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  • 25 Jul 2019 10:43 AM | Jennifer Edwards (Administrator)

    By: Austin Starkey & Jason Ligon

    As a litigation attorney, you could eventually need a financial expert in a case. But if you rarely or never engage one, you might be unsure of where to start that search. Do you consult your peers? Do you ask the professional who files your taxes? Do you just start Googling terms like “Certified Public Accountant”, “financial expert”, and “litigation support”?

    As you research your options, you likely have your client’s budget in mind. You want to keep the cost low, but you have concerns about whether your potential expert can survive a Daubert challenge. Ultimately, you want to settle the case in a manner that satisfies your client.

    If your tax accountant says they can probably handle the work, beware. The Certified Public Accountant (CPA) license spans a wide spectrum of subject matter; thus, a CPA in the context of audit or tax is vastly different from a CPA in the context of litigation support services. We encounter accountants moonlighting as financial experts and operating outside their depth all too often, and these would-be experts are vulnerable to criticisms of their CVs, if not a formal Daubert challenge. A typical accountant is likely ignorant not only of the specific procedures involved to provide litigation support services, but also the time necessary to complete them. In other words, they don’t know what they don’t know.

    Qualified financial experts have the SKEET—Skills, Knowledge, Education, Experience, and Training— that most CPAs lack. These attributes are what make a “good” financial expert and help you win your case. The culmination of these five elements are necessary to make a well-rounded and effective expert. Experts must continually seek training and education to keep with changes in the business and accounting environment, much like attorneys must do as new laws and regulations are passed.

    Additional certifications and advanced degrees are not always applicable to the careers of our accounting peers in audit and tax, but they are extremely important to obtain knowledge, education, and training necessary for being a financial expert. Such certifications require completing coursework, passing exams, and earning certain experience on top of the requirements to obtain a CPA license. Maintaining licenses and certifications requires annual continuing education on matters specific to providing litigation support services and opining as to financial damages. In addition to credentials, advanced college degrees add significant value to experts and strengthens your expert’s position during critiques of their CV or during a Daubert challenge. Financial experts have to consider all aspects of a business from operations to sales, accounting, and financial reporting, which cannot be obtained just by obtaining a CPA license.

    An accountant or economist that is not regularly involved in litigation matters is frequently unaware of the methodologies associated with this subject matter. Could they explain before-and-after, market share, yardstick, or forecasting approaches for calculating lost profits? How much experience do they have examining legal documents and forming conclusions of damages based on the terms of a specific contract? To a financial expert, these are everyday concepts. Subsequently, a qualified financial expert can convey all this information in front of a judge or jury when it’s show time. Testifying is not at all common among CPAs outside of this specialization; whereas, financial experts regularly sit on the hot seat during depositions and trial testimony. In many circumstances, financial experts have undergone training specifically to prepare for such situations.

    Consulting a well-qualified expert early in the litigation process can lead to significant efficiencies in quantifying damages. For example, an expert can assist in the request for documents, evaluate discovery documents, and provide insight on potential issues. The sophisticated expert likely has a team under their supervision contributing a large portion of the assistance and analysis required – they can offer that assistance and analysis at a lower hourly rate than that of the testifying expert. Experienced experts will eliminate many of the “surprises” and uncertainties from the damage quantification process.

    When you find yourself in need of a qualified financial expert or need assistance interpreting the financial aspects of a case, Elliott Davis and our team of litigation support professionals are ready to help.  Contact the team members:

    Jason Ligon

    Austin Starkey

    Jon Strickland

  • 23 Jul 2019 10:34 AM | Jennifer Edwards (Administrator)

    By Jay C. Salsman and Christina J. Banfield,
    Harris, Creech, Ward & Blackerby, P.A.

    “[I]t is but just that the public be required to care for the prisoner, who cannot by reason of the deprivation of his liberty, care for himself.”

    Local jails and state prisons in North Carolina have an obligation to provide medical care to inmates and prisoners, who inherently rely on jail authorities to obtain treatment for their medical needs as they are not free to seek medical care on their own.  When inmates believe that they have been denied or given inadequate medical care by health care providers at these institutions, they have the right to seek monetary relief for such under 42 U.S.C. § 1983. 

    Civil rights cases brought by state prisoners and county inmates are governed by 42 U.S.C. § 1983, and allow prisoners to seek relief in federal court when they believe their civil rights have been violated.   42 U.S.C. § 1983 states that a person acting under color of state law, such as a state prison employee or county correctional employee, may be liable for the violation of a right protected by the United States Constitution or created by a federal statute.

    An individual, private health care provider working at a state prison or county detention center can be deemed to be acting under color of state law.  However, a private health care corporation cannot be held vicariously liable under § 1983 for any acts by an individual health care provider.  A private health care corporation can only be held liable under § 1983 for a claim demonstrating that an official policy or custom of the corporation caused an alleged violation of a right.

    Common § 1983 claims against health care providers are (1) claims that prison or jail conditions cause harm to the health or safety of the inmate, in violation of the Eighth Amendment protection against cruel and unusual punishment, and (2) claims that the providers are deliberately indifferent to an inmate’s serious illness or injury, in violation of the Eighth Amendment protection against cruel and unusual punishment.  “In order to make a prima facie case that prison conditions violate the Eighth Amendment, a prisoner must show both ‘(1) a serious deprivation of a basic human need; and (2) deliberate indifference to prison conditions on the part of prison officials.’”  In order to establish that a health care provider’s actions constitute deliberate indifference to a serious medical need in violation of the Eighth Amendment, the prisoner must show that the medical treatment is so grossly incompetent, inadequate, or excessive as to shock the conscience or to be intolerable to fundamental fairness.”

    Deliberate indifference further requires that a health care provider “actually know of and disregard an objectively serious condition, medical need, or risk of harm.”  A health care provider’s failure to alleviate a significant risk that he should have perceived, but did not, cannot establish deliberate indifference.  Additionally, mere negligence or medical malpractice is not sufficient to constitute deliberate indifference to a serious medical condition.  Further, a mere disagreement between an inmate and a health care provider regarding the appropriate form of treatment does not state a constitutional claim.

