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I’ve contacted a lawyer about a potential case, and they seemed interested in hearing what I have to say, can the lawyer start representing me immediately? This is a common question that many potential clients have for attorneys – what is the first step and when will that be done? As attorneys, we are dedicated to helping our clients achieve the best result possible in the most efficient manner possible. However, we also must balance this interest with the Rules of Professional Conduct. In other words, we must first determine that no such conflict would exist in our representation of the potential client. For firms that have hundreds of attorneys, the conflict check is extremely important as the larger the firm is, the more clients that the firm can take on and subsequently, the greater potential that a conflict in representing someone may exist. There are several rules within the Rules of Professional Conduct that outline whether or not a conflict exists in the representation of a client, but two of the most important rules are as follows: Rule 1.7 Conflict of Interest: Current Client (a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if: (1) the representation of one client will be directly averse to another client; or (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer. Rule 1.9 Duties to Former Clients (a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing. As you can tell from these rules, there are exceptions to which attorneys can overcome these types of conflicts; however, it is imperative that these conflict checks are done to ensure that no prohibited representation of an individual takes place. How does one do a conflict check you may ask? To answer simply – there is no one set way for a conflict check to occur. Rather, how this is done generally will depend on the attorney – is he or she a sole practitioner? Is the attorney part of smaller firm? Does the attorney work for a national firm with hundreds of attorneys?  Regardless of how the check is done the most important information to have when doing a conflict check is the potential client’s name and background information – any spouses? Workplace information? Past civil actions, etc., as well as any information the potential client may have regarding the opposing party. Moreover, something as simple as ensuring that the spelling of the names of the potential clients, their spouses, as well as the opposing parties is key to ensuring that a conflict check is correct. In the case of sole practitioners, they may be able to rely on memory or a quick review of their files or computer database to determine whether a conflict exists in the representation of a potential client. For larger firms, the attorneys may need to rely on conflicts check technology which allows you to enter the prevalent information and then informs you whether or not a conflict exists. In sum, no matter how the conflict check takes place, the most important thing to remember is that it must take place at the outset so as to prevent any harm to the representation of the client or any negative repercussions to the attorney who has spoken to the potential client.

Ever testify in court? Whether be of your own freewill or as the result of a subpoena? I’ve not done it, but I can only imagine how intimidating and vulnerable one must feel to be on the witness stand. Putting criminal cases aside, as the witness looks directly at the offender adding additional fear as they face someone being accused of a crime that could result in prison, death penalty, whatever the case maybe; let’s talk about the civil action witness. In both types of law, the facts must be relayed in the simple truthful manner. If one tells the truth from the beginning, the facts should not be difficult to remember. Sounds easy enough, but let’s not forget about ones nerves and what that may do to the human being on the witness stand as the sole focal point in the courtroom. A step further, how does one testify as to the damages the family may experience due to the harms and loss of a loved one? If you ask me, that is extraordinary difficult in my mind. From my view, it seems that as frightening as it may be to be on the stand, the facts are what they are. You listen to the question and state the answer. But, how do you explain to a bunch of strangers what the loss of your parent or child or best friend has been? How to relay in minutes or hours to these jurors what a lifetime of loss of this person has been and the effects it has caused? Talk about feeling vulnerable and most likely needing a support person to see you through; we’ll that’s what I try to do. Families that come to Bordas & Bordas have been injured and sometimes, these injuries are catastrophic where a loved one has died because of injuries and harms. My philosophy to our clients, when it comes time to express to the jurors, that is, what this loss means to a family, they have to put a face to the name of this person who the jurors have heard about. We have a responsibility to that loved one to tell their story because they aren’t here to tell it and that is a difficult place for anyone to be in. What our clients know is they have the support of our team here at Bordas & Bordas. Our knowledgeable attorneys who are excellent in the courtroom also possess the genuine compassion for their clients. I’ve seen it with my own two eyes. That quality is invaluable to give a person as they are forced to relive some of the darkest moments they have ever experienced through the weight of a trial on their shoulders. I mean as if they haven’t already been through enough? Although I cannot put myself in someone’s shoes as a witness, given I have never done it, I certainly can be their support to grasp onto in their time of need. That is invaluable to me because I’ve grown to know them, their loved one, and I make it my goal that our clients never feel alone in a courtroom. Together, we strive to help bear the weight of that loss and pain, one that is so severe, it’s hard to put to words, but we see them through this pain as it’s relived amongst a group of strangers. We fight hard to find the justice that loved one and their family deserves and do everything we can to stop it from happening time and time again. Image courtesy of Unsplash.

