Daniel P. J. Miller
Tucker & Miller, L.L.L.P.
1440 E. Missouri Avenue
Suite C-150
Phoenix, AZ 85014
PH: (602) 870-5511
Fax: (602) 870-5255
E-Mail: [email protected]

Ilya Elena Lerma, Esq.
TIDMORE LAW OFFICES, LLP
301 E. Bethany Home Road, Suite B140
Phoenix, AZ 85012
602.264.1973 (phone)
602.230.7377 (fax)
[email protected]
019573


Honorable Justices,
I am a civil litigation attorney licensed to practice in Arizona for nearly 14 years. I have, from time to time, dealt with the issue of cost bonds under A.R.C.P. 67. Fortunately, in each instance the lower courts refused to require bond to be posted as it would have deprived each of my clients access to the courts and determined the motion to be unconstitutional. This was done after significant motion practice and preparation of affidavits and significant time and effort expended by both sides and the assigned judge. In my experience, the attempts to secure a bond have never been used for any legitimate purpose. In fact, in each case it appeared that the the effort was nothing more than an insurance company's and (defense lawyer's) egregious attempt to harass and intimidate plaintiffs. The rule, in its misapplication, has prejudicial and deleterious effects upon clients very often existing in an already precarious financial circumstances. Not infrequently, clients are on disability or unemployed following an injury and requiring the bond posting can add to mounting financial struggles and anxieties as they await resolution via litigation. Moreover, the fact that no such requirement is made of defendants is evidence of the profound inequity. The deprivation of a victim's access to the courts is plainly inconsistent with the Constitution. The proposed rule change carries my strongest endorsement. Thank you.
Respectfully,

Ilya E. Lerma, Esq.

Jonathan V. O'Steen
Bar No. 024043
O'Steen & Harrison, PLC
Attorneys at Law
Suite 400
300 W. Clarendon Avenue
Phoenix, AZ 85013-3424
Ph: 602-252-8888
Fax: 602-274-1209
E-Mail: [email protected]

James B. Penny
Law Office of James B. Penny, LLC
333 N. Wilmot Road, Suite 340
520.618.5368
[email protected]
SBA No.: 015236

Dear Justices:

Thank you for taking the time to read all the comments to the proposed change to Rule 67(d) and (f). Like others before me, I am writing in support of Petition R-13-0044.

The reason for my support is simple. The current rule clearly and unmistakably works a hardship on the poor who have been wronged and deprives them of equal access to justice. The filing fee and cost of service of process is enough of a financial hardship for a plaintiff of limited means. It strikes me as unjust to require that plaintiffs also post a cost-bond. This injustice is made more apparent by the disparity of treatment inherent in the rule. The rule currently requires only the victim of wrong-doing to post a cost bond but the perpetrator of that wrong does not have any similar obligation.

Please adopt the proposed change to Rule 67(d) and (f).

Sincerely,

James B. Penny

Bethany Torgersen
STEWART & TORGERSEN, PA
2999 North 44th Street, Suite 318
Phoenix, AZ 85018
(602) 297-9300
(602) 265-6414
[email protected]
024634

Dear Justices of the Supreme Court,

I am writing to support the Petition to eliminate Rule 67(d) and (f)'s discriminatory provisions for court ordered cost bonds solely against people who seek to exercise their Constitutional right to access the courts. Petition R-13-0044 proposes changes to the Rules in order to correct that injustice and remedy the public perception of a judicial system that is biased. The simple fact that there is no similar procedure to place a financial burden on the tortfeasor, whose negligent actions damaged the plaintiff and resulted in the cause of action in the first place, proves its discriminatory nature.

As a lawyer who represents the victims of other people's negligent acts, I have seen first hand how the current rule operates to deny access to the courts. Even the threat of a bond has a chilling effect on whether a person is willing to pursue a legitimate claim in a court. The current rule institutionalizes the disenfranchisement of those people in our State who need the protection of the courts most.

It is discriminatory on its face and should be eliminated.
Thank you

Jennifer Fite
10210 N 32nd Street, Ste 213
Phoenix, AZ 85028
(602) 368-1869 (phone)
(602) 997-3948 (fax)
[email protected]
Bar No. 021441

I have practiced civil litigation in the State of Arizona for over 12 years and am a current member of the Arizona Association for Justice. I have read the proposed change to Rules 67(d) and (f) and am writing in support of Petition R-13-0044. This petition makes sense for a wide variety of reasons discussed within the petition itself and in the comments above, but it seems that the current language of the rule is most incongruous with the purpose of our justice system – to give everyone a chance to have their case heard.

Over the years, I have seen the current rule used as a tool to intimidate plaintiffs who may have little or nothing to their name. I routinely see the Request for Admission early in litigation “Admit that the Plaintiff does not own any real property within Arizona out of which costs of this lawsuit could be collected by execution sale.” This request is designed clearly to intimidate and harass plaintiffs, but is arguably relevant due to the current construction of the rules.

