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

In my last posts, I talked about how the law forces a medical-malpractice plaintiff to hire an expert who must then use a series of magic words to identify the key facts supporting her opinion.  Having done so, what happens next?  In any complex case, there will be thousands and thousands of individual facts.  Hundreds of lab results.  Hours of testimony.  Dozens and dozens of pages of nurses’ notes.  All of them potentially important to the jury that will have to decide the case. Generally speaking, the rules of evidence allow the admissibility of any evidence that is relevant.  The rules state that “Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.”  Given that juries decide the facts of the case, this is obviously meant to be a rule for them.  Relevant to who?  Relevant to the jury, of course. What happens in a malpractice case, though?  The defense attorneys know that the law requires the plaintiff’s expert to say exactly what the deviations from the standard of care were and to describe exactly how those deviations from the standard of care caused harm.  In advance of trial, the defense attorneys will ordinarily file a motion to exclude any fact they don’t like if that fact was not exactly and precisely relied upon by the plaintiff’s expert.  We’ve translated the rule from “Relevant to the Jury” to “Relevant to the Experts.”  Any fact not relevant to the experts, who speak, act, and think like the doctors they are, is in danger of being shielded from the jury who might have a different notion of what’s important or relevant. In most other cases, we trust the jury with all the relevant evidence.  If an expert will assist the jury in explaining or understanding those facts, so be it, but the jury gets the facts and they make up their own minds about what is important and what is not.  In medical malpractice cases, however, we run a real danger of turning this entire fact-finding operation over to the experts in a way that was never intended under our system of justice. In a malpractice case against doctors other doctors try to decide what facts the jury gets to hear. That was never the intent of the rules. We are lucky in this area to have some of the best trial judges in the country.  We are also lucky to have hard-working and fair citizens who would decide cases the right way if we let them.  When it comes to malpractice cases, though, I wonder if we have taken the trust that we’ve justifiably placed in our judges and juries and turned it over to the experts.

In my prior posts, I argued that in medical negligence cases, the jury only gets to hear facts that have been pre-filtered by medical experts.  In this post, I’ll explain the mechanics of how that happens.  In a civil case, the plaintiff bears the burden of proof.  In a civil case, as opposed to a criminal case, the burden of proof is what’s known as the “preponderance of the evidence.”  It just means more likely true than not.  51% certain.  Another way to say that is “probably.”  In a civil case, the plaintiff wins if she can prove what probably happened.  In the same was medical malpractice law translates “carelessness” into “deviation from the standard of care,” the same law translates “probably” into a magic-sounding phrase known as a “reasonable degree of medical probability,” which supposedly means the same thing.  The complexities are now piling up on one another.  Properly understood, the jury should decide whether a doctor was probably careless.  Now, however, the jury is tasked with deciding “whether, to a reasonably degree of medical probability, the defendant physician deviated from the accepted standard of care.”  Those things are supposed to mean the same thing, but we can see how the phrasing makes things seem more complicated and, thus, harder to prove.  What’s worse, the law says that only an expert gets to decide things like “reasonable degree of medical probability” and “deviation” and “standard of care.”  The case will never even get to a jury unless the plaintiff’s expert speaks these magic words. That brings us to the deposition of the plaintiff’s expert witness.  As part of all medical negligence cases, the plaintiff has to disclose experts that will testify on his behalf.  The defense attorneys get to put that expert under oath and ask her detailed and, in many instances, confrontational questions about her opinions.  This expert is, in almost every case, an extraordinarily busy medical professional focused on her own patients.  What’s worse, she doesn’t speak the language required by the law.  Doctors do not walk around the halls of the hospital talking to each other about “reasonable degree of medical probability” and “deviation from the standard of care.”  