Litigation pending before the West Virginia Supreme Court could raise important questions about potential liabilities owed by landowners who signed oil and gas leases. In Hanover v. LML Properties, et al a company providing contract mining services filed a lien against the owners of the coal and land at issue when it was not paid by the company that hired it. The trial court in Boone County, WV ruled that the lien was not enforceable, but the issue is now up on appeal. While Hanover relates to coal mining directly, it raises questions in the oil and gas environment as well. Imagine that you signed a lease agreement with ABC gas company. ABC gas company hires XYZ Drilling to drill the well that will obtain your gas. XYZ incurs millions of dollars of bills in doing so, but ABC refuses to pay. Should XYZ be able to file a lien against your property to protect its interest? That is one of the questions that the WVSCA could answer. West Virginia does generally allow an entity, such as a contractor, to file a lien against property if they have not been paid pursuant to an agreement to perform work and that work added value to the property. For example, say you hired someone to install a pool at your home, but did not pay. The person who installed the pool could file a mechanic’s lien at the court house. That mechanic's lien can then prevent you from selling your land or getting a loan for your land without first making sure that the contractor was paid. The mining company in the Hanover case has taken that principle and attempted to extend it to mineral mining/extraction. It seems that the trial judge in Boone County got the decision right. He reasoned that since the mining company had no direct contract or relationship with the mineral owner guaranteeing that it would be paid that a lien is an improper way to secure payment. Thus, the mining company could not cloud the title to a landowner’s property. This should be an issue that the West Virginia Supreme Court will get behind to protect individual West Virginians. For a more in-depth preview of the case you can visit https://bordaslaw.com/blog/wv-supreme-court and get information about that case and many others to be considered by the Court. You can also get opinion analysis as the Court issues its rulings. Image courtesy of Unsplash.

With the beginning of the new year, W-2 forms will soon be filling mailboxes. Upon review, some of you may ponder why you are not receiving overtime. Overtime laws are designed to prevent workers from being exploited by their employers. However, 40% of workers are exempt from overtime laws. Most states, including West Virginia, have closely based overtime laws on the Fair Labor Standards Act, which is administered by the U.S. Department of Labor. The FLSA qualifies certain types of workers for overtime pay for all hours worked over 40 in a single week. If your work involves manual labor (such as factory worker, trade worker, attendant, cashier, etc) you are typically entitled to overtime pay.  Certain categories of workers are offered specific protection under the FLSA, including first-responders, such as police, paramedics, and firefighters, along with practical nurses and paralegals, who have historically been exploited and endured long hours of work. Most executives, administrators, and other professionals do not have to be paid overtime under both federal and West Virginia law. External salespeople and certain types of: computer-related workers, seasonal workers, transportation workers, agricultural and farm workers, and live-in employees, such as housekeepers, are also exempted from overtime requirements. Independent contractors, who are not considered employees, are also exempt. A series of tests are employed to determine the overtime eligibility of an employee based on pay rate, working conditions, skill level, and other factors. Those who qualify must be paid 1.5 times their regular hourly rate (“time-and-a-half”) for every hour over 40 per work week (7 fixed days) they work. The FLSA does not require overtime pay for work on weekends or holidays, unless overtime hours occur on such days. If your employer has failed to pay you the proper overtime wages that you deserve, you may be eligible to receive back wages and other compensation. Furthermore, existing regulations prohibit employers from penalizing workers who file an overtime complaint. Some companies will go to great lengths to avoid paying their employees the overtime pay that they deserve. Companies may resort to classifying employees as independent contractors or improperly categorizing them executives in order to avoid overtime. If you find yourself in this situation or need help determining whether you have a right to overtime, you should contact a qualified attorney.

