A recent pair of California lawsuits has caught the attention of the whole country because –at least at first glance — each case presents an irresistible tale of triumph in a battle between the little guy and the giant.
In the first, Heather Peters, a California Honda owner, opted out of a pending class action suit against the car company based on alleged defects and misleading promotions regarding its Civic Hybrid model. If Ms. Peters had not opted out, she might have become eligible, eventually, to receive a few hundred dollars in cash and some vouchers toward the purchase a new Honda. This was the settlement that had tentatively been approved for each of roughly 200,000 plaintiffs in the class action suit.
Heather, who had paid thousands more for the hybrid versionl of her Civic, , thought this was not enough to compensate her for her losses. Instead, she brought her own small claims suit against the car company. She won the case and was awarded $9,867 in damages. This was just shy of the maximum allowable award in small claims court under California Law — $10,000.
The second recent small claims success story to make national news was smaller but no less impressive. This one, too, was brought in Californiat where Matt Spaccarelli, a man who had purchased an unlimited data plan as part of his cellphone deal with AT&T, found that his service had been “throttled” — slowed to a crawl once his usage reached a certain arbitrary level. He, too, won his case and was awarded $850 by the small claims court. Not exactly a life-changing sum, but enough to buy a bit more phone service and, more importantly, to send a message that unlimited data should mean just that — unlimited.
If only that were the end of the story. Unlike Connecticut, California allows appeals from the judgment of small claims courts. According to the AP, At&T announced its intention to appeal Mr. Spaccarelli’s judgment as soon as the ruling was handed down. Ditto for Honda when Ms. Peters won her case.
So, with no appeal option in Connecticut, could it work more smoothly here? Not exactly. While Connecticut does not allow appeals from small claims judgments, it does provide an option whereby defendants sued in small claims court may file a motion to transfer their case to the regular Superior Court docket before it ever gets heard. Not only does this restore the option for appeal but it also slows down the process considerably and opens up the possibility of trial by jury which makes prosecution more difficult for non-lawyers.
On the other hand, as these two cases demonstrate, pursuing legitimate consumer complaints through the small claims process can catch the attention of the consuming public and of the offending company and thus exert pressure for reform. Sometimes it can even result in a simple victory.
In the Honda case, the plaintiff happened to be a retired lawyer. This undoubtedly came in handy in strategic planning. Ms. Peters was prepared with plenty of admissible evidence to prove her claims regarding gas mileage and had even lined up a witness described as a Honda whistleblower.
Ms Peters helped along the publicity buzz that grew out of the case by publicizing it before the hearing. This drew coverage from a variety of far-reaching media including NPR, Fox News, USA Today, The Los Angeles Times and more. She also launched a web site to encourage other affected Honda Civic owners to follow her lead by opting out of the class action and filing suit on their own. Ms. Peters even re-activated her law license in order to help other plaintiffs prosecute their cases.
How this will turn out for Ms. Peters and for other Honda owners who did not opt out by the February 2012 deadline remains to be seen, but one thing is certain — Ms. Peters managed to deliver a stinging public relations blow to the company that will sap some of the sweetness from the otherwise stunningly favorable settlement they had so far achieved in the class action suit.
The effect of Mr. Spaccarelli’s small claims win on other AT&T subscribers will be less dramatic. This is because, as part of its subscriber contract, AT&T precludes both class action lawsuit and individual suits in courts of general jurisdicion by its customers — a clause previously upheld by the Supreme Court, according to Boston.com.
Still, depending on the amount of publicity the case generates, this could theoretically be a double-edged sword for AT&T since it has, itself, ruled out the opportunity to deal efficiently with large numbers of claims in the context of class action litigation or to play hardball by moving cases out of small claims. From the point of view of the consumer, though, this means that AT&T has less incentive than Honda to fight individual cases commenced in small claims courts — potentially good news for consumers.
For those who opt to pursue their consumer complaints through the small claims system, it is worth noting that rules differ greatly among states. In Connecticut, for example, the maximum recovery in small claims court is $5000 although the cost of filing the suit is only $75 — less than in California.
Moreoer, lawsuits are not the only route to vindication for disgruntled consumers. Each state’s office of the Attorney General has forms and procedures for filing consumer complaints. Consumers need to be aware that by filing an official complaint they are normally consenting to be called upon to act as a witness in any action brought by their state as a result of the complaint.
