With deep gratitude for the awesome gifts of a glorious universe and our lives,
may we live to bless the world and each other with our care.
Amen
The Partners and Staff
Category Archives: Blog posts
Happy and safe Halloween
Some of our attorneys and staff gather to wish you and yours a happy Halloween. Aren’t they a booutiful group?
Beware Jury Duty Scam
The Kitsap County Sheriff warns of a phone scam. A man is phoning folks in the West Sound area and informing them that they need to pay a large sum of money to avoid going to court for failure to show for jury duty. A few of the details are summarized below, based on the Sheriff’s warning. The details may change as the scammer makes changes. If you get any kind of notice that you owe a court fee for a violation, check with the court or the sheriff’s office, before taking action.
Details
Contact: by phone
Caller: man who identifies as a court investigator with the Sheriff’s Department, sound credible
Threat: Warrant issued for your arrest
Demand: avoid arrest and erase (or “quash”) the warrant by paying a sum of money via a prepaid card, such as Green Dot prepaid Visa or MasterCard debit card, MoneyPak card, etc.
Usual amount: $2,000
Yasmin Clark & Tort Reform
Peter Klashorst (1957) [CC BY 2.0 (https://creativecommons.org/licenses/by/2.0)], via Wikimedia Commons
Tort reform limits justice for children
by John Groseclose, Partner
Tort reform has been sold to us as an easy way to reduce high medical costs and frivolous lawsuits. More accurately, tort reform limits the ability for ordinary people to get justice in our courts. It also makes us less safe. A tort is harm caused to a person by the actions or inactions of a person or corporation.
Here’s the story of young Yasmin Clark.
There are several forms that tort reform takes. One form raises the criteria so high that those harmed can’t file for relief at all. Consider the case of Yasmin Clark.
Yasmin was hospitalized as a toddler and again at 5 years old for severe lead poisoning due to inhaled paint particles. She had 10 times the level that recently raised the alarm in children in Flint, MI. She continues to suffer significant irreversible neurological damage due to the neurotoxin lead, according to a lawsuit filed on her behalf in 2006, after the second hospitalization. Cognitive and developmental damage is well documented, even at levels lower than Yasmin’s.
Tort reform could deny Yasmin her day in court.
Ten years after she filed a lawsuit, her guardian ad litem and she continue to fight for justice and the funds she needs counteract the damage done to her by the lead paint. The case has not yet come to trial. There have been many delays and several causes. One of the most egregious is the tort reform measures passed in Wisconsin while the case was in the courts.
Two “reform” measures are under a pay-for-play cloud
In 2011, several politicians in Wisconsin were facing a recall election. They had an urgent need to replenish campaign war chests. New evidence shows that they turned to paint manufactures with cases before Wisconsin courts, among others. A special investigation ordered by a judge into campaign funding uncovered emails and other documents that relate to what appears to be a pay-for-play scheme to raise funds.
NL, a defendant in Yasmin’s lawsuit, donates $750,000
The governor immediately asked his chief fundraiser for a plan. Among her first recommendations via email were to go after the “national tort reform community” for donations. The appeal she named was legislation. She specifically named IRL, presumably the IRL Group Limited which produces paint.
One of the major contributors to the campaign fund was Contran Corp, which owned NL Industries. NL is a paint manufacturer. Before the recall, the legislature had passed a “tort reform” law which made it impossible to sue paint manufactures. It required that the victim be able to prove that the airborne lead they inhaled was manufactured by the specific paint company. Since lead paint is very old and mostly in building that were rented, it is impossible to prove. It would have prevented Yasmin’s lawsuit altogether, if she had not filed five years earlier.
New law attempted when last of $750,000 arrived
The legislation, which did not pass at that time, was design to make the earlier ban retroactive. It meant that Yasmin could not recover the damages lead paint had caused.
Yet, RL persisted until the law was passed. In 2013, with the help of a RL lobbyist, they enacted the law that bars Wisconsin children who have been damaged by lead paint from getting medical bills, rehabilitation and living costs paid. This time it included Jasmin and all the other children in her lawsuit.