One of the main tasks that attorneys do on a daily basis is to give clients an update on where their case stands after a lawsuit has been filed. After filing a lawsuit and receiving an opposing party’s responsive pleading to the lawsuit, the parties will engage in the discovery phase of litigation. What is the discovery phase you may ask? Discovery is the process wherein each side attempts to gather and obtain more information regarding the facts surrounding the subject lawsuit. One way to gather this information is through “discovery requests.” These discovery requests often include three parts: (1) Interrogatories; (2) Requests for Production of Documents; and (3) Requests for Admission. Interrogatories are questions posed in a written document to the other party and are aimed at gathering information on certain topics that are relevant to the lawsuit at hand. Requests for Production of Documents are requests that require the other party to produce certain documents that your attorney believes may contain certain information that would be helpful or informative to the matter at hand. Lastly, Requests for Admission ask the other party to admit or deny certain facts. As you can tell, all of these three discovery mechanisms are aimed at gathering additional information surrounding the claims and defenses involved in the lawsuit. Another part of the discovery process which many find to be the most important mechanism to fact finding is the taking of depositions. A deposition is a legal proceeding wherein attorneys have the ability to question witnesses in regard to facts or circumstances surrounding the lawsuit that has been filed. During the deposition, the witness is under oath and a court reporter is there to transcribe everything that is said. Often times the deposition will be videoed as well. The purpose of the deposition is again to find out additional facts and information relating to the case so that the parties have all the pertinent information needed to evaluate the case and determine the next step in the process. Sometimes this next step will be to depose another individual with information whose name was brought up in discovery responses or a deposition. Other times, the taking of a deposition will lead to the necessity of serving more discovery requests directed towards specific topics or areas which the attorney believes needs to be further developed. In sum, there are many discovery mechanisms out there that can be used by your attorney to strengthen your case and progress your case to resolution – whether that be through settlement or trial. Therefore, when you hear from your attorney that your case is in the discovery phase – know that your attorney is working hard to move your case along and to obtain all the information necessary to successfully represent you. Image courtesy of Pixabay.

You have seen it before, sometimes a closer call than others: A tractor-trailer combination that had been stopped on highway shoulder attempts to pull back onto the highway from a stopped position or slow rate of speed. To complicate matters, sometimes these dangerous driving maneuvers are at nighttime when it is almost impossible to see, never mind react to such a dangerous driving action. Visibility of tractor-trailers merging from a highway shoulder, to the travel portion of a busy highway at nighttime is a huge national problem.  All large commercial motor vehicles are required to have red and white reflective tape and/or conspicuity sheeting to make them visible to oncoming traffic. All too often that tape becomes dirty and/or worn, making it less effective and in certain circumstances, not effective at all. Moreover, it loses effectiveness when viewed at an angle, such as when a truck is merging from the roadway’s shoulder and back onto the travel portion of the roadway. The million-dollar question is at what distance an operator of a motor vehicle recognizes such a hazard on a dark road and the time react to same. In most nighttime circumstances it is nearly impossible for a motorist traveling at the posted speed limit to perceive, react and avoid a poorly illuminated tractor-trailer combination that is merging slowly from a shoulder back onto the travel portion of the roadway. Many times, a driver is unable to avoid a tragic crash caused by the much larger merging commercial motor vehicle. With any vehicle that stops on a highway shoulder, it must eventually merge back onto the highway. It goes without saying that for commercial motor vehicles, because of their great size and weight, this is very dangerous situation. Close your eyes and think about how much time it would take a fully loaded tractor-trailer to accelerate and get up to highway speed, in comparison to your personal car! That is why truck drivers are typically trained not to use the shoulder unless it is a necessity. Is there a safe way for tractor trailer to merge back onto a busy highway? Is there a safe way for a tractor trailer to merge back onto a busy highway at nighttime? Some experts suggest that once a truck is ready to move from the shoulder back into the flow of traffic, a driver should deactivate his emergency hazard flashers, activate his left turn signal and begin to accelerate his truck up to highway speed while still completely positioned on the shoulder. Specifically, a truck driver should reach a speed close to that of traffic and watch for a safe space to merge back onto the travel lanes. A truck driver must always ensure that he can safely merge without causing an accident. Activating the left turn signal notifies approaching motorists on the travel portion of the roadway that the commercial vehicle has gone from a stopped condition, to a mobile condition and intends to merge back into traffic. The left turn signal should not be activated until the truck is ready to move — while the truck is immobile the