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Archive for Legislation and Politics

What is Virginia’s Statute of Limitations?

Wednesday, May 15th, 2013

     Who is Limitations and why is there a statute named that ? ice cream

     Yes, that’s probably the kind of question that I would have asked when I was a kid. For the same reason that I thought that the song  we were singing in church was, “Bringing in the sheeps… we shall Columbus, Georgia”,  instead of “Bringing in the Sheaves… We shall come rejoicing”.  That’s what happens when you sing what you hear, when you can’t yet read. Like Statute of Limitations, not statue of limitations.

     Of course, I really am doing a round about discussion of the question, “How long do I have to bring a lawsuit”? Well, below is a quick chart on some civil actions, provided from Lawyers.com.  Separately, ”When does the statute start to run” is a question that is sometimes argued to a Judge. 

      Still, even with the following chart, it still can be a bit confusing. kinda like:confusion chart 

Assault and Battery, 2 years

Va. Code § 8.01-243(A)

Contract (in writing), 5 years

Va. Code § 8.01-246(2)

Contract (oral or not in writing), 3 years

Va. Code § 8.01-246(4)

False Imprisonment, 2 years

Va. Code § 8.01-243(A)

Fraud, 2 years

Va. Code § 8.01-243(A)

Enforcing Court Judgments, 20 years

Va. Code § 8.01-251        

Legal Malpractice, 3 or 5 years (Depending on the type of contract or agreement)

Va. Code § 8.01-246(2) or (4)

Libel, 1 year

Va. Code § 8.01.247.1

Medical Malpractice, 2 and up to 10 years (Depending on the type of malpractice and when it’s “discovered”)    

Va. Code § 8.01-243(A) and (C)

Personal Injury, 2 years

Va. Code § 8.01-243(A)

Product Liability, 2 years

Va. Code § 8.01-243(A) and (B)

Property Damage, 5 years

Va. Code § 8.01-243(B)

Slander, 1 year

Va. Code § 8.01.247.1

Trespass, 5 years

Va. Code § 8.01-243(B)

Wrongful Death, 2 years

     So for pic o’ day, just in case you aren’t interested in a chart, how about a little lawsuit adversity that compares to… hand meets fist? I know… it’s getting crazy!

hand meet fist

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Warrants for Cellphone Searches

Tuesday, May 14th, 2013

      If you look at Internet home pages, you might read  ”How to stop the FBI from reading your email” or  something about the IRS targeting the Tea Party and how the Justice Department is investigating.   

     Expectation of privacy, government intervention in private lives and Constitutional protection are all hot topics. Stay with me on this. I know that the prior sentence can cause anyone’s eyes to just glaze over. Instead, let me tell you about a Florida case and see what you think.

     The decision has been called a protection for drug dealers and child pornographers. Others call it an appropriate recognition of the Fourth Amendment to the U.S. Constitution, that guarantees that citizens are protected against unreasonable searches and seizures.

     The Tampa Bay Times reports on the ruling from the Florida Supreme Court. In a 5-2 opinion involving facts from a 2008 robbery of a convenience store, the Court ruled that “a warrant was required before the information, data and content of the cellphone could be accessed and searched by law enforcement”. It is all about the expectation of cellphone privacy.

     The majority ruled that police cannot just take a cellphone and go through it, without a warrant. There is an expectation of pricvacy. The two dissenting justices noted that the opinion “has the potential to work mischief in Fourth Amendment law.” 

     The police noted that a man found with five child pornography photos in his pocket, could be arrested for having child pornography photos in his possession. Conversely, if the pictures are on a cellphone, “he’s going to get away with it”.frustration

 

 

(frustration)

The Court did leave open the possibility that there could be an exemption for the requirement of a warrant for  ”exigent circumstances”. That might leave the door open if it appears that evidence is about to be deleted. That makes me imagine a police officer snatching a phone out of the hands of some suspect who is scrolling and deleting.

     I regularly hear the expression that “our founding forefathers would have (insert a multitude of things)”.  Sometimes it does seem clear as to what the Founding Fathers and framers of the Constitution meant. Other times, it might not seem so clear. Especially when it relates to cellphones and other technology. Like this is a case where modern day meets Constitutional scrutiny. That’s why 7 Justices on the Florida Supreme Court could not agree.

