What a fantastic time to be a fan of the professional sports franchises located here in Indianapolis. The Indiana Fever is the defending WNBA champions. The Indiana Pacers were a few points shy in the seventh game of the NBA conference finals from upsetting the defending and eventual two time champion Miami Heat. The Indianapolis Indians are at this writing, nearly 20 games over .500 and cruising to the Triple A playoffs again. Even the Brickyard 400 NASCAR race sported a Hoosier winner in Ryan Newman driving for Hoosier team owner Tony Stewart.
With this success in a small market, it gives great credibility to the word
"management". Our franchises cannot compete on the basis of pure economic clout but must excel because of shrewd management.
Also, with this success, it would be easy to rest on the laurels of the victories and not simply strive to improve the products. Certainly, winning matters in all franchises, but winning is critical to small market teams as winning is the only way to consistently compete at the national level with respect to fan support and attendance.
The Fever, despite a series of injuries, is poised to make the playoffs again. The Colts have been extremely active in upgrading their team with a spending space to secure necessary depth and talent. The Pacers have significantly upgraded their talent through shrewd trades and free agent signings. The Indians are working to extend their affiliation agreement with the Pittsburgh Pirates as they have committed players to Indianapolis that continue a winning tradition. And of course, the Indianapolis Motor Speedway is in a major capital and management overhaul. Yes, we are indeed blessed if not spoiled by the excellence that we witness with our professional sports franchises. I applaud the management teams, each and every one of them, as it is more difficult to sustain success than it is to even get to the top in the first place. For me? I'm betting on all of our pro teams to manage well for continued winning!
Wednesday, July 31, 2013
Wednesday, July 17, 2013
Professional Conduct
Professional conduct is a topic of frequent comment and concern among lawyers and judges. Sometimes when we face sharp legal practice, where an opponent insists on rigorous adherence to deadlines, uses discovery tactics as a strategic sword, or resists compromise on what we view as nondispositive litigation disputes, we voice a negative opinion of that opponent's professionalism (if only to ourselves). Or when we encounter that individual who exists in every walk of life, the out and out boor who is just generally unpleasant, we are tempted to characterize the boor's boorishness as unprofessional conduct.
There are those who serve as apologist for certain conduct occasionally deemed unprofessional. Some attorneys would agree that an aggressive, challenging approach in a discovery deposition may well be appropriate and within the bounds of professionalism so long as the questions are fair and the rules of court are observed. Zealous advocacy must allow for a certain amount of zeal, after all.
It seems to me that there are two kinds of genuine unprofessional conduct. One is the easy kind to spot and deal with: Dishonesty about facts and motives. For trial lawyers and litigators, our practice is premised upon contention. Perhaps contradictorily, it is for this very reason that a high degree of trust between opposing counsel is necessary for us to function in a professional fashion. When we cannot trust opposing counsel, the goals of litigation---a search for the truth and fashioning an appropriate remedy for the actionable wrong---are thwarted. Now this can be difficult, especially for younger lawyers who do not yet have a reputation for either trustworthiness or knavery. But when we can let our word be our word, and our opposing counsel can take it to the bank, this is a good thing. Some of my favorite conversations with opposing counsel have gone along these lines: "I can agree with you about Disputes 1 and 2. But my client simply does not agree with your position on Disputes 3 and 4, and that is where our overall disagreement will be focused." Such a discussion can pave the way for dealing effectively with discovery disputes and other matters of potential disagreement.
Overt dishonesty is thankfully rare. Instead we see a great deal of gamesmanship, of partial disclosure or holding back of certain facts or issues because of the perception that there is a strategic advantage to doing so. Of course, I do it too sometimes. Is that unprofessionalism? It certainly can erode trust when "the full story" comes out. As an aside, for what it's worth, I try to approach every opposing attorney, even ones with whom I have not worked very much, with an attitude of trust. The ones I immediately suspect of untrustworthiness are the ones who act as if they don't trust me. I sometimes want to tell them, "You know, I know you don't believe me, but I am not lying to you."
