MLK Day

January 15, 2018

Hi there, Allen, and Happy MLK Day!

Martin Luther King’s "I Have a Dream" speech was given almost 55 years ago.

We have progressed in King's dream that his children "live in a nation where they will not be judged by the color of their skin, but by the content of their character."

But our president picked this week to question admitting darker skinned immigrants from Haiti and Africa and instead white people from Norway. Racial ranking in immigration challenges our progress.

Did you know choosing immigrants from countries as a race litmus test was raised by conservatives in the 1920s? This led to race superiority theories in Germany and Italy before and during WWII.

This 1924 immigration reform was discussed and promoted by Trump campaign spokesmen Jeff Sessions and Steve Bannon.

I try not to be controversial in these emails, but as Dr. King said in is Dream speech:

"Our lives begin to end the day we become silent about the things that matter."

Below I will talk about some good news about race relations, a funny video fail of mine with my son Jordan, influenza, and a court victory last week by Nicole Grovosky.

First, here's some wisdom by the Rev. Dr. Martin Luther King Jr:

"Injustice anywhere is a threat to justice everywhere. We are in an inescapable network of mutuality, ties in a single garment of destiny. Whatever affects one directly, affects all indirectly." (Letter from Birmingham Jail)

"So I have tried to make it clear that it is wrong to use immoral means to attain moral ends. But now I must affirm that it is just as wrong, or even more so, to use moral means to preserve immoral ends."

The arc of the moral universe is long, but it bends toward justice.

Words that are still relevant today as our president is making comments about people from other countries.

A Bit of Good in all the Bad

While disheartening, recent stories about those working to help others and denouncing Trump's comments are welcomed.

Senator Dick Durbin confirmed Trump made those "vile" comments repeatedly during an immigration meeting in which the Senator was present. Senator Durbin describes Trump's words as "sickening and heartbreaking words."

Senator Durbin wasn't the only one to rebuke Trump's words – many reacted to the news. Another great story about an area Judge is truly inspiring.

A story was recently published on Federal District Judge Richard E. Webber. Judge Webber's story is astounding. Understanding he can make a difference, Judge Webber makes it a purpose to meet with all of the people he sends to prison, to let them know in his words, he cares about them. Here's an excerpt:

At one point, the judge, who is white, knelt before one of the men in the all-black audience to say how sorry he was for sending so many young black men to prison — and to drive home his main point. “I’m here to tell you that I care about you,”

Judge Webber says for many, they tell him he is the first person to ever tell them that. Judge Webber encourages them to take classes and graduate high school or get their GED, and when they do, they often send their certificate to him.

Judge Webber says the only way change is ever going to happen is if "everybody rolls up their sleeves and puts aside a lot of their preconceived ideas and looks for new ways to really solve some of these problems that aren’t being solved."

Justice for our Clients

This week, one of our attorneys, Nicole Gorovsky, had a great victory for a young woman who was sexually assaulted on a college campus. As happens too often, the University did not accommodate the young rape survivor, and refused to remove the perpetrator from campus.

He attended class with her and there was no school recourse, contrary to Title IX. The woman was forced to see her attacker on campus daily as she attended class despite the fact that her perpetrator continued to harass her.

Thanks to the work of Burger Law, the woman was able to get a hard-fought full order of protection barring the rapist from campus until well after she graduates. He can’t be within 500 feet of her, go near her home, or go anywhere near where she works. Justice prevails and clients are safer due to the work of our attorneys!

Get a Flu Shot

Many people think the flu is no big deal and don't take symptoms seriously. We had a client a few years ago whose husband exhibited flu-like symptoms. In her claim, we sued two emergency room physicians who failed to timely diagnose and treat sepsis in Lisa’s husband.

There are many signs of sepsis infection and it can originate from anything. Sepsis is a general term referring to infections. However, when a bacterium becomes a sepsis infection, it can lead to cascading events that can bring on death quickly.

The flu can be fatal. As a part of her mission, Lisa helps raise sepsis awareness after her husband died.

She has truly taken his memory and her love of him and made lemonade out of lemons by trying to save the lives of other people who get sepsis infections. She put up a billboard. Please go here for sepsis awareness information.

There are other stories about the potential dangers of the flu and other infections that arise in the winter that many people shrug off. A San Diego Navy veteran was hospitalized in the Intensive Care Unit after his flu-like symptoms (headache, chills, body aches) turned into difficulties breathing and renal failure.

Compel, Liens and CLEs

January 29, 2018

Can you believe how nice it has been this week? Hard to believe it's January in the Midwest when it's 60 degrees outside. Hope you enjoyed it. Below I give my top 10 tips on addressing liens in cases and have an Illinois CLE coming up on 2/23. But first:

Compel

I argued a motion to compel last week against the Missouri Department of Corrections in Cole County and won each of the 9 points raised. The challenge is that I am about 6 weeks away from trial and the documents were previously ordered to be produced.

Apparently, I’m not the only one. As illustrated by a recent Post-Dispatch article, the Missouri Attorney General has been sanctioned in different courts for not complying with orders to produce documents and information. For that article, click here.

