“How to Prepare for the Initial Consultation with a Lawyer,” what a lawyer would tell you

Michael Avery, Esq., Fairfax, Virginia

Legal cases are distressing; there are no two views about it. But a good lawyer can make them a little less stressful. But, how do you find a good lawyer? While suggestions and reviews can help you shortlist a few lawyers, you cannot decide which one to hire without meeting them in person. Same goes for lawyers – they need to meet potential clients to find out if they can work with them.

This is what the initial consultation is for – to help both the client and the lawyer decide if they can work together. However, an initial consultation or the first meeting can be unproductive and a waste of time if you go for it unprepared. Attorney Michael Avery, provides his advice in a new article that is available on his blog, https://michaelaveryesq.law.blog

To help you make the most of time and reach a decision, here are a few things you should remember while going for a lawyer consultation:

* Ask If There Is a Consultation Fee
First things first, ask the lawyer if there is a fee for the meeting. Lawyers typically charge a per hour fee, so if there is a consultation fee, make sure to make the most of it. Ask all the necessary questions that can help you decide if you want to hire the lawyer or not. Do not waste time in discussing unnecessary or less important questions. If you don’t want to pay for the first meeting, look for free consultation lawyers. There are some lawyers who offer free-of-cost consultations.

* Make a List of Questions
No matter how intelligent you are or how sharp your memory is, this is not the time to show it. Always, write down all the questions on a paper or a notebook before going for the meeting to make sure you do not forget anything important.
While the questions may vary from case to case, here are some general questions to ask a lawyer in the first meeting:

* Does your case fall into the lawyer’s area of expertise?
* How many similar cases has the lawyer handled in the past?
* What options do you have – both legal and out-of-court?
* What problems are likely to occur in your case?
* How is the other side likely to respond? What is their plan of action likely to be?
* How likely is it that the case will get settled in your favor?
* How long will the case take to conclude?
* Is the lawyer going to personally handle the case? Or are they going to transfer it to a team member, colleague or junior?
* If any other lawyer is going to be involved in the case, ask if you can meet them before finalizing the contract.
* How will the lawyer charge for the case – on an hourly or per-meeting basis or is there a flat fee?
* Ask about the accepted modes of payments to avoid any problems later on.

Be Prepared for Lawyer’s Questions

Just like you have a lot of things to ask, lawyers also take all the important information in the first meeting to decide whether they want to take up the case or not. This includes your personal details, your narrative, and all the information you can provide about the case.

Take Relevant Documents

Lawyers do not just rely on verbal information, they need written documents and proof that can help them determine the strength of your case. So, make sure to carry all relevant documents to the initial lawyer consultation, no matter how insignificant they appear to you.  Sometimes, a small and seemingly insignificant piece of evidence can change the direction of the case.

Preparing for your first meeting with a lawyer is critical for your case, so don’t take it lightly. If you are well-prepared, the initial consultation will be enough for you to decide whether you want to work with a lawyer or not.

Michael L. Avery, Sr.

Michael Leon Avery, Sr., personal injury attorney in Fairfax, Virginia. Michael Avery has over 20 years of experience in advocating for clients who have been injured in a wide array of accidents—from car and truck accidents to bicycle crashes to accidents caused by drunk drivers.

He became a lawyer after a distinguished career in the U.S. Marine Corps. Former Captain Michael L. Avery, Sr. was born in Long Beach, California on January 5, 1959, but grew up in Natick Massachusetts. After graduating from Ohio Wesleyan University with a B.A. degree in History and Politics and Government, Michael Avery attended Officer Candidate School and was commissioned a Second Lieutenant on December 18, 1981. Upon completion of The Basic School, he was selected for assignment as an infantry officer and attended Infantry Officers Course in Quantico, Virginia. After graduation from IOC he was assigned to 2nd Battalion, 7th Marines at Camp Pendleton as a Rifle Platoon Commander in Golf Company. While assigned to Golf 2/7, Second Lieutenant Avery participated in Operation Colonel Potlatch in the Aleutian Islands as a Rifle Platoon Commander and Team Spirit as a Weapons Platoon Commander. During the battalion’s overseas deployment to Okinawa in 1983, then First Lieutenant Avery attended and successfully completed Naval Gunfire School in the Philippines. Following the 2/7’s overseas deployment, 1st Lt. Avery was assigned as the 81mm Platoon Commander for 2/7.
First Lieutenant Avery was augmented as a regular officer in August of 1983 and selected for assignment to recruiting duty at 12th Marine Corps District on Treasure Island, San Francisco, California. His initial duties were as a Contact Team Officer and serving as a “floating” Operations Officer for various Recruiting Stations including RS Portland and RS Seattle. Then First Lieutenant Avery was reassigned as the Executive Officer of Recruiting Station San Francisco where he completed his assignment on recruiting duty in August of 1987. Promoted to Captain, he was assigned to 3rd Landing Support Battalion in Okinawa Japan as the S-3A. At 3rd LSB he was detailed as augment S-4 for 35th MAU only five weeks prior to deployment for Exercise Balikatan. Working outside his MOS, he successfully completed the planning and coordination of combined ship and air embarkation and Combat Service Support plans for a MAU sized operation. Upon his return to 3rd LSB, he was reassigned to 9th Marines for Team Spirt as part of the regimental staff. Following Team Spirt, then Captain Avery served as the S-3 for 3rd LSB prior to his selection to attend Amphibious Warfare School. Upon his successful graduation from AWS, Captain Avery resigned his commission to attend law school at the American University Washington College of Law.

Michael L. Avery, Sr., Esq. is proud to have served as an Infantry Officer and a Captain in the United States Marine Corps. He lives by the motto: Semper Fidelis, or Semper Fi, which means “always faithful”. He believes deeply in the justice clients deserve and works hard to achieve it case after case.

