Many older powers of attorney should be reviewed

Many power of attorney and health care proxy documents that were created years ago should be revised now as a result of a federal medical privacy law.

The law, known as HIPAA, generally prevents health care providers from disclosing your personal medical information to anyone but you and someone you’ve named as your “personal representative.”

Medical privacy is a good thing – but the law can create complications. For instance, you may have a health care proxy that names someone you want to make medical decisions for you if you’re not able to make them yourself. But if you haven’t also named that person as your “personal representative” under HIPAA, then he or she might not be able to access your medical information in order to make informed decisions.

Also, many power of attorney documents say that your agent can act on your behalf if you become incapacitated. But if your agent isn’t also your personal representative under HIPAA, then even if you do become incapacitated, your agent might not be able to access your medical records in order to prove it – and as a result, the power of attorney might be of little value.

To make sure your agent doesn’t get caught in this “Catch-22,” your power of attorney and health care proxy documents should contain HIPAA clauses saying that the agent is also your personal representative.

In some cases, it might also be a good idea to sign separate HIPAA release forms.

Here’s another issue: When people are admitted to a hospital, the hospital often asks them to fill out a generic health care proxy form. A lot of people dutifully fill out this form as part of the hospital paperwork. But if you do so, it could revoke the more carefully considered form you created as part of your estate plan. You’ll want to be careful to make sure that the form you create as part of your estate plan is the most current form and the one on which the hospital will rely.

Another state limits credit checks on job applicants

California has become the latest state to limit employers’ ability to run credit checks on job applicants.

Under a new law, employers are prohibited from conducting these checks except for managerial and law-enforcement positions, jobs requiring regular access to confidential information or more than $10,000 in cash, and jobs requiring the employee to make financial transactions on the employer’s behalf.

Similar laws have now been enacted in Connecticut, Hawaii, Illinois, Maryland, Oregon, and Washington, and have been proposed in about 10 other states.

In addition, the federal Equal Employment Opportunity Commission recently issued a warning that credit checks could be illegal if they lead to the disproportionate exclusion of women, minorities or other protected groups.

Many employers run credit checks on candidates for jobs that involve financial responsibility, but some run checks on all candidates, believing that employees with good credit are more likely to be reliable, responsible and honest.

According to the Society for Human Resources Management, some 60% of businesses now run credit checks on at least some job applicants, up from 42% five years ago. About 13% of employers run credit checks for every job.


Companies can’t discriminate when ordering medical exams

Companies can require their employees to undergo medical examinations in certain situations as a condition of employment. But as a recent case from Maryland’s highest court shows, they can’t do so in a discriminatory manner.

In that case, an employer had required a female truck driver to have a medical exam for a condition involving heavy menstrual bleeding. She filed a complaint with local civil rights commission. When the employer heard about the complaint, it fired her. She sued for sex discrimination and retaliation.

According to the employee, the exam requirement amounted to sex discrimination because several male employees with serious health problems, including diabetes, Parkinson’s Disease and severe dizziness, were not required to undergo medical tests.

The court agreed, upholding a substantial jury verdict for the employee.


Businesses might have to help disabled workers commute

The Americans with Disabilities Act requires employers to reasonably accommodate disabled employees at work…but a new court decision says that they might also have to help disabled employees with their commute.

Barbara Nixon-Tinkelman, who worked for a city agency in New York, was hearing-impaired and suffered from cancer, heart problems and asthma. When her employer reassigned her to spend nine months working in Manhattan rather than a more convenient location in Queens, she asked for help with her more difficult commute.

A federal judge sided with the agency, say it didn’t have to accommodate the woman because commuting was “outside the scope of her job.”

But on appeal, a higher court sided with Nixon-Tinkelman. It said the agency had a legal obligation to consider a number of possible accommodations, including transferring her back to a more convenient location, letting her work from home, or providing her with a car or parking permit so she didn’t have to use public transportation.


What You Need to Know about Your Deposition in Your Auto Accident Case?

Today I would like to talk with you about depositions, which are a very well known and common part of litigation today and I would like to talk to you about three aspects of depositions.  First, we will discuss what is a deposition, where does it fit within the framework of your lawsuit, the other discovery going on in the case.  Next, we will look at what are the mechanics of the deposition and what you can expect to be occurring in the deposition room during the deposition. Lastly, we will talk about how to comport yourself as a witness, some do’s and don’ts about deposition etiquette, some suggestions as to how to best approach responding to questions, and we will close by looking at the big picture, trying to tie it together so that your experience both at the deposition, then through the rest of your case including ultimately either negotiations or trial. The goal is for your case to run smoothly.

