OP-ED: Call Your State Senator and Leave Message to “VOTE NO ON SENATE BILL 2”

Protect Your Rights to Full Compensation for Injuries and C

 “Vote No on Senate Bill 2”

Your right to a trial by jury of your peers is under siege.

I encourage every citizen to contact their Kentucky State Senator and ask them to “Vote No on Senate Bill 2”.

Please do so quickly since there may be a vote this Monday, Feb. 12, 2018.


Call toll free 1-800-372-7181; say you wish to leave a message for your Senator. To make sure the message gets to the right person, you will be asked your name, your address, and then your message.

The Message: “Vote No on Senate Bill 2”

When: Now.

What: Senate Bill 2 is an attempt to change the Constitution to our the state legislature to limit your right to full compensation for harms and losses you, a loved one, or a neighbor would be asking of a jury when injured by the carelessness of another. This includes wrongful death, car collisions, medical negligence, and legal negligence among other things.

The proposal would change our Kentucky Constitution to give the Legislature the right to set a cap for the maximum amount you could receive from a jury in your county. For example, if a parent is killed in a terrible collision, then the amounts that would go to the children could be limited by the state and not the jury regardless of the amount your children would otherwise be entitled to under the law as determined by a jury.

For example, if you were crippled and confined to your home and never work again, then the legislature could set a limit on your lost income in the future, your pain and suffering you have endured and will endure for the rest of your life, your future requirements for medical attention and rehabilitation. All of which you will need to get your life somewhat closer to what it was before you were harmed.

The real question is who do you trust better to do the right thing for you, your family and friends? People who live in the community or a group of representatives who have little accountability to you and who are subjected to enormous pressure and lobbying from those interested in capping the amount they would otherwise be obligated to pay. These would be the same people who caused and still cannot fix our pension crisis.


Your right to a jury trial is very, very important. It’s in our federal and state constitutions. Your local jury is the conscience or YOUR community. They are the ones who will hear the case, understand the injuries, and see costs you will require to compensate you. It is that simple.

More importantly, the jury system is not broken and is working fine and the change will not benefit you at all but rather will benefit those who have injured someone carelessly by allowing them to escape their responsibility and their financial obligation by paying less than you might otherwise be entitled.

Remember the law now is that you have a right to be made whole and be put as close to where you were before you were hurt. You may have pain, medical expenses, rehabilitation therapy, vocational training and more.

It is very important to know that these potential caps will hurt those who will need it more and is exorbitantly unfair.

The caps should not affect minor cases or injury recoveries. But, they would hurt those who have lost a family member or have received devastating and crippling injuries since the wrongdoer and their insurance would get a free pass and put the money in their own pockets.

I am not saying the legislature would intentionally hurt you by placing caps, but the potential for harm by those in Frankfort is too great for me to want them having any more control over my life at a time when I needed help the most.

Remember if you do not get the full amount you are entitled to, then you will need to look somewhere for help. Family and friends; government aid; or charity. This is demeaning and not fair to you or your family. And requiring other taxpayers and charities to pick up a tab for the negligent harm caused by another is also terribly wrong.

Trust me, there are already plenty enough cases and injuries out there where the wrongdoer has no money or insurance to make it right. We really should not be adding the problem to allow folks a free ride on their wrongdoing.

Here is a link to the law:

“Are you in favor of permitting the General Assembly to: (1) Place limits on the amount to be recovered for injuries resulting in death; (2) Place limits on the amount to be recovered for injuries to person or property; and (3) Create statutes of limitations or statutes of repose as to how long after the incident a law suit may be commenced?”

If the state can make such a mess of government pensions and other matters then who would want them deciding what you will need as determined by a jury who will have heard the evidence, heard from you and heard from the doctors

Trust a jury to do the right thing is what I want. The jury is in the absolute best position to know.

This is not the wild wild west. In a jury trial, there is much investigation. At trial there will be a judge making everyone follow the law with the wrongdoer represented by a lawyer who will fight tooth and nail to see that his client pays as little as possible. And the jurors will take an oath to follow the law.


Attorney Sidebar: Clarence Darrow on Fighting Power, Injustice and Oppression

~ Clarence Darrow

When Clarence Darrow was tried for subornation of perjury, he told jury in his own defense —

I have committed one crime… Which cannot be forgiven. I have stood for the weak and the poor. I have stood for [those] who toil.… I have lived my life, and I fought my battles, not against the weak and the poor – anybody can do that – but against power, against injustice, against oppression.…

~ Clarence Darrow, Attorney for the Damned, pages 496-497.


Recent events now remind us now more than ever of the critical role played by juries, lawyers, and the right to a jury trial.  Not only their criticality in affording justice for every person who is equal before the law, but their place in our Constitutional government.  The judiciary is a separate and equal branch of our government.  It is no less important than the other two branches.  The judiciary is not just the appellate judges in robes handing out opinions from on high, but includes the judges toiling day to day in our court administering the rule of law faithfully, dispassionately, and fairly.

Trial judges do this  not just with opinions and rulings from the bench, but in their roles at jury trials as one of the three legs that hold up the separate but equal branch of our government — the Constitutional Right to a trial by jury.  The other two legs of a jury trial are the trial lawyers’  and the individual jurors who make up the jury.  Their roles are  a reminder all of us of the protections required and afforded to ALL of our citizens in keeping liberty and freedom secure.  Not just criminal and civil defendants.  When justice is afforded to an individual defendant in the exercise of their right to a jury trial, we ALL benefit from those blessing of liberty and freedom from injustices.

The Sixth Amendment:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury ….

The Seventh Amendment:

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

And the right to a jury trial is composed of three key players:

  • Judge
  • Jury/jurors
  • Lawyers

Without these three supporting foundations, then our protections against an overreaching law enforcement agency (eg., FBI), denials of equal justice and rights, government oppression or passage of laws violating our Constitution would be vastly different.

So, all of us should protect their independence, their role and and their place in a free society.  This is not just me, it’s the law.  Constitutional Law.

Postscript on special prosecutors.

Some argue that the Founding Fathers committed a misstep by placing the criminal investigator powers of the federal government in the executive branch.  I disagree.  The other two branches are not well-suited, and a check and balance was provided against the executive/President via impeachment and removal if necessary.  Also the Fourth Estate (a free and honest press, not the entertainment arm of the cable news channels but an investigator press that ferrets out the facts and reports on these facts, and of course I would prefer facts and not anonymous sources) should provide a check.

Thus, there are two enigmatic situations that have developed:

First, we should all be thankful about the press and media breaking of stories of potential corruption, biased investigation for/or against citizens, and Fourth Amendment violations and crimes.  It is too soon to tell, but the risk of ignoring and sweeping under the rug is a recipe for chaos and disaster.

