The case is Fent v. State ex. rel. Department of Human Services, 2010 OK 2, and addresses the issue of whether 28 O.S. § 152(D)(E) and (F) as well as 28 O.S. § 152.1(B) are constitutional because the statutes require a portion of fees paid to the court clerks in civil actions be credited or deposited to the accounts of certain non-judicial programs.

Mr. Fent argued that any fees charged in civil cases which were credited to non-judicial programs, in this case the Department of Human Services and the Attorney General’s victim’s fun, were unconstitutional because they denied litigants access to the courts. The Court agreed with Mr. Fent, holding that "the open access to the courts is violated if persons seeking to litigate in court are assessed and required to pay for programs that have no relation to the services being provided or to the maintenance of the courts. While litigants should certainly have to bear a portion of the costs of operating the courts, they should not bear the burden of funding unrelated state programs."

The Court analyzed the rulings of other states, and prior holdings, noting that in some instances any fees charged were for use in maintaining the courts or court system. The Court reasoned that:

These three programs, while laudable, are not related to services provided by the courts for which reimbursement to the State is permitted by imposing fees on those making use of the courts. These three programs are not for the maintenance or support of the court system, nor do they defray expenses of the court system. Though such programs may indisputably be worthwhile, and the provision of such services necessary, they do not serve a judicial or even a quasi-judicial function . . . . The three programs are social welfare programs under the operation of the executive branch of government. The worthiness or the desirability of these programs is not the issue before the Court today. These programs have been deemed worthy of creation by the legislature. It is the funding of these programs through the use of fees imposed on litigants that is impermissible. The legislature has imposed a fee or tax on those making use of the courts and has directed the court clerks to deposit those funds to the credit of these programs. The challenged statutes require the judicial branch of government to collect monies to be used to help fund social welfare programs operated by the executive branch of government. The courts may not be a tax collector for the executive branch of government.

Now, really we’re only talking about $33.00, hardly a significant sum. However, when you compare the fee to the overall cost of filing a case, the removal of this fee could reduce the cost of filing a lawsuit. Currently, the fee to file an action over $10,000 is $205.30. If you remove the 33.00 fee, now you’re talking about a cost of $172.00 to file a lawsuit. This is a generous savings to the Plaintiff, meaning that when and if a recovery occurs, more money returns to the party instead of to costs.

Unfortunately for prior litigants, the Court’s decision doesn’t require court clerks to refund money. However, for any future filings, the cost of the litigation will decrease.

I believe as the Court does, and that although some worthwhile programs miss out on the funding this provides, it is the legislature’s duty to fund these sorts of programs, not the injured individual who files a cause of action.

Open Access to Courts is a post from: Oklahoma Legal Issues. You can read the original post by visiting our site. Please visit our homepage for more information about our law firm. Absolute Legal Services, LLC is an Oklahoma City law firm helping people with legal issues in personal injury actions, consumer claims, immigration, and social security. Please see our services page for more information.

I think this is a stupid rule, but who am I to judge? After all, what person doesn’t realize that someone who is raving about a product or service is probably getting paid to rave.

Well, here’s a link to a great website that makes using the disclosures easy. They have copy-and-paste links to 6 different disclosures, based on the type of financial gain the reviewer received.

Note: I have not received any compensation for writing this content and I have no material connection to the brands, topics and/or products that are mentioned on this blog. We do not accept payment for reviews, although we accept suggestions of products, services, websites.

Mommy Bloggers Beware is a post from: Oklahoma Legal Issues. You can read the original post by visiting our site. Please visit our homepage for more information about our law firm. Absolute Legal Services, LLC is an Oklahoma City law firm helping people with legal issues in personal injury actions, consumer claims, immigration, and social security. Please see our services page for more information.

Here’s a list of the most pervasive ones, and their effect on the legal system, and your ability to address your issues:

Expert Affidavit

Right now, if you’re injured by someone’s "professional negligence," you can sue the doctor, lawyer, or other professional for malpractice. On November 1, anytime you’re wanting to sue for medical or professional negligence, you’ll need to get an affidavit from another professional linking your injuries to the professional negligence. This requirement will hinder a lot of people from seeking compensation for their injuries. There will be some problems finding another professional expert to testify and affirm that the actions of the negligent party caused serious injuries. Certainly clearly negligent cases will meet the threshold, but other cases that depend on additional discovery and testimony won’t.