Imposing a security for costs is only detrimental to the party without the means to pay it, but when it is ordered it virtually bars the door to non-property owners or, put differently, the non-wealthy. Moreover, the rule applies only to plaintiffs, suggesting that they must (on motion of the defendant) purchase their right to a trial over and above the filing fee, their own costs and the rules that allow for collection of taxable costs or attorneys fees from the defeated party. Even when the plaintiff submits “strict proof” of the inability to give the security, if the Defendant is not satisfied by the proof, the court must order the plaintiff to be humiliatingly examined regarding the inability to do so.

Most civil attorneys and trial judges recognize that the cost bond rules are unfair, but this rule has been increasingly used as a weapon 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, which overruled constitutional objections made by a pro per litigant.

Perhaps more importantly to the Court, however, is that these rules create an additional burden on the court system with added motion practice, hearings and rulings that do nothing to advance the settlement or resolution of the case.

Rule 67(d) through (f) is blatantly discriminatory and the Court should eliminate these rules.

Sincerely,

/s/ Jennifer Fite
Fite Law Group

Adam Barlow
Adam Barlow Law, P.C.
1013 S. Stapley Drive
Mesa, AZ 85204
480-835-5553
Fax: 855-688-4529
[email protected]
Bar Number: #027636

Justices,

After having read the proposed change Rules 67(d) and (f), I wholly support Petition R-13-0044. The inherent problems with the Rule as it stands, and as highlighted by the subject proposal is not unlike my own recent experiences in representing Plaintiffs who are chased by Defendants for cost bonds. It is a tool that have been distorted into a hurdle to court access and justice.

Recently, it seems that cost bond requests have begun to flourish. Undoubtedly, as a result of the Thiele decision. However, there has been no positive change to efficiency or justice as a result. Rather, I have experienced an unneccessary increase in motion work and discovery. In a litigation world trending towards streamlining the process, the Thiele holding, and it's effect on Rule 67(d) represents a major setback.

/s/ Adam W. Barlow

Richard A. Dillenburg
2173 East Warner Road Suite 101
Tempe, AZ 85284
480-668-1924
480-831-7438
[email protected]
013813

". . . with liberty and justice for all." Can we help fulfill the goal of "justice for all" by eliminating a rule that bars the poor from the courthouse, please?

I support amendment of Rules67(d) and (f).

Sincerely,
Richard A. Dillenburg

Thomas M. Ryan
Law Office of Thomas M. Ryan
555 W. Chandler Blvd., Suite 204
Chandler, AZ 85225
[email protected]
480-963-3333 (Main)
480-726-1645 (Fax)
Az Bar No. 007724

I write in support of Petition R-13-0044 to amend Rule 67 of the Arizona Rules of Civil Procedure, which if adopted would have the salutary effect of eliminating cost bonds for those who can least afford to have the doors of the courthouse shut upon them. Rules 67(d) and (f) impose financial requirements on plaintiffs which discriminate against "non-property owning” parties who do not have the financial means to satisfy this obligation --- and which can force impecunious plaintiffs out of the judicial system.

Arizona's lawyers and trial judges have long recognized that these cost bond rules are fundamentally unfair to plaintiffs who cannot afford a bond. Additionally, the current Rule 67 does nothing to ensure defendants with frivolous claims can pay their costs in the event they lose. The Court should eliminate these one-sided, discriminatory rules.

Sincerely, Tom Ryan
Chandler, AZ

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: [email protected]
Bar #: 006951

Dear Justices:

I am writing to support the proposed amendment to Rule 26(b)(4) regarding payment to treating physicians for providing testimony about the care of their patients. The recent case of Sanchez v. Gama has changed the common practice that has existed since I was a new attorney in 1981 of compensating medical providers for their participation in the legal process. The change will disproportionately affect injury victims and their treating medical providers.

I have noted over the past 33 years of practice that it has gotten more difficult over time for individuals who bring injury claims to get appropriate medical care. I have had many clients who attempted to consult with a neurologist on recommendation of their primary care provider. They would call the neurologist on their health plan to set an appointment. The office staff would ask the client if they were involved in an injury claim, if so, they would refuse to set the appointment.

This shows the reluctance of doctors, even when they could demand payment for their deposition testimony, to treat injury victims. I fear that defense attorneys will begin taking a lot more of the treating provider’s depositions because they are not required to pay an expert witness fee. I foresee primary care doctors and other specialist refusing to treat any injury victim after they have been pulled away from their practice a few times to give testimony about their patients without compensation for their time. This will impact injury claimants and it is not fair to the medical provider who is often an unwilling participant in the personal injury litigation process.

The petition should be adopted.

