JOEL BIEBER'S BLOG

The Sentencing of Michael Vick

     The blog title sounds like a scary movie. For Mike Vick right now, I am guessing that he is worrying about the ending. On December 10, he faces sentencing in his dogfighting plea that could result in an incarceration of 5 years. Many had speculated that he would receive approximately 18 months. Today, we received some insight into that upcoming hearing, when two co-defendants were sentenced.

     The two co-defendants received sentences of 18 and 21 months. The longer sentence went to defendant Phillips because of his prior criminal record. Both espn.com (article)  and Pilot Online (article) provided some insight into the hearing today. Strangely,one of the defense lawyers remarked to the Judge that he still did not understand the Federal Government's decision to prosecute these cases. In addition, the pre-sentence report of defendant Peace quoted him as saying that he still didn't see what was wrong with dog fighting.

     In light of these sentences, what can Mike Vick now expect. On December 10, he will walk through a side door to the courthouse, go through those doors probably shackled like a prisoner, he will then walk straight into Judge Hudson's courtroom on the first floor. Based upon the Judge's remarks today, the Judge will tell him how cruel and callous he was. The prosecutor will remind the Judge that Mike Vick was the last to plead guilty and the last to accept responsibility. He will also remind the Judge that Vick tested positive for marijuana, since entering his plea agreement. Then, Vick's attorney will probably reiterate that Vick has accepted responsibility, has lost so much already and has already entered into incarceration voluntarily, to show that he accepts responsibility.

     I expect that Judge Hudson will look down at his notes and begin to read the sentence. It will include a discussion of the egregious charges. Notwithstanding all these arguments, I expect that the Judge will go above the requested sentencing guidelines because of the previous plea stipulations that were entered into between prosecutors and Vick. My guess is that I expect that Judge Hudson will sentence Vick to 24 months, an amount above Peace. In looking at the sentencing today, perhaps he will give Vick the 21 months since Vick has no prior criminal history. Then,Vick may be able to serve less than the sentenced amount depending upon several factors that include meeting certain conditions during the incarceration. My guess is that he will serve approximately 90% of the total sentence.

     When Vick drew Judge Hudson as the assigned judge on this matter, he could expect a fair Judge who would allow the lawyers to fairly try the case to the jury. Those of us who have been before this Judge on other matters also knew that this Judge would give a great deal of thought to the sentencing and then give a sentence at or above the requested guidelines for this crime. The clue from today is that Vick will be sentenced for more than the 12-18 months, the amount that had been floated as the "hoped for" sentence.   

The Politics of Medical Malpractice

     It's about this time in every campaign season that politicians start a rant about medical malpractice. On the Presidential campaign trail, Mitt Romney trumpeted that, "these lottery-sized awards and frivolous lawsuits may enrich trial lawyers, but they put a heavy burden on doctors, hospitals and, of course, through defensive medicine, they put a burden on the entire healthcare system."  In a Boston Globe article(here) Rudy Guiliani jokes that he may have to move to Texas for medical care. However, in that same article, one man tells the story of not being able to hire a lawyer there, because noone will take his case because it is not economically viable.

     On the same day that this Boston Globe article appeared, there was also an article in Yahoo news(here) where a Rhode Island hospital admitted to performing brain surgery on the wrong side of a man's head. Unfortunately, this is the third time this year that this hospital has made the same mistake. Health officials have recommended that the hospital analyze its procedures and surgery plans. Really?

     A day later, the LA times (article) reported that a 33 yr old man who collapsed and died last month, after waiting more than three hours at Olive View-UCLA Medical Center to be treated for chest pains. Medical records show that this man told a triage nurse that he had arm pain, chest pain and chills. His vital signs were taken but he was never given an electrocardiogram, a test that is used to diagnose heart attacks. The American College of Cardiology says that the standard is to administer that test within ten minutes of a patient's arrival to the emergency room. The county's medical director said that this has prompted them to launch an extensive retraining of its nurses.

