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Archive for February, 2012

A Quick Trial Story

Wednesday, February 29th, 2012

I am using a bit of “Ingenuity” for the blog posting. This time I had to email it to post it. I decided that you didn’t want to hear an excuse like  it was too windy or the blog got rained out.

Normally I steer clear of mentioning verdicts. It’s that ethic “stuff” where you have to make sure that there’s clear indication “that all cases are different”. Actually, the disclaimer is even a bit longer; including that every case is different and previous results are no guarantee for the future.  Plus, I really don’t want insurance companies and defense lawyers to read our “trial thinking”.

For this blog, I am breaking my self-imposed verdict discussion  because it’s a “feel good” story about our client, and I can’t personally take any credit for the result.

This week, Rick Zahn had a one-day jury trial in Richmond Circuit Court. There were no independent witnesses. It was simply a case of our client saying that she had the green light; and the defendant claiming that she had the green light. That fact pattern usually makes it difficult to even take the case.

The client had gotten emergency room treatment and some visits for physical therapy. The insurance company had made no offer. They based their no offer on their insured saying that she was not at fault.

Our client had told the police officer at the scene that the other driver had been talking on the cell phone at the time of the crash. In fact, the evidence did show that, and the defendant did admit that.

Rick had said to me, the day before trial, that he really liked our client. He also really believed her and thought she would be a believable witness; and believed that the other driver was at fault.

You know where this is going. Otherwise, it would not have made it to the blog. Yes, the jury heard the evidence; retired to the jury room; and returned in 20 minutes with a verdict of $50,000. One juror even told Rick after the trial that everyone knows how distracting that cell phones can be.

Our client felt a tremendous burden lifted because the jury believed her. She had waited almost two years to get her bills paid and reimbursed for the damage to her car. The jury made the defendant accept responsibility! I told Rick, like I used to tell my grandmother when she would read a story to me… “Tell it again”.

And for pic o’ day, Is Silly String really that bad?

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Legal Cartoons on a Blog?

Tuesday, February 28th, 2012

I know that blogs are supposed to be a collection of the written thought, but I thought that we’d just have a few legal cartoons today. I know, maybe it just doesn’t make sense.

Anyway, that’s how it works. The cartoons will speak for themselves.

How about a little accident defense attorney humor:

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Nip and Tuck Guinness Record

Monday, February 27th, 2012

Several years ago, I drove by Ferguson Supply and saw one of their employees outside, mowing the grass in a business suit. I stopped my car because I wanted to know what was going on. “Hicks” always had a great quote or story.

“Hey Hicks”, I hollered. He stopped the lawn mower and came walking toward me. “Why are you mowing the grass in a suit.” He looked at me with a smile and said, “Ain’t no sense in looking bad and feeling bad too!”

Everyone wants to look and feel younger. Everyone but kids under 5, who always seem to answer a ”How old are you?” question with “4 and a half” or “3 and a half.” You never hear anyone say “62 and a half.”

London now can claim a record-holder in plastic surgeries.  Cindy Jackson just turned 57 and can now “boast” that she is in the Guinness Book of World Records with 52 cosmetic procedures. Here are her before and after pictures as she progressed:

She had her first procedure at age 25. Looking at these pictures makes me wonder why she didn’t own a camera back then with a little better focus. Cameras haven’t changed that much have they?

Jackson says that she spends “on average, two weeks each year having surgery and recovering from it. I have to if I’m going to continue to hold back time.”

Her motivation for the surgeries have nothing to do with trying to get in a record book. “I never intended to break any records,” she said. “I just want to be young and beautiful. I never want to look into the mirror and see a wrinkly old face staring back… and I don’t think I will ever have to.”

When I read this article, it made me want to send a copy to the insurance adjusters on our cases. Years ago, I learned that Allstate had began to use a computer software program to evaluate claims. Adjusters would never say that “Colossus” indicates how much to offer. All of a sudden, offers were seemingly a bit lower and many times ended in an unusual number, like $5808.

Cases where clients had been burned or cut seemed to also receive low offers. It didn’t seem to matter whether a client was permanently disfigured. Then, information began to leak out that the software program did not consider anything about scarring or disfigurement. It had never been programmed as a ‘settlement driver’.