Contact
Michael L. Avery, Sr., Esquire
The Avery Law Firm
10382 Democracy Lane
Fairfax, Virginia 22030
P: 703-462-5050 F: 703-462-5053
Website: https://semperfilawyer.com

Practice Areas

* Auto Crashes
* Vehicle Rollovers
* Motor Vehicle Fatal Injuries
* Commercial Vehicle Accidents
* Uninsured / Underinsured Motorist
* Claims
* Distracted Driver Accidents
* Road Rage
* Truck Accidents
* Hit-and-Run Accidents
* DUI Accidents
* Passenger Injuries
* Motorcycle Accidents
* Bicycle Accidents
* Pedestrian Accidents
* Slip and Fall
* Personal Injury

Experience
Since 1998, Michael Avery has been the principal attorney of The Avery Law Firm in Virginia. Previously, from 1981 to 1992, Mr. Avery served in the U.S. Marine Corps, and achieved the rank of Captain.

Education
Mr. Avery received his Juris Doctor (J.D.) from the American University, Washington College of Law, in Washington, DC in 1994. Prior to his law studies, he graduated from Ohio Wesleyan University with a B.A. in History & Politics in 1981.

References
Law Firm Website: https://averyassociateslaw.com/
Blog: https://michaelaveryesq.law.blog
News: https://attorneygazette.com/michael-avery%2C-virginia
Attorney Profile: https://solomonlawguild.com/michael-avery%2C-attorney
LinkedIn Profile: https://www.linkedin.com/in/michael-l-avery-sr-6b02012/
 News: https://hype.news/michael-avery-esq

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Washington Supreme Court replies to certified questions from federal appellate court that compliance with Hague Service Convention may require extension of time periods fixed by state law for effecting service of process upon German defendant

Michael Avery, Esq., Fairfax, Virginia

Gary Dean and Denise Broad (plaintiffs) filed a diversity personal injury case in a Washington federal court. Mr. Broad received his injury while demonstrating the Kingdome Mannesmann Facade Maintenance System made by Mannesmann Anlagenbau, A.G. of Germany.

Both Germany and the United States are parties to the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, Nov. 15, 1965, 20 U.S.T. 361, T.I.A.S. No. 6638 [1969] (the Hague Convention). The Hague Convention applies “where there is occasion to transmit a judicial or extrajudicial document for service abroad.” It requires that every party designate a Central Authority to receive and help to perfect local service of process issuing out of litigation taking place in another party.

While the Convention allows for several alternative service methods, Germany has objected to them and demands that foreign plaintiffs work through the appropriate German Central Authority. That Authority has to see to it that the complaint and summons get served “by a method prescribed by [Germany’s] internal law for the service of documents in domestic actions upon persons who are within its territory.” Art. 5(a). The Convention itself does not set time limits for service. Washington law, however, provides that service after the complaint is filed tolls any applicable limitations period for 90 days. Failure to effect service within that extended period makes the case untimely.

Mr. Broad’s injury took place on May 1994 and plaintiffs filed their complaint on May 16, 1997, the end of the limitations period. After having to remedy the fact that they had not translated the legal documents into German, plaintiffs authorized a German firm to translate the documents and to forward them to the proper Central Authority in Germany. The German firm notified plaintiffs on September 24, 1997 that the Central Authority had sent their papers to a local court for service upon defendant. The latter took place on September 18, 1997, 125 days after the filing of plaintiffs’ complaint.

For failing to accomplish service within 90 days, the district court gave defendant a summary judgment of dismissal for lack of timeliness. On appeal, the Ninth Circuit decided that the lower court had failed to take into account that the Convention required plaintiffs to surrender control over service to a Central Authority for an indefinite time period. The Circuit court then certified two questions to the Washington Supreme Court to obtain clarification of the operation of Washington law in a Convention context.

These questions were 1. “[W]hether state law deems a designated foreign central authority a ‘substitute’ or ‘agent’ for purposes of meeting Washington’s 90-day time period for service of process,” or; 2. “[A]lternatively, whether state law recognizes an exception to [or an extension of] the 90-day time limit for service of process where plaintiffs must, under the Hague Convention, relinquish control over serving a defendant to a foreign central authority for an indefinite period of time.” See Broad v. Mannesmann Anlagenbau, A.G., 196 F.3d 1075, 1076 (9th Cir.1999). The Washington Supreme Court answers first that the Central Authority is not an “agent” of the defendant for service purposes, and second that sending the complaint and summons to the Central Authority within 90 days of the filing of the state complaint should extend the 90-day period.

Sitting en banc, the Washington Court first points out that the Hague Convention preempts inconsistent state law where it applies. In a case like this, for example, it requires a plaintiff to send the suit papers to the designated Central Authority to be served on a German defendant. By its terms, the Central Authority cannot play the role of defendant’s agent, contrary to plaintiffs’ contention.

In addition, the Convention is not a “long-arm” provision independently authorizing service outside the U.S. On the contrary, in the Court’s view, it merely sets up various methods of serving process abroad, if and when a state or federal statute permits transnational service. Nor does the Convention purport to set up criteria for personal jurisdiction over a foreign defendant.

