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

I have recently read an article about a woman named Celeste Erlach who wrote her husband a letter asking for help raising their two small children, a baby and toddler. Apparently, this letter went viral. In her letter she went into detail about needing some rest but wasn’t getting help from her husband as he kept pushing the bassinet toward her side of the bed until she took over. This incident pushed her to the point where she wrote this famous letter to her husband. After I read the article, I came to the conclusion that the most disturbing part for me was the fact that she was afraid of people pinning her as an inadequate mother. It was then when I looked back on my own experience with my three children and the struggles I endured. I also wanted to be the “perfect mom” and impress our families and friends with the impression I could do it all. I am here to let young moms know that you don’t have to be perfect. Perfect moms don’t exist and the only thing that should be expected from us is that we do the best we can. Asking for help does NOT mean you are inadequate and you shouldn’t feel guilty in doing so. We need to take care of ourselves because if we don’t we are no good for our children. This means letting up on ourselves as well because I believe we are our own worst critic at times. My words to all moms, be kind to yourselves and don’t be so judgmental on other moms. We all have our trials and they will pass. Get up, dust yourself off and continue on with the great adventure we call motherhood.

In today’s world, a potential applicant needs to be 18-years of age before they can apply for a commercial driver’s license. Depending on the applicant, this could lead to a young, inexperienced and potential unprepared driver being permitted to get behind the wheel of a large commercial motor vehicle. A new bill aimed at allowing the interstate operation of commercial vehicles by 18 to 21-year-olds has hit the floor of Congress, with support from various lawmakers, the International Foodservice Distributors Association (IFDA) and the American Trucking Associations (ATA). The “Developing Responsible Individuals for a Vibrant Economy” or “DRIVE-Safe” Act, creates a “two-step” program for 18 to 21-year-olds who gain their commercial driver’s license (CDL) must complete before being given the green light for solo interstate operation. I believe this proposed bill is sound and necessary for the safety of our roadway!!! The program’s rules outlined in the bill include, but are not limited to: The completion at least 400 hours of on-duty time; Another 240 hours of driving time completed with an experienced driver in the cab with them and; Trucks utilized by these drivers must be equipped with safety technology including active braking collision mitigation systems, video event capture, and a speed governor set at 65 miles per hour or below. The proposed bill will strengthen many current industry training programs beyond current federal requirements to ensure safety and that drivers are best prepared. If you are involved in a tractor- trailer collision, please note there are many additional rules and regulations that govern the industry. It is important that you contact an attorney immediately to discuss specifics of your accident so the attorney can investigate and determine what, if any rules/regulations were violated, thereby resulting in your unfortunate event. Please call Bordas and Bordas with any questions.

Most of you who read the Bordas Blogs on a regular basis will recall that I am actively involved with the West Virginia Child Advocacy Network, more generally known by its acronym, WVCAN. I currently serve as WVCAN President and have been a member of the Board of Directors for over four years. Last week, I participated in yet another event that reminded me of how very important the mission of WVCAN is in the protection of the most valuable resource in our state: our children. Erin Merryn is a young woman who was subjected to horrible sexual abuse between the ages of 6-8, and again between the ages of 11-13. As an adult, Erin recognized that during her childhood years, she had never been taught about sexual abuse. Her classmates had not been given age-appropriate techniques to recognize child sexual abuse, nor to report those signs to a trusted adult. Teachers and other school personnel had not been specifically trained to recognize signs of an abused child. Parents had not been given information to help them recognize warning signs of child sexual abuse. Recognizing that such training may well have saved her from years of nightmarish abuse, Erin set out to make a difference. In 2009, Vermont became the first state to mandate child sexual abuse prevention programs in its schools, all because of Erin’s efforts. Today, 32 states – including West Virginia – require such education. Three years ago, working along with WVCAN Executive Director Emily Chittenden-Laird, I helped to draft legislation that created a task force to study the issue of child sexual abuse in WV, and to fashion a program aimed at educating and empowering children and adults alike to recognize the signs of abuse; and to take appropriate steps to have it stopped. Last week, I stood in the Governor’s Conference Room in Charleston as Governor Jim Justice added WV to the list of states that have approved and implemented Erin’s Law. Erin’s Law was approved in WV first because of the effort and determination of Erin Merryn to ensure that no child ever again has to endure the horrors that she suffered in her youth. She is the champion of the legislation, and no one could credibly argue to the contrary. There are, however, other champions in each state that should not be forgotten. WVCAN made this legislation a priority. Our lobbyist, Ben Beakes, made certain that the bill stayed on track, in the forefront of the minds of legislators. Our executive director, whose energy, compassion and commitment never cease to amaze, made sure she was available on a moment’s notice to travel to the capitol to meet with senators and representatives who had questions or concerns.  She was armed to the teeth with facts, figures and studies to support the critical need for this legislation. (One in every 10 children in WV will be the victim of sexual abuse by their 18 th birthday. One in every 10. You probably were not aware of that fact. Neither were most of our legislators.) After all was said and done – after all of the meetings and hearings and proposed amendments and conferences – the bills passed both the senate and the house. Unanimously. West Virginia’s children are safer now than they were a month ago. The tireless efforts of Emily Chittenden-Laird and Ben Beakes will save WV children from experiencing sexual abuse and will rescue others from that horror. One of my favorite sayings is, “No person stands so tall as when she stoops to help a child.” Emily and Ben are human skyscrapers.

