Tuesday, March 30, 2010

Health Care: 4 New Scenarios

The Washington Post / Michelle Singletary

With the most significant changes to the nation's health-care policy in decades having finally come to fruition, the question I have, as I'm sure so many others do as well, is how the new law will affect me. 

It's unlikely that most people will read through the 906 pages of the Patient Protection and Affordable Care Act. But if you are inclined to do so, you can find a link to the text at http://thomas.loc.gov. Search for HR 3590. 

If you're not eager to slog through the hair-pulling legislative language, where can you go to get a review of what this reform means for you, whether you have coverage or not? 

I searched for a number of online tools that allow people to plug in their information and get back a personalized summary of how the new legislation affects their lives. The Kaiser Family Foundation, a nonprofit focusing on major health-care issues, has an interactive calculator that can help determine if you are eligible for subsidies to buy coverage through an exchange because you don't have insurance through an employer or through Medicare or Medicaid. At http://www.kff.org, you can also get a summary of the major provisions of the new law. 

One of the easiest interactive tools to determine how the law will affect you can be found at http://www.washingtonpost.com/healthcaretool. It is built to include the law that passed Sunday, plus the reconciliation fixes that the Senate approved Thursday. All you have to do is answer four simple questions. The tool takes into account current coverage, household size, marital status and adjusted gross income (AGI), which is a number used to determine your federal income tax. 

Using the online tool, let me take you through a few scenarios (all salary figures represent AGI). 

Situation No. 1: You are married and have insurance through your employer. There are five people in your household. Your annual household income is $70,000. 

Starting in 2014, if you pay more than 9.5 percent of your income in health insurance premiums, you will have the option of receiving tax credits to help cover the cost of those premiums in the new exchanges. You will also get assistance with health-care deductibles and co-payments. According to your income and family size, the tax credits will ensure you do not spend more than $5,635 to $6,650 on premiums. Your maximum out-of-pocket costs for deductibles and co-payments would be capped at 30 percent of the total cost. 

To make sure that health care is affordable, tax credits will assist people with incomes up to 400 percent of the federal poverty level (up to $43,000 for individuals, or $88,000 for a family of four). The credit is phased out for higher-income families. 

Situation No. 2: You're single and unemployed. You have coverage because of the Consolidated Omnibus Budget Reconciliation Act, commonly referred to as COBRA.

Under COBRA, people can continue to get coverage at their former employer's group rates. But they have to pay the full premium, including the share that the employer used to pay, plus a 2 percent administrative fee. 

For now, you're stuck with COBRA. However, once the exchange and subsidies are set up in 2014, they will effectively replace COBRA. So if you leave or lose your job after this provision kicks in, you'll be able to buy coverage on the exchange with the help of government subsidies. Additionally, there will be a ban on denying coverage for preexisting conditions. 

Situation No. 3: You are 22 and earn about $11,000 a year in part-time income. You graduated from college in 2009 but still can't find a full-time job. You don't make enough to afford health-care coverage. 

In September, you can go back on your parents' plan. 

The law requires that people get some minimum coverage starting in 2014. Penalties for not having coverage begin in 2014 at $95 per uninsured dependent and rise by 2016 to $695 a person (up to a maximum of $2,085 per family or 2.5 percent of household income, whichever is higher). 

Situation No. 4: You have coverage through your employer. You have a family of four and a household income of $300,000. 

There will be no change to your insurance coverage. 

But your Medicare payroll tax rates will increase starting in 2013 from 1.45 percent to 2.35 percent on earnings of more than $200,000 for individual taxpayers and $250,000 for married couples filing jointly. There will also be a 3.8 percent tax on investment income for high-income taxpayers. 

These are just some scenarios. Like it or not, health-care reform is here. 

Monday, March 29, 2010

Tennessee Moves to Split Custody Evenly in Messy Divorce Cases

USA Today

 Eric Kyle, a divorced father of two children, would like to spend more time parenting.

A Tennessee bill that would evenly split child custody in contentious divorce cases is drawing national attention and dividing groups along gender lines.

On one side is an alliance of women's groups, some judges and the Tennessee Bar Association, who say the change would make divorces tougher to settle and give abusive ex-husbands leverage they shouldn't have. Spending half of the time with each parent would also impose impractical schedules on kids, they say.

On the other side are fathers' rights groups who say kids get deprived of full relationships with both parents. Courts have too long ignored laws calling for custody decisions to be made in children's best interests, they say, and judges are overly influenced by notions about the mother-child bond.

The state's House Children and Family Affairs' Family Justice Subcommittee is scheduled to meet today to review divorce-related data it requested from the Tennessee Bar Association, as it works to determine whether to send the bill to a second committee that could send it to the full House.

Other states, including Missouri, start from a presumption of an even custodial split unless there has been abuse, said Janet Richards, a law professor at the University of Memphis who specializes in child custody matters. Tennessee would be alone in requiring clear, convincing evidence that one parent is unfit before dividing custody unequally, she said.

"This law sets up a standard of proof that's just short of the criminal standard of beyond a reasonable doubt," Richards said.

Committee hearings on the bill have drawn standing-room-only crowds full of mothers wearing saucer-size lapel stickers that read "Vote no on HB 2916" and fathers wearing everything from military fatigues to business suits.

Right now, parents divorcing in Tennessee — or unmarried parents trying to work out custody arrangements — are urged to work out a plan with a mediator. Under the pending bill, courts automatically would divide children's time equally between moms and dads who are unable to agree unless one parent can prove the other utterly unfit.

The way Eric Kyle sees it, he hasn't been able to properly father his children since his 2005 divorce.

Kyle, who lives in Davidson County, Tenn., wanted his son and daughter to split their time equally between him and his ex-wife, who lives in Williamson County, Tenn. But when Kyle sought divorce lawyers willing to try to negotiate that kind of arrangement, one after another told him the same thing.

"You either have to dirty up your ex and do whatever you have to to get full custody, or you accept what I understand is a pretty standard 80-20 time split," he said. "Of course, it's dads that get the children 20% of the time, in most cases."

Rep. Mike Bell, a Republican and the bill's key sponsor, said he introduced the bills after constituents' complaints and hopes it might encourage more parents to reconsider divorce.

