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Managing Divergent Opinions in the Life Care Plan
Betsy Keesler, BSN, RN, CLCP
InQuis Global

Life care plans are often used in the forensic setting for personal injury cases. They serve as both a plan for future care and cost estimate for such needs. The subject of a life care plan is referred to as an evaluee. The life care plan is an educational tool for the evaluee and the trier of fact, written in understandable language that can be readily duplicated and realistically implemented.

The most widely accepted definition of a life care plan is as follows:

“The life care plan is a dynamic document based upon published standards of practice, comprehensive assessment, data analysis, and research, which provides an organized, concise plan for current and future needs with associated costs for individuals who have experienced catastrophic injury or have chronic health care needs.” (International Conference on Life Care Planning and the International Academy of Life Care Planners. Adopted 1998, April.)

The recommended services and items in a life care plan must have a solid medical and health care foundation. The life care plan outlines provisions to meet the biopsychosocial needs of the evaluee. The life care plan requires the input and expertise of multiple disciplines coming together to create one comprehensive plan tailored to the evaluee’s individualized needs. As such, the foundation of the life care plan is described as transdisciplinary in nature.

In the forensic arena, there may be conflicting treatment opinions expressed throughout the course of life care plan development, as well as after the plan’s formal release. The life care planning Consensus and Majority Statements (2018) inform the life care planner of an obligation to “methodically handle divergent opinions.” (Consensus Statement #65). The Consensus Statements are derived from 17 years of past life care planning summits, with input from life care planning experts. They are a key part of life care planning methodology. Therefore, they provide reliable and trustworthy guidance on ways to compare recommendations.

In addition, life care planning Consensus Statement #84 states the following:

“Review of evidence-based research, review of clinical practice guidelines, medical records, medical and multidisciplinary consultation and evaluation/assessment of evaluee/family are recognized as best practice sources that provide foundation for life care plans.”

On closer inspection, there are typically five sources of information to support expert medical opinion:

• The evaluee’s medical record
• Evaluation/assessment of the evaluee/family
• Consultation with treating and/or evaluating health care providers
• Professional clinical practice guidelines
• Evidence-based peer reviewed literature

A thorough review of medical records is one starting point for gathering relevant health care data. Medical records represent the factual past history of treatments already received and, sometimes, the projected future health care needs as recommended by the treating provider(s). The medical records unveil which treatments were tolerated by the evaluee and led to favorable outcomes. Likewise, they also reveal which ones were considered or tried, but were not feasible to conduct. Also, medical records serve as a cross reference to life care planning recommendations.

When permitted, the life care planner should conduct a formal evaluation and assessment of the evaluee. Likewise, a forensic medical expert, who may be relied upon to provide medical foundation, may also perform an in-person or telehealth medical evaluation as the basis for recommendations. The life care planner will likely need to speak with the evaluee’s treating and/or evaluating health care providers. With the analysis of medical records, the life care planner’s assessment of the evaluee, review of clinical practice guidelines, research and consultation with the treating and/or evaluating health care provider(s), there should be adequate medical foundation and individualized data established to begin formulating a life care plan.

However, sometimes the forensic medical expert will rely solely upon medical treatment and diagnostic records, sans personal evaluation, to formulate an expert opinion regarding the future health care needs for the evaluee. As such, the medical expert opinion(s) issued may not agree with the current treatment plan in place, setting up a scenario for divergent medical opinions.

Finally, the review and analysis of clinical guidelines and peer-reviewed literature is essential. Clinical practice guidelines are the gold standard outlining best practice. These statements, usually developed by medical organizations and academies, are intended to provide sound rationale to guide effective clinical treatments for individuals. In essence, clinical practice guidelines define the how to and the why in health care practice. Also, peer-reviewed literature is important to the life care plan. It represents expert scholarly research, work or ideas that have been critically scrutinized by other experts of the same field prior to acceptance for publication. Such a peer-reviewed process ensures the scientific quality and validity of the research.

Regardless of whether the life care planner is creating or reviewing a plan, it is incumbent upon the individual to indicate where divergent medical opinions lie and how he/she plans to deal with the range of findings. Specific areas to consider when evaluating medical opinions include:

• Is the rendering expert consultant and/or treater acting within his/her scope of practice?
• Do the medical records give any indication of what treatments provided were beneficial and which ones were not suitable for the evaluee?
• Do the medical records indicate what the treating provider was planning for the future?
• Do the medical records give any indications the evaluee has reached maximum medical improvement and whether future care consists of conservative medical management moving forward or not?
• Are the future care recommendations individualized for the evaluee?
• Are the recommendations reasonable and attainable?
• Can the evaluee actually implement the recommendations from where he/she lives?
• Has the evaluee made any statements as to whether or not he/she intends to pursue the recommendations?
• Do the clinical guidelines and standards of practice support the same recommendations given by the medical and/or health care professionals?
• What medical information/opinions are discovered in deposition testimony?
• Within deposition testimony, have any parties contradicted themselves or changed their opinions regarding future care needs?

Consensus statement #75 asserts, “Life Care planning products and processes shall be transparent and consistent.” The life care planner, as an educator for the evaluee and the jury, should acknowledge when divergent opinions and contradictions exist. Such differing recommendations/opinions may dictate the need to provide more than one plan option in order to develop a reasonable, relevant, and appropriate life care plan individualized to the evaluee. If one recommendation is chosen over another, the life care planner should be prepared to explain the rationale for making such a decision. Moreover, the rational should follow accepted methodology, standards and consensus while being fully transparent and unbiased.

In closing, it is the life care planner’s responsibility to present a life care plan containing feasible treatment and care options, in a transparent and understandable way, using the proper application of peer-reviewed methodology, standards and consensus. In the forensic arena, the life care planning process should aid the trier of fact in making informed and appropriate decisions.

Resources

Cary, John, et al., 2023. “A Walk Through from Referral to Testimony: Methodology & Admissibility.” Journal of Life Care Planning, 21 (1), 69-84.

Deutsch, Paul M., “Tenants of Life Care Planning.” Paul M. Deutsch & Associates, P.A. www.paulmdeutsch.com/LCP-tenets-of-life-care-planning.htm

International Association of Rehabilitation Professionals & International Academy of Life Care Planners, 05/07/2019, “Transdisciplinary Position Statement.”

International Association of Rehabilitation Professionals & International Academy of Life Care Planners, April 2022, “Code of Ethics.”

Johnson, C; Pomeranz, J. & Stetten, N. 2018. “Consensus and Majority Statements Derived from Life Care Planning Summits Held in 2000, 2002, 2004, 2006, 2008, 2010, 2012, 2015 and 2017 and updated via Delphi Study in 2018.” Journal of Life Care Planning, 16 (4), 15-18.

Standards of Practice for Life Care Planners, Fourth Edition. 2022. International Association of Rehabilitation Professionals & International Academy of Life Care Planners.

Weed R. O., Berens D.E., (editors). 2018. Life Care Planning and Case Management Handbook. (4th ed.). New York, NY: Routledge.

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Betsy Keesler earned a Diploma in Nursing from Presbyterian Hospital School of Nursing in 1987 where she was awarded Clinical Excellence in Pediatric Nursing upon graduation. Ms. Keesler subsequently completed a Bachelor of Science in Nursing during 1990 with receipt of High Distinction through George Mason University. In 2021, she completed 120-hours of post graduate training for life care planning through the Institute for Rehabilitation Education and Training (IRET). Ms. Keesler is a registered nurse (RN) and a certified life care planner (CLCP). She has worked in the hospital setting as a registered nurse (RN) for Pediatric and Neonatal Intensive Care Units and within the outpatient medical setting as a community health nurse. As a community health nurse, she coordinated and provided care for a large and diverse patient population within the school system. Also, Ms. Keesler was a nursing manager for the Adult Evaluation and Review Service within the Maryland Department of Health. Her clinical work through the public health department involved the coordination of medical and nursing services to support ongoing safe community living for persons with catastrophic diagnoses and chronic health conditions. Ms. Keesler has held numerous leadership positions throughout her nursing career and was the recipient of the Maryland Nurse of the Year award during 2009. She currently works full-time as a life care planner with Inquis Global, LLC.

The Complications Associated with Third-Party Litigation Funding Indicate a Need for Legislative Action as Funding Continues to Unabatedly Increase

Adam Peoples, Hall Booth & Smith, P.C. and Connor Wiseman, Summer Associate

Third-party litigation funding is “an arrangement in which a funder that is not a party to a lawsuit agrees to provide nonrecourse funding to a litigant or law firm in exchange for an interest in the potential recovery in a lawsuit.”¹  This method of funding has increased immensely in recent years and demand amongst litigators for such funding continues to grow. According to Westfleet Advisors (an advisor to lawyers and clients who are exploring litigation financing), new capital commitments from the litigation finance industry to law firms increased by 16% in 2022, which was the largest year-to-year growth rate Westfleet Advisors had ever reported since they began tracking in 2019.²   This growth is the result of 44 currently active funders with $13.5 billion in assets under management, with $3.2 billion in commitments to new deals coming in the last year.³ The commitments from funders are distributed to single matters as well as in a portfolio form where the litigation funder finances multiple cases belonging to a lawyer or law firm and receives a return on the invested capital either through individual settlements or through a group of cases.⁴  While litigation funding initially was allocated primarily in single-matter deals, portfolio funding has become more common since 2019 and currently represents 68% of new capital commitments, with each new deal averaging about $10.5 million (up from $8.5 million in 2021).⁵  Given the prevalence and depth of litigation funding, particularly in portfolio transactions, there are obvious concerns as to the integrity of litigation backed by third-party funders and the consequences of this rapidly popularizing funding model. These concerns include an overemphasis on profitability, ethical considerations and conflicts of interests, an impact on settlement dynamics, limited transparency and disclosure, insufficient regulation and monitoring, and a potential impact on access to justice.

Portfolio funding makes litigation less risky for both funders and litigators given that funds can be spread across multiple cases. This decreased risk has the potential to encourage frivolous lawsuits driven by financial gain rather than merit. Not only would this needlessly overburden the court system in general, but defendants would also face an altered set of options. In essence, with the backing of litigation funding firms, plaintiffs would be enabled to pursue even highly dubious claims at trial. In this environment, defendants would be pressured to settle all but those most frivolous suits at amounts higher than the merits would traditionally justify.⁶ This disrupts established customs and expectations by driving up costs through inefficiencies and puts defendants in a comprised position regardless of guilt or innocence.⁷  Ultimately, in the case of insurance, premiums will rise to compensate for increased litigation costs, thereby negatively impacting unaffiliated consumers. While a counterargument to this assertion is that investors would be unlikely to invest in a frivolous lawsuit when recovery is contingent on success, the National Association of Mutual Insurance Companies argues that focusing solely on the probability of success “overlooks the fact that funding companies can negotiate for a larger share of any proceeds that result from a less-meritorious lawsuit, in the same way that investors are able to demand higher yields from the issuers of so-called junk bonds.” ⁸  It remains a worthwhile venture for funding companies to invest cases with low probabilities of success if there is a large enough damages figure due to the fact that, through the portfolio approach, the funding company is able to spread risk across lawsuits and therefore avoid instances of overexposure.⁹ Therefore, there is little reason to expect third-party litigation funding to decrease independently.

While the threat of increasing frivolous lawsuits is problematic, perhaps of chief concern is a compromised attorney-client relationship as a result of third-party funding. Litigation funders are positioned to exert an undue influence on litigation strategy and potentially prioritize financial gain over the client’s best interests. This is possible because funders, unlike attorneys, do not owe a fiduciary duty to plaintiffs.¹⁰  An example of this may occur when a funding agreement allows the funder to decide when to settle, even if the plaintiff would rather proceed to trial.¹¹  This dynamic could arise in any number of critical decisions relating to the direction of the lawsuit. Not only is the attorney-client relationship potentially compromised, but there is also the possibility of conflicts of interest and breaches of ethics. The money in portfolio funding by its definition is allocated to numerous different lawsuits. It follows that through the funding of multiple cases simultaneously, there could be conflicts of interest that involve conflicting parties or legal positions. This jeopardizes the integrity of the legal system and shifts the ultimate objective from justice to profit with no regard for congruence. Often, the court and defendant are unaware of a funding agreement, which prevents monitoring. Without transparency, there is little incentive for funders to behave ethically and there is relatively little chance of recourse. Further, the set of circumstances that results leads to the potential for portfolio funding to widen the gap between those who can afford access to justice and those who cannot, thereby perpetuating existing inequalities in the legal system. Portfolio funding may also lead funders and attorneys to prioritize cases with higher potential returns, potentially diverting resources away from cases with significant societal impact but lower financial prospects. Each of these issues is an indicator that additional regulatory attention needs to be given to third-party litigation funding.

