Three hours of MO CLE. Lawyers training lawyers to better serve clients. All profits go to Legal Services of Eastern Missouri.

Adopt a Child or Family for Christmas

We all give in our own way. My wife and kids spent time this past weekend buying gifts for a family through St. Vincent DePaul Parish. They truly partner with the poor to help those in need preserve their dignity. Parents enroll in the program to get gifts, food and toys for their children. I thought I would share this opportunity if you are looking for someone to help.

Call George Dennis if you want to adopt a kid or a family. You tell George how many kids or families you'd like to adopt and he matches you with the available kids – he then gives you their name, age, and their gift wish. Only one gift per kid ($30 max) and one overall family gift (dishes, movies, towels etc.). You can email George by clicking here. The phone number is 314-231-9599.

Plaintiff Waited Too Long, Says MO Appellate Court in Recent Opinion

Many clients often hesitate to contact an attorney after they've been injured. But a new Missouri Court of Appeals decision underscores the importance of having an attorney look at your case as soon as possible. A plaintiff who waited nearly 5 years to file her negligence suit waited too long, says the Southern District Court of Appeals in a new opinion.

The plaintiff, a Camden County woman, was being treated at a medical clinic. As she leaned against an examination table, the table slid forward, unexpectedly. Clinic staff had neglected to lock the wheels. The plaintiff lost her balance and fell violently, fracturing her hip. She sued the clinic on a basic negligence claim.

Normally, suits involving medical treatment are considered medical malpractice claims and carry 2-year deadlines (known as statutes of limitation), within which plaintiffs must file suit. Negligence outside the medical treatment context normally has a 5-year filing deadline. In filing a general negligence suit against the clinic, the plaintiff was trying to avoid the harsh 2-year deadline.

However, the Court of Appeals held that even though the case resembled common "slip and fall" cases, the crux of the suit was negligence in the context of receiving medical treatment - the plaintiff had simply waited too long to file suit.

This new Court of Appeals decision is a cautionary tale. The moral of the story is this: if you or your family get injured in an accident of any kind, it's vitally important for you or for them to get in touch with their attorney as soon as possible.

This is important to preserve evidence and information, but it's also extremely important so that deadlines aren't missed. Time flies. Don't wait until it's too late. You can read the opinion here.

Thanks.

Responses:

“Sorry to hear about your friend. My condolences.”

--Tim

“Gary, that’s a nice tribute to Judge Teitelman. He was a lovely man who truly was committed to justice and I hope that he will be remembered.”

--Bonnie

Happy Holidays

December 19, 2016

Good Morning Francis,

I've had a rewarding first year at my new firm, Burger Law. I appreciate all the clients, lawyers and friends who support us. Thanks.

To celebrate we had a Christmas gathering at our house Saturday night. This part of the year is great to be with family and friends and take time to connect and appreciate our relationships. Gratitude for what we have and hope and bright plans for the New Year.

CLE Success!!

And to get ready for next year, Burger Law hosted a day-long legal marketing and management CLE at its downtown St. Louis office. We were honored by a strong attendance by colleagues. Amazing and robust education in marketing (email me or call Casey if you want the materials). Look below for our main take-aways if you couldn't make it, but first some attendee comments:

"Thank you – more useful and enlightening information than any CLE program I've attended in a long time."

"Great job – lots of content and we can simply choose how/what we want to follow up on!"

"Go to this CLE Period. Best value.”

"Best use of an afternoon I could imagine. It reinforced some things I knew and taught me a lot of new things. Highly recommended."</p.

"It was amazing."

"Wish I had heard those 30 to 40 years ago."

"This was great, informative, thorough and original."

"Great seminar, introduced many topics that I had little prior knowledge, worthwhile experience."

Look for our next one in 2017.

CLE Takeaways

Marketing Basics for Lawyers

Recognize that Rome Wasn't Built in a Day. To become seriously successful as a legal marketer, you have to commit to learning. There are a variety of books, podcasts, and blogs that can help you gradually become a smarter and better marketer.

