North Carolina Trial Law Blog

Judicial Endorsements and Down Ticket Races in North Carolina

Well, we are at less than 30  6 days  10 hours to election time and it is time for my annual Judicial Endorsements post (and a few other races you may not know much about).

NC elects all of our Judges, we do not have an appointment system or retention elections.  This is a great system in the sense that there is very little "inside politics" going on, but it is also a not-so-great system because most citizens have virtually no idea who the judicial candidates are, OR what "qualifies" someone to be a good Judge.

So I am setting out below who I endorse this election.  My criteria for endorsement is that the Judicial candidates must be experienced, show judicial demeanor, be impartial, and be fundamentally connected to the preservation of individual constitutional rights and consumer rights. 

CLICK HERE FOR A PRINTABLE GUIDE in PDF format:  Download 2008_voting_guide_1.pdf

NC STATEWIDE JUDICIAL ENDORSEMENTS
NC SUPREME COURT

Suzanne Reynolds – Supreme Court (Edmunds seat)  www.suzannereynolds.org

Professor Reynolds (as I have always known her) is a family law professor (and my ethics law professor) at Wake Forest University School of Law.  She is one of the foremost experts in Family Law in this state.  She's been a professor for 27 years.  Family Law expertise is vitally important to our High Court because behind most family law questions are real people needing real justice.   

Kristin Ruth – Court of Appeals (Tyson seat) www.judgeruth.com

Sam J. Ervin, IV – Court of Appeals (Tyson seat) www.ervinforcourtofappeals.com

So this endorsement is a tie.  Both candidates listed above are highly qualified and either would make an excellent addition to the Supreme Court.

North Carolina Court of Appeals

Jim Wynn – Court of Appeals  www.judgewynn.com

Judge Wynn is the incumbent and consistently writes well reasoned and well balanced opinions.  He's a Navy veteran, he's been talked about as a Federal Judge, and he's endorsed by EVERY major newspaper in NC.  This race is a no brainer.

Cheri Beasley – Court of Appeals (McCullough seat)  www.judgecheribeasley.com

Linda Stephens – Court of Appeals  www.judgelinda.org

Judge Stephens is the incumbent.  She's been on the COA for years and has shown herself to be insightful and well balanced in her opinions.  She's well liked by almost all lawyers who appear before her.  Keep Linda Stephens.

John Arrowood – Court of Appeals  www.judgearrowood.com

John Martin – Court of Appeals (unopposed)

"DOWN TICKET" Candidates 

I usually confine my endorsements to the Judicial Elections, but this year I'm going to make a few recommendations for the "down ticket" races.  While these races are partisan, most of us don't have a lot of contact in our daily lives with the issues controlled by the down ticket races.  As a lawyer, my life and my client's lives can be deeply changed by the rules and regulations promulgated by these positions.  If you vote straight ticket, you need to read these.

Roy Cooper – Attorney General  www.roycooper.com

Roy Cooper is the incumbent.  He's consistently been willing to intervene in "hot topics" and do "the right thing".  Example:  Cooper's office stepped into the highly politicized Duke Lacrosse case and cleared the players of wrongdoing.  He's provided good leadership to our Attorney General office and has been a strong advocate for consumer protection laws, cracking down on bad mortgage lenders, unfair "pay day" lenders, and fraudulent car sales.  He has a particularly strong record of pursuing "identity theft" operations.

Janet Cowell – State Treasurer  www.janetcowell.com

Janet is usually well qualified for this job.  A Wharton School of business graduate, she can certainly keep our state retirement funds safely invested during troubling economic times.

Elaine Marshall – Secretary of State   www.elainemarshall.org

Elaine Marshall is simply wonderful.  She has automated and computerized all of the corporate records in North Carlina, saving businesses and lawyers millions of dollars in lost time because we don't have to manually record and search for records of incorporation.  Her office is responsive and helpful.  She well liked by both parties and should remain in her office.

Wayne Goodwin – Insurance Commissioner   www.waynegoodwin.org

In my mind, this is the MOST IMPORTANT downticket race this year.  Not many people know this, but North Carolina enjoys very low insurance rates because we are one of very few states where the Commissioner of Insurance has final authority to set rates.  In other words, insurance companies MUST request rate increases from the Commissioner of Insurance and must prove why they deserve a rate hike.  Our long time incumbent Commissioner Jim Long has a long record of refusing unnecessary rate hikes, and as a result consumers and businesses have saved an incredible amount of money on insurance premiums.  Wayne Goodman is a lawyer, a consumer advocate, and has been Jim Long's "right hand man" for many years.  We can count on him to keep the Insurance Commissioner's office as an advocate for the people of North Carolina.   

Goodwin also pledges, like his boss,Long did, to fight any effort by Blue Cross Blue Shield of N.C. to convert from nonprofit to for-profit status, as well as to use the very limited powers available to his office to hold BCBS to its historic public-interest role in health care.  Goodwin's opponent, by accounts a nice guy, was a long time Democrat turned Republican who has no experience in insurance regulation.

