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The Reasonable Doubt

Tuesday, August 4th, 2015

There is a closing argument that has ‘made the rounds”. Why it is apparently fiction, it’s still has Hollywood-like impact to explain the concept of reasonable doubt in a criminal trial. The story goes something like this:

A Defense attorney was giving his closing argument in a case where his client had been charged with murdering his wife. Prosecutors had used circumstantial evidence because her body had never been found. Knowing that all he had to do was create a reasonable doubt in the minds of the jurors for a finding of not guilty, he decided to use a creative closing argument.

Defense counsel emphatically proclaimed that his client was not guilty of killing his wife, because she was still alive. Then, he told the jury that he was going to prove that she was still alive. He then pointed his finger at the back door and said, “I will prove that she is still alive because she is going to walk through those doors right now”.

Every juror turned and looked in the direction of the defense lawyer’s outstretched arm. That’s when the defense lawyer said that the jury had to find his client not guilty. The fact that they had looked at the doors with the anticipation of the wife walking through them, was proof that there was reasonable doubt that his client had killed his wife. The defense lawyer then sat down.

The prosecutor slowly rose from his seat to begin his closing. He too pointed towards the courtroom doors. Then, he calmly spoke as he looked at the jurors, “I know for sure that the defendant killed his wife. Here is how I know. Every eye in this courtroom looked at that door when defense lawyer told you that the wife would be walking through the door. Every eye but…the defendant didn’t bother to look, because he knows  that she’s not going to walk through those doors.  He knows,  because he killed her.”

I was reminded of that story when I read a story yesterday in the Richmond Times-Dispatch titled An ex-Midlothian man’s trial, witness says he saw woman presumed slain.

The writer is reporting that the defendant defiantly testified that he did not kill his girlfriend (Story here). Then, he went on to explain why her blood was in his house.

The defense then called a witness to testify that he had recently seen the girlfriend on an airplane flight, as she walked up and down the aisle. He explained that he knew it was her because he had seen her picture “on every telephone pole” near his house. Then he testified that, “If this is not the lady on the plane, then she has an identical twin out there, and I mean identical”.

The prosecuting attorney then stood to cross examine that witness. He was able to establish that the witness had gotten confused over the defense and prosecuting attorney by calling the prosecutor by the defense attorney’s name. Both wear glasses and have thick hair.

The witness admitted to getting the lawyers mixed up, but he also added that he had provided that information several months earlier to law enforcement and they told him to keep silent about seeing the woman on the flight. We will see if that testimony created reasonable doubt when we learn of the verdict.

And for pic o’ day, we have a cartoon of “insurance evidence”.

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Looking at the Case

Monday, August 3rd, 2015

This blog is about an ongoing injury case.  (yesterday’s blog) I told you about looking at the glass half empty or the glass half full. Here’s how to apply it to a car and truck crash.

All cases have their own story. The facts either grab you or they don’t and a jury decides quickly on how they feel about a case. Much like a writer tries to grab you with the first words of a book, so that you will keep reading.

Ernest Hemingway wrote,  “He was an old man who fished alone in a skiff in the Gulf Stream and he has gone eighty-four days now without taking a fish.”  The Old Man and the Sea (1952). That’s a grabber!

It’s after 11pm. A  passenger truck driver decides to take his family up to Wawa to get some food. According to the driver, because it was raining, they decided to turn around and go back home. Then, after making a U-turn, they were  rear-ended by an oncoming car.

The driver of the car says he was driving down the road at the posted speed of 55 m.p.h. All of a sudden, a truck headed in the opposite direction does a U-turn in front of him. It comes right into his lane. So, he fades over into the other lane to avoid the truck.

The truck begins to speed up. As the car gets closer to the truck, the truck begins to “fish tale” into the car’s lane. The car attempts to get out of the way and also hits its brakes. However, the comes into contact with the right rear quarter panel of the truck. There is some significant damage.

