I have a couple unpaid overtime cases in the complaint stage. It is my understanding that the federal courts are feeling seriously underfunded. The pending government shutdown is threatening to freeze pay and lead to furloughs. This potential slowdown in my wage and hour forum of choice has me concerned. While the Fair Labor Standards Act provides concurrent jurisdiction to state courts, neither judges, nor counsel who are commonly called to appear in county common pleas courts seem well versed in the procedures and risks presented by FLSA litigation.
The state courts do allow things to move along more quickly in the early stages of the case, particularly with discovery. Federal rules of procedure prohibit formal discovery prior to the discovery plan conference which may not be for ninety days or more after the complaint is served. Under Ohio rules, interrogatories and other paper discovery can be served with the complaint.
I think that under the circumstances of threatened funding for federal courts, a diversion to state court may be the way to go. It requires more time spent educating the court and counsel not used to FLSA litigation, but the cases will not be held hostage to congressional foolishness.
Ironically, my state court is smack in the middle of House Speaker John Boehner's Ohio district. If he were able to do his job, then I could rely on the federal courts. But he can't. So neither can I.
Thursday, September 26, 2013
Wednesday, September 11, 2013
Personal Injury
People get in car accidents all the time. They get hurt, and then they sue the driver of the other car. On a daily basis, thousands of lawyers are looking for the opportunity to represent someone who was injured. They're known as trial lawyers, personal injury lawyers, accident lawyers, wrongful death lawyers, Plaintiff's lawyers, even ambulance chasers and shysters. All are titles attached to those who work, usually on no more than the belief that they will prevail, to recover medical costs, lost wages and an amount of money to compensate an injured client for their pain and suffering.
I do not work in the personal injury area of law. Almost never. However, in the course of representing people fighting about their pay and employment rights, an occasional car accident affects my employee client and I am asked to help.
In a car accident, the driver doing the injuring is usually protected by an insurance company. Insurance companies, contrary to their television commercials, are not good hands, problem solving, double check discounting, Aussie geckos. They are businesses with ruthless, bottom line driven employees whose job is literally to keep an injured party's recovery to an absolute minimum. Insurers seem to view every injured person as a fraud, cheat and liar. They are out there, but the generalization has made the process painful.
Remember, insurance companies take money in from their customers and then invest that money, called a premium. The less they pay out in losses, the more the insurance company and its employees get in profits, bonuses and perks. I don't begrudge a business its profits, but you gotta understand insurance is designed to deny the existence or size of a loss.
My client was recently reminded of that business purpose. She was injured in a car accident. She had no obvious injuries, but had pain for years. She still does. Sadly, her evidence and the location of the court and its stingy jury pool, along with the costs of medical testimony made the likelihood of her prevailing in a court case very small. The neighborly insurance company that was there with a minimal amount of money and a big smirk knew the cost of litigation would outweigh the likely verdict. So rather than pay a fair amount of compensation for the loss, the company bet the farm that my client would not risk her farm. The insurer was right.
You can't see the pain of a toothache on an X-ray. Nor can medicine say with certainty whether any other pain is present. Doctors can't test grief and depression with an MRI. Sometimes the pain and suffering and despair from an injury simply cannot be seen by modern medicine. Is it any less real? Is it any less painful for its camouflage? No. But to insurers, their captive and well paid doctors, and to many jury pools, it might as well be a big lie.
It may be a fight worth having. The battle to show that pain is real even without shattered bones or lost blood. But not by me. I am back to my arena now. Saddened, chastened and glad to not be a PI lawyer.
I do not work in the personal injury area of law. Almost never. However, in the course of representing people fighting about their pay and employment rights, an occasional car accident affects my employee client and I am asked to help.
In a car accident, the driver doing the injuring is usually protected by an insurance company. Insurance companies, contrary to their television commercials, are not good hands, problem solving, double check discounting, Aussie geckos. They are businesses with ruthless, bottom line driven employees whose job is literally to keep an injured party's recovery to an absolute minimum. Insurers seem to view every injured person as a fraud, cheat and liar. They are out there, but the generalization has made the process painful.
Remember, insurance companies take money in from their customers and then invest that money, called a premium. The less they pay out in losses, the more the insurance company and its employees get in profits, bonuses and perks. I don't begrudge a business its profits, but you gotta understand insurance is designed to deny the existence or size of a loss.
My client was recently reminded of that business purpose. She was injured in a car accident. She had no obvious injuries, but had pain for years. She still does. Sadly, her evidence and the location of the court and its stingy jury pool, along with the costs of medical testimony made the likelihood of her prevailing in a court case very small. The neighborly insurance company that was there with a minimal amount of money and a big smirk knew the cost of litigation would outweigh the likely verdict. So rather than pay a fair amount of compensation for the loss, the company bet the farm that my client would not risk her farm. The insurer was right.
You can't see the pain of a toothache on an X-ray. Nor can medicine say with certainty whether any other pain is present. Doctors can't test grief and depression with an MRI. Sometimes the pain and suffering and despair from an injury simply cannot be seen by modern medicine. Is it any less real? Is it any less painful for its camouflage? No. But to insurers, their captive and well paid doctors, and to many jury pools, it might as well be a big lie.
It may be a fight worth having. The battle to show that pain is real even without shattered bones or lost blood. But not by me. I am back to my arena now. Saddened, chastened and glad to not be a PI lawyer.
Sunday, September 8, 2013
NSA intercepts everything - no privilege is safe
Well the National (in)Security Agency has mucked it up. With this revelation NSA cracks all it is clear that the Internet's most familiar service, i.e., email, is NOT a method of secure communication with clients or other counsel.
Back to US Mail and Fed Ex. The Internet revolution was just perverted by our friends in Washington. I appreciate a fair and well enforced scheme of laws, rules and regulations. Most lawyers count on that stew to make a living. However, I cannot accept, support or appreciate an unbridled abrogation of my legitimate privacy expectations.
This delusional and self protecting government madness leaves many frustrated and in despair. I am at a loss myself. The helplessness is unwelcome and unfamiliar. I am unsure how to fix this pervasive problem, but I will be looking for a solution. I hope everyone else is too.
Back to US Mail and Fed Ex. The Internet revolution was just perverted by our friends in Washington. I appreciate a fair and well enforced scheme of laws, rules and regulations. Most lawyers count on that stew to make a living. However, I cannot accept, support or appreciate an unbridled abrogation of my legitimate privacy expectations.
This delusional and self protecting government madness leaves many frustrated and in despair. I am at a loss myself. The helplessness is unwelcome and unfamiliar. I am unsure how to fix this pervasive problem, but I will be looking for a solution. I hope everyone else is too.
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