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Archive for Trip and Fall

What is Really Important?

Sunday, January 31st, 2016

During the reign of Louis XIV King of France, it was considered bad manners to knock on a person’s door with your knuckles. Instead, good etiquette dictated that you scratch with the little finger of your left hand. For that reason, courtiers would let the little fingernail on their left hand grow long. Maybe they got tired waiting outside the door in the cold… while they scratched!

American businessman King Camp Gillette spent eight years trying to invent and introduce his safety razor. After founding Gillette Safety Razor Company in 1902 he started to manufacture and sell. In 1903 he had a start that seemed to indicate failure. He sold a total of 51 razors and 168 blades. The second year… 90,884 razors and 123,648 blades. His vision for a successful disposable razor company was looking up! The importance of a disposable razor was now realized by the public.

Robert E. Lee was not a slaveholder. In fact, he never believed in slavery. He was very hopeful that Virginia would not seceded from the United States and took a strong position against it. What motivated him to be the Commanding General of the Confederacy was his love for Virginia and that he didn’t want to see anything bad happen to it. At the conclusion of the war, he announced that “I am rejoiced that slavery is abolished”. Losing the war did not hurt his reputation. He has been called America’s greatest soldier. He knew what was important to him.

People are now talking about going to Mars. According to the Mars One project, over 100,000 people have already applied. While there are private enterprises working toward trips to Mars, NASA is charting a possible government trip to Mars. There are four women astronauts who are currently training to be considered for the mission. (Glamour.com)

The Government mission is estimated to be about 15 years away from takeoff. It will take that long to build and test the equipment. Radiation exposure is still a major obstacle, among many others.

The shortest route to Mars from here is 35 million miles of travel. With current estimates, it would take somewhere between six to nine months for travel one way; And if you plan a round trip, it’s about two to three years.

When NASA initially announced that they were taking applicants for training for a potential Mars trip, 6100 applied. I guess if you are a parent or married, you turn to your family and tell them that you are pursuing your Mars dream… and everything will work out. Time flies when your having fun? Decisions have intended and unintended consequences.

I have listed these various news items and stories over the years. Depending upon the time period creates the importance of the event. Then, the next generation comes along and what seemed important before is replaced by current importance.

On a daily basis, I see clients who are going through difficult times and hardships. A crash that changes lives in a moment.

One thing that I have learned through my years of the practice of law is that nothing else really matters… if you don’t have your health. As Steven Adler said, “You can have all the riches and success in the world, but if you don’t have health, you have nothing”.  You really don’t care about trips to Mars or how loud someone might be knocking at the door.

And for pic o’ day, I have a couple that show “importance”:

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Vocational Rehabilitation Testimony

Tuesday, December 15th, 2015

Vocation Rehabilitation! I suspect that those 2 words just made you scroll to the bottom for the picture. So, let me make this short and relevant to our clients’ claims.

In 1984, a Canadian farmer began renting advertising space on his cows… and businesses bought. He had the foresight to look for other avenues of income.

In Virginia, a Vocational Rehabilitation Specialist can testify as an expert on what someone lost as a result of their injuries. They testify about work capacity and loss of opportunity. It is up to the jury to believe whether it is a realistic damage of the case.

A person may be working as a waiter but was planning on being a cabinetmaker. After their injuries, they are unable to do the physical labor. So, the jury can receive testimony on what the person could have made, if physically able to pursue their desired vocation of becoming a craftsman in cabinetry. Lost opportunity and lost income.

It reminds me of the story of actor Steve McQueen. He was taking karate lessons and encouraged his teacher to pursue acting. So, kickboxing champion Chuck Norris was motivated to pursue acting! He was able to pursue his dream without physical limitation.

And for pic o’ day… one of my yearly favorites:

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Hard to Win an Argument

Sunday, December 13th, 2015

Stephen Hawking records the story of a well known scientist who was presenting a public lecture on astronomy during the early 1900′s. He described how the earth orbits around the sun. That the sun, in turn, then orbits around the center of a vast collection of stars called our galaxy.

At the end of his lecture, a little old lady at the back of the room stood up and verbally confronted him in front of everyone.  ”What you have told us is rubbish. The world is really a flat plate supported on the back of a giant tortoise.”

