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ARCHIVES: March 2015

Solving the Cause of an Interstate Tractor Trailer Collision

As we tragically saw yet again this weekend, tractor trailers can be instruments of death when placed in the hands of unqualified or irresponsible people.

Tractor trailers go by a wide variety of names: “trucks,” “eighteen wheelers,” or perhaps “big rigs.” But they all have one thing in common. Tractor trailers are vastly larger and heavier than traditional automobiles and thus often cause death and destruction when they are handled negligently.

Sadly, the enormity of the destruction caused by tractor trailer wrecks often leaves the Interstate  littered with debris, making it extremely difficult to determine the cause of the collision. Without a sound determination of the wreck’s cause, recovery from the responsible party for medical bills, bodily injury, or loss of life is very challenging.

Most trucking companies have expert accident reconstructionist firms on retainer. These individuals are dispatched to the scene of the collision within days of its occurrence to investigate and begin building the defense of the tractor trailer company. These investigators speak with police officers, witnesses, and even private citizens involved in the crash to begin crafting the strongest defense possible–and to avoid paying any compensation to those people injured by the possible negligent or reckless acts of their drivers. As a result, it is absolutely necessary that the lawyers representing the victims of tractor trailer collisions respond just as quickly and investigate just as thoroughly to protect the rights of the innocent people injured, maimed, or killed in such wrecks.

Chappell Smith and Arden, P.A. takes a very aggressive approach to investigating catastrophic tractor trailer collisions. We have handled numerous deadly Interstate accidents caused by eighteen wheelers and are currently litigating a fatal crash that occurred in Florence County, South Carolina. Interstate 95, in particular, is an infamously dangerous highway known for heavy trucking traffic and high speeds as eighteen wheelers, hauling goods up and down the eastern seaboard, race to deliver their contents on time.

Our trucking litigation group is led by Hugh McAngus, Jr. and Mark Chappell. Hugh and Mark respond to a catastrophic trucking case just as the eighteen wheeler companies do–they immediately retain the best experts in the business to begin reconstructing the cause of the accident to determine exactly what happened and exactly who is at fault.

Accident reconstructionists are trained in the forensic analysis of wreck scenes. They have the ability to take the literal pieces of a truck collision and recreate exactly what happened. Below is an example of a reconstructed video of an eighteen wheeler collision that occurred on Interstate 26, near its intersection with Interstate 95.

As you can see, in this case a wreck had occurred between several cars prior to the tractor trailer approaching the scene. From analyzing the damage to the various cars, the debris field, and the witness testimony, our accident reconstructionist was able to determine that the eighteen wheeler attempted to “thread the needle” of the wreck scene, rather than bringing his truck to a stop. As a result, the truck driver collided with several vehicles and caused tremendous bodily injury to the occupants of those cars.

Had we not acted quickly to retain this expert, investigate the tractor trailer collision, and aggressively litigate this claim on behalf of our client, however, the evidence needed to prove the fault of the tractor trailer driver may have been lost. In this specific case, the trucking company denied all liability and our firm was forced to file a lawsuit. But our expert’s conclusions were strongly rooted in the evidence and the case settled before trial.

The almost limitless resources of trucking companies and the insurance companies that represent them mandate this sort of aggressive representation. If you or anyone you know has been hurt in a trucking accident, do not hesitate–make sure you or they are in the hands of experienced attorneys that handle this sort of claim. Even a day’s delay could make a difference.

Hugh McAngus, Jr. and Mark Chappell are partners at Chappell Smith and Arden, P.A. Hugh’s law practice focuses  upon representing individuals injured in tractor trailer collisions and he is a member of the national trucking litigation section of the American Association for Justice. Mark is one of the firm’s founding partners and focuses his practice upon representing catastrophically injured clients in a wide variety of contexts. The law firm has offices throughout South Carolina, including Columbia, Florence, Rock Hill, and Aiken. 

Disturbing Statistics on Race and Awards of Child Support

An article today from FiveThirtyEight (a Chappell Smith and Arden  favorite) reveals a disturbing trend in child support awards across the country: White custodial parents receive awards of child support at a substantially higher rate than do Black and Hispanic parents.

