Airplane Crash Case – Use of Technology

 

Today’s shared story is from an attorney who chooses to remain anonymous.

He tells of a seminar he went to a number of years ago dealing with the uses of technology in the courtroom.

The presenter told of a case which involved an airplane crash in the Everglades. A 20 seater had gone down. As is often the case, one of the questions was whether the cause was pilot error or equipment failure.

To prove their case, counsel for the insurance company actually acquired a 20 seat airplane the same as the one that had gone down. And they crashed it! The plane had crash dummies in all seats which had been occupied at the time of the accident. Every observational and analytical device available at the time was used to record what happened, including damage to the plane but especially the injuries to the crew and passengers: How bones (skulls, necks, pelvises, arms, legs) were broken, how heads were impacted, passengers’ faces thrown into seats in front of them and so on. The idea was to show that the equipment did not fail; that the crash was caused by pilot error. Of course, films, inside and out were part of the project.

When all data from all the recording equipment was fully analyzed the exercise supported the insurance company’s case. But they did not use it! Reason: The films, pictures, descriptions and data painted so horrific a scenario that they knew the jury would be turned against them. They could not use their extremely expensive re-enactment of the accident.

Moral: Consider all consequences thoroughly before using technology to support your case.

 

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Eric Gros-Dubois’ Experience

Bill:

I think it is important that the parties all have an opportunity to meet in the same room, even if only for the beginning for a joint presentation of the cases.  It is often the best and first opportunity for the parties to see each other since the lawsuits were filed – their first chance to speak directly to each other.  So the reason I tell you this is because this was always my expectation of mediation.  Upon arriving at a mediation recently, however, the mediator kept us separated from beginning to end.  When I objected (I had even prepared a presentation of our claims with a powerpoint), the mediator simply told me that she didn’t do things that way.  Knowing what I know now, I should have asked (what I thought was an obvious question) if the parties would have an opportunity to meet under her mediation format.  Losing that opportunity reduced the efficacy of the experience for all of us.

Eric
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Tom Hyde’s Shared Story

Dear Bill,
Here is my best deposition story.
When taking the deposition of my client, opposing counsel began badgering my client.  He raised his voice.  He slapped his hand on the table.  He pointed his finger in my client’s face.  I had enough so I said, ” Let the record reflect that Mr. (opposing counsel) has raised his voice.  Let the record reflect that Mr. (opposing counsel) has slapped his hand on the table.  Let the record reflect that Mr. (opposing counsel) has pointed his finger in my client’s face.”  I then told him on the record that my client was here to answer all of his questions, but if he continued to badger my client we were leaving.
To my surprise, he changed completely.  He did not apologize, but he became very polite, even friendly.  At the end of the deposition we shook hands and departed as friends.
Tom
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Steve Thompson’s Shared Story

Bill:

Here’s my story regarding humor at mediation:

I had a client who attended depositions, hearings and a mediation with me.  He always drank “Smart Water” and frequently brought an extra bottle.

On multiple occasions he would offer the extra bottle to opposing counsel.  The other lawyer didn’t get it until at mediation the mediator asked after opening statements if the clients wanted to speak directly to add anything.  My client piped up that although he had offered Smart Water to the other lawyer he either wouldn’t drink it or it wasn’t working.

Fortunately, this broke the ice and we were able to reach a settlement!

 

 

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Gary Kollin Shared Story

My story.

When I was retained, I had a discussion with my client regarding his appearance. I told him that there were only a few times he would need to appear in the presence of the opposing party and opposing counsel: the client’s deposition, mediation, trial, and perhaps the depositions of the opposing party and any witnesses. I further explained that these times provide the opposing side the opportunity to size him up should the case proceed to trial.

My client, a male, wore big, gaudy and faux diamond earrings at our initial meeting. They were obviously zircons. I suggested to him that he should not wear them at the appearances. He understood and agreed. I also told him that he should dress appropriately at the appearances. I told him a tie and jacket were not necessary and we would discuss the clothes he was to wear at trial should one occur.

Needless to say he dressed appropriately at deposition and I made no comment. He showed up at mediation in a t-shirt, shorts, sneakers without socks and a week’s growth of beard which did not exist because he was growing it in but because he had been too lazy to shave. And, needless to say, the faux earrings.

