HEAR YE.HEAR YE.HEAR YE.THE SUPREME COURT OF FLORI DAIS NOW IN SESSION.ALL WHO HAVE CAUSE TO PLEA , DRAW NEAR , GIVE ATTENTION AND YOU SHALL BE HEARD. GOD SAVE THESE UNITED STATES , THIS GREAT STATE OF FLORIDA AND THIS HON ONLY COURT. -- AND THIS HONORABLE COURT. ,, LADIES AND GENTLEMEN, THE FLORIDA SUPREME COURT.PLEASE BE SE ATED.
CHIEF JUSTICE: WEREN'T YOU YOU HERE YESTERDAY? WEREN'T YOU HERE TWO DAYS A GO? GOOD MORNING, LADIES ANDGENTLEMEN , AND WELCOME TO THE FLORIDA SUPREME COURT. THE FIRST CASE ON THIS MORNING'S DOCKET IS THE AMENDMENTS TO THE RULES REGULATING THE FLOR IDA BAR . HOW A RE WE , ARE YOU , MR , ARE YOU STARTING? YOU ARE JUST ON THE WRONGSIDE. THAT IS ALL.
WELL , YOUR HONOR . THE CLERK'S OF FICE SUGGESTED THAT I SHOULD GO FIRST. ACTUALLY IN FAIRNESS T O THE OPPOSITION, I THINK IT PROBABLY WOULD BE FA IRER FORTHEM TO GO AND H AVE REBUTTAL, BECAUSE ALL I W OULD D O IS PRESENT TO YOU THE BA R'S PROPOSAL .
I WOULD HA VE A QUESTION, MR. RICHARDS, REALLY OF MR , BECAUSE I WOULD LIKE TO FIND OUT AS W E B E GIN HERE THE REASONING OF THE COMMITTEEOF WHICH MR . HARDING IS THE CHAIR.MY CONCERN IS THAT THERE IS , IT SEEMS TO ME THAT UNDER THE CONSTITUTION PROVISION , THAT IN A $5 MILLION CASE,WHICH IS VERY REALISTIC IN A BABY B RAIN DAMAGE CASE , THE FEE UNDER THE CONSTITUTION WOULD BE $550,000. IF IT IS AN ADMITTED LIABILITY CASE , UNDER THE CONTINGENCY FEE RU LES, THE FEE WOULD BE $1.233,000 , W HICH SEEMS TO ME TO CREATE A SUBSTANTIAL CONFLICT OF INTEREST WITH A LAWYER , WHO IS ATTEMP TING TO TALK TO THE POTENTIAL CLIENT ABOUT AWAIVER, AND MY CONCERN IS WHETHER, UNDER THAT CIRCUMSTANCE FOR THE PROTECTION OF THE PUBLIC AND FOR THE PROTECTION OF THE BAR , THERE SHOULDN'T BE JUDICIAL INVOLVEMENT , AND WHY THE COMMITTEE RECOMMENDED AGAINST THERE B EING JU DICIAL INVOLVEMENT AND JUDICIAL REVIEW , A FTER ALL , WITH A WARD AFTER MINOR , WOULDN'T THE GUARDIANSHIP COURT HAVE TO REV IEW IT? THAT IS MY QUESTION.
YES, SIR.I APPRECIATE THAT, AND I WOULD HAVE TWO RESPONSES TO IT. THE FIRST ONE IS I UNDERSTAND YOUR HONO R'S CONCERN ABOUT THE CONFLICT. I GU ESS THAT ON THAT THEORY, ONE COULD AR GU E THAT ANYTIME THAT A LA WYER DEALSWITH THE FEE IS SUE AND ANYWAIVER, T HAT THERE IS A THEORETIC AL --
JUSTICE: WELL, BUT THIS IS A MATTER THAT IS IN THE CONSTITUTION OF THE STATE OF F LORIDA .
BUT THE REASONING OF THE BAR FOR PROPOSING THAT , THE PROPOSAL DOES NOT ELIMINATE JUDICIAL OVERSIGHT. IT CONTEMPL ATES THAT THERE IS ALWAYS JUDI CIAL OVERSIGHT , AND THAT TO THE EXTENT THAT THE FEE , WHICH IS B E ING THAT THE W AIVER PROVIDES FOR AFEE IN E X CESS OF THE CURRENTRULE, THAT T HERE WOULD N EED TO BE P R IOR JUDICIAL APPROVAL FOR THE ISSUE NOT BEING JUDICIAL OVERSIGHT BUT PRIOR JUDICIAL APPROVAL. THE REAS ONING THAT IS STATED BY THE TA SK FORCE FOR THAT , WAS BA SED UPON INFORMAL INTERVIEWS WITH JUDGES WHO HAVE HAD OCCASION TO DEAL WITH CU RRENT RULES AND WHOFELT THAT , E VEN THEIR EXPERIENCE WITH IT, THAT IT WAS AN UNNECESSARY USE OF JUDICIAL RESOURCES AND AN UNNECESSARY IMPOSITION POSITION ON THE CLIENT -- IMPOSITION ON THE CLIENT WHO UNIFORMLY PERSUADED THE COURT THAT THE WAIVER WAS A F REE AND VOLUNTARY WA IVER.
JUSTICE: BUT WE REALLY HAVEN'T BEEN DE ALING WITH SOMETHING THAT IS IN THE STATE CONSTITUTION.
WELL , I UNDE RSTAND , YOURHONOR , A ND I WILL HAVE TO TELL YOU IN ALL CA NDOR , I REALLY DON'T HAVE ANY REASON TO ARGUE WITH THE POSTURE THAT YOUR HONOR IS SUGGESTING. I THINK THAT THE PROP OSAL THAT THE BARMAID WOULD NOT INTEND SO MUC H TO U RGE THE COURT TO ELIMINATE PRIOR JUDICIAL REVI EW AS TO MAKE THE COURT AWARE OF THE OPINION OF THE JUDGES WHO HAD DEALT WITH THIS AND THE REASON THAT THEY WERE NOT INCLUDED IN THE PROPOSAL .
JUSTIC E: MR . RICHARDS , AS A T RIAL JUDGE I HAD THEOPPORTUNITY TO DEAL WITH THIS, AND IN FACT IREQUESTED A HEARING ON ONE OF THESE FEES IN EXCESS OF THE STANDARD , AND I REVIEWED AND IT E NDED UP BEING A PERFUNCTORY MATTER BECAUSE THE LAW FIRM 'S POLICY WAS WE DON'T ACCEPT THESE TYPE OF CASES. WE CH ARGE 40 PE RCENT IN EVERY CASE WE TA KE, AND IF THEY WA NT TO DO IT THAT IS THE FEE WE TAKE , SO IT WASN'T THE INABILITY T O OBTAIN COUNSEL ANYWHERE. THE ISSU E WHAT IS IT WAS THELAW FIRM'S POL ICY THAT THEY WEREN'T GO ING TO REPRESENT ANYBODY IN THIS TYPE OF CASE UNLESS THEY A CCEPT UP FRONT40 PERCENT , W H ETHER IT WAS SETTLED BE FORE TR IAL OR NOT. MY CONCERN WITH THIS AS JUSTICE WELLS SAYS , IS THAT WE ARE GOING T O REALLY GETINTO THE SAME END R U N TO THE CONSTITUTIONAL PROVISION, WHERE THERE REALLY WON'T , IT REALLY WILL NOT BE A CASE WHERE THERE IS AN INABILITY TO OBTAIN COUN SEL. IT IS JUST PRACTICE IN THEINDUSTRY THAT THE ATTORNEYS, NO MATTER THE NE CESSITY FORTHE ADDI TIONAL FEE , ARE NOT REALLY UN ABLE TO TAKE THECASE , BUT THAT IS JUST POLICY. THAT IS MY CONCERN .
