A lot of clients want a bulldog for an attorney.  They want someone to do the dirty work for them.

Attorney Charles Schultz, a Brigham City Attorney, took it too far.

Here are some very aggressive tactics he recently used:

• Called an opposing attorney a “lying piece of trash.”
• Called judges “revenue collectors in black dresses.”
• He consistently used a lower case j when naming judges in pleadings.
• Refused to use the word judge when referring to judges.

The Utah State Supreme Court said enough is enough.  Mr. Schultz was publicly reprimanded for that behavior.

The Supreme Court gave the Jenkins family a second chance in court today.

The dispute arose in 2005 when a water main broke on 3300 South in Salt Lake and flooded the Jenkins’ home.  Investigation revealed that the line had been installed in about 1957 and was near the end of its useful life.  During the decade before 2005, the line had broken near the Jenkins’ home about 9 time times.  In 2002, the Jordan Valley Water Conservancy District had decided to replace the line but delayed for financial reasons.

When no settlement could be reached, the Jenkins sued.  Judge Judith Atherton threw the case out of court.  She threw the case out, reasoning that the case was barred by the public duty doctrine.

The public duty doctrine prevents lawsuits against governmental entities when the government fails to protect the public.  The State of Utah successfully used it to defend itself when a mental patient escaped from the Utah State Hospital and injured an innocent member of the public.  The public duty doctrine says that the governmental is not liable in court for failing to protect the public.

The Court of Appeals disagreed with Judge Atherton.  The Court of Appeals said the public duty doctrine did not apply because the Jenkins were not merely part of the general public.  They were homeowners who lived adjacent to a pipe that had been slated to be replaced.  Because the Jenkins had a “special” relationship, they are allowed to sue.

Next, Judge Atherton reasoned that a 1987 law gave the Water District complete immunity.  The Court of Appeals agreed but found the 1987 law unconstitutional.

The Utah Constitution prohibits the legislature from closing the court house doors.  This is frequently called the “Open Courts” provision of the constitution.  The reason it was put in was that the founding fathers of the State were worried that special interest groups would lobby the legislature to close the court house doors to people who might have previously had valid claims against the special interest group.

Recent years have show that concern to be well founded.  Over the past 30 years, the legislature has been requested to close the court house doors.  Just last year, the legislature closed the court house doors to patients injured when hospitals hire doctors the hospitals no are bad doctors.  That legislation was sponsored by Senator Adams who happens to also serve on a hospital board.  I call it the “pass the trash” bill.

In the Jenkins case, the Court of Appeals ruled that the legislature closed the court house doors to the Jenkins.  Normally, businesses can be sued.  The delivery of water for a fee is a business.  Before 1987, all water companies could be sued for negligence.  It didn’t matter whether they were private or public.  After 1987, public water systems were given immunity.

This raises the question of whether the court made a decision that is good for the people of the State of Utah.  I believe it did.  We’ve seen an increasing trend of governmental entities taking on responsibilities that could be run privately.  Many cities in Utah recently took on the business of selling Internet services.

One may argue that the city needs to supply water because no one else would do it.  That isn’t true.  In many areas of the State of Utah, water is supplied by private companies.  Gas, electricity, telephone and internet are routinely supplied by private companies.

Giving a public utility immunity only puts the public utility at a competitive advantage.  It makes it harder for private utilities to compete.

Rather than giving public utilities immunity, the people of the State of Utah would be better off if governmental entities got out of competing with private businesses.

Gloria Allred has been in the news.  She “represents” a woman who claims to have been sexually harassed and assaulted by Herman Cain.

I put represents in quotation marks because the form of representation is different than the normal representation attorneys do for their clients.

Attorneys are taught in law school that when the represent a client, they owe a duty to that client to pursue the best interests of the client within the ethical rules.  The attorney must zealously represent the interests of the client but cannot allow the client to lie or commit fraud.

That’s what I don’t get.  What interest is Gloria Allred pursuing for this woman?  I can’t see any.  Further, how does going on the Today show, and other national news broadcasts help the client?  I can’t imagine.

You may remember when Gloria Allred “represented” a Hispanic woman who illegally worked for Meg Whitman.  Gloria Allred held a major news conference in which the woman told her story.  Many believe that Meg Whitman lost the California gubernatorial election over the issue.  I’ve scratched my head wondering how that Hispanic woman was benefited by those news conferences.  Common sense tells you that illegal immigrants do their best to fly under the radar.  Illegal immigrants do not hold press conferences proclaiming their legal status.

