Medicare recovery process demystified.

Practitioners for plaintiffs and defendants alike shiver upon hearing the words Medicare Secondary Payer Recovery Contractor. Fear not lawyers who have internet access, the MSPRC has availed itself of modern technology and done lawyers a huge favor at the same time with the the MSPRC website, which is robust, user-friendly, and full featured with forms, letters, tool kits, and contact information. My favorite part is the MSPRC flow-chart of the overview of the recovery process. The Letters section has a menu with codes that correspond to the various letters sent during the recovery process. Identify the code on your letter and find the corresponding menu. You can click for a brief description of the letter, but the best feature is the advice on what step to proceed to next on the flow chart. Very cool stuff for attorneys suffering through the process.


Peremptory challenged.

The jury selection (or voire dire for you lawyers) process is both an art and a science. In its online journal the ABA recently reported an incident where a defendant purportedly had an encounter with one of the jurors sitting on the jury panel in his own trial. The juror in question is said to be working as a lawyer in corporate finance and securities as a “partner in an elite Manhattan law firm.” The juror-lawyer is alleged to have flipped off the defendant while catching a taxi cab leaving the court house, ostensibly because the defendant was trying to steal her ride. After giving an angry look at one of the attorneys the defense objected to the juror’s impartiality .

The first question I have is why is a lawyer sitting on a jury? A not-so unspoken trial strategy among lawyers if to remove all the attorneys from the jury panel. The only exception that I can think of would be a case that involved highly technical or elaborate legal theories where an attorney-juror may be beneficial. Even under those circumstances it would be a risky move. Needless to say the article reports the juror was later released, it is unclear if her removal was connected to the glaring look. Read more  about the incident on the ABA’s online article: “Lawyer who flipped the bird at defendant is removed as juror; was cab conflict the reason?”


Changes to how we do things around here: default judgments

As mentioned in a previous post, changes to the code of civil procedure have affected not only the summary judgment, but also how default judgments are procured. Louisiana Code of Civil Procedure now requires sufficient proof to establish a prima facie case to be admitted into the record, before a confirmation in granted. Although it sounds like a nuance, the previous language only required proof sufficient to establish a prima facie case, without requiring it to be put in the record. This was problematic on appeal, since the presumption exists that a prima facie case was made in the lower court upon granting a default. Logically, an appellant that was defaulted has an unfair burden if it must overcome prima facie proof that was not privy to the record. By legislating an amendment to the rules of procedure I think lawmakers took the correct course of action.

For lawyers confirming defaults, be aware that you should prosecute your case like you would any other judgment. That is, by creating a record and submitting documentary evidence and even testimony if possible. Also, it is uncertain whether this change will affect the ability to obtain a default judgment by mail. Despite the change in the rule, the policy at my firm forbids obtaining “mail-in” defaults. Our practice regarding default judgments is, and has always been, to conduct a trial (regardless of how small or short it may be) and produce witnesses and documentary evidence for the record.

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Changes to Louisiana Code of Civil Procedure: Summary Judgment

Some of you may already be aware of changes to Louisiana Code of Civil Procedure article 966 governing summary judgments. On its face, it appears that evidence is “deemed admitted” when it is submitted in support or in opposition to the summary judgment, and which is not addressed accordingly. The draft copy of the law states “objections to evidence in support of or in opposition to a motion for summary judgment must be raised in memorandum or written motion to strike stating the specific grounds therefor.” At this point, we can only guess as to what the practical and procedural implications will be.

The other notable change to article 966 is in subpart B(2), providing that in the event summary judgment is denied the court “should provide reasons for the denial on the record, either orally upon rendition or in writing sua sponte or upon request of a party within ten days of rendition.” Although the impact of this provision is also uncertain, it appears to aspire towards clarity. All of these changes became effective on August 1, 2013 and the Louisiana Legislature website already reflects these changes in the text. As always, your questions, comments, and observations in the comments are appreciated.

Sometimes it’s the little things

If this blog has any readers, then it should be evident that I’m big on handing out example forms. I will admit, the previous forms have been more complex and absolutely do not substitute actual legal advice; however sometimes its the simpler things that matter. A colleague asked me for a sample motion to reset the other day. So, if you’re new to the practice or just curious, here is an example form of a motion to reset.

Forming a corporation, LLC, and other business entities.

Forming a Louisiana business entity is pretty straightforward. The secretary of state website is very useful and contains all of the forms necessary to get your corporation, partnership, or LLC up to the proper legal status. Years ago these were things that only attorneys could do. Now, anyone with an internet connection can go to this link, fill out the proper forms, send the money, and you are now an official Louisiana business entity. All the forms you would every need for setting up your business can be found here.

Now you know where to go to create a business without consulting an attorney or an accountant. For most solo, or small family business entities without shareholders or stock value this remains a convenient and low cost way to do these things yourself . Obviously, I would encourage consulting a professional if you have any uncertainty or for more complex businesses. Much like a will, a lawyer can analyze your specific situation and do his or her best to avoid future complications.