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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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The Video Deposition

Monday, May 13th, 2013

     Do you remember this Schwab investment TV advertisement? It is comparing a bad stock company to Schwab by portraying some boiler room stock-selling company in a unfavorable way. Their manager is telling all the sales people to get on the phone and pitch some crummy stock to customers by “let’s go out there and put some lipstick on that pig”.lipstick pig

     When I watch it, it still makes me laugh. It also reminds me a little bit about what sometimes happens in some of our cases. A thought on the evidence.  (Practice Alert)  I am going to tell you a blog secret between you and me!  Defense lawyers… your eyes are getting very sleepy. You better go catch a nap.   

     This involves why we video the depositions of the opposing party (defendant) on most of our cases. I am not insinuating that the other side is a pig. Just whether a jury perceives someone trying to be something that they are not. The defense attorney making their client get all  ”dressed up for court”. 

     This past week, I drove to Wytheville, Virginia, for my scheduled depositions. I was taking the defendant’s and the opposing attorney was questioning my client.  We also had the deputy who had investigated this 2010 crash. Because the defense attorney’s office was about 50 miles from the county, we agreed to have the depositions at the courthouse where the trial is scheduled.

     I showed up a little early so I could also get a look at the courtroom. Then, I was shown back to the law library where the depositions were scheduled. Soon, my client, the court reporter and videographer arrived. I had noticed the deposition for video and court reporter. The defense deposition notice was for transcription by the court reporter without any video.

     The defendant arrived before his lawyer. He was dressed in a T-shirt and jeans. Like he would normally dress everyday. Soon, his lawyer arrived. The depositions proceeded. After I had completed the first deposition, the videographer packed up and left.   

     Generally speaking, I think that people should basically dress comfortably. My grandfather was a farmer. He would always dress the way he wanted to… in overalls like a farmer. 

      In court cases, I believe that clients should basically dress in something that they normally and comfortably wear and not wear something that they would normally never wear. I think that some lawyers believe that their clients should always be dressed in their Sunday best; and if they don’t own dress clothes, they should buy some. To me, I think people act differently in clothes that they never wear.

    That takes me to why I like to videotape depositions.  In many cases, I will show the video deposition during trial. The jury usually begins watching the deposition. Then, I will sometimes notice when they look over at the defense table where the defendant is now all dressed up. Consciously or unconsciously, I think that it sends the message that the opposing party is trying to project something that they are not.

     After one trial, I even had a juror come up to me with a smile and comment on how “dressed up” the opposing party came for trial. Maybe it’s just my crazy thinking. I also think that videotaping keeps everyone more alert during the deposition and even captures the tone and pauses of the questions and answers.

     As to last week’s deposition,, it will be interesting to see if the opposing party shows up in his usual clothing or if the defense lawyer will decide to make him get “all dressed up”. 

     Hopefully, the defendant will do something to make the jury ask “why”. Then, maybe that will carry over on to the evidence. In every trial there is a truth-giver and someone who is perceived as less. I think being real about appearance might be part of that. There has to be a reason that “a picture is worth a thousand words”.  What do you think?

     For pic o’ day, I stayed with blame and evidence!!

blame

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Max Lucado’s Devotional

Tuesday, March 5th, 2013

      Because our practice is injury law, it means that no one is calling unless something has happened. Max Lucado (MaxLucado.com) emails a daily devotional. Below is a portion of the one that was sent today that made me stop and think. A reminder of hope: even when times are tough. 

My friend Joy teaches children in an inner city church. Her class is a lively group of nine-year-olds. There’s one exception—a timid girl named Barbara. Her difficult home life had left her afraid and insecure. She never spoke.  Never.  Always present.  Always listening.  Always speechless. Until the day Joy talked about heaven—about seeing God. About tearless eyes and deathless lives. Barbara raised her hand.  “Mrs. Joy? Is heaven for girls like me?”

      pic o’ :

cheeseburger

 

 

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Beat Virginia’s Life Expectancy?

