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.

The Supreme Court today issued a decision that impacts anyone who guarantees a loan.  Loan guarantees are rather common.  They typically arise when a child wants to purchase a car or a business wants to purchase real estate.  The guarantor is not primarily liable for the loan.  If the responsible party defaults, however, the guarantor must pay off the loan.

In today’s case.  Dr. Gary Stanford guaranteed a loan so that a business he owned could purchase real property.  What made this case a little bit more complicated than normal was that Dr. Stanford did not guarantee the entire loan.  He guaranteed only a portion.  His portion was $500,000 plus costs, plus interest, plus attorney fees.

The business defaulted and the lenders decided to sue Dr. Stanford.  That is common when the lender believes the business to be defunct.  Dr. Stanford defended by claiming that the money that had been previously paid on the note should be applied first to his personal guarantee and then to any monies owed on the note.

The plaintiff said no.  The money should go first to the note and then to the personal guarantee.

The Supreme Cour decided against Dr. Stanford.  The court said that the default is that any money paid is paid first on the note and second on the guarantee.  The exception to the rule is when the lender has a reasonable basis to know that the borrower intended that the payments be made on the guarantee first rather than the note.

So what does this mean in real life?  If you find yourself as a guarantor of part of a loan and you make some payments, make sure you write in the memo field of each check “payment on personal guarantee.”  It’s also wise to include a letter with the payment explaining that the payment is on the personal guarantee.

In 2005, Jerry Cooper caused to be filed a document with the Utah County Recorder’s office.  That filing would come back to haunt him.

The document bore the title ”Administrative Judgment.”  Now, that is not a document that I’ve ever seen filed at the County Recorder’s office. What’s important to understand is that the County Recorder doesn’t really examine documents to make sure they are legal before recording them.  Unless the document has a major error on its face, the County Recorder allows the document to be filed.  It’s then up to those concerned to determine whether it is valid.

In this case, the document said that it was a $4.5 million judgment against Lynn Davis.  Apparently, Judge Davis had signed an order quieting title to a piece of property.  Apparently, that did not sit well with Jerry Cooper.  In retaliation, he caused the “Administrative Judgment” to be filed.

So what is an “Adminstrative Judgment?”  It’s nothing.  It’s something that Jerry Cooper just made up.

That type of thing isn’t unheard of. There are dozens, if not hundreds, of “constitutionalists” running around this county.  They study the constitution, and more importantly, they study each other’s interpretations of the constitution.  At the end of the day, they come up with some pretty crazy ideas.

I was saw a criminal defendant argue that the District Court did not have jurisdiction over him because the U.S. flag in the court room had a fringe on it.  That fringe, destroyed the authority of the court.  Now, I’ve studied the U.S. Constitution.  No where does it say that if a court has a flag with a fringe, that court is invalid.  Even so, that defendant was passionate in his belief that the constitution prohibited flags with fringes.

I’m not sure where Jerry Cooper’s “Administrative Judgment” came from.  I can guess that under his interpretation of the U.S. Constitution, he was able to create his own court and hold a trial where he served as judge and jury.  The result was a $4.5 million judgment against Judge Davis.

If had created his own County Attorneys office and filed his judgment there, he would have been fine.  The problems arose when he filed his “Judgment” in the Utah County Attorney’s office.

The problem arose because if Judge Davis had attempted to buy or sell real property, a title company would have found the “Judgment” and would have refused to insure the transaction.  False ”Judgments” can have serious deleterious consequences when recorded with the Utah County Recorder.

In the end, Jerry Cooper was charged with four felonies for filing a “wrongful lien” with the Utah County Recorder.  He represented hmself at trial, never a good idea, and lost.  The jury convicted him on all four counts.

On appeal, he made some decent arguments.  Even if his arguments had some traction, he still lost.  Mostly because during the trial he did a poor job of preserving issues for appeal.

The Supreme Court issued a decision today, titled Selvig v. Blockbuster.  The case involves an alleged breach of a real estate purchase contract.  In footnote 8 of the dissent, the Supreme Court cites McKeon v. Crump.  That’s a 2002 case in which I was involved as the attorney for the McKeons.

