CA Update: Millington election lawsuit – There may be no need for a re-vote.

CA Update: Millington election lawsuit – There may be no need for a re-vote.

The Commercial Appeal ran a story today about the status of the election challenge lawsuit that the attorneys at Wiseman Bray PLLC are handling on behalf of the City of Millington.

We’ve spent the last several days reviewing election commission records and tabulations, and we are hopeful and believe that ultimately the City of Millington will be able to avoid a re-vote.  Indeed, as quoted in the story:

“We’re not ready to concede that once you throw out the invalid votes that it doesn’t conclusively prove that, in fact, it prevailed, and you can prove that to a mathematical certainty,” he said. “So, there is no need for a revote. We believe that will be the case, and that’s what we are prepared to argue.”

In other words, once the improper votes are identified and isolated, we believe that we’ll be able to show with mathematical certainty that the municipal schools sales tax referendum did, in fact, actually pass.  We hope to have a motion filed in court within the next 7-10 days with more detail outlining the basis for our contention.

Stay tuned…

Why it Pays for Small Business to Use a Small Law Firm

small business lawyer

Why it Pays for Small Business to Use a Small Law Firm

If you run a small business, you have no doubt heard the usual reasons why you should consider taking your legal problems to a small law firm instead of a mega-firm:

  • Lower hourly rates (no subsidization of fancy offices, boxes at FedEx Forum, flashy overhead, etc.)
  • Better responsiveness (no “big shot” partner egos to deal with)
  • More attention (smaller pond = bigger fish)

All of which is true.  But how about this one:  BETTER SOLUTIONS!  We are a small law firm for small business.

Small Business + Small Law Firm = SUCCESS

Here is a real-life example of how a small law firm ended up being a better fit for the needs of small business.

A construction contractor client came to our firm with a problem.  Business had gotten slow, and the business decided to terminate a few employees, including one of its carpenters.  The client allowed the employee to finish out the workweek and went ahead and cut his final paycheck through the end of that week.  Unfortunately, the employee injured himself on the job just a few days later (his second-to-last day at work).  He understandably filed a workers compensation claim for his injury, to which the client had no objection.

However, the employee later went on to file a federal lawsuit alleging that he had actually been fired in retaliation for filing a workers comp claim – a claim which was patently untrue.  After all, the decision to terminate the employee was made before he had ever even injured himself.

The key piece of evidence ended up being the final paycheck which was dated prior to the date of the injury.  The employee claimed, however, that the check had been forged and backdated.  This allegation was potentially troublesome because it basically boiled down to a “he said, she said” dispute that would normally be a classic question of fact for a jury.  This meant the client was potentially staring down the barrel of a long, drawn out lawsuit ending with a trial.

Which is where the benefit of having a small law firm kicked in.

Small law firms think like small businesses because we ARE small businesses.  And so we know a thing or two about the practical, hands-on side of payroll and accounting software.  We use it ourselves every day.  And so we knew, for example, that most small business software packages contain built-in, anti-fraud features including a hidden, tamper-proof transaction log.  And while the actual purpose of having a tamper-proof transaction log is to protect the small business itself (by preventing bookkeeping employees from having the ability to manipulate financial records in order to hide embezzlement), the information proved invaluable for our client in this particular situation.  Indeed, we knew the client could access the transaction log which ultimately proved with a precise date/time stamp that the employee’s final paycheck had indeed been cut before he was  injured.

This single piece of information was ultimately sufficient to convince the employee’s attorney that the case had no merit, and so the lawsuit was literally resolved within mere days.  Which was all the more important because the client’s annual audit was only weeks away, and it desperately wanted to avoid having to disclose a pending lawsuit.

WE ARE SMALL BUSINESS.

Small law firms have a different, and arguably more relevant, knowledge base and experience than mega-firms.  We better understand the needs and perspective of small business, because we ARE small business. If you are a small business, let our small business help you. Call us today at 901-372-5003 or email us here.   Or visit the Business & Commercial Litigation page on our website to learn more.

We’re conveniently located near the intersection of Walnut Grove and Germantown Parkway in Memphis. Easy access to our office means you are in and out when you need to visit us, so you can get on with running your business.  Oh, and there’s free and plentiful parking here. No parking garages necessary!

