THIS IS A NEW BLOG SITE THAT FIRST INTENDS TO SERVE LAWYERS THAT HAVE BEEN IDENTIFIED BY THE OREGON STATE BAR FOR 'SPECIAL' TREATMENT. THAT 'SPECIAL TREATMENT' COULD DERIVE FROM A NUMBER OF SOURCES:
1. Perhaps you applied for appointment to an Oregon State Bar Committee or Section and were refused.
2. Perhaps you yearn to be voted to the OSB House of Delegates or Board of Governors and were unsuccessful
3. Perhaps someone complained about you and the Client Assistance Office was not helpful.
4. Perhaps you were singled out by the OSB's Disciplinary Counsel for 'special handling'
5. Or perhaps you are just unhappy with the Oregon State Bar and how it is serving the public and its membership
THE OREGON STATE BAR BULLETIN AND OTHER 'HOUSE COMMUNICATIONS' ARE TIGHTLY CIRCUMSCRIBED. THIS BLOG SITE SEEKS TO SERVE AS A FORUM FOR FREE SPEECH AMONG THE LAWYERS OF THE OREGON STATE BAR
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Our eclectic media is puzzled. What is it these (unwashed rabble) people are protesting over there at the financial district of New York City? Longshoreman- philosopher Eric Hoffer provides us with the easy answer. People who are down and out do not raise their voice when they are totally desperate and berift. I, like millions of others have been down and out, even homeless, for the last three years. This sort of poverty demoralizes folks and they lose their self esteem. When they are down and at the bottom of the well, the only occupation is survival. People are too paranoid to join hands. The last hand they saw wanted money. Or was posting eviction notices.
Once there is a glimmer of hope, they start to look around to see if there are any fellow travelers. Even then, they are still fighting among themselves for scraps. In that posture distrust of everything and everybody runs high. Who are friends and who simply want what little you have? Because everybody is impacted when there is financial foment of the magnitude of ours, just now.
So, what is the answer to the media’s puzzlement? The answer is to be found in TARP and the progeny. TARP is the $700 billion dollar troubled asset relief program. It’s departed inspector general, Neil M. Barofsky stated the problem succinctly in his New York Times Op/Ed article dated March 30, 2011. As a rescue vehicle for the banks, it was a success, “...by any objective measure”. Its broader goal of “...protecting home values and preserving homeownership”....was a nonstarter, because after that defined goal for those facing foreclosure was voted in, the goal of our leaders changed. Politics and lobbyists prevailed. Courage among our leaders vanished. And the Main Street goal v. the Wall Street goal was jettisoned. Main Street’s place in line for their troubles being relieved was Eliminated. Nada. Gone. No problem, our leaders said. Their weak-kneed, worthless substitute programs went nowhere. Banks $700 billion, People nothing.
That is the overarching problem of our nation. That is why people are waking up. Some self esteem is returning. That is why people are protesting. There are over 10 million of these folks who have lost home values and their home. Should be enough for a decent rally. And maybe even revolution. Mario Savio said it best in 1964:
“There's a time when the operation of the machine becomes so odious—makes you so sick at heart—that you can't take part. You can't even passively take part. And you've got to put your bodies upon the gears and upon the wheels, upon the levers, upon all the apparatus, and you've got to make it stop. And you've got to indicate to the people who run it, to the people who own it that unless you're free, the machine will be prevented from working at all.
So, Wall Street scribes wonder no more; this is what they are doing.
What does the Legal Profession really owe those who provide support for the legal system? Instead of offering appreciations which have become so banal, this is an attempt to analyze the seeds of success or failure and what can we do about those toiling in the Black Hole.
Career Paths -- I could be wrong and aggressively invite your feedback if I am. There does not seem to be a coherent career path for those that decide a legal support enterprise is their calling. Support staff for law offices seem to come from two sources: Experienced legal secretaries that become professional paralegals or pretenders that have virtually no experience, but have been to a course or two at the local business college. The pretenders want to be hired as high-paid paralegals along with all the hereditaments and emoluments that come with that 'lofty' status. Otherwise, the talented young who don't plan on college seem to opt for Intel or some other obvious road to a real career.
