Alcohol Involved With Fiery Tesla Crash

Casey Speckman, the driver of a Tesla who was involved in a fatal crash last November, was reportedly operating the vehicle with a blood alcohol level over double the legal limit in the state of .08 percent. The Indianapolis Metropolitan Police Department recently released the official accident report, and it revealed that Speckman’s BAC was at 0.21 percent.
Speckman, 27, was accompanied by her passenger, Kevin McCarthy, 44. Speckman was pronounced dead on the scene. McCarthy had a BAC of 0.17 percent, and he was the owner of the vehicle. He was transported to Eskenazi Hospital in critical condition due to blunt force trauma of the head and extremities where he later passed away.

The incident occurred during the early hours of November 3 when the 2015 Model S collided with a tree and a parking garage located near 16th and Illinois streets. The debris trail spanned the length of a football field, and its scope was exacerbated due to the fact that lithium ion batteries were used in the vehicle as they are known to run very hot. According to firefighters from the Indianapolis Fire Department, the battery cells exploded, and this delayed their efforts in getting to the occupants of the vehicle.

The deaths of the two occupants of the Tesla were the result of blunt force trauma due to the crash. Both deaths were ruled accidental. Currently, it is unknown the speed at which the vehicle was traveling. However, due to the length of the debris field, it is estimated that they were traveling at a high rate of speed. Investigators continue to work to determine the speed at time of impact.

It required “copious amounts of water” in order to get the fire under control. Because of the battery cell ignitions, there were multiple fires which firefighters were faced with controlling upon arriving at the scene of the crash.

Indiana’s Civil Forfeiture Laws Being Challenged

We all make mistakes in life, and it’s how we learn from them that largely determines our character and future. Criminal defense attorney Jeff Cardella works with clients every day who have found themselves on the wrong side of the law. While it’s important they receive fair punishment, Cardella feels that civil forfeiture is taking things too far.

Recently his client, Leroy Wilson, was charged with resisting arrest, dealing marijuana, and obstruction of justice. In addition to jail time and other penalties, law enforcement seized his vehicle. There is a law protecting this action, and Cardella and his client are challenging it with the argument that it’s a violation of the constitutional right to due process when this occurs.

The complaint states that the law currently “allows the executive branch to seize and hold the vehicle of an owner for several months without affording the owner the right to a postseizure preforfeiture hearing to challenge the seizure.”

The motivation for the lawsuit is not a monetary one. The defendant in this case simply wants his vehicle back, and Cardella truly feels the current laws are wrong and violate the rights of his client and so many others across the country. While the suit is currently limited to the Indianapolis Metropolitan Police Department, which seized around $48,022 in personal property in 2014 alone, the outcome could set a precedent for the rest of the country.

Across the country, there are nearly 400 statutes regulating federal forfeiture, and every state in the nation allows for forfeiture to take place. While there are arguments being made to defend civil forfeiture, Cardella and his client hope to at least make changes to the time allowed to hold seized property.

In Indiana, a vehicle can legally be held for up to six months by the executive branch. However, this time can be further extended when a forfeiture claim against said vehicle is filed within 180 days. While proponents of current laws argue that it’s only “drug dealers and the like” who are impacted, Cardella feels nobody deserves to be subjected to such treatment.

Preliminary Injunction Against Overtime Rules to Protect Employers

An Indianapolis federal judge has rejected the proposal of an extension to the mandatory overtime pay rule. This decision will impact the entire country as it will delay the implementation of the rule across the nation.

Twenty-one states took part in a lawsuit that was geared toward changing the fact that employers have been able to neglect paying overtime compensation to those making $23,660 or less. By classifying them as exempt, employers are able to get more than 40 hours of work out of salaried employees without having to compensate them for their added time.

There are many things that led to the deterioration of the traditional 40 hour work week, and a growing number are being asked to put in more hours. While this can be an incentive for hourly employees, salaried employees make the same amount of money regardless of how much effort they put into the job. The new rules are pushing to require employees to pay overtime to salaried employees making less than $47,500.

Included in the states that are pushing to pass the new rule are Alabama, Arizona, Arkansas, Georgia, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Michigan, Mississippi, Nebraska, Nevada, New Mexico, Ohio, Oklahoma, South Carolina, Texas, Utah and Wisconsin.

