The Non-party Fault Strawman

One common defense theory that has come along in the age of tort reform is the apportionment of non-party fault.  Many state legislatures have now codified this into state law, and other states have had it introduced through the promulgation of a rule of civil procedure by the judicial branch.

Non-party fault has traditionally arisen in matters where the Plaintiff has settled with one Defendant but takes the remaining defendants to trial.  In this instance, of course, all fingers of the remaining defendants commonly point to the settling defendant.  Juries have historically been allowed to apportion fault by way of assigning a percentage of fault as to each party (if they get that far, of course).

Now, however, many states are allowing parties who were never a part of the suit to be named as possible joint tortfeasors pursuant to new non-party fault rules or statutes.  In these scenarios, a Defendant can put the Plaintiff on notice that it intends to have other non-parties placed on the verdict form along with the named Defendants.

Not only is this an attempt to dilute the possibility of a full verdict, it can be used as a smokescreen to completely divert the attention of the jury from the facts at issue in the case.  Careful research will show that in most jurisdictions, the defense will have to (a) provide prima facie evidence of the non-party fault, along with (b) that the non-party is a joint tortfeasor or they were otherwise acting in concert.

The law in many states will require the Defendant to name the non-party or otherwise provide sufficient identity in order to permit service of process in the event the non-party is added as a party following the notice. Further, the defendant should be required to state in concise language facts showing that the non-party is at fault.  Many states will limit the types of cases that allow for a notice of non-party fault to personal injury, medical negligence, property damage, or wrongful death alleged by the claimant.

In addition, the Plaintiff may have grounds to object to the notice if it is filed so close to the trial date so as to prevent the Plaintiff from (a) investigating the assertion or (b) name the non-party as a Defendant prior to trial.  Of course, the Defendant has the right to actually bring these non-parties into the suit by way of a Third Party Complaint, but this mechanism allows for a simpler process to try and muddy the water for the jury.

Defense tactics can cause worry and anxiety when filed at the last minute.  For these reasons, it is imperative to hire a veteran personal injury lawyer Little Rock AR relies on who has experience in these types of pleadings.

SHThanks to Steve Harrelson and our friends and co-contributors from Harrelson Law Firm, P.A. for their added insight into the non-party fault strawman.

5 Musts for a Successful 1031 Exchange

1031 Exchanges are becoming a very common facet of the commercial real estate industry.  Simply put, a 1031 exchange is the swap of one investment asset for another investment of similar kind.  The benefit is that you can upgrade your investment without the need to pay a capital gains tax at the time of exchange.  With no limit on the number of times you can do a 1031, you are able to continue growing your investment tax deferred until you eventually decide to sell your asset(s) for cash.

However, to be successful with a 1031 Exchange, you have to play by the rules.  Here are our suggestions for the 5 must-dos for a smooth and successful exchange.

1. Determine what is deferred capital gains and what is depreciation recapture.  Many capital assets use depreciation to spread the cost of an asset over a period of time.   This reduces the asset’s adjusted cost basis and as a result, creates a higher capital gain on the sale of the asset.  Before beginning the 1031 Exchange process, you will want to ensure your accountant has a firm grasp on these numbers and is able to guide you in the proper way to handle your depreciation and deferred capital gains.

2. Find a qualified Intermediary – reputable, credible and experienced.  For the exchange to work, cash from the original sale cannot make it into your own hands.  It goes to an intermediary, and hence it’s important that you find a reputable intermediary that can guide you through the process in a proactive manner.  The qualified intermediary will work closely with the attorneys, escrow companies, CPA, etc. At Calkain, we’ve developed a strong relationship with Bill Gessner, who we refer clients to on a regular basis.  If you have a 1031 Exchange soon to be in the works, you’d be in good hands using ES Group.

3. The property has to be held for investment or business purposes – on both ends of the transaction.  It’s a like-kind exchange of a business or investment asset.  It is not for personal use.  The 1031 cannot be used to swap out your primary residence for another home.  Like-kind refers to the nature of the investment. Any type of investment property can be exchanged for another type of investment property. A single-family residence purchased as an investment, can be exchanged for a multi-family building, raw land for a shopping center, or any other business investment.  You have the flexibility to change investment strategies to meet your needs as long as it’s business and the debt is equal or greater to the debt on the exchanged asset.