Plaintiffs analogized the situation here to cases where the law makes service upon a defendant’s agent complete, e.g., for limitations purposes. The Court is unconvinced. “The Hague Convention clearly contemplates, and explicitly states, that the central authority itself serves the defendant, not that the central authority itself may be served. … [It] does not provide that the central authority merely forward notice to the defendant, but instead provides that the central authority actually serve the defendant or arrange to have the defendant actually served.” [678-79]

Plaintiffs, however, fare better on their “tolling” argument. “Once the necessary documents are transmitted to the central authority, the timing of service is out of a plaintiff’s control. Service thus may be effected after a state statute of limitations runs. In Marschauser v. Travelers Indem. Co., 145 F.R.D. 605 (S.D.Fla.1992), for example, Israel’s central authority had not sent the required certificate indicating whether service had been made on one of the defendants nearly nine months after receiving the request for service abroad. Also, the French central authority took over six weeks to serve the defendants, as noted in the unpublished opinion of Greene v. Le Dorze, 1998 WL 158632 (N.D.Tex.1998). The Hague Convention stands as a positive rule of law which could prevent timely commencement of suit.” [683] In such situations, Washington precedent recognizes a need to extend the 90-day period.

The Court cautions that transnational service of a complaint and summons other than pursuant to the Convention or to its declarations and reservations would not have a “tolling” effect. Since plaintiffs’ English versions did not comply with German specifications, plaintiffs had to, and did, get the translated documents to the Central Authority within the full 90-day period.

Citation: (Certification in) Broad v. Mannesmann Anlagenbau, A.G., 141 Wash.2d 670, 10 P.3d 371 (2000).

Michael L. Avery, Sr.

Michael Leon Avery, Sr., personal injury attorney in Fairfax, Virginia. Michael Avery has over 20 years of experience in advocating for clients who have been injured in a wide array of accidents—from car and truck accidents to bicycle crashes to accidents caused by drunk drivers.

He became a lawyer after a distinguished career in the U.S. Marine Corps. Former Captain Michael L. Avery, Sr. was born in Long Beach, California on January 5, 1959, but grew up in Natick Massachusetts. After graduating from Ohio Wesleyan University with a B.A. degree in History and Politics and Government, Michael Avery attended Officer Candidate School and was commissioned a Second Lieutenant on December 18, 1981. Upon completion of The Basic School, he was selected for assignment as an infantry officer and attended Infantry Officers Course in Quantico, Virginia. After graduation from IOC he was assigned to 2nd Battalion, 7th Marines at Camp Pendleton as a Rifle Platoon Commander in Golf Company. While assigned to Golf 2/7, Second Lieutenant Avery participated in Operation Colonel Potlatch in the Aleutian Islands as a Rifle Platoon Commander and Team Spirit as a Weapons Platoon Commander. During the battalion’s overseas deployment to Okinawa in 1983, then First Lieutenant Avery attended and successfully completed Naval Gunfire School in the Philippines. Following the 2/7’s overseas deployment, 1st Lt. Avery was assigned as the 81mm Platoon Commander for 2/7.

First Lieutenant Avery was augmented as a regular officer in August of 1983 and selected for assignment to recruiting duty at 12th Marine Corps District on Treasure Island, San Francisco, California. His initial duties were as a Contact Team Officer and serving as a “floating” Operations Officer for various Recruiting Stations including RS Portland and RS Seattle. Then First Lieutenant Avery was reassigned as the Executive Officer of Recruiting Station San Francisco where he completed his assignment on recruiting duty in August of 1987. Promoted to Captain, he was assigned to 3rd Landing Support Battalion in Okinawa Japan as the S-3A. At 3rd LSB he was detailed as augment S-4 for 35th MAU only five weeks prior to deployment for Exercise Balikatan. Working outside his MOS, he successfully completed the planning and coordination of combined ship and air embarkation and Combat Service Support plans for a MAU sized operation. Upon his return to 3rd LSB, he was reassigned to 9th Marines for Team Spirt as part of the regimental staff. Following Team Spirt, then Captain Avery served as the S-3 for 3rd LSB prior to his selection to attend Amphibious Warfare School. Upon his successful graduation from AWS, Captain Avery resigned his commission to attend law school at the American University Washington College of Law.

Michael L. Avery, Sr., Esq. is proud to have served as an Infantry Officer and a Captain in the United States Marine Corps. He lives by the motto: Semper Fidelis, or Semper Fi, which means “always faithful”. He believes deeply in the justice clients deserve and works hard to achieve it case after case.

Contact

Michael L. Avery, Sr., Esquire

The Avery Law Firm

10382 Democracy Lane | Fairfax, Virginia 22030

P: 703-462-5050 F: 703-462-5053

Website: https://semperfilawyer.com

Practice Areas

* Auto Crashes

* Vehicle Rollovers

* Motor Vehicle Fatal Injuries

* Commercial Vehicle Accidents

* Uninsured / Underinsured Motorist

* Claims

* Distracted Driver Accidents

* Road Rage

* Truck Accidents

* Hit-and-Run Accidents

* DUI Accidents

* Passenger Injuries

* Motorcycle Accidents

* Bicycle Accidents

* Pedestrian Accidents

* Slip and Fall

* Personal Injury

Experience

Since 1998, Michael Avery has been the principal attorney of The Avery Law Firm in Virginia. Previously, from 1981 to 1992, Mr. Avery served in the U.S. Marine Corps, and achieved the rank of Captain.

Education

Mr. Avery received his Juris Doctor (J.D.) from the American University, Washington College of Law, in Washington, DC in 1994. Prior to his law studies, he graduated from Ohio Wesleyan University with a B.A. in History & Politics in 1981.

References

Law Firm Website: https://averyassociateslaw.com/

Blog: https://averyassociateslaw.com/blog/

Blog: https://michaelaveryesq.law.blog

News: https://attorneygazette.com/michael-avery%2C-virginia

News: https://hype.news/michael-avery-esq

Attorney Profile: https://solomonlawguild.com/michael-avery%2C-attorney

LinkedIn Profile: https://www.linkedin.com/in/michael-l-avery-sr-6b02012/

Experienced Personal Injury Law attorney Michael Avery comments on Shumate v. Mitchell, a recent Virginia Supreme Court decision

Michael Avery, Esq., Fairfax, Virginia

In a recent case, the Supreme Court of Virginia reviewed the modern criticism of the Dead Man’s statute and the expansive version adopted by the Virginia legislature.