The statistical gurus at FiveThirtyEight employed the 2011 census data from the U.S. Census Bureau to analyze various comparative figures related to child support awards granted by family courts across the United States. What they found was startling: White custodial parents were 15.7% more likely to receive awards of child support than Black custodial parents and 7.9% more likely than Hispanic custodial parents.

Chappell Smith and Arden, P.A. Child Support Data

The author of the article notes that “race and marital status are probably related” as marriage ratios are higher among White parents than among Hispanic and Black parents. However, this point begs two questions.

First, why does the marital status of a custodial parent have such a notable impact on the prevalence of child support? And second, even those custodial parents who have never been married (and thus had their child out-of-wedlock and never subsequently married) receive child support at a rate that is 3.2% greater than Black custodial parents (a statistical category that would include both divorced, separated, and newly married parents).

There may well be a race-neutral explanation for these disparities (and my areas of focus certainly do not encompass family law), but I can’t find one on the basis of this article, alone.

Graham Newman, a Chappell Smith & Arden, P.A. attorney, focuses his practice on class actions and complex litigation. Graham currently teaches a class at the University of South Carolina Honors College on the 14th Amendment’s Equal Protection Clause.

It’s Friday Afternoon…

It’s Friday Afternoon…

.Neptune says “It’s Friday afternoon. I’ve been good. Now I deserve a treat!”

Neptune on a Friday

The Role of the Family Lawyer in Mediation

Chappell Smith & Arden, P.A. Shawn ReevesThe Rules of Professional Conduct define a lawyer’s role to the client as both an advocate AND a counselor. There is no more important place to serve in both of those roles than at mediation.

Although advocating at mediation is different from advocating in the courtroom, there are certain crucial ways for a lawyer to advocate for his or her client at mediation.

First, the lawyer needs to remember the setting – mediation, not trial. What works in advocating at trial may not work so well in advocating for the client at mediation.

One way to advocate for the client at mediation is to be sure you are communicating clearly with the mediator. Communicate the issues of the case and client’s position with mediator. Be clear, with brevity.

As a mediator, I commonly walk into a room where the lawyer and client are sitting, and the lawyer wants to do all the talking and arguing of the client’s case, as if I were the judge. Honestly, this can be a waste of time.

That said, it is helpful for the lawyer (as advocate) to construct the case for the mediator from the client’s perspective or benefit – tell the mediator the client’s story.

Another time when advocacy is crucial is when mediator is not understanding something. Maybe the client miscommunicated something to the mediator. Maybe the mediator just isn’t getting it. When the mediator is not understanding something crucial, the lawyer needs to speak up and guide the mediator to understanding.

Another time when the lawyer must advocate is when the mediator is wrong. Maybe the mediator is operating on a misunderstanding about the law. Or about how the law applies to the facts of the case. The lawyer needs to GENTLY show the mediator toward a correct understanding.

In addition to being the client’s advocate, the lawyer is the client’s counselor. It’s the lawyer’s role to give sound advice to the client to help the client make good decisions based on the client’s particular situation.

Help the client understand the law.

Help the client understand the cost of continued litigation.

Be practical, be pragmatic, and help the client be pragmatic.

Prepare the client for mediation ahead of time. Describe the mediation process to the client.

Gather necessary information prior to mediation to enable client to make informed decisions at mediation. Use spreadsheets, graphs, charts to help the client understand.

Help the client understand what he or she is agreeing to.

Finally, be open to and prepared for out-of-the-box suggestions by the mediator. Help the client understand these suggestions and the legal ramifications of such settlement possibilities.

These are just some ways the lawyer served as both advocate and counselor at mediation. I’d enjoy hearing other ideas on this topic.

Chappell Smith & Arden, P.A.‘s guest blogger, Attorney Shawn L. Reeves, blogs on topics involving family law, which is an area that those of us at CSA do not handle. But we are dedicated, through this blog, to advancing the conversation in all areas of the law and are thus proud to bring you Shawn’s commentary. Enjoy!