Given the multitude of potential issues with portfolio litigation funding and its ever-growing presence in litigation, the judicial system would be well served to pursue enhanced legislation regulating litigation funding, especially pertaining to the portfolio model. Transparency is a critical component in achieving this goal. In working towards transparency, Senator Grassley and Representative Issa introduced The Litigation Funding Transparency Act of 2021, which would “requir[e] mandatory disclosure of funding agreement in federal class action lawsuits and in federal multidistrict litigation proceedings.”¹²  Additionally, in December 2022, a coalition of state attorney generals issued a written call to action to the Department of Justice and Attorney General Merrick Garland, though no definitive action has been taken on the issue.¹³  Alternatively, efforts have been made to add a mandatory TPLF disclosure provision to Fed. R. Civ. P. 26(a)(1)(A).¹⁴  The effort has been led by the United States Chamber Institute for Legal Reform which has cited the following as reasons for the addition of the provision: “(1) alleged “mounting evidence” of funder control over litigation and settlement decisions; (2) growing use of TPLF arrangements as part of “all types of civil litigation” and increased funding amounts; and (3) the need to standardize and simplify TPLF disclosure approaches as part of a single disclosure rule.”¹⁵  As of May 8, a letter with 35 signatories (including American Property Casualty Insurance Association, the Association of Defense Trial Attorneys, the DRI Center for Law and Public Policy, and the National Association of Mutual Insurance Companies) was sent to the Advisory Committee reemphasizing the need for the added provision to Rule 26.¹⁶  The Advisory Committee will take the proposal under consideration, however, this provision has been proposed over the course of the past nine years to no avail.¹⁷  Ultimately, litigation funding has the potential to not only negatively disrupt the judicial system but also have a negative effect on the general public especially in the insurance marketplace where increased premiums could lessen affordability and accessibility to insurance for those who are wholly unaffiliated with litigation. Thus, more robust regulations and monitoring and enforcement of ethical standards in portfolio funding is necessary to promote justice and integrity in the legal system.

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¹Third Party Litigation Financing:  Market Characteristics, Data, and Trends (Report to Congressional Requesters) UNITED STATES GOVERNMENT ACCOUNTABILITY OFFICE 1 (Dec. 2022), https://www.goa.gov/assets/gao-23-105210.pdf

²The Westfleet Insider:  2022 Litigation Finance Report, WESTFLEET ADVISORTS 2 (2022), https://www.westfleetadvisors.com/wp-content/uploads/2023/02/WestfleetInsider-2022-Litigation-Finance-Market-Report.pdf.

³Id.at 3.

⁴What You Need to Know About Third Party Litigation Funding, U.S. CHAMBER OF COMMERCE INSTITUTE FOR LEGAL REFORM (Feb. 7, 2023), https://instituteforlegalreform.com/what-you-need-to-know-about-third-party-litigationfunding/#:~:text=Portfolio%20funding%20allows%20the%20litigation,thier%20risk%20over%20multiple%20cases.

⁵WESTFLEEt ADVISORS supra note 2 at 5-6

⁶Third-Party Litigation Funding:  Tipping the Scales of Justice for Profit (Prepared by NAMIC State and Policy Affairs Department) NATIONAL ASSOCIATION OF MUTUAL INSURANCE COMPANIES (May 2011), https://www.namic.org/pdf/publicpolicy/1106_thirdpartylitigation.pdf

⁷Id.

⁸Id.

⁹Id.

¹⁰U.S. CHAMBER OF COMMERCE INSTITUTE FOR LEGAL REFORM supra note 4.

¹¹Id.

¹²Tasha Williams, U.S. Study of 3rd-Party Litigation Funding Cites Market Growth, Scarce Transparency, INSURANCE INFORMATION INSTITUTE, (Mar. 23, 2023), https://www.iii.org/insuranceindustryblog/federal-study-of-third-party-litigation-funding-reveals-maturing-and-growing-markets-lack-of-transparence-and-scarce-regulation/.

¹³Id.

¹⁴Mark Popolizio, Several industry groups renew calls for a mandatory TPLF disclosure rule as part of the Federal Civil Rules of Procedure, Verisk (June 9, 2023), https://www.verisk.com/insurance/visualize/several-industry-groups-renew-calls-for-a-mandatory-tplf-disclosure-rule-as-part-of-the-federal-civil-rules-of-procedure/.

¹⁵Id.

¹⁶Id.

¹⁷Id.

Costing Evidence and Requirements for the Life Care Plan

Ashley Kelly BSN, RN, CLCP

Introduction:

A Life Care Plan is a dynamic and comprehensive document which outlines necessary care, treatment, services, equipment, and the associated costs for an individual who has experienced a catastrophic injury. The costs of the plan should, when medically necessary, span the individual’s lifespan to ensure appropriate care, treatment, and support to facilitate his or her quality of life with maximum independence. Guiding and authoritative requirements for the production of a Life Care Plan are delineated through Consensus and Majority Statements, last published in 2018 within the Journal of Life Care Planning. These statements specify proper methodology that should be utilized when researching and establishing costs for a Life Care Plan. Consensus was obtained through a Delphi study with active participation and involvement by a variety of life care planning organizations and professionals, and is applicable to all Life Care Planners, no matter their professional discipline or educational background.

Specifically, Consensus Statement #85 states:

“Best practices for identifying costs in life care plans include:

a. Verifiable data from appropriately referenced sources

b. Costs identified are geographically specific when appropriate and available.

c. Non-discounted/market rate prices

d. More than one cost estimate, when appropriate”

(Johnson, Pomeranz, & Stetten, 2018, p. 17).

For the purposes of this article, I will be utilizing Consensus Statement #85 as a guide and framework to identify proper practices and methodologies when developing the costs of a Life Care Plan. Each heading directly correlates to a portion of Consensus Statement #85.

Life Care Plans should have verifiable data from appropriately referenced sources.

Certain tools should be applied when developing the costs or charges for goods and services within a Life Care Plan. Medical databases that are published and statistically valid are regularly relied upon as a reference source by Life Care Planners for costing. Databases often used when developing a Life Care Plan are the American Hospital Directory, Context 4 Healthcare, FAIR Health, and the Physicians’ Fee Reference. When using these databases, appropriate medical coding should be used to obtain pricing. Medical coding systems are updated annually, and proper usage of such codes is necessary to create a Life Care Plan with valid and reliable costing.

The following are the most commonly used coding systems and their abbreviations:

• Current Procedure Terminology (CPT)
• Healthcare Common Procedure Coding System (HCPCS)
• International Classification of Diseases 10th Revision Clinical Modification (ICD-10-CM)
• International Classification of Diseases 10th Revision Procedure Coding System (ICD-10-PCS)
• Ambulatory Payment Classification (APC)
• Medicare Severity-Diagnosis Related Group (MS-DRG)

These coding systems serve different primary purposes. Maniha (2020) describes the following:

“The ICD-10-CM represents the why (diagnosis) portion of the scenario. The CPT code represents the who (physician), what (the procedure) and/or the where (outpatient facility). The MS-DRGs represent where (inpatient facility). The ICD-10-PCS represents what (inpatient procedure), The Healthcare Common Procedure Coding System (HCPCS) includes what's included, for example equipment, supplies, orthotics, prosthetics, ambulances, devices, and some professional services” (p. 15).

Also, it should be noted that when creating a Life Care Plan, these medical databases and the correct code for each item or service should be displayed within the plan. Based upon consensus requirements, costing resources must be transparent and consistent for the plan’s reliability and validity.

Life Care Plans’ identified costs are geographically specific when appropriate and available.

Life Care Plans should be individualized to the evaluee. Healthcare goods and service costs vary greatly from one geographic region to another. Therefore, Life Care Planners should apply geographically specific costing parameters when developing their plans. After selecting the appropriate medical code, the Life Care Planner should consider the likely geographic region in which the service, treatment, and/or care will be performed. Charges vary based upon geographic area and evolve over time. Depending on the specific resource used, a geographic adjustment factor (GAF) may need to be applied to the price to calculate the appropriate regional cost.

Life Care Plans should provide non-discounted/market rate prices.

Life Care Plans should be individualized to the needs of the evaluee without regard to funding sources. According to Deutsch & Sawyer (2004),

“At no time during the plan development process should budgetary concerns influence care and rehabilitation recommendations. The life care plan was designed with the intention of citing all of the items and services made necessary by the onset of a disability/injury” (p. 5-6).

With that being said, Life Care Planners are cautioned to use both the highest and the lowest costs for any item. The pricing for items and services should not be driven by referral sources or budgetary concerns, but rather the necessity of the specific items or services needed for the evaluee as a result of a catastrophic injury.

The Life Care Planner should use costs that are Usual, Customary, and Reasonable (UCR). According to the American Medical Association the definition of UCR is as follows:

“(a) ‘usual’ fee means that fee usually charged, for a given service, by an individual physician to his private patient (i.e., his own usual fee).

(b) a fee is ‘customary’ when it is within the range of usual fees currently charged by physicians of similar training and experience, for the same service within the same specific and limited geographical area; and

(c) a fee is ‘reasonable’ when it meets the above two criteria and is justifiable, considering the special circumstances of the particular case in question, without regard to payments that have been discounted under governmental or private plans”  

(AMA Policy H-385.923, 2021).

Usual, Customary and Reasonable (UCR) pricing typically falls between the 75th to 80th percentile ranges (Weed & Berens, 2018). Life Care Planners should not be using Medicare or other insurance pricing when creating a Life Care Plan, unless jurisdictional or legal venue issues require such to be provided.

Life Care Plans can have more than one cost estimate, when appropriate.

Other resources can be used in addition to medical databases for costing within a Life Care Plan. These additional geographically appropriate and valid resources should provide a range or data point to develop Usual, Customary, and Reasonable pricing for the plan. Direct contact with vendors and/or healthcare providers within the evaluee’s geographical region can be utilized for costing parameters within a Life Care Plan when appropriately documented. When making direct contact with these vendors and/or providers, it is important for the Life Care Planner to request non-discounted costs (i.e., not insurance or sliding scales charges). The evaluee’s recent medical billing records can be another appropriate source for costing information. Billing records from the evaluee’s current treatment providers, and the specific coding from his or her past care, can provide demonstrated data to help determine and/or confirm expected future costs.

Conclusion:

A consistent approach to identifying the costs of medical services and goods is essential to creating validity for a Life Care Plan. The plan should be individualized to the evaluee’s specific medical needs and contain appropriate UCR costs. Ultimately, accurate costing throughout a Life Care Plan is integral for supplying the appropriate care, treatment, services, and equipment, fundamentally promoting quality of life and independence for an evaluee following a catastrophic injury.

About the Author

Ashley Kelly was employed for 11 years at the Medical University of South Carolina in the High-Risk Obstetrics and Gynecology Unit after earning her nursing degree. In addition to caring for obstetric and gynecological patients in the hospital setting, Ms. Kelly was an educator for the MUSC Prenatal Wellness Clinic and received several nominations for the nationally recognized Daisy Award for Extraordinary Nurses. Ms. Kelly completed a 120-hour post-graduate training program in Life Care Planning through the Institute of Rehabilitation and Education Training. She is currently a partner, Certified Life Care Planner and Forensic Nurse Researcher at InQuis Global. She is presently in residency pursuing her Doctor of Nursing Practice (DNP), with a focus in Family Medicine. She received the Medical University Hospital Authority (MUHA) full academic scholarship for her Bachelor of Science in Nursing (BSN), and recently received the Nina Smith Scholarship during her doctoral program. Ms. Kelly is a Registered Nurse (RN), and a Board-Certified Life Care Planner (CLCP).

