Diving

May 9, 2016

Dear Robert,

I thought I'd share one of my major non law activities. My second job is as a scuba dive master and trail leader at Bonne Terre Mine. This abandoned lead mine is a truly unique dive experience in an amazingly vast underground space. We were just voted top dive spot in America.

The mine's great staff of professional divers guide hundreds of divers there each year. Email me if you'd like to dive with me and check out the mine, or click here to visit the website to get more information (The mine has been reported on and highlighted in the press many times).

Our dives range from beginner to really advanced tech diving. The mine is a labyrinth of narrow tunnels, huge rooms and deep holes - with depths too deep to really dive. Tons of fun for us!!! It's taken me years to learn the mine, hone my skills and be able to take divers.

Diving has many analogies to being a lawyer and life. We practice our skills, prepare for emergencies beforehand, task load ourselves so we can more easily multi-task, and are responsible for ourselves and our dive buddies. I could go on and on.......

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Our first CLE was a HUGE SUCCESS. Almost 100 people attended to learn the law (as I see it.) We had tremendous reviews. Here's one from a great lawyer, Alif Williams:

Thanks so much to you and your mom for the very best CLE I have attended in my 37 years of practice. I mean it. Everything discussed was directly relevant to important and sticky issues that come up in a PI practice. The ethics discussion was also very good. I never knew MoLAP existed until today. I will not hesitate to encourage dependent colleagues to use it, especially given the confidential and remedial aspects of the program. You are obviously a brilliant attorney. Your superior knowledge, professional commitment and charisma are readily obvious.

I swear I did not write this (but Alif gets into the next CLE in June for free). If you would like the great materials my mom and I prepared, please email me and I can mail you the booklet. We will be publishing it on Burgerlaw.com.

We had some questions about resolving liens and the Missouri Lien Reduction Statute. That law is R.S.Mo, section 430.225 – which provides your client gets half the settlement proceeds after your fee and expenses and the lienholders split the other half pro rata.

One of my favorite parts of the CLE was when I told folks to use R.S.M § 494.470.1 for Voir Dire strikes for cause, because my Judge Burger had not seen it before. I take it up to the judge when trying to strike jurors for cause. Many are not familiar with it.

This provides in part: "no person who has formed or expressed an opinion concerning the matter or any material fact in the controversy in any case that may influence the judgment of such person… shall be sworn as a juror in the same cause…. "

Take care.

Gary Burger

Remember the Alamo

May 23, 2016

Hey Jim,

So we went to the Alamo on Friday.

Interesting Alamo Facts:

1. The Alamo was originally built as a church in 1718 to convert Indians to Christianity.
2. The battle of the Alamo occurred when 186 Texans, led by David Crockett, James Bowie, and William Travis, held out against General Santa Anna’s large army for thirteen days before finally being defeated and killed.
3. Sam Houston defeated General Santa Anna at San Jacinto a month later, uttering the famous battle cry: “Remember the Alamo!” They diverted Santa Anna's attention with the beautiful "Yellow Rose of Texas," before attacking.
4. Later after he was kicked out of Mexico, Santa Anna retired to New York. He would chew parts of the Chicle tree and talk with his neighbor Wrigley. Guess what Wrigley invented?
5. Former District Attorney Susan Reed once issued a press release titled “Don’t Whizz on the Alamo.” It’s made from limestone and urine is highly corrosive.
6. In 1982, city council banned Ozzy Ozbourne from San Antonio for peeing on the Alamo statue.

ANOTHER CLE – DEPOSITION AND MEDIATION PRACTICE

Judge Tom Prebil and I are presenting a two hour CLE. We are doing two sessions - morning and afternoon.

The presentations are as follows:

Advanced Deposition Practice: You're in litigation. How do you prepare your client to be an effective witness and advocate in their case? How do you depose the Defendant to establish liability and win your case? Doctor depos for trial? I will tell you how.

