The Bill Kumpe Law Firm

A so-called “tort reform” package has passed in the Oklahoma House and is on its way to the Senate where backers believe they have the votes to pass it.

 

Conservative talk radio has championed tort reform as a panacea for economic progress. Actually, the parts of the measure that I have examined look a lot more like a recipe for higher profits by insurance companies and other wealthy parties than a serious attempt to address inequities in the court system. A lot of what is proposed in the measure is technical and would not be of interest to the average consumer UNTIL THEY ARE FACED WITH THE CONSEQUENCES. And even then, it is unlikely that they would be able to completely understand why they had just been hosed. It’s a lot easier to blame your lawyer when things go sour than learn the law.

 

Most people seem to think that the court system is required provide them with a way to redress their civil claims. While the court is constitutionally required to provide an adequate forum for redress it is not required to provide the means. Consequently, if you are the victim of negligence in an automobile accident or malpractice by a medical provider, there is no statutory entitlement guaranteeing you the means to bring the case to court no matter how valid your claim. You have to pay your own way and frequently, the plaintiff’s expenses in a lawsuit run into six figures.

It is an unfortunate fact of life that, absent mitigating political considerations, results in the courtroom can usually be predicted by the available resources of the litigants. If the sides are badly mismatched, one side can usually outspend and consequently outlast the other resulting in a victory.

 

Think of it in terms of a poker game. The harder the legislature makes it to bring a case, the higher the buy in to the game. The more restrictive the legislature makes plaintiff’s recovery the lower the overall value of the pot. The result is that most hands will be won when the side with deeper pockets (almost always the insurance company or corporation) raises the stakes until the other side has to fold.

 

A classic example of this strategy is contained in the legislation before the Oklahoma Senate right now. One provision of the bill requires that plaintiff’s hire an expert who will provide an affidavit that not only is the injury complained of by the plaintiff valid but that it was likely caused by the negligence of the defendant. On the surface this sounds pretty reasonable until you realize that this all happens BEFORE the plaintiff has an opportunity to file discovery. And, it shifts the responsibility for these important questions of fact that a jury would now decide if the case went to trial into a pre-trial prerequisite to be decided by a set of hired gun experts and the judge. It also requires someone, either the plaintiff or his attorney to shell out a lot of money early in the case before they have had an opportunity to learn the facts through discovery.

 

The net result of this is that fewer attorneys will pursue plaintiff’s actions and it will much more difficult for an average person to bring their claim to court. The poor will suffer the most. A large part of this legislation will be found unconstitutional and have to be repealed. Almost everyone involved knows this but they are proceeding anyway.

 

Your right to bring a civil action in court depends upon the ability of an attorney to recover the costs of litigation and earn a reasonable living. Without legal representation your constitutional rights in the civil courts are meaningless. That is what this is really all about.  If the version of tort reform currently being presented is enacted, the civil courts will become exclusively the province of large commercial interests and the wealthy and the poor and the middle class will be denied justice because they cannot afford the price of admission to the courtroom.

 

The Oklahoma Supreme Court recently held that Oklahoma at will employees who engage in otherwise legal litigation or related legal activites which offend the employer may be fired without vioating Oklahoma public policy.

 

A bank employee became involved in a lawsuit against the City of Grove, Oklahoma. The City of Grove was a client of the Bank. The bank pressured the employee to drop all claims against the City. The employee refused and was fired by the Bank. The employee sued the bank for wrongful discharge, alleging that his civil rights were violated by his dismissal.

 

Under Oklahoma law, the dismissal of an at will employee will not support a wrongful discharge claim unless there is a clear violation of public policy. The Oklahoma Supreme Court held that dismissal of the employee for exercising of his uncontested right to litigate against the City and to seek certain information through the Oklahoma Open Records Act did not violate public policy. The court cited its previous decision which held that public policy was not violated when an at will employee was fired for reporting embezzlement by his employer and cooperating with the police in the investigation.

 

The net effect is that Oklahoma at will employees can be fired without fear of a wrongful discharge claim even though they are legally exercising their constitutional rights if the employer finds their actions unacceptable. This case furthers Oklahoma’s line of cases which broadly construes the Employment-At-Will Doctrine which holds that an at will employee can be fired for good cause, bad cause, no cause or even an immoral cause without legal consequences and very narrowly construes the public policy exception to the doctrine to include only specifically named exceptions found directly in state or federal statutory language.

 

This case has profound implications for employees involved in controversial political and social issues after working hours. It would appear from this ruling that an Oklahoma employer can legally fire an employee for engaging in legal, political or social activity which the employer finds offensive or believes will negatively impact his business.

The case is: Shero v. Grand Savings Bank, 2007 OK 24

 

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The Oklahoma Supreme recently refused to overturn the trial court’s ruling that a special education teacher should not be fired for slapping an out of control and unruly student. The court announced its continued support of the doctrine of in loco parentis (the teacher stands for the parent). In key testimony, the grandmother the slapped child told the court that she had had occasion to slap the child. The family of the slapped child supported the teacher. The dismissal action was brought by the school district on the complaint of other school employees who witnessed the incident.

 

Justice Steven W. Taylor, Dist. 2, issued a strong dissent arguing that the intent to harm the child was not relevant and that the school district should have the final say in whether or not to fire a career teacher rather than the courts.

The case is: Hagen v. Ind. School Dist. 2007 OK 19.

 

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This is allegedly a true story.  A lawyer defending a man accused of burglary told the court: "My client merely inserted his arm into the window and removed a few trifling articles. His arm is not himself, and I fail to see how you can punish the whole individual for an offense committed by his limb." "Well put," the judge replied. "Using your logic, I sentence the defendant's arm to one year's imprisonment. He can accompany it or not, as he chooses." The defendant smiled. With his lawyer's assistance he detached his artificial limb, laid it on the bench, and walked out.