I hate to say it but I see only one person who benefits from the publicity.  That person is Gloria Allred. She gets free advertising and presumably picks up clients as a result.

I’m embarrassed to be in the same profession as Gloria Allred.  She puts her own need for publicity ahead of her clients.  She does not uphold the noble tradition to which attorneys should aspire.

Christopher Ladd was injured in a car accident in August 2003.  He was a passenger on a car in Salt Lake City on I-80.

His case is unusual because it involves two crashes and a dream.

To win an auto accident case, a plaintiff (Ladd in this case) must prove negligence on the part of the defendant and causation.  In other words, was the injury caused by the negligence.

In this case, Ladd lost because he couldn’t prove that the injury was caused by the negligence of the defendant.  Here is why.

There were two car crashes separated by several minutes.  Everyone agrees that Ladd’s vehicle was struck twice.  The dispute arises in deciding whether Ladd was in the vehicle at the time of the second impact.

While no eyewitness saw exactly what happened, the eyewitnesses thought that Ladd had been ejected at the time of the first crash and he lay in the median until the police discovered him. Because Ladd suffered a concussion, he had no memory of the accident and couldn’t comment.

About six months later, Ladd had a dream.  In his dream, he was not ejected after the first accident.  Instead, he exited the vehicle under his own power and was standing next to it when it was struck.  The second impact was what threw him into the median and caused the brain injury.

Judge Henriod threw the case out.  The court of Appeal agreed.  They said that a dream is not sufficient evidence to win a case.  Ladd could only win if he had some other sort of evidence.  That could include his own memory, witness statements, photographs, etc.  Because his only evidence was a dream, his case was dismissed.

At least not without getting her permission.

In May 2009, Sherri Lee Tatton and her husband owned real property in Layton Utah.  Castle Craze has a business there.

Apparently, Mrs. Tatton was on the property when a woman drove into  the lot, parked her car and then walked to a pizza restaurant a short distance away.

Mrs. Tatton, seeing this, followed the woman.  Mrs. Tatton went into the pizza restaurant and began screaming an expletive filled rant at the woman.  The woman then left, got in her car and tried to leave.  Mrs. Tatton stood in front of her car, insisting that the woman leave by a different exit.  The woman then called the police.

Besides violating dining etiquette, Mrs. Tatton also violated the law.  She was charged with disorderly conduct.

After conviction, she appealed.  The Court of Appeals upheld the conviction.

Judge Atherton ordered the Salt Lake Legal Defenders to pay for an expert witness for a defendant in a criminal case.  The LDA was not happy and sued Judge Atherton for violating its rights.

The Supreme Court today agreed with the LDA.  The Court said that Judge Atherton could not require the LDA to hire an expert for a crimional defendant without giving the LDA the right to tell it’s side of the story to the judge.

A little background may help.

Under the U.S. and Utah Constitutions, indigent criminal defendants are entitled to have defense attorneys appointed at the expense of the government.  That obligation usually falls on the counties.  To satisfy that requirement, Salt Lake County hired an independent company to hire and manage the defense attorneys.  That independent company is the Salt Lake Legal Defender Association.  The LDA is not owned and operated by the County.  It is a separate not for profit business.

The LDA receives its funding from Salt Lake County.

You may wonder why the LDA cares if it receives its funding from Salt Lake County.  Won’t the LDA just get more money to pay for the expert witness?  The answer is no.  Salt Lake County has created a flat fee contract with the LDA.  There are a few exceptions, but for the most part, the LDA must pay for everything out of the budget amount.  They can’t just pass on extra costs to the county.

Because the Supreme Court ruled in favor of the LDA, Judge Atherton must hold another hearing.  She must give the LDA the opportunity to participate.  At tht hearing, the LDA will likely argue that it is not obligated by its contract with the county to pay for the expert.  The LDA will likely win and the County will end up paying for the defense expert.

The Browns, famous as the polygamous family on the TLC television show “Sister Wives” has filed a lawsuit in federal court to legalize polygamy.  The lawsuit has been filed in Federal Court in Salt Lake City and names Governor Herbert, Attorney General Shurtleff and County Attorney Buhman as defendants.

