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Guardrails and End Terminals: Enhancing Roadside Safety

by Mitchell Chermak
QForensics

Introduction
Guardrails play a crucial role in ensuring roadside safety by preventing vehicles from encountering roadside hazards such as rigid objects, steep slopes, cliffs, or bodies of water. These protective barriers are strategically placed along highways, bridges, and curves to minimize the severity of collisions. In this article, we’ll delve into the world of guardrails, with a specific focus on guardrail terminals—the critical components that mark the beginning or end of a guardrail system.

Guardrail Face: Redirecting Vehicles Safely

The guardrail face is the visible part of the barrier that faces the road. Its primary purpose is to redirect a vehicle back onto the roadway if it veers off course. Here are some key points about guardrail faces:

1. Composition: The most common guardrail design features galvanized steel w-beam panels that are lapped and connected with rigid splice bolts. Alternative designs include concrete barriers and cable barriers.

2. Considerations: There is no single “best” barrier system. Each has its own benefits and potential drawbacks that make it better suited to specific applications.

o Cable Barrier: High-tension Cable barrier is often the preferred choice in relatively wide medians or on roadsides where there is sufficient “safe space” beyond the barrier location. Cable barriers have the greatest dynamic deflection of the three most prominent barrier types and are thus more forgiving for the occupants of the impacting vehicle. While that behavior is desirable in locations that allow for it, many locations where barrier is installed feature hazards that are located just beyond the barrier.

o W-Beam Guardrail: W-beam guardrail is considered to be a semi-rigid barrier. It still allows for some dynamic deflection, thus reducing the impact forces exerted on occupants.

o Concrete Barrier: Concrete barrier is considered to be a rigid barrier. It has essentially no dynamic deflection (except for precast, temporary barriers, which can move somewhat when struck). This makes concrete barriers the least forgiving for the occupants of an impacting vehicle, but also the only option for many situations where no room for dynamic deflection exists because the hazard is located immediately beyond the barrier.

End Terminals: Absorbing Kinetic Energy

While guardrails are meant to protect drivers from roadside hazards, they themselves can become a hazard, especially at the end, where the guardrail is secured with a rigid anchor, and the narrow, relatively sharp end of the guardrail is exposed to impacting vehicles. Guardrail terminals are the critical components at the beginning and end of a guardrail system, particularly those located within the clear zone for approaching traffic. Their purpose is to anchor the guardrail for redirectional impacts while minimizing the severity of a direct impact. Let’s explore end terminals in more detail:

1. Energy-Absorbing Guardrail Terminals:

o These designs utilize various means to dissipate energy, gradually decelerating an impacting vehicle. This is most commonly achieved by extruding the guardrail through an impact head that kinks, cuts, or crushes the guardrail as it passes through the impact head.

2. Gating End Terminals:

o Gating end terminals are designed to give and allow a vehicle to pass if struck near the end. Gating terminals are designed to function as a redirective barrier after a specific distance from the end.

Crashworthiness Testing

Guardrail systems undergo rigorous crash tests to assess their performance. These tests simulate real-world collisions and evaluate factors such as occupant safety, vehicle redirection, and structural integrity. The results guide improvements in guardrail design and installation practices.

Global Safety Standards

Several safety standards govern guardrail design and installation worldwide. Notable ones include:

1. NCHRP Report 350:

o The crash testing standards described in Report 350 were superseded by the Manual for Assessing Safety Hardware (MASH), but are still applicable for many existing installations, depending on the installation date.

2. AASHTO MASH:

o Developed by the American Association of State Highway and Transportation Officials (AASHTO), MASH provides guidelines for crashworthy guardrail systems.

o MASH is the current crash test standard for safety hardware used on new construction in the U.S.

3. EN 1317 (European Standard):

o EN 1317 outlines requirements for road restraint systems in Europe.

o It covers various performance levels and impact scenarios.

Legal Liability in Guardrail and End Terminal Impacts

When functioning properly, guardrails redirect vehicles and lessen the severity of collisions with rigid objects and other roadside hazards. Similarly, end terminals protect drivers and save lives by preventing the blunt and relatively sharp guardrail end from impaling an impacting vehicle. However, design defects, improper installations, and improper placement can sometimes yield devastating results.

Design

Although the crash test standards referred to above are generally quite effective at keeping dangerous or inadequate designs off public roadways, changes to design parameters after testing or selective reporting of biased crash test samples can lead to the installation of inferior products. While occasional negative crash outcomes are unavoidable due to the unpredictable nature of roadway departures and high variability in impact conditions, it is important to consider the potential reasons behind a severe crash outcome. What type of guardrail terminal was hit? Does that terminal have any known issues or prior litigation associated with it? What are those issues, and are they applicable to the present crash? Was the terminal installed properly? Were the impact conditions within typical limits, such that acceptable performance could be reasonably expected? All of these questions and more can help shed some light on whether severe or fatal injuries resulting from a guardrail or terminal impact were exacerbated by dangerous conditions hidden in the device itself.

Installation/Placement

In addition to deficiencies in the guardrail design, issues with location, installation, maintenance, and repair can also expose drivers to hazardous conditions. In many cases, the entity responsible for maintenance and repair may not be immediately evident. It may be necessary to obtain discovery documents to determine if a government agency or a private contractor is responsible for guardrail maintenance and repair in that particular area. It is not uncommon for a state DOT to enter into an agreement with a private contractor to maintain and repair guardrail in a particular region, defined within the contract. The contract should also specify whether the contractor is responsible for inspecting the guardrail at certain intervals, or whether they are responsible only for repairs after they have been notified of the work needed. In any case, due to the high risk of having a damaged and unsafe guardrail located alongside a traveled roadway, many states have standards regarding the procedures and timelines for repair.

The installation of a roadside or median barrier is initiated either by satisfying one or more warrants or through an engineering study that considers multiple factors and determines a guardrail installation to be appropriate. These warrants are typically described in the roadway or roadside design manual for the state in which the roadway and guardrail installation are located. There is also national guidance provided on the subject by the AASHTO Roadside Design Guide. In many cases, the absence of a guardrail that is clearly warranted could leave the state DOT, the roadway project design engineer, or even the contractor, liable for accidents resulting from the absence of a barrier that should have been provided based on relevant design standards. Standards based on the type of roadside hazard, the distance to the roadside hazard, median width, and other factors, are typically presented as definitive, and well-defined criteria that render a guardrail either required, recommended, or optional. Other criteria, such as crash history and roadway curvature typically require a more detailed engineering analysis to draw definitive conclusions on whether a guardrail installation is warranted.

Conclusion

Guardrails, along with their end terminals, are unsung heroes of roadside safety. By redirecting vehicles and reducing crash severity, they provide the potential for saving lives and preventing catastrophic accidents. As we continue to improve our transportation infrastructure, let’s appreciate the silent guardians that keep us safe on the roads, while also remaining vigilant to root out dangerous conditions present in some guardrail installations even today.

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Note:  the infomration provided in this article is based on industry standards and practices.  Always follow local guidelines and regulations when designing, installing, or maintaining guardrail systems.

About the Author:
Mitchell Chermak is a Mechanical Engineer with Quality Forensic Engineering. He specializes in accident reconstruction and forensic engineering research and analysis. In over five years of reconstructing vehicle accidents, he has analyzed many cases involving roadside safety and guardrail design, installation and performance.

By Allen C. Smith, Brooks P. Miller, and Julianna Grant, Hedrick Gardner Kincheloe & Garofalo, LLP and Austin R. Walsh, Johnston, Allison & Hord, P.A.

On September 22, 2023, Senate Bill 452, An Act to Make Various Changes to the Insurance Laws of North Carolina, to Amend the Insurance Rate-Making Laws, and To Revise High School Interscholastic Athletics, was presented to Governor Roy Cooper for signature. Because Governor Cooper took no action, SB 452 was codified as Session Law 2023-133 (S.L. 2023-133) on October 3, 2023. In addition to prohibiting male students from participating in female athletics, S.L. 2023-133 includes sweeping changes to liability, uninsured motorist (UM), and underinsured motorist (UIM) coverage in auto liability policies through amendments to N.C. Gen. Stat. § 20-279.21. The changes to UM and UIM coverage go into effect on January 1, 2025.

Specifically, the minimum automobile liability policy limits will increase from $30,000 to $50,000. Additionally, S.L. 2023-133 amends N.C. Gen. Stat. § 20-279.21 regarding the rules for service of process on UM insurers outside of the statute of limitations, the definition of an underinsured vehicle, and the calculation of a UIM insurer’s liability.

