ERISA Claims Against Settlement Funds page 8 Lawyers as Good

THE NORTH CAROLINA STATE BAR

JOURNAL

IN THIS ISSUE

ERISA Claims Against Settlement Funds page 8Lawyers as Good Sports page 14My Katrina Experience page 32

SPRING

2006

8 SPRING 2006

IntroductionERISA is a comprehensive statute that

regulates retirement and other welfare bene-fit plans provided by an employer1—excluding church2 and governmental3

employers which are not subject to ERISA’sprovisions. Although the rules, regulations,and oversight provided by ERISA are all-encompassing with respect to pension plans,they are not abundant with respect to other

employee welfare benefit plans such ashealth insurance plans. As for employee wel-fare benefit plans, the statute contemplatesthe development of federal law through thefederal courts. Unfortunately, uniformity

Trying to understand the

Employee Retirement

Income Security Act of

1974 (ERISA), 29 U.S.C.

§ 1001, et seq., as it relates to claims of reimbursement or subrogation out of

the proceeds recovered for injured plaintiffs from third parties, is often an exer-

cise in frustration for the personal injury practitioner. This article cannot

address all the complex and troubling aspects of ERISA but it will try to give

a “heads-up” to those who must attempt to decipher this sometimes cryptic

Act.

ERISA Claims AgainstSettlement Funds Since Great-West vs. Knudson

B Y A R T H U R J . D O N A L D S O N

has not been achieved, and we have endedup with a patchwork of rulings by the feder-al circuits with the Supreme Court fromtime-to-time settling some of the differ-ences. To complicate the practitioner’s workone cannot be complacent with just know-ing the Fourth Circuit cases as venue, andapplicable circuit law, in an ERISA case isnot necessarily dependent upon where theinjury occurred.4

Significance of plan being self-ffundedor insured

Every health insurance plan provided byan employer must be analyzed to deter-mine whether or not it is an ERISA gov-erned plan.5 Most health insurance plansprovided by employers are governed byERISA. Assuming the plan is ERISA gov-erned, the pivotal issue in North Carolinais whether it is a self-funded plan. If theplan is self-funded, the terms of the plandocuments control the breadth and widthof its reach including the extent, if any, ofits claimed right of subrogation or reim-bursement.6

If the plan is not self-funded but ratherfully insured, North Carolina’s anti-subroga-tion prohibition contained in theAdministrative Code prevents subrogationin contracts of health insurance policies.7

There are instances when a fully insuredplan contains subrogation language. Thisoccurs most often when the employer is anational or regional company and obtains asingle health insurance policy from an out ofstate health insurance company. In such aninstance the subrogation or reimbursementprovision probably would not be effective inNorth Carolina.

Determining whether a plan is self-funded or insured

Determining whether or not a plan isself-funded is not always easy. To simplify, ifthe employer purchases an insurance policyand pays a premium and the insurance com-pany assumes all of the risk, then it is aninsured plan (and, as previously noted, if itis an insured plan there can be no subroga-tion or reimbursement). But, if the financialrisk falls in any way to the employer (or to acombination of employer and employeefunding) then it is a self-funded plan. Thepurchase of stop-loss coverage does not con-vert an otherwise self-funded plan into aninsured plan.8

In order to determine whether a plan isself-funded, it is useful to obtain an author-ization from the beneficiary to request infor-mation from the plan.9 The request for plandocuments must be made of the planadministrator.10 The plan administrator isusually identified in the Summary PlanDescription (SPD). Most often, but notalways, the plan administrator is theemployer. The third party administrator orthe subrogation company representing aplan is not a plan administrator within themeaning of ERISA.

The request to the plan administratormust be specific. Copies of the followingdocuments should be specifically requested:the plan’s three digit identification number,the summary plan descriptions (and amend-ments) for all relevant years, all contracts oragreements establishing the plan, the decla-ration pages of all insurance contracts withthe plan including reinsurance and stop-losscoverage, the IRS Form 5500 for each rele-vant year, written policies, memoranda,minutes of meetings, and any other writtendocumentation addressing reimbursement

or subrogation, enforcement or waiver ofthe same, from the date of establishment ofthe plan until the present.

Failure of the plan to provide therequested information within 30 daysexposes the plan to a penalty of $110.00 perday.11

IRS Form 5500 is the AnnualReturn/Report of Employee Welfare Plan.Part 1 section 9a reflects the plan’s fundingarrangement as reported by the plan. If thefunding arrangement is indicated as“Insurance” then it would reflect, absent amistake in filling out the form, that theplan is insured and North Carolina’s anti-subrogation rule would prevent the planfrom seeking reimbursement. Quite oftenthe Form 5500 indicates that insuranceand the general assets of the sponsor(employer) fund the plan. In such a casethe plan is probably self-funded and hasstop-loss coverage. A valid argument can bemade that the amount of recoupment towhich the plan is entitled is only theamount not covered by stop-loss insurance.An online source for IRS Form 5500s for

THE NORTH CAROLINA STATE BAR JOURNAL 9

most companies can be found atFreeERISA.12

Studying the plan documents is crucial.If the plan has no provision for subrogationor reimbursement, then there is no subroga-tion or reimbursement. If the plan statesthat it seeks subrogation or reimbursementfrom just a liability carrier, then that wouldbe the extent of its recovery. Unsurprisingly,most often plans seek recovery from allsources.

If self-ffunded, what remedy does aplan have

Having established that the plan is a self-funded ERISA plan, and that the languagein the plan covers the sources of recovery bythe injured person, the next inquiry is: whatremedy does the plan have against theinjured person or the attorney for theinjured person? That question was answeredin Great-West Life & Annuity Ins. Co. v.Knudson, 534 U.S. 204, 122 S. Ct. 708, 151L. Ed. 2d 635 (2002). The plan soughtreimbursement from the plan beneficiaryout of funds already disbursed. TheSupreme Court found that only an equi-table remedy is available to the plan andheld that ERISA plans cannot seek reim-bursement from the client after settlementand disbursement in an action at law. TheCourt based its decision on the remedy por-tion of the statute13 which the court inter-preted as providing that the only remedyavailable to a plan was an equitable remedy.And that equitable remedy must be againstidentifiable funds.14

In response to Great-West, ERISA plansoften seek the imposition of constructivetrusts—an equitable remedy—againstspecifically identifiable funds from settle-ment or verdict either in an attorney’s trustaccount, in possession of a court, in anescrow account, or otherwise not commin-gled with client funds.15

The Federal Circuits have split regardingwhether a constructive trust may beimposed against identifiable funds. TheFourth,16 Fifth,17 Seventh,18 and Tenth19

Circuits have focused solely on the remedysought and concluded that it was appropri-ate for plans to seek imposition of a con-structive trust on identifiable proceedsbecause that was equitable in nature. On theother hand, the Sixth20 and Ninth21

Circuits have focused on the basis for theremedy and concluded that because the

basis was contractual in nature, there can beno remedy seeking imposition of a con-structive trust.

Liability of attorney after disburse-ment

Generally there has been no personal lia-bility placed on the attorney for the injuredparty who has disbursed settlement funds tothe injured party.22 However, a plan maypursue settlement funds in the trust accountof a plan beneficiary’s attorney.23

It has been opined that personal liabilitymight be imposed on the injured party’sattorney where the attorney acted in badfaith and breached some unspecified equi-table duty owed to the plan, but, in theabsence of such an ephemeral duty, theattorney is free to choose distributionoptions that appear to favor the client.24

Liability of beneficiary of plan afterdisbursement

Prior to Great-West v. Knudson theFourth Circuit held that a plan could, underthe theory of unjust enrichment, sue at lawto recover funds advanced by a plan to abeneficiary as compensation for injuriescaused by a third party after the beneficiaryrecovers a compensatory award from the at-fault party.25 However, the holding wasquestioned after Great-West v. Knudsonwhen the Fourth Circuit stated “…the justi-fication for the court’s recognition of a fed-eral common law unjust enrichment claimin Waller is in serious doubt, as it is nolonger debatable that Provident has an‘explicit remedy’ under § 1132(a)(3).”26 It isnow clear that the Fourth Circuit wouldimpose a constructive trust on identifiableproceeds in the possession of the plan bene-ficiary as an equitable remedy but will notimpose “personal liability” or a “moneyjudgment” against an individual beneficiaryas such a remedy at law is beyond thepurview of the ERISA equitable remedyscheme.27

ConclusionFrom the plaintiff ’s perspective it is

extremely important that the client beinvolved from the outset when the presenceof a self-funded ERISA plan is suspected.The client should be given options such asallowing the attorney to negotiate with theplan to reduce the amount claimed by theplan. Should the client still be covered by

the health plan after settlement, the clientshould be informed that the plan mightwithhold future benefits as an equitablemeans of recoupment should it not be reim-bursed.

An ERISA claim is not a lien and onlythe imposition of a constructive trust uponidentifiable funds creates a lien. While casesinterpreting ERISA refer to both “subroga-tion” and “reimbursement” the distinction,and the consequences of the distinction, arerarely recognized. The same is true withrespect to cases which do not acknowledgethe difference between a “lien” and a“claim.”

If the client instructs her attorney to dis-burse the funds to her and not pay the plan,a written directive should be signed by theclient.28

Following a tour as a special agent with theFederal Bureau of Investigation, Donaldsonhas been a practicing attorney in Salisbury andGreensboro, North Carolina, since 1967.

Endnotes1. 29 U.S.C. § 1002(1).

2. 29 U.S.C. § 1321(b)(3).

3. 29 U.S.C. § 1321(b)(2).

4. Mid Atl. Med. Servs., LLC v. Sereboff, 407 F.3d 212 (4thCir.2005), pet. for writ of cert. granted November 28,2005.

5. 29 U.S.C. § 1003(a).

6. Hampton Industries v. Sparrow, 981 F.2d 726, 730 (4thCir. 1992); McGill Corp. v. Stinnett, 154 F.3d 168, 172(4th Cir. 1998).

7. N.C. Administrative Code T11-C12.0319 entitledSUBROGATION PROHIBITED provides:

Life or accident and health insurance forms shall notcontain a provision allowing subrogation of benefits.

8. Thompson v. Talquin Building Products Company, 928F.2d 649 (4th Cir.1990).

9. AUTHORIZATION FOR RELEASE OF EMPLOY-EE WELFARE BENEFIT PLAN INFORMATION

Pursuant to 29 U.S.C. § 1024(b)(4), the undersignedhereby authorizes my employer/former employer tofurnish to my attorneys, ______, a copy of all employ-ee welfare benefit plan documents in existence duringmy employment. This authorization includes any andall documents enumerated in Section 1024(b)(4),including but not limited to the latest updated sum-mary plan descriptions, plan descriptions, latest annu-al reports, terminal reports, applicable collective bar-gaining agreements, trust agreements, contracts, orother instruments under which any of the plans at issuewere established or are presently operated.

NOTICE: Neither the employee welfare benefit planadministrators nor my employer/former employer isauthorized to disclose to any third party includinginsurance adjusters, insurance companies, or any otherperson or entity, any personal information pertainingto me or the medical treatment I received or the costthereof. The undersigned claims every confidentiality

10 SPRING 2006

privilege whether federal or state and whether createdby statute, rule, or case law. Such personal informationincludes any information in my personnel file or anyother information obtained by my employer/formeremployer, the plan, or its agents in the course of admin-istering the plan and paying benefits pursuant to theplan.

ALL PRIOR AUTHORIZATIONS ARE HEREBYCANCELED, and I hereby waive any privilege I haveregarding release of said information to my attorneys.A photocopy of this authorization shall be consideredthe same as the original

Employee/Plan Participant: _______________

Date: _____________

10. 29 U.S.C. § 1024(b)(4).

11. 29 U.S.C. § 1132(C)(1)(B); 29 C.F.R. § 2575.502c-1.

12. Available at www.freeerisa.com.

13. 29 U.S.C. § 1132(a)(3). A civil action may bebrought by a fiduciary

(A) to enjoin any act or practice which violates any pro-vision of this subchapter or the terms of the plan, or (B)to obtain other appropriate equitable relief (i) to redresssuch violations or (ii) to enforce any provisions of thissubchapter or the terms of the plan.

14. Primax Recoveries, Inc. v. Carey, 2002 U.S. Dist.LEXIS 15818, 2002 WL 1968339, (S.D.N.Y. 2002);Primax Recoveries v. Goss, 240 F. Supp. 2d 800 (N.D.Ill.2002); Mid Atl. Med. Servs., LLC v. Sereboff, 407 F.3d212 (4th Cir. 2005), pet. for writ of cert. grantedNovember 28, 2005.

