Survivors and Survival Claims: Wrongful Death in Oklahoma

friends-on-facebook-funeral

It’s called “wrongful death”. Maybe it should be called “negligent death” or “premature death”. We’re all going to die, but what would you give for that one extra day? Or, as the old Gospel song says, “Everybody wants to go Heaven, but nobody wants to go now.”

State laws define what claims people and their estates have after they die. There are “survivors’ claims”, and “surviving claims”. Surviving claims are the claims the deceased had which belong to his or her estate. Survivors’ claims are the losses suffered because you loved or were dependent on somebody, and that person was injured and died. In Oklahoma the pertinent laws are 10 OS 1051 to 10 OS 1054.

Here’s the complicated part, if that isn’t confusing enough already. Some parts of a wrongful death claim are assets of the deceased’s estate while some parts of it belong to the survivors for their losses caused by the death. The funeral expenses, medical expenses, and pain and suffering of the deceased belong to the estate, to be distributed according to the laws of “descent and distribution”. However, the parents, spouse, and children of the deceased have their own claims, which are for the grief, loss of relationship, and loss of support they suffer as a result of the death.

Let’s say you love your twin sister Jean and she is killed in a car wreck. You are her only surviving sibling. Your mom is alive, but your dad has passed. Your sister had two kids, who are now adults. After she raised her children she got divorced.  Later, she met and married Bob, and you don’t think too much of Bob.  Your mom and Jean’s kids don’t like him either.

I have some bad news for you. Siblings are not entitled to recover for grief or loss of relationship of their brother or sister who is negligently killed by somebody else. The parents, children, and spouse of the deceased have recourse for grief, loss of relationship, and loss of support. Brothers and sisters, however, have no claim no matter how close they were, or even how dependent they were, on the deceased. Only your mom, your sister’s kids, and her husband Bob would be entitled to recover. Adopted children have a right to compensation for loss of a parent. Stepchildren do not, even if they called Jean “Mom” and she was the one who raised them.

Then there’s the issue of who can bring the claim. By statute, it can be pursued by a personal representative, or if no “P.R.” has been appointed, by the next of kin. Your sister’s next of kin is her husband Bob. Usually the spouse will be appointed as the personal representative (Executor or Executrix if there’s a will, Administrator or Administratrix if there’s not a will). However, Bob can bring the claim as “next of kin” if a probate has not been opened. That person has an obligation to put forward and represent the claims of ALL survivors of your sister, even if the kids and Bob, or your mom and Bob, don’t like each other. This is because you cannot “split a cause of action”. The defendant who caused the wreck has a legal right to defend only one case, even if there are multiple claims caused by the death.

So, it’s complicated. Often there is jockeying to see who can hire a lawyer, get to the courthouse first, and get appointed as Personal Representative so they can get control of the lawsuit. This is a shame, because ultimately everybody needs to be in the thing together anyway.

For example, I represented the father of a teenager who committed suicide in a pediatric psychiatric ward while the child was on suicide watch. Suicide watch means there is required to be a staff member within arm’s reach of the patient at all times, but a staff member violated doctor’s orders and shut the young man up in a room alone after chewing him out for a minor disciplinary infraction. And, he hanged himself.

The parents of the child were divorced and the mom had sole custody. She hired lawyers, got appointed as Administratrix of the Estate, and filed a wrongful death lawsuit on behalf of herself. The dad came to me because he didn’t think his interests were being represented. I filed a Motion to Intervene, claiming that Dad also had a loss and had a right to be a party to the lawsuit. Mom’s lawyers objected, and the judge denied our motion to join the case. I appealed that decision and about a year later the appeals court ordered the trial judge to allow Dad to be made a party to the case, determining that it was “intervention as a matter of right”, not discretionary, since otherwise there was no way for my client to assert his claims for grief over the loss of his son.

There’s a side story here. During the appeal, Mom’s lawyers had essentially done nothing to prosecute the case even though a nurse and another staff member had been disciplined by the nursing board for dereliction of duty. In the meantime, Mom and Dad had been talking, and he was telling her about what was going on in the case because I had kept him informed, and her lawyers had not. She said: “You mean you can call your lawyer and he takes your calls?” “You say your lawyer filed a Motion to get the case set for trial?” Stuff like that. So, she fired her lawyers and hired me. I got a written sharing agreement between the two parents to divide the proceeds of any compensation equally and prepared the case for trial. We settled it at mediation and the hospital’s lawyers apologized to the parents for the loss of their son. Unfortunately I still had to share part of my fee with the previous lawyers, but got the happy satisfaction of doing a service for both parents and earning a pretty decent fee in the process.

It often happens in a wrongful death claim that some family members hire separate attorneys to make sure their separate interests are represented. The Personal Representative has control of the case and makes the decision whether to accept or reject a settlement offer. If the case is settled, or it is tried and a judgment is collected, a judge has to approve the settlement and distribution of funds. Funeral expenses go to whoever paid the funeral expenses. Medical expenses of the injury and illness are paid. The estate’s attorney fees and expenses are approved and awarded to the lawyers for the estate. If there was conscious pain and suffering, that is distributed according to probate law. The remainder is compensation for the survivors. If they can’t agree on who gets what, the judge will hold a hearing and distribute the money to Bob, Jean’s kids, and Mom according to the evidence about their relationship, grief, and loss of support. Here again, it’s better if everybody agrees, because if they have to hire lawyers due to conflict with each other some of the money will just go to additional attorney fees and everybody will ultimately get less.

I guess I should say a quick word here about probate. Probate is a proceeding to collect the assets, pay the debts, and distribute the remainder of the deceased’s assets. If there’s a will, it generally goes according to the terms of the will. If not, it’s according to the laws of descent and distribution. I mentally checked out of that part of law school, so probably shouldn’t say much more on that subject.

However, if the only reason for doing a probate is to appoint a person to prosecute a wrongful death lawsuit, we often appoint a “Special Administrator” to open a probate for the sole purpose of prosecuting the wrongful death claim. If the person who caused Jean’s wreck also died, Jean’s lawyers can actually appoint somebody of their own choice as Special Administrator of the deceased defendant’s estate in order to have somebody to sue, because you can’t actually sue a dead person and if their family didn’t open a probate you have to do it in order to pursue the claim.

Feelings of loss, pain, and anger run high when we lose someone we love. Tangled relationships can leave a heck of a mess when people pass. In Jean’s case, perhaps her kids and your mom really dislike Bob and don’t think he loved Jean or treated her right – or, that he took Jean away from them and controlled her or used up her money or cheated on her or, you know, whatever. I remember representing the family of a college student who died in a tragic accident caused by a defective dumbwaiter. His sisters and mom hired me. He was estranged from his dad. I had to explain to his sisters and mom that his dad still had a claim, and that he would be entitled to prove his loss and grief even though he hadn’t supported his son or kept in touch with him for quite a few years. It may not seem right that the “deadbeat Dad” had a claim and the sisters did not, but that’s honestly the way the law works.

Sometime in life we’re all going to experience loss. The problem with wisdom is you have to suffer so much to get it. Hiring a lawyer and prosecuting a wrongful death claim is a difficult decision, because prosecution of the case may take a couple of years and I’ve learned that being involved in the lawsuit can actually interfere with the grieving process and prolong it – it keeps the wounds open, so to speak. On the other hand, survivors often believe it is their obligation to their deceased family member to pursue a claim on behalf of the memory and respect they have for the person who died and the responsibility of the party they believe caused the death. I think a lawyer who is consulted about such a case has a responsibility to advise potential clients that these are complex matters, not to be entered into lightly.

But then, in one way or another, all personal injury claims are complex matters not to be entered into lightly. Writing this particular blog has reminded me of many people: the widow whose road-crew husband had been killed by a speeding truck in a construction zone, who was at the scene standing on the road weeping and screaming at passing traffic when I went to photograph and see the scene; my friend Dianne, whose son was killed in a car wreck at the age of 17 the day after Christmas while going to get his family a pizza; Eileen, who died as a result of complications of chemicals injected into her HVAC ducts by an idiot termite treatment company; that poor kid in the hospital ward, already troubled and in psychiatric misery; and others. It’s challenging to care for these people but still maintain sufficient emotional boundaries to be able to be an effective and objective lawyer for those who passed, and those whom they left behind.

If I can be of assistance to you, you are welcome to email me at gregh@fylaw.com.

Should the President Give a Statement to the Special Prosecutor? NO!

Assuming I were counsel to the President, I would advise him not to do it. Why? For the same reasons I recommend and advise ALL my clients not to give statements, not to go to the media, and not to post about their cases or injuries on social media.

Very simply, the more the other side knows about you and how you think, the worse off you are and the better off they are.

Let your lawyers speak for you. Do not try to be your own lawyer. A person who represents himself or herself has a fool for a lawyer.

