HOW MEDICARE MAKES REPRESENTATION OF CLIENTS OVER 65 CHALLENGING.

            Representation of Clients over the age of 65 is challenging because the Attorney has no choice but to address Medicare liens.  If the Attorney fails to do so, the Attorney, personally, is potentially responsible for lien repayment.

            A party with a “lien,’ has a right to settlement proceeds as a matter of law.  Federal law provides Medicare with a lien for all amounts paid for medical treatment for which a third party is responsible.

            Addressing the Medicare lien is a complicated process requiring the Attorney to communicate with the Center for Medicare Services (“CMS”) by submitting a series of forms.  The process begins with the Attorney filing   The Attorney begins by filing a Proof of Representation. 

            CMS responds by submitting a Conditional Payment Letter detailing the medical services and the amounts paid by Medicare.  Often Medicare is able to obtain substantial discounts on the billed costs of services.  The purpose of the Conditional Payment Letter is to allow review so that unrelated services can be excluded.  The Conditional Payment Letter ends with a statement as to the amount of the lien required to be repaid Medicare.

            Because medical treatment can be ongoing, the services and amounts in the Conditional Payment Letter will change over time.  If unrelated services and expenses appear, the Attorney can request review to exclude these expenses from the lien.

            The Attorney reports any settlement in a Final Settlement Detail Report which also references the cost of attorneys’ fees, costs, and subrogation amounts.  Medicare will respond with a Beneficiary Conditional Payment letter reducing the lien by the amount of costs and legal fees and stating the amount to repay Medicare. 

            Sometimes Conditional Payment letter references an amount greater than the Client’s net recovery.  In these situations, the Attorney can submit a Waiver of Demand and Medicare will consider further reducing its repayment.

            This process can be both complicated and time-consuming.  In a recent case, the process took more than a year.  Fortunately, the end result was recovery for the Client. 

The Jury Just Returned a Good Verdict. What Happens Now?

     A jury just returned a verdict in a major case.  After taking a deep breath, the client asked "What happens now?"

    The successful end of a trial in a good verdict does not mean that a check is in the mail or even that the client will be paid.  It is only the next step in the process.  The Defendant only pays if the Defendant is willing to agree to the amount.

    The first step is that the judge has to be asked to enter judgment based on the verdict by the filing of a motion.  With a 1-10 day response time, this takes a minimum of 2 weeks.  If the parties disagree about the meaning of the verdict or the calculation of prejudgment interest, it can take longer.

    Following a verdict, the losing party has the right to file a motions to set aside the verdict or for a new trial.  These motions can be made as late as 10 days after the entry of judgment.  Again, this means more delay.

   Following a verdict, the winning party has the right to file a motion for attorneys' fees and a Bill of Costs.  Again, this can be done as late as 10 days after the entry of judgment.   Until this is done and resolved, the exact amount owed is undetermined.

   Finally, a party has the right to appeal.  This can be done as late as 30 days following entry of judgment or denial of the motions to set aside the verdict or for a new trial, whichever is later.

  Clients also ask when they can start executing on bank accounts or seizing assets for payment.  The earliest this can happen is 10 days after entry of judgment.  As a practical matter, it can take much longer.

     When a client asks "What happens now?,"  my answer is that there is still more work to be done.  A case is not over until its over.



   

   

Why Do Personal Injury Clinics Hurt Clients.

            A client’s case recently went bad because of 10 year old medical records from a prior accident showing the same injury.  The client had been involved in a small motor vehicle accident and the medical records were from “The Personal Injury Clinic”  who had a business relationship with the client's lawyer.   While I could not tell whether the Personal Injury Clinic had referred the client to the lawyer or vice versa, they definitely acted together in presenting accident claims not necessarily to the best interests of the accident victim who was their patient/client.  

In part because the client spoke English as a second language, I was able to confirm to my satisfaction that the client did not know about the medical records or appreciate what his lawyer was saying on his behalf.  In the end, this old case had involved small injuries compared to the client’s case with me.   At least in paper records, the lawyer and the clinic had pretended that the small injuries were more serious.  In the end, this destroyed the client's case in my office.     

            This client’s experience is not unique.  Attorneys, chiropractors, physical therapists and others buy lists from police departments of recent motor vehicle accidents.  Whether hurt or not, persons in these accidents are sent solicitation letters promising “no expense” medical treatment and legal representation.   People, particularly people who are not hurt, report this to me and share how they are offended by the aggressiveness of the solicitations.   These businesses are "claims mills" that make money presenting small claims in large volumes. 