Just one of the reasons implementation of the rule has been delayed is to protect employers and give them more time to prepare for the added expenses in pay for employees. However, it’s also expected that receiving compensation for overtime work will boost the morale of employees, and this can easily provide enough of an impact that will make the new expense one that can be viewed as a beneficial investment worthwhile for the company to make.

The new rule was supposed to take effect on December 1. The recent preliminary injunction impacts millions of workers across the country with around a quarter of a million in Indiana alone. In response to this action, Arkansas Attorney General Leslie Rutledge reports that she feels the judge’s decision is one that will help determine the full legality of the rule.

Indiana’s Changes to Overtime Rules Not Likely to Pass

New federal rules scheduled to go into effect on December 1 are being challenged by a number of states this week. Among the 20 includes Indiana, and, despite their passionate efforts, experts predict their challenge to the changes won’t hold up in court.

The change in rules will be warmly welcomed by part-time employees who occasionally work more than 40 hours per week as they would now be eligible for overtime pay. Once the rule goes into effect, anyone making less than $47,476 dollars a year will be paid time-and-a-half for working more than 40 hours a week.

Professor of labor and employment law at Indiana University Kenneth Dau-Schmidt recognizes that the concept has already been in effect in the interpretation of law for many years. He said, “It’s been tested before. The Supreme Court has already told us that the federal government does have the authority to impose the fair labor standards act against the states.”

While Dau-Schmidt feels that it’s likely the upcoming challenge of the official ruling to be introduced will turn out to be futile. However, he does have some advice on how protestors of the rule can increase their chances of coming to a mutual agreement by arguing against the pre-determined inflation adjustments instead. In regards to the dissent on this issue, he said, “I think it makes sense that some state attorneys are going to want to challenge this.” I don’t give the challenge much chance in court though.”

It’s expected that the rule will hold. If and when it does, this will have a direct impact on the lives of 87,000 workers in the state. We shouldn’t have too much longer to wait for the final answer as Dau-Schmidt predicts it won’t take the court long to come to a final decision on the matter.

Efforts Made to Draft Helmet Laws in Indiana

Indiana state lawmakers have partnered with a mother whose daughter died in an all-terrain vehicle crash while not wearing a helmet. It’s her goal to have a helmet law along with mandatory safety education drafted before children can be allowed to ride ATVs.

Capt. Bill Browne supports Play for Kate, and he acknowledges that the lack of proper safety precautions accounts for a large number of accidents involving ATVs. The efforts are making headway, and Rep. Ron Bacon has already begun the process of drafting a bill that would establish rules to make the enjoyment of ATVs safer for kids.

According to the preliminary draft, children under the age of 16 or 18 would be required to wear protective headgear. Browne argues that, just as those preparing for the operation of a motorcycle, anyone seeking to use a large ATV needs to display that they understand the potential dangers involved as well as the proper safety precautions to employ to minimize dangers. He has included the requirement for education for riders and families as part of his draft.

Opponents to the movement argue that helmets limit peripheral vision, and this in itself is a more eminent danger. Patty Reyling also lost her son in an ATV accident, and she blames helmets. She said, “My own son will argue that (a helmet) cuts out your peripheral vision.”

Reyling is also an activist, and she operates a website, Know Your Limits, Learn to Ride to Live. While she argues this potential new legislation, she does believe there could be a middle ground that should be reviewed. She believes there needs to be a change in the design of helmets for ATV drivers and riders.

State officials report that 16 fatalities were directly related to ATV accidents last year, and there have already been six statewide as of June 9, 2016.

Laminate Wood Danger More Serious Than Many Think

Cancer is something most of us take measures to prevent. You wear sunscreen, avoid cigarettes and alcohol, and receive regular checkups. However, there’s a hidden danger lurking in homes across the country that could cause you to develop cancer no matter what efforts you otherwise make. It’s been shown that some laminate floors contain formaldehyde, and this can cause a series of adverse health effects.

Previous reports have suggested the presence of formaldehyde, but a new one released last Tuesday by the National Center for Environmental Health at the U.S. Centers for Disease Control and Prevention and the Agency for Toxic Substances and Disease Registry elaborates on the increased risk for lifetime cancer as a result of exposure. Fortunately, there is a point of origin identified. Laminate wood flooring sold at Lumber Liquidators manufactured in China is to blame. Although they have ceased sales on the product, many already have it installed in their homes.

