Previous month:
October 2011
Next month:
December 2011

How to use Google's search by image function

Here are step by step instructions to use Google's search by image function, from Slaw.  Basically, go here and upload your image by clicking on the camera icon.  Maybe someday soon if you somehow acquire a photo of a party or a witness, you will be able to run a search by image on it and find things posted on the internet under a user name. Right now, I don't think Google has its facial recognition software running with this seach.

Hat tip to Future Lawyer for the link.

Interactive map of U.S. highway fatalities 2001-2009

There were over 369,000 road accident fatalities in the U.S. between 2001 and 2009, and there is an interactive map showing the location of each one.    I'm not sure if this is useful information, unless perhaps you are handling a motor vehicle accident at a particularly dangerous intersection, and you may want to implead the governmental entity responsible for the road design.  If so, don't forget to give the required statutory notice of the claim. 

Hat tip to Simon Rogers of the Guardian and BeSpacific for this link.


More maps of traffic fatalities:

NHTSA maps (showing Maryland)

Google Earth Map of Maryland traffic fatalities

None of these seems as useful as the Crashstat map for New York City.

Why isn't there a Crashstat map for every State?


Plaintiff's bankruptcy filing may create defenses in civil litigation

A search should be conducted early in every case to determine if the plaintiff has filed for bankrtupcy. There are a number of good reasons to do so.

DRI published a recent article on its website concerning the defense of judicial estoppel arising from the plaintiff's failure to disclose his or her claim as an asset in the bankruptcy proceedings.  There is quite a bit of case law on judicial estoppel arising from bankruptcy. 

Another way in which bankruptcy proceedings can negatively impact a plaintiff's suit was recently illustrated by the case of Kocher v. Campbell, a decision of the Virginia Supreme Court that came out last June.  In Kocher, the Court considered the issue whether the plaintiff in an action to recover damages for personal injuries had standing to maintain his action after filing a petition for bankruptcy, causing his claim to become an asset of his bankruptcy estate.  The Court held that the plaintiff lacked standing, and dismissed the case.

The plaintiff was involved in a motor vehicle accident, and before filing a lawsuit the plaintiff filed a voluntary Chapter 7 petition in bankruptcy.  His petition failed to disclose his personal injury claim as an asset in Schedule B, and failed to list it on Schedule C as an exempt property.  About three months later, plaintiff received a standard discharge in bankruptcy.

The plaintiff then filed his civil action based on the motor vehicle accident.  This was nonsuited then refiled and served.  The defense filed a motion for summary judgment on the grounds that the plaintiff lacked standing to bring the action.  During the hearing on the motion, the plaintiff nonsuited the action again.

The plaintiff then persuaded the bankruptcy trustee to file a motion in bankruptcy court to reopen his bankruptcy case, which was granted.  Then the plaintiff obtained leave to file amended schedules, listing the personal injury action and claiming it as exempt property.  The bankruptcy court ruled that the plaintiff had properly exempted the cause of action.

Next, the plaintiff filed his civil suit for the third time. The defense again moved for summary judgment, asserting the lack of standing and the statute of limitations.  The trial court denied the motion, but certified the issue for an interlocutory appeal pursuant to a Virginia statute, and the Virginia Supreme Court awarded the defendant an appeal.

The Virginia Supreme Court reversed, holding that the action was a nullity at the time of its filing and the statute of limitations had run before it was refiled the third time, and dismissed the case.

The Court reasoned first that as a result of the plaintiff's filing a petition for bankruptcy, his inchoate personal injury claim passed to his bankruptcy estate.  Thereafter, the cause of action was one that could only be asserted by the trustee in bankruptcy, unless and until it was restored to the plaintiff by the bankruptcy court.  Here, the cause of action remained a part of the bankruptcy estate until the bankruptcy court ordered it exempted over five years after the motor vehicle accident.  All three complaints were filed during the period when the plaintiff lacked standing to assert the cause of action because it remained in the bankruptcy estate, enforceable only by the trustee. 