Mary Fant Donnan – Labor Commissioner  http://www.maryfantdonnan.com

The NC Labor Commissioner is responsible for a few more things than just inspecting elevators.  One of the more powerful duties is overseeing all OSHA investigations in North Carolina.  OSHA, in essence, keeps the workplace safe, and the enforcement of OSHA laws sometimes means life or death to workers.  Under our current commissioner, the labor department has been decidedly "pro-business" which translates roughly as "anti-worker."  Donnan served as director of research and policy for the Labor Department under former Commissioner Harry Payne, one of the most capable labor commissioners the state has had. She is well-prepared to enact reforms in the Labor Department.  The Charlotte Observer has good piece on why our current Labor Commissioner should be replaced:  LINK TO OBSERVER ARTICLE

Beth Wood – State Auditor  www.bethwoodcampaign.com

The State Auditor keeps our government honest with our tax dollars.  The current Auditor has used his position to wage many political wars and is currently locked in a battle with the Governor's Ethics Commission.  The Auditor should truly run along non-partisan lines, and Beth Wood seems the perfect fit for the job.  She has been a Certified Public Accountant for 20 years and served in the State Auditor's Office for more than a decade under two different administrations. 

Ronnie Ansley – Agriculture Commissioner www.ansley4ag.com

Ansley received a bachelor’s degree in Agriculture Education from North Carolina State, a Master’s degree in Agriculture Education from Clemson, and a law degree from Mississippi College School of Law. He is presently serving as the National President of the Future Farmers of America Alumni Association.

He advocates that we must invest in renewable-sustainable green energy sources for fuel production.

For the animal lovers out there, you might be interested to know that the Ag Commissioner is responsible for setting the euthanasia standards for animals in North Carolina. 

The winner of the race for NC Commissioner of Agriculture will greatly determine how homeless cats and dogs die in our state. The incumbent, Steve Troxler, favors keeping the gas chamber as a method of euthanasia. Gassing is a horrible way to die; it is often reported that animals cry, defecate, urinate, claw to get out, fight each other, vomit, etc.

National humane organizations recommend injection of sodium phenobarbital as the preferred method of euthanasia.

Ronnie Ansley, has said, “I believe we should always look to the most humane way to handle euthanasia, and I do not believe gas chambers are the way to handle this issue.”

Wake County Judicial Elections

Most of the local Judicial races are "unopposed" and so we don't need to discuss those.  Don't be frustrated by not having a choice.  No choice means that the local attorneys feel that the Judge is doing a good job and therefore no lawyers feel the need to "run against" the incumbent.  That's good news, really.  Of course, opposed races don't mean anything bad about the incumbent, just that someone decided to run.  Don't read into it either way is what I'm saying.

Here are my recommendations in the contested races:

Jacqueline L. Brewer (incumbent) District Court Judge

Judge Brewer is the incumbent who was appointed to a new seat by our current governor.  She came from the prosecutors office after 26 years there and by all accounts has been a great Judge.

Anna Elena Worley,(open seat) District Court Judge

http://annaworleyforjudge.com/

Anna Worley is a:

Board-certified Family Law Specialist

DRC-certified Family Financial Mediator

1996 Wake Forest Law graduate

Spanish-speaker

I've known Anna since undergraduate days at Wake Forest.  She's amazingly fair minded and knowledgeable.  Her knowledge of family law is a very important attribute for the District Court as the District Courts handle about 99% of family law disputes. Anna won the primary election by almost 10,000 votes over her opponent in this election.  She'll be fair and hold everyone to the burden of proof they have.  While her opponent is a very nice guy and a good lawyer, he's recently been arrested for a second DWIwhich I believe would compromise his ability to be a District Court judge because if he is convicted (his first court date is October 17th) he could be subject to sanctions from the Judicial Standards Commission.   I realize that no one is perfect and we all make mistakes and everyone is innocent until proven guilty but this is a very recent mistake, during an election and would mean we are electing a Judge entering the office under the cloud of a controversy.   District Court judges are the court officials that decide guilt and innocence for DWI convictions.  To me, this seems like a real problem to be both the defendant and the Judge.

Christine Walczyk (incumbent) District Court Judge

http://www.judgechristine.com/

Judge Walczyk attended the University of North Carolina School of Law at Chapel Hill and went on to open her own law practice in Raleigh.  She's the incumbent and is well liked and respected for her judicial demeanor.

Her opponent in this race has been criticized for unprofessional behavior.  In 2003, before the Wake Public Defender's Office was created, Senior Resident Superior Court Judge Donald Stephens barred Rand (her opponent) from representing indigent clients where the State pays for the legal defense.  Here is the full article from the N&0.

YOUR VOTE COUNTS- Verify your voting status and vote early

If you want information about your local race, you can view a personalized sample ballot (and check on your registration status) at the NC State Board of Elections website.  Just enter your name and you can verify your voting status, voting location, and view a full sample ballot for your voting precinct.

Election Day is Tuesday, November 4, and "early voting"  (one stop voting) begins Thursday October 16 through Saturday November 1st.  Wake County Early Voting information can be found here on the Wake County Board of Elections Website.  State wide early voting information can be found here at the State Board of Elections One-Stop Voting Guide.

Exercise your right to vote! 