    Qualified immunity may apply to shield a health care provider from liability for civil monetary damages under a § 1983 suit if the provider’s conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.  The crucial question in a qualified immunity inquiry is whether the provider’s conduct would strike an objective observer as falling within the range of reasonable judgment.  A health care provider is entitled to qualified immunity unless a reasonable person in her position would have known, based on the information possessed by her at the time, that her actions would constitute deliberate indifference to a serious medical need.

    Pursuant to 28 U.S.C. § 1367, an inmate may also allege a related supplemental state law claim for medical malpractice against a health care provider.  Where an inmate’s federal complaint also alleges a state law claim for medical malpractice against a health care provider working at a jail, Rule 9(j) of the North Carolina Rules of Civil Procedure applies, and the inmate must allege that all medical care and all medical records have been reviewed by a person reasonably expected to qualify as an expert and willing to testify that the medical care did not meet the standard of care.

    Inmates may not immediately file a § 1938 action after any alleged deliberate indifference to a serious medical need; instead, an inmate must exhaust all administrative remedies available to him, thereby completing the entire administrative remedy process for any such claim.  Once administrative remedies have been exhausted, an inmate can file his § 1983 suit in federal court.  Because § 1983 does not have its own statute of limitations, it is considered “deficient” within the meaning of 42 U.S.C. § 1988.  Therefore, the forum state’s personal injury statute of limitations governs the time in which the inmate may file his suit.  In North Carolina, the statute of limitations for personal injury is three years.

    After the inmate files his suit, a judge will conduct a frivolity review of the plaintiff’s complaint.  If the court determines that the complaint is (1) frivolous, malicious, or fails to state a claim upon which relief may be granted, or (2) seeks monetary relief from a defendant who is immune from such relief, then the court can dismiss the complaint at a very early stage, prior to issuing summons to the named defendants.  If the suit moves forward, an inmate may file a motion for appointment of counsel with the court, as inmates have no constitutional right to counsel in a civil action.

                In defending against a complaint brought by an inmate, it is important to note that deliberate indifference is an extremely high standard that the inmate has the burden of proving.  In supporting a motion for summary judgment on such claims, medical records of sick calls, examinations, diagnoses, and medications may rebut an inmate’s allegations of deliberate indifference.  Further, the motion may, and should, be supported by a detailed affidavit from the defendant health care provider, outlining and detailing all medical care given.  In addition, expert witnesses who are familiar with the standard of care in county jails or in state prisons may be helpful to outline the standard of care that would have applied to the medical care given to the inmate. 

                42 U.S.C. § 1983 is an important vehicle that allows inmates to seek relief against private health care providers when they have actually been deprived of a right to adequate medical care during their incarceration.  However, there is and will continue to be ample statutory and case law support to assist health care providers with successfully defending against civil rights claims that are baseless or do not allege facts showing deliberate indifference to a serious medical need. 

    Spicer v. Williamson, 191 N.C. 487, 490, 132 S.E. 291, 293 (1926).

    Estelle v. Gamble, 429 U.S. 97, 103 (1976).

    Monell v. Dep’t of Social Servs., 436 U.S.C. 658, 690 (1978).

    42 U.S.C. § 1983.

    42 U.S.C. § 1983.

    West v. Atkins, 487 U.S. 42, 50-51 (1988).

    Rodriguez v. Smithfield Packing Co., 338 F.3d 348, 355 (4th Cir. 2003); Austin v. Paramount Parks, Inc., 195 F.3d 715, 727-28 (4th Cir. 1999).

    Monell v. Dep’t. of Social Servs., 436 U.S. 658, 690 (1978); see also City of Canton v. Harris, 489 U.S. 378, 385 (1989).

    Strickler v. Waters, 989 F.2d 1375, 1379 (4th Cir. 1993).

    Miltier v. Beorn, 896 F.2d 848, 851 (4th Cir. 1990), overruled in part on other grounds by Farmer v. Brennan, 511 U.S. 825, 837 (1994).

    Short v. Smoot, 436 F.3d 422, 427 (4th Cir. 2006).

    Farmer v. Brennan, 511 U.S. 825, 838 (1994).

    Estelle v. Gamble, 429 U.S. 97, 106 (1976).

    Id. at 105-06.

    Wiley v. Doory, 14 F.3d 993, 995 (4th Cir. 1994).

    Gooden v. Howard County, Maryland, 954 F.2d 960, 965 (4th Cir. 1992).

    Anderson v. Creighton, 483 U.S. 635, 639-40 (1987).

    Estate of Williams-Moore v. Alliance One Receivables Mgmt., 355 F. Supp. 2d 636, 649 (M.D.N.C. 2004); Moore v. Pitt Cty. Mem’l Hosp., 139 F. Supp. 2d 712, 713 (E.D.N.C. 2001).

    42 U.S.C. § 1997e.

    Wilson v. Garcia, 471 U.S. 261, 280 (1985).

    N.C. Gen. Stat. §1-52(16).

    28 U.S.C. § 1915A.

    28 U.S.C. § 1915A.

    See Lassiter v. Dept. of Social Servs., 452 U.S. 18, 26-27 (1981).

    See Grayson v. Peed, 195 F.3d 692, 695 (4th Cir. 1999).

    Banuelos v. McFarland, 41 F.3d 232, 235 (5th Cir. 1995).

  • 28 May 2019 1:41 PM | Jennifer Edwards (Administrator)

    By Colleen Byers,
    Bell Davis Pitt

    Abraham Lincoln, a wise lawyer and visionary leader once said, “With malice toward none, with charity for all, with firmness in the right, as God gives us to see the right, let us strive on to finish the work we are in, to bind up the nation’s wounds.”  Abraham Lincoln was talking about the abolition of slavery and the healing of a young country quite literally torn apart by Civil War.  Yet there are pearls of wisdom in President Lincoln’s words that are equally applicable to our modern legal practices.  After all, as lawyers and mediators, we are frequently called upon to bind up the parties’ wounds.

