Legal Advice Blog: Legal Advice, Case Insights, & Local Law Information

Everyone should be having the conversation about heart health with family and friends but also that conversation needs to include talking about making lifestyle changes that benefits the heart. Heart disease is the leading cause of death in both men and women. Making changes is very important but if done with someone you love and care about such as a family member or a close friend, this can only inspire you and help that loved one want to make heart healthy changes too. Preventing heart disease is possible and the following are steps that can be taken to improve your heart health which includes, of course, to stop smoking. Secondhand smoke is dangerous and needs to be avoided. Control cholesterol and blood pressure by visiting your doctor for the best advice. Limiting alcohol consumption by not more than 1 drink a day for women and not more than 2 drinks a day for men. Eating healthy by getting plenty of fruits and vegetables, low-fat dairy products and limits on trans fats, sugars and salt. If you are that couch potato, get off the couch and get active. Aerobic exercise over two hours a week is best. Exercise and eating healthy will help you lose that 10 pounds of excessive weight which can lower risks of heart disease. If it is your significant other, a sibling or good friend that needs encouragement, try doing all of this together and both of you will benefit. Make plans for healthy meals and go shopping together. Get active by taking a walk every day and gradually building up the pace. Makes plans to meet at the park. In in our area we have beautiful parks and it doesn’t cost a penny to walk the trails. Walking your dog counts too. Take turns. One walks the dog at a more sedate pace while the other is walking at a more ‘get your heart pumping’ pace and then switch. Visit your doctor to start the discussion based on your own personal needs. Find that special person or persons and make a plan. Our weather will start improving so get outside. Get started on that walking regimen and be careful what you are eating. This is a start. Your heart will love it.

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.

Unfortunately, or fortunately, depending how you look at it, chances are most people reading this blog are not an attorney. If you are one of those readers who are not an attorney, you would be well-advised to heed the following warning: “It is NEVER, EVER, EVER, EVER too early to investigate the need for and/or retain an attorney for a legal matter.” That is not to say you need to retain an attorney for every legal matter. There are matters that are so minor an attorney is not needed, the paper cut caused by a defective envelope. However, you should, at the very least, investigate the need to retain an attorney if there is any substance to the situation. This is especially true for any claim that will fall under a contingency fee agreement (the lawyer will not charge a fee or costs UNLESS a recovery is made on your behalf). In a matter involving a contingency fee you have nothing to lose and everything to gain by hiring an attorney. This article will focus on why it is imperative that any who themselves  or whose loved one has been mistreated by an insurance and/or an oil company, was injured in motor vehicle accident, dog bite, slip/trip and fall, or explosion, at the hands of a medical professional, or is physically or emotionally injured in some other event, to IMMEDIATELY contact an attorney. Five of the countless reasons why you should immediately investigate and/or retain an attorney when harmed by another party are: 1) No fee or costs will be charged unless a recovery is made on the client’s behalf. The fees in a contingency matter are only a percentage of what is recovered. The attorney will be entitled to be reimbursed litigation costs only if there is a recovery. Thus, the client can be assured they will never have to pay anything out of his or her pocket, regardless of whether the attorney can help or not; 2) Locations can change, memories do fade, and evidence may be lost on every minute of every day after an incident. I have been involved in a number of cases in which the location of the accident is changed either by outside factors or parties involved in the matter. For example, a property owner may change the defect to try and deny the defective condition existed on the property or may remove it to prevent others from being injured. I have had the location of motor vehicle accidents changed by a pre-scheduled alteration by Penn DOT, which was not always a party to the case. I had cases in which Penn DOT had been scheduled to repave the road, change the traffic signs and make other changes to an accident scene before the incident in question ever occurred. Whether the changes were intentional or not, the changes will impact the injured party the most. This is because the injured party has the burden of proof. Thus, if you are trying to proof a sidewalk was defected on a property, not only do you need to be able to show the defect existed on the day of the incident, but you must establish the specifics of the defect. For example, a height difference caused by a shift in a concrete slab may or may not be a legal defect, depending on the size of the height difference. If the defect is fixed by the property owner who has had no notice of the fall before photographs and/or measurements can be taken, you will likely lose that case if you are not able to proof what the existing height difference was at the time of the incident. Additionally, you will want to get statements from witnesses, because memories DO FADE over time. Even when the witness wants to be helpful, they simply can’t because the memory has faded and changed over time. In most cases, the witness statements will prove invaluable with a witness whose memory has faded innocently and can be refreshed by the statement or will help with a witness whose memory has “conveniently” faded over time but is confronted with the statement given soon after the incident. I have clients and tortfeasors lose and/or destroy evidence before my involvement, unknowingly and knowingly, which could have huge ramifications on the case. If the tortfeasors are not put on notice of the claim, the