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Last Post 21 Jul 2014 12:00 PM by  James Kloss
R-13-0044 Petition to Amend Rule 67, Arizona Rules of Civil Procedure
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Joe
Posts:

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25 Feb 2014 12:56 PM
Joseph M. Leal
Cole & Leal, P.A.
420 W. Casa Grande Lakes Blvd. N.
Casa Grande, AZ 85122
(520) 836-8002
FAX (520) 836-8002
Joe@coleandleal.com
AZ Bar # 012787

I am writing in support of Petition R-13-004.

Many of my clients are ordinary, working people living paycheck to paycheck. Most often, they are up against billion dollar insurance companies that have forced matters to litigation at a time when my clients are struggling with medical expenses and lost wages occasioned by their injuries. The requirement of a cost bond under Rule 67 functions as an impediment to their access to justice, and reinforces the perception that the deck is stacked against ordinary citizens.

Over the course of my practice, I have seen many experienced trial judges recognize that the cost bond rules are fundamentally unfair and actively seek any rational basis to deny the imposition of such bonds. Given the ruling in Thiele v. City of Phoenix, 232 Ariz. 40, 301 P.3d 206 (App. 2013), I fully anticipate insurers and defense counsel to resort to such tactics with more frequency.

Subsection (e) provides little comfort to such ordinary citizens, forcing them to air their financial condition in an embarrassing and demeaning manner. The Court should simply eliminate these one-sided, discriminatory and demeaning rules.

/s/ Joseph Leal
bonniedombrowski
Posts:

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25 Feb 2014 12:58 PM
Bonnie Shore Dombrowski
Jacoby & Meyers Law Offices
2343 E. Broadway
Suite 112
Tucson,Az. 85719
520-622-2350 phone
520-622-2350 facsimile
bdombrowski@jacoby-meyersaz.com
Az Bar # 011981

Dear Justices:

I am writing in support of the petition to amend Civil Rule 67, and eliminate the requirment for persons to post bonds if they do not own real property in Arizona. It is a hurdle that lower income clients cannot meet, and closes their access to the courthouse and to justice. It also places a burden on out of state litigants that do not own property within the state. To have a two tier system, by requiring a hurdle to the non real property owner, that a real property owner does not have to submit to, is patently unfair and undermines the public's confidence in the fairness of our judicial system. It gives certain claimants access to the courthouse that can be denied to others if they cannot meet the financial requirments of a bond.

Due to the foregoing, I ask that you amend Rule 67 and eliminate the requirment of a cost bond for a claimant that does not real property within the state.

Sincerely,
Bonnie S. Dombrowski
JPL
Posts:

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25 Feb 2014 01:00 PM
John P. Leader
The Leader Law Firm
698 E. Wetmore, #330
(520) 575-9040
(520) 575-9230 fax
John@leaderlawaz.com
State Bar No. 012511

Dear Justices,

I write in support of Petition R-13-0044, which proposes changes to Ariz.R.Civ.P. 67(d) and (f). This Petition is submitted by the Arizona Association for Justice.

Rule 67(d) provides:

(d) Security for costs; when required; bond and conditions.

At any time before trial of an issue of law or fact, on motion of the defendant, supported by affidavit showing that the plaintiff is not the owner of property within the state out of which the costs could be made by
execution sale, the court shall order the plaintiff to give security for the costs of the action. The court shall fix the amount of the security, the time within which it shall be given and it shall be given upon condition that the plaintiff will pay all costs that may be adjudged against the plaintiff, and authorize judgment against the sureties,
if a written undertaking. If the plaintiff fails so to do within the time fixed by the court, the court shall order the action dismissed without notice.

Rule 67(f) exempts certain governmental entities from 67’s requirements.

These rules present a real and improper access to courts constitutional obstacle to certain plaintiffs and also makes the litigation process unfairly complicated for certain plaintiffs.
Under this rule, if a Defendant shows that a plaintiff does not own property in the State, the trial “shall” (must) require that party to post security.

