The Conference Room--Answers to Questions on N.C. Law

The Reason an English King wanted to "Kill all the Lawyers."

John Adams--Massachusetts
Samuel Chase--Maryland
Abraham Clark--New Jersey
William Ellery--Rhode Island
Thomas Heyward Jr.--South Carolina
William Hooper--North Carolina
Francis Hopkinson--New Jersey
Samuel Huntington--Connecticut
Thomas Jefferson--Virginia
Thomas Lynch Jr.--South Carolina
Thomas McKean--Delaware
William Paca--Maryland
Robert Treat Paine--Massachusetts
John Penn--North Carolina
George Read--Delaware
George Ross--Pennsylvania
Edward Rutledge--South Carolina
Roger Sherman--Connecticut
James Smith--Pennsylvania
Richard Stockton--New Jersey
Thomas Stone--Maryland
George Walton--Georgia
James Wilson--Pennsylvania
Oliver Wolcott--Connecticut
George Wythe--Virginia

25 out of 56 Signers of the Declaration of Independence were lawyers. 

--Bradley A. Coxe is a practicing attorney in Wilmington, NC who specializes in Personal Injury, Car Accidents, Medical Malpractice, Contract and Real Estate disputes and all forms of Civil Litigation.  Please contact him at (910) 772-1678.  

If a Tree Falls and Nobody Hears it...Do You Have a Lawsuit?

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Hurricane season officially began on June 1.  Around here, we have had a little bit of experience in the Hurricane department, so when we see the Weather Channel hanging around, we know to get to the store, stock up on bottled water, propane and Spam and hunker down for a good named storm.  After it is over, everybody heads blinking into their yard checking out the damage and swapping tall tales of much bigger storms with their neighbors.  The situation happens fairly frequently that a tree on one property has fallen and damaged a house or fence on another property, or sometimes caused someone personal injury.  Who is responsible?  First, most people have homeowner's insurance and if your house or even your car gets hit with the neighbor's formerly prized pecan tree, your insurance will usually pick up the tab.  It may be a good idea as part of your hurricane season checklist to review your homeowner's policy and check for what exactly your coverage is for trees and other things, and what amount of a deductible you will pay. 

Second, forgetting about insurance, in North Carolina, your neighbor generally has no duty to pay your damage, even if it was his tree that hit your house.  After all, he didn't knock it down onto your property, it was an "Act of God," and He is beyond the subpoena power of the North Carolina Courts.  However, you may have a case against that neighbor in negligence if he knows that the tree is unhealthy or diseased or otherwise fails to maintain the tree. 

Where there is negligence, there is usually a defense of contributory negligence.  So if you asked your neighbor if you could remove the diseased tree and he agreed, but you failed to do so before the storm knocked it on your roof, the neighbor would have the defense of contributory negligence.  Other jurisdictions have considered it contributory negligence for failing to prune a diseased limb that hung over your property line. 

If there is a case against your neighbor, and you are covered by insurance, usually your insurance company will pay you and then may maintain an action against the neighbor to get their money back.  If that happens, talk to the attorney for your insurance company.  Sometimes you can ride his coattails and recover your deductible as well. 

--Bradley A. Coxe is a practicing attorney in Wilmington, NC who specializes in Personal Injury, Medical Malpractice, Contract and Real Estate disputes and all forms of Civil Litigation.  Please contact him at (910) 772-1678.  

Lien on Me

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There are several different types of liens in the law.  Generally, a lien is the right that is created by law, or sometimes by express contract, to retain lawful possession of property of another under that person fulfills a legal duty to the person holding the lien.  A mortgage on your house is one kind of lien. 

A mechanic’s lien, also called a contractor’s lien or materialman’s lien, is a particular type of lien that allows a person who furnishes materials or work to the construction of a building or other large project to have a lien on the building or on funds for the building.  In North Carolina, these liens are set forth in Chapter 44A of the North Carolina General Statutes.  In North Carolina, there are actually two different broad types of mechanic’s liens.  The first is a property lien and the second is a lien on funds.  The property lien can arise when the owner of the land is the one who owes the money.  For example, a general contractor is hired and signs a contract to build a house.  The homeowner then doesn’t pay.  The general contractor can then put a mechanic's lien on the house.  To do this, he files a notice with his name and the owner’s name, the property address, the work he did, the money owed, and the date of the last work done.  This notice must be filed within 120 days of the work, or the lien right is gone.  After the lien is filed, it is extinguished unless the builder were to file a lawsuit to enforce the lien within 180 days from the last work done.  The effect of the lien is that the homeowner would have to satisfy the lien before he could sell or convey the building.  Even if the homeowner disputes the amount owed, the lien still remains until the matter is resolved by the courts.  If the homeowner needs to sell the property prior to that, he can deposit the amount of the lien with the clerk of court who will hold the money pending a resolution.  That way, the builder is assured of there being money to pay him if he is correct.  

