Hey, turns out circuit courts are totally able to judge attorney's fees awards on their own! (Consumer Law Matters)

Who'd have ever guessed that circuit court judges (and appellate judges) might not be hypnotized by the crafty plaintiffs' bar into rubberstamping whatever fee award the crafty plaintiffs' bar lawyers might demand with no justification whatsoever?

Certainly not the Wisconsin legislature, which was more than willing to be bought for a mere $10,000, in exchange for which the (current) Wisconsin government attempted to limit the discretion courts use in awarding consumer lawyers their fees. Wisconsin lawmakers in passing that law were clearly acting in the best interests of corporations who feared the obvious power that plaintiffs' lawyers have over judges; why, plaintiffs lawyers could practically write their own check, the fear went, so we have to limit what those judges will do when put under the seductive spell of consumer litigators!

{Where is that sarcasm emoticon when I need it?}

Anyway, sarcasm aside, a little while back, Wisconsin imposed a presumptive limit that fees should be three times what a party is awarded in actual damages, but it turns out that maybe it was unnecessary to rein in the judiciary because judges actually exercise their discretion when asked to award fees in those cases, as shown by the hot-off-the-presses, pre-limit case of Zimmerman v. Chrysler Group, a "lemon law" fee-shifting case where the parties agreed on a settlement but couldn't come to terms over the amount of fees to be awarded the plaintiffs' lawyers, so the two sides agreed to try the issue of fees before Judge Ramirez in Waukesha County, and the billing statements were put in, and some of the lawyers for each testified, and the Court:

entered a final Order on November 18, 2010, which reflected the court’s oral decision and ordered Chrysler to pay the Zimmermans a total of $23,888.50, which represented payment of 87% of the fees and costs requested for the underlying claims.

That's from the plaintiffs brief on appeal; despite winning $23,000 in fees, the plaintiffs (the Zimmermans) appealed, because the circuit court awarded them nothing for litigating how much in fees they should earn.

That's what the case was really about, here: Not whether the plaintiff's lawyers should get fees for winning (?) their case via settlement, but whether the plaintiff's lawyers should get fees for litigating the issue of how much they should get in fees.

I make that point because because it points out both the completely unnecessary nature of the presumptive cap on fees and the ridiculousness of saying that it is all one side or the other which is driving up the cost of litigation, and because this case points to an unintended consequence (there are always unintended consequences!) of the law.

To listen to the Bought-And-Paid-For (for just $10,000!) Republican legislature, plaintiff's lawyers are slime who drive up costs for reg'lar folks by outrageous demands for fees incurred in litigating cases allowed by law. To listen to the plaintiff's lawyers, there is no amount of fees too outrageous to qualify as being awarded.

In other words: settle down, everybody, the judges had it well in hand before the law went and got all worked up over this.

So this was a fight about fees incurred fighting to be awarded fees incurred. A fight that need not have happened had one side or the other been willing to let one side or the other entirely dictate what it should be awarded.

Keep that in mind. Because the harm the new law was intended to fight -- plaintiff's lawyers running up fees and then some how hypnotizing judges into just going ahead and awarding those, to the detriment of reg'lar folks ("reg'lar folks" like "massive car dealers who do repairs without authorization") wasn't invoked at all in this case. The fees awarded by Judge Ramirez in fact seem to be lower than the presumptive award that the law would not require.

There's an unintended consequence of that law: It might require higher fees than the defendnats want to pay. Here's why: the records in the case suggest that the Zimmermans were awarded "$10,000 and the value of the motor vehicle." They don't say how much the vehicle was worth, but even if it was worth nothing, the Zimmermans still got $10,000. So under the new law in Wisconsin, the circuit court is required to presume that three times that amount is a reasonable award.

So the circuit court under the new law would be required to presume that $30,000 is a reasonable award - - and the defendants would have had to prove it should be less.

Here, Judge Ramirez in Waukesha County awarded $23,000 or so in fees -- less than three times the presumptive limit imposed by the new law that a disgruntled car dealer bought himself. So under the new law, disgruntled car dealers who don't want to follow the law might find themselves facing a smart guy like me who will say to judges "You have to presume that three times what my client was awarded is reasonable, and award that."

