Civil Insurance Fraud Case: Win in FLA for John Colvin (Sept '11)

I’ve never before tried a civil insurance fraud case where the trial is about insurance coverage, money, and the reputation of an honest citizen. I’ve also never represented a client who believed more in her case and me than anyone I’ve worked for in 21 years, who happened to own her own business, worked the program, and was a part-time psychic.  And I don’t think I’ve ever been so scared in the lead-up to a trial.

I work for Christine.  So one Monday morning in a mildew-smelling Florida courtroom with no space and no décor and no soul, we start her insurance fraud trial. 

We start voir dire.  The panel sits both inside the jury box and outside it.  The court room is small. For those outside the box in the front row, there’s nothing between me and them.  We talk about the proof you need to declare someone a fraud.  We talk about honesty and how much we all hate defrauders.  We’re forming a tribe.  A retired military intelligence man relishes telling me about his career. I touch him while we talk.  I barely remember doing it.  No one says anything.  Later, the judge tells me to back away from them.  I hear nothing the defense lawyer says.

Our opening is a story about consistent truth over time.  Our story is how truth is fidelity to facts.  Christine is real.  She knows how to share emotionally and honestly.  She tells me her life is about rigorous honesty, and it shows.  The judge dislikes the case.    She doesn’t know what to do with me, and I set her off without meaning to.  Maybe she’s scared, too.

I softly cross the defense expert about the scope of his paid-for opinions.  He is an author of a forensic engineering book.  We talk about the importance of ethics and fairness in his work, as he writes in his book.   I ask him if he feels he has treated Christine ethically and fairly and honestly, which sets the judge off again.  The judge’s body language is strongly against us, or me, I can’t tell which.  But it’s killing us, and our jury sees all of it.  On break, I reverse roles with the judge.  That teaches me to not resent and judge her but to use a soft voice and to not say any of it on the record. I just need her understand why her body language speaks to the jury.  She’s offended and mad.  She explains it’s hot in the court room, and that I’ve misunderstood her.  We start up the evidence again.  She sits like a statue for the rest of the trial.

We close.   We’ve brought our jury everything there is, and it’s truth and real and authentic.  Christine is not a fraud, and she’s not a witch in Salem.  I tell the jury we’re scared and we don’t know what else to say.  There is so much evidence proving she’s real and honest that I climb up on top of counsel table.  It’s just in the moment for me, and it isn’t planned.  I say, ‘if you could physically stack our evidence it would reach higher than my hand.’  Not an objection, and not a sound from the judge.  

 

Two hours into their deliberations, the jury is deadlocked.   I’m beating myself up alone in a hallway going over what I could do different in the second trial.  The judge reads the deadlocked instruction, and they go back in.  More time passes.  The jury wants my cross of the insurance company’s expert re-read.  I cringe, thinking they want this to convince each other that the insurance company is right, that Christine is a fraud.  I had an expert to counter their paid-for expert, but chose not to bring him.  We don’t need him to show the jury the truth in our story, I thought.  Was I wrong?  Will we lose because of my decision?

No.  We win.   We win everything, coverage, fees, and we win the insurance company’s counterclaim they brought against Christine. 

Christine is not a fraud, of course.  My voice through the trial is indeed my true voice.   I am real.  We brought our jury the truth and they brought Christine into their tribe.

While the jury deliberated, Christine drew angels on sticky notes which she arranged on the same table I had stood on. A week later she explained them to me.  She drew the jury as angels who were there to save her.  The judge was God.   Her many supporters who came during the trial were her guardian angels.

She drew me on a sticky. 

“John, you were my Warrior Angel.” 

Her words.

All of the TLC tribe was there with Christine and me and our jury in that small, tense, smelly Florida court room where the client saw angels on her jury and put wings on her Warrior Angel.  How beautiful it is to be in those moments.