Plaintiff Debra Shumate was involved in an automobile accident with William Earl Thompson. The lawsuit was originally against Thompson, but later substituted his estate as the defendant when Thompson passed away due to reasons not related to the accident.  Estate agreed that Thompson was at fault and conceded the issue of liability and went to trial over the issue of damages alone.  

Shumate described the accident as one with significant collision.  “The evidence presented at trial established that Shumate was stopped at a traffic light when she observed a sports car driven by Thompson moving toward the rear of her sedan. She applied the brake in anticipation of the collision and put her arm in front of her son, Joey, who was riding in the passenger seat. Joey described the impact as a ‘hard slam’ and said he saw Shumate go forward and hit her head.”  Shumate estimated the speed of the collision at somewhere between 25 to 35 miles per hour.
Thompson’s estate asserted that the collision was a low speed affair.  Thompson’s passenger estimated the speed at 5 to 6 miles per hour.  Thompson told his son that the speed was 5 to 7 miles per hour, a hearsay statement which was introduced pursuant to Dead Man’s statute.

Evidence also showed that Shumate had three automobile accidents prior to the most recent accident in 2011.  “In 1993, a vehicle struck her car at around fifty-five miles per hour, resulting in her losing consciousness and suffering arm, leg, and lower back pain. She was rear-ended in 2001, causing injuries to her neck, knee, and right ankle. And in 2007, she was a passenger in a vehicle that ran off the road causing ‘immediate pain in [her] neck and back.’”  Evidence showed that Shumate visited a pain clinic several months prior to the accident and also nine days after the accident on October 27, 2011, but “[n]otably, the physician’s notes from the October 27 appointment contain no reference to the October 18, 2011 collision.”

“Shumate underwent a third spine surgery in March 2012. The surgeon who performed that procedure testified that Shumate reported the same pain level before and after the 2011 collision at issue in this case and that this pain was the reason for the surgery. The surgeon also reported that Shumate had preexisting degenerative changes in her neck and spine not attributable to the 2011 collision.”  The estate’s expert also opined that while the emergency room visit was a reasonable precautionary measure, he was of the opinion that the surgery was unrelated to the 2011 accident.

Jury returned a verdict of zero dollars on damages and Shumate moved for set aside the jury verdict.  She argued that even the defense expert conceded that at least the emergency room visit made sense.  The motion was denied and Shumate eventually appealed and raised two assignments of error: (1) misapplication of the Dead Man’s statute allowing the deceased’s hearsay statements and (2) trial erred in refusing to set aside the jury verdict.

The Virginia Supreme Court navigated the long history of the Dead Man’s statute in Virginia and what led to the 1919 legislative adoption of the rule.  The Court also noted the modern criticism of the Dead Man’s statute and the expansive version adopted by the Virginia legislature, but noted that such is the province of the legislature and not the court.  Thus, Plaintiff’s argument “that unless [the Court] adopt[s] her interpretation of the statute, ‘the party asserting the Dead Man’s Rule could bring in a plethora of out of court, unreliable hearsay of what the decedent said to others to bolster unfairly the decedent’s case’—is actually an accurate statement of the statute.”  But still, the decedent’s description of the accident to his son was properly admitted.

The Court also rejected the second assignment of error.  With respect to the argument that at least the emergency room bill was a damage that should have been awarded, the Court explained that “[t]his contention misconstrues Leivy’s [defense expert’s] testimony. This statement did not contradict Leivy’s opinion that Shumate suffered no injury from the collision; instead, it simply acknowledged that it was not irrational for someone with Shumate’s medical history to visit the emergency room after any automobile accident to make sure she was not injured.”  Therefore, the judgment of the trial court was affirmed.

The case is Shumate v. Mitchell, Record No. 180012.

Michael L. Avery, Sr.

Michael Leon Avery, Sr., personal injury attorney in Fairfax, Virginia. Michael Avery has over 20 years of experience in advocating for clients who have been injured in a wide array of accidents—from car and truck accidents to bicycle crashes to accidents caused by drunk drivers.

He became a lawyer after a distinguished career in the U.S. Marine Corps. Former Captain Michael L. Avery, Sr. was born in Long Beach, California on January 5, 1959, but grew up in Natick Massachusetts. After graduating from Ohio Wesleyan University with a B.A. degree in History and Politics and Government, Michael Avery attended Officer Candidate School and was commissioned a Second Lieutenant on December 18, 1981. Upon completion of The Basic School, he was selected for assignment as an infantry officer and attended Infantry Officers Course in Quantico, Virginia. After graduation from IOC he was assigned to 2nd Battalion, 7th Marines at Camp Pendleton as a Rifle Platoon Commander in Golf Company. While assigned to Golf 2/7, Second Lieutenant Avery participated in Operation Colonel Potlatch in the Aleutian Islands as a Rifle Platoon Commander and Team Spirit as a Weapons Platoon Commander. During the battalion’s overseas deployment to Okinawa in 1983, then First Lieutenant Avery attended and successfully completed Naval Gunfire School in the Philippines. Following the 2/7’s overseas deployment, 1st Lt. Avery was assigned as the 81mm Platoon Commander for 2/7.
First Lieutenant Avery was augmented as a regular officer in August of 1983 and selected for assignment to recruiting duty at 12th Marine Corps District on Treasure Island, San Francisco, California. His initial duties were as a Contact Team Officer and serving as a “floating” Operations Officer for various Recruiting Stations including RS Portland and RS Seattle. Then First Lieutenant Avery was reassigned as the Executive Officer of Recruiting Station San Francisco where he completed his assignment on recruiting duty in August of 1987. Promoted to Captain, he was assigned to 3rd Landing Support Battalion in Okinawa Japan as the S-3A. At 3rd LSB he was detailed as augment S-4 for 35th MAU only five weeks prior to deployment for Exercise Balikatan. Working outside his MOS, he successfully completed the planning and coordination of combined ship and air embarkation and Combat Service Support plans for a MAU sized operation. Upon his return to 3rd LSB, he was reassigned to 9th Marines for Team Spirt as part of the regimental staff. Following Team Spirt, then Captain Avery served as the S-3 for 3rd LSB prior to his selection to attend Amphibious Warfare School. Upon his successful graduation from AWS, Captain Avery resigned his commission to attend law school at the American University Washington College of Law.

