How does Mediation work in my Personal Injury Case?
August 31, 2010
In my experience with personal injury and car accident cases in the Dallas / Fort Worth area, it is highly unlikely that any case will advance to trial without the judge ordering the parties to mediation. I would suspect this is also true for other jurisdictions throughout the country. “Mediation” is an informal settlement conference. Mediation is usually held at the office of an independent third-party called a “mediator.” Although mediators are generally attorneys, it is not required that a mediator be an attorney. Some mediators also hold certifications, but that is also not generally required. Not all cases settle at mediation, and mediation is not necessary for a case to settle. The parties may settle a case at any time, whether before mediation, after mediation, or even during trial. The advantage to mediation is that it allows the parties to attempt settlement negotiations in a dynamic setting, while the parties are physically present and concentrating solely on the case at hand. Likewise, each party is required to come to mediation with full authority to negotiate a settlement. Another advantage of mediation is that a mediation is completely priviledged. This means that no communications or statements made at a mediation can be used as evidence at any trial or hearing. This allows the parties to be completely open with each other without the threat of having to answer for their comments in court. Additionally, the mediator cannot be subpoenaed to testify.
Mediations can take anywhere from a few hours for most cases, to a few days for the more complex cases. The parties will meet at the mediator’s office. The medaitor will usually start with a joint session where he/she will introduce the parties and give some general instructions. Then the Plaintiff’s attorney will go first with a brief opening statement, followed by the Defendant’s attorney. The parties and their respective attorneys will then break off into separate rooms called “caucuses.” The mediator will visit each caucus trying to get the parties to find some middle ground. The mediator will ask the Plaintiff to make some sort of settlement demand, and will also convince the Defendant to make some sort of settlement offer. Each visit by the mediator is designed to get each side to migrate toward a settlement. If a settlement is reached, then the mediator will draft a short “Memorandum of Settlement,” and ask that each side (and their attorneys) sign it. Once signed, the settlement is binding, pending receipt of the settlement check and a more formal settlement agreement to be signed. Even though the communications at mediation are priviledged, a written and signed mediation agreement is enforceable should one of the parties refuse to abide by the settlement.
Should my Car Accident Lawyer take a fee from my PIP?
August 10, 2010
I have many people ask whether my car accident lawyer is permitted to take a fee from my Personal Injury Protection (PIP). When you sign a contract to hire a lawyer for your auto accident case, the contract probably provides that the attorney’s percentage comes from “any and all” amounts that are collected. Technically, this would include PIP benefits. Whether a lawyer “should” take a fee from the PIP, however, is another question. Rest assured that many auto accident lawyers in the Dallas / Fort Worth area will take a fee from the PIP as a matter of general practice. There are auto accident lawyers who do consider waiving the fee from PIP as a courtesy, but that decision is usually made at the settlement stage of the case. It would be wise to discuss this matter with your lawyer and get an idea of how the lawyer generally handles this issue.
Personal Injury Protection (PIP) is insurance coverage that you can purchase through your auto insurance policy. In Texas, all auto insurance policies must provide for PIP unless the coverage is rejected in writing. The minimum amount of coverage in Texas is $2,500, although you can purchase more coverage if you wish. If you are involved in an auto accident, PIP will cover your medical bills as well as 80% of your lost wages, regardless of any fault on you. There are, however, scenarios in which PIP is handled differently on your auto accident claim, and could effect how your lawyer decides to handle the PIP.
Let’s say that you are involved in an auto accident that was not your fault. Your auto accident lawyer will not only make a claim against the other driver’s insurance company, but will also make a claim on your insurance policy for the PIP benefits. This is because, more often than not, the amount of the settlement offered by the other driver’s insurance will most likely not be enough to pay your lawyer, your doctors, and also net some money in your pocket. The PIP helps your auto accident lawyer settle the case by having more funds available to satisfy all the parties involved. This is because the other driver’s insurance does not get any credit for the PIP. For example, if your case is worth $10,000, then you would be able to collect $10,000 from the other driver’s insurance and still be able to collect the $2,500 in PIP benefits, for a total of $12,500. Whether your auto accident lawyer should take a fee from the PIP portion depends on many circumstances as well as the general practices of your lawyer.
