by Goldy, 12/31/2010, 9:11 AM

Of course the Seattle Times editorial board enthusiastically supports Attorney General Rob McKenna’s call for liability reform. He’s Rob Fucking McKenna, the WA GOP’s Kwisatz Haderach. Hell, if McKenna had come out in favor of strangling kittens, the Times would’ve surely urged broad bipartisan support:

“Kitten lovers will not like these ideas,” the Times editors might write. “Democratic lawmakers are sure to be lobbied against them. McKenna is a two-term Republican appealing to a Democratic-controlled state Legislature for reform.”

Oh please.

Consider this: In 2009, the state paid out more than $50 million in legal judgments and settlements. According to McKenna, that is between four times and 12 times as much as comparably sized states, including Massachusetts, Arizona, Tennessee and Indiana. The tally for this biennium may approach $125 million.

Now, I’m not totally dismissing out of hand the notion of some sort of liability reform, and I’m willing to hear the arguments pro and con, but consider this: perhaps it’s not just our liability statutes that account for the rising cost of legal judgments against the state, and the dramatically lower costs elsewhere. Perhaps, just maybe, Massachusetts, Arizona, Tennessee and Indiana pay out less in legal settlements because they have better lawyers?

I mean, it’s not the law that changed back when McKenna first won election in 2004, just the management of his office. So shouldn’t he accept at least a teensy bit of responsibility for losing all those expensive cases, rather than, as the Times attempts to do, pinning all blame on the trial lawyers who keep kicking the AG’s ass (not to mention Democratic legislators)? Isn’t it reasonable to at least consider the possibility that the rise in the cost of judgments against the state has something to do with a decline in the quality of our legal representation?

Republicans are fond of saying that government should be run more like a business. Well, if I were the CEO of a large corporation, and my legal costs suddenly spiked concurrent to the tenure of my Chief Legal Counsel, I’d probably look into hiring myself a new Chief Legal Counsel… you know, one who’s not such a sucky lawyer.

34 Responses to “Or maybe Rob McKenna is just a crappy lawyer?”

1. Rujax! Reminding Puddy That a Black Person Voting Republican is Like a Chicken Voting for Col. Sanders Since 2004 spews:

You just made the rethuglicant case for privitizing the Attorney General’s Office.

Bullivant and Lane Powell have better INTERNS than McKenna.

2. Michael spews:

DSHS lost a few cases that they richly deserved to lose. ;-)

3. Doc Daneeka spews:

“Consider this: In 2009, the state paid out more than $50 million in legal judgments and settlements.”

It is far from clear where this mythoid data point comes from or even if it has any basis in fact. Sad that such verbal gruel is served up so glibly by “journalists” without even bothering to check.

It may be possible that Washington State was a party to initial judgments totaling this nice round number. But it is absolutely false that the taxpayers have paid out this much. In many of these cases the state was only individually liable for a portion of the total judgment. And in most cases the final judgments have been or will be reduced upon appeal.

It should come as no surprise that the Times ed. board would hate on the torts div attorneys like this. After all, they are public employees. But it won’t play well for Robby as he makes his run for Governor. It makes him a back stabbing liar, for starters.

4. tort lawyer spews:

If juries impose damages after hearing evidence, we should believe they had good reason to — the state broke the law and injured someone. So if you hear there’s $50 million in judgment and settlements the first question should be “why is the state breaking the law so much and wrongfully hurting people, and can we change it?”

More knowledge and information would help. Start with a list of all payments and judgments. Go on to a list showing how many AG hours are spent defending each agency in each case, that’s another cost that bears scrutiny. Then the AG could agree to put an entire trial transcript and evidence on line for minimal cost. The AG wants us to get bothered by the fact that in one case a jury held the state responsible for a misplaced on ramp light at a highwway leading to a big judgment against the state; in fairness, before we jump to a conclusion that the result is unfair to the state of washington, why not let us see what the jury saw? It’s all a public trial.

