The Felonies First Program in Superior Court

The Superior Court system in New Hampshire has been several years in implementing a Felonies First criminal program.  This space has written about the proposed change in the past.  It has finally come into being.  Essentially, the program does away with the probable cause hearing process and sends felonies to the Superior Court for first contact with the court system.  The theory is that the time spent in the District Court with arraignments, bail hearings and probable cause hearings is wasted time.  It is more efficient, the reasoning goes, to head felonies directly to the Superior Court.

The program has been in place for several months and has met with mixed success.  There has been a period of adjustment where the county prosecutor’s office has had to respond to requests for discovery and evaluate the case.  The true advantages and disadvantages of the system have been exposed.  The only advantages are that the process moves much more quickly.  In those cases that are very simple and the outcome is easily agreed upon, this saves time.  In all other cases there are problems that will take some time to resolve.

Felony cases are serious matters with serious consequences.  The minimum exposure for someone charged with a felony is 3½ to 7 years in the New Hampshire State Prison plus a fine.  That is no small matter.  In the former system, these cases would be discussed between the local police prosecutors and defense counsel.  They have an opportunity to see if the matter might be resolved as a misdemeanor or even a violation.  Decisions made by the police on the street with respect to charging is often done without any opportunity to reflect and think the decision all the way through.  The process of having an arraignment and bail hearing before probable cause hearing 30 days later gave the State a chance to see what the facts of the case really were and what the proper charging decision should be.  That opportunity for a non-superior court resolution to the case has now been taken away.  Instead, that period of reflection and communication with the arresting police department must take place after there has already been an arraignment in the Superior Court.

The Grand Jury process and its relative the probable cause hearing have been pretty much dispensed with.  While both procedures had a cost, they also gave defendants an extra measure of due process that would allow abuses of state discretion and “close calls” to be weeded out.  There were often times cases that probably would not have survived the reasonable doubt standard were stopped in the Grand Jury or probable cause system because the facts to support of probable cause was questionable.

Time will likely cause the system to adjust to the new way of doing things so that the delay for reconsidering the form of the charge and how it fits the facts to be attended to Superior Court.  The transition period will take some time.  It is hoped that those compromises of the rights of the accused will be corrected as well.  If not, this attempt at judicial economy will result in far more problems than it solves.

By: Kent Barker

Attorney Kent M. Barker practices Personal Injury, Family & Divorce, and Criminal Law at Winer & Bennett, LLP. To learn more about the Felonies First Program or receive expert legal counsel from Kent, call 603-882-5157. Visit our website at www.winerbennett.com.

Passenger Claims

How does a passenger in a car crash recover damages when the driver of the vehicle is found “at fault”?

Passenger claims carry a certain stigma because they are often cast as “suing” a person with a close relationship to the passenger, such as a husband or friend.  This characterization is beneficial to insurers who would otherwise have to pay money out under the insurance policy.  Mind you, this is a policy for which the driver is paying premiums month after month to protect themselves and their loved ones.  This characterization is especially problematic in the unfortunate instance of a wrongful death case when the passenger’s injuries are fatal.

The basis of this misconception is rooted in the fact that a jury is never told whether a person has insurance.  Therefore, if the case does not settle outside of court and proceeds to a lawsuit, the Defendant listed is the name of the driver or vehicle owner.  Insurers are quick to remind injured parties of this fact.  In the vast majority of cases, the reality is that you are “suing” the driver to seek fair compensation under an insurance policy and not against the individual’s personal assets.

Under New Hampshire law, passengers have the right to recover for, among other things, medical expenses, lost wages, physical pain and emotional distress.   A strong advocate will go a long way toward avoiding common misconceptions and recovering fair compensation for an injured passenger.

By: Brenner G. Webb

To receive expert legal guidance on matters like this, contact the law office of Winer & Bennett, LLP at 603-882-5157. Visit www.winerbennett.com for more information.

Protecting Ourselves From Uninsured Drivers

The laws in New Hampshire do not require that vehicle owners maintain automobile insurance.  Setting the wisdom of that policy aside, many individuals in New Hampshire unexpectedly have this problem when they are injured by negligent drivers who don’t have insurance.  Where does one turn when they are faced with such a scenario? 
 