People should be wary of clinics and lawyers that solicit business in this way.  The businesses are “accident mills” and are more concerned about maintaining the volume of their business instead of the individual consequences.  Both medical care and claims are presented in an assembly line manner listing the common injuries resulting from accidents, regardless of whether the injuries, in fact, were incurred.  The result is that, like this client of mine, false representations are made that follow the client the rest of his life.   In the end, as in this case harm results to the client should he be unfortunately hurt in a second accident.

This practice highlights a second concern if the motor vehicle accident results in small injuries.  Just because someone has been injured in an accident does not mean they should pursue a claim.  For example, if the injuries are minor, the medical treatment and recovery is routine, and out of pocket expenses have been paid by health or other personal insurance, the benefit of a small recovery can be outweighed by the accident victim being unfairly labelled in a later, more serious accident as being “sue-happy” and seeking “free money” or more seriously being falsely accused of being dishonest about his injuries.   

You have to play your hand smart.  See www.Junelawyer.com

Why I Appreciate Representing Clients

         One day last month, I was reminded about why I enjoy my practice and my clients.

One client that I had not seen in 25 years out of the blue walked into the office.  He had recovered from knee injuries caused by falling down an elevator shaft on a fish processor.  He was working. He was happy.  We talked for more than an hour about where our life paths had taken us over the decades.  He just wanted to say hello.

That afternoon, another client came to visit me.  He had, for the most part, recovered from injuries in a North Slope accident and wanted to brainstorm about career ideas.  We talked about our kids.  We talked about our wives. We talked about life in general.   Like the other client, he just wanted to say hello.

Both men made not just my day but my month.  See www.Junelawyer.com 

The July 31 Seward Highway Premier Alaska Tours Tragedy: What Can Victims Expect.

   On July 31, a Tour Bus collided with the rear of a stopped vehicle causing multiple collisions and shutting down the Seward Highway for hours.  One person died as the result of the collision and others were seriously injured.

 So what happens next?  Here is what I tell persons who call me immediately after highway tragedies like this.

1.   There Will Be a Homicide Investigation.

   Because the collision resulted in a death, there will be a formal homicide investigation.  This will include a complete accident reconstruction and eventually an Alaska State Trooper Report detailing witness interviews, drug testing of the Tour Bus driver, the electronic data from the Tour Bus and other evidence.  While this will provide the best starting point for a legal investigation, it will not be available for a minimum of several weeks.

2.  The Most Important Priority is Grieving and Obtaining Medical Care.

   The family of the gentleman who died has lost a loved one.  The most important thing at this point in time is to honor the loved one and start the grieving process.  This means providing for funeral services and being alone with family.   I encourage clients to do nothing for 30 days.

   For persons injured in the Tragedy, my recommendation is that they seek medical treatment.  I encourage them to contact my office after their acute injuries have stabilized.    

2.   This Is Not a Shared Tragedy.

   While the Tour Bus company or other victims may express concern and say otherwise, this is not a shared tragedy.  The Tour Bus driver was supposedly trained to recognize the hazards of the Seward Highway and failed to operate the Bus safely.

3.    There is No Reason to Have Contact with Tour Bus Company.

    Corporate spokespersons and insurance adjusters often "reach out" to victim families.  Other than the logistics of transporting the loved one home and returning personal effects, there is no reason to have any contact with these businesses.  (There may be "Medical Payments Coverage" or "Funeral Expense Coverage" which may pay transportation expenses home).  While some of this outreach may, indeed, be well-intentioned, a less attractive motivation is damage control and to assess what can be done immediately during a time of grief to reduce the business cost of the tragedy later.

4.    Other than to Stop Contact with Insurance Companies, there is No Immediate Need to Contact a Lawyer.

   For the same reasons that I have said that the most important priority is grieving and there is no reason to contact the Tour Bus company,  there is also no immediate need to contact a lawyer.    When clients call me, I share my respect for their loss and promise to call them in 30 days.  Victims of the tragedy should wait until they are emotionally strong enough to discuss their loss.

   There are exceptions to this:  Hiring a lawyer is one way to stop or control contacts with the legally responsible corporations.  The other exception is if there is person with first hand knowledge of the circumstances of the pilot's departure decision.