NY Times: Servicemembers Denied Rights, Forced into Arbitration

Charles Beard, a sergeant in the Army National Guard, was on duty in Tikrit, Iraq, when repossession men in California took his family car. (Credit Matt Black for The New York Times)

Charles Beard, a sergeant in the Army National Guard, was on duty in Tikrit, Iraq, when repossession men in California took his family car. (Credit Matt Black for The New York Times)

Yesterday, in a front page article, the New York Times detailed the damage wrought by mandatory arbitration on the legal rights of our men and women in uniform. Those on military active duty have numerous financial protections under the Servicemembers Civil Relief Act (known as the “SCRA”). These rights include protections from foreclosure or repossession while deployed. But mandatory arbitration clauses in financial contracts–such as mortgages or car loans–often make it difficult or impossible for a servicemember to sue to enforce such rights.

Arbitration clauses are portions of contracts that require any dispute stemming from that contract to be resolved by a panel of arbiters, rather than a court. Most consumers are unaware that such clauses exist, according to a report from the CFPB released last week. Yet financial institutions, in particular, often employ arbitration and for good reason: consumers bringing financial claims before arbitration panels succeed only about 20% of the time, even when invoking military rights such as those in the SCRA.

“Mandatory arbitration threatens to take these laws and basically tear them up,” said Col. John S. Odom, Jr., a retired Air Force lawyer now in private practice in Shreveport, La. High-ranking Defense Department officials agree, telling Congress that “service members should maintain full legal recourse.”

Last year, Sen. Lindsey Graham of South Carolina introduced a bill in Congress that would ban the use of mandatory arbitration in resolving SCRA-related disputes. But the financial industry’s powerful lobbyists objected and the bill never made it out of committee. As a result, the SCRA rights of our military men and women continue to be threatened by mandatory arbitration.

Senator Graham has promised to reintroduce the same bill this session.

Graham Newman is an attorney with Chappell Smith & Arden, P.A. and has significant experience litigating the Servicemembers Civil Relief Act, arbitration disputes, and class actions pertaining to both. His successes in these fields include the case of Rowles v. Chase Home Finance, LLC, a SCRA class action that settled for $56 million on behalf of approximately 10,000 men and women in uniform.

Class Actions are Working: What the CFPB Report Tells Us

Chappell Smith and Arden, P.A. Courthouse Class Action

 

The Consumer Financial Protection Bureau released a monumental report last week which firmly establishes that  class actions are benefiting the American consumer.

The full report is a 728-page analysis of mandatory arbitration in the financial industry and its effects on both lenders and borrowers. The CFPB was mandated, within the Dodd-Frank Wall Street Reform and Consumer Protection Act, to conduct a thorough study of arbitration and the other traditional means of resolving disputes between lenders and borrowers. The agency reviewed extensive data from lending disputes filed during the years 2010, 2011, and 2012.

The results are in. Arbitration overwhelmingly favors lenders while class actions prove to be an effective–and remarkably efficient–way for borrowers to enforce their rights.

Here are some of the key conclusions:

Amount of Litigation

  • From 2010 through 2012, an average of 616 individual AAA cases were filed per year for six product markets combined: credit card; checking account/debit cards; payday loans; prepaid cards; private student loans; and auto loans.
  • From 2010 to 2012, for the same six product markets covered in the arbitration analysis, and average of 187 putative class cases were filed per year — that is, cases that were filed in federal court or in selected state courts by at least one individual who sought to sue on behalf of a class.

Relative Success Rates of Borrowers

  • Of the 341 cases filed in 2010 and 2011 that were resolved by an arbitrator and where the CFPB was able to ascertain the outcome, consumers obtained relief regarding their affirmative claims in 32 disputes. Consumers obtained debt forbearance in 46 cases (in five of which the consumers also obtained affirmative relief). This is a startlingly low total success rate: 22.9% The total amount of affirmative relief awarded was $172,433 and total debt forbearance was $189,107. The average financial relief obtained by each litigating consumer was $4,635.
  • Of the class actions filed between 2010 and 2012, 25% resulted in individual settlements and 17% resulted in class settlements for a total success rate of 42%

Speed of Litigation

  • Arbitration was relatively fast. Where there was a decision on the merits by an arbitrator or where the record indicates that the case was settled, the decision generally was issued or the settlement reached within five months after the case was initiated.
  • When they were not transferred to or filed in MDL proceedings, federal class cases filed in 2010 and 2011 closed in a median of 218 days and 211 days, respectively, from the date of the filing. Class cases transferred to or filed in MDL proceedings in 2010 and 2011 were markedly slower, at a median of 758 days and 538 days, respectively. State class cases filed in 2010 and 2011 were also somewhat slower, at a median of 407 days and 255 days, respectively.