Case in point: this past summer, I got an award of $18,000 in a consumer case. My total fees were $34,000 (about even to what the other side spent.) Under the new law, the presumed reasonable fees would have been $54,000.

Anyway, that's the unintended consequence of the new law: Defendants might end up paying more, not less.

But defendants don't want to pay anything. In the lemon law case here, Zimmerman, the defense, having settled for $10,000+a car, then offered $8,000 for attorney's fees.

Says the plaintiff's appellate brief:

Chrysler offered $8,000 for all fees and costs for litigating the underlying matter. (R. 85: 4). The trial court rejected that suggestion when it awarded $23,888.50, representing 87% of the $27,500 in fees and costs requested by the Zimmermans on the underlying claims and almost three times the amount Chrysler offered.

Now, consider this:

The parties settled, and then only had to discuss what would be fair compensation for the Zimmermans' lawyers (Lemon Law cases allow fee shifting, of course.)

The Zimmermans were seeking $27,500.

Chrysler offered $8,000.

The circuit court decided that $23,888.50 was a fair amount to be awarded -- giving the Zimmermans nearly three times Chrysler's highest settlement offer.

Judge Ramirez sits in Waukesha County, which is not known for being liberal, lefty, or consumer-friendly. (With that, I must add that I've tried cases before Judge Ramirez and found him to be fair to all sides.) Judge Ramirez thought $23,000, or three times what Chrysler wanted to pay, was fair. The Zimmermans' brief notes that he only cut out about 15 hours of time as "duplicative" or "unnecessary," out of 89 hours total, pre-settlement -- so Judge Ramirez, who's seen many a case, felt that 74 hours of time spent working towards a settlement was reasonable.

So in the first instance, Judge Ramirez, who knows the lawyers and knows the case and knows lots of lawyers and has seen lots of cases, thought that 2.3 times the amount awarded (or less) was reasonable. But Judge Ramirez also of necessity thought that Chysler was being unreasonable: He awarded nearly 300% of what Chrysler thought was fair.

With that, though, Judge Ramirez made a mis-step: he didn't award anything for litigating the issue of fees.

That's what led to the Zimmerman's appeal: not just because (as noted by the Zimmermans' brief) the award of $23,000 or so reduced the effective award to just 32% of the total the Zimmermans' lawyers wanted, but because Judge Ramirez, having conceded that $23,000 was reasonable, failed to do anything about the fact that Chrysler had forced this fight over fees.

As the plaintiff's brief noted:

Here is the problem in focus: the attorney time expended to prove up the fees and costs to be awarded the Zimmermans greatly exceeded the time of the original fees and costs claim. It is inequitable for Chrysler to subject counsel for the Zimmermans to a year of litigation over the fees and costs for the underlying claim and then have the trial court award not one cent for the attorneys time in proving up those fees. See City of Riverside v. Rivera, 477 U.S. 561, 581, 106 S.Ct. 2686, 2697, n. 11 (1986), a defendant “cannot litigate tenaciously and then complain about the time necessarily spent by the plaintiff in response” under a feeshifting statute.

I like THAT! I've got to remember that quote.

So that alone is fascinating: Chrysler said "We'll give you $8,000," then lost -- by 300% -- and yet prevailed, in effect, because they were able to force the plaintiff to litigate the issue of fees... for free.

What's fascinating, also, is the look at what passed for litigation by Chrysler over the fees: According to the Zimmermans' brief, Chrysler subpoenaed another Lemon Law attorney as an (uncompensated?) expert, then attempted to impeach him, then put its own assistants and lawyer on the stand -- having the latter refuse to testify what she had been paid. That doesn't seem to be the way to prove whether fees are reasonable or not, but it does seem to be a lengthy, time-consuming way to litigate the issue of fees, which should then allow the plaintiff's lawyers something for their time spent getting paid.

But Judge Ramirez saw things differently than the Zimmermans' lawyer, ruling:

Simply put, I had a credibility problem with requests made by attorneys’ fees by plaintiffs’ counsel especially after resolution of the case. Requests for attorneys’ fees made on or after that date appear not to reflect so much efforts to rigorously represent the Zimmermans as much as efforts to geometrically compound attorneys’ fees.”

