Chaneys win appeal in Arkansas Supreme Court

We’ve written several times about our ongoing case involving an insurance company trying to represent its customers using employee-attorneys. We’re very pleased to announce that the Arkansas Supreme Court published its decision recently, and the Chaneys scored a complete win.

Our client was hit by a negligent driver. Farmers Insurance Company hired a well-known defense firm to represent the negligent driver. After about four months, however, Farmers tried to substitute its own in-house, employee-attorney into the case to represent the negligent driver. At that time, Nathan Chaney opposed this substitution on the grounds that it was illegal and unethical.

The Arkansas Supreme Court sided with Nathan’s argument. The Court applied an Arkansas statute that has been on the books for over 50 years. According to the statute, what Farmers was trying to do is the unauthorized practice of law. While Farmers’ lawyer challenged the constitutionality of the statute, it was upheld on appeal. Farmers also claimed that our firm could not raise this issue, but the Court summarily rejected that argument.

The Court’s decision was split 4–3 (our Supreme Court only has 7 justices). The remaining 3 justices would have held the statute unconstitutional because only the Arkansas Supreme Court can govern the practice of law in our state. However, those 3 justices also sided with our argument, since they held in a concurring opinion that “[a]n attorney may not serve two masters” because the attorney’s loyalties would be divided. A lawyer’s client has the right to undivided fidelity from the lawyer, and a corporation cannot provide the required loyalty. However, the Court reserved its strongest language for the divergent interests an insured and his insurance company have:

Further, an insurance carrier, for example, is a business and is naturally concerned with profits and retaining as much of the insurance premiums as possible, which translates in a lawsuit into a desire to pay as little in fees, costs, and judgments as possible. The insured’s interests are not the same as the insurance company’s, and those interests may vary greatly.

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The relation of an attorney to his client is pre-eminently confidential. It demands on the part of the attorney undivided allegiance, a conspicuous degree of faithfulness and disinterestedness, absolute integrity and utter renunciation of every personal advantage conflicting in any way directly or indirectly with the interest of his client.

As we have said in the past, this case is just one example of the way the Chaney Law Firm fights for the rights of individual Arkansans every day. The right to competent and unbiased counsel has been reaffirmed for every Arkansan who has an auto insurance policy, and we are proud to be protecting ordinary Arkansans against the interests of corporate greed.

Election/ABC services

I’ve been involved in several partisan, nonpartisan, and initiative races helping campaigns on the front lines and behind the scenes avoiding pitfalls, crunching numbers, and getting out the vote. If you’re running an election and need advice on how to educate your constituents and turn out the vote, give me a call.

INTELECTION:

I’ve designed custom software to assist in voter canvassing, which is code-named Intelection. Intelection provides political geolocation solutions that permit politicians, campaign managers, and volunteers to deploy assets and report contacts with constituents using real-time, door-to-door visualization software. Intelection helps campaigns identify likely voters with a minimum of effort. For a demo, please email info@nathanchaney.com.

Check out a screenshot:

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LOCAL OPTION ELECTIONS:

I’ve represented several citizen groups throughout the State of Arkansas during all phases of the local option election process, which is how counties in this state vote on whether to permit alcohol sales. I’ve prepared local option petitions, helped clients document proper training procedures, worked with election officials to clarify state law on who may sign petitions, counseled accountants on compliance with campaign ethics and finance rules, and worked in the campaign trenches. You can view some of my work in campaigning at the Facebook page I ran for a ballot question committee, A Vote for Growth in Clark County, in my home county.

A local option petition is subject to exacting scrutiny by our courts. Oftentimes, petitions will face substantial opposition from local temperance groups. If you are interested in forming a ballot question committee to get the wet/dry issue on your county’s ballot in the face of these challenges, I can help.

As part of a ballot question election in my home county, I have been responsible for running a new media campaign. At last count, our new media campaign reached 60% more eyes than the competition.

ABC LICENSES:

Once those local option initiatives pass, I also assist restaurant owners and aspiring entrepreneurs in navigating the often confusing alcoholic beverage regulations administered by our state. If you’re interested in selling alcoholic beverages at your business, I can guide you through the process.

The Alcoholic Beverage Control Division (“ABC”) regulates the sale of alcohol in our State. While there are over forty (40) licenses offered by the ABC, these various licenses fall under two general categories. The first type is for off-premises sales and includes places like package stores, grocery stores, or convenience stores. The second type of license is for on-premises sales and includes outlets like restaurants and hotels. The requirements for your application will depend on the type of license you’re seeking. All license types require a preliminary background check, and you’ll need detailed information about your business, your facility, and your proposed floor plan.

The application process may include hearings before the ABC’s board and appeals to our courts. The best way to avoid problems is good documentation of your business’ plans. I’ve done this before, and I’d like to help you get your license.

Chaney Law Firm fights for the use of objective medical technology tools in court

Our firm handles quite a few connective tissue injury cases. While some types of these injuries can be seen on some MRI machines, the extent to which connective tissue has been injured is usually assessed by how motion of joints is altered due to the injury. For example, the following analysis is performed for a cervical spine injury:

This is an excerpt from the American Medical Association's Guidelines to the Evaluation of Permanent Impairment ("AMA Guides"), which treating physicians usually follow in quantifying the extent of a connective tissue injury. The physician draws lines on x-rays and compares adjacent levels of the spine in a process known as radiographic mensuration analysis. Where the angles between adjacent levels exceed 11º, the AMA Guides state that the patient has a 25% permanent whole body impairment. Physicians have been performing these types of measurements and diagnoses for around a century, and the AMA Guides have required them since 1993.

