New Mexico Injury Attorney Blog

The use of social media by jurors has been a hot topic in the courts over the last couple of years. The explosion of smart phones, mobile access to the internet and social media is causing new and unique challenges to the courts, particularly in the case of jury trials.

Over the past year, there have numerous cases challenged and some overturned due to juror use of social media during trial. Juror use of the internet and social media during trial raises a host of problems for both sides of the case. The possibility of undue outside influence on jury verdicts is of great concern to all. Unfortunately, the pace of technology has far exceeded the pace of measures by the courts to protect against it's abuse.

Among the traditional instructions from the court to jurors is that they not discuss the case with others outside the case. This is to protect against improper influence on the juror during a trial. This might arise when the juror has a friend or family member with some experience or expertise with the subject matter in the trial. For instance, a juror might ask an uncle who has retired from the law enforcement or the practice of law about the case. Other times, the juror will call on family members who have engineering expertise or think they do to discuss a products liability claim.

There are countless ways this problem could arise in the past. However, this problem at least would not affect the many trials that lasted only one day, such as most misdemeanor criminal trials and many small civil trials. With the growth of the internet and social media, this too has changed with jurors able to do a little of their own research or even run the case by their Facebook panel of advisors during a break or at lunch. The problem becomes far worse with longer trials and more time to reflect, conduct online research and enlist input from the panel. In short, the problem of outside jury influence has grown exponentially with the growth of mobile technology, the internet and social media. And the problem may be harder to solve than one might think.

Courts have begun to routinely instruct jurors not to do their own research, not to email, text, or post information related to trial during the trial. This has not deterred many. In fact, the problem is so bad that California was compelled to pass a law making it a crime punishable by up to 6 months in jail for using the internet during trial for research or posting trial related topics on any social media site such as Twitter, Facebook, MySpace and LinkedIn. California believed this law necessary due to blatant disregard of judges' instructions by many jurors.

The most obvious question that then arises is whether such laws will prevent jurors from engaging in these prohibited activities during trial. A recent survey points to some challenges the courts will face even with the tool of contempt and jail to deter these practices at their disposal.

Several sources have noted a recent McCann survey of 6000 people aged 16 to 30 found that 53 percent of respondents would rather lose their sense of smell than access to social networking. Perhaps these folks simply do not appreciate the importance of the sense of smell. Or the survey may have had some design issues that would lead to such surprising results. Several sources raise this issue in noting that 67 percent of those in the survey would also give up their genitals for a Klondike bar, also a surprising result in most circles.

Notwithstanding the possible glitches in the survey, the results do not bode well for future jury deliberations. With the rise of texting, smart phones, mobile access to the internet and social networking, one does not need to look far to see the problem ahead. For many parents, one need look no further than the back seat to see the hold that this technology has on society. For everyone else, just take a peek at the driver in the next car.

Collins & Collins, P.C.
Albuquerque Attorneys

A recent case from the 10th Circuit Court of Appeals illustrates the importance of full disclosure of preexisting medical conditions in a personal injury case. Failure to fully disclose preexisting conditions can result in serious discovery sanctions including dismissal.

The case of Freddie v. Marten Transport involved a 2006 auto accident. The plaintiff, Jerry Freddie, claimed injuries to his head, neck, back, shoulders, and extremities. He claimed that all of these injuries along with associated fatigue and sleep problems were associated with the 2006 accident.

The defendant requested discovery from Mr. Freddie. Included in the discovery request, as is the case in every personal injury action, was a request for disclosure of preexisting injuries and prior medical records. Mr. Freddie denied any preexisting conditions and failed to provide the lawfully requested prior medical records.

In fact, Mr. Freddie had been in a relatively recent rollover accident in 2003 in which he suffered similar injuries. In addition, it appeared from the medical records that the defendant was able to obtain that Mr. Freddie had not fully recovered from those injuries.

Despite the discovery of the prior auto accident and preexisting injuries, Mr. Freddie persisted in his refusal to provide medical records or even to acknowledge the prior injuries. The district court judge ordered Mr. Freddie on several occasions to provide the records. Mr. Freddie refused and even invoked his 5th Amendment right against self-incrimination when asked about prior chiropractic treatment. Oddly, Mr. Freddie argued that the did not recall the injuries while arguing at the same time that he did not want to implicate himself in insurance fraud through his testimony on the chiropractic treatment.

The district court finally dismissed the lawsuit for Mr. Freddie's ongoing discovery abuse. The 10th Circuit recognized that dismissal is a rather extraordinary sanction stating that "While discovery-related sanctions are generally permissible to protect the integrity of the judicial process, a sanction of dismissal is reserved for violations 'predicated upon willfulness, bad faith, or some fault of [the party] rather than inability to comply.'"

