I have been thinking a lot about trial techniques recently between giving feedback at Teen Court and getting my mock trial team ready for their competition on February 4. I find that participating in these activities and coaching the students not only leaves you feeling awesome, but also keeps your skills sharp in between your trials.

In teaching the students, I have discovered many growing pains a long the way. Basic things I take for granted I have to teach: where to sit in the courtroom, what to do when addressing the judge, how to argue an objection, and how to admit an exhibit. For example, I have been referred to as “Your Majesty” instead of “Your Honor” during practice. In the mock trial setting, little mistakes and misstatements can be funny to everyone involved and of no consequence to the fictional client. But, not so much in the real world.

A lot of lawyers do not actually try cases. I’ve known lawyers who have been practicing for decades and have never once had the pleasure of meeting twelve new people in a courtroom. Some lawyers do not have the opportunity because they do not practice in an area of law that is particularly conducive to allowing them to gain the experience. Maybe they do primarily research, or appellate work, or perhaps they work mainly with real estate closings. However, there are many personal injury attorneys who hold themselves out as trial lawyers and simply try their hardest not to try a case. It is my opinion that more often than not, this phenomenon arises from fear more than anything else.

A trial is scary. The prospective jury members are scared that they will get picked to sit on the case; to have to take time out of their lives to hear about someone else’s problems. The jury members selected may be afraid they will not be given all the information they need to make a decision, or that they will not make the right decision. The clients are scared; what will happen to my case? The judge may be scared. Will I get appealed? Will I make the correct rulings? The lawyers are often scared as well. Will I do the best I can for my client? Will I win, or lose? Did I forget something? Unfortunately, not facing these fears on the part of the lawyer can often be to the lawyer’s and client’s detriment. A lawyer who does not have trial experience, or who can claim to have taken cases to verdict, will not present a credible trial threat. This can cause less successful results in settlement discussions.

The fear lawyers have for trying cases does not arise out of not knowing how. Every law student will at one point (allegedly) learn how to try a case. They will learn about the rules of evidence and how to argue those pesky objections, how to give a forecast of the evidence in the opening statement, how to ask the right questions to get the right answers, and how to give a closing argument. True, it may have been quite a while since the lawyer attended law school, but I’m sure they still probably remember not to refer to the judge as “Your Majesty.” The problem I have with the way trying a case is taught, however, is that the methods taught are “by the book.” The traditional way of presenting a case is more suited for jurists rather than juries. In essence, it’s boring to the average person who is going to be seated in the box.

When it came time for me to try my first case, I was, as you can imagine, a little afraid. Getting lost on the way to the courthouse certainly did not help those fears that first morning. But, I felt a little better because I had a good trial advocacy professor in law school. My learning how to try a case did not end with law school. Before that first trial, I began preparing in earnest. I read books by James McElhaney and David Ball. I researched cases. I read John Grisham. I even sat through an entire day’s marathon of Law & Order episodes.

In the three years since that first trial, and over the course of many others, I have learned that school is not where the educations stops. Many lawyers are smart enough to recognize this, but instead they learn new “tricks” or “gimmicks” that worked for other lawyers in the courtroom. I find that people (e.g., the jury), do not like being tricked. I certainly don’t.

Whether your reading this post because you’re a member of the public wondering how we lawyers do it, or a lawyer wanting to know how others do it, or a member of one of my mock trial teams reading this because I assigned it as homework, here are six keys to success in the courtroom I have learned over the years:

1. Preparation, Preparation, Preparation. Please don’t wait until the weekend before the trial to discover that you are missing documents that you need. How about figuring out your theme and theory of the case before calendar call? Know what you are going to say, how you are going to say it, and the facts and law that backs up your position well in advance of the trial.
2. Relate. Lawyers are not a lovable group of people. There are volumes of books filled with jokes written about us. The word lawyer is usually precipitated by some sort of profanity or derogation. Therefore, do not act like a lawyer. Don’t get me wrong: You do not want to start calling the Judge by their first name and wearing your favorite pair of Rainbows to court. However, you do not have to be a walking stereotype either. Try not to act like you’re better than everyone else (especially your client) or that you are all-important (you are not). Be who you were before you went to law school.
3. Flexibility. After you prepare, prepare, and prepare, you can rest assured of one thing: something will not go as planned. Calm down and carry on. Think fast, make a decision, and handle it.
4. Creativity. Whiplash is whiplash, but no two stories are exactly the same. Don’t prepare for trial by just changing the names and places you used in your last opening statement.
5. Care. About the case and what you do for a living. If you don’t seem to care, why should the jury? You are technically correct if you present evidence to the jury and argue the facts with the law in your statements. But, when’s the last time anyone who hasn’t gone to law school cares about cold, hard facts? The truth of the matter is we as people make decisions on an emotional level and then justify those decisions with rationale thought. If you do not have a passion for your case and for what you do, then your chances of persuading a jury to care and find in your client’s favor is much lower.
6. Credibility. Do not try to be something you’re not. Be yourself. Have you ever met a person who you thought was a “little off?” Something just wasn’t right about them, and that made you not trust them? That’s what the jury will think about you if you try to be something you’re not in the courtroom.

Disclaimer: The views of the author are his own. This blog is designed to both entertain and inform members of the general public and the legal community concerning issues surrounding the trial of personal injury cases. As such, you should not treat this as legal advice. Legal advice normally is not entertaining. Reading this blog post also does not create an “attorney-client” relationship. The author will admit that he rather enjoyed being referred to as “Your Majesty” during that one practice. He attempted to implement this at his home, with the wife. He cannot recommend this for the husbands that may be reading. He can recommend a good brand of couch, however.

Even though I am a personal injury trial lawyer based in Raleigh, North Carolina, I have been asked my opinion on the Casey Anthony murder trial in Florida at least a dozen times over the past month or so. I have done my best to deflect the question, as I have not followed this trial at all. But, to be polite, I always ask the individual for their opinion while trying to avoid giving mine. The opinions were almost always “She’s guilty,” and were said more as a factual statement than an opinion.

Try as I might to avoid caring about a trial over a thousand miles away that will not impact my life one bit, I could not help but care about the verdict today. Within minutes of the “Not guilty” being handed down, Facebook land and the Twitterverse exploded with Monday morning quarterback commentary. On Facebook, my friends agreed by a large margin that the jury screwed up, posting such things as:

• “this not guilty business is ridiculous! [sic] Then again, let’s all recall OJ was not guilty as well so how surprised can we be. [sic] Sigh…”
• “This is so ridiculous, exactly like oj [sic]. I dont understand how you are guilty of lying to the police but not guilty of murder…crazy!”
• “It’s amazing to me how our legal system has failed once again, and for an innocent little girl. Casey, just wait til [sic] your final judgment day [sic]“
• “So wish the prosecution had done a better job. So frustrating!”
• “Such a tragedy. The justice system failed today and let a murderer walk free.”
• “Holy crap. Cannot believe Casey Anthony was acquitted of Caylee’s death. May the death of her beautiful daughter haunt her for every fuggin’ second of her fuggin’ hot body, fugly life. And I wonder if she is going to move back in with that molesting father of hers. Wow. So sad that there is no justice for Caylee.”
• “Wtf!?!? Not guilty? Really???”

In the Twitterverse, my tweep Time Magazine listed the top ten tweets on the verdict. These 140 character musings included:

• @JoyVBehr: “I am shocked by the #caseyanthonyverdict. Though I can’t say this is the first time Florida screwed up on an important vote.”
• @KimKardashian: “WHAT!!!!???!!!! CASEY ANTHONY FOUND NOT GUILTY!!!! I am speechless!!!”
• @MunchieTheAgent: “Casey Anthony Trial. Worst. Season. Finale. Ever.”

But, not everyone it seems was upset by the verdict. Some friends, admittedly all of them criminal defense attorneys, posted these thoughts:

• “With no physical evidence or confession, why is everybody surprised at the Anthony verdict? Do we want juries to convict based in emotion or facts or lack thereof?”
• “Jose Baez is my hero for the day. Maybe for the month.”
• “wow. kind of wanting to go to nancy grace’s office and dance, just cause.”

A couple of friends got everything exactly right in my opinion, posting:

• “I am very happy with the verdict, independently of what “I” believe to be the truth. I know I am in the minority here, but I think this is how the justice system is supposed to work.”
• “Did everyone forget about that “innocent until PROVEN guilty” thing or is the American judicial system supposed to work like a national survey where we tweet our vote? Agree with the decision or not, the courts worked like they were supposed to.”

Throughout the day, I have been reading all these posts and tweets and getting more and more dismayed. It seems that the opinion of most people is the system failed today…again. The opinion is not unique to the Casey Anthony trial, and is not at all surprising. The failure of the system and “stupidity” of American juries is a prevalent theme in the recent history of our country. This is true not only for criminal verdicts like today’s, but also in the civil arena.

It is clear to this author that America has lost respect for its justice system. In the criminal context, we constantly complain and bemoan the not guilty verdicts and blame them on stupid juries, slick defense lawyers, and “technicalities.” In the civil context, we complain and bemoan the large monetary verdicts and blame them on stupid juries and slick personal injury attorneys. The common theme, of course, is that our justice system is threatened by unsophisticated juries and trial lawyers. In reality, this is false.

The true threat to today’s judicial system is a lack of respect for that judicial system. It amazes me that the very people who will search the depths of their creativity to find an excuse to get out of jury service will so quickly Monday morning quarterback a jury’s decision. It is doubtful that Joy Behr, Kim Kardashian, Munchie The Agent, or my Facebook friends mentioned above watched and listened to every second, of every minute, of every hour, of every day, of every week of that long trial like those twelve jury members did. What is more probable is that they learned about the evidence through 1,000 word news articles summarizing an entire day’s courtroom events, and 30 second rantings by “journalists” such as Nancy Grace. Who is in the better position to make an informed decision on the facts of the case and reach the just result based on the evidence?

A perfect example of this phenomenon is the McDonald’s coffee case. This case is the bane of my existence as a personal injury lawyer, because barely a jury selection goes by where we do not have to talk about it. Everybody is quick to criticize the $2.6 million verdict for the woman who spilled coffee in her lap. But when the true facts come to light, when people are educated on what really occurred and not just relying solely on what the news reports, they tend to take a different view. This case is highlighted in the recent documentary Hot Coffee. I remember sitting in a crowded auditorium when it came to a local film festival. We all watched as interviewees trashed the verdict, like most people do. Then the filmmaker, Susan Saladoff, showed the interviewees the actual pictures of Stella Liebeck’s burns. Everyone of the interviewees changed their opinions when they saw actual evidence from the trial. When Saladoff showed the audience the burns, a collective gasp went through the auditorium. What we hear in the news media is not always what the real evidence in a case tends to  show.

It is ironic to me that so many of us are trashing the jury system of this country this day in particular. Yesterday, we celebrated the courage and bravery of our founding fathers to stand up to tyranny from the crown, yet today we appear content to question the wisdom of these founding fathers in bestowing upon us the very civil rights and liberties that make this country strong and set us apart from the rest of the world. As an officer of the court, but more so as a citizen, this makes me sad. There are flaws to the system surely, and the guilty do occasionally go free, just as the innocent are occasionally locked up for a crime they did not commit. But, a flawed system does not mean we should trash it. After all, just like the system, we all as individuals have flaws. I think everyone can agree that we as individuals deserve some respect, and so to does our justice system.