"It's a concern that children are being deprived of one parent or another in most cases in a custody battle," said Bell, who has been married 25 years and has five children.

Opponents want to scare the public with claims about children being shuttled back and forth and attending multiple schools, said Mike McCormick, executive director of the Washington, D.C.-based American Coalition for Fathers and Children.

"I say — with the recognition that there is nothing like (this bill) in the country — all it would actually do is require parents to be on equal footing in courts of law," McCormick said. The bill ignores the problems some families have, said Kathy Walsh, executive director of the Tennessee Coalition Against Domestic and Sexual Violence.

Some parents divorce after years of the kind of controlling, domineering or even violent behavior by one party that doesn't go away just because the relationship ends, Walsh said.

She said the bill could prompt victims to stay with their abusers so they don't have to leave their kids alone with the other parent.

Monica Gimbles said she doesn't think the bill is realistic. She is in the process of finding an attorney to work out custody arrangements for her 5-year-old daughter with her onetime fiancé.

"This is the kind of idea that people come up with when they haven't ever actually taken care of a child, a small child that needs a lot of care and takes a lot of time," Gimbles said. "It just makes the child's life topsy-turvy."

Missing Dissident Chinese Lawyer Found in Northern China

The Wall Street Journal

SHANGHAI—One of China's high-profile dissident lawyers, missing for more than a year, has resurfaced and is apparently living in mountains in northern China known as a place for Buddhist pilgrimages.

The dissident, Gao Zhisheng, who has gained a reputation as one of a handful of lawyers willing to take on the government in legal cases, disappeared from his hometown in February last year. His case has drawn significant international attention, because he was missing for so long and because he had reported being tortured by authorities when detained previously.

Mr. Gao told the Associated Press in a telephone interview on Sunday that he is living in Shanxi province and is "free at present." Mr. Gao also told the AP that he wants "to be in peace and quiet for a while, and be reunited with my family." The dissident told Reuters in a separate phone conversation Sunday that he was released about six months ago.

In 2006, Mr. Gao was arrested and placed under house arrest with intense surveillance by security agents. His wife and children fled China about a month before Mr. Gao's 2009 disappearance. They were later granted asylum in the U.S. Chinese officials offered vague and at-times conflicting statements about Mr. Gao's whereabouts.

In January, a Chinese foreign-ministry spokesman, responding to a question from a reporter, said that Mr. Gao was "where he should be" after "relevant judicial authorities have decided this case." The spokesman's comments, however, weren't included in the ministry's official transcript of the news conference.

British Foreign Minister David Miliband raised Mr. Gao's case, among other human-rights concerns, when he visited China this month.

At a news conference with Mr. Miliband, Chinese Foreign Minister Yang Jiechi said Mr. Gao "has been sentenced for committing the crime of subverting state power."

It is unclear whether Mr. Yang was referring to a previously reported 2006 conviction, for which he received a suspended prison sentence, or to the results of a new trial. Mr. Gao said in a statement issued before he disappeared that Chinese security forces beat him and applied electric shocks to his genitals during a 2007 detention.

Reuters reported that Mr. Gao, known as an advocate for political reform, appeared to be under police surveillance when interviewed by phone Sunday, and he declined to make extensive comments.

He told the AP that he isn't allowed to accept media interviews.

Sunday, March 28, 2010

Lawyers may have Final Say on Footballers with Concussions

The Sidney Morning Herald

A leading neurologist says lawyers will ultimately be responsible for forcing the NRL and other football codes to adopt a hardline approach to the practice of continuing to use players who've suffered a concussion.

The issue was placed under the spotlight again last week when it was revealed Newcastle prop Ben Cross was stood down after he'd suffered his third concussion in is as many games over a four-week period. Dr Raymond Schwartz, who has treated numerous first-grade league players for head injuries, warned the practice of using players who'd taken bad knocks to the head was dangerous.

''There are different grades of concussion; there's a grade where you are not necessarily unconscious but in a confused state, but if a footballer has been unconscious I don't think he should be allowed back on the field for four to six weeks,'' Dr Schwartz said.

''I understand there are [football] guidelines, but from my perspective there isn't enough of an emphasis being made to keep players who've suffered a concussion off the field.

''From a neurology point of view if you get a concussive injury you are at greater risk of getting further concussive injury and repeated concussive injuries definitely cause brain damage.''

Dr Schwartz believed the courtroom and a legal debate about a club's duty of care to an injured player would ultimately lead to a toughening up of the practice.

''It needs to be put in the spotlight,'' he said. ''And while doctors will continue to make warnings like mine, I think ultimately it will be lawyers - and journalists, too - who'll drive the point.''

While there is the possibility a footballer could one day argue he was allowed to play on when he was not in a fit state to make such a decision, Dr Schwartz said he was shocked to hear a footballer's view on the damage he was doing to his brain after a series of head knocks.

''I remember looking after a well known first-grade player, and he's quite an intelligent guy,'' said Dr Schwartz. ''But he told me in the first few minutes of a game he - or one of his colleagues - would get a concussive injury but they'd stay on the field and their teammates would point them in the direction of where to run and use them as battering rams.

''They were in what he called a 'haze' and when I asked why he did that to himself he was honest. He said it was his career, his livelihood and that there was an incredible financial imperative for him to remain on the field because of the bonuses. He was between a rock and a hard place.

''When you couple their lifestyle, which includes alcohol, it adds fuel to the fire.''

Last year the American National Football League commissioned a study on the long-term affect of football-related head injuries and it revealed Alzheimer's disease or similar memory-related diseases appear to have been diagnosed in the league's former players vastly more often than that nation's population - including a rate of 19 times the normal rate for men ages 30 through 49.

Thursday, March 25, 2010

Texas: Prosecution will not Take 'Guilty' for an Answer

The Dallas News
Robert Blackburn wants to tell a judge that he's guilty. But the people charged with punishing him – the prosecution – won't let him.

When visiting Judge, John McCraw, tried to allow Blackburn to plead guilty to drug possession charges, saying taxpayers should not have to pay for unnecessary trials, the ruling set off a flurry of legal maneuvers in which the Collin County district attorney's office asserted its right to demand that a jury hear the case rather than let him plead guilty to the judge.