Focus your practice and your marketing on what you do best. Eliminate the breadth of your practice and hone-in on YOUR niche. The better you're able to describe what you do in a single thought, the more successful you become as a marketer.

How do you track your leads? You probably already pay a great deal of money for leads. Once you get them, what do you do with them? A critical first step is to begin storing your leads in a database. Next, develop a plan to market to the list.

Top 5 Marketing Trends for 2017:

1. 80-90% of web content will be video by 2020. Increase your presence among prospective clients online by adding video content.
2. Snapchat – Easy to build brand awareness utilizing this social media option. Allows you to build foot traffic by offering incentives. Showcase your services and answer questions through quick videos.
3. Live Video Streaming – numerous options here on Facebook, Instagram, YouTube Live.
4. YouTube Advertising – YouTube is currently the second largest search engine on the market (owned by Google). Could be the biggest search engine by 2020.
5. Gmail Advertising – with over a billion users, this is a robust option, allowing marketers to target specific AdWords and devices.

The Evolution of Facebook

Facebook changed their algorithm in 2012-2013 to limit views of business organic posts. It requires advertising in highly sophisticated applications with many demographic data points to target marketing. And the price of advertising is reasonable for the audience reached.

Facebook is currently the largest purchaser of personal data in the US: it currently has about 40% of all data available on virtually every adult in the US. By the end of the decade, it will have about 80-90%. Facebook advertising is becoming an essential arrow in anyone's marketing quiver.

New Year’s Resolutions for Lawyers

Practice law, run your business and market yourself. Create, implement and nurture systems in all these three areas. Determine your marketing plan and implement it.

Guard Your Time, Manage It Better – Time limitations can be a major source of stress. It becomes essential to master your own efficiency at accomplishing tasks. Part of the solution is attitudinal - put your game face on when you come to work and don't waste time on tasks which don't move the ball.

Another part of the solution is to identify the sea of minor tasks which pose obstacles for you to accomplish your most important tasks, then develop strategies for either delegating the minor tasks or accomplishing the minor tasks more efficiently.

Relax and Have Serenity – Don't forget to spend some time on yourself. This means taking inventory on yourself emotionally and personally. Recognize that there are many things that are outside of your control. Accept that fact and don't fixate on things that cannot be helped. Focus your mental and emotional energy over things you can control.

Establish a Marketing Plan – taking the time to develop a good marketing plan is essential to the success of your practice. Set aside time a solid chunk of time on a weekly basis to only think about marketing. Focus on incremental gains and try not to get overwhelmed.

2016 – Five of this year's most significant and popular opinions:

1. State v. Bazell – Due to a legislative blunder from the 2002 Criminal Code, the Supreme Court of Missouri overturned the felony convictions of a Defendant for stealing as the charges should not have been classified as felonies. It turned out that the legislative definition of "stealing" did not include "value of property or services" as an element, and therefore the Defendant's charges should have been misdemeanors. Consequently, this decision called into question thousands of criminal convictions that involved stealing since the 2002 code was enacted.
2. State ex rel. Heartland Title Services, Inc. v. Honorable Kevin D. Harrell – In a matter of first impression, the Missouri Supreme Court examined Missouri's venue statute and whether an injury for a malpractice tort which occurred outside the state could be brought in Missouri. The Court ruled that venue was proper in any county in Missouri as long as both subject matter and personal jurisdiction are met.
3. Pestka v. State – Back in 2015, the Missouri General Assembly passed House Bill 150 (HB 150) which placed limitations on Missouri's unemployment benefits. Subsequently, Governor Nixon vetoed the Bill from being signed into law. When the Assembly voted to override the veto, they did so during the September 2015 veto session. The Missouri Supreme Court tossed the override because only bills returned by the Governor on or after the fifth day before the end of the regular legislative session can be taken up during a September veto session.
4. Mo. Petroleum Storage Tank Ins. Fund Bd. Of Directors v. Conoco Phillips Co. – In a significant State civil procedure decision, the Missouri Supreme Court ruled that a potential intervenor does not have a right to an immediate appeal from an interlocutory order denying a motion to intervene as a matter of right. This was contrary to prior appellate court decisions which held that this type of intervention is immediately appealable.
5. Mickels v. Danrad – When a patient died of a terminal brain tumor, the family sued the defendant physician for negligently failing to diagnose the tumor on a prior date. When the trial court entered summary judgment in favor of the physician for wrongful death under Mo. Rev. Stat. 537.080.1 the Missouri Supreme Court reversed and remanded. The Court stated that the same allegations were sufficient to state a cause of action under Missouri's survivorship statute (Mo. Rev. Stat 537.020) despite being insufficient for a wrongful death claim.

