Depression and Anxiety

Depression and Anxiety are both crippling mental health conditions that are underappreciated by the public because there is no visible sign of physical injury.  In one recent instance, depression and anxiety were so severe that a client literally could do nothing to help himself.  If clients find the circumstances surrounding their injury to be overwhelming, it is important that they establish a relationship with a counsellor, psychologist, AA sponsor, or minister to provide the emotional support to allow them to move forward with their lives.  You have to play your hand the best you can.  See http://www.junelawyer.com/

Thanksgiving For Those Without

Last night, I went to my monthly board meeting at Brother Francis Shelter, Anchorage’s largest shelter for the homeless.  With the single digit temperatures and winds of the last few days, it was packed, literally standing room only.   See http://www.adn.com/2011/11/16/2174962/homeless-pack-shelters-nearly.html.  Seeing those seeking shelter from the cold, it was clear that some had hit an unexpected bump in life’s road. A few (This always surprises me that it is only a few) had alcohol issues. 

            In this week of Thanksgiving, please consider helping those who need our help at https://www.cssalaska.org/donate.php.

           We all have to play our hand smartly.  See http://www.junelawyer.com/.  Some of us have harder cards.

When is a Scheduled Trial Not Scheduled.

   I attended the final Pre-Trial Conference in a major case only to leave with the Judge postponing the trial for 2 1/2 months.  Unknown to me, the Judge had scheduled personal leave and other matters during the scheduled trial time and was only willing to have a trial if we could commit to try the case in 1/2 the scheduled trial time.  The defense lawyer quickly hopped out of his chair to tell the judge that this was impossible.
   Following the hearing, I walked slowly back to my office to begin the work necessary to try the case at the rescheduled time.   This include clearing my calendar of the other matters that I had already scheduled, contacting the persons who had already agreed to testify to let them know of the change in plans, and, the hardest and most important part, letting the clients know.  Psychologically, the clients were looking forward to the closure that would come with their now-delayed day in court.  When the clients and witnesses asked how the Judge could have a schedule conflict for a case that was on his calendar, I had no good response.
   At least in this instance, I doubt whether the Judge considered the disruptive impact of his actions on the clients and witnesses.  Unfortunately, the Judge's actions are beyond our control.  At each step, you have to play your hand smartly, even in adversity.   See http://www.junelawyer.com/

Tragic APD Accident Shows Inadequacy of Workers Compensation

  There was a tragic accident involving an Anchorage Police Officer last week.  See http://www.adn.com/2011/09/24/2086326/police-plan-to-arrest-driver-accused.html
A police officer was broadsided while trying to stop a vehicle that had been traveling for many miles down the Glenn Highway in the wrong lane of traffic.   The police officer was seriously injured and is under continuing medical treatment.

   Fortunately, because the injury was during work, the police officer is partially protected by the Alaska Workers' Compensation Act.  His medical care will be paid and he will receive a reduced paycheck until his physicians say his medical care has reached "stability."

   Unfortunately, the Alaska Workers' Compensation Act will not fully compensation the officer and his family for their losses.  Remaining unpaid will be the balance of his paycheck, his future wage losses should he be unable to return to police work, and the pain, suffering and trauma he and his family are experiencing.   These losses can only be recovered from the responsible driver and his employer.

  At the moment, his first priority is recovery and our thoughts are with him. 

Preparing for Trial

   Clients do not always realize the work that is necessary to properly bring a case to trial.  One of my cases goes to trial in 60 days and my office is getting ready.  Here is a list of projects we are working on.

1. Scheduling witness testimony
2. Finalizing Exhibits
3. Finalizing Jury Instructions
4. Filing motions regarding the anticipated evidence
5. Completing depositions of opposing experts
6. Asking the Court to order final document production.

As trial approaches, I will be talking to the individual witnesses more so that they understand the importance of their testimony, working on jury selection, preparing demonstrative exhibits, and, of course, opening/closing arguments.

   Because of the work involved, it is important that the Client appreciate both the strengths and weaknesses of his case.  You have to play your hand smartly.  See http://www.junelawyer.com/

Aviation Accident Victims: The Immediate Response to a Tragedy

  Over the last 6 weeks there has been a series of tragic aviation accidents in Alaska.  Most recently, an Inland Aviation Services flight crashed near McGrath resulting in both injuries and deaths.  See http://www.adn.com/2011/08/14/2014871/troopers-say-2-dead-in-plane-crash.html.  I am often contacted by aviation accident vicitms about how what to do in the days following an aviation accident.