It’s pretty clear to me that if the Special Prosecutor, Robert Mueller, decides to force the President to testify to a Grand Jury, the President would have to testify to the Grand Jury. In United States v. Nixon, 418 U.S. 683 (1974), the U.S. Supreme Court ruled that President Richard Nixon could not withhold tapes of his conversations with indicted Watergate defendants based on a claim of Executive Privilege. “To read the Art. II powers of the President as providing an absolute privilege as against a subpoena essential to enforcement of criminal statutes on no more than a generalized claim of the public interest in confidentiality of nonmilitary and nondiplomatic discussions would upset the constitutional balance of “a workable government” and gravely impair the role of the courts under Art. III.”

Later, in Clinton v. Jones, 520 U.S. 681, the Supreme Court ruled that the President was subject to legal process for personal acts and allegations against him, and could not claim immunity for personal harms just because he was the President: “[I]t is settled that the Judiciary may severely burden the Executive Branch by reviewing the legality of the President’s official conduct, see e.g., Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, and may direct appropriate process to the President himself, see e.g., United States v. Nixon, 418 U.S. 683. It must follow that the federal courts have power to determine the legality of the President’s unofficial conduct. The reasons for rejecting a categorical rule requiring federal courts to stay private actions during the President’s term apply as well to a rule that would, in petitioner’s words, require a stay “in all but the most exceptional cases.”

So, if former FBI Director Mueller decides to subpoena the President to testify before a Grand Jury, he would ultimately have to appear and testify under oath. The weird part about a Grand Jury is that the witness doesn’t get to have a lawyer in the room to object to questions or cross-examine witnesses. Testifying before a Grand Jury is a dangerous place to be. As Sol Wachtler, at the time the chief judge of New York, famously said: “A good prosecutor could get a grand jury to indict a ham sandwich.” I don’t know if he saw it coming or not, but Judge Wachtler later became a ham sandwich and was, himself, indicted. Anyway, based on pretty clear law I think that the President can be forced to testify to the Grand Jury.  I also think it’s pretty clear that Robert Mueller is a very good prosecutor.  I’m tempted to say something witty about “President Ham Sandwich”, but, maybe later.

Over the last couple of weeks I’ve listened to various experts offer opinions about what the President and his lawyers are up to, and what the Special Prosecutor and his lawyers are up to.  Are they negotiating about obtaining an interview? A deposition?  The scope of the questioning?  Whether the interview or sworn statement would be videotaped?  Where it would occur?  All that kind of stuff.

One of the dumber suggestions I heard a couple of times is that the President’s lawyers should offer and agree to provide him for an interview with the agreement that it is “not under oath”. Their idea is that Mr. Trump is so prone to factual errors that if the FBI interviews him and he makes a mistake of fact he wouldn’t be subject to penalty of perjury.

The problem is that lying to the FBI is, itself, a felony. The Special Prosecutor, as an arm of the Department of Justice, employs FBI agents to interview witnesses.  Lying to a federal investigator is a felony under 8 U.S. Code 1001. “Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully . . .makes any false, fictitious or fraudulent statements or representations. . . .” is subject to imprisonment for up to 5 years. Lying under oath is also a felony, called “perjury”. That may provide for separate penalties, but the point is that even voluntary statements made to federal investigative agents, if intentional and false, are grounds for imprisonment, fines, and, perhaps, impeachment.

I’m trying to totally leave aside the present President’s obvious inability to keep his mouth shut regarding matters in which he should completely keep his mouth shut. This goes back to the basic principle I’ve learned over the years that things my clients say to others, or in recorded statements to insurers, or on social or public media, more often than not hurt their cases. The President is of course in an incredibly scrutinized and public position, but if I were his lawyer I would cringe every time I heard him attack the investigators, assert that the investigation is a witch hunt, and/or accuse prosecutors and investigators of political bias. I would know that the prosecutors and investigators are recording and paying attention to every word, looking for inconsistencies, and applying the lawyer’s art of looking at facts from all possible perspectives, not just the perspective intended by the person making the statement . Far too often, people say things to help their case, that actually seriously hurt their case. Proclaiming your innocence too loudly and too often, after a while, makes a person look guilty. Plus, they tend to change their stories; truth is easier to keep straight than lies.

There are no clear or good answers for Trump and his lawyers if Mueller wants to interview him or subpoena him to testify. The simple question: “Did you fire Jim Comey because of the Russia investigation?” has no good answer. I it’s “yes”, the President admits to obstruction of justice. If it’s “no”, the President contradicts his own previous public statements in an interview, as well as what he told the Russian Ambassador in the Oval Office when he called Comey a “nut case” and said he got rid of him because of the Russia investigation.

So if the President can’t avoid testifying, and could be subject to a felony whether he gives an interview to the Special Counsel or testifies to a grand jury, why do I say I would advise him to NOT give the interview?

Because, two bites out of the apple.

If Mr. Trump gives an interview to the FBI, it will be recorded and he will be reminded that he is voluntarily giving the interview and that he voluntarily agrees for it to be recorded so a transcript can be made. If he makes false statements in the interview, it’s a big problem, but it also leads to a second big problem.

Which is, that the Special Prosecutor could then still subpoena the President to testify to the Grand Jury. If that happens, Trump could be questioned not only from all the public statements he’s made (plus emails, documents, and statements and testimony of other witnesses), but also from his statements made in an interview to the FBI.

And one of the charges brought before the Grand Jury could be Lying to a Federal Investigator, which as we see is a felony in its own right.

If you are the President of the United States and need a good lawyer, don’t call me.  I would have to claim a conflict of interest or something.  If you have been injured and need some help, send me an email.  I’d be bad at representing President Trump, but I’m pretty good at advising and representing injured people.

Premises Liability: When You Get Hurt On Someone Else’s Property

slipandfall

Last year we did a case where a 75 year old woman tripped and fell as she was entering the vestibule leading to the restroom of a grocery store.  She fractured her hip and had surgery to repair the fracture.  Following surgery her bowels got twisted, developing a “volvulus”, a large blockage of the lower intestine.  When doctors did surgery to remove the volvulus, she had complications from anesthesia and became paralyzed and unable to speak.  About six weeks later, she passed.

The fall, which was recorded on a surveillance camera, was caused by a legal defect in the premises:  the absence of a “transition strip” where the linoleum tile in the hallway changed to the ceramic tile in the vestibule.  The ADA (Americans With Disability Act) has accessibility standards which are mandatory for all commercial properties, and are often incorporated into building codes.  These regulations require a sloped transition strip in any change of height between 1/4″ and 1/2″.  A change of height of more than 1/2″ requires a ramp.  Why?  Because those changes of height are a tripping hazard to pedestrians, and not just for disabled or elderly people.  The contractor who re-modeled the store, or its subcontractor, had failed to install this very inexpensive part in the floor, or if they had, it had come out after the remodeling was finished.  We represented the husband and three adult children of the lady who died.  The case settled before trial for a confidential amount.  The money and compensation, no matter how much, are always too little for the loss of a parent, a spouse, a sibling, or a grandparent.

Falls are one of the most common causes of serious injuries that we keep data on.  Data from the CDC (Centers for Disease Control) and other sources estimate that falls cause about 20,000 deaths per year.  Falls are the second-leading cause of death for people over 65.  Falls are the number one cause of visits to hospital emergency rooms in the U.S., with over a million incidents per year.

Sometimes it makes you wonder if we would have been better off if we hadn’t evolved into bipeds, right?

When someone falls due to a defect on somebody else’s property, it’s called a “premises liability” case.  When the defect in the premises is a violation of regulations or statutes, it is also “negligence per se”, that is, negligence as a matter of law.  Premises cases are one of the most difficult of all cases a lawyer can take on.  For someone like me, that’s what makes them fun.

The Basics of Premises Liability Law

Premises liability, like much of our law, has its origins in the common law of England.  It’s a bit more complex than simple negligence.  Negligence is a claim that someone injured somebody else through a failure to exercise ordinary care.  I think of premises liability as a sub-set of negligence law, because it has some particular and very challenging aspects.

First, the duty of a landowner or business proprietor varies according to how the law classifies a person entering the property:  an invitee, a licensee, or a trespasser.  An invitee is on the premises for a business purpose of the landowner/proprietor, typically a customer in a store.  Towards an invitee the business has a duty to exercise care to keep the premises reasonably safe from hazards or defects, and to warn of any defects that are not “open and obvious”.  A licensee is on the premises with permission, but not for business.  A social guest is a licensee.  The owner is required to warn the licensee of dangerous conditions which are known to the owner but not likely to be discovered by the visitor.  A trespasser is someone who is on the land without actual or implied permission.  The only duty owed to a trespasser is to not intentionally or maliciously injure them.  An exception is made for a child trespasser, if the property has an “attractive nuisance” which may cause kids to come on the property, like a dirt pile or swimming pool.  Those should be fenced in, if they are in an area where children are likely to play.