destruction and/or loss of the evidence may have no impact on them at all, although they lost or destroyed evidence. Thus, it is imperative to get an attorney involved early on to make sure the evidence is properly preserved; 3) Everyone else’s rights are being protected but yours are not. Generally, the other party’s rights and interest will be protected by their insurance company. The tortfeasor, the party that caused the harm, and his/her insurance company have the same motivation and interest; to limit the total amount of your recovery. They are united in their goal to take whatever steps necessary to limit and/or completely eliminate any recovery on your behalf. The insurance company doesn’t want to have to pay a claimant any money and their insured, the tortfeasor, will be concerned of its own personal liability over the amounts of the available insurance. Even with a party that you would think will look out for you, they may not. For example, a person injured on a third party’s property while in the scope of the job cannot assume their employer will look out for them. This is true even though its employees have been injured trying to make a profit for the employer. The employer may be concerned with a worker’s compensation claim or its own potential liability to third parties involved in the same incident. Even an injured party’s own insurance company can’t always be trusted to protect the injured party’s interest at times. For example, in a car accident, an injured party who has UIM/UM coverage can’t expect its insurance carrier to protect the clients’ interest. With UIM (Underinsured Coverage), the injured party’s insurance company will be liable to its injured insured for any amount of damages over the tortfeasor's liability policy. Thus, the injured party’s insurance carrier will be motivated to insure the insured’s injuries are limited and/or lessened, so that the value of the injuries/damages are less than the amount of the tortfeasor’s insurance coverage. I have had cases when the matter is being investigated by independent parties that still show the need to hire an attorney early in the case. I have received police reports that concluded incorrectly that my client was at fault for the incident. In one case, the police improperly calculated the speed of my client’s vehicle in their investigation. Photographs of the scene taken by our investigator within days of the incident offered evidence as to the correct length of our client’s skid mark, which supported our position that the police had used an incorrect length for the skid mark to calculate my client’s speed. In another case, the investigating officer didn’t do a thorough investigation and didn’t discover an independent witness who offered evidence a truck driver was not providing correct information to the investigating officers. Before the independent witness was discovered, the police incorrectly conclude my client was at fault for the incident that killed him. However, unlike all of the above examples, an attorney hired for an injured party will make sure to protect the party’s interest. That is insured because the contingency agreement confirms that the attorney receives a percentage of the recovery on behalf of the injured party. Thus, the higher the recovery to the client, the more the attorney will receive. I can assure you that I and the other attorneys at our firm are driven to get our client’s the best result possible because of the trust the client has placed in us, our pride to do the best job possible and/or our completive drive not to lose. For those of you who are reluctant to think that statement is nothing more than some kind of cheesy sales pitch, I can only assure you that is what drives the attorneys at this firm and remind you that regardless of the same, the contingency agreement confirms that an attorney will be driven to get the client the best result possible;   4) There is no such thing as an “open and shut case.” Very seldom do people admit they are at fault once the dust settled. I can’t count the number of times my client said: “Don’t worry this is an open and shut case. The other side admitted to me this was their fault,” or something similar. Often, the police report doesn’t reflect the same or once the person understands that they are liable for any recovery over the amounts of their insurance coverage or they think they could lose their job because of the incident etc., they become far less forthright. Soon thereafter, that “open and shut case” becomes a heated and contested claim, and evidence that was not collected because it was an “open and shut” case is lost forever; and 5) There is no such thing as an “open and shut case,” even in “open and shut cases.” Some aspect of virtually every claim WILL BE CONTESTED, even when most of the facts are not at issue. I can’t count the number of times I had to ask a client why they didn’t get an attorney sooner, while I explained the negative impact of the same. They almost uniformly say that the other side admitted to the police it was their fault or they admitted certain facts that show their fault, only have the other sides insurance company dispute liability and point to other factors to raise an issue of liability. Thus, the other sides insurance company has progressed knowing its intention to dispute liability and collected the evidence to support its version. However, the injured party sat back waiting to be paid for the injuries damages they suffered, because, after all the other side “admitted it was their fault.” Additionally, even when the police report, defendants’ accident report, the OSHA investigation or some other investigational agency finds the other entity at fault or the other side and their carrier admits fault, that doesn’t mean it is an “open and shut case.” There will be other issues. For example, the issue of the extent of the damages. One might wonder how the other side can contest the injured party suffered a broken leg when the bone was sticking out their leg at the scene and the x-ray showed there was a fracture to the leg. Even in a case where the liability and the injuries suffered are conceded, there still is not an “open and shut case.” The impact on the client are routinely contested. I have had countless clients examined by doctors hired by the opposing