   Accident victims should remember that the most important thing is to focus on their own physical and emotional health.  For survivors, this means concentrating on medical treatment and allowing a trusted family member or friend to help with addressing lost income benefits during medical recovery.  For the families of persons who unfortunately did not survive, this means allowing time to grieve and the other actions one needs to take following a sudden death. 

  Be wary of representatives of the airline or the airline's insurer that "drop in" to express their sympathies and share their concerns.  While some of these "visits"  may be the result of good intentions, they are also part of a practiced strategy to limit compensation.  Accident victims should recognize that their legal interests are in conflict with the legal interests of the airline or the airline's insurer.

   Also be wary of lawyers or law firms hosting seminars or advising that they have confidential information regarding the cause of the accident.  These claims can be misleading because all accidents are investigated intensively by the National Transportation Safety Board, an investigation in which the airline is required to participate and in which the lawyers are excluded. 

  Remember:  Play your hand smartly.  See http://www.junelawyer.com/.

Motor Vehicle Roll Over Accidents With Passenger Injuries

   Over the last week, there has been 2 sad motor vehicle accidents in which vehicles with several passengers rolled over.  One accident involved a prominent state senator from the Midwest.  The other accident involved high school students from Chugiak.

    These accidents involve significant issues for the passengers.  One involves the question of whether the friend driving the vehicle was negligent in causing the accident.  People may be reluctant to make a bad situation worse by saying this but the reality is that good people can make mistakes and pointing out the mistake is necessary for the insurer to make payment.   If friendship is a concern, this can be done diplomatically.  There is truth to the saying that, in particular circumstnaces, one can be more effecting channeling Colin Powell as opposed to Donald Rumsfeld.

   The other issue for the passengers is that there may be more than one insurance company potentially responsible for paying losses.  These would include the vehicle owner's policy, the vehicle driver's policy, the personal policies of the passengers insuring other vehicles if there is a potential underinsured motorist claim, and even the motor vehicle policies of other household members.

    You have to play your hand smartly.  See http://www.junelawyer.com/

Maintenance and Cure for Injured Fishermen

  I am travelling to Denver this week in a case involving an injured seaman.  A fisherman suffered a serious low back injury and has become a chronic pain patient.  The legal issue is how long the vessel is required to pay both medical expenses which the law calls "cure" and living expenses which the law calls "maintenance."  This gentleman has been under treatment for more than 4 years and has not recovered.  While no one expects a full recovery, the issue is whether he can be physically improved by ongoing treatment.

  Injured fishermen are legally "seamen."  Under the law, the vessel must pay both medical expenses and daily living expenses until the injured seaman reaches "maximum cure."  Maximum cure is the date when physical improvement in the underlying condition stops and ongoing treatment is only "palliative."  To put it another way, the vessel is required to pay to make the injured fisherman "better" but does not have to pay for "aspirin."  

  This is a complicated area of the law, particularly for fisherman whose injuries require ongoing treatment or whose medical treatment causes other medical complications like depression and chronic pain.  See http://www.junelawyer.com/.

Death in Parade

During Saturday's Pridefest Parade, a man died because he was run over by a convertible carrying the Parade's Grand Marshall.  Other than the driver losing control of her vehicle, the details of the accident are not fully known.  Everyone agrees that the driver did not intend to cause an accident and feels terrible.

The tragic accident underscores that motor vehicle are a dangerous instrumentality and can kill.   Tragedies like this can happen with only a momentary lack of attention or small mistake.  No amount of money can compensate the family of the victim for their loss. It is because we recognize this fact that laws require that we all carry insurance so that the innocent victims are not forced to carry the burden of someone else's innocent mistake. 

I would expect a lawyer representing the family to assert a damage claim against both the driver and the parade in a statesmanlike but firm way.  See http://www.junelawyer.com/

Rights When One Suffers a Work Injury/Raven Electric

Last week's newspaper article had a sad story about a Raven Electric worker who suffered electrocution injuries.  Sometimes these accidents are caused by employer negligence and sometimes by the negligence of others which the law calls "third parties."

Under Alaska's Workers' Compensation Act, Raven Electric is required to provide insurance to pay for any medical treatment, a disability benefit during the time of recovery up to medical stability, and other benefits if there is a permanent injury and recovery is incomplete.  In return for doing this without requiring the injured worker to hire a lawyer, the law prohibits the injured worker from suing the employer for negligence causing the injury.

