Can you recover monies for flood damage?

Most of the folks who suffered flood damage recently - for example in Lyons, Longmont and nearby towns here in Colorado - did not have flood insurance.  Mainly this is because they don't live in recognized "flood zones." Those people are in the (further) unenviable position of having to seek government assistance or make good their own losses.

Some standard home owner's insurance policies provide limited funds ($10,000 is typical) for backed up drains and resulting damage.  Water seeping into basements generally is not covered.  Of course whether there is any insurance coverage, how much, and the details, requires a reading of applicable insurance policies.   A phone call to the agent should be made ASAP too.

We litigated a case out of Lyons not that long ago where a neighbor had altered the drainage on his property, resulting in a massive amount of water/flood damage to our clients' house following a particularly heavy August rain storm.  The jury agreed with us and awarded substantial monies to cover our clients' losses. 

The bottom line is that, absent insurance or government assistance, unless you can show that someone else negligently or knowingly caused water to move onto your property and damage it, little relief is available.

Will the dam burst on doping cases?

The U.S. Postal Service is suing Lance Armstrong, claiming it was hurt by its highly touted sponsorship of his Tour de France cycling team while he secretly was doping (which apparently he admitted on TV?).  No doubt the USPS will be asking for its support money back, and then some.  Lance and his team are fighting hard to get the case dropped.

The case is really interesting because it is based in large part on claims of fraud.  As this blog has discussed in the past, a civil fraud claim provides a powerful remedy (and deterrence) because it can reach back years to the fraud and allow for the recovery of pretty much any and all kinds of resulting money damages - economic loss, noneconomic loss (like pain and suffering if appropriate), punitive damages, attorneys fees, case costs etc.  Most importantly, it could result in a civil judgment collectible from Mr. Armstrong himself (and any other person or entity proven at least partly to blame).

You can bet other professional high-priced athletes (and their lawyers) are watching this case.  Arguably anyone who has been defrauded by athletes who cheat could bring such a lawsuit.

Can new evidence help an old case?

Throughout the summer Colorado media outlets have been reporting problems with the state's criminal evidence testing lab at the Department of Health (formally known as the Colorado Department of Public Health and Environment, or CDPHE).  The CDPHE for example tests blood samples taken in connection with DUI cases.  Based on an independent investigation report, it seems the lab boss was biased for the prosecution, that lab techs were inadequately trained, and that required lab protocols were not being followed, among a host of other problems.  In short, the lab tests could not (and some say still cannot) be trusted.

What about all the DUI cases that went down before this new information about the lab came to light?  Many people accused of that and other crimes went to trial and were convicted based on faulty supposedly scientific evidence against them.

Fortunately the state's rules of criminal procedure (i.e. the rules that help guide when and how the government can proceed against your life, liberty and property) provide a remedy.  Rule 33 (similar to the federal Rule 33) allows a defendant to ask the court for a new trial based on newly discovered evidence.  Of course there are certain restrictions - like the evidence really has to be new, be of significance to the issues, the defendant has to show he tried to get helpful evidence sooner, and the request must be accompanied by an affidavit (explaining for example why the evidence is new).  The request should be granted if it is in the "interests of justice" to do so.

There is no time limit for seeking a new trial using this rule, other than that it should be done soon once the evidence (its nature, scope, significance etc.) comes to light.  A similar process may be available for cases that pled, that is, where the defendant took a deal (based on bad evidence?) instead of going to trial (by far, most defendants plead their cases).

So pass it along, and if you or someone you know needs help, give us a call.

Goal-oriented decision making threatens our legal system.

The law is always changing.  Usually change is good and to be expected.  Much of our law is made in the way individual cases are decided by appellate judges and applied by trial judges.  Those decisions become the basis upon which subsequent cases are decided.  In my over 25 years reading case decisions, I've seen a change in how those decisions are made, and it isn't good.

Historically - for the hundreds of years we've been using the English common law system - judges adhering to time-tested legal principles would apply them to the facts and arrive at a decision.  That seems to be changing.  Too many cases are being decided backwards.  More and more judges seemingly arrive at a decision first, and then look for supporting principles to justify the decision.  This new goal-oriented decision making process is a matter of expedience - politically safe but not legally sound, a crowd-pleaser but dangerously short-sighted.  Because so much is based on precedence (i.e. previously decided cases), any weakness in the foundation threatens the whole legal system.

