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Monty Ahalt

Matthias Ehehalt (Ahalt) Genealolgy 1731-1775 -The Rest of the Story

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My life is best defined by grace. First, the Grace of my personal Lord and Savior Jesus Christ and Second by the grace of my family especially my wife Sandy and my ancestors without whom I would not be a citizen of the greatest country in the World – the United States of America.

My Great,Great,Great,Great Grandfather Matthias Ahalt (Ehehalt) immigrated to the United States on September 14, 1753 arriving in Philadelphia on the British ship, Edinburgh.What an act of courage this must of been for a 21 year old one week shy of his 22nd birthday. Matthias left the comfort and safety of his family and traveled from Linsenhofen Germany to Rotterdam; then from Rotterdam through Portsmith England to Philadelphia; then to Middletown Valley in Frederick County Maryland where he purchased a farm.

There are records of the Edinburgh, captained by James Russell, from Rotterdam through Portsmith. However,the ship manifest did not include the country and town of origin for each passenger. Tracing Matthias Ahalt’s genealogy in Germany has been at a dead end for many years.

Matthias settled in Frederick County, Maryland marrying Elizabeth Flook in 1757. Mathias died 18 years later on July 17, 1775 at the very young age of 44. Early church and court records in Frederick County use the spellings Ehalt and Ahalt interchangeably. Family members believe Matthias came from a village in Germany – Urspringen. It is located about 40 miles southeast of Frankfurt in the northwest corner of Bavaria. Family members who have traveled to Urspringen reported that the Ehehalts were the predominate family name in the village and were very friendly. The Ehehalts of Urspringen are all of the Catholic faith. No one had been able to document the birth of Matthias.

In 2015 I came across a reference to a Matthias Ehehalt’s family records on Ancestry.com. The record of his birth was in the town of Linsenhofen not Urspringen.Needing some local help to sort this out through local records I searched for a German genealogy consultant.Using good old Google I found Ralf.Stullich a senior researcher at Beyond History. ralf.stullich@beyond-history.com |www.beyond-history.com.

Linsenhofen is located about 217 km south of Urspringen. To make matters a little more difficult there is a small town Urspring about 20 km east of Linsenhofen.

Ralf first gave me a short education on naming conventions in Germany.

“Well in the time period in question children in Germany normally got three first names. One from the parents and the other ones from the god parents.Regarding the different writings of the first name: He (Matthias) was probably born as Matthias (Matthew in English), but in the church during his baptism the priest normally used the Latin form of the name, which is in this case Matthaes. The last name Ehehalt (in different writings) is a typical one in the area in question. Please remember that in those times most of the people were not able to read and write. They just went to the church and the priest or the clerk wrote down the name as he would write it, so you will probably find different writings in the church book entries in this family. As an example: If you would call me and mention your name is Ahalt, I would probably write it Ahhalt or Ahald or Ahhaldt or… There could be different writings of your last name and in German all sounds the same… By the way: The last name Ehehalt (normally “Ehe” means marriage and “halt” means stop) comes from the “middle high German” word Ehalt and that is nothing else but a domestic/servant.”

Since family reports had Matthias living in Urspringen while another reference had him living in Linsenhofen I asked Ralf to do a search of records in both Urspringen and Linsenhofen for birth and death records. If birth records existed then that would settle where Matthias lived. If death records existed then that would exclude Matthias from immigrating to the US. On the other hand if no death records existed that would probably confirm that Matthias had immigrated to the US.

There were no records of the birth or death of Matthias in Urspringen but there was a record of the birth of Matthias in Linsenhofen but no record of his death. Thus it is reasonable to conclude that Matthias was born in Linsenhofen and immigrated to Maryland in 1753. As we say in the courtroom – the evidence established this fact by “clear and convincing evidence”.

Matthias’ birth/baptism records in Linsenhofen were found in the St George Lutheran Church as were records of 5 more generations of Ehehalt’s dating to 1591.St George’s was built in 1425 and has undergone many renovations but has been pointing the way to Jesus for 7 centuries. That Jesus is a major part of the Ahalt/Ehehalt heritage is without question and well documented in the Baptism records maintained to this day.By grace I am the beneficiary of this heritage almost 600 years later.

