The Verdict - The Lombardi Law Firm Blog
Here at the Lombardi Law Firm we add blog content that is personal to those involved in accidents. We write this way so you have an understanding of how we think and handle cases - your case. We invite you to call us if you think we can help you resolve your legal problems. We settle most of our cases, because we do the basic legal work necessary to understand the facts of your case. We offer on our website, relevant and concise information that you will be helpful to you as you get ready to settle or to try your case.
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Just because you have a case doesn’t mean you automatically can hire a lawyer.
It’s common for people to comment on blog posts posted by the InjuryBoard lawyers and to add to their comment something along the lines of “I’d never hire you as my lawyer.” Or, “You’re just another bloodsucking lawyer.” It seems people who comment in favor or the Taser are especially prone to being rude and insolent. I’m not sure why anyone would make such a comment other than to try applying leverage in changing the lawyer’s mind about what he or she has written or to dissuade readers from adopting the lawyer’s ideas thinking that just by saying they wouldn’t hire the lawyer he or she mustn’t know what they are talking about or a bad lawyer.
Nothing could be further from the truth. First, the business of lawyering is about controversy and good lawyers don’t shy away from it. Lawyers learn early on to advocate a position irrespective of what they might think or feel about a particular subject. Lawyers work constantly on improving their communication skills to be more effective in persuading adjusters, judges, juries and defense lawyers that their client’s case has merit and that the client is worthy of remuneration or compensation.
In the case I’m referring to the female commenter wasn’t happy with my being critical of a police officer that substituted the use of a Taser for effective police communication skills. What that commenter didn’t appreciate is that the reverse is actually true about whether or not I would ever be her lawyer. Like most lawyers I don’t take a client’s case just because they might think it’s a great case. Contrary to popular belief lawyers do have a say as to who they choose for a client. It’s not a one-way street nor is the client in complete control of the choice to engage a lawyer to handle any one case. We regularly turn down cases, some might seem good, but the client isn’t the right fit.
And that’s one of the most misunderstood points of litigation: If your client isn’t likeable chances are the jury won’t like them either and will examine the evidence wanting to find against them. This commenter needed a lot of work before any jury would find her even remotely worthy of compensation, and that’s a person I would never choose as a client.
Let me give you an example that is extreme but will clearly demonstrate my point. What if Charles Manson and Jeffrey Dahlmer were alive and being housed in the same prison, they escaped and were involved in an accident with a little old lady who ran a stop sign. If each secured an attorney to pursue a personal injury claim against the little old lady how many judges and jurors would feel any sympathy for them and award compensation? My guess is none, which clearly demonstrates my point about being a client or choosing a lawyer. Personal injury lawyers aren’t what people think we are and we don’t sit around dreaming about the next personal injury case that might walk across the threshold to our office. We are busy professionals who take our work seriously and we do turn away lots of injured people for as many reasons as there are obnoxious people in society. We aren’t stupid, we do understand the economics of this business and we clearly know how to recognize a good client from a bad one or else we’d be out of business.
So please understand Ms. Commenter, you’re correct that you would never be a client of mine, but not for the reasons you assume.
It’s reported that a former associate judge in Muscatine County, Iowa was ordered to serve five years in prison for his third OWI offense. He was fined $3,125 and will serve his time at Davenport’s work release center. His BAC was more than twice the limit.
Meanwhile a Burlington, Iowa man was sentenced to 5-years of probation for being the driver of a car that crashed killing the passenger. His BAC was more than twice the limit.
A Waterloo, Iowa police officer was arrested on a drunken driver charge after the Black Hawk County sheriff’s deputies responded to a car in the ditch. No breath or field sobriety test results were available. No indication in the available news stories that anyone was injured.
Coralville, Iowa police charged a Chicago man driving a U-Haul truck was stopped on I-80 with blood-alcohol content at 0.184, more than twice the legal limit. Children were in the vehicle and as reported charges of child endangerment are pending.
Driving drunk or under the influence has serious consequences as we’ve seen this past week with the Taconic Highway wrong-way driving accidents that I’ve been reporting on.
MADD, Mothers Against Drunk Driving have MADD statistics on their website including the link to the NHTSA’s statistics for 2007 Traffic Safety Annual Assessment – Alcohol-Impaired Driving Fatalities.
In 2007, an estimated 12,998 people were killed in alcohol-impaired driving crashes. – a decline of 3.7 percent from the 13,491 fatalities in 2006.
