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Happy Halloween

Thursday, October 30th, 2014

I am in Wrightsville Beach, North Carolina, where my nieces and nephews are getting excited about the treats…not the tricks.  So, I thought that the pic ‘s should be part of the theme.

Have a great weekend!

Halloween-Funny-Dog-2 boxer-dogs-in-costumes

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Authority is the Authority

Wednesday, October 29th, 2014

You know the old saying that everyone has a boss… even when they are the boss. I have had a judge tell me that a trial was going to be scheduled during my vacation, and that his courtroom was not dictated by my schedule. Sure enough… he was not controlled by my schedule.

This week, the National Basketball Association kicked off its season. They have 3 referees at the game calling fouls and enforcing the rules. The refs are paid significantly less than the players but they are still the authority.

The rules of evidence, just like rules in a sports contest, are ultimately the rules that govern the play. There is always authority and consequences for not obeying authority, just as there are prison inmates who would ruefully tell us that they broke the rules.

I started the blog with all of that to lead to this video below. I know that you might have a device that will make it difficult to click and watch. In brief description, it shows a boxer who was not happy with a referee counting him out and stopping the fight. Then, he punched “the authority”. I am sure there will be consequences to pay!

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Settlement Negotiation Statements

Tuesday, October 28th, 2014

At the beginning of every mediation in our office, the mediator will pass an agreement around for everyone in attendance to sign. The agreement includes language that says that all statements made during the mediation cannot be used as evidence in the trial of the matter.

That doesn’t mean that everyone expects the mediation to fail. It only means that everyone can be open about their perceived strengths and weaknesses of the case. It’s also why statements made during settlement negotiations involving amounts are not admissible at trial. Without such limitations, settlement discussions would be discouraged and settlements would occur  less frequently. Conversely, it’s why  I cannot get up and announce to the jury that the defendant has only offered $12,000 to settle the case.

This serves as a backdrop to the ultimate downfall of Chicago gangster Al Capone. (wiki)  His own admissions in negotiation served as the evidence to convict him.


Everyone knew that Capone was both violent and a bootlegger. However, he seemed above punishment because he knew where to pay money and he was also known as a modern day Robin Hood with his donations. All that changed after the Saint Valentine’s Day Massacre of 1929.

Gang members were lined up against a wall and shot. Everyone believed that Capone had a hand in it and there was a public outcry. Prosecutors were unable to charge Capone with any of the killings but they did ultimately charge him with tax evasion.

Despite living a life of financial excess that included regularly staying in luxury hotels with his entire entourage for weeks at a time, or buying a 14-room retreat in Florida; Capone did not have a checking account and always used Western Union for cash deliveries for amounts less than $1,000. As a result, prosecutors were having a difficulty in pursuing their case against him.

Capone decided to negotiate a deal with prosecutors, rather than constantly dodging and weaving income evidence. In negotiations, he admitted his income in an attempt to arrive at a final tax payment resolution. When settlement negotiations broke down… the judge let his settlement admissions into evidence.

Capone was ultimately convicted of tax evasion and sentenced to 11 years in prison. He appealed the evidence but lost on appeal, despite his proper claim that the evidence of settlement negotiations should never have been put before the jury. He knew that his reputation kept him from having his conviction properly overturned.

Not surprising, the Judge and prosecutors were later rewarded in their careers by putting Capone in prison. One of those “the end justified the means”.

Capone never recovered from spending time in prison. He lost his position as a crime boss and ultimately died at the age of 48, while also having suffered from dementia in the latter days of his life.

And for our pic o’ day…

Dog no cat


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The Cause and Effects

Sunday, October 26th, 2014

 “Drop a pebble in the water: just a splash, and it is gone; But there’s half-a-hundred ripples Circling on and on and on, Spreading, spreading from the center, flowing on out to the sea. And there is no way of telling where the end is going to be.” (James W. Foley)

Part of my job as a lawyer is to establish all the injury and damages from a crash. A while back I met with a doctor regarding his care for one of my clients. In the meeting, he told me that he did not like to tell his patients that they had a permanent injury. He felt that it would become self-limiting if they thought that they would never get better.