An essential component of premises liabiltiy is the concept of hazard.  In order to have a claim, a person must be injured by something that is illegal or unusually dangerous on the premises.  Liquid on a tile floor, spilled ice, goods that are piled too high and fall off of shelves, unpainted curbs, and holes in parking lots are examples of premises hazards. The way I look at premises cases, the hazard must be something unusual in order to form a basis for liability:  something that a juror would look at and say, “there’s something wrong there, something that shouldn’t be there.”

If there is a hazard, we also have to look at whether the landlord is liable for it.  A store owner can be liable if they knew about the hazard and failed to warn about it; if the hazard had been there long enough that they should have known about it and corrected it; or if they created the hazard.  In the case of the lady who fell and later died, the store owner or their contractor created the hazard, so we didn’t have to prove that they knew about it or should have known about it.  Actual or implied notice of the hazard, however, is an issue we often fight about in premises cases.  Implied notice can be proven through evidence of lax inspection procedures.  These days most retail stores have surveillance cameras throughout the store.  The cameras may have been installed to prevent shoplifting, but they can also provide evidence of how and why a hazard was created that caused an injury, and how long it had been there.

Open and Obvious

One of the doctrines peculiar to premises liability cases is “open and obvious”.  A shopkeeper must repair a defect or clean up a hazard, and warn about it once it becomes aware of it.  This is whey we see the yellow “wet sign” warnings on floors when they are cleaning the floor or servicing the restrooms.  However, the shopkeeper has NO duty to warn about an “open and obvious” defect.  Something that an ordinary person should be able to see and avoid may be classified as “open and obvious”, and therefore not the basis for a claim.  Some of the really weird cases I read decades ago contended that darkness itself is an “open and obvious” condition.  I remember reading a case in which a person walked into a darkened shed, not knowing there was a huge hole dug into the floor of the shed.  The injured person was denied a recovery because it was “open and obvious” that the inside of the shed was pitch black, therefore there was no duty to warn about or correct the hole!  I hope and believe we’ve gotten a bit more enlightened (pardon the pun) since then.  The danger was not darkness.  The danger was a hole in the floor, which was hidden by darkness.

Just because something can be seen, does not mean it is necessarily open and obvious.  Most people do not go around looking down at their feet as they walk.  We scan our environment, and are distracted from “looking where we are going” by other people, advertising signs, store merchandise, and various other distractors.  Usually the question of whether something is obvious is a fact question for a jury to decide; however, in most premises liability cases defendants file a Motion for Summary Judgment claiming that the plaintiff “could have seen the hazard if they were looking”, and therefore “as a matter of law” do not have a case.

Just because the defendant says it, doesn’t necessarily make it so.

Natural conditions

A landlord has no duty to repair natural conditions, such as ice and snow which cause walking surfaces to be slick.  However, if the landlord does something which makes the condition worse, or creates the condition, they can be liable.  In one Oklahoma case, the owner of a business left lawn sprinklers on during a freeze.  Since they had sprayed the water which then turned to ice, they had created the condition and were liable to an injured pedestrian.  In another case decided by our Supreme Court, when the landlord did something which created a black ice condition at the entrance to their building, they were liable for creating an invisible and extremely dangerous condition beyond what nature had done.

Contributory Fault

Since premises liability is a variant of negligence, contributory/comparative fault comes into play.  Usually when somebody falls they feel embarrassed and think it is partly their own fault for not “looking where they were going”.  Usually a jury thinks so too.  In most premises liability cases, if the injured person gets a plaintiff’s verdict the jury also assigns some percentage of fault to the plaintiff.  If the damages are $100,000.00, and the plaintiff is 20% at fault, the verdict is reduced to $80,000.00.  If it’s 50/50, it becomes a $50,000.00 verdict.  But, if it’s more than 50% the fault of the plaintiff, they get zero.  That’s in the Oklahoma statutes, and is why we call our system “modified comparative fault”.

That’s it, folks!

If any of this is interesting to you, shoot me an email and tell me about your problem.  You will always be welcome.  greg@fylaw.com.

 

 

 

Making a Record — the Court Reporter

You’re watching a ball game or a tv show and text is scrolling along at the bottom of the screen, just a few seconds behind the actual action.  There are some misspellings and occasionally a screwed-up word.  If you watch, you’ll see that the words identify the speaker in the conversation.  In a crowded, noisy restaurant; at home with the sound turned down; or if you are hearing-impaired, you can follow the action and discussion on the television.  It’s a little bit like those old Greek or Japanese fantasy/science fiction shows, where everything is a bit out of synch, but still it catches every word of the dialogue.

How does this happen?  Is it new and wonderful voice-recognition technology?  If so, how does the computer tell who is speaking, as well as what they’re saying?

It’s not a computer.  The person who is tracking and writing the dialogue so it can scroll across the screen is a court reporter, also called a stenographer.  A court reporter with a computerized stenotype machine can write over 200 words per minute with accuracy of nearly 99%.

I’m married to one.  Sometimes it’s pretty scary.  You can NOT be stupid and be a court reporter.

For centuries (actually, millennia) transcriptions were done in shorthand.  Cicero’s slave, Marcus Tullius Tiro, invented shorthand transcription in Latin around 63 B.C.  An English shorthand was developed in the 11th century, as a secret language to keep records of various kinds of nefarious and probably dangerous proceedings.  Charles Dickens used shorthand as a law clerk, and then as a free-lance court reporter.  Stenography machines were first developed around 1890.  In the early 20th century court reporters started using recording devices so they could keep an audio record to refer to for accuracy.  IBM attempted to computerize stenographic language-translation machines for the Army in the 1950s.  Then, demand grew for computerized steno machines, leading to the system used today which you have seen in movies, on television, and in the courtroom.  The court reporter sits at a desk with something that looks like a typewriter and takes down the testimony as it is spoken … every word of  the witness, the lawyers, the judge, and in some cases, the jurors.

court-reporters

As you can see, the steno machine is not a full-size typewriter, and these days it is connected to a computer.  The keyboard looks like this:

stebi pad

And the machine looks like this:

steno machine

There’s a particular twist to the court reporters’ skill.  They listen to phonetics, not spelling.  They don’t even really listen for context at the time they are “writing” the transcript.  The steno machine has a small screen that scrolls the transcript in English.  By connecting to his computer, this reporter is also able to see a larger part of the transcript as he is writing the testimony.

With improvement in computers, internet, bandwidth, and communications, court reporters can now provide special services like “real time”, in which a lawyer can see the transcript as it is being written; and “real time remote”, in which a lawyer in a different office or different city can see both the witness and the transcript simultaneously.  Technology also allows a lawyer with an appropriate connection to ask questions in a deposition or courtroom proceeding from somewhere other than the courtroom or deposition site.

Why do we go to all this trouble?  It’s very simple; we use court reporters for all kinds of proceedings so that we can have an accurate record of what was said.  Jury trials, appeal hearings, depositions of witnesses, and administrative hearings all require accurate written transcripts that can be referred to later.

For example, in a civil case, if I take your deposition, I might use the transcript of your deposition testimony to cross-examine you with at trial.  It would go something like this:

“Mr. X., you are saying Y about Z, correct?”  A:  Yes.  “But Sir, would you please read to me from the transcript of your deposition, under oath, on April 18, 2016?”  A:  “At that time I said B about C.”

“Aaah, you said B about C then, but you’re saying Y about Z now, isn’t that correct?”  A:  “Yes, that’s right.”  Or, “I must have been confused” … “I don’t remember.”  “It’s been a long time.”  It gets really bad if you say something like, “I must have been on drugs when I said B about C.”

That’s called impeachment:  confronting a witness with an inconsistent prior statement.  Impeachment is especially effective when it’s recorded in a stenographic transcript, under oath, by a certified court reporter.  There’s probably nothing more exciting and fun for a lawyer than setting, laying, and springing that trap on a witness who’s trying to win his case by being careless with the truth.  Don’t be the witness who says Y about Z after previously testifying to B about C.

Another use for transcripts is appeals.  Appeals are decided based on the “Record on Appeal”, which includes exhibits and transcripts from the trial court.  The appealing party has to pay for the cost of transcription of all parts of the record designated by any party to the case.  If the record is not there for the court to review, the issue it refers to can not be appealed.  A friend of mine won a magnificent victory a year or so ago for some people whose farms and homes were destroyed by a wildfire started by an oilfield pipeline company.  The court reporter lost the entire transcript somehow.  That was a 15 million dollar verdict and weeks of trial work down the drain.  Sucks to be you when that happens.  Sucks to be the court reporter’s malpractice insurer too, I guess.