The fatality rate, per 100 million vehicle miles of travel (VMT), decreased to 0.43 – the lowest on record.
Thirty-two States had decreases in the number of alcohol-impaired driving fatalities in 2007, as compared to 2006.
Twenty-five States and the District of Columbia had increases in the number of alcohol-impaired motor-cycle riders (operators).
Alcohol-impaired motorcycle riders increased by 10 percent in 2007
Since 1982 there has been a steady decline in the number of deaths per vehicle miles traveled. The death rate has gone from a high of just over 1.20 to a low of about 0.50. That’s a good thing. We are moving in the right direction.
Civil versus Criminal Actions - The accidental shooting.
Several newspapers reported on an accidental shooting in Southeast Iowa in the town of Donnellson. Here is the situation. Two men were shooting targets with high-powered rifles. One was a 29 year old man, Levi Martinson. The other is James Easter, 31. These two men were shooting out from a second story window at Easter’s home. They were shooting with high-powered rifles at targets set by a pond. Martinson was holding his rifle by the barrel. The gun accidentally discharged shooting and killing him. The police investigated and concluded it was “an accident”. An autopsy was conducted and there is no mention of any ballistics tests being performed.
In this case the shooter is the person who later died. You can’t sue yourself, but if the gun were defective then the manufacturer might be legally liable. And of course if an autopsy, ballistics tests, blood splatter evidence and other tests showed the decedent was not holding the gun then we would have a very different case.
Let’s assume for the sake of this post that two men are out shooting targets and the gun one holds does accidentally discharge killing the other. The police, like they did in this case conclude it was accidental, is there a possible civil action.
Will the police conclusion of an accidental shooting preclude a civil action?
The quick answer is, no, it doesn’t preclude a civil suit and a finding of negligence. The police are looking at whether or not the actions by Martinson were a violation of the criminal law; not civil law. Criminal law and civil law are like apples and oranges. Every crime has elements to be proven. Elements are like ingredients in a recipe. If when baking chocolate cupcakes you leave out an ingredient the cupcakes won’t bake or taste right. Proving a violation of the criminal law is similar to following a recipe in food preparation.
Elements of Crimes and Civil Actions
The elements of crimes (the criminal statutes) are different, very different, than the elements of civil rules of conduct. One element that is very different for crimes and negligence (torts) would be intent. A person must intend to do the act and for most crimes the act intended is one that will or is likely to result in death, injury, fright or the deprivation of another’s property.
In this case of the shooting that resulted in death the likely criminal considerations could be murder or manslaughter. To commit the crime of murder you have to have intention to do an act that is likely to cause death of another person. Manslaughter is doing something really dumb, like actually pointing a loaded gun at someone. Criminal intent is vital to a successful prosecution. Intent isn’t involved as an element in negligence actions. In this case the man was simply holding the gun by the barrel and it discharged. There was no intent to do harm.
Now let’s look at civil laws. A jury’s evaluation of what the shooter did might consider other facts, like what a reasonable man might have done in this instance. Inquiry into exactly how the gun was being held, were they fooling around, was there another way to hold the gun and had it every accidentally discharged previous to the day of the fateful events. Experts would evaluate what actually caused the gun to fire without a finger on the trigger. If it has to do with gun maintenance then who owned the gun and if it were properly cleaned and maintained would it not have discharged? Everyone has a duty to not act unreasonably in a way that causes injury or death to another person.
Burdens of Proof
The burdens of proof, the standard by which a case must be proven, have to do with the amount of evidence needed to be produced, is different in criminal and civil cases. Due to the presumption of innocence the burden of proof in criminal cases is much higher.
Think of the burden of proof as a level of proof required to demonstrate to Judge and jury that your side of the argument on any given point is more persuasive than the your opponents. Don’t confuse the burden of persuasion for any given element with burden of proof. The burden of persuasion remains on the party whose duty it is to prove any one element.
The burden of proof placed on a prosecutor to prove the defendant has violated the criminal law is beyond a reasonable doubt. On the other hand civil law violations are about negligence or fault and the burden of proof is a preponderance of evidence. A preponderance of the evidence is the greater weight of evidence. Think of preponderance of evidence as the scales of justice; just tip the scales and you win. But with the burden being beyond a reasonable doubt and you have a much tougher job in putting on enough evidence to make the elements of the crime true beyond any reasonable doubt.
And that’s the difference. Yes there can still be a civil case by the estate of the dead man or his wife and children.