    Back to Texas, there is a $250k cap on pain and suffering awards. Consumer groups say that this limits legitimate claims. Politicians are adopting it as part of their campaign platform. In the two examples of care recited in this blog, the recoveries would be limited in Texas, if that care had been rendered there. If you quizzed the politicians on these two cases, I'm sure that they wouldn't say that these were frivolous claims. Unfortunately, cases like this could be recited regularly. Yet, noone can point to any large verdicts in malpractice cases that result from "frivolous lawsuits". In fact, one adjuster told me last year that in North Carolina, the last 24 malpractice trials had ended in verdicts for the defense, no liability on the doctor. The average malpractice trial has a cost of over 100k to pursue. In light of that, does it make sense for a lawyer to "bring a frivolous lawsuit to court"?

     When politicians attack lawyers and lump all malpractice claims as frivolous, they are attacking our judicial system. They are saying, jurors are too stupid to have the responsibility of deciding cases. With the attack on our judicial system and an attack on the rights of the injured, political season must be in full session.

      

The Power of One

     The title of this blog suggests that it might be a motivational piece or a discussion of the importance of voting or a recitation of history with the lesson of Nixon/Kennedy, and how few votes can determine a President. No, this blog comes from a story that I read in a South Carolina newspaper called The Times and Democrat.

     The story goes like this. Samuel Farlow appears to have lost his re-election bid to the Orangeburg School Board. He retained an attorney to file an appeal to the State Election Commission. He wants to contest the election results.

     To file an election appeal, Mr Farlow was required to file his notice by noon this past Monday. His attorney walked into the office with the appeal papers and walked to the desk, where they were to be filed. The lady to receive those papers was not at her desk, so the attorney waited. She finally came walking up. At that point, the attorney says that he looked at the clock on the wall, which reflected exactly noon. The Clerk says that she looked at her clock on the computer and that it said 12:01. It was one minute beyond the time that the appeal was to be filed. As a result, the Commission says that the appeal was filed too late and that the appeal papers would not be considered.

     I am attaching the article, which shows a big picture of Mr Farlow. (article and picture). Look at the totality of the article and the picture and you decide if there are some other factors at work here. In this instance, one woman decided that one minute rules out the appeal. In addition, the article recites that the board met,voted and then met again and re-voted. Interesting. In this appeal, the attorney placed his client in a precarious position. I'll bet the next time that he arrives for his filing when that office opens!.       

False Advertising of Frivilous Lawsuits

     President Bush once said, "Too many good docs are getting out of business. Too many OB/GYN's aren't able to practice their, their love with women across America."  Of course he also said, "Rarely is the question asked, Is our children learning?" Of course, there have been books written on Bushisms. That last one I included, really has nothing to do with this blog. It just made me laugh.

     The reason that the President made this statement about doctors, funny though it may be, is because there has been a good PR campaign that we "need to stop frivolous lawsuits."  Chief in this assault on our judicial system is the Stella Awards that are supposedly presented to the "most outlandish lawsuits and verdicts in the US."

     The story goes something like this: Mrs.Merv Grazinski, of Oklahoma City, purchased a new 32-foot Winnebago motor home. On her first trip to an OU football game, she got up on the interstate and set her cruise control at 70 mph. Then, she decided she needed a sandwich and calmly left the driver's seat to go to the back of the Winnebago. Not surprisingly, the Winnebago veered off the road. The story goes on to say that she then sued the manufacturer for not putting a warning in the driver's manual that you couldn't leave the seat, while the cruise control was activated.  An Oklahoma jury awarded her $1,750,000 plus a new motor home. The Stella award email concludes that "Are we, as a society,getting more stupid?" The case stands for the premise that we need to stop these frivolous lawsuits.

     The Stella Awards were named after the McDonalds hot coffee case. Space doesn't permit me to outline the facts of that verdict, but that has become the poster child for curbing "runaway verdicts".  The problem with the coffee case is that most don't know the true facts. Worse than that, this Winnebago case is an absolute fabrication. However, rumors like these, circulate on the internet and land on some tort reformers website because columnists are too lazy or gullible to do real research. As a result, true victims suffer from such circulated nonsense in the name of tort reform.