The answer is that you file a claim under the “uninsured motorist coverage” on your own auto policy.  While it seems inherently unfair to the not-at-fault driver, this is the most practical way to ensure that you are covered by insurance.  Also by law in New Hampshire, the limits of liability that you select on your auto policy will be the same as your uninsured motorist coverage limits.  Therefore, the amount of coverage that you select is not only protecting others from harm that you might cause, but also from harm that others may cause you.  For that reason, it is critically important to you, your family, and anyone else that might use or ride in your vehicle, that you carry adequate limits.
 
Determining the “ideal” limits to carry on your policy is an impossible task.  However, one might consider factors such as the cost of medical care if you were seriously injured and needed surgery, required an extended stay in a hospital, and/or had to recover lost wages due to missed work.  These costs alone can quickly exceed $100,000.  Another consideration is the relatively low cost to carry significantly more insurance.  You might ask your insurer what it would cost to increase your limits of insurance from, for example, $100,000 to $250,000.  Often, it is a matter of a few extra dollars.
While our “Live Free or Die” motto in New Hampshire comes with certain advantages, it also requires that we use extra care to protect ourselves, our loved ones, and anyone else on the road.
 
By:  Brenner G. Webb
Attorney Brenner G. Webb practices Personal Injury, Business, and Criminal Law at Winer & Bennett, LLP. To connect with Brenner and learn more about matters like this, visit www.winerbennett.com.

Attorneys Brenner G. Webb & Peter G. Webb Have Article Published In New Hampshire Bar News

The following entry was published in the August issue of the New Hampshire Bar News, a respected publication that is distributed to attorneys across the Granite State. Attorneys Brenner G. Webb and Peter G. Webb offer their expertise on matters of Personal Injury and Workers’ Compensation.

Workers’ Compensation Law & Personal Injury Law: Framework of a Catastrophic Injury Case

By: Brenner G. Webb and Peter G. Webb

Catastrophic personal injury cases are infrequent enough that it can be helpful to review their fundamentals. A catastrophic injury can be loosely defined as a life-altering, permanent injury that often impacts a person’s ability to regain normal function and to live independently. This article will address some of the issues which comprise the framework particular to such cases.

A threshold issue for the plaintiff is the amount of applicable insurance coverage. Unlike our neighboring states, New Hampshire law does not obligate insurers to disclose the amount of available insurance coverage before suit is filed. That disclosure is not mandated until the Structuring Conference Order, which governs litigation deadlines, is approved by the Court. In instances of severe injury, insurers may be willing to disclose limits for the simple reason that the case value far exceeds the coverage, exposing their insured. Significant coverage is necessary for an adequate recovery and to cover the costs to properly prepare such a case. Such costs can be considerable and may require a significant outlay of funds over an extended period of time.

Monetary damages, of course, include the past and future expense of the care required by the injury. Assessing and valuing the future cost of providing adequate care to the client requires a high-quality life care plan. A life care plan must be prepared by someone who is competent to determine and predict the treatment and care which the client will require in the future as a result of the injury. This future care includes medication, medical care, medical supplies, equipment, custodial care, support services and therapy, housing and transportation.

An economic analysis is required to calculate the present value of the aggregate future cost of the services under the life care plan, as well as to calculate the value of any lost future earnings the client’s injury has caused.

Often, a separate but key issue is the effect that any recovery for the client will have on the client’s future eligibility for health insurance coverage. Careful consideration and coordination of State Medicaid, Federal Medicare, Special Needs Trust planning, and structured settlements can protect the client’s eligibility for Medicaid and Medicare. This analysis includes the determination of eligibility and disqualification factors, the allocation of damages, the setting
aside of proceeds to assure payment of probable future care to which the client may become disentitled by virtue of a recovery, and the most cost-effective means of funding the future care.

Reimbursement of medical providers and health insurers, as in any personal injury case, may also be a significant issue. Particularly in the instance of Medicare, diligent efforts will be required to ensure proper lien repayment in order not to jeopardize coverage.The extraordinary needs of the client may need to be met early on. In the the right case, advances against the eventual recovery should be sought as appropriate to contain the injured party’s’ damages and to avoid developments which could compound the responsible party’s culpability.

Brenner Webb and Peter Webb of Winer and Bennett, LLP in Nashua represent injured parties only in matters of personal injury and workers’ compensation. Visit www.winerbennett.com for more information.

New Marijuana Law

New Marijuana Law

Governor Sununu recently signed into law the “decriminalization” of possession of small amounts of marijuana.  Small amounts are defined as less than three-quarters of an ounce of marijuana or five grams of hashish.  Some people take this to mean that this is legalization of marijuana use.  This is not the case.  Marijuana remains illegal and there are criminal penalties for possession or distribution of amounts that exceed three-quarters of an ounce.

