North Carolina Trial Law Blog

Before I set up my firm in Raleigh, I practiced in the western part of North Carolina and lived in Hendersonville, south of Asheville.  I still maintain an office there as part of an "of counsel" relationship with my old law partners.  I have family there as well whom I particularly enjoy visting when it is 98 degrees in Raleigh with 95% humidity in June.

Hendersonville is considering adopting a local ordinance that would ban all registered sex offenders from entering certain public areas, such as parks, libraries, and recreation centers. 

Read the Asheville-Citizen Times Story of Banning Sex Offenders from Public Places Here

The story also cites a new NC law that will go into effect later this year that bans Sex Offenders from being within 1,000 feet of a school.

I like the idea of this law, but I'm a bit worried about the scope.  One of the problems that I see is not so much the law itself, but the fact that one can become a "registered sex offender" for crimes that do not involve children. 

Ways to become a Registered Sex Offender in NC
The following crimes get you on the list:
 

1. G.S. 14-39 Kidnaping.
 
2. G.S. 14-41 Abduction of Children.
 
3. G.S. 14-43.3 Felonious Restraint.

 

1. G.S. 14-27.2 First Degree Rape.
 
2. G.S. 14-27.3 Second Degree Rape.
 
3. G.S. 14-27.4 First Degree Sexual Offense.
 
4. G.S. 14-27.5 Second Degree Sexual Offense.
 
5. G.S. 14-27.6 Attempted Rape or Sexual Offense.
 
6. G.S. 14-27.7 Intercourse and Sexual Offense with certain     victims.
 
7. G.S. 14-178 Incest Between Near Relatives.
 
8. G.S. 14-190.6 Employing or Permitting Minor to Assist in     Offenses Against Public Morality and Decency.
 
9. G.S. 14-190.16 First Degree Sexual Exploitation of a Minor.
 
10. G.S. 14-190.17 Second Degree Sexual Exploitation of a Minor.
 
11. G.S. 14-190.17A Third Degree Sexual Exploitation of a Minor.
 
12. G.S. 14-190.18 Promoting Prostitution of a Minor.
 
13. G.S. 14-190.19 Participating in Prostitution of a Minor.
 
14. G.S. 14-202.1 Taking Indecent Liberties with Children.
       
        This also includes a conviction for solicitation to commit or conspiracy to commit a     "sexually violent offense".

C. An Attempt to Commit any of the Preceding Offenses.

D. A final conviction for Aiding and Abetting of an offense against a minor or a sexually violent offense would be registerable, if the court finds registration would serve the purpose of the Registration Act.

What about the "adult" offenses?
The offenses that include minors seem perfect for sex offense status that would prohibit the offender from staying away from children and places where children gather. 

The other offenses, committed by adults, against adults, while horrible, should not keep an offender out of the library.

Situational Offenders
The psychological research tell us that the profile of a child predator and an adult rapist can be very different. On the other hand, there is a group of people called "situational offenders."  These are people who are not pedophiles (i.e. they don't have a particular sexual attraction to children versus adults) but they choose their victims based solely on opportunity (who's easiest and most accessible).  There is study by Lanning, of the FBI’s behavioral sciences unit, who wrote a 1987 paper, Child Molesters: A Behavioral Anaylysis:

“Situational-type sex offenders victimizing children do not have a true sexual preference for children. They may molest them, however, for a wide variety of situational reasons. They are more likely to view and be aroused by adult pornography, but might engage in sex with children in certain situations. Situational sex offenders frequently molest readily available children they have easy access to such as their own or those they may live with or have control over. Pubescent teenagers are high-risk, viable sexual targets. Younger children may also be targeted because they are weak, vulnerable, or available. Morally indiscriminate situational offenders may select children, especially adolescents, simply because they have the opportunity and think they can get away with it. Social misfits may situationally select child victims out of insecurity and curiosity. Others may have low self-esteem and use children as substitutes for preferred adults.”