Monday, March 4th, 2013

     In every injury case that we take to trial, we introduce the life expectancy chart (Virginia Code 8.01-419) for the jury to consider when there is evidence of a permanent injury. It also makes me scan the life chart to see how long the law says that I am expected to live.

     According to the chart, at the start, women live to about 80 and men to about 75. The jury instruction tells the jury to give consideration for the rest of that person’s expected life span life. Of course, many clients lean over and whisper to me, “I’m going to beat that!”.

     I have blogged on this before because I am fascinated by the prediction of the length of life. That’s also why I  have blogged on some who have lived long lives, when they discuss their reasons for long life. I am also interested in articles that discuss how to lengthen your life.  

     The March edition of “Parade Magazine” has an article titled “Do You Have a Longevity Personality?” It postulates that having certain emotional traits or even tweaking your behavior can add years to your life. Here are the three characteristics that the article suggests to boost your life expectancy:

     1. Your glass is half full. A study of those over the age of 97.6 consistently found that they were more optimistic and easygoing than the general population. The article recommends that you daily write down things for which you are thankful and it will help to push away the troubles that create negativity.

     2. You’re everyone’s pal. According to a study by Brigham Young University, having strong social relationships can raise survival rates by more than 50%.  It doesn’t mean that you have to be a social butterfly. You can do simple things like invite friends to lunch or join a book club.

     3. You’re never late. Being detail oriented and responsible is consistently associated with longegivity. Making and using to-do lists.

     Staying positive, friendly and organized makes sense,  but coming from a health magazine also gives credence that they really may be a good life-long idea. I just checked the life expectancy chart. Guess what?  I think that it said that I should be writing this blog another 88 years. Let’s all stick together!

     For pic o’ day, here is a cat’s way of keeping the mailman hopping!

cat in mailbox

 

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Read it again, Grammy!

Sunday, January 27th, 2013

One of my favorite childhood memories takes me back to my love of a great story. My grandmother used to get her morning coffee and butter raisin toast. Then, she would sit down in her big red chair and I would sit on the right arm of the chair.

She would reach to her left and pick up a story book from the stack of books that were collected next to the chair. Then, she would open the book and begin to read as I would peer over her arm and look at the pictures and words that I could not yet comprehend.

She had read these same books to me over and over so many times, that I could repeat the words verbatim. Still, with exciting voice inflexion and change of voices to match each character in the books; she read them as though it was the first time, and I listened so attentively as though I had never heard this story.

The stories all had some lesson that included some hero. And, of course, there was always a good ending to the story. Then, I would say, “Read it again Grammy, read it again”. She would commence at the beginning again until we would move on to the next book. The only break usually included her getting a refill on her coffee.

Many times before bed, we would be right back to those same stories. Even if we had to take a break for real life things. As I type this blog, it takes me back to such a good feeling of just sitting there, never wanting the Grammy to stop reading.

In Saturday’s HamptonRoads.com, there was a story titled “Job seeker tries to plant seeds at Va. Beach expo”. The story included a picture of a young man standing in front of the display. He is bit out of place at the Virginia Beach Convention Center, where the Virginia Flower & Garden Show is set up.

The many displays on the floor include potted greenery and garden tools. At this one display, a 27-year-old man stands with a table behind him, and a large white sign that says “John Wike/Bachelor Degree-Business Management”. Instead of selling rakes, he is pitching himself for employment; hoping that during the three days of this convention that someone will have a job opportunity for him.

In real life, the end of the story is not always perfectly scripted. Many clients that call me also weave a story of lost wages and lost opportunity. Sometimes on their path of life, they are unable to pursue a career or take a desired job that has been offered. Other times, they miss so much work that their employer either terminates them or they lose some career advancement opportunity.

Part of the damages of an injury claim can include making a claim for lost wages. That claim exists even if a person did have sick time that they could take as a benefit of their employment. The person that hit them does not benefit from the collateral benefit of a sick leave payment.

