ATTORNEY ATTORNEY

Document Sample
ATTORNEY ATTORNEY Powered By Docstoc
					                   SOUNDOFF

                            INSURANCE INJUSTICE NO NEWS
                       I read with interest the article by Marc Lieberman and Joan Huls (“The          deserves more extensive critical inquiry
                       Jig Is Up,” ARIZ. ATTORNEY, March 2005) and with particular interest            than it received, as it is by far the most fre-
                       the portion of the article dealing with the reprehensible conduct of            quently invoked contempt power in our
                       Allstate Insurance in the case of Crackel v. Allstate.                          municipal court system. Hundreds, if not
                           Certainly, no one who practices in the area of personal injury (and I       thousands, of our fellow citizens who have
                       see that neither of the authors does) would register the least bit of sur-      voluntarily appeared in municipal courts to
                       prise at learning of Allstate’s conduct in the case. While I was heartened      clear up overdue fines have faced the courts,
                       to learn of the court of appeals ruling, upholding a jury award against         been incarcerated and held in contempt
                       Allstate and its attorney for abuse of process, I couldn’t help but wonder,     regardless of their (in)ability or willingness
                       where, oh where, is the Arizona Department of Insurance while this, and         to pay.
                       lots of other equally disgraceful conduct from insurance companies like             For all the reasons set forth in Ong Hing
                       Allstate and Farmers, goes on? We do have a statute in Arizona called the       v. Thurston, 416 P.2d 416 (Ariz. 1966),
                       Unfair Claims Settlement Practices Act (A.R.S. § 20-461) that prohibits,        Gompers v. Bucks Stove & Range Co., 221
                                                          among other things, an insurer’s failure     U.S. 418 (1911), International Union,
            2005 EXPERT WITNESS GUIDE                     to in good faith effectuate prompt, fair     United Mine Workers of America v. Bagwell,
       www.myazbar.org
                       ARIZONA                            and equitable settlements of claims in       512 U.S. 821 (1994), et al., A.R.S. § 13-

      attorney                             MARCH 2005
                                                          which liability has become reasonably
                                                          clear cut. Unfortunately, the act does
                                                                                                       810 contempt proceedings are usually crim-
                                                                                                       inal in nature and ought to be treated as
                                                          not include a private cause of action pro-   such. Merely calling a non-summary and
                                                          vision; an action must be brought by the     non-obstructive contempt “civil” does not
                                                          Director of the Department of                make it so. Conclusions about the nature of
                                                          Insurance.                                   contempt are drawn from an examination
                                                              Anyone ever heard of the Director of     of the character of the relief itself. Bagwell,
                                                          the Insurance Department instigating         512 U.S. at 830. With regard to the
                                                          one? In my 25 years of practice, I never     civil/criminal nature of contempt, the U.S.
                         Avoid the                        have. So as I see it, because this depart-
                                                          ment either can’t or won’t do its job,
                                                                                                       Supreme Court has declared, “The label
                                                                                                       affixed will not be allowed to defeat federal
                          Woodshed                        attorneys like those in the Crackel case     constitutional law.” Id. at 838.
                            Judges and the Power          have to agree to hang in there with a            Unfortunately, the practice in our
                               of the Courts
                                                          case through all those discovery and         municipal courts of labeling proceedings
                                                          other tactics Allstate flung at them, for-   under A.R.S. § 13-810 “civil” denies the
                                                          ward who knows how much in advanced          accused the protections of criminal process.
                                                          costs, and then take the case beyond         The statutory wording of A.R.S. § 13-810 is
                                                          arbitration and file an entirely new         not only “awkward”; it has allowed courts
                                                          action for abuse of process. While I         to avoid examination of the character of the
                       admire the attorneys who persisted and took all those steps, I can’t help       relief itself, by relying on statutory language
                       but wonder: How many attorneys would be willing to do what they did?            instead. Such reliance is ill advised, given
                       I’m afraid the answer is: Damned few. Nor should they have to. We have          that judicial immunity does not bar the
                       a Department of Insurance whose alleged job is to regulate the insurance        award of attorneys’ fees to injunctive relief
                       industry. We have, at this time, wholesale abuses perpetrated by insurers       under a 42 U.S.C. § 1983 action. Pulliam v.
                       on injury victims, and we have a statute designed to curtail those abuses.      Allen, 466 U.S. 522 (1984) (award against
                           Why isn’t this department taking action against Allstate and all the        a magistrate applying a state statute found to
                       others involved in these abuses?                                                be unconstitutional).
                                                                                   —Jack Salvatore         Hopefully, the author of “Avoid the
                                                                                                       Woodshed” has inspired a discussion in and
                            Truly enjoyed Marc Lieberman’s article, as I have so advised him. And,     among his colleagues across this great state.
                            to answer the invitation for comment in the Editor’s column, I don’t       I have no experience in the author’s munic-
                            know if I agree that the disapproval of gamesmanship is a trend … but I    ipal court. However, I am certain that there
                            certainly hope so, as it should be!                                        are many municipalities that would benefit
                                                         —Loren Molever, Hymson & Goldstein P.C.       from a thorough appraisal of the process by
                                                                                                       which they invoke their contempt powers,
                            MORE ON CONTEMPT                                                           in response to pressure to boost collections
                            Thank you for a much-needed refresher course for contempt of court         of overdue fines.
                            (“Avoid the Woodshed,” ARIZ. ATTORNEY, March 2005). However, the                                  —Kristina J. Bohn-Elia
                            issue of nonpayment of criminal fines and restitution (A.R.S. § 13-810)           Tucson City Public Defender’s Office