The second type of mechanic’s lien is the lien on funds.  This lien arises when the person who is supposed to pay for the work, and the owner of the property are different.  For example, a subcontractor is hired by the general contractor who is in turn hired by the homeowner.  The subcontractor doesn’t have a contract with the homeowner; the general contractor was the one who was supposed to pay him, so the subcontractor can’t attach a lien to the actual property.  What he does is to make a claim of lien on funds.  The time periods and deadlines are the same, but rather than put a claim on the property, what he is doing is giving notice to the homeowner not to pay the general contractor. That money is what the lien is on, not the property.  Only if the homeowner gets notice of the lien and pays anyway, or the general contractor has his own lien against the property that the lienholder can piggyback on, can the subcontractor put a lien on the property.  If the homeowner has paid the contractor all that he is entitled to, and he hasn’t paid the subcontractors, there is no restriction against the homeowner in selling the property.

Even without a lien, a claim for breach of contract arises, so that a general contractor can get a judgment from a court for money either way.  However, all that a judgment gives you is a chance to collect.  With a valid lien, the general contractor can preserve what assets there are, and get a priority over them, which gives the lienholder a much better chance of actually getting paid. 

--Bradley A. Coxe is a practicing attorney in Wilmington, NC who specializes in Personal Injury, Medical Malpractice, Contract and Real Estate disputes and all forms of Civil Litigation.  Please contact him at (910) 772-1678.  

The best way to reduce medical malpractice lawsuits

The North Carolina Medical Board has made positive steps in the past few years to better regulate and discipline doctors in the state.  However, a new bill in the North Carolina Senate is making it harder for the Medical Board to regulate licensed medical doctors.  Among other things, it requires a panel, rather than a single board member to start an investigation; requires two experts rather than one to testify for the Board at a hearing; and allows only one non-physician to sit on the hearing committee.  The Medical Board attorney calls the changes “catastrophic” and some say it amounts to "Legislative Malpractice."

While some doctors may view this as the same fight they have against “frivolous malpractice lawsuits,” in my opinion, the more the Medical Board protects the patients of North Carolina and disciplines and removes bad doctors, the less malpractice lawsuits will occur.  When the Board doesn’t do its job, civil law and medical malpractice lawsuits fill the vacuum.  In fact, the Medical Board, if given enough power and a strong mission, is better suited to govern doctors than the court system.  I turn down medical malpractice cases every month, not because there was not bad, or even horrific, medical care, but just because the patient was lucky enough not to be permanently damaged.  The Medical Board can stop bad behavior from bad doctors, before it causes a future patient permanent damage. 

--Bradley A. Coxe is a practicing attorney in Wilmington, NC who specializes in Personal Injury, Medical Malpractice, Contract and Real Estate disputes and all forms of Civil Litigation.  Please contact him at (910) 772-1678.  

I ran out of gas. I had a flat tire. I didn't have enough money for cab fare. My tux didn't come back from the cleaners. An old friend came in from out of town. Someone stole my car. An earthquake. A terrible flood. Locusts. IT WASN'T MY FAULT!

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The North Carolina Legislature is set to debate a new bill to end contributory negligence and adopt the Uniform Apportionment of Tort Responsibility Act   This is a pretty big deal in North Carolina and will impact a lot of people in years and decades to come and its flying under the radar of most people.  What the bill does is modify the rule of Contributory Negligence.

Contributory Negligence is a defense in a negligence action.  The basic idea is that if it is somebody else’s fault you are hurt; you can recover from that person. To get a little more in depth, Negligence refers to a person's failure to follow a duty of conduct imposed by law. Every person is under a duty to use ordinary care to protect himself and others from injury. Ordinary care means that degree of care which a reasonable and prudent person would use under the same or similar circumstances to protect himself and others from injury.  A person's failure to use ordinary care is negligence.  For example, if you are driving a car down Michigan Ave. at 100mph you were not exercising ordinary care and were negligent.  If you hit somebody because of that, they would have a negligence action against you.

