Pre-settlement loans are the scourge of plaintiffs’ lawyers for a couple of reasons. The first is that they take so much time—shepherding an application from beginning to end, working out details of the money transfer, and making it all happen in time to help the client with the financial emergency that they are having—it can easily add hours to a case. That wouldn’t be so bad, but for the second reason—loans are often an expensive waste of money for our otherwise deserving clients.
What is a pre-settlement loan?
A pre-settlement loan is a generic term used for money loaned to a client before they are paid from a case. Sometimes they happen when a client is still receiving treatment, sometimes they happen before a lawsuit is filed, and sometimes loans happen after a settlement or verdict is received, but before the money has been paid.
Who pays for a pre-settlement loan?
Lawyers are not allowed to loan money for a very simple reason: it can create a legal conflict of interest with our clients. If I loan a client money, and then we get a settlement offer on a case, I may want very much to accept the settlement offer, because it could mean that I get paid back. If the client doesn’t accept the offer, we may have to go to trial, with all of its attendant risks. Essentially, loaning money to a client creates a property interest in the client’s case, and the risk for the lawyer (and the client) is that the lawyer stops being objective, and has a very personal interest in resolving the case (perhaps for less than its value).
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INSURANCE COMPANY TRICKERY: BE CAREFUL WHAT YOU SAY
Posted on March 09, 2018 in Automobile Accidents
I saw a generic internet article about what not to say to your insurance company. It dealt with all types of insurance claims, but there are a few things it got right for auto claims. Here is what you should remember:
- Apologizing: be careful saying you are sorry after an auto accident. It is laudable to apologize if you are at fault, but just make sure you know that you are fault before you do. In court, the other side can testify that you apologized at the scene of the collision (or after). If there is any doubt, leave it to police, insurance adjusters, and lawyers to figure out.
- Injuries: when talking to the insurance company, it is usually best to limit your discussion about your injuries. The article mentioned that the word “whiplash” could make the insurance company suspect that you are faking your injuries. Any lawyer would recommend that you avoid discussing your injuries at all. You may need to explain it to your PIP adjuster when you submit a PIP application, but you should refuse to discuss it at all with the opposing company. This is especially true right after the accident—your injuries may not have fully realized at that point, and mentioning that you are okay could harm your claim.
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HOW TO PREPARE FOR YOUR TRIAL: DISTRICT COURT VERSION
Posted on March 07, 2018 in Automobile Accidents
If your cases has been set for trial, there are some things that you will need to prepare to be ready. What are you preparing for? Simply, to provide the best testimony possible to the judge. That means you need to be ready for the questions your lawyer will ask you, and you need to anticipate the questions that the defense attorney will ask you. These are the steps important for testimony, whether it is an automobile collision case, slip-and-fall, or any other type of personal injury.
- Contact your lawyer. Set up a time before the trial to go over your testimony. Our office will use a trial script to help you understand the questions we will ask. Based on our review of your file, including your medical records, our conversations with you, and your answers to interrogatories, we will draft the questions and what we think the answers are. Your job is to review those, make sure they are correct, and help provide as much detail as you can.
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WHERE DOES THE MONEY FROM MY CAR ACCIDENT SETTLEMENT GO?
Posted on March 05, 2018 in Automobile Accidents
When an auto case settles, or after the judge or jury give a verdict in your favor, the insurance company will send your lawyers a check. Your lawyers will ask your permission to sign your name to the check, and they will deposit it in an escrow account. The escrow account is one of the safest, most regulated parts of lawyering. Lawyers can lose their ability to practice law if they don’t handle the escrow account exactly right. It is a near-sacred duty to the client.
After that, the lawyer will need to disburse the money to everyone who is entitled to part of it. You can see a sample settlement and disbursement form here: Settlement & Disbursement (03-05-18). In general, the money goes three places: to you, to your lawyer, and to the other people (usually medical providers or health insurance companies) who are still owed money. Let’s run through a sample distribution.
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FAQ: WHAT TO EXPECT AT A PRE-TRIAL CONFERENCE
Posted on March 02, 2018 in Trial
We had a pre-trial conference in Cecil County earlier this week. As I was discussing with my clients what to expect, I was reminded that, as “old hat” as these pre-trial conferences are for me, most people have never been through the process. This is a good place to describe what they are all about.
One caveat before we start–there is some variation between the counties, and sometimes even between judges in the same county. Your lawyer should know (either by experience or by asking other lawyers with experience) exactly what to expect in your case. Here is a sample scheduling order for Baltimore City Circuit Court, which sets the pre-trial conference: Scheduling Order (02-24-18)
Some frequently asked questions:
- What is a pre-trial conference? A pre-trial conference is a time before trial where a judge (typically) can meet with the lawyers to make sure the case is ready for trial. It is also often a chance for the court to assist the parties to come to a resolution before trial.
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PRESERVING EVIDENCE WITH A SPOLIATION LETTER
Posted on February 28, 2018 in Automobile Accidents
Immediately after an injury, it is important to collect and preserve all the evidence you will need to prove your case. Trials can be lost because of a lack of evidence. Sometimes, a judge deciding liability may need to know where the cars came to rest, what the property damage looked like, or what the dashcam footage revealed. Sometimes that evidence is in the hands of another person, corporation, or governmental entity.
Enter the spoliation letter. This is the singularly most important step in evidence preservation. Without it, it is possible, even likely, that the evidence you need will be destroyed, often in the normal course of business. Security tapes are routinely recorded over every day, week, or month. Documents and photographs may be destroyed when they serve no further use. But a proper spoliation letter can not only help to ensure that evidence remains available, but when sent to a future defendant, it can help you in other ways if the evidence is destroyed. For example, a judge may rule that if evidence destroyed after the receipt of a proper spoliation letter, the jury can infer that the evidence was harmful to the destroyer’s case.
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GET OUT OF JAIL FREE
Posted on February 26, 2018 in Trial
It’s one of those things that most lawyers have had to deal with at one time or another in personal injury cases. The client (plaintiff or defendant), or an important witness, might be, as we call it, a “resident of the State.” That is, they may be in jail.
If the testimony is important for your case, you have the burden to get it. A judge may not be very forgiving if you did not do the legwork to arrange for the prisoner’s testimony. You don’t want to have to ask for a postponement unless it is absolutely necessary.
You’d think it would be a simple matter to get someone transferred from a jail to courthouse (after all, they probably took the reverse trip at some time in the past). Sometimes it is easy, sometimes it is not. How do you get them out of jail (however briefly)? File a writ of habeas corpus ad testificandum. A writ is a written command. Habeas corpus is a Latin phrase that means “that you have the body.” Ad testificandum is another Latin phrase which refers to oral testimony, usually before a court. Put it all together, and it is essentially a command that a person be released from jail for testimony at court.
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GETTING A TRIAL DATE
Posted on February 24, 2018 in Trial
Our district court clients often have questions about how long it will take for their cases to conclude. The real answer is always “it depends.” It depends on whether the insurance company offers a reasonable settlement and when; it depends on how congested the court’s docket is; it depends on the schedule of the parties, the lawyers, and the witnesses; it depends on how easy (or difficult) it is to locate and serve the defendants.
However, we can give some general guidance. Your case may vary, of course, but the process is usually this:
The first date at which to calculate the time to get to trial is from the time that we decide to file a complaint in the courthouse. We might file a number of reasons:
- The insurance company tells us that they will not make an offer because they think that their driver did not cause the accident
- The insurance company tells us that they will not make an offer because they think you were the sole cause of the accident
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