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News
John Wolff participates in pilot mentoring program
The Louisiana Supreme Court implemented the Transition Into Practice (“TIP”) mentoring program this past year. Keogh Cox partner, John Wolff, along with first-year attorney, Elisa Stephens Randall, were the first to complete the program.
The pilot TIP program began during January, 2015. According to the Louisiana State Bar, “[t]he program will match one mentor with one mentee, allowing more experienced attorneys to share their knowledge with those who are just starting their careers. The Bar and the Louisiana Supreme Court see this as an opportunity to exercise the highest level of professionalism.” TIP will initially be available in Baton Rouge, Shreveport, and the greater New Orleans area.
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Insight
Trees and Neighbors: A Growing Problem
Louisiana is a river delta state filled with fertile land and the refusal of its local fauna to stay within boundaries is a problem. Trees create hazards. They also bring nuisance in all its forms––pine sap drizzled over a new car, an oak branch casting a sun-blocking shadow over the perfect tanning spot, and on and on. If you own the tree, the problem is easy enough to address; but what if the tree belongs to your neighbor? Can you cut your neighbor’s tree?
While the Louisiana Civil Code provides guidance, it does not answer every question. Under the Civil Code, “a landowner has the right to demand that the branches or roots of a neighbor’s trees, bushes, or plants, that extend over or into his property be trimmed at the expense of the neighbor.” La. Civil Code Art. 688. Nevertheless, the right to "demand" that the problem be addressed is not a “license to cut;” and does not permit a landowner to cut without permission. Kahl v. Luster, 110 So.3d 1101 (La. App. 1 Cir. 12/28/12).In the event a neighbor is less than neighborly and refuses to trim back a trespassing branch, a landowner may bring an "injunction" against his neighbor. Such an action was involved in Scott v. Ramos, 399 So.2d 1266 (La. App. 4 Cir. 1981) where the defendant/neighbor's large oak tree extended over the plaintiff's property and deposited leaves and branches onto his roof and into his yard. In defense of the action, the defendant presented evidence that cutting the tree back to the property line would essentially kill the tree. Over these objections, the Louisiana Fourth Circuit Court of Appeal granted plaintiff a permanent injunction which required the defendant neighbor to “keep the tree, its limbs and branches cut” back to the property line. Further, the court ordered that defendant reimburse the plaintiff for the cost of removing leaves and fallen debris once a year.So, should your neighbor’s tree ever present a hazard or impede on the enjoyment of your property, there are means of relief. However, gassing up your chainsaw, without your neighbor’s permission, is not one of them.
Property
Louisiana
Resource
THEBAULT V. AMERICAN HOME ASSURANCE COMPANY, ET AL, 15-0800 (LA. APP. 4 CIR. 4/20/16)
INSURANCE: The loss of power following Hurricane Katrina created great hardship throughout the region. Shortly before landfall, the Touro infirmary in New Orleans secured an Aggreko “backup generator” that failed within hours of being put into service. The litigation in Thebault v. American Home Assurance Company, et al, 15-0800 (La. App. 4 Cir. 4/20/16), _____ So. 3d ______, 2016 WL 3353974 involved a claim that an infant was injured through exposure to excess heat at Touro.The Thebault suit was only one of forty-one suits filed related to the Touro power outage. In Thebault, Aggreko’s insurer, American Home alleged that a $50,000 “per occurrence” deductible applied separately to each plaintiff’s claim. American Home cited to a 1973 Louisiana Supreme Court decision and its progeny holding that, in exposure cases, the number of occurrences under a liability insurance policy is determined by the “effect” of the exposure rather than the “cause” of the individual plaintiff’s damages. In other words, each plaintiff damaged by the exposure counts as a separate occurrence, rather than a single occurrence that injured multiple plaintiffs. The trial court agreed and ruled for American Home on this issue.The Court of Appeal reversed, noting that the exposure line of cases involved damages caused by a series of events over a significant period of time, rather than the single, uninterrupted loss of power at Touro. The Court also distinguished the exposure line of cases on the ground that they interpreted “occurrence” policy language found in “limits of liability” clauses, rather than the American Home deductible endorsement which did not specify a separate deductible for each claim. The Thebault Court also noted that American Home’s argument, if accepted, would cause Aggreko’s “deductible responsibility” for the forty-one separate plaintiffs to be higher than the $2 million aggregate liability limit of the policy. According to the Court, such a result “would be an absurd and unintended result.”