What Went Wrong in the Original Report

There was an error in calculations when it comes to the original report. Per 100,000, it was previously estimated that there were two to nine additional cases of lifetime cancer due to the formaldehyde found in this particular flooring choice. However, it’s been proven this number is closer to between six and 30 additional cases.

Due to this recent exposure, Lumber Liquidators has watched their stocks sink. After all, the new report increased the risk of the development of cancer from the product by three times the previous number. The reason the error developed is because of the miscalculation of airborne formaldehyde concentration estimates due to incorrect ceiling heights used in the study. However, it didn’t take long for those involved in the study to recognize and correct the error. The original report was made public on February 10, but it was removed nine days later and replaced with the new and corrected numbers.

Where it All Started

The story originated on the show “60 Minutes” with host Anderson Cooper. They reported that the level of formaldehyde found in specific laminate flooring was in excess of California Air Resources Board standards. Those involved with the story did their own testing using Lumber Liquidators’s products in a total of five states. Those included Virginia, Texas, New York, Florida, and Illinois.

Given the media hype, the Consumer Product Safety Commission decided to do some investigating of their own, and they found that samples of the wood they tested had shown to cause a number of adverse side effects including:

  • Eyes, nose, and throat irritation
  • Increased symptoms in those with asthma
  • Increase of symptoms in those with chronic obstructive pulmonary disorder

While Lumber Liquidators originally stated back in March 2015 that they planned to continue sales of the product, they recanted that statement as of last Tuesday when they reported they haven’t sold the product since May 2015. The latest findings have been reviewed by the Consumer Product Safety Commission, the Department of Housing and Urban Development, and the Environmental Protection Agency.

Past Claims Currently Being Settled

Shortly after this report was made public, the California Air Resources Board took action and established that Lumber Liquidators, “failed to take reasonable prudent precautions to ensure those products met such limits designed to protect public health.” Because of this, a settlement was announced in the amount of $2.5 million. These funds were deposited into the California Air Pollution Control Fund. They plan to use the money to advance research on air quality to prevent problems like this from occurring in the future.

In addition, Lumber Liquidators has also agreed to take steps to move the industry in the right direction. They are working on setting new standards to better ensure a thorough testing process on the products they put on their shelves. While the laminate flooring boasted on its label that the product met company standards, it was revealed it did exceed the acceptable level of formaldehyde. A representative of the Air Resources Board Enforcement said that this situation has increased awareness on the enforcement of the airborne toxic control measure to protect the public from exposure to serious toxins.

What to Do If You Have the Defective Product

If you know or suspect that you have the product in question installed in your home or office, it’s important that you follow a few tips to ensure the safety of you and your loved ones. Just some of the measures you can take include:

  • Opening windows to ensure a steady flow of fresh air
  • Utilizing exhaust fans
  • Avoiding smoking in the home

Furthermore, if you notice anyone in the household experiencing difficulty breathing or similar symptoms, you should immediately consult with your doctor and seek professional help to install new flooring.

Push for Sexual Orientation Protection by Indiana Chamber of Commerce

On Thursday, the Board of Directors of the Indiana Chamber of Commerce reported that they will be pushing for increased support for the LGBT community. Represented by over 100 professionals all over Indiana, a recent vote indicated that the vast majority are on the same page that civil rights laws in the state need to be expanded in order to protect sexual orientation.

Kevin Brinegar, the Chamber’s CEO and President, acknowledged that the image of the state was one of intolerance as a result of the Religious Freedom Restoration Act, and the push for increased civil rights is necessary in order to correct that perception. Indiana is a welcoming state, and anyone should be encouraged to visit or consider moving here without fear of reprimand based on sexual orientation or identification with a certain gender.

In the United States, around four percent of the population identifies as being gay, lesbian, bisexual or transgender according to a report made by the Williams Institute. However, out of a total adult population in Indiana of 6,483,802, only 182,997 identify themselves as being a part of the LGBT community. It’s impossible to say whether a push for increased civil rights would cause this number to raise. However, it is certainly a possibility that many are afraid to publically identify due to a lack of acceptance.