Cap on Non-Economic Damages

The legislature opted to cap non-economic damages (those damages not related to medical bills, car repairs, or your paycheck) at $400,000.00, unless you can "bust-the-cap" by showing egregious conduct (my words, not the statute’s). This conduct must be so heinous, that would justify making the change.

Jurors evaluating these cases won’t be told about the non-economic damages cap, but rather will answer a series of questions designed to "evaluate" the severity of the plaintiff’s injuries.

Oklahoma’s Lemon Law

I like most of the changes to Oklahoma Lemon Law, minus a few, nit-picky items.

The old law provided some ambiguity about the enforcement and remedies available to consumers who purchased "lemons."

The revised law implements an exclusive time period to sue for the lemon law statute to apply  (1 year – the same as before), but outlines many of the remedies available for consumers (see subsection C).

As for some nit-picks about the revision (which is basically the same statute as before):

Before using the statutory provisions, you must notify the manufacturer (or it’s agent/authorized party) in writing of the manufacturing problem. "Well, duh," you say. "The dealer or manufacturer should know about the problem because they’re fixing it." I know, I agree it’s a stupid provision, and an easy way for the auto maker/dealer to relieve itself of liability. Most people won’t know about the provision, and therefore, they can’t claim the applicable violations.

Secondly, you have basically a 1 year after purchase window (although the statute allows an "express warranty" time period) to notify the dealer or manufacturer that your car is a lemon.

Product Liability

Manufacturers of inherently dangerous products will have a complete defense against claims for injuries where the manufacturer can show:

1. The product is a common consumer product;
2. The product’s utility outweighs the risk created by its use;
3. The risk is known by the consumer and the community;
4. The product wasn’t substantially changed when it reached the consumer; and
5. The product contained adequate warnings.

Fortunately, the new statute does not apply to claims alleging manufacturing defects or breach of warranty.

Joint and Several Liability

The new statute (23 O.S. § 15) removes the current (and plaintiff-friendly) allowance for a fault-free plaintiff.

Joint tortfeasors (defendants) will remain severally liable for torts, unless one defendant is greater than 50% responsible, or a joint tortfeasor acted willfully and wantonly or with reckless disregard.

See this Wikipedia post about joint and several liability.

Thank Your Local Legislature is a post from: Oklahoma Legal Issues. You can read the original post by visiting our site. Please visit our homepage for more information about our law firm. Absolute Legal Services, LLC is an Oklahoma City law firm helping people with legal issues in personal injury actions, consumer claims, immigration, and social security. Please see our services page for more information.

The only thing I hate more than guys who beat their wives/girlfriends is guys who molest young kids. This kind of treatment (discrimination?) towards particular groups of people needs to stop!

You need to call/write/email your congress member or state representative to ask them to support any measures that prohibit these kinds of behaviors from insurance companies.

I Hope You’re Just as Sick is a post from: Oklahoma Legal Issues. You can read the original post by visiting our site. Please visit our homepage for more information about our law firm. Absolute Legal Services, LLC is an Oklahoma City law firm helping people with legal issues in personal injury actions, consumer claims, immigration, and social security. Please see our services page for more information.

You can read my opinions here.

Oklahoma’s Tort Reform Issue is a post from: Oklahoma Legal Issues. You can read the original post by visiting our site. Please visit our homepage for more information about our law firm. Absolute Legal Services, LLC is an Oklahoma City law firm helping people with legal issues in personal injury actions, consumer claims, immigration, and social security. Please see our services page for more information.

This man rented a vehicle from a national vehicle rental company because his personal vehicle needed some repair work. The repair shop, his insurance carrier, and the car rental company all share a building.  The man signed the standard rental contract, and drove the vehicle until his car was repaired. The repair shop finished the fixes, and the man returned the vehicle the vehicle to the rental company.

When this gentleman arrived at the car rental company, no employees were present to accept the vehicle. A worker from the repair shop said they accept returns for the rental company all the time, and took the vehicle’s keys. The man paid his repair bill and left.

A few hours later, the rental company called to notify him that they found damage to the vehicle, and he would be required to pay the repairs. The man was rightfully upset when he got the repair bill, and sought our services.

