Gerry Spence: “Art, Life and the Law” Part Ii from the Wyoming Chronicle

Also a little on the Trial Lawyer's College

The story of the lawyer who could not lose. In part one of our interview with Gerry Spence, host Richard Ager speaks with Spence about his life and famous cases and with 50 attorneys from around the country who are enrolled in Spence’s Trial Lawyer’s College located outside Dubois, Wyoming. Be prepared to be surprised by some of the teaching methods at the college.

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

COAPanel.Lambert.Jones.Acree

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?]

Video: Irving Younger’s Classic – “Ten Commandments of Cross-Examination”

 

Some older folks will recall this  classic video from renown trial lawyer, teacher, and advocate, Irving Younger entitled “The Ten Commandments of Cross-Examination”.   It was a classic then, and it remains so today.

Experienced trial lawyers may disagree with the commandments as absolutes, but none will disagree with their value.

This video, together with James McElhaney’s, tapes on cross-examination are my two favorites on this topic.

I had been trying to relocate this video for years, and suddenly it pops up on one of my internet searches.   Here’s the video from the UC Hastings College of Law’s YouTube channel.  Should it evaporate, then let me know.  I saved a copy of it and can republish it on my YouTube channel if need be.

Download (PDF, Unknown)

Standard of Review: Rule 11 Sanctions Imposed by Trial Court

Persels & Associates LLC v. Capital One Bank
C
OA PUB 2/14/2014 (Presiding Judge Clayton)
Daviess County, Trial Judge Joseph Castlen, III

CLAYTON, JUDGE: Persels & Associates, LLC appeal the Daviess Circuit Court’s findings and imposition of sanctions based on the trial court’s determination that the respondents violated Kentucky Rules of Civil Procedure (CR) 11. After careful consideration, we affirm.

Appellate review of a trial court’s actions related to CR 11 requires a multi-standard approach, that is, a clearly erroneous standard to the trial court’s findings in support of sanctions, a de novo review of the legal conclusion that a violation occurred, and an abuse of discretion standard on the type and/or amount of sanctions imposed. Clark Equipment Co., Inc. v. Bowman, 762 S.W.2d 417, 421 (Ky. App. 1988). 

The next issue consists of a de novo review of the legal issues involved in the determination that a violation has occurred under CR 11. We begin by observing that CR 11 does not provide substantive rights to litigants but is a procedural rule designed to curb abusive conduct in the litigation process. Lexington Inv. Co. v. Willeroy, 396 S.W.3d 309, 312 (Ky. App. 2013).

The legal questions are answered by CR 11 itself. The rule provides:

Every pleading, motion and other paper of a party represented by an attorney shall be signed by at least one attorney of record in his individual name, whose address shall be stated. A party who is not represented by an attorney shall sign his pleading, motion, or other paper and state his address. . . . The signature of an attorney or party constitutes a certification by him that he has read the pleading, motion or other paper; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.

The plain meaning of the rule is that pleadings must be signed by the attorney that prepares them.

Persels’ practice of providing limited representation to its clients does not abrogate this obligation under the Kentucky Rules of Civil Procedure nor did Persels offer any legal authority from Kentucky or otherwise to support its position that limited representation changes the effect of this civil rule or any other. Moreover, because the clients entered into a contract that specified Persels attorneys would not sign pleadings or make an appearance, it is not sufficient to change the requirements under CR 11. It is indisputable that a court cannot enforce an illegal contract. S.J.L.S. v. T.L.S., 265 S.W.3d 804, 821 (Ky. App. 2008). Any contract that ignores or changes the application of the civil rules is not legal. Thus, in contravention to Persels’ position, we hold that pursuant to CR 11, the attorneys who prepared the pleadings must sign them.