When considering the damages of loss of enjoyment of life or mental anguish, appearance is certainly part of that. This article might be a bit “over the top”, but it  is  a reminder about the significance of the damage of disfigurement. An even worse damage, when it results from someone who caused it by a bad choice or careless action.

And pic o’ day is a reminder of how we can keep working on the appearance, without going under the knife:

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Here Comes Qnexa

Sunday, February 26th, 2012

     One of my favorite commercials from the Super Bowl was the car commercial… What, you don’t remember a car commercial? Well, I’ll bet you’ll remember it when I describe it.

     A fat dog keeps seeing a car drive by that he wants to run outside and chase. The first time he tries, he can’t get through the opening in the door. So, he sits and looks at himself in the mirror to figure out what to do. He is sad. The violin music is playing.

                                                                                                                                                                          

     Off of a sudden, the voice of James Brown kicks in with, “Get Up Offa That Thing”. Heavy dog decides to go on a massive workout program to lose weight. He throws his ball down the steps, so he has to chase it. He runs on the treadmill. He ignores the food being dropped on the floor: He even goes out to the pool to swim.

   In thirty seconds, you feel a part of the accomplishment. Yes, he is through the door doggy hole and out chasing the VW Beetle. All because he decided to exercise and do it. He takes no shortcuts to weight loss.

  The New York Times did a story on the making of the ad, because so many people picked it as their favorite Super Bowl ad. YouTube even has “The Making of:The Dog Strikes Back” commercial.

     They decided to create a metaphor of “letting ourselves go” by showing Fat Dog. Originally, the director of the commercial was looking for two dogs. But, they decided that “Bolt”; the dog in the commercial, was such a good actor that they would just use special effects to accomplish the weight loss.

     Bolt wore a “fat suit” built out of fake fur. As the reporter of the Times put it, “No animals were harmed in the making of this fat suit”.

     We all can feel a bit challenged by this ad because it ends in accomplishment. Unfortunately, drug companies know that people aren’t inclined to exercise and would rather just take a pill to lose weight. They have been focusing on finding “that pill” and getting it approved for marketing.

      It’s why the diet drug, fen-phen, was so widely prescribed. Then, when it was shown to cause pulmonary hypertension and heart valve problems, the drug was taken off the market; and it led to damage lawsuit payouts of about $13 Billion dollars.

     Other drugs have failed to get approval. Even Qnexa was rejected in 2010. But, maybe enough time has gone by where the effects and dangers of fen-phen are fading from our minds.       

     Last week’s big pharmaceutical news is the potential arrival of  Qnexa to market. Vivus is the Mountain-View based drug company to create it. When the FDA gave tentative approval last week by a 20-2 vote, Vivus stock (VVUS) jumped 98 percent on its first day of trading.  At close on Friday, it is now trading at $22.13 and moved to $22.45 in after hours trading.

     I will briefly describe ingredients and warnings. No need for exercise with what they are touting.   

     In terms of weight loss, Qnexa’s study participants loss an average of 10 percent of their body weight. One analyst predicts that such results will make this drug “the next Lipitor” with millions of prescriptions being written.

     If you analyze the drug, you’ll find that it’s really a cocktail creation. It’s a combination of two previously approved FDA drugs. The first is phentermine, which is really an appetite suppressant. It was the “phen” of fen-phen.     The second part of Qnexa is topiramate, which is an anti-convulsant.  

     Phentermine is already known to have two heart-related side effects: tachycardia, which is an increased heart rate, plus it has been shown to elevate of blood pressure. It has been around for over 40 years.

     Topiramate is the active ingredient in Topamax. It’s side effects include confusion, memory loss, concentration problems and “difficulty in finding the right words” in conversation.

     It appears that the FDA is going to allow this to go to market, because of the positive effect in the war on obesity. The FDA  probably will require additional studies for those that are already at risk from the above two ingredients.

      Warnings probably will include cardiovascular issues. Plus, Topiramate already carries the warnings of depression, mood problems, fatigue and sleeplessness. Plus, there’s that side effect termed as “suicidal ideation”.