15. Wellmark, Inc. v. Deguara, 257 F. Supp. 2d 1209(S.D. Iowa 2003).

16. Mid Atl. Med. Servs., LLC v. Sereboff, 407 F.3d 212(4th Cir. 2005), pet. for writ of cert. grantedNovember 28, 2005.

17. Bombardier Aerospace Employee Welfare Benefits Plan v.Ferrer et al., 354 F.3d 348 (5th Cir. 2003).

18. Admin. Comm. of Wal-Mart Stores, Inc. Assocs.’ Health& Welfare Plan v. Varco, 338 F.3d 680 (7th Cir. 2003).

19. Admin. Comm. of Wal-Mart Assocs. Health & WelfarePlan v. Willard, 393 F.3d 1119 (10th Cir. 2004).

20. Qualchoice, Inc. v. Rowland, 367 F.3d 638 (6th Cir.2004).

21. Westaff (USA) Inc. v. Arce, 298 F.3d 1164 (9th Cir.2002).

22. Hotel Employees & Restaurant Employees InternationalUnion Welfare Fund v. Gentner, 50 F.3d 719, 720-22(9th Cir.1995); Chapman v. Klemick, 3 F.3d 1508(11th Cir.1993), cert. den., 510 U.S. 1165 (1994);Health Cost Controls of Illinois, Inc. v. Washington, 187F.3d 703, 709 (7th Cir. 1999), cert. denied, 528 U.S.1136 (2000); Southern Council of Industrial Workers v.Ford, 83 F.3d 966 (8th Cir. 1996); Md. Elec. Indus.Health Fund v. Levitt, 155 F. Supp. 2d 482 (DMd2001); Mid Atl. Med. Servs., Inc. v. Do, 294 F. Supp. 2d695 (D. Md. 2003); Great-West Life & Annuity Ins. Co.v. Bullock, 202 F. Supp. 2d 461 (E.D.N.C. 2002).

23. Bombardier Aerospace Employee Welfare Benefits Plan v.Ferrer et al.,354 F.3d 348 (5th Cir. 2003)(section1132(a)(3) authorizes a cause of action against an attor-ney who holds disputed settlement funds on behalf ofa participant in an ERISA plan); IBEW-NECASouthwestern Health & Benefit Fund v. Douthitt, 211 F.Supp. 2d 812, 816 (N.D. Tex. 2002)(finding that thesettlement funds at issue, which were being held in theattorney’s trust account for the plan beneficiary, were

within the plan beneficiary’s possession and control);see also Great-West Life & Annuity Ins. Co. v. Smith, 180F. Supp. 2d 1311 (M.D. Fla. 2002).

24. Mank v. Green, 368 F. Supp. 2d 102, (D. Me., 2005).

25. Provident Life & Accident Insurance Co. v. Waller, 906F.2d 985 (4th Cir. 1990).

26. Provident Life v. Cohen, 423 F.3rd 413 (4th Cir.2005).

27. Primax Recoveries v. Young, 83 Fed. Appx. 523; 2003U.S. App. LEXIS 25786 (unpublished decision).

28. The undersigned client acknowledges being advisedby my attorney that a self-funded welfare benefit planmay have paid some or all of my medical and hospitalexpenses associated with the treatment of the injuriesfor which I am receiving proceeds. My attorney hasinformed me that the plan may, but is not required to,

seek reimbursement, restitution, or subrogation fromthese proceeds or from me personally.

I have been advised by my attorney that

the plan may cut off (or draw down) future benefitsto me or other beneficiaries of the plan until its claimis satisfied

the plan may sue me or other family members/bene-ficiaries of the plan seeking reimbursement

if the plan files a lawsuit I may be liable for the plan’sattorney fees and costs if I lose

if the plan files a lawsuit my attorney is not obli-gated to represent me in such action

Having been fully informed of the consequences of mydecision I authorize and direct my attorney to NOTdisburse any funds to the plan and further direct myattorney to disburse to me such funds.


12 SPRING 2006

General Legal FirstsThe North Carolina Bar Association

was founded in 1899.1 It was well receivedfrom the beginning, securing the member-ship of a high percentage of the state’sattorneys, including many of the leadinglawyers from across the state.2 Its charter

class included 157 lawyers and, by the timeof its first annual meeting, it had 251members.3 The Bar Association now boastsmore than 12,500 members.

On April 3, 1933, the GeneralAssembly passed legislation incorporatingthe North Carolina State Bar.4 Prior to that

time, the North Carolina Bar Associationhad handled the examination, licensingand discipline of North Carolina lawyers,establishing the first board of law examin-ers in 1915. By 1932, the Bar Associationdecided that an incorporated State Barestablished by legislative enactment wasnecessary to control the examination,licensing and disbarment of attorneys andto prevent the unauthorized practice of thelaw.5 At present, the North Carolina StateBar has approximately 19,500 active mem-bers.6

Court FirstsIn 1712, Christopher Gale became the

first chief justice of the North Carolinageneral court, a precursor to the NorthCarolina Supreme Court. In 1776, theGeneral Assembly appointed the firstjudges to the North Carolina SupremeCourt.7

In 1790, James Iredell became the firstand only North Carolinian to serve on theUnited States Supreme Court.8 The ChiefJustice at the time was John Jay, and theCourt met in New York City, which wasthe national capital at the time.

Female Lawyer FirstsTabitha Anne Holton of Guilford

County became the first woman licensedto practice law in North Carolina in1878.9 North Carolina was only the sixthstate to grant a woman a law license. Uponpassing the North Carolina state bar,Holton also became the first female to be alicensed attorney in the south.10 In 1919,Katherine Everett became the first femalelawyer to argue a case before the NorthCarolina Supreme Court.11 Reports indi-

Important “Firsts” in the NorthCarolina Legal Profession

B Y A L A N D . W O O D L I E F J R .

With the recent announce-

ment of another important

“first” in the North

Carolina legal field—the

appointment of the first African-American woman to the North Carolina Supreme Court—

it struck me how little I know about the history of the legal profession in North Carolina. The

legal history I recall from law school centered on the United States Supreme Court and the

evolution of our constitutional jurisprudence. I do not recall having learned any specific

North Carolina legal history, except the “history” that occurred while I was in law school and

since my graduation. This article details some of the North Carolina legal “firsts” that I have

uncovered recently.

cate that she won the case.12 In October2000, M. Ann Reed became the firstfemale president of the North CarolinaState Bar.

In 1949, Susie Sharp became NorthCarolina’s first female superior courtjudge.13 In 1962, she went on to becomethe first woman to serve on the NorthCarolina Supreme Court.14 In 2003,Allyson Duncan became the first womanfrom North Carolina to serve on theFourth Circuit Court of Appeals.15

African-AAmerican Lawyer FirstsIn 1871, James Edward O’Hara,

became the first African-American manlicensed to practice law in the state.16 Hewas a Howard University law graduate anda Republican activist.

There is some question about who wasthe first African-American woman licensedto practice law in North Carolina. Onesource indicates that Elreta Alexanderbecame the first African-American womanto be licensed as a lawyer in NorthCarolina in 1947.17 However, anothersource indicates that Ruth WhiteheadWhaley holds this distinction, having beenlicensed in 1933.18

In 1939, North Carolina CentralUniversity School of Law was founded toprovide an opportunity for a legal educa-tion to African-American students inNorth Carolina. It enrolled its first stu-dents in 1940.19 In June 1951, the lawschool at the University of North Carolinaat Chapel Hill enrolled its first African-American students.20

In 1971, Sammie Chess, Jr. became thefirst African-American to be appointed aSuperior Court Judge in North Carolina.21

In 1983, Henry E. Frye of Greensboro wasappointed as an associate justice of theNorth Carolina Supreme Court. He wasthe first African-American to serve on theCourt and, of course, the first African-American Chief Justice of the Court.22

In October 1999 Cressie H. Thigpen Jr.became the first African-American presi-dent of the North Carolina State Bar.23

Twenty years later, in 2003, AllysonDuncan became the first African-Americanwoman to serve on the Fourth CircuitCourt of Appeals.24 Now, in 2006, PatriciaTimmon-Goodson of Fayetteville is thefirst African-American woman to serve onthe North Carolina Supreme Court.25

Legal Education FirstsWhile there may have been some small,

independent law schools in North Carolinaprior to 1894, that year marked the forma-tion of the first law schools at the estab-lished colleges and universities of the state.The law school at the University of NorthCarolina at Chapel Hill was incorporatedinto the university that year.26 Wake ForestSchool of Law was also founded thatyear.27 Anyone with information establish-ing which law school was first and breakingthis tie is invited to e-mail the author.

Willis Whichard, Dean of the CampbellUniversity School of Law, holds the dis-tinction of being the first person to serve inboth houses of the North Carolina legisla-ture and on both of the state’s appellatecourts. He is now also the first person tohold all of these positions and a deanship ata North Carolina law school.28

Finally, Leary Davis, the founding Deanof the new Elon University School of Lawin Greensboro, is the first person to serve asthe founding dean of two North Carolinalaw schools, having previously served atCampbell. As impressive as that accom-plishment is, it is rivaled by that ofMaurice T. Van Hecke, who was the firstperson to serve as the Dean of two NorthCarolina law schools at the same time,serving at both the University of NorthCarolina at Chapel Hill and NorthCarolina Central University from 1939 to1942.29

ConclusionObviously, this article has just skimmed

the surface of North Carolina legal historyand leaves many “firsts” for potential futurearticles. Some of the items briefly touchedupon here would make good topics forfull-length articles in and of themselves. Ifyou know of other interesting “firsts” in theNorth Carolina legal profession or furtherinformation about some of the firsts listedhere, please e-mail the author at [email protected].

Alan Woodlief is the associate dean foradmissions and an associate professor of lawat the Elon University School of Law. Hereceived his BA in Journalism and MassCommunications from the University ofNorth Carolina at Chapel Hill and his JDfrom Campbell University School of Law.

Endnotes1. http://www.ncbar.org/about/history/excerpts.aspx,

quoting Chapter 3 of the Centennial History Book-Seeking Liberty and Justice: A History of the NorthCarolina Bar Association, 1899-1999.

2. Id.

3. http://www.ncbar.org/about/history/whyBoth.aspx

4. http://www.ncbar.org/about/history/excerpts.aspx,quoting Chapter ___ of the Centennial History Book-Seeking Liberty and Justice: A History of the NorthCarolina Bar Association, 1899-1999.

5. Id.

6. http://www.martindale.com/xp/Martindale/profes-sional_Resources/Bar_Associations/State/profiles/NCbar.xml#profile

7. http://www.jomc.unc.edu/executiveeducation/hand-outs/2002aoc-brochure.pdf

8. http://usgovinfo.about.com/blcthistory.htm

9. http://www.ncbar.org/about/history/excerpts.aspx,quoting Chapter 2 of the Centennial History Book-Seeking Liberty and Justice: A History of the NorthCarolina Bar Association, 1899-1999.

10. http://www.ncmuseumofhistory.org/nchh/women-shist.html


12. http://carolinafirst.unc.edu/distprofs/everett.htm


14. Id.

15. http://dole.senate.gov/index.cfm?FuseAction=FloorStatements.Detail&FloorStatement_id=6&Month=7&Year=2003http://dole.senate.gov/index.cfm?FuseAction=FloorStatements.Detail&FloorStatement_id=6&Month=7&Year=2003

16. http://www.ncbar.org/about/history/excerpts.aspx,quoting Chapter 2 of the Centennial History Book-Seeking Liberty and Justice: A History of the NorthCarolina Bar Association, 1899-1999.


18. http://www.jtbf.org/firstlawyers.htm

19. http://www.nccu.edu/law/aboutus/hisfacts.htm

20. http://www.unc.edu/news/archives/nov01/bsm112601.htm

21 http://www.nationalbar.org/pdf/nbamag9-12-05.pdf

22. http://www.aoc.state.nc.us/www/copyright/sc/facts.html (Martin Brinkley)

23. http://www.nccu.edu/publicrelations/news/376.htm

24. http://dole.senate.gov/index.cfm?FuseAction=FloorStatements.Detail&FloorStatement_id=6&Month=7&Year=2003http://dole.senate.gov/index.cfm?FuseAction=FloorStatements.Detail&FloorStatement_id=6&Month=7&Year=2003

25. http://www.newsobserver.com/114/story/390572.html

26. http://www.unc.edu/about/history.html, quotingCarolina - A Brief History, which was adapted from anarticle by William S. Powell, Professor Emeritus,Department of History.

27. http://law.wfu.edu/x47.xml

28. http://www.lawweb.campbell.edu/facadmin/facbio.cfm?staffid=19

29. http://www.nccu.edu/law/aboutus/history1.html


14 SPRING 2006

Lawyers as Good SportsB Y H . L A N D I S W A D E J R .

While watching the last football game of the day on Thanksgiving, I

thought about the idea of lawyers as good sports. A month or so before,

I witnessed a very successful high school football coach in the area run

up the score on the opposing team. Rather than have his quarterback

take a knee when the game was won, he opted instead to run a quick sweep to add a useless touchdown as time expired to end the game.

A few weeks went by, and I mentioned this

act of unsportsmanlike conduct to a few of

my fellow Optimist Club members as we

were discussing sportsmanship in our youth

work program, Pop Warner football. I made

the observation that the mindset of this high

school coach was trickling down to the

younger levels of athletics.


To make my point, I commented that Ihad seen a Pop Warner coach in a recentgame elect to pass the football to try to getan unnecessary touchdown with less than aminute to go in the game. His team wasleading by two touchdowns at the time andthe game was clearly out of reach. Thisstarted a discussion about whether suchconduct could or should be punished. Onemember commented that there was no spe-cific rule that seemed to address the behav-ior. I thought about this comment andabout how different people have differentopinions as to what constitutes good andbad sportsmanship.

Having played high school and collegesports, having been a little league baseballcoach for 20 years, having been a PopWarner Commissioner for 11 years, andhaving seen two children play youth sportson recreation and travel teams, I have hadthe opportunity to witness my share ofpoor sportsmanship by coaches, parents,and participants. I thought about some ofwhat I had observed.