Legal Problem Solving: Does Your Lawyer Merely Work the Problem? Or Solve the Problem?

Legal Problem Solving: Does Your Lawyer Merely Work the Problem? Or Solve the Problem?

legal problem solvingLet’s discuss legal problem solving. Does your lawyer merely work the problem, or solve the problem? There’s a difference, you know.

  • A cookie-cutter response vs. a creative solution
  • Reaction vs. a plan of action
  • “Winning” the lawsuit vs. avoiding the lawsuit
  • Churning legal fees vs. finding a cost-effective solution up front

I saw a blog post once detailing a masterful stroke of legal genius by the lawyers for Jack Daniels, and wanted to share it. It’s a prime example of the type of culture and approach we cultivate at Wiseman Bray PLLC– solving the problem vs. merely working the problem.

Legal Problem Solving at Wiseman Bray PLLC

Our clients don’t just want legal answers.  They want solutions.  So at every stage our goal is to focus on the following question to the client:

“What do you ultimately want to accomplish?”

Sometimes that means we have to act not just as legal advisors, but also legal counselors – asking questions, raising issues the client may not have considered, and then sometimes even gently prodding and steering clients to think beyond their immediate short-term emotions and goals.

In virtually every case, our clients appreciate our focus on long-term solutions.  That might mean, for example, our client accepting a short-term loss in exchange for saving a relationship with a customer and securing new business, renegotiating as opposed to litigating a contract, and realizing that the cost of vindication might sometimes outweigh the perceived benefits. Many clients have even remarked how unusual it is that a lawyer would suggest an option that they weren’t even aware of, and that would generate less in billed fees for the lawyer.

But, then again, that’s how we internally answer the very same question we put to our clients:

“What do WE ultimately want to accomplish?”

We want to uniquely serve the best interests of our clients so that they ultimately come back.  And refer their peers, colleagues, friends, and family.

And they do.  And we’re confident you will, too.

Law FAQ: Negligence – Is the Other Driver At Fault for the Car Wreck? (Part II)

Law FAQ: Negligence – Is the Other Driver At Fault for the Car Wreck? (Part II)

In yesterday’s blog post, I listed the 5 basic elements for a negligence claim: duty, breach, injury, causation, and proximate/legal cause.

Today’s post will focus on the first 2 elements which, for the most part, comprise the most interesting and difficult issues that arise in connection with negligence claims:  duty and breach.

Negligence is commonly referred to as the “reasonable man” standard.  Stated differently, a driver involved in a car wreck would be considered negligent if taking some action that most average people would deem unreasonable under the circumstances.  Negligence can be predicated both on acts of commission (e.g. running a red light), as well as acts of omission (e.g. failing to pay appropriate attention to the road).

Basically, the rules of negligence boil down to requiring people to follow society’s basic “rules of the road” for reasonable conduct.  For the most part, it’s commonsense-type stuff.  The law of negligence is about reasonableness and balance.  It does recognize, for example, that some injuries are simply unforeseeable and/or sometimes unavoidable.

Stated in legal terms, a court will consider the issue of legal duty in terms of what is known as “reasonable foreseeability.”  This means that if your conduct would create a “reasonably foreseeable risk of injury” then you would naturally have an obligation to avoid the conduct, or to take reasonable precautions to protect innocent bystanders from the risk.  The rule is really nothing different than The Golden Rule that churches, mothers and fathers teach their children every day.

For example, will a driver be held liable if the brakes on his truck suddenly and without warning fail, and he winds up in a car accident?  Probably not, because the risk wasn’t necessarily foreseeable.   By comparison, though, if the brakes had been acting up previously, and the driver just ignored it and kept on driving the truck instead of taking it to the shop for repairs, then he probably would be deemed negligent in that situation.  Indeed, there was a known risk and he failed to take reasonable steps to protect others against a foreseeable risk of harm.

In other words, that driver would have breached his duty to those around him, and therefore he should rightfully be expected to make good on the injuries and damages unilaterally imposed on an innocent person.

This same analysis would apply to all sorts of things such as speeding, texting while driving, weaving too quickly in and out of traffic — i.e. things which impose an unreasonable and foreseeable risk of harm.

