At TBH&E, we celebrate our one-year anniversary today by thanking our clients, friends, and families for their trust and support! We have been thrilled by the positive response to the firm, and we look forward to continued service and success.
Effective January 1, 2015, complex business, commercial and construction cases with damages in excess of $200,000 are eligible for placement in the State’s new Complex Business Litigation Program. The Program will encompass both jury and non-jury matters. Upon initial filing, counsel for Plaintiff can designate the matter as a complex business litigation matter and request inclusion in the Program. It is hoped that the litigation of such designated matters will be streamlined and more effectively managed resulting in lower litigation costs to the parties and expedited case resolution.
Under the Program, eligible Complex Commercial matters include: claims by, against, and among parties that arise out of business or commercial transactions and involve parties’ exposure to potentially significant damage awards; or where the business or commercial claim involves complex factual or legal issues; a large number of separately represented parties; potential numerous pre-trial motions raising difficult or novel legal issues; case management of a large number of lay and expert witnesses or a substantial amount of documentary evidence (including electronically stored information); substantial time required to complete the trial; significant interpretation of a business or commercial statute; or involves other contentions of a complex business – commercial nature.
Eligible Complex Construction matters include: claims by, against, and among owners, contractors, subcontractors, fabricators and installers, architects, engineers, design and construction consultants, and other similar parties associated with a construction project that involves parties’ exposure to potentially significant damage awards because of claimed design and construction defects, or facility delivery delay claims or where the construction claim involves complex factual or legal issues; a large number of separately represented parties; potential numerous pre-trial motions raising difficult or novel legal issues; case management of a large number of lay and expert witnesses or a substantial amount of documentary evidence (including electronically stored information); substantial time required to complete the trial. Complex construction does not include construction and professional payment and billing claims, change order claims, wrongful termination, quantum merit, construction lien or mechanics lien claims, unless associated with a complex construction claim as herein described.
Parties may file a motion with the Complex Business Litigation Program judge for inclusion in the Program where the amount in controversy is less than $200,000. Parties may also move for removal from the Program on the grounds that the action does not meet the eligibility criteria. Finally, while cases in the Program are not part of the court’s mandatory civil mediation and arbitration programs, the Complex Business Litigation Program Judge in each vicinage, as part of case management, will continue to encourage the parties to engage in mediation.
The attorneys at Timmerman, Beaulieu, Hinkle & Esworthy, LLC are well versed in handling complex business, commercial and construction litigation in New Jersey and throughout the Mid-Atlantic region. Mike Hinkle is a founding partner of Timmerman, Beaulieu, Hinkle & Esworthy, LLC and manages the firm’s New Jersey practice. Mike’s practice focuses on complex insurance defense and business litigation in the federal and state courts of Maryland, New Jersey, and Pennsylvania. He can be contacted at (410) 649-4440 in Maryland, (717) 698-1428 in Pennsylvania or via email at mjh@tbhelaw.com.
TBH&E Partner Jason P. Beaulieu has been selected by his peers as a Super Lawyer® for the State of Maryland in 2015, a distinction awarded to less than 5% of all attorneys in the State. Super Lawyers® selects attorneys using a rigorous, multiphase process in which peer nominations and evaluations are combined with independent research of a candidate’s professional achievement and ethics. Selections are made on an annual, state-by-state basis. This marks Jason’s third consecutive selection as a Maryland Super Lawyer®.
Jason is a founding partner of Timmerman Beaulieu Hinkle & Esworthy, LLC. His practice focuses on civil and business litigation. He can be contacted by phone at (410) 649-4440 or by email at jpb@tbhelaw.com.