However, they must now use that language in the deposition, at the risk of costing the plaintiff his entire case. Seasoned defense attorneys know this drill well:  The plaintiff’s attorney must be able to state, to a reasonable degree of medical probability, how the defendant deviated from the standard of care with absolute precision.   What exact test should have been ordered?  What precise lab value should have been recognized?  What exact medication, timing and dose, should have been administered?  But even that’s not enough.  Not only must the plaintiff’s expert be able to say exactly what the defendant did wrong, using all the magic language, the expert must be able to testify, again with the magic language, that these deviations caused the harm. If the defense attorney is lucky, the plaintiff’s expert will slip up.  She might use the dreaded word “maybe” or “possibly.”  One utterance of these words in any context could spell the end of the case.  Even if the defense attorney is unlucky, he should at least leave the deposition with the plaintiff’s expert committed to an exact narrative timeline where each step is contingent on the many steps before.  That is, the plaintiff’s expert will have been forced to comb through the chart identifying every single “deviation from the standard of care” and the exact facts that support that deviation.  She will have also been compelled to say exactly how, when, and why some different course of action would have led to a better outcome, to a reasonable degree of medical probability.  At the end of the deposition, there will be two kinds of facts: (1) Those that are absolutely central to the opinion of the plaintiff’s expert, assuming all the magic language was used and (2) Facts that are not absolutely central to the opinion of the plaintiff’s expert.  These facts in category 2 may be very important.  They may provide a great deal of context to what happened.  They may be just the kind of facts that the jury would want to know and that, in other cases, we would trust them with.  In my next post, I’ll talk about the next steps.

In my prior posts, I discussed the proper use of expert witnesses in civil cases. Experts are meant to be used only to help the jury understand complex issues.  They were never meant to be used as a substitute for the collective wisdom of the citizens who sit on our juries. Do experts still play that helper role in medical negligence cases? Again, because the law is similar in most states, I will use West Virginia as an example.  According to West Virginia law, a doctor is responsible for any injuries caused by his or her negligence. The negligence standard is the same one we use to determine most civil cases involving an injury. It simply means a lack of due care.  Negligent drivers can be held responsible for the injuries they cause and the same should be true of physicians. However, things quickly get more complicated. In a medical negligence case, it’s not enough to simply say “carelessness,” which is a word that everybody understands and can use.  We all know what it means to be careful and we all know what it means to be careless. We could trust a jury made up of people from all walks of life with that decision. However, in medical negligence cases, “carelessness” gets translated and defined to mean a “deviation from the standard of care,” which is technical jargon supposed to mean the same thing. As the law attempts to explain to us, juries that ordinarily and effectively make determinations about “carelessness” simply cannot be trusted to determine what the “standard of care” means. So the law vests that determination exclusively to expert witnesses. That is, the case can only proceed if an expert says what the standard of care is and describes exactly how the defendant deviated from that standard.  I have no problem accepting the obvious fact that in many scenarios, ordinary citizens would have difficulty understanding what is supposed to happen in a complex surgical procedure, just as those same jurors might have a hard time understanding complex mechanical engineering issues or the types of fire science issues that come up in explosion cases. For that reason, I have no problem if experts come in to help the jury understand those issues, as the rules are designed. In malpractice cases, however, the law requires experts to do far more than simply help. The medical expert can’t simply help. He or she must establish with an exactitude that is often very challenging exactly what was supposed to happen and why it didn’t. This is no longer just help. It’s the replacement of the jury with experts. To be sure, the jury still exists, but it no longer filters through the facts itself with the possible assistance of experts.  Instead, one expert tells the jury her version of pre-filtered facts and another expert tells the jury his version of pre-filtered facts. The jury is left to determine which version of pre-filtered facts seems more correct, but the filtering has already been done.