In my case we are helping a class of corrections officers because Missouri will not pay them for the time it takes them to get through metal detectors and airlocks, get keys and radios and walk back into the bowels of the prison to relieve the prior shift. It’s called pre and post shift activity, or donning and doffing.

It's part of their job, they're required to do it and their bosses admit it's really important. Officers work about a half hour a day without being paid.

We will try this case in March and hope to be successful. I'll let you know.

Ours is only the most recent employment case with the Department of Corrections. They have had numerous verdicts against them for other bad employment practices.

Upcoming CLE

USA&M is putting on a Best Practices Seminar that I am excited to be a part of. I am speaking on the Reptilian Theory: The New Frontier of Trial and Negotiation Practice.

The “reptile approach” was created by Don Kennan and David Ball. In their book, Reptile: The 2009 Manual of the Plaintiff’s Revolution, the authors teach about the psychology of persuasion and the base or “reptile" brains in all of us.

But to get the book or learn the system you have to be a verified Plaintiff's lawyer or member of a Plaintiff's legal firm. A law firm that does any insurance or self-insurance defense work on behalf of defendants cannot buy the material or participate.

I've done CLEs and blogs on persuasion and jury selection before. Here's a blog I did a couple years ago after picking some juries and trying some cases. The CLE will not teach the Reptile practice but discuss its roots in well established Illinois law.

Liens

I get lots of questions about liens from lawyers and clients. We handle them in almost every case. I delivered a detailed presentation on it last year: click here for my written material on liens at the CLE and here is a video of my lecture on liens and teaching other attorneys about handling and resolving them.

Here are my top ten tips on addressing liens.

1. Is it properly asserted? Certified mail? No lien for in-state, non-ERISA health insurance benefits.
2. Amount accurate? Many times medical providers and Medicaid have the bills wrong. Sometimes, medical in the lien is not related to the incident. You wouldn’t just pay a personal bill without checking the accuracy.
3. Start working on liens early – don’t wait until the case is settled. Start contacting lien providers to see whether they will reduce. Send them the first low offer so they know how hard you are working for a recovery.
4. Always reduce the lien. Most lien providers will reduce them. I typically try to reduce a lien by 1/3. Some are tough so you may not get this every time. Know your arguments why they should reduce – bills too high, take less with insurance, had a lawyer to collect, etc.
5. But do not be too unfair in reducing – that doctor/nurse/PT/chiro helped your client and you want them advocating in your cases.
6. If you can’t reduce a lien that should be reduced, file a Motion to Adjudicate Lien in court. The court has inherent authority to establish a fair value of the lien. If a medical provider saw someone once and billed $10,000.00, that’s not fair. You would be amazed how the other side caves or doesn’t show up at the hearing. Email me if you want a form motion.
8. Use the Missouri or Illinois lien reduction statutes, these are powerful tools to ensure that a claimant gets half the net recovery after attorneys fees and expenses and ensures that the lien holder cannot sue your client later. Email me for the statutes and my Excel spreadsheets that calculate the pro rata lien reductions.
9. Always talk with your client and explain liens and how they relate to the case. By the time the case is settled, the client should understand liens, their importance and how they are involved in the settlement. Remember that the client got a good benefit from the lien and medical care which contributed to the recovery, so liens are a necessary part of the case.
10. Liens are good. Having all the creditors assert liens means that when a case is over your client doesn’t have anyone chasing them to get paid. We often encourage lien holders to place liens so that we can make sure that if they are reduced and that the client gets a good deal on those bills and they are free and clear of any charges related to the claim.
11. Don’t be afraid of ERISA liens. Just because an ERISA lien holder can assert Federal Court jurisdiction and won’t reduce does not mean that they will stick to their position. Are they gonna really pay a lawyer to file suit? I leave the ERISA lien in my trust account and call them in 6 months.

Depositions and Karen Russo

February 12, 2018

Good Morning, Richard,

I've just spent about three weeks being in depositions every day. I am going to discuss a couple settlements obtained right after depositions below and a zero offer to $100,000 full policy settlement. But first I wanted to thank my friend and court reporter, Karen Russo.

I am blessed to have used the same court reporter in my litigation work for 20 years. Karen Russo is simply an amazing court reporter and person.

Karen and I have done hundreds, likely over a thousand, depositions together. I spend my time in depositions concentrating on winning my case and doing all of the litigation tactics I use. I never have to worry about whether she is keeping up or has got my back.

She gets every word said, which is important because that's how we win cases.

She is such a stable, amazing professional that, frankly, I take it for granted. Sometimes we are around people in our life that we just count on to be steadfast, rock solid, and always there. I often thank her, but have not in an email like this.

Thanks, Karen. You're a fantastic court reporter and consummate professional.

She is an independent court reporter with her own business. Hire her here.

Karen has been in the trenches with me in some amazing cases and amazing depositions. We couldn't even begin to relate the amazing stories and crazy testimony we have gotten together.

