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Richard Morefield Appointed to Chair TIPS Trial Techniques Committee

May 30, 2017 No Comments

Attorney Richard Morefield has been appointed as Chair of the TIPS Trial Techniques Committee for the 2017-2018 membership year. As chair, Rick will lead a diverse group of trial attorneys and law students from across the United States toward the goal of enhancing trial and advocacy skills for the more than 2000-member committee. The Trial Techniques Committee is the largest committee of The Tort Trial and Insurance Practice Section (TIPS) of the American Bar Association (ABA). TIPS provides education, training, and networking opportunities to its more than 20,000 members which includes lawyers, judges, and law students.

Appeals: Kansas Supreme Court

March 7, 2016 No Comments

Next in Morefield Speicher Bachman’s series on law for non-lawyers, is a discussion about appeals in Kansas. This article will look at what the appellate courts do and the differences between the two levels of appellate courts. On March 9, 2016, Kansas residents will get the opportunity to attend a session of the Kansas Supreme Court at historic Topeka High School. The Court will hear oral arguments in several cases followed by an informal reception to meet the public. For more information about the special Kansas Supreme Court evening session at Topeka High School, visit the Court’s website. This is a great opportunity for students with an interest in the law and for the general public to see the Kansas Supreme Court in action. How Do Cases Get to the Kansas Supreme Court? There are two levels of appellate courts in Kansas – the Court of Appeals and the Supreme Court. Despite what many people think, the parties to a lawsuit do not have the ability to appeal every decision made by a lower court. After a trial, if one of the parties believes that the District Court made an error of law that affected the outcome of the case, that party can file an appeal in the Kansas Court of Appeals. The appealing party files a document called a Notice of Appeal. Each party then files a brief explaining their position in the case to the Court of Appeals. After the briefs have been filed, the Court of Appeals schedules an oral argument, usually before a panel of three judges. At the oral argument, each party typically has 15 minutes to present their case although the Court will permit up to 30 minutes per side in special cases. In most cases, the appellate judges will pepper the lawyers with questions about the case and about the law. This process allows the Court to clarify the positions of the parties and to explore the ramifications of any decision they make. The Kansas Court of Appeals hears most appeals from the trial courts with the exception of certain cases involving certain constitutional questions or questions relating to certain major felonies. The parties in a case that has been tried in the trial court have a right to appeal errors of law to the Kansas Court of Appeals. The Kansas Supreme Court has jurisdiction over appeals involving the death sentence, cases where a statute was declared unconstitutional, and discretionary review of cases that were decided by the Court of Appeals. The parties to a civil case do not have a right to have their case heard by the Kansas Supreme Court, even if they are unhappy with the outcome at the Court of Appeals. The parties can request review by the Supreme Court, but the Supreme Court determines which cases it will hear.

