Insurance Coverage For Hit and Run Collisions

Here’s a shocker … people don’t always take responsibility for the things they do that hurt other people. A few years ago I accidentally ran a red light and caused a collision. I was pretty sure the other guy was injured. I called my insurance company and told them what happened. The lady taking the claim report asked me if it was my fault and I said “Yes”.

I’ll never forget her next words: “You’re the first one all week.”

In other words, the first one who reported the collision and admitted liability.

One way to avoid admitting liability is to say it wasn’t your fault. Another, is to leave the scene of the accident.

hit and run movie poster

Penalties for Hit and Run

Oklahoma has some significant penalties to discourage people from leaving the scene of an accident, especially one in which someone is injured or killed. Intentionally leaving an injury/death scene is a felony and requires revocation of the offender’s driver’s license. 47 O.S. §10-102. Leaving the scene of a collision which results in property damage is a misdemeanor; the person owning the damaged property is entitled to receive three times the value of the loss. 47 O.@.§10-103.

Despite the penalties, people still leave the scene. Who knows why? Maybe they have a warrant out, or drugs in the car. Maybe they’re scared of police. Maybe they don’t have insurance and are afraid of the consequences. Maybe they’ve been drinking. Or maybe, as in “Analyze This”, they have a body in the trunk.

analyze this

Once we had a case where a guy had been drinking and rear-ended out client on the highway. He left the scene after leaving his name, number, and address, and hurried home to drink some more as fast as he could to give himself a really shabby alibi that he hadn’t been drinking and driving — he was so upset at having a wreck that he had to hurry home and pour a couple stiff ones.

Sometimes hit and run drivers get found; sometimes they don’t. If they are found, sometimes they have liability insurance, and sometimes they don’t. My guess is that drivers who leave the scene are less likely to have insurance than those who stay for the police investigation.  Let’s call that an “educated guess”.

Collision coverage for property damage from hit and run

Collision coverage covers damage to your vehicle no matter who was at fault in a wreck. If the other person is identified, and has liability coverage, you usually want your damage paid by their insurance company because there’s no deductible. But, one of the things collision coverage is useful for is when your car is damaged or destroyed by a hit and run driver. Your insurance company is obliged to cover that loss, less your deductible, including if the damage is caused by a hit and run driver.  By state law, they cannot target you for a rate increase for making a claim in which you were not at fault, so there’s no penalty for using your own insurance policy.  After all, that’s you paid your premiums for, right?

hitting-a-parked-car

Many people stop carrying “full coverage”, which includes comprehensive and collision coverage, when they don’t have a loan on their vehicle and therefore aren’t required to in order to provide security to their lender. However, if your car is worth more than a few thousand dollars, you may want to keep your collision coverage so that if your car is hit by an uninsured or hit and run driver, you’ll be able to afford repairs or get a replacement vehicle if yours is totaled.

The related coverage, “comprehensive” coverage, covers you for theft of your vehicle, theft of property from your vehicle, acts of vandalism like slashing your tires or “keying” your paint, or acts of nature like hail or flood damage.

Coverage for your injuries caused by a hit and run driver

Uninsured motorist coverage is your personal injury coverage if you are hurt by a hit and run driver. By state statute and insurance policy language, UM coverage defines hit and run as being an injury caused by an uninsured driver. I had a call today and am meeting a new client tomorrow who was broad-sided by a hit and run driver. Perhaps that driver will be found; a couple of witnesses stayed at the scene and gave the police some information; and there’s always the possibility of a surveillance camera catching the perpetrator.

But I know that I’m going to be able to assist this client because she has uninsured motorist coverage. Even better, she has more than just minimum limits, so if her injuries are more serious than a $25,000.00 claim, there just might be adequate coverage to get her some reasonable compensation.

Vehicle-pedestrian injuries are sometimes even worse. When you’re walking across the street, or on the sidewalk, you don’t have the protection of the metal and safety systems of your vehicle to protect you. In a contest between the car and the person, usually the person comes out worse. If that driver leaves the scene, your uninsured motorist coverage will cover you even though you weren’t in your car, because UM coverage goes with the person, not the vehicle.

School Crossing Guards in Sunset District | September 23, 2016

And, it covers your family too. UM coverage provides protection for the named insurance and any relative living in the household (with a few exceptions that are kind of technical). So, if your child is in the school crosswalk and a driver comes through and hits her, your UM coverage will provide some personal injury compensation for her injuries.