Here is the Brown’s argument:

1.  The State of Utah does not prosecute adulterers or homosexuals;

2.  We did not obtain multiple marriage licenses;

3.  We hold ourselves out to be married but as far as the State of Utah is concerned, we are not legally married;

4.  We are being singled out for potential criminal prosecution.

They point to a 2003 U.S. Supreme Court case, Lawrence v. Texas.  In that case, Texas prosecuted a homosexual couple for engaging in homosexual conduct.  The U.S. Supreme Court held the Texas statute unconstitutional.

The Browns are careful to point out that they are not trying to end the ability of Utah to refuse to officially recognize polygamous marriage.  Instead, they want to stop Utah from prosecuting those who claim to be living in a polygamous marriage but have never obtained multiple marriage licenses.

It will be interest to see how this turns out.  It looks to me like Utah has a tough case.

ABC 7 News in Denver recently ran a story about Farmers Insurance Totaling a dog.  Here is the full story.

Here is the shortened version.  Marcia Pinkstaff owns a 9 year old lab mix named Sasha.  Sasha was hit by a car.  The driver of the car was at fault and was insured by Farmers Insurance.

The insurance adjuster told Pinkstaff that she could take Sasha to the vet once and maybe twice but that if Sasha needed more care they would total the dog.  In other words, no more vet visits would be paid for.  Instead, Pinkstaff would be paid the value of finding a used 9 year old lab mix.

Is it legal?  In Utah, it probably is.  Utah law is that dogs are simply property.  The full value of a dog is its replacement cost.  The law does take into account things like breed and training.  A seeing eye dog is more valuable than the neighborhood mutt.

Because dogs are property, they can be totalled just like a car.

An Ogden man sued an Ogden area doctor for medical malpractice.  In the case, John Lyon alleged that Dr. Donald Bryan, M.D. failed to diagnose a blood clot that eventually broke lose and caused a pulmonary embolism.  Lyon had a different medical doctor provide expert testimony at trial that Dr. Bryan was negligent and that the negligence caused the pulmonary embolism.  Dr. Bryan did not offer an evidence to dispute that.

The jury found that Dr. Bryan was negligent but that the negligence did not lead to any injury.  As a result, Dr. Bryan won the lawsuit.

I’ve heard that plaintiffs lose 80% of medical malpractice lawsuits in Utah.  Many may say that is because most suits are frivolous.  I don’t think it is fair to say that a suit is frivolous when the only third party medical evidence offered at trial favors the plaintiff.  Instead, I think something else is at work.

Jurors are afraid of losing access to medical care.  As a result, they are willing to give doctors the benefit of the doubt.  Even when they have to ignore the only evidence presented at trial.

In Allen v. Moyer, the Supreme Court denied a personal injury claim because the same parties had previously litigated a vehicle damage claim in small claims court.  The Court said that under Utah law, a party must bring all claims, arising out of the same occurrence, in one lawsuit.  Because the plaintiff had already filed a lawsuit in small claims for vehicle damage, the second lawsuit for personal injuries would not be allowed.

I personally don’t like the decision.  Even so, I can’t criticize the court for not correctly applying the law.  Ancient Utah cases lead to this conclusion.  The problem with the decision is that it gives insurance companies too much power to low ball.

When I started practicing law, 17 years ago, it was fairly common for insurance companies to use Kelly’s Blue Book when determining the fair value of a vehicle.  Insurance companies then moved to NADA values.  This was to their advantage, because NADA values are consistently lower than Blue Book values.  About 10 years ago, they moved to an appraisal system.  Almost all Utah insurance companies use the same appraisal service. The service gives a written opinion regarding the value of a car.  The appraisals are always lower than Blue Book and NADA.

When someone’s car is totalled and they don’t think the insurance company is offering fair value, small claims seems like a logical choice.  The car owner can sue for up to $10,000 in small claims.  The small claims judge can look at Blue Book, NADA, the appraisal and any other evidence and give an opinion as to the value of the car.  This is a fairly inexpensive process and goes rather quickly.

The new Supreme Court opinion prevents people with personal injuries from pursuing this route.  If they do, they will give up any claim for the personal injury.  Because personal injury lawsuits typically involve more money, that is not a good option.  Unfortunately, personal injury lawsuits also take longer to resolve.  This make force the injured person to either accept the low ball offer or wait a long time to get the matter before the same judge who decides the personal injury claim.

The legislature could fix this problem.  I suggest they do.  A bill could be introduced to specifically allow personal injury victims to pursue their vehicle damage claim in small claims while preserving their claim for personal injuries.