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Experienced

 I have 30 years of litigation experience in just about every type of law.

The judge's seat is no place for an unseasoned attorney. Cases grind to a halt and the docket becomes backlogged while a novice attempts to keep up.  Judges must have substantial litigation experience for the speed and complexity of today's courtrooms. Like on the sporting field, a really GOOD referee has played the game for years and knows what the players are likely to do before they do it.  An inexperienced referee, like an unseasoned attorney, misses fouls, delays calls, and impedes progress of play.  

Hammer is unrivaled in his depth and breadth of experience.

"I've been practicing law for 30 years.  My cases have included criminal as well as civil work and I have appeared before all levels of our judicial system from local administrative bodies all the way up to the U.S. Supreme Court."

Take a look for yourself at some of Hammer's most notable cases:

Peacemaker Properties, LLC v. James Gerald Parsons, et al., Civil Action No. 15-C-127, Berkeley County, WV (defrauded farm manager) – Judge Michael D. Lorensen, in awarding attorneys fees, discussed the novelty, difficulty, and complexity of this litigation.

McDonough v. Jefferson County Council on Aging, et al., Civil Action No. 12-C-411, Jefferson County, WV (elderly nurse discharged from employment following likely cancer diagnosis and request to use accumulated leave time to undergo surgery).

 Beavers v. WV Department of Transportation, et al, tried before a West Virginia Human Rights Commission administrative law judge; affirmed by the West Virginia Human Rights Commission; aff’d by the Circuit Court of Kanawha County, Civil Action No. 05-AA-108; petition for appeal denied, West Virginia Supreme Court, No. 080294.  [This was a hard-fought case involving egregious sexual harassment of my client, a contract employee, by an employee of the WV DOT and the failure of her employer, despite knowledge of the sexual harassment, to stop the harassment and instead, discharging her from employment despite her exemplary job performance.  Ultimately, Ms. Beavers recovered in excess of $1,000,000, including attorney’s fees and costs].

Poe v. Campbell et al., Civil Action No. 08-C-223, Jefferson County, WV (this case has been through two West Virginia Supreme Court appeals). 

Britner v. West Virginia v. West Virginia’s Choice, Inc., et al., Civil Action No. 16-C-640, Berkeley County, West Virginia [this is likely the first case filed in West Virginia pursuant to W.Va. Code § 55-7J-1 et seq., (effective June, 2016) a statute that imposes fiduciary duties and authorizes civil remedies against those who commit, among other things, financial abuse of the disabled].

Fink v. Hollingsworth Logistics Group, LLC, Civil Action No. 13-C-794, Berkeley County, West Virginia [industrial incident due to employer disregarding fork lift operator’s truthful report of prescription narcotic usage resulting in Fink being seriously and permanently disabled after being crushed by fork lift.  Deliberate intent case resolved at mediation after summary judgment denied following extensive factual development and briefing].

Weimer v. Sanders, 232 W. Va. 367, 752 S.E.2d 398 (2013) [This decision reaffirms that a plaintiff has an independent right to have claims of unlawful discrimination arising under the West Virginia Human Rights Act heard by the Human Rights Commission or in circuit court despite having filed a grievance arising out of the same facts and circumstances with the West Virginia Public Employees Grievance Board.  I wrote an amicus curiae brief that was partially the basis of the Court’s opinion]. 

Hersh v. Target Corporation, Civil Action No. 10-C-57, Circuit Court of Berkeley County, West Virginia.  1,292 former employees across West Virginia recovered at total of $1,858,478.54 due to untimely payment of final wages.  Final Order entered October 30, 2013.