Excessive Force win by Sept '10 grad Hank Sherrod

HUNTSVILLE, Alabama -- The Madison County Sheriff's Department has settled for $625,000 with Robert Bryant, the Tennessee mechanic who claimed he was savagely beaten by several deputies and falsely arrested in retaliation for a barfight over a woman.
"We're pleased with the settlement, but the insurance company paying is not the equivalent of accountability for the officers who did this," said Hank Sherrod, Bryant's attorney, this morning.
Bryant has claimed he got in a dispute in a pool hall with Deputy Justin Watson. He said he was later followed by deputies, pulled over without cause, asked to step out of the vehicle, and assaulted.
He said that night in August of 2012 several deputies joined in stomping him while he was handcuffed at the side of the road. He said they knocked his teeth out, beat him unconscious, used a stun gun on him, hit him with a collapsible baton and charged him with assaulting an officer.

The sheriff's three-paragraph statement today did not confirm the amount. Instead, the press release from Madison County Sheriff Blake Dorning denies all wrongdoing and claims the insurance company settled the case to save money on litigation.

"The Madison County Sheriff's Office admits no liability or responsibility with regard the alleged allegations..."

"The County's insurance company settled this case out of court to minimize expected attorney's fees and other legal expenses that would have been expended if all eight of the defendants and the five law firms representing them were to have litigated this case to a conclusion – a process that likely would have taken several years," reads the sheriff's statement.  " All seven of the Madison County Deputies and the Sheriff were represented through legal counsel paid for by Madison County's insurance company under the County's insurance policy."
The complaint filed in U.S. District Court on March 10 named Dorning and eight of his deputies. They were Watson, Stan Bice, Chad Brooks, Jake Church, Ryan Countess, Drew Lane, Jermaine Nettles and Mike Salamonski.
Police reports from the incident say Watson pulled over Bryant for an illegal lane change. In one police account, Bryant leapt from his truck to attack Watson. In another, Bryant attacked Watson during a field sobriety check. Both police accounts say Watson fought for his life until backup arrived.
The lawsuit instead alleged Deputy Church "in order to assist defendant Watson in getting revenge against plaintiff" pulled over Bryant and initiated the beating.
Bryant's suit reads: "During the incident, Church, without provocation, among other things, punched plaintiff in the mouth, struck him with a baton, rendered him unconscious using a choke hold, and then, after cuffing plaintiff, beat him, mostly in the face," reads the federal suit.
"Other deputies arrived and participated in beating plaintiff or watched as other officers beat the unconscious plaintiff, doing nothing."
Deputies reported no contraband in the truck and Bryant was not found to be intoxicated.
Bryant was taken to Huntsville Hospital that night and placed under arrest. Madison County in November of 2013 dropped the charges, just days after Bryant's vocal financial backer, Jason Klonowski, was found shot dead at his home just outside Huntsville. Klonowski's murder remains unsolved.
Bryant sued  in  March of this year. The case quickly moved into mediation. The court on May 2 granted 90 days to attempt to reach a settlement, meaning neither side has filed substantive documents in a few months and the case was largely handled away from public view. The legal timeout was just about up and the civil case stood to resume in the next few days.
Dorning alone had asked to be dismissed from the case, as the only allegations against him were that he later learned of the wrongful arrest and did nothing to correct it. Dorning's attorneys wrote in court earlier this year: "The complaint does not plausibly allege that Sheriff Dorning obtained knowledge of the malicious prosecution at a time when he could have intervened to prevent criminal charges from being filed against Bryant."
Dorning today denied any wrongdoing by his deputies. His statement said: "The Madison County Sheriff's Office admits no liability or responsibility with regard the alleged allegations made by Robert Bryant against any of the Madison County Deputies named in the lawsuit in connection with this settlement."

TLC '99 grad and faculty member Maren Chaloupka gets justice for two men wrong-fully jailed

Kofoed ordered to pay $6.5M to 2 men wrongly jailed after '06 slayings

By Cody Winchester / World-Herald staff writer

 

Two Nebraska men who have been awarded a nearly $6.5 million judgment in a civil rights case over evidence-planting could have trouble collecting the money.