The scientist coyly smiled at her and then asked her, “If that is true, then what is the turtle standing on”. “You’re very clever, young man, very clever”,  said the little old lady, “But it’s turtles all the way down!”.

I was reminded of this logic this past week as my trial Listserv group was filled with opinion messages. Someone started with the subject title of off-topic. It became a discussion about Muslims and Donald Trump. Soon, lawyer after lawyer was chiming in with opinion.

Every now and then, (by mistake) I would read one of those emails. I saw a few lawyers agree with each other. I never saw someone email back, “Wow, you have changed my mind”.

Dale Carnegie wrote about human relations, “A man convinced against his will is of the same opinion still“. Blaise Pascal summed up persuasion, “People are generally better persuaded by the reasons which they have discovered, than by those which have come into the mind of others”. 

As a trial lawyer, I live in a world of persuasion. Many times at the conclusion of each case, I  find myself wanting to ask the jury, “What more should I tell you to persuade you? What do you want to hear to make up your mind?”. When I have figured that out… I have been successful for my client.

For pic o’ day, I will start posting some holiday pictures, but Amy M. sent this one and it made me laugh!

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Case Investigation

Thursday, December 10th, 2015

Southwest Airlines has announced that their new planes will be equipped with bigger seats for their customers. The new seats are gaining an extra seven-tenths of an inch and will now measure 17.8 inches wide.

When I read that, I really didn’t know what that meant. To compare, seats on the 737′s flown by Alaska Airlines are 17 inches wide according to SeatGuru.com. American Airlines, United  and Delta planes all offer coach seats with 17.2 inch inches of ”room”.  First class seats are sometimes as wide as 21 inches.

I suspect that we will see Southwest advertising their “roomy seats” as a reason to fly. Their “bags-fly-free” campaign  has already been very successful. (CBS) So they know what works in making fliers happy.  It’s a reminder that the difference in success can be in the details.

In the investigation of new cases and potential clients that we begin to represent, it is very helpful to get into the case in the beginning. Conversely, insurance companies attempt to keep claimants from contacting a lawyer. Instead, I have heard adjusters recommend to the person that it will be better to negotiate directly with the insurance adjuster, instead of paying an attorney fee.

Prospective clients don’t begin to investigate their own cases. It usually causes them to wait to see what the adjuster will offer. Unfortunately, that sometimes causes evidence to disappear and cars to be repaired without pictures being taken.

A claimant may not have much property damage to the back of their car after a crash. That might not reflect the force of the crash as much as the fact that car manufacturers reinforce the back of their cars to protect the gas tank. The force then is transmitted through the car and into the occupants who were rear-ended.

The true damage may be to the front of the car that caused the crash (the defendant). That’s because the front is not reinforced like the back of the car. If the insurance company only takes a picture of the minimal damage to the rear of the prospective client’s car… then the hood/front-damaged car may be repaired without documentation. And there goes the details!

The truth lies in the details. Does an insurance adjuster have any motivation to take pictures of both cars before repair?

I hope you have a great weekend. And for pic o’ day…

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The Moss Power of Legislation

Sunday, November 29th, 2015

Coming back to the office after a long weekend causes multiple emotions. I always know I have lots of work to do on Monday. I also spent the past few days doing many things besides eating good fixins’. That included a lot of reading.

I read one article on blogging that advised that a successful blogger should include a lot of pictures to keep the reader’s attention.

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Another article said to reduce or eliminate pictures in blogs, and get right to the point. So, I guess you can always find someone to agree… or disagree!

Which brings me to more of my weekend reading. While reading Tidewater’s Pilot Online over the weekend, I was saddened to see an obituary/article titled  Thomas Moss, former House speaker and Norfolk treasurer, dies. That leads me to remember a personal court story about Tom Moss, as well as a reference to his power as a legislator. 

In 1981, The Washington Post did a story on Tom Moss, who at that time was the Majority Leader for the Virginia House of Delegates. As discussed by the reporter in that story, Moss also represented Yellow Cab company and used his position to contact the State Corporation Commissioner, to get a license for them to operate in other cities besides the city of Norfolk.

As the article recited, Moss legally used his position and power for business. This was done across the board by legislators. The reporter noted that the licensing was granted to his client without the normal hearing, as a testament to the power of a lawyer-legislator.