     The FDA will make a final determination on approval and required warnings on April 17. Vivus is asking the FDA to allow it to begin a 4-year-trial on cardiac health AFTER the FDA approves it. People will be excited with the weight loss and push to be on the drug longer. Then, history tells us that the drug company will push for a stronger version, for those that really need to lose weight.

     I suspect that you will be seeing more blogs from me on this drug, if it is approved. It would not surprise me, if this law firm becomes very familiar with this drug and drug company.

     For pic o’ day, I thought I’d post something that I think, describes this blog.

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A Blog Going Nowhere

Thursday, February 23rd, 2012

The weather has turned warm and I’m having a little bit 0f  ”non-blogging” lack of motivation. The Social Media team at the Firm is trying to cheer me on for more blogs.

Well, maybe that’s a bit of an exaggeration as a picture of the “cheering Social Media team”. (I hope your computer can see them clapping. I can’t stop watching them). I do think that there’s a voice outside my office that keeps repeating the mantra, “must blog… must blog”.

The other day, I noted in one blog that I had to look up when to use “lie” and “lay”. Usually, I just type and let it fly. See, that creates a good excuse for me, the next time you see me wander off topic.

When I was checking on the proper use of those terms, I stumbled on these “Pet Peeves” in writing. I am posting them, but I don’t think that I feel that strongly about them, to qualify in the Peeves. We can call them list o’ Peeves.

1. It’s “I couldn’t care less.”  ”I could care less” means that you actually do care

2. An Apostrophe is never used to form a plural

3. “Literally” means it actually happened, not that it figuratively happened.

4. “Loose” and “lose” are two different words.

5. “Your” and “You’re” are also two different words

6.”Their”, “there” and “they’re” are actually three different words.

7. “Nonplus” does not mean what you think it means.

8. “Affect” is a verb. “Effect” is a verb.

9. “It’s” is short for “it is” and “its” means “Belonging to it”.

10. “Irregardless” is not a word.

And for pic o’ day, I thought I’d post these two guys. It reminded me of how I ran out of steam on this blog. Do you think they know that they are lacking the power? That’s going nowhere fast.

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A Cat Wrangler

Wednesday, February 22nd, 2012

     I’ve been on a “word roll” for blogging. Can’t help it. The last few blogs just got me going. I’d look down at the word count and realize that I needed to ease up. Just getting too long.   For this blog, I’m just keeping it short.

     Just had to throw that in. Anyway, this Time.com story got my attention. You can now hire a bounty hunter for your cat. Thought it was worthy of a blog mention, since I haven’t had one on contract or employment law in a while.

     For a fee of $80, this lady will coax your cat to a vet appointment or even a trip to the groomer. For $80, it might be worth it just to watch. She claims she always wins. She left the practice of law to do it.

     For pic 0′ day, I thought I’d reach into the vault for “Gone with the Wind…. Gone to the dog and cat”.

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FDR Court Packing

Tuesday, February 21st, 2012

                                                    In the early 90′s, I had 3 or 4 jury trials against defendant Yellow Cab company. The Taxi drivers would run into my client’s car and then Yellow Cab would offer little to settle the case.

Every time, the defense attorney would be Tom Moss; who was also Speaker of the House, for the Virginia General Assembly. After the 2nd  jury verdict, Tom introduced a bill that next session, that became law.

     It classified Taxi drivers as independent contractors; and limited Yellow Cab’s exposure and required insurance coverage to a maximum of $25,000. The next time I saw him, he just smiled and said something like, “Well, you won’t be getting Yellow Cab for any big verdicts”.    The rules had changed! 

      In 1932, Franklin Delano Roosevelt was first elected as President by a landslide vote . He promised a New Deal of social and economic policies, to get America back to work. Once he got the law enacted, the US Supreme Court, by a 5-4 vote, held that the New Deal was unconstitutional and struck it down.

     The Court then ruled against the Railroad Retirement Act; and then the National Industrial Act. This infuriated Roosevelt.  He decided to “change the rules”. He came up with a name for the Court to express his contempt. He described the Court as the “Nine Old Men”.

     When Roosevelt was re-elected by an even bigger voting margin in 1936, He thought he had a solution; A plan to change the Supreme Court.  In 1937,  he announced the Judicial Procedures Reform Bill.  His idea… to appoint 6 more Justices and increase the Court to 15 members. It was branded as his attempt to “Pack the Court”.