Now, let’s assume that the other driver did not have insurance. If you had uninsured motorist covergae (UM), then your insurance company will pay the claim based upon what the uninsured driver would have been liable to pay under the law. In this sense, your insurance company will step into the shoes of the insurance that the other driver should have had. Your auto accident lawyer will, therefore, submit your case to your insurance company for PIP and UM benefits. However, now your insurance company gets a credit for the PIP benefits. For example, let’s assume again that your case is worth $10,000, and you have $2,500 in PIP benefits. In this case, your PIP will pay $2,500 and your UM will pay $7,500 (“new money”), for a total of $10,000. Therefore, your auto accident lawyer can justify taking a fee from the PIP because the PIP is actually part of the entire value of the case.
Should I hire a car accident attorney?
August 6, 2010
I have been getting many comments on my blogs stating that my website is very “informative and helpful.” I do appreciate the positive feed-back. Unlike other websites, I intentionally made my website more informative than the average car accident attorney website. In my many years of practice in the Dallas and Fort Worth area, one thing I have noticed is that clients do not want to be left in the dark when it comes to their rights. When I would visit other car accident attorney websites, they would come across as very “commercial” and fail to address the matters that this internet savy generation is seeking. People want answers, and I don’t mind providing those answers.
However, don’t make the mistake of substituting the information on my website with competent legal representation. My website and blogs are not posted for the purpose of helping people represent themselves. Rather, the information is posted so that clients can know the various stages of the process and feel more comforatble when, in fact, they do decide to hire an attorney.
For instance, let’s assume that you need to have a medical procedure done. You certainly wouldn’t want the doctor to operate on you without you knowing what the doctor is going to do. But at the same time, if the doctor does explain the surgery to you, that doesn’t mean you can perform the surgery yourself. Rather the doctor’s information helps “de-mystify” the process.
That is what lawyers should do: De-mystify the process for the client. But, at the same time, clients should not think that they can handle their cases for themselves without proper legal representation. When you are in a car accident, there are a great many legal issues that inter-play with each other. Rest assured that insurance adjusters, although not attorneys, are well trained in investigating and defending car accident claims. Therefore, when you choose to represent yourself in this situation, you are bringing a knife to a gun fight. You will unknowingly be doing your case more harm than good. Then, if you later decide that you need an attorney, you may have already done irreparable harm to your case that the attorney may not be willing to take your case at that point.
My website and blogs, although informative, only scratch the surface of the issues and legal matters involved in a typical car accident case. This is why an experienced car accident attorney is your best option when you are trying to protect and secure your rights.
Jury Duty – Part IV of IV
August 1, 2010
Now, let’s assume you are one of the “lucky” ones selected for jury duty. I will follow a typical case in Dallas / Fort Worth, Texas, although other jurisdictions are still very similar. You will be asked by the judge to take a seat in the jury box at which time you will be sworn in. The judge will then read some simple instructions pertaining to your duty as a juror such as not to discuss the case with anybody and not to do any outside research or investigations. The judge will then hand the case off to the attorneys for opening statements.
After opening statements, the evidence stage of the case begins. The jurors will hear testimony from witnesses, view photographs and other exhibits. Once all parties have presented all their witness testimony and exhibits, the judge will then deliver the “Charge of the Court” and additional instructions dealing with jurors’ deliberations. The “Charge of the Court” is the formal written instructions, definitions and questions that the jury will answer during deliberations. The jurors will also be instructed to select a foreman, whose job is to keep the deliberations organized and to make sure that the jury is abiding by the court’s instructions. After reading the Charge, the attorneys will deliver their final arguments.
Once the closing arguments are completed, the jury will be led out of the courtroom and into the jury deliberation room. The jury foreman will be selected and the foreman must then read the entire Charge again to the jury panel as a whole. Then the jurors will deliberate. In a typical Texas civil case, a verdict can be delivered with a vote of at least ten jurors (with a twelve member jury in district court), or a vote of at least five jurors (with a six member jury in the lower courts). However, the same jurors must agree on all the answers.
During deliberations, the jury is allowed to submit questions to the Court. This is usually a very tense moment as it tends to give the attorneys and the judge some sense of what the jury is thinking. However, questions dealing with the evidence will not be answered and the judge will merely respond that the jury must rely on their own recollection of the testimony.
Once the jurors have reached a verdict, they notify the judge and everyone reconvenes in the courtroom. The verdict is then read aloud by the judge and the jury is asked to confirm whether this is their verdict. If the verdict is less than unanimous, then either party can request that the jurors be “polled” in order to confirm that the verdict has been properly reached by the required number of jurors.
Thereafter, the jurors are released and are unusually encouraged to talk to the lawyers about the case out in the hall. Many lawyers find this very beneficial in that it helps them better understand their cases.