Finally, if we are going to reform tort law for the state how about ensuring the state does not lie, cheat and steal in litigation itself? I had one case where a state agency sued my client for “causing embarassment to the agency, by talking to the Seattle times.” Clearly a first amendment violation intendewd to terrorize my client into submission. Eventually they dropped it. But I had to tell my client “oh don’t be scared, that’s an illegal claim, they won’t win.” He had to tell his wife and kids the government was suing him for millions of dollars for talking to the press. This kind of stuff goes on without any sanction being imposed on the frivolous claims and defenses and hardball tactics employed by the lawyers for the government.
The jury system is one place where we do actually have government by the people. I’d suggest more information and facts and careful thought before making any changes.

Maybe the State of Washington deserved to pay $100 million in judgments and settlements…and thru scurrilous tactics only paid $50 million? Unless you go deeper than a sound bite analysis, you’ll never know.

What is clear is that the state agency and the state officers involved in the wrongdoing rarely, if ever, personally have to pay a judgment, or personally have to pay their state paid lawyers; and the agency itself doesn’t account for the legal costs it runs up; so if you use classic economic incentive type analysis, it’s clear the State has little incentive to not do wrong under the current system. Maybe that’s why the state keeps doing wrong things and injuring people and getting hit with lawsuits. Crying for tort reform usually is simply an attempt to blame the victims. Why would we give special rights to the State that other defendants do not have?

5. Michael spews:

@4

if you hear there’s $50 million in judgment and settlements the first question should be “why is the state breaking the law so much and wrongfully hurting people, and can we change it?”

Yep. That goes double for DSHS. Had they done the right thing(s) in the first place, the lawsuits wouldn’t have happened.

6. Glenno spews:

Pyrite…

Sounds like you getting a little nervous and starting to attack the next Governor of Washington State a little earlier aren’t you?

Happy New Year!

7. Bluecollar Libertarian spews:

#4 Bullseye! Fix the damn problem that brought about the law suit.

8. Roger Rabbit spews:

“a decline in the quality of our legal representation?”

Because lawsuits against the state arise from agency actions at the worker level, it’s also reasonable to assume that massive layoffs, pay freezes, higher workloads, and plunging employee morale may have something to do with agency errors and oversights. You get what you pay for, and because Republicans and anti-tax voters don’t want to pay for quality government, they’re getting lousy government.

9. Roger Rabbit spews:

“The jury system is one place where we do actually have government by the people.”

That’s why Republicans don’t like it.

10. YLB spews:

coprolite @ 6

I used to think Bobby Mac was a shoo-in myself.

Not so sure any more.

11. Liberal Scientist spews:

The first thing I though when I heard this on KUOW yesterday was to ask whether those other states are paying out too little – perhaps they’re less responsive to their citizens, perhaps it is a good thing that is happening in Washington.

Simply that the numbers are lower elsewhere and relatively higher here – that really tells us nothing without context.

12. Roger Rabbit spews:

Well let’s see. There are about 200 state agencies (very rough figure) and 100,000 state employees (another very rough figure), so $50 million works out to $250,000 per agency or $500 per employee. That’s less than I pay for car insurance on one car.

The $50 million number isn’t very meaningful as a raw, stand-alone number. Given the type of high-legal-exposure work that most state agencies do, these figures probably are reasonable when compared with, say, private businesses doing high-legal-exposure work.

The state self-insures; what would its annual insurance premiums be, if the state purchased sufficient liability insurance to cover the activities of 100,000 employees? I doubt the state could get blanket coverage for its activities for only $50 million a year.

13. Roger Rabbit spews:

@6 “the next Governor of Washington State”

That’s what people like you said about Rossi. Twice.

Looooooooossssserrrrrrrr …

14. your wife's pimp spews:

@13

and when the queen got elected twice, we all turned out to be the loooooossssssserrrrssss.

15. Jay spews:

re: #6 Glenno

The Attorney General has been all over the place giving speeches and writing op-eds. Hell he even wrote in my Back Country Horsemen of Washington mag. He is campaigning almost full time. Not to mention his idiot lawsuit against the Health Care Bill. If your running you deserve to get a few hits

16. Roger Rabbit spews:

@14 That’s true, but the alternative was worse.

17. Roger Rabbit spews:

At least under Gregoire, some poor kids got health care for a couple years, and state workers got their first COLA in 6 years.

