Depositions and Other Forms of Torture

I had to give my deposition in a lawsuit earlier today, and I've got a massive headache now. Spending 6 hours of my day answering questions about things that happened 4 to 6 years ago is not my idea of fun. On the spectrum of fun, it falls somewhere around root canal, full cavity searches and being beaten with blunt objects. Y'all talk amongst yourselves. Don't burn down anything important.  Replace anything you drink from the liquor cabinet.

Lawyers, Liars and the Legal System

 

The meme has nothing to do with today's subject except maybe tangentially, but it does kick over my giggle box. That said, there is a corollary to the meme that the scales of justice can be tipped with the sufficient application of large amounts of untraceable cash or other valuable consideration. The fact that Hillary Clinton and the cast of characters in Jeffrey Epstien and Giselle Maxwell's Client List Little Black Book are still walking free is no coincidence. 

Despite the fact that I make a living dealing with lawyers and the legal system everyday, I am not a fan of either. Too much familiarity with the sausage making process to trust it fully I suppose. So, it is with no small amount of loathing and reluctance that I agreed to give a deposition in a lawsuit arising out of a claim I handled several years ago. I could have said "go pound sand" and been well within my legal rights to do so. 1) I am out of subpoena range, 2) I am no longer employed by the company I was working for at the time, 3) they nuked the bridge from orbit which means, 4) I have no incentive to play nice. 

Unfortunately for  me, I am a stand up guy at heart. So, despite the fact that I will not get so much as an "attaboy", I now get to spend my free time for the next few days preparing for my deposition (which is the mental equivalent of a colonoscopy without the benefit of anesthesia) and then spend the better part of a day on a video conference being grilled by various attorneys about events and thought processes that took place 4 to 5 years ago now just so a few insurance companies can battle it out over who should pony up a couple of million dollars. 

There's not enough Bourbon to make this little misadventure fun. Just saying. 

M&M 2.0 Brief Update

Fortunately, I did not have to discover whether I had a fool for a client by attempting to represent myself. At the 11TH hour, we were able to retain another attorney to step in and fill the shoes vacated by the previous attorney. The prior attorney had given me several recommendations; however, upon casual vetting, it was revealed that all of them suffered from one or more serious flaws which eliminated any interest I had in retaining them. I mean, really, who in their right mind retains an attorney who shows up at the court house drunk while carrying a handgun in a hollowed out book without a license to carry (not that he would have been allowed to carry the gun in with a license)?

Not me. I don't care how well politically connected he is (chairman [now former thanks to his arrest] of the local Democrat party in a predominately Democrat county), I don't want a drunk with a felony weapons charge pending against him representing me and mine.

So, short on time and options, I dug back into the memory banks for the names of two attorneys that we knew from M&M's case. The first was the attorney The Queen and I consulted regarding intervening in M&M's case. The other was the attorney that the court appointed as M&M's guardian ad litem.

The first attorney was not very encouraging. He said things like "that's impossible" referring to the short time frame (a day and a half) in which to draft and file the intervention. He was also not entirely sure he could make the hearing. So, I thanked him for his time and moved on to door number two.

M&M's former ad litem was much more enthusiastic. She had her staff jumping on drafting the intervention even before the retainer contract was signed. Her paralegal was also very resourceful. The attorney for the petitioners (the couple currently caretaking 2.0) was not willing to extend any professional courtesy and give up the address where the bio parents could be served with the intervention.

So, the paralegal looked up which process server the petitioner's attorney had used, made a quick call and confirmed that, yes indeedy, the process server remembered the case and the shack where the bios were currently staying. He was more than happy to make a second service fee with little effort. I gave her a high five for that one. That's the kind of out of the box thinking that wins wars right there.

Anywho, we showed up for the hearing earlier this week as scheduled in hopes of getting a favorable ruling. No such luck. Our attorneys did not have the required amount of time to do anything other than file the intervention. Setting a competing hearing on any affirmative action of our own would have required at least three business days which we did not have due to the New Year's holiday.

We were successful in blocking the petitioners' efforts to make the Temporary Restraining Order permanent. Their attorney attempted to have their TRO hearing heard in addition to requesting the court to strike our intervention. The court declined and required their attorney to choose either A) to move forward on her hearing with us involved, or B) continue the hearing to a later date to give her adequate time to file a formal motion to strike and prepare for a full hearing as the scheduled hearing was only set for a half hour. The opposing attorney did the only thing she could do and took the continuance. She will find out quickly that she has not basis for a motion to strike as our standing to intervene is black letter statutory law. So, she's stuck with us now.

Of note, the bio parents actually showed up for the hearing. They are unrepresented this go around because this is a private lawsuit since Texas DFPS declined to pursue any action on behalf of the state thus denying the bios access to court appointed attorneys. We heard through sources that they have set up a Gofundme account which has netted a grand total of $0 in contributions. There was a host excuses offered up by the male bio as to why they didn't have counsel, why they hadn't completed their drug testing yet, why they haven't completed their anger management classes yet, etc.

In another interesting twist, while waiting for the hearing to begin, we heard the bios talking with the petitioners' attorney and male bio's reporting of the events leading up to the termination of their parental rights in M&M's case was quite amusing. No concept of personal responsibility. No acceptance of any blame. No nada. We are evil because we stole M&M, etc. Our attorney says she can't wait to get him on the stand.

Next step is a full blown, it's on like Donkey Kong, hearing in about 2 months from now with testimony by the involved parties, DFPS and probably a few others. The hearing is slated for 4 hours, and I bet it runs long. We have filed a motion to strike the petitioners claims due to lack of standing to file. There will be a brief exchange of written discovery between the parties (which I fully expect the bios to ignore).

Then...who knows. I still feel pretty good about our chances given the law; however, the judge has pretty wide discretion in these cases to do what he feels is in the best interests of the child. The longer this drags out, the more likely it is that he will just rule that the status quo is best.

That will suck.

More to follow when I can.

Lies, Damned Lies and...

...attorneys and Texas Department of Family Protective Services.

AAAARRRRrrgggghhhhh!!!!!

Everything we were told about M&M's sister was false. Whether through gross incompetence or deliberate malice remains yet to be seen.

The icing on the cake is that the attorney we thought was going to represent us changed her mind yesterday afternoon. The hearing is less than a week away.

I may have to test the theory about fools for clients.

Can't give details yet. Will when I can.