My uncle had this to say on Facebook recently about jury trials in murder cases: “I think laws have been revised to benefit long drawn out trials. If someone is caught…killing another human being then they should have their head removed during a live broadcast on CNN.” There are places in this world that do this. I can think of Iran, Syria, Libya and a few other countries off the top of my head.  When we choose to let our emotional reflex rooted in very limited factual information control our perception of what is one of the best legal systems around, we undermine our system and threaten to turn it into a system resembling those of the very countries we have fought against and decry for their human rights violations. In short, if we undermine our justice system with a complete lack of respect, then the founding fathers may have well just submitted to the tyranny of the crown instead of standing up for individual liberties.

If Casey Anthony truly did murder her daughter, then this verdict is still the right decision. Jose Baez and the rest of the defense team zealously represented their client and checked the power of the government, forcing them to prove their case beyond a reasonable doubt. The government failed to do so, according to twelve ordinary people who heard all the evidence and deliberated to reach a unanimous decision. This check on the government’s power protects all of us as citizens. The justice system is the only recourse we have to prevent abuses of power and is the only place where an ordinary citizen has a level playing field with a government or a large, wealthy corporation. Thus, it deserves a little more R-E-S-P-E-C-T and a little less Monday morning quarterbacking.

Disclaimer: This views of the author are his own. Nothing in this blog post should be construed to provide legal advice to any individual. The author did not follow the Casey Anthony trial because he followed news of greater import, such as our economic crisis, stories regarding potential presidential hopefuls, and movie reviews for Transformers: Dark Side of the Moon. Juries are not stupid. The author will only agree with this assertion when the one asserting it is called for jury duty. Your constitutional rights are not “technicalities.” They are inalienable and sacred rights. If you wish to spout off your mouth about how I am wrong, and how we need to reform our justice system to remove said “technicalities”, then allow the author to take away your First Amendment rights for a day and see how much of a “technicality” these constitutional rights are. You will be allowed only to call this day I Live In North Korea Day. The author is happy that Kim Kardashian is speechless. He believes it is about time, and he hopes she remains that way. Of note, Kardashian’s father was one of OJ Simpson’s attorneys in his murder trial. [Insert your witty, ironic and/or sarcastic comment here].  For those of you curious, [sic] used above indicates the passage appears exactly as in the original source. The usual purpose is to inform readers that any errors or apparent errors in the copied material are not from transcription; that they are reproduced exactly from the original writer. The author does not use this here to point out his friends’ failure at the English language. Rather, he uses it to lament the lack of spelling and grammar check on Facebook. Take. A. Hint. Zuckerberg. The author has become addicted to Twitter, after long resisting using it. Looking back on this post, the author is a little sad that the phrases “twitterverse” and “tweep” have entered his vernacular as a result.

If you’ve been reading this blog recently, you know that we at Leone Noble & Seate, L.L.P. have been following several bills in the North Carolina General Assembly that could impact your legal rights when you are harmed by another’s wrongdoing. The legislature has wrapped up their session and will go back to work on July 21, 2011. It’s time for the good news, and the bad news on these bills.

SB 33: Medical Liability Reforms

The Bad News: This bill passed both the Senate and the House in the General Assembly after numerous amendments. In its original form, it  legalized negligence in emergency rooms, and denied catastrophically injured people a just recovery by a verdict of their peers. Two former Republican NC Supreme Court Justices said this is unconstitutional because the legislature cannot interfere with each North Carolinian’s right to a fair jury trial or overrule jury verdicts. Among other things, this bill included a cap on noneconomic damages of $500,000.00.

The Good News: Governor Perdue vetoed SB 33 on Friday, June 24, 2011.

The Yet to Be Seen: Governor Perdue issued the following statement when vetoing the bill:

“I am strongly committed to passing meaningful medical malpractice reform.  Doctors, hospitals and nursing homes in North Carolina are all being burdened by medical malpractice insurance rates that are too high.

By working together, we enacted meaningful changes to our tort law (H.B. 542) and our worker’s compensation system (H.B. 709) this year.  We can achieve real medical malpractice reform as well.  I commend the legislature for addressing this important issue but, in its current form, the bill is unbalanced.  I urge legislators to modify the bill when the General Assembly returns in July to protect those who are catastrophically injured.  Once the bill is revised to adequately protect those that are catastrophically injured, I will proudly sign it into law.  I pledge to continue working with the General Assembly to achieve a comprehensive, bipartisan consensus.”

It is too early to predict whether medical liability reform will be revived in the General Assembly’s short session or in future sessions, and what form it will take.

HB 542: Tort Reform for Citizens and Businesses

The Bad News: On June 24, 2011, Governor Perdue signed HB 542 into law in a defeat for the legal rights of North Carolina citizens and taxpayers for the benefit of Wall Street greed. In signing the bill, Governor Perdue stated, “House Bill 542 will ensure that when an accident happens, the laws in North Carolina both protect those injured and also prevent undue or disproportionate penalties from being imposed upon our companies. This law helps strike a fair and delicate balance.”  We must respectfully disagree.  This law will  make insurance companies more profitable at the expense of innocent victims of wrongdoing, and contains measures that will make it more difficult for victims to obtain justice.

The Good News: The version of HB 542 that was signed into law by the Governor was significantly better than the bill’s original form. While it still has far-reaching and negative consequences for victims, it could have been far worse.  The most significant change to the bill was the removal of the controversial provision that would have granted immunity to drug companies when their products were shown to kill or otherwise harm individuals if they had government approval.

Be sure to check back on this blog frequently as we will continue to update you on legislative changes that could impact your rights when you have been harmed by someone else. For a more detailed history of these bills and the tort reform debate in North Carolina, please be sure to check out our past posts on the topic (listed in chronological order):

Thinking Caps (Jun. 2, 2010)

The U.S. Chamber Pot (Dec. 22, 2010)

Lessons in Frivolity (Dec. 28, 2010)

Like A Good Neighbor (Mar. 18, 2011)

Help Us In Defending Your Rights (Mar. 30, 2011)

North Carolinians for Affordable Health Care (May 11, 2011)

Are Lawsuits Such A Bad Thing Afterall? (May 12, 2011)

NC HB 542: You Ask, I Answer (May 18, 2011)

NC HB 542 Legislative Update: Keep Heping Us in Defending Your Rights (May 31, 2011)

Disclaimer: The views of the author are his own. Nothing in this blog post should be construed to provide any legal advice to any individual. The author also recommends the documentary Hot Coffee to anyone interested in the tort reform debate. It aired on HBO last night at 9:00 p.m. and will be available for DVD this fall.

Joplin, Missouri looks like any other mid-sized American town when you first drive into it. There is a Starbucks, a Lowe’s Home Improvement, and countless other franchised businesses scattered about the streets. As you drive, you can smell the fried goodness of McDonald’s fries, see the billboards for businesses begging for your hard-earned cash, and get excited when you manage to make two green lights in a row on a congested central road. These hallmarks of modern suburbia continue for about a mile or maybe two, and then you enter the disaster zone.

The tornado that hit Joplin last month touched the ground for fourteen square miles. It was a mile wide, and left in its path total destruction. Many buildings are damaged beyond repair and recognition, and others have been completely obliterated. Like most Americans, I had seen photos online and the news coverage from all the major outlets shortly after the tornado hit. These images hardly do the destruction justice. Words, especially any this author can scribe, cannot do it justice either.

This past weekend, Beth Leone Noble, Patrice Ray, and me worked along side the Americorps and strangers from all over the mid-west and other parts of the country doing debris clean up in Joplin. Our journey to Joplin was organized by Beth Leone Noble on short notice after she felt compelled to help. Always up for an adventure, I agreed to go without hesitation and on very short notice. I thought when I agreed I knew what I was getting into. Growing up on the coast, I have survived hurricanes minor and major, including Bertha, Fran and Floyd. I’ve helped with debris clean up with Floyd in the past and I figured this would be no different. I was wrong. As hard as we worked over the two days we spent in Joplin, when one looks around one can see that all of that hard work had barely made a dent in the big picture. Restoring Joplin will clearly take many months, perhaps even many years.

Our days began at Missouri Southern State University, where Americorps had set up volunteer headquarters at the stadium. The site was reminiscent of a military field operation, with buses, support vehicles, and the signature olive green tents dotting the landscape. These buses from the school district would be our shuttles to the project sites, and offer a more intimate view of the destruction the tornado caused as they ferried us through Joplin’s streets.

The Home Depot is gone. The only part that remains is one small still standing portion of its massive structure, hunks of concrete and mangled debris and merchandise. The Walgreen’s is also gone. Countless other businesses are unrecognizable, with broken concrete, walls, shredded insulation, and mangled steel rafters dotting the parking lots. The strip malls and shopping centers once housing these businesses have gone from thriving centers of commerce to nothing more than a ghostly junk yard.

The residential areas where we worked are worse. All that remains of some houses are the concrete slabs comprising their foundations. The trees, as far as the eye can see, look from another world. Branchless trunks reach up into the sky, naked as if begging to be transplanted somewhere else. Hunks of twisted metal are wrapped around them. There is a mattress impaled on one of them. Cars are totaled and strewn about as if some child picked up a pile of Hot Wheels and tossed it. FEMA Urban Search and Rescue “X” markings are sprayed on what walls are still standing.

Lawns have been replaced by debris piles, and the summertime smells of barbecues and flowers have been replaced by the smells of rotting garbage and decay. There are splinters of wood, branches, parts of walls, insulation, appliances, household furniture, electronics, and personal belongings scattered everywhere. They are the remains of what use to be peoples’ material lives.

As we clean up the debris, taking care to separate it into piles according to FEMA guidelines so the U.S. Army Corps of Engineers can collect it, we catch a glimpse into the lives of those that have been destroyed. We find clothing, VHS tapes, records, and childrens’ shoes and toys. We see at our first project site a house with one of the kitchen walls still standing, and not much else. The cupboard doors have been torn off, but the contents remain unscathed. We find birthday cards and collections of other mementos. There are Christmas decorations buried under trash, vegetation and drywall. We find a 2011 high school graduation program, showing that the ceremony had been held at the badly damaged Joplin High School in the not so distant past. We see what looks like a war zone on every street we work on, as if some military superpower dropped a large bomb on the unsuspecting residents of Joplin.

Driving through the affected areas, we see the hospital that was hit and plastered on the news. We see and work about a quarter-mile from the pond where Will Norton’s body was finally found after a desperate search. Some of the homes have “K-9″ spray painted on them to indicate that the dogs need to search for bodies inside. In one yard that we see, are two small crosses adorned with flowers, remembering the residents who did not make it.

Some of the residents are there. They are grateful and shout “thank you” from their yards as we walk down the street to the project site from the drop zone. We do not see many of them, and some of the ones we do see appear shell-shocked still. We learn from one of the Americorps volunteers that there are not more of them around because many of the residents are still in the hospital.

The randomness of the tornado’s destruction is amazing and surreal. It can obliterate a house, but leave a coffee mug from the kitchen untouched in the front yard under piles of debris. It can send a shard of wood flying through the insulation, drywall, wood and siding of the wall of a house. It can destroy all the houses on one side of the two-lane street, but leave the houses on the other side virtually unscathed.

I can imagine as we sort through the debris the terror of the residents of Joplin as the tornado struck. I can hear the screams. The children cry. The dogs barking. I can feel the shock and adrenaline. I imagine the utter sense of hopelessness, and the emptiness that must accompany knowing that you very likely are not going to make it through the storm. I can hear the residents praying for mercy. It is a powerful imaginative image.

