Benefits for Disabled Veterans (part 1)

There are several types of benefits that may be available to Veterans who cannot work due to their physical and/or mental health.

Veterans Compensation

Veterans who have health problems that are service-connected should file for Veterans Compensation benefits. VA Compensation is a non-taxable payment available to any Veteran, even if they are still able to work. In order to qualify, the Veteran must show that their medical or physical problem either started while they were in service, was caused by their service, or if it existed prior to service, that the condition was made worse by their service. Many people think of service-connected disabilities as combat related. But any condition that started while on active duty service can qualify. For example, an injury that resulted from a bad landing during a parachute training exercise can be service connected. Injuries from a car accident while on leave can also be service connected. A Veteran with a mental health conditions such as depression and PTSD may be eligible for compensation payments.

Payment amounts for Veterans Compensation depend on the type of condition and the severity. A condition is assigned a rating from 0% to 100% and the payment amount goes up accordingly.  Veterans who have a rating less than 100% but who are unable to work due solely to service-connected conditions may qualify for Total Disability Individual Unemployability (“TDIU”). Veterans who receive TDIU benefits are paid at the 100% rate.

Non-Service Connected Pension

A Veteran may qualify for a non-service connected (“NSC”) VA pension if they are unable to work, but the inability to work is not due to service-connected conditions. For example, a Veteran who suffers serious injuries in a fall and can no longer work, but the fall occurred after their discharge from the military, may apply for a NSC pension. To qualify, a Veteran who entered military service prior to September 7, 1980 must have served at least 90 days on active duty and at least one of those days had to be during a period of war.  The Veteran need not have served overseas or in combat. If a Veteran entered service after that date they must have served at least 24 months or half of their required time in addition to serving at least one day during a period of war.

Periods of War

  • World War II (December 7, 1941 – December 31, 1946)
  • Korean conflict (June 27, 1950 – January 31, 1955)
  • Vietnam era (February 28, 1961 – May 7, 1975 for Veterans who served in the Republic of Vietnam during that period; otherwise August 5, 1964 – May 7, 1975)
  • Gulf War (August 2, 1990 – through a future date to be set by law or Presidential Proclamation)

Veterans must also meet low-income and asset requirements for this benefit. The benefit payment amount is higher than SSI benefits from Social Security, so any Veteran who meets the requirements for service during a period of war and is on SSI benefits from the Social Security Administration should apply for this benefit. Typically the Veteran will receive the NSC pension instead of SSI payments.

Elizabeth Lunn is a partner at Lunn & Forro, PLLC. The firm limits its practice to representing disabled individuals seeking Social Security and Veterans benefits. For more information about qualifying for benefits, you can contact the firm at 888-966-6566 or download the free Social Security Disability guide on the firm’s website.

Taking a Plea

If TV legal dramas were an accurate guide to our judicial system, the moment of reckoning for a criminal defendant would be in a courtroom after a jury returns with a verdict. But that’s not how it usually works. Most people charged with felonies never see a jury. In North Carolina, all but a small proportion of felony convictions are the result of guilty pleas. In fact, in the 2013-2014 fiscal year, only about 600 felony convictions in North Carolina came at the end of a jury trial. Over 27,000 convictions – 98 percent of the total – were obtained through guilty pleas.

There is no doubt that a negotiated guilty plea can be an ideal result. Guilty pleas save the court system time and resources, and defendants often benefit from the reduction or dismissal of some charges.

However, defendants who enter guilty pleas also forfeit certain rights. The most obvious ones are the right to a jury trial and the right to confront adverse witnesses. Less obvious, and certainly less well known, is that entry of a guilty plea also limits a defendant’s right to appeal the conviction.

Direct appeals in North Carolina are controlled by N.C. Gen. Stat. § 15A-1444, which restricts appeal after a guilty plea to the correction of errors in the sentence imposed. The appeal is not an opportunity to argue for a different, more desirable sentence. It is only a mechanism for correcting a sentencing error involving

  • the calculation of the points imposed for prior convictions (prior record level);
  • the type of sentence (probation or active sentence) permitted for a particular class of offense; or
  • the term of imprisonment authorized based on the type offense and the defendant’s prior record.