The Court set forth five factors to be considered by a trial court before imposing a sanction of dismissal: (1) actual prejudice to the defendant; (2) level of interference with judicial processes; (3) the culpability of the party; (4) prior warning of possible dismissal for non-compliance; and (5) the efficacy of other lesser sanctions.

Interestingly, the court said that there is no rigid test more of less leaving it to the discretion of the trial judge. In this case, the court more or less ignored the last two factors. The trial court did not warn of dismissal in advance. Rather, the 10th stated "[o]nce a witness swears to give truthful answers, there is no requirement to warn him not to commit perjury or, conversely to direct him to tell the truth." Citing Chavez v. City of Albuquerque, (10th Cir. 2005). Nor did the court set forth any possible alternative sanctions short of dismissal. The court stated instead that dismissal has been affirmed for lessor discovery offenses and that this case fell within the range warranting dismissal.

Preexisting conditions, prior injuries and even prior related accidents can most definitely hurt the value of a personal injury claim. In fact, it should come as no surprise that a defendant should not by virtue of a later accident pay for injuries suffered in a prior accident. It is not uncommon for plaintiffs to hide preexisting conditions from not only the defendant but from their own attorneys. As this case illustrates, concealing preexisting can be disastrous.

As much as you think it might hurt your case, and as much as it might actually hurt your case, concealing preexisting injuries will kill your case. Even if it does not get dismissed outright, juries are not kindly disposed toward dishonest plaintiffs. If you have a personal injury claim and you have preexisting injuries, discuss them with your attorney. An experienced personal injury attorney will address them directly in a way that minimizes the damage to your claims.

Collins & Collins, P.C.
Albuquerque Attorneys

Plaintiffs in personal injury cases, like anyone else, sometimes come with some baggage. On occasion, a plaintiff has been convicted of criminal offenses in the past. The question that most plaintiffs in this situation will want to know is whether these past legal transgressions can be held against them in their personal injury case.

Most plaintiffs in this position would rightly argue that a criminal conviction in the past has nothing to do with an auto accident today. They are partly right. The past criminal conviction is not particularly relevant to the determination of liability and/or damages in a personal injury action.

However, a past conviction though seemingly unrelated to the accident may come up with issues of credibility. For instance, if liability or damages are disputed, and a case goes to trial, a jury is basically asked to make determinations of credibility. In other words, who should the jury believe, the plaintiff or the defendant?

The rules of evidence regarding impeachment address these issues. Rule 609 of both the Federal and New Mexico Rules of Evidence address the admission of convictions for the impeachment of witnesses at trial. In other words, the rule addresses whether evidence of conviction is fair game for showing or more accurately suggesting a witness is lying. The rules apply to all witnesses including the plaintiff and the defendant.

Rule 609 provides that evidence of convictions can be admitted to attack the credibility of a witness was convicted of a felony or a crime of dishonesty if the court finds that its probative value is not outweighed by its prejudicial effect. Notably, evidence of a felony is more likely to be excluded than a misdemeanor crime of dishonesty.

To the chagrin of many witnesses, including plaintiffs in a personal injury case, crimes of dishonesty cover a lot of ground and include some seemingly innocuous offenses. Certainly, "crime of dishonesty" would encompass fraud, forgery, theft, burglary, perjury, false tax returns and so on. It also includes petty shoplifting among other petty offenses.

Many plaintiffs do not particularly want to share these embarrassing details with their lawyers. Any plaintiff would be well advised to assume that the defense attorney is going to do a thorough background check and will discover any and all past criminal convictions. The only thing worse than having this evidence admitted against a plaintiff is having the defendant show to the jury through cross examination that the plaintiff has lied about the past convictions. Now the plaintiff is both a crook and a liar in the eyes of the jury.

The best approach is typically for the plaintiff's attorney to address these issues with the jury from the start. It allows the evidence to be presented in the best light to the plaintiff. Most importantly, it takes the wind out of what will surely be penetrating cross examination and a blustery closing argument impugning the honesty of the plaintiff.

Collins & Collins, P.C.
Albuquerque Attorneys

In litigation of any kind, often the most time-consuming, expensive and frustrating task is discovery. Many times, parties and or their attorneys simply will not cooperate in the discovery process. The 10th Circuit Court of Appeals in Lee v. Max International has ruled that failure to abide by the rules of discovery can result in the dismissal of a claim.