Note that the law of negligence is a far cry from the daily dose of nonsense you get from TV advertising, and from politicians.  Indeed, it is NOT the type of automatic, jackpot money grab that the ambulance-chasing TV lawyers seem to imply, and that the so-called tort reformers would likewise have you believe as part of selling their grossly exaggerated claim that “the sky is falling with lawsuits.”  To the contrary, the law does not provide for automatic liability whenever an injury occurs.  Likewise, it does NOT impose a duty to eliminate each and every one of life’s many risks.

The law of negligence is simply about the common sense “reasonable man” standard which is very much akin the Golden Rule — “Do unto others as you would have them do unto you.”

Stay tuned for more about the question of how the law determines the winner of a lawsuit when — as is often the case in real life situations — both parties are somewhat negligent.   This is referred to as the issue of comparative fault.  Stay tuned.

Politics in the Workplace: Wiseman Quoted in Memphis Daily News

Let’s talk politics. Or not. Regardless of the outcome, the 2016 Presidential Election is set to go down in history.  You have probably learned about (or are inundated with!) the political positions of many of your friends through social media accounts like Facebook and Twitter.

But what about politics in the workplace?

In 2012, Reporter Andy Meek wrote an insightful article for the Memphis Daily News about the need for employers to carefully monitor the discussion of politics in the workplace. It’s worth pointing out again during this election cycle. Attorney Lang Wiseman was interviewed for the article, which stated in part:

Lang Wiseman, a partner at Wiseman Bray PLLC, said there’s an even bigger worry than that.

“Politics can be a passionate topic that can lead to heated – if not disruptive – incidents and feelings,” he said. “In fact, political discussion can at times even become infused with notions of religion, race and sex that can create actual legal risks for the employers. That’s not to say that every perceived slight or discomfort in the workplace gives rise to a legal cause of action, but just to note that there is a careful balancing act that employers have to stay on top of.”

READ THE ARTICLE: Attorneys Warn Against Workplace Political Talk

politics in the workplace attorney

 

 

 

 

 

WISEMAN BRAY PLLC

8001 Centerview Parkway, Suite 103

Memphis, Tennessee 38018

(901) 372-5003 Office

www.WisemanBray.com

The Attorneys of Wiseman Bray PLLC handle personal injury cases, auto accidents, apartment crime cases, estate planning, asset protection, charitable planning, business litigation, business organization, business counseling, and many other general legal services.  Please visit our website to learn more about our attorneys and the work we do for our clients.

 

ObamaCare Before Supreme Court Starting Today: Brief Guide

ObamaCare Before Supreme Court Starting Today: Brief Guide

My friend Hans Von Spakovsky has a great rundown of the Supreme Court’s schedule as they hear argument over the course of the next three days on the various legal issues implicated by ObamaCare.  Check out the article over at PJ Media.

As for the most pressing substantive issue in the case — the Commerce Clause of the U.S. Constitution — there is a very good summary of the “evolution” of the Court’s interpretation of the Clause over the course of the past century over at The Atlantic.

Legal Tip: Take Photos of the Contents of Your Wallet and Store Them on Your Smartphone

Legal Tip: Take Photos of the Contents of Your Wallet and Store Them on Your Smartphone

Identity theft is rampant.  You hear horror stories over and over again.  To protect yourself, you should avoid supplying personal and financial information online except in connection with verifiable, reputable sites.

But what about “old style” identity theft?  Indeed, sometimes despite your best efforts, there are occasions where your wallet, purse or briefcase is lost or stolen.

One way to protect yourself is to take a photo of the contents of your wallet or and store them in a password protected app on your smartphone — e.g. take a photo of the front and back sides of your credit cards, your license, and your health insurance card.  Indeed, in the unfortunate event your wallet is stolen, you will need to call your bank and credit card companies to cancel your cards, and it would be helpful to have their customer service numbers readily available along with your account information.  Having photos will also enable you simply to remember what cards are actually in your wallet, too.  (Not to mention, having the photos on your smartphone can be handy for those times when you forget your wallet and need your ID or health insurance card, for example.)