Many Connecticut residents may remember how , in 2003, New London native, Casey Neistat and his brother Van produced a 3 minute video calling attention to the problem of iPod’s short-lived irreplaceable battery and Apple’s unsatisfactory response to their personal complaints. According to Wikipedia, the video received more than a million hits on the Internet in its first six weeks and soon thereafter caused Apple to announce a new battery replacement program for the device as well as an extended warranty.
This is just one more example of how one or two individuals willing to make waves can lift up millions who find themselves in the same boat.
The mission of the American Bar Association’s Committee on the Delivery of Legal Services is to make courts and the justice system more accessible to everyone. These days, the Committee’s work has become exponentially more difficult because, at the same time more and more individuals lack the income and resources necessary to hire lawyers, courts – including courts in Connecticut – are increasingly underfunded. Last summer, Connecticut’s Chief Administrative Judge, Barbara Quinn, made the scope of the crisis abundantly clear in her report to the legislature. In it, Judge Quinn outlined a myriad of across-the-board cutbacks made necessary by severe cuts in the budget of the judiciary affecting every facet of operations in the State’s courthouses.
This means that judges are increasingly overworked, courtrooms are increasingly understaffed, and the pressure to settle or streamline cases is stronger than ever. Rambling, unfocused hearings in which litigants are unprepared and proper procedural groundwork has not been laid, waste precious court time and cannot be accommodated. While Connecticut, like most states, makes an effort to provide document preparation and other basic services to support to self-represented litigants, those programs are also stretched to the limit. Law libraries in many parts of the state, once a front-line resource for pro se litigants have closed due to budget cuts making matters even worse.
Faced with this reality across the country, the ABA Committee on the Delivery of Legal Services has made recommendations designed to make it easier for lawyers to “unbundle” their services in order to make legal support and assistance more available to individuals who cannot afford to retain a lawyer to provide comprehensive representation in their cases.
In the course of representing a client in any type of litigation, lawyers perform a wide variety of services. These include drafting and serving pleadings, collecting evidence, analysing cases and setting goals, drafting settlement offers, developing trial strategy, writing briefs, and arguing on behalf of clients at hearings and trials.
When a client retains a lawyer to prosecute or defend a lawsuit, the lawyer typically files a document known as an appearance, and thereafter becomes responsible for performing any and all of the functions necessary to bring the case to a conclusion. As part of that process, the lawyer remains available to consult with the client at all steps of the procedure and to provide advice and guidance whenever it is needed. The lawyer also becomes responsible for keeping the client informed about new developments in the case, and of upcoming events.
Because the scope of full representation is so broad and comprehensive, lawyers in most types of cases — with the exception of injury, accident and malpractice cases — charge clients a retainer designed to cover some or all of the anticipated time and expense that will be devoted to the case.
For too many people in this bad economy, the cost of full representation may be out of reach. For those individuals, the choices are limited. They may choose not to participate at all in the litigation or may enter a so-called pro se appearance, signalling to the court that they will be representing themselves. At a minimum, this ensures that they will receive notice of scheduled hearings and other events in their cases.
The unbundling of legal services is designed to provide a middle ground for those individuals. The growth of so-called virtual law offices is part of this trend. Many of these businesses are little more than document preparation services while others offer broader and more skilled support.
Brick and mortar law firms are increasingly willing to offer limited services to clients who must represent themselves in court. The most straightforward unbundled service is document preparation at the commencement of a case. While it may be convenient to pay for such service, the bare-bones documents needed to start a lawsuit are generally available at no cost through each state’s official judicial website or at the office of the appropriate court clerk.
The more difficult part of any case comes after the initial papers have been filed. Unbundled services beyond the opening salvos of a case include case analysis, preparation of litigation checklists, procedural guidance, ghostwriting of legal memoranda and briefs, review of proposed agreements, preparation of subpoenas and document requests, and coaching in preparation for depositions or hearings. None of these services are generally available through court-sponsored pro-se assistance programs since they fall under the category of legal advice. Under existing rules, court personnel including pro-se assistants, clerks, judges, and others are precluded from offering legal advice of any kind. Mere document preparation assistance does not cross that line, but more substantive assistance does.
Unfortunately, most states still do not allow lawyers to file so-called “limited appearances” that would allow them to argue at a hearing on behalf of a client without committing to full ongoing involvement in the case, so court appearances generally cannot be part of the unbundled services lawyers are able to offer.