The Dilemma
The situational-type offenders are the ones that this new law may have the best "effect" upon.  the people that have committed crimes against adults, but "could" go after children if the opportunity arose.  At the same time, I still worry about limiting people that do not prey upon children.  It is a tough balance to strike, but one that should always favor the safety of children.

I personally don't think that child molesters can be rehabilitated.  Thus, let's keep them as far away from kids as we can.  On the other hand, adults that have committed offenses against other adults should be allowed into the library, or be able to drop their children off at school.

Click below to read more on this subject

I'm in the process of having one of my friends from RTP design and build me a custom computer to handle my office needs. (That's Research Triangle Park for those of you out of state.  Also known as the place that has driven housing prices "inside the beltline" through the roof over the last decade as more and more international companies make a nice little home for themselves smack dab in the middle of Raleigh, Durham, and Chapel Hill and Forbes and others keep calling us a "Top Ten" place to live.)

My current computer tends to bog down a bit when I have 15 windows open on my two separate 21 inch monitors and I'm editing a video to burn to DVD for a mediation, using VOIP with video camera,  answering emails, composing text, running a spread sheet in the background, and having my customized case management software accepting scanned documents.  Whew...

I'm one of those people that always researches things to the point of driving myself insane (when it is something like cars and computers, not law!).  So my buddy is doing the tough work and I'm nodding my head a lot.  He designs microcips or something even more complicated than that, so I have full faith in his understanding.

Anyhow, when we started pricing components and talking about the price "breaks" he sent me a link to a $10,000 computer system.  For that kind of money, I'd want it to drive me to work and give me a massage, but hey, that's me.

Check out the Tom's $10,000 computer system.  If you want to order one, I'd be happy to be the middle man for my normal commission...

Chris Nichols
www.NicholsTrailLaw.com

This post is a collection of important links for anyone dealing with an Ahlborn issue in relation to a Medicaid lien on a personal injury settlement.  Ahlborn allows an attorney to argue that Medicaid should not receive full reimbursement of a lien for payment of medical bills if the lien exceeds the portion of the settlement "allocated" for medical costs.

The "thumbnail" legalese version of the Ahlborn holding is this:

1) Arkansas statute automatically imposing lien in favor of ADHS on tort settlement proceeds was not authorized by federal Medicaid law, to extent that statute allowed encumbrance or attachment of proceeds meant to compensate recipient for damages distinct from medical costs, and

2) anti-lien provision of federal Medicaid law precluded Arkansas statute's encumbrance or attachment of proceeds related to damages other than medical costs

The OYEZ summary of the case (one page) can be viewed HERE.

My "practical" version of the implications of Ahlborn can be found here:
NC Trial Law Blog on Ahlborn

SUPREME COURT DECISION
The Ahlborn Supreme Court Decision .pdf link

Click HERE for the Rich Text Format of the Ahlborn case from Westlaw as posted by the Alaska Trial Lawyers which contains "hotlinks" to all cited authority and briefs.  You can dowload the case for free but to link to the other authority and briefs you will need a Westlaw password.

Here is the list of all the lawyers involved and all of the Supreme Court filing milestones.

BRIEFS AT THE SUPREME COURT
The Petitioner's Brief (Arkansas Medicaid)

The Respondent's Brief (Ahlborn)

The Petitioner's Reply Brief (Arkansas Medicaid)

AMICUS BRIEFS FROM ALL LEVELS
The Amicus Brief by ATLA/Center for Constitutional Law at Arkansas Supreme Court.(I need a copy of this brief, so if anyone has it, please send me a link or an upload)

The SC Amicus Brief by the United States in Support of Arkansas

SUBSEQUENT CASES CITING AHLBORN
Hat Tip to Steve Bricker of the Bricker Law Firm in Richmond, VA for sending me a New York case where the NY Supreme Court (their highest trial court, like NC's Superior Court) used Ahlborn the way it was intended.  Hopefully this will be a good "go-by" for other courts.