But fortunately, it’s very rare.  Court reporters are by nature extremely diligent, intelligent, and detail oriented.  I would say they’re OCD, obsessive-compulsive disorder, but like I said my wife is a reporter and she’s likely to read this blog.  So, they’re just OC, not OCD. Right, baby?

Getting back to the nuts and bolts of reporting, court reporters work at least a couple of hours for every hour they put in “writing” the live transcript.  After creating the original and saving it to their computer, they “scope” the job.  The reporter or a hired “scopist” goes through the transcript and puts things in context — lines, paragraphs, interruptions, spelling, and stuff like that.  They’re also checking to see that they used the correct variant of words that sound the same, but are spelled differently and may have substantially different meanings.  Words like where, were, and we’re each have their own individual set of keystrokes.  The modern steno machine has “artificial intelligence” software that recognizes phonetic sounds and is able to string them into words.  Remember, the software doesn’t “type” English; it converts keystrokes into words, and each word has its own unique set of keys.

Transcripts are not exactly cheap.  They charge by the page, double-spaced, 25 lines per page.  Rush jobs (produced in less than a week), extra copies, real-time, and remote real-time all add to the cost.  A reporter will usually write about 250 pages a day in trial, so a one week trial transcript is likely to cost over $5000.00.  This is great when you’re married to the reporter, but not so great when you’re paying the bill for the transcript.

There’s actually a shortage of certified court reporters these days.  It’s one of the secret professions that an intelligent person can break into and make pretty good money.  In Oklahoma, some of our district courts in counties with smaller populations cannot keep reporters on staff, and are trying to fill the gap by hiring reporters on a per diem basis.  Federal court reporters have a pretty nice gig, since they get a decent salary, the opportunity to make extra money on transcripts for appeals, and federal health and retirement benefits.

Court reporters are absolutely essential to the proper functioning of our legal system.  Computerized voice-recognition systems can’t fill the gap, because they don’t have the accuracy, or ability to distinguish different speakers, necessary to create a good transcript.  And besides, at least one unfairly-sentenced defendant had to be happy there was an accurate transcript:

COURT: All right.  Mr. Shaw, let’s have an understanding here.  Listen to me.

DEFENDANT: I brought –-

COURT: I’m asking you to listen to me, and I’m telling you what is going to happen.

DEFENDANT: You’ve already denied me due process of law, sir.

COURT: Get the duct tape out.

(Whereupon, court remained in adjournment.  At which time the Defendant was bound and gagged.)

This was recorded accurately in the transcript in Shaw v. State, 846 S.W.2d 482 (Tex. App.—Houston [14th Dist.] 1993), and therefore was available for review by Texas’s criminal appeals court.

The appellate court held that defendant had been unfairly prejudiced as a result of sitting in front of the jury for the duration of the trial while bound and gagged with duct tape: “Even after considering the appellant’s prior criminal record we find this sentence (99 years in prison) somewhat on the severe end of the spectrum for stealing cartons of cigarettes from a grocery store.”

With which, your honor, I concur.

 

 

 

CONFLICT RESOLUTION

litigation

Mediation and Arbitration
Mediation and arbitration sound like the same thing to many people, but they are actually quite different. They are both used to resolve civil conflicts, but the similarity stops there.

Mediation is relatively new to civil cases, but over the last three decades has been found to be useful for resolving many kinds of conflicts. Mediation is now used in personal injury, business litigation, insurance and insurance bad faith, divorce, probate, and workers compensation cases because it is so successful at helping parties to settle their differences.

Arbitration has been around longer. An arbitrator acts like a judge and renders a decision based on evidence presented during a hearing. In many cases there is a panel of arbitrators, usually three, with one chosen by each party and the third agreed to by the parties to be a “tie-breaker”.  Disputes between unions and employers are often submitted to arbitration. Some insurance contracts, especially uninsured motorist contracts, contain arbitration provisions where the parties can request, but not demand, arbitration rather than submitting their claims to a jury.

Many contracts contain arbitration clauses. One area that has been particularly troubling is nursing home admission agreements, drafted by the nursing home industry, that require complaints about patient care to be submitted to an arbitration panel rather than to the court system. Some states have held that these provisions are unconstitutional or otherwise illegal, because they take away an injured patient’s right to a jury trial against the nursing home.

There is binding arbitration, and non-binding arbitration. If parties submit to binding arbitration, they must accept the decision of the arbitrator or arbitration panel, whether they like it or not. In non-binding arbitration, the arbitrator’s decision is not final. If either party rejects it, they may go to court or other administrative process. Even though the decision isn’t binding, it often gives both parties a neutral way to evaluate their case, and decide if they want to accept the decision or go on to take the risk and expense of further proceedings.

In mediation, parties to a lawsuit or other dispute hire a trained mediator. Usually  the mediator is a lawyer who has some expertise in the relevant area of law and legal practice. I have taken mediator’s training, and occasionally am hired to mediate a personal injury case. I have also represented hundreds of clients in mediation, and almost always recommend going to mediation if there is an opportunity to do so. Since courts usually order it in civil cases, there are lots of opportunities.

In preparation for mediation, lawyers for each party write mediation statements to tell the mediator and the other side about their case. They then meet in a neutral place, such as the mediator’s business offices. Most mediators immediately separate the parties into separate rooms. Studies show that when the parties get together and start stating their cases, they usually alienate each other by “beating their chests”, thus reducing the likelihood of settlement.  To avoid that, the mediator ushers them into separate conference rooms, provides for their comfort, and keeps them apart from each other.

The mediator will take offers and talking points from one party to the other, going back and forth between them. A good mediator is much more than a “water boy”, however. Most often, both sides believe they are right about their cases. If they don’t settle the case, one will win and the other will lose, or the judge and jury will award something in the middle. That “middle” is where cases usually should settle. The mediator’s job is to help each party see the weaknesses in its case, thereby creating the uncertainty which is the reality of the judicial system. If you KNOW you are going to win, why settle? But if you realize that you MIGHT lose, it begins to make more sense to consider compromising the case in order to avoid the risk of having a third party like a jury decide your case.

The mediator is not a judge, and cannot decide the case. Mediators typically do not try to tell either side what their case is worth. As a lawyer representing injured people, my job in mediation is to structure the negotiations so as to get the very best offer possible from the other side. It takes patience and experience to judge where those limits are, because the other side doesn’t always tell the mediator the truth, and usually there is at least some “wiggle room” even in a “take it or leave it” final offer. Once we have that last offer, it is my clients’ decision whether to accept or turn down the offer. It is their case, not mine, thus it is always their decision. I advise; you decide.

I’m a big fan of the mediation process. If a case can be settled reasonably, it saves both parties the expense, time, and uncertainty of trial. The defendant buys my client’s case; my client sells the case to the defendant or defendants. Since litigation expenses usually come out of my clients’ recovery, saving the costs of trial saves them money and frequently gets them more compensation than they could get from a jury even if they got a higher verdict than the settlement amount.

conflict resolution

Statutes of Limitations in Civil Cases in Oklahoma: “S.O.L.”

SOL – Statutes of Limitations in Civil Cases in Oklahoma

Statutes of Limitations are deadlines for filing suit. If you don’t file your lawsuit within the Statute of Limitations for that particular kind of case in that particular venue, you are “S.O.L.” … You all know what that means, right? Isn’t it amazing that this concept, invented in Roman law, and codified in England’s Statutes of Limitations in 1623, has the same exact initials as our American slang: “sh*t out of luck.” History has its odd coincidences, right?

Or maybe it’s fate! Or proof of the power of Schumann Resonances! Or time travel – you know, a Member of the House of Commons in Merrye Old England gets swept up in the space-time continuum, visits Missouri in the early 20th Century, finds a way back home, and thinks to himself: “Hmmm, let’s have a little fun with history here – ah yes, we’ll call them Statutes of Limitations – S.O.L. – ha ha, ho ho, hee hee.”

But, it’s not so funny if you wait too long to go to a lawyer, your case doesn’t get filed on time, and your most excellent and wonderful lawsuit is, well, S.O.L.

The basic idea of Statutes of Limitations is that potential defendants should not have to have potential lawsuits hanging over their heads till death relieves them of their fear. There are some exceptions, in certain kinds of criminal cases. There is no Statute of Limitations for murder. That can hang over your head, and your conscience, forever. Most crimes have defined Statutes of Limitations, which I’m not going to discuss because I don’t do criminal law and don’t know what they are. However, Statutes of Limitations in civil cases are a bit more complex than most people realize, so here is a primer on Limitations in Oklahoma civil cases.

As a predicate, filing a case, and service of process, are two different things. Filing a case preserves the Statute of Limitations. Serving process by serving a Summons and a copy of the Petition (in federal court, the Complaint) give notice to the Defendant that they have been sued. You do NOT have to serve process before the date of the Statute of Limitations; you just have to file the case in court. You then have 180 days to obtain service, or the case will be deemed dismissed unless there is a valid reason you could not obtain service within that time. So, on to the mundane details we go.

