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

Recently, in the case of Swanger v. Warrior Run School District, the United States District Court for the Middle District of Pennsylvania addressed the duty of school officials to warn third parties of potential harm. Plaintiff Bobbie Jo Swanger was a mentally challenged student in Warrior Run School District's special education and life skills program. Defendant Duane Mattison was also a student in the special education and life skills program, and under the legal and physical custody of the Tioga County, Pennsylvania Department of Human Services. Prior to being placed at Warrior Run, Defendant Mattison had a history of inappropriate sexual behavior. During his time as a student at Warrior Run, Mattison was alleged to have made an inappropriate sexual advance against another student. The allegations were unfounded, however, because Mattison was found to have had sexual contact with a chicken at his foster home, he was removed from Warrior Run, and placed in an alternative education program (“DTA”) to complete the 11th grade. Warrior Run was not notified of the specific events giving rise to his removal from school since they did not involve school students or personnel. After successfully completing the 11th grade at DTA without incident, Mattison was permitted to return to Warrior Run. Warrior Run was not provided any records from DTA. Prior to the events leading to the subject claim, and while Mattison was a student at Warrior Run, he was again admonished for allegedly making a comment about touching a girl’s breasts, but he was not disciplined. Instead, Warrior Run noted that teachers were keeping a “watchful eye” on Mattison. Soon thereafter, Mattison, after allegedly securing Bobbie Jo’s consent, touched her private areas during class while the teacher was assisting other students. Another student observed and reported the incident and Mattison was removed from Warrior Run that day. After completing its investigation, Warrior Run determined that it would not proceed with disciplinary action since Mattison was to return to DTA. The District Court dismissed plaintiffs’ Title IX claim for sexual discrimination because she could not establish that Warrior Run was "deliberately indifferent to sexual harassment, of which they have actual knowledge, that is so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school." Davis Next Friend LaShona D. v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 650, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999). Moreover, the Court found that Warrior Run School District's response to the likelihood of peer harassment was not "clearly unreasonable.” In other words, the plaintiffs could not show that Warrior Run’s actions in keeping a “watchful eye” on Mattison were unreasonable. The Court held that for Plaintiffs to succeed on their Title IX claim and establish that the school was deliberately indifferent, there would have to be evidence in the record to demonstrate that a school official either knew that Mattison was a substantial danger to the other female students or knew that Mattison was sexual harassing Bobbie Jo or other students at Warrior Run, and took insufficient, or no, measures to attempt to remedy the situation. Plaintiffs also filed a claim under Section 504 of the Rehabilitation Act, which provides: No otherwise qualified individual with a disability in the United States . . . shall, solely by reason of his or her disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. . .29 U.S.C. § 794(a). To establish a violation of Section 504, a plaintiff must show that "(1) he is `disabled' as defined by the Act; (2) he is `otherwise qualified' to participate in school activities; (3) the school or the board of education receives federal financial assistance; and (4) he was excluded from participation in, denied the benefits of, or subject to discrimination at, the school." Andrew M. v. Delaware Cnty. Office of Mental Health & Mental Retardation, 490 F.3d 337, 350 (3d Cir. 2007) Here, Plaintiffs asserted that Warrior Run knew was a sitting duck for this sexual predator who was repeatedly acting out in the classroom setting and, that her disability of mental retardation rendered her most vulnerable to his predations. However, the Court determined that plaintiffs failed to point to any causal relationship between Bobbie Jo's disability and Mattison's misconduct towards her or shown that her disability affected the decisions of Warrior Run. More specifically, the Court found no record evidence that the Warrior Tun discriminated against female students in special education classes in any way, nor is there evidence that Warrior Run took any actions based on the special education students' disabilities that rendered them more vulnerable to Mattison's potential sexual misconduct. In sum, there was no evidence to suggest that Bobbie Jo was treated differently than any other student, disabled or not. Plaintiffs also brought a claim under 42 U.S.C. § 1983, wherein the plaintiff must demonstrate a violation of a right protected by the Constitution or laws of the United States, committed by a person acting under color of state law. Nicini v. Morra, 212 F.3d 798, 806 (3d Cir. 2000) (en banc). To meet the requirements of a state-created danger claim, a plaintiff must show (1) the harm ultimately caused was foreseeable and fairly direct; (2) a state actor acted with a degree of culpability that shocks the conscience; (3) a relationship between the state and the plaintiff existed such that the plaintiff was a foreseeable victim of the defendant's acts, or a member of a discrete class of persons subjected to the potential harm brought about by the state's actions, as opposed to a member of the public in general; and (4) a state actor affirmatively used his or her authority in a way that created a danger to the citizen or that rendered the citizen more vulnerable to danger than had the state not acted at all. Bright v. Westmoreland Cty., 443 F.3d 276, 281 (3d Cir. 2006) The Court determined that the Plaintiffs failed to establish that Warrior Run’s teachers and administrators were deliberately indifferent to Bobbie Jo's needs by "consciously disregard a substantial risk of serious harm" posed by Mattison. Kaucher v. Cty. of Bucks, 455 F.3d 418, 427 (3d Cir. 2006) The Court reasoned that only one school official who arguably had any knowledge of Mattison's "propensity" for sexual misconduct did in fact take some action to remedy and address every specific situation each time he was made aware of an issue with Mattison. Furthermore, it is undisputed that this school official did not know of any inappropriate sexual contact between Mattison and any student at Warrior Run prior to the Bobbie Jo’s incident. Therefore, the Court held that none of the individual school defendants' conduct, in light of the circumstances known to them, could be reasonably found to be conscience shocking, nor do their affirmative actions, if any, bear a direct causal relationship to foreseeable and fairly direct harm suffered by Bobbie Jo, such that she was rendered more vulnerable to danger than had the Defendants not acted at all. Finally, the Plaintiffs filed a breach of fiduciary duty claim alleging that the defendants owed Bobbie Jo a duty to use reasonable care in carrying out their duties" and that they willfully failed to provide her with an environment that is reasonably safe from the intentional harmful acts of other students. Defendants contend that they are immune from suit with respect to this claim under the Political Subdivision Tort Claims Act, 42 Pa. Cons. Stat. Ann. § 8541 et seq. ("PSTCA"). Pursuant to the Political Subdivision Tort Claims Act, 42 Pa. Cons. Stat. Ann. § 8541 et seq. ("PSTCA"), a local agency cannot be held "liable for any damages on account of any injury to a person or property caused by any act of the local agency or an employee thereof or any other person." 42 Pa. Cons. Stat. Ann. § 8541. The Act provides for eight exceptions to this rule: (1) vehicle liability; (2) care, custody or control of personal property; (3) real property; (4) trees, traffic controls and street lighting; (5) utility services facilities; (6) streets; (7) sidewalks; and (8) care, custody or control of animals. 42 Pa. Cons. Stat. Ann. § 8542(b) The Court found that none of the eight exceptions to the PSTCA applied, therefore, in order to proceed, the Plaintiffs must have presented evidence to create a material factual dispute as to whether the individual school defendants' conduct could amount to actual malice or willful misconduct. On that issue, the Court determined that there was insufficient evidence upon which a reasonable jury could find actual malice or willful misconduct on the part of any of the defendants. 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.

