The Lombardi Law Firm Blog

Top Ten Reasons by Mountaineers For Not Giving Back the Engagement Ring

After the break up why should I give back the engagement ring?

How can I help with my workers' compensation or car accident case?

Why is the bus company photographing the bus at the accident?

Why do I need a lawyer?

Why can't I get a lawyer to take my case?

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.

Driver Safety: The snow didn't cause the accident!

The headline reads: Ice and snow blamed for fatal accident.

Published February 15, 2009 11:34 pm

This is one of those little things that will drive a lawyer to distraction. The precision of the English language being what it is and isn't when there is a logical inconsistency I tend to perseverate about better word choices. This is one of those cases. So on the Lombardi Law Firm blog I wrote:

Many know how headlines like this drive me crazy because of how misleading they can be. Snow and ice don’t cause accidents; drivers do. Drivers who fail to slow down and drive according to the conditions and how that affects maintaining control of their car, truck or motorcycle.

So when a crash occurs like the one reported from Albia, Iowa where a 19-year-old Zach Murray is killed by the car he was a passenger in, sliding sideways, crossing the center line and crashing into the oncoming Melissa Thompson from Ft. Leavenworth, Kansas; it isn’t the snow and ice that get blamed but the driver who was probably driving too fast for the conditions.  In this case more than likely Thompson and the Estate of Zachary Murray will have claims against the driver, Palen. Hopefully she has insurance to cover their damages.

The Verdict

I've written here on the InjuryBoard previously about weather conditions can't be the cause of accidents and I remain steadfast in my belief that the driver is to blame.

See, Mother Nature sues news sources, for once again libeling Old Man Winter!

And, What is negligence? As a juror how do I analyze facts when negligence is the issue?

And then, Driver Safety: Does snow and ice on the road excuse the driver’s negligence?

We remain vigilant on this war of words that instill or attempt to adopt new concepts of fault that relieve those who are responsible from being held responsible. If we want our children to be responsible then we must also hold to firm lines of responsibility.

Workers Compensation: 43 year 66 year old mill worker killed

You’d think that working on the job for 43 years and being 66 years old would be a time for retirement, but in the case of Bill Drake it wasn’t. This man died at work when he fell onto tracks and a wood-loaded crane running on those same tracks struck and killed him. This was certainly a sad day at the International Paper Mill in South Augusta, Georgia.  A well respected member of the mill workers he certainly will be missed. We wish his family well.

Follow the first link to see photos of Mr. Drake.

For a birds-eye view of the paper mill follow this link to see the National Geological Survey aerial photograph.  The site is Wikimapia. The train tracks can be seen going through the center of the photographic image of International Paper.

How to successfully take a deposition.

This post is all about the 8 Simple Rules For Deposition Testimony. Have you ever wondered how to successfully testify at your deposition? Clients are usually nervous before being “deposed”. Are you? They want to do a good job but don’t have experience with being deposed or have had a bad experience with the process. Depositions are not like having a conversation around the breakfast table over a cup of coffee. They are formal conversations where a court reporter will take down all questions and answers or comments. You really need to be ready for the issues involved in your case. Your lawyer should sit down with you well in advance of the deposition to prepare you. Don’t just assume the lawyer will do what I’m saying to prepare you. Not a lot of lawyers take enough time to properly prepare their client for this very important event. There are right and wrong ways to answer questions. If your lawyer prepares you by meeting with you ten minutes before the deposition and advising, “Just tell the truth.”, that’s not sufficient. The process is more complicated than just telling the truth. I’ve never met a client that won their case in a deposition, but I’ve met some who’ve lost the case because of something they said or didn’t say in their deposition.

In the next few posts I'll discuss the how-to's and the do-not's about being deposed. But first let’s go over the 8 Simple Rules For Deposition Testimony. The rules are pretty simple, but executing them is not like having a normal conversation.  In this first post I’ll state the rules, then tomorrow after you’ve had time to memorize these 8 simple rules, I’ll test you by asking one simple question, and your answer will demonstrate whether or not you understood the 8 simple rules.  Okay ready?