Brinegar is optimistic of the potential changes, and he feels that encouraging acceptance will make Indiana a more welcoming place to do business, thus increasing the economic stability of the state. Governor Mike Pence said he is discussing ways in which these changes can be implemented without causing upset in the religious community.

The “Dos” and “Don’ts” of Closing Arguments

What are some common “Dos” and “Don’ts” when it comes to closing argument? Here is a list I put together:

            Do:

  1. Speak loud and clearly.
  2. Be confident.
  3. Vary your tone and location as you move from point to point.
  4. Be organized.
  5. Begin and end on a high note so your points will be remembered.
  6. Help the Jury with the instructions and form of verdicts.
  7. Keep track of your time.
  8. Try out your arguments on non-lawyers to insure your arguments are persuasive and understandable.
  9. Begin working on your closing argument on day one.  It will inform your discovery, preparation and instructions allowing you to develop a cohesive theme from day one.
  10. Be yourself.
  11. Be sincere and honest and the jury will trust you as a guide.
  12. Deal with your problems head-on before your opponent has a chance to address them.
  13. Use your exhibits and excerpts of key testimony from the witnesses.
  14. Use PowerPoint, blowups of testimony, or charts to assist the jury.
  15. Use analogies, quotes and vivid descriptions to keep them interested.
  16. Save your best “zingers” and analogies for rebuttal if you know the defense will have to address the matter in their argument.
  17. Judiciously use repetition as tool for emphasizing significant points.
  18. Have a clear call to action at the very end of your closing.

                       

            Don’ts:

  1. Don’t state your own personal opinion about the justness of your cause.
  2. Don’t misstate the evidence or law.
  3. Don’t mention evidence outside of the record.
  4. Don’t berate or personally attack the other lawyer to the Court.
  5. Don’t tell the jury to ignore the law.
  6. Don’t make a “Golden Rule” appeal to the jury and ask them to decide the case like they would want to be treated if they were in your client’s position.
  7. Don’t exceed the time allotted by the Court.
  8. Don’t personally vouch for a witness or your client.
  9. Don’t appeal to bias or prejudice.
  10. Don’t complain about the Court’s rulings or its treatment of you and your client.
  11. Don’t attempt to shift the burden of proof to the other side when you have the burden of persuasion on a legal claim or defense.
  12. Don’t implicate a defendant’s right to remain silent in a criminal case.
  13. Don’t insinuate that it is a lawyer made case without first obtaining approval of the Court.
  14. Don’t violate any orders granting motions in limine. (Can you say mistrial?)
  15. Don’t bore the jury or beat a dead horse.
  16. Don’t ask the jury to send a message with their verdict unless you have a punitive damage claim.  The purpose of the verdict in the typical tort case is to fairly compensate, not send a message.
  17. Don’t wear any distracting clothing or jewelry.

A Recipe for an Effective Closing Argument

20120115-144530.jpgBelow is a summary of some thoughts dealing with closing arguments which I would like to share.  Like a good meal, a closing argument is something which requires careful preparation and a judicious mix of ingredients in the appropriate quantities.   Below is my recipe for an effective closing argument.

Goals

            While it may seem intuitively obvious, the central goal of any closing argument is to prevail on behalf of your client. Any other objective is secondary. This is your last opportunity to speak with the jury and you don’t want to waste it. Below are some thoughts concerning how to best compile the central goal on behalf of your client.

Strong Opening Grab their Attention

As far as I am concerned, you want to begin strong and end strong. You are the director, producer and central author of the closing argument. Syd Field is the author of a number of books on screenwriting. His principles have equal application to the formulation of closing argument. In his book, Screenplay: Foundations of Screenwriting he talks about how important the first 10 minutes (approximately 10 pages) of your script are.  Screeners of scripts will typically look at the first 10 pages of the screenplay and if they don’t like it, they quit reading and toss the script to the trash pile.

Jurors are not much different. If you haven’t caught their attention in the first few minutes of closing argument, they are probably going to start daydreaming about what they will do once they’re out of the trial. Instead of spending a bunch of time at the beginning of closing thanking jurors or their service, I would recommend grabbing their attention with a snappy introduction while you have their undivided attention.