April 2013 – Topical Summary of Kentucky Court of Appeals Published Decisions with Digests and Links to Full Text (prepared by the AOC)

Another Example of Screen Capture of a Google Aerial View of the Streets, with names of streets, then using Air Sketch (an iTunes App for the iPad) to allow use of a finger or stylus to show path of car

Another Example of Screen Capture of a Google Aerial View of the Streets, with names of streets, then using Air Sketch (an iTunes App for the iPad) to allow use of a finger or stylus to show path of car

For more information on Air Sketch by qrayon, then click here for their web site.

Screen Shot 2013-10-21 at 10.04.41 PMNote that using an iPad (with the Air Sketch App, an Apple TV, a wireless connection, Kanex Adapter, and  a tv, projector) at mediation, arbitration, deposition or court not only allows the “marking” of the photo or other image file, but you can display that image over the wireless network to other users laptops or onto a television screen or projector connected using wifi AND an Apple TV connection.

My thanks to my good friend Finis Price who passed away last year for this tech tip.

 

Click here for April 2013 monthly summaries.

Click here  for entire listing of COA Monthly Summaries of Published Decisions.

AGENCY 

Kindred Nursing Centers Ltd. Partnership v. Leffew
2011CA002067
04/19/2013 2013 Released for Publication 

Opinion by Chief Judge Acree; Judges Keller and Moore concurred. The Court of Appeals affirmed the denial of a motion to compel arbitration in a negligence action against appellant, a nursing home, after concluding that the arbitration agreement at issue was invalid. The Court first held that the Cabinet for Health and Family Services, a judicially appointed agent of a nursing home resident with limited authority to act on his behalf, could not ratify an arbitration agreement signed by the resident’s son without authorization on behalf of the resident, who never regained competence prior to his death. The Court noted that only a principal is permitted to retroactively sanction the unauthorized actions of an agent. Because the resident, rather than the Cabinet, was the principal in whose name the agreement was signed, only the resident could subsequently ratify the action of his son. The Court next held that the circuit court properly declined to estop the son from disclaiming the arbitration agreement despite the son’s alleged representations to nursing home administrators that he possessed the authority to execute it on behalf of his father. The “power of attorney” document relied upon by the nursing home was plainly limited in scope and did not confer upon the son the authority to enter into the arbitration agreement. The Court finally held that ordinary state law principles of contract, agency, and estoppel were not preempted by the Federal Arbitration Act (FAA) and could be used by the circuit court to assess the validity of the arbitration agreement.

APPEALS

Carroll v. Wright
2012CA000787
04/05/2013 2013 WL 1365941
Rehearing Pending

Opinion by Judge Stumbo; Chief Judge Acree and Judge Combs concurred.

The Court of Appeals reversed a trial verdict and judgment and remanded for retrial on the issue of damages in this negligence action after holding that appellant was entitled to a directed verdict as to liability. Although the Court had held in a previous appeal in this action that appellant was not entitled to a directed verdict as to liability, the Court was not constrained by the “law of the case” doctrine to make the same holding in a subsequent appeal due to new evidence produced at the second trial that was directly relevant to causation and liability. Uncontroverted testimony indicated that appellee lost control of his tractor trailer, that it slid into oncoming traffic causing the accident and appellant’s resulting injuries, and that in so doing appellee had violated statutory and common-law duties to stay in his lane and to safely operate his vehicle. This new evidence required a directed verdict as to liability in favor of appellant.

CORPORATIONS

Smith v. Bear, Inc.
2010CA001803
04/05/2013 2013 WL 1352148 DR Pending
Opinion by Judge Nickell; Judges Combs and Taylor concurred.

The Court of Appeals affirmed in part, reversed in part, and remanded as to a summary judgment and award of damages in an action where a fuel provider filed suit against a corporate customer and its sole shareholder seeking payment for unpaid fuel charges and accrued interest. The Court affirmed summary judgment establishing personal liability for unpaid corporate debts against the sole shareholder of the corporation under the doctrine of constructive trust where the shareholder had received substantial corporate assets immediately prior to dissolution and after debts were accrued. However, the Court reversed and remanded the grant of summary judgment against the corporation on the basis that the corporation was purportedly represented below by the shareholder, a non-attorney, in contravention of established law. The Court also held that a jury trial was not required as the only triable issues were grounded in equity and the parties did not agree to a trial by jury. The Court concluded that the amount of damages awarded was appropriate and found no error in the circuit court’s award of attorneys’ fees under the circumstances.