Michael L. Avery, Sr., Esq. is proud to have served as an Infantry Officer and a Captain in the United States Marine Corps. He lives by the motto: Semper Fidelis, or Semper Fi, which means “always faithful”. He believes deeply in the justice clients deserve and works hard to achieve it case after case.

Contact
Michael L. Avery, Sr., Esquire
The Avery Law Firm
10382 Democracy Lane
Fairfax, Virginia 22030
P: 703-462-5050 F: 703-462-5053
Website: https://semperfilawyer.com

Practice Areas

* Auto Crashes
* Vehicle Rollovers
* Motor Vehicle Fatal Injuries
* Commercial Vehicle Accidents
* Uninsured / Underinsured Motorist
* Claims
* Distracted Driver Accidents
* Road Rage
* Truck Accidents
* Hit-and-Run Accidents
* DUI Accidents
* Passenger Injuries
* Motorcycle Accidents
* Bicycle Accidents
* Pedestrian Accidents
* Slip and Fall
* Personal Injury

Experience
Since 1998, Michael Avery has been the principal attorney of The Avery Law Firm in Virginia. Previously, from 1981 to 1992, Mr. Avery served in the U.S. Marine Corps, and achieved the rank of Captain.

Education
Mr. Avery received his Juris Doctor (J.D.) from the American University, Washington College of Law, in Washington, DC in 1994. Prior to his law studies, he graduated from Ohio Wesleyan University with a B.A. in History & Politics in 1981.

References
Law Firm Website: https://averyassociateslaw.com/
Blog: https://michaelaveryesq.law.blog
News: https://attorneygazette.com/michael-avery%2C-virginia
Attorney Profile: https://solomonlawguild.com/michael-avery%2C-attorney
LinkedIn Profile: https://www.linkedin.com/in/michael-l-avery-sr-6b02012/
 News: https://hype.news/michael-avery-esq

In tort action brought by survivors of Indian citizen killed in waters of United Arab Emirates, Texas Supreme Court holds that its courts may entertain suit because Article 14(1) of International Covenant on Civil and Political Rights grants U.S. citizens equal treaty rights to bring such suits in India

Michael Avery, Attorney in Fairfax, Virginia

Alimuddin Sirajuddin Kazi, a citizen of India not residing in the United States, lost his life while employed on an oil rig in the coastal waters of the United Arab Emirates. His survivors (plaintiffs), all Indian citizens, brought a wrongful death action in the Texas state courts in 1993 relying on Section 71.031 of the Texas Civil Practice and Remedies Code.

This provision admits wrongful injury or death suits to the Texas courts, inter alia, if: “in the case of a citizen of a foreign country, the country has equal treaty rights with the United States on behalf of its citizens.”

[emphasis supplied]

Defendants include Dubai Petroleum Company, Inc., Conoco, Inc., Dresser Industries, Inc. d/b/a Dresser-Rand Co., Aeroquip Corporation, Solar Turbines Incorporated, and Energy Service International, LTD a/k/a ESI., Inc.

Concluding that U.S. citizens lack “equal treaty rights” in India, the trial court dismissed the case for lack of jurisdiction based on failure to comply with Section 71.031. The intermediate appellate court reversed, holding that the statute pertained to the statement of a substantive cause of action and was not jurisdictional. It also held that both India and the U.S. are parties to the International Covenant on Civil and Political Rights, 999 U.N.T.S. 171, 6 I.L.M. 368 (ICCPR) and it provides U.S. citizens equal treaty rights in India. On certiorari, the Texas Supreme Court affirms and remands.

The Court first notes that the legislative history of the statutory language and the case law throw little or no light on its intended meaning. The statute would ordinarily not assume that a treaty conferred specific substantive rights on U.S. citizens.

“Absent any other reasonable construction, the most plausible reading of the ‘equal  treaty rights’ provision is that the Legislature intended to condition a foreign citizen’s right to sue on personal injury or death claims on the r injured party’s country of citizenship and pursue a personal injury or death claim to the same extent that a citizen of that country could do so. As we noted earlier, ‘equal treaty rights’ does not mean that the foreign country must provide the same substantive rights, procedures, or remedies as Texas law. The provision simply means that the foreign country’s law must, based on a treaty, afford United States citizens access to its courts to pursue any remedies available to its own citizens for personal injury or wrongful death.” [80]

Since U.S. courts tend to interpret treaties broadly, an applicable treaty need only imply equal court access such as by providing for general due process protections or by otherwise indicating that the other nation’s courts would be open to U.S. plaintiffs. The presence of appropriate language in a Convention to which both India and the U.S. belong raises a rebuttable presumption in support of plaintiffs’ case. Defendants can destroy the presumption by producing evidence that U.S. citizens do not in fact have equal access to Indian courts under its laws. Plaintiffs retain the overall burden, however, of persuading the court that such equal access is available to U.S. plaintiffs.

Under the restraints placed on the states by Zschernig v. Miller, 389 U.S. 429 (1968), this Court cannot engage in minute inquiries into the actual administration of a foreign nation’s legal system or into the credibility of foreign diplomatic statements. It has to limit its statutory inquiry to whether the law of the foreign state on its face or in theory grants U.S. citizens equal treaty rights.

