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ARCHIVES: February 2015

“All Roads Lead to Rome”: Chappell, Smith & Arden Lands Another Cover!

The Winter 2015 Bulletin of the South Carolina Association of Justice is out, and Chappell Smith & Arden, P.A. is featured on yet another cover. The article, “Avenging Germanicus: the Murder Trial of Gnaeus Calpurnius Piso,” takes readers back to 20 A.D. for the trial of a former Roman consul accused of poisoning the heir to the throne of the Roman Empire.

Justice Bulletin Cover

Penned by CSA Law attorney Graham Newman, the article tells both the story of the alleged murder of one of Ancient Rome’s most beloved figures while also detailing the legal history of many of the United States’ most revered traditions, such as trial by jury, impartiality of the fact-finder, and protection of the court from public coercion.

The full text of the article may be accessed here: SCAJ_JusticeBulletin_Winter2015_Germanicus.

The Person That Damaged Me is Incorporated: He’s Protected from Liability, Right?

Corporate sings smaller

Nope! Not by a long shot! Protection from liability via incorporation is one of the great myths of law that far too many people believe. Particularly in the case of small businesses, incorporation (or organization of a limited liability company) can provide very little protection from liability.

Seasoned Plaintiff’s attorneys, like those of us at Chappell Smith & Arden, P.A., are keenly aware of the slings and arrows of corporate immunity and whether a defendant enjoys such immunity is one of their first avenues of discovery in every pending case. If you are bringing a lawsuit against a business entity, you need to ensure that your attorneys are well-versed in corporate law—otherwise you may be missing a major weak spot in your opponent’s case. If you are attempting to protect yourself from a lawsuit, you need to be aware that incorporating your business still leaves massive opportunities for you to be sued personally.

So, after incorporating, what can someone be sued for? There are two major categories.

1. Debts and Liabilities Personally Incurred on the Job

Even if someone has incorporated his business, if he is personally involved in that business he is incurring potential personal liabilities each and every day. Let’s take the hypothetical of the owner of a towing company. His name is John Doe. Mr. Doe owns one tow truck and is the only employee in his business, but wants to protect himself from personal liability. So he forms a limited liability company, John Doe Trucking, LLC.

Three years after forming his LLC, John Doe inadvertently runs a red light while towing a vehicle and crashes into another car. There is no dispute that this wreck occurred while John Doe was on the job. So is he protected from personal liability?

Not even close. Anytime you are personally performing a task, you personally assume a duty of due care. Here, John Doe breaches his duty to use due care in operating his tow truck. So he can be personally sued despite having formed a limited liability company.

This is a fact that many—if not most—single owner corporations and companies do not realize. If you are your own boss and your only employee, the incorporation of your business provides you very limited protection from personal liability.

2. Any Company Debts and Liabilities in a Poorly-Managed Business

Another fact that many businessmen and women over look are their duties to maintain corporate or company formalities after they’ve formed their business. Corporations and companies are what the law refers to as “legal fictions.” In other words, they aren’t real people, but they are treated as persons completely distinct from their owners. But here’s the trick: in order for an owner to maintain the protection he receives from his company’s incorporated status, he must himself treat his company as a completely distinct person from himself.

There are several relatively easy ways to maintain this corporate distinction but, again, many business owners are completely unaware. First, owners should be maintaining a set of financial records and accounts that are completely separate from their individual records and accounts. Company funds should be used to pay for company expenses rather than “siphoned off” by the owner. The company should maintain its solvency and adequate levels of capital to continue its business.

If a business owner is using his business as a mere façade or alter ego of himself in order to provide protection from personal liability of the business, then a plaintiff can “pierce the corporate veil” to reach the assets of the owner.

So, in view of these two rather notable exceptions to the protections provided by incorporating a business, what do business owners actually gain from incorporating a corporation or organizing a limited liability company?

There are two major categories of benefits.

1. Debts and Liabilities of the Company Itself

If a business owner is smart, he will be careful to execute as many agreements as possible between third parties and his company, only. Contractual agreements between a company and a third party are only binding against the company (so long as the business owner has been appropriately managing his business). This is a major benefit of corporate immunity.