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Insight
Can a Corporation Drive Drunk?: A Look at Employer Liability for Punitive Damages
The power to punish is generally the role of the criminal courts. Civil courts concern themselves with making a plaintiff "whole." In fact, it would be legal error for a civil court to impose recovery against a defendant as a form of punishment--with one notable exception. When "punitive damages" are allowed, a civil court may "punish" a defendant.
In Louisiana, punitive damages are only allowed when a statute specifically says they may be awarded. One of these statutes is La. Civil Code article 2315.4, which allows punitive damages when the plaintiff’s injuries were caused “by a defendant whose intoxication while operating a motor vehicle was a cause in fact of the resulting injuries.” Based upon the words used, punitive recovery for drunk driving would appear limited to recovery against the individual who was "operating a motor vehicle." However, what if the driver was intoxicated while “on the clock,” in the "course and scope" of his employment? Can his employer also be liable for punitive damages? Unfortunately, the answer to these questions is unclear and may vary depending upon where the case was filed.
The First and Third Circuits indicate that an employer should not be liable for these damages. In Darby v. Sentry Ins. Auto. Mut. Co., the First Circuit held that an employer could not be liable for punitive damages when its intoxicated employee was at fault for an accident, even when the employer was aware the employee had a history of alcohol abuse. The court reasoned that the principle of strict construction of punitive statutes prevented it from holding anyone other than the driver liable. 2007-0407 (La. App. 1 Cir. 3/23/07), 960 So. 2d 226, writ denied, 2007-0638 (La. 3/28/07), 953 So. 2d 59. Similarly, in Romero v. Clarendon Am. Ins. Co., the Third Circuit ruled that an employer could only be liable for the compensatory damages caused by its employee, to the exclusion of punitive damages. 2010-338 (La. App. 3 Cir. 12/29/10), 54 So. 3d 789, writ denied, 2011-0551 (La. 4/25/11), 62 So. 3d 96. A federal court decision from the Western District of Louisiana also supports this conclusion. See Lankford v. Nat'l Carriers Inc., 2015 WL 518736 (W.D. La. Feb. 6, 2015).
In contrast, the Fourth and Fifth Circuits have found that an employer can be liable for its intoxicated employee’s punitive damages. The Fourth Circuit, offering little commentary, found that an employer could be responsible for damages caused by its employee’s acts, including punitive damages under art. 2315.4. See Curtis v. Rome, 98-0966 (La. App. 4 Cir. 5/5/99), 735 So. 2d 822. Punitive damages were also awarded against an employer in a Fifth Circuit case, Levet v. Calais & Sons, Inc., 751 So.2d 153 (La. Ct. App. 1987). However, in Levet, the employer stipulated to liability and essentially agreed to be responsible for punitive damages.
While the Louisiana Supreme Court has not squarely addressed the issue, language from Berg v. Zummo tends to indicate that the employer may not be liable for drunk-driving punitive damages. In Berg, the Supreme Court examined art. 2315.4 to determine whether a bartender could be liable for providing an intoxicated driver with alcohol prior to the accident. In that context, the Court held that art. 2315.4 did not extend to someone who “contributed to” the intoxication because that Article “reflects the legislature’s intent to penalize only the intoxicated driver.” 2000-1699 (La. 4/25/01), 786 So. 2d 708, 718. However, the Berg Court specifically acknowledged lower court decisions that permitted such liability for employers, reserving its judgment on that issue for another day.
So, if someone asks you whether a corporation can drive drunk, the proper answer may be this: depends on who you ask.