CLICK HERE FOR A PRINTABLE GUIDE in PDF format:  Download 2008_voting_guide_1.pdf

__________________

Chris Nichols

www.NicholsTrial Law.com

McCain v. Obama on Tort Reform

I try to keep this Blog fairly apolitical, but during an election season that can be difficult.  My feelings about so-called "tort reform" are pretty clear:  it is generally a terrible idea that only hurts the truly innocent- people who have been hurt by someone else's negligence.

That said, where do Obama and McCain stand on Tort Reform?  I've tried to present the information below from the most unbiased sources I can find.

  John McCain on Tort Reform

I've included some links from traditionally conservative voices.  The Club for Growth and an AMA related website.  Most of the information is somewhat critical of McCain for not supporting tort reform "enough."  Because of the nature of the primaries, there is plenty of information about McCain and tort reform from conservative sources (most of which didn't think he was tough enough on tort reform).

From: The Club For Growth:

 

Tort Reform

The American economy suffers from excessive litigation which increases the cost of doing business and slows economic growth. The Club for Growth supports major reforms to our tort system to restore a more just and less costly balance in tort litigation.

Senator McCain's record on tort reform is generally positive. These votes include:

• Sponsored the Class Action Fairness Act of 2005 which sought to curb lawsuits by shifting suits from state to federal courts, by requiring judges to review all coupon settlements, and by limiting attorneys' fees in non-cash settlements^[65]
• Voted for a bill that would bar lawsuits against manufacturers, distributors, dealers and importers of firearms^[66]
• Voted for a bill that would place caps on damage awards in medical malpractice suits against obstetricians and gynecologists^[67]
• Voted for a motion to proceed to a bill that would cap non-economic and punitive damages in medical malpractice suits^[68]

This generally positive record, however, is tarnished by Senator McCain's sponsoring of and outspoken support for the Patients' Bill of Rights,^[69] which encouraged an increase in the number of frivolous lawsuits filed against healthcare providers. He also voted against the Litigation Uniform Standards Act, which limited the conduct of securities class actions under state law.^[70]

And for what it is worth, here is a transcript from a Rush Limbaugh Radio Show where Rush refers to the above website in order to assess McCain's willingness to implement tort reform.  Rush seems to agree with the above- McCain has a good start but could do even better on tort reform.

If we assume that what a politician promises in one election they would support in another election, we can go back to 2000 when McCain was running against Bush in the Republican primary.  McCain's website then stated:

"John McCain has been a leading proponent of lawsuit reform at the federal level. He recently authored the Y2K law that will help limit potential frivolous lawsuits resulting from the Y2K computer problem while also protecting the rights of those truly injured to bring a legal action. The bill addresses the needs of businesses that may find themselves as both plaintiff and defendant, by providing incentives to fix Y2K problems, not rush to the courthouse.

"John McCain has and will continue to fight to reform our nation’s product liability laws. He supports reforms that would establish a time limit on liability for most products and cap damages on small businesses. He has also worked to provide liability relief to small businesses by sponsoring legislation that limits punitive damages and eliminates joint liability for non-economic damages for small businesses that employ less than 25 people.

"John McCain also supports small business relief from 'Superfund' liability. He believes the law imposes too severe a penalty on small businesses. He supports changing the regulations to limit the liability of small businesses to the amount of pollution they directly caused to a site, and no more."  From Freedom Works

Back to 2007.  From a physician website, MedPage Today:

Arizona Sen. John McCain said tort reform is a top priority. He's supported caps on awards and expressed some support for a loser-pays rule. "We cannot let the search for high-quality care be derailed by frivolous lawsuits and excessive damage awards. … Liability reforms should eliminate lawsuits for doctors [who] follow clinical guidelines and adhere to patient safety protocols."

McCain laments increased costs stemming from defensive medicine. "In every other industry when technological advances are implemented, costs to the consumer decreases," he told supporters in South Carolina. "This is not the case in health care. … I can't tell you the number of tests that all of us in this room have taken just so that doctors won't be sued for malpractice."

And while this is not necessarily a "tort reform" issue, McCain supports changes to our health care system which would take most self-funded health insurance plans OUT of ERISA pre-emption.

The senator does suggest he would change current pre-emption provisions in the Employee Retirement Income Security Act, when he says he would "give states the flexibility to, and encourage them to experiment with: alternative forms of access; risk-adjusted payments per episode covered under Medicaid; use of private insurance in Medicaid; alternative insurance policies and insurance providers; and, different licensing schemes for medical providers."

ERISA adjustment is also implied by his call to "build genuine national markets by permitting providers to practice nationwide" and his proposal to "allow individuals to purchase health insurance nationwide, across state lines, to maximize their choices."

Obviously, in North Carolina, taking self funded health plans out of ERISA would have a "pro-plaintiff" benefit because self-insured entities would be subject to NC's anti-subrogation rule.  Clearly, this is an unintended consequence for our state.

Finally, according to AllBusiness.com, McCain has publicly lamented increased costs stemming from so called defensive medicine, where doctors allegedly over-cautiously order multiple tests in the hopes of avoiding any mistakes or liability. "In every other industry when technological advances are implemented, costs to the consumer decreases," he told supporters in South Carolina. "This is not the case in health care.... I can't tell you the number of tests that all of us in this room have taken just so that doctors won't be sued for malpractice."

