Wisconsin Jury Issues $5.73 Million Verdict Against Gun Store Which Illegally Sold Firearm Used To Shoot Two Police Officers

In what is likely the first verdict of its kind since federal laws shielding gun stores from being sued were enacted, a Wisconsin jury has held that a gun store must pay $5.73 million to two police officers who were shot by a gun the store sold illegally.

The civil lawsuit against the gun store tested the limits of liability for gun stores after federal laws were changed in 2005 preventing most lawsuits against  guns sellers.  While most lawsuits  were prevented, the law did allow some lawsuits to continue against storeowners,  including  situations  in which the store illegally sold firearms which were later used to hurt others.

In this case, the shooting victims  who sued the gun store were two police officers, both of whom were shot multiple times.handgun

Federal law requires the purchaser of a firearm to complete a form saying whether they is in fact the true purchaser or whether they were buying it for someone else.   In this case, the real buyer of the gun was 18-year-old Julius Burton, who was too young to legally purchase a gun.  So Burton went into the gun store with an older friend, Jacob Collins, to have Collins act as if Collins were buying the gun, when the real purchaser was Burton.

Store surveillance video used during the trial  showed the 18-year-old pointing his finger into the gun case to show Collins which gun to buy.  The  injured police officers claimed that Collins filled out the paperwork and correctly checked the box saying “No” in response to the question whether he was the actual purchaser of the gun, and that Collins changed his answer to  falsely state “Yes”  after being told to do so by an employee of the gun store.

The attorney for the gun store has promised to appeal the decision, contending that the law in fact does shield the gun store in this case, and that the police officers claims should have been thrown out without a trial.

Here’s an article from the Washington Post describing the situation in more detail:

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The multimillion dollar Wisconsin gun store verdict that could reverberate in the gun debate

Washington Post article

October 14, 2015 at 5:20 PM

A Milwaukee state court jury ordered Badger Guns, one of the country’s most prominent firearm retailers, to pay $5.73 million after the suburban West Milwaukee store was found liable for negligence Tuesday in the 2009 shooting of Bryan Norberg and Graham Kunisch, two local law enforcement officers.

The landmark case, which held firearm retailers responsible for disregarding the potential harm of their sales, is only the second of its kind nationwide — and the first to rule against the gun store.

(The other case, concluded early this summer, exonerated an Alaskan gun store of wrongdoing.)

“I didn’t want to send a message around the country,” Dunphy told reporters after the verdict was handed down. “What I wanted to do was represent my two clients, two Milwaukee police officers.”

He added, “If some gun dealers around the country realize that they may have their feet held to the fire because of the penal damage award here, then that’s a bonus.”

The defense attorney, James Vogts, told the Milwaukee Journal Sentinel that he intends to appeal. He argued at trial that Badger Guns owner, Adam Allan, couldn’t be held financially responsible for crimes connected to a weapon sold at the store, the AP reports.

A federal law passed in 2005 granted blanket civil immunity to gun manufacturers and dealers, but with several exceptions. Among these is “negligent entrustment” of a buyer with a firearm, for which the jury found Badger Guns liable.

The case against the store — formerly Badger Outdoors, now Brew City Shooter Supply — began with a problematic sale, the suit argued.

In May of 2009, Jacob Collins, a “straw purchaser,” arrived in Badger Guns with 18-year-old Julius Burton. Surveillance footage from inside the store shows Burton gesturing to his gun of choice: a Taurus PT140 Pro .40 caliber handgun.

“That’s the one I want,” he told Collins, an exchange the defendants said had not been seen by the store clerk who handled Collins’s purchase.

Before making the purchase, Collins was asked to fill out a Firearms Transaction Form, on which he initially checked “no” to being the actual buyer/transferee of the gun, the suit alleged. But on the counsel of Donald Flora, the store clerk, he changed his response to “yes,” the complaint alleged.

Two days later, Collins and Burton returned to the store to pick up the gun and some ammunition. Burton paid Collins, and they parted ways.

In this Oct. 5, 2015 photo, Milwaukee Police Officer Bryan Norberg describes being shot while testifying in court during the Badger Guns trial in Milwaukee. (Mike De Sisti/Milwaukee Journal-Sentinel via AP)

The following month, Norberg and Kunisch were on duty inside a squad car when they saw Burton riding his bicycle on the sidewalk. The officers directed Burton to move, as riding on the sidewalk goes against a Milwaukee ordinance. The 18-year-old ignored them and continued cycling.

The officers exited their car and started pursuing Burton, attempting to talk to him. He started flailing his arms, trying to flee and fighting aggressively, according to the complaint.

Then Burton pulled out a gun and started shooting. Both officers were hit, with Kunisch sustaining several severe injuries and Norberg wounded in the face.

Seven .40 caliber casings later, Burton fled, but he was found shortly afterwards in a basement. There, he had with him ten unfitted cartridges of .40GFL rounds, one loose .40GFL bullet and the Taurus PT140 Pro.

Though Burton was charged and later sent to jail, where he still remains, another wrongdoing haunted the officers and their families: At age 18, Burton couldn’t legally purchase a handgun by himself. Someone had to help him.

With their troubling businesses practices, the jury concluded, Badger Guns provided Burton with the opportunity to obtain a gun through the purchase by Collins.

In his testimony last week, the shooter himself described the store as a go-to place, the Milwaukee Journal Sentinel reports.

“Everyone knew about it, Badgers,” Burton said. “That is where a lot of people go, so I was like, I’ll go there.”

“There” was the source of more than 500 firearms found at crime scenes, authorities said, according to the AP. A charging document for an unrelated 2005 case called it the “No. 1 crime gun dealer in America.”

Badger Outdoors changed its name and transferred ownership to Badger Guns in 2007, allegedly to avoid having its license revoked by the Bureau of Alcohol, Tobacco, Firearms and Explosives, the Milwaukee Journal Sentinel found. Through the name changes and the changes in ownership, the store has remained in the hands of the Allan family, even in its current iteration as Brew City Shooter Supply.

Badger Outdoors was owned by Walter Allan, the father of Badger Guns owner Adam Allan. In 2012, Michael Allan, Adam’s brother, took ownership and changed the name to Brew City Shooter Supply.

The store’s questionable practices helped sway jurors.

“A responsible business owner would do more and everyone agreed on that from the start,” jury foreperson Brett Heaton Juarez said. “Gun dealers have to do more than what we saw in this instance.”

Supreme Court Term Begins Tomorrow

The United States Supreme Court starts its new nine-month term tomorrow.  Traditionally, the Court’s year begins on the first Monday in October.

There are a wide range of important cases before the Court this year. The Court hears argument and decides cases periodically throughout the term, which ends on June 30.  Historically, decisions in the difficult cases typically take longer, and those decisions are usually released later in the year, in May or June.

Here are some of the issues the court will likely address this year:

  • Rights of public employees to unionize and whether federal law prohibits state limitations on public employee union rights;
  • Affirmative action in higher education;
  • The first major abortion case in eight years;
  • Cases on the issue of whether the Affordable Care Act’s requiring employers to purchase health insurance policies which include contraception coverage violate the employer’s religious liberty rights;
  • Three cases concerning class acthetions, which could make it harder for consumers to file claims as a group; and
  • Renewed challenges on the death penalty itself, as well as how it is carried out.

The upcoming presidential election is likely to significantly affect the ideological makeup of the Supreme Court.  There are currently 5 Justices who are widely viewed as being conservative and 4 Justices who are widely viewed as being liberal.  When the new president is inaugurated in January 2017, four of the nine Justices will likely be nearing retirement.  Justice Ruth Bader Ginsburg will be 83, Justice Anthony Scalia and Justice Anthony Kennedy will both be 80 years old, and Justice Stephen Breyer will be 78.

In order to shield the Justices from political influence, the United States Constitution specifies that all Federal judges are appointed for life.   Because of the  significant chance of several  vacancies on the Court during the next President’s term, the incoming president will likely appoint Justices whose decisions will affect the country for many years after that President’s time in the White House has ended.

Museum Opened to Show How Lawsuits Have Made Us All Safer

To show concrete examples of how greatly personal injury lawsuits have helped create a safer society here in the United States, a museum was recently opened with displays showing all the types of products which have been improved and made more safe because of lawsuits.

A few examples of how lawsuits have made us all safer include:

  1. automobile gas tanks (Ford Pinto);
  2. automobile airbags;
  3. asbestos products;
  4. automobile rollover protection;
  5. flammability protection for children’s clothing;
  6. seatbelts;
  7. power window switches;
  8. vehicle seat backs;
  9. laminated glass in automobiles;
  10. Tires (Firestone);
  11. Children’s toys (choking hazards);
  12. IUD’s (Dalkon Shield);
  13. Thalidomide (defective drug caused birth defects);
  14. Unintended Acceleration (Toyota);
  15. Ignition defects (turning off airbags)(GM); and
  16. Dangerous working conditions (Coal miners, Walmart, etc.).

All of these products were improved as a direct result of personal injury lawsuits. Simply put, it’s essential to hold people accountable for their actions, and if a manufacturer has no incentive to make its products safer, it won’t. Time after time, history has shown us that manufacturers only respond to money incentives and that holding them financially accountable is effective. They’re in business to make money, and the fastest, most sure way to get them to improve their products is to hold them financially accountable for the injuries they cause.

Personal injury lawsuits plan essential role in free market economics, by rewarding manufacturers of safe products and punishing manufacturers of unsafe products.

Here’s a New York Times article describing the opening of the museum: (from: http://www.nytimes.com/2015/09/26/us/ralph-naders-tort-law-museum-seeks-to-keep-his-crusade-evergreen.html?_r=2, accessed September 28, 2015)

Ralph Nader’s Tort Law Museum Seeks to Keep His Crusade Evergreen

By Erik Eckholm – New York Times
Sept. 25, 2015

WINSTED, Conn. — There is no theme-park simulation of riding in a Ford Pinto as the gas tank bursts into flames. But there is a snazzy red Chevrolet Corvair, the car that Ralph Nader said had dangerous structural flaws in his 1965 book, “Unsafe at Any Speed.”
A half-century after the book made him famous and propelled his career as consumer-crusader in chief, the 81-year-old Mr. Nader — the auto industry tormentor who does not own a car — admitted that this Corvair, whatever else, was cool-looking.
That 1963 compact is the largest artifact in the new American Museum of Tort Law that Mr. Nader has established here in his hometown in northern Connecticut. During a tour of the museum before its opening on Sunday, he said he hoped the museum would teach a new generation about the vital benefits of personal injury lawsuits and even, dare it be said, plaintiff lawyers. He wants to educate people about the hard-fought history of consumer protections that are now taken for granted — and that he says are under assault.
“Tort law is being run into the ground, maligned, caricatured and slandered because it’s effective,” said Mr. Nader, still the ascetic reformer who seems to sleep in a suit and tie. He described the conservative agenda of tort reform, which seeks limits on lawsuits and financial awards, as “the cruelest movement I’ve ever encountered.”

The museum aims to describe the evolution of the law regarding negligence and liability, and it features some of the most groundbreaking cases of the late 20th century. These include decisions involving the Dalkon Shield (a dangerous intrauterine device) and the Ford Pinto (whose gas tank was prone to explosive burning in accidents), as well as the historic lawsuits that laid low tobacco companies and the asbestos industry.
Mr. Nader also dreams of having drama students re-enact famous tort trials in a mock courtroom here and streaming the cases online to high schools, colleges and law schools. The staff hopes to arrange frequent school tours and to keep a visible online presence.
One exhibit is devoted to “Unsafe at Any Speed,” and to how Mr. Nader prodded Congress to adopt automobile safety standards. Sales of the book were significantly bolstered, along with Mr. Nader’s public stature, when General Motors admitted it had hired private detectives to follow him and search for apparently nonexistent personal dirt. The company president, James M. Roche, was forced to apologize before television cameras at a Senate hearing in 1966 and also settled a lawsuit with Mr. Nader, who used the proceeds to finance one more public interest group.
Yet the museum is by no means an all-out homage to Mr. Nader, who is widely seen as the godfather of consumer rights and public interest law, although his starlight was later dimmed by hard-edge campaigns as a third-party presidential candidate and accusations that he spoiled Al Gore’s chances against George W. Bush.
One could fill halls solely with the exploits of Nader’s Raiders, the teams of college students he set loose on polluters and toothless regulators in the late 1960s, and the work of groups he founded like the Center for Study of Responsive Law, Public Citizen and more.
But most of the displays are not about his own work, and Mr. Nader does not see the museum as a valediction.