The first lawyer tries to prove the case by focusing on why the truck driver was out at 11pm to get food; why he made a hurried U-turn and that the crash occurred in the right rear quarter panel… which suggests that the truck may have faded into the car’s lane. The point of impact argument.

The insurance company for the truck defends the case on the car contributing to the crash, based on the description of the crash and the lack of witnesses for either side.

The second lawyer takes over the case after the first lawyer can no longer handle it. He also again talks to the client/car driver. The client says that the truck that came into his lane was a racing truck, with big tires on the back. A closer inspection of the pictures provided by the insurance company show that the tires were large and slick without traction; what you would expect on a racing truck. They were racing tires.

Someone who knows about truck racing says that, sure enough, those are racing wheels and cannot be used in the rain. Now, that sounds like an explanation for why the truck driver did a U-turn, instead of going to the Wawa… because it had started to rain. After making the turn, the tires without tread could not get traction… causing the truck to fish tale into the car’s lane of travel. The truck driver realized he needed to get home as the rain started coming down.

Now, the story of the case has changed. A different way of looking at the case, despite having all the same facts. It now becomes a story about a racing truck that should not have been on the highway in the rain. As I now hear these facts… I see a glass almost full!!!!!

And for pic o’ day, it’s how you look at things…

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The Glass Half Full

Sunday, August 2nd, 2015

Hanging in one of our conference rooms is a picture of a glass with water. So detailed that you can see the condensation. It’s one of those glass-half- empty/glass-half-full. We sometimes point to it during our meetings to remind us of the thought that it depends on how you want to look at it. It depends on us.

In my college days, I used to interview for sales positions. Sometimes, these sales interviews would include some question from the interviewer like, “Sell me this pen”. So, I smiled when I heard the following story of another job interview.

“Sell me that glass of water”, said the interviewer. So, the job seeker got up from his chair, leaned over and grabbed a piece of trash paper out of the trash can. He placed the paper next to the big glass of water that sat on the interviewer’s desk.  Then, he lit a match and set the paper on fire.

Turning to the interviewer he calmly asked, “Now how much will you pay me for this glass of water?” He made the interviewer look at the glass of water differently a bit differently!

This is the first part of a two-part blog. Tomorrow, I will blog about a case. It’s an example of how one lawyer looked differently at one of our cases.

 

And every blog has pic o’ day…

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Political History

Tuesday, July 28th, 2015

It seems that we are already getting bombarded with a lot of Presidential politics on the airways. Television reps have already warned us about our TV spots getting bumped for political ads. And, the presidential candidate debates are about to start. We are entering the political crazy season. And to think… this is how our laws get made.

That brings me to a bit of political/presidential history. There have been four instances where our U.S. Presidents have been related.

Second president John Adams and eighth president John Quincy Adams were father and son.  Ninth president William Henry Harrison was related to our twenty-third president, Benjamin Harrison. They were grandfather and grandson.

Theodore Roosevelt and Franklin Delano Roosevelt were cousins. And, of course, you remember the history of our 41st and 43rd presidents…. George H.W. and George W. Bush. Now, will Jeb Bush or Hilary Clinton be added to the family tree?

Does that last sentence make you look like this?

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And for pic o’ day, here’s keeping it simple…

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Ice Cream Under Contract

Monday, July 27th, 2015

Anytime that I can write about ice cream in the blog, it gets me excited. So, when I saw this story from the StarTribune.com, I said, “three scoops please!”.

This is a story about a Minnesota Dairy Queen that refuses to give in to corporate Dairy Queen. Since Warren Buffet’s group owns Dairy Queen, it gives me some personal satisfaction to know that someone says “No” to his rules because a contract allows them to do it.

66-years-ago, the owners of a Moorhead, Minnesota Dairy Queen opened their doors as a restaurant. It shuts down in the winter, has no indoor seating , no drive-thru,  and  their customers stand in line on the sidewalk for their frosty treats, no matter what the weather is outside.