I thought about coaches and players

who were not respectful to one anotherbefore, during, and after games. I thoughtabout excessive arguments with officialsand lack of respect for their authority. Ithought about the cursing and blaming ofothers and the refusal when the game wasover to give credit where credit was due. Ieven thought about a few times when I hadmade mistakes in the heat of battle, eitheras a player or as a coach, and I thoughtabout why good people with good inten-tions can get so caught up in the momentthat they sometimes forget about goodsportsmanship.

Then my mind shifted to the idea ofsportsmanship in the practice of law. Ibegan to think about the similaritiesbetween sports and the law and whetherthose similarities justify the ideal notion oflawyers as good sports.

The similarity between sports and thelaw

The most obvious connection betweensports and the law is the competitioninherent in both. Sports is filled with com-

petition. In fact, competition in sports isthe gasoline which fuels the games andwhich allows participants to excel.

Lawyers, like athletes, are highly moti-vated people who feed off the same form ofenergy—competition.

Competition for lawyers begins withthe law school application process and doesnot stop there. Would be lawyers fight toget into the best law schools, then theyfight as law students to be the best in theirclass, then they fight to get the best jobs,then they fight to get the best work, andthen they fight to move up within their lawfirms. Such competition in the practice oflaw is not limited, however, to the person-al goals of the lawyers.

Competition is just as obvious in thecourtroom as it is in the stadium. A playerwith a football will try to put it past adefender to score a touchdown. A lawyerwill try to put a point of law past his or heropponent to score a favorable decision.Lawyers are, plain and simple, competitivepeople, just like athletes and coaches, andthe law, like sports, brings out hard fought

competitive battles between lawyers.

The pressure to win in sports and thelaw

Athletes and coaches, at all levels, mustdeal with the societal fascination with win-ning. Most participants in sports are self-driven to win. This pressure and will towin, fueled by the competitive spirit, is nota bad thing. It encourages hard work andsacrifice and it may result in an athletebeing able to do things not thought to bephysically or mentally possible.

The flip side of the pressure to win insports is that it will sometimes cause ath-letes, coaches, and observers to do things inthe heat of the moment that they wouldnot do if they were thinking rationally.These same pressures exist in daily lawpractice.

Everyone loves a winner and law prac-tice is no different. Clients don’t hire losers.They want their lawyers to win.

How do I know this? Experience! I havenever (ever) been high fived by a client forlosing their case. In fact, just like in sports,when I have lost a case, my client (my“team owner”) has tended to be a bit surlywith me. Oh, the client will sometimes sayan encouraging word and suggest that I amstill part of the team, but inevitably, justlike in sports, the client is likely to questionmy play calling and may even quietlydecide to place me on waivers.

Fortunately, just like in sports, there arevictories in the law, and just like in sports,winning at law is great fun. There is no bet-ter feeling when battling for your client incourt than hearing the jury or judge rulefor your client, and no better feeling whenadvancing your client’s causes in negotia-tions and helping achieve their goals.When you win a case, just like in sports,the client is very happy. A win is a win is awin. Clients, like sports fans and sportsteam owners, will appreciate your work.They may even pay your bill.

The indifference to sportsmanship In sports, the average fan will engage in

a discussion about sportsmanship fromtime to time, and sometimes fans willapplaud good sportsmanship. More often,fans applaud good plays, not good sports-manship. During the Super Bowl, or theWorld Series, or the World Cup, where thehome team has a chance to be king of the

hill, most fans could not care less aboutsportsmanship. At that point, it is all aboutwinning.

In the practice of law, lawyers are giventhe responsibility of guarding their clients’money, time, and reputations. Each ofthese tangible and intangible items is veryvaluable to clients.

For most clients, their legal case also isvery personal. It is the Super Bowl of theirlimited legal experience and there is nodoubt that they want to win.Sportsmanship likely is at the bottom ofthe client’s list of things to be accom-plished.

And for the lawyer who makes a livingat the law, the pressure to win and achieveresults for the client is always present. Infact, winning has a lot to do with whethera lawyer will get another case, either fromthat client or from referrals by that client.

Winning even for the sake of winning isnot to be criticized. The will to win causespositive behavior, like advance preparationand hard work. Unfortunately, the pressureto win in both sports and the law hascaused the participants in both venues tobehave at times like poor sports and to dis-play an indifference to the concept ofsportsmanship.

One possible reason for the indifferenceto sportsmanship in the law lies not in thefact that winning is so important, but in thefact that sportsmanship is supposed to be,well, for sports. The law, on the other hand,is real, and the court cases and legal trans-actions that flow from the law, have realconsequences. Clients can win or lose muchin a legal contest. In sports, playing thegame can be fun, and losing is tough on theego, but except where athletes are paid fortheir efforts, sports are meant to be a game.

On the other hand, very few peoplewho go to see a lawyer will ever equate theexperience as being fun, or like a game. Itis stressful, full of pressure, and expensive.But fun and games? Not a chance.

Opinions vary on what constitutesgood and bad sportsmanship but youknow it when you see it

In sports, coaches, players, and specta-tors all have different opinions about whatconstitutes good and bad sportsmanship.

Unfortunately, some coaches do notteach good sportsmanship or do not dis-courage poor sportsmanship, either

because there are no hard and fast rules onthe subject or because good sportsmanshipis not important. Too often, in the age inwhich we live, it is better for an athlete toget the better of the opponent and let oth-ers know about it publicly than it is for theathlete to respect and battle the opponentwith good sportsmanship.

The famous quote from our SupremeCourt about “knowing pornography whenyou see it” applies equally to the doctrineof sportsmanship.

How often have we seen the athletemake a play, only to taunt his opponent?How often have we seen coaches and play-ers curse and blame officials? How oftenhave we seen trash talking among athletes?How often have we seen on-field fights,off-field arguments, and threatening ges-tures?

By the same token, haven’t we seenlawyers taunt opposing parties? Haven’t weseen lawyers show disrespect for theauthority of court officials? Haven’t weseen lawyers write unnecessarily, mean, andvicious letters? And, haven’t we also seenlawyers engage in verbal cat fights andpetty arguments?

On the other hand, we have been fortu-nate to witness good sportsmanship insports. We have witnessed athletes give ahelping hand to one another after playshave ended. We have seen players congrat-ulating one another after games and coach-es disagreeing respectfully with officialswhen they question calls. And, whengames have ended, we have seen athletesand coaches respectfully accepting the out-come without gloating as winners or blam-ing others as losers.

We also have seen the same type of goodconduct among lawyers. We have seenlawyers in hard-fought cases acting profes-sionally. We have seen lawyers who refuseto be drawn into the pettiness that is thehallmark of some forms of advocacy. Wehave seen lawyers who play by the spiritand not just the letter of the rules. And,even when the legal battles have beentough ones, we have seen lawyers extendprofessional courtesies, engage in coopera-tive behavior, and show respect to oppos-ing counsel.

Good sportsmanship in the law is notjust compliance with ethics rules

I don’t know of any ethics rule, written

16 SPRING 2006

or unwritten, that requires one lawyer toshake hands with another lawyer after acase or argument is over. In youth sportsleagues, however, one of the great unwrit-ten rules of the game is shaking hands afterthe game. Why? It is this simple act ofcivility that gives balance to the competi-tion.

Don’t get me wrong. I am not for thedevelopment of a rule requiring lawyers toshake hands or even a set of rules whichattempt to define what constitutes goodand bad sportsmanship among lawyers.First off, I don’t think it would work, nor isit possible. The essence of being a goodperson, like the essence of being a goodsport, cannot be captured with a few writ-ten rules. And, you can’t make someone bea good sport. A person has to buy into theidea.

The North Carolina Revised Rules ofProfessional Conduct tend to support thisapproach. In the Preamble to the Rules,Section 0.1 [12], there is a concluding sen-tence which sounds familiar. It states that itis “the lawyer’s obligation zealously to pro-

tect and pursue a client’s legitimate inter-ests, within the bounds of the law, whilemaintaining a professional, courteous, andcivil attitude toward all persons in the legalsystem.” It might just as easily have said, ina way that any sports fans would under-stand, “it is the lawyer’s obligation strenu-ously to compete to win on behalf of his orher client, within the framework of therules, while maintaining at all times goodsportsmanship toward all the participants.”

Don’t follow the lead of the misguid-ed coach or client

In the journey toward sportsmanship inthe law, lawyers have to be wary of undueinfluence by their clients. Here’s why.Clients will at times, like a misguidedcoach, urge the lawyer to behave in anunsportsmanlike manner.

Like the coach in one of the Karate Kidmovies who instructed his pupil to hurt theopponent to win the match, there will beclients who will coach their lawyer to showno measure of good manners in the legalprocess. Some lawyers believe that this is

the pathway to success. Others may not,but may relent to this pressure to lookgood in the eyes of the client.

Lawyers need to resist the urge to beguided by such foolish direction. Poorsportsmanship is not something thatshould be condoned.

Resist the urge to fight fire with fireHow often have we seen athletes penal-

ized or ejected from games for respondingto acts of poor sportsmanship with similaracts of bad behavior? Usually, a player fromone team will get a bit more physical thanthe rules allow with a player from anotherteam, and the offended player will thenstrike back in retaliation. Unfortunately,the one who strikes back is usually the onewho gets caught.

In the legal world, the punches that getthrown are usually the oral and writtenkind. Lawyers who are faced withunsportsmanlike behavior do lose theirtempers from time to time and say and dothings that they may later regret. However,while it is human nature to fight back with


a swift and emotional response, such con-duct simply brings the contest down to theinitiator’s level.

Some of the most respected athletes inthe games have been the ones who respond-ed to cheap shots with strength of characterand athletic ability rather than loud mouthsand clenched fists. Jackie Robinson is onesuch icon. Here was a guy, the first AfricanAmerican to play major league baseball andpossibly one of the greatest baseball playersof all time, who had every reason to fightfire with fire. The people he played against,and even some of his own teammates, dis-played the worst of sportsmanship towardhim when all he wanted to do was play thegame of baseball. They cursed him, calledhim names, cleated him when he stole bases,threw at his head in the batter’s box, andshowed contempt for him only because ofhis race. He would admit years later that thehardest thing for him to do was to sit thereand take it. How he would have loved to usehis brute strength to knock a few of thosefellows out. Instead, he put all his energyinto getting base hits, stealing bases, makingplays, and hitting home runs. Eventually,

the detractors realized their tactics were ofno effect and that he was, after all, a darngood ball player.

Lawyers are also fighters, making it hardto walk away from the sucker punch. Butbeing a good sport sometimes means hav-ing the presence of mind and the ability tofight back in a different way. It also meansputting your heart, your mind, and yourdrive into winning the contest the rightway, like Jackie Robinson and others likehim.

Lawyers can be leaders in promotinggood sportsmanship

Lawyers have been the brunt of jokes andpublic criticism to the point that many inthe public would question whether lawyershave the ability to be good sports, much lessleaders in promoting good sportsmanship.But there is more to lawyers than what isreported in public opinion polls. As the oldstory goes, as told to me by one of my lawschool professors, while the doctors of thepast were treating the sick with leaches, thelawyers of the past were spending their timewriting a Constitution that would live for

more than 200 years and be the guidingforce for the rule of law in this county.

Lawyers can continue their tradition ofbeing leaders by promoting the unwrittenrule of law of good sportsmanship. Lawyerscan do this in sports and in the practice oflaw.

This is true because lawyers serve not justtheir clients but their communities. Lawyersplay in athletic contests. Lawyers are parentsand coaches of athletes. Communities arefilled with athletes who one day will be lead-ers and some may even aspire to be lawyers.

Whenever a lawyer practices goodsportsmanship in the profession, andencourages others to do so in sports and inthe community, he or she makes an impor-tant statement. That statement is that civili-ty and respect matter, whether on the fieldof play or in the field of law.

Sportsmanship mattersI am proud to report that I have been the

beneficiary of good sportsmanship on theplaying field and in the practice of law andthat I have tried to practice good sports-manship in both, although not always assuccessfully as I would like. Good sports-manship is something that is worth workinghard to achieve and to get right, in bothsports and in the law. Without question,lawyers should practice hard and strive towin their cases, but just like in sports, wheresportsmanship is encouraged but not alwaysachieved, lawyers should remember to playby the unwritten rule of good sportsman-ship.

Lawyers should not behave like thecoaches on the sideline who should knowbetter, or the emotional athlete who lets thecompetitive moment get the best of her,even if others are urging such behavior. Alittle bit of civility, a dose of humility, arespectful tone, a professional demeanor,and a touch of dignity may be just what isneeded during and after giving it your all onbehalf of your client.

Good sportsmanship does matter. Ifpracticed by lawyers, it may just make a dif-ference, for lawyers, for clients, for the com-munity, for sports and for the legal profes-sion.

Landis Wade is an employment lawyer,commercial litigator, and sometimes arbitratorand mediator with Helms Mulliss & Wicker,PLLC, in its Charlotte office.

18 SPRING 2006

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Letters from the Woods—A BookReview and Excerpt

R E V I E W E D B Y D A N A A N D S A R A H R O S S , B O O K W R I T T E N B Y M I K E H U R L E Y

ReviewBy Dana and Sarah Ross

Michael Hurley, in his latest book Lettersfrom the Woods, explores what it means to bean authentic person. With homage to philos-ophy and a backdrop of wilderness, theauthor shares an intimate portrait as he growsfrom a difficult boyhood into an adult worldas a loving husband, devoted father, and suc-cessful attorney. Hurley’s hard work, dedica-tion to family and friends, and his strong rela-tionship with God provide a solid foundationupon which he boldly attempts to redefinehow one can uniquely fit within, and con-tribute to, society. Time and time again, heboards a boat, embarks on a quest, and dili-gently pushes himself physically and mental-ly to pursue the secret of life. Eventually, heforges a comfortable alliance with biblicalteaching where self-rewards are derived froma faith in God and serving others.