(Emphasis added.)

Fair enough: If the plaintiff's response really was akin to "you're going to make us fight to get paid? Fine, we'll amplify our requests and hope that whatever percentage we get covers our true costs," then Judge Ramirez can't be faulted for feeling that way overall, and the Court of Appeals found no real errors with Judge Ramirez's ruling, overall-- rejecting the argument that circuit courts must always award fees for litigating the award of fees:

To the extent Zimmerman suggests that the parties' stipulation created an explicit agreement that required the circuit court to award post-settlement fees, we disagree. The parties' stipulation and the relevant statutes authorize only reasonable fees.It necessarily follows that attorney fees for litigating the amount of attorney fees must also be reasonable. No part of the parties' stipulation in the present case, or the relevant fee-shifting statutes, required the court to award a certain amount of fees for litigating fees. Under appropriate facts, a proper lodestar analysis could result in an award of zero.

That said, though, the Court said the circuit court should have awarded something:

Accordingly, we conclude that the circuit court erroneously exercised its discretion. We reverse and remand for a determination of reasonable attorney fees incurred litigating attorney fees. As the ones seeking to be paid, Zimmerman's attorneys have the burden of demonstrating the reasonableness of their fees. Kolupar, 275 Wis. 2d 1, ¶34. As the circuit court properly observed, reasonableness is often a more difficult conclusion to reach when the amount requested for litigating the fees is disproportionate to the work on the merits of the case. The court noted, "it would not be reasonable for an attorney to charge a client $80,000 in fees to collect $10,000 and the value of the motor vehicle. It is not reasonable, and again, it boggles the mind."

Nevertheless, it was erroneous under the facts of this case for the court to deny any award of attorney fees after resolution of the underlying claim.

So here's where this leaves litigants: Probably nowhere, since the new law went into effect and this case was decided under the old law. The utility of Zimmerman is primarily that circuit courts will be required to award something for litigating the issue of fees, and also that under Zimmerman, a smart lawyer might be able to say "Well, the new law applies only to fees incurred in getting the settlement or award, not to fees incurred in getting the fees," which is a parsing that I bet the legislature didn't think of. The Court of Appeals, remember, said:

The parties' stipulation and the relevant statutes authorize only reasonable fees.It necessarily follows that attorney fees for litigating the amount of attorney fees must also be reasonable.

So, are "fees awarded" under the new law "all fees awarded," or are "fees awarded" under the new law "fees awarded for reaching a settlement or verdict," leaving circuit courts free to award more than three times the compensatory damages for litigation involving an award of fees?

How courts deal with that question is going to cost a lot of people a lot of money, I bet, at least until some new car dealer decides he doesn't want to follow the law and gets the legislature to grant him immunity for illegal practices.

How’s that “health care” “system” working out for you?

This is a Sponsored post written by me on behalf of Walgreens for SocialSpark. All opinions are 100% mine.

Suppose there was a company out there that provided no real services but did manage to grow its profits at two times the rate of other industry companies.  And suppose that company just ended a contract relationship that benefitted many regular (e.g., you) people despite the fact that it achieved no cost savings from ending that contract.

And suppose that by ending that contract, that company ended up making it harder and more costly for you to get your prescription medications?

You’d hate that company, wouldn’t you? I imagine that’s how many people will be feeling about “Express Scripts,” a middleman company that just ended its contracts with Walgreen’s drugstores in the latest round of goings-on between  Walgreens and Express Script. “Express Scripts,” as I understand it, contracted with health insurance plans and then contracted with drugstores, so that when members went to the drug store, they wouldn’t pay the drug store but would pay Express Scripts.  Express Scripts and Walgreen’s were recently negotiating a new contract, and Walgreen’s was offering to keep its rates of payment the same, but Express Scripts wanted them to reduce their rates below industry standard, and Express Scripts wanted to be able to define for itself what was or was not a “generic” vs. “brand name” drug.