Joplin, however, is not a sad place. It is not a place overwhelmed with despair. It is a hopeful place. Saturday alone, we were three of two thousand volunteers that descended upon the city to help the strangers of Joplin. Tents, trucks and trailers are scattered throughout the city offering disaster relief services and help. The American Red Cross delivers icy cold drinks and food to us volunteers in the field in order to help us stave off heat exhaustion in the unrelenting summer sun. It seems like every volunteer and relief organization, big or small, is there.

American flags wave proudly throughout the fields of rubble. Some houses have messages of hope and love written crudely on them in spray paint by owners and volunteers alike. One message reads, “We’ll be O.K.”  The Home Depot has erected a tent amidst its wreckage and is open for business, a banner hanging outside proudly proclaiming, “We’re rebuilding with you, Joplin.” The Walgreen’s has already started rebuilding, making significant progress, and is operating out of a trailer in the meantime. Businesses pledge on electronic and print marquees that “We will get through this together” and “God bless Joplin.”

We work on the property of a woman named Janis. Janis and her family heard the warning sirens when the tornado was headed their direction and went into their basement to be safe from the storm. Their tiny basement windows blew out, and they started to rush back upstairs out of fear. But, their safe fell through the floor and blocked their path. Janis stated that they took this as a sign from above that they were to remain in the basement. As I work with others to carry one of the walls of her house out of the back yard and to the front curb, I can’t help but think how lucky she was that they did stay in the basement. Janis is an older middle-aged woman, clearly not of significant means, and apparently not in the best of health. Looking around at what remains of her property, I would imagine that most people would sit with their heads hung low, crying and wondering, “Why me?” But, this is not Janis. Janis tells Beth we were not to worry about them; that they were grateful to be alive and have so many wonderful people helping them out. This was the common theme from every one of the Joplin residents we encountered over the weekend.

As I sit watching the evening news and Twittering as I write this (I’m good at multitasking), I can’t help but contrast what I see our society portrayed as with what I saw from the people of Joplin. Watching the “news,” and the advertisements that seem to interrupt the broadcast every 30 seconds or so, I cannot help but notice that we appear to have become a nation of materialistic complainers in need of instant gratification. I’m fat, so give me a diet that will make me thin in 90 days or less. Oh, and if I can keep eating all the bacon I want while on it, all the better. Apple suggests to me that I need an iPad 2 to be happy, productive, entertained, and most importantly cool. After all, if I don’t have an iPad, I don’t have an iPad. Can’t stop smoking? Forget willpower and determination, we have a pill now you can take to fix that. War in Afghanistan? Yeah, yeah. What about the fact that Weiner guy, who I had never heard of and didn’t care about  until last week, still hasn’t resigned. I mean, he texted a picture of his junk and then lied about it when Fox News flashed it before the world! And, OMG! Why doesn’t Lebron James care that people  rooted against him in the NBA finals (probably because he gets paid $19.2 million a year for the next five years to dribble a silly ball down a wood floor for six months out of the year regardless of whether his team wins or loses)?

I refuse to believe that Americans are like what our media suggests we are like to the rest of the world. I don’t believe Americans, deep down, truly care about pictures of a bulging boxer short on Twitter, an iPad, or the latest quick-fix pharmaceutical. I believe most Americans care about Americans, and this hypothesis was proven correct by the army of volunteers in Joplin this past weekend. They came from near and far to help complete strangers, most of whom they will never even know their name or see. This occurred before this past weekend, continued today, will continue tomorrow, and will continue each day for a while to come. This is the America I choose to know. It’s the “many wonderful people” helping other people out.

It is easy to think that we have a lot going wrong in our lives. The economy is down, the jobs are unsecured, the politicians keep playing games and bickering pettily amongst themselves. You may have had a bad day at work. You may have had a fight with your spouse. You may be injured and in pain, harmed by someone else. These are legitimate concerns and complaints. But, it is also important to keep an eye on the big picture as Janis has: in the face of our trials and tribulations, we are alive and we have many wonderful people there to help us through the difficult times.

Disclaimer: The views of the author are his own. Nothing in this blog post should be construed to provide any legal advice to any specific individual. Readers may believe that the true identity of “Janis” has been concealed to protect her privacy. This is not true. The author is calling this woman Janis for two reasons: 1) it provides for a clever pun in the author’s opinion for the title of this post, and 2) the author has had Me and Bobby McGee stuck in his head since last Wednesday. This is most unfortunate, but the author is reminded to practice what he preaches and put things into perspective. If this woman’s name really is Janis, the author apologizes for his horrible luck and would remind any readers that similarities to real names are purely coincidental. The author legitimately does not care about Anthony Weiner’s wiener. He does care, however, if you are injured and need help.

Not too long ago, my wife and I were at dinner with our neighbors and friends. This was two days after our third wedding anniversary, and naturally one of the friends decided to ask me what we did to celebrate and what we had given each other. Everyone looked to me waiting for my answer, including my wife. I’m convinced this so called “friend” likes to get me in trouble.

My response: “Uh….um….uh…we…um…I got her a…um…she got me…uh….[expletive censored]. I don’t remember. (notice wife glaring out of corner of eye) [expletive censored].”

All of us forget things from time to time. Sometimes, we forget allegedly important things. I find in my practice that clients are usually not worried about forgetting things until the time they have been summoned for a deposition. If you have filed a lawsuit alleging personal injury, the defendant has a right to take your deposition pursuant to the North Carolina Rules of Civil Procedure.  The deposition is a legal proceeding, more informal than actual courtroom testimony, where the defendant’s attorney has an opportunity to ask you certain questions applicable to the case.   Your answers, as well as the questions asked, will be taken down by a court stenographer and will be transcribed. 

During the deposition, all of your answers will be given under oath, and they may be used at the time of trial.  Therefore, it is extremely important to be well prepared for your deposition testimony since the deposition is as important as the trial itself, and may be extremely important in terms of settling the case. 

Clients freak out when they have to give a deposition because they don’t remember some of the things related to the accident. They think they are going to fail their deposition. Say, for example, what day of the week it happened on two years ago when it happened. Or, they may forget what they talked about verbatim with the doctor on their third office visit on the morning of that visit two and one-half years ago. This is reasonable and to be expected.

A deposition is not a test. It is not the SAT, LSAT or bar exam. It’s a discovery tool designed to be more of a conversation between you and the other attorney so they can discover more information and understand your side of the case better. You don’t get a gold star for answering all the questions and getting them all right. If the attorney asks you a question and you do not know the answer because you do not remember, “I don’t know” and/or “I don’t remember” are perfectly acceptable deposition responses as long as they are truthful responses. Some deponents want to give into the urge to guess at the answer; and this should be avoided.

There are certain things in a deposition that you do want to remember, however. Virtually every lawyer will tell you to remember to give verbal answers, for example. No head nods, shakes, or the ambiguous “uh-uh” and “uh-huh.”  There are also some questions where we expect you to know the answer and remember. For example, “Please state your full name for the record.”

Experience has taught me, however, in the countless depositions I have taken and defended, that peoples’ nerves sometimes get the better of them and they rely on “I don’t know” and “I don’t remember” as a crutch. This should be avoided, and a deponent should take a second or two and make sure they understood the question and that it truly is something they do not have the personal knowledge to answer.

Experience has also taught me that on certain days, like today, humor can be the cure for nervousness in the case of a deponent or just general aggravation in the case of the lawyer. In case you are having one of those days, allow me to share what I have found to be other important things to remember during a deposition . These are based on SNAFU’s my clients have generated over the years:

• Remember how old you are and what your date of birth is. You look really, really dumb when you say “I don’t know” and “I don’t remember” to these questions.

• Remember that it is not your lawyer’s fault when you change your testimony in the middle of the deposition. No, he should not have told you to “stick to your story.” Telling the truth should be obvious at any point of the case. If you lied previously, shame on you. If you lied in your deposition, I have to report you.

• Remember to stay awake. Falling asleep during your testimony will not relieve you of the responsibility of answering the question. We will wake you up to get the answer. Plus, the snoring is annoying to the court reporter.

• Remember to listen to, and think about, the question. When you answer “No” to the question of “Were you injured in this accident?,” you no longer have a personal injury case.

• Remember to show up. While I agree that it would be better for your particular case if you do not have to answer questions about it, a deposition is not optional. You must attend.

Disclaimer: The views of the author are his own. Nothing in this post should be construed to provide legal advice to any particular individual. The author has realized that he paints himself out to be a bad husband in his posts. This is an inaccurate portrait. His wife may disagree, but she does not write this blog so it doesn’t matter. If you are a divorce attorney and regularly read this blog, the author would remind you of the ethical limitations on solicitation of cases and the mandatory reporting requirements imposed on attorneys, like the author, for transgressions of the ethical rules. Do not contact his wife. The author would also remind you that you have hours to bill and better things to do than read this blog.

Here at Leone Noble & Seate, we have committed ourselves to defending your rights. As part of this promise, we have carefully been following two bills currently pending in the North Carolina General Assembly that threaten the rights of North Carolina citizens for the benefit of large Wall Street corporations and profits. While I have long blogged about tort reform in general, my focus has obviously been on these bills that threaten my rights, your rights, and the rights of your friends and family. In our original post on HB 542, entitled, Help Us In Defending Your Rights, we introduced you readers to provisions of the bill and the negative consequences it will have on you and your loved ones. At the end of that post, we asked you to contact your elected representatives in the General Assembly to express your concerns.

Many of you have done so, and so have others all across North Carolina. I am happy to report that your efforts have worked, and numerous changes have been made to these bills to mitigate some of the harm they would do to citizens like you in favor of insurance companies and other large, wealthy corporations. However, there is still work to be done.

Despite the changes that have been made to the original filed bills, there are still key provisions of HB 542 that threaten your rights and the fairness of the civil justice system. These provisions are:

Billed v. Paid. For every North Carolinian injured or killed by someone else’s wrongdoing, the bill would give a credit to the Defendant and their insurance company if the innocent victim bought and paid for their own medical insurance. The bill allows the wrongdoer’s insurance company to reduce the amount they owe the injured victim using the victim’s own insurance. This means that if somebody injures you because of their own carelessness, they will benefit from the insurance you work so hard to pay for even though they have their own insurance designed to cover the very same medical expenses. You can find more information by clicking above and reading my detailed response to a reader’s question concerning this provision.

Limitations on Attorneys’ Fees. This bill provision will make it cost prohibitive for damaged victims to sue on smaller automobile accident cases, and will allow the insurance companies to pay whatever they want on these small cases. Often, in my own experience, insurance companies already offer victims much less than the medical bills the victim incurred even when the fault of their insured is clear. Just because they can. How much worse will this practice get if this legislation is enacted? Limitations on attorneys’ fees may seem like a benign provision, but it will effectively make it cost prohibitive for attorneys to help victims of negligence on smaller cases, leaving those victims to fend for themselves in the civil justice system and at the mercy of the large, wealthy and powerful liability insurance companies.

