So, let’s assume that you just got the call that someone you know is in the jug. What do you do? Some offenses have pre-set bonds. For example, if you are arrested for DWUI or some other charge where there is a bond schedule then all you must do is take the necessary cash up to the detention center and post the bond and the person will be released. The detention center will accept bonds 24 hours a day, 7 days a week except for several times during the day when the jail is locked down. Lock down periods occur during meal times and between 5:30 to 6:00 a.m., and 11:00 p.m. to 12:00 a.m. The bond must be paid in cash, money order, certified funds or it may be posted by a local bond company. The jail won’t take personal checks.
If there is no bond schedule for the alleged offense, then a judge must set the bond. A bond is a sum of money that is deposited with the court to guarantee that you will show up for any hearings in your case, and to make sure that you follow any condition the court places on your release. You will get the bond money back at the end of the case if there are no bond condition violations, and the bond amount may be used to satisfy any fines imposed.
In setting bond, a judge will consider a number of factors including the nature and circumstance of the alleged crime, the weight and sufficiency of the evidence, the prior criminal history, contacts to the community, the nature of the allegations, whether the person is already out on bond for another matter, and whether the person has a history of failing to show up for prior court hearings. A bond is not designed to be a punishment; it is just designed to make sure the person shows up for all scheduled hearings on the case.

Judges frequently impose conditions on granting bonds. The conditions usually include that the person not commit other crimes, that they maintain employment, they abide by travel restrictions, and that they avoid contact with any alleged victims or witnesses. If substance abuse is suspected, the court may order that the person not consume alcohol or controlled substances, and that they submit to random drug and alcohol testing during the pendency of the case. The court may also order that a psychological evaluation be obtained to identify any substance abuse problems. Finally the court may order any other condition that might be necessary given the circumstances.
If the arrest occurs before noon, the person will usually be seen by a judge at a bond hearing, which occurs at 2:00 p.m. every weekday. If the person is arrested later in the day or at night then, unless the judge and a prosecutor are consulted, the person will have to stay in jail until the next day when he can be seen by the judge. Judges usually call to set bonds in the afternoon of each weekend day.
Courts look very harshly on people who don’t show up for hearings or violate conditions of bond. The Court can forfeit the bond (which means you lose the bond money) and order the immediate arrest of a person who violates a bond condition. If that happens, about the only way you will be able to obtain a pretrial release is by using a hacksaw. My advice to people who get out of jail on bond is to go home, stay in contact with your lawyer, keep your mouth shut and until your next hearing you should hide underneath your bed. Finally, make sure you are early for your next scheduled hearing.

I can’t drive around Casper without thinking about the car wreck cases I have handled which have occurred at most of the major intersections. Driving to Cheyenne or Sheridan is even worse. I have worked on car wreck cases which occurred on most of the highways in this state. I think about these cases every time I approach one of the accident scenes. Most people live in a safe little cocoon. They don’t think about what the hideous images of a serious car wreck actually look like. Law enforcement must not only see and document these terrible scenes, they have to go clean them up. Then they must notify the families of the victims. Most of you honestly have no appreciation of how terrible these scenes can be. The photographs of these scenes are frequently used as exhibits in the lawsuits that result from these crashes. There is an ad running on TV right now with some kids driving recklessly in a jeep. Then the camera shakes around to simulate a wreck and then it focuses on someone putting a hamburger patty on a grill. The idea is to imply that a car wreck can turn someone into hamburger. As corny as this sounds, I think it is way too understated. They ought to show everyone what it looks like to butcher an elk.

The point of these public service messages is to get everyone to pay more attention when they are driving. If you sit at any intersection in town waiting for the light to change, just count how many people drive by talking on cell phones. In a recent study from the United Kingdom, researchers found that drivers talking on cell phones were as likely as intoxicated drivers to be involved in an accident. The study also found that an average driver trying to send a text message takes their eyes off the road at least 14 times every 30 seconds to look at the screen or keypad on the phone. In other studies it has been shown that a driver talking on a cell phone is 4 times as likely to be involved in an accident and someone text messaging is 6 times as likely to be involved in an accident than someone who is paying attention and not using a phone.

Seat belts are another no brainer. A recent article from James Madison University found that of every 100 children who die in motor vehicle accidents, 80 would have survived if they had been wearing seat belts. They also said that in a 30 mph collision an unbelted adult weighing 160 pounds can hit the windshield or another passenger in the car with 4800 pounds of force.

In putting these speed reminders around town the authorities are trying to gently remind all of us to stay awake when we drive. Driving is an inherently dangerous business and it is vital that we keep our heads in the game. The next time you see one of those reminders on the street slow down and concentrate on what you are doing. If you happen to get a speeding ticket, thank God.

Wyoming is an employment at will state. This means that unless there is a contract of employment between the employer and the employee, each is free to terminate the relationship at any time without a reason. If you wake up on Tuesday morning and decide to quit your job there is not much the employer can do about it. The same goes for the employer. If she decides that she wants rid of you, all she has to do is tell you to pack up and git. Remember thought this is just the general rule. Rules have exceptions, and this rule has some big exceptions.

The first big exception is where there is either an express or implied contract right. For example, If you actually have an employment contract, you must follow the terms of the contract when you fire someone. I am sure George Steinbrenner would like to fire most of the New York Yankee pitching staff. Problem is they all have contracts. Where a contract exists it will usually provide that the employee cannot be terminated without just cause. Then the question becomes: What is just cause? Throwing too many high fast balls over the plate probably is not just cause. Getting convicted of betting on baseball probably is just cause.

When an employee is first hired, most employers have the employee sign what they call a disclaimer. This document usually provides that both the employer and the employee agree that the employee is an “employee at will” and his employment can be terminated at any time with or without cause. Under most circumstances these disclaimers will be enforceable and the employee can’t do much about being terminated.

If there is no enforceable disclaimer then things like employee handbooks or policies and procedures can be used as a basis to argue that the employment is subject to an implied contract. An example of this would be where the company adopts a progressive discipline policy in the employee handbook. A lot of handbooks identify things that trigger discipline under the policy. If the policy says that you can be disciplined for repeatedly being late for work, then the language may imply that you won’t be fired for being late, you will just be disciplined. Then if the employer fires you for being late and disregards his own policy then the employee may be able to successfully challenge the termination in court.

Another exception is where the termination is based upon some unlawful reason. If you fire the oldest employee or use sex, creed or national origin as a basis for the termination you may be in violation of Federal law.

Termination of employment cases are tough cases. The biggest problem is that the employee usually finds another job pretty quick and many find better jobs. This results in no damages, so no case. I know you might all be shocked by this but I have been fired from a few jobs. My attitude about it was to follow the immortal words of Johnny Paycheck. “You can take this job and shove it, cause I ain’t working here no more.” How can you go wrong with that attitude?

Wrongful death cases are different than other types of personal injury cases because the damages recoverable are different. In the usual personal injury case the measure of damages are designed to compensate the injured person. In a wrongful death case, there is no way to compensate a deceased person. In Wyoming, wrongful death cases are authorized by statute. The statute allows compensation for the next of kin where the death was caused by a wrongful act, neglect or default of another person or entity. People die every day, and just because someone dies, it does not mean that the survivors have a wrongful death case. Only those cases where the death was caused by some type of wrongful conduct does the case become actionable.

It would be wonderful if we could ask our juries to place their hands on the deceased person and bring them back to life, but unfortunately that is not the way it works. The only way the law has to provide compensation is to award money damages. This is the part where it gets complicated. How do you place a value on a human life? Are all lives worth the same? Is a 40-year-old father of 3 small children worth more than say a 90-year-old grandmother or a 3-year-old child? A 40-year-old breadwinner with small children would be expected to earn more over his expected lifetime than a 90-year-old grandmother. A small child has no earning history and has no dependents so juries and insurance companies would both likely say that the 40-year-old father would be far more valuable in economic terms than an elderly person or a child.

These cases are also complicated because under Wyoming law the number of people that may have a valid claim for wrongful death include all of the people who would be entitled to inherit property from the deceased person. This would include spouses, children, parents, grandparents, aunts, uncles, and cousins. We have had cases where a person is killed by some wrongful act and a brother who had not spoken to the victim for 20 years shows up and claims that he is entitled to the same amount of money damages as the victim’s spouse or one of his children. Wyoming law deals with this problem by limiting the damages to the loss of probable future companionship, society and comfort. The jury hears evidence on the relationship between the victim and the various claimants, and must decide what amount of money is fair compensation to the individual claimant. In this example, the child or spouse would have a much more valuable claim than the estranged brother. In fact, the jury could decide that the brother was not entitled to anything.

These claims must be brought by a personal representative who is appointed by the court. The personal representative is actually the one who files the suit for the benefit of all of the claimants. This entire process is supervised by the court, and any distribution to the claimants by the personal representative must be approved by the court.

A final complication of these cases is the 2-year statute of limitations which requires that a wrongful death action be commenced within 2 years after the death of the deceased person. There are lots of exceptions to this rule, but if you may have a wrongful death case and have any questions about any of these issues you should contact a lawyer immediately. These cases do not get better with age.

The Workers’ Compensation system was designed to compensate workers who are injured while engaging in “extra hazardous” employment. In Wyoming, when a covered employee is killed or injured at work, the Wyoming Division of Workers’ Compensation is the system created by the legislature to provide compensation to the injured employee or, in the event of death, the family. Workers’ Compensation is a compensation system that functions outside the normal legal framework designed to compensate injured people.

This system was created in Wyoming in 1912, and although the system has evolved since its creation, the basic goal remains to provide quick and efficient compensation to injured workers at reasonable cost to the employers without consideration of fault. When it was created, injured workers were forced to pursue compensation using the legal process. This forced the injured employee to file suit against the employer. The employee had to prove that the injury was the employer’s fault, just like any other injured person seeking compensation for an injury. This process takes time, and if the jury found that the injury was not the employer’s fault, the employee had to pay all of his own medical bills. The legislature decided that forcing an injured employee to seek compensation in this manner resulted in significant hardship to the employee. The system was designed to cover an injury no matter who was at fault. Under our present system, when an injury occurs at work, the employee must file a claim with the Division of Workers’ Compensation, and if the department concludes that the employee is a covered employee, and that the injury occurred while working, the employee is automatically entitled to compensation. In return for automatic compensation, the employee gives up his right to sue his employer for his injuries. In return for contributing into the fund, the employers are granted immunity from suits.

Unfortunately, this system has flaws on both sides.

On the employee’s side, the compensation provided is usually significantly less than an employee might expect if the case were decided by a jury. For example, if an employee is killed, the total death benefit available is usually a fraction of what the case would be worth if Workers Compensation was not involved. The amount of money Workers Compensation will pay to an injured worker is the product of a complicated formula used by the Division. If an employee were allowed to sue his employer a wrongful death lawsuit verdict could easily be ten times the amount Workers Compensation will pay for the same person.

For the employer, the drawback is that no matter how careful the employer, his account will be charged for an injured employee even if the injury is the employee’s fault. Fraud on the part of the employee is also a factor in this system.

The one major exception to this system is that the employee can sue a third party if they were the cause of the injury. If the employee is successful in this type of suit, he must repay Workers’ Compensation for the benefits expended on his behalf which were charged to his employer again based upon a complicated formula.

On a final note, the employees have a very short time to file a claim, so if you have been injured on the job you should not wait around to file a claim. If you have any questions about this system you should contact a lawyer.

The regulations cover things like weight restrictions, hours of service, training issues, substance abuse issues and a myriad of other factors designed to make trucking operations safer. The law places special responsibility on truck drivers because the trucks they drive can be so inherently dangerous. Economics plays an important role in trucking company operations. Trucking companies only make money when the trucks are operating. This causes drivers to drive when the weather is bad, or when the drivers are tired. Sometimes the trucks are dangerously overloaded which makes them hard to control. Drivers are frequently paid by the mile, so they take chances that most drivers would not take.
The trucking companies have a duty under the regulations to hire competently trained drivers, but in one of our recent cases the driver had been hired from a foreign country. He was given two weeks of on the job training and did not speak English. He was unable to understand the weather reports and caution signs placed on the route warning of hazardous conditions. He jackknifed his rig across the highway in bad weather. I doubt that he had ever even seen snow before he was hired to drive a big rig through a spring storm near Casper on the night of the wreck. The truck driver in this case should never have been allowed to drive a big rig through Wyoming.

Most trucks are now equipped with ECM or Qualcom systems. These are essentially black boxes like those used in commercial aircraft. They can show the speed, RPM levels, braking distance, track the route, and measure time in service before the crash. This can be vital information in evaluating whether the trucking company is at fault for an accident. You must make a demand that this data be preserved immediately after an accident because the trucking company may want to destroy it if it shows a violation. Truck drivers are also drug tested after wrecks. This testing may show that the driver was under the influence of some illegal substance at the time of the wreck. Some drivers take illegal amphetamines to keep awake for long periods. Sometimes they have been drinking before the crash and this information is vital to evaluating the driver’s reaction time and ability to avoid a crash.

Weather is another huge factor in truck wrecks. Some trucking companies take a load to a destination and on the return trip the trailers are empty. With the wind in Wyoming these trucks are much harder to handle. There are safe ways to avoid this problem, but some companies don’t like to put weight in the trailers on the return trip because it uses more fuel.

In fairness, most truck drivers don’t operate like this. They follow the law, and safety is a priority for them and the companies they represent. They play a vital role in providing the goods and services we all enjoy, but one bad apple can do a lot of damage.

The trucking companies are required to maintain large insurance policies to cover their operations. Representatives of the insurance company will usually visit the accident scene within hours of a crash. If you or a family member has been the victim of a truck accident, you should immediately call a lawyer with experience in trucking cases.

The Supreme Court exercises its power in several ways. Primarily the Court interprets federal statutes and agency regulations to find the meaning behind the words used in the law or regulation. Congress writes the law and the Courts tell us what the law means. This process is called “statutory construction” and the process is not an exact science.

Another way the Court exercises its power is by deciding whether a given federal or state law or regulation violates the U.S. Constitution. This really is a small part of what the Supreme Court does, but it can be the most important. If the Court decides that a law is in violation of the Constitution, the law becomes unenforceable. This process is called “constitutional interpretation”. An example might be helpful to understand this process. The First Amendment to the United States Constitution forbids abridgement of “speech or of the press”. It does not say anything about e-mail, but there is little doubt that we have a right to express ourselves in e-mail and any law that prohibited this would likely be held unconstitutional.

One of the big issues surrounding the appointment of Judge Samuel Alito to replace retiring Justice Sandra Day O’Connor on the Supreme Court is going to involve the issue of whether the Constitution contains a “right to privacy”. Using constitutional interpretation, the Supreme Court held in the 1965 case of Griswold v. Connecticut that although a right to privacy is not specifically mentioned in the Constitution, this right was essentially implied by other privacy related provisions that are specifically mentioned. Several years after the Griswold decision the implied “right to privacy” was used as the basis for the famous case of Roe v. Wade. In Roe, the Court held that it was unconstitutional for state legislatures to pass laws which regulate abortion early in pregnancy. This view of constitutional interpretation is advocated by current Supreme Court Justice Steven Breyer, who argues that the Constitution is a living and evolving document that should be interpreted by broadly applying its democratic principles to the constantly evolving issues which are produced by the unprecedented technological change that the country is now experiencing. He argues that limiting the inquiry to the express terms of the document is too restrictive in that it prohibits the flexibility that a changing society requires. He calls this the “active liberty” method of constitutional interpretation.

The opposing view is championed by current Supreme Court Justice Antonin Scalia. Justice Scalia argues that the Constitutional questions should be answered by looking strictly at what the Constitution actually says, and from that analysis determining the original intent of the people that drafted the document. This philosophy is sometimes referred to as “textualism.” or “strict construction”. If the Constitution does not expressly say there is a right to privacy, then Justice Scalia argues that there is no right to privacy. He argues that when judges look at the Constitution as an evolving document it allows them to impose their own personal preferences or values on the law in question, and in doing so they are really acting like a super (unelected) legislature.

This debate will begin in earnest in Judge Alito’s Senate Confirmation hearings which are set to begin in January. Odds are that Judge Alito favors Justice Scalia’s point of view but is doing everything possible to keep from actually saying so. If you are interested in the Constitution, these hearings will truly be “must see TV”.

Let me begin with a little constitutional law. The Sixth Amendment to the United States Constitution provides “ In all criminal prosecutions, the accused shall enjoy the right *** to have the Assistance of Counsel for his defense.” This provision initially related to federal prosecutions but in the famous case of Gideon v. Wainright decided by the US Supreme Court1963 it was made applicable to state court prosecutions by the 14th Amendment. Later in the case of Strickland v. Washington decided in 1984 the US Supreme Court decided that a criminal defendant was entitled to the “reasonably effective assistance” of counsel.

In 1977, The State of Wyoming enacted the Wyoming Public Defender Act, which requires the appointment of an attorney for any needy person who is under arrest or charged with a serious crime. A “needy person” is defined as one who at the time of prosecution is unable to pay for full representation. A “serious crime” is defined by the Act as one in which incarceration is a practical possibility.
The Public Defenders office was created to satisfy the constitutional requirement that the state must provide attorneys for people who do not have the resources to hire private lawyers. All people. The Public Defender is required to provide a competent defense, even if the case seems hopeless or the defendant is accused of hideous behavior. The Public Defenders job is not to judge the defendant, but to competently represent him.

When I first got out of law school I worked part time for the public defenders office taking cases on a referral basis when the office was overloaded. I was proud to work with the people in the office at that time. Most could easily move too a more lucrative private practice, but chose instead to stay and fight for the rights of poor people. The present crop of young trial lawyers who work for the public defenders office are motivated by a sense of duty to the constitution and the rule of law. They can’t be in this line of work for the money because the pay is terrible. They often are required to fight losing battles for unpopular clients, but confidence in our judicial system would collapse without the dedication of these professionals. These lawyers are deserving of our admiration because without them a vast number of our less fortunate citizens could never be assured that they were receiving a fair trial.
The Government has huge resources available to prosecute cases, and it is not unreasonable to require that a person unable to hire private counsel be provided a competent attorney to make sure the process is conducted fairly.