After 10 years there are still more delays
Both versions of the Wisconsin tort reform laws are being appealed. Waiting for the appeals to take place is yet another delay in a long list of delays for Jasmin and the other children. Their lawsuit was returned from the state Supreme Court to the Court of Appeals, recently based on a separate technical issue. Remember, these delays and appeals all are occurring before Jasmin’s case ever gets a hearing. At this rate, Jasmin may never get the compensation she needs and deserves.
Another function of these kinds of legislation is to run out the clock so that those who put our safety in jeopardy never have to pay. It makes the calculations when corporations know they are producing a harmful product easy. With tort reform laws in place it is cheaper to sell defective products and pay out small amount to those who are hurt or killed, than it is to make the changes needed to create a safe product.
Black lives matter, key to the rule of law
We talk a lot about the rule of law. A key part of the rule of law is the obligation of courts to protect the rights of those with less power from those with more. In other words, to protect the rights of the minority from the popular rule of the majority. That is what I believe U.S. District Court Judge James Robart was expressing recently when he declared “Black lives matter” in open court.
The Seattle Police Department and the city are under court order and court oversight. They are required to reform policies and training related to use of force, discriminatory policing, and use of force oversight and discipline. Judge Robart used the phrase “black lives matter” in stating one of his concerns of the case. He referenced statistics that showed disproportionate treatment of persons of color and how it resonates with him. Those concerns should resonate with us all. He expressed his continuing concern that the City of Seattle get police reforms right. Judge Robart said the excessive use of force in police departments across the country makes it important that Seattle get things right. In addition, he said the changes the court ordered will protect Seattle police officers from deadly attacks, such as those that have happened recently.
Getting policing reforms right
The setting was the fifth status conference since the 2012 consent decree to assess the progress toward the goals of the decree. The decree was a result of a Department of Justice investigation of the Seattle Police Department. Justice Department findings highlighted excessive force and disparate impacts on people of color. These failures were due to SPD’s systematic failure to implement adequate policies, procedures, training, and oversight.
The entire status conference is video #5 on the U.S. Courts website. https://www.uscourts.gov/cameras-courts/united-states-america-v-city-seattle Judge Robart’s concluding remarks begin at the 1 hour, 23 minute mark.
Competing rights weighed
Judge Robart examined the competing rights of the Seattle Police officer Guild and the citizens of the city. He was firm. He would not allow the rights of the citizens of Seattle to constitutional policing be held hostage by the union’s demands under collective bargaining. The clearly had a right to bargain collectively, but that right did not allow the union to violate the rights of citizens.
In a free society there are always competing rights. Our courts exist to weigh competing rights and judge equitably.
Secrecy allows child custody abuse to flourish
Decisions about child custody can have disastrous results
When a court appoints a guardian ad litem in a custody case, the responsibility can be more keenly felt than any other responsibilities. Guardians ad litem are charged by the court with investigating and reporting on the best interests of children in child custody cases.
At times the juvenile court system takes children from their parents. These are referred to as dependencies. The state alleges there is abuse, neglect or no parent that is fit to care for the children and removes children from the home. The judge often appoints guardians ad litem, social workers, or a Court Appointed Special Advocate (CASA) to discuss the matter with a judge. Although the court hearings are generally open to the public – the records are not.
The foster care system is similar in many states. As a guardian ad litem in Washington State, I found the investigative reporting by the SunHerald newspaper in Mississippi to be very interesting and disturbing. The information that has come to light in the counties on the Mississippi’s Gulf Coast is heartbreaking.
As reported in the SunHerald newspaper, it is unclear exactly what led to so many children being wrongly removed from their homes. Foster care is very costly in terms of public payment for foster care. More important is the cost of human suffering when children are uprooted from the security of their homes.
Secrecy is a big culprit
It is clear from the reports that secrecy allowed these wrongful acts to flourish undetected. Parents and attorneys are barred from having copies of any of the documents on which the determination to remove children to foster care are based. Court hearings are both secret and unrecorded. In many instances attorneys representing the parents are barred from meaningful participation in hearings.
I am familiar with some of the safeguards in Washington and there appears to be less secrecy in our courts. There are, however, secrets. You will not be surprised to learn that high profile lawsuits in Washington from time to time expose the Department of Social and Health Services. People read those stories and want change.
