DELAY IN YOUR PAYDAY
So you've agreed to a settlement award with the Defendant(s) in your personal injury matter and are geared up to receive your pay out. A few weeks pass, and still nothing. You wonder what's going on, so you call your attorney. This is a scenario that all personal injury attorneys and clients are all too familiar with, but sometimes there are justifiable reasons for the delayed disbursement. The following are just a couple of them:
1. Settlement Agreement - Generally speaking, the terms of a personal injury settlement are reduced to a writing called a settlement and release agreement ("SAR"). While a lot of terms are usually boilerplate and contained in almost every SAR, there are sometimes terms that are novel to the specific SAR and require substantial negotiation between the settling parties. This negotiation process could cause some delay as the attorneys "duke" it out regarding which terms stay, which terms go and what language needs to be altered.
2. Lien Negotiations - Another common delay is the requirement that you satisfy any pending liens against the settlement. Your insurance carrier or medical lien holder will demand that they be reimbursed for the portion of the medical bills that they covered. This occurs through a lien. Most personal injury attorneys attempt to negotiate these medical bills/liens down to the lowest possible number to ensure that the client receives the maximum possible recovery. These negotiations can, at times, be contentious and time consuming.
As you can see, getting a settlement check to a client is not as easy as one would think. That is why is pays to have an experienced and tenacious attorney that will be with you every step of the way and make sure you get your payout!
WHO PAYS THE COST TO BE THE BOSS
A common question when discussing a contingency fee arrangement is how the costs associated with advancing the case are handled when a case proves unsuccessful.
Not all personal injury cases turn out to be successful. A key consideration a personal injury client should iron out at the beginning of his or her case is how the costs of the case will be handled if the attorney is unsuccessful in obtaining a favorable settlement or judgment. In this context, I have seen contingency fee attorneys handle this issue in three different ways.
1. No Recovery, No Costs - The most common manner that I have seen law firms deal with costs in an unsuccessful case is that the law firm will wholly adsorb the costs in connection with pursuing the matter.
2. Costs Regardless of Recovery - Some law firms attach the costs of advancing the case to the client regardless of outcome of the case.
3. Hybrid - A lawyer or law firm will front the costs of advancing the client's case up to a certain point, and then confer with the client regarding risks associated with moving forward. If the client wishes to proceed, the lawyer or law firm will then require the client to share in the costs of the case.
The discussion of how case costs will be handled should be discussed during the initial attorney-client meeting and clearly spelled out in the attorney-client fee agreement. A client should not be surprised by how costs are handled, and every contingency fee lawyer should seek to make sure that his or her client is completely aware of the risks involved with pursuing the matter.
LET'S TALK IT OUT
Despite the best efforts to maintain client satisfaction, differences of opinion and other challenges will inevitably arise within the context of certain attorney client relationships. When these issues come to the surface, there are some tried and true methods of conflict resolution that can be deployed in efforts to salvage the relationship, and get it back on track.
Resolving conflicts within the context of the attorney-client relationship can prove to be taxing for both the attorney and client. Where disagreements between the attorney and client arise, I have always found it more valuable to have a face to face conversation with the client(s) and invite open and transparent discourse.Often times, issues that seem insurmountable can be effectively addressed and resolved with honest communication.
If the relationship has devolved to a point of no return, however, it may be best to part ways. An attorney also cannot force a client to remain under his counsel, and it should be noted that clients have the absolute right to terminate the attorney client relationship, regardless of whether “good cause” exists. See ABA Model Rule 1.16(a)(3); Fracasse v. Brent, 6 Cal. 3d 784, 790 (1972).) In fact, a client can terminate counsel, at any stage of the relationship, including, in the middle of a trial. Berger v. Mantle, 18 Cal. App. 2d 245, 248–294 (1936).)
Before letting the problems within the relationship reach a boiling point, attorneys should make every attempt to actively engage their client(s) in discussion and see if the issues can be tabled and put to bed.
BALK THE TALK
In the wake of an auto collision, it is most prudent to refrain from speaking with the other person’s insurance company, as you have no legal obligation to talk to the other driver’s insurance carrier. Rather, the best way to deal with the other driver's insurance carrier in most cases is to contact an experienced personal injury attorney.
