Latest / Ask the Lawyer / 09/04/2025 Ask the Lawyer with Harvey Peyton

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09/04/2025 Ask the Lawyer with Harvey Peyton · Ask the Lawyer

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Speaker 3: Our courts oh created equal.
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Speaker 4: When Lass come here in a caton ray can rocks up, cops.
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Speaker 2: On and a very happy good morning too. You can
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Speaker 2: put the power pathon on your side this morning. Give
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Speaker 2: us a call. Harvey Payton is here this morning from
0:54
Speaker 2: the Paton Law Firm. You and call us this morning
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Speaker 2: at three Z are a four three four five fifty
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Speaker 2: eight fifty eight. Threes are A four three four five
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Speaker 2: fifty eight fifty eight and also text over any questions
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Speaker 2: you have the three zero four nine three five fives
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Speaker 2: zero zero eighth Peyton Law from one Line, Peyton Law
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Speaker 2: from dot Com, Peyton Law from dot comm and Natrol
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Speaker 2: West Virginia get you more details as the show goes
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Speaker 2: along here today, Harvey, good morning, I do this morning.
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Speaker 3: Yeah, I couldn't be better. I had trouble driving in
1:13
Speaker 3: today because who can remember how to drive in the
1:17
Speaker 3: rain while right, so long since we've had sustained rainfall,
1:21
Speaker 3: but really cheery morning. I hit the power ball right. Oh,
1:26
Speaker 3: two bucks got out of my ten easy picks. One
1:30
Speaker 3: of them was the power ball. So there's two dollars
1:33
Speaker 3: coming back. But I could feel like a winner today.
1:35
Speaker 3: Did anybody win? I didn't check.
1:37
Speaker 2: No, Still, nobody.
1:39
Speaker 3: Wanted almost two billion dollars, but we did win. Saturday,
1:43
Speaker 3: Tom and I went up to see the debut of
1:46
Speaker 3: the Rich Rodriguez second year okay, yeah, and not disappointed.
1:50
Speaker 3: They were rough in the first half. It turned the
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Speaker 3: ball over three times, essentially four because Jaheim White fumbled
1:56
Speaker 3: a pitch way deep. And you know, it's an upscale offense.
2:01
Speaker 3: It's a defense built around some speed. We'll see what
2:03
Speaker 3: happens over at Athens, Ohio. We're going over for that
2:07
Speaker 3: as well. It's close, you know, oh yeah, absolutely, And
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Speaker 3: I've never really been downtown in Athens. Were driven by
2:12
Speaker 3: it a lot. That's usually the way. Well, my sister
2:14
Speaker 3: in law, my wife's sister lives in Pickerington, Ohio. It
2:18
Speaker 3: has for years, so that's on the east side of towns.
2:22
Speaker 3: They always go up thirty three and seven to thirty three.
2:27
Speaker 3: And that's kind of the way I come back from
2:29
Speaker 3: the airport in Columbus when I fly, because I just
2:32
Speaker 3: don't like to drive through Columbus traffic. It's horrendous. But
2:36
Speaker 3: just you know, you ride by and you look over there,
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Speaker 3: to your right or to your left, pending on which
2:40
Speaker 3: direction you're headed, and oh, that's a pleasant looking place.
2:44
Speaker 3: That's the oldest educational institution in Ohio, perhaps other than
2:49
Speaker 3: Marietta College. It was founded by the same New Englanders
2:54
Speaker 3: who came to what was then the Connecticut Western Reserve
2:58
Speaker 3: of Ohio and founded Marietta and then big emphasis on
3:03
Speaker 3: public education. It's got an excellent Ohio university to me,
3:08
Speaker 3: has an excellent academic reputation, and in the arts they
3:11
Speaker 3: have a really good art department. There's got named Harold
3:14
Speaker 3: Edwards who is quite popular around here. He was over
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Speaker 3: at High University as a faculty member for a while.
3:19
Speaker 3: So we'll see what happens with Saturday. Robert Morris, my
3:23
Speaker 3: pick was thirty eight to ten Okay, it went out
3:27
Speaker 3: forty five to three, so I was a touchdown off
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Speaker 3: either way. I've got this Saturday picked as a win.
3:33
Speaker 3: But twenty four to fourteen, the Mountaineers in a dogfight
3:35
Speaker 3: to the fourth quarter. Hopefully you know OHI University won
3:42
Speaker 3: the big one of the bet American Conference last year.
3:46
Speaker 3: He could score points. Think they got score points. They've
3:48
Speaker 3: got a good mobile quarterback, so we're going to see
3:50
Speaker 3: the Mountaineers will have their hands fall. But one would
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Speaker 3: think that with twenty summer returning star returning players who
3:58
Speaker 3: had a pretty good level of talent, and seventy seven transfers,
4:02
Speaker 3: you can find enough in there to put thirty three
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Speaker 3: players on the field offense and defense that should be competitive.
4:09
Speaker 3: It's hard to win on the road, so I would
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Speaker 3: not be stunned by a loss. I think it would
4:13
Speaker 3: certainly hurt the program and set it back a bit.
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Speaker 3: But we'll know by it's a four o'clock kick, so
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Speaker 3: we'll know by about seven thirty eight o'clock Saturday night
4:21
Speaker 3: what what future may hold, because they won't wait till
4:25
Speaker 3: the next week for the pitt Panthers.
4:29
Speaker 2: I was listening to.
4:32
Speaker 3: Talklither you guys, the State News on the way in.
4:37
Speaker 2: Not not a whole lot. August.