If the negligence or mistakes of someone other than the employer caused the accident, the injured worker has a right to sue this "third party" for his full losses.   In cases of significant injury, this is important because the worker does not receive full compensation for his injury.  Specifically, the injured worker's disability payment is less than his actual wages, worker's compensation benefits do not pay the injured worker for any loss of future wages if he is unable to return to work because of his injury, and there are no workers' compensation benefits for non-economic losses which most of us refer to as pain, suffering, and forced changes in life.

Alaska's Workers' Compensation Act may have other impacts on the injured worker that go beyond this comment but you have to play your hand smartly when you are the victim of a life-changing tragedy.  See www. junelawyer.com

Health Care for Accident Victims

   Over the last week, I have had been contacted twice by current clients and one potential clients about difficulties in obtaining required health care.  If an accident victim does not obtain medical treatment, the defense argues that he has "failed to mitigate his damages" and, therefore, should receive less compensation.

   When presented with questions like this, my strongest advice to clients is that "their number one job is to get better"  which means making all medical appointments and seeking out doctors who can address their health complaints.  

   You have to play your hand smartly.  See http://www.junelawyer.com/

Its Important to Know the Law/Pacific Seafoods Clamming Accident

   In today's paper is a story about 5 clammers working for Pacific Seafoods who died in a tragic accident. 

   In most Alaska work accidents, the Alaska Workers' Compensation Act prevents the accident victim from suing their employer.  Inability to sue the employer is the tradeoff for workers' compensation benefit.

   However, in this case, the accident occurred on the water and maritime law applies.  The families of the clammers that died have the right to bring suit for their losses against the clammers' employer.

   Its always important to play your hand smartly.  To do so, you have to know your cards.  See http://www.junelawyer.com/

  



Persistence Pays

   In Alaska, the loser is required to pay a portion of the winner's attorney fees.  Sometimes, the defense becomes the "winner" because the amount recovered is less than the amount offered before trial.  These are hard-fought motions because the only thing worse than being an accident victim is having a court order you to "pay" for the privilege of being an accident victim.

   I spent a lot of time on one of these motions last week.  It was a complicated case in which a client had been formally offered a significant sum of money to resolve a case involving 2 injuries.  While the offer was pending, the client reached an agreement to settle the less serious of the 2 injuries on the condition that the combined settlement offer for both injuries be taken off the table. 

   The case went to trial and the jury's verdict disappointingly found fault but, at the same time, found that the client should not recover money for his losses, but also found that his ongoing medical bills should be paid as they were incurred.  While less than the client had hoped for, the recovery of future medical expenses was at least some consolation.

   Despite this small victory, the insurer proclaimed itself the winner based on the settlement offer the client had agreed would be taken off the table.  The insurer asked for $60,000 in attorneys' fees and approximately $20,000 in costs from a 100% disabled man who had not worked for 4 years. 

   At first, the judge agreed with the insurer.  Last Friday, however, the judge reconsidered and effectively changed her mind.  A lawyer has to be persistent and fight on every issue.  You have to play your hand hard.  See www.junelawyer.com

Cell Phone data

It is a constant challenge these days to stay abreast of technology.  This week, I am attending a seminar regarding cell phone data.  I'm interested in how (and if) one can obtain past text messages from cell phone providers.    Not only are people increasingly texting, teenagers communicate almost exclusively by this method.

When driving, one sees people using cell phones regularly.  However, after an accident, no one voluntarily admits to doing so.  Recovery of text messages would allow discovery of the statements most contemporary to the occurrence of an accident.

You have to play your hand smartly.  See http://www.junelawyer.com/.

Good Friday Lessons for Lawyers

This is the week of Good Friday.  The Exxon Valdez oil spill happened in 1989 on Good Friday.  Twenty one years later, after a trial, a half dozen hearings before appellate courts, and an United States Supreme Court decision not based on existing case law, the case is almost over. 

21 years:  the American answer to Charles Dickens' Bleak House novel.  Sometimes, it doesn't matter how smartly one plays their hand, a well-financed defendant can cause a case to spin out of control

See http://www.junelawyer.com/

Confidential Settlements

Within the last few weeks, 2 clients of mine reached settlement agreements, one against Home Depot and another against a major paint manufacturer.  In each case, a condition of the settlement was that the client maintain the confidentiality of the settlement.