Here are the 8 SIMPLE RULES FOR DEPOSITION TESTIMONY -

1.  Always tell the Truth.

2.  Listen to the Question.

3.  Make sure you understand the Question.

4.  If you don’t understand the Question ask for clarification.

5.  Before you answer, pause and think about your answer.

6.  If you can answer with a “Yes” or “No”, answer with a “Yes” or “No”.

7.  If the answer requires more than a simple “Yes” or “No”, keep your answer concise, brief and to the point.

8.  Don’t offer any information.

Do you understand these 8 Simple Rules For Deposition Testimony?

Then come back tomorrow for the One Simple Question.

Locating a person whose gone out of business

Family Law – Broken Heart – Must I Give Back the Engagement Ring?

Question: My daughter's 'ex' future father-in-law is asking her to return her engagement ring over a year after his son broke off the engagement. Is she obligated to return it--name removed--My daughter and her ex fiancé lived in Florida for almost 2 years at the time they became engaged--name removed--She now lives in Iowa--name removed--He lives in Pennsylvania.

Answer: I recall being very young at one time, so young that I was not yet ready for school. Afternoons my mother would have my lie on the couch to nap while she watched afternoon soap operas. When she laid down with me I’d draw her eyebrows and the outline of her face, which always brought a smile to her face and her request that I go to sleep. Still today I can hear the melody of The Guiding Light, As the World Turns and The Edge of Night. Today, some might call it child abuse but as training for this question even law school fell short. [Not really but I wanted to say it did because many afternoons I missed nap to catch up on the latest romance gone bad and during law school there wasn’t time to much else but read cases. Thanks Mom. Sorry Dean Calkins!]

Let’s assume Mr. Special sues the Jilted Bride-2-Be in Iowa, since that is where she lives. Of course he hasn’t sued her and each is now living several states apart so it’s probably safer to assume he never will because the cost of travel and to hire a lawyer would soon overtake any recovery he might get from a Judge in either Iowa or Florida. He can’t sue the Jilted-One in Pennsylvania because she’s never lived there and isn’t there now. Since neither live in Florida that venue isn’t likely to be convenient for either so Iowa is the likely target for venue.

Now you see Mr. Special’s Papa is intervening and playing the emotional card, so that’s a clear indication they have no intention of actually suing. Hint-hint!

Yes I’m a lawyer and some where in this blog post I’m required to tell you what the law requires. This being as good a time as any let me tell you the law of Iowa. In the case of John Fierro vs. Janna Hoel, 465 N.W.2d 669 (Iowa App. 1990) the Iowa Court of Appeals took up this issue and decided as a conditional gift the ring must be returned if the marriage was never to be. The Court found an engagement ring is given in contemplation of marriage as a conditional gift. And if the marriage never happens the ring must be returned to the donor.

Some times you know life just isn’t fair. And as we lawyers soon learn the law isn’t about fairness but justice. And justice isn’t about being fair but about applying the common and statutory law. So in this case the bride-2-be being the donee of a conditional gift is required by law to return the engagement ring to the donor because the marriage didn’t take place.

I do recall an editorial in the Des Moines Register that was written in response to this case. The Board acting as a guiding light advised the not-to-be bride to instead throw the ring in the Des Moines River. I wouldn’t advise that but then again I have to wonder what the court would say if before being sued the ring were lost, stolen or sold? After all there is a point when delay causes the Court to apply the doctrine of laches, an ancient concept similar to a statute of limitations but having it’s origin in common law and equity. Equity being the inherent power of the Courts to exercise discretion to do what is right when delay causes one party to be prejudiced.

“LACHES, DOCTRINE OF - Based on the maxim that equity aids the vigilant and not those who procrastinate regarding their rights; Neglect to assert a right or claim that, together with lapse of time and other circumstances, prejudices an adverse party. Neglecting to do what should or could, have been done to assert a claim or right for an unreasonable and unjustified time causing disadvantage to another.”

It’s an interesting notion in that if a wedding were called off and the jilted party having purchased a dress and the other items associated with putting on a wedding, were to have to sell the ring to pay for those expenses, then would the delay cause the Judge to find laches a proper defense to the action for return of the ring? At what point must a person inform the person they proposed to, that they were having second thoughts? And if they delayed in so informing them, would the wedding expense being incurred during the delay create a cause of action against the jilter? I’m not sure, but it sure is an interesting thing to think about. The Guiding Light, as it was called prior to 1975, aired for 15 minute episode. Man could you learn a lot about life in just 15 minutes. Maybe we should bring back the 15 minute format. Oh it’s just a thought.

