This can make scheduling trials and motions difficult.

Here is a link to the names, adresses and emails of the TCAs and TCCs in North Carolina:

http://www.nccourts.org/Courts/CRS/Councils/DRC/Documents/MSCCourtContacts.pdf

Chris Nichols

My law school covered the event.

Chris Nichols
www.NicholsTrialLaw.com

At any rate, the 3 minute video below came through my email from a friend and I dared to click on it. It’s a little cheesy, potentially apocryphal, and it ends with an advertisement for what may even be a pseudo-religious employee training service. And yet, I’m reposting it even though it violates many of my cardinal rules for reposting. So why? Why would I re-post this?

First if all, even trial hardened lawyers need to be a little mushy from time to time, right? 

But more importantly, I think this video reminds us about how to effectively try a case and prepare witnesses. In the story, Johnny the Bagger manges to break through the mundane world of grocery shopping by connecting with his customers on an emotional level with a simple but genuine gesture.

How does this apply to jury trials? First off, most jurors come into the courtroom with a deep set of unrealistic expectations about trials and often a mindset that is “anti-plaintiff.” After decades of insurance company propaganda, Jurors often start out by thinking they can not trust the plaintiff or their lawyer because they “want something.” The Plaintiff’s lawyer has a monumental task of overcoming these perceptions while also juggling a long “to do” list of minimum evidence requirements.

In the pressure of trial, making sure we cross off our “to do” list, we often forget that we MUST connect on some visceral level with our jurors. Our clients can not simply clinically spout off a list of symptoms and economic losses. It is our job to find a subject that breaks through the perceptions and connects the jurors and the plaintiff on an emotional level.

I find that when I prep even the most stoic witness, there is usually one subject or another that can get them emotionally stirred up. I wish I could say it was always the same subject, but it never seems to be. Often it is how the Plaintiff perceives the emotional impact of the injury on the family. But that “a-ha” testimony never seems to come in the abstract. It only comes in story telling. It happens when I say, “Look, I hear you when you say this injury has impacted your family, but tell me one story, give me one example of how you figured that out.”

Once I hear that story, the story that makes my client get misty eyed, I never ask about it again, until trial. I don’t tell my client I am going to ask about it. I want my client to be raw for a moment, I want them to be emotional, I even want them to be (emotionally) messy and uncomfortable.

I want them to be real.

The video I watched this morning reminded me that being real is so important in what we do. How do you “stay real”? When do you let your guard down? As lawyers, we have so many roles to fulfill in trial that it is very easy to become mechanistic. What gets you out of that non-emotional role and shows the jury that this is not just another case for you, but a real person with real injuries?

If you can’t answer the question easily, watch this video, see if it makes you feel something, and then take a moment to figure out how you can translate that feeling.

Chris Nichols
www.NicholsTrialLaw.com

I don’t have a lot of time today to dig through this case, which is 50 pages long and denser than a fruitcake, but this is, in my opinion, and “extension” on Ahlborn. also, it addresses that tricky part of Ahlborn stemming from the “stipulation” of the meds and the “either/or’ aspect of the case as presented to SCOTUS.

Here is a good summary from Med Law Blog by Michael Cassidy: 

 http://www.medlawblog.com/archives/medicare-reimbursement-tristanis-blow-to-state-medicaid-agencys-third-party-liability-collection-practices.html

That said, where do Obama and McCain stand on Tort Reform? I’ve tried to present the information below from the most unbiased sources I can find.

John McCain on Tort Reform

I’ve included some links from traditionally conservative voices. The Club for Growth and an AMA related website. Most of the information is somewhat critical of McCain for not supporting tort reform “enough.” Because of the nature of the primaries, there is plenty of information about McCain and tort reform from conservative sources (most of which didn’t think he was tough enough on tort reform).

From: The Club For Growth:

Tort Reform

The American economy suffers from excessive litigation which increases the cost of doing business and slows economic growth. The Club for Growth supports major reforms to our tort system to restore a more just and less costly balance in tort litigation.