In 1809, an Englishman by the name of Forrester left a large pole lying in the road as he was repairing his home. Another man, Butterfield, was riding on the road. His horse tripped on the pole, causing him to fall. Witnesses said that if Butterfield had not been riding too fast for the conditions, he would have seen the pole. The court found that Forrester was negligent. However, Butterfield was barred from recovering anything because of his own negligence. This became known as the rule of contributory negligence. If a plaintiff was guilty of negligence, no matter how slight, his negligence operated as a total bar to recovery. Contributory negligence soon crossed over to the American legal system. But because the rule was so harsh and led to unfair, inconsistent results, opposition grew. Eventually, in the 1960s, states began adopting comparative negligence--a system under which the plaintiff’s negligence is compared to the negligence of the defendant. West Virginia and Ohio have adopted comparative negligence. In both states, the jury assigns a percentage of negligence to the plaintiff and to any other party whose conduct caused or contributed to the injury. The total negligence must equal 100%. In West Virginia, the plaintiff can recover if his negligence is less than 50%. However, his recovery will be reduced in proportion to his negligence. If, for example, a plaintiff is 10% negligent and his damages are $100,000, he will recover $90,000. But if the jury finds that the plaintiff’s negligence was 50% or more, he will recover nothing. Ohio’s comparative negligence rule is similar. However, in Ohio a plaintiff can still recover even if he is found to be 50% negligent. Like most rules of law, comparative negligence can be difficult to apply and is subject to important exceptions. The lawyers at Bordas & Bordas are well-versed in all the rules of negligence, including comparative negligence. If you have been injured as a result of someone else’s negligence, give us a call for a free consultation--even if it’s possible that you may have been negligent too.