    Collaborative law is a form of alternative dispute resolution that offers parties an opportunity to bind up their wounds with dignity and respect.  Conceived in 1990 by Minnesota family lawyer Stuart Webb, collaborative law is a non-adversarial, attorney-led, structured negotiation process that focuses on the needs and interests of the parties as they work together to create sustainable solutions.

    With an emphasis on the open and honest exchange of relevant information, trained lawyers facilitate joint brainstorming sessions to support and empower the parties to craft a workable and lasting solution for themselves, rather than hand their fate over to a judge or jury after a long and costly battle through the court system.  Collaborative law offers a faster, more cost effective, and less traumatic path toward conflict resolution that gives the parties a chance to preserve their relationships with each other.  Unlike the modern mediation style where the parties remain in separate rooms, entrenched in their respective positions and worried that if the other side gets a bigger piece of the proverbial pie, then they will necessarily get less, in the collaborative process, all of the parties are seated at the same table, with their advocates by their sides, collectively brainstorming ways to expand the pie rather than just divide it.  Everyone, including the attorneys, is committed to finding a business or personal resolution that everyone can embrace, not just reluctantly suffer through.

    The Business Case for Collaborative Law

    Collaborative law is particularly beneficial in matters in which there is an ongoing relationship or future associations. Think of a family business that’s “divorcing,” a construction project in which there’s the opportunity for the parties to have future, profitable ventures, or an employment matter where the parties have a continuing need to work together.

    Increasingly, clients are unwilling or unable to pay large legal fees for extended periods of time or tolerate protracted litigation.  Particularly those clients in the technology and innovation space do not have the time to wait 18-24 months for a dispute to work its way through the court system.  By then, the technology has become archaic.  Rather than pay their lawyers to fight over provisions of a required case management order and other procedural formalities, the parties in a collaborative case benefit from knowing that every minute their lawyer spends on their case, he is working toward facilitating a business resolution. 

    Collaborative Law Regulations Pending in NC

    After hours of drafting and consulting with practitioners in a myriad of practice areas, the Uniform Collaborative Law Act (“UCLA”) was submitted to the North Carolina legislature.  This winter, it passed the House and is currently before the Senate Rules Committee for consideration.  The UCLA seeks to codify the regulations for the practice of collaborative law in non-family civil matters.  Of particular importance to attorneys is the restriction on collaborative attorneys and their respective firms from representing their clients in subsequent litigation if the dispute is not resolved in the collaborative process.  This disqualification rule is intended to encourage parties and their lawyers to engage diligently in negotiations to avoid having to hire new counsel if they do not reach resolution in the collaborative law process.   

    Collaborative Law Resources

    Led by John Sarratt, the North Carolina Civil Collaborative Law Association (“NCCCLA”) seeks to educate attorneys as well as the general public about the many advantages of utilizing collaborative law to resolve civil disputes in the commercial arena.  The non-profit organization defines uniform standards and best practices for civil collaborative professionals, offers training and networking opportunities, and provides resources for practitioners and parties.   

    If you want to learn more about collaborative law and how to incorporate it into your practice, please join me and other leaders of NCCCLA at an upcoming Collaborative Practice Training CLE in Asheville on June 19th and 20th.  For details and registration, click here:

    The collaborative process is not the right fit for every dispute, nor for every client, but it is a viable form of alternative dispute resolution that we, as counselors at law, should educate ourselves and our clients about.

    About the Author

    Colleen L. Byers is a lawyer and certified mediator at Bell, Davis & Pitt.  Her legal practice includes business and commercial litigation, legal malpractice defense, trust, estate and guardianship disputes, will caveats, and fiduciary litigation.  Colleen is trained in the Civil Collaborative Law process and is certified by the North Carolina Dispute Resolution Commission to mediate Superior Court cases as well as those matters pending before the Clerk of Court.  When she is not spending time with her husband and their daughters, Colleen enjoys practicing and teaching yoga.

  • 28 May 2019 1:33 PM | Jennifer Edwards (Administrator)

    By Alesha Brown and Michael Cohen
    Cranfill Sumner & Hartzog, LLP

    Since 2004, the Department of Labor (“DOL”) has required that employees otherwise qualified under the executive, administrative, or professional (“EAP” or “white collar”) exemptions be paid overtime if they earn less than $455 per week, equating to annual salaries below $23,660, regardless of their duties.  In May 2016, the Obama administration proposed to increase the annual salary threshold to $47,476, or $913 per week.  The Obama administration’s rule also proposed that the Highly Compensated Employee (“HCE”) exemption compensation level increase from $100,000 to $147,414, along with automatic updates to the salary levels every three years.

    The Obama administration’s salary threshold rule was scheduled to take effect on December 1, 2016.  However, on November 22, 2016, just over one week before the rule’s implementation, a federal judge in the U.S. District Court for the Eastern District of Texas issued a nationwide preliminary injunction, thereby preserving the status quo while the court reviewed the DOL’s authority to make the rule.  The court held that the salary threshold increase at issue “create[d] essentially a de facto salary-only test,” and “ignore[d] Congress’s intent by raising the minimum salary level such that it supplants the duties test.”  The DOL appealed the court’s ruling to the Fifth Circuit on December 1, 2016.

    Following President Trump’s inauguration in January 2017, the DOL largely went silent regarding its position on the appeal and the rule, though it expressed its intention to reevaluate the salary threshold.  On August 31, 2017, during the appeal of the preliminary injunction, the Eastern District of Texas granted summary judgment against the DOL, officially invalidating the Obama administration rule.  The court therein held that the rule “would exclude so many employees who perform exempt duties,” rendering the rule inconsistent with “Congress’ unambiguous intent.”  In essence, while the court did not invalidate the DOL’s ability to adjust the salary threshold, it held that more than doubling the threshold effectively eliminated the duties test, going beyond the DOL’s role of merely setting a floor to screen out employees that are very likely non-exempt.

