This area is intended to educate the reader on topics of general legal proceedures and principles. Check back frequently to see new topics of interest.
Contributing to the Community via the Internet More than 20 years of tort "reform" have convinced million of Americans that trial lawyers are not the heroes found in books. Atticus Finch, whose courageous defense of an African-American man falsely accused of raping a white woman in Harper Lee's To Kill a Mockingbird has inspired budding lawyers and judges for decades, is for others a mere fiction and not the embodiment of a trial lawyer.
Today the trial lawyer is lampooned on talk radio and painted in conservative literature as a greedy scoundrel, preying on the misfortune of others. It's time to change all that.
More than 30 years ago, Bates v. State Bar of Arizona changed the way many plaintiff attorneys found their clients. Prior to Bates, trial attorneys met clients through extensive social networks crafted by years of active participation in their communities. They had represented someone's sister, accountant, neighbor or friend.
After Bates many attorneys began to forgo these time-consuming networking and rainmaking efforts by offering their services directly to people who were injured. They began to advertise in newspapers, on billboards and, eventually, on television. This was wonderful in terms of marketing efficiency but, to many who were exposed to these advertisements, this approach failed to project a positive professional image.
Lawyer advertising in and of itself is not wrong. Curtailing or censoring commercial speech will not repair the image of the modern trial lawyer. The problem isn't that attorneys are using media to reach the public, it's how some of them are using media that perpetuates the stereotype of the "greedy trial lawyer."
After Bates too many lawyers began aggressive campaigns to increase their market share. Before long cities and towns across America became a cacophony of "In a wreck? Get your check!" billboards and TV ads.
As "lawsuit abuse" and "runaway juries" became household phrases and the news filled with stories of "frivolous lawsuits," the living counterpoint to these messages - the Atticus Finches who stand up to injustice and unfounded fears - became harder to spot. It's not that they weren't there; they just weren't as visible because they no longer used word-of-mouth marketing opportunities that community involvement once provided. Trial attorneys became disconnected from the people they served. Without this counterpoint too many Americans relied on the only images they had of trial lawyers - midnight television commercials, glitzy billboards, back-page ads in phone books - and tort "reform" won their hearts.
There is only one way to win them back: trial lawyers must again become part of the community. We must build relationships with our neighbors and introduce ourselves to those who do not yet need our professional help. Fortunately, making these connections has become easier than ever. By following new paths and treading again on old ones, the plaintiff bar can help America rediscover the trial-lawyer.
One of the best ways for trial lawyers to connect and build relationships with their local communities, members of the media and professional referral sources is to blog. In recent years blogging has evolved from writing simple online journals to providing business, legal and safety-related information, commenting on political, legal and cultural events and delivering important news to consumers. We hope through our blog to contribute to the community by educating, encouraging and most importantly building a relationship of trust based upon good and useful information being provided to the public.
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It is not uncommon to be upset at you attorney after the lawsuit is filed because such a long time passes between the time the lawsuit is started and any settlement or trial. In most states, the other person's insurance company owes you no duty to settle quickly. Your case can be settled before trial or drag on long after the trial is over. The insurance companies know that you are in a hurry to settle your case, and uses that knowledge to try to get you to settle for less. Here is a partial list of some of the things that can happen to slow down your case:
Discovery
This is the insurance company's opportunity to "discover" everything about you and the accident or incident. You will get a lot of written questions to answer under oath called a Deposition. You will be expected to produce documents and medical records, plus admit or deny specific written statements put to you. You and your attorney will need to gather up all the medical records, bills and other documentation of your injuries. Some of these must be obtained in a specific way to make them admissible at trial. This often takes time and money.
Depositions
You will be asked questions under oath, with a court reporter trying up every word you say. The insurance company's lawyer will ask you in great detail about your injuries, your medical history, the accident itself and your treatment. You will likely be subjected to grilling over the smallest of details.
Motion Hearings
The insurance company lawyers may have what feels like an endless capacity to file motions and go to hearings on motions. Some of these motions are unimportant to you, but some may be critical to your case.
Mediation
Many courts are forcing lawyers to mediate or arbitrate cases prior to trial. Some courts won't even give you a trial date until you do so. Mediation is typically a settlement conference without the formalities of court. A neutral party will try to help the parties reach a middle ground. It's not usually "binding" - meaning the parties are stuck with the result-unless the parties reach an agreement and write up a settlement agreement.