I am not unmindful of the pain an aggressive defense can have on a victim of a crime, but both the United States and Wyoming Constitution have placed important safeguards on the taking of life or liberty by the state. These procedural safeguards including the right to the effective assistance of counsel must be applied in a way were all are treated equally under the law, even poor people.

The attorney for the government and the defendant’s attorney usually begin talking about some kind of agreement as soon as the case gets filed. The deals can include agreements to dismiss some of the pending charges or not to prosecute the defendant for other crimes in return for which the defendant agrees to plead guilty to some of the charges or some reduced charge. The parties may also make an agreement on the penalty to be imposed by the court.

There are several reasons why the plea agreement process is an important part of our legal system. First, there are hundreds of criminal cases that are disposed of using plea agreements every week in the various courts in Natrona County. If each case were to be tried the system would crash under the sheer volume of cases. Second, jury trials are expensive. Most jurors are employed, and must therefore leave a job to sit on a jury. Each juror is entitled to be paid for each day they sit on a jury. A criminal case in our District Court requires a 12-person jury and most trials last at least 3 days. The taxpayers must pay the jurors for their service. Trials can also be expensive for the defendant. Expert witness fees and attorney fees will increase dramatically if a case goes to trial. Finally, jury trials are very risky to both the state and the defendant. If the government lawyers are having trouble locating a critical witness or if there is some problem with the evidence it may make sense to try to make a deal. Crime victims are also sometimes very reluctant to come into a courtroom to testify. With these kinds of problems the government may be very motivated to explore a plea agreement with the defendant. On the defendant’s side, the evidence may be so strong that a trial would risk the defendant being convicted of multiple crimes. The defendant may want to limit his potential exposure to multiple convictions or make an agreement that includes putting a limit on the possible sentence in return for a guilty plea.

The safety valve in this process is the judge. The judge is not a party to the plea negotiations and has the authority to accept or reject the agreement if he feels that it is not appropriate given the facts. Before the judge has to decide on an agreement he will usually order a pre-sentence investigation. This is a written report prepared by the Wyoming Department of Probation and Parole. It includes interviews with the defendant and his family and provides the court with a thorough history of the defendant. It also includes the defendant’s prior criminal history together with the facts of the current case. The probation officer is required to provide any victim of the crime with the opportunity to submit a victim impact statement. The probation officer then makes a recommendation on sentencing. If after reviewing the PSI the judge decides to reject the agreement he will give the defendant the opportunity to withdraw his plea and to go to trial. If the defendant doesn’t back out after being advised of the rejection the judge is free to sentence the defendant to a sentence outside the terms of the agreement. If the judge accepts the deal then he will sentence the defendant according to the terms of the agreement.

Plea agreements are a necessary and cost effective tool in our system, and they are followed by the court only when an impartial judge decides that the agreement is in the best interests of justice.

The law in this area is not complicated. You must be 21 to drink legally in this state. If you drink alcohol before that age you are committing a crime. The penalty for this crime may be up to 6 months in jail and or a $750 fine. It’s also against the law to use a fake ID to purchase alcohol, or to be in possession of an altered driver’s license, or to drive a car after drinking alcohol. If you get in a wreck after drinking and hurt someone the penalty goes way up. A first time drunk driver can quickly wind up in the Wyoming State Penitentiary. No probation, no first offender, no breaks, do not pass go, do not collect $200. If you kill someone your life will never be the same. There is no way to undo this kind of damage. I know some of you are thinking that it could never be you. Thank God most kids get through this part of their lives avoiding an aggravated vehicular homicide charge, but the legal issues are not the only consequences of alcohol abuse.

Alcohol reduces your inhibitions. People do things under the influence of alcohol that they would never do sober. I think it has something to do with fitting in, or perhaps attempting to medicate this amorphous general feeling of angst that most teenagers feel from time to time. I grew up in Casper, and drinking was the cool thing to do when I was attending NCHS. A couple of my friends were killed in car wrecks after drinking. One got drunk and shot himself after a girl broke his heart. I remember another girl that was truly special. She was an honor student, had a lot of friends, a good family and everyone knew she was going on to do great things in her life. She got drunk at a party one night, and with her usually good judgment anesthetized by alcohol, made a poor decision concerning a sexual encounter. Looking back on it, that night changed this wonderful girl’s life completely. She got pregnant and all of the sudden she was attending parenting classes instead of getting the college education she desperately wanted. I still see her once in a while at the supermarket or the mall. When we talk, I can see that the sparkle her eyes had before that night has never returned. She seems happy enough, and she has several children now. I just can’t help but wonder what her life would have been like if she had not decided to drink that night.

There is usually one kid in any group that always has a way to get alcohol. He is usually the leader of the group, the life of the party. Everyone wants to be around this kid. It wasn’t until I got much older that I realized that this was the kid that needed the most help. I look at alcohol abuse now as a symptom for something much more serious. The problem is that these are the kids who screw it up for the rest of the kids. They need to medicate their own pain, and so they prey on other kids who want to fit in by making alcohol abuse a condition of membership in the group. Nobody wants to drink alone. If you know a kid like this, take a good look at him. If you look close enough you will see what I am saying is true. Intuitively I bet you already know the kid I am talking about. The next time you are around him just sit back and really notice what he is doing and why. Then ask yourself, is that what I want to be?

Please don’t drink today.

I was in the technology courtroom in Federal Court down in Cheyenne two weeks ago and it was absolutely amazing. There were two huge flat screen television monitors on the wall so that anyone in the gallery could see the same document the witness was looking at while testifying. The judge, jurors, attorneys and witness all had a TV monitor in front of them. When one of the lawyers wanted to ask about a document, he would just place the document on a display table and it would immediately appear on everyone’s screen. One of the lawyers asked a witness about a telephone conversation that had been recorded by the Government. When the witness denied that the defendant had said some particular thing, the Deputy U.S. Attorney turned to one of his legal assistants and asked, “would you please play the tape of the conversation taped on July 1, 2006, from line 1009 to 1016?” The legal assistant typed furiously on a laptop for about 5 seconds and immediately the taped question and answer played through the sound system where we all heard the defendant say what the witness had just denied that he said. This is pretty powerful stuff in a jury trial.

Most law firms now scan every document that comes into the office each day. A digital image of the document is saved on a server (a big storage computer that everyone in the company has access to). If one of the lawyers or legal assistants wants to look at the document, they can pull it up on their laptop while sitting at Starbucks at DIA. You want to see the digital image of the x-rays or MRI of an injured person’s neck taken on March 13, 2003? No problem, just a little typing and presto it’s right in front of you. Then you can email the image to anyone anywhere in seconds.

This process is not without significant risk. If your company communicates by email, like most, these documents are stored on the server. If your company gets sued, these documents are discoverable. This means that if the person suing your company wants to see all emails on a particular subject, your information technology supervisor may be required to go get them off the server and provide them to the other side. You can’t believe the dumb stuff people say in emails. It’s like as soon as they send them they are gone forever. Now, shortly after a suit is filed in a Federal Court the parties must meet and decide if there are electronic documents that are relevant to the case. If so, the parties are required to identify the types of documents and agree on if and when they are produced during the case.
The new rules in Federal Court require that all documents filed in the case be filed electronically. You can’t just go down to the courthouse and hand a human being a document to be filed. You must file the documents online. They still have very friendly human beings in Federal Court; they just don’t want all your paper.

Technology is changing so fast that even young trendy hip tech wizards like myself are having trouble keeping up. Ok, maybe I am not so young and trendy anymore. Having access to a Supreme Court Case doesn’t do you much good if the print is so small that you can’t read it. Every time I put that complicated flipping phone in my pocket it automatically called my brother. They call that the speed dial function where all you have to do is touch one button and it dials all the numbers automatically. Sometimes I say unflattering things about my brother, and I don’t want my phone to decide on its own to call him so that he can listen. I gave my whiz-bang phone to one of the young guys at the office. Now I just have a plain old phone, it doesn’t weigh 2 pounds and it only calls my brother when I want it to.

The mailings we all get for these cards have a little booklet which comes with the application. The application I received today contained a booklet called the Summary of Credit Terms and Conditions. I did pretty well in Contracts while in law school so I thought it might be fun to sit down and read the summary and evaluate the real terms of the deal they were offering. You might be surprised what’s in that little book.

First, in the letter that came with the book they told me that I could have a 4.99% interest rate “for life’ on balance transfers. That sounds like a pretty good deal because I intend on living a long time, but there was a footnote to this language. The footnote which was located several pages later and which was written in microscopic print said I could have that rate unless the company decided otherwise. Essentially, the company had the right to change the deal if I had anything in my credit history which increased the risk that I couldn’t pay the money back. Credit card companies call this a “universal default.” Even if you keep your credit card payments current, the company can use a default on a car, house, telephone or other type of bill to support jacking up your interest rate. They can do this automatically after giving you 15 days notice.

The interest rates are different depending on the type of transaction. For example, cash advances carry a higher interest rate than regular purchases and there is a fee for using those little cash advance checks they send you. These fees are not calculated as being part of the rate. When you make a payment the company will credit the principal payment to the lower interest balance saving the higher rate balance for last.

Late fees can be as high at $39 on this card, and the company must receive the payment by the due date or the late fee applies. I got a credit card statement from one credit card company that was dated December 20. I did not receive the statement until January 6th. The payment was due January 15th, so I only had 8 days to get the payment to the company before it was late. If it had been late they would have charged me the late fee and could then raise any low interest balances I might have on this card or any other credit card I had, even ones not issued by this credit card company.

Another thing to keep in mind is that if you only pay the minimum payment on the bill each month it may take many years to pay off the balance. The credit card companies have strongly resisted congressional attempts to require the companies to tell the consumer how long it will take to retire the present balance on the card if only minimum payments are made. Why don’t they want you to know that?
When they tell you that you were pre-approved for some low rate, the Summary says that after you fill out the application the company gets to decide whether they will actually honor the low rate. They can increase the interest rate if they feel like it, and there is nothing you can do about it except not use the card.
By using the card you agree that the company can tell other credit reporting companies about your payment history. They don’t need to inform you when they do this.

I watched an important television program the other night about credit cards on the PBS program “Frontline” (www.pbs.org). Before you charge out and use that new credit card, spend a little time on the Frontline web site and remember that if it doesn’t look right, it probably isn’t right!

However if the state does provide due process then, under very limited circumstances and court oversight, a person can be hospitalized without his consent. The process developed under Wyoming law does allow for the state to take over our psychological medical care, but this is a very narrow exception to the general rule that we are free to make our own medical decisions, and the state may only do so after demonstrating a necessity for the hospitalization at a fair hearing.

The process that must be followed by the State of Wyoming to commit a person is called an involuntary commitment. The process is only available when a person becomes a danger to himself or others as the result of a mental illness. The process must be very strictly supervised by the court to insure that the person is treated fairly, and that any commitment last only as long as necessary to remove the danger.
The process begins when a law enforcement officer or mental health care provider has reason to believe that the person suffers from a mental illness that causes an immediate threat to himself or others. A mental illness is defined as a physical, emotional, mental or behavioral disorder that causes a person to be dangerous to himself or others and which requires treatment. There are basically three ways a person can be considered to be a danger to himself or others, including recent threats or attempts of suicide or serious bodily harm; threats or overt homicidal acts against others; or that the person is unable to satisfy his basic needs for nourishment, essential medical care, shelter or safety so that a substantial probability exists that death or serious debilitation will immediately ensue unless the person receives prompt and adequate treatment for his mental illness.

Initially, the person may be detained for 24 hours to allow for an evaluation by a mental health examiner. If the examination reveals that the person is a danger to himself or others, he can be held for an additional 72 hours, but he is entitled to a hearing to evaluate all of the evidence. These hearings often occur at the hospital where the person has been detained. The person committed is entitled to have a lawyer at this hearing and, if they can’t afford a lawyer, one must be provided. If the Court determines that the person is not a danger to himself or others, it will order that the person be immediately released. If after this hearing the person is determined to be a danger to himself or others he can be held for up to 10 days pending a second hearing. During this 10-day period, treatment may include evaluation and in very extreme circumstances the administration of medication.

At the next hearing the Court must determine whether to continue the hospitalization or release the person. The person has a right to demand a jury for this hearing. If the Court decides to continue the detention, the person is placed in a hospital which will provide the least restrictive and most therapeutic treatment necessary. The detention is reviewed after 90 days and if continued, must be reviewed thereafter on a 6-month basis.

If after the second hearing the Court determines that the person no longer poses a threat to themselves or others, it will order that the person be released. The Court can place restrictions on the person being released, including ordering that the person continue a medical treatment plan; placing restrictions on travel or the use of alcohol or drugs, or any other reasonable condition the Court deems necessary to avoid a recurrence of the danger.

This process is generally the last resort for a person suffering from a mental illness and the increased abuse of alcohol and illegal drugs in our community make this a very necessary process. Patrick Henry was right in principle, but I bet he never met a meth addict.

I see this most often when we are in settlement discussions in a case.  Usually my client has been very badly injured, or perhaps has filed suit for a loved one who has been wrongfully killed by the negligence of someone else.  Frequently these people are very sad and they want their lives to go back to normal.  They want their injuries to be cured; or they want their loved one to be brought back to life.  Unfortunately a courtroom cannot do either.  It would be great if we could just have the jury place hands on the injured person and make it all better, but it does not work that way.  The only way a courtroom can have an affect on an injury is to award a sum of money.  This may sound crass, but that is how the system works.

When injured people begin settlement negotiations it is fairly common for them to be unrealistically high in their settlement demands.  Adjusters and defense lawyers like to think that this is because of greed, but it has been my experience that it almost never is.  These people have been hurt in some way and they are angry about it.  The anger may be below the surface but I guarantee it is there, and it is playing a major part in the settlement negotiations.  No one wants to look at the real pain or anger in the case because it makes everyone feel uncomfortable.  The defendants would prefer to just talk about money.  The injured Don Quixote wants to focus on right and wrong.  He wants to triumph over evil, but this is not an available solution in a lawsuit.  Ultimately, it can only be about money.  In the end, the decision to settle a case is primarily a business decision.  When I am representing Don Quixote, I try to encourage him to negotiate based upon his best interest, not what he believes he has coming as a matter of right.
Luckily, Don Quixote had a friend that goes with him on the quest.  He picks his neighbor Sancho Panza to be his squire and it is his job to point out that windmills are not giants.  Just like Sancho, a lawyer’s job is to help keep the client focused on the realities of the situation.

Don’t get me wrong, right and wrong do matter, and when they really do, it may be that a trial is the only answer.  But in most cases avoiding a trial is a very desirable outcome.  Litigation has enormous risks and is very expensive.  I have yet to walk out of a two-week jury trial and have my client tell me that they had so much fun they can’t wait to do it again.  In fact, most times they look at me and ask how on earth could I do this for a living.  Trials are very rarely in anyone’s best interest.  The financial and emotional costs of a trial are enormous.  If you do take a case to trial it should not be because you want something the jury cannot give you.  Tilting at windmills is not an effective litigation strategy.  The old saying that discretion is the better part of valor should always be a consideration when Don Quixote is your client.

To evaluate a situation where a contingent fee would be required I think it would be helpful to use an example. Let’s assume for the moment that you are injured in a car wreck. Some drunk runs a stop sign and bashes into your car breaking your back. You did nothing to cause the wreck, but all of the sudden you owe a huge medical bill to the hospital for saving your life. You are in severe pain and can no longer do the things you enjoyed doing before the crash. You can’t work because you are in a body cast. Your physician tells you that it may be months before you can return to work, if ever. You fall behind in your house payment, and the utility company wants to turn off the utilities at your house because you don’t have any money to pay the bills. Collection agencies begin to call your home and start harassing your wife and kids. You can’t even go to the pharmacy to get your medicine because your car was destroyed in the crash. How likely is it that you will have the money to pay a lawyer an hourly fee to get the drunk’s insurance company to pay you a fair settlement? The truth is that you are in a pretty vulnerable position, and your negotiating position is going to get worse over time. The drunk and his insurance company know this.

Add to this the fact that the drunk driver who hit you will be represented by a lawyer that charges by the hour. His attorney’s fees will be paid by the insurance company. The defense costs of the case won’t come out of the drunk driver’s pocket. Usually the insurance companies hire the best lawyers they can find in a community to represent their interests.

As the injured person, your own car insurance company will not pay for your lawyer to sue the drunk driver. Collecting a fair settlement from the drunk driver will now require that you negotiate with one of the best lawyers in your community. So, the question then becomes: How good of a lawyer are you?

With contingent fees, the people who are injured under these terrible types of circumstances are not locked out of the system. They can hire good lawyers who will protect their rights even if they don’t have a lot of money.

There are people who think that contingent fees just encourage unnecessary litigation. This is not true. I can tell you that the trial lawyers who do cases under contingent fee arrangements quickly learn to realistically evaluate the cases they take. If your fee is contingent on winning, it makes it a little more likely that you will pick your cases carefully. This process has a tendency to weed out the frivolous or marginal cases before they are filed.

A contingent fee is one of the only ways our system can level the playing field for people who get hurt and need legal help. It is the only way to assure that the injured people in our community are treated fairly without regard to how much money they have. We do not want a system where the operative question becomes: How much justice can you afford?

I think we should be clear about what courtrooms are. We all learned in civics class that courtrooms are sacred places where the citizens of our community come to find justice. That is what they are, but over the years I have come to see our courtrooms more as a place where the unsolvable problems of our society get solved. This can be an ugly business. We expect our judges, lawyers, juries and court personnel to handle the problems that can’t be fixed anywhere else. The reality is that far from being perceived as a sacred place, some people view our courtrooms as places where violent angry people come to feel frustrated.
Usually, when people come to court they are not happy about being there in the first place. They have come because they have been arrested or they are a party to some civil dispute. Very few believe that they have done anything wrong. When they lose the case, they associate the loss with the people involved in the process. Here, the faces of the judges, jurors, witnesses or the lawyers on the other side become the face of an amorphous justice system that has done them wrong.