I have now been able to trace the families roots in Germany back to the 1500’s and unlock the Urspringen road block. And in the words of Paul Harvey “the rest of the story”

Hans Ehehalt (1591 – )

Jerg / George / Georgius Ehehalt (1626 – 1683)

Michael Ehehalt (1651 – 1692)

Hans Martin Ehehalt (1679 – 1746)

Johannes Ehehalt (1706 – )

Matthias Ahalt / Ehehalt (1731 – 1775)

Jacob John Ahalt (1768 – 1834)

Matthias Ahalt (1803 – 1881)

Joshua Dawson Ahalt (1843 – 1933)

Alonza Ahalt (1878 – 1954)

Arthur Montraville Ahalt (1907 – 1958)

Arthur Montraville Monty Ahalt Jr (1942 –

And now we add two more generations blessed by the same grace that I have been blessed by – My sons Kevin Montgomery Ahalt and Brent Montraville Ahalt and his sons Justin Daniel Ahalt and John Patrick Ahalt.

In the summer of 2015 I was blessed to travel to Linsenhofen with my two sons – Keven and Brent and grandsons – Justin and John. We visited the
the St. George Lutheran church whcih is still functioning as a place of worship
Monty

What You Should Know About Online Dispute Resolution

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What You Should Know About Online Dispute Resolution

 

Hon. Arthur M. Monty Ahalt (ret.)

 

Online dispute resolution (ODR) has all of the advantages of other forms of ADR—and it is faster and more cost-effective.

 

Less than 15 years ago the legal community struggled to implement alternative dispute resolution (ADR) into the case management programs of federal and state trial courts. This effort was largely motivated by overcrowded trial dockets which allowed cases to remain pending four and five years before a trial date. Now ADR is an accepted component of most case management programs of any trial court and reaches into almost every segment of our lives. Schools, prisons, communities, businesses, consumers, and families now have ready access to alternative dispute resolution training and specialists. Many state courts have established conflict resolutions programs such as the highly effective and award-winning Mediation and Conflict Resolution Office (MACRO) of the Maryland Judiciary. See http://www.courts.state.md.us/macro/.

ADR has been around in commerce since the 1920’s and the founding of the American Arbitration Association. Many date ADR to biblical times and King Solomon. Originally the focus was on providing commercial entities with alternatives to adjudicating their disputes in the court. During the next eight decades many barriers have been overcome; however, the paper- based alternatives of the past that paved the way for ADR have become expensive and time- consuming: in some cases it’s as if a new ADR bureaucracy has replaced the old judicial bureaucracy. Although face-to-face and paper-based alternative dispute resolution is not as time- consuming and expensive as litigation in the courtroom, the time and expense of paper and face-to-face meetings denies many parties the opportunity of a fair and neutral resolution of a genuine dispute.

The ability of technology—especially the Internet—to make many business processes more efficient is now making it clear that online dispute resolution (ODR) is the next frontier of ADR. The internet promises to make more disputes reachable by ADR and to facilitate the resolution of disputes faster and at a lower cost. But like many shifts from paper to technology, a clear strategic pathway has yet to appear.

 

WHAT IS ONLINE DISPUTE RESOLUTION ? • ODR provides the ability for two (or more) disparate parties to settle their dispute using the Internet. Sometimes this involves lawyers and mediators and sometimes it does not. It depends on the vehicle/provider that the parties agree to utilize to resolve their claim.

 

History Of Online Dispute Resolution

The concept of ODR has been discussed in academic circles since the mid 1990’s. See www.odr.info.Professor Ethan Katish was a leading researcher and developer of concepts of ODR. From 1997-1999, Professor Katish mediated a variety of disputes online, involving domain name/trademark issues, other intellectual property conflicts, disputes with Internet Service Providers, and others. In the spring of 1999, he supervised a project with the online auction site eBay, in which over 150 disputes were mediated during a two week period. During the summer of 1999, he co-founded Disputes.org, which later worked with eResolution to become one of four providers accredited by ICANN to resolve domain name disputes. He is also an adviser to SquareTrade.com, an Internet start-up focusing on online ADR. There are over 20 internet companies listed on the ODR.info site which provide ODR online services.

As a Judge of the Circuit Court for Prince Georges County, Maryland in conjunction with my activities directing the nation’s first electronic filing pilot project and managing the courts civil docket I realized that dispute resolution could be aided by the Internet. The ideas were first published in a series of on-line articles by VirtualCourthouse beginning in 1996. See http://montyahalt.com/category/original-virtualcourthouse-articles/.  VirtualCourthouse.com™ was founded in 2001.

The VirtualCourthouse dispute resolution process models a court dispute resolution process delivered on the Internet using Web-based technologies:

A case is initiated and a list of Neutrals is selected and the Neutrals are ranked;

A system generated email is sent to the other party, inviting them to join the case;

The other party joins the case and a Neutral is agreed upon;

The Neutral reviews the case initiation, and sends an email to both parties, confirming the type of proceeding and the fees;

The claimant prepares a case presentation and uploads the scanned documents into the online case;

Once complete, a system generated email is sent to the respondent, advising them the claimant has completed their presentation, and now it is time for them to submit their case presentation;

Once the case presentations are complete, a system generated email is sent to the Neutral advising them to review the evidence and render a decision;

Once reviewed, a verdict is submitted online, and a system generated email is sent to both parties notifying them a verdict has been rendered.