Defendants also have a right to appeal, if certain requirements are met, the denial of a motion to suppress occurring before entry of the guilty plea, or the denial of a motion to withdraw the guilty plea. No other issues can be raised on direct appeal following a guilty plea. Defendants can raise other issues in petitions to the appellate courts, but review is discretionary, not a right. The appellate courts can deny review without even giving a reason.

Our court system has become dependent on guilty pleas as an efficient and economical way to handle the high volume of criminal cases. However, the presumption of innocence remains at the heart of our criminal justice system. We must ensure that defendants who enter guilty pleas do so only after close consultation with their attorneys and with full understanding of the important rights they are relinquishing.

Kathleen M. Joyce is an Assistant Appellate Defender in the North Carolina Office of the Appellate Defender (OAD), a division of the Office of Indigent Defense Services. OAD staff attorneys represent indigent criminal defendants on their appeals to the North Carolina Court of Appeals and the North Carolina Supreme Court.

The Other Driver Was At Fault. Why Has My Claim Been Denied?

You’re driving down the road and need to make a left hand turn. You slow down, activate your turn signal, and because of oncoming traffic come to a complete stop. Suddenly, you are rear-ended and injured. The driver that hit you states he does not recall seeing your turn signal, but admits to seeing your brake lights. You submit a claim to his insurance company to pay for your medical expenses. Claim denied. You fight for justice, but the courts say you cannot recover. There was some evidence you only had your signal on for 150 feet before the turn, rather than the 200 feet the law requires. See Blankley v. Martin, 101 N.C. App. 175, 398 S.E.2d 606 (1990).

You’re focused on the road and traffic ahead of you as you drive straight toward an intersection. You have a green light, so you keep going. Suddenly, another driver runs a red light and causes an accident in which you are injured. You never saw the other driver coming because you were focused on the road in front of you. You submit a claim to the other driver’s insurance company to help with your medical expenses. Claim denied. You fight for justice, but the courts say you cannot recover. You might have seen the defendant coming had you paid more attention to the road. See Kummer v. Lowry, 165 N.C. App. 261, 598 S.E.2d 223 (2004).

Your twelve-year-old son is playing with friends near a school bus stop when he suddenly runs across the road because the bus is coming to take him to school. A car comes around a corner speeding in your residential neighborhood and strikes and kills your child. You submit a claim to the driver’s insurance company to help with the funeral expenses. Claim denied. You fight for justice, but the courts say you cannot recover. Your son didn’t exercise the same degree of care an ordinary person would have under the same circumstances.  See Wooten v. Cagle, 268 N.C. 366, 150 S.E.2d 738 (1966).

The results of these case examples are due to a doctrine of tort law in North Carolina called contributory negligence. Contributory negligence is conduct on the part of the injured party that contributes in causing the injury. It prevents recovery even if the injury victim is only 1% at fault. The defense has been criticized because it bars all recovery no matter how egregiously at fault the defendant might be and allows the defendant and their insurer to escape all accountability. Today, only North Carolina, Virginia, the District of Columbia, Maryland and Alabama still have pure contributory negligence. In other states, the plaintiff’s recovery is reduced by the percentage they were determined to be at fault.

Contributory negligence is a tool insurance companies employ often to avoid paying out legitimate claims.     Cases where there is a potential for an allegation of contributory negligence require careful investigation and fact-specific inquiries. Gathering evidence quickly after a preventable crash is vital in protecting yourself from this rather harsh defense. Many injury victims also make the mistake of thinking the insurance company is looking out for their best interest and provide recorded statements without thinking about what they are saying or how their statements can be misconstrued down the road. For these reasons, it’s almost always advisable for a crash victim to seek a consultation with an experienced personal injury practitioner to ensure their rights are appropriately protected after a wreck.