We need to rethink how we protect everyone in our courtrooms. I went to a hearing the other day and walked straight into the judges office. I could have been carrying a rocket launcher, and no one would have known. The Natrona County Sheriff’s Office does an excellent job of providing security given the resources they have, but based upon the enormous increase in the volume and severity of the cases our courts are processing, it is just a matter of time before we have a catastrophic event in one of our courtrooms.
It would be easy to have shotgun toting sheriff deputies at every doorway in the courthouse, but this would create such an intimidating atmosphere that there would be no such thing as a presumption of innocence. Defense attorneys have long argued that having a client in leg irons with heavily armed deputies around scares the jury. This becomes an implied message that the person under such security must be very dangerous, whether he really is or not. Cheyenne has a fully staffed security entrance that everyone must pass through to gain entrance to the courtrooms. Once inside the security area a far more toned down security presence is permitted. There is no such system in Natrona County, and people are permitted to walk right into the courtrooms without any pre-screening security. Onlookers are permitted close and easy access to prisoners because the courtrooms are so small that people are on top of each other. This is a design problem, not a staffing problem, and it is just a matter of time before the unthinkable happens. There have been numerous incidents in the recent past where our judges have been in heated exchanges and even physical confrontation with criminal defendants. Some domestic relations cases are a direct result of violent physical abuse, and there is no reason to the think that it will stop when the perpetrator enters a courtroom.
Before you shrug this off as a problem that does not affect you, remember that you may wind up as a witness, spectator or juror in court when a real rodeo breaks out. I would encourage all of our citizens to support building a new and safe courthouse. Until this is done, we are all at risk.

In Wyoming the court will decide the custody issue based upon what it finds to be in the best interest of the children. This is a standard that creates room for argument, and the court has broad discretion in deciding which factors to consider in coming to a decision.

Our legislature passed a law that requires courts to consider nine factors in deciding which custody arrangement will result in the best interests of the child. These factors include the quality of the relationship each parent has with the child; each parents ability to provide care; the fitness of each parent; the willingness of each parent to accept the responsibility of taking custody; consideration of how the parents can best maintain a relationship with the child; consideration of how the parents can best communicate with the child; the custodial parents ability to allow visitation with the other parent; the geographic distance between the parents; the childs current physical and mental abilities; and finally any other factor the court finds to be relevant. The legislature did not provide a cook book approach to interpreting the weight to be given each of these factors. The ultimate decision is left to the judge.

Thankfully, most parents are able to come to an agreement on custody without submitting the issue to the court. Most divorce and paternity cases are settled by the parties prior to trial. This saves the children from living through a fist fight between the parents which inevitably results in hard feelings that can last a lifetime. These hard feelings are not just limited to the parents, as grandparents and other family members are also frequently impacted by this decision. It is hard to imagine how destructive this battle can be for a child caught in the middle if the parents can’t agree and the issue goes to trial.

It is easy to blame the court or the lawyers when a custody decision turns out badly. A decision that results in a parent losing daily contact with a child will have terrible consequences even under the best of circumstances. No one can rejoice in a custody placement that separates a parent from the child. Even the parent that is awarded custody must be mindful of the consequences of such a drastic event in the Childs life. This is truly a lesser of two evils evaluation by the court. The child must be given the best chance to thrive, no matter how painful the resulting parental separation may be. This is the only way the system can respond to the destruction of a family unit.

So if you are currently embroiled in a custody case please keep in mind that the pain resulting from these cases is the inevitable product of divorce, not a glitch in the legal system. Also remember that everything you do or say should be based upon what is in the best interest of the children.

Let’s start with the injuries. If you are injured you obviously should seek medical help, but who pays for it? A quick trip to the hospital can cost thousands of dollars. The immediate answer to this is that you or your insurance company will have to pay first. I am always surprised at how many people only carry liability insurance. Liability insurance will only cover you for damage you do to someone else. If you get injured in a car wreck and you don’t have medical payments coverage you must pay the medical bills out of your own pocket or use your own health insurance. This is true even if the other guy was at fault. His insurance company will only pay your medical bills when you prove he was at fault or the case is settled. This process can take years. I can guarantee you that the hospital will not wait for years to get paid. Medical payments coverage will cover your medical bills if you have this type of coverage but you must stay within your coverage limits. If you go over the limits you must come up with the balance. If you don’t have it, you should. A lot of insurance companies sell low limit insurance policies, but you get what you pay for. Cost is always a consideration when buying insurance but this is not a good time to scrimp on coverage. Make sure your limits will last more than five minutes in an emergency room.

What about your car? If your car is totaled, and you do not have insurance to cover the loss, you must again wait until you settle your case or win at trial. This, of course, assumes that the wreck was not your fault. If it was, you are on your own. Frequently we see people who have reliable older cars with lots of mileage. It may be a car that your grandmother bought for you years ago and it is steeped with sentimental value to you. You will quickly find that the adjuster for the guy who caused the wreck will not appreciate the scope of your loss. He will pay you no more than the blue book value of the car, period. The fact that you cannot replace your car with an equally reliable car for the money they offer is not his problem.

If the wreck was not your fault, one of the first people you will hear from is the other guy’s insurance company. His insurance company will have an adjuster call you to take a statement. The adjuster works for the insurance company and he is not on your side. Remember that when you talk to him. I always participate in these discussions when my clients talk to adjusters to make sure the adjuster does not ask unfair questions. It has been my experience that most adjusters are decent and fair people, but there are exceptions. In any event, this is a critical event in the life of a car wreck case and it is not a good idea to talk to an adjuster when you are in the hospital on a morphine drip. You need to have your head in the game when this statement is taken.

If the wreck was your fault, you should immediately contact your insurance company and tell them what happened. If you don’t cooperate with your insurance company it could lead to losing coverage for the loss. You should also keep in mind that your best interest in the case may be different than your insurance company’s interest. It is not a bad idea to check with your own lawyer during this process to make sure that your own insurance company is doing what is necessary to protect you.
When a car wreck victim asks me whether I think they should get a lawyer I am always reminded of the old saying that a man who acts as his own lawyer has a fool for a client. There is nothing stopping you from acting as your own lawyer just like there is nothing stopping your from performing your own knee surgery if you want, but you sure may not like the result

An insurance policy is really just a contract between you and your insurance company. The contract has various types of situations you can purchase insurance to cover. The more types and amounts of insurance you buy the more it costs. Liability coverage protects you from claims from other people you may hurt in an accident. Medical Payments coverage will cover your medical bills. Comprehensive coverage covers damage to your car from collision or other types of damage. The amount of coverage you purchase is called the policy limit. If your injuries go beyond the policy limit you are responsible, not your insurance company.

Wyoming law requires that all drivers in this state maintain at least $25,000 in liability insurance coverage. You must prove that you have insurance when you purchase your license plates. The idea behind this law is that our legislature has decided that if you are going to use our roads, and make a mistake while driving, you must be able to compensate the people you hurt. Unfortunately, in most serious injury cases $25,000 does not go very far.

There are two serious issues people frequently overlook when purchasing car insurance. First, do you have coverage for an uninsured motorist? The law may require that all drivers have insurance, but remember that some people break the law. If an uninsured driver crashes into your car, if you don’t have uninsured motorist coverage on your policy, you may not have any insurance that will protect you. The second type of coverage you should have is underinsured coverage. This insurance would apply where the driver that crashes into you only has minimal policy limits and the cost of your injuries goes well beyond his limits. I have people tell me that they are fully protected because they purchased “full coverage insurance.” This is a meaningless term. It is your responsibility to make sure your coverage and limits are adequate and, if it isn’t, you should keep in mind that a week or two in a hospital could cost hundreds of thousands of dollars. If the guy that hit you only has $25,000 in coverage or worse, no insurance at all, you are going to be on the hook for the balance of your expenses.

Generally uninsured and underinsured coverage is reasonably inexpensive insurance. You may also want to look at what is sometimes called an “umbrella policy.” These are insurance policies that kick in when your primary insurance policy limits are exhausted. This is very affordable insurance and can increase the level of your protection dramatically.
The idea is to buy insurance to protect yourself and family. You should never rely on the other drivers on the road to make your insurance decisions for you.

It is always a good idea to talk these issues over with your insurance agent and lawyer to make sure you are covered. Try this exercise. The next time you pull up at an intersection, look at the guy beside you in the old beat up truck with no taillights, cracked windshield and a fender hooked to the frame with barbed wire. Ask yourself if you think he has purchased enough insurance to protect you and your family. If you think so, think again.

Insurance companies are like any other company, they are in business to make a profit. There is nothing wrong with that, but insurance companies have a duty to treat the people they insure in good faith. Sometimes they don’t do that. If you think about it for a second, an insurance company may have millions of claims in a year. If they save a dollar on each claim, they have saved millions of dollars. The economics of the insurance business presents a temptation to shave a little on each claim. Sometimes the temptation gets the better of an otherwise honorable company. When this happens there are things a consumer can do.

Anyone who has ever made a claim understands this process. You make the claim and your insurance company assigns an adjuster to evaluate the claim. An adjuster is a person who investigates and negotiates the settlement of a claim on behalf of the insurance company. The adjuster determines what the company is willing to pay on the claim and will make you an offer to settle your claim after concluding an investigation. If the company’s offer is unfair most people are reluctant to get into a fight with a multi billion dollar company, and so the tendency is to take your lumps and accept what the company offers you. The bargaining disparity in this process is one reason the insurance business is regulated by the state. Wyoming has an insurance code which covers most issues that arise in the context of an insurance claim.

The Wyoming Insurance Code prohibits unfair claims settlement practices by insurance companies doing business in Wyoming. An insurance company cannot misrepresent pertinent facts or policy provisions in the negotiations. They cannot ignore your communications to them, and must act reasonably promptly in responding to your requests. They cannot refuse to pay a claim without conducting a reasonable investigation based upon all available information. When liability on a claim has become reasonably clear, they must attempt in good faith to effectuate a prompt, fair and equitable settlement. They cannot force you to institute litigation to enforce your rights under the policy by offering substantially less than the claim is ultimately determined to be worth. If the company does deny your claim, they must provide a reasonable explanation of the basis in the policy in relation to the facts of your claim. If there is a dispute as to the value of your claim, the insurance company can only refuse to fairly compensate you if the claim is “reasonably debatable.” This term has been the subject of a number of lawsuits but the insurance company must always act in good faith in adjusting your claim

I spend a good deal of each day negotiating with claims adjusters on behalf of my clients. It is my experience that most adjusters are fair and reasonable people. Most are a little suspicious, conservative, and optimistic about your future prognosis, but generally they are good people who are trying to do the right thing. There are exceptions however, and just because some adjuster claims you are not covered or that your claim is not worth much does not mean you are stuck. If you and the company do not agree on the value of the claim you can demand that the claim be arbitrated or, depending upon the policy language, you can file suit against the company. If you win, you may be entitled to attorney’s fees. If you feel like you are getting jerked around by your insurance company you should call your lawyer. Insurance company misbehavior is not something you have to accept. You do have rights, and they are so easy even a caveman can do it.

All of the states have what are called “Good Samaritan” laws which are designed to get people to help out in emergencies. The scope of these laws vary significantly from state to state, but Wyoming provides a very broad range of protection to volunteers from civil liability depending upon the context of the care provided. The two main contexts cover physicians and surgeons or other people rendering emergency assistance at the place of an accident or emergency; and volunteers who regularly provide assistance to people through nonprofit organizations and volunteer fire departments. The law is somewhat different for each situation.

Physicians and surgeons or other people who render emergency care or assistance at the place of an emergency or accident cannot be sued personally for mistakes they make in dealing with the emergency so long as they are found to be acting in good faith. To qualify as a volunteer one must provide the service without any compensation. This means that if you are being paid to help at an emergency scene you are not a volunteer, and therefore you could be exposing yourself to civil liability for mistakes. These laws do not prevent lawsuits from being filed, but they generally absolve the volunteer from personal liability if the care is provided at an emergency scene, without a fee for the services, and the volunteer acts in good faith.

The second situation is where the volunteer does work for a nonprofit organization or a volunteer fire department. In this context, the volunteer is personally immune from suit so long as his actions do not rise to the level of willful or wanton misconduct or gross negligence. Willful or wanton misconduct occurs when you use bad or malicious intentions in providing assistance. Gross Negligence has been defined as the breach of a duty to exercise the level of care even an unreasonable or imprudent person would use in dealing with the situation. I suppose a simple example of this would be to try to use a hammer to stop a wound from bleeding. There is one important exception to the rule concerning volunteers working for nonprofit organizations. The immunity does not apply if while performing your duties you cause damage as the result of the negligent operation of a motor vehicle. In that case, ordinary negligence law applies.

Volunteers are the lifeblood of many of the organizations in our city, and they work hard every day to make the less fortunate people of our community lead better, safer and happier lives. So if you are not volunteering now, get going. There is no better way to say “I love you” than to have lunch with a perfect stranger trapped by a toilet.

Let’s start the discussion with a little history lesson. First of all, our democratic form of government is based upon the fundamental philosophical principle that the people have all the power. No government has legitimacy without the consent of the governed. This basic premise is articulated in Article 1, Section 1 of the Wyoming Constitution which provides:

“All power is inherent in the people, and all free governments are founded on their authority, and instituted for their peace, safety and happiness; for the advancement of these ends they have at all time the inalienable and indefeasible right to alter, reform or abolish the government in such manner as they may think proper.”

So when the people of the State of Wyoming ratified the Wyoming Constitution in 1889 they granted very specific powers to the government in order to allow it to function for our benefit and to preserve our various political and religious liberties. So, essentially a Constitution is a limited grant of authority from the people to the government which allows the government to function.

Presently, our Constitution prohibits placing limits on damages. Article 10, Section 4 of the Wyoming Constitution provides:

“No law shall be enacted limiting the amount of damages to be recovered for causing the injury or death of any person…”

Finally, the Wyoming Constitution also recognizes the age-old principle that all people are equal. Article 2, Section 1 of the Wyoming Constitution provides:

“In their right to life, liberty, and the pursuit of happiness, all members of the human race are equal.

In order for the legislature to place caps on damages a majority of the people must vote to change the Constitution. The legislature has now approved a Constitutional Amendment that will allow the legislature to put a cap on non-economic damages which are caused by a health care provider. As voters, we must decide it we want to delegate this power to the legislature to pass such a law.
The proponents of placing a cap on non-economic damages caused by health care providers argue that such a law will decrease the cost of medical malpractice insurance to our physicians, thus allowing our state to keep our good doctors. Those opposing caps argue that placing caps on non-economic damages gives health care providers special protections that no other negligent person gets. In addition, victims of medical malpractice do not get the same amount of protection as victims of any other type of negligence. They also argue that caps won’t work to bring down insurance rates for our doctors.

The net effect of the proposed Constitutional Amendment is therefore to shift the burden of paying for the damage caused by malpractice from the negligent health care provider who caused the injury to the victim who was injured. So here is the interesting moral dilemma: Should we reward negligent health care providers at the expense of their victims because it might help to keep medical malpractice insurance rates down? This is really the question we must answer in voting on the proposed Constitutional Amendment.

Amending the Constitution was designed to be a hard process in order to protect ordinary people from strong special interests that can muscle support in the legislature to further their specific political agendas. New York Times columnist Tom Friedman writes that America’s strength comes from a “… remarkable system of laws and institutions we have inherited– a system, they say, that was designed by geniuses so it could be run by idiots.” Whether genius is behind this proposed Constitutional Amendment remains to be seen.

Wyoming follows what we call the “natural accumulation of ice and snow” rule. Simply put, this rule provides that when someone is injured as the result of naturally occurring ice and snow the owner of the property is not responsible. The rationale for this rule is based on another rule which we call the “open and obvious danger rule.” This rule provides that when a danger is open and obvious to everyone, then we all must use care to keep safe. When we come in contact with danger caused by the weather, we are in the best position to decide what precautions should be taken at the very moment they are encountered. Natural winter conditions make it impossible for us to prevent all accidents on our property.

This seems simple, right? Well, before you sell your snow shovel we better talk a little about a big exception to these rules. Hazards which are not naturally occurring can create liability for the homeowner. To come within the exception the hazard must have been created or made worse by the homeowner; he must know or should know about the existence of the hazard; and the hazard must be more dangerous than it would have been in its natural state. For example, if the homeowner has a downspout that empties directly on a walkway which is located in a shaded area where water from the roof drains down and forms an ice sheet on part of the walkway. This would not be the natural accumulation of ice because it came from the downspout, not the sky. A homeowner has control over his own property and therefore he has the ability to either move the downspout or redirect the water. If he has lived in the house for a sufficient time to where he either knew or should have known that this area becomes more dangerous than other parts of the walkway then he has sufficient notice of the hazard to support liability. The homeowner is in a better position to foresee and prevent injuries from the downspout than someone visiting the property for the first time.

Now let’s talk about the special problem of wind. We all know a little about wind, don’t we? The other night the weather guy was saying that we could expect hurricane force winds here in Casper. Another thing we all know about wind is that sometimes it comes in gusts. One minute you can be walking up your driveway pulling your garbage can and the next minute you can find yourself in your garbage can with a black eye.
Our Supreme Court recently extended the natural accumulation rule to include wind in Valance v. VI-DOUG Inc., 50 P.3d 697,703 (Wyo. 1992). The Court held in this case that “In general, the possibility of a sudden gust of wind, particularly in Wyoming, is an obvious danger foreseeable to anyone.” However, in this case the Court went on to find that when a business owner put a sign on the front door advising patrons to “Please Hold Door Tight Due To Wind” he may have actually made the wind more dangerous to his customers. An elderly patron was severely injured when she held on to the door as the wind caught it throwing her to the ground.

I guess you just have to take the weather here in stride. Wyoming is not a wild and beautiful place in spite of the weather, but rather because of it.