Senator McCain’s record on tort reform is generally positive. These votes include:

• Sponsored the Class Action Fairness Act of 2005 which sought to curb lawsuits by shifting suits from state to federal courts, by requiring judges to review all coupon settlements, and by limiting attorneys’ fees in non-cash settlements^[65]
• Voted for a bill that would bar lawsuits against manufacturers, distributors, dealers and importers of firearms^[66]
• Voted for a bill that would place caps on damage awards in medical malpractice suits against obstetricians and gynecologists^[67]
• Voted for a motion to proceed to a bill that would cap non-economic and punitive damages in medical malpractice suits^[68]

This generally positive record, however, is tarnished by Senator McCain’s sponsoring of and outspoken support for the Patients’ Bill of Rights,^[69] which encouraged an increase in the number of frivolous lawsuits filed against healthcare providers. He also voted against the Litigation Uniform Standards Act, which limited the conduct of securities class actions under state law.^[70]

And for what it is worth, here is a transcript from a Rush Limbaugh Radio Show where Rush refers to the above website in order to assess McCain’s willingness to implement tort reform. Rush seems to agree with the above- McCain has a good start but could do even better on tort reform.

If we assume that what a politician promises in one election they would support in another election, we can go back to 2000 when McCain was running against Bush in the Republican primary. McCain’s website then stated:

“John McCain has been a leading proponent of lawsuit reform at the federal level. He recently authored the Y2K law that will help limit potential frivolous lawsuits resulting from the Y2K computer problem while also protecting the rights of those truly injured to bring a legal action. The bill addresses the needs of businesses that may find themselves as both plaintiff and defendant, by providing incentives to fix Y2K problems, not rush to the courthouse.

“John McCain has and will continue to fight to reform our nation’s product liability laws. He supports reforms that would establish a time limit on liability for most products and cap damages on small businesses. He has also worked to provide liability relief to small businesses by sponsoring legislation that limits punitive damages and eliminates joint liability for non-economic damages for small businesses that employ less than 25 people.

“John McCain also supports small business relief from ‘Superfund’ liability. He believes the law imposes too severe a penalty on small businesses. He supports changing the regulations to limit the liability of small businesses to the amount of pollution they directly caused to a site, and no more.” From Freedom Works

Back to 2007. From a physician website, MedPage Today:

Arizona Sen. John McCain said tort reform is a top priority. He’s supported caps on awards and expressed some support for a loser-pays rule. “We cannot let the search for high-quality care be derailed by frivolous lawsuits and excessive damage awards. … Liability reforms should eliminate lawsuits for doctors [who] follow clinical guidelines and adhere to patient safety protocols.”

McCain laments increased costs stemming from defensive medicine. “In every other industry when technological advances are implemented, costs to the consumer decreases,” he told supporters in South Carolina. “This is not the case in health care. … I can’t tell you the number of tests that all of us in this room have taken just so that doctors won’t be sued for malpractice.”

And while this is not necessarily a “tort reform” issue, McCain supports changes to our health care system which would take most self-funded health insurance plans OUT of ERISA pre-emption.

The senator does suggest he would change current pre-emption provisions in the Employee Retirement Income Security Act, when he says he would “give states the flexibility to, and encourage them to experiment with: alternative forms of access; risk-adjusted payments per episode covered under Medicaid; use of private insurance in Medicaid; alternative insurance policies and insurance providers; and, different licensing schemes for medical providers.”

ERISA adjustment is also implied by his call to “build genuine national markets by permitting providers to practice nationwide” and his proposal to “allow individuals to purchase health insurance nationwide, across state lines, to maximize their choices.”Obviously, in North Carolina, taking self funded health plans out of ERISA would have a “pro-plaintiff” benefit because self-insured entities would be subject to NC’s anti-subrogation rule. Clearly, this is an unintended consequence for our state.

Finally, according to AllBusiness.com, McCain has publicly lamented increased costs stemming from so called defensive medicine, where doctors allegedly over-cautiously order multiple tests in the hopes of avoiding any mistakes or liability. “In every other industry when technological advances are implemented, costs to the consumer decreases,” he told supporters in South Carolina. “This is not the case in health care…. I can’t tell you the number of tests that all of us in this room have taken just so that doctors won’t be sued for malpractice.”

Barack Obama on Tort Reform

As a lawyer and constitutional law expert, Obama has spoken favorably of civil litigators at times, but has also been noted in the press to be somewhat more critical of “trial lawyers.” While campaigning for the Senate in Illinois years ago, he said, “Anyone who denies there’s a crisis with medical malpractice is probably a trial lawyer.” [Unsubstantiated info ahead] Furthermore, it has been noted that Obama voted in favor of caps on non-economic damages in medical malpractice cases when he served in the Illinois General Assembly. [NOTE: I pulled this quote from a business website doing a neutral review of the tort reform stances of the candidates. It was old (pre-nomination) and fairly balanced. Of course, there was no reference in the article. I’ve been questioned on this now, so I’m trying to verify the so-called votes. Frankly, I was suprised that Obama would vote for any type of cap given his Constitutional experience, so this could be my bad reporting compounding someone else’s bad reporting. Good thing I’m not a reporter!]