The end result: You get hurt, and our military gets hurt. 

Oh, that latter one? Express Scripts has a client “Tricare,” which provides health insurance to military families. Walgreen’s offered to have its prices match or beat the prices of any other drug store, so that military families were guaranteed the lowest prices for prescriptions. Express Scripts said no.

So a company which has seen its profits increase at double the industry rate just decided that’s not enough and ended up making families travel farther to get their prescriptions, or pay more to get them.  Seem fair?

I’m on Walgreen’s side in this one. People shouldn’t have to pay too much for prescriptions, and local drugstores provide familiarity so that the pharmacist can do more than simply dispense drugs anonymously, like Express Scripts wants.  Now customers have to find new places to get their medications, and the people they’re dealing with don’t know them.  

Walgreen’s is helping out.  They’re giving a break on enrollment in their Walgreens Prescription Savings Club, so for January you can join for just $10 (or $5 a person) to get discounts on your prescriptions:

http://www.walgreens.com/pharmacy/psc/psc_overview_page.jsp

And they still have their usual savings on 8,000 different brand-name medications, low prices on generics, and discounts on flu shots, pet scripts, nebulizers and other things. Plus, if you join that club, you’ll get bonuses for using other Walgreen’s services, like photofinishing, so you can continue to save on medications and still do one-stop shopping at your local pharmacy.

It’s time to pick sides in this fight. With all the many troubles in the health care industry, we didn’t need Express Scripts making things worse.  Stick up for Walgreen’s: Like Walgreens on Facebook and follow  Walgreens on Twitter (@Walgreens), and help make things better.

Ernie's not human? Does BERT know? (Interesting Judicial Comments)

As I slogged through a summary judgment brief involving fraudulent transfers of land, I took a break to read an opinion in a case I'd give my eye teeth to work on, if I knew what eye teeth were.

The case is the innocuously-titled "Toy Biz, Inc. v. US," and it's found at 248 F. Supp. 1234. It's a 2003 case in which a federal court was asked to decide, in four opinions, whether Wolverine and the other X-men are human.

Really.

The case involved a tariff classification that saw Customs trying to classify action figures being imported as "dolls," rather than "other toys," the difference being a whopping amount of tax. Dolls, under the relevant law, are toys that resemble human beings, which sounds like it might apply to an action figure of, say, Nightcrawler, but there's an exception to dolls under other toys, which removes from the dolls classification

[t]oys representing animals or non-human creatures even if possessing predominantly human physical characteristics (e.g.angels, robots, devils, monsters)

This is the stuff our government is up to when we're not watching it, you know: classifying monsters and dolls.

Customs argued that merely adding a claw or a robotic arm "fall[s] far short of transforming [these figures] into something other than the human beings which they represent," but the Court noted that first, Customs ought to have read more comic books:

Second, these Marvel characters are known in popular culture as "mutants." That fact further informs their classification. ... (Customs recognizing that some knowledge from popular culture is necessary to identify certain figures, such as angels, devils, monsters, as "non-human"). They are more than (or different than) humans. These fabulous characters use their extraordinary and unnatural physical and psychic powers on the side of either good or evil. The figures' shapes and features, as well as their costumes and accessories, are designed to communicate such powers. For example, "Storm" (a tall and thin figure with white mane-like hair and dark skin)...has a lightening bolt as an accessory, reflecting the character's power to summon storms at will. "Rictor" ...has a human appearance but comes with a built-in wheel in the back which when turned makes the figure vibrate and thus is designed to simulate Rictor's "power to generate earthquake-like vibrations." "Pyro" ...has a costume that, with two long hoses attached to it, is designed to aid the character's "mutant ability to control and shape flames.

So maybe a claw wouldn't keep you out of a Humans-Only club, but if you can control the weather or have a wheel in your back, we don't want your type here, buddy.