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Despite what the corporate management for Dairy Queen may want, this store still operates under a 66-year-old contract that allows them to dish up old-time treats, as well as corporate-approved items.

While newer Dairy Queens operate under strict corporate guidelines, messaging and menus; the Moorhead shop still operates mostly under the terms of a contract signed in 1949. So, they can serve such items as Mr. Maltie, a chocolate malt on the stick; The Monkey Tail,  which is a chocolate-covered frozen banana; and the famous Chipper Sandwich: vanilla ice cream sandwiched between two chocolate chip cookies and then dipped in chocolate.

According to the owner who purchased this store in 1995, “If we changed to the new corporate way, virtually all our food items would be gone,”. He was able to continue operating under the 1949 agreement. However, he acknowledges that corporate would like to see them just fade away.

He says that the corporate lawyers have tried to financially encourage him to sign a new agreement but “there just aren’t enough zeros” to dump the extra flavors and the special feeling that the personalized Dairy Queen gives to its customers. How can you argue with a menu item titled “The Curly Shake” which is a shake with a sundae on top.

To me, different is an experience. A contract that must be honored. Plus, I just like to see the term Rogue and Dairy Queen together!

 

And for pic o’ day, procrastination is sometimes my blog writing enemy:

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Doctors Saying “Sorry”

Monday, July 27th, 2015

Several years ago, I handled a medical malpractice claim where a doctor did a back surgery… on the wrong side. The disc herniation was on the right side of the disc and the doctor operated on the left side of the disc. When the patient woke up, he felt fine until the pain medication wore off. Then the medical staff realized that the patient needed to go through another back surgery to fix to still fix his herniation.

The patient waited for six months before he sought legal representation. When I asked him why he delayed seeking representation, he said that he had just been waiting for an apology from the doctor. After the mistake, the doctor never said he was sorry.

In an article written by a University of Illinois law professor Dr. Jennifer Robbennolt titled  Apologies and Medical Error,  Her studies showed that apologies can play a positive role in settling legal cases. The studies showed that when doctors acknowledged an error and said that they were sorry for causing  harm, such admissions helped to decrease patient blame, anger, and decreased the risk of a lawsuit.

The study indicated that patients who file lawsuits are motivated to find out what happened and to prevent future injury. In another study that analyzed medical malpractice claims, the participants noted that 90% of the time, their motive for filing a malpractice case was to prevent the same thing from happening to somebody else and to receive an explanation for what happened.

In another malpractice study where the physicians talked to the patients about the problems, they referred to the malpractice as simply a “complication” or “problem”. They did not say that they made a mistake or were sorry.

In the remaining participants of that study, fewer than half of the surgeons offered some expression of apology or regret and only 8% assured the patient the error would be corrected. Why were they so afraid to admit fault… because of the fear of a lawsuit. This, despite the fact that apologies effect lawsuits.

So far, 36 states have recognized the importance of doctors admitting fault and saying sorry by enacting  apology laws. It allows the doctors to say to their patients that they made a mistake and are sorry, and such apologies are not admissible in any lawsuit that might be still filed.

      Professors  Benjamin Ho of Cornell University and Elaine Liu of the University of Houston wrote a paper based on their studies of malpractice cases,  concluding that:

we find that in the short run the law increases the number of resolved cases while decreasing the average settlement payment for cases with more significant and permanent injuries. Our findings suggest that apology laws reduce the amount of time it takes to reach a settlement in what would normally be protracted lawsuits, leading to more resolve cases in the short run. In the long run, the evidence suggests there could be fewer cases over all.”

Saying I’m sorry… like they used to say in the Orange Juice commercials, “It does a body good”.

And for pic o’ day, the truth about car alarms!

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Behind the Bankruptcy Curtain

Thursday, July 23rd, 2015

     When a person files bankruptcy, their personal and financial information becomes public record. Notices are sent to creditors. And, a person must be honest about their finances or run the risk of being charged with bankruptcy fraud.