"We're not up here just going through the motions," District Attorney John Roach said. "We have reasons for everything we do – our reason has to do with the promotion of justice."

The spat between judge and district attorney has created a stir in legal circles and the blogosphere. But Roach says the brouhaha over forced jury trials in Collin County, which has arisen occasionally in other counties, is due to "defense lawyers that don't like being made to go to trial."

Roach declined to discuss the Blackburn case, citing pending litigation. But in a peculiar twist due to Texas law, if Blackburn goes to trial, he can demand to be sentenced by the judge, putting the case back where it started after considerable taxpayer expense. Blackburn's attorney is promising to take the issue to the Supreme Court to allow his client to plead guilty to a judge.

Roach said his office doesn't think it is an "honest process" to accept open pleas in which the accused pleads guilty to the judge and the judge decides the punishment without approval by the prosecution.

"A lot of time the defendant and the state, it's just a wink and nod and forcing the judge to decide what the punishment should be," said Roach, who also is a former judge.

Few cases go to jury

Despite the hallowed American right of defendants to face a jury of their peers, 99 percent of criminal cases in Texas never go to trial. Guilty pleas are the grease that keeps the system moving, because it would break down if everyone entitled to a jury trial demanded one.

Texas is one of a handful of states that allow jury sentencing; most leave that task to a judge. But in the few states that do, if you demand a jury trial, you get jury sentencing. Texas is the only state that allows the defendant to choose who sentences the guilty – judge or jury. Only if a Texas defendant pleads guilty to a jury must he or she be sentenced by the jury.

Juries generally are considered less predictable than judges when it comes to punishment.

And in Texas, like many other states, prosecutors must agree to a defendant's decision to waive a jury trial and go before a judge.

Though it is unusual for prosecutors to demand trial when the defendant wants to plead guilty, it's not unheard of.

"It's costly, but it might serve some educational purpose for the public to air the facts," said Nancy King, law professor at Vanderbilt University. "It's a way to test the proof, if there's some doubt about whether the offense actually occurred."

Shannon Edmonds, government liaison for the Texas District and County Attorneys Association, said a trial also might \enable the judge to "learn something new in that trial he wouldn't have learned otherwise," and give the victim "their day in court, which they don't get to do if there's a plea."

But judge shopping – by the defense or the prosecution – is always a possibility.

In Blackburn's case, McCraw thought he saw just that. In his December ruling, McCraw accused the district attorney's office of "forum shopping for a particular judge to fix the punishment."

Assistant District Attorney John Rolater, who is handling the Blackburn case, denied it in court.

Attorneys cannot request that a case be assigned to a specific judge, but they can try to gauge a judge's calendar to see when he or she will be presiding.

Hunter Biederman, a Collin County defense lawyer who was in court the day McCraw accepted Blackburn's plea, said efforts by prosecutors to avoid certain judges are outrageous.

"If we're going to elect our judges, who are supposed to be neutral magistrates, why are we going to take that [sentencing] power away from them?"

Roach said his office does not target specific judges as some allege. "That's an ignorant statement," he said. The law says prosecutors are entitled to demand a jury trial "and it doesn't make any difference what our motives are."

Rolater also pointed out in court that without a trial, a judge could give Blackburn deferred adjudication in which the accused's record is wiped clean if he or she completes this special probation. Authorities said Blackburn, 27, tried to swallow the evidence and scuffled with an officer. He faces four felony counts.

Prosecutors opposed deferred adjudication in Blackburn's case. But McCraw called that argument a "straw man" because Blackburn did not request deferred adjudication.

"The state wants to control who sets the punishment hearing," McCraw said. "Is that what the fight is about here?"

DA's reasons debated

Biederman, who wrote about the twists and turns of the Blackburn case extensively on his blog, mentioned other reasons the district attorney's office might insist on trials in cases in which defendants want to plead guilty, including giving rookie prosecutors courtroom experience or inflating the district attorney's conviction rate for political purposes.

Roach dismissed those ideas as well, pointing out that young attorneys cut their teeth in misdemeanor court, not felony court, and saying his office doesn't need to "pump up" its conviction rate.

"I'm hired by the people of Texas to try criminal trials – that's what we do," he said. "Who wants an idiot for the district attorney who won't work to try a case?"

When McCraw allowed Blackburn to plead guilty over prosecutor's objections, he said, "I would submit the United States Constitution allows a defendant the right to enter a plea based on the court's request."

McCraw cited "judicial economy" in his ruling, saying the county should not have to pay for up to four jury trials at a cost of about $5,000 per trial when the defendant is willing to plead guilty.

Other costs related to any trial – attorney fees, costs to jurors' time – also would be incurred.

An appellate court overruled McCraw, citing the state law that says the case must go to trial because the prosecutor and judge must consent to the waiver of a jury trial and saying Blackburn failed to "specifically raise a constitutional argument for this court to address."

Blackburn's attorney, Michael Curran, said he is filing a motion asking the appellate court to rehear the issue. If he loses in state courts, as others challenging the law have done, "This thing can go all the way to the U.S. Supreme Court," he said. "I intend to take this as far as I can."

Roach stands by his policy to adhere to the law that allows him to refuse to let judges accept pleas without his consent. Even though the law allows Blackburn to be sentenced by a judge after a jury trial.

"I don't think it's a waste of taxpayer money for fellow citizens to make a determination about whether a person is guilty of a criminal offense."

Wednesday, March 24, 2010

Tuesdays are 'Ladies Day' in Florida Drug Court

Miami Herald

Judge Dee Anna Farnell paced the courtroom floor, wearing running shoes beneath her black robe.

Her eyebrows furrowed as one woman talked about a bad boyfriend. She hugged a young woman who stayed clean for more than a year. She prompted applause from courtroom spectators over a defendant's good news. She cooed over pretty outfits and new babies.

Tuesdays are a little different in Pinellas County drug court.

Dubbed "Ladies Day," it is for women only. It focuses on why so many women are showing up with serious drug problems, especially with prescription drugs. Farnell, 56, is more like Oprah than Judge Judy.