The displays, despite large cartoonish illustrations, require close reading, and many are accompanied by thought-provoking questions about the gray areas in liability.
Still, this is Ralph Nader, and educational does not mean nonpolitical. Though the language is not shrill, a common element in the showcased disputes is what the museum’s labels describe as strenuous efforts by companies to deceive the public about risks.
Pointedly included is the case that became a symbol to some of consumer overreach and trial lawyer greed: the 1992 suit by a 79-year-old woman who was badly burned in the groin and thighs when she spilled a cup of scalding McDonald’s coffee.
The display aims to counter what it describes as myths stoked by opponents of tort law who painted the case as an example of “lawsuit lottery.”
In the misguided popular lore, the display says, the woman was driving when the coffee spilled (she was not), she was not badly injured (she was, with third-degree burns that put her in the hospital for eight days and caused permanent scarring), she was out to fleece McDonald’s (the company rejected her initial request for just $20,000 to cover medical expenses) and she received millions (she received less than $500,000).
The museum is in a former bank in this struggling town, dotted with abandoned factories but on the path of weekend visitors to more prosperous areas. Mr. Nader knows that a museum in Washington would have more influence but said he had a hard enough time raising close to $3 million for this location. When he first described his vision for the museum, in 1998, he had hoped to raise $5 million within a year or two.
Speaking at a ceremony to dedicate the museum on Saturday will be the former attorney general Ramsey Clark; Senator Richard Blumenthal; the prizewinning historian Eric Foner of Columbia University, who in an interview called tort law “the weapon of the weak”; and the punk-rock singer and author Patti Smith.
Improbable as it may seem, Mr. Nader and Ms. Smith, 68, have developed what both describe as a close friendship. Ms. Smith said in a telephone interview that her father, a factory worker, had worshiped Mr. Nader and that she felt a deep bond when she performed at a rally in 2000 for him.
“I was really thrilled when they asked me to join the opening of the museum,” Ms. Smith said.
Mr. Nader’s difficulty in fund-raising for the museum is an indication of a broader decline in his standing in some quarters.  If Mr. Nader was widely seen as a hero of the 20th century, the 21st has been less kind. He and his offshoot groups have struggled to get the splashy news coverage they once had. In 1966, President Lyndon B. Johnson invited him to the White House to witness the signing of highway safety laws; today, Mr. Nader’s latest book is “Return to Sender: Unanswered Letters to the President, 2001 — 2015.”
But beyond that, he lost support in 2000, when, critics say, his presidential run on the Green Party ticket helped Mr. Bush win. Mr. Nader rejects that charge, arguing that many other factors played a greater role in Mr. Gore’s defeat.
Still writing with Underwood manual typewriters, Mr. Nader is unbowed. If anything, he has become more caustic than ever as he denounces the influence of corporate money and power, and what he sees as government acquiescence. He also has sharp words for what he says is misinformation spread by the well-financed tort reform movement.
This month he excoriated federal prosecutors for letting his old nemesis, General Motors, off with a nearly $1 billion penalty, but no individual criminal charges, for failing to disclose a safety defect tied to at least 124 deaths.
On his blog, widely shared on progressive websites, Mr. Nader said the agreement “desecrates the memory” of the victims, and he described General Motors as a “homicidal fugitive from justice.”

A Brief Summary of The Primary Missouri Law Prohibiting Employment Discrimination

The Missouri Human Rights Act In A Nutshell

In general, Missouri has some strong laws regarding human rights in employment and prohibiting discrimination.  These state laws are in addition to any applicable Federal laws, and both federal and state laws can be used in most situations.

What do Missouri’s employment discrimination laws prohibit?

Though Missouri has a significant number of laws preventing discrimination in employment, the most significant one is the Missouri Human Rights Act.  The MHRA makes it illegal for an employer with 6 or more employees to discriminate in employment in any way against an individual because of that person’s race, color, religion, national origin, ancestry, sex, disability or age (40 through 69).  The MHRA does not only apply to hiring and firing, and actually makes it illegal for employers to use any of these categories as  a factor for making any employment-related decisions.

Examples of some employment-related decisions covered by the MHRA include:

• who to hire;
• who to discipline, suspend, warn, put on probation, etc.;
• who to fire or terminate;
• how much to pay employees;
• how to give out work assignments;
• how employees are classified;
• transferring employees ;
• giving raises;
• giving out promotions;
• laying employees off;
• calling employees back from layoffs;
• job advertisements;
• recruitment;
• testing;
• use of company facilities;
• training and apprenticeship programs;
• fringe benefits;
• retirement plans;
• leave, or time off from work; and
• other terms and conditions of employment.

Illegal, discriminatory practices under the Act also include:

• harassment on the basis of race, color, religion, national origin, ancestry, sex, disability, or age (but the MHRA only protects people between the ages of 40 and 69);
• retaliating in any way against a person for filing a complaint of discrimination;
• retaliating in any way against a person for testifying in any investigation or hearing;
• retaliating in any way against a person for opposing discriminatory practices; and
• denying employment opportunities to a person because of marriage to, or association with, an individual of a particular race, religion, national origin, or an individual with a disability.

The MHRA Requires The Employee To Meet Strict Time Deadlines and File a Complaint with the Missouri Commission on Human Rights Before Filing  a Lawsuit

If you believe you were discriminated against, the MHRA requires you to file a  timely complaint, called a “charge of discrimination,” with the Missouri Commission on Human Rights.   You are not permitted to file a lawsuit against the employer until the charge is filed with  the Commission and  they have been given at least 180 days to investigate.  Although the  Commission is overworked, sometimes they will on occasion actually file a lawsuit for you if they think  your situation is sufficiently serious.

Should You Sue Under Federal Law, State Law, Or Both?

Unfortunately, there is no  simple answer to this question.   Every employee’s situation is different.  Discrimination can be a particularly complex area of law and the laws you  might be able sue under depend on many different factors.  For  example, the MHRA applies to every employer with 6 or more employees,  but other employment discrimination laws  frequently use different numbers. The Age Discrimination in Employment Act (a federal law) only applies to employers with 20 or more employees.

There are also many different  complicated strategy issues which need to be addressed.  For instance, one of the most important decisions is whether to make a claim under state law or under federal law,  because that will frequently affect which court handles your case.

The employee who is  making a claim is typically far better off having their case  heard in Missouri state court rather than federal court.   One reason is because federal judges are far more likely to (unjustly)  throw cases out of court before trial.  Another reason is that in federal court the person who is suing loses unless they get 100%  of the jurors (all 6 out of 6) to rule in their favor.    In Missouri state court, however,  the person who is suing wins if they can get 75% (9 out of 12)  to rule in their favor.

If you believe that you have been discriminated against by an employer, you should immediately contact an experienced attorney to represent you, because the statute of limitation deadlines set forth in the MHRA is extremely short, measured in days, not years.

Robert Curran is an experienced attorney representing employees who have been illegally discriminated against. He practices at Curran Law Firm and can be reached at 417-823-7500.  Please call for a free consultation to discuss your situation and an evaluation of whether you have a valid discrimination claim under the Missouri Human Rights Act.

 

This blog and website present general information about Robert Curran and Curran Law Firm, and is not intended as legal advice nor should you consider it such. To obtain legal counsel or legal services from us, we must first establish an attorney-client relationship with you, which will only do in writing.  Until you do so and receive an engagement letter, you have not hired an attorney and have not become a client of ours.  We cannot represent you until the firm determines that there is no conflict of interest and that it is willing and otherwise able to accept the new engagement.

Federal Laws Limiting Number of Hours Tractor-Trailer Drivers Can Work Are Routinely Ignored, Putting All Of Us At Risk

One of the biggest risk facing all of us as we drive our nation’s highways are unsafe tractor-trailers. The average person really doesn’t understand just how dangerous they can be,  because they’re not familiar with all of the issues surrounding these massive  vehicles.

In order to protect all of us, the federal government  has  strict rules limiting the number of hours  and operator can drive at one time. Unfortunately,  these limits are frequently ignored both by individual truck drivers as well as by the companies that put them on our roads.

Fatigued truck drivers remain one of the biggest causes of deaths on our nation’s highways.  Large companies concerned about their public image do everything they can to hide it,  but the fact remains that many large companies frequently and repeatedly permit, and sometimes insist upon, their drivers violating federal limits on hours behind the wheel.

The National Transportation Safety Board  has just  concluded its review of the tragic truck crash in which a Walmart truck  crushed a limousine in which Tracy Morgan and others were riding.   the driver of the Walmart truck had been awake for 28 hours straight,  and had driven over 800 miles just to get to work,  where Walmart then put him behind the wheel of a tractor-trailer.   That driver was also speeding at the time of the crash, doing 65 in a 45 mph construction zone on the New Jersey Turnpike.

As so often happens in these kinds of crashes, Tracy Morgan was diagnosed as suffering from a traumatic brain injury (TBI).   These is the same kind of invisible but still life-changing injury suffered by  many of our troops in the Middle East from IED’s.

Only in the past five or 10 years has medical science really begun to understand what exactly is happening in these serious brain injuries.    Very frequently, patients with obvious and significant cognitive problems have brain and head MRIs and CT studies which look completely normal.  This occurs because MRI’s and CT’s create images of  the larger structures in the brain, but in  most TBI’s the damage is microscopic –  massive, but still microscopic.   The nerve cells in the brain are typically very very long  and incredibly thin,  far thinner than the human hair.   When the  skull is  shaken, jarred or hit, the brain bounces around inside the skull, which is very sharp on the inside. As a result,   huge numbers of brain cells can get sheared or broken,   interfering with the brain’s function.

Here’s a link to an article from Reuters addressing the NTSB investigation, as well as a copy of the text of the article itself.   iit’s important to note that the NTSB did not find there was a problem with just this one driver, and instead is recommending that Wal-Mart implement systemwide changes to “improve fatigue management programs for drivers and install better vehicle warning systems for drivers and delivery operators.”

If you’ve been injured in a  truck crash  are any incident involving a brain injury,  you need an experienced attorney helping you deal with all the many different problems you’ll face.  We’re here to help.   call Curran Law Firm at  417-823-7500.

http://in.reuters.com/article/2015/08/11/people-tracy-morgan-idINKCN0QG1R420150811

Tired, speeding driver held responsible for 2014 Tracy Morgan crash

A speeding Wal-Mart (WMT.N) truck driver who had been awake for 28 hours was held responsible on Tuesday for a 2014 highway crash that left “30 Rock” star Tracy Morgan with brain injuries and killed a fellow comedian, U.S. transport regulators said.

The National Transportation Safety Board also concluded in a review that the injuries to Morgan and other passengers were exacerbated by their failure to wear seat belts.

Changes to the interior of their limousine van trapped them inside for some 40 minutes after the vehicle overturned in the June 7, 2014 collision on the New Jersey turnpike, the review board said.

Morgan, 46, suffered a serious brain injury and broken bones and was left in a coma. The “Saturday Night Live” star has not performed since the accident. Comedian James “Jimmy Mack” McNair was killed and nine other people were injured in the chain reaction collision that involved 21 people in six vehicles

In a public hearing, NTSB officials said the Wal-Mart truck driver had driven 800 miles overnight to the company’s distribution centre before embarking on his delivery, and had been awake for more than 28 hours at the time of the crash.

The truck was driving 65 miles per hour (104 km per hour) in a 45 miles per hour (72 km per hour) zone. It did not slow down when entering a road construction zone where it rear-ended the slower-travelling limousine van at around 1:00 a.m. ET, the NTSB said.

“The passengers … had no available exits until emergency responders removed part of a plywood panel that had been installed between the passenger compartment and the cab,” NTSB Chairman Christopher Hart said at the meeting in Washington.

The only other way of exiting, a sliding door, “had become inoperable in the crash,” Hart said.

The driver of the van was not wearing a seat belt and only one of the six passengers was strapped in, allowing them to be thrown around inside at the time of the impact.

NTSB investigators recommended that Wal-Mart improve fatigue management programs for drivers and install better vehicle warning systems for drivers and delivery operators.

The truck driver, Kevin Roper, faces charges of vehicular homicide and assault by auto and is awaiting trial in New Jersey.

Morgan and some of the others who were injured reached a settlement with Wal-Mart in May, although terms have not been made public.

(Reporting by Susan Heavey and Jill Serjeant; Editing by Bill Trott, Will Dunham and Andrew Hay)

Secrecy Provisions In Lawsuit Settlements Should Be Prohibited By Law, Kansas City Star Says

It is increasingly common for defendants who are sued to take the position that they will only settle a lawsuit if the person suing agrees to keep everything secret, sometimes even including the fact that there was a settlement at all.  a recent article by the Kansas City Star, described below, addresses this point and argues that these secrecy provisions are bad public policy,  and against the interests of the general public.

At Curran Law Firm, we agree that as a matter of public policy, secrecy provisions in lawsuit settlements should be outlawed, because, among other things, secret settlements but the general public at risk by protecting wrongdoers and enabling future injuries   and wrongs to occur.

One of the main situations where this occurs is when someone is injured by a dangerous and defective product, such as a defective car. It is standard operating procedure for car manufacturers to refuse to turn over documents about their product research and product developments unless the court issues an order requiring the person suing to keep all the documents confidential while the lawsuit is pending.