Last Thursday at the end of 10 hours of depositions of some California PhD experts against my case (and with only a couple 5 minutes breaks), I turned to Karen:

Me: “It has been a while since we've done a 10 hour deposition, hasn’t it.”

Karen: “Yeah, you're slowing down as you get older.”

Me: “I guess I am. I am not giving you carpel tunnel today am I.”

Karen: “You already did long ago.”

The other thing I sometimes do is brag to the witnesses in depositions that Karen and I have been doing this for a long time together – usually when she reads back a question they haven't answered.

Typically, I tell them that Karen has been doing this for 40 or 50 years (as an age joke). She can’t really respond -- we are on the record and she has to report everything I am saying. I have made this joke at least 50 times – it is only funny to me.

Karen also has an amazing life and is a devoted mother, community volunteer and supportive partner to her husband - an amazing cook. He has a fantastic St. Louis based restaurant and catering company called Russo’s Catering.

I can’t say enough about Karen. She is the type of person who just quietly goes about her life and her business – winning daily. I have not heard her brag or a cross word in 20 years.

She brightens everyone's day, supports her family, friends and community and is an absolute joy to be around.

Three Settlements after Deposition

Depositions are an important step in resolving cases that are being litigated and well worth the energy and time that goes into them.

At Burger Law, we take depositions very seriously, and prepare our clients with videos, over the phone, and in person interviews for their depositions. We also have our team researching details of the defendants for their depositions, with no stone unturned.

People talk about how we push forward in cases and take a lot of depositions. They are extremely valuable. Below I give a few examples of cases we have recently settled due to depositions and the testimony given by either my client, or the defendant, that sways them into either accepting liability, or understanding the gravity of the injury and their role in it.

Hit and Run

I recently wrote about my client Joe and promised I would give an update. I ended the last update saying we had asked for the depositions of the defendants. They settled the day before the defendants depo and after Joe did a great job at his.

Joe testified the other driver hit his car then sped off, went the wrong way on a street downtown and even opened their trunk to prevent their license plate being read.

They followed the car and were able to get the license plate. We found the owner of the car and sued them. They said they did not know who was driving – but it was their daughter's car. So we sued the daughter – then she said she did not know who was driving. I guess it runs in the family.

But we knew we would get to the bottom of it, and depositions were how we did it. We settled his case for more than four times his medical bills.

Next Day Settlement

Chris was sitting on a retaining wall when it collapsed. He was injured but the defendant would offer almost nothing. We fought with the defendants for months. They wouldn't budge.

In deposition, the corporate designee stated they had no system for checking the safety of the retaining walls on their complex, have no way of ensuring their safety, and said they had a database where they kept records of any incidents, but not wall failure.

The day after the deposition, the defendants nearly doubled their offer, and we were able to settle the case. Check out the video below to hear more on why depositions can be so useful in cases like this.

From $0 to $100,000 Full Policy Settlement

Our client, Rick Dunlap, stopped at Eovaldi’s Deli on the Hill for lunch, while hauling materials on the job. After Rick had parked and gotten out of the truck, he realized he left the keys in it. Rick reached back in and his open door was smashed by another car.

The streets are narrow in that neighborhood – especially at lunch time with cars parked on both sides of the street. The Defendant had all kinds of stories – Rick opened his door into her and it was his fault. The police talked to her and she cried and apologized.

The police report noted that the Defendant was at fault. But she called them later and added an addendum to the report that Rick suddenly opened his door, hitting her car. The Insurance company originally denied liability completely and found Rick to be 100% at fault.

The Defendant bent Rick’s door while he was holding on to it – pulling his shoulder. She was speeding. Rick tore his rotator cuff in the accident and needed surgery. After getting his surgery, and some physical therapy we made a policy limit demand. The insurance company refused to make an offer on the case until after Rick’s deposition.

Rick did an amazing job at his deposition and was well prepared. We work really hard to have our clients advocate for their case well in their depos.

Three days later they offered the full policy limits of $100,000. Rick is a great and honest guy and I was honored to represent him. He also went back to work just two days after his shoulder surgery, with his arm in a sling, because he is such a hard worker.

She had stopped at the stop sign, hundreds of feet away, when Rick first exited the truck. Yet she claimed he suddenly opened the door and hit her.

We are happy to have gotten Rick such a great result but the battle continues. Rick’s health insurance was provided through his work and they were self-insured. They denied health insurance coverage claiming that they didn’t have to pay if a third party was at fault.

Also, Rick did not file a workers’ compensation claim because he was such a loyal employee and wanted to solely pursue his civil claims.

Rick is no longer with the company and has started a new job. We will not stop fighting until Rick’s medical bills are paid for by his health insurance or by the company’s workers’ compensation insurance. We are happy to continue to fight for clients like Rick to get them full compensation.

Depo King.

Gary Burger

Board Certified/AV Rated/Super Lawyer

500 N. Broadway, Suite 1350, St. Louis, MO 63102

BurgerLaw.com

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I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution. – Thomas Jefferson

Responses:

“Thanks for all the newsletters. I appreciate the stories and the law. Keep up the fight!”

-- Mary