Amount of Compensation Received by Borrowers

  • Of the 341 arbitration cases filed in 2010 and 2011 that were resolved by an arbitrator and where the CFPB was able to ascertain the outcome, the total amount of affirmative relief awarded was $172,433 and total debt forbearance was $189,107. The average financial relief obtained by each litigating consumer was $4,635.
  • The CFPB could identify class size or a class size estimate in around 78% of class actions filed from 2008 to 2012. Based on these cases only, estimated class membership across all five years was 350 million. Excluding one class action involving 190 million estimated class members, the total class size for the cases where we were able to find data was 160 million. The settlement value of these classes included more than $2 billion in cash relief including fees and expenses and more than $600 million in in-kind relief, for total compensation of $2.6 billion. These figures represent a floor because a number of settlements also required companies to change business practices. The average financial relief obtained by each litigating consumer was $7.43.

Attorneys Fees

  • The CFPB was not able to track attorneys fees of individual litigants in arbitration because such fees are not approved by the arbitrating panel. Approximately 60% of litigants in arbitration were represented by counsel, however.
  • All class actions analyzed reported attorneys’ fee awards. Across all settlements that reported both fees and gross cash and in-kind relief, fee rates were 21% of cash relief and 16% of cash and in-kind relief. The CFPB was able to compare fees to cash payments in 251 cases (or 60% of the data set). In these cases, of the total amount paid out in cash by defendants (both to class members and in attorneys’ fees), 24% was paid in fees.

The results of this study reveal–quite clearly–why the financial industry would like to use mandatory arbitration agreements to eliminate consumer class actions. Class actions have proven to be vastly more successful than arbitration in terms of relative rates of success and total dollar financial relief obtained. Class actions have also provided a vehicle of relief to consumers with much smaller financial “stakes”–claims which would not economically justify individual litigation before an arbitration panel.

Furthermore, the economies of scale produced by the class action mechanism allow the attorneys’ fees approved by the courts to be about half of that in a traditional individual case (20% to 40%).

Now, the CFPB did conclude that arbitration is a faster means of resolving a dispute. For consumers, however, this almost always means its a faster way to a losing decision.

Graham Newman practices in the areas of class actions, complex litigation, and consumer advocacy with Chappell Smith & Arden, P.A. 

Chappell, Smith & Arden’s Top 5 Blogs (excluding us, of course!)

Graham Newman: setting the record straight.

Graham Newman: setting the record straight.

So what are the best blogs out there for those of us interested in the law?

First of all, if you are truly interested in the law you must understand it for what it is: a set of rules designed to promote fair play throughout society. Fair enough: but that means that–if you are truly interested in the law–you also must know what is taking place in society!

To make a long story short, our list of Top 5 Blogs is not limited to those focusing on the law. And away we go:

1. Volokh Conspiracy

Volokh Conspiracy was founded by Eugene Volokh, a professor at UCLA law school who has the unique distinction of being both a computer scientist and an expert on the First Amendment. His blog existed as an independent entity for a decade or more before being subsumed within the Washington Post. But don’t be fooled; Volokh Conspiracy has a decidedly right-of-center (if not libertarian) bent. All contributions, however, are meticulously researched and difficult to contradict. Guest bloggers now number over 10 and include many influential law professors in topics as diverse as the Commerce Clause and the Second Amendment.

Without hesitation, we give Volokh Conspiracy our First Place vote.

2. SCOTUSblog

SCOTUSblog has become an indispensable piece of journalistic coverage of the United States Supreme Court. In fact, but for its limitation to cases and issues pending before the Supreme Court, we would award SCOTUSblog our top spot. Many of the contributors to the site’s posts are practicing attorneys before the Supreme Court, itself. Others are life-long journalists with experience covering the Court’s decisions.

Politically? Good luck detecting a partisan leaning from this website. It provides excellent factual and legal analysis for almost every single case pending before the highest court in the land.

