By: Ben Robinson

This article first appeared in the August 2022 edition of CLM Magazine, and can be found on their website here.

In the defense of personal injury cases, traumatic brain injuries (“TBIs”) are often alleged to have occurred, but TBIs sometimes can be difficult for plaintiffs to prove despite sophisticated medicine, neuropsychological testing, and biomechanical evidence.

There are generally three categories of TBIs: mild, moderate, and severe.  These classifications typically correspond to the injured person’s Glascow Coma Scale score, which assesses a patient’s motor, verbal, and eye-opening responses following the head injury.  Treating physicians will also order CT scans of the head and brain as soon after a suspected TBI as possible.  The CT is useful to detect blood in and around the brain and bone fractures.  An MRI, if ordered at all, typically comes later, after the patient’s condition stabilizes.  The MRI can show brain lesions that are undetectable by the CT.

Many TBIs from car accidents and work site injuries are somewhere on the continuum between mild and moderate.  And often, the standard neuroimaging (CT and possibly an MRI) does not show any abnormality even in patients who have experienced mild to moderate trauma.  In the presentation of evidence during litigation, CTs and MRIs are not usually remarkable looking to laypeople.  A radiologist must explain what he sees in the imaging, but not what most anyone else sees.  This leaves the plaintiff without a stunning and memorable exhibit for the jury and allows the defense to question the seriousness of the alleged injury.

Enter diffusion tensor imaging (“DTI”) – a relatively new and more sophisticated MRI technique that gives a much more detailed look at the neural network of the brain.  The DTI MRI creates its image from the random thermal movement of water molecules in the brain along white matter fiber tracts.  A disturbance or absence of movement in the white matter fiber tracts suggests a TBI.  The patient’s DTI MRI can be compared to control samples of individuals who have not endured a TBI.  The areas of apparent disturbance within the brain can also be analyzed for association to the patient’s reported symptoms of cognitive deficits.

Interestingly, treating physicians do not typically order DTI MRIs because the confirmation of disturbance of the white matter in the brain does little to help the physician determine appropriate care for the patient.  Medically speaking, the DTI MRI serves little to no functional purposes for diagnosis or treatment.

Consequently, a plaintiff’s attorney may retain a radiologist – preferably a neuroradiologist – as a consultant to order and interpret a DTI MRI.  There are additional expert witnesses in this field who do the comparison of the plaintiff’s images to the control groups and also analyze the areas of most likely impact upon cognitive function.  If the DTI MRI does not offer the hoped-for evidence of TBI, the odds are good that the defense will never learn about the DTI MRI or the engagement of these consultants.

But if the DTI MRI indicates abnormality in the plaintiff’s brain, the DTI MRI will become a major piece of the evidence of the alleged TBI.

Why should defense attorneys care about the DTI MRI? The answer is: juries.  The DTI MRI is a very colorful and memorable image for jurors – particularly where the comparison of the plaintiff’s DTI MRI is a stark contrast to healthier examples of DTI MRI subjects.  Whereas a healthy brain image may give the impression of robust brain activity, an unhealthy brain image depicting disturbed, limited, or no neural movement in the fiber tracts (i.e., no color or less color) may give a juror the impression that the plaintiff has suffered substantial brain damage.

Imagine plaintiff’s counsel giving an opening statement and introducing side-by-side photos of DTI MRI images as a preview of expert testimony to come. Members of the jury would be impressed from the outset of the case by what they saw on a screen before they had even heard from a medical professional. The same photos would be placed before the jury again during the case in chief, only for a longer amount of time, giving the jurors additional chances to form their impressions as experts explained the images.  While it is not likely that the average juror could repeat an expert’s explanation of what a DTI MRI is or what it is supposed to depict, they would not forget the apparent impression that the plaintiff’s brain image did not look like the healthy brain image comparator.

There are means of undermining what the DTI MRI can really prove about an alleged TBI, but DTI MRIs and the experts interpreting them are holding up against reported Daubert challenges and motions in limine.  The science behind the imaging is legitimate and reliable.  It would be unwise for the defense bar to dismiss DTI MRIs and their interpretation as novel or junk science, since they have been introduced in courtrooms for well over a decade now. Instead, the defense bar must learn to manage this new evidence when it appears.

First, in addition to engaging a neuropsychologist and perhaps also a biomechanical expert, counsel should engage their own neuroradiologist consultant or testifying expert as soon as they become aware that a DTI MRI is part of the plaintiff’s TBI case.  Often, qualified neuroradiologists who have experience interpreting DTI MRIs are found only in larger cities with research and teaching hospitals.  These experts can be expensive.  But finding such a person who is willing to assist is invaluable to helping an attorney become educated for discovery and for trial.

Second, defense attorneys can focus energy on criticizing the weight and reliability of the DTI MRI evidence rather than focusing solely on trying to exclude it.