In 2005, Barack Obama voted for CAFA, the Class Action Fairness Act of 2005. Who voted against it? Hillary Clinton, Dick Durbin, Ted Kennedy, Pat Leahy, Joe Biden, Barbara Boxer and other progressive Democrats. The Class Action Fairness Act was strongly supported by business groups like the US Chamber of Commerce.

The ABA describes CAFA in this way:

In a nutshell, the Class Action Fairness Act has two principal parts. One set of provisions establishes new procedural and substantive standards applicable to class action settlements. Some of these merely duplicate (or add little to) existing practice under the Federal Rules of Civil Procedure, but others — such as new limitations on attorneys’ fees in coupon settlements and requirements that government officials be notified whenever a class action settles — are brand new.

In addition to the CAFA bill, Obama has taken a position on medical malpractice tort reform which focuses on improvements in patient care and lower error rates. In fact, Obama and Hillary Clinton co-authored an article in the May 25, 2006 issue of the New England Journal of Medicine, entitled “Making Patient Safety the Centerpiece of Medical Liability Reform.“

In conjunction with the publication of their article, Obama and Clinton introduced and co-sponsored the National Medical Error Disclosure and Compensation (MEDiC) Act of 2005, a bill that, in part, would have required hospitals to disclose errors to patients and would have also created a national patient safety database. The bill further proposed to create a Department of Health and Human Services program that would seek early compensation for patients and offer liability protections to doctors in exchange for their disclosure of errors and apologies. This legislation was never realized and died in 2006.

The Last Frontier: The Supreme Court of the United States

Other than the candidate platforms and positions, many would argue that the real “tort reform” is accomplished by appointing Judges who will take “tort reform” positions on legal cases. Justice John Paul Stevens (88 years old) and Justice Ruth Bader Ginsburg (74 years old), are both considered to be left leaning and potentially ready to retire in the next four years.

About the Supreme Court, Obama has said in a July 7, 2007 speech “We need somebody who’s got the heart, the empathy, to recognize what it’s like to be a young teenage mom. The empathy to understand what it’s like to be poor, or African-American, or gay, or disabled, or old. And that’s the criteria by which I’m going to be selecting my judges.”

McCain has said, “I tell you I will nominate only people who have a clear, complete adherence to the Constitution of the United States and do not legislate from the bench. That’s who I’ll nominate to the U.S. Supreme Court.”

This article will not attempt to futher address the issue of Supreme Court appointments, though obviously the candidates would presumably appoint Judges who agree with their general philosophy on the law. Whether that position is “pro-consumer” or “tort reform” will be for the reader to decide.

I’ll update this article as I find more information. Obviously, John McCain has a long voting record, so there can be much more analysis of his voting positions than of Obama. I may also try to take a look at the positions taken by Biden and Palin, although, again, Biden will have a much deeper record than Palin.

—-Chris Nichols

Nichols Law Firm

Not bad for a blog concentrating on one of the more boring topics in the world: liens and subrogation.

Here are the stats as of today:

Maybe I’ll set my summer intern loose on trying to make this Blog look slick and sophisticated…. probably not.

Chris Nichols

Allstate won’t produce records despite $25,000-a-day fine
By JOE LAMBE
The Kansas City Star

Allstate Insurance Co. lawyers made this clear Tuesday to a Jackson County judge: They will not produce key records for public view no matter how much he fines them.

And Judge Michael Manners has already fined them $25,000 a day since mid September — a total of $2.4 million and growing.

And last month the Missouri Supreme Court ordered the documents produced,

At issue are the so-called McKinsey documents, a kind of holy grail for plaintiff lawyers nationwide.

Plaintiff lawyers allege they show how Allstate set up a claims payment system in the 1990s that shortchanges clients while earning huge profits.

Allstate contends the 12,500 pages prepared by consultant McKinsey & Co. are trade secrets used to create company policies, methods and claims procedures.

Until this year, state high courts had agreed with the company. But last month the Missouri Supreme Court ruled that it must provide them in the case before Manners.