At the end of every month we always gather up the litigation news from around the world to keep you abreast of the world of litigation. Here is the news from March 2009.
Yesterday Apple announced a new program called Ripe that removes the Windows operating system from p.c.’s and replaces it with Ripe, a secure program that viruses can not host.
In response Microsoft released a security update called Shade, which prohibits Ripe from disengaging the latch code algorithm that it considers propriety in nature.
In other action, Adobe Systems Inc. (ADBE) issued a security alert for Acrobat users, an earnings warning and filed suit in New York Superior Court, Western District asking the court to enjoin Apple from releasing Ripe, alleging its virus protection programs would suffer irreparable financial harm. Wall Street traders showed support and Adobe’s stock price rose on the DOW.
The FDA today issue a recall of Bayer’s sale of the longest running billion dollar drug claiming there is no scientific research to support Bayer’s advertised claim that aspirin has any provable medical benefits.
In patent litigation the heirs of Einstein joined Russia’s energy Czar, Igor Sechin in the law suit against the major oil companies claiming they are owed royalties from all sales of energy related products as a result of Einstein’s discovery of the equation for energy, EMC2. The Russian Court is scheduled to hear the Defendants joint motion for summary judgment, the week after it writes the decision. Kremlin hard-liner-in-chief encouraged by the recent IPO of OAO Yukos said, “What the government of Russia did with OAO Yukos should be a model for developing nations around the world. Just look at Venezuela. A hands off approach to the private sector will always encourage further investments and spurn development. ” Mikhail Khodorkovsky, was unavailable for comment.
In other copyright infringement litigation the Institute of Mathematics in Greece sued the parent companies of Bakers Square and Village Inn Restaurants claiming the use of the phrases Pi Day, I love Pi and Pi a-la-mode infringe on it’s copyright of the number 3.1415926535897932384626433832795028841971693993751. On March 14, 2009 the Court heard arguments on the defendant’s motion to dismiss. Counsel for the Defendants, A decision isn’t expected before the end of the summer. American Blue Ribbon Holdings, LLC, the holding company of Bakers Square issued a statement claiming this litigation is “un-American and frivolous.”
A derivative action against AIG by its shareholders sued the company claiming the CEO and Board of Director’s employment contracts included golden parachutes and were illegally entered into. Testimony is expected from Paul Onzi, Sr., the former CFO and distant cousin to Bernard Madoff, who was charged with fraud over subprime mortgage exposure. Mr. Onzi worked out a deal. In a document reviewed, the allegations are made the contracts included a provision removing any requirement of good faith and fair dealing. In other news Andrew Cuomo, the assistant A.G. for the State of New York Attorney General charged executives at AIG with indecent exposure for their role in the subprime mortgage investments.
Lance Armstrong’s fractured clavicle will not keep him out of the Tour de France. In a move intended to maintain Team US Postal Service, Armstrong lured Shawn Johnson away from Dancing With The Stars to replace him while his shoulder mends. The announcement was made on Armstrong’s blog, On Tour With Lance. Johnson was not available for comment, but sources close to Johnson revealed she is excited about the challenge that lies ahead. When asked if Johnson had commented about her early departure from DWTS the Valley High School students said, “She wanted to kick some Texas a___ but felt committed to riding for Team USPS in the mountains.” Word has it Armstrong’s cycle is being retrofitted with booster pedals. The producers of DWTS said an announcement will be made soon hinting that Miley Cyrus was leaving the Disney Channel.
The American Medical Association has joined Allergan, Inc. (AGN) in a suit filed by Real Housewives of NYC stars in defending the use of botox on middle aged women. Kelly Killoren Bensimon, a member of the cast who is not a plaintiff disclosed the women were asking for an injunction against further use of botox injections saying, “Botox is killing the tissue cells that make facial muscles contract to form facial expressions resulting in marital discord.” The suit claims women all over the world are being irreparable harmed by their husbands not being able to see facial expressions allowing them to know when their wives are angry rather than just bitchy. They claim they are being ignored and that further diverted attention will cause irreparable harm. The NY Court sitting in New Jersey issued a temporary restraining order against the maker of botox. Allergent’s stock price rose after hours making the CEO smile, although no one could tell he was happy.
In other litigation Jillian Ryrcoft sued ABC, the producer of The Bachelor for breach of contract when ABC cancelled her contract for the upcoming show claiming she wasn’t capable of being a contestant. ABC produced a medical record indicating Jillian’s tear ducts had been injured in a car accident when the air bag deployed striking her face and causing myocrytosis, a rare but debilitating condition not allowing a person to sob. Fans expressed outrage threatening to wait out a season.