4:38
Speaker 3: The biggest issue here in Charleston. We have the merger
4:42
Speaker 3: of the teachers unions. We have, you know, an ongoing
4:48
Speaker 3: discussion about Public Employees Insurance Agency PEIA and what proposed
4:52
Speaker 3: cost increases will mean to public servants. It's kind of
4:59
Speaker 3: a top it's a bit close to my heart. I mean,
5:02
Speaker 3: I've never been a teacher. I mean teachers in the family,
5:06
Speaker 3: but you know, having practice law for over fifty years,
5:10
Speaker 3: I've dealt a lot with public servants, with teachers, school administrators,
5:16
Speaker 3: elected officials in the courthouse, the state House, and folks
5:19
Speaker 3: that work for them. Just this morning, I was early.
5:21
Speaker 3: I needed to pick something up at the Kanaw County Courthouse,
5:24
Speaker 3: so I went in early, really open till eight. Gentlemen
5:28
Speaker 3: saw me sitting there in the halls and hey, you
5:30
Speaker 3: want to get in a little bit early, went in,
5:32
Speaker 3: showed me the department to go to. Guys put down
5:36
Speaker 3: their coffee, helped me get what I needed and left.
5:38
Speaker 3: You know, that's valuable. And they they enjoyed their jobs,
5:41
Speaker 3: they do them well, and I just fear that in
5:44
Speaker 3: the tight job market we've gone you know, PIA employee
5:50
Speaker 3: insurance coverage becomes significantly more expensive. We're going to see,
5:55
Speaker 3: you know, more bleeding of teachers, teachers, aids, bus drivers,
6:02
Speaker 3: folks who work at the courthouse. I'm not sure canawk
6:04
Speaker 3: out is covered by PI. They may have opted for
6:08
Speaker 3: a different insurance program. The city of Charleston has a thin,
6:10
Speaker 3: a self funded program. But for all those who are
6:13
Speaker 3: covered by PIA and living near the edge, you know,
6:17
Speaker 3: you get a pay raise of fifty dollars a month.
6:19
Speaker 3: But if you're insurance preming up seventy dollars a month
6:23
Speaker 3: and inflation holds true at about four percent, well you're
6:26
Speaker 3: just running in the hole. So we'll see how that
6:29
Speaker 3: sorts out. But in the face of all that, what
6:33
Speaker 3: could be calamitous news. The feature story is that Danny
6:37
Speaker 3: Jones barbecue stand is going to bring you open. But
6:39
Speaker 3: kind of on a spile about face. When I saw
6:41
Speaker 3: that announcement last week, uh, you know, I left the
6:47
Speaker 3: station here what they hung around in town, went over
6:49
Speaker 3: to Danny's to eat lunch, just because I like him,
6:51
Speaker 3: and you know he's kind of the he's now become.
6:54
Speaker 3: I guess this fellow from Beckley bought the place right. Well,
6:56
Speaker 3: and Danny ends I think the building or he owns
6:58
Speaker 3: the certainly ends the.
7:01
Speaker 2: Uh.
7:02
Speaker 3: But it was apparent from the from the announcement that
7:05
Speaker 3: Danny would be uh present to talk to customers. So
7:11
Speaker 3: now in his notage, which is a year younger than mine,
7:15
Speaker 3: he can be the Willie Mays of barbecue stands. Remember
7:17
Speaker 3: when Willie Mays soon got there to.
7:18
Speaker 2: Be in Greeen. He's like a brand ambassador, you know,
7:20
Speaker 2: he's like a brand ambassador. He'll he'll be around and
7:23
Speaker 2: uh and uh and sharing and it'll be it'll be
7:26
Speaker 2: a fun time. Of course. Uh. We did a whole
7:29
Speaker 2: entire show over there when he closed down, you know,
7:31
Speaker 2: celebrating Danny and his restaurant and things along those lines.
7:35
Speaker 2: So now you know that show that was uh you
7:36
Speaker 2: know in the archives is sort of like the Who
7:38
Speaker 2: Going on a Farewell Tour. It's another one. It's like,
7:42
Speaker 2: I'm glad to see Danny Bucket's.
7:43
Speaker 3: Because it's like the Rolling Stones, the last ride, Well,
7:46
Speaker 3: when is going to be the last ride? I don't know.
7:48
Speaker 3: Now it's over on Courier Street, right almost Caddy Corey
7:51
Speaker 3: with your Dinner, which is a you know, another place
7:53
Speaker 3: that's opened up one of the Riggs family, uh a
7:58
Speaker 3: fellow that runs it Riggs. His grandfather, Tom Riggs, was
8:02
Speaker 3: a really good friend of mine in the law. But
8:04
Speaker 3: Tom's a bit older than me. But when I first
8:07
Speaker 3: started working sort of around the law business in Charleston
8:10
Speaker 3: about nineteen seventy, the lawyer I was working with assigned
8:15
Speaker 3: me to do some work in the record room for
8:16
Speaker 3: some rights away a utility project up Elk River. And
8:21
Speaker 3: you know, I ran into this gentleman in the record room.
8:24
Speaker 3: He helped me find the books and it was Tom
8:26
Speaker 3: Riggs and just the nicest guy in the world. And
8:29
Speaker 3: of course Tom's got I think his two boys, Marty
8:32
Speaker 3: and I don't know the other boys name they have.
8:33
Speaker 3: They owned most of these, a lot of these Class
8:36
Speaker 3: B office space buildings downtown. And that's one of their
8:39
Speaker 3: sons who has the Courier Diner. Another place worth a try. Yeah,
8:43
Speaker 3: you don't have a lot of trouble parking. They have
8:45
Speaker 3: good parking because the street parking is excellent. Try and
8:49
Speaker 3: encourage folks who are downtown if you want to stop
8:51
Speaker 3: and anybody try the Quarier Diner. It's an all ole
8:55
Speaker 3: time Charleston institution and across the street. You've got sort
8:58
Speaker 3: of an old time Canac County institution and let's see
9:01
Speaker 3: Delegate Sheriff and Mayor Jones.