“Laches is derived from the French 'lecher' and is nearly synonymous with negligence.”

Depositions - 1 Simple Question

One Simple Question

Yesterday we discussed the 8 Simple Rules For Deposition Testimony. Today we ask the 1 Simple Question.

Do you understand these rules?  Then let’s see how well you can apply them.

Answer this Question: “Do you know what time it is?”

What is your answer: _________________. Write it down.

If you answered yes or no then you clearly understood the rules and violated none of them. But if you wrote in the actual time you failed miserably and obviously you didn’t understand the question or the rules. Why you ask? It’s simple.

First of all I didn’t ask you “What time is it?” I asked, “Do you know what time it is?” That is a question that can be answered with a yes or a no. And you didn’t answer with a yes or a no. So first you didn’t listen to the question or you didn’t understand the question in which case you failed to ask for clarification and both are a violation of the 8 Simple Rules. Besides that you violated the rule about offering information as well. My guess is you didn’t take a moment to think about the question before answering it and so you violated that rule too. Need I go on?

You see being an honest witness requires you to answer the questions being asked not the questions you want to answer. It requires active listening. It requires thinking and not just reacting. Listen and then literally answer the question that is asked. If the lawyer wants to ask you for the time they will ask, “What time is it?”, not “Do you know what time it is?”. There is a big difference. So listen and follow the rules. And answer the questions 1 simple question at a time.... more on this tomorrow.

The Deposition - Being a deponent.

I promised my readers more on taking a deposition and the Eight Simple Rules© along with the One Simple Question©. Do you recall the Eight Simple Rules©? For the sake of clarity I’ll repeat them again.

Deposition Testimony Rules:

1.  Tell the Truth

2.  Listen to the Question

3.  Make sure you understand the Question

4.  If you don’t understand the Question ask for clarification.

5.  Pause and think about your answer.

6.  If you can answer with a “Yes” or “No”, answer with a “yes” or “no”.

7.  If the answer requires more than a “yes” or “no”, keep your answer concise/brief.

8.  Don’t offer any information.

Now let’s talk about the mistakes clients make during depositions and the tricks defense lawyers employ to make you slip up. The list is quite long so this will be an ongoing series. Remember I’m not sitting around all day blawgging, I do have to work.

A deponent is a person; not a disease. If you’re answering questions in a deposition then you are the deponent. A deponent is under oath, meaning they have administered an oath to you. An oath means you swear to tell the truth, the whole truth and nothing but the truth. As in a deposition at trial you will also be under oath. That’s important because if your answers appear different at trial than they were in the deposition the implication is that you’re not being truthful. Here is what you will hear at trial. “At the deposition your answer was different, so should I assume you were telling us the truth then or now? How can I tell when you’re telling the truth?” As you can well imagine this would be an uncomfortable situation to be in so remember the Eight Simple Rules© and learn to follow them.

Rapid Fire – Rapid fire is a questioning technique used to trip the deponent up on rules two through eight and to make your answer appear to be less than trustworthy. You will recognize this technique is in use when answering the lawyer’s questions makes you light headed or out of breath. Rapid fire is what it sounds like. The next question comes immediately after you answer the previous question. There is little time to think. The deponent starts to feel anxious, and reacts by “firing back” at the lawyer.

But what deponents have to realize is that seldom can they win this exchange. The lawyer has had weeks to prepare his/her questions. They are professionals and some, like me, have taken more than a thousand depositions. During rapid fire it won’t take long before emotions take the place of reason and the Eight Simple Rules© are forgotten.  I don’t care if you “meant to tell the truth” but because of “the lawyer’s questions” you became emotional and lost your head. Follow the damn rules.

So how do you recognize this technique and how do you combat it? Well it’s pretty simple. Go back to the Eight Simple Rules© and review them. Remember, listen to the question, then make sure you understand the question, followed by if you don’t understand the question ask for clarification; and then pause and think about your answer.