• There is rarely, if ever, a pre-TBI “before” image of the plaintiff’s brain for comparison. Without a comparison, it cannot be conclusively proven that the disturbance depicted in the DTI MRI was caused by the underlying accident.
• The comparison of the plaintiff’s image to one, or more commonly, several, other DTI MRI images is an unfair one if the comparison subject or subjects are not a close match in all relevant respects – gender, age, right vs. left handedness, overall health, socioeconomic background, academic performance, intellectual testing, and social history. Those factors all matter, and any honest expert making a comparison between the images must admit this.
• Moreover, the control group comparisons used by DTI MRI expert witnesses for the plaintiffs’ bar often use brain images designed for group comparisons rather than for individual-to-group comparisons.
• Finally, there is the possibility that the same strength of MRI Tesla magnet was not used on comparator MRIs. Expert witnesses are invaluable for identifying these weaknesses.

If you encounter DTI MRI in your next TBI case, take this evidence seriously, and do not underestimate its potential impact on jurors.  Consult your defense counsel networks for expert witness referrals and educate yourself on the science behind DTI MRI.  You will not regret working early to rebut this impactful part of the plaintiff’s TBI case.

Ben and the attorneys in the firm’s litigation practice group regularly defend serious personal injury cases in Alabama. He can be reached at brobinson@wallacejordan.com or (205) 874-0393.

By Jonathan A. Griffith

Previously published by The Alabama Lawyer.

Many attorneys love the idea of connecting a loving family with a child in need of a forever home, but are intimidated by the adoption process. This article is designed to help those lawyers.

Overview – Statutory Nature of the Adoption Process

The adoption process is statutory, and it demands strict compliance with Alabama’s Adoption Code, all of which is located in §§ 26-10A-1 to -35.

Pre-Placement Investigation (“Home Study”)

The adoption process begins when you file a petition for adoption. More about the petition is below.

However, when possible, the first step should be a pre-placement investigation (“home study”).[1] While it is ideal to complete this step before filing the petition, sometimes there is simply no time to complete a pre-placement home study, and the court may waive the requirement, or it may order a post-placement home study instead.[2]

The purpose of the pre-placement home study is to determine the suitability of the petitioners’[3] home (which is the adoptee’s future home), and it includes a criminal background investigation. The statute allows the petitioners to initiate the home study by a direct request through DHR or a licensed child-placing agency, or by filing a request with the probate court.[4] The petitioners should include a copy of the home study report with the petition for adoption.[5] By statute, the home study must be performed by DHR or a licensed individual or agency.[6]

However, the statute does not require a pre-placement home study for adoptions by stepparents or by relatives falling within one of several statutory categories.[7]

Read the whole article onThe Alabama Lawyer.

Need adoption advice or other family law matters? Contact the attorneys in our Christian Conciliation practice group today.

Alabama Rules of Professional Conduct require that the following language accompany any communication concerning a lawyer’s services: “No representation is made that the quality of the legal services to be performed is greater than the quality of legal services to be performed by other lawyers.” 

By William A. Ratliff

Whether it’s written or oral, communication is the legal profession equivalent of blocking & tackling — and it comes naturally to most attorneys. I suspect most of us would grade ourselves pretty highly on our communication skills.

That said, I have to wonder if we’re intentional enough about what we communicate, and the messages we send throughout the day.

Client Behavior In A Courtroom

When I was an active litigator myself, I always told my clients that, during trial, they needed to be careful to watch what they did, who they talked to, and what they said. I made sure they understood that, whenever they were in the courtroom, they were on stage — even when they weren’t testifying. Jurors could be watching them any time — observing their behavior, gauging their interest in the proceedings, and trying to figure out if they were likable, believable and trustworthy.

In other words, client behavior is a powerful communicator of messages to a jury during trial.

The Same Is True In Mediation

I recently conducted a mediation between two Korean parties. Most of the day was spent speaking through a translator. It was awkward and difficult. I found that I needed to pay more attention to what I was communicating. I also found that I chose my words more carefully, and paid more attention to my facial expressions.

It was a powerful learning experience for me personally. It also got me thinking about other lawyers I’ve observed, over the years, who weren’t as apparently conscious of what their own nonverbal cues and messages were communicating.

Don’t Tip Your Hand

In a mediation, as in a jury trial, every participant’s move is scrutinized. Messages sent through the mediator in a caucus, or delivered by an attorney in a joint session, are all noted and analyzed by the parties. Everyone’s looking for hidden messages they can glean from nonverbal communications. Poker players often call messages like that “The Tell” — behavior indicating what’s in another player’s hand.

All of this communication can be used by an attorney to his/her advantage in the negotiation process. Acting on The Tells they get from the other side’s messages, attorneys & clients to encourage, discourage, motivate, demotivate, excite or anger their opponents.

And Don’t Misinterpret

One of my roles as a mediator is to coach parties to send clear messages, and to make sure lawyers and clients don’t misinterpret messages communicated (intentionally or inadvertently) by the other parties. I spend a great deal of time discussing this with my clients — making sure that the messages they’re sending are the ones they want to send.