Although plaintiffs cited eight different treaties to the Court, they relied mainly on Article 14(1) of the ICCPR. It provides that: “[a]ll persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law….”

In the Court’s view, this language suggests that United States citizens will be able to pursue any remedies available in India’s courts, including those for personal injury and wrongful death. Defendants countered by pointing to the U.S. Senate’s Declaration in consenting to the President’s ratification that the first twenty-seven articles of the ICCPR were not “self-executing.” If this is binding, Article 14(1) would arguably not confer judicially enforceable rights on Indian citizens in the U.S. legal system. The Court sidesteps this issue, however.

“Under our construction of the ‘equal treaty rights’ requirement, the only issue is whether–based on a treaty–Indian law allows United States citizens to pursue claims for personal injury or death to the same extent that it allows Indian citizens to pursue these claims. Because our focus is on the rights of United States citizens in Indian courts, we need not consider whether or not the Covenant grants rights to Indian citizens in the courts of this country.” [82]

The bottom line is that plaintiffs have triggered a presumption that Indian law does grant equal rights to U.S. plaintiffs. This is enough to require a remand to the trial court where the parties can, pursuant to Tex. R. Evid. 203, fully litigate the issues of what Indian law actually provides. Methods of proof might include, for example, expert testimony or affidavits, treatises, authoritative statutes, regulations and so forth. [Compare Fed. R. Civ. P. 44.1 dealing with proof of foreign law in U.S. federal courts. See generally J. Schmertz, A Modern Procedural Framework for Establishing the Law of a  Foreign Country, 28 Practical Lawyer 63 (1982).]

Citation: Dubai Petroleum Company v. Kazi, 43 Tex. Sup. Ct. J. 412, 12 S.W.3d 71 (2000).

Michael L. Avery, Sr.

Michael Leon Avery, Sr., personal injury attorney in Fairfax, Virginia. Michael Avery has over 20 years of experience in advocating for clients who have been injured in a wide array of accidents—from car and truck accidents to bicycle crashes to accidents caused by drunk drivers.

He became a lawyer after a distinguished career in the U.S. Marine Corps. Former Captain Michael L. Avery, Sr. was born in Long Beach, California on January 5, 1959, but grew up in Natick Massachusetts. After graduating from Ohio Wesleyan University with a B.A. degree in History and Politics and Government, Michael Avery attended Officer Candidate School and was commissioned a Second Lieutenant on December 18, 1981. Upon completion of The Basic School, he was selected for assignment as an infantry officer and attended Infantry Officers Course in Quantico, Virginia. After graduation from IOC he was assigned to 2nd Battalion, 7th Marines at Camp Pendleton as a Rifle Platoon Commander in Golf Company. While assigned to Golf 2/7, Second Lieutenant Avery participated in Operation Colonel Potlatch in the Aleutian Islands as a Rifle Platoon Commander and Team Spirit as a Weapons Platoon Commander. During the battalion’s overseas deployment to Okinawa in 1983, then First Lieutenant Avery attended and successfully completed Naval Gunfire School in the Philippines. Following the 2/7’s overseas deployment, 1st Lt. Avery was assigned as the 81mm Platoon Commander for 2/7.

First Lieutenant Avery was augmented as a regular officer in August of 1983 and selected for assignment to recruiting duty at 12th Marine Corps District on Treasure Island, San Francisco, California. His initial duties were as a Contact Team Officer and serving as a “floating” Operations Officer for various Recruiting Stations including RS Portland and RS Seattle. Then First Lieutenant Avery was reassigned as the Executive Officer of Recruiting Station San Francisco where he completed his assignment on recruiting duty in August of 1987. Promoted to Captain, he was assigned to 3rd Landing Support Battalion in Okinawa Japan as the S-3A. At 3rd LSB he was detailed as augment S-4 for 35th MAU only five weeks prior to deployment for Exercise Balikatan. Working outside his MOS, he successfully completed the planning and coordination of combined ship and air embarkation and Combat Service Support plans for a MAU sized operation. Upon his return to 3rd LSB, he was reassigned to 9th Marines for Team Spirt as part of the regimental staff. Following Team Spirt, then Captain Avery served as the S-3 for 3rd LSB prior to his selection to attend Amphibious Warfare School. Upon his successful graduation from AWS, Captain Avery resigned his commission to attend law school at the American University Washington College of Law.

Michael L. Avery, Sr., Esq. is proud to have served as an Infantry Officer and a Captain in the United States Marine Corps. He lives by the motto: Semper Fidelis, or Semper Fi, which means “always faithful”. He believes deeply in the justice clients deserve and works hard to achieve it case after case.

Contact

Michael L. Avery, Sr., Esquire

The Avery Law Firm

10382 Democracy Lane | Fairfax, Virginia 22030

P: 703-462-5050 F: 703-462-5053

Website: https://semperfilawyer.com

Practice Areas

* Auto Crashes

* Vehicle Rollovers

* Motor Vehicle Fatal Injuries

* Commercial Vehicle Accidents

* Uninsured / Underinsured Motorist

* Claims

* Distracted Driver Accidents

* Road Rage

* Truck Accidents

* Hit-and-Run Accidents

* DUI Accidents

* Passenger Injuries

* Motorcycle Accidents

* Bicycle Accidents

* Pedestrian Accidents

* Slip and Fall

* Personal Injury

Experience

Since 1998, Michael Avery has been the principal attorney of The Avery Law Firm in Virginia. Previously, from 1981 to 1992, Mr. Avery served in the U.S. Marine Corps, and achieved the rank of Captain.

