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Rockingham County Bar Association Presents Meet The Judges

Ralph Barbagallo Jr President RCBA

Who Should Pay?

This session of the New Hampshire Legislature has a bill before it to amend RSA 507:7-e,1a the so called ”Apportionment of Damages Statute” .The purpose of this bill is to remedy an inequity which resulted from a decision in the 2006 case of DeBenedetto v CLC Consulting Engineers .In that case the jury was allowed to apportion uncollectable damages to a party not named in the lawsuit and in fact immune from liability . The argument made in support is that it is not fair for a defendant to pay for damages caused by another “party” possibly at fault but not a party to the lawsuit . The present statute is apparently a compromise from a pure joint and several liability concept where any at fault defendant is liable for the total damages regardless of their contribution to the injury . Under the present statute a defendant is only liable for his share of the damages if his damages are less than 50%. If his contribution to injury is over 50% he would be liable for the total damages . On the other hand a plaintiff who is more than 50% at fault for his injury would recover nothing . The argument that a partially at fault defendant shouldn’t bear the burden of paying all the damages where there is another party possibly at fault who can’t be sued forces the cost of injury to be borne by the plaintiff . Is it therefore fair that an injured party bear the burden of paying for a party that couldn’t be sued in the first instance ? Often times the Courts in interpreting a statute or attempting to determine legislative intent use the term “Social Policy”. Social Policy is not a legal term. It’s an extralegal attempt at fairness by benefiting a class . It seems that a fairness argument in this case should apply to the injured party not those scrambling to escape responsibility

Early Offers For Medical Injury Claims IN New Hampshire


A Bill has been introduced this session repealing RSA 519-C which was supposed to serve as   an alternative to litigation. The Early Offer Statute which survived a veto by then Governor Lynch seems to be opposed by both Medical Malpractice Insurers and Attorneys representing injured persons. This concept has been rejected by every other jurisdiction in the United States where it has been proposed. The Law severely limits damages and proscribes penalties against persons who elect to sue because they feel the offer is not satisfactory with no corresponding penalty against hospitals and medical providers  if the award is greater that the offer . Medical Malpractice Insurers are also unhappy with the law. It has no provision for paying off insurance companies that want to recoup disability payments made to victims of malpractice. And an insurance company that settles a malpractice claim can’t go after other health care providers whose conduct may have contributed to the patient’s injury.

I think it’s not too early  to say bye bye to the Early Offer. 

Landowners Liability for Recreational Activities in New Hampshire


A Bill has been introduced this session amending RSA 212:34 whereby a landowner who permits her land to be used for recreational purposes would owe NO duty of care to persons on the premises involved in the construction of facilities related to such recreational activities. I spoke against this amendment at the meeting of the Legislative Committee of the N H Bar on the basis that the encouragement of recreational land use should not be used as a pretext to denying injured works their rights.

 Furthermore,  the  amendment does not incorporate other language in the present bill that does not limit liability which otherwise exists for  [1]willful  or malicious failure to guard or warn against a dangerous condition, use, structure, or activity   [2] injury suffered where permission was granted for a charge [3]injury caused by acts of persons to whom  permission was granted to third persons to whom the landowner owed a duty to keep the premises safe or warn of danger [4]intentional acts of the landowner  . The committee is bringing  these important omissions to the attention of the Board.   

Loser Pays Part 2


A bill has been introduced again this year in the N H Legislature with the concept of loser pays .This year it applies to Tort Actions , that would include motor vehicle accidents ,libel or slander ,professional malpractice ,business torts ,products liability wrong full death etc. This concept of loser pays is based on the mistaken notion that our courts are flooded with frivolous  lawsuits and would make the losing party pay legal fees and expenses for the prevailing party and is known as “The English Rule”.

AS I stated at the initial meeting of this year’s N H Bar Legislative Committee “WE are not England .WE separated ourselves from England  hundreds of years ago and we don’t  have a Queen.” Our system of Civil Justice attempts to give both rich and poor access to the Justice System . . The reality of imposing loser pays  is, that  it would put our legal system beyond the means of persons of modest means. The wealthy can afford legal representation and if they lose  ,so what. It’s only  money .  The threat of losing  would  have a chilling effect on the rest of us even with meritorious claims

The solution already available would be to petition the Court early in the process to dismiss the lawsuit and if in the Court’s judgment the lawsuit is utterly lacking in merit then to assess costs and fees. The assessment of fees should not be done automatically .Someone always wins and someone always loses a lawsuit. It doesn’t mean because someone loses a lawsuit it is without merit. Lawsuits have had a positive effects on  improving the delivery of professional services and the safety of the vehicles we drive . Do we really want to give that up for those individuals who think a lawsuit by its very nature is frivolous ?



