Recently, the Utah Judiciary Committee completed a survey which
anecdotally indicated that the general public believes that the Utah Judicial System is infused with bias and is unresponsive to the public's needs. In reaction thereto Senator Hatch, Justice Zimmerman and others seem to opine that this public perception, though troubling, is incorrect. To these leaders and others, I would warn and hope that they do not disregard these "anecdotal perceptions." As an attorney, I believe this perception to be true, but I will be branded a whiner. Whether correct or not, it is often the masses' collective perception that is the catalyst to reformations, riots and revolutions.
We live in an era in which our legislators, judges and attorneys are enamored with legal complexity and are seduced by the legal process. They've never met a problem that could not be made worse with a cascade of undecipherable legislation. In the name of legal reform, powerful interest groups representing big business and big government have created innumerable special laws and layer upon layer of legal processes and procedures that are little more than the structural pyramids of old and the fraudulent pyramid schemes of today--monumental tombs for the powerful, built upon the backs of the common man, smothering justice, equity and fairness under their weight and offering benefits to their creators but offering nothing but false hope to the rest of us.
These legal pyramid schemes, only impressive because of their sheer volume and fraudulent ingenuity, provide no utility. They are structured upon a proliferation of documentation requirements, statutes of limitations, notice procedures and pre-litigation proceedings. They are justified by snake-oil sales pitches. They are attended to by ranks upon ranks of priests and priestesses we call law enforcement officers, investigators, attorneys and judges. They do nothing to resolve legal disputes, nor simplify the process but merely add expense, time and complexity thereto. Such legal pyramids include the Utah Governmental Immunity Act and the Medical Malpractice Act. As a result of these Acts and others, the ranks of priestly lawyers must explode to act as our spiritual tour guides among the tombs and new governmental investigative, regulatory and adjudicative agencies must be created, swelling government bureaucracies. The Utah Industrial Commission with its many divisions, including but not limited to the Anti-Discrimination Division, is a crowning jewel to these legal pyramid schemes.
Our High Priests--our Justices--chosen to administer these legal pyramids schemes, who should be chosen because of their diverse legal backgrounds, experience and ability to act objectively, are selected almost wholly from the ranks of attorney technocrats or politicians who have spent their careers financing, supporting and building such legal pyramids on behalf of their clients, the privileged, the rich and the powerful. As a consequence, whether consciously or unconsciously, they do their best to gut, by their parsimonious interpretations, any laws protecting the rights of working, middle-class Americans. Having never had to see legal issues from both sides or to have litigated on a shoe string for poor clients, such Judges are often arrogant, rude and impatient with attorneys and litigants whose cases do not involve momentous issues, have millions at stake or have unlimited litigation budgets. If ever remiss in their duties, accountable to no one, our Judges would probably cause those that appear before them to faint in surprise if they ever apologized.
Because of the vague laws or because of having been granted broad judicial discretion by these legal pyramids, when these same Judges are confronted with difficult decisions that could arguably be determined either way, they usually apply the following rules: (1) Whatever decision allows them to get to the golf course sooner on Friday afternoon is the right one, (2) when a dispute arises between parties of unequal economic or political strength, then the more powerful party should prevail, (3) when a dispute is being presented by lawyers or law offices of unequal prominence, then the more prominent lawyer or law office should prevail, (4) if a party can be forced into giving up his or her position, or if a difficult and lengthy evidentiary hearing or trial can be avoided by ordering the parties to undergo expensive evaluations (like custody evaluations) or engage in other procedures that they must pay for and cannot afford, then the Judge should so order, (5) if a technicality arises allowing a favorable decision for big government or big business then it should be summarily used, (6) if a technicality arises allowing a favorable decision for a politically or economically unimportant individual or a criminal defendant, then it’s a damn poor mind that can't think of some reason or excuse not to allow use of the technicality (Judge's don't have damn poor minds), (7) evidentiary rules should always be interpreted in criminal cases to benefit the government (unless the defendant is wealthy and politically connected) and in civil cases to benefit the economically or politically powerful–even if doing so creates a double standard when the same rule is being applied to a criminal case as compared to a civil case (i.e., the rules involving other bad acts); and lastly such Judges should always keep in mind that (8) the process and procedure is more important than the substance of a legal problem.