9:03
Speaker 2: That's right. It's actually a nice little duo of there
9:06
Speaker 2: on that corner. I give a Qurier Diner a lot
9:08
Speaker 2: of credit. They opened up, reopened up that place, and
9:10
Speaker 2: I think found a nice balance between having you know,
9:13
Speaker 2: food that you don't find everywhere, but not something that's
9:15
Speaker 2: so outrageous that the cost is crazy. They have pretty
9:17
Speaker 2: decent costs and it's a decent I mean, I really
9:20
Speaker 2: like it there.
9:20
Speaker 3: And cost control is so essential to restaurants. Now you
9:22
Speaker 3: see that McDonald's is cutting prices across the board and they.
9:25
Speaker 2: Got a little overit talking about over their skis. They
9:27
Speaker 2: you know, COVID allowed everybody to get a little crazy
9:30
Speaker 2: with their pricing, and you know some places are starting
9:32
Speaker 2: to say, okay, well, you know, we made a good
9:35
Speaker 2: pen and penny for a while.
9:36
Speaker 3: And now this morning, I think I believe it was
9:39
Speaker 3: the McDonald's boarded directors voted to withdraw from the National
9:43
Speaker 3: Restaurant Association. Is that right, Yeah, apparently there's a dispute
9:47
Speaker 3: the Nastal Restaurant Association. Most of the major members report
9:52
Speaker 3: earned tips. They actually w two those. If they had
9:56
Speaker 3: tips that come in on credit cards, they can account for. McDonald's.
10:02
Speaker 3: For whatever reason, seems to be opposed to that, because
10:05
Speaker 3: there's not a whole lot of tipping that goes on
10:07
Speaker 3: to McDonald's except always try to leave like a dollar
10:09
Speaker 3: on the counter if somebody takes your order, because you
10:12
Speaker 3: bust your own tables. And sometimes I think Ronald A.
10:14
Speaker 3: McDonald a lot to pay me for being.
10:16
Speaker 2: A bus boy.
10:18
Speaker 3: But that's the national scene. Yeah, there's a case working
10:23
Speaker 3: up to the Supreme Court now, I think from a
10:27
Speaker 3: Fifth Circuit, which is a fairly conservative circuit. A Fifth
10:30
Speaker 3: Circuit ruling last week with regard to the imposition of tariffs.
10:36
Speaker 3: It's a really really interesting case to me. I've read
10:40
Speaker 3: a bit about it. You know, under the United States Constitution,
10:43
Speaker 3: the poirate, a tax is reserved to the legislative branch.
10:47
Speaker 3: And regardless of what you call tariff, it's a tax.
10:50
Speaker 3: It's paid by somebody. It's a tax on importers. It's
10:53
Speaker 3: not a tax on the foreign manufacturer or producer. Whoever
10:58
Speaker 3: brings the product into the cun tree pays the tariff
11:03
Speaker 3: at the border before it enters the United States, and
11:06
Speaker 3: no question, it generates a lot of money, but it
11:10
Speaker 3: also has other effects, which is why, as with all
11:14
Speaker 3: other forms of taxation, it should be debated and considered
11:17
Speaker 3: by Congress. There are certain exceptions national emergency other enumerated
11:23
Speaker 3: exceptions in the law that give a chief executive the
11:27
Speaker 3: right to impose tariffs on a restricted basis for I
11:30
Speaker 3: think a maximum period of forty five days without congressional oversight.
11:35
Speaker 3: So the question becomes, well, does that mean you can
11:37
Speaker 3: impose sweeping tariffs on every country in the world based
11:41
Speaker 3: upon a perception of a trade in balance. That's just
11:44
Speaker 3: what we're going to have to sort out. It's going
11:46
Speaker 3: to have to be decided one way or the other.
11:48
Speaker 3: Congress has been a bit flaccid in responding in my estimation,
11:55
Speaker 3: and you can see unfortunately. You know, India, which is
12:00
Speaker 3: the second largest democracy in the world as far as
12:03
Speaker 3: population is concerned, probably the largest as far as population
12:08
Speaker 3: is concerned, but one of the oldest, a fifty percent
12:12
Speaker 3: tariff on all of their products coming to the United
12:16
Speaker 3: States because of their policy relative to Russian oil has
12:19
Speaker 3: driven They're the Prime Minister of India, mister Moody to Beijing,
12:24
Speaker 3: which is where he spent last week's troublesome But we'll
12:27
Speaker 3: see what the Supreme Court has to say about this.
12:29
Speaker 3: It's a really to me, it's more interesting than the
12:33
Speaker 3: other issues, a lot of which are policy and anything
12:36
Speaker 3: about well, can you dispatch federal troops and National guardsmen
12:41
Speaker 3: to the District of Columbia. One of the answer is yes,
12:44
Speaker 3: the District of Columbia. There is no Washington, there's no
12:46
Speaker 3: city of Washington. Washington City was dissolved in the late
12:51
Speaker 3: eighteen hundreds and it's just the District of Columbia. It's
12:55
Speaker 3: ruled by essentially Congress, although the home rule locked allows
12:58
Speaker 3: you to they have a mayor ousehol But yeah, I
13:01
Speaker 3: mean that there's no question that there's authority to invoke
13:07
Speaker 3: federal jurisdiction in the District of Columbia. It's not like
13:10
Speaker 3: a separate sovereign state. And in fact, the mayor says
13:16
Speaker 3: thanks for the help. That's not you know, you can
13:21
Speaker 3: challenge that all you want on the string port, but
13:23
Speaker 3: you know, it is the National Guard, it is the
13:25
Speaker 3: President of the United States, and there is some difference
13:28
Speaker 3: to be given to a chief executive when he makes
13:31
Speaker 3: a determination of some need, some emergency, I don't think
13:35
Speaker 3: to litigate them all in times of his exegent circumstance.