In many instances, parties may not own Arizona real property because they lack the resources. Thus, Rules 67(d) and (f) would impose unconstitutional “cost bond” financial requirements only on certain plaintiffs – including those who lack the resources to own property here. These same people would also probably lack the resources to post the required security. While Rule 67(e) would provide relief to those financially unable to provide security, there is no just or sensible reason for making such plaintiffs jump through these hoops.

These rules also potentially create unnecessary work for our trial courts, whose dockets are already overly congested. These rules also create a potential for abuse by opposing counsel, who might use them as a basis to “run the clock” and bill more hours.

GMCullan
Posts:

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25 Feb 2014 01:00 PM
Gene M. Cullan
Law Offices of Cullan & Cullan, M.D. J.D.
20830 N. Tatum Blvd., Suite 360
Phoenix, Arizona 85050
(602) 200-9999
(480) 264-6658 Facsimile
CullanG@cullanmedlaw.com
AZ State Bar No. 012991

Dear Justices:

This correspondence concerns the proposed change to Rules 67(d) and 67(f) which was submitted by the Arizona Association for Justice. I have reviewed the proposed changes and am in support of Petition R-13-0044.

The proposed changes are necessary to prevent discrimination against non-property owning parties. The rules are one-sided and as such are fundamentally unfair. Accordingly, the Court should eliminate these rules in favor of the proposed changes referenced above.

Respectfully,
Gene M. Cullan
AZ State Bar No. 012991
kpearson
Posts:

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25 Feb 2014 01:36 PM
Karl S. Pearson
PEARSON LAW, PLC
4422 N Civic Center Plaza Ste 101
Scottsdale, Arizona 85251
Phone: (480) 820-1800
Fax: (480) 707-5011
kpearson@pearson-law.com
Bar No. 014594

Dear Justices:

I strongly support the proposed change to Rules 67(d) and (f) as set forth in Petition R-13-0044.

The current rule imposes an unfair and discriminatory financial burden on plaintiffs. For this reason, many defendants use the current rule as a weapon to prevent plaintiffs from obtaining justice.

I have represented many injury victims who were not fortunate enough to own real property in this state. In a large portion of those cases, the liability of the defendant was not in question. As such, there was no doubt that my clients would prevail. The issue was the amount of the recovery. Despite this, defendants have occasionally sought cost bonds in such situations. While most of the motions were denied, there have been occasions where my clients have been ordered to post bonds. In some of those cases, my clients ended up accepting unreasonably low settlement offers because they were unwilling or unable to pay thousands of dollars for the bonds.

For example, a few years ago my clients and I went to an oral argument on a motion seeking a cost bond. Before the hearing, the judge asked the parties to participate in an informal settlement conference. Settlement offers were exchanged and eventually the judge recommended that the plaintiffs accept an offer. When they refused, the judge asked the parties to go back to the courtroom where he proceeded to grant the motion for cost bond. The plaintiffs were ordered to pay several thousands of dollars or face dismissal of their claim. The case settled immediately thereafter for the offer the plaintiffs were previously unwilling to accept.

In a case I recently took over, my client filed a pro per complaint seeking to recover just $5,000 from the defendant. The defendant, who was represented by counsel, filed a motion requesting a cost bond. The motion was granted and the plaintiff was ordered to pay $4,815 before she could proceed with her $5,000 case. Fortunately, the plaintiff was able to scrape up the funds to pay the bond and was recently granted summary judgment. Ironically, my client may not be able to recover her costs as the defendant is intimating that she will file for bankruptcy.

These are just a few examples of how the current rule unfairly discriminates against plaintiffs. In my experience, the current rule is used as a weapon to force plaintiffs to abandon their claims or accept less than what they deserve.

Sincerely,

Karl S. Pearson



micklevin
Posts:

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25 Feb 2014 02:26 PM
Mick Levin
Mick Levin, P.L.C.
301 East Bethany Home Road
Suite B-140
Phoenix, AZ 85012
602-263-1233
602-230-7377 (fax)
micklevin@mlplc.com
Bar number 021891

I have read the proposed Amendment to Arizona Rules of Civil Procedure 67 and write in support of it. The current Rule requires a civil plaintiff who does not own real property in Arizona to file a bond in an amount to be determined by the Court or to show good cause why they are unable to do so.