A few years ago, drug court was nearly 80 percent men. Now almost half the 1,400 defendants are women, said Pinellas drug court manager Shannon Loveday.

A year ago, Farnell and her drug court team were awarded a $900,000 federal grant for females to receive substance abuse treatment in Florida. They will seek a new one next year. It is the first drug court in the country to have such a program devoted to women.

In the beginning, her team members were not prepared for what they saw. One after another, women arrived slurring and sunken-eyed. Some nodded off at the podium. Some couldn't even make it to the podium.

Farnell feared for their lives.

"Before, we would just see a sprinkling of them throughout the week, but this was like a tsunami," she said.

Now, the first Ladies Day defendants are about to graduate. Five women who say they feel better, look better and are ready to live drug-free will finally be released from the court's supervision on Tuesday. More are scheduled for release in coming months.

"I feel like I really accomplished something," said Norma Lanthier, a 56-year-old recovering alcoholic who was arrested for driving under the influence and possession of oxycodone. "Judge Farnell is going to be so proud that she never has to see me again."

But for every success Farnell sees, she sees quite a few failures, some of them fatal.

Farnell typically opens each drug court session telling her courtroom a chilling tale. It might be a drunken driving death in the news or an obituary of a young person who overdosed.

On one recent Tuesday morning, Farnell talked about one of the three female drug court defendants she lost to fatal pill overdoses in January. She read the police report, which detailed a boyfriend's account of the girl sleeping in his bed for nearly 48 hours before he thought to check on her. He didn't think it was odd, Farnell told the room of women, because she always slept a lot.

"Do you catch my drift?" Farnell said.

Farnell served as a judge in the juvenile and criminal divisions for 12 years before taking over drug court in 2007. The former public defender and mediator said drug court is an entirely different animal, and learning how to be effective has been a learning experience.

Her approach is part coaching, part theatrics and part reading through people's lies or weaknesses.

She's also persistent. Unlike in regular court, Farnell sometimes sees the same offenders every month for years before she's finished with them.

Drug court is a voluntary alternative to regular court. Nonviolent offenders with drug charges can opt to waive a speedy trial and avoid jail time or convictions on their record. But it also means they must undergo counseling, take drug tests and go through 12-step programs that can take years to complete. Relapses are common. Almost every offender walks in with some degree of denial.

When Farnell and her team of mostly female legal advisers and counselors began noticing the increase of women in drug court, they felt a shift in the way they handled them.

Women seemed defensive, tightlipped and unresponsive when men were around. But around mostly women, they were more open about trauma, abuse issues, family problems or parenting stress. They seemed less humiliated and more humble. They opened up more.

"With men, it's always like, 'Yeah, you can do it!'" Farnell said. "But with women, it takes more cajoling."

When cajoling doesn't work, Farnell often lets them sit in jail to think about it.

Amanda Clark, a 29-year-old former stripper, took a while to come around to the idea of change. Arrested in 2008 for possession of cocaine, she spent months behind bars before agreeing to the terms of Farnell's drug court and drug rehab.

She is set to graduate from drug court in May and hopes to leave the state to see her children.

"I had a lot of character defects to work on," Clark said after a recent Tuesday court appearance. "Now I feel tremendous. I've never been more proud of myself."

Farnell tells the Ladies Day women to stay away from bad influences. "Drop the boy," she said of one troubling boyfriend.

Sometimes that suggestion turns into a formal court order not to have contact with "the boy." A woman might nod and say it's over. Then the boy shows up at her next court date with her.

It's not the drug addiction that's the problem, Farnell likes to tell her courtroom. It's all the things that led to it, and a stint in prison won't fix it, so she fights to get her women to agree to outpatient counseling or rehab.

Lanthier, a grandmother whose first DUI arrest was almost 20 years ago, had no interest in staying in jail. So she opted to be one of the first Ladies Day participants. She was amazed at how much the court system had changed from her first time there.

"You actually want to do the program," she said. "With no men there, you can speak freely."

Men's problems, Lanthier believes, are different from women's problems. In her Florida drug rehab counseling sessions, she found that with girls as young as 18 and women her own age, self-esteem was a common issue. So was the embarrassment and shame of their addiction.

Lanthier has been sober for 15 months. She's eager to graduate Tuesday and head north to see her grandkids.

She credits Farnell for her new life.

"She is that program," Lanthier said. "She gets up close and personal and shakes your hand. She has people clap for you when you accomplish something."

But most important, Lanthier says, Farnell knows when to take people's second chances away.

"If you keep going and going with the drugs," Lanthier said, "eventually she's got to do her job."

The 9/11 Lawyers Deserve Praise: Don't Arbitrarily Slash their Fees

NY Daily News

In light of Judge Alvin Hellerstein's stunning Friday ruling rejecting the legal settlement of 10,000 workers injured in the post-9/11 search, rescue and cleanup efforts, it is time to reassess the agreement - including the legal fees paid to the plaintiffs' attorneys.

The judge said he feared that too much of the deal would be consumed by legal fees - and worried that Ground Zero responders might be pressured into signing on before understanding just how much money they were due to receive.

Fair enough. But one thing that should not happen is for the plaintiffs' lawyers to have their fees arbitrarily slashed. Instead, it makes far more sense for the City of New York to pick up the heroes' legal bills.

Simply cutting the fees on the theory that the lawyers are being "too greedy" would be unfair and shortsighted in the extreme.
Lost in the impassioned rhetoric against the settlement - much of it directed at the plaintiffs' lawyers - is the simple fact that they have stood with the heroes for the past six years. The same cannot be said for the city's government or its contractors. They opposed the workers, even though the federal government gave the city $1 billion to cover the workers' losses.

If there are good characters and bad characters in this drama, the workers' lawyers are wearing white hats.

True, the lawyers did not agree to represent the workers for free. Their retainer agreements entitle them to contingent fees equal to one-third of the recovery plus expenses, about $200 million. New York law expressly deems fees of this level "fair and reasonable," except in medical malpractice cases, where a lower cap applies.

The workers were smart to hire lawyers at the prevailing rate. To understand why, consider one fact: The city paid a high-priced D.C. law firm more than $200 million to defeat the workers' claims.