I’m still sore about that case because I lost it and I didn’t think I should. Sometimes, as an attorney, you’ve got a case that you know is tough but you’ve got a shot.  If you win it, you feel great.  If you lose it, you chalk it up as a loss that your probably deserved.  In McKeon v. Crump, that was not the case.  I thought I would win the whole thing.

What happened in that case was that I came in late.  Another attorney had already filed the complaint and started discovery.  When I got hired, I realized  that my clients had not elected the remedy.  Before filing suit, they were either supposed to return the earnest money.  If they didn’t return the earnest money, they weren’t allowed to file suit.  They were considered to have “elected” their remedy, ie. forfeiture of the earnest money.

When I got hired, I realized that.  We went forward anyway.  One day, the opposing attorney called and wanted me to concede an issue in the case.  I told him I would if he would allow my client to return the earnest money and stipulate that the earnest money was returned timely.  He agreed.

At the close of trial, the opposing attorney argued that the earnest money had not been returned timely.  I argued that he had stipulated that it had.  The judge said that the timeliness of the return of the earnest money was not open to negotiation between the parties.  I said, “the requirement to return the earnest money was created by an agreement of the parties and therefore it could be waived by agreement of the parties.  The judge disagreed and my client lost at trial.

We appealed and lost again.

That case still smarts.  Opposing counsel made an agreement and then promptly breached it.  I still think my client should have won.

In AT&T Mobility v. Concepcion, the U.S. Supreme Court struck a serious blow to class action suits.

Concepcion, the plaintiff in the case, alleged that AT& T acted fraudulently while selling a cell phone.  Essentially, AT&T advertised and stated that the phone was free but then ended up charging Concepcion $30 for the phone.  Concepcion did not notice the error until after signing the contract.  Concepcion sued for return of the $30.  AT&T denied any wrongdoing.

Concepcion hired a law firm that attempted to frame the case as a class action.  They claimed that AT&T had done the same thing 17 million times.  Instead of suing for $30, they were now suing for $510 million.

AT&T defended by pointing to a clause in the cell phone contract that required that all cases against AT&T be arbitrated and that no class actions were allowed.  The California State court held that the clause was invalid under California law and allowed the suit to go forward.

The U.S. Supreme Court reversed.  The court was split with the conservatives stepping to the defense of AT&T and the liberals stepping to the defense of the consumer.  Justice Scalia wrote for the majority.  He said that a 1925 federal law preempted State law.  In other words, California was not allowed to apply its own law to the case.  Instead, the case was governed by the Federal Arbitration act of 1925.  He went on to explain that under federal law the clause in the contract was valid.  He justified the decision stating, “class arbitration greatly increases risk to AT&T . . . .”

The liberal minority on the court disagreed.  They said that the Federal Arbitration Act says that arbitration clauses are valid “save upon such grounds as exist at law or in equity for the revocation of any contract.”  Since California law allowed the contract to be revoked for fraud, the clause was invalid.  The liberal minority justified their decision by stating, “What rational lawyer would have signed on to represent the Concepcions in litigation for the possibility of fees stemming from a $30 claim. The alternative to a class action is not 17 million individual suits, but zero individual suits, as only a lunatic or a fanatic sues for $30.”

This holding has the effect of immunizing AT&T, and others, from small claims.  Arbitration is an expensive process.  If Concepcion had been allowed to go to small claims, she could have pursued her claim for a small filing fee, represented herself and gotten a $30 judgment plus her filing fee.  The only thing she would have lost would have been her time.

Under arbitration, she will be forced to pay 1/2 of the arbitrator’s fees.  Those fees would have been $300 per hour for each of the three arbitrators.  If the trial took 1/2 hour, she would have been forced to pay $225 in arbitration fees.  She would not get those back.

Arbitration is more expensive for most litigants because the Government subsidizes the court system by paying the salaries of judges, clerks and the rest of the court staff.  The government does not pay anything to arbitrators.  The parties pay that.