4. Know the timeline.  You have 45 days from the date of closing on the relinquished property to identify or nominate potential replacement properties.  You must Identify the potential properties (up to three without regard to value, and four or more with value restrictions) that you may acquire, in writing to your intermediary, and it is expected that you will purchase one or more of the Identified properties.

You have 180 days from date of sale to acquire and settle upon the new property.  That’s right.  You have 6 months to close the deal.  NO EXTENSIONS!  And don’t forget, this six months is from the date of sale of relinquishing the original property – not upon the completion of the 45 days provided for asset identification.  The clock starts running on both rules with the close of the original asset.

Start your search for exchange properties as quickly as possible.  It’s imperative to start your search as early as possible and ideally before you sell your original investment.  45 days, let alone six months, goes quickly.  If you need help searching out properties, contact a professional today.

CalkThanks to our friends and contributors from Calkain for their insight into 1031 Exchanges.

The Ripple Effect of a Car Accident: Neck Pain

Our bodies are subject to a ripple effect.  Just one injury can end up affecting our entire well being.  A car accident is a traumatic event that can cause residual effects on your body for weeks, months, and even years.  It can take time to assess how you feel, and a proper recovery rests on that ability.  Although each person and situation is different, there are many common injuries after any sort of auto accident.  Although each car accident has their own unique conditions — such as the angle of the collision and the position of where each person is located during the crash — many patients experience similar symptoms.  In this series, we are re going to discuss four common injuries that, without treatment, can turn into chronic problems.

By far, the most common auto accident injury is whiplash.  After the initial whiplash, the muscles tighten to protect the spine and decrease any more potential trauma to the area.  With that development, the muscles do not return to their normal length which can soreness or discomfort.  Bottom line:  After the initial trauma, the body tries to compensate for the affected areas.  This can often lead to feelings of tightness, loss of motion (hard to turn your neck), and tension headaches.

When our muscles are tightened and then shortened over time, this will cause us to lose proper posture.  What began as an injury has now turned into a bad habit, and this can be the hardest part of the pattern to break.  Not only does improper posture stagnate the recovery process, the tightened muscles in the neck can lead to chronic headaches and pain.

How do we resolve this potential cycle of pain before it begins?

Remember, the initial cause of this was the muscle group tightening around the neck and shoulders.  To keep this area flexible and relaxed, stretching is key.  Levator scapula stretches help to lengthen this muscle where it attaches to your shoulder-blade (scapula), offering better range of motion and a more relaxed position.  This, in turn, will help you to maintain proper posture by keeping your neck and shoulders neutral, relaxed, and the muscles elongated.

If you are already experiencing tension headaches, a simple stretch can be utilized by facing straight ahead, putting one hand on the back of your skull, and gently pulling your chin down to your chest.  This will lengthen the neck muscles and release any tension that has been causing headaches.

A car accident can inflict many systemic injuries, but with knowledge and consistent practice, you can stem the onset of pain.  Of course, the best way to ensure relief from chronic pain is by visiting a specialist that can cater to your exact needs.  Contact a neck pain doctor Rockville MD trusts today.

advanced spine and wellness centerThanks to our friends and contributors from Advanced Spine & Wellness Center for their insight into car accidents and neck injuries.

3 reasons having a concise medical summary helps your case

“One of the most important things to do when filing an insurance claim,” says Steve Harrelson, a personal injury lawyer Little Rock, ARtrusts,” is to make sure that you are able to collect all medical records and billing to provide a total and complete snapshot of how the collision has affected your life.”