Immunity for Manufacturers of Dangerous Drugs. This provision has been modified from it’s original version. Originally, this provision applied to all products which had been manufactured in accordance with the terms of approval, license or similar determination of a government agency. The only one of its kind in the country, the provision would have granted immunity to the manufacturers of virtually every product in your household when the manufacturer committed wrongdoing in its manufacture as long as a government agency approved it. The provision in the bill has now been modified to apply only to pharmaceuticals. Michigan is the only other state in the country to have implemented similar tort reform measures, and it has cost the taxpayers of that state many millions of dollars in favor of billion dollar drug companies. We believe that such immunity will not only strip injured consumers of their legal rights, but will also cost the taxpayers of North Carolina hundreds of millions of dollars over the years. Attorney General Roy Cooper agrees, stating, “North Carolina taxpayers and consumers could lose millions in legal settlements won because of illegal drug marketing and other violations if House Bill 542 becomes law … North Carolina could become only the second state in the country where pharmaceutical manufacturers could be allowed to do or say anything about a drug as long as it has basic FDA approval.”  In the past 10 years, the Attorney General’s office has recovered for North Carolina taxpayers more than $400 million through its Medicaid investigations unit, many of that from settlements with pharmaceutical companies. This would no longer occur if HB 542 becomes law.

Justice and one’s civil liberties continue to be in jeapardy for every citizen in North Carolina. Please take a moment to contact your elected officials and remind them that they work for you, the citizens, and that you feel that fairness and justice should win in this State over corporate profits and campaign contributions. Your efforts thus far have made a difference, and continued conversations with your elected representatives will continue to make even more of a difference.

The North Carolina House is scheduled to vote on HB 542 on Wednesday, June 1, 2011, and it’s possible that the law could make its way to Governor Perdue’s desk for her consideration. It is imperative that you act now if you favor justice and fairness for all citizens over Wall Street profits and greed. Please click here to take action now!

Disclaimer: The views of the author are his own. Nothing in this blog post should be construed as providing legal advice to any specific individual. This blog post is intended to cover some of the many harmful provisions of HB 542. There is another bill, SB 33, which deals specifically with medical malpractice and caps of non-economic damages in medical malpractice cases. For more information on SB 33, visit the North Carolina Advocates for Justice and LetJuriesDecide.com.

We all know that the law requires us to wear our seat belt in most circumstances when we are driving our cars down the road. The actual requirement from the statute, in lawyer terms, is “each occupant of a motor vehicle manufactured with seat belts shall have a seat belt properly fastened about his or her body at all times when the vehicle is in forward motion on a street or highway in this State.”  But, like the speed limit, there are a lot of people that interpret the “shall” as a “should” and treat the law more like a guideline. Occasionally, these people will be in an accident.

In recorded statements I see from insurance companies, there are quite a few adjusters that will ask the claimant whether they were wearing their seat belt when the collision occurred. This raises a good question, which I have been asked by clients and other individuals a few times before: If you sustain injury when a vehicle gets in a wreck, are you still covered by your insurance if you are not wearing a seat belt?

The answer is yes. Failure to wear your seat belt does not result in a loss of insurance coverage for your injuries, and it does not prevent you from pursuing a personal injury claim. I have seen some insurance adjusters attempt to argue that because an individual was not wearing their seat belt, they could not recover as they were contributorily negligent. The problem with this argument is that the evidence isn’t admissible in court. The statute specifically provides, “evidence of failure to wear a seat belt shall not be admissible in any criminal or civil trial, action, or proceeding except in an action based on a violation of this section or as justification for the stop of a vehicle or detention of a vehicle operator and passengers.”

Even though you can still recover if you are not wearing your seat belt and are in an accident, you should wear one all the time. You never know when an accident will occur, and buckling up is the law. Seat belts are designed to keep you safe, and can even save your life if you are in an accident. If you are one of the many people that will be traveling for the upcoming Memorial Day weekend, please be safe and buckle up.

Disclaimer: The views of the author are his own. Nothing in this post should be construed to provide specific legal advice to any specific individual. The author qoutes large sections of the law in this post. The law was drafted by lawyers that used a lot of words to say something very simple. This is common among lawyers, and causes irritation amongst the public. The author occasionally gets asked why lawyers do this. He will qoute Will Rogers when answering, “every time a lawyer writes something, he is not writing for posterity. He is writing so endless others of his craft can make a living out of trying to figure out what he said. Course perhaps he hadn’t really said anything, that’s what makes it hard to explain.”

My average day is not spent arguing in a courtroom, it’s spent answering questions. All day at work, I get asked questions like, “what’s my case worth?,” “what does that mean?,” “why is the insurance company treating my claim this way?,” or, if bearing bad news, “whatchu mean?!”  My responses to these questions and the hundreds of others varies depending on the case and situation.

At home, a lot of time is spent answering questions as well. I get asked questions like, “what’s for dinner?,” “how was your day?,” “why can’t you put your dirty laundry in the hamper and not on the floor?,” or, ”what is so hard about loading the dishwasher?” My responses to these questions and the hundreds of others do not vary that much, and typically consist of one of three standard responses: “I dunno,” “Whatever,” or, if the television is on when the question is asked, “Huh?”

I occasionally get questions from you readers as well. Last Friday, a reader sent me an email about my post North Carolinians for Affordable Health Care, which dealt with tort reform in North Carolina. It was a good question, and I know others probably have it as well, so I thought I would take a minute and respond here.

Question: I was a little confused [about your post] because the commercial for the house bill talks about actual cost or out of pocket expenses and you seem to be talking about medical bills. Here is an example that may explain my confusion.  I have this medical problem and I get a prescription.  This comes with a bill for $304.72, but I only pay $20.  So my expense is $20, and I could care less about any medical bill.  So we go to trial and ask for compensation – all I want is $20.  Well what about the $304.72.?  Well, here is the deal. A few years ago I looked at the odds of me getting sick so I decided to gamble some in favor of getting sick.  You know, age, cancer, heart surgery, all not great signs for wellness.  So now I have companies competing to get in on this deal. They all want to gamble with me. These guys want to bet that I will not get sick, but want to hedge their bet some.  They are not totally stupid.  I agree to pay them something every month if they pay all my medical bills. I still think this is a good deal for me. Now back to my jury trial.  What about the money that insurance company paid, you may ask? Well, that is their problem.  The point of all this – and we can argue philosophy all day – the ad that you referenced does not get into all this detail.  All it said is why not tell the jury what my true cost was?  Anyone I ask that is part of the lawyers profession seems to think that the ad is about actual medical bills, and anyone I ask that is just a guy like me thinks they are talking about the $20.  Go figure. 

Answer:  The issue the ad is talking about is exactly what you describe; meaning it’s a provision in the bill that would allow a jury to award only what is actually needed to satisfy the bill out of your pocket. The term we use for it is Billed v. Paid.  The ad does deal with medical expenses as that’s what the provisions in HB 542 itself deals with (Section 1.1).  The “actual cost” or out of pocket expenses are part of the total medical bill, they just happen to be the part you are responsible for.  To use your example, ultimately the $304.72 is the true, real cost of the medical bill. You pay $20.00 of it because of your insurance and the insurance, adjustments and write-offs take care of the remaining $284.72. The problem with the NCAHC ad is the direct quote , “personal injury lawyers don’t reveal the real costs of medical care, just what they are suing for.” That’s patently false because what I am suing for is exactly the real cost of the medical care, not just what my client may have paid out of pocket. Under current law, you are allowed to claim and a jury can award the full $304.72. HB 542 would make it so that you can only recover the $20.00 that came out of your pocket. We are against this provision of HB 542 for several reasons, among others:

HB 542 is unbalanced. Personally, if you want to talk about how Blue Cross Blue Shield paid $284.72 of my bill and only allow me to get back the $20.00 co-pay, then I’m all for it. But, I should also be able to talk about the Defendant’s liability insurer. Right now, neither side can talk about the other’s insurance. When I go to trial, it looks like my client has a total bill owing of $304.72 and if the jury decides to award them that, then it looks like the defendant themselves will pay for it out of pocket. The jury never knows that health insurance paid $284.72 and that I won’t have to pay that amount of the bill, and they never know that Allstate pays for the verdict of the $304.72. The defendant never pays a dime out of pocket. With HB 542, it now allows the defendant to talk about health insurance, but we will still never know about Allstate. It’s unfair and unbalanced.

Health Insurance Subrogation and Limits. While you may have health insurance, many health insurance plans are entitled to be paid back from what you receive in a third party claim. Examples include government sponsored plans like the State Employees Health Plan, Medicaid and Medicare. When you have a private plan, if your employer crosses state lines they may fall under a federal law called ERISA ,which also allows them to be paid back. Most health plans also have benefit ceilings. This is a provision specifying a “maximum lifetime benefit.”  The amount specified is the total amount your insurance company will pay on your behalf over the course of your lifetime. This amount begins accruing the date your policy begins and continues until your policy terminates for any reason. Let’s say you were involved in an extremely bad accident and were admitted to the hospital for a month for your injuries. Your total medical bills were $120,000.00. You paid $20,000.00 of that out of pocket, and the health plan paid the other $100,000.00. Your health plan has a benefit ceiling of $1,000,000.00. Fast forward five years. You now develop cancer and have to undergo numerous rounds of chemo therapy, spend a lot of time in the hospital and have a few surgeries. Your other health problems, from the benign occasional flu to more serious conditions like heart disease, cause the health plan to payout more money. It’s foreseeable that you very well could reach that $1,000,000.00 benefit ceiling. If you are only allowed to recoup $20,000.00 from that $120,000.00 in medical bills from the accident under HB 542, you have now lost $100,000.00 in insurance benefits that you have paid monthly premiums for, all  because of the negligent actions of someone else. You will never be compensated for this loss under HB 542.

HB 542 is unfair. You are one of the many responsible Americans who have gone out purchased health insurance. Each month, you pay good money for that health insurance benefit. We are all required to also pay good money for car insurance. The law requires this so in the event we hit somebody and injure them, that car insurance will be there to compensate that person for their losses. Why then, should that car insurance company get to profit from the money you pay for your own health insurance? The car insurance company has been collecting premiums from the defendant for the car insurance policy meant to cover the very same medical expenses as your health insurance. The wrongdoers and those who hedge their bets with them should not profit on the backs of the innocent victims. This is one of the reasons why many of us have begun calling HB 542 the “Insurance Company Bailout Bill.” It will allow the liability insurers to continue collecting premiums from the negligent wrongdoers, but will entitle them to have to pay out less when the risk they contracted for occurs. This will result in higher profits for the multi-billion dollar Wall Street industry, all at the expense of fair compensation for the working class North Carolinian.

I hope this helps clear up the confusion. If not, let me know. And, as always, I welcome any questions any of my readers have about the topics in this blog.

Disclaimer: The views of the author are his own. This blog post is not intended to convey any specific legal advice upon any specific individual. Part of the question and answer were edited for publishing on this blog for sake of clarity and space constraints. The author’s wife gets upset when he answers her questions with, “huh?” The author does not understand why. She claims the author is not listening to her. The author maintains that is false, the author just did not hear her over the television volume. Hearing and listening are different, therefore she needs to speak louder. While the author is normally good at crafting successful arguments, he has found this one fails more times than not. Luckily, the author has a comfortable couch. The author hopes he does not upset any of his readers with the answers to their questions. Of course, the author’s response will probably not be “huh?”

About two years ago, someone rear-ended my wife. There she was, sitting at a stop light waiting for it to turn green when some guy on a cell phone hit her because he didn’t know red meant stop and that my wife’s car was not a ghost he could just drive right through.  Fortunately, no one was injured. What do you suppose she did?

If you answered, “Called her husband, who is a lawyer and handles car accident cases all day, every day,” you would be wrong. She did what a lot of people do: exchanged insurance information and left the scene.  They didn’t call the police, and no police report was ever made.

