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Posts Tagged ‘Law’

Traffic Court in Maryland

April 22, 2014 1 comment

Disclaimer:  The following is my personal rant, not that of my firm, partner, family or anyone else.

As many of you know the person who hit and killed my sister in law while she was riding her bike is contesting the traffic tickets she received. last Thursday we along with about 100 people showed up to show support for my brother in law and his family. The trial was continued based upon the representation of the Def. attorney that one of the witnesses feared for his safety. There was no evidence produced, the attorney did not testify as to claims and the witness was not present to testify as to the supposed fear. Based upon these claims the judge granted a postponement. There were 3 other witnesses in the court room (2 police officers and another independent witness who stopped following the crash) who apparently felt no such fear.

The defense attorney is running for state’s attorney in Maryland and he posted his version of what occurred on his Facebook page (which I have set out in part below along with my comments in bold).   I wonder if his platform includes if you are scared to testify I will let you slide and we will not prosecute anyone just forgive them.
“The Whitney DeCesaris trial involving the bicyclist fatality was indeed postponed yesterday; however, it was solely caused by the palpable anger in the room exhibited by certain persons in the cycling community, which intimidated a key witness in this case, causing him/her to fear for his/her safety.”

There was no anger in the courtroom, in fact it was probably one of the quietest I have seen in my almost 30 years of trying cases across the country. The intimidated “key witness” is identified by Mr. Simmons (the Defense attorney) in his post. There was no evidence that he was intimidated other than comments made to the Court by the defense attorney supposedly as an officer of the Court. I say supposedly because the term “palpable anger” describing the room must have been another room. If it were as he suggests the Judge would have taken steps to clear the Courtroom, she did not. The judge would have requested the bailiff to instruct the gallery to quiet down or be removed, she did not (probably because there was no anger and no one speaking). There was a comment made by Mr. Simmons that the witness heard people yelling his name. That is true. It was Mr. Simmons calling to see if he were present. So we have a representation by Mr. Simmons that a witness feared for his safety.
“However, when certain forces are at work to disrupt the process by threatening and intimidating witnesses, parties, and officers of the court, this system of justice becomes just like every other system of injustice in the world today.”

Apparently the palpable anger in the courtroom escalated to “forces at work to disrupt the process by threatening and intimidating” not only witnesses (actually only one if you believe Mr. Simmons to the entire system. I am surprised the SWAT and riot squads were not called out to quell this uprising in traffic court.
“This tragic event has brought two families together in the most horrible of circumstances. Mrs. DeCesaris, a nurse, stopped and immediately rendered care to Mrs. Cunningham, assisting Dr. Richard Garden with CPR. Dr. Garden took charge of her care while Mrs. DeCesaris administered mouth to mouth and attempted to manage Mrs. Cunningham’s bleeding until emergency services arrived. Dr. Garden and Mrs. DeCesaris were the only people who engaged, doing all they could to save Mrs. Cunningham’s life. Assuming for just a second, that this accident was not preventable, has anyone thanked Mrs. DeCesaris for trying to save Mrs. Cunningham’s life? Plenty have demonized her. Dr. Garden for his good deed has been intimidated by the some cycling advocates, because his testimony supports the premises that this accident was not preventable. Has anyone ever said thank you to Dr. Garden?”

Mrs. DeCesaris would never have needed to render care to Mrs. Cunningham had she not struck her bicycle from behind. How would you propose the thank you be worded Mr. Simmons? As to Dr. Garden (whom I never mentioned by name but you for whatever reason felt compelled to put his name out for all to see – a witness whom you claim was threatened ) I have actually spoken to him on two occasions and thanked him for all he tried to do and told him the family thanked him as well.
“Regardless of what history will ultimately reveal to us about this incident, one thing is sure: healing only begins with forgiveness. Without forgiveness, there can be no peace. Forgiveness is indeed for the forgiver and not the person receiving it.”

Forgiveness is generally the result of someone asking to be forgiven not where the person continues to blame everyone (anyone) else for their actions. With that said, I have forgiven her, but that does not mean she should not be held responsible for her actions in as anyone else.

I am sure it is just a coincidence that the delay will probably push the trial past your primary election for State’s Attorney, but look on the bright side, if you don’t make it in politics you can always become a fiction writer.

 