Uninsured Motorist Coverage

Before S.L. 2023-133, plaintiffs were required to serve a summons and complaint on uninsured motorist (UM) carriers within the statute of limitations. Nearly 50 years ago, the North Carolina Supreme Court established that this requirement was “consistent with the objective of uninsured motorist coverage of placing the insured in the same position as he would have been had the adverse motorist been insured.” Brown v. Lumbermens Mut. Cas. Co., 258 N.C. 313, 319, 204 S.E.2d 829, 833 (1974) (internal citations omitted). The service requirement was plainly stated by the Court of Appeals in Thomas v. Washington: “Failure of insured to serve [a] copy of the [the] summons and complaint on insurer within [the] applicable limitations period [precludes] … recovery under [a] UM policy.” 136 N.C. App. 750, 525 S.E.2d 839 (2000). If a plaintiff failed to serve the Summons and Complaint on a UM carrier within the statute of limitations, the UM claim was subject to dismissal. See Davis v. Urquiza, 233 N.C. App. 462, 757 S.E.2d 327 (2014). The statute of limitations could not be satisfied by mere notice; formal service of process was required to withstand a motion to dismiss. See Id.

Session Law 2023-133

The new language in S.L. 2023-133 states:

The insurer may also be issued a summons, complaint, or other process as an unnamed party and served by registered or certified mail, return receipt requested, or any manner provided by law. Service outside the statute of limitations shall be valid so long as the summons has been properly issued, preserved, and served pursuant to North Carolina Rule of Civil Procedure 4.

S.L. 2023-133(b)(3)(A) (emphasis added). This legislative change overturns 50 years of precedent. Now, a plaintiff may fail to serve the UM carrier within the statute of limitations for the tort action at issue as long as the summons and complaint are filed within the statute of limitations and the summons does not expire prior to service. This will place UM carriers in the same position as tort defendants with regard to statutes of limitations and removes a significant procedural defense.

Underinsured Motorist Coverage

S.L. 2023-133, Section 12(b)(4) amends the method for calculating a UIM carrier’s exposure. Currently, NC Gen. Stat. Section 20-279.21 reduces UIM coverage limits by a tort-feasor’s liability policy limits. For example, if a tort-feasor has policy limits of $50,000 per person / $100,000 per accident and a plaintiff has UIM limits of $50,000, the UIM carrier would have no exposure. UIM carriers will no longer reduce the amount of available coverage by the liability policy. Under the amendment, UIM carriers are now fully exposed up to their policy limits. In the above example, a plaintiff will receive the benefit $100,000 of insurance coverage having only paid for $50,000 of coverage. These changes will also result in increased defense costs for carriers, who will remain exposed in matters where they were previously dismissed as a matter of course.

Section 12(b)(4) also changes the definition of an underinsured vehicle. Presently, an underinsured vehicle is defined as “a highway vehicle with respect to the ownership, maintenance, or use of which, the sum of the limits of liability under all bodily injury liability bonds and insurance policies applicable at the time of the accident is less than the applicable limits of underinsured motorist coverage for the vehicle involved in the accident and insured under the owner's policy.” N.C. Gen. Stat. § 20-279.21(b)(4). When two or more injured persons pursue claims, “a highway vehicle will also be an ‘underinsured highway vehicle’ if the total amount actually paid to that person under all bodily injury liability bonds and insurance policies applicable at the time of the accident is less than the applicable limits of underinsured motorist coverage for the vehicle involved in the accident and insured under the owner's policy.” Id.

As of January 1, 2025, section (b)(4) will provide that an underinsured vehicle is any vehicle for which policy limits are less than “the total damages sustained by an individual seeking payment of benefits[.]” See S.L. 2023-133(b)(4). Before a claim is reduced to a judgment, personal injury damages are variable and subject to hard-to-value general damages (e.g., pain and suffering). Because UIM carriers will have less certainty whether a tortfeasor’s vehicle is underinsured, carriers are likely to incur increased defense costs closely monitoring a claim.

The ramifications of S.L. 2023-133 will hit insurance carriers and insureds alike. Each change to N.C. Gen. Stat. § 20-279.21 increases UM and UIM insurers’ risk and exposure. It is likely this increased risk will be passed on to the citizens of North Carolina in the form of higher insurance premiums. The legislature’s intention, whether at the behest of plaintiffs’ attorneys or not, was to increase the recovery for injured parties. The ultimate cost remains to be seen.

This article provided by the General Liability Practice Group

By: Louis J. “Johny” Hallow, III

As a young attorney, I am blessed to work in a firm with several mentors. In this piece, I speak with two of my personal mentors, Phil Hornthal and Don Prentiss, about their advice for young attorneys. Phil and Don are both long-standing partners at Hornthal, Riley, Ellis & Maland, LLP, in Elizabeth City, North Carolina. Phil and Don have both practiced law for more than thirty years, and have been heavily involved with a number of North Carolina Bar organizations, including the North Carolina Association of Defense Attorneys. Both Phil and Don focus on insurance defense, mediation, and general civil litigation.

What was the best advice you were given as a young lawyer?

Hornthal: One of the best pieces of advice I received as a young lawyer came from Dan Hartzog: “Do it now.” Whether you have an email you need to respond to or a pleading you need to file, do it now. If you procrastinate, you have a much higher chance of forgetting your task and falling behind.

Prentiss: When I first started practicing law, a lawyer on the other side of a case I had asked for an extension of time. I wanted to give him a hard time about it, but the senior partner at the time, Dewey Wells, pulled me aside and told me: “The practice of law floats on a sea of accommodation.” That piece of advice has always stuck with me. It is important to always try to get along with other lawyers until they give you a reason not to.

What do you believe is the appropriate work-life balance for a young attorney?

Hornthal: I think this varies for all young attorneys, especially with the current generation of young attorneys. These days, there appears to be a trend that young attorneys are more interested in maintaining a work-life balance and spending time outside of the office as opposed to earning high salaries. But for all attorneys, especially young attorneys, it is important to maintain a work-life balance to avoid burn out. I think it is important for all attorneys to have some type of hobby that they can engage in to spend some time away from work.

Prentiss: That is an interesting question. If you had done this survey twenty-five years ago, you never would have heard that question. But, I think older lawyers are likely wrong about not giving work-life balance more attention. It is important to work hard early in your career to establish a reputation. It is important also to spend time with your family and friends and have a work-life balance. With that said, all attorneys need to work hard and put the necessary time in to become a good lawyer.

What advice do you have for a young attorney who is feeling overwhelmed with their caseload?

Hornthal: Seek help from a mentor. One of the worst things an overwhelmed young attorney can do is let the pressure build up and never seek help from a mentor. Having a good mentor—whether it is in the attorney’s own firm or another firm—is essential for a young attorney. When overwhelmed, a young attorney can seek advice from a more experienced attorney about how to sort through their various assignments and stay on track.

Prentiss: Talk with someone, whether it is a partner in your firm or a mentor. I believe mentoring is critical, especially for young lawyers. The willingness to ask for help is the most beneficial thing a young attorney can do when overwhelmed.

Do you think it is important for young attorneys to be involved in organizations outside of the legal profession, whether it is a kickball league or the board of a local nonprofit organization?

Hornthal: Absolutely. This point ties into the question regarding a work-life balance. If a young attorney is involved in local non-profit organizations and other activities outside of the practice of law, it gives the young attorney an opportunity to step away from the legal field and interact with people in their community. This not only leads to an improvement in mental health, but also helps with client development.

Prentiss: Absolutely. Whether it is a big firm or small firm, all attorneys need to give back to the community. I think young lawyers should get involved with different bar organizations and within their own communities. There are numerous opportunities for young lawyers to get involved in their communities, and that is something that can really help with developing a work-life balance.

We often hear the term jack of all trades, master of none. Do you think young attorneys are better served focusing on mastering a few select practice areas, or should young attorneys be willing to take on unfamiliar subject matters?

Hornthal: I think there are pros and cons to both. On one hand, some attorneys may feel more comfortable mastering a few select practice areas and staying within those bounds for their entire career. This is especially true in larger firms. On the other hand, I also think young attorneys should be willing to take on unfamiliar subject matters. In my view, stepping outside of your comfort zone is one of the best ways that a young attorney can develop and learn. Often times, if a young attorney takes on unfamiliar subject matters, he or she will learn things along the way that will help in familiar subject matters.

Prentiss: The latter. Too many people come out of law school and are too focused on a specific practice area. To develop as a lawyer, you need to have exposure to a variety of practice areas. This is especially true early in one’s career. If you are a litigation attorney, for example, you should be willing to go to small claims court, attend depositions, take on trials against pro se litigants, etc. Also, by engaging in a wide variety of matters, young attorneys will have a better idea of what practice areas they want to specialize in as their careers develop.

What is one thing you know now that you wish you knew when you first started practicing law?

Hornthal: A bad result in a case is not always a bad thing. Often times, a bad result comes from a good learning experience. There will be cases that present a number of problems; but as long as you can give the client the pros and cons of trying the case, and feel confident in giving that advice, it is worth trying the case, even if you are likely to have a bad result, as long as the client understands and accepts the risk.