Sometimes in a jury trial, I will tell the jury about the injuries and medical bills in the case. Then I proceed to the elements of damage of my client that include pain and suffering and mental anguish. Sometimes that would make the jury roll their eyes just to hear the words pain and suffering. I think that they rolled their eyes because I didn’t do a very good job in conveying all that my client had suffered.

In one seminar that I attended, I heard a lawyer quantify pain and suffering. He reminded me that we gladly pay between $25-$75 for a shot of novacaine at the dentist’s office, just to be without pain for an hour. So, how much was pain and suffering worth for someone that was going to have it for the rest of their life.

Now, let me switch lanes here to discuss what would happen, if we could change our mental anguish. More specifically, studies have been done to reverse aging effects, just by changing environment, thinking and mindset. It kind of reminded me of that doctor who did not want his patients to think about their chronic pain and permanent injury.

The New York Times had a story in its Health section titled “What if Age Is Nothing but a Mind-Set?   I won’t be able to do justice to the study with a blog summary. Basically, it discusses the studies of a psychologist named Ellen Langer who believes that she has proven that we are what we think we are. She applied it to age.


Basically, she proved that we are as old as we think we are. In one study, she demonstrated in a study involving elderly at a nursing home, that memory can improve when incentives are given to remember. In another study, she brought 8 men in a controlled area and saw effects of the study that reversed the aging.

It’s admittedly a long article. For that reason, on a Monday you might not have time to read it. However, just as the effects of mental anguish may be overlooked; so may the effects of positive reinforcement. We are who we think we are!


And for pic o’ day…



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No Sandwich Competition

Thursday, October 23rd, 2014

I try to eat healthy at lunch. However, without fail, I am always greatly tempted by the sandwiches on the menu. Thinking about it right now even makes me hungry. That said, I am not a big fan of the sandwich shop Jimmy John’s. Just not a big fan of their sandwiches.

Now, I have learned that Jimmy John’s makes their new employees sign a non-compete agreement when they are hired. The agreement provides in part:

Employee covenants and agrees that, during his or her employment with the Employer and for a period of two (2) years after … he or she will not have any direct or indirect interest in or perform services for … any business which derives more than ten percent (10%) of its revenue from selling submarine, hero-type, deli-style, pita and/or wrapped or rolled sandwiches and which is located with three (3) miles of either [the Jimmy John's location in question] or any such other Jimmy John’s Sandwich Shop.

This is what a new employee signs as part of a bunch of paperwork when hired. For instance, this is restricting a sandwich maker or a delivery driver from jumping to a competitor for a period of two years. In the agreement, competitors are defined as any business that is near a Jimmy John’s location that receives at least 10% of the restaurant business from the sale of sandwiches.

Now, let’s really narrow it down to what it means. Jimmy John’s advertises that it has more than 6000 restaurants throughout the United States. Those locations are in 44 states. So, if a sandwich maker or a delivery driver happened to move to another state and tried to go to work at a restaurant that had that 10% sandwich ratio… boom, they would be in violation of their non-compete.

To be fair, I can understand how some employees who have served in management would have learned trade secrets. The non-compete would have some legitimate purpose. In legal terms, a legitimate business reason. However, such a broad restriction on all employees can surely have impact on someone’s ability to earn a living.

In the past, Jimmy John’s has been sued for “systematic wage theft” under a claim that employees were required to work off the clock. In addition, a class action suit was filed against them because they were regularly failing to put sprouts on sandwiches. Yep… sprouts!

Now, some workers are beginning to file suits relating to the non-compete, with a claim that it is oppressive. So, it appears that Jimmy John’s is fighting about wages, sprouts and competition. The business of making sandwiches sure seems to be pretty complex outside of the bread.