Jury Duty

February 16, 2011 3 comments

When I was kicking around blog topics with different people, I was provided with several great topics. The one which gets today’s effort is jury duty. Why you ask, did jury duty rise to the top of all the other topics? That is easy. A Judge suggested I should write about jury duty. Judge wins. Jury duty is it.
Jury duty is really an honor and privilege that we have. Yet it is constantly being attacked. You have no doubt heard the arguments about how a “crazy jury” awarded x amount of money on some case. But never do you hear from the actual jurors who heard the evidence and came up with their verdict. I am a firm believer in the jury system and have found they usually end up doing the right thing. Understand this is from one of those rare lawyers who has actually won and (gasp!!) lost cases at trial. Based upon the ads I see and talk around the Courthouse, I may be one of only a handful of lawyers in the Fort Bend, Brazoria, Harris, Galveston, Matagorda, Waller, (or for that matter all of Texas and the U.S.) to have ever lost a case. It is also strange that some people believe that juries should be done away with completely in personal injury cases where a person’s livelihood is on the line, but firmly believe in juries deciding whether a person should spend the rest of their lives in jail or be executed. Maybe it’s just me but I believe a jury panel which could decide if I live or die is capable of deciding if the person that hurt me in a wreck should pay for my damages.
So—let’s talk about jury duty.
Why did I get this notice (summons) and what am I supposed (have) to do?
State law sets the process for selecting potential jurors. In Texas, each county gets a list from the State of people who are registered to vote, have a Texas driver’s license or a Texas identification card. You do not need any special skills or legal knowledge. People are then chosen randomly from that list. You may or may not get additional information with the summons such as a questionnaire requesting some basic information to fill out and bring with you or mail back ahead of time. Some counties have I-Jury Online Impaneling (it is the selection process – not being made part of a wall) and if your county has that you can respond on line and potentially save yourself a trip to the Courthouse.
What if I just don’t answer summons?
Bad idea. You can be subject to a contempt action that can result in a fine of not less than $100.00 or more than $1,000.00. (Texas Gov’t Code – 62.0141)
Ok. Got the summons and I will show up. Does that mean I will be on a jury?
No. There are still several things which have to be determined to see if you are qualified to serve as a juror. The first step outlined above gets you in the selection hopper; the following are REQUIRED to qualify you as a juror.
1. Must be at least 18 years of age;
2. Be a citizen of Texas and of the County in which you are to serve as a juror;
3. Must be qualified to vote in County in which you are to serve as a juror – do not need to be registered, just qualified (you could legally vote if you wanted);
4. Be of sound mind and good moral character;
5. Be able to read and write;
6. Not have served as a juror for six days during the preceding 3 months in County Court or during the preceding 6 months in District Court;
7. Not have been convicted of, be under indictment or other legal accusation for, misdemeanor theft or a felony.
If you meet all the above requirements, you are qualified to serve as a juror, but there are some exemptions which you may claim. You may choose to serve even if any of the following apply, but you are not required to:
1. Over the age of 70;
2. Have legal custody of a child younger than 10 and serving on the jury would leave the child without adequate supervision;
3. Are a student at a public or private secondary school;
4. Are enrolled and in actual attendance at an institution of higher learning;
5. Are an officer or an employee of the senate, house of representatives, or any department, commission, board, office or other agency in the legislative branch of government;
6. Have served as a petit juror in the county during the 24 month period preceding the date you are required to appear for this summons. (Only if county has at least a population of 200,000)
7. Are the primary caretaker of a person who is an invalid and unable to care for himself (does not apply to healthcare workers); or
8. Have been summoned for service in a county with a population of at least 250,000 and you have served as a petit juror in the county during the 3 year period preceding the date you are to appear for jury service.
Jury Selection:
If you made it through the qualification process and have no exemptions (or have chosen not to take them) that still does not mean you will actually serve on a jury, but you will be able to be on a jury panel from which the actual jury will be selected. The selection process is usually a day or less, but in some rare cases can take several days. You and your fellow panel members will be taken to a courtroom where the judge, lawyers and parties will be able to ask questions to determine if you are the proper person to serve as a juror in that particular case.
Juror Oath:
At some point in the process all prospective jurors are given an oath in which they swear or affirm to tell the truth when answering questions. If there is a question which you would be embarrassed to answer or is extremely private, you can ask to go up the judge to give your answer, but you need to answer it truthfully. I usually ask jurors if they would want someone like them being on a jury which was judging a case where they were the party. Not answering questions truthfully and completely generally can not only be grounds for contempt, but may actually get you on the jury. I realize that some people try to get out of jury duty by lying. You don’t have to lie. Tell them the Judge and lawyers the truth and you will probably scare them enough to not select you.
Jury:
Make it through the process and are selected to be on the actual jury. Don’t be upset. You should be proud that you were one of only a handful of citizens who were chosen out of the entire county to be able to decide a case which will impact the lives of all those involved. Thank you for taking your responsibility and duty seriously.