The Court rejected the plaintiff's argument that the final order closing the reopened bankruptcy case had the effect of abandoning all property remaining in the estate, and that abandonment causes the abandoned property to revert back to the debtor retroactively, as if the bankruptcy had never occurred.  The Court reasoned that the exemption that preceded the final order had already removed the plaintiff's cause of action from the bankruptcy estate.  Second, under Virginia law concerning standing, an action filed by a party who lacks standing is a legal nullity.  Standing acquired after the statute of limitations has run cannot be retroactively applied to cure the lack of standing that existed when the action was filed.

How a similar scenario would play out in other States would depend on the State law where the action is pending.  The most important step, however, is to run the search, and find out whether there has been a bankruptcy filing. 

Trouble and how not to meet it: Landrum v. Chippenham and Johnston-Willis Hospitals

As a young associate, I once read an ABA pamphlet on how to manage a law practice, and one of the recommendations was to have a regular meeting of all attorneys, at which one of the agenda items would always be "trouble and how to meet it."   The idea is that usually you can see trouble coming at you from down the road, and that's precisely when an attorney needs the collective wisdom and experience of the firm.  Trouble and how NOT to meet it is illustrated by the recent decision of the Virginia Supreme Court in Landrum v. Chippenham and Johnston-Willis Hospitals, Inc.

Landrum was a Virginia medical malpractice case in which the plaintiff was represented by an out-of-state counsel from Missouri, with Virginia local counsel.  The Virginia Supreme Court affirmed the trial court's exclusion of the plaintiff's expert witness designations for failure to have them signed by local counsel, and the summary judgment in favor of the defense based on the plaintiff's lack of expert testimony.

The trouble was coming down the road for a couple months before the end.  Plaintiff's intial effort at expert witness designations failed to state the substance of the facts and opinions to which the experts were expected to testify and a summary of the grounds for each opinion.  The defense moved to exclude the expert witnesses and for summary judgment.

Plaintiff then attempted to cure the deficiency by providing the expert witnesses' reports, but failed to supplement the designation.

There was a hearing before the Circuit Court on the defense motions, in which the Court warned:

THE COURT: . . . I will give you seven days from today, and I'm going to give you a time that you file your answer to these interrogatories and you file a copy of it in the clerk's office and you do it in the proper manner. I'm not going to sit here and lecture how you're supposed to do it.
. . . .
I will tell you, sir, if you fail to do that, I will dismiss the case after that.

Plaintiff's next effort at filing an expert witness designation also did not comply with the Virginia Rules, as it was not signed by Plaintiff's local counsel, and the defense again moved to exclude the plaintiff's expert witnesses and for summary judgment.

This time, the trial court granted the motions, and dismissed the case with prejudice. 

About two full months passed between the first effort at filing expert witness designations, and the last.  The trial judge gave the plaintiff a week to file a compliant expert witness designation, after delivering a clear warning to comply with the Virginia Rules.  There was time to reread the Virginia Rules, and conference with Virginia counsel. 

Unfortunately, this was a very harsh result in a medical malpractice case, and the Virginia Supreme Court granted an appeal -- a rare and golden opportunity for claim repair.  However, as noted here, plaintiff failed to comply fully with the Virginia appellate rules as well, and the appeal did not go well.  Now it is big trouble.

The reason why in Virginia, local counsel must sign all the pleadings, is that being local counsel in Virginia is not regarded as a pro forma responsibility.    As the Virginia Supreme Court has stated:

The purpose of the Rule is to facilitate the efficient administration of court business by permitting a court to deal exclusively with local counsel, upon whom all notices and processes may be served. It is necessary that our courts have access to attorneys of record who are personally subject to their supervisory control rather than risk delays in communicating with foreign attorneys who may be inaccessible, uncooperative or unfamiliar with the rules and statutes governing the trial of cases in Virginia.

Ortiz v. Barrett, 278 S.E.2d 833 (Va. 1981).