counsel or insurance company. Of all the hundreds of exams I can recall, only a handful of times did the opposing doctor agree with the treating doctor as to the extent of the injuries and only one or two agreed on the impact of the same. Even in those cases, when the doctors agreed to the impact of the injuries, the issue of what is fair compensation to my client was disputed. I can assure you the dispute was not that the insurance company was willing to pay my client too much. Insurance companies are not known to open their checkbooks and ask people who have been severely injured what would be fair value for the claim. I have always had to wonder if the adjustors would have thought the fair value for the stranger their insured injured would be the same if the same person injured one of the adjustors’ own loved ones. This is not rhetorical question; the answer is they do not. Thus, in order to be able to get fair compensation for a client, we have to start preserving evidence of the damages right away. The opportunity to photograph and demonstrate the progression of scar is lost as time passes. The ability to video the day to day impact an injured leg had on a person is lost as the recovery of the injured leg progresses. Thus, one wants to have an attorney involved very early, even in those “open and shut cases.” The above are just five of many reasons why you should immediately investigate and look to retain a lawyer immediately following an accident. In a perfect world, we could all rely on a number of things when we are harmed or injured. We could rely on the other people in our community to accept responsibility for their actions. We would be able to rely on the insurance companies to fulfill the obligations to fairly and reasonably pay the claims of the injured people. We could rely on others to treat us as we would treat them. We could rely on nothing to impact our claims, such as a malicious intent to destroy evidence or an innocent change of evidence. We could rely on investigators to be perfect in their investigation. However, this is not a perfect world, so it is NEVER, EVER, EVER too early to retain an attorney after you are injured or harmed by somebody else, because by not hiring an attorney early on a client has everything to lose.

Under Pennsylvania’s Motor Vehicle Financial Responsibility Law (“MVFRL”) automobile insurance companies are required to offer policyholders the right to purchase uninsured (“UM”) and underinsured (“UIM”) coverage to protect themselves and members of their families. UM coverage applies when an insured suffers injury or damage caused by a third-party tortfeasor who is uninsured. UIM coverage applies when a third-party tortfeasor injures or damages and insured and the tortfeasor lack sufficient insurance coverage to fully compensate the insured. In addition, under Pennsylvania law an insured may elect to stack coverage. Stacking refers to the practice of combining the insurance coverage of individual vehicles to increase the amount of total coverage available to an insured. Under section 1738 of the MVFRL, an insured may waive coverage providing stacking of UM or UIM coverage. If an insured decides to waive the stacked coverage, then the insured’s premiums are reduced to reflect the different cost for unstacked coverage. In order for an insured to waive stacked coverage, the insurer must provide the insured with a statutorily-provided waiver form, which the named insured must sign if they want to reject stacked coverage. Many automobile insurance company policies contain what is commonly referred to as a “household exclusion”. This exclusion typically states that the UM/UIM coverage does not apply to bodily injury while occupying or from being struck by a vehicle owned or leased by you or a relative that is not insured for UM/UIM coverage under this policy. This exclusion typically comes into play where an insured owns both a motor vehicle as well as a motorcycle or has multiple vehicles insured in the same household with different insurance companies. Most insurance companies writing policies in Pennsylvania will not insure both automobiles and motorcycles on the same policy. The insurance company thereby forces the insured to purchase two (2) separate insurance policies: one covering the automobile and a separate policy covering the motorcycle. In the event the insured is injured in a collision, the insurance company will typically invoke the “household exclusion” to prevent the insured from collecting the UM/UIM benefits available under the other vehicle’s policy of insurance. Accordingly, by splitting the insurance policies between the different vehicles and then invoking the “household exclusion” the insurance companies have historically avoided the stacking of those different insurance policies, without having obtained a waiver of stacked UM/UIM coverage from the insured. In the recent case of Gallagher v. GEICO Indemnity Company, the Pennsylvania Supreme Court held that the “household exclusion”, often buried in the policy, acts as a de facto waiver of stacked UM/UIM coverage without complying with the statutory requirements set forth in the MVFRL. Accordingly, by including the “household exclusion” within their policies, the insurance companies were selling illusory coverage, meaning the insured was paying for coverage which they could never receive the benefit of. The Supreme Court held that the “household exclusion” effectively strips an insured of the default UM/UIM coverage they are entitled to under the MVFRL, without meeting the requirements of obtaining a signed waiver from the insured. Since the “household exclusion” violates the MVFRL, that exclusion is unenforceable as a matter of law. For years, insurance companies have been relying on the “household exclusion” to deny deserving claimants of these UM/UIM benefits, which insureds had paid premiums for. With this recent ruling from the Pennsylvania Supreme Court, insured’s can finally begin to receive the amount of compensation for which they had previously paid for. The above case also highlights why it is important to speak to an attorney after having been involved in an accident, to learn about your rights and what you are entitled to recover under any and all available insurance coverages. Image courtesy of Pixabay.