By state law, insurance companies are required to offer you UM coverage up to the amounts of the liability coverage you select. You have three choices: 1) take the coverage; 2) take the coverage but at the lower limits ($25,000.00 per person, $50,000.00 per accident); or 3) reject the coverage.

I don’t care WHAT your insurance agent tells you about why you don’t need UM coverage. If they tell you that, get another agent because this one doesn’t know what the heck they are talking about and does not have your interests at heart.

No, I am not an insurance salesman. I am a personal injury trial lawyer. My job is to get you as much compensation for your injuries as I can within our system of justice and insurance law. If you come to me and got hit by a driver who left the scene, and you don’t have collision coverage for your vehicle or uninsured motorist coverage for your injuries, I’m probably going to have to tell you “I’m sorry, but I can’t help you.”

And honestly, I hate saying that to people who were injured by others.

If you have a question or need some help, shoot me an email at gregh@fylaw.com, or call our firm, Foshee & Yaffe at 405 632-6668 and ask for Greg.

On Memorial Day and Heroism

vietnam wall

We remember the fallen
We think of the wounded, the scarred, the crippled
We call it a sacrifice
We visit the graves
We call them “fallen heroes”

We play Taps, say some words of honor and remembrance, and fire rifle salutes. In 1971 and 1972, I played Taps for Marines and sailors who were buried in the cemetery in Norfolk during the Vietnam War. I played Taps for my grandfather, who was gassed in France and lived through it; and for my dad, who was a veteran and proud of his service.

But what IS a hero?
Are you a hero solely because you served?

No. I was a navy musician. Not precisely a combat hero.

Ninety percent of those who went to Vietnam never saw combat.
Some who were NOT combatants were, nonetheless, killed in various miserable ways, wounded mentally and/or physically.

The injuries today, besides the deaths and physical wounds, are so intensely psychological.

People come back from deployments and are honored: “Thank you for your service”, which is a WHOLE lot better than coming back from Vietnam and being called a “baby killer”.

But combat veterans live in a state of hyper-alertness long after the deployment is over and perhaps up until the next deployment, when it starts all over again. If they have PTSD, they get triggered and are suddenly re-living the experience. The mother of a Vietnam Marine vet told me she heard a noise in her kitchen, came downstairs, and there was Eddie, in the dark, crouched and silent, stalking the Viet Cong and whispering to his buddies. Another friend, a Vietnam Seal, was in a bar and got triggered. When he came back to the present he was beating a guy on the floor into a bloody pulp, having been, in his mind, in a hand-to-hand death struggle in the Big Green.

I have seen them cry. I have listened and heard their stories. I have read about war and tried to understand what people go through and how they cope and adapt to it. But, it is incomprehensible perhaps even to those who fight and live through it.

We call them all fallen heroes, and we should honor their loss and sacrifice, and think of their families.

The risk is, that by tying their service and sacrifice to the flag, “My country right or wrong”, we glorify war.

There are no “winners” in war. Most often, when people start a war, they think they know what the outcome will be – and almost always, it’s different than what they thought.

In World War I Britain, France, Germany, Austria, and Russia all thought there would be a quick, short, sharp, glorious war in which each of them thought God was on their side and they would soon be victorious.

And then, trench warfare, four years of a world conflagration with combat in Europe, the Middle East, and Africa … millions dead .. Russia in revolution and soon to be Communist.

Or, take our wars in Vietnam and Iraq. When Johnson faked up the Tonkin Gulf and sent over the Marines, Navy, Air Force, and Army to “fight Communism”, could anyone foresee the massive destruction, death, social upheaval, violence here at home, and ultimate defeat of the world’s greatest superpower at the hands of the tiny nation called North Vietnam? Or, could anybody foresee that Vietnam today would be a prosperous and peaceful participant in the Asian Rim, trading with the United States and a valued member of our international relationships?

Before Vietnam, our history books all said “America has never lost a war”. I don’t think we can say that now.

If you think of the glories of war, or that World War II was our last “good war”, read “With the Old Breed”, by E.B. Sledge, the “Sledgehammer” of the miniseries “The Pacific”, and read and see through his eyes what the Marines endured and lived through in Peleliu and Okinawa. Or, study the firebombing of Tokyo, one night in 1945, when our B29s with bomblets of jellied gas (napalm) set the middle of Tokyo on a raging firestorm and 300,000 people died, burned, boiled, and asphyxiated to death … more than 3 times the number killed in either Hiroshima or Nagasaki.