Sometimes those documents will contain a “smoking gun” (for example, strong evidence that the manufacturer new for a long time about a defect, or specifically cut safety corners because making a safe product would cut into profit margins, etc.)

In many of those situations, the manufacturer buys silence from the person suing by making a settlement offer to the injury victim that they can only accept if they agree to keep everything quiet, hiding the dangers and history from an unsuspecting public. The manufacturers do this because they want to keep a lid on their wrongdoing – they know there will be other lawsuits, and they’re playing defense on those other lawsuits before they’re even filed by trying to make sure the other people they injure can never get their hands on the documents they need to help prove their case.

This is exactly what GM did in the recent situation involving its ignition defects. The ignition key slot was defective and could turn the car off accidentally if the key got jostled while driving. If that occurred, the engine turned off and all electrical equipment got shut off – including power steering, power brakes, power to the wheels and, most importantly, to airbags. Many people got killed, and GM knew about it yet hid the defects from the public, simply because it didn’t want the expense and bad press of a recall. It didn’t matter GM that by failing to recall these defective products, other people were going to be killed in the future.

In cases such as these, secrecy provisions work to enable manufacturers to continue to hide long-standing problems, defects in injuries from unsafe products. Legislature should declare these secrecy contracts illegal, in order to protect the public.

Another situation where businesses insist on secrecy provisions is where someone sues claiming employment discrimination. The claims are different, but the idea is the same as with products defects: the company buys the silence from this person who is suing, all in an effort to try to prevent other victims from getting their hands on evidence which they can use to make additional successful claims.

The Kansas City Star has justifiably expressed great concern that secrecy provisions in lawsuit settlement papers are contrary to the public’s interest because, among other things, they enable continuing discrimination, future lawsuits, and allow wrongdoers to escape accountability. It also is a drain on public funds for other purposes.

Here’s an article from the Kansas City Star (retrieved on July 15, 2015), which gives good insight into this area and why these secrecy provisions are bad for us all:

What’s Inside Those Secret Jackson County Employment Discrimination Settlements? Good Luck Finding Out

tp://www.kansascity.com/news/government-politics/article26503168.html

Jackson County has spent more than $2 million since 2011 settling employment discrimination complaints brought by county employees. Yet county taxpayers are never told the specific nature of the allegations or whether corrective actions were taken to lessen the likelihood of future payouts.

That practice goes beyond a standard refusal by top county officials to comment on employment cases. The county goes to far greater lengths than some other local governments to keep the allegations secret by requiring complainants in many cases to sign confidentiality agreements as one condition of the settlements.

At the county’s insistence, nine former employees spread across county government promised to keep quiet in exchange for $1.8 million in the past 15 months alone. Some of the agreements are stricter than others, settlement documents obtained by The Star through an open records request show.

At the risk of being sued for breach of contract, two recipients of settlement checks aren’t even allowed to acknowledge they have received a monetary settlement despite the fact that the agreements containing the confidentiality clauses are matters of public record and the payments were all approved during open sessions of the Jackson County Legislature.

In one recent case, the county asked that a judge seal the case file of the lawsuit that led up to the $110,000 settlement payment to a former employee of the county assessment department. Today, the public record has been wiped clean to the point that there is nothing on Case.net, the court records index, to show a suit was ever filed.

The attorney who brought the lawsuit said that as much as she wanted to discuss the case, she couldn’t due to the agreement she and her client signed with the county.

Not every local government is as secretive as Jackson County, though.

Kansas City, for example, has settled numerous employment discrimination cases in recent years totaling about $4 million in settlement payments, yet almost never inserts confidentiality clauses.

“I can’t think of when we’ve done one,” City Attorney Bill Geary said.

But five of the last seven Jackson County employment discrimination cases resulting in a five- or six-figure settlement have included confidentiality clauses. County Counselor W. Stephen Nixon said that practice is in the best interest of all involved.

“Cases of this type are settled because both parties are convinced that course of action is the proper outcome,” he said in a prepared statement. “In most cases the facts are still in dispute, but the county may determine that it is in the best interest of taxpayers to settle and avoid the cost of going to court. It is, and has been, a common practice in such cases to protect the interests of both parties, and our current employees, by including a confidentiality agreement.”

But others think such broad secrecy is bad public policy because the public has no way of knowing whether instances of alleged discrimination are isolated or systemic and whether appropriate steps have been taken to protect other employees and the taxpayers’ liability.

“When your employer pays you six figures, they’re not just doing that to get the case to go away,” said J.P. Clubb, a former assistant Missouri attorney general and expert on the state’s Sunshine Law who is now in private practice in Cape Girardeau. “There was a wrong that needed to be remedied … and we should be entitled to know about it.”

The cases

Jackson County does not agree and asks taxpayers, instead, to put their trust in the government.

“Every employee complaint is thoroughly investigated,” Nixon said, “and action is taken where needed. The county uses information from such complaints to build our employee training programs. We are responsive to the need to continually update that training.”

A retired judge and former mayor of Lake Lotawana, Nixon has presided over the negotiations in all of the cases involving confidentiality agreements since becoming the county’s chief lawyer in 2011.

In each instance, there is no useful description in any of the settlement documents as to what sort of bad behavior was being alleged. The extent of Nixon’s investigations and their findings are never disclosed. And there is never any mention of what, if any, information was gleaned from those investigations to, as Nixon put it, build upon the county’s employee training programs.

A good example is the largest of those settlements, a $1.4 million payout in March 2014 to five women who were then current or former employees of the county assessment department.

The resolution approving the payments, ranging from $75,000 to $700,000, was more explicit than most. But even then, the description of the underlying causes for action dating to the 1990s was vague.

According to the resolution, “in each case the injuries allegedly suffered by each claimant were alleged to have been caused by acts and/or omissions of former county employees that violated the claimants’ rights secured by federal and state law to be free from harassment and discrimination in the workplace.”

The resolution goes on to say that Nixon and “special employment counsel” investigated the claims and then began settlement negotiations. It makes no mention of any lawsuits being filed, and none is on record at the Jackson County Courthouse.

Nor is there even the slightest hint of what would justify such a large settlement.

Privately, county officials said the women, at least some of whom were black, had been the subjects of sexual and racial harassment that was, according to those officials, “disgusting.” But there is no mention of any of that in the settlement documents.

At least six county employees either engaged in the improper conduct or knew about it and did not report it, a county official said at the time of the settlement. All had left the payroll by that time through resignation, termination or retirement, officials said privately, but there is no way to verify that because those people were never named and the complainants are all bound by confidentiality agreements.

“It was bad, and it was corrected,” said Dan Tarwater, this year’s chairman of the Jackson County Legislature. By settling, he said, “we did the best job we could possibly do to save the taxpayers the most money we could save them.”

The male plaintiff in a more recent case involving the assessment department is also silenced. According to the settlement resolution, the employee filed suit against the county in Jackson County Circuit Court. But none of those allegations is public record due to conditions set forth in the settlement agreement.

A Jackson County employee for 23 years, the man made $69,388 a year as a senior administrative manager in the assessment department, where he had “alleged certain employment claims in the workplace,” the county counselor’s office said.

Whatever those claims, the Jackson County Legislature approved a settlement resolution this month that said it was “in the best interest of the health, safety and welfare of the citizens of Jackson County.” The plaintiff, who is African-American, received $90,000 and his lawyer, Lynne Bratcher, $20,000.

The plaintiff could not be reached for comment, although he couldn’t have said anything without violating the confidentiality agreement. Likewise, Bratcher said she couldn’t comment because of the agreement her client signed.

Two other recent settlements, in 2014 and 2015, were the result of complaints filed by two now-former employees of the Jackson County Sheriff’s Department.

Both women alleged discrimination and received settlements that were twice or three times their annual salaries after signing confidentiality agreements and agreeing not to make disparaging comments about Sheriff Mike Sharp.

While no details were disclosed, a Lee’s Summit police report was filed by one of the women. She alleged that she was sexually assaulted by a female co-worker in the sheriff’s department and the woman’s boyfriend at a motel after a night of drinking in September 2013.

In the police report, she alleges that the woman who stripped her clothes off and held her down on the bed was a friend of Sharp. The complainant said Sharp became angry when she told him about the incident in a private conversation and said she felt resentment afterward because Sharp and the other woman were friends.

The prosecutor did not file charges.

Through a department spokeswoman, Sharp declined to comment about the settlements, which totaled $153,500. As of last week, the woman accused of taking part in the assault was still on the sheriff’s department payroll, according to county records.

When there is no confidentiality agreement, the basis for discrimination claims becomes clearer.

For example, a Shawnee woman received a $30,000 settlement after filing a lawsuit alleging sexual harassment while working as a corrections officer in 2010 at the Jackson County Detention Center.

According to the lawsuit, one of her supervisors made unwelcome comments about her body, asked about her period and sometimes grabbed his crotch in front of her and made sexual comments.

When she complained to higher-ups, they did nothing to discipline the man, she said, and instead built a case against her so they would have reason to fire her.

The lawsuit case file remains open, and there was no confidentiality agreement included in the 2013 settlement.

Reached this past week, the woman’s attorney said he’d understood that the supervisor was fired around the time of the settlement.

The man did not in fact leave the county payroll until this past May 20, a county spokesman said, more than two years after the settlement was announced and the court case closed.

County Executive Mike Sanders declined to comment on any of the cases or how his county counselor handles them.

Whistleblower Laws Benefit Us All, And Should Be Maintained And Strengthened

We should maintain, if not strengthen, employment protections given to employees who report illegal or discriminatory conduct on the part of a co-employee or employer. The common term for an employee who exposes illegal or wrongful conduct is “whistleblower.”

Unfortunately, there is an active movement to cut back on the legal protections given to such employees, which is bad public policy. Society as a whole benefits when an employee comes forward and exposes wrongful conduct on the part of an employee.  This movement, driven largely by big business and insurance companies,  is very shortsighted,  because whistleblowing should be encouraged as a matter of good policy.

A recent example perfectly illustrates the point.  ABC News recently ran an article here entitled “How Whistle-Blower Helped Expose Michigan Cancer Doctor Who Mistreated Patients.”  The article explained that a greedy Michigan cancer doctor, Dr. Farid Fata, was intentionally giving false cancer diagnoses to patients just so that he could charge them for chemotherapy and other expensive treatments, defrauding not only the patient but primarily their health insurance company. The piece states that over 553 patients fell victim to his lies. In some cases, the patient never had cancer at all but were told that they did to get them to undergo treatment. In other cases, the patient actually had cancer, but in order to increase his income Dr. Fata actually gave them more expensive treatments designed to treat cancer is different from the one they actually had.

Dr. Fata worked at Crittenton Cancer Center in Rochester Hills, Michigan, and his whole criminal scheme only was exposed due to the actions of a brave whistleblower, office manager George Karadsheh, and some other members of the office staff at that center.  Because of Mr. Karadsheh’s courageously exposing his scheme, Dr. Fata’s now serving a well-deserved 45-year prison sentence.

But there’s going to be another consequence of this whistleblowing: Crittenton Cancer Center is no doubt going to be facing a large number of malpractice lawsuits from patients who were lied to about their cancer,  as well as from health insurance companies who paid fraudulent chemotherapy bills.

So now we need to ask ourselves:   Do we as a society want to encourage people like Mr. Karadsheh to come forward and expose wrongdoing?   I think we would all  answer yes to that question.

Now consider  a clinic down the road and imagine a situation in the future, two years from now.   The office manager has just learned that one of the doctors at that clinic is doing the exact same thing that Dr. Fata.   The office manager asks herself:   “What should I do?”  If  she’s aware that there are little or no protections for whistleblowers, and then what protections there are very difficult to enforce  because employers frequently hide behind innocent looking explanations, she may unfortunately conclude that she can’t personally afford to do the right thing.   She can’t afford to expose the wrongdoing, because she doesn’t want to   risk getting fired and being blackballed in  the only industry she knows.    she decides that she’s worked hard to get where she is, and doesn’t want risk her career no matter how awful  the doctor’s conduct.

Dr. Fata’s is a particularly severe case, but these whistleblower situations, and this analysis on the part of a potential  whistleblower, are common.

Many times, the only way someone who’s been illegally discriminated against only learns about it when an insider tells them what really happened. (“My manager told me that he threw your resume out because he would never hire a “[fill in the blank with the name of any protected group].”)

Employers frequently placed the blame for those suits on the person who exposed the situation, rather than the person who was actually committed the wrong. And that is exactly why we need laws protecting whistleblowers. Society benefits from the whistleblower exposing the illegal and discriminatory conduct.

A Supreme Court Justice once said “Sunlight is the best disinfectant.”   We need to encourage citizens to pull back the blinds and let others see wrongdoing.  Because these employees benefit society as a whole, we should keep and strengthen laws protecting these whistleblower employees and making it illegal for employers to retaliate against them.

There’s little doubt that many people who could expose wrongdoing are very reluctant to do so out of a fear that they going to place their job at risk. They should not have to worry about that, and these laws should be maintained and strengthened.