In my prior posts on this subject, I discussed how the law requires a citizen to get the permission of a doctor before suing one and how those laws begin the process of allowing doctors to control what facts a jury gets to hear. The next step in the case requires some explanation of what expert witnesses are and how they are supposed to be used in court cases. As defined by the Federal Rules of Evidence and most state counterparts, an expert witness is simply “ witness who is qualified as an expert by knowledge, skill, experience, training, or education” who “may testify in the form of an opinion or otherwise if . . . the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.” I’ve highlighted the last part of that because it is critically important in understanding the point I wish to make about the use of expert witnesses in malpractice cases. Expert witnesses were only ever meant to help the jury understand the evidence. They were only ever meant to help the jury determine a fact. That is, the jury receives all of the relevant facts and determines for itself what facts are important and uses those important facts to determine what happened. If expert witnesses can help the jury do that job, great. But that’s all it was ever supposed to be. The jury was the fact-finder and its members used their own judgment to determine what was important and what was not. If experts were used at all, it was only to help (assist) the jury with its job. They jury was the primary fact-finder. Experts were secondary helpers, at most. Let’s take a look at what has happened in medical negligence cases. Are experts still playing the helper role they were designed to play or has their role expanded far beyond that?

In the first part of my series of posts on the subject of expert witnesses in medical malpractice case, I talked about the dangers of allowing so-called experts to interfere with the jury’s fact-finding role.  Juries are supposed to hear all of the relevant facts and make their decisions based on the facts that they believe are important, with as little interference as possible from outside influences.  We can and should trust our fellow citizens with this important task.  However, getting those facts to our community-representatives on the jury is a challenging task in a medical negligence case. Let’s start right at the beginning. You don’t need a truck driver’s permission to sue a truck driver. You don’t need a stockbroker’s permission to sue a stockbroker. In the vast majority of cases, you don’t need the permission of somebody like the defendant to file a lawsuit.  In medical negligence cases, that is simply not true. In order to even file a case against a doctor you first need the permission of a doctor just like the defendant. Because similar provisions exist in Pennsylvania and Ohio, I’ll use West Virginia as an example. When a West Virginia family has been victimized by the misconduct of a doctor, they often do not and cannot know all of the details of what happened because those details are controlled, to a large extent, by the doctors and the hospital that caused the harm in the first place. These families weren’t scrubbed in for the surgery that caused their loved-one’s death. The only thing they know about what happened during that surgery is what the doctors told them. Of course, one of the first steps in the case is to collect all of the medical records. Again, however, the facts that are contained in those records and the spin put on those facts are all controlled by the doctors and the hospital. Obviously, the family is already at a significant disadvantage. The key facts of the case have already been written by the people who caused the harm. Beyond that, this family will now need the permission of somebody just like the defendant before they can even file suit. West Virginia Code §55-7B-6 relates to all medical negligence cases in West Virginia. It states that before ordinary citizens of West Virginia can even file a lawsuit, they need permission to do so from somebody just like the defendant. If a West Virginia citizen is killed by the malpractice of a vascular surgeon, that citizen will need the permission of a vascular surgeon to even file a case, in most instances. More than that, the expert has to state exactly what happened and how that conduct caused harm. The expert’s opinion has to be based on the records, and the expert has to specifically identify the records that he or she has reviewed. Now, there are many well-qualified experts out there willing to speak up for families who have been hurt, but they are still doctors who see things like doctors do. The problem is clear. Before a case even starts, facts written by the defendant have now been filtered through a doctor with the same job. Ordinary citizens are supposed to have the right to seek justice in the courts that they pay for.  In malpractice cases, that right is subject to the blessing of doctors. Through this mechanism, the scope of what the jury gets to hear has already narrowed. It gets worse, as I’ll discuss in my next post on the subject.