Winning Mediation Strategies: Mediation techniques; negotiation tactics; how mediators work; what wins in mediation and how to get the best settlement possible. Judge Prebil will provide his views of mediation as a mediator, former Judge, and long practicing trial attorney. This is a real opportunity and I am thankful Judge Prebil is joining me. (I will present strategies and specific presentations used in successful mediations.)

Location - 500 North Broadway - First Floor

June 27, 2016

Morning session: 10 am to noon

Afternoon session: 2 pm to 4 pm

We both have done great CLEs in the past to educate lawyers on practical legal issues and improve our profession. Here are some comments from the last one:

"Exceptional. Great presentation. Wow."

"Thanks for the very best CLE I have attended in my 37 years of practice. I mean it. Everything discussed was directly relevant to important and sticky issues that come up in a PI practice."

"Your superior knowledge, professional commitment and charisma are readily obvious."

And please visit our new Lawyer to Lawyer page on Burgerlaw.com for great free resources – forms, videos from CLEs etc. Or email or call me with questions at [dynamic-phone-number].

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Another Trial – And we even won this time!!

Last week I tried another case in St. Louis County and obtained an actual and punitive damages verdict for our client Loryn Coffey. Very proud to represent Loryn and help her and her kids. I actually tried this case twice – the first trial resulted in a mistrial.

This was a pregnancy discrimination claim against a small business. Loryn was terminated from her position because she was pregnant in 2013. The Defendant put up a lot of stories and made a lot of arguments of why her termination wasn’t pregnancy related.

This time the Jury was convinced the defendant discriminated against Loryn and rendered a punitive damage verdict for almost as much as the actual damages. We are so grateful to the jurors who did their public duty and gave their time and attention to this important case. Jurors called me the next day. The defendant lost credibility after cross examination.

In this trial we obtained punitive damages for our client. Punitive damages are recoverable in Missouri if the defendant’s conduct: “was outrageous because of defendant’s evil motive or reckless indifference tithe rights of others, then in addition to any damages to which you find plaintiff entitled [for actual damages, the jury] may award plaintiff an additional amount as punitive damages in such sum as [the jury] believe will serve to punish defendant and to deter defendant and others from like conduct.” MAI 10.01.

Note that the State of Missouri takes 50% of the net proceeds of any punitive damages verdict. See Burnett v. Griffith, 769 S.W.2d 780 (Mo. 1989). But we get our attorney fees and expenses under R.S.Mo. Section 213.111.

Fight to the end in all your cases. Never give up. We are blessed to be able to try cases for our clients - too many lawyers don't.

Did you know that four messengers rode from the Alamo to get help through 5,000 Mexican soldiers - but learned no help would be sent? So, they rode back through those same troops and back into the Alamo to fight and die with their brothers? Wow.

Thanks for reading.

Gary Burger

Responses:

“Gary, this is your best one yet. A++++”

--Jim Hacking

Summer

June 22, 2016

Hi Karen,

Happy summer!! Here's some summer news.

The Missouri Supreme Court has ruled that the noneconomic damages cap in Missouri statute section 538.210 does not violate the Missouri Constitution. So, noneconomic damage recovery for the families of Missourians who die as a result of medical malpractice is capped under the statute. In Dodson, et al. v. Ferrara, et al., -- S.W.3d --, No. SC95151 (Mo. 2016), the plaintiffs obtained a $9 million noneconomic damages verdict for medical malpractice in the death of a 34 year old wife and mother. The trial court reduced that recovery to $350,000 under 538.210.

The Missouri Supreme Court relied on Sanders v. Ahmed, 364 S.W.3d 195 (Mo. 2012), and affirmed the trial court's imposition of the damages cap. The court rejected right to jury trial and equal protection challenges to the tort reform cap.

Just in case you thought there were too many laws constraining the second amendment, the Missouri legislature has passed and sent a bill to Governor Nixon called "Stand your ground" or conceal and carry without a permit. If signed, courts would have a lot of work clarifying what it means. Terrible tragedy in Orlando – so sad. But we get these mass shootings weekly in America.

