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.

In what is often referred to as the bane of my professional existence as a plaintiff’s lawyer, the infamous McDonalds case has resurfaced again. Since it inspired the title of my entire blog, I thought I should spotlight its latest phoenix-like rise. It comes back into the watchful eye of popular culture now in a different light and this time appearing on the big screen. Producer and lawyer, Susan Saladoff, just debuted her film, Hot Coffee, at the Sundance Film Festival.

The film chronicles the motivations behind cooperate America’s divisive campaign to turn one woman’s painful ordeal into a sound-bite of mockery, absurdity, and a call for tort-reform. Few people know the story of the case in its entirety – for example, despite an eight day hospitalization with extensive and painful skin grafting of her groin and genital area with exorbitant medical bills, the 79 year old Grandmother sought to settle her claim for only $20,000. McDonalds outright refused, even when faced with more than 700 claims by people burned by its coffee before this particular incident.

Ms. Saladoff’s poignant movie goes beyond the sound bite to discuss why this case continues to haunt popular culture and how it was marketed for propaganda purposes. Here is a blurb from the Hot Coffee website:

“Seinfeld mocked it. Letterman ranked it in his top ten list. And more than fifteen years later, its infamy continues. Everyone knows the McDonald’s coffee case. It has been routinely cited as an example of how citizens have taken advantage of America’s legal system, but is that a fair rendition of the facts? Hot Coffee reveals what really happened to Stella Liebeck, the Albuquerque woman who spilled coffee on herself and sued McDonald’s, while exploring how and why the case garnered so much media attention, who funded the effort and to what end. After seeing this documentary film, you will decide who really profited from spilling hot coffee.”

It was well received at Sundance, and I can’t wait to sit down with a not scalding cup of coffee and watch the flick in its entirety.

I admit that I am 100% guilty of what I’m recommending in this week’s blog. So, I am officially qualifying this post by admitting wholeheartedly that I recognize the hypocrisy of my lawyerly ways and understand I am taking a “do as I say, not as I do” stance. Even worse, after finishing this week’s entry, I will likely feature it on…you guessed it…my Facebook page. After all, I did recently post that I was enjoying the bounty of my time-wasting I-phone Apps on my company expensed cell phone knowing full well my boss is in fact my Facebook friend. Like I said, not a lot of forethought on the status posting on my part.

But here is the reality of social media sites. Much of the information is readily discoverable and can be used against you in your personal injury case. So I will answer my own question, “what’s the harm in a simple status post” not as I have rationalized it in my head over the past few Facebook-filled years, but as I would like my clients to answer it: Yes, social media sites can be detrimental to your personal injury case.

Let’s say this is you: http://www.youtube.com/watch?v=VHtMbeqiqs4 And your hobby of choice is mattress surfing. Let’s say you got in a horrible auto accident claiming back injuries. At trial, the Defense plays this little ditty of you from YouTube for the jury. Suuurreee the jury is going to believe your injuries were caused by the car accident and not your little extracurricular activities. In reality, your case just wiped out like that ATV-pulled turn at mile marker seven. When you bring a claim for personal injury, you can be certain that insurance adjusters and defense attorneys alike will be searching for incriminating details regarding your personal injury claim. If you insist on using social media sites, here are a few tips to safeguard your privacy:

1. Check your privacy Settings. Try and make your personal information as private as possible, including status posts and photo albums.
2. Only select friend requests from people you know – when in doubt, click “ignore.”
3. Do not join groups with compromising names and/or discussions.
4. If possible block certain people from viewing your profile. In Facebook, this can be done under the privacy settings. You can also remove yourself from search results by selecting “Only Friends” under availability.
5. You can also remove yourself from Google Facebook searches by un-checking the box in Facebook under Public Search Listing.
6. Keep your case private. Do not post any photos or give any information about your injury.

If the YouTube video doesn’t inspire you, check out this recent holding: http://www.techdirt.com/articles/20100925/01340511163/court-says-personal-injury-plaintiff-has-to-give-defendant-access-to-facebook-myspace-info.shtml

Five years after my client’s car accident the case finally went to trial. And after three days a verdict was reached that made me angry about the what she went through at the hands of the system. I realized much of my anger was directed not so much at the person that hit her, not the insurance company that dragged this out, refusing to pay any more than a nuisance value on the case – I was also mad at the system. In my profession, I expect the insurance company not to pay. I expect the defendant to deny he did anything wrong. I expect each of these parties to claim that all of the treatment my client received was for anything other than the car accident. What I don’t expect is the Courthouse, that stands as the place to make all things right, to be so hamstrung by budget cuts as to all but close its doors to these disputes.