emergency lights should always be on. What else can a truck driver do to be safe in these situations? We always look to the Commercial Driver’s License (CDL) Manual in the state in which the truck collision occurs, the state in which the truck driver is licensed and the state in which the company is based. CDL manuals instruct drivers on many useful topics to complete this driving maneuver as safely as possible: A driver needs to be aware of what is always going on around his vehicle, specifically, not keeping a proper lookout is a major cause of accidents; A driver needs to be aware of what is always going on down the sides of and the rear of his vehicle. A driver needs to understand what is happening behind and to the sides of his vehicle, and to regularly check his mirrors, and more often in special situations; A driver needs to check their mirror adjustment prior to the start of any trip and that can only be performed accurately when the trailer is straight. Doing this provides the driver with a reference point for judging the position of others using the roadway; A driver needs to constantly check their mirrors for vehicles on either side and/or behind their vehicle. In an emergency, a truck driver needs to understand whether he can make a quick lane change. A truck driver needs to also use their mirrors to spot overtaking vehicles, to know where other vehicles are in relation to the vehicle and to see if another vehicle may have moved into your blind spot; There are special situations that require a truck driver to check his mirrors more often, specifically lane changes, turns, merges, and tight maneuvers; Lane changes require a truck driver to check their mirrors to make sure no one is alongside their vehicle and/or about to pass; To check mirrors before changing lanes to make sure there is enough room to do so safely and without incident; To check mirrors again after signaling a lane change to ensure no vehicle have moved into a blind spot; To check mirrors right after they begin the lane change to double-check the path is clear; To check their mirrors right after they complete the lane change; To use mirrors whenever merging to ensure the gap in traffic is large enough to enter another lane safely; and To signal driving intentions so that other drivers can know what driving actions the much larger commercial vehicle will make. Commercial motor vehicle operators learn these basic principles when obtaining their commercial driver’s licenses. They are typically retrained in these principles by their employers and they must utilize them whenever operating a commercial motor vehicle. As you can image, an 80,000-pound tractor trailer does not take off with great speed from a standing/stopped position when entering the highway. Thus, a professional truck driver must utilize the principles they learned in obtaining their CDL and allow plenty of time and space to enter traffic lanes from the highway shoulder. Bordas & Bordas has handled many commercial trucking accidents where truck drivers decided to pull into a traffic lane when it was not safe to do so. Please call us to discuss if you or a loved one has been affected and/or harmed in such a circumstance. Image courtesy of Pixabay.

Do you ever wonder what your lawyer is doing when they are not working with you on your civil case, or even what they are doing on your case in between your communications with them? Here are some of the things that lawyers do on a regular basis in the context of a civil litigation practice. As you probably remember from your earliest days of contacting your attorney about your own case, lawyers take telephone calls from people who have had something happen to them and are wondering if they have a case. The situation could be anything from a car wreck, to a bad surgery outcome, to the death of a loved one after a stay in a nursing home, or a company harassing about a purported debt, or feeling like an oil or gas oil company is not acting according to the terms of a lease. Regardless of the circumstances, the lawyer will listen to the timeline and details of the situation, ask questions to get more information, and evaluation each situation individually to determine whether there are potential civil claims to investigate. These calls are an important first step in any case, and lawyers dedicate the necessary time to thoroughly evaluate claims through these calls and set up meetings. Meetings are also a consistent part of a lawyer’s daily and weekly schedule. Meetings with clients, new or current, and meetings with other attorneys within the firm to discuss cases and strategies are two of the most common meetings an attorney will have on a regular basis. Many lawyers are also involved in various community, charitable, and professional organizations, and will attend meetings of those groups as well. As cases are filed and progress through litigation, lawyers also attend inspections, depositions, hearings, and mediations. Inspections usually take place early on in a case, most commonly in cases involving an injury from an unsafe condition on a premises or a motor vehicle or trucking collision case. Depositions are a part of discovery, and will require your lawyer to either ask questions of the defendant, witnesses, experts, or others who may have information that could be important to your case, or will require your lawyer to listen to questions that are asked of you or the experts that you have hired to help support your case. Depositions can take up to an entire day, or even more, sometimes, and require preparation time on the part of the lawyer as well. Hearings take place before the court, and address various issues and disputes that arise between the parties in the case. Your lawyer will appear, along with lawyers who represent the other parties in the case, and each lawyer will generally have the chance to explain to the