I examined his contract and discovered an unknown (unheard of/unconscionable?) clause that placed all liability for damages onto the man if he returned the vehicle, without an employee inspection, after hours or to any other location except one 5 miles from the rental facility.

When I explained this provision, and the man’s breach of the contract, he was perplexed. "How come they wouldn’t tell me that I had to return it to another location," he asked. The simple fact is, they don’t have to because you’re supposed to have read that, realized the provision existed, and asked questions if you don’t understand.

He assumed, as I would have, that he’d be able to return the vehicle to the rental location, and relieve his liability. Thankfully for this man, the cost for this "lesson" aren’t terribly great. Unfortunately for the man, he has an added expense, which if disclosed originally, would never have happened.

So, the moral is:

1. Read and understand everything you’re given.
   
2. Verify that the location you’re renting at is also the location you’ll return to to relieve your liability.

Just by way of curiosity, were you aware of that provision? I wasn’t, and neither were 5 other attorneys I’ve talked to.

Examine the Fine Print is a post from: Oklahoma Legal Issues. You can read the original post by visiting our site. Please visit our homepage for more information about our law firm. Absolute Legal Services, LLC is an Oklahoma City law firm helping people with legal issues in personal injury actions, consumer claims, immigration, and social security. Please see our services page for more information.

Generally, Republicans favor tort reform because it "benefits businesses", while Democrats dislike the idea because you’re permitting bad products/people. I’ve never really understood this, because both sides seem to be flipped on the issue and their desires. Mostly, Republicans favor fewer taxes, less government involvement in industry, and a free market system. Democrats generally favor more taxes, bigger government, and caps on free enterprise. In the tort reform debate, Republicans champion the ideas of caps on litigations because it hampers the free market system (although I’ve never agreed with that because it’s the quintessential free-market idea: pay and benefit from your products/services). The two sides clash in every state, and generally the issue is never resolved (click here for a previous discussion on legislation in Oklahoma).

Well, "the voice of Republicanism", Rush Limbaugh (I happen to like & sometimes agree with Rush – listening off and on since I was 12), is advocating tort reform as a method to stimulate the economy that is "the English rule" of tort law. This is a "loser pays" rule that could be beneficial (although I don’t support it at all) in high dollar cases  where "frivolous" claims are filed by "greedy plaintiff’s lawyers." Everyone hates hearing how some lady made 500 gazillion dollars because she spilled hot coffee in her lap, right? (BTW, here’s a link to the real facts.)

Arguably, there are some cases that see ludicrous (i.e. the Wendy’s finger), but for the most part, people sue other because they can’t get the "justice" (i.e. an apology sometimes) for bad behavior. I’ve talked to a lot of "tort reformers", especially doctors, who don’t realize that some of the suits for malpractice could be resolved by saying "sorry that the surgery/procedure didn’t go as planned." Instead, many clam up under the "do no harm" mantra, and feel that any sort of apology countermines their proficiency as a physician. I think most people recognize that doctors are human, and despite every precaution, sometimes stuff happens.

What "chaps" me though is that by touting tort reform, many people believe that they’re going to be better off, especially in the "loser pays" market. Here’s a consideration:

In my experience 75-85% of the lawsuits filed (at least in Oklahoma) deal with issues around car accidents. In most cases, the injured plaintiff has property damage (a busted vehicle), and some physical damage (cuts, broken bones, whiplash, etc.). In the current system, plaintiff’s attorneys negotiate separate payments for the vehicle damage and the bodily injury, many times without filing a lawsuit. Insurance companies may haggle over small issues, but generally, payments can be made without increased litigation costs.

Under a loser pays system, attorneys would automatically file a lawsuit (increased cost #1), and seek the trial (increased cost # 2-infinity). Because most of the auto accident claims are "clear liability" or something similar, the loser will always pay. That’s double payment for the victim (i.e. once for the insurance and twice for the plaintiff’s attorney). In the current system, attorney’s fees are usually based on contingency fees (percentage of the total settlement). Plaintiff’s attorneys will start charging hourly rates equivelent to their current contingency rates, and also risk no out of pocket costs. Also under the current system, each side pays their own litigation costs (yes, there are a few exceptions), which helps to keep litigation cost low.