The author chronicles a series of decisionsthat significantly change his professional andpersonal life. As soon as the author achievessecure footing as an attorney he catapultshimself freestyle to yet another uncharteredshore. In one leap of faith he leaves a promi-nent law firm to open a private practice withhis wife. A pattern of taking calculated risksallows this fiercely independent author to seeanew, and wonder aloud, where the road tothe American Dream leads us and leaves us.

Experience and accumulated wisdomallow Hurley to evolve from an absolutistdoctrine to self-reflection and a realm of openobservation. His window to understandinghimself and the world is found in the shapeof a canoe. Using wilderness canoeing as ametaphor for an inward journey, Hurley doc-

uments a personal odyssey as he paddles,portages, fishes, and camps. His honest andintimate dialog is clear and straightforward,yet his words encourage each reader touniquely relate to the broader questions.

Letters from the Woods gives us an openinvitation to seriously contemplate what ismost important to each of us, and encour-ages us to thoughtfully recalibrate our pri-orities. You don’t need to paddle a canoe tounderstand Hurley’s discourse. He encour-ages us to pause and think, refresh ourmind and body, look beyond ourselves,spend time with family and friends, and to

get out there and go fishing.

Excerpt from Letters from the WoodsLetters from the Woods collects the “slice-

of-life” essays that Hurley wrote for a canoeingjournal published between 1995 and 2004 for

Above: The author’s son Kip searches anisland in Canada’s Algonquin Provincial Parkfor blueberries.

Right: The author took this photograph offellow travelers at dawn, after being wind-bound in Thoreau’s camp on ChamberlainLake in Maine for two days.

20 SPRING 2006

subscribers in 48 states and Canada. In addi-tion to these essays, Hurley wrote detailed trave-logues of his trips on remote and nearby riversand lakes. The journal also featured photogra-phy, hand-drawn maps, and illustrations. Thefollowing essay and photographs from the jour-nal appear in the book.

Law and WildernessSummer 2002

As I have related in the story about Mainethat begins on the next page of this journal,the writings of Henry David Thoreau had aninfluence on my life that began early and last-ed long. He sounded the clarion call to sim-plicity long before the Kennedys gave uscasual chic. Minimalism was his watchworddecades before that concept came to symbol-ize a hip design trend in upscale furniture andart—purchased mostly by people with non-minimalist incomes and lifestyles.

Simplicity and minimalism were for me,in my growing years, mottoes of conven-ience. It is easy to be simplistic and a mini-malist when one hasn’t the means to be oth-erwise. But for all that Thoreau so eloquent-ly tried to tell us about those virtues, I wasmore struck by Thoreau himself and theethos of the intellectual rebel that he seemedto embody. His life, more so as I imagined itthan likely as he lived it, seemed so defiantlyunafraid of convention. And convention, to ateenage boy, is the Lord High Master to befeared and obeyed above all else. To know thiswe have only to recall our darkest fears ofwearing the wrong outfit to the dance, gettingthe wrong haircut before going back to

school, andsaying some-thing stupidin front of thewhole class.T h o r e a u ’squiet worldon WaldenPond seemedto shrug all ofthat off, andthe notionthat someonecould live that way—with only his thoughtsand principles to condemn or acquit him—was intoxicating to me as I contemplated thepower in my hands to shape my own life.

The ability to shape one’s life is, of course,the fleeting illusion of youth and the briefluxury of old age. Soon enough we are over-taken by events that shape us and our livesuntil the mold hardens round about us,immovable and unyielding. The tyranny ofthe human condition and our need for food,clothing, and comfort lead us onward.Decisions are made. Choices are foregone.Doors close softly behind us. Accidents ofgeography and genetics work their quietinfluence. Soon the trail has narrowedbeneath our boots, and before we know it, wecan only gaze upon the distant mountains towhich other paths less traveled might haveled. It was there, on those distant peaks,where Thoreau seemed to stand and beckonto me as an idealistic student reading thesewords:

Let us consider the way in which wespend our lives. . . . I foresee that if my

wants should be much increased, thelabor required to supply them wouldbecome a drudgery. If I should sell bothmy forenoons and afternoons to society, asmost appear to do, I am sure that for methere would be nothing left worth livingfor. I trust that I shall never thus sell mybirthright for a mess of pottage. I wish tosuggest that a man may be very industri-ous, and yet not spend his time well.There is no more fatal blunderer than hewho consumes the greater part of his lifegetting his living. These are lofty ideals, to be sure. What I

failed to see as a younger man, though, was acertain hypocrisy in Thoreau’s words thatbecame clearer to me as a husband and father.Thoreau’s own father had sold pencils fromhis home to support young Henry’s ascent toHarvard and beyond—and I dare say he did-n’t do it for the love of wood and lead. He didit for the love of Henry, as do we all, in ourdaily labors, for the love of the children andfamilies whom we are privileged to call ourburden. Still, I am not prepared even at this

Left: The author’s daughter Caroline inspects a lilypad in the Adirondacks.

Below: The author prepares to leave camp on theMoose River in Maine.

jaded age to toss Thoreau onto the ash heapof youthful illusions. What Thoreau tried toexpress was a sentiment more purely distilledin the famous essay of his contemporary andfellow-philosopher, Ralph Waldo Emerson,entitled Self Reliance:

There is a time in every man’s educationwhen he arrives at the conviction thatenvy is ignorance; that imitation is sui-cide; that he must take himself for betteror worse as his portion; that though thewide universe is full of good, no kernel ofnourishing corn can come to him butthrough his toil bestowed on that plot ofground which is given to him to till. Thepower which resides in him is new innature, and none but he knows what thatis which he can do, nor does he knowuntil he has tried. As for me, growing up in an alcoholic

family on the outskirts of normalcy, the plotof ground I was given to till, as it were,seemed covered in brambles. There was neverenough money—or any money. I harboredthis deep-seated suspicion that the other guyreally was smarter than I, and that unlike him,I would become Thoreau’s “fatal blunderer,”who sells his birthright for a pottage. It wasnot until I had blundered my way throughtwo colleges, abandoned two majors, andturned four years of undergraduate study intofive that the lights went on.

In 1981 I had landed, most improbably,with a wife and a U-Haul van at a Jesuit uni-versity in St. Louis to study law. Terrified andbroke, I applied myself. Astonished, I suc-ceeded in small ways where I had been accus-

tomed to failure.Encouraged andemboldened ,with the supportof a wife wholoved andbelieved in me, Iapplied myselfharder still.Doors opened,and the pathbeneath myboots widened abit.

That goldenmoment ofepiphany aboutlife’s limitlesspos s ib i l i t i e s ,which comes to

most of us in some form or fashion, came tome in March 1983. I was approaching thepodium of the law school courtroom. Allaround me were seated assorted dignitaries ofthe bench and bar and academe as well asfamily members—including my own moth-er—who had traveled great distances to wit-ness the occasion. There were four of us, mypartner Brian Konzen and I and our twoopponents, nervously shuffling papers at thecounsel tables. Law school faculty memberswhose sandal straps we students were notworthy to unfasten sat in the audience to wit-ness the spectacle—as if any of the four of uscould possibly have anything important tosay to them. I had stolen away, hours before,to a classroom in the library just to collect mythoughts, alone, and try to bring the enormi-ty of what I was about to face down to size. Ihad never won anything before. I had neverbeen in a position to compete for the prize.Before this night, dozens of my fellow stu-dents—many from prominent, successfulfamilies and exclusive, private schools—hadreached for and fallen short of this goal.Gradually, round by winning round, I haddispelled my suspicion that we had survivedeach preceding contest only by some mistakeof good fortune. I was not even close, after all,to the top of my class. Were it not for anunexpected friend and unfailing ally I hadencountered along the way, I might havecrumpled at the podium when JusticeWilliam Rehnquist of the United StatesSupreme Court finally called upon me todeliver the respondent’s argument. Thatfriend and ally is the law. It was then and has

been lo these many years a marvel to me, afearsome tool, and a thing of beauty in itsown right. It is the great leveler of kings andcommoners, and on that night in St. Louis itelevated a nervous young man from thebrambles of his upbringing to the pinnacle ofa legal education.

In the years since, I have taken the mem-ory of our victory in that competition intodozens of other courtrooms, before themightiest of opponents, before judges whowielded terrible, awesome power. And ineach of these arenas, the miracle of ourdemocracy—which is to say the rule of law,not men—has given me the confidence ofDavid before Goliath. This is how I have cho-sen to spend my life, by and large. Althoughit has not been the career of contemplativesolitude to which Thoreau beckoned me, atWalden Pond, it has had such moments. Infact, I have come to appreciate in my journeythrough the law that the wilderness is, like-wise, a leveler of men.

The wilderness respects no title, fears noenemy, and grants no special privilege. To theunwary or unprepared it is unflinching andunforgiving. It offers no remedy or reliefbeyond what the laws of nature will allow.But to any mother’s son who will apply him-self to learn its precepts, great rewards await.You can lose your life in the woods if you arecareless, but you can find life’s meaning there,too. If you will but study and plan, map yourcourse, and prepare for the journey, you canmake your way through any forest of life ornature, no matter what difficulties or delaysyou have encountered on your journey thusfar. Remember to scout the rapids and carrythe rough ones. It is best to rise early and findcamp before twilight. Gather your firewoodbefore the rain comes, and share it with thosewho have none. Pitch your tent on highground, and leave each camp a little betterthan you found it. These are the laws of thewilderness. These are the laws of life, as well.They are one and the same, and I have beenprivileged to measure myself against them.

Michael C. Hurley is a partner at Yates,McLamb & Weyher, LLP, in Raleigh, where hiswife Julie is of counsel. They attended theUniversity of Maryland at College Park andSaint Louis University School of Law togetherand practiced for eight years in Texas beforemoving to North Carolina in 1992. They havetwo teenage children and will celebrate their25th wedding anniversary this year.


The author’s son waits for dinner in camp on a Canadian lake.

22 SPRING 2006

North Carolina Supreme CourtIt does not appear that the North

Carolina Supreme Court decided any casesspecifically related to medical malpracticeactions in 2005. However, as discussedbelow, the Court did grant review in a mal-practice case involving expert qualificationsthat may lead to an important decision in2006. Barham v. Hawk, 165 NC App. 708,600 SE2d 1 (2004), review allowed 59 N.C.410, 612 S.E.2d 316 (NC April 16, 2005).

North Carolina Court of Appeals

I. Expert TestimonyThe court of appeals reviewed a number

of cases in 2005 that dealt with expert testi-mony in medical malpractice cases. Thesecases included the admissibility of experttestimony pursuant to N.C.G.S. §90-21.12, cross-examination issues, and causa-tion issues.

N.C.G.S. § 90-21.12.N.C.G.S. § 90-21.12 has become a fre-

quent source of opinions in recent years.The statute provides that, in a medical mal-practice action, no expert may testify on thestandard of care unless he or she is familiarwith the standards in the “same or similarcommunity” where the cause of actionarose. The cases have generally rejected anational standard of care for NorthCarolina, and require experts to have some

familiarity with the community where thealleged malpractice took place.

Billings v. Rosenstein __ N.C.App. __,619 S.E.2d 922 (2005), was a WilkesCounty action arising out of treatment ren-dered to Jennie Lynn Billings in 2003.According to the Complaint, Ms. Billingssuffered a stroke as a result of an allegedlyundiagnosed eclampsia.

Plaintiffs retained Peter Kaplan, MD, aneurologist practicing in Maryland and aprofessor at Johns Hopkins University, as anexpert on the standard of care. Dr. Kaplantestified that although he did not currentlymaintain an active practice in NorthCarolina, he had worked at DukeUniversity Medical Center for three years

NC Med Mal—A Year in ReviewB Y M A R K B . C A N E P A

This article reviews North Carolina case law

developments in 2005 that are of importance to

attorneys handling medical malpractice cases.

The discussion analyzes malpractice cases

addressing peer review, expert testimony, res ipsa loquitor, nursing malprac-

tice, recovery of costs, and other issues frequently encountered in malpractice

cases. Most, if not all, of the cases are from the court of appeals, although at

least one malpractice case of importance was granted review in the Supreme

Court.

during his residency and fellowship. He alsohad a license to practice medicine in thestate of North Carolina. However, he hadnot practiced here in more than 15 years.

During his deposition, Dr. Kaplan testi-fied that he was familiar with the standardof care in Wilkes County. However, headmitted that he had never been to the facil-ity where the alleged malpractice took place.

Following the deposition of Dr. Kaplan,the defendant moved for summary judg-ment on the grounds that Dr. Kaplan wasnot qualified pursuant to N.C.G.S. § 90-21.12. The trial court found that, althoughit is not necessary for an expert witness tohave actually practiced in the same commu-nity as the defendant, he or she mustdemonstrate that they are familiar with thatcommunity or the standard of care of simi-lar communities. The motion was granted,leaving Plaintiffs without an expert.