     This robbery case had made it to the Florida Supreme Court after the Court of Appeals had ruled differently. They had applied a 1973 case where police had found heroin in a cigarette pack during a search. This Supreme Court overturned the lower court and distinguished the phone from drugs in a cigarette pack. What do you think?

     For pic o’ day, how about some airline non-humor:

airline nonhumor

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A Claim for Insomnia

Tuesday, May 7th, 2013

     From 2004 through 2007, attorney Victoria Anderson worked for Discovery Communications. She was commended for her strong technical, legal and drafting skills. Her annual reviews did note that she needed to improve her organizational and interpersonal skills. She needed to do better in getting along with others.

     Acccording to an article in ”Virginia Lawyers Weekly” (Deborah Elkins), in October of 2006, Anderson took a leave of absence from her employer under the Family and Medical Leave Act. She was having difficulty sleeping. 

     Testing ruled out sleep apnea. Her physicians determined that she was suffering from fatique, sleep deprivation and insomnia and prescribed her Ambien, to help her sleep. Anderson then returned to her job in November. She came with a doctor’s note that advised that her daily work schedule had to be limited to eight hours.  After two follow-up doctor appointments, in December she was then released without any work restrictions.

     When Anderson returned to work, she advised her employers that she could only work between the hours of 11:00 a.m. to 4:00 p.m. Her employers advised that they needed her to work a full 40-hour work week because their core business was during the hours of 9:00 a.m. to 6:00 p.m.

     In December of 2007, Her employer fired Anderson, claiming that she had entered inaccurate time entries for her work; refused to accept a performance plan, and had a ”combative, difficult, and manipulative” nature.

     Anderson sued her employer. The case was styled Anderson v. Discovery Communications LLC.  Her lawsuit was based on her claimed rights under the Americans with Disabilities Act.  

     The Federal Court judge granted summary judgment for the employer. She appealed to the 4th Circuit. The 4th Circuit upheld the lower court’s dismissal; and the appellate panel, in an unpublished opinion, ruled that “sleep patterns vary between individuals and even during a person’s lifetime. On this record, Anderson simply failed to present evidence creating a genuine issue of material fact as to whether she was ‘substantially impaired’ in December 2006, as a result of her insomnia”.

    Separately, Anderson had also brought an action for retaliation and an interference claim. That also was dismissed because she remained employed and was given full benefits until her termination. According to the Court, the employer had a legitimate reason to terminate her; based on her untrustworthiness in completing time sheets and poor communication skills.

     In simple terms the Court was saying… The End.

     And this pic o’ day just seemed topical!

a nap

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Seat Belt Counting

Monday, May 6th, 2013

     Virginia’s relies on good old-fashioned research. It hires students to count the people wearing seatbelts in vehicles.

     Seatbelt counting

     OK, I know that I shouldn’t, but doesn’t this give me another excuse to post Eli Manning’s picture?

Eli

     I know, I am probably the only person that sees humor in this. So, just bear with me. Pretend that it really does make the point that he is really watching and paying attention. What… not so much?

     Anyway, PilotOnline reports that Virginia has hired surveyors to stand on the side of the road and look into cars, to see if people are wearing their seat belts. Those hired are trained to mentally capture about a half-dozen details in about 3 seconds, as cars pass by. Was the driver male or female? On a cellphone? Was the passenger wearing a seat belt?

     All this is done to collect data all across Virginia, to help contribute to a constant collection of research on safety “in the Commonwealth”. The workers are paid through a grant with salary, or an average per hour pay of about $12-$15 dollars per hour, on a contract basis. Each survey lasts about an hour per location.

     Currently, Virginia is one of seventeen states that classifies a “failure to wear a seat belt” as a secondary offense; which means that a person can only be ticketed for not wearing their belt,  if they have another traffic violation as well.

     The National Highway Traffic Safety Administration estimated last year that there was a marked increase of Virginians wearing their seat belts. That translated into Virginia having about 36 fewer traffic deaths, 544 fewer serious injuries and $138 million less in costs.

     According to the surveys, last year about 78.4% of daytime drivers were wearing seat belts. It found that male drivers buckled up at a rate of about 7% less than female drivers. However, as one surveyor put it, she has seen, “little, old grandmas driving to church” not wearing their seat belts while “hard-looking teenagers with their music blaring” are cautiously strapped in.

     All of it is a reminder to wear our seat belts. Currently, there is also a move to change the law and make the failure to wear a seat belt, a stand-alone traffic offense.