Second, the special prosecutor should not be investigating anything associated with the president. I say this because the risk of the FBI crossing the political lines and being used as a usurpation of Congressional authority and their role in impeachment and removal of the president is disingenuous and also violates the Constitution.  The President is the executive. He can remove any person appointed in the executive department for any reason.  POTUS nominates, supervises, and removes those whose nominations have been approved by the Senate (and those not requiring Senate approval).

Any investigation into the Presidency by any government entity is an abuse of power and irresponsible.  The House can investigate, bring a bill of impeachment, and if passed, it goes to the Senate for the removal decision.



Case Note: Ronald Eggemeyer vs. Dr. Ted H. Jefferson, COA, Published 6/12/2015

Mistrial granted when insurance defense lawyer repeately disobeys trial judge's order on defenses AND second mistrial in med mal case following defense misconduct


Court of Appeals Judges Lambert, Jones and Acree

Ronald Eggemeyer vs. Dr. Ted H. Jefferson, COA, Published 6/12/2015

[Editor’s note: This decision reflects a major miscarriage of justice which will result in a third trial on a medical negligence issue.  It is a worthy read and should be an eye-0pener to insurance companies and judges alike on the abusive techniques that a defense lawyer feels free to take.  Judge James Lambert wrote a well-reasoned and clearly delineated opinion, joined by Judge Jones, with a dissent by Judge Acree invoking the name of Henry Clay reading a the new trial standard as unchanged over the years as the starting point that an abuse of discretion is relative and did not occur in the case sub judice.  Of course,  I am reminded of more sound legal thought than Henry Clay simply opening a book; wisdom that can be found in the jurisprudential thought of Oliver Wendell Holmes, to wit:

“It is something to show that the consistence of a system requires a particular resuly, but it is not all.  The life of the law has not been logic; it has been experience.  The felt necessities of the of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed.” O.W. Holmes, Jr., The Common Law, 1881, page 1.

Keep in mind further that the events that transpired in this case have broader applicability because at the heart of the order was that the defense could not profit from the taking of proof by a mistrial it had caused and thus use this additional time to build up their defense.  Nothing in this opinion questioned the legitimate ends of the trial judge’s order forbidding the defense to from using new evidence, theories, defenses, etc.

Now compare this to you having a trial date, and you are meeting all the pretrial deadlines, to include expert disclosures, then one side or the other asks for a continuance with a new trial date. Should the person seeking the continuance be allowed a new set of pre-trial deadlines or should those deadlines be frozen in time and/or requiring the party or parties to meet those deadlines as stated based upon the original trial date and the only change being the pretrial and trial dates?  Or your trial date gets bumped by the court’s crowded docket?  Just a thought.]

The appeal was before Chief Judge Acree and Judges Lambert and Jones with Judge Lambert writing the majority opinion, Acree dissenting, and Jones concurring but adding a concurrence. The COA reversed and remanded.

Here we go (with all quotes from the actual opinion):

This is a medical malpractice case arising out of the underlying Defendant, Dr. Ted Jefferson’s, alleged failure to properly repair Eggemeyer’s broken arm by placing enough screws below the fracture site and by failing to diagnose a post-operative infection. The first trial in this case took place in August 2012. During that trial, Dr. Jefferson violated the court’s instructions and orders by repeatedly referring to Eggemeyer’s medical insurance. The trial court declared a mistrial and held Dr. Jefferson in contempt, but did not make a determination of the sanctions until after the second trial.

* * *

Additionally, after the mistrial, the Court instructed counsel that the case would be retried as it now sits. There would be no new experts or theories or anything else that was not disclosed in the first trial. This was in an effort to keep the costs to a minimum and to shorten any delay in retrying the case.

Following the mistrial, Dr. Jefferson replaced attorney E. Frederick Straub with attorneys Scott Whonsetler and Jeffery Thompson.  Plaintiff then renewed the above motion at a pre-trial conference, and the court reiterated its position and the new “Defense counsel stated that they would abide by this ruling.”  Defense counsel did not, and plaintiff submitted a brief address 12 of the most egregious errors etc., and following a hearing the Judge Craig Clymer issued the following oral ruling (followed by a written order):

And I mean not even get up and tiptoeing to the line. Because, this is a pretty egregious violation of the rules, and it’s an ambush. And, particularly I think when we were sitting there yesterday talking about this and saying no new issues of legal liability in this case, I think you’re sitting there and you knew that you were going to do this. And, we couldn’t pull it out of you. And you stand up in front of that jury and tell them that, you completely went against the ruling of the Court, in doing that. And so, I don’t know…I don’t know what the outcome is going to be right now other than I’m going to be watching to make sure we don’t get anywhere near any of that. And, Dr. Jefferson as well. Now, you may be asking some question and, if Dr. Jefferson believes he’s going to bring that in, I have no problem at all with enforcing the Court Order by either a civil contempt, or a criminal contempt. And the civil contempt or criminal, either one can be by imposing fines or it can be jail. And, I don’t tend to try this case another time. And so, ya’ll [indicating Whonsettler and Dr. Jefferson] need to get your act together on this. And, if I hear anything, I don’t have time to go through all of these things and say, “Ok, We can’t do this. We can’t do that.” This is all stuff that should’ve been handled by reputable attorneys, ethical attorneys, a long time ago. That here’s what this trial is going to be about, and we understand. Maybe I just have the luxury of dealing with attorneys who play fairly and by the rules, and I don’t have these problems.

And defense counsel, still failed to follow this order –

During closing arguments, Mr. Whonsetler again referenced Dr. Jefferson placing “three screws below the fracture line.” Eggemeyer again objected and the trial court ruled from the bench, “And I just know now, again, you have violated a Court order in this case.” The court admonished the jury to disregard the statement. Undeterred, Mr. Whonsetler immediately turned to the jury and said, “Ladies and Gentlemen, you will have the x-rays. Take a look and you will see that below the fracture line there are three screws that go from cortices to cortices. The cortices are the white portion of the bone, at either side of the bone and you will see that. You can measure it up against the original film and you will see that it is beneath the fracture line.” Eggemyer objected again, and the objection was sustained; however, counsel was not permitted to approach and no admonition was given. The court stated, “Just go on to something else. I’ll decide how we’ll handle that.”

The jury returned a defense verdict, and the plaintiff appealed claiming the trial court abused its discretion denying his motion for a new trial.  Dr. Jefferson cross-appealed the award of sanctions against him for attorney’s fees of $58,858.82 (and the court stating these were because of Dr. Jefferson’s direct defiance of its orders throughout the first trial).

[Editor’s note: Nothing in the appeal showed defense counsel attempting to preserve these issues by an avowal.]