Attorney
Collision
Resource
ILL PRACTICES/LEGAL ETHICS
"ILL PRACTICES"/LEGAL ETHICS"- Louisiana's procedural laws provide a mechanism to enter a "default judgment" against a party who chooses to ignore or refuses to respond to a suit, but a recent decision from the Third Circuit strongly indicates that this procedure is not properly suited for use against a party who believes they are under no pending obligation to answer a suit. It also demonstrates that an attorney's filing of an improper pleading can prove costly to the attorney.In Buster’s Frozen Custard v. Lancaster Manufacturing, 2015-947 (La. App. 3 Cir. 4/27/16), ______ So. 3d ______, 2016 WL 1660494, a defense attorney followed customary practices and called the plaintiff attorney to request an extension of time to file responsive pleadings. During the call, plaintiff’s counsel agreed to the extension and expressed interest in settlement. He then sent an email advising that a firm settlement demand would be provided once better estimates were obtained concerning the costs to remove the disputed equipment. Estimates were then forwarded a few days later along with a firm settlement demand, after which the attorneys engaged in settlement negotiations by phone and email.In one of the emails from plaintiff’s counsel, he expressed his desire to settle “without having to waste time in court proceedings.” That same day he took a preliminary default against the defendant. At the default confirmation hearing a month later, plaintiff’s counsel certified that there was no appearance by the defendant whether by answer to the suit, “enrollment of counsel, or otherwise.” The Court rendered a default judgment which the attorney recorded in the mortgage records.While the parties ultimately settled the underlying dispute, the defendant proceeded with a petition to annul the default judgment due to the plaintiff attorney’s “ill practices” as provided by La. C.C.P. Art. 2004. The Trial Court granted the annulment in view of the "ill practices," and further ordered the attorney to personally pay the defendant over $28,000 in attorney fees pursuant to La. C.C.P. Art. 863, which provides that an attorney’s signature to a pleading constitutes certification that the “pleading is not being presented for any improper purpose.” The Court found that the motion for preliminary default was certified for the improper purpose of obtaining a judgment against a party without notifying the party of the action, and the confirmation obtained without divulging to the judge ongoing negotiations and an informal extension of time for the defendant to answer. The Court of Appeal affirmed.
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Insight
Grounds for Appeal: Preparing for Round Two
Lawsuits begin in the trial court. For that reason, the immediate focus remains in the trial court where the case will be decided by the jury or the trial judge. However, once the judgment is entered or the verdict reached, the focus quickly shifts to the appeals court. In many cases, what happens in the trial court is just “round one” and cases are often truly decided on appeal. This post will help to identify the types of issues considered when there is an appeal.If you’ve received a negative ruling in the trial court, you are not out of options. State and federal trial court decisions are subject to review by a court of appeals. Generally, when an appellate court reviews a decision, it looks for two things: 1) legal error; or 2) an improper finding of fact. Your chance of success on appeal increases when there is a significant legal error because a reviewing court will give a de novo review of the issue. In other words, you get a brand new “trial” on the issue presented when it involves a legal issue and not merely an interpretation of the evidence offered at trial.The chance of success on appeal decreases when there are no significant legal questions to resolve. In this situation, the trial court’s findings of fact will be respected unless “manifest error” is found. However, other grounds for an appeal do exist including, but not limited to, refusal to admit relevant evidence, refusal to admit an expert’s testimony, providing improper jury instructions or, in some cases, judicial bias toward a party.It is also important to know that your right to seek appellate relief is not only available after a trial. When a party can show that the trial court has made an error which will cause prejudice if not corrected before trial or demonstrate that a reversal of the ruling would resolve the entire claim against that party, they can file a “writ application.” While similar to an appeal, a writ is a streamlined process. When the case presents a new or novel issue of law, the chances of having the appellate court consider the writ increases dramatically.The