Another reason for the public's perception of bias are the double standards that have been created in our legal system. We view as unfair the Federal and State governments' unlimited access to information about our personal lives and its enormous power to prosecute its citizens without reimbursement when it is wrong, thus bankrupting both economically and spiritually thousands of innocent people.
We view as unfair the governments' power to collect money from its citizens without the fear of bankruptcy and through innumerable seizure methods with little due process. To the contrary, to collect a judgment from a judgment debtor, we must go through a lengthy series of hearings and court filings to collect a judgment that could be relieved by all too easy bankruptcy filings. We view as unfair, that to seek redress from our government for a civil or legal wrong, we often can't even get a government representative to answer the phone.
We further can't understand why if big business or big government asks the criminal justice system to prosecute an employee for stealing a $1 pencil set (which should not be tolerated), it will go after him with unfettered zeal, yet if we ask this same criminal justice system to prosecute a business when the evidence is conclusive that it is intentionally robbing its employees of thousands of dollars of wages or to require a governmental agency to perform its regulatory requirements, you will not see blanker stares on a milking cow. This is not justice.
Utahns should clamor for true legal reforms that do not become legal pyramid schemes, offering benefits for special interest groups but false hope and broken promises for the rest of us. Laws should have universal application and take into consideration all members of our society. If a special law for the medical industry cannot be applied to others, look for the dead bodies buried under its gleaming facade and you will find them. True legal reform should infuse the legal system with simplicity, fairness, and cost effectiveness. Here are just a few recommendations:
(1) Except for murder and other similar heinous crimes, irrespective of the parties in an action (whether governmental, individuals or businesses) there should be one statute of limitations for all criminal cases and one statute of limitations for all civil cases whether involving conduct that is intentional or negligent (this would include the elimination of special notice requirements for lawsuits against the government or medical health providers, etc).
(2) The elimination of special laws protecting the government or other interest groups. Laws should have universal application or should not be passed. (For instance, if constitutionally viable caps on damages are set, they should apply to all individuals and legal entities, not just to the government or particular industries).
(3) If the government pursues a criminal or civil suit against a business or an individual and loses, it should reimburse them for their legal expenses.
(4) Except for perhaps the Worker's Compensation Division of the Utah Industrial Commission, all of its Divisions and other such governmental bureaucracies should be eliminated and their enforcement authority should be turned over to the private sector.
(5) Creating judgment collecting procedures that: (a) start immediately following the Court or Jury's pronouncement of a money award and, (b) require the court's active involvement in ensuring payment of the judgment. (This is of more interest to middle-class Americans than perhaps any other legal reforms).
(6) Giving all businesses, whether corporations, partnerships, etc. the same legal immunities and protection from suit. (This would better ensure universal application of tort laws to businesses).
(7) Requiring insurance company's to allow their insureds to select their own attorneys and allowing defendants who are eligible to have a court appointed attorney to have their choice of attorney so long as the privately chosen attorney accept the same contractual rate paid by the insurance companies and governments to their own attorneys.
(8) If caps on damages that are constitutional are passed that still allow
punishment of malicious conduct and reimburse those with catastrophic injuries;
then, short of proving medical malpractice against the health care practitioners,
insurance companies, judges, and juries should be prohibited from second guessing the treatment choices and expenses incurred by an individual's own health care practitioner. (In other words, provide caps for the insurance industry and big businesses but then provide assurance that medical bills will always be paid--this adds fairness to both sides of this issue).
Loren M. Lambert
2001 ©
Saturday, July 7, 2001
Thursday, July 5, 2001
ERISA: The Federal World-Is-Flat Act
There are two dirty little secrets that insurance providers use to bilk the American public out of millions of dollars, while keeping their CEOs driving Mercedes Benzes and living in million dollar mansions. The first is that some legislators are addicted to insurance money and, to protect this source of campaign revenue, will pass ill conceived laws. These laws often have the effect of creating legal barriers to lawsuit that the rest of us do not enjoy and are another form of corporate welfare. The second is that there are professional medical experts who call themselves "Independent Medical Examiners," who, when provided with a small fee (usually $500 to $2,500) will, regardless of the honest facts, contrive a medical opinion supporting an insurance companies’ denial of benefits. It is well known that these "Medical Examiners," (who are accountable to no one but the insurance industry that pays them), pump out millions of questionable, misleading and sometimes patently false medical reports.