5.    You Will Need a Lawyer.

   In my experience, the legally responsible corporations grossly simplify claims and  attempt to resolve claims so as to discourage lawyer involvement. One way or another, the help of a lawyer will be needed.

     In any death, there are probate issues and the grieving family works through the process of administering the will, distributing personal effects, the financial impact of the sudden tragedy, and other issues.  A big issue is often life insurance or other death benefits to help the family adjust to their new situation.  This all will require legal help.

   Another issue is valuation of the claim.  This will be a function of the victim's financial situation, his family situation, including not just spouses and children but also other potential dependents like parents and friends as well as the ages of these people.  This becomes complicated quickly.  Just as one hires an accountant or realtor for taxes or sale of a house, a lawyer will be needed to address these issues.   Without a proper valuation of a claim, it is impossible to make an informed decision as to what to do.

   Finally, in cases involving cruise passengers, the cruise "ticket" (often found in an online contract) may raise legal issues.  For example, it may require the filing of a lawsuit within 6 months or require suit in a specific state.

     My last piece of advice in times like this is to remind callers that this is a complicated card game.  They need to play the hand smartly.  See www.Junelawyer.com.

Another Alaska Aviation Tragedy: What Happens When the Pilot Dies.

   There has been another Alaska Aviation tragedy.  On Friday, July 17, 2015, a Wings of Alaska flight crashed during an 18 minute flight between Juneau and Hoonah.  The pilot died in the crash with the 4 survivors seriously injured.   http://www.alaskapublic.org/2015/07/17/wings-of-alaska-flight-from-juneau-to-hoonah-goes-down-survivors-confirmed/ Newspaper stories include passenger statements about heroic, last second actions of the pilot. http://www.adn.com/article/20150717/4-survivors-airlifted-southeast-alaska-plane-crash-site-pilot-dead

   When a pilot dies in a crash, clients question the purpose of bringing a claim against the deceased pilot's estate.  Here is how I answer those questions.

   Absent certain exceptions, all claims or lawsuits are filed against the Airline.  This is the entity that sold the ticket.  This is the entity that made the promise of safe flight. This is the entity that purchased insurance to protect both itself and the pilot specifically from accidents like this. 

   Pilots working for airlines do not make flight decisions alone.  Every airline has an Operations Manual that controls how flight decisions are made.  The ground crew was as aware of the flight conditions as the pilot. 

  This crash arose out of a short flight under conditions of poor visibility.  Nothing prevented the airline from delaying the flight until conditions improved.  Nothing prevented the pilot from asking that the flight be delayed.  In the end, the pilot crashed into a "granite cloud,"  failing to see and avoid the mountainside into which the aircraft crashed.

  Under circumstances like this, the law imposes a duty on the airline to compensate their passengers for the resulting harms and losses.  You have to play your hand smartly.  See www.Junelawyer.com.

Another Alaska Aviation Tragedy: What Can Victim Families Expect?

   Eight Alaska visitors have died in the crash of a Pro Mech flight seeing trip to the Misty Fjords National Monument near Ketchikan, Alaska.  The flight was an excursion sold through Holland America cruise lines and operated by Pro Mech Air.  Both Holland America and Pro Mech have expressed the traditional messages of concerns we have become used to hearing in the news.  See http://www.adn.com/article/20150625/8-tourists-pilot-dead-southeast-alaska-plane-crash.

   The accident fits a general pattern of Alaska aviation tragedies.  In winter months, it is the scheduled airlines that experience accidents while facing adverse winter weather.  In the summer months, the risk is higher for flightseeing operations who have a short window of time for their business catering to Alaska visitors.

   So what happens next?  Here is what I tell persons who call me immediately after tragedies like this.

1.  The Most Important Priority is Grieving.

   Whether it is a mother, father, sister, or brother, each of the families has lost a loved one.  The most important thing at this point in time is to honor the loved one and start the grieving process.  This means providing for funeral services and being alone with family.   I encourage clients to do nothing for 30 days.

2.   This Is Not a Shared Tragedy.

   While Pro Mech and Holland America may express concern and say otherwise, this is not a shared tragedy.  On the one hand, each visitor paid for a safe flight/visiting experience, and knew nothing about the dangers of a bad weather day in SouthEast Alaska.  On the other hand, Pro Mech and Holland America were conducting a business and made the conscious decision to dispatch the flight.   With prepaid excursions, there is always pressure not to cancel because of weather.