It has been a mystery to me for years how we wind up with so many competent, kind people who work legal support at our courtrooms. They appear to be rewarded with low pay and a lot of bs from the public and the lawyers. The final straw was in 2003 when the Supreme Court of Oregon saw fit to dispense with the court reporters on 24 hours notice and put the Oregon court system on reduced pay while not sacrificing anything themselves. Several court staff that shared their angst with me were dismayed at the lack of raises over the years while being called on to go the extra mile for a surly judge.
Law Office Support -- So, what is the key ingredient? It is ownership. Support staff who are successful in law offices take ownership of their corner of the legal world. For example, when I started out, I had the good fortune of stealing the office manager from the office of my departure. She immediately made it her business to ensure that all bases where covered. Payroll tax? you say. Estimated taxes mean what? Business licenses, personal property taxes, supplies, copy machines, computer maintenance were all black holes to me. Yet this wonderful woman took ownership of it all and kept me out of trouble on all fronts. When she moved on after almost ten years, her replacement from the ranks described above marched into my office one day, shortly after she was hired, grabbed me by the lapels and guided me through a fix on my Accounts Receivables that had plagued me for many years. It only got better after that because she took ownership of the difficult and the profane of my law office that successfully grew due to her diligence and competence.
Court Support Staff -- In twenty years in this business, I have worked in our busiest counties; Multnomah, Clackamas, Washington, Marion, Lane and even Tillamook County. Similarly, I have had cases at every appellate court in the State of Oregon and every level of our federal courts from the District Court of Oregon to the Ninth Circuit Court of Appeals and the U.S. Supreme Court. On reflection here is the shocker. I have virtually always received kind, knowledgeable, conscientious help from every court support staff I have ever worked.
I am not sucking up because I am not practising law now.
That court staff should be so competent, and taken for granted is a sobering thought as I reflected on my experiences in each of these legal arenas. Fred Leeson, a reporter for the Oregonian and the brother of Susan Leeson, formerly a justice on the Oregon Supreme Court, has written a history of the legal profession in Portland. It pays tribute to the high and powerful. The court regime in my local county is now at the point of complete turnover since I started. There was a hearty band of local law office support staff that formed an association that was quite active in the local legal support community, but became moribund when they did not infuse new blood to their organization. Local bar associations should be responsible for capturing the legal history of those who support our profession at the local level. This important piece of history should not be lost to the Black Hole.
There are many lawyers laboring out there in the Black Hole without appreciation nor recognition. At the same time one would need an abacus and a slide rule to calculate how many awards former Chief Justice Wallace Carson has obtained, deserving nil. There are many, many more support human beings in our profession that toil without adequate pay, without adequate appreciation nor do they have a voice from the Black Hole. There should be such a voice.
In the meantime, I am going to look at whether there is a clear career track for legal support staff anywhere other than the feeble business college courses around. I will report back. I implore local bar presidents to explore permanent recognition for the support people who work so hard for our legal system. These self-bouying awards to lawyers and judges are getting tiresome.
Our legal system has a contradiction which creates exorbitant attorney fees paid for by the public and nothing is being done about the problem.
The Downtown Law Firm: Having spent fourteen years in the insurance business, responsible for litigation across the entire United States, I have seen the problem of runaway attorney fees in virtually every state in our nation. Since then, I have been a plaintiff's attorney. In a nutshell, here is how it works. Typically, a plaintiff's lawyer, let us call this person Whiplash Willie, will take a case on contingency fee. If the attorney gets the client any money for a personal injury case, for example, the attorney will charge between 25% and 40% of the recovery for attorney fees. The theory behind this contingency fee is that the client would probably not be able to afford to pay the attorney a large retainer, so the client and the attorney become partners in asserting and processing the claim. Further, the attorney would normally be able to get the client 25%-40% more than if the clients tried to handle the matter for themselves, so the contingency fee is really not hurting the client in the final outcome--in theory and usually in practice.
Arrayed against the plaintiff's lawyer is the insurance defense lawyer. Usually "downtown law firms" are hired by the insurance company to defend against Willie's advocacy for his client, the plaintiff. Immediately there are competing interests. The plaintiff's lawyer is interested in a reasonable settlement at an early stage of the proceedings. Studies have determined that the longer a case is pending the higher is the ultimate settlement. The insurance defense attorney has a different perspective. The longer the case pends, the more money the insurance defense firm will get in attorney fees from the insurance company. Thus, Willie wants an early settlement and the insurance lawyer wants to go through the routine. The routine is what is known as the "feeding trough for young lawyers" at the insurance lawyer's law firm -- DISCOVERY. Our legal system decided long ago to ensure a system in which there would be few surprises at trial. Therefore, either side is entitled to a formal process to "discover" what the other side has in order to evaluate what future legal path to take. Since over 95% of all cases are settled without going to court, the discovery routine usually does not get used in the particular case.