WELL , I HE AR YOUR CONCERNAS BEING SOMEWHAT DIFFERENT THAN JUSTICE WELLS'SCONCERN.WHEN I INDICATED THAT THEBAR WAS NOT ADVOCATING THAT THERE BE NO JUDICIAL , PRIOR JUDICIAL APPROVAL , THAT IS ONE THIN G. I THINK THE BAR IS V ERY STRONGLY ADVOCATING THAT THERE NOT BE A REQUIREMENT AS THE OPPONENTS AREREQUESTING, FOR A SHOWING OF NECESSITY. THAT IS A ENTIRELY DIFFERENT ISSUE , AND IF I UNDERSTAND YOUR QU ESTION, THAT IS WH ATYOU ARE DI RECTING YOUR QUESTION TO. AM I CORR ECT ? IN OTHER WORDS THE SUGGESTION AND THE COUNT ER PROPOSAL THAT HAS BEEN MADEIS THAT A COURT MUST MAKE A FINDING THAT THE WAIVER IS NECESSARY, IN ORDER FOR THE CLIENT TO OB TAIN COUNSEL .
JUSTICE: I THINK IT IS CONNECTED. THE REASON THAT HEARINGS ARE PERFUNCTORY IS BECAUSE THERE IS NO BAS IS TO MAK E THAT FINDING , NO ABILITY TO MAKE THAT FI NDING. IT IS SK IRTED.
THE BAR'S PROPOSAL SUGGESTS THAT THERE NOT BE A REQUIREMENT FOR FINDING OF NECESSITY , SI MPLY THEREQUIREMENT THAT THE CLIENT HAS KNOWINGLY AND VOLUNTARILY AND WILL INGLY WAIVED THE RIGHT TO THE CA P. IN THAT RESPECT, I SUGGEST THIS PERSPE CTIVE TO THECOURT , W HICH I THINK IS AN IMPORTANT ONE. IF YOU SAY THAT THE ONLY TIME THAT A CLIENT IS ENTITLED TO THE WAIVER IS WHEN THERE IS A NECESSITY FOR IT BECAUSE THEY CANNOT OTHERWISE OBTAIN COUNSEL, THEN EFFECTIVELY WHAT YOU ARE DOING IS YOU ARE SAYING THAT THE PLAINTIFFS IN THESE MED I CAL LIABILITY CASES ARELIMIT TO DO THAT PO OL OF LAWYERS WHO ARE WILLING TO TAKE CASES WITH THIS SPECIFIC - -
JUSTICE: MY CONCERN IS REALLY , IN THIS CASE , BART'S PROPOSAL DOESN'T REALLY CONTAIN ANY REPRESENTATION BY COUNSEL THAT THEY ARE UNABLE AND UNWILLING TO T AKE THE CASE UNDER THE ARRANGEMENT AS SET FORTH IN THE CONSTITUTION, FOR EXAMPLE THE CASE THAT JUSTICE WELLS WAS TALKING ABOUT, WHERE IT MAY NOT NECESSITATE THE NE ED. THE ARGUMENT B Y THE BAR ISWE CANNOT TAKE THESE CASES UNDER THESE FEE SCHEDULES. I THINK YOU WOULD A GREE THAT THERE ARE SOME ME DICAL MALPRACTICE CASES WHERE ALAWYER COULD MAKE A REASONABLE FEE UNDER THE CONSTITUTION, AND MY CONCERN IS EVEN IN THOSE CASES, THIS WAIVER WILL BE SIGNED .
WELL , I CERTAINLY DON'T THINK THE BAR WOULD HAVE ANY OBJECTION TO A REQUIREMENT THAT THE LAWYER STATES THAT THEY ARE UNWILLING T O TAKE THE CASE FOR A L ESSER FEE , AS TO SAYING THAT THE FIRM IS UNABLE TO TAKE THE CASE FOR A LESSER FEE , I THINKTHAT WOULD BE AN IMPOSITION AND UNDUE PROPOSAL .
JUSTICE: WOULD YOU AG REE THAT IF WE ARE DEALING WITH CHAPTER 44 IN THE BA BY B RAIN DAMAGE EX AMPLE , THAT A COURT S HOULD MAKE C ERTAIN THAT THE , WITHIN THE GUARDIANSHIP'S RESPONSIBILITY, THAT THE GUARDIAN HAS MADE CE RTAIN THAT THE , THAT HE I S GOING TO WE IGH A CONSTITUTION R IGHT. SHOULDN'T , I MEAN , DOESN'T THE COURT HAVE THAT RESPONSIBILITY UNDER 7 -- BEFORE VARYING THE FEE UNDER 7.42.001.
I UNDERS TAND , YO UR HONOR , AND THE BAR IS A DD COMEVATING THAT THERE -- ADVOCATING THAT THERE BE NO PRIOR JUDICIAL APPR OVAL. I THINK THEY INCLUDED THAT AND THE REASON IT WASN'T INCLUDED IN WHAT THEY SUBMITTED WAS THEIR THIND ING A FTER DISCUSSION WITH JUDGES THAT THE JUDGES FELT IT NOT NECES SARY FOR APPROVAL.THAT IT TO OK UNNECESSARY TIME, UNNECESSARY BU RDEN , SOMETIMES SOME TIME BEFORE A HEARING CAN BE OBTA INED. I HAVE NOT BEEN INSTRUCTED TO ADVOCATE THAT THE BARTHINKS IT IS NECE SSARY TO ELIMINATE PRIOR JUDICIAL REVIEW. I THINK THAT THE BAR FEELS VERY ST RONGLY THAT THERE SHOULD NOT BE A NECESSITY FOR FINDING THAT YOU CANNOT OBTAIN AN OTHER LAWYER , BECAUSE THE CLIENT HAS THE RIGHT TO A LAWYER OF THE CLIENT'S CHOICE, AND IF YOUDO THAT , WHAT YOU ARE DOING IS , YOU ARE SAYING THAT PLAINTIFFS IN THESE CASES ARE LI MITED TO THAT POOL OF LAWYERS WILLING TO TAKE A C ASE WITH THIS CAP ON IT , WHE REAS DE FENSE LAWYERS HAVE NO LIMITATION ON THE FEE THEY CAN TAKE.