Themes

Themes act as a unifying thread of your case. It is a thing that motivates the jurors to take action. There are number of potential themes.  Watch movies and see how things are developed and the best ones. In fact, I have a book that contains nothing but quotes from various movies which I tried to interject in my closings to make them more interesting and compelling. Below is an example of a closing argument that I gave which dealt with the themes “profits over safety” and “accepting responsibility”.  This is the same case discussed earlier in my materials on direct and cross examination.  Here is the introduction:

This is an important case.  It’s important for a lot of reasons – most importantly, as I said at the beginning of this trial, it’s a case about accepting responsibility and in this case Mr. King did not accept responsibility.  Mr. King ignored facts.  Mr. King ignored laws.  Mr. King was concerned about one thing and one thing only and that was himself.  One of the things that I discussed with you at the very start of voir dire was this idea that we do not allow profits to take priority over safety.  There are a lot of good reasons why we have our safety laws, but as I discussed you have to have laws and you have to make people accept responsibility for the harms and the losses that they have caused, because if you fail to do that there’s absolutely no incentive for someone to be responsible.  Below is a short list of some common themes:

Safety –  We do not allow profits to take priority over safety.

Keeping Promises – A man’s word is bond.

Preciousness of Life – As Will Munny put it in the western Unforgiven, “It’s a hell of a thing, killing a man. Take away all he’s got and all he’s ever gonna have.”  That is what happened here.

David & Goliath [Right v. Might]  –  Everyone loves to see the little guy prevail over the big bully whether it be the government or a large corporation.

Theft of Innocence – When a child is injured or emotional traumatized by an event or act, their life is never the same and the joy of childhood is ripped away.

 Right vs. Wrong –  You may be able to paint the case in simple terms which we are all taught as children; you do what is right because that is your duty.

Failure to Accept Reality –  Don’t Confuse me with the facts, my mind is made up.

Greed/Selfishness –  Such things often lead people to take short cuts and ignore their responsibilities to others.

Struggling to Overcome Impossible Odds –  Everyone cheers for a person who bravely soldiers on against difficult circumstances.  Perhaps your client was seriously injured and has struggled to regain some semblance of his life.  His efforts are heroic and worthy of the jury’s admiration.

Themes in cases are virtually endless and only confined by your imagination.  All great literature, including the bible, strike various themes that describe why we and what we should do.  Tap into these themes and use them to unify your argument.

Keeping Your Promises

As you move through your closing, it is important to link back to the themes and promises you made in your opening statement to show that you have fulfilled the obligations assumed in your opening statement. That is one of the reasons why you don’t want to promise anything in your opening statement that you can’t deliver on during the course of the trial.

Likewise, if your opponent has made promises and failed to fulfill them, you want to be able to point this out to the jury.  That’s why you always want to keep good notes of your opponent’s opening and in some instances you may even want the court reporter to partially transcribe the opening to drive the point home so that it can be quoted verbatim from the official transcript of the court.

Provide a Clear Request for Action

At the end of your closing argument, you want to clearly request the jury to take particular action on behalf of your client. This request for action can be addressed as you move through your closing. However, I always have a strong ending in my closing requesting action on the part of the jury.  Closing argument is similar to a pregame speech provided by a coach to his/her players. You want to motivate the jurors to take the action desired on behalf of the client.

If you can’t clearly request action on behalf of your client, how is the jury supposed to do so?  Here, is an example of such a call to action:

Our client would rather have his life back than a $1,200,000 verdict.  I suggest to you this is a seven-figure case.  I’ll leave it to your discretion to go through and look at these damages and analyze the jury instructions.  This case has been a heavy burden on our client.  It’s been a heavy burden on the attorneys to work it up, as you’ve probably seen these last four days.  But today we sit down and the job becomes yours.  And we appreciate your time and your attention to the case and know that you’ll do justice for him.

How Can I Help You?

I remember seeing Kent Rowe Sr. of South Bend, Indiana give a fairly dramatic introduction to defense closing argument in a serious personal injury case.  He looked at the jury and  asked:  “How can I help you?”  He stood there a moment, paused, and once he had the eyes of all of the jurors he moved forward and did just that… helped the jurors.  He answered questions about how they go about their job in looking through the evidence and applying the facts to the Court’s instructions.  He showed them how to handle the form of verdicts.  He posed and answered questions that were likely on the jury’s mind concerning the issues in the case.  By opening in such a fashion he crawled into the jury box and truly helped them to fulfill their duty to the justice system.