It was too late to send him home to change. I remarked to him about his attire being inappropriate. He promptly responded that I had never told him and I reminded him about our discussion concerning the earrings. To my chagrin he then went to the restroom and returned sans earrings and rhetorically questioned whether he then looked better.

The moral of the story is that you should never take it for granted that your client understands what dressing and grooming appropriately means. A few short minutes discussing this along with ascertaining from your client what he intends to wear can avoid a possible problem.

 

 

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Choice vs. Chance in Selecting Mediator

Bill- I thought you might relay the story of our botched mediation with the court-appointed mediator:

After each party made their 5-minute opening statements, the mediator caucused with the defendant for about 10 minutes. He then announced to the plaintiff that the mediation was an impasse, because the Defendant denied liability. No demand was made and no offer had been made. Plaintiff filed a Motion for Sanctions for defendant’s failure to make a good-faith offer. The court reserved on sanctions, but directed the parties to re-mediate.

I am actually mostly disappointed in the court- appointed mediator, because he obviously didn’t do his job. This is demonstrated by the fact that as soon as the M/Sanctions was filed, the defendant tendered an offer, and 2 weeks later, another mediator was able to get the case resolved. And, of course, the defense counsel’s lack of experience was a big factor too, since most other attorneys would at least have tendered a nominal offer to avoid the motion.

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Bob Hyde’s Experience – Authority to Settle

Bill, here is what happened:

About fifteen years ago, on behalf of a local commercial landlord here in Jacksonville, we were suing a national women’s clothing chain for breach of lease in federal court. After some intense early motion practice which gave the promise of protracted and expensive litigation, we agreed to a mediation to be conducted by one of the leading mediators in Northeast Florida. The defendant’s representative was its in-house counsel who also, if the matter went to trial, would be a witness in the case.

We proceeded with the understanding that the representative of defendant had authority to settle the case. After a day of intense negotiation, the mediator was able to get the two sides to agree on a settlement and both sides signed a settlement agreement. However, defendant’s representative stated that he had to obtain what he referred to as “rubber stamp” approvals from the home office, but emphasized that there should be no trouble in obtaining these.

While I had a twinge of concern about this, after all the hard work and effort, we decided to go forward.

You can imagine my chagrin, as well as that of my clients, several days later when the mediator called to say that he had been in touch with counsel and his people at the home office and at least one of them had balked in agreeing to the settlement. Despite the mediator’s best efforts, it fell apart and he had to declare an impasse.

Over two years later, after extensive discovery and expense, the parties went to jury trial in federal court. The judge urged us before trial to mediate a settlement, but the parties were unable to agree. After a week of a contentious jury trial, the judge announced at the end of the sixth trial day that he was taking off his judge’s hat and putting on his mediator’s hat. After three or four hours, he got us to agree on a settlement. The supreme irony: the settlement figure was exactly the same as what we had agreed to nearly two years earlier.

The principal teaching of this episode was each side must have absolute and ironclad assurance that the other side will be represented at the event with full authority to settle. The second is that parties need to listen to the admonitions of a mediator who advises each side that the way forward is fraught with substantial risk and expense, which certainly applied to both parties in this case.

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Jennifer Hernandez’ Shared Story

Bill,

I represented a defendant in a mediation recently where our client strongly believed there to be no liability, but knew the case would be extremely costly to take to trial.  The client was willing to pay to settle the case early.  During the opening statements, after explaining the theory of liability Plaintiff’s counsel looked my client in the eyes and said very abruptly, “This case is not settling today.  We are not willing to take a penny less than our demand and if you aren’t willing to offer that, then you can walk yourself out the door.” This of course infuriated my client, who tried to stand up and walk out.  Luckily I was able to calm my client down and get through our opening statements, but the mediation from that point forward had a nasty tone and the authority that was once on the table was reduced by almost 75%.

While being passionate about your case and strongly advocating for your client are understood, insulting the opposing party at the outset of the mediation is never a good idea.

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Gun at Mediation

Bill,

While I don’t think there is anything that could be done to opposing counsel as a result, in a recent deposition I was midway through a morning of what had been very effective examination of the opposing side when my client, who had attended the deposition, said on a break, “You might want to watch how effectively you destroy his case. Mr. _____ (the witness, not the lawyer) is packing heat.” I dismissed it as a bad joke, but as we started back up I was watching the left side of his suit very carefully and sure enough, the witness I was doing my best to break down was sitting less than four feet across a table from me with the handle of some kind of handgun at chest height just waiting to be used on his least favorite attorney in the room.