CHIEF JUSTICE: MR . RICHARDS, IT SEEMS TO ME THE ACTUAL WAIVER EXPLAINS WHAT WE ARETALKING ABOUT, WHICH IS THAT,WHAT THE CONSTITUTION REQUIRES, WHICH IS HOW MUCH THERE WOULD BE ENTIT LED TO RECEIVE , AND THE SE COND P ART SAYS IF A LAWYER CHOOSES NOT TO AC CEPT THE REPRESENTATION , THE LAWYER SHALL ADVISE THE CLIENT OF ALTERNATIVE T ERMS , SO UNLESS WE ARE , NO W, WHAT JUSTICE WELLS IS SPEAKING TO IS AN ISSUE OF A CLIENT THATIS LESS THAN ABLE TO UNDERSTAND WHAT I S IN WRITING AND EXPLAIN ED ORALLY , BUT WHEN YOU SAY THAT NECESSITY ISN'T PART OF THE KNOWING AND VOLUNTARY, IT SEEMS THAT , IN THE TE RMS OF THE WAIVER, THE CLIENT WOULD KNOW WHAT CONSTITUTIONAL ALLOWS AS -- WHAT THE CONSTITUTION ALLOWS AS THE MAXIMUM AND THEN WHY IT IS THAT THAT PARTIC ULAR LAWYER THAT THEY HAVE SELECTED IS NOT GOING TO ACCEPT REPRESENTATION ON THOSE, ON THAT BASIS.
YES, YOUR HONOR. JUST SO IT IS CLEAR , WHEN I TALKED ABOUT NECESSITY , THE ONLY NECESSITY I AM TALKINGABOUT IS NECESSITY INCLUDED IN THE COUNTER PROPOSAL THAT SAYS YOU CAN'T GET ANOTHER LAWYER.
CHIEF JUSTICE: BECAUSEISN'T THERE AN ISSUE OF FREEDOM OF CONTRACT ? IF NOT ALLOWED?
I COMPLETELY AGREE WITH YOU , YOUR HONOR , AND AS AMATTER OF FACT YOU REMINDED ME OF SOMETHING THAT I WASGOING TO RESPOND WERE TO JUSTICE WELLS'S QUESTION,WHICH IS THAT I THINK IT IS DISTINGUISHABLE FROM CASES INVOLVING OR INDIVIDUALS WHO THE LAW DEEMS TO BE INCAPABLE OR POSSIBLY INCAPABLE OF MAKING A RATIONAL JUDGMENT OF THEIR OWN. TALKING ABOUT EITHER A M INOR OR A PE RSON WHO IS MENTALLY KPAS AT THIS TIME -- KPAS TATED. TO SAY THAT EVERY -- CAP ACETATED. TO SAY THAT EVERY AD ULT CLIENT WITH MENTAL CAPACITY ARE INC APABLE OF MAKING A RATIONAL JUDGMENT --
JUSTICE: DON'T WE ALREADY D O THAT, IF THEY ARE GOING TO VARY F ROM THE RULE REQUIREMENT?
YES, YOUR HONOR, AND ITHINK THAT THE BAR CURRENTLY IS CONSID ERING , AWAITING, OF COURSE, ADDRESSING THIS ONE, THE POSSIBILITY TO SUGGESTTHAT THAT BE ELIMINATED. THIS COURT AND THE UN ITED STATES SUPREME COURT HAVE, BOTH, FIRMLY REJECTED ON ANUMBER OF OCCASIONS, THE PREMISE THAT ADU LTS WHO ARE F ULLY MENTALLY CAPABLE CANNOT MAKE R ATIONAL JUDGMENT FOR THEMSELVES.
CHIEF JUSTICE: JUSTICE CANTERO HAS A QUESTION AND THEN JUSTICE QUINCE.
YOU YOU RECEIVED A SUG GESTION THAT THE NOTICE OF FEE INC REASE AND WAIVER BE MORE SPECIFIC. I WAS WONDERING IN THEWAIVER, WHEN THE CLIENT AGREES TO AN INCREASE IN THE ATTORNEYS FEES THAT MIGHTOTHERWISE BE OWED, IF THERE SHOULDN'T BE AN ADDITIONAL CLAUSE IN THERE, SAYING THAT ABSENT COURT APPROVAL , THE ADDITIONAL FEE CAN BE UP TO 33 PERCENT OR 40 PERC ENT, WHATEVER THE RULE SAYS THAT THE CLIENT KNOWS , NOT ONLY THERE IS A INCREASE IN THE FEE BUT UNDER THE RULE , ABSENT THE JUDICIAL DETERMINATION , IT CAN BE UP TO THIS AMOUNT, SO THAT THEY KNOW WHAT THE DISPARITY IS.
I THINK TH AT IS THE REASONABLE PROPOSAL , AND IHAVE NO DOUBT THAT THE BAR WOULD AND THE TA SK FORCE WOULD HAVE NO QUARREL WITH THAT.
CHIEF JUSTICE: JUSTICE QUINCE.
WHAT IS THE MAIN REASON FOR NOT HAVING PRIOR JUDICIAL REVI EW , SEEM S TO BE THAT JUDGES DON'T WA NT TO HAVE TO DO THAT SO IT SEEMS L IKE IT IS A WORKLOAD ISSUE. DO WE HAVE ANY INFORMATIONABOUT WHAT , WHY THIS WOULD BE SU CH AN IMPOSITION FOR A T RIAL JUDGE TO DO IT PRIOR TO THE WAIVER?
THE ONLY INFORMATION THAT THE TASK FORCE HAD , JUSTICE QUINCE, WAS THE COM MENTS BY JUDGES THAT THEY CONT ACTED WHO HAD HAD EXPERIENCE WITH THIS, AND THEIR CONCERN, I THINK , WAS NOT ONLY THE JUDICIAL WORKLOAD BUT THAT IT ALSO NECESSITATED CLIENTS COMING IN FOR A HEARING, AND THAT BASED UPON THEIR EXPERIENCE, THEY FOUND NO EVIDENCE OF OVERREACHING O R ABUSE , NO INDICATION THATTHERE WAS A NECESSITY FOR THIS TY PE OF PRIOR JUDICIAL REVIEW. THAT IS THE REASON THAT THEBAR DID NOT PROPOSE IT. I PERSONALLY DON'T THINKTHAT THE TASK FORCE OF THE BAR WOULD CONSIDER THAT OBJECTIONAL TO BE INCL UDED , CERTAINLY NOT OF THE LE VEL OF FINDING OF NECESSITY , WHICH I THINK WOULD HAVE FEDERAL CONSTITUTIONAL IMPLICATIONS. BECAUSE WHAT YOU WOULD BE DOING THEN IS YOU WOULD BE IMPOSING A BU RDEN UPON PLAINTIFF CLIENTS WITH REGARD TO FEES THAT DOES NOT EXIST WITH DE FENSE CLIENTS.
CHIEF JUSTICE: WITH OURHELP , YOU HAVE U SED ABOUT 14 OF THE MINUTES TO INTRODUCE THE CASE. YOU MIGHT WANT TO SIT DOWN .