    On March 7, 2019, after seeking public comment, the DOL issued a Notice of Proposed Rulemaking, which reflected its newly proposed rule.  The proposed rule would increase the minimum salary threshold for the “white collar” exemptions from $455 per week ($23,660 per year) to $679 per week ($35,308 per year).  Any employees paid less than the newly proposed salary threshold would be deemed non-exempt and rendered eligible for overtime premiums, regardless of their duties or basis of pay.  The proposed rule does not include automatic adjustments, as the Obama administration rule did, but the DOL has indicated an intent to propose an update every four years via notice and comment rulemaking.  The proposed rule is based on the salary level for the 20th percentile of full-time salaried workers in the lowest census region and in the retail industry nationwide.  The DOL estimates that, if implemented, its rule will render 1.1 million workers eligible for overtime premiums.

    In addition to updating the “white collar” salary threshold, the proposed rule also increases the HCE exemption under the Fair Labor Standards Act (“FLSA”) from $100,000 per year to $147,414 per year.  Accordingly, to be considered an exempt HCE under the proposed rule, an employee must be paid on a salary or fee basis, must customarily and regularly perform at least one of the exempt duties of an executive, professional, or administrative employee, and must earn at least $147,414 per year.  The proposed rule also allows employers to use “certain nondiscretionary bonuses and incentive payments,” including commissions, to account for up to 10% of the new $679 per week salary threshold.  However, the 10% compensation must be paid annually, rather than quarterly.  The 10% provision is consistent with the rule proposed by the Obama administration. 

    The proposed rule will now undergo a period of notice and comment under the procedures of the Administrative Procedure Act, followed by additional evaluation. The DOL estimates that the final rule will take effect January 2020.  The DOL’s January 2020 goal is quite ambitious, particularly when considering potential litigation and a presidential election looming.  While the process is still underway and the final rule has yet to be rolled out, we anticipate that the final rule will be identical or substantially identical to the proposed rule. 

    If you advise employers that employ workers earning a salary of less than $35,308 per year, now might be the right time to prepare for the new rule’s implementation.  If workers earning below the new threshold amount are already classified as non-exempt and entitled to overtime premiums, this rule will not affect their pay.  Likewise, the rule will not affect the pay of workers who do not work overtime hours, i.e. hours in excess of 40 per week, regardless of their exempt status.  If, however, your clients employ workers earning a salary below $35,308 (or $147,414 for HCEs), and such workers are currently classified as exempt, you should advise your clients to either reclassify the workers as non-exempt and pay them overtime, or raise the workers’ salaries to or above the threshold amount to maintain their exempt status.  Your clients may also want to consider limiting hours and spreading work to other employees to help avoid paying overtime premiums, which was one of the principal purposes for the FLSA’s enactment.  To the extent your clients reclassify certain employees due to the new rule, you should ensure that your clients are maintaining adequate records under the FLSA, as is required for non-exempt employees.  As always, you should also take this opportunity to examine which employees your clients classify as exempt, and whether such employees satisfy the requisite duties for each applicable exemption. 

    Misclassification class and collective action and individual suits remain on the rise, and with the passage of this rule, which will likely entitle over one million more workers to overtime premiums, you should expect that trend to continue.  Early and comprehensive preparation will help ensure that your clients avoid the significant costs (both economic and non-economic) that accompany these new changes.

  • 25 Apr 2019 11:03 AM | Jennifer Edwards (Administrator)

    A safety expert can provide a lot more than just compliance regulation information. A safety professional can help lawyers paint the “big picture” to a jury by providing insights into the safety culture surrounding an incident or the development of a product or machine. Does the surrounding culture suggest a compliant environment / employer, or does it lead one to believe that safety was not a top priority? Reverse of that would see a strong culture where there is proper signage, floor markings, robust machine guarding, and accountable employees. From a manufacturer’s perspective, the warnings, safety devices, and features of the design itself can provide evidence of consideration of safety concerns, with or without a documented risk assessment.  Then you can make the case whether a manufacturer was doing its part and acting as a good corporate citizen.

    Thanks to Senior Staff Consultant, Rachel A. Eigen, CSP, AEP, MISE at for this great tip!

  • 31 Jan 2019 11:52 AM | Jennifer Edwards (Administrator)

    By Nick Ellis
    Poyner Spruill

    Under the Gun, a gun violence documentary created by Katie Couric and others d/b/a Epix Entertainment, LLC, not only gave viewers a look at gun violence in America, it also spawned a lawsuit providing both the media and interview subjects nuts and bolts information on defamation in the legal system. The United States 4th Circuit Court of Appeals on December 13, 2018 affirmed the dismissal of a defamation claim against Couric and her colleagues at Epix after analyzing  interview and film editing tactics to determine whether the subjects of the interview had been defamed.[1]

     In 2016, Couric and filmmaker Stephanie Soechtig released a documentary titled Under the Gun. The film addressed gun violence in America and more particularly, issues relating to regulatory steps that could be taken to effect gun control. The film’s perspective favored regulation of gun ownership.

     One of the issues the film addressed was the application of universal background checks to gun ownership. In efforts to present both sides of this issue, the filmmakers contacted the Virginia Citizens Defense League (“VCDL”), a non-profit gun-rights organization, and interviewed several of its members. VCDL was founded in 1994 and according to its website, is a “grass roots organization dedicated to advancing the fundamental human right of all Virginians to keep and bear arms as guaranteed by the Second Amendment to the United States Constitution…”[2] VCDL often tracks similar political position as the NRA. Couric interviewed nine members of VCDL including Daniel Hawes, an attorney and Patricia Webb a gun-store owner.

     The film includes a portion of Couric’s interview with the VCDL members and the segment lasts approximately three minutes.  Couric asks the members several questions regarding gun policies and there are no legally problematic issues created by the main portion of the interview. However, Couric and her team included a 12-second clip at the close of the 3-minute VCDL interview that was edited in such a way as to inaccurately project the members’ responses.

     The final question Couric posed was “If there are no background checks for gun purchasers, how do you prevent felons or terrorists from purchasing a gun?” Approximately nine seconds of silence follows the question, which show the VCDL members sitting in silence and shifting uncomfortably in their seats, while averting their eyes from the camera. Couric is then heard stating “The background check is considered the first line of defense, and 90% of Americans agree it’s a good thing.” There is no other reference to the VCDL or its members in the 105-minute film.