Grand juries were originally created by King Henry II of England in the 12th Century to investigate and bring charges in criminal cases. Historically, when the King wanted to charge someone with a crime he just did so, and there was no check on his authority. Grand juries were created to require the consent of the community before a person was charged with a crime. The goal of introducing community standards in making this decision was thought to be a way to insure a more just judicial system. The grand jury concept was considered so important by the framers of our Constitution that it was incorporated in the Bill of Rights.
Present day grand juries have been criticized because the prosecutors who conduct these proceedings have so much power in how the evidence is presented. New York State Chief Judge Sol Watchtler once famously said that a good prosecutor could get a grand jury to “indict a ham sandwich”.
When a grand jury is convened, a group of citizens are selected to hear the evidence of a crime. The evidence is presented by a prosecutor. The focus is to decide whether there is probable cause to believe that some person has committed a crime. These juries do not decide the ultimate question of innocence or guilt beyond a reasonable doubt like regular juries in criminal cases, they just have to find that a defendant probably committed a crime.

Grand jury proceedings are conducted in complete secrecy, and the prosecutors decide what witnesses and evidence will be presented. Generally, a judge is not in the grand jury room when witnesses are testifying. The judge only comes in if there is a question about whether a witness who claims a privilege should be forced to testify. Witnesses who testify are not entitled to have lawyers with them in the grand jury room. The target defendant is not entitled as a matter of right to present evidence which tends to show that he is innocent of the alleged crime. The grand jury only sees what the prosecutor wants them to see.
Grand juries are frequently used in large drug or conspiracy cases because the prosecutor can issue subpoenas to force witnesses to testify under oath. If the witness refuses to testify he can be held in contempt of court. Prosecutors also have the ability to provide immunity to some witnesses in order to compel testimony about others. If the witness testifies falsely he can be charged with perjury or obstruction of justice. The grand jury is a very powerful tool for investigating cases where there are a number of people who may have knowledge about a potential crime, and it allows the prosecutor to compel testimony where the witness does not want to cooperate.

After the presentation of evidence, the grand jury must decide whether to approve an indictment which is written by the prosecutor. An indictment is a formal, written document that accuses a person of a crime. It is important to remember that an indictment is merely a charge of wrongdoing; it is not proof of anything.
In Mr. Libby’s case, the indictment alleges that he lied about his involvement in disclosing the CIA agent’s identity. Now he has been formally indicted for perjury and obstruction of justice. This is just the beginning of the process. Mr. Libby is entitled to a jury trial where Mr. Fitzgerald must prove beyond a reasonable doubt that he violated the law. This trial will probably occur sometime next year, unless he makes a plea bargain with Mr. Fitzgerald.

I think that even Edgar Alan Poe would have been envious of the diabolical notion of a grand jury. I know this may sound a little histrionic, but in my view, grand juries can be downright scary.

Law schools follow the “Socratic” method of teaching. This process consists of the professors asking the students questions and rarely, if ever, answering them. When I was in law school we used to call this playing “hide the ball.” Some teachers were better at it than others, but my third year Secured Transactions teacher was as close to diabolical as you can get. We affectionately referred to him as the “prince of darkness.”

Law school takes 3 years. The first year all students must take the required courses including contract law, torts, criminal law, property law and legal writing. The students are given casebooks which consist of a series of written court opinions which discuss a specific area of the law. The students must learn to read and understand the cases so that they can talk about them when they are called on in class. Generally, the case is discussed in terms of the facts of the specific case and then the student is expected to divine which of the sometimes many rules in the case is the critical one because the professor won’t tell you. Knowing the rule is helpful when the professor starts changing the facts of the case in class for purposes of discussion. The student is expected to know the important facts and the rationale supporting the rule so that he can discuss how the rule would be applied in a different factual situation. These fact changes are called hypotheticals, and the process is called legal reasoning. The professors don’t tell you when you are right, but when you are wrong, they delight in sometimes asking question after question to demonstrate that you are clearly wrong. The student is expected to figure out how things fit together so that when the exam at the end of the semester comes they can apply the rules they have learned to the exam questions. The exam questions usually consist of a factual scenario and the student is expected to evaluate the legal arguments raised by these facts and provide legal opinions about the likely result. In law school they don’t have pop quizzes throughout the semester so that the student can get a sense of how they are doing. You take one test at the end of the year and if you blow it you flunk. If you pass, it’s on to year two. This is a very scary process, and for a variety of reasons, first years think the people they are competing with in their class are a lot smarter than they are. You just don’t know where you are on the food chain until they post the grades.

The second year includes the study of the rules of evidence, civil procedure, constitutional law and some of the business law classes. This is a lot of work because there is a lot of information to read and understand. By the second year the students know what to look for and so it’s no big deal. Just do the work and you will be fine

The third and final year the students take mostly electives, including classes on topics like water law or oil and gas law. By the third year you know what to look for, and you know the things the professor is likely to put in the test. The third year is usually much easier than the first two years. This actually works out pretty well because by the third year you begin to stress out about the Bar exam.

The Bar exam is the test you must pass to be admitted to practice law in any given state. The Wyoming Bar exam consists of three parts. The first part is the Multistate Professional Responsibility Examination which covers legal ethics. This is a national multiple choice test that is usually taken in the third year of law school. The second part is the Multistate Bar Examination. This is also a multiple choice test which covers basic legal knowledge. The third part of the examination is the Wyoming Essay Examination. This examination consists of 11 essay questions and the student must provide satisfactory answers to at least 10 questions using Wyoming law.

If the student passes the Bar and they meet all the other requirements they are sworn in as members of the Bar. Once you get all that finished they throw you into the pit and your real legal education begins.

My first year property law teacher had a saying that I think sums up law school. He said “The study of law is a lot like my first kiss. It was stumbling, bumbling and ill executed, but replete with the promise of a brave new world.” I couldn’t agree more.

The process begins with the injured patient filing a claim with the panel which the provider must then answer. The claimant must then file a report prepared by an expert witness in the same specialty as the defendant provider detailing the medical basis for the claim. The provider then must file a report by an expert to defend the care provided.

The panel then conducts a hearing. This process was designed to be an abbreviated process and the hearings were not expected to last longer than a day or so. The panel then makes a decision, and issues a finding. The results of the panel may be admissible in any subsequent medical malpractice case against the provider if the judge decides to allow its introduction. This decision is up to the judge.

Filing the claim with the panel is mandatory for the claimant, but the physician can waive the process. This means that if the physician decides not to participate he can notify the panel that he has decided not to proceed. The claim process is then concluded and the claimant is free to file a lawsuit.

The injured claimants think this process is inappropriately silly because if the provider waives the panel, the whole process just becomes an extra and expensive step which must be taken by the injured patient before a suit can be filed. Also, it can delay the case for months because the physicians usually wait to waive the panel until the injured person is required to produce the expert reports so that the physician gets a head start on defending the claim.

Most malpractice defense lawyers that I know are advising their clients to waive the panel. They don’t like them because the providers are subject to cross examination on the record at the hearing, and a mistake there could present problems for the defense at trial. Also, if the provider were to lose at the hearing, it is possible that the jury would be instructed as to the panels’ finding depending upon what the trial judge decides.

The panel is required to conduct a hearing to determine if the claimant has proved by substantial evidence that malpractice occurred and, if so, whether injury resulted from the malpractice. This sounds simple enough, but in practice it could result in the hearing taking a significant amount of time. If, for example, the claim alleges that a physician failed to timely diagnose cancer. The primary defense in these cases is that the failure to diagnose the cancer did not harm the patient. Experts can argue about tumor size, depth, or growth rates, but a lot of the science can be disputed. Proof one way or the other could require the testimony of a number of different types of experts including oncologists, pathologists, surgeons, etc. This can cost both sides a significant amount of money to bring these experts to the hearing, and the ultimate decision by the panel will not end the process. After the panel makes its decision the suit is then filed and the parties go through the same process again at trial.

Without significant changes, the present medical review panel process can only be described as being an inappropriately silly way to avoid frivolous lawsuits. My guess is that the only person who would be truly happy with them is Don Imus.

The process is quite simple. You must file a petition with the court asking for help. There is no fee to do this. You must sign a sworn statement detailing the specific facts which constitute domestic abuse under the act. Essentially, domestic abuse is defined in the act to be “physical abuse, threats of physical abuse or acts which unreasonably restrain the personal liberty of any household member by any other household member.” If you are presently in the class of persons identified above, then you are entitled to obtain an order of protection from the court. Most courts have a standard packet of materials which make the petition easy to fill out and file.

After you file the petition, a judge will review your petition, and if it appears that you are in danger of further abuse the judge will immediately issue a court order directed to the abuser. This order will order the abuser to stop their activities and to keep away from you. The order may also provide that the abuser immediately leave the family home, stop any attempt to transfer or conceal your property, or the property of any children in the home. This order may also give you temporary custody of the children. The order will then be served on the abuser with a notice telling them that they must show up at a hearing to be held within 72 hours to determine if the order should be extended.

At the hearing the court will determine if you have actually been the victim of domestic abuse and, if so, the court will enter an order of protection that will last for 12 months. These orders can be entered even if the abuser fails to show up for court. This order will prohibit any contact by the abuser. It can also give you possession of the home, custody of the children, rights of visitation, temporary child support, spousal support, and even order the abuser to attend counseling.

If an order is entered and the abuser violates the order he can be arrested and may be subject to 6 months in jail and fined up to $750.00. It has been my experience as an attorney that Casper law enforcement officers will aggressively enforce these orders.

If you are in a violent relationship and you have children you should know a few important facts. Children who are present or are actual victims of this kind of abuse are likely to suffer emotional and developmental problems. Children may also try to intervene in violent confrontations and they are far more likely to get hurt if they get in the way. Witnessing family violence can set children up to be victims of violence/sexual abuse when they become adults. They also have a much higher risk of becoming involved in the criminal justice system for violent crimes, sexual crimes and for drugs or alcohol abuse. The most troubling statistic of all is that children exposed to family violence are likely to become batterers themselves.

Suffering family violence is not a choice, but living with family violence is. If you are a victim of this terrible abuse you can stop it now. It may be the hardest easy thing you ever did. If you can’t do it for yourself, do it for your kids.

The reason these rules are complicated is primarily based upon all of the different ways a dog can cause injury. We all know about situations where a dog actually bites someone. Then there are the cases where the dog barks at someone and they fall off your porch or trip when running from your dog, or when your dog chases a motorcycle and the driver becomes distracted and wrecks. The law is complicated because the ways a dog can cause injury is complicated.

Wyoming has three basic legal theories which impose liability on a dog’s owner, and if you own a dog you better listen up.

The first theory is called strict liability. This is where a dog owner knows his dog is dangerous because he has a history of causing trouble. The determining factor in these cases is the owners knowing of the dog’s dangerous propensities. Once you know you have a dangerous dog, you are liable for all the trouble he causes. This is really where the one bite rule applies, but it need not be a bite. If you know the dog likes to chase motorcycles and you do not properly restrain him you may be strictly liable for the damage he causes chasing things.

The second theory is that of negligence, and the analysis is based upon foreseeability of harm. In law this is frequently called the reasonable person standard. So, liability can be based upon facts which a reasonable man would know were likely to cause harm. If you have a friendly dog and a neighbor child is in your house bonking him on the head with a hose, a reasonable man would probably intervene to get the dog away from the child. Failure to act as a reasonable person can be evidence of negligence. There are other requirements, but I think the thing to remember is that the law expects us all to act reasonably under the circumstances, and failure to do so can create liability.

The third theory of liability is the violation of a statute. There is a Wyoming Statute §11-31-301, which prohibits an owner or custodian of a dog from allowing a dog to attack a person in a vicious manner. Evidence that the dog has attacked a person in a place where the person has a right to be is evidence of viciousness under the statute. The City of Casper also has an ordinance which prohibits domestic animals from running at large. Violations of either of these laws can be used as evidence of negligence.

Dog bites result in over 5 million injuries annually. About 800,000 need medical attention. Between 15 and 20 people die each year as the result of dog bites, and most bites occur to the face. Most of the victims of dog bites are children.

I have litigated a number of dog bite cases, and in my experience insurance companies view dog bite injuries to the face of a child as being very dangerous cases. The damages will frequently go well beyond the insurance policy limits in a standard homeowners insurance policy. What this means is that little fido could cause you to lose everything.

Dogs are wonderful companions. I have two perfectly worthless dogs that I couldn’t get along without. If you have a dog, and you want to keep your house, keep the little maniac on a short, strong leash.

Let’s start with the First Amendment itself so that if the McCormick Tribune Foundation people start nosing around Casper, we will be ready for them.

The First Amendment to the United States Constitution provides as follows:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press, or the right of the people peaceable to assemble, and to petition the government for a redress of grievances.”

So, let’s review: The five rights reserved by the First Amendment are freedom of religion, freedom of speech, freedom of the press, freedom to assemble, and freedom to petition the government for a redress of grievances.

Now, a word about the Simpsons. When I first heard about the McCormick study, I had never watched an episode of the Simpsons. I went down to the video store and rented a DVD collection. The Simpsons is an animated story about a family, but it is a lot more than just a cartoon. When I think of cartoons, I think of shows like Bugs Bunny, or the Roadrunner. Some of the topics for the Simpsons show include trade unions, Alzheimer’s disease, capitalism, the Irish Republican Army, homosexuality, TV violence, Disney World and alcoholism. This is not exactly Wyle Coyote strapping a rocket to his back. The truth is that it helps to have some idea about current events to even understand the show.

Let’s assume that the people that did the McCormick study are right. If only 1% of the people can name the five rights guaranteed by the First Amendment and only 22% of the people surveyed know the five names of all of the Simpsons, then 78% of the people surveyed flunked the memory test outright. I don’t believe that this survey proves that we are all a bunch of dopes.

One of the most interesting aspects of all this is that the First Amendment works beautifully for all of us, even if some of us can’t spout the First Amendment from memory. Most people studied the Constitution in high school and for some of us that was quite a while ago. Since that time we have been raising kids, earning a living, paying mortgages, learning computers, paying taxes and dealing with all the other complicated stuff that has become our lives. It is not surprising that most of us don’t go home every night and brush up on the Constitution while waiting for the Simpsons to start.

It would be nice to think that at the time the First Amendment was ratified the citizenry was composed primarily of Jeffersonian intellectuals who sat around lanterns reading the Federalist Papers. But that is not the way things were in those days. Most people at that time were farmers, teachers, or trappers, and some were outright scoundrels. They worked hard everyday, but they did the best they could. I would be surprised if 22% of the people that voted to ratify the First Amendment were capable of actually reading it. They did understand it though, just like most of us understand it. We all understand that we are free to worship, speak, read, gather together and gripe directly to our government. I see people in my practice everyday who are mystified as to how the law works specifically, but at some level we all understand that it does work. In fact it works beautifully. I think that the Constitution is about as close as you can get to a perfect document. If you don’t believe me you should go read it when you get time.

For the record, when I first read about the McCormick study I could only name two of the Simpsons, Bart and Homer. I have since learned that the others are Maggie, Lisa and Marge. All right McCormick boys, bring it on.

I always thought that you judged the quality of a tire by looking at the tread depth. If it had a lot of tread then it should be good for lots of miles. This is not true. Tires degrade over time just like anything else, but the sinister thing about tires is that they degrade just as fast whether they are being used or sitting on the shelf. A new tire sitting on the shelf at a tire store or in the trunk of your car as a spare for several years is just as dangerous and likely to fail as a tire that has been in use for the same period of time. The defects that will cause a tread separation are usually not visible to the naked eye and only a tire expert with specialized equipment can identify an aging defect before the tires fail. If you think you can just look at a tire to make sure it is safe you are mistaken.

To understand why this is true, you need to know a little bit about how tires are made. A steel belted radial tire consists of an inner liner, two polyester body plies, two steel belts, two bead reinforcing strips, the sidewall rubber and a tread. The manufacturers combine these ingredients and then put the green tire into an oven press where it is pressed and heated which causes the components to fuse into a completed tire. The process is called vulcanization. Fusing metal with rubber is a tricky process.

As tires age, they dry out and the adhesion between the steel belts and the rubber begins to break down. Oxidation, or air getting inside the inner liner of the tire, will accelerate this process and it will happen whether the tire is in use or not. The danger here is that as an old tire, even if it has traveled few or no miles and looks new, it is subject to this kind of failure due to age. When the top steel belt and the tire tread separate and become detached from the rest of the tire the driver usually loses control of the vehicle. If this happens at 65 miles an hour, your car may become impossible to control and you may not have much time to correct. Crash testing with trained drivers who are expecting tread separations have demonstrated that the loss of control can be nearly impossible to avoid.

In the US, there is no requirement that consumers be warned about the danger of old tires, but Audi, Volkswagen, BMW and Mercedes all began warning about the danger of older tires in their owner’s manuals in the early 1990s. They warned that tires older than 6 years old presented an increased risk. Most people would think the tires would last at least as long as the tread, or at least as long as the warranty but they don’t. A German study concluded that there was an increase in tire failures after two years and a continuous increase from the 5th through the 8th years with a dramatic increase in failure after the 6th year.

You can tell a lot about tires by looking at the DOT number on the tire. The numbers consist of 11 or 12 letters and numbers which will allow you to identify where and when the tire was manufactured. Since the Year 2000, the last four digits of the DOT number will tell you the week and year the tire was created. A tire marked DOT U2LMLR5107 would indicate that the tire was manufactured in the 51st week of 2007. Tires made before the Year 2000 have a different kind of code, but they are too old anyway so if any of your tires are older than 2000 they are dangerous junk.

In my case, my client was driving down a two-lane highway at 65 miles an hour in a pickup truck with 7-year-old tires with less than a thousand miles on them. They looked like brand new tires. The left front tire suffered a catastrophic tread separation and our expert calculated that my client had 1.77 seconds from the time the tread first began to separate to when his truck hit the car coming the other way at 65 miles an hour head on. Please go check your tires.

The fact is that you cannot take all the risk out of the things we do for fun. Our beautiful State is full of outdoor activities, but we must all remember that these activities can be risky. In Wyoming we have a law called the “Recreational Safety Act”, which recognizes that any person who takes part in a sport or recreational opportunity assumes the inherent risk associated with the sport. What this means is that the people who provide these sporting activities are not legally required to eliminate, alter or control the inherent risks of the activity. If you get beaned on the golf course or fall off a horse because golfers and horses do what they do, i.e., hit golf balls; or buck, run off, etc., you may be on your own if you get hurt participating in these activities.