8   A R I Z O N A AT T O R N E Y M AY 2 0 0 5                                                                                         w w w . m y a z b a r. o r g
                                                 SOUNDOFF


                                                                     GRAMMATICAL BATTLE OF THE SEXES
                                                                     I found the article “The Seven Deadly Judges” (ARIZ. ATTORNEY, March
                                                                     2005) most interesting, not because of its substance but because of the
                                                                     manner in which the author toes the line of Political Correctness.
                                                                         The author starts with a caution to the lawyer who fails to grasp “with
                                                                     whom he or she is dealing.” This, I believe, is the first, last and only use
                                                                     of the pronoun “he” in the article. The first three judges—The Stone
                                                                     Wall, The Inquisitor and The Stickler—are uniformly referred to as
                                                                     “she.”
                                                                         Under the rules of English grammar, the pronoun “he” does double
                                                                     duty: (1) It is the third person singular masculine, and (2) it is the third
                                                                     person singular gender indefinite. See FOWLER & FOWLER, THE KING’S
                                                                     ENGLISH p. 76 (“he, his, him, may generally be allowed to stand for the
                                                                     common gender”). The pronoun “she” does single duty only: It is the
                                                                     third person singular feminine.
                                                                         Thus the word “she,” when used in reference to The Stone Wall, The
                                                                     Inquisitor and The Stickler, suggests, at first blush, that the characteris-
                                                                     tics reflected in the titles of these judges are invariably, or at least pre-
                                                                     dominantly, female. This suggestion is reinforced not only by the fact that
                                                                     lawyers, in contrast to the judges, have previously been referred to as “he
                                                                     or she” but also by the fact that all other judges mentioned in the article
                                                                     are referred to by the use of the title given to them by the author, rather
                                                                     than by the use of a pronoun, masculine or feminine. Of course, this
                                                                     usage could have been employed with respect to the first three judges
                                                                     also, if the characteristics exemplified by those judges were not consid-
                                                                     ered to be female.
                                                                         It is only when the reader realizes that the author has chosen to be
                                                                     politically correct that he understands that the author is not contending
                                                                     that the characteristics reflected in the titles of the first three judges are
                                                                     peculiarly female characteristics, thus illustrating the fact that the evil of
                                                                     Political Correctness is that it sacrifices clarity of exposition on the altar
                                                                     of group approbation.
                                                                                                               —George E. Reeves, Denver, Colo.

                                                          Arizona    Editor’s Note: In fact, the gender of the fictitious judges was as follows: Four
                                                                     female judges (Stone Wall, Stickler, Professor, Innovator) and three male
                                                     Attorney is
                                                                     judges (Inquisitor, Wanderer, Abuser). We’re sure that all means something,
                                                         proud to
                                                                     but we’re not sure what.
                                                       provide a         Despite the King’s English, ARIZONA ATTORNEY generally adheres to the
                                                       forum for     ASSOCIATED PRESS STYLEBOOK (except in citations of cases and statutes, when
                                                   members to        we use THE BLUEBOOK). The AP STYLEBOOK advises that text “should not
                                                     voice their     assume maleness when both sexes are involved” (p. 278). That was certainly the
                                                 opinions. Send      case in this story, and there is nothing “gender indefinite” about that.
                                                        letters to
                                                     Tim.Eigo@       WHAT READERS ARE NOT LOOKING FOR IN 2005
                                                 staff.azbar.org     I write in response to Grant Woods’ wish list that appeared in the February
                                                                     2005 edition of ARIZONA ATTORNEY. Mr. Woods wrote he is “gayed out”
                                                                     after being “bombarded with gay lifestyles and gay issues” in 2004.
                                                                     Accordingly, he says, he needs a “respite.”
                                                                         Wouldn’t it be nice if gay and lesbian citizens could take a “respite”
                                                                     from the discrimination that they face? How nice it must be for Mr.
                                                                     Woods, a man of power and privilege, to be able to ignore the important
                                                                     civil rights issues facing a sizable minority population.
                                                                         The converse is not true; GLBT people are reminded on a daily basis
                                                                     of their second-class citizenry in the United States. They are not only