     And now for pic o’day… a bit self-explanatory:

FB Pose

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Social Security Thoughts & Charts

Tuesday, April 30th, 2013

    The younger you are, the less that you might feel interested in reading this blog. Since our practice does handle social security claims, I thought that I would post a few tables from Charles Schwab, that at least gives you something to think about. 

     As of 2002, you can no longer just retire at age 65. Every year in the federal government budget conversation, there is a move to increase retirement to an older age to save the social security fund. 

     Based on the current law, 2002 was the last year that someone could retire at age 65 and receive full benefits. The table below shows the different variations of when. This is a “looking into the future” blog. For some, the future is getting closer.

     One last thought. Yogi Berra said about the future, “Always go to other people’s funerals or they won’t come to yours”. He also said, “The future ain’t what it used to be”…   I know,  I “pulled a Yogi” by saying “one last thought”.  Kinda like, “let’s pair up in threes”.

     Anyway…something to think about:      

 
If you were born in … Your “normal” retirement age is …
1937 or earlier 65
1938 65 and 2 months
1939 65 and 4 months
1940 65 and 6 months
1941 65 and 8 months
1942 65 and 10 months
1943-1954 66
1955 66 and 2 months
1956 66 and 4 months
1957 66 and 6 months
1958 66 and 8 months
1959 66 and 10 months
1960 or later 67
 
Consider taking benefits earlier if … Consider waiting to take benefits if …
You are no longer working and really can’t make ends meet without your benefits. You are still working and make enough to impact the taxability of your benefits. (At least wait until your normal retirement age so benefits aren’t further reduced due to earnings.)
You are in poor health and don’t expect to make it to average life expectancy. You are in good health and expect to exceed average life expectancy.
You are the lower-earning spouse and your higher-earning spouse can wait to file for a higher benefit. You are the higher-earning spouse and want to be sure your surviving spouse receives the highest possible benefit.

      And for pic o’ day,  retirement?

another retirement

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Lawyers in the General Assembly

Monday, April 15th, 2013

     The Virginia Lawyers Weekly Blog recently highlighted a statistical piece of news that was discussed at the Roanoke Bar Association meeting, The topic of analysis,  ”The Virginia General Assembly need more lawyers”.

     When you just read that sentence, how did it hit you? By the comments at the end of the VLW Blog, it seems that most opinions are based on whether the person posting is a lawyer. First, in considering the need for more lawyers, how many lawyers do you think are currently in the General Assembly? Answer: less than one out of three legislators in both the House and Senate.  Specifically, twenty-nine percent of the legislature are lawyers.

     According to the blog, soon the House Courts Committee will probably be made up of a majority of non-lawyers. Compare that statistic to a sample of bills before that Committee to see if you think it makes any difference in reviewing bills. To find the legislation information, I went to RichmondSunlight.com. It listed the following five bills that have generated the most interest:

  • SB981: Handheld personal communications devices; unlawful to use on school property or crossing, etc.
  • HB1570: Dismissal of action by nonsuit; fees and costs.
  • HB1981: Electronic tracking devices; person who installs, etc., without consent, Class 3 misdemeanor.
  • HB1652: Electronic filing in civil proceedings; certain circuit court clerks may charge an additional fee.
  • HB1584: Digital accounts and assets; enables a fiduciary to gain access

     When considering the necessity of having lawyers in the General Assembly, non-lawyer Delegate Chris Head described why he thinks it’s helpful to have lawyers to “wordsmith” legislation. He cited his recent bill that was designed to make it a criminal offense to sell alcohol to underage customers without first a showing of some identification with “bona fide evidence of legal age”. Under that language, any store clerk could have been convicted, even if they had been fooled by  professionally prepared fake I.D. cards. The language was fixed so as to remove that harsh burden on clerks.

     In the comments to the blog, one person gave a different opinion directly opposite to Delegate Head by reciting the benefits of having less lawyers. As she put it, “when lawyers create the law, they do it in their language, which is not necessarily the language of the land. No wonder the citizen, who must live by the law, cannot comprehend it.”  A reminder that many non-lawyers would be unsympathetic to the call for more lawyers in the General Assembly.

     For pic o’ day, maybe something missing at this workplace???