Steven Reed

John A. Furlong, Bar No. 018356
General Counsel, State Bar of Arizona
4201 N. 24th St., Suite 100
Phoenix, AZ 85016
Telephone: (602)340-7236
Fax: (602)271-4930
[email protected]

John Dalton Shaw
Law office of Shaw and Gould
1536 West Thomas Road
Phoenix, Arizona 85015
T- 602 265-1603
F- 602 265-1505
Bar # 005368
[email protected]

Ownership of real property, i.e. the family home, or aspiring to own real property is no longer indicia of good citizenship and good moral character. In today’s economy, many experts advise against ownership. As a practical matter an ever growing portion of the population lacks the financial resources to acquire real property. The purpose of requirement to show ownership of real property to avoid posting a bond was not based upon a desire to ensure that costs could be collected. This is so because for as long as that has been the law, there has also been a homestead exemption. Therefore the requirement was to ensure that people who brought lawsuit were of good moral character. Assuming that such a requirement was appropriate it is no longer serves it purpose.

Frank I. Powers
HARRIS, POWERS & CUNNINGHAM, P.L.L.C.
361 E. Coronado Road, Suite 101
Phoenix, Arizona 85004-1525
Voice 602.271.9344
Fax 602.252.2099
[email protected]
Bar No. 013369

I write in support of the proposed amendment. I have been practicing in Arizona for over 20 years. Although I have seen many individuals who have been wrongfully injured have to deal with Rule 67's requirements, none of those individuals had their bond ultimately forfeited to a defendant. There also is no mechanism to make up for the time, expense and inconvenience in dealing with bond requirements. It is a one sided, costly process that unnecessarily wastes the Court's time and the time and resources of injured individuals. Arizona should abolish the rule.

Frederick Curtis Berry, Jr.
3101 N. Central Ave., Ste. 840
Phoenix, AZ 85012-2679
602-274-5700
[email protected]


Whether or not a person owns property does not make her more or less likely to be judgment proof. This is my experience.

More important, not owning property should not bar a person from the court house or make such a person subject to motion practice that may discourage equal access to justice. It's like getting your insurance claim denied, the Law of Large Numbers teaches insurance companies that many (if not most) people will simply give up if procedural obstacles are put in their place.

Thomas G. Kelly,III
201 W. 2nd St.
Yuma, Az. 85364
Bar Number 4703
[email protected]

I write in support of the proposed rule. There is no valid reason to condition the right to seek redress in our Court system to those who own real property. This rule is abused by insurance companies that want to prevent the poor from asserting their rights to obtain fair compensation. Your consideration is appreciated.

Mark A. Kille
Moceri & Kille PLLC
7550 E. Addis Ave.
Prescott Valley, AZ 86314-3239
928-775-9398
[email protected]

Dear Justices:

I have been honored to represent victims of injury since 2002, beginning my career in Missouri, then transitioning to Arizona in 2006. I love practicing law in Arizona, and am proud to call Arizona my home. Thank you for taking the time to read my comment, and I encourage you to read all of the comments, many written by attorneys practing much longer than I, and with more wisdom to offer to the Court.

Rule 67 has always baffled me. Essentially, an injured plaintiff brings suit in Arizona. If she is financially less fortunate by not owning "property," Rule 67(d) actually allows the courts to order the plaintiff to pay a monetary bond. Is this not discrimination? I think so. To rub salt in the wounds of the plaintiff with no property, many times the injured plaintiff is unable to work and earn an income because of the injuries caused by the same defendant requesting the bond, and therefore cannot afford the bond.

In short, Rule 67 is a rule used by defendants to take an additional procedural jab at injured folks who are unable to afford a home, unable to work, and many times cannot pay even their bills. The same rule provides no protection to plaintiffs as only the defendant can bring a motion.

I endorsed R-13-044 and respectfully encourage you to do the same by Amending Rule 67 as Mr. Tractenburg and Mr. Plattner have suggested in their Petition (exhibit 1).

Thank you for your consideration.

/s/ Mark A.Kille

Dale W. Robinson
Robinson & Allen, P.L.C.
48 N. Macdonald St.
Mesa, AZ
480-964-1421
480-834-5114 FAX
[email protected]

I would like to express my support to eliminate the obstacle to those that do not have property in the State of Arizona enforcing their legal rights. Recently defendants have begun anew a concerted effort to try to deny those seeking compensation for their injures that lack resources the right to pursue their claims. This current rule is outmoded and discriminates against those that are either out of state or indigent and should be changed.

I agree with the other comments that have been submitted in favor of this rule change.

WILLIAM G. MONTGOMERY
MARICOPA COUNTY ATTORNEY
(FIRM STATE BAR NO. 0003200)

MARK FAULL
CHIEF DEPUTY
301 WEST JEFFERSON STREET, SUITE 800
PHOENIX, ARIZONA 85003
TELEPHONE: (602) 506-3800
(STATE BAR NUMBER 011474)
[email protected]

Craig J. Simon
State Bar #018920
Simon Law Group PLLC 2141 East Broadway Road, Suite 113
Tempe, AZ 85282
Ph: (480) 745-2450
Fax: (480)745-2454

Note: Comment was filed February 27, 2014.

Carl A. Piccarreta, Esq.
State Bar #007151
Law Offices of Carl A. Piccarreta, PC
145 S. Sixth Avenue
Tucson, AZ 85701
[email protected]
Ph: (520) 623-3799
Fax: (520) 622-0521

Note: Comment was filed February 27, 2014.