First, what is a deposition?  It is a “discovery” procedure conducted as a result of the Rules of Civil Procedure the court has adopted to flesh out all the facts of a given case. A deposition is a court hearing, but it takes place outside of a courthouse.  It is almost always conducted in either a lawyer’s office or a court reporter’s office. The depositions are scheduled largely for the convenience of you as a witness and of the lawyers.  The location can be changed from the offices of the attorney scheduling the deposition to a location closer to you, depending upon certain circumstances, and the deposition can proceed as the Notice of Deposition says, from day to day, although usually in a personal injury case, they are half a day or slightly more, and occasionally with complex matters, it might take a full day. Employment cases could, depending upon the circumstances, be longer or shorter.

There will be a court reporter present who will swear you in to tell the truth, the whole truth and nothing but the truth, just like on television or to otherwise affirm to telling the truth, depending upon certain religious and philosophical predilections of people.

The attorney for your opponent will be there.  If you are a plaintiff, a person bringing the lawsuit, the attorney taking your deposition most likely will be the attorney representing one of the defendants that you have sued. All of the parties to that case will be represented by lawyers. Usually the parties themselves will not be there, although each party has a right to be there.  Your attorney will be there.  I am always sitting next to my client at a client’s deposition. There may be other assistants or associates to one of the law firms present in the room also.

Normally the accommodations are comfortable, but you should be aware that you have the right to be comfortable if you need to take a break to clear your head or to use the facilities or have a glass of water. Simply indicate that you would like to take a break and the lawyers will accommodate you.  Usually, you will have to answer any pending question first, but then a break can go forward.

A deposition proceeds with the lawyers taking testimony much like you are in court.  The court reporter, after swearing you in, will take down everything that is said by you and anyone in the room while we are “on the record” and the lawyer who scheduled the deposition normally is the one who starts asking the questions.  Questions are received one at a time with your answers and occasional objections or comments by others in the room that we will talk about in a few minutes.  Documents or other items such as photographs may be marked as exhibits and this proceeds pretty much like it is in court except for the fact that there is no judge present, no courtroom, no court officer, and no jurors.  The testimony can be used at some point during the rest of the case.

The next question we will face, our second question, is where does a deposition fit into the spectrum of discovery in your case.  Discovery starts very typically with written questions which are answered in writing and written requests that a party produces certain documents and tangible objects.  Interrogatory answers which are signed under the pains and penalties of perjury by a client are normally prepared with substantial, if not nearly, exclusive attorney input.  They are very good for cataloguing facts or items.  They are very good for describing matters which a person perhaps would not remember off the top of their head.  Some research and effort has to go into answering interrogatories.  In a medical case, a case involving and accident with injury or a personal injury or bodily injury case, a typical interrogatory asks for a clamant to itemize medical bills. Obviously a witness at a deposition could not be expected to remember that type of information, but the effort is made to as fully and completely as is realistically possible provide that information in an answer to an interrogatory. Interrogatory answers also have limitations.

Requests for production of documents obviously embraces requests to see medical records, photographs, employment and income records and things of that sort. Sharing this information I intended by the court to put both or all parties to a case in a position where they all can fully appreciate the strengths and weaknesses of the case from all perspectives and settlement theoretically becomes more likely. Discovery also is intended to make the trial of a case run more smoothly. The days of “trial by ambush” have been closed by the liberal discovery rules of most courts.

A lawyer cannot effectively follow up on an interrogatory answer the way he can at a deposition by asking further questions.  Depositions are live and the lawyer has the opportunity to ask you questions and then follow up to his or her heart’s delight on the other factors around that issue.  For example, someone may ask you what the color of the light you were facing was when you first saw it.  Your answer, if you were asked in an interrogatory, that it was green, might be accurate and clear, but it might also obfuscate other facts that are simply not able to be asked.  For example, what was the color of the light as you approached it from 100 feet away or 300 feet away and what did you do when you first saw it at each of those locations.  At a deposition, a lawyer can request that you draw a diagram of that intersection and then have you place your thoughts about where you were when you first saw that traffic light to be green on the diagram, and that obviously cannot be easily accomplished in another fashion.

At a deposition a lawyer has an opportunity to size a witness up.  If a witness is easily aggravated or angered or quick to anger, that lawyer will make a note of that.  If the witness makes a good appearance and is likely to make a good witness in their own behalf, the lawyer will make a note of that.  That goes into calculate the lawyer’s view of what that case is worth and what should happen.  A plaintiff who is genuine and sympathetic and credible has a better case than one with opposite characteristics. Similarly, if the lawyer’s observations are negative, that will impact his or her views of what that case is worth and what a jury might do with it.

