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

Are We There Yet?

Just recently the family and I loaded up the Family Truckster and headed north past Richmond, Washington (which some in my family refer to as "Occupied Virginia"), Philadelphia, New York, and finally to Old Lyme, Connecticut to visit for a few weeks, members of my wife's family. From the time we left my driveway to 14 hours later, I heard the phrase every time I tapped the break, "Are we there yet?" How do they know this phrase, I think? I never taught it to them, and it is one of the biggest kid cliches out there, yet it always happens.

In a similar vein, although without the whining, one of the first thing clients, and particularly personal injury clients ask is "How long will this take?" Unfortunately, I can give the kids in the Truckster a more definite answer (and a juice box) than I can my clients. For the personal injury and car accident cases, after you get accident reports and do a scene investigation, the hold up is medical rather than legal. The client has to get to a point in her medical treatment that she has gotten better, or her doctors are reasonably certain she is as good as she will get. The reason is that before you start filing a lawsuit, you want to try and settle with the insurance company. They are not going to give any money based on what you "think" will happen or what "might" happen, they need to at least know you have enough evidence to get to a jury trial. When you do settle, you can't go back later. So if you accept a settlement from an insurance company and a month later your doctor tells you you need surgery, you can't go back. (This is another reason why personal injury attorneys warn injured people not to settle right away with an insurance company, even if they want to just "get it over with.").

So that process may take a few weeks or a few months, it just depends. Then, after you get the report that the client has reached maximum medical improvement, you have to order the medical records. This can take awhile, and usually I'll have to make multiple requests before the creaky bureaucracy of a hospital or a slammed office manager of a family physician can get me my request. Expect a delay of at least 30-60 days for the records.

After that, you make a demand, and it will take another month before you get to a settlement with the insurance company or decide to file a lawsuit. (that's assuming they don't ask for additional medical records that you don't have). When you file a lawsuit, there is a flurry of activity getting the Complaint prepared and then you wait for the Defendant to answer. In North Carolina, the Defendant has 30 days, but count on 60 because they always get an extension to answer. You'll again have long stretches where it seems nothing happens along with spikes of activity--answering discovery, the client's deposition, perhaps a motion for Summary Judgment. Until finally, a jury trial. I usually tell my clients that in the areas I practice, count on roughly a year from the date of filing the Complaint, to a jury verdict. In the rare cases where there is an appeal, that could drag on another six months to a year.

One thing I do try to remember is that while I know what needs to be done right away, what can wait, and when a case is "moving" or "stalled." My clients don't have that knowledge. Also, while I have a lot of cases, each of my clients only has one. They want to be assured that I am actually working on their case as quickly as I can, and very few clients are unreasonably demanding of my time. The best thing that works for me is to let them know when something is going on, and, more importantly when something isn't going on and I'm waiting for medical records or discovery or an Answer. The second best thing is actually take their phone calls. A five minute conversation about the only case they have is something each client deserves, even if it does sometimes feel like you are answering "Are we there yet?"

--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. 

What to Wear

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I'm getting ready for a jury trial next week, and one of the pre-trial steps I take is getting the client prepared. You'd think that this would primarily be going over the facts of her case and the strategy involved, and you'd be right, but one aspect of that is her presentation in front of the court and the jury. Other clients have told me how everybody they know thinks they are honest and likeable and salt of the earth and they may be right. I tell them that one of the few things I'm sure of in a jury trial here is that none of those people will be on the jury. The jury will meet them for the first and last time in court so they have to convey those things that all their friends already know, in a short and limiting environment. One of the ways that a client can make a good impression is simply by what they wear.

My client in my trial next week was a little concerned. She is a horse trainer, and her idea of dressing up is usually her best pair of jeans. I used to tell clients to dress like they were going to church, until I had one client in a car accident trial show up in a three-piece suit, looking better than I was! I quickly had him lose the vest and coat. I didn't want the jury confused as to who was the lawyer and who was the client. So now I tell them to dress a level or half-level down from my suit. For men that usually means long pants and a collared shirt. I don't have anything more specific to tell my female clients, but they usually can get the idea.

The key in my opinion is to treat court with respect. Jurors are usually not crazy about taking time out of their lives for this civic duty, they at least want the participants to act like it is serious business and they are grateful for the opportunity to have their case heard. Dressing for respect goes not only for my clients, but for anytime you are heading to court, even if you are heading to the courthouse to see about a traffic ticket. Don't wear a hat; don't wear flip-flops; don't wear a T-shirt (especially with curse words printed on it); don't wear a tube top; the judge will not be impressed by the tattoo at your panty line. Most judges will try to be fair but if you dress like you don't respect who they are, and what the court is, you are starting the game already behind.

