Hail Cesar!

I think my two year old is absolutely adorable. Each morning, we share breakfast and a cup of coffee together. He has his own special breakfast, but always stares longingly at mine. After breakfast, we high-five each other and I go about my day and he goes about his. At night, we usually curl up together on the couch and he eventually falls asleep with his head in my lap.

But, while he is adorable, he is also a handful and quite frankly just a plain old jerk sometimes. He makes other peoples' two year olds cry and run away. He is loud and unruly, and he makes other people scream with fright and run for the hills as if he were one of the Children of the Corn. So, to control his aberrant behavior my wife and I decided to enroll him in a basic manners class before he caused so much trouble he got us sued. Imagine our dismay when the owner of said class emailed me one day and said that our particular two year old was too much of a handful for the basic manners class. He wasn't welcome there and instead would have to go to a "special" class.

At this point, I think it's probably important to mention that my two year old isn't what you might think him to be. Did you know that he's actually a dog? A German Shepard to be exact. So, my wife, myself, and Brody went through four weeks of intensive Feisty Fido classes and now my two year old is (slightly) less feisty. My wife and I were also comforted to know that Brody truly is not the worst behaved dog in the City of Raleigh.

Many people, especially those with puppies like mine, often wonder if they will be on the hook for someone's medical bills, lost wages, and pain and suffering should their feisty Fido get a little too feisty with somebody's hand or leg or other appendage. The answer to those queries is very lawyerly: it depends. There are a wide variety of specific state and local laws that govern domestic animals such as dogs.

Generally, North Carolina as a whole follows the same rule of law for domestic animals that most other jurisdictions follow. That is, the owner of a domestic animal (dog) will be liable for injuries caused by that animal if the owner knew or should know of the animal's vicious propensities (i.e., it has bitten someone before and/or snarls at anybody who comes within a few feet of it). In addition, North Carolina provides by statute that the owner of a dog will be strictly liable (no fault needed) for injuries or property damage inflicted by a "dangerous dog." The term dangerous dog has a very specific meaning set out in the statute, which you can find here.

Most dogs bark and act "aggressive" because they are afraid and/or they're just overly excited. And certain breeds can certainly be more intimidating than others. For example, while I see a cute and cuddly puppy who wants to play, you may see a jumping, barking, and lunging German Shepard. The same type of dog that police use to catch and bite criminals. Owners of dogs can avoid potential legal issues by exercising reasonable care, common sense and courtesy, and taking the necessary steps to properly train their dog. This, we have discovered, takes quite a bit of patience and practice.

But, there are some dogs that are owned by people who are not as responsible as my wife and I. Their dogs do not resemble anything that Cesar Millan has trained. More likely, their dog resembles something Michael Vick has trained. This is very unfortunate for the animal and it's unfortunately a large problem in certain areas. If you have found yourself confronted and injured by a dog like this, then consider consulting with an experienced attorney to protect your legal rights.

Disclaimer: The author's views are his own. This blog post is not intended to convey specific legal advice upon anyone. The author's dog, Brody, has never attacked anyone. It is a track record the author is proud of. The author's dog loves to watch old Rin Tin Tin movies and loves police officers. Therefore, the author cannot guarantee that this trend will continue should you try to break into the author's humble abode. The author thinks Cesar Millan is a god-like person who deserves some type of Nobel award. Cesar Millan, the author believes, does not live in North Carolina, but the author used a company that is equally as good and recommends it to anybody. The author has attached pictures of his dog to show off said dog as he has no actual children. The author understands that displaying pictures to anybody who will look is the appropriate dorky parent thing to do.

Dude Feels like a Lady

I feel like Lady Gaga today. This statement quite obviously deserves further explanation. No, I did not wear an outfit like this to work today (you are quite welcome, co-workers). What I mean to say is that I can relate to her new single, Telephone, where she sings: “Stop callin’, Stop callin’, I don’t wanna think anymore!” It’s been a long week Faithful Readers and I for one am more than ready for the weekend. It occurs to me that some of you may be having one of those so-called weeks as well (I know for a fact some of you in my office are).