Thanks.

Responses:

“Merry Christmas, Gary! I always look forward to your emails. Good stuff. Best wishes for continued success in '17.”

--Frank

Happy 2017

January 2, 2017

Hey Stuart,

Happy New Year. I hope you plan on having a great 2017 – and hope it's a self-fulfilling prophecy. Our marketing and business CLE in December should give some pointers for this. Email me if you'd like the materials from that conference.

This is an amazing time – less than three weeks left for President Obama's tenure. Rapid changes in technology, jobs and our social fabric and norms. Rather than this being daunting, I embrace change and have it work in my business and family life. My family brought in the New Year with a trip on Amtrak to Chicago for the weekend.

END OF YEAR SETTLEMENTS

We tend to resolve a lot of cases at the end of year. Insurance companies can pay more to clear their books at the end of the year.

We represented our client Alex against Bonnie Kittrell and APC Pest Elimination. She weaved to the wrong side of the road and hit Alex's car head on. Incredibly, the insurance company completely denied the claim and would not pay any money at all to our client. When we get these cases we do one thing – we filed suit and litigated the case. We served discovery and kept pressing the case.

Alex had soft tissue injuries – but they still caused him a lot of pain. Folks in these predicaments usually are concerned about how to take care of their families and their future.

We were happy to settle Alex's case for $90,000 and are waiting on the checks. This will go a long way to helping him in the future.

HOW MUCH ATTORNEY FEE TO PAY FORMER LAWYER?

We represented Catherine and just secured a $55,000 settlement for her auto crash. She had a long legal battle – but not because of us. She had a prior lawyer who she hired and who did not do much. He signed her up in 2013 and she completed her medical care shortly thereafter.

She had called me over the years about the delay in her case – and I would call the lawyer and ask him to work quicker on the case. She is the sister of my client Brenda (for whom we got a $305,000 settlement). But he didn’t.

His records show he only worked on her case less than four times over 3 plus years. She finally called and fired him and hired me. Right after she fired him they offered 30,000 to settle the case. That lawyer is asserting a 1/3 fee of the $30,000 offered a couple days after he was fired.

He waited over a year from when she finished her medical treatment before trying to settle the case with the insurance company. And then another year to follow up to get a settlement offer.

He then waited another three months before responding. This three year delay with no results really impacted the client.

I am interested in any feedback I can get about how to treat the lawyer. I think I should pay him the expenses he paid out of pocket but don't think he should get a fee. What do you think? Email me and let me know.

FEE DISPUTE RULES

Did you know the Missouri Ethics rules say that any fee dispute should not be litigated and instead should be referred to the fee dispute committee of the Missouri Bar?

Rule 4-1.5 (f) states: "When a fee dispute arises between a lawyer and a client, the lawyer shall conscientiously consider participating in the appropriate fee dispute resolution program. This does not apply if a fee is set by statute or by a court or administrative agency with authority to determine the fee."

Know the two most complained of ethics rule violations? Answer in next email.

Thanks.

Gary Burger

Response:

“Happy New Year Gary!! Me and Tom love your Gmail’s!! We enjoy the photos of your family!! Me and Tom are due to be grandparents this February!!! And we have 2 grandchildren from our daughter in law's first marriage!!! Very exciting times!!! Hope you continue to send wonderful Gmail's!!! Hope you and your beautiful family have a great year and look forward to hearing from you again!!! Take care old friend!!”

--Sheila

Happy MLK Day

January 15, 2017

Good morning Eric,

There's a lot written about Dr. King, but I thought I would share a story about a trial involving him. In 1956, King was indicted by the Montgomery County Grand Jury for his boycott of the Montgomery City Lines, Inc.