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Can’t Legislate Restrictions or Guidelines for Guns Because it’s in the Bill of Rights?

What about the huge amount of tort reform and constraints on the rights of injured people and their families despite the Right to Trial by Jury (7th Amendment) (like Dodson decision)? What about libel and slander laws and constraints on the First Amendment? Warrantless wiretaps and searches since 9/11 straining the language of the Fourth Amendment? Right to Vote? It seems it’s harder to vote in Missouri than buy a gun – you need more identification for sure. Alright, off my soapbox.

If you’re a music lover like me, you may be entitled to free tickets. Ticketmaster just settled a $400 million lawsuit. If you bought tickets through the service between Oct. 21, 1999, and Feb. 27, 2013, you might be to entitled ticket codes allowing you to claim two free general admission tickets.

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Summer vacation is an American ritual that we grow up with and pass to our kids or family. It’s also a well needed reprieve from the stressful world we all live in. Sometimes I don't even realize how stressed and consumed in my day to day life I am, until I get away and slow myself down. It’s an important reminder for us to slow our lives down, relax and be conscious and present to the world around us.

Did you know we are losing our coral reefs? Kristen and I went to Roatan Honduras last week for vacation. Amazing time and had a blast on our honeymoon. The scuba diving was great. We had a glimpse into the underwater ecosystem that is constantly growing, interacting and evolving.

Congratulations to Thomas Prebil and Robert Cohen on their retirement from the bench in St. Louis County. Judge Cohen has served for (I think) 42 years as a Judge – first being elected to the position before the Missouri Court Plan was passed. Judge Prebil tried cases as a defense lawyer, as a plaintiff’s lawyer and then took the bench for many years as well.

Both are shining examples of what lawyers and judges should be: compassion for the citizens, companies, and other entities that come before them, hard work ethic and drive to mete out fair justice. Both worked from law school to retirement without missing a beat.

I had the good fortune of having Judge Prebil as a mentor in my first years of practice. He taught me how to zealously litigate and be a gentleman while doing so. Judge Prebil second chaired me in my first jury trial and major verdict. We obtained a strong compensatory and punitive damage verdict, and kept it on appeal (including to the Missouri Supreme Court). The insurance company denied the claim in bad faith and we collected over $1 Million on a $500,000 policy for our client Evelyn Goodlow. As serious as the practice of law can be, Tom always found the right time to chuckle.

I was lucky to try two cases before Judge Cohen in his last 6 months. Judge Cohen is working and trying cases to the very last day he is on the bench - no shirking. In my last trial in front of him four weeks ago, we were the only jury trial going that week in the St. Louis County courthouse.

My second favorite part about being in front of him is that he argues both sides of any issue. If you argue a matter before him, he will set forth the legal rationale on both sides of the argument. Mr. Burger you would say this, this, and this in support of your argument and I suppose the defense would say this, this, and that, and then your response would be this. Is there anything to add? And then both lawyers would sit there and say “uh no you basically said it better we would have”, and then he rules.

It becomes obvious he has done this before. But, it is never condescending to you or dismissive in any way. He synthesizes your case better than you can – I asked him to close for me the last trial (but so did opposing counsel).

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SUMMER SAFETY: We deal with injuries from the following all the time, so please remember:

BE PREPARED FOR HOT TEMPERATURES

Heat stroke can strike anyone, but people who work outdoors and the elderly are particularly at risk. Wear loose fitting, lightly colored clothing and stay ultra-hydrated with sports drinks. An early warning sign of heat stroke is cramping in the legs. If you experience cramping, take a break from your activity and hydrate yourself until the cramping is gone.

BE CAREFUL SWIMMING AND BOATING

Never leave a child unattended near a body of water. It doesn’t take much water for a person to drown. Make sure that young children are equipped with proper flotation devices like water wings and life vests. Also beware of diving in water of unknown depths and never swim alone. When boating, never operate the vessel under the influence of drugs or alcohol and always steer clear of people floating and swimming in the water.