ERISA (Employment Retirement Income Security Act) is an example of one of these ill conceived laws that the insurance industry has muscled through the U.S. Legislature. ERISA allows the insurance industry to use with impunity these questionable medical examinations to deny disability benefit due to thousands of disabled American workers. How does this work and why should you care?
If, under ERISA, you had to prove that the world was round to obtain disability benefits, all the insurance company would have to do to defeat your application would be to find one or two credentialed persons, no matter how disreputable, corrupt, or scientifically questionable, to render an opinion that the world was flat. Once it had done this it would win, ipso facto, closed case, chop chop, over, done, no more questions asked, go suck on a raw lemon--the world is flat and you don’t get benefits, period, despite any and all evidence to the contrary! This is so because under ERISA you could not take the issue to court. If you did, unless you were lucky enough to draw a Judge who championed justice over systemic idiocy, the typical I’ve-got-my-eyes-on-a-Supreme-Court-nomination Federal Court Judge would have to side with the insurance company and declare the world to be flat. Why? Because ERISA requires the Judge to do so.
Case in point. Betty Roach worked for Bank One for 18 years and paid premiums to Prudential for disability benefits. She became chronically and seriously ill and had to leave her work. She presented extensive medical evidence to Prudential demonstrating her disability. Her own doctors (who are accountable to their Medical Associations and their patients to provide competent care or go out of business) and an Administrative Law Judge for the Social Security Administration found her to be completely disabled. Even her Bank One co-workers corroborated her pleas for disability. Despite this, Prudential denied her benefits.
For backing, Prudential purchased two medical evaluations from two doctors well known for supporting insurance company denials. Interestingly, its alleged experts, instead of listening to Ms. Roach’s complaints of severe pain, condemned her for complaining about it. Later, Ms. Roach’s own doctor found through objective neurological testing that she had severe nerve damage to the nerves in her arms, wrists and hands.
With no other recourse, Ms. Roach sued Prudential for her benefits. Prudential moved to dismiss the case under ERISA’s provisions that bar Ms. Roach from presenting her evidence of disability at trial. Federal District Court Judge Dee Benson, in reviewing Prudential’s request to dismiss the case stated, ". . . I may be tempted in a case like this to find that [Ms. Roach] in my view is disabled, candidly. It seems like there is a pretty good case here to be made for her disability, but in light of this standard . . . my job is only to see if there was some rational basis to support this even if I don’t agree with it. . . . [I]t seems like this system is harsher than our judicial system . . . [I]t would be nice in an ideal world if someone could go back to Prudential and say do you want to take another look at this? I don’t think she is faking it here."
So, although Judge Benson honestly believed Ms. Roach was disabled and that it was harsh and unfair, under ERISA, he had to confirm Prudential’s denial of benefits. One may question, "But the Judge did say Prudential had to have ‘some rational basis,’ and using the flat world analysis it is not rational by today’s standards to state that the world is flat." This is true, but ERISA bars Ms. Roach from presenting any evidence in court showing that by "today’s standards", just as it is irrational to state that the world is flat, it would be equally irrational to state that Prudential’s purchased doctors’ opinions are irrational. In essence, just as it is rational for an uneducated man to declare the world flat, under ERISA, no matter how baseless, erroneous or even fraudulent, these purchased medical opinions become by law irrefutable because the courts cannot be educated to the contrary. Hence, using the flat-world analysis, under ERISA, despite all the evidence to the contrary, it would be legally rational for a U.S. Court to decree the world to be flat.
Prudential’s own attorney, Mr. Jon C. Martinson, of Fabian & Clendenin, stated, "[W]e need to remember that under [ERISA’s] arbitrary and capricious standard the Court affords the administrator’s discretion in their review based on the administrative record. We are not here to determine whether [Ms. Roach] was disabled under our understanding. . . . I don’t think any of us does not sympathize with [Ms. Roach]. . . The law requires us to make a counterintuitive decision in this case. . . It is not our call and it is not the District Court’s call and it is not the Tenth Circuit’s call. . . . [T]he way [ERISA] is now we’re going to have to trade unfortunate and hopefully rare situations like this for overall efficiency."