With winter in almost full force, it’s time to bring your animals inside and out of the cold. I’m one who truly believes that if you have a dog, they should be part of your family, they live inside with you, not tied to a dog box or a tree outside all year round. I know that some dogs can take the cold better that others, you should know this before getting any dog. Barley & Guinness live inside and sleep in our bed with us if they so choose. They love to be out in the cold weather and love the snow, but when they want to come in and lay by the fire, they can do that whenever they want. With the cold temperatures here, you need to get your best friend out of the cold and inside. You need to make sure that have shelter and what you’re providing them is recommended for these freezing and below freezing temperatures. Dogs are freezing to death in these cold temperatures due to the lack of common sense. If you must leave your dog outside, you must make sure that have plenty of food and that their water is not frozen, they have insulated shelters that are kept dry and clean, if not they will freeze to what ever it is that they are laying on. Do the right thing, bring them inside. If it’s to cold for you to sleep outside it’s to cold for them. Once again there are some dog who love these freezing temperatures and can withstand them to appoint. Be the person that your dog thinks you are, kind, caring , loving and with take care of them the right way for all their lives. Bring them inside!!! Adopt don’t shop and animal fighting is not a sport, it is abuse and needs to be reported to the local authorities. Bark on Bordas Dog Nation, Bark on.

House Bill 2073 was introduced on January 9, 2019 and was referred to the House Energy Committee. The stated purpose of the bill is to implement recommendations that were made as a result of studies that the legislature required when it passed the Natural Gas Horizontal Well Control Act. Importantly, the proposed law requires the continuous monitoring of air, noise, dust and particulates. It would also move the required set-back for well operations from 625 feet to 1,500 feet from the outer limits of disturbance of the well site. The proposal would add real time monitoring of many issues which have caused tremendous nuisance and stress to landowners. It would also require that data resulting from these monitoring programs be made available for public study. If passed as written the law would limit permitted noise ranges and prohibit “light from artificial illumination, flares or other sources” from shining directly on any residence or livestock. These are the types of laws that our legislature should be getting behind. Laws that seek to reasonably regulate an industry that has grown tremendously without giving due regard to the property rights of West Virginia citizens. These are the types of laws that show that our representatives are looking out for the citizens and the people of West Virginia. These laws allow the reasonable extraction of minerals while balancing the rights of our citizens. I will continue to follow this law and hopefully report on its passage as the legislative session continues. Image courtesy of Unsplash.

Ohio courts have struggled for the last 8 to 10 years with a tremendous amount of litigation related to its Dormant Mineral Act. The Act, in theory, allowed surface owners to reclaim previously severed oil and gas interests if the owner/holder of those severed mineral interests had not done certain things with their minerals over a 20-year period. Ohio has had two different versions of the law and has fought through myriad of legal issues attempting to resolve ownership disputes and disputes as to whether land owners followed the proper procedure or gave the proper notice to mineral owners. It has been so much of a mess that many attorneys now simply refuse to work on the issues. The law and the resulting disputes have trigged many different types of cases and fights such that many oil and gas companies are withholding all lease payments as the issues work themselves out. House Bill 2373 was introduced on January 14, 2019 and has been referred to the House Energy Committee before it will pass along to the House Judiciary Committee. Should surface owners be able to acquire rights to the oil and gas under their property if they don’t already own it? Should the state support the taking of mineral rights away from families and individuals who have owned those rights for decades? Will it even make a difference with as far as the gas industry has progressed in West Virginia? West Virginia has already has laws that permit the development of oil and gas right when the rightful owners cannot be found. That law even provides a mechanism to permit a surface owner to get the benefit of those minerals if the owners cannot ultimately be found. While it may be a way to stream line the determination of oil and gas mineral ownership, it could also be opening new cans of worms. This is certainly a bill to keep an eye on this legislative session in West Virginia. 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 a new year, there are plenty of new experiences that lie ahead for everyone. New experiences can be scary. But imagine the new insight you’ll obtain by trying new things, just say YES! I discovered the Theory of Yes from an old TED Talk by Shonda Rhimes. She talked about this new theory she applied to her life and it was simply saying “yes” to everything. Things you would typically say “no” to just replace it with a “yes.” This theory drastically changed her life. When her children asked her to play with them, she said yes. When public speaking opportunities were offered, she said yes. She overcame her fear of public speaking and learned more about her children, all by simply saying yes. How amazing is it that the shift of just one word could change your entire life? To take it a step further, how amazing is it that just words can truly affect your life. It incredible the power words hold. Speak positively and you should obtain positive results. Good luck in all your endeavors this year and years to come!