Intentional Acts – One Year

In our state the Statute of Limitations for injury due to an intentional act is generally one year. Libel (written defamation) and slander (spoken defamation) must be filed in court on or before one year from the date of the wrongful lying hateful statement that caused you shame, humiliation, emotional injury, loss of reputation, and/or economic harm. Assault (putting a person in fear of an offensive touching) and battery (offensive touching) must be filed within a year of the injury. Actions for malicious prosecution and wrongful imprisonment must also be brought within a year.

Negligence, Wrongful Death, Medical Malpractice, and Product Liability – Two Years

Claims for personal injury must be brought within two years of the date of injury, or of discovery of the injury. A claim for wrongful death must be filed within two years of the date of the death, even if the injury that caused the death occurred more than two years earlier, because the pain, suffering, and medical bills of the deceased are “subsumed” within the wrongful death action. Claims for trespass to real property also have a two year SOL. Product liability (a claim of injury due to an unreasonably dangerous product) and medical malpractice (a claim that a person was injured due to substandard medical care) must be filed within two years. I mention Product liability separately because it is not based on negligence, but rather is “strict liability”. You don’t have to prove that the manufacturer failed to use ordinary care, only that the product was unreasonably dangerous.

Oral or Implied Contract – Three Years

Although many people think a contract must be written to be enforceable, that’s not necessarily true. A written contract in general is merely the evidence to prove a contract. If you and I agree on a buy-sell arrangement, and one of us verbally makes the offer and the other verbally accepts it, a contract is formed (unless it’s a real estate sale, which requires much more than that). An action for damages to enforce that contract must be brought within three years of the time we sat down and made an agreement for you to buy my horse, as long as we were sufficiently specific about the terms such as price, tack, saddle, and lineage papers. There are also contracts that are “implied by law”. For instance, every sale of goods carries with it an implied “warranty of merchantability” – that the product sold is of reasonable quality and fitness for the purpose for which it was intended. Although product liability claims in general must be brought in two years, a claim for injury caused by a defective (non-merchantable) product may be brought within three years if the injured person was the original purchaser of the product.

Written Contract – Five Years

An action for damages due to failure to honor a written contract must be filed five years or less after breach of the agreement. The area of my practice to which this applies is written insurance contracts. If my client is injured and the person who caused it has insufficient liability insurance, there may be a claim against my client’s own insurance policy for additional coverage called “uninsured/underinsured motorist – (UM) coverage. In general, that claim can still be brought up to three years AFTER the personal injury statute of limitations ran. If the insurer fails to honor its obligation of good faith and fair dealing, the “insurance bad faith” claim for damages caused by the insurance company can be brought within five years of the time the insurer failed to honor the written insurance contract.

Homeowners’ Insurance and Fire Loss Claims

Although homeowners’ policies are written contracts, they often limit the time for making and proving up a claim for storm damage, vandalism, theft, or fire loss to one or two years from the date of loss. Despite the state statutes stating that claims on written contracts carry a five-year limitations period, policy time limitations for those types of claims have been upheld by the Oklahoma Supreme Court. On the other hand, if the insurer breaches its duty of good faith in paying the claim, there is still a five-year Statute of Limitations from the date of the company’s wrong-doing, to bring the bad-faith claim against them.

“Tolling” of Statutes of Limitations

A Statute of Limitations is “tolled” during a period of disability which makes it impossible for the injured person to realize they have a claim, or to file a claim. If, for instance, a person is in a coma for six months, their SOL is extended by six months because it begins to run again after they regain consciousness. A case that disturbed me when it came out, 20 years ago, was a claim against a minister alleged to have molested a minor in his congregation many years previously. The young lady, by this time an adult, had a repressed memory, as molestation and rape victims often do. Her lawyer argued that her Statute of Limitations started to run when the memory surfaced during adult counseling. Unfortunately, the Court ruled otherwise. Her repressed memory did not constitute a “period of disability” to toll her Statute of Limitations.

Statutes of Limitations for Children

An injured minor’s Statute of Limitations is one year after the age of majority, so they must file their claim by the time they are nineteen. If a child is almost 18 when injured, they can still take advantage of the 2-year Statute of limitations for negligent injury, since Courts will enforce the longer, rather than the shorter, period of Limitations prescribed by the Statutes.

Discovery Statute of Limitations

Here’s one that can get pretty tricky. Sometimes a person does not know they had something wrong done to them until long after it occurs. For instance, if a physician fails to diagnose cancer, or leaves a sponge in an abdomen, it may not be discovered until months or years later. Another example is toxic injuries, which have latency periods. You may be exposed to a chemical and not realize the chemical injured you until years later when a disease, such as mesothelioma caused by asbestos, is diagnosed. In those cases, the Statute begins to run from the time the person learns they have an injury, and that it was caused by the Defendant.

Limitations for Tort Claims Against Governmental Agencies

Most claims for injury against a state, local, or county government or agency fall within the Governmental Tort Claims Act. These have their own special rules. It works like this. You must give notice of the claim, in writing, to the correct agency within one year of the injury. They then have 90 days to pay, deny, or ignore the claim. If they ignore it, it is “deemed denied”. After a claim is denied or “deemed denied”, you have 180 days to file suit. Calculating the notice dates and filing dates for tort claims is a challenge, but is part of a lawyer’s job when representing a person injured by somebody employed by or acting on behalf of a government.

The Savings Statute

If a case is filed on time, and is dismissed “other than on the merits”, it may be re-filed for up to one year after the date it was dismissed either voluntarily or by the Court. We don’t like to let cases linger around, but there are times when it is in our client’s best interest to wait a while – for instance, to continue investigation, or to determine what the client’s permanent injuries may be. A way to extend the SOL under the “Savings Statute” is to file the case within the original Statute, say two years, and then dismiss it “without prejudice” up to 180 days after that. There is then an additional one year to file the case. In effect, your lawyer can extend the two-year Statute of Limitations to three and a half years, by following that procedure.

And, They Really Mean It!!

Most deadlines in cases can be extended by agreement or by application to the Court. Statutes of Limitations just aren’t that way. Missing a Statute of Limitations is generally considered to be legal malpractice, and can be cause for disciplining a lawyer for failing to provide ethical and competent representation. As you can probably see, not all Limitations periods are cut and dried/black and white. There are situations, particularly with respect to when the injured person learned about the wrong, that the question of when the Statute ran is a fact question for a jury, and can’t be determined as a matter of law by the judge.

Statutes of Limitations, and fear of being “S.O.L.”, are not the only reason to consult a lawyer earlier rather than later. If an injured person contacts me as soon after the injury as possible, I can usually do a much better job of investigating and proving their claim. As a matter of protecting ourselves and exercising good judgment, our firm (and most firms) are reluctant to take a case at the last minute before the Statute of Limitations because we don’t have time to evaluate the case, investigate it properly, and make sure we get it filed in the correct court on time. It’s also true that people trying to deal with an insurance company on their own, and trusting a defendant to “do the right thing”, usually make serious errors like talking too much and/or making offers that really don’t make sense in the context of our judicial system. So, if you have a legal problem, you’re usually far better off to call now, and not wait until the time machine of the legal system bars your claim forever.

As for me, I can be reached at gregh@fylaw.com.


Internationality and Truthiness

 

Internationality and Truthiness

            Yesterday the President said that “Every nation in the world has been taking advantage of us.  We’re going to put a stop to that.” 

            I thought:   “Every nation?  Jeez, aren’t there just a couple of countries that haven’t been mean to us?”

            Like, Haiti.  Really, what have they done to us?  I mean, it’s so hard to really abuse the United States when you have a hurricane every three years that floods your hillside slums in seas of mud and you just wish to hell you could get your kids across the river/bridge/border into the Dominican Republic.  Right?  How did Haiti “take advantage” of the United States?  By accepting our charity and letting our doctors help them through these catastrophes? 

            Cuba.  I’ll give him that one.  Castro refused to sell Cuban cigars to the United States.  To a Republican Senator, that’s gotta be some serious retribution, like the second or third level of Dante’s Inferno.  For decades there has been a complete and utter absence of Cuban cigars in the Senate, except for the ones they smuggled in from Canada.  Castro committed this heartless insult by not violating the US ban on Cuban imports into Estados Unidos.

            Britain has absolutely TAKEN us.  There’s no doubt.  Atlantic partnership, my sodden hairpiece.  Britain colonized us, taxed us, invaded us, burned the White House in 1812, and exported all of those long-haired boppity-boo kid musicians who got to play on the Ed Sullivan Show.  They took our beautiful P-51 Mustang and put a Rolls Royce Merlin V-12 in it, just to show us up ( and turn it into the greatest fighter plane of World War II).  Every Jaguar ever made broke down and was incredibly expensive to fix. They joined the EU, and then they Brexited.  Plus, they have a Queen.  And, she’s like 112 years old and still knows what the hell she’s doing, unlike our Head of State.  (Yes, future professors of political science, the President of the US and the Queen of England are both “Heads of State”.)