judge their position, and why the law and facts of the case support their request to the court. Many hearings during the course of litigation involve discovery disputes and what information each side is entitled to receive, but hearings can involve any number of legal topics and issues. Mediation is an event that usually occurs closer to the end of the discovery period, but before trial, and offers the parties the opportunity to get together with each other and have a neutral party, the mediator, help facilitate negotiations to try and resolve the case through settlement, rather than going to trial. Attorneys also spend a good bit of time reviewing correspondence, discovery materials and evidence that is produced, transcripts from depositions and hearings, reports from experts, and motions and briefs that are filed with the court. They also do research into legal and other issues that arise in their cases, and spend time writing motions and briefs that ask the court to direct certain events in the case in their client’s favor and explain why the law supports that request. Finally, your lawyer may be involved in a trial. Although many cases resolve through settlement, rather than at trial, lawyers must always be prepared for a case to go to trial. When a trial is approaching, this will be a very time consuming period for your lawyer, and they will likely spend many hours reviewing all of the documents, testimony, evidence, legal arguments and cases, and other materials in the case. They will practice their arguments and questioning, and will have discussions with other attorneys about the best way to approach difficult issues or challenge tough evidence. They will spend time preparing witnesses to give testimony and will work with their staff members to make sure that all visual evidence and documents are properly marked and ready to be shown at the trial. These are some of the major tasks that your attorney works on consistently, both in your cases and the others that they have, but many other things may arise in an attorney’s day as well. If you are ever curious about what your attorney has been doing to work on your case, you should ask them. It will give you an opportunity to learn more about your attorney, your case, and the process of civil litigation, and may give you a better understanding of what your lawyer may be doing if you ever call and are told they are unavailable at the moment. Images courtesy of Unsplash.

In addition to working on cases, most lawyers are involved in at least one organization outside of their role at a firm or company. These organizations often include professional, community and charitable organizations, and may also include groups with which the lawyer has a personal connection, such as churches or religious organizations, alumni groups from schools that they attended, or organizations that focus on a particular interest or hobby that the lawyer has. Some of the most common professional organizations in the legal profession are bar associations. There are bar associations on pretty much every level. The American Bar Association is one of the biggest national professional legal organizations. There are also state and local bar associations in every state, and for pretty much every county or regional area. Participation in the bar association can range from simply being a member and receiving information and mailings to serving as a leader within the group, and everything in between. Most bar associations offer a variety of events and activities, including continued legal education events or seminars where lawyers can learn more about a particular area or topic of practice from other lawyers with experience in that area, and social or networking events, where lawyers can meet other lawyers in that geographic area and develop professional or referral relationships. Bar associations can be a great opportunity for lawyers to learn more about topics or issues that specifically affect their own geographic area of practice. For example, the recent opioid epidemic in West Virginia and southern Ohio has been an important topic that many bar associations have chosen to address because of the multitude of legal issues that are involved with that crisis. Things like this help bring lawyers together for important causes within the profession and help make them aware of resources and other ways to better serve clients on these topics. Lawyers may also be involved in organizations that address their specific area of practice. Many civil litigation attorneys who represent plaintiffs and criminal defense lawyers are members of “Associations for Justice” or “Trial Lawyers Associations.” These organizations serve many of the same purposes as the bar association but are more geared toward the plaintiffs’ side of the case and the issues that affect plaintiffs and their lawyers. In addition to professional associations, many lawyers are involved in community and charitable organizations of all kinds. Bordas & Bordas attorneys serve as members on organizations such as the YMCA, Youth Services Systems, Wheeling Health Right, the Junior League, Catholic Charities, Ohio Valley Breast Cancer Awareness, Lions Club, West Virginia Children’s Advocacy Network, Marshall County Animal Rescue League, and many more! Participation in these organizations is an important way for lawyers to give back to their communities, build relationships with others from various professions and backgrounds, and learn more about their current and potential future clients. If you are ever curious about your lawyer’s participation in professional or other organizations, just ask them. Most lawyers take great pride in their involvement in these groups and would be happy to share their experiences working with them and the reasons that these groups and causes are near and dear to their heart. Image courtesy of Unsplash.

