The 10 O'Clock
Appeal bonds
If anyone else in this office ever expresses an interest in appeals, they should be aware of how appeal bonds work.
Appeals from county courts are addressed by CRCP 411. An plaintiff appellant is required to post a bond to cover the costs of the appeal. If a defendant appeals, he is required to post a bond to cover the amount of the appeal and also the judgment. If a plaintiff loses a case and appeal an award of costs/fees, the plaintiff would have to include that cost amount in its appeal bond. All of this, however, is apparently subject to the trial court's discretion. The court can waive the bond requirement and can set the amount at less than the judgment. Once the appeal bond has been posted and approved by the trial court, or once the court has waived the bond requirement the execution on the judgment is stayed.
Appeals from District court are governed by the appellate rules. CAR 7 and 8 govern appeal bonds and stays. The appellant has to post a cost bond of $250 to proceed with the appeal and a separate supersedeas bond (generallythe amount of the judgement) is required to stay execution. The court again has discretion in both of these matters. The stay of exectuion is not automatic, like it is in county court. The appellant must move the court for a stay under CAR8.
Wednesday, November 22, 2006
Tuesday, November 14, 2006
Under 10-4-701 the self-insurer is liable for up to $50K for medical expenses and $50K for rehabilitation expenses per injured person.
There was an amendment in 1996, which provides that if you exceed the $50K for the meds, you can use any remaining portion of the rehab. If you exceed the $50K for the rehab, however, you cannot use unspent medical. Thus, you need to be wary of defendants trying to portray your expenses at rehab and capping out at $50K. Also defense attorneys may cite law that pre-dates the 1996 amendment to try and cap out our med recovery at $50K.
What is rehab and what is medical? That is gray area with cases all across the board. If you want to lump your expenses into medical you can quote Dean v. Allstate, 878 F.Supp 1397 (1993) which provides that post-surgery or post-injury recuperation treatment such as Physical Therapy would be medical and OT, speech therapy and other training would be rehab.
There was an amendment in 1996, which provides that if you exceed the $50K for the meds, you can use any remaining portion of the rehab. If you exceed the $50K for the rehab, however, you cannot use unspent medical. Thus, you need to be wary of defendants trying to portray your expenses at rehab and capping out at $50K. Also defense attorneys may cite law that pre-dates the 1996 amendment to try and cap out our med recovery at $50K.
What is rehab and what is medical? That is gray area with cases all across the board. If you want to lump your expenses into medical you can quote Dean v. Allstate, 878 F.Supp 1397 (1993) which provides that post-surgery or post-injury recuperation treatment such as Physical Therapy would be medical and OT, speech therapy and other training would be rehab.
Wednesday, November 01, 2006
Private Lessons on Direct
Today we attended the New Trial Lawyer Intervention hosted by County Judge. It turns out County Judge mentors a lot of new attorneys; it’s kind of his thing. He particularly reaches out to women and minorities. Fortunately, we have one of those in our firm, so we all rode her coattails into Courtroom X this afternoon for a lesson on direct examination. County Judge gave us the following advice:
1. Primarily use journalistic questions: who, what, when, why, where, how. If your mouth is not making a ‘w’ sound, it’s probably not a good question.
2. Always use open-ended questions (except when laying foundation).
3. Maintain control over the witness by using focus tools when the witness starts to stray, e.g. “tell us more about . . .” “show me . . .” “describe . . .”
4. Transitions help focus a line of questioning on one particular subject. Examples:
a. “I want to talk to you about your experience . . .”
b. The loop back: “You said there was a red Ford parked on the road; can you describe the car in front of it? Behind it?”
5. The focus of a direct examination should be on the witness, not the examiner. This is in contrast to cross examination, when the focus is on the questions the examiner is propounding.
6. Only ask questions with a goal in mind; do not ask superfluous questions.
7. When laying a foundation, it’s okay to ask leading questions. For example: “Do you watch Grey’s Anatomy?” I’m laying a foundation for questions about an episode of GA.
Today we attended the New Trial Lawyer Intervention hosted by County Judge. It turns out County Judge mentors a lot of new attorneys; it’s kind of his thing. He particularly reaches out to women and minorities. Fortunately, we have one of those in our firm, so we all rode her coattails into Courtroom X this afternoon for a lesson on direct examination. County Judge gave us the following advice:
1. Primarily use journalistic questions: who, what, when, why, where, how. If your mouth is not making a ‘w’ sound, it’s probably not a good question.
