Toyota cover-up much worse than the acceleration problem

The Toyota acceleration problem has gotten a lot of press play. Most recent is yesterday’s story about a Prius that went berserk on a California interstate.  Looks like the engineering staff at Toyota doesn’t yet have this thing corralled.

One of the interesting things about the work I do representing consumers is that I’ve learned that juries are often fairly forgiving of institutions and mistakes. Here is what I mean. In court when businesses, hospitals, or government agencies admit to mistakes, my experience is that jurors are very understanding.

On the surface, it appears that Toyota is taking this, “mistakes were made” approach to defending the sudden acceleration cases.  But underneath is a story that so far has not gotten much play.

Apparently, Toyota has known for years about the problems with its cars. Not a big surprise.

But much worse, Toyota may have hidden the defects and may have violated all sorts of court rules and orders by hiding evidence and stonewalling in cases.  At least that is what one of Toyota’s former lawyers claims.

If this is true and if the story gets traction, Toyota is in major trouble.  Apart from sales issues, their liabilities will go through the roof when–not if–these Book of Knowledge documents are ordered produced.  Seems like their only hope is to completely discredit their former counsel.  I suppose it’s possible that everything he says in the linked CNN interview is fiction. But I doubt it.

The linked story talks about Toyota’s trade secrets.  Toyota thinks it doesn’t have to disclose those in injury cases. Toyota is wrong.

But as long as we’re on the subject, here is a trade secret from a consumer-side lawyer who toils in the trenches. Representing an injured consumer in a  design defect case is tough.  It’s hard to communicate the technical parts of the case. Leading the jury through the thicket of complexity to a just result for the injured consumer is a major challenge.  On the other hand, when that complicated design defect case becomes a case about hidden or destroyed evidence, the business is very likely in big trouble should the business choose to go to trial.

Ken Starr defends lawyers who represented Gitmo detainees

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

Oregon injury claims (Part 3)-hiring a lawyer

This is the third of a 3-part series on information for Oregon consumers about Oregon injury claims.  This might make a little more sense if you have reviewed the background in Part 1 (claims and the Oregon system) and Part 2 (case process and uncertainty) so that this makes better sense.

Like everything else in our complicated world, the practice of law has become more specialized over the years.  While some lawyers still manage to handle a wide range of cases, most limit themselves to one or a few areas. Personal injury tends to be one of those areas that requires a lot of special experience.  For that reason, you’re generally better served by someone with significant experience in the area.

There are several considerations in hiring a lawyer to handle an injury claim. Most Oregon injury lawyers are content to work on a contingent fee. Under a contingent fee system, the lawyer gets paid for his or her time based on a percentage of what the lawyer recovers for the client.  All of this should be in a written fee agreement that the lawyer explains to the client.

In addition to paying for the lawyer’s time, the client must also take responsibility for out-of-pocket expenses.  Oregon law requires that the client remain legally responsible for costs. The rule is based on the theory that that if the client must be take responsible for costs, there will be less lawsuits.

The client may choose instead to hire the attorney by the hour. While this is certainly an option, in my experience, most middle income clients can’t afford to pay a lawyer by the hour. That’s why the contingent fee/percentage  system works. Without it, access to the courts would be limited to corporations and wealthy people who can afford to pay legal fees by the hour.

The other advantage of the contingent fee is that it encourages your attorney to do whatever is necessary to get the good outcome. Contingent fee attorneys don’t have to worry about whether they’re over-billing or spending too much time on the case. That’s a good thing. As we say around this office, “Whatever it takes.”

Having said that, there are still times when you should consider hiring an attorney by the hour. When, for example, your case is simple and straightforward, an hourly arrangement may be appropriate.

Here is when the hourly arrangement is the better choice for consumers. In rare situations, your losses greatly exceed the amount of available insurance, and the attorney’s role is limited to confirming coverage and making sure the settlement agreement protects you. In that situation, the consumer comes out ahead by paying only for the time that the attorney spent on the matter.

As I said at the beginning of this series, this is advice I would rather that you not need.  Still, better to be informed so that you can make the best choices as you move forward.

Oregon legislature provides consumers with tools to fight bank fraud

Yesterday, the Oregon Senate passed legislation that provides Oregon consumers with a powerful tool to fight bank fraud.  HB 3706 amends the Oregon Unlawful Trade Practices Act so that banking and credit practices are now included in Oregon’s signature anti-fraud law.

The bill previously passed the Oregon House. But there were a few amendments along the way, so I believe that there will need to be a reconciliation process before the governor can consider it.

Rep. Nick Kahl pushed the bill on the house side. He’s proving himself a tireless advocate for working Oregonians. On the senate side, Sen. Suzanne Bonamici (D. Beaverton) championed the bill, continuing her great work for Oregon consumers. News report here. Our Oregon stood up for consumers on this bill. They deserve our appreciation.

The bill is important for consumers because it ends special rights for banks. The Unlawful Trade Practices Act sets modest standards that protects Oregon consumers from fraud. For years, banks and insurance companies have been exempted from it.  Why shouldn’t they be held to the same standards as car dealers and cable TV companies? If a bank engages in fraud, it should have to answer to consumers. This is not particularly difficult.