12 Widely Held But Largely False Beliefs About Criminal Prosecutions In America

Judge Alex Kaczynski, a Judge for the Ninth Circuit Court of Appeals (just below the United States Supreme Court) recently wrote an article for the Georgetown Law Journal, in which he pointed out 12 widely held but largely false beliefs about criminal prosecutions in America.
Judge Kaczynski’s 12 Widely Held But Largely False Beliefs About Criminal Prosecutions In America:
1. Eyewitnesses Are Highly Reliable.
Eyewitnesses are highly unreliable, especially when the witness and perpetrator are of different races, or when witnesses are asked to recall a situation in which they were under the stress of violent crime or catastrophe, Kozinski writes. Mistaken eyewitness testimony was a factor in one-third of all wrongful conviction cases, according to his article.

2. Fingerprint Evidence Is Foolproof

Kozinski says prints left in the field are often smudged and incomplete — making them difficult to identify. He adds that when tested by more rigorous scientific methods, fingerprint examiners have a significant error rate. The National Academies of Sciences has also said the work of fingerprint examiners can be flawed.

3. Other Types Of Forensic Evidence Are Scientifically Proven And Therefore Infallible

Aside from DNA evidence, Kozinski says what is true about fingerprint evidence is doubly true about bloodstain-pattern identification, foot- and tire-print identification, and ballistics. “Some fields of forensic expertise are built on nothing but guesswork and false common sense,” Kozinski writes. Recently, the Justice Department exposed major problems with microscopic hair testing in criminal cases.

4. DNA Evidence Is Infallible

Kozinski says the integrity of DNA evidence is often compromised during the collection, preservation, and testing process, and that DNA examiners are not always competent and honest.

5. Human Memories Are Reliable

Kozinski, citing a study by cognitive psychologist Elizabeth Loftus, believes the mind not only distorts and embellishes memories, but that external factors affect how memories are recalled and described. In an interview with Slate, Loftus acknowledged that we’re all capable of fabricating memories. “We all have memories that are malleable and susceptible to being contaminated or supplemented in some way,” Loftus said.

6. Confessions Are Infallible Because Innocent People Never Confess

Kozinski has found that innocent people confess surprisingly often, due to a variety of factors including interrogation tactics, Stockholm syndrome, emotional or financial exhaustion, family considerations, and general feeble-mindedness. As The New Yorker has reported, police can also produce false confessions by using certain interrogation techniques widely taught to police officers.

7. Juries Follow The Court’s Instructions On What They’re Supposed To Do

Kozinski claims courts know very little of what juries do when they decide cases. Courts have no way of knowing whether juries follow instructions or even whether they understand them, according to Kozinski.

“We have no convincing reason to believe that jury instructions in fact constrain jury behavior in all or even most cases,” Kozinski writes.

8. Prosecutors Play Fair

Kozinski believes prosecutors often fail to turn over evidence that could be favorable to the defense, known as exculpatory evidence. In a case called Brady v. Maryland, the Supreme Court ruled that prosecutors have to turn over that evidence. But Kozinski claims there’s an “epidemic” of Brady violations in America.

9. The Prosecution Is At A Substantial Disadvantage Because It Must Prove Its Case “Beyond A Reasonable Doubt”

In reality, Kozinski writes, the defendant is often at a disadvantage because prosecutors have the chance to argue their case before the defense during a trial.

That’s troubling because of psychological evidence showing that “whoever makes the first assertion about something has a large advantage over everyone who denies it later,” according to Kozinski.

10. Police Are Objective In Their Investigations

Kozinski says police have the opportunity to alter or remove evidence, influence witnesses, extract confessions, and more or less lead an investigation in such a way that they can stack the deck against somebody they believe should be convicted.

“There are countless documented cases where innocent people have spent decades behind bars because the police manipulated or concealed evidence,” Kozinski writes.

11. Guilty Pleas Are Conclusive Proof Of Guilt

Kozinski has found that when a defendant believes an outcome is highly uncertain or stacked against them, they might cave and enter a guilty plea to a lesser charge so that they can still salvage a part of their life.

Another Federal Court judge, Judge Jed Rakoff, has also lamented the fact that 97% of federal criminal defendants plead guilty if their cases aren’t dismissed.

12. Long Sentences Deter Crime

America has 716 prisoners for every 100,000 people — the most of any country in the world, Kozinski notes. America also has much longer sentences than other countries for comparable crimes. Kozinski points out that a burglary charge in the US warrants an average of 16 months in prison, compared with five months in Canada and seven months in England.

“As with much else in the law, the connection between punishment and deterrence remains mysterious,” Kozinski writes. “We make our decisions based on faith.”

 

Read More:  As of July 5, 2015 you can read more about this article at the following sources:

Criminal Law 2.0 – Preface to the 44th Annual Review of Criminal Procedure


http://www.businessinsider.com/alex-kozinski-article-in-the-georgetown-law-review-2015-7#ixzz3f2G3mEBV

Today is the 800th birthday of the Magna Carta, the Landmark British Constitution which Inspired the American Revolution and Our Constitution

Today is the 800th birthday of the Magna Carta! This landmark English document was signed by King John on June 15, 1215 in the fields of Runnymede, England. It is generally viewed to have been the most significant early constitution.  The King’s signing it granted significant concessions to the landowners by limiting the King’s powers, which until then were essentially unlimited.

This document is revered in America because it is the source of many of the provisions of the American Bill of Rights (the first 10 amendments to our Constitution), as well as other provisions set forth directly in the original Constitution itself.   The article set forth below explains in detail the relationship between the American Constitution and the Magna Carta, and the significance of each.

 

Magna Carta (Latin for “the Great Charter“), also called Magna Carta Libertatum (Latin for “the Great Charter of the Liberties“), is a charter agreed by King John of England at Runnymede, near Windsor, on 15 June 1215.[a] First drafted by the Archbishop of Canterbury to make peace between the unpopular King and a group of rebel barons, it promised the protection of church rights, protection for the barons from illegal imprisonment, access to swift justice, and limitations on feudal payments to the Crown, to be implemented through a council of 25 barons. Neither side stood behind their commitments, and the charter was annulled by Pope Innocent III, leading to the First Barons’ War. After John’s death, the regency government of his young son, Henry III, reissued the document in 1216, stripped of some of its more radical content, in an unsuccessful bid to build political support for their cause. At the end of the war in 1217, it formed part of the peace treaty agreed at Lambeth, where the document acquired the name Magna Carta, to distinguish it from the smaller Charter of the Forest which was issued at the same time. Short of funds, Henry reissued the charter again in 1225 in exchange for a grant of new taxes; his son, Edward I, repeated the exercise in 1297, this time confirming it as part of England’s statute law.

The charter became part of English political life and was typically renewed by each monarch in turn, although as time went by and the fledgling English Parliament passed new laws, it lost some of its practical significance. At the end of the 16th century there was an upsurge in interest in Magna Carta. Lawyers and historians at the time believed that there was an ancient English constitution, going back to the days of the Anglo-Saxons, that protected individual English freedoms. They argued that the Norman invasion of 1066 had overthrown these rights, and that Magna Carta had been a popular attempt to restore them, making the charter an essential foundation for the contemporary powers of Parliament and legal principles such as habeas corpus. Although this historical account was badly flawed, jurists such as Sir Edward Coke used Magna Carta extensively in the early 17th century, arguing against the divine right of kings propounded by the Stuart monarchs. Both James I and his son Charles I attempted to suppress the discussion of Magna Carta, until the issue was curtailed by the English Civil War of the 1640s and the execution of Charles.

The political myth of Magna Carta and its protection of ancient personal liberties persisted after the Glorious Revolution of 1688 until well into the 19th century. It influenced the early American colonists in the Thirteen Colonies and the formation of the American Constitution in 1789, which became the supreme law of the land in the new republic of the United States. Research by Victorian historians showed that the original 1215 charter had concerned the medieval relationship between the monarch and the barons, rather than the rights of ordinary people, but the charter remained a powerful, iconic document, even after almost all of its content was repealed from the statute books in the 19th and 20th centuries. Magna Carta still forms an important symbol of liberty today, often cited by politicians and campaigners, and is held in great respect by the British and American legal communities, Lord Denning describing it as “the greatest constitutional document of all times – the foundation of the freedom of the individual against the arbitrary authority of the despot”.[1]

In the 21st century, four exemplifications of the original 1215 charter remain in existence, held by the British Library and the cathedrals of Lincoln and Salisbury. There are also a handful of the subsequent charters in public and private ownership, including copies of the 1297 charter in both the United States and Australia. The original charters were written on vellum sheets using quill pens, in a particular style of abbreviated Latin. Each was sealed with the royal great seal using beeswax and resin, most of which have not survived. Although academics refer to the 63 numbered “clauses” of Magna Carta, this is a modern system of numbering, introduced by Sir William Blackstone in 1759; the original charter formed a single, long unbroken text. The four original 1215 charters were displayed together at the British Library for one day, 3 February 2015, to mark the 800th anniversary of Magna Carta.

Contents

History

13th century

Background

Magna Carta originated as an unsuccessful attempt to achieve peace between royalist and rebel factions in 1215, as part of the events leading to the outbreak of the First Barons’ War. England was ruled by King John, the third of the Angevin kings. Although the kingdom had a robust administrative system, the nature of government under the Angevin monarchs was ill-defined and uncertain.[2][3] John and his predecessors had ruled using the principle of vis et voluntas, or “force and will”, taking executive and sometimes arbitrary decisions, often justified on the basis that a king was above the law.[3] Many contemporary writers believed that monarchs should rule in accordance with the custom and the law, with the counsel of the leading members of the realm, but there was no model for what should happen if a king refused to do so.[3]

John had lost most of his ancestral lands in France to King Philip II in 1204 and had struggled to regain them for many years, raising extensive taxes on the barons to accumulate money to fight a war which ultimately ended in expensive failure in 1214.[4] Following the defeat of his allies at the Battle of Bouvines, John had to sue for peace and pay compensation.[5] John was already personally unpopular with many of the barons, many of whom owed money to the Crown, and little trust existed between the two sides.[6][7][8] A triumph would have strengthened his position, but in the face of his defeat, within a few months of his return from France John found that rebel barons in the north and east of England were organising resistance to his rule.[9][10]

The rebels took an oath that they would “stand fast for the liberty of the church and the realm”, and demanded that the King confirm the Charter of Liberties that had been declared by King Henry I in the previous century, and which was perceived by the barons to protect their rights.[11][10][12] The rebel leadership was unimpressive by the standards of the time, even disreputable, but were united by their hatred of John;[13] Robert FitzWalter, later elected leader of the rebel barons, claimed publicly that John had attempted to rape his daughter,[14] and was implicated in a plot to assassinate John in 1212.[15]

John held a council in London in January 1215 to discuss potential reforms, and sponsored discussions in Oxford between his agents and the rebels during the spring.[16] Both sides appealed to Pope Innocent III for assistance in the dispute.[17] During the negotiations, the rebellious barons produced an initial document, which historians have termed “the Unknown Charter of Liberties”, which drew on Henry I’s Charter of Liberties for much of its language; seven articles from that document later appeared in the “Articles of the Barons” and the subsequent charter.[18][19][20]

It was John’s hope that the Pope would give him valuable legal and moral support, and accordingly he played for time; the King had declared himself to be a papal vassal in 1213 and correctly believed he could count on the Pope for help.[21][17] John also began recruiting mercenary forces from France, although some were later sent back to avoid giving the impression that the King was escalating the conflict.[16] In a further move to shore up his support, John took an oath to become a crusader, a move which gave him additional political protection under church law, even though many felt the promise was insincere.[22][23]

Letters backing John arrived from the Pope in April, but by then, the rebel barons had organised into a military faction. They congregated at Northampton in May and renounced their feudal ties to John, marching on London, Lincoln, and Exeter.[24] John’s efforts to appear moderate and conciliatory had been largely successful, but once the rebels held London, they attracted a fresh wave of defectors from the royalists.[25] The King offered to submit the problem to a committee of arbitration with the Pope as the supreme arbiter, but this was not attractive to the rebels.[26] Stephen Langton, the Archbishop of Canterbury, had been working with the rebel barons on their demands, and after the suggestion of papal arbitration failed, John instructed Langton to organise peace talks.[25][27]

Great Charter of 1215

John met the rebel leaders at Runnymede, near both the royal fortress of Windsor Castle and the rebel base at Staines, on 10 June 1215, where they presented him with their draft demands for reform, the “Articles of the Barons”.[25][27][28] Stephen Langton’s pragmatic efforts at mediation over the next ten days turned these incomplete demands into a charter capturing the proposed peace agreement; a few years later, this agreement was renamed Magna Carta, meaning “Great Charter”.[29][27][28] By 15 June, general agreement had been made on a text, and on 19 June, the rebels renewed their oaths of loyalty to John and copies of the charter were formally issued.[28][27]