I Thought It Was Funny

It's been a while, but I'm still here. I've just had lots going on. I promise to write an everything update soon. In the meantime, here's a little slice of workplace humor from earlier this week.

So, my supervisor puts a note in the file:

“Put monkey on back of [the attorney] or [the claimant] to get us [the property damage] info or else we close [the file] in 7 days.”

My response in the file notes:

“Monkey installed on [claimant attorney’s] back. Monkey not happy being so close to an attorney.“

They really should install a snark filter on the claims system. 

Update

Not much to report on the job search front. At last count, I've put out 20 or 21 job applications and received 5 formal rejections. In addition, I am working with several recruiters and a couple of people in my extended business associate network. The brightest possibilities are a recruiter with an AVP position in Dallas and a business associate with a yet to be defined possibility in Fort Worth. The AVP position is with a company where I still know several people including one of the VPs. It's a good company, and I can see myself being happy in the role. I am reportedly one of three candidates currently under consideration, but it is a nationwide search and there is no indication of when they will be moving to interview stage.

The other deal, despite being somewhat nebulous and undefined at the moment, has some advantages as well. Hopefully, one or more dominoes will start falling soon.

In other news, The Queen and I were forced to file third degree felony theft charges against someone yesterday for the first time in our lives. I can't go into details yet, but the short of it is that we were the victims of a con artist. There are aspects of the situation that would make your blood boil were I to share. "Vengeance is mine sayeth the Lord"....but, let's just say I'd be happy to arrange a meeting.

Lots of lessons learned and relearned out of this experience. In this digital age, the information is out there. You just have to know where to look, how to look and take the time to be thorough. Don't do business with anyone you haven't thoroughly vetted. Big deals (if you can't afford to lose, it's a big deal) should include a background check especially if things don't pass the smell test.

As I told The Queen last night, it's easy to spot evil when it's walking down the street shooting people left and right. It's real hard to spot it when it sits down, siddles up next to you and smiles.

Abraham Lincoln said it even better: "You can fool all of the people some of the time...." This was our time.

We are resigned to the fact that we will likely never see our property again or the money that was promised (if we do, that's a bonus). Our goal is to simply insure that the thief can't do this again to anyone else. There are two other felony theft cases pending against him which we really wish we had found before we entered into an agreement with him (we would have found it if we had searched for Stephen instead of Steve). He's currently under a deferred adjudication order in another county for theft charges there. He's also being sued in civil court by someone else for circumstances nearly identical to ours (I'm in contact with that attorney trying to convince them to file criminal charges as well).

If you are in the Dallas/Fort Worth area and want to know who to avoid, send me an email. I'll be happy to share the name, court case references, etc.

Insider's Guide for Outsiders: Evil Insurance Companies

A co-worker forwarded the link to this news article. For those who can't be bothered to click a link, here's the short version:

76 year old man gets into an argument with his insurance agent over why his auto insurance was canceled. Man gets physically thrown out of agent's office. Man sues agent. Man wins judgment. Agent's representatives attempt to partially satisfy the judgment with 17 buckets of loose coins.

As my current boss commented, there's got to be more to this story.

Now, I will admit that I have been sorely tempted to do something like this more than once in my insurance career. The one thing stopping me has been that the hassle of getting that much coinage together and delivering same far outweighed any pleasure I might have received at making a difficult attorney's life more difficult. I'm sure others in my profession will agree.

I bring this up because of a (probable spam) comment I received on my relatively recent post on litigation. The commenter stated: "Great information! Insurance companies don't like to pay claims and some inspectors or adjusters are invented to deny claims. With this said, if you have a legitimate claim, you should expect to be treated fairly and expect the insurance company to honor the claim."

My response to the commenter was: "I'm not sure what you mean by "some inspectors or adjusters are invented to deny claims", but I will say that claims people tend to be a jaded and suspicious lot by nature (it comes from too many dealings with sleazy lawyers and angry claimants). Insurance companies are in business to make money like every other business. As such, saying they don't like to pay claims is almost akin to saying the Pope is Catholic. Having said that, some companies have a well deserved reputation for being difficult and reluctant to pay claims while others are less difficult. Perhaps my next articles in the series will be on insurance companies and adjusters."

I thought I would take a moment and give a brief overview of the insurance business from the company perspective. 

First, let's get one thing perfectly clear from the start: with very few exceptions, insurance companies are in business to make money. Any insurance company failing to make money for very long does not tend to stay in business for very long. 

The primary vehicle for measuring the profitability of an insurance company is the loss ratio. In its purest form, the loss ratio is the total of all written premium collected divided by claims paid including expenses. There are two types of expenses: allocated loss adjustment expenses (A.L.A.E. for short though I've heard some people pronounce it as a word: "A-lay") and unallocated loss adjustment expenses (ULAE). ALAE is any expense that can be allocated to a specific claim file. The legal bill that pays for the attorney defending a specific lawsuit is ALAE as is private investigator, inspector, expert witness and other expenses when they arise out of a specific claim investigation. Adjuster salaries, office rent, electricity, phones, etc. are ULAE. 

A loss ratio of 1.0 is break even. Loss ratios of greater than 1.0 mean a company is hemmorrhaging money, and loss ratios of less than 1.0 mean that the company should be profitable. It is theoretically possible for a company to have a 1.1 loss ratio and still turn a profit, but that feat requires successful return on investment of premium dollars which I may or may not discuss further. In my experience, it is rare to see a reported loss ratio below 0.50. The most profitable companies typically run a loss ratio in the .55 to .75 range. The majority of okay but financially profitable companies run ratios between .75 and .95. Companies having issues typically run loss ratios very close to or above 1.0. A recent example would be Fireman's Fund's dismal performance the last two years running with combined ratios (a combined ratio is the pure loss ratio including investment performance) of 1.294 (2012) and 1.036 (2013).  

That's all so very nice and esoteric, but what does it mean? 

To be honest, lots of things and nothing at all. 

Underwriter and actuaries control one half of the equation (written premium) while the claims department controls most of the other half (losses paid and ALAE). Premium rates are set based on a variety of factors that are well beyond my limited math education and experience. Actuaries perform all sorts of calculations and review statistics (and goat entrails I'm sure) and analyze navels until they come up with a set of rates they think represents the rates that a given category of risk should pay. That's why teenage boys pay the highest rates for car insurance. Underwriters then stick their thumb in that pie and develop a set of underwriting guidelines that define the "appetite" for risk that the company wants to pursue. For instance, the last company I worked for prior to the one I am with now had a solid personal lines (auto and homeowner's insurance) and "middle market" appetite. They were content to pursue small to medium sized companies in a variety of industries, but they would steer away from anything too big or unique. Unique in the underwriting world = risky and hard to price. 