13:38
Speaker 3: Whether those circumstances exist, well, that may be, indeed a
13:42
Speaker 3: political question for the voters to decide, as opposed to
13:46
Speaker 3: the courts. But the tariff iss you, I mean, I'm
13:50
Speaker 3: sure that the business community is watching that carefully because
13:53
Speaker 3: it is costing. You know, multinational corporations and solid American
14:00
Speaker 3: companies like John Deere is losing six hundred million dollars
14:04
Speaker 3: over tariffs on metal. So we'll see how that shakes out. Locally,
14:09
Speaker 3: there is a sad and tragic criminal trial going on
14:12
Speaker 3: in Judge Aker's court. I believe a fifteen year old
14:17
Speaker 3: young man is being tried for murder a murder robbery.
14:23
Speaker 3: He's being tried as a as an accomplice, which means
14:29
Speaker 3: he's just as guilty of the crime as the primary actor.
14:31
Speaker 3: He didn't shoot the gun. It's alleged the young man
14:35
Speaker 3: who's now on trial was a lookout. He stood lookout
14:37
Speaker 3: while the robbery was taking place, and as a part
14:41
Speaker 3: of that felony robbery, the store clerk was killed. That's
14:46
Speaker 3: felony murders first degree murder regardless of premeditation. It just
14:50
Speaker 3: his first degree murder by statute and the commission of
14:53
Speaker 3: a robbery. The perpetrator, the shooter, has pleaded guilty awaits sentencing.
15:03
Speaker 3: It may have been since sorry life to life imprisonment
15:06
Speaker 3: with the possibility of parol after fifteen years with mercy,
15:09
Speaker 3: which is the maximum that the young man who's on
15:12
Speaker 3: trial can face. The Supreme Court of the United States
15:15
Speaker 3: declared over a decade ago that the sentencing of a
15:21
Speaker 3: juvenile tender year certainly less than sixteen years of age
15:25
Speaker 3: to life in prison without any possibility of parole, amounted
15:29
Speaker 3: to cruel inhuman cruel unusual punishment. Fifth Amendment man on that.
15:36
Speaker 3: So that's the maximum we can determine. We'll see what happens.
15:42
Speaker 3: In order to be an aid or and a better
15:46
Speaker 3: the state has to prove beyond a reasonable doubt that
15:48
Speaker 3: the person on the outside was there with the intent
15:52
Speaker 3: and for the purpose of helping the actor in the
15:56
Speaker 3: first degree, who actually committed the act. How do you
16:00
Speaker 3: approve intent? It's something that's in a person's mind. It's circumstance.
16:05
Speaker 3: There'll be I'm sure some video footage of the store
16:09
Speaker 3: security footage. However, the person acted, whatever their conduct was,
16:14
Speaker 3: and the jury will look at that and determined, well,
16:18
Speaker 3: is there enough here that we can conclude beyond reasonable
16:21
Speaker 3: doubt that these circumstances exclude every possibility reasonably consistent with
16:27
Speaker 3: innocence and by the man guilty.
16:29
Speaker 2: In this case, it doesn't matter if he knew his
16:33
Speaker 2: that the other young man, like if he thought, Hey,
16:37
Speaker 2: don't worry, I'm not going to shoot a guy no
16:38
Speaker 2: matter what, We're just going to go and get the
16:39
Speaker 2: money or whatever it might be. Even if the allected
16:43
Speaker 2: lookout fought that, that doesn't really play like if he
16:46
Speaker 2: was there for a robbery, then he was there.
16:47
Speaker 3: For robbery because there you know, when you look at
16:50
Speaker 3: the murder statutes in West Virginia, there are enumerated offenses robbery, kidnapping,
16:58
Speaker 3: sexual assault, arson, murder by lying in wait, murder by
17:02
Speaker 3: poison that our first degree murder in and of themselves. Period.
17:06
Speaker 3: So a murder committed during the commission of a felony
17:08
Speaker 3: a robbery is first degree murder. Uh, it doesn't make
17:12
Speaker 3: any difference if the accomplice, it doesn't make any difference
17:16
Speaker 3: really what the intent was that the person that's shot.
17:19
Speaker 3: Maybe he had no Maybe he fired a gun accidentally,
17:23
Speaker 3: maybe he meant to shoot in a different direction to
17:25
Speaker 3: scare the victim. Maybe, But the fact is a person's
17:28
Speaker 3: dead in the commission of a felony, and that's first
17:30
Speaker 3: degree murder, and that certainly transfers to the person who's outside.
17:35
Speaker 3: If you're if you are an aider and a better
17:37
Speaker 3: you're just as guilty as the person who whose active
17:40
Speaker 3: conduct you are aiding in a betting. The only thing,
17:45
Speaker 3: the only matter, that question of intent is, is that
17:46
Speaker 3: why you intended to be there. Did you intend to
17:49
Speaker 3: be there to aid in the commission of a robbery.
17:51
Speaker 3: If you did, and there's a killing in the commission
17:54
Speaker 3: of the robbery, that's first degree murder, and you're as
17:57
Speaker 3: guilty as the as the actors will principle in the
18:01
Speaker 3: first degree. Now having said that, of course that this
18:04
Speaker 3: gentleman's innocent, untelt proven guilty, he has not enter a plea,
18:10
Speaker 3: And perhaps under the circumstances one would say, well, why
18:15
Speaker 3: would you If the maximum penalty you can face his
18:18
Speaker 3: life with the recommendation of mercy, and there's no other offer,
18:21
Speaker 3: And I don't suspect there is too serious a case
18:23
Speaker 3: that what's bargaining with We just the state's got a
18:29
Speaker 3: burden to prove its case, and sometimes they just don't
18:31
Speaker 3: do it. And you look what's happened in the District
18:35
Speaker 3: of Columbia last week. The guy that threw the subway sandwich,
18:40
Speaker 3: I mean, he literally threw a subway sandwich and struck
18:43
Speaker 3: a federal agent hit him with it. I mean looked
18:47
Speaker 3: to be pretty clearly to me it would be a
18:51
Speaker 3: misdemeanor battery under state law. But under the the guidance
18:57
Speaker 3: of Genie Prero, who's now the US attorney for the district,
19:03
Speaker 3: the man was charged with a felony. And that case
19:07
Speaker 3: was presented to a grand jury at least twice, maybe
19:10
Speaker 3: three times, and the grand jury just refused to indict.