Prentiss: There are several things here. But, if I had to narrow it down to one piece of advice, I would say that procrastination is your enemy. I have been practicing law for almost forty years, and I still struggle with procrastination. When you procrastinate, you often find yourself scrambling at the last minute and trying to put out a fire. I know this sounds like common sense, but it is something that you do not appreciate until you procrastinate and find yourself in a tough situation.

What trial tips do you have for young attorneys?

Hornthal: Overprepare. It is always better to be overprepared than underprepared. The last thing you want to do as a young attorney is walk into a courtroom feeling unprepared. If you are overprepared, you will be able to focus on the different elements of a trial and the potential problems in your case as opposed to the mere fact that you are underprepared.

Prentiss: You need to know your case inside and out. It is important to think about what can go wrong. If you know your case well enough, you will have a sense of what opposing counsel will try to accomplish at trial. You do not want to think about these things in the middle of the trial. On the contrary, you want to have thought about this before trial so that you can comfortably address any problems during the trial.

How should a young attorney prepare for their first trial?

Hornthal: Again, a young attorney should always overprepare for a trial. A young attorney should also seek advice from a more experienced attorney in preparing to try a case, regardless of whether the young lawyer is a solo practitioner or works in a law firm with several seasoned attorneys.

Prentiss: Pick a theme and pound it. You should focus on hitting the theme in jury selection, the opening statement, direct examination, cross examination, and the closing argument. You want to have a good theme that you can weave into all elements of your case.

What mediation tips do you have for young attorneys?

Hornthal: Be patient. I have handled several mediations both as the mediator, and as a party subject to the mediation. One thing I never realized until I served as a mediator is that you never know what is happening in the other room. So, if a mediation begins and the parties are on complete opposite ends of the spectrum, remember to be patient and let the mediator do his or her job. I also think it is important for a young lawyer to be overprepared for a mediation. Not too many cases are tried these days, and more often than not, the mediation is the place to resolve the lawsuit. Given that the mediation may be the final step in the process more often than not, a young lawyer needs to know the case inside and out and be fully prepared.

Prentiss: From the perspective of a defense lawyer, know that most lawyers on the other side of your case in the mediation do not want to try the case. You can often settle cases for a lower amount than you think because the lawyer on the other side does not want to try the case.

Is it helpful to start with a reasonable response to an opening demand in mediation, or should a young attorney start with a low offer?

Hornthal: I have always had more success starting with a reasonable response. In my experience, I have found that low offers often lead to a waste of time, and as a result, a waste of the client’s money. The purpose of the mediation is to resolve the case, so I see no reason why the parties shouldn’t come in with reasonable offers in attempt to reach a resolution. I know several attorneys that prefer to start with a low offer, and I understand why they do so to a certain extent, but I have always had more success starting with a reasonable offer.

Prentiss: As a lawyer and a mediator, it depends on the demand. It is frustrating when the other side does not know what the insurance limits are, or if the other side comes in with a demand that exceeds the limits. But if you get a reasonable demand, you want to respond with a reasonable offer. This will avoid wasting everyone’s time and money.

What deposition tips do you have for young attorneys?

Hornthal: Like with mediation, be patient. Additionally, I think it is important to really listen to the witness. While I believe it is beneficial for all lawyers, especially young lawyers, to prepare a list of questions for the witness, it is equally important to listen to the witness as you ask the questions. Often times, by listening to the witness, you will think of questions you did not consider before the deposition began and can force the witness to expand on important topics that you may not have thought of in advance.

Prentiss: Give the deponent a chance to talk. I find too often that the questioning lawyer spends too much time talking and asking closed ended questions. This often leads to a lack of information at the end of the deposition. I think attorneys should focus on asking open-ended questions and giving the deponent a chance to talk. I also suggest thinking about what documents you want to use in the deposition. If you have favorable documents, you may want to use those to force the witness to admit certain facts.

What is your strategy with introducing documents in depositions? Do you prefer using several documents as exhibits, or do you try to limit your use of documents?

Hornthal: I usually avoid the overuse of exhibits during depositions. This is partially because it is easier to actively listen to a witness speak without having to worry about introducing certain documents and keeping them organized. Of course, there are several instances where I use exhibits to force witnesses to admit certain facts that I will want to introduce at trial, such as the position and condition of an automobile in a negligence case. But unless there are specific reasons to introduce certain exhibits, I typically focus on making sure that I am listening to the witness’s testimony. When you are worrying about where your documents are and whether you have introduced them in the correct order, you often times are missing opportunities to hear what the witness is saying and see how they are physically responding when prompted by your questions.

Prentiss: I think this is something I deal with on a case-by-case basis. From my practice, which has been heavily personal injury defense oriented, I do not think you should be afraid to introduce documents, especially medial records. For example, if a deponent admits they told a doctor that they felt okay on a certain visit, the attorney can cross-examine the witness on that statement while at trial without having to deal with introducing the medical records from the visit.

What are the most common mistakes you see young attorneys make, and how can those mistakes be avoided?

Hornthal: The most common mistake I see young attorneys make these days is having a sense of entitlement. Some young lawyers these days feel that, because they went through law school, passed the bar exam, and became lawyers, they are entitled to certain things in life and in the practice of law. This sense of entitlement often leads to laziness, a lack of preparation, and poor treatment of clients and other lawyers. I think it is important for young lawyers to remember that they are, in fact, young lawyers; and that the practice of law is a privilege.

Prentiss: First, I see several young attorneys asking questions of their own questions in a deposition. Most of the time, this is counterproductive. It is okay to clarify the record; but too often I see lawyers asking questions of their own clients, which leads to additional information coming out of the witness that may be harmful to the case. This also gives the opposing attorney an opportunity to cross examine the witness a second time on the newly released information. The second common pitfall I see with young attorneys is failing to calendar their deadlines. I recommend that all attorneys create their own scheduling orders or deadlines, even if there are no formal orders or deadlines involved in the case.

What has impressed you the most about the young attorneys that you have come into contact with?

Hornthal: I am always impressed with a young attorney that has a strong work ethic. As mentioned earlier, there are several young lawyers that have a sense of entitlement and do not work as hard as they should. If a young lawyer has a strong work ethic, that work ethic will lead to better work product, more clients, and better case results.

Prentiss: Older lawyers tend to be more obsessed with the practice of law and it becomes their entire life. Younger lawyers seem to have a better feel for work-life balance and quality of life. The practice of law is your profession, not your life; and it should not dominate your life.

What tips do you have for young attorneys that want to continue to advance professionally?

Hornthal: Do not be afraid to try something new; and do not be afraid to reach out to a mentor about advancing professionally. That goes for both solo practitioners and young attorneys that work in firm settings. If a young attorney wants to advance professionally, there are several opportunities to do so. There are also several more seasoned attorneys that are willing to help develop young attorneys.

Prentiss: I suggest that young attorneys get involved with legal groups, such as the North Carolina Association for Defense Attorneys or the Advocates for Justice. This creates new opportunities for young lawyers and allows them to meet other attorneys that they would have never met otherwise. For small firms in small towns, this can be especially beneficial.

What advice do you have for a young attorney who finds themselves facing off against a more experienced attorney?

Hornthal: Again, it is better to be overprepared than underprepared. While every case has its own set of facts that may favor one side more than the other, you can never go wrong by overpreparing for a case and ensuring that you are not outworked by the more seasoned attorney.

Prentiss: Remember that the older attorney has the same insecurities as the young attorney. The best thing you can do with a more experienced lawyer on the other side is out work them. If you know your case inside and out, the fact that you are up against a more experienced lawyer should not make a difference.

Do you think experienced staff should play a role in guiding a young attorney?

Hornthal: Absolutely. As mentioned earlier, many young attorneys have that sense of entitlement that they do not need to listen to staff because staff are not lawyers. But that is not the case. Many staff members in law firms have been with the same law firm for decades, and can do almost everything an attorney can do, with the exception of signing pleadings and a few other things. With the significant amount of experience these staff members have, they can serve as a significant aid in helping a new attorney understand their duties and roles.

Prentiss: Obviously, staff cannot practice law. But, they can surely help you find the courthouse and tell you who to speak with at court houses in certain counties. Staff can help with several things that attorneys are not taught in law school. Also, having a good relationship with staff is an important part of being a good lawyer and good person in general.

What risks should a young attorney be willing to take?

Hornthal: Young attorneys should be comfortable in taking risks. As mentioned earlier, taking on cases that may not have the most favorable facts may help the young attorney develop significantly. Taking risks is always a good way to learn, if the risk is calculated, and the attorney feels comfortable taking it.

Prentiss: The first thing I’ll say is do not take any risks with ethics. If something does not feel right, you should not take the risk. On the other hand, you should be willing to take on a novel theory to a case, especially if the law and facts are not on your side. Having a novel theory to a case is often a way that lawyers can win cases that seem impossible.