 

VirtualCourthouse creates a marketplace by recruiting the neutrals, administering the electronic case file, and providing access to the system to members of the plaintiff and defense bar, including insurance staff counsel, claims agents, and the parties. It also VirtualCourthouse provides an independent forum by enabling parties to select qualified neutrals (typically judges or attorneys with specific experience), submit digitized materials, schedule an ADR event and track other activities throughout the effort to resolve the claim. Critical to the design of this service is its neutrality: VirtualCourthouse impartially facilitates neutral selection by providing structured communication among parties via a controlled and secure message service. Any party can attach digital exhibits such as digital photographs or scanned images of medical records. The Neutral can use the message service to communicate with parties. VirtualCourthouse streamlines every step in the process and minimizes the need and costs of unnecessary face-to-face meetings, mailing, and copying.

The VirtualCourthouse Dispute Resolution Engine (DRE) is a combination of multimedia technologies and business processes, integrated with a customer-friendly user interface. The DRE replicates the current process of dispute resolution in an online environment, removing constraints of time, expense and distance. The engine is a sequence of events utilizing Internet-based media technologies that are designed to resolve conflicts between two or more parties. The DRE enables the resolution of disputes by functioning as a middleware to connect the disparate business processes of attorneys, claimants and neutrals. The DRE permits the exchange of data between these business processes which would otherwise lack the technology interfaces essential to working together electronically. The engine, centralized through VirtualCourthouse.com™, is the electronic “glue” that binds these users of otherwise unrelated systems into a virtual private data and business process network.

The Internet creates an online marketplace for dispute resolution by bringing together parties with disputes and neutrals seeking a storefront for their services. Registered users are able to visit the “virtual” court 24/7, review the docket and conduct any proceedings under way. Lawyers are able to check on the status of their cases, view documents and make filings at any time. Case administration for the parties and the neutral by a case administrator is minimized as case administration activities are automated through the virtual private data and business process network

 

How Can ODR Help ADR?

ODR promises to enable ADR to become more efficient, faster and less expensive. By achieving those three improvements ODR will make ADR a real alternative to a greater number of disputes thereby bringing all of the advantages of ADR to a greater number of people. An examination of the ADR process and barriers to ADR will allow a deeper examination of the potential of ODR. The ADR process usually unfolds this way:

One party decides to pursue ADR, an existing agreement requires it, or a court or other authority requires it;

A neutral is selected. (This can be by suggestion and negotiation of the parties, identification of the neutral in an exiting agreement, or appointment of the neutral by a court or other authority);

The parties provide the neutral with written documentation of their respective positions;

An ADR session is scheduled;

An ADR session is held and conducted; and

A decision or report is rendered by the neutral.

 

Each of these steps can be automated by technology and the Internet. The goal of ODR is to reduce the time and cost of each step thereby making it available to greater number of people.

 

Change, Not Technology

The adoption of technology by businesses and individuals over the last two decades is astounding. Just 10 years ago managers of the nation’s largest law firms were struggling to get their lawyers to put computers on their desks and then actually use them. One manager of a firm found a creative strategy. He announced at a firm meeting that he was conducting a pilot to determine how best to use a computer in the practice. He was going to conduct the pilot with the 10 brightest lawyers in the firm. Anyone who was interested was advised to call his office. One by one, every lawyer in the firm called, and as soon as they did, a computer showed up on each lawyer’s desk. Adoption of the computer in the everyday life of that firm was well underway.

Today only a few laggards in the legal profession fail to use a computer. Interestingly enough, the leaders are not always the younger generations as many senior lawyers lead the way. Take Judge Richard Rombro, a retired Judge in Maryland (having been forced to retire because the Constitution requires retirement at age 70). Judge Rombro managed the entire asbestos docket for the Circuit Court for Baltimore City using Lexis-Nexis File and Serve—sometimes even from his winter office in Florida. The legal profession has fully embraced technology including the Internet to help become better lawyers. Those who have not embraced technology are losing the competitive battle.

So why is it that disputes are still largely resolved with a dependency on paper and face-to-face meetings? It is all about change. Old ways are not put aside easily. Who hasn’t heard a lawyer say, “I know that is the way it will be done in the future, but I am not going to change now.”