In the Max International case, the plaintiff failed to provide lawful discovery. Some of the missing discovery items were tax returns which are readily available and easy to provide. The defendant was forced to file several Motions to Compel Discovery, each time resulting in an order from the district court directing plaintiff to provide the discovery. In fact, there were two such orders both of which the plaintiff failed to follow. The district court dismissed the plaintiff's claims.

The 10th Circuit affirmed the dismissal stating that "Our justice system has a strong preference for resolving cases on their merits whenever possible, but no one, we hold, should count on more than three chances to make good a discovery obligation."

The plaintiff did not deny that it had failed to abide by the court's orders. In fact, the plaintiff had issued a certificate stating that all discoveries had been provided. The 10th Circuit Court of Appeals took particular exception to the false certificate filed by the plaintiff.

The Court further ruled that the district court will be allowed considerable discretion in the issuance of discovery sanctions, including the rather extraordinary sanction of dismissal. Citing Charles Alan Wright in support of the district court's broad discretion, the Court stated "the district courts must have latitude to use severe sanctions for purposes of general deterrence."

The Federal Rules of Procedure are intended to ensure "the just, speedy, and inexpensive determination of every action." The Court recognized that this is far from the reality but recognized also that allowing parties to repeatedly violate orders from the court would most assuredly defeat those purposes.

Max International will certainly not stop discovery abuses. However, the Court's suggestion that the district courts have wide discretion in doling out even extreme sanctions for discovery abuse should at least cause some pause for those parties and attorneys that engage in such practices.

Collins & Collins, P.C.
Albuquerque Attorneys

In auto accidents cases, one might expect that the driving record of the negligent driver would be fully admissible at trial to help show that the person was at fault for the subject accident. Unfortunately, this is not always the case.

For instance, pre-accident driving records are not admissible to show the driver was negligent in the current accident. However, it may be admissible for other purposes such as a negligent entrustment claim. A negligent entrustment claim most often arises where an employer allows an employee with a bad driving record to drive a company vehicle. The company may then be held liable for any injuries or other damages caused by the employee under a negligent entrustment theory.

Post-accident driving records, no matter how bad, are often inadmissible at trial. Neither past driving behavior nor future driving behavior can be used to show the person was negligent in the current auto accident. Neither may future driving be used to prove a habit of bad driving under New Mexico law. Finally, unlike past driving behavior, future driving is not admissible on a negligent entrustment claim.

In order to show negligent entrustment, the company must have known of the employee's negligent driving habits. The company may be held to knowledge of the employee's prior driving behavior. This is the case even if the company does not have direct knowledge but could have discovered the driving history through background checks.

On the other hand, an employer cannot be imputed knowledge of bad driving habits based upon future driving behavior. Thus, without more, the employer will not be held liable under theories of negligent entrustment for the employee's actions in causing an auto accident. The employer may very well be liable on a number of other grounds, but not by way of negligent entrustment.

In short, though one might expect the driving behavior of a negligent driver to be most relevant evidence to prove fault, there are fairly strict limits on when and for what purpose driving behavior is admissible at trial in a car accident case. The injured person may simply have to rely on other evidence of fault than the driving history or driving habits of the other driver.

Collins & Collins, P.C.
Albuquerque Attorneys

Spoliation of evidence, or more commonly understood destruction of evidence, can result in the dismissal of a homeowner's claims against a negligent builder, subcontractor, architect, engineer or other party responsible for a new home's defects. The obvious question is how would spoliation of evidence occur?

The answer is that it could occur quite innocently. Whenever a homeowner takes it upon him or herself to repair problems, there is the possibility that evidence will be destroyed. Perhaps more accurately, it is possible that the negligent defendant will assert a defense of spoliation of evidence purely as a tactical matter. In fact, this defense is preached by the construction defense bar knowing full well that many homeowners will take action to repair or fix their most valuable asset rather than standing idle waiting for the contractor the fix the problem.

Many times, homeowners meet with delay after delay in addressing their problems with contractors or builders. Their grievances are routinely ignored. And why not, if the homeowner finally and predictably takes action on the problem, the contractor now has one more line of defense against a construction defect lawsuit.

To avoid the possibility or suggestion of spoliation of evidence claims, the homeowner should contact the builder or contractor immediately in writing with a detailed description of each and every defect. The injured homeowner must give the defendant notice of any intended repairs. Finally, the plaintiff must give the contractor, builder or other defendant the opportunity to inspect the defects themselves prior to any such repairs by the homeowner.

Once notice of repairs and opportunity to inspect is provided, the homeowner should document both the original defects and the repairs very carefully. As one might expect, the contractor or builder is likely to have a very different view of what happened partly due to their own self-interested documentation of the problems and the fixes. It is safe to say that these problems and repairs can never be over documented, but they most certainly can be under documented.