Depositions are also extremely important because once you have said something clearly and unequivocally at a deposition, courts will not permit you to change or vary your testimony.  And that testimony provides effective cross-examination fodder to impeach your credibility with a prior inconsistent statement. What you say should be the product of good, solid preparation rather than something off the top of your head.  Many lawyers just permit a witness to go to a deposition with deposition preparation which is limited to telling the witness to tell the truth. Perhaps they believe that they have properly prepared a witness, but at Flynn Law Firm we know that you are entitled to know what the deposition is likely to cover in terms of substantive issues and what to expect in terms of conduct at the deposition so that you are fully prepared.  It ultimately does you a disservice to not have you prepared and comfortable and ready to expect questioning on certain issues. To be properly prepare you should have gone over the case and investigation materials with your lawyer, discussed the purpose and practices of a deposition, and how it is likely to be important in your case, and you should enjoy the opportunity to have your lawyer in effect depose you by asking you questions which are likely to mimic what you will be asked at the deposition.

In terms of preparation at our office, we go over the file, discuss the issues, go over the pertinent documents and this is all activity that you as a client and me as your lawyer have done together a number of times, from our first initial client conference to each of our update client conferences to our interrogatory answer preparation.  If there are photographs, you should have seen them.  If there are photographs, you should see them and we should discuss them.  You lawyer wants to know what you are going to be talking about at your deposition just as if we were in court.  You really have a right to know what the issues are, what negligence is or carelessness, what causation is and what is involved in damages all is part of properly preparing yourself for your deposition.  Shame on the lawyer who does not give you that kind of attention prior to your deposition!

This leads us to our next and last issue, how should you comport yourself at your deposition and what preparation are you entitled to receive.  At your deposition, how should you act?  Well, first of all, you should answer each question that is asked and answer it based on your own knowledge.  I used to tell people tell the truth, tell the whole truth and nothing but the truth, and while that is absolutely true that that is what you should do, the surer way to achieve that goal is to answer the question directly and based upon your own knowledge.  If you know it, it is true, and things fall along into place properly and naturally with that approach to a deposition or to trial testimony.

As I mentioned, answer the question directly when it is asked. Do not argue or try to out-lawyer the lawyer. That is a battle even the cleverest witness will lose and there is no point to trying to do anything other than answer the questions as asked. Do not try to figure out where the lawyer is going with his questioning. The key to you having a successful deposition is simply to answer the question that is asked based upon your own knowledge and to do so in a positive fashion.  By that, I mean, every witness that I bring to court, whether the witness is a plaintiff or a defendant or an expert, is there to be what I consider, a friend of the court.  By that I mean you want the judge and the jurors and even the other lawyers to know that the matter whether you are a plaintiff of a defendant or an expert, you are there to give the best information you can give in response to the questions of the lawyers and you are not there as an advocate for a cause, you are there to tell the truth and just the truth.  And a witness who is cooperative and friendly and who is not defensive and does not argue with the other lawyer or worry about where the lawyer is going with his questioning goes a long way towards successfully demonstrating to the courtroom that he or she is a friend of the court.

Also, in that same vein, you are entitled to a clear question.  If you do not understand a question then politely ask to have it rephrased.  Sometimes lawyers ask convoluted questions or questions that imply things that are understood by the lawyer but not by anyone else in the room.  You are entitled to a clear question so that you can provide a clear response, and actually the lawyer, even if he asks the question improperly or poorly, is entitled to the same thing.  He is entitled to ask a good question to get a good answer.  Do not guess or speculate; base everything on what you know to be true.

Wait until the question is completely asked.  Occasionally, your lawyer will want to object to a question and to make a statement or engage in a colloquy before a question is answered.  Do not cut the other lawyer off; do not cut the questioner off, wait for that question to be completed.  The court reporter can only take down one voice at a time, and that is how the records in cases get messed up when people are talking over each other.

In conclusion, a deposition in a case is very important.  It is your day to put your best foot forward.  You are not trying to persuade the other lawyers of anything in particular, but you are letting them know what your case is to the extent they want to ask questions about it.  Their goal is to flesh out what your case is and what you know as a fact.  Their goal in that regard is to narrow what you can say at the trial to what they learn at the deposition.  You may occasionally hear your lawyer object to a question.  Ignore my objections.  Your job is to answer the question that is asked, but pause after the question so I have an opportunity to interject an objection while the other lawyer has had an opportunity to actually fully ask you the question.  Lawyers are not supposed to send messages to their client through verbal objections when they say a lot.  Do not let any objection or comment by your lawyer send a message.  Your job is to answer every question unless your lawyer suggests on the record otherwise.  If you follow these tips and have a broad understanding of what discovery is and a deposition is and if you are well prepared by your attorney, your case and your deposition should go pretty positively.




