Your First Trial: An Ultimate Experience

You take the practical skills courses.  You undergo two or more trials in front of multiple sitting judges.  You have the evidentiary rules pounded into your head . . . . “an out of court statement offered for the truth of the matter asserted.”  You undergo internships, externships, and whatever else there may be.  You’re instructed to “know your judge,” lectured on courtroom technology, and are even taught acting skills. 

You can learn about trials as much as you would like, but nothing prepares you for a trial in which you and your bar number are forever etched into the unforgiving record.  This is especially true if you work at a small firm in which the process for any training is generally “baptism by fire.”  “Second chair” is not a term that is known to exist within the vernacular of such firms.  As the date for jury selection draws nearer, anYour y soon-to-be trial attorney will start to become nervous—those nerves, however, go hand-in-hand with eye-widening excitement.  Whether the case is a “losing one,” one that can go “either way,” or a “clear winner,” the professional^[1] rush that is felt seeks to rival only moments such as graduation or passing the bar exam. 

Despite valiant attempts of instructors to teach about the process of trial, what the budding attorney is still never taught is how to evaluate.  As a previous marketing student, one thing that I immediately noticed in the legal field is that many—whether individuals or organizations—don’t take time to sit down and evaluate past occurrences.  While it may be a matter of course in the business world, it’s not yet a formed habit in the legal world.  Of course, we learn any lessons that were meant to be had, and we try to implement what we learned—or at least we think we do—but what do we miss by not setting aside a specific time to evaluate and conduct explicit analyses?

I would encourage every single young attorney who has the opportunity to conduct a trial in any capacity to take some time soon afterwards to at least ask and answer the following questions about your experience:

• What did I learn from the judge? If I had to go to trial in front of him or her again, what would I change?  What would I keep the same?
• What did I learn from trial that should affect how me or my firm handle cases during pre-litigation? Do I need to revaluate my discovery practices?  My motion practices? 
• What did I find out about how I present myself to the (1) jury, (2) other attorneys on the case, (3) the clients, (4) the judge, and (5) the judge’s staff?
• How was my organization? Can I organize my documents or files differently—both during trial and beforehand?
• How was my record? Can I work to make a better one next time?  If the case is appealed, did I cover all my bases?
• What did I learn from the other attorneys on the case? Can I pick up any good skills?
• How can I better prepare next time?

After you take some time to breathe, relax, and celebrate, sit down and conduct your review.  At the very least, ask yourself the questions that were just listed above.  Add some more to the list.  Don’t be shy.  Capitalize on your fresh memory while you have the chance.  Your future self might just be thankful that you did. 

Keep learning, stay excited, and always be ready to pivot.  

^[1] Why the conditioning “professional”?  From this humble attorney’s perspective and experience from which an opinion can be formed, there are other moments—especially for those of us who do not care for the stationary life—that create inexplicable feelings on a whole different level.  Climbing/hiking mountains, soaring/jumping through the sky, and partaking in endurance sports are just some examples. 

Silvia Mansoor

Koussan Hamood PLC

Detroit, MI

silviamansoor.com

 

Media & The Law Make Poor Friends

          

            What lawyers generally do is interesting to many lawyers and non-lawyers alike. That is why we are one of the most-portrayed professions in television and movies. Well-meaning individuals will find out you are a lawyer and ask, “Oh, have you seen (this show or movie)? It is the best. You have to watch it. You will love it.” After you have heard it 100 times, I imagine you will do as I do - smile and nod. What non-lawyers do not understand about the way that the law is portrayed in entertainment media is that it is seldom accurate. Trials do not happen within weeks of the incident. Seldom are there true surprises at trial like so dramatically portrayed on television and movies. 90%-99% of cases never even proceed to trial. The countless hours in motion or trial prep is not portrayed. Preparing for all contingencies is not portrayed. Being a lawyer is not what the entertainment media portrays – it is more than just arguing convincingly and dressing nicely. Entertainment media and the law make poor friends. 

            The news media is also infrequently the friend of the law. Because what we do is interesting and because real-life cases involve real-life people that we feel real-life connections with, real-life cases often are very interesting to the public. Oftentimes, news reporters are placed on rigorous deadlines and often without the legal background to accurately report what is made public – both in-court proceedings and written pleadings or during investigation. The media will also not have available to it all the facts that are known to the attorneys or judge/jury. I genuinely believe that most of the time, reporters want to get everything right and want to accurately report such – but that is difficult without assistance from the litigants. 