Although, as the historian David Carpenter has noted, the charter “wasted no time on political theory”, it went beyond simply addressing individual baronial complaints, and formed a wider proposal for political reform.[25][30] It promised the protection of church rights, protection from illegal imprisonment, access to swift justice, and, most importantly, limitations on taxation and other feudal payments to the Crown, with certain forms of feudal taxation requiring baronial consent.[31][9] It focused on the rights of free men—in particular the barons—excluding serfs and unfree labour.[30][b] Its style and content reflected Henry I’s Charter of Liberties, as well as a wider body of legal traditions, including the royal charters issued to towns, the operations of the Church and baronial courts and European charters such as the Statute of Pamiers.[34][35]

Under what historians later labelled “clause 61”, or the “security clause”, a council of 25 barons would be created to monitor and ensure John’s future adherence to the charter.[36] If John did not conform to the charter within 40 days of being notified of a transgression by the council, the 25 barons were empowered by clause 61 to seize John’s castles and lands until, in their judgement, amends had been made.[37] Men were to be compelled to swear an oath to assist the council in controlling the King, but once redress had been made for any breaches, the King would continue to rule as before. In one sense this was not unprecedented; other kings had previously conceded the right of individual resistance to their subjects if the King did not uphold his obligations. Magna Carta was however novel in that it set up a formally recognised means of collectively coercing the King.[38] The historian Wilfred Warren argues that it was almost inevitable that the clause would result in civil war, as it as “was crude in its methods and disturbing in its implications”.[39] The barons were trying to force John to keep to the charter, but clause 61 was so heavily weighted against the King that this version of the charter could not survive.[37]

John and the rebel barons did not trust each other, and neither side seriously attempted to implement the peace accord.[36][40] The 25 barons selected for the new council were all rebels, chosen by the more extremist barons, and many among the rebels found excuses to keep their forces mobilised.[41][42][43] Disputes began to emerge between those rebels who had expected the charter to return lands that had been confiscated and the royalist faction.[44]

Clause 61 of Magna Carta contained a commitment from John that he would “seek to obtain nothing from anyone, in our own person or through someone else, whereby any of these grants or liberties may be revoked or diminished”.[45][46] Despite this, the King appealed to Pope Innocent for help in July, arguing that the charter compromised the Pope’s rights as John’s feudal lord.[47][44] As part of the June peace deal, the barons were supposed to surrender London by 15 August, but this they refused to do.[48] Meanwhile, instructions from the Pope arrived in August, written before the peace accord, with the result that papal commissioners excommunicated the rebel barons and suspended Langton from office in early September.[49] Once aware of the charter, the Pope responded in detail: in a letter dated 24 August and arriving in late September, he declared the charter to be “not only shameful and demeaning but also illegal and unjust” since John had been “forced to accept” it, and accordingly the charter was “null, and void of all validity for ever”; under threat of excommunication, the King was not to observe the charter, nor the barons try to enforce it.[50][44][51][48]

By then, violence had broken out between the two sides; less than three months after it had been agreed, John and the loyalist barons firmly repudiated the failed charter: the First Barons’ War erupted.[52][53][44] The rebel barons concluded that peace with John was impossible, and turned to Philip II’s son, the future Louis VIII, for help, offering him the English throne.[54][44][c] The war soon settled into a stalemate. The King became ill and died on the night of 18 October, leaving the nine-year-old Henry III as his heir.[55]

Great Charter of 1216

Although the Charter of 1215 was a failure as a peace treaty, it was resurrected under the new government of the young Henry III as a way of drawing support away from the rebel faction. On his deathbed, King John appointed a council of thirteen executors to help Henry reclaim the kingdom, and requested that his son be placed into the guardianship of William Marshal, one of the most famous knights in England.[62] William knighted the boy, and Cardinal Guala Bicchieri, the papal legate to England, then oversaw his coronation at Gloucester Cathedral on 28 October.[63][64][65]

The young King inherited a difficult situation, with over half of England occupied by the rebels.[66][67] He had substantial support though from Guala, who intended to win the civil war for Henry and punish the rebels.[68] Guala set about strengthening the ties between England and the Papacy, starting with the coronation itself, during which Henry gave homage to the Papacy, recognising the Pope as his feudal lord.[69][63] Pope Honorius III declared that Henry was the Pope’s vassal and ward, and that the legate had complete authority to protect Henry and his kingdom.[63] As an additional measure, Henry took the cross, declaring himself a crusader and thereby entitled to special protection from Rome.[63]

The war was not going well for the loyalists, but Prince Louis and the rebel barons were also finding it difficult to make further progress.[70][71] John’s death had defused some of the rebel concerns, and the royal castles were still holding out in the occupied parts of the country.[72][71] Henry’s government encouraged the rebel barons to come back to his cause in exchange for the return of their lands, and reissued a version of the 1215 Charter, albeit having first removed some of the clauses, including those unfavourable to the Papacy and clause 61, which had set up the council of barons.[73][74] The move was not successful, and opposition to Henry’s new government hardened.[75]

Great Charter of 1217

In February 1217, Louis set sail for France to gather reinforcements.[76] In his absence, arguments broke out between Louis’ French and English followers, and Cardinal Guala declared that Henry’s war against the rebels was the equivalent of a religious crusade.[77] This declaration resulted in a series of defections from the rebel movement, and the tide of the conflict swung in Henry’s favour.[78] Louis returned at the end of April, but his northern forces were defeated by William Marshal at the Battle of Lincoln in May.[79][80]

Meanwhile, support for Louis’ campaign was diminishing in France, and he concluded that the war in England was lost.[81] He negotiated terms with Cardinal Guala, under which Louis would renounce his claim to the English throne; in return, his followers would be given back their lands, any sentences of excommunication would be lifted, and Henry’s government would promise to enforce the charter of the previous year.[82] The proposed agreement soon began to unravel amid claims from some loyalists that it was too generous towards the rebels, particularly the clergy who had joined the rebellion.[83]

In the absence of a settlement, Louis remained in London with his remaining forces, hoping for the arrival of reinforcements from France.[83] When the expected fleet did arrive in August, it was intercepted and defeated by loyalists at the Battle of Sandwich.[84] Louis entered into fresh peace negotiations, and the factions came to agreement on the final Treaty of Lambeth, also known as the Treaty of Kingston, on 12 and 13 September 1217.[84] The treaty was similar to the first peace offer, but excluded the rebel clergy, whose lands and appointments remained forfeit; it included a promise, however, that Louis’ followers would be allowed to enjoy their traditional liberties and customs, referring back to the Charter of 1216.[85] Louis left England as agreed and joined the Albigensian Crusade in the south of France, bringing the war to an end.[81]

A great council was called in October and November to take stock of the post-war situation; this council is thought to have formulated and issued the Charter of 1217.[86] The charter resembled that of 1216, although some additional clauses were added to protect the rights of the barons over their feudal subjects, and the restrictions on the Crown’s ability to levy taxation were watered down.[87] There remained a range of disagreements around the management of the royal forests, which involved a special legal system that had resulted in a source of considerable royal revenue; complaints existed over both the implementation of these courts, and the geographic boundaries of the royal forests.[88] A complementary charter, the Charter of the Forest, was created, pardoning existing forest offences, imposing new controls over the forest courts, and establishing a review of the forest boundaries.[88] To distinguish the two charters, the term magna carta libertatum, “the great charter of liberties”, was used by the scribes to refer to the larger document, which in time became known simply as Magna Carta.[89][90]

Great Charter of 1225

Magna Carta became increasingly embedded into English political life during Henry III’s minority.[91] As the King grew older, his government slowly began to recover from the civil war, regaining control of the counties and beginning to raise revenue once again, taking care not to overstep the terms of the charters.[92] Henry remained a minor and his government’s legal ability to make permanently binding decisions on his behalf was limited. In 1223, the tensions over the status of the charters became clear in the royal court, when Henry’s government attempted to reassert its rights over its properties and revenues in the counties, facing resistance from many communities that argued—if sometimes incorrectly—that the charters protected the new arrangements.[93][94] This resistance resulted in an argument between Archbishop Langton and William Brewer over whether the King had any duty to fulfil the terms of the charters, given that he had been forced to agree to them.[95] On this occasion, Henry gave oral assurances that he considered himself bound by the charters, enabling a royal inquiry into the situation in the counties to progress.[96]

Two years later, the question of Henry’s commitment to the charters re-emerged, when Louis VIII of France invaded Henry’s remaining provinces in France, Poitou and Gascony.[97][98] Henry’s army in Poitou was under-resourced, and the province quickly fell.[99] It became clear that Gascony would also fall unless reinforcements were sent from England.[100] In early 1225, a great council approved a tax of £40,000 to dispatch an army, which quickly retook Gascony.[101][102] In exchange for agreeing to support Henry, the barons demanded that the King reissue Magna Carta and the Charter of the Forest.[103][104] The content was almost identical to the 1217 versions, but in the new versions, the King declared that the charters were issued of his own “spontaneous and free will” and confirmed them with the royal seal, giving the new Great Charter and the Charter of the Forest of 1225 much more authority than the previous versions.[105][104]

The barons anticipated that the King would act in accordance with these charters, subject to the law and moderated by the advice of the nobility.[106][107] Uncertainty continued, and in 1227, when he was declared of age and able to rule independently, Henry announced that future charters had to be issued under his own seal.[108][109] This brought into question the validity of the previous charters issued during his minority, and Henry actively threatened to overturn the Charter of the Forest unless the taxes promised in return for it were actually paid.[108][109] In 1253, Henry confirmed the charters once again in exchange for taxation.[110]

Henry placed a symbolic emphasis on rebuilding royal authority, but his rule was relatively circumscribed by Magna Carta.[111][65] He generally acted within the terms of the charters, which prevented the Crown from taking extrajudicial action against the barons, including the fines and expropriations that had been common under his father, John.[111][65] The charters did not address the sensitive issues of the appointment of royal advisers and the distribution of patronage, and they lacked any means of enforcement if the King chose to ignore them.[112] The inconsistency with which he applied the charters over the course of his rule alienated many barons, even those within his own faction.[65]

Despite the various charters, the provision of royal justice was inconsistent and driven by the needs of immediate politics: sometimes action would be taken to address a legitimate baronial complaint, while on other occasions the problem would simply be ignored.[113] The royal courts, which toured the country to provide justice at the local level, typically for lesser barons and the gentry claiming grievances against major lords, had little power, allowing the major barons to dominate the local justice system.[114] Henry’s rule became lax and careless, resulting in a reduction in royal authority in the provinces and, ultimately, the collapse of his authority at court.[114][65]

In 1258, a group of barons seized power from Henry in a coup d’état, citing the need to strictly enforce Magna Carta and the Charter of the Forest, creating a new baronial-led government to advance reform through the Provisions of Oxford.[115] The barons were not militarily powerful enough to win a decisive victory, and instead appealed to Louis IX of France in 1263–1264 to arbitrate on their proposed reforms. The reformist barons argued their case based on Magna Carta, suggesting that it was inviolable under English law and that the King had broken its terms.[116]

Louis came down firmly in favour of Henry, but the French arbitration failed to achieve peace as the rebellious barons refused to accept the verdict. England slipped back into the Second Barons’ War, which was won by Henry’s son, Prince Edward. Edward also invoked Magna Carta in advancing his cause, arguing that the reformers had taken matters too far and were themselves acting against Magna Carta.[117] In a conciliatory gesture after the barons had been defeated, in 1267 Henry issued the Statute of Marlborough, which included a fresh commitment to observe the terms of Magna Carta.[118]

King Edward I reissued the Charters of 1225 in 1297 in return for a new tax.[120] It is this version which remains in statute today, although with most articles now repealed.[121][122]

The Confirmatio Cartarum (Confirmation of Charters) was issued in Norman French by Edward I in 1297.[123] Edward, needing money, had taxed the nobility, and they had armed themselves against him, forcing Edward to issue his confirmation of Magna Carta and the Forest Charter to avoid civil war.[124] The nobles had sought to add another document, the De Tallagio, to Magna Carta. Edward I’s government was not prepared to concede this, they agreed to the issuing of the Confirmatio, confirming the previous charters and confirming the principle that taxation should be by consent,[120] although the precise manner of that consent was not laid down.[125]

A passage mandates that copies shall be distributed in “cathedral churches throughout our realm, there to remain, and shall be read before the people two times by the year”,[126] hence the presence of a copy during the month of May 2014 at St Edmundsbury Cathedral,[127][128][129] and the permanent installation of a copy in Salisbury Cathedral.[130] In the Confirmation’s second article, it is confirmed that

if any judgement be given from henceforth contrary to the points of the charters aforesaid by the justices, or by any other our ministers that hold plea before them against the points of the charters, it shall be undone, and holden for nought.[131][132]

With the reconfirmation of the Charters in 1300, an additional document was granted, the Articuli super Cartas (The Articles upon the Charters).[133] It was composed of 17 articles and sought in part to deal with the problem of enforcing the Charters. Magna Carta and the Forest Charter were to be issued to the sheriff of each country, and should be read four times a year at the meetings of the county courts. Each county should have a committee of three men who could hear complaints about violations of the Charters.[134]