A Forensic Orthopedist on the Intersection of Medicine and the Law

By Joshua M. Peck for Juris Medicus

As a forensic orthopedic and spine surgeon, Dr. James Barlow has seen it all, but one case sticks out in memory.

It fell to Barlow one day a few years ago to review the records of a patient who was suffering from what she described as “full-body, excruciating pain” after what seemed to be a minor auto accident, with little damage done even to the vehicles involved, and less to the people.

“In three months since the accident,” Barlow says, “she had accrued something like 65 office visits with different providers—orthopedists, pain specialists, every specialty known to man. She had every conceivable test, and her records, tests, and radiology showed no plausible explanation for the level of pain she reported.”

“My job was to go through her records and see what might explain the extreme symptoms she reported. It turned out that her records showed that she had been reporting extreme pain to doctors, even before the accident, seemingly with no cause. When it came time for my report, I had to report that ‘No one’s going to find anything, because there’s nothing to find.’ On the stand, in front of the jury, I testified that ‘I’m afraid she doesn’t need another medical specialist; she needs a psychiatrist.’” The defense prevailed.

Dr. Barlow is real, but his name is not. Since he usually testifies for defense attorneys in accident cases, he has had to sit in court more than once as plaintiffs' attorneys accuse him of always favoring the defense. This is not even remotely true, he asserts. It is his practice to provide objective reports to attorneys, which are not always favorable to one side or the other. If his name were to appear in the NCADA News, he would undoubtedly be questioned about his remarks by a plaintiff’s lawyer. Therefore, he thought it best to cloak his identity. An editor at NCADA verified his background and credentials, as a practicing surgeon and witness with more than 20 years’ experience.

A Home at Juris Medicus

Barlow does want it known that he is one of the more than 400 physicians associated with Juris Medicus, the consulting firm that supplies medical experts for litigation in Texas, Florida, Georgia, South Carolina, and, as of a few months ago, North Carolina, with occasional forays into other states.

In other medical specialties, there may be a range of legal complaints that land on an expert witness/doctor’s desk, but in Barlow’s specialty, virtually every case stems from an auto accident or a slip and fall. When the case comes to him, his first step, he says, is to secure every conceivable medical record of the litigating patient, and that includes securing his or her medical records from both after and before the accident.

“The thing I’m most interested in is accurate, robust, and complete medical records, and for an obvious reason,” Barlow says. “I have to see whether what the patient is describing regarding pain or disability might be a pre-existing condition, or more likely to be caused by the accident itself. The attorneys on the plaintiff’s side may be reluctant to part with records that fully answer that question, but I’m either going to review them, or report to the court that they would not disclose this vital medical information,” he added.

One strategy that he learned over his 20 years of consulting is never to accept another physician’s written report or description of an MRI scan or X-ray in isolation. “That report is only an opinion,” he says. “I want to see the film or MRI itself and form my own opinion of what it shows. That’s what I’m being hired to do—come to my own conclusion, not dutifully accept another doctor’s.” And he notes, they do not always see eye-to-eye.

On occasion, he sees doctors for the other “team” surrender the full medical account only reluctantly. “They like to slow-play some of the records,” Barlow says. “I’ll wait for them for a time if needed, but if they’re not delivered at all, I’ll testify to that in court. That does not look good for the other side.”

When he reviews records, Barlow always has an eye out for mentions of doctors a patient may have seen in the past. That provides another source for background on the patient’s medical history and can be key to understanding what happened to the patient, and when.

Witness Work? Only After Hours

Like other Juris Medicus consultants, Barlow is anything but a full-time witness; in fact, he only works on forensic cases after his regular office hours. He is a full-time, hospital-based surgeon, and he is passionate about his job. “I love working with patients in my practice, and helping solve their issues,” he says. The two parts of his work world are a universe apart, he notes. “With my patients, I get to ask them all the questions that will get us to a solution: ‘Tell me about the accident or fall. Where does it hurt? Does anything you’ve done relieve the pain?’ In forensic work, it is not like that.I never see the patient, just their records, from which I must come to my own conclusions and advice. However, I am still providing a valuable service seeing to it that blameless defendants are not held responsible for medical issues they did not cause, and conversely, informing defense attorneys when claims are legitimate, and litigants should be compensated.

Asked if he is free to tell his client/attorneys the truth, as opposed to what they may want to hear, he replied “Absolutely. My commitment is to the truth, not to any particular ‘telling’ of the facts...I have advised attorneys I’m working with that they should pay or settle a case because the accident really did cause the problem.” He adds that medical and legal ethics dictate that a testifying doctor’s allegiance is to the truth, and he rigorously complies with that demand.

Asked what skills he learned to succeed as an expert witness in court, Barlow says he sometimes finds he needs to switch into “teacher mode,” while being careful not to sound condescending. “I always remember to look at the jury and speak to them, not to the attorney asking the questions. I may have to use some medical jargon, but I try to speak plainly and slowly, and to explain medical terms, just as I would with a patient in my office. It is my job to make sure that the answers I give are understandable to jurors of every background; they’re not all college graduates.”

And another tip: “I’m not there to give a medical lecture on orthopedics or spine surgery. I answer the question, and then...I stop talking,” he adds with a laugh.

Of crucial importance is Barlow’s insistence on not answering questions beyond his expertise. “A lawyer might ask me about the mechanics of a car crash, and the dynamic forces impacting the car and its passengers. My answer in this scenario would be to acknowledge that the question posed is not a medical question. I’d redirect the lawyer to ask an accident investigator whose expertise lies in that arena. That’s not my wheelhouse.”

Doctors are often “at sea,” Barlow observes, when it comes to the first time they are called upon for testimony. “I’m sorry to say that medical education has absolutely nothing to say about testifying in court or dealing with the legal world at all. You get your first letter from a lawyer, asking for records for some kind of litigation, and you pretty much must work it out for yourself. Like most doctors who do expert testimony, I learned my forensic skills on the job—simply by doing it,” Barlow says. He adds, “It might be a good idea for medical schools to at least alert students that they may be required to provide legal testimony down the road, and to teach them the basics.”

What has changed about forensic medicine? Barlow is asked. A few things, he says. With each passing year, he observes attorneys on both sides of cases seem to be increasingly familiar with medical concepts and terminology. “It helps me do my job when a lawyer is already up-to-speed on the subject,” he says. “And I think more knowledgeable attorneys ultimately contribute to fairer dispositions.”

Reflecting on his many hours in depositions, court proceedings, and consultations with attorneys, there are a few other moments that stand out, besides the chronic patient mentioned above. A radiologist, testifying for a plaintiff, referred to a minute 1.8-millimeter tear in a spinal disc as a “herniation.” A herniation is much more serious than a mere tear, and Barlow said such a small gap should not be called a herniation at all. “The report he wrote made it sound more serious than it could possibly be. The radiologist called the case ‘acute,’ and it simply wasn’t, and the MRI proved it,” Barlow says. “It’s always fun when you can scope out the truth and get to the heart of the matter.” Or more aptly, when you get to the backbone.

Joshua M. Peck is a freelance writer and legal communications specialist based in Georgia.

Juris Medicus is a 2024 Silver Partner with NCADA.

by Derek J. Dittmar, Lewis Brisbois

My life changed forever on the afternoon of November 10, 2014, when I met Howard. Howard, for those who haven’t had the pleasure, is a sweet-eyed black Labrador retriever with a giant head and a tail that can clear a coffee table with one mighty swipe. He is also my guide dog, and the reason I became a lawyer.

Working with a guide dog, as compared to using a white cane, feels like riding a motorcycle. The cane allows you to identify obstacles and safely navigate them. A guide dog skips the obstacles entirely, focusing instead on maintaining its straight line of travel. The feel of freedom is, however, met with challenges and obligations. Many business owners and members of the public do not understand the important job that guide dogs have and are unaware of the federal and state laws that protect service animals and their partners. Working as a guide dog handler is, more often than not, an exercise of advocacy, patience, and education. I undertook these exercises in college, and the ability to advocate for someone important to me pushed me to attend law school.

Unfortunately, guide dogs do not work forever, and it eventually comes time to retire them. Howard has seen me through nine years, two graduations, four countries, three legal jobs, and my wedding. He has seen me home through countless safe street crossings, public transportation trips, and unfamiliar areas. He has more than earned his rest and retirement. As he prepares to go to his new home at the beginning of the year, I have been reflecting, in part, on the network of federal and state laws that have protected our partnership.

While most people know that guide dogs are permitted in public places, the actual network of laws and interpretive guidance is more nuanced. As a defense attorney, I recognize that my clients want to be accommodating to dog-human teams while protecting themselves, and other patrons, from the risk of litigation or the dangers associated with fake service animals. It appears prudent, in other words, for a quick refresher on service animal law, particularly as it affects our clients.

