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December 2012 Archives

Win for Social Security Disability client with severe psoriasis and arthritis: Federal District Court Remand

O'Malley Tunstall, PLLC filed suit on behalf of Penny Hartman against Social Security for its denial of her disability benefits in 4:12CV46 Federal Court Eastern District of North Carolina. Federal District Court Judge Boyle found that Ms. Hartman suffers from severe psoriasis and arthritis. The psoriasis affects her ability to concentrate because of pain and discomfort. She has to wear loose fitting pajamas and bed room slippers because regular clothing causes additional pressure on the psoriasis making it crack and bleed. You can only file suit against Social Security after all administrative proceedings have been exhausted (application, reconsideration, hearing, review of hearing by Appeal's Council). Judge Boyle found that the questions asked by the Administrative Law Judge working for Social Security to the vocational expert did not include all of the limitations that Ms. Hartman suffers. "The purpose of hearing testimony offered by the VE is to assist the ALJ in determining whether there are jobs available in the national economy which the particular claimant can actually perform." (Order page 4 citing Walker v. Bowen, 889 F.2d 47 (4th Cir. 1989)) "The [question] pose by the ALJ must adequately convey to the VE the claimant's impairments that affect her ability to function." (Order page 4 citing Fisher v. Barnhart, 181 Fed Appx. 359, 364-65 (4th Cir. 2006) (unpublished)) Judge Boyle found "Given the extensive, severe and disabling nature of the Plaintiff's psoriasis, the [question] posed by the ALJ fails to sufficiently address the severity of the situation." (Order page 4). The case has been remanded for further development of the VE testimony and consideration by the ALJ of the full range of our clients medical limitations. Congratulations to our Social Security team and specifically Susan O'Malley for her excellent work on this case. Board Certified Social Security Specialist -- Susan O\'Malley For more information on Social Security visit our website.