Virginia also recognizes a claim for loss of earning capacity. Following an accident, a client may be earning more than they were earning before the car crash. However, they may have lost a job or career opportunity that could have provided a better income for their future. For that, the person that caused the crash should also be responsible.

Every day, I hear “stories” about difficulty. Fortunately, I have also seen many good endings, despite the road of difficulty in getting there.

After I read the “Wike story” about how he was seeking a job; I also continued to read the comments that followed. One person commented that they really enjoyed reading the story. Then, they wrote, “please do a followup story on him…. I bet he gets a job soon”. Just like me, they like a happy ending.

In my head, I can still hear my high voice saying to my Grandmother, “Grammy, read it again” and my grandmother turning the book to the beginning and off we go again to a happy ending.

Just for conversation, I still have people ask me about “my holidays”. So, I am posting this pic o’ day that makes me laugh:

 

 

 

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Money Stumbles

Sunday, January 13th, 2013

 

I just had breakfast with someone who was bemoaning the fact that he has no 401K. One of his new year resolutions is to get started on retirement.

I just met with a financial planner; He admitted that he was frustrated with himself. A lot of the recommendations that he gave to clients was advice that he couldn’t always follow, because of life circumstances. Finances make it harder for him to put as much money aside as he thinks that he should.

Both of these men were saying what most all of us are saying. We know the road to take but it’s not always easy to get there. In my area of law, there usually is an event that has derailed any attempt at setting something aside right now. That adds to the frustration of a client who is trying to get medical treatment; trying to get better; trying not to miss too much work and still trying to make ends meet.

In a time of crisis, it’s almost a guarantee to look back at the past and say, “I wish I would have (insert a multitude of thoughts). ConsumerReports.org has some good reminders on finances that I thought were good blog fodder. They are called “Seven money stumbles to avoid”. In good times, it’s hard to follow these; In hard times, it’s even hard to read them. Still, it’s a good list to work on to keep from making some of these financial stumbles:

  • Not updating wills and beneficiaries. Eighty-six percent hadn’t updated their wills or other estate-planning documents within the previous five years.
  • Not sharing information with family. In only 30 percent of households did both spouses know major details about the family’s finances and where to find account information.
  • Messing up on 401(k)s. About two-fifths of respondents set aside 6 percent or less of pretax income in defined-contribution retirement accounts, most likely missing out on free employer matches. Ninety-one percent never reviewed fund expenses within their plans, though those expenses play a major role in investors’ returns.
  • Underinsuring. A mere 36 percent of homeowners had purchased extended coverage on their homeowners insurance that covered the full replacement value of personal property. Only 20 percent of survey respondents had umbrella coverage to protect them from liability lawsuits.
  • Not planning for emergencies. More than 70 percent said they didn’t have an emergency fund that could cover three to six months of living expenses; 77 percent had not stored important financial information and contacts in a secure place.
  • Not checking credit reports. Four out of five respondents don’t review their three credit reports at least once a year, though they’re free and indispensable.
  • Mismanaging debt. Almost one-fifth of those surveyed had revolving debt on credit cards of at least $10,000. Of the almost one-quarter of respondents who were in debt for education loans, 47 percent had taken more costly private loans.

These really are reminders of preparation and paying attention. Insurance agents have even asked me to run some ads to remind people to buy more insurance. Usually when you need it, you really need it and that’s because the person that hits you either has no insurance or very little. If you carry more than minimum, at least your underinsurance coverage can help with your losses, and then your insurance company can even go after the defendant to pay them back.

For pic o’ day, my mom sent me this one, with some real investment advice!

 

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Stress And Money

Tuesday, January 8th, 2013

USA Today had a weekend article titled  ”More Money, More Problems?  Why Rich Kids Hate Mom and Dad”.  The premise of the article was that  money is a magnifier of family tensions, in wealthy families.

Author Franco Lombardo wrote a book, with studies to support,  that the rich are not happy in their family relationships. He asks why 70% of family businesses do not pass successfully to the next generation?  His answer: emotional and bad issues are brewing in wealthy families.