Now dial forward a few years. This is the memory that I recalled when I saw that Tom Moss had passed away.

It was the mid-1990′s, as I stood in front of a jury to give my opening in the Norfolk Circuit Court. My client had been in a rear-end crash; been to the emergency room; and been treated by a chiropractor for 20 visits. I explained the case to the jury and sat down. To get this far, I had turned down an offer of $9,000 from the Cab company, whose driver had hit my client.

Tom Moss stood and gave his opening. Shortly into it, he advised the jury that my client had been treated… not by a doctor… but by a quakerprackeracker. It was his way of making fun of a chiropractor. He made sure to emphasize quack. I stood and objected and a laughing judge told Mr. Moss not to say that again. Throughout the trial he would still repeat some word that included quack, and then pretend as though he merely was unable to pronounce chiropractor. The jury would laugh with him to my chagrine!

When it came time for my closing, I stood to muster as much enthusiasm as I could. I asked for a verdict of $50,000 and heard Mr. Moss snicker behind me. Then, he got up and gave his funny closing as the jury laughed along with him. As a young lawyer, I felt very frustrated.

The jury was out for about 45 minutes. They came back and the judge asked them to read their verdict. The foreman stood and read, “We the jury, find for the plaintiff, and award damages in the amount of $37,000″. Later, the two members of the jury came up to me after they were dismissed and said that they thought that Mr. Moss was really funny. At that point… I did too!

Honestly, I was excited and stunned by the result. After the jury left, Mr. Moss told me to enjoy this verdict amount because it would never happen again. I didn’t know what he meant. I assumed he meant that next time my verdict would be closer to 9K.

I learned that in the next General Assembly session, Delegate Moss was successful in getting a bill into law that made all taxi drivers classified as independent contractors. So, the Cab company only had to carry the minimum amount of state coverage on their taxis. An amount of $25,000 of insurance and no more. They could not be responsible above that amount if the driver was in a car crash because their driver was not an employee under the new law.

I had two more trials against Tom Moss in Norfolk Circuit involving Norfolk Cab. From that point forward, I could get a significant verdict against the taxi drivers. But, they usually had no personal insurance or assets.

Under the new law… the Cab company was only responsible up to $25,000 of any verdict. As Mr. Moss told me at the conclusion of our last trial together, “there’s more than one way to skin a cat”.

He later became Speaker of the House in the Virginia House of Delegates. The articles and obituary that I have attached all discuss how persuasive he was and all the tremendous things he did in his lifetime. When I read those articles and saw that he had passed away, I couldn’t help but travel down a memory lane of those trials.

 

And for pic o’ day, I have to admit that I could relate to this!

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Jury Rights and Comforts

Sunday, October 25th, 2015

An article on jury service grabbed my attention when it mentioned a judge handing out chocolate chip cookies. Plus, I refuse to acknowledge why Twitter is so fascinated with Baby Hitler. So,on to the cookie story.

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But first, some background … no, not on the cookies!

It’s exciting to think that a prospective juror would show up with excitement to hear a case. The reality is that they feel inconvenienced; angry at the parking; and hopeful that they get to go home early.

In Greenville, South Carolina, a jury panel shows up to the Courthouse and is directed to the basement. There, they are asked to watch a film on jury duty that was recorded several years ago. Usually, there are at least 100 people gathered on folding chairs in that room.

Soon, lawyers with cases that might be called during that term are brought downstairs to watch all the jurors stand, and be called by name.

The first time that I participated in that process, I realized that unless I had a photographic memory, I wasn’t getting much by watching over 100 people stand and sit. I suspect that it feels very impersonal for the prospective jurors as they popped up and down while their name was called.

Arizona is the only state that I know, who formally has enacted a Juror Bill of Rights. It begins with the statement that JUDGES, ATTORNEYS AND COURT STARFF SHALL MAKE EVERY EFFORT TO ASSURE THAT ARIZONA JUROR ARE… and then it lists twelve items. The first involves courtesy and respect and the last involves being paid.  Yes, that statement is printed in all caps. I didn’t want you to think that I was hollering.

A District Judge in Sioux City, Iowa, is also taking treatment of jurors very seriously. He says that he uses the acronym WWJW as an approach to jury trials, and he means by that What Would Jurors Want?