Attitudes Are Contagious

I’m always careful about what I communicate in mediations. I always try to be the positive individual in the room. I want the parties to see that I’m optimistic and confident about our chances of settlement — because optimism and confidence are every bit as contagious as negativity. On the other hand, it’s also my job to communicate to my clients when I sense the opportunity for settlement is slipping away.

Although a good mediator should strive to keep the tension level in a mediation low enough that everyone maintains their best professional decorum (and their best poker faces), it’s important to remember to be always intentional about what we want to communicate in the room. After all, people are literally “hanging on our every word.”

Need an experienced mediator or mediation advice for your situation? Contact William A. Ratliff or one of the other attorneys in our Arbitration and Mediation practice group today.  

For further reading on mediation, please see William’s blog Mediation Insights.

Excerpted from Previous Articles by Rick Bragg and Richard T. Davis

History really was made here, in the college town of Starkville, Mississippi, not far from the Alabama line. One of the last unwritten taboos in college sports really was busted here, amid the darkpine barrens and clear-cut timber and nowhere roads, when Sylvester Croom was hired as the first Black head football coach in the storied Southeastern Conference. Yet if you ask players, fans or university officials whether history has been made, they tend to say much the same thing, at first: Mississippi State hired a coach, not a color.

“We have never once mentioned in a press release that he is the first Black coach in the SEC,” said Mike Nemeth, the school’s associate director for media relations. People at the school said that Croom’s race had nothing to do with his hiring, where the respected longtime college and professional assistant coach was being asked to snatch up a sliding program and shake it into something people could be proud of again.

Attorney and friend, Rick Davis remembers it well. “The date was December 2, 2003. I was practicing law in West Palm Beach and had flown from my firm’s offices to Starkville, Mississippi for a press conference where Sylvester Croom was being introduced as the head football coach at Mississippi State University. Sly is a close friend.

“We both graduated from high school in 1971 and signed football scholarships to play for Coach Bryant at Alabama. We roomed across the hall from each other during our freshman year and we were elected co-captains following our senior season in 1974.

“I wasn’t attending the press conference just as a friend and former teammate: Sylvester was our client. History was being made that day in Starkville — until December 2, 2003, no Southeastern Conference football program had named an African-American as its head coach. Mississippi State President Dr. Charles Lee, Athletics Director Larry Templeton, and other leaders at Mississippi State changed all of that. Here’s how it happened.

“In mid-October 2003 Mississippi State head football coach Jackie Sherrill released a statement that he would be retiring at the end of the 2003 football season. Sherrill’s action was prompted by an NCAA investigation for violations of recruiting rules by boosters and members of the Bulldogs football staff. Just seven months earlier Sly and Mike Shula had been finalists to be the head football coach at the University of Alabama. Alabama made the decision to hire Shula, and Sly, while disappointed, continued to coach the running backs with the Green Bay Packers.

“After Sherrill’s announcement in October, I called Sylvester and asked if he would be interested in the position in Starkville. He wasn’t sure, but we agreed that it wouldn’t hurt to reach out to Mississippi State to see what their thoughts were and learn more about their situation. I didn’t know Bulldogs’ Athletics Director Larry Templeton but I called a friend of Sly’s and mine who knew Templeton well and asked if he would call Larry. He said he would and ten minutes later our friend called back and said he had talked with Templeton and Templeton wanted me to call him.

“I called and during that first conversation in October Larry said he and Dr. Lee had followed the coaching search at Alabama and had been impressed with Sylvester. Templeton said Mississippi State would have to go through the process but they had done their due diligence and Sly was who they wanted to hire. A month and a half later Sylvester Croom was the head football coach at Mississippi State.

“Sly inherited a football program that had suffered through three straight losing seasons (total of 8 wins) and was going on NCAA probation. His first task was to clean things up and to do it the right way was going to take time. In 2007 (his fourth year as head coach in Starkville) the Bulldogs won 8 games, including the Liberty Bowl, and Sly was named the SEC Coach of the Year. The win total dropped to 4 in 2008, but with a new athletics director in place, Sly was forced out.

“Working with and assisting a coach as he and his family make career decisions has always been an exciting part of what I do but Sylvester and Jeri Croom’s move to Mississippi State stands out from all of the rest. My personal relationship with Sly and Jeri coupled with the historical significance of the hire made it very special! As Sly said in Starkville on December 2, 2003, ‘with interaction and communication, the walls can come tumbling down.’ That happened in Starkville — and it opened the door for Joker Phillips at Kentucky, Kevin Sumlin at Texas A&M and James Franklin and Derek Mason at Vanderbilt.”

