Paying Back Medicare After a Lawsuit

Medicare LiensMedicare recipients who file personal injury lawsuits need to be aware that by law they will have to pay Medicare back from their judgment or settlement. Unlike cases where private health insurers seek repayment, cases involving Medicare liens offer lawyers very little (to no) wiggle room in negotiating the liens down. Medicare’s lien is often referred to as a “super lien” for this reason, and due to Medicare’s ability to seek repayment not only from the plaintiff, but also the defendant — even if the defendant has paid a settlement to the plaintiff. Medicare can even seek double the amount of its lien if it is not reimbursed. Accordingly, defendants have a particular interest in ensuring that a plaintiff’s Medicare lien is properly resolved. While calculating and resolving Medicare liens in most personal injury cases is a straight-forward and simple process, in many others lawyers will run into unresolved, unclear, or downright unfair legal issues which could drastically effect their abilities to settle the cases at all.

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Suing an Attorney for Malpractice is Harder Than You Think

Sue an AttorneyLegal malpractice cases are particularly difficult and expensive to pursue. Aside from the inherent difficulty in finding an attorney who accepts legal malpractice cases, the plaintiff essentially needs to prove two cases in order to win: (1) the malpractice case against the lawyer and (2) the underlying case in which the lawyer committed the malpractice (to show how the case would have resolved had malpractice not occurred). Sometimes, the malpractice will be glaringly obvious, such as a missed statute of limitations. Often, it will be more of a gray area, both as to whether malpractice occurred and whether it had any significant impact on the outcome of the case. Before you assume that you have a legal malpractice case against your attorney, consider the numerous obstacles you will need to overcome.

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Lawyer Win/Loss Records — Why You Can’t Find Them

Lawyer Win LossI’ve been asked on more than one occasion where plaintiffs can look up the win/loss records of lawyers. Usually this is in conjunction with them initially hiring a lawyer or thinking of switching lawyers, the thought being that this would be an excellent screening tool in making their selection. The problem is that no such records exist. While this might sound surprising in the age of the Internet and online court records, there are several good reasons why such records are not maintained, and why they would not be particularly useful even if they were.

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What Happens If I Lose My Lawsuit?

Losing Your LawsuitWhen a plaintiff loses his lawsuit, whether by summary judgment, a directed verdict or a jury verdict for the defense, he or she is probably wondering “what happens next”? Can I get a new trial? Can I appeal? Will I have to pay anything? As with most legal issues, the immediate answer is “it depends”. One thing is certain: you have an uphill battle, even if there is a chance of changing the outcome.

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Loss of Consortium Claim — Worth the Bother?

Loss of Consortium ClaimLoss of consortium claims are treated as an afterthought by most personal injury lawyers. While they are legitimate claims, their value usually pales in comparison to the primary plaintiff’s claim (and often add no real value, for reasons I’ll discuss below). Unless your case involves an injury affecting sexual function, or has caused such a severe strain on your marriage that you have needed counseling, it is worth asking whether a loss of consortium claim is worth bringing at all. Most lawyers will automatically include a consortium claim unless instructed otherwise, so you should initiate a genuine discussion regarding the value of such a claim during your first meeting.

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When a Defendant Admits Fault, That’s Only Half the Battle

Defendant Admits LiabilityDon’t start celebrating a victory in your personal injury case just because the defendant admitted being at fault (admitted liability, in legalese) for your accident. Plenty of “admitted liability” cases still go to litigation, or even to trial. This is because proving fault is only half of your burden in a standard negligence case. While it’s definitely a positive to not have to prove half of your case, it does not mean that the defendant has agreed to pay you everything you think you deserve.

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Can I Settle With Just One Defendant?

Settle With One DefendantIf you have sued more than one party in your personal injury case, you’re probably wondering whether you can settle with one of them and still proceed with the lawsuit against the other(s). Such an arrangement could let you have your cake and eat it too — you get money now while still preserving your right to go to trial. The short answer to this question is “yes”, there is no legal impediment to you settling with just one defendant. Of course, this being a legal issue, the short answer doesn’t begin to address the complexities involved in such an arrangement.

