It started with a political noise machine.  Before their appointments to the U.S. Department of Justice, it seems that several current DOJ lawyers defended Gitmo detainees on a pro bono basis.

Apparently former Vice President Cheney’s daughter, Elizabeth Cheney, is connected to the group that posted this YouTube video smearing lawyers who dared to represent Gitmo detainees.

It’s a bit shameless because Ms. Cheney apparently employs a double standard on terrorism.  It seems amazing that her group attacks Department of Justice Lawyers.  Remember the white supremacist who attacked the Holocaust museum, killing innocents? Ms. Cheney held forth on that one, discounting the connection between “political discourse,” terrorism,  and the white supremacist who shot and killed people there.

Her attack on lawyers who served the system annoyed me to no end. That’s why I was heartened to see this video clip of former Whitewater Special Prosecutor Ken Starr explaining why Cheney and her ilk are so very wrong.

Let’s be clear.  Those who slaughter innocents should be tried. And if convicted they should be punished. But let us not forget that we pride ourselves as being a nation founded on the rule of law.  I suppose Ms. Cheney falls victim of that great myth that anyone accused must be guilty. So if that’s true, had her father been indicted for war crimes, would she simply agree that he was guilty? Of course not.  That can’t really be different because this is a hard case. We either presume innocence, or we don’t. No double standards. No special exceptions for accused terrorists.

Those who presume that anyone at Gitmo is guilty are taking the government at its word.  Call me crazy, but I don’t think that’s such a good idea.  I prefer trials. With evidence. And judges.  Yes, I am totally old fashioned.

Rev 10 March 2010

This is the second part of a three-part series on what Oregon consumers need to know when dealing with injury claims. In case you missed it, here is  Part 1 . And should you need more information, here is Part 3.

So as I noted in the first post, if you need this information for yourself or a loved one, you’re in a tough spot. Here are a few more  things that consumers need to know about Oregon injury claims: 1. Most  cases settle; 2. The ability and willingness to go to trial matters; and 3. We have to learn to live with uncertainty.

1. Most cases settle.

The reality is that only a few cases go to trial. The cases that go to trial tend to fall into two different categories. The first group involves cases in which one side has mistakenly evaluated the case.  The second category include cases in which settlement is too costly.  Let’s look at both.

Examples of the mistake in evaluation often occurs because one side doesn’t understand the facts or–perhaps–one side is unable to accurately evaluate the strengths and weaknesses of their case.  When, for example, one side doesn’t know about a key witness or document, they may incorrectly evaluate the case and go to trial.

Some cases simply won’t settle because one of the parties won’t agree. Sometimes that’s because of emotion. Sometimes it’s rational, but in any event the exceptional cases go to trial. Examples of this type of case include situations in which a corporation knows that settling this case will open them up to many others. So they fight on.

2. The ability and willingness to go to trial matters

Some lawyers are afriad of trial, and many lack the experience and resources to successfully try cases. While it looks easy on TV, trial demands special skills. To succeed, a trial attorney must be able to succeed in very different areas all at once. The lawyer must be able to argue the law to the court. The attorney must be able to talk to juries. The lawyer must be able to question and cross-examine witnesses.  These are learned skills that take years of study and experience to master. This is espeically true when a case involves complicated technical questions, tough legal issues, or sad and soul-aching injuries.

The insurance industry tracks lawyers, and when they don’t know someone, they’ll ask questions of their sources. Does the consumer’s lawyer try cases? How well? When a lawyer won’t go trial, the insurance adjuster knows that the case can be settled for much less because there is little risk of a large verdict. All this means that the lawyer who is prepared for trial and capable of trying the case puts their client’s case in the best position.

The willingness and ability to go to trial is especially important when a case won’t settle. I used the example of the corporation that can’t settle a case because of all the others out there from the same misconduct. They know that some lawyers won’t go to trial. So if they delay and refuse to pay, perhaps the consumer will get tired or the attorney–who never really intended to try the case–will quit. Either way, the corporate defendant has outlasted the consumer. That’s why willingness and ability matter.

3. Living with uncertainty

It’s been years since I rode a roller coaster. But the thing is that every roller coaster has that thing toward the end. You think you’re at the end. Maybe you can even see the station up ahead, and then–wham!–out of nowhere you drop and curve and go again. Likea roller coaster, the case isn’t over until the car stops and the bar releases you.

Those of us who represent consumers can generally predict timelines for cases. But how quickly a case goes depends on a number of things that are outside anyone’s control.