In the civil justice system, money counts. Rich litigants defeat poor litigants most of the time. The workers needed to offset the city's enormous spending advantage. A person armed with a pea-shooter has little chance against a tank.

The workers countered the city's gambit by offering their lawyers contingent fees. In fact, they beat the city at its own game. The city took its $200 million in attorneys' fees from the insurance fund the federal government created. The workers did the same thing. By promising lawyers a fraction of their recoveries, they used the insurance fund to prevent the other side from defeating them by outspending them.

Few people know much about the risks and costs contingent fee lawyers incur. Talking with the workers' attorneys, I learned that they spent more than $3.15 million on filing fees alone. That was literally the price of opening the door to the U.S. District Court. If they lost the case, they would never have gotten that money back.

All told, the attorneys spent about $30 million of their own money with no guarantee of repayment. Why so much? Because for six years the city and its co-defendants fought the workers tooth and nail. For example, I'm told that in the 12 cases scheduled for trial in May, the defendants filed more than 200 motions to dismiss. Scorched earth tactics make lawsuits expensive. They also force plaintiffs' attorneys to expend enormous amounts of time.

The workers' lawyers devoted hundreds of thousands of hours to their clients' cause without receiving a nickel in payment. The defense lawyers, by contrast, bore no such risks. Their expenses were reimbursed as incurred and they were paid by the hour for their time each month.

Congress could have spared the workers the costs they incurred by reopening the 9/11 victims' compensation fund. It did not. The city could have saved them money by renouncing litigation and creating an administrative review process. It did not.

Litigation was the only avenue left, and as everyone knows, litigation is expensive. In fact, compared with many victims, the workers were lucky. The tort system regularly sends deserving plaintiffs home with nothing.

Nothing prevents the city from using the insurance fund or other monies to defray the workers' legal fees. By doing so, the city would enable them to keep their recoveries and would spread their legal costs across everyone who benefited from their public service. That seems right to me.

If, however, the court were to cut the lawyers' fees, attorneys would be discouraged from taking the next big case on contingency. Claimants who cannot afford to pay lawyers by the hour would then find themselves without counsel. And in our civil justice system, a victim without an attorney is unlikely to beat an opponent who has lawyered up.

Silver holds the McDonald Endowed Chair in Civil Procedure at the University of Texas School of Law.

Tuesday, March 23, 2010

California: Governor Cannot Furlough State Fund Workers

Metropolitan News-Enterprise

The First District Court of Appeal ruled Friday that Gov. Arnold Schwarzenegger may not impose mandatory furloughs on the attorneys, administrative law judges and hearing officers who work for the State Compensation Insurance Fund.

Affirming the decision of San Francisco Superior Court Judge Peter J. Busch, Div. Three concluded that Insurance Code Sec. 11873(c) precludes the governor from reducing the number of hours worked by SCIF employees.

That code section provides that “the positions funded by the State Compensation Insurance Fund are exempt from any hiring freezes and staff cutbacks otherwise required by law.”

In December 2008, the governor issued Executive Order No. S-16-08, declaring that the state was facing a fiscal and cash crisis and that a furlough of state employees was necessary to reduce spending and improve the state’s ability to meet its financial obligations.

Schwarzenegger directed the Department of Personnel Administration to “adopt a plan to implement a furlough of represented state employees and supervisors for two days per month, regardless of funding source.”

The California Attorneys, Administrative Law Judges and Hearing Officers in State Employment—which goes by the acronym CASE and is the exclusive collective bargaining representative for approximately 3,400 legal professionals in more than 80 different state departments, boards, and commissions—filed suit in Sacarmento Superior Court, seeking to enjoin enforcement of the order.

CASE contended that the governor lacked statutory authority to order a furlough, that salary-setting is a legislative rather than an executive function, and that a furlough would contravene provisions of the Government Code and of the memoranda of understanding between the state and the unions.

A Sacramento Superior Court judge denied CASE’s petition, but before judgment was entered, issued a minute order clarifying that the ruling only applied to represented employees of executive branch agencies and did not address the governor’s authority to order furloughs for any independently elected constitutional officers or other elected statewide officials and their employees.

Shortly thereafter, CASE and three individual plaintiffs filed suit in the San Francisco Superior Court against Schwarzenegger, the Department of Personnel Administration, the state controller, and the president of SCIF seeking an injunction prohibiting the imposition of furloughs on represented employees of employed by SCIF on the basis of Sec. 11873.

Busch asked the parties to brief whether the San Francisco action should be stayed under the doctrine of exclusive concurrent jurisdiction until the Sacramento matter was fully resolved.

He determined that the issue presented a “close call,” and “[b]ut for the clarification order…the exclusive concurrent jurisdiction argument would be rather strong.”

Although the Sacramento court’s minute order did not refer explicitly to SCIF employees, Busch noted these employees are not “employees of executive branch agencies” to whom the Sacramento court considered its ruling to exclusively apply, and found that there was no conflict in adjudication.

As for the merits of the case, Busch opined that the term “staff cutback” as used in Sec. 11873 “has to be read in its commonsense meaning,” and a furlough program designed to reduce the availability of staff “is a cutback for purposes of the statute.”

Writing for the appellate court, Justice Stuart R. Pollak agreed with both of Busch’s determinations.

Pollak emphasized that neither State Fund itself nor any of the individual members of CASE were parties to the Sacramento proceedings.

“If the Sacramento judgment is not binding as to the parties or issues in this action, no prejudice can result from considering those issues in this case,” he said.

The justice further reasoned that this case “neither threatened nor produced a conclusion that is irreconcilable with the judgment in the Sacramento action” since the legal issues resolved in each proceeding were “entirely different,” with the present action involving an issue which was not considered in the Sacramento proceedings.

Pollak also explained that an interpretation of Sec. 11873 as limiting the governor’s authority to impose furloughs on SCIF employees was consistent with the language of the statute, the larger statutory scheme, and the legislative history of the State Fund authorizing legislation.

He reasoned that a “cutback” occurs, for purposes of Sec. 11873, “whether hours are reduced or employees are terminated.” Pollack posited that any reduction in total hours worked by SCIF employees “is the same whether achieved by a furlough imposed on all employees or the layoff of only some employees.”