Or, go to Washington DC, and visit the Vietnam War Memorial wall, and see just how many lives are imprinted as 57,939 names — or go over to the Korean War memorial, and see the incredible statues of a platoon on the trail, every face young, every face old and with those faraway eyes that young men develop in war.

When we went to war in Iraq, did we foresee that it would turn into a bloody explosive miserable “insurgency” that would ultimately leave Iraq divided, ungoverned, allied with Iran, and divided into sectarian sections many of which only have electricity a few hours a day?

Who knew, right?

I sat with my son-in-law in his shop one Memorial Day … 25th Light Infantry, Iraq … We listened to music and talked, and drank beer … and I think he cried just about all day long … I remember particularly Radney Foster’s “Angel Flight” … in a way, another casualty of war.

So yes, we should honor on Memorial Day those who passed, and served, and were injured in our defense and in our wars. It’s usually not the fault of the soldiers to get dragged into conflicts started by others. Most often wars get started by politicians, and most often, unfortunately, the arms manufacturers and arms dealers have the ear of the politicians.

But do not confuse the flag, which represents our nation, with all right, all honor, and all glory. The flag is a symbol, but it is not the nation. We are the nation. How we show the flag, where we place it, and what we do in the name of the nation, must always respect that every time we send our troops somewhere it is their lives, their families, their self-respect, their professionalism, and their personal honor we put on the line.

We are so blessed in this nation not to have experienced war on our soil since the Civil War and then the virtual extermination of Native America. We don’t experience the destruction and death of Syria’s civil war, or Yemen’s agony. We have not had bombs and explosions, fighter jets and helicopters overhead, schools destroyed suddenly from the sky, hospitals and Red Cross relief columns intentionally targeted in order to starve and kill civilian populations. Those are the realities of war which we in our generations have, thankfully, been spared.

But, having not lived through it, I think we might not understand how horrifying war is.

The idea of Memorial Day is to honor those who died in America’s wars. In other words, in order to be honored, you have to die. Think of this each time you see a sign that says James Smith, SSGt, Memorial Highway. It means that James Smith, Staff Sergeant, died in one of our wars.

So honor them, but also remember that war itself is inherently evil and destructive; that death in combat comes in many forms without mercy; and that soldiers in combat fight for each other and their brothers and sisters, not so much for honor, country, and flag.

On Memorial Day, remember that they died, so we can remember not to fight and kill unless it is absolutely necessary and there is no other way to accomplish what must be done … so that we will have less fallen heroes, less grief, and less loss for the families who love them.

Investigating Officers and Collision Reports in Personal Injury Cases

When a police officer or highway patrolman investigates a collision, he or she puts data from the investigation into a program which then turns out an “Official Oklahoma Traffic Collision Report”. It is absolutely PACKED with data. The front page looks like this:

collision report

The reports are public records. They cost $7.00 and can be obtained by a party to the collision, their attorneys, law enforcement, insurers, and the media.

But, they can’t be used at trial in our Oklahoma State District Courts. The report is hearsay, and the hearsay exception for records of government investigations does not apply to an investigation of a specific incident in state court. In federal court it does, but most personal injury cases don’t end up in federal court.

Also, the officer cannot testify to his opinions about who was at fault in the wreck. This is because of an archaic rule of evidence called the “ultimate issue”. In common law a witness was not permitted to state what the jury was supposed to conclude. They couldn’t say “Mr. Stone is guilty of obstruction of justice” or “This product was unreasonably dangerous and defective” or “It is my opinion that Driver 1 changed lanes unsafely and was at fault in this wreck.”

We adopted the Oklahoma Evidence Code around 1980.  It had a provision that an expert could testify to his or her opinions, even if the opinion “invaded the province of the jury” by “testifying to the ultimate issue”.

However, our State Supreme Court held, in a case called Gabus v. Harvey, that they would just ignore that language in the law and a police officer could not testify who was at fault because it was “the ultimate opinion”. Professor Leo Whinery, who was a leader on the Committee that wrote the Evidence Code and also wrote a great set of books on Oklahoma Evidence, turned purple and apoplectic every time he thought of Gabus v. Harvey. It may be what turned Leo’s hair so white. Regardless, it still stands. The officer’s report is not admissible, and the officer cannot testify who he gave a citation to or who was at fault.

