CJAC Backs Prop Press Event Successful Reform Bills Reintroduced

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					                                                                                                                                S e c o n d qua rt er 2010


                                  CJAC Backs Prop. 14
                                      one of the most important measures on the June
                                  ballot is Proposition 14, the “open primary” measure
                                  that is designed to stop partisan gridlock and further
                                  reduce the polarized nature of the Legislature.
                                      “the civil Justice association is supporting
                                  Proposition 14 because it will enable more candidates
                                  to run who cannot be ‘captured’ by narrow, special
                                  interests such as the personal injury lawyer industry,”
                                  said cJac President John H. Sullivan. He added that the
                                  need to support Proposition 14 was summarized well by
                                  the Ventura County Star in its editorial supporting the
                                  measure: “Memo to california voters: If you’re tired of
                                  dysfunctional government where ideology trumps good              CJAC President John Sullivan discusses results of the ILR report
                                                                                                   with Harris Poll Chairman Humphrey Taylor.
                                  public policy, vote yes on (Proposition 14) in June.”
                                      combined with legislation that in future years gives         when the last survey was done in 2008. It was released
                                  an independent commission the responsibility to redraw           at a press event in a Los angeles-area restaurant by ILr
“I don’t know anybody             legislative district lines, Sullivan said Proposition 14         president Lisa rickard and Humphrey taylor, chairman
who thinks this is actual         should lead to a Legislature better able to find balanced        of the Harris Poll.
medical-liability reform,         solutions to the state’s problems. to learn more, visit              John H. Sullivan, cJac’s president, was interviewed
or finds this meaningful                                      by La Opinion, the major Spanish-language newspaper
at all. You’re not going                                                                           in Southern california, about the situation in california
to see pilot projects that        Press Event Successful                                           and in particular, the impact of lawsuit abuse on Latino
might work well, you’re               the uS chamber Institute for Legal reform chose              businesses.
going to get watered-             california to unveil its latest analysis of the legal climates       the report’s findings were also covered by numerous
down demonstration                in the 50 states, and cJac worked closely with ILr to            national and state media outlets and online sites,
projects designed to let          stage and promote the event. the report, compiled by             including the Orange County Register, Sacramento Bee,
plaintiffs’ lawyers opt-          the nonpartisan Harris Poll, showed that california’s            Sacramento Business Journal, and tV and radio stations
out at any time. The bill         lawsuit climate was ranked at 46th, down from 44th               in Los angeles and Sacramento.
is a demonstration of
the interests of the trial
bar over the views of                             in sacramento
the American people.”
— Lisa Rickard, executive
vice president of the U.S.        Reform Bills Reintroduced                                            the Strickland bill would for the first time institute
Chamber of Commerce,                  Governor Schwarzenegger’s legal reform proposals             statutory law guidelines over filing class action lawsuits
on the “demonstration
                                  this year include two bills reintroduced in the regular          in the state. the bill would protect the rights of true
programs” purportedly
dealing with malpractice
                                  session after they were defeated in the special session          victims, while providing statutory standards for judges
reform contained in the           earlier this year. assembly Bill 2588 (audra Strickland)         to use when deciding whether to certify a class. class
massive federal health care       would provide comprehensive statutory reform of                  action law would be fairer, allowing the defendant the
legislation passed this spring.   california’s class action law while aB 2740 (niello)             same right the plaintiff already has—to appeal the class
                                  would impose limitations on damages in civil cases.              certification decision.
c I V I L   J u S t I c e   a S S o c I a t I o n        o f   c a L I f o r n I a