Did you know that forty percent of workers nationally report their job is very or extremely stressful? Twenty-six percent report that they often or very often feel burned out or stressed out by their work. There are many, many different causes of job stress and it not only has a physical toll on our health, it also has a toll on our national economic health. Stress in the workplace can lead to headaches, appetite disturbance, sleep disturbance, low productivity, low morale, job dissatisfaction, an upset stomach, a short temper, and many other issues. We lawyers seem to be particularly stressed out, and studies show that we have a higher rate of suicide and substance abuse because of it. The State Bar actually requires us to take continuing legal education classes in substance abuse and mental health issues because of these statistics.

Depressed yet? Well, I’m sure there’s some very expensive pill your health insurance (if you’re even lucky enough to have it) won’t pay for to help you with that. The point of this post, however, is not to moan or boohoo about my life, your life, your neighbor’s life or your coworker’s life. It’s intended to do for you what the painting of Homer Simpson in my office does for me each day: to serve as a reminder not to take life too seriously (a chronic problem for us lawyers).

Unless you want to become a statistic, you need to find ways of coping with that stress. At work, maybe you take a few more breaks and get a collection of nifty stress balls. Update your Facebook status and surf the web for a few (short) minutes. Maybe you go into your file room and sob quietly to yourself. Whatever works for you. Outside of your work find physical and mental activities that give you a release. I mountain bike and write. I’ve also recently started taking karate classes and highly recommend that as a great workout and great stress reliever. One caveat, however: if you should start taking karate, please restrain yourself from using your new Chuck Norris skills on your bosses and co-workers (this means you, mother).

The weather is finally warmer Readers. Daylight savings time starts Sunday and the first day of Spring is March 20. Get out of your offices and homes this weekend and enjoy it. Bad weather on the horizon? Who cares…when’s the last time you pulled a Gene Kelly? Have fun. See a movie (not Avatar). Go shopping, or do whatever else makes you feel good and take some of that stress off of yourself. It’s Friday, after all.

Readers' Choice

Dear Faithful Reader (a.k.a. "Mom"):

When the firm started blogging two weeks ago I thought it would be easy. I write as a hobby and for the first week or so I banged out blog entry after blog entry on my keyboard with ease. Now, not so much. You may notice that this post is being published very late in the day after business hours. That means I've been struck with a case of writers' block. That also means that I work too much (just joking, boss).

I'm also struggling a bit with which direction to take this blog. There are a lot of law-related blogs out there in cyberspace. Some comment on hot topic legal issues like gay marriage and tort reform. Some educate the reader about what to do in certain situations or what certain laws mean. Others tie into pop culture and discuss the real world legal ramifications that arise. Others push a certain group's political agenda. Etcetera, etcetera, etcetera.

A writer is nothing without their reader. If nobody reads what you write beside yourself, then what you're actually doing is just talking to yourself. And that probably makes you a little off. So, I'm opening up the blog to you, faithful reader(s).

Tell me what you want to read about. All comments and suggestions are gladly accepted, whether you're a daily reader, a frequent reader, or somebody who just accidentally clicked the wrong link in Google. As always, the post is free and the response is free. Go ahead, click that "comment" link. Please comply forthwith.

Respectfully,

Mike, Esq.

The Attorney Privilege

People who are not lawyers often ask me why I became a lawyer. They assume the answer is money; it's not. They assume the answer is that I'm stubborn and like to argue; that's partially true (just ask my wife). Then they become befuddled. Why on earth, then, would you want to become a lawyer? The answer is easy: people like you.

I have always wanted to help people. Although being a lawyer has always been an option in my mind since about the eighth grade (thank you, John Grisham), in high school I seriously considered being a police officer or a Marine. Those options were ruled out when I realized being shot at might not be the best thing going. Then I realized being a lawyer allows me to still protect and serve the public, I just don’t get to wear a snazzy uniform or a Batman-like utility belt to work (without odd looks from colleagues, that is). The law is one of those unique professions that gives me the ability to further my goal of helping people and at the same time make a difference in society overall.