            But, Gambia?  South Africa?  Brazil?  How can Brazil take advantage of us?  Most of you who are reading this, just like the President, don’t even know where The Gambia is, much less that they just replaced a torturing dictator with a former waiter who lived in Britain and saved somebody from choking or something.  (It’s in West Africa, by the way, for all you future geography professors.) 

            The trade balance between the US and The Gambia is … wait for it … $298,000.00 in imports, and $42,000,000.00 in exports … a net trade surplus of over $41 million dollars that we sell to Gambia over what we buy from them.  Way to take advantage or poor little America, you Big Dog of West Africa!

            Or, Haiti! … We import about $1.2 billion from them, and export about $980,000,000.00, for a net trade surplus of $200 million and change.  It made me wonder, so poor and all, how Haiti could even afford to buy over a billion dollars of American made goods.  But, they do.

            I think Iraq has taken CRAZY advantage of us.  We blew up their country, and they didn’t give us their oil.  Ingrates.  Ungrateful ingrates.  Completely thoughtless rude unappreciative oil-pumping ingrates.

            Germany, Japan, France, Italy, Belgium, the Netherlands:  We gave them the Marshall Plan.  What did they give us back?  France kicked our troops out of the country, just 15 years after we liberated them from the Nazis.  Germany and Japan built cars that were better than ours.  Italy kept the Pope and changed governments every six months.  Netherlands legalized dope and put out the red lights for our guys stationed over there.  How ya gonna keep em down on the farm after they see that shit?  Seriously?  THANKS, NETHERLANDS!! … You suck almost as bad as DENMARK!!

            India banned Coca-cola and stole all the robo-calling jobs, ever, which were ever created in the whole freaking world. “Hello?  Sir?  This is Anthony calling from United Canadian Pharmacy about your prescription. … “

            No!  You’re NOT Anthony.  You are NOT calling from Vancouver BC.  You are, sir, FAKE NEWS and ALTERNATIVE FACTS.         And don’t call back again until I’m out of Cialis.

            I read today that a peace demonstration in Germany in 1932 drew 600,000 people.  Yes, 600,000 Germans demonstrated for peace the year before Hitler took power.  After the casualties of World War I, the German people had a “pathological fear of war.”  Sir Ian Kershaw, British historian,  writes:

Where Hitler pulled a masterstroke was in persuading them for years that he was striving for peace, not war, that rearmament was the best way to secure German defence, and that he wanted no more than ‘equal rights’ with the western powers in terms of military strength.

            Where have you heard that before?  “Peace through strength.”  Lately, we’ve been hearing:  “I’m gonna re-build our military.  We’re gonna have the most fantastic, the most beautiful, the most awesome military.  Other countries are not going to dare to oppose us.”

            Guess what, they’re already scared.  We are, truly, the world’s only superpower.  We have the most incredible war-fighting capability ever created.  We can strike anywhere, any time, any place in the world with anything from smart missiles launched from drones to sub-launched ICBMs sufficient to blast us all to Alpha Centaure.

            But contrary to the President’s assertion, it appears there are quite a few nations that have not figured out how to “take advantage of us” in trade and job creation.

            Qatar:  Qatar imports $4.9 billion from the US and exports $1.1, for a net trade surplus with Qatar of about $3.8 billion.

            Saudi Arabia?  We have over a billion dollar trade surplus with the oil kingdom.  Check that?  Fo’ sho’?  Yes, we sell Saudi Arabia more goods and services than the value of the oil and other products we buy from them.

            Kazakhstan buys nearly $400 million more from us than we do from them.  Trade surplus, baby!!

            Believe it or not, we have a small trade surplus with Iran!  Our surplus with Hong Kong is almost $40 billion.  Most of the Asian-Pacific rim is killing us in this respect, but our trade surplus with UAE (United Arab Emirates) is $20 billion.

            Is Trinidad and Tobago taking advantage of us?  Absolutely.  They have beaches nonpareil.  But, they buy more of our stuff than they sell to us, even after American tourists flood their duty-free shops and buy emeralds and rubies that they, in turn, imported from Myanmar, Tanzania, and Sri Lanka (“the jewel of the Indian Ocean”, producing more than fifty varieties of gemstones).

Our trade surplus with the Netherlands is over $25 billion a year.  Here’s a list of their top ten imports from the US: 

  1. Medical, technical equipment: $6.5 billion

  2.  Machinery:  $5.7 billion

  3.  Electronic equipment:  $4.8 billion

  4.  pharmaceuticals:  $4.3 billion

  5.  Oil:  $3.3 billion

 6.  Aircraft, spacecraft:  $2.1 billion

 7.  Organic chemicals:  $1.6 billion

 8.  Plastics:  $1.1 billion

 9.  Oil seed:  $1.1 billion

10.  Other chemical goods, $877.2 million

If those sneaky Dutch don’t stop taking advantage of us this way they’re going to have to start importing KY Jelly by the shipload.

There are 22 nations we trade with whose names start with the letter “M”.  We have surpluses with 16 of them.  

Israel is a thief of our money.  They sell us $10 billion more than we sell them, even though we give/sell/finance their armed forces.  But, we have a $2 billion surplus with Egypt, despite all the prunes. Olives, and dates we buy from them.  They can pound sand.  They’ve got pyramids, ancient aliens, secret tombs, the Nile river, the Aswan Dam, runestones, and the the  Muslim Brotherhood.  But, they buy our stuff:    Trade Surplus, Baby! and an absolute failure on their part to “take advantage” of the good ol’ US of A.  Egypt? Taking advantage of the U.S.? Ha! Baloney and bullfeathers.

What the heck do you think we’re selling to all those Middle Eastern countries, anyway?  What are our primary exports to Turkey, Iraq, Saudi Arabia, UAE, Israel, and Egypt?  C’mon now, seriously, what does the US make that every nation in the Middle East wants?  Still guessing?  Think hard.  I’ll give you a hint, it’s not oil; they have plenty   of that.  (Okay, all you future generals: it’s — shhhh — weapons … guns and ammo, airplanes, missiles, comms, all that kinda stuff.  The United States exports one third of all the arms sold on the import-export markets, globally, every year.  Take advantage of THAT, Suckahs!)

Sure there are nations that “take advantage of us”, if that means they sell us more goods and services than we sell them.  But, we set it up that way.  We’re a “consumer society”, which means we borrow money to buy things and then borrow more money to buy more things.  By its very nature, a consumer-driven economy is going to run some big trade deficits, because we purchase manufactured goods from other countries, and manufactured goods are more expensive than raw materials.  For all you economics gurus, that’s because labor and capital turn raw materials into manufactured goods.    

There was Pax Romana; Pax Britannia; and now Pax Americana:  “the American Peace”.  Truman called the Korean War a “police action”, which made us the world’s policeman.  We have allies, alliances, relationships, treaties, trade agreements, and friends to help us.  Not “every nation in the world” takes advantage of the United States.  

Historically, we’ve done pretty well at taking advantage of others.  Our treaties with the tribes really turned out pretty well, at least until they started taking that word “sovereignty” seriously.  I’m pretty sure Mexico would build Trump’s Wall on their own dime if we gave them Texas, California, New Mexico, and Arizona back.  France would probably take the “Louisiana Purchase” off our hands, especially now that we’re completing the pipelines down to N’awlins.  Plus they’d get most of the Mississippi Valley and the Wide Missouri.  At the time, of course, most Americans thought the Louisiana Purchase was a profligate example of being taken advantage of by Napoleon.  Darn that spendy liberal Thomas Jefferson, anyway.

I have no doubt the Russians would like to push the “Re-Set Button” on Seward’s Folly.  But then, they didn’t have the clear-eyed vision of Sarah Palin.  She can see Russia from Alaska, but the Russians couldn’t see Alaska from Siberia back in 1867.  There was too much fog, and global warming hadn’t properly set in yet.  Of course, right after he signed off on buying Alaska,  Andrew Johnson got impeached.  I’m just sayin’. 

Wouldn’t you like to know why we have a $745 million trade deficit with Estonia?  What the hell can Estonia make that we would buy that much of?  Okay, services and goods:  phones, communication equipment, IT stuff … like that. (For all you officer candidates and future State Department types, Estonia is one of the Baltic States, up above Germany and Poland, left of Russia, and almost all its Jews were killed in World War II.)  

Still, the President’s got a point; if Estonia can beat us, anybody can beat us.