Barack Obama on Tort Reform:

  As a lawyer and constitutional law expert, Obama has spoken favorably of civil litigators at times, but has also been noted in the press to be somewhat more critical of "trial lawyers." While campaigning for the Senate in Illinois years ago, he said, "Anyone who denies there's a crisis with medical malpractice is probably a trial lawyer." [Unsubstantiated info ahead] Furthermore, it has been noted that Obama voted in favor of caps on non-economic damages in medical malpractice cases when he served in the Illinois General Assembly. [NOTE: I pulled this quote from a business website doing a neutral review of the tort reform stances of the candidates.  It was old (pre-nomination) and fairly balanced.  Of course, there was no reference in the article.  I've been questioned on this now, so I'm trying to verify the so-called votes.  Frankly, I was suprised that Obama would vote for any type of cap given his Constitutional experience, so this could be my bad reporting compounding someone else's bad reporting.  Good thing I'm not a reporter!]

 

In 2005, Barack Obama voted for CAFA, the Class Action Fairness Act of 2005. Who voted against it? Hillary Clinton, Dick Durbin, Ted Kennedy, Pat Leahy, Joe Biden, Barbara Boxer and other progressive Democrats.  The Class Action Fairness Act was strongly supported by business groups like the US Chamber of Commerce.

The ABA describes CAFA in this way:

In a nutshell, the Class Action Fairness Act has two principal parts. One set of provisions establishes new procedural and substantive standards applicable to class action settlements. Some of these merely duplicate (or add little to) existing practice under the Federal Rules of Civil Procedure, but others — such as new limitations on attorneys’ fees in coupon settlements and requirements that government officials be notified whenever a class action settles — are brand new.

In addition to the CAFA bill, Obama has taken a position on medical malpractice tort reform which focuses on improvements in patient care and lower error rates.  In fact, Obama and Hillary Clinton co-authored an article in the May 25, 2006 issue of the New England Journal of Medicine, entitled "Making Patient Safety the Centerpiece of Medical Liability Reform."

In conjunction with the publication of their article, Obama and Clinton introduced and co-sponsored the National Medical Error Disclosure and Compensation (MEDiC) Act of 2005, a bill that, in part, would have required hospitals to disclose errors to patients and would have also created a national patient safety database. The bill further proposed to create a Department of Health and Human Services program that would seek early compensation for patients and offer liability protections to doctors in exchange for their disclosure of errors and apologies. This legislation was never realized and died in 2006.

The Last Frontier:  The Supreme Court of the United States

Other than the candidate platforms and positions, many would argue that the real "tort reform" is accomplished by appointing Judges who will take "tort reform" positions on legal cases.  Justice John Paul Stevens (88 years old) and Justice Ruth Bader Ginsburg (74 years old), are both considered to be left leaning and potentially ready to retire in the next four years.

About the Supreme Court, Obama has said in a July 7, 2007 speech  "We need somebody who's got the heart, the empathy, to recognize what it's like to be a young teenage mom. The empathy to understand what it's like to be poor, or African-American, or gay, or disabled, or old. And that's the criteria by which I'm going to be selecting my judges."

McCain has said, "I tell you I will nominate only people who have a clear, complete adherence to the Constitution of the United States and do not legislate from the bench. That's who I'll nominate to the U.S. Supreme Court."

This article will not attempt to futher address the issue of Supreme Court appointments, though obviously the candidates would presumably appoint Judges who agree with their general philosophy on the law.  Whether that position is "pro-consumer" or "tort reform" will be for the reader to decide.

I'll update this article as I find more information.  Obviously, John McCain has a long voting record, so there can be much more analysis of his voting positions than of Obama.  I may also try to take a look at the positions taken by Biden and Palin, although, again, Biden will have a much deeper record than Palin.

----Chris Nichols

Nichols Law Firm

Law Suit Crisis in NC? Not even close, malpractice refund check "in the mail"

As a personal injury lawyer in the state capitol, Raleigh, I hear a lot of "complaining" by physicians about "crazy lawsuits."  I always tell them (many of whom are friends) that malpractice lawsuits in North Carolina are either declining or at worst, holding steady. 

The main insurer for physicians, NC Medical Mutual, has just announced that they MADE so much money last year, they are issuing a refund to doctors.  And guess what?  This is NOT a result of tort reform.  We have had no major laws pass in our state which resulted in "savings."

In fact, based upon actuarial studies, the reality appears to be that when lobbyists for the insurance companies were screaming for tort reform, what they were doing behind the scenes was RAISING premiums for physicains to create what I would call a "manufactured problem."  The doctors' own insurance company was gouging them, and then asking them to donate money to "tort reform" causes, which of course, are insurance company lobby groups.

Looks like the physicians have finally reigned in their own insurance company by realizing that the "crisis", if there is one, is mostly in the minds (and wallets) of the insurance industry.

from the News and Observer

N.C. insurer to pay dividend
Medical Mutual will also pay off debt as drop in malpractice suits boosts profit

David Ranii, Staff Writer
The state's largest medical malpractice insurer says that fewer lawsuits filed against doctors will allow it to pay its policyholders a $3 million dividend -- its first dividend ever.
Raleigh-based Medical Mutual Insurance Co. of North Carolina said it posted a 7.4 percent increase in profit last year as the number of lawsuits filed against its policyholders fell to 298 last year. That's down from 326 in 2006.