Like all other things legal, there are complicated exceptions to most rules, and the Recreational Safety Act is full of exceptions. First, you must figure out whether the risk that causes the injury is an “inherent risk” of the sport. Inherent risks are risks that are inherent in the sport itself. When the injury is caused by an inherent risk your injury is your problem. If the injury is caused by a risk that is not inherent then the provider may be responsible. Falling off a horse because of a slipping saddle caused by a lose cinch has been found to be an inherent risk of horseback riding, but bumping your head on another passengers head in a raft may not be an inherent risk of whitewater rafting. Also, even if the sport is included in the act, it is important to consider the facts of each individual case. In one case a skier got lost in a ski area and wound up in a snowboard half pipe. She asked a ski area employee how to get out of the area. As she followed his instructions on exiting the snowboard park she was injured. The Recreational Safety Act does apply to skiing, but where the injury is caused by following the directions of an area employee a court concluded that the injury was not caused by an inherent risk of skiing because the injured person was not voluntarily subjecting herself to the risk of skiing in the half pipe. She was just lost and following instructions of an area employee.

Whether the activity is a sporting or recreational activity is also subject to some level of dispute. The usual sporting activities of baseball, softball, football, soccer, basketball, swimming, hockey, dude ranching activities, skiing, mountain climbing, river floating, hunting, fishing, back country trips, horseback riding, snowmobiling, and similar recreational activities are specifically included in the Statute. Those that are not specifically included may be found in the “similar recreational activities” section of the Statute. I had one case where we were fighting about whether waterskiing was included. You must also determine whether the person you blame is a “Provider” of a recreational opportunity. If you and a buddy are out playing golf and he beans you, the act may not apply because he was not providing the recreational opportunity.

These concepts are all based upon the legal notion of “volenti non fit injuria” – “he who consents cannot receive an injury.” For all you providers out there who are breathing a sigh of relief, just remember a good lawyer can find a hole in any Statute which is big enough to drive a truck through. Be careful, be safe, be smart, and enjoy Wyoming’s great outdoors.

Criminal cases are the result of an alleged violation of a criminal law. The criminal justice system is designed to punish the alleged wrongdoer, not compensate the victim. In Wyoming a criminal case begins when the District Attorney files charges with the court. Crime Victims are not parties to the criminal case, they are just factual witnesses to an alleged violation of the law. Victims in criminal cases do have input in how the case is resolved, but the District Attorney has the final say. In the Bryant case the victim wanted the case dismissed. The District Attorney could have forced the victim to go forward; but as a practical matter, it is very difficult to move forward in a criminal case without the cooperation of the complaining witness. The major difference between a criminal case and a civil case is the burden of proof. When you make allegations against someone in our system, you must be able to prove them. In a criminal case the State has the burden of proof. This means that if the State does not prove its case or “carry the burden” then the defendant wins. It’s like in baseball; a tie goes to the runner. The burden in a criminal case is proof “beyond a reasonable doubt.” This is a huge burden, and if you can’t prove your case to the point where no reasonable person would have a doubt as to guilt, the defendant wins. The defendant has the right to testify in a criminal case, but because of the 5th Amendment he cannot be forced to testify. The District Attorney cannot use the defendant’s silence against him.

Civil cases are cases between two citizens and generally involve compensation for some type of specific damage. Civil cases are brought in the name of the person who files the suit, and they are called the “plaintiff”. A plaintiff can represent himself but most hire lawyers. The case begins when the plaintiff files a document with the court which is called a “complaint”. The complaint is a written document that details the wrongful conduct of the defendant, and asks the court to order the payment of damages. The defendant then files an “answer”. The answer is a document that specifies why the defendant should not be ordered to pay the plaintiff any money. After the complaint is served and the answer is filed with the court, a trial is held to determine who wins. After the trial the court enters a judgment for the winner. The burden of poof in a civil case requires only that the plaintiff prove that the defendant should pay by a “preponderance of the evidence”. This means that the plaintiff need only prove that, more likely than not, the defendant is responsible for the damages. In terms of percentages, 51% proof is sufficient in a civil case where the percentage of proof required in a criminal case is just a little less than 100%. The defendant still has a 5th Amendment right not to incriminate himself and can refuse to answer questions in a civil case that might implicate him in a crime, but his silence can be used by the plaintiff in a civil case.

You may recall that OJ Simpson won his criminal case, but then lost the civil case for damages. He was ordered to pay a large sum to the family of the victims he was acquitted of killing. I think the differences in the burden of proof explains how a criminal defendant can win a criminal case but still lose a civil case with exactly the same evidence. The civil case against Kobe Bryant should be a humdinger. Stay tuned.

Disputes concerning contracts are frequently the subject of lawsuits because sometimes the parties make agreements and later disagree about the terms. The terms used may be ambiguous, or insufficient to cover all conceivable issues that may come up during the performance of the contract.

We had a classic contract dispute at our house a couple of weeks ago. It seems that the girls decided they wanted to go to Denver to see a concert. There was some band called “The Strokes” playing in downtown Denver on Sunday night, and it was their favorite band. They asked their mother if they could go a month or so before the concert. Their mother told them “you can go, but only if the weather is good.” The plan was to leave Casper on Saturday, go to the concert on Sunday evening, and return home on Monday. Now on its face this sounds like a simple contract.

Saturday morning arrived and the weather was glorious. It was Sunny, 45 degrees, and there was no wind. However, every weather forecast said that the southwest corner of the state was expected to get hammered with somewhere between 4 to 12 inches of snow on Sunday.

Catherine’s position on Saturday morning was that “the weather was good,” and therefore under the terms of the agreement, they should be allowed to go. Her mother said well, the weather is good today, but it is probably going to snow tomorrow and I said you could go “only if the weather was good.” To which Danielle replied, “Well the weather is good.” This is a classic contract dispute.

When a court is asked to decide who wins a contract dispute the primary objective is to determine the intent of the parties at the time the contract was made as expressed in the words used by the parties. If the contract is clear on its face, then the court will enforce the express terms. This is called the four corners rule, and the court limits its inquiry to the four corners of the document. Testimony about what the parties intended is not relevant. The court will just read the contract and enforce the terms. Because this was an oral contract, the express oral terms provided they could go “if the weather was good.” Mom argued that her intent was to allow the trip only if the roads were good for the entire trip. Danielle on the other hand wanted to strictly construe the contract to say that the weather was good on the day they planned to leave, and that was the deal.

If a court were to determine that the contract could be read in at least two different ways, it would then resort to the common law rules of contract construction. One of the rules of construction is to construe the contract against the drafter. This means that the person who drafted the language (Mom in this case) could have provided for this eventuality simply by saying “you can go if the weather is good, and the forecast is also good for the next few days so that you are not driving on any icy roads.” This was clearly her intent, but unfortunately for her, that isn’t what she said. Construing the language against Mom resulted in the girls winning the case. Actually, they would probably have won anyway because based on the contract language it is fair to argue that the language used indicates that the weather only had to be good on the day they were going. It was, and so they went.

Well, they had a wonderful time at the concert. It snowed hard in Denver and Cheyenne all day Sunday and they closed the roads. The girls were stuck in Denver for an extra day in a motel directly across from the Flatiron’s Mall, where I understand they also had a wonderful time. Mom was a wreck until late Tuesday evening when they finally got home.

Being the savvy lawyer that I am, I kept my mouth shut during the whole case, and prayed a lot. Sometimes keeping your mouth shut and praying is the best thing you can do.

Never has this point been made clearer for me than this last month when I was asked to be a judge in the National “We The People” competition in Washington, D.C. This competition is directed by the Center for Civic Education and funded by the U.S. Department of Education. The Competition was established by an Act of Congress in 1987. I have been judging at the state level for a number of years, and it was a great honor to be asked to go to Washington for the finals.

The program consists of having high school students study the history surrounding the U.S. Constitution in order to examine its relevance to contemporary issues. The culminating activity consists of a simulated congressional hearing where the teams are asked specific questions involving various constitutional issues. The teams then respond with an opening statement in response to the question. Then the three-judge panel asks the team questions to evaluate the level of the teams cumulative understanding of the constitutional principles raised in the question. The hearings are conducted just like a congressional hearing and the teams are then given scores based upon the teams’ technical knowledge, understanding, presentation and group participation.

Each state selects a team to send to the nationals. The state competition took place in December of last year and most high schools in the state had teams. Cheyenne Central High School won the Wyoming state competition, and represented Wyoming well at the Nationals in Washington. This type of training is invaluable to assist the student in preparing for college. According to the Center for Civic Education Web Site, several studies conducted by the Educational Testing Service and Stanford University indicates that students who participated in the program “significantly outperformed comparison students” on the topics studied. Since inception, some 28 million students have participated in the program with the help of some 90 thousand educators.

The quality of the presentations at the national level was amazing. It can be very difficult to get up in front of 75 to 100 people and be questioned about some complicated constitutional issue. Yet team after team was able to provide polished presentations and respond to complicated questions. The teams are provided a list of 3 possible opening questions and they are expected to be able to respond to each question. However, no warning is provided about the follow up questions raised by the judges. Watching these talented young people think their way through follow up questions was absolutely fascinating. Our questions were designed to make them think out loud, and the quality of the responses reaffirmed my faith in the upcoming millennium generation.

I don’t want it to sound like all these talented young people were just odd little supercomputers. They were smart, funny, polite, creative kids, just like the ones living in your basement. If you have a high school student at your house, I would strongly urge you to have them look into this valuable program.
The real contrast between the past and present occurred during a break, when I went to the National Archives to see the Declaration of Independence. As I was looking at this magnificent document, I noticed two young ladies standing beside me. Their coach said they were from Atlanta. When they noticed John Hancock’s prominent signature on the Declaration one said to the other “Wow, look at that, John Hancock, he’s my home dog!” I am pretty sure that John Hancock never dreamed that he was going to become someone’s “home dog” 231 years after he signed the Declaration, but I bet he would approve.

Of course we do have something to show for all the money we have spent. The number of people in prison in the United States for drug offenses rose from 41,000 in 1980 to 500,000 today. Federal, state and local governments spend 44.1 billion dollars annually enforcing drug prohibition. Presently, we spend 7 times more money on drug interdiction policing and imprisonment than on treatment, yet according to former Seattle Police Chief Norm Stamper, drugs are now more available, at lower prices, and higher levels of potency than ever before. We are funding violent drug cartels and international criminals in places like Mexico and Afghanistan who use the money we give them to destabilize governments, murder innocent people, repress women and generally fund obstacles to America’s legitimate foreign policy objectives. Prohibition also enables our local criminals to keep the price of drugs high so that they can make huge sums of money while at the same time terrorizing entire neighborhoods in our large cities.

California has been flirting with the idea of legalizing marijuana outright so that the taxes it would produce could be used to help with the fiscal crisis that state is now facing. Medical marijuana is now legal under California state law with a prescription, although it remains a violation of federal law. Recently, U.S. Attorney General Eric Holder said that the federal authorities will no longer raid medical marijuana stores in California. A Zogby poll done in April of this year indicated that 52% of the American public now favors legalizing marijuana so that it can be taxed and regulated. Opponents of decriminalization argue that liberalizing the drug laws will lead to an increase in use and addiction, but so far that has not occurred in California. Another recent Zogby poll found that 99% of the people surveyed said that if hard drugs like heroin and cocaine were legal they would not try them. So one could argue that we are spending 44 billion dollars a year to keep 1% of the population from taking the drugs that are readily available anywhere and that they were likely to take anyway.

Now that it has finally dawned on Congress that we just don’t have money to throw away on programs that don’t work, it seems that it is time to rethink how this country is going to move forward on the war on drugs. Wyoming considers possession of small amounts of marijuana to be a misdemeanor unless the person has been convicted of possession at least two prior times. A third time possession of even a small amount of marijuana is a felony punishable by up to 5 years in the penitentiary and or a fine of up to five thousand dollars. In addition, there is the loss of civil rights associated with a felony conviction. A felony conviction can have a devastating affect on a young person’s future and felony level violations should be reserved only for very serious misconduct. I am not saying that addiction isn’t a very serious problem, but I am saying that we should begin to talk about the way we deal with it. Harsh criminal sanctions do not seem to be working.
At least we don’t need to worry about it for a while. Spring break is still at least 6 months away, but Cancun is going to have a little different vibe this year. When the prodigal son asks to go to Mexico for spring break you can always suggest Disney Land. Oh wait, that won’t work, Disney Land is in California.

A divorce action is a legal process to end a marriage. In most respects it is like any other court case. One party files a lawsuit against the other party asking the court to enter an order ending the marriage and resolving the disputed issues.

Wyoming is essentially a no fault divorce state and it is not necessary to prove that you are entitled to a divorce because of some type of misbehavior by your spouse. The party seeking the divorce must show only that irreconcilable differences exist, and that they are the aggrieved party. Fault need not be proved, although it is frequently relevant to the two main issues in most divorce cases which are child custody and the disposition of property.

The court will award custody based upon the best interests of the children. This is not an exact science, but generally the court tries to determine which of the parties would be the best suited to take the children. Documented evidence that there has been child or spousal abuse is considered to be contrary to the best interests of the children, and if this is proved at the trial it is highly unlikely that custody will be awarded to an abusive parent.

The court will also determine the amount of child support to be paid to the party who gets the children. Child support is determined by a statutory set of guidelines which are applied unless there is some compelling reason which would cause the court to deviate from the guidelines. They are based upon the combined income of both parties.

The court will also divide the property. The court has the power to divide all of the property of the parties including the separately held property of either party. The court will seek to divide the property in a ‘just and equitable” way based upon the respective merits of the parties. The court will consider the condition each party will be in after the divorce, and how the parties obtained the property in the first place. Sometimes people assume that the court will automatically split the property in half. A just and equitable division of the property is more likely to be unequal because usually one party will be in a position to recover from the divorce much faster than the other.

Most divorce cases are settled prior to a trial. After a divorce case is filed, a request for a trial date will automatically cause the court to order that the parties attend a mediation session with a court appointed mediator. Mediation is a process where a neutral third party will look at the case and listen to the arguments on each side. The mediator will usually point out the risks involved in taking the case to trial and they may also offer an unbiased opinion on how the case will likely be decided.
If the parties are unable to settle the case, a trial will be held. With the present courtroom shortage, the trial may be set a year or more into the future. The delay presents a compelling motivation for the parties to compromise and get the case settled.

Divorce rarely brings out the best in people, and usually one party wants the divorce much more than the other party. This inequality in motivation can create an inequality in bargaining power which can be exploited by the party seeking the divorce. For this reason alone it is vitally important that you seek the help of a competent lawyer from the beginning.

The provision drawing the most fire is the mandate, which requires most people to either buy insurance from private insurance companies or pay some kind of fine or tax. The fine is supposed to be roughly equal to the cost of an insurance premium. In order for the program to work, most people will be forced to buy insurance or pay the penalty. The idea is to make the healthy individuals among us pay for insurance we hopefully will not use so that the insurance companies and the government will have enough money to provide benefits for the people who will need the insurance but can’t afford to pay for it. Whether Congress has the authority to make this kind of law is disputed by the States who have filed suit to block its implementation.
The analysis must begin with the 10th Amendment, which provides that any power not delegated to the federal government in the Constitution is reserved to the States or the people. So, if the power to write this kind of law is not enumerated in the Constitution then the law is unconstitutional.

Supporters of the bill argue that there are two separate clauses in the Constitution in Article 1, Section 8, which provide authority for the mandate. The General Welfare clause provides: “The congress shall have the power to lay and collect taxes…and provide for the… general welfare of the United States.” Supporters argue that the federal government has the power to tax and spend money for the general welfare of the people. So, if the penalty is really just a tax assessed in order to make health care more affordable and readily available to the citizens it will clearly increase the general welfare. The second provision is what is commonly called the “Commerce Clause.” This clause is often cited in conjunction with the necessary and proper clause of the Constitution to permit a broad range of regulations concerning any activity which substantially affects interstate commerce. Historically, the federal government has not directly regulated the insurance market, but national health care does affect interstate commerce, so the answer may depend upon how the Courts frame the issue.

Opponents argue that the government does not have the authority to force people to go into the private insurance market and buy insurance. They make a distinction in prior commerce clause cases where the government was seeking to prohibit people from doing something, and this case where they are actually commanding people to do something. They argue that the Supreme Court has never upheld a law which penalizes a private citizen who refuses to enter into a contract with a private company. In any event, opponents argue that the States have generally held the regulatory power over insurance companies. They argue that forcing people to buy private insurance goes beyond Congress’s enumerated powers and is therefore unconstitutional. This power to regulate insurance companies is a question of state law not federal law.

This issue is a lot more complicated than my brief explanation above would suggest, but there are a few things we do know. We do know for example that Acts of Congress are given wide latitude by Courts and legislative action is presumed to be constitutional. Another thing we know is that we don’t know much about what is actually in the reform act. If it turns out to be a good thing, I can’t imagine the Supreme Court would be in a hurry to rule in such a way as to breathe new life into the now allegedly defunct concept of pre-existing conditions. Still, I never dreamed that the United States Supreme Court would overrule 100 years of precedent in finding that Congress cannot put limits on the political free speech rights of corporations. Shows how much I know.

There are a variety of different rules that control the admissibility of evidence at a trial. The United States and Wyoming Constitutions can have a huge impact on the evidence at trial. Also, The Wyoming Rules of Evidence place important restrictions on the admissibility of evidence. These rules make the trial process a very controlled and structured exercise. A jury trial is about as spontaneous as a space shuttle launch. In evaluating a case a lawyer not only has to discover what the evidence is, but more importantly, he has to determine whether evidence is admissible. There can be a huge difference. If the best evidence you have is not admissible a jury will never see it.

The fight over admissibility of evidence actually begins long before the trial starts. In criminal cases, the primary way of challenging evidence is to determine if the evidence was obtained in violation of the defendant’s constitutional rights. For example, the Fourth Amendment prohibits unreasonable searches, and if the court determines that the evidence was seized during an unreasonable search, the evidence may be suppressed. This means that the government cannot use the evidence at trial. This is called the “exclusionary rule.” So if the police search the defendant’s house and find 100 pounds of marijuana during an unreasonable search, the government cannot introduce the marijuana in evidence. The practical affect of this may result in a dismissal of the case. This may sound harsh, but the policy reason behind this is to encourage the police to follow the Constitution. If they don’t, the evidence they find may be ruled to be inadmissible. This creates a strong motivation for the police to respect the constitutional rights of the citizens.