I’m especially taken by some of the grumbling from those who opposed this legislation. I guess its easy to forget bank bail-outs, CEO salaries, and the lack of meaningful banking reform.  The legislature provides consumers with modest protections against nickel and diming and fraud, and banking industry cheerleaders complain that it will simply cost banks more? Amazing. Maybe they were asleep or comatose when the economy melted down.

So at bottom, it’s a good day for consumers because Salem showed leadership.

Oregon injury claims-What Oregon consumers need to know (Part 2)

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.

Senator Wyden supports expanded benefits for Iraq war vets exposed to sodium dichromate

In Portland last week, Senator Wyden held a press conference to announce his support for expanding VA benefits for soldiers exposed to toxic chemicals in Iraq.  This arguably sounds bland.  It is not.

Senator Wyden and Oregon National Guard Vets

It’s important for a few reasons. Let’s talk first about history. Senator Wyden and I are a few years apart, but I believe that we both share the haunting memories of our Vietnam era vets exposed to Agent Orange. That was the impetus for me in joining this fight. I imagine it plays on Senator Wyden, as well. We owe our soldiers many debts. It is good that Senator Wyden sees the world this way and has committed to the fight.

I’ll be the first to admit that I don’t always agree with Senator Wyden. But that is little more than a footnote. I share his sense of mission and want to thank him for his commitment to these issues.

And that brings me to the other reasons why this is important. Senator Wyden’s commitment to these issues provides profound comfort to our injured vets. At one point during the press conference, Senator Wyden opened the mic to any of the sick vets who wanted to comment. A soldier, Sgt. (retired) Matt Hadley, moved toward the mic. He hesitated briefly–Matt is a soldier and not the kind of guy you would find hugging a mic at a press conference. He developed asthma and was forced to retire from the Oregon National Guard.

So as Matt moved to the podium, I wondered what he would say and do. He paused and then called out Senator Wyden by name. He delivered the most heartfelt thanks that anyone could imagine. I would have remembered it and reported it word-for-word, except that I was busy losing the struggle to remain dry-eyed. Sgt. Hadley gave voice to many in that brief moment, and what I heard was that our vets were thankful that they don’t fight alone.

The last reason why all of this is important is that Senator Wyden is taking up the mantle of leadership on these issues. Senator Wyden has been supportive of the vets throughout, but he has deferred to his colleagues, Senators Dorgan and Bayh.  Both are leaving the senate. So Senator Wyden’s leadership on this issue will be important.

All of this takes place as we move forward in the legal fight against KBR. Our soldiers protected KBR at the tainted Qarmat Ali site. And now they face a lifetime of health problems. As we look at these problems going forward, I’m struck by the contrast. Our soldiers did their jobs at Qarmat Ali. They didn’t complain about putting themselves on the line to protect KBR assets and personnel. And now that they are sick, I can’t help but grow angry at KBR’s refusal to cover our soldiers’ backs.

I guess that’s why God invented juries and why I have a job.

Update: Western Culinary Inst. Career Education Corp. class action moves forward

Recently, Multnomah County Circuit Court Judge Richard Baldwin signed this order (pdf) certifying an Oregon consumer fraud class action against Western Culinary Institute and Career Education Corp. It took us a while to get to an order. That’s not unusual in class action cases.

There is a quiet feature to his ruling that has an important impact on the case. Judge Baldwin refused Western Culinary Institute and Career Education Corp’s request to allow an immediate appeal of his decision.

That’s important for class members because each appeal can add years to the life of a case.  Judge Baldwin also ordered the parties to present a proposed notice plan, so the next step on the case should be notice to the class.

It’s good news for Western Culinary Institute alums who are drowning in debt.  For our part, it’s a great day. Brian Campf and I continue to push forward. It’s been a long road. There is still far to go. Onward.

If you attended WCI (now known as Le Cordon Bleu Portland) on or after March 2006, and you haven’t been in touch, feel free to use the contact information to connect. We can answer questions about the status of the case and also get you into our tracking system.

David Sugerman

Jury trials for accused terrorists

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.

Oregon injury claims–what Oregon consumers need to know (Part 1)

This is one of those posts that is read only by those who need to know. So first, I am sorry that you find yourself needing to review this information.

There is a lot of misinformation out there. This is a summary of what I’ve learned as an injury attorney in Oregon over the last two decades.

So let’s start with the big picture. Here are three things you need to understand about the Oregon injury system.

1. Nothing that happens here will leave you better off. You are not reading this to get rich and that’s a good thing because that won’t happen. The Oregon system is conservative.

2. The Oregon injury system shouldn’t be used for small injuries or near-misses. While near misses are scary and traumatic, the reality is that resources are limited and need to be available for those who are badly injured.

3. Injury claims stand or fall on three basic elements: 1) fault, 2) “causation;” and 3) harm. That means that compensation is available only if someone else was at fault, that fault caused harm, and the harm was significant.

So how do these principles apply? Motor vehicle collisions  provide a good way of illustrating the principles.