As he was settling into his position at Mississippi State, Croom sat down to speak with Rick Bragg in a spacious office with still-bare shelves. He first swore that maroon and white, not black and white, were the colors of this football team, the only colors that concerned him. But something odd happens the more you let people talk, the more you ask them who they are, where they are from, what they remember about life before integration — or, if they’re very young, what they were told about that time – and it became clear, as a Mississippi writer once said, that the past is not dead there, nor even past. The then 49-year-old coach drifted back in his mind to the people who bled and died in a struggle he remembered mostly through the eyes of a child and teenage boy — people who absorbed genuine hatred, who changed his society and made it possible for him to play his way onto the Alabama football team in 1971, the second year that Paul (Bear) Bryant allowed Black players on his squad. And he began to cry.

His father, in the late 1940s, feared being lynched. Croom himself attended a newly integrated junior high school where students refused to talk to him or even look at him, where a spit-wad spattered on his face the first day of classes.

More than 50 years have passed since the first Black scholarship athlete took the field in the SEC. And a lifetime, it seems, has passed since Sylvester Croom kicked a field goal over the clothesline in his yard in Tuscaloosa and dreamed about being swept up into glory on the Crimson Tide. But even as he entered high school, the only players wearing Alabama jerseys were white.  “No way I should be sitting here,” he said once from his MSU office, his mind hung up — for just a moment — on that clothesline.

Then, that quickly, he was standing before a team of SEC athletes–his boys–in the Mississippi State field house. In 2003, he was one of only five Black head football coaches in Division I-A, five out of 117. His players sat straight and tense, and you got the feeling that if he told them to jump off a roof, they would balk only long enough to write notes to their mamas.

Croom knew how hard it is to keep believing when the things you want seem so far away. He was uncomfortable being a symbol. But there was no denying it, really.

Somewhere, in a backyard in Alabama or Mississippi, a boy is kicking field goals over the clothesline and throwing touchdown passes to himself, lobbing the ball so high that he can be quarterback and receiver all in one.

“He needs to know,” Croom said, “that things do change.”

If you work in athletics and have questions about contracts or would like advice on career moves, please contact Rick at rdavis@wallacejordan.com.

By Robert L. Loftin

There are many options with estate planning, and people often ask about living trusts as an alternative to a will in order to avoid probate, avoid broad tax and creditor liability, high expense, or family feuding. (We’ll talk about avoiding probate another time.)

A living trust (some “high brow lawyers” like to call them inter vivos trusts) is created during your lifetime. You designate a trustee (often yourself, a spouse, partner, or trusted friend) with responsibility and fiduciary duty for managing the assets for your benefit; and upon your death later, for the benefit of your heirs or others (“beneficiaries”.) Because a living trust is designed while you are alive, it allows for the easy transfer of assets to beneficiaries in the manner outlined in the trust document, bypassing the process of probate.

There are two types of living trusts: revocable and irrevocable. There is also a testamentary trust option, but we will discuss that in a future article.

Revocable Trusts

A revocable trust can be changed or completely canceled by you during your lifetime. Income earned during your lifetime is distributed to you, and only after your death does the remainder of the trust property transfer to the beneficiaries. It’s important to recognize the benefits and disadvantages for this trust.

  Benefits of Revocable Trusts

• A revocable trust provides flexibility and income to you.
• You retain control over the trust and can change its provisions at any time.
• If you have health concerns, the person you choose to be the trustee can manage your assets.
• If you own real estate in a state other than the state you claim as your residence, and transfer the property to the trust, can can avoid additional probate in another state (that’s called “ancillary probate”)

  Disadvantages of Revocable Trusts

• These trusts have higher upfront and ongoing costs. For example, any real estate to be put into the trust must be retitled to indicate that the trust is the owner. The same is true of any property such as cars and boats. (Some “trust mill” lawyers recommend putting everything you own into a living trust, including your clothes. I don’t recommend going to that extreme.)
• Annual accountings are typically required, which increases the cost.
• While the trust can be changed at any time, there are costs associated with this, including potential tax liabilities if assets are removed from the trust.
• Creditors can still reach the assets in a revocable trust during your lifetime.

Irrevocable Trusts

With an irrevocable trust, you transfer ownership of your assets into the trust, so legally you no longer own them. Once you create an irrevocable trust, you typically cannot change its terms or terminate it without the permission of your named beneficiaries.

    Benefits of an Irrevocable Trust

• If you wish, you can form the trust in a way that relieves you of the tax liability on the income generated by assets in the trust.
• High-risk professionals, such as doctors, use irrevocable trusts as an asset-protection strategy to protect their assets from creditors and from legal judgments. (Not all states allow this, so you would have to form the trust in a state that does.)
• Property transferred to an irrevocable trust often can avoid or minimize estate taxes.
• Irrevocable trusts can be established to take care for a special needs child.

  Disadvantages of an Irrevocable Trust

• While your assets can be well protected, you lose future control over them.
• Irrevocable trusts are difficult to modify once created.

Summary

Understanding the differences and limitations between revocable and irrevocable living trusts are important in planning for your estate. Don’t wait — consult with a legal professional today to discuss the options that work best for you and your family.