One of the remarkable features of the American system of justice is the use of juries in civil cases.  The jury, comprised of members of the community to speak on its behalf, ultimately decides the facts of the case and renders a verdict. We rightly trust our fellow citizens with this important task.  The use of a jury in civil cases should stand as a rejection of trial by elites – people who think they know better than so-called average citizens.  It also stands as a rejection of the tempting idea that defendants should be tried to a jury of their peers, narrowly defined.  When a trucking company causes a wreck by overworking its drivers, would we want that case tried to a jury comprised exclusively of trucking company executives?  Of course not.  When a corporation understaffs its nursing home and the residents suffer as a result, do we think it makes sense for that jury to be comprised exclusively of nursing home executives?  Of course not.  Along similar lines, we would not want a medical negligence case against a doctor tried exclusively to a jury of doctors, so our system of civil justice is set up to ensure that malpractices cases are tried to a jury made up of members of the community, just like other cases. Of course, the companies that provide malpractice insurance to doctors and hospitals know this all too well.  They know they can’t get a jury made up of doctors and hospital executives.  But what’s the next best thing?  What if there was a way to make sure that the jury only got to hear certain facts?  What if there was a way to set the system up so that the jury only got to hear facts that the doctors thought were important, and no other facts that ordinary citizens might think were critically important?  What if there were a way to make sure that even those facts were filtered through a panel of so-called experts, who got to tell the jury not only what the facts of the case are, but why those facts are important?  If the system could be set up like that, there would be little room for the members of the jury to use their own collective wisdom and experience in deciding medical negligence cases.  Doctors would tell them what facts were important and the jury would never even get to hear any other facts.  They jury would not get to decide what facts were important and what facts were not.  Doctors would.  The jury would not even get to decide why or if certain facts were important.  Doctors would.  The jury’s sole function would be to pick between competing facts that were already pre-selected and filtered for them by members of the medical profession.  I would argue that this is not the way our system of justice is supposed to work, but it is exactly what has happened to a large extent in medical negligence cases.  I’ll discuss the beginnings of this problem in the next post in this series.

When you experience a situation where you realize that you may need legal help, it can seem overwhelming at first. You may be injured or sick, you may have just lost a job, or even worse, a loved one. There might be calls to make to insurance companies, medical bills piling up, a vehicle out of commission, and many other things you must deal with that seem confusing or intimidating. Contacting an attorney to discuss your potential legal situation may seem like another scary task about which you are just not certain of what to do. This doesn’t need to be the case, and there are different ways to reach out to an attorney to get an evaluation of your potential case and learn about your legal options. Telephone calls One of the most common ways to reach an attorney and discuss a potential legal claim is to pick up the phone and call the attorneys’ office. Firms will typically make their telephone number readily available through print advertising, TV and radio commercials, and their website. Once you call in, you can explain to the person who answers the phone that you would like to speak to a lawyer about a potential legal situation, or can even just say that you were in a car wreck, lost your job, or had a bad medical experience, and want to talk to a lawyer. Once you have been put in touch with a lawyer, they will go through your situation in more detail to determine what your legal options are. Telephone calls to an attorney are a fast and direct way to discuss the situation, however, if you call after business hours, it may be more difficult to speak to someone right away. Phone calls can also be overwhelming for some people, particularly when it requires them to discuss something sensitive or stressful. If that is the case, there are some other options to reach out initially to an attorney. Website inquiries Another direct way to contact a lawyer’s office about a legal claim is to submit some information through their website. This is beneficial for a lot of people who might not be able to initially call a lawyer’s office during business hours, and can also reduce some of the stress of having to speak to someone on the phone and answer questions about a difficult situation right off the bat. Oftentimes, the website will have a chat function that allows you to message with an intake representative to provide some information about your situation, after which, you will be put in touch with an attorney who can call or email you to discuss the situation in more depth. This is a good option for reaching out to an attorney at any time of day and for people who may not be quite ready to get into a full conversation about their situation. Social media Many lawyers’ offices have social media pages, such as Facebook and Twitter, where they can interact with new clients and make arrangements to discuss potential legal claims. You can send direct messages to the account through their pages, and explain that you are looking to speak to a lawyer. This can be a good option if you do not have access to a computer but can access the social media accounts through apps on your phone. You can contact the attorneys at Bordas & Bordas to discuss potential legal claims through any of these channels. Our attorneys and staff members will make sure that you are promptly directed to the appropriate person to speak to about your situation, and you will receive timely responses to any calls, messages, or submissions through our website. While contacting a lawyer can be an unfamiliar thing to do, we are happy to help make the process as easy on you as possible.