Blog post author Mike Rothrock practices law at The Law Offices of James Scott Farrin. Headquartered in Durham, the firm has offices throughout the state and focuses on Workers’ Compensation, Car Accidents, Commercial Truck Accidents, Personal Injury, Social Security Disability, Product Liability and Mass Torts, Intellectual Property, Civil Rights and Eminent Domain law.   

Blind Justice – NC Jurors Are Not Told That They Do Not Decide The Actual Award In A Medical Malpractice Case

A Fayetteville, NC jury recently decided that a surgeon was negligent in his care of a patient.  As a result of a hole left in the woman’s bowels after colon surgery, the patient endured lengthy hospital stays, three additional surgeries and a 6-week coma.  These injuries will require medical care for the rest of her life.

In deciding that the doctor was negligent, the jury awarded $3.24 million for the patient’s medical expenses and awarded $300,000 to her husband for loss of consortium.  The biggest part of the jury’s award was $4 million in “non-economic damages” – disfigurement, permanent injury, pain and suffering.

Given the amount of the award, the jury obviously thought the woman’s non-economic damages – particularly pain and suffering – were the greatest part of the woman’s injuries at the hands of the doctor.  However, the jury was never told that this portion of its award is blocked by a tort reform law that the North Carolina General Assembly passed in 2011.

This law caps noneconomic damages at $500,000.  Therefore, even though the jury said the patient is due more, this woman will receive $500,000 rather than the $4 million awarded by the jury.  This law also eliminates the $300,000 awarded to the husband for loss of consortium.

This North Carolina law capping noneconomic damages in a medical malpractice lawsuit came from a push for “tort reform.”  The insurance industry and the medical community promised that making it harder for victims to file medical malpractice lawsuits would reduce the number of “frivolous” suits that “clog the courts”; that imposing caps on the damages would reign in “out of control” juries; and that malpractice insurance premiums would fall, thereby reversing a doctor shortage.  More than half the states in the United States have implemented tort reform by way of capping monetary damages, reducing the amount of time victims had to discover and bring a lawsuit, and even limiting the amount of money lawyers can be paid for representing clients.

None of these promised benefits have become reality – mainly because the alleged problems did not exist in the first place.  In terms of damages, the Department of Justice found that the median award by a jury in medical malpractice cases was $400,000, compared to $631,000 awarded in bench trials, which are decided by the judge rather than the jury.  Judges actually awarded more in these cases, but legislators have been convinced that juries cannot be trusted to stay within reasonable bounds in their awards to plaintiffs.  The legislators have taken this control away from the jury, but the jurors are never told.

In 1999, the Institute of Medicine concluded that between 44,000 and 98,000 patients are killed in hospitals each year due to medical errors. Many more are injured.  That number – which is more than automobile and workplace accidents combined – does not include deaths in doctors’ offices or clinics  – such as outpatient or surgical clinics. In 2011, a study in Health Affairs estimated the number of avoidable deaths was probably closer to one million.  However, several studies have found that only about 1 in 10 cases of serious medical negligence ever result in any legal action being brought on behalf of the injured party.

Tort reformers have been successful in keeping victims from seeking justice. It is time for legislators to recognize that tort reform has not worked and to look for real solutions to make patients safer.   It is also time to put control back in the hands of the jury which hears all of the evidence.

Written by Jean Sutton Martin of the Law Office of Jean Sutton Martin PLLC.  Attorney Jean Sutton Martin provides focused, personalized legal solutions for people who have been harmed by pharmaceutical drugs and medical devices.

A Modest Proposal on Court Costs and Fines

The United States of America is home to 4% of the world’s population. It meanwhile is home to 25% of world’s jailed population.

The Washington Post recently reported on the dire consequences for a man caught red-handed after his hunger led him to steal $5 worth of snacks in April. Law enforcement subsequently arrested this suspected thief who obviously understood moderation in a way I wish I had in college. The government held him locked him in a cell where he waited for a spot in the mental health facility to open prior to release. While in jail, inmates reported that he often paced his cell covered in his own filth. He died while waiting on August 19, 2015.