Copies of reports denied parents
The Hancock County Sheriff’s Office is investigating forgery charges against two Department of Health Services employees in Mississippi. Once the investigation became public others came forward with complaints. According to the article and author, secrecy, played a big part in allowing forgery to flourish. Parents could not have copies of the reports they were required to sign. Social workers used threats to get consent, according to the newspapers investigation.
In one case under investigation, a worker threatened a mother with the permanent removal of her children, if she did not sign the report. Once the worker told her she would not get a copy, the mother secretly took quick photos of each page with her cell phone.
When she followed up on the case, DHS office workers showed her a report with handwritten additions not in the report she signed. The additions said that the mother had agreed to the removal of her children and confessed that she drank nail polish remover. She was able to get release of her children after a few weeks because she had proof. Other parents, lacking proof, have not gotten good results.
Practices in Washington State
If you encounter a social worker who asks you to sign a document, make sure they give you a copy. A social worker may make a comment that you perceive as a threat. Whether it is or not, it may not be wise to start an argument. It may be helpful to ask the social worker for a 24 hour delay so that you can set up a consultation with a local attorney to be advised of your rights. You also have the option of calling the Northwest Justice Project for some advice over the phone.
Excessive force complaints and police reform
La
st week the Houston Chronicle reported the arrest of a therapist last March for resisting arrest. When she was pulled over for allegedly crossing a double white line, the young woman dialed 911 asking for another officer because she was afraid of the patrol officer who had threatened to taze her.
Was there provocation? Did the Officer use excessive force?
Ms. White’s attorney released the surveillance video video from the area dubbed with the official recording of the 911 call. For several minutes we see the officer standing by, shouting at times, while she calmly talks with the dispatcher. Then, when the dispatcher connects her with the officer’s department, he suddenly grabs his handcuffs and then grabs her. There appeared to be no provocation other than her statement to his supervisor that the officer was harassing her. She yells that he is trying to break her arm and we see parts of the struggle that ensues. The dispatch tape indicates that she rapidly goes from calm to incoherent as he manhandles her.
Conflicting Expectations
Ms. White screams, “Please get your hands off of me. What is wrong with you? … Why are you doing this?…I am a woman.” It was obvious that she expected to be treated with respect.
The officer was cleared by the department. They said that he was trained to be wary and he acted properly. From their standpoint, she should have gotten back in the car. Her failure to do that, justifies the manhandling and charges.
If she is convicted, the newspaper reports that she could lose her livelihood.
De-escalation and solutions
This video is less violent, when compared to much more egregious examples of police action since cell phone video began wide use. Ms. White wasn’t killed or badly hurt. It seems that changes in policing systems and police actions are needed. Police are called on to deal with people on their worst days. We call the police when our neighbor flips out or when we can’t deal with one of our relatives in the midst of a mental crisis. Officers receive very little, if any training, in de-escalation.
Several recent federal reports indicate the problem is not so much bad officers as a broken system.
In addition to the long list of situations that we ask police officers to handle that they are not trained to do, reports on individual police departments indicate that the system is broken.
This week the Justice Department issued its report on Baltimore PD. Key findings were that the PD’s system targeted African-Americans and failed to supervise and train officers. It called out “zero tolerance” policing and said it often resulted in violations of the Constitution. Under that program officers reported about 300,000 stop and frisk incidents in a five year period. Yet, an audit showed that in 2014 alone, there were more than 400,000 stops in a city of about 625,000.
Some examples are telling. The report cites one middle aged black man who was stopped 30 times in four years and never cited for anything. In addition, investigators also found evidence that some department leaders ordered officers to target black residents.
The attitude of the brass became crystal clear when one of the Justice Department investigators did a ride-along. The supervisor pointed to several black men standing on the sidewalk and told the patrol officer to stop and question them; then disperse them. The officer protested that he didn’t have a reason to do that. His boss’s reply was: Think something up.
Lax oversight, an us vs them mentality
The Baltimore report echoes findings in cities and towns across the nation. The ideas for police reform are many and varied. A robust complaint system is often cited. Yet, after reviewing a statistically valid sample of about 850 use of force reports, the feds concluded that supervisors approved all but a handful of complaints that they deemed questionable.