Historically, this analysis took quite a bit of time and effort on the part of the physician. However, in the early- to mid-1990's, some physicians recognized that this process could be computerized and set to work creating software to perform the analysis. The resulting diagnostic procedure is called computerized radiographic mensuration analysis, or CRMA. The result is sometimes referred to as a "digitized x-ray," since plain film x-rays can be scanned and analyzed as well. Since the late 1990's, many scientific research articles, clinical practice guidelines, and healthcare associations have recognized that CRMA is easier, faster, more reliable, more repeatable, and more accurate than hand-derived measurements.

Just before a scheduled trial date for one of our clients in early January, a trial judge in Texarkana ruled that CRMA was "a mere technological advancement of established, reliable mensuration procedures such as the one utilized by the AMA Guides." For that reason, the trial judge rejected a defense challenge to the use of impairment evidence based upon CRMA and the AMA Guides. We at the Chaney Law Firm are proud to be defending the right of injury victims in Arkansas to use objective, repeatable technology tools to quantify their injuries.

Thoughts on the Patent Reform Act of 2011

The Patent Reform Act of 2011 (“PRA”), if passed, will represent a complete overhaul of the U.S. patent system. The bill changes many procedural and substantive aspects of patent law.

1. The first major change is shifting the U.S. from a first-to-invent country towards a first-to-file country, except in certain circumstances where competing patent applications were co-inventors of an invention. This brings the U.S. more in line with the rest of the world, which generally follows a strict first-to-file rule. The first-to-file rule is easier to administer for patent offices and courts alike. This change does not include an absolute novelty requirement, which is also found in most foreign countries. Rather, the U.S. will retain the rule that a patent applicant must file an application within one year of the first public use or sale of an invention. I like the idea of moving towards a first-to-file system for its ease of administration, the elimination of potential abuses, and the encouragement to use the patent system.

2. The second change deals with damages. Following some jury verdicts in the $500 million range in patent cases over the past decade or so, some believe that more stringent caps on patent damages are warranted. The PRA would enact procedural hurdles for federal district court judges handling patent cases, such as making pretrial rulings on damages issues and bifurcating the damages portion of patent infringement trials. Essentially, these hurdles would require a federal judge to devote even more time, money, and effort to trying a patent infringement case. In my experience, most federal judges do not have the same familiarity with the patent laws they do with other types of substantive law, which makes it hard for them to comply with the current, less stringent procedural requirements. In my opinion, these new requirements will add to the number of cases reversed on appeal. From a court-clogging perspective, the damages amendments will probably exacerbate any perceived docket issues.

3. The third major change deals with how courts enhance damages against persons willfully, knowingly, or recklessly infringing a patent. The current rule provides that a court may award up to treble damages against an infringer depending on the facts shown. The amended rule would require proof by a standard of “clear and convincing evidence” that infringement was willful, and sets forth guidelines about what constitutes willful infringement. While this section is touted as reform, the guidelines really just codify existing case law, and I have no problem with this. The real change comes from the heightened burden of proof; as a practical matter, I can’t see the burden of proof affecting trials much. It will have the most impact in cases on appeal. I don’t believe a heightened burden should be in place for enhanced damages; these are punitive in nature and serve a deterrent effect against infringement.

4. The fourth change allows a corporation to more easily apply for a patent on behalf of an inventor. Current practice requires the corporation to notify the inventor and attempt to get him or her to participate before filing the application. If the inventor refuses, the corporation can file a petition seeking to involuntarily name the person as an inventor and must show the reasons why the corporation can apply for the patent. Essentially, current procedure focuses on protecting the inventor. The new approach would focus on protecting the corporation. While the corporate-centric approach would probably make it slightly easier to further the Obama administration’s focus on innovation, I believe the inventor-centric approach is the better one. The patent laws derive from the Constitution, which grants exclusive rights to inventors for their inventions. The Patent Office is already a tough place for a solo inventor or small business, and it doesn’t need to be made tougher for regular people.

5. The fifth change would see the PRA eliminate false marking litigation by private parties unless by a competitor who can prove a competitive injury. As the law stands now, anyone can bring suit on behalf of the government for penalties against a person or company who falsely marks a product as patented. The purpose of the law is to keep people from being able to improperly inflate the cost of their product because others will not enter the market for fear of being sued for patent infringement. Some organizations known as “trolls” have recently begun making a cottage industry out of false marking litigation. While the false marking litigation probably is a little excessive right now, I believe proof of competitive injury is too high of a bar for this type of litigation. Perhaps a middle ground would be appropriate, where only a competitor can bring suit but competitive injury is a rebuttable presumption. This would serve to limit the amount of false marking litigation while at the same time serving the intent of the original law.

6. The final major change broadens the amount of third-party participation in the patent process. Third parties can currently file limited proceedings, very similar to lawsuits, with the Patent Office opposing patent grants to others. The proposed legislation would allow third parties to submit publications they believe are relevant to the examination of pending applications and recently issued patents. The goal with this expansion is to ensure that higher quality patents issue from the Patent Office, which is a by-product of the examiner having all relevant information in front of him or her. I believe this is a good idea, since many court battles could be avoided by having third parties provide information and comment on the patentability of pending applications.

There are several other changes in the law, but these are the main points. Overall, I believe the Senate Judiciary Committee did a good job. I do wish the proposed amendments had been more inventor and small business centric, rather than major corporation centric. This is unsurprising, however, since most of the patent applications granted in this country go to larger corporations.

I encourage you to write your elected representatives in Washington and encourage them to think hard and offer constructive criticism on the PRA. I will be doing the same later today.

Don appointed to Ouachita River Commission

Don Chaney was appointed to the Ouachita River Commission by Governor Mike Beebe late last year. The purpose of the Commission is to promote the recreational benefits and preserve the integrity of the river. Don's appointment will last through August 2017. Don is a perfect appointee to this position, as the Ouachita River has long been his favorite recreational destination.