In a recent episode from one of HBO’s 9,000 Emmy award winning shows, Last Week Tonight with John Oliver, the show reported on a grandma who the State of Alabama jailed for her failure to pay a traffic ticket she simply did not have the means to pay. Police executed the warrant for her arrest while she posed to society the immense threat from the confines of her home. She was in jail for 10 days following the arrest until the Southern Poverty Law Center came to her rescue. Her name is Harriet Cleveland and she helped end what the SPLC called a modern-day debtor’s prison.

Despite the unconstitutional nature of a debtor’s prison, the message our justice system routinely sends the Nation’s poor is this: As long as you can pay for it, America is the land of the free.

Lawyers and poor people know all too well the acronyms FTA, FTC, and FTP. For the majority of the population, and especially the electorate in the majority of the districts in North Carolina, these acronyms mean nothing. Is there a Federal Transit Administration? Why is he talking about the Federal Trade Commission?

He’s not.

He’s talking about the offenses of Failure to Appear, Failure to Comply, and Failure to Pay. These are crimes in North Carolina for which law enforcement may issue an arrest warrant, revoke a person’s license, and compound fines already administered, but that could not be paid – not for some wanton disrespect for the law, but because the person simply did not have the means to defray the cost.

Speaking of cost, the state spends a lot of money per person per year to incarcerate an individual. The NC Department of Public Safety calculated that the minimum cost to incarcerate someone is $25,616 per year, or $70.18 per day. In Harriet Cleveland’s case, that would mean her incarceration would have cost the state $701.80.

Meanwhile, the American Bar Association identified the existence of no less than 46,992 collateral consequences associated with a criminal conviction. 1,011 of those are specifically unique to North Carolina. The consequences an individual can expect after the conviction of an offense like Failure to Pay can be overwhelming. One common example is that the individual will lose his license. Without his license, he cannot continue to perform his job. Without his job, he cannot pay the fine that precipitated the initial arrest for his Failure to Pay.

This might seem senseless at the moment. However, there is a purpose to court costs and fines. They aim to fund the courts without the increase in taxation. Like many of the subjects upon whom the state charges these fines, North Carolina courts are on the whole poor. For a state that proudly stands at the frontier for research and development, a testament in and of itself that North Carolina does not belittle intellectual improvement, our courts are woefully behind in technological sophistication.

Why is this revenue collection not working, though? Simply put, poor people are poor.

Again, this is just a modest proposal, but before I get to my proposition, there’s one last thing on which I need to comment.

Let’s start from the premise that all punishment is evil in a free society. There are times, of course, when it’s necessary. On the whole, though, society is willing to accept punishment when it’s useful. Punishment principally requires the state to strike the following balance: can we justify a person’s deprivation of liberty because what society gains in return is substantially greater?

If you’re on the fence about that, the answer is no. Look for a better alternative. We should do everything in our power to minimize the risk of the deprivation of one’s liberty while at the same time to maximize the likelihood of society’s ability to benefit from the punishment.

So here is my proposal. Let’s make court costs and fines proportional to the individual’s income. The state already has this information (tax returns), not that it would particularly hesitate to leap that privacy hurdle if needed (stingrays), and it makes perfect sense for the individual and the state. If the person’s income does not justify any fine, then other alternatives exist like community service that can allow the individual to comply with the court’s requirements without tacking on additional convictions.

One aspect of punishment is the responsibility it entrenches in the wrongdoer. It’s pretty fair to say that a $263 fine for someone who makes $8 an hour (currently above minimum wage) will instill in that person a much greater sense of responsibility and atonement than the same fine administered to someone who bills $1,000 hourly. Instead of making the amount the same, a substantially greater benefit to society and the individual could occur should the state elect to enact legislation to make the court costs and fines proportional to income. Here are some of the potential benefits:

For one, it will make it much less likely that a grandma will be hauled off to jail for her failure to pay if she is capable to pay. That will help the state, too, because it will then not spend money jailing her for 10 days, or around $700. Conversely, should the state require her to perform community service, the NC Department of Public Safety calculated those costs to reach $.15 per day, not to mention the benefit it can expect from whatever service she performs.

