The recently filed suit against Vibram, maker of the Five Fingered Barefoot Running Shoe, alleges misrepresentation of the shoe’s benefits to runners. This headline piqued my interest as a lawyer, as a runner, and as an owner of a pair of barefoot shoes. While I am extremely protective of the consumer and support lawsuits that increase consumer awareness and consumer safety – my protective lawyer instincts were seemingly unaroused on this one.

Here’s why: Seriously consumer, pick up the “shoe” (using the term loosely) and flex it.  Notice that there is no support (thus the birth of the term “barefoot”). That means no support for your arches, no support for your toes, no support for your leg muscles, etc.  Ever walk around a tile house barefoot all day? How’d that feel by the evening? Hurts, right? Feels better in your plush bunny slippers, right?

Now imagine really pushing your body and running barefoot.  You will, most likely, experience pain the next day. Do you need explicit warnings to not do that too often, or is the ache in your feet and joints enough to clue you in?

Do I think barefoot running good for you? It really depends on your level of fitness, and how often and how far you are running. Going from couch to 5K on the first day of your Vibram purchase is not a bright idea.  Remember, you are basically just slapping a giant callous on the bottom of your foot so you don’t sustain a gash in your foot when you step on a rock. Nothing particularly magical about the concept that should lead consumers to feel duped.

One of the Vibram devoteds’ claims about the barefoot craze itself is intriguing – that man of 10,000 years ago ran around without shoes, and so that is what we are made to do.  But here’s a fun fact: 10,000 years ago we weren’t running around on concrete.  The man-made invention of the cushioned sole is perfectly suited to the man-made creation of concrete roads and sidewalks.  The adage of childhood still holds true – barefoot is great in the grass and dirt, but not so much in a paved parking lot.

So, if I’m not buying the health claims regarding my increasing speed, muscle strength, posture, endurance and reduction of injury, you might wonder why I own a pair. Simple: they are comfortable and transition well from water to land. Also, when I start to belly-ache about how hard running is, I take off my super plush, ultra cushy running shoes and run about 2.5 miles in the Vibrams.  There’s the magic!!! Suddenly running in my running shoes doesn’t feel like a chore anymore; I can go for miles!!

The lawsuit itself is brought by Berman DeValerio, one of the country’s premier class action law firms focused on business litigation, in the U.S. District Court of Massachusetts. The complaint seeks a jury trial on the grounds that Vibram is making “false” health claims about its product.

These “deceptive” claims include the following: “that the barefoot  footwear concept  improves posture and foot health, reduces injury risk, strengthens muscles in feet and lower legs, and promotes spine alignment.” Vibram isn’t the first shoe company to be in the legal hot seat. In early March, a Baltimore product liability lawyer filed a  Skechers ‘Shape-Ups’ Class-Action Lawsuit that seeks money damages for consumers who paid a “premium price” for Skechers “Shape-Ups” based on TV, print and Internet ads that touted the toning shoes’ health benefits. The complaint  further states that “Skechers is currently being investigated for its toning shoes marketing claims” — it would provide health benefits ‘without setting foot in a gym’–by the Federal Trade Commission. In September, the FTC reached a $25 million settlement with Reebok for making similar fitness claims about its own brand of toning shoes.

Suits of this kind pose a kind of legal double-edged sword. While it is important to regulate the claims of the s

eller that range from questionable to downright ridiculous (toner, leaner, back side without even stepping foot in the gym!), I worry the legal consequences will result in the mandated substitution of a warning label for plain old common sense. Yes, I’m a plaintiff’s lawyer and yes, I said it. Sometimes things that look too good to be true are just that, and you shouldn’t go suing someone because of it.

In the wake of Google’s launch of self-contained computerized vehicles, California State Senator Alex Padilla recently introduced legislation regarding the automated vehicles similar to Nevada’s preexisting laws.  Nevada, usually noteworthy for legalized gambling and prostitution, may have a new feather in its cap as the premier state to register these experimental cars with the Department of Motor Vehicles and allow these vehicles on its roadways. Nevada’s law also requires that the vehicles include the capability for drivers to override the controls and that each car be programmed to safely park itself on the side of the road should it encounter programming problems and the operator fails to take control.