Health Care Subrogation

Subrogation (in an injury claim) is where your group health coverage can recover the money they paid out for your medical care caused by the actions of someone else (the other driver in a car wreck). Sounds fair doesn’t it. Why should your insurance have to pay for the bills caused by the person that hit you. Let’s look at that.
You have paid premiums for that coverage to provide you health care when you need it regardless of how you were injured or became ill. You are now in a wreck and need medical attention. You go to your doctor, one referred by the hospital or by a friend. When you go to your appointment (or when you call in) they ask you what happened and you tell them you were in a car wreck. At this point there are doctors our there who will tell you they don’t treat car wreck injuries. If you hurt your back lifting something no problem, but a injured back from a car wreck, sorry no. This despite the fact that you have group coverage to pay the bills. (This will be the subject of another blog) You get a doctor who agrees to see you and they take down your insurance information. Let’s call it Metua. You pay your co-pay and they send the bills to Metua. Metua pays at a “contracted” rate which means the doctor gets significantly less than their normal rate. You get better and are ready to try and settle your case. You have $9,000.00 in medical bills and $1,500.00 in lost wages so you sent the insurance company of the person that hit you a letter saying I am ready to settle give me a call. They send you an offer of $3,500.00. What??? You have $10,500.00 in medical bills and lost wages not counting all the stuff you missed out on and pain because of the wreck. You call up the adjuster and ask how they came up with that crazy number. They tell you. Metua send them a subrogation notice which set out all of your medical care and bills for the wreck, but because of their contract the actual amount they paid was only $1,500.00 of the $9,000.00 so they offered you that plus a $1,000.00 for the lost wages (they thought you should have gone back sooner) and the rest was for pain and suffering. They even offer to send you the information that Metua sent them. You get it and it shows your itemized treatment with the billing from the date of the wreck. Not just the amounts, but who the doctors were and the treatment. Your personal medical information was just handed over to a person who represents a person who hit you in a wreck. You call Metua and they explain they have a right under your policy to subrogation and they were just protecting themselves by letting the other party know how much they were owed. You ask if they will cut down their claim so that you can at least clear something (after all your co-pays). They say no our policy allows us to get every penny back even if you have an attorney (not necessarily true).

So the upshot of this is your health care company provides personal medical information to someone other than you. They paid your doctor significantly less than their normal rate. They undermined your case by providing information to the other side which they were not entitled to. Essentially you have paid premiums for all those years so that the person who hits you gets the benefit. In Texas our legislature approved this with the “paid v. incurred” argument that only the amount actually paid (the reduced rate) should have to be paid by the other party. So if a drunk hits you, he gets the benefit of all those years of premiums you paid for health insurance. Is that right? What do you think about your health insurance giving out your private information to an opposing party? The information they provided could include information not related to the wreck at all (prescriptions, other treatments, etc.) but just happens to be after the date of the wreck.

Nicole Lalime 13 year old killed by drunk driver

A year ago today, December 16, 2008, a drunk driver, Mr. John Winne hit and killed a 13 year Nicole Lalime as she got off her school bus in front of her home. After hitting her he left her in the street and fled the scene.  The world is a sadder place because of someone who decided to drive drunk.  You can help stop drunk driving.   Take the keys or take a cab, but don’t allow drunk driving.

Texting while driving – death and jail time

November 3, 2009 2 comments

The New York times is doing a series on the dangers of texting while driving. The story is about a young woman who was sentenced to prison for causing a wreck which killed another young woman. Here is the link:
http://www.nytimes.com/2009/11/02/technology/02texting.html?pagewanted=1&_r=1&src=tptw

Cell phones in School Zone

October 29, 2009 7 comments

Texas passed a law which went into effect September 1, 2009 which makes it illegal to use a wireless communication device in a school zone in Texas.  There are some requirements:

There must be a sign at beginning of school zone informing drivers that using a wireless communications device is prohibited and the operator is subject to a fine.

When does the restriction apply?  As the school zones are only in effect during specific hours, the same should apply to the cell phone ban.

Exceptions:

If you are stopped you can use your cell phone in a school zone or if you are using a hands free device.

You know the law, what do you think about it.

One question is does using hands free really make a difference in your attention to make it acceptable to use in a school zone?

Based upon simulator studies conducted at the University of Utah they determined there was no difference in the cognitive distraction between hand-held and hands-free devices.   (National Safety Council)  That being the case why should one be banned and the other allowed.  Should both be banned? What is the harm in not using your cell phone while driving in a school zone?

Does it really make a difference if you are on a call while driving.

Two studies found that drivers who use cell phones are four times more likely to be in a crash while using a cell phone. (1997 New England Journal of Medicine examination of hospital records and 2005 Insurance Institute for Highway Safety study linking crashes to cell phone records).

The issue as I see it is that the risk of hitting a child in a school zone and potentially destroying their life as well as your own (could you really forgive yourself if you hit a kid while talking on a phone) is worth putting the phone away for a few minutes.

Let me know your comments.

Also as a follow up to the last blog about texting while driving, try the interactive test at the new york times site:

http://www.nytimes.com/interactive/2009/07/19/technology/20090719-driving-game.html

Next time cell phone messaging and texting – Drivers under 18

 

The Tort Reform Lie

October 7, 2009 2 comments

Tort Reform ads are once again appearing on the radio and news. The argument is that we need to limit damages to protect nursing homes and doctors and lower costs. Texas passed limitations on damages years ago and I have yet to see costs go down. The tort reform crowd argues that damages should be limited to prevent frivolous lawsuits. That is a just a lie. The only time the limitation applies is after a case has been tried and a jury has determined not only that there was negligence on the the part of the nursing home or doctor, that their actions harmed the plaintiff and the damages are in excess of $250,000.00. The effect of the tort reform is to allow those who have already been found to have harmed someone to only pay for a part of their harm. This is after the plaintiff has provided expert reports and had a judge rule that there was enough credible evidence to even get to trial. The truly frivolous lawsuits are thrown out at the first step when the judge determines there is no credible expert opinion to support the claims. Tort Reform is simply an excuse to escape taking responsibility for the actions which hurt others.