Need an attorney to help you plan your estate? Contact Wallace Jordan today.

By Richard T. Davis

Some years ago, I was visiting with a retired coach who had been the head football coach at a major athletic program in the south. We were talking about the highs and lows of his career, as well as things he would do differently if he had it to do over. He mentioned that he’d never had an attorney review his employment agreements, maybe because he knew I was an attorney and represented coaches.

“I just didn’t think it was necessary,” he said with a laugh. “I just always thought the university and my friends around the program would take care of me and do the right thing.”

After he was fired, the coach realized that wasn’t the case. The coach told me that looking back, he had made a big mistake not having an attorney familiar with coaches’ contracts review his employment agreement; even if he wasn’t able to get the university to revise the agreement, he would have at least understood what obligations the university had toward him should they terminate his employment.

The university, in the coach’s mind, did not “take care of him” and “do the right thing,” and he quickly found out those “friends” around the program were more interested in developing a relationship with the new head coach than in helping him. Unfortunately, this isn’t the first time I’ve had a coach tell me a story similar to this. So, with that in mind let’s go over some things related to your employment agreement I think you should consider (whether you’re a head coach, assistant coach or administrator).

How the Off-Set Clause Can Affect Employment Agreements

Samuel Jackson is well known for his “WHAT’S IN YOUR WALLET?” Capital One credit card commercials, and when looking at specific provisions that are common in coaches’ employment agreements, attorneys will play off that and ask, “WHAT’S IN YOUR CONTRACT?”

Employment agreements can be terminated “with cause” (neglect of duties, violation of NCAA or conference rules, etc.) or “without cause” (primarily not winning enough games), and the main difference between the two is the employer doesn’t owe the coach anything when he is terminated “with cause.” But what happens in the event a coach is terminated “without cause?”

The language in the agreement dealing with termination “without cause” will vary from contract to contract, but a common provision which could come into play is the off-set clause. Here’s an example:

If the employment agreement is terminated “without cause” prior to its expiration, Employer shall be obligated to continue to pay Coach all monies due for the remaining term of the agreement. Coach shall have a duty to mitigate his contractual damages by seeking other employment and Employer’s obligation to Coach shall be reduced by any income earned by Coach between the date of termination and the end of the term of this agreement.

Note — some agreements say that if Coach takes any job (no matter how much it pays) Employer does not owe Coach anything for the remaining term of the agreement.

An Offset Clause Case Study

Let’s look at an example of how the reduction or off-set plays out in the real world.

• You’re the head coach at State U, and you have a five-year contract paying you a total of $500,000 a year (and your contract includes the above-referenced “off-set” provision).

• At the end of the second year of the contract, State U hires a new athletics director, and the new AD decides to make a coaching change and terminates your contract “without cause.” When that happens, State U still owes you $500,000 for the three years left on your contract.

• Two weeks after you leave State U, you get a call from East College to be the offensive coordinator, and they sign you to a three-year contract paying $300,000 a year.

With the above-referenced “off-set” provision in your contract, State U gets to reduce what it owes you ($500,000/year) by what East College is paying you ($300,000/year) — so instead of having to pay you $500,000 a year for the next three years ($1,500,000), State U only owes you $200,000 a year for the next three years ($600,000). That’s a difference of $900,000!

Obviously, State U wants the “off-set” provision in your contract (or even better, the provision that says if you take another job, they don’t owe you anything), and more than likely, the term sheet or the initial draft of your employment agreement will have one of those provisions in it.

However, like anything else in a term sheet or contract, these are items you can attempt to get your employer to change. Will they? It depends – how much leverage do you have, how hard are you willing to push, or how badly do you want the job.

A real-world example is Ellis Johnson, who was a client several years ago when he was named head coach at Southern Miss. We knew the contract of the previous head coach at Southern Miss contained an “off-set” provision, and from the very beginning we told Southern Miss we would not agree to any “off-set” in relation to termination “without cause.” Southern Miss agreed to remove that provision from Coach Johnson’s contract.

Unfortunately, Ellis was terminated “without cause” after his first year. While we were disappointed with the decision made by Southern Miss, Ellis was hired as the defensive coordinator at another program at a salary higher than what Southern Miss was paying him. Without the “off-set” provision, Southern Miss remained obligated to pay Coach Johnson the total amount owed for the final three years of his Southern Miss contract ($700,000 x 3 years = $2,100,000).

Contract Agreement Best Practices

Often, only head coaches will be able to get the “off-set” provision taken out of their contract, but I have seen situations when an assistant coach (coordinator) was able to have it removed as well. As I said earlier, it all depends on how much leverage you have, how hard are you willing to push, and how badly you want the job.

This is why getting an attorney involved at the beginning is important, preferably one who is familiar with coaches’ or administrators’ employment agreements. All doctors aren’t surgeons, and all attorneys aren’t experienced with sports-related employment agreements.