19:12
Speaker 2: Yeah, it's weird because I've always heard the expression, as
19:15
Speaker 2: ironic as it is, that prosecutors wol get a grand
19:18
Speaker 2: jury to indict a hand sandwich. Usually it's such a
19:22
Speaker 2: rubber stamp that it's not really that big of a deal.
19:24
Speaker 2: And not only this case, but apparently there's been several
19:27
Speaker 2: cases in DC that the grand jury's just said no,
19:30
Speaker 2: there's no they're there and is that unusual.
19:34
Speaker 3: Well, it may be unusual on that scale, and what
19:37
Speaker 3: happens in the District of Columbia is heavily reported upon.
19:41
Speaker 3: I mean, if the person's arrest in charge with the felony,
19:44
Speaker 3: they are a ragin in front of a magistrate judge,
19:47
Speaker 3: and then within thirty days their case under the law
19:50
Speaker 3: in DC has to be presented to a grand jury
19:53
Speaker 3: either indict them or or the case is dismissed. So
19:57
Speaker 3: that everybody on the press, school or in the district.
20:00
Speaker 3: Those that's what we have to watch for. These are
20:01
Speaker 3: the timeframes. And so when nothing happens and you see,
20:05
Speaker 3: well here's a not true bill, here's a not true bill.
20:07
Speaker 3: So that's big news in today's paradigm, it's not that uncommon.
20:15
Speaker 3: It's not common, but it's it's sort of in the
20:18
Speaker 3: middle ground for grand juries not to indict for everything
20:22
Speaker 3: the prosecutor wants. And I've been involved in a homicide
20:26
Speaker 3: case in Putnam County where the grand jury just refused
20:29
Speaker 3: to indict the accused for murder. They indicted him for
20:35
Speaker 3: voluntary manslaughter, which the jury ultimately acquitted him, but he
20:40
Speaker 3: clearly it was presented as a murder. He took a
20:42
Speaker 3: shotgun and shot another person killed him. But the circumstances
20:46
Speaker 3: were such, and the police are honest as they most
20:49
Speaker 3: often are, and told the jury what the circumstances were.
20:53
Speaker 3: They just said, no, we're not going to indicte him.
20:55
Speaker 3: So they returned an indictment for a felony or for
20:58
Speaker 3: a misdemeanor. Volunteer manslaughters. We are involuntary, and so that's
21:02
Speaker 3: where we went. It's uh, you know, it's it's troubling
21:11
Speaker 3: for lawyers, most lawyers to watch the law just being
21:17
Speaker 3: pummeled around on a political basis as if it's a
21:21
Speaker 3: sword or a shield, and when the law really should
21:24
Speaker 3: be what the law is. It's neutral, it's applied evenly
21:26
Speaker 3: to everybody, and uh, it's not meant to be used
21:31
Speaker 3: as something to make people mad at each other, which
21:34
Speaker 3: seems to be fairly common. I mean, think about the
21:37
Speaker 3: think about the the Cracker Barrel logo. There's the most apolitical,
21:45
Speaker 3: erroneous move made by major corporation. You know. Cracker Barrel
21:52
Speaker 3: has been a sort of a mid Atlantic Southern Great
21:55
Speaker 3: Great Great Plains sort of restaurant since it started back
21:58
Speaker 3: in the late sixties, but their sales have dropped off
22:02
Speaker 3: twenty percent, then their wren comes down twenty percent. Since
22:06
Speaker 3: the end of the pandemic, people got used to eating
22:09
Speaker 3: at ho I think most of these big family restaurant
22:12
Speaker 3: chains have the same experience. You know, people got used
22:14
Speaker 3: to eating at home. They don't go out as much.
22:18
Speaker 3: And so Cracker Barrel hired a lady who was she
22:24
Speaker 3: was president of Taco Bell. She was working for Young
22:27
Speaker 3: which is the biggest fast food restaurant chain company in
22:31
Speaker 3: the world, to come in and revive the sales. And
22:34
Speaker 3: she thought it would be a good idea to streamline
22:39
Speaker 3: Cracker Barrel restaurants. To take the knick knocks off the wall.
22:43
Speaker 3: Had to take Uncle Herschel and the Cracker Barrel off
22:46
Speaker 3: the side and just say Cracker Bear, well you remember
22:49
Speaker 3: the new coke. It's just the new coke. It just
22:53
Speaker 3: didn't work. Had nothing to do with the politics. They
22:57
Speaker 3: were trying to make money.
22:58
Speaker 2: Yeah, that's the thing that I think that people get
23:01
Speaker 2: these corporate boards and these people aren't in there to
23:04
Speaker 2: make you know, people interpret it into political decisions. But
23:06
Speaker 2: if you look at what happened to Taco Bell, you
23:09
Speaker 2: can go back to the history of Taco Bell while
23:10
Speaker 2: she was in charge of there, and look at some
23:12
Speaker 2: of the esthetic modifications that they made. They did the
23:14
Speaker 2: act same thing. It's just the culture now is such
23:17
Speaker 2: a place where somebody can't do a business maneuver without
23:20
Speaker 2: somebody put putting it into a political context.
23:22
Speaker 3: I think with Taco Bell, the plan sort of worked,
23:27
Speaker 3: h for sure, it did. Yeah, yeah, absolutely. Obell was
23:29
Speaker 3: more or less, you know, a very small drive through
23:33
Speaker 3: sort of set up. Now they've got a standardized construction plan,
23:38
Speaker 3: beautiful new place down in Nitro.