References:

Article Title/Date: “Consensus and Majority Statements Derived from Life Care Planning
Summits Held in 2000, 2002, 2004, 2006, 2008, 2010, 2012, 2015 and 2017 and Updated Via Delphi Study in 2018/2018”
Journal Title/Lead Author: Journal of Life Care Planning/Johnson, C.
Publication Info: Volume 16, Issue #4, Pages 15-18

Book Title/Date: Life Care Planning and Case Management Handbook (Fourth Edition)/2018
Editors: Roger O. Weed & Debra E. Berens
Publisher: Routledge

Policy Statement: Definition of Usual Customary and Reasonable (Policy H-385.923)
Publisher: American Medical Association (AMA)

Book Title/Date: A Guide to Rehabilitation (Volume 1)/ 2004
Journal Title/Lead Author: Journal of Life Care Planning/Johnson, C.
Publisher: AHAB Press

Article Title/Date: “Components of a Cost/Charge Scenario as Utilized in the Life Care Plan”/2020
Journal Title/Lead Author: Journal of Life Care Planning/Maniha, A.
Publication Info: Volume 18, Issue #4, Pages 13-34

By Jeremy Falcone and Derrick Foard, Ellis & Winters, LLP

     

This has been a bad year for the Instapot, Bed Bath & Beyond, and the North Carolina Tarheels. But the non-compete provision may be the owner of the worst 2023.

Non-compete provisions are used throughout the country to limit employees’ ability to take knowledge gained at one employer and deploy it with a competing company. By some estimates, almost 20% of the current United States’ workforce is subject to a non-compete agreement. More than a third of employees have been subject to a non-compete agreement at some point during their careers. The statistics show that these non-compete agreements have become a fairly standard occurrence within employment relationships.

While other states, like California and Illinois, have statutorily prohibited non-compete agreements, North Carolina allows employers to enforce non-compete agreements. To be enforceable, the agreement meets a five-factor test. The non-compete must be in in writing; reasonable as to time and territory; made a part of the employment contract; based on valuable consideration; and designed to protect a legitimate business interest of the employer. See Copypro, Inc. v. Musgrove, 754 S.E.2d 188, 191-92 (N.C. Ct. App. 2014). The agreements also cannot violate North Carolina public policy. See Phelps Staffing, LLC v. C.T. Phelps, Inc., 226 N.C. App. 506, 509, 740 S.E.2d 923, 927 (2013)

But 2023 has suggested that the non-compete levees may run dry, even in North Carolina.

It was not February that made us shiver. Instead, in January 2023, the FTC proposed a new rule that would largely ban non-competes. The FTC described non-competes as “a widespread and often exploitative practice that suppresses wages, hampers innovation, and blocks entrepreneurs from starting new businesses.” FTC Proposes Rule to Ban Noncompete Clauses, Which Hurt Workers and Harm Competition (Jan. 5, 2023). Non-competes, the FTC claims, violate section 5 of the Federal Trade Commission Act as an unfair method of competition.

The FTC quotes some staggering figures, estimating that a non-compete ban would increase American wages by $300 billion per year.

The FTC’s proposed rule would extend to independent contractors, employees, and even volunteers. It would prohibit (a) entering into or attempting to enter into a non-compete with a worker, (b) maintaining a noncompete with a worker, or (c) representing to a worker that the worker is subject to a noncompete (in certain circumstances). The FTC did leave a little wiggle room for employers, noting that the prohibition would not extend to “other types of employment restrictions,” presumably non-solicitation and confidentiality provisions. Id. However, the FTC cautioned that those other provisions would also be prohibited if they were “so broad in scope that they function as noncompetes.” Id.

Fortunately, the courtroom will remain adjourned and no verdict will be returned in the short term. The FTC will not be voting on the proposed rule until April 2024, and it received a substantial number of public comments that will need to be reviewed prior to any implementation.

As if that wasn’t bad enough, in May 2023, the General Counsel of the National Labor Relations Board (NLRB) offered up its whiskey to the FTC’s rye in a memorandum further criticizing non-compete agreements. (See Memorandum GC-23-08). While the NLRB general counsel does not make law, she does prosecute the National Labor Relations Act (NLRA) and the position can become law if and when the NLRB issues a decision or rule. So while the memorandum is not law, it provides a good idea of which direction the Chevy is heading.

In the memorandum, the NLRB outlines its position that non-compete agreements interfere with employee rights under the NLRA.

A 1935 law may seem like odd precedent to support the NLRB’s argument. The NLRA does not mention the word “non-compete,” as it was passed long before the heyday of non-competes.

But the NRLB believes that non-compete agreements violate Section 7 of the NLRA. That provision protects the right to “self-organization, to form, join, or assist labor organizations.” Under the NRLA, it is unfair labor practice to “interfere with, restrain, or coerce employees in the exercise of the rights guaranteed” in Section 7.

According to the NLRB, non-compete provisions affect these Section 7 rights by interfering with an employee’s ability to seek better working conditions by threatening to resign, actually resign, or seeking out employment with a competitor. Non-compete provisions also prevent employees from soliciting their co-workers to work for a local competitor.

The NLRB did give lip service to some exceptions, noting that there may be some situations in which a legitimate business interest could justify the use of a non-compete agreement. But at the same time, the NLRB made clear that the church bells all were broken with any such exception:

• A desire to avoid competition from a former employee? Not a legitimate business interest.
• Retaining employees or protecting special investments in training employees? Not a legitimate business interest.
• Protecting business interest in proprietary or trade secret information? Yes, a legitimate business interest—but not a legitimate business interest that justifies a non-compete provision.

If the FTC rule and NLRB position eventually are enforced, what is left? Will the music be able to play?

Perhaps as to the King and Queen, but not the jester. The NLRB does note that “provisions that clearly restrict only individuals’ managerial or ownership interests in a competing business” may be acceptable. This is because the NLRB does not apply to “supervisors” (those who have the authority to hire, fire, discipline, promote). Presumably, a non-compete agreement signed by a manager or front-line worker may be valid if the provision only prohibits the employee from work with a competing company as a manager or owner. Similarly, it may be the case that any non-compete for a supervisor would be acceptable (even if it limited front-line work at the new employer). But the memo is not clear on that point.

But before we start singing dirges in the dark for the non-compete provisions, all hope may not be lost. In our highly-politicized environment, there is frequently a great run-up to significant change, followed by a quick district court opinion from a favorable jurisdiction that bars the change from taking place. For instance, in 2016, employers all over the country scrambled to get their policies for handling exempt and non-exempt status adjusted to meet the proposed requirements from the Obama administration. But a Texas district court issued an injunction, and the changes never took place.

Even still, the levee may end up running dry here. The proposed FTC rule and NLRB memo suggest that employers should look away from non-compete agreements and rely more on narrowly-tailored non-solicitation and confidentiality provisions to attempt to prevent their trade secrets and know-how from being brought to a competitor. Certainly employers will now risk potential enforcement action by the NLRB for attempts to hold an employee to a non-compete. Equally as problematic, though, employers may also have difficulty getting courts to grant relief based on the general thrust of the law on these provisions. A state court reviewing a motion for a TRO or preliminary injunction may be disinclined to enter such an order in the face of such headwinds on non-compete provisions generally.

So what is an employer left to do?

First, employers should revisit their current restrictive covenant provisions. Non-compete provisions should be carefully reviewed and the risk of potential NLRB enforcement action should be considered.

Next, employers should consider how they can use other restrictive covenant provisions and agreements to protect confidential information. Confidentiality provisions continue to be generally upheld, so employers can rely on these provisions to protect the most critical company information. Additionally, non-disclosure agreements are generally enforceable so long as they are reasonable in duration. Furthermore, a narrowly-tailored non-solicitation provision—particularly for important clients with whom the employee has closely worked—should be fair game.

Finally, employers should look for ways to keep employees happy. Even before the FTC proposed rule and the NLRB memo, it was sometimes difficult to enforce a non-compete provision. The best defense against needing the provision is preventing the employee from leaving in the first place.

And last, of course, grab some whiskey and rye and start singing, “This’ll be the day that I die.”

Article feature of NCADA's Employment Law Practice Group.

by Derrick Bailey, Sumrell Sugg, P.A.

Late last summer, the North Carolina Supreme Court published an opinion which touched on several immunity doctrines. In particular, the Court formally adopted legislative immunity as an individual capacity defense to State-based claims. In so doing, the Court drew not only from federal immunity doctrines, but also from doctrines unique to the State.

            A Small-Town Fire Department and a Local Election

The underlying case involved allegations of fraud, a municipal election, and the discernment of a mayor’s functions during town council meetings. Since 1954, the Providence Volunteer Fire Department (“Providence”) provided fire suppression services for portions of the Town of Weddington and the surrounding areas. Through its years of service, Providence’s fire station began to deteriorate, and in 2013, Providence and Weddington began discussing ways to finance the necessary renovations.

Coincidentally, 2013 was an election year, and several candidates, both for town council and for mayor, publicly spoke in favor of the renovations and on the need for Providence to continue providing fire suppression. William Deter, who was running for mayor, was such a candidate.

In October 2013, while the election campaigns were still ongoing, Providence and Weddington entered into an agreement that, when framed in simplest terms, provided that Providence would sell the station to Weddington, which in turn would finance the necessary renovations and lease it back to Providence for one dollar per year. Weddington also agreed to pay Providence on a monthly basis, for a minimum period of 10 years, for the provision of fire suppression services.

The agreement provided that it could only be terminated “for cause” which it defined as “the failure of either party to perform the material provisions of [the agreement] . . . include[ing], but not limited to, the failure to meet the required service level and transparency requirements[.]” The agreement additionally contained a liquidated damages clause which entitled Providence to $750,000.00 if Weddington terminated the agreement without cause. It further stated that Weddington would remain responsible for renovation costs if there was a contractual breach prior to the transfer of the station’s title.

In November 2013, after the agreement between Providence and Weddington, Deter was elected as the Town’s mayor. Providence alleged that Deter campaigned, in part, by publicly advocating for the fire department’s continued existence while secretly conspiring with certain council candidates to find a way terminate the agreement for cause, upon election, so that the Town could gain title to the station without having to pay liquidated damages.

Pursuant to the terms of the agreement, Providence transferred the fire station to Weddington via quitclaim deed on August 20, 2014. On April 28, 2015, following the results of a commissioned fire study, the town council voted to terminate the contract with Providence with the stated basis being Providence’s financial instability and inability to provide adequate assurances that it could meet its obligations under the contract. Mayor Deter did not cast a vote, but scheduled the meeting, called the vote, and allegedly encouraged the council members to terminate the agreement.

Providence filed suit against Weddington and Deter on March 27, 2018, alleging, inter alia, that the defendants fraudulently induced it into executing the agreement and subsequent quitclaim deed.

Deter moved to dismiss, asserting legislative, qualified, and public official immunity. On  November 27, 2018, the trial court denied Deter’s motion, holding that he was not entitled to immunity, at least at that early stage in the proceedings. Deter gave notice of interlocutory appeal given the substantial nature of the right associated with the immunity doctrines. On December 31, 2020, the Court of Appeals reversed, holding that Deter’s actions were legislative in nature and that he was entitled to the corresponding immunity. Providence petitioned the State Supreme Court for discretionary review, which it granted on August 10, 2021.

The Court’s Analysis

On August 22, 2022, the Supreme Court unanimously affirmed, adopting the Fourth Circuit’s legislative immunity test, which provides that an official is entitled to immunity if:  (1) he was acting in a legislative capacity at the time of the alleged incident; and (2) the acts were not illegal. Providence Volunteer Fire Dep’t, Inc. v. Town of Weddington, 382 N.C. 199, 220 (2022).