The court of appeals reversed. The courtobserved that Plaintiff ’s expert not only hadlarge portions of his medical training inNorth Carolina, but he also was licensedhere and had worked in Durham and inFayetteville. The court found that therecord disclosed that Dr. Kaplan had lec-tured in North Carolina and he had testi-fied that he was familiar with the standardof care for a neurologist in Wilkes Countyand that this familiarity was based not onlyon his own experience, but also on thedemographic data from Wilkes County. Assuch, he was qualified an expert underN.C.G.S. § 90-21.12.

The Billings case is significant in that ithighlights the difficulty faced by trial judgesand counsel trying to determine the mean-ing of the “same or similar community” lan-guage of the statute. The case is also impor-tant because it continues to recognize therecent trend by the court to allow experts touse demographic data to help them becomefamiliar with communities in which theyhave not actually practiced. See generallyPitts v. Nash Day Hospital, Inc., 167N.C.App. 194, 655 S.E.2d 154 (2004),Coffman V. Roberson, 153 N.C.App. 618,571 S.E.2d 259 (2002).

N.C.G.S. § 90-21.12 was also the sub-ject of at least one unpublished opinion,decided earlier in 2005. Ramirez v. Little,609 S.E.2d 499 (Table) was a case fromRandolph County arising out of the deathof an infant in February of 2000. Thedefendant, a family physician, had diag-

nosed the child with a minor stomach infec-tion and had administered antibiotics that,although it is not clear from the court’sopinion, apparently led to some type ofconvulsions or allergic reaction.

At the close of Plaintiff ’s case, Defendantmoved for a directed verdict. Defense coun-sel argued that Plaintiff ’s expert, Dr. PeterCurtis, was not familiar with the standard ofcare in Randolph County, as required byN.C.G.S. § 90-21.12. The trial judge grant-ed the directed verdict.

The appellate court affirmed. The courtnoted that the purpose of N.C.G.S. § 90-21.12 was to “avoid the adoption of anational or regional standard of care forhealth care providers” and that in this case,there was no testimony in the record thatindicated that Dr. Curtis was familiar withthe same or similar community requirementof the statute. “Simply put,” observed thecourt, “Dr. Curtis never related the term‘standard of care’ to the standards of prac-tice that applied to family physicians inRandleman, North Carolina, or similarcommunities in February of 2000.”

Does the Ramirez decision break anynew ground? Probably not, but it does re-emphasize the importance of making surethat your retained expert understands thatalthough they may offer testimony on anational standard of care, they must testifyon the local community standard in orderto get their opinions to the jury.

One additional case, actually decided in2004, is also worth following on this issue:Barham v. Hawk, 165 N.C.App. 708, 600S.E.2d 1 (2004).

Barham was a medical malpractice casefiled in Polk County. At trial, the defendantcalled one of the decedent’s treating physi-cians, Dr. Daniel Cerenko of Atlanta, to tes-tify not only regarding his treatment of thepatient in Georgia, but also on the NorthCarolina standard of care.

Plaintiffs objected to Dr. Cerenko’s testi-fying on the standard of care, based on §90-21.12. Both parties then conducted voirdire. Clearly, Dr. Cerenko was not familiarwith Hendersonville. However, defensecounsel posed hypothetical questions to Dr.Cerenko in which he asked the expert toassume facts relating to the defendant’s care,and to also assume facts aboutHendersonville itself. After assuming thesefacts, Dr. Cerenko said that he was familiarwith the standard of care in the defendant’s

community. Barham v Hawk, 165 N.C.App. 708, 600 S.E.2d 1, 4-5.

The trial judge rejected this approach,holding that the defense expert had not sat-isfied the requirements of § 90-21.12. Theexpert could testify regarding his own careand treatment, held the court, but not onthe standard of care in North Carolina.

The court of appeals agreed. The courtnoted that Dr. Cerenko admitted that he“knew nothing about Hendersonville, hadno idea of the size of the community, knewnothing about the hospital inHendersonville or its resources, and had noknowledge about the physicians practicingin that area.” The only information he hadwas from the hypotheticals posed bydefense counsel and this was not enough:“This testimony establishes that Dr.Cerenko neither had any knowledge aboutthe standard of care in Hendersonvile norhad any knowledge of the resources avail-able in Hendersonville sufficient to be ableto testify about the standard of care in sim-ilar communities.” Barham v. Hawk, 165N.C. App. 708, 600 S.E.2d 1, 5-6.

In 2005, the North Carolina SupremeCourt granted review. So it is likely that theCourt will tackle at least some of the prob-lems posed by the § 90-21.12 in the nearfuture. Barham v. Hawk, 165 NC App.708, 600 SE2d 1 (2004), review allowed 59N.C. 410, 612 S.E.2d 316 (NC April 16,2005).

Cross-examination of expertsIs it proper for a trial judge to preclude

defense counsel from cross-examiningPlaintiff ’s expert on that expert’s opinionsregarding the standard of care of a partywho has been dismissed from the case? Theanswer to that question is probably no, butit happens. And when it does, there will beno reversal where other experts at trial testi-fy to the very same thing.

In Boykin v. Kim, 2005 WL 2848443,the issue on appeal was whether the trialcourt had erred in blocking cross-examina-tion of Plaintiff ’s expert on the subject ofwhether a former co-defendant (who hadbeen dismissed) fell below the standard ofcare.

In Boykin, two physicians saw Plaintiff ’sdecedent over a period of several monthsduring which time she complained ofsymptoms including hearing loss, nasalproblems, and a sore throat with hoarseness.According to the court’s opinion, the physi-

24 SPRING 2006

cians had only sporadic contact with eachother, although both were prescribingsteroids for the patient’s condition. Afterseveral months of treatment, the decedentcollapsed suddenly and died from exsan-guination related to pulmonary tuberculo-sis. The family alleged that the physicianshad been negligent in failing to detect thetuberculosis.

One of the physicians settled the claimagainst him. The action then proceededagainst the defendant, Dr. Kim. The juryreturned a verdict in favor of the plaintiffs.

On appeal, the defendant contended,among other things, that defense counselhad been improperly precluded from cross-examining one of plaintiff ’s experts whohad testified during discovery that the dis-missed doctor had also failed to meet thestandard of care.

The court of appeals affirmed, but it didso only after stating that the cross-examina-tion of the expert was relevant (to causa-tion) and probably should have beenallowed. But the court found that any errorwas harmless, since the judge had allowedcounsel to cross-examine other expert wit-nesses on the same subject. The bottom linefrom Boykin on this issue: At some point atrial judge may restrict cumulative testimo-ny, and unless counsel can demonstrateprejudice it is not likely the judge’s rulingwill be reversed on appeal.

II. Res Ipsa LoquitorThere were two cases involving the

application of res ipsa loquitor in the con-text of a medical malpractice case decidedby the court of appeals in 2005. Both caseswere instructive in that they reiterated theview that in North Carolina res ipsaloquitor is to be applied sparingly in med-ical malpractice cases.

The first case was Howie v. Walsh, ___N.C.App. ___, 609 S.E.2d 249 (2005), acase involving a patient who sustained afractured jaw during the course of an extrac-tion of a wisdom tooth in MecklenburgCounty.

In March of 1999, plaintiff ’s jaw wasfractured when the defendant, a licensedgeneral dentist, was attempting to extractplaintiff ’s lower left wisdom tooth.Plaintiff ’s tooth was 80% to 90% impacted.Defendant testified that he had removed aportion of the plaintiff ’s tooth without inci-dent, but when he attempted to remove the

second section of the tooth, he heard a snapand “knew plaintiff ’s jaw had fractured.”The patient sustained nerve damage and acompound fracture that required additionalsurgery to repair. She subsequently filed amalpractice action against the dentist.

At trial, plaintiff ’s experts testified thatthe plaintiff ’s jaw was not susceptible tofracture and that the use of force to cause acompound fracture had to be significant.Plaintiff ’s expert also testified, among otherthings, that it would have been almostimpossible for the fracture to occur unlessthere was excessive force. Defendant, on theother hand, testified that he was not usingexcessive force and that he was surprisedwhen the jaw fractured during the course ofthe extraction.

The trial judge allowed the jury to con-sider the application of res ipsa loquitor tothe case, over the defendant’s objection. Thejury subsequently found that, based on thedoctrine of res ipsa loquitor, there was neg-ligence, and awarded $300,000. The courtof appeals reversed.

The court noted that the application ofres ipsa loquitor in medical malpracticeactions has resulted in “what our SupremeCourt has characterized as a somewhatrestrictive application of the doctrine.” Inorder for the doctrine to apply in a mal-practice case, Plaintiff must not only showthat the injury resulted from Defendant’snegligent act, but also, without the assis-tance of expert testimony, that the injurywas of a type not typically occurring inabsence of some negligence by the defen-dant.

The court observed that although alayperson might be able to infer that thefracture resulted from the application of

force by the defendant, the jury would lacka basis upon which they could determinethat the force was excessive or improper,without the assistance of expert testimony.As such, the application of res ipsa loquitorunder these circumstances was improper.The court noted that trial courts shouldremain vigilant and cautious about provid-ing res ipsa loquitor as an option for liabili-ty in malpractice cases, other than in thosecases where it has been expressly approved.

The court of appeals took up res ipsaloquitor in another malpractice case severalmonths later, in the unpublished opinion ofMoore v. Gaston Memorial Hospital, 616S.E.2d 692 (Table)(2005).

In Moore, Plaintiff was admitted toGaston Memorial Hospital in 2000 for anendoscopic examination related to treat-ment of a gastroenterological condition.Plaintiff subsequently filed a complaintagainst the hospital and the surgeon whoperformed the procedure, alleging thatDefendants negligently perforatedPlaintiff ’s esophagus and also administereda toxic dose of the antibiotic gentamycin.

To support her claims, Plaintiff allegednegligence under the doctrine of res ipsaloquitor in her complaint. Defendant filed amotion to dismiss, claiming that Plaintifffailed to allege in her complaint, pursuantto Rule 9(j), that she had an expert qualifiedto testify on that aspect of her claim. Thetrial court granted Defendant’s motion todismiss.

On appeal, Plaintiff argued that res ipsaloquitor supported her claim that the perfo-ration was the result of Defendants’ negli-gence. As such, she claimed, it was not nec-essary for her to include in her complaintthe usual allegations that she had an expert


who was prepared to testify as to such neg-ligence.

The appellate court, however, rejectedher claim. Citing Howie, the court repeatedthe general rule that res ipsa loquitor shouldbe applied “restrictively” in malpracticecases. In this case, continued the court, the“average juror would not, based on thatjuror’s common knowledge or experience,be able to infer whether the perforation ofplaintiff ’s esophagus was the result of a neg-ligent act.” Therefore, held the court,Plaintiff should have included the allega-tions required by Rule 9(j) with respect toexpert testimony.

A related issue discussed by the court inMoore is also worth discussing here. In addi-tion to her allegations based on res ipsaloquitor, Plaintiff also had a general negli-gence claim that was supported by a phar-maceutical expert who was included to sat-isfy the pleading requirements of Rule 9(j).However, the defendant was a gastroen-terologist, said the court. As such, Plaintiff ’sclaim was insufficient to satisfy Rule 9(j).

III. Nursing MalpracticeDoes a nurse in North Carolina have a

legal duty to challenge physician’s orders? Ifso, under what circumstances should such achallenge be brought? And if the nurse failsto challenge the doctor, and the patient issubsequently harmed, will the nursebecome a defendant in a malpractice action?

These questions and others wereanswered by the court in Daniels v. DurhamCty. Hosp., ___ N.C.App. ___. 615 S.E.2d60 (2005).

Daniels arose out of a labor and deliveryat Durham County Hospital. According tothe court’s opinion, the infant’s mother wasadmitted to the hospital for induction oflabor due to an elevated blood pressure. Anexperienced labor and delivery nurse at thehospital was assigned to assist her physicianin monitoring the patient during labor.

After several hours of labor, a decisionwas made by the physician to perform amid-forceps delivery in which the doctorrotated the baby 180° to the proper posi-tion, after which the child was delivered.However, upon delivery, the child wasnoted to be unresponsive, blue in color, andnot breathing. The child was subsequentlydiagnosed with a cervical spine injury anddied.

The parents of the child filed suit alleg-

ing, among other things, that the hospitalwas liable for negligence because the laborand delivery nurse had failed to oppose thedoctor’s decision to perform a mid-forcepsdelivery. Specifically, the family contendedthat it was below the standard of care for thephysician to have attempted such a deliveryand that the nurses “should have challengedthe doctor’s decision, and, if unsuccessful inchanging that decision, should have refusedto participate as part of the [patient’s] laborand delivery team.”

The trial court disagreed. The judgefound that even if the doctor had been neg-ligent, there was simply no evidence that hisnegligence was “so obvious” as to requirethat the nurses refuse to obey the doctor’sorders, or challenge his treatment.

On appeal, the judge’s decision wasaffirmed. The appellate justices observedthat in North Carolina there is a long-standing rule that provides that a nurse maynot be held liable for obeying a physician’sorder “unless such order was so obviouslynegligent as to lead any reasonable person toanticipate that substantial injury wouldresult to the patient” if the order were car-ried out. The court went on to say that evenin the world of modern medicine, certainlegal concepts related to the relationshipbetween nurses and doctors remain thesame. Physicians are solely responsible forthe diagnosis and treatment of patients.Nurses, on the other hand, are not expectedto be experts in the technique or diagnosisor the mechanics of treatment. “While anurse may disobey the instructions of aphysician where those instructions are obvi-ously wrong and will result in harm to thepatient,” observed the court, “the duty todisobey does not extend to situations wherethere is a difference of medical opinion.” Inso holding, the court properly refused toopen the door to a plethora of suits thatwould be brought against nursing staffwhenever a physician was named as a defen-dant in a malpractice case.