CRIMINAL LAW

Commonwealth v. Robertson
2011CA002159
04/19/2013 2013 WL 1688357 Rehearing Pending
Opinion by Judge Maze; Judge Thompson concurred; Judge Stumbo concurred by separate opinion.
The Court of Appeals affirmed an order overturning appellee’s convictions due to ineffective assistance of counsel under RCr 11.42. The Court first held that comments by the prosecutor during closing argument violated appellee’s right not to testify and that the failure of appellee’s trial counsel to object to those comments constituted ineffective assistance. The Court next held that the presumption of prejudice established in United States v. Cronic, 466 U.S. 648, 104 S. Ct. 2039, 80 L.Ed.2d 657 (1984), applied to counsel’s performance during appellee’s juvenile transfer hearing given counsel’s admission that he had failed to prepare whatsoever for the hearing or to challenge blatantly incorrect testimony given during it. The Court held that because of counsel’s deficient performance, the transfer hearing’s result was “presumptively unreliable” and invalid; moreover, this presumption could not be rebutted by a showing of harmless error. The Court further held that in such instances and where a defendant’s current age prohibited his return to the juvenile system, the proper remedy, as a general rule, is the remand of the matter for a de novo review before the trial court regarding whether transfer was appropriate under Kentucky law and whether the court had jurisdiction over the case. However, the Court ultimately concluded that the “law of the case” doctrine prevented the trial court in this case from considering the appropriateness of the juvenile transfer because the Supreme Court had decided the question in an earlier appeal.

Commonwealth v. Vibbert
2012CA000231
04/12/2013
397 S.W.3d 910
Opinion by Judge Dixon; Judge Caperton concurred; Judge Combs concurred in result by separate opinion.
The Court of Appeals reversed and remanded an order dismissing an indictment against appellee for first-degree possession of a controlled substance. The Court held that KRS 218A.14151 must be interpreted as limiting deferred prosecution agreements for felonies under KRS 218A.1415 to the discretion of the Commonwealth’s attorney and the circuit court. Thus, neither the county attorney nor the district court had authority to authorize a deferred prosecution agreement, and the Commonwealth was not bound by an agreement negotiated by the county attorney and approved by the district court.

Given v. Commonwealth
2011CA002316
04/12/2013 2013 WL 1488996 DR
Opinion by Judge Clayton; Judges Keller and Thompson concurred.
The Court of Appeals affirmed an order granting the Commonwealth’s motion to correct appellant’s sentence. Language in a judgment reflecting the amendment of a fourth-offense DUI to a third-offense DUI was held to be a clerical error under RCr 10.10 where the plea offer explicitly stated that appellant was pleading guilty to fourth-offense DUI; appellant signed the document and acknowledged that he understood its terms; appellant signed a written guilty plea stating his intention to plead to fourth-offense DUI; and appellant stated in open court that he was knowingly and voluntarily pleading guilty to fourth-offense DUI and third-offense driving on a DUI-suspended license as amended by agreement.

Lemaster v. Commonwealth
2012CA000704
04/19/2013 2013 WL 1688206
Released for Publication
Opinion by Judge Combs; Judges Moore and Taylor concurred. The Court of Appeals dismissed an appeal in which appellant was challenging the revocation of his probation.
The Court held that because appellant was a fugitive who had never reported to the Department of Probation and Parole for supervision, he was not entitled to call upon the Court’s resources for determination of his claims. Therefore, dismissal was merited.

