From NCAJ President Vernon Sumwalt and NCAJ Executive Director Kim Crouch
Our eyes, like yours, are watching through tears as the grief, frustration and anger of the oppressed spill into the streets of our cities. Our hearts, like yours, are breaking over the senseless deaths, the continuing pain and the gaping wounds caused by the institutional racism and inequity America has too long embraced.
As our nation and our communities continue to bear witness to the difficult truths that must be told, we want you to know that NCAJ is listening. We are here to help in any way that we can. And after the glass is swept up and the streets are quiet, NCAJ will continue to listen and continue to work to right the wrongs that have led us to this time of reckoning.
North Carolinians who suffer harm while seeking health care during the COVID-19 pandemic will have limited recourse to be made whole by the legal system, thanks to language included in the COVID-19 bill passed by the General Assembly and signed by Gov. Cooper on May 4.
At the request of several health care advocacy groups, the 70-page omnibus bill included an immunity clause that addresses the needs of health care providers and owners of health care businesses but strips patients of the protections normally available to ensure that appropriate care is delivered.
The North Carolina Advocates for Justice worked tirelessly to help narrow this language, while still protecting those serving on the front lines during a pandemic. NCAJ agrees with the need to help front-line health care workers. However, the immunity provided in Senate Bill 704 extends beyond front-line health care workers to provide cover to those in the board room, those who make the decisions that directly affect the lives of patients and front-line workers.
The Supreme Court of North Carolina has issued the latest rulings in a line of condemnation cases brought under the now-notorious Map Act. Members of the NCAJ Eminent Domain section briefed the case of Chappell v. NCDOT (No. 51PA19) as amicus curiae. The case was largely a win for the landowners, but the NCDOT likely gained back some ground, and there are some important asterisks for any pending map act cases looking ahead.
The story began in Cumberland County in 1992 when NCDOT recorded a protected roadway corridor that encumbered the Chappell family’s property for a future road project. Importantly, the Map Act corridors prohibited landowners from improving, subdividing, or developing their property. The Chappells filed an inverse condemnation action in 2014 seeking just compensation for the impact and lost value from the restrictions on their property. Other recent cases (Kirby v. NCDOT and Beroth II v. NCDOT) held that the Map Act restrictions were a compensable taking, and that landowners should recover damages from the indefinite restraint on their property rights. “The value of the loss of those rights is to be measured ‘by calculating the value of the land before the corridor map was recorded and the value of the land afterward, taking into account all pertinent factors, including the restriction on each plaintiff’s fundamental rights, as well as any effect of the reduced ad valorem taxes.’” Chappell, slip opinion, quoting Kirby.
Published in partnership with EndDD.org & the NCAJ Auto Torts & Premises Liability Section
As educators search for diversified digital learning content, local trial lawyers deliver
Local trial lawyers are coming together on May 12 to present a webinar aimed at teaching high school students the dangers of distracted driving. The webinar is being put on by EndDD.org in conjunction with the Anapol Weiss Foundation and Zoom Video Communications.
The webinar, entitled “End Distracted Driving: Keeping Ourselves and Loved Ones Safe After COVID-19,” will take place Tuesday, May 12, at 10am PT/1pm ET. Hosted by Joel Feldman, founder the nonprofit EndDD.org and partner at Anapol Weiss in Philadelphia, PA, the webinar content will focus on the dangers of distracted driving and shifting our perspective to avoid it, particularly ahead of our world’s return to normalcy post-COVID-19.
Let me begin this message by pausing to check on each of you during this COVID-19 pandemic. In this unprecedented time, I know we are all working rapidly to respond to the needs of our clients and colleagues. I hope you are all taking care of yourselves and your families as well.
COVID-19 is not just a public health crisis but also an economic crisis. The days, weeks and potentially months ahead will no doubt bring significant uncertainty to all of you. You will face challenges as you work to preserve your clients’ legal rights and maintain the health of your businesses. I know this pandemic will affect all our members – the backbone of this organization – and I will do all I can to support you, your practices and the legal profession itself.