In civil cases the court generally specifies a deadline several weeks before the trial by which motions to exclude evidence must be filed. Usually, before trial the judge conducts a hearing to review these matters. Sometimes the judge will tell you whether some piece of evidence is admissible, but sometimes he wants to hear more about the case during the trial to get the proper context. Lawyers frequently have to make tactical decisions based upon what they think the judge might do on some evidence question, and this is why a crystal ball comes in mighty handy during a jury trial.

When the trial starts, the admissibility of evidence is mainly controlled by the Rules of Evidence. The rules cover a lot of different kinds of evidence and most rulings depend heavily on the facts and context of the case. Rule 102 provides that the rules were designed to “…secure fairness, eliminate unjustifiable expense, promote the growth and development of the law of evidence in a way to insure that the truth may be ascertained and judicial proceedings can be justly determined.” That being said, the rules can result in seemingly harsh and random results. The rules cover things like hearsay evidence, character evidence, evidence of a witnesses prior criminal record, offers of settlement between the parties, whether either of the parties has insurance coverage for the damages alleged, and many other areas too numerous to mention here.

Sometimes the rules can seem to be unfair in a given situation. If some critical bit of evidence is excluded in your case you may feel that you were not allowed to tell the jury the whole truth. If some hideous piece of evidence or testimony against you is excluded you may feel pretty good about the rules. Either way, you may not know if the evidence is coming in until late in the case. We call this the “hazards of litigation.”

It has been my experience that the rules are generally fair to both parties. The rules are quite complicated so it really helps when the lawyers and the judge understand them. You can’t be an effective trial lawyer if you don’t understand the rules, and one of the best things you can say about a trial judge is that he enforces them.

Under Wyoming’s Implied Consent law, if you are arrested for drunk driving, a law enforcement officer is entitled to demand that you take a test of your blood, breath or urine if he has probable cause to believe you were driving or in actual physical control of a motor vehicle on a public street or highway at a time when you were too intoxicated to safely drive.

If you take the test and it shows that you have an alcohol concentration of 0.08% or greater you are in violation of the implied consent law. This is called a per se violation, and is punishable by losing your driver’s license for 90 days. You can get a conditional driver’s permit or what some call a “work permit” allowing you to drive while working or going to school, but there are restrictions placed on where and when you are permitted to drive during the suspension period. Also, you are only entitled to one conditional driving permit in a 5 year period. If you take the test and the result 0.15% or greater then for the next 6 months you will only be permitted to drive cars with an interlock device that will not let the car start if there is alcohol on your breath.

When you are arrested for drunk driving the police will keep your driver’s license. They give you a document which acts as your driver’s license, but it is also an advisement of your rights concerning implied consent. You have the right to request a hearing to challenge the implied consent violation but must do so within 20 days of your arrest. If you do nothing, your suspension begins automatically 30 days after the arrest. If you request a hearing the suspension action is stayed until the hearing. The hearings are conducted by State Hearing Examiners and they are generally telephone hearings. If you lose at the hearing you have a right to appeal to the district court.

There are a number of potential defenses to implied consent violations just as there are for drunk driving charges. Each case is different and must be evaluated on its own merits. You should always consult a lawyer to advise you on implied consent violations.

Recently I have noticed a huge increase in DWUI arrests. Most of the people we see have no idea about implied consent until they have a problem. The best way to avoid an implied consent problem is not to drink and drive in the first place.

When we look at a case, we will generally ask one of our Legal Assistants to sit in on the initial client interview. In an accident case for example, we need to know all about what happened, how it happened, and what potential evidence may be available to support the claim. We will need to identify and locate any evidence that will be used to prove how the client has been damaged. Our Legal Assistants will start this process by gathering the available evidence including things like the accident report, photographs of the vehicles and the scene. They also identify, locate, and sometimes talk to witnesses who have information about the claim. They will obtain the medical records from the various health care entities which have provided medical care to the client and prepare summaries of the medical records, bills and accountings. They spend a lot of time dealing with the client in order to get all of this information. A seasoned Legal Assistant will develop intuitions about the case which they frequently share with the lawyers. Sometimes these intuitions can be very helpful information for the lawyer to be aware of as the case proceeds.

Initially, we usually try to negotiate the claim with the insurance company before filing suit. This process begins with our Legal Assistants pulling together all of the relevant evidence we can find to support the claim. The Legal Assistants usually will do a first draft of a demand letter that is ultimately sent to the insurance company to see if the case can be resolved early in the process.
If the negotiations with the insurance company are unsuccessful, the next step is to file a suit. This includes preparing and filing a variety of documents with the court. After the case is filed, the Legal Assistant will locate the Defendant and work with the process servers to make sure that the Defendant is properly served. Prior to filing the lawsuit, the Legal Assistant will create a first draft of the documents we send to the other side in a case to discover any additional evidence which may be in the Defendant’s possession. This process is called discovery and includes written documents called interrogatories and requests to produce documents.

In some of our larger cases there may be thousands of pages of documents which are produced in answer to the discovery requests. The Legal Assistant will review and catalogue these documents so that they can be located quickly when needed. After the written discovery is essentially finished, the case is ready for depositions. A deposition is a formal procedure where the lawyers are permitted to question the witnesses under oath. The Legal Assistant working on the case will usually attend the depositions to listen to the testimony and locate the documents the lawyers need during the deposition. After the depositions, the Legal Assistant will try to obtain any new documents that may have been identified in the depositions.
As the case gets closer to trial the Legal Assistant will keep a sharp eye on the various deadlines established by the court. These deadlines include deadlines for the listing of expert witnesses, fact witnesses and evidentiary exhibits that we expect to use at trial. Generally the court requires that summaries of each witness testimony be provided to the other side. A Legal Assistant will usually make the first draft of the documents we file with the court to provide this information. They must then compile our exhibit list and make sure that all exhibits are properly marked with exhibit numbers. Our Legal Assistants also compile and provide the information that our expert witnesses must read about the case so that their opinions about the case can be based upon all of the evidence available. They also make the arrangements for the experts to get to the trial.

At trial, the Legal Assistants act like air traffic controllers. They must schedule the witnesses and keep track of the exhibits. They can also take care of the unexpected problems that always surface in a trial.

Trial work can be a rough business and most successful trail lawyers that I know are somewhat obsessive and compulsive people to begin with. These are not bad traits for a Legal Assistant either.

First, it is important to recognize that there is a certain degree of bias against lawyers which is built directly into our system. Legal disputes involve at least two parties who usually see the facts of the case differently. If they agreed, there would be no dispute. Each side thinks they are on the side of truth, justice and light, while they view the opposition as being corrupt and inherently evil. This myopic view of a case allows the opposition to view the lawyer on the other side to be just as evil. They call this guilt by association. When a case is decided against a party they have a tendency to blame the opposing party, his lawyer, and the judge. They also may blame their own lawyer for a poor result. If you ask someone who has been involved in litigation and lost, they have a tendency to think the whole system is corrupt. Our business is unique in that when we win a case, the losing side can get angry at us, and when we lose a case everyone can get angry at us.

The image of lawyers on TV is also unfair. I was watching ER the other night and I feel that the image of doctors portrayed on that show is very positive, and it should be. If you watch legal shows like “Boston Legal” or “The Practice” you see lawyers generally portrayed as unethical and slimy. Charles Darwin once said that “great is the power of steady misrepresentation.” These TV shows do not accurately reflect how Wyoming lawyers practice law. It may make for good television, but it is not accurate.

Our system is based upon equality. People are supposed to be equal under the law. We all would agree with this proposition until we lose a case. Then, somehow instead of accepting personal responsibility for the actions which bring us into court we want to blame the system which includes the lawyers. People scream when some criminal gets away with something based upon some vague concept usually referred to as a technicality. This term trivializes what is actually happening. When judges dismiss cases it is generally based upon a violation of our Constitution. This should never fairly be called trivial or technical. Constitutional violations must always be a big deal. The Constitution applies to us all, and when it is violated against any of us it is violated against all of us.

Another problem with our image is that some lawyers really are better than others, just like some cars are better than others. If you have a lousy car you won’t get very far. The public perception is that when the side you are rooting for loses, somehow the system failed. The fact is that our judicial system is not perfect, and usually the better you know the system, the better you do. When we talk about equality in this context we mean that the same rules should be applied to all people equally. Some lawyers just know the rules better than other lawyers, and it is not fair to say that hiring a competent lawyer is somehow cheating.

In the old days, civil disputes were settled with weapons. If you were a good shot, you usually won. We could commandeer City Park and set it up so that every Friday our citizens could fight duels to settle disputes – we could rename City Park Zell Millerville. We wouldn’t need lawyers, we would all save money and we wouldn’t need a new courthouse. So, how good of a shot are you, really?

I went down south to visit some friends last month. They had invited a number of people to dinner one night and I sat next to a guy who owned a large RV dealership in California. When he found out I was a lawyer he started complaining to me about frivolous lawsuits. He told me that his company had been the victim of a frivolous lawsuit and that he was forced to pay a lot of money to settle the case. He said paying was cheaper than going to trial. I explained to him that the Courts have an effective way of dealing with lawsuits that have no merit. They can be dismissed quickly if there is truly no basis for the suit.
Being curious by nature, I began asking him about the facts of his case. As he explained the case it became clear that he was not a victim of a frivolous lawsuit. His company had committed fraud in the sale of an RV and they were caught red handed. That is why he got sued. Here is the story. He took one of the new RVs out of his inventory from the California dealership and took it up to Oregon for the summer and fall where he and his family enjoy spending time. After using the RV for 4 or 5 months they stored the unit at a friends RV lot in Oregon. During the winter a fire in an RV parked beside this unit spread to their unit. The roof on their unit was destroyed. They got the insurance money for the damage and were able to use their own body shop to repair the unit for less than the amount of money the insurance company paid them, so they made a profit on the fire. Then they sold the unit to an unsuspecting elderly customer in California as a new unit for full price. Later the customer needed some work done on the unit and discovered that what had been represented to him to be a new RV was in fact a used and damaged unit. This guy sold this unit as new when he knew it had been used and damaged.

First, this guy committed fraud in selling this RV as new. In this instance, the fraud consists of the dealer knowingly making a false representation of a material fact with the intent of inducing the buyer to buy the RV. The buyer paid full price for the RV relying on the dealer’s false statement that it was new, and as a result was damaged because this RV was not worth near what he paid for it.
Second, most states including Wyoming have strict consumer protection laws which protect people from deceptive trade practices. In Wyoming the law is called the Wyoming Consumer Protection Act and it provides that it is unlawful for a person to engage in deceptive trade practices concerning a consumer transaction. Representing that the merchandise is new when it isn’t is a violation of the statute. If this happened in Wyoming the dealer could not only be forced to give the victim his money back and pay the victim’s attorneys fees, but also he could be forced to pay a hefty civil penalty. If the person deceived by a deceptive trade practice is over the age of 60 or suffers a disability then the civil penalty is even larger. Based upon the money this guy paid to settle his case it sounds like California’s consumer protection statute is even harsher than Wyoming’s.

This guy was a crook, and it sounded to me like he got just what he deserved. The term “frivolous lawsuits” has become a catch phrase to cover everything that people think is wrong with the legal system. The next time you hear somebody complain about frivolous lawsuits, ask them to tell you all about it. You might just discover what Paul Harvey liked to call “the rest of the story.”

Before the trial starts, the attorneys for both sides are given the opportunity to ask questions of the potential jurors to determine if there is any reason why they should not be selected. Jurors over the age of 72 may be excused if they wish. The most obvious reasons that may disqualify a juror include mental or physical infirmity, felony convictions, necessary care of dependent children, or when the juror may suffer some material injury or damage to property entrusted to him. In most cases, the court will not excuse you for trivial reasons or for hardship or inconvenience to your business. The lawyers will ask questions of each juror to evaluate their potential for each case. If you do not get selected to sit on the jury it does not mean that you are not a fair person. Jury selection is not an exact science and the decision to pick one juror over another is usually based upon a variety of factors. Employment history is important, as is prior experience with law enforcement, or injuries similar to those at issue in the case to be decided. Relationships the juror may have to parties of the case, the lawyers or expected witnesses are also important factors. I was born and raised in Casper and it is very unusual for me to look at a jury panel and not find people like my high school science teacher, or my son’s high school science teacher. Each potential juror presents special challenges in picking a jury. Sometimes the process is about as scientific as flipping a coin.

After the jury is selected the case begins. Some courts will allow the jurors to take notes and ask written questions of each witness after the lawyers are finished with their examinations. After the case has been presented, the judge will read jury instructions. The jury instructions generally tell the jury how to deliberate and inform them as to the applicable law. After the case is submitted to the jury they are instructed to select a foreman and to proceed to decide the case. They are given a verdict form to fill out. This is where your vote really does count. As a member of the community you have the power to decide the case with the other members of the jury. Generally, the verdict must be unanimous.

After they reach a verdict the jury tells the clerk they have a verdict and the parties, their lawyers and the Court reconvene and the jury gives its verdict to the judge. He reads the verdict and then directs the clerk to read the verdict to the parties. You can watch this on TV a hundred times without emotion, but watching a real jury render a decision is about as high drama as you can find.

As a juror you are not expected to leave your experiences and knowledge on the courthouse steps. You are asked to speak, think and act for the community. This is a big responsibility, but I can’t think of a better way to experience real democracy at a meaningful level.

Bankruptcy is a legal process where people who cannot pay their bills can seek protection from their creditors. When someone files a bankruptcy petition all collection efforts by creditors must immediately cease, and the debtor is allowed time to either reorganize his financial obligations under a plan or liquidate his assets and pay his creditors from the proceeds of the liquidation.
The process is fairly complicated but essentially the debtor must file a petition in the Federal Court asking the court to stop collection proceedings while the Bankruptcy Trustee figures out what can be done to wind up the debtor’s pending financial obligations. The creditors are notified that a petition has been filed and that if they want to get any of the proceeds they must file a claim in the bankruptcy proceeding seeking a share of what is left of the debtor’s assets.

Individuals can file either one of two types of petitions including a Chapter 7 liquidation or a Chapter 13 adjustment of debts. The petition is just a very detailed summary of the assets and liabilities of the debtor. The debtor must be able to show his financial history for the six months prior to filing the petition. Transactions and payments occurring within about two months of the petition are presumed to be preferential transfers and may be voided by the Trustee. If there is a fight in one of these cases it is usually because one of the creditors thinks that the debtor is hiding assets. You can’t go put ten thousand dollars on your Visa card and then run to the bankruptcy court to seek discharge of Visa’s debt. Timing and the circumstances are very important to this determination, but generally credit card debt is almost always dischargeable.

In a liquidation, the debtor’s non-exempt property is sold and the creditors share in the proceeds. In an adjustment of debts proceeding the debtor develops a plan to pay all or some of his debts and the plan must be approved by the Court.

In 2005 Congress passed the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005. There were significant changes in this law including a means testing requirement. The debtor’s income is considered and the amount determines whether the debtor can seek a liquidation or, if he makes too much money, he must adjust his debts under a plan to pay his creditors over time. One large misconception people have is about how medial bills are treated in a bankruptcy. Medical bills are just like any other bill and they can be fully discharged in a bankruptcy. In 2007, 60% of bankruptcies filed were not caused by high living, but rather they were caused by staggering medical bills.

There are ways for a debtor to reaffirm on some debts on assets he wants to keep. For example if the debtor owns a car but owes the bank money on the car he can, with the creditor’s consent, keep the car and remain obligated to continue making the payments.
If you have questions about this process you should call a lawyer who handles bankruptcies. Remember, unpaid bills are not like fine wine because they do not get better with age.

Let’s start by defining what Habeas Corpus is. Habeas Corpus is an age-old procedure whereby a person being restrained by the government can ask a court to evaluate the lawfulness of the confinement. The term “habeas corpus” is a Latin term that literally means “deliver the body.” If after considering the government evidence and arguments the court determines that the confinement is unlawful, it has the power to order that the person be immediately released.

The concept of creating a barrier to arbitrary arrest dates back to the Magna Carta in 1215. The framers of the American Constitution thought the right so important that it was included in our Constitution. The United States Constitution Article 1 Section 9 expressly provides: “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” In October of this year President Bush signed the Military Commissions Act of 2006 which gives the President or Secretary of Defense acting though military commissions the power to deny people suspected of terrorist acts the right to use the Geneva Convention to challenge their confinement. Supporters of this new law argue that it does not apply to American Citizens, and therefore it is a necessary and lawful procedure to protect the country. Critics argue that some of the language in the Act is not restricted to aliens, and that it therefore allows American citizens to be denied the right of Habeas Corpus.

The Act was passed in response to Hamdan v. Rumsfeld, a recent United States Supreme Court decision which held that the military did not have authority to try the detainees held in Guantanamo by using military commissions. The Court decided that the Uniform Code of Military Justice and the Geneva Conventions did not permit such trials.

Suspension of this right has occurred before. Probably the most famous instance was when President Lincoln suspended the right of Habeas Corpus during the civil war. Shortly after the attack on Fort Sumpter dozens of prominent secessionists in Maryland were arrested and the President suspended their right to file habeas petitions to challenge their arrests and confinement. They filed the case in a Federal District Court in Maryland and Chief Justice Roger Taney ruled that Congress, not the President, had the authority to suspend the right. President Lincoln ignored the Court’s order and thousands of people were arrested and held without charges during the war. According to Presidential Historian Geoffrey Perret in his book “Lincoln’s War,” President Lincoln delegated the authority to Secretary of State William Seward to decide who was to be arrested and held. Apparently, Secretary Seward enjoyed this power and it was said that he boasted to Lord Lyons, the British Ambassador, “I have a little bell on my desk. I need only to touch that bell and any citizen from New York to Ohio may be arrested and held for as long as I wish. Can the Queen of England do as much my lord?”