But while that is easy enough to decide: white-haired women with lighting bolts



are clearly not human, right? (Hot, but not human), what's harder to decide is whether a person who was a human but then got transformed by cosmic rays into, say, a blog of metal, is no longer human:

The court next turns to the more difficult classification of the action figures referred to as "Fantastic Four." The assortment... of the "Fantastic Four" action figures "Black Bolt," "Mole Man," "Terrax," "Mr. Fantastic," and "Silver Surfer." ...On their packaging, the characters are not referred to as "mutants" or are not known in popular culture as "mutants." They are, however, known to have extraordinary, "super-human" abilities.

"Mr. Fantastic" is the "leader of the superhuman quartet known as the Fantastic Four," .... The character can "stretch himself into almost any shape." Accordingly, the "Mr. Fantastic" figure has stretchable arms made of soft plastic.

"Black Bolt," despite resembling a human, has wings attached to its arms and is described as belonging to "Inhumans."

"Terrax" has a grey skin color signifying that the character's body is made of a "living stone-like substance."

"Silver Surfer," although once human, has been transformed by "the power cosmic," and the figure's entire body along with its surfboard is consequently metallic.

Accordingly, the court finds that the four "Fantastic Four" figures considered above do not represent human beings and are thus not classifiable as "dolls"...

The last figure in this series is truly a close call. "Mole Man" is described as both being human and having an "odd appearance,... extraordinary intelligence, cunning, and fighting prowess with his staff." The figure is stout and thick, has exaggerated troll-like features, wears a green outfit and cape, and comes with a staff and a small figure of a "humanoid" creature (yellow in skin with protruding white eyes) symbolizing the fact that the character uses small humanoid creatures to "do his bidding." Mole Man lives "within the Earth," and consistent with the character's subterranean nature, the figure has unusually pale skin and wears blue glasses. The character also "controls a legion of giant monsters."

Given the entire context of the figure's appearance and fantastic story, and the fact that it is part of a series where the characters are described as "super-human," the court finds that "Mole Man" is also not properly classifiable as a "doll" under the HTSUS and instead should be classified as an "other toy".

It didn't end there; the Court decided that even Spider-Man villains Kingpin and Craven weren't human,

What's really fascinating is about this case are two minor (?) notes, the first showing that along the way in the litigation, Marvel decided to agree that some humans are humans, and also, that the Court got to play with the action figures in question. From footnote 10:

On October 18, 2000, the parties entered into a Stipulation identifying all items at issue in this action. Later, with both parties' consent, Plaintiff withdrew from the case the items "Daredevil," "Invisible Woman," "Punisher," "U.S. Agent," and "Peter Parker," and Defendant agreed to classify the items "Beast," "Bonebreaker," "Cameron Hodge," "Robot Wolverine," and "Vulture" as "other toys," ...Moreover, the court has before it sufficient samples and pictures of the items in question which enable the rendition of a dispositive decision.

(Emphasis added.) And the other little-noted extra part is that in deciding that a guy who had four metallic robot arms grafted onto his body by a scientific accident is no longer human, the Court relied on an earlier decision finding that Ernie and Bert might not just be secretly gay married, but gay interspecies married, citing as follows:

Cf. Minnetonka Brands, Inc. v. United States, 24 CIT ___, ___, 110 F.Supp.2d 1020, 1029 n. 5 (2000) (finding that the containers in the shape of the well-recognized children's character "Ernie" is properly classifiable under HTSUS 9503.49.00 rather than as plastic bottles because "Ernie's cartoon-like figure, orange complexion, red button nose, and oval head [is] a sufficient basis for finding him a `nonhuman creature'").

That had to come as a surprise to Ernie, since Muppets don't think of themselves as Muppets.

But can they saw a commercial loan in half and put it back together? (Interesting Judicial Comments)

"Washington's other case citations, also intended to draw a fiduciary rabbit from a commercial loan agreement hat, are similarly inapposite."

-- Washington Steel Corp. v. TW Corp., 602 F.2d 594 (C.A.3 (Pa.), 1979), considering (and rejecting) a bank's duty to refrain from lending money to one client to take over another client.

Mortgage bankers have to break your leg before you can sue them? (Mortgage Banking.)

More alarming, to lawyers who understand how things really work, than the recent fee-limitation imposed by Republicans who were bought off by a disgruntled car dealer-- John Lynch Chevrolet-Pontiac -- who wanted to be free to illegally overcharge his customers without fear of reprisal is the threat that courts are going to undermine the right to sue period, without fretting over how much attorney's charge.