Why do companies insist on confidentiality?  It is to keep other accident victims uninformed.  It is for that reason that there is a benefit to retaining a knowledgeable and experienced personal injury lawyer.

You have to play your hand smartly. 
See http://www.junelawyer.com/.

The McDonald's Coffee Cup Case

  I cannot say how many times the McDonald's coffee case comes up in conversation about what is wrong with our system for deciding accident victim losses and how other accident victims find it outrageous.  Check out http://www.hotcoffeethemovie.com/ to find out how the woman was hurt and how badly.

The Importance of the Deposition

  I just returned from a 3 day deposition trip to Oregon.  The defense scheduled the deposition of my client as well as 2 treating physicians.  Why is this important?

  The deposition is the defense's opportunity to "eyeball,"  i.e., take a first hand look at the client and determine the scope and severity of losses resulting from an accident.  At the same time, the deposition of the treating physician is the defense's opportunity to assess the evidence of medical injuries.

   I encourage defense counsel to schedule promptly  whatever depositions they believe to be necessary to assess a case.  I advise clients that their deposition is similar to a job interview.  If they present themselves well as straightforward presenters of the accident facts, their injuries and losses, it is likely that they will be presented the highest settlement offer for their case.  If that is inadequate, they can make the decision to have a jury decide their case.

   You have to play your hand smartly.  See http://www.junelawyer.com/.

Why Homeowners' Insurance is Important

  I am currently involved in a case where an accident victim has been countersued by the responsible party.  Upon learning this, I immediately asked the client's homeowners' insurer to defend the case.  While upsetting to the client in the short term, there is now an additional lawyer in the case fighting for my client with one paid by the insurer.
  Many clients do not understand the full benefits of a homeowners' insurance policy and think it applies only to persons actually injured at their home.  Whether issued by Allstate, State Farm, or any of the other major insurers, each of these policies protects the homeowner from being sued regardless of where the injury occurs.  Of course, there are exceptions made within the policy for things like intentional acts, car accidents and so on.   But the lesson to be learned is that there is no harm in asking your insurer for help.
  Another example of this is that most homeowners' policies include "medical payments coverage" to pay the medical bills fo someone hurt at your home regardless of fault.  This lets the homeowner make the gracious gesture of offering to pay for medical bills caused by an accident that no one feels good about.  Homeowners that are proactive and offer to pay medical bills or even to get in contact with their insurer are less likely to be sued.
   You always have to play your card hand smartly.

President's Day: Abraham Lincoln

The country celebrates President's Day this week with one of America's most significant Presidents being Abraham Lincoln.  Other Presidents who also happened to be lawyers include President Obama, President Clinton, and President Nixon.  Of this list, President Lincoln is most known for being a trial lawyer and being pragmatic in his representation. 
 

Is Local Government Responsible for Hazardous Conditions

I am working this week with high school student government classes attending an Alaska Supreme Court oral argument concerning a woman who suffered a serious injury as a result of tripping in an uncovered water main valve box:  basically an uncovered hole in the ground. 

The Municipality agrees that the hole should be covered but says that there is no evidence that a Municipal worker uncovered it or that the Municipality knew about it.  In response, the injured woman points out that it had been uncovered at least a week because another person had complained about it supposedly triggering a call to the Municipality.

The case raises several questions regarding governmental responsibility:  Who among us has not called a government office only to have the government worker encountered during the next visit say there was no record of the call?   Who should bear the consequences of the uncovered hole in the ground, the Municipality that created the hole or the woman who was injured as a result of the hole?

One always has to play their hand smartly.

Representation of Korean client

Last week, I attended a mediation with a Korean-speaking client for whom English was his second language.  Many lawyers avoid representing clients for whom English is a second language but I enjoy it.  It is a chance to understand a different culture and to learn about what prompted someone to leave their home and immigrate not just to the United States but also Alaska.

One of the challenges is making certain the client understands his case and can make knowledgeable decisions as to what is in his best interests.  With respect to translation, I relied on this client's son and family members are the most common translaters.  Beyond translation, however, it is important to explain legal issues in their simplest forms.  With lawyers having a tendency to make things more, as opposed to less complicated, this becomes an useful exercise for me.

You always have to play the hand that life deals you smartly.

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.

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.

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.

"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.

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.