For those who cannot afford to have a lawyer speak for them in court, it is still worthwhile to seek out experienced counsel who will meet with them to perform some or all of the other services that go into case preparation and development. By unbundling those services, lawyers can perform specific tasks on a flat fee or hourly basis depending on the needs and budget of the client.
In the past, lawyers have been reluctant to offer services related to litigation on a piecemeal basis. This is because no amount of quality document preparation or coaching can guarantee that the client will achieve satisfactory results. For that reason lawyers worry that based on their limited involvement they may be blamed for difficulties or setbacks — whether forseeable or not — that the client might later encounter. Now, though, with the growing support of both the bench and bar oversight bodies, lawyers have become more willing to work with clients in limited capacities as long as those limits are carefully outlined in an appropriate engagement letter.
For anyone otherwise facing a lawsuit alone, where the stakes can be high, unbundled legal services can be a life-changing investment.
According to a recent article in USA today, Connecticut groups have joined a growing movement to revamp alimony statutes that some consider out-dated and punitive toward the payors of alimony.
Advocacy groups, such as New Jersey Alimony Reform, cite anecdotal reports of onerous orders under which individuals have been forced to pay lifetime alimony despite job loss, failing health, or improvements in the financial circumstances of the recipient.
Reform proponents want, above all, to limit the duration and to cap the amounts of alimony by creating formulas tied to the income of the parties and the length of the marriage.
Opponents argue that strict formulas are likely to cause more injustice than they cure especially since judges already consider a range of equitable factors when fashioning alimony orders and need to be able to tailor awards to the needs and circumstances of each family.
In September of 2011, Massachusetts Governor, Deval Patrick, signed into law a new act that provides, among other things, specific term limits for alimony. The Massachusetts law also limits the amount of alimony to no more than 30% to 35% of the difference between the parties’ gross incomes at the time the order is issued. Under the statute alimony can be set below these caps especially if the recipient does not establish sufficient need. The new Massachusetts statute also allows the court to terminate, suspend or modify alimony upon a finding that a recipient is cohabiting with another adult — action that has long been permitted under Connecticut law in any case.
In contrast, rather than capping alimony awards, the Connecticut alimony statute mandates a case-by-case analysis of the issue based on a long list of factors including the length of the marriage or civil union, the causes of the breakdown, the age, health, and occupation of the parties, as well as their respective skills and earning capacities. This allows the court to project how the parties are likely to fare in the future, relative to one another, depending on the amount of alimony ordered.
In Connecticut, the group at the vanguard of the movement for alimony reform maintains a web site that is surprisingly non-specific about the ways in which members consider the existing Connecticut statutes to be defective. Instead, the group invites members to post so-called “horror stories” about their own cases.
To the extent that reform groups suggest that non-modifiable lifetime alimony is the norm, at least in Connecticut, they are misleading potential recruits.
Because Connecticut law generally allows for modification of alimony when the financial circumstances of the parties have changed, an agreement or order to the contrary must specifically preclude modification. While non-modifiable alimony orders are not altogether uncommon, they are most often the product of negotiations between the parties through which the recipient of alimony accepts a lower amount in exchange for a promise that the alimony will continue for a specified period of time.
According to the USA Today article, a bill concerning alimony reform is likely to be presented to the Connecticut General Assembly this year.
Because the issues are not simple, any effort at reform must be carefully considered. New legislation, if it is to bring positive change, should be thoughtfully drafted in a way that allows courts to address the legitimate concerns of both parties. Any reforms designed to protect the interests of one group without also safeguarding the rights of another will not satisfy that requirement, nor will changes that merely bring uniformity into the process without balancing the need for certainty with the overriding goal of treating all parties fairly.
As always, we welcome your comments.
CONNECTICUT’S DEPARTMENT OF CHILDREN AND FAMILIES ANNOUNCES BIG CHANGES IN HOW IT WILL HANDLE REPORTS OF CHILD ABUSE OR NEGLECTPosted: February 13, 2012
Last year, the new Commissioner of the Connecticut Department of Children and Families (DCF), Joette Katz, called an end to surprise home visits in most cases of reported child abuse or neglect. According to the Connecticut Mirror , Commissioner Katz felt that the practice was inconsistent with the principles of the Department. Katz believes that only 10 to 20 percent of reports of abuse are serious enough to warrant a surprise visit. All others are now to be pre-announced by telephone.