3. Vox: CEPR’s Policy Portal

So: what wins a case? Evidence. And for many of the major legal issues pending before our states’ and nation’s courts, there is no better place to get cutting-edge evidence than VoxEU. Though focused mainly on economic developments in the European Union, VoxEU publishes–on a daily basis–global research on a wide variety of economic issues that would be accepted in a court of law as a “learned treatise.” The site is literally full of data to support (or defeat) your case. If you aren’t aware of it, you better hope your opponent isn’t, either.

4. Calculated Risk: Finance & Economics

But what about finance and economics solely within the American sphere? If that’s what you are looking for to support your legal position, begin your search with Calculatedriskblog.com. This blog primarily focuses upon the banking, real estate, and employment sectors of the American economy. Over the past 8 years, of course, these sectors have been the driving force in all of our lives. Want good referencing and fair commentary on these issues? This site is your source.

5. Political Wire

And finally, though we lawyers might want it to, the practice of law will never be divorced from the politics of the day. The best–and most even-handed–political blog in the land is Taegan Goddard’s Political Wire. The site reaches back into the early days of the Internet and carries with it the credibility of having evolved from the Clinton/Gingrich era, to the Bush/Pelosi era, to the Obama/Boehner era. Politics comes and goes, but Political Wire stays the same.

Graham Newman, an attorney with Chappell Smith and Arden, P.A., focuses his practice on non-traditional litigation in areas such as class actions and statutory claims. He also enjoys blogging on all areas of the law.

“Simple” Divorce

Chappell Smith & Arden, P.A.‘s guest blogger, Attorney Shawn L. Reeves, blogs on topics involving family law, which is an area that those of us at CSA do not handle. But we are dedicated, through this blog, to advancing the conversation in all areas of the law and are thus proud to bring you Shawn’s commentary. Enjoy!

I often receive calls from potential clients telling me that they just need a “simple” divorce. When I hear that, I immediately have to ask questions to find out what is meant by a “simple” divorce. If there is any dispute as to the divorce, children, property, or support, then it is potentially not a “simple” divorce. However, where no such disputes exist, then indeed the divorce process, while not necessarily “simple,” is not so complicated. For purposes of this blog post, I will refer to these as uncontested divorces.

The uncontested divorce process in South Carolina begins with the filing of a Summons and Complaint for divorce, usually on grounds of a one year separation. The Complaint alleges the following: (1) that the parties have met the jurisdictional requirements to be able to file for divorce in South Carolina, (2) that the parties have resided separate and apart without cohabitation for at least a year, and (3) that the parties have resolved all issues relating to children, property, and support between themselves.

After the Summons and Complaint have been filed, they have to be served on the Defendant, the other spouse. If the other spouse is especially cooperative, he or she can accept service without the requirement of service by process server. If that spouse does not contest the allegations of the Complaint, then the divorce hearing can be scheduled.

At the uncontested divorce hearing, the parties will testify to the judge that they have no contested issues relating to children, property, or support. They will each present Financial Declarations to the judge at that hearing. If there is a formal agreement as to children, property, or support, then the parties will ask the judge to approve any such agreement.

Also at the uncontested divorce hearing, the parties will request that the judge grant a divorce. To do that on one year separation grounds, one of the parties and a corroborating witness will testify that the parties have been separated for more than a year.

While this process is not too complicated, the parties must comply with the law and with court rules for the judge to finally grant the divorce. Therefore, having an attorney complete this process is advisable. However, for those who do not retain an attorney, the South Carolina Judicial Department has all the necessary forms available for free on its website.

Takin’ It to the Streets: How Class Actions Empower Personal Liberty

 

The central function of the class action in American law is to bestow upon an individual the power of an army of similarly situated individuals in order to vindicate his rights against an otherwise overwhelming opponent. The class action finds its roots in Anglo-American notions of equity and remains a vital tool for protecting individuals in our court system today.

Congress, in enacting the 2005 Class Action Fairness Act, observed the following in the Act’s preamble:

“Class-action lawsuits are an important and valuable part of the legal system when they permit the fair and efficient resolution of legitimate claims of numerous parties by allowing the claims to be aggregated into a single action against a defendant that has allegedly caused harm.”

The need for a mechanism to promote “fair and efficient resolution” of individual claims stems from two realities often seen in a corporate-consumer context: 1) corporations have exponentially greater resources than a consumer to fight a legal case; and 2) the bare costs of bringing a legal action often extinguish any benefit an individual consumer might receive from his case.