Contributory negligence is the defense that says that if the person hurt was also at fault, she can’t recover.  So if you are speeding and hit somebody who was looking down trying to find a radio station and therefore didn’t see you in time to avoid the accident, you could argue they were also at fault and guilty of contributory negligence and if the jury so found, the person you hit wouldn’t recover anything. 

Defense attorneys, and I’ve been one, therefore could argue before a jury that if the Plaintiff (the injured party and the one bringing the action) was only one percent at fault, and the Defendant (the one answering for the action) was ninety-nine percent at fault, the Plaintiff couldn’t recover.  This sounds harsh and there have been a few work-arounds in North Carolina law that have sprung up over the years to alleviate it somewhat.  In addition, I know that (despite clear instructions from judges NOT to do this) juries will sometime do some deal making when they are trying to reach a unanimous decision, with the pro-Defense jurors voting for liability if the damages are kept down. 

All but four states, North Carolina being one, have gone away from the strict contributory negligence in favor of a modified version, also called “comparative negligence.”  This is what the new bill being debated will do if passed.  Basically, as long as the Plaintiff is less than 50% at fault, she can still recover, with the amount of her recovery lessened by the percentage she is found at fault.  So if a Plaintiff is found one percent at fault, and the jury finds her damages to be $10,000, she still gets $9,900.  Under the current law, she would get $0.  So that is a pretty big change in the way the law has been in North Carolina since Raleigh was a person and not a place.  

--Bradley A. Coxe is a practicing attorney in Wilmington, NC who specializes in Personal Injury, Medical Malpractice, Contract and Real Estate disputes and all forms of Civil Litigation.  Please contact him at (910) 772-1678.  

Smile

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The Raleigh News and Observer has reported a “man bites dog” story.  A dental patient is complaining that her dentist told her she needed an expensive dental treatment that a later dentist said was unnecessary.  However, it is not the patient suing the dentist, but rather the dentist suing the patient.  The patient made a complaint both with the N.C. Dental Society and the N.C. State Board of Medical Examiners, as well as making complaints in an earlier Troubleshooters column with the newspaper.  About one week later, she found herself the Defendant in a defamation lawsuit.

A legal case for defamation requires a statement (in writing for libel, orally for slander), that is false, and that is communicated to a third party causing damage.  For private persons, it is enough to show that the person making the false statement failed to use ordinary care to determine if the statement was true.  Public persons, such as politicians, must show that the person knew the statement was false or had serious doubts that the statement was true.  Depending on the type of statement, the impact it caused, and the level of intent or maliciousness of the defamer, the person being defamed can recover nominal damages ($1), actual damages (for example, the dentist has alleged that other patients have canceled appointments because of the statements made), and punitive or punishment damages.

While the dentist has as much right as anybody to protect himself legally against false and malicious statements that injure his business, the timing of his suit seems somewhat suspect.  By filing the suit before the patient's complaints were considered by the Dental Board, it looks as though he is trying to  gain leverage over this patient, who may or may not be able to afford legal counsel, to get her to drop the complaints.  He may be particularly concerned as the Dental Board seems to be a bit more aggressive in governing their members than the Medical Board. 

--Bradley A. Coxe is a practicing attorney in Wilmington, NC who specializes in Personal Injury, Medical Malpractice, Contract and Real Estate disputes and all forms of Civil Litigation.  Please contact him at (910) 772-1678.  

Show Me.

An experienced trial lawyer once told me "Tell me and I will listen, but SHOW me and I will understand."  This was his philosophy in presenting cases to juries and I think it has even more significance today where TV causes juries to expect CSI magic.  The above video is an entertaining 3d recreation of Flight 1549 landing on the Hudson.  The video was produced by a company that specialized in 3d reenactments of accidents and presented to lawyers recently at the ABA's recent Tecshow for lawyers.  While I'm sure that chalkboards and flipcharts will continue to be used with smaller cases, in larger, serious motor vehicle and other accidents, this type of video would be extremely powerful.  A jury couldn't help but be more impressed by a 3d video showing one party at fault, especially if the other party relied on more low tech illustrations to prove their case. 