Cross Examination in an automobile collision or personal injury trial

Learning to do a cross examination is like learning to do anything else; you must practice, make mistakes and then learn from those mistakes to correct and hone your craft. If you ask a practicing trial lawyer, most will agree that learning to do a good direct examination that appears like a conversation, elicits the necessary information and does not result in constant objections is more difficult to master than a laser cross examination, however, even when you muddle through a direct, rarely can you do significant harm to your case like a poor cross examination. Below find the rules I keep posted in my trial cheat notebook. 1. Laser focus your cross examination. 2. Lead the witness, cross examination is not a direct examination. 3. Always complete your question with a yes or no answer only. 4. Follow your own order. 5. Start with eliciting helpful information for your case. 6. Don't overreach. Cross Examination is not a direct examination where you attempt to obtain information by asking open ended questions that allows a witness to answer in sentence or paragraph form. A good cross examination is a laser focused examination of what a witness has already testified to that allows you to question, exacerbate or challenge already given testimony. The work mistake I have seen over the years by adverse counsel in their cross examinations of my clients involve forgetting the point of cross examination and turning their examination into a deposition of my client. Cross examination is not the time to learn information nor is it a time to obtain information about my client that you did not already know. The old adage "Never ask a question at trial you don't know the answer to" is imperative when you are attempting to question a hostile witness. If you ask an open ended question whereby you are attempting to elicit information, you give that person an opportunity to spin and frame their answer in such a way that negatively impacts upon your case, i.e. you are no longer doing your job. Cross examination, when done correctly, does not have to go on forever. In fact, if you look at the rules I use for my own cross examination, you will see I attempt to remind myself at every stage not to over embellish my cross examination. I have seen an expert derailed in a few short questions and seen trials turn with a one sentence cross. The second biggest mistake I have seen in cross examinations is to forget how to frame your questions. If you are representing someone in a courtroom than you have some advance notice of the facts of your case. The only real exceptions to this rule are prosecutors in criminal district court who have the unenviable task of framing their cross examination while an officer whispers the true facts of the case in their ear. That exception aside, we are paid to prepare our cases in advance of the hearing or trial. For cross examination that involves becoming familiar with all the facts of the case, pouring over each witnesses testimony or potential testimony if not prior deposition was given and then framing every question for that witnesses in such a way that they; a. give positive information that helps our case first, b. that we shape our other questions in such a way they can only give a yes or no answer, but the question itself suggests the answer or facts. For adverse witnesses you must lead them in the direction of the answer you want them to reach by the way you ask the question. You may interject your own beliefs, thoughts and especially interpretations of the facts as you ask your questions. You must always keep in mind your audience. In front of a judge in a bench trial I have a lot more latitude with cross but I don't need to exhaust a subject or emphasize a point the way I like to do with a jury. Often in a short cross examination I may pause after asking an important question for upwards of fifteen or twenty seconds while I look at either the witness or the jury. Fifteen or twenty seconds can seem an eternity, but not long enough to get a judge to make you move on. In an automobile collision case where a young twenty-two or three year old witness was testifying that his mother had the green light my cross was two questions. First, Mr. Taylor isn't it true that you were sitting in the backseat immediately behind the passenger seat as you approached the intersection. Second, I'm sorry you broke your arm from the impact of this collision; I'm assuming a good young man like you would never have made a claim against your own mother, you didn't did you. In that case I really never cared what Mr. Taylor had said about the light being green or red. He was in the backseat and I found it a little ridiculous the defense lawyer was allowing him to testify at all. There were several other witnesses that had already testified my client had the green light. The issue for that case was that there had not been enough impact to cause my client's back injuries. In fact, the pictures of the damage to my client's vehicle were less than impressive. Therefore, I simply wanted to use his testimony to bolster my client's claim that it was a significant impact despite the low visible damage between the vehicles. Getting in that he broke his arm without even having that the main focus of the question was a bonus. Second, in a very anti-lawsuit county, I wanted the jury to understand the son had made a claim for his own damages which had been paid by his own mother's insurance company. This was a gift from the other attorney to put this young man on the stand; I had to take advantage of it without looking like a jerk. Always make sure your questions on cross end with only a yes or no answer. It does you no good to frame your question in such a way that helps you only to leave the door open for a witness to be able to explain away the answer. Yes, a very well prepared witness can always answer with, yes or no and then explain, but rarely does that help them and instead it appears they are trying to talk their way out of the answer rather than giving a good answer. The old lawyer saying is three hours of preparation for every hour of trial is never as true as in cross examination. Spend your cross examination time drafting numerous statements you want the adverse witnesses to say and then turn them into questions. Isn't it true that... is an easy way to ask just about anything. Then don't forget to narrow down your list of questions into a few narrow but powerful statements. Cross is still a laser being used as a paintbrush. You're cutting away the previous testimony to get to the heart of your issue with the witness and leaving a visual image in the jurors' minds. The visual image you want the jury to remember about a witness often does not follow in the same order as direct. You should never start by apologizing to the jury or the witnesses for skipping around, just do it. If you follow the same order as the direct examination you make it easy for the jury but you don't paint the visual image you wanted to paint, instead your helping to paint the other sides visual. Start by eliciting anything helpful. Why, well if I attack you first are you more likely or unlikely to help me? You also should never forget the idea of primacy and recency. I like to start cross by pulling out any fact that could help support my client's version of events and finish with the most helpful negative statements about the witness. This is not set in stone. If the witness has made big points you may need to take those points, those swords used against your client and break them over your knee one at a time without regard for pulling any positive information from the witness, or finishing with an obvious point the witness must agree with that makes their previous point look ridiculous. Don't forget, cross examination is your friend, use it as a tool. You pick the order of questions that best helps your client's position. It is also okay to jump back and forth between two or more unrelated points if you can get concessions or admissions from the witnesses on those points. Learning when to stop a cross examination and when to just not cross examine a witness at all is all about experience. If there is nothing you can gain, no positive point to make or concession your sure to draw out, sometimes it is better not to ask anything. In a civil case often the defense not asking any questions of a lay witness is more powerful than asking if they are friends and if the witness will do anything for their friend. Those questions just aren't helpful as the jury can put themselves in the position of the person testifying for a friend and would be annoyed by the implication the witnesses would lie for a friend. This does not mean you simply don't cross a tough witness. Often young attorneys will not cross a witness if they are unsure how to handle the witnesses and it appears to the jury that the attorney is admitting or consciously agreeing with the testimony. Even if you ask one question and make a point, even a little point, it makes since to ask that question if the witnesses hurt you. Less is often more in cross examination. Don't overreach and try to make the knockout blow in one sentence. The witnesses may not agree that it was a hard impact that could have injured someone, but they may agree with you that several people complained of pain at the scene, that the vehicle was pushed sideways by the impact, that the suddenness of the impact scared them, and that the plaintiff was very nice at the scene. Cross examination can also be the death of a thousand small cuts. I have seen good attorneys cut apart a witness and never go head to head with them. Instead they took individual statements they have made and by getting the witnesses to agree to these statements, that on a whole make them look ridiculous, accomplish more than they could have by attacking them directly. After conducting hundreds of cross examinations in trials and hearings, one resource still stands out; The Art of Cross-Examination by Francis L. Wellman. This book sets out the true art that is involved in examine a witness. I believe this book is now on the fourth edition and it gives a look into the human mind and the way humans interact that explains why attacking someone head on is so difficult. I cannot recommend this book enough. After reading the original book, recommended by my senior partner when I first began practicing law, the idea of attacking a witness through small, organized statements that they must agree with without taking the witnesses statements head on first began to make sense. I have always kept the information learned in this book in the back of my mind as I prepared for more and more cross examinations. One example in the book discusses multiple witnesses to the same incident each having slightly different perspective and thus each remembering the incident differently. You cannot change what someone believes they saw, but you can certainly get them to agree to enough facts so that the jury understands how those similar facts make your client's version of events more credible. The book also talks about the honest vs. dishonest witness. It is almost impossible to truly cross examine the dishonest witness as they will not agree with the facts that are obvious and will continue to push their viewpoint rather than the truth. Remember cross examination should not be about taking a sledge hammer to concrete, but instead like using a laser to cut a distinct line through marble.