Lewis v. Commonwealth
2012CA000244
04/19/2013 2013 WL 1688329
Released for Publication Opinion by Judge Lambert; Judges Caperton and Maze concurred.
The Court of Appeals affirmed a judgment finding appellant guilty of two counts of second-degree robbery and of being a first-degree persistent felony offender. Citing to KRS 515.030, the Court held that evidence that appellant engaged in conduct implying the threat of physical force was sufficient to support his convictions even in the absence of an express threat. Appellant kept his hand in his pocket during the robbery and even went so far as to prop his concealed hand up on a counter, implying that his hand contained a gun which would be discharged if the victim failed to comply. The victim also testified that appellant’s behavior gave the impression that he had a gun, and that the victim was in fear for his life.

Moran v. Commonwealth
2010CA001493
04/26/2013 2013 WL 1776092
Released for Publication Opinion by Judge Combs; Judges Nickell and Taylor concurred.
On remand from the Supreme Court, the Court of Appeals affirmed a judgment convicting appellant of fourth-degree assault. Citing to Graves v. Commonwealth, 384 S.W.3d 144 (Ky. 2012), the Court held that any error in a jury instruction containing mixed states of mind was invited – and thereby waived – by defense counsel’s affirmative agreement to such instruction, his active assistance in the composition of an answer to a jury question which informed the jury it was not required to specify which mens rea it had applied, and his statement that he would not argue a claim of non-unanimous verdict on appeal if the jury failed to specify the mens rea it had applied.

Reilly v. Commonwealth
2011CA001608
04/19/2013 2013 WL 1688381
Rehearing Pending Opinion by Judge Thompson; Judges Dixon and Moore concurred.
The Court of Appeals affirmed the circuit court’s denial of appellant’s motion to enter the deferred prosecution program provided for in KRS 218A.14151. The Court held that trial courts lack authority under the statute to place a defendant in the deferred prosecution program without the prosecutor’s consent. KRS 218A. 14151(1)(a) expressly states that the prosecutor must agree to deferred prosecution and, therefore, entry into the program is solely within the prosecutor’s discretion. However, when deferred prosecution is denied, KRS 218A.14151(2) requires the prosecutor to take a position on probation and, if opposed, state substantial or compelling reasons on the record “why the defendant cannot be safely and effectively supervised in the community, is not amenable to community-based treatment, or poses a significant risk to public safety.” The Court further held that trial courts are without authority to question the prosecutor’s motives when it rejects a request to defer prosecution or to order probation without the prosecutor’s agreement.

FAMILY LAW

Ensor v. Ensor
2010CA001660
04/12/2013 2013 WL 1488999
Rehearing Pending Opinion by Judge Nickell; Judges Moore and Thompson concurred.
The Court of Appeals affirmed in part, reversed in part, and remanded a judgment concerning valuation and division of property, maintenance and the assessment of post-judgment interest in a dissolution action. The Court held that the circuit court erred in including a Grantor Retained Annuity Trust in the marital estate. Where there was no showing of a fraudulent or dissipative transfer, the creation and funding of an irrevocable estate planning trust removed the transferred assets from the marital estate and, therefore, wife did not retain an equitable interest in the trust assets.

J.K. v. N.J.A.
2012CA000897
04/12/2013 397 S.W.3d 916
Opinion by Judge Nickell; Judges Moore and Taylor concurred. The Court of Appeals affirmed an order of contempt entered in a paternity action based upon mother’s refusal to submit to genetic testing ordered on four separate occasions for both mother and child. The Court first held that the presumption of paternity set forth in KRS 406.011 did not deny the purported biological father the right to a finding of whether he was, or was not, child’s biological father. The Court then noted that the circuit court heard sufficient testimony concerning the putative father’s claim upon which to make a determination as to standing and a request for genetic testing pursuant to KRS 406.081 and KRS 406.091(2). The Court further held that the evidence supported the circuit court’s order of contempt since mother refused to submit to genetic testing.

