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.

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 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.

Contrary to the belief of the general populous, many of my clients who first come to me are not really focused on money. Most have a healthy dose of outrage that the insurance company is denying to pay them for even the most basic and related treatment. Most are scared that they are going to need future medical care. Others are quite simply overwhelmed by the process and looking for a professional life-preserver.

But in the end, the only “helper” the civil law allows me to recoup is money. My plaintiff’s lawyer arsenal did not come with a magic wand to waive and put my client back to the healthy condition they were in before the accident happened. And so the conversation must inevitably come to money. But, NOT at the beginning of a personal injury claim – not in the days, weeks or even first few months after the accident. Often clients who meet me for the first time discuss the facts of their case with me, describe the treatment they’ve received, and then they look at me and ask, “how much do you think my case worth?” The problem is that this is an almost impossible question to answer in the beginning, and no lawyer worth their salt should answer it in any other way other than: “It depends.”

Although this answer is often met with skepticism and disappointment, a Plaintiff’s lawyer who tells you this is not trying to pull the wool over your eyes, they are really being a good advocate for you. When you are still treating for your injuries, we don’t want to settle your case. Your claim is simply not ready to settle. What if you fail to recover? What if you get worse? Each day that you are experiencing pain or healing from your injuries goes directly to your claim for pain and suffering. If you settle while you are still suffering, you will never be compensated for your present complaints.

Secondly, most of time people who are seeking the advice of the attorney do not know how much insurance covers the case. Ultimately, it doesn’t matter what the case it worth, it matters if there is money to cover what the case is worth. Even if you have a personal judgment against the person who hit you for a million dollars, it’s just a worthless piece of paper if the defendant doesn’t have a dime to pay.

Finally, insurance companies vary so widely on what they offer and to what kind of case, that it is difficult if not impossible, (my arsenal also doesn’t come with a crystal ball) at the beginning to assess when that company will pay the money deserved. The lawyer needs time to develop the case to maximize recovery for your injuries. There’s a lot of strategy involved to decide when is the best time to settle a case. And so, in the beginning, the question of “what is my case worth?” is really one of the most difficult ones to answer.

Plaintiff’s lawyers are a mostly male bunch. And when I say, “mostly male,” I’m not so much commenting on their gender, but on the spectrum of maleness – Plaintiff lawyers tip the scale to one side to the nearly, “good ‘ole boy” order. My real life experienced of how I arrived at this stereotype: 1) Last year I attended my first Plaintiff’s Lawyers Statewide Conference. In walks a very successful plaintiff’s lawyer who’d I put in his late sixties (for the sake of my bourgeoning career, I will refrain from identifying him by name). On the arm of his ridiculously shiny three piece suit was…count them, not one, not two, but three buxom blondes who appeared to be all of twenty- two, and I can safely say after overhearing the conversation, were not in law school. They were also not his daughters; they were not his granddaughters. 2) The first time I appeared in court with the partner of my firm, the bailiff stopped me as I walked through the swinging doors to counsel table and told me that as his secretary, I wasn’t allowed at counsel table and I’d have to sit in the gallery 3) As part of our plaintiff’s lawyer’s listserv someone mistakenly posted the question, “who’s good on knees” – presumably asking if anyone knew of an orthopedic surgeon in town. One of the good ‘ole boys who hit “Reply to All” responded, “my girlfriend.” 4) I was given the grand tour of a lawyer’s sprawling office, and when I inquired as to why there was a stuffed warthog mounted in the men’s bathroom, he retorted, “because we are male-chauvinist pigs.” On any given day, I frequently walk into a room of trial lawyers as the only female in the room. What’s worse, the stereotype that a Plaintiff lawyer should be male, has spilled over into the clientele who believe that in order to do my job I must look like that guy on T.V. who says, “The insurance companies have lawyers working hard on their side, and so should you.” I’ve had clients actually say to me, “no offense to you sweetheart, but I don’t want you to get bullied by the men.”

The truth about Plaintiff lawyering in general, it’s a tough group to break in with, but once you do the work itself is totally conducive to women attorneys. The skills necessary to manage a household and necessary to manage a large client case load are pretty damned similar. You always have one kid getting into to trouble, one who is ultra sensitive and you will have to treat gently when you give him bad news, and one who, no matter how much you call, never calls you back! Both jobs require you having to attend to a million fires a day without anyone ever seeing you break a sweat. Plus, bonding with juries and understanding the motivations of when people will step-up and help, is something with which women are uniquely attuned. So, I’ve used my oddity as a female in a male-dominated profession as a benefit. It’s not always easy working with the boys, but what I lack in flannel and gun-toting, I make up in good ole feminine wiles.

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!

In every personal injury case there comes the day when the defense attorney will want to take the deposition of the plaintiff. They do this for several reasons: they want to find out what happened (fact finding), they want to observe and size up the witness (character finding), and they want to elicit unfavorable testimony (lie finding) so they can use it later in court or as a negotiation chip.

And commonly plaintiffs feel like no matter how they answer the question, it can be misconstrued. For example, if the plaintiff testifies that they didn’t go to the doctor the day of the collision – the defense draws the following conclusion: they must not have been really injured. If the plaintiff testifies that they went to the hospital by ambulance because they were concerned they were badly injured – the defense draws the following conclusion: they must have been faking their injury from the get-go. Same with wage loss. Go to work = not really injured; not going to pay your claim. Stay home from work = lazy person looking for free ride; not going to pay your claim.

And in a strange way there is great liberty in the no-win answer. Ultimately, it is the attorney’s job to frame the case, not the clients’. Spending energy worrying about spin is not worth the worry invested. The truth of the claim will prevail in the end, and the deposition is not the forum for proving plaintiff’s case.

The best advice I can impart came from my best girlfriend, who told me, “when in doubt, apply more lip-gloss.” And the other gem, came from my very pragmatic husband who said, “if you’re explaining you’re losing.” Combine the two, and you have the formula for a successful Plaintiff deposition. Do not embellish, do not add unnecessary detail, do not feel that you need to explain every answer you give, do not become rattled or frazzled with the questioning. The best thing to do in a deposition is to calmly and succinctly state the truth and if you feel the need to suddenly start defending yourself, take a breath and apply more lip-gloss (and for the men, I would suggest popping a few hundred mints in your mouth instead).

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.