In Plain English Prudential’s attorney, Mr. Martinson, stated that since Prudential’s denial was "rational", however scurrilous, doubtful, or "counterintuitive", under ERISA the Court had to confirm Prudential’s denial of benefits. He further stated that, under ERISA, it was and is irrelevant that Mr. Martinson, Judge Benson, and the Court of Appeals all knew and know that Ms. Roach was and is disabled. Consequently, under ERISA, despite Ms. Roach’s, "unfortunate and hopefully rare" plight, the Judge was required, "for overall efficiency", "to make a counterintuitive", or in other words, a completely wrong, decision.
So why should you care? Ms. Roach, by purchasing disability through her labor at Bank One, tried to do the right thing so that if she became disabled she could be independent. Currently, she receives $900 a month from Social Security. Without the additional disability income from Prudential, she is unable to even subsist and is about a year away from homelessness, about one year away from joining what Prudential knows to be a politically insignificant and powerless group of people. Knowing this, Prudential, its attorneys, the U.S. Congress, and the Federal Courts "for overall efficiency" do not give a hoot about this "unfortunate" group of people. However, you should, because we as a humane society have long since abandoned the creed that those who cannot work must be turned loose on the ice flows of life with a single blanket to drift away and die.
Prudential is banking on this. It is hoping that instead of taking action to change laws like ERISA, that the detrimental and rippling effects of Ms. Roach’s plight and that of millions of others will be felt by all of us who truly care and we, instead of Prudential’s CEO’s, will pick up the tab so that Prudential’s CEO’s will be able to keep Ms. Roach’s premiums to make their Mercedes payment next month. History has shown that, in the name of "overall efficiency," it is the nature of the powerful to slowly but surely erode our civil rights. Today it is Ms. Roach, tomorrow it will be you.
There has been and presently are cries to reform our system of civil justice. Most of these reform efforts start off with the principled goal to make our system of justice fairer for all of us but usually end up being highjacked by the powerful, again in the name of "overall efficiency," to take away or limit your rights to seek redress in the courts--the only place where there is an honest effort (not always achieved) to level the playing field between the powerful and the meek. Such is the case under ERISA. Beware of these attempts or you, like Ms. Roach, may find yourselves spreading your flat bedroll, under a flat overpass, beside a flat highway, filled with Prudential-CEO-driven Mercedes, roaring by on their way to the flat courts in your very, very flat world.
Loren M. Lambert
© May 20, 2002
ERISA (Employment Retirement Income Security Act) is an example of one of these ill conceived laws that the insurance industry has muscled through the U.S. Legislature. ERISA allows the insurance industry to use with impunity these questionable medical examinations to deny disability benefit due to thousands of disabled American workers. How does this work and why should you care?
If, under ERISA, you had to prove that the world was round to obtain disability benefits, all the insurance company would have to do to defeat your application would be to find one or two credentialed persons, no matter how disreputable, corrupt, or scientifically questionable, to render an opinion that the world was flat. Once it had done this it would win, ipso facto, closed case, chop chop, over, done, no more questions asked, go suck on a raw lemon--the world is flat and you don’t get benefits, period, despite any and all evidence to the contrary! This is so because under ERISA you could not take the issue to court. If you did, unless you were lucky enough to draw a Judge who championed justice over systemic idiocy, the typical I’ve-got-my-eyes-on-a-Supreme-Court-nomination Federal Court Judge would have to side with the insurance company and declare the world to be flat. Why? Because ERISA requires the Judge to do so.
Case in point. Betty Roach worked for Bank One for 18 years and paid premiums to Prudential for disability benefits. She became chronically and seriously ill and had to leave her work. She presented extensive medical evidence to Prudential demonstrating her disability. Her own doctors (who are accountable to their Medical Associations and their patients to provide competent care or go out of business) and an Administrative Law Judge for the Social Security Administration found her to be completely disabled. Even her Bank One co-workers corroborated her pleas for disability. Despite this, Prudential denied her benefits.
For backing, Prudential purchased two medical evaluations from two doctors well known for supporting insurance company denials. Interestingly, its alleged experts, instead of listening to Ms. Roach’s complaints of severe pain, condemned her for complaining about it. Later, Ms. Roach’s own doctor found through objective neurological testing that she had severe nerve damage to the nerves in her arms, wrists and hands.