In May, a New York state jury ordered Johnson & Johnson (J & J) to pay $300 million in punitive damages to a long-time user or J & J’s talcum powder products who contracted mesothelioma – a deadly cancer most typically seen among asbestos-exposed tradesman. This punitive damage verdict comes on the heels of the jury’s $25 million compensatory damages verdict rendered a few weeks earlier. Verdicts in this range have previously been reached in cases involving ovarian cancer victims that used J & J talc products, but this verdict is believed to be the first of its size in a case involving mesothelioma. Mesothelioma is an aggressive cancer that affects the lining of the lungs, heart, abdomen and other internal organs. Mesothelioma is caused by exposure to asbestos fibers, is often diagnosed in older individuals who worked with or around asbestos products years or even decades earlier. Tragically, family members of such individuals are also susceptible to contracting mesothelioma from exposure to asbestos fibers carried into their homes by exposed workers who share the home. As with prior J & J talc cases involving ovarian cancer, the size of this verdict appears to have been driven by J & J’s internal documents, which “ bare the shocking truth of decades of cover-up, deception and concealment by J&J of the asbestos found in talc baby powder.” As with its other prior talc losses, J & J intends to appeal this verdict. Currently J & J faces more than 13,000 talc related lawsuits. While this New York case represents a substantial blow to J & J’s defense, the ultimate disposition of talcum powder/mesothelioma litigation remains to be determined. J & J has won several cases involving claims of mesothelioma from talcum power. In fact, a South Carolina jury cleared J & J of liability in a mesothelioma case the same day the New York jury delivered its verdict. Nevertheless, the overall picture developing remains deeply problematic for J & J, as jury after jury sees the evidence of J & J’s decades-long cover up over the inherent dangers of its talc products, mined from talc seams that are also contaminated with asbestos. Massive verdicts have been awarded to victims whom J & J marketed its talc products as being completely safe. If you believe that you have contracted ovarian cancer or mesothelioma from exposure to talcum powder products, you should contact an experienced law firm right away to explore the possibility of a claim.

In my last blog I covered how to support a claim for lost earnings when you are self-employed. Today I would like to cover the law that will support how you can make a claim for future lost earnings for more than what you have made in the past. In Lewis v. Pruitt, 487 A.2d 16, 21 (Pa. Super. Ct. 1985), the Superior Court stated the test for “impaired earning capacity” as being “whether the economic horizon of the disabled person has been shortened because of the injuries sustained as a result of the tortfeasor’s negligence.”  (Citing Bochar v. J.B. Martin Motors, 97 A.2d 813 (Pa. Super. Ct. 1953); Janson v. Hughes, 455 A.2d 670 (Pa. Super. Ct. 1982).) In Lewis, the plaintiff was employed at a dress manufacturing plant at the time of her accident. However, she had graduated from the Empire Beauty School in York, Pa. and was licensed as a beautician. She had previously maintained her own shop with equipment in her home, working thirty to forty hours a week for eleven years. Id. at 20.  Plaintiff had continued to do beauty work for friends and family, while employed at the dress manufacturing plant, “and had even discussed reopening a beauty shop with two of her fellow workers.” Id. at 20.  Defendant argued that the plaintiff needed to evidence a “definite plan to return to work in a given occupation” in order for it to be permissible to introduce evidence to demonstrate a loss of earning capacity in that field. Id. at 21.  The court rejected this argument. Id.  Instead, the court held, “Where, as here, the plaintiff has maintained her skills…continued to practice in her trade albeit on a part-time basis and engaged in discussions pointing towards a return to that occupation, we hold that it was not an abuse of discretion for the trial judge to submit this evidence to the jury on the issue of impairment of earning capacity.” Id.  In fact, the plaintiff in Lewis even “introduced evidence of the probable compensation available to her were she to resume full-time work as of the time of trial.” Lewis shows that a plaintiff need not even be practicing in a given trade at the time of the injury in order to submit to the jury evidence of future lost earnings in that trade.  