First, I’d like to address questions about Convention. After lengthy discussions, the members of the NCAJ Executive Committee and I have decided to cancel the NCAJ Annual Convention scheduled for June 18-21. I understand the importance of this annual event as it is a time to swap stories, share practice tips, and foster community. We did not make this decision lightly, but it is paramount that we put the health and safety of our members above all else.
Look for this feature in the upcoming edition of Trial Briefs, exclusively for NCAJ members.
By Amber Nimocks
Hanging around outside an RV on a sunny autumn afternoon, Matt Gambale and his law partners look dressed for a day off – plaid shirts and jeans, Sperry Topsider loafers, no socks. But it’s not casual Friday, it’s pro bono Tuesday. The partners of Osborn Gambale Beckley & Budd PLLC are offering free legal answers for anyone who approaches their mobile office, which today is the RV bearing the firm parked in a busy midtown Raleigh parking lot.
The mobile office and the regular pro bono days, which they do about eight times a month, are part of the new firm’s business plan.
“We rely on karma to make this work for the for-profit side of the business,” Gambale said. “We take care of the community and hopefully they will take care of us.”
On Dec. 16, your NCAJ Board of Governors approved a comprehensive strategic plan to guide the organization over the next five years.
I am grateful to the leadership for setting a course that will modernize and sustain this organization for the future. I want to thank the members of the Strategic Planning Committee for their commitment and dedication to the development of this plan and for their continued oversight of the plan in 2020. I also want to thank Mary Moss and Kim Glenn from moss + ross for their professional guidance and assistance in developing NCAJ’s strategic plan.
In early 2020, I will work with the NCAJ staff to begin addressing and implementing the plan’s action steps. With this strategic plan, NCAJ will be focused on mission, beliefs and goals that will allow this organization to continue protecting people, preventing injustice and promoting fairness.
by Vernon Sumwalt, 2019-2020 President of the North Carolina Advocates for Justice
Trial lawyers are losing the ability to try cases.
Yes, you heard me right. The president of the NCAJ, formerly called the NCATL (remember what the “TL” stood for?) just said that.
Now, I’m not the first to say this. U.S. District Court Judge Joseph Anderson’s Where Have You Gone, Spot Mozingo? A Trial Judge’s Lament Over the Demise of the Civil Jury Trial, 4 Fed. Cts. Law Rev. 99 (2010), expressed concern about the decline of civil jury trials almost a decade ago. North Carolina’s own federal bench has said the same about federal criminal trials. See Conrad, Robert J. & Clements, Katy L., The Vanishing Criminal Jury Trial: From Trial Judges to Sentencing Judges, 86 George Wash. L. Rev. 99 (2018). Why are trials running the way of the dinosaurs? Fewer jury trials means fewer juries. Fewer juries means fewer guards left standing on the last line of our Constitutional system of defense, where our Founders put 12 representatives of our communities—the only unelected ones under our Constitution—to protect the shores of justice from the erosion of popularity, power, and indifference. There are a ton of excuses for this decline: arbitration (and ADR in general), sentencing guidelines, increasing costs of litigation and extensive discovery, inexperience of new lawyers, risk aversion of old lawyers, risks of conviction, dispositive resolutions, the list goes on. Abraham Lincoln, who is said to have tried over 3,000 cases in 25 years as a trial lawyer—about 120 trials a year—didn’t have these obstacles. Neither did most trial lawyers just 30 or 40 years ago.
We, as trial lawyers, cannot excuse this trend to end trials, or else we will lose our Constitution. What’ happened? What can we do to fight back? This is the task of trial lawyer groups — NCAJ included —t oday. To revitalize trial, rebound from this loss, and rebuild our last line of defense for Constitutional integrity. This is our destiny. Who trial lawyers are meant to be.
So, if the hair on your neck stands up or your heart starts to race when I say, “Trial lawyers are losing the ability to try cases,” then good. Very good. It’s time to fight back. We need the fire in your belly to throw NCAJ into hyperdrive to train new trial lawyers. We need you now.
