f/k/a archives . . . real opinions & real haiku

September 11, 2003

Make Those Road Calls Unbillable, Unacceptable and Unlawful

Filed under: pre-06-2006 — David Giacalone @ 8:02 pm

It’s human nature to rationalize doing dangerous things that are enjoyable or profitable, or even just customary. That’s why I’m grateful for both tort lawyers and insurance companies (when neither group is being too greedy) — they just might help remove the plague of cell-phoning drivers from our roads. (update: our continued cellphone-driver blues)

I have ranted on this topic for years, to no avail. As I pointed out in 2000, in my Advocate This! column, for the now defunct Prairielaw.com:

Of course, driving while on a cell phone is dangerous. But those who do it use the excuses that parents might hear from rebellious teens: “Why don’t you ban radios, or talking to passengers, or eating in cars?” Well, radios and hamburgers don’t talk back, expect answers, make demands or require intense concentration. And, fellow passengers, unlike phone buddies, can see when traffic demands your attention.

The National Safety Council and others have recently highlighted studies that confirm and explain the “inattention blindness” produced by DWT [driving while telephoning] (see Study Finds “Inattention Blindness” in Behind ­the ­Wheel Cell Phone Users, Feb. 2003; via SW Virginia Law Blog, 06-29-03). But, there’s little hope that studies and articles will bring about less of this practice. What we need are strong laws to prohibit it (in its hand-held and hands-free forms, since they pose the same dangers), backed up by strong enforcement, and even some social stigma. What we also need is a strong financial disincentive to engage in DWP (Driving While Phoning). Naturally, that’s where the tort law and insurance premiums can play a very big role, especially in stopping business-related phone calls.

For law firms, at least, that financial message might come loud and clear from a Loudon County, Virginia, courthourse, in a trial that begins next week. As the Legal Times reported this week:

“A girl is dead. And the civil trial against Jane Wagner, the driver who hit her, has come down to this: Was Wagner a lawyer or a client at the moment her car struck 15-year-old Naeun Yoon?

“Next week, a Loudoun County, Va., jury will be asked to answer that question. And if the jurors find that Wagner was acting as a lawyer — speaking to a client on her cell phone — they’ll have to decide whether her law firm shares the blame. Wagner and her former firm, Palo Alto, Calif.-based Cooley Godward, face the prospect of sharing liability for the teen’s death and for the $25 million Naeun’s father, Young Ki Yoon, has demanded in compensation.” (“Can Cooley Godward Avoid Blame in Girl’s Death?”, by Siobhan Roth, 09-10-02) (also via SW Virginia Law Blog, 09-07-03)

Lawyers certainly don’t like to think that performing their learned profession could pose a physical danger to others, much less that their profit motive might cause them to value profits over the lives and safety of their employees or others. But, the world changed when lawyers started doing business on cell phones while driving — when, that is, their desks started weighing half a ton (and more) and travelling down public roads at great speed.

It is no secret that many law firms encourage, and others demand, that their attorneys be available virtually 24/7 to serve clients and partners. For many, 7 AM is not too early and 11 PM not too late to phone a colleague or client about a case. Many lawyers pride themselves on how much work they can squeeze in while commuting to and from work. (While, others greatly resent the obligation to be constantly available and productive.) If a basic sense of civic responsibility isn’t a good enough reason for a firm to ban the use of cell phones while driving, perhaps the spectre of injured employees, increased liability insurance premiums, and multi-million dollar tort liability will finally suffice.

Workindex.com has some sober advice for employers hoping to avoid liability for DWT. Your editor suggests, in addition to a formal rule against driving while phoning that should be in every firm’s employee manual, that a memo something like this be circulated and posted at every law firm:

Firm Policy on Cell-Phone Use While Driving

In One Word:

Don’t

In Case You Need More Words:

No employee or member of this firm shall engage in any form of firm-related business on the telephone, or by means of any other electronic or digital machine or gadget, while operating a motor vehicle. You shall not initiate such conduct, and shall immediately terminate any such communication if received while driving. Furthermore, no attempt shall be made to communicate with another employee of this firm when it is known or reasonably believed that he or she is operating a motor vehicle.