Another driver of insurance premium rates is policyholder retention (or whatever the term de jour is). Basically, there is a finite number of people and/or companies out there. Most of them already have policies which forces the insurance industry to compete on price and service. Service is almost exclusively (but not completely) owned by the claims department. Underwriting sells a promise. Claims delivers on the promise. That leaves price. A company losing market share might choose to lower rates or increase its underwriting appetite or both in order to bring in more premium dollars, at the risk of increasing the loss ratio. A company seeing its loss ratio rise might choose to do the opposite, at the risk of losing market share.  It's a very delicate balancing act. 

That brings us to the loss/claims side of the equation. As mentioned a moment ago, service belongs to claims. There is a distinction here that needs to be mentioned (one I've mentioned before). When you see an ad for an insurance company on TV talking about fast claims service, they are talking about first party claims. A first party claim is one in which you the policyholder are making a claim for benefits to be paid to you under your policy. An example would be making a comprehensive or collision claim on your auto policy. A liability claim where someone else makes a claim on your policy for benefits to be paid to them arising from an accident caused by your negligence is a third party claim. 

What difference does it make? Most states, if not all states, have some form of statutory or regulatory guidelines for how first party claims can/should be handled under pain of fine or penalty for failure to comply. As a result, the claims process for first party claims is pretty streamlined and efficient. Some companies still have field adjusters who will come to you; and, in some cases, they will even cut a check for the damages on the spot. Additionally, there is usually no requirement on a first party claim to prove legal liability as is required by the insuring agreement on a liability policy since a first party claim arises from contractual language as opposed to tort negligence theory. Prove that the contract was in effect and that the damages incurred are covered by said contract (which is usually self evident), and the check is in the mail. 

Most of the time, when someone is griping about an insurance company, they are griping about the handling of a third party claim. As mentioned in a prior post, the time frames on a third party liability claim can go on for years. Most people anymore lose their patience and tempers after a few seconds. So, you can imagine how much fun third party claimants are to deal with when you deny their claims. 

Now, as for the prevailing thought that adjusters look for reasons to deny a claim or that insurance companies don't like to pay claims, the short answer is that it depends. 

Most individual insurance adjusters are hard working people trying to earn a living and do a good job. They have neither the authority nor do they receive the level of reward necessary to incentivise denying valid claims for no reason. The average adjuster, in my experience, is handling between 75 and 175 claims at any given time depending on the complexity of the mix. Most adjusters have very limited personal authority requiring management approval for settlements/reserves above certain amounts, coverage issues, etc. Most adjusters also know that denying a claim does not mean it goes away. In this litigious society, they know that it just means a lawsuit will be coming in soon and that file will be around a lot longer. If anything, there is a human nature tendency to find ways to PAY claims because settled files very rarely reopen, and adjusters have better things to do with their time than reopen files. As such, a permanently closed file is a happy file. Yes, there are individual adjusters that are jerks who are difficult to deal with. Pick any industry...you will find your share of jerks there too. The bottom line is that adjusters are people too subject to the same pressures and feelings as anyone else.

At the company level, there is not an insurance company in business today that has an official "smoking gun" document from senior management that says "look for ways to deny claims" or something to that effect. No one I am aware of is that stupid given the lengths to which bad faith lawyers will go to find such information. Now, will middle management do or say something stupid like that? Yes. I had an assistant VP of claims at a large, international insurance company tell me personally "I don't care if it's right. I just want it done." I explained to him that I had no intention of doing what he told me as I had no intention of explaining why such an unethical thing was done when my deposition would be taken in the inevitable bad faith lawsuit. His boss agreed with me after the fact. I still left that company pretty quickly thereafter though. 

Will a company institute policies or procedures that make the claims process more difficult for everyone involved (adjuster and claimant alike)? Yep. Been there. Done that. Google "allstate colossus" for one such example. I've never worked for Allstate, but I did work for one company that also used Colossus for certain types of claims. I can attest that it is just like every other computer program in existence: garbage in, garbage out. 

One consequence of the whole loss ratio analysis discussed above is the cyclical nature of claims settlements. When the loss ratio is high, the claims department gets pressure to "lower the loss ratio" or "reduce expenses". This can take the form of taking more cases in litigation to trial (which is counter intuitive since it involves incurring more expense) or settling more cases (which is also counter intuitive for obvious reasons). Taking more cases to trial is problematic for a variety of reasons not the least of which is the almost Byzantine nature of our legal process. Most adjusters hate to lose cases at trial. As such, they tend to recommend very few cases for trial and then only those that have legitimate, unresolvable disputes or those that they believe are "slam dunk" cases. I have sat in more than a few roundtables where I've told upper management in no uncertain terms that trying a particular case would be an epic mistake. Usually, they are smart enough to listen and the case eventually settles. 

It should be noted that insurance companies don't just take premium dollars and dump them in an interest bearing checking account hoping everything balances at the end of the month. There is a whole side of the business controlled by accounting and the CFO that takes the money, invests it and hopefully scores a boatload of return on investment earnings in the process. Sometimes, that can blow up in their faces. AIG most notably went to the brink of oblivion just after the housing bubble burst in 2008 through over reliance on mortgage backed derivative investments. Hartford got splashed by that same bubble bursting for the same reasons but fared much better through a more diverse investment portfolio.

This is a pretty big topic that I am only scratching the surface of here, but I need to get back to work. If you are really that interested, you can dig into the mechanics of reserving and prior year development charges to present earnings, etc. That's homework for you CPA types. 

In closing, your attorney is no better or worse a person than the adjuster for the insurance company. Treat them with the Golden Rule, and things will usually work out the way they are supposed to.

 

Insider's Guide to Insurance Claims For Outsiders: Litigation

Not too long ago, I was monitoring the trial of a large, complex third party liability claim involving multiple plaintiffs, a fatality, a severe injury, a bystander claim and several "dirty underwear" claims. It was interesting and boring all at the same time, and I genuinely feel sorry for the jurors who had to sit through that mess and render a verdict. It occurred to me that most people have no clue what goes on in litigation, the costs involved, etc. So, allow me to give you a primer on the world of litigation from the perspective of a jaded insurance claims professional.