 

The Court followed the federal courts’ analysis as to the first element, thereby concluding that immunity should not limited to members of the General Assembly, but rather, should extend to all regional and local legislators because their ‘“discretion should not be inhibited by judicial interference or distorted by the fear of personal liability[.]”’ Providence, 382 N.C. at 220 (quoting Bogan v. Scott-Harris, 523 U.S. 44, 52 (1998)). The Court similarly agreed that ‘“officials outside the legislative branch are entitled to legislative immunity when they perform legislative functions.”’ Id. at 221 (quoting Bogan, 523 U.S. at 55).

During oral argument, however, the Court struggled with how to evaluate the second element as there was no authority clearly defining what constitutes an “illegal act” within the context of the test. Ultimately, the Court resolved this question by looking to Epps v. Duke Univ., 122 N.C. App. 198, 204-05 (1996), and incorporating the public official immunity standard, noting that an “official may, however, be held liable in his or her individual capacity if his or her actions were malicious, corrupt or outside the scope of his or her official duties, even if they were legislative in nature.” Providence, 382 N.C. at 220 (emphasis added).

In adopting the public official immunity standard, the Court indirectly addressed a separate, unraised issue, namely whether there was legal authority to justify a State-based version of the doctrine. The issue was not directly before the Court as “Providence ha[d] not contended that [the Court] should refrain from recognizing the doctrine of legislative immunity.” Id.

While there are a handful of State statutes that acknowledge the doctrine, there are none that authorize it. By contrast, federal legislative immunity is rooted in the Speech and Debate Clause of the United States Constitution, which provides that “Senators and Representatives shall . . . be privileged . . . for any Speech or Debate in either House[.]” U.S. Const. Art. I, § 6, Cl 1. The closest North Carolina has to a constitutional equivalent is found in Art. II, § 18, which states that “[a]ny member of either house may dissent from and protest against any act or resolve which he may think injurious to the public or to any individual” by having “the reasons for his dissent entered into [a] journal” that is to be made publicly available after the adjournment of the General Assembly. The Oxford Commentaries on the North Carolina Constitution, co-authored by Chief Justice Newby, explained that the purpose of this section was to create a public record and hold elected officials accountable to their constituents rather than insulate them. Hence, State-based legislative immunity did not have as strong a constitutional foundation as its federal counterpart.

Instead of relying on express constitutional or statutory provisions, the Court invoked the familiar language of public official immunity; “a derivative of sovereign immunity,” Toomer v. Garrett, 155 N.C. App. 462, 481 (2002), and “an established principle of jurisprudence, resting on grounds of sound public policy[.]” Smith v. Hefner, 235 N.C. 1, 6 (1952). In so doing, the Court simultaneously resolved both the issue of the doctrine’s legitimacy and its own reservations regarding adoption of the Fourth Circuit’s test.

Finally, while some of the conduct that Providence alleged gave rise to a claim of fraud occurred before Deter was elected, the Court was quick to note that it “would not have resulted in any injury to Providence in the absence of the legislative acts,” establishing that immunity is applicable if the alleged harm would not have occurred but for the legislative acts.  Providence, 382 N.C. at 221

Key Takeaways

In summary, State-based legislative immunity is not absolute, like its judicial or prosecutorial counterparts; but rather is more akin to, and subject to the same limitations as, public official immunity. That being said, the limited the scope of legislative immunity could, in certain circumstances, have the additional effect of eliminating a plaintiff’s ability to assert an alternative claim directly under the North Carolina Constitution because legislative immunity merely presents additional requirements to State torts rather than operating as a complete bar. See Debaun v. Kuszaj, 238 N.C. App. 36, 40 (2014). Moreover, the but-for standard extends to all levels of government, as long as the officials are engaged in ‘“quintessentially legislative”’ acts. Providence, 382 N.C. at 221 (quoting Bogan, 523 U.S. at 55).

By Robert Young, Trisha Barfield, and Jeffrey Harnden, Elon Law Student

North Carolina courts generally adhere to the notice pleading standard set forth in Rule 8(a)(1) of NC Rules of Civil Procedure allowing leniency in the level of particularity required by a litigant’s pleading so long as the parties are placed on notice of the transactions and occurrences giving rise to the litigant’s claim. The general standard for notice pleading as it applies to tort law requires that a litigant allege that a tortfeasor’s acts fulfill each of the elements of a given tort. For example, a claim for common law negligence requires the plaintiff to allege a (1) a legal duty; (2) a breach of that legal duty; and (3) an injury proximately caused by the defendant’s breach of duty.

Under the notice pleading standard, one would presume that a plaintiff’s negligence claim satisfies Rule 8(a)(1) through factual allegations evidencing that the defendant had a specified legal duty, breached the duty by an act or omission as described, and that the defendant’s breach of duty proximately caused a specified injury. Negligence claims are customarily pled this way in typical construction defect litigation, particularly when a contractor defendant brings counterclaims or third-party claims for indemnification and/or contribution against a subcontractor and/or manufacturer. After all, due to the often elusive nature of the true cause of construction defects, or the likelihood of multiple causes of a construction defect, it is difficult for a party to know and plead detailed facts at the early pleading stage. Prior to discovery, only the most obvious manufacturing defects would be known to the parties, and the exact methods and workmanship employed by a subcontractor may be completely unknown to the plaintiff, at least during the pleading stage. Given these practical issues, notice pleading seems an appropriate and reasonable standard.

However, the Court of Appeals appears to have recently applied a heightened notice pleading standard to third-party claims for indemnity and contribution based on underlying negligence in Ascot Corp., LLC v. I&R Waterproofing, Inc., 2022-NCCOA-747, 881 S.E.2d 353, 358, ___N.C. App. ___ , ___ (N.C. Ct. App. November 15, 2022). In Ascot, the residential construction general contractor Ascot Corp. contracted with I&R Waterproofing to waterproof a basement by installing a TUFF-N-DRI barrier system manufactured by Tremco. Id. Ascot separately contracted with Tanglewood to landscape the property. Id. Approximately two years after construction, water intrusion was discovered in the basement and Ascot independently paid for the repair of the water intrusion. Id. Ascot filed suit to recover its costs against I&R asserting claims for breach of contract, breach of implied warranty of habitability and good workmanship, negligence, and unfair and deceptive trade practices. Id. Subsequently, I&R filed a third-party complaint against both the landscaper, Tanglewood, and Tremco, the manufacturer of the waterproofing barrier, asserting claims for “compensatory damages and contribution” should I&R be liable to Ascot. Id.

I&R’s third-party complaint alleged that Tremco had a duty to manufacture the water barrier in the manner of a reasonably prudent manufacturer, that Tremco breached such a duty by negligently manufacturing the barrier, and that as direct and proximate result of Tremco’s negligence I&R had suffered damages. Id. On its face, it appears that I&R properly alleged negligence against Tremco to assert a common law indemnity and contribution claim per a notice pleading standard. However, the Court of Appeals affirmed the trial court’s dismissal of I&R’s common law indemnity claim for failure to state a claim. Specifically, the Court held:

The allegations set forth in I&R's complaint, including all incorporated allegations, fail to allege facts sufficiently specific to give information of the particular acts complained of. I&R's general allegation that "Tremco was negligent in the production, design, manufacture, assembly, and/or inspection of the Tremco Barrier System, and in breach of its duties to I&R" was not sufficiently specific and thus does not set out the nature of I&R's demand sufficiently to enable Tremco to prepare its defense. Id. at 365.

The Court relied on the same reasoning to affirm the dismissal of I&R’s contribution claim based on underlying negligence against Tremco. Id. The Court’s ruling appears to require more than mere notice pleading. Interestingly, the Court cited a case decided prior to the adoption of the Rules of Civil Procedure in affirming the dismissal. Id. The Court explained that “…a general allegation without such particularity does not set out the nature of plaintiff's demand sufficiently to enable the defendant to prepare his defense." Id. at 365, citing, Stamey v. Rutherfordton Elec. Membership Corp., 247 N.C. 640, 646, 101 S.E.2d 814, 819 (1958).

In contrast, the Court held that I&R sufficiently pled negligence to support an indemnity implied in law claim against Tanglewood, the landscaper. Id. I&R alleged that Tanglewood failed to incorporate proper drainage mechanisms in violation of the NC Residential Code, failed to install pipe of a correct length, and failed to connect certain drainpipes. Id. I&R’s claim against Tremco may have survived a Rule 12(b)(6) motion if it included more detailed allegations about Tremco’s failures and/or omissions during the design or manufacturing process. In other words, it is simply not enough to allege a conclusory allegation of negligence even when incorporating other allegations, which may present challenges for the pleader when the specific facts giving rise to negligence are not apparent at the pleading stage.

Attorneys asserting indemnity and contribution claims based on underlying negligence should read the Ascot case as a tale of caution. It is not certain whether it was only the phrasing of I&R’s claim against Tremco that led to dismissal, or whether the Court analyzed the claim relative to I&R’s more specifically pled underlying negligence against Tanglewood. Regardless, the lesson here remains that mere notice pleading pursuant to Rule 8(a)(1) may not be sufficient and pleading negligence to support indemnity and contribution claims in these cases requires more factual detail to enable a defendant to prepare his or her defense. As courts will certainly differ in considering the sufficiency of indemnity and contribution claims, attorneys should avoid pleading only legally-conclusory terms with a general incorporation of other allegations and include as much factual support as possible even when lacking knowledge of the full extent of the alleged transactions or occurrences. With these considerations in mind, attorneys can “waterproof” their pleadings from a dismissal of their claims.

By Jeff MacHarg and La-Deidre Matthews

Every litigant wants their attorneys’ fees, but actually recovering them in North Carolina is rare.  Fee recovery must be authorized by rule or statute, and fees must be “reasonable.” 

As several recent Business Court rulings remind us, when it comes to proof of “reasonableness,” more is better. 

A refresher on the basics:  A party seeking fees has the burden of establishing both entitlement and reasonableness.  Reasonableness is within the Court’s discretion and is determined based on a (non-exhaustive) list of factors.  The baseline is set by the factors in Rule 1.5 of the North Carolina State Bar’s Revised Rules of Professional Conduct, which prohibits fees that are “clearly excessive.”  These factors often overlap with those in statutes authorizing fees.  See N.C. Gen. Stat. § 6-21.6 (listing 13 “reasonableness” factors).

The list below combines factors from Rule 1.5, statutes and recent cases.  Parties seeking fees should submit proof of as many of these factors as possible.

·       The amount in controversy;

·       The results obtained;

·       The reasonableness of the time and labor expended;

·       The billing rates;

·       The fee or rates customarily charged in the locality for similar legal services;

·       The novelty and difficulty of the questions raised in the action;

·       The skill required to perform properly the legal services rendered;

·       the experience, reputation, and ability of the lawyers performing the service;

·       The time limitations imposed by the client or by the circumstances;

·       The nature and length of the professional relationship with the client;

·       Timing and amounts of settlement offers including those prior to the institution of the action, as compared to the result;

·       Offers of judgment pursuant to Rule 68 of the North Carolina Rules of Civil Procedure as compared to the result;

·       The terms of the business contract;

·       Whether the fee is fixed or contingent; and

·       Whether any interested party objects or opposes.

See N.C. Gen. Stat. § 6-21.6;  Chambers v. Moses H. Cone Mem'l Hosp., 2022 NCBC 61, ¶ 25 (N.C. Super. Ct. Oct. 19, 2022) (Conrad, J.) (assessing reasonableness of fees based on Rule 1.5 of the Revised Rules of Professional Conduct and other practical considerations). 

Notably, several of these factors are completely within the parties’ control, particularly those regarding settlement.  When a potential fee recovery is in play, parties need to know that settlement offers and demands, especially early ones, could end up helping (or hurting) a fee request that comes months or years later.  As a result, all settlement offers, demands, and positions should be documented since settlement positions often dictate (and arguably justify) the vigorousness of the litigation that follows. 

The following orders from 2022 provide other and further insights into proving reasonableness of fee requests.

