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.