First, let me give you a little background and disclaimer. I have been in the insurance business since 1991, and I've been handling claims since 1995. The majority of my  years of claims handling has involved handling, overseeing, negotiating, managing and otherwise dealing with what are considered high exposure, complex and litigated third party liability claims. I have dealt with attorneys on both sides of the bar. I have seen good, bad and average attorneys. I have dealt with fraud, exaggeration, malingering, faking, "lawsuit lottery", and a whole host of things that people try to pull thinking it makes their claims more valuable. I have seen the best and worst in people. I am jaded, cynical and not a little biased against plaintiffs, attorneys and judges.

To sum it up, when people threaten to sue me, my company or my insureds, I have a pretty good idea how things are going to play out.

So, where do we start?

First off, the United States Constitution and most, if not all, state constitutions guarantees everyone equal access to the court system. That includes illegal aliens whether we like it or not. According to my quick Google Fu, something like 15 or 16 MILLION lawsuits are filed across the US every year. Of those, on average, only about 2% of all lawsuits filed ever go to trial. Some estimates even put that number at less than 1% (which is pretty close to my experience at two large, national property/casualty insurance carriers).

Statistically, that means the likelihood of you "having your day in court" are slim. You are much, much more likely to settle your case out of court.

Now, let's talk about the length of time involved. All states have a statute of limitations which governs the length of time you have to bring a lawsuit. It varies from state to state, and the limitations period can depend on what kind of claim is involved. For instance, here in Texas the statute of limitations (a.k.a. "the statute" or the "SOL") is typically 2 years for most third party liability claims and 4 years for claims involving contract disputes. One exception to that rule is the statute of limitations for minor children. They get two years from their 18TH birthday to file suit.

So, for example, let's say you are in a car wreck today (which would be fairly typical reason for most people to consider litigation). It could be as late as 2016 before you have to file a lawsuit. Some states have a shorter limitations period (Louisiana is typically one year) while others have longer limitations periods (6 years is the max on a personal injury case that I am aware of and the majority of states have a two year statute). The statute can be as long as 20 years on contract claims in some states; and most notoriously, the state of Minnesota effectively lifted the statute of limitations in the 1-35 bridge collapse case a few years ago. That situation is a little more complicated because it involves long term construction defect issues and is hopefully an outlier rather than a developing trend.

There is usually no lower limit on when you can file suit. The case I mentioned at the beginning of this post involved an accident that occurred on a Saturday, and the lawsuit was filed first thing Monday morning. However, in some types of cases, there can be administrative hurdles you have to clear before you can file suit. Homeowner/Residential construction defect cases and employment discrimination (a.k.a. EEOC claims) cases often involve an arbitration or administrative right to sue process prior to filing suit.

Now, once you've filed your lawsuit, the waiting game REALLY begins. With certain exceptions, the parties to a lawsuit are entitled to engage in an information gathering process known as the discovery process. The discovery process is usually subject to time table either agreed to by the parties or dictated by the court and is usually governed by the controlling law's rules of civil procedure (ex. a Texas civil lawsuit filed in state district court would be subject to the Texas Rules of Civil Procedure). Some courts are known to aggressively push the cases assigned to their dockets in which affectionately become known as "rocket dockets". Other courts are ambivalent at best and outright slow or corrupt/incompetent at worst.

The discovery process is usually comprised of three phases (more or less). The first phase is generally referred to as written or paper discovery. This consists of requests for written interrogatories (a list of questions the party wants answers to...stuff like identify people with knowledge of relevant facts, etc.), requests for production (give us copies of stuff you have like police reports, photos, your Facebook account, etc.) and requests for admissions (admit or deny that you are a moron, etc.). The next phase of discovery, sometimes referred to as oral discovery, are the depositions of parties and witnesses. Finally, there is expert discovery which includes obtaining reports and depositions of potential experts including doctors, engineers, etc. Written discovery typically happens first but can continue through the life of the case as new information develops. Depositions and expert discovery can and often to happen concurrently although experts are often dealt with last just before trial.

Time wise, the discovery process can take as much time as the court will give you. In my experience, six months is about the bare minimum to expect for discovery in a simple two party car wreck case. It can go on for years if the court allows it. On average, I would say 9 to 18 months is pretty typical for most cases to get through the discovery process. As a rule of thumb: the more complex the case, the longer discovery will take.

Two other major time sinks in the litigation process are alternative dispute resolution (aka "ADR") processes such as mediation and/or arbitration and "motion practice" where motions for summary judgment, motions to dismiss, venue challenges and other legal minutia gets argued before the court.

Generally speaking, courts are reluctant to dismiss a plaintiff's claim(s) on a motion regardless of the validity of the motion or the soundness of the legal position upon which it is based. Some of that is due to a trend of increasing "liberal" or plaintiff oriented bias on the bench which is an outgrowth of the popular election of judges in most states. Where you have executive appointment of judges (such as at the Federal Court level), you tend to see more motions for summary judgment granted than in courts where judges have reelection to consider. Typically, a court will not entertain a ruling on a motion until the majority of discovery has been completed. Part of the reason for this is the nature of the motion for summary judgment outcome. A motion for summary judgment (or dismiss, etc.) basically argues that there are no issues or material fact for a jury to decide and that the plaintiff's (or defendant's) claims should be denied or dismissed as a matter of law. Judges generally have significant latitude and discretion on when and how to rule on a motion. Many will "take the matter under advisement" which sometimes is code for "I don't know what to do with this mess" or "I'm going to hang onto this issue until I think I can leverage it into forcing one side or the other to get more reasonable and settle this mess without the need for a trial" or "my lunch is talking back to me and I need to go to the can RIGHT NOW." Bottomline is that the judge can rule or not rule on a motion at his discretion in his own sweet time (appellate judges are even worse).

The other major time sink which courts have really taken a liking to is ADR because it disposes of the vast majority of cases through negotiated settlement or a binding arbitration decision. ADR usually takes place after the majority of written discovery has taken place but typically before the expense of expert discovery is incurred. Expert discovery can be very expensive and time consuming. So, most smart people try to see if there is a chance to settle the case before incurring costs that will potentially put the case out of reach for a reasonable result (we'll talk more about the economics of this shortly). Frequently, parties will schedule a mediation after a motion for summary judgment has been filed but before the court has ruled on it as a means of using the uncertainty of the judge's ruling as negotiating leverage.