The justice also suggested that allowing the furlough of SCIF employees would not achieve the stated purpose of the executive order—to improve the state’s ability to meet its financial obligations—since any cost savings realized would accrue, not to the benefit of the state’s general fund, but to the ledger account maintained for the exclusive use of the State Fund.

Presiding Justice William R. McGuiness and Justice Peter J. Siggins joined Pollak in his decision.

The case is California Attorneys, Administrative Law Judges and Hearing Officers in State Employment v. Schwarzenegger, 10 S.O.S. 1481. 

Monday, March 22, 2010

District Attorney’s Boycott of a Judge Raises Issues

NY Times

Dolores Carr, the Santa Clara County district attorney, has led a boycott of a judge who she thinks has not treated her office fairly.

Every Wednesday, prosecutors in Santa Clara County take part in a weekly ritual: as the new judges’ calendar goes online, they begin signing affidavit after affidavit to block cases from going before Judge Andrea Bryan.

Since January, more than 100 cases originally assigned to Judge Bryan have been transferred to other judges in the San Jose courthouse at the request of the district attorney’s office.

The district attorney, Dolores Carr, explained: “Our aim is to have our cases heard by a judge who will give us a fair shake.”

While there had been earlier friction between Judge Bryan and Ms. Carr, the catalyst for the boycott came in January when Judge Bryan freed a convicted child molester. She ruled that a deputy district attorney on the case had lied about evidence and committed other “outrageous” acts of misconduct.

In practice, a request for a judge to recuse herself is rare; it is almost never approached with the kind of single-minded ferocity seen in San Jose. There the effort has complicated the daily routine of administering justice and raised concerns that the prosecutor is exercising undue influence to sway judicial decisions.

“If this is taken to its logical conclusion, you are talking about criminal defendants’ appearing before the judge chosen by the D.A,” said James Sample, a professor at the Hofstra Law School and the co-author of a 2008 report on recusal reform from New York University’s School of Law. “It’s turning the scalpel of recusal into a chain saw to undermine judicial independence.”

A California law, mirrored in 18 states, gives parties a one-time right to insist that a judge recuse herself. The legal term is “peremptory challenge.” Colloquially, it is called “papering.”

The challenges have stirred up judges in all corners of this courthouse, where personal histories and professional relationships have been intertwined for decades. Judge Bryan has been a prosecutor. Ms. Carr has been a judge. Many of the judges, prosecutors and public defenders have dealt with one another repeatedly over the years. Many face re-election periodically.

Among legal scholars, the papering of a judge by ongoing players, whether a district attorney or a public defender, is frowned on. The judiciary typically handles the assignment of cases as it sees fit, and interference can appear to challenge judges’ independence. A boycott of one judge can be viewed as a warning to all.

One judge felt so moved by the situation that he spoke from the bench about Judge Bryan. “I look to my colleague, who is now a subject of much public debate and in some quarters ridicule, and wonder whether or not I would have the courage to do what I thought was right,” Judge Eugene Hyman said last month as he made a ruling exonerating a man charged with murder.

In the squat buildings in Santa Clara County’s civic center, the events have polarized what was already an adversarial process.

For Ms. Carr, who is facing re-election in June, the fundamental issue may revolve around two people: Augustine Uribe, the convicted molester, and Troy Benson, her deputy, whom Judge Bryan accused of deceit.

In 2006, Mr. Uribe was convicted of molesting his granddaughter and was sentenced to 38 years to life in prison. When video evidence of the girl’s medical examination emerged afterward — evidence that, the defense said, cast doubt on the conviction — Judge Bryan made her ruling.

Mr. Uribe’s defense lawyer had argued that Mr. Uribe should not face retrial because his rights had been violated and asserted that Mr. Benson had lied and withheld information about the videotapes.

In January, Judge Bryan agreed. She wrote in her opinion: “Mr. Benson’s numerous acts of misconduct, culminating with his false testimony in this proceeding, strikes at the foundation of our legal system and is so grossly shocking and outrageous that it offends the universal sense of justice to allow prosecution in this matter to proceed.”

Mr. Benson faces an investigation by the state bar association that could lead to his suspension or disbarment. Mr. Uribe has been set free, although he may face retrial. Mr. Benson did not respond to requests for an interview. Judge Bryan declined to comment.

In an interview, Ms. Carr said that her office had previous concerns about some of Judge Bryan’s rulings, which she declined to detail. The Uribe decision was “the straw that broke the camel’s back,” she said.

After the ruling, Ms. Carr met with the court’s presiding judge, Jamie A. Jacobs-May, to lobby for Judge Bryan’s reassignment. Nothing changed and the papering campaign began.

A 1957 state law gives any party involved in a case one chance to challenge a judicial assignment without giving a reason. It was upheld by the State Supreme Court in 1977, although the justices expressed “disapproval” of blanket challenges. In San Jose at least, the affidavits to bar a judge from hearing a case go directly to the judge in question, who is not permitted to ask the reason for the request.

The weekly ritual of papering by the district attorney’s office has its mirror image in the office of Judge Philip Pennypacker, the supervising judge in the criminal division. His ritual involves keeping Judge Bryan busy with a few criminal cases that are exempt from the boycott.

“We’re trying our best to deal with the roadblock thrown in our way,” Judge Pennypacker said.

Ms. Carr is not alone in challenging a judge. Judges in San Diego County have reported that District Attorney Bonnie Dumanis papered them. A former judge, Ms. Dumanis said the challenges were not personal and were analogous to being called for jury duty and not being picked.

While individual lawyers in Santa Clara County have asked judges to recuse themselves, the sheer number of challenges against Judge Bryan is believed to be unprecedented.

In 2000, lawyers in the public defender’s office papered Judge Joyce Allegro, who had sat on a board of a victims advocacy group, to prevent her from hearing cases involving domestic violence. Judge Allegro was reassigned. Ms. Carr said there was little outrage then, although few knew about the papering until The San Jose Mercury News disclosed it several years later.

Mary Greenwood, the county’s public defender, said there was a fundamental difference between challenges from the public defender and those from the prosecution. In criminal cases, the prosecuting attorneys bring the judges their business.