As the Court of Appeals held:

We agree with Eggemeyer that CR 59.01 is absolutely designed to prevent the conduct that occurred in the instant case. The trial court clearly and unequivocally ruled, after first declaring a mistrial, that the second trial would not be an opportunity for the defense to present new theories or evidence. In fact, the trial court explicitly prohibited the defense from presenting the exact evidence and theories they attempted to get in during the first trial. While Dr. Jefferson attempts to couch this as an innocent mistake of the trial court’s meaning in his brief to this Court, we are not persuaded. Instead, we agree with the trial court that defense counsel attempted to ambush Eggemeyer and directly violated specific repeated orders of the Court. The record reflects a clear intent by defense to proceed however they pleased, in direct contradiction of the trial court’s instructions and in direct contradiction of the promises they made to the court prior to the beginning of the second trial.

To be clear, we hold that the trial court’s failure to grant Eggemeyer a new trial was an absolute abuse of discretion, and we find palpable error under CR 61.02. [emphasis added].

With regard to the sanctions, the Court of Appeals held:

Dr. Jefferson argues that the amount of sanctions was excessive, contending that Eggemeyer’s counsel was likely paid on a contingency basis. A review of the record indicates that the trial court considered the amount of sanctions and lowered the amount from that originally requested by Eggemeyer. We do not find the sanctions to be excessive and will not disturb them on appeal.  * * *

Judge Jones joined in the majority opinion and filed a separate concurring opinion–

I join in the majority opinion, but write separately because I do not believe that it was necessary for the majority to engage in a palpable error review. The palpable error standard is reserved for review of unpreserved errors. I believe that Eggemeyer preserved the new trial issue making palpable error review unnecessary.

Eggemeyer objected throughout the trial to argument and evidence concerning the new theories. Despite being repeatedly instructed to avoid those issues, defense counsel persisted in inserting those issues into the trial from the beginning to the end of the trial. While each isolated incident may not have been enough to warrant a new trial, the cumulative effect of repeatedly hearing those -15- theories referred to throughout trial, without a stronger admonition from the court, cannot be ignored. Indeed, the statements so infected the trial one wonders whether any admonition would have been effective to cure the prejudice.

“This court has condemned, in every instance when it has been brought to its attention, statements made by counsel not supported by the record, and where such statements are persisted in, and a party recovers a verdict when it is reasonably inferable that the improper statements affected the minds of the jury, the judgment should not be allowed to stand.” Connecticut Fire Ins. Co. v. Colker, 16 S.W.2d 761, 762 (Ky. 1929).

Judge Acree’s dissent wiped away the cobwebs from the books as he referenced the statute from the 1851 Code, raised the name of Henry Clay, and compared the code to what was then to what is now with a heavy reliance upon the trial judge’s discretion.  In fact, cases granting the trial judge “wide legal discretion” and “very strong reasons for granting a new trial” from 1984 and 1952, respectively came to the forefront of his analysis.  Judge Acree then states “Nothing in our jurisprudence suggests we are today less reluctant to find abuse of a trial court’s discretion on this issue. That discretion is my touchstone.”

The dissent then gets confusing from this point forward when Acree refers to legal authority stating

Where an attorney “‘deliberately go[es] outside the record in the jury argument and make[s] statements, directly or 3 The motion was made and granted in open court but the order was entered on November 19, 2012, after the jury deliberated following the second trial. -20- inferentially, which are calculated to improperly influence the jury,’ . . . prejudice . . . may be presumed.” Smith v. McMillan, 841 S.W.2d 172, 175 (Ky. 1992) (quoting Louisville & N.R. Co. v. Gregory, 144 S.W.2d 519, 522 (Ky. 1940)). But what, in practice, does this “presumed prejudice” mean?

* * *

Prejudice varies by degree.

* * *

Skilled practitioners make use of the variability of presumed prejudice as part of their trial strategy. While a counsel’s reference to facts not in evidence occurs accidentally from time to time, 4 it would be naïve to presume it is never the result of counsel’s conscious decision and intentional act. How far to push this envelope is trial strategy. How opposing counsel reacts is also trial strategy. While all improper argument will justify sustaining an objection to it, the offense may be so slight that opposing counsel, as a matter of trial strategy, will choose not to object 5 or, if she does object, will choose not to follow up by requesting an admonition.6 Counsel must weigh both the effectiveness and impropriety of an argument before requesting an admonition, knowing that the admonition will repeat and even showcase it.

The remainder of the dissent then seems to bounce around trial strategy and the use of objections and admonitions.  “At this point, again, strategy comes into play. Counsel objecting to the improper closing must decide whether to move for a mistrial, i.e., ask the trial court to discharge the jury before a verdict is ever reached. However, doing so has an effect similar to objecting or seeking an admonition – it brings further attention to the improper comments. Counsel must then undertake an analysis similar to that just outlined. ”

And, the concluding paragraph of the dissent goes – –

Though the case before us may be closer than others, I simply do not see “very strong reasons for granting a new trial [or] reasonable certainty that injustice or wrong would result” by affirming the trial court’s exercise of discretion here. Gray v. Sawyer, 247 S.W.2d 496, 498 (Ky. 1952). Clear it was that the trial court did not appreciate the liberties taken and indiscretions exercised by Dr. Jefferson’s counsel. That is evident from the trial court’s rebukes and admonitions. But while the trial court sanctioned Dr. Jefferson by a separate order, the court did not sanction counsel for improper conduct. Because the trial judge was in a better position to make the determination whether a new trial was justified, and because this is not a case clearly justifying reversal of that determination, I would affirm.

[Editor’s Note:  It would seem that “trial by ambush” and repeatedly ignoring trial court orders goes beyond the pale of inadvertence and, in my opinion, strikes at the very heart of justice.  This is not gamesmanship where counsel’s abuse of the rules amounts to trial strategy which then forces opposing counsel to make trial strategy decisions in response to intentional misconduct.  The insurance lawyer, in this case of the second trial, did more than play fast and loose with the law and trial orders, he exhibited open defiance and disrespect which ambushed plaintiff’s counsel, and should not be characterized as boys will be boys.  Odd and unusual case, and while those on Olympus play, the mere mortals pay because with a third trial on the horizon it is beyond cavil that it now appears that justice delayed is nothing more than justice denied.  Those old equity principles have a moral foundation to them which should not escape their application to achieve the ends of  justice today.

Editor’s Note:  Why weren’t these issues raised by Whonsetler in the second trial raised by Straub in the first trial?]

OP-ED: Six Traps You Should Watch Out for in Auto Accident Releases, or Get Ready To Stand Up to A Bully

man in hood at night, want to break the shutter

From DepositPhotos.com

Here are six TRAPS to watch out for when the liability insurer wants to settle and your client is anxious for the money.  Items in a release the liability insurer may present in a brute show of force, stealthily added to the release when never discussed,  or just assumed that’s they way all their releases must be signed.  Oh yeah, get ready for the old saw that “everyone else signs them” so what’s your problem.