In my experience, cost bonds are rarely requested and never granted. On the few occasions when a cost bond has been requested, it is usually made by obstreperous opposing counsel seeking to make the prosecution of a plaintiffs' case as difficult and costly as possible. When one is requested, the plaintiff usually requests a hearing and after an embarrassing examination and cross-examination, tells the Court, counsel, and anyone who happens to be watching about the meagerness of their assets.

Defendants are exempt from the requirement of a cost bond. Unless punitive damages are in question in the case, usually a plaintiff has no means prior to obtaining a judgment to inquire about the assets of a civil defendant. The cost bond requirement unfairly requires a plaintiff to go through an embarrassing process of describing their assets without any showing that those assets will ever be necessary to pay a judgment against the plaintiff.

The cost bond requirement unfairly prejudices and embarrasses plaintiffs. Therefore, I support the proposed Rule change to Rule 67.

terryjackson0
Posts:

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25 Feb 2014 02:29 PM
Terrence A. Jackson
Law Office of Terrence A. Jackson
1670 E. River Rd., Suite 200
Tucson AZ 85718
P: 520.617.0272
F: 520.382.4959
email: tjack@dakotacom.net
SBA no.: 009732

Dear Justices:

This is in suppor to Petition R-13-0044, requesting amendment to Rules 67(d)(e) & (f), requiring cost bonds by plaintiffs who cannot demonstrate ownership of property out of which an award of costs could be paid. These rules serve no legitimate purpose, as set forth in the Petition, and inordinately impact poor people. Even where Rule 67(e) provides for relief, the burden of appearing and demostrating eligibility due to lack of ability to post the bond can be overwhelming. This impingement on the ability of many people to utilize the justice system differs very little from a property ownership requirement to be eligible to vote.

In my almost 30 years of practice I have not seen these Rules used by defendants in any instance when I did not believe the sole purpose was to run the plaintiff out of the case. Likewise, in my experience there is simply no market within which to purchase such a bond. Even superscedeas bonds are impossible to get without securing the bond with cash or the equivilant. If required to post a cost bond, in almost all cases, the plaintiff will have to post cash. An injured claimant should not be denied justice because he or she cannot post several thousand, or even severa hundred, dollars with the court.

For these reasons and those set forth in Petition R-13-0044, I respectfully ask that the Supreme Court grant said Petition.
william.chick@azbar.org
Posts:

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25 Feb 2014 02:41 PM
William S. Chick
4500 N. 32nd Street, Suite 201C
Phoenix, AZ 85018
Phone: (602)954-7975
Fax: (602)954-4629
william.chick@azbar.org
State Bar # 003387

Please accept this comment in support of amending this antiquated and unfair Rule. It is currently being used as a bullying tactic by insurance company defense attorneys attempting to monkey-wrench the legitimate claims of persons who have been injured or suffered the death of a loved one. It serves no useful purpose other than to provide a basis for conjuring up billable hours that will feather the nest of the defense firms and distract otherwise deserving plaintiffs from being able to focus their efforts on pursuing their cases on the merits. In my 40 years of practice I have seen the use of this rule recur in episodic lurches of favor, then all the judges deny the relief and it crawls back into a hole for use at a later date. Get rid of it once an for all.
kkgraham
Posts:

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25 Feb 2014 03:22 PM
Kenneth K. Graham
100 N. Stone Suite 901
Tucson Az 85701
(520) 622-7494
(520) 62405583
kk@risnerandgraham.com
Arizona State Bar Number 007069

I would like to join in those that are supporting this rule change. This rule discriminates against those of us in society that are most vulnerable-someone who has had to resort to legal process in order to attempt to right a perceived wrong and who is so poor s/he has no assets. It also is fundamentally flawed in allowing a defendant to file an affidavit, which is not subject to being contested, alleging that plaintiff has insufficient property to satisfy a cost award. If plaintiff, his case is can not convince the court that he has no assets, not just that posting a bond would result in a financial burden, the case is dismissed regardless of how meritorious the claim. Claims that have no merit can be resolved rather quickly using existing mechanisms such as Rule 11, Rule 12 and Rule 56. Defendants who are awarded costs can utilize the same mechanisms plaintiff's use when they are awarded costs. When you consider the problems with this rule together with the potential for abuse, there is no question that the petition should be granted and this rule removed.