Once again, failure to provide notice and opportunity and to carefully document the defects and the subsequent repairs will undoubtedly lead to the spoliation of evidence defense. Careful attention and documentation should cut off this defense. Failure to provide notice and opportunity to inspect can and does lead to a dismissal of the claims.

Collins & Collins, P.C.
Albuquerque Attorneys

On occasion, a party responsible for an accident and personal injuries will offer to pay for medical expenses related to the injuries. This most often occurs in slip and fall accidents at retail establishments. It is just as common that the party later reneges on the agreement. On the rather rare occasion when the negligent party does pay for expenses, the question of liability and damages is still not necessarily settled.

In most cases involving personal injuries, there is some type of insurance involved. This certainly true of slip and fall accidents Insurance companies are not prone to pay out money on medical expenses or any other damages in the absence of liability on the part of their insured. In case of slip and fall accidents, it seems as common as not that the promise to pay is simply a ploy to get the customer out of the store as quickly as possible. In other types of accidents, there may at first be an admission of liability with a later denial once the full scope of damages is known. In other words, they may accept liability on what they believe to be a small claim which is fact turns out to be a large claim.

This can be both perplexing and frustrating to an injured plaintiff. Yet it is generally allowable under the law. In fact, it is codified in Rule of 409 of both the New Mexico and Federal Rules of Evidence. Rule 409 states; "Evidence of furnishing or offering or promising to pay medical, hospital, or similar expense occasioned by an injury is not admissible to prove liability for the injury."

What this means in practice is that a plaintiff cannot use the payment of medical expenses by the negligent defendant at trial for purposes of proving responsibility or liability for the injuries. The payment of medical expenses may be used at trial for other limited purpose but not for showing liability.

The Rule purports to serve a very valuable purpose. After all, it is said that the law does not want to discourage payment of medical expenses even where those expenses and the related injuries are in dispute. The rule allows the payment of perhaps disputed medical expenses in turn providing for the medical care of an injured party.

On the other hand, it is extremely rare where a defendant, particularly an insurance company, would pay out damages early in a case on disputed claims. Instead, the insurance company would want a release of claims in return for the quick and cheap settlement of disputed claims. This is far more common and occurs with some regularity.

In cases of real personal injuries, a quick and cheap settlement is generally going to be far more advantageous to the insurance company than to the plaintiff. After all, insurance companies and defendants generally are not in the business of philanthropy and they unlikely to offer to pay medical expenses out of the goodness of their hearts. This brings us back to where we started which is insurance companies are not inclined to pay out disputed claims yet the payment of these claims cannot be later used against them at trial.

Collins & Collins, P.C.
Albuquerque Attorneys

The contingency fee arrangement plays a pivotal role in allowing personal injury plaintiffs access to the courthouse. In fact, without contingency fees, injured persons would for the most part have absolutely no recourse for their injuries and damages.

Of course this is what defendants would like to see. This explains the unrelenting attacks on trial lawyers by insurance companies, the Tort Reform movement, the U.S. Chamber of Commerce, and a long list of so-called small business advocacy groups.

The arguments have been so persistent and so loud for so long that many have taken their truth for granted. In fact, the arguments for tort reform and personal injury liability caps are based largely on myth. These myths were hatched and nurtured by these groups who represent corporate America and the insurance industry. The goal is maximize corporate and insurance industry profits with little regard for the safety of the public. In short, the goal is to keep injured persons out of court.

Among the greatest myths, and one that is particularly popular even among the public, is that the greed of trial lawyers is draining small business. Because the myths and misrepresentations are so numerous and profound, it is really hard to rank them in order of deception. However, this myth ranks at or near the top.

The focus of the "greed" argument has been on the contingency fee arrangement. Remarkably, the very conservative Fourth Circuit Court of Appeals shot down this argument in the 2010 case of Pellegrin v. National Union Fire Insurance. The case involved a $18 million auto accident settlement on behalf of Mark Pellegrin who suffered severe and permanent brain injuries, and quadriplegia. His injuries were so great that he can communicate only through facial expressions. He will be totally dependent for life upon the care of others for even basic necessities such as bathing and feeding.

Liability was hard fought by the insurance companies. According to the two plaintiff's attorneys, permanent, each had spent over 1000 hours of time on the case. There was a standard one-third contingency fee arrangement. Over the strong objections of the plaintiff's father and guardian, the district court reduced the fee to a mere 3%.

The plaintiff's were forced to appeal to the 4th Circuit Court of Appeals. The 4th Circuit is notoriously conservative and the plaintiffs were rightfully extremely concerned. In addition, Public Justice became involved fearing that the 4th Circuit would use the case as a platform for a full frontal assault to the contingency fee arrangement.