CHANGE YOU, YOUR HONOR.
MAY IT PLEASE THE COURT.
CHIEF JUSTICE: YOU LOOK FAMILIAR, T OO.
FOR WARD , I AM STEVEN GRIPES. OF COURSE , THIS IS THE THRUST OF -- STEPHEN GRIMES . OF COURSE THIS IS THE T H RUST OF OUR POSITION THAT THE BAR RULE FALLS SHO RT OF ADDRESS ING JUSTICE QUINCE , THE QUES TION, I READ SOMEWHERE IN A STATEMENT THAT THE COURTS O F FLORIDA HAVE HUNDREDS OF THOUSANDS OF RULINGS EVERY YEAR. THERE WOULD BE SOME MORE HEARINGS. NO QUESTION ABOUT THAT. I SU BMIT THAT THE PR EMISE OF AMENDMENT THREE IS THAT THIS CONSTITUTIONAL AMENDMENT, THERE ARE MA NY LAWYERS, MANY VERY COMPETENT LAWYERS THAT WOULD GLA DL Y TAKE THESE CASES FOR THE CONSTITUTIONAL FEE.
JUSTICE: WHAT WOULD HAPPEN IN A HE ARING THAT WOULD BE DIFFERENT FROM WHATWE HAVE HERE IN THE PROPOSED WAIVER, BECAUSE THE PROPOSED WAIVER TELLS THEM WHAT THE CONSTITUTIONAL AMENDMENT IS , AND TELLS THEM BASICALLYTHAT THIS LAWYER WILL NOTTAKE THE CASE UNDER THOSE T ERMS, TELLS THEM WHAT THEIR ALTERNATIVES ARE. ALL OF THAT INFO RMATION IS CONTAINED IN THIS WAIVER, SO WHAT MORE ARE YOU GOING TO GET OUT OF A JUDICIAL HEARING?
WELL , TAKE THE CASE THAT JUSTICE WELLS BROUGHT UP , WHERE YOU HAVE A $10 MI LLION CASE AND A POTENTIALRECOVERY, I THINK THE JUDGE WOULD WANT TO MAKE CERTAINTHAT THE CLIENT UNDERSTOOD THAT, UNDER THOSE , UNDER THE REASONABLE LIKELIHOOD OF THAT CASE , THE DIFFERENCE IN THE FEE OF THE CONSTITUTIONAL LIMITATION WOULD BE E ITHER $550,0 00 OR $1.3 MIL LION , UNDER THE 33.3 OR 40 PERCENT ARRANGEMENT.
JUSTICE: IF YOU WANT TO DISCUSS THE THEORETICAL THINGS , YOU HAVE GOT $ 5 MILLION THAT IS TURNED AROUND THIS MOR NING AND HOSPITAL LIENS AND ALL KINDS OF OTHER LIENS OUT THERE AND THIS CONSTITUTIONAL PROVISION SAYS YOU ARE ENTITLED TO 70 PERCENT , SO DO YOU GET INVOLVED IN THIS HEARING IN ANALYZING WHETHER THEY ARE VALID LIENS , NOT VALID LIENS , HOW MUCH THE CLIENT OR PROSPECTIVE INJURED PERSON IS GOING TO RECEIVE, BE CAUSE I T SAYS 7 0 PERCENT , AND YOU AGREE THAT THERE ARE LIENS OR DOES THIS CONSTITUTIONAL AMEN DMENT INVALIDATE ANY K IND OF MEDICAL LIEN IN CONNECTION WITH RECOVERIES?
NO. THE LIEN SITUATION WOULD BE JUST LIKE IT WOULD BE .
JUSTICE: SO THEREFORE YOU HAVE TO GO IN AND DO SOME KIND OF ANALYSIS ON WHAT THEPARTY IS G OING TO AC TUALLY TAKE HOME TO EVEN HAVING ANY KIND OF LEGITIMATE DISCUSSION OF THOSE NUMBERS. IF NOT , WE ARE JUST THROWING AROUND THEORETICAL NUMBERS.
WELL, YOU YOU ARE NOTGOING TO HAVE A EXACT DETERMINATION.IT IS THE IDEA THAT, IF THE CLIENT UNDERSTANDS IT I S GOING TO BE, YOU HAVE TO M AKE SURE THAT THE CLIENT UNDERSTANDS THAT THERE IS GOING TO BE A DRAMATIC DIFFERENCE IN THE AMOUNT OF FEES THAT THE CONSTITUTION BASICALLY SETS FORTH AS THE FEE .
JUSTICE: IT MA Y NOT BE, IF THE LIENS ARE OVER 50 PERCENT OF THE RECOVERY, IT IS NOT GOING TO BE A DRAMATIC DIFF ERENCE, SO THAT IS WHY I SAY WE ARE JUST TALKING HYPOTH ETICAL S RATHER THAN WHAT IS GOING TO HA PPEN IN A CASE.
CHIEF JUSTICE: WOULD YOU ANTICIPATE, AND I THINK THAT IN AN AUTOMOBILE ACC IDENT CASE, OBVIOUSLY THERE ARE CLEAR LIAB ILITY CASES , AND WHEN A LAWYER GE TS THOSE , THE ID EA THAT THEY ARE EVEN GETTING A THIRD IS PROBABLY WAY MORE THAN THEIR TIME IS INVOLVED, BU T IN ME DICAL MALPRACTICE CASES , I DON'T KNOW IF WE HAVE ANY STATISTICS ABOUT HOW MANY ARE SLAM D UNK , AND I AM SUSPECTING THAT THIS CONSTITUTIONAL AMENDMENT WASSORT OF DISCOURAGING CASES FROM BEING BROUGHT THAT MIGHT OTHERWISE BE BR OUGHT IF THERE WAS A LARGER FEE, SO WOULD YOU ANTICIPATE IN A HEARING , THAT THE JUDGE WOULD INQUIRE OF THE LAWYER IF THIS IS A DIFFICULT LIABILITY CASE , BEC AUSE THIS IS ONLY GOING TO BE AT THE BEGINNING. WE ARE TA LKING ABOUT, WELL , YOU MIGHT GET $5 MILLION OR $10 MILLION , BUT REAL LY IN MANY OF THESE CASES , EVERYONE ENDS UP WITH ZERO , SO WHAT WOULD THE SCOPE OF THE INQUIRY BE , IF THERE WAS THIS JUDICIAL REVI EW? WOULD IT BE ABOUT THE DIFFICULTY OF THE CASE? OF COURSE THIS IS AT THEBEGINNING, SO THE LAWYER HASN'T YET INVESTIGATED IT. AND SO TO MAKE IT MEANINGFUL , I THINK THAT IS WHERE I AM T RYING TO UNDERSTAND WHAT WOULD MAKE IT MEANINGFUL WITHIN THE CONTEXT OF WHAT WE ARE TA LKING ABOUT, SO THAT IT WOULD BE WORTHWHILE TO HAVE A LAWYER BR ING IN H IS OR HER CLIENT WHO MIGHTBE IN V ERY BAD CON DITION , TO THE COURTH OUSE , AND HAVE THIS INQU IRY TAKE P LACE .