Click Here to Download Lugo_v_Beth_Israel_NY_42_USC_1396p.pdf

OTHER USEFUL AHLBORN LINKS
The Center for Constitutional Law's memo on "How to Use Ahlborn".  These are the folks that wrote the Amicus brief that was quoted by the Supreme Court in the majority opinion.  This is written by Lou Bograd from CCL and is a great guide.Download ahlborn_opinion_letter.pdf

This highly useful memo from the Department of Health and Human Services dated July 3, 2006,  provides the summary of how DHHS (The Fed. department charged with overseeing Medicare and Medicaid) interprets the Ahlborn decision in light of their own statutes.  This is a GREAT memo because it is the Fed's own instructions to "All Associate Regional Administrators for Medicaid and State Operations". This is a downloadable Word document that will allow you to argue against the State's probably "stricter" interpretation of the rules.  In North Carolina we have seen our Medicaid office argue "we have to get paid in full, the Federal Government mandates that."  No they don't.  Read it.

Social Services Law Bulletin # 41from the North Carolina Institute of Government by John Saxon. (.pdf download) This law bulletin was written as a "review" of the Ahlborn case to provide guidance to NC Medicaid.  The issue also addresses a NC Supreme Court opinion in the matter Ezell and explains how the author does not see how the two opinions can be squared with each other.  I wrote the Amicus in the Ezell case.

Medicaid Letter (Ohlahoma) Setting Out Ahlborn Criteria.  This letter appears to be a letter from Oklahoma Medicaid to a lawyer setting out what Oklahoma wants/needs to make a reduction in a Medicaid lien.  I think this is helpfu information to "guide" lawyers in jurisdictions where Medicaid has not figured out what they want or need to accomodate Ahlborn.  The link downloads the letter in word or allows for HTML viewing.

National Association of State Medicaid Directors Website.  This link takes you to the Medicaid Directors website where you will find all sorts of interesting information. Take a loom at the "insiders view".  The Oklahoma letter above came from the bowels of this website.

If you have any useful links to add to this collection, please email them to me or simply post below in the comments.  I'll make sure to credit you and provide a link to your blog/website if you want.

Chris Nichols
www.NicholsTrialLaw.com

My new law firm website is almost ready to go "online" now.

I need to upload some articles and make a few typo corrections, but it is ready to be viewed and critiqued.

New Nichols Law Firm Website(beta)

Check it out and feel free to comment here, or send me an email privately.

Thanks,

Chris Nichols
www.NicholsTrialLaw.com

Have you rasterized today?
I have been given a tip on how to make HUGE enlargements for exhibits from a recent law school graduate, and I want to pass it on to everyone.  The process is called "rasterizing" and it pretty much is breaking a picture into parts, and printing each part on a sheet of paper for assembly into one big picture.

Lawyers keep getting younger, and smarter
Every year I teach at a continuing education seminar hosted by the North Carolina Academy of Trial Lawyers.  The Seminar is designed to provide recent law school graduate with a "working knowledge" of things they don't teach in law school, such as personal injury law.  I teach on "How to Handle Personal Injury Cases from Start through Trial" which is a lot to cover in one hour.

Anyhow, a young lawyer named Shane Perry from Charlotte sent me an email giving me a tip on another way to make poster size (or larger) enlargements for trial exhibits.  Shane recently opened his own law firm in the Lake Norman area with an emphasis on real estate and franchise law.  Check out his website above for more details.

Rasterizing?!  What's that?

Well, if you want a thoroughly confusing "computer" definition that involves vector graphics and bitmap images, you can click right here.

Here is my definition:  Rasterizing is when you take any image file and ask the computer to make it significantly bigger.  Rasterizing uses those little "dots" of color you see in newspaper images.  The rasterizing program then figures out how much you can fit on a printable page, and "divides" up the image into that many pages.  Then when you print it, you get pages that will fit together into one big "poster" size version of your smaller picture.  Like drawing a huge picture on a field of post-it notes and then stacking them all up for easy carrying.  You could then reassemble them anywhere into the original "big" image.

Like this:

The Rasterbator is Free
Shane sent me a link to http://homokaasu.org/rasterbator/ which is a free on line software program called, you guessed it,  The Rasterbator.  You can either upload a file from your computer or use any file that is publicly available on the Internet. After you have cropped the image and selected a desired size, the rasterbated image will be sent to you as an easily printable pdf file.