The other, much more problematic type of lack of professional conduct is what I will call negligent unprofessionalism. The archetype is failure to return telephone calls. Let me say upfront that I have been and often still am guilty of not returning calls as timely as I am sure my opponent or colleague would prefer---after all, he or she called me on his or her time, when an answer was needed then. But I do pride myself on working hard to return calls or at least send a text or e-mail message acknowledging the call, even if only to say, "I don't have an answer now." Lack of attentiveness and responsiveness is a type of unprofessionalism that is insidious and widespread. It happens not because an attorney acts on an intent to mislead or chat, but because we get busy or lazy or overwhelmed with other, non-lawyer stuff. I say all of us because it genuinely does happen to all of us sometimes.
There were times, not so very long ago, when lawyers literally rode circuit with the judges, when opponents had to share bunks, tables and wheels. The practice of law has changed mightily since then, and continues to change at an inconceivably rapid pace. While I do not pretend that there were any "good old days" when professionalism was de rigueur, I do believe it is simply easier now, where things are of necessity less personal, to fail to genuinely appreciate the commitment to professionalism we all made upon becoming lawyers. But most lawyers, most of the time, do seek to conduct themselves in a professional fashion. I would urge us all, myself included and first of all, to strive toward that goal for all lawyers, all the time.
There are those who serve as apologist for certain conduct occasionally deemed unprofessional. Some attorneys would agree that an aggressive, challenging approach in a discovery deposition may well be appropriate and within the bounds of professionalism so long as the questions are fair and the rules of court are observed. Zealous advocacy must allow for a certain amount of zeal, after all.
It seems to me that there are two kinds of genuine unprofessional conduct. One is the easy kind to spot and deal with: Dishonesty about facts and motives. For trial lawyers and litigators, our practice is premised upon contention. Perhaps contradictorily, it is for this very reason that a high degree of trust between opposing counsel is necessary for us to function in a professional fashion. When we cannot trust opposing counsel, the goals of litigation---a search for the truth and fashioning an appropriate remedy for the actionable wrong---are thwarted. Now this can be difficult, especially for younger lawyers who do not yet have a reputation for either trustworthiness or knavery. But when we can let our word be our word, and our opposing counsel can take it to the bank, this is a good thing. Some of my favorite conversations with opposing counsel have gone along these lines: "I can agree with you about Disputes 1 and 2. But my client simply does not agree with your position on Disputes 3 and 4, and that is where our overall disagreement will be focused." Such a discussion can pave the way for dealing effectively with discovery disputes and other matters of potential disagreement.
Overt dishonesty is thankfully rare. Instead we see a great deal of gamesmanship, of partial disclosure or holding back of certain facts or issues because of the perception that there is a strategic advantage to doing so. Of course, I do it too sometimes. Is that unprofessionalism? It certainly can erode trust when "the full story" comes out. As an aside, for what it's worth, I try to approach every opposing attorney, even ones with whom I have not worked very much, with an attitude of trust. The ones I immediately suspect of untrustworthiness are the ones who act as if they don't trust me. I sometimes want to tell them, "You know, I know you don't believe me, but I am not lying to you."
The other, much more problematic type of lack of professional conduct is what I will call negligent unprofessionalism. The archetype is failure to return telephone calls. Let me say upfront that I have been and often still am guilty of not returning calls as timely as I am sure my opponent or colleague would prefer---after all, he or she called me on his or her time, when an answer was needed then. But I do pride myself on working hard to return calls or at least send a text or e-mail message acknowledging the call, even if only to say, "I don't have an answer now." Lack of attentiveness and responsiveness is a type of unprofessionalism that is insidious and widespread. It happens not because an attorney acts on an intent to mislead or chat, but because we get busy or lazy or overwhelmed with other, non-lawyer stuff. I say all of us because it genuinely does happen to all of us sometimes.
There were times, not so very long ago, when lawyers literally rode circuit with the judges, when opponents had to share bunks, tables and wheels. The practice of law has changed mightily since then, and continues to change at an inconceivably rapid pace. While I do not pretend that there were any "good old days" when professionalism was de rigueur, I do believe it is simply easier now, where things are of necessity less personal, to fail to genuinely appreciate the commitment to professionalism we all made upon becoming lawyers. But most lawyers, most of the time, do seek to conduct themselves in a professional fashion. I would urge us all, myself included and first of all, to strive toward that goal for all lawyers, all the time.