Attorneys, like many other professionals, need to be licensed to practice in a particular jurisdiction. Generally, the jurisdiction will be a state. Attorneys generally gain admission to practice in a state by graduating from law school, passing the Professional Responsibility bar exam, and practicing the bar exam administered by the state in which they seek to be licensed and practice. There are other means of admission for attorneys who have been in practice for a number of years and are in good standing with the bar where they may apply for admission to another state through paperwork instead, and some states will allow reciprocity admissions, whereby if the attorney may be admitted if they have passed the bar in a state where reciprocity is permitted. Admission to a particular state allows that attorney to practice in the courts within the state. Separate admission to federal courts can then be sought as well. However, circumstances arise where an attorney may be called upon to participate in a case that is pending before a court in a state where that attorney is not licensed. For example, an attorney who is licensed in West Virginia and practicing law at a firm in the state of West Virginia may be asked to work on a case that the firm has received that is proceeding through a court in Pennsylvania. While the West Virginia attorney can do all kind of legal research and other important work on the case without a Pennsylvania license, in order to attend court hearings, depositions, or other formal proceedings in that case, that attorney would need a Pennsylvania license. Because it is usually impractical for an attorney to obtain a license in another state for just a case or two, the courts permit a process where an attorney licensed and in good standing in another state may be admitted “ pro hac vice” to practice before their court in a particular case. Pro hac vice essentially means “for this occasion only.” In general, for a lawyer to be admitted to practice pro hac vice on a case, they must enter into an agreement with a lawyer who is licensed in the state where they seek to practice to be admitted under that lawyer’s bar license and to learn and abide by all of the rules of the state where they seek this temporary admission. In the case of the West Virginia attorney seeking to practice on a case in Pennsylvania, a Pennsylvania attorney would have to sign formal court documents vouching for the West Virginia attorney’s good standing and ability to learn and comply with West Virginia court rules and laws, and that they will assist the West Virginia attorney in doing so. The Pennsylvania attorney would also agree to attend any formal proceedings along with the attorney gaining pro hac vice admission. A court in Pennsylvania would have to approve the pro hac vice admission, and enter an order stating that admission, which will last only for that particular case. If the attorney who has been admitted to practice pro hac vice on a case violates some rule of law or ethics, the state in which they have received pro hac vice admission is able to take disciplinary action. The specific rules of pro hac vice admission may vary from one jurisdiction to another, but if you see an out-of-state lawyer’s name appear on a case, they may very well be participating as a pro hac vice admission.

The traditional physician-patient relationship begins when a patient seeks care from a doctor, and conversely, the doctor agrees to render care to the patient. Throughout history this has been the basis of the physician-patient relationship, a face-to-face interaction between both parties that implicates a doctor’s duty to a patient, and ultimately the applicable standard of care owed to that patient. However, with the rise of technology, this traditional physician-patient relationship has grown to be quite complicated. In 2018, medical providers may be responsible for your care in a “non-traditional” sense. Specifically, when we look at the growth of technology in the medical field it’s apparent that the physician-patient relationship is continually evolving. For example, there are now several electronic health portals in which patients can directly access not only their medical records, but also their doctor directly for medical advice via their cell phone, tablet, or computer. Essentially these tools make up the “secure patient portal.” These portals are essentially sites that compile all of the patient’s health information and allow patients to ask their doctors questions, schedule appointments, and request prescription refills. Although these portals have been praised by some as they allow for greater accessibility of physicians, and can also promote the patient’s ability to affirmatively take part in their health, there are still associated risks that often leave the patient portal “unsecure.” These risks primarily stem from the use of electronic health portals via phones and portable electronic devices such as tablets, as these devices lack the security that has been instilled on hospital computers and may be accessed by experienced hackers who are skilled at undermining our electronic devices. Nonetheless, there are laws and guidelines that regulate this technology. Specifically, with the implementation of 45 C.F.R. §164.312(e)(1), was a requirement to “mplement technical security measures to guard against unauthorized access to electronic protected health information that is being transmitted over an electronic communications network.” These precautions have been in existence since the rise of electronic communication as it relates to medical information, however, with the sophistication of online hackers as well as technology in general, patients, doctors, and hospitals are at risk when they take part in this wide technological network. More specifically, with the use of cell phones and tablets, doctors and patients may both be rendering themselves vulnerable to the distribution of private health information. Further, the use of these electronics may be risky in a less technical sense in that if a physician or patient’s phone or tablet is misplaced or even stolen, a wide variety of personal information may be placed in the hands of the wrong person. Accordingly, it is as important as ever to take all measures necessary to keep this information private when utilizing the newest form of technology, especially in light of the ongoing security breaches in various institutions across the United States.