Although the other driver's insurance company may initially come off as friendly and affable, be clear that the insurance company isn’t looking out for you or your best interests.
Insurance companies are primarily motivated by their own financial interests and protecting the interests of their policy holder(s). They protect these interests by attempting to accomplish two things with respect to any potential claim:
1.Deny the maximum number of motor vehicle collision claims outright.
2.Negotiating the lowest possible settlement possible on all other motor vehicle collision claims.
Typically, victims of motor vehicle collisions are not insurance adjusters or attorneys. As such, the insurance companies will take advantage of this fact and attempt to gain a strategic advantage. They will use their superior knowledge of the law and insurance claims schematics and leverage that against you.
By talking to the insurance adjuster for the other driver, you are almost certainly putting your case in jeopardy. The insurance company will use whatever information you provide them against you whether or not you are at fault for the collision.
Simply put, in order to ensure that your legal interests are protected, it is advisable to have all contact with the insurance company come directly from an experienced personal injury attorney.
THE TELL ALL TO SLIP AND FALLS
In California, certain elements must be met in slip and fall incidents.
1. Duty- The first element that must be satisfied bring a successful claim in a California slip and fall incident is duty. This means that the person(s) or business who owned or controlled the property had an obligation to keep the premises safe by implementing reasonable safeguards.
2. Notice: Defendant Knew or Should Have Known about the Dangerous Condition/Instrumentality- Notice is one of the most critical issues that must be examined in a California slip and fall. If the tortfeasor knew about the dangerous condition or instrumentality but opted to ignore it, notice would be conclusively established.
3. The Dangerous Condition - As a victim of a slip and fall incident in California, you must still prove that dangerous condition was indeed present. As the plaintiff, one must demonstrate that the condition was, in fact, dangerous in addition to showing that the defendant knew or should have known about the condition and failed to remedy it.
4. Damages- Lastly, the Plaintiff must prove that he or she suffered actual damages as a result of the slip and fall. In other words, the Plaintiff must show physical manifestations of injury or property damage as a result of the slip and fall.
BE COMPOSED BEFORE GETTING DEPOSED
California Code of Civil Procedure Section 2025, et. seq., governs deposition proceedings in California. A deposition is an important aspect of a case, as it allows a party to conduct further investigation and inquiry into aspects of the case that cannot be fully teased out during the written discovery phase of the case.
Not only does a deposition serve as a time for a party to analyze the deponent's ability to recall the facts and circumstances that gave rise to the lawsuit, it also allows a party to evaluate the witness' credibility, candor, and body language.
As such, it is critically important for a Plaintiff's personal injury attorney to thoroughly prepare his or her client in advance of the deposition. While all the variables cannot be controlled or anticipated, the following categories of information are the touchstones for effective deposition preparation:
Deponent's Background Information
Facts and Circumstances of the Incident/Collision
Medical Treatment Received
Lost Time at Work/Lost Wages
Deponents Current Status
Again, while the above-listed categories will not ensure that everything will go as planned, I can guarantee that all of the categories listed above will be fully explored at deposition. Be prepared!
PUBLIC SPEAKING AND CAPTIVATING YOUR AUDIENCE
A recent survey of Americans revealed that above death and incarceration, fear of public speaking sat atop the list of things we fear the most.
While public speaking can be a nerve wracking and stressful experience, there are some key steps that you can take to minimize the potentially dreadful experience and deliver a speech or argument worthy of praise.
1. Be prepared - The future favors the prepared. Before presenting your speech or argument, make sure you have rehearsed the presentation and delivered it from start to finish. Write the speech down word for word. Practice your inflections and pauses. Record yourself. Do whatever it takes to commit the speech to memory so that you can unleash your full potential on the big day.
2. Core Belief - You have to believe so deeply in what you are saying or arguing that everyone around you gets enveloped in your energy. If you do not believe in your case or in what you are saying, how can anyone else?
3. Be Present - When giving the presentation, be present. Detach from the gravity of the experience and ground yourself in the now. Understanding that you are living the experience in the moment will allow to calm your nerves and minimize anxiety. You are in control, just deliver!
4. Visualize the end game - You can't get to your destination, if you don't know where you're going, so start with the end in mind. What are you trying to accomplish? What is the purpose of your presentation? Make sure you understand what you are trying to achieve, otherwise your presentation will devolve into a mindless and unfocused diatribe.