Workers may have a right to gripe about jobs on Facebook

A lot of companies assume it’s okay to fire or discipline employees who complain about their jobs on Facebook or other social media sites. But in some cases, disciplining an employee for a Facebook rant could violate federal labor law, and the employee might be able to file a complaint with the National Labor Relations Board…even if he or she doesn’t belong to a union.

In the past year, more than 100 complaints have been brought before the NLRB over “Facebook firings.” In about half the cases it reviewed, the NLRB issued a civil complaint.

In one of the first cases, a paramedic was fired after she called her supervisor a “scumbag” and a “17” (code for a psychiatric patient) on Facebook. The ambulance company ended up settling the complaint with the government.

Federal law makes it illegal for companies to discipline workers for “protected concerted activity.” That means that workers have a right to discuss their conditions of employment with each other, try to speak on behalf of other workers about workplace conditions, and attempt to improve things for other workers.

If a Facebook rant falls into any of those categories, it may be protected.

For instance, the paramedic was unhappy about being reprimanded earlier for a customer complaint, and made the “scumbag” comment during an online discussion with other employees. The NLRB decided that discussing a supervisor’s actions with co-workers was “protected activity.”

As a general rule, as long as workers are commenting on workplace issues with each other or hoping to improve work conditions generally, they can even call supervisors names or bad-mouth the company in certain ways – although they can’t make verbal or physical threats.

On the other hand, if workers are just griping to their friends outside of work about sometime that only affects them personally, and they aren’t trying to improve general conditions or speak for other employees, they aren’t protected.

For example, a BMW salesman in Chicago was fired after he made two sarcastic posts on Facebook. One mocked his employer for serving hot dogs and bottled water at a sales event for luxury cars. Another showered a picture of a customer’s 13-year-old son driving an SUV into a pond.

The result? A judge found that the hot-dog post was protected (because other employees were also complaining online about the sales event). But the salesman could be fired for the pond photo because it had nothing to do with his working conditions.

Employee hurt in car crash collects from employer’s auto insurer

If you’re injured in an auto accident, there’s a chance that the person who caused the accident won’t have enough insurance to cover your injuries. Your own insurance policy might provide “underinsured motorist” (UIM) benefits to help you out in these situations.

UIM insurance provides for some or all of the difference between the amount of your injuries and the amount that’s covered by someone else’s insurance policy.

And if you drive as part of your job, your employer’s auto insurance policy might also provide for UIM benefits to cover injuries you suffer as a result of a work-related car accident.

An interesting case arose in Pennsylvania, when a police officer was severely hurt in a car crash while on duty. The person who caused the accident had only $25,000 in coverage. The officer’s injuries were far more serious, so he sought UIM benefits from the police department’s insurer.

But the insurance company denied the benefits…because the department’s insurance policy said it wouldn’t cover any accidents if the injured employee was also eligible for workers’ compensation (which the offer was).

Does that seem fair to you?

It sure didn’t seem fair to the officer, and he took that case all the way to the Pennsylvania Supreme Court, which sided with him and ordered the insurance company to pay the benefits anyway.

The insurance policy was basically a trick, the court ruled. Virtually any employee who was injured on the job would be eligible for workers’ comp, it noted. So while the policy said it would provide UIM coverage to injured workers, in fact any time a worker was injured, the insurance company could simply deny coverage because of the workers’ comp rule.

That meant that the police department was paying a premium for UIM coverage but not getting anything in return, which was unfair, the court said. Since the department had paid a premium for UIM coverage, the insurance company had to provide it and couldn’t hide behind the workers’ comp exclusion.

Bus company held accountable for not having seatbelts

Passengers who were injured when a bus slid off an embankment and rolled over several times could hold the bus company liable for not installing seatbelts, New York’s highest court recently decided.

The court upheld a jury’s verdict ordering the company to pay damages to the passengers because it was careless and didn’t do enough to protect them.

The bus company argued that federal regulations require seatbelts only for bus drivers…not passengers. Therefore, it said, it didn’t have a legal obligation to provide belts for passengers.