I frequently have potential clients call up angry or upset because the investigating officer didn’t get the facts right. It’s like a referee who blows a call: the coach is furious, the fans are throwing their flat-screen tvs out the window, and three days later the league apologizes and said they made a mistake but too bad so sad it doesn’t change the result. I’d almost feel sorry for the Saints this year, except they deserve it for head-hunting Brett Favre in the NFC Championship Game back in 2009. “Skol!”, and “Minnesota Miracle!”. Karma’s a you-know-what.  Too bad, so sad.

USP NFL: NFC CHAMPIONSHIP GAME-LOS ANGELES RAMS AT S FBN NO LAR USA LA

But, unlike the sporting event where the referee was actually watching the event, got to see it in slow motion on instant replay, and still blew the call, investigating officers usually don’t usually get to actually see what happened. They can look at the physical evidence and listen to the drivers and witnesses, but that’s about it unless somebody had a dash cam or surveillance camera on when it happened. But how in the world can an officer tell if Driver 1 had the green light and Driver 2 had a red, or vice versa? It’s a classic “he said / she said” so usually they just don’t assign the blame to either party and let it get sorted out later.

Still, the investigation report is important even though it can’t be used at trial, because it is used to evaluate cases for settlement purposes. Lawyers and insurance companies use accident reports to assess liability and injuries, especially at the beginning of a claim. The report lists the identify of drivers, passengers, insurance companies, and witnesses; has a diagram and narrative of the officer’s opinion about how it happened; tells about the weather, road conditions, time and place of accident; shows where the point of contact was on each vehicle; states what the vehicles were doing and whether they violated any traffic rules; and states the nature and severity of reported or known injuries. Here’s what a diagram and officer’s narrative might look like:

report diagram

We frequently contact investigating officers, interview them, and take recorded statements from them. Recently I asked an officer to come in because his diagram showed the other vehicle was at fault, but the report stated my client’s driver had made an improper turn. When I asked to clarify, he explained that it was an “input error” he made with the computer at the station, and agreed to go back and do an amended report correcting the error.

So, if you have been in a wreck and you think the officer didn’t understand what happened – and you don’t have a dash cam, and it wasn’t caught on surveillance video by an astronaut on the International Space Station or a spy satellite – I recommend against cursing out the officer, taking off in a fury, and going on social media to rage against the machine.

It would probably be better to get good medical care, call a good lawyer, and get some help evaluating and prosecuting your case.

If I can give you a hand, send me an email at gregh@fylaw.com, or call Foshee & Yaffe, 405 632-6668 and I’ll take your call if I can, or call you back shortly.

Lawyer/Client Communications

Last week I was on the road during the Christmas holiday.  My cell phone rang — Bluetooth, of course.  An insurance defense lawyer was calling my clients’ parents and asking for statements about her injuries.  Should they give them?

My answer was for her to tell her parents it is up to them, but they’re not required to give a statement to anybody unless they are subpoenaed for a deposition or trial testimony.

There are so many layers to this brief conversation:

  1. I can advise my client, but I can’t advise her parents because I’m not their lawyer.
  2. For my client, it’s a scary unknown to have some stranger calling up her parents and trying to take a recorded statement about her injuries — what should she do?  Do they have to give a statement?  Will it hurt the case?
  3. My wife has to put up with interruptions like this, because I give my cell phone and email address to my clients.  My clients don’t abuse that, but they do appreciate it and I think it makes me a better lawyer for them.

It reminded me of a case I had where a husband and wife had claims due to the wrongful death of their teenage son.  They were divorced.  The mom was the Administrator of the Estate, which gave her and her lawyers control of the case.  I represented the dad.  After a while the two started talking about their lawyers.  The wife said:

“Your lawyer filed a Motion to get the case moving?” 

“You mean you can call your lawyer and he takes and returns you phone calls?” 

“You mean your lawyer actually tells  you what’s going on in the case?”

Pretty soon the mom fired her lawyers and hired me.  I first requested them to agree in writing to divide the proceeds of the case equally, so there would be no conflict of interest between them.  When the case settled I had to give part of my attorney fee to the lawyers who had done virtually nothing and wouldn’t call their clients back, but it was still pretty satisfying, especially since we had obtained a substantial settlement in a very challenging case.