2. Always use open-ended questions (except when laying foundation).
3. Maintain control over the witness by using focus tools when the witness starts to stray, e.g. “tell us more about . . .” “show me . . .” “describe . . .”
4. Transitions help focus a line of questioning on one particular subject. Examples:
a. “I want to talk to you about your experience . . .”
b. The loop back: “You said there was a red Ford parked on the road; can you describe the car in front of it? Behind it?”
5. The focus of a direct examination should be on the witness, not the examiner. This is in contrast to cross examination, when the focus is on the questions the examiner is propounding.
6. Only ask questions with a goal in mind; do not ask superfluous questions.
7. When laying a foundation, it’s okay to ask leading questions. For example: “Do you watch Grey’s Anatomy?” I’m laying a foundation for questions about an episode of GA.
Monday, October 30, 2006
When propounding discovery you should avoid asking for "the number of times", because it's easy for the responding party to reasonably state that they don't know the number. Instead ask for "the approximate number of times". That should force them to provide at least an estimation or face a motion to compel.
Tuesday, September 19, 2006
Wednesday, September 06, 2006
Driving Mr. Daisy
I came up with a new game today: any time you drive somewhere with the boss, count his traffic violations. To make it fair, you should then divide by the amount of time you were in the car (not including post-accident time, should the surrounding traffic fail to realize that your boss is within striking range). Whoever comes up with the highest coefficient (and lives), wins.
I came up with a new game today: any time you drive somewhere with the boss, count his traffic violations. To make it fair, you should then divide by the amount of time you were in the car (not including post-accident time, should the surrounding traffic fail to realize that your boss is within striking range). Whoever comes up with the highest coefficient (and lives), wins.
Thursday, August 24, 2006
NO TALKING, PLEASE
Another typical day at Capital City court:
Crazy-eyed Lady: I don't owe nobody nothin'!! I didn't never got served nothin', 'cept maybe my twin sister got served 'stead a' me and now you think you can take my money! UH-UH!!! You can go to hell, that's what you can do.
Quiet Background Noise, Esq.: Ma'am, the judge already issued a judg--
CEL: YOU SHUT UP!! DON'T YOU NEVER ADDRESS ME AGAIN, YOU BLONDE BITCH!! I GOT RIGHTS!
QBNE: . . . but . . . I, uh . . . uh . . . that didn't--
Party Boy, Esq.: Ma'am, I'm afraid the judge already issued a judgment against you and then ruled against your motion, so there won't be a hearing this morning, after all. Sorry.
CEL: WHAT?! I don't think so, you little snot-nosed punk. I got rights. I got rights to have my day in court. Ima get me a lawyah. Ima sue you AND you. Ima sue the little diapers off both yo' little punkasses. DON'T YOU OPEN YO' MOUTH, BLONDIE!!
PBE: Ma'am, we are not the--
CEL: [Stomping away] SONOFABITCH!!
The moral of the story is: don't be the crazy-eyed lady, because people will just blog unflattering things about you.
Another typical day at Capital City court:
Crazy-eyed Lady: I don't owe nobody nothin'!! I didn't never got served nothin', 'cept maybe my twin sister got served 'stead a' me and now you think you can take my money! UH-UH!!! You can go to hell, that's what you can do.
Quiet Background Noise, Esq.: Ma'am, the judge already issued a judg--
CEL: YOU SHUT UP!! DON'T YOU NEVER ADDRESS ME AGAIN, YOU BLONDE BITCH!! I GOT RIGHTS!
QBNE: . . . but . . . I, uh . . . uh . . . that didn't--
Party Boy, Esq.: Ma'am, I'm afraid the judge already issued a judgment against you and then ruled against your motion, so there won't be a hearing this morning, after all. Sorry.
CEL: WHAT?! I don't think so, you little snot-nosed punk. I got rights. I got rights to have my day in court. Ima get me a lawyah. Ima sue you AND you. Ima sue the little diapers off both yo' little punkasses. DON'T YOU OPEN YO' MOUTH, BLONDIE!!
PBE: Ma'am, we are not the--
CEL: [Stomping away] SONOFABITCH!!
The moral of the story is: don't be the crazy-eyed lady, because people will just blog unflattering things about you.