Construstion

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Comcast Bans Gun Advertising

Sunday, March 24th, 2013

I received two items over the weekend that had financial news about Comcast Cable. First, “The Motley Fool” emailed an investment video with the question, “Imagine What Cable Companies Would Do If Everyone Stopped Watching?”. The investment analysis went on to conclude that losing viewership would cause Comcast to lose about 2.2 trillion dollars, and that Apple TV and Google are on a path to cause the “Death of Cable”.

Then, my email inbox brought me an article from USA Today about Comcast. They are choosing to turn down advertising… any advertising about firearms and ammunition. No more gun and ammo commercials on the nation’s largest cable-TV provider.

Comcast made this announcement after their recent purchase of NBC. Chris Ellis of Comcast’s advertising and sales division reasoned that, “Consistent with long-standing NBC policies, Comcast Spotlight has decided it will not accept new advertising for firearms or weapons moving forward”.

Currently, they do apparently distinguish TV advertising from their web advertising. Comcast, Cox and Time Warner do not list any firearms ad restrictions on their websites.

In response to this Comcast announcement, gun sellers have been expressing mixed emotions. Rick Oliver of Haley’s Lodge, which sells guns, knives and ammunition in Indiana said, “Frankly, I’m a little confused. I’ve been running ads for 30 years. But, if they don’t want my money, I’ll take it elsewhere.”

Greg Hasek, manager of Four Guns, counters that he thinks it’s ridiculous to single out one industry like that. He suggested the widespread advertising for alcohol, despite the many “drunken-driving deaths”. Then, he really went for the metaphor punch, “Buffets are so unhealthy, they can lead to death by obesity complications. Are we going to stop advertising buffets?”

While Washington wrestles over gun legislation, this shows one response in the private sector. Private business has the right to turn down such advertising and business has the right to take their money elsewhere. No word on whether other cable channels will stop advertising the success of investing in gold because it just keeps going up, despite it trading down 6% in 2013. (I just threw in one of my pet peeves right there. They will sell you gold coins and then “hold them for you” or let you hold your investment in your own hands…come on)

Of course, the private sector can run gold ads … if they want. For me, just don’t take away those ads for Golden Corral!

And then, we turn to pic o’ day. Mom sent me another one that she knew would tickle my funny bone:

mom's dogs

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Warren Buffett on Geico Profits

Sunday, March 3rd, 2013

USA Today provided some insight on Warren Buffet’s comments last week, after he delivered his letter to shareholders of Berkshire Hathaway. We learned that Buffett was not satisfied with the stock return for the year. He also chided CEO’s of major corporations for failing to be aggressive.

When he delivers his yearly “address”, I am always interested to see any portion of his discussion regarding Geico, which is part of the Berkshire Hathaway holdings.

funny-pig-insurance-ad

This is the pertinent part from his letter:

The insurance business. Berkshire’s insurance operations “shot the lights out last year,” Buffett wrote. The business generated $73 billion of “free money” for the company to invest. “This is truly having your cake and eating it too,” he wrote. “When I count my blessing, I count GEICO twice.”

What Buffet is saying is that Geico is helping them buy other businesses like Heinz Ketchup. I have no issue with profits for business. I understand that businesses create jobs and that’s what keeps the wheels turning. It’s the same at our law firm.

What we can really gather from Warren Buffett is the application of why insurance companies collect premiums… to make a profit. It’s not to pass on profits by charging less to their insureds. This is contrary to silly tort reformer arguments for caps.

In Texas, all the talk was that they needed a malpractice cap of 250K. By doing so, doctors would be charged less for premiums. Now, almost 10 years later, Texas doctors are not getting any reductions (SEE HERE) but the caps remain. All that means is that those responsible for causing injury are passing the expense on to everyone else.

One final thought on the excitement caused by insurance profits. In Virginia, we still have a punishment damage (punitive) cap of $350,000. What that means is that when profits are in the billions, what kind of punishment does that really amount to. Punitive damages are meant to protect the citizens that are effected by the conduct. Unfortunately, businesses are protected instead.

At least Buffett is honest about why. One of my hopes is to have a judge force him to come to Virginia for a deposition to explain the way that Geico handles their claims evaluations in Virginia. I believe that they are needlessly asserting frivolous defenses and clogging the Court system. Maybe his deposition someday soon. I can hope… can’t I?

If you think I am being tough on Geico; then yes… I am. They make me shake my head. No wonder their new mascot is a pig. It seems apropo to me.

This Pic o’ day “note” reminded me of how I believe that insurance companies accept responsibility.