 

INSURANCE

Cole v. Fagin
2012CA000797
04/19/2013 2013 WL 1694758
DR Pending
Opinion by Judge Moore; Judges Nickell and Taylor concurred. The Court of Appeals reversed the circuit court’s entry of summary judgment on statute of limitations grounds in an automobile negligence action. The Court held that an automobile insurer was required under the Motor Vehicle Reparations Act (MVRA) to utilize the insured’s basic reparations benefits (BRB) coverage prior to medical payments (MedPay) coverage to pay the insured’s accrued medical expenses. Because of this, the MVRA’s two-year limitations period started to run only when the last BRB disbursement was made to the insured, even though the insurer had characterized its reimbursements to the insured as MedPay and the insured did not object to its characterization. Thus, how the reimbursements were “labeled” by the parties was ultimately irrelevant. In reaching its decision, the Court noted that there was no dispute that all accrued medical expenses could have been paid via BRB coverage. The Court further noted that allowing an insurer to apply medical expenses toward MedPay coverage, when those expenses could also have been applied toward BRB coverage, would be fundamentally at odds with the concept of “no-fault” in Kentucky.

Medlin v. Progressive Direct Ins. Co.
2011CA002258 04/05/2013 2013 WL 1365912
DR Pending
Opinion by Judge Stumbo; Judges Keller and Thompson concurred.
The Court of Appeals affirmed an order denying appellant’s motion for declaratory relief. The Court held that the circuit court correctly concluded that the Motor Vehicle Reparations Act (MVRA) only requires insurance obligors to either pay medical expenses directly to medical providers or to reimburse the insured for actual accrued economic losses. Because appellant had not personally paid any medical bills, he had not incurred any economic losses and was not entitled to be directly reimbursed. The Court further noted that appellant had been offered three options for collecting his PIP benefits: payment to appellant’s chiropractor directly; reimbursement for out-of-pocket expenses; and payment by check in an amount equal to his medical bills and with the check including his name and the name of his medical provider. The first two options are included in the Motor Vehicle Reparations Act, and the third option was pursuant to an agreement between the parties. Having declined all three options, appellant was not entitled to the declaratory relief he sought in circuit court.

JUVENILES

M.A.M. v. Commonwealth
2012CA000989
04/12/2013 2013 WL 1488509
Opinion by Judge Moore; Judge Nickell and Judge Taylor concurred.
The Court of Appeals reversed and remanded family court orders finding that appellant violated a Juvenile Status Offender Order (JSOO), that he was in contempt for doing so, that the least restrictive means was not a necessary requirement for disposition of contempt findings, and that the proper disposition for appellant’s contempt was his commitment to the Cabinet for Health and Family Services. The Court held that the juvenile’s guilty plea was invalid because the family court failed to conduct a proper colloquy under Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969), to determine whether the juvenile’s stipulation to the charges in the JSOO was voluntarily, intelligently, and knowingly entered. Moreover, the JSOO was not a valid court order because it was based solely upon allegations and not upon any actual findings made by the family court. The Court further held that the juvenile should not have been placed in the Cabinet’s custody for his contempt of court because the contempt finding was based upon the juvenile’s violation of the JSOO, an invalid court order.

S.B. v. Commonwealth
2012CA000868
04/05/2013 396 S.W.3d 928
Opinion by Judge Stumbo; Judges Keller and Thompson concurred. The Court of Appeals vacated a judgment finding appellant to be a habitual truant. The Court held that the circuit court lacked subject matter jurisdiction to make the truancy determination where there was no evidence of compliance with the statutory assessment requirements of KRS 159.140 and where there was no evidence of the child’s failure to participate that would excuse the lack of proof.

LICENSES

Doyle v. Kentucky Bd. of Medical Licensure
2011CA001915
04/05/2013 2013 WL 1352046
DR Pending Opinion by Judge Keller; Judges Stumbo and Thompson concurred.
The Court of Appeals affirmed the denial of appellant’s CR 60.02 motion. Appellant sought relief from the voluntary dismissal of his petition for judicial review of a Board order suspending and indefinitely restricting his license. The Court upheld the circuit court’s determination that appellant voluntarily chose to enter into an agreement with the Board in which he “surrendered the opportunity to argue” underlying issues about the validity of the Board’s previous suspension and revocation orders, thereby rendering moot any issues regarding the sufficiency of the evidence supporting those orders. The Court also noted that no sufficient evidence of fraud or coercion was offered which would have required the granting of CR 60.02 relief.