Change requires strong and great leadership. And great leaders always have a vision, a strategy, and they are enthusiastic and work really hard. I learned these attributes of leadership from basketball great Jim Valvano. I was riding in my car to a Maryland basketball game against North Carolina State listening to Johnny Holiday’s pre-game radio show. Johnny was interviewing the State coach Jim Valvano. Valvano had just won a National Championship the year before. Shortly into the interview Johnny ask Coach Valvano what his secret to success was. Coach Valvano said rather nonchalantly and quickly, “Well Johnny you have to have a vision, then a strategy and you have to be enthusiastic, then you have to work like crazy to make sure that you accomplish the vision.” Coach Valvano said that his vision was to win the game on a shot at the buzzer. His strategy was to get to the last two minutes of the game no more than six points down. He was sure that his team could play strong enough defense in the final two minutes to make sure the other team did not score and he was sure his team could execute and score over that relatively short period of time. Sure enough over the years Coach Valvano executed his plan for success and he wound up being one of the most successful coaches. His life was cut short by a tragic and fatal fight with cancer, but the coach never gave up. His lesson and legacy will live on for years. Valvano’s formula for success has four parts: vision, strategy, enthusiasm, and work. In developing a strategy it is essential to identify the barriers. The following are but a few:

The neutral “needs to see the parties”;

Scanning and uploading documents;

“It’s easier to do it the old way:; and

“My computer is too slow.”

 

As VirtualCourthouse approaches the 1,000th case filing it has become obvious that ODR requires adoption by three separate constituencies—the claimant, the respondent and the neutral. Much like a stool, if one leg is absent the stool falls. Thus, the challenge of change is multiplied or as the mathematician might say—“cubed.”

Most all practitioners have successfully overcome the barriers to change which were presented with the advent of court ordered ADR in the 1990’s. The benefits have become obvious: time savings, cost savings and “resolution satisfaction.” Yet the court dockets keep growing so much more remains to be accomplished.

Students of the dynamics of change will testify that change does not occur unless there is leadership, strategy, and management. Over the past four years VirtualCourthouse has demonstrated that technology can elevate ADR to higher levels, but it requires the participation of all three legs of the stool: the claimant, respondent, and neutral. Leadership is key and the leaders in each constituency are stepping forward as the pioneer’s did and they are establishing new territory.

Eric Frye, a lawyer in Upper Marlboro, Maryland, continues to file his cases in VirtualCourthouse before he files in Court. Jeff Wigodsky with Karp Frosh, in Washington, D.C. has successfully adopted the same policy. Several insurance claims department have successfully integrated VirtualCourthouse into their claims examiner training process. The neutrals have had an easier time adopting as Judge Vincent Femia, Alan Feld and Cy Pickens will attest. The common denominator with all of these folks is their ability test the vision of VirtualCourthouse and overcome the reluctance to change.

Most people are risk-averse and they therefore resist change. “I have been doing just fine without all of this technology” is a familiar refrain. However, the evidence now is overwhelming that ODR will pay significant dividends to those willing to give it a try. The VirtualCourthouse team does a formal evaluation on every case filing and the results are truly exceptional. Over 90 percent of those responding are “very satisfied”—a “5” on a five-point scale—with VirtualCourthouse as a method of dispute resolution. About 90 percent are also “very satisfied” with the customer service. Now this does not mean that everyone is thrilled with the result, because as in all dispute resolution, expectations are not always achieved. And yes, there are occasional “technological” glitches and challenges. But that is where the ODR provider excels by its experience in overcoming these challenges. Even in the “paper world” not all is perfect and there are occasional problems and challenges to overcome. Who hasn’t had the experience of a paper file that has been lost or destroyed or a letter that was somehow lost in transit?

 

WHAT WORKS BEST IN ODR? • In developing a strategy to successfully implement an ODR project it is helpful to analyze what has been successful. What is becoming clear is that certain case criteria lend themselves to online activity, while other criteria lend themselves to the physical or “bricks-and-mortar” world.

Online activity works best when there are only two parties and when the substance of the dispute is only monetary. ODR also has been effective when the dispute arises out of Internet commerce. ODR is difficult when there are many parties, the substance of the dispute is emotional or there is a large amount of money in controversy.

Square Trade has handled thousands of disputes which have arisen between the buyer and seller of goods on eBay. Using this online solution a neutral mediates the dispute in an online chat format. While Square Trade no longer offers ODR for eBay it demonstrated that ODR is a viable and effective alternative.

Cybersettle has successfully settled thousands of disputes, mainly involving personal-injury claims. Using the Cybersettle online process, the parties submit blind monetary demands and offers and agree that if they are within certain limits the case is settled at the midpoint of the last demand and offer.