But the court noted that the federal regulations didn’t prohibit seatbelts for passengers. The bus company could certainly have installed seatbelts without violating the federal rules, it said.

Therefore, the company could be held liable if it didn’t fulfill its legal responsibility to provide for the passengers’ safety…which is what the jury decided happened here.

Injury Victims often must act quickly to get compensation

Many people who are injured don’t talk to a lawyer right away about obtaining compensation. Sometimes they’re not sure how badly they’re hurt, or what the long-term consequences of their injury will be. Sometimes they believe (mistakenly) that they can’t be recompensated for their medical bills, lost wages or pain and suffering. Sometimes they’re just scared of the legal system, or so busy dealing with the injury itself that they put off pursuing their rights.

But that’s a problem, because the law often gives people only a short time in which to act. People who wait to talk to a lawyer risk not being able to receive the compensation to which they’re entitled.

If you or someone you know has been injured, it’s always best to speak with a lawyer right away…even if you’re not sure how serious the injury is, or whether someone else was at fault.

Lawsuits are subject to a “statute of limitations” – a period of time in which a suit must be filed, after which you lose all your rights.

Time limits for lawsuits exist so that people don’t have to worry about being sued over things that happened in the distant past, after evidence has disappeared and witnesses have moved away or forgotten the details.

But the problem for injury victims is that in most cases, the time limit for them is very short – often only a few years. The limit is usually much shorter for injury cases than it is for lawsuits over a broken contract or a real estate deal gone bad.

Keep in mind that a lawsuit has to be filed within the brief window – which means not only that an injury victim has to talk with a lawyer, but that the lawyer has to investigate the case, interview witnesses, research the factual and legal issues, determine everyone who may be legally at fault, etc., before the suit can be filed.

Certain types of injury lawsuits have even shorter deadlines. This is often the case with lawsuits for medical malpractice, lawsuits for libel or slander, lawsuits against a local government – such as for a slip-and-fall on city property, or an accident resulting from poor road maintenance – or a lawsuit for job discrimination.

On the other hand, the time limit for injuries to children often doesn’t begin to run until the child turns 18 or 21. So if you know of a young person who was injured as a child, you might want to speak with a lawyer even if the accident occurred many years ago.

Usually, the time limit for filing a lawsuit begins to run at the time the injury occurs. It’s usually obvious when that is, but not always, which is another good reason to speak with an attorney as soon as possible.

For instance, a doctor in Oklahoma claimed she developed multiple sclerosis as a result of problems with a series of Hepatitis-B vaccinations. In her particular case, the statute of limitations was three years. But a court determined that the three-year clock started ticking as soon as the doctor had her first “medically recognized symptom” of the disease. Because the doctor waited until the disease had progressed before she looked into seeking compensation, she missed the deadline and wasn’t able to recover anything for her harm.

On the other hand, sometimes people are allowed to sue even though an injury occurred a long time ago. There is often a rule that says the time limit doesn’t start running until an injury victim knows who is responsible for the harm, or at least until the victim should have been able to figure out who was responsible.

For instance, a woman in Illinois had shoulder surgery in 2001, and afterward she suffered severe pain and loss of motion. At first she thought it was her surgeon’s fault. It wasn’t until 2008 that experts determined the problem was caused by a defect in a pain pump that was installed in her shoulder during the surgery.

The woman then sued the manufacturer of the pump. Although the suit was brought many years after the injury, a court said it was okay because the woman couldn’t have reasonably determined who was responsible for the harm until seven years after she was injured.

Slip-and-fall Victim sues over ‘unknown’ liquid on floor

A contractor who slipped and injured himself while working on-site at a jewelry store could hold the store accountable for his injuries even if the store didn’t know that there was a slippery substance on the floor, the California Court of Appeal recently decided.

The contractor claimed he slipped on jewelry cleaning solution that someone else had spilled on the floor of the employee break room.

In California and many states, the general rule is that a store isn’t responsible for something slippery spilled on a floor unless the store knew about the problem – or had readon to know- and didn’t do anything about it. So, for instance, if a customer spills juice on the floor of a grocery store, and 15 seconds later another customer slips on it, the sotre probably won’t be responsible because it couldn’t reasonably be expected to have discovered the problem and fixed it in that time.

In this case, the jewelry store claimed it had no knowledge of the spilled cleaning liquid.

But the court said that this case was different because the spill was in the employee break room. That meant that a store employee, not a customer, was responsible for the spill.

And while a store isn’t responsible for problems caused by customers unless it knows about them, a store is responsible for the careless acts of its employees whether the management knows about them or not, the court said.