Arbitration is a different breed. It's often a binding "mini-trial" of the case in front of an arbitrator or panel of judges who listen to an informal presentation of the matters involved in your case.
Trial
If your case doesn't settle, it must go to trial, where six or twelve strangers will decide what your injury is worth.
Trials are scheduled on the court's schedule, not the lawyers' schedule. Cases sometimes take years to be scheduled for trial, especially in some major urban areas. Having a case that is two or three years old before going to trial isn't unusual.
Once you have a trial, your case may not be over. There may be an appeal and further motions and hearings.
Collection Issues
You may also have difficulty collection from the insurance company or the person responsible for you injury. The insurance lawyer will have to have a check or draft issued by the company. And before they send you money, you'll be required to sign a release document and file some sort of dismissal motion. These things also delay payment. Once the money comes in, your lawyer will have to run the check through his/her trust account. If it is an out of state check, there will be another delay of a week to ten days before the funds are disbursed. And your attorney will be deducting litigation expenses such as deposition fees, transcript fees, filing fees, service of process costs, medical records costs, costs involved in documenting medical bills, costs of hiring expert witnesses, costs of paying treating doctors to testify, subpoena charges, lawyers fees, and any legally-required medical bills or liens.
Litigation can eat up a lot of time and money. Settlements after litigation can be very disappointing after spending years in battle. Sometimes it is better to settle before trial for less than to go through the process and end up with a small settlement or perhaps a bad result at trial.
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Having your deposition taken is one of the most terrifying parts of lawsuits for most people. Consider these tips for making your deposition experience less painful:
Dress for your deposition the same way you'd dress for trial. The person asking the questions is sizing you up, trying to figure out how presentable you'll be to a judge or jury.
If you need a break, ask for one. In most states, you're allowed to take a break from questioning when you need one. You should discuss the rules on this with your lawyer before the deposition begins.
Take your time. Think about the question you're asked before answering it. Pause before answering. This is not a timed event.
Don't volunteer any information. The person asking the questions in not your friend and you don not need to help him/her discover other areas to ask you questions about. Say as little as possible. Answer only the question asked and nothing more. Do not be untruthful, but do not add anything extra.
Tell the truth. Assume the person asking the question already knows the answer. Depositions aren't just to discover information, but to lock in testimony or find ways to discredit you at trial. Any inconsistency may burn you later when you're in front of a jury.
Keep your answers short. Your best possible answers are short ones, such as "Yes", "No", "I don't know", "I don't remember", and "I don't understand the question". It is best to limit your answers to the information that is specified.
Don't argue with the person asking the questions. Your attorney will be in the room with you and can make any proper legal objections to the questions.
Be careful what you say on breaks. If the other lawyer or insurance adjuster is present, anything that you say may be asked about later when you are back on the record.
If you are asked a question that calls for you to list things or give a detailed explanation, answer fully. In many cases, you may be asked to describe all your injuries or to list all the activities you can no longer perform after the accident/incident. You should list everything fully, and end your response with something like "and that is all I can think of at this time" or "and that is all I remember at this moment". Otherwise, when you add something later at trial, you might look deceptive or worse.
Be prepared to describe you injuries and pain. What kind of pain do you have? Is it constant, sharp, dull and constant? Does it ever go away? Where does it hurt? On a scale of 1 to 10, how would your rate your pain?
Be wary of the question "Are you feeling better today?" If you answer, "No", it raises the question as to whether all that medical treatment you received was reasonable or necessary. If you answer, "Yes", then perhaps your case is only a mild injury and isn't worth a lot of money. Obviously, you are feeling better today (at the deposition) than at the time the firemen were using the "Jaws of Life" to separate your body from your car prior to taking you to the hospital. You should say so. But if you are still hurting, you need to make that clear too.
Be careful answering questions about time. If you know the exact time something occurred, say so, but be prepared to say how you know the exact time. In all other cases, use the works "approximately" or "about". Otherwise, you may look deceptive later if it turns out that some other witness or document shows a different time.
Don't guess. If you don't know the answer, say so. Don't be ashamed to admit lack of specific knowledge. If you're asked to guess, and your lawyer lets you answer, be sure to state that you're guessing or that the answer is approximate.
Always remember that the person asking the questions is not your friend, but may have a strong influence on whether the insurance company settles your case or pushes you to trial. So be polite and respectful.