3.    Other than Logistics, There is No Reason to Have Contact with Pro Mech or Holland America.

    Corporate spokespersons and insurance adjusters often "reach out" to victim families.  Other than the logistics of transporting the loved one home and returning personal effects, there is no reason to have any contact with these businesses.  (There may be "Medical Payments Coverage" or "Funeral Expense Coverage" which may pay transportation expenses home).  While some of this outreach may, indeed, be well-intentioned, a less attractive motivation is damage control and to assess what can be done immediately during a time of grief to reduce the business cost of the tragedy later.

4.    Other than to Stop Contact with Pro Mech/Holland America, there is No Immediate Need to Contact a Lawyer.

   For the same reasons that I have said that the most important priority is grieving and there is no reason to contact Pro Mech/Holland America, there is also no immediate need to contact a lawyer.  The investigation of the crash will be conducted by the NTSB and there is little that a lawyer can do at this stage beyond gathering information.  When clients call me, I share my respect for their loss and promise to call them in 30 days.

   There are exceptions to this:  Hiring a lawyer is one way to stop or control contacts with the legally responsible corporations.  The other exception is if there is person with first hand knowledge of the circumstances of the pilot's departure decision.

5.    You Will Need a Lawyer.

   In my experience, the legally responsible corporations grossly simplify claims and  attempt to resolve claims so as to discourage lawyer involvement. One way or another, the help of a lawyer will be needed.

     In any death, there are probate issues and the grieving family works through the process of administering the will, distributing personal effects, the financial impact of the sudden tragedy, and other issues.  A big issue is often life insurance or other death benefits to help the family adjust to their new situation.  This all will require legal help.

   Another issue is valuation of the claim.  This will be a function of the victim's financial situation, his family situation, including not just spouses and children but also other potential dependents like parents and friends as well as the ages of these people.  This becomes complicated quickly.  Just as one hires an accountant or realtor for taxes or sale of a house, a lawyer will be needed to address these issues.   Without a proper valuation of a claim, it is impossible to make an informed decision as to what to do.

   Finally, in cases involving cruise passengers, the cruise "ticket" (often found in an online contract) may raise legal issues.  For example, it may require the filing of a lawsuit within 6 months or require suit in a specific state.

     My last piece of advice in times like this is to remind callers that this is a complicated card game.  They need to play the hand smartly.  See www.Junelawyer.com.

Why Your Boss Is The Best Witness In Your Case

   Clients regularly ask me who would be the best witness in your case.  Without hesitation, it is your boss.   While your spouse or your friends may know you better, it is the boss that is the most powerful witness at trial.

   Here are the reasons why.

   An important part of any case is showing how each client is different from the liars, cheaters, and malingers of the world.  We all have heard stories about people who are hurt and think they have somehow won the lottery.  At trial, the defense lawyers will always suggest that the accident victim could do more.  The strongest response to arguments like this is for a client to share how he has gone back to work.  Having the boss as a witness destroys this argument.

   The boss also sees the client more than any other person outside his home.  If the client has ongoing pain symptoms, the boss will be able to share this information with the jury.  More important, the boss will be able to share how the client's works despite the pain because of his work ethic.  Once again, this eliminates the defense arguments that the client is not doing everything possible to respond to his injury.

   Finally, unlike a spouse, a relative, or a friend, the boss cannot be accused of being biased.  When spouses testify, the defense lawyers will always minimize their testimony as being predictable due to marriage.  The testimony of friends will be minimized in the same way.  But with the boss, the bias goes the other way.  If the client is not doing his job, the boss will have no choice but to let him go.  As a result, the boss' testimony cannot be questioned.

  Clients can be reluctant to involve their bosses in their case because they consider it to be private and are worried about drawing unfair attention to themselves.  But here is the kicker:  if the boss doesn't testify for the client, the defense and insurer will call the boss anyway.  In other words, one way or another, someone is going to talk to the boss about the case.

  You have to play your hand smartly.  See www.Junelawyer.com

Why Is There Good Reason To Question the Credibility of Physicians Hired by Insurers and Defense Lawyers to Conduct "Independent Medical Examinations"

    The neutrality and objectivity of physicians in the business of "independent medical examinations" for defense lawyer is often questioned.  This recent experience explains why.