Wednesday, August 16, 2006
COMMON RUSE
Lady and gentlemen, let us engage ourselves for a moment in a discussion on the Common Fund Doctrine. You will, at some point in your career as a small subrogation firm attorney, encounter an insured's attorney who wants some or all of your money. The opposing dirt bag will tell you that, while the defendant's insurance company has, indeed, paid the insured's counsel for the very same damages your client already covered, you have done nothing to earn this money and (s)he has done everything. (S)he has earned it, you have not. In fact, were it not for his/her tenacious, unrelenting negotiations with the opposing insurance company, there would be no money at all, and, by the way, his/her client has not been "made whole." Then (s)he will ask you if you have even heard of the Common Fund Doctrine, and don't you agree it applies in Colorado?
You may pause, your words may do a little stutter step, you may have to restart the engine a couple times, and then, as the defense mechanisms start to kick in, you will try to bullshit your way around a 'yes.' You will try to save face by offering some excuse to "get back to" him about that, but it will be too late. You are officially a chump.
However, thanks to your senior associate, you will never have to live out that kind of humiliation. Thanks to your senior associate, you will be able to tell your insured's counsel where (s)he can go and where (s)he can stick the Common Fund Doctrine. It is really quite simple. I won’t tell you that the Common Fund Doctrine doesn't apply in Colorado, but it (usually) doesn't apply in our cases.
The idea behind the common fund doctrine is that the insured's attorney shouldn't have to work for free. If he works out a deal for his client with the defendant's insurance company as to damages not covered by our client, the insurer is also going to want to make certain all other claims relating to the incident are released at the same time so that they know exactly how much money is in the pot and they don't wind up double-paying. The insured's attorney may then request the maximum amount the defendant's insurer is willing to pay with the understanding that the subro claim---if one is ever even asserted--will be paid from that fund. If no subro claim is ever asserted, the insured and his/her counsel are doing okay. If it such a claim is asserted, the insured’s counsel makes the argument that, but for his/her work on the case, there would be no money at all because our client certainly didn't nut up and bring a claim or locate the defendant. It’s a basic unjust enrichment claim. And that's basically what the Common Fund Doctrine is: that the insured's attorney, who did the work to procure the money, should get paid for that work. Seems to make sense.
But now suppose you are the client. You never hired this yahoo to represent your claim, but here (s)he is telling you that you have to take cents on the dollar because (s)he has already settled everything out for you. Remember, (s)he doesn't work for free. But shouldn't you be able to hire whomever you want? Shouldn't you get to decide whether or not to accept less than what you paid on behalf of your insured?
The answer is Yes, of course. But you have to actively preserve your subro rights; there’s no sitting back and letting someone else do all the work for you—at least, not without notifying them. Specifically, you (remember, you're still pretending to be the insured) need to reasonably (and timely) notify the defendant's insurance company and the insured of your subro claim and your intent to pursue it. If you do that (and that is a regular part of our clients' claim pursuit), any settlement between the defendant's insurance company and your insured is made subject to your claim. Your insured's counsel can whine all he wants about the Common Fund and making whole (we'll save that issue for a future entry. Maybe), but, as long as proper notice is given, (s)he can pretty much suck it.
Lady and gentlemen, let us engage ourselves for a moment in a discussion on the Common Fund Doctrine. You will, at some point in your career as a small subrogation firm attorney, encounter an insured's attorney who wants some or all of your money. The opposing dirt bag will tell you that, while the defendant's insurance company has, indeed, paid the insured's counsel for the very same damages your client already covered, you have done nothing to earn this money and (s)he has done everything. (S)he has earned it, you have not. In fact, were it not for his/her tenacious, unrelenting negotiations with the opposing insurance company, there would be no money at all, and, by the way, his/her client has not been "made whole." Then (s)he will ask you if you have even heard of the Common Fund Doctrine, and don't you agree it applies in Colorado?
You may pause, your words may do a little stutter step, you may have to restart the engine a couple times, and then, as the defense mechanisms start to kick in, you will try to bullshit your way around a 'yes.' You will try to save face by offering some excuse to "get back to" him about that, but it will be too late. You are officially a chump.
However, thanks to your senior associate, you will never have to live out that kind of humiliation. Thanks to your senior associate, you will be able to tell your insured's counsel where (s)he can go and where (s)he can stick the Common Fund Doctrine. It is really quite simple. I won’t tell you that the Common Fund Doctrine doesn't apply in Colorado, but it (usually) doesn't apply in our cases.