To the surprise of all on the plaintiff's side, the 4th Circuit reversed the district court's ruling. The Court repeatedly recognized not only the importance but the absolute necessity of the contingency fee arrangement to allow injured individuals their day in court. The Court noted that this case in particular illustrates the reality that an injured individual would have absolutely no recourse for his or her injuries in a case like this. Clearly, there are very few if any other than corporate plaintiffs that would have the resources to pay for thousands of hours of attorney time not to mention the enormous litigation costs associated with suits of this nature.

Of course, this is well known to the Tort Reform movement. In their perfect world, the courts would be a playground for only the rich and powerful. And perhaps most importantly for all those skeptics out there, the millions of dollars of lifetime medical care for Mr. Pellegrin and others like him would be left to the taxpayer.

Collins & Collins, P.C.
Albuquerque Attorneys

A recent New York Times artilce illustrates the predatory nature of personal injury lawsuit funding companies. The article cites instances where plaintiffs ultimately turned over almost their entire settlement or judgment to the lawsuit lenders.

The lawsuit lenders like to call themselves investors. In fact, they are highly predatory lenders. They argue that lawsuit lending is more akin to venture capital than lending. They justify interest rates of up to 100% a year on the rationale that they are at risk of not getting paid back at all.

In reality, most of these companies screen their cases with extreme care. The Times article suggested that the companies will refuse loans on 70% of the applications and then loaned on 10 to 20 percent of the expected recovery. In short, they are looking for slam dunk settlement cases. And, in fact, it is not terribly difficult to evaluate the likelihood of recovery on most cases.

If nothing else, these companies could use programs like the insurance industry's Colossus software for evaluating claims. This software is used by a large number of auto insurance companies. Upon entry of the specifics of an auto accident, the software spits out a settlement range. To the chagrin of many injured persons and their lawyers, there are some insurance companies that will not budge off these very conservative settlement value estimates.

Even without a program like Colossus, cases with high and/or certain settlement value are not hard to spot in most routine personal injury cases. There are others such as medical malpractice and products liability that are more difficult to evaluate and fairly risky to undertake. However, if these companies are truly screening 80% of the cases from eligibility, then it would seem that they are instead focusing on the sure cases with very little risk of loss.

Yet they continue to charge rates up to 100% annual interest. To further illustrate the point that these are low risk, extremely high interest predatory loans, the Times cited one industry leader who stated, "We don't want judges to shine a light on us." To avoid scrutiny from judges who often will refuse to enforce these predatory loans, many of the lenders will loan only on those cases that have a high probability of pre-trial settlement. In others words, they make only very low risk loans or "investment."

What does this mean for you and your personal injury claims? It means that if the company is willing to lend to you, by definition, you should not take their loan. The fact that they have approved the loan suggests that your case has a very good chance of pre-trial settlement.

If you are truly desperate for funds, then you might consider lowering your settlement demand to facilitate a more rapid settlement. This would be a more prudent and far less financially detrimental route than ultimately turning over your settlement to a lawsuit lender.

Collins & Collins, P.C.
Albuquerque Attorneys

The statute of limitations in most personal injury cases is 3 years from the date of the incident that caused the injuries. In cases against state, county and local governmental entities, the statute of limitations is only 2 years.

Failure to file a suit within the statute of limitations bars a lawsuit completely. In other words, if you do not file within the statutory period, then you cannot file the lawsuit at all. The statute of limitations is harsh and a personal injury plaintiff should not flirt with these deadlines.

There are some rare cases where the statute of limitations may be extended or tolled. These are extremely rare and an injured plaintiff would be well advised not to place any reliance on these exceptions to the statutory deadlines.

Perhaps the most common situation where the statute of limitations would be extended is in cases where the injured party is unaware of the injuries. This often arises in cases of medical negligence. After all, for instance, the patient may not know of a surgical sponge left inside them for years following the surgery.

An injured person may also be unaware of his or her injuries in cases of product defects. Often these too are associated with a medical malpractice claim. The best example currently in the news are the hip replacement recalls from Depuy . There are many other surgical products that have caused injuries to patients which were apparent only years after the surgery.

The same type arguments hold for numerous pharmaceuticals both past and present that have been found to cause serious personal injury to patients. There are currently recalls with either pending or possible lawsuits involving Yaz, Nuvaring, Accutane, Darvon, Darvocet, Gardasil, Fosamax, and Paxil to name only a few. For each, patients may have taken the drugs for years before realizing the harm that the drugs caused. Some may have ceased using the medications long before knowing of their injuries.