This post is not exhaustive; nor are all the traps shown or even addressed in detail.  But, just keep an eye on those good neighbors who are always by your side all around Kentucky.

After Coleman vs. Bee Line’s pronouncement by the Kentucky Supreme Court, it is pretty easy to get the insurers to make sure the release excludes PIP and does not include indemnification for PIP.

However be ever vigilant since some of the following issues were/are never brought up when reaching a settlement number, and it might even be wise to include express language in your settlement demands to insure some of these items stay off the negotiating table.

Such areas include attempts by the liability insurer to include

  • Waiver of PIP benefits;
  • Release of consortium claims when not representing the spouse;
  • Global releases of “any and all other” persons etc.;
  • Indemnity language of claims against the tortfeasor by persons other than the settling claimant;
  • Non-negotiated indemnity language, period:
  • Attorney agreeing to indemnify (ru serious??);
  • Confidentiality and non-disclosure clauses;
  • Additional items so no “meeting of the minds” or a suit needed to enforce the agreement.

I consider these clauses to be objectionable and potentially bad faith or a breach of fiduciary duty by their very terms or the manner in which they end up in the release submitted with the check.

After the fact insertion of language which was not agreed upon is a no brainer violation, but the sneaky trick can be a problem when a client thinks the case has settled and just say “show me the money!”

Most recently, the Kentucky Department of Insurance came down hard on liability insurers who attempt to obtain waivers of reparation benefits as part of the liability settlement.  Such moves should always be reported to the Department of Insurance, at a minimum; and may put the claimant’s attorney in a position to advise her client of the potential claim too.  However, that is a decision each attorney must make for themselves.

Click here for DOI Complaint Information.

Here are six items to watch out for in those darn releases, most of which are boilerplate with the adjuster either not knowing the consequences of the terms or not having the authority on his/her own to redact certain language.  Thus adding delay to getting the client the agreed upon settlement sums.

1.  Waiver of PIP benefits.

These should never be in a release, and with the publication of Advisory Opinion 15-02m must be reported; and if you think it amounts to a bad faith violation or a breach of the Unfair Claims Settlement Practices Act, then another whole can of worms is opened through no fault other than the insurer (liability, UM, UIM).

The DOI Opinion added regulatory muscle to the complaints of many claimants’ counsel when it addressed the illegal practice of some liability insurers attempting to sneak a release of PIP (reparation benefits) as part of a personal injury liability settlement in a car accident case.

For the complete text of Advisory Opinion 15-02, then click here for our earlier post which contains the entire opinion and which is a must read for injury lawyers and insurance lawyers alike.  Insurance defense lawyers would be doing a disservice if they did not update their clients of the consequences of this explicit instruction.

Furthermore, the vast majority of bodily injury (“BI”) settlements involve third parties. By requiring that the injured person give up any claim to BRB, the insurer insists that the injured person forego the rights to a benefit the injured person paid for and is provided by the injured person’s own insurer. This has the effect of forestalling subrogation by the injured person’s insurance company through the Kentucky Insurance Arbitration Association. Such action has nothing to do with the injured party’s case, or the compensation the at-fault party’s insurer is legally obligated to pay. Subrogation rights for BRB payments belong to the BRB obligor (the injured party’s insurer). Furthermore, pursuant to KRS 304.39-140(3) collection of damages from the liability of a second person, a self-insurer or an obligated government shall have priority over the rights of the subrogee for its reimbursement of BRB. Liability coverage is all that should be at issue in a settlement of a BI case. The Department discourages efforts to abrogate an individual’s ability to get medical treatment by employing such a practice. This is particularly troubling in light of the fact that health insurance will not pay for treatment where other insurance is, or should be, available.

Additionally, contract case law is clear that if there exists no “meeting of the minds,” a settlement document or any other contract could be declared invalid. Breach of contract law would apply in this situation, especially if the insurer inserts this clause into a release document when no such provision had been agreed upon by the parties. This could be construed as a potential violation of the Kentucky Insurance Code, especially in the case of an unrepresented party who trusts that the language in the release reflects the settlement agreement.

2.  Loss of Consortium Claims.

If you do not represent the spouse of the injured claimant, then what is the basis for a liability insurer requiring as part of the settlement agreement that the unrepresented spouse sign the release or even the settlement check?  None.  But this goes back to an old insurance axiom that a closed file is a happy file, and apparently closing by means of making a claimant and their attorney do the liability insurer’s bidding.

In addition, no contract means no authority for the unrepresented spouse.  I won’t even go into the ethical issues, but the simple contractual requirements creating the legal representation not to mention the requirement of “actual” authority to settle a claim as required in Clark v. Burden, 917 S.W.2d 574 (Ky. 1996).

 And to add insult to malpractice, all this bidding would be expected at no cost to the insurer for crying out loud.

3.  The Global Release of all other persons.

It is clear that a release of all other persons is a release of all other persons per Nationwide vs. Abney.  This language usually surfaces for the first time when the boilerplate release is tendered with the check.  Fortunately, after Abney, there is usually little pushback by the insurer when caught.

Of course, I have always wondered about the potential quicksand for the insurer who shows more concern about non-claimant third parties then their own insureds when concluding a case.  Of course, the higher the amount of the settlement (and especially when limits are exhausted) means the greater exposure for any breach.  But, for the very, very small settlements, then why bother with the risk?

In any event, this language finds its way in releases to this day; and especially in those insurers outside the Commonwealth.

4.  Indemnity against claims by other claimants.

Indemnification has the potential of Alice Looking through the Looking Glass with indemnity, upon indemnity which then swallows up the entire settlement and potentially the claimant taking over the obligation of the liability insurer.  Rarely happens, or can even potentially happen, but why risk it.  Any indemnification should be negotiated specifically since indemnity is not a release.   See Frear vs. P.T.A. Industries, 103 S.W.3d 99 (Ky. 2003).

The inclusion of an indemnity clause started the problems in Coleman vs. Bee Line Courier Service, 284 S.W.3d 123 (Ky. 2009).

And, Crime Fighters Patrol v. Hiles, 740 S.W.2d 936 (Ky. 1987) highlights how indemnity upon indemnity is a dangerous thing.

Now, limited indemnification for certain claims and caps on the amount are another thing when addressing government super liens but always think about the risk that indemnity might exceed the client’s total settlement amount.  Ouch.

5.  Attorney personally agreeing to indemnification.

There are several ethics opinions condemning this practice (eg., Arizona; Connecticut;  Montana; Illinois; IndianaOklahoma; Ohio; Tennessee;  W.Va.;  DRI Article on MSP and Indemnity).  Some of these opinions even specifically address AND prohibit attorney from personal indemnification in MSPRC/Medicare subrogation liens..

6.  Confidentiality clauses.

Two problems with this one.  Ethically and taxability, plus potential of losing entire settlement recovery following a casual conversation while in line at the super market.