It is so easy sometimes to talk about negative things, challenges, and hardships in our lives that we forget to count our blessings. Most of us have many blessings each day that we simply take for granted. Some of these include waking up, having a bed, having water, having something to eat, having clean clothes, having a toothbrush, and having somewhere to live. I have not yet even mentioned things like having a family, a car, or a job. And these are just our things! Many of us also have people to love and people who love us. We have parents, children, spouses, siblings, cousins, and friends. And most of all, we have God. How many times do we just stop and thank God for being there for us? So, the next time you are having a bad week, a bad day, or even just a bad moment, take a few minutes and grab a piece of paper. Start writing down your blessings. You just might be surprised at how they outnumber the challenges in your life. It will almost surely make you feel like things aren’t quite as bad as you thought they were. Sometimes we need to literally count our blessings and then, give thanks!

Once more, Thanksgiving is upon us. I always like to reflect at this time of year to make sure I am being truly grateful. Many times we take for granted what others do not have. I am grateful I still have my parents. Dad is 85 and mom is 83, and they are still getting around. Mom still exercises to Gilad’s Bodies in Motion. Dad putters around the yard finding things to get into or goes to the basement to paint. He’s very artistic. I have a number of his paintings on my walls. I am grateful for my children and grandchildren. They give me an untold amount of joy. The time I get to spend with them is more valuable than gold. They may not appreciate the time we spend together as I do, but once they are older, they will remember, and I hope, smile at the memories. Included in my other blessings, I won’t forget to be grateful for cleaning my house, because I am fortunate to have one. I don’t even mind cleaning the toilet because I have the blessing of indoor plumbing. Don’t take it for granted! When I was a very small child, we didn’t have indoor plumbing. We had an outhouse. Luckily for me I have two older sisters who went to the outhouse with me before going to bed. They took care of any lurking spiders so I didn’t have to worry about them. Do I have everything I want? Of course not. That’s why they are called wants. I have a family that I love, a running car, a warm home, food to eat, and clothes to wear. At the end of the day my wants can wait as long as my needs are met. I am truly blessed and grateful. Image courtesy of Unsplash.