With no other recourse, Ms. Roach sued Prudential for her benefits. Prudential moved to dismiss the case under ERISA’s provisions that bar Ms. Roach from presenting her evidence of disability at trial. Federal District Court Judge Dee Benson, in reviewing Prudential’s request to dismiss the case stated, ". . . I may be tempted in a case like this to find that [Ms. Roach] in my view is disabled, candidly. It seems like there is a pretty good case here to be made for her disability, but in light of this standard . . . my job is only to see if there was some rational basis to support this even if I don’t agree with it. . . . [I]t seems like this system is harsher than our judicial system . . . [I]t would be nice in an ideal world if someone could go back to Prudential and say do you want to take another look at this? I don’t think she is faking it here."
So, although Judge Benson honestly believed Ms. Roach was disabled and that it was harsh and unfair, under ERISA, he had to confirm Prudential’s denial of benefits. One may question, "But the Judge did say Prudential had to have ‘some rational basis,’ and using the flat world analysis it is not rational by today’s standards to state that the world is flat." This is true, but ERISA bars Ms. Roach from presenting any evidence in court showing that by "today’s standards", just as it is irrational to state that the world is flat, it would be equally irrational to state that Prudential’s purchased doctors’ opinions are irrational. In essence, just as it is rational for an uneducated man to declare the world flat, under ERISA, no matter how baseless, erroneous or even fraudulent, these purchased medical opinions become by law irrefutable because the courts cannot be educated to the contrary. Hence, using the flat-world analysis, under ERISA, despite all the evidence to the contrary, it would be legally rational for a U.S. Court to decree the world to be flat.
Prudential’s own attorney, Mr. Jon C. Martinson, of Fabian & Clendenin, stated, "[W]e need to remember that under [ERISA’s] arbitrary and capricious standard the Court affords the administrator’s discretion in their review based on the administrative record. We are not here to determine whether [Ms. Roach] was disabled under our understanding. . . . I don’t think any of us does not sympathize with [Ms. Roach]. . . The law requires us to make a counterintuitive decision in this case. . . It is not our call and it is not the District Court’s call and it is not the Tenth Circuit’s call. . . . [T]he way [ERISA] is now we’re going to have to trade unfortunate and hopefully rare situations like this for overall efficiency."
In Plain English Prudential’s attorney, Mr. Martinson, stated that since Prudential’s denial was "rational", however scurrilous, doubtful, or "counterintuitive", under ERISA the Court had to confirm Prudential’s denial of benefits. He further stated that, under ERISA, it was and is irrelevant that Mr. Martinson, Judge Benson, and the Court of Appeals all knew and know that Ms. Roach was and is disabled. Consequently, under ERISA, despite Ms. Roach’s, "unfortunate and hopefully rare" plight, the Judge was required, "for overall efficiency", "to make a counterintuitive", or in other words, a completely wrong, decision.
So why should you care? Ms. Roach, by purchasing disability through her labor at Bank One, tried to do the right thing so that if she became disabled she could be independent. Currently, she receives $900 a month from Social Security. Without the additional disability income from Prudential, she is unable to even subsist and is about a year away from homelessness, about one year away from joining what Prudential knows to be a politically insignificant and powerless group of people. Knowing this, Prudential, its attorneys, the U.S. Congress, and the Federal Courts "for overall efficiency" do not give a hoot about this "unfortunate" group of people. However, you should, because we as a humane society have long since abandoned the creed that those who cannot work must be turned loose on the ice flows of life with a single blanket to drift away and die.
Prudential is banking on this. It is hoping that instead of taking action to change laws like ERISA, that the detrimental and rippling effects of Ms. Roach’s plight and that of millions of others will be felt by all of us who truly care and we, instead of Prudential’s CEO’s, will pick up the tab so that Prudential’s CEO’s will be able to keep Ms. Roach’s premiums to make their Mercedes payment next month. History has shown that, in the name of "overall efficiency," it is the nature of the powerful to slowly but surely erode our civil rights. Today it is Ms. Roach, tomorrow it will be you.