bta4369
Posts:

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25 Feb 2014 04:27 PM
Brian Allen
Udall Shumway
1138 N. Alma School Road, Suite 101
Mesa, AZ 85205
(480) 461-5335
(480) 833-9392
bta@udallshumway.com
017102

I support the proposed changes to Rule 67. Cost bonds prevent access to the judicial system by those lease financially able to protect their rights. Why do we allow our rules of civil procedure to discriminate against non-property owners? The rule should be changed to reflect what judges and practitioners have belived for years--that the rule is fundamentally unfair and likely unconstitutional.

Brian Allen
sreed
Posts:

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25 Feb 2014 04:42 PM
Steven L. Reed
O’STEEN & HARRISON, PLC
Attorneys at Law
1757 East Baseline Road
Building #3, Suite #111
Gilbert, Arizona 85233
Telephone: (480) 644-1558
Facsimile: (480) 644-1695
Email: sreed@vanosteen.com
Bar #: 006951

Dear Justices,

I have read the proposed changes to Rules 67(d) and (f) submitted by the Arizona Association for Justice and am writing in support of Petition R-13-0044.

I have represented many hundreds of plaintiffs bringing personal injury lawsuits in Arizona. Many of these injury victims did not have substantial means and they only had access to the court system due to the filing fee I advanced and the contingent nature of my fee. In all of those lawsuits, the defendant never once was uncompensated for costs owed by the plaintiff.

On occasion, the defendant’s attorney has attempted to invoke Rule 67 during litigation. In each of these cases, liability was clear and the plaintiff was ultimately successful. Rule 67 has been used more as an attempt to pressure the plaintiffs to settle their cases than to protect the costs advanced by the insurance companies. Additionally, many trial judges had ruled that Rule 67 was unconstitutional and would not enforce it. Unfortunately, the recent decision in Thiele v. City of Phoenix, 232 Ariz. 40, 301 P.3d 206 (App. 2013), has changed the landscape. Defendant’s interrogatories are asking more detailed information regarding our client’s financial wherewithal. With the current state of the economy, even a person who owns a house probably is not “the owner of property within the state out of which the costs could be made by execution sale” due to the homestead exemption from seizure. Home ownership does not protect a plaintiff under this rule.

The change in the rule will help assure access to the courts for those accident victims who are most in need.

/s/ Steven Reed
lincolncombs
Posts:

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25 Feb 2014 04:47 PM
Lincoln Combs
602-530-8022 | lincoln.combs@gknet.com
Gallagher & Kennedy
2575 E. Camelback Road, Suite 1100
Phoenix, AZ 85016-9225
Main: 602-530-8000 | www.gknet.com



There is no basis in law, equity, or logic for requiring plaintiffs to post cost bonds in order to proceed with civil claims. Rules 67(d) and (f) appear to be an anachronism wholly inconsistent with modern concepts of justice and a courthouse open to the public no matter their financial status. Rules that discriminate against the indigent or even just less-well-off reflect poorly on the ability of our judicial system to fairly protect all Arizona resident. And these rules also unfairly discriminate against out-of-state plaintiffs, a particular concern given our state's position as a tourist destination. These archaic rules serve no just or modern purpose and the Court should approve the Petition seeking their amendment and removal.
sbseymann
Posts:

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25 Feb 2014 06:09 PM
Commenter's Name: Scott B. Seymann
Law Firm: Adelman German PLC
Address: 8245 N. 85th Way, Scottsdale, AZ 85258
Phone Number: 480-607-9166
FAX Number (if you have one): 480-607-9031
E-mail Address: Scott@adelmangerman.com
Bar Number: 027215

Dear Justices,

I am writing in support of Petition R-13-0044 to change Rules 67(d) and (f), as submitted by the Arizona Association for Justice.

The aforementioned Rules impose arbitrary financial requirements on plaintiffs who don't have the good fortune to own property. This effectively equates to a sanctioned form of discrimination, which does not comport with the ideals of a judicial system that aims to be fair and impartial. All plaintiffs are equally entitled to such a system, and there is no room for a rule that discriminates based on land-owner status. Such provisions conjure up imagery of medieval serfdom -- a system that has no place in a civilized democracy such as ours.