In Faust v. J.P. MacGrady’s, a Northampton County Court of Common Pleas judge overruled Defendant Tavern’s preliminary objections to a claim for punitive damages in the Plaintiff’s Complaint arising from a fatal motor vehicle accident. 58 Northampton 331 (Nov. 19, 2013). In doing so, the Court found that the Complaint alleged facts sufficient to support a finding that the Defendant engaged in outrageous conduct by disregarding a known or obvious risk of probable harm when its employees continued to serve a visibly intoxicated patron despite having knowledge that said patron would drive from the premises. The alleged intoxicated patron was subsequently involved in a fatal motor vehicle accident.*
Section 4-497 of the Pennsylvania Liquor Code (the “Dram Shop Act”) shields liquor licensees, such as bars and taverns, from liability to a third party unless the person causing the injury was served alcohol while exhibiting visible signs of intoxication. The majority of courts in Pennsylvania have held that the Dram Shop Act is the exclusive remedy to third party injuries resulting from a violation of the Act. Accordingly, courts will not grant relief for claims involving the service of alcohol based on common law negligence such as failure to properly train servers or other staff, violation of policies or procedures and failure to warn/prevent an intoxicated patron from driving, to name a few. However, all establishments serving alcohol should be aware that conduct such as that alleged in Faust could expose their establishment to punitive damages, which are generally not covered under a policy of insurance.
The most effective way for an establishment serving liquor to prevent unwanted violations of the Dram Shop Act is to ensure that all servers regularly receive responsible alcohol service training and are educated on recognizing the signs of visible intoxication. In addition, establishments should have strict policies and procedures in place prohibiting the service of alcohol to visibly intoxicated patrons. Unfortunately, not even the most stringent of policies and procedures can prevent the occurrence of all claims brought by injured third parties. Therefore, it is paramount that sufficient liquor liability insurance is obtained with the proper coverages and limits.
* Source: Pennsylvania Bar News, Court Summaries
The attorneys at Timmerman, Beaulieu, Hinkle & Esworthy, LLC are well versed in defending restaurants, bars, taverns, nightclubs and other entertainment venues in Dram Shop and liquor liability litigation throughout the Mid-Atlantic region. Mike Hinkle is a founding partner of Timmerman, Beaulieu, Hinkle & Esworthy, LLC. Mike’s practice focuses on complex insurance defense and business litigation in the federal and state courts of Maryland, New Jersey and Pennsylvania. He can be contacted at (410) 649-4440 in Maryland, (717) 698-1428 in Pennsylvania or via email at mjh@tbhelaw.com.
You get the case. Extremely defensible on both liability and damages. You take notes, call witnesses, plot strategy.
You draft the responsive pleading and written discovery requests. You summarize your initial thoughts for the client. You do some research on the plaintiff. Bingo. A prior conviction within 15 years that is likely to be permitted at trial.
You review medical records and other important documents. Lots of them. Bingo again. Prior problems with the affected area and no credible exacerbation from the incident. You hire an expert.
Your paralegal’s medical chronology helps with the big picture, too. Organization is key. Depositions are noted; outlines are prepared.
You speak again with your client. He’s pissed he’s being sued in the first place. You agree that the claim is weak but inform him that it doesn’t take much to file a lawsuit. He wants to countersue. You explain why he can’t. He’s even more pissed. You tell him you understand.
You take depositions. Bingo again. Sworn deposition testimony you know to be false. More impeachment ammo. The jury will hate him.
You defend depositions. Whoops. Some inconsistent testimony. Damage control is developed. Another update to the client. Mediation is scheduled; case value is discussed.
You consider a dispositive motion and do the research. Should be a winner. The plaintiff lacks a fundamental witness. You consider the jurisdiction, though, and decide that, in this instance, a motion for summary judgment will be nothing more than a carefully written letter to your opponent advising him of his case’s weaknesses.
Plaintiff’s medical expert’s fact deposition. Bingo. He clearly didn’t review all records and has a damaging gap in his CV. He’s pretty smooth, though, and from a well-known organization. Attacking him on cross will be crucial.
Mediation. Plaintiff is greedy and has no idea about the extent of your impeachment evidence. It’s not a perfect case, though, and sympathy could be a factor. The case doesn’t resolve. One more chance at the settlement conference, but a trial seems likely.
Settlement conference. You’re there 10 minutes. No deal. A trial date is set. You feel a tingle of adrenaline.
Trial preparation. You pour over literally thousands of documents. You prep witnesses and prepare exhibits. You work weekends and see your family sparingly. When you do see them it’s like breaths of fresh air. Kisses on the heads of sleeping children. Back to work.