Three times the case had come up for trial. On three separate occasions we were ready to try this case, with my client expecting to go and have a jury of her peers decide the outcome – witnesses were lined up, doctors were advised to cancel their patients and come to the courthouse first thing Monday morning. Monday came. No courtroom. Tuesday, no courtroom. Wednesday, same thing. And then on Friday, with the court system completely backlogged, the call came from the court clerk with a new date a few months later to repeat the whole painstaking process again. When we finally got the mythical courtroom, the whole trial was done in three days. A five year wait for three measly days.

How many times have we heard we are living in unprecedented times when it comes to the state of our State? Furloughs and budget cuts are cutting into civil liberties, because California simply cannot afford justice. And I was happy to see that AB 2284 recently made it to the Governor’s desk. AB 2284 is the vehicle for implementing one-day jury trials. If the bill passes, attorneys could voluntarily choose the expedited process. A jury would be quickly impaneled (instead of the standard, prolonged questioning process that takes hours if not days) and the whole case would be tried in one day. Before the trial ever started, both sides would agree to a confidential “high-low,” to safeguard that Plaintiffs would receive a minimum payment and Defendants would be assured a payment cap, no matter what the ultimate verdict. The jury would not have no alternates, the courtroom would have no costly reporter, and the jury’s decision would be binding. The system would cut litigation costs and guarantee that the Courthouse could once again administer justice, not a calendar of dark days and door closures.

Not entirely as a side note, this bill co-sponsored by both the Consumer Attorneys of California (Plaintiff’s lawyers) and the California Defense Counsel. Ultimately, no matter what side you intend to argue for once you walk through those doors, we all want the Courthouse to be the place where justice is done. And justice should remain pure and impervious to budget cuts.

In preparing to draft a demand to the insurance company, I am reading through my client’s medical records. I come upon a recent report from her doctor. I read the latest report that purportedly summarizes the results from her bone scan. The report says the following: “There was a focus of intense abnormal tracer uptake in the body of the sternum in proximity to the sternomanubrial joint correlating with the site of pain.”

I call the doctor and ask, “What does all this medical mumbo-jumbo mean?” Doctor says, “It’s broken.” “Hmmm,” I say rather smugly, “Why didn’t you just say that in the report?” Doctor says, “Hey while I have you on the phone, I received a letter from you regarding another case I want to ask you about. Your letter here says, ‘This letter is to advise you that a third party settlement has been effectuated. Unfortunately my client, your patient, was not made whole by this action and you are expressly advised to place our mutual client’s best interest before your practice with the high level of fiduciary responsibility required under California law.’ What the heck does that mean?” I respond, “They didn’t get as much out of the settlement as we’d hoped; I’m asking you to reduce your bill.” Doctor responds, “Well….why didn’t you just say that?” Touché, Doc, touché!

A lot of folks are still harboring the old common law notion that you aren’t liable if your dog bites somebody for the first time. It used to be referred to as the “one free bite” rule. The idea was that after your dog showed vicious behavior by taking a bite out of that first unlucky soul, you were on notice thereafter. But, California’s statutory scheme goes beyond the common law and imposes strictly liability on dog bite owners. (See Calif. Civil Code § 3342). Under the law, if your dog bites somebody, you could end up paying big damages the first time. Even if your dog never showed a history of biting or vicious behavior, you can still be held liable.

So that’s the law. But as often happens with laws that speak to things near and dear to our hearts, the difficulty lies in the application. The codified words in the civil code don’t address the real problem: We love our pets and we don’t want to believe they are capable of hurting others.

My neighbor recently acquired a German Shorthaired puppy. The puppy now at 8 months, weighs about 60 pounds. We went to her house for the customary barbeque and the dog was all over my kids the second we stepped foot in the door. The puppy seemed friendly enough, but my kids were overwhelmed and ran screaming. This made the puppy think they were playing. My children spent the remainder of the evening staying as far away from the dog as possible. Good thing, because the next morning we heard that after we left the barbeque, the puppy had snapped at the owner’s own daughter causing a gash on the back of this eight year old’s head that required sixteen stitches. And here is the conundrum. They love that dog. They love their daughter. It’s natural to make all kinds of excuses for the dog: The girl surprised the dog while it was sleeping; it’s just a puppy and it doesn’t know any better; the dog hadn’t been feeling well that day and probably just lashed out because it was sick.