For two, it will also avoid the collateral consequences associated with the conviction. The person will maintain her ability to drive; and, in turn, that person will keep her job and continue to be a productive member of society. So that also helps society.

For three, not only will the state save money, but it will also make money. A proportional fine on some of the wealthiest in the state could reap substantial benefits for court so want for the resources it needs (and resources it can’t obtain because many of the same wealthy individuals receive tax breaks from legislators who are representative of two brothers from I don’t know where but definitely not North Carolina).

Equality under the law requires proportionality when the political process otherwise failed. If not through legislation, then perhaps it’s on the judiciary to conduct a “more searching judicial inquiry.” And the political process has failed North Carolina’s less fortunate class members. A $263 fine for someone who does not have that money to spend on groceries is hardly the same punishment for someone who casually spends $263 for their Louis Vuitton undershirt. The law is the same: drive safely. The message is much clearer for one group than the others. This brings me to four.

For four, many of those in society who have felt alienated from the law might now feel closer to society than ever before. That breeds respect for the law – and in turn, it significantly increases the likelihood that they follow the law; and, when they don’t, it substantially increases the likelihood that they will appear for their hearing.

Now I know what you’re thinking. What if cops specifically target the wealthy looking cars on the road because they know it will mean a greater payout for the state and therefore increase their job security?

That’s a great question, but as the state has so wonderfully proven over the years, the subjective motives of the police are unimpeachable. The only standard that matters is the one of the objective, reasonable officer. If you were able to argue a strong case of Affluenza as a defense (it’s happened), who’s to say that a poor person would not then turn around and argue poverty.

The audacity.

But then what if this makes wealthy people alienated from the law like it did poor people? Wouldn’t that just breed their disrespect for the law? Wouldn’t it increase the likelihood that the extraordinarily wealthy would not follow the law?

If such a scenario does materialize, North Carolinians can rest assured that the government will step up to the plate to protect them as well.

Hastings Law & Counsel, PLLC is located in Chapel Hill, North Carolina and serves clients throughout the triangle with a myriad of their legal issues. The firm focuses on providing clients with quality representation while also being aware of the difficulty many face with the cost of legal help. Please call 919-913-4701 or visit to speak with staff or an attorney for more information.

The Undefinable Legal Assistant

I was recently asked by a vendor what I did.  I replied with a laugh because one or two sentences would not cover all of my day-to-day responsibilities.  I believe that most Legal Assistants and Paralegals would have the same response.  So, my answer to him was based on the following skills, abilities and education I, and my fellow Paralegals, possess:

  • Customer Service:  In this era of social media, Internet communications and voicemail, clients still seek a voice on the other side of a phone.  I answer the firm’s phone, email and fax and contact the potential clients to help the attorney get a sense of what is the client’s situation,  It is easy to rely on the ease and efficiency technology provides us, but personal interaction and an empathetic ear is invaluable to someone having the worst day of their life.
  • Technology Support:  The attorney I currently work for admits that he is “technology challenged”.  I am certain there are still  “old school” attorneys who are unfamiliar with the latest communication and research tools available.  So, the ability to organize paper and electronic client files on a back up drive and on the cloud, manage a Google/Outlook calendar, access local rule forms, find court cases and trial dates, to name a few, allows an attorney to maximize his or her time and concentrate on cases.
  • Legal Education:  A knowledge of legal processes, rules, documents, etc., allows a Paralegal to enhance an attorney’s ability to represent clients.  It is not uncommon for an attorney to not be versed in current citation standards, case research methods, standardized web based court documents, etc.  By having this understanding and education, we support the attorney’s effective client representation.