NEGLIGENCE

Estate of Moloney v. Becker
2011CA001773
04/19/2013 2013 WL 1688378
Released for Publication
Opinion by Judge VanMeter; Judges Nickell and Taylor concurred.

The Court of Appeals affirmed a judgment that resulted in the dismissal of an estate’s negligence action against a financial planner for damages that resulted from an allegedly defective qualified personal residence trust (QPRT) set up by the planner. The Court first held that whether the financial planner violated his common-law standard of care or the statutorily-imposed standard of care found in the unauthorized practice of law statute (KRS 524.130) when he set up the QPRT was immaterial to the issue of whether substantial evidence supported the jury’s finding that the planner’s negligence was not a substantial factor in causing an injury to the estate. The Court also concluded that the question of whether the planner’s negligence in setting up the QPRT was a substantial factor in causing the estate’s injuries was ultimately a matter for the jury. The Court finally held that the circuit court did not abuse its discretion by allowing the planner to testify regarding his previous work for the decedent.

PROPERTY

Mays v. Porter
2011CA000362
04/19/2013 2013 WL 1688480
Released for Publication
Opinion by Judge Moore. Chief Judge Acree and Judge Thompson concurred.
The Court of Appeals affirmed a judgment finding that a transfer of real property to appellants was the result of undue influence. Substantial evidence demonstrated that appellee did not wish to execute the deed of conveyance and would not have done so absent her husband’s insistence. The attorney that prepared the deed indicated that appellee attempted to ask questions regarding the deed, but that her husband did not permit her to do so prior to executing the deed. Additionally, there was evidence to show that husband had previously exerted physical force over appellee and that she refrained from going against his wishes because she feared for her safety. The Court also held that the circuit court did not err by allowing appellee to amend her counterclaim post-trial.

News: Learn Storytelling from some Storytellers at 2013 Corn Island Storytelling Fest at UofL Ekstrom Library on Oct. 11, 2013, 7:00 pm

Trog Defends Gar in the First Cave Room Trial with the transcript prepared in real time on the back wall.

Trog Defends Gar in the First Cave Room Trial
With the transcript prepared in real time on the back wall.

 

Lawyer’s have been telling stories for a long, long time.   Ever since Trog jumped to Gar’s defense at the Neanderthal Bar on Cave Run Road following the Cambrian Explosion who was found driving from the scene on his Wooly Mammoth.

How we doing  now?  Is the spoken word as a tool of understanding giving way to the digital age’s multi-media presentation at trial, mediation, or any other hearing?  Is tech taking over talking with its clicker, iPad, projector, Elmo and other devices?

Well, whatever….. But for now this year’s Corn Island Storytelling Fest will be held on Oct. 11, 2-13 in the Humanities Quadrangle in front of the Ekstrom Library.   As lawyers, we have reputations for being masters of the spoken word, but are we really good at telling stories?  Do we know the mechanics and method behind telling a story?  How do you learn?  

Well, you can read about it in Jim M. Perdue’s book ” Winning with Stories — Using the Narrative to Persuade in Trials, Speeches and Lectures” available at Trial Guides (DVD and/or Book).  Or, you can read another book by him – “Who Will Speak for the Victim“. (book only).   Not only do you get the how to, but examples.

Another option is watch and learn from non-lawyer story tellers at this year’s festival, and enjoy yourself to boot.  Click here for information on 2013 festival.

Corn Island is no longer visible but the festival for which it is named lives on. Founded by Joy and Lee Pennington, whose papers recently were placed in a special collection at the University of Louisville Library, the event continues under the direction of Colonel Bob Thompson, who has long been associated with the timeless tradition of storytelling. Plans are coming together for more stories this fall on October 11 @ 7:00pm at the lawn behind Ekstrom Library on the U of L campus..

Here is CJ’s story – Corn Island Storytelling Fest records to be housed at U of L archives