10   A R I Z O N A AT T O R N E Y M AY 2 0 0 5                                                                                       w w w . m y a z b a r. o r g
denied the basic right to have their unions
recognized under state law, but also are
denied many of the benefits that are atten-
dant to such recognition, ranging from
inheritance rights and shared insurance cov-
erage to preferential tax situations. But the
issue of civil unions or gay marriage is
rather inconsequential in comparison to the
daily fight against pervasive homophobia
and heterosexism—two societal ills from
which gays and lesbians do not have the
luxury of a six-month “respite.”
    Non-heterosexual people can be fired
from their jobs on the basis of their sexual
identities. They are frequently targeted as
the victims of hate crimes. And they are
demonized in a multiplicity of ways for
political gain.
    So, while the former state attorney gen-
eral is free to watch as many Andy Griffith
episodes (without Gomer Pyle) as he wish-
es, someone who is supposed to be devot-
ed to serving the interests of justice and
equality under the law ought to also spend
some serious time thinking about how his
tongue-in-cheek satire insults those who
work tirelessly to achieve civil rights for all.
           —Henry F. Fradella, J.D., Ph.D.
                  Professor of Justice Studies
              Scottsdale Community College

I appreciate Grant Woods’ effort at levity in
the February 2005 issue, and I am sure he
intended his remarks about being “gayed
out” as such. But stop for a moment and
ponder just what he wrote: “I’m tired of
hearing about another group’s struggle for
civil rights. Let the injustice continue—just
for six months—so I can take a break.”
    At least Marie Antoinette offered
dessert as consolation.
                     —Brendan N. Mahoney

Grant Woods, whom I like and respect
greatly, is indeed lucky to enjoy a “lifestyle”
that includes health insurance for his entire
family as well as innumerable other privi-
leges he no doubt takes for granted as a
birthright. In my individual capacity and as
a member of the Arizona Bar whose dues
support this publication, I request that
Grant’s future attempts at humor—to
which I look forward—avoid trivializing the
debate involving the civil rights of any of
Arizona’s minorities. Having said this, I am


w w w . m y a z b a r. o r g                       M AY 2 0 0 5 A R I Z O N A AT T O R N E Y   11
SOUNDOFF