In an upcoming article that he has written for the Arizona State Law Review, he is proposing his own Bill of Rights for Jurors. Here is a condensed version of his list:

1) The right not to have their time wasted with “unnecessary, cumulative and excessive evidence.

2) The right to be told during jury selection in civil trials exactly how long a trial will last, minus the time for deliberations. Bennett and his law clerk use an online chess clock to measure time limits during the trial.

3) The right to have plain-English jury instructions before opening statements. Bennett’s instructions “come complete with a meaningful table of content, bullet points and white space.”

4) The right to have their judge “thoughtfully consider innovations that enhance their experience and the fairness of the trial.”

5) The right to “juror creature comforts.” This includes comfortable seating and nutritious snacks. Bennett bakes cookies for the jurors in trials lasting four days or more.

Not sure that the cookies count as nutritious… but I know some folks who would sit on the jury for a day. Of course, I know a few who can’t stand chocolate. For them… maybe a Flatbread pizza! Maybe there is a good movement afoot for making jurors happy!

And  now to our pic o’ day from my Mom:

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It’s the Point of View

Wednesday, October 7th, 2015

A college professor stood in front of his class and wrote the following words on the chalkboard: A woman without her man is nothing.  He then asked his students to punctuate it correctly.

The males in the class wrote the following: A woman, without her man, is nothing.

All the women in the class wrote A woman: without her, man is nothing.

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Here’s another point of view. The airlines have apparently decided that we are only interested in pricing and treat us accordingly. We will put up with cramped travel without benefits if the pricing is right. Doesn’t feel like a very good way of looking at travel.

Which brings me to the finale. Insurance companies and their point of view. We as the insured believe that if we pay our premiums, that we will be covered for loss. If you really think about it, the insurance companies have a different point of view. Premiums collected earn more money. Claims paid mean less money. Hmmm.

Recently I saw the movie Rainmaker again on TV. That’s one of those movies like Shawshank  Redemption that always seems to be on. In Rainmaker, based on John Grisham’s book, he wrote about a lawyer named Rudy Baylor who was trying to hold an insurance company accountable for not providing care to a dying man.

Grisham captured it just as the movie did. In the movie, they introduced an internal memo to deny all claims. Sometimes Hollywood does bring reality to life! That point of view.

And for “pic o’ day”:

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The Tort Law Museum

Monday, September 28th, 2015

The Chevrolet Corvair is in the car graveyard. Do you remember it? Probably not. GM’s engineers got creative by putting the engine in the trunk. For a while, GM had a hot selling car on their hands.

It has disappeared from our highways because drivers complained that they were suffering an unexplained loss of control. Over 100 Lawsuits were initially filed against General Motors for crashes occurring from a loss of control, and car crashes that included the cars rolling over.

Consumer advocate Ralph Nader addressed the handling of the car in his book Unsafe at Any Speed. It was determined that the Corvair’s suspension was the cause of the control issues, and discovery in those lawsuits showed that GM had denied the request of the suspension engineer, who had fought GM’s decision to remove an anti-sway bar during manufacturing… for cost reasons. Economics had impacted safety.

It did put Ralph Nader on the map as THE consumer advocate, as he was involved in several consumer safety issues and regularly testified before Congress. In 1966, President Lyndon Johnson invited him to the White House to witness the signing of new highway safety laws. In fact, he would later run as an independent candidate for President in 2000; and some credit his candidacy in  helping to elect President George W. Bush. It was presumed that his supporters would have supported Al Gore in that tie-breaking election.

Now at age 79,  the New York Times is reporting that Nader has established an American Museum of Tort Law, with exhibits that show various products that have been removed or made safer; as well as lawsuits that were successful in helping consumer safety.

The full article (here) tells about the exhibits in the museum. And here is a picture of Nader at the museum.

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The museum claims to describe the evolution of the laws of negligence and liability. It includes exhibits of the Ford Pinto, the asbestos claims, and the tobacco lawsuits. Nader also hopes that students will come to the museum for mock trials to reenact some of the historic trials that are mentioned in the exhibits.

Nader regularly writes a blog on consumer topics at Nader.org.

And for pic o’ day, I am posting a “previous” because this team always makes me laugh.