State ex rel. Mass. Mut. Life Ins. Co. v. Sanders, 228 W. Va. 749, 724 S.E.2d 353 (2012): [This cluster of cases involve extraordinarily complex legal and factual issues surrounding a type of pension plan known as a 412i plan.  The allegations involved fraud and tax fraud in the sale of the annuities and life insurance products that were used to fund these plans.  Due to the pervasiveness of the confidentiality clauses “resolving” these cases, I am severely limited in my ability to discuss these cases in any detail other than by reference to the public record.  However, and for whatever it’s worth by way of background (and without affirming any of the content) I have attached a three part media report of an investigative journalist who sought to understand and expose these cases.  I was an active team member in a group of four attorneys who litigated all but one of the cases, and one of six attorneys in the remaining case].

Baldau v. Jonkers, 229 W. Va. 1, 725 S.E.2d 170 (2011) [Balancing and explaining the right of a public official (my client) to seek redress for malicious prosecution versus an expansive reading of the Noerr-Pennington doctrine purportedly constitutionally immunizing the right to petition for redress of grievances]. 

Jefferson County Commission, et al., v. Natalie E. Tennant, in her capacity as Secretary of State; Earl Ray Tomblin, in his capacity as Governor of West Virginia; Jeffrey Kessler, in his capacity as the Acting President of the WV Senate; and Richard Thompson, in his capacity as the Speaker of the House of Delegates, Case 2:11-cv-00989, (SDWV 2011); rev’d Tennant v. Jefferson Cnty. Comm’n, 133 S. Ct. 3 (2012) (per curiam) [after a trial on the merits, three judge panel ruled 2-1 that West Virginia’s congressional redistricting plan was unconstitutional.  However, the panel was reversed on appeal to the United States Supreme Court].  I was co-litigation counsel below and assisted the University of Virginia Supreme Court Law Clinic on appeal.

Bess v. J.B. Hunt Transport, Inc., 2007 Surface Transportation Act [STA] 34 [truck driver was terminated from employment for refusing to drive a tractor trailer on I-81 that he deemed unsafe based upon his training and an examination of a wheel heat sensor.  Tried before a federal administrative law judge.  Back pay, interest and attorney’s fees].

Seman v. Keefer, Civil Action No. 05-C-582, Circuit Court of Berkeley County, West Virginia [I defeated the plaintiff’s claims and prevailed before the jury on various counterclaims, including sexual harassment. 

Thornhill, LLC v. Latterell, et al., Civil Action No. 04-C-191, Jefferson County, West Virginia.  [In this action, land developers sued three citizens who testified at a public hearing in opposition to the developer’s plans to build a 900 house subdivision.  The testimony concerned road safety, migrating bird species habitat, and the inadequacy of existing infrastructure.  I defended these citizens from this
Lawsuits Against Public Participation [“SLAPP” suit] and eventually obtained summary judgment for these citizens.  This was an important decision locally because land developers stopped using this tactic, but then some resorted to a different tactic – attacking the appointed officials charged under Jefferson County’s zoning system with approving or disapproving of proposed major and minor subdivisions.  See e.g., Baldau v. Jonkers, 229 W. Va. 1, 725 S.E.2d 170 (2011) and Jonkers et al. v. Todd Baldau, Civil Action No. 06-C-373, Circuit Court of Jefferson Countly, West Virginia, Three Judge Panel, infra].

Sims et al. v. Rosedale Cemetery Company, Service Corp. International, Inc., et al., Civil Action No. 03-C-506, Berkeley County, West Virginia.  [This class action involved the deliberate destruction of pre-need funeral contract records, the failure to record the same with the Office of the West Virginia Attorney General, and embezzlement of pre-need funeral funds held in trust.  Through this litigation, the successor corporate owner, who had booked the unfunded liability and reduced the purchase price accordingly but had not disclosed the issues identified to the WV AG nor sought to inform citizens that it did not have records of their contracts signed in the 1960s through the 1980s, was required to publish notice and honor contracts for funeral goods and services].

Nolan et al. v. Reliant Equity Investors, LLC, et al., Case No. 3:08-CV-62, United States District Court for the Northern District of West Virginia, the Honorable Judge Bailey.  [This case arose when a marketing distribution center in Jefferson County suddenly closed without warning, fled West Virginia and failed to pay several hundred West Virginia employees.  As lead counsel, I had to navigate federal involuntary bankruptcy proceedings, state liquidation proceedings in Rhode Island, and pursue three investors from Chicago who orchestrated the closure. The resultant settlement of $1,171,034.60, approved by Judge Bailey, lead to payment in full for all affected employees].