O'Malley Tunstall: Annual Christmas Party 2012

Our office had a wonderful annual Christmas Party on December 5, 2012 at Ribeye's Restaurant in Tarboro, NC.  We like to celebrate our wonderful attorneys, paralegals, investigators and legal assistants.  Our professional work environment cannot be overstated.  Susan and Joe are so blessed by our wonderful hardworking staff.   [gallery]

Is inadequate lighting enough to demonstrate negligence?

Our NC Court of Appeals recently heard the case of Cone v. Watson (COA12-670)argued by two of the stars of the Eastern NC Bar where the issue was whether a fall down inadequately lit stairs was enough to demonstrate negligence. The Court found that failure to illuminate stairs where one would leave a business after dark is enough for the jury to determine if the defendant was negligent. The Court found: North Carolina landowners . . . are required to exercise reasonable care to provide for the safety of all lawful visitors on their property. Whether a landowner's care is reasonable is judged against the conduct of a reasonably prudent person under the circumstances. There is no duty to protect a lawful visitor from dangers which are either known to him or so obvious and apparent that they may reasonably be expected to be discovered. Kelly v. Regency Centers Corp., 203 N.C. App. 339, 343, 691 S.E.2d 92, 95 (2010). Our Supreme Court has said that "[i]f [a] step is properly constructed, but poorly lighted, and by reason of this fact one entering the store sustains an injury, recovery may be had." Garner v. Atlantic Greyhound Corp., 250 N.C. 151, 159, 108 S.E.2d 461, 467 (1959). (A) defendant breaches her duty to a lawful visitor if she fails to provide adequate lighting such that a reasonably prudent person would be likely to expect or see the step. See York, 264 N.C. at 455, 141 S.E.2d at 868-69. Therefore, our Court has found that failure of a business to properly light the entrance and exit of a business may be enough to show negligence on the part of the business owner. For more discussion about negligence, visit our website.