Abusive debt collection practices can take a terrible toll, emotionally and practically. Beyond the fear, stress and embarrassment, families can have their bank accounts frozen, making it impossible to pay for their most basic needs. Debt collectors frequently place incorrect information on people’s credit reports, impairing their ability to secure credit, housing and even employment on some occasions. Many of our clients have experienced harassing phone calls; demands for payments not truly owed; illegal threats of bogus consequences for failing to pay, up to and including imprisonment; or lawsuits to collect stale debts that are barred by the applicable statute of limitations. These abuses are disturbingly common. Consumer complaint data indicates the most common grievances are mistaken information and what the Consumer Financial Protection Bureau calls “aggressive communication tactics and threats.” Fortunately for West Virginians, strong state remedies exist. Significant penalties are provided, along with the right to recover your actual damages, including for your emotional distress, and your attorneys’ fees. Consider contacting us if you have been subjected to the practices described herein, including: (1) threats that non-payment will result in arrest or garnishing wages without informing the consumer that a judicial order is necessary for any garnishment; (2) the collection of old debt that may be passed the statute of limitations; (3) collection or threatened assessment of attorneys’ fees; (4) the communication with any employer of information relating to an employee's indebtedness; (5) the disclosure of information relating to a consumer's indebtedness to any relative or family member of the consumer if such person is not residing with the consumer; (6) any communication with a consumer whenever it appears that the consumer is represented by an attorney; (7) any false representation of the extent or amount of a debt, or of its status in any legal proceeding; (8) any false reports by creditors to credit reporting agencies and (9) auto-dialed collection calls made to your cell phone without your permission.

As an attorney, I often talk to potential clients on the phone regarding a variety of issues. Regardless of what their issue may be, they can do a number of things in preparation for a successful first phone call with a lawyer. The following are just some of the things a person can do when calling a lawyer for the first time: 1. Contact information – Have your contact information ready to provide to the attorney. Your name, address, email, and all phone numbers at which you can be reached. Also, make sure that when you provide this information that you specify whether the attorney is permitted to leave a message with anyone else in the household. I often ask this question, but it can helpful for a client to let the attorney know, as well. 2. Have a summary of your issue(s) – Before contacting an attorney, give some thought to your issue(s) and summarize the key aspects of your problem. I often find that when people call me to discuss an issue they are nervous and forget details. By jotting down some notes and summarizing your issue(s), this can alleviate some of the nervousness and help you express more clearly why you feel you need an attorney. 3. Have important dates and names handy – Always have important dates and names handy, so that you can provide them to the attorney. One of the first things an attorney may ask you after your name are the names of anyone else involved, so that they can determine if there are any conflicts. Also, dates are very important because the attorney has to determine if there are any statute of limitations issues. 4. Have a calendar in front of you – When talking with an attorney, often times you are nervous and forget dates and days, so having a calendar in front of you when talking to them can be helpful. 5. Have all related documents in front of you – Make sure that all related documents are in front of you when contacting an attorney, as much of the pertinent information will often be contained in those documents. For example, if you have been involved in a motor vehicle accident, having the accident report, hospital records and insurance declaration page, can be very helpful, as it will contain most of the information an attorney will need to determine if they can assist you or not. Hopefully, if you follow these tips it will help make your initial phone call with an attorney a success! Image courtesy of Unsplash