2. Liabilities of the Company’s Employees

If an owner has incorporated his business, he is also personally immune from the negligent acts of his employees. Taking our earlier example, if John Doe hired a second employee who was driving the tow truck that caused the wreck, the only two potentially liable parties would be the new employee and the corporation. John Doe’s personal assets would be safe.

So what is the meaning of this discussion to you? Though subjects such as corporate law and personal injury law may seem miles apart, they are actually intimately connected. Regardless of what side of a lawsuit you find yourself on, you need to make sure your attorneys understand the ins and outs of corporate immunity.

Chappell Smith & Arden, P.A. is a full-service litigation team with attorneys licensed to practice law throughout South Carolina, North Carolina, and Georgia. If you have a case involving corporate liability, we would be glad to review the legal issues with you, free of charge.

I Have a Legal Claim: Can I Represent Myself?

I Have a Legal Claim: Can I Represent Myself?

Sure you can. Of course, you could also perform your own appendectomy with a kitchen knife. But that doesn’t make it a good idea.

At some point in life, every single one of us is going to possess a legal claim—be it a property damage dispute from a thunderstorm or an accident that happened at work. One of the biggest decisions that we all face is whether to hire an attorney to help us with that claim. Our law firm is asked for advice on this topic daily. We respond with a simple question: what is the price of losing?

If the price of losing your case is more costly than hiring a lawyer, then you need to be seeking legal representation. But how do you know what is the price, and the risk, of losing? Here are several categories of cases to keep in mind.

WHEN AN ATTORNEY IS LEGALLY REQUIRED

If your legal claim is on behalf of any organized business entity—such as a corporation or limited liability company—you absolutely must have an attorney. Both federal and state rules prohibit organized business from representing themselves in court. Thus, whether your business is a plaintiff or a defendant, you must hire an attorney or you will be thrown out of court.

WHEN AN ATTORNEY IS A PRACTICAL NECESSITY

Serious Personal Injury Claims

Serious personal injury claims typically involve a stay of several days in the hospital, surgery, and visits to several different healthcare providers. Medical bills can easily exceed $50,000 in such cases, much of which may not be covered by typical health insurance.

Even when liability appears clear in these types of cases, as a claimant you are forced into a position of negotiating with the defendant’s liability insurance company (who wants to pay you as little as possible), your medical providers (who want to charge you as much as possible), and your health insurance (who wants to recover as much as possible from any money you receive).

Attempting to juggle all of these competing interests–while you are attempting to recover from a serious injury–is a recipe for disaster. In such a case, representing yourself could easily leave you owing tens of thousands of dollars to medical providers with nothing to show for the pain, suffering, and possible permanent disability you have incurred.

Worker’s Compensation/Social Security Disability

Worker’s Compensation and Social Security Disability are very unique areas of the law that even most lawyers don’t understand. Litigating a claim within these two areas of the law is very rule- and form-driven. Attorneys who practice in these areas generally specialize in them.

Attempting to represent yourself in Worker’s Compensation or Social Security Disability runs the risk of you running afoul of one of the many technicalities in this area. Unfortunately, if you do mess up one of the minute details of these types of law, it often means that your claim is denied.

WHEN YOU CAN REPRESENT YOURSELF

Property Damage Insurance Claims

Property damage insurance claims are a different “ball of wax” than what we see in most personal injury cases. The “dispute,” if there is one, is over one of two issues: 1) whether your property damage is covered by your insurance policy, or 2) the value of your property damage. Now, if you have an unusually large claim–say, for a house fire–you may well want to hire an attorney to handle your case. But a typical claim–a tree branch falling on a car, for example–will not need the intervention of a lawyer.

Of course, you can always consult an attorney, should you feel that you are not getting the benefit of your bargain in a property damage insurance claim.

If you are uncomfortable deciding when you do, or don’t need legal representation, the best thing to do is develop a relationship with a law firm in your state, as they are well-versed in the state laws that almost always apply to legal claims. Firms like ours, Chappell Smith and Arden, P.A., routinely handle inquiries–free of charge–from individuals who don’t know if they have a claim or don’t know if they need an attorney. The best rule of thumb, however, is “what is the price of losing?” If the price is one you aren’t willing to pay, then likely you should be speaking to an attorney.

