Monday, January 31, 2011

Representation of Deaf Client

Last week, I represented a very unusual client at deposition.  The client was deaf and he was questioned by means of a combination of connecting the court reporter’s transcript to a computer monitor and his lip reading.  Short of my physically putting my hand on his shoulder, there was nothing I could do to counsel him once a question had been “asked.”

Because of our “conversations” in preparing for the deposition, he understood the issues in his case, both as to how he had come to be the victim of an accident and his losses and presented himself well on his own behalf, i.e., straightforward and articulate.

The important thing in every case is presenting your cards to the best of your ability.

Monday, January 24, 2011

Injuries from Slips/FAlls on ice and snow

    I was able to resolve a case last week involving a slip and fall on ice near the entryway of a convenience store last week.  These are difficult cases in Alaska with our winter conditions with the defense always arguing that, if ice was present,  the accident victim must not have been paying proper attention. 

    In this case, I believe the following facts were important in persuading the defense to resolve the case rather than go to trial.

    The slip/fall was immediately reported.
    There was immediate medical treatment.
    A witness confirmed the presence of an ice patch.
    The convenience store's former employee was located in North Carolina   
    and also confirmed the presence of ice.
    The convenience store had not followed internal procedures regarding
    inspection of the outside sidewalks and sanding/salting.
While the facts of each case is different, clients have to play their hand smartly.

Tuesday, January 18, 2011

Martin Luther King Jr. Day of Service

    Yesterday was the national holiday celebrating Martin Luther King, Jr.  The President has encouraged Americans to honor Dr. King's memory with a national day of service and I spent the afternoon in an Alaska Bar Association outreach advising persons with limited means on a variety of legal problems. 
    The persons I spoke to had legal problems involving condominium dues, credit card debt, wrongful termination, and workers' compensation among others.  What was most striking to me was that complicated legal issues exist regardless of income levels and how even minimal access to a lawyer can help the citizenry negotiate the bureaucracies we all encounter in our daily lives.
    Accident claims are not the only complicated legal issues we face.  As always, each of us has to play the cards life has dealt us as best we can.

Monday, January 10, 2011

"I want to Appeal."

  Disappointed by jury verdicts, it is not unusual for a client to ask about appealing.  In advising clients whether this is in their interest, important points need to be made.

1.   Absent unusual events at trial, wining an appeal is always an upstream paddle.  No matter what the issue might be, there is always a bias to deferring to the trial court's decisions.  In a recent appeal, my co-counsel remarked that a 50/50 chance of success was a strong case for appeal.  Clients should never assume that the outcome will change on appeal.

2.   People misunderstand what it means to "win" on appeal.  Rather than winning the case, winning an appeal only means that the client has a right to a second trial.  In golf terms, winning means the first trial is a "mulligan" and the client has the right to a "do-over."

3.   For the lawyer, an appeal means more work.  Should the appeal be successful, this means yet more work in a second trial.  The client and the lawyer should discuss whether this is included, or not included, in the original fee agreement.

4.   Appeals take between 1 and 2 years to be resolved.   During this time, the client's life goes on while the cas is on hold.

Remember to play your card hand smartly.

Monday, January 3, 2011

Reloading for 2012

   How "Palinesque" to discuss resuming work at the end of the holiday season!

   The key to successful representation is organization.  As part of my monthly and quarterly routines, I go through each case and ask "What needs to happen next in order to move this case forward and bring it to a favorable ending for my client?"  This involves the following steps:

  1.  Identification of known facts regarding case.

  2.  Identification of unknown facts potentially affecting strength of case requiring further investigation or discovery from opposing party.

  3.   Analysis of maximum potential recovery as well as strengths and weaknesses of case.

  5.  Discussion of case strategy with client, including whether to file lawsuit or explore possibility of resolution without lawsuit.

  6.   Filing of lawsuit for purpose of obtaining trial date. 

  7.    Identification of facts, documents, and other information required from responsible party during discovery.

  8.    Preservation of evidence for trial, including depositions of necessary witnesses.

  9.    Schedule deposition of client so that responsible party can assess validity of claim.

  10.  Trial. As President Reagan said, "They can run but they cannot hide."

It pays to play your hand well.