Now, get out there and deliver. I believe in you !
It's that time of year where law students across the state of California are trading their board shorts for BARBRI textbooks. There is no way around it, studying for the California BAR exam is a grueling challenge of will and endurance. That said, it's a test that you'll want to take one time and one time only.
So as to make sure that you only have to go through this dreadful experience once and feel the exhilaration of passing on your first try, I offer the the following pieces of advice:
Consistent Study Plan- Find a consistent study plan and stick to it. Consistency is the key! Map out your study routine and account for every hour of your day. It is crucial to get into a steady flow so that it becomes muscle memory.
Rest and Repeat- Studying for the BAR Exam is not like cramming for your traditional exams. The BAR condenses a tremendous amount of information into a little window of time, and you need to be sure that you are functioning at your highest level. Resist the urge to party or take an unscheduled day off. Do not let one night of pleasure derail your core focus. You have gotten this far. Put in the work now, so you do not have to suffer the consequences later. Get your rest! There will be plenty of time to kill your brain cells after you have tackled the BAR Exam and have real reason to celebrate.
Cram the Exams - If you take nothing else from this post, take this piece of advice. Take every single written exam that you can get your hands on. More than mastering the material is mastering the art of taking the test. Double down on your test taking mastery by taking simulated exams. Most BAR prep classes offer simulated exams under real time constraints and conditions. The more familiar you are with the pressure and environment, the more prepared you will be to deal with the pressures of taking the real exam.
KNOW YOUR WORTH
In California, there are myriad factors that go into an insurance adjuster's and/or Defense attorney's valuation of a client's personal injury auto claim. As such, it is nearly impossible for a Plaintiff's attorney to accurately forecast what a Plaintiff is going to recover for an injury claim before it resolves via settlement or trial.
While I cannot list every nuanced point of analysis that goes into evaluating a Plaintiff's personal injury claim, some of the key factors are listed below:
Nature of the Injury and the Consequent Losses
Likability/Credibility of the Plaintiff
Type of Insurance Policy Implicated
Likability/Credibility of the Defendant/Wrongdoer
Venue where the Collision Occurred
Reputation of the Legal Representation involved
Although I've listed some of the key factors in determining a case's value, there are literally hundreds of other factors that come into play during this process. As a result, until more details related to the case are explored, it is nearly impossible to attach a value to a case at it's inception.
UNINSURED MOTORIST COVERAGE(UM)/ UNDERINSURED MOTORIST COVERAGE(UIM)
Uninsured /under-insured motorist (UM/UIM) coverage is optional insurance coverage that can be applied to an automobile insurance policy in California. This type of coverage pays when another driver is at fault but either (1) has no insurance; or (2) does not have enough insurance coverage to adequately compensate the injured person with respect to his or her medical bills and other related expenses.
As a practical matter, Uninsured drivers typically have fewer assets than drivers with viable insurance. The resultant effect is that someone injured by an uninsured or underinsured motorist may be unable to collect damages from the negligent driver for medical bills, lost earnings, property damage, pain and suffering and other losses after a car accident in California.
Although California does not require motorists to carry UM/UIM coverage, purchasing this coverage is highly encouraged.
TIME PARAMETERS GOVERNING INJURY LAWSUITS IN CALIFORNIA
To begin, all states set limits regarding the time strictures that one has to go to court and file a lawsuit after a person has suffered some type injury or harm at the hands of another. The laws governing these time parameters are referred to as a statute of limitations, and there are special deadlines depending on the type of case of lawsuit being filed.
Pursuant to California Code of Civil Procedure Section 335.1 (with certain exceptions), the statute of limitations period prescribed by the Code provides for a two-year time period from the date of the injury to file a lawsuit against the person(s) or parties that caused the injury. What should be noted is that if a person fails to file the personal injury lawsuit within this two-year frame, the Court will refuse to to hear the case unless certain exceptions apply. As such, the claim may be effectively time barred and, and along with it, the right to receive compensation for your injuries.
As mentioned above, there are some special exceptions to this Statute of Limitations time period, including but not limited to, cases involving injuries to minors or cases against governmental entities, so you should be sure to consult with competent legal counsel to make sure that your claim is not time barred.