In addition to paying the first dividend since the company was founded in 1975, Medical Mutual also plans to erase its $10 million in debt this year. And, over the next four years, it plans to refund $12 million in capital supplied by its policyholders in 2003 as part of a plan to shore up the company's finances and stabilize its premium rates.

In recent years the N.C. Academy of Trial Lawyers, whose members include the personal-injury attorneys who sue doctors for malpractice, has bashed Medical Mutual for charging rates that the lawyers' group labeled excessive.

Medical Mutual's CEO Dale Jenkins said the dividend and capital refund to shareholders demonstrates "we are a very good steward of the resources the [doctors] have provided to us. We recognize every day that it is their money."

Medical Mutual hasn't sought a rate increase from state regulators since 2005. The latest positive financial results will allow the insurer to hold rates steady again this year.

Medical Mutual's dividend will be in the form of a credit that physicians receive when they renew their policies, said Jenkins. The average credit will be about 5 percent of the annual premium for most of the 6,300 North Carolina physicians who are policyholders. Medical Mutual is a mutual insurance company that is owned by its policyholders.

"We're always glad to see a company ... able to give money back to its shareholders," said N.C. Insurance Department spokeswoman Chrissy Pearson.

Jenkins said the number of medical malpractice lawsuits has fallen nationwide. In addition, Medical Mutual has taken steps aimed at limiting lawsuits. The company has established stringent underwriting guidelines in order to avoid insuring doctors it considers high-risk, Jenkins said. "We do not take all comers," he said.

The company also sends out teams of nurses to assess doctors' practices and recommend ways to minimize risks, he said.

Profit last year totaled $26.1 million, up from $24.3 million in 2006, Medical Mutual reported. Assets increased by $44.9 million, to $416.2 million.

_______________________________________

Chris Nichols

www.NicholsTrialLaw.com

Contributory Negligence in NC: why comparative won't raise insurance rates

NC Lawyers' Weekly has provided a great link to an article that was run in the Winston-Salem Journal about contributory negligence laws in North Carolina. 

Contrubutory Negligence is an issue that people don't know or care about, until they face the problem themselves.  Basically, in NC, even if you are hurt by someone else's negligence, if the other person can prove you are just a little bit to blame for your injury, you are barred from any recovery.  That's right.  Someone else is 99.9% to blame, and you are barred from recovery.

Columnist Scott Sexton has written a series of excellent articles on the subject and really puts a human face on this convoluted and political issue.  I highly recommend reading these articles.

I'll also add this to the mix.  One of the problems with contributory negligence is that it is so often a bar to people seeking legal representation.  Lawyers who represent injured people know that they could spend years working on case and lose everything at trial simply because a jury felt the Plaintiff may have played some very small part in causing the accident.

Here are some the the previous articles by Sexton:

Contibutory Negligence: it's "an insurance company's dream "

"Never mind that Joshua was 7 years old and was within 3 feet of the curb, or that Logan was drunk and driving on the wrong side of the road. "By way of affirmative defense, Defendant Logan pleads the contributory negligence of the decedent Plaintiff Joshua Franklin Palomares-Beckles," wrote Rodney Guthrie, Logan's attorney. If a jury in North Carolina decides that you are even a tiny bit at fault in this sort of case, you are entitled to nothing under state law, under a concept called contributory negligence. "In general, I'd say contributory negligence is an insurance company's dream," said Walter Holton Jr., the attorney who filed the lawsuit on behalf of Beckles-Palomares. "

Wreck victim faces being victimized by outdated law

"After an automobile accident in New Hanover County involving his daughter, Ashley, a student at the University of North Carolina at Wilmington, Norris has become something of an expert on a legal concept known as "contributory negligence," an outdated and completely unfair area of insurance law used only here and in three other states. That leaves option C. "Our insurance company is also using the contributory-negligence law claim that Ashley is limited in what we can recover," Norris said.

'There is no lobby for the little people' in this state

"Just four states - North Carolina, Virginia, Alabama and Maryland - still hang on to the concept of contributory negligence, a relic from English Common Law. "

Don't believe hype that law would increase insurance rates

By Scott Sexton

JOURNAL COLUMNIST

Scott Sexton
Email	Bio

On its face, insurance law - specifically a legal concept called “contributory negligence” - is something that only a serious policy nerd could love.

That is, unless (or until) you or someone you know gets hosed by that law. Then it’s not so boring.

Contributory negligence works like this: If you’re in an accident and deemed to be just 1 percent at fault, you’re not legally entitled to one red cent to cover your damages from the idiot (or his or her insurance company) who was 99 percent to blame.

Three recent columns explored some of the more outrageous abuses of this law. Possibly the worst was the insurance-company attorney who argued that a 27-year-old man killed by a hit-and-run driver in October 2003 while changing a flat tire in Orange County was partly responsible for his own death.

It’s a shameless, outdated blame-the-victim strategy. It also seems like an easy law to change.

Yet objections remain. The state, for example, could switch to a “comparative-negligence” system. If you’re 90 percent at fault, you (or your insurance company) pay 90 percent of the damages.

