Utah Defense Lawyers AssociationWELCOME TO THE UTAH DEFENSE LAWYERS ASSOCIATION: 

SERVING THE INTERESTS OF LAWYERS PRINCIPALLY INVOLVED IN THE DEFENSE OF CIVIL LITIGATION. 

Blog

UDLA members may submit a blog posting by sending an email to the Executive Director at udlaxd@gmail.com

Recent Developments

A prominent plaintiff's law firm recently referred to a newer law review article on the billed vs. paid issue.  We will likely see more references to the article which is very biased toward the plaintiff's position.  We thought some of you may be interested in reading it.

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  • 30 Jul 2020 10:14 AM | Michelle Barrus (Administrator)

    The Utah Defense Lawyers Association (UDLA) is a Utah non-profit organization serving the interests of Utah lawyers principally involved in the defense of civil litigation. UDLA serves its members by promoting professional development through the exchange of information, ideas, and litigation techniques to enhance the knowledge and improve the skills of Utah civil defense lawyers.

    DRI is the leading international membership organization of lawyers who represent business in civil litigation. DRI is committed to enhancing the skills, effectiveness, and professionalism of defense lawyers, anticipating and addressing issues germane to defense lawyers and the civil justice system, promoting appreciation of the role of the defense lawyer, improving the civil justice system, and preserving the civil jury.

    UDLA and DRI agree with the Utah Supreme Court that access to justice is an area of national concern. But for several reasons, both UDLA and DRI are concerned the proposed changes to Rule 5.4 will erode the quality of legal representation available to Utah legal consumers while failing to meaningfully address individuals’ abilities to afford legal service.

    First, there is little evidence that nonlawyer law firm ownership, fee sharing, and entity regulation licensing reforms, if implemented, would increase access to justice. In jurisdictions where nonlawyer ownership of law firms exists, it has not accomplished similar policy goals. Similarly, it is not clear, regardless of the regulatory sandbox framework proposed, that for-profit legal technology services would in any way assist the disadvantaged with legal representation.

    In the U.K. and Australia (or in the District of Columbia which has had a relaxed version of Rule 5.4 for many years), where reforms similar to those under consideration here have been enacted, there is no evidence the changes have had any impact whatsoever on the access to justice crisis. Instead, evidence shows the typical alternative business structure in the U.K. competes with the same types of law firms that had been servicing the fee-paying public long before the U.K. recognized nonlawyer ownership, as opposed to providing services to disadvantaged clients. Notably, a recent study concluded that the use of alternative business structures in the U.K. and Australia had been accompanied by no measurable improvement of those countries’ access to justice needs. Robinson, Nick, When Lawyers Don’t Get All the Profits: Non-Lawyer Ownership.

    On the contrary, the changes might lead to a decrease in access to justice. Big business and tech could tailor legal services towards individuals and entities most likely to minimize investment risk while avoiding expenses incurred through traditional legal providers. That shift could in turn result in a substantial decrease in pro bono work. Currently, many profitable firms subsidize their attorneys’ pro bono work by permitting or even requiring attorneys to meet their billable requirements through pro bono representation of disadvantaged clients. But under the proposed changes, non-lawyer owned entities would have little incentive to do this given they would not be subject to the same ethical or professional standards to which members of the Utah bar are held. Indeed, the proposed changes do not establish any duties on non-lawyers, let alone duties to provide disadvantaged groups with access to legal services.

    UDLA and DRI are also concerned that these changes may exacerbate the decline of access to legal services for rural Utahns. Unlike lawyers along the Wasatch Front, many “country lawyers” cannot afford to specialize in only one type of law and instead offer services across the legal spectrum, from criminal defense, to preparing wills and trusts, to defending their clients in a range of civil disputes. The proposed changes may alter this balance by shifting certain types of work (for example, estate planning) away from the rural lawyers and into the hands of corporations in far-off cities. In doing so, country lawyers may find they can no longer afford to practice law in rural areas, leaving entire areas of Utah without access to any local legal practitioner (even today, there are counties in Utah with few, if any, lawyers living in their boundaries). While the individual who has procured discounted estate planning might be said to have benefited from such a situation, the same individual might not find the tradeoff worth it next time they find themselves in need of representation not easily provided by a smartphone app.

    Second, UDLA and DRI are concerned the proposed changes would erode the ethical protections the Utah Rules of Professional Conduct currently ensure. Although the committee charged with addressing the rule changes insists a Utah lawyer’s ethical obligations would theoretically remain unchanged should the new rules be adopted, this would be practically impossible in practice. Under the current system, legal services providers are owned and controlled by the lawyers representing the client. Thus, while outside entities (like insurance companies) may pay a lawyer’s legal fees or litigation expenses, the case is always ultimately controlled by the lawyer and client, to whom the lawyers owe an ethical, non-delegable duty.