First, we need to get the terminology right. Service animals are specifically defined under the ADA as dogs (or miniature horses) that are individually trained to do work or perform tasks for the benefit of an individual with a disability where the tasks are directly related to the individual’s disability. This definition is contrasted with an emotional support animal (ESA) that may benefit an individual, but (1) that individual does not have to be disabled as that term is defined in the ADA; and (2) the animal does not have to bely individual trained to do work to benefit that disability. This distinction is important because service animals are protected under the ADA and state law while ESAs only receive protection under housing law.

In order to determine whether an animal is a service animal, members of the public may only ask the handler two questions. First, they may ask if the service animal is required because of a disability. Note that they may not ask the nature of the disability. Second, they may ask what work or tasks the animal has been trained to perform. They may not ask the individual to demonstrate these tasks, nor may they ask for an identification card or certification. In fact, there is no such thing as a federal certification for service animals recognized under law. If the answer to these questions demonstrates that the animal is a service animal, then places of public accommodation (such as restaurants, stores, and attorneys’ offices) and governmental entities (such as jails, courthouses, and offices) must allow the service animal and its handler inside. I recognize the risk that unscrupulous persons may bluff their way through these questions in order to bring their pets inside animal-free zones. However, sticking to these questions will likely help our clients limit litigation risk, and they always have the right to ask that the human remove the service animal if it is out of control and the handler cannot or will not control it or the animal is not housebroken. Employers should also note that allowing a service animal as an modification to a no pets at work policy has been repeatedly recognized as a reasonable accommodation. Violations of the service animal portions of the ADA can result in governmental investigation and fine, as well as civil action where the plaintiff may be entitled to injunctive relief and an award of attorney’s fees. Unfortunately, drive-by ADA litigation has seen an exponential increase in the past six years, so this is a very real risk to any public-facing entity.

The above definitions and guidance come from the Americans with Disabilities Act and its interpretive guidance from the Department of Justice. In contrast, a recent amendment to the Air Carrier Access Act, arising out of several well-publicized incidents of fake service animals, allows airline personnel to identify proper service animals “by observation” and to require service animal teams to file paperwork 48 hours before their flight attesting to their service animal’s behavior. Failure to file this paperwork could result in the team being prevented from flying. While this change was brought in response to fake service animal teams, its actual impact has chilled the travel ability of many service animal teams.

In North Carolina, our general statutes provide more robust protection for service animal teams. First, N.C.G.S. § 168-4.2 protects both service animals and service animals in training. Second, N.C.G.S. § 168-4.5 makes it unlawful to falsely claim that a pet is a service animal, to prevent service animal teams from enjoying equal goods and services, or to charge a service animal fee. Finally, N.C.G.S. § 14-163.1 criminalizes the killing, hurting, or intentional distracting of service animals. While law enforcement personnel are often not aware of these laws, they do exist and violations can range from misdemeanor to low-level felony. These benefits work together to provide a robust set of protections for service animals in our state, and they are greatly appreciated.

Service animals change lives, but they are only able to do their jobs when people understand the ways in which the law protects, and limits, working animals. Howard and I benefitted from our understanding of these laws, and I hope that my brief reflection and overview will be of use to you and your clients.

_______________

Derek Dittmar is an attorney in the Raleigh office of Lewis Brisbois Bisgaard & Smith. He focusses his practice on civil litigation, disability accessibility/accommodation, and administrative occupational licensing law. He can be contacted at derek.dittmar@lewisbrisbois.com or at (919) 459-6150.

Howard Dittmar began serving as a guide dog on November 10, 2014, and will officially retire on January 6, 2024. Howard was raised in the central valley region of California and trained at Guide Dogs for the Blind (“GDB,”) the second oldest dog guide training school in the United States. Each guide dog costs roughly $50,000.00 to breed, train, and support, and GDB provides its guide dogs, as well as post-graduation training and medical support, to its clients free of charge. Learn more at https://www.guidedogs.com/.

by Nathan Hewitt, Hamlet Law
Vice Chair, NCADA Paralegal Division

The 2nd Annual NCADA Paralegal Seminar is scheduled for Thursday, December 14th, 2023. As we await this year's event, let's take a look at some key takeaways from the first seminar held last year from our all-star speakers!

In the first segment, "The Rules of Engagement: Primer on Federal and State Court Rules," Bobbie Kullman of Amwins and Kellie Myers, Trial Court Administrator for Wake County, discussed important topics such as where to find applicable rules, the most frequently used rules, recent changes to rules, and how to find local rules and customs.

Next was "Who's Who? How to Effectively and Efficiently Research Jurors," presented by Scott Addison of Lincoln Derr. Using the films The Judge and Runaway Jury, Addison presented ethical ways to research juror information, how to determine which information is relevant when selecting jurors, and the best formats for organizing juror information for the trial attorney.

In "Social Media – Discovery, Ethics, Evidence & Sanctions," Damon Beaty of Veritext Legal Solutions presented on how advancements in technology have transformed the practice of law, blurring the lines of public and private identities. Beaty discussed ethical considerations, recent case precedents, and specific techniques and tools to identify and collect evidence from social media sources.

Amy Smith shared her "Tips and Best Practices for Assisting with Document Review & Production" in the next segment, focusing on document collection, organization, standardization, review, and production from both parties and non-parties. She also discussed how to withhold privileged documents from production.

Finally, Christie Herding of Pettey & Partrick, LLP, shared tips on "A Paralegal's Role in Trial Prep and Trial." Her presentation emphasized the importance of proper trial preparation, including assigning tasks, compiling case/trial notebooks and exhibits, reviewing local rules and procedures, predicting exhibits and witness testimonies, and preparing physical equipment and technology.

As we reflect on the first NCADA Paralegal Seminar, we are thrilled to see the positive feedback from attendees. Here are some reviews from participants:

• "All topics applied to my everyday duties as a paralegal. I appreciated the experience and expertise of the speakers."
• "All the presenters gave us very useful, practical information. Thank you for putting together a great seminar."

We are delighted to hear that the seminar resonated with paralegals and provided valuable insights. We believe that the 2023 Paralegal Seminar, scheduled for December 14th, will be even more insightful and beneficial. We encourage paralegals to attend again this year and take advantage of the opportunity to learn from experienced professionals in the field. Program details are forthcoming!

By Kevin Smith, CS Disco

Artificial intelligence has reached an inflection point. No one can deny its potential, but many fear its power. Key considerations around data security and privacy, the future of work, and government regulation will be paramount for business leaders as they evaluate AI adoption within their organizations.

The harbinger of change, the launch of ChatGPT has led to a cultural phenomenon that has spurred a wealth of interest in developing AI. According to Swiss banking giant UBS, the generative AI application may have become one of the fastest-growing apps in history after it was estimated to have reached 100 million monthly active users. The introduction of this groundbreaking tool into the market combined with the growth of Large Language Model (LLM) solutions has provided enterprises with a new paradigm for how to evolve their day-to-day business processes, or at least the promise. This is a genie that is unlikely to go back in the bottle.

Yet as business leaders and global organizations are eagerly seeking to accelerate their AI adoption efforts, concerns about the data security, privacy, and AI “hallucinations,” and regulatory compliance remain top of mind. As enterprises seek to leverage the strengths of AI, they must also mitigate its risks.

Recently, there has been increasing scrutiny over how accurate and reliable ChatGPT’s intelligence is, adding another layer of complexity to the current AI boom. Intelligence might be the wrong way to think about what these models and derivative technologies do, but in this accelerated environment, it will be critical for organizations to carefully evaluate each new solution before integrating it into critical operations and processes.

The State of AI

While generative AI technology remains nascent, it’s poised to accelerate the maturity of capabilities around document parsing, code generation, and effective information extraction. Variations of AI are being adopted across industries, with the financial services sector leading the way due to the effectiveness of AI’s predictive algorithms in assessing, predicting and mitigating risks. Conversely, industries heavily reliant on non-quantifiable decision-making, such as marketing and manufacturing, have been much slower to embrace AI (Statista).

So how does Gen AI become enterprise ready? Much has been written and spoken about in conferences and sales pitches about its promise to fundamentally disrupt the enterprise workforce. It is true that this represents a generational agent for change, but it is not quite ready… yet.

OpenAI was sprung onto the world and the gears of imagination started spinning incredibly quickly due to getting a taste of this technology’s potential. But there are three core things every product person thinks about in terms of innovation: Product Market Fit - Does it do something really well in a way that has not been done before? Is it Secure - In today’s world there are many tests for this, including what happens with the data we share with these essentially OEM technologies. And lastly, have the innovators broken the context of the systems and tools used to do work or is the innovation elegantly embedded to enable management and quality control of the jobs they aim to support.

Generative AI is excellent at using the information it was trained on and the context that was provided to produce stunning synthesis of information and generation of novel content, whether code, responsive prose or general information structure. We have tested dozens of LLMs on different legal jobs and leveraged experts to assess whether the product of the LLMs has proven to be sufficiently good at the job that the solution would be hired to do, answering legally relevant questions, organizing complex legal documents into addressable frameworks among other tasks. This is just one sector and a few examples, but great enterprise organizations are not trying to deploy generative AI to be mostly okay substitutes for human processes, meaning there is still a lot of work to ensure that there is product market fit for the solutions that leverage these technologies.