The continuing assault on the Bill of Rights' 4th Amendment is one of the more striking examples.  Goaded on by the devastating War on Drugs, too many judges (politically driven, or with social agendas, or merely concerned about not rocking the boat) have twisted the plain language of that historic privacy-based provision to gut its protections.  Other examples are in family law with its emphasis on (perceived) wealth shifting at any cost, in criminal law with its emphasis on facilitating convictions for marginal behavior and watering down criminal intent requirements, in personal injury law curbing the procedural rights of one side or the other, in civil rights law empowering corporations over individuals (or vice versa depending on your perspective).  A more general example, especially at the trial court level, is the increasingly lax and selective application (if at all) of long-standing rules of evidence (which determine what facts and arguments can be considered).

Too many written (and binding) appellate decisions these days begin with pages of lip service to the time tested legal principles the rest of the decision trashes in the writer's haste to reach the goal.  True justice becomes fleeting, unpredictable, inconsistent, random - in a word, an accident.

True justice is blind; it doesn't look to see what the outcome should be - based for example on who is involved, what is at stake, or someone's political agenda or social goals.  Take the blindfold off Lady Liberty and justice stands to become dangerously subjective.  Let legal decisions follow the careful application of sound principles and experienced reasoning and they will stand the test of time.

Trials and Appeals.

     Trials and appeals are where rubber meets road in the legal profession.  Although most cases settle or plea bargain before either (and sometimes during), the mere prospect of trial and appeal leads to such resolution.  That is because most people and businesses are risk averse, and avoid the uncertainty of leaving decisions and outcomes in the hands of trial judges, jurors, and appellate judges.  Also, litigating matters through trial and appeal is time-consuming and expensive for everyone involved.

     The outcome of most any trial can be appealed at least once.  The rate of reversal or similar is about 25% in state cases, and just over 10% in federal cases.  Fewer cases end up at the highest appellate courts, like the U.S. Supreme court at the federal level for example.  Mainly this is because those appeals are discretionary, meaning the appellate judges themselves decide whether to accept the appeal.  The likelihood of this is less than 10% (although once accepted, the reversal etc. rate approaches 50%).

     Many appellate decisions - the written opinion disposing of the matter usually authored by one appellate judge on behalf of a panel of three or more - are published and become precedent for future cases.  Transactional lawyers, regulatory lawyers and other non-litigators typically do not try or appeal cases, but they are guided by those precedents.

     Though risky business, trials and appeals are crucial to the effective and ultimately efficient operation of the entire legal system.

Put it in writing.

As one of my former bosses used to say, If it ain't in writing, it ain't.  Many times I've been asked about the need to put understandings or agreements with partners, fellow shareholders, employees, customers etc. into writing.  While for the most part verbal agreements have the same legal force and effect as written ones, they are much tougher to prove and therefore, to enforce.

Put it in writing.  Fancy legal terms are not required (but may certainly help).  Ask yourself, What is it we are agreeing to, and in the simplest, clearest language put it into a confirming letter, memorandum signed by the parties, even an email is better than nothing.  In my view, email has been a boon to the extent it compels people to organize their thoughts, be concise and informative, and put things in written form that can be saved, reviewed later, etc.

Depending on what's at stake, and to be on the safest side, ask an experienced lawyer to review the writing before you send it.  Ask if you can email it to him/her in draft form.  An ounce of prevention is worth a pound of cure.  As time goes by, memories fade, disagreements arise, you'll be glad you took a few moments to "put it in writing."

Ongoing Lance Armstrong Lawsuit Could Be Trouble for Cheating Athletes Everywhere

Today's newspapers report a Texas judge has refused Armstrong's request to dismiss an insurance company's lawsuit seeking the return of bonus money it paid him from 1999 to 2001.  Depositions (questioning the cyclist under oath) and other information gathering discovery are sure to follow.  As I've written before on this blog, fraud-based civil lawsuits against doping athletes and their enablers seeking return of monies paid would be a huge deterrent against such cheating.  Look for more cases soon, including against some equally high-profile players.