23:40
Speaker 2: They work with Big Cheese and that's a true story.
23:42
Speaker 2: They worked greatly with the dairy administry. All these new
23:45
Speaker 2: recipes that they roll out, They work with Cheese to
23:47
Speaker 2: put these things out. I mean, whatever you think about it,
23:49
Speaker 2: but they've found a niche with this and that's one
23:51
Speaker 2: of the reasons that their menu keep going getting better
23:54
Speaker 2: as they put different things on there. And I think
23:56
Speaker 2: that's all they were trying to do, you know, try
23:58
Speaker 2: to channel some of that into Rocker Bert. What I
24:01
Speaker 2: think where they missed was culturally people associate that with something.
24:05
Speaker 2: I mean, the truth of the matter is it's kind
24:07
Speaker 2: of bad versions of food you love. I mean, yeah,
24:10
Speaker 2: in a lot of ways. It's not very good versions
24:12
Speaker 2: of really good food.
24:13
Speaker 3: You can't really work much around the meat loaf, mashed
24:15
Speaker 3: potatoes and gravy. I mean, it's just.
24:17
Speaker 2: Good, right, exactly.
24:19
Speaker 3: Yeah, but there is a cultural connection. I was watching
24:22
Speaker 3: I think it was NPR, maybe been the Nightly News
24:25
Speaker 3: or Washington Week, and they interviewed a gentleman who was
24:27
Speaker 3: a professor of marketing and branding at the Wharton School,
24:33
Speaker 3: University of Pennsylvania. So he's one of those people who
24:36
Speaker 3: is just so smart and so obviously attuned to what
24:38
Speaker 3: he's saying. You think, boy, I wish I could have
24:39
Speaker 3: taken a class to this person. And that was his
24:42
Speaker 3: He said, you just have to realize there are certain
24:44
Speaker 3: iconic brands in the United States which which the customers
24:47
Speaker 3: identify socially. It's not really a political issues, but they
24:51
Speaker 3: feel comfortably. And this fellow he was originally from now
24:55
Speaker 3: in Mississippi somewhere, he said, you know, it's just the South.
24:58
Speaker 3: It's sort of the way. It is a lot of change,
25:01
Speaker 3: And it was just viewed as well, why do they
25:02
Speaker 3: have to change this? Not the great political hubbub that
25:06
Speaker 3: was created by people who make money on making other
25:09
Speaker 3: people mad at each other. Yeah, that's the Laura Lumers
25:12
Speaker 3: of the world who make money making other people mad
25:15
Speaker 3: at each other. Yeah, enough said, take a break.
25:17
Speaker 2: Let's take a break. Let's take a break. We have
25:19
Speaker 2: some more things we can talk about. When to come back,
25:20
Speaker 2: give us a call. Three zero four, three four five
25:22
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25:24
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25:30
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25:32
Speaker 2: put the flower paton on your side this morning. Three
25:33
Speaker 2: zero four, three four five fifty eight fifty eight online
25:35
Speaker 2: Payton Lawfirm dot com. We'll take a break and be
25:38
Speaker 2: back right after this. You're listening to ask the lawyer
25:40
Speaker 2: on five adwc HS the Voice of Charleston.
25:42
Speaker 5: Why do people trust Peyton Law Firm for personal injury
25:45
Speaker 5: claims in West Virginia? Simple, Tom and Harvey are from here,
25:50
Speaker 5: They live here, and they're proud of it. If you've
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Speaker 5: been hurt and you want no nonsense representation that gets results,
25:57
Speaker 5: you want the Peyton Law Firm don't let insurance come
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Speaker 2: Hey, thanks for tuning in this morning. You're listening to
26:59
Speaker 2: the Faith and Law Firm. Want to ask the lawyer
27:00
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27:02
Speaker 2: Deel Cooper. Thanks for tuning in this morning. You can
27:04
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Speaker 2: dot com, p E. Y t in Peyton Lawfirm dot Com.
27:21
Speaker 2: Their phone number at Nighter West, Virginia three zero four
27:23
Speaker 2: seven five five fifty five fifty six. Three zero four
27:25
Speaker 2: seven five five fifty five fifty six. I had a
27:28
Speaker 2: situation with an acquaintance of mine, and I thought this
27:32
Speaker 2: might be an interesting situation to bring up in the
27:35
Speaker 2: realm of because it's one of those questions, one of
27:37
Speaker 2: those situations where people just don't know, they don't know
27:39
Speaker 2: what they're what they can do, because they feel like
27:42
Speaker 2: there was an injustice somewhere. So I had to have
27:44
Speaker 2: a a family member of my wife's who was in
27:47
Speaker 2: a just a physical alter She fell and hurt herself.
27:51
Speaker 2: It was nothing crazy or anything like that, but she
27:54
Speaker 2: hurt the lower part of her body around her pelvis area,
27:57
Speaker 2: her cockys, you know, or her tailbone, and was in
28:00
Speaker 2: a lot of pain for a while. Eventually went to
28:02
Speaker 2: go see her doctor. Her doctor start started with, Okay, well,
28:05
Speaker 2: let's see if the pain goes away, and I think
28:06
Speaker 2: put her on some like mild pain management for you know,
28:08
Speaker 2: a week or something. See what happens. It got worse,
28:11
Speaker 2: didn't get any better, so they sent her to get
28:13
Speaker 2: X rays to see what was going on. And of course,
28:15
Speaker 2: in the state of things anymore, you don't get x
28:17
Speaker 2: raysed the next day. It's a few weeks. Wait, you
28:19
Speaker 2: get your x rays, you get your results in. And
28:21
Speaker 2: it turned out that when she went in to get
28:24
Speaker 2: her results evaluated, they scanned the wrong part of her,
28:28
Speaker 2: Like it wasn't even the part that was hurting. She's like,
28:30
Speaker 2: that's my upper body, it's my pelvis area that's hurting,
28:33
Speaker 2: it's my tailbone and stuff. This isn't even the right thing.