     The next time you hear an elected official get up and recite the need to curb frivolous lawsuits, ask yourself, what fact is this based on. Go to such sites as Snopes.com to research these supposed urban legends. Perhaps when the President was saying "Is our children learning", maybe it should encourage us to research, ask question and learn instead of accepting such things as the "Stella stories", as being factual.          

Leftovers

     The commercial goes something like this. Everyone is dancing and singing. Life moves at a rhythmic pace as the music plays. Everyone is shopping with a smile because they are using their credit card and sailing right through the check out line. Then, someone actually pulls out a checkbook and the whole world stops. As soon as this apparent "imbecile" is hustled past the line, all the credit card users are quickly back to their life of dance and music. It seems as though there are no worries as long as you use your credit card.

     This week, former Governor Jim Gilmore announced that he was running for US Senate. In his world, the music is just beginning to play. He's back in the political game to take on Mark Warner for the seat that is being vacated by Senator John Warner. Unfortunately, momentarily, the music stopped for Gilmore when it was discovered that he still owes about 150k for his failed Presidential bid that he recently called off. A spokesman said that he is trying to raise the money to get this paid. However, an internet web company claims that Gilmore owes 5500 for the website. As a result, they have put the website up with an announcement that Gilmore has failed to pay them. A Gilmore spokesman in a Pilot Online story, claims that they tried to send $1000 as an initial payment on the debt.

     Today, candidates are lining up across this country to run for all sorts of political offices. Their policies are sometimes based in reality and, at other times, based in political expediency. As long as the music keeps playing, everyone hopes that noone will notice that some of these policies don't work. Will Social Security be there when we retire? Will Medicare be able to pay for medical bills and prescriptions? If you try to stop and analyze some of these policies, you could be the one that looks like the imbecile. Gilmore is running on being fiscally conservative. He claims that he will be able to take Mark Warner on as a tax and spend liberal. I guess he's hoping that none of us hear the music stop and that we keep going on with our happy lives. Too much turkey does leave us with alot of leftovers.       

Thanksgiving and the Law

     Thanksgiving is my favorite holiday. This year, family is coming up and I can't wait. It also gives me a time to reflect on all the things good. I may not know what the future holds, but I know who holds the future.

     A couple observations about the law and Thanksgiving, take me to the news headlines. I see that President Bush pardoned two turkeys. No, I'm not going to insert a Cheney/Scooter Libby joke here. I also saw that Michael Vick will be served turkey in a Virginia jail. No matter what the actions, I still feel bad for all that he has to go through.

     In looking at Thanksgiving, it also causes me to reflect on advances in the law, since that is the theme of this blog.  There was a time that one political campaign highlighted the strong opinions on the death penalty. In that race for Governor, Virginia voters rejected the attacks of one candidate on another, when the claim that representing people on death row should disqualify someone from being Governor. I am told that there was once an editorial in the Richmond Times Dispatch, that took the position that the death penalty is so important in our justice system, the it is acceptable to execute a few innocents in order to ensure that the guilty are also executed. Now, pursuit of justice has greater priority than such a callous view of its application.

    In my lifetime, I have seen the Court system determine a Presidential election. When the Supreme Court, by a 5-4 vote,elected President George W.Bush as President, the nation did not collapse into chaos.  That's because, despite the divided opinions on this, America is still the greatest nation on the face of the earth and we live under these God given freedoms for which we have so much to be thankful for.

     This time of year is a good time to stop and think and see the positive things that surround us. Unlike Christmas, we are not burdened with the hustle and we can enjoy all that God has given us. I hope you have a great Thanksgiving weekend.   

The Power of Positive Thinking

     In my line of work, people are calling me because something bad has happened to them. My job is to make the responsible pay. However, I also get to see the different ways in which people handle adversity. I am amazed by some, who have suffered the most but still have positive attitudes to combat their injuries. My job makes me search for positive thinking books and articles to help me stay positive in my work. In that pursuit, I came across an article by Joan Borysenko, She is the co-founder and former Doctor of the mind-body clinical programs at two Harvard Medical School Hospitals. She offered the following four methods in helping your overall mental health:

    1.Do not let your mind be pulled into worry. Spend time each day doing something that makes you feel good and keeps you in the present, whether it is gardening, meditating or walking in nature.