“The use of this tool can effectively force a judge out of the criminal division,” she said. “No other institution or individual has the power to do that. It creates an imbalance of power in the criminal justice system.”

Alfonso Lopez, who was Mr. Uribe’s defense lawyer, said the fallout from Judge Bryan’s ruling had surprised him. “Now I understand why judges are afraid,” Mr. Lopez said. “It makes me think we are in a dictatorship.”

The challenges have become an issue in Ms. Carr’s re-election campaign. In a debate, her opponent, Jeff Rosen, a deputy district attorney in her office, called the papering “un-American.”

The decision, Mr. Rosen said, “does nothing for child molestation victims, nothing for Mr. Benson and nothing for my prosecutor colleagues’ going forward as we appear before an appropriately offended judiciary.”

He added that he would refrain from such actions.

Ms. Carr said she did not expect her challenge to Judge Bryan to influence judges’ decisions.

“I have more faith in my colleagues on the bench to continue making decisions they think are right,” she said. “To imply that judges on our court may be somehow frightened doesn’t give them enough credit.”

Among the judges, keeping Judge Bryan involves complicated logistics. Reassigning her other judges’ criminal cases has led to more roadblocks. Recently, she has been hearing a child molestation case, which was exempt from a peremptory challenge because she has heard an aspect of the case before.

Once the jury is selected, the trial is expected to last three weeks. It is unclear if other major cases will be available to her.

Sunday, March 21, 2010

Hamilton Hospital Agrees to Pay $6M for Medicare Fraud Charges

Robert Wood Johnson University Hospital in Hamilton has agreed to pay $6.35 million to settle allegations that the facility defrauded Medicare, Justice Department officials said today.

The Mercer County hospital was accused of inflating charges to Medicare patients to obtain bigger reimbursements from the federal government.

“Taxpayer dollars should go towards quality health care, not wasted on fraud and abuse,” said Tony West, Assistant Attorney General for the Civil Division of the Department of Justice.

The hospital denied wrongdoing in the settlement, said Skip Cimino, the facility's president and CEO. "Robert Wood Johnson University Hospital Hamilton has resolved the outstanding Medicare Reimbursement issue with the government and looks forward to continuing its service to the community," he said.

The facility is latest in a string of New Jersey hospitals targeted by a federal Medicare probe, sparked by "whistle blower" lawsuits filed under the False Claims Act.

In 2008, Cathedral Healthcare System, which is affiliated with the Archdiocese of Newark, agreed to pay $5.3 million to settle similar allegations. Two years earlier, Saint Barnabas Health Care System, the state's largest medical network, agreed to pay $265 million.

The cases revolve around supplemental reimbursements to hospitals, called "outlier payments." They are allocated in cases where the cost of care is unusually high.

Congress enacted the supplemental outlier payment system to ensure hospitals had incentive to treat inpatients whose care requires unusually high costs. Prosecutors, however, say the system is easy to manipulate.

“This office is determined to protect the integrity of the Medicare system for the citizens of New Jersey and of the United States,” U.S. Attorney Paul J. Fishman said.

Friday, March 19, 2010

Yale Law Library Adds Bobblehead Dolls to Collection

NY Times

Relax, Legal Scholars: Bobbleheads Are Safe at Yale

The oldest item in Yale Law School’s rare book collection is a 1,000-year-old fragment of a medieval manuscript bound inside an Italian guidebook for notaries. The newest is a bobblehead doll depicting William H. Rehnquist, 16th chief justice of the United States.

Fred R. Shapiro, an associate librarian, explained the latest acquisition: “A hundred years from now, if someone wants to study the bobbleheads, where will they go? There needs to be an archive.”

And so the Lillian Goldman Law Library, which probably has the best collection of rare law books in the world after Harvard and the Library of Congress, is now the official repository of bobbling likenesses of a dozen Supreme Court justices.

“The bobbleheads are, not to overstate it, a little bit more than toys,” said Ross E. Davies, the editor in chief of The Green Bag, which calls itself “an entertaining journal of law” and created the dolls. “They’re portrayals of the work and character of these judges.”

The bobblehead of Justice David H. Souter, for instance, wears heavy gold jewelry and sits on a lifeguard stand, reminders of his opinions in a copyright case involving the rap group 2 Live Crew and a sexual harassment case brought by a female lifeguard. In a second copyright case, Justice Souter referred to “the latest release by Modest Mouse”; his bobblehead plays a snippet of a song by the band.

These new acquisitions present challenges. “I don’t know if anyone has cataloged bobbleheads before,” Mr. Shapiro said. “This might be breaking new ground.”

Part of the bobblehead collection was opened to public view last week in the law school’s rare book exhibition gallery, joining a display of “medieval manuscript fragments in law book bindings.”

Mike Widener, the school’s rare book librarian, said he had put some thought into which recent justices to highlight, settling on Chief Justice Rehnquist and Justices Sandra Day O’Connor and John Paul Stevens. “I did try to provide a bit of ideological balance,” Mr. Widener said.

Jonathan Zelig, a second-year student, said the exhibit brightened the room, which can be “a little staid.” But he noted a shortcoming. “I have to notice that none of the justices graduated from Yale Law School,” Mr. Zelig said. “That is a disappointment.”

The Green Bag has created about one bobblehead a year, starting with Chief Justice Rehnquist in 2003 and adding more mostly in reverse order of seniority. It has not yet reached the three Yale graduates on the court: Justices Clarence Thomas, Samuel A. Alito Jr. and Sonia Sotomayor. Mr. Davies, a law professor at George Mason University, said a Justice Thomas doll was planned for next year.
The journal makes 1,000 to 2,000 of each bobblehead. They are not for sale. “We make no promises about when we will make them or who will get them,” the journal’s Web site says, though subscribers seem to have pretty good luck.

In an interview, Mr. Davies said two words best describe the journal’s bobblehead distribution policy. “Caprice,” he said, “and willy-nilly.” That is frustrating for the

[Photo: Chief Justice Rehnquist bobblehead doll]
aficionados and law firms who prize the dolls and have been known to pay thousands of dollars for a single one in online auctions.