Miriam Equities, LLC v. LB-UBS 2007-C2 Millstream Road, LLC, No. 19 CVS 8523, 2022 WL 2802526 2022 NCBC Order 54 (N.C. Super. Ct. July 08, 2022) (Earp, J.) involved a contract dispute where the contract allowed the prevailing party to recover their fees (as permitted by N. C. Gen. Stat. § 6-21.6).  When the defendant prevailed at summary judgment, it sought fees under the contract. 

Even though there was no opposition filed, Judge Earp still had to assess the defendant’s proof of reasonableness.  The defendant supported its fee petition with invoices, a good first step.  But the invoices had defects.  Judge Earp first commented (unfavorably) about the difficulty in trying to assess reasonableness of the work when time entries are “block billed,” i.e., different tasks are billed as a single block of time.  Additionally, some of the time entries were completely redacted, leaving no information on which to determine reasonableness. 

As for rates, the defendants did not support this fee petition with an affidavit.  Instead, the defendant relied on an affidavit its counsel submitted several months prior as part of a fee petition for a discovery sanction.  But the prior affidavit was incomplete.  It did not have rate or experience information for all of the legal professionals. 

As for hourly rates, again, the evidence was insufficient.  Much like the prevailing party in Vanguard Pai Lung (discussed below), defendant’s (prior-filed) supporting affidavit was from the lead attorney himself.  Although an attorney testifying about reasonableness of their own rates is evidence of reasonableness, one might question whether it is the most persuasive evidence.  Judge Earp considered the affidavit, but also took judicial notice of customary rates of North Carolina attorneys as reported in other attorney fee cases.  In the end, Judge Earp concluded that the rates requested in this case were somewhat higher.  She, therefore, reduced the requested rates by 15-25% to bring them more in line with other evidence of customary rates.

The above issues of proof – all of which could have been corrected or at least mitigated – resulted in roughly $100,000 in fee reductions.  Surely a balance must be struck, but in this instance more and better proof may have resulted in fewer reductions. 

Vanguard Pai Lung, LLC v. Moody, 2022 NCBC 48 (N.C. Super. Ct. Aug. 31, 2022) (Conrad, J.), also illustrates several proof and other considerations when seeking attorney’s fees.  Before even getting to “reasonableness,” parties must first apportion requested fees to only those claims that allow for fee recovery.  In this case, there were two plaintiffs and two dozen claims and counterclaims.  The jury returned a verdict in favor of the plaintiffs on several claims, but only one claim, embezzlement, allowed for recovery of fees.  See N.C. Gen. Stat. § 1-538.2(a).  Also, although the two plaintiffs shared the same counsel, only one of them prevailed on the embezzlement claim. 

Citing authority that allows recovery of all fees when fee and non-fee claims are “inextricably intertwined,” plaintiffs, jointly, sought the full $2.5 million incurred in the case as a whole.  They argued that segregation between plaintiffs and specific claims or counterclaims was not “practically possible.”  Judge Conrad disagreed. 

Judge Conrad pointed out that only one of the two plaintiffs asserted the embezzlement claim, so only one of them was entitled to any fees.  Judge Conrad also found that the claims were not so inextricably intertwined that it would be impossible to apportion fees to embezzlement over other claims and defense work.  To prove the point, Judge Conrad noted several distinct jury findings on claims that had nothing to do with embezzlement. 

As for reasonableness of work and time spent, Judge Conrad found that plaintiffs’ evidence was insufficient.  Instead of submitting bills and time entries (which plaintiffs instead offered to provide for in camera review), plaintiffs provided affidavits from counsel of record.  These affidavits included charts summarizing total hours billed by timekeeper.  But, as Judge Conrad explained, without seeing time entries, the Court cannot assess the reasonableness (or unreasonableness) of any of the work.  

As for rates, again, affidavits from counsel of record were not sufficient to justify the hourly rates of some of the out-of-state attorneys.  In particular, Judge Conrad questioned the reasonableness of hourly rates of the California lawyers from Perkins Coie LLP, which were nearly double those of able local counsel at Womble Bond Dickenson LLP. 

Ultimately, Judge Conrad denied the motion without prejudice to refile after post-trial motions and appeals.  This opinion, of course, provides a cautionary roadmap for counsel to ensure fees are properly apportioned and to ensure that  they submit their best supporting evidence with the motion.   

Erwin v. Myers Park Country Club, Inc., 2022 NCBC Order 32, (N.C. Super. Ct. June 9, 2022) (Robinson, J.) is instructive for a different and practical reason: fee awards are never guaranteed.  In this case, the party seeking fees seemed to do everything right.  Its fee petition was supported by detailed affidavits from both counsel of record and a reputable local attorney.  These affidavits ticked off many of the factors set forth above.  There were no issues with block billing.  All the relevant time entries were organized, assessed, and submitted.  But, as was reported in a previous post, Judge Robinson was not persuaded that the time spent was reasonable.  After a painstaking, task-by-task review of every single time entry, Judge Robinson exercised his discretion and awarded only 30% of the fees that were requested.  One important takeaway from this ruling is that even with a statutory mandate and seemingly the best proof a party can muster, fees are never a guarantee.  That’s because reasonable minds can always differ as to what is “reasonable.” 

Bucci v. Burns, 2022 NCBC Order 63, (N.C. Super. Ct. Nov. 17, 2022) (Conrad, J.) reiterates many of the points of above, and one more: when fees are authorized by a remedial statute, parties should request fees incurred in preparing their fee petition, i.e., fees on fees.

In this multi-party case, two of the defendants prevailed at summary judgment on some (but not all) claims asserted by certain two of seven plaintiffs.  These defendants successfully argued that the subject claims should never have been brought by these plaintiffs because, contrary to the allegations in the pleadings, these claims were never supported by any actual evidence. 

As the prevailing parties on this subset of claims, these defendants sought fees under N.C. Gen. Stat. § 6-21.5, which allows recovery of attorney’s fees caused when a party prevails on claims that were brought despite “the complete absence of a judiciable issue of either law or fact.”

In assessing these fee petitions, Judge Conrad again addressed issues of apportionment and proof.  On apportionment, (i.e., how to allocate fees caused only by the nonjusticiable claims when other claims were justiciable), the moving defendants asked the Court to simply divide the total fees incurred by the total number of plaintiffs (seven) and charge the losing plaintiffs’ their share.  Judge Conrad disagreed, explaining that this type of simple allocation would be inequitable and contrary to N.C. Gen. Stat. § 6-21.5, which allows only those fees caused by the improper filing.  Judge Conrad found that the defendants would have incurred most of the fees in defending the other claims anyway.  Instead, proper apportionment could only be had with careful review of the evidence to determine which fees were caused by the nonjusticiable claims.  But the defendants’ evidence was deficient, making it impossible to identify (e.g. by time entry) what work was caused by the nonjusticiable claims. 

Although invoices were submitted, much of the time was block-billed and aggregated.  Defendants also made no effort to try to identify and allocate time caused by the particular nonjusticiable claims.  This record evidence left apportionment within the Court’s “ample discretion,” which Judge Conrad exercised, “cautiously.” 

Judge Conrad used what information could be gathered from the invoices, and not surprisingly, awarded only a small fraction of the total fees that were requested.  For one defendant, Judge Conrad allowed recovery of approximately 50 of the 700 total hours spent on the case.  For the other defendant, whose time entries were even more inscrutable for this purpose, Judge Conrad allowed recovery of approximately 30 of 1,200 total hours spent.   Neither defendant requested or even hoped for a total recovery, but different evidence, with no block billings and detailed time entries may have made a difference. 

This Bucci v Burns opinion is remarkable for an additional reason: one of the two moving defendants requested fees incurred in preparing their fee motion, i.e., fees on fees, and Judge Conrad granted the motion (in part).  Judge Conrad acknowledged that fee petitions take time and can be expensive.  Disallowing fees on fees that are awarded under a remedial statute would have a “deterrent effect” on seeking fees in the first place, which in turn would undermine the purpose of the statute, N.C. Gen. Stat. § 6-21.5.  Since the defendant’s original fee petition was granted only in part Judge Conrad allowed only a portion (25%) of the fees incurred in preparing the fee petition.  The defendant who did not seek fees on fees was awarded nothing.  Several lessons can be taken from this aspect of the ruling including: if fees are available under a remedial statute, a requesting party should seek fees on fees.

If fees are in play, here are some takeaways:

• Apportion judiciously.  Know which claims and defenses give rise to fees as early as possible.  Ensure time entries are clear so that fees can be apportioned.  When it comes time to seek your fees, apportion them to claims that allow fee recovery.  If you don’t apportion, the Court will exercise its discretion with caution.
• Know the “reasonableness” factors.  These factors could impact settlement strategy, timing of offers, and timekeeping habits.
• Document all settlement discussions.  All settlement discussions, particularly early or pre-litigation offers, will inform the vigorousness of subsequent litigation.   
• Submit your “best” affidavit(s).  If circumstances permit, consider engaging a lawyer outside your firm to assess the case, review billing records, tasks and time spent, and provide affidavit testimony to the Court on these matters including reasonableness of rates, other market rates, and time spent. 
• Submit bills with detailed time entries.  Without time entries, the Court cannot assess the reasonableness of the time spent.  Time entries can be in the form of an authenticated summary of relevant entries or actual bills. 
• Don’t block bill.  Time entries should ascribe time to each task.  Affidavits can be used to provide evidence that may not included on the bills.
• Be realistic.  Even a well-supported or unopposed motion may be reduced.  This is yet another factor to consider when investing time to marshal and present evidence to support a fee petition.  
• Seek fees on fees.  If a remedial statute is involved, the moving party should seek fees on fees.  But, again, be realistic. 

By Michael A. Fryar, M.S., CRC, RN, CCM, CLCP, QRP  and John J. Humphreys, B.S., M.S., CRC, Inquis Global

INTRODUCTION

Severe injuries such as Spinal Cord Injuries, Amputations, Burns, Traumatic Brain Injuries and/or other Polytrauma circumstances can create very challenging and life-long consequences for an individual.  In addition to the immediate medical and functional consequences derived from these types of injuries/diagnoses, such persons are often moving through difficult psychological processes to adapt emotionally to the sudden cognitive and/or physical changes which have occurred.  More often than not, these types of significant injuries will immediately disrupt the pursuit of work and can lead to extended vocational displacement and reliance upon disability benefit systems. Vocational rehabilitation services can be provided to directly assist with the assessment, planning and overall work adjustments necessary to support re-engagement of appropriate employment endeavors. This article will explore the overall vocational rehabilitation process necessary to appropriately support persons who have experienced severe injuries and the inherent benefits in pursuing such objectives. Also, a hypothetical case scenario will be outlined for illustrative and educational purposes.

VOCATIONAL REHABILITATION  & SEVERE INJURIES 

As discussed in Foundations of Forensic Vocational Rehabilitation (Robinson, 2014), the overall vocational rehabilitation process is composed of distinct phases: Evaluation, Planning, Treatment and Termination. The Evaluation Phase typically begins through an intake interview with the individual by the Vocational Rehabilitation Counselor. The interview will likely explore relevant physical, medical, educational, vocational, psychosocial, economic and other personal factors.  Next, input through additional assessments, consults, and/or the detailed analysis of past treatment records will be pursued to establish the necessary medical and/or psychological foundation necessary to begin the process of developing an appropriate Individualized Vocational Rehabilitation Plan (IVRP) for the person.  Such plan development may include the completion of standardized testing (i.e., intelligence, aptitudes, interests, etc.) by a Vocational Rehabilitation Counselor or other qualified healthcare professionals, a work transferability analysis, vocational research and/or career counseling.  A formal individualized plan is established once the Vocational Rehabilitation Counselor has collected necessary and sufficient data/information to establish appropriate objectives to reach vocational, or potentially avocational, goals for the individual. After the Planning Phase is complete, the Treatment Phase of the overall vocational rehabilitation process begins. This phase involves the direct delivery of services to reach the educational and/or vocational goals established.  Essentially, it is the unfolding of the individualized plan through the completion of designated objectives to reach educational and/or career goals. The final phase in the standard vocational rehabilitation process includes the termination of services (i.e., the Termination Phase), which is hopefully completed after the establishment of successful employment by the individual.