A Discussion of  Juliano v Simpson and Where the Court is Going

Okay you are away on vacation. Your two children Drinka and Lotti decide to have a few dozen friends over for a “BYOB ”  party . One of the guests Soucy   becomes inebriated and attempts to drive home . On the way   home  he goes through a red light crashing into a vehicle in which are a family of five . The result —  Two Fatalities.  Are the parents liable to the injured parties?

Under current  Massachusetts  law NO because the parents “social hosts” did not supply the alcohol .

Now what if the parents were leaving when they saw all the guests coming to their house with kegs and six-packs etc .  Still NO because they did not supply the alcohol .

The Massachusetts Supreme Court has refused to expand “social host”  liability   In part due to a lack of consensus regarding “social values and customs” as evidenced by the State Legislature’s reluctance to pass a statute allowing civil remedy .

However   one judge in her opinion concurring with the result but dissenting with the reasoning in the Juliano   case , has suggested in the future, given the proper factual scenario, a  parent /homeowner ought to be held liable in a situation where they knowingly make their home available to drink alcohol [example #2 above ]  even if the Legislature has failed to take the initiative.

To be certain you are not the test case  it behooves parents not to turn  a blind eye to alcohol   being served in their home  .




There is an evolution taking place in the way in which we resolve our legal disputes . Budgetary pressures have forced layoffs, closure of courts on certain days, reduction of business   hours   causing Judicial vacancies to go unfilled . The result is hampering the resolution of cases by the postponing of trial dates and in some cases delaying civil trials   as much as 2-5 years  .

            In response to these forces Mediation and Arbitration have become more widely utilized by parties .  Mediation is  nonbinding. The parties agree on a Mediator   and then present their cases informally. The parties are then separated and for the remainder  of the session the Mediator goes back and forth in an attempt to narrow the differences and ultimately  settle the case . Arbitration is binding on the   parties.  However    once again   the presentation  of evidence is informal   cutting down the cost of litigation.

A new development is the emergence of the private trial. The Private Trial is just like an actual courtroom trial except the parties select the judge , possibly a retired judge and  private   jurors are  recruited for professional or personal expertise . The parties are in control of scheduling which can be daunting in the Trial Court where there is little flexibility, trial days are sometimes only  a half day thereby extending the length trial  and the parties are subject to interruptions  in their trial due to other court business . In addition Video Conferencing and Skype   can be used for out of state witnesses in the Private Trial.






Our tort system in the United States allows persons injured by the   negligence  of  others to seek redress for the economic and emotional harm done to them .

The concept of insurance spreads the risk among all holders of insurance in order to   provide   compensation for those injured. Most folks would find it difficult to afford an experienced   attorney at an hourly rate of $300-$400 per hour to   provide counsel , evaluate  the claim ,conduct an investigation ,sort through  the maze of   insurance regulations and finally negotiate or file suit on a claim .  

It   is often difficult to know the extent of the injury right after the incident Paying an hourly fee could result in the injured party paying more to his attorney than he could collect in   damages .

          The solution to getting legal representation without having to advance fees is the Contingent Fee. Under this arrangement fees are only paid when a case is resolved .At that time the attorney receives a percentage of the settlement ,  under an agreement entered  into at the outset of the representation .

          In this way the injured party can deal with  an insurance   company on equal footing   and does not  risk paying legal fees without getting anything in return.




You have had a motor vehicle accident. Upon impact you struck your head on the steering wheel or were violently whipped about . Or perhaps you have fallen and struck your head on a hard surface. You may have lost consciousness or not. Now   your experiencing dizziness, headaches,   nausea, lack of motor coordination, lightheadedness, blurred vision ringing in the ears and changes in sleep patterns.   . You may have suffered a mild brain injury .You should immediately consult with your physician .  He or she may refer you to a neurologist for an examination and testing such as a CT Scan or an MRI. It   is important you seek emergency treatment immediately.   

Lawyers and Judges

In a recent Editorial the Eagle Tribune proclaimed “Lawyers should not be appointing Judges”. The Editorial was a response to an adverse decision by the Department of Industrial Accidents in favor of a former Lawrence Department of Public Works Supervisor Andrea Traficanti . The controversy centered around Judge John Preston’s Decision and his relationship with Traficanti’s Attorney Michael Torrisi.

First and foremost it should be noted that it is the Governor who appoints Judges with the advice and consent of the Executive Council. Torrisi’s role in the process was as a member of a 13 member review panel established by Executive Order and consisting of the Governor’s Chief Legal Counsel, the Director of Labor and Workforce Development, the Judge of the DIA and eight members to be appointed by the Governor, one of whom shall be a health care provider, one of whom shall be an attorney who does not practice workers’ compensation law, one of whom shall be an attorney who presents claimants in workers’ compensation matters, one of whom shall be an attorney who represents employers or insurers in workers’ compensation matters, two of whom shall be representatives of business and two of whom shall be the representatives of Read more…