This is not to say that ADR is the be all end all of resolving litigation. My experience has been that only 30 to 50% of cases settle or resolve at the first mediation or arbitration (some arbitration agreements have a "de novo" right of appeal to the traditional court system). The remainder of those 90+% of cases that settle or resolve short of trial do so via informal negotiations between the parties. But, ADR is usually key to facilitating those negotiated resolutions. 

Now, if you've negotiated the discovery waters, shot your wad in ADR without getting a settlement you can live with and had the court ignore or deny your motions for summary judgment long enough to reach the front of the trial docket.... Oops. I forgot to mention the hidden time sink in all this...the court's docket. Every case that is filed gets set on a court's docket. Each court will eventually issue a document sometimes a case management order, scheduling order or something to that effect which sets out the deadlines and timeframes for each case. It's important to note that these deadlines and timeframes are subject to change for any number of reasons including conflicts with other cases, the court's hearing and motion docket, etc. In some rural counties, there is one court for the entire county including criminal, family and civil matters. In those counties, criminal matters take precedence followed by family court with civil matters getting the leftovers of whatever time is available. Woe be to the person awaiting trial in a rural venue serviced by a circuit judge who presides over the courts of multiple counties (yes, they still exist) due to sparse population.

You may have a scheduling order that says your case is set for trial on date X; however, your case may be sharing that date with 15 or 150 other cases. This is particularly true of counties where there are large metropolitan cities such as Dallas or Houston. If you are number 150 on the docket for a given trial date, you are not likely to get reached and your case will be continued to the next available trial setting. If you are number 15 on the docket, there is a very real chance you may go to trial as other cases ahead of you settle or continue for various reasons. If you are number 1 on the docket or have a "special setting", you are going to trial unless you cough up a lung or have a death in the family or can give the judge some other REALLY good reason why you can't go to trial that day. Resettings typically get punted 6 months or more down the calender. How much further down the docket depends on how annoyed the judge is with one or both of the parties. This cycle of continuations and resettings can go on indefinitely if the judge allows it.

So, anyway, digression over. You've made it to trial. Go buy a lottery ticket. Your odds of getting the result you expect or think you deserve are roughly the same. I've been doing this a long time, and one of the first things you learn is that NO ONE can accurately predict what a given jury will do with a specific set of facts on any given day.

Trial can last from a day or two start to finish for a simple, two party, car wreck case to months for more complex cases. Trial starts with voir dire (don't ask me to pronounce it, i've heard at least three different ways to pronounce, and I'm not sure which is correct...nor do I really care). It's a Latin derived term. Lawyers love Latin terms for some reason. Anyterm, VD is when a panel of prospective jurors are brought in to be quizzed by the attorneys (and sometimes the judge too) about various topics related to the case and the jurors' potential suitability or lack thereof to serve on the jury panel.

If you want to get out of jury duty, the most reliable way I've come across is to be vocal and opinionated during VD. It's the quiet ones who typically get stuck on the jury because that haven't said anything to annoy one side or the other enough to make them either petition the court to strike them for cause or to burn a preemptory strike on them. You can tell when you've said enough to annoy an attorney when they tell you that they "want to hear from some of the other potential jurors." That's the signal that they know exactly who you are and what you stand for and they will probably gladly give you a hall pass to get off their jury.

The bigger the case, the bigger the jury pool, the longer VD takes. I was called for a pool on a capital murder trial about 17 years ago. The pool was 250 potential jurors. VD took three weeks. The first day was just filling out a 20 page jury questionnaire. Day two was general question of the group at large. The remaining time was taken up by the prosecution and defense conducting one on one interviews of each of the first 60 jurors before the court.

Why the first 60? It's like this...the jury that gets seated to hear the case (any case) is not the best and the brightest. It's the first 6 or 12 (depending on the court not including alternates) people from the pool who are not disqualified or struck for one reason or another. If you are in the low numbers of a pool, your odds of getting selected are substantially greater than if you are in higher numbers.

That capital murder trial? The court didn't want to waste resources interviewing all 250 if they could seat 12 plus three alternates out of the first 60. I was number 16. Fortunately, the defense didn't like me enough that they used a preemptory strike on me. It might have had something to with my comment about not trusting sleazy defense attorneys. Perhaps. Same principles apply in civil litigation although civil courts don't always use 20 page jury questionnaires.

After a (now disgruntled) jury is sat (empaneled is the proper term), we get to the nitty gritty of trial. First, both sides make an opening statement for the court in which they hope to show the judge and jury what they intend to prove with the evidence. Opening statements are not testimony or evidence although attorneys frequently try to use them as a vehicle to slip little nuggets in that they may not be able to get in front of the court otherwise. Plaintiffs always go first. Defense is second.

After opening statements, the plaintiff gets to present their case in chief. They call witnesses to provide testimony and introduce evidence. Let me take a moment to disabuse you of a notion here. Every witness is sworn in by the judge with the traditional "do you swear to tell the whole truth...." oath. The sad reality is that a game is being played out behind the scenes out of the jury's presence in which the parties file motions in limine in which the court determines ahead of time exactly how much of the truth the jury gets to hear (or see). If an attorney strays out of bounds during the questioning of a witness, the opposing attorney will make an objection. The judge then rules on the objection by either sustaining, overruling or admonishing the attorney to redirect. Particularly egregious violations of the rules of the game can lead to mistrial and/or sanctions against the offending party. So, to recap, the jury never gets to hear the "whole truth". They get to hear what the judge and the attorneys have agreed they can hear. Fair rarely enters into it.

Back to witness testimony. The opposing attorney can question the other sides witness on cross examination. This will go back and forth on redirect or rebuttal until both sides are satisfied that they have made their points with a particular witness.

After the plaintiff rests their case, the defense can file a motion for directed verdict asking the court to render in their favor usually arguing that the plaintiff did not provide sufficient evidence to prove their case. It is rare to see a court grant a directed verdict. Following the denial of the motion for DV, the defense gets to put on their case in chief if they so choose. Same rules apply as before. Plaintiff can cross exam the defense witnesses.

Once the defense rests their case, there is the charge conference in which the attorneys present proposed jury charges to the court. The court hears arguments on the respective charges and eventually a decision is made as to the final charge which will be given to the jury.

After the charge has been decided, the attorneys are ready to give their closing arguments. This is where they have the final opportunity to give the jury a road map to what they think the evidence proves and any damages that should be awarded. Here again, plaintiff goes first and defense goes second. There is one exception here. After defense gives their closing argument, the plaintiff has the option to give a rebuttal (if they have reserved some time for it). The plaintiff is, in effect, given the last word before the jury begins deliberations.