Insurance responsibility

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The Finder of Fact

Sunday, February 24th, 2013

In the late 1990′s, Vice President Al Gore was being interviewed on CNN by Wolf Blitzer. In responding to a question about his qualifications in running for office; he replied,

“During my service in the United States Congress, I took the initiative in creating the Internet. I took the initiative in moving forward a whole range of initiatives that have proven to be important to our country’s economic growth and environmental protection, improvements in our educational system”.

Gore was criticized and even ridiculed for claiming to have “invented” the Internet. He and his supporters quickly defended him by saying that he never claimed to “having invented the Internet”. He was just discussing how supportive he was personally and through legislation in technology advancement.

When I looked at Sunday’s Richmond Times-Dispatch, I saw a link to PolitiFact.com, which analyzes statements by politicians and rates them on being true or false. The most aggregious statements are rated as “pants on fire”. The little graphic even has fake flames.

One of the political statements is a quote from U.S Representative Eric Cantor. In budget discussion he is credited with saying that, “ The National Science Foundation spent $1.2 million paying seniors to play World of Warcraft to study the impact it had on their brain.” Right next to that statement is a big “pants on fire” graphic.

I did not do any research on why or where Representative Cantor said that. Plus, maybe he was given faulty research or simply misstated what he meant to say. Maybe PolitiFact misstated their facts.

In the trial of a civil matter, juries receive instructions from the judge that is considered as the law of the case to be applied to the evidence. In many cases, plaintiff and defendant will call expert witnesses who give completely different opinions on the exact same piece of evidence.

As to expert witnesses, this is the jury instruction that is usually read to the jury,”In considering the weight to be given to the testimony of an expert witness, you should consider the basis for his/her opinion and the manner by which he/she arrived at it and the underlying facts and data upon which he/she relied.”

In law, a jury is known as the trier of fact. In our own lives, it is up to us to determine truth or fiction. We have learned that we have to do our own research before just accepting what we hear or read.

When I think of truth, I am reminded of my grandfather’s quote that I probably have written in a previous blog. Still, when I think about it it brings back a good memory.

Before bedtime, he would always insist on making sure that I brushed my teeth. Plus, he did not want me to shortcut it and miss a tooth. He would look me in the eye and say, “be true to your teeth or they will be false to you”. Good motiviation!

Tomorrow’s blog will be a follow-up on this when I discuss a trial from last week.

For pic o’ day, some truth:

Admit it

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“House of Cards” Thought

Sunday, February 3rd, 2013

House of Cards” is a Netflix original series that had Wall Street talking last week. Unrelated to the show, Netflix had seen a dramatic rise in its stock over the past few days. That’s because the streaming network has been gobbling up programming and beating its competition. Amazon and Apple TV are suddenly trying to catch-up.

This isn’t a blog about whether Warren Buffet would invest in Internet programming. Instead, new ground has been broken with a slick television series that was available for viewing in our homes, without a “brick and mortar” televison network being involved. Instead, to watch the show, you have to pay the monthly fee to Netflix, not to some cable or satellite company. That’s the only way that you can see Kevin Spacey play a Democratic congressman/ House Majority Whip.

Curiously, they have written the storyline to include Spacey to be a Congressman from South Carolina, whose district includes Gaffney. That’s why it’s crazy that one of the show topics includes a lawsuit over the big peach that is along the highway. That peach has its own claim to fame when you search it on the Internet.

The show does discuss the making of laws in all of its dirty back-room politics glory. No one is living a life that resembles any kind of good character. In fact, it is all unsurprisingly immoral… exactly what we expect from politics.

The reason that the show makes the blog is because of one of the programming methods that is being used. The main character (Spacey) regularly turns directly to the camera and looks to the viewer. Then, he speaks directly ” to the viewer” to give some background or “wisdom” on what is going on in the scene or in the mind of one of the other characters.

I would guess that there is some risk with this viewing method. Of course, Netflix is taking the risk that by spending on this series, more people will subscribe.

As to speaking into the camera directly, wouldn’t it impact our lives if we really believed that someone was always watching everything that we were doing. Would that effect our conduct in life? Perhaps, it would make more people accept responsibility for what they do. Maybe it would even make insurance companies act differently. Well…. maybe I am getting a little carried away on the insurance part. Still, can you believe that the Peach made it into the show?

For pic o’ day I went with a life of practical:

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