written brief--the appellate brief (for final judgments) and the writ application (for pre-trial rulings)–is the centerpiece of any request for appellate relief. It is critical that the brief be well-reasoned and persuasive. Appeals often involve oral argument, but, even then, the arguments typically center around issues addressed in the written briefs.When you are in the throes of the fight in the trial court, it is important to remember that another “round” may be coming. Keeping this focus helps to preserve and develop arguments and evidence that may be needed on appeal. Whether you won or lost in the trial court, know that the real fight may just be beginning.Reynolds LeBlanc is an Associate Attorney with Keogh Cox heavily involved in appellate practice. The attorneys at Keogh Cox have decades of combined experience representing clients in federal, state, and administrative appeals. The appeals practice by Keogh Cox attorneys has resulted in positive, landmark rulings in a variety of settings to include: the proper scope of who can administer interventional pain management (Spine Diagnostics Ctr. of Baton Rouge, Inc. v. Louisiana State Bd. of Nursing ex rel. Louisiana Dep't of Health & Hosps., 2007-0183 (La. 3/16/07), 952 So. 2d 702, handled by John P. Wolff III,Chad A. Sullivan and Nancy Brehm Gilbert); the extent to which employers will be protected by the immunity provided by worker’s compensation (Reeves v. Structural Pres. Sys., 98-1795 (La. 3/12/99), 731 So. 2d 208, handled by Gracella Gail Simmons and Collin J. LeBlanc); the establishment of mitigation defenses available to attorneys in legal malpractice claims (MB Indus., LLC v. CNA Ins. Co., 2011-0303 (La. 10/25/11), 74 So. 3d 1173, handled by Gracella Gail Simmons and Collin J. LeBlanc); and, the preservation of water rights under the Federal Powers Act (Simmons v. Sabine River Auth. of Louisiana, 134 S. Ct. 1876, 188 L. Ed. 2d 912 (2014), handled by John P. Wolff III and Nancy Brehm Gilbert), along with others.
Court of Appeals
Judicial Review
Legal Error
Trial Court
Verdict
Writ
Insight
Legal Malpractice: An Ounce of Prevention Can Save You Benjamins
Benjamin Franklin is famous for many things including his musing that “an ounce of prevention” is worth a “pound of cure.” While that truism applies to many aspects of life, it represents real-world reality when it comes to avoiding legal malpractice. When a few simple steps can avoid disaster, attorneys may want to spend a few “pennies” of their time and consider these steps.
“Meet or Beat” deadlines
Deadlines are not “suggestions” when it comes to law. Have in place a robust calendaring system and make sure your office is in compliance. This is one place where redundancy is not a bad thing.
Be smart
Remember that there are many good reasons not to take cases. The potential case may not involve an area of law with which you are familiar. You may not have adequate time or resources to properly devote to the case. Your history with the other parties or their counsel may not suggest the case as a good fit. Trust your instincts here. If you have meaningful reservations about taking the case, turn it down no matter how profitable it could prove to be.
Respect Your Clients
Do not ignore your client. Return your client’s phone calls. Keep the client informed. You work hard. Frequent communication with your client shows them that. They will be less likely to sue if they know you worked diligently on their behalf.
Document Your Work
More information is better than less. If you do not document your work, a client has cause to challenge the work you performed. Proper documentation also can diffuse the “he said, she said” trap attorneys often find themselves embroiled in after something has gone wrong.
Avoid Conflicts of Interest
Ensure that you have a comprehensive conflicts-check procedure. Failure to identify conflicts ahead of time can create unnecessary complexity. The rules allow waiver of many conflicts when they will not impact the representation.
Take Care of Yourself
Nothing can invite more disaster upon an attorney than substance abuse and/or debilitating stress. If either of these conditions apply to you, there are plenty of ways to get help-whether from friends, family members, or health care providers. You owe it to yourself, your family and your clients to address these issues. The Louisiana State Bar Association has created a Judges and Lawyers Assistance Program (JLAP) to help you through these issues. http://louisianajlap.com/
Thorough Research and Investigation
It’s not easy getting it right so spend the time it takes. Consult with others when you are not sure. Citing law that is no longer applicable is not only embarrassing but can affect your credibility. Judges remember lawyers who submit pleadings with improper or inadequate research.