Jury deliberations are an interesting animal. I have had the pleasure of watching a mock trial involving three full jury panels in which the "jurors" believed that they were actually rendering the verdict in a case. The first thing that happened when deliberations began was that the jurors ignored the judge's admonitions and talked about everything they were told not to discuss or consider.

One of my co-workers (a woman) has a theory about jury deliberations. Her theory is that the most opinionated woman on the jury will sway the panel to her position. Here's how she gets there (and she has been on a jury herself): Men, when arguing, tend to state their position, say what they have to say and then fold their arms across their chest. At that point, men are done arguing. They have nothing else to say. Women, on the other hand according to her, will keep yapping until everyone gives into her just to get her to shut up. Frankly, I'm not entirely sure she is wrong.

Jury dynamics and feedback is a whole 'nother other can of worms. Needless to say, jury verdicts very rarely hinge on the facts or evidence and oftentimes have more to do with something completely unrelated to the case than anything else.

Now, after the jury is done messing around, you get a verdict. Let's talk about the economics of that verdict for a moment.

Let's say for the sake of argument that the amount of the verdict is $1,000,000. Does that mean the plaintiff gets $1,000,000? Hell no. First off, on the plus side, the verdict is subject to pre- and post-judgment interest. Here in Texas, for simplicity's sake, it's 5% per annum simple interest (i'm not going to bore you with all the details of when it starts accruing). So, if it took you 2 years to get to trial, that's $50,000 per year in interest (again...for the sake of simplicity). So, we are up to $1,100,000. Now the fun really begins because that $1.1 million has to pay the attorney, the experts, the expenses and cover any unresolved economic damages (such as outstanding medical bills or workers compensation benefit liens).

Plaintiff attorneys typically work on what's called a contingency basis. This has its benefits and drawbacks as I will attempt to explain. A typical contingency contract states that an attorney will take a percentage of the total recovery plus expenses. The plus side is that the attorney takes nothing if they recover nothing. Most of the contracts I've heard of use a sliding scale. The attorney will take 33% if the case resolves before suit is filed, 40% if it resolved after suit but before trial and 50% if the case goes to trial and verdict. That percentage is taken often calculated AFTER expenses have come off the top. So, if an attorney spends $100,000 on things like court reporter fees for depositions, expert fees, exhibits, advances, travel, etc., he or she is going to take that $100,000 off the top and then take their percentage of what's left. Using our hypothetical verdict, that means that the plaintiff would be netting $500,000 from a $1.1 million verdict BEFORE any unsatisfied economic damages have been paid.

The drawback to a contingency fee is that, in smaller cases, it is frequently possible and even highly likely for the attorney to make more than their client and even for the client to net NOTHING. You mean to tell me that I could be patient, wait all that time, slog through trial after beating the odds to get there and still get nada, zip, zero?

Yep, you betcha.

So, why don't you hear more about that?

In a word, ethics. Most insurance claims professionals are ethically prevented, if not legally prevented in some states, from encouraging or discouraging someone from engaging the services of an attorney. It has to do with conflicts of interest and the unauthorized practice of law. I can get away with it here since I am not advising anyone on the specifics of their particular case or trying to dissuade them from seeking the advice of counsel as I am just merely presenting factual information for your enjoyment and edification.

In fact, I will go one better. I encourage you, should you find yourself in a situation in which you may need to consider litigation, to consult an attorney. Actually, you should probably consult at least three (many will offer the initial consultation for free or for a small fee) to comparison shop not only their opinions of your case but their fees as well. Then, you can make an informed decision of whether or not it is a wise investment of your time and money to pursue your claim further.

Just know that the value of your case is not likely to magically increase in value for the claims person just because you've retained an attorney.

Thus endeth this lesson.  

A Little Humor

Ed. - I've been cleaning up my email folders here recently and came across the following gem that still tickles me every time I read it because I can see it happening for real. Rule number one for any attorney is to know the answer to the question before you ask it.

In a trial, a Southern small-town prosecuting attorney called his first witness, a grandmotherly, elderly woman to the stand. He approached her and asked, 'Mrs. Jones, do you know me?' She responded, 'Why, yes, I do know you, Mr. Williams. I've known you since you w ere a boy, and frankly, you've been a big disappointment to me. You lie, you cheat on your wife, and you manipulate people and talk about them behind their backs. You think you 're a big shot when you haven't the brains to realize you'll never amount to anything more than a two-bit paper pusher. Yes, I know you.'

The lawyer was stunned. Not knowing what else to do, he pointed across the room and asked, 'Mrs. Jones, do you know the defense attorney?'

She again replied, 'Why yes, I do. I've known Mr. Bradley since he was a youngster, too. He's lazy, bigoted, and he has a drinking problem. He can't build a normal relationship with anyone, and his law practice is one of the worst in the entire state. Not to mention he cheated on his wife with three different women. One of them was your wife. Yes, I know him.'

The defense attorney nearly died.

The judge asked both counselors to approach the bench and, in a very quiet voice, said, 'If either of you idiots asks her if she knows me, I'll send you both to the electric chair.'

Liberty in America: A Political Theory

I've been meaning to sit down and write this post for a while now. It just so happens that, today, I am sitting here at the office twiddling my thumbs doing nothing since today is "moving day" and we can't do any productive work since everything is boxed up and shut down. Everything but my trusty iPad that is.

Anyway, let's talk about freedom and liberty for a bit. I am going to try to avoid using terms that come too heavily "loaded" with excess baggage, but I want to take a second here to give a couple of definitions to set up a common frame of reference for the rest of the discussion.

First, let's look at the definition of "liberty" from the Merriam-Webster online dictionary:

LIBERTY

1: the quality or state of being free:

a : the power to do as one pleases
b : freedom from physical restraint
c : freedom from arbitrary or despotic control
d : the positive enjoyment of various social, political, or economic rights and privileges
e : the power of choice

When I talk about liberty here, I am mainly focusing on the first part of the definition above. Specifically, I believe liberty, true liberty, is the state of being free and having the power to do as one pleases (within certain easily definable boundaries...i.e. your freedom of action ends when it interferes with the freedom of action, health or welfare of another). The other aspects of liberty mentioned in the definition are part and parcel with that in my humble opinion. It's hard to do as one pleases when under physical restraint for instance.