28:35
Speaker 2: So that it took her I think it was about
28:38
Speaker 2: six weeks to get a reschedule for her for her
28:42
Speaker 2: X ray and stuff. And so the x ray came
28:43
Speaker 2: back was just yesterday. You know, it was bad. She
28:46
Speaker 2: has like a separate attendon with it's a complete tear
28:48
Speaker 2: that's going to require repair. She has inflammation in both
28:52
Speaker 2: of her hips. I mean, it's a fairly bad result
28:55
Speaker 2: on her X ray, and so she's like, she understands
28:58
Speaker 2: she hurt herself. I mean, there's no question about that,
29:00
Speaker 2: but she's thinking, it's been like two or three months
29:02
Speaker 2: since she hurt herself now, and she's just now getting
29:04
Speaker 2: to the point where they've identified what was wrong. She
29:07
Speaker 2: wonders if there's an area in there where maybe it
29:09
Speaker 2: wasn't so bad.
29:11
Speaker 3: Well, the covenist question we have and deal with at
29:16
Speaker 3: the Peyton Law Firm relative to medical malpractice, medical negligence,
29:20
Speaker 3: negligence in the medical community, whether it's a hospital, a
29:23
Speaker 3: nursing home, a physician, a physician's assistant, is a person
29:28
Speaker 3: feels as if they're aggrieved? Is it as if an
29:30
Speaker 3: injustice has been done? And perhaps in this case that's correct.
29:35
Speaker 3: The question you've got to explore first is, well, was
29:40
Speaker 3: what happened here actually a deviation from an accepted standard
29:44
Speaker 3: of care? Those are the magic words in medical negligence.
29:48
Speaker 3: You know, what would a reasonable physician or healthcare provider
29:51
Speaker 3: who do or have done under the same or similar
29:53
Speaker 3: circumstances and keeping with a standard of care that's appropriate
29:58
Speaker 3: for the injury look and say, first of all, for
30:01
Speaker 3: this lady, Well, what was the order for the X ray?
30:04
Speaker 3: What do the orders say to to be x ray?
30:08
Speaker 3: If it was indefinite or refer to the upper body
30:11
Speaker 3: as opposed to the appropriate part. Maybe there was a
30:13
Speaker 3: deviation from the standard of care. Somebody miss miss prescribed
30:18
Speaker 3: an X ray. That happens. It's a mistake. It's like
30:21
Speaker 3: running a stop sign. Did the X ray tech just
30:28
Speaker 3: missed the order and x ray the wrong part? Okay,
30:32
Speaker 3: so if you say either one of those could be
30:35
Speaker 3: a deviation of a standard of care, well, now there
30:38
Speaker 3: may be some liability. Next question is, okay, it doesn't
30:43
Speaker 3: happen in a vacuum. Is there a material adverse effect
30:49
Speaker 3: on the patient because of the standard of care? I mean,
30:52
Speaker 3: people go to the hospital emergency all the time with
30:56
Speaker 3: the fall in, a pain in their arm, and the
30:59
Speaker 3: er docs an X ray. They get an x ray,
31:02
Speaker 3: they read it late in the evening, the radiologist reads
31:04
Speaker 3: it as negative. Pain persists a week later, go back
31:09
Speaker 3: another X ray. May be a more skillful technician, maybe
31:13
Speaker 3: a more studious radiologist. Oh wait a minute, there's a fracture,
31:17
Speaker 3: so we've got to cast this. Well, okay, they missed it.
31:21
Speaker 3: They made a mistake. But if treatment is promptly administered
31:26
Speaker 3: and the result is the same as it would have
31:29
Speaker 3: been but for the black standard, there's no case and
31:36
Speaker 3: you have to suffer a demonstrable harm. So in the
31:41
Speaker 3: case of your friend, and the question is, all right,
31:44
Speaker 3: let's look at the treatment options that may have been
31:46
Speaker 3: available back when as opposed to what treatment options are
31:50
Speaker 3: available now. And then you say, well, can you prove that,
31:54
Speaker 3: because if they x ray the wrong party of your
31:56
Speaker 3: body three months ago, how are you going to prove
32:00
Speaker 3: what the condition was that needed to be treated then
32:03
Speaker 3: as opposed to now. So you know, it's full of pitball.
32:07
Speaker 3: The thing. You know, every every accident, every mistake, is
32:14
Speaker 3: not an actionable claim. And in the field of medical malpractice,
32:19
Speaker 3: tom my Son does some. But I'll tell you, like
32:23
Speaker 3: everybody else who is in the planeiffs business who represents
32:27
Speaker 3: folks who are injured, you've got to be really selective
32:31
Speaker 3: about the cases you take. And you have to quiz
32:33
Speaker 3: folks about, you know, what is the effect of this,
32:36
Speaker 3: what happened here? And then maybe get a preliminary opinion
32:39
Speaker 3: from an expert about well, he said, but this happens.
32:42
Speaker 3: It's like a punctured I mean, I've got an appointment
32:46
Speaker 3: this morning at eleven o'clock with my oncologist. You know,
32:48
Speaker 3: it comes up every six months. You get to go
32:50
Speaker 3: down and sit in dread to wait and see if
32:52
Speaker 3: they're smiling or frowning. But I didn't have part of
32:55
Speaker 3: my colon removed seven years ago because I had cancer.
32:59
Speaker 3: Well prior to that, they had to have a biopsy.