    But a lawyer may not be practically capable of performing this duty should ultimate control be delegated to a non-lawyer. When the outcome of a case is driven by profit as opposed to client benefit, business interests will often win out even if the client is disadvantaged as a result. One possible example would be a lawyer who is incentivized to seek medical interventions for his client to increase claimed special tort damages, even if that attorney (or the client’s treating doctor) believes those medical interventions to be unnecessary. A lawyer employed in an environment that prioritizes financial outcomes over the client’s interest would potentially be forced to jeopardize their job should their ethical duty to put their client’s interest first conflict with their employer’s business interest.

    Utah’s Rules of Professional Conduct reflect the core values of our profession, and they are designed to protect the public whom we, as licensed Utah attorneys, are all privileged to serve. As attorneys, we are sworn to serve as key members of a legal system on whom our society relies for justice and fairness. Lawyers must complete a rigorous program of education just to be permitted to sit for a bar examination. Our bar admission system is designed to test knowledge and competency, determine character and fitness to practice law, and assess adherence to a prescribed set of rules of professional conduct throughout an attorney’s tenure. This system not only serves to protect the public from untrained and unscrupulous would-be practitioners, but it also far surpasses what is required for a typical business. Fundamental change to our profession should not compromise our core values and enable profit-seeking by entrepreneurs who are unencumbered by our rules of ethical responsibility.

    Finally, consequences to the practicing bar should be a major concern of any access to justice review. The impact of changing law firm ownership and fee sharing rules would bring major upheaval to the practice of law. The effect of the ownership, fee sharing, and entity regulation recommendations would not simply involve channeling legal practice revenues from lawyers to private investors or legal tech companies. These revenue shifts would likely also result in both the Utah State Bar and local bar organizations realigning their focuses away from service to and regulation of practicing attorneys and toward the novel (and as yet unknown) consequences of these fundamental changes to Utah legal practice. This would represent a profound disruption to the traditional work of Utah Bar and local bar associations, which could better work through the current regulatory framework to encourage and support licensed attorneys’ efforts to deploy technologies and non-traditional legal services directly, instead of through intermediary business and technology firms.

    In sum, UDLA and DRI are concerned that the proposed rule changes will not lead to an increase in access to justice and would likewise negatively impact both the legal profession and the profession’s reputation.


  • 29 May 2020 6:41 PM | Michelle Barrus (Administrator)

    Here you will find a link to the CLE we had as well as the power point and PDF. 

    COVID-19 Resources.pdf

    COVID 19 audio.m4a

    Covid-19.pptx


  • 29 Apr 2020 10:46 AM | Michelle Barrus (Administrator)
  • 06 Jun 2019 3:50 PM | Michelle Barrus (Administrator)

    Thank you again for attending our 2019 Annual Meeting. For your convenience, we have links below for all the power points and documents referenced at the meeting. For additional Questions about materials, contact Michelle Barrus at udlaxd@gmail.com


    De-Escalation of Disputes (UDLA).doc

    2018-2019 Appellate Review.pptx

    ETHICS-CLE-5-3 Linda Smith.pptx

    Preparing for the Verdict.pptx

    Transforming Your Practice Powerpoint State Defense Meeting 2019.pptx

  • 05 Dec 2018 9:01 AM | Michelle Barrus (Administrator)

    Thank you to all of you who attended our luncheon. Below is a link to the slides from Alex Leeman's excellent presentation. If you have anymore questions, please don't hesitate to contact Michelle Barrus at udlaxd@gmail.com


    CLE - Discovery Do's and Don'ts.pdf

  • 02 Feb 2017 10:46 AM | Michelle Barrus (Administrator)

    Below is a list of bills UDLA is keeping our eye on. Click here to go to the Legislative page and you can sign up to track bills for yourself. 


    HB 140

    Motorist Insurance Amendments

    Modifies the Insurance Code to remove the option of an insured to reject uninsured or underinsured coverage

     

    HB 144

    Administrative Law Judge Qualifications

    Requires an individual to have a law degree in order to serve as an administrative law judge; and exempts current administrative law judges from the requirement to be a law school graduate.

     

    HB 153

    Uninsured and Underinsured Motorist Coverage Requirements

    Disallows a person from rejecting uninsured and underinsured motorist coverage if

    that person: employs an employee; and the employee drives a vehicle insured by the employer.