Although the cost bond rules have been recognized as fundamentally unfair for the past several decades, the use of this cost bond mechanism has increased since Thiele v. City of Phoenix, 232 Ariz. 40, 301 P.3d 206 (App. 2013), Petition for Review denied on January 7, 2014, which overruled constitutional objections made by a pro per litigant.

The Court should embrace Petition R-13-0044 and eliminate these one-sided, discriminatory rules. Thank you for considering this and all the other related comments supporting this proposed rule change.

/s/ Scott B. Seymann
Frank Verderame
Posts:

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25 Feb 2014 06:18 PM
Frank Verderame
Plattner Verderame PC
316 E. Flower St.
P.O. Box 36570
Phoenix, AZ 85067-6570
602-266-2002
fverderame@plattner-verderame.com

Dear Justices,

I have read the proposed change Rules 67(d) and (f) submitted by the Arizona Association for Justice and am writing in support of Petition R-13-0044.

For the 30 plus years that I have practiced law, I have believed this rule to be fundamentally unfair. When a drunk driver cripples my client, he is not required to post a bond to secure the judgment or prove that he/she has real estate in Arizona to cover the judgment. The drunk driver is not required to show proof that he/she has real estate or post a bond to cover the costs of the litigation either. So, why is it fair to impose that burden on one side of the litigation and not the other? And, how can such a fundamentally unfair rule meet constitutional muster?

Also, Article 18 Section 6 of the Arizona Constitution says "Section 6. The right of action to recover damages for injuries shall never be abrogated, and the amount recovered shall not be subject to any statutory limitation..." This rule abrogates the right to sue for indigent claimants and those made indigent as a result of the negligence of others.

I have represented a client who was not indigent before being crippled by a drunk driver. The victim incurred so many medical bills as a result of the injuries suffered in the crash that he was rendered impecunious. Imagine the injustice of telling such an innocent victim that they cannot sue because they don't have property or cannot post a bond.

Also, while this is not a statute, does the Court have the power to impose such a limitation by rule when the legislature cannot? Clearly, this rule violates the spirit of that clause. Isn't a requirement of real property ownership or the posting of a special cost bond exactly that type of limitation on the right to sue which is prohibited by Article 18 Section 6 of the Arizona Constitution?

I believe that experienced lawyers and judges have recognized that the cost bond rules are fundamentally unfair. When he was a Superior Court Judge, Barry Schneider authored an excellent opinion which this Court should consider. The time has come to eliminate this artificial barrier to justice.
mark@breyerlaw.com
Posts:

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25 Feb 2014 10:14 PM
Mark P. Breyer
15715 S. 46th St., Ste. 100
Phoenix, AZ 85048-0439
480-505-2160
mark@breyerlaw.com

Dear Justices:

As with any rule, the real question presented is not whether "this is the way it has always been done" but, instead, what goal is being accomplished and how does this rule benefits parties in civil litigation in Arizona. I would suggest that this rule, while understandable in theory, has almost no value in application.

I can only speak intelligently to the plaintiff's personal injury practice of law but. From that perspective, and speaking for the clients I have represented for many years, this is a one-sided weapon utilized by a small percentage of defendants/insurance carriers with the apparent goal of forcing otherwise deserving plaintiffs to jump through the procedural impediments or, in the alternative, walk away from their case.

From my perspective, I have never seen this rule accomplish anything for any party. I have never had a client walk away from a case as a result of this rule. I have never had a client who had to post bond. But I have had many courts have to deal with briefing on the rule. Many conversations with extremely concerned clients (who may not even have liability issues from which they could realistically owe costs, yet still could face this application), and a large waste of time on a repeated basis. Unfortunately, others have not been as lucky, and apparently some deserving clients have lost access to the courthouse because they did not have the means to post bond but had enough that it was ordered.