     A client suffered a work injury and was required to be attend an "independent medical examination."  The physician, a 77 year old retired orthopedist wrote a 16 page report and concluded that an accident had "aggravated" a pre-existing condition justifying the need for surgery.  In a second letter written 1 year later, he repeated these opinions verbatim.

    Last week, the defense lawyers noticed his deposition to perpetuate his testimony for trial.  Before the deposition, he refused to speak to me because of concern over the "legal protocol."  During the deposition, he shared that he had met 3 times with the defense lawyer, had been provided with medical records generated after his examination, and had been provided with the report of another colleague also hired by the defense lawyer.

   The end result was that his opinion had magically changed:  the injury that he had previously said was "related" was now "unrelated."

   Is there any wonder why accident victims require legal representation?  You have to play your hand smartly.  See www.Junelawyer.com.

How Does Your Computer and Phone Betray You?

   Insurance lawyers have increasingly become interested in computer files and phones.  Why is that?

   It turns out that computers and phone files contain "Metadata," unseen computer files that provide information.  Let me give some examples:  Photo files will contain data showing both the time and, possibly, even the place where a picture was taken.  A Word document may contain a prior draft comments before deletions.  And, of course, phones will have a list of who you talked/texted and dates of your actions.

   What to do?  Nothing because you cannot change this. But, if you are going to play your hand smartly, you need to know this is out there.  See  www.Junelawyer.com

What Happens When the Person Responsible for Harming You Has No Insurance?

   Clients often wonder why lawyers seem more interested in whether there is insurance than the facts of their injury and harms.   If someone else is clearly at fault, why does insurance matter?  If there is no way for the lawyer to collect money to compensate for losses, there is little a lawyer can do.

   Here is a cautionary tale.

   A client fell and broke his hip in an unmaintained apartment building.  All buildings secured by a mortgage are required to have insurance.

  Besides being a landlord, the building's owner operated a business.  All successful business people have insurance.

 The building's owner appeared to own a boat and other properties.  Certainly, a successful businessman could pay losses even if there was no insurance.

  It turns out there was no insurance on the apartment building, something which we confirmed by filing suit against the landlord.  It also turned out that the business man's prosperity was only on the surface.  His boat and other properties were not owned in his name.  His tax returns showed that he had spent what income he had unsuccessfully day trading. Other business documents showed that he owed money to many people. Trying to collect money from this landlord involuntarily meant standing in a long line and hoping that, once one got to the front, there would be money that could be found or something that could be sold. In itself, this explained why the apartments had been allowed to become run down.

  The solution in this case was to negotiate a payment plan with the landlord that allowed him to keep doing business to generate the cash to make the payments and that contained quick remedies if he failed to do so.   So far, he has made the first payment and I am keeping my fingers crossed that he keeps his promises to make future payments.

  In motor vehicle accident cases, there is another way to attack this problem.  Most people buy Underinsured Motorist Coverage to protect themselves from those on the road who break the law and choose not to buy insurance.  If you do not have this coverage, you should because it is more important to protect yourself from the other guy than to protect the other guy from you.

   You have to play your hand smartly.  See www.junelawyer.com.

What Happens at Mediation?

           At some point, most, if not all, of my clients participate in mediation.   Mediation is a meeting with a neutral party, often a retired judge, who attempts to facilitate settlement discussions.  The majority of cases settle as a result of mediation.  Some do not.   In many ways, it is like a trip to the used car sales lot where both sides have the opportunity to kick the tires, look under the hood, and share their opinions as to what the car, in this case, the claim, is worth.   Even if unsuccessful, I believe mediation is important because it gives the client a clear choice as to whether it is wise to go to trial or not.  Some choices are easy.  Some are not.  

            While I encourage clients to participate in mediation, I discourage optimism that mediation will lead to settlement.  Otherwise, the client is set up for disappointment and a belief that, regardless of the fairness of the offer, the case must settle even for an unsatisfactory low amount.    I always point out the unlimited number of reasons why cases do not settle, including:

1.      The insurance representative does not have sufficient information to value the case.

2.      The defense lawyer has not done the work necessary to value the case.

3.      Either the insurance representative or the defense lawyer has an unrealistic view of the case and the other person is unwilling to change that view.