I'm not as concerned about the fee shifting as many lawyers are. In one recent fee-shifting case, the fees I sought were just over 2 times the damages our clients were awarded, and were far less than the fees that were charged by the defendants. In another case -- the one I mentioned here -- my fees through trial were only 1/5 of the fees charged by just one defendant's team of lawyers, and if lawyers who charge $80,000 to get a case partway to trial want to gripe that I charged one-fifth of that to completely try the case, they're free to make that argument. I look forward to them explaining to their client how I was able to win charging 20% of what they charged.

What I don't look forward to is courts making rulings that limit a person's right to enforce the law, especially when the law is set up to be enforced by private people.

There's been a recent spate of laws not intended to be enforced coming out of Wisconsin's Capitol -- Gov. Scott "Patsy" Walker's First-Amendment-Abridging Pay-Up-Front rules among them -- and that kind of thinking ("let's have a law but not really enforce it") might be a hallmark of the type of lawyering you get when your top state lawyer ran for office on an anti-terrorism platform. But laws are meant to be enforced, and laws like Wisconsin's mortgage banking regulations are in particular meant to be enforced by "private attorneys general," i.e., you and me.

A private attorney general law is one which lets people sue for statutory violations and win statutory damages even if they're not otherwise harmed. A classic example is the FDCPA, which awards up to $1,000 in statutory damages even if no actual damages are involved -- letting debtors hire lawyers to sue to enforce even hypertechnical provisions of that law.

Such laws are set up to encourage people to enforce them when enforcement actions would be numerous and over small or nonexistent amounts of damages: The state has little incentive or resources to sue every landlord over every withheld security deposit, so the fee-shifting and statutory damage provisions are meant to create a sort of citizen-law-enforcement setup.

Statutory damages are a key provision of such laws: by awarding statutory damages, the laws recognize hard-to-quantify technical injuries and provide a penalty simply for ignoring the law.

Which brings us to Avudria v. McGlone Mortgage Company, 2010 AP 2032 (Unpublished, Wis. Ct. App. 5/17/11.)

In Avudria, an opportunistic lawyer or plaintiff tried to make a quick buck and in doing so, might have created a precedent that will make it more difficult to enforce laws like the mortgage banker regulations. The plaintiff sued McGlone, claiming (correctly) that McGlone had used forms that disclosed what the plaintiff was paying, but which were not the approved DFI forms.

Avudria, the plaintiff, had not been misinformed by any of the forms, which were standard-issue industry forms, but which were not the ones required by DFI to be used in Wisconsin. In fact, Avudria admitted that he was pleased with what McGlone had done for him.

But he sued anyway.

The Court of Appeals looked at the case and decided that Avudria had no claim, because he wasn't aggrieved.

The statute requires that someone be aggrieved before they can sue, and the Court of Appeals glommed onto that:

The question before this court is whether Avudria is a “person who is aggrieved” under Wis. Stat. § 224.80(2), such that he can pursue a private cause of action against McGlone for its failure to use the forms required by the DFI. In order to answer the question, we must turn to the statute itself.

...

Based upon the plain language of Wis. Stat. § 224.80(2), we determine that a “person who is aggrieved” is one who suffered at least some actual injury or damage.

That's all well and good, except that the statute sets up two different ways of measuring a penalty: first, a doubling of the loan origination fee, and second, an award of actual damages, whichever is larger:

Section 224.80
(1)  Penalties. A person who violates any provision of this subchapter or any rule promulgated under this subchapter may be fined not more than $25,000 or imprisoned for not more than 9 months or both. The district attorney of the county where the violation occurs shall enforce the penalty under this subsection on behalf of the state.

(2) Private cause of action. A person who is aggrieved by an act which is committed by a mortgage banker, mortgage loan originator, or mortgage broker in violation of any provision of this subchapter or of any rule promulgated under this subchapter may recover all of the following in a private action: (a) An amount equal to the greater of the following:
1. Twice the amount of the cost of loan origination connected with the transaction, except that the liability under this subdivision may not be less than $100 nor greater than $25,000 for each violation. 2. The actual damages, including any incidental and consequential damages, which the person sustained because of the violation.