     2.Forgive wrongs. Letting go of anger and regrets can reduce stress and boost your immune system.

     3.Have gratitude. Before going to bed, be truly grateful for something that happened that day. Soak up those positive feelings.

     4.Imagine the health outcome that you desire. If you are fighting some illness or not feeling well, picture that illness disappearing from your body. If you have trouble visualizing a positive health outcome, begin by picturing other things that make you happy. 

The Disappointments in Life

     I received my copy of Fortune magazine and smiled when I saw the cover. On the front it asks,"What were they smoking?" Then it lists four CEO's who are credited with leading companies into major losses this year. They include Citigroup's Chuck Prince, with a 9.8 billion loss and Merrill Lynch's Stan O'Neal, with a 7.9 billion loss. Those returns are pretty disappointing. That got me to thinking, what disappoints me in my life?

     First,companies that just don't care. I received a notice today from Tele-aid, to let me know that I would be billed for $250 and that I needed to do nothing. They were honoring me with their services, for a car that I once owned. The problem is that I no longer own the car. Now, I had to do something to make sure that I would not be billed. So, I wrote them a letter today to advise that I no longer owned the car and that I did not need their services. However, if they did bill me for this unneeded service, I would bill them $500 and they would not need to do anything but pay it. My paralegal got a chuckle out of that.

     Second, I am disappointed by rude people. You let someone in line, in traffic, and they don't even raise a hand to say thank you. You walk into a store and the counter person doesn't even look up and acknowledge you. Or, the cashier, without looking up, says, "So, how was everything?" Of course they really don't care. That's why I always responds,"Great, how was I as a customer?" That gets them to look up. As they say, Be sincere, whether you are or not.

     The list could go on but I can't leave out one of my pet peeve disappointments. I am amazed that I regularly see woman walk through doors and never bother to look behind them to hold the door. My wife says that they're oblivious. Maybe so, but it makes me always want to say,"Hey, thanks for the door slam."

     When I look at my disappointments, I guess the good news is that they pale in comparison to those disappointments of those CEO's. When they went home at night, someone may have asked,"How was your day?" and they had to respond, "I lost billions of dollars."  All I have to say is "someone took my parking place today but life is pretty good".      

Confidence In The South Carolina Bar

     In South Carolina, it was recently announced that there had been a mistake that was made in the grading of the July bar exam. This mistake was not announced until after the bar exam results had been published, which was approximately two months after the testing. Upon inspection of those who had failed the July exam, it came to light that a Judges daughter had been one of the 20% plus tested, that had failed. The mistake announced resulted in having the wills and estates portion thrown out in the test score. As a result, 20 more were notified to have passed the bar exam. One of those whose fortune had changed was......... the daughter of the Judge.

     This announcement began to raise a few eyebrows in the legal profession. Of course, the Judge involved, announced that he had nothing to do with any of this but that he was glad that his daughter had passed the exam. I have seen a few mentions of this our our South Carolina legal listserv but mostly, lawyers have wisely been tight lipped about this matter. Yesterday, the South Carolina bar issued the following statement. I note this below for your consideration:

The South Carolina Bar regrets that recent events involving the bar examination have resulted in criticism of the legal profession. The South Carolina Bar has no role in any aspect of the bar examination process and has no information other than what has been stated by the Supreme Court. The South Carolina Bar encourages those charged with responsibility for the bar examination to further explain what happened and take steps to avoid a recurrence of these events.

Vioxx Settlement Questions

     My previous blog dealt with the Vioxx proposed settlement, by Merck. Some of the questions that have been asked have also been addressed by a Wall Street Journal article Q & A. Clients are asking, "When can I expect a settlement check?" I post this question and answer which states that payouts should start within 12 to 18 months. Anyway, here's the posted questions and answers that should address some of the information that we have also received.(Q & A's)