A federal judge this week ordered David Kofoed, the disgraced former Douglas County CSI chief, to pay $4.35 million in damages, costs and attorneys fees to Matthew Livers and $2.14 million to Livers’ cousin Nick Sampson. Sampson and Livers were wrongly jailed for several months after the 2006 shotgun murders of Livers’ aunt and uncle, Wayne and Sharmon Stock of Murdock, Neb.

But Kofoed, who was convicted of felony evidence tampering, says that the years of legal wrangling have cleaned him out and that he has no assets to seize or wages to garnishee.

Douglas County taxpayers won’t be on the hook to pay the judgment — Livers and Sampson settled their claims against the county last fall. But the terms of that settlement leave the county’s liability carrier exposed.

Two Wisconsin teenagers, Gregory Fester and Jessica Reid, later pleaded guilty to the murders and were given life sentences.

Kofoed, who processed the evidence at the scene, served prison time for planting blood specks in a supposed getaway car belonging to Sampson’s brother.

Typically, the first step in enforcing such a judgment is an examination to determine the debtor’s finances, including any wages eligible for garnisheeing, said John Lenich, a law professor at the University of Nebraska-­Lincoln.

The rules differ by state, but usually some earnings are protected to ensure that the debtor has enough money to live on, Lenich said. Assuming Kofoed has no assets to seize, it’s unlikely Sampson and Livers would get any money from him.

“Sometimes what you end up with is a very impressive piece of paper saying you’re owed a very impressive amount of money,” Lenich said.

As long as the judgment is periodically renewed, though, Sampson and Livers could lay claim to Kofoed’s future earnings.

“There’s always the chance he could hit the lottery,” Lenich said.

Another possibility: Try to collect from Douglas County’s liability carrier, Travelers Insurance. The county was released from liability, but not the county’s insurers, “to the extent those insurers may be deemed responsible for payment of a judgment against Kofoed,” according to the settlement reached last fall.

In an email, Sampson’s lawyer, Maren Chaloupka, indicated that she might take that route.

“Douglas County went to extraordinary lengths to protect Mr. Kofoed for much of this litigation,” she said. “Surely this was with the knowledge and consent of its liability insurer. Perhaps it is time for the liability insurer to step from the shadows and cover this judgment.”

Livers’ attorney, Locke Bowman, declined to comment on how his client might go after the money.

“We expect to take steps to recover on the judgment,” he said. “I can’t discuss it because we haven’t done it yet.”

A spokesman for Travelers was checking into the matter but did not immediately respond.

Last year, Sampson and Livers settled claims with the other defendants in the lawsuit — the Nebraska State Patrol, Cass County and Douglas County and individual investigators — for $2.6 million. Of that sum, Livers received $1.65 million; Sampson was awarded $965,000.

Monday, U.S. District Judge Joseph Bataillon closed the book on the Kofoed claim.

“Sampson suffered a grave injustice — being charged with and incarcerated for a crime based on phony evidence,” Bataillon wrote in awarding the judgment.

Of Livers, Bataillon wrote: “There is evidence that, because of his developmental disability, an injury to his family life, marriage, or reputation affects the plaintiff more negatively than it would a person of average intelligence.”

Livers has an IQ of 63, according to the lawsuit. His attorneys said that he implicated himself and Sampson only after several hours of coercive interrogation and that investigators with the Cass County Sheriff’s Office and the Nebraska State Patrol withheld for months the fact that Livers recanted his confession the next day.

Livers, 35, lives in Texas. Sampson, 29, still lives in the Murdock area.

Kofoed, who maintains his innocence, skipped his trial in the federal lawsuit, saying he couldn’t afford the trip back to Omaha. Reached Tuesday at his home in North Carolina, he said the final judgment doesn’t change much for him: He’s still broke and unemployed.

“What are they going to do?” said Kofoed. “They can’t get blood out of a turnip.”