1. The system is conservative; you’re not going to get rich

Let’s look at the first one. If you were injured in a motor vehicle collision, you know this truth in a fundamental way. Given a choice between health and money, you would choose health every time. Put another way, you didn’t choose to be in this system. If you didn’t have to worry about your medical bills, or your damaged neck or back, you would be less stressed. And without the pain and limitations, you would be healthier and happier.

If your body worked like it did before the crash, you would be out there living your life and not dealing with the uncertainty that comes with injury. You certainly don’t think of this as a lottery win, and anyone who thinks otherwise probably doesn’t understand your life.

The lottery comments are particularly offensive. When you pay two bucks to play the lottery, you choose the entertainment and the fun. When an inattentive driver takes away your health,  you didn’t make a choice, and it certainly cost you more than two bucks.  Having said all that, Oregonians are thrifty by nature and rarely provide large money assessments when cases go to trial. They expect you to get by on less and to not be defeated by your challenges. You understand that, of course. The rare cases of large damage assessments simply mean that the consumer is badly injured. That’s cold comfort, at best.

2. Near misses

I imagine this has happened to you. A crazy driver blows a stop sign or a red light. Or maybe an inattentive driver turns in front of you. Through a combination of your vigilance, skill, and luck, you manage to avoid the collision. “That jerk could have killed me,” you think. And you’re right of course. Still, we don’t dabble in near misses. In Oregon, we expect you to gather yourself and go on. The same is true of trivial injuries. The bruise that heals in a few days isn’t worth troubling over. We teach our young kids to pick themselves up and dust themselves off and go on. The same is true here.

3. The three elements

To pursue a claim, we must prove that someone’s fault caused your harms and losses. Sometimes it’s obvious. A drunk driver runs a stop sign and plows into your car. You’re badly injured. Medical expense, time lost from work, and uncertain future of pain and disability result. That’s the easy case.

But cases are often harder than all that. Fault is often the easiest part of the case. It is proving the connection between the fault and the harms and losses and the extent of those harms that gets harder. So, for example, sometimes the injured person has been injured before. After all, few of us get through life without some prior history. The at-fault driver will often argue that your neck injury was “actually” something that existed before. The law says that the fact you were more susceptible doesn’t let the unsafe driver off the hook.  But it’s easy to sow doubts.

This is particularly challenging when, for example, a doctor makes an error and a patient suffers profound injury. The error part is generally the easy part of the case. But showing how the error led to the result is hard, especially when the patient was sick or otherwise compromised to start.

***

That’s enough for this post.  There are often many challenges in pursuing an injury case, so don’t mistake this summary for all the detail that goes into investigating and proving a claim. Want more? Part 2 is here. And Part 3 is here.

David Sugerman

Comcast late fee class action update–reflections of a consumer class action lawyer

For those interested, here is an update on the Oregon late fee class action against Comcast. The short version is that with my co-counsel, Tim Quenelle, I filed a class action against Comcast for its illegal assessment of cable TV late fees in Oregon.

We filed this case in July 2004. No, that’s not a typo. The case will turn six this summer. More background on the history of the case  here and here.

While Comcast disputes this, the class claims that Comcast illegally billed cable TV late fees in Oregon for years. Comcast claims that it’s done nothing wrong, or if it did, these were simply technical violations. Comcast has many other defenses. That’s their choice, of course.

So the latest–the update–is that Comcast is asking the court to allow it another appeal. This time Comcast wants to appeal the court’s decision to allow the class to seek statutory damages of $200 per person.  Comcast already lost an earlier appeal on whether it could require mandatory arbitration of these claims.

While no one has said this directly to me, it’s pretty apparent that the defense is really to drag this out as long as possible. In that respect, the litigation strategy is ironically the opposite of the speedy internet service that Comcast advertises.  But of course, Comcast makes those choices. I suppose it makes sense if the alternative is facing the prospect of payment of millions to Oregon subscribers.

To hear some self-appointed experts talk, consumer class actions are nothing more than stick-’em-up get-rich opportunities. The damages at issue in this case are calculated in the millions. Comcast billed late fees in six dollar increments. While few consumers lost large sums of money, when you total the numbers you come to realize that billing six bucks a pop from many people is a great way to make money.

Meantime, of course, the lawyers pushing the case soldier on. We get paid if and when we bring the case to a successful conclusion, based on a fee that the court must approve as reasonable and fair. And in the six years we’ve been pushing the case, we’ve invested time and money to move it forward.

If you doubt the wisdom of that, let’s consider the alternatives. We deregulated our economy beginning in the 1980s.  So regulation isn’t an option. Even so, I imagine we can all agree that allowing businesses to illegally collect money is unacceptable.  So what’s left, other than the courthouse, when corporations rip off consumers?

For Comcast Oregon cable TV subscribers who paid late fees, all I can say is that we’ll see this through to the end. That may be another 10 years, but so be it.  My son and I were talking the other day, and he related that he’s been accused of being stubborn. “You come by it honestly,” I replied. The reality of our world is that obstinate consumer class action lawyers are one of consumers’ best weapons against corporate greed running amok.