Mediation and Alternative Dispute Resolution

February 1, 2016 No Comments

This is the third article in our “Law for Non-Lawyers” series. If you are involved in a lawsuit, you should ask your lawyers about mediation or alternative dispute resolution. Alternative dispute resolution (“ADR”) refers to any method of resolving a claim that is an alternative to trial. ADR includes mediation, arbitration, summary jury trial and conciliation. Mediation is the most common ADR method. Mediation is used in cases involving construction issues, business disputes, personal injury, auto accident, wrongful death, and virtually any other type of issue. Although judges sometimes order parties to mediate, settlement during mediation is voluntary. In mediation, the parties decide whether to resolve their case out of court and, if so, how to resolve the case. This is one of the great advantages of mediation over trial. Mediation is a formal settlement discussion that is guided and managed by a mediator. Mediators are sometimes referred to as “neutrals” because they don’t work for either party. The mediator is typically chosen by agreement of the parties and their attorneys. Most mediators are retired judges or experienced trial lawyers. Before the mediation, each lawyer typically sends a summary of his or her client’s legal position to the mediator and sometimes talks with the mediator about the case. At this stage, the attorneys are helping the mediator understand the facts and law that control the case. In some cases, the parties decide to exchange the mediation case summaries with each other. The mediation usually begins with a joint session with the mediator. The mediator will explain the process to the parties and have them sign a confidentiality agreement. Statements made by the parties in mediation cannot be used against them if the case goes to trial. Likewise, the mediator cannot be compelled to testify at trial about anything he or she learned in the mediation process. At many mediations, the lawyers will then make opening statements explaining their client’s side of the dispute. The purpose of the opening statement is to let the other side know enough about the case to be willing to settle. In cases where the parties’ emotions are expected to run high, the mediator may encourage the attorneys to skip the opening statement to avoid increasing the tension and reducing the willingness of the parties to settle. The next stage includes caucus sessions. The mediator will put each of the parties in a separate room with their lawyer. The mediator will then meet with each side privately. What happens during the caucus sessions will depend in part on the mediator’s mediation style. Some mediators use a facilitative style and others use an evaluative style. In facilitative mediation, the mediator asks questions of the parties, tries to discern what their ultimate interests are and tries to help the parties find and analyze options for resolving their disputes. In the facilitative model, the mediator does not push the parties to reach a resolution, but is more of a guide. The mediator will take settlement proposals back and forth between the parties. In evaluative mediation, the mediator asks questions of the parties, analyzes the law, and tries to help the parties see the weaknesses in their positions. The evaluative mediator encourages settlement by helping the parties objectively understand the weaknesses of their case. The mediator helps each party determine its “Best Alternative To a Negotiated Agreement” or “BATNA” for short. The BATNA is the best you can do if the other party refuses to negotiate or tells you to jump in a lake. Knowing the BATNA can help a party weigh the risk of walking away from the mediation against benefit of the amount offered or demanded by the other party. In the greater Kansas City area, the evaluative model is more common in most business and personal injury mediations. Although less common, the facilitative model is useful when the parties need to resolve more issues than just the payment of money. For example, in a slander case it may be particularly important to the victim to have the other party publicly apologize or publicly retract their slanderous statement. The victim may be willing to accept less money if his or her reputation can be restored. Most good mediators have the ability to use either model of mediation depending on what is most appropriate for the case. If you will be mediating your case, tell your lawyer about anything other than money that could affect your interest in settlement. Your lawyer needs that information to select the most appropriate mediator for your case and to effectively represent you in the process. At Morefield Speicher Bachman, LC, our lawyers have extensive experience representing clients in mediation. Richard Morefield is a trained mediator with experience mediating a variety of business and other issues. He welcomes the opportunity to serve as a mediator in both business and personal injury cases. He is on the approved mediator panel for the United States District Court for the Western District of Missouri. If you have questions about mediation or need a trained mediator, don’t hesitate to contact our firm.

Hearsay Evidence: Legal Basics for Non-Lawyers

January 25, 2016 No Comments

If you have ever watched a legal thriller or read a John Grisham novel, you have heard attorneys or judges use the word “hearsay”. If you are involved in a lawsuit, it is helpful to have a basic understanding of this legal term. Hearsay is a type of statement that is typically not allowed as evidence in court. In legal terms, hearsay is an out of court statement used to prove the truth of the matter asserted. See, Federal Rule of Evidence (FRE) 801. For example, if we need to prove that John was at the post office on Monday, we can’t have Susan testify that John told her he was at the post office on Monday. Witnesses are only allowed to testify about what they have personally seen, experienced, or heard. The reason for this rule is that it is unfair to the other party if they can’t cross-examine John about his whereabouts. An out of court statement is simply something that a person said when they were not in court. There are several types of out of court statements that look like hearsay, but are still admissible. For example, when a witness makes a sudden exclamation out of surprise or fear or excitement, this can come into evidence. When certain requirements are met, business records may be admissible. Prior sworn testimony can be admitted into evidence. If you are the person who sued someone (“the plaintiff”) or if you have been sued (“the defendant”), it is essential for you to remember that the statements you make out of court are NOT hearsay. If you talk about something related to your lawsuit out of court, other people can testify about what you said. Under the law, this is called an admission of a party. Similarly, anything your opponent says out of court is an admission that may come into evidence. There are many nuances to the rule against hearsay that a skilled trial lawyer can use to get hearsay into evidence or keep it out. If your lawyer knows about out of court statements that hurt your case, your lawyer may be able to keep them out of evidence. The most important takeaway is to keep your lawyer informed about everything you have said about your case to other people. You should not discuss your case with anyone outside of your legal team. Also, inform your lawyer about everything you have heard anyone else say about the facts of your case. If you are our client and have questions about hearsay, one of our experienced trial lawyers would be glad to answer your questions.