Let’s take an example. John Doe buys a top-of-the-line lawn mower from ACME Industrial. The purchase price is $400. But little does Doe know, ACME–in an attempt to cut costs and raise its profits–has used cheap plastic parts in all of its lawn mower engines. The parts survive the first few months of service, but inevitably break on every single one of the ACME lawn mowers.

John Doe is incensed. He has been cheated out of $400. Under South Carolina’s laws, he could successfully sue ACME for the damages he has incurred.

But does it make sense for John Doe to bring his individual claim? Honestly, no. Merely filing a complaint in South Carolina will cost Doe $150. A traditional 1/3 attorney’s fee will cost Doe another $133. A single deposition transcript will run $300. Translation: in even the simplest of cases, Doe’s possible recovery from ACME will be eliminated almost as soon as he files suit.

Here’s where the class action empowers Doe to fight for his individual rights. Let’s say ACME Industrial has sold 10,000 of its inherently defective lawn mowers. In a class action, Doe can file on behalf of himself and all other individuals who have similarly suffered at the hands of ACME’s defective design. Now, the amount in controversy is $4 million instead of $400. Filing costs are now a mere fraction of this potential recovery and the attorney’s fee is spread over the entirety of the class.

Without the threat of the class action, ACME would be free to operate without the threat of being sued because it would know no customer would have a financial incentive to do so. With a class action, however, an individual customer is empowered to fight for his own rights by banding together with others. As such, the class action plays an important role in promoting individual liberty.

Graham Newman, an attorney with Chappell Smith and Arden, P.A., focuses his practice on non-traditional litigation in areas such as class actions and statutory claims.

The Primary Issues in a Divorce Case

Chappell Smith & Arden, P.A. is excited to introduce its first guest blogger, Attorney Shawn L. Reeves. Shawn will  be blogging on topics involving family law, which is an area that those of us at CSA do not handle. But we are dedicated, through this blog, to advancing the conversation in all areas of the law and are thus proud to bring you Shawn’s commentary. Enjoy!


More often than not, when a potential client contacts me about a divorce, the thing he or she focuses on is the reason for seeking the divorce, the ground for the divorce. However, the basis of petitioning for the divorce is generally the thing the lawyer spends the least amount of time dealing with. The other issues of a divorce case usually require far more work. So I thought I would use this blog post to explain the primary issues of a divorce case.

No doubt, the ground for divorce is important. Without it, the parties would not be in the courtroom in the first place. In South Carolina, we have five grounds for divorce: (1) adultery, (2) habitual drunkenness or drug use, (3) physical cruelty, (4) desertion for more than a year, and (5) separation without cohabitation for more than a year. When separated spouses cannot establish one of those five grounds, they can file their case as a separate support and maintenance action, in which they can also deal with the primary issues of the marital litigation.

The divorce is not something that the parties can agree upon. It is rather granted only upon proving the ground for divorce to the judge. So there is no real working out the divorce issue itself between the parties. What then do the lawyers and parties primarily fight and negotiate over? What takes up most of the lawyers’ time? What issues are covered in mediation? I usually describe those issues in three parts: (1) the children, (2) the property, and (3) the support.

As to the children, the primary issues are custody, visitation, parental restrictions and guidelines, and child support. How will the children’s time with each parent be divided? Where will they spend summers and holidays? Who will make decisions as to the children? Who will pay child support and how much? Who will provide health insurance? How will out-of-pocket medical expenses be paid? How will future romantic partners be introduced to the children?

As to property, the primary issues are defining what is and is not marital property, deciding what percentages the marital property is to be split, and deciding who is to receive specific pieces of property and accounts. What property did either party own prior to the marriage? Was property acquired by either party by gift or inheritance? How will retirement accounts be divided?

As to support, the primary issues are the type and amount of support or alimony, any limitations or rules for modification or termination of support, and security for the future such as life insurance. With alimony, the primary factors to consider are the duration of the marriage and the relative incomes of the parties. If alimony is warranted, how much is the need for alimony and how much can the paying spouse pay?

There are, of course, any number of other issues to be dealt with in a divorce case, depending on the specific circumstances of the case. For example, in some cases, a big issue can become who will pay the attorney’s fees and costs of the divorce. However, the big three categories remain the children, the property, and the support.

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