This means that it’s important to write down the name of each and every single medical provider who provided treatment to you after the accident.  It begins with the ambulance service and first responders and continues with every physician who may have examined you only once.  Your lawyer will have you execute a HIPAA-authorized medical authorization or medical release in order to request a full set of all medical records.  How important is having a complete medical summary to your case?  Here are 3 reasons to show you how important it is:

3 reasons to compile an organized medical summary:

  1. Valuation of your case: Like it or not, the amount of medical bills you have acquired will have a direct impact on the value of your case.  You should be expected to have an immediate answer to the question “how much are your medicals?” or “what is the total amount of your specials?” at the ready, because you will be asked near the very beginning of your claim by the insurance claims adjuster assigned to your case.
  1. Responses to discovery:As soon as your case is filed, you can expect the defense to immediately request information in regard to your medicals.  If you have a concise, complete set of medical records that are organized and bates stamped, along with a medical summary and billing summary all loaded onto a CD, it shows the defense how organized your case is and how prepared they better be in order to defend the proof that will be
  1. Presentation to the jury as exhibits: You have only one shot to present your case to a jury.  They will be forced to digest your entire case – the case you’ve been working on for months or years – in just a short period of time.  It’s important to be able to provide the records to the jury in a way that helps them understand your injuries and how this car crash has affected your life.

Conducting a full investigation like this is the only way to maximize your compensation.  As a personal injury lawyer might attest, compiling a full report to submit to the insurance adjuster (or potentially a jury) is the best way to be compensated for the injuries you sustained.  This does not even take into consideration the portion of your claim regarding lost wages.

For these reasons, it is always best to contact a lawyer to help you through a situation like this to (1) help you through the process while you’re recovering and (2) to maximize your benefits to ensure all of your injuries are appropriately compensated.

SHThanks to Steve Harrelson and our friends and co-contributors from Harrelson Law Firm, P.A. for their added insight into the compilation of medical records and bills after a car accident.

5 Bicycle Safety Accessories that are Worth the Money

Cyclists are often at risk during a ride, especially at night. The danger may come from vehicles, pedestrians, or even other cyclists. No matter when you ride, however, it is important for you to be protected and prepared. Consider investing in some of these safety accessories. Though they may require a bit of additional budgeting and planning, the price is worth it, considering the legal and medical expenses you will save by avoiding a serious accident and injury.

  1. Bicycle Tail Lights and Headlights

Keeping lights on a bicycle is one of the best ways to improve your visibility at night. In some states, it is the law for you to keep clear and unobstructed lights on your bike. These lights can take on many forms, though the most common include having a white light at the front of the bike and a red one at its back. This can increase your visibility in the daytime as well, as the lights are designed to reflect beams of illumination back at the projectors. Try not to skimp on this accessory, as a bright and durable light can be absolutely invaluable in the right situations.

  1. Identification Bracelets

Sometimes, accidents simply happen, regardless of preventive measures. In the worst case scenario, if you are rendered unconscious on the road, you need to make sure that you have all of your contact information available as quickly as possible. Identification bracelets are highly affordable, and can provide you with a fast way to get help on unfamiliar routes or if you are riding alone. They include vital information such as your full name, emergency contact numbers, and vital medical information, such as blood type and pharmaceutical allergies. The bracelets could save your life.

  1. Durable Helmets

Though it should go without saying that a reliable helmet is critical for cyclists, there are still many who do not believe that they need one when they go out on a ride. Studies show that a bicycle helmet is instrumental in avoiding serious injury, and wearing one may save your life. Before shopping for helmets, do your research and make sure that you purchase a durable and reliable helmet. Nice-looking helmets are always fun to have, but make sure that you consider style only after you research the safety rating and construction materials of the helmet itself.

  1. Mounted Cameras

These accessories are not designed to prevent accidents, but they can be crucial if you get into an altercation with the other party. They can protect you in the event of an accident by providing concrete video evidence of what occurred at the time of the accident. If you need to prove anything in court, having a mounted camera can be just what you need to resolve witness credibility disputes at trial. Both the police and your insurance company can work with the information recorded.

  1. Reflective Bands 

Wearing reflective ankle or wrist bands may be one of the best ways to further improve your visibility. They should be a regular part of your cycling gear, because the highly reflective materials are always in motion when you are riding at night. They can reflect vehicle headlights and stand out in the dark, creating a flashing effect as your feet pedal. Many velcro bands also help you keep loose clothing closer to your body, which can prevent injury by reducing the likelihood of clothing getting caught in bicycle parts.

All of these devices can help you avoid serious injury in an accident or even prevent an accident. However, if you are injured as a result of someone else’s negligence, contact a bike accident lawyer Coeur d’Alene ID trusts to determine what kind of compensation you may be entitled to.