IV. Peer ReviewAre there limits to the peer review pro-

tection granted to physicians by the legisla-ture in N.C.G.S. § 90-21.22? The answerto that question is yes, at least according toArmstrong v. Barnes, ___N.C.App. ___, 614S.E.2d 371 (2005), a case that arose out ofCatawba County.

N.C.G.S. § 90-21.22, which is entitled

“Peer Review Agreements,” specifically pro-vides a measure of confidentiality protec-tion for medical personnel who attend peerreview meetings, and for doctors who par-ticipate in impaired physicians programs.The statute protects those who are involvedin these meetings from being forced to dis-close the contents of such meetings. Therationale behind the rule is simple. Byaffording the protection of confidentialityto those who conduct peer review or overseeimpaired physician health programs, thelegislature encouraged participants to dotheir work without fear of lawsuits or ques-tioning by malpractice attorneys.

In Armstrong, Plaintiff sued severaldefendants for alleged negligence in con-nection with the delivery of Plaintiff ’s childin 2000. The baby was delivered via cae-sarean section and was diagnosed with braindamage.

One of the defendants was the OB/GYNwho had managed the labor and delivery.According to the court’s opinion, this physi-cian had a history of drug abuse that datedback to the 1980s. However, the doctor hassubsequently enrolled in, and successfullycompleted, a drug treatment programthrough the North Carolina Medical Board.

During the course of the malpracticecase, Plaintiff ’s attorney sought to obtaininformation related to Defendant’s partici-pation in the North Carolina Physician’sHealth Program. At Defendant’s deposi-tion, his attorney objected to any question-ing on the subject of the physician’s priordrug use, and instructed his client not toanswer on the grounds that it was privi-leged. When the trial court failed to enteran order protecting the doctor from disclos-ing these details, his attorney went to thecourt of appeals for help.

The court of appeals affirmed the trialjudge’s decision. The court said that,although the doctor could not be compelledto reveal the details of his participation inthe program, he must answer questionsrelated to the underlying drug use. Thecourt would not allow a physician “to usethe program as a shield to escape liability forhis negligence by foreclosing any meaning-ful discovery by an injured party.” In otherwords, if Plaintiff ’s attorney asks the physi-cian about his alleged drug use, the doctormust answer this question. The decisiondoes not, therefore, cut into the traditionalprotections afforded by peer review. But it

26 SPRING 2006

does serve as a marker of sorts for the limitsof that protection.

The court also addressed peer reviewlater in the year in its second opinion(rehearing) of Miller v. Forsythe Mem’lHosp.,___ N.C.App. ___, ___ S.E.2d ___,(2005), published on November 15, 2005.This decision is significant in that it pro-vides guidance to counsel attempting toobtain privileged materials during thecourse of discovery. The case also warns thatfailure to adhere to these guidelines willresult in a loss of an appealable issue aftertrial.

In Miller, Defendants provided Plaintiffswith a “privilege log” describing documentsthey contended were protected by the peerreview privilege. Plaintiffs sought access tothe documents, claiming that they were dis-coverable. The trial court denied Plaintiff ’smotion to compel, and granted Defendant’sprotective order.

On appeal, the trial judge’s rulings wereaffirmed. The court of appeals found thatthere was simply nothing in the recordbefore it that would enable the court tomake an informed ruling that the sought-after records were, or were not, discover-able. The court observed that not only hadcounsel failed to raise the issue at trial, butalso Plaintiffs should have—or couldhave—asked the trial court for an in-cam-era inspection of the records and then pre-served those records, under seal, for anysubsequent appeal. Without access to thedisputed documents, said the court, anyopinion on their admissibility or allegedprejudice to Plaintiffs would be purely spec-ulation.

On a related issue, the court in Millerheld that under the then-existing state ofthe law, Plaintiffs were obligated to raise theissue of peer review at trial, even where thetrial judge had granted Defendant’s motionin limine to prohibit such evidence.However, the court also observed that effec-tive October 1, 2003, “once the courtmakes a definitive ruling on the recordadmitting or excluding evidence, either ator before trial, a party need not renew anobjection or offer of proof to preserve aclaim of error for appeal.” Since the casebefore it involved a ruling before that date,the old rule applied.

VI. Directed Verdict/CausationThere were at least two appellate court

opinions in 2005 involving directed verdictsin the medical malpractice setting. In onecase, the directed verdict granted by the trialcourt was reversed. In the other case, theverdict was upheld. Both cases reiterate theimportance of understanding Plaintiff ’sminimal, but not insignificant, burden ofproof.

Pope v. Cumberland Cty. Hosp.,___N.C.___. ___S.E.2d___(2005) aroseout of a labor and delivery at the countyhospital in 1999. The infant child was bornwith brain damage following an emergencycesarean-section. Plaintiffs subsequentlyfiled their action against the hospital andthe delivering physician.

At trial, the evidence indicated that thenewborn needed a blood transfusion imme-diately after birth. However, the transfusionwas delayed even though a team of neonatalnurse practitioners was called to assist.Counsel for the defendant hospital subse-quently presented expert testimony that thealleged failure of the team of nurse practi-tioners to properly treat the infant with animmediate transfusion was an interveningcause of injury, insulating the labor anddelivery nurses from any liability for theirown alleged negligence.

Plaintiffs countered this argument withexpert testimony at trial that not only hadthe labor and delivery nurses been a cause ofthe initial bleeding (through repeatedattempts to insert a fetal scalp electrode),but they had also failed to report the exces-sive blood loss to the neonatal team whenthey arrived. The judge granted a directedverdict in favor of the physician and whatappeared to be a partial directed verdict, onthe issue of causation, on some of the claimsagainst the hospital. The jury could notreach a verdict on the remaining claims, anda mistrial was declared.

On appeal, Plaintiff claimed that thetrial court erred in granting the directed ver-dict on causation. The court of appealsagreed: While acknowledging thatDefendant had presented credible experttestimony to support their causationdefense, the appellate court reminded theparties that on a directed verdict motion,the trial court “must review the evidence inthe light most favorable to plaintiffs anddeny the motion for directed verdict if thereis more than a scintilla of evidence” to sup-port the plaintiff ’s claim. Here, continuedthe court, Plaintiffs had presented evidence

that any alleged delay by the neonatal teamto order blood was a foreseeable result of thefailure of the labor and delivery nurses toreport the excessive bleeding. As such, theissue should have gone to the jury.

Of course, in the right setting a directedverdict on causation is appropriate in amedical malpractice case.

Norman v. Branner, 2005 WL 1669128(2005) was an unpublished case fromMecklenburg County. In Norman, Plaintiffclaimed that the defendants were negligentin their failure to remove a foreign objectthat had become lodged in Plaintiff ’s righteye. Plaintiff subsequently lost the eye.

At trial, Plaintiff presented the experttestimony of Dr. Katz. Although critical ofthe care and treatment rendered by thedefendants, Dr. Katz acknowledged oncross-examination that even had the appro-priate treatment been rendered, the plaintiffmight still have lost the eye. Defendantmoved for a directed verdict on the issue ofcausation, which was granted by the trialjudge.

On appeal, the directed verdict wasupheld. Among other things, the appellatecourt noted “Plaintiff cannot prevail bymerely showing that following Dr. Katz’srecommended courses of action would haveimproved Plaintiff ’s chances of keeping hiseye…[P]laintiff has not shown that thealleged negligence had a probable connec-tion to the loss of his eye, only that it had apossible connection.” As such the directedverdict on causation was appropriate.

VII. VenueThere was at least one reported case

involving the issue of venue in a malpracticecase last year. The holding was a narrowone.

Morris v. Rockingham Cty., ___N.C.App. ___, 612 S.E.2d 660 (2005) wasa negligence and malpractice claim thatarose out of an ambulance transportbetween two hospitals in different counties.

Plaintiff Charles Morris was a patient atEden Memorial in Rockingham County.He was to be moved from that facility toNorth Carolina Baptist Hospital inForsythe County. The transport was to beaccomplished by paramedics employed byRockingham County. After arriving atBaptist Hospital, and while removing thestretcher carrying the plaintiff from theambulance, the paramedics allegedly


allowed the head of the stretcher to“bounce” off of a step and subsequentlydrop to the ground. As a result, Plaintiffclaimed he sustained cervical injuriesrequiring surgery.

Plaintiff filed his claim in ForsytheCounty. Defendants moved for a change ofvenue, to Rockingham County. As a basisfor their motion, Defendants claimed thatsince the action was being brought against acounty and its public officers for the per-formance of an official duty, venue wasproper only in Rockingham. The trial judgedenied Defendant’s motion.

The court of appeals affirmed. The courtrejected Defendant’s claim that public offi-cers can only be sued in their own county.The “official duties” of the paramedicsbrought them to Forsythe County, wherethe accident occurred. As such, the cause ofaction, for venue purposes, arose inForsythe, not Rockingham County, heldthe court.

VIII. Recovery of CostsThe law regarding the recovery of costs

in a medical malpractice action, as in manycivil actions, has been in conflict in NorthCarolina for years. The primary confusionseems to be the court’s interpretation of twocompeting statutes, N.C.G.S. § 6-20 andN.C.G.S. § 7A-305. The cases decided in2005 by the court of appeals only added tothe disarray.

There were at least four published opin-ions by the court in 2005 that dealt with theaward of costs. Two of the cases were med-ical malpractice actions. However, all fourwill be reviewed briefly since any one ofthem might have some influence on therecovery of costs in malpractice cases.

The first case, Handex of Carolinas v.County of Haywood, ___ N.C.App. ___,607 S.E.2d 25 was a breach of contract andnegligence action. The pertinent issue inHandex was whether the trial judge erred inawarding as costs deposition fees in theamount of $1,980.61. The court of appeals,citing the decision of Department of Transp.v. Charlotte Area Mfd. Housing, Inc., 160N.C.App. 461, 586 S.E.2d 780 (2003),held that deposition fees were not recover-able because they are not specifically listedin N.C.G.S. § 7A-305. The court rejectedany notion that a trial judge has discretion,under § 6-20, to award such costs. TheHandex decision was published on January

18, 2005. The court looked at costs again eight

months later, in Miller v. Forsythe Mem’lHosp., ___N.C. ___, 618 S.E.2d 838(2005). Miller was a medical malpracticeaction in which Plaintiffs alleged thatCynthia Miller had been injured as a resultof the negligent administration of an antibi-otic injection. The jury returned a defenseverdict.

Following the verdict, defense counselmoved to recover costs, including deposi-tion costs, mediation costs, expert witnessfees, and exhibit fees. The trial judge deniedall of these costs. On appeal, the courtfound that the judge had erred with regardto the denial of mediation fees, since suchcosts are specifically listed under § 7A-305.The court also held that although expertfees were recoverable pursuant to § 7A-305,such fees could be awarded only where it isshown that the expert was under subpoena.There was no such showing in Miller. Assuch, the denial of expert fees was alsoappropriate.

However, on the issue of deposition fees,the court made no reference to Handex.Instead, the court stated that the decision toaward deposition fees was within the discre-tion of the trial judge. Since there was noshowing of an abuse of that discretion, thetrial court’s order would stand. The courtreached essentially the same conclusionwith regards to the exhibit costs.

The next published opinion on therecovery of costs came on October 4, 2005,in Oakes v. Wooten, ___ N.C.App. ___,___S.E.2d ___ (2005). In Oakes, the courtof appeals rejected the notion that costs notlisted in §7A-305 were recoverable.

Oakes was a negligence action arising outof an automobile accident in GuilfordCounty. The jury found for the plaintiffand the judge awarded costs that includedfees for medical reports, depositions, travelcosts, and trial exhibits. The trial judgeapparently felt that §6-20 allowed him thediscretion to award costs not listed in § 7A-305. On appeal, the trial judge’s decisionawarding these costs was reversed: Sincethese costs were not specifically listed in §7A-305, it was improper for the court toaward them, held the appellate court.

In reaching its conclusion, the court inOakes cited several prior opinions, includ-ing Handex. But there was no mention ofMiller.

Incredibly, on the very same day theOakes case was published, another appellatecourt decision reached a very different con-clusion as to whether costs not listed under§ 7A-305 were recoverable, or not.

Morgan v. Steiner, 2005 WL 2428755(October 4, 2005) was a medical malprac-tice action from Richmond County. Thejury returned a defense verdict and the trialjudge subsequently awarded defense costs inthe amount of $31,082.87. These costsincluded deposition costs, costs for medicalrecords, mediation costs, exhibit fees, expertwitness-related costs, and other fees. Onappeal, Plaintiff challenged the trial court’saward of costs, other than those fees specifi-cally listed in § 7A-305.

The court of appeals in Morgan took amore expansive view of a trial judge’s abilityto award costs. Citing Department of Transp.v. Charlotte Area Mfd. Housing, Inc., 160N.C.App. 461, 586 S.E.2d 780, and the2004 decision of Lord v. CustomizedConsulting Specialty, Inc, 164 N.C.App.730, 596 S.E.2d 891, the Morgan courtdeclared that deposition costs were recover-able in North Carolina, despite the fact thatthey are not listed in § 7A-305.