Ask for a letter of understanding up front. Many times, the employment agreement (all 15-20 pages of it) may not make it to your desk until several months after you’ve started. Which is where a letter of understanding comes in: a 1-2 page document listing the “basic” terms of your employment agreement (duties, salary, bonuses, years, and termination provisions including “for cause” and “without cause”).

If you work in athletics and have questions about employment contracts, please contact me at rdavis@wallacejordan.com.

By William  A. Ratliff

Have you ever been involved in a mediation that ended before it started? I have. I don’t mean literally, but I do mean one that never gets past the first round of demand and offer.

In one sense, conducting a mediation is like flying a plane: It’s not going anywhere if you can’t get it off the ground; and that means getting the case into the rhythm of exchanging offers.

As simple as that may sound, lawyers often make it difficult — and never find the rhythm.

I routinely conduct mediations in which the initial offer or demand is made is at the mediation. This is not uncommon in straightforward (IE: car accident) cases, and it rarely presents a problem. However, in larger and more serious cases, I’ve seen competing attorneys expend a lot time, energy and negative emotion trying to get into a rhythm where the parties can have a meaningful negotiation session.

I’ve found this kind of negativity often occurs when the defendant or plaintiff only hears a demand, or offer, for the first time, at the mediation. When that happens, a mediation may never get off the ground.

A well-respected lawyer once told me that his office will not agree to mediate a case without first making a demand and receiving an offer — which, in his experience, typically sets the stage for a productive session. Though this doesn’t ensure success, it does ensure awareness going into the process.

I’m guessing every experienced litigator has participated in one or more mediations that failed because of high demands (or low offers) being withheld until the first day of mediation.

I will concede that, by making an advance demand or offer, you run a risk of discouraging the other party from participating in mediation. At the same time, I would contend that, if this occurs, maybe your case isn’t ready for mediation in the first place. And wouldn’t you rather know that before you waste a day finding out?

Another decision that often impacts a negotiation process finding its rhythm is when lawyers back up from, or renege on, offers or demands made prior to mediation. I’m not necessarily suggesting that this tactic is improper, but I will say it’s one that never sits well with the opposition.

And yes, I understand that offers and demands change based on the posture of a case, and that no one has a right to assume an offer or demand will remain open indefinitely. However, I have found that, when one intends to withdraw a prior offer or demand, an explanation ahead of time is helpful — and often necessary. Otherwise, it will not be received well.

Before your next mediation, ask yourself “Is this case ready to mediate? Have I done everything needed to give the other side an opportunity to adequately assess the risk?” If the answer is no, you may want to save yourself (and your client) the money, time and energy — and explore the option of mediation at a later date.

Enjoy the journey.

Need an experienced mediator or mediation advice for your situation? Contact William A. Ratliff or one of the other attorneys in our Arbitration and Mediation practice group today.  

By William  A. Ratliff

“You’ve got to know when to hold em, know when to fold em.” –Kenny Rogers

For most people, risk is a four-letter word. It’s something lawyers deal with every day. You’re paid to minimize, evaluate, and know when risk is worth taking. When you draft a contract, your client expects you to anticipate issues before they arise, and provide for the contingencies in the contract. The goal, of course, being to eliminate or minimize the risk of bad results. If you’re a litigator, your clients expect you to know and advise them on the risk of prosecuting or defending claims.

If you’d asked me “What is the main motivating factor for parties in a mediation?” before I began mediating cases, I might have answered “money.” Maximum money for plaintiffs, minimum money for defendants. Money is certainly a component of motivation, and a measurement of an outcome’s success or failure. But in my experience, the number one motivating factor in mediation is minimizing risk of loss.

A plaintiff’s attorney typically takes cases on a contingent fee basis — investing money in expenses, costs and time — with the expectation of a payoff, and a return on his/her investment through the recovery. A defendant, on the other hand, invests in attorneys’ fees and expenses, in hopes of minimizing what s/he might otherwise pay to resolve a case.

While money is ultimately the fuel that runs the litigation engine, it’s the risk of losing money that drives the desire to settle.

I always tell parties in mediation that my job, as a neutral third party, is to help identify and discuss the risks — and thereby enable parties to make the best decision regarding whether or not to accept a settlement.

Lawyers carry a heavy burden (one that certainly used to keep me up at night), serving as “risk advisers.” The right advice can lead your client to a wise decision, and the incorrect advice can result in serious loss (either Opportunity or Actual loss). Therein lies the beauty of mediation. When attorneys do their jobs well, in assessing both risk and their client’s ability to take risks, it’s reflected in the negotiating process. Most of the time, both parties eliminate risk through a negotiated settlement.

I have a lot of respect for the lawyers I’ve served as a mediator. Most of them enter mediations having done the hard work needed to advise their clients wisely — and when this happens, the process usually results in a settlement.