4.      The insurer recognizes the potential value of the case but, if a jury finds a certain way, the case could be worth much less.

Like any trip to the sales car sales lot, sometimes an insurer may agree to a mediation just to test a client’s willingness to go to trial.  This happened to clients of mine recently when an insurer stuck to an unreasonable valuation position for most of a day.

            At the same time, I emphasize that my clients must know their case in order to decide whether settlement offers are sufficiently fair to justify not going to trial. This includes knowing:

           

1.      The strong parts of the case.

2.      The weak parts of the case (I call this “understanding how your case can be lost.”)

3.      The unknowns in a case, e.g., how a jury determines non-economic loss.

4.      The maximum amounts of losses that the evidence will support in a jury verdict.

5.      How a jury can award less than the amount of losses requested.

6.      The possibility that recovery can be reduced by fault on the part of the client.

7.      The risk of attorneys’ fees if recovery is less than what was offered in settlement.

8.      The costs and fees in the case so that the net recovery can be calculated.

9.      The pressure on the client to settle their case that is in all mediations.  They must be psychologically prepared to leave if the offers are unfairly low.

In the end, it is my goal to have the important decision of settlement made in the same way other important decisions,  like buying a house, are made, i.e., with thought and the maximum possible information.   In the case mentioned above, my clients did their analysis and decided to leave the used car sales lot without settling their case.

            You have to play your cards smartly.  See www.Junelawyer.com

            

What Is An Unseaworthy Condition?

   Commercial fisherman regularly ask me to explain the concept of "Unseaworthiness."  If an unseaworthy condition causes injury or death to a crewman, the vessel and its owner are legally responsible.

   "Unseaworthiness" doesn't mean something that makes a vessel sink (although a boat that does not float is unseaworthy).  Instead, it means that there is equipment on the boat that is not reasonably suitable for its intended purpose or does not function.  An example is a davit that breaks or an emergency shutoff switch that does not shut off the hydraulics.

   Today's Anchorage Daily News contains a good example.  A freon leak on a fishing vessel resulted in a man being hospitalized and another crewmember dying.  Freon systems on vessels are not supposed to leak.  Therefore, this is an unseaworthy condition and the vessel is legally responsible for the losses of these men.

You have to know the cards in order to lay your hand smartly.  See www.Junelawyer.com

What Does A Lawyer Need to Properly Investigate a Potential Case

   I am always surprised at potential clients who call my office and, after a short 10 minute phone conversation, want to know whether they have a case.  Here is a list of things I review before making the big decision whether I am in a position to help someone by being their lawyer.

Police or Accident Report:  More than anything else, this will describe how the accident happened.  It will also tell when (important for statutes of limitation) the accident happened,  and what persons saw or witnessed the accident,

Medical Chart Notes:  These are the dictated records of the doctors and other health care professionals that explain the nature of the client's injuries.  These same records may also explain the history of how the accident caused the injury as well as whether the injury is "new" or an "old injury made worse."

Medical Billings:  No one will take a client's word as to what his medical bills are. All damages have to be documented.

Tax Returns, Pay Stubs, Social Security Earnings History;  If an injury affects work, it will be important to know the history of work.  These documents show a history of work.

Insurance Correspondence:  This provides a claim number and allows work to begin on a case immediately.

   While this list is not exhaustive, it allows me to begin a thorough case assessment.  You have to play your hand smartly.  See www.Junelawyer.com.

Are There Cases That A Client Can Handle Without A Lawyer?

   This issue came up 3 times this week:  A client called my office and asked whether he truly needed a lawyer to resolve his case.   While this can be tricky, the answer is yes, particularly motor vehicle accidents where there has been full recovery, i.e. medical treatment is over, and in which bills and other losses are below $10,000.  It is not cost effective for my office to handle these cases and, if we did, I am convinced that the client would receive less after deducting costs and legal fees.

   If you find yourself in this situation, here is what I tell accident victims to do:

1.  Collect all medical bills.  This can be most easily done by obtaining ledgers from the office of each doctor, chiropractor, physical therapist, pharmacy, etc.

2.  Collect all "chart notes."  Please note that this is different from medical bills or EOB's/

3.   Ask your employer for a letter documenting your missed work.

4.   Send this information to the insurer and say you are ready to settle your case.

Begin your "negotiations" with the insurer by asking for an amount well above what you believe is a fair amount. Insurance companies will say you are asking for too much money no matter what your first offer is.