As a wealth and financial planner, he believes that wealthy kids have problems with their parents because of three common reasons: 1. A child of wealthy parents grows up with a sense that they get whatever they want. Then, when they go out into the real world and the world tells them “No”, they are not prepared for it and resent their parents.

His second reason for the emotional turmoil is his belief that wealthy parents end up being absentee parents. So, kids feel abandoned.

Third, he says that society makes fun of rich kids. They are always faced with scorn or jealousy. According to him, kids then blame their parents for issues regarding their identity. He puts his theories and “findings” in his book titled “The Great White Elephant: Why Rich Kids Hate Their Parents”. (not so sure I agree with this)

Sometimes authors write things… just to be authors. I think that we have all heard that money doesn’t buy happiness; Even if the belief is that it is easier to be rich and unhappy, than poor and unhappy. But, for the purposes of this blog, there’s an application to personal injury law. It is the opposite of having too much.  A completely different emotion.

I recently had a lady tell me that she had just lost her job.  Now, she is starting to get worried because her severance pay is running out and she still has not found a job.  Which is more stressful to her… Not having money or not having a job?

When I send in settlement packages to insurance adjusters, they like specific numbers to support the loss. What were the medicals and what were the loss of wages? How much did it cost to fix the car?

In the beginning of the blog, I discussed books on those that have money. Their problems come from having it. Those without, have problems that are way more than emotional. It is actual loss.

The loss of a job is a loss of money, but the worry is even greater. That is a damage in a case that can almost not be measured. For some adjuster putting some dollar amount on the loss, I suspect that they would put a greater amount if they were also facing the loss of their job.

In jury trials, the laws of evidence say that you cannot argue the golden rule. When arguing a settlement value to an adjuster, I still always hope that they will somehow place themselves in the position of appreciating the world of loss and worry.

For pic o’ day, here’s putting yourself in someone else’s position!

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The Joel Bieber Firm Team

Tuesday, November 13th, 2012

I reached into my sport coat pocket and found a small note from the manufacturer that said the following: “It took 121 people a total of 233 hours to complete this garment. We almost hate to let it go- wait… wait… we said almost!”

My experience with a team concept started small. I worked at a Burger King. I was called the Porter, which meant that I pretty much did it all including trash and mopping. That included getting there at 7AM to pick up trash in the parking lot. Later, I would be in charge of sticking burger patties on the broiler.

I would hear an order for two burgers, french fries and a coke come over the intercom. I just kept the burgers coming down the broiler chain. Sometimes I would have to run to the freezer to grab another box. Someone stood on the other end and would put them on a bun with include pickle, ketchup and mustard.

Of course, you could “have it your way” and hold the burger and bun if you wanted. At the register, the crowd would pay for their bag of food, and that doesn’t even include the adventure of the team at the french fry station or the apple pie station. Somehow, everyone got fed.

During college, I found myself working at Norfolk Shipbuilding and Drydock Corporation. As a pipefitter’s helper, I really had little to add. I was assigned to work on a new ship called the “Aquina”. Hundreds of employees all did a little bit. By the end, there was a ship ready to be taken out of dry dock and placed into the water. Low and behold… it floated. I did try to find a picture of it to post. I couldn’t… I hope it’s still floating!

We just finished moving our  Joel Bieber Firm Richmond law office. It was a reminder of teamwork as we boxed for the movers. We have that same feeling everyday as we work on cases. The lawyers might be the face of the case but its the paralegals and investigators who help build the foundation.

It is not unusual to finish the disbursement to a client and then have the client ask me if they can say thank you to the paralegal.  A reminder of  team.

For pic o’ day, I had to go with teamwork!

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A Titanic Injury Reminder

Monday, November 5th, 2012

I’m not sure whether I should call it a buying weakness or a hobby. It has certainly gone beyond need. I enjoy buying watches. Especially ones that are unique.