Education

Mr. Avery received his Juris Doctor (J.D.) from the American University, Washington College of Law, in Washington, DC in 1994. Prior to his law studies, he graduated from Ohio Wesleyan University with a B.A. in History & Politics in 1981.

References

Law Firm Website: https://averyassociateslaw.com/

Blog: https://averyassociateslaw.com/blog/

Blog: https://michaelaveryesq.law.blog

News: https://attorneygazette.com/michael-avery%2C-virginia

News: https://hype.news/michael-avery-esq

Attorney Profile: https://solomonlawguild.com/michael-avery%2C-attorney

LinkedIn Profile: https://www.linkedin.com/in/michael-l-avery-sr-6b02012/

In personal injury case at sea, Eleventh Circuit affirms a motion to compel arbitration based on the New York Convention, so long as the agreement concerns subject matter capable of settlement by arbitration

Michael L Avery Sr, lawyer

Plaintiff Harold Leonel Pineda Lindo, a citizen and resident of Nicaragua, began employment with NCL Ltd., a Bermudan corporation with its principal place of business in Miami, Florida. In December 2008, Lindo claims that he injured his back while on board one of NCL’s vessels while acting within the scope of his employment, later requiring surgery for his personal injury. Lindo’s employment contract with NCL was governed by a collective bargaining agreement. The contract also states that all personal injury and Jones Act claims would be resolved by binding arbitration pursuant to the United Nations Convention on Recognition and Enforcement of Foreign Arbitral Awards. The contract stated that the place of arbitration would be the place of the employee’s citizenship, unless arbitration is unavailable under the Convention in that country, in which case it shall take place in Nassau, Bahamas. The choice of law would be that of the flag state of the vessel (Bahamas).

Lindo challenged having arbitration, arguing that the claim would arise under Bahamian negligence law, not the Jones Act. Lindo then filed a lawsuit in Florida state court. NCL moved to compel arbitration and removal to federal court. Lindo amended his complaint to allege a single count of Jones Act negligence. The district court granted NCL’s motion to compel arbitration and dismissed Lindo’s amended complaint. Lindo appealed.

The United States Court of Appeals for the Eleventh Circuit affirmed the district court’s order to compel arbitration of Lindo’s Jones Act negligence claim. The Court began by evaluating the New York Convention. This Convention recognizes written arbitration agreements concerning subject matter capable of settlement by arbitration. Both Nicaragua and the Bahamas are signatories to the Convention. Both parties agree that the Convention applies to Lindo’s contract.

After reviewing the Convention and Supreme Court and circuit court precedent, the Court concludes that the district court properly enforced Lindo’s arbitration agreement and rules that the Jones Act claims must be arbitrated in a foreign forum (Nicaragua) under Bahamian law. The Court notes that there is a strong presumption in favor of freely negotiated contractual choice of law and forum selection provisions. The presumption applies greatly with regard to international commerce. “Indeed, the Convention provides that contracting states ‘shall recognize’ written agreements wherein parties agree to submit any and all disputes to settlement by arbitration. New York Convention, art. II(1). This Circuit has stated, in agreement with other circuits, that ‘a court conducts a very limited inquiry’ when ‘deciding a motion to compel arbitration under the Convention Act.’ Bautista v. Star Cruises, 396 F.3d 1294 (11th Cir. 2005) (quotation marks omitted).” 652 F.3d 1275.

Next, the Court evaluates whether a null‑and‑void defense would apply to the arbitration agreement, thereby making it inoperable. “In Bautista, this Court held that an arbitration agreement is null and void under Article II(3) of the Convention only where it is obtained through those limited situations, ‘such as fraud, mistake, duress, and waiver,’ constituting ‘standard breach‑of‑contract defenses’ that ‘can be applied neutrally on an international scale.’ 396 F.3d at 1302 (quotation marks omitted). Lindo’s Contract incorporates a union‑negotiated CBA, and there is no claim—much less any showing—of fraud, mistake, duress, or waiver. To the extent Lindo relies on Article II, his claim fails.” 652 F.3d 1276.

“Lindo argued that the arbitration provision is unconscionable, maintaining that he signed the Contract on a “take‑it‑or‑leave‑the‑ship” basis. However, this was the same argument asserted by the plaintiff seamen in Bautista. . . . This Court expressly rejected that argument, concluding that an unconscionability defense was not available under Article II of the Convention.” 652 F.3d 1276.

Another defense to arbitration enforcement is one based the public policy of the United States under Article V of the Convention. The Court states that this defense does not apply because Article V only applies at the arbitral award‑enforcement stage, not at the arbitration‑enforcement stage at issue here. “Article V expressly provides, ‘Recognition and enforcement of an arbitral award may also be refused if the competent authority in the country where recognition and enforcement is sought finds that … [t]he recognition or enforcement of the award would be contrary to the public policy of that country.’ New York Convention, art. V(2) (emphasis added). Yet, Article V has no application in the interlocutory procedural posture of this case, where NCL seeks to enforce arbitration at the outset of the dispute.” 652 F.3d 1280.

Lastly, the Court denies Lindo’s arguments against the enforcement of the arbitration agreement, stating that “Lindo’s challenge to his arbitration agreement fails because (1) Bahamian law itself recognizes negligence actions; and (2) even if, as Lindo claims, U.S. law under the Jones Act has a more relaxed causation standard for negligence claims than Bahamian law, these were precisely the same arguments lodged (and rejected [by this Court]) in [Lipcon v. Underwriters at Lloyd’s, London, 148 F.3d 1285 (11th Cir.1998)].” 652 F.3d 1283.

In Lipcon, the Court held “that the choice‑of‑law and forum‑selection clauses were enforceable and ordered the matter to be heard in English courts under English law, since we will declare unenforceable choice clauses only when the remedies available in the chosen forum are so inadequate that enforcement would be fundamentally unfair.” 652 F.3d 1283 (internal citation omitted).