Many people also point out that it must be frustrating dealing with "the system" all the time and doubt they could do the same. It can be. But, our legal system and constitution bring stability and structure to our society and I am proud to be a part of that. Despite its flaws, we can always work to correct them and its still one of the best systems out there. It's a privilege and a noble thing to be able to fight for another person's rights within that system, and to sometimes improve both that person's life and the system at the same time.

You may dislike attorneys. That's fine and you are in good company with a good portion of society. Lawyers sometimes don't even like lawyers. But, while you may not like lawyers, most of us became lawyers because we like people like you; and serving the public is not a privilege we take lightly.

Say What?

Let me share with you what annoys me about Starbucks. First, a medium coffee now costs $2.01. The extra penny is entirely unnecessary. The second thing that annoys me about Starbucks are the beverages that are everything but coffee. You know the drinks I am talking about: Venti skinny no whip caramel macchiato. Grande extra whip no syrup cinnamon dolce latte. Orange mango banana Vivanno smoothie with extra whip. Supercalifragilisticexpialidocious. I order coffee, not just because I love coffee, but also because even attempting to order these other concoctions makes my tongue knot, eyes cross, and brain hurt. I presume the language in which I am ordering the drink is English, but I have absolutely no idea what any of it means.

It occurs to me as I sit writing this in my favorite Starbucks that the same things that annoy me about the coffee company annoy you about lawyers. That is, we’re expensive and often don’t make any sense. It’s not our fault for the most part, however. In law school, we learn a language called “Legalese.” It’s a bastardized and pretentious version of English that the folks at Rosetta Stone haven’t developed a program for yet. The language ruins our ability to communicate with so-called normal people and angers our friends and family when we use it. Have you ever told your wife to “please comply forthwith?” I highly recommend that you don’t. If you do, I know of a personal injury firm you’ll likely need to call afterward.

You see, after three years of the linguistic odyssey known as law school, most lawyers can’t help themselves any longer. Good lawyers know that the key to client service and persuading a jury is to talk with said people as if they are actually people. To use English. But, all joking aside, we lawyers are people; imperfect people with hard to break language habits drilled into us by precedent and a profession steeped in tradition. This trial lawyer has seen lawyers in depositions act like American tourists in a non-English speaking country:

Lawyer: Please describe with particularity the events comprising the incident described in your Complaint.

Deponent: I don’t think I understand the question.

Lawyer: PLEASE…DESCRIBE…WITH…PAR-TIC-U-LAR-ITY…THE…EVENTS…COMPRISING…THE…IN-CI-DENT…DESCRIBED…IN…YOUR…COMPLAINT!

Rather than translating the Legalese (e.g., “Tell me what happened”), the lawyer thinks it will be beneficial and an understanding of the “language” will suddenly be achieved if they just talk louder and slower to the person. To treat the person as if they were deaf and dumb. Luckily, this happens fairly infrequently in my expereince, but it’s still annoying.

The key to a successful attorney-client relationship is communication. If you do not understand something, then you should let your lawyer know and keep asking questions until you get an answer you understand in plain English. If you are the lawyer, then please remember to speak plainly and clearly for the benefit of everyone involved.

Please comply forthwith.

Disclaimer: This blog post is not intended to convey any personalized legal advice upon anyone. The views of the author are his own. Parts of this post were intended to be humorous for the benefit of Monday morning. The author apologizes if the reader did not laugh and took everything seriously. Legalese is not a recognized language. The message contained herein regarding ensuring that you understand the legal advice given to you by your lawyer, however, is serious. For the record, the author loves Starbucks and thinks they have the best coffee around.

What's That Got to Do with Anything?