Implementing the loser pays rule seems logical because it punishes someone who files a lawsuit just to sue. In reality, you’re only curbing a small percentage of those cases, and you’ve now increased the cost for automobile insurance for every individual. Moreover, as a plaintiff’s attorney, I’m still going to take those cases against the doctors where I see liability and can make the case, I’ll just be more cautious (I already am) about those claims.

Remember, plaintiff’s attorney’s aren’t meeting with clients and saying, "gosh, your case doesn’t look so good, but let’s go ahead and sue anyway" (again, there are a few exceptions). When I get a case, especially one of medical negligence, I’m going to research, read, and review a lot of things before taking the case and filing the lawsuit. As such, if we lose in the end, it’s because of the jury and not the case. Also, I’m going to work like mad to settle the claim ahead of trial, because I know there’s massive consequences if I don’t.

Finally, advocating the loser pays method doesn’t add anything because "the loser" usually doesn’t have money to begin with. You’re going to have to sue an individual with few, if any, resources and who is essentially judgment proof.  Basically, you’re never going to recover, and you’ll still owe your attorney’s bill. I can’t see any sense with trying to waste additional time and resources following this method, but, perhaps there’s an angle I’m not seeing. Let me know.

No, clearly it’s not "tort reform" that we need, rather insurance reform. Doctors and individuals can’t get coverages/payments that they need to adequately do their jobs and live their lives. While malpractice insurance continually rises (please show me a link to litigation), payments for services quickly declines. I heard my father tell me that the insurance company would rather pay $3,000 dollars for  him to perform a procedure in a hospital, than $300 (the actual cost with supplies) in his office. This is stupid! We gripe at paying $3.00/gallon for gasoline, and here’s a company that’s wasting our money.

As always, if you have opposing views or some rebuttals, we’d love to hear the comments. More importantly, each of us needs to be involved in discussing these issues with our state and representatives. The issue of insurance isn’t going away and neither is tort reform.

Tort Reform (Negative) 2.0 is a post from: Oklahoma Legal Issues. You can read the original post by visiting our site. Please visit our homepage for more information about our law firm. Absolute Legal Services, LLC is an Oklahoma City law firm helping people with legal issues in personal injury actions, consumer claims, immigration, and social security. Please see our services page for more information.

In the upcoming year we’re going to see a monumental amount of information regarding House Bill 1602, which recently passed in the Oklahoma House of Representatives by a slight margin. The bill, and other similar to it, cap the fees attorneys can earn on contingency case to 33% of the first $1,000,000. Right now, Oklahoma lawyers may receive up to 50% of the total settlement award for their services in the matter. In contingent fee cases, attorneys will advance all the costs of the case, and expect to receive retribution for those advancements when the claim settles.

What few people realize is that these types of claims require expenses and work that many of the injured parties cannot afford. Many of the complex cases, such as those dealing with faulty products, catastrophic injuries, and questionable liability, require reports, examinations, tests, depositions, and other costly work that most people cannot afford. Unlike claims for Workers’ Compensation, where these items are paid for by the compensation carrier, and the labor required is less, contingent fee cases require independent monetary support.

House Bill 1602, and its counterparts, fails to address the question of  whether the 33% cap includes the attorney’s costs.  This scares many attorneys because they fear they won’t have the ability to recoup their costs, let alone make any type of living. This is especially troubling in those complex claims where the attorney expends $200,000 for a settlement/verdict of $750,000. At the 33% cap, the attorney receives $247,500. A $47,500 paycheck, which you might say is a hefty sum. However, the attorney incurred all the risk without any of the reward.

This is what makes me sick. If I’m willing to gamble with my money, I should be able to take the reward. In these types of cases, nobody loses. The client risks no money, and if the case is successful, receives benefits and compensation for his/her suffering. If the case is unsuccessful, the client loses nothing, yet the attorney’s wager is off the table. Yet, with the legislation that’s going through, you’re cutting my desire to play the odds.

This doesn’t make sense, and shouldn’t make sense to Republicans or Democrats. If you’re a "true red" conservative, you should be saying, "That isn’t the conservatism I know. This isn’t the free market idealism we conservatives support." But yet, our Republican lawmakers are pushing this through. I’m a Republican! This is not where I want my party to head. I’m sick about this! Not because it effects my livelihood, but because we’re allowing some politician to say how much an individual can earn. That isn’t the American dream I know or want.