Keplinger v. Va. Elec. & Power Co., 208 W. Va. 11, 537 S.E.2d 632 (2000): Chief Counsel on appeal, co-counsel below [establishing litigation safeguards for confidential medical records].  Per Lexis Advance, this case has been cited by the West Virginia Supreme Court twenty-three times, twice by the Southern District of West Virginia, and by the highest courts of appeal in Colorado and New Mexico.

Meadows v. Wal-Mart Stores, 207 W. Va. 203, 530 S.E.2d 676 (1999) [Important decision interpreting the West Virginia Wage Payment and Collection Act and resulting in the recovery of more than $6,000,000 for a class of my clients in the consolidated case of Remsberg, et al.  v. Kmart Corp.].  Per Lexis Advance, this case has appeared in sixty-seven Citing Decisions and in eighty-seven other Citing Sources.

Shingleton, et al. v. ICT Group, Inc., Berkeley County Circuit Court, Civil Action No. 98-C-517.  [Defendant, a publicly traded telemarketing firm, engaged in the deliberate manipulation of hundreds of West Virginia workers’ time records through the use of algorithms applied by call center management.  Proving this scheme was complex but ultimately successful in recovering the wages of working West Virginians after the Circuit Court of Berkeley County approved a class-wide settlement of $15.75 million.  This case and settlement received national media coverage.  I served as the lead attorney in litigation strategy, motion practice and conduct of discovery, including most of the depositions, for a five member team of attorneys].

Vandevender v. Sheetz, Inc., 200 W. Va. 591, 490 S.E.2d 678 (1997), writ of certiorari denied, 522 U.S. 1091, 118 S. Ct. 883, 139 L. Ed. 2d 871 (1998) [affirming the right of a disabled worker to recover punitive damages for the knowing and willful violation of her human rights as well as for retaliating in violation of the Workers’ Compensation Act; discussing punitive damages and the standard of review.  The decision resulted in the recovery of $3 million for my disabled client].  Per Lexis Advance, this decision has appeared in nineteen Citing Decisions and in sixty-five other Citing Sources including law reviews and legal treatises.

Hanlon v. Chambers, 195 W. Va. 99, 464 S.E.2d 741 (1995) [major employment law decision that clarified important summary judgment standards in employment law cases generally and established the right of all women, regardless of whether they are employed in a supervisory or subordinate position, to be free from unlawful sexual harassment].  Per Lexis Advance, this decision has appeared in seventy-five Citing Decision and 105 times in other Citing Sources, including law reviews across the nation.

Pappas v. Old National Bank, Berkeley County Circuit Court (1993) [jury verdict against defendant for failure to accommodate a disabled employee and for selecting her for a lay-off of only one person].  

State of West Virginia v. Everett, 92-F-81, Harrison County Circuit Court. [Defendant charged with attempted bank robbery].  

Smith v. General Motors Corporation, tried before a West Virginia Human Rights Commission administrative law judge; affirmed by the West Virginia Human Rights Commission; reversed by the Circuit Court of Kanawha County, which itself was reversed by the West Virginia Supreme Court of Appeals, 216 W. Va. 78, 602 S.E.2d 520 (2004) and the nearly $230,000 award reinstated.  Make whole relief involving restoration of seniority lost due to General Motor’s unlawful discrimination enforced in the Circuit Court of Berkeley County.  Full attorney’s fees and costs recovered for Mr. Smith.

Jones v. United States Coast Guard, Federal Mediation and Conciliation Service, Case # 06-52703.  [This was a complex disability discrimination case I filed pursuant to the Rehabilitation Act of 1973 on behalf of a Coast Guard employee which also implicated a collective bargaining agreement, Merit Systems Protection Board standards and a nuanced body of Coast Guard rules and regulations.  In a forty-four page single spaced decision dated January 30, 2007, plaintiff was awarded all relief she sought including back pay, restoration of all benefits including length of service credit, reinstatement and an award of attorney’s fees and costs.]