There are other fit requirements that have not yet been met.. For example, if you need to leverage these technologies in a cost effective way to bring innovation to market and need high volumes of information processed performantly, then the current capacity limits of many LLMs may become an issue. GPU shortages have led to rationing for hungry LLMs as they try to keep up with demand and leave no user behind more than the next, which creates performance mismatches. A magical answer that needs to be submitted multiple times or that takes a rather long time to complete is not the magical experience that some expect.

Can we trust it? Data Security, Privacy and Regulation

Today, many of the Organizations without the appropriate safeguards can face immediate risks when using AI, as exemplified by the Samsung ChatGPT data leak. The inadvertent inclusion of company data to ChatGPT's training set highlights the need for careful consideration in deploying enterprise applications of ChatGPT and of AI in general. In a KPMG study, 81% of executive respondents considered cybersecurity as a primary concern with AI adoption, while 78% of executives saw data privacy as a primary concern. To avoid compromising privileged data, business leaders adopting AI technology for enterprise applications must establish appropriate guardrails for AI tools and for any data used in training sets.

Fabrication of evidence presents another worrisome risk, including the proliferation of “deepfake” photographs and video imagery. However, as falsified evidence will likely spur greater forensics involvement in legal review, faked photographs can wreak havoc in other areas as well. Consider the impact of a faked photograph of the Pentagon shared on social media earlier this year that caused a drop in stock prices before the error was widely known.

As AI manipulation becomes more sophisticated, businesses across all sectors must do their due diligence to conduct fact checks and verify their sources. In response to the rapid advancement of AI, the White House launched an initiative on “responsible AI”, addressing worker impact, employer use of surveillance technology, and regulatory standards. The evolving international regulatory landscape is something that enterprise adopters will need to keep a close eye on., as governments continue to standards and practices for protecting against anticipated data risks.

Use Cases for Generative AI in Sensitive Industries

Research from KPMG found that 65% of US executives believe generative AI and LLM solutions will have a very high impact on their organization in the next 3-5 years. However, 60% say that we are still potentially a few years away from actual implementation. While fullscale AI implementation may seem like a ways off, investing time and resources into understanding crucial business needs and capabilities will pay dividends in the long run.

Today, we’re already seeing the potential for generative AI to dramatically impact business use cases within highly regulated industries such as finance, healthcare and legal. In finance, AI can improve accuracy in forecasting , reduce errors, lower operational costs, and optimize decision making for organizations able to invest the time and resources for development (Gartner). In healthcare, it can support synthetic data generation for drug development, diagnostics, administrative tasks, (Goldman Sachs) streamlined procurement of medical supplies, and clinical decision-making, with the caveat that trustworthiness and validation are crucial in this context.

In the legal field, lawyers are cautious about AI adoption due to the importance of accuracy and data integrity during legal proceedings (Bloomberg Law). However, in the near future it will give lawyers powerful new capabilities they’ve never had before including comprehensive document parsing, code generation, information extraction, and improved natural language understanding, all of which will augment and optimize various workflows within the legal profession.

Many of the vendors in this space have started to tune their terms and technologies to be able to meet some of the data security and privacy concerns, but not all. There are approaches that companies can take to mitigate these risks as we have where possible, but the maturity of many rushing to participate is still nascent.

AI and the Future of Work - Management and Workflow

According to research from Goldman Sachs, AI could potentially impact as many as 300 million jobs globally over the next five to ten years. While warnings of job replacement may seem dire, historically advancements in technology have led to the creation of new jobs, as saved time and labor free up human talents for more creative endeavors. The use of AI technology could enhance labor productivity and contribute to global GDP growth of up to s 7% over time. In the United States, office and administrative support jobs have the highest automation potential at 46%, followed by 44% for legal work and 37% for tasks in architecture and engineering. However, the impact of AI on jobs will vary across industries.

If we look at jobs that can be impacted, one might suggest that the adoption is going to be as impactful as the management layer that exists to enable these technologies. Not all jobs have the same level of management requirements and as such different roles will be enterprise ready for Generative AI sooner than later. This means that if you are a marketing professional, you can obtain a draft of marketing collateral and then incorporate that into your normal human, word-based editing process before it is submitted for review, publication, etc. This is a standalone human process and requires very little integrated workflow. If you are a financial services firm using AI to analyze risk or provide investment recommendations, is it critical to be able to manage that information, but in provenance, accuracy and distribution (use) which requires generative AI implementation to be auditable in a system that can be easily managed.

There has been much debate around generative AI and its ability to change and improve the cost of legal outcomes. This fails to understand the system (technical and human) that governs the pursuit of outcomes like Justice or legal advice. How generative AI is implemented within the workflow of legal professionals is critical so that it can be trusted, examined and scaled across a diverse set of topics and context.

Conclusion

AI innovation stands at the threshold of immense possibilities, and has the potential to impact a myriad of aspects of society as we know it. While businesses may approach adoption cautiously, navigating risks and regulatory landscapes, the allure of gaining a competitive advantage will drive widespread adoption.

As enterprise enthusiasm continues to skyrocket, it becomes essential to balance excitement with a healthy amount of skepticism and healthy evaluation. Embracing the power of AI and shaping the future requires careful consideration of its limitations, potential risks and ethical implications.

by M. Duane Jones, Hedrick Gardner Kincheloe & Garofalo, LLP

In the past four years, the Court of Appeals has issued two decisions which appear to negatively impact the exclusivity provision of the Industrial Commission.

The exclusivity provision is the provision which grants the Industrial Commission exclusive jurisdiction over workplace injuries. Pursuant to the Workers’ Compensation Act enacted in 1929, all workplace injuries are adjudicated in the Industrial Commission, and the only remedies available to an injured employee are those remedies outlined in the Act.

Our Supreme Court has explained that the Act “seeks to balance competing interests and implement trade-offs between the rights of employees and their employers. It provides for an injured employee's certain and sure recovery without having to prove employer negligence or face affirmative defenses such as contributory negligence and the fellow servant rule. In return the Act limits the amount of recovery available for work-related injuries and removes the employee's right to pursue potentially larger damages awards in civil actions.” Woodson v. Rowland, 407 S.E.2d 222, 227 (1991). The Act allows an employee to receive medical and indemnity benefits in a timely manner, but limits the avenues and extent of that recovery. This is the basis for the compromise.

Historically, any negligence claims brought in our superior courts by an employee against his or her employer for negligence have been dismissed. The only exceptions to this rule are Woodson claims or Pleasant claims, which involve the employer or co-employee committing intentional torts. An employee has been allowed to sue their employer in civil court where the alleged negligence involved intentional misconduct by the employer “knowing it is substantially certain to cause serious injury or death to employees and an employee is injured or killed by that misconduct.” Woodson, 407 S.E.2d at 228 (emphasis added). Likewise, an employee has been allowed to sue their co-employee in civil court for willful, wanton and reckless negligence. Pleasant v. Johnson, 325 S.E.2d 244, 249 (1985).

Recently, however, our Court of Appeals has allowed a claim for medical negligence and a claim for negligent retention or hiring to proceed in superior court without meeting the Woodson or Pleasant standard of an intentional tort. Jackson v. Timken, 828 S.E.2d 740 (2019); Marlow v. TCS, 887 S.E.2d 448 (2023). A similar error is present in both cases. The Court of Appeals has confused the jurisdictional test for the Industrial Commission with the compensability test that the Industrial Commission uses to adjudicate its claims to determine whether the employee is entitled to benefits. Furthermore, the Court has confused these tests with no regard to whether the employer or co-employee committed intentional torts.

By confusing these two tests, and failing to analyze whether an intentional tort exists, the Court of Appeals is essentially establishing that if a particular claim is not compensable under the Act, the Industrial Commission lacks exclusive jurisdiction over the claim, and the employee may be able to proceed in superior courts. This conclusion cannot be the intent of our legislature in enacting the Act, nor is it consistent with a nearly century old collection of case law interpreting the Act.

In order for a claim to be compensable under the Act, an employee must prove all three of the following elements: (1) the injury was caused by an accident; (2) the injury was sustained in the course of the employment; and (3) the injury arose out of the employment. Otherwise, the claim is not compensable, and the employee is not entitled to any benefits.

In Jackson, the Court’s ultimate error is stated in the opening sentence: “Where an injury occurs in the course of one's employment but is not caused by an accident and does not arise out of the employment, that injury does not fall under the Workers’ Compensation Act, and the injured party may not be compensated thereunder.” Jackson, 828 S.E.2d at 741. The Court is correct in stating that an injury which is not caused by an accident or which does not arise out of the employment is not a compensable injury; however, the Court mistakenly concludes the lack of meeting any one of these elements renders the claim outside of the Act.