“Comparative negligence is a nightmare to apply. Few people agree on the percent fault they are assessed, it increases lawsuits, is a cash cow for lawyers, and raises everyone’s insurance rates,” wrote one reader who works in the insurance industry. “If you haven’t noticed, N.C. enjoys some of the lowest auto-insurance rates in the country.”

Good point. And it’s one worth exploring.

Low-rate state

North Carolina does indeed enjoy consumer-friendly auto-insurance rates - the sixth lowest in the country, according to the N.C. Department of Insurance.

That’s not, however, because of any sense of fair play by insurance companies nor because contributory negligence keeps costs down.

The credit goes to a man who next to nobody has heard of, state Insurance Commissioner Jim Long. He is basically the final word on insurance rates in North Carolina.

Every Feb. 1, the N.C. Rate Bureau - an umbrella organization representing insurance companies - files a rate request. The bureau then makes a rate recommendation. Actuaries and attorneys with the Department of Insurance negotiate any changes with the rate bureau. If there’s no agreement, then Long decides.

“It’s a pretty long and pretty dull process unless you are an actuary,” said Chrissy Pearson, a spokeswoman for the Department of Insurance.

Given that background, I figured that Long’s thoughts on the merits of contributory negligence versus comparative merits would be worth hearing.

You can read the rest of the article by going to the Winston-Salem Journal.

-Chris Nichols

www.NicholsTrialLaw.com

Great video on the myths of "Tort Reform": Mr. Fancy Pants

This is a great YouTube video on the issue of "Tort Reform."

The video does a great job showing how giant corporations have twisted and distorted the truth about law suits in America simply to poison jury pools.  They do this so they can continue to deny responsiblity for wrong doing, and basically "save a buck" at the expense of injured people who have done nothing to cause their own injuries.

It's about 8 minutes long and worth the watch.

http://www.youtube.com/watch?v=h85j1vNxd8A

or

_____________________________

Chris Nichols

www.NicholsTrialLaw.com

A Conservative Christian Physician against Tort-Reform

To often, politics of the right and the left interfere with the stark reality of tort reform.  In the past decade or so, conservatives have used "tort-reform" as a political "wedge issue" and have spent multi-millions of dollars to turn the public, and juries, against all Plaintiffs.

The article below was written by a self-described conservative Christian physician who deeply questions the politics of taking away justice from injured people in the name of politics and for the goal of profitting "big business."

This shows me that people are seeing that fairness and responsiblity are truly non-partisan issues, and that lawsuits, in and of themselves, are not "all bad."  In fact, lawyers and lawsuits have often been all that stands between the public and harm.

Remember the Little Guy 
by Steven Hotze, M.D.

Shouldn't companies and individuals who cause you harm be responsible for the damages they inflict?
            
You are probably aware of the lawsuits in the 1970s against Ford Motor Company and its Pinto automobile. Because of poor design, rear end crashes often caused the Pintos gasoline tank to explode into flames. Over 500 drivers lost their lives and thousands more were severely burned. Ford knew about this problem and that it would only cost $11 per car to repair but determined it was cheaper to pay the lawsuit settlements than recall the vehicles. Incredibly, Ford put their profits above the safety of their customers.
            
Because plaintiff attorneys were willing to file lawsuits on behalf of these injured individuals and families on a contingency basis and fight the multi-billion dollar Ford Motor Company, Ford paid hundreds of millions of dollars in judgments. Ford was also criminally charged with negligent homicide for having knowingly sold unsafe cars.
            
These lawsuits against Ford were based on product liability law which holds businesses responsible for any injuries caused by their products. The Ford lawsuits and resulting settlements sent a strong signal to the automobile industry. Safer cars have been the result.
Over the past decade, the Republicans in the Texas Legislature have passed a series of bills which have limited the liability of large corporations when they are found by a jury to have caused injury to their employees or their customers. This has me concerned and it should have you concerned as well.
            
Who wouldnt want limited liability for their actions? This is especially true of some large corporations which place their financial interests above the well being of their employees and customers. 
            
Under current Texas law, it is hard to imagine that Ford Motor Company would have been required to pay out such a large amount of money in judgments as it did at that time.
            
Tort reform has dramatically limited the liability of businesses and individuals in Texas. The Texas Legislature has set limits on the amount that a business or individual can be required to pay in judgment to an injured party. No one likes the idea of frivolous lawsuits, but most individuals seem to agree that a remedy should be paid to an injured party commensurate with the damage.
            
Who does this current law benefit? It benefits the large corporations and the well financed who have deep pockets and the wherewithal to hire a bevy of defense attorneys.  Their financial risk for shoddy workmanship and unsafe products has been dramatically reduced.
            
What about the small business owner or the individual with modest means?  How will they afford the assistance of a lawyer to help them be fairly compensated for their losses?
            
As a physician and conservative, I have a healthy distrust for big government and big business. The conservative position requires accountability for actions. It appears to me that the pendulum for tort reform has swung too far in favor of big business.

Its time to remember the little guy.

by Steven Hotze, M.D.

_______________________

Chris Nichols

www.NicholsTrialLaw.com 

How NOT to avoid Jury Duty

This just in from www.cnn.com

Every once in a while someone goes a little too far in trying to avoid jury service.  Looks like this guy went overboard in his attempt to avoid service on a grand jury, which amittedly, can take a lot of time.