My clients often become annoyed (to say the least) when we reach the discovery phase of the litigation process and they are suddenly bombarded with questions concerning their criminal background, prior accident history, prior legal and insurance claims, and prior health history. At some point, usually very early on in the process, they roll their eyes and exasperatingly inquire, “What’s that got to do with anything?” Well, let me tell you.

Rest assured that most of your prior criminal mistakes, accidents, and claims have little to do with your current case and may not even make it into evidence at trial. In discovery, however, the legal standard in North Carolina is not that which is actually admissible, but rather that which may potentially lead to admissible evidence. Therefore, you must disclose most of the information requested even if a jury never gets to hear it. If you do not disclose it, then the likelihood of the jury hearing it increases exponentially because the defense will be conducting an investigation on you of their own, find it, and then confront you with it. At that point, they impeach your credibility for not fessing up and the jury will now probably not like you for failing to tell about it. In short, they’ll think you’re now a liar and that you tried to hide something (even if you innocently forgot).

The defense is interested in your prior criminal history because there may be something in your past that theoretically bears upon your “character for truthfulness.” In short, if you’ve been convicted of something like embezzlement in your past then the defense may be able to use that in the judge’s discretion to argue to the jury that you’re not necessarily the most truthful person and therefore they should not believe you. The defense is interested in your prior insurance and legal claims because they are interested in making you look litigious. Our current society tends to disfavor litigiousness. People are too quick to sue, says the prevailing public sentiment. Let’s ignore the fact that it’s your legal right to assert valid claims when necessary and that the tens of thousands of dollars you pay in insurance premiums over the course of your lifetime are suppose to go to paying for such claims. These are just a few of the reasons why you are asked these questions.

One of the essential elements of a negligence claim is the element of “causation.” You (we) must prove, by the greater weight of the evidence, that your neck, back, shoulder, knee or [insert other body part here] injury is related to the accident. This is where your prior accident and prior health history become relevant. For example, if you’re suffering from lower back pain after the collision and you’ve only been to the doctor once before in the past few years for the flu, then your case for causation is pretty strong because you have no similar symptoms in the past and it’s more likely that the accident caused your pain. If, however, you’ve had a multi-level spinal decompression and fusion surgery to your lumbar spine in the past few years, then your case for causation is probably not great. Regardless, it will ultimately be up to your doctor to educate and assist the jury in determining which of your symptoms are related and what treatment was necessary due to the accident.

Ultimately, if you’re concerned about how something from your past may affect your current case, speak with your attorney about it. Tell us up front and right off the bat. We’re here to help you in anyway we can and it’s best for us to be prepared if there is something potentially harmful in your past. As J.R. Solly said, “be frank and explicit with your lawyer…it is his business to confuse the issue afterwards.”

Coffee Talk

I have yet to pick a jury where I didn’t hear the phrase “McDonald’s coffee” at some point in the voir dire process. The case has become the poster child for the Tort Reform movement and virtually everyone in the country (and perhaps the world) has heard about it at some point in their life. But, was the verdict truly the most ridiculous verdict in the nation’s history? Were those twelve jurors really that stupid? Before you answer, consider the following facts about Liebeck v. McDonald’s that many people do not know:

1. Stella Liebeck, the “coffee lady,” placed the Styrofoam cup between her legs as her grandson stopped the car so that she could add cream and sugar to her coffee (have you noticed how McDonald’s does this for you now?). Many people believe she spilled the coffee as she was driving herself and while the car was in motion.

2. The coffee served by McDonald’s was so hot it caused instant third degree burns to over six percent of her body. This six percent included her inner thighs, her buttocks, her genitals, and her groin. She was hospitalized for eight days as a result of her injuries.

3. Liebeck offered to settle her case with McDonald’s for $20,000.00 well before the jury returned with the now infamous $2.86 million verdict.

4. More than 700 people had been burned by McDonald’s coffee in a ten year period prior to Liebeck’s incident. Some of these people suffered substantially similar burns as Liebeck.

5. Coffee brewed at home is typically served between 135 and 140 degrees. McDonald’s coffee was served between 180 and 190 degrees. A burn hazard exists whenever a food substance is served over 140 degrees.