     The problem with this 12-second clip is that it did not transpire as depicted. In actuality, when Couric asked the question about background checks for gun ownership, the VCDL members responded for approximately six minutes. Hawes, the attorney, suggested the government cannot, through a prior restraint that violates the United States Constitution, try to prevent crime. Webb, the gun-store owner, responded that background checks were unlikely to prevent motivated criminals from obtaining guns or committing crimes.[3] These two responses took up approximately three minutes and then there was an additional three minutes of related discussion between Couric and the panel. But, Couric’s team did not show any of these responses. Instead, they spliced in footage taken prior to the interview in which she asked the interviewees to sit silently while technicians calibrated the recording equipment.[4] 

     After the film was released, the VCDL released an unedited audio of the interview, which caused public backlash. Couric then issued a statement taking responsibility for the misrepresented exchange. She acknowledged the insertion of the extended pause made the participants appear to be speechless. Her statement further acknowledged the VCDL members had a right to have their answers be shared, so she posted their responses in full on the film’s website.[5] Couric acknowledged the eight seconds did not accurately represent the members’ response and that this was misleading. To a lay person, this may appear to be exactly what defamation looks like. Legally, it has turned out to be another story.

     The 4th Circuit Court of Appeals stated a defamation claim under Virginia law (the site of the interview) required a plaintiff to prove the defendant (1) published, (2) an actionable statement, (3) with a requisite intent. The court found Couric and Epix had published the film with the requisite intent, but that it had to grapple with whether this was an “actionable” statement. Under Virginia law, to be actionable, the statement must be “both false and defamatory.”[6] There does not appear to be any question that the “clip of silence” was false, but was it “defamatory”. This turned out to be the court’s focus.

     The court stated that defamatory words are those, which tend to harm the reputation of another such that the estimation of him by the community or others is lowered and that they are deterred “from associating or dealing with him.” [7] Virginia law requires a court to initially decide whether a statement is reasonably capable of defamatory meaning before allowing the case to be presented to a jury. Further, Virginia law requires that inferences from the pleadings must be resolved in the plaintiff’s favor when deciding if the communication is reasonably capable defaming the plaintiffs by innuendo. [8] 

     The VCDL, Hawes and Webb contended the film was defamatory per se (meaning they did not have to show other evidence that the silent clip damaged their reputation). The precise argument Plaintiffs made was the film was defamatory per se because it was reasonably understood to suggest they were unfit as a gun-rights group, an attorney and as a gun-shop owner.[9] To establish defamation per se legally, there must be some connection between the content of the statement and the skills or character required by the plaintiff to carry out his or her particular occupation. 

     The court first applied this legal principle to Hawes, the attorney. His practice focused on firearms and self-defense and he argued the film suggested he lacked the required competency and ability to represent clients in such cases. However, the court concluded the background check question had nothing to do with Hawes’ legal practice or expertise. The three-judge panel concluded accepting eight-seconds of silence constituted defamation per se would require it to hold that such silence unequivocally suggested “professional ineptitude.”[10] The court was not willing to go that far.

     Likewise, the court denied gun-shop owner Webb’s claim because it did not find that the inserted clip suggested she lacked sufficient knowledge regarding integral aspects of purchasing firearms or operating such a business. The judges concluded Webb’s ownership of a gun store did not require her to have “nuanced views on gun policy.” [11]  The VCDL was also found not to be defamed because, while the interview was of its members, they were not identified as leaders of the VCDL and therefore, inserting the silent clip could not be construed to question the overall ability of the VCDL to serve its stated purpose. The court does make a contradictory statement by claiming that the silence in response to Couric’s question did not suggest the VCDL or its members did not have responses to the question because the film did show other questions concerning background checks. Then, the court goes on to say that “To be sure, the film gives the impression that Couric’s final question stumped the panelists.”[12] So, its seems that on one hand, the court acknowledges the editing suggested the plaintiffs had no answer to Couric’s question but also tries to say that this was “no harm, no foul” because other responses to similar questions had been presented.

     Procedurally, the courts may not have seen the last of this case as it is almost certain the plaintiffs will seek to have the Supreme Court of the United States review this decision.

     So, what are the takeaways for the media? What are the takeaways for persons being interviewed by the media? It seems to me, that one of the distinguishing features of this case is that one of the VCDL members interviewed was an attorney and the other a gun-store owner. The attorney represented individuals involved in gun-rights cases and also defendants facing criminal charges who were asserting self-defense to those charges. Webb owned a business that sold firearms and surely has some duty to lawfully sell those firearms. While the court ultimately concluded the edit did not challenge their competency to serve as an attorney or own a gun shop, one would have to admit it is a close call and Couric and her team could have faced a jury who would have decided if inserting the clip in lieu of their actual answers was defamatory. In my opinion, the questionable manner in which the clip was inserted would have likely been a factor a jury would consider in determining if the plaintiffs were defamed. Members of the media, therefore, should know the occupation of their subjects and other relevant information pertaining to how members of the community may identify them. The closer the interview topic is to the person’s profession, the less latitude you likely have in editing the answer to a question.

    If you are the subject of an interview, I think it would be wise to insist that any response you give to a question be shown without any editing and, if possible, in its entirety. This means that interview subjects should try to speak in sound bites rather than give protracted responses which the local news or a filmmaker may simply not have ample time to fully present. If you think you are potentially being “set up” by the interviewer, it may even be a good idea to inject in your response to a question about what your occupation is or what specific knowledge you may have about the subject. Leave no doubt that you are qualified to talk about the subject. This would possibly allow you to clearly create a nexus between your profession/occupation and the Q : A in case there are edits made that alter the accuracy of the response.

    While fictional filmmakers certainly have artistic license, it may not be too much expect documentary filmmakers or the news media to waive that license and accurately, without intentional alterations being made, present responses from an interview subject. It may be naïve to suggest this, but the public wants information presented in a fair and accurate manner where it can draw its own conclusions about that information.