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The South Carolina Senate has apparently concluded that even if it can accept $700 million in stimulus bill funds under the State Fiscal Stabilization Fund , those funds will be tied up in litigation so long that they will do no good for critical needs now.
Unless Governor Sanford accepts the stimulus funds this week, the Senate Finance Committee today talked about cutting $103 million from health and human services agencies (not counting multiples of that in federal match dollars), $162 million in public school spending, $44 million in higher education funding and $39 million in law enforcement and public safety agency budgets.
Please call the Governor Sanford's Office and let him know that he should accept the federal stimulus funds to preserve health care and supportive services for the poor and those with disabilities, keep teachers in the classrooms and maintain public safety. Call him at 803-734-2100
-- South Carolina Fair Share 2001 Assembly Street - Suite 107 P.O. Box 8888 Columbia, SC 29202 803-252-9813
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"We can no longer ignore improper business practices of health insurers who decide to play by their own rules without regard to patients or the legitimate costs required to care for them," is the quote from Dr. Nancy H. Nielsen, president of the AMA. The AMA is claiming that the two insurance providers have short changed the doctors of out of millions of dollars of out of network healthcare.
Several insurers, including Aetna have already agreed to pay millions in settlements to the NY Attorney General's investigation in this matter; however none of that money is going towards restitution for the physicians lost wages. This money has been set aside to create a new database to replace the one run by Ingenix, a UnitedHealth Group unit that is known to be problematic.
The Ingenix systems is being accused of skewing data that is collected on what is considered "reasonable and customary" to pay physicians who do not participate in their networks.
Cynthia Michener, a spokeswoman for Aetna, said her company is "disappointed the medical community has chosen to litigate on top of already pending consumer litigation on the topic."
She added: "Both members and providers cannot be paid for the same claim under these cases. Ultimately, increasing health care costs increases the number of uninsured and the cost of health care for everyone."
I guess one need's to wonder if the insurance companies had been responsible to begin with if they would have felt the need to release in a statement that they "WILL" be passing on that cost to the doctors and patients. They will need those millions of dollars that weren't paid to the doctors for the legal fees, and PR to remind us how much we need "Big Insurance" to take care of us, right?
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SCAJ responds to introduction of "tort reform" legislation (H. 3489) in the S.C. House
Legislation would strip away fundamental rights, hurt small business, protect special interests
COLUMBIA, SC - South Carolina Association for Justice (SCAJ) Executive Director Mike Hemlepp released the following statement on S.C. House Bill 3489, which was introduced today (Tues., Feb. 10, 2009) in the S.C. House of Representatives:
"Speaker Bobby Harrell has worked tirelessly to correct our state's current economic difficulties and we all respect him for his service. However, this proposed legislation will not produce positive results for our state's business climate. In fact, it will do the opposite.
"Thousands of families in South Carolina are on the verge of losing their jobs, their homes and their way of life. In many cases, it is only the protection of the law that prevents them from losing everything. When innocent people fall victim to code violations, bad judgment and deceptive trade practices, the law provides a safety net at a time when they are most vulnerable.
"This proposed legislation would strip away fundamental rights from citizens in order to protect special interest groups from accountability for their misdeeds. These special interest groups pretend to care about small business when, in fact, this bill is simply a ruse to satisfy the greed of Wall Street millionaires with virtually no ties to our communities.
"SCAJ urges a bipartisan effort to protect our system of civil justice by opposing this unwise legislation."
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A deposition is a disclosure device that can be done orally or upon written questions. Like all discovery devices, it is intended to be very broad to the extent that "there shall be full disclosure of all matters material and necessary in the prosecution and defense of an action ..." There are many reasons individuals are get deposed. Some are non-controversial and others are controversial; such as:
- Each side gets to see and hear the other witness.
- It helps the attorney gain some sense as to how that witness will come across at the time of trial.
- Each side gets a change to learn things they don't know and confirm things they believe to be true. This helps limit or control what will be needed for further or additional investigation.
- Legal professionals get to look at injuries which are alleged.
- Each side's version of the event in question is detailed.
- It aids in determining whether a summary judgment motion can be considered or ruled out.
Oral depositions are unique compared to all other discovery devices mainly due to the fact that they are live events. All other discovery devices produce a result which is for the most part attorney authored and choreographed. The following is general advice which we provide to our clients as they prepare for their discovery deposition.
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