I almost forgot about Latin America.  Mexico’s a done deal.  They won’t build the wall, they have gangs, and our trade deficit with them is YUGE … not even counting the drugs that come this way or the guns that go that way.  El Salvador, Honduras, Guatemala, Venezuela, Brazil — let’s just say they’ve got issues.  Plus, the President of Venezuela drones on and on and on and on and on while his people starve to death and kids can’t get medicine.  They can’t take advantage of themselves, much less the USA.

Australia is doing a horrible job of taking advantage of us.  Really bad.  A complete and total disaster.  Absolute bugger all.  Our trade surplus with Australia is over $12 billion a year.  But then, perhaps trade balance is not the one and only measure of whether another nation is “taking advantage of us.”  

I just find it so paranoid and devastatingly imbecilic for the President of the most powerful and wonderful nation ever in the history of the world to whine about inequity and unfairness of the whole world and every nation in it towards the United States.  

Really?  We invaded Iraq in 2003, got Britain and a few others to give away some of their young men, blew the country up, and still today, 14 years later, they have a suicide bomb or a car bomb that kills dozens of people almost every single day in Baghdad.  We had one of those here in OKC and it changed our collective urban psyche instantly and forever.  In Baghdad, they have a Murrah Building almost every single day.  Boom.  There goes another 33 Shia; or Sunni or Sufi or Kurds or Christians … Some kids, some parents, some amputees, some parts blown off.

And then they hear our President say they cannot come to our country, and we should have taken their oil while we were there.  

Those sneaky rotten lying cheating Iraqis!  They were so ungrateful they didn’t just give us their oil to pay us for coming to save them.  They’re worse than the Congolese who didn’t appreciate King Leopold II, right?  

The wonderful thing about Trump is, he’s getting us to watch the news and pay attention because he loves to be the star of the show.  Every time he accuses CNN of being fake news, people start watching Jake Tapper and both Trump’s and Tapper’s ratings go up.  When the CBS news anchor, Scott Pelley, says “It’s been an interesting day of alternative facts in the Trump administration”, the media hones and sharpens the sword that is the word of fact-finding investigative journalism, a lost art which appears to be raising its head again, and just in time we hope to freaking God.  

Other administrations mostly shaded the truth with spin.  The Trump administration creates its own truthy reality every day, every hour, every minute, every tweet.

We are so big, so powerful, so mighty, so strong, so Excellent, so fortunate to be Americans at the apex of our national glory.

We are not a little tiny whining Gollum who sees only evil, fears all others, is ignorant of everything outside of his dark tweeting cave of a hidey hole and afraid to share with others because they will take advantage of him.

Or, are we?

 

 

trump-befuddled

TBI: Traumatic Brain Injury

Traumatic Brain Injury.  T.B.I.  Closed Head Injury.  Concussion.  Coup-contra coup.

Basically, they all stand for the same thing:  an injury to the brain of the human being, with or without a skull fracture.  TBI is sometimes called the “most under-diagnosed injury in America”, because brain injuries most often cannot be seen on images like MRIs, x-rays, or CT scans.  TBI has been in the news a lot more over the last ten years or so because of two big stories:  1)  veterans of the wars in Afghanistan and Iraq coming home with post-concussion symptoms after being hit by shock/blast waves from IEDs; and 2) research into NFL athletes who have had multiple concussions playing football.  But, most often, you or a doctor still cannot “see” a brain injury the way you can “see” a fracture, a tumor, or a damaged internal organ.  If you or a family member have had a traumatic injury to the brain, though, you’re likely to be living with some pretty nasty consequences.

Image result for tbi

Causes of Closed-head Brain Injuries

The skull, and a fluid-filled lining of the skull called the meninges, protect the brain from infection and from trauma.  But, when subjected to a blow to the head, or sudden acceleration/deceleration, the brain bounces off the inside of the skull.  This can create a bruise to the brain (contusion), or bleeding (hemorrhage/hematoma).  These can both be seen with a CT scan (computerized tomography) or MRI (magnetic resonance imaging).

More subtle injuries, however, are invisible to these types of imaging.  We all have neuronal axons connecting the nerve cells in our brains.  They can be quite long, but are typically only about 1 micron (.001 millimeter) in diameter.  They can only be seen, therefore, microscopically, and we don’t have a way to visualize individual nerve cells or their connecting axons in a live person with today’s imaging techniques.

So, suppose you’re driving in a car and you get hit from behind.  Your head, at first, remains where it was when your car was hit.  Then, as the car is jammed forward, your neck and head snap back relative to the interior of the car.  Next, your head and neck whip forward, which is why people in car wrecks get “whiplash” injuries.

But, it’s also why they get TBI.  It’s called “coup-contrecoup”.  Here’s an illustration:

Image result for coup contrecoup whiplash

When this occurs, the neuronal axons that connect memory cells, autonomic function centers, and the various lobes and centers of the brain to one another are torn or stretched, damaging the normal interconnectivity of the human brain.

Here’s what that looks like in a microscopic pathology slide — normal brain cell and axons on the left, damaged cell and axons on the right:

You don’t have to lose consciousness to have TBI.  You do not need to have amnesia of the incident to have TBI.  You do not have to have a brain bleed or bruise to have TBI.  What causes TBI is trauma:  a sudden shock, blow, or acceleration/deceleration force to the head, damaging and changing the function of the brain which is the center and soul of the human being.

Signs and Symptoms of TBI

Closed head injuries cause both physical and psychological symptoms.  Some of the most common ones are

  • unusual, persistent headaches
  • daytime drowsiness/sleepiness
  • dizziness, nausea, and vertigo
  • loss of coordination, especially fine motor coordination
  • rapid mood swings
  • short-term memory loss
  • word-finding difficulty (aphasia)
  • depression
  • PTSD

In more severe cases TBI can cause personality changes, loss of reasoning ability, decreased intelligence, and inability to administer to one’s self-care needs.  A particularly tragic case was a young client who was injured in a head-on crash on the scenic highway that winds through the Wichita Mountains Wildlife Preserve.  She was 19 years old, a straight A student in college, and planning to be a medical doctor.  In addition to severe orthopedic injuries, she had a brain injury.  She lost about 20 points of IQ, had to be taught language and reading all over again, and, of course, had to modify her chosen career path significantly.  Another client’s personality was so altered that his wife said it was basically like learning to live with an entirely different person who still looked like the same person.  A less-severely injured client, a young man studying animal husbandry at a Big 12 college on a football scholarship, had a closed-head injury in a car wreck that left him with migraines so severe that all he could do when one hit was to lie in bed with the lights out, the drapes closed, in total silence until the migraine went away.

I try to avoid making psychological injury claims for my clients, because in litigation that opens up their prior psychological history, including prior psychological trauma.  Fill in the blanks, or not, as you will, because all of us have had some mental trauma somewhere along the way.  However, known sequelae of brain injury include psychological symptoms.  Many of our troops coming back from war have flashbacks, nightmares, depression, and adaptation disorders.  Rape victims and sexual abuse victims usually have similar symptoms.  Similarly, it is not infrequent that people in nasty wrecks have flashbacks, fear of driving, and nervous, fearful reactions when they are on the road and confronted with situations that resemble what occurred when they got injured.

Diagnosis and Treatment, and proof

How do you diagnose an “invisible injury”?  At the Emergency Room, if you are AOx3 (alert and oriented times three, meaning you know the date, the city, and the name of the President), you’re probably not going to be diagnosed with a head injury.  If your PCP suspects head injury, he may refer you to a neurologist (specialist in diseases and injuries of the nervous system).  The “neuro” may order an MRI, or referral to a neuropsychologist/neuropsychiatrist.  A “neuropsych” will conduct a series of tests including psychological testing (MMPI and others), IQ, memory tests, fine-motor testing, balance and coordination testing, to evaluate your mental and neurological health compared to various norms.  Specific responses to certain kinds of stimuli and tests help to infer whether you have injury to the brain, and if so, to what parts of the brain.

In 1997 we were in trial in federal court in a case where my client, a very precise and accurate bookkeeper, had a “mild organic brain injury” caused by a chemical exposure.  On the stand, when I asked him his daughter’s phone number (he called her multiple times every day), Carl’s face worked into spasms of frustration when he repeatedly tried, and could not remember, his own daughter’s phone number.  A neuropsychologist testified that he had tested Carl, and concluded he had brain damage including short term memory loss.  On cross-examination, the defense asked whether Dr. Whatley had failed to take into account the medication effects of some prescriptions my client took.  I’ll never forget Dr. Whatley’s response:  “No sir, no sir, no sir, nor sir!  I’m so very sorry to say it, but Carl L. has organic brain injury; it will never heal, and he will never be the same.”