There has been and presently are cries to reform our system of civil justice. Most of these reform efforts start off with the principled goal to make our system of justice fairer for all of us but usually end up being highjacked by the powerful, again in the name of "overall efficiency," to take away or limit your rights to seek redress in the courts--the only place where there is an honest effort (not always achieved) to level the playing field between the powerful and the meek. Such is the case under ERISA. Beware of these attempts or you, like Ms. Roach, may find yourselves spreading your flat bedroll, under a flat overpass, beside a flat highway, filled with Prudential-CEO-driven Mercedes, roaring by on their way to the flat courts in your very, very flat world.
Loren M. Lambert
© May 20, 2002
Tuesday, July 3, 2001
George W. Bush's Regressive Legal Plan
Earth to President Bush, carping HMO CEOs–the Patient’s Bill of Rights is not about whether a small handful of lawyers make more money than you and I could ever dream of. Nor is it about "unnecessary and expensive litigation." It’s about whether or not we the people have a right to seek redress in a court of law before a jury of our peers and be fully compensated for damage that is knowingly and sometimes maliciously committed against us.
So why do the fat cats of the insurance and medical industries and their politicians always want to artificially cap damage awards to persons they injure and decry any argument against such caps as "padding lawyers’ pockets?"
As I have learned, the answer is that the few lawyers and law firms that have reaped huge profits in contingency fees cases necessarily need huge capital reserves to fight and win against ruthless corporate opponents that are much more well-endowed than most lawyers and law firms. The damage-capping insurance and medical industry forces know this and therefore when they are rightfully sued, they don’t want an opponent worthy of their stature. They want to be the Nazi Panzer Battalion in a blitzkrieg against the Polish Cavalry. They know that without the right to go to court, patient’s rights are meaningless. (A law without a penalty and the ability to enforce the penalty in court is not a law but a wish). So by capping damage awards and barring access to the courts, they disarm their opponents and are free to hurt, maim and kill with impunity.
Trying to limit attorney’s fees by capping damages and limiting access to the courts is like trying to stop the spread of AIDS and limit the profit the medical industry makes from this fight by limiting the amount of treatment given the victims. Under both scenarios, it’s not the lawyers or the doctors who lose, it’s the victims, and it’s the wrong approach.
Just as beauty is in the eye of the beholder, all litigation is always "unnecessary and expensive" in the eyes of the wrongdoer. President Bush and his lackeys, many a wrongdoer among them, want to take your rights away. Don’t stand for it. Don’t allow the rich to artificially limit your access to the courts, nor limit your right to be paid 100% for the damages caused to you. If you think your lawyer’s contingency arrangement is too high, don’t sign the contract. Shop around. It’s the American way, whereas the regressive legal system the Bush administration wants is the Communist way.
Loren M. Lambert
July 3, 2001 ©
So why do the fat cats of the insurance and medical industries and their politicians always want to artificially cap damage awards to persons they injure and decry any argument against such caps as "padding lawyers’ pockets?"
As I have learned, the answer is that the few lawyers and law firms that have reaped huge profits in contingency fees cases necessarily need huge capital reserves to fight and win against ruthless corporate opponents that are much more well-endowed than most lawyers and law firms. The damage-capping insurance and medical industry forces know this and therefore when they are rightfully sued, they don’t want an opponent worthy of their stature. They want to be the Nazi Panzer Battalion in a blitzkrieg against the Polish Cavalry. They know that without the right to go to court, patient’s rights are meaningless. (A law without a penalty and the ability to enforce the penalty in court is not a law but a wish). So by capping damage awards and barring access to the courts, they disarm their opponents and are free to hurt, maim and kill with impunity.
Trying to limit attorney’s fees by capping damages and limiting access to the courts is like trying to stop the spread of AIDS and limit the profit the medical industry makes from this fight by limiting the amount of treatment given the victims. Under both scenarios, it’s not the lawyers or the doctors who lose, it’s the victims, and it’s the wrong approach.
Just as beauty is in the eye of the beholder, all litigation is always "unnecessary and expensive" in the eyes of the wrongdoer. President Bush and his lackeys, many a wrongdoer among them, want to take your rights away. Don’t stand for it. Don’t allow the rich to artificially limit your access to the courts, nor limit your right to be paid 100% for the damages caused to you. If you think your lawyer’s contingency arrangement is too high, don’t sign the contract. Shop around. It’s the American way, whereas the regressive legal system the Bush administration wants is the Communist way.
Loren M. Lambert
July 3, 2001 ©
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