BendellThanks to our friends and contributors from the Bendell Law Firm for their insight into bicycle safety.

How does the personal injury claim process work?

There are reputable liability insurers, and then there are the others. Our personal injury lawyers know which insurance companies require a lawsuit to get their attention. They’ll deny, delay and defend, so lawsuits may be the only way to get fair compensation for our clients. Other insurance companies take a more reasonable approach when they know that their policyholder was liable for an accident involving injuries. Sometimes we can reach a full and fair settlement with these insurance companies through a claim without ever having to walk up the courthouse stairs. Here’s a basic look at how the personal injury claims process works.
The letter of representation
Upon being retained, an attorney may forward a notice of representation to the insurer of the person responsible for the accident; most attorneys will do this by certified mail. An adjuster for the insurance company will respond and acknowledge an attorney’s representation of their client. The adjuster may also ask for copies of any medical bills, records or reports involved in the case.

Gathering the evidence
It is important that an attorney receives updates from their client on his or her current treatment and any new treating physicians or clinics. Usually, an attorney has already obtained medical authorizations from the client, so copies of medical bills, records, reports or the like may be obtained. When an attorney compiles these documents, they may photocopy and forward them to the adjuster.

The demand letter
After the client has been discharged from treatment, an attorney may obtain the final bills, records, reports and evidence of lost earnings resulting from the accident. This is when a complete and final assessment of the case can be made. Any issues of the client’s own comparative negligence are given due consideration in estimating the value of the case. A final medical report involving the nature and extent of the client’s injuries might be obtained from his or her treating physician. All final bills, records, reports and evidence of lost earnings are sent to the insurer with a demand for settlement at a specified sum of money.

Settlement discussions
Numerous discussions may be held between an attorney and the adjuster regarding the value of the case and settlement. DC personal injury lawyers are required to advise their client of any settlement offers from the insurer, and they will ordinarily recommend or not recommend settling at a certain amount. Regardless of legal recommendations, if a client wants to settle on an insurer’s offer, attorneys are required to settle the case.

Final settlement
If a settlement is reached, the insurance adjuster forwards a release of claims to be signed by the client and witnesses. The release discharges the insured person from any future claims, suits or demands related to the accident. Some insurers forward the settlement check with the release, while others wait for the signed and witnessed release to arrive before forwarding the settlement check. In accordance with a settlement statement that the client also signs, attorneys are paid pursuant to the retainer agreement with the client, costs advanced on the client’s behalf are reimbursed, any lien claimants are paid, and the client receives his or her net proceeds from settlement. As per the Internal Revenue Service, these proceeds are usually tax free since they’re treated as compensation for damages as opposed to income.

If the case doesn’t settle, the file may already be prepared for litigation. In this case, the lawsuit may need only be drafted, filed and served. This is when the actual litigation process begins.

c-c_origThanks to our friends and co-contributors from Cohen & Cohen, P.C. for their added insight into personal injury claims process.

Cannon Hadfield Stieben, LLC Awards Scholarship

A little while back, we announced that we would be awarding a scholarship for the 2016 school year. The applications are in, and we are thrilled to announce that Lexi Clark from Colorado State University is the first recipient of the Cannon Hadfield Stieben Scholarship. Click through to read more.


Lexi is a rising junior at CSU getting ready to apply to law schools when she graduates. She is a first generation high school graduate and successful college student. In addition, she works at least one job during the school year and multiple jobs in the summer to put herself through college. She has the drive and ambition to succeed as a lawyer, and we wish her the very best.

Congratulations Lexi!

3 Tips on Taking Depositions in a Motorcycle Accident Case

Depositions are a common practice in the adjudication of any personal injury auto accident claims, and it is very easy to damage your case based on statements in a recorded setting. A deposition is a testimony taken by a skilled New York court reporter, conducted by a legal representative in a civil tort lawsuit, that is aimed at revealing information that may not be available on an official accident report. In many ways, it is a hunting expedition where practically anything is in season. Here are few tips when facing a deposition.