FIREWORK FUN

Every year we see people with blast injuries, burns, scars and disfigurement from handling fireworks. It is best to let sober adults handle fireworks and to keep children a safe distance away.

RIDE YOUR BIKE

It goes without saying that everyone, regardless of age, should wear a helmet when riding a bicycle, but I will include that reminder in here anyway. Cyclists should wear brightly colored clothing and make sure that their bikes have reflectors appropriate for nighttime driving.

ALL-TERRAIN VEHICLES, DIRT BIKES AND MOTORCYCLES

Here is a sad statistic: Children account for 30 percent of all ATV related deaths and emergency room treated injuries. Do not allow children who are not old enough to drive to operate these recreational vehicles. Keep in mind that most ATVs are not designed to carry a passenger and you should always wear a helmet.

MOWING THE LAWN

We tend to see a lot of projectile object injuries that stem from accidents with lawn mowers. Be sure to remove sticks and stones from the lawn prior to mowing. Always wear hearing and eye protection and shoes that provide superior projection. That means no sandals when cutting the grass.

HAPPY SUMMER!!!!

Independence Day Trial Lawyer

July 4, 2016

Janet,

President John Adams is one of my favorite trial lawyers. He, with Thomas Jefferson and Benjamin Franklin, wrote the Declaration of Independence and became our second president. Today is the 190th anniversary of his death (along with Thomas Jefferson).

He is a true American hero for standing up for the rule of law against public opinion.

He defended the British troops that shot Americans in the Boston Massacre. Defending them was very unpopular with regular newspaper stories by Samuel Adams and others against the soldiers and John Adams. (You think the press or politics is bad now – the stories then were crazy).

The incident occurred on Mar. 5, 1770, when British troops fired into a rioting crowd and killed five men. The prosecution of Captain Thomas Preston was separated from that of his men because they had different standards of guilt.

The jury assembled in the Boston Massacre trial did not include anyone from Boston. This was done to ensure a fair trial of the British. The trial was also delayed by several months to let the emotions cool down after the shooting. In the trial, it was the first time a judge used the phrase "reasonable doubt." Here is a part of Adams’ closing argument:

Gentlemen of the jury, as you are under oath to determine this cause by law and evidence; clubs they had not, and they could not defend themselves with their bayonets against so many people; it was in the power of the sailors to kill one half or the whole of the party, if they had been so disposed; what had the soldiers to expect, when twelve persons armed with clubs, (sailors too, between whom and soldiers, there is such an antipathy, that they fight as naturally when they meet, as the elephant and Rhinoceros) were daring enough, even at the time when they were loading their guns, to come up with their clubs, and smite on their guns; what had eight soldiers to expect from such a set of people? Would it have been a prudent resolution in them, or in any body in their situation, to have stood still, to see if the sailors would knock their brains out, or not? Had they not all the reason in the world to think that as they had done so much, they would proceed farther?

Captain Thomas and 6 of his men were acquitted; two others were found guilty of manslaughter, punished, and discharged from the army. The two guilty soldiers used a medieval relic, called the Benefit of Clergy, to escape the death penalty.

Interestingly, Adams wanted Independence Day to be July 2nd, the day that the Continental Congress voted in favor of independence. July 4th was the day that Congress passed the Declaration of Independence.

In a letter dated exactly 240 years ago last Sunday, he wrote to his wife Abigail that "I believe that (July 2nd) will be celebrated, by succeeding Generations, as the great anniversary Festival ... It ought to be solemnized with Pomp and Parade, with Shews, Games, Sports, Guns, Bells, Bonfires and Illuminations from one End of this Continent to the other from this Time forward forever more."

Happy July 4th!!!!

Gary Burger

Responses:

“Very interesting story, thanks. Happy Independence Day to you and yours!”

--Janet

“Great email! Congratulations on new location. Happy 4th to you too (retroactive)!”

--Jeff