Court Funding Crisis

March 26, 2015 No Comments

We created this blog to provide timely and useful information about important legal issues. As a rule, we stay away from politics. This is one of those rare times when we will discuss something that you may consider political. We do so because this issue is one that effects everyone who relies on the courts for justice. In fact, we believe the issue of fair court funding is NOT a political issue, but a Constitutional necessity. Many of the state and federal courts in our great country face a serious funding crisis. This crisis manifests itself in different ways in different states and in different courts. For example, in San Diego, California, court reporters are only permitted to record proceedings for 30 minutes. After that time, they are required to unplug their steno machines and leave. If either party requires the proceedings to be recorded to preserve a record for appeal, they must hire a private court reporter to do so. In Boston, Massachussetts, civil cases are delayed because the Constitution requires courts to give priority to criminal cases and there are not enough judges and court personnel to handle the civil cases promptly. In Kansas, the law has been changed to allow a longer period of time before the judicial nominating commission is informed it needs to meet to recommend nominees to replace retiring judges. This allows the state to delay paying for a replacement judge, but can result in too few judges to hear cases promptly. We even have some courts that haven’t had sufficient money for copy paper. There are many other examples throughout the country of real people suffering hardship because they can’t get their cases heard promptly. There are parents who go months without seeing their child because they can’t get a hearing on child custody issues. There are business owners who can’t collect lawful debts. There are personal injury victims who are out of work due to their injuries, but can’t get to court because there aren’t enough judges and court personnel to promptly hear the cases. In most states, the court system costs less than 1% of the state’s annual budget. Rather than saving money, cuts to court funding cost our economy billions of dollars. A recent economic analysis showed that delayed justice costs our economy roughly $52.5 billion dollars in lost investment income annually! See, “ECONOMIC IMPACT OF REDUCED JUDICIARY FUNDING AND RESULTING DELAYS IN STATE CIVIL LITIGATION”, Nels Pearsall, Bo Shippen, and Roy Weinstein, March 2012, published by ERS Group, Micronomics. This economic loss occurs because litigants do not use money that is at risk or that is in dispute for purchases or investments until the litigation is completed. So, what can we do about this problem? The American Bar Association’s Tort Trial and Insurance Practice Section, under the leadership of Section Chair Mike Drumke, has put together a Task Force on Fair Court Funding to reach the legislatures in all 50 states to work towards obtaining fair court funding nationwide. Rick Morefield of this firm and Dan Gourash of Seeley, Savidge, Ebert & Gourash are co-chairing that effort. We have a great deal of information that can equip you to talk with your state legislators and other persons of influence to correct this serious problem. Check out the TIPS Fair Court Funding Toolkit for more information. TIPS has also produced a brief Fair Court Funding Video that provides helpful insight into this crisis. Please join with us in in helping to solve this very serious issue that affects clients, lawyers, courts, and our economy.

Don’t Get Caught by the Juror Phishing Scam

January 30, 2015 No Comments

According to the U.S. Courts website, individuals in Kansas and other states are being targeted once again by a juror phishing scam. Scammers seek to obtain personal identifiers and credit card and/or debit card information by phone or email, and by use of a fraudulent online jury questionnaire. Some scammers are going as far as to threaten fines and even arrest for members of the public who do not comply with the request for information. Both the Kansas and Missouri Courts’ websites have posted warnings regarding these scams. Kansas and Missouri courts will not contact potential jurors to request social security numbers or banking information by phone or email. If you believe you have received one of these calls or emails, please visit your state court website for information on reporting the scam. To read more: http://news.uscourts.gov/new-year-old-juror-scam Tomi Holt is a paralegal and legal administrator with Morefield Speicher Bachman, LC. The content of this blog is for informational purposes only and is not intended to provide legal advice on any issues addressed.