Pursuing Unpaid Fees
Fully consider the ramifications when pursuing unpaid fees. Try to work it out. Clients have been known to find themselves suddenly dissatisfied with their representation when sued for an unpaid legal bill.
Benjamin Franklin is also known for his image plastered across the $100 bill. Putting in place reasonable procedures may keep more of them in your pocket.
Gracella Simmons’ practice includes defense of attorneys and law firms when professional liability claims are made and defense of attorneys in response to complaints made to the Office of Disciplinary Counsel.
Disciplinary Complaint
Legal Malpractice
Office of Disciplinary Counsel
Resource
TAXING COSTS AND EXPERT FEES
When is a "win" good enough win to give a successful plaintiff the right to have costs and expert expenses made a part of the judgment? That issue was recently addressed by the Louisiana First Circuit Court of Appeal in Clark C. Cenac, Jr. & Eileen C. Cenac v. Evangeline Business Par, LLC & National Building & Contracting, Co., Inc., 2015-CA-0198 (La. App. 1 Cir. 5/27/16). The case involved a dispute over a fence line and allegedly damaged trees. The plaintiffs won a partial victory, i.e. they were awarded damages for the destruction of their fence; however, they were not awarded damages for destruction of their trees. The trial court ruled that each party was to bear its own costs.
On appeal, plaintiffs argued that, because they won a money judgment and were the prevailing party, they should be awarded all costs and fees, including fees for the arborists' trial testimony. The appellate upheld the ruling of the trial court as the plaintiffs “failed to prove their case” that any trees on their property had been destroyed.
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Insight
Disciplinary Complaint
“Whether you want to admit it or not, the process has begun and the clock is already ticking.”
You've Got Mail (Just Not the Good Kind)You open your mail box. Flipping through the daily mail, you hope for a check and expect a few bills, but behind a glossy mailer and an annoying letter from opposing counsel, you find a certified letter--and it's from Office of Disciplinary Counsel. The letter advises that an ethics complaint has been filed against you. Whether you want to admit it or not, the process has begun and the clock is already ticking. This post explores what happens next.The Complaint- A complaint can be made by anyone and the mere fact of a complaint does not signify that it possesses merit. After a complaint is made, a screening process begins. At the point a letter finds its way into your mailbox, you will know that the ODC wants your side of the story. It is imperative that you respond and within the time delays allowed. Famously, Lincoln said that a lawyer who represents himself has “a fool for a client”-- you should strongly consider selecting counsel to represent you in the process.ODC Investigation- If a complaint is found to possess possible merit, the ODC will conduct an investigation. After the investigation, the ODC makes its recommendations from the following options:-Dismissal of the Complaint: A dismissal may be appealed;-Diversion: A diversion will allow the attorney to receive counseling, training, or assistance from the LSBA Practice Assistance and Improvements Committee in lieu of formal punishment;-Private Admonition: A private form of discipline used in cases of minor misconduct; or,-Formal Charges: The ODC must seek approval from a Hearing Committee chair to file formal charges.Formal Charges- If the ODC request for formal charges is approved, formal charges will be filed with the Louisiana Attorney Disciplinary Board. The ODC possesses a “clear and convincing” burden of proving an alleged ethical violation. The attorney has an opportunity to mount a defense before a Hearing Committee which will then issue a report and recommendation.Objections to Ruling- If an objection to the Committee’s ruling is raised, the matter will be heard before the Disciplinary Board. After briefs are filed and oral arguments made, the Board will make a recommendation which will then be filed with the Louisiana Supreme Court.Supreme Court – If either the attorney or the ODC objects to the recommendation of the Disciplinary Board, the Supreme Court will consider the matter after briefing and oral argument. The Supreme Court may reject the charges or issue sanctions to include: suspension, disbarment, or permanent disbarment.The rules set in place by the Supreme Court provide that formal charges against an attorney will be “deemed admitted” if no response is made within 20 days—even if the attorney otherwise had a meritorious defense. So, when you've got mail, the simple act of opening it may just save your career.Gracella Simmons’ practice includes defense of attorneys and law firms when professional liability claims are made and defense of attorneys in response to complaints made to the Office of Disciplinary Counsel.