     Roosevelt’s enemies were against it;  But, it was his friends who felt that it was “the gravest constitutional crisis since the Civil War”. (Roosevelt biographer Kenneth S. Davis) History records that his inability to garner support for this measure ultimately robbed him of political capital, that could have been focused on passage of  his economic policies.

     The final measure  failure as documented by his biographers was a legacy that this idea of increasing the Court would never be “presented to the free representatives of the free people of America”. The footnote to all this is that the pendulum swung. The Court’s philosophy was in step with FDR.

     The youngest justice, Owen J. Roberts, began to vote in the FDR leaning “column”, with the Court’s decisions coming down  5-4,  in favor of FDR’s policies as law. Also, the “Old Nine Men”  began to change as Justices retired and FDR made Court appointments. The nine Justices now became a “Roosevelt Court”.

     For pic o’ day, I thought I’d go with the “Law of Grabbity”:

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Supreme Court Justice Security

Monday, February 20th, 2012

     John Grisham’s novel “The Pelican Brief” begins with the assassination of two Supreme Court Justices. Thereafter, law student Darby Shaw begins a research project that leads her in harms way, because she connected the dots of why the Justices were killed. 

     Most people reading that Grisham book probably thought that it was good fiction. Nothing like that could ever really happen, could it?   

     Ten days ago, Supreme Court Justice, Stephen Breyer, was robbed (story here) in his Caribbean vacation home when a machete waving intruder walked right in to his residence. The robber escaped and the crime is still unsolved.

     In a survey about the Supreme Court, only one-third of those questioned were able to even name one sitting Supreme Court Justice.  Unlike the Legislative and Executive branches of our Federal Government,  Justices basically are able to come and go without being recognized.

      It was considered very unusual, when Sesame Street recently treated pre-schoolers to an appearance by Justice Sonya Sotomayor. She was asked to hear the case and rule on whether Goldilocks should be required to pay for the repairs to Baby Bear’s chair; as a result of breaking it when she made an unauthorized entry into the Bears’ home and sat down and broke the chair.

     That TV appearance was unusual because Justices normally are not seen on TV. They have also, to date, continued to prohibit cameras in the Courtroom to record the Justices’ deliberations during their term of Court. That probably is based on an intent not to be so public or easily recognized.

     In 2011, when Justice Ruth Bader Ginsburg had to slide down an airplane emergency slide, as part of a flight evacuation of 179 passengers; no one really even questioned that a Supreme Court Justice would just be flying on a crowded commercial flight.

     A contrast to her flying commercial is the security of President Obama, who needed Secret Service to clear air space, so he could recently snorkel while on vacation in Hawaii. In addition, secret service agents were in wetsuits as he floated by.

     Retired Justice John Paul Stevens enjoys recounting the time he was stopped by tourists outside the Court as he “was going to work”. They wanted to know if he would mind moving out of the way so they could take a good picture of the Court building. None of them recognized him.   

     Justices have worked to preserve their freedom of movement over the years. This, despite the fact of their importance. Justice Anthony M. Kennedy is typically viewed as the swing vote in many 5-4 decisions. As such, he may be the Justice to determine the fate of President Obama’s health care law, when it comes before the Court. That decision may have major financial impact to many parties.

     Low profiles for the Justices does probably add to their security. Maybe familiarity does breed contempt for those that are mentally unstable and think that a “Pelican Brief” event should not just be fiction. 

     Justice Breyer’s vacation home robbery appears to just be a random event. In 1985, Justice Harry A. Blackmum’s living room window was shattered by a bullet. That too was ruled as just a random bullet.

     US Marshals are tasked with the protection of the Justices. For now, they all have chosen to not be surrounded with a bunch of guns or even swimming on vacation with a crowd of protection in wetsuits. For now, our third branch of government continues to work in chosen obscurity.

     For pic o’, we travel back to an old school photo: 

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Link of Organ Donation

Sunday, February 19th, 2012

    February 19, 2008, I was behind a curtain at the hospital; lying (always get that “laying” and “lying” confused) under a cover, with no one in sight. I was all prepped and ready to go for a kidney transplant. My wife, was my donor. A while earlier, they had brought her by just before taking her off to surgery. Now, I was just waiting. 