                             positive that Grant regrets his unintentional slight.                            lesbian and gay families in Arizona and co-
                                                                               —Patience T. Huntwork          sponsored legislation that would prohibit dis-
                                                                                                              crimination against LGBT people in the
                             Mr. Woods states that he needs a break from discussing every possible ram-       workplace. She doesn’t own a TV.
                             ification of gay life in America.
                                 My heart goes out to Mr. Woods. He obviously has endured a lot this          I am disappointed with the State Bar’s deci-
                             year.                                                                            sion to publish the article titled “What I’m
                                 My partner and I have been together for 21 years and for those 21            Not Looking for in 2005.” The paragraph
                             years have endured hearing people talk about us as though we are an              titled “NO GAY ISSUES FOR SIX
                             annoyance. We pay our taxes, serve our country and our community. Our            MONTHS” was hurtful and offensive.
                             relationship, and many like ours, survive despite the lack of support from       Disclaimers and caveats such as “Opinions in
                             families and our communities. We watch while other couples get married           the magazine are those of the authors and
                             at the Little White Wedding Chapel in Las Vegas and receive rights that          not necessarily those of the State Bar of
                             we are still denied.                                                             Arizona …” do not shield the State Bar of
                                 We also deserve a break. We need a break from the hypocrites who talk        Arizona from moral responsibility for its
                             about the sanctity of marriage in a country with a divorce rate that hovers      actions.
                             at 50 percent. We need a break from people like Mr. Woods who are                    Unfortunately for my gay friends, they
                             “gayed out” and think that our daily struggles are fodder for a humorous         are unable to take a “respite” from their lives
                             column.                                                                          while Mr. Woods takes his. Every time a
                                 My request for a less annoying year is to be granted the right to pro-       straight couple kisses or hold hands in pub-
                             tect my loved ones.                                                              lic, gay observers are reminded of the social
                                                                             —Revi Meicler, Scottsdale        inequalities that exist in our society.
                                                                                                                  Such a publication choice spreads a mes-
                             Mr. Woods, how easy for you to ask for a “respite” from gay issues for the       sage of hate and disrespect for hardworking
                             next six months! As a straight man, you can rest at home and watch Andy          gay Americans and is particularly dishearten-
                             Griffith, blissfully unaware of and unconcerned with the daily discrimina-       ing coming from a state bar association.
                             tion that your lesbian, gay, bisexual and transgendered neighbors suffer.        Please have your staff re-read Mr. Woods’
                             Gay and lesbian couples in Arizona don’t even have the right to bury their       article after they are reminded of the follow-
                             partners when they die, much less enjoy rights of inheritance, medical           ing [the correspondent appended the State
                             decision-making, and other basic rights that you take for granted.               Bar of Arizona Mission Statement, Long-
                             Moreover, LGBT people are daily targets of hate-filled speech and action.        Term Vision and Core Values, too lengthy
                                 “Not that it’s not important,” you said as an aside in your editorial.       to be reproduced here].
                             You might as well have added “I just don’t care” to the end of the sen-                                      —James Christian
                             tence.
                                 One would understand if you were gay. It’s completely reasonable to          What a curmudgeon Grant Woods is! So
                             think that a lesbian or gay person would want a break. After all, it’s the       many things floating around in public dis-
                             LGBT population that is hated and reviled by the Christian right, who is         course overwhelm us—including constant
                             attacked as immoral and unnatural by politicians throughout the country.         reports of casualties in Iraq, immigration,
                             It’s members of the LGBT community who are victims of hate crimes                and, lest we forget, Paris Hilton. Apparently,
                             every day. It’s LGBT people who are fired from their jobs solely for being       Mr. Woods is willing to tolerate hearing
                             who they are. Who wouldn’t want a break from that?                               more about these things. But when it comes
                                 But no, you just want a break from hearing about LGBT people.                to benign lawyer advertising, celebrity trials
                                 Well, Mr. Woods, let us not interfere with your vacation from gays. And      and the lawyers who comment on them,
                             in July, when you’ve had your “respite,” when you’re no longer “gayed            and—horror of horrors!—the mere mention
                             out,” I’d be happy to catch you up on what you’ll have missed.                   that gay people want to have their families
                                 During your respite, nearly 15 percent of all gay teens across the coun-     recognized on equal footing with other fam-
                             try will have attempted and/or committed suicide. Roughly 500 crimes             ilies in our society, these things go too far for
                             motivated by hatred of LGBT people will occur in the United States. The          Mr. Woods.
                             Arizona Legislature will have sent a “postcard” to Congress, memorializ-             To the legal community in Arizona, and
                             ing the state’s approval of a constitutional amendment to ban gay mar-           to its gay members in particular, Mr.
                             riage. And LGBT teens in Arizona will have heard anti-gay slurs about 26         Woods’ message is straightforward: I’m sick
                             times per day.                                                                   of you, please go away now, because I want
                                 I hope Andy Griffith is good.                                                2005 to be “less annoying.” This is an
                                                                                      —Kyrsten Sinema         insult, and you should be ashamed to print
                             Kyrsten Sinema represents District 15 in the Arizona State Legislature. She      it on behalf of the flagship publication of
                             recently introduced legislation that would establish domestic partnerships for                                  —continued on p. 47



12   A R I Z O N A AT T O R N E Y M AY 2 0 0 5                                                                                                w w w . m y a z b a r. o r g
the State Bar of Arizona.
   Furthermore, your disclaimer of affilia-
tion with Mr. Woods’ message rings hollow
to me. Even if you disagree with the sub-
stance of the message, your decision to
print it suggests that you believe the mes-
sage itself belongs in the sphere of public
discussion. The legal community may not
have much civility left in it, but we at least
pay lip service to the notion that public dis-
course is about the relative merits of ideas
and not simply about maligning groups
with respect to whose arguments the speak-
er has grown tired.
   I urge you to use better editorial judg-
ment in the future.
                    —Keith Hilzendeger, JD
                      Senior Articles Editor,
                Arizona State Law Journal
       President Emeritus, Gay & Lesbian
 Legal Alliance, Arizona State University
                               College of Law

What I’m not looking for in 2005 are any
more comments about the need for prettier
women and young girls and fast cars. It is
astounding to me that in the 21st Century
women are still discussed as if they were
sidebars to men’s entertainment. Especially
lawyers who allegedly believe in justice
should know better.
                            —Dianne Post

				
DOCUMENT INFO