Litigation involving a tractor-trailer/commercial motor vehicle is sometimes complicated as they involve multiple legal issues, various facts/circumstances surrounding the occurrence and a complex interaction of state and federal law. Due to the nature of many of these cases involving a much larger commercial motor vehicle, most involve significant damage claims such as death, catastrophic injuries (e.g., lost limbs) and/or complex injuries (e.g., brain trauma). Due to the high stakes and complexities involved in commercial motor vehicle cases, they can be among the most sophisticated and gratifying cases a lawyer can handle. We at Bordas and Bordas regularly handle cases involving all kinds of commercial motor vehicles.  We are well versed in the federal requirements governing the trucking industry and the necessary training truck drivers should be provided by their employers. We constantly preach the need rapid action when it comes to handling these kinds of cases. I was a defense lawyer for over 15-years and represented commercial carriers in catastrophic loss collision throughout the United States. I have firsthand knowledge that trucking companies, their insurance carriers and their attorneys understand the need for swift action, as it is the norm for defense lawyers in the trucking industry to actively market their ability to place a “rapid response” investigation team at the collision site as soon as the truck company or insurer reports the loss. I found myself, on more occasions than I want to admit, getting a telephone call moments after a catastrophic collision and being retained by a trucking company to investigate the collision, retain an investigator to speak to witnesses, interview our driver, preserve evidence and retain an expert to immediately visit the scene and inspect the involved equipment. I knew everything about the collision within hours after it happened and knew the intricacies of the truck driver’s actions within 24-hours. Doesn’t that place the trucking company at an advantage if litigation is necessary? The short answer is, YES!!! As soon as Bordas and Bordas agrees to represent a client who has been injured in a truck accident, we work to discover as much as possible about the facts of the accident. The availability and accuracy of information quickly deteriorates after an accident, therefore an extremely expeditious information gathering process is critical. I implement the same strategy that I did as a defense lawyer, and if we are called early enough, we are typically successful at getting the necessary evidence preserved before it can be destroyed. If you or a loved one has been injured in a collision involving a commercial motor vehicle, please immediately call us and we will immediately begin our efforts to preserve necessary evidence to assist in prosecuting your case. Image courtesy of Unsplash.

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.

Psalm 107 tells Israel’s story. God brought His people out of slavery and into land of their own. But even after entering the Promised Land, they still struggled. Some faced hardship. Some wandered in the wastelands, hungry and thirsty. Some found themselves in deadly peril.  But God heard their cries and delivered them from their distress. Again and again, the psalmist stops to give thanks: “Let them give thanks to the Lord for His unfailing love and His wonderous deeds for mankind.” It’s easy to give thanks for the material blessings in our lives--an unexpected gift from a friend, a bonus at work, a perfect vacation with loved ones. But have you stopped to give thanks for God’s presence in the midst of your struggles? Like the people of Israel, we face struggles, hardships, and losses in our daily lives. But God is only a prayer away! I was reminded of this in January when my dad passed away after a long battle with cancer. I’ll admit it: I had a hard time watching my dad go through chemo treatments, knowing that he was getting weaker day by day. But through it all, I felt God’s presence, and I experienced the peace and comfort that only He can bring. And so, like the psalmist, I remembered God’s unfailing love and I gave thanks. What about you? When Thanksgiving rolls around, will you look back and remember a time that God was with you when you were facing a struggle of your own? Did He give you peace? Or comfort? Or rescue? If so, then be sure to follow the psalmist’s example: Give Him Thanks! Image courtesy of Unsplash.

Thank you all veterans. Today; yesterday; tomorrow - every single day - you are our true heroes. You lay your lives on the line for the families of this beautiful country. You sacrifice for complete strangers to maintain the security of our homeland and for that we thank you. You could be like so many others and leave it up to someone else to take on this great responsibility, but you don't. You walk the walk. For that, we will never forget. We will never forget from years past, now, and in the future of our families. The things you have seen; the split decisions you have had to make to ensure our safety and protecting us. You go into the most horrific circumstances, you say goodbye to your own families knowing they have to share you with all of us, but you do this selflessly as we go about our everyday lives. You sacrifice so very much. We all salute you. We stand proud with you. Most of all, we thank you. Today is a day of recognition, and you are forever our heroes. If you've not served our country you cannot possibly have any idea what's in a day's work; but, I assure you we are grateful and we will never forget you. God Bless the USA and God Bless you! Image courtesy of Pixabay.

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.