6. McDonald’s knew about the burn hazard, but the company’s quality assurance manager testified the company had no intention of reducing the temperature of its coffee.

7. McDonald’s argued that it kept its coffee so hot because the customers would consume it at home and work and wanted it to still be hot when they arrived there. However, the company’s own research showed that most customers would begin to consume the coffee immediately.

8. The verdict handed down by the jury was originally $200,000 in compensatory damages and $2.7 million in punitive damages. The $200,000 was reduced to $160,000 because the jury found Liebeck twenty percent at fault in the spill (of note, in North Carolina which has the doctrine of contributory negligence, this finding of fault on the part of Liebeck would have resulted in no recovery for Liebeck at all). McDonald’s made $2.7 million in coffee sales alone over a two day period at the time.

9. The trial judge reduced the $2.7 million award to $480,000, three times the compensatory award of $160,000. North Carolina has a similar law.

10. The jury that handed down the $2.86 million verdict was selected by both the Plaintiff, Stella Liebeck, and the Defendant, McDonald’s.

I’m not going to defend the coffee verdict and if you disagree with that jury that’s your right. All I’m saying is that you can probably find more “ridiculous” verdicts in American jurisprudence when you look at all the facts. It is easy for us (this trial lawyer included) to look at a jury verdict and wonder what those twelve allegedly reasonable people could have been thinking. But, the cornerstone of our judicial system is the jury. If we lose faith in our juries, then the system cannot work.

Sources: Lectric Law Library ; Economic Expert

Trivial Pursuits

Ask most people what I do for a living and they’ll say that I chase ambulances. That is false. North Carolina has a law prohibiting such conduct; and I, for one, am far too out of shape to ever hope to run and catch one. The truth of the matter, however, is that I do sue people for a living. In every jury trial I’ve done so far in my career I’ve found that the prevailing sentiment among the general public is that there are just too many lawsuits. Frivolous lawsuits. People are suing other people over trivial matters at the behest of some greedy ambulance chaser. So, why do so many people file lawsuits each year?

The answer is fairly simple from my perspective. In the personal injury context, it is often due to the behavior of the insurance companies. The overwhelming majority of my clients come into my office and say the exact same thing: “I’m not one for suing people. I’m not litigious.” Well, with all due respect to them, this is obviously not true because they're in my office and litigation is my business. But in reality, even though I am allegedly a fairly nice guy and easy to talk to, all of them would rather not have to spend an afternoon with me. The client ends up in my office for the simple reason that the insurance company involved in the case often refuses to pay for the medical bills, lost wages and other damages the client suffered through no fault of their own.

Since the 1990s, the country’s largest insurance carriers have adopted a “get tough” approach to personal injury claims. This approach focuses not on the individual consumer, but rather the profits the industry brings in every year. As a result, the company’s own policyholders (you) end up getting dragged into court by people like me for claims that in all likelihood would settled if the companies would do the responsible thing and pay the often reasonable amounts the clients lose due to the company’s insured’s negligence.

The strategy works for the insurance industry. Fighting legitimate claims with their vast financial resources discourages worthy plaintiffs from going to court. Some companies, such as Allstate, routinely make line-in-the-sand offers that are far less than the actual medical bills the client incurred in the collision with their insured. By low-balling the client, the company actually forces the case into the court system. According to one former Allstate employee, the company puts claimants in good hands by making it “so expensive and time consuming that the lawyers would start refusing to help clients.”

Not this lawyer. I routinely fight Allstate and other major insurance companies in court on behalf of my clients and will continue to do so in the future. If a person is in a collision and the greater weight of the evidence shows that they were injured in that collision, this ambulance chaser believes that they should be able to recover for what they have lost through the fault of someone else. Is that really that frivolous?


Sources: CNN and the author’s own experience in litigating personal injury claims.
Disclaimer: The views of the author are his own. It is your right to disagree with them.