Legal Assistants work behind the scenes with clients, opposing attorneys’ staff, clerk of courts, to name a few, while organizing case documents, fixing equipment and restoring Internet service.  Our ability to create order out of chaos and remain calm under pressure makes us super heroes and vital to successful outcomes for attorneys and clients.

Blog author Margaret Powers is the Legal Assistant to Floyd B. McKissick Jr., Esq. of McKissick & McKissick in Durham, NC.  She is a graduate of Meredith College’s Paralegal Program and have been a state and nationally certified Paralegal since 2012.  Learn more at

Symptomatic Redress vs. Systemic Change: Are we chasing the devil or the prize?

The Challenge
We have more laws on the books than ever and thus the inference is we’ve expanded workers’ rights. But, is this enough? Maybe it’s time for a multi-disciplinary approach, to change the paradigm, as we seek to have these laws enforced. To many, we are treating the symptoms rather than curing the disease. It’s been my experience that both management and employees are concerned about the same things: 1) the employee’s ability to do a job, 2) access to resources needed to do the job, and 3) adequate, equitable measurements and reward for doing a good job. Yet, the manner by which these translate into the workplace is very different, and in response to these differences, litigation has become the mechanism for resolution.
The top reasons for employment lawsuits have more to do with a lack of communication and lack of training than with the law. Some of these include: unfair or unsubstantiated discipline, suspicious timing, and slow or whitewashed internal investigations.
Yet, a lack of accommodations, violation of leave, wage and hour laws are heavily in the midst! There is more confusion than ever around accommodations, compensation and leave issues, which are at the very core of an employer-employee relationship. Integrated workspaces, changing demographics, global competition, baby boomers and millennials present some of the greatest challenges in today’s workplace. And, a growing number of employees seek leave under the FMLA for purposes of taking care of veteran and elderly family members. Additionally, at some point in their life, over 75% of working women in the US will become pregnant. I can recall about 25 years ago, a select few began to seek employee feedback, offered flex time, lactation rooms, child care subsidies and onsite centers. This was the advent of the “work-life balance” movement. Consequently, most of these companies recognized tangible and intangible benefits from their customer base with a higher level of employee loyalty, engagement and profitability.

A Movement is Needed
Today, such a movement is needed. I could provide you with a laundry list of answers to five of the most commonly asked questions including such questions as do you have to share an employee’s personnel file with them? Or, can you change an employee’s shift? But, I prefer to use this space to discuss a larger more global issue, and that is working towards a balanced employee-employer approach that fosters a collaborative versus an enterprise risk management model. Recruiting, turnover and lawsuits are costing both the employer and the employee more than ever. This year alone, major administrative and Supreme Court decisions addressed LGBT rights, same-sex benefits, pregnancy accommodations, dress/appearance and religious policies, wage and hour standards, and compliance with the Affordable Health Care Act. Yet, FMLA and retaliation lawsuits are at an all time high. And not surprisingly, the EEOC reports retaliation as the most common issue alleged and the most common discrimination finding. Studies now show that threat and punishment are the least effective forms of social change and do not result in long-lasting improvement.