  • 31 Jan 2019 11:12 AM | Jennifer Edwards (Administrator)

    Have a client who handles powders, fibers, or dusts? NFPA 652 – Standard on the Fundamentals of Combustible Dust – was approved as a national standard on September 7, 2015, with the requirement that a Dust Hazard Analysis (DHA) be completed at qualifying facilities within 3 years of its adoption. We’re coming up on that deadline. If any sort of dust, powder, or fiber is handled at a facility, it should be tested for combustibility to determine if a requirement for a DHA exists. Keep in mind that just about anything can be combustible if it is small enough! This includes wood dust, textile fibers, sugar, metal dusts, rubber, pharmaceuticals, and more. When in doubt, get it tested, and proceed from there.

  • 17 Dec 2018 11:22 AM | Jennifer Edwards (Administrator)

    Written by James C. Smolka, P.E., CFEI, CESCP, ESi

    As you read this article, you probably have a power strip under your desk that powers your laptop, your monitor, your cell phone charger, etc.  Power strips, which are officially known as relocatable power taps (RPTs), are designed to be used as a multiple outlet extension in the office and in the home.   Many RPTs are listed by Underwriter Laboratories Inc. (UL) meeting the requirements of Standard UL 1363.  Some RPTs have limited electrical surge protection and electrical noise filtering for sensitive electronic equipment. 

    When used as designed, RPTs are useful, reliable devices.  However, they have been involved in many fires.  Often the fires attributed to RPTs are related to the misuse of the RPT. The picture below shows an example of the misuse of an RPT.

    Relocatable power taps were designed for use in an area with a high concentration of low-powered loads such as computers, paraphernalia, and audio/ video equipment.  RPTs are not intended for use with high load equipment such as refrigerators, coffee pots, copiers, space heaters, microwave ovens, toaster, toaster ovens, hair dryers, and dehumidifiers.  Basically, if the electrical device has a large motor or a large heater, then it was not meant to be plugged into an RPT.

    According to UL, RPTs are also known as temporary wire taps and are considered temporary extension of an electrical circuit intended for indoor use.  The term temporary also refers to how an RPT is physically mounted. The mounting and removal of a RPT is permitted if tools are not used to secure it in place (i.e., a RPT cannot be secured to a work bench, desk, or a wall by bolting or screwing the RPT to a surface.). 

    RPTs are great for low power devices.  However, there are some do’s and don’ts.  According to the NFPA 1, Fire Code, and the UL White Book, RPTs:

    • Shall be directly connected to a permanently installed receptacle.
    • Are not intended to be series connected (daisy chained) to other relocatable power taps or to extension cords.
    • Are not intended for use at construction sites and similar locations.
    • Are not intended to be permanently secured to building structures, tables, work benches or similar structures.
    • Are not intended to be used as a substitute for fixed wiring.
    • Shall not have their cords routed through walls, windows, ceilings, floors or similar openings.

    The question for legal minds is, is it illegal to misuse an RPT in the work place?  In short, yes. There are ways that the misuse of RPTs can be considered illegal.

    The first way that the misuse of an RPT causes a legal issue through violation of the OSHA regulations.  The installation and use of electrical equipment, OSHA regulation (29 CFR 1910.303(b)(2) states:

    “Listed or labeled equipment shall be installed and used in accordance with any instructions included in the listing or labeling.”

    Since RPTs are listed devices, the misuse of a RPT in the work place is an OSHA type violation.

    The second way that the misuse of an RPT causes a legal issue is NFPA 70, National Electric Code (NEC), Article 110.3(B), which states:

    “Listed or labeled equipment shall be installed and used in accordance with any instructions included in the listing or labeling.”

    Since most states have adopted the NEC and have made the NEC a legally enforceable standard, not following the NEC results in a non-compliance of a recognized standard.

    Note that the OSHA regulations and the NEC use the same language regarding the use and installation of listed devices.  The OSHA regulations tell you what you must do, standards, like the ones from the NFPA, tell you how to meet the OSHA regulations.

    RPTs are used in almost all office environments.  So, take a moment and look around your office.  Are your RPTs in good condition?  Are your RPTs used as designed?  For safety reasons, the proper use of RPTs is not only recommended, it is an OSHA requirement. 

  • 14 Dec 2018 10:25 AM | Jennifer Edwards (Administrator)

    By Warren Savage, Lawyers Mutual

    As I rock on my porch muttering while watching you kids in my front yard, I remember my dewy days as a green lawyer trying my first few auto accident trials.  Being fortunate to start as an associate in the warm embrace of Bailey & Dixon in the ‘90’s, I was given my own small auto accident cases to prepare and try along with tons of go-bys, outlines, checklists, briefs, forms, and trial notebooks that the firm had developed through decades of trial practice. The partners and senior associates freely shared their time and wisdom and assured me that if I put in the hours and followed their advice I would be as well-prepared as possible for my first trials.  Over the next two years, I tried six or seven jury trials and learned that all that firm support and resources had only helped me to get to the courthouse door.  Once inside, I learned that each civil jury trial is a living breathing organism with a mind of its own having tentacles, rabbits, and red herrings.  Here are ten things I experienced during those early days of trial practice that have seared themselves in my brain for better or worse.  May these stories and observations provide you with guidance and amusement.

    1)      Jury selection is what the trial judge says it is.

    With loads of questions I had prepared to ask in jury voir dire, I appeared at calendar call one Monday morning in Johnston County with the second case on the calendar that week.  The visiting judge told all the attorneys with trials scheduled that he planned to try three or four cases and we should be ready at a moment’s notice to start our cases when the TCA called.  Late Monday afternoon, the call came in that my case would start the first thing Tuesday morning.  When I arrived the trial judge was in the middle of the charge conference with the attorneys in the trial that had started the previous day.  The judge informed us all that, while he finished up with the first trial, the plaintiff’s attorney and I should go in the adjoining courtroom and “work together” to pick a jury for our trial that would start immediately after closing arguments in the first trial while that jury was deliberating.  There would be no judge to rule on challenges for cause or objections during our voir dire, so the plaintiff’s attorney and I agreed that if any potential jurors said that they did not want to serve for whatever reason, we would let them go.  All other challenges would count towards our allotted eight peremptory challenges.  When the panel was passed to me, I asked whether any of the jurors knew the local plaintiff’s attorney or her partner.  Six people raised their hands saying they or a family member had been represented by the local firm in past personal injury cases, and all six were willing to serve as jurors.  Without the ability to challenge any of them for cause, I was forced to burn six peremptory challenges on my very first question.