Terrorism has made us all a little paranoid, and justifiably so, but I can’t help thinking that the ends do not justify the means on this issue. The presumption of innocence and right to confront and cross examine witnesses against us in a fair hearing are rights the United States Constitution refers to as the “blessing[s] of liberty. Too many people have died defending these blessings for us to be scared out of them by some fanatical murderous coward like Osama bin Laden.

Let me begin with some basic information. The Small Claims Court is contained within the Natrona County Circuit Court system and is located on the 4th Floor of the new Townsend Justice Center. If you want to sue someone in small claims court you must go to the Circuit Court Clerk’s office and tell them you want to file a suit in small claims court. They have preprinted documents that you must correctly fill out, you must pay a small fee, and they will then have the sheriff take your complaint and serve it on the person you are suing informing them of the nature of the claim and notifying them of the time and place of trial.

There are a number of frequent mistakes that people make when they file these claims and I am only going to point out a few of the biggest ones because there just isn’t room to talk about all the things you can do wrong in one of these cases.

Before the small claims court has jurisdiction in a case, you must make a demand on the proper party and have payment refused. You should do this in writing. You can write a letter to the proper party and demand a specific amount of money and give them a reasonable time to pay it. Make sure you only ask for what you can prove is owed. Once you demand $1,000 you don’t get to show up and ask for $1,500. Send two copies of the letter to the person, and keep a copy for the trial. Send a copy to the defendant by certified mail so that you will get a return receipt showing that they received it. You send the other by regular mail in case the person decides not to pick up the certified letter. When you go to court to file the suit you must sign an affidavit which indicates that you made the claim and payment was refused. This documentation will help prove this.

You must decide on the proper party to sue. If your suit is based upon a breach of contract, make sure you have a copy of the contract. This will usually identify the entity you must sue. If your agreement is with a corporation you must sue the corporation, not one of the guys who works there. Make sure you bring any proof you have of what happened. Photographs of the damage, or a copy of the agreement is very important evidence you must show the judge.

You must be able to prove your damages. If your car was destroyed by faulty wiring work done by the defendant, you must be able to prove what a car of the same make and model is worth.
If the defendant shows up with an attorney, you are entitled to get a continuance to allow you to go hire your own lawyer. Our Circuit Court Judges usually make the people with lawyers go last. This process is designed primarily for people to resolve disputes between themselves, and the use of lawyers is discouraged. They love to see attorneys sitting there waiting to go last. Who says Circuit Court Judges don’t have a sense of humor?

Collecting on your judgment is another matter. They say you can’t squeeze blood out of a turnip, and if the defendant can’t pay and has no assets to seize you may still never recover a dime even if you win.
The bottom line is that if you want to be your own lawyer you can, but believe me, it’s not as easy as it looks.

First, you should know who you are hiring. You should always make a thorough evaluation of potential employees so that any problems in their past do not come back to haunt you. Check the references and more importantly the driving record. Even if the potential employee is the best employee in the world, if he has two prior drunk driving convictions you better not hire him. If he gets into a wreck in a company truck after drinking you could be exposed to punitive damages for trusting him with a vehicle.

Second, always communicate safe practices to your employees. Most employers have policy hand-books which describe safe operational practices, but some don’t aggressively follow them. Having a safety policy that no one follows makes it more likely you will be held liable for the injuries your employees cause. You should always be able to demonstrate that your company teaches the policies to the employees and then strictly enforces them. You should have a clear zero tolerance for drug and alcohol violations. If you have employees who are drinking or taking illegal drugs, you cannot have them on the payroll if you are serious about safety.

Third, make sure you get out of the office and see what is going on. If you have employees on a job site, show up unannounced to see how they are operating. If you notice a potential problem make sure everyone knows how you want them to behave. If you have a supervisor who cuts corners on safety you had better get him to follow the policy or get rid of him. The other employees on the job will be quick to say that the company permitted safety violations to make the job go quicker. Witnesses in these cases rarely work for the company by the time a lawsuit gets filed. This kind of testimony can be deadly at trial.

Fourth, take some time to think about your operation. You might hire a safety consultant to review your company operations to identify potential safety risks. One of the most frequent problems employers have is with injuries caused by an employee’s use of a company vehicle. Make sure your employees are good drivers.

Fifth, make the time to review your operation with your attorney and insurance agent. Ask them to review your operation for problems or areas where you may be exposed to unnecessary liability.
Finally, make sure that safety at your company is not just a slogan but a way of life. You must be proactive in protecting your company and you should always be looking for ways to make your operation safer.

Warranty is a legal doctrine which makes a seller guarantee that the goods he is selling will perform as represented. A warranty may be expressly included in a contract or implied as a matter of law. You have all seen language related to warranty if you have ever purchased something from a store. Usually the store will have you sign something at the time of purchase. I bought a television from a local store a couple of months ago. I told the sales agent I would like this one particular model of TV. He then prepared a document listing the particulars of the TV and at the bottom of the document there was a place for my signature. This was a preprinted purchase agreement drafted by his company. What he failed to mention was that on the back of the sales order there were a number of terms of the sale that he neither told me about nor that were mentioned as we negotiated the deal. Things like if the TV did not work I had only 7 days to return it. It also said that if the TV didn’t work I could not get my money back, just another TV, but again only if I brought it back with the box within the 7 day period. This document also said that there were no express or implied warranties by the store, and that I was aware of and agreed to this term. That was untrue, but I did sign the document. I didn’t use the TV for a month, and when I did plug it in it did not work. When I notified the store they said tuff luck, as the 7 day period had passed. There was still a manufacturer warranty and so I had to deal directly with the television manufacturer to get the set fixed, but it just reminded me that it is important to read the flip side of any document you sign as part of any commercial transaction.

When you buy something make sure you look at both sides of any document you are signing. You must understand that you are signing a contract when you sign a document like this. Also understand that you are agreeing to whatever is written on the contract because the law will assume that you read the document before you signed it. If there is something on the document you did not agree to, you need to bring it up to the sales person before you sign the contract. I have seen all kinds of horrible things in sales contracts that buyers had no idea were part of the deal when they were signing the sales order. It may provide that you cannot sue the seller if the goods are defective. It may say that if you decide to sue the seller, you must do so in a far away state court rather than Wyoming. It may provide that the entire agreement between you and the seller is contained in the written sales agreement and nothing the salesperson says is binding on the company. It may expressly waive all implied warranties including the warranty of fitness for a particular purpose or warranty of merchantability. You don’t want to be reading the actual terms of your agreement for the first time when you discover that there is a problem with the junk (or old cowboy) you just bought.

Luckily for my old Cowboy client his wife had a change of heart and let him back in the house. I guess she figured that suing him for breach of warranty was a waste of time. She was right about that. Let the bride beware!

Let’s start with the basics. Possession of marijuana is a crime. First time possession of even a very small amount is a misdemeanor with a maximum penalty which includes a fine of up to one thousand dollars and/or a year in jail. Having possession of a pipe with measurable marijuana residue or just some seeds or stems is enough to trigger this penalty. If you get convicted, you will have to undergo a drug evaluation, and part of your sentence will include some type of treatment and random court ordered drug testing. Here in Natrona County a second offense almost always results in a jail sentence, and a third offense is a felony punishable by up to five years in the penitentiary and fine of up to five thousand dollars. There is also a doctrine in law called “constructive possession.” Our Supreme Court has indicated that you can be convicted of constructive possession of drugs even if they are not in your actual possession. If you are in a position of exercising dominion or control over the drug, and you know of its presence and the fact that it is an illegal drug, you may be found to be in possession. This means that if the drugs are sitting in the glove box of your buddy’s car and you get stopped you could have a problem.

A new federal study indicates that teenagers who use marijuana are much more likely to suffer from mental illness, including severe depression, thoughts of suicide and schizophrenia as they grow older.

If this isn’t enough of a reason to say no to marijuana, there is always the dreaded question 31. If you are thinking about going to college you must also be thinking about how to pay for it. Most colleges require that students submit the FAFSA form to obtain financial aid. FAFSA is the Free Application for Federal Student Aid. In order to obtain any government financial aid a FAFSA form must be completed. Question 31 on this form requires the student to disclose whether they have ever been convicted of selling or possessing illegal drugs. If you answer yes to this question on the FAFSA form you cannot receive federal financial aid unless you have been through an accepted federal drug treatment program. Federal financial aid can pay a large percentage of your college expenses and, unless you are financially set, it could keep you out of college. A college graduate earns approximately one million dollars more in a lifetime than a person without a college degree. Get the picture?

If you have a teenager that is smoking a little pot once in a while and thinks that it’s no big deal you might want to talk to them about how quickly this thinking can screw up their future. I am not talking about heroin or ecstasy here, just a little pot and some bad luck and your child can turn a perfectly bright future into a train wreck in no time at all. It really is just that simple, just say NO!

With identity theft all over the news most of us recognize most of these scams immediately. When some guy sends you an email or calls you on the phone and tells you that he is an African prince and needs your bank information to wire transfer millions of dollars to your bank account, he is lying. Unfortunately some of our elderly friends and neighbors are too trusting. They may even suspect a scam, but more and more people here in Wyoming are falling for this scam because they want to believe they won something that might help their families.

I have an elderly friend who was being systematically ripped off by some pirate in Nassau. My friend lives alone but he does have family around. He worked hard all his life and was comfortable financially. He got a telephone call from a pirate who claimed he had won 5 million dollars and a new car in some sweepstakes that he did not enter. All he needed to do was send a processing fee of $500 dollars and the five million would be wire transferred to his bank. The pirate was very persuasive and talked him into sending the money. He was sending the money to a post office box in Las Vegas. Then more calls started coming and each time with a different story about why another $500 or $1000 was necessary to get the 5 million released. My friend was too embarrassed to go to his family and this jerk kept calling him trying to get him to send more money. Sometimes he would call as many as 100 times a day. When my friend tried to say no, the calls started getting threatening. The pirate finally told my friend that he was in danger of physical injury if he did not send more money. When my friend finally called me he had been taken for over $8,000. We immediately changed his telephone number and called the police. When I called the number that appeared on the caller ID, I got to talk to this jerk. I told him the party was over. After I hung up he called back from Nassau in the Bahamas, not Las Vegas to see if I was who I said I was.

The sad part of this scam is that once they get a hook in someone they are relentless. A vulnerable adult does not want to admit that they have fallen for a scam like this and so they are reluctant to tell anyone about it until it is too late. The calls quickly get threatening and these poor victims become terrified that these pirates will actually show up in Wyoming and try to hurt them. They won’t because they are cowards. Because the calls are coming from outside the United States it is very hard to catch these weasels.
If you have an elderly family member or know a vulnerable adult please take the time to talk to warn them about this problem. Tell them that if they get a call like this from someone that they should never send any money or provide any personal information. If you are being harassed by one of these pirates now, don’t send any more money. There are a lot of things you can do to stop this. You shouldn’t be embarrassed because you trusted someone. Tell your family, and call the police. I would give you the number for the United States Navy but they have their hands full in Africa right now.

The short answer to this question is maybe. Kids are generally responsible for their own mistakes. This is true even if they are just kids. In order to fairly answer this question we have to talk a little bit about the nature of the misbehavior.

In Wyoming, we have a law that imposes liability on a parent for the “willful and deliberate destruction of property” by children over the age of 10 and under the age of 17. This law makes the parent liable for the actual damages the child causes not to exceed $2000 dollars. So you parents out there who have children who are running amok in the city, willfully destroying property, under Wyoming law you may have up to a $2,000 problem. Hiding your head in the sand won’t help you with this one. If you don’t know what your kids are up to at night, you better find out.

A more common situation is where the child negligently causes damage. For example, if your 16 year old child negligently causes an automobile accident. If the child is not acting willfully or deliberately to cause property damage, then you may not be liable. Like all other cases, the devil is in the details. If your child sneaks off with your car without your knowledge and permission and while taking a joy ride slams into someone else, you would not be liable (you may also not be insured if this happens, but that is a whole different can of worms). If the child has had 3 speeding tickets and a drunk driving conviction, and you let him use the car after you watched him drink 3 beers the result may be dramatically different. The operative fact here is whether the parent contributed in some way to the ultimate damage the kid causes. Wyoming has rejected the “family purpose doctrine” which imposes liability on a parent based solely on the relationship. Our Supreme Court requires “something more” than just the parent/child relationship to impose liability. The question becomes whether the parent knew of the child’s proclivity or propensity for the specific dangerous activity which caused the harm. Parents are not expected to keep a constant and unremitting watch over their children, but they can’t turn a blind eye toward them either.

Parents may also be subject to criminal prosecution in some instances. If the parent becomes an accessory to a crime by knowingly aiding or abets the child in the commission of a felony, or where the parent counsels, encourages, hires, commands or procures a felony to be committed, the parent can be found guilty of the same crime the child commits. A parent may also be prosecuted as a co-conspirator in a crime committed by a child, if the crime is committed pursuant to some type of agreement with the parent.

It seems to me that these are all very good reasons to keep track of your kids. If your children are out wandering around in the middle of the night without a real good reason, make them come home. Hillary Clinton says that it “takes a village to raise a child.” She is right, but it takes a lot of good parents to make a good village.

Article I Section 8 of the U.S. Constitution gives the federal government the power to “suppress insurrections”. This constitutional grant of authority was later followed by The Insurrection Act of 1807 which allows the Federal Army to take over state law enforcement functions if either one of two possible conditions exist. First, the President can order federal troops into a state where the state legislature or governor ask the President for help. If the state does not ask for help the President still has the power to act without being asked, but he must only do so where federal civil rights are being denied to a class of people or the law is not being enforced by the local authorities.

An important limit on Federal power to enter a state came in response to fighting over the federal government’s role in the Reconstruction of the south after the civil war. The Posse Comitatus Act of 1878, prohibits the use of the military to aid civil authorities in enforcing the law or suppressing civil disturbances except in cases and under circumstances expressly authorized by the Constitution or Act of Congress. Posse Comitatus literally means the “power of the county”, and this law essentially prohibits the Federal army from becoming members of a local posse to enforce state law. This law was passed in part because the perception was that the army was being used for political purposes during reconstruction. The southern democrats who were in control of the southern states wanted the federal government to get out of local politics, and this law was passed to place additional restrictions on the Insurrection Act. Since that time a variety of new laws have been passed blurring the line between the army and law enforcement. The war on drugs is an example where the coast guard is used in conjunction with local law enforcement to stop illegal drugs from coming into the country.

Using the army to enforce law and order in the states is a touchy subject, and nowhere was this more evident than in the south. Louisiana had lots of federal intervention after the Civil War, but they were finally withdrawn in 1877 signaling the end of Reconstruction. Both Presidents Eisenhower and Kennedy sent federal troops into the south without invitation to force integration. These military actions were not greeted with enthusiasm from the Governors of the Southern States involved, and a lot of the people in the south are still angry about it. The civil war may have ended at Appomattox, but southern hostility and mistrust toward the federal government marches on.

I doubt that anyone would deny that hurricane Katrina produced a fair amount of insurrection in New Orleans. President Bush could have immediately ordered federal troops to Louisiana under the Insurrection Act without an invitation, but if he had done so it would probably have been perceived by the local authorities as heavy handed. Reports are that the President decided instead to wait for an invitation from Louisiana Governor Kathleen Blanco. An invitation that she refused to make presumably based upon her reluctance as a southern governor to admit that she had lost control of her state.

We should expect to see the debate over when and how the federal government should get involved in disasters like this playing out over the next several months. This analysis has already been characterized in the national media as the “blame game.” Whoever takes the blame, it seems clear that our homeland is still not very secure. About all we know for sure is that our citizens in Louisiana were dying while this horrific turf battle took place between the local, state and federal governments over who was actually in charge. I think we should figure this out as a nation before it happens again.

If a police officer suspects that a person has violated or is violating the law they can lawfully conduct a traffic stop. When the police see a car doing something unusual they will often make contact with the driver to see whether they are ok to drive. What usually happens is that the officer makes contact with the driver and asks whether he has had anything to drink. As soon as the driver admits that he has the obligatory “two beers” the Roadside Olympics begin. They are actually called field sobriety maneuvers. I have watched a number of videos of arrests lately and I can tell you that these tests are pretty hard to do sober. In fact, I would bet that unless you are a member of Cirque Du Soleil you will probably not do all that well on these tests.

They usually start by making you say the ABCs, but they won’t let you sing or rhyme them. Most people learned the ABCs by singing them and that is the way they remember them. When you are standing on the side of the road with the wind blowing and a police officer shining a flashlight in your eyes your memory can play tricks on you. If you get confused, you lose. The next test is to count backwards from 68 to 52. This can be difficult if you are thinking about how mad your wife is going to be if you get a DWUI while you are trying to do it. If you get confused, you lose. Next is the horizontal gaze nystagmus test where the officer has you follow a pen light with your eye as he moves the light horizontally to force your eyes out to the far end of your ability to look from side to side without moving your head. If your eyeball begins jumping up and down as you get near 45 degrees from center you lose. The next test is really a hard thing to do. It is called the walk and turn test and requires the driver to walk along an imaginary straight line touching his heel to his toe for nine steps out and nine steps back. Setting aside the difficulty of walking along an imaginary line, walking with your heels to your toes is pretty hard to do. If you stop at 8 or go to 10 steps, you lose. If your imaginary line is not that straight, you lose. This test gets harder to do the older you are. Try and imagine old Nana out on 2nd Street at night trying to walk heel to toe. She can barely make it to the kitchen, but she drives to the grocery store every Saturday. I would bet that there are few people at the senior center who couldn’t do this test well on a good day. The final test is the one leg stand. You must stand with your hands at your side and lift one foot 6 inches off the ground and count to 30. I was in a yoga class a couple of weeks ago and there were 10 students, none of which could stand on one leg for 30 seconds with the other leg up in the air. The teacher could do it, but she had been practicing. It is unbelievably hard to do if you have been sitting on a bar stool for two hours before you try it.

The truth is that these tests are designed to be hard, and unless you are an acrobat you will likely get to spend the night in the crossbar motel. A minor traffic violation and smelling like alcohol is enough for a police officer to run you through the tests. If it goes that far, you are probably toast. I am not trying to preach here, but using a designated driver is the only safe way to spend a night out on the town. If there is any chance you are going to be driving, don’t drink. It’s that simple.