Here’s what I did – there may have been better approaches, but I didn’t know what they were – I called for another recess and asked for the opportunity to speak with opposing counsel alone. I told the attorney that I wasn’t comfortable continuing the deposition while his client had a handgun holstered to his chest, and that my client had brought it to my attention and I believed he was uncomfortable with the idea as well, and so unless his client would agree to leave the firearm in his vehicle until the deposition was completed, I was going to adjourn the deposition. Opposing counsel had no idea what I was talking about and said he would check with his client because he did not believe that his client “was a gun man.”

He returned to the room and advised, (Not exactly sure this is a quote, but close enough) “Okay, it turns out he does have a firearm, but that he is licensed to carry it, he is not breaking any laws by having it with him today, and he will not be leaving the gun in his car but that if I wished to adjourn the deposition, neither he nor his client had any objections to that.” I told him that he could consider the deposition adjourned, and assured him that he would have my motion for protective order by the end of the day. This threw opposing counsel into a tail spin – screaming and yelling about how far he and his client had traveled for the deposition, and that he would report me for an ethical violation (not sure what I was being accused of) if I even dared to try and prejudice the court against his client by suggesting he brought the handgun to the deposition to intimidate.

Giving opposing counsel a couple seconds to catch his breath, I responded by encouraging opposing counsel to report any ethical violations he observed myself or other members of the bar committing, but that in this day and age I did not believe that my conduct was inappropriate. I continued, “In fact, if you can tell me one reason why your client is sitting in that room with a firearm other than to intimidate myself or my client, I would be happy to consider completing the deposition.” My colleague responded, “I don’t know, maybe he thinks that there are people out to get him and he keeps the gun on him for protection.” Doing my best to keep a straight face, I asked opposing counsel whether that was supposed to make me feel better or worse and pointed out that if his client did have people “out to get him” such that he needed to have a firearm on him, didn’t he agree we all had the right to know about it in advance so that we too could bring our firearms to protect ourselves from becoming innocent victims of his client’s conflict?

I believe that opposing counsel recognized the absurdity of the situation at that point, because he asked me to give him another opportunity to speak with his client. He returned to the room about five minutes later and advised his client had agreed to place the firearm in his vehicle until the deposition was concluded. His client did so, and the deposition was finished without further incident.

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Considerations for Real Property in Marital Settlement Agreements by Michael Vines, Esquire

Many Marital Settlement Agreements (“MSA”) deal with the transfer of ownership of real property with the execution of a Quit Claim Deed but fail to deal with the underlying issues surrounding the debt owed on the property. If there is a loan on the property and both parties signed the note then the simple transfer of ownership does not relieve either party from the joint and several debt that is owed. Further, if the property is facing foreclosure then any party that is a signor on the note is exposed to attorney’s fees, costs, interest, and protection of collateral payments such as expensive force placed insurance and taxes. MSA’s that do not address these issues expose clients to hidden damages and therefore expose their attorneys to claims for malpractice.

 

MSA’s are contracts. The terms of the MSA can be enforced through the family court and some provisions can be enforced by contempt. However, the equitable distribution portions of the MSA are not subject to contempt and the requirements many times can be bankrupted. Therefore, it is important to be specific as to the terms of the MSA concerning real property and whether those terms and conditions can be avoided through bankruptcy.

 

The following is a list of many of the considerations that should be included when preparing the portion of a MSA dealing with real property:

 

Is the real property going to be the homestead of the grantee after the entry of the MSA: 

The execution of a MSA does not by itself create a lien against the property. Therefore the terms and conditions of the MSA usually will not attach to the property if the property is the homestead of the person against whom enforcement of the terms and conditions is sought. Consider either executing the MSA in legally recordable form with the legal description of the property included, two witnesses for each signature, a notary for each signature, creation of lien language and waiver of homestead language for enforcement. If the parties wish to keep the other provisions of the MSA confidential then consider a reference in the MSA to a separate real property agreement and prepare the separate real property agreement in recordable form. You may even wish to title the separate real property agreement “Lien for Separate Real Property Agreement” so that any search of the property will list the Agreement as a lien. Title companies are used to finding and having to clear the requirements of liens.