I’ve spoken with my doctor friends, my realtor friends, and my blue collar friends about this issue. For a minute, think about this statement: "How do you feel when you’re told you can’t earn what you’re worth?"

For doctors, you bill insurance companies, and they seldom pay the full value of your services. For realtors, what if the legislature suddenly decides to chop your commission on each sale to 2%? You incur expenses with each sale, how much would you make now? For you blue collar guys/gals, what if your boss suddenly paid you less each week because you’re not "valuable" enough to the company? Finally, for my defense attorney friends who salivate at this legislation, think about where you’ll be when no attorneys are taking the soft tissue claims, and suddenly your billable hours are cut in half. How will you make up the excess now? The economy is tight, and you’ll be part of those massive layoffs you keep hearing about.

If you still think this is a good idea, then you’ll have your chance in November 2010 to vote yes for State Resolution ____. If you’re concerned, it’s time to support organizations that are fighting these blatant changes to Republican ideals. Please contact our office for information about helping defeat this legislation.

Remember this prediction, if Oklahomans pass this legislation, you can bet that contingent fees will decline. You can bet that when you’re injured, you’ll be covering the costs of the litigation and have to pay a hefty retainer and hourly fee for an attorney’s services. If you’re injured, there’s a high probability that you’ll lose some work time too. Without work, can you afford your home, medical, car, or other bills, let alone a $10,000 retainer plus $20,000 in costs plus a $250 hourly fee.

I’m all for reforming the way litigation occurs, and the way attorneys charge fees. I know a large number of attorneys who do what is necessary to ensure that each client receives a sizeable settlement amount. I can’t tell you the number of times I’ve adjusted, or seen another attorney reduce fees because the settlement was less than anticipated. However, this method of coercion doesn’t belong. There will be unanticipated costs for everyone, not just "those greedy trial lawyers."

Finally, if you’re interested in learning about the legislation, this article in the Journal Record and this one on NewsOK.com do a fair job of highlighting the issues involved in this debate.

We Need Tort Reform, But Not Like This! is a post from: Oklahoma Legal Issues. You can read the original post by visiting our site. Please visit our homepage for more information about our law firm. Absolute Legal Services, LLC is an Oklahoma City law firm helping people with legal issues in personal injury actions, consumer claims, immigration, and social security. Please see our services page for more information.

I like the fact that President Obama has proposed a stimulus plan that has the potential to bring financial success. I don’t think, other than to say I told you so, that it’s right to criticize the President’s stimulus plan. The plan is what it is, and hopefully, as the President stated on Wednesday, this will be the plan that will bring the economy back where it needs to be.

One of the benefits I’m hoping will be good for everyone is the mortgage bailout proposal. Although I’m adverse to helping people who purchased more than they could afford because their lender said they could (sorry if that’s you), I think this provision will help bring this country and economy back where we need to be, but not in the short-term the President is hoping. I think if you qualify for a mortgage bailout, and your payments are reduced, then you’ll probably use the additional income to pay down your remaining consumer debt (that’s what I’ll do), instead of injecting the additional income back into the economy.

Sure, arguably you’re going to have more money to buy items and go to the movies, but generally, I predict you’re going to concentrate on increasing your family’s financial security through saving or reducing your debt. This will eventually be a good thing for this economy. Having less debt means more financial security, and eventually a stronger economy.

If you’re interested in the details and determining whether you qualify for the mortgage bailout, check out this article in Business Week, or refer to the White House’s blog post.

Give Me My Bailout is a post from: Oklahoma Legal Issues. You can read the original post by visiting our site. Please visit our homepage for more information about our law firm. Absolute Legal Services, LLC is an Oklahoma City law firm helping people with legal issues in personal injury actions, consumer claims, immigration, and social security. Please see our services page for more information.

Let’s not forget that it’s a small minority of people, and government agencies who failed to monitor the situation, that has created this crisis. For the most part, average Americans, like you and me, had nothing to do with this disaster, yet we (and our children’s children’s children) will suffer the twice.

Prepare for Another Bailout is a post from: Oklahoma Legal Issues. You can read the original post by visiting our site. Please visit our homepage for more information about our law firm. Absolute Legal Services, LLC is an Oklahoma City law firm helping people with legal issues in personal injury actions, consumer claims, immigration, and social security. Please see our services page for more information.