There is the fly in the ointment. "Discovery" knows no bounds. It can go on almost forever and is the tool to pay the rent at the insurance defense firm. Discovery can either be done formally by subpoena and depositions or informally by voluntary disclosure. The insurance defense firm will never agree to voluntary disclosure because that is too efficient and would reduce the attorney fees to the "downtown" law firm. Willie, on the other hand, wants to process the claim with the least expense because often the plaintiff's attorney has to front the costs of processing the claim and would rather do things efficiently. It must be said that there are many 'Willies' out there that are not very good at what they do or knowledgeable about how to efficiently process a plaintiff's case. Moreover, there are many Willies that try to handle too many cases or otherwise procrastinate causing them to be unresponsive to information requests by the insurance defense lawyer.
If one looks at the big picture, which is seldom done either in the media nor by pundits, insurance companies are the "invisible bankers" of our financial system in the United States and are not very good at controlling their costs. Why not? The answer is easy, but often overlooked. When the country has a recession, you will read about the billion dollar losses at General Motors and the concomitant layoffs. You will read about housing market bubbles with countermeasures by the various industries involved. You will never read about an insurance company trimming their sails to become more efficient. They simply are awash in cash and have no incentive to address societal issues that trouble most citizens nor do insurance companies require their management to take meanful countermeasures to ensure the efficiency of their lawyers. Worse, there is sort of an unholy alliance between middle management at the insurance companies and their local law firms. Often, worse than the lobbying that goes on in Washington D.C., insurance company lawyers wine and dine middle insurance managers to ensure that they maintain the legal relationship. Once, I was the recipient of such favors which reduced itself to the pathetic. At an expensive dinner in downtown San Francisco, the insurance lawyer got quite drunk at a festive dinner. He lamented that several of the seasoned attorneys that he had trained had formed their own law firm and gutted his law office of the trial horses. Eventually, he started crying while begging me to ensure that our company would continue to use his law firm notwithstanding the loss of his trial lawyers. The insurance companies have little reason to press their lawyers to handle claims that go into litigation efficiently. How do I know this? While working for major insurance companies across the United States I analyzed this trend and was as guilty as anyone of not doing anything about this contradiction in our legal system. Everybody in the legal system is simply too comfortable in their particular role in what is a calamitously inefficient system that citizens pay in advance for every time they pay their local insurance company the premiums that stoke this legal process that costs everybody dearly.
There are simple remedies. First, the law should require that both sides engage in informal information exchanges without formal discovery (including no depositions--a simple recorded interview would suffice in most cases). Second, a mediation system should be required before formal discovery. Mediation could resolve over half the cases if there was a commitment by our legal system to require it in a universal manner. Third, attorneys fees of both sides should be subject to approval by a neutral knowledgeable panel which would include members of the public. Currently, attorney fees must be approved in probate and workers' compensation, so there is nothing revolutionary about this requirement.
Lee Iacocca recently wrote a book entitled "Where Have All The Leaders Gone? Nowhere is that more true than in our local legal system. Our state Supreme Court could exert leadership but is not interested in anything but their perogatives and self-bouying awards to themselves. Our state Bar association could assert leadership, but the opposite is happening. Our local Bar associations mean well, but have narrow interests. Essentially, across the United States and I have worked in the legal system across the entire United States, we have an oligarchy. This means that our legal system is governed by the few who have no interest in rocking the boat or changing things. Ostensibly, they would say they have the public's interest at heart, but where is the proof? Our legal system is sick and there is no ambulance on the way. Our legal system is sick and has no real leaders and no hospital. Lawyers have become an eternal joke and yet they operate as nothing bad is happening. What me worry? It is time for big changes in our legal system. But where are our leaders?
Lawyers Who Fall in Love -- Agnes Peterson from St. Helens appeared at a Washington County Bar Association meeting many years back to announce she was running for the Oregon State Bar Board of Governors for Region Four. She opened her pitch by announcing genuinely that she ".....loved lawyers." Her statement has always fascinated me. She meant it. It is so uncommon. And it should always be able to be true for all of us. We should love our brothers and sisters in this difficult profession.