As such, if you may not have been earning much in the job at the time of the incident because of your choice to be self-employed or have a job in a field that will not allow you to make as much as in another field, if you could make more money in the future by working for someone else or in a second trade you are skilled in, is relevant as to what you could earn based on your skills and experience; regardless of whether you had a “definite intent” to do so.  Thus, if it was permissible for the plaintiff in Lewis to introduce evidence of “probable compensation” were she was to return to a trade she did not actively practice, it should be permissible for you to introduce evidence of probable compensation if you were to practice your trade in a different way (i.e., through transitioning from self-employment to employment for someone else or in the second trade you are skilled in). Restatement (Second) of Torts § 924 cmt. d states, in regard to lost future earnings, “The extent of future harm to the earning capacity of the injured person is measured by the difference, viewed as of the time of trial, between the value of the plaintiff's services as they will be in view of the harm and as they would have been had there been no harm.”  Accordingly, “the trier of fact must ascertain, as nearly as can be done in advance, the difference between the earnings that the plaintiff probably would or could have received during his life expectancy but for the harm and the earnings that he will probably be able to receive during the period of his life expectancy as now determined.” Id. (emphasis added).  The use of the phrase “could have received” suggests that future earnings can be measured not just with reference to what a plaintiff would have earned, with mathematical precision or certainty, but also to what a plaintiff could earn, taking into account relevant factors such as “the type of work that the plaintiff has done and the type of work that, in view of his physical condition, education, experience and age, he would have been doing and will be likely to do in the future during the working period of his life.” Id. § 924 cmt. d was cited approvingly by the Pennsylvania Superior Court in Pratt v. Stein, 444 A.2d 674, 696 n.36 (Pa. Super. Ct. 1982).  In Pratt, appellants argued, inter alia, that “the trial judge erred in charging the jury that an award for loss of future earnings represents the amount which appellee ‘would have or could have earned during his life expectancy but for the injuries that he sustained in this case.’” Id. (Emphasis in original.) Citing the Restatement (Second) § 924, the Superior Court stated that this approach “is axiomatic,” and that the trial court’s charge aligned precisely with the Restatement; therefore, there was no error. Id. Restatement (Second) § 924 cmt. d. and Pratt support calculation of a future lost earnings based not just on what one would have earned through self-employment, but also on what could have earned in other employment, but for injury. In Gillingham v. Consol Energy, Inc., 51 A.3d 841, 864 (Pa. Super. Ct. 2012), the Superior Court stated that a future earnings calculation “requires a reasonable basis to support such an award…Furthermore, to ensure that a plaintiff is fully compensated for loss future earnings , projected increases in productivity must be taken into account… by factors that include age, maturity, education, skill, and technology advances” (citing Helpin v. Trustees of University of Pennsylvania, 969 A.2d 601 (Pa. Super. Ct. 2009)).  Moreover, a plaintiff need not have expert testimony to show loss of earning capacity; rather, a plaintiff can rely on his own testimony. Gillingham, 51 A.3d at 866.  In Gillingham —which was a case of consolidated appeals made by Consol Energy, Inc. against rulings made at the trial level in favor of appellees the Gillinghams and the Deckers, id. at 847. The Superior Court affirmed the trial court’s award of future lost earnings and future earning capacity as to both appellees.  The case of Mr. Decker is elucidating, as the court held that Decker could be awarded damages for future lost earnings and future lost earning capacity which exceeded what he was currently making with his employer at the time of the accident. Regarding Mr. Decker, the tortfeasor, Consol, challenged “the evidence lost future earnings to whether he would have earned commissions .” Id. at 864.  Consol alleged that the lost future earnings were “based on speculation.” Id.  Decker, at the time of the accident, had been earning no commission, for the two years he was with his current employer, Pump Action; and he was earning $100,000 per year, though he had been earning $125,000 with a prior employer. Id.  Decker anticipated that his salary at his current employer would have continued to increase to $125,000 (while he was only earning $60,000 - $80,000 per year post-accident). Decker v. Consol Energy, Inc., 2011 Pa. D. & C. LEXIS 167 at *27 (Pa. D. & C. 2011).  