I THINK THERE WOULD HAVE TO BE SOME DISCUSSION, TOTHE EXTENT THAT THE LAWYER IS ABLE TO SAY, AS TO THE NATURE OF THE CASE AND WHETHER OR NOT THE LIA BILITY , THAT THE LIKE LIHOOD OF LIABILITY AND THAT SORT OF THING , YOU ARE NOT GOING TO HAVE, IT WOULD BE --
CHIEF JUSTICE: ISN'T THAT THE PROBLE M? AT THAT ST AGE , IF THE CASE HASN'T YET, THIS IS AT THE OUTSET. THAT IS WHEN THE CONT RACT GETS SIGNED. THE LAWYER DOESN'T REALLY KNOW AT THAT PO INT , UN LESS IT IS , THEY MAY KNOW IF SOMEBODY SAID THEY LE FT A RAG IN THE , IN SIDE , BUTTHOSE ARE FEW AND FAR BETWEEN. WHAT, W HETHER THERE IS EVEN A CHANCE THAT THEY ARE ACTUALLY GOING TO BRING THIS TO COURT.
IT WOULD BE O N A CASE-TO-CASE BASIS, AND EACH CASE WOULD BE DIFFERENT. THE LAWYER WOULD CERTAINLYHAVE SOME IDEA. HE SHOULD NOT , THE LAWYER ISN'T GOING TO TAKE A CASE TO START WITH AND SHOULDN'T, IF HE HAS NO IDEA OF THEPOSSIBILITY OF LIABILITY, I WOULDN'T THINK.
CHIEF JUSTICE: TAKE IT TO INVESTIGATE . ISN'T SOMEONE ENTITLED , IF THEY HAVE BEEN SEVERELY INJURED, IF A LAWYER IS WILLING TO INVEST IGATE IT? BUT YOU CAN'T INVESTIGATE IT UNLESS YOU HAVE A CONTRACT WITH THE HE ARING BEING RECORDED SO THAT IT IS SUBJECT TO APPELLATE REVIEW? WHAT GUIDANCE WOULD WE G IVE TO THE TRIAL JUDGES , AND I THINK THAT WAS WHAT THE , PROBABLE BECA USE OF THAT DISCOMFORT IN GET TING INVOLVED IN THE ATTORNEY/CLIENT RELATIONSHIP , THAT PROBABLY IS WHY THESE OTHER JUDICIAL OVERSIGHTS HAVE NOT BEEN REALLY SUCCESSFUL, BECAUSE I WOULD ASSUME JUDGES ARE ACTUALLY , IT I S NOT A WORKLOAD ISS UE BUT THAT THEY ARE UNCOMFORTABLE GETTING INTO WHAT IS REALLY AN ATTORNEY CLIENT RELATIONSHIP ISSUE , AFTER YOU GET PAST THE INITIAL QUESTION OF --
WELL , IT SEEMS TO ME THAT IF YOU HAVE THE HEARING , YOU DISCUSS IT TO THE EXTENT THAT THE LAWYER WAS ABLE TO EXPLAIN WHAT IS INVOLVED. THE JUDGE WOULD LAY OUT IN DETAIL, SO THE CLIENT MAKES SURE THE CLIENT , THESECLIENTS ARE NOT NECESS ARILY PEOPLE WHO ARE SKILLED IN THIS SORT OF THING. THEY SIGN A LOT OF PAPERS.
CHIEF JUSTICE: MY CONCERN WOULD BE IF SOMEBODY, IF THE JUDGE IS JUST SAYI NG YOU CAN GET , A LAWYER COULD TAKE THIS CASE AND ONLY CHARGE THIS AMOUNT , YOU KNOW , THERE ARE LAWYERS UNFORTUNATELY IN THE STATE THAT MAY BE WOULD TAKE A CASE LIKE THAT , AND THEN THE RECO VERY IN THE EN D WOULD BE 20 PERCENT OF WHAT A LAWYER WHO IS EXPERIENCED WOULD BE ABLE TO OBTAIN , S O I THINK IT PUTS THE JUDGE IN A VERY DIFFICULT PO SITION , O NCE YOU GET PAST THE EXPLAINING THAT THERE IS THIS CONSTITUTIONAL AMENDMENT AND YOU KNOW YOU ARE KNOW INGLY AND VOLUNTARILY WAIVING IT TO HAVE THIS LAWYER.
WELL , I AM CONFIDENT THAT,IN THE SITUATION, IF THEJUDGE WERE IN THE POS ITION THAT HE COULD NOT DETERMINE WITH ANY DEGREE OF REASONABLENESS, UNL IKE CASES THAT JUSTICE WELLS POSTURED,THAT HE WOULD SIMPLY , HE OR SHE , THE JUDGE WOULD SIMPLY GO OVER IN G REAT DETAIL .
JUSTICE: WHAT DO WE DO , THOUGH WR KTS EXPERIENCE THAT WE HAVE ON THE GR OUND, THAT -- THOU GH , WITH THE EXPERIENCE THAT WE HAVE ON THE GROUND THAT , IS WHAT THE BAR JUST TOLD US , COUN SEL JUST TOLD US IS THAT WE HAVE A SUBSTANTIAL EXPERIENCE FACTOR ALREADY, AND THAT THE FEEDBACK FROM THE TRIAL COURT JUDGES IS THAT THESE ISSUES ARE NOT AR ISING, SO THAT THEY HAVE TO G O INTO GREAT DETAIL, AND THAT, REALLY , IF I UNDERSTA ND IT CORRECTLY , THEY ARE SAYING YOU ARE REQUIRE AGO CLIENT AND A LAW FI RM -- REQUIRING A CLIENT AND A LAW FIRM AND A JUDGE T O SCHEDULE SOMETHING IN THE F UTURE , ANDTO US E ALL OF THESE RESOURCES , NOW , AND THE N AT THE END OF THE DAY , WE ARE FINDING THAT THIS IS NOT A PRODUCTIVE EXERCISE , ANDWHEN YOU COUPLE THAT EXPERIENCE ON THE GROU NDWITH THE QUESTIONS YOU HAD HERE , I WONDER WHETHER YOU ARE CONTEMPLATING THAT A PROSPECTIVE DEFENDANT , FOR INSTANCE, COULD PARTICIPATEIN THIS HEARING, OR WHETHEROR NOT AT THE HEAR ING THEY ARE GOING TO GO INT O THE FACT OF WHETHER PROSPECTIVE DEFENDANTS AC TUALLY HAVE INSURANCE OR WHETHER THEY HAVE A FINANCIAL RESOURCE FOR ANYTHING TO ACTUALLY EVENTUALLY BE COLLECTED , BECAUSE AS YOU WELL KNOW , THAT THESE THIN GS ARE ENORMOUSLY COMPLICATED, AND THEY CAN R ANGE FR OM THERE BEING ABSOLUTELY THE ABSORPTION OF HUNDREDS OF THOUSANDS OF DOLLARS OF COSTS BY A LAW FIRM , INOTHER WORDS IN THE HOLE , TO ENORMOUS AWAR DS SH ARED B Y THE CLIENT AND THE , SO I AM JUST HAVING DIFFICULTY OF , WITH THE EXPERIENCE ON THE GROUND A L READY , OF YOU REALLY LAYING OUT TO US ANYTHING DIFFERENT THAN WHAT THE TRIAL COURT JUDGES ARE FEEDING BACK TO THE BAR NO W, THAT THESE ARE NOT PRODUCTIVE USES OF JUDICIAL RESOURCES.