            That assistance is often appropriately not granted. Attorneys are bound by ethical rules and zealous advocacy for our clients to restrain what is said in the media. The parties are often warned by their attorneys to not make public statements or else they may hurt their case. This leaves the media on its own to report with incomplete information and knowledge. No one knows the facts like the parties, the attorneys, and the judge or jury. This can lead to misapprehension of what is occurring or sensationalization of the facts in order to draw more attention to their work. The media may also accidentally feed a narrative that can also appear to lead to results which appear unfair to the public. Media attention rarely makes handling a case easier for the attorneys. If often makes it much harder than it would have otherwise been. In rare cases, it may also pressure the attorneys or the parties into reaching a result that is unjust or would otherwise not be available.  

            As attorneys, we can do our best not to rush to judgment for cases reported in the media. Our system of justice often does what it is supposed to do when everyone does their part – the attorneys and the judge/jury. The media’s job is to report what is interesting and true, but often they are left without the tools to do so accurately. Sometimes, the facts that would make everything make sense to the public must remain secret and never be disclosed. As attorneys, I would encourage you to not rush to judgment about the rightness or wrongness of a result as portrayed by the media. I would encourage you to caution others to not rush to judgments when they see a case that upsets them portrayed in the media. Trust me that you’ll want it when it’s your case in the media because the media and the law are seldom good friends.

Chris Wickman

Nichols Law Firm

East Lansing, MI

www.nicholslawyers.com

Coping with COVID-19

In light of the COVID-19 pandemic, I’ve decided to postpone my originally planned topic of “My Loved One Wants to Stay at Home, but I’m Not Sure They Should” at this time. The title of that series sort of presents us with a different quandary right now doesn’t it? State governments all over the country are ordering residents to Stay Home by all means possible to allow our health care system time to get this pandemic under control. So, we, a society very uncomfortable with the idea of slowing down, are forced to do exactly that. You’d think this may be the perfect time for me to write a blog, but I’m finding it to be the exact opposite. Not due to a lack of opportunity. For a lot of us, if there’s one thing we have more of right now it’s time, right? In light of this pandemic, I’ve struggled with finding constructive things to say. After all, I’m not a nurse or a doctor or a scientist or a researcher or an engineer or a police officer or a firefighter or a paramedic or a psychiatrist or a counselor or any of the many other frontline workers who are working their butts off to keep the rest of us safe and healthy. I don’t have any special insight to offer in this moment. At best, I can only offer my interpretation of what I’ve heard and observed on TV and from conversations with friends and family in the health care industry, which I think is true for most of us.

So, how do we deal with these uncertain times? I keep trying to remind myself not to get too caught up in the news and discussion about this virus, but that is really really difficult when it presents such a real threat to each of us and our loved ones. Perhaps one of the biggest if not the biggest problem I’m having in coping with the COVID-19 pandemic is that I have nothing to distract me from it. Being the sports nerd that I am, the complete shutdown of all professional sports leagues has opened up a lot of my thought time. There are no distractions like this left for many of us. Sure, I can stream movies and TV shows day and night, but even those only offer a temporary respite from reality. And the odd thing for me is, even if sports were still being played and broadcast, I just don’t think they’d be the same right now. It wouldn’t feel right with the difficulties our world is currently facing. 

One thing I keep grasping for in all of this is perspective. I don’t think I’ve ever appreciated the gathering of human beings as much as I do now. Whether it be a work event, a social event, a family event or even simply running some errands, I’ve never appreciated the opportunity to be around other people as much as I do now. I think we can all find things to be grateful for under these circumstances. Having a 2-year-old son and a pregnant wife, I am extremely grateful for the time I get to spend with them every day (of course, my wife might feel differently about the time she has to spend with me). I think gratitude can be a powerful tool at a time like this. We’re all dealing in unfamiliar territory, but if we can find things to be grateful for in the present, they can help give us the patience we need to endure this crisis. And then when we make it out of this, we will all be better, stronger individuals because of it.

I do have a few additional, hopefully useful, tidbits of information I’d like to share. While it is vitally important for all of us to remain hopeful and positive with all the negativity surrounding us, it’s also important to be realistic. Unfortunately, COVID-19 has produced a seemingly endless supply of sobering stories that highlight the importance of listening to advice from medical professionals and experts as well as the importance of being more prepared for the future.