CAUTION: Store photos of your cards only if access to your phone is password protected, or if you use an phone app that is password protected. The last thing you want is to have your phone stolen or lost — as if that isn’t bad enough — and to compound that problem by having your credit card info inadvertently available to the thief as well.

Either way, though — whether it involves online or “old style” identity theft — you should timely and carefully monitor your credit card and bank statements for unauthorized or fraudulent transactions.  Under the law, you are NOT responsible for fraudulent transactions if you timely discover and report them.

The Obamacare case to be heard by the Supreme Court in only 2 weeks

The Obamacare case to be heard by the Supreme Court in only 2 weeks

I posted previously about the Obamacare cases that were on a collision course to the Supreme Court.  The most eagerly anticipated question before the Court is the constitutionality of the individual mandate — that is, does the federal government have the power to require someone to purchase something?

Three of the 13 federal appellate courts have now ruled on Obamacare.  The 4th and the 6th Circuits upheld the individual mandate, whereas the 11th Circuit deemed it unconstitutional.  (The 6th Circuit is where I clerked.  It covers Tennessee, Kentucky, Ohio and Michigan).

It’s a fascinating issue with all sorts of wide-ranging legal and historical implications, and it’s now set to finally be heard by the Court on Monday, March 26th.

An article in The New York Times offers a glimpse into the importance of the case — and to the legacy in particular of Chief Justice Roberts — noting that “[t]he six hours the court will devote to arguments is a testament to the case’s importance.  The last time the court heard longer arguments in a politically charged case was in 1966, over the Voting Rights Act, a crowning achievement of the civil rights movement. And the last time the Supreme Court ruled that a major piece of economic legislation was beyond Congressional power to regulate commerce was in 1936, when the court struck down minimum-wage and maximum-hour requirements in the coal industry.”

The case will have important political implications as well.  Indeed, considering the length of time it generally takes for the court to issue their written decisions following argument, the case opinion will likely be handed down just in time for the final stretch run of the upcoming presidential race.

Stay tuned for a short summary and primer on the precise legal issues involved.

In the meantime the lawyer for the parties challenging Obamacare.  He is a former law school classmate of President Obama, and a former Justice Department official in charge of appearing before the Supreme Court to defend similar laws passed by Congress.

Outrageous & Frivolous Lawsuit Verdicts – Fact or Urban Myth?

Outrageous & Frivolous Lawsuit Verdicts – Fact or Urban Myth?

Everybody has probably seen them at one time or another — The Stella Awards — an annual list of the most outrageous lawsuits. The Awards are named after Stella Liebeck, the lady who sued and won a multi-million dollar verdict against McDonald’s for spilling hot coffee on herself.

Some of the more noteworthy Stella Award winners include:

  • The woman who won $1.7 million from Winnebago after putting her RV on cruise control at 70 mph, and then getting up to go make herself a sandwich in the back. She claimed that Winnebago should have warned her that she couldn’t leave the driver’s seat after putting the cruise control on.
  • A 19 year old in Los Angeles won $74,000 in medical expenses when his neighbor ran over his hand with a Honda Accord while the teenager was trying to steal a hubcap.
  • A woman who was awarded $80,000 after breaking her ankle tripping over a toddler who was running inside a furniture store, even though the toddler was her own son.

These examples are humorous, and indeed, the list goes on and on with other silly examples. The only problem is that ALL OF THESE LAWSUITS ARE ENTIRELY FALSE!

Even the underlying McDonald’s hot coffee case itself has reached unwarranted levels of urban myth-ism.  If you want the REAL story behind the case, click here for more info on why the final verdict in that case was actually quite reasonable under the circumstances.

Why do I bring up these awards? Because you wouldn’t believe the number of people I talk to who bring up these “cases” as examples of what’s wrong with our legal system.

The problem is that these wild misconceptions foster the type of false notion perpetuated by insurance companies and politicians who claim that there’s no rhyme or reason to our judicial system — which, of course, is the sort of “problem” that they just happen to have a government solution for.  How convenient.

Well, take it from a lawyer who’s in the trenches everyday: despite what you may hear — the concept of jackpot justice is exceedingly rare.  Are there occasionally exceptions and outlier verdicts? Absolutely. Just like there are times when clearly negligent defendants get away with maiming people.  But both situations are exceptions and hardly the norm.