Thursday, July 11, 2013
Cooperation Among Counsel During the Medical Review Panel Process
As any attorney who practices in the area of medical malpractice in Indiana likely knows, cooperation and straightforward communication among counsel during the medical review panel process is critical. The Indiana Court of Appeals in John H. Mooney, As Special Administrator of the Estate of Joseph S. Mooney v. Anonymous M.D. recently confirmed this when it reinstated a proposed complaint despite the fact that the Plaintiff's attorney had taken several years to complete discovery. In short, the Plaintiff's attorney attempted to delay the setting of the submission schedule until he was able to complete depositions and have expert opinions prepared. Plaintiff's counsel routinely advised defense counsel and the panel chair of his desire to conduct depositions prior to completing his submission. Although the defense counsel initially agreed to waive the 180 day deadline to receive a panel opinion, after a significant amount of time had passed, defense counsel later sought to have the proposed complaint dismissed based upon the Plaintiff's failure to adhere to the submission schedule, the Indiana Malpractice Act, and to diligently prosecute his claim pursuant to Trial Rule 42(E). The trial court ordered that the proposed complaint be dismissed based upon the Plaintiff's failure to provide his submission to the Medical Review Panel in a timely manner and adhere to the 180 deadline.
However, on appeal, the Court reversed and noted that the 180 day deadline is not a statute of limitations and further that the parties had agreed to waive or extend the deadline. Further, the Court appeared persuaded by the fact that the Plaintiff had not provided his submission because he desired to take depositions beforehand and had not received dates to conduct the depositions from counsel for a separate defendant. The Plaintiff's counsel also indicated that he had not filed a motion to compel out of "professional courtesy" as he only assumed that counsel's calendar was as busy as his own. The Court's holding also warns not to use the deadlines as a tactical advantage when the Plaintiff has a legitimate basis for the delay (such as not being able to schedule depositions) and has routinely participated in the medical review panel process.
The structure of the opinion and the dicta contained in Mooney is a reminder that it is critical to cooperate and communicate with counsel during the medical review panel process. Although there are often cases where the dismissal of a proposed complaint for failure to adhere to the 180 day deadline or otherwise prosecute the case is warranted, the holding in Mooney should remind attorneys that Indiana courts typically prefer such cases to be resolved on their merits.
However, on appeal, the Court reversed and noted that the 180 day deadline is not a statute of limitations and further that the parties had agreed to waive or extend the deadline. Further, the Court appeared persuaded by the fact that the Plaintiff had not provided his submission because he desired to take depositions beforehand and had not received dates to conduct the depositions from counsel for a separate defendant. The Plaintiff's counsel also indicated that he had not filed a motion to compel out of "professional courtesy" as he only assumed that counsel's calendar was as busy as his own. The Court's holding also warns not to use the deadlines as a tactical advantage when the Plaintiff has a legitimate basis for the delay (such as not being able to schedule depositions) and has routinely participated in the medical review panel process.
The structure of the opinion and the dicta contained in Mooney is a reminder that it is critical to cooperate and communicate with counsel during the medical review panel process. Although there are often cases where the dismissal of a proposed complaint for failure to adhere to the 180 day deadline or otherwise prosecute the case is warranted, the holding in Mooney should remind attorneys that Indiana courts typically prefer such cases to be resolved on their merits.
Wednesday, July 10, 2013
Medicare's Time to Seek Reimbursement Limited to Three Years
Medicare now has three years to claim reimbursement for its subscribers' medical costs. This statute of limitations is mandated by The Strengthening Medicare and Repaying Taxpayers (or SMART) Act which became law early this year. Until now, there had been uncertainty on the timeframe in which Medicare could seek to recoup costs for which another party accepted responsibility (through settlement, judgment, award, or other payment). Medicare now has a three year window to file suit in an action to seek repayment, starting from the date of reporting to the Centers for Medicare & Medicaid Services (CMS) as part of the Mandatory Insurer Reporting rules following Section 111 of the Medicare Medicaid SCHIP Extension Act of 2007. Overall, the SMART Act aims to shorten the Medicare reimbursement timeline.
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