Pope Clement V continued the papal policy of supporting monarchs (who ruled by divine grace) against any claims in Magna Carta which challenged the King’s rights, and annulled the Confirmatio Cartarum in 1305. Edward I interpreted Clement V’s papal bull annulling the Confirmatio Cartarum as effectively applying to the Articuli super Cartas, although the latter was not specifically mentioned.[135] In 1306 Edward I took the opportunity given by the Pope’s backing to reassert forest law over large areas which had been “disafforested”. Both Edward and the Pope were accused by some contemporary chroniclers of “perjury”, and it was suggested by Robert McNair Scott that Robert the Bruce refused to make peace with Edward I’s son, Edward II, in 1312 with the justification: “How shall the king of England keep faith with me, since he does not observe the sworn promises made to his liege men…”[136][137]

Magna Carta’s influence on English medieval law

The Great Charter was referred to in legal cases throughout the medieval period. For example, in 1226, the knights of Lincolnshire argued that their local sheriff was changing customary practice regarding the local courts, “contrary to their liberty which they ought to have by the charter of the lord king”.[138] In practice, cases were not brought against the King for breach of Magna Carta and the Forest Charter, but it was possible to bring a case against the King’s officers, such as his sheriffs, using the argument that the King’s officers were acting contrary to liberties granted by the King in the charters.[139]

In addition, medieval cases referred to the clauses in Magna Carta which dealt with specific issues such as wardship and dower, debt collection, and keeping rivers free for navigation.[140] Even in the 13th century, some clauses of Magna Carta rarely appeared in legal cases, either because the issues concerned were no longer relevant, or because Magna Carta had been superseded by more relevant legislation. By 1350 half the clauses of Magna Carta were no longer actively used.[141]

14th–15th centuries

During the reign of King Edward III six measures, later known as the Six Statutes, were passed between 1331 and 1369. They sought to clarify certain parts of the Charters. In particular the third statute, in 1354, redefined clause 29, with “free man” becoming “no man, of whatever estate or condition he may be”, and introduced the phrase “due process of law” for “lawful judgement of his peers or the law of the land”.[142]

Between the 13th and 15th centuries Magna Carta was reconfirmed 32 times according to Sir Edward Coke, and possibly as many as 45 times.[143][144] Often the first item of parliamentary business was a public reading and reaffirmation of the Charter, and, as in the previous century, parliaments often exacted confirmation of it from the monarch.[144] The Charter was confirmed in 1423 by King Henry VI.[145][146][147]

By the mid-15th century, Magna Carta ceased to occupy a central role in English political life, as monarchs reasserted authority and powers which had been challenged in the 100 years after Edward I’s reign.[148] The Great Charter remained a text for lawyers, particularly as a protector of property rights, and became more widely read than ever as printed versions circulated and levels of literacy increased.[149]

16th century

During the 16th century, the interpretation of Magna Carta and the First Barons’ War shifted.[150] Henry VII took power at the end of the turbulent Wars of the Roses, followed by Henry VIII, and extensive propaganda under both rulers promoted the legitimacy of the regime, the illegitimacy of any sort of rebellion against royal power, and the priority of supporting the Crown in its arguments with the Papacy.[151]

Tudor historians rediscovered the Barnwell chronicler, who was more favourable to King John than other 13th-century texts, and, as historian Ralph Turner describes, they “viewed King John in a positive light as a hero struggling against the papacy”, showing “little sympathy for the Great Charter or the rebel barons”.[152] Pro-Catholic demonstrations during the 1536 uprising cited Magna Carta, accusing the King of not giving it sufficient respect.[153]

The first mechanically printed edition of Magna Carta was probably the Magna Carta cum aliis Antiquis Statutis of 1508 by Richard Pynson, although the early printed versions of the 16th century incorrectly attributed the origins of Magna Carta to Henry III and 1225, rather than to John and 1215, and accordingly worked from the later text.[154][155][156] An abridged English-language edition was published by John Rastell in 1527 and, in 1534, George Ferrers published the first unabridged English-language edition of Magna Carta, dividing the Charter into 37 numbered clauses.[157]

At the end of the 16th century, there was an upsurge in antiquarian interest in England.[153] This work concluded that there was a set of ancient English customs and laws, temporarily overthrown by the Norman invasion of 1066, which had then been recovered in 1215 and recorded in Magna Carta, which in turn gave authority to important 16th century legal principles.[158][153][159] Modern historians note that although this narrative was fundamentally incorrect—many refer to it as a “myth” – it took on great importance among the legal historians of the time.[159][d]

The antiquarian William Lambarde, for example, published what he believed were the Anglo-Saxon and Norman law codes, tracing the origins of the 16th-century English Parliament back to this period, albeit misinterpreting the dates of many documents concerned.[158] Francis Bacon argued that clause 39 of Magna Carta was the basis of the 16th-century jury system and judicial processes.[164] Antiquarians Robert Beale, James Morice, and Richard Cosin argued that Magna Carta was a statement of liberty and a fundamental, supreme law empowering English government.[165] Those who questioned these conclusions, including the Member of Parliament Arthur Hall, faced sanctions.[166][167]

17th–18th centuries

Political tensions

In the early 17th century, Magna Carta became increasingly important as a political document in arguments over the authority of the English monarchy.[168] James I and Charles I both propounded greater authority for the Crown, justified by the doctrine of the divine right of kings, and Magna Carta was cited extensively by their opponents to challenge the monarchy.[161]

Magna Carta, it was argued, recognised and protected the liberty of individual Englishmen, made the King subject to the common law of the land, formed the origin of the trial by jury system, and acknowledged the ancient origins of Parliament: because of Magna Carta and this ancient constitution, an English monarch was unable to alter these long-standing English customs.[161][168][169][170] Although the arguments based on Magna Carta were historically inaccurate, they nonetheless carried symbolic power, as the charter had immense significance during this period; antiquarians such as Sir Henry Spelman described it as “the most majestic and a sacrosanct anchor to English Liberties”.[161][168][159]

Sir Edward Coke was a leader in using Magna Carta as a political tool during this period. Still working from the 1225 version of the text—the first printed copy of the 1215 charter only emerged in 1610 – Coke spoke and wrote about Magna Carta repeatedly.[159] His work was challenged at the time by Lord Ellesmere, and modern historians such as Ralph Turner and Claire Breay have critiqued Coke as “misconstruing” the original charter “anachronistically and uncritically”, and taking a “very selective” approach to his analysis.[161][171] More sympathetically, J. C. Holt noted that the history of the charters had already become “distorted” by the time Coke was carrying out his work.[172]

In 1621, a bill was presented to Parliament to renew Magna Carta; although this bill failed, lawyer John Selden argued during Darnell’s Case in 1627 that the right of habeas corpus was backed by Magna Carta.[173][174] Coke supported the Petition of Right in 1628, which cited Magna Carta in its preamble, attempting to extend the provisions, and to make them binding on the judiciary.[175][176] The monarchy responded by arguing that the historical legal situation was much less clear-cut than was being claimed, restricted the activities of antiquarians, arrested Coke for treason, and suppressed his proposed book on Magna Carta.[174][177] Charles initially did not agree to the Petition of Right, and refused to confirm Magna Carta in any way that would reduce his independence as King.[178][179]

England descended into civil war in the 1640s, resulting in Charles I’s execution in 1649. Under the republic that followed, some questioned whether Magna Carta, an agreement with a monarch, was still relevant.[180] Oliver Cromwell, the Lord Protector, disdained Magna Carta, at one point describing it as “Magna Farta” to a defendant who sought to rely on it; nevertheless, he accepted some limits on his powers, agreeing to rule with the advice and consent of his council.[181][182]

The radical groups that flourished during this period held differing opinions of Magna Carta. The Levellers rejected history and law as presented by their contemporaries, holding instead to an “anti-Normanism” viewpoint.[183] John Lilburne, for example, argued that Magna Carta contained only some of the freedoms that had supposedly existed under the Anglo-Saxons before being crushed by the Norman yoke.[184] The Leveller Richard Overton described the charter as “a beggarly thing containing many marks of intolerable bondage”.[185] Both saw Magna Carta as a useful declaration of liberties that could be used against governments they disagreed with.[186] Gerrard Winstanley, the leader of the more extreme Diggers, stated “the best lawes that England hath, [viz., the Magna Carta] were got by our Forefathers importunate petitioning unto the kings that still were their Task-masters; and yet these best laws are yoaks and manicles, tying one sort of people to be slaves to another; Clergy and Gentry have got their freedom, but the common people still are, and have been left servants to work for them.”[187][188]

Glorious Revolution

The first attempt at a proper historiography was undertaken by Robert Brady,[189] who refuted the supposed antiquity of Parliament and belief in the immutable continuity of the law. Brady realised that the liberties of the Charter were limited and argued that the liberties were the grant of the King. By putting Magna Carta in historical context, he cast doubt on its contemporary political relevance;[190] his historical understanding did not survive the Glorious Revolution, which, according to the historian J. G. A. Pocock, “marked a setback for the course of English historiography.”[191]

According to the Whig interpretation of history, the Glorious Revolution was an example of the reclaiming of ancient liberties. Reinforced with Lockean concepts, the Whigs believed England’s constitution to be a social contract, based on documents such as Magna Carta, the Petition of Right, and the Bill of Rights.[192] Ideas about the nature of law in general were beginning to change. In 1716, the Septennial Act was passed, which had a number of consequences. First, it showed that Parliament no longer considered its previous statutes unassailable, as it provided for a maximum parliamentary term of seven years, whereas the Triennial Act (1694) (enacted less than a quarter of a century previously) had provided for a maximum term of three years.[193]

It also greatly extended the powers of Parliament. Under this new constitution, monarchical absolutism was replaced by parliamentary supremacy. It was quickly realised that Magna Carta stood in the same relation to the King-in-Parliament as it had to the King without Parliament. This supremacy would be challenged by the likes of Granville Sharp. Sharp regarded Magna Carta as a fundamental part of the constitution, and maintained that it would be treason to repeal any part of it. He also held that the Charter prohibited slavery.[193]

Sir William Blackstone published a critical edition of the 1215 Charter in 1759, and gave it the numbering system still used today.[194] In 1763, Member of Parliament John Wilkes was arrested for writing an inflammatory pamphlet, No. 45, 23 April 1763; he cited Magna Carta continually.[195] Lord Camden denounced the treatment of Wilkes as a contravention of Magna Carta.[196] Thomas Paine, in his Rights of Man, would disregard Magna Carta and the Bill of Rights on the grounds that they were not a written constitution devised by elected representatives.[197]

Use in the Thirteen Colonies and the United States

When English colonists left for the New World, they brought royal charters that established the colonies. The Massachusetts Bay Company charter, for example, stated that the colonists would “have and enjoy all liberties and immunities of free and natural subjects.”[198] The Virginia Charter of 1606, which was largely drafted by Sir Edward Coke, stated that the colonists would have the same “liberties, franchises and immunities” as people born in England.[199] The Massachusetts Body of Liberties contained similarities to clause 29 of Magna Carta; when drafting it, the Massachusetts General Court viewed Magna Carta as the chief embodiment of English common law.[200] The other colonies would follow their example. In 1638, Maryland sought to recognise Magna Carta as part of the law of the province, but the request was denied by Charles I.[201]

In 1687, William Penn published The Excellent Privilege of Liberty and Property: being the birth-right of the Free-Born Subjects of England, which contained the first copy of Magna Carta printed on American soil. Penn’s comments reflected Coke’s, indicating a belief that Magna Carta was a fundamental law.[202] The colonists drew on English law books, leading them to an anachronistic interpretation of Magna Carta, believing that it guaranteed trial by jury and habeas corpus.[203]

The development of parliamentary supremacy in the British Isles did not constitutionally affect the Thirteen Colonies, which retained an adherence to English common law, but it directly affected the relationship between Britain and the colonies.[204] When American colonists fought against Britain, they were fighting not so much for new freedom, but to preserve liberties and rights that they believed to be enshrined in Magna Carta.[205]

In the late 18th century, the United States Constitution became the supreme law of the land, recalling the manner in which Magna Carta had come to be regarded as fundamental law.[205] The Constitution’s Fifth Amendment guarantees that “no person shall be deprived of life, liberty, or property, without due process of law”, a phrase that was derived from Magna Carta.[206] In addition, the Constitution included a similar writ in the Suspension Clause, Article 1, Section 9: “The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion, the public safety may require it.”[207]

Each of these proclaim that no person may be imprisoned or detained without evidence that he or she committed a crime. The Ninth Amendment states that “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” The writers of the U.S. Constitution wished to ensure that the rights they already held, such as those that they believed were provided by Magna Carta, would be preserved unless explicitly curtailed.[208][209]