“In Lindo’s case, the arbitration clause, if anything, is fundamentally fair for several reasons. For starters, the clause is part of a union‑negotiated collective bargaining agreement. The fact that the Jones Act claim was expressly referenced in that CBA is clear indication that this type of claim was expressly considered during the negotiation process. Lindo cannot obtain the advantages of his union‑negotiated Contract, while rejecting what he now perceives as its disadvantages. This union‑negotiated agreement is enforceable and valid even if it waives Lindo’s U.S. statutory claim under the Jones Act.” 652 F.3d 1284.

“Lastly, Lindo’s position would effectively eviscerate the mutually binding nature of the Convention. Lindo maintains that his arbitration agreement is void as against public policy because he cannot assert his U.S. statutory rights under Bahamian law. By this logic, courts in other nations could likewise refuse to recognize valid, mutually agreed‑upon arbitration provisions if they contemplated the application of American law, in derogation of home‑based statutory remedies. Yet if every country refused to recognize arbitration agreements that contemplate the application of foreign law, the multilateral commitment of the Convention would be defeated.” 652 F.3d 1284.

Citation: Lindo v. NCL (Bahamas), 652 F.3d 1257 (11th Cir. 2011).

Michael L. Avery, Sr.

Michael Leon Avery, Sr., personal injury attorney in Fairfax, Virginia. Michael Avery has over 20 years of experience in advocating for clients who have been injured in a wide array of accidents—from car and truck accidents to bicycle crashes to accidents caused by drunk drivers.

He became a lawyer after a distinguished career in the U.S. Marine Corps. Former Captain Michael L. Avery, Sr. was born in Long Beach, California on January 5, 1959, but grew up in Natick Massachusetts. After graduating from Ohio Wesleyan University with a B.A. degree in History and Politics and Government, Michael Avery attended Officer Candidate School and was commissioned a Second Lieutenant on December 18, 1981. Upon completion of The Basic School, he was selected for assignment as an infantry officer and attended Infantry Officers Course in Quantico, Virginia. After graduation from IOC he was assigned to 2nd Battalion, 7th Marines at Camp Pendleton as a Rifle Platoon Commander in Golf Company. While assigned to Golf 2/7, Second Lieutenant Avery participated in Operation Colonel Potlatch in the Aleutian Islands as a Rifle Platoon Commander and Team Spirit as a Weapons Platoon Commander. During the battalion’s overseas deployment to Okinawa in 1983, then First Lieutenant Avery attended and successfully completed Naval Gunfire School in the Philippines. Following the 2/7’s overseas deployment, 1st Lt. Avery was assigned as the 81mm Platoon Commander for 2/7.

First Lieutenant Avery was augmented as a regular officer in August of 1983 and selected for assignment to recruiting duty at 12th Marine Corps District on Treasure Island, San Francisco, California. His initial duties were as a Contact Team Officer and serving as a “floating” Operations Officer for various Recruiting Stations including RS Portland and RS Seattle. Then First Lieutenant Avery was reassigned as the Executive Officer of Recruiting Station San Francisco where he completed his assignment on recruiting duty in August of 1987. Promoted to Captain, he was assigned to 3rd Landing Support Battalion in Okinawa Japan as the S-3A. At 3rd LSB he was detailed as augment S-4 for 35th MAU only five weeks prior to deployment for Exercise Balikatan. Working outside his MOS, he successfully completed the planning and coordination of combined ship and air embarkation and Combat Service Support plans for a MAU sized operation. Upon his return to 3rd LSB, he was reassigned to 9th Marines for Team Spirt as part of the regimental staff. Following Team Spirt, then Captain Avery served as the S-3 for 3rd LSB prior to his selection to attend Amphibious Warfare School. Upon his successful graduation from AWS, Captain Avery resigned his commission to attend law school at the American University Washington College of Law.

Michael L. Avery, Sr., Esq. is proud to have served as an Infantry Officer and a Captain in the United States Marine Corps. He lives by the motto: Semper Fidelis, or Semper Fi, which means “always faithful”. He believes deeply in the justice clients deserve and works hard to achieve it case after case.

Contact

Michael L. Avery, Sr., Esquire

The Avery Law Firm

10382 Democracy Lane | Fairfax, Virginia 22030

P: 703-462-5050 F: 703-462-5053

Website: https://semperfilawyer.com

Practice Areas

 * Auto Crashes

* Vehicle Rollovers

* Motor Vehicle Fatal Injuries

* Commercial Vehicle Accidents

* Uninsured / Underinsured Motorist

* Claims

* Distracted Driver Accidents

* Road Rage

* Truck Accidents

* Hit-and-Run Accidents

* DUI Accidents

* Passenger Injuries

* Motorcycle Accidents

* Bicycle Accidents

* Pedestrian Accidents

* Slip and Fall

* Personal Injury

Experience

Since 1998, Michael Avery has been the principal attorney of The Avery Law Firm in Virginia. Previously, from 1981 to 1992, Mr. Avery served in the U.S. Marine Corps, and achieved the rank of Captain.

Education

Mr. Avery received his Juris Doctor (J.D.) from the American University, Washington College of Law, in Washington, DC in 1994. Prior to his law studies, he graduated from Ohio Wesleyan University with a B.A. in History & Politics in 1981.

References

Law Firm Website: https://averyassociateslaw.com/

Blog: https://averyassociateslaw.com/blog/

Blog: https://michaelaveryesq.law.blog

News: https://attorneygazette.com/michael-avery%2C-virginia

News: https://hype.news/michael-avery-esq

Attorney Profile: https://solomonlawguild.com/michael-avery%2C-attorney

LinkedIn Profile: https://www.linkedin.com/in/michael-l-avery-sr-6b02012/