The American Arbitration Association has settled several thousand cases digitally, but it still remains a very small percentage of the AAA caseload.

VirtualCourthouse.com™ has successfully settled hundreds of personal-injury, real estate, construction and contract claims through an online binding arbitration process. The parties select a neutral though an online negotiation. Once the neutral is selected each party presents their case online – uploading supporting medical bills, doctor reports, pictures and other relevant evidence. The neutral then reviews the presentations and renders a binding decision.

Neutral-Focused ODR Providers

Services like VirtualCourthouse.com specialize in providing neutrals a market place in addition to taking the parties through the entire ODR process. VirtualCourthouse.com comes closer to mimicking the actual court process than most of the services outlined above. VirtualCourthouse allow exhibits and supporting materials to be submitted electronically and case information is shared among the parties and the assigned neutral in a secure environment. The lowest cost for a simple case brought to VirtualCourthouse.com is less than $400.When shared by the parties that results in a dispute resolved for $200 a major cost saving to either ADR or court.

Mediate.com is a site that helps one locate a mediator in a particular geographical area and practice type. Unlike the VirtualCourthouse.com outlined above, Mediate.com does not offer a Web interface to enable one’s case to be submitted and adjudicated online.

 

Paper-Based Organizations In Transition

The American Arbitration Association offers a lot of information on their Website, including PDF forms. You have the ability to file your case electronically through AAA Webfile. The AAA offers both mediation and arbitration services and is the oldest ADR organization outside of the courts in the U.S.

JAMS, founded by Hon. H. Warren Knight in 1979, provide mediation and arbitration services across the country. They specialize in a variety of claims including bankruptcy, mass tort and international. The JAMS Website allows the visitor to file an initial claim and select a location and neutral. But beyond that, JAMS does not offer the automated case monitoring that the other services outlined above do.

 

Regional ADR Service Providers

There are several regional ADR providers, like ADR Systems of America, LLC, headquartered in Chicago. ADR Systems has many retired Cook County Circuit Court judges on their roster of neutrals and specialize in complex personal injury cases. The ADR Systems’ Web interface is limited but they focus on being a regional provider and therefore the need for automation is not quite as great as in a case involving geographically diverse parties.

Other ODR Providers

The ElectronicCourthouse.com, run by a Canadian company called iVentures, provides services to companies that must offer dispute resolution. They specialize in companies that manufacture and distribute internationally.

 

Developing A Successful Strategy

Transferring an existing process from the bricks-and-mortar world to the Internet is a daunting undertaking. The process is fraught with barriers of change involving multiple parties and multiple processes. Developing a strategic approach is therefore essential. It is similar to “eating an elephant”: You do not want to plan this event for one meal or you will surely fail. You need to start small but you need to start. It is necessary to strategically identify a starting point where the existing barriers are not overwhelming and where efficiencies of online business will bring the greatest bottom line result.

 

CONCLUSION • The last 50 years have seen enormous growth in the use of ADR. The growth has been championed and led by the judges and the lawyers of the many state courts. Judges have led the way by incorporating ADR in case-flow management, adopting standards and criteria for the certification of neutrals. Lawyers have led the way by forming professional organizations and adopting ethical standards. ODR promises to take ADR to the next level: meeting the dispute resolution needs of a greater number of people in a way that is both faster and less expensive. By using a technologically sophisticated process over which they have substantial control, litigants will have greater confidence in the legal community and experience a higher level of justice.

 

 

PRACTICE CHECKLIST FOR

What You Should Know About Online Dispute Resolution

The ability of technology—especially the Internet—to make many business processes more efficient is now making it clear that online dispute resolution (ODR) is the next frontier of ADR.

 

The VirtualCourthouse dispute resolution process models a court dispute resolution process delivered on the Internet using Web-based technologies:

__ A case is initiated and a list of Neutrals is selected and the Neutrals are ranked;

__ A system generated email is sent to the other party, inviting them to join the case;

__ The other party joins the case and a Neutral is agreed upon;

__ The Neutral reviews the case initiation, and sends an email to both parties, confirming the type of proceeding and the fees;

__ The claimant prepares a case presentation and uploads the scanned documents into the online case;

__ Once complete, a system generated email is sent to the respondent, advising them the claimant has completed their presentation, and now it is time for them to submit their case presentation;

__ Once the case presentations are complete, a system generated email is sent to the Neutral advising them to review the evidence and render a decision;

__ Once reviewed, a verdict is submitted online, and a system generated email is sent to both parties notifying them a verdict has been rendered.