     All of a sudden, the curtain moved and the nurse came in quickly with a “let’s go, I have to get you down there”. I have never moved that fast in the hospital. Well, I really had nothing to do with it since I was just along for the ride. Apparently, once the doctor says that they are ready; they are ready to transplant. One of those times that they can’t start without you.

     I remember a lot of details of that morning. Well, I remember, until that moment when the doctor put the mask on me and said, “start counting backwards”. Not so much detail from that point.

     Now, I celebrate 4 years of good health because of that day. Coincidentally, I just read the NY Times story  of 60 lives and 30 kidneys that was all coordinated through the non-profit National Kidney Registry.   

     Waiting for the kidney of a deceased donor can take at least five years, and those needing a transplant have difficulty waiting. This NY Times story is about one donor who started a chain of living donation. He wanted to help a friend who was in kidney failure, but he wasn’t a match. But, by being willing to donate to a stranger through the registry, he was able to ultimately facilitate a donor for his friend.

     The link joined 30 people who were willing to donate, to create matches for another 30 in need of a kidney transplant. The momentum of one donor ended up coordinating 17 hospitals in 11 states. For some needing a kidney, it was like finding a “kidney in a haystack”. But, with this chain of selflessness, it was possible. This 6 page article is filled with the moving stories of the impact of transplant and how these 60 people are now all connected. I think you’ll enjoy it if you click to it. It has pictures of the sixty person chain.

     Donors and recipients become members of an unofficial club. Sure, we might tell each other jokes like, “did you hear the one about the man who got a kidney transplant from a dog….. he can’t stop himself from chasing the mailman”. Well, maybe we really don’t sit around telling jokes, but there is a tremendous connection. What a gift that I have been given and I am so thankful. 

     On our firm homepage, you can click for instructions to become a donor and register it on your driver’s license. You really can make a difference.  

 I thought that for pic o’ it would be appropriate to just put a bunch of smiles for celebration:

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More Quick Legal Hitters

Thursday, February 16th, 2012

I thought I’d throw up some legal stories of the week. Maybe you’ll react a bit. If your computer is able to see it, you’ll see that Michael reacts with a laugh. Some are just head-shakers!

Our first news-legal story comes from Ocala, Florida. A self-described homeless man was arrested for trying to pass counterfeit $20 bills. Apparently they were poorly copied. He claimed that he just simply used a copier/printer. Do you find it strange that he got caught at the Dollar General Store.

Next Story. Adjustable Ottoman Beds have been recalled. The notice states that when the ottoman is converted to a bed, and any weight is put on it; it can collapse. No, I don’t think that’s funny and neither does Michael. Although, when I read the article, the advertising does focus on a picture of two smiling people in bed with the big question, “Click here for the best night’s sleep you ever had”.

That advertisement did strike as a bit odd.  I guess you just shouldn’t try “clicking there” while converting that ottoman to a bed. Is it hard to “return” a bed? Big Box?

Next, In 2011, lawyers sought to set aside a guilty verdict in a New York tax fraud case. Now the NY Law Journal reports that the Federal Judge has ordered the arrest of the former juror relating to that motion.

Suspended lawyer Catherine M. Conrad was questioned about her criminal history during  jury selection voir dire. Conrad had been suspended for charges stemming from alcoholism issues, before ending up on the jury. Apparently she did not tell that during questioning. She also failed to respond in admitting that her husband was a convicted felon.

No, you’re right, that’s not funny. It’s more in the “that is odd” because she really must have wanted to serve on that jury.

One final note, two people from Newport News will have their case heard on the Friday show of Judge Judy. So, if you are near the TV during the time that your market shows Judge Judy, you can see a case about a lady who sold a man’s 4 tires.

Apparently, he was kicked out as a renter and left the tires behind. She finally got tired of the tires just sitting in the backyard and she sold them. Now, he wants his tire money.   They are going to get some Judge Judy justice! That should be worth some kind of reaction… shouldn’t it?

For pic o’, did you ever wonder what minions look like?

See, I think that’s funny. But, the blog needs to be a buffet for the weekend…. a little something for everyone if you don’t like that crowd.

So, how about a cat skiing?

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