Letters from NHAJ Members Against HB 1181

From Leslie Johnson,

Sent to all Carroll County Representatives

We have met briefly before at republican events in Carroll County. As a conservative republican and trial attorney, I am writing to ask you to vote ITL on HB 1181.  It will wreak havoc on our justice system.  It would allow Defendants to make late offers of judgment right before trial, which would not allow time to negotiate with lien holders such as Medicare, and health insurance companies. (Sometimes that takes months)  It would allow manipulation of the system by Defendants after their defense attorneys have milked the case for all the attorneys’ fees they can from the Defendant, rather than trying to reach an amicable resolution early in the case.  This will increase the burdens on courts, as there will be a disincentive for Defendants to negotiate and mediate in good faith early in the case. 

Voting for this would mean that injured citizens of New Hampshire will not seek the justice they deserve from wrong-doers as Defendants will be able to blackmail them at the last minute, by giving them lowball offers and making them gamble with their often meager wages and value of their homes, just for seeking justice that they believe they are entitled to (for things such as lost wages, injuries, medical treatment, etc.). 

Passing this would get rid of the long established English Rule that each side pays their own legal fees.  There are already exceptions in certain statutes and case law that allow the Court to award Defendant legal fees if the case was frivolous.  This is not imposed very often, because very few frivolous cases are brought.  The trial lawyers in this state do not have time, nor money to waste, bringing frivolous claims.  We often dissuade people from meritless claims and refuse to represent them.  The system is working as it is, and passing this bill would do harm to our legal system.  We can also expect that litigation over fees after the case is resolved will be expanded, putting an even larger load on our justice system.  This is a bad bill put forth by tort reform proponents. 

Please stand with the average citizens of New Hampshire.  Thank you for your attention to this matter.

From Thomas Cote

Sent to Representative William Hatch, Gorham

Dear Mr. Hatch

As you are aware, the full House will be voting on HB1181 tomorrow.  I am asking you to consider voting the matter inexpedient to legislate.

I have been practicing law over 36 years in Gorham.  Although a general practitioner, I preferred representing plaintiffs in personal injury matters.  I have been fortunate enough to settle most of my cases, thus avoiding my clients the expense, stress and uncertainties of jury trials.  Over the years, changes in the law have increased the efforts required to settle cases.  For instance, I need to involve Medicare and Medicaid prior to settlement to make sure that past benefits and future benefits are recovered by them.  Defendants are better protected should their fault be less than the plaintiff in the aggregate, even if some of the defendants are immune, otherwise the plaintiff's recovery would be reduced or even eliminated.  These are just some of the changes that impacted this area of the law.

As you can see, it is getting very difficult and complicated to settle cases to the satisfaction of all parties.

To require that the loser, however defined, pays for the litigation fees and cost of the winning party will increase the likelihood of post-award litigation over the costs and fees.  It would reward late offers of settlement and not allow for the discussion of a settlement with lien holders such as Medicare.  It would bring us to the English rule of loser pays, thus overturning the American rule which assures both sides have the same access to justice.

A few years ago, I represented a client who was traveling south on 93 in the passing lane, when a young 17 year old man decided to change lanes into her lane.  To avoid a collision, she applied her brakes, sounded her horn and swerved.  Her wheel caught the snow bank and she collided with a tree.   He probably forgot that he was pulling a trailer with a four-wheeler in its bed.  He also had a four wheeler in the back of his small Toyota pickup truck.  An eye witness ahead of my client saw the whole scene unfold to her horror.  The young man testified that he never saw my client.  We proved damages of over $1 million.  After a six-day trial, the jury returned a verdict in favor of the defendant.  My client was crushed by this verdict.  I sincerely believe it was a miscarriage of justice.  Nevertheless, at least my client did not have to pay the insurance company's litigation expenses associated with this case.  Her litigation expenses were steep enough.

From David Buckley

Sent to Represenative David Robbins

This proposed legislation has the backing of the insurance industry and does not benefit the citizens of New Hampshire.  The language itself seems to be professionally drafted, which should raise some questions. 

Who is saying that this is even a problem?  Where is the evidence to support the claim that plaintiffs do not properly value their cases?  Where is the evidence that there is such a waste of judicial resources by “stubborn or foolhardy” plaintiffs that there needs to be a law to save them from themselves? To follow that logic shouldn’t there then be a helmet law? 

Citizens have the constitutional right to fundamental fairness in the judicial process.  Enabling a statute that makes a citizen have to choose to decide to take a settlement offer or run the risk of future penalty for exercising their rights is not indicative of the freedom from governmental interference that the New Hampshire citizenry is founded upon.  Live Free or Die, indeed.

Please vote against this bill.

From Timothy Coughlin (re: both HB 1181 and HB 1178)
Sent to Representative Nancy Stiles


Although we have not met, I am a Republican lawyer in Portsmouth practicing primarily family law.  However, I used to practice more in the personal injury realm, first as an associate doing defense work (i.e. insurance company work) for Devine, Millimet, and later representing the injured when we started this firm here in Portsmouth in 1993.  I am a past President of the NH Association for Justice, formerly the NH Trial Lawyers Association.  More importantly, I am a proud native resident of New Hampshire. 

I wanted to let you know about HB’s 1178 and 1181 which will soon come to the Senate for your vote.  I wanted to advise you that these bills, if passed, would be an assault upon the rights of New Hampshire citizens to seek justice in our highly effective court system, a system which is the envy of other states.  I know this because I went to law school in New York, and practice in Maine and Massachusetts as well.  We have the best Bar and the best Bench in the United States.  The system works.  There are no frivolous law suits or run away verdicts.  Ours is a conservative legal system like most other elements of our society in New Hampshire.  I can assure you that when a plaintiff gets a jury verdict for damages in New Hampshire the amount is both deserved and appropriate.      

These “loser pays” the winner’s legal fees are very dangerous bills reflecting a disturbing digression from what has been our law for over two hundred years. Although it may be just to require an insurance company (or any unreasonable party) to make a reasonable offer before making the injured party roll the dice and bring the case to trial, it makes no sense to penalize the plaintiff should the jury not agree with his or her position. 

Insurance companies (or any other party of large means) can financially absorb making a bad call (win some, lose some).  It is, as seems to be usual unfortunately, the little guy whose right to seek a remedy in court is jeopardized by the potentially significant financial penalty for making a bad prediction about the jury verdict (in reality, a notoriously hard to predict decision). All things considered, I'd urge you to follow the lead of our predecessors on how a legal system should in fairness work and vote against these bills.

In effect, this legislation would severely thwart an injured person, and his lawyer, from bringing a claim against another party viewed to be at fault for his injuries.   The reason we have auto and home and other  insurance is so that the expense associated with the harm suffered by a few is absorbed by many.  People hurt in accidents are many times our most vulnerable citizens, who have no other means to financially address their injuries than to seek relief from the party at fault.  This legislation would allow the insurance companies to make it financially impossible for the harmed to even consider bringing such a claim.  Premiums will come in (and I can assure you they will not decrease) and claims will be stifled.  Who wins?  Insurance companies.  Who loses?  Those who elected you.  Whose side are you on? 

Although society has changed a lot over the last 200 years, the principles of fairness have not.  

I am sincerely asking you to give me a call if you are even considering voting in favor of this destructive and hurtful legislation.

Thank you.