Center for Constitutional
Litigation Wins Utah Rule Fight
The Center
for Constitutional Litigation (CCL) won a great victory in Utah
against the so-called “tort reform” group Common Good. Representing
the Utah Trial Lawyers
Association, CCL filed a 54-page brief, refuting the allegations
and the points of law advanced by Common Good, which asked the Utah
Supreme Court to limit contingency fees in personal injury cases.
CCL and the Utah Trial Lawyers Association won a unanimous decision!
Common Good filed
a petition for a rule change in the Utah Supreme Court, as it has
in 12 other states. The petition was designed to discourage lawyers
from taking run-of-the-mill cases, cases that involve serious injuries
but limited compensation on behalf of the average person.
Common Good is
now 0 for 4 in its attempts across the nation. Alabama, Arizona, Maryland
and Utah have all rejected Common Good’s petitions. There are
currently 9 petitions pending in other states.
Case History
Last May, Common
Good, a national “tort reform” organization, filed petitions
in 13 states, seeking to prohibit contingency fees as a violation
of the rules of professional responsibility. An exception to the prohibition
existed: If plaintiff’s counsel would engage in one-way discovery
to the defendant prior to filing the complaint, a contingency fee
would be permitted.
Under Common Good’s
theory, the defendant would have an opportunity to evaluate the case
and make an early settlement offer. Such an offer would be more attractive
to defendants because they would be able to make smaller offers and
the plaintiff would still receive about the same amount because the
trial lawyer’s contingency fee would be capped. In other words,
the defendant would save money at the trial lawyer’s expense.
This scheme was
both unworkable and a threat to the client’s access to justice.
Moreover, as the Center for Constitutional Litigation’s (CCL)
brief on behalf of the Utah Trial Lawyers Association states, it was
built on suppositions that could not be sustained and would have adverse
ripple effects throughout the law.
Since the Common
Good petitions were filed, Alabama, Arizona and Maryland have rejected
them without seeking outside comment. On January 28, Utah joined this
group. No other state has acted on the petition (California, Colorado,
Mississippi, New Jersey, New York, Ohio, Oklahoma, Texas, and Virginia).
When the Petition
was filed in the Utah Supreme Court, it was referred to that Court's
Advisory Committee on the Rules of Professional Responsibility. CCL
responded by working with the Utah Trial Lawyers Association in gathering
affidavits from prominent members of the Utah Bar that demonstrated
what a wrongheaded view of contingency fee practice Common Good assumed.
These affidavits
and a marvelously detailed and thoughtful CCL brief made the case
against the Common Good petition. The Committee also heard oral argument
on the issue last November.
This hard work
was rewarded last week, when the Committee issued a letter stating,
“After considering the memoranda, comment letters and oral argument,
it is the unanimous conclusion of the Committee that the Petition
be rejected.” The five-page letter accepted all of the arguments
put forth by the Center.
For
more information, click the links below:
Final
Letter from Utah Rules Committee
CCL’s Petition
Common Good’s Petition
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