   Here are the issues that most often trip up clients in this process.

1.    If medical bills have been paid by the client's motor vehicle insurer under a Medical Payments coverage, this has to be repaid.  This issue can best be addressed by confirming that the insurer will address this.

2.    For the same reason, if medical care has been provided without payment by a chiropractor through a "lien agreement,"  this amount has to be repaid.  This issue can also be best addressed by confirming that the insurer will pay this person directly.

3.    Again, for the same reason, if medical care has been paid by the health insurer, it will have to be repaid.  I recommend contacting the health insurer in advance and asking if any sort of discount will be given.

4.     Finally, Clients worry about being treated fairly and what is a fair settlement.  Other than starting high to see what the insurance company will do, I am unable to address that in this Blog.   However, in cases with these types of losses, it is better to negotiate a settlement than bear the cost and risk of a lawsuit.

You have to play your hand smartly.  See www.Junelawyer.com.

What Happens in a Psychiatric Medical Examination

    There are times when my clients are required to attend an "Independent Psychiatric Examination."   This does not happen often because I prefer to present my clients' losses in human as opposed to psychiatric terms.

     Here is what happens at a psychiatric examination.  After reviewing all medical records and the client's deposition, the psychiatrist or psychologist conducts their own "interview."   In that interview, the psychiatrist asks any question the psychiatrist wishes to ask.  Basically, it is a second deposition for the defense.  In a recent psychiatric exam, the "interview" lasted 6 hours with the first 30 minutes devoted to my client's childhood before the age of 5.

   Following the interview, the psychiatrist will prepare a report as to their opinions.  With the report not based on any objective data, the opinions of the psychiatrist are purely subjective.  The reports tend to be as verbose as the psychiatrist.

   With this background, clients should understand why it is that I choose to avoid psychiatric/psychological testimony if possible to present their harms and losses. Juries have trouble understanding this evidence in the first place and presenting your case based on this evidence entitles the defense to have the psychiatrist of their choice conduct the 6 hour interview.  The exceptions to this Rule involve cases of severe head injury or instances in which the client, himself, has been forced to seek psychological treatment.

   When the client is required to attend a psychiatric examination at the request of the Defendant, what do I do to protect the client.  The first thing I do is attend with the client.  Being present allows me to protect against abuses of the system, e.g., not allowing clients to take bathroom breaks, preventing improper questions into subjects like conversations between clients and lawyers.  The second thing I do is to make certain that the client knows that questions can be asked on just about any subject matter.  Finally, I make certain that the client understands their case and where psychological testimony will be important.  It is not unusual for this preparation to take mulitple meetings lasting several hours.

   The psychological examination is unpleasant for the client but the goal is always for the client to present themselves properly.  You always have to play your hand smartly.  See www.Junelawyer.com

Why Its Different Representing Alaska Natives Outside Anchorage

    I spent part of last week in Kotzebue, a small town of mostly Alaska Natives just north of the Arctic Circle.  The weather was clear and beautiful but cold.  The high temperature was 12 below.
    After a morning hearing, I spent the afternoon reconnecting with an old friend and client.  We sat in his living room and over the course of the afternoon shared notes on each of our children, our spouses, his business, my practice and everything else under the sun.  Sometimes the conversation was slow but we let the natural gaps in the conversation sit there.
     While visiting, there was a steady parade of people coming into his home.  Each person would knock briefly at the door and come in without waiting.  This is what one does when it is below zero outside.  Once inside, the person would ask a quick question and be on their way.  Sometimes, the person had no business and one woman came in simply to warm up on her walk through town.
     At the end of the day, my client served me dinner--salmon that he had caught during the previous season at his setnet site.  In towns like Kotzebue, you appreciate dinner invitations because you know that each dinner is a gift out of the subsistence gathered to last the entire winter.
     The visit reminded me of why I enjoy this side to my practice.  When one makes a friend in the smaller towns of Alaska, they are a friend forever and they will look out for you forever. As a lawyer, you owe them the same responsibility in return.

Sometimes Trial Is The End of The Case. Sometimes, Trial Is Just Another Event

    I just finished a 2 week trial in a motor vehicle accident case ending on December 20.  After 5 years during which the case went up to the Alaska Supreme Court, the jury came back with a $1,430,000 verdict. While the verdict was good news for the client, the trial was also an exercise both in how challenging it is for a client's case to go to trial and how many pitfalls lie in trial.