The jury awarded Decker $528,000, or $44,000 per year ($125,000 - $81,000), in lost wages, and $15,000 per year in lost commission for 12 remaining work years, which totaled $708,000. Id. at *24. In holding that the evidence supported the jury’s determination as to Mr. Decker’s future ability to earn commission, the court noted that “Mr. Decker had twenty-seven years’ experience in… a vast amount of skill in the field.  Additionally he had many contacts in the pertinent industry from working at .  He stated that he planned to work until age seventy because he did not have much in retirement savings.  There was nothing speculative or uncertain about the proof offered, and the jury verdict was within the range of that established by the evidence.” Gillingham, 51 A.3d at 865. As in Gillingham, an injured person may expect to earn more in the future based on increases in productivity.  In Gillingham, Mr. Decker anticipated using his skills and contacts in the future to receive more commission than he had received in his employment prior to the accident. Thus, there are numerous examples of which somebody could actually recover more money than they had in the past. Examples would be a recent college grad, a resident becoming a doctor, a person who was making less money being self-employed then he could had he worked for somebody else, and a person who just recently changed jobs. In short, there are various arguments, if the facts support it, to actually recover more money than they had earned in the past. It is important to understand, one is not always limited by their past earnings.

I was honored to be a part of organizing the Law Day 2019 luncheon in St. Clairsville, Ohio.  Juvenile Court Judge Al Davies was this year’s guest speaker. Like West Virginia, Ohio has been rocked by the opioid crisis.  Not surprisingly, this means  drug use among children has been on the rise.  But Judge Davies shed a ray of light on this otherwise dark picture. Most juvenile courts have a series of drug and alcohol programs as well as sentencing options that incorporate treatment and counseling. The drawback to these programs is that they deal with the issue of addiction after the fact.  But what about before the onset of addiction?  Is there any way to reach youngsters before they’ve been pulled into a culture of drug and alcohol abuse and end up in juvenile court? In 2016, the juvenile court in Belmont County, Ohio, partnered with schools, law enforcement, and volunteers throughout the county to establish the “Belmont County Schools Staying Clean” program.  Students can sign up at the beginning of each school year.  Being a part of this volunteer program provides students and their families with education, resources and mutual support.  It also gives students a way to confront peer pressure—citing their membership in the program gives them a real and meaningful way to say “no” to those who would invite them to experiment with illegal drugs. There’s plenty of fun for the kids.  Throughout the year, students are invited to a variety of sponsored activities and events.  But there’s a serious side too.  Random drug tests are performed throughout the school year.  The results are kept confidential and are not released to juvenile court officials or to the schools.  However, any positive test results are released directly to the student’s parents.  The idea is to promote family involvement as a way of dealing with drug issues as early and effectively as possible. The statistics Judge Davies shared are very encouraging.  At this point the “Belmont County Schools Staying Clean” program is up and running in eight middle schools and high schools throughout Belmont County.  Membership in the first year reached 700.  By the next year, the number of students participating in the program had nearly doubled—i.e., 1,313.  And membership continues to climb.  This year’s membership topped 1,500.  There’s also an educational program for fourth graders called “Too Cool For Drugs” that tries to reach students before they enter middle school. And the results?  As membership in these programs has increased, there has been a corresponding decrease in drug court numbers.   Reaching kids where they are, and engaging their schools, families, and communities in the effort, is working.  And that’s good news for our kids. The success of this program should be an encouragement to other communities.  Yes, the standard drug and alcohol programs used by juvenile courts are a help in combatting drug use among our children.  But what’s even more effective is when the court system joins hands with other interested organizations and volunteers to proactively reach into the schools.  I hope other communities will see what the juvenile court has done in Belmont County and follow its example.  Our kids deserve it! For more information, go to www.belmontcountyjuvenilecourt.com/programs.