When settlements cannot be achieved, the attorneys and their clients have made the decision that the risk of a good (or bad) result is worth taking. Either way, the process has worked. It’s helped show them that they’re BATNA (Best Alternative To Negotiated Agreement) is to “Hold em, not fold em.”

Enjoy the journey.

If you have any questions about how this or other related mandates may affect you or your business, please contact one of our attorneys at Wallace Jordan.

By William Stewart & Tom McKnight

“There are multitudes of businesses, but few professions.” So declared the Alabama Civil Court of Appeals in a decision from 1980.

Generally speaking, professionals are exempt from the acceptable restraints of non-compete agreements as governed by Alabama’s restrictive covenant law. Yet who counts as a professional in the state?

The restrictive covenant law was significantly amended in 2016 to codify years of case law that interpreted what once was a broad, loosely defined and rather ambiguous statute. The statutory scheme is based on a legal presumption that an employer has a “protectable interest” in governing how and whether a former employee can work for competing businesses or perform work of the same character. Alabama Code § 8-1-191 lists protectable interests such as trade secrets, confidential information, existing customer relationships, good will “and specialized and unique training involving substantial business expenditure specifically directed” toward the former employee.

However, Alabama Code § 8-1-196 reads: “Nothing in this article shall be construed to eliminate any professional exemption recognized by Alabama law.” That begs the question: What professional exemptions are actually recognized by the courts in Alabama? How exactly is this determined?

The amended statute does not enumerate any specific professional categories for the exemption, therefore defining a professional exemption is one major gray area remaining five years after the recent restrictive covenant statutory revisions.

Who are some of the “professionals” the Alabama courts have recognized to date?

Alabama courts have found the following occupations to be “professionals”:

• Ear, nose and throat specialists, (See Oddess v. Taylor, 211 So.2d 805 (Ala. 1968)
• Ophthalmologists, (See Salisbury v. Semple, 565 So.2d 234 (Ala. 1990))
• Attorneys, (See Pierce v. Hand, Arendall, Bedsole, Greaves & Johnston, 678 So.2d 765 (Ala. 1996))
• Veterinarians, (See Friddle v. Raymond, 575 So.2d 1038 (Ala. 1991))
• Accountants, (See Cherry, Bekaert & Holland v. Brown, 582 So.2d 502 (Ala. 1991)
• Physical therapists, Benchmark Medical Holdings, Inc. v. Barnes, 328 F.Supp.2d 1236 (2004)

How do the courts analyze whether an occupation should be deemed a “profession?”

A recent Alabama court case discusses in depth the modern “professional exemption.” In Benchmark, the Federal District Court, applying Alabama law, considered whether physical therapists should be found to be professionals.

An earlier case cited by the Benchmark Court, the Friddle ruling on veterinarians, set forth three prongs for distinguishing a professional from a non-professional:

1. Professional training, skill and experience required to perform certain services
2. The delicate nature of the services offered
3. The ability of the employee and need to make instantaneous decisions

Additional case law cited in Benchmark points to client relationships dependent on “personal confidence,” something that separates a “client” from a “customer.”

Drawing from precedent, the Benchmark Court did indeed declare that physical therapists qualified as professionals who claim an exemption from non-compete agreements. The Court also reasoned that physical therapists must be registered and licensed within the state in order to practice legally. To attain licensure, physical therapists are also subject to written examination, and to maintain licensure, physical therapists must satisfy continuing education requirements.

Much like attorneys and doctors, the Benchmark court noted that physical therapists also face discipline for any demonstrated incompetence, gross negligence, unethical or criminal behavior, and other potential offenses.

Finally, the Court pointed out that physical therapists make independent judgments and determine the course of care based on their evaluations of their patients’ condition.

These factors guided the Benchmark in ruling that physical therapists are to be considered professionals.

Are there protectable interests other than non-competition agreements that can still be enforceable against a professional?

The Benchmark Court also ruled there can be a boundary to how freely a professional may practice after termination of employment if a business interest of the employer outweighs the public interest of the physical therapist in treating and rehabilitating patients in need.

The Court included investment in a competing physical therapy practice and business consulting on behalf of other physical therapy practices of examples of activities that could still be restricted if the therapist does not treat patients at those facilities.

What occupations should be deemed professions?

Our firm takes no position on which occupations not yet deemed professionals by the courts should be declared professionals using the three-prong test from Benchmark.

It is important to note, however, that as the Benchmark case suggests, licensure in a particular discipline alone is likely not enough to demonstrate whether one may be a “professional” in the eyes of the law. The other two prongs matter as well.