When involved in an accident, a lot of people would prefer not to call the police. The at-fault party most commonly does not want to involve the police because they are afraid of insurance points and getting a citation. The guy who got hit most commonly does not want to involve the police because they don’t want to wait around for them, or they are just trying to be nice and believe they will handle the damages on their own with the at-fault driver. Not wanting to call the police is understandable, because, like with lawyers, most people would rather not have to get involved in dealing with them.

That begs that question: if you are in an accident, are you required to call the police? The answer, as usual, is very lawyerly. It depends.

Under North Carolina General Statute 20-166.1, “the driver of a vehicle involved in a reportable accident must immediately, by the quickest means of communication, notify the appropriate law enforcement agency of the accident.”  The police officer must then investigate the reportable accident and write a report within 24 hours. This report is subsequently communicated to the DMV.

This does not mean that you are required to call the police after every accident. You only have to call after a “reportable” accident. This term is defined in N.C. General Statute 20-4.01(33b) as “a crash involving a motor vehicle that results in one or more of the following: a) Death or injury of a human being, b) total property damage of one thousand dollars ($1,000) or more, or property damage of any amount to a vehicle seized [for offenses involving impaired driving while licensed revoked or without license and insurance].” So, unless there is injury and/or more than $1,000 damage to the vehicles involved, the police are not required to be called and a report does not have to be made.

Even when an accident is reportable, some individuals still choose not to report it. This is not only the wrong thing to do because it is illegal, but if a legal action should become necessary down the road the police report often plays a vital role in the proceedings. A police report contains the names and information of both parties, the results of the officer’s investigations, a diagram of how the accident occurred, injury information, property damage information, findings of fault, and estimates of speed, among other value information.  Thus, if you have been involved in an accident that is more than just a very minor fender bender or there have been injuries, it’s best to call the police.

Disclaimer: The views of the author are his own. Nothing in this post should be construed as to convey any specific legal advice to any specific individual.

I imagine you have read, seen and heard a lot about tort reform recently.  As the battle continues over tort reform in North Carolina, both sides of the aisle have been heating up the debate with radio and television ads. The debate has generated a lot of news coverage and letters to the editors. Speaking to the times, social media has also become a vital tool for both sides as Facebook statuses, tweets, and blogs hit the internet every day, sometimes several times a day, regarding the subject.

The debate on tort reform is nothing new. It has been around for well over two decades, and has become a focus of politicians on both the national and state level for the better part of the past fifteen years. Those who back reform, mainly Wall Street corporations and their special interest group the U.S. Chamber of Commerce, constantly bemoan lawsuit abuse, frivolous litigation, and the lawsuit “explosion.” To be fair, there are frivolous lawsuits filed everyday in this country. But, the problem is nowhere near the level of catastrophe these groups would have you believe. Lets also not overlook those safeguards the system has in place already, which weed out these lawsuits many times before they even get off the ground.

All rhetoric aside, are the lawsuits trial lawyers like me file everyday such a bad thing after all? The lawsuit is a tool available to all of us, and is designed to enforce our rights. It is Justice’s sword. Without lawsuits, products would not be safer. Wrongdoers would not be punished. It was a lawsuit that led to Brown v. The Board of Education and ended “separate but equal,” integrating our schools. Lawsuits led to Griswold v. Connecticut and Lawrence v. Texas, keeping the government out of our bedrooms. It was a lawsuit that led to Reno v. ACLU, which helped ensure continued free speech rights on the Internet.  Lawsuits exposed generations of sexual abuse of children at the hands of priests. Lawsuits exposed the dangers posed to the public by tobacco and asbestos.

Good or bad, lawsuits are under attack. Especially those filed for a tort, or a civil wrong committed against another. Politicians and Wall Street interests seek to dull Justice’s sword for those working class individuals injured through the fault of someone else, largely because those injuries are insured by corporations looking to generate record profits rather than do what is fair and reasonable. I think we can all agree that a person who is hurt through the fault of someone else should be fairly compensated for their medical expenses and other damages. It would hardly be a good argument for the tort reformers to state that this principle is frivolous, and should be limited so that companies can make more profit. So instead, they attack people like me in expensive, well-packaged thirty second sound bites.

North Carolina Representative Stephen LaRoque (a Republican serving Lenoir, Wayne and Greene counties), is one of the elected officials pushing for tort reform in North Carolina. Rep. LaRoque believes strongly there should be a cap placed on non-economic damages to limit the recovery of victims of personal injury in North Carolina. He has been qouted saying, “‘Tort reform is vital if we are going to reduce the cost of health insurance,’ blaming ‘liberal trial attorneys trying to buy bigger yachts’ for driving up insurance costs for health care providers.”

I think this is a good time for a lesson on defamation. Defamation is a tort that occurs when an individual damages the reputation of another. The two main forms of defamation are libel and slander.  Libel is defamation in published form, and slander is defamation in audio form. It is an actionable tort, meaning that a person can file a lawsuit to collect money damages if they have been victimized by someone’s defamation of their character.

On October 4, 2010, Representative Stephen LaRoque filed this lawsuit in Lenoir County Superior Court for defamation. Rep. LaRoque seeks not only compensatory damages, but also punitive damages. The lawyers hired by Rep. LaRoque are lawyers that represent victims of personal injury. While pushing to limit peoples’ ability to pursue torts, he himself files a lawsuit based in tort and hires a law firm that handles cases that are “driving up insurance costs for health care providers.”

Part of the job of a legislature is to solve problems.  Let us now see if we can solve the following tort reform problem together for this particular legislator:

Scenario No. 1: A two year old child is left with a permanent brain injury and will never recover. She suffers seizures and requires around-the-clock care. She drools on herself. She cannot talk. This child is fed through a tube at every meal, and this will likely never change. This child requires therapy multiple times a week. She will never lead a normal life. This child’s injury was caused by a medical error. A preventable medical error. A lawsuit is filed to compensate this child for the wrongdoer’s actions, and to provide the financial resources needed to pay for the care she will forever need.

Scenario No. 2: A politician runs for office. His opponent distributes flyers as ads against him. The politician is angry with the ads, and doesn’t believe they are right. The politician wins the election, despite the ads his opponent runs. A lawsuit is filed by the politician against his opponent to obtain financial compensation for his allegedly bruised reputation.

The Tort Reform Problem: Which of the two scenarios above is the ”frivolous” lawsuit?

If the tort reform measures backed by Rep. LaRoque and others in the General Assembly pass, the child described above will never be able to fully recover fair and just compensation for the avoidable actions of another that permanently ruined her life. The cost of her care may very well be placed on the taxpayers when the family can no longer afford to pay the bills, because her recovery was limited by an arbitrary cap set by legislatures like Rep. LaRoque. Meanwhile, Rep. LaRoque would be left able to fully recover fair and just compensation for words somebody else said about him, all without the worry of a cap on the damages his trial lawyers collect for him if they are successful with his lawsuit. Help us in defending your rights; tell Rep. LaRoque and other supporters of SB 33, HB 542, and HB 709 to vote ”No!” on tort reform.

Disclaimer: The views of the author are his own. Nothing in this post should be construed to provide legal advice to any individual. The author is a trial attorney. He takes issue with the accusation that the lawsuits he files drives up everyone else’s health care costs. He fails to see how recovering money to enable his uninsured clients to pay those very bills would raise health care costs. Perhaps you can explain to him how it’s possible. The author also takes issue with the accusation that he files these lawsuits to buy a bigger yacht. In fact, the author does not own a yacht. This makes the author’s wife sad. The author can’t even afford a kayak, quite honestly. This makes the author’s wife even sadder. Perhaps the author should look into the possibility of a defamation lawsuit.

I am a North Carolinian for affordable health care. I suspect you are as well. Affordable health care would certainly benefit my clients who have no health insurance and are faced with huge medical costs through the fault of someone else.  When I got the bill from a local hospital after my wife had to recently go the emergency room, my support for affordable health care certainly was high (as was the bill). My wife’s as well, partly for that reason and for the fact that it would also benefit the patients she treats as a registered nurse.

My wife and I are apparently in good company. A special interest group, North Carolinians for Affordable Health Care, has been running television ads throughout the state pushing for affordable health care for our citizens. I can hardly applaud their efforts, however, as they use their name and the ruse of pushing for affordable health care to support North Carolina House Bill (NC HB) 542. As you know, Faithful Readers, this is the proposed tort reform bill currently pending in the North Carolina General Assembly.

Ironically, while I was at home sick on Monday I saw the new television ad from the NCAHC talking about affordable health care at least a dozen times. The commerical made me feel even more sick as it is filled with lies. Lies?! Yes, lies. I know that is a harsh and accusatory word, Readers, but even with a thesaurus handy I am at a loss to find a better one to describe what I heard in the commercial. As I spend this week preparing for an upcoming personal injury trial involving a fair amount of medical bills, I thought this would be a good time to set the record straight on how medical bills are really presented at trial as opposed to how the tort reformers would like you to think they are presented at trial.

NCAHC Lie No. 1: “Under current law, personal injury lawyers don’t reveal the real costs of medical care, just what they are suing for…”

False. I have never presented to a jury anything but the actual bill my client received from their health care provider. I have yet to see, hear about, or know another personal injury attorney who has not presented to a jury anything but the actual bill their client received from their health care provider. We admit these bills into evidence, and the jury gets to see them. They get to hold them in their hands. They get to read and examine them. In my last trial, my client had $4,861.65 in medical bills. These bills were admitted into evidence and the jury saw a bill for every penny of that amount.

The attractive 30 second sound bite from the NCAHC aside, ask yourself whether what the NCAHC says actually makes sense. In a personal injury case, the plaintiff has the burden of proof. This means that we must prove, by the greater weight of the evidence, that the plaintiff was injured by the negligence of the defendant and that damage resulted. Damages in a personal injury lawsuit include fair and reasonable compensation for medical expenses, lost wages, pain and suffering, permanent injury, future medical expenses, and loss of earning capacity among other items.

If my client had incurred $4,861.65 in medical bills; and I have tangible bills from the providers showing that he incurred $4,861.65, how is that not the real cost of my client’s medical care?  How would I meet my burden of proof to a jury by not showing them those bills? Would you award me whatever I said my client wanted for medical expenses without seeing the bills in evidence? You can provide your answer in a comment to this post, but I think I already know what two-letter word you would write down.

NCAHC Lie No. 2:  “…and you pay in higher health care costs.”

False.  This conclusion has to be false because the argument supporting it is false. Apart from that, I would love to see one independent study showing empirical data that supports the proposition that a victim of negligence being fairly compensated for the medical expenses they incurred due to a wrongdoer raises everyone’s health care costs. I’m an arguably smart guy who’s good at research, and I have yet find or see one in the ten years I’ve been following the tort reform debate.

House Bill 542 is not the proposed medical malpractice reform bill (that’s Senate Bill 33). HB 542 applies to all civil actions, and the provision in the bill that this ad specifically deals with applies mostly to your average personal injury claim, such as a claim from an automobile accident.  How would Nationwide, Allstate, State Farm, Progressive and the rest of the automobile insurers raise health care costs when they indemnify their insured defendants when a verdict is rendered against them for their wrongdoing?