Moving along, let's look at the definition for "freedom" (same source):

FREEDOM

1: the quality or state of being free: as

a : the absence of necessity, coercion, or constraint in choice or action
b : liberation from slavery or restraint or from the power of another : independence
c : the quality or state of being exempt or released usually from something onerous
d : ease, facility
e : the quality of being frank, open, or outspoken
f : improper familiarity
g : boldness of conception or execution
h : unrestricted use

2

a : a political right
b : franchise, privilege

As you can see, the definitions of freedom and liberty are very closely related; and, in my opinion, one cannot exist without the other. There are a couple of concepts buried in the definition of freedom that should be emphasized though. Those are: independence and privilege. Freedom IS a privilege. It is one that must be guarded and protected. Freedom also requires independence. Once independence is lost and the majority slide into dependence, freedom is gone as well. Keep your thumb here or highlight it or something. We'll be coming back to this concept in a minute.

Finally, for purposes of this discussion, political terms such as right/left, Republican/Democrat, liberal (or progressive if you prefer)/conservative, etc. will be used in the manner consistent with common usage as of this writing as opposed to any historical or rhetorical connotations that may rightly or wrongly apply.

Moving along, let's get into the back story leading to the formation of my theory. I don't recall exactly where or when I read it; however, there was a blog article a while back making the argument that Americans have been duped into thinking that the government has to take a side on any given issue (gay marriage in the case of this particular article but the author later generalized the point to apply to all issues). The writer went on to argue that, in reality, both sides of any given argument were shooting themselves in the foot by insisting that the government get involved in something that was NONE OF ITS BUSINESS.

Think about that for a moment. Take, for example, the issue identified by that article. Where in the Constitution does it say that gay marriage (or straight marriage for that matter) is any of the government's business? I'll help you with this answer: NOWHERE! And, yet, here we have people on both sides of the issue yielding their independence by depending on the Government to take a stand by denying the liberty and freedom of people on the other side of the issue by enforcing one side the views of one over another. How absurd is that?

Whichever side the government takes regardless of the issue, there is corresponding legislation, regulation and government bureaucracy necessary to enforce that position. Look no further than the news regarding the implementation of Obamacare (I am using the popular term here because I am too lazy to write out the full name of the bill not for any pejorative connotations the term may have) and all the rules and regs and people needed to sort that out.

Even Starbucks is smart enough to stay out of issues that are none of its business. Starbucks is in the business of selling coffee, and they have wisely decided that their views on the Second Amendment, whatever they may be, have nothing to do with the business of selling coffee. They gain absolutely no benefit from taking a stand one way other the other; and, in fact, they risk alienating a significant percentage of their customer base BY taking a stand. 

To be fair, that's an overly simplistic and non-analogous comparison; but, the point remains that there are things defined by the Constitution that ARE the government's business and things, thanks to the Tenth Amendment of the Constitution, that ARE NOT the government's business.

Quick refresher for those who have not read the Constitution lately:

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

Now, let's back up a bit for some history leading up to the Constitution. I'm sourcing heavily from Wikipedia for this next bit (again, because I am lazy as opposed to any endorsement or condemnation of Wikipedia's greatness).

Prior to the War for American Independence or Revolutionary War (depending on which history book you read), there was a shift in political philosophy thanks to the Enlightenment. In particular, the long held belief in the divine right of monarchies to rule over subjects started suffering from some serious setbacks starting with the notable regicide incident in England during that little dispute between Oliver Cromwell and Charles I.

One philosopher in particular, John Locke, had a huge influence in this area of thought. To quote from Wikipedia:

"John Locke's (1632–1704) ideas on liberty greatly influenced the political thinking behind the revolution, especially through his indirect influence on English writers.[clarification needed] He is often referred to as "the philosopher of the American Revolution," and is credited with leading Americans to the critical concepts of social contract, natural rights, and "born free and equal."[6] Locke's Two Treatises of Government, published in 1689, was especially influential; Locke in turn was influenced by Protestant theology.[7] He argued that, as all humans were created equally free, governments needed the consent of the governed.[8] Both Lockean concepts were central to the United States Declaration of Independence, which deduced human equality, "life, liberty, and the pursuit of happiness" from the biblical belief in creation: "All men are created equal, ... they are endowed by their Creator with certain unalienable Rights."

As we continue rolling forward in history to the revolution itself, we find the rhetoric of the time rooted in freedom and liberty. Notably, Patrick Henry did not say "Give me Democracy or give me death." He said, "Give me LIBERTY or give me death." Even The Declaration of Independence, based on the ideas and philosophy of John Locke says, makes a strong argument for liberty with the line "...the pursuit of life, LIBERTY and the pursuit of happiness."

Once the war was one and the leaders of the new nation came together to hammer out a social contract based on Locke's ideas. We see this codified in the Preamble of US Constitution:

"We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America." [emphasis mine]

So, why did I go through all of that, and what do I think it means as far as a political theory goes?

Think of the political spectrum as a bell curve. There are relatively few radicals on either side of any given issue while the vast majority reside somewhere in the middle. Call it 10/80/10 or 20/60/20. It is my theory that the vast majority in the middle of the bell curve just want to be left alone to live their lives as they see fit while it is the outliers on either side of the curve that see it as, not only their right, their mission in life to make everyone else live the way they think they should.

By doing so, by insisting that the government pick a side where it has no business being in the first place, these radicals on either side have yielded their independence, their freedom and liberty if you will, in favor of dependence upon the government to define their lives.

If a politician wants to really shake things up, it is my belief that they should not promise to take a stand on this or that side of an issue. Instead, they should promise to leave everyone alone and stick to the things defined by the Constitution as the government's business.

Unfortunately, I don't see that happening anytime soon with the way things are going now.

A Little Light in the Darkness...

I thought I would take a few minutes out of the day to post a brief update on life at Castle Erickson; but, first, we gots to welcome us a new follower. K (no relation) at Planning and Foresight found his way here and chose to stay a while. K's blog is focused on prepping and is jam packed with good info. I'm slowly digging through his archives when I have time. Good stuff. Check him out.

Now then, on with the show.

Mini Me and The Banshee are still with us. There were mumblings in the winds a couple of weeks ago that they might be going back to momma sometime around the first of November. There is a permanency conference set with the court then, and the caseworker was going to be recommending monitored return (kids go home while CPS keeps an eye on things for six months or so).

The key word there is "was".

Apparently, some medical records came in that were not kosher and some required classes and counseling have not been started much less completed. We don't get the details, just the outline of the story. Suffice it to say, the caseworker is backing off her earlier hints and is reverting back to square one which also involves trying to locate viable family member placements. That leaves us back to being in limbo with those two.