Past national research (Duta et al., 2008) identified the following job placement statistical outcomes for persons after the receipt of vocational rehabilitation services:

“Sixty-two percent of the clients in this study were gainfully employed after receiving vocational rehabilitation services. Individuals with sensory/communicative impairments had the highest success rate (75%) compared to 56% for the physical impairments group and 55% for those with mental impairments.”

Historically, when it comes to the vocational rehabilitation outcomes of persons with severe injuries and disabilities, the published literature describes one of the major barriers as the appraisal of earnings available through paid employment, compared to established disability-related benefits (Robinson, 2014 & Duta et al., 2008). Specifically, Dr. Robinson points out the following (Page 7):

“A major confounding issue in evaluating the effectiveness of vocational rehabilitation services, which has little to do with the quality or type of the vocational rehabilitation intervention, is systems of financial compensation that reside outside of the vocational rehabilitation delivery systems. Examples include disability-related compensation benefits offered through workers’ compensation programs, Social Security Disability Insurance (SSDI), or veteran’s compensation benefits related to service-connected impairments.”

However, as to be discussed, the overall benefits of work can extend far beyond the economic gains received by the individual.

BENEFITS OF WORK

The International Classification of Functioning, Disability and Health (ICF) of the World Health Organization (WHO) defines employment as “… engaging in all aspects of work, as an occupation, trade, profession or other form of employment, for payment or where payment is not provided, as an employee, full or part time, or self-employed”.  A return to gainful employment after experiencing a severe injury can help individuals achieve economic self-sufficiency, attain personal growth, adjust to their disability, increase social interactions, and improve life satisfaction, health and well-being. (Trenaman et al., 2014).

Relative to the benefits of work, Ullah et al. (2017) completed a review of research regarding adults with Spinal Cord Injuries (SCI).  Based upon their empirical findings, three common themes or benefits from returning to work after such a severe neurological injury were identified.

The first theme or benefit identified was the re-development or re-defining of self. The individuals of the study had strong motivation to establish a career following the injury. Through such motivated vocational activities, they were able to gain confidence and re-establish a sense of control over their environments and lives. Moreover, reengagement of work helped these persons recognize inherent abilities and shifted their focus away from their newly acquired functional/neurological limitations or disabilities.

The second identified benefit derived from working after a Spinal Cord Injury was it promoted re-establishment of personal roles within the community.  Specifically, returning to work facilitated much needed personal opportunities for the individuals to exit their homes, interact socially, perform purposeful activities, and directly contribute to their communities in a meaningful way.

The third and final theme or benefit determined from the research concerned autonomy, and in particular, the finding that a career affords individuals with severe injuries the opportunity to regain overall self-sufficiency and personal autonomy for their lives. In summary, multiple benefits arise from the performance of work for persons with severe injuries and disabilities which extend well beyond the receipt of a paycheck.

WORKPLACE ACCOMODATIONS

Individuals who attempt employment after acquiring a severe injury often face a variety of barriers which can significantly hamper or prevent a successful return to and/or the maintenance of competitive employment. These barriers, whether perceived or actual, can often be minimized or eliminated through the implementation of effective workplace/job accommodations. The U.S. Department of Labor (USDOL) defines workplace accommodation as follows:

“A job accommodation is an adjustment to a job or work environment that makes it possible for an individual with a disability to perform their job duties. Accommodations may include specialized equipment, modifications to the work environment or adjustments to work schedules or responsibilities. Not all people with disabilities (or even all people with the same disability) need the same accommodation. For example, a job applicant who is deaf may need a sign language interpreter during the job interview; an employee who is blind or who has low vision may need someone to read information posted on a bulletin board; and an employee with diabetes may need regularly scheduled breaks during the workday to monitor blood sugar and insulin levels.”

Based upon the Americans with Disabilities Act (ADA, Title-1), an employer must provide the  reasonable accommodation(s) necessary for a qualified individual with a disability to have equal opportunity to acquire and successfully perform the essential functions of their job to the same extent as their nondisabled co-workers. According to the ADA, a reasonable accommodation should not cause the employer undue hardship, relative to their business operations.

In their systematic review regarding job accommodations, return to work and job retention for persons with physical disabilities, (Wong et al., 2021) reaffirmed while job accommodations are critical to ensuring equal access of employment for persons with disabilities, a few primary issues or concerns from employers can directly hinder the process. The first major issue the employers relayed concerned their lack of understanding job accommodations and how to effectively implement such to meet the needs and requirements of their employees. To address this employer concern, the Job Accommodation Network (JAN), a service of the U.S. Department of Labor’s Office of Disability Employment Policy (ODEP), is available to provide expert and confidential guidance regarding workplace accommodations for employers and employees free of charge.

The second concern identified by the employers within the research (Wong et al., 2021) pertained to the cost of job accommodations. However, based upon a 2019 employer survey by the Job Accommodations Network (JAN), the polled employers indicated approximately 56% of the accommodations provided did not have a cost to implement, and the remaining typically had a per occurrence expense of less than $500.00. Moreover, the surveyed employers explained the benefits of providing workplace accommodations outweighed the costs and included employee retention, improved productivity, increased morale, reduced workers compensation costs, and increased workplace diversity.

In the authors’ experiences, proactively providing and/or communicating relevant information, data and resources to employers regarding reasonable accommodations could serve to increase overall labor market opportunities for persons with severe injuries and disabilities.

TELEWORK

One possible employment avenue to consider for the accommodation of persons with severe injuries would include telework career opportunities.  Job placement into likely positions and with employers allowing, or actually preferring, their employees work from home could serve to remove environmental obstacles and effectively provide greater personal flexibility. Such vocational flexibility could improve the employee’s ability to attend medical appointments, accomplish medical treatments and/or manage daily matters such as bowel and bladder programs and other activities effectively from an accessible home. Due to the labor market impacts of COVID-19, an increasing prevalence and acceptance of telework has been observed within the national economy, which is a fortunate circumstance for individuals with severe injuries.

Relative to this matter, empirical research completed by Dingel and Neiman (2020) included direct evaluation and classification of occupations which could be accomplished remotely by an employee.  Specifically, the researchers analyzed data from the O*NET database, as well as survey findings from the Work Context Questionnaire and the Generalized Work Activities Questionnaire, in relation to the Standard Occupational Classification (SOC) structure established by the United States Department of Labor (USDOL). The researchers concluded 37 percent of national jobs can plausibly be performed from home.  Additionally, the researchers explained:

“There is significant variation across occupations managers, educators, and those working in computers, finance, and law are largely able to work from home. Farm, construction, and production workers cannot. Workers in occupations that can be performed at home typically earn more. If we assume all occupations involve the same number of hours of work, the 37 percent of US jobs that can plausibly be performed at home account for 46 percent of all wages.”

Specifically, based upon Dingel and Neiman’s research, the following percentage share of jobs arranged within their associated greater occupational grouping could plausibly be performed at home:

Computer and Mathematical Occupations	1.00
Education, Training, and Library Occupations	0.98
Legal Occupations	0.97
Business and Financial Operations Occupations	0.88
Management Occupations	0.87
Arts, Design, Entertainment, Sports, and Media Occupations	0.76
Office and Administrative Support Occupations	0.65
Architecture and Engineering Occupations	0.61
Life, Physical, and Social Science Occupations	0.54
Community and Social Service Occupations	0.37
Sales and Related Occupations	0.28
Personal Care and Service Occupations	0.26
Protective Service Occupations	0.06
Healthcare Practitioners and Technical Occupations	0.05
Transportation and Material Moving Occupations	0.03
Healthcare Support Occupations	0.02
Farming, Fishing, and Forestry Occupations	0.01
Production Occupations	0.01
Installation, Maintenance, and Repair Occupations	0.01
Construction and Extraction Occupations	0.00
Food Preparation and Serving Related Occupations	0.00
Building and Grounds Cleaning and Maintenance Occupations	0.00

In addition, Salon et al. (2022) empirically investigated telework prevalence and future projections after the pandemic through a national survey of adults and concluded the following:

“Analyzing a nationally representative panel survey of adults, we find that 40–50% of workers expect to telecommute at least a few times per month post-pandemic, up from 24% pre-COVID. If given the option, 90–95% of those who first telecommuted during the pandemic plan to continue the practice regularly. We also find that new telecommuters are demographically similar to pre-COVID telecommuters. Both pre- and post- COVID, higher educational attainment and income, together with certain job categories, largely determine whether workers have the option to telecommute.”

In summary, telework options appear to be a growing employer trend within our national economy, which could assist persons with severe injuries during their pursuit of an appropriately planned return to employment.

CASE SCENARIO

The following hypothetical case scenario for a person with a severe injury is offered for educational and illustrative purposes:

• o   Paraplegia (Young Adult)

Larry Smith, a 21-year-old male, sustained a complete Spinal Cord Injury (i.e., Paraplegia) during a motor vehicle accident. After the accident, he required a manual wheelchair for mobility, but had full range of motion and strength within his upper extremities.  He had to self-catheterize multiple times per day due to his neurogenic bladder, and he needed to follow a regular bowel program every other day. 

At the time of the Spinal Cord Injury, Larry was set to enroll into his second year of college with intended pursuit of a major for Chemistry. He had planned to complete a pre-medical school academic track. Due to the necessary hospitalization period and rehabilitative process, Larry withdrew from college. Approximately one year after the accident, he reported being very depressed and anxious about his future, especially his career. The family hired a private Vocational Rehabilitation Counselor to assist Larry.

The Vocational Rehabilitation Counselor completed an initial assessment with Larry, which was followed by standardized testing to determine his aptitudes, career interests and work values.  The initial assessment and testing were followed by a period of career counseling to pinpoint specific educational and vocational goals and objectives.  Following his experiences after the Spinal Cord Injury and the care and rehabilitation which followed, Larry presented with both tested and verbalized interests for pursing a medical degree with specialization as a Physical Medicine and Rehabilitation Physician. A detailed academic pathway was developed by both Larry and the Vocational Rehabilitation Counselor through shared research, discussions and vocational assignments during the period of career counseling. Once Larry was re-enrolled into college, the Vocational Rehabilitation Counselor met with, and remained in contact with, the Disability Coordinator for the University to ensure Larry would have appropriate environmental access and classroom modifications necessary to accommodate his wheelchair and overall needs as a person with a Spinal Cord Injury throughout his period of academic study. Larry moved back into an accessible dormitory on campus and reconnected with his prior social group after encouragement and support from the Counselor. He began college classes and remained in contact with his Counselor, at least quarterly, throughout his period of education for advocacy, counsel and guidance, as needed.  Upon completion of medical school and his necessary residency, onsite vocational rehabilitation services increased for Larry, including assistance with job seeking and placement. Also, the Counselor worked with Larry to hone his interviewing skills and overall comfort for discussing accommodation requirements for his work in the healthcare workplace.  Consultation was completed with the Job Accommodations Network (JAN) to facilitate and support Larry’s performance of essential duties as a Physician. After three months of job searching and interviewing, Larry accepted an offer of employment.  Following a successful six months of employment, at a regional rehabilitation hospital, Larry’s file was closed by the Vocational Rehabilitation Counselor, with the option to re-open, should additional career guidance, counsel and/or advocacy be needed in the future.

CONCLUSIONS

Severe injuries can significantly disrupt individuals from their active or emerging careers. When vocational displacement occurs, these individuals can benefit from working directly with a qualified and experienced Vocational Rehabilitation Counselor. An individualized plan toward a new or related career should be developed to guide such services. The plan may require academic training or focused vocational skill development to facilitate a return to gainful employment within the competitive labor market. Appropriate selection of a career path, with or without accommodations, and the development and subsequent pursuit of objectives to accomplish the intended vocational goal(s) are critical to promote financial independence for many persons with severe injuries and disabilities. Outside of the economic value, the engagement of successful employment provides many other benefits for the individual, and can mitigate many of the emotional, psychological and social challenges that often occur after severe injuries. In closing, persons with severe injuries and disabilities should not be automatically judged disqualified from the world of work. Rather, astute vocational rehabilitation assessment, with individualized planning and counsel, can serve to establish many career paths for persons with severe injuries, including those potentially not easily discerned at first appraisal. In the end, having an appropriately selected and established career can improve personal adjustment, motivation and overall quality of life for persons with severe injuries and disabilities and by virtue, is a worthy goal of pursuit.    