In 1872, Victoria Woodhull ran for President; she was the first woman in the United States to run, and her party was called the Equal Rights Party. She couldn’t even vote for herself, however, since it was nearly 50 years before the 19 th Amendment to the Constitution gave women the right to vote. Not only was she the first woman to run, but her running mate, Frederick Douglass, was the first African-American ever nominated for vice president. Victoria Woodhull was a colorful and convention-defying woman. She was born in Homer, Ohio is 1838, and was an activist for women’s rights and labor reform. She also advocated “free love,” by which she meant the freedom to marry, divorce, and bear children without government interference; these freedoms for women were radical concepts during her time. She rallied against the hypocrisy of society’s tolerance for men who had mistresses. Woodhull made her first fortune as a traveling healer and clairvoyant. When she was young, her father put her and her sister, Tennessee, to work telling fortunes, contacting spirits, selling life elixirs, and offering cures for diseases ranging from cancer to asthma. She claimed to have made a small fortune with this business during the Civil War, but there were setbacks. For example, her sister/business partner was indicted for manslaughter in Illinois after one of her cancer patients died. The sisters moved to New York City, where they met railroad baron Cornelius Vanderbilt and worked as personal clairvoyants and healers for him. They also got stock tips from Vanderbilt, from which they profited well during a gold panic in 1869. With the financial backing of Vanderbilt, Woodhull and her sister became the first female stockbrokers on Wall Street, operating their own brokerage firm. They never gained a seat on the New York Stock Exchange, though, something that no woman would achieve until 1967. The sisters also began to publish their own newspaper. In April 1870, Woodhull announced her candidacy for president, campaigning on a platform of women’s suffrage, regulation of monopolies, an eight-hour work day, and welfare for the poor, among other things. She was nominated at the Equal Rights Party’s May 1872 convention. Although the party also nominated famed abolitionist Frederick Douglass as her running mate, he himself never acknowledged the nomination. Ulysses Grant won the 1872 presidential election, serving his second term. Woodhull returned full-time to her advocacy, and following the election, she published an article in her newspaper aimed at exposing the popular preacher, Henry Ward Beecher, as an adulterous hypocrite. Beecher had condemned Woodhull’s free love philosophy in his sermons, which infuriated Woodhull, especially given his extramarital affair with a married woman. Beecher had many supporters, and the backlash was immediate. Beecher’s supporters helped the authorities secure information to issue arrest warrants for Woodhull and her sister on charges of sending obscene material through the mail. The “obscene material” was the exposure of the affair in her newspaper. Woodhull ultimately was acquitted, although she remained in jail for about a month. Eventually, Woodhull moved to England, where she met and married her third husband. In England, she became a champion for educational reform. She died at the age of 88, in 1927.

God first announced His plan for sending a savior in the garden of Eden. When Adam sinned, God promised to send someone to “crush” the wily serpent and to provide a final remedy for sin. Again and again the prophets repeated this promise.  But the savior would not come as a conquering hero. No, the prophets said he would come as a suffering sin-bearer who would willingly lay down his life. When Jesus arrived on the scene, the crowds saw a teacher, a healer, and a miracle worker. But Jesus fully understood His mission. He knew that His life was on a divine trajectory that would lead Him to the cross. “I lay down my life,” He said, “so that I may take it up again.” To make the point perfectly clear, He added: “No one takes it from me, but I lay it down on my own.” The old hymn reminds us that as He hung on the cross “He could have called ten thousand angels.” Jesus, the Son of God, had every heavenly resource at His command. But He was determined to fulfill His life’s purpose.  So He endured the scourging, the beatings, the humiliation and, yes, even the cross. He did it all willingly. He did it with a faithful and obedient heart. He did it with you and me in mind. It wasn’t nails that held Jesus to the cross. It was love!

Over the years a debate has ensued between Fleet Owners about the necessity to install inward and outward facing cameras on all commercial tractor trailers. Safety directors have become proponents of installing these cameras, believing they are vital tools for commercial drivers going forward, outweighing any privacy or other concerns drivers and/or Fleet Owners may have. Over the last two years nationally recognized trucking companies have installed such cameras on their tractor trailers.  The belief is that truck drivers were getting blamed for accidents where they were not at fault. With that being said, the same argument holds true if the truck driver is at fault. These cameras ultimately serve as a silent witness because they tell an unbiased full and complete story as to how the accident happened. If injured in a trucking accident, it is vital for you to immediately contact an attorney who can prepare and send a preservation letter to the applicable commercial carrier so that any video footage is saved. The longer you wait, the greater likelihood the video footage is destroyed! Carriers have been known to record over unfavorable footage, or simply fail to save it without a preservation letter. These cameras, if present, can be your most valuable witness at trial. The cameras may show evidence of the truck driver’s negligent behavior, forcing the driver’s employer and/or applicable insurance carrier to take notice and effectively manage the risk in those situations. The camera provides an honest, up-front evaluation regarding exposure, and never lies! If you have any questions regarding this issue please call Bordas and Bordas and we will be happy to discuss.