That is what we are called to do every time we deliver a closing argument… Help the Jury   reach the outcome we desire for our client.

Looking Good and the Art of Cross-Examination

Cross-examination is the greatest legal engine ever invented for the discovery of truth. You can do anything with a bayonet except sit on it. A lawyer can do anything with cross-examination if he is skillful enough not to impale his own cause upon it. – John Henry Wigmore

There are a number strategies out there regarding cross-examination. One of the more advanced theories of cross-examination consists of the simple objective of “looking good.” This theory of cross-examination is touted by Terry MacCarthy in his book MacCarthy on Cross-Examination, American Bar Association, 2007. His book outlines a simple process which allows the cross-examiner to look good while exercising maximum control over the witness through the use of short declarative one fact statements which require the witness to answer “yes”, “no”, or “I don’t recall/know”. The essential strategy, begins by defining the area of questioning in the following way:

Q. I am going to ask you some questions about [the topic in question]. Understand?

Once the precise area of questioning has been defined, the questioning begins. Below is a short example of this form of questioning:

Q. I am going to ask you some questions about the car that drove past you that night. Understand?

A. Yes.

Q. It was a Ford?

A. Yes.

Q. Red color?

A. Yes.

Q. Two-doors?

A. Yes.

Q. Male driver?

A. Yes.

Terry MacCarthy demonstrates how this simple format confines the witness and allows you to control the course of examination. In addition, the use of the short one fact questions allows you to be the storyteller and prevents the witness from taking control of the examination. Even if you are not scoring any particular key points, this format of questioning will allow you to look good as an advocate and speak directly to the jury. He suggest that you deliver the questions to the jury and look to the members of the jury panel instead of focusing your attention on the witness. This allows you to build report and credibility with the jury the process of questioning the witness. Throughout the course of his book, MacCarthy covers various nuances of the basic system. However, the anatomy of the examination always follows the format outlined above. in this book, MacCarthy emphasizes the need to frequently define each new area of questioning through the basic setup question: I am going to ask you some questions about [the topic in question]. Understand? If the witness fails to cooperate answer the question, they will look bad. The attorney on cross examination, can simply come back to the short leading question and ask for example:

Q. Mr. Smith, I am asking you questions about the car that drove past you that night. Understand?

A. Yes.

Q. The car was red?

If the witness quarrels with the examiner, the witness looks bad while the questioner continues to look good because there is no excuse for failing to give a straight answer to such a short and direct question. Terry MacCarthy’s method of cross-examination is covered in a series of YouTube videos. The link to the videos is listed below:

Part 1: https://www.youtube.com/watch?v=QcOkG9-TpEo&index=15&list=FLpWQuA5b8JFENHxyeOk2mZg

Part 2: https://www.youtube.com/watch?v=f1kTgKZuQjY&index=14&list=FLpWQuA5b8JFENHxyeOk2mZg

Part 3: https://www.youtube.com/watch?v=XzzvvtJEtDo&index=13&list=FLpWQuA5b8JFENHxyeOk2mZg

Part 4: https://www.youtube.com/watch?v=BcTTakWYlbs&index=12&list=FLpWQuA5b8JFENHxyeOk2mZg

Part 5: https://www.youtube.com/watch?v=V3geSkXvS7g&index=11&list=FLpWQuA5b8JFENHxyeOk2mZg

Part 6: https://www.youtube.com/watch?v=LTWr03VIS2E&index=10&list=FLpWQuA5b8JFENHxyeOk2mZg

Part 7: https://www.youtube.com/watch?v=yuCF078wooo&index=9&list=FLpWQuA5b8JFENHxyeOk2mZg

The lectures by Mr. MacCarthy took place at Case Western University School of Law over the course of a week. As a federal public defender Mr. MacCarthy knows how important it is to look good since oftentimes as a criminal defense attorney you have little to work with in defending your client. If you are interested in purchasing the book, then click the title above and you will be redirected to Amazon where you can purchase the book for approximately $80. I trust you will find this method of cross examination both easy to employ and effective to use with all sorts of witnesses.