Things are moving at light speed at NCAJ. While gradual, our CLE offerings launch into the realm of practical trial skills on Thursday, September 26, 2019, when William Goldfarb conducts a seminar with two live focus groups in Charlotte. We have a depositions course planned in January 2020 to tackle North Carolina-specific practices and black letter law. Meanwhile, we welcome Mark Kosieradzki to our Sustainer Summit at the Grove Park Inn in October. Koz is a national expert on 30(b)(6) depositions and countering abusive discovery tactics. NCAJ is test driving its first applications for its new focus group program before we open the doors for everyone’s consumption. Our listservs and moot court participants continue to debrief their experiences and share takeaways, so others can experience the ride as close to a “real life” driver’s seat as they can be. We are building better trial lawyers totry cases like they have nothing to lose, because all we have to lose is time.Because the fear of loss holds us back from being who we are and what we are meant to be.
We are trial lawyers.
Vernon Sumwalt is the 2019-2020 President of the North Carolina Advocates for Justice and a partner at The Sumwalt Law Firm in Charlotte. Sumwalt is a North Carolina State Bar Board Certified Specialist in Appellate Practice and Workers’ Compensation Law and has served in numerous leadership positions for both the NC State Bar and NC Bar Association’s workers’ compensation committees and sections.
CARY – Judges and attorneys discussed pervasive gender bias and the possibility of a new CLE requirement that would address matters of inequity – among many other topics – at the inaugural North Carolina Advocates for Justice Diversity & Inclusion Conference Sept. 20 in Cary.
told the crowd of about 50 attorneys that she is concerned that the gender bias
she encountered when she began practicing law in 1988 persists. She recalled
that she would often find herself in a rural N.C. county trying to persuade
others in the courtroom that she was a practicing attorney and not the court
reporter or a legal assistant.
thought that since that was over 30 years ago, that it doesn’t happen anymore,”
she said. “But I have recently heard stories from younger female attorneys who
have had to pull out their bar cards to convince either a sheriff’s deputy or a
judge that they really are an attorney.”
audience members recounted similar instances, and one suggested that the N.C.
State Bar adopt a requirement for a CLE that addresses such issues.
agreed, and pointed to Maine, which requires one annual CLE credit hour that is “primarily concerned with the
recognition and avoidance of harassment and discriminatory communication and
said she had thought adding a program like the diversity and inclusion
conference would be helpful.
all learning more technology as a result of being required to do it,” she said,
referring to the N.C. State Bar technology CLE requirement that became
effective this year. “I see no reason why we couldn’t be required to be
focusing on the fact that racism and sexism still occur in the courtroom far
responded to an attendee’s comment that a new CLE will not necessarily change
hearts and minds by recommending that leaders in the profession call out
instances of bias when they witness them.
is no reason in this day and time that we shouldn’t be bold,” she said. “If we
sense it and believe that it has occurred, we should take just a moment to
address it right then because unfortunately, there are still a number of people
that simply don’t see it. It’s a little difficult to think that’s true, but
they don’t seem to.”
said that when a lawyer decides to speak up about an instance of
microaggression, it is actually giving that person a gift.
are saying that you are invested in them, that you are invested in them being
better citizens of our community,” she said. “They may decide not to take advantage
of the gift that you’re giving them. And you have to let that go if they don’t.”
conference grew from the work of the NCAJ’s Diversity & Inclusion Task Force, now a committee, which
appointed Greensboro attorney Karonnie R. Truzy as NCAJ’s first diversity
officer in 2017. Truzy said the event was part of the committee’s ongoing
commitment to bring awareness to the NCAJ’s need for diversity in programming
thing we really had to get past was getting people to understand that there’s a
need for this,” he said. “Now, we have not only an awareness but an intentional
effort to make the organization more diverse and more inclusive.”
to the panel, the conference included presentations from nationally renowned experts
Lisa Coleman, Chief Diversity Officer for
New York University, and Sybil Dunlop, of Green Espel PLLP in Minneapolis, who spoke
on implicit bias in the legal profession and ways to confront it.