This has long been a concern of the courts and the law of evidence in civil court has some clear rules regarding the presentation of this type of evidence.  When a demonstration or experiment is offered as actual proof of something, the circumstances must be substantially similar to those prevailing at time of occurrence in controversy.  However, far easier to get in front of a jury is illustrative evidence that simply helps explain the testimony of a witness.  This type of evidence can be as simple as drawing an intersection on a chalkboard and as complicated as the plane landing video.  The judge still retains some power to exclude any evidence if he thinks it will be unduly prejudicial, however, most judges simply rely on the other side and their cross-examination to point out flaws in the witness statement and the illustrative evidence that shows it. 

--Bradley A. Coxe is a practicing attorney in Wilmington, NC who specializes in Personal Injury, Medical Malpractice, Contract and Real Estate disputes and all forms of Civil Litigation.  Please contact him at (910) 772-1678.  

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Trials and Tweets

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Here is an interesting article on how the "Information Age" is impacting jury trials.  The article focuses on a New York case that was thrown out when it was admitted by eight (and that's out of twelve) jurors were conducting Google searches, Wikipedia searches, and using other Internet resources to discover facts about the case that the attorneys had not presented, and even facts that had been specifically excluded by the court.  Another civil case in Arkansas is up on appeal by the loser of at $12 Million verdict on the grounds that a juror was twittering from the jury box.  One of the alleged tweets:  “So Johnathan, what did you do today? Oh nothing really, I just gave away TWELVE MILLION DOLLARS of somebody else’s money.”

Now outside influences on juries has always been a problem.  Rent "12 Angry Men" sometime.  A good movie, but Henry Fonda's independent examination as the jury foreman was totally against rules and borderline contempt of the court.  However, with information so much more accessible, and with a modern idea of people feeling almost entitled to any information they want, the situation seems to be getting worse and clashing with the idea of the judge and rules of evidence limiting the information to juries.

The rules are designed to provide juries the information they need to give a decision and verdict on the the relevant facts of the case and to prevent inflammatory, confusing, irrelevant information and to prevent trials from lasting twice as long as they do.  We don't want jurors ruling for or against somebody because they like dogs, or flunked out of college, or had an affair, or any other reason that, if we really thought about it, would realize shouldn't effect the outcome. 

Hopefully judges will pay more attention to all those Blackberries and Iphones in their courtroom.  Next time I try a case, I know I'll be monitoring TwitterLocal.

--Bradley A. Coxe is a practicing attorney in Wilmington, NC who specializes in Personal Injury, Medical Malpractice, Contract and Real Estate disputes and all forms of Civil Litigation.  Please contact him at (910) 772-1678.  

Back to the Future

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I wrote earlier about the ways people find attorneys.  Historically, for doctors and lawyers and other professionals, personal referrals and word of mouth was the best way for people to find lawyers, and lawyers to find clients.  There may have been just one or two lawyers in town and everybody knew who they were and felt they could always ask them a quick question.  When a local bar meeting I attended the other day filled and exceeded the largest courtroom in town, one older attorney shook his head and recalled the day when the local bar could just meet around a family-sized table at the local seafood restaurant.  Gradually, as the 20th Century wound down, legal care and health care became thought of more as a commodity, like toothpaste and lawn mowers, more than the personal character and expertise of a professional.  With that thought, assisted with some rulings by the Supreme Court, lawyers began to advertise with large yellow page ads, television and radio, and other splashy marketing.  While many, and probably the majority, of lawyers look askance at even the most tasteful television advertisement, they can’t deny that they work and may provide access to people who don’t know and who wouldn’t know how to go about getting a lawyer. 

One thing I like about the 21st Century information explosion is it still allows the wide access to a range of attorneys, but also gets back to an earlier model where you can pop in to the attorney next door and ask a quick question, or your neighbor can tell you about their attorney and experience.  Only now, anybody with an Internet connection can be your neighbor and every licensed attorney in the State has the ability to answer a quick question.  Email, firm websites, lawyer referral websites, Facebook, MySpace, LinkedIn, Twitter, and blogs are all social networking tools that people can use to reach, refer, and recommend lawyers and other professionals. 