Is the system expensive and in need of tweaking here and there?  Sure.  Just like everything else in life, it can be improved.

But good policy decisions aren’t made by throwing out the baby with the bathwater — and cutting off people’s legal rights in the meantime — based on urban myths perpetuated as fact.  That makes absolutely no sense at all.

So, don’t believe the hype.  Do your own homework before you fall hook, line and sinker for a story that sounds too crazy to be true.  Because most times, it isn’t.

Scalded Privates: The Short (But Real) Story Behind the Supposedly "Frivolous" McDonald’s Hot Coffee Lawsuit

Scalded Privates: The Short (But Real) Story Behind the Supposedly “Frivolous” McDonald’s Hot Coffee Lawsuit

“Can you believe it?  Some lady got millions for burning herself with her own hot coffee from McDonald’s!” 

You’ve no doubt heard all the talk before.  The case has become the poster child for so-called frivolous lawsuits and politicians screaming for silly tort reform.  The verdict supposedly represents everything that’s wrong with America and the legal system.

Of course, there’s only one problem: the legend has outgrown the truth.

As Paul Harvey used to say: “And now, here’s the rest of the story.”

  • The plaintiff was Ms. Stella Liebeck.  She was a grandmother who attempted multiple times to settle her case with McDonald’s.  They refused.
  • She wasn’t driving down the street when she got burned.  She was a passenger in a stopped vehicle.  They had ordered coffee at the drive-thru window.  After receiving the order, her grandson pulled his car forward and stopped momentarily so that she could add cream and sugar. The coffee spilled when she was attempting to remove that hard plastic lid from the little cheap styrofoam cup.
  • The coffee wasn’t just hot — it was scalding.  Indeed, it was discovered during the case that McDonald’s actively enforced a requirement that its restaurants keep coffee at 180-190 degrees Fahrenheit — only a few degrees away from the boiling point! By comparison, home coffee makers generally maintain coffee at 135-140 degrees.
  • Notwithstanding, a McDonald’s’ quality assurance manager testified that the company enforced the 185 degree requirement even thought they knew a burn hazard existed with any food substance greater than 140 degrees, and that it was not fit for human consumption because it would burn the mouth and throat, and cause full thickness burn injuries to the skin in only 2-7 seconds.
  • In fact, McDonald’s produced documents showing that there were more than 700 other claims by other people similarly burned by its coffee over a 10- year-period. McDonald’s quite clearly knew the risk involved and simply chose to ignore it.
  • Ms. Liebeck’s injuries were legitimate.  In fact, they were horrendous.  Her vascular surgeon determined that she suffered full thickness burns (3rd degree burns) over 6 percent of her body — including her inner thighs, perineum, buttocks, and genital and groin areas. (See the photo below if you have a strong enough stomach.)
  • She was hospitalized for 8 days, during which time she underwent skin grafts in her genital area.
  • Despite these grotesque injuries, Ms. Liebeck merely asked McDonald’s to pay for the cost of her medical treatment, and offered to settle the case for only $20,000. They refused.
  • At the end of the day, this wasn’t a runaway jury.  Indeed, Ms. Liebeck was only awarded $200,000 in compensatory damages. And even this amount was reduced to $160,000 because the jury found Ms. Liebeck 20 percent at fault for the spill, and thus they made a corresponding 20% reduction to the damages.
  • Based on the evidence of past claims and McDonald’s conscious decision to ignore a substantial risk, the jury also awarded $2.7 million in punitive damages.  The idea behind punitive damages is to make sure the defendant is properly motivated to change its conduct by taking into account the fact that there were other instances of egregious damages for which they might have escaped appropriate responsibility. And even then, the $2.7 million punitive verdict only equaled about 2 days of coffee sales at McDonald’s.  2 whole days.
  • And the court reduced even that amount to only $480,000.

So take a look at the photo and ask yourself whether you’d willingly trade those injuries and skin grafts to genitalia for a mere $600,000.

No way.  Not me.  No thanks.

Doesn’t sound so “frivolous” anymore, does it?