The Kentucky Supreme Court has already expressed a distaste for these clauses:

Kentucky Bar Association v. Unnamed Attorney 

2012-SC-000388-KB December 19, 2013 

Opinion of the Court. All sitting. Minton, C.J.; Keller, Noble and Venters, JJ., concur. Abramson, J., concurs by separate opinions. Scott, J., concurs in part and dissents in part by separate opinion in which Cunningham, J., joins.

During the court of Unnamed Attorney’s representation of a fellow attorney in a disciplinary matter, Unnamed Attorney negotiated a settlement between his client and the complaining party. The terms of the negotiated settlement resulted in charges of professional misconduct against Unnamed Attorney because the terms of the settlement agreement required the complaining party to refuse to cooperate voluntarily with the Kentucky Bar Association in any investigation into the matter. The Trial Commissioner adjudged Unnamed Attorney guilty of professional misconduct for entering into such an agreement with a witness but the KBA Board of Governors overturned that determination on appeal. Neither party appealed but the Court exercised its discretion to review under SCR 3.370(8). On review, the Court reversed, in part, and affirmed, in part, the decision of the Board of Governors, finding Unnamed Attorney guilty of violating SCR 3.130-3.4(g) but not guilty of violating SCR 3.130-3.4(a) and issuing a private reprimand.

Taxability:  See, Amos v. Commissioner, T.C. Memo. Docket No. 13391-01, 2003-329, December 1, 2003 (tinyurl.com/9d25phz).

For more reasons why Confidentiality Clauses are not a good thing, then read this Article from the American Bar Association:  “Confidentiality in Settlement Agreements Is Bad for Clients, Bad for Lawyers, Bad for Justice”

Do what you may, but hope this spurs some thoughts and maybe even some DOI complaints when necessary.

Now, there are more, many more traps in settlements, and this only scratches the surface.  And much can be said about Coots vs. Allstate and UIM releases and notices.  But that’s another day.

Case Notes: Another Court of Appeals, Post-Shelton, “open and obvious”, slip and fall, jury question, question – Ward vs. JKP Investments LLC and James Kevin Porter, COA Published 1/23/2015

Attorneys representing the injured claimants on the appeals in the Shelton v. Kentucky Easters Seals and Dicks Sporting Goods vs. Webb, both argued on same date. From Left to right - Kelly Spencer &  Brad Slutskin for Betty Webb, Joe Pepper for Wilma Jean Shelton, and Kevin Burke on Amicus Brief for Kentucky Justice Association

Attorneys representing the injured claimants on the appeals in the Shelton v. Kentucky Easters Seals and Dicks Sporting Goods vs. Webb, both argued on same date.
From Left to right – Kelly Spencer & Brad Slutskin for Betty Webb, Joe Pepper for Wilma Jean Shelton, and Kevin Burke on Amicus Brief for Kentucky Justice Association

The title of this post says it all, and to put it in perspective, I will lead with Judge Maze’s dissent from the majority in this decision (Judges Vanmeter and Kramer (formerly Moore)).  I was present during the oral arguments before the Supreme Court of Kentucky, have read the triad of decisions by SCOKY, and most unabashedly must confess Judge Maze, in my humble opinion, got it right.

And, when it comes to the human mind and foreseeability, I refer you to the book “the invisible gorilla” by Christoper Chabris and Daniel Simons.

Chief Justice Minton said it best, as follows, in Shelton:

We alter the analysis performed in this and future cases of this sort such that a court no longer makes a no-duty determination but, rather, makes a nobreach determination, dismissing a claim on summary judgment or directed verdict when there is no negligence as a matter of law, the plaintiff having failed to show a breach of the applicable duty of care. This approach places the reasonable-foreseeability analysis where it belongs—in the hands of the factfinders, the jury. This approach continues Kentucky’s, along with a growing number of states’, slow, yet steady, progress to modernize our tort law and eliminate unfair obstacles to the presentation of legitimate claims. And this approach brings transparency and consistency to the decision-making and reasoning of Kentucky’s judges.

Here are the three decisions from SCOKY:

I would suspect this issue will go up to the Supreme Court for a third time.  Especially, since attorney Joe Pepper was arguing for the injured party in both Shelton vs. Kentucky Easter Seals and Janice Ward vs. JKP Investments.  And come heck or high water, my wife, Diane and I will be present again.

Janice Ward vs. JKP Investments, LLC
COA Published 1/23/2015
Opinion affirming; Jefferson Cir. Ct. (Judge James M. Shake)
VANMETER, JUDGE: Janice Ward appeals from the Jefferson Circuit Court’s order dismissing via summary judgment her personal injury action against JKP Investments, LLC. Upon review of the record and applicable law, we affirm.

* * *

The Jefferson Circuit Court’s order is affirmed.



MAZE, JUDGE, DISSENTING: I respectfully dissent. Though I find no fault with my colleagues’ summation of current premises liability law in Kentucky, I nevertheless believe that law compels a different result in the present case.

Following an initial attempt in Kentucky River Medical Center v. McIntosh, 319 S.W.3d 385 (Ky. 2010), our Supreme Court recently continued its efforts to square Kentucky’s premises liability law with the Commonwealth’s adherence to the doctrine of comparative negligence. Most notably, in Shelton v. Kentucky Easter Seals Society, Inc., 413 S.W.3d 901, 904 (Ky. 2013), the Supreme Court stated its intention to “alter the analysis performed in this and future cases of this sort such that a court no longer makes a no-duty determination but, rather, makes a no-breach determination” and to place “the reasonable-foreseeability analysis where it belongs-in the hands of the fact-finders, the jury.” The impact of the Court’s reasoning in Shelton, and even Dicks Sporting Goods, Inc. v. Webb, 413 S.W.3d 891 (Ky. 2013), on summary judgment in premises liability cases could hardly have been greater.

In its opinion in the present appeal, the majority contends that because the condition of the stair was not concealed, and because the plaintiff failed to observe its condition throughout her previous trips up and down the stairs, the risk posed by the crumbling step was not unreasonable. Hence, my colleagues conclude that “reasonable minds cannot differ or it would be unreasonable for a jury to find breach or causation” and that summary judgment was appropriate.

Due to the aforementioned changes in premises liability law, I must disagree with my colleagues, as I believe the case requires a jury’s determination.

The Supreme Court’s decision in Shelton expressly eliminated much of the emphasis on a condition’s “open and obvious” nature, removing it as a fact which, if shown, would absolve a defendant of his duty and placing it as a mere factor to be considered in determining breach and causation. This shifted the analysis from one of legal calculation to one of factual determination only to be summarily ended when reasonable minds could not differ as to breach and causation. I proffer that this is not the case.