   the niello bill has three main points: It would limit                                     c H a n g e s at c j a c
punitive damages to three times actual damages; it would ban
punitive damages if a governmental or regulatory body told a
company that its product met standards and the product later                 Public Affairs Deputy
turned out to cause harm; and it would limit all non-economic                              Todd Roberson is cJac’s new deputy director
damages (sometimes called “pain and suffering damages”) to                                 of Public affairs, assisting in the management
$250,000.                                                                                  of cJac’s local action project, small contributor
                                                                                           committee, and various Pac activities. todd
A CJAC Win                                                                                 came to cJac from Mercury Public affairs in
    trial lawyers suffered a defeat when legislation that would              Sacramento, where he worked as an account executive. He also
have allowed shareholders to tie up corporate political giving—              spent four years as a legislative staffer, beginning as a Senate
and sue over alleged violations and drops in stock value that                fellow in Senator Jeff denham’s office, then as a Legislative aide
political contributions supposedly caused—was pulled from a                  for assembly Member tom Berryhill, and Legislative director
committee agenda by its author.                                              for assembly Member Jean fuller. He was born and raised in
    cJac strongly opposes aB 2321 (nava), which would                        fresno and received a B.a. in Political Science from uc Santa
have required corporations to report all political giving to                 Barbara, and a Master’s in Public administration from the
shareholders and allow them to file objections about the                     university of Southern california.
corporation’s political giving. It also would have allowed a
shareholder to request a return of his or her pro rata share of              New Accounting Coordinator
the funds, and it would have allowed an individual lawsuit by                Aricka Kiszli has rejoined cJac as the association’s accounting
the shareholder against the corporation for any violation or                 coordinator. She served as a temporary employee in a similar
for any contribution that negatively affected the stock price.               capacity several years ago. Before rejoining cJac permanently,
furthermore, it would have allowed the one-sided award of                    she most recently worked as an executive assistant for altria
attorney’s fees to the plaintiff.                                            client Services and as the bookkeeper for KP Public affairs. She
    It appears that nava pulled the bill from the assembly                   replaces Petra Bilson, who moved with her family to oregon.
elections committee agenda because of the mounting
opposition and likely lack of support from committee                                     in tHe courts

Defending Arbitration                                                        Expedited Jury Trials
                                                                                 the public has until June 18 to make comments to the state
   cJac has assembled a broad-based coalition in an attempt
                                                                             Judicial council about proposed rules that would allow for
to defeat legislation that would unnecessarily limit the use of
                                                                             expedited jury trials.
arbitration agreements. assembly Bill 1680 (Saldaña) would
                                                                                 the proposal would establish a new expedited jury trial
prohibit enforcement of an arbitration agreement if someone is
                                                                             process as an alternative, streamlined method for handling
being sued for a hate crime. While cJac is vigorously opposed
                                                                             civil actions to promote the speedy and economic resolution
to hate crimes, there is no reason that a voluntary, predispute
                                                                             of cases and conserve judicial resources. an expedited jury trial
agreement to resolve a future dispute through arbitration is
                                                                             is heard by a smaller jury, with the goal of completing the trial
                                                                             in one day. Participation would be voluntary, but the decision
   among the groups backing cJac are the california chamber
                                                                             of the jury would be binding on the parties, and appeals and
of commerce, the california Manufacturers and technology
                                                                             post-trial motions would be strictly limited.
association, and the california Hospital association.
                                                                                 cJac is working closely with court administrators to
                                                                             implement this new system, which has already been successfully
              For more information about the bills, go to                    launched in new York and South carolina. to comment, visit

                                                                             Court Funding Support
                                                                                 following up on a letter to Governor Schwarzenegger in
                                                                             december, cJac is urging the Governor and key legislators to
                                                                             arrive at a 2010–11 funding plan that avoids budget reductions
                                                                             for the judicial branch and allows the courts to better plan to
                                                                             reduce layoffs and furloughs while preserving the courts’ ability
                                                                             to handle civil cases.
                                                                                           B a L a n c e      S e c o n d      q u a r t e r       2 0 1 0