The Court went on to conclude that if “the Industrial Commission lacks exclusive jurisdiction to hear a claim that occurs in the course of one's employment, a trial court does not err in asserting subject matter jurisdiction over that claim.” Id. The error of this reasoning is the Industrial Commission should never lack exclusive jurisdiction over an injury that occurs in the course of one’s employment, except under a Woodson or Pleasant exception.

Similarly, in Marlow, our Court of Appeals stated that an action comes within the Act if all three elements are met. Marlow, 887 S.E.2d at 453. Again, this is not a proper application of the test. Coming within the Act and being compensable pursuant to the Act are not the same thing; yet, like Jackson, the Court implicitly concluded they are the same thing. The Marlow court acknowledged that the employer conceded elements one and two were met (the injury occurred as a result of an accident and in the course and scope of employment), but since the Court of Appeals determined the injury did not arise out of the employment, the Court determined there was no exclusive jurisdiction in the Industrial Commission, and the civil suit could proceed in superior court.

However, once the Court determined the injury was sustained in the course of employment, the Court should have determined the Industrial Commission had exclusive jurisdiction, subject only to a Woodson or Pleasant exception. By combining the jurisdictional test with the compensability test, the Court of Appeals has ignored the any number of circumstances where an employee may be injured at work but is nonetheless not entitled to benefits under the Act.

While the Court of Appeals in both cases referred to the exclusivity provision, the Court glossed over the meaning of the exclusivity provision and restricted the analysis of jurisdiction solely to the compensability question of whether or not the incident arose out of the employment. In doing so, the Court of Appeals is allowing the trial court to answer a question that has been reserved for the Industrial Commission to answer.

If the compensability test is to be used to determine the jurisdiction of the Industrial Commission, then all three elements must be answered in the negative for the matter to be held to be outside of the Industrial Commission’s exclusive jurisdiction. Any other combination of negative or affirmative elements lands the claim within the exclusive jurisdiction of the Industrial Commission, and the compensability of the claim is to be determined by the Industrial Commission. Otherwise, the balance struck by the Act is replaced with imbalance, and the employer has lost all the benefits it traded, specifically an employee being prevented from pursuing civil actions, in exchange for an employee not having to prove negligence or face affirmative defenses.

Ten Tips for New Lawyers
Will Graebe, Claims Counsel & Relationship Manager
Lawyers Mutual Liability Insurance Company of NC

Whether you are new to the practice of law or a seasoned practitioner, these tips will aid you in managing your day-to-day practice, managing relationships with clients, colleagues, family, and yourself.  Here we highlight key tips from Will from the excellent paper he provided for a recent webinar.  Download the complete paper here.

Ten Tips for New Lawyers from Day One

1. Documenting Your Relationship with Clients and Prospective Clients  Documenting your relationship with a client is one of the most effective ways to avoid malpractice claims and ethics complaints. A good engagement letter can be the difference between a long, drawn-out legal malpractice case versus a simple one-page denial letter. When an arrangement or relationship between the lawyer and client is not reduced to writing, the lawyer and client may have very different recollections or understandings of what the lawyer was hired to do.

2. Avoid Red Flag Clients   Another important risk management tool you have at your disposal is client selection. Good client selection will lead to interesting work, job satisfaction and revenue for your firm. Bad client selection can lead to malpractice claims, ethics complaints and billing nightmares. Red flag clients are far more likely to make claims and file grievances against their lawyers. 

3. Dockets, Deadlines and Procrastination  The most frequent cause of legal malpractice claims is missed deadlines. These claims can arise from missed statutes of limitation, late tax filings, missed regulatory deadlines, late responses to discovery requests, or any other missed deadline that is either fatal to a client’s claim or causes some damage to the client. The reasons why lawyers miss deadlines are varied. Sometimes, the lawyer just doesn’t know the statute of limitations for the claim. This often happens where a lawyer attempts to handle an out-of-state matter and doesn’t realize the other state has a different statute of limitations than North Carolina for a particular matter. Other times, the lawyer fails to calendar the deadline or enters the wrong date. Most of these claims can be avoided with a good docket control and calendaring system.

4. Own Your Mistakes But Don’t Fall on Your Sword  If you practice law long enough, you are bound to make a mistake while representing a client. Some mistakes are harmless and immaterial. Other mistakes may be fatal to your client’s case. In between those two extremes are mistakes that cause your client to suffer some negative consequences or create the possibility of negative consequences in the future. What is required of you when you make a mistake depends on the nature and severity of the error. Failure to make appropriate and timely disclosure of errors can result in adverse disciplinary, malpractice and coverage consequences.

5. Take Care of Yourself  As lawyers, we don’t like to talk about our problems. We like to talk about other people’s problems. We’re really good at the latter and really bad at the former. We want people to think that we have it all together, that we don’t have any problems. If we are struggling with something emotionally or mentally, we certainly don’t need help from anyone else. What would people think? Would my adversaries think I’m weak and take advantage of that weakness? Would my clients lose confidence in my ability to handle their matter? This mentality, combined with the daily stress and pressure of practicing law, has resulted in high levels of anxiety, depression and alcohol abuse in our profession.

Well-being and happiness are not prizes at the end of a road. They are not something that we strive for and get and then sit back and enjoy. Well-being is a journey—a lifestyle. It’s about designing a life that creates opportunities for joy and purpose and meaning. It’s about creating a state of mind that, when bad things happen, we can be present with that experience and then move forward. Mental health is much like physical health. To have either, we must be active participants. Sure, there is a genetic component to both physical and mental health. But neuroscience has shown us that we can rewire our brains for improved well-being. We have a choice. We can structure our lives to include some of the practices discussed above or we can let our genetics and circumstances limit what is possible.

6. Communications and Client Relationships  What do you think is the number one complaint clients have about their lawyers? It is not lack of knowledge or competence. It is not even dissatisfaction with the outcome of a matter or the cost to the client. A BTI Consulting Group Survey indicates that failure to keep a client adequately informed is far and above the number one complaint clients have.

Poor communication not only results in loss of business, but also increases the likelihood of malpractice claims, ethics complaints and poor reviews. Clients who feel seen and heard by their lawyers are far less likely to make such complaints. 

7. Don’t Dabble Rule 1.1 of the Rules of Professional Conduct prohibits a lawyer from handling “a legal matter that the lawyer knows or should know he or she is not competent to handle without associating with a lawyer who is competent to handle the matter.” Handling matters for which you are not competent is known as dabbling, and it is one of the leading causes of malpractice claims.

For new lawyers most new matters will involve some level of dabbling. Law school training may be sufficient for certain matters but does not provide the practical experience for handling many practice areas. That can only come from experience. If you’re in a law firm with other attorneys, you can rely on the experience of more experienced attorneys in the firm to mentor you through a case or matter. If you’re solo, you must find another solution. Here are a few suggestions for new lawyers: 

1. Associating Counsel

2. Educate Yourself 

3. Use the Resources of Your Bar Association or Specific Practice Area Associations

4. Get Involved in a Mentoring Program

5. Call on Lawyers Mutual Claims Attorneys

8. Watch for and Avoid Conflicts of Interest  Conflicts of interest account for many legal malpractice claims and ethics complaints. Sometimes, conflicts are obvious. Other times, a conflict can be subtle or might only become evident well into a representation. Every firm, regardless of size, should have conflict of interest policies and procedures in place to identify conflicts of interest before accepting representation. However, even with a conflict checking system in place, lawyers must still exercise good judgment in assessing conflicts and potential conflicts. Additionally, it is essential to understand the conflicts rules under Rules 1.7, 1.8 and 1.9 of the Rules of Professional Conduct.

9. Take Time to Investigate and Develop Facts As law students, we spend three years learning about the law. We learn how to research cases, statutes and regulations and apply what we find to a given set of facts. However, we are taught very little about how to investigate the facts of a case. A frequent mistake made by new lawyers is failing to fully investigate, collect and develop the facts of a new matter or case. This is true in both litigation and transactional matters. Developing and investigating facts can be tedious and sometimes unpleasant. You may have to speak with parties or witnesses who really don’t want to talk to you. Or you might have a client who needs some prodding to give you all the facts. You must be persistent. Cases are often won or lost on a particular fact that would not have been discovered but for the lawyer’s persistence in digging for and collecting the facts. It can also mean the difference between filing a case within the statute of limitations or missing the statute. 

10. Focus Less on Outcomes and More on the Journey Hopefully, you will have a long and fruitful career in the law. You will have good days and bad days. You will win some cases and lose some cases. You will have happy clients and disgruntled clients. Even the best lawyers lose sometimes and have unhappy clients during their career. Does that mean that they have failed? If you measure success by winning and pleasing others, then, yes, they have failed. Living life by this measure will create a life full of anxiety and disappointment. If your happiness and satisfaction are dependent on outcomes being what you need them to be, you will frequently come up short. Plus, sometimes what we see as bad ends up turning out to be good.