The Supreme Court of the United States has explicitly referenced Lord Coke‘s analysis of Magna Carta as an antecedent of the Sixth Amendment’s right to a speedy trial.[210]

19th–21st centuries

Initially, the Whig interpretation of Magna Carta and its role in constitutional history remained dominant during the 19th century. The historian William Stubbs‘s Constitutional History of England, published in the 1870s, formed the high-water mark of this view.[211] Stubbs argued that Magna Carta had been a major step in the shaping of the English nation, and he believed that the barons at Runnymede in 1215 were not just representing the nobility, but the people of England as a whole, standing up to a tyrannical ruler in the form of King John.[211][212]

This view of Magna Carta began to recede. The late-Victorian jurist and historian Frederic William Maitland provided an alternative academic history in 1899, which began to return Magna Carta to its historical roots.[213] In 1904, Edward Jenks published an article entitled “The Myth of Magna Carta”, which undermined the traditionally accepted view of Magna Carta.[214] Historians such as Albert Pollard agreed with Jenks in concluding that Edward Coke had largely “invented” the myth of Magna Carta in the 17th century; these historians argued that the 1215 charter had not referred to liberty for the people at large, but rather to the protection of baronial rights.[215]

This view also became popular in wider circles, and in 1930 Sellar and Yeatman published their parody on English history, 1066 and All That, in which they mocked the supposed importance of Magna Carta and its promises of universal liberty: “Magna Charter was therefore the chief cause of Democracy in England, and thus a Good Thing for everyone (except the Common People)”.[216][217]

In many literary representations of the medieval past, however, Magna Carta remained a foundation of English national identity. Some authors used the medieval roots of the document as an argument to preserve the social status quo, while others pointed to Magna Carta to challenge perceived economic injustices.[213] The Baronial Order of Magna Charta was formed in 1898 to promote the ancient principles and values felt to be displayed in Magna Carta.[218] The legal profession in England and the United States continued to hold Magna Carta in high esteem; they were instrumental in forming the Magna Carta Society in 1922 to protect the meadows at Runnymede from development in the 1920s, and in 1957, the American Bar Association erected the Magna Carta Memorial at Runnymede.[206][219][220] The prominent lawyer Lord Denning described Magna Carta in 1956 as “the greatest constitutional document of all times – the foundation of the freedom of the individual against the arbitrary authority of the despot”.[221]

Repeal of articles and constitutional influence

Radicals such as Sir Francis Burdett believed that Magna Carta could not be repealed,[222] but in the 19th century clauses which were obsolete or had been superseded began to be repealed. The repeal of clause 26 in 1829, by the Offences against the Person Act 1828 (9 Geo. 4 c. 31 s. 1),[223] was the first time a clause of Magna Carta was repealed. Over the next 140 years, nearly the whole charter was repealed,[224] leaving just clauses 1, 9, and 29 still in force after 1969. Most of the clauses were repealed in England and Wales by the Statute Law Revision Act 1863, and in Ireland by the Statute Law (Ireland) Revision Act 1872.[223]

Many later attempts to draft constitutional forms of government trace their lineage back to Magna Carta. The British dominions, Australia and New Zealand,[225] Canada[226] (except Quebec), and formerly the Union of South Africa and Southern Rhodesia, reflected the influence of Magna Carta in their laws, and the Charter’s effects can be seen in the laws of other states that evolved from the British Empire.[227]

Modern legacy

Magna Carta continues to have a powerful iconic status in British society, being cited by politicians and lawyers in support of constitutional positions.[221][228] Its perceived guarantee of trial by jury and other civil liberties, for example, led to Tony Benn‘s reference to the debate in 2008 over whether to increase the maximum time terrorism suspects could be held without charge from 28 to 42 days as “the day Magna Carta was repealed”.[229] Although rarely invoked in court in the modern era, in 2012 the Occupy London protestors attempted to use Magna Carta in resisting their eviction from St. Paul’s Churchyard by the City of London. In his judgment the Master of the Rolls gave this short shrift, noting somewhat drily that although clause 29 was considered by many the foundation of the rule of law in England, he did not consider it directly relevant to the case, and the two other surviving clauses actually concerned the rights of the Church and the City of London.[230][231]

Magna Carta carries little legal weight in modern Britain, as most of its clauses have been repealed and relevant rights ensured by other statutes, but the historian James Holt remarks that the survival of the 1215 charter in national life is a “reflexion of the continuous development of English law and administration” and symbolic of the many struggles between authority and the law over the centuries.[232] The historian W. L. Warren has observed that “many who knew little and cared less about the content of the Charter have, in nearly all ages, invoked its name, and with good cause, for it meant more than it said”.[233]

It also remains a topic of great interest to historians; Natalie Fryde characterised the charter as “one of the holiest of cows in English medieval history”, with the debates over its interpretation and meaning unlikely to end.[212] In many ways still a “sacred text”, Magna Carta is generally considered part of the uncodified constitution of the United Kingdom; in a 2005 speech, the Lord Chief Justice of England and Wales, Lord Woolf, described it as the “first of a series of instruments that now are recognised as having a special constitutional status”.[234][182]

The document also continues to be honoured in the United States as an antecedent of the United States Constitution and Bill of Rights.[235] In 1976, the UK lent one of four surviving originals of the 1215 Magna Carta to the United States for their bicentennial celebrations and also donated an ornate display case for it. The original was returned after one year, but a replica and the case are still on display in the United States Capitol Crypt in Washington, D.C.[236]

Celebration of the 800th anniversary

The plan for four surviving original copies of Magna Carta to be brought together in 2015, at the British Library in collaboration with Lincoln Cathedral and Salisbury Cathedral and supported by the law firm Linklaters

The 800th anniversary of the original charter occurred on 15 June 2015, and organisations and institutions planned celebratory events.[237] The British Library brought together the four existing copies of the 1215 manuscript on 3 February 2015 for a special exhibition.[238] British artist Cornelia Parker was commissioned to create a new artwork, Magna Carta (An Embroidery), which was unveiled at the British Library on 15 May 2015 and will remain on display until 24 July.[239] The artwork is a copy of an earlier version of this Wikipedia page (as it appeared on the document’s 799th anniversary, 15 June 2014), embroidered into the form of a tapestry.[240]

The copy held by Lincoln Cathedral was exhibited in the Law Library of Congress in Washington, D.C., from November 2014 until January 2015.[241] A new visitor centre at Lincoln Castle will also be opened for the anniversary.[242] The Royal Mint will release a commemorative two-pound coin.[243]

In 2014, Bury St Edmunds in Suffolk celebrated the 800th anniversary of the barons’ Charter of Liberties, said to have been secretly agreed there in November 1214.[244]

Content

Physical design

Numerous copies, known as exemplifications, were made of the various charters, and many of them still survive.[245] The documents were written in abbreviated Latin in clear handwriting, using quill pens on sheets of vellum made from sheep skin, approximately 15 by 20 inches (380 by 510 mm) across.[246][247] They were sealed with the royal great seal by an official called the spigurnel, equipped with a special seal press, using beeswax and resin.[248][247] There were no signatures on the charter of 1215, and the barons present did not attach their own seals to it.[249] The charters were not numbered or divided into paragraphs or separate clauses at the time; the numbering system used today was introduced by the jurist Sir William Blackstone in 1759.[194]

Exemplifications

At least 13 original copies of the 1215 charter were issued by the royal chancery at the time, seven in the first tranche distributed on 24 June and another six later; they were sent to county sheriffs and bishops, who would probably have been charged for the privilege.[250] Variations would have existed between each of these copies and there was probably no single “master copy”.[251] Of these documents, only four survive, all held in the UK—two in the British Library, one by Lincoln Cathedral, and one in Salisbury Cathedral.[252] Each of these versions is slightly different in size and text, and each is considered by historians to be equally authoritative.[253]

The two 1215 charters held by the British Library, known as Cotton MS. Augustus II.106 and Cotton Charter XIII.31a, were acquired by the antiquarian Sir Robert Cotton in the 17th century.[254] One of these was originally found by Humphrey Wyems, a London lawyer, who may have discovered it in a tailor’s shop.[255] The other was found in Dover Castle in 1630 by Sir Edward Dering. The Dering charter is usually identified as the copy originally sent to the Cinque Ports in 1215.[256] (In 2015 it was announced that David Carpenter had found Dering’s copy to be identical to a 1290s transcription made from Canterbury Cathedral‘s 1215 copy and so he suggests that the Dering copy’s destination was the Cathedral rather than the Cinque Ports.[257][258]) This copy was badly damaged in a fire in Ashburnham House in 1731, however, and although a facsimile was made of it in 1733, the parchment itself is now faded and largely illegible.[259] This is the only surviving 1215 copy to still have its great seal attached, although badly melted in the fire.[260][261]

Lincoln Cathedral’s original copy of the 1215 charter has been held by the county since 1215; it was displayed in the Common Chamber in the cathedral before being moved to another building in 1846.[262][252] It was being displayed at the 1939 World Fair in New York when the Second World War broke out, and it spent the majority of the war in Fort Knox for safety.[263] Winston Churchill wanted to gift the charter to the American people, hoping that this would encourage the United States, then neutral, to enter the war against the Axis powers, but the cathedral was unwilling and the plans were dropped.[263]

The copy was returned to England and put on display in 1976 as part of the cathedral’s medieval library.[262] It was subsequently displayed in San Francisco, and was taken out of display for a time to undergo conservation in preparation for another visit to the United States, where it was exhibited in 2007 at the Contemporary Art Center of Virginia and the National Constitution Center in Philadelphia.[262][264][265] The document returned to New York to be displayed at the Fraunces Tavern Museum during 2009.[266]

The fourth copy, owned by Salisbury Cathedral, was first given in 1215 to Old Sarum, which was the original cathedral in the region.[267] Rediscovered by the cathedral in 1812, it has remained in Salisbury throughout its history, except when being taken off-site for restoration work.[259][268] It is possibly the best preserved of the four, although small pin holes can be seen in the parchment from where it was once pinned up.[268][269][270] The handwriting on this version is different from that of the other three, suggesting that it was not written by a royal scribe but rather by a member of the cathedral staff, who then had it exemplified by the royal court.[259][245]

Later exemplifications

Other early versions of the charters survive today. Only one exemplification of the 1216 charter survives, held in Durham Cathedral.[271] Four copies of the 1217 charter exist; three of these are held by the Bodleian Library in Oxford and one by Hereford Cathedral.[271][272] Hereford’s copy is occasionally displayed alongside the Mappa Mundi in the cathedral’s chained library and has survived along with a small document called the Articuli super Cartas that was sent along with the charter, telling the sheriff of the county how to observe the conditions outlined in the document.[273] One of the Bodleian’s copies was displayed at San Francisco’s California Palace of the Legion of Honor in 2011.[274]

Four exemplifications of the 1225 charter survive: the British Library holds one, which was preserved at Lacock Abbey until 1945; Durham Cathedral also holds a copy, with the Bodleian Library holding a third.[272][275][276] The fourth copy of the 1225 exemplification was held by the museum of the Public Record Office and is now held by The National Archives.[277][278] The Society of Antiquaries also holds a draft of the 1215 charter (discovered in 2013 in a late 13th century register from Peterborough Abbey), a copy of the 1225 third re-issue (within an early 14th century collection of statutes) and a roll copy of the 1225 reissue.[279]

Only two exemplifications of Magna Carta are held outside England, both from 1297. One of these was purchased in 1952 by the Australian Government for £12,500 from King’s School, Bruton, England.[280] This copy is now on display in the Members’ Hall of Parliament House, Canberra.[281] The second was originally held by the Brudenell family, earls of Cardigan, before they sold it in 1984 to the Perot Foundation in the U.S.A., which in 2007 sold it to U.S. businessman David Rubenstein for US$21.3 million.[282][283][284] Rubenstein commented “I have always believed that this was an important document to our country, even though it wasn’t drafted in our country. I think it was the basis for the Declaration of Independence and the basis for the Constitution”. This exemplification is now on permanent loan to the National Archives in Washington, D.C.[285][286] Only two other 1297 exemplifications survive,[287] one of which is held in the UK’s National Archives.[288]

Seven copies of the 1300 exemplification by Edward I survive,[287][289] in Faversham,[290] Oriel College, Oxford, the Bodleian Library, Durham Cathedral, Westminster Abbey, the City of London (held in the archives at the London Guildhall[291]) and Sandwich (held in the Kent County Council archives). The Sandwich copy was rediscovered in early 2015 in a Victorian scrapbook in the town archives of Sandwich, Kent, one of the Cinque Ports.[289] In the case of the Sandwich and Oriel College exemplifications, the copies of the Charter of the Forest originally issued with them also survive.