Let’s stop there today because this is enough. Don’t be fooled by the question or the person asking the questions. Leave your emotions at the door. No one cares that you just want to get this over with and to be treated fairly. The lawyer employing “Rapid Fire” he isn’t here to treat you fairly, he’s here to represent his client’s interests. And if you don’t understand that point you’re making a big mistake. There are only two reasons for him/her to speak with you and neither is good for your case. You’re being asked questions so they can figure out a way to pay you nothing or less then you deserve. So read the Eight Simple Rules© and follow them.

Client Toolbox - Educate yourself with reading blogs

Injuryboard works, even from Des Moines, Iowa.

The InjuryBoard is a collection of attorneys from across the country who work daily to educate the public concerning the issues that affect the justice working men and women receive in the civil court system. We strive to educate you so you can protect yourself, your spouse and family. At the Des Moines regional blog we have been working this month to discuss issues affecting food safety and while Megan Roth, a University of Iowa journalism graduate has been writing and posting about the current issue, I’ve been distracted with one news item after the next that seems to have my immediate attention.

The American Bar Association has picked up our blog and we are doing very well with readership. Listed under the “Tort Law” section we are currently holding the number five position for readership. Not bad for a solo practitioner and journalist from West Des Moines, Iowa. Join us and the other InjuryBoard attorneys as we invite you to comment with your own experiences whether good or bad.

ABA Blawg Directory: Tort Law

• Popular
• Alpha Listing

Popular

Based on the number of times our readers have visited our descriptions of these blawgs.

• RedState

Political and legal news, commentary and analysis, with a conservative focus.

• PrawfsBlawg

PrawfsBlawg says it is "just some friends trying to get the arguments right." They post observations on legal news, law and culture.

• InjuryBoard.com

InjuryBoard.com is a network of accident lawyers throughout the country who blog about personal injury news.

• Law and More

"Deconstructing what happens in law." A particular focus on consumer law and class-action litigation, and lead-paint litigation in particular. Some posts amount to professional-skills pep talks, and others recap recent episodes of Boston Legal.

• Des Moines Personal Injury Lawyer

"Insightful and at times provocative analysis of Iowa personal injury law. You may not agree, but you can hardly argue the content is thoughtful and focused on the rights of the common working man and woman. A commonsense approach to law issues."

• Structured Settlements 4Real

Information, news and commentary about structured settlements and settlement planning.

• TortsProf Blog

Covers news, legislation, reform moves and other issues related to torts.

• Overlawyered

This blawg "explores an American legal system that too often turns litigation into a weapon against guilty and innocent alike, erodes individual responsibility, rewards sharp practice, enriches its participants at the public's expense, and resists even modest efforts at reform and accountability."

• The Bizop News

"Misleading advertising law: due diligence for income earning opportunities."

• Marler Blog

"Providing commentary on food poisoning outbreaks and litigation."

• Class Action Defense Blog

Covers the Class Action Fairness Act, class certification, employment law, the Fair Credit Reporting Act, the Fair Debt Collection Practices Act and multidistrict litigation.

• Cruise Ship Law Blog

Cruise Ship Law Blog is "dedicated to cruise passenger and crew safety, seafarer conditions, maritime law and all types of injuries at sea."

• Illinois Nursing Home Abuse Blog

Covers Illinois nursing homes and information for nursing home residents, family members, ombudsmen, resident advocates, elder law attorneys and nursing home staff.

• Biker Law Blog

This blawg was created to provide information to the motorcycle and biker community, as well as to provide general California personal injury and family law Information for all. You will find biker and motorcycle legal articles, news, links, safety tips and more.

• E. coli Blog

"Surveillance and analysis on E. coli news and outbreaks."

• Louisiana Law Blog

The Louisiana Law Blog has "insight and information on Louisiana law, litigation and legal culture."

• The Brockovich Report

"My objective is to find, share and post information about things that I've discovered and believe you'd want to know about. I travel the world doing lectures and research. My goal is to keep in constant touch with people and share information from the road. This blog is part of our journey together."

• New York Personal Injury Law Blog

The New York Personal Injury Law Blog has information on New York personal injury law, medical malpractice, the civil justice system and cases of interest.

• Mass Tort Litigation Blog

Covers news, issues and trends related to mass torts, including the latest on litigation involving tobacco, Vioxx, asbe