Disbarment
Disciplinary Complaint
Office of Disciplinary Counsel
Sanctions Against Lawyers
Insight
Mediation: A Little History
You didn't expect to be here, but yet here you are -- stuck in a lawsuit over which you seem to possess little control. Now, your lawyer says he wants to "mediate" your case and wants a response from you soon. Unfamiliar with the process, you wonder if you should say "yes." Maybe a little history will help you to make your choice. Mediation arrived on the scene in Louisiana in the early 1990s. It offered an alternative to protracted litigation and the ordeal of trial. The theory was that mediation offered an efficient, cost-effective means of resolving a case and allowed the outcome to be determined by the litigants as opposed to the judge or jury.
In a state court trial, the outcome of your case rests in the hands of twelve unknown jurors or the judge. For all intents and purposes, once the case is submitted to the judge or jury, a litigant loses control of his or her destiny. Although judges and juries often get it “right," sometimes they do not. All you have to do is consider how many of the convicted are subsequently exonerated through a DNA analysis; how many cases get reversed on appeal; or, for a specific example, the O. J. Simpson acquittal which is often cited as an improper verdict. Mediation can put the decision-making back in your hands.
Mediation is generally an informal proceeding. The first step is for the parties to agree to mediate. The next, and very important step, is to select the mediator. You want a mediator familiar with your type of case. Then, you pick a date. Meditations usually last between a half-day to a full day. The mediation is attended by the mediator, the litigants and their attorneys in a confidential setting. It is important to understand that the mediator is simply the facilitator who “manages” the mediation. The “shots” are called by the parties through their attorneys. The decision as to whether to settle is solely in the hands of the parties. At the end of the day, cases are often resolved, perhaps most of the time. Even if the case does not settle at mediation, follow-up by the mediator often results in a settlement in the days and weeks that follow.
The process of mediation can be extremely valuable for these reasons: it can greatly reduce costs, fees and expenses; it gives the parties greater control over the outcome; it eliminates risk; and it allows closure and ends the distraction and emotional baggage clients often experience when in litigation. So now, when you are asked to mediate, you might let history be your guide.
By: Gracella Simmons, partner with Keogh Cox. As a mediator, she has successfully resolved a wide variety of cases over the past 15 years.
Alternative Dispute Resolution
Compromise
Mediation
Resolution
Resource
DAMAGES
DAMAGES- In Woods v. Hall, First Circuit, 2015-CA-1162 (4/20/16), the Louisiana First Circuit overturned an award for lost wages after finding that the proof offered was speculative and insufficient to justify the award. Following an auto accident, the plaintiff in Woods (who had received a doctorate in music with a concentration in opera) claimed lost earnings from a missed opportunity to attend an audition in New York populated with opera representatives from all over the world. According to plaintiff, missing the audition left her unable to work the entire 2013 opera season. Based solely on the plaintiff's testimony, the Trial Judge awarded $35,000 in "lost income and/or lost opportunity of income."In considering this award, the First Circuit re-stated the principles governing lost wage or earnings awards. As to past lost wages, the Woods Court commented that a plaintiff must present "proof sufficient" to establish the claim "to a degree of reasonable certainty." As to future income or a loss of earning capacity, Woods added that such awards are "inherently speculative," "intrinsically incapable of being calculated with mathematical certainty," and cannot be based upon "speculation, conjecture, and probabilities."After re-stating the law, the Woods Court applied these principles to find the plaintiff's proof lacking. Case facts revealed that the plaintiff was not guaranteed employment from attending the audition, had not purchased tickets to the audition, and could present no documentary evidence that she had even registered. On this basis, the award for lost income was vacated.
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News
Mary Anne Wolf will speak at a meeting of the International Facility Management Association
On May 17, 2016, Mary Anne Wolf will speak at a meeting of the International Facility Management Association, Baton Rouge Chapter, held at Juban’s Restaurant. The topic is Changing Contracting Methods – Design Build and Project Manager at Risk.
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