Thursday, June 28, 2012

Louisiana is NOT the Most Dangerous State to Drive, but It's in the Top TEN!

Hey all!

I have been swamped with work and traveling so I have not had the time (or energy) to research and draft a unique and personal post. I am providing you with a recent article By Mike Sauter from the Wall Street Journal about Top 10 most dangerous states to drive in! 
Louisiana is ranked 7th among the top of the most dangerous states to drive for the following reasons:

- Average auto fatalities per 100,000: 20.2

- Auto fatalities/year: 897 (15th most)

- Lifetime medical costs due to 1-yr. auto accidents: $7,363,795 (18th highest)

- Lifetime work loss costs due to 1-yr. auto accidents: $1,109,612,984 (8th highest)

- Pct. commuters traveling 30 mins. or more: 31.71% (22nd highest)

Louisiana had the seventh-highest annual average rate of auto injury fatalities per 100,000 residents from 2007 to 2009, at 20.2. The estimated lifetime work loss costs due to fatalities from accidents in one year exceeded $1.1 billion, which is eighth highest, according to CDC estimates. Though Louisiana’s traffic safety figures are alarming, the state is taking steps to remedy the situation. It is one of only 16 states with a mandatory ignition lock for all convicted drunk drivers, one of 18 to make helmets mandatory for all motorcyclists, and one of 32 with a primary seat belt law. The problem, it seems, are not the laws but ineffective enforcement. According to an NHTSA report, only 75.9% of Louisiana drivers wore seat belts in 2010, the lowest among all states with primary seat belt law.

How do you think your state compares and which states do you think are the most dangerous. I will post that information next week.

In the meantime, if you ever need any assistance in north Louisiana or northeast Texas, please don't hesitate to call.

Take care,
Mark

Thursday, June 21, 2012

Top Ten Ways to Kiss Your Client’s Ass and Act Happy While Doing So

Since I don't know if  anyone actually reads these blog posts, I thought I would try something different. Call it cathartic, if you will.

I enjoy the legal practice in general, but it certainly seems that the expectations can be a bit unreasonable, but it pays the bills so I do what needs to be done ethically and morally. I suppose some lawyers gloss over the moral thing and may get more clients, I haven't become that jaded.

In this competitive market, the following is a list of potential rear-end smooching that may be acceptable. I consider them a bit more, but if it pays the bills and I don't feel too worthless, maybe I'll try one or two. Let me quote from— Police Academy 2: Their First Assignment

Chief Hearst: Mauser, you are the the most incredible ass-kisser I have ever seen.
Sgt. Mauser: (smiling) Thank you very much, sir. I do my best.
 Now to the list:

1. Take my client's dog for a walk (if I get paid the same billable hourly rate, but I'm not going to agree to one-half of the billable rate by calling it travel time).

2. Babysit the client's snotty-nosed brats? I think I might prefer to take the dogs out  for free.

3. Agree with the client's choice of political candidate. Oh yeah, there's no shame in politics.

4. Let the client ridicule my analysis as asinine. Not a problem with that one. I probably agree.

5. Do three months of work, bill the client and allow him to edit the bill because he doesn't think certain things were necessary and then wait another 60 days to pay the bill. Oh wait, that ALREADY happens.

6. Accept the client's ranting and railing at my staff over a document he claims to not have received only later to discover that it was in his in-box that he failed to look through. Nah, I can take the bad attitude toward me, but I can't accept it when it's directed to the staff. I don't treat them that way so I can't let the clients do that either.

7. Laugh at his  stupid-ass drunken jokes. Easy enough as long as he remembers me when he returns to the office to send me another case.

8. Responding to the question "Hey, I've just got a quick question that I need your advice. Now don't charge me for this." Then he goes off into a diatribe of detailed complexities that make me dizzily nauseous. Sure, I do that all the time.

9. Bring my wife to cocktail party and overlook the drunken comment by the client who says to her "Ish that cat hair on yur ash?" Sad, but true story, but I didn't overlook it. I just redirected her to a safe place.

10. Give up and just goes with the flow, finding refuge in a heartfelt loathing towards the stupidity of the world in general.

Bonus:

Spend hours on complex legal issues and work a case down to an extremely reasonable settlement and later being told  "We're going in a different direction" and have the case sent to another attorney in another town who YOU referred them to in the first place so that you would help them keep their costs down.

No good deed goes unpunished.

Thursday, June 14, 2012

Louisiana Lawyer "Prosecuted" for Manslaughter But Only Disbarred

I began my legal career as a prosecutor. I literally have tried hundreds of bench and jury trials, including homicides and rapes. There would be times when the Attorney General would prosecute a case because of a conflict, but never have I heard of the Office of Disciplinary Counsel essentially prosecuting a criminal case in order to disbar an attorney.



Until this year.