WELL , THE MA JOR DIFFERENCE IS THAT THIS IS IN THE CONSTITUTION . THIS REQUIREMENT --
JUSTICE: TELL THE TRIAL JUDGES HERE THAT HAVE SA ID BACK THAT THESE ARE NOT PRODUCTIVE HEARINGS, WHAT WOULD YOU SA Y TO THE TRIAL JUDGE? WOULD YOU SAY, WELL, JUDGE, YOU ARE JUST NOT DOING IT RIGHT.YOU ARE NOT DOING , REALLY , WHAT NEED S TO BE DONE HERE , AND WHAT WOULD YOU TELL THE JUDGE THAT THEY NEED TO DO , TO MAKE IT PRODUCTIVE ?
THE DIFFERENCE HERE, THIS IS A WAIVER OF A CONSTITUTIONAL RIGHT, AS CONTRASTED TO A COURT RULE , AND THE JUDGES NEED TO GO INTO IT I N MORE CANDEPARTMENT IF THEY HAVEN'TBEEN DOING IT. AT LEAST -- INTO MORE DEPTHIF THEY HAVEN'T BEEN DOINGIT. I DOUBT WHEN THE RULE WAS PUT IN THERE THAT THEY CONTEMPLATED THAT THERE WOULD BE SOMETHING THAT JUST PASSING BY AND A FU TILE EXERCISE OR THE COURT WOULDN'T PUT IT IN THE RULE IN THE FIRST PLACE.
CHIEF JUSTICE: YOU ARE IN YOUR REBUTTAL. YOU ARE IN MR . LITTLE'S TIME, BUT JUSTICE CANTERO HAS A QUESTION, AND I WANT TO MAKE SURE THAT GETS ANSWERED .
JUSTICE: TOWARD THEBEGINNING OF YOUR PRESENTATION, YOU STATED THAT THERE ARE MANY LAWYERSIN THE STATE THAT ARE WILLING TO TA KE THESE CASES , BASED ON THE CONSTITUTIONAL LIMITED ATTORNEYS F E ES, AND I WAS WONDERING, TO ME THAT IS A DEBATABLE PROPOS ITION. D O YOU HAVE E V IDENCE SUPPORTING THAT POSITION ?
WELL , I THINK , I HAVE NO EMPIERICAL EVI DENCE. ANECDOTAL , BUT THAT IS NOT THE RECORD OR ANYTHING LIKE THAT, BUT LET ME SAY THIS. OTHER STATES HAVE PUT IN SIMILAR KINDS O F LIMITATIONS. THERE HAVE BEEN N O SHOWINGTHAT I HAVE HEAR D OF NOTHING IN THOSE STATES THAT HAVE INDICATED THAT THEY WANT COMPETENT LAWYERS TO HANDLE IT, AND I SUGGEST THAT , WITH A CONSTITUTIONAL AMENDMENTAT LEAST AT THE OUTSET, THERE NEEDS TO BE SOME SHOWING THAT YOU CAN'T GET COMPETENT LAWYERS TO DO, IT AND OF COUR SE IF THAT WERE TRUE, THE JU DGE WHEN THEY HAD THE HEARING , WOULD CERTAINLY , ONCE HAVING MADE THE EXPLANATION , WOULD AL LOW THE EXTRA FEE TO GO FORWARD , BUT THIS IS A CONSTITUTIONAL RIGHT, AND IN OTHER JUDICIAL PROCEEDINGS , CERTAINLY THE JUDGES ARE INVOLVED ANY TIME A PER SON G IVES UP A CONSTITUTIONAL RI GHT.
JUSTICE: AREN'T THOSE WAIVERS?IT IS ONLY IN THE N ATURE OF WHETHER IT IS FR EE GIVEN AND VOLUNTARILY GIVEN AND WITH FULL INFORMATION. IT IS NOT GIVEN ON THE BASISOF SOME OTHER CRITERIA , FOR EXAMPLE THE WAIVER OF A JURY TRIAL , UNDER THOSE CIRCUMSTANCES, YOU DON'THAVE TO COME IN AND PROVE YOUR WHO LE CASE AND WHAT THIS WHOL E CASE IS ABOUTBEFORE YOU ACCEPT THAT WAIVER, DO YOU , SIR?
BUT THE JUDGE , MAKE SURE THAT YOU UNDERSTAND WHAT YOUARE WAIVING WITH THAT JURY TRIAL.
JUSTICE: THAT IS TRUE.
CHIEF JUSTICE: I KNOW THAT WE HAVE VERY LITTLE TIME FOR MR . LITTLE BUT WE WILL GIVE YOU ANOTHER MI NUTE OR TWO SINCE YOU CAME ALL THE WAY FROM GAINESVILLE .
YOUR HONOR , MAY IT PLEASE THE COURT.I AM JOE LITTLE , A MEMBER OF THE BAR IN GO OD STA NDING . WITH LINC OLN , WE ALL SEEK TO PROTECT GOVERNMENT OF THEPEOPLE, BY THE PEOPLE AND FOR THE PEOPLE, AND I COME HERE TO DAY --
JUSTICE: MR . L ITTLE , SINCE YOU ONLY HAVE A L IMITED AMOUNT OF TIME , LET ME ASK YOU THIS. THIS IS WHAT YOU ARE GETTING AT, I THINK. YOU BELIEVE THIS IS ONE OF THOSE CONSTITUTIONAL RIGHTS THAT CANNOT B E WAIVED?
I HAVE SAID THAT IN THEBRIEF AND I AM HERE TODAY TO TELL YOU SOMETHING DIFFERENTIF I MAY . JUST JUST YOU YOU ARE HERE T ODAY TO TELL ME SOMETHING DIFFERENT?
A DIFFERENT PO INT. UNLESS YOU HAVE A SPECIFIC QUESTION.