ABOUT THE AUTHORS

Michael Fryarearned a Bachelor of Arts in Psychology from the University of North Carolina at Chapel Hill. He subsequently graduated Summa Cum Laude with a Dual Master’s in Rehabilitation Counseling and Vocational Evaluation from East Carolina University. In 2005, he completed a 120-hour post-graduate training program in life care planning through Kaplan University with lead instructor, Dr. Paul Deutsch, the founder of the life care planning process. Finally, Mr. Fryar completed his Associate Degree in Nursing at Sampson Community College. Mr. Fryar is a Certified Rehabilitation Counselor (CRC), Registered Nurse (RN), Certified Case Manager (CCM) and Certified Life Care Planner (CLCP). He is also a registered Qualified Rehabilitation Professional (QRP) through the North Carolina Industrial Commission. Mr. Fryar has worked as a Rehabilitation Charge Nurse for the brain injury, spinal cord injury and general rehabilitation units of Wake Forest University Baptist Medical Center. He has served as the past Secretary for the International Association of Rehabilitation Professionals’ (IARP) National Forensic Board. He is currently an active IARP member and is involved with the Rehabilitation and Disability Case Management (RDCM) National Board of IARP to include past appointment to the Education Subcommittee. More recently, he became Chair for the Rehabilitation and Disability Case Management (RDCM) section of IARP. Finally, Mr. Fryar was recently invited to assist in the updating of the life care planning educational program offered by the Institute of Rehabilitation and Education Training (IRET).  In total, Mr. Fryar has worked over 22 years within the vocational rehabilitation, case management and life care planning fields. He provides independent case management and rehabilitative consultant services.

John Humphreys earned a Bachelor of Science in Education from the University of Georgia. He subsequently graduated from East Carolina University with a Dual Master’s in
Rehabilitation Counseling and Vocational Evaluation. Additionally, Mr. Humphreys received certification in Substance Abuse Counseling from Central Piedmont Community College. Mr. Humphreys is a Certified Rehabilitation Counselor (CRC). Prior to obtaining his master’s degree, Mr. Humphreys taught children with intellectual and developmental disabilities, as well as those with neurodiverse needs, to prepare them for work and independent living. In the field of rehabilitation, he worked as the Director of Vocational Services for Carolinas Rehabilitation Hospital of Charlotte, NC. In this role, he provided vocational rehabilitation counseling, vocational evaluation, case management, job placement, and training to individuals with acquired disabilities, such as Traumatic Brain Injuries, Strokes and Spinal Cord Injuries. Mr. Humphreys currently works as a Vocational Rehabilitation Counselor for the North Carolina Division of Services for the Blind. He manages a caseload of individuals with low vision and blindness and provides the rehabilitative assessments, counseling, and services necessary to assist each person with identifying, obtaining, and maintaining competitive employment. Mr. Humphreys has over 23 years of experience within the field of vocational rehabilitation, providing counseling, evaluation, placement, training, and case management to individuals with catastrophic injuries to ensure their successful return to work.

REFERENCES

American with Disabilities Act.  Retrieved from https://www.ada.gov

Dingel, J. & Neiman, B. (2020). “How Many Jobs Can Be Done At Home?” (White Paper). Becker Friedman Institute.

Duta, A. et al. (2008). “Vocational Rehabilitation Services and Employment Outcomes for People with Disabilities: A United States Study.”  Journal of Occupational Rehabilitation, 18 (4), 326-334

Job Accommodation Network (2019). Retrieved from https:// www.askjan.org

Robinson, R. (Editor). 2014. Foundations of Forensic Vocational Rehabilitation.  New York, NY: Springer Publishing Company, LLC.

Salon, D. et al. (2022). “The COVID-19 Pandemic and the Future of Telecommuting in the United States.” Transportation Research, 112 (1-24). https://doi.org/10.1016/j.trd.2022.103473

Trenaman, L. et al. (2014). “Review Interventions for Improving Employment Outcomes

Among Individuals with Spinal Cord Injury: A Systematic review.” Spinal Cord, (52), 788-794.

doi:10.1038/sc.2014.149

Ullah, M. et al. (2017). “The Meaning of Work After Spinal Cord Injury: A Scoping Review. Spinal Cord, (56), 92-105. doi:10.1038/s41393-017-0006-6

United States Department of Labor. Job Accommodations. Retrieved https://www.dol.gov/

general/topic/disability/jobaccommodations.

Weed, R. & Field, T (editors). 2012. Rehabilitation Consultant’s Handbook (4^th ed.) Athens, Ga.: Elliott & Fitzpatrick Inc.

Wong, J. et al. (2021). “Job Accommodations, Return to Work and Job Retention of People with Physical Disabilities: A Systematic Review.” Journal of Occupational Rehabilitation, (31), 474-490. doi:https://doi.org/10.1007/s10926-020-09954-3

World Health Organization. (2001). International Classification of Functioning, Disability and Health. Geneva, Switzerland.

Inquis Global is a 2023 Titanium Partner of NCADA.

by J.D. McAlister, McAngus Goudelock & Courie, LLC

NORTH CAROLINA WELCOMES ELECTRONIC FILING VIA ODYSSEY WITH AMENDMENTS TO RULE 5 AND 5.1 OF THE GENERAL RULES OF PRACTICE FOR THE SUPERIOR AND DISTRICT COURTS.

On February 13, 2023, North Carolina Supreme Court executed an Order amending the existing Rule 5 and Rule 5.1 of the General Rules of Practice for the Superior and District Courts, pursuant to its authority under N.C. Gen. Stat. § 7A-34. The need for the Amendment arose from the upcoming implementation of the new electronic filing system rolling out statewide - Odyssey. Many of us have been anticipating implementation of the system for the past few years. Odyssey will eliminate mailing delays, promote the ability to access documents remotely or outside of regular business hours, and substantially reduce excessive (sometimes) amounts of paper traded between the parties and the Court. However, the conversion in practice and procedure practice with respect to filings will require some adjustment, and likely create some turmoil (at least in the initial stages).

Despite best efforts, the COVID-19 pandemic thwarted the initial plans for the implementation of Odyssey, delaying the roll out statewide. Comments to the Order Amending Rule 5 reference the original plan to launch Odyssey in July 2021 and to expend the system to all counties within a five (5) year timeframe. Obviously, that did not happen. However, the COVID-19 pandemic did force changes in practice that helped acclimate attorneys to electronic practice in many respects, helping blunt any sudden impact of the transition to Odyssey. The amendment of Rule 5 of the North Carolina Rules of Civil Procedure in late 2020 to permit service in most situations via e-mail is an example of one such change.

The North Carolina Judicial Branch coordinated sample programs over the past two (2) years, in order to identify and address issues that may arise prior to the full launch of Odyssey statewide. The system is now ready, and officially became interactive for four select counties as of February 2023: Harnett, Johnson, Lee, and Wake. The current plan is to expand Odyssey to the remaining counties by 2025.

The advent of Odyssey will now allow for electronic filing 24 hours a day; 7 days a week, and, 365 days a year; will permit service on all counsel of record, or parties, contemporaneously with filing; will enable access to documents and grant the ability to secure file stamped copies without a trip to the courthouse; and, expand the options to make necessary payments online.

The Court executed the Order following conference on February 1, 2023. The Order mandates an effective date of February 13, 2023. In the four counties in which Odyssey is now operational (Harnett, Johnson, Lee, and Wake) attorneys must file via the electronic system. An overview of the pertinent changes ushered in by the new amended Rule 5, includes the following non-exhaustive list of changes:

1) Every attorney will need to register individually for an account on the Odyssey system in order to use it;

2) As of February 13, 2023, attorneys in counties where the Odyssey system is active (Harnett, Lee, Johnson, and Wake) are now required to file all documents via the system.

3) In the event there is an issue with the Odyssey system (referenced in the Order as a service outage, natural disaster, or other emergency) the attorney may then file, in paper, a motion seeking relief to file the document in paper or seeking other relief. If pursuing this alternative option, the attorney must attach the document to the motion. It is not the intent of this provision to permit the court to extend time or periods of limitation; the Court may only provide relief as permitted by law.

4) Parties not represented by an attorney may secure an Odyssey account, and are encouraged to file using the system, but are not required to do so.

5) There is no longer a need for attorneys, in most instances, to physically sign documents. A “\s\” notation followed by the attorney’s electronically printed name is sufficient to indicate signature on the document. Attorneys may also include electronic signature lines for other counsel involved in the action, so long as the other counsel agree to the form and substance of the document. Any attorney filing a document bearing the electronic signature of another attorney certifies by filing that the other attorney(s) have agreed to the form and substance of the document, and provided authority to submit the document on his/her/their behalf.

6) The Court, absent exceptional circumstances, must sign and file its orders, judgments, decrees, and other documents via Odyssey.

7) For all electronically filed documents in Odyssey, the time of filing will be the time the electronic system receives the document – as evidenced on the face of the document. Previously, the timing of filing was the time at which the Clerk physically stamps the document. Upon filing, Odyssey will generate a Notification of Service that operates as an “automated certificate of service” in satisfaction of Rule 5(b1) of the North Carolina Rules of Civil Procedure.

8) Paper documents remain “filed” at the time the Clerk of Court, or a judicial official authorized by law to accept the document, file-stamps the document. Documents filed by the court generally follow the same timing component as paper documents, except that the file stamp is electronic.

9) A filer may withdraw a document after electronically submitted, up until the time the Clerk of Court or a judicial official authorized by law to accept the document begins processing it.

10) The Clerk of Court or a judicial official authorized by law to accept the document also has the ability to reject improperly filed documents. Such situations may include when a document filed violates an order (such as a Gatekeeper Order), statute, or rule; when the filer submits a rejection request; and/or, when the document submitted is corrupt or quarantined for containing a virus or malicious software.

As of now, the deadline for filing documents remains 5:00 PM on the date a filing is due. Any document received by the system after the 5:00 PM deadline is considered “late filed” – treated as if filed on the following business day. This remains consistent with the current General Rules of Practice for the Superior and District Courts and the North Carolina Rules of Civil Procedure.

The comments addressing the amendments note that additional changes may be required to as Odyssey is rolled out statewide. It is plausible to envision there may be an eventual amendment that will extend the deadline to file on a given day up until 11:59:59 PM, consistent with the Federal Rules of Practice and Civil Procedure. Other states implementing Odyssey have made such changes. Neighboring state Tennessee, which authorized electronic filing in civil trial courts in 2010, implemented a time and deadline change to allow “timely filings” any time up until 11:59:59 PM, after rolling out Odyssey as its electronic filing system. The only caveat being that such documents still must be eventually “accepted” by the Clerk of Court upon review to be considered timely.

Overall, once up to speed, use of the Odyssey electronic filing system should make practice and procedure more efficient, accessible, streamlined, and cost-effective, for both attorneys, judicial officers and personnel, and the public. The key to a successful transition will require embracing technology, adaptability, and a healthy dose of patience. With respect to the latter, it is imperative to recognize that our Clerks of Court, associated personnel, and other judicial officials are also in the midst of this transition – please be kind and patient as we all adapt to the implementation of Odyssey.

No matter your position on “going virtual” continued changes to the practice of law and procedure will be substantially influenced by advances in technology, and will continue to become our new reality.