Larry Long is a Salt Lake attorney who practices criminal defense.  He is well know in the legal community for sending direct mail advertisements to criminal defendants.  I’ve seen a couple of his mailers.  They do not help the public respect the legal profession.  One of the mailers I saw was a reprint of a get out of jail card from the popular game, Monopoly.  The card was modified to include the name of Larry Long, criminal defense attorney.

Mr. Long was publicly reprimanded for violating ethical rules by overcharging clients.  In one case, he charged a client a flat fee of $6,600 in a DUI case.  The client fired Mr. Long after Mr. Long performed only six hours work.  Mr. Long sued the client to collect the full $6,600.  The Utah Supreme Court said that fee was excessive and that Mr. Long violated the rules of ethics that are applied to all lawyers.  The Supreme Court also found that Mr. Long had charged excessive fees in two other cases.

Mr. Long was also charged with allowing an employee to engage in the unauthorized practice of law.  Mr. Long was absolved of that charge.

The Daily Herald has run two articles in the past week about how payday loan lawsuits are clogging the courts.  Here is the first link and here is the second.

Startlingly, a recent study shows that payday loans constitute 62% of all cases filed in Utah County.

So why are they so high?  Two Utah laws contribute to the problem.

First, Utah has no usury law.  Any interest rate is legal.  This lets payday lenders charge any rate they want and that rate is enforceable in court.  Lenders sometimes charge up to 500% interest on those loans.

Second, Utah recently passed a law allowing employees of corporations to represent the corporation in small claims court.  In other words, payday lenders can avoid the expense of an attorney in their cases.  I’ve been in small claims court and seen a young person, obviously not law trained, handling dozens of payday lending cases for a corporate plaintiff.  This keeps costs down and makes it more economical for payday lenders to operate and file court cases.

Modifying either or both of those laws would slow down payday lending in Utah.

Lois A. Snowe-Mello, a Republican in the Maine Senate, recently sponsored a bill to limit a doctor’s liability when that doctor committed malpractice.  To her surprise, the doctor’s lobby asked her to withdraw the bill.

The New York Time argues that this is because doctors are becoming more liberal.  According to the New York Times, conservatives support tort reforms and liberals oppose it.  The logic continues, conservatives are traditionally business owners  while shift workers are traditionally liberal.  The New York Times caps off this reasoning by arguing that because doctors are leaving private practice and becoming employees, they are becoming more liberal and hence are opposing tort reform.

The problem with the New York Times’ reasoning is that it simply labels people without analyzing their motivation.  It is true that over the past 30 years or so, Republicans have supported tort reform while democrats have opposed it.  Republicans have supported the chamber of commerce while Democrats have supported labor unions.  Those labels assume that Republicans are conservative while democrats are liberal.  In the real world, many Republicans are not conservative and many Democrats are not liberal.  Unfortunately, in the real world, many politicians simply support themselves and effectively give their votes to whomever gives them the most support.

So what makes someone conservative or liberal?  Conservatives believe in not changing the law to pander to the wishes of a minority, conservatives believe in self responsibility and conservatives believe in trial by jury.  Tort reform is not a conservative ideal.  Tort reform seeks to change laws that have existed for hundreds of years by giving doctors and businesses carte -blanche permission to hurt other people through their own carelessness because juries can’t be trusted to make good decisions.

So how did the Republican party (the conservative party) end up supporting such an unconservative movement?

Numerous polls have been done on tort reform.  Interestingly, the polls show that the phrasing of the question is the most important indicator of what people believe.  If people are asked, ”should doctors be responsible to help those that they carelessly hurt” the vast majority of conservatives answer yes.  On the other hand, if a poll asks, “who do you support more, doctors or trial lawyers” the overwhelming majority support doctors.

Recently, the Utah State legislature passed a tort reform bill.  It gives hospitals immunity for hiring and retaining bad doctors, even when the hospital knows the doctor has hurt numerous patients in the past.  In speaking with Utah legislators, I discovered that the bill was pushed through by leadership with no real debate.  Senator Adams, who also serves on a hospital board, sponsored the bill by claiming that the bill was meant to overturn a recent Supreme Court decision made by activist judges.  The bill was never debated on its mertis.  President Lockhart, a rigistered nurse, never allowed any real debate on the bill.  Instead, in a closed Republican Caucus meeting, Republican leadership reiterated Senator Adams argument that the bill was meant solely to reign in activist judges.