TLC '05 Alum and Faculty Member Deb Ellis frees an innocent man from death row

For years, when she’d walk into her downtown St. Paul office, criminal defense lawyer Deborah Ellis would see a photo of Louisiana death row inmate Glenn Ford perched at eye level on the reception desk.  It was “a reminder to fight the good fight,” she said.

On Tuesday night, Ellis watched on television as Ford, 64, walked out of Louisiana State Prison in Angola. He was one of the longest-serving death row inmates in U.S. history to be exonerated and released. “I’ve been crying ever since,” Ellis said.

The rare and dramatic moment came hours after a judge granted the state’s request to vacate Ford’s murder conviction. And it came after three decades of exhausting, discouraging work and failed legal appeals by Ellis and other attorneys, including several from Minnesota. In 1984, Ford, who is black, was convicted of first-degree murder by an all-white jury in the November 1983 killing of Isadore Rozeman in his jewelry store-home in Shreveport, La.

For more of the story, go to

http://www.startribune.com/local/stpaul/249995501.html

4-0 for NOT GUILTY verdicts since graduating from the Trial Lawyers College in July '13

TLC Grad Bob Vogel (July '13) writes the following.  Congratulations to you Bob, and to your client.  He was very fortunate to have you as his counsel.

I had a rape trial over the last two days. My client was falsely accused of raping a mentally retarded, autistic man for whom he was the caregiver. The State began its investigation after receiving a well intentioned, but inaccurate 911 call. A police officer was called, and the officer reported that he observed nothing out of the ordinary. However, a police detective decided that something had happened. He just had a feeling that my client was lying. After two interviews with the police in which he explained that nothing had happen and the caller was mistaken, the detective engaged the "Reid Technique"(an insidious interrogation technique responsible for thousands of false confessions) and used a polygraph to confront my client and intimidate him. They claimed they had proof they did not have and bullied him into signing a false statement. The statement was not a direct confession, but close enough that they could then leverage it into an indictment. They had no other proof - none, not a stitch, except what they had manufactured. They then set about gathering any other coincidental information that would support their position.

I used the TLC Voir Dire approach and really had a great time of interaction with the jury. We discussed under what circumstances someone might make a false confession. Which really was helpful later on when it came up during cross. We talked about many other things which then became touchstones during the trial and closing. We had a great jury, which I attribute to the TLC Voir Dire approach. From there, I told my client's story in each of the phases of the trial, through all of the witnesses.

I had an amazing experience during the closing. I had prepared all the areas I wanted to talk about, but as my turn was approaching, I found that I had some unexplained emotions churning up inside me. I took some moments to identify what I was feeling. I finally realized that the thing about the case that most affected me was the terror I felt at the monstrous crime the state was trying to commit. They had use all of their power and resources to create a case against an innocent person based on little or no evidence. Doing that, they put my client at risk for 15 years of his life and the permanent ruin of his reputation. They'd done lousy police work and relied on coercing a false confession from my client to make their case. To me, this was terrifying. It clearly demonstrated that any of us are vulnerable to the machinations of the State if they decide to prosecute us.

The Detective did not go into the interrogation seeking the truth. He went into the interrogation seeking a confession. What he got was false, he knew it, and went ahead and pushed forward anyway. Fortunately, 12 heroic citizens decided not to let them get away with it. They came back with a not guilty verdict in less than an hour.

By the way, this makes me 4 and 0 on jury trials applying the Spence/TLC method. I've got a first degree murder trial coming up in a month, so keep me in your thoughts and prayers.

All the best,

Bob Vogel (July '13)
rlvogel@robertvogellaw.com

$10.7 million verdict won by Randal Kelly (July '10) and Mike O'Connell (July '11) in worker safety case

TLC Trial Fires matter:  Major oil field worker safety case won by Colorado Trial Lawyers Randal Kelly (July ’10) and Mike O’Connell (July ’11)

     A $10.7 million verdict was delivered by a Greeley, CO jury in a very complicated oil field worker safety case which had previously been dismissed in a lower court, and was revitalized by TLC July ’10 Grad Randal Kelly, with the assistance of Mike O’Connell (July ’11).  Before trial, Randy was offered $225,000 for his client to settle. 