Rasterbator says you can enlarge your image to 20 meters (@ 60 feet) in size.  Yikes, that's huge! 

Rasterbating is Easy
I rasterbated an image of a courthouse reflecting in a pond that I use on my website.  I enlarged it to poster board size which constituted 12 sheets of legal size paper.

The Rasterbator gives you an option for black and white, monochrome (select a color), and full color.

You upload the image, then crop, then select your output size.  The computer then rasterizes the image and sends you a .pdf version to print.

That didn't work for me. I could never find the .pdf.   But there is a download of the program which did work for me.  The download  did not have the "crop" feature, but you can simply crop your original image instead.

I'll come back and post a "before" and "after" photo but I'm not exactly sure if this is the best way to enlarge images for trial.  I'll have to experiment a little more, but the problem I see is that the image is best if viewed from a distance and gets a little weird if viewed up close.  I'll also have to see how words look when rasterized.

It is still a neat tool to have.  Thanks, Shane.

Chris Nichols
www.NicholsTrialLaw.com

My friend, attorney Julie Bell at Lewis & Daggett, in Winston-Salem, tipped me off that Medicare is going to change their lien processing system, again.  For a long time, we would deal with a local office.  Then we transitioned to a national office in New York and they would get us in touch with a local office.  I noticed very little improvement in the system.

Looks like Medicare is now going with a new national lead contractor and all requests will go to the same place.  The new lead contractor will also cover every step of the process, including final payment letters.  Note:  You will STILL "open" your files with the New York office.

As lawyers, we have to always worry about "conflict checks" so that we are not allowing an adverse party to disclose their "secrets" when we may represent the "other side."

The Pre-Emptive Conflict Strike

This is a most common problem for family law lawyers, especially in smaller towns.  What usually happens is that a couple breaks up, and one spouse knows there are only a handful of lawyers in town that practice family law.  That one (vindictive) spouse then tries to contact and discuss his/her case with every lawyer in town, intending, of course, to hire only one of them.  If he/she actually gets in touch with the other lawyers and tells them confidential matters, chances are that those lawyers can no longer represent the other spouse due to a conflict of interest.

Email Complicates Things

In the "good old days" before email and the internet, lawyers protected themselves and their clients from "conflicts" by either not answering the phone, or by screening callers through staff.  Another method was to actually talk with the person, but carefully control the flow of information so as to not receive any "confidential" information until such time as the lawyer actually wants to represent the client.

If a lawyer has an internet site, along with an email address, the mode of communication has changed.  A potential client could send a very long email containing confidential matters to the "target" lawyer, and when the lawyer opens the email, voila, instant conflict.

Great Article on the Subject

I found a great article on the subject by a law professor at Mercer named Professor David Hricik.  Professor Hrick analyzes ethics opinions and offers good suggestions for law firms to protect themselves and their clients form problems arising from email conflicts.

You can read his article here.

Chris Nichols www.NicholsTrialLaw..com

Medicare is the Federal health benefit available to seniors and those determined to be disabled by Social Secuirty Disability.  Every pay check you get has taxes taken out to pay Medicare.  If you have a personal injury case and receive a settlement, Medicare has a right to be paid back for any medical costs they have paid as a result of some third party's negligence.  Think of it as Medicare "loaning" you the money until you get your settlement.

Medicare Formula:  They don't get all the money

Medicare "allows" for attorney fees when they get their money back.  Here is how that works:

HOW to Reduce Medicare's Lien:

1.      Total Amount of Liability Settlement:  $________     

        Amount of Medical Pay Settlement: +  $      _____

                     TOTAL Received(ITEM A)      $________       

2.      Amount of Attorney's fees                  $________     

         Other Procurement expenses/cost +  $      _____

                     TOTAL Fees/Costs (ITEM B)  $ ________    

3.      (ITEM B) $_________  ÷  (ITEM A) $_______ = RATIO  ._____    

4.      LIEN x RATIO = $ ________Reduction Amount     

5.      LIEN – Reduction Amount = FINAL LIEN $__________ 

Here is an actual example of how the lien works out using a "real life" scenario:

EXAMPLE

Medicare Claims $40k

  $100,000   Settlement

+$   5,000   Med Pay

  $105,000  ITEM A

  $33,333.33   Attorney Fees

+$ 5,642.00   Costs

  $38,975.33  ITEM B

Item B $38,975.33 ÷ Item A $105,000 = .3711

$40,000 (total lien claimed) x .3711  =  $14,844.00 Reduction Amount

$40,000 - $14,844 =  $25,156 FINAL LIEN

Because Medicare is a Federal Program, this formula should hold true for any state in the nation.  Of course, each area will have a different Medicare contact number.

Chris Nichols

www.NicholsTrialLaw.com

My friend Holly sent me this bit of news. New law becomes effective today; Medicaid recipients required to provide proof of citizenship (See below my comments for the story)  I have mixed feelings, but in the end, I don't think this is the right move for our government.  On the one hand we don't want to "give" medical help to the poor who are not citizens, but at the same time our country doesn't do much to prevent people from coming here to provide cheap labor. 

Also, I recently heard a statistic that many illegal immigrants actually pay a lot of taxes.  Here is how that works.  Most illegals will use a fake Social Security number to get low paying jobs.  Or they will apply for a Tax Id so they can get driver's licenses, etc.  The employer, in a typical wink and nod fashion, says, "Ok, you have a Social Security #, you MUST be legal."  Then the employer does the standard state and federal witholding to "prove" that they "thought" the employee was legal.  The employee gets a W-2 at the end of the year.  The employee/illegal usually never files a tax return, and they never get a tax refund.  Thus, millions of "unclaimed" dollars flow into the Federal Reserve that probably would not be there if the workers were naturalized and were scurrying to H&R Block for their "tax refund loan" at the annualized interest rate of 98%. (A subject for another day!) 

Medicaid, is, of course, funded with tax dollars as is Medicare, which has it's own separate tax right on the W-2.  So, in many instances, these "illegals" are absolutely paying for their right to receive Medicaid. 

Finally, people get sick whether they have health benefits or not.  Hospitals are not allowed to refuse treatment to very sick people in the ER.  So by denying Medicaid benefits, the federal government is simply passing the buck on to private  and state local hospitals, who will, in turn, pass the buck to consumers.  Also, by denying Medicaid, which will pay for "well" visits and preganacy care, when people do come to the ER they will be sicker and the the treatment will be costlier.  In the end, this will "cost" as much as it supposedly saves, I think.

I think this is classic penny wise-pound foolish thinking and is more motivated by politics than good sense.  Not to mention, we are a wealthy nation, we can afford to take care of the poor.  Especially when they are the ones doing the dirty work.

New law becomes effective today; Medicaid recipients required to provide proof of citizenship

By James Romoser

JOURNAL REPORTER

Friday, September 1, 2006

Starting today, people in North Carolina who are on Medicaid will have to prove that they are U.S. citizens, or they will risk losing their health-care coverage.

The new documentation requirements are part of a federal law intended to prevent illegal immigrants from getting health benefits through Medicaid, the government-run health-insurance program for the poor.

The Congressional Budget Office estimates that the law will save the federal government $735 million over 10 years.

But local Medicaid officials and some national health-care advocates say the new rules are too strict and mostly unnecessary. There is not a widespread problem of illegal immigrants getting Medicaid, they say. Some critics worry that the rules will hurt Medicaid recipients who are citizens but for some reason are unable to produce a passport, an original birth certificate or other required documents.

The rules will further complicate a process that is already strenuous for both Medicaid applicants and social-services caseworkers.

"You can basically get a million-dollar mortgage easier than you can get Medicaid," said Joe Raymond, Forsyth County's director of social services. Medicaid, a federal program, is run mostly by the states and is administered at the local level through county social-services departments. Applicants must meet income requirements and other eligibility criteria.

READ the full story here.

Chris Nichols

www.NicholsTrialLaw.com