     With that in mind, I read about the bankruptcy hearing of Curtis Jackson. Curtis Jackson doesn’t mean much to me except that the article described him as 50 Cent.

     Recently, he was hit with a 5 million dollar verdict against him. Now, he claims his assets are less than that, which apparently was the main reason that he filed bankruptcy.

     While testifying in Manhattan Supreme Court, he downplayed his income from record sales claiming that, “I make 10 cents a record,” and then stated that even though he is listed as an executive producer on a TV show, that he’s only earned about $150,000 from each of the first two seasons of the Starz drama Power.

     According to the NY Daily News, Jackson claims that his money and cars are all an illusion and that he always takes them back to the dealership. Even his claim that he made money on the Floyd Mayweather boxing match… all bogus. I guess fake it till you make it would just mean, in his case, fake it.   

     And for our pic o’ day as we head into the weekend…

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Some Random Pic o’s

Tuesday, July 21st, 2015

It just felt like a Wednesday for a couple random dog pictures. Or, you can call it Thankful Wednesday… for a short blog!

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An Insurance Comparison

Monday, July 20th, 2015

How did Noah keep up with it? A baby turkey is called a poult. A group of hogs is a herd. A gathering of quail is a covey. A picture is worth a thousand words. (Just seeing if you are really reading)

A group of geese is known as a gaggle. A group of foxes is known as a skunkel. I wonder why they aren’t just called a group of foxes? A baby kangaroo is a joey. And a Koala bear is not really a bear.

When an insurance company does not want to pay a claim, what do you call it?  Just another day at the office. Boom!

And finally… a happy insurance boss said to his employees, “You worked hard this year. As a reward, I am going to give everyone a check for $5,000. If you work real hard this next year… I will sign the checks.”

(Yes, I just decided to write a blog to pick on insurance.)

And for pic o’ day…

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Fitbit and Garmin Discovery

Sunday, July 19th, 2015

In the world of law, discovery of evidence used to be based on basic things like measurements, photographs, witness statements and medical records. Now, it’s not unusual to have discovery include a fishing expedition with a look toward online social media.

Usually, interrogatory questions from each side include discovery of Facebook accounts and whether people have other online messaging that might include a person’s description of life. If a person says that they are hurting and can’t do very much, are they posting pictures of their bowling night? Do you see them posting their picture with a grin… as they jump on their backyard trampoline?

Well, now there’s another possible source of information that may be relevant in a claim.  The Washington Post recently reported on how technology could soon kill the art of lying. “Lies are a fact of life,” the newspaper says. “But technology may soon make them obsolete.”

According to the ABA Journal, “Data from wearable devices is being eyed as evidence in the courtroom”. Lancaster Online tells the story of one criminal case where the defense in a rape case was able to use the tracking of a Fitbit to fight the charge. A woman  said she was asleep when she awoke to find a rapist who assaulted her. The woman’s Fitbit, however, showed that the woman was awake and walking around at the time she claimed to be asleep. Just something to try and create reasonable doubt in a juror’s mind.

Insurance companies are using posted pictures, GPS exercise watches, cell phone GPS discovery and discovery of the identification of friends through social media accounts. This information might help them defend worker’s compensation claims and auto accident injury claims.

Cars now provide data to establish how fast a defendant’s car was traveling at point of impact. Truck drivers might keep two sets of log books to try and fake how long they have been driving. However, now their trucks can establish distance traveled during a specific time, and potentially the speed they travel.

Discovery can tell a story that can refute the defense. It’s part of the reason that I try to encourage people to let us get to work quickly on their claim before information is lost. Maybe try to get that security video footage that may be only available for a short period of time and then erased. On the flip side, insurance companies investigate claims quickly… while they discourage people from hiring lawyers. Pretty savvy on their part.

Still, I never thought that I would see the day when someone’s Garmin or Fitbit would be part of evidence. As one TV show used to say, “The Truth is out there”.

And for pic o’ day, here’s some “photograph discovery”:

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