There is a Department of Defense Social Media page called TBI:  “To Be Improved”.  It’s written by a veteran who suffered TBI from an IED in Iraq.  Cognitive impairment and other issues caused by TBI typically improve for about a year, but after that, the injured person usually needs to plan on making adjustments and changes to help adapt to and deal with the injury.  You have to carry a notepad around with you to keep track of your appointments; or where you put your keys; or your address; or what you went into the kitchen for.

Come to think of it, I KNOW I came into this office a couple of hours ago to do some kind of errand.  Now, what was it?

Image result for forgetfulness

Anyway, I’ve really enjoyed writing this column/blog on this chilly cloudy day in central Oklahoma.  If I can help you, send me a message and I’ll get back to you ASAP.  ghaubrich3323@gmail.com or gregh@fylaw.com

 

 

A Few Reasons NOT to Handle Your Own Injury Case

Right now I’m working on a personal injury case where a couple got rear-ended.  They, and their passenger, were injured.  One of my clients has two herniated discs is his low back, which is a serious and very painful permanent injury.  Initially, they tried to negotiate and handle the case themselves, because they thought the liability insurance company would “do the right thing”.

Not so much.  They got frustrated and came to me a year later, after really mis-handling their own claim.  Now, about another year later, I’ve about got the mess they created straightened out and am able to reach a settlement which more closely resembles reasonable compensation.

So, Here are a few reasons to at least consult a lawyer immediately after getting injured, and BEFORE talking to an insurance liability adjuster.

1.  You don’t know how to put a liability insurance claim together.

Insurance adjusters consider “specials” — special damages — more than anything else.  “Specials” are your medical bills and lost income records.  There are very specific and effective ways to compile and send them to an adjuster which will improve the value of your case.  Giving the adjuster an unlimited medical authorization and trusting her to get the bills and records gives the insurance company carte blanche to review ALL of your medical history, and virtually ensures that she will not see all of your medical records, bills, or lost income records.  Medical records, medical bills, photos of the scene, photos of injuries, lost income reports, medical reports, anatomical diagrams, and definitions of medical terms are just a part of effectively communicating the severity and costs of an injury.

2.  You don’t know how to evaluate the worth of your claim.

Liability claims are evaluated according to jury verdicts in similar cases.  We get a publication every two months (and so do the insurance companies) that tell us every verdict in federal and state court in Oklahoma along with a short synopsis of the case.  Plus, we have represented thousands of injured people and tried LOTS of jury cases, so we can reasonably estimate the value of your case.  You, on the other hand, only have one case plus some information from Uncle George who heard that his cousin Susan got X amount and all she had was a sprained neck.  Or, you rely on the internet to help you figure out what’s reasonable.  You trying to negotiate an insurance claim on your own would be like me trying to coach the Oklahoma Sooners football team.  I know we all think we could do a better job than Coach Stoops, but I guarantee he knows TONS more about football and football players than you or me.

3.  You are virtually guaranteed to say something that the insurance company will use against you.

Whenever someone tries to handle their own claim they make statements to insurance adjusters.  Usually they think they are helping their case.  BUT, “anything you say can and will be used against you.”  One of the things we tell our clients in our first meetings is to NOT say anything about their case to anybody … and ESPECIALLY not on social media.  Even if your Facebook is set to “private”, it is usually retrievable and discoverable if you ever get into litigation.  In general, the more information the other side has about you, the better prepared they are going to be to defend, rather than pay fair value for, your case.

4.  You do not know which insurance coverages you have that will help you.

In addition to the other party’s liability coverage, you may have medical payments coverage or uninsured/underinsured motorist coverage to assist you in getting more reasonable compensation.  I’m commonly asked:  “But why should my insurance company have to pay, when it was that other guy’s fault?”  The answer is that you paid premiums to have additional coverage in case that other guy didn’t have enough liability insurance to cover your claim.  And, your insurer is forbidden by law from targeting you for a rate increase for making a claim in a case in which you were not at fault.

5.  You may destroy the real value of your claim by settling it without knowing your options.

Did you know that if you settle with a driver who was on the job for his employer, that you just released any claim you might have against the employer for the actions of is employee?  Or, did you realize that if you accept an offer from a liability insurer and give them a release, you have destroyed any chance you have of making a claim on your underinsured motorist coverage?  There are very specific rules in place that govern UM coverage and how to settle a liability claim for liability policy limits, but still being able to proceed with your UM claim.  It really takes a lawyer to make that process work.

Another tactic that can victimize you:  we frequently see cases in which an injured person has settled a claim early for property damage, incurred medical bills, and a small payment, but realizes later that they are more seriously injured than they thought.  In almost all of those cases we can do nothing to help them, because they have already signed a “Release of All Claims” which is an enforceable contract by which they sold their claim for far less than its real value.

6.  But, not every case requires a lawyer

Just because you’ve been hurt, doesn’t mean you have a case.  Even if it is valid, it may be something you can handle yourself, with a little informal guidance and advice.  One of our ethical obligations when a client calls us is to help them evaluate whether they really need a lawyer or not.  Personally, I will not take your case unless I think I can do you some good over and above what you could do on your own.

So, if you think I may be able to help you, use the contact information down below, and I’ll look forward to hearing from you.

Yours, Greg

The Challenge of Getting Good Medical Care After an Injury

Screech!!!  Boom!!  Crash!!

You sit there stunned.  You didn’t even know it had deployed but there is an acrid smell of dust in the air and your airbag is hanging off your steering wheel like a limp bag.  You don’t realize it but your adrenaline is pumping and you may be going into shock … or shaking … or just wondering what the heck just happened?

You go to the emergency room.  They take a few x-rays, possibly some CT scans, and send you home with instructions to fill some prescriptions and see your family physician if you experience x, y, or z in the next few days.

The next morning you can barely get out of bed.  You hurt everywhere — your head, your ears, your neck, your back, your legs, your toes.  You’ve got pain in x, y, and z and some places they didn’t mention at the E.R.  Maybe in some places you didn’t even know you had …

So you call your family doctor, someone you’ve gone to for years, and tell them you need an appointment.  Their response?  “We don’t treat liability accidents.”  That’s right, your family doctor will not see you because you have been hurt by someone else.  Fact is, they don’t want to deal with the lawyers, the liability insurance companies, the health insurance subrogation (repayment) issues, and all the stuff that goes along with medical care after a wreck or other injury.

Often, the E.R. will have recommended that you go to an “Accident Treatment” place, or an orthopedic surgeon, if your symptoms persist.  But how do you choose an orthopedic surgeon?  How do you know one of these doctors’ offices that advertises for accident victims is a good place to get treatment?  And how to you find a medical provider if you don’t have health insurance?

Medical Liens

If a physician or hospital provides you medical care in a liability case, they can file a medical lien.  The lien requires an insurance company paying a claim to put the medical provider on the check.  The medical lien overrides your right to compensation, but it also provides you access to medical care because the provider knows it will get paid if you recover compensation.  Many providers prefer this to taking your health insurance.  If they recover on their lien out of your settlement, they get paid all or almost all of their charges.  If they accept your medical insurance, they are limited to provider contracts which limit their reimbursement typically to less than half of their retail charges.

Adequacy of Insurance

Before medical providers will treat you, they usually want to know that they are going to get paid.  An exception is the University of Oklahoma Medical Center, which is a trauma center but is also a state hospital required to extend medical care to patients that could not obtain it elsewhere.  Sources of recovery, other than your health insurance, are the liability insurance of the person or company that hurt you; your own medical payments coverage, and uninsured/underinsured motorist coverage.  Providers contact liability companies and inquire whether they are “accepting liability”.  If they do not, and if you do not have health insurance, med-pay, or UM, you are going to have a VERY difficult time obtaining adequate medical care.

Accident Treatment Centers

You have seen ads for medical providers who cater to injury victims.  Broadway Clinic.  Brooks Clinic.  Accident Care and Treatment Center.  In my experience they provide very good care to people with soft tissue injuries, like whiplash.  They usually have a combination of physical therapy and chiropractic care which is very effective, but also expensive.  Liability insurance adjusters think these clinics overcharge, and discount a lot of their bills.  Also, they will not take your health insurance, because they would rather recover on their medical lien.  But the most important thing is to get medical care and get well.

Attorney Referrals

Your lawyer can often assist you in obtaining good medical care.  At Foshee & Yaffe, we have excellent relationships with first-rate physicians in many fields, including orthopedics, neurology, neurosurgery, and physical therapy.  We never encourage you to “run up” medical bills; in fact, that is counter-productive.  On the other hand, we want to help you get complete diagnoses of all of your injuries, and get therapy to help you get better.  If your lawyer can help you get good medical care, either on a “lien basis” or using your health insurance, you are likely going to get better compensation as well as a better physical outcome. 

As I always say to my clients, and I mean it, I would rather you not have a “good case”, because if it’s that good it means you were hurt really badly.  We prefer you to get better, but also to document and prove all of your injuries in a way that gives you more compensation for what somebody else did to you.