An Optimal Solution
The measurement of human capital and outcomes is critical to the bottom line. Some companies are getting it, and some are not. Lowering the bottom line and reporting a human capital line item to investors and shareholders are necessary and encompass a critical metric that correlates with lawsuits, employee engagement and overall profitability. So, what does mean, and what does this have to do with us as lawyers? There is an increasing blur between where HR ends and employment lawyers begin. This presents both overlap and opportunity. In a nutshell, a multi-disciplinary approach that effectively integrates employment law with best practices for human resources into a business model will more fully address the challenges of today.
Tying human resources and employment law into the overall corporate strategic plan, and having an employee rights advocate along with litigation support are needed. This used to be the role of HR, but that is no longer the case. To stimulate and effectuate real change in the workplace, one can no longer afford to focus solely on the employer’s rights, but there has to be a balance of employer rights and employee rights. Applying the law in an agile way and not a perfunctory manner by those who are entrusted to carry out the practices – management, owners and employees, when properly executed will lead not to just improved profitability, but sustainable profitability, increased productivity, retention and a reduction of lawsuits. Systemic change can only come through revolutionary ideas, for which we can play a role in developing. In the rare instances where I happen to be fortunate enough to assist clients with retaining their jobs, or developing an exit strategy, it is clear to me, they almost always prefer to have the option of keeping their job long-term or transferring from a bad environment/manager. But, by the time they get to a lawyer, this is seldom a viable option. Many employees not only need legal representation, but direction and knowledge of their rights and responsibilities. Generally speaking, this doesn’t exist outside of the legal realm. And when I have had the opportunity to speak with management (in a non-adversarial environment), almost always, they would have preferred to have avoided litigation, but see it as a necessary evil with their option of settling as a means to reduce litigation costs. The opportunity exists for us to help shape and implement new workplace strategies that would educate and inform employees and potentially eliminate litigation costs by changing the work environment.

The Call to Action
This requires the changing of mindsets, office politics and corporate cultures. So, at the end of the lawsuit, are lawyers just preparing for the next one, or can they influence their corporate clients to re-evaluate workplace strategies that go much deeper than annual anti-discrimination training? Can plaintiffs’ lawyers work more closely with employees and communities or offer companies an advocacy role for its employees in advance of litigation rather than representing them only in litigation? Is this too revolutionary? The legal landscape is changing, and so exploring innovative ways to add value while leading to systemic change in the workplace will be crucial in the not so distant future. This drives sustainable profitability for companies, job retention and satisfaction for employees, job security and true fulfillment in what employment lawyers do, make a sustainable difference while advancing workplace rights.
Employment outcomes impact so much more than having a job, but one’s employment often dictates access to resources, including health care and housing. For more information on ways individuals and employees can learn more about their rights, go to Maybe it’s time we re-evaluate the strategy, stop chasing the devil and start chasing the prize.

The author: Bartina L. Edwards is based in Charlotte, NC, where she practices employment law and business law in The Law Office of Bartina Edwards. She has a corporate background  and represents the plaintiff in employment actions. She also serves as an Adjunct Professor at the N.C. Central University School of Law where she teaches employment law. (

Following the Money Sometimes Misses the Point

My partners, David Rudolf and Chris Fialko, recently settled a civil rights suit that resulted in an impressive financial outcome for their client.  But beneath the flashy lights of money is a story that is rarely discussed in the aftermath of settlement:  the heartache, the uncertainty and ultimately, the massive relief at the end of a long and painful journey.We are almost numb to this narrative:  our civil rights plaintiff served 11 years in prison for a crime – murder – that he did not commit.  Incarcerated after several codefendants were coerced into falsely confessing to the crime and falsely implicating our client as well, there was also suppression and destruction of exculpatory evidence.

The devastatingly familiar narrative is true.  Our client was sent to prison in October, 2000 after false confessions, a fabricated identification and the disappearance of exculpatory evidence piled up against him and he entered a guilty plea to avoid life imprisonment or the death penalty.  After a two-week trial by a three judge panel of the North Carolina Innocence Commission in September 2011, he was declared innocent.  Last month, more than two years after filing suit in federal court, our client won significant compensation through a settlement among the parties.

More than two years after filing suit.  What happens over that course of time?  How does a person who has spent a decade in prison manage to get his life on track while he waits and waits and waits for what he hopes is a positive outcome?  How does he grapple with knowing that “the system” wronged him so deeply and at times so brazenly, yet be forced to wait for lawyers to file, depose, respond, mediate and strategize?

The facts in the case were meticulously detailed in the complaint.  Had a jury been empaneled, would they have been outraged that the elected Sheriff coerced a confession out of a 16-year-old boy with a history of mental illness?  Would the jurors have been appalled had they learned that that same Sheriff is now serving federal time for extortion?  How would a group of twelve react to learning that critical portions of an exculpatory videotape were erased?  Or that DNA that would have exonerated our client was never gathered – despite a court order to do so?  Those facts never made their way to a jury, but they ultimately made their way to county commissioners and insurance companies who decided that keeping the case out of the courtroom was a better outcome than having the facts aired publicly.