When internal oversight fails to curb abuse, individual citizens and groups can take their complaints to our courts. Lawsuits provide outside scrutiny and high profile examples that contribute significantly to creating the impetus for change.
Can a computer replace your attorney?
Photo credit: CC BY-SA 3.0
Robots and artificially intelligent computers have been replacing industrial jobs for a decade or more. Five years ago many of us saw IBM’s Watson beat two champions on Jeopardy.
Now Watson has given birth to ROSS, billed as an artificially intelligent lawyer. Several law firms have already hired ROSS.
Key components of lawyering cannot be replaced
But can ROSS actually replace the family attorney? I think the answer is a qualified no.
ROSS may be able to speed up legal research and stay on top of new case law better than attorneys, particularly in obscure areas of the law. ROSS cannot, however, provide the support you may need when disaster strikes and you are overwhelmed by all the unfamiliar tasks and decisions. ROSS can’t empathize either.
Insurance companies are already using artificial intelligence in making decisions, when you file a claim. Some colleagues are even speculating that in the not too distant future, insurance companies may use artificial intelligent devices. What if they sent a camera with artificial intelligence to pretrial depositions, instead of a lawyer, that could pose questions and film the proceeding. I wonder, though, how good the machine would be with determining which answers are truthful. During the deposition, the machine would be able to change the questions depending on answers. But what about being able assess when more probing is needed based in human interactions, such as inflection and expressions?
Attorneys must make decisions throughout a case based on her knowledge of typical juries and long experience with the temperament of the judge in the case. Most importantly, how will a computer judge how well you and witnesses will perform on the witness stand. ROSS cannot replace an experienced attorney’s judgment. American law is a very human activity.
Photo credit: CC BY-SA 3.0, https://commons.wikimedia.org/w/index.php?curid=140450
Our Silverdale office closes
We have closed our office in Silverdale, WA. All eight of our attorneys will be available in our Port Orchard office. We will continue to seek an office in north Kitsap County that better meets our needs. It is important to us that are offices are accessible to all of eastern Kitsap County. Continue to contact us at 360-876-9221.
Back the Blue Act guts drive for police reform
photo of 2015 protest of police brutality by Pax Ahimsa Gethen
Back the Blue Act guts incentives to improve policing
In the past two years we’ve seen example after example of excessive force by police officers. Although they too often result in serious injury and death, these assaults rarely result in convictions or even prosecutions for the officers. In some cases, however, victims or families bring successful lawsuits. These serve, as personal injury lawsuits usually do, to bring changes to business as usual. Lawsuits for police abuse and excessive force are an important part of the drive to reform training and policies in police forces.
Tamir Rice murder: No indictment, $6 million settlement
A good example of these system failures is the murder of 12-year-old Tamir Rice in Cleveland, OH, just five days before Thanksgiving. The prosecutor failed to prosecute. Yet, 17 months later the City of Cleveland reached a $6 million settlement with Tamir’s family. It is too early to see what changes might result in policing in Cleveland.
The new U.S. Senate “Back the Blue” Act seeks to remove civil penalties as a tool to reform police departments.
The “Back the Blue Act” has been offered in the Senate in reaction to the recent fatal attacks on police. The Act increases penalties for harming a police officers, no matter how minor.
Robust civil penalties, a tool for change
This blog has made the point often that personal injury lawsuits help improve safety for all of us. Limits on compensation undercuts the ability to hold law enforcement accountable for horrible harm it sometimes inflicts.
Robust civil penalties for police misconduct and excessive force are particularly important. It is much more difficult to prosecute a law enforcement officer for assault or murder than to prosecute a civilian. Separate criminal laws for law enforcement personnel give them wide latitude in the use of deadly force. Although these laws, along with improved training, are currently under review, right now criminal law offers little help to end police attacks. Right now civil lawsuits remain the key tool available.
Back the Blue in its entirety is a gross overreach to address assaults on police officers. Federal law already addresses assaults on law officers. If the law passes, police officers who use excessive force will continue to escape prison and there will be little access to the courts for victims. The best way to address the recent problems with assaults on police is to quickly move to reform.
John Groseclose, Partner, GSJones Law Group, P.S.