The advent of these new automotive modern marvels bring with them a whole host of uncertain, challenging and perplexing issues with regard to liability, responsibility, and privacy. As far as civil liability is concerned, it is anticipated that the number of car accidents will decrease, but the percentage of car manufacturers being sued would increase dramatically. This presents an interesting paradox for the spirit of invention itself; if technology shifts responsibility from driver to manufacturer, the liability costs become a huge disincentive to develop a safer mode of transportation.

This same conundrum was seen in the pharmaceutical sector with the design and dissemination of vaccines. Vaccines save hundreds of thousands of lives a year from diseases, that if uncontrolled could spread quickly amongst the general populous. In spite of their lifesaving properties, many vaccines are also known to cause serious side effects and even death in a small fraction of the population. The National Vaccine Injury Compensation Program was designed to deal with claims arising from a range of vaccines while providing manufactures insulation from lawsuits. We may see the creation of a similar program to help protect car manufacturers and encourage the continuation of technology to eliminate the root cause of most accidents – human error.

Other interesting issues with which legal scholars and law makers are grappling include the following scenarios:

1. Say you get into your car after having way more than the standard, “two-beers, ossifffer..”. If you get pulled over, are you breaking driving while intoxicated laws?
2. And, how exactly does a police officer pull over an automated car? Some suggest that systems could be designed to allow law enforcement to override a car’s external system electronically. Now we have huge Fourth Amendment issues. Also, if vehicle-to-vehicle communication technology is implemented, records could be kept that would make it easy to track a driver’s every move, possibly violating the Constitutional right to privacy. You know marketing execs are salivating and would love to get their hands on all the places you shop during the day.
3. If your car fails to detect a posted speed limit and you are ticketed for speeding, are you responsible? Would driving now be an issue of strict liability?
4. What about insurance? Do insurance companies insure the driver or the manufacturer?
5. What if your car malfunctions and takes you somewhere against your will – is it kidnapping?

Obviously, solutions need to be found to address all of these nuances. But, technology and the law are similar in that regard – they are both an ever-evolving work in progress driven to change by real life challenges that someone in the process never thought to contemplate before implementation. Every outdated case law decision and every scrapped prototype are reminders of the painful process of innovation.

A federal appeals court has reviewed a three-year old lawsuit involving a former Eastern Michigan University student that addresses whether counselors who refuse to work with gays and lesbians on religious grounds are in breach of professional ethics.

In 2009, the university expelled Julea Ward from its graduate counseling program after she refused for religious reasons to counsel a gay student about relationship problems, according to court documents.

Ward sued university officials, claiming her First Amendment guarantees to free speech and free practice of religion were violated.

Her case was tossed out by a lower court in 2010. Eastern Michigan’s lawyers had argued successfully that the school expelled Ward because she violated American Counseling Association rules barring practitioners from discriminating on the basis of sexual orientation and from “imposing values that are inconsistent with counseling goals.” The school also argued that internal policy prohibited it from referring the client to another student.

On Friday, however, the Cincinnati-based U.S. Court of Appeals for the Sixth Circuit reversed that ruling, stating that no such policy existed and a “reasonable jury could conclude that Ward’s professors ejected her from the counseling program because of hostility toward her speech and faith.” The appeals court sent the lawsuit back to federal district court for trial.

Ward entered the program in 2006 and was about four classes shy of graduation when the university assigned her to counsel a gay client. She asked her faculty supervisor to send the client to another student or to end the counseling if the sessions turned to relationship issues, according to court documents.

ACA ethics rules allow counselors to send clients elsewhere over clashes of values that create an “inability to be of professional assistance.”

“What exactly did Ward do wrong in making the referral request?” the court asked in an opinion by Judge Jeffrey Sutton, an appointee of President George W. Bush. Ward requested the referral to avoid imposing her values on gay and lesbian clients, not the other way around, the court said.

In the aftermath of the Casey Anthony verdict, there was a certain amount of shock and disbelief that spread over the trial’s followers. Once this initial visceral response had subsided, the verdict itself should not be that surprising. The standard of proof for a criminal trial is steep.