Allstate still refused. Tuesday’s hearing took place in part so Manners could consider whether to increase his daily fine.

The case stems from a car wreck seven years ago on Interstate 70. Allstate client Paul Aldridge of Hawaii ran into the back of a truck and severely injured the driver. He is suing Allstate for bad faith for refusing to pay the claim for years.

As for the documents, Ronald Getchey, a San Diego lawyer representing Allstate, told the judge: “We won’t produce them without a protective order (sealing them).”

He questioned whether the $25,000-a-day fine was legal and whether the judge’s order finding them in contempt was too vague.

Plaintiff lawyer Steve Garner of Springfield called those arguments “silliness.”

Getchey argued that the matter is uncertain and noted that the Missouri Supreme Court ruled that the company could return there if Garner tried to collect the $25,000-a-day fine, which would go to Aldridge.

Garner said he was more concerned about getting the documents and going to trial, but he may start collecting the fine for his client.

Getchey told the judge: “We have a principled difference we’re not able to resolve until somebody says what the law is.”

Manners countered: “I’ve already said that, but you just don’t agree.”

Then he set a July trial date, the first time Garner had available.

Getchey noted that was a long time at $25,000 a day.

“We shouldn’t get a $5 million fine because counsel is not available to try the case,” he said.

Manners conceded the point and said he may not increase the daily fine after all.

I’m always second guessing myself on when a minor becomes an adult and how that figures into Statute Of Limitations. In NC, a minor’s statute of limitations does not begin until their 18th birthday, and then runs for the same number of years an adult would enjoy. Of course, there are exceptions to this rule.

In NC, the general statute of limitations for personal injury is three years.

Here is the birthday calculator.

_______________

Chris Nichols
www.NicholsTrialLaw.com

Below are a few suggestions on ways to do this:

Easiest: Buy Adobe Acrobat Pro 8.0. It will “install” a little icon in your Word tool bar that allows you to “instantly” convert and document to PDF. Acrobat is also VERY useful if you scan a lot of documents and it is really easy to redact documents, add Bates stamps, etc. If you buy it online, “Google” “Acrobat Pro rebate discount” and you will probably find a “code” to enter into the Adobe site. I saved $125 this way. It’s retailing for $449 for one computer. http://www.adobe.com/products/acrobatpro/

Free: There are a lot of free downloadable programs that will convert documents to pdf files.

Here is one that comes well rated and is a safe download from www.cnet.comPrimoPDF

The biggest drawback with some of these programs is that they don’t have a lot of ways to “manipulate” your pdf files. For example, Adobe allows you to “extract” one page out of a stack of 100. Or “insert” one page. Things like that. But this one is a pretty decent way to get things into pdf format. There are other programs, but this one gets high ratings.

Mostly Easy and Free

Get www.openoffice.org. This software is just like Word, it is free, and it automatically converts to Adobe with a single Icon. Or, you can keep using Word, save your file, open it in OpenOffice, and then save as pdf. 

I’m cheap, but I do enjoy using the Adobe. You can also scan directly into Acrobat.

______________

Chris Nichols
www.NicholsTrialLaw.com

Why? Well, the insurance industry has effectively “gagged” anyone from telling the jurors why the case is going to trial. Typically, the reason for that is that the insurance company who pulls the strings on the defendant, WANTS the case to go to trial, because they know that for every case that goes to trial, 99 just give up, and the insurance company gets to pay less than what is “fair and just” as the rules require.

Here are some of the “hidden” rules and insurance practices that you only learn about after you’ve been hurt by someone else’s negligence.

You Can Not Mention the Insurance Company at Trial

Under no circumstances can a Plaintiff mention the word “Insurance” in trial, even though the person who is being sued has insurance. You cannot mention Insurance, nor can your witnesses, including the doctors, police or anyone else who may testify for you. If you do, the judge will grant a “mistrial” and we will have to try the case over again.

NC Rule of Evidence: Rule 411. Liability insurance

Evidence that a person was or was not insured against liability is not admissible upon the issue whether he acted negligently or otherwise wrongfully. This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness.

Insurance is available in at least 99% of all auto accident cases that go to trial. But, the insurance industry has lobbied the legislature so diligently that it has created a set of court rules that absolutely prohibits the lawyers representing injured people from telling the jury the truth that the little old lady in the defendant’s chair has had no choice in whether she is sitting there or not. She cannot settle the case even if she believes you deserve everything you are asking for.

