Police and Governmental Liability Case Filed against the State and Pocahontas County

Here is a copy of a police liability/ governmental liability lawsuit that I filed last week against various agencies of the State of West Virginia, Pocahontas County, and several private corporations and individuals – including Snowshoe Mountain – on behalf of Brent Carter Flanary.  Since the case is obviously pending, I can’t comment on the facts other than to summarize what is in the pleadings, which are lengthy.  This case is about a man who had everything and ended up with nothing.

 The Complaint alleges that Mr. Flanary, who had a condo at Snowshoe and was going through a bitter divorce, was forced “off the mountain” by Snowshoe officials, with the help of local and state law enforcement – all of whom were communicating with Mr. Flanary’s ex-spouse.  During this process, Mr. Flanary suffered imprisonment, both in a jail and in a mental hospital, for over a month’s time, was beaten, sexually assaulted, attacked with gas grenades, tasers, German Shepherds, and fists – all over allegedly being publicly intoxicated, for which incarceration isn’t even a potential punishment (1st offense).  None of the aforesaid “use of force” incidents were in any way memorialized in a police report or “use of force” affidavit.  Instead, they were covered-up until after the expiration of the one year statute of limitations for false arrest and false imprisonment.  Additionally, much of the conduct underlying these allegations were videotaped.  One of the video tapes emerged nearly two years later, conveniently missing the relevant footage at the end of the digital footage (and also after the lapsing of the aforesaid statute of limitations).  Another video tape has yet to emerge.  But this didn’t stop the prosecutor – and now disbarred assistant prosecutor – from attempting to bring Mr. Flanary to trial on the criminal charges (without production – or even admission of the existence of – the video tapes).

You may not want to take all the time necessary to read the entire document.  However, this Complaint may be useful to other West Virginia attorneys who are facing – or considering –  police liability or governmental liability cases.  The area of law is extremely complex and tricky, and there’s not a whole lot out there to review prior to filing your own case.  A considerable amount of research went in to the drafting of this Complaint, including the review of just about every police liability case filed in West Virginia in the last five years.   – John H. Bryan, West Virginia Attorney

UPDATE:  State Journal story on the Flanary case posted 1/8/09.

                     Pocahontas Times story also posted 1/8/09.

View this document on Scribd

Stranger than fiction…

The strangest thing happened yesterday, and I have proof.  My office sent a letter to Directv in Arizona, regular U.S. Mail.  But it didn’t arrive there. Instead, it showed up in the mailbox of a physician who is family friend in Melbourne, Florida.  But not only is he a family friend, he has a farm in West Virginia as well.  It was properly addressed to Directv in Arizona.

 

Lawyers per capita in West Virginia

Since it was mentioned in my last post that new law school graduates are probably having a tough time during these tough economic times given their annually increasing number, I thought it pertinent to comment on a post at Simple Justice regarding the number of lawyers per capita in New York.  I looked up West Virginia for a comparison.

Scott Greenfield writes that for every 21 people in Manhattan, there is one lawyer: 

For many lawyers, the “big fish in a small pond” aphorism applies.  Not for lawyers in Manhattan.  It’s not easy surviving, no less thriving, in an environment so lousy with lawyers.  Hesitate and some other lawyer has just jumped your potential new client.  Have your receptionist take a message and the next one (or 1000) will take the call.

According to the Avery Index, overall, the District of Columbia leads the states with 276.7 lawyers per 10,000 residents, with the State of New York trailing at 20.4 lawyers per 10,000 residents.  Given these numbers, and having worked in D.C. before, I would have to disagree with Greenfield that New York is the most lawyer-saturated and competitive legal market.  D.C. is absolutely riddled with lawyers, thanks in most part to the federal government.

West Virginia ranks number 25 on the list with 8.8 lawyers per 10,000 residents, just behind Maine.  North Dakota ranks last with just 4.4 lawyers per 10,000 residents.  What about individual West Virginia counties?  I did my own non-scientific (and most likely non-accurate) study across five different types of West Virginia counties (bear with my math here, I may have done something horribly wrong):

Kanawha County: approximately 1 lawyer for every 106.4 people (roughly 93.98 lawyers per 10,000 residents)

Raleigh County: approximately 1 lawyer for every 528 people (roughly 18.9 lawyers per 10,000 residents)

Mercer County: approximately 1 lawyer for every 450 people (roughly 22.2 lawyers per 10,000 residents)

Greenbrier County: approximately 1 lawyer for every 430.7 people (roughly 23.2 lawyers per 10,000 residents)

Summers County: approximately 1 lawyer for every 812.5 people (roughly 12.3 lawyers per 10,000 residents)

Monroe County: approximately (but slightly more accurate) 1 lawyer for every 2,430.5 people (roughly 4.1 lawyers per 10,000 residents)

Note: these numbers will be slightly overestimated because they also include judges and non-practicing attorneys who reside in the particular county (with the exception of Monroe County since I already took the time to ferret those out)

 - John H. Bryan, West Virginia Attorney

Bailout for divorce lawyers?

There was an article yesterday in the Wall Street Journal jokingly wondering where the bailout was for the nation’s divorce lawyers.  They note that unlike bankruptcy or personal injury practice, divorce filings drop off steeply in a recession.  Apparently divorcing spouses are able to put financial planning ahead of their immediate differences.  

I have noticed as a regular pattern that the number of people calling about divorce situations drops off during the cold winter months – usually with the rest of the West Virginia economy.  Then, like clockwork, as soon as spring hits, and the birds and the bees return, so does the inclination to start looking for a divorce lawyer. Of course, there are those divorces that pop-up regardless of the economy and finances – and those are truly special cases, sure to give any attorney that personal gratification that comes with handling a very special divorce case.