Court of Appeals Warns Trial Attorneys: Preserve Your Objections!!!

Objection

“You are protected on the record.” These are words every trial practitioner has heard countless times. To a lawyer, “protected on the record” means a trial judge disagrees with you, but you have registered your objection to the judge’s decision and may use that objection, after trial, as a basis to appeal the final judgment. But in an opinion handed down yesterday, the South Carolina Court of Appeals warns trial attorneys that such words may not be sufficient to preserve one’s right to appeal.

In State v. Rivers, the Court of Appeals reiterates the long-standing rule that “[i]n order for an issue to be preserved for appellate review, it must have been raised to and ruled upon by the trial court. Issues not raised and ruled upon in the trial court will not be considered on appeal.” The appellate court found that Rivers had not properly preserved an evidentiary objection and thus could not raise the issue on appeal. In and of itself, the ruling is not remarkable. The circumstances surrounding the ruling, however, underscore the great importance of trial attorneys in all areas of practice properly registering objections during trial.

In 2011, a Chesterfield County grand jury indicted Rivers for “Homicide by Child Abuse” following the death-by-asphyxiation of Rivers’s four month-old son. The prosecution sought to present evidence not only of the injuries that led to the child’s unfortunate death, but also of previous injuries–rib fractures–that suggested the child had been physically abused seven to fourteen days prior to his death. Prior to trial, Rivers’s attorney objected to the admissibility of the evidence of preexisting injuries as the State possessed no evidence that such injuries were caused by Rivers. The trial court responded to the pretrial objection by stating that both the State and Rivers’s attorney had “clearly stated their positions” and continued as follows:

“These child cases are getting a little different treatment than what we normally are use[d] to involving adult cases and other type criminal cases. You’re protected on the record on that.”

The tenor of the trial court’s response to Rivers’s objection seems to implicitly deny the request to exclude the evidence, but the Court of Appeals notes that the court never actually ruled upon the motion. Nevertheless, the words “you’re protected on the record” acted as a trap for Rivers’s attorney as the case proceeded to trial, the disputed evidence was introduced, and the objection to its admissibility was never renewed. Unfortunately for Mr. Rivers, he was convicted of his charges and is now serving a lengthy prison sentence.

Rivers’s attorney appealed his conviction on the basis of the disputed evidence of preexisting injuries to the body of the infant victim. And, in fact, the Court of Appeals appears to agree with Rivers that such evidence never should have been presented to the jury as even the State “admitted its strongest argument was the issue presented is unpreserved.” But the Court of Appeals could not reach the question of whether Rivers’s conviction should be overturned because a pretrial evidentiary ruling–even one that is clear and unequivocal–“is not final; unless an objection is made at the time the evidence is offered and a final ruling procured, the issue is not preserved for review.”

Luckily for Mr. Rivers, this issue may be able to be raised in a post-conviction relief proceeding once his appeals have been exhausted. But this case stands as a stern reminder to trial practitioners to ensure that all objections are properly preserved for appeal, lest they be forever waived.

Chappell Smith & Arden, P.A. is comprised of attorneys licensed to practice law in the states of South Carolina, North Carolina, and Georgia. The firm’s attorneys possess extensive trial experience in civil court, criminal court, Worker’s Compensation, Social Security Disability, and the state and federal appellate courts.

Mark Chappell Delivers ABOTA “Masters in Trial” Closing Argument

Mark Chappell, founding member of Chappell Smith and Arden, P.A., delivered the closing argument for the Plaintiff’s case in the prestigious American Board of Trial Advocates “Masters in Trial” competition last Friday. The mock-trial, held at the University of South Carolina law school, featured many of the most distinguished courtroom advocates in South Carolina.

Chappell from the front

Mark Chappell has been practicing law for 30 years and has tried hundreds of cases to a jury verdict. He leads the law firm’s litigation team and serves as a board member to both the South Carolina Association of Justice and the American Association of Justice.

ABOTA is an invitation-only organization of attorneys committed to the strength and preservation of the civil justice system. Attorneys receiving an invitation to join ABOTA are admitted only after passing through a rigorous screening process to ensure that they are of high personal character and honorable reputation in their communities.

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