Randy took over this case in September 2010 after it had been badly handled by his client’s previous attorney. In September 2011, Randy got the Colorado Supreme Court to grant a C.A.R. 21 Petition to reinstate the critical claim against the critical defendant, Schneider Energy, which had been dismissed by the trial court. Upon winning that determination, and going back to the trial court before a different judge (the first judge had since retired), the surviving widow and family of Reyes Garcia was finally given an opportunity to tell their story to a jury. 

     Reyes Garcia was a gas-well worker on what is called in the industry “a work-over crew”. After wells have been drilled and “frac-ed”, this crew was responsible to clean out the remaining debris and contaminated water from the wells so that they could then be put into production.  These crews use three primary pieces of equipment to do this:  a rig truck with a 40' tower and a drill over the well head, a huge pump to circulate the water, and a gigantic water tank called a “flat tank”.  During the process, gas can be released at the flat tank if a gas pocket is hit or if the debris coming out is real gassy.  The primary safety mechanism for the men is the spacing of the equipment since the pump and the rig are combustion sources. Distance and time equals safety on this type of worksite.

     Four different entities were on the site with layers of immunity, indemnity, master-service agreements, workers comp immunity, employee-employer obfuscation, sub-contracting and statutory employment issues. Two “non-parties” alleged to be at fault- Noble Energy (the well "operator"), and Leed Energy (the employer of Reyes Garcia which was responsible for providing men and equipment) - were immune from suit, but their negligence was nevertheless in issue.  Schneider Energy was the entity hired to supervise well operations and they hired William Smith to run the operations at the site - including safety.  Smith and Schneider Energy both claimed that Smith was an independent contractor.  Smith’s lawyer claimed that Smith was an employee of Noble, which would have also made Smith immune from suit, and Schneider Energy off the hook.

     While a gross simplification of the issues, the gist is that The American Petroleum Institute (“API”) recommends spacing of 100' in between each piece of equipment.  On this particular site, the equipment was spaced less than 75' apart, reducing the amount of time available for the workers to shut down the well and avoid an explosion if something did go wrong.   In July 2007, something went terribly wrong on this site when the crew detected gas coming from the flat tank and began shut down procedures.  Reyes was at the pump.  He was enveloped in flames in a flash fire, burned over 80% of his body, and fought to survive at the Western States Burn Unit. Reyes died on September 8, 2007 without ever speaking with his family again. 

     In the face of these facts, the defense paraded a number of witnesses who had never heard of the API spacing standard, and the ones who had heard of it said it wasn't important and/or not relevant for these operations.  The defense also argued that any fault should be attributed to Leed Energy, (Reyes Garcia’s employer), because Leed had delivered and set up the equipment at the site. The defense claimed that Reyes Garcia was at fault because he voluntarily moved into the danger zone. They also claimed that Smith was immune from suit as he was “technically” a Noble employee. It was a knife fight. Randy and Mike fought the defense for 2 hours the night before closing on an “inherently dangerous activity” jury instruction, which they ended up convincing the Judge to give, and which raised the standard of care for the jury to consider. 

     Randy handled all the liability witnesses, the experts and Lorena Garcia (Reyes' wife and a beautiful human being), as well as voir dire, open and close.  Mike came in a month before trial and handled the story that the family had to tell as well as the burn surgeon.   Louise Lipman and Josh Karton came to Denver a couple weeks before the trial to help with the family.  Louise had originally helped Randy and the family prepare for the first trial, in 2011, which was stayed when the Colorado Supreme Court took the case away from the first judge. It took almost five years to get this case to a jury.

     Mike O’Connell writes:  “In the end, we ended up with an all male jury and a less than enthusiastic female alternate who was allowed to deliberate.   I can't begin to tell you how complex this case was.  There is probably not another attorney in Colorado who could have handled these issues besides Randy.  Ironically, his April 4, 2013 Durango verdict played into this because of the claim that Smith was a "statutory employee" (sic) of Noble - which would have gutted the case, and nobody knows this issue better than Mr. Kelly.  Randy was the very definition of what the TLC embodies.  I am, and will always be, deeply moved by how he handled this case and the trial.”