18. Roger Rabbit spews:

Also, it is not Gregoire who’s responsible for the destruction of public services in our state. Thanks for that belongs to the anti-tax fanatics who vote against every revenue stop-loss and by doing so pander to the corporate interests who are screwing them.

19. proud leftist spews:

I am currently litigating a civil rights claim against the state that the AG’s office has mishandled from the outset. The defense tactics are likely to drive up what the state will eventually have to pay out. There has been grossly excessive expenditures of time and litigation costs that serve no useful purpose. The case should have settled early for a number of reasons; I am at a loss to understand the objectives motivating the defense strategy. I’ve got to assume McKenna has issued some directive, as I’ve never seen the state litigate in such a pointless fashion.

20. 2cents spews:

The Times is awfully vague in their editorial. They have been on the warpath against closed court settlements, yet all they provide is McKenna’s press release $50 million dollar number. How many cases was that? Is the state appealling any of them? What are the numbers behind the $125 million in the current biennium? I understand they are appealling the $30 million dollar verdict against WSDOT. However the Times couldn’t even get the highway correct in their original story. Finally what is the trend on lawsuits? Is Goldy right, have lawsuits spiked on McKenna’s watch?

The Times needs to hire reporters instead of having Blethen’s grandkids transcribe spoon fed press releases.

21. Derek Young spews:

Goldy,

On this one you’re wrong (feel free to pummel the Times and McKenna for various other sins).

The issue is joint and several liability. Basically it joins defendants together with the theory being that they’ll apportion their financial liability amongst themselves. The problem with it is that one you have one defendent with no assets and a joined government, state or local, the government ends up picking up the whole tab.

Attorneys know this and look for ways to join the government. An example I often give is a drunk driver going through an intersection and killing or maiming another person. The stop sign is partially obscured by a tree that’s overgrown. The judge finds the city 1% responsible and the drunk driver 99% responsible.

Even that 1% can end up making the city pay 100% of the award if the driver has no assets.

Local government has begged for reforming this for years. Most other states have taken some steps to fix it. I’ve testified a number of times myself. Nobody is arguing that government shouldn’t pay when its responsible for some wrong… but it shouldn’t pay for everyone else’s wrongs as well.

Anyway, McKenna may in fact be a shitty attorney, but that’s really a separate issue in this case.

22. proud leftist spews:

21
But, as you know, if the plaintiff is even 1% at fault, there is no joint and several liability. Absent any fault on the plaintiff’s fault, don’t you feel it is more fair for the plaintiff to be fully compensated for his or her injuries even if that means one partly at-fault defendant pays disproportionately?

23. tort lawyer spews:

Comments for dear proud leftist:

“Ihat the AG’s office has mishandled from the outset.” Yes, because there’s no consequence for the numberous frivolous claims and defenses asserted by DEFENSE lawyers.

“The defense tactics are likely to drive up what the state will eventually have to pay out.” But they don’t care, because it’s taxpayer money. In fact, McKenna is GLAD to pay our more it might help him make a case for tort reform.

“There has been grossly excessive expenditures of time and litigation costs that serve no useful purpose.”

There is not one identifiable public employee at the defendant agency or the AG office who suffers any consequence from this excesive spending of time and money.

“The case should have settled early for a number of reasons;” but didn’t because typically the State drags it out. After all, it’s our money, not theirs, and no one really pays except the general fund, which no one is watching.

“I am at a loss to understand the objectives motivating the defense strategy.” They get promoted for dragging it out and running up costs. The public officers they are defending have no incentie to settle and get free lawyers. It is all very rational, economically.

” I’ve got to assume McKenna has issued some directive, as I’ve never seen the state litigate in such a pointless fashion.” NO directive is needed. There is no accountability because the defendants you’ve named are playing with monopoly money — the general fund.

24. Derek Young spews:

21
But, as you know, if the plaintiff is even 1% at fault, there is no joint and several liability. Absent any fault on the plaintiff’s fault, don’t you feel it is more fair for the plaintiff to be fully compensated for his or her injuries even if that means one partly at-fault defendant pays disproportionately?

I wasn’t referring to the plaintiff being at fault, but the government sharing some small percentage of fault and bearing the whole burden.

