drunken-driving coverup
Attorney Discipline

OPINION

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Well, if you'll recall, Mr. Dalton, I warned you that this suit would be a gamble

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LETTERS

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State prop. caused P.I.'s pain and suffering

I enjoyed the June article on the reduction of personal injury suits since the '80s. I thought it was interesting that little attention was paid by the article to state Proposition 213 (3333.4 of the California Civil Code, which prevents the uninsured from obtaining pain and suffering damages).

In my opinion, it is Prop. 213 that has led to a huge downturn in personal injury lawsuits. I would guesstimate that business at the average P.I. firm has dropped at least 35 percent because of Prop 213.

In the eight months that I have been in private practice, I have had to refuse at least eight cases because of the accident victim's uninsured status.

Not only has Prop. 213 drastically reduced P.I. business from the uninsured, but by putting millions of extra dollars into the insurance company coffers that would have gone to uninsured auto accident victims, it has also allowed the insurance companies to fight even harder on, for instance, low property damage auto cases.

If Prop. 213 were to be overturned tomorrow, I would bet the money I could've earned on the earlier mentioned eight cases (in a non-Prop 213 world) that you'd be writing about a P.I. litigation upswing within the next 12 months.

Robert A. Reed
Mission Hills

Little pain, no gain

I read your article regarding the decline in the number of lawsuits with great interest and I heartily disagree. You attorneys never have lived in the real world. In the last two years, I contacted several attorneys in the Los Angeles area regarding two legal matters: One case involved a clear insurance bad-faith claim which two attorneys told me was valid but "too small" for them to take, and a toxic exposure about which three attorneys said, "It's too hard to sue public entities." Even though I am an experienced personal injury paralegal, I could not handle these myself due to money, time and proximity.

Additionally, as a paralegal occasionally taking new client calls, the basis for acceptance was "would we win and were the damages large enough" to make it worth our while. Ten years earlier, we would have taken nearly everything which had probable liability and some damages, and the occasional big win would tide us over. However, with the weight of the law favoring insurance companies and judges not responding to the defense's heavy-handed discovery tactics, it was only a matter of time before P.I. firms adjusted their intake guidelines to exclude smaller or risky matters.

Nancy Lee Wolfen
Carson City, Nev.

'Colossus' shrinks fees

I just finished reading the June article, "Big decline in lawsuits filed since 1980s," with incredulity. No-where in the article did it correctly state the reason for the decline in personal injury lawsuits. Possibly because only lawyers accepting cases with values exceeding $1 million or law professors who do not practice what they hypothesize were consulted.

The truth is, insurance companies have spent millions of dollars defeating consumer legislation such as state Propositions 30 and 31, which went down in resounding defeat despite being in the consumer's best interest.

Insurance companies tender nothing resembling fair and adequate compensation in personal injury cases, even where liability is undisputed and injury is well-documented. Rather, they rely on "Colossus," a computer-generated prediction of what a jury will award in any particular instance. It predicts, among other things, that a soft-tissue injury with reasonable treatment has a value of about $4,500 to a jury. If plaintiff's attorneys were previously wondering why offers are low and unreasonable, wonder no more.

By this letter, I hope the plaintiff's bar will become aware that such a computer program does exist and is pervasive throughout the industry.

Philip R. Sheldon
Tarzana

Practice equals CLE

I feel MCLE to be unnecessary, outrageously priced and the product of mistaken thinking. It ought not to be "put behind us" until it is dead, where it should be.

For the commission to compare MCLE with "similar programs for professionals, such as barbers and hearing-aid dispensers," is ridiculous. Lawyers study, refresh and review every time they handle a legal matter. The jealous mistress the law is requires constant legal education, research, study and discussion; thousands of hours, not eight, 10 or 12.

I object to the furnishers getting fat on a frustrating and needless exercise. I know of no other calling that requires regular and intensive study as that of the law - not barbers, not real estate salesmen, not anything else.

Robert N. Fraser
Santa Ana

Shocker: Bar ignores us

Why weren't we surprised to find that a panel handpicked by the State Bar would ignore the opinions of lawyers around the state and call for continued mandatory education and more hours of MCLE? The bar has ignored what lawyers thought on this issue for years, and now their panel has seconded the motion. What a shock!

The fact is that MCLE is a colossal failure. It has done nothing to upgrade the practice of law in California - its only legitimate objective - and there is no possibility that it will do so. MCLE does give people who like to tell other people what to do - our self-selected bar administration - an opportunity to do so, and to continue running an expensive bureaucracy to enforce their will. And it provides a way for providers to make ridiculous amounts of money while providing classes which would need to improve greatly to achieve mediocrity.

The one thing no one ever bothers to demonstrate is that it actually has made lawyers, as a group, better at what they do. Your article, following the bar association line, implies that we should take more hours than other professions. But the fact is, we are the only profession named that requires any graduate study at all. It is ridiculous to compare this with hearing-aid dispensers or barbers or accountants or real estate brokers.  

John Marshall Collins
San Jose

Apples and oranges

The renewal of the MCLE debate continues to ignore the primary act of law: As a profession, it requires continuous legal research. Every county has at least one law library, which is used more by attorneys than lay people. As a litigator, I spend more than five hours a month researching law.

These facts are simply not true for doctors, accountants, real estate agents, barbers or pest control personnel. Your average law office has more research material than all the above professions combined. We don't need more classes.

Instead of comparing apples to oranges, the State Bar should begin promoting the fact that continuing legal education is a daily component of any law practice. When was the last time your doctor said, "I need to research that issue?"

David L. Hagen
Pismo Beach

Fire it up, your honor

I was disappointed in the recent announcement seeking a presiding judge and two hearing judges for the State Bar Court, where minimum qualifications for the positions include at least five years' membership in the State Bar with no record of discipline.

The "discipline" prohibition may discourage some of our most able members. Frankly, I think most of our membership would feel more comfortable with a judge who, sometime in his or her career, has been the target of a complaining client, or who has some long-ago misdemeanor conviction that sparked bar action.

The governor often appoints imperfect people and the voters often elect candidates with some blemish. Discipline should be merely a disclosure, not a bar on application. If we are truly to be judged only by perfect people, let's require applicants to also be members of the clergy, and to file an affidavit that if they smoked, they did not inhale.

Michael Schaefer
Las Vegas

The CJ's snake pit

When I read Chief Justice Ron George's two-page spread about gender bias - never proposition opposing counsel, he might get hysterical - I wanted to run up to the chief and gush, "You're my hero!" Fearing such a gesture might be misinterpreted, I write this instead.

The judicial system over which George presides is a fetid snake pit of gender bias. No longer the irritating kind that has become so politically incorrect, but the kind that destroys the lives of children. Yes, I'm talking about the "family court system."

These so-called courts issue restraining orders wholesale which forbid fathers to even communicate with their children - forget about custody. The orders are stamped out without notice, hearing or any attempt to tailor them to the facts of a particular case. While 95 percent are issued against fathers, only 5 percent are issued against mothers.

Mom wants one, she gets one. Once issued ex parte, they become a status quo which the safe-playing judges decline to disturb.

When I wrote the chief a few months ago to suggest that restraining-order abuse be addressed by the Judicial Council, an underling wrote back to inform me such a thing couldn't possibly be done.

I wanted to cry, but I was too busy being angry about all the kids who can't even get a birthday card from their dads.

Laurance S. Smith
Sacramento