Beyond a reasonable doubt means that all the defense needs do, is plant the seed that some other scenario is plausible. In other words for the guilty verdict to come in, the evidence would have to establish a particular point to a moral certainty, and that it is beyond dispute that any reasonable alternative is possible. This case was fraught with evidentiary problems, the greatest of which appeared to be that the autopsy report that could not establish an actual cause of death. It came down to the fact that she “just looked guilty,” but that’s no evidence that can convict someone of first degree murder, or even manslaughter. Thus, the public at large was outraged while interested attorneys watching the case just shrugged their shoulders in acceptance of the result.

In civil matters like personal injury, the standard is much lower than beyond a reasonable doubt. The standard is called preponderance of the evidence; meaning that if I, as a Plaintiff’s lawyer, make my case just a little more than my opponent, the jury must find for the Plaintiff, even if they have reasonable doubts. Preponderance of the evidence simply means something is more likely true than not.

Seems fairly simple, right? Well, I bet you never heard anyone on Law & Order or Court T.V. articulate that standard. In fact, the beyond the “reasonable doubt” is so ingrained in us as a culture that most of us have no idea there are separate standards of proof for differing actions. Therein lies the difficulties in civil trials: getting jurors to understand their job and the standards they are to apply to their decision making. Our job as civil litigators from the get-go is to explain that this is NOT a criminal trial and that they CANNOT hold us to the criminal standard. I’ve heard it explained in percentages – “if I present just 50.1% more evidence in my favor than the defense – I win. That’s the law.” I’ve heard it explained by a scale – “If the defense and I are essentially even and the scales are balanced, and I place just a feather on top of the scale, that is enough to tip the scale in my client’s favor for a verdict.”

However it is accomplished, it is a NECESSITY that jurors understand (and are constantly reminded throughout the trial) of this standard. Otherwise, clients are left sitting next to me at counsel table with the same shock and disbelief as the faces of the those who first heard the Casey Anthony verdict.

No surprise, a good bit of my time is spent reviewing medical records. As with other professional niches, (and lawyers are not spared from this syndrome) doctor-speak sometimes does not translate well into the real world. I find the same phenomenon when reviewing traffic collision reports – cop speak sounds funny as well. I remember one police report in particular where the officer wrote that the involved party had exposed his person. That made me giggle. Here too are some highlights from recent doctor’s reports that I found amusing:

1. “Lateral bending to the right causes patient pain on the left side and also pain with prolonged sitting causes her pain and the need to pop the anterior chest.” [Sounds like a bad hip-hop song: Pop, pop, that chest girl!]

2. “Patient comes in for follow-up. Patient has transitioned from land therapy to pool therapy. [sounds like she’s making some sort of strange evolutionary digression.] I will follow her for one month for further disposition. [wait, he’s going to follow her into the pool for a month? That seems to be above and beyond the Hippocratic oath.]

I cannot tell you how frequently I hear people tell me the following, “Oh, I don’t need an attorney because the insurance company sent me a letter saying their insured was 100% responsible for the accident.” The problem is that the insurance company and the poor person who was hit, have very different ideas and expectations as to what taking responsibility for that fault looks like. I would say that the vast majority of my cases are those where fault is admitted, but the insurance company refuses to pay for any of the damages.

Here is a sadly familiar scenario: In the beginning the insurance company admits fault and promises to do everything to make this a quick and painless process. The victim breaths a sigh of relief because they have been told everything will be okay and that the insurance company will take care of them. At the request of the insurance company, they send the ambulance and doctor bills and records, hopeful the insurance company will take care of it like they promised. They are cooperative and helpful. Then it happens, the telephone call from the claims adjuster stating the following:

“We don’t feel this was an injury producing accident. We are willing to pay for your ambulance bill, but only your first doctor’s visit, and we’ll offer you a few hundred dollars in pain and suffering. We’ve looked through the medical records you’ve sent us and we obtained your past medical records with the medical authorizations you signed. Thanks for that, by the way. We see that you complained to your doctor of back pain in 1998. We suspect you were injured previously, we suspect you have age related degeneration in your spine that is causing your pain – not this accident, we suspect you are faking it….blah, blah, blah.”