But what if you measured success by something other than outcomes? What if you measured success by the actions that you took along the way? You will soon learn that, no matter what you do, you can lose a case or disappoint a client. The only thing that you have any real control over is your own actions. Have you zealously represented your client’s interests to the best of your ability? Have you acted ethically? If so, you can be pleased with whatever the outcome is. Practicing law is no different than anything else in life. We have far less control over results than we think we do. So, let go of the need for control and outcomes. Work hard and enjoy the satisfaction of knowing that you did your best. And if there are times when you don’t give it your best, give yourself some grace. Nobody is perfect, even though our clients sometimes think we should be.

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Managing Divergent Opinions in the Life Care Plan
Betsy Keesler, BSN, RN, CLCP
InQuis Global

Life care plans are often used in the forensic setting for personal injury cases. They serve as both a plan for future care and cost estimate for such needs. The subject of a life care plan is referred to as an evaluee. The life care plan is an educational tool for the evaluee and the trier of fact, written in understandable language that can be readily duplicated and realistically implemented.

The most widely accepted definition of a life care plan is as follows:

“The life care plan is a dynamic document based upon published standards of practice, comprehensive assessment, data analysis, and research, which provides an organized, concise plan for current and future needs with associated costs for individuals who have experienced catastrophic injury or have chronic health care needs.” (International Conference on Life Care Planning and the International Academy of Life Care Planners. Adopted 1998, April.)

The recommended services and items in a life care plan must have a solid medical and health care foundation. The life care plan outlines provisions to meet the biopsychosocial needs of the evaluee. The life care plan requires the input and expertise of multiple disciplines coming together to create one comprehensive plan tailored to the evaluee’s individualized needs. As such, the foundation of the life care plan is described as transdisciplinary in nature.

In the forensic arena, there may be conflicting treatment opinions expressed throughout the course of life care plan development, as well as after the plan’s formal release. The life care planning Consensus and Majority Statements (2018) inform the life care planner of an obligation to “methodically handle divergent opinions.” (Consensus Statement #65). The Consensus Statements are derived from 17 years of past life care planning summits, with input from life care planning experts. They are a key part of life care planning methodology. Therefore, they provide reliable and trustworthy guidance on ways to compare recommendations.

In addition, life care planning Consensus Statement #84 states the following:

“Review of evidence-based research, review of clinical practice guidelines, medical records, medical and multidisciplinary consultation and evaluation/assessment of evaluee/family are recognized as best practice sources that provide foundation for life care plans.”

On closer inspection, there are typically five sources of information to support expert medical opinion:

• The evaluee’s medical record
• Evaluation/assessment of the evaluee/family
• Consultation with treating and/or evaluating health care providers
• Professional clinical practice guidelines
• Evidence-based peer reviewed literature

A thorough review of medical records is one starting point for gathering relevant health care data. Medical records represent the factual past history of treatments already received and, sometimes, the projected future health care needs as recommended by the treating provider(s). The medical records unveil which treatments were tolerated by the evaluee and led to favorable outcomes. Likewise, they also reveal which ones were considered or tried, but were not feasible to conduct. Also, medical records serve as a cross reference to life care planning recommendations.

When permitted, the life care planner should conduct a formal evaluation and assessment of the evaluee. Likewise, a forensic medical expert, who may be relied upon to provide medical foundation, may also perform an in-person or telehealth medical evaluation as the basis for recommendations. The life care planner will likely need to speak with the evaluee’s treating and/or evaluating health care providers. With the analysis of medical records, the life care planner’s assessment of the evaluee, review of clinical practice guidelines, research and consultation with the treating and/or evaluating health care provider(s), there should be adequate medical foundation and individualized data established to begin formulating a life care plan.

However, sometimes the forensic medical expert will rely solely upon medical treatment and diagnostic records, sans personal evaluation, to formulate an expert opinion regarding the future health care needs for the evaluee. As such, the medical expert opinion(s) issued may not agree with the current treatment plan in place, setting up a scenario for divergent medical opinions.

Finally, the review and analysis of clinical guidelines and peer-reviewed literature is essential. Clinical practice guidelines are the gold standard outlining best practice. These statements, usually developed by medical organizations and academies, are intended to provide sound rationale to guide effective clinical treatments for individuals. In essence, clinical practice guidelines define the how to and the why in health care practice. Also, peer-reviewed literature is important to the life care plan. It represents expert scholarly research, work or ideas that have been critically scrutinized by other experts of the same field prior to acceptance for publication. Such a peer-reviewed process ensures the scientific quality and validity of the research.

Regardless of whether the life care planner is creating or reviewing a plan, it is incumbent upon the individual to indicate where divergent medical opinions lie and how he/she plans to deal with the range of findings. Specific areas to consider when evaluating medical opinions include:

• Is the rendering expert consultant and/or treater acting within his/her scope of practice?
• Do the medical records give any indication of what treatments provided were beneficial and which ones were not suitable for the evaluee?
• Do the medical records indicate what the treating provider was planning for the future?
• Do the medical records give any indications the evaluee has reached maximum medical improvement and whether future care consists of conservative medical management moving forward or not?
• Are the future care recommendations individualized for the evaluee?
• Are the recommendations reasonable and attainable?
• Can the evaluee actually implement the recommendations from where he/she lives?
• Has the evaluee made any statements as to whether or not he/she intends to pursue the recommendations?
• Do the clinical guidelines and standards of practice support the same recommendations given by the medical and/or health care professionals?
• What medical information/opinions are discovered in deposition testimony?
• Within deposition testimony, have any parties contradicted themselves or changed their opinions regarding future care needs?

Consensus statement #75 asserts, “Life Care planning products and processes shall be transparent and consistent.” The life care planner, as an educator for the evaluee and the jury, should acknowledge when divergent opinions and contradictions exist. Such differing recommendations/opinions may dictate the need to provide more than one plan option in order to develop a reasonable, relevant, and appropriate life care plan individualized to the evaluee. If one recommendation is chosen over another, the life care planner should be prepared to explain the rationale for making such a decision. Moreover, the rational should follow accepted methodology, standards and consensus while being fully transparent and unbiased.

In closing, it is the life care planner’s responsibility to present a life care plan containing feasible treatment and care options, in a transparent and understandable way, using the proper application of peer-reviewed methodology, standards and consensus. In the forensic arena, the life care planning process should aid the trier of fact in making informed and appropriate decisions.

Resources

Cary, John, et al., 2023. “A Walk Through from Referral to Testimony: Methodology & Admissibility.” Journal of Life Care Planning, 21 (1), 69-84.

Deutsch, Paul M., “Tenants of Life Care Planning.” Paul M. Deutsch & Associates, P.A. www.paulmdeutsch.com/LCP-tenets-of-life-care-planning.htm

International Association of Rehabilitation Professionals & International Academy of Life Care Planners, 05/07/2019, “Transdisciplinary Position Statement.”

International Association of Rehabilitation Professionals & International Academy of Life Care Planners, April 2022, “Code of Ethics.”

Johnson, C; Pomeranz, J. & Stetten, N. 2018. “Consensus and Majority Statements Derived from Life Care Planning Summits Held in 2000, 2002, 2004, 2006, 2008, 2010, 2012, 2015 and 2017 and updated via Delphi Study in 2018.” Journal of Life Care Planning, 16 (4), 15-18.

Standards of Practice for Life Care Planners, Fourth Edition. 2022. International Association of Rehabilitation Professionals & International Academy of Life Care Planners.

Weed R. O., Berens D.E., (editors). 2018. Life Care Planning and Case Management Handbook. (4th ed.). New York, NY: Routledge.

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Betsy Keesler earned a Diploma in Nursing from Presbyterian Hospital School of Nursing in 1987 where she was awarded Clinical Excellence in Pediatric Nursing upon graduation. Ms. Keesler subsequently completed a Bachelor of Science in Nursing during 1990 with receipt of High Distinction through George Mason University. In 2021, she completed 120-hours of post graduate training for life care planning through the Institute for Rehabilitation Education and Training (IRET). Ms. Keesler is a registered nurse (RN) and a certified life care planner (CLCP). She has worked in the hospital setting as a registered nurse (RN) for Pediatric and Neonatal Intensive Care Units and within the outpatient medical setting as a community health nurse. As a community health nurse, she coordinated and provided care for a large and diverse patient population within the school system. Also, Ms. Keesler was a nursing manager for the Adult Evaluation and Review Service within the Maryland Department of Health. Her clinical work through the public health department involved the coordination of medical and nursing services to support ongoing safe community living for persons with catastrophic diagnoses and chronic health conditions. Ms. Keesler has held numerous leadership positions throughout her nursing career and was the recipient of the Maryland Nurse of the Year award during 2009. She currently works full-time as a life care planner with Inquis Global, LLC.