Frivolous

Describes motivation process for creativity with emphasis on intrinsic motivation by Corey K Katir

Here’s a novel idea for the Bush Administration: the next time a Virginia jury considers the proper amount to award a Virginia citizen severely injured by the carelessness of another, the jury should consider … the facts of the specific case … rather than the Bush Administration’s talking points for the insurance industry that are meant to prejudice a jury and keep it from its solemn duty to … yes, consider the facts of the specific case before the jury.

The Bush administration recently has added to its growing stockpile another claim based on false data. Treasury Secretary Henry M. Paulsen Jr. stated that “the broken tort system is an Achilles heel for our economy.” Paulsen based his opinion on a “study” by an insurance industry consulting firm.

It seems that the study includes the cost of the insurance industry itself – multimillion dollar salaries for insurance CEOs, rent on office buildings, and administration overhead – in the “cost” of the legal system. Business Week called the study “a wild exaggeration,” and The Wall Street Journal stated that the study “includes payments that don’t involve the legal system at all.” The Journal concluded that payments from a careless driver to somebody who has been legitimately wronged is not evidence of a “system run amok,”

Even the organization conducting the study admitted that “the costs tabulated in this study are not a reflection of litigated claims or of the legal system,” and the primary author of the study has said that tort-reform advocates’ use of the data has been “misleading.”

In May of 2005 the Economic Policy Institute (EPI), a nonprofit, nonpartisan think tank in Washington D.C. found that this report:

was one-sided, exaggerating the impact of the tort system and ignoring its benefits, and that evidence supporting them is shaky or nonexistent. Claims that the tort system harms the U.S. economy do not square with the data. In fact, there is a good deal of evidence to the contrary.

To be sure, there are frivolous claims, and frivolous defenses, in lawsuits of all varieties. But the Bush Administration has suggested that our tort system is fraught with frivolous claims. Perhaps the Administration should hold-up a mirror before accusing others of making repeated claims based upon false information.

No, Virginia, your jury verdicts for injured men, women and children are not excessive or “out-of-control.”

The American Tort Reform Association — “ATRA” — has published its list of “Judicial Hellholes” of 2006 … and, Virginia, you are not on its list. You are not even an “Honorable Mention,” and you are not even on the “Watch List.” One sure way to get on the list? Allow runaway jury verdicts.

No doubt Virginia’s absence from this list will come as a great surprise to Virginia jurors who long have been besieged with the cries of ATRA and the insurance companies and corporations to the effect that jury awards for the injured are “everywhere” out-of-control.

The insurance companies have dropped tons of propaganda over the landscape of America: propaganda that tells prospective jurors that every plaintiff is a malingering fraud and that every plaintiff’s lawyer is an “ambulance-chaser” … propaganda that does not tell prospective jurors that the insurance companies’ media blitz over the past twenty (20) or so years has saved them untold millions of dollars that under the law should have gone to compensate millions of victims of serious injury and wrongful death.

Virginia jurors still believe — against all the evidence — that runaway verdicts for the injured are rampant in Virginia and that they must take corrective action to even the scales of justice. Yet jurors understandably have no knowledge of actual jury verdicts in Virginia because the insurance companies that tell them of the horror stories of isolated runaway verdicts do not tell them the rest of the truth — of the flood of inadequate verdicts.

How do we know that jurors still believe that runaway verdicts are rampant? First, jurors tell us so after their verdicts. Second, ask a juror how many times he has heard of an inadequate verdict. His response: “never.”

Virginia jurors still believe that plaintiff’s lawyers are the promulgators of all of the lawsuit abuse. Yet Virginia judges and trial lawyers know that frivolous defenses in Virginia are at least as common as frivolous lawsuits. Ask a juror how many times he has heard of a frivolous defense. His response: “never.”

Virginia’s not being on this list of “judicial hellholes” is no surprise to Virginia judges or the trial lawyers for the plaintiff and defense. Each of them knows that an injured plaintiff in Virginia has one hand tied behind his back and two strikes against him when he first comes to bat in court. Candidly, this does not apply to victims of medical malpractice in Virginia, who have two hands and two feet tied-up, and who can be seen limping-up to the plate and then simply heading back to the dugout without taking a swing.

What can the Virginia juror do about this? Simple: rid yourself — honestly rid yourself — of the insurance companies’ propaganda … and simply listen to the facts of each case and follow the law in that case. This guarantees favor to no one … except “Lady Justice.” The law does not provide for your allegiance to the insurance companies’ self-interested propaganda. The law provides — no, demands — your allegiance to Lady Justice.