And, no, it’s not fair.

25. tort lawyer spews:

@21

please provide one real world example of the 1% scenario you cite. I suspect it’s like the ticking time bomb scenario used to justify torture…just doesn’t happen in the real world. Seriously, what jury is going to put down 1 % in the real world? They all google the case and the law and know what that means.

Then if you can provide one example, provide a few more.

Thanks.

BTW what I mean is not some internet link to TortReformToday, published by the Council for Insurance Companies and Freedom, what I mean is You know, like Smith v. State of Washington, judgment in thurston county court no. blah blah blah dated blah blah blah.

you know, real facts.

Got data?

26. proud leftist spews:

25
Good query to 21. We hear that 1% nonsense all the time, but I don’t believe that even once in this state’s history has the state been tagged with 1% liability in a multiple tortfeasor situation and had to pay the whole judgment, not even close.

27. Faceless Bureaucrat spews:

I hope the Democrats realize that they will need to build a significant propaganda machine to counteract McKenna. Is this happening?

One potential party game: Who would McKenna appoint to his cabinet? Can you see Dino Rossi as, say, director of the Dept. of Commerce?

28. All Facts Support My Positions spews:

Just look at how many votes McKenna will get by telling the average inbred Republican wet brain that he will cut their taxes…..

29. PaintTruckChaser spews:

“But, as you know, if the plaintiff is even 1% at fault, there is no joint and several liability.”

In the instant case, the injured motorist had equipped his hatchback with a large subwoofer speaker driven by a seventy five pound steel core magnet. It was not secured to the body or frame of the vehicle in any way. When the driver of the paint truck, too preoccupied with eating his sandwich, accelerated into the rear of the stopped hatchback, the seventy five pound magnet was accelerated forward (Newton’s second law) and into the stopped driver’s spine, resulting in the paralyzing injury.

The trial judge ruled that the plaintiff was not obligated to secure heavy objects in his vehicle. And the jury, upon seeing the severity of the plaintiff’s injury, basically nullified the law by applying an entirely novel design standard in order to assign some liability to the owner of the roadway (us taxpayers).

I can’t help but feel some degree of “there but for the grace of God” in this case. I own an SUV. I’ve driven around in it with heavy loose objects. And I’m sure that played some role in the Judge’s ruling (I don’t know what kind of car the judge drives). But the simple fact is that had the speaker box been reasonably secured (or simply absent from the vehicle that day) plaintiff’s injuries would not have occurred. Had the driver of the paint truck been paying attention, had the state equipped the ramp with spike strips, a drop guard, and a uniformed attendant waving flags, etc., etc. Point is liability is liability. The plaintiff had some duty to safely secure a giant steel weight from flying around inside the occupant compartment of his vehicle. The injury might just as well have occurred to a passenger during a panic stop maneuver or a head-on into a blunt barrier. The insurance company for the paint truck driver will exhaust the policy limits (probably $1 mil) and walk away. Barring a successful appeal, the taxpayers will pay the balance of the judgment.

This plaintiff needs this money. He is a young man with a hopefully long life ahead of him. That life has been unalterably changed and diminished by his injuries. He will need constant care and assistance forever. I’m just not sure the taxpayers should be providing it.

The taxpayers built a roadway. We did it according to nationally recognized design standards. No reasonable modification to warnings and signals could have prevented the paint truck driver from ignoring them. And the plaintiff bears some responsibility for the precise mechanism of his own injuries.

However we write the law, sometimes there’s no accounting for judges.

I’d give the state at least a fifty fifty probability of obtaining relief at appeal.

30. tort lawyer spews:

Dear paint truck chaser: you make a compelling case that our current system works fairly well, and no reforms are needed. LEt’s review, shall we?

1.”I’d give the state at least a fifty fifty probability of obtaining relief at appeal.”
Your main issue iw with the trial judge’s ruling; the appeals process will likely cure it if in fact it was wrong as you argue.
You give it 50%? Okay, 50%.