The article also notes that: 

There are now some 1,162,124 attorneys in the U.S., and the law schools are spewing out graduates at a rate of 43,518 a year, all set adrift upon a public that increasingly doesn’t have money to pay for their services. There is no other profession more dependent on discretionary spending, except perhaps the oldest one.

People don’t realize that, unlike the medical, dental, or veterinary professions, there really is no limitation on the amount of students that can attend law school.  They are all over the place, and there are more popping up every year.  If you really want to get in one, you can somewhere.  But that doesn’t mean there is a job waiting for you when you get out (in debt).  

 - John H. Bryan, West Virginia Attorney

Trooper Misconduct Alleged in Kanawha County

The Charleston Gazette published an article today entitled, “Woman alleges trooper forced sex.”  This is an odd case.  Something just isn’t right.  The allegation is that this woman was leaving a bar in downtown Charleston and was pulled over by this trooper for suspicion of DUI.  During the course of the DUI stop there was some conversation between the two and the trooper ended up following her home to her married friends house.  There she alleges that he pressured her to have sex and that she only complied because he was a state trooper.  

The really surprising part is that this was at least partially caught on a surveillance camera by the married couple who lived in the home.

If I’m wearing my police liability hat, this sounds like a good case with rare video tape evidence of police misconduct and a potential rape situation.  But when I put on my criminal defense hat, this seems extremely suspicious.  The central question that I want answered is, who, what, where, why and how was this surveillance footage captured?  Could this be a set-up?  Did she call ahead?  If so, why not just call 911?  

With respect to a police liability civil case, there’s really no excuse for the trooper to have been in this house.  He most likely will have to explain that he went there consensually with her, which may not be illegal, but may get him fired and may get the State sued.  But from a criminal case standpoint, this woman’s story is extremely fishy.  It will be interesting to find out what the deal is with this video.

 - John H. Bryan, West Virginia Attorney

10 Things Never To Put In Email

Yesterday Roger Matus posted the 10 Things Never To Put In Email, at his Death By Email blog.  Here they are:

1. “I could get into trouble for telling you this, but…”
2. “Delete this email immediately.”
3. “I really shouldn’t put this in writing.”
4. “Don’t tell So-and-So.” Or, “Don’t send this to So-and-So.”
5. “She/He/They will never find out.”
6. “We’re going to do this differently than normal.”
7. “I don’t think I am supposed to know this, but…”
8. “I don’t want to discuss this in e-mail. Please give me a call.”
9. “Don’t ask. You don’t want to know.”
10. “Is this actually legal?”

Electronic documents are increasingly becoming an important aspect of all types of litigation, including criminal cases.  But illegally accessing that information has also become a crime in and of itself – and a federal one at that.  Thus, I’m working on a future post entitled, “101 Ways to Get Into Trouble Using Email.”  In summary, it’s not a good idea to put anything in an email that you wouldn’t be comfortable having displayed to a panel of twelve jurors on a huge screen.

 - John H. Bryan, West Virginia Attorney

FOIA lawsuit and West Virginia statutory notice provisions

There was a Charleston Gazette article last week detailing a ruling by a Kanawha County Circuit Court judge dismissing Massey Energy’s FOIA (Freedom of Information Act) lawsuit seeking emails from Supreme Court Justice Larry Starcher.

The grounds for dismissal were failure to comply with the statutory notice provisions.  When you are suing the state, even with respect to a FOIA case, you have to comply with the notice provisions of W. Va. Code Section 55-17-1, et seq. – which means that you have to give written notice via certified mail, return receipt requested, to both the “chief officer” of the state agency and the Attorney General, of the “alleged claim and the relief desired.”  It’s pretty basic really, though I ran afoul once in sending notice to the “general counsel” rather than the “chief officer.”  But regardless, there’s not much case law on the topic for either side in these situations.  But, if you don’t send the notice at all – to anyone – then the suit absolutely cannot proceed.

I was in court this morning on a governmental liability case such as this, and the attorney representing the other side is perhaps the most respected and knowledgeable attorney in West Virginia regarding these types of governmental liability issues.  He told me the behind-the-scenes story behind the adoption of this pre-suit notice statute, which I won’t recite here, but let’s just say that, like everything else in West Virginia, every statute has it’s ulterior motives.  The legislature should be required to put this stuff on the legislative record so that you can bring it up in your arguments.  Circuit Court’s usually don’t take judicial notice of attorney gossip.

One point of confusion is possibly this: if you sue over a FOIA violation against a political subdivision (i.e., county or city), W. Va. Code Chapter 55-17 doesn’t apply – there’s no notice required prior to suit.  The statute only applies to the state and all of it’s agencies and appendages.  And, the Supreme Court is an appendage of the state – and needless to say is usually not a good party to have on the other side of your lawsuit.  But then again, a very prominent attorney in the state asked me, after I brought up this issue, “is there anything wrong with writing someone a letter to tell them your gonna sue them?”  I guess there’s not – especially if you want to put their insurance carrier on notice of the potential claim.

Anyways, as a “little guy” who is almost always the “David” fighting the “Goliath” law firms, it makes me smile a little bit to see a big firm, representing possibly the most lucrative client in the state, make a mistake such as this.  They probably had gobs of lawyers working on this case, and had all the resources in the world at their disposal – and they still messed up. But all clients – even huge corporate clients – in the end, must count on individuals, both with their attributes and their mistakes.  

A Florida trial lawyer who was a family friend once said to my father (talking about taking on big firms): “though they may have a hundred lawyers working on the case, can’t but one of them speak at a time.”

 - John H. Bryan, West Virginia Attorney