    The case involved a 25 year old man who was a motor vehicle accident victim in a T-bone collision on December 31.  When other people were celebrating the New Year, he was in the emergency room.  Within a month, he had been diagnosed with herniated discs in his low back.  Within 6 months, he had been forced to undergo disc replacement surgery.  These injuries caused him to develop herniated discs in his neck 4 years later.   He made 2 unsuccessful attempts to go back to work.

    The trial show the lengths that an insurance company and defense lawyer would go to avoid payment.  Over the last 5 years, these have been the defenses.

1.   It is impossible for persons to be seriously injured in a T-bone collision.
2.   The client's injuries must have been the result of misjudgments by his physicians who were trying to help him recover.
3.   The client's problems must be related to the medications his physicians prescribed to control his pain.
4.   Because the client happened to occasionally play poker, he must be able to work.

   During trial, the insurer actually called a biomechanicist to testify that the forces of a T-bone collision were less  than walking down stairs or lifting up a box.  The biomechanicists earns his living giving this testimony.
The insurer also called a retired neurosurgeon to also testify that serious injury was not possible.  The surgeon, working part time, has earned hundreds of thousands of dollars from insurance companies giveing testimony like this.

   After a hard 10 days, the jury came back with its verdict.  While gratified, I have seen juries return verdicts that were much less compassionate under similar facts.  Sometimes, they believe the hired gun witnesses.

    As for the future, my client is waiting to see whether the insurer will now appeal.

    You have to play your hand well.

Trial Postponement: Why This is Frustrating for both Clients and Lawyers.

    Last Thursday, the Judge continued (postponed) a trial scheduled to start today (Monday) for 45 days.  The Defense did not want to go to trial.  Because Judges are never reversed for postponing trials (and sometimes reversed for refusing to postpone trial for a party that claims not to be ready), the postponement was granted.

    For the client, postponement is another frustrating event in a long process.  Psychologically ready for trial, the Client must regroup and prepare to fight another day.  In the meantime, the stress and uncertainty of  resolution that only a trial can bring to an end, continues.

    For the lawyer, postponement presents a series of events as the lawyer stands down in his trial preparations while, at the same time, beginning preparations for the new dates.  These steps include:

    1.    Notifying each and every witness who has made room in their schedules to testify that the trial is being postponed.

    2.   Working with the same witnesses to reserve time on the new date to testify.  It is not unusual to deal with scheduling conflicts on the new date.  This all has to be worked out.

    3.    Reviewing the Lawyer's Calendar to address scheduling conflicts on the new trial date.   With the trial case having the highest priority, this means addressing new dates for other cases.

    4.    Continuing to work on issues pertaining to exhibits that are not resolved simply by the postponement of trial.

    5.    Reviewing the status of other matters that were being put on hold because of the now-cancelled trial.

No matter what happens, one has to continue to play their hand smartly.  See www.Junelawyer.com




   

Preparing for Trial: Always a Surprise

    I am preparing for a trial in 2 weeks.  The case is straightforward in that my client was injured in a motor vehicle accident and there is no question that it was the other driver's fault.  Still, over the last 3 weeks, there has been a constant parade of filings by the defending lawyer, identifying new witnesses with questionable connections to the case, accusing my client of dishonesty, and accusing myself of misconduct.

    Why is this?  Here are some possible reasons.

1.  While it may seem that everything should be resolved prior to trial, there are regularly loose ends that have to be addressed.  This is part of the challenge of going to trial.  You have to keep your eye on the goal and move forward no matter what issue is raised.

2.    With legal responsibility unresolved, the defense lawyer has nothing else he can talk about.  All he can do is make molehills into mountains and raise innuendo.  Unfortunately, sometimes this is an effective strategy because juries can be fooled.

3.    Different lawyers have different standards of professionalism.  In this case, the opposing lawyers practice is to do this.

So, what does one tell the client under these circumstances:  When it comes to trial, expect the unexpected, be prepared for unpleasant "surprises" from the other side, respond to the best of your ability, and put your best foot forward.

    As always, the bottom line is to play the hand smartly to the best of your ability.  For clients, this is advice more easily given than followed.   See www.Junelawyer.com