 

Is the real property encumbered by a loan and who signed the Note:

 When married persons purchase real property they both will be required to execute the mortgage. Banks are worried about a non-signing spouse defending a foreclosure action by raising the defense of homestead. They are NOT both required to sign the note unless the credit and/or income of both parties was used to secure the note. The only party that has a financial obligation for the debt is the person that actually signs the note. If one party is being divested of ownership, how is their liability as a signer of the note going to be dealt with? Have you included provisions for the note to be paid timely on a monthly basis? Have you included provisions that all requirements of the mortgage, such as taxes and insurance, must be complied with? Can the spouse that executed the quit claim deed force the sale of the property if the note is not timely paid? If yes, when, at what price and who will be the listing agent? What happens if the listing agent cannot get a contract at the listing price? Who will decide to lower the price and by how much? What is the formula to determine the minimum price at which both parties are required to execute a sales agreement and how much of a deposit is required? (This provision is usually contained in an Agreement that is not incorporated in or attached to the Final Judgment of Dissolution of Marriage so that it is not recorded) Will the sales agreement be an “As Is” sales contract or will there be a “Repairs Clause” and who will pay for said repairs? What condition does the property need to be maintained in throughout the sales process? How often must the spouse living in the property make the property available for showings and upon how much notice? Will there be open houses and will there be a lock box? Does the judge have the power to appoint a person to sign on behalf of a spouse that does not follow the terms of the MSA to execute the listing agreement, sales agreement, and closing documents? Will the judge have the power to enter an order transferring the property if one party refuses to execute the Deed?

 

Is the real property facing foreclosure:

The basic questions surrounding who signed the note become even more detailed when the property is facing foreclosure. The requirements to force a sale are not enough. The short sale process requires that any party that signed the note provide financial information such as tax returns, pay stubs, and bank statements. Further, the parties will have to submit a hardship letter and an application for the Short sale. It is also important to remember that these documents expire every 90 days and that the parties will have to submit updated financials if the short sale process takes more than 90 days. Finally, once the short sale has been submitted to an underwriter for review there is a very high likelihood that the underwriter will request additional documents. Those documents generally have to be submitted within 48 hours.

The MSA also needs to cover who will pay for the cost of hiring an attorney to defend the foreclosure and if the property cannot be sold as a short sale then what terms the parties will agree to, if any, in a judgment. Many foreclosures can be finalized with a waiver of deficiency. Please note that both the waiver of deficiency and a short sale have a tax consequence. The bank will issue a 1099 to all parties that signed the note. Who will be responsible for this tax obligation? Is the tax obligation the same for both parties? Remember that at best this is only the homestead for one of the parties. Finally, who is responsible for the deficiency judgment, if any? The judgment will be joint and several and hold harmless language will only be enforceable against collectable assets.

 

Is a refinance or loan modification realistic:

Many MSA’s call for the receiving party to refinance the property or get a loan modification within a certain number of months or years. Rules regarding refinancing of properties regularly change. It is however very rare that a refinance to “remove” a party from the note will occur unless the property has an 80% loan to value ratio. If it is not realistic to achieve this ratio within the time limits then the defense of impossibility is being written into the MSA. This is not an outcome most clients will accept. Loan modifications and refinances are both based on property value and income of the person requesting the modification or refinance. Make sure that this is a property that will qualify and that the person making the request will qualify before exposing your clients to a provision in a MSA that cannot be fulfilled.

 

Probate:

It is important to remember that once the quit claim deed has been recorded the grantor has lost control over the property and that they only have the rights listed in the MSA. Make sure that the real property provisions of the MSA are specifically binding on the heirs and assigns of the Grantee. If both parties signed the note then the death of the receiving spouse does not alleviate the obligation on the note for the remaining spouse even though that person executed a quit claim deed. Before death the spouse that received the property may have fulfilled the terms and conditions of the MSA and paid the note timely. It is unlikely that the heirs of the deceased spouse will be motivated to or have the means to continue to maintain the obligations associated with the property. It is therefore important to make provisions for the untimely death of the receiving spouse as long as the grantor remains liable on the note.

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