Trial day; the first of three. You can’t sleep much and breakfast is light. You lug trial bags and exhibits to the courtroom. You meet with your client then with the judge in chambers to hammer out preliminary matters.
Rulings are put on the record along with the necessary proffers. Time to pick a jury.
Voir dire – questions to potential jurors. Painfully slow but absolutely critical. You play poker; you look for tells. Yep, she’ll feel sorry for the plaintiff and award big cash. Strike. He’ll see right through the plaintiff and will be tight on damages. Damn, stricken by plaintiff’s counsel. Finally, a jury.
They’re sworn and seated.
Opening statements. Plaintiff’s sketchy past is a godsend. Your exhibit blow ups seem worth it, too. Juror 4 is with you from the get go. Juror 6, not so much.
Plaintiff’s case. Direct examination followed by the payoff for a trial attorney: cross–examination with impeachment materials at your fingertips. It’s where highlighters and sticky notes do their thing. After four witnesses, Plaintiff rests.
Motion for judgment at the mid-point. Denied “for now.” What’s that mean? The flaw in plaintiff’s case at the close of discovery wasn’t cured by the close of his case. That should mean we go home early. Not so fast. Looks like the jury will get it.
Defendant’s case. Your subpoenaed witnesses show. Most deliver. Some are intimidated by the plaintiff. Day 2 concludes. Tomorrow’s the thing. Your client and expert will testify. Another late night of preparation.
It’s 3:04 a.m., and there it is. An 18-month case, thousands of documents, and a dozen witnesses, whittled down to a 3-page hand-written closing argument. Crystallized. You get a sense of calm. Win or lose, you’ve worked as hard as you can.
Final day of trial. Your client meets you early as requested. Panic sets in when you see him. You respectfully ask him to hide the Pittsburgh Steelers knit cap he wore into the courtroom, lest the jurors see it. He thinks you’re joking. You’re not.
You call your final witnesses then rest. Motion renewed. The judge comes close to granting it but denies it again. Frustration.
The jury is instructed. Closing arguments are given. You barely look at your 3-page outline. You’ve lived the case, that’s why. The jury leaves to deliberate.
They’re out 15, 30, then 45 minutes. Your client is worried. So are you. You think about Tom Petty and how he’s right: the waiting is the hardest part.
The law clerk enters the courtroom. They have a verdict. The jurors walk in and sit down. Stone-faced, no tells.
Question 1 on the verdict sheet: “Was the defendant negligent?” The foreman stands. “No,” he responds. Your client shakes your hand. You smile and exhale.
Phone calls to the office. Phone calls home. You pack up your stuff and head to the garage. It’s mostly empty. You start the car and exhale again. Decompression.
Until tomorrow when you get another case, take notes, plot strategy.
About the Author
Jason Beaulieu is a founding partner of Timmerman Beaulieu Hinkle & Esworthy, LLC. Jason’s practice focuses on complex civil litigation in Maryland and the District of Columbia, with a focus on insurance defense, school liability, construction litigation, and the retail/hospitality industry. He also advises individuals and businesses of all sizes on general business and risk management issues. He can be contacted by phone at (410) 649-4440 or by e-mail at jpb@tbhelaw.com.
If You are Swimming with Sharks…
– How To Avoid Lawsuits
– Best Practices to Save Your Case and Your Assets
DATE: Friday, May 30th
TIME:
8:00 am to 8:30 am Networking & Breakfast
8:30 am to 10:00 am Presentation
WHERE:
PSA Financial
11311 McCormick Road
Hunt Valley, Md
SPEAKER:
James M. Timmerman, Partner
Timmerman, Beaulieu, Hinkle & Esworthy, LLC.
SUMMARY :
This is an opportunity to get practical and hands on advice from a well known and experienced business and trial lawyer. Jim has promised us that this discussion will be down to earth, lively, and most importantly–save your business from possible financial ruin.
Guests may attend one HVBF Roundtable before joining the HVBF.
For more information and online registration to attend for free click here: If You are Swimming with Sharks…