Most DWUI stops in Natrona County are videotaped, so if you get stopped, remember to smile. It may be the last time you have anything to smile about for a while.

Most lawsuits have an emotional component, but divorce and child custody cases seem to be the most turbocharged in terms of strong emotion. In divorce cases it can be very ugly when one party wants out and the other party does not. Love can turn to hate in a very short time, and the people who do not want the divorce can feel very rejected. Intense anger can make people feel like doing very hateful things. Child custody cases are sometimes even more intense. If you are involved in a proceeding that could result in severe restrictions being placed on your ability to see your own children you can imagine that people might do just about anything to win.

You can imagine that when the lawyers are preparing a case for trial they spend a good deal of time listening to and working with their clients. The clients usually are focused on pointing out any potential flaw that could be used to prevail at trial. The danger here is that the lawyers do not get to hear much about the other side of a case until the trial. The only picture they have of the other side is what they hear from their clients. It is common to show up at trial believing that the other side is a complete monster. It is easy to pick up some of the client’s strong emotion in the case and this can translate into a need for the client and the lawyer to try to put some blood in the snow.

It has been my experience that blood in the snow is very rarely a productive result. You can take a contested child custody case, and by using information provided by your own client, you can polarize the other side in such a way that they will never be able to work together to continue raising the children in the middle. If you decide to do a panzer attack on some poor witness who does not want to be there anyway the whole thing can blow up in your face. You can also guarantee that the other side will appeal the case if they lose. This can add thousands of dollars to the cost of the case and add several years to getting the case finished. It also plays into the stereotype that a lot of people have of lawyers being jerks.

Over the years I have had the honor of facing a number of very good lawyers in court. I can say unequivocally that the best most effective lawyers I have seen are always polite and professional when they interact with the other side of the case. They don’t lose their temper and they don’t get sarcastic. They stick to the facts of the case and don’t go out of their way to make any witness uncomfortable unnecessarily. They can ask very tough questions, but if you are good enough you can do it in a very respectful way.

There are situations where lawyers must be tough on a witness. In criminal cases for example, some witnesses can have a dog in the fight. If a witness has changed his testimony to save his own skin, lawyers must sometimes get aggressive to expose a hidden agenda. Sometimes the witnesses can be jerks as well. There is no clear line which a lawyer can use when deciding how aggressive to be with a witness, but if you guess wrong, a jury can get mad at the lawyer and find against his client.

If you want a bulldog, go to metro. They have lots of bulldogs ready to be adopted. If you want a good lawyer pick one with kind eyes.

Mediation is a process where the parties to a dispute can use a neutral third party to get a case settled. Either party can request mediation and when one is requested, the court will order the parties to participate. The process begins by the court selecting a mediator. In most cases judges from different judicial districts in the state are used, but the parties can select their own mediator if they can find someone agreeable to both sides. There are a number of good lawyers around the state who are specialize in mediation, and most have special training in conflict resolution. After the mediator is selected a date is set to conduct the mediation. Both parties submit a confidential summary of their case including both the strengths and weakness of the case to the mediator. The mediation statement also addresses an estimate of the value of the case from each side. The mediation statements are submitted to the mediator a week or so before the mediation so that the mediator can do any research that might be necessary to get an idea about any special legal issues and the value of the case. The mediation is generally conducted in a law office where both sides sit across a table from each other with the mediator in the middle. Each side gives an opening presentation and then the parties are separated. The mediator then discusses the case with each side individually and works to get each side to compromise. Mediation is non-binding, and if it does not get the case settled, the case can proceed to trial. All settlement negotiations are confidential and a jury is never told that the case went to mediation.

Frankly, most cases we have are settled in or shortly after a mediation. Mediation can be a very informative process and a good mediator can introduce reality into the situation. Litigation is very expensive and very risky. Settling a case is a way to limit the potential for a bad result at trial. Mediation can be a very useful tool, but both sides must be ready to compromise to conduct a successful mediation. The process can be abused, and it is vital that the decision makers on both sides attend the mediation.

Another form of alternative dispute resolution is arbitration. This is a more formal process and is conducted more like a trial. Generally, each side picks a mediator and the two arbitrators then select a third arbitrator. The process is just like a mini trial where the parties give opening and closing statements, and important witnesses are called and cross-examined. The arbitrators listen to the evidence, and then issue a decision. The decision is binding between the parties. Arbitrations are authorized by contract, and many contracts people sign have arbitration provisions. Courts generally favor arbitration agreements and unless there is some overreaching by the party seeking arbitration, the courts usually find that these agreements are fully enforceable.

The cost and time requirements necessary to resolve a dispute in court are forcing litigants to seek some type of alternative dispute resolution. This is not necessarily a bad thing. Most cases should be settled, and settled in a way that the process does not cost more than the case is worth. If you are involved in litigation I would strongly suggest that you consider one of these methods to resolve your case. You will get your questions answered in court; you just might not like the answer.

If you die with a will, your property will be distributed according to your wishes as expressed in the will. The probate procedure is used to determine the validity of the will. A will is a written legal declaration of how a person wishes to have their possessions distributed after death. Notice that I said written. For a will to be valid among other things, it must be in writing, witnessed by two non-interested competent persons and signed by the person making the will. Tape-recorded statements are not valid. The will must also show that the person making the will understood that they were making a will and that it was their intention to dispose of all their property upon their death.

One major exception to this rule is a holographic will. This is a will entirely in the handwriting and signed by the person making the will. Even with no witnesses, these wills can be valid, if they are done correctly.
If you don’t leave a will when you die, your property is distributed pursuant to the Wyoming Intestate Succession statute. Intestate just means that you did not leave a will. This statute directs how your property is distributed if you did not express your wishes in a valid will. Who gets what depends upon who is alive at the time of your death. Spouses, children, and children of deceased children are the first class of people who take property under the statute, and it progresses out to include, parents, brothers and sisters, grandparents, aunts, uncles and their descendents. The term “children” includes adopted children, and they are entitled to their share as if they were blood children.

The next major issue is the property subject to probate. There is a reasonably complicated process for determining which property is included in the estate. For example: If you had a life insurance policy naming your oldest son as the beneficiary, this policy would pay him directly and would not be part of your estate. How the property is titled whether car, house, retirement account, etc., determines whether it must be part of the estate.

The probate of a will, or the administration of an intestate estate is a statutory process. Essentially all of the decedent’s estate is gathered up, and valued. The real estate is sold, and the property not specifically given to someone is sold for cash. All of the decedent’s bills are paid and then the proceeds are distributed under the terms of the will or the intestate succession statute. Careful court scrutiny is applied in either case to insure that any potentially interested person receives the correct share of the estate.

Wyoming has a procedure where smaller estates can be distributed by affidavit where the net value of the estate is $150,000 or below. This is a much simpler process and is much quicker.
The closing an estate can be a very emotional and complicated process, and a competent probate attorney is strongly recommended. In fact, a good estate planning attorney should help you through this process before you die to insure your wishes are respected. The only way to avoid the hassle of closing your estate is not to die. That is my plan.

You all remember the Patriot Act. It was the law passed by Congress in response to the terrorist attacks of September 11. One of the more obscure aspects of this law was that it requires banks to report certain unusual financial transactions including odd patterns of cash transactions and wire transfers. Banks were required to install sophisticated computer software which would scour the banks transactions looking for unusual activity. The banks started ranking their customers based upon risk levels which were determined by considering such things as the customers credit rating, assets, profession and most troubling, the customers political activity. The rationale for this was that politicians were more likely to be targets of corruption by outside governments.

When something pops up as unusual, the bank reports the activity to law enforcement via a “SAR” or Suspicious Activity Report. The problem is that the SARs are readily available to law enforcement and are frequently used by prosecutors to look for potential leads in garden-variety domestic white-collar crime investigations. These investigations have nothing whatever to do with Osama bin Laden, or terrorism per se, but rather are investigations of American citizens.

Apparently, Mr. Spitzer was using his ATM to obtain large amounts of cash and was sending money to the call girl operation from his accounts using someone else’s name. This activity was reported to the authorities with a SAR, and an investigation began. Initially it was reported that the government thought he was being blackmailed, but as the investigation intensified, his extracurricular activities were exposed, as was the fact that he was not engaging in terrorism. It seems to me that if the reason we gave the government this extraordinary power was to catch terrorists, then as soon as they found out that Mr. Spitzer’s case had nothing to do with terrorism, they should have dropped it.

One might fairly wonder how much information the government has obtained about any of us using these tools. How much of our activities are truly private, and how much is being maintained in a file somewhere for later use. I don’t want to sound paranoid, but I have always believed that as an American citizen I was entitled to be free from unreasonable searches and seizures. I believed that there was a right to privacy implied in the Constitution and that the government did not have the right to rifle through my private business without probable cause or my knowledge and consent.

I would argue that those who would use the Patriot Act for domestic surveillance of American citizens are violating the United States Constitution. This law simply goes too far. Once it becomes clear that national security is not implicated, the use of information gathered by virtue of the Patriot Act should be prohibited.
Does George Orwell still matter? I would bet that he does, but betting is illegal and I sure don’t want my bank to be forced to tell the feds that my account suggests that I might be gambling.

The day after my friend’s funeral her family gathered to begin the process of tending to the estate. The ethereal quality of this meeting was stunning. Her family lives in another state, and although they had some idea what needed to be done they basically had to start from scratch in figuring out the nature and extent of her property. No one really knew where to start. Did she have life insurance? Where did she do her banking? Did she have any debt? What did she do with her diamond ring? Did she want to be cremated or buried? Imagine the scene if you were to die today. Would your family be in any better position in trying to figure out how to handle your estate? Would they know where your retirement accounts were located? Would they know who to call, or what to do? Imagine that a number of your family and close friends are sitting around the kitchen table at your house the day after your funeral. There are 10 large cardboard boxes which are full to the brim with old bank statements and brokerage accounts, some of which were from accounts that don’t even exist anymore. Do you think your family might find this process unnecessarily stressful?

Wills are important, and everyone with any property should have one. Yet, a Will usually will only tell you where the property goes, they usually don’t tell you where the property actually is. One of the things that I did after attending the family meeting was to sit down and make a record of what I had and where it was. I call this document a survivors road map. I listed the names of the insurance companies and brokerage companies where I have accounts, the name of my insurance agents, the account numbers and the estimated values in the accounts. I put all of the car titles together, and I have a file for the house and the other real property we own. If I drop dead now, at least my survivors would know what property I owned, and most of the major questions that come in during this process have been answered. No one needs to stress out about what to do.

The purpose of this document is not to file it with the court. It is merely a guide so that the people who must settle your affairs won’t be chasing their tails and wondering whether they have located all of your property. If my friend’s mother had a list of her daughter’s property with account numbers and values, she would not have been subject to the uncertainty of whether she knew about all the property and where it was.

In a lot of families one person usually takes care of the money. The other person is generally responsible for knowing how to operate the snow blower. This division of responsibility works if the snow blower operator dies, but snow blower operators can really struggle with the possible issues surrounding a 401k owned by a deceased spouse. Sure, they will figure it out in time, but why make it harder? Don’t you think your dying is stressful enough without setting up the process to play out like a scavenger hunt?

Several weeks before our friend died, she celebrated her 43 birthday. I remember writing in her birthday card that at the rate she was going, at least she was not going to die young. I sure would have stayed at the party longer had I known how wrong I was about to be.

First, when you buy a house directly from the seller without professional help chances are good that the deal will go bad. There are lots of things that can complicate a deal, and they don’t get better with age. It can be very helpful to have someone looking for the problems you didn’t even know might exist.

If you are working with a real estate sales person you should find out who they represent in the deal. In most deals the realtor is a seller’s agent or intermediary. This means that they are not working for you and are not looking out for your interests. This is a little strange as you spend a lot of time with the salesperson when you are looking at houses. After a while you can develop a trusting relationship with them. This may be the way you feel, but the documents you sign where this is disclosed will control if there is a problem. When you are asked to sign something, just ask “who are you representing in this deal?” You should never rely totally on the realtor in any event. Most real estate professionals are good and competent at what they do, but they don’t get paid until the deal closes. This can create a conflict of interest that might jeopardize your best interest.

When you find a house you like, you will be asked to sign a purchase offer. This document sets forth the terms of your offer. If the seller accepts your offer you will have a binding contract. Among many other things the purchase offer sets the price, deadlines for the completion of inspections and sets the closing date. If you agree to complete the inspections by a certain date, make sure they are completed by that date. If there is a problem with the property inspection make sure you notify the seller consistent with the deadlines you agreed to follow in the contract. If you don’t object to the problems your inspection discovers, you may wind up waiving the problems and can be forced to buy the property as is.

The seller will provide a property disclosure statement where they must disclose problems with the house. Read this disclosure carefully for what the seller says, and also look for what they don’t say. If something is left blank in the disclosure ask about it, and ask that the answer be provided in writing. If the seller does disclose a problem like a history of water in the basement, make sure you have an engineer take a look at it. The seller usually provides title insurance. Title insurance will disclose whether the seller has good title and whether there are liens of record on the property which could interfere with your getting good title at the closing. Before the closing the title company will provide a title commitment. This document will show you what the title company discovered about the property by researching the title. This is a very important document, and you should obtain, read and fully understand every document that has been listed as an exception in the commitment.

Most people must borrow money to buy a house. When you do, you will be asked to sign a note and mortgage. These documents comprise your agreement with the lender. These documents can be very complicated and have terms that you never dreamed were part of the deal. Read this document carefully as well.

At the closing, the seller will sign the deed. This is the instrument that transfers ownership to you. Make sure you read this to see if there are conditions in the deed language that you did not expect.

I don’t want to sound untrusting, but over the years I have tried a number of cases involving real estate deals that went bad. I remain an optimist, but I always cut the cards.

Many people use the phone book yellow pages to find a lawyer. The problem with this process is that there are a lot of lawyers listed and it is difficult to judge the capability of a lawyer by reading an ad in the phone book. Referrals from friends or neighbors are also common ways to get the name of a good lawyer, but it depends on the nature of your case. If someone recommends a specific lawyer to you, you should talk to them and briefly describe your case. You should be prepared to tell the lawyer about anyone that might be involved in the case so that any conflict of interest can be disclosed before you get into the details. It is not bad form to ask them if they have experience in the type of case you have.

Some people have a family lawyer, and this is an excellent resource because they will be familiar with other lawyers in the area. If you case is outside the area of practice of your family lawyer, then they can point you to a lawyer that practices the kind of law you need. Frankly, most of our clients are referrals from other lawyers.

There are two well-known peer reviewed attorney rating services that can be used to select a lawyer. These ratings are published online and you can get a pretty good idea if the lawyer you are considering is considered to be competent and ethical by the other members of the bar. These ratings are based upon confidential surveys of other lawyers and judges in the state, and the ratings are based on experience.
The first is Martindale Hubble. You can look up the lawyer you are considering and obtain his Martindale Hubble rating. Martindale Hubble rates lawyers on ability and ethical standards. The lawyer’s legal ability ratings start with a “C” rating which means that the lawyer is considered to be “Good to High”. This rating is frequently used for younger lawyers. If the lawyer has a “B” rating they are considered to be “high to very high.” An “A” rating is the highest rating you can get and is considered “Very High to Preeminent.” If the lawyer also has a “V” rating, this would mean that the lawyer is considered to be highly ethical, diligent and the other lawyers in the area believe that the lawyer meets the ethical standards required of a competent lawyer. You can look up your lawyer at martindale.com which is the web site for Martindale Hubble law directory.

A second rating service includes only those lawyers who are nominated for membership in “Best Lawyers in America.’ Admission to the Best Lawyers in America is based upon a rigorous peer-review survey comprising more than 2 million of the top attorneys in the country. A lawyer must be nominated for inclusion by other lawyers whose practice the same specialty. You can see if the lawyer you are considering hiring is listed in “Best Lawyers in America” by going to BestLawyers.com and searching for the area of law and location. The Wyoming Bar does not certify anyone as a specialist or expert, and it is important to do your own investigation into the capability of any lawyer you are considering.

Finally, and most importantly, you should sit down face to face with the lawyer you are considering. Ask them how many cases they have handled which are similar to the case you have. If you have a specific problem you can tell pretty quick if the lawyer you are talking to knows what they are talking about. If the lawyer you are considering is not capable of inspiring your confidence in that first meeting, then they are probably not the right lawyer for you.

Simply put, to prove a medical malpractice case you must prove that two things happened. First, you must prove that the doctor made a mistake that no other reasonable doctor would make. Second, you must prove that the doctor’s mistake caused an injury. Let’s look at each element individually.

The first element requires an analysis of what a reasonable physician should do in any given situation. There is a generally accepted way for a physician to go about diagnosing and treating a medical problem. This is called the standard of care. If the physician makes a mistake and does not treat the patient in a way that other reasonably competent physicians would treat the patient he violates the standard of care. The problem with this element comes from the fact that reasonable physicians may not only disagree as to what they believe the applicable standard of care to be, but they also can disagree on whether the physician’s conduct violated the applicable standard of care. Proof of this element requires expert testimony, and is disputed in nearly every case.

Even if we assume a mistake was made, there must also be proof that the mistake caused injury. This is commonly called the element of causation. If, for example, a physician fails to properly diagnose a condition that a reasonable physician should have found, he may still not be responsible for a bad result unless his mistake caused the bad result. This element can be complicated by the fact that when we go to see a physician we are generally sick already. The physician did not make us sick. So if we were likely going to suffer the problems associated with our sickness anyway, a physician’s mistake may not have changed our outcome at all. If that is the case, then there is no actionable malpractice.

Sometimes people get sick and die under the best care in the world. It is not fair to demand a perfect result when we go to our physicians. All we can expect, and all the law will require, is that the physician provides reasonable care. If on the other hand we go to a physician and he makes a serious mistake which results in injury, his insurance company should step up and provide fair compensation.

I am happy to report that my friends and I were able to agree on this proposition. My only suggestion for the current debate between doctors, lawyers and insurance companies is that we drop the adversarial attitude and approach this very serious problem facing our state like old friends getting together to do the right thing.