Rather, in light of our Supreme Court’s decision in Shelton, I contend that the questions of foreseeability, Janice’s attention or inattention to the condition of the step and where she was stepping, and the open and obvious nature of the step must remain to inform a jury’s analysis of the defendant’s breach and even the comparative fault of the parties in this case. While the Supreme Court announced that summary judgment remains a viable possibility in premises liability cases, it is undeniably more difficult to obtain after Shelton. This being the case, and on these facts, I believe it was inappropriate for the trial court to grant summary judgment, and that the matter must proceed to a jury.

Continue reading for the entire text of the COA decision.

Case Notes: A River Runs Through It in Jurisdiction issues in case involving medical treatment in Louisville but followup surgery across the Ohio River (Cooper vs. Dr. Ajith Nair, Kentuckiana Pain Specialists and Metro Specialty Surgery Center, COA NPO 1/9/2015)


Screenshot capture from Google Maps.

Screenshot capture from Google Maps.

This decision highlights what the risks are when you select a Louisville physician who then ships you across the river to Indiana for surgery (where there is more favorable medical malpractice protection for the doctor but a most tortuous path for those who have been injured when trying to get their lives back from a doctor’s mistakes).  The doctors say it keeps their costs down by operating in Indiana, but another way to look at it is that it frustrates the patient’s care and needs, especially when the procedure is believed to have been botched.

Here’s the case and a recommended read for the limits of prosecuting medical negligence claims when a river runs through it.  Note, the decision indicates the actual act of negligence arose from the surgery in Indiana which has a two year statute of limitation with Kentucky having a one-year statute.  The lawsuit was filed in Kentucky on the eve of the one year Kentucky SOL (statute of limitation), and the trial court ruled nearly a half-year prior to the two-year SOL for Indiana.  Nothing was said in this opinion whether they was concurrent or subsequent filing in Indiana, and one can clearly understand the fight to stay in the Commonwealth to avoid the harsh and nearly insurmountable obstacles to recovery through the Indiana medical malpractice system.  Thus, the results might not be so harsh as originally suspected if there was concurrent filing in Kentucky and Indiana.  And, this my friends is why medical malpractice prosecution and defense is not for the faint hearted, and why the traffic snarls are not the only reason to stay on this side of the river when it comes to medical treatment.

And, of course, these litigants have yet to address the choice of law issues in this one, and will still have to navigate how the office visits and treatment might allow personal jurisdiction over Dr. Nair and Kentuckiana Pain Specialists.

Medical Negligence.  Venue and in personal jurisdiction re Indiana surgery center; Long Arm Statute (interesting read since physicians treated plaintiff in Louisville, but physician performed surgery in Indiana at the Metro Specialty Surgical Center)

Teddy Cooper vs.  Dr. Ajith Nair, M.D.
COA NPO 1/9/2015
Affirming in part, vacating in part and remanding;  Jefferson County

Teddy Cooper and Lori Cooper, his wife, appeal from the order of the Jefferson Circuit Court dismissing their negligence action against Dr. Ajith Nair; Kentuckiana Pain Specialists, P.S.C.; and Metro Specialty Surgery Center, L.L.C. On appeal, the Coopers argue that the trial court erred in determining that Jefferson County was not the proper venue for their claims and that the court lacked in personam jurisdiction over Metro Specialty Surgery Center, a business entity organized under the laws of Indiana and domiciled there. Having reviewed the record and the arguments of counsel, we affirm in part, vacate in part, and remand.

In this case, a Hardin County resident was treated by Dr. Nair at Kentuckiana Pain Specialists for 22 separate visits for low back complaints, but has back surgery in Indiana at the Metro Specialty Surgery Center.  One day before the one-year anniversary of the surgery, Cooper filed suit in Jefferson County against Dr. Nair, Kentuckiana Pain, and Metro Specialty Surgery Center claiming they deviated from the standard of care.  What was not included in the complaint was the basis for jurisdiction over Metro Surgery who raised personal jurisdiction and venue in defense.  It was not disputed that the med-mal claim was based upon the Indiana surgery.

Judge Bisig, Jefferson Circuit Court, dismissed the claims against Metro Surgery for lack of jurisdiction and dismissed the claims against Dr. Nair and Kentuckiana Pain for lack of venue.

Jurisdiction was noted to be a two-step process.   First was jurisdiction authorized under the long arm statute?  Second, does jurisdiction comport with federal due process.

While the Coopers are required to set forth the necessary facts supporting a finding of jurisdiction, they failed to identify to the trial court which of these circumstances was relevant to its  determination. Nor have they offered any basis for the exercise of  personal jurisdiction in their brief on appeal. Instead, the Coopers argue that they are entitled to an opportunity to conduct further discovery since they adduced evidence sufficient to show: that Dr. Nair is an agent of Metro Specialty Surgery Center; that other Kentucky doctors have a relationship with the surgery center; and that the surgery center maintains contact and does business with Kentucky patients. The Coopers contend that the trial court erred by denying them the opportunity to conduct further discovery with respect to these issues.

The Court of Appeals in an opinion written by Judge Combs concluded there was no personal jurisdiction over Metro Specialty Surgery Center.

It is undisputed that Metro Specialty Surgery Center is an Indiana business entity with its principal place of business in Jeffersonville, Indiana. It is not registered with the Kentucky Secretary of State, and it is not authorized to conduct business in the Commonwealth. In fact, given the breadth of services that it offers on an outpatient basis, it is specifically prohibited from conducting business here. It is undisputed that the surgery center  as not involved with the care and treatment that Teddy Cooper was offered or  provided in the Commonwealth. The surgery center provided care to him only  in Indiana. The surgery center does not supply goods nor does it contract to supply goods in the Commonwealth. It has no agents or employees working on its behalf in Kentucky. It maintains no office in Kentucky; it does not insure any party in the Commonwealth; it does not own property here; and the Coopers have never alleged that it caused tortious injury here. Under these circumstances, we  conclude that the requirements of our long-arm statute have not been satisfied.

However, with regard to personal jurisdiction over Dr.  Nair and Kentuckiana Pain Specialists, the COA vacated the order of the Jefferson Circuit Court “dismissing the claims asserted by the Coopers against Dr. Nair and Kentuckiana Pain Specialists and remand for further proceedings. However, based upon the foregoing analysis, we affirm the order of the court dismissing the claims asserted by the Coopers against Metro Specialty Surgery Center. ”

[continue reading below for the entirety of the appellate opinion]

Elections: Michael O’Connell and Karen Faulkner, Candidates for Jefferson County Attorney, will debate at the LBA on March 28


Elections tend to favor the incumbent in any office.  And greatly favor the Jefferson County attorney who has so many tools at his disposal just to keep his name in the news that it is very, very disturbing.  But, that’s politics.

Well, the Jefferson County Attorney election is a very important election this year as the incumbent seems to be in the news with accusations flying that he is violating the independence of the courts, using his attorneys as campaign contributors for job security, and even attempting to vicariously benefit from a court-packing scheme by allowing his attorneys to run for judicial office.  The most damaging news might just be the Kentucky Bar Association’s reprimand issued against Michael O’Connell for violating the ethics required of lawyers.  