    2)   Video depositions can be mind-numbingly dull at trial.

    In my very first trial, the plaintiff was a teenager who claimed to have been injured in a low impact auto accident resulting in excruciating chronic headaches and neck pain.  Having obtained the plaintiff’s school nursing records in discovery, they showed that the plaintiff had regularly visited his school nurse’s office once or twice a week for the two years prior to the auto accident complaining of the same headaches he sought compensation for in my case.  Armed for bear, I went into the video trial deposition of the plaintiff’s treating physician and meticulously walked him through each of the nurse’s notes.  Ultimately the doctor would not back off of his causation opinion, but did admit that it would be very hard to differentiate the plaintiff’s prior headaches from his headaches after the accident.  I confirmed that my questions and the doctor’s answers were accurately recorded in the deposition transcript and then watched as the video was played for the jury at trial.  As the recording played, I had the horrible realization that most of my questions were halting, monotone, and meandering.  The jurors were either asleep or openly hostile to me and the videotape as I just kept asking the same question over and over about the school nurse’s notes. The only thing that rescued me was the plaintiff attorney’s thirty minute re-direct at the end of which the juror’s disgust was audible in groans and snores.

    3)   You can’t script everything.

    While I mostly defended cases as insurance defense counsel, I occasionally had the pleasure of representing a plaintiff in defending a counterclaim asserted by a defendant.  In one early trial in Harnett County District Court, I acted as co-counsel with the plaintiff’s personal injury attorney in a case with disputed liability.  The accident report prepared by the investigating officer had originally attributed fault to the defendant driver.  However, at the insistence of the defendant, the officer revisited the scene two days later and then supplemented his accident report to state that the accident was the plaintiff’s fault.  The only witness to the accident was an adult passenger in my client’s car who we had subpoenaed to appear at the trial to testify for the plaintiff.  With trial proceeding more briskly than my co-counsel and I had anticipated, we realized that it was 4 pm and our final witness, the subpoenaed passenger, was not in the courtroom.  I was terrified that the trial judge was going to force us to close the plaintiff’s case without the passenger’s testimony, and then start the defendant’s case with her first witness, the investigating officer who had faulted our client in the accident report.  Instead, my fearless co-counsel took the bull by the horns and called the investigating officer in our case knowing that the officer’s testimony would not be helpful to our client.  With deft bobbing and weaving, she questioned the officer through the rest of the day in order to stall until the next morning when we escorted the passenger into the courtroom to get his critical testimony about the accident.  My co-counsel’s improvisation on the fly saved the day and won our client the case.

    4)    Jurors notice the tiny things.

    Juries want to do good things for good people.  Towards that end, jurors are constantly looking for clues to the character of the parties and the attorneys during trial.  In one of my early defense cases where liability was admitted, the plaintiff testified at length about his injuries including a brief description of how hard it was to give his son piggy back rides after the accident.  Thinking nothing of that testimony, I struggled to cross examine the plaintiff about the holes and inconsistencies in his medical records in an effort to convey to the jury that the plaintiff was a malingerer.  After only five minutes of deliberations, the jury came back with a verdict of “no injury.”  I was flabbergasted and questioned several jurors in the parking lot afterwards about how they reached such a conclusive verdict in such a short time.  The jurors said that they noticed that the plaintiff’s son was 15 years old. Either the plaintiff was lying about the piggy back rides, or he had injured himself by giving piggy back rides to a 150 pound teenage boy.

    5)   How you interact with your client in front of the jury matters.

    Jurors don’t just notice the tiny things in testimony, they also look for signals in your body language.  If you appear not to like your client, the jury is likely to do the same.  Jury voir dire is the first time that most jurors will see you and your client together, and the jury will notice if you never confer with your client or treat him as part of the trial team.  During breaks in trial at the courthouse, jurors will notice if you ignore your client or leave them to fend for themselves while disappearing back to your office or a conference room.  In lunch restaurants near the courthouse, jurors might draw negative inferences if they notice you eating at a table by yourself while your client eats separately.  Show genuine interest in your client as a person and value his input during trial, and hopefully jurors will follow your example.

    6)   Jurors will get bored and uncomfortable during a long trial.

    If you are in a long trial, jurors will hold it against the lawyers if they think their time is being wasted by legal machinations they don’t understand.  Objections, sidebars, and motions heard outside the presence of the jury will inevitably accumulate over the course of the long trial giving the appearance to jurors that they are being taken for granted or otherwise ignored.  Judges often recognize and sympathize with the jury’s peevishness and will become short and even hostile to one or both of the attorneys in front of the jury.  Similarly, long periods without water or bathroom breaks will drive a juror to distraction and resentment.  If you need to pee, it is very likely that one or more of the jurors needs to also. Be a hero, and ask the judge for a break that everyone could use.

    7)   Dress conservatively and nicely at trial.

    Save you sartorial expression for other occasions. Your goal is to be just another suit until you earn the gravitas to be different.  Bored jurors who don’t know you from Adam, will scrutinize your clothes seeking any insight into what you are like as a person.  Rumpled suits or loafers with no socks send a message that you may be ill-prepared or loosey-goosey with the facts.  You may wear bow ties and seersucker suits to bar functions, but as a new lawyer I would not wear a bow tie to court for a year or two or three. Some (but not all) experienced trial lawyers can carry it off, but probably not you – at least for a while. 

    8)   Instruct your client, your trial team, and everyone in your “audience” how to act during trial.

    In several of my early trials, I was helped immeasurably by the inappropriate or negative reactions of people on the other “side” when something they did not like went the wrong way in the courtroom.  During one trial, the plaintiff demonstrably shook her head every time I or one of the witnesses said something she did not like.  In another trial, rude gestures made by audience members there to support the plaintiff resulted in an exasperated admonition from the bench to the plaintiff’s attorney to control “his clients.”   Juror interviews following both of those trials revealed that the jurors had noticed the bad behavior and had taken offense to the disrespect it showed to my client and the court.  While none of the interviewed jurors admitted that it influenced the verdict, they all conceded that it was discussed among the jurors during breaks in the trial and at deliberations. 