That structure suggests that "aggrieved" doesn't mean "suffered actual injury or damage" at all. A fair reading of the statute says that an aggrieved person may be one who suffered no actual damages, in which case an aggrieved person would be awarded the statutory damages.

It's not even hard to come up with an example that fits such a category. Under the law, a mortgage broker may not:

"Make, in any manner, any materially false or deceptive statement or representation, including engaging in bait and switch advertising or falsely representing residential mortgage loan rates, points, or other financing terms or conditions."

Now let's suppose that my client in my recent trial wants to go refinance, and before working with Mortgage Brokers, Inc., says "You don't employ any of these people that I sued," because she doesn't want to work with them. And Mortgage Brokers, Inc. lies and says "No, we don't," and then simply makes sure that all the defendants our client sued don't work on her file.

Our client then gets the loan she wants, but finds out that she was lied to and all these people she sued actually do work there.

Has she suffered actual damages? No -- discounting such potentials as "fear that the former defendants are badmouthing her" or "worry that because those people work there she actually didn't get a good loan" -- but does that mean the mortgage broker should go unpunished?

Should a mortgage broker be allowed, in short, to lie in order to get a client, even if they then do a good job?

Is that what was intended by the legislature when they put in that double-loan-origination fee? Or were they intending to punish brokers who break the law by taking away the compensation (double the compensation) for lawbreaking, and empowering citizens to enforce that law?

In every state in the country, you can be penalized for speeding even if you didn't hurt anyone. If I drive down a deserted highway in broad daylight on dry roads with open views -- in short, causing no danger-- and I'm going only 1 mile per hour over the speed limit, I can still be ticketed and fined, because breaking the law can be punished even if nobody was hurt.

Unless the law is one like Wisconsin's mortgage banker law, which, thanks to Avudria's opportunism and the Wisconsin Court of Appeals' laziness, just got less enforceable than a speed limit.

Smart phones make you a better person, and that's not even counting how good you'll get at "Plants vs. Zombies."

This is a Sponsored post written by me on behalf of Sprint for SocialSpark. All opinions are 100% mine.

For the next 24 hours or so, Sprint is offering you a Android™ powered EVO 4G devices   free of charge: No cost for the phone, no cost for the activation, no cost for the shipping.

Maybe you have a smartphone, maybe you don’t.  Either way, you need a BETTER smart phone.  The better your phone is, the better off you are, especially at work. 

Most people don’t give much thought to how a smartphone can help them at work.  I’m not most people.  I have actually used my smart phone on numerous occasions to help my practice, and so it’s making money for ME.  Consider all these ways a smart phone helped me:

Last year, on the way to a trial, I got stuck in traffic on I-94.  Using my smart phone, I was able to check the traffic cams to determine that the jam went on for five miles at least.  Using my smart phone, I was able to then use the navigator to find an alternate, back-road way to the trial, arriving 10 minutes early and being, therefore, relaxed when opposing counsel showed up late.  He had been sitting in traffic.

Yesterday, in a meeting, we got into a debate about whether “offers of compromise” – settlement offers to you – were inadmissible for more than one reason.  While an associate ran to get a statute book, I simply clicked a few buttons and found the statutes online, then checked them out.

Last week, while I waited for a seminar to begin, I used my phone’s email access to debate, vote on, and ultimately get approved, a budget for the 2012 fiscal year for a charity whose board I sit on.

And yesterday, I was able to take a bunch of pictures of my kids and post them to Twitter.

Okay, that last one doesn’t help my practice, but the pictures were cute ones.

You get the point: A smart phone is a smart investment, and Sprint’s offer – which is only good for about another day – makes it a no-brainer to get in on this deal.  For FREE, you can get access to EVERYTHING YOU NEED to be more productive, more on time, and more informed.

Plus, you can follow me on Twitter and get instant access to pictures of my kids.  I’m telling you, they’re cute.