Social Security Disability, SSI if you cannot work forty (40) hours a week

Many of our clients at O'Malley Tunstall who are disabled don't fit any of the boxes set forth by Social Security to determine disability. Instead they simply, due to a series of disabilities, lack the ability to work forty (40) hours per week. A great many of these clients have twenty (20) or more years of work history and although they have tried to work through their disabling medical conditions, simply cannot work enough to keep full time employment. Substantial gainful activity on a regular and continuing basis means eight hours a day, for five days a week. SSR 96-8p "An individual does not have to be totally helpless or bedridden in order to be found disabled under the Social Security Act, otherwise, the ability to perform substantial gainful activity even one day each month or each year would disqualify an individual for benefits." Trotten v. Califano, 624 F.2d 10, 11-12 (4th Cir.1980)(citations omitted). Implicit in a finding that a claimant can perform light work is the conclusion that a claimant can work eight hours a day, five days a week.Hines v. Barnhart, 453 F.3d 559, 563 (4th Cir. 2006). You can read about the Hines case in one of our other blogs as this was Susan O'Malley's Case. Therefore, if after years of working full time, medically you are restricted to little if any work, you may be disabled even if you don't meet one of Social Security's boxes. Call our law firm or visit our website to discuss.

Federal District Court Judges can grant Social Security Disability Benefits without remanding for further Hearings

THE FEDERAL COURT HAS AUTHORITY TO REVERSE THE DECISION OF THE SOCIAL SECURITY ADMINISTRATION WITHOUT REMANDING FOR A REHEARING. As a procedural matter, when you appeal the decision of the Social Security Administration to Federal Court, the Federal Court has the authority to overturn the decision of the Commissioner and grant benefits without remanding for an additional hearing. Susan O'Malley has had this issue come up as in some cases Federal District Court Judges have been so convinced that her clients should have their benefits; without delay, that remand for additional appeals or evidence has been unnecessary. The Fourth Circuit has held that it is appropriate for a federal court to "reverse without remanding where the record does not contain substantial evidence to support a decision denying coverage under the correct legal standard and when reopening the record for new evidence would serve no purpose." Breeden v. Weinberger, 493 F.2d 1002, 1012 (4th Cir. 1974). A plain language reading of the Social Security Act supports this interpretation: "[t]he [reviewing] court shall have power to enter ...a judgment ... reversing the Commissioner of Social Security, with or without remanding the case for a rehearing." 42 U.S.C. § 405(g)(emphasis supplied). Thus, when the procedural posture dictates, new fact-finding is irrelevant, or another hearing will not change the outcome, at O'Malley Tunstall, our Social Security team will specifically argue that the District Court should overturn the Commissioner's decision, and grant benefits, without remanding. If you have specific questions regarding Social Security Disability or our Social Security team, please visit our website, or ask for Susan, Amos or Joe as all the attorneys in our office handle Social Security Disability at the hearing and appeal level.

Injury while on lunch break; is it workers' compensation in North Carolina?