--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. 

There is a Lawyer in My Mailbox!

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If you have ever been in a car accident in North Carolina, you may have been shocked at the amount of mail you suddenly get. One of my clients recently got into an accident and brought into my office stacks of letters and documents from attorneys, some hundreds of miles away, asking to represent her in her personal injury lawsuit. Other than a few chiropractor letters for accidents, or mortgage refinancing letters every time you buy some property, I don’t know of any other business or profession that relies on this type of targeted direct mail.

These attorneys (and chiropractors) are able to do this because accident reports are public records. In years past, attorneys or sometimes a paid third-party service would hang by the courthouse or police station getting copies of the accident reports as they came in. Thanks to the Internet, it is even easier now with the reports readily available. In my hometown of Wilmington, the reports are available here. Accident report in hand, the lawyer or his staff can send out the canned letter or package to arrive at your door almost before you get home from the Emergency Room. This practice may get a bit harder soon as there is a new bill in the NC House that would allow a person in a accident to opt out of receiving any solicitation from that report.

One reason why lawyers use this type of direct mail solicitation is because the North Carolina State Bar, the organization that regulates the profession, has strict rules about an attorney communicating his services to a non-client. The Bar is concerned about maintaining the professionalism of attorneys, especially in today’s climate and stereotypes of the “ambulance chasing” lawyer. However, the Bar can’t totally ban all types of advertising because the U.S. Supreme Court has ruled that would violate the 1^st Amendment and Free Speech. That is why lawyers are, with some parameters, able to advertise on TV, radio, billboards, and other places. Even more restrictive is direct solicitation where an individual is targeted for the lawyer’s services as opposed to a TV ad that is aimed at anybody who tunes in. Most direct solicitation of non-clients of lawyers is prohibited by the Bar, with the exception of the direct mail. Since direct phone calls, door-to-door, emails, and other direct solicitation is out, direct mail is the only route available. Even that is restricted; you’ll notice the big disclaimer on all that correspondence saying “THIS IS AN ADVERTISEMENT FOR LEGAL SERVICES.”

While I assume that these direct mail advertisements are effective for the lawyers who take advantage of them in finding good clients, are they effective for the potential client to find a good lawyer? Those ads are certainly a good starting place, just like yellow page ads, or legal websites, but don’t solely rely on them to choose your attorney.

--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. 

The $10,000 Question

I was reading in the local newspaper about a lawsuit recently filed. It was a slow news day, and this particular suit had an interesting twist on a regular car accident case, so somebody thought it might make a good story. The reporter was fairly accurate, especially when she couldn't get either side to talk, but one "fact" that she reported was wildly inaccurate, but she had no idea why. She reported that the amount of relief the injured person was seeking was $10,000. I know exactly where she got that information; she went to the courthouse and pulled the Complaint. Nothing wrong with that, its a public record. The facts were laid out nicely for her and she reported those correctly as facts, but at the end of the Complaint she got in trouble. She read in what is called the "prayer for relief" that the Plaintiff was seeking a judgment in excess of $10,000. 

Now that attorney did not put in $10,000 because that is what he wanted, or what he thought the case was worth, or what he thought the other side would give him. Strangely enough, usually what you can ask for a trial, or what the jury can give you, has nothing to do with anything you ask for in the Complaint. In fact, some types of cases, negligence and punitive damages, do not allow the Plaintiff to put in an amount, only if it is more or less than $10,000. Even when it is not required, the instinct of an attorney is not to give away free information on what he thinks the value of his case is, especially as it may change as the lawsuit progresses. In addition, the Complaint is usually not even allowed to be read to a jury. The reason for the $10,000 figure is to determine which North Carolina court your civil suit goes.

North Carolina Courts start with Magistrate Court. After that, the main trial courts are the District Court and Superior Court. These are the courts where cases are actually tried with a jury or judge making a decision on the facts in the case. Beyond the trial courts are the appellate courts, the North Carolina Court of Appeals and the North Carolina Supreme Court. Those courts only decide cases that come up on appeal for errors of law.

District Court and Superior Court, on the civil side (as opposed to criminal cases) split their cases based on the amount in controversy. Anyone claiming an amount for $10,000 or less is tried in the District Court, and anything over $10,000 is tried in the Superior Court. Unlike Magistrate Court, whose judges  can't award anything over $5000, a jury or judge in District Court can award more than their "limit" of $10,000 if they find the facts and evidence support it, and the Superior Court can award less.

So the next time you read that somebody is asking for "more than $10,000," you'll know what you don't know--how much they really want or will get. 

--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.  

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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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.