Here in Michigan, many of us have heard about the 25-year-old, physically fit, Western Michigan University football player that passed away this past week as a result of the virus.

Audra (my boss, owner of our firm) has a 25-year-old son who was a student at Western Michigan University. Unfortunately, many of his friends, and they’re not alone among their age group, aren’t giving the dangers of COVID-19 much thought. Young people are not immune to the effects of this virus and can and will continue to get sick unless and until they start heeding the advice and warnings of medical professionals, infectious disease experts and, perhaps most importantly, their parents. The inverse of this is also true, though. As an ‘80s millennial (who doesn’t really feel that people born in the ‘80s belong in the millennial category, perhaps a topic for another time) I am wrestling with my parents, and I notice my friends having these same issues with their parents as well, who think this virus isn’t going to affect them and that they can go about their daily lives in similar fashion to how they always have. 

Both personally and as estate planning attorneys, we are horrified by the continued stories of COVID-19 related medical emergencies that we are hearing about.  We have clients, family members, friends and acquaintances who are battling this virus. We have clients whose children can’t visit them in the care facility they reside in right now and whose children are calling the hospitals, rehab facilities and assisted livings for updated information on their parents because they can’t be there in person. It’s important to remember that a Designation of Patient Advocate (DPA)/Medical Power of Attorney allows for you to be a point of contact as well as the decision maker in all medical emergencies. Not just in times like this, but generally, a DPA is the most important legal document that you will execute.  It designates who will make decisions for us or our loved ones if we fall ill, are in an accident or meet some other fate.  Now is a good time to review your documents for accuracy and, if you don’t have any documents, to consider having them drafted. I’m in the same boat as a lot of you. My wife and I still don’t even have our estate planning documents in place (her fault, not mine, I swear…just don’t tell her I said that!). And we have young kids! All the more reason to get these documents in place, I know. Naturally, this experience has reminded me I need to get these documents completed for our family as soon as possible. (DUH, right? I do this for a living and I don’t already know that?!) So, if you are like me and you or a loved one’s DPA hasn’t been updated or you don’t have one at all now would be a great time to get these documents in place.

Our office continues to take calls and our team is doing as much work as we can remotely. We will be also be taking some time over these next few weeks to check in with our clients and their families. Things may be a bit different right now, but we are still here to address any concerns you have for yourselves and your loved ones. 

On a final note, we are blessed with technology that allows us to communicate and stay in touch with each other in many different ways, so let’s try to take advantage of that right now. And hopefully, if (IF) this Michigan weather cooperates, all of us will be able to spend a bit more time outdoors in the coming weeks. Our mental and emotional health are as important as our physical health, so I hope we are all mindful of these and other blessings in our lives and that they add up to a better attitude for each of us in the face of this pandemic. We sincerely hope and pray you and your loved ones stay safe and healthy during these trying times. Please do not hesitate to call or email us with your questions. May God bless and protect you and your families.

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Ryan Reck

Woods Law Office PLLC

Shelby Township, MI

www.woodselderlaw.com

Coronavirus & HIPAA Implications

The HIPAA Privacy Rule protects the privacy of patients’ health information (protected health information), but it is balanced to ensure that appropriate uses and disclosures of the information still may be made when necessary to treat a patient, to protect the nation’s public health, and for other critical purposes.

The Novel Coronavirus (2019-nCoV) outbreak has provided such a purpose. This means HIPAA-covered entities and their business associates may be able to share patient information under the HIPAA Privacy Rule in order to deal with the outbreak of infectious disease or other emergency situation. However, the protections under the HIPAA Privacy Rule are not set aside during an emergency.

While the HIPAA Privacy Rule is not suspended during a public health or other emergency, the Secretary of the U.S. Department of Health and Human Services (HHS) may waive certain provisions of the Privacy Rule under the Project Bioshield Act of 2004 (PL 108-276) and section 1135(b)(7) of the Social Security Act.