I think the Judge did the right thing here.  Jury duty is one of the very few real things we can do to actively participate in our democracy.

BARNSTABLE, Massachusetts (AP) -- A Cape Cod man who claimed he was homophobic, racist and a habitual liar to avoid jury duty earned an angry rebuke from a judge on Monday, who referred the case to prosecutors for possible charges.

Daniel Ellis' excuses to try to get out of jury duty didn't sit well with the judge.

"In 32 years of service in courtrooms, as a prosecutor, as a defense attorney and now as a judge, I have quite frankly never confronted such a brazen situation of an individual attempting to avoid juror service," Barnstable Superior Court Judge Gary Nickerson told Daniel Ellis, according to a preliminary court transcript of the exchange.

Ellis, of Falmouth, had been called to court with about 60 other potential jurors for possible service on a 23-member grand jury.

On a questionnaire that all potential jurors fill out, Ellis wrote that he didn't like homosexuals and blacks. He then echoed those sentiments in an interview with Nickerson.

"You say on your form that you're not a fan of homosexuals," Nickerson said.

"That I'm a racist," Ellis interrupted.

"I'm frequently found to be a liar, too. I can't really help it," Ellis added.

"I'm sorry?" Nickerson said.

"I said I'm frequently found to be a liar," Ellis replied.

"So, are you lying to me now?" Nickerson asked.

"Well, I don't know. I might be," was the response.

Ellis then admitted he really didn't want to serve on a jury.

"I have the distinct impression that you're intentionally trying to avoid jury service," Nickerson said.

"That's true," Ellis answered.

Nickerson ordered Ellis taken into custody. He was released later Monday morning.

Ellis could face perjury and other charges.

Chris Nichols

www.NicholsTrialLaw.com

The Truth That Juries Never get to See

As I'm getting ready for a trial, I'm constantly reminded that the "reason the case is going to trial" has more to do with the defendant's insurance company than anything else.  It's frustrating as an attorney fighting for justice because I have the burden of proof for the "facts" of the case, but what the jury really needs to hear, I'm not allowed to tell them.

Why?  Well, the insurance industry has effectively "gagged" anyone from telling the jurors why the case is going to trial.  Typically, the reason for that is that the insurance company who pulls the strings on the defendant, WANTS the case to go to trial, because they know that for every case that goes to trial, 99 just give up, and the insurance company gets to pay less than what is "fair and just" as the rules require.

Here are some of the "hidden" rules and insurance practices that you only learn about after you've been hurt by someone else's negligence.

You Can Not Mention the Insurance Company at Trial

Under no circumstances can a Plaintiff mention the word “Insurance” in trial, even though the person who is being sued has insurance. You cannot mention Insurance, nor can your witnesses, including the doctors, police or anyone else who may testify for you. If you do, the judge will grant a “mistrial” and we will have to try the case over again.

NC Rule of Evidence: Rule 411. Liability insurance.

Evidence that a person was or was not insured against liability is not admissible upon the issue whether he acted negligently or otherwise wrongfully. This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness. 

Insurance is available in at least 99% of all auto accident cases that go to trial. But, the insurance industry has lobbied the legislature so diligently that it has created a set of court rules that absolutely prohibits the lawyers representing injured people from telling the jury the truth that the little old lady in the defendant's chair has had no choice in whether she is sitting there or not. She cannot settle the case even if she believes you deserve everything you are asking for.

The insurance company is completely in control of how much to offer the injured person, whether to settle the claim or not, and what they should contest in the lawsuit. So, even if the little old lady sitting in the defendant's chair wanted to settle the lawsuit for the same amount as what the injured person is requesting, the insurance company won't offer the money.

In North Carolina, the Plaintiff has virtually no right to sue an insurance company for improperly denying a claim or delaying the payment of what is due. Again, effective political contributions, and legal maneuvering by insurers have resulted in these rules.

Its cheaper to deny the claim than settle.

Believe it or not, insurance companies have saved Billions of dollars since the mid 1990s, by improperly denying claims, and otherwise forcing litigation by paying far below the jury verdict average to settle claims. Frivolous defenses to legitimate claims have resulted in an increase in litigation, against people insured by these companies. This is part of a deliberate claim handling program implemented by McKinsey & Company, the same consulting firm that set up Enron's business model, at many of the nation's largest insurance companies. See "Record Insurance Profits" Article

But, in jury selection, jurors often mention that if the injuries are real, the case should have settled with the insurer. That is exactly what the insurance company is hoping for. It doesn't matter if they offered $0.50 on a claim worth $500,000. The jury will never know, because the lawyers are prohibited from ever mention the settlement negotiations during the trial.

McKinsey & Company counted on this when they told Allstate Insurance in the mid 1990's to quit treating people with “Good Hands” and instead treat them with “Boxing Gloves.” When Allstate forced more litigation and posted record profits, the rest of the insurance industry followed their lead. It is now standard operating procedure in the insurance industry to spend multiple times what a reasonable settlement would be to fight the claim, simply to prove to injured people and their lawyers that filing a claim for injuries is more trouble than it is worth. Read a Transcript of Anderson Cooper's Interview with one of Allstate's Victims

That is because the end result is that most lawyers will not take the cases, and people will not file the claims themselves. These improper denials have led to a huge spike in bankruptcies in the United States, the leading cause of which is an inability to pay for medical bills. So, when jurors turn injured people away, everyone but the person at fault, and their insurer pay for the damage. Instead, the jurors take the financial burden themselves through higher taxes to pay for the bankruptcy. For more, see the article entitled “In Tough Hands” in BusinessWeek.