We can also point to instances where the court has ruled that a particular job category or occupation could not be deemed a “profession” under the law. These include:

• Exterminators (See Dobbins v. Getz Exterminators of Ala, Inc., 382 So.2d 1135 (1980))
• Seasonal tax preparation specialists at H&R Block and similar businesses (as determined in a federal summary judgment decision from 2006).
• Securities brokers (See L.S. Associates Inc. v. Rogers, Ala. Civ. App. Lexis 87 (2014))

It must be noted the court’s decision in Rogers regarding securities brokers, the most recent decision we cite in this article, hinged on a lack of sufficient evidence presented by the plaintiff. The Alabama Civil Court of Appeals affirmed that it is the plaintiff who carries the evidentiary burden of proving he or she should be seen as a professional under the law. This is something to remember if you are in a similar situation and must fight for or against a “professional exemption” from a non-compete provision.

If one believes that a particular occupation should or should not be covered under the “professional exemption” exception for the purposes of nullifying a non-compete agreement, seek the advice of an attorney.

Alabama Rules of Professional Conduct require that the following language accompany any communication concerning a lawyer’s services: “No representation is made that the quality of the legal services to be performed is greater than the quality of legal services to be performed by other lawyers.”

Need advice on a non-compete provision of an employment agreement? Contact a Wallace Jordan attorney today. William Stewart and Tom McKnight can assist you on these matters.

By Matthew S. Hale

Who loves paying taxes?  Not you? We don’t either.

Yet President Joe Biden has proposed a top federal tax rate of 39.6 percent on long-term capital gains and qualified dividends. Factor in average state taxes and a 3.8 percent federal surtax, and the wealthiest Americans could face a tax bill as high as 49 percent in 2022.

This potential change in policy, assuming a successful passage through Congress, would affect owners of commercial real estate with long term capital gains that they expect to realize in the next few years. Much like other classes of investors, real estate owners desire the highest possible return on investment, and a part of that return includes how much Uncle Sam requires in his tax bill.

As a result, many real estate owners are looking to sell as much of their holdings as is practical by the end of 2021. Often, selling and reconfiguring portfolios is done on a biannual or more infrequent basis. Yet some of these companies that completed such a cycle in 2020 are choosing not to wait the extra year.

If you or your company are considering such a selloff, you must plan strategically before you ever close on—or even market—your buildings with the goal to close by New Year’s Eve in case that capital-gains tax hit blasts its way into 2022. Here are two leasing considerations to be keenly aware of as you prepare for a sale.

1. Revisiting and shoring up all existing leases

You need to ensure that everything aligns with the expectations of your prospective buyer. That said, you may not want to push a sale if a building’s largest or most important tenant has few years remaining on its lease term. If possible, you will be better off selling after you have renegotiated and extended the term.

How this goes depends on the nature of a building you intend to sell. For instance:

• Is it space in a retail “shadow center” location like a strip mall? Generally, if that space rests next to a Walmart, a Kroger, or another big-box retail operation, the return will be higher, and thus the stakes will be higher, too. Retail leases are typically short and might run five to seven years. As we all know, retail was significantly hampered by Covid, but well-placed centers can still bring a good return.
• Or is the space in or around a medical center? Leases with medical tenants tend to be longer (sometimes 12 to 15 years), more secure, and have higher values as a result.

2. Focus on what you can pay upfront in lease negotiations with your tenants

You should focus acutely on your buildings’ net operating income (NOI) and how it is listed or presented when you get ready to approach the market with a sales listing. Simply stated, NOI is just the amount of cash flow the building provides after the expenses are paid. It is also how the sales price of a commercial building is typically calculated.

Tenants, in a quick-turnaround context like a this one, where they know you want to sell portfolio assets by the end of the year, will likely require some kind of tangible benefit to them before they will renegotiate their terms.

In the course of these negotiations, you will likely face a decision on whether to offer an abatement of monthly rent for a specified period of time during the extended term or provide an improvement allowance in cash once the new lease is executed. Expect a tenant to put both of these asks on the table. You will push back against one or the other.

Remember, then, that a rent abatement will reduce your NOI during the period in which the abatement is granted, but offering the tenant improvement allowance will not affect your NOI. Thus, you may increase your return on investment by providing the upfront allowance rather than weighing down your NOI with rent abatements.

Here is a concrete example: If you grant a three-month rent abatement in the new lease terms at $10,000 per month, you will lose $30,000 in NOI from your balance sheet. However, if you pay the tenant a lump sum of $30,000 toward an allowance as essentially an “extension bonus,” it helps to better define the sale assets. 

If you decide to sell some of your holdings, it may seem like five months is a long time between now and the end of the year. When you factor in all you must address to properly set up a sale, that cushion will evaporate quickly.

So now is the time to accelerate your planning and due diligence if yours has yet to begin in earnest. For the considerations mentioned here and others, draw on a network of professionals to guide the process ably. Consult with all accountants, attorneys, appraisers, brokers, managers and other would-be teammates accordingly.

Alabama Rules of Professional Conduct require that the following language accompany any communication concerning a lawyer’s services: “No representation is made that the quality of the legal services to be performed is greater than the quality of legal services to be performed by other lawyers.” 

Considering a sale of commercial real estate assets? Contact our expert attorneys today.