5-qualities-of-a-good-lawyer-that-client-look-for-1-638

The most common complaint  I hear about lawyers is that they won’t return their clients’ phone calls, which is wrong on so many levels:

  1. A lawyer has an ethical duty to communicate and keep his or her clients informed about their cases.
  2. A lawyer has a duty to prosecute clients’ cases competently.
  3. It’s good business and good client relationships to stay in touch with my clients, and
  4. Injuries happen to people.  If I don’t know who you are, I can’t effectively represent you in an injury case because I don’t know how your injury affected your life.

This is why I give my clients my cell phone number and my email address.  It helps me help you if you can call me and get a quick question answered, or tell me what the doctors are telling you, or find out what the status of your case is.

Successful prosecution of a personal injury case requires teamwork between a lawyer, the lawyer’s staff, and the lawyer’s client.  Because we have a great staff and team at Foshee & Yaffe, I feel comfortable in telling clients that our firm will take good care of them, treat them with respect and kindness, and put together the nuts and bolts of their cases in a way that will help me get the best compensation possible for their injuries.

But it all starts with that relationship between you and me.  I tell you mine, you show me yours.  I can’t be your personal social friend or buddy while I represent you, because then I lose objectivity and can’t represent you professionally.  But there is a reason we are called “Counsellors at Law”.  A lawyer is both an advisor and an advocate.  If I don’t make myself accessible to learn the facts of your case, I can’t fight for you effectively.

Last month I asked an insurance adjuster whether the detailed settlement letter I sent her was helpful in her decision to offer policy limits to my client.  Her answer:  “Yes, because it helped me to see your client as a person, not just some medical bills and medical records.”

Your case is YOUR case, not your lawyer’s case.  I can never make you whole for a life-altering injury, but that doesn’t mean I have to add to your problems.  I try to represent you in a way that at the end of your case you’ll feel comfortable in recommending me to a friend or family member, because I listened to you, told you the truth, and represented you honestly.

And, after 32 years and about a hundred jury trials, I’m pretty good at what I do.

If you have a question, my email address is gregh@fylaw.com.

Wishing you a Happy New Year, Yours, Greg Haubrich

 

 

 

Evidence: Real, Circumstantial, and Demonstrative

How often to you hear someone say a case is weak because “it’s only circumstantial.”

Or, there’s “It’s just a he said/she said; there’s no evidence to prove it.”

Stop right there. STOP! If you want to understand how wrong these statements are, consider this: If you discard all witness testimony, AND all circumstantial evidence, you are basically discarding all evidence, because eyewitness testimony and circumstantial evidence are pretty much all the evidence that matters in any court case.

This all came to mind last week in the dramatic hearings over the Kavanaugh nomination to the Supreme Court, with Christine Ford testifying that Judge Kavanaugh tried to rape her when they were both teenagers. I heard a lot of misuse of terms of evidence in those hearings, and in the remarks by television experts and commentators. The most common one was that this was simply a “he said/she said” and therefore there was “no evidence” that the incident occurred.

But, Professor Ford’s testimony that the event occurred is direct evidence that it happened. Correspondingly, Justice Kavanaugh’s evidence that it did not occur is direct evidence that the event did not happen.

Direct Evidence

Just because a case is circumstantial doesn’t mean it’s weak. Some of the strongest cases of all are “purely circumstantial.” If a hundred monks swear they watched the beach all night and no sea turtle laid her eggs there, BUT, there is time/date/location stamped photo of a hole with sea turtle eggs in it and sea turtle tracks going from and back into the surf, what conclusion would you draw?

A case based solely on the testimony of a witness or witnesses is not necessarily weak either. If he said it, or she said it, there IS evidence of what each of them said. Why? Because, Grasshopper, the testimony of people as witnesses is evidence. You might say neither of them has evidence to back it up, but you can’t say their testimony is no evidence. Even a proven liar’s testimony is evidence – direct evidence — the testimony of a witness that an event occurred and the witness observed it.

Direct evidence is eyewitness testimony. The witness is describing something he or she experienced as it occurred, using his or her senses of sight, sound, smell, touch, taste, or emotional feeling. “I saw Dick shoot Jane.”  “I smelled gas.”  “I saw the sea tortoise come out of the ocean, dig a hole, lay her eggs, and walk back into the ocean.”

Q: “Did you see the wreck?”
A: “Yes, I saw the wreck.”
Q: “Describe it please.”
A: “I saw a black car go through a red light and hit the red car.”