This is the point where people start to get uncomfortable and realize the thing that makes me the most angry in this business: admitting to causing it, is not the same as agreeing to make it right. This trend continues throughout the case, and even at trial can be an effective tactic for defense counsel to employ. At trial, only relevant evidence is admissible. Defense counsel routinely try to argue that evidence of fault (i.e. all the details of how the accident occurred and the negligence of their client) is not relevant if fault is admitted. If they win on this point, a jury could potentially never see all the wrongs that Defendant caused Plaintiff. If this happens, all the jury sees is a Plaintiff complaining of injuries, and complaining that the Defendant refuses to pay for them. If the jury doesn’t see all the harms that the Defendant caused the Plaintiff, all they see is a complainer and no one likes a complainer. This is why admitting fault is essentially worthless in a personal injury claim. The stance of most insurance companies is, “We did it, but we aren’t going to do a damned thing about it.”

My idea for blogging sprung from a personal injury attorney television commercial I had seen as a child – a very lawyerly looking man in an expensive suit explaining how insurance companies had lawyers working hard on their side, and so should accident victim. I was struck by how unlike that guy I was…and still am. First off, I?m a female personal injury attorney. Secondly, I haven?t been fighting insurance companies for the entirety of my adult life. And finally and perhaps most importantly, the conception of the personal injury attorney on T.V. seemed so stilted to me. That man in the commercial was to be the accident victim?s voice, but he resembled a sort of attorney-robot without a voice of his own. That man wasn?t going to listen to a client?s injuries and personal woes, kindly explain the litigation process and what happens at a deposition, or frame interrogatories 150-307 in plain and understandable English. I secretly believed that man on T.V. had a button on his back that made his arms move when he spoke. And so it is with so many lawyer websites; they are flush with statistics of their results and impressive qualifications, but not once do they ever enlighten the client/consumer as to what it is they actually do!

My blog started as just that: a telling of what I do throughout my day with a mix of information on personal injury topics that are commonly asked or misunderstood. Blogging is not eloquent or over-edited. Blogging is free-flowing, creative and often messy – going deep into those places we lawyers fear to tread. As a logical, rule-based and organized bunch, it can be hard for us to appear….well, human. Those framed diplomas on our walls have become our safety-blanket, acting to insulate us from the world of non-lawyers around us. This is both a blessing and curse. I noticed through my blogging that clients have reached out to me more, and eye me less suspiciously with the advice I provide.

Soon after I began blogging I discovered another of its unexpected benefits. Not only was I reaching my client community, but I was also communicating with other lawyers. In a profession where contention and litigation are goals, not behavior modifying obstacles, lawyering can be a lonely enterprise. Through my blog I found others who had similar experiences, failures and triumphs. Blogging is networking in a way that provides valuable and ?real? information. For example, I can hand someone my card and tell them to call me if they ever need a personal injury attorney. But what does that card tell them? Nothing more than I work for a firm that has a nice sense of style and color palate. However, they can read my blog and in a few minutes have a true sense of who I am and the services I provide. The referential impact of blogging is limitless. I frequently read legal blogs of all different practice backgrounds and I learn about trends in the practice area, but also about the lawyer?s actual experiences – something, we all know was never taught in law school.

In a profession with an astounding 18% instance of drug and alcohol abuse, blogging can also be a cathartic and stress relieving venture. Although every week or so I wander around the office grumbling about having to set aside the time to blog when I have pressing (if not looming) litigation deadlines, I find once I commit to the writing, I achieve personal satisfaction unparalleled in my day-to-day practice. Being able to blog about that petty, underhanded motion to compel opposing counsel just served on me allows me to blow off some steam and refocus my energies on other more important things. Invariably I receive an email or call from someone who has had an identical experience – sometimes with the same opposing counsel.

The simple truth is, that undertaking the task of finding something to blog about forces me to focus my energies upon that particular subject. The chaos of the day is distilled down into a one-page entry, and I have to make myself a specialist on that particular topic. The real work and the healing property of blogging lies not in what is actually written, but in the thought and care it takes to decide what it is that is worth writing about. So, although I began my blog to provide information to clients regarding what it is I do for them, along the way I discovered that my blog reminds me that there is meaning behind what I do in the day-to-day grind

So, I’m reading a file in a matter we were recently hired to handle. There are multiple Plaintiffs in the case. Apparently, before we came along a few of the attorneys on the file had some trouble playing nice with each other. The attorneys involved (again, not our firm; not our client) appear to have exchanged some hilarious letters.