2. “In the instant case, the injured motorist had equipped his hatchback with a large subwoofer speaker driven by a seventy five pound steel core magnet. It was not secured to the body or frame of the vehicle in any way. When the driver of the paint truck, too preoccupied with eating his sandwich, accelerated into the rear of the stopped hatchback, the seventy five pound magnet was accelerated forward (Newton’s second law) and into the stopped driver’s spine, resulting in the paralyzing injury.”
This is your view of facts found by a jury in reality. Assuming you’re right, it could have been a 70 pound bag of dog food sitting in the vehicle or a 70 pound person or a 200 pound person or a set of tools weighing 100 pounds. people drive around all the time with stuff in a car that’s not “secured.”

“The trial judge ruled that the plaintiff was not obligated to secure heavy objects in his vehicle.” For good reason, see above.

“And the jury, upon seeing the severity of the plaintiff’s injury, basically nullified the law by applying an entirely novel design standard in order to assign some liability to the owner of the roadway (us taxpayers).” Um, here you are stwisting the facts and not even telling the reader the facts about the highway design. You might know them from the media reports. I suggest you at least tell us the facts before inciting us to slam to jury. Fair is fair, right? What I read was the stagger light was in shadow and it wasn’t that visible and presumably both sides spent money on design experts and 10 out of 12 jurors decided that the state was negligent. Today jurors all google the law and know what’s up so they stuck the state knowingly. Why is this wrong? The tort system works to assure safety and reduce costs of injury in the long run by imposing these externalities on the paersons responsible. A GOOD AG in this case would immediately do risk management and make WSDOT survery every single on ramp for the same problem and AVOID HORRIBLE ACCIDENTS LIKE THIS ONE BEFORE THEY HAPPEN. Betcha that ain’t happen, instead the AG is grabbing headlines.

BTW if you don’t like juries, what is your reform? Judges? The Italian system? What?

3. “I can’t help but feel some degree of “there but for the grace of God” in this case.”

Yes. Empathy. Common sense. Experience. All reasons why juries are pretty good at this whole justice thing.

4. ” I own an SUV. I’ve driven around in it with heavy loose objects. And I’m sure that played some role in the Judge’s ruling (I don’t know what kind of car the judge drives). But the simple fact is that had the speaker box been reasonably secured (or simply absent from the vehicle that day) plaintiff’s injuries would not have occurred. Had the driver of the paint truck been paying attention, had the state equipped the ramp with spike strips, a drop guard, and a uniformed attendant waving flags, etc., etc. ” OR HAD THE STATE OF WASHINGTON NOT PUT IT IN SHADOW WHERE IT WASN’T SEEN THE INJURY WOULDN’T HAVE AHPEPNED EITHER. “Point is liability is liability.” This is an argument??
” The plaintiff had some duty to safely secure a giant steel weight from flying around inside the occupant compartment of his vehicle” — yes you concluded this legal issue differently than this judge did. But you don’t answer: we all use SUV’s to haul crap in. We use cars to haul crap in. Sometimes we’re hauling your mother in law and sometimes she has a fishtank in her lap and sometimes there is glass flying and sometimes it’s a toolbos full of 5 pound hammers and files that can pierce your eyeballs in a car wreck. We don’t have laws requiring all that to be secure. Therefore it’s foreseeabl people have that stuff in the car. Therefore this judge could be right. And if you disagree, go to the leg, get a secure your load inside your vehicle law passed.

“. The injury might just as well have occurred to a passenger during a panic stop maneuver or a head-on into a blunt barrier.” Your argument is that because some injuries would not result in a finding of liability based on negligence,…then….none should? um, 500 years of tort law is at variance….

“The insurance company for the paint truck driver will exhaust the policy limits (probably $1 mil)” Likely it’s more than that. After the insurance the paint truck company is liable perhaps bankrupting it. Other truck companies will see that and int he future they will make damn sure their drivers don’t eat a sandwich while driving. This is how the whole world is made safer thru tort law.

“and walk away. Barring a successful appeal, the taxpayers will pay the balance of the judgment.” And if the AG had sense, he and the public would go review all highway on rampt designs and make the relatively modest corrections that you ignore here, and this will likely result in this kind of injury never happening again. Oh wait, no, instead of making the world safer the AG and his supporters on blogs are using this for political hay, never mind.