There are certainly other situations where an injured party may not be aware of his or her injuries until months or years after the incident. Keep in mind, however, that ignorance of the injuries alone is not sufficient to toll the statute of limitations. If the injured person should have known of the injuries, then there will be no tolling of the statute of limitations. By way of example, this is true in New Mexico even where there are differing medical opinions regarding the source of the injuries.

The bottom line is the statute of limitations is real and it is rigid. There are very few exceptions. It would be exceedingly unwise to ignore an injury or illness that may have been causes by medical negligence, a product defect or any other cause. It is entirely possible that ignorance of the cause may not be grounds for tolling the statute of limitations.

If you are injured or sick and you believe it was caused by the products or actions of another, then seek a medical opinion immediately. If there is more than one possible cause, then it may unfortunately be necessary to sue them all and sort out the causation through litigation.

Collins & Collins, P.C.
Albuquerque Attorneys

Many times, an injured party is angry and frustrated as a result of an accident. They often call wanting immediately to file their personal injury suit against the responsible party. This may in fact be the natural reaction to an injury, particularly where there are significant damages suffered as a result of the negligence fault of another person.

Filing suit right out of the gate may be appropriate in some cases. However, in most personal injury cases, the more appropriate and prudent course of action would dictate against this. Some folks cannot accept this and their impatience dictates immediately legal action. We typically do not work with these clients.

The fact is the approach that says, "file suit and ask questions later", can make the case much more difficult to resolve. This approach is more likely to delay the resolution of the case than to expedite it. Most importantly for rational plaintiffs, litigation is very expensive. The client bears the costs of litigation. So every dollar spent on litigation is a dollar the client does not receive from the recovery.

It is really not too difficult to understand why this would be so. Once a lawsuit is filed, the case is no longer in the hands of an adjuster but in the hands of a insurance defense attorney. Once the file reaches a defense attorney, depending on the firm, a client may expect full blown litigation. This means at a minimum, discovery, depositions and inevitable motions to dismiss and/or motions for summary judgment. In many cases, it means the necessity of expert witnesses on both sides.

Some clients may think the more experts the defense hires, the better since it costs them money. Unfortunately, it costs the client money as well since a deposition of the defense expert requires that the plaintiff pay for the expert witness' fees as well as the costs of court reporters. This is very expensive, and again, it comes out of the client's recovery if there is any.

Taking a generous view of defense tactics, the defense attorney must as a matter of professionalism and competency jump through all these hoops to fully protect the interests of the insurance company client. Others may take a less generous view in suggesting that protracted litigation and refusal to reasonably settle a claim is dictated more by the need to generate billable hours by the insurance defense attorney than the facts of the case.

No matter what the cause, litigation is expensive. Often times, it is unnecessary and the injured client's interest are far bettered served by pre-litigation resolution and settlement of personal injury claims. Though insurance companies and adjusters often get a bad rap, sometimes deservedly so, most adjusters understand the math as well. Litigation is expensive for both sides and the costs of litigation will be considered by all but the most unreasonable and uneducated adjusters.

Litigation is often necessary for many reasons and an experienced personal injury attorney will know when it is time to file suit. Likewise, the attorney will also understand that the time for filing suit is rarely at the inception of the claim.

Collins & Collins, P.C.
Albuquerque Attorneys
www.CollinsAttorneys.com

According to the New York Times, bankers are jumping into the personal injury lawsuit business along with hedge funds and private investors. The list of those banking institutions embracing the much maligned personal injury trial lawyers for their own profit is noteworthy, if not surprising.

According to the New York Times, Counsel Financial of Buffalo is the largest such personal injury lawsuit finance company with $200 million in lawsuit financing loans outstanding. Counsel charges annual interest of 18% on the loans. Counsel is financed through Citigroup. Joining the ranks of Citigroup are Credit Suisse and Deutsche Bank among others. It is perhaps safe to assume that each is a card-carrying member of the United States Chamber of Commerce though I could find no membership rolls for the Chamber.

Why is this relevant? The US Chamber is the chief proponent of Tort Reform in the United States. The New York Times article cites Lisa A. Rickard of the Institute for Legal Reform, a creation of the United States Chamber of Commerce for the promotion of Tort Reform, "It sends shivers down the spines of general counsels all across the globe."

Apparently, many companies spurred on by the myths of lawsuit abuse created by the US Chamber and the Tort Reform movement fear that these lenders will go beyond mere financing and begin to solicit lawsuits. And why wouldn't they?

According the New York Times Article, Counsel made a profit of $11 million on a $35 million loan to help finance the ground zero worker lawsuit. With returns like that, more and more banks, many of whom are members of the Chamber and staunch supporters of Tort Reform will jump on the bandwagon.