That is direct evidence. What does it prove? Even without a photograph, a diagram, or any other witness testimony, it is evidence that the black car blew the light and hit the red car, causing a wreck. The driver of the black car was negligent.

Is this conclusive? No. The driver of the black car will say the light was green. Another witness may say the light was yellow and turned red. Another witness may say they heard a loud crash, immediately turned to look, and saw that the black car had a red light right after the collision. The collision damage and skid marks may suggest that the red car hit the black car.

The first witness’s evidence is not conclusive, but it IS evidence. It is direct, eyewitness evidence of what the witness testified to.

So, direct evidence is somebody saying they saw something; or heard something; or tasted something; or felt something; or smelled something. Direct evidence is testimony of what a witness experienced at the time the particular event occurred.  If believed, direct evidence alone, “she said”, may be sufficient.

Circumstantial Evidence

Circumstantial evidence may be documents, photographs, recordings, or physical objects. Circumstantial evidence is evidence from which a jury can infer a fact from another fact. Powder residue on a person’s hand is circumstantial evidence that the person fired a handgun. Photographs of collision damage are circumstantial evidence of the violence of a wreck. If an airplane takes off with a pilot and passenger, but lands with only the pilot, you might infer that the passenger fell – or was pushed – out of the plane.

In State v. Gary Lee Rawlings, Ms. Rawlings disappeared. Her body was never found. Her husband had bought a gun in a parking lot in Oklahoma City from a man who advertised it for sale. Rawlings rented a plane. When Rawlings stopped in Houston to re-fuel his plane, the fuel jockey noticed a large cloth object behind the pilot’s seat. When Rawlings bought the gun, he had a discussion with the seller about a tv murder mystery they’d both seen, and asked questions about how to conceal a murder.

Rawlings was convicted of first degree murder. Everything about the case except the testimony about the gun sale, and the guy in Houston seeing the cloth bag, was circumstantial. It was even circumstantial whether Ms. Rawlings was dead.  True, she disappeared and her husband had a motive (a custody battle), but there was no body to directly prove she was dead. You could infer it from other facts, and if you drew that conclusion you could also infer that Mr. Rawlings had done it.  So, despite the fact the case was “purely circumstantial” perhaps you can see how, if you were a jury, you might have convicted Gary Lee of murdering his wife with malice aforethought.

Once I show you the circumstantial evidence below, I will rest my case.

circumstantial evidence 2

Demonstrative Evidence

Demonstrative evidence is generally not sent back to the jury room, and is not usually admitted in evidence, but is seen or heard by the jury. It’s a way of illustrating a point in order to help understand it.

For instance, I often use demonstrative medical illustrations or anatomical models in a doctor’s testimony. When the doctor testifies that his patient had a “herniated lumbar disc which indented the thecal sac and impinged the L5-S1 left lateral foramen” I’ll hand him a model or illustration of the spine, and have him show the jury what he means and explain the anatomy. The model or illustration is not admitted to evidence, but has been used to explain to the jury what the medical testimony means.

In a toxic injury case (chemical poisoning from an aerosolized chemical leak) an expert used a Coke can to demonstrate concentration and diffusion of aerosolized chemicals across the countryside. He placed the can on our counsel table, cracked the pop top, and told the jury that if the can were filled with the chemicals that injured my client that little can would have already spread dangerous levels of the chemical throughout the entire federal courthouse. The can was not offered in evidence, but it made its point.

Words have meaning

I think a certain degree of precision of thought, reasoning, and terminology is critical to good lawyering. The rules of evidence in state and federal court are designed to keep out unfair, unreliable, and irrelevant evidence; and to let in evidence which is reliable, pertinent to the case, and fair to the parties. Those rules are complex and technical, and they really do not mean what lay people sometimes think they mean. They absolutely do not get used in court the way they have been misused in our common folk lexicon.

Think about it this way. If you tell me George knocked you off your bike and stole it, and I believe and trust you, you have proven it to me. That was direct evidence with no corroboration.

If you tell me your bike is missing, and that the only person who needed a bike and had access to your yard was George, you have proven to me circumstantially that George took your bike.

And, if you tell me George took your bike, and I see George riding your bike, I’m gonna go get my sister Nancy (who’s tough) and tell her to go knock George off your bike and give it back to you.

Since I’m a lawyer, I may charge a small fee for that.

If I can help you with a legal problem, email me at ghaubrich3323@gmail.com. Looking forward to hearing from you. Yours, Greg

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