Tuesday, October 5, 2010

Persistence Pays When Dealing With the Government

Part of rebuilding New Orleans caused residents often to be challenged with the task of tracing home titles back potentially hundreds of years. With a community rich with history stretching back over two centuries, houses have been passed along through generations of family, sometimes making it quite difficult to establish ownership.

A New Orleans lawyer sought an FHA loan for a client. He was told the loan would be granted if he could prove satisfactory title to a parcel of property being offered as collateral. The title to the property dated back to 1803, which took the lawyer three months to track down. After sending the information to the FHA, he received the following reply.

(Actual reply from FHA):

"Upon review of your letter adjoining your client's loan application, we note that the request is supported by an Abstract of Title. While we compliment the able manner in which you have prepared and presented the application, we must point out that you have only cleared title to the proposed collateral property back to 1803. Before final approval can be accorded, it will be necessary to clear the title back to its origin."

Annoyed, the lawyer responded as follows:
(Actual response):

"Your letter regarding title in Case No.189156 has been received. I note that you wish to have title extended further than the 206 years covered by the present application. I was unaware that any educated person in this country, particularly those working in the property area, would not know that Louisiana was purchased by the United States from France in 1803, the year of origin identified in our application. For the edification of uninformed FHA bureaucrats, the title to the land prior to U.S. ownership was obtained from France , which had acquired it by Right of Conquest from Spain . The land came into the possession of Spain by Right of Discovery made in the year 1492 by a sea captain named Christopher Columbus, who had been granted the privilege of seeking a new route to India by the Spanish monarch, Queen Isabella. The good Queen Isabella, being a pious woman and almost as careful about titles as the FHA, took the precaution of securing the blessing of the Pope before she sold her jewels to finance Columbus 's expedition. Now the Pope, as I'm sure you may know, is the emissary of Jesus Christ, the Son of God, and God, it is commonly accepted, created this world. Therefore, I believe it is safe to presume that God also made that part of the world called Louisiana . God, therefore, would be the owner of origin and His origins date back to before the beginning of time, the world as we know it, and the FHA. I hope you find God's original claim to be satisfactory. Now, may we have our damn loan?"

The loan was immediately approved.

(These are the same geniuses charged with the Government mortgage bailout.)

Monday, June 14, 2010

When in Doubt -- Revisited

So if you go back to last year, you'll see my first post about the importance of testifying truthfully. Recently, I ran into yet another example of how exaggeration and dishonest testimony can blow up in ones face.

I was defending a client who had been the at fault driver in a very minor bumper tap rear-end accident. She had come around a corner and - unexpectedly - came upon a line of cars stopped at a stop sign. She attempted to stop but was unsuccessful before running into the back of another car. That car was, then, pushed into a third car ... and it was the passenger in that third car that was claiming injury. The damage to the rear of that third car was barely perceptible.

To be fair, prior to the accident, the passenger had been off work for almost 2 years because of an 'on the job' injury to his shoulder and neck. He had undergone a shoulder surgery and two neck surgeries; and although he was still having some neck and arm symptoms just prior to the accident, he was definitely feeling better and his doctor had predicted he could look at returning to work in a few weeks.

So if he had testified that there had been an aggravation of this neck and arm pain from this minor accident, it might have been believable. But instead, his testimony was that he had suffered severe low back pain from the accident. This made no sense! Nevertheless, he ran back to his former doctors and chiropractor, complaining of low back pain and shooting pain down his legs. As most good doctors do, they take their patient at face value and believe the history given. I didn't.

I actually read a few thousand pages of his old medical records and discovered that he had been raising the same low back and leg complaints -- off and on -- for almost 20 years. So imagine my surprise when he testified that these were new symptoms; and that he hadn't treated with anyone for low back pain at any time in his life.

When someone testifies in such a blatantly false manner, attorneys on the 'other side' begin to salivate. And I have to admit I did. So it soon came time for what I like to call the "Perry Mason" moment.

Having had the man confirm -- under oath -- that he had never treated for low back pain or shooting pain down the legs prior to the accident, I pulled out a copy of a pain diagram he had completed just 3 months after the accident. You've probably seen one of these. A picture of a man (or woman); the doctor asks you to mark the areas that hurt and the type of pain experienced. Anyway, the pain diagram I showed him showed he had marked pain in his low back and down his legs -- just as he had testified. I got him to confirm that he had filled out many such pain diagrams over the years.

I then pulled out another one. This one was identical to the one he had just identified; but filled out for another chiropractor he had treated with after the accident. I'm sure he recognized the form. I asked him if this was one he had completed, too; complementing him about how it seemed quite consistent with the other one. He agreed; and acknowledged that it, too, represented the pain he was experiencing shortly after the accident.

Then came the "Perry Mason" moment. You see, I had actually 'whited out' the date of the second pain diagram. I then pulled out the original. The diagram was the same. The only difference was the date. The man had created the "consistent" pain diagram 2 years BEFORE the accident. I then was able to disclose dozens of pages of medical records in which he had treated for low back pain and leg pain during the many years pre-accident.

Needless to say, his case fell apart. He was awarded significantly less than ½ of what my client had offered to settle for weeks earlier. Had he just been honest, he would have 'scored' a settlement that would have paid him some 2½ times what he was awarded after his 'less than candid' testimony.

A word to the wise ... just tell the truth.

Tuesday, April 20, 2010

Liquor Liability - Who's At Fault

The answer, of course, is YOU! If you drink and drive, and you get into an accident; YOU are at fault. Man (or woman) - up!! How many times do we hear stories of someone who says "I only had a couple," and their blood alcohol content is twice the legal limit; and they lost control of their car and smashed into something (or worse -- some one).

That doesn't mean you can't have a beer, get into a car, and drive away. Of course you can. The problem is deciding where the line is. There is no bright line. There is no restrictor that measures your abilities before you get behind the wheel. Everyone has their own threshold. Some people can down a 6-pack without a problem. Others can't drink an ounce without feeling dizzy. It's up to YOU to know your limit; and here's the hard part -- be able to recognize it before you get there.

But I'm not here to talk about the criminal responsibility of a DUI. We'll save that for another chat. Rather, I wanted to talk about the civil liability aspect. First, despite my soapbox, just because you're under the influence doesn't necessarily mean you are automatically responsible for an accident. For example, if you are driving down the road under the influence of alcohol, and you are following all the rules of the road; and someone else is negligent (maybe pulls out in front of you), you are not at fault for the accident. Even if you are rip-roaring bombed!! Of course, you may have difficulty proving you were following the rules of the road since you were blitzed at the time; but that's a separate (albeit important) problem.

But others can share the responsibility for your drunken behavior. For example, the other driver might be at fault. I had a case, recently, where a woman had a couple of drinks after work, and then was heading home. She looked over her shoulder as she merged onto the highway, failing to notice a car that had stopped in the gore point. She ran into the back of the car. And why was there a car stopped in the gore point you might ask? Believe it or not, the driver had pulled into the gore point to allow his teenaged son to take the driver's young toddler son out of the car -- run across the street to the woods -- and go to the "bathroom!" Our client was at fault; and (before coming to me) pled guilty to a DUI. But we were able to convince the other driver's insurance company that he, too, was at fault for stopping in the gore point so his young toddler could relieve himself. That driver's insurance company contributed thousands of dollars to the settlement; monies that the plaintiff (in this case, the 2 minors in the car) would have be hoping to get from my client.

Drinking and driving is a 'no-no!' I'm sure we all can agree on that basic proposition. But options can and do exist ... and are worth exploring when you find yourself on the wrong side of that equation.