With the kickoff of the 2019 Legislative session underway, West Virginians will, once again, be hearing the drumbeat of calls for an intermediate appeals court – an entirely new layer of judges and courts to hear appeals from trial courts before an appeal can be heard by the West Virginia Supreme Court of Appeals (“WVSCA”). Under West Virginia’s historical courts system, the WVSCA is the only appeals Court in West Virginia, and it hears all civil and criminal appeals from West Virginia’s circuit courts. And the system still works wonderfully after all these years, particularly after some modest changes to Court protocols a few years back helped streamline and bring clarity to the system as a whole. But that hasn’t stopped the annual bevy of partisan fearmongering about West Virginia being a “judicial hellhole” and the dire need to “reform” the judicial system by creating a new appeals system from scratch. So, no doubt, West Virginians will once again find ourselves awash in this attempted brainwashing propaganda this legislative season. However, when one looks at the facts about our current Court system, and the entities and reasons behind these calls for a new appellate system, it is plain as day that West Virginia should not give over their hard-earned tax dollars for a system intended only to allow corporate bad actors to get away with harmful conduct. Before I get to the facts, it is critical to understand that the puppet masters behind the calls for a new appellate court are always the same – namely large corporations, with the insurance industry being chief amongst them. Being held accountable in a court of law for their harmful conduct negatively impacts these companies’ bottom lines, so anything that can delay or deter that day of reckoning is seen as beneficial to their corporate profit-taking. And an intermediate appeals court would accomplish that very nicely, by making it more costly, time-consuming and difficult for the American public to obtain justice when they are wronged. Accountability keeps us all safer, which helps us to best fulfill our human potential, by acting as a deterrent when people and corporations understand that they will face consequences if they unlawfully harm another. And straightforward, timely access to the Court system is fundamental to our American way of life. The fact that corporate America, and their paid-for political puppets, are the only one calling for an intermediate appeals court should, by itself, make ordinary West Virginians and small business owners very wary of the need for the same. But partisanship aside, the facts simply do not justify or remotely support spending the tens of millions of dollars of tax payer money that will be required to implement an intermediate appeals court. West Virginia simply does not have an unmanageable litigation overload. Over the last 20 years, appeals have declined more than 67% in West Virginia. Civil case appeals account for just 13% of all appeals filed, and even those have declined 56% since 2004. In 2017, there were only 174 civil appeals filed. Civil case filings as a whole have also declined more than 10% since 2010. Furthermore, appeal by right is guaranteed in West Virginia. Since 2011, the WSCA has not refused a single appeal. At the same time, according to the 2015 WVSCA Statistical Report, the Court has increased the number of decisions on the merits of a case from 670 in the 2006 – 2010 timeframe to 5,003 from 2011 - 2015, an increase of more than 700%. If there is one thing I’ve come to deeply appreciate in my nearly two decades in the legal field it is the crucial importance of the Seventh Amendment right to trial by jury. I’ve come to see that right as being as fundamental to one’s right to protection of self and loved ones from the harmful forces in this world as the right to bear arms, if not more so. That gun won’t do your loved ones much good when you’ve been poisoned to death by some corporation’s decision to put out a drug it knew was unsafe or swindled out of your home by some unscrupulous Wall Street banker. But that trial by a jury of your fellow West Virginians sure can. So please remember the facts and the real reasons behind these calls for an intermediate court this Legislative season, and if you agree this is not a good idea, please contact your local West Virginia representatives and urge them to vote NO on an intermediate appeals court.