    In addition to working with the courts to implement shorter                toyota cars and trucks by filing suit against the beleaguered
civil trials, cJac is urging streamlining in asbestos litigation               company.
and protecting and encouraging the use of arbitration and                          Lawyers began swarming in an orange county federal
mediation.                                                                     courtroom in april to fight for lead counsel status in class action
                                                                               lawsuits and federal agencies are pursuing toyota as well. In this
              v e r b at i m                                                   context, the orange county d.a.’s move raised some eyebrows
                                                                               and charges of grandstanding.
Bogus Lawsuits                                                                     raising even more eyebrows is how he went about it,
                                                                               hiring high-profile plaintiff ’s law firm robinson, calcagnie
    “the bogus lawsuits that I’ve seen—the false claims cases,
                                                                               & robinson to take the case via a contract not disclosed to
the securities fraud cases, the cookie-cutter complaints—all
                                                                               the public but believed to include some kind of contingency
this has proven to be enormously lucrative in recent years. If
                                                                               fee. cJac President John H. Sullivan pointed out to the d.a.’s
you get to be lead plaintiff in one of these cases, you can get
                                                                               office and the media that rackauckas’s action goes against not
a settlement and retire forever. You know that the insurance
                                                                               only case law but the official position of the california district
company isn’t going to risk going to trial, and you’re going to
                                                                               attorneys association.
get a big settlement.”
                                                                                   Such contingency fees are prohibited by 1985’s Clancy v.
   Former White House Counsel Lanny Davis, Wall Street                         Superior Court decision. While an appeals court overturned
Journal Law Blog March 4, 2010.                                                part of that decision in 2008, that ruling was appealed and the
                                                                               Supreme court heard oral arguments on the case earlier this
Old-fashioned Virtues                                                          month—ironically, on the same day rackauckas was scheduled
    “I don’t approve of those people who go around chasing                     to appear in court on the toyota case.
ambulances trying to find someone to sue. I think the country is                    “When the d.a. tires of bashing toyota, I’d like to hear
in a bad enough state without people knocking it even more.”                   him justify breaking a law that remains in effect, even though
    Gillian Chapman, a 73-year-old self-described “old-fashioned               currently challenged,” Sullivan told the Orange County
lady” who says she does not want compensation from the UK’s                    Register.
National Health Service over the death of her husband, a GP who
contracted cancer after working in a hospital that was built using
asbestos. the telegraph, March 6, 2010                                                       a r o u n d t H e n at i o n

          a r o u n d t H e s tat e
                                                                               Malpractice Reform, Anyone?
                                                                                        It was not a huge surprise that the massive overhaul of
                                                                               the nation’s health delivery system enacted this spring did not
The D.A. and the Trial Lawyers                                                 contain one thing that might have had a major impact on health
   orange county d.a. tony rackauckas decided recently to                      care costs—national medical malpractice reform on the lines of
jump into the feeding frenzy surrounding problems with some                    california’s trend-setting MIcra law.

                                                       cjac in the courts
  Cases Heard…
  The California Supreme Court recently heard oral arguments in two cases      than 10 years ago he was censured for making disparaging remarks of
  in which CJAC filed amicus briefs:                                           a sexual nature. CJAC’s brief in opposition was filed in September 2009.
                                                                               (Haworth v. Superior Court [Ossakow])
  n Uphold: The issue is whether government can contract on a con-
  tingency fee basis with counsel to prosecute public nuisance actions,        Supplemental Briefing…
  in effect upholding the Clancy decision. CJAC’s amicus brief to uphold       n Additional damages: The Supreme Court ordered a supplemental
  Clancy was filed in April 2009. (See related article in Around the State.)   briefing by the parties to address the following issue: Should the court
  (County of Santa Clara v. Superior Court [ARCO, et al])                      overrule case law that holds that a party to a settlement agreement can
  n Arbitration: The principal issue is whether, in a medical malpractice      keep the proceeds while filing suit to avoid the release in that agreement
  case over cosmetic surgery, a neutral arbitrator’s decision should be        and obtain additional damages for fraud? CJAC’s amicus brief against
  vacated for his failure to disclose that while serving as a judge more       double-recovery was filed in August 2008. (Village Northridge
                                                                               Homeowners Association v. State Farm)
c I V I L   J u S t I c e    a S S o c I a t I o n             o f      c a L I f o r n I a