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The Egg Shell Head

Tuesday, September 22nd, 2015

It’s been called “the pain of being a redhead”.  According to research studies (Here), people with red hair need larger doses of anesthesia during medical procedures. In addition, there’s evidence that redheads are resistant to the localized pain blocker Novocain. An extension to that finding is the statistic that redheads are twice as likely to avoid going to the dentist… as other hair colors.

I know that the following scientific reasoning for hair color is a bit mind-numbing. Have you ever heard someone say that it was like looking into the eyes of Medusa and that they just couldn’t look away? Well, this is just the opposite. So, to skip boring gene stuff, skip the next paragraph.

If you decided not to skip…. the reason for hair color having bearing on response to anesthesia is based on our genes. People with brown, black and blond hair have the gene for the melanocortin-1 receptor that produces melanin. Conversely, the MC1R gene causes the production of a substance called pheomelanin which causes red hair and fair skin.

I read that “gene stuff” in several articles and wrote it down for the blog. All I know is, that it has nothing to do with Wrangler or Levi. But, the gene composition has to do with how we react to anesthetics. Which leads us to the concept of taking a person as you find them in the consideration of injuries caused by someone’s fault.

In car crash cases, the jury receives instruction on the law from the judge. In cases where a person had some prior problems, physical conditions, or a accident. It’s not unusual that there was evidence of preexisting conditions. So, the judge will read the following instruction to the jury:

If you find that the plaintiff had a condition before the collision that was aggravated as a result of the collision or that the pre-existing condition made the injury he received in the collision more severe or more difficult to treat, then if you find your verdict for the plaintiff, he may recover for the aggravation and for the increased severity or difficulty of treatment, but he is not entitled to recover for the pre-existing condition

This jury instruction is sometimes called the “Egg Shell Head” instruction. Much like Humpty-Dumpty who sat on the wall. If someone pushed him off the wall, they cannot then argue that they are not be responsible for Humpty’s injuries after  “all the kings horses and all the kings men, couldn’t put Humpty together again”.IMG_0308

In a civil lawsuit for damages from a car crash, a defendant takes a person as they find them. We are all different, just as we all have different pain thresholds. A person must be responsible for whatever they cause, and cannot argue some weakness of the injured person as a defense. They are only responsible for what they cause or aggravate.

An aggravation of a preexisting injury or condition is really what happens in many cases as the client gets older and has dealt with the realities of life.

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Week One in the Books

Monday, September 14th, 2015

The National Football League has just completed its first full week of games. Some teams sit at the hopeful 1-0, while others are 0-1 and telling reporters that it’s a marathon not a sprint. As a Colts fan, I’m glad that week one does not decide who will be in the playoffs.

In professional basketball (NBA) the same thing is true except that teams play 82 games versus the NFL’s 16 game regular season. In 1978, the Washington Bullets faced a difficult task throughout the playoffs.

In the Eastern Conference semi-finals between the Bullets and the San Antonio Spurs, the Bullets fell behind in the best-of-seven series 3-1. All San Antonio needed to do was win one more game and advance to the finals. The Bullets coach, Dick Motta, overheard a broadcaster talking about the series, which caused Motta to tell his team, “The opera ain’t over ’til the fat lady sings.”

Sure enough, the Bullets came back to win the series, advance to the NBA championship, and ultimately beat the Golden State Warriors to become NBA champions. Throughout, their mantra remained the same with many Bullet fans wearing t-shirts bearing that slogan.

Which brings me back to football and the Colts. In 1955, Pittsburgh Steeler coach Walt Kiesling called quarterback Johnny Unitas into his office to tell him that he was going to be cut from the roster because, “I’m sorry, but we can’t use you.”

Just three years after being cut by the Steelers and having to play semi-pro ball until he could get back in the NFL, Unitas was playing quarterback for the Baltimore Colts. In the 1958 NFL Championship Game, he passed for 322 yards to lead the Colts to a championship over the New York Giants. Later, he was inducted into the NFL Hall of Fame.

Vince Lombardi gave good life advice about difficulties in life. “It’s not whether you get knocked down, it’s whether you get back up.”

I regularly see clients who have gotten knocked down by an event like a car crash. I also am challenged personally as I see them get back up,  and while not letting difficulty stop them.

And for pic o’ day, this is dedicated to those who can’t put their phones down.

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