Our client managed to make it through to settlement without compromising any dignity.  He fought fear and uncertainty as the case slowly navigated its way to resolution.  Through the help of a program that lends non-recourse funds to plaintiffs based on the strength of their cases, our client secured a loan to help him with living expenses so he did not have to settle cheap, which was the defendants’ goal.  He also has a supportive family.  But the toll that two years of waiting took was significant.  The sense of loss from being wrongfully convicted – loss of dignity, trust and self-worth – was then compounded by a sense of despair that those who wronged him in the first place were fighting tooth and nail to make him go away for as little money as possible.  And while the result has put our client in a healthy financial position, the pain along the way is the real story.  It is not flashy.  It is not a gripping headline.  But it is the reality of our system that people who are wronged have an arduous, gut-wrenching, seemingly interminable road to resolution.

Blog author Sonya Pfeiffer practices law at Rudolf Widenhouse & Fialko. For more than 30 years, the lawyers of Rudolf Widenhouse & Fialko have built a regional and national reputation for excellence in criminal defense and complex civil litigation in both federal and state courts. Consistently ranked as one of the top law firms in the country, the firm prides itself on dedication to its clients; thorough preparation; and ethical, effective, and fearless advocacy. For more information, visit

Another way to protect yourself and your family while in the car: Underinsured Motorist Insurance

North Carolina motorists are required to buy automobile liability insurance with limits of only $30,000 per person and $60,000 per accident to protect others from their carelessness. Because it’s all that is required, that’s all most people have. That means that most drivers on our highways have policies that will pay, at most, $30,000 for each person injured by that driver’s carelessness, and no matter how many people are injured, the most that the driver’s insurance company will pay is a total of $60,000. If you have been to the doctor’s office or the hospital you know how expensive modern medicine is, and it’s easy to understand that $30,000 is not a lot of money, medically speaking. Moreover, people injured in automobile collisions may be out of work and have lost wages and other expenses. It is easy to see that the insurance required in North Carolina can be woefully inadequate to compensate those injured by inattentive drivers. Fortunately, there is a way motorists can protect themselves from careless drivers who have only minimum limits policies. It’s called Underinsured Motorist (UIM) coverage.

UIM is insurance you purchase. It pays you if you are injured by another driver when that driver does not have enough liability insurance to compensate you for your injuries. UIM coverage is purchased through your insurance agent along with your insurance policy. North Carolina law requires insurers to provide UIM to drivers who purchase policies with liability limits greater than the minimum limits of $30,000 per person/$60,000 per accident. So, if you buy an auto policy with liability limits of $50,000 per person/$100,000 per accident, for example, you automatically will receive UIM coverage in the same amount.

On its face this makes no sense – the accident wasn’t your fault, why should your own insurance company have to pay? Well, this is the world we live in! One of the hardest parts of my job is telling a client that the at-fault driver did not have enough insurance to pay the bills and the client has no UIM coverage to cover the shortfall. The only prudent way for drivers to protect their families is to purchase UIM insurance – and lots of it. I recommend everyone get the maximum, $1,000,000 per person/$1,000,000 per accident. And as far as insurance goes, UIM is quite inexpensive.

Don’t wait to be injured by a driver with a small insurance policy. Talk to your insurance agent about UIM coverage today.

Oxner Permar + Richardson PLLC, a law firm with offices in North and South Carolina, practices Personal Injury, including automobile and trucking accidents, Workers’ Compensation, Multidistrict Litigation, and Social Security Disability law. The firm includes a number of attorneys who are members of the Million Dollar Advocate Forum, a prestigious group comprised of fewer than 1% of all lawyers. Call 1-800-319-900 or visit to speak with an attorney today.