The idea behind the common fund doctrine is that the insured's attorney shouldn't have to work for free. If he works out a deal for his client with the defendant's insurance company as to damages not covered by our client, the insurer is also going to want to make certain all other claims relating to the incident are released at the same time so that they know exactly how much money is in the pot and they don't wind up double-paying. The insured's attorney may then request the maximum amount the defendant's insurer is willing to pay with the understanding that the subro claim---if one is ever even asserted--will be paid from that fund. If no subro claim is ever asserted, the insured and his/her counsel are doing okay. If it such a claim is asserted, the insured’s counsel makes the argument that, but for his/her work on the case, there would be no money at all because our client certainly didn't nut up and bring a claim or locate the defendant. It’s a basic unjust enrichment claim. And that's basically what the Common Fund Doctrine is: that the insured's attorney, who did the work to procure the money, should get paid for that work. Seems to make sense.
But now suppose you are the client. You never hired this yahoo to represent your claim, but here (s)he is telling you that you have to take cents on the dollar because (s)he has already settled everything out for you. Remember, (s)he doesn't work for free. But shouldn't you be able to hire whomever you want? Shouldn't you get to decide whether or not to accept less than what you paid on behalf of your insured?
The answer is Yes, of course. But you have to actively preserve your subro rights; there’s no sitting back and letting someone else do all the work for you—at least, not without notifying them. Specifically, you (remember, you're still pretending to be the insured) need to reasonably (and timely) notify the defendant's insurance company and the insured of your subro claim and your intent to pursue it. If you do that (and that is a regular part of our clients' claim pursuit), any settlement between the defendant's insurance company and your insured is made subject to your claim. Your insured's counsel can whine all he wants about the Common Fund and making whole (we'll save that issue for a future entry. Maybe), but, as long as proper notice is given, (s)he can pretty much suck it.
Monday, August 14, 2006
The 10 O'Clock
Today I learned under 13-21-402, you can't commence a product liability action against a seller unless the seller is also the manufacturer. However, if jurisdiction cant be obtained over a manufacturer of a product or part, then the manufacturer's principal distributor shall be deemed the manufacturer.
Today I learned under 13-21-402, you can't commence a product liability action against a seller unless the seller is also the manufacturer. However, if jurisdiction cant be obtained over a manufacturer of a product or part, then the manufacturer's principal distributor shall be deemed the manufacturer.
Hang the Jury
Please note that, when your boss tells you the hallmark of a skilled subrogation attorney is the ability to request a jury, and you laugh, and he looks you dead in the eye and tells you he's serious, and continues to drill that stare into you until you flush and look away and mumble an awkward assent, what he really means is that we never EVER do jury trials if we can help it.
Please note that, when your boss tells you the hallmark of a skilled subrogation attorney is the ability to request a jury, and you laugh, and he looks you dead in the eye and tells you he's serious, and continues to drill that stare into you until you flush and look away and mumble an awkward assent, what he really means is that we never EVER do jury trials if we can help it.
Friday, August 11, 2006
The Statute of Repose
Today we learned about the statute of repose. For those of you who are not familiar with it, the SOR is the time period after which a manufacturer of a product can no longer ebe held liable for the performance of the product. It's similar to the statute of limitations. For more information and some good examples of the SOR, see the page from which I stole that definition: http://www.nam.org/s_nam/doc1.asp?CID=453&DID=225290.
The idea behind the SOR is that, just because an entity manufactured a product, doesn't mean that they are liable for the performance forever. At some point, all products will break down. For American cars, that point is approximately 2 days after the warranty runs. Other products vary. But nothing lasts forever, so the manufacturer should not be on the hook forever. The trick is figuring out what the SOR is for a given product. The product in which we're interested is a water filtration system. Anybody know anything about SORs for water filtration systems?
Today we learned about the statute of repose. For those of you who are not familiar with it, the SOR is the time period after which a manufacturer of a product can no longer ebe held liable for the performance of the product. It's similar to the statute of limitations. For more information and some good examples of the SOR, see the page from which I stole that definition: http://www.nam.org/s_nam/doc1.asp?CID=453&DID=225290.
The idea behind the SOR is that, just because an entity manufactured a product, doesn't mean that they are liable for the performance forever. At some point, all products will break down. For American cars, that point is approximately 2 days after the warranty runs. Other products vary. But nothing lasts forever, so the manufacturer should not be on the hook forever. The trick is figuring out what the SOR is for a given product. The product in which we're interested is a water filtration system. Anybody know anything about SORs for water filtration systems?
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