 

The VirtualCourthouse Dispute Resolution Engine (DRE) is a combination of multimedia technologies and business processes, integrated with a customer-friendly user interface. The DRE replicates the current process of dispute resolution in an online environment, removing constraints of time, expense, and distance. The engine is a sequence of events utilizing Internet-based media technologies that are designed to resolve conflicts between two or more parties.

 

ODR works best when there are only two parties and when the substance of the dispute is only monetary. ODR also has been effective when the dispute arises out of Internet commerce. ODR is difficult when there are many parties, the substance of the dispute is emotional or there is a large amount of money in controversy. Providers include:

__ Square Trade;

__ Cybersettle;

__ The American Arbitration Association;

__ VirtualCourthouse.com™ (which comes closest to mimicking the actual court process);

__ Mediate.com;

__ JAMS;

__ ADR Systems of America, LLC;

__ The ElectronicCourthouse.com, run by a Canadian company called iVentures.

 

This Article First appeared in Practical Litigator – March 2009

 

Hon. Arthur M. Monty Ahalt served as an associate judge on the Circuit Court for Prince George’s County, Maryland from 1982 until his retirement in 1999. He served that court in many capacities including civil case management coordinator. Since his retirement he has been recalled to sit on specially assigned trials. He also is an active mediator, arbitrator and neutral case evaluator and serves as CEO of VirtualCourthouse.com™. For more detailed information see http://montyahalt.com/aboutmontyahalt.html. Substantial portions of this article have been previously published at the 2008 American Bar Association Tech Show presentation On Line Dispute Resolution Where We Have Been and Where We Are Going, by Judge Arthur M Monty Ahalt (ret.) and David Glynn. See www.MontyAhalt.com.

Oh My Aching Back ! Tension Myositis Syndrome – TMS

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Oh My Aching Back !

Tension Myositis Syndrome – TMS

One of the most frequently tried personal injury case before a jury is the muscle strain to the neck or back which does not respond to traditional medical treatment and get better in 10 to 16 weeks. The plaintiff continues to have severe recurrent episodes of pain and goes through extensive diagnostic testing and pain management protocols and is still left with the same severe recurrent episodes of pain. All diagnostic testing is negative for permanent injury and the pain management protocols while providing temporary relief – the episodes continue to recur. It is not uncommon for the medical bills to total in excess of $30,000 and treatment to extend over several years. The plaintiffs usually are sincere individuals and family, friends and co-workers attest to the debilitating effect of the recurrent episodes of pain and changed life style of the plaintiffs. Yet juries rarely compensate these injured individuals more than several times medical expenses and frequently render verdicts of medical specials only. I have experienced these results in trials conducted in my court room well over 100 times. Typically the defendant has a highly qualified orthopedic surgeon or neurosurgeon testify that there are no objective tests which would support a casual connection between the accident and the plaintiff’s complaint of pain. To make matters worse for the injured plaintiff they are left with these painful conditions for perhaps the rest of their life. They feel tremendously let down by the system of justice and lawyers and many times become very bitter.
This same scenario troubled a young New York City orthopedic surgeon in the 1960’s – Dr John E Sarno. Dr Sarno then began a lifelong quest and study to provide help for these individuals. His study led him to a new medical diagnosis – Tension Myositis Syndrome or TMS. Basically this diagnosis was a recognition that tension is a cause of muscular pain. It should be noted that this diagnosis is distinguished from hypochondria and a purely psychological disorder. Thus while TMS is induced by an emotional phenomena it is a physical disorder. The muscles and tissues actually spasm and therefore cause pain. The medical community has difficulty recognizing and making the diagnosis. The psychologist may suspect that the patient’s symptoms are emotionally induced, but is untrained in physical diagnosis. On the other hand since very few orthopedic physicians are trained to recognize a disorder whose roots are psychological, TMS ″falls through the cracks″ and patients go undiagnosed. This leaves the patient vulnerable to being labeled – that the pain is ″all in the head″.
The lawyer then has an opportunity to help his client even though the system of justice seems to have failed by directing his client to TMS resources. After all the first objective of a lawyer is to make sure the clients gets the best possible medical care.
Fortunately, Dr Sarno has written several books and trained a subsequent generation of physicians – most notably Dr. David Schechter – who are capable of providing treatment for this perplexing and frustrating condition. Still, broad acceptance in the medical community does not exist and many individuals are ″left standing at the altar″ by the medical community. In the thousands of cases which I have evaluated and listened to testimony at trial I have yet to read or hear of a TMS diagnosis or referral. At best a physician will suggest that psychological counseling might help.
TMS treatment generally consists of a two pronged approach:

  1. The acquisition of knowledge and insight into the nature of the disorder.
    2. The ability to act on that knowledge and thereby change the brains behavior.