March is Women’s History Month. We celebrate the lives of remarkable women, both the well-known and those whose stories have been largely forgotten. One such woman is Jo Ann Robinson, a largely unsung heroine who played a key role in the historic 1955 Montgomery Bus Boycott. Jo Ann Gibson Robinson was born on April 17, 1912, in Culloden, Georgia, the youngest of 12 children. She distinguished herself early as the valedictorian of her high school class, and she later became the first person in her family to graduate from college. She attended Fort Valley State College and fulfilled her dream of becoming a public school teacher in Macon, Georgia. She taught in Macon for five years while earning a master’s degree from Atlanta University. In addition, she pursued English studies at Columbia University in New York. After teaching in Texas, Robinson accepted a position at Alabama State College in Montgomery, Alabama. It was in Montgomery that she became active in the Women’s Political Council (“WPC”). WPC was a local civic organization for African American professional women that was dedicated to fostering women’s involvement in civic affairs, increasing voter registration in the city’s black community, and aiding women who were victims of sexual assault. In 1949, soon after arriving in Montgomery, Robinson was verbally attacked by a public city bus driver for sitting in the front “whites only” section of the bus. This event had a profound effect on her, and the following year, when she was elected president of WPC, Robinson made desegregating the city’s buses one of the organization’s top priorities. Her precise response was an attempt to start a protest boycott. The WPC repeatedly complained to Montgomery city leaders about unfair seating practices and abusive bus driver conduct, but their complaints went nowhere. Nonetheless, Robinson continued as an outspoken critic of the treatment of African-Americans on public transportation.  She also was active in the Dexter Avenue Baptist Church. Following Brown v. Board of Education (1954), and Rosa Parks’ arrest in December 1955 for refusing to give up her seat to a white person who was standing, Robinson and a few associates leaped into action. That same evening, with Mrs. Parks’ permission, Robinson stayed up copying over 50,000 handbills at her church, calling for a one-day bus boycott because of the treatment of Rosa Parks. The handbills were distributed around the city in black communities. The one-day boycott was a success, and for this reason, the campaign was continued, this time with the involvement of Dr. Martin Luther King Jr. In order to protect her position and her colleagues at Alabama State, Robinson purposely stayed out of the limelight, working diligently in the background organizing and providing transportation for boycotters. Robinson became the target of several acts of intimidation. In February 1956, a local police officer threw a stone through the window of her house. Two weeks later, another police officer poured acid on her car. Finally, the Governor ordered the state police to protect the boycott leaders. Although African Americans represented over 75 percent of Montgomery’s bus ridership, the city resisted complying with the protesters’ demands. The boycott lasted for over a year because the bus company simply would not give into the demands of the protesters. Initially, the demands did not include changing the segregation laws, rather, the group demanded simple courtesy, the hiring of black bus drives, and a first-come, first- seated policy, with whites entering and filling seats from the front and African Americans from the rear. Ultimately, however, the NAACP sued the city in federal district court seeking to have the busing segregation laws totally invalidated, and they succeeded. The boycott continued until December 20, 1956, when the U.S. Supreme Court declared segregated seating on buses unconstitutional. The Montgomery bus boycott was one of the first successful protests of segregation in the deep south, inspiring other nonviolent civil rights protests. It also established Dr. King as a prominent national figure. Robinson was especially proud of the role that women played in the boycott’s success, saying: “Women’s leadership was no less important to the development of the Montgomery Bus Boycott than was the male and minister-dominated leadership.” Not long after the boycott ended, Robinson resigned from her position at Alabama State College and moved on to Grambling College in Louisiana, and later to public schools in Los Angeles, California. Robinson published a memoir entitled The Montgomery Bus Boycott and the Woman Who Started It in 1987. In it, she expressed her great pride in the success of the boycott.  She remained actively involved in her community and in local politics until her death in Los Angeles on August 29, 1992.