And for pic o’ day:


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Trusting the Doctor

Wednesday, October 22nd, 2014

Dr. Custer was trying to tell us what might be important for an upcoming Bible test. Since we were a class of a bunch of ninth-graders, I am not sure that I can even imagine the expressions on our faces. Then he told us to remember what “walking circumspectly” was describing.

There are many things that I do not remember from school. I still remember the lesson on “walking circumspectly ”. Dr. Custer told us it was “walking with eyes in the back of your head”. Then, he physically demonstrated as though he was walking with eyes in the back of his head. Like the old saying, “be alert… we need more lerts!”.

That memory came to mind when I saw a Washington Post story about a trial that was scheduled to start on Wednesday morning in Alexandria, Virginia. It also was a reminder that just because a person has Dr. in front of their name does not mean that they are not susceptible to greed and fraud.

Dr. Amir Bajoghli, owner of Skin & Laser Surgery Center, has been charged with 60 counts of fraud that involved his patients who were seen and treated between the years of 2009-2012. According to his indictment, he also billed insurance companies for surgeries that he did not perform. In addition, it is alleged that he had unlicensed and unqualified medical assistants to close wounds and perform skin grafts while unsupervised.

In fact, Dr. Bajoghli had been named as one of the regions “Best of”, when considering top dermatologists in the area.  He also had multiple offices throughout Virginia and the surrounding D.C. area.

The prosecutors intend to prove that this doctor performed unnecessary surgeries and also was intentionally misdiagnosing his patients with skin cancer. Not only profiting in his billing by intentionally providing insurance codes that allowed him higher reimbursement, but also scaring his patients by  telling them they falsely needed treatment for their skin cancer . Mostly, he was telling elderly people that “you have skin cancer and I have to operate (cut it off or out)”.

Pair that alleged fraud with the charge that he improperly billed and received $31,000 for procedures that were done improperly by a nurse practitioner or assistant.

Because I regularly see a dermatologist, I think that this kind of charge and trial hits close to home. Isn’t it true that we want to trust our doctors and in fact need to trust them? Hence, the reminder of the need of ”walking circumspectly”.

We basically have to have eyes in the back of our head today. It’s also why I don’t get excited about “Best of” lists. Instead, there is nothing like a personal referral. I gladly tell anyone to go see my dermatologist. It also reminds me of those Hotel commercials with “Captain Obvious”, who says that you should read the reviews of someone who has actually stayed in the room instead of a review from someone who was paid to write it . That really does seem obvious.

DID YOU KNOW that the Internet was originally called the ARPANet? (Advanced Research Projects Agency Network designed by the U.S. Department of Defense)

And for our pic o’ day, here’s a nod toward decisions for Halloween costumes:


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Some Firm News

Tuesday, October 21st, 2014

     I am sitting in a make-shift office right now because construction is being done on my personal office (Richmond). Nearby, work is being done on our computers, because we have also added additional upstairs space. Several attorneys and staff are now on the second floor. It is as they say, “a lot of moving parts”.

     It just seemed appropriate to post the following for pic o’ day: 


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A Different Legal Standard

Monday, October 20th, 2014

On Monday, IBM stock shares fell $13.06 per share after posting weak earnings results. Because Warren Buffett’s Berkshire Hathaway owned 70.2 million shares, that meant a paper loss of almost a billion dollars. All that before even making it to lunch.

That is definitely the world of the 1%. Where such a loss would evoke the kind of response that he probably uttered, “it’s not a loss until you sell”. Of course, there’s also the saying, “bulls and bears make money while greedy pigs get slaughtered”.  All of it stands for the premise of different standards. He is on the rich side of the tracks.

I was also reminded of that when I read that Facebook is now suing four law firms. The lawsuit stems from the four law firms having represented claimant Paul Ceglia in 2010.

Ceglia had founded previous internet companies and was now claiming an ownership of 84% of Facebook. According to Ceglia, (Wiki) he and Mark Zuckerberg had made an agreement relating to the formation of the website that gave him gradual ownership of the company. He even presented evidence of such an agreement.