     The trial was held in Greeley, Colorado (Weld County) and was tried before Judge Todd Taylor.  The jury found Smith was indeed an employee of Schneider Energy.  They found this activity to be inherently dangerous.  And they found no comparative - 100% Smith (and of course, all imputed to Schneider on the respondent claim).  The verdict was $2,000,000 non-economic damages; $4.5 million on economic damages (medicals and lost future earnings); and with interest compounded over 5 years, the total verdict for Mr. Garcia’s surviving widow and family is $10,700,000.   [Accounting for some cap issues, the final judgment with interest will total $8.5 million.] 

     Note from TLC:  While some cases have huge verdicts, many do not.  But the consistent factor is that trial lawyers across this country fight for justice; they represent the common man who must go against typically huge corporate or government entities, with odds that are most often overwhelming.  Our congratulations to TLC grads Randal Kelly, Mike O’Connell and every other trial lawyer in this country who commits his or her life daily to obtaining justice.  Way to go!   

Trial Lawyers Ron Estefan ('05) and Gene Shioda ('05) get justice for their client in an employment dispute

Ellen’s Story: by Ron Estefan ('05) and Gene Shioda ('08)

            It is December, 2005.  Ellen lives in Florida and works as a sales representative for a bridal designer store there.  A friend calls Ellen to let her know about a General Manager opening at a bridal gown manufacturer in a Houston suburb.  She would have to move there.  Ellen’s dream job.  But Ellen is conflicted.  She is a single mother in Florida with a daughter in her junior year in high school.  Ellen talks with her daughter about it and her daughter says “Mom, this is what you’ve always wanted.  Dad lives just a few miles away.  I’ll stay with him.”  Ellen flies to Houston to meet with the owners of the company.  They offer her the job.  She will be the General Manager and her supervisors will be the owners of the company.

            Ellen starts working for the company in January, 2006.  The first six months go great.  Then, things start to change.  The owners start making subtle sexual comments to her.  “Maybe this will stop” she thinks to herself.  “Besides, to whom can I complain?”  But it doesn’t stop.  It gradually escalates – in ways the owners can say to Ellen “You’re being too sensitive” and “Don’t you know we were just kidding around?”

            The owners’ sexual comments, practical jokes, and actions continue to escalate for 3 more years.  Ellen deals with these by deflecting them so as not to anger her bosses and get fired.  She makes a joke in response whenever she can or tries to laugh them off.  Finally, she can’t take it anymore.  She quits.  It’s the only way she can make it stop.  She would have let it go at that.

            Two and a half months after she is forced to quit, the owners sue Ellen claiming she committed slander per se against them, breached her fiduciary duties, disparaged their business and was negligent.  That is the last straw.  Ellen hires Gene Shioda, TLC ’08.  Gene calls me and asks if I want to co-counsel Ellen’s case AND file counterclaims against the owners for what they did to Ellen.  We file an Answer and counterclaims for sexual harassment, retaliation, intentional infliction of emotional distress and assault.  For the next 4 ½ years we litigate, surviving two case-dispositive motions.

            We get to trial in January, 2014.  The company and its owners parade witness after witness into the courtroom.  These people all tell the jury horrible things about Ellen.  Except none of it is true.  But how does Ellen prove that when the other side has a dozen witnesses and she has just herself?

            The jury charge is 67 questions.  It takes the judge nearly 2 hours to read the charge to our jury.  Our jury deliberates all day.  At 6:30 Friday evening our jury comes back into the courtroom, announces they have reached a verdict and the presiding juror gives the bailiff the charge.  The judge reads the charge and the answers.  Every one of the owners’ claims is answered “No.”  Ellen’s claims for sexual harassment and intentional infliction of emotional distress are answered “Yes.”  The jury awards Ellen money.  Vindication and justice, at last!