Jonkers et al. v. Todd Baldau, Civil Action No. 06-C-373, Circuit Court of Jefferson County, West Virginia, Three Judge Panel:  Judge Hatcher, Judge Holland and Judge Janes.  [My client, Mr. Baldau, was an appointed member of the Jefferson County Planning Commission.  Plaintiff land speculators/developers, after having failed at their SLAPP suit strategy of suing citizens who testified at public hearings in opposition to aspects of their proposed land developments, twice sought to remove Baldau from office pursuant to W. Va. Code § 6-6-7.  A three judge panel was appointed to resolve the second such attempt on the merits.  The Panel unanimously found that there was not a “scintilla of evidence” to support the developers’ claims of malfeasance against Baldau.  After my successful representation of Baldau in a subsequent tort suit resulting in a damages verdict against these same speculators/developers [Baldau v. Jonkers, 229 W. Va. 1, 725 S.E.2d 170 (2011)] it brought to a close the era in Jefferson County of speculators/developers attempting to bully those who opposed any aspect of their projects].

Alsop v. Weese, American Arbitration Assoc.  [This case involved significant defects in the construction of a home.  I served as second chair for my partner, Joseph Ferretti.  In August 2007 an arbitrator awarded our client $392,548.98.  However, it was necessary to enforce the arbitral award in federal court where it was affirmed by the United States District Court for the Northern District of West Virginia, Civil Action No. 3:07-MC-50 and ultimately recovered for our client].

In the Matter of Raymond J. Funkhouser Occupational Permit Holder No. 34168, West Virginia Racing Commission.  [In this case, the WV Racing Commission sought to suspend the occupational permit of my client on October 2r, 2007 – shortly before the West Virginia Breeder’s Classic which was to be run on October 20, 2007 and in which my client had entered a strong contender for this large purse race.  It was urgent that the issues be finally resolved with great haste and so a full hearing was held on October 15, 2007.  In a decision dated October 16, 2007 Mr. Funkhouser prevailed on all issues and the order suspending his occupational permit was vacated].

W. Va. Reg'l Jail & Corr. Facility Auth. v. A. B., 234 W. Va. 492, 766 S.E.2d 751 (2014): Co-counsel for Amicus Curiae.

Fertal v. Campbell, No. 12-0038, 2013 W. Va. LEXIS 527 (May 17, 2013): Chief Co-counsel.

Witt v. W. Va. State Police, 633 F.3d 272 (4th Cir. 2011): Co-counsel on brief.

State ex rel. Campbell v. Sanders, No. 15-0033, 2015 W. Va. LEXIS 805 (June 16, 2015): Chief Co-counsel.

Rissler v. Jefferson Cty. Bd. of Zoning Appeals, 225 W. Va. 346, 693 S.E.2d 321 (2010): Chief Counsel.

Jefferson Utils., Inc. v. Jefferson Cty. Bd. of Zoning Appeals, 218 W. Va. 436, 624 S.E.2d 873 (2005):  Counsel for one of the appellants.

State ex rel. Brown v. Corp. of Bolivar, 217 W. Va. 72, 614 S.E.2d 719 (2005): Chief Counsel.

Gress v. Petersburg Foods, Ltd. Liab. Co., 215 W. Va. 32, 592 S.E.2d 811 (2003): Chief Co-counsel.

State ex rel. Ogden Newspapers v. Wilkes, 211 W. Va. 423, 566 S.E.2d 560 (2002): Co-counsel.

Meadows v. Wal-Mart Stores, 207 W. Va. 203, 530 S.E.2d 676 (1999): Chief Counsel below and co-counsel on appeal in two of the cases consolidated on appeal. 