It's really a sad situation. While not parent of the year material, momma and daddy/step daddy really do genuinely love those kids from the interactions we've seen with them together. CPS has candidly told us that the kids never should have been removed in the first place (it was apparently the result of momma's child molester step father who called in a false report out of spite) and that they do not have grounds for termination of rights. But...they are in the system now which has its own set of rules and timelines.

The Queen and I really love those two kids despite The Banshee's tendency to scream at every opportunity, and we really want to see them reunited before we exit the system; however, we can't hang around forever waiting for CPS and the parents to sort this mess out. We need to get on with our lives as a family (hopefully with M&M in tow). The really frustrating thing for us is that the parents could have had their kids back by now if they had just done what CPS had asked them to do. Instead, they are wallowing in denial (his alcohol consumption..."it's not a problem") and co-dependence ("I'm going to leave him...I can't afford to be on my own."). Meanwhile, The Queen and I beat our heads against the wall and try to make the best of it.

M&M, on the other hand, is an entirely different story. We have received word that the trial on the bio parents' rights case is set for the last week of November. There is pretty much a 100% chance that their rights will be terminated at that trial. They have left the state, and CPS could pursue child abandonment charges if they were so inclined. That would add a six month delay to the whole thing, and CPS is taking the wiser course of just moving for termination on the existing evidence.

But wait, it gets better. The Queen and the CPS caseworker had a discussion last week. Almost everytime we've talked with the caseworker up to this point, she has been very careful to always remind us that she has to keep looking for family members, there's no guarantee we will get to keep M&M, yada yada yada. For the first time, the caseworker told us even if the momma's mom's home study is approved by her state, SHE has the power to deny it. She also started saying things like "it's looking like we are on track", etc.

[blink, blink] Who is this, and what has she done with our caseworker?

Ah, but there's more. Yesterday, I got a call from M&M's ad litem (the court appointed attorney to represent M&M's best interests). She called to let me know about the trial setting. She also said she would be coming by the house for one last visit so she can write her final report. She indicated she would be recommending to the court that The Queen and I be allowed to adopt M&M.

[blink, blink, blink] I promise I'm not gonna cry. I might be tearing up as I write this, but you can't see it. So, it's not happening.

So, what happens from there? After rights are terminated, the court has to physically serve them with notice of the termination. Since they are out of state with no known address, that may be difficult. Fortunately, the law allows alternative means of service. Most likely, they will be served via publication in a paper of record. Once that occurs, they will 60 days to file an appeal. The court does not have to accept the appeal, and the likelihood of an appeal being accepted under the circumstances are miniscule. The chances of an accepted appeal being successfully granted in the Tarrant County court of appeals...infinitesimal.

Once the time to file an appeal runs or an appeal is rejected/denied, we are free to adopt M&M as soon as a hearing can be scheduled which we hope will be the very next day.  So, unless a miracle happens, the earliest we will be able to adopt M&M is late January.

The Queen and I are beside ourselves. We can't wait for the end of November and end of January to get here. This has been a very emotional journey, and one that, frankly, we do not want to repeat. It has also been a miraculous journey in a lot of ways. I am working on writing the full story to post here. I believe those who are people of faith will see a series of miracles and God's influence leading to an inevitable conclusion. Those who are not religious may not see it that way, but I think they will find it an inspiring story nonetheless.

We have already made the decision that we will be getting out of the foster care system once the adoption is final. Staying in is not an option for either of us. There are too many restrictions. It is too frustrating. We want our freedom back. Whether or not that will impact Mini Me and The Banshee directly remains to be seen. We hope that they will have already moved on to where they need to be by then. If not...who's to say at this point?

In the meantime, don't start planning the party yet...but expect an invitation.

Old Wisdom

"State interference is an evil, where it cannot be shown to be a good. Universal insurance, if desired, can be better and more cheaply accomplished by private enterprise. " Oliver Wendel Holmes, The Common Law.

D'oh...[Face Palm]

I really, really hate it when I make a mistake. I really and truly loathe it when I make a mistake on something important. For instance, my law school application. I dutifully logged in to the super secret status check page thoughtfully provided by Texas Wesleyan this morning hoping for, but not expecting, an update since this is their first day back in the office after Spring Break. 

Lo and behold, there was a status update. At 8:30 something this morning no less. The status said:

we noted that your application had incomplete Character and Fitness information

They provided me with a person and a phone number to call (the same one that was listed last week) which I did immediately. The person answered the call on the second ring...at 8:30 something this morning no less. I was expecting her to tell me that they were waiting on the last of my letters of recommendation to come in. 

I was not expecting her to tell me that my college transcripts didn't match up with the info reported in my application. Question 10.(a) of the application reads thusly:

(a)  Has any college, university, or law school ever dropped, dismissed, disciplined, disqualified, or placed you on academic probation for academic or behavioral reasons or were you allowed to resign or withdraw in order to avoid academic or disciplinary action?  Are any disciplinary charges pending or expected to be brought against you at any college or university?  (The record of such action need not be retained in your file to require disclosure.)         

When I first submitted my application, I answered that question in the negative. 

Imagine my surprise this morning when I was informed that my college transcript reflected academic probation from fall of 1990 to spring of 1992.

D'oh!

I had completely forgotten about ever being on probation even though my college grade reports, which I have dutifully kept even after almost 20 years, clearly states that I was on probation during the time frame in question. I guess I should have taken a closer look at those grade reports before completing my application. I don't even have a good excuse for it like being in the middle of fraternity hazing or incapacitated by a horrible accident.

So anyway, the nice lady at Texas Wesleyan explained exactly what I needed to do which was submit an updated application page correcting 10.(a) from "no" to "yes" with a written explanation as to why that particular college felt the need to stick a dunce cap on my head for the better part of a year. I cobbled together what I feel is a plausible if somewhat vague explanation true to the best of my knowledge given the fact that it's been almost 20 years since and I have no specific memories of much of anything relating to the three courses that I failed leading to my probation. Much has transpired since then as you might imagine.

Hopefully they will have mercy on me given that: 1) it's been 20 years, 2) my GPA from my major courses was 3.15, 3) I did make the honor roll after being released from probation, and 4) I've spent the last 15 almost 16 years handling litigated insurance claims. That and 5 lawyers were willing to sign their names to letters stating that I know what the heck I'm doing and would make a good lawyer...without me paying them to say so.