How did the Morgan court get there?In both Charlotte Area and Lord,

observed the court in Morgan, a trial judge’sauthority to award costs included not onlythose costs specifically listed in § 7A-305,but also any costs that were established bycase law prior to the enactment of § 7A-305in 1983. The source of the trial judge’spower, continued the court, was § 6-20.Since deposition costs had been recoverableprior to 1983, they were recoverable inMorgan, said the court. There was absolute-ly no mention in Morgan of the Oakes deci-sion, where deposition costs were forbidden,published on the same day.

But what about costs for medical recordsand trial exhibits? Here, the court inMorgan drew a line. Since neither of thesecosts had been recognized in the case lawprior to 1983, and since neither was listedin § 7A-305, they were not recoverable.

So now we have at least two, if notthree, rules on costs: Pursuant to Handexand Oakes, the only costs you may recoverare those specifically listed in § 7A-305.But using the Morgan and Miller cases,counsel can make the argument that theirclients may recover not only costs listed in§ 7A-305, but also any costs that were

28 SPRING 2006

awarded, or recognized by case law, prior to1983.

What do all of these cases mean to theaverage practitioner? At the very least, thedoor remains open to the possibility of therecovery of some costs that are not listed in§ 7A-305—especially deposition costs.Since there is authority going in several dif-ferent directions, counsel can—and proba-bly should—ask the trial judge for thesecosts. Until the Legislature or the SupremeCourt weigh in, this area of North Carolinacivil practice will undoubtedly be the sub-ject of additional opinions in the future.

IX. Rule 9(j)Does the granting of a Rule 9(j) motion

to extend the statute of limitations apply toall the potential defendants in a malpracticecase, named or not? The answer to thatquestion, according to the unpublisheddecision of Stenger v. Spagnoli, 617 S.E.2d723 (2005), is yes.

Stenger was a malpractice action filed inMecklenburg County. On September 22,1998, Plaintiff ’s decedent had been admit-ted to the hospital for surgery on her tem-poro-mandibular joint. The surgery wassuccessful but two days later, on September24, the patient was found unresponsivewhile still in the hospital, and died.

On September 21, 2000, the courtgranted Plaintiffs an extension of time tofile their malpractice claim, pursuant toRule 9(j). Plaintiffs named several defen-dants in their 9(j) motion, and were given120 days, to file their claims. Plaintiffs sub-sequently filed their action on January 19,but included additional defendants notnamed in their 9(j) motion. These “new”defendants filed a motion to dismiss, claim-ing that the statute of limitations hadexpired because they were not named asparty-defendants by Plaintiffs when theyobtained their Rule 9(j) extension inSeptember 2000.

The trial court agreed, granting thesedefendants their motion to dismiss. Onappeal, however, the judge was reversed.

The court of appeals, citing priorauthority, held that “where there are multi-ple defendants, a single motion filed in thecounty where the cause of action first arosewill be effective to extend the statute of lim-itations against all defendants ultimatelynamed in the action.” By the order ofSeptember 21, 2000, continued the court,

the statute of limitations was extended to allprospective defendants and the ruling onthat portion of the motion to dismiss was inerror. In reaching its opinion, the courtnoted that it was not making any new law.Rather, the holding continued a line of caseswith similar outcomes going back to at least1999.

Rupe v. Huck-Follis, ___ N.C.App. ___,611 S.E.2d 867 (2005) was another Rule9(j) case decided last year. In Rupe, howev-er, the court was dealing with the expert cer-tification requirements imposed by theRule.

Rule 9(j)(2) requires that a complaintalleging medical malpractice contain anallegation that the medical care at issue hasbeen reviewed by an expert qualified to tes-tify under rule 702(e) of the Rules ofEvidence. Failure to include such an allega-tion in the complaint will result in dis-missal. In October of 2001, the court ofappeals held that this provision of Rule 9(j)was unconstitutional. See Anderson v.Assimos, 146 N.C.App. 339, 553 S.E.2d 63(2001), vacated in part and appeal dis-missed, 356 N.C. 415, 572 S.E.2d 101(2002). One year later, the North CarolinaSupreme Court vacated the Anderson deci-sion, leaving Rule 9(j) intact.

The Rupe case was filed after the appel-late court’s decision in Anderson. As such,the complaint in Rupe did not contain theexpert certification, which was brieflyunconstitutional. After the Supreme Courtsubsequently reinstated the Rule,Defendants in Rupe moved to dismissPlaintiff ’s complaint for failure to comply.The trial judge rejected the motion, but asecond judge, on a motion for rehearing,granted the dismissal.

The court of appeals reversed, reinstat-ing the complaint. When the plaintiff filedhis complaint, said the court, the originalappellate court decision in Anderson was stillgood law. As such, continued the court,“Plaintiff ’s action proceeded as if the Rulesof Civil Procedure existed without Rule 9(j)and Plaintiff could not subsequently befaulted for failing to comply with its certifi-cation requirement.” This was a commonsense decision limited to the state of the lawfor a brief period of time, and probably willnot result in any significant additional caselaw or changes.

Yet another Rule 9(j) case was decidedby the court late in the year in Estate of Vicky

Barksdale v. Duke University Medical Center,___ N.C.App. ___, ___S.E.2d ___ (2005).

In Barksdale, the plaintiff ’s decedentdied of cancer on March 18, 2000. Theestate subsequently filed suit against severalhealth care providers alleging, among otherthings, that the defendants had failed totimely diagnose the decedent’s illness.

Plaintiff ’s first complaint alleging mal-practice was filed in March 2002. The com-plaint did not contain a Rule 9(j) certifica-tion. In December 2002, Plaintiffs took avoluntary dismissal of their complaint pur-suant to Rule 41(a). Since Rule 41(a) pro-vides for a one-year extension of the statuteof limitations, and since the three yearstatute applicable to medical malpracticeactions would not expire until March 2003,Plaintiffs believed that the voluntary dis-missal would extend the statute to at leastDecember of 2003. As a result, they refiledtheir action on November 19, 2003. Thelast complaint finally contained the requi-site expert certification pursuant to Rule9(j).

Held, Plaintiff ’s complaint was properlydismissed by the trial court for failure tocomply with the statute of limitations. Thecourt of appeals reviewed several recentSupreme Court decisions involving Rule9(j) and rule 41(a) and concluded, inessence, that a Rule 41(a) voluntary dis-missal does not extend the time in whichPlaintiffs must file a complaint that com-plies with Rule 9(j). The court noted thatthe original limitations period would haveexpired in March 2003. If Plaintiffs hadproperly moved for a 120-day extension oftime (also per Rule 9(j)), said the court, theywould have had until July 2003 to file theircomplaint with the proper certification. Butthey failed to do so.

The court of appeals also rejectedPlaintiff ’s argument that Rule 9(j) did notapply because of the rulings in the Andersoncase, discussed above.

X. Damages/Emotional DistressIadanza v. Harper, ___ N.C.App. ___,

611 S.E.2d 217 (2005) was a somewhatcomplicated case that involved allegationsof professional negligence, and other civilclaims, arising out of care and treatment,and an alleged relationship, between a doc-tor and his patient. With regard to damages,Defendant brought a motion for partialsummary judgment on the grounds that


Plaintiff did not allege “special damages” orprovide proof of “severe emotional distress.”As such, claimed the defendant, Plaintiffwas not entitled to actual or compensatorydamages. The trial court grantedDefendant’s motion.

The court of appeals reversed. The courtrejected Defendant’s contention thatPlaintiff was not entitled to general damagesbecause she did not offer proof of “physicalpain and suffering.” Physical pain and suf-fering is only one aspect of such damages,observed the court, and an award of suchdamages does not require proof of physicalpain. Likewise, continued the court, it wasnot necessary for the plaintiff to prove thatany alleged emotional distress was “severe.”The requirement that emotional distress besevere is an element of a cause of action fornegligent infliction of emotional distress,said the court. But it is not a requirementfor the recovery of general damages. Assuch, it was improper for the trial court togrant Defendant’s motion.

The decision does not make any newlaw, but it stands as the most recentreminder to counsel that general damagesfor pain and suffering are recoverable with-out proof of physical pain or suffering.

XI. Judicial EstoppelHarvey v. McLaughlin, ___ N.C.App.

___, 616 S.E.2d 660 (2005) was a malprac-tice action that started out life in the work-ers’ compensation system.

In Harvey, Plaintiff sustained a compen-sable workers’ compensation injury to hisback that was settled for nearly $500,000.After that action was settled, Plaintifffocused his litigation attention on the chi-ropractor that treated him for his work-related injury. Specifically, Plaintiff claimedthat the chiropractor committed malprac-tice by performing a “violent” manipulationthat allegedly resulted in a ruptured cervicaldisc and multiple surgeries.

Defendant subsequently moved to dis-miss the complaint on the grounds of judi-cial estoppel, claiming that the plaintiff hadtaken inconsistent legal positions in theworkers’ compensation case and the mal-practice case. In review of the record, thetrial judge found, among other things, thatPlaintiff “had intentionally asserted con-trary legal position” between the twoactions and had, in essence, misrepresentedthe nature of his condition and injuries. On

the one hand, observed the trial judge,Plaintiff told the workers’ compensationsystem that he had seriously injured hisback at work. On the other hand, said thejudge, when Plaintiff filed his malpracticeclaim, he alleged that he was in good healthprior to treatment with his chiropractor. Assuch, the court dismissed Plaintiff ’s com-plaint.

The court of appeals reversed. Uponcareful scrutiny of the complaint filed in thecivil action, and the materials related to thecompensation claim, the appellate courtdetermined that Plaintiff had not takenclearly inconsistent positions in the twocases. The court noted that although thedoctrine of judicial estoppel prohibits par-ties from deliberately changing positions onfactual assertions according to the “exigen-cies of the moment,” a single internalinconsistency is not enough to justify impo-sition of a dismissal.

XII. Interlocutory ReviewAre sanctions likely to be imposed on a

party that improperly appeals an interlocu-tory order to amend a complaint?Apparently so.

Estate of Spell v. Ghanem, ___ N.C.App.___, ___S.E.2d ___ (2005) was a medicalmalpractice action that arose out of thedeath of an unborn child who died in utero.Plaintiff ’s initial complaint was filed inOctober 2003. In July of 2004 Plaintiffsfiled a motion to amend their complaint toadd additional allegations against the nurs-ing staff at the hospital. The motion wasgranted, and the defendants were given 25days to answer. Instead, the defendants filedan appeal, claiming that a “substantialright” would be lost if the case proceededwithout an immediate review of the judge’sruling on the motion to amend.

To support their “substantial right”claim, defendants argued that without animmediate appeal they would (1) lose theirright to raise the statute of limitations orlaches as affirmative defenses, and (2) losetheir ability to have Plaintiff ’s complaintdismissed for failure to comply with Rule9(j).

The appellate court disagreed: The courtfound that not only had the defendantsfailed to properly raise and preserve theseissues with the trial court, but also that theinterlocutory appeal itself was subject tosanctions pursuant to Rule 34. The court

rejected the defendant’s contention thatpretrial review is necessary because theywould lose forever the “right” to avoid theexpense and inconvenience of a trial.Avoidance of trial is not a “substantial right”that would make the order appealable, saidthe court, instructing the trial judge todetermine the reasonable amount of attor-neys’ fees incurred by Plaintiffs in opposingthe appeal.

Federal CourtThere were at least two published cases

involving malpractice claims in the federalcourts in North Carolina in 2005. Bothcases were filed by prisoners and werepremised on alleged civil rights violationsfor the denial of adequate medical carewhile incarcerated. Both cases were “delib-erate indifference” actions in which the pris-oners failed to establish that the medicalcare in question was “so grossly incompe-tent, inadequate, or excessive as to shock theconscience or to be intolerable to funda-mental fairness.” As such, summary judg-ment was granted in both actions for thedefendants. See Wynn v. Mundo, 367F.Supp.2d 832M.D.N.C. (2005) (“deliber-ate indifference is a very high standard—ashowing of mere negligence will not meetit.”); Nyuwa v. Bissonnette, 2005 WL2136949 (M.D.N.C. 2005)(an error ofjudgment on the part of medical staff willnot constitute a constitutional deprivation).Although neither case set any new prece-dent, both Wynn and Nyuwa reaffirmed therule that ordinary allegations of mere negli-gence or malpractice are not sufficient toconstitute “deliberate indifference” in thecivil right/prisoner setting.

ConclusionAs 2006 begins, the important cases dis-

cussed here from 2005 will undoubtedlyimpact attorneys on both sides of the barwho practice in the medical malpracticefield.

Mark Canepa is an attorney with theCharlotte defense firm of Morris, York,Williams, Surles & Barringer, located atwww.morrisyork.com. Prior to joining MorrisYork, Canepa was a shareholder in theCalifornia firm of Baker, Manock & Jensenwhere he defended medical malpracticeactions. He is a 1988 graduate of theUniversity of California, Hastings.

30 SPRING 2006

32 SPRING 2006

The first town they found with sheltersavailable was little Brookhaven, Mississippi,with a population of about 9,500. These werenot Red Cross shelters, but faith-based(church run) ones. Five churches inBrookhaven opened their doors the day afterKatrina passed and took in any and all whowere in need. With church funds, individualdonations, and with church members doingthe work, they fed and sheltered the evacuees.

This was the situation when I arrived onAugust 30th as a Red Cross National DisasterTeam member. My crew was assigned toEasthaven Baptist Church on the outskirts oftown, the first shelter found by the evacuees asthey traveled north. The shelter filled rapidlyand the building, though large, was packedwith 350 persons—young, old, in-between,all races, all walks of life. The church class-rooms and meeting rooms were jammed with

this community of people who had all beentorn from their homes.