This watch is a Romain Jerome brand. It is certified by Harland and Wolff to be made from the original steel of the Titanic. Basically, they included the ship medal and made a “DNA Certified Titanic” watch.

This is an example of turning a bad situation into something worthwhile. In this situation,  owning a piece of the “RMS Titanic” that is a functioning watch.

Greek mythology tells the story of the bird, Phoenix, who rises from the ashes. A story of overcoming. That bird became the symbol of Atlanta, Georgia,  because of being “reborn” from the ashes after it was burned to the ground during the Civil War.

When I look at this watch, I am also reminded of many clients who have managed to turn a very bad situation into a positive. One client was injured on the job and no longer able to work as a pipe-fitter. I remember later, going to his restaurant that he purchased with his settlement money. It made me smile to see a crowd there and to see his look of pride.

Another client was rescued from a burning car by a driver behind her. Years later, the two got married. A wonderful relationship out of a bad situation.

Another client was able to take her settlement money and go back to school. Later, I heard that she was working at the hospital as a nurse.

People normally don’t call me with good news. They call because of some difficulty or injury. The journey can be winding. It’s nice to see an ending that involves overcoming difficulty. Turning a bad event into a something good.

For pic o’ day, how about a Polar Bear alarm clock:

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Protecting Wrongdoers and Punitive Damages

Sunday, November 4th, 2012

     After a good weekend plus a Colts win, I usually stay away from negative. This time, I am getting something off my chest! 

     At the end of October, a group of distinguished lawyers, judges and law professors got together at the Homestead to discuss issues in the law. The group meeting is called the Boyd-Graves Conference.

     The background for the formation of this group is best said on it’s website:   ”The Boyd-Graves Conference was created by the late Thomas V. Monahan, a former VBA president, who believed that civil practice in Virginia would be improved if lawyers with different types of practices, from all regions of the state, would meet and attempt to reach consensus about ways to improve the law.” It was formed in 1978 and has been very helpful in addressing question and needs of law and practice.

     This October meeting did make several significant recommendations. Then, the issue of Virginia’s laws regarding punitive damages immediately ran into a group obstacle.  

     Right now, Virginia has a state cap of punitive damages in the amount of $350,000. That means that if an entity, company or individual is found by a jury to have done or committed an act that is “willful and wanton”, which is worse than negligence. There are several legal terms for it, but basically it is willful and egregious conduct. It basically almost has to be intentional or just a disregard of doing what is right. I probably am not even describing the standard strict enough.

     Punitive damages are meant to punish the defendant; deter such future conduct by that defendant as well as others in the future;  and in doing so, protect the citizens of the state where the punitive damages are part of a verdict.

         I know I am getting too much legal stuff… but here comes the meat of my blog.

     The cap of $350,000 was enacted in 1988. If adjusted for inflation, the cap would now be approximately $677,000 without any real increase. Still, Boyd-Graves rejected any proposal to eliminate the cap or even raise it to a mere increase of $500,000.

     When you hear the term a ”business-friendly” state, you assume that it is helpful to attract businesses to Virginia. In fact, it probably does. However, I really wonder if anyone really finds out what the state caps on punitive damages are, before relocating to that state. If they do, I don’t think that is really the kind of business that we should want to open up here. Instead, I would think that they are mainly looking for tax incentives. 

     I could get stirred up more about this. A business that generates billions in revenue can create a product that they know will kill Virginia citizens. Then, they know that they are only going to be punished in an amount of 350K maximum. It can be something added to their projected balance sheet.

     In past lawsuits, there have been many memos uncovered that showed businesses considering the expense of injury versus profit. Profitability… that doesn’t mean protection for Virginia citizens. To me, I don’t think that a business should be able to weigh its conduct against what the margin of expense per violation or lawsuit in punitive might be. Punishment should really be punishment. For most big businesses, 350K has no meaningful message.  I just thought that this is topical, with an election on Tuesday.

     For pic o’ day, I am posting one of my Dad on a recent vacation. It makes me smile. (Sorry Dad!!!!!)

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