1. Be Prepared for Detailed Questioning
Motorcycle riders are often considered second-class travelers on the roadways. When the legal issue is a personal injury resulting from a motorcycle accident, there are some unwritten assumptions about bikers that they are dangerous motorists and often act illegally. Be prepared for detailed and intrusive questions from a defending attorney if you are biker who has been injured in an accident, even in light of seemingly obvious negligence by the responding party. Maintaining composure can be difficult, but it should be your basic frame of mind. Remember, you may be getting some trick questions.

2. Do Not Answer What is Not Asked
Always answer questions directly and succinctly. Do not offer additional information. Remember that the questioning attorney is looking for additional information beyond the scope of the official accident report, and there may be questions pertaining to any statement given to police officers. The purpose of this line of questioning is to cast doubt on your claim of injury severeness or contribution to the accident. Comparative negligence is a component of all accident cases and the defending attorney will likely be focused on increasing your comparative negligence percentage. Actually, depending on the state of occurrence, any contribution to the cause of the accident might eliminate a claim in some states while others maintain the modified comparative negligence model of 50% contribution to the accident to invalidate a claim.

3. Avoid Admitting Fault in the Accident
Any amount of fault assigned to an injured plaintiff will probably impact the amount of financial damage recovery for which they are eligible. Even in obvious cases of respondent negligence, the answers given in a deposition may be used as bargaining leverage against your claim when a settlement is being negotiated. The higher your comparative negligence percentage, the lower your settlement eligibility. Except for the few states that use pure contributory negligence, all accident victims are assessed for fault in the accident and the awards are discounted based on the fault percentage of the injured plaintiffs. In no state can an accident victim be paid damages for accidents they cause completely, and in states that use pure comparative negligence, any amount over 50% can eliminate validity of a claim. Luckily, in most states, even those who are largely at fault for an accident will likely receive some level of compensation when appropriate insurance levels are maintained by the negligent parties. But fault is crucial in every element of a personal injury claim, regardless of the state of jurisdiction.

Remember that a deposition could very well be a precursor to an actual trial when a defending legal counsel thinks they can have the claim dismissed by a jury. Subsequently, an injured plaintiff may also take the case to trial when there is significant insurance coverage available and the respondent is potentially guilty of gross negligence that could result in punitive damages. Your case may rest on your deposition, so being prepared is essential. As a matter of fact, if you are claiming damages based on an uninsured or underinsured clause on your personal policy, the adversarial insurance company might be your own insurance provider. It is clear that the need for an experienced and aggressive personal injury attorney is extremely helpful in any injury claim stemming from a motorcycle accident, especially when stereotypes may be invoked by the defendant. As a rule of thumb, one should be well prepared when being deposed.

Thanks to our friends and co-contributors from Veritext Legal Solutions for their added insight into important deposition tips.

CannonLaw, LLC is closing, but . . .

don’t worry, it’s rising again as Cannon Hadfield Stieben, LLC on Monday May 2. Yep, I’m officially done with solo practice and moving on to bigger, hopefully better, adventures. It’s been a great experience, but I think the future is brighter with a partner. It’s going to be nice to have another lawyer in the office to bounce ideas off, it should allow us to provide even better legal services, and its going to be a whole lot easier to leave the office for vacation now there’s someone to cover for me.

So who is this Mr. Hadfield? Well, the short answer is that he’s Gordon Hadfield. I have updated the Team section of the website if you want to check out his full bio and headshot. For the idle, I’ve copied the short form Bio below.

It’s going to be a little strange not running my own solo show any more, but I’m excited to be working with Gordon full time. We’ve co-counseled a couple of cases together, and we work well together. Most importantly, he is an excellent attorney who does fantastic work for his clients.

Gordon Hadfield
Gordon Hadfield is a trial lawyer whose practice focuses on civil litigation. Gordon has litigated cases in numerous venues, including Colorado State Courts and federal district courts in Colorado, Illinois, and Florida. He has taken or defended almost 100 depositions, and he has tried cases to both juries and the court.

Gordon also has extensive appellate experience. He has argued before the U.S. Court of Appeals for the Federal Circuit in Washington, D.C., and the Colorado Court of Appeals. He has also assisted clients in arbitration, mediation, and administrative hearings. Prior to practicing in Fort Collins, Gordon worked for a large, AmLaw 100 firm in Denver, Colorado.