Traditionally, the Red Cross sets up shel-ters after a disaster, manning the kitchens andcaring for clients. Katrina and Brookhavenwere different. This was a community effort,with the church shelters and church volun-teers partnering with the Red Cross. Wejoined in the cooking, serving, and cleaningthat had already begun. Pots and pans were

My Katrina ExperienceB Y S T E V E S C H L O S S E R

You saw them on television, being plucked off rooftops, pulled through windows and into boats,

wading through waist-high water, clinging to their children. What happened to these

Hurricane Katrina victims after that? Thousands went to the Superdome and to the Astrodome

in Houston—the media covered all that. But thousands of others left the New Orleans area on

their own initiative by any means available. These

evacuees did not loot, shoot, rape, or riot. With only

the clothes on their backs, they drove, hitchhiked, or

walked north along Interstate 55 into Mississippi.

One enterprising gentleman, who later needed a littlefree legal counseling, “borrowed” a City of New Orleansdump truck to get himself and his family, as well as oth-ers he found stranded along the way, out of New Orleansand to the shelter at Easthaven Baptist Church inBrookhaven, Mississippi.

washed, kitchen and dining room swept andmopped after each meal, tables were sanitized,and halls and rooms cleaned daily. Outsideareas were cleaned daily as well. Sixteen to 18-hour workdays were the norm.

A few evacuees had air mattresses, butmost, including volunteers, slept on thefloors. More mattresses arrived from the RedCross, and some cots were obtained, and theelderly and special needs persons were able toget off the floors. Local citizens donatedclothes. The Red Cross and other donors sentin bottled water by the truckload, a true bless-ing since the local water was contaminated.The Red Cross began sending food, at firstmilitary heater meals, but soon accounts wereset up with large food distributors and theshelters could order freely.

Easthaven was fortunate in receivingenough donations of food, water, clothing,and baby needs that we were able to serve as adistribution center for evacuees unable to getinto shelters, as well as those Brookhaven andcounty citizens affected by the hurricane.

The most gratifying part of our missionwas the face-to-face work with the clients.There was not a person staying in theEasthaven shelter who had not been wipedout; many were missing children, parents,grandparents, and other relatives. Becausemental health volunteers were scarce, animportant part of our work was talking andlistening, mostly listening, and then attempt-ing to give some hope for the immediatefuture. A great morale booster was the accessto the Red Cross website, which eventuallybegan listing evacuees for various shelters. Asloved ones were found, spirits lifted and resi-dents began to move on to join the recentlylocated relatives.

Local businesses were contacted for jobsand local families were asked to take in evacu-ated families. Local doctors and dentists wereimplored to come to the shelter, and did sowithout exception, helping those in need,making appointments, and sending the mostill to the hospital.

FEMA representatives began coming byand false hopes were raised. After a few suchvisits, if the FEMA workers did not have assis-tance in hand, they were not invited in.

The Red Cross, within a week of ourarrival, was able to disburse checks to shelterresidents. Amounts were based on family size.No one got rich, but it was enough for gas andmotels as families began to travel to out-of-state relatives. The church bus was used to run

clients without vehicles to the bank to cashtheir Red Cross and Social Security checks. Aspeople moved out of the shelter, those remain-ing had more living space, more privacy, andmore access to the two showers. The atmos-phere became more hopeful and happier.

When I left after two and a half weeks ourclient population was down to 110. Gung hoRed Cross replacements arrived and I was ableto leave with the knowledge that our evacuee

friends still there were being well cared for bya truly loving church and a handful of RedCross volunteers.

Steve Schlosser has practiced law inGreensboro since 1965 and has maintained aprivate practice as a criminal defense attorneysince 1970. He is a charter member of theGreensboro Criminal Defense LawyersAssociation.


The Red Cross team at Easthaven Shelter, Brookhaven, MI. Steve Schlosser is second from the rightin the back.

Shirley L. FultonAverill C. HarkeyH. Edward Knox

Jean B. LawsonJulie R. Lewis

Theo X. NixonMarc D. TowlerScott P. VaughnSusan J. Weigand

THE MECKLENBURG BAR REVUEGratefully Acknowledges Its Supporters.

GOLDHelms Mullis & Wicker, PLLC

Kennedy Covington Lobdell & Hickman, LLPPoyner & Spruill, LLP

SILVERMoore & Van Allen, PLLC

IKONGeorge V. Laughran II

Murphy & Chapman, PANorelli & Company

The Odom Law FirmRobinson Bradshaw & Hinson, PA

FANS

34 SPRING 2006

Officers and members of thecouncil, members of the judi-ciary, guests of the State Bar,and especially to all of you,

my fellow septuagenarians representing theState Bar Class of 1955:

When I consider the contributions youhave made, individually and collectively, toour state, our profession, and your severalcommunities, I’m overtaken by a sense of thegreat honor it is to appear before you today aswe celebrate the five decades of our profes-sional life together.

My message is essentially one of congratu-lations to each of you for having successfullyreached what some wag has facetiouslyreferred to as “the lawyer’s metallic age.” Thisis, of course, that advanced season in legal life,which we now enjoy, when you have silver inyour hair, gold in your pocket, and lead inyour ass!

Looking back, it cannot be said that wewere a diverse group. We were in fact white,male, and mostly 25 years old. I recall onlytwo women and no African-Americans in myclass at Chapel Hill who took the bar in 1955.Of these two, only one, Ann GreeneMcKenzie, formerly of Concord, remains amember of the surviving State Bar Class of‘55. The other, a distinguished scholar andjurist, now deceased, was known to us in lawschool by the familiar name of “Peanut.” This“Peanut” regularly “broke the grading curve”of our class at Chapel Hill to the dismay of themale society, myself included, in which shelived. I’m speaking, of course, of theHonorable Naomi Morris, late chief judge ofthe North Carolina Court of Appeals. I canrecall no African-American or additionalwomen members of our group at Chapel Hillwho are with us today. I’ve just learned, how-ever, that there is in attendance with us today

a distinguished member of the Class of ‘55who is both a woman and an African-American. I’m speaking of attorney AllieLatimer, who was introduced to you a fewminutes ago. I believe it is fitting that weshould give her special recognition at this timebecause of her unique pioneer status.

Of course most of us received our legaleducation at the Wake Forest, Duke, andUNC Law Schools. Our ranks do include,however, law graduates of the Universities ofRichmond, Howard, Pennsylvania, andSyracuse. Two of us received our legal educa-tion at UVA. And I proudly note that two ofour happy band brought the credentials ofHarvard Law School, including a cum laudedegree, to the Class of ‘55.

When we took our bar exam, it was a threeday ordeal of essay questions not diluted bythe simplicity of multiple choice questions towhich there are actually correct answers. Butthe big difference in our exam from its con-temporary example is that ours was adminis-tered under the demonic hand of one EdCannon, then executive director of the LawExaminers. Who among us cannot remembercalling, when the results of our bar exam wereavailable, to determine whether we had passedor failed, only to hear Mr. Cannon’s voice ofdoom tell us, with elaborate pauses for effect,that he could not find our name among theelect—and yet: “What was your name? Davis?Oh, I thought you said McGillicuddy. Let melook again. I’ve been over this list a couple oftimes. But...oh yes, oh yes, there it is. I’veoverlooked your name by mistake. Yes, Mr.Davis, it appears you have passed the bar.”

Like most Americans of most generations,we have known war and rumors of war. Iexpect a few of us may even have seen militaryservice in the big one: the Second World War.I am sure that many of us were involved in the

Korean War, and that most of us have servedin our nation’s armed forces at one time oranother—if only, as in my case, as a mildmannered legal officer. Not as soldiers but ascitizens we have observed a Vietnam War lost,a Cold War won, and a War on Terrorismbegun.

Once most of us opened our practices inthe “Old North State” following graduationand military service, we covered the statefrom Hayesville to New Hanover. Only tofind, to our surprise, that the law we had socarefully tried to understand in law schoolwas rapidly being changed on us by theGeneral Assembly, assisted by the leadinglights of our profession, including some ofour own number. One of the first waves ofthis assault was the Universal CommercialCode, which trumped what we had learned atChapel Hill as “Bills and Notes” under theredoubtable Professor Breckenridge. Thesewaves of enlightenment have never ceased toflow over us: the new Intestate SuccessionAct; the new Probate Code; the new BusinessCorporation Act; the new Rules of CivilProcedure; the new Rules of Evidence; thenew Appellate Rules; and so on and on. Eventhe organization of our courts has beenchanged and lo, the old local “recorderscourts” we knew so well have disappeared,“leaving not a rack behind,” giving way to dis-trict courts and the court of appeals. And,most regrettable of all to the true student ofhistory, such as myself, the ancient and hon-orable title of “solicitor” has been taken, withscarcely an apology, from the mantle of thatpublic officer we must now refer to by thebland title of “district attorney.”

And what have you gal and guys who arerepresented here today been up to in these fivedecades since you were sworn in? Quite a bit,as best I can determine. Many of you have

A Fifty Year Lawyer Speaks—Remarks by Roy W. Davis Jr.

F R O M T H E F I F T Y - Y E A R L A W Y E R S L U N C H E O N , O C T O B E R 2 0 0 5

been general practitioners,yet have maintained emi-nent standing as criminal orcivil trial attorneys. Severalhave identified yourselves asprobate, trust, estate, andreal property specialists, andone of you has specialized inpublic utility law. At leasttwo of you have been in-house counsel to industry.One of you has served asgeneral counsel to what maybe the state’s largest andmost prominent life insur-ance company. Anotherorganized one of the state’sfirst firms specializing inpatent, copyright, and trade-mark law—and this waslong before the practice of“intellectual property law”became a hot topic or synonymous with guar-anteed financial success. Many of you havepracticed municipal law in your several com-munities. And one of you, thought by me tobe a mere lobbyist, allegedly claims the spe-cialty of “legislative law,” which he practices,according to all I hear, with notable integrityand success.

A significant number of you, as well as sev-eral of our deceased members, have served asjudges of our appellate and trial courts. Atleast four of you have served in the NorthCarolina General Assembly. At least five ofyou have been members of the State BarCouncil. Perhaps the majority of you haveserved as presidents of your local district orcounty bars. Three presidents of the NorthCarolina Bar Association have come from ourclass, and many of you have served in posi-tions of leadership on behalf of the BarAssociation, the Academy of Trial Lawyers,and our other voluntary bars. Your ranksinclude two of the smartest people I’ve everknown, one of whom alleges himself to be flu-ent in French, German, Italian, Russian, andSpanish. These two eminently qualifiedlawyers, one from Charlotte and one fromRaleigh, ably represented the interests ofNorth Carolina in and to the American BarAssociation from 1968 for almost the 30ensuing years.

Speaking of changes, when we were swornin to take our place in the North CarolinaState Bar, it was composed of about 3,000lawyers. Things have changed somewhat in

that regard because the State Bar today isseven times that large. That’s right, folks,North Carolina now has about 21,000lawyers. In 1955 there were only four lawschools in the state. Now there are five lawschools in operation in North Carolina, andtwo more will soon be added. We have happi-ly participated in a half century of economicprosperity that has brought us the mega-firm,sophisticated specialties and sub-specialties oflaw practice, freedom of speech in the form ofadvertising (“you don’t pay unless we win”),and a comfortable living for most of us. Thereis little doubt that lawyers practice today at ahigher level of knowledge and skill than theydid in the ancient days of 1955, and we havewitnessed the birth and unprecedentedgrowth of information technology as a defini-tive factor in our lives and in our law practices.Symbolically, we have moved all the way frommanual typewriters and black coffee to lap-tops and bottled water. And, in a more seriousvein, we have seen commendable improve-ments in the judicial system of our state, thecontinuing education of lawyers, and in thefield of civil rights. In 1955, almost all of ourlawyers were white and male. Some of the vol-untary bars did not always welcome African-American members. Today, many NorthCarolina lawyers are women, African-Americans, or representatives of other minori-ties. And the voluntary bars have long beenenriched by the gifts and leadership of womenand minority members.

Do we of the Class of ‘55 claim credit for

all the good things that have happened in thelegal system since we came to the bar? Well,not exactly. We do recognize, however, that itis the duty of all lawyers to justify our nearmonopoly over the practice of law by servingas problem solvers for the public. As officers ofthe court, we understand it is our responsibil-ity to ensure that our courts are available to allour people, rich or poor, and that the courtsof our state should operate as fairly and effi-ciently as possible. Our Rules of ProfessionalConduct tell us it is the basic duty of eachlawyer to provide community service, com-munity leadership, and public interest legalservices in such areas as poverty law, civilrights, charitable organizations, and theadministration of justice. I do here and nowboldly claim for the Class of ‘55 that we haveused our legal skills to fulfill these profession-al duties in our communities from Hayesvilleto New Hanover, and even beyond the bor-ders of North Carolina, not for just a year ora decade, but on thousands of occasions overthe course of the last 50 years. And many ofus are still playing that role.

So, speaking in a spirit of good will for allto hear: I don’t care what anybody says. Ithink we’ve done a great job. I hereby con-gratulate the State Bar Class of 1955, and sug-gest that every member of our class now standto receive the well deserved applause of allthose assembled here today.

Roy W. Davis Jr. is a former North CarolinaState Bar President from Asheville.


The 2005 class of Fifty-Year Lawyers

Documents

ERISA Claims Against Settlement Funds page 8 Lawyers as Good