This plaintiff needs this money. He is a young man with a hopefully long life ahead of him. That life has been unalterably changed and diminished by his injuries. He will need constant care and assistance forever. I’m just not sure the taxpayers should be providing it.

The taxpayers built a roadway. We did it according to nationally recognized design standards. No reasonable modification to warnings and signals could have prevented the paint truck driver from ignoring them. And the plaintiff bears some responsibility for the precise mechanism of his own injuries.

However we write the law, sometimes there’s no accounting for judges.

31. PaintTruckChaser spews:

“Dear paint truck chaser: you make a compelling case that our current system works fairly well, and no reforms are needed.”

I would agree. Which is to say, as usual, Rob McKenna is wrong on the law.

As to your point by point re: the instant case, I do not agree. I’m extremely sympathetic to the plaintiff. But that alone does not convince me that we taxpayers owe a duty to make the roadways safe from criminally inattentive drivers. I won’t bore you with the details. There are many. Including many thousands of hours of engineering and reconstruction analysis. But the reason for the plaintiff’s injuries lie with the driver of the paint truck. This ramp was and is built like millions of other ramps all over the U.S. Shadows happen. Which is the reason why this ramp and others like it are equipped with multiple redundant signals and warnings. Even with the shadow, the driver of the paint truck had a sufficient sight distance at the point where the primary signal emerged into the sunlight from his view point. Several hundred feet. The paint truck driver asserts that he observed no warnings or signals whatsoever at any time. None of the five roadside warning signs that he passed. None of the surface paint markings. Nothing. (Would capitalizing that make a difference?) And, of course, not the multiple primary signals. This is because the driver of the paint truck was accelerating continuously while moving onto and through the ramp, while busying himself with unwrapping a sandwich and opening a beverage. Only a spike strip would have prevented the paint truck driver from accelerating into the rear of the plaintiff’s vehicle. The taxpayers do not have a duty to equip ramps with spike strips and devise a safe method of deploying them. That would not be “modest”. That would be absurd.

“Your argument is that because some injuries would not result in a finding of liability based on negligence,…then….none should?”

You are incorrect. My argument is that because “some injuries” would result in a finding of some liability on the part of the plaintiff in otherwise identical circumstances, then the plaintiff bears some liability here. If the plaintiff would bear some degree of liability if his unsecured seventy pound steel magnet severed a passenger’s spine, then the plaintiff bears a similar degree of liability here. The only difference lies in who we are feeling sympathy towards.

32. Broadway Joe spews:

Gotta give it up for the Dune reference. Didn’t know you were down with Port Townsend’s greatest contribution to the world….

That said, not Muad’dib or even the God Emperor Himself could get Robby Mac into the Governor’s Mansion.

33. rhp6033 spews:

Getting back to the basics. The current AG and Republican gubenatorial candidate wants artificial limits imposed on the state paying the consequences of the negligence of it’s employees.

At the same time, his own Republican Party insists on reducing the revenue available to the state which would help prevent it from committing negligent acts. For example, a parole officer handling 150 cases at any given time is more likely to overlook something in any one of those cases than a caseworker working only 50 cases at a time.

The consequences, of course, is to shift the burden of the state’s negligence from the taxpayer to the victim. After all, it’s their fault they got injured, wasn’t it?

But this isn’t any different from Republican pro-business theory, anyway. In their mind businesses should be allowed to pollute and the public have to bear the cost of cleanup, lousy water and air, and health affects of a toxic environment, all so they can have higher profits. When applied to governmental liability, it means that the rich get to pay lower tax rates, increasing the risk of harm to the general public, and making the random victims bear most of the burden of that strategy.

34. Jan Smith spews:

Of course McKenna is about to request liability reforms as well as Representative Kagi because they illegally destroy people’s families and they are not following the federal laws. Sixty percent of removed children are not in imminent danger according to the family ombudsman but because they spend millions marketing for surrogate foster and adopts, the public is duped. The 50 million is a drop in the bucket compared to what is coming down the pike and he knows it.
ag-robmckenna.blogspot.com
http://www.xtranormal.com/watch/7930131/
http://www.xtranormal.com/watch/8051773/
http://www.xtranormal.com/watch/7934499/