The insurance company is completely in control of how much to offer the injured person, whether to settle the claim or not, and what they should contest in the lawsuit. So, even if the little old lady sitting in the defendant’s chair wanted to settle the lawsuit for the same amount as what the injured person is requesting, the insurance company won’t offer the money.

In North Carolina, the Plaintiff has virtually no right to sue an insurance company for improperly denying a claim or delaying the payment of what is due. Again, effective political contributions, and legal maneuvering by insurers have resulted in these rules.

Its cheaper to deny the claim than settle.

Believe it or not, insurance companies have saved Billions of dollars since the mid 1990s, by improperly denying claims, and otherwise forcing litigation by paying far below the jury verdict average to settle claims. Frivolous defenses to legitimate claims have resulted in an increase in litigation, against people insured by these companies. This is part of a deliberate claim handling program implemented by McKinsey & Company, the same consulting firm that set up Enron’s business model, at many of the nation’s largest insurance companies. See “Record Insurance Profits” Article

But, in jury selection, jurors often mention that if the injuries are real, the case should have settled with the insurer. That is exactly what the insurance company is hoping for. It doesn’t matter if they offered $0.50 on a claim worth $500,000. The jury will never know, because the lawyers are prohibited from ever mention the settlement negotiations during the trial.

McKinsey & Company counted on this when they told Allstate Insurance in the mid 1990’s to quit treating people with “Good Hands” and instead treat them with “Boxing Gloves.” When Allstate forced more litigation and posted record profits, the rest of the insurance industry followed their lead. It is now standard operating procedure in the insurance industry to spend multiple times what a reasonable settlement would be to fight the claim, simply to prove to injured people and their lawyers that filing a claim for injuries is more trouble than it is worth. Read a Transcript of Anderson Cooper’s Interview with one of Allstate’s Victims

That is because the end result is that most lawyers will not take the cases, and people will not file the claims themselves. These improper denials have led to a huge spike in bankruptcies in the United States, the leading cause of which is an inability to pay for medical bills. So, when jurors turn injured people away, everyone but the person at fault, and their insurer pay for the damage. Instead, the jurors take the financial burden themselves through higher taxes to pay for the bankruptcy. For more, see the article entitled “In Tough Hands” in BusinessWeek.

Honestly, I have no idea if this is “good” or not, but it averages out to about 30 new visits per day, so I think in general, it’s been a good thing.

For those very few that subscribe to an RSS feed, sorry I’ve not been posting a whole lot lately. I had a month long trial in Charlotte, back in March, and that kept me pretty busy for the two months before, and the two months after.

I’ll be posting some new lien resources in the next few weeks, and I’m working on a neat little software package that might just help the lawyers out there.

As always, send me your suggestions by email to nicholsatty@gmail.com, if you have them.

Chris Nichols
www.NicholsTrialLaw.com

Because I could not get all my materials printed in time, here are the materials for download:

The PowerPoint Slide Show in PDF format: 

Download nichols_preparing_your_client_for_trial_presentation.pdf

Here is the actual PowerPoint Show: Power Point

Here is the client trial preparation form:

Download client_trial_checklist.pdf

If you have an questions, don’t hesitate to email at nicholsatty@gmail.com or call me at 919.915.0212. Thanks for inviting me. You were a great crowd.

Chris Nichols
Nichols Law Firm

Here are some simple steps to follow to protect your client’s rights:

Read the Background and In-Depth Analysis of the Lien

Get caught up with the basics of the law by reading the article I wrote for the North Carolina Academy of Trial Lawyers magazine, Trial Briefs

• Download SEHP_Trial_Briefs_Article_by_Chris_Nichols.pdf (2430.4K)

Read the Current Law

Now that you know the background of the law, you need to catch up on the latest developments (like the law being amended) so read the posts on this blog listed in the left column in the category “NC State Employees Health Plan”.Or click HERE for a chronological (most recent first) listing of all the posts from this Blog covering the lien.

Get your Client’s Authorization

You need to have your client give the SEHP authorty to release information to you. This is essantially a HIPPA form for SEHP.

• Download SEHP_Authorization_Form.pdf (47.2K)(HIPPA essentially)

Request the Lien

Download the SEHP Lien request form.

• Download SEHP_Lien_Request_Form.pdf (23.0K)

You are on your way to negotiating the lien.

Chris Nichols
www.NicholsTrialLaw.com