It is estimated that there are one billion dollars in lawsuit loans outstanding at any given time. Of particular note is investment in medical malpractice cases and class action lawsuits. It is more than ironic following the recent election cycle where the US Chamber, along with its members, have perennially led the drum roll blaming trial lawyers for the strain on businesses of class action lawsuits and the constant harping about the mythological medical malpractice crisis.

In the true spirit of capitalism, Courts have ruled that it is not illegal for these financiers to drum up lawsuits themselves. These courts are not just from liberal jurisdictions like Massachusetts, but from Texas, South Carolina and Ohio who have led the way in medical malpractice limitations and caps among other Tort Reform style initiatives.

Of course, the costs of financing are carried by the plaintiff in the case of a victory at trial, and the lawyers in case of a loss. The creditors get paid either way. Most remarkable, the article cites numbers and cases showing that in many cases, the costs of financing resulted in net losses to the plaintiffs despite trial victories. In other cases where the cases were lost, lawyers were forced into bankruptcy.

The logic is clear. So long banks get paid, all is well in the world of Tort Reform. It seems almost inevitable that there will soon be attacks on the trial lawyers fees despite the high risks of litigation and their liability on the loans despite the outcome. This has already begun with attorneys being forced to carry the costs of the financing in the Ground Zero litigation. Rest assured, there will be no similar movement to limit the interest rates on these loans.

Read the story at New York Times

Collins & Collins, P.C.
Albuquerque Attorneys
www.CollinsAttorneys.com

FISA, the Foreign Intelligence Surveillance Act of 1978, was originally passed to allow surveillance of communications between foreign powers, foreign intelligence agencies, and their agents. Since 911, FISA has been greatly expanded through various amendments including the Patriot Act. The expansion of FISA allows virtually unfettered governmental monitoring of online and telephone communications of American citizens.

In order to facilitate the monitoring of telephone communications, Congress passed the FISA Amendments Act (FAA) of 2008 which granted the National Security Agency (NSA) virtually unlimited authority to spy on Americans. In addition to legalizing warrantless surveillance (no need for reasonable suspicion of wrongdoing), the legislation provided for what the ACLU terms "dragnet" surveillance of international phone calls and email, again without a warrant and without any suspicion of illegal activity.

To accommodate the new surveillance powers, Congress then passed the Communications Assistance to Law Enforcement Act (CALEA) which requires phone companies to make their networks "wiretap-ready."

Many Americans accept this as a reasonable response to 911 and the threat of terrorism. Perhaps, heightened surveillance authority is justified in the post 911 world. For both those that like to see the world in black and white, it applies to good guys and bad guys equally. It applies to those that oppose the intrusions on privacy as well as to those that fully embrace it.

Most Americans spend a fair amount of time online. There are 500 million Facebook members. There are hundreds of millions of online purchases each year. There are hundreds of billions of emails sent and received by law abiding citizens. Unfortunately, the protections that the government seeks to invoke and many Americans whole heartedly embrace may expose all these law abiding citizens to breaches of privacy. These breaches may be seemingly mundane such as the recent issue with Facebook. Others may be catastrophic to both innocent consumers and to the economy as a whole.

It takes little imagination to see how this might happen. The government is now seeking to force all online platforms to make their software open to government surveillance. Basically, the government will require a "backdoor" to allow free and easy access for governmental use. Many would ask, "So what?" Fortunately, these folks do not need me or anyone else to answer that question. A simple Google search on internet privacy breaches will result in millions of results. Search again for online credit card security breaches and find millions more. Mull around for a while and ask yourself if you want a backdoor built into all your "private" online communications and purchases.

Unfortunately, the most gifted computer programmers do not always work in government. Nor do they always have benign purposes. Even those that do not mind the NSA poking around in their online activity might think twice about the 19 year old hacker prodigy doing the same. It all makes one miss the postman.

To follow the FISA Amendments, take a look at the ACLU challenges to the laws. A visit here might open your eyes to the problems with the FISA Amendments while also shedding some light on the value of the ACLU's work, which is widely misunderstood and regretfully much maligned.

Collins & Collins, P.C.
Albuquerque Attorneys
www.CollinsAttorneys.com

Bullying has long been a problem in schools. The problem has been getting a lot of attention recently with some troubling new twists to an age old problem.

There was Tyler Clementi's suicide on September 22 following his roommate's live streaming of some very private moments on to the internet. The behavior of the roommate was atrocious and inexplicable. The suicide of a promising college student is shocking to say the least.