A Circuit Court Judge in Virginia recently commented to me and other counsel that the defense of sudden emergency is “dead” in Virginia. I think the Judge was being somewhat facetious in order to underscore the significance of a recent Virginia Supreme Court decision, but the question remains — does sudden emergency still exist in Virginia?

On September 15, 2006, the Supreme Court of Virginia announced its decision in Herr v. Wheeler , 272 Va. 310, 634 S.E.2d 317. In that case Wheeler loses control of her vehicle in heavy rain when it hydroplanes on the wet roadway and suddenly crosses into Herr’s lane of travel. Wheeler had known of the slipperiness of the roadway, and was being “cautious.” The Herr Court (at 288) found that the trial court erred in granting Wheeler’s request for a “sudden emergency” instruction, holding that:

[W]hen abnormal conditions are known and the heightened hazards they create are reasonably foreseeable, the standard of ordinary care the law imposes is higher. Where nature has created hazardous conditions on a highway, and such hazardous conditions are open and obvious, the operator of a motor vehicle is required to take care in the operation of his vehicle proportionate to the known dangerous condition of the highway.

Wheeler had admitted knowing the general dangerous conditions and argued that the sudden emergency was not the known generally dangerous conditions but instead was “one isolated spot” of standing water that she had not known about. The Supreme Court rejected Wheeler’s argument:

The occurrence of standing water on a roadway during a heavy rainstorm is simply another matter of common experience. The hazard this occurrence presents, including the possibility of hydroplaning, is one the driver of a vehicle along the roadway must anticipate and exercise reasonable care to avoid. Although Wheeler had not encountered standing water on the roadway as she traveled along Route 250 and may not have seen the accumulation of water at the point on the roadway her vehicle began to hydroplane, just as in Harrah, such an occurrence was not an “unexpected happening.”

So, is sudden emergency dead in Virginia? The answer is no. But in the many cases in which a defendant claims that weather conditions created a sudden emergency, that defendant better be able to say that “my day was sunny and bright when the sky suddenly opened-up right before my eyes and my car took on a life of its own.” If that defendant knew of the dangerous conditions generally and was merely suprised by an isolated spot of the same condition, he has a sudden emergency not of God’s making but of his own making. The Supreme Court did not drop the guillotine on the doctrine of sudden emergency, but the Court did drop the guillotine on any driver who knew of the dangerous conditions and comes to court claiming a “sudden” emergency.

Virginia defendants, take it from Virginia plaintiffs — don’t make excuses and don’t make frivolous claims.

TWO officials at Irish Banking Resolution Corporation (IBRC) have asked the High Court to release them from summonses to attend what they describe as a “frivolous and vexatious” case being brought by a client of the nationalised bank.

I was thinking about this lately… if Warner & Zimmerle, or I personally had a motto as a lawyer… it would be: Don’t be a stereotype. It harkens back to Google’s motto  - “don’t be evil“ Basically the point is … Continue reading →

I was thinking about this lately… if Warner & Zimmerle, or I personally had a motto as a lawyer… it would be:

Don’t be a stereotype.

It harkens back to Google’s motto  - “don’t be evil“

Basically the point is not to do what bad lawyers do. Not to be who the public often thinks we are. 

For some examples:

1. Be honest. Be honest with clients, juries, media, everyone. When you hide the truth or stretch the truth, it makes you a stereotype. 

2. Be humble. Often times the lawyers who are always shouting in commercials or on the internet about how great they are – aren’t that great. Be confident and proud to share successes, but don’t be a stereotype.

3. No frivolous cases. Don’t file a case without a really good basis for it. Hire expert witnesses who will give you the truth – not what you want to hear. Good lawyers don’t like frivolous cases – they get in the way of good cases, make it harder for good cases to get to trial, and poison the public’s opinion on the justice system in general. The same should go for defense attorneys. No frivolous defenses. Unfortunately, we see a lot of dumb defenses with no basis in fact. Don’t be that person.

4. Give back to the community. This should go without saying. 

I think this would be a good start for all lawyers. Greed, competition, fear and other emotions can sometimes jump in and cloud a good lawyer’s judgment. In those times, come back to this and remember who you want to be – and who you don’t. 

(Howard Zimmerle is a personal injury lawyer from the Quad Cities in Iowa and Illinois. He can be reached at hzimmerle [at] mjwlaw.com or 309-794-1660).

TWO officials at Irish Banking Resolution Corporation (IBRC) have asked the High Court to release them from summonses to attend what they describe as a “frivolous and vexatious” case being brought by a client of the nationalised bank.

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