The Yale bobblehead collection has some rarities, including early drafts and alternate versions. In one, Chief Justice Rehnquist holds a purple law book. That would not do, Mr. Davies said. “In Supreme Court practice,” he said, “getting things just right is really important.”

The rarest item is a bobblehead of Justice Antonin Scalia featuring allusions to his majority opinions. Only one exists; the official version focuses on his dissents.

In showing two visitors around the Paskus-Danziger Rare Book Room and the vault behind it, Mr. Widener moved easily between the old world and the new one. He spoke excitedly about a new acquisition — an Italian translation of Blackstone’s commentaries on criminal law from 1813. Then, perhaps inevitably, he told a joke.

“The oldest lawyer joke I’m aware of is actually from the Middle Ages,” Mr. Widener said. It involves a successful lawyer who renounces material things and joins a monastery. The abbot gives him responsibility for the monastery’s financial affairs, but things do not go well. Punch line: “It’s because I’m not allowed to lie anymore.”

The bobbleheads fit the library’s mission, Mr. Widener said. “They remind me of other things in the collection — illustrated law books, mainly from the Continent, with allegorical title pages,” he said. “There’s a symbolic language.”

A minute later, he was looking forward to fall. “Our next exhibit,” he said, “will be the lawyer in comic books.”

Who is Casey Anthony's New Attorney?

My Fox Orlando

Casey Anthony has a new attorney. Orlando attorney J. Cheney Mason has joined Casey's defense team. He said he would work on the case pro bono.

According to Mason's website, he began his private law practice in Orlando, Florida in 1971 after admission to The Florida Bar. His areas of practice include Criminal Defense, Marital and Family Law (Divorce Law), Entertainment Law and Trial Practice, with a strong emphasis on Marital and Family Law and Criminal Law. He is a Board Certified Criminal Trial Lawyer, certified by both The Florida Bar and the National Board of Trial Advocacy.

Mason is frequently a guest lecturer before various Bar and Legal Associations and has published numerous legal articles. J. Cheney Mason is often invited by the news media to provide expert commentary on legal issues involving criminal law and marital and family law, and he is active in numerous local and national legal organizations. He has volunteered his time to teach trial techniques to young Prosecutors and Public Defenders at the annual workshop at the University of Florida, College of Law.

Cheney is the recipient of numerous awards from a variety of professional organizations for his dedication to and accomplishments in the legal profession. In 2004, he was awarded the Robert C. Heeney Memorial Award by the National Association of Criminal Defense Lawyers.

He is currently is rated as an "AV" lawyer by Martindale Hubbell, and is listed in the Bar Register of Preeminent Lawyers.

Casey Anthony remains jailed on a charge of first-degree murder in the death of her daughter Caylee who was last seen in June of 2008, but she was not reported missing until a month later. Her remains were found in woods near the family's home on December 11, 2008. Investigators say the toddler's body was found with duct tape over her mouth.

Casey has pleaded not guilty and claims a babysitter kidnapped Caylee.

Thursday, March 18, 2010

Judge: No Delay in Blagojevich's Trial

Chicago Public Radio

A federal judge says the trial of former Illinois Governor Rod Blagojevich will take place in early June as planned. Defense attorneys wanted a five-month delay, in part because of a pending U.S. Supreme Court decision.

The Supreme Court is expected to rule this summer on what's known as the "honest services" statute, which figures into part of the prosecution's case against Blagojevich. His attorneys want the trial delayed until well after that decision comes down. But Judge James Zagel denied the request, noting the specific charges won't come up until late in the trial - presumably after the Supreme Court has ruled.

Blagojevich lawyer Sheldon Sorosky says the defense wanted time before the trial starts to review the Supreme Court's decision, and also to sift through all the documents provided by the prosecution.

SOROSKY: Judge Zagel unfortunately denied our motion, but he's a good judge, a smart judge and we will do the absolute best we can.

The trial is scheduled to start June 3rd. Sorosky says Blagoejevich, who's taken his claims of innocence to a reality TV show, plans to testify.

Warren Wilentz, Attorney and Political Leader, Dies at 85

New Jersey News

Warren Wilentz, one of the preeminent New Jersey attorneys and political powers in the state, has died.

Wilentz, 85, was considered the patriarch of the mighty Middlesex County Democratic Organization and served as its treasurer for many years.

His law firm, Wilentz, Goldman & Spitzer, is one of the most influential law firms in the state and raised hundreds of thousands of dollars for the Democrats, helping to catapult Brendan Byrne, Jim Florio and James E. McGreevey to the Statehouse.

Wilentz was paralyzed in a car crash in 2002, but managed to return to his law practice on a part-time basis about three years later.

Middlesex County Sheriff Joseph Spicuzzo, who also serves as the chairman of the Middlesex County Democratic Organization, said he was saddened to hear about the death of his old friend and treasurer.

"He was such a vibrant man, but after his accident, he was never the same," Spicuzzo said. "It took its toll. I'm going to sorely miss him."

Wilentz was the son of David T. Wilentz, the former state attorney general who prosecuted Bruno Hauptman for the kidnap and murder of Charles Lindbergh's son. Wilentz's late brother, Robert was an assemblyman and served as chief justice of the state Supreme Court for 17 years.

Wilentz served as Middlesex County prosecutor from 1956 to 1960. Then he became county counsel and worked in that post for seven years.

SF Attorney Awarded Thousands in Spam Suit

Mercury News

SAN FRANCISCO—A San Francisco attorney has been awarded $7,000 in damages for e-mail spam sent to his inbox.

A San Mateo County Superior Court judge ruled last week the seven e-mails Daniel Balsam received from Redwood City-based Trancos Inc. in 2007 were misleading and violated California's 2004 anti-spam law. Trancos is an Internet advertising business.

The law prohibits sending an unsolicited commercial e-mail that misrepresents the source or subject.

Trancos's attorney, Robert Nelson, said only someone who suffers losses as a result of the e-mail message can sue under the state's anti-spam law.

He says Trancos will appeal the ruling.

Lawyers on both sides of Balsam's case said it appeared to be among the first lawsuits by a consumer under the state's anti-spam law to be tried outside small claims court.