Later, it was determined that Ceglia had fabricated the information. That was only the beginning of his legal troubles which also included being arrested for possession of Psilocybin. Basically, “he was doing mushrooms”.

Now, Zuckerberg has filed suit against those four law firms who brought the original lawsuit on behalf of Ceglia’s fabricated interest.

Here’s the rub for me. No one is saying that there should be a damage cap for Zuckerberg’s lawsuit. No one is claiming that he is filing a frivolous lawsuit. No one is complaining that he is clogging up the court system and that he should be perfectly satisfied with the money that he has.

That’s the double standard. If this had involved a fact pattern of being rear-ended by another car while sitting still at a red light, Somehow it should have limits or would be considered frivolous by some. The different legal standard… it can get me riled up!

And for pic o’ day, speaking of being riled up:


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Some Courthouse History

Sunday, October 19th, 2014

As I made my way up the Welch County courthouse steps, local counsel met me at the top and asked whether I had seen the bullet holes. “The bullet holes?”, I asked. He then pointed to the side of the courthouse where one of those gray history signs was standing.  The attorney told me that he would show me when we finished court.

I then walked into a courtroom that looked like something from a movie set. It had the dark wood and plenty of seating. Years ago, people did not watch TV for entertainment; they went to the courthouse to watch cases. This courthouse had plenty of seating, which hearkened back to those days.

We finished up our hearing, which included several motions and a setting of the upcoming trial. Then, we walked outside to the side of the building. That’s when I learned the story of Chief-of-Police Sid Hatfield. (Wiki)

William Sidney “Sid” Hatfield (who is listed as distantly related to William Anderson “Devil Anse” Hatfiled, leader of the Hatfield clan of the Hatfield/McCoy fame ) was born in 1843. He had a reputation for hard living and fighting, and was a surpise appointment as Police Chief of Matewan by Mayor Testerman, in 1919.

As a defender and supporter of the United Mine Workers of America who had unionized all the coal miners, he used his office in leading a resistance against Baldwin-Felts operatives. Baldwin-Felts had sent representatives to the town to evict minors and even offered Hatfield and Mayor Testerman bribes, so that they could station machine guns in the town. Both refused the bribes. The coal mine owners would cheat the minors at the scales by paying them less than the entitled weight payment for the coal.  They also decided that they wanted to break up the union by getting rid of minors who had joined.

These Baldwin-Felts detectives were basically a private police force that had some U.S. Government sanction for their actions. They were supposed to keep things from getting out of hand for the coal mine owners. Against them stood Hatfield. (Here is more of the history of the two sides here)

In the Battle of Matewan which stemmed from those hostilities, the Mayor was killed. Thereafter, Hatfield married his widow which led to the accusation that Hatfield had some responsibility in the killing of the Mayor. The battle gave Hatfield some celebrity including a part in a short film. In that battle, Albert and Lee Felts were killed which led to a desired vengence for their death.

Thomas Felts sought revenge for the death of his brothers. Unrelated to that battle, Hatfield and his deputy, Edward Chambers, were set to stand trial for conspiracy charges on another matter. Probably part of revenge for not taking the side of the coal mine owners.

Both men arrived at the Welch courthouse on August 1, 1921, with their wives. History records that they were both unarmed.  That’s where several Baldwin-Felts men were waiting for them. They shot them on those courthouse steps.

Hatfield was shot in the arm and multiple times in the chest. He died instantly. Chambers was shot several times and ultimately shot in the head. All this took place right in front of their wives. None of the “detectives” were ever charged with a  crime, as they all claimed that they shot the men in self-defense.

Today, the bullet marks remain. Also, there was an Oscar-nominated 1987 movie titled Matewan starring David Strathairn as Sid Hatfield. I left the courthouse thinking… not your everyday courthouse!


And for pic o’ day we have a bit of a battle with a clear winner:




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Business Cat

Wednesday, October 15th, 2014

I am in West Virginia for a case and did not get a blog written. I feel like like “business Cat” is demanding my blog and I have let him down!!!

Business Cat

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