Judge Paul Ridgeway Rules Witnesses can be Sworn in With Quran

One of our local (Wake County) Judges has ruled that witnesses in court can now be "sworn in" with just about any religious text, including the Quran.  I completely agree with this decision and applaud Judge Paul Ridgeway for the courage to do the right thing.

Interestingly, the stories don't mention that witnesses already have the ability to "affirm" to tell the truth when being "sworn in."  This was an accomodation for people who's faith did not allow them to "swear" on the bible.

It only makes sense that a witness can provide their own religious text upon which to swear they will tell the truth.  I guess the point of the excercise is that if you truly beleive in the teachings of the bible, you would not want to offend God by lying.  So if you don't belive in the Bible as holy scripture, shouldn't you be able to swear on something you do believe in?

Honestly, I think this decision is only news because it involves the Quaran and Muslims.  Had we been talking about the King James v. the New King James v. English Standard v. New American Standard v. Revised Standard (RSV) v. New Revised Standard, etc, no one would have cared.  Of course, many folks argue over the "validity" of each of those translations of the bible.

I think Judge Ridgeway saw through the politics of the controversy, and realized that anything that promotes the real search for truth, would suffice. 

From the Greensboro News-Record

Muslims can now swear on the Quran when called as witnesses in North Carolina courtrooms, a Wake County judge ruled Thursday.

The decision represents a victory for the American Civil Liberties Union of North Carolina , which sued the state after two Guilford County judges rejected an offer from an Islamic center to provide county courthouses with free copies of the Quran.

"The highest aim of every legal contest is the search for truth," Wake Superior Court Judge Paul Ridgeway wrote in an 18-page opinion. "To require pious and faithful practitioners of religions other than Christianity to swear oaths in a form other than the form most meaningful to them would thwart the search for the truth.

"It would elevate form over substance."

The Guilford County judges argued that North Carolina law only allowed oaths to be taken on the Bible. Ridgeway agreed that a phrase in the law governing oaths, "Holy Scriptures," refers to the Bible, but he cited other case law that would allow a Muslim to swear on the Quran.

Chris Nichols

www.NicholsTrialLaw.com

MySpace to Begin Sharing Information on Sex Offenders

I think this is a decent idea, in general terms, though I doubt that it will do much to actually prevent predatory practices. 

Realistically, if a sexual predator is being "smart" they will have no real identifying information on their MySpace profile.  Given the absolute ease of setting up free and virtually untraceable email accounts, I don't see any way for MySpace and the Attorney General's office to "trace" predators to MySpace.  About the only thing that i can think of would be to require sexual predators to register their ISP Providers and addresses, and trace the original source of the profile that way.

I'll be interested to see if this actually "eliminates" any predators.  It is one thing to prevent predators from coming near schools and libraries.  The Internet is just so unregulatable, and is essentially one "big" play gorund for kids, and those who seek them.

MySpace to share sex offender data with states
By MARGARET LILLARD
Associated Press Writer

RALEIGH, N.C. - Faced with legal demands from several state attorneys general, MySpace.com said Monday it will immediately begin sharing data on the registered sex offenders it has identified and removed from the popular social networking Web site. MySpace balked last week when attorneys general from eight states, including Ohio, demanded it provide data on how many registered sex offenders are using the site and where they live. The company said federal privacy laws required the states to file subpoenas or other legal requests before it could release the information. MySpace general counsel Mike Angus said company officials met with North Carolina Attorney General Roy Cooper and Connecticut Attorney General Richard Blumenthal last week to sort out the details of those requests. "We hope to get requests from every state," Angus said. "From day one, we have preserved all the information in the hopes of getting these requests." MySpace, owned by media conglomerate News Corp., obtained the data from Sentinel Tech Holding Corp. The companies partnered in December to build a database with information on sex offenders in the United States, and Angus said MySpace has already used the database to remove about 7,000 profiles out of a total of about 180 million. The companies "developed 'Sentinel Safe' from scratch because there was no means to weed (sexual predators) out and get them off of our site," Angus said. Last week, attorneys general in North Carolina, Connecticut, Georgia, Idaho, Mississippi, New Hampshire, Ohio and Pennsylvania asked for the Sentinel data. The company initially refused, saying the federal Electronic Communications Privacy Act required the states to file a subpoena or similar legal request before it could release the data. North Carolina filed a civil investigative demand Monday, and states including Ohio, New York and Connecticut also pursued subpoenas. Blumenthal said his subpoena "compels this information right away - within hours, not weeks, without delay - because it is vital to protecting children." Cooper said the information from the Sentinel system could potentially be used to look for parole violations or help in investigations. He said lawmakers in North Carolina are considering legislation that would further restrict access to social networking Web sites, including one that would require parents' permission for minors to set up a profile.

READ THE ORIGINAL ARTICLE HERE

Chris Nichols

www.NicholsTrialLaw.com