Please take the time to familiarize yourself with these new changes, including training for use of the Odyssey electronic filing system. You may find the below links, which include instructions and tutorials, helpful in your effort to prepare for implementation of Odyssey in your county:

eCourts | North Carolina Judicial Branch

NC Courts YouTube Channel

By: Ryan D. Eubanks, Sumrell Sugg PA

A vital part of achieving professional success as a young attorney is the wisdom, guidance, and support of a good mentor. However, often times the insight, advice, and war stories that help shape the young attorneys in a firm do not make it any farther than the four walls of that corner office. As part of this series, the North Carolina Association of Defense Attorneys will seek to highlight mentors throughout the state whose insight helps mold the next generation of defense attorneys, so that all of our members, but particularly our young attorneys, can benefit from it. Today’s words of wisdom come from a conversation I had with my mentor, Scott C. Hart. Scott is the managing partner at Sumrell Sugg, P.A. in New Bern, North Carolina. He has been practicing law for over 30 years (yes, as young lawyers, that is longer than some of us have been alive) and is a past member of the Board of Directors for the North Carolina Association of Defense Attorneys. He primarily focuses his practice area on insurance defense, mediation, and arbitration.

What was the best advice you were given as a young lawyer?

Try the case, not the other lawyer. I remember coming into a senior partner’s office because I was so upset about what another lawyer was doing, and I had all these ideas about how I was going to try to deal with that other lawyer. The senior partner looked at me and he said, ‘you need to try the case and not the other lawyer.’ He told me, ‘your objectivity is the most valuable thing that you can provide to your client, and if you lose your objectivity because of how you feel about the other lawyer, you cannot provide anything to your client.’ That was the best advice I ever got.

What do you believe is the appropriate work-life balance for a young attorney?

I think every experienced lawyer, on some level, probably thinks that he or she had it more difficult than the current young lawyers do, and they are probably wrong about that. The practice of law is far more efficient than it used to be because of computerized research, not just legal research but research generally. The ability to do video interviews and depositions and the use of email, text messages, and cell phones allow attorneys to get a lot more done in a shorter period of time. And so, I think lawyers that are learning how to practice now have more opportunities to get things done because of that efficiency. But I have also seen too many people burn out because they do not take care of themselves. I think it is important to focus on work while you are at work, but you also have to learn the skill of being able to close your office door at the end of the day and walk away from whatever is waiting on your desk. That means figuring out a way to get as much done as you can while you are at the office and figuring out a way to leave it behind when you are not. That is a tough thing to figure out. I think that balance is different for everybody. Some people can handle checking and returning emails late in the evening because it helps them to sleep knowing any issues have been addressed. Some people are better at saying, ‘I am not going to look at my email or respond to anything that comes in after seven or eight o’clock at night.’ I think you need to find out what works best for you. I think it is also important to find hobbies outside of your practice and to get physical exercise. It is important to find time to include those things in your schedule so you can feel like you are doing things that are for you and that you enjoy doing. It is a difficult job, and you will spend a lot of years doing it. If you burn yourself out by the time you are thirty-five, you have defeated the purpose.

What advice do you have for a young attorney who is feeling overwhelmed with their caseload?

I think every successful lawyer occasionally feels overwhelmed by their caseload. Sometimes it is helpful when that happens to carve out some time when no one is in the office to sit down and organize what is on your desk to make sure that you have a sense of what needs to get done. Whether that time is right after the office closes one evening, or coming in early one day, or coming in for an hour or two on a weekend just to kind of get a sense of what needs to be done so that you can handle it a little bit at a time. In my experience, what typically makes you feel overwhelmed is the total volume. The individual tasks are always doable, it is the number of them that overwhelms you. So if you can sit down and figure out how you are going to get through accomplishing each of those tasks, it will feel like it is much more achievable. Do not look at the whole; look at the parts.

Do you think it is important for young attorneys to be involved in organizations outside of the legal profession, whether it is a kickball league or the board of a local nonprofit organization?

Yes, 100 percent. It is good for your career to be able to interact with other professionals and to be a part of your community, but it is also just good for you as a person to be well-rounded and to be involved in things. It helps you realize that there are things going on in your community outside of your law firm. I also think it is important to be involved in legal organizations like the NCADA or the NCBA to be able to interact with other lawyers outside of your law firm and outside of your town because you can learn a tremendous amount from how other people are doing things. It is also nice to know that there are other people that are basically going through the same things that you are going through.

We often hear the term jack of all trades, master of none. Do you think young attorneys are better served focusing on mastering a few select practice areas, or should young attorneys be willing to take on unfamiliar subject matters?

There are certain areas that you can learn. The question is whether you can be competent to provide the legal services because you have an ethical obligation to make sure before you take a case or a matter that you can competently provide those services. So if someone comes to you and asks you to work on a matter that requires a tremendous amount of technical skill and you do not have that, and no one in your firm has that, and you cannot associate someone to walk you through it, then I think you are making a mistake handling that matter. If you have got those resources available to you, either inside or outside of your firm, so that you have a chance to learn that area through that process, then it is helpful. There are certain areas that are highly technical, areas like tax, finance, and banking, that I would be very hesitant to try to do if you did not have mentoring and expertise. Before you write a will or handle an estate, you want to absolutely make sure that you understand the law well enough to provide those services competently because there can be major repercussions if something is done incorrectly. I think the key is making sure that you have resources and mentoring or guidance from other lawyers and that you can learn thoroughly the area that you need for that case before you take it.

What is one thing you know now that you wish you knew when you first started practicing law?

I wish I would have known how quickly the time was going to pass. I wish I had appreciated more the times that I spent with other lawyers working on cases. I was so busy and so wrapped up in taking care of that case and moving on to the next one that I often did not take the time to step back and reflect on how much I was enjoying it. Before I knew it, I blinked, and 30 years were gone. I wish I had known how fast it would go.

What trial tips do you have for young attorneys?

I think the most important thing that a young trial lawyer can do is make sure that you come into trial with a theory and a theme and that you keep those two things in mind throughout the trial. Be willing to shift if you need to because of unexpected things that happen in the trial itself. But you have got to look at the case as it is being presented to the jury through the lens of your theme and theory of the case so that you make sure you are able to present a consistent message to the jury.

How should a young attorney prepare for their first trial?

You should write everything out that you can and try your best to prepare for every eventuality that may happen. By writing out, I mean write out your plan for your jury voir dire, your plan for your opening statement, your plan for direct and cross-examinations, and your plan for your closing. You will likely not actually follow what you have written down to the letter, but the exercise of writing it down will help you organize it. As you progress in your career, and the more cases that you try, it will become less important to write everything down in advance, but I think that it is helpful for young attorneys as they get used to trying cases. You should also try to think of every potential eventuality of what the other side might do and think about what your response will be so that you have already thought through a number of different possibilities and in your mind plotted out a way to respond to each of them.

What mediation tips do you have for young attorneys?

You should assume that your case concludes at or shortly after mediation. It is a mistake to assume that mediation is just one step in the case. If you do not go into mediation hoping to utilize it to its greatest effect, you will not get the greatest benefit out of it. We know that most cases end in mediation or shortly thereafter, so you should plan for that. You should structure your discovery around the mediation because your case is more likely to end at mediation because of the good job you did in discovery than it is to end with a jury verdict. Not that many cases get to go to trial anymore. So prepare for discovery and prepare for mediation as if they are the determining aspects of your case. They probably are.

Is it helpful to start with a reasonable response to an opening demand in mediation, or should a young attorney start with a low offer?

If you are on the defense side, in almost every case, I think you are most effective by making an aggressive opening offer and then, if necessary, making smaller moves from that point. A lowball offer almost always results in bad blood that slows the process down. If your goal is to settle your case, then you are more likely to do so with an aggressive opening move than you are with a lowball opening move.

What deposition tips do you have for young attorneys?

Prepare for your depositions as if your case depends on them. Have an outline that you use as your backbone for all of your depositions because then, no matter what happens, you have a structure that you can follow that is logical and covers not only background information but the facts of your case. Prepare for the deposition as if you were going to be taking someone’s trial testimony. Be prepared by doing a background investigation on the witness to try to find out everything you can about that witness and read their written discovery. Because a deposition is your opportunity put a witness on the spot, get their testimony, and evaluate how they perform, you need to be prepared in order to make sure you get the best out of that.

I know in your depositions you do not introduce a lot of exhibits. What is your thinking behind that, and do you recommend that to others?

I think it is a personal preference thing. I know some lawyers who are extremely effective and who use lots of exhibits in their depositions. I have always tried in my depositions to focus on how a witness is handling my questions, and I can do that better by focusing my attention on the witness and their answers rather than giving them an exhibit. I also want to know how they are going to respond to me without the benefit of having something in front of them to refer to. But I am always willing, if they have given me information that is contrary to something that I have, to put an exhibit in front of them that shows they are inconsistent. I usually bring exhibits, but I often don’t use them. I never admit exhibits just for the sake of having them.

What are the most common mistakes you see young attorneys make, and how can those mistakes be avoided?

The biggest mistake I see young lawyers make is being unpleasant to other lawyers. This job is stressful enough without unnecessarily getting into fights with lawyers on the other side or on the same side about cases. In my experience, most disputes can be worked out between lawyers behaving reasonably. I think too many young lawyers think that their job is to be in a constant state of altercation, and I do not think that is helpful at all. Some of my best friends are people that I have had on the other side of cases, that I became good friends with during the case, and who I respected and trusted a great deal. We did battle in court when we needed to, but I also trusted them at their word and respected them for the job that they were doing. There is no need for things to become personal, and it should not ever become personal. As a young attorney, there is something to be said for building trust and relationships with attorneys on the opposing side because you will almost certainly see them again, and building those relationships may pay off for you and your clients later in your career. Be prepared, be professional, and be pleasant. Those are the three most important things I think a lawyer can do to cement their reputation. Be prepared for your case to make sure that nothing happens that you haven’t spent time thinking about and preparing for. Be professional and make sure that you are being courteous and providing good communication with other lawyers, and treating them the way you would want to be treated. Be pleasant, be enjoyable to work with, and be a nice person; it is not going to hurt your client, and it will make your life a lot more fun.

What has impressed you the most about the young attorneys that you have come into contact with?

Because law school has become so expensive, people only go to law school if they really want to be lawyers. When I went to school law school, it was relatively inexpensive, and there were people who did it because they did not know what else they wanted to do. Because it is now such a financial commitment, I think that the people that are going into it really want to do it and do it well. So, the commitment that I have seen in young lawyers has been impressive to me. I also think that our law schools are doing a good job of training our young lawyers for legal analysis. That is a skill that is very helpful for a young lawyer, and I have been impressed with that.

What tips do you have for young attorneys that want to continue to advance professionally?

Find practice areas and cases that you have a passion for because if you truly enjoy the work, you will excel at it. Clients will find you, work will find you, and you will be successful. Do not get caught up in how profitable it is because if it makes you happy and challenges you, that is the work you should be doing.

What advice do you have for a young attorney who finds themselves facing off against a more experienced attorney?

You cannot control the facts of your case, and you cannot control how much age and experience the other side has, but you can control how hard you work in preparing the case. You can make sure that you never go into a deposition, a mediation, a hearing, or a trial where you have been outworked. There is at least a decent chance that the older, more experienced lawyer may not have had the time that you have been able to commit to it. They do not simply provide victories to the person with the grayest hair.

Do you think experienced staff should play a role in guiding a young attorney?

Absolutely. I think an experienced legal assistant or paralegal can be a huge help to a young lawyer in trying to figure out how to do things. Young lawyers should be open to listening to experienced staff. Some of the best judges I have ever seen learned more from the clerks than from anybody else. Do not think that just because you have a law degree hanging on your wall that there is nothing you can learn from anybody else in the building.

What risks should a young attorney be willing to take?

I think you should always be willing to run the risk that you are going to lose a case. If you are a defense lawyer, the better you are at defending cases, the more difficult cases you are going to get, and you are not going to get to win all of those. It is not your job to win every case; it is your job to provide good legal advice and to fully evaluate and handle your cases. So, do not get wrapped up in the wins and losses, they are really meaningless.

If you are interest in submitting a “Conversations with a Mentor” article for publication, please contact Ryan Eubanks (reubanks@nclawyers.com) or Halee Morris (halee.morris@mgclaw.com).