Mumaw v. U.S. Silica Co., 204 W. Va. 6, 511 S.E.2d 117 (1998): Chief Co-counsel.

United States v. Gray, No. 94-5776, No. 94-5801, No. 94-5923, No. 94-5932, No. 94-5950, 1996 U.S. App. LEXIS 17523 (4th Cir. July 17, 1996):  Court appointed counsel for one of the criminal defendants in the large drug trafficking conspiracy.

State ex rel. Ogden Newspapers v. Wilkes, 198 W. Va. 587, 482 S.E.2d 204 (1996): Co-counsel.

United States v. Coleman, No. 94-5449, 1994 U.S. App. LEXIS 29383 (4th Cir. Oct. 21, 1994): Court appointed counsel.

Hollen v. Hathaway Elec., Inc., 213 W. Va. 667, 584 S.E.2d 523 (2003): Chief Counsel for Amicus Curiae.

Keplinger v. Va. Elec. & Power Co., 208 W. Va. 11, 537 S.E.2d 632 (2000): Chief Counsel on appeal, co-counsel below.

Robertson v. Opequon Motors, Inc., 205 W. Va. 560, 519 S.E.2d 843 (1999): Co-counsel.

Yourtee v. Hubbard, 196 W. Va. 683, 474 S.E.2d 613 (1996): Chief appellate counsel [retained post-trial].

Hawkins v. Consolidation Coal Co., No. 90-2222, 1993 U.S. App. LEXIS 3375 (4th Cir. Feb. 22, 1993): Associate Counsel on brief.

Hinerman v. Charleston Gazette, 188 W. Va. 157 (1992), cert. denied, Daily Gazette Co. v. Hinerman, 507 U.S. 960, 113 S. Ct. 1384 (1993):  Associate trial counsel.  Note:  I did not participate in the appeals.

Doulamis v. Alpine Lake Prop. Owners Ass'n, 184 W. Va. 107, 399 S.E.2d 689 (1990):  Associate counsel on brief.

Casteel v. Consolidation Coal Co., 181 W. Va. 501, 383 S.E.2d 305 (1989):  Associate counsel on brief.

Mawing v. PNGI Charles Town Gaming, L.L.C., 426 F. App'x 198 (4th Cir. 2011):  Chief Counsel.

PNGI Charles Town Gaming, L.L.C. v. Mawing, 603 F. App'x 137 (4th Cir. 2015): Chief Counsel.

Mawing v. PNGI Charles Town Gaming, Case No. 55-20-1200-0015 (55 196 Y 00015 12), American Arbitration Association, Commercial Arbitration Tribunal.  [My client, a horse trainer, originally brought suit in the Circuit Court of Jefferson County arising from PNGI’s September 2009 deprivation of her horse stalls in alleged retaliation for her performance of her duties as a Charles Town Horsemen’s Benevolent and Protective Association board member.  The case was removed to the US District Court for the Northern District of West Virginia.  Defendant appealed the District Court’s refusal to dismiss claims that defendant contended were not arbitral and instead, ordering  all claims to arbitration.  The Fourth Circuit affirmed.  The case was arbitrated before a three judge panel of commercial arbitrators.  One of the arbitrators died shortly after the decision was entered and the defendant appealed the arbitrators’ unanimous Partial Award to the District Court and alleged, among other things, that the deceased arbitrator “must have” been too ill to meaningful participate in the decision, and that the other arbitrators had improperly colluded.  The District Court affirmed the panel’s Partial Award and that decision was affirmed by the Fourth Circuit.  Mediation resolved all issues, including a lifetime award of horse stalls so long as Ms. Mawing was training horses to run at Charles Town, save an award of attorney’s fees and costs.  That issue returned to arbitration and by award entered on September 15, 2016 Ms. Mawing was awarded the bulk of the attorney’s fees and costs that were paid on her behalf by the CTHBPA, thus ending a seven year legal battle that went twice to the Fourth Circuit Court of Appeals].



   



 


David Hammer for Judge.  Treasurer Mike Earley. 
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