Dr Sarno suggests the following steps.

  1. Think psychological not physical. With good reason this is possible since the medical community has run all of the tests and concluded that there is no physical disorder. So why then does the pain not immediately disappear?
  2. “pity me that the heart is slow to learn – What the swift                mind beholds at every turn” ( last two lines of a         poem by Edna St. Vincent Millay)
  3. Talk to your brain.
    3. Resume physical activity.
    4. Discontinue all physical treatment
    5. Review the daily reminders.
    6. The pain is due to TMS, not a structural abnormality.
    7. The direct reason for the pain is mild oxygen deprivation.
    8. TMS is a harmless condition caused by my repressed emotions.
    9. The principle emotion is anger.
    10. TMS exists only to distract my attention from my emotions.
    11. Since my back is basically normal there is nothing else to fear.
    12. Therefore, physical activity is not dangerous.
    13. And I must resume all normal physical activity.
    14. I will not be concerned or intimidated by the pain.
    15. I will shift my attention from the pain to emotional issues.
    16. I intend to be in control – not my subconscious mind.
    17. I must think psychological not physical at all times.

The Mind Body Perscription
Here is a list of study resources that are a must.
See the Links at the Bottom of the Page

The Mindbody Prescription: Healing the Body, Healing the Pain by John E. Sarno M.D. (Paperback – Oct 1,
The Divided Mind: The Epidemic of Mindbody Disorders by John E. Sarno (Paperback – Mar 27, 2007)

Healing Back Pain: The Mind-Body Connection by John E. Sarno (Paperback – Feb 1, 1991)

The Mindbody Prescription: Healing the Body, Healing the Pain by John E. Sarno (Kindle Edition – Mar 15, 2001) – Kindle Book

The MindBody Workbook by David Schechter M.D. (Plastic Comb – Nov 1, 1999)
The MindBody Audio Program by David Schechter (Audio CD – April 15, 2001)
New Title 1 (The MindBody Workbook) by MD David Schechter (Kindle Edition – Jul 15, 2008) – Kindle Book
The MindBody Workbook with Patient Panel DVD by David Schechter (Plastic Comb – Oct 1, 2004)

Monetizing Risk

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Personal Injury Risk Evaluation is a multi step process. But the ultimate result of that multiple step process is to put a dollar value on the risk – monetizing the risk. The first step is to identify each issue that will be presented to the jury on a jury verdict sheet. So let us look at a frequently occurring verdict sheet – a rear end motor vehicle accident.

Here are the essential facts of our practice case.

REAR END

SOFT TISSUE DAMAGE

UNDER $1,000 PROPERTY DAMAGE

$4,000 MEDICAL TREATMENT

$2,000 MEDICAL DIAGNOSTIC

$8,000 PHYSICAL THERAPY

$1,000 WAGE LOSS

5% PERMANENT DISABILITY

 

Verdict Sheet

1.Was the Defendant negligent? Yes___ No___

2.Was the Plaintiff negligent? Yes___ No___

3.In what amount do you asses damages?

Loss Wages___________

Medical Expenses____________

Pain and Suffering____________

 

In order for the jury to consider damages the plaintiff must get a yes to the first question and a no to the second question.

 

The process of evaluating a case needs to be disciplined and organized. You want to accurately identify all RISK factors that will affect your recovery. There are positive and negative risk factors. Positive factors increase the value of your case, while negative factors decrease the value of your case. Both are important and you do not want to miss any. And then there are factors which would on the surface appear to affect the value but do not — the red herring factor. A word of CAUTION. You cannot — I repeat cannot – properly evaluate  a case until you know all of the facts which are relevant to the issues of liability and/or damages.

 

Liability factors should be evaluated first. The goal here is to determine what your chances are of getting a plaintiff’s verdict. Is it 25%, 50%, 75% or 100%? If it were less than 100%, prudence would dictate that you reduce the amount for which you would settle the case. In our practice case a rear end accident you can say that you have a 95% chance of a verdict on liability. Why not 100% – because you can lose that battle or rare occasions.

Now lets us look at our practice Case.

 

Liability. There is no evidence that the this rear ended was caused by other than the defendant’s negligence. So we can say that the plaintiff has a 95%- 100% chance of a verdict on liability.