Taxes and health care costs are raised however, when victims of negligence are left unable to fully recover for their damages because of tort reform. They become wards of the state and enroll in Medicaid and Medicare. And/or, the cost of care is sometimes so great that they are left with no option but to file bankruptcy, leaving the medical providers unpaid. This results in higher taxes and health care costs for us all. Is it fair for the taxpayers to shoulder this burden when the wrongdoer had a liability insurance policy in place to cover these very costs?

NCAHC Lie No. 3: “If you were on the jury, would you want all the facts, or just the ones the lawyers want you know?”

True and False. In my experience, juries do want all the facts. And, I want them to have all the facts. Unfortunately, the rules of evidence prevent certain facts from coming into evidence because the quality of the evidence is deemed  to be unreliable or far too prejudicial to one or both sides. I call this question posed by the NCAHC a lie because it’s posed to push for HB 542. HB 542 removes all collateral source protection from the plaintiff, but leaves collateral source protection intact for the defendant. In non-lawyer speak, this means that if you are on a jury, you will get to hear all about how Blue Cross and Blue Shield paid for a part of the plaintiff’s medical bills. But, you will still never hear that if you render a verdict against that nice soccer mom who happened to rear-end the plaintiff when she was talking on her cell phone,  Allstate or another insurance company pays that verdict and not the soccer mom from her kids’ college fund. By supporting HB 542, does NCAHC really want you as a juror to know all the facts?

Should jurors be able to hear about the plaintiff’s health insurance? That’s a good question. A better question might be whether the wrongdoer should benefit from the plaintiff being responsible enough to have health insurance and the plaintiff’s hard work going to pay for those premiums? Let us also not forget about those health plans that have lifetime payout limits and/or get reimbursed from a third-party recovery what they paid on the bills. Even if it is a good idea to talk about the plaintiff’s insurance with a jury, why is it also not a good idea to talk about the defendant’s?

North Carolinians for Affordable Health Care is lobbying the legislature to pass tort reform measures that will be detrimental to working class North Carolinians for the sake of Wall Street interests. By the organization’s very name, they purport to speak for you. If you disagree, then let NCAHC know. Also let the decision makers who represent you in General Assembly know.

Disclaimer: The views of the author are his own. Nothing in this blog post should be construed as legal advice to any individual.

I say stupid things sometimes despite my vast higher education and life experiences. Most of the time, these stupid utterances occur in the context of marital relations. Consider the following exchanges:

Wife: Does this make me look fat?

Stoopid Me: Kind of.

—–

Wife: Do you like this new outfit? I worked hard on putting it together.

Stoopid Me: Eh, not really.

—–

Wife: Why can’t you ever just pick up your clothes and put them in the laundry basket instead of the closet floor?

Stoopid Me: Because I’ll do what I want.

As a result, I have learned that our couch can be quite comfortable to sleep on and that our German Sheppard is fond of my side of the bed. I have also become aware that on occasion I am an [explitive sensored], at least according to my wife. Folks, in case you were not aware, the average cost of divorce in North Carolina is rougly $3,500.00 and the average rate for a divorce attorney is about $200.00 per hour. This is expensive, so when these situations arise I try to mitigate the damages I have allegedly caused with flowers, shoes, shiny things, and dinners at nice restaurants.

A marriage is not the only place where mitigation must take place. A plaintiff in a personal injury lawsuit is also under a duty to mitigate their damages.  A jury is instructed by a judge in a trial on the defense of mitigation as follows:

“A person injured by the negligent conduct of another is nonetheless under a duty to use that degree of care which a reasonable person would use under the same or similar circumstances to seek treatment, to get well and to avoid or minimize the harmful consequences of his injury. A person is not permitted to recover for injuries he could have avoided by using means which a reasonably prudent person would have used to cure his injury or alleviate his pain. However, a person is not prevented from recovering damages he could have avoided unless his failure to avoid those damages was unreasonable.”

For example, let’s say that a doctor recommended that a plaintiff undergo physical therapy as conservative treatment to try to alleviate their injuries. Plaintiff, obstinate like the author, refused to undergo physical therapy and goes about his daily life. The plaintiff goes mountain biking instead of to physical therapy, and causes his injury to become more severe and aggravated. He must now have surgery, whereas if he had undergone the physical therapy surgery could probably have been avoided. The defendant in a situation like this could raise the affirmative defense of mitigation, and it would be possible that the plaintiff could be stuck paying for his own surgery because he failed to mitigate his injuries and damages.  The defense could also potentially be raised in situations where you underwent unauthorized, unhelpul, duplicative and/or excessive treatment.

But what happens if you do not have health insurance and your doctor has recommended surgery or some other expensive treatment you cannot afford? What if you have health insurance, but the risks of recommended treatment make you not want to do it (e.g., paralysis and death vs. 10% of effectiveness)? The law does not draw a hard and fast line on the defense of mitigation. It is a reasonable person standard, and the jury is to consider all of the circumstances surrounding one’s decision not to follow medical advice. These circumstances may include the financial condition of the plaintiff, the degree of risk involved, the amount of pain involved, the chances of success, the benefits to be obtained from the procedure, the availability of alternate procedures, whether the various healthcare providers agree among themselves as to the advisability of the procedure, and the knowledge or lack of knowledge of the plaintiff.

The burden of proving the defense of mitigation is carried by the defendant. However, if they are able to prove that the plaintiff acted unreasonably and failed to mitigate their treatment, it is a jury’s duty to decrease the plaintiff’s actual damages because of his unreasonable failure to avoid or minimize his injuries.

It is important should you find yourself injured by the negligence of another to follow the recommendations of your medical providers and undergo the recommended reasonable treatment. If you fail to do so, and you have not made a reasonable decision based on fully informed consent, you could be stuck paying some of those bills yourself.

Disclaimer: The views of the author are his own. Nothing in this blog post should be construed as legal advice. Examples of the exchanges between the author’s wife and the author are few and far between. Divorce has never been contemplated, and the author would like to extend a special  thank you to  the excellent chef at Cafe Luna, the jewlers at Tiffany & Co., the growers of flowers, the chocolatiers at Hershey, and the shoemakers at Cole Haan for this.  On behalf of his wife, the author would like to extend a special thank you to Buffalo Wild Wings and REI for those [much more frequent] occasions when she utters equally stoopid things.

If you’ve just been notified about a trial date, I imagine you are probably feeling two things: 1) scared, and 2) uncertain or confused. Many people do not know what happens during a jury trial, and I find with my own clients that there are a lot of misconceptions concerning what will occur in the courtroom. I blame Judge Judy, the writers of Law & Order, and the producers of John Grisham movies. Even worse, if the client is like my wife, they base their knowledge of the courtroom on Legally Blond and Legally Blond 2. This is wrong on many levels, the most basic level being that somebody actually made those movies and that Reese Witherspoon’s agent convinced her to do them.

Once your case is actually called for trial, the case will progress through several stages. People usually know that their lawyer is going to argue, the other guy’s lawyer is going to argue, and that the jury is going to make a decision. They also know that they have to testify, but I often find they know little else about what occurs. If you are one of these people, allow me to try to fix that.

Pre-Trial Motions. These motions can take a variety of forms and concern a variety of issues. Sometimes, the lawyers are trying to argue the exclusion of certain witnesses. Most of the time, they are trying to argue the exclusion of certain evidence or the mention of certain facts to the jury. These are called motions in limine, and are designed to prevent either side from mentioning or eliciting testimony concerning issues and circumstances that should not be considered by the jury. The reason lawyers make these motions instead of just waiting to yell out “Objection!” in the middle of testimony is that these motions are often based on items that are thought to be so prejudicial to one side or another that the jury will find them hard to forget and be influenced by them even if the objection is sustained. The most common motions in limine involve the mention of insurance during the course of the trial.

Voir Dire.Voir dire is a pretentious lawyer phrase for jury selection. The folks called for jury duty will be brought into the courtroom and both sides will question prospective jurors. Lawyers may seek to excuse certain jurors for cause, meaning that they feel the juror has demonstrated that they cannot be fair or cannot follow the law. There are an unlimited number of challenges a lawyer can make for cause. The lawyers may also seek to excuse certain jurors for other reasons. It could be they said something the lawyer doesn’t like for the case. These are called peremptory challenges; those in which the lawyer can excuse a juror for any reason, and each lawyer has eight of these challenges per case. Some lawyers treat jury selection like an inquisition. Good lawyers treat it like a conversation. The point is to discover how jurors feel about certain issues surrounding the case to ensure a fair trial can be had by both sides. The judge has wide discretion on how to let jury selection proceed. In automobile or personal injury cases, expect to hear the phrases “McDonald’s coffee” or “people trying to get something for nothing” to come up at some point.

Opening Statements. After the jury is selected and sworn in (empaneled), lawyers for both sides will present an opening statement to the jury. Some people call this “opening arguments,” but that term is misleading as an opening statement is meant to be a forecast of what the lawyer thinks the evidence will show, and not an argument or analysis of the facts and law. Under North Carolina’s General Rules of Practice, a lawyer can waive an opening statement, but I do not personally know of any who have done this.

Plaintiff’s Evidence. After opening statements, the plaintiff will present their evidence to the jury. This will take the form of admitting documents, photographs, and other items into the court’s record and will also include calling witnesses to testify. This may include the Plaintiff, the plaintiff’s coworkers/employers, doctors and other experts, etc.

Defendant’s Evidence. After the plaintiff rests their case (meaning they are done presenting their evidence), the defendant will put on their evidence. However, since the defendant does not have the burden of proof, they may chose to put on no evidence at all. This frequently occurs in minor impact soft tissue (MIST) cases as it is believe by many defense counsel to be good strategy because North Carolina court rules allow them to have the last argument in closings if they put on no evidence.

Charge Conference. After both sides have presented their evidence, the jury will be sent out of the courtroom and the judge will hold a charge conference. Both sides will confer with the judge on what law the jury should be instructed on at the end of the case.

Closing Arguments. The jury is brought back into the courtroom and both lawyers give their closing arguments to the jury. Attorneys have wide latitude when making their closing arguments, but are prohibited from becoming abusive during arguments.

Jury Instructions (Jury Charge). After closing arguments, the judge will read the instructions of law decided upon in the charge conference to the jury.

Jury Deliberations. The jury is sent back to the jury room and will select a foreperson. The jury will then begin their deliberations on the issues of the case. In the average automobile negligence case, the jury will be called upon to answer two issues: 1) Was the plaintiff injured by the negligence of the defendant?, and, if so, 2) What amount is the plaintiff entitled to recover for personal injury? Deliberations take as long as they take or until it is clear the jury will never reach a decision (hung jury). I have had a jury take as little as 2 minutes to reach a verdict. I have had juries take several days to reach a verdict. I have also had the unfortunate pleasure of having two juries hang; in these instances a mistrial is declared, a new trial date is assigned, and we start the process all over again with a new trial.

After the jury reaches a verdict, it will be announced by the Clerk and recorded. A judgment will then be entered and the case is over unless grounds for appeal have arisen throughout the course of the trial. There are also motions that are made a various stages of a trial, such as a motion of directed verdict. These motions are often routinely made not because there is substance behind the motion, but rather because the motion is required to be made at the close of both side’s evidence in order to preserve the defendant’s right to appeal in certain instances.

If you have been asking yourself, “what happens at a jury trial?” I’m hoping that you just have not yet asked your attorney the question. Trials can be complicated and require a certain skill set in order to be done successfully. If you are a pro se litigant about to go to trial, you may benefit from an experienced trial lawyer’s representation.