Wisconsin proclaimed "North Korea", full employment for courts, lawyers to begin soon. (Consumer Matters)

Last week, Governor-for-Now Scott ("Patsy") Walker signed into law the new bill that limits attorney's fees to a presumptive cap of 3 times the actual damages awarded to the claimant.

That bill did not sit well with the lawyer whose case spurred the Republican law-passing machine into action after the donor/defendant bought himself a law that will make it easier for car dealers to rip off consumers: Vince Megna, the lawyer who represented the plaintiff in the suit Kaskin v. John Lynch -- the case that led John Lynch Chevrolet to buy off some Republican legislators for the low, low price of just $10,000 -- reportedly issued a statement that he would never represent a Republican again and calling Wisconsin "North Korea."

One thing that's been largely overlooked in the debate -- not that there was a debate; for $10,000, you can buy enough Republicans to avoid debate -- is the sheer number of statutes and regulations affected by the new law. The State Bar of Wisconsin (which opposed the bill) estimated that as many as 280 different laws are affected.

The text of the bill (insofar as I could see it; the full text isn't currently available on the Legislative Reference Bureau's site, but I didn't hear that Governor For Now vetoed any portion of the bill) says that the cap aplies to "any action involving the award of attorney fees that are not governed by s. 814.04 (1) or involving a dispute over the reasonableness of attorney fees," which is, as the Bar noted, a pretty broad swath. Section 814.04 is the general costs statute that lets courts tax a nominal amount of fees based on the dollar amount of the case, which means that this law presumably applies to every single action in which one side or the other gets attorney's fees (or could.)

What remains to be seen, notwithstanding Mr. Megna's declaration of where we now live, is how the Courts will interpret this. With the cap being only a presumptive cap, what the bill has actually created is not a hard-and-fast bar to a claim of greater fees, but instead more litigation, as lawyers (like me) who represent consumers will face substantial litigation -- in one recent case I was outspent by 5-to-1 (or more) by the lenders involved -- and substantial costs, and, if the defendants take the stance that they won't pay our full fees, we'll have no choice but to litigate those claims and see if the judge will allow greater costs and fees.

Consider what happened under a similar law. The Fair Debt Collection Practices Act (FDCPA) has a provision that allows an award of "reasonable" fees to successful litigants at 15 U.S.C. 1692k(a)(3). A nationwide search for cases mentioning that specific provision turned up 287 reported cases in the last 33 years, or about 10 cases per year. The litigation over attorney's fees got so complicated that at one point, the Second Circuit simplified things this way:

In Arbor Hill Concerned Citizens Neighborhood Ass'n v. County of Albany, 493 F.3d 110 (2d Cir. 2007), amended on other grounds by 522 F.3d 182 (2d Cir. 2008)], we undertook to simplify the complexities surrounding attorney's fees awards that had accumulated over time under the traditional "lodestar" approach to attorney's fees (the product of the attorney's usual hourly rate and the number of hours worked, which could then be adjusted by the court to set "the reasonable fee"), and the separate "Johnson" approach (a one-step inquiry that considered twelve specified factors to establish a reasonable fee). 493 F.3d at 114. Relying on the substance of both approaches, we set forth a standard that we termed the "presumptively reasonable fee." Id. at 118. We directed district courts, in calculating the presumptively reasonable fee, "to bear in mind all of the case-specific variables that we and other courts have identified as relevant to the reasonableness of attorney's fees in setting a reasonable hourly rate." Id. at 117 (emphasis in original). The presumptively reasonable fee boils down to "what a reasonable, paying client would be willing to pay," given that such a party wishes "to spend the minimum necessary to litigate the case effectively." Id. at 112, 118.

That is, the Court took two existing standards, melded them together into a third standard altogether, then directed district courts to use this new standard but to keep in mind "all of the case-specific variables" while also figuring out "what a reasonable, paying client would be willing to pay," which in turn suggests that the actual client (many of my clients pay by the hour) is not a reasonable client, and all the while the judge is to be second-guessing what the minimum necessary litigation is to "litigate the case effectively."

Seems simple enough! I'll plan on being in my office Saturdays as well as Sundays, now.