Clauses

Most of the 1215 charter and later versions sought to govern the feudal rights of the Crown over the barons.[292] Under the Angevin kings, and in particular during John’s reign, the rights of the King had frequently been used inconsistently, often in an attempt to maximise the royal income from the barons. Feudal relief was one way that a king could demand money, and clauses 2 and 3 fixed the fees payable when an heir inherited an estate or when a minor came of age and took possession of his lands.[292] Scutage was a form of medieval taxation; all knights and nobles owed military service to the Crown in return for their lands, which theoretically belonged to the King, but many preferred to avoid this service and offer money instead; the Crown often used the cash to pay for mercenaries.[293] The rate of scutage that should be payable, and the circumstances under which it was appropriate for the King to demand it, was uncertain and controversial; clauses 12 and 14 addressed the management of the process.[292]

The English judicial system had altered considerably over the previous century, with the royal judges playing a larger role in delivering justice across the country. John had used his royal discretion to extort large sums of money from the barons, effectively taking payment to offer justice in particular cases, and the role of the Crown in delivering justice had become politically sensitive among the barons. Clauses 39 and 40 demanded due process be applied in the royal justice system, while clause 45 required that the King appoint knowledgeable royal officials to the relevant roles.[294] Although these clauses did not have any special significance in the original charter, this part of Magna Carta became singled out as particularly important in later centuries.[294] In the United States, for example, the Supreme Court of California interpreted clause 45 in 1974 as establishing a requirement in common law that a defendant faced with the potential of incarceration is entitled to a trial overseen by a legally trained judge.[295]

Royal forests were economically important in medieval England and were both protected and exploited by the Crown, supplying the King with hunting grounds, raw materials, and money.[296][297] They were subject to special royal jurisdiction and the resulting forest law was, according to the historian Richard Huscroft, “harsh and arbitrary, a matter purely for the King’s will”.[296] The size of the forests had expanded under the Angevin kings, an unpopular development.[298]

The 1215 charter had several clauses relating to the royal forests; clauses 47 and 48 promised to deforest the lands added to the forests under John and investigate the use of royal rights in this area, but notably did not address the forestation of the previous kings, while clause 53 promised some form of redress for those affected by the recent changes, and clause 44 promised some relief from the operation of the forest courts.[299] Neither Magna Carta nor the subsequent Charter of the Forest proved entirely satisfactory as a way of managing the political tensions around the operation of the royal forests.[299]

Some of the clauses addressed wider economic issues. The concerns of the barons over the treatment of their debts to Jewish moneylenders, who occupied a special position in medieval England and were by tradition under the King’s protection, were addressed by clauses 10 and 11.[300] The charter concluded this section with the phrase “debts owing to other than Jews shall be dealt with likewise”, so it is debatable to what extent the Jews were being singled out by these clauses.[301] Some issues were relatively specific, such as clause 33 which ordered the removal of all fishing weirs—an important and growing source of revenue at the time—from England’s rivers.[299]

The role of the English Church had been a matter for great debate in the years prior to the 1215 charter. The Norman and Angevin kings had traditionally exercised a great deal of power over the church within their territories. From the 1040s onwards successive popes had emphasised the importance of the church being governed more effectively from Rome, and had established an independent judicial system and hierarchical chain of authority.[302] After the 1140s, these principles had been largely accepted within the English church, even if accompanied by an element of concern about centralising authority in Rome.[303][304]

These changes brought the customary rights of lay rulers such as John over ecclesiastical appointments into question.[303] As described above, John had come to a compromise with Pope Innocent III in exchange for his political support for the King, and clause 1 of Magna Carta prominently displayed this arrangement, promising the freedoms and liberties of the church.[292] The importance of this clause may also reflect the role of Archbishop Langton in the negotiations: Langton had taken a strong line on this issue during his career.[292]

Clauses remaining in English law

Only three clauses of Magna Carta still remain on statute in England and Wales.[228] These clauses concern the freedom of the English Church, the “ancient liberties” of the City of London (clause 13 in the 1215 charter, clause 9 in the 1297 statute), and a right to due legal process (clauses 39 and 40 in the 1215 charter, clause 29 in the 1297 statute).[228] In detail, these clauses (using the numbering system from the 1297 statute) state that:

  • FIRST, We have granted to God, and by this our present Charter have confirmed, for Us and our Heirs for ever, that the Church of England shall be free, and shall have all her whole Rights and Liberties inviolable. We have granted also, and given to all the Freemen of our Realm, for Us and our Heirs for ever, these Liberties under-written, to have and to hold to them and their Heirs, of Us and our Heirs for ever.
  • THE City of London shall have all the old Liberties and Customs which it hath been used to have. Moreover We will and grant, that all other Cities, Boroughs, Towns, and the Barons of the Five Ports, as with all other Ports, shall have all their Liberties and free Customs.
  • NO Freeman shall be taken or imprisoned, or be disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed; nor will We not pass upon him, nor condemn him, but by lawful judgment of his Peers, or by the Law of the land. We will sell to no man, we will not deny or defer to any man either Justice or Right.[223]

Usage of the definite article and spelling

Magna Carta was given its name in Latin, a language which has no direct, consistent correlate of the English definite article “the”. As a result, the usual academic convention is to refer to the document in English without the article as “Magna Carta” rather than “the Magna Carta”.[309] Nonetheless, “the Magna Carta” is frequently used in both academic and non-academic speech.

Especially in the past, the document has also been referred to as “Magna Charta”, but the pronunciation was the same. “Magna Charta” is still an acceptable variant spelling recorded in many dictionaries due to continued use in some reputable sources. From the 13th to the 17th centuries, only the spelling “Magna Carta” was used. The spelling “Magna Charta” began to be used in the 18th century but never became more common despite also being used by some reputable writers.[310]

What Are the Obligations of An Insurance Company? The Basics of “Bad Faith”

“Bad faith” is the legal term for the situation where an insurance company ignores what it promised in its policy and instead acts in its own best interest instead of protecting its customer.

When an insurance company issues a policy, every state’s laws require the company to act “in good faith” to protect its customer, who pays the insurance company money in exchange for promises to be protected.  All those advertising slogans we constantly hear are designed to get us to believe that the insurance company is going to live up to all our expectations, and that they’ll be there for us when we need them:
“You’re in good hands with Allstate”

“Like a good neighbor, State Farm is there”

“Let Prudential be your rock.”

“Nationwide is on your side.”

“Responsibility. What’s your policy?” (Liberty Mutual)

“Helping People Live Healthier Lives.” (UnitedHealth)

“The Company You Keep.” (New York Life Insurance Company)

That’s what these insurance companies are promising. These companies are saying:

“When you buy a policy from us and something bad happens, we’ll live up to our promises and do the right thing to fully protect you, up to the amount of insurance you purchased.”

Sometimes, though, insurance companies don’t live up to these promises, and instead of protecting their customer, they try to protect themselves instead. When that happens, the insurance company is said to be acting “in bad faith.”

The Missouri Supreme Court recently issued a decision in a case called Scottsdale v. Addison Insurance Company that analyzed insurance companies’ obligations.  The Supreme Court stated that bad faith is “the intentional disregard of the financial interests of the insured in the hope of escaping the responsibility imposed upon the insurer by its policy.”

Here’s a simple  hypothetical example of one way an insurance company  can break its promises.  John Policyholder walks into his insurance agent’s office and tells him that he wants to buy a car insurance policy. The agent asks how much insurance he wants to buy, and adds that Missouri law requires at least $25,000 in liability coverage on a car.  Mr. Policyholder says “OK, I want a $25,000 policy.”  The agent sells him a policy issued by XYZ Insurance Company.

XYZ then mails Mr. Policyholder his policy. Most people never read their policies, because not only are they incredibly difficult to understand (even if you’re a lawyer), but the language is non-negotiable anyway.  It’s not like you can call up the insurance company and try to negotiate a better phrasing if you don’t like the wording in the policy.

To put it in really simple terms, pretty much every liability insurance basically says the same thing:
• We will fully protect you if a claim against you can be settled for $X or less;
• If a claim against you can’t be settled for $X or less, then any amount over $X is your problem; and
• If a claim is made against you, you have no authority to settle it, and only we can settle claims.

In Mr. Policyholder’s policy, the number $25,000 is inserted everywhere it says $X above. So if a claim can be settled for $25,000 or less, the insurance company is supposed to fully pay the claim and protect him.  If a claim cannot be settled for $25,000 or less, the insurance company is only going to pay the first $25,000 of any verdict issued against Mr. Policyholder.

Six months go by. Mr. Policyholder makes every monthly payment right on time, and the full amount that the insurance company asked him to pay. Mr. Policyholder lived up to every single one of his promises to the insurance company.

Then one day, Mr. Policyholder runs a red light and hits a car driven by Mr. Smith. Months after the crash, a lawyer for Mr. Smith submits a claim to XYZ Insurance Company, saying that Mr. Smith hurt his spine in this crash. The lawyer sends XYZ Insurance Company medical records showing that two months after the crash Mr. Smith had spinal surgery. Mr. Smith offers to settle all of his claims against Mr. Policyholder for the full policy limits of Mr. Policyholder’s insurance policy limits (which in this case is $25,000), but says that he’s only willing to settle for that amount if the check is delivered within the next 60 days.

What XYZ would really like to do is drag the claim out for a year or two, while they do a thorough background check and investigation. They would like to get all of Mr. Smith’s old medical records going back 20 years to see if he ever complained about back problems before this crash. They’d like to send a surveillance team out to follow Mr. Smith around for a few weeks to see if they can catch him on videotape bending over, so that they can argue that he isn’t really hurt. They’d like to put Mr. Smith under oath and have their attorney ask him all kinds of questions about his background, his prior jobs, prior injuries, etc.   they also want to drag it out because they know that the longer they can drag it out the more desperate Mr. Smith will become.  And they want to do all that because they want to try to save themselves some money.

But they don’t have time to do all that, because Mr. Smith has said the offer to settle for the policy limits is only open for a limited time. So they have to decide.  If they reject the offer to settle for $25,000 and instead successfully dispute the claim and settle it later for only $10,000, then XYZ has successfully saved itself $15,000.  XYZ gets to keep the whole $15,000, and their profits increase.

On the other hand, if XYZ rejects the offer to settle for $25,000 in hopes that they’ll unearth some good evidence to use against Mr. Smith, but their search for evidence like that is unsuccessful, they run the risk that a jury might give Mr. Smith a verdict for a whole lot more than the $25,000 he currently seeks. Of course, if that happens, XYZ will only pay $25,000 and will tell Mr. Policyholder that he needs to pay the rest of the verdict out of his own pocket.

In other words, XYZ is in a position where it can gamble with Mr. Policyholder’s assets instead of its own.  All of the upside goes to XYZ, and all of the downside is on Mr. Policyholder.

So what is an insurance company to do?

Well, if they really are a good insurance company, they’ll comply with the law requiring them to put Mr. Policyholder’s interests above their own interests, and take full responsibility for the case. It’s okay for the insurance company to reject the offer to settle in that situation, as long as they fully and completely protect Mr. Policyholder from whatever the verdict against him later might be, whether it’s $2,000 or $200,000. If they’re going to reject the offer to settle, they have to tell Mr. Policyholder in writing in advance that XYZ is going to pay 100% of the verdict, no matter how big it is, and that the policy limits don’t matter anymore.

But not all insurance companies do that. Some insurance companies are very happy to gamble with their customer’s money instead of their own.  Those companies will simply reject the settlement offer, and happily put their customer at risk.

And the fact is that most times they get away with it. The simple truth is that the average customer never really knows what’s going on with their claims and doesn’t really understand that the insurance company is shifting all the risk onto them.

This risk-shifting really only becomes clear to the customer when the whole thing blows up and a jury verdict comes in against Mr. Policyholder for an amount way more than the $25,000 policy limits. At that point, a bad insurance company will mail a $25,000 check to Mr. Smith’s lawyer and tell them to go chase down Mr. Policyholder for the rest of the verdict. Mr. Policyholder is then shocked to find out that his personal assets are on the hook for the rest of the judgment amount. XYZ tells Mr. Policyholder that it’s all his problem, not theirs, because he didn’t buy enough insurance.
So what does the law say should happen when an insurance company does this?

Let’s go back and think about just exactly what XYZ promised Mr. Policyholder. The policy says that if a claim can be settled for $25,000 or less, the company will pay it. And in this case, it could have been settled for $25,000.  That’s the key.  That necessarily means that Mr. Policyholder did buy enough insurance and that XYZ acted in bad faith.

The insurance law in Missouri and most other states says that if this happens, Mr. Policyholder can force XYZ to pay 100% of the amount of the verdict against Mr. Policyholder.  Additionally, Mr. Policyholder may get damages from XYZ for what XYZ put him through by acting in bad faith, including attorney’s fees that he may have spent suing XYZ to get them to do what they were supposed to do, the embarrassment of having his wages and bank account garnished, car re-possessed, etc.

This is just one example of how an insurance company can act in bad faith, but there are many others.    This is actually a particularly complicated area of law.

If you need help with a situation where an insurance company has not lived up to its promises, please call us at 417-823-7500 or visit our website at www.CurranLawFirm.com.