Disclaimer: The views of the author are his own. Nothing in this post should be construed as legal advice. The author has modeled this post on Civil Superior Court, as this is the court division the author primarily practices in. The author apologizes if he accidentally offended fans of Legally Blond, Legally Blond 2, or Reese Witherspoon. It’s okay to like bad movies. The author is a fan of Aliens vs. Predators, and his wife frequently reminds him that this is a horrible movie.

Q: If a skinny lawyer and a fat lawyer jump out of an airplane without a parachute at the same time, which one will hit the ground first?

A: Who cares?

Of course, neither probably hits the ground because they both found a loophole in the law of gravity.

“The first thing we do, let’s kill all the lawyers.” -William Shakespeare.

Q: Why don’t lawyers play hide-and-seek?

A: Because nobody would look for them.

The page-a-day calendar on my desk contains365 lawyer jokes and quotes about lawyers like the one from Mr. Shakespeare above. There are dozens of books out there devoted to unflattering lawyer jokes. People moan and complain about lawyers all the time. It is clear that very few people out there like lawyers.

Until they need one. Almost everyone at some point in their lives will need a lawyer. You likely need a will to make sure your assets go to where you want them to go when you die, and a lawyer will need to draft it. You might have received a speeding ticket, or been arrested and need help. Your landlord may be trying to evict you, or your mortgage company may be trying to foreclose. The problem for many individuals who find themselves in these situations is the cost of legal services.

Fortunately, there are solutions to this problem. If your legal problem deals with a criminal issue, you may be eligible for a court appointed attorney. If your legal problem deals with the areas of consumer law, education (e.g., school discipline or student’s rights), employment law, family law, health law (e.g., Medicaid, health insurance problems), housing issues, or income maintenance (e.g., food stamps), then you may be eligible to receive assistance from Legal Aid.

For those injured by the negligence of others, contingency fees offer a solution that allows you to retain legal help. Almost all personal injury attorneys who represent negligence victims, including this firm, operates on a contingency fee basis.  A contingency fee is a percentage of the recovery obtained for the client, and often ranges between twenty-five percent and forty percent. The fee is not taken until the end of the case.  If no recovery is obtained for the client, then there is no fee owed.

Many people criticize contingency fees arguing that they promote “frivolous” litigation. Now, does that argument make sense? Why would a law firm, which is a for profit business, handle a truly frivolous lawsuit and face a very high probability of not getting paid for the hours upon hours of work they put into the case?  I submit that they wouldn’t.

What these critics overlook  is the purpose of the contingency fee. The contingency fee system is an important element of America’s legal system because without it, only the wealthy would have the means to hire an attorney to seek compensation for their injuries. Unlike the large, powerful insurance companies who have the financial resources to keep defense firms on a regular retainer, very few ordinary people could afford the thousands of dollars that would otherwise be needed to retain legal services at an hourly rate, and to then also pay the costs of investigating and litigating a claim.

Why should those suffering from injuries at the hands of another be left without justice simply because they cannot afford justice? When we have a logical and good answer to that question, only then can we talk about the (perceived) evils of contingency fees.

Disclaimer: The views of the author are his own. Nothing in this post should be construed as legal advice. The author, even though he is a lawyer, understands that people enjoy lawyer jokes. He even enjoys a few himself. However, it is important to remember that you should not tell lawyer jokes. Most lawyers do not find them funny, and most regular people do not think they are jokes.

This is the Ford Pinto. About forty years ago, Ford chose to ignore a safety defect that caused this to happen if the Pinto was rear-ended. Ford knew of the safety defect, and knew that the cost to cure the defect was $11.00 per vehicle. They chose to put the vehicle on the market anyway without fixing the defect, and as a result many people were seriously injured, maimed and killed. Why did Ford make this choice? It was a profit consideration.  Some would argue this is greed.

You can no longer buy a Pinto because Ford stopped making them. Over the years, cars have become safer. This is in part due to trial lawyers who sued Ford to secure justice for those injured, maimed and killed due to Wall Street greed. The civil justice system is the only redress ordinary citizens like you and I have in these situations. It is our David to the wealthy and powerful Goliaths. Today, the civil justice system is under attack, and so are your rights.

Republican and Democratic legislatures in both chambers of the North Carolina General Assembly currently seek to pass new tort reform measures under a bill entitled, “Tort Reform for Citizens and Businesses Bill.” Many critics of this bill have begun calling it the “Liability Insurance Bailout Bill,” as its effect if enacted into law will be to generate larger profits for liability insurance companies at the expense of the rights of working class North Carolina taxpayers.

If the bill becomes law, it will give immunity from product liability suits to manufacturers of goods where the good has been manufactured in accordance with the terms of approval, license or similar determination of a government agency. In lay terms, that means that had this bill been law when the Pinto was made, then the familys of those killed and those who had their lives permanently changed for the worse would have been barred from any recourse against Ford. What incentive would Ford have at that point to fix the $11.00 defect?

This provision of the bill is the only one of its kind in the United States. These are just a few of the products that would fall under the broad provision of the Tort Reform Bill: medications (e.g., Vioxx), automobiles, airplanes, art materials, asbestos, baby bouncers and walkers, bicycles, bicycle helmets, bunk beds, carpets and rugs, child-resistant packaging, cleaning products, clothing, cosmetics, baby cribs, infant cushions, dietary supplements (e.g., Phen Phen), fire exstinguishers, first aid kits, food, appliances, and childrens’ toys. The complete list is extensive and encompasses virtually every product we buy and use on a daily basis.

The bill, which is currently pending in the House Select Committe on Tort Reform, also includes some of the following provisions:

• Billed v. Paid. For every North Carolinian injured or killed by someone else’s wrongdoing, the bill would give a credit to the Defendant and their insurance company if the innocent victim bought and paid for their own medical insurance or other insurance and uses that insurance to pay their hospital bills or make up for their lost wages. The bill allows the wrongdoer’s insurance company to reduce the amount they owe the injured victim using the victim’s own insurance. This means that if somebody injures you because of their own carelessness, they will benefit from the insurance you work so hard to pay for even though they have their own insurance.
• Elimination of the Collateral Source Rule. This 80 year old rule of evidence currently prevents either side from mentioning the existence or non-existence of any type of insurance or collateral payment in the case. Since the rule was enacted, it has enjoyed a proven track record of preventing unfair and excessive verdicts for both the Plaintiff and Defendant in civil cases. The bill removes all collateral source protection to the Plaintiff, but leaves intact all protection for the Defendant and will deprive North Carolina juries of the information they need to make a fair and just decision on the case. Additionally, the Defendant’s liability insurance company will be able to introduce collateral source evidence at trial and receive a credit for the victim’s own insurance.
• Limitations on Attorneys’ Fees. This bill provision will make it cost prohibitive for damaged victims to sue on smaller automobile accident cases and will allow the insurance companies to pay whatever they want on these small cases. Often, in my own experience, insurance companies already offer victims much less than the medical bills the victim incurred even when the fault of their insured is clear. Just because they can. How much worse will this practice get if this legislation is enacted?
• Legalized Negligence for Emergency Room Physicians. The bill contains provisions that would insulate emergency room physicians from any and all liability for wrongdoing unless it can be shown the emergency physician engaged in intentional misconduct.

Tort reform measures are often packaged in a way that seem like a good idea, but which are unsupported by any facts. In fact, many of the “facts” the supporter use to advance their “reforms” have been shown not to be true. I have blogged about this issue a great deal recently, and you can read about this in my posts entitled: Lessons in Frivolity , The U.S. Chamber Pot, and Thinking Caps.

Supporters of the bill argue that the reforms are necessary to create jobs for North Carolinians and to prevent good doctors from leaving the State. However, opponents argue that the supporters of the legislation have presented no facts or rationale to support what amounts to a dismantling of the civil justice system in North Carolina. In fact, North Carolina is ranked No. 1 by Site Selection Magazine as the most “business-friendly” State. North Carolina has one of the most restrictive products liability statutes in the country, and is one of only four jurisdictions still adhering to the doctrine of contributory negligence. This doctrine of law holds that if a person contributes to their injury as little at one-percent, they are barred from any recovery at all. The vast majority of states in the country have adopted a less harsh doctrine of law that allows for recovery even if they contribute to their own injury.

Campaign finance records show that many of the supporters of the Tort Reform for Citizens and Businesses Bill received campaign contributions from liability insurance companies, pharmaceutical companies, medical special interest groups, and insurance trade associations. The House Select Committee on Tort Reform is scheduled to have a public hearing on the bill on March 31, 2011. It is unclear whether Governor Purdue will sign the bill into law should it pass both chambers of the General Assembly.

When this country was founded, there were certain rights felt to be so important  they were incorporated into our Constitution as the Bill of Rights. As American citizens, we hold these rights near and dear to our hearts: the right to free speech, the right to freedom of religion, the right to bear arms, the right against self-incrimination, the right to counsel, the right to be secure in our possessions. We also have a right to a fair justice system and jury. The 7th Amendment to the Constitution reads:

“In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any Court of the United States, than according to the rules of common law.”

This right is in jeapordy for North Carolina citizens. Justice is an endangered species for every citizen in this State. Please take a moment to contact your elected officials and remind them that they work for you, the citizens, and that you feel that fairness and justice should win in this State over corporate profits and campaign contributions. I promise you that making a quick phone call or sending a quick email voicing your concerns will take you less time than it takes you to get your morning coffee at Starbucks.

You can determine which district you are in by your voter registration status, which can be found by clicking here.

You can find your elected officials’ contact information by clicking here.

For more information on this legislation, please visit:

The North Carolina Advocates for Justice

Let Juries Decide

Protect NC Workers

Disclaimer: The views of the author are his own. Nothing in this post should be construed as legal advice.

Have you ever fantasized about being interesting enough to have somebody make a movie about your life? I have. Some days, I like to think the movie would resemble something like A Time to Kill or To Kill a Mockingbird. Other days, I’m afraid it will more closely resemble something like My Cousin Vinny. And then there are those days, called Mondays, where I think it will more closely resemble any one of a dozen horror movies.

Who will tell my story, though? Will it be Steven Spielberg? Probably not; my luck would more like to have me paired with the director and screenwriters from Gigli or From Justin to Kelly.  I think someone like Tom Cruise, Ryan Phillipe, Johnny Depp, or Matthew McConaughy should play me as they most closely resemble my physical appearance.  But, I think luck would probably have me played by Zack Galafinakas or Seth Rogan.

As with the movies, who tells your story at trial can have a large impact on its success. Many clients assume that I will be the only one telling their story. They are often crushed and become nervous when they realize that they to will have to tell their story by testifying. Often, they have the misconception that the real world works like Law & Order and that they do not have to take the stand. Unfortunately, it doesn’t work that way in a civil case.

The success of the trial also depends on others telling the client’s story. Expert medical witnesses can often be a great choice to develop the story of what the client went through depending on the type of treatment they received. Many attorneys sometimes overlook the value of an expert witness as a harms and losses witness, and focus solely on the facts and opinions; they forget the “how does that feel for the patient” and “what’s that like for the patient” questions. The defendant themselves may also prove to be a useful storyteller for the plaintiff depending on the facts of the case.

Perhaps most importantly, however, the Plaintiff’s own friends, coworkers, church members or family can help tell the their story. It is simply not enough for most jurors to hear this type of testimony solely from the Plaintiff  as it is self-serving in the eyes of a juror. Having others that know the client testify at trial helps give different point of views to the client’s story, and bolsters the credibility of the pain and suffering argument in the eyes of the jury. A client would do well to provide their attorney with a list of people who know them that can help shed light on what they went through after their injury.