The case follows on the bullying related suicide of Phoebe Prince , a 15 year old high school student. There are countless other bullying related tragedies like these.

Perhaps, none is more shocking than the most recent suicide of a 10 year old girl. It is believed that her suicide was bullying related. The thought of a 10 year old committing suicide would be incomprehensible as a result of bullying if not for the fact that this was not the first such incident. In April of 2009, an eleven year old boy committed suicide as a result of bullying.

The bullying can range from psychological and emotional abuse to outright physical violence. The result is often the same. In response to the problem, 45 states have passed legislation addressing school bullying.

Much of the legislation is preventive in nature addressing education and awareness. Often, the legislation lacks any remedial measures for the victims of school bullying. However, as the culprits in the Phoebe Prince and Tyler Clementi cases have found, there are serious possible criminal consequences to the behavior. Criminal liability for the bullies does not address the culpability of the schools that often ignore or foster the bullying behavior.

The schools do have a responsibility for monitoring and preventing bullying behavior as many school systems have found through some sizable personal injury lawsuits. Schools, administrators, teachers and coaches cannot turn a blind eye to bullying. They have a duty to protect the students in their care.

This duty has never been more clearly breached than the case of the Las Vegas, New Mexico football program where numerous underclassmen were raped with broom handles as part of a sick and apparently tradition bound hazing ritual in the program. The students that committed the atrocities have since been convicted and sentenced to various terms of probation and jail.

The school, the district, the teachers and coaches that stood idly by as the crimes were committed will soon understand the depth of their responsibility. Unfortunately, this epiphany will come only as a result of the personal injury lawsuit filed against these folks.

Perhaps, these individuals and the school district do not read the press about the horrible consequences of school bullying. You can bet they will be reading the legal pleadings filed against them. It can only be hoped that other school officials across the country will do likewise. Clearly, many schools have failed to recognize and respond to the harm to their students. Hopefully, schools and school districts will take note of the huge costs of such negligence.

Collins & Collins, P.C.
Albuquerque Attorneys
www.CollinsAttorneys.com

The New Mexico Supreme Court addressed the growing problem of outside influence on jurors. The case addressed a low tech version of the problem but the holding has far broader implications on New Mexico jury trials in the age of Google, Facebook, Twitter ...

The case of Kilgore v. Fuji Heavy Industries, the manufacturer of Subaru) addressed a situation where a juror in a seatbelt malfunction case received input from a source outside the courtroom. The juror's brother in law, a Subaru mechanic, apparently opined with the juror that a break failure in the Subaru was very unlikely. The jury found for the defendant Fuji Heavy Industries.

The plaintiffs requested a new trial on the grounds of improper juror conduct prejudicial to the plaintiffs. The trial court denied the plaintiffs' motion. The New Mexico Supreme Court reversed the trial court. However, rather than order a new trial, the Court ordered that the case return to the trial court for an evidentiary hearing to determine whether the outside influence was indeed prejudicial to the juror's decision.

In sending the case back for an evidentiary hearing, the Court ruled that it was the burden of the plaintiff to show that material extraneous to the trial reached the jury, the material related to the trial, and it was reasonably probable that the outside information affected the jury's verdict or the typical juror. This in short was a small victory for the plaintiff which must now go back and prove that information reaching the jury in the 2006 trial did in fact prejudice the jury's ruling.

The case is perhaps more interesting due to the growing influence of the internet on juror deliberations. In any trial that lasts more than a few hours where the jurors remain sequestered, some jurors just cannot resist the urge to conduct a little outside research or in many cases to even post the events of the day to Facebook, MySpace, Twitter or other social media. One recent Detroit juror went so far as to post his verdict on Facebook before the trial was over!

The challenge then becomes proving outside juror influence or bias. Jurors are not allowed to testify to juror deliberations. Instead, the parties and their attorneys must uncover the wrongdoing themselves. In the case of the Detroit juror, the defense attorney was fortunate enough to have an tech savvy teenage son who discovered the impropriety on Facebook. Uncovering improper conduct on Facebook can be very difficult where security settings are in place. Proving that a juror did some independent research is near impossible without an actual admission from the juror himself.

If a party is fortunate to have a juror honest enough to admit wrongdoing, it must still be proved that the research had a prejudicial affect on the outcome of the trial. This must be proved at an evidentiary hearing which may come years later as it did in Kilgore v. Fuji making this a very difficult burden to carry. In the past, there was presumption of prejudice. In these cases, this seems like a rather safe presumption. After all, why would a juror research the topic at all but for the influence it would have on his or her decision.

Collins & Collins, P.C.
Albuquerque Attorneys
www.CollinsAttorneys.com