Case value is also a challenge. At the beginning is impossible to accurately value a case because the attorney doesn’t have all of the information. Over time, information comes into focus and we narrow it down and refine the value as we learn more.  It all takes time. At least at the early stage, there is a lot of uncertainty. For some, that’s a difficult notion. But for my part, I would rather consumers know so that we can all keep reasonable expectations.

Okay, that’s enough for this post. In Part 3, I’ll talk about hiring a lawyer in Oregon, including payment and contracts.

Politicians bowing to the infernal media noise machine appear to be caving on criminal trials for those accused of acts of terror. Gutless. The point is better made here at Defending People, one of my favorite law blogs.

Having never tried a criminal case, I have to disclaim any particular expertise in criminal law.  Even so, as an officer of the court and a believer in the rule of law, I have no doubt that these matters should be tried in court.  I don’t get the rants that I’ve heard on the other side of this. “We’re at war,” or “They don’t deserve these rights” miss the mark.  The same types of arguments were used by some in lame efforts to justify torture.

Let’s be clear about a few things.

For those who claim that we are the greatest country, a shining light of freedom, a model to nations, shouldn’t we live up to all of those exceptional traits? One of the foundations of our exceptional country is a system of justice that presumes innocence, demands proof, and punishes wrongdoers. And yet our politicians want to bow to the noise machine and take terror trials away from the courts.

Why should we play into the hands of those who paint our nation as corrupt? Because when we create exceptions for accused terrorists, we do exactly that.

Those who say that there should be an exception for terror trials are stepping down a very steep and slippery slope. I think there should be a special place in hell for those who set out to harm innocents. I imagine we all agree that that’s true of terrorists. And pedophiles. And greedy corporate executives who steal and defraud. And government officials who abuse their powers. If there is a terrorist exception to our justice system, shouldn’t there be one for all of these others?

“But that’s different,” some would say. The only difference is the label given by the government and the media.  I am unwilling to agree that our government and our media will act rationally. The other thing that’s interesting is that we’ve tried terrorists in criminal courts before. Or have we all forgotten Oklahoma City and Timothy McVeigh? As I recall, the system worked.

I don’t mean to take lightly these issues. To do so does a disservice to those who perished in the World Trade Center attack and those who survived. Nor do I mean to give aid and comfort to those who attack us. Not at all. The best revenge is carrying on bravely and as we have in the  past. To take these matters from the courts sends a message to those who are bent on terror that they can succeed at disrupting our society and sowing fear. To quote the idiot noise machine and the politicians who feed it, doing that means that the terrorists have won.

Sometimes the best legal advice to a recalcitrant client about their case is, “Stick a fork in it; it’s done.” And so it goes with KBR and the horrifying case of Jamie Leigh Jones.

When Ms. Jones claimed that she was drugged and raped while working in Iraq, KBR and Halliburton worked hard to keep her sexual assault case quiet by forcing it into mandatory arbitration. Fortunately, judicial wisdom prevailed, and KBR eventually lost the Jones case in the Fifth Circuit Court of Appeals.  And those who trail behind her have the benefit of Senator Franken’s great work in limiting mandatory arbitration for defense contractors.

But KBR is both angry and undeterred. As this this report explains, KBR now disputes Ms. Jones’ allegations that she was drugged and gang raped by co-workers. KBR reportedly made those points in its brief seeking U.S. Supreme Court review.

While Ms. Jones blew the whistle five years ago, KBR now says Ms. Jones fabricated her story. Odd if you think about it.  If KBR actually doubted Ms. Jones, wouldn’t they have taken that position years ago? And more to the point, given all the publicity over the rapes in Iraq, isn’t it fair to assume that they would want to fight this thing publicly and loudly?

I’ll admit to biases and a point of view. They come from two sources. First, I’m a father, a husband, a son and a brother. Every woman in my family has worked. When my wife and daughter go to work, I think it’s a modest demand that they not be subjected to sexual violence. Apart from that, I represent Oregon National Guard soldiers in unrelated litigation involving toxic exposures at Qarmat Ali. I am not intending to comment on that case–we’ll leave it to our proof.  Still, the KBR litigation posture is telling.

I suppose it’s just too much to demand that KBR simply accept that it lost and go to trial.  Owing to the genius of our founders, we have jury trials to allow impartial fact finders to decide cases. That right exists so that the Jaimie Leigh Jones’s of the world can force KBR to prove its defense or shut up.

David Sugerman