For me, I love the profession and I love and admire other lawyers. Some of them don't love me back. My education began shortly after I returned from a short vacation and my stable-mate reported that "...his client" needed some help while I was away and announced to me what "he" was going to do for "his client". Wait a durn minute. This is my client that I asked my mate to cover for me while I was gone. My mate had inappropriately taken possession of my client for himself by virtue of this temporary cover for me. Odd.
Several years later during a romantic alliance with a special person, I referred her divorcing mother to a local lawyer, of whom I had respect, and all went well. Later, I fired a divorcing professional client because he was laundering money in an effort to hide some of his assets from his other half. I went to some effort to arrange for his alternative representation with this same local divorce lawyer. About a year later I got an odd call from her. It didn't take a Philadelphia lawyer to realize this local lawyer was turning on me in this matter that I had gratuitously arranged for her to handle for this client whom I had fired (and who still owed me lotsa money). Odd. Why would she go out of her way to do bad for me when I had just gone out of my way to do good for her twice?
My final story in the me'lange (though I could present quite a few others) was again a local lawyer (who I socialized with and served with in a professional organization) who specialized in something I knew how to do, but didn't like. So, he was first on my list to refer those sorts of cases to and I did so often since there were many clients in this sort of pickle. Lo, and behold, on an important client he also turned and began an aggressive advocacy against me for no apparent reason I could discern.
Now I can understand the give and take of normal advocacy, but even there, at the end of the case we should be able to at least have coffee together sometime, in lieu of meetings at the old Green Meadows where an even better social lubricant was available. What I don't understand at all is why a lawyer does not love a lawyer who is referring, without condition, good clients to that lawyer. Even more strange is why the turn and facility to insert the metal fang in the back. Where does that get anybody in our profession? If anybody has some insight here, I would love to have it. In the meantime, I will continue to love this dysfunctional profession housing dysfunctional judges abusing turncoat lawyers. Well, let me rethink this love business.......................
There are many things that make our daily life in the private practice of law more difficult than it has to be, yet we do nothing. For example, at the last House of Delegates meeting, one of our members questioned why we need the 'true copy' stamp on pleadings any more. We have an ability to control time requirements for the filing of things through our various professional organizations and the Oregon State Bar. The Public Affairs Committee of the Board of Governors lobbies for legislative changes each year under the 'law improvements' rubric and there is the Council on Court Procedures located at Lewis and Clark Law School that should be receptive to our recommendations for uniformity and changes for the better. If anybody can explain to me why the time to file an appeal to the Supreme Court of Oregon should be different than the time required for a Petition for Reconsideration to the same Court I would be happy to hear it. Otherwise, it is just one of those unnecessary time traps.
The Professional Liability Fund publishes a tome entitled Oregon Statutory Time Limitations which identifies our minefield. Each year about 200 PLF claims are filed related to time limitation claims and the PLF pays out over two million dollars each year on stupid lawyer mistakes pertaining to time issues that cause us pain and agony. There are over one hundred separate stautory time limitations in Oregon. I challenge any one of you to explain simply how soon a civil rights claimant must report a civil rights violation to the local state agency (BOLI) or the federal agency (EEOC) in order to preserve their 'rights', and the exceptions and tie-in between the two sets of rules. AND WE ARE DOING THIS TO OURSELVES, NO BODY ELSE! We have the ability to make all these time requirments mechanically simple and we have the ability to make sense of whether an Uninsured Motorist Claim must be filed within the two year tort statute of limitations or the six year contract statute of limitations. Yet we don't. Our leadership cares more about their own personal career gratifications than helping the law grunt on the street. That is the truth.
Here is how simple it could be. On the local state litigation level make everything thirty days. In the Uniform Trial Court Rules an Opposing Party must file a response to a motion within 14 days and a reply must be filed 7 days thereafter. You have to file an appeal to the Oregon Supreme Court within 35 days. Why not make all these ministerial time requirements 30 days. Every time issue that is simple could be 30 days, and to keep things moving most things would be governed by the thirty day rule. Virtually every procedural filing could fall within this simple time requirement. There could be rare filings that call for a different time requirement, but those would be the few exceptions. Yet we toil on. My red PLF time requirement book is over two hundred pages long. It should be twenty pages long at most. Why do we do this to ourselves?