    9)   Get to know and appreciate the courthouse personnel.

    The TCA, clerk of court, assistant clerks, bailiffs, court reporter and other courthouse personnel are invaluable resources for you as you learn to navigate the specialized world of courthouse/courtroom practice. No one knows more about the inner workings of the courthouse and the predilections of your judges and jury pool (and often the opposing attorney) than the clerks and bailiffs. Don’t be afraid to ask. Don’t be so impressed with your new status as a lawyer that you refuse to access the years of experience that courthouse personnel have to offer you. 

    10) Just because you won a case doesn’t mean you are a good trial attorney (and just because you lost doesn’t mean you stink).

    Whenever I hear a lawyer crow about winning all his or her cases, my first thought is always, “You must not try any hard cases.” You will win and lose case for all kinds of reasons out of your control.  For example, when interviewing jurors after one of my “wins,” I found out that none of them remembered much about my closing arguments or trial skills.  Instead, jurors believed the plaintiff was a liar after seeing her wear stiletto heels to court for three days while complaining about her lower back pain, a fact that I had not even noticed.   Similarly, some of the best lawyers I know have taken tough cases to trial and gotten hammered by a jury.  They weren’t worse lawyers after the verdict.  In fact in elite circles of trial attorneys, such battle scars mean as much or more than the victories. Trial skills, preparation, and charisma are important in the courtroom, but do not guarantee wins for your client.

  • 29 Nov 2018 10:56 AM | Jennifer Edwards (Administrator)

    By Melissa Walker, Asst. Attorney General, NC Department of Justice

    I carefully plan my work day in hopes of not having to be alone in the office after hours or when most people aren’t working. I call my spouse/parent/roommate before I leave my building and walk to the parking deck so someone knows where I am and what I am doing. I walk to the car with my keys out and ready so I don’t have to spend time looking for them and not paying attention to my surroundings. Usually, I have the metal piece of the key between my first two fingers so I can use it as a weapon if I were attacked. Before I get in my car, I look in the back seat to make sure no one is in my car. 

    I don’t schedule repair people to come to the house when I am home alone. I don’t answer the door when I am home alone.  I don’t tell callers I am home alone. 

    I don’t wear headphones when I go running. I tell my spouse/parent/roommate my intended path before I leave the house. If I deviate at all, I let someone know where I am. 

    These things may sound like standard safety tips or maybe the practices of a hyper-paranoid individual. In fact, I would venture to say, they are more likely the standard practices of half our population – practices that are done routinely without much further thought. I would also bet these are practices that would never even cross the minds of the other half of our population.  Go ahead.  Ask your spouse or significant other. What precautions do they take, or are these types of safety precautions not even on their radar? 

    #MeToo is a viral hashtag that began in October 2017, following the Harvey Weinstein sexual abuse allegations. The #MeToo Movement was popularized by several high profile American celebrities and intended to highlight the prevalence of sexual assault and sexual harassment, especially in the workplace. Although the hashtag went viral in 2017, the roots of the Movement go back as early as 2006, when Tarana Burke began using the phrase to raise awareness of the pervasiveness of sexual abuse and assault in society.  Recently, the impact of the Movement was returned to the media spotlight with the sexual assault claims and courageous testimony of Dr. Christine Blasey Ford during the confirmation hearings of then Supreme Court nominee Brett Kavanaugh.    

    So, beyond becoming a more educated, well-rounded individual, why is this relevant to you, your practice of law, and the North Carolina Association of Defense Attorneys (NCADA)?  The short answer:  diversity and the business case for diversity.  The Diversity Committee of NCADA strives to highlight topics that are relevant to your practice, but also topics that contribute to the enrichment of our profession as a whole.  Last year, the Diversity Committee presented topics focusing on race relations.  This year, we are highlighting topics addressing gender differentials.  The Committee selected both of these topics in furtherance of the business case for diversity. 

    A recent online survey suggests that 81% of women and 43% of men have experienced some form of sexual harassment in their lifetime.  A 2017 Survey Report found at the Center for Disease Control (CDC) represents that one in three women and one in six men have experienced some form of contact sexual violence in their lifetime.  A 2010 Summary Report found at the CDC represents that one in five women and one in 71 men will be raped at some point in their lives, while a 2001 Violence in the Workplace study shows that eight percent of rapes occur while the victim is at work. 

    Think of ten women in your workplace. Statistically speaking, eight of those ten women have experienced some form of sexual harassment and two of those women have been raped. The statistics are staggering; but again, why is this relevant here?

    Research shows that the disparate impact of sexual assault and sexual harassment on women in the profession forces women out of jobs and affects their career attainment.  Not only does the employer lose out on a qualified, diverse employee and their investment in that employee’s training and skills, but employers also face an increased turnover rate and a potentially hostile work environment from harassment claims that can lead to absenteeism, decreased morale, animosity, stress, and low productivity among staff. 

    Expensive lawsuits can result when companies fail to adequately prevent sexual harassment or when a company fails to properly handle a sexual harassment claim.  In the past several years, jury awards in sexual harassment claims have been significant.  In one claim, filed by the EEOC involving a rape and sexual harassment allegation against three male supervisors, the jury awarded the plaintiffs $17.4 million dollars.  In another case against a global CEO from New York, a jury awarded a former employee $18 million dollars for retaliation, after the CEO’s unwanted sexual advances were refused. 

    Ultimately, the impact of sexual harassment and sexual assault affect a business’s bottom line, as illustrated by the business case for diversity.  Today’s clients demand a diverse workforce; yet, many employers struggle with the recruitment and retention of qualified, diverse applicants.  The impact of sexual assault and harassment on a diverse workforce remains one of many factors in this continual struggle. 

    As the Diversity Committee continues to develop and explore this topic at upcoming CLEs, events, and publications in 2019, we hope you will engage with us as we endeavor to create a more diverse and enriched profession. 

    Specific questions on these topics?  Ideas for future topics?  Please let us know!  MelissaKWalker6@gmail.com

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