One new Internet endeavor is the website Avvo.  Avvo’s primary service is to provide information on lawyers.  Avvo publishes information on every attorney in North Carolina that is available on the State Bar website and other places.  It then allows the attorney to “claim” their profile and add photos, videos, lists of accomplishments and other biographical information.  Even more interesting, is that it allows former clients and colleagues of the attorney to give them a rating.  Now, certainly you have to consider the source and recognize the danger of disgruntled former employees, unrealistic clients, or unscrupulous competitors gaming the system, but all in all, it is a valuable tool.  Avvo not only provides access to lawyers, it provides access to legal advice.  Post a question, and every attorney in every state Avvo provides service in can respond.  Attorneys that answer a lot of questions get recognized as a valued contributor.  Avvo takes all this information and comes up with a numerical rating that is assigns to every lawyer.  Some lawyers have been critical of Avvo since the numerical rating can be misleadingly low for attorneys who haven’t claimed their profile and provided all the information that Avvo allows.  It is a real-life equivalent of the old urban legend that said you would get 200 points on an SAT test just for signing your name.  Nevertheless, Avvo seems to recognize that their system isn’t perfect and continues to tweak it.  Other critics point to the free legal advice being answered by unqualified attorneys.  I would say again to consider the source, and especially be leery of any out of state attorney, or one who admits to little experience in the type of law you need advice for. 

Maybe we will never get back to the time where you could just knock on the door of Atticus Finch's office and get a quick five minutes of legal advice from somebody that you knew or had heard was good, but with the web 2.0, maybe we don't need to. 

--Bradley A. Coxe is a practicing attorney in Wilmington, NC who specializes in Personal Injury, Medical Malpractice, Contract and Real Estate disputes and all forms of Civil Litigation.  Please contact him at (910) 772-1678. 

How to Fire a Lawyer

I’ve previously written about how to hire a lawyer, so I thought I’d write a little on how to fire a lawyer.  First, take a look at your fee agreement you signed with your lawyer.  It may have some language on what to do if you want to terminate the relationship.  Generally, a client (or the attorney) can terminate the relationship at will.  However, as long as the lawyer has an attorney/client relationship with you, he is bound by the Rules of Professional Conduct toward you, even if you are ready to end the relationship.  So, you must be clear if you want to terminate an attorney.  You should send him something in writing telling him clearly that you wish to end his services and an effective date.  This should be sufficient to end the attorney/client relationship unless the attorney has made a filing with the court.  If the attorney has filed any documents with the Court on your behalf, such as an Answer, Complaint, or simple Notice of Appearance, it takes more than a letter to end the relationship.  The attorney must make a Motion before the Court to Withdraw.  Before the judge signs the order, he is still your attorney, even if you do not wish him to be and give him no authority.  This order will be granted on good cause, which could be as simple as either party no longer wishes to work with the other.  An attorney is not allowed to make the motion, and the judge is not allowed to grant it if it would substantially hurt the client’s case.  Usually, these motions would only get denied when it would be impossible to retain another attorney in time to try the case.  The attorney is not allowed to bill you for his time for this motion. 

Once you have fired your lawyer, keep in mind that most of their duties to you are ended.  You are responsible for deadlines and filings, so you should get another attorney or make sure you fully understand what you need to do immediately.  Your old attorney still has some duties to you under the Rules of Professional Conduct.  He cannot represent somebody against you in the same or a substantially related matter, unless you give written consent.  Neither can he use information that he gained through his work for you to your disadvantage.  In addition, the attorney/client privilege survives and he cannot reveal information relating to his representation of you. 

You should get your complete file from your old attorney or ask him to forward it to your new attorney.  Your old attorney may keep a copy for his records.  If you hired your old attorney with a retainer, he should return any amount that he has not billed for. 

If you disagree on the amount of any legal fees with your old attorney, you can participate in the North Carolina State Bar Fee Dispute Resolution proceeding. If the lawyer has the dispute with you, he is required to notify you at least 30 days before filing any collection action against you.  To participate, you will fill out a petition Your petition and attachments will be send to your old attorney for a response.   Should the coordinator find that your petition is not frivolous or inappropriate, he will assign the case to an impartial mediator who will try and get you and your old attorney to agree to a settlement.  The process is similar to mediation of a civil lawsuit.  

--Bradley A. Coxe is a practicing attorney in Wilmington, NC who specializes in Personal Injury, Medical Malpractice, Contract and Real Estate disputes and all forms of Civil Litigation.  Please contact him at (910) 772-1678.