Soon, the Department is scheduled to make another big change. Rather than investigating all reports of child abuse or neglect in the way police might investigate crime, the DCF has announced that beginning in March 2012 it will operate on a model known as Differential Response. Under that model, only a small percentage of reported abuse or neglect will be investigated. Instead, cases considered by the department to be less serious will be approached by collaborating with the family. The goal will be to keep children within the family setting by directing the family to appropriate community services. In keeping with the new policy, the agency’s child abuse “hotline” has even been re-named the “care line”.
The Differential Response model has both proponents and critics. Both groups seem to agree that a benefit of using Differential Response is cost savings. Reducing the number of adversarial proceedings related to claims of abuse or neglect and keeping more children in their home settings saves money. Proponents also argue that collaborating with families to support them in efforts to correct behaviors detrimental to the welfare of children, results in better long-term outcomes for the children.
Opponents don’t necessarily disagree with the concept in principle, but caution that the success of the model depends entirely upon how well it is implemented. They argue that, to produce good outcomes for children, social workers need to be able to do adequate screening and follow-up to be sure the desired results of are actually being achieved and maintained. In other words, DCF workers must be empowered to oversee their cases over time once an initial determination of the seriousness of a case has been made.
Connecticut is just one of many states that have adopted the Differential Response model of child protection, but a 2009 report notes that several states, including Florida abandoned the approach after results were either unsatisfactory or inconsistent among districts.
The question for Connecticut residents is whether the Department can provide funding and resources adequate to ensure that the children of families who have not undergone a traditional investigation will be protected and that their situations will be monitored over time. We would like to know what you think.
In Connecticut, many medical malpractice cases are dismissed even before the first witness can be called. This is because of an amendment to Connecticut’s Tort Reform Act of 1986 passed in 1995 by the Connecticut Legislature. The amendment required a detailed opinion letter by a medical expert as a threshold requirement for filing a damage suit for medical malpractice.
An opinion just issued by the Connecticut Supreme Court illustrates how difficult it can be for an injured patient to maneuver the system. Way back in 2006 the Plaintiff, Kristy Wilcox, underwent gallbladder surgery that allegedly left her with permanent damage. As the law requires, she presented an opinion letter from another doctor concluding that her surgeon had not met the standard of care for such surgery in a few ways including failure to protect her biliary structures and failing to properly document the surgery.
Lawyers for the Defendant succeeded in having the case dismissed on the grounds that the opinion letter was not sufficiently detailed.
By 2010, Ms Wilcox won an appeal of the dismissal in the Connecticut Appellate Court, but then learned that the Connecticut Supreme Court had accepted her case for another layer of review. Finally, on February 7th of 2012 the Supreme Court released it’s opinion supporting the Appellate Court’s decision and clearing the way, finally, for Kristy Wilcox to have her day in court.
The question this case, and many others like it, raises is the extent to which the requirement of a detailed opinion letter keeps legitimate cases from reaching the courts and not merely frivolous cases, as the legislature intended. In 2011, a bill was introduced in Connecticut to soften the requirement of the opinion letter but was defeated. It is expected to be considered again in some form during the 2012 session.
Elsewhere, the issue continues to create controversy. Senator Rick Santorum’s political opponants have repeatedly accused him of hypocrisy on the issue because, according to the Washington Post and other sources, back in 1999, Santorum participated as a witness on the issue of pain and suffering in his wife’s medical malpractice lawsuit. In it, she sought damages of $500,000 — twice the cap Santorum had proposed in legeslation some 5 years earlier. The ultimate verdict was for $350,000 the greatest part of which, according to the judge, was to compensate her for pain and suffering.
The charge of hypocracy is fair play against a vocal supporter of tort reform but begs the question of whether supporters really accept the human costs of tort reform or just feel strongly that others should.
The Connecticut Supreme Court recently overturned a lower court ruling that prevented a Connecticut man, Eric Fischer, from seeking money damages against the biological father of a child Fischer had raised believing her to be his own. Back in 2008 , shortly after Fischer and the girl’s mother divorced, a lower court ruled that allowing a suit for damages against the proven biological father would potentially cause emotional trauma to the child, then in her mid-teens. The decision was based on the legal principle of equitable estoppel.