Senator Adams understands the art of rhetoric.  By pushing a bill through as a bill to restrain activist judges, he was able to get the support from the Republican legislature.  If he had argued that the bill was necessary to protect the hospital, on whose board he served, because hospitals don’t trust the citizens of Utah to serve on juries and hold his hospital responsible when it knowningly hires and retains doctors with a track record of hurting people, I expect the bill would not have passed.

So why did the Maine doctors recently oppose tort reform?  Perhaps because they are still conservative but looked at more than the surface of the argument.  Why is it good for some doctors when bad doctors are held responsible for carelessly hurting patients?  Well, I think its rather obvious, that good doctors might realize it is in their best interest, and the best interest of their patients, to hold bad doctors responsible.  First, keeping bad doctors in the practice of medicine, increases competition faced by the good doctors.  I have a relative who is a doctor.  He is increasing frustrated by the pressure he is under to move from patient to patient.  He believes the quality of care goes down when the amount of time spent with the patient goes down.  Good doctors end up looking bad in the eyes of their employers when they can’t see as many patients in a day as a bad doctor.  At least the threat of malpractice liability gives good doctors some cover to hold the line against their employers.  Second, tort reform hurts patients who end up with bad results because bad doctors are not forced out of the profession.  I believe that most doctors want to practice good medicine and they care deeply for their patients.  It can be frustrating to good doctors to repeatedly see a bad doctor hurt patients yet continue to practice in the community because tort reform protects bad doctors.  Third, giving doctors immunity for carelessly hurting others, brings the entire profession into disrepute.

I firmly believe that true conservatives would not support tort reform if they sit back and think about it.  I was brought up being taught that if I carelessly break my neighbor’s window with a baseball, I’ve got to walk on over, fess

I’m sure you’ve seen the perp walk on T.V.  A prisoner is shown, being escorted by police, usually handcuffed and waring prison garb, often times trying to shield their face from the camera.  Michael Jackson did it several times.  Lee Harvey Oswald did it several times before he was shot by Jack Ruby during a perp walk.

Recently, the U.S. has come under criticism from some in France over the perp walk of the head of the IMF, Dominique Strauss-Kahn.

Why should we care.  Well, if it turns out he is guilty then I guess neither myself, nor anyone else, will have much sympathy for him.  He deserved a perp walk and a whole lot more.  But what if he is acquitted?

We claim to believe that the accused are innocent until proven guilty.  In 2000, in France, they went one step further.  They outlawed the perp walk until after someone is convicted.

We should do the same thing in the U.S.  The danger of the perp walk is that if someone is innocent, the images of the scruffy defendant in handcuffs and prison garb is forever in the imagery of the American public.  In the internet age, those pictures are never more than a few clicks away.

Someone who is wronfully accused is forced not only to defend themselves in court, but to also live the rest of their lives reminding people that they were wronfully accused.  The perp walk makes it that much harder.

So, why should we keep the perp walk?  There aren’t any good reasons.  Sheriff Joe Arpaio, from Arizona, has used the perp walk to embarrass those already convicted by forcing a string a inmates to walk in front of cameras. He is obviously doing so for political purposes.  While that situation is different, because the prisoners were already convicted, it does show the only reason that police do it now.  To create early pretrial publicity.  Doing so serves two purposes.  It creates political support for the police and prosecutors and it taints the jury pool against the suspect, making a conviction more likely.  Neither of these purposes are legitimate.

With no good reasons to keep it and some rather compelling reasons to get rid of it, the perp walk needs to go.  It’s time

A Payson woman must pay attorneys fees to the defendant for filing a frivlous lawsuit.

Kim Bowers filed a lawsuit against John Call regarding a boundary line dispute.  The case was assigned to Judge McDade in Provo.  Call hired an attorney and filed a motion for summary judgment.  When Bowers could not show any evidence to support her claim, Judge McDade granted summary judgment in favor of Call.

Judge McDade She lost the case on summary judgment.  In other words,