          although President obama had said he was open to the                                  “until about noon on (March 31), dozens of websites were
idea, the final bill contained only language authorizing states to                          identifying themselves with a red cross-ish logo and names like
create pilot programs to explore alternatives to lawsuits –programs                         ‘Va Medical center Palo alto,’ or ‘Va Hospital San francisco,’ or
that would be purely voluntary for plaintiffs’ attorneys.                                   ‘Va Medical center Gainesville’ though they had no affiliation
    the failure to enact malpractice reform came despite several                            with the u.S. department of Veterans affairs. they were actually
recent reports that clearly document how it can bring about major                           operated by plaintiffs’ law firms that were searching for clients
cost reductions.                                                                            with asbestos-related diseases,” writes Fortune’s roger Parloff.
    for example, a study of nearly 600 heart doctors released in                                “the sites were designed in ways that might easily confuse
april found that nearly one in four say they order medical tests                            elderly and infirm veterans into falsely believing that the Va
that might not be needed out of fear of getting sued. “We have                              itself was recommending that they see certain lawyers if they
known for a long time that where you live has an influence on what                          suffered from asbestos-related illnesses.”
kind of health care you get and how much health care you get,”
Lee Lucas, lead author of the study and associate director of the                                                  keep up witH cjac
center for outcomes research and evaluation at Maine Medical
center in Portland told the associated Press. the researchers                                   the cJac website ( is a great source for
suggest that targeting malpractice concerns could help reduce the                           the latest news and information about legislation, campaign
regional differences. “We need a way for docs to be less afraid of                          news, and what the trial lawyers are up to this week. resources
not ordering a test,” Lucas added.                                                          include:
    Ironically, then-Senator obama and then-Senator Hillary                                    • The Civil Justice Blog, updated regularly, which includes
clinton introduced legislation in 2005 that recognized the                                        news about cJac efforts, legislative actions, and great
problem. the “Medic” bill would have provided liability                                           examples of how far the trial bar will go to make
protection for doctors who quickly disclose medical errors and                                    money.
enter into negotiations with injured patients or their families for
compensation.                                                                                   • Up-to-date information on bills CJAC is tracking in the
                                                                                                  Legislative Center.
                                                                                                • Information on amicus briefs CJAC has filed in the
               t r i a l l a w y e r w at c H                                                     Appellate Center.

Stooping to a New Low                                                                           • And news articles and CJAC press releases in the News &
                                                                                                  Research section.
    Some trial lawyers will go to any lengths to get business. a
recent example concerns a group of personal injury firms that                                  remember that you can sign up to have the latest blog
set up official-looking Web sites that Fortune magazine said were                           postings delivered via rSS feed or email. Just click on the icon.
designed to dupe elderly veterans into thinking they were official                          and don’t forget to check out cJac at
Veterans administration sites in an effort to get clients.                                  and at for even more up-to-the-
                                                                                            minute information!

                    the civil Justice association of california works to reduce the excessive and unwarranted litigation that increases business and government
                    expenses, discourages innovation, and drives up the cost of goods and services for all californians. We are a non-profit, membership-
                    supported coalition of citizens, taxpayers, businesses, local governments, professionals, manufacturers, financial institutions, insurers, and
                    medical organizations. founded in 1979, cJac is the only statewide association working in both the Legislature and the courts to improve
                    california’s civil justice system.
                    Balance is published by the civil Justice association of california
                    1201 K Street, Suite 1850, Sacramento, california 95814
                    Telephone (916) 443-4900 • Facsimile (916) 443-4306 • E-mail • Internet
                    John H. Sullivan, President
                                                                                            for information on cJac membership please call (916) 443-4900
                    Kim Stone, Vice President – Legislation
                                                                                            Items in Balance may be reprinted without permission but credit should be
                    rick rivas, director of Public affairs
                                                                                            given to the civil Justice association of california
                    John frith, director of communications & research
                    debbie edgar, finance & operations Manager
                    fred J. Hiestand, General counsel

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