The Court of Appeals recently dealt with the issue of an injury to an employee while on an employer mandated lunch break in the case of Mintz v. Verizon Wireless, COA12-306, 2012 WL 5846239 (N.C. Ct. App. Nov. 20, 2012). The Court agreed with the Industrial Commission and found that there is a causal relationship between plaintiff's employment and her injury because she incurred her injury based on a condition in her workplace. "Plaintiff was injured in a common area of the building, and the record indicates that employees were not only authorized but also encouraged to go to the first floor since Eurst, the cafeteria for employees, was located there, and employees had authorization to walk through the hallways on the first floor. Thus, we affirm the Full Commission's conclusion that plaintiff's injury "arose out of" her employment." Mintz v. Verizon Wireless, COA12-306, 2012 WL 5846239 (N.C. Ct. App. Nov. 20, 2012). Defendants argued: (1) plaintiff's injury did not occur at a time reasonably related to her employment since she was on an unpaid lunch break; (2) defendant-employer did not control or own the building where defendant was injured; and (3) plaintiff was not engaged in activities related to her employment. The Court of Appeals disagreed for the reasons below. "With regard to determining whether an injury occurs "in the course of" employment, this Court has concluded that The words [i]n the course of have reference to the time, place and circumstances under which the accident occurred. Clearly, a conclusion that the injury occurred in the course of employment is required where there is evidence that it occurred during the hours of employment and at the place of employment while the claimant was actually in the performance of the duties of the employment. Harless, 1 N.C.App. at 455-56, 162 S.E.2d at 52. With regard to the time element, "the course of employment begins a reasonable time before actual work begins and continues for a reasonable time after work ends and includes intervals during the work day for rest and refreshment." Id. at 456, 162 S.E.2d at 53 (emphasis added). Defendants allege that this element is not met because plaintiff was on an unpaid lunch break. The Full Commission determined that plaintiff's injury occurred during a time in her work day "built in for the employees' rest and refreshment." Moreover, the Full Commission noted that defendant-employer requires its employees to take an hour-long lunch break. While defendants focus on the fact that plaintiff was injured during an unpaid break to support their argument that the injury did not occur at a time reasonably related to her employment, we have no support in our caselaw for the proposition that the element of time is not established if an employee is on an unpaid break. Here, plaintiff's injury occurred during the hours of employment, even though it happened during an unpaid break. Thus, the Full Commission's conclusion accurately reflects that "in the course of" includes times during the workday for rest and refreshment. See Harless, 1 N.C.App. at 456, 162 S.E.2d at 53. Therefore, we affirm the Full Commission's conclusion of law with regard to the element of time. With regard to the element of place, defendants contend that the Full Commission's conclusion of law no. 5 was erroneous. Moreover, defendants allege that findings of fact nos. 4-8, to the extent they infer defendant-employer maintained or controlled the building, were not supported by competent evidence. Place is considered the "premises of the employer." Harless, 1 N.C.App. at 456, 162 S.E.2d at 52. While the Full Commission noted in its findings that defendant-employer no longer owned the building where plaintiff worked, it indicated that "[d]efendant[e] mployer continued to be the main tenant in the building and maintained and controlled all activities occurring in the building." These findings were supported by competent evidence in the record that established all other contractors in the building, including the cleaning contractors, mail room, security, and Eurst, provided services to defendant-employer. Moreover, the only other business, Strayer University, offered services exclusively to employees of defendant-employer. Based on these findings, the Full Commission concluded that because "an accident may be compensable if it occurs on the premises of the employer or adjacent premises that are owned or controlled by the employer[,]" the element of place was met because defendant-employer "still essentially controlled the building, including the common area in which [p]laintiff fell." In support of its conclusion, the Full Commission cited Strickland v. King, 293 N.C. 731, 239 S.E.2d 243 (1977), and Bass v. Mecklenburg County, 258 N.C. 226, 128 S.E.2d 570 (1962). In Bass, our Supreme Court noted that "injuries sustained by an employee while going to or from his place of work upon premises owned or controlled by his employer are generally deemed to have arisen out of and in the course of the employment ... provided the employee's act involves no unreasonable delay." 258 N.C. at 232, 128 S.E.2d at 574. Here, there was competent evidence that plaintiff was injured on premises essentially controlled by defendant-employer while she was returning to her cubicle from the first floor of the building during her lunch break. Thus, the conclusion that the element of place was met is justified, and defendants' argument is without merit. See, Mintz v. Verizon Wireless, COA12-306, 2012 WL 5846239 (N.C. Ct. App. Nov. 20, 2012). Thus the Court of Appeals confirmed that Plaintiff was within the Course AND Scope of her employment at the time of her injury. Visit our website for more information on North Carolina workers' compensation.

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