Disclaimer: The views of the author are his own. Nothing in this post should be construed as legal advice. The author, after consultation of his wife, is realistic and acknowledges that he does not look like Tom Cruise, Ryan Phillipe, Johnny Depp, or Matthew McConaughy. This is why the author does not get paid lots of money to have people take pictures of him to The GAP, Calvin Klein and the like, nor appear on the cover of People Magazine for their “Sexiest Man Alive” issue. Therefore, the author will settle for James Franco, Jake Gyllenhaal or Ryan Reynolds.

There has not been a day that goes by recently that I do not become agitated at some point. True, I do drive in rush hour traffic. But, that’s not what agitates me. I am married, but she doesn’t agitate me either. What does agitate me, however, is the daily news I am reading about tort reform legislation making its way through the North Carolina General Assembly and other states across the country. I have been blogging quite a bit about this topic recently, mainly because I’m a fan of defending your rights. These tort reform measures do nothing, except to erode your rights to a jury trial and they benefit very few.

You may ask: If that’s the case, and only a very few benefit from tort reform, why is it so popular with politicians?

The answer is special interests make it popular and fund the movements with campaign contributions and PACs. Let’s take a look at Senate Bill 33, which is North Carolina’s proposed medical malpractice reform. The primary sponsor of this bill is Senator Tom Apodaca (R) from the western part of the State, and in the last fiscal quarter of 2010, Sen. Apodaca received campaign contributions from the following entities:

-Abbott Laboratories Employee PAC

-Aetna, Inc. PAC

-Alan Buerger, President of Coventry First (an insurance company)

-Buncombe County Medical Society PAC

-Carolinas Healthcare System Employees PAC

-Marsha D. Ford, M.D.

-GlaxoSmithKline PAC

-Lorillard Tobacco Company PAC

-MedCo Health Solutions, Inc. PAC

-NC Chiropractors Association, Inc. PAC

-NC College of Emergency Physicians PAC

-NC Hospital Association

-OB-GYN Political Action & Education Committee

-Pfizer PAC

-Property Casualty Insurers Association of America

-Raleigh Orthopaedic Clinic PAC

-United Health Group

-Western Radiologists and Surgeons PAC

As you can see, this is a long list and it’s by no means a complete list. Additionally, it’s important to keep in mind that these are just donations received in the last quarter of 2010, not the entire year.

The supporters of tort reform in this state argue that reform is best for North Carolina and it is a critical need for the citizens of this state. The North Carolina Medical Society has stated that SB 33 is, ““a thoughtful package of reasonable, common-sense improvements to state law that will improve the predictability of court cases, make liability insurance more rational, increase patient access to health care, and promote cost savings for the taxpayers of our state and nation.” But, are the sponsors of the SB 33 really looking out for the best interests of the citizens they are elected to represent when their campaigns have been funded and widely supported by insurance companies and medical special interest groups? That’s a question you have to answer for yourself.

Nationally, the same issues arise. If you’re a reader of this blog, you know that the U.S. Chamber of Commerce is one of the biggest supporters and pushers of tort reform nationally. If you are not a reader of this blog, you can learn more about this organization in my post U.S. Chamber Pot.  The Chamber touts itself as “the preeminent group in the country working to end lawsuit abuse and to ensure that businesses receive the fair, efficient, and consistent justice system they deserve.” The Chamber and others in support of tort reform argue that business suffer and therefore so do the rest of us because of outrageous lawsuits and run away verdicts.

But do they? Let’s take a look at State Farm, who is one of the largest liability insurers in the country and who also has a position on the Board of Directors for the U.S. Chamber of Commerce. In 2010, State Farm Mutual Automobile Insurance Company saw profits double to $1.8 billion. In 2009, they only did a paltry $800 million in profit.

Only you can decide whether the individuals pushing tort reform are looking out for your best interests as a citizen. Are they trying to improve your position in society? Or, are they trying to erode your civil liberties and constitutional rights? As you continue to listen to and educate yourself on the state and national debate on tort reform, I at least hope you will remember one thing about our elected leaders pushing for the reforms: Like a good neighbor, the insurance companies are there.

Disclaimer: The views of the author as his own. Nothing in this post should be construed as legal advice, it is provided for informational purposes only.

Tomorrow morning, I will be up at an ungodly early time and headed to Raleigh-Durham International Airport to fly to New Orleans for the weekend. This is nothing new for me, as I have flown many times over the past few years for both business and personal trips on many different airlines. The majority of people I’ve encountered in the terminals bemoan air travel because flights are seemingly always delayed. I would hate to be a customer service representative for an airline based on what I’ve heard. The airlines do not have to do much to please me, however, as I have come to expect delays and a general failure of anything to go right. I just have that kind of luck when traveling. In fact, if my flight and connecting flights leave the gate on time (with me aboard), I am having a great day. If they leave early, I feel the airline deserves some type of medal. Delays are just a fact of life.

Delays don’t just happen in the airports, though. They also happen in our bodies. It is often quite common to see a victim of a car collision go to the doctor for the first time one or two days later. Sometimes its even longer than that. That begs the question: Can someone sue for damages for a car accident after they refuse medical attention at the scene?

Yes, they can. Many doctors will tell you that injuries, especially soft tissue injuries, can manifest themselves sometime after a traumatic event occurs. They can manifest in a matter of hours, or sometimes even days. If you don’t think that makes sense, then think about your last strenuous workout. How did you feel right after the workout? I imagine tired and out of breath, but overall pretty good. Now, how did you feel the next morning when you woke up? Yeah, ouch.

People refuse medical treatment at the scene of the collision in a variety of different ways and for a variety of different reasons. Insurance companies try to exploit the science and common sense reasons to their advantage and often argue that the person either wasn’t injured at all because of it, or that they weren’t hurt all that bad to warrant all that medical treatment and compensation for the suffering they went through. Sometimes, juries buy into these arguments.

One of the common reasons why people refuse treatment at the scene of a collision is our body’s fight or flight response. Imagine the person who was minding their own business and was struck in the rear at a stop light. This is their first accident. In the few seconds after the collision, they have no idea what just happened because they are surprised and confused. Their body reacts by having their heart start beating; faster and faster and faster. Their hands are shaking. They are scared. They don’t know what to do. Adrenaline is released because its a scary and surprising event; and, adrenaline, by its very evolutionary purpose, can mask pain and symptoms of an injury. So, when asked if they are injured, the person often says “No.” or “I’m fine.” It’s not until later, when the victim of the collision calms down, that they begin to feel the pain.

The other common reason is a lack of health insurance. Millions of Americans are in the working middle class and have no health insurance. Ambulance rides are expensive, and so are ER visits. The average ambulance ride in this area costs between $400 and $600. The average ER visit ranges from $900 up to $5,000.00. For those without health insurance, these can be simply unaffordable costs. Thus, it’s not unusual for the person to take some Aleve or Tylenol to see if the symptoms will go away over a few days before seeking medical attention.

Just because someone refuses medical attention at the scene of the accident does not mean that they cannot recover for their legitimate injuries. In some cases, it can create issues in the case and can make recovery harder, but it does not mean you are barred from any recover at all.  The longer the delay in treatment, however, the harder and harder it becomes to convince the insurance company and a potential jury to pay for the bills.

Disclaimer: The views of the author are his own. This blog post is not intended to convey any specific legal advice upon any individual and is intended solely as general information. The author is not a doctor. He bases the medical information in this post solely on his experiences deposing doctors in his cases and the occasional episode of the show “Life in the ER.” The author’s wife is also not a doctor, however, her status as an RN BSN leaves her being pestered in her home life by the author as if she was one. The author is stubborn and does not like going to the doctor. The author’s favorite reason thus far in his career for an individual not receiving medical treatment until sometime after the collision is the incarceration of said individual. This is typically not a good explanation to have to take to a jury. The reason should be obvious.

We have just assigned the claim token CB727MBYH5ME to this claim.

I have been talking a lot about personal injury pain and suffering over the past week.  This is a topic that generates much debate in our society and which has for the most part become a dirty phrase in our lexicon ever since the tort reform debate started.

During trial last week, the jury on the case I was trying had to determine whether my client was entitled to pain and suffering damages in his personal injury claim. First, I would like to point out that “entitled” is the word used in our pattern jury instructions but is a word I have a fundamental disagreement with in these instances. The jury issue, which is phrased typically as “How much is Plaintiff entitled to receive for personal injury?” should really read, “How much compensation should the Defendant be required to return to Plaintiff for personal injury?”  A jury “award” isn’t appropriate either. It’s a verdict. Personal injury damages, whether for medical expenses, lost wages, pain and suffering, or some other item of damages are designed to restore the Plaintiff to where they were before the Defendant’s wrongful actions. The money is designed to make the Plaintiff whole again, not to provide them with profit or a lottery windfall (for further discussion on what the point of personal injury damages is, see my article Thinking Caps).

In addition to pain and suffering being talked about in the courtroom this past week, I’ve been talking a lot about it with clients, prospective clients and I’ve even seen numerous questions posted on AVVO regarding it. The common question being asked is: How much is my pain and suffering worth?

If you Google the issue (which may be why you’re reading this right now), you’ll see there are quite a lot of opinions out there on how you arrive at pain and suffering amounts for your personal injury case. Some attempt to attach a mathematical formula to it, saying that you should multiple your medical bills by two or three. Thus, under this suggestion, if you had medical bills of $10,000.00 then your pain and suffering would be worth $20,000.00 or $30,000.00. These attempts to place formulas on personal injury are fallible, however. Assume that $10,000.00 was for largely diagnostic studies (CT Scans, MRIs, etc.) at the emergency room on just the day of the collision? If the person only treated once and then were fine after that, would that much in pain and suffering be fair compensation? I venture to say many jurors may say it is more than fair. In fact, it is too much.

Assume that the person only had $5,000.00 in medical bills. But, these medical bills were incurred due to a pit bull attack that left the 7 year old Plaintiff with a permanent scar down the right side of her face. She had to undergo a skin graft and will be left with a constant, highly visible and daily reminder of the attack. Her classmates ridcule her for her scars and make fun of her on a daily basis. She cries at night because of all the teasing. This would not have happened if the owner had simply kept the pit bull, who has attacked others before, on a leash or behind a fence. Is two or three times the medical bills fair compensation in this case? Maybe, maybe not. I venture to say many jurors may say that it is not.

The bottom line is there is no mathematical formula you can utilize to determine what your pain and suffering may be worth. The North Carolina Pattern Jury Instruction regarding pain and suffering damages reads as follows:

“Damages for personal injury also include fair compensation for actual past physical pain and mental suffering experienced by the plaintiff as a proximate result of the negligence of the defendant.  There is no fixed formula for placing a value on the physical pain and mental suffering. You will determine what is fair compensation by applying logic and common sense to the evidence.” (emphasis added)

Your pain and suffering is ultimately worth what a jury considers it to be worth, if anything at all. All an attorney can do is give you their best educated hypothesis on what the case could potentially be worth as there are never any guarantees when it comes to taking your case to court. This is why it’s important to ensure that you have experienced and knowledgeable attorneys representing you, as a large variety of factors go into determining what this potential amount may be.

Disclaimer: The views of the author are his own. Nothing in this post should be construed to convey any specific legal advice upon any specific individual.