33:04
Speaker 3: Doctor Rarbauld, who's up in the legislature, he did the colonoscopy. Well,
33:08
Speaker 3: sometimes the bell gets nicked. It happens. I mean, it's
33:13
Speaker 3: it's nothing's perfect. And when you sign up a consent
33:18
Speaker 3: to that surgery, sign a waiver that you understand that's
33:21
Speaker 3: a side effect. Now, that doesn't mean if you start
33:24
Speaker 3: to get sick with flu like symptoms, a high temperature
33:28
Speaker 3: pain in the abdomen and go to the emergency room
33:31
Speaker 3: shortly after you've had a colonoscopy or a similar procedure
33:36
Speaker 3: and they give you some pills for flu and sends
33:37
Speaker 3: you home. Now that's where a case starts. Because the
33:40
Speaker 3: standard of care there is no, no, no, no, admit
33:43
Speaker 3: this person. Do some advanced plot work. See let's see
33:46
Speaker 3: what we've got here. Because parent nitis can kill you.
33:49
Speaker 3: And if you don't treat a nicked bell, but if
33:51
Speaker 3: you treat it in time, there's some inconvenience on the patient,
33:55
Speaker 3: maybe some additional pain and discomfort, but if their ultimate
33:59
Speaker 3: result is good, acceptable, that's not really a case that
34:02
Speaker 3: can be litigated. Got to remember, there's a lot of
34:05
Speaker 3: criticism about plaintiff lawyers. I mean, you've got Greg Thomas
34:09
Speaker 3: over here. This usual question when a lawyer calls them, well,
34:12
Speaker 3: what do you drive? What kind of car do you drive?
34:13
Speaker 3: I guess as if working hard and making some money
34:17
Speaker 3: doesn't entirely drive a car. You know, I drive an Avalon.
34:21
Speaker 3: Let me say, because they made the transmission in Buffalo.
34:26
Speaker 3: It costs a lot of money to litigate these cases.
34:30
Speaker 2: You know, you.
34:30
Speaker 3: Cannot file a medical malpractice case in ninety nine percent
34:34
Speaker 3: of the cases that come up here in West Virginia.
34:36
Speaker 3: There are very few exceptions unless you have a certificate
34:41
Speaker 3: from an expert in the same similar field as the
34:46
Speaker 3: healthcare professional that you believe committed malpractice, saying there's probable
34:52
Speaker 3: cause to believe here that this standard of care has
34:56
Speaker 3: been breached, and you have to give that to the
34:58
Speaker 3: other side before you can file a loss. It's jurisdictional.
35:01
Speaker 3: Well that's not cheap. You mean you take a case. Well,
35:05
Speaker 3: it looks to me like the equities are on our
35:08
Speaker 3: client side. Someone went in to the hospital, they appeared
35:11
Speaker 3: perfectly healthy. A couple of days later, they start to
35:15
Speaker 3: get a little worse. The doctors doesn't come around. It's
35:17
Speaker 3: over the weekend, nobody checks in, and then boom, you
35:20
Speaker 3: have a bad event. Person dies. Well, certainly, and if
35:24
Speaker 3: it's a younger person, it certainly is a tremendous loss.
35:27
Speaker 3: I mean, it's a loss for any life, but a
35:30
Speaker 3: wage earner parent loss is considerably more significant in the
35:35
Speaker 3: eyes of the law because of the long term effect. So, okay,
35:40
Speaker 3: we're going to send this to gather up all the
35:42
Speaker 3: medical records, which can cost hundreds of dollars to get
35:45
Speaker 3: copies of all these medical records from whatever center you're in.
35:49
Speaker 3: You send them. First of all, you find an expert,
35:53
Speaker 3: you maybe use a search a headhunter service to find
35:56
Speaker 3: a qualified expert to review those, and you review them,
35:59
Speaker 3: and then you're in there for three or four thousand
36:01
Speaker 3: dollars and you find out, well, you don't have a case.
36:04
Speaker 3: So and but that's one of the benefits of coming
36:07
Speaker 3: to a firm like the Paytent Law Firm. We are
36:09
Speaker 3: well capitalized. We finance cases for hundreds of thousands of dollars.
36:15
Speaker 3: I actually had a products case against Ford where we
36:17
Speaker 3: put in a considerable amount of money one against GM.
36:21
Speaker 3: They both were successful, fortunately. But if you've got a loss,
36:24
Speaker 3: you don't need to go to the biggest or the
36:25
Speaker 3: biggest advertiser to get a lawyer. Here can get you
36:28
Speaker 3: some really good results and has the money and the
36:30
Speaker 3: experience to do it. You can call the Paytent Law
36:33
Speaker 3: Firm at three oh four seven five five five five
36:36
Speaker 3: five six, or go online at Paytonlawfirm dot com and
36:39
Speaker 3: you'll find somebody as qualified or more than you see
36:44
Speaker 3: on billboards and TV to help you handle your case.
36:47
Speaker 3: That's all. I don't know if I'll see you next
36:49
Speaker 3: week or not. Tom maybe here next week. Well, whichever,
36:51
Speaker 3: we'll have a good show again. Yeah, absolutely, and we
36:54
Speaker 3: do this every Thursday.
36:55
Speaker 2: The Payton Law Firm is here for ask the Lawyer
36:57
Speaker 2: and has been doing this for decades, and we encourage
36:59
Speaker 2: you tune in then again and have your questions ready
37:02
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37:03
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37:05
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37:07
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37:09
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37:12
Speaker 2: can find cast up there for Ask the Expert. Coming
37:14
Speaker 2: up next, it's gonna be Dave Allen with five eighty
37:16
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37:18
Speaker 2: After that will be TJ. Meadows and Dave Wilson on
37:21
Speaker 2: talk Line, and then Dave Allen will be back with
37:24
Speaker 2: Channel thirteen's Amanda Baron for midday in the afternoon, and
37:27
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37:29
Speaker 2: o'clock for Metro News Hotline. Thanks for tuning in everyone
37:32
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37:34
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