JUSTICE: I DO HAVE A SPECIFIC QUESTION. IT SEEMS LIKE THERE ARE MANY , MANY CONSTITUTIONAL RIGHTS THAT PEOP LE HAVE THAT WE SAY CAN BE WAIVED. TO ME TWO OF THE MOST FUNDAMENTAL RIGHTS ARE THERIGHT TO COUNSEL AND THERIGHT TO RE MAIN SI LENT , AND D URING PO LICE INVESTIGATIONS WE DON'T REQUIRE THAT ADEFENDANT IN ORDER TO WAIVE THE RIGHT TO REMAIN SILENT WHICH COULD RESULT IN IMPRISONMENT OR EVEN ASENTENCE OF DEATH AS WE SEE ON A D AILY BASIS HERE, WE DON'T REQUIRE A DEFENDANT TO GO TO A JUDGE AND SAY DO YOUKNOW WHAT YOU ARE DOING? DO YOU KNOW THAT YOU DON'THAVE TO W AIVE THIS RIGHT, ET CETERA, ET CE TERA. THAT SEEMS TO ME A RIGHT MUCH MORE FUNDAMENTAL THAN THE RIGHT TO A CERTAIN AMOUNT O F ATTORNEYS FEES IN A ME DICAL MALPRACTICE CASE, SO WH Y IS THIS ANY DIFFERENTFROM THAT?
THE REASON IS THAT THE RIGHT IN THOSE CASES THAT YOU MENT IONED , HAS INHERENT WITHIN IT , THE RIGHT TO SPEAK OR NOT TO SPEAK. THE RIGHT TO SEEK COUNSEL OR TO REPR ESENT MYSELF. THAT IS HISTORICALLY THE COMMON LAW RIGHT THAT IS INVOLVED IN THOSE PROVISIONS. SAME THING WITH THE RIGHT OF JURY TRIA L. THE RIGHT OF JURY TRIAL HAS ALWAYS BEEN THE RIGHT, AT L EAST SINCE WE HAVE HA D A RIGHT OF JURY TRIAL , THE RIGHT TO SEEK A JURY OR NOT TO SEEK A JURY, SO THE N OTION THAT YOU INDICATE IS INHERENT IN THE RIGHT , AND THAT IS THE DIFFERENCE.
JUSTICE: WHY IS IT NOT INHERENT THAT YOU HAVE THERIGHT TO SEL ECT WHO WILL BE YOUR SPOKESPE RSON IF YOUENTER THAT SYSTEM?
YOU CERTAINLY DO .
WHY IS THAT ANY DIFFERENT?
THE CONSTITUTION , YOURHONOR , HAS IND ICATED WHETHERIT IS GOING TO BE A CONDITION OF THAT CONT RACT, JUST AS THE CONSTITUTION TELLS YOU THAT YOU CANNOT UNDERTAKE A CONTRACT IN FLORIDA OR THE UN ITED STATES WITHOUT A WAIVER. THAT IS NOT A WAIVER. THE RIGHT TO ENTER INTO A USEROUS CONTRACT IS NOT WAIVEABLE, SO SOME RIGHTS ARE NOT WAIVEABLE. THIS SUBPOENA ONE SUCH RIGHT. LET ME, I HAVE GOT , BRIEFLY.
CHIEF JUSTICE: I WANT TO ASK YOU THAT. THE U .S. E ROUS ISSUE , THERE IS P U BLIC POLICY INVO LVED.
Y ES.
CHIEF JUSTICE: THIS IS WHERE WE WERE THE LAST TIME WE WERE HERE BEFORE , AND IT IS AS TO W HETHER THE CONSTITUTIONAL RIGHT WAS PUTINTO EF FECT TO AFFECT A BROAD PUBLIC POLI CY OF DISCOURAGES MEDICAL MALPRACTICE CASES OR INTENDED TO BENE FIT THE INDIVIDUAL CLAIMANT , AND DOESN'T IT MA TTER IN T ERMS OF THE INQU IRY THAT IS MA DEON WHETHER THE RIGHT IS WAIVEABLE?
YOU HAVE GOT TO LET M E SAY WHAT I WANT TO SAY.
CHIEF JUSTICE: GOOD. AS OPPOSED TO RESPONDING .
THIS MATTER WAS BEFORE THIS BOARD IN A PROCEEDING BROUGHT BY THE ATTO RNEY GENERAL UNDER THE CONSTITUTION, AND IN THAT PROCEEDING, THIS COURT HAD BEFORE IT THE BA LLOT SUMMARY , PROPOSES TO AMENDMENT THE S TATE CONSTITUTION TO PROVIDE THAT AN IN JURED CLAIMANT WHO EN TERS INTO A CONTINGENCY FEE WITHIN THE ATTORNEY IN A CLAIM OF MEDICAL LIABIL ITY , THE WORDS I WANT TO EMPHASIZE ARE THESE , IS ENTITLED TO, AND THEN THE NUMBERS . NOW , AT THAT TIME IN THAT PROCEEDING , IF ANY ONE OF YOU JUDGES HAD AS KED MR . GRIMES UNDER THIS PROVISION WILL A LAWYER BE ABLE TO GE T A CLIENT TO WAIVE , AND IF HE HAD ANSWERED YES , YOU WOULD SAY, THEN , THIS BAL LOT SUMMARY AND THE LANGUAGE ITSELF, IS MISLEADING . YOU ARE STOOPING THE PEOPLE AND WE ARE NOT GOING TO LET YOU PUT THAT BEFO RE THE PEOPLE. THE PEOPLE OF FLORIDA HADSPOKEN ON THIS MATTER AND THIS OPPORTUNITY IN THIS MATTER. WHEN IT WENT BEFORE THE PEOPLE, THE PEOPLE HAVE SAID YES. THERE IS A REMEDY.
JUSTICE: BU T MR . L ITTLE , THE CASE LAW IS V ER Y LONG IS IT NOT AT LEAST IN THIS COURT AS TO THE INTERPRETATION OF WHETHER SOMETHING IS CL EAR IS NOT ITS ULTI MATE LIT IGATION E FFECT BUT WHETHER IT IS CLEAR ON ITS FAC E AS IT COMES TO THE PEOPLE. YOU MAY HAVE LITIGATION ON IT FOR YEARS AS TO ANY PROPOSED STATUTORY AMENDMENT AND WHAT IT MEANS , BUT THE KEY THAT YOU YOU ARE LOOKING TO IS WHETHER IT CAN WAIVEOR NOT WAIVE AND WHAT LITIGATION IT MAY PRODUCE IS NOT CLEAR ON ITS FACE . IS THAT WHAT THE CASE LAWSAYS?
NO, SIR. JUST JUST DOESN'T SAY THAT?
NO, SIR. THIS COURT HAS DE CIDED MANY CASES IN WHICH YOU EXCLUDED BALLOT FR OM THE BALL OT ON THE GROUNDS THAT THE BALLOT WAS MISLEADING IN OMITTING SOMETHING THAT WAS IMPORTANTTO THE APPLICATION OF THE BALLOT.
JUSTICE: BUT WHAT JUSTICE LEWIS IS SAY ING IS THAT WE STRIKE THESE IF THEY ARE MISLEADING, BECA USE THE A CTUAL LANG UAGE THAT IS BEING USED IN THE BALLOT SUMMARY IS MISL EADING , NOT THAT WHAT MAY HAPPEN IN THE FUTURE WITH THAT PROPOSED AMENDMENT IS MISLEADING .
I DISAGREE WITH YOU, YOUR HONOR. I THINK YOU ARE W RONG .