In layman’s terms, and in the context of this case, this means that the court thought it would be unfair for Mr. Fischer to deny –truthfully or not– that he was the father of a child he had treated as his daughter and who had known him as her father.
Now, the State’s high court has ruled that the lawsuit against the biological father may proceed. Through it, Fischer seeks to recover nearly $200,000 in child-rearing costs from the biological father, Richard Zollino –a former business partner of the child’s mother.
The young woman at the heart of the dispute is now 19 years old — legally an adult — and her name was released as part of the Court’s decision. Not surprisingly, the case has received attention from the press so whether or not the family secret had been shared with the young woman, she will now need to grapple with how to deal with a wider public discussion of her parentage and, more importantly, of Mr. Fischer’s priorities.
The dollars involved are substantial and there is certainly enough culpability to spread around among the adults, however that doesn’t make the case a simple one.
Connecticut, like most other states, allows for divorce – or, as we call it in Connecticut, dissolution of marriage– on a number of grounds. These grounds include, among others, adultery, willful desertion, habitual intemperance, intolerable cruelty, and the irretrievable breakdown of the marriage. It is the last of these — irretrievable breakdown of the marriage — that is almost universally used in divorce cases in Connecticut. The legislature added the grounds of irretrievable breakdown in 1973 making Connecticut one of many so-called of no-fault states. Unfortunately, this designation causes some confusion among divorcing couples to this day.
With very few exceptions, lawyers now site no-fault grounds rather than fault grounds in even the most bitterly contested cases. This is because choice of grounds relates to only one of very many issues a court must decide in a divorce. That single issue is whether the divorce, itself ,will be granted. The intent of adding a no-fault language to the list of grounds for divorce was to make it unnecessary for parties to present evidence of wrongdoing in order to end their marriage.
While there were some who saw the advent of no-fault divorce as destructive to the institution of marriage, the common wisdom was, and remains, that, by making it unnecessary to present proof of a spouse’s faults or failures just to end a marriage, couples and families could emerge from the process with minimal damage.
Still, adding a no-fault grounds to the list of fault grounds was never intended to prevent the court from hearing evidence about bad behaviour in deciding other issues in divorce cases. Instead, it only meant that judges no longer had the option to deny a divorce if there had been insufficient proof of fault such as adultery or cruelty. If one spouse testifies that the marriage has broken down irretrievably, it has, whether or not the other spouse agrees. Thus, one issue of the case has been decided.
Aggrieved spouses may still produce evidence of all sorts of wrongdoing in an effort to convince a court to
award or not to award alimony, and to divide the marital property in a way that favors them. On issues of child custody and visitation, the court is obligated to resolve disputes based solely on the best interests of the children. Here, too, if one of the parties has behaved in a way that threatens the well-being of the children — everything from a pattern of disengagement, to neglect or abuse — proof of those behaviors are relevant to the interests of the children and are therefore admissible. For all of these reasons, referring to Connecticut as a no-fault state can be a bit misleading.
So, what is an uncontested divorce? It is one in which fault — whether or not it played a part in the breakdown of the marriage — is never brought to the attention of the court because virtually all issues, including custody, support, alimony, the division of property, and more, have been resolved by the parties, themselves. In those cases, the court is simply provided with an agreement which will be approved provided it is not manifestly unfair or detrimental to the interests of the children.
Even in truly uncontested divorces, the court has an obligation to review the agreement so all of the documentation that is required in contested cases, is also required in uncontested cases. This documentation includes properly completed financial affidavits. In families with children, the parties must also submit affidavits in which they swear that no other court is considering issues affecting the children.
Sometimes, cases are technically uncontested because one party is not participating. In these cases, the party seeking the divorce must also follow strict rules which assure that the absent party has been properly notified of the action and has been given a fair opportunity to participate.
Couples planning an uncontested divorce, and even individuals who expect that their absent spouse will not oppose a divorce, should still take great care to be sure that their agreement or, in the case of unopposed divorces, their proposal, is truly fair and reasonable and that it covers all of the issues that should be addressed. Although the court does have an obligation to review the agreement for manifest unfairness, it is extremely unusual for judges to interfere in any way with a completed agreement. Moreover, judges are not permitted to provide legal advice to the parties who appear before them. Also, it can be nearly impossible to correct certain portion of unfair agreements once they have been made part of a decree of dissolution. Therefore, even those preparing for an uncontested divorce will benefit for the advice of experience counsel.