With recent events returning the never-ending debate over “gun control” back to the headlines, it occurs to me that this would be a good opportunity to provide folks with a basic (and I mean very basic) primer on constitutional law and its application. Thus, I offer the following. For purposes of this article, I’m going to limit my discussion to rights conveyed by the various amendments to the United States Constitution. Those rights, such as freedom of speech, freedom of religion, the right to a trial by jury, and the right to keep and bear arms are familiar to pretty much everyone. What people don’t seem to understand, however, is that our Supreme Court has consistently held that even the most basic of our constitutional rights can be subject to regulation or restriction. “Pardon me”, you say? “You’re telling me that constitutional rights can be restricted?” The answer is a very clear yes, although the standards that apply in such situations are difficult to meet. Over the years, the U.S. Supreme Court has identified certain constitutional rights as “fundamental”. I won’t give you an exhaustive list of the rights that are within that group, but I can tell you that freedom of speech, the right of privacy, and the right to keep and bear arms all have been found to fit the definition of a fundamental right. In order to restrict such a right, the government has to demonstrate that it has a “compelling state interest” which the proposed restriction seeks to protect. For instance, in the case which legalized a woman’s right to obtain an abortion, the Supreme Court held that a woman’s right to privacy (a fundamental right) outweighed the claimed “state interest” in protecting the health of pregnant women in the first trimester of pregnancy. Similarly, the Court has also held that the compelling state interest in protecting children from exploitation outweighs the constitutionally-established right of freedom of speech. Thus, possessing or transmitting child pornography is illegal. Even the Second Amendment itself has been limited, in ways that very few folks would question. The amendment provides that the right “of the people” to keep and bear arms is protected. No exceptions appear to limit which “people” the framers of the Constitution had in mind when they crafted this amendment, yet many such limitations exist, apparently without a lot of debate. A convicted felon is not only prohibited from possessing a firearm; he is subject to arrest and imprisonment if he has one. A person who has been adjudged to be mentally ill is also prohibited from purchasing a firearm, as is a person who has been convicted of domestic violence. Where in the Second Amendment do those qualifications on a fundamental constitutional right appear? The answer is nowhere. They don’t exist, yet few of us question whether they are appropriate. The same can be said of fully automatic weapons. Nowhere in the Second Amendment do we find a limitation on the types of weapons that citizens are permitted to own, yet possession of such a weapon is illegal. In writing this article, I am certainly not trying to persuade the reader in one direction or another in terms of the gun control debate. I simply am trying to help people understand that even a right which appears in our Constitution is subject to regulation and restriction under the proper circumstances. If the government has a compelling interest it is seeking to protect, and the fundamental right the government seeks to restrict is fairly and narrowly regulated by the law in question, the restrictive law may be upheld by the courts. The question is not simply whether or not a constitutional right exists; the proper question is whether or not the state has a sufficiently compelling interest to justify restriction of that fundamental constitutional right. A very, very basic explanation of an extremely complex area of the law. I hope you find it to be informative, if not useful.

Gone are the days when wedding planning involved calling the best bakers in your family to put together that wedding cake or hiring your old friend from college to act as the DJ on your big night. In 2018, the wedding business industry is one of the fastest-growing businesses and if successful, can be a profitable way to make a living. With that being said, hiring a vendor for your wedding day, whether it be a photographer, caterer, etc., comes with more obligations than may meet the eye. First, your vendor will likely have a contract for you to read that can list many details such as how much they charge for their services, when those invoices must be paid, and many other particularities that one may overlook in all the excitement of the wedding planning process. Some vendors may require that they be used for a certain amount of time, others may provide that in the event of bad weather or some other unexpected circumstance, that they may cancel the contract at the last minute. These are all details that may seem insignificant months from the big day, but as with all things of importance, it’s always a great idea to take your time and read through the details. Although signing a contract to hire someone to work with you on your wedding day such as a hairdresser or a photobooth operator may not seem like a big deal – it’s important to know what your obligations and rights are under any contract you sign. If you don’t understand a provision or you are uncertain that it applies to you – ask your vendor to explain so there are no unexpected surprises. Happy planning!