You see even with the abolition of the “one free bite” rule, it is still difficult to make those tough decisions once your dog has shown vicious behavior. And as difficult as it is for the family to give away their dog, I think an owner faced with this dilemma has to look down the road. There will be countless barbeques and days in the park where the dog will be surrounded by people. Each and every time that owner will have that heavy heart, and worry that comes with the constant monitoring of the dog. When it gets right down to it, we cannot control the world. Ultimately, it is best to give the dog away rather than take that risk every day that your dog could cause serious injury to someone – especially when the dog will be around children. Most children, because of their small stature are bitten in the face potentially causing permanent scarring. I see countless dog bite cases at our firm and it is almost always the same story, the owner knew of the dog’s potential well before the bite occurred. The owner just looked the other way because it was easier than having to surrender their beloved pet. There are numerous breed specific rescues throughout the State that place dogs who have had these sorts of problems, or keep them at the rescue and away from people. This is a far better alternative than the inevitable knock on the door from Animal Control.

I admit I like rules, pomp and circumstance, and order just like all lawyers. For the most part, barely understandable legal jargon is like a warm cozy blanket for the lawyer, me included. But there is one thing that I have a hard time grasping as a relatively new lawyer: Motion Work. The concept is completely lost on me, and I feel like I am forever swimming upstream on this one. Let me explain. Let’s say my client has an arbitration date coming up. Let’s say for any number of reasons, as is often the case, that the arbitrary date the court assigned us two years ago is no longer feasible for everyone involved. So I draft this thing called an Ex Parte Application, using a lot of words like “hereto for”, “therein” and “aforementioned.” Common sense would suggest that this application would ask the court for a new arbitration date. But, that my friends, would be too simple. No, the Ex Parte Application is a request for the court to recognize my request to move the date – the actual request will be ruled on at a later date. So I have to also draft my declaration using a lot of the same words mentioned above with the quintessential line that says something like, “I in my infinite wisdom, having practiced for all of three years, declare everything herein mentioned is true and correct [because if a lawyer says it, it must be true, right?].” And then I have to prepare Exhibits (copies of anything showing the reason why I need to move the date) and the stipulation (the paper with original signatures from all parties involved saying they agree to move the date). The court has to have the original, plus a copy, plus a proof of service showing that you let all parties know about the request for date to hear the request. Of course all pleadings must be printed on recycled paper with the little green recycling symbol arrows on it, then the original and copy must be properly hole punched at the top. Once I have jumped through all these hoops…

Now here is the fun part. I have to make an appointment to go to the court to take the Judge my paperwork which asks the Judge to hear my motion to move the arbitration date to a later date. I wear my very best suit. I drive to whatever court the case was filed in, sometimes hundreds of miles away, and I sit and wait for the court to open its doors at 8 am. I file in with the other of my suit wearing compatriots. I follow the lead of the attorneys with grey hair because I assume, and maybe wrongly so, they’ve done this a few more times than I have and know the drill in this jurisdiction. Sometimes they follow me. I walk up to the table where the Clerk has this fast stamping contraption that slams red ink onto each page of my paperwork at unparalleled speed. And this Clerk, without fail, always manages to ask me at least one question to which I do not know the answer, but doesn’t seem to ever affect the outcome of the stamping. “FILED” “ENDORSED.” She takes my check and I leave without ever seeing the man or woman in the black robe.

I then proceed downstairs with the grey-hairs and the masses of non-lawyers fighting traffic tickets and trying to get home-job divorces, and I wait to file my stamped paperwork. Sometimes I have to pull a number like I’m at the DMV. I wait with the other attorneys in our attorney chair section. The other attorneys all have this satisfied look on their faces. For my billing brethren, every hour devoted to this exercise in futility is an extra billable hour, more bread and butter in their pocket for basically sitting around. They look pleased as punch with these long hallowed traditions that serve to weed out the layperson while simultaneously ensuring the attorney will continue to have worth. For them, it is as satisfying as a secret hand shake. But for the contingency lawyer like me, I cannot help but be struck by the ridiculousness and inefficiency of this whole process, and this time I will never recover and for which I cannot possibly get paid. Finally my number is called, I step up to the window and file my paperwork. This clerk informs me I will need to return to file my actual motion within five days to move the arbitration date. I leave the courthouse by 10:00 a.m, feeling I am no closer to my original simple goal which could have been accomplished on a half sheet of paper: “Your Honor, we would like to move the arbitration date by ten days. Everybody already said it was cool. Please check yes or no.” Nothing is this simple in Motion Work.