CHIEF JUSTICE: AND --
YOU ARE WRONG , AND THERE ARE CASES IN WHICH THIS COURT HAS ASKED THE QUESTION.
CHIEF JUSTICE: JUSTICE LEWIS , YOU HAVE A QUESTION? WE HAVE GIVEN YOU , JUST SO THE RE CORD REFLECTS, AN OTHER , ALMOST , FOUR MINUTES. AND YOU KNOW , WHAT EVER W E D ECIDE ON THIS ISSUE , IT IS ALWAYS JUST AS WE HAD MR YESTERDAY COMES U P, IT IS ALWAYS GOOD TO KNOW THAT WE HAVE LAWYERS IN THE STATE THAT CARE EN OUGH TO COME UP HERE AND PASSIONATELY ADVANCE AN ISSUE WHICH THEY HAVE NO PERSONAL GAIN , ONE WAY OR ANOTHER, SO I THANKYOU FOR BEING HERE .
THANK YOU , YOUR HONOR , AND THE REME DY FOR THIS MAT TER IS IN THE PEOPLE.
CHIEF JUSTICE: THANK YOU. MR . RICHARD.
JUSTICE: LET ME ASK YOU A QUESTION IF I CAN. YOU MENTIONED THAT THE DEFENDANTS HAVE THEOPPORTUNITY TO H IRE WHO THEY WISH, AND I THINK YOU CAN AGREE WITH ME WHEN DEFENDANTS IN THIS CASE DO IT, THEY DO IT AT AN HO URLY RATE, CORRECT? IT IS NOT A CONTINGENCY FEE WITH DEFENDANTS IN MEDICAL MALPRACTICE CASES.
GENERALLY THEY ARE ALTHOUGH THERE ARE CONTINGENCY CASES.
JUSTICE: GENERALLY.WHAT WOULD BE WRONG WITH MODIFYING SOME THING LIKE THIS SO THAT AT LEAST PLAINTIFF'S COUNSEL IS GUARANTEED A PARTIC ULAR HOURLY RATE. IT MAY BE 300 , 3 50 , IT MAY BE $500 AN HOUR , BUT THAT COU NSEL IS GUARANTEED A FEE THAT MAY BE EQUIVALENT TO THE VARIETIES ANSWER IN THE DEFENDANT 'S PART, BUT AT LEAST BE SURE THAT COUNSEL GETS A REASONABLE HOURLY RATE. WHY WOULD THAT NOT BALANCE THE INTEREST OR CONCERNS IN ADDITION TO COME ST?
THE ONLY REASON IT WOULD NOT -- TO THE COST?
THE ONLY REASON IT WOULD NOT BALANCE IS T IS BECAUSE COURTS GET INTO CASES TELLING LAWYERS WHAT CASES THEY WISH O R MAY NOT WISH TO T AKE , OR THE PO SITION IF A CLIENT WISHES TO HIRE A LAWYER WHO IS NOT WILLING TO TAKE A CASE WITH EITHER THAT HOURLY FEE AS THE COURT HAS SAID OR THE CAP, THEN THEYHAVE GOT TO GO FIND ANOTHER LAWYER.
JUSTICE: WHAT WOULD BE THE REASONABLE BASIS FOR THELAWYER, IN CONSIDERATION OF THE CONSTITUTIONAL RIGHT THAT MR . LITTLE SAID , NO T TO TAKE THE CASE, IF T HEY WERE GIVEN A REASONABLE FEE?
WELL , THE ONLY REASONABLE BASIS IS THAT ANYBODY IN THIS SOCIETY IS ENTITLED T O ASSUME WORK OR NOT AS SUME IT, WITH THE NAR ROW EXCEPTION OF THOSE CRIMINAL CASES .
JUSTICE: ISN'T THAT THE E XACT PROBLE M THAT THIS CONSTITUTIONAL AMENDMENT WAS INTENDED TO ADDRESS , TO ASSURE THAT PEOPLE WERE ABLE TO GET ATTORNEYS TO TAK E THEIR CASES AT SOMETHINGLESS THAN WHAT WAS BEC OMING THE PR ACTICE ?
I DON'T KNOW WHAT THE INTENT WAS OF THE AMENDMENT , BUT I DON'T THINK THAT THAT WOULD BE THE OPERATIVE EFFECT OF THE AMEN DMENT. I PERS ONALLY BELIEVE THE INTENT OF THE AMENDMENT WAS QUITE OPPOS ITE. IT WAS TO ELIMINATE THE ABILITY OF MANY PEOPLE TO F ILE LAWSUITS AT ALL , BECAUSE THEY CAN'T GET LAWYERS .
JUSTICE: ISN'T PROFESSOR LITTLE CORREC T THAT THIS COURT HAS , A FTER THE FACT , SCRUTINIZED CONSTITUTIONAL INITIATIVES TO DETERMINE WHETHER, IN FACT , THEY WERE MISLEADING , CALLING TO MIN D THE CASE OF ARMSTRONG V ERSUS HARRIS.
YES, SIR. AND I THINK THAT LEA DS TO WHAT IS PERHAPS THE MOST IMPORTANT POINT IN THIS DISCUSSION, W HICH IS THAT THIS AMENDMENT INCLUDES NO NONPAYMENT PROVISION, AND IF IN -- NONWAIVER PROVISION, AND IF IN FACT IT HAD INCLUDED A NONWAIVER POSITION OR IF IT HAD INCLUDED LANGUAGE SUGGESTING THAT YOU CAN ONLY WAIVE WHEN THERE IS NECESSITY AND THE BALLOT SUMMARY HAD NOT STATED THAT THERE, IS LITTLE DOUBT THAT THIS COURT WOULD HAVE REMOVED IT FR OM THE BALLOT FOR FAILING TO INFORM THE PUBLIC OF THE FACT THAT THERE WAS A VERY SIGNIFICANT LIMITATION ON ITS RIGHTS INCLUDED IN THE AMENDMENT, SO THE SUGGESTION, N O W, AFTER THE FACT , WHEN THERE WAS NO NOT ICE TO THAT E FFECT TO THE PUBLIC , THIS COURT COULD ENGRAPH THOSE LIMITATIONS ON IT , IN THE FIRST PLACE MAKES FOR SENSEAND THE SE COND PLACE WOULD BE EX ACTLY THE TYPE OF JUDICIAL ACTI VISM THAT MANY OF THE PERSONS WHO ARE ADVOCATING THE ADDITIONS TO THE AMENDMENT DECRIED. IT WASN'T IN THE AMENDMENT.
CHIEF JUSTICE: ON THAT NOTE WE APPRECIATE YOUR ADVOCACY , AND WE WILL TAKE THIS MATTER UNDER ADVISEMENT. THANK YOU , AND THAN K MR FOR CHAIRING THE TASK FORCE , AND PROFESSOR LITT LE, MY SON HAD TWO OF YOUR CLASSES D URING LAW SCHOOL, AND I CAN'T WAIT FOR HIM TO WATCH THIS ORAL ARGUMENT.