Texting has become a standard part of today’s communication. In addition to the text communications that we exchange with friends, family members, and colleagues, we also receive text messages from doctor’s offices, hair salons, pharmacies, restaurants, delivery services, and other businesses to make and confirm reservations and appointments, relay that orders are ready, or provide other information to help facilitate things in our busy lives. Because texting is so common, many clients may want to use it as a way to communicate with their attorney during the course of a lawsuit. While texting with your attorney can be a quick and easy way to share information, there are important considerations to take into account when texting with an attorney, and in many circumstances, texting may not be the appropriate method of communicating with your lawyer. The most important consideration when communicating with your attorney in any manner, including text message, is that the attorney-client privilege remain protected. This means that the communications between you and your attorney need to stay between you and your attorney. As a general rule other people should not be able to participate, listen, or read what you and your lawyer discuss, otherwise the attorney-client privilege may be deemed waived and these communications may be subject to disclosure to the other side in your lawsuit. Texting can pose some significant risks to protecting the confidentiality of communications with your lawyer. Depending on privacy settings on your cell phone, the texts may be visible on the home screen for anyone to see as they are delivered to your phone, or someone may be able to simply pick up your phone and read through all of your text messages, including with your lawyer. Texts can also be harder for your lawyer to document in their file than emails, which are usually linked to a server and able to be saved in their original format, or hard copy communications such as letters, which are copied and filed when the letter is drafted and sent. Text messages can also be difficult for communicating complicated or in-depth information, and are not ideal for conversations where you may have a lot of questions for your lawyer and they will need to give you answers with lengthy explanations. In short, while it may be convenient and not pose problems to text your attorney for some basic communications, such as to confirm the time of a meeting, or the location of a deposition, keep in mind that text messages with your attorney should be exchanged with some caution and are often not ideal for discussions about your case. Emails and telephone calls are a more secure and practical way to effectively communicate with your lawyer in a way that ensures confidentiality and the attorney-client privilege are maintained.

I would like to extend a big thank you to the Washington Wild Things for a great night of baseball. Last Friday was “Friday Night Lights Presented by Bordas & Bordas” at Wild Things Park. It was a fantastic night of baseball. I would like to extend particular thanks to Stu Williams and his whole family for hosting us and making us feel welcome. The weather was perfect. The stands were filled with families enjoying the game. Mascots were everywhere, including Justice the Legal Beagle, Spike of the Wheeling Nailers, and, of course, the Wild Thing itself! The food was fantastic and the fireworks after the game are some of the best around. Over the years, I’ve taken my family to dozens of Wild Things games and we’ve always had a great time. Minor league baseball is a great way to experience the game. There’s no traffic. The ticket prices and concessions are very reasonable, and you can get your kids right down by the action. Of course, I don’t mind admitting my biases when it comes to minor league baseball. In fact, when I’m traveling for my cases, I try to make a point of stopping by to check out the local team. Many of our experts and witnesses come from different cities and towns around the country. When I have witnesses in Columbus, Ohio, I’ll try to catch a few innings of the Columbus Clippers in their beautiful downtown ballpark. I’ve worked with an excellent medical billing expert in Ashville, North Carolina, home of the Ashville Tourists. One of my favorite clients lives just a few miles down the road from the Hagerstown Suns in Hagerstown, Maryland.  Anytime I’m in Charleston, WV for work, I’ll stop in to visit the West Virginia Power. I have a worksite safety expert who lives in Toledo, Ohio, the home of the Toledo Mud Hens. After taking the deposition of a defense expert witness at Duke Medical Center, I watched it rain on the field of the Durham Bulls. Checking out these teams, even if it’s just for a few innings and a hot dog, provides a break from stresses of travel and helps me focus on the work I’m doing for my clients. So, I can speak from experience when I say that the Wild Things, their team, their staff, and their stadium rank right up there when it comes to providing a great baseball experience. Stop by and visit the next time they are in town.