Dr. King was tried as a criminal defendant for violating an Alabama statute that outlawed boycotts against businesses when he boycotted the Montgomery City bus line. He was represented by legendary trial lawyer Fred Gray who presented evidence of the abuse blacks suffered from Montgomery bus drivers.

One woman testified her husband was killed by Montgomery police after a confrontation with a bus driver over a fare. They called 31 witnesses over the 4 day trial to try to prove the propriety of the boycott. They presented an impressive case.

But at the end of the trial, the judge found King guilty and fined him $500 and $500 in court costs. This doesn't sound like a lot, but it's $8,825 in today's dollars. So he appealed – and lost. The court converted the fine to 386 days in jail – from a fine to jail time. King's lawyer was amazing but was fighting entrenched white supremacy. Learn more about Fred Gray here.

King said: ''I was optimistic enough to hope for the best but realistic enough to prepare for the worst. This will not mar or diminish in any way my interest in the protest. We will continue to protest in the same spirit of nonviolence and passive resistance, using the weapon of love''.

Another appeal failed – King missed the 60-day appeal deadline. King paid the fine in December 1957. This shows the power white state officials used against King and his compatriots in the 1950s and 60s.

His remarkable civil disobedience was an amazing and effective tool to radically change America. He was arrested 30 times and was later jailed in Alabama – and wrote his famous letter from a Birmingham jail on April 16, 1963.

We are indebted to lawyers like Mr. Gray and heroes like Congressman John Lewis who fought and suffered for African Americans. And by 1964 he was behind President Johnson when he signed the Civil Rights Act of 1964.

Dr. King is seen above with many politicians – Republican and Democrat. He was in neither party and never endorsed a political candidate. He did say: "I don't think the Republican Party is a party full of the almighty God nor is the Democratic Party. They both have weaknesses ... And I'm not inextricably bound to either party."

Did you know that Martin Luther King will be featured on the new $5 bill?

Put Up or Shut Up

We have many instances where insurance companies and corporations don't do the right thing. We file lawsuits and push cases to get justice. We had three examples of this last week.

First, we represent Stanley Parker and Kelvin Haynes in an auto crash case. The insurance company, ELCO Insurance, gave a very low offer. We were not going to take it, so we filed a lawsuit. Unfortunately, the defendant dodged service and was from another country. It literally took us 9 months to serve this person. When she did get served, a lawyer contacted me and said that she had no insurance and no money.

However, I knew she did and sent the Petition to the claims adjuster, who was not offering any money. This is the same claims adjuster who refused to accept service for his insured and did nothing to try to fairly adjust the case as they are required to do under state law. Here are your rights in dealing with insurance companies.

Well, we advised the insurer that we obtained service, so now they want to talk settlement and offer additional money in the case. Justice delayed is justice denied. We will keep pushing. Insurance companies delay to get advantage. Aggressive lawyers add value to cases.

Second, we represent a family in a wrongful death medical malpractice case. Mercy Hospital refused to give us records of medical care he received shortly before his death. These are critical in the case for our expert to review. We have been pushing for this for over 60 days, and we keep getting the runaround.

It is sometimes difficult to get wrongful death cases because the defendants try to say that the immediate family members are not authorized representatives. But we represented the whole family of this deceased person. We sent letters, made phone calls, and sent emails and still Mercy would not give us the records.

So, we prepared a Petition under Mo. Rev. Statute §191.227 to sue to get the medical records. As soon as they saw that, they capitulated and sent us the 250 pages of records immediately as an attachment in a secure email. This statute is an effective way to get medical records.

Lastly, we are pursuing a class action claim for bad faith refusal to settle against an Illinois insurance company. We went and won a major motion to compel requiring them to produce all complaints about how Unique insurance treats its customers in uninsured motorist cases. More to come on that front later.

I advocate safety often in my job – anything unsafe about my daughter Audrey cutting off my winter mustache?

Gary Burger

Responses:

“Go Audrey Go!!! Best chuckle of the day!”

--Ric