According to an article in the New Hampshire Sunday News on July 23rd of 2017, a commission has been established to study the possible legalization of marijuana in the future.  The reasoning is that other states have already done so and state involvement with the legal manufacture, packaging, and distribution of the substance will secure substantial revenue for the State of New Hampshire while controlling the distribution and use.  This is the same way that alcohol is currently sold by the state in a regulated manner.  If it is going to happen eventually on a national level, the reasoning is that we might as well get on the bandwagon now and expedite the process.

The commission is not short on members who oppose legalization efforts.  This is a healthy decision as it will force debate about whether or not legalization is advisable in either a practical or moral sense.  People who oppose legalization of marijuana point out that marijuana can be a gateway drug to other more powerful and life changing substances.  They worry that younger people will get access to marijuana in a way that is unrestricted and cause changes to developing minds and bodies that will have long term affects.  Lastly, they see a slippery slope of state involvement, already deeply involved with liquor sales and lottery revenue, that will further erode the moral basis standing of government.  If selling these substances is morally acceptable, why not other forms of illegal activities?

It is obvious that the state’s change in legal treatment of marijuana began with the approval of medical marijuana.  No different from other drugs that are available with a prescription, the value of THC (the active ingredient in marijuana) to treat certain afflictions is both beneficial and medically superior to some other drugs.  Cancer patient’s post-chemotherapy have been known to do quite well with marijuana use to overcome nausea and lack of appetite.  Glaucoma patients report many beneficial effects of marijuana use when taken in accordance with doctor’s orders.  Chronic pain sufferers find that marijuana use is far more effective and less disruptive to the other human systems than opioids in treatment of their chronic pain.

The new law decriminalizing possession of small amounts moves the question to a different level.  In this situation, people who use marijuana recreationally are not going to be charged with a crime.  Though the possession is still illegal, it will not be considered an offense punishable by incarceration unless the amount exceeds three-quarters of an ounce or five grams of hashish.  This would seem to invite the use of marijuana for recreation by virtue of the state’s non-action.  Advocates feel that the decriminalization simply invites the next step of legalization.

The Sunday News article points out that there are strong voices on both sides of the issue.  Our state is not necessarily ready to take the legalization move at present.  The effects of legalization in states such as Colorado and Oregon would need to be studied and debated.  A review of what happened during prohibition would be a good place to start in examining the effect that legalization of marijuana might have on New Hampshire and our American society in general.  The best approach toward deciding the issue is a slow process that considers all different approaches and eventually comes to a conclusion that is best for our citizenry.  All age groups should weigh in and make their views known before the state debates a bill and makes a decision.

By: Kent Barker

Invisible Insurance

When you bring suit to recover for injuries caused by someone else, you sue the responsible party.  You may not name the responsible party’s insurance company in the suit.  In fact, if reference is made in the presence of the jury to the fact that there was insurance, a mistrial would be declared.

The judicial system routinely praises the wisdom and sanctity of the jury. Yet somewhere along the way, it has convinced itself that a jury will award money irresponsibly if it finds out that there is insurance coverage. What the system does in response is bend over backwards to give the jury the false impression that a verdict for an injured party must be paid out of the pocket of the responsible party.  That is virtually always untrue in personal injury cases.

To promote that falsehood is to mislead the jury. Luckily, I don’t believe that our jurors are fooled. They aren’t naïve. They assume that there’s insurance.  And the record is clear that that doesn’t cause our juries to act irresponsibly.

Loose Lips (and fingers) Sink Ships

Dear Client:

Please be forewarned that your opponent in a lawsuit will very interested in your social media postings.  You have to assume that the other side will be combing through whatever there is out there in your name to pick up what they can to undermine your case.  This includes postings on:  Facebook, MySpace, Instagram, LinkedIn, Twitter, Google+, Tumblr, Flickr, Pinterest, VK, YouTube, SnapChat, Foursquare, Yelp, WeChat, WhatsApp.

We all sometimes get carried away at our keyboards.  However, you cannot afford to if someone out there is filtering your postings to gather information to use against you in a pending legal dispute. Assume that if you post, they will see it.

CAI New England Annual Expo on 10/24/15

Attorney Gary Daddario and his team will participate in the 2015 CAI New England Annual Expo at the Burlington Marriott in Burlington, Massachusetts on October 24, 2015. Attorney Daddario will also be teaching a seminar at the event. Additional details will be provided at a later date.