 

Damages. The only question on damages is how much the claimant will be awarded for pain and suffering. Tracking jury results would reveal that in 8 out of 10 verdicts the pain and suffering award for this type of case would be about equal to the medical expenses or $14,000. So the range of a verdict would be $26,000 to $20,000. With regard to the permanency rating juries and judges generally are not persuaded that this type of collision causes a permanent injury even when a doctor gives a permanency rating.

 

Does it matter whether the case is tried in a  liberal or conservative jurisdiction? Generally there is very difference with 80% of the verdicts. The exceptions (the 20%) however break against the plaintiff in the conservative jurisdiction but against  the defendant  in the liberal jurisdictions.

 

Personal Injury Jury Trial Risk Evaluation

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Personal Injury claim formPersonal injury jury trial risk evaluation begins as a claim for personal injury is processed through the claim process with the insurance company.During this process a lawyer begins to evaluate the strengths and weaknesses of the claim. This process is mostly directed at finding accurate information about the claim – eyewitnesses, medical expenses, medical opinions and the like. When a claim matures to the point that all the relevant information is known a process of evaluation begins – what is the claim worth. Generally speaking a claim is worth what a jury will award the claimant.

Trying to figure out what six folks – the jury – will do seems so impossible that it is not worth the effort. After all we do not even know who the six jurors will be. Will they be young or old, conservative or liberal, employed or unemployed – it is just not known until the final six are in the jury box and the case begins.jury

My quest for this type of knowledge began in 1967 , the year I graduated from law school, when I began clerking for Judge Ralph W. Powers and Judge J. Dudley Digges in the Circuit Court for Prince George’s County, Maryland.

Every trial lawyer wants to know what a jury might do in her next case – and a client desires to know to a greater extent.After clerking for Judge Powers and observing many jury trials I began to represent clients and actually try cases – some successfully and some not so successful. I was appointed as a Judge in 1982 and began trying cases in my courtroom. The Circuit Court for Prince George’s County had a very active settlement conference practice which I participated in – 5-7 conferences each day. Fortunately I had three much more experienced colleagues to guide me through this process – Judges McCullough, Blackwell and Levin. Every day at lunch we would discuss the day’s docket and I would ask them a thousand questions. Patiently, they would detail their collective experience.

Then in 1986 I began to record each verdict of our court – 13 judges( now 23) – several hundred verdicts each year. Over the years I have recorded over 5,000 verdicts and reported many of them to the bar.See Maryland Trial Verdicts.Very soon after I began this recording process it became very obvious that certain liability scenarios and personal Injuries were comprising the vast majority of the verdicts.

On the liability side these types were frequent – left hand turns, lane changes, snow and ice , slip and fall. On the injury side these types were frequent – sprains and strains, neck/back, pre existing conditions, knees/shoulders, broken bones, death.

Because these various types were frequently occurring it became pretty obvious that there were patterns of results. The patterns then served as a guide when trying to figure out how to avoid losing a case by entering into a good settlement. In future posts I will go into some of those patterns in detail.

Good lawyering also becomes a material part of the evaluation process. I often tell lawyers asking my advice on lawyering skills that usually  a bad lawyer cannot screw up good facts/law and a good lawyer cannot rescue bad facts/law. All though the great lawyers occasionally break this rule of thumb.

Recently the Grandson of one of those great lawyers appeared in a settlement conference and I told him a story of his Grandfather that occurred while I was clerking for Judge Powers in 1967.His Grandfather was trying a premises liability case where there was no evidence of actual notice to the landlord of a dangerous condition that caused the plaintiff to fall and be injured. During the trial a great deal of time had been spent describing the circumstances surrounding the condition that caused the fall. Circumstances such as how long the liquid had been on the floor, how visible the liquid was, how many people passed the liquid before the fall. At the end of the plaintiffs case the defendant moved for a directed verdict on the grounds that there was no evidence that the landlord knew that the liquid was on the floor – there was no actual notice. Judge Powers was about to grant the defendant’s motion and the plaintiffs lawyer from Baltimore, Marvin Ellin, pleaded with Judge Powers that while the current law favored the defendant the correct law was that of constructive notice. It was late in the day and Mr Ellin pleaded with Judge Powers to give him the overnight recess to provide a legal memorandum supporting his position. Reluctantly, Judge Powers agreed.

When I got into the courthouse before 7 AM the next day Mr Ellin was there in the hallway waiting for the door to be open with his freshly typed 20 page memorandum. Judge Powers arrived shortly and when he returned to the courtroom the defendants motion was denied. Later in the day a $50,000 plus verdict was returned for the plaintiff. Now that is great lawyering. It was several years later that the Court of Appeals of Maryland ruled that the doctrine of constructive notice was applicable in premises liability cases. (Regretfully, Marvin Ellin recently passed away)