Well, O’Connell is being challenged by Karen Faulkner, and there is a debate coming up where they will be side by side.  Age and years in office should favor the old war horse O’Connell, especially since he has been weathering the bad news stories from the Courier-Journal with no loss in his aggressiveness to promote his own agenda.

If you are interested in how to the two pair up, there is a debate sponsored by the Louisville Bar Association on March 28, 2014.  Here is the bar associations post.  Note that Joe Sonka the moderator, and if you want your question asked and answered then see the info below.

The LBA’s Public Interest Section will be hosting a debate on March 28 for the Democratic nominees for Jefferson County Attorney, Mike O’Connell and Karen Faulkner.

Joe Sonka, debate moderator and LEO news editor, will begin his questions at noon at the Louisville Bar Center.

Questions for the candidates may be submitted to Public Interest Section Chair Soha Saiyed at ssaiyed@laslou.org through 5 p.m. on Monday, March 24.

The debate is free and open to the public, but reservations are requested. Lunch will be provided with advanced registration. To RSVP, CLICK HERE or contact Lisa Anspach at lanspach@loubar.org or (502) 583-5314. 


For more information on Karen Faulkner you can go to Karen Faulkner’s web site – Faulkner for Jefferson County Attorney.

I was unable to locate O’Connell’s campaign site using a simple Google(tm) search using “michael o’connell web site for county attorney”, but his free web site as the County Attorney can be found here.


Mike O’Connell, Jefferson County Attorney, and the Price of “Loyalty”.

“It is money, money, money! Not ideas, not principles, but money that reigns supreme in American politics.”

 Robert C. Byrd

A recent op-ed from the Courier-Journal discussed how elected government officials in  Jefferson County have expected their employees to contribute financially to their re-election coffers.  For example, the Jefferson County Attorney’s office seems to have a long history of expected contributions from the attorneys working in that office going back as far as Bruce Miller.  Basically,  money has been contributed over the years by attorneys employed at the Jefferson County Attorney’s Office to assist their boss’s election efforts.  A practice that is not new, not novel, not regulated, and worse yet apparently not acknowledged beyond a simple denial by the current occupant of that political office – Mike O’Connell.

The Courier-Journal calls attention to this practice and asks its readers if this is what we want or expect from a County Attorney.  Whether called campaign contributions or  tokens of employee “loyalty”, should it continue?  

As an Army Judge Advocate and Army Officer occupying a position of trust and public service, we were held to a standard even higher than the criminal and ethical codes. Accepting money from those who work for you was and is absolutely prohibited.  We were expected to even avoid even the  “appearance of impropriety”.

The Jefferson County Attorney’s Office has a large staff.  A very large staff with over 400 attorneys.  All of us have read the stories on how difficult it has been for government lawyers to pay their school loans and raise a family on their government salaries with some even delivering pizza on their own time in the evenings.

Well, the Courier-Journal has issued the challenge and concluded its opionion-editorial piece with the following:

Mr. O’Connell can deny he seeks money from employees. But he can’t deny the appearance that employees feel pressured to give.

His current fundraising may not violate the law. It may skirt the Metro ethics ordinance.

But like so many things in politics, it doesn’t pass the smell test.

So why not limit contributions from employees? Or just stop taking them?

That way his employees could devote their full loyalty to the public and keep all of their hard-earned paychecks for doing so.

Sometimes the Courier-Journal irritates me with the reactionary tone of their editorials and even their stories.  However, the position that the news media occupies as the “Fourth Estate” aka the “press” can never be understated.  And although everyone seems to fawn over the new digital age, there is just some power and authority found in the written word on a piece of paper that is not found in audio or video.

You may not always like or appreciate the stories, but most of us will acknowledge the value they provide in accountability with the gathering of facts, interviews of those involved, and a marshaling of all that has been accumulated with a conclusion and opinion which you can either agree or disagree.  Those of us who blog part time owe a debt to the hard work that it takes to uncover these stories which allow bloggers like myself to throw in out two cents worth of opinion.  Thank you.

Here is the op-ed piece.  Hopefully, the Courier will keep it available on-line for some time.

Mike O’Connell’s Loyal Employees

Ah, for the good old days of Jefferson County politics where the “2 percent” club flourished in local offices and employees didn’t have to wonder how much to donate to the election fund of the boss.

Former Jefferson County Attorney J. Bruce Miller called his request for 2 percent of employees’ pay the “Assistant County Attorney Voluntary Fund.”

And former Jefferson County Sheriff Jim Greene made it easy by tucking envelopes into the paycheck of each employee that bore their names and a calculation of 2 percent of their pay.

But times have changed.

Today, it seems heavy-handed, if not outright wrong, for elected bosses to suggest employees must donate a fixed amount for the privilege of keeping their jobs.

So Jefferson County Attorney Mike O’Connell has come up with a new euphemism for employee support, calling it “loyalty.”

“I tell people that I hire that I seek competency, diligence and loyalty,” he told The Courier-Journal’s Andrew Wolfson. “And loyalty means they support me and this office in all things we do, including my election.”

His staff of nearly 400, including 120 prosecutors, has been amazingly loyal, according to campaign finance records of Mr. O’Connell, a Democrat who is running for re-election to his second full term.

Nearly half of the $201,000 Mr. O’Connell has amassed since his last election in 2010 came from assistant county attorneys and other employees in his office.

And this was for a race in which he didn’t even have an opponent until lawyer Karen Faulkner stepped forward one day before last week’s filing deadline.

Click on the above heading for the rest of the CJ Post.


Government Closings for Monday January 6, 2014 in Jefferson County

From the  Wave 3 News web site, the following government closings are noted for Louisville and Jefferson County, Kentucky.  I have no information for other counties:



UPDATED 5:09 am Monday Morning:          

The Courier-Journal that hit my box this morning had the following regarding closings indicating the courthouse in Jefferson County will have some services open today (but no mention was made of court closings in on-line version as of this writing…. yet, but I will take Wave3’s word for it):

Several public offices also announced closings, including Jefferson County driver’s license branches.  The Jefferson County office of the circuit court plans to open at 11:30 a.m. today with limited staff to process bond, mental inquest warrants and domestic violence petitions.