In re Charles Williams, 11-1457 (La. 1/24/12), 2012 WL 206401 involved an undisputed fact that on Thanksgiving Day, 2004, Williams shot and killed Larry Broome, another Louisiana lawyer, with whom he had been friends for some thirty-five years.


The shooting occurred in the course of an altercation in the parking lot of the Club Nexus bar in Benton, Louisiana. Respondent consistently maintained that he acted in self defense.


Williams was arrested following the shooting and charged with manslaughter.


On May 9, 2006, Williams pleaded guilty as charged. Pursuant to a plea agreement, he was sentenced to serve ten years at hard labor, suspended, and placed on active probation for three years with special conditions. However, unbeknownst to the parties involved in the plea deal, the trial judge lacked the authority to suspend respondent’s sentence and to place him on probation.


Thereafter, Williams appealed the legality of his sentence. In February 2009, the Supreme Court vacated the sentence and remanded the matter to allow respondent the opportunity to withdraw his guilty plea and to plead anew. Upon remand, Williams pleaded not guilty, and the Bossier Parish District Attorney’s Office ultimately declined to prosecute the matter any further.

In July 2007, the Office of Disciplinary Counsel ("ODC") filed formal charges against Mr. Williams, alleging he committed a criminal act in violation of Rule 8.4(b) (commission of a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer).

Thursday, June 7, 2012

WHEN OPINIONS OF MEDICAL DOCTORS REGARDING ALLEGED DISABILITY ARE UNRELIABLE

Last week, we talked about the general arguments to exclude from a tort case any determination by the SSA of disability. This week, I am going to outline some reasons why the medical opinion of the physician used in the SSA determination should be excluded.

Like most other jurisdictions, there are limitations on the admissibility of expert testimony. Louisiana Article 702 of the Code of Evidence governs the admissibility of expert testimony. It provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
Article 702 is identical to Federal Rule of Evidence 702. In Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S. Ct. 2786 (1993), the United States Supreme Court established the framework for the admissibility of scientific expert testimony under Federal Rule of Evidence 702. The Louisiana Supreme Court adopted the Daubert test in State v. Foret, 93-0246 (La. 1/30/93), 628 So.2d 1116.

Expert testimony must rise to a threshold level of reliability in order to be admissible. Id. at 1123 (adopting Daubert). To be reliable, such testimony requires more than "subjective belief or unsupported speculation," Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579,113 S.Ct. 2786, 2795, 125 L.Ed.2d 469 (1993). Under the Daubert/Foret test, the trial court is charged with a "gatekeeping responsibility" to ensure that all expert testimony is "not only relevant, but reliable." Daubert, 509 U.S. at 590, 113 S. Ct. at 2795. 

In civil cases, when a pre-trial Daubert motion is filed, the trial court is required to either order a pretrial or status conference under Louisiana Code of Civil Procedure article 1551 to discuss or simplify any Daubert issues or, if still not resolved, hold a pretrial contradictory hearing to allow the trial court an opportunity to determine whether the proposed expert testimony is reliable. Benn v. Hilton Hotel, Inc., 02-0620 (La. 5/10/02), 815 So.2d 830; Caubarreaux v. E.I. Dupont de Nemours, 97-978 (La.App. 3 Cir. 5/6/98), 714 So.2d 67, 71.

In making this preliminary determination, Article 702 first calls for the trial court to examine the expert’s qualifications as an expert witness. Additionally, the trial court should apply several factors to determine whether the reasoning and methodology underlying an expert’s testimony is scientifically valid and can properly be applied to the facts at issue.

These factors include:

1. whether the expert’s theory or technique can be and has been tested;
2. whether the theory or technique has been subjected to peer review and publication;
3. the technique’s known or potential rate of error; and
4. whether the methodology is generally accepted in the scientific community.

For the medical doctor who made the determination in the SSA hearing, he/she cannot be subpoenaed (as outlined in the previous blog post), so you cannot evaluate his/her methodology or expertise. For these reasons alone, you can exclude the doctor's testimony, as well as his assessment (See the blog from last week).


We often get orthopedic surgeons or general surgeons making a determination that the Plaintiff is unable to return to work, but neither are qualified to perform functional capacity evaluations.  They typical do not perform any testing to determine his level of strength, ability to lift, stamina, or  pushing and pulling ability.  

In other words, they follow no reliable technique or methodology to determine if a plaintiff is incapable of working.  They offer nothing more than "subjective belief or unsupported speculation." See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579,113 S.Ct. 2786, 2795, 125 L.Ed.2d 469 (1993). 

Of course,  as  good  an argument as this may be, good luck in getting it excluded! I don't mean to be cynical, but we all know the game.

Yet, we keep up the fight, right?

As always, if there is anything I can do to assist you in north Louisiana or northeast Texas, please don't hesitate to call day or night. For more information about the firm, go to our website located at www.perkinsfirm.com.


Mark Perkins