There had been two Court orders that discovery was closed before we got into the case. Thereafter, despite the Court orders, Defense counsel noticed depositions. Big “no, no” after the closure dates.

Here’s the beginning of the first letter I come across in the file from a pretty annoyed Plaintiff’s lawyer regarding the recently noticed deposition:

“Dear Defense Counsel:

How did you know I was a fan of fiction? I just finished reading your letter of January 4, 2011. I understand you were involved in a big important trial in the Bay Area and therefore may not be totally up to speed on what took place, but let me see if I can help…”

For the rest of the letter, the attorney predictably proceeds to catalog all the ways discovery is closed and the deposition cannot proceed. I turn the page in the file and find a second letter to this same defense attorney from a different, yet equally annoyed Plaintiff’s lawyer:

“Dear Defense Counsel:

As you know, pursuant to two separate court orders issued by Judge So & So in this case, discovery is “closed.” I am not sure what part of that term is unclear. The first definition of the term closed in Webster’s is “not open.” Perhaps that is the best way to look at the status of discovery in this matter. It is not open.

Hilarious. I got a good crash course on how to craft a nasty-gram. Also noticed from the file that the deposition did not proceed.

Today marks the start of the claim against Sacramento County Child Protective Services filed by John Demas of our firm on behalf Kyle Doe. Prior to today’s press conference announcing the filing of claim, Kyle drew national media attention for his daring escape from torture and captivity from a Tracy home in December 2008.

I say this marks the start of the claim, however, the ordeal that Kyle suffered at the hands of CPS’ ineptitude started over ten years ago. CPS turned a blind eye and brushed numerous allegations of abuse and neglect under the rug for years. In doing so, they left a vulnerable child in the hands of an abusive monster. Having worked on this claim, I can attest to the excitation of two states of angry: “Lawyer” angry – where I just cannot believe how systematically negligent an agency can be in attempting to carry out the most basic of duties; and “Mom” angry – where I cannot believe any child was forced to endure such a horrific existence.

Although CPS is charged with protecting children, time and time again they missed glaringly obvious signs that Kyle was in eminent peril. For example, in 2001, CPS accepted a half-paged, hand-written sheet of paper, stating falsely that Caren Ramirez was Kyle’s aunt, as proper authority to leave Kyle with Ramirez indefinitely. They did not try to find Kyle’s mother who Ramirez alleged signed the note, or substantiate claims that Ramirez was a relative.

A couple of years ago I tried to adopt a dog from a rescue. I filled out lengthy applications, was subjected to a background and reference check, and provided proof of financial stability. I then had to complete an interview and two home visits, before ultimately being told that because I had two children under the age of five in my household, I could not adopt the dog. But in this case, CPS granted a human life to a mad-woman based solely upon a half-sheet piece of paper.

I think John said it best, “We are prepared to prove that CPS completely abandoned its legal responsibility to protect Kyle not once, but repeatedly, after failing to act on multiple reports and substantial evidence of abuse. Ultimately, this is serving notice that the CPS system is badly broken and needs to be immediately fixed.”

Caller: Hello, I’d like to set up an appointment to speak to you about a car accident I was in.

Me: Why don’t you tell me a little about the accident before you come in to see me.

Caller: Sure, it was a terrible accident, this guy ran a red light and t-boned me in the intersection going about 55 mph. I was really hurt and had to go to the hospital. The police came to the scene and said he was responsible.

Me: I see. It sounds like you are lucky to be alive; that’s a hard hit. How are you doing now?

Caller: The doctor says I have to have a spinal fusion.

Me: [thinking this is likely a big case] I see. What hospital where you seen at and did you go to the hospital by ambulance?

Caller: No, I went with the police officer.

Me: Why did the police officer take you to hospital?

Caller: No, he didn’t take me to the hospital.

Me: [now a little confused] Oh, where did he take you?

Caller: To the police station.

Me: [more confused] Why did you go with the officer to the police station after the accident???

Caller: Because I was arrested for a DUI, driving on a suspended license and not having any auto insurance.

Me: So let me get this straight – you were driving while intoxicated at the time of the collision, didn’t have a license and don’t have any car insurance?

Caller: Yeah. So, do I have a case against this guy who hit me? Can you guys defend me for the criminal part too, because I have a court hearing for the DUI on Wednesday.