If you have been injured on someone’s unsafe property, you may have a claim to recover damages. The body of law that governs such claims in West Virginia is known as premises liability law and governs the legal responsibilities of property owners and occupiers to prevent injuries to persons on another’s property. West Virginia premises liability laws applies a standard of care that requires a property owner to regularly inspect the property to identify dangerous conditions and either repair them or post warnings as appropriate. Employers, who are also property owners also have a duty to provide a reasonably safe place to work and to maintain the workplace in a reasonably safe condition. A number of premises liability cases center on the issue of when a dangerous condition arose, and whether the property owner had a reasonable opportunity to correct the hazard before someone got hurt. Liability for the injuries can attach to the owner or occupier of the property where that owner/occupier had a reasonable period of time in which to discover and/or correct the dangerous condition but failed to do so. The issue of what constitutes a reasonable period varies and is determined on a case-by-case basis. In addition, consideration is also given to the injured party’s actions and whether the injured person acted carelessly in a way that caused them harm. The court must assess all the facts and apply legal principles to decide whether liability lies with the defendant or the plaintiff in a premises liability case. One principle employed in West Virginia for determining whether an injured party can recover damages is the “open and obvious” hazards doctrine. This doctrine holds that a property owner is not responsible when a visitor on the property encounters an open, obvious and reasonably apparent danger, because the appearance of an obvious hazard gives notice to a reasonable person to proceed at his or her own risk. If that person chooses to ignore obvious danger, then fault lies with the visitor who assumed the risk and not with the owner/occupier of the property. The open and obvious doctrine operates as an absolute bar to recovering damages. In other words, if the hazard was open and obvious, the injured party cannot recover, regardless of how much or how little they may have been at fault for their injuries. The open and obvious doctrine has had a storied history in West Virginia, being abolished by the West Virginia Supreme Court of Appeals in 2013, before being restored by the West Virginia legislature in 2015.  The current law on open and obvious can be found in West Virginia Code §55-7-27, which reads, in pertinent part: (a) A possessor of real property, including an owner, lessee or other lawful occupant, owes no duty of care to protect others against dangers that are open, obvious, reasonably apparent or as well known to the person injured as they are to the owner or occupant, and shall not be held liable for civil damages for any injuries sustained as a result of such dangers. The effect of this law is that West Virginia property owners/occupiers are only liable when a hazard that is not apparent to a guest but should have been known to the owner causes an injury. If you have been injured on the premises of another, it is important that you contact an experienced attorney who understands the law and its potential impacts on your claim right away to explore your rights. Image courtesy of Unsplash.

The Ohio Supreme Court has finally answered a long percolating issue related to oil and gas lease practices. In Dundics, et al. vs. Eric Petroleum Corp., the Court found that individuals holding oil and gas leases on behalf of oil and gas companies must be licensed real estate brokers. In this case, Thomas Dundics filed suit against Eric Petroleum claiming that Eric Petroleum had failed to pay him related to lease deals that Dundics had secured on behalf of Eric Petroleum. Dundic would seek out landowners and help get them to lease their land with Eric Petroleum. Dundic was to be paid based on the number of acres he was able to get leased and was supposed to receive a future percentage of production from working wells. When Dundic sued Eric Petroleum seeking to enforce the payment arrangement, the Mahoning County Court of Common Pleas dismissed the case finding that Dundic was not properly certified as a real estate broker and, as such, was precluded from bringing any lawsuit to recover damages for real estate transaction activities. The case worked its way through the appellate process and was finally affirmed by the Ohio Supreme Court. The Court held that the definition of real estate under Ohio R.C. 4735.01 includes “leaseholds as well as any and every interest or estate in land situated in ”. This case brings to bear one of the most frequent questions that people should be aware of when leasing or selling their mineral rights.  Who is working for who? Many dozens of different land contractor companies work directly on behalf of oil and gas companies to get landowners signed up to lease and sales deals. Those contractors are rarely concerned with the best interests of the mineral owner. Their goal is to get the best deal for the company they are working for and to get the most compensation for themselves. There are, however, companies out there that land owners can reach out to for protection. Law firms, like ours, have been working for years now to protect the interests of landowner. Other companies do exist that provide very important services. Bordas Mineral Management, LLC has taken up the mantle of helping protect mineral owners from the evils of the leasing system. If you have questions about your lease or have been approached by company landmen asking to talk to you about your land, please reach out and find individuals who are qualified and ready to protect your interests. Image courtesy of Pixabay