This rule has no value, is a tool for harassment, is a waste of court time and resources, and I would encourage this court to consider the value the rule has (if any) as opposed to the burden it places without demonstrable advantages for any party or for justice.
swdlaw
Posts:

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26 Feb 2014 09:51 AM
Sean W. Doughty
Law Offices of Sean W. Doughty, PC
11445 E. Via Linda, Ste 2, PMB 627
Scottsdale, AZ 85259
(480) 699-1540
Fax: (480) 704-4297
swdlaw@hotmail.com
013521

Dear Justices,

I am submitting these comments in support of Petition R-13-0044 after having read the proposed change Rules 67(d) and (f) submitted by the Arizona Association for Justice.

Rules 67(d) and (f) imposes arbitrary financial requirements on certain, and solely, plaintiffs alone, needlessly creating an creates an atmosphere of invidious discrimination against "non-property owning” parties thus potentially denying them access to the judicial system.

For a significant number of years, most attorneys and Judges familiar with the cost bond rules have considered them fundamentally unfair however, the use of this mechanism has become more prevalent since the opinion in Thiele v. City of Phoenix, 232 Ariz. 40, 301 P.3d 206 (App. 2013), Petition for Review denied on January 7, 2014, overruling the constitutional objections made by a pro per litigant.

The proposed Petition would properly eliminate these one-sided, discriminatory rules.

Sean Doughty

jimmy.borunda
Posts:

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26 Feb 2014 02:19 PM
Jimmy Borunda
24 S. 30th Ave.
Phoenix, AZ 85009-5075
602-272-0379
jimmy.borunda@azbar.org

Dear Justices:
The current rule is unfair to low-asset plaintiffs with valid cases and their attorneys who take many of those cases on contingency--especially because defendants have no equivalent obligations and don't even have to show they could satisfy any judgment granted to the plaintiff.
Even though there is a procedure to avoid dismissal already, that requires a hearing--which is an unfair burden to both plaintiffs and their attorneys. If the REAL ISSUE is to prevent frivolous litigation, the remedy already exists through Rule 11 monetary sanctions.
Negrete623
Posts:

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26 Feb 2014 02:37 PM
Gil Negrete, Esq.
Law Offices of Gil Negrete, P.C.
1001 N. Central Ave. Suite 660
Phoenix, AZ 85004
P-(602)495-1005
F-(602)253-7724
E- negretelaw@qwestoffice.net
AZ Bar # 026068

In reviewing the petition to Amend Rules 67(d) and (f) Arizona Rules of Civil Procedure submitted recently by the Arizona Association for Justice, I support the petition R-13-0044. There must be an equal playing field for both Plaintiff and Defendant. We must rid our rules that continue to support one side versus another. I respectfully request The Court to amend this rule.

Thank you.

/S/ Gil Negrete
jflynn@tucsonlaw.com
Posts:

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26 Feb 2014 04:22 PM
Joey A. Flynn
AZ Bar No: 015430
Fein, Flynn & Associates, PC
1670 E. River Road, Suite 200
Tucson, AZ 85718
Email: jflynn@tucsonlaw.com
Direct: 520-547-7939
Main: 520-547-7940 ex 2
Fax: 520-547-7941
Website: www.tucsonlaw.com


To whom it may concern:

I am writing in support of Petition R-13-0044.

I have a civil injury and wrongful death practice. In my nearly 20 years of experience, I have only seen the cost bond rules (Rules 67(d-f)) used in attempt to intimidate and discourage legitimately injured plaintiffs from continuing with their litigation. Non-property owning plaintiffs seem the most intimidated by it. The rule is outdated, one-sided, and should be abolished.


/s/Joey A. Flynn
MHarrison
Posts:

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26 Feb 2014 04:42 PM
Mark I. Harrison
Osborn Maledon, P.A.
602-640-9324
602-640-9050 (fax)
mharrison@omlaw.com
1226

I support the petition to eliminate the requirement in Rules 67(d) and (f) that force only plaintiffs to post "costs bonds" when defendants - usually insurance companies -- demand that they do so. So far as I am aware, there is no blanket justification for requiring only plaintiffs to bear such a burden in order to vindicate their rights in court. The current rules not only impose unfair and inequitable burdens on plaintiffs -- they also frequently involve a waste of judicial resources. The rules were initially adopted in 1901 --- 113 years of this kind of inequity is enough.
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