“Does this mean we have to go to trial?” I would have to say I hear this question from clients more than any other, generally accompanied by an anxious, pleading look. As attorneys who pride themselves on being prepared to proceed to trial in any case we take on, and doing so with a good deal of success, I think we sometimes forget the type of anxiety our clients feel when facing the possibility of having to tell their story in front of a bunch of people they have never met. As trial attorneys, taking a case to trial is the pinnacle of what we do, so we welcome the opportunity. As laypeople, our clients may not feel that same sense of excitement. So, the short answer to the question posed above is, almost always, “no”. Here’s why: Once a case is actually filed in court, most judges will enter what is called a scheduling order.  This order sets deadlines for certain things to be accomplished, like making amendments to pleadings, completing discovery, and filing motions which would dispose of the case one way or the other. Importantly, this order almost always requires the parties to participate in settlement mediation several months in advance of the anticipated trial date. It is this settlement mediation that frequently results in the case being fully and finally resolved without trial. In simple terms, mediation is a process whereby the opposing sides to a particular suit come together, along with a trained mediator, and try to reach a settlement. The mediators are lawyers who are specifically trained in ways to bring the parties closer to a resolution. It is the mediator’s job to tell each side about the particular strengths and weaknesses of their case, and how those strengths and weaknesses should cause them to alter their settlement position. As one mediator likes to tell the involved parties, “. . . a mediation is like a junior high dance. At the beginning, the boys are all on one side of the room, and the girls are all on the other side. It’s my job to bring everyone to the middle.” It’s a fitting analogy. The mediation will typically start with the parties all together in the same room, so the mediator can introduce himself/herself, and give the clients a bit of information about what to expect. After that, everyone goes to their separate corners. The plaintiffs will be in one room, the defendants in another. The mediator generally begins with the plaintiffs, asking us to present a settlement demand. He then takes that demand to the defense, talks with them about how he views the case, and the process goes on from there. Sometimes, it’s over within an hour or so, after it becomes clear that the parties are so far apart, there is pretty much no chance of reaching a resolution. More often than not, however, the process continues for several hours, with the mediator gently, and sometimes not so gently, nudging each side toward the middle. When everyone finally agrees on a figure, the attorneys sign a document acknowledging the terms of the settlement, everyone shakes hands, and it’s over. Just like that. Obviously, what I have presented here is a very, very rough outline of an important part of the litigation process. If you actually have occasion to become involved in a mediation, our attorneys will spend a significant amount of time with you, explaining what to expect. This short article was not intended to be a comprehensive overview. It was simply a means to relieve some of the anxiety you may feel about going to see an attorney if you’ve been hurt. The vast majority of the cases we handle are settled long before trial. So, try to relax. You don’t have to go to trial. Image courtesy of Unsplash.

As Thanksgiving and Christmas approach, we start to partake in some of our favorite holiday traditions and festivities. One tradition that accompanies several holidays is that of the “food eating contest.” Although seeming harmless in nature, these contests can often turn deadly and can leave those who put on the contest in hot water. This is the case as it relates to the death of a 20 year old student at The Sacred Heart University in Fairfield, Connecticut. Specifically, the Washington Post and other news outlets have reported that the university is facing a lawsuit brought by 20-year-old student Caitlin Nelson’s family, after Ms. Nelson died after participating in a “pancake eating contest” to raise money for charity. What is known about this contest is that upon the competition beginning, Ms. Nelson, like the other participants, started to shovel as many pancakes into her mouth at once in order to be the first to finish the contest. However, a few minutes into the contest, Ms. Nelson began to shake uncontrollably and collapsed. It was found that because of the nature of the pancakes – which largely consist of flour and liquid, which then turns into a “thick glob of paste” when the pancakes come into contact with saliva or other liquids, that Ms. Nelson’s airway was essentially completely compacted causing her to choke to death. The family of Ms. Nelson in their lawsuit against the University made several allegations in regard to the liability of the University for this young woman’s death, among those being the following: 1.        There was an inherent risk of harm to amateur participants in speed eating contests; 2.        The use of pancakes in a food eating contest is particularly hazardous because of the food’s composition; 3.        The University failed to investigate the safety of the contest before approving the same; and 4.        The University did not have adequate and appropriate medical personnel at the contest to monitor the participants Although the end result of this lawsuit cannot yet be predicted, it is important to understand the risks associated with these types of contests whether you are a participant or a business or other type of entity allowing these contests to take place. As we head into the holiday season, make sure you are putting your safety first while partaking in your favorite holiday traditions.

With the busyness of life, I think we all forget to just take time for ourselves and our families to regroup, refocus, and appreciate so many little things in life that we take for granted every day. My daughter and I recently took a vacation and this vacation was different than our “usual” trips. It was centered on quietness, slowing down, relaxing, and enjoying God’s beautiful creation. It is amazing how quiet the world around you can be when you separate yourself. To quote from one of the pictures I saw: “Make time for the quiet moments as God whispers and the world is loud.” It is amazing what a few quiet moments can do. And when you open your eyes to the world around you, the view is breathtaking!