The ATRA, The American Tort Reform Association, contributed $6,000,000 USD to Senator M.O. Buyme, senior senator from Texas. Senator Buyme introduced a bill removing all tort reforms over the past 5 years in a bill that would make all litigation on a contingent fee basis and require all attorney fees to be at 99% of the recovery. Senator Buyme was quoted as saying, “We figgued, if you can’t beat em why not join em. This bill will do more than any previous measure to stop litigants from even thinking about seeing an attorney.” A spokesperson for the American Trial Lawyers Association, now known as “Consumed and Abused Lawyers for Just-ass!” said they were happy with the measure and would contribute a significant sum to the Senator’s Campaign war chest now having a balance of $700 Billion USD. The AMA declined to comment.
And finally President Obama announced he is not actually black. When asked on 60 Minutes how he liked being the first black U.S. President, he stated: “Actually I’m not black. I’m neither white or black. I have a black father and a white mother, a fact which makes me neither white nor black.” A stunned Mike Wallace sat with his mouth gaping open and Obama continued: “Mike, didn’t your mother teach you the colors? I learned my colors in kindergarten. Yes we can!” A spokesperson for Western Hills Elementary School in West Des Moines, Iowa said, “President Obama is correct that white is the absence of color and black the blending of all colors. Or is it the other way around?” The Color Professor, J.L. Morton painted a different picture by saying, “Just know that color matters.” College students across the United States afraid that financial aid for minorities would come to a halt for students of mixed race parents have formed Black and White Color Committees for the purpose of reforming kindergarten lesson plans. Miss Black USA and Miss Black Iowa, the organizations that run beauty pageants for single black women, both denied any of their contestants were gray or grey. A spokeswoman for Miss Black Iowa stated: “Our website is designed only in back, white and grey colors to avoid anyone really knowing.” In protest caucasions across America vowed to turn off their color television sets and instead play chess.
For those of you that will find something offensive in the last news entry just know I voted for President Obama.
Under a court order since November of 2004, the Glenwood Resource Center of Glenwood, Iowa, a state-run home for the disabled, has experienced one death per month for the last thirteen months. Ironically, they quote Aristotle for their "quality quote," which reads, "We are what we repeatedly do. Excellence, then, is not an act but a habit."
For those who are unfamiliar with the recent articles written by the Des Moines Register's Clark Kauffman, the facts of this tragic series of incidents are these:
- Glenwood Resource Center has been operating under a court order, enforced by the United States Justice Department since November of 2004. Glenwood was given three years-until October of 2007-to comply with minimum standards of care. Glenwood was given another year to comply with the court order when deadline was extended to October of 2008. The October 2008 deadline passed with no action against Glenwood.
- Unable to complete many of the duties listen in their job descriptions because they were not licensed within the State of Iowa, the two previous medical directors had either no experience in running a medical center or had a lot of experience in filing lawsuits and providing questionable care.
- Over the past 14 months, Glenwood has employed nine unlicensed psychologists who answered to yet another unlicensed employee, the psychology administrator, for a total of 11 unlicensed staff members. However, none of the nine psychologists can be reprimanded because Iowa law only requires private, for-profit psychologists to comply with state licensing requirements.
- A lawsuit was filed by Georgette Alexander of Oskaloosa after her son, a Glenwood resident, died when he was not properly monitored following a choking incident.
- Iowa Governor, Chet Culver, who refused to make public a multitude of e-mails among his staff relating to the death of the Glenwood resident, now claims to be concerned and expects changes to be made.
This series of unfortunate events raises eyebrows as well as questions. Why are both Governor Culver and the U.S. Department of Justice allowing the extension of deadlines? Within forty-eight hours of the October 2007 deadline another Glenwood resident died due to inadequate nursing care. Additionally, why has there been no adverse action taken against Glenwood for failing to meet the October 2008 deadline? Why would Glenwood follow any deadline, when it is apparent that there are no repercussions when they are failed to be met?
Another issue, which leads to problems at Glenwood Resource Center, is the fact that Section 154B.3(3) of the Code of Iowa requires only private, for-profit psychologists to obtain a license within the state of Iowa in order to practice.
In another recent article by the Des Moines Register, Governor Culver claimed that the Glenwood center is making progress in implementing the 2004 court order. One would certainly hope so; the 315 residents at Glenwood have been waiting four years.