No work conducted in a manner inconsistent with this policy shall be billable.

No attorney, member or associate who violates this policy is fit to remain in this firm — not even those who think they are above the laws of physics, psycho-neurology, chance, or even of this State.

We’re not winking. We mean this.

UPDATE (09-15-03): Click here to see the story behind this MadKane.com song stanza, which was added today to Madeleine Begun Kane’s That’s What The Law’s About (and which is sung to the tune of “The Hokey Pokey”):

You’ve got to wield that phone
Right from the driver’s seat.
Your time is not your own
And you rarely sleep or eat.
But if you’re very lucky,
You won’t crash or run aground.
That’s what the law’s about.

Hyundai Horsepower Settlement Hogtied — Editor Cowed

Filed under: pre-06-2006 — David Giacalone @ 12:25 am

I dare you to read THIS article from Texas Lawyer/law.com without despairing for the American legal system, or at least its class action segment.   (“Intervenors Put Brakes on Settlement With Automaker,” Mary Alice Robbins, 09-11-2003)  I’m getting a headache just thinking about summarizing the terms of the settlement (coupons for Hyundai owners who were fooled by exaggerated horsepower claims), the fees for the settling lawyers ($2 million), the forum-shopping, the complaints of the 29 intervenor law firms (who wouldn’t share in the fees), etc., etc., etc.   You’re going to have to read the detailed article for yourselves, whiney, self-serving lawyer quotes and all.  I’m just glad I’m not a judge having to deal with coupon-centered class action settlements; and, especially glad not to be the law clerk.
 

As a tease, however, I’ll leave you with a couple of quotes from the Texas Lawyer article:


“[Hyndai’s attorney, Brian] Anderson says there is ‘absolutely nothing unusual, untoward, nefarious or sneaky’ about limiting negotiations to the counsel for one class action.  . . . We were not about to convene a convention or an open house of every lawyer in the country who had filed one of these suits.'”  
 

“The intervenors alleged in a memorandum to Sanderson that Hyundai chose to settle with Bundick because he was willing to negotiate without conducting formal discovery. ‘In fact, Bundick and his counsel conducted no formal discovery, took no depositions and made no document requests before settling the claims of 1.3 million injured class members for coupons — and a $2 million fee,” the intervenors alleged in the memorandum.'”

Hyundai Horsepower Settlement Hogtied — Editor Cowed

Filed under: pre-06-2006 — David Giacalone @ 12:25 am

I dare you to read THIS article from Texas Lawyer/law.com without despairing for the American legal system, or at least its class action segment.   (“Intervenors Put Brakes on Settlement With Automaker,” Mary Alice Robbins, 09-11-2003)  I’m getting a headache just thinking about summarizing the terms of the settlement (coupons for Hyundai owners who were fooled by exaggerated horsepower claims), the fees for the settling lawyers ($2 million), the forum-shopping, the complaints of the 29 intervenor law firms (who wouldn’t share in the fees), etc., etc., etc.   You’re going to have to read the detailed article for yourselves, whiney, self-serving lawyer quotes and all.  I’m just glad I’m not a judge having to deal with coupon-centered class action settlements; and, especially glad not to be the law clerk.
 

As a tease, however, I’ll leave you with a couple of quotes from the Texas Lawyer article:


“[Hyndai’s attorney, Brian] Anderson says there is ‘absolutely nothing unusual, untoward, nefarious or sneaky’ about limiting negotiations to the counsel for one class action.  . . . We were not about to convene a convention or an open house of every lawyer in the country who had filed one of these suits.'”  
 

“The intervenors alleged in a memorandum to Sanderson that Hyundai chose to settle with Bundick because he was willing to negotiate without conducting formal discovery. ‘In fact, Bundick and his counsel conducted no formal discovery, took no depositions and made no document requests before settling the claims of 1.3 million injured class members for coupons — and a $2 million fee,” the intervenors alleged in the memorandum.'”

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