NEWS: Supreme Court of Kentucky Receives a “Failing” Grade on the Financial Disclosure Requirements for the Justices

2013.12.07 BlackboardKentucky gets a failing grade on its report card published by the Center for Public Integrity which evaluated the disclosure rules for judges in the highest state courts nationwide in story entitled “Justice Obscured”. This report was addressed locally at WFPL.org and in the Courier Journal, neither of which could be called “hard hitting” stories but simply light-weight digests from the report. The report using a set of reasonably objective criteria found that Kentucky was among the 43 states who received failing marks in the area of financial disclosures at our highest court.  Worse yet, Kentucky was near the bottom on the numerical ratings receiving a score of 15 out of a possible 100 with only Idaho, Montana and Utah receiving lower scores.  The highest score went to the federal judiciary with a score of 84, followed by Califoria with a “77”. For example, the Justices are NOT required to disclose his/her household income; the justice’s investments, gift and reimbursements for the the justice, spouse or dependent children; or liabilities of the justice, spouse or dependent children.  In those areas our Justices received a “zero” out of a possible 80 points!  Not all was dark for the Supremes; they received a 10/10 on accountability for filing and 5/10 for public access to the filing record. Individual financial reports for each of the sitting Kentucky Supreme Court Justices for 2012 are available as follows:

Some extracts from their web page discussing the report (Center for Public Integrity) relative to Kentucky are as follows:

In Kentucky, a state that earned just 15 points, judges are not required to provide the names of companies in which they have a financial interest. They report family stock ownership in companies in broad categories such as “insurance,” “entertainment” and “energy.” * * * “Forty-seven other states have them. What’s wrong with you guys?” asked Les Abramson, a University of Louisville law professor who specializes in judicial ethics. * * * “The appearance of impartiality is as important as the fact of impartiality,” said Abramson, the Louisville law professor, who is married to Kentucky Supreme Court Justice Lisabeth Abramson. “It’s really about how the public perceives the judiciary.”

Here is a summary on Kentucky’s report card at CPI with links to each justice’s financial disclosures:

The Center for Public Integrity evaluated the disclosure rules for judges in the highest state courts nationwide. The level of disclosure in the 50 states and the District of Columbia was poor, with 43 receiving failing grades, making it difficult for the public to identify potential conflicts of interest on the bench. Despite the lack of information in the public records, the Center’s investigation found nearly three dozen conflicts, questionable gifts and entanglements among top judges around the country. Here’s what the Center found in Kentucky:

how it rankstotal score


There are few strengths to tout about Kentucky’s financial disclosure requirements. However, the state does attach strong enforcement measures to its financial disclosure rules. Supreme Court justices who fail to file or who report fraudulent information risk losing their seat on the bench.


Kentucky’s financial disclosure form includes sections in which judges must disclose stocks, real estate and outside employers, but it also tells judges that they are “not required” to provide names of companies in which they have a financial interest. By omitting company names, it is practically impossible to identify possible conflicts of interest. Additionally, Kentucky fails to ask for information about the gifts or reimbursed expenses its judges receive.


Justice Will Scott’s form reveals ownership interests in dozens of tracts of Kentucky real estate, many of which he leases to coal, oil and natural gas companies. Unlike his colleagues, Scott does name the companies to which he leases land. In a phone interview, Scott said he would welcome more robust financial disclosure requirements. He said it would be important to know the names of companies because the disclosures are “a search tool for people coming up on appeal.” As for his own real estate holdings, Scott said he tries to stay aware of his oil and gas leases and to recuse himself in any cases in which companies have paid him royalties.

SCOKY responded to the story through its spokeswoman, Leigh Anne Hiatt:

Regarding the results of the CPI report, Kentucky is one of about 30 states in which the state legislature determines the financial disclosure information required of justices and judges. All Kentucky justices and judges must file annual financial disclosure information with the Kentucky Registry of Election Finance pursuant to Kentucky statute. The financial disclosure form can be found on the website of the Kentucky Registry of Election Finance. The General Assembly would have to authorize changes to these disclosure requirements. In addition, judges adhere to ethical standards as defined in the Kentucky Code of Judicial Conduct, which require judges to recuse themselves from cases in which they have a conflict of interest.

However, the glaring inadequacy of this response is that relying upon the Kentucky legislature as your standard for disclosure is not exactly aiming for the highest rung on the bar, considering it is the home of “Boptrot” and recent suits and allegations pertaining to harassment by some members of the legislature.

Voluntary disclosure by simple agreement of the seven justices would be a simply solution to building trust and confidence in an office of public trust and promoting the transparency of sitting justices.  Kentucky has judicial elections, and these campaigns can often cost more money than the justice (or judges) would make in a year’s salary.  Even with each and every campaign contribution above $100 reported and made a matter of public record, it is still not above public scrutiny and questions.  See, recent blog post. Montana’s Chief Justice Mike McGrath deftly handled the issue by simply responding per the Bozeman (Montana) Daily Chronicle that “Montana Supreme Court justices should not have to publicly disclose their personal financial interests or those of their families because the high court already follows a strict code to avoid potential conflicts, . . .”  [I could not tell if this was a quote of the justice or just a translation, but in any event this is a quote from the Daily Chronicle.

It’s the judge’s responsibility to disqualify himself or herself from presiding over a case in which he or she has a financial stake, McGrath said.If a judge fails to do so, the litigants who bring cases to the state Supreme Court are likely to know if a justice has a conflict, he said. “The parties or the lawyers for the parties or somebody related to the parties is going to be aware of those interests and will file a complaint with the Judicial Standards Commission,” he said. Les Abramson, a professor at the University of Louisville’s Brandeis School of Law, said public disclosures are necessary to determine whether a conflict or even the appearance of a conflict exists, he said. “Sometimes accidents happen and a judge simply may not recognize the circumstances which under the code would suggest serious consideration of disqualification or recusing themselves,” Abramson said. People involved in court cases generally don’t have access to corporate records that show whether a judge or family member has stock holdings in a company, he said. “I just think there is a problem with the chief justice’s reasoning in thinking every litigant would have access to the information he’s talking about,” Abramson said.
I agree with Professor Les Abramson at our own University of Louisville Brandeis School of Law, and would go one step further and remember that United States Supreme Court Justice Louis Brandeis addressed the issue of transparency and disclosure succinctly:
Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman.

  • Other People’s Money—and How Bankers Use It (1914)
[N]o law, written or unwritten, can be understood without a full knowledge of the facts out of which it arises, and to which it is to be applied.

  • The Living Law, 10 Illinois Law Review 461, 467 (1915-16).

The general rule of law is, that the noblest of human productions — knowledge, truths ascertained, conceptions, and ideas — become, after voluntary communication to others, free as the air to common use.

Or to extend the following precept found in Paul’s letter to the Corinthians @ 1 Corinthians 6:12-

“All things are lawful for me,” but not all things are helpful. “All things are lawful for me,” but I will not be dominated by anything.

Just because the legislature provides minimal mandatory disclosures and which is thus “lawful”, simple adherence to this minimal standards are not helpful.  Do not be dominated by them; disclose more and let others at least know what transpires behind the bench.

More extensive disclosures can be promoted by the Chief Justice; not just for the justices  but for all judges in elective office.  It’s just that simple.