The Secretary of HHS, Alex M. Azar, declared a public health emergency on January 31, 2020. In doing so, he exercised his authority to waive sanctions and penalties against covered entities (and their business associates) that do not comply with various provisions of the HIPAA Privacy Rule¹: 

1. The requirements to obtain a patient’s agreement to speak with family members or friends involved in the patient’s care. See 45 CFR 164.510(b)
2. The requirement to honor a request to opt out of the facility directory. See 45 CFR 164.510(a)
3. The requirement to distribute a notice of privacy practices. See 45 CFR 164.520
4. The patient’s right to request privacy restrictions. See 45 CFR 164.522(a) 
5. The patient’s right to request confidential communications. See 45 CFR 164.522(b) 

This waiver became effective March 15, 2020.

The waiver of sanctions only applies in various settings such as in the “emergency area” as defined in the public health emergency declaration made by the Secretary of HHS. The waiver also applies to hospitals that have instituted a disaster protocol, and up to 72 hours from the time the hospital implemented its disaster protocol. The waiver of sanctions expires when the Secretary of HHS or the President terminates the public health emergency declaration. 

So what does this mean for health care workers, such as physicians, nurses, nurse practitioners and physician’s assistants?

The HIPAA Privacy Rule — even without waiver of sanctions by the Secretary of HHS during a declared emergency — has, baked in its regulation, allowable disclosures during emergency situations. For example, a health care provider may share protected health information with a patient’s family members, friends, other persons identified as involved in the patient’s care. (See 45 CFR 164.510(b).) Health care providers may share such patient information with anyone as necessary to prevent or lessen a serious and imminent threat to the health and safety of a person or the public. Relevant to the current pandemic, a health care provider may disclose a patient’s health information, such as a positive result for COVID-19, to anyone who is in a position to prevent or lessen the serious and imminent threat, possibly further exposure to others. 

The HIPAA Privacy Rule expressly defers to the health professionals’ judgment in making determinations about the nature and severity of the threat to health and safety. (See 45 CFR 164.512(j).) While the HIPAA Privacy Rule defers to a providers’ judgment, a disclosure must be made with reasonable efforts to limit the information disclosed to that which is considered “minimum necessary” information to accomplish the purpose. An important caveat is that the minimum necessary requirements do not apply to disclosures to health care providers for treatment purposes. 

Another important HIPAA implication involves telehealth. The Health Resources and Services Administration defines telehealth as the use of electronic information and telecommunications technologies to support and promote long-distance clinical health care, patient and professional health-related education, and public health and health administration

During the COVID-19 public health emergency, covered health care providers will not be subject to penalties for violations of the HIPAA Privacy, Security, and Breach Notification Rules that occur in the good faith provision of telehealth. The question, then, becomes: What is considered “good faith” in terms of telehealth? While there is no definition for “good faith” the Office of Civil Rights (OCR) has defined instances of bad faith²: 

1. Conduct or furtherance of a criminal act, such as fraud, identity theft, and intentional invasion of privacy;
2. Further uses or disclosures of patient data transmitted during a telehealth communication that are prohibited by the HIPAA Privacy Rule (e.g., sale of the data, or use of the data for marketing without authorization);
3. Violations of state licensing laws or professional ethical standards that result in disciplinary actions related to the treatment offered or provided via telehealth (i.e., based on documented findings of a health care licensing or professional ethics board); or
4. Use of public-facing remote communication products, such as TikTok, Facebook Live, Twitch, or a chat room like Slack, which OCR has identified in the Notification as unacceptable forms of remote communication for telehealth because they are designed to be open to the public or allow wide or indiscriminate access to the communication.

Many health care providers are offering telehealth services during the COVID-19 outbreak to limit patient exposure and promote social distancing. A high number of these health care providers are offering telehealth services for the first time, or at a higher rate than normal. This situation calls for potential gaps and mistakes. Health care providers should be aware that the OCR has indicated it will exercise its enforcement discretion, and it will not pursue otherwise applicable penalties for breaches that result from good faith provision of telehealth services during COVID-19 public health emergency. 

The health care industry faces considerable uncertainty currently. But the Secretary of HHS and the OCR are taking small steps in the HIPAA Privacy Rule to make it easier to provide medical treatment to patients in need during this crisis.

¹ https://www.hhs.gov/sites/default/files/hipaa-and-covid-19-limited-hipaa-waiver-bulletin-508.pdf

²  https://www.hhs.gov/sites/default/files/telehealth-faqs-508.pdf

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Wedad Ibrahim Suleiman

Attorney at Chapman Law Group: Health Care Defense Law Firm

LL.M. Health Law Candidate, Loyola Chicago

J.D. MSU College of Law