     

    HB 155

    Driving Under the Influence and Public Safety Revisions

    Reduces BAC for DUI to .05

     

    HB 157

    Homeowners Association Revisions (My favorite one so far.)

    Provides that a condominium or community association shall comply with certain requirements before bringing a legal action against a declarant related to a period of declarant control or period of administrative control.

     

    HB 170

    Small Claims Amendments

    Modifies a provision regarding a motor vehicle accident.

     

    H.B. 77

    5Th District Judge

    Adds a Judge to the 5th District Court

    H.B. 79

    Private Attorney General Doctrine

    Repeals a provision that disavows the private attorney general doctrine

    H.B.90    

    Insurance Opioid Regulation

    This bill requires commercial insurers, the state Medicaid program, workers' compensation insurers, and public employee insurers to implement policies to minimize the risk of prescribing certain controlled substances

    HB0202

    Trespass Amendments

    Enacts provisions related to trespass by a guest in a residence

    SB0098

    Excess Damages Claims

    Establishes a process for addressing personal injury claims to the extent that they exceed a statutory limit.

    SB0111

    Unmanned Aircraft Amendments

    This is a fairly significant bill. It will be interesting to see how homeowners insurance policies, and coverage disputes, will address this subject.


  • 05 Jun 2015 10:48 PM | Michelle Barrus (Administrator)

    The Utah Court of Appeals affirmed the district court ruling in Willis v. DeWitt stating Utah Code Section 78B-2-225 (3)(a) is a statute of repose and therefore may not be tolled by application of a discovery rule. The contract claims were not brought within 6 years of completion of construction as required by statute, and are thus time barred. Full opinion linked here. 

  • 02 Feb 2015 1:52 PM | Michelle Barrus (Administrator)

    A Summit County Jury found that the Defendant was not negligent arising from a collision that occurred with the Plaintiff during an adult hockey game in the Park City Hockey no check league.  Plaintiff was on a breakaway towards the goal.  Defendant was on defense and attempted to establish a position between Plaintiff and the goal and placed his stick to attempt to block the Plaintiff's shot.  He was unable to block the puck,  Unfortunately, both players attempted to occupy the same spot of ice at the same time.  As a result of the collision, both fell to the ice.  Defendant had a laceration to his cheek from Plaintiff's stick.  Plaintiff received 2 cracked ribs and, a sprained AC Joint. Defendant was called for a check, a minor penalty.  The league rules specifically state that playing the puck rather than the body is the rule.  Although there is incidental body contact, if players can avoid body conduct, they are required to do so.  Plaintiff hired the State Supervisor of referees to state that Defendant should not have gone so aggressively towards Plaintiff's position, particularly if Plaintiff was shooting the puck.  The video of the game had been sent to the league administrator, who reviewed it and did not escalate the call on the ice. 


    The interesting aspect of this case, was Judge Harris's decision to try it under a simple negligence standard rather than a reckless standard.  So, the jury was instructed with the MUJI negligence instruction with a couple of interesting modifications.  First, if the activity was within the ordinary range of activity of a no check league, then that was evidence that would not support a negligence finding.  However, the jury was also instructed that a violation of  a safety rule can be evidence of negligence, but it is not required.  Because Utah does not have a specific statute, rule or case precedence on using the Reckless standard, the court determined that the default was negligence.  A take away is if you are going to rely upon the referees in the game and the players in a specified recreational activity, to be safe, you should designate them as unretained experts so that they can specifically state that such activity is not out of the ordinary.  Wisconsin has a statute specifically applying the reckless standard to apply to recreational/sporting activities. 

    It was interesting to try this as a negligence case and argue that an inadvertent collision was not negligence. 


    If you have any questions, feel free to let me know. 

    PETERSEN & ASSOCIATES
    Lloyd R. Jones,
    Attorney
    (801)  517-3032

  • 08 Jan 2015 1:46 PM | Michelle Barrus (Administrator)


    *Notice of the 2015 post judgment interest rates, Utah Code Ann. 15-1-4, which are:

    The general post-judgment interest rate for 2015 is 2.27%.

    The post-judgment interest rate for judgments under $10,000 in actions regarding the purchase of goods and services is 10.27%. Hyperlink can be found below

     http://www.utcourts.gov/ resources/intrates/ interestrates.htm

     

    *A second post-judgment interest rate may also be news as it went into effect in May 2014 and it is found at 15-1-4(3)(b):

     

    Except as otherwise provided by law or contract, all final judgments under $10,000 in actions regarding the purchase of goods and services shall bear interest at the federal post judgment interest rate as of January 1 of each year, plus 10%. Hyperlink below.

     

     http://le.utah.gov/~code/ TITLE15/htm/15_01_000400.htm

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