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Weight Gain After An Injury

Weight Gain After An InjuryAs if suffering an injury as a result of someone else’s negligence wasn’t bad enough, many plaintiffs also find themselves gaining weight due to restrictions on their activities, depression, or both. Statistically, two thirds of the U.S. population is already overweight, so the odds are good that most of them were already struggling with this issue prior to their accidents.

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Want to Settle Your Own Accident Claim? Part 3 – The Demand

Settle Your Own Accident Case Part 3Having decided whether you should try to settle your own accident case (Part I) and gone through the preparations and document gathering needed to prepare your demand (Part 2), you should now be ready to draft your settlement demand letter. This will take some time, and you will need to review and refer to many documents, particularly your medical records, so don’t expect to knock this out in just a few minutes.

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Want to Settle Your Own Accident Claim? Part 2 – Prep Work

Settle Your Own Accident Case Part 2For those of you who read Part I of this article (you did read Part I, right?) and decided that you still want to try to settle your own accident claim, here are some suggestions for how to proceed. Always keep in mind that your attempt to settle may fail and you may wind up having to hire a lawyer to sue the defendant. Therefore, you want to be sure that you don’t do anything which may damage your case to such an extent that no lawyer will want to take it after your settlement attempt.

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Want to Settle Your Own Accident Claim? Part I – Should You?

Settle Your Own Accident CaseMany people involved in accidents which give rise to personal injury claims wonder if they should try to settle their own case before hiring a lawyer. Will they personally recover more money by negotiating with the insurance company directly, thereby avoiding paying attorney’s fees and costs? Being a lawyer, of course I can’t give a straight and simple answer to this question. It’s not because I don’t want to. It’s because there are a lot of factors which affect whether your case is one which can be reasonably settled without hiring a lawyer. So, instead of a simple (and therefore, wrong) answer, I’ll discuss the various issues which should affect your decision. In Part 2, I’ll suggest how to proceed should you decide to “go it alone.”

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How to Answer Interrogatories

How to Answer InterrogatoriesIf your case goes to litigation, you will need to answer interrogatories, usually within the first few months after the lawsuit is filed (others can be served later in the case). Interrogatories are written questions from opposing counsel — part of the discovery process — designed to give him basic information about you and your case. They must be answered in writing and under oath (notarized), and returned to opposing counsel within 30 days.

While different lawyers have different methods, it is fairly common for plaintiffs’ lawyers to mail their clients the defendant’s interrogatories with fairly limited instructions on how to answer them. This is because the lawyer plans to tweak and modify your answers before preparing them in final form for your signature. So, many times plaintiffs will receive them with only the vague instructions to “answer as best you can” and return them to the lawyer. To save you some time and anxiety when the time comes to answer interrogatories, here are some basic instructions on how to answer them.

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How To Testify At Trial

How to Testify at TrialEven though most plaintiffs will never go to trial, the thought of having to testify in court can be a source of great anxiety. Even if you’ve given a deposition in your case, you will find testifying at a trial to be whole new experience. Aside from the additional pressure of being in a courtroom, the purpose and the logistics of trial testimony are completely different. Your deposition was a broad inquiry conducted by opposing counsel, designed to inform him about your case. Your trial testimony, on the on the other hand, is a focused effort by your own lawyer (subject to opposing counsel’s cross examination) to present your case to the jury in the most favorable light possible. This changes not only the way you prepare, but also the importance of how you present yourself.

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Can I Fire My Lawyer? Yes, But You May Still Have to Pay Him

Can I Fire My LawyerDespite having a written contingency fee contract with your lawyer, you can fire him at any time. However, depending on your reasons for firing him, you may still owe him a fee. In most jurisdiction, though not all, if you do owe him a fee, it will be based not on your contingency fee contract, but rather on quantum meruit (meaning “how much is merited”). Depending on when you fire your lawyer during the litigation, this can range from a relatively small sum up to the entire percentage you agreed to in the contingency fee contract (in a few jurisdictions it can even exceed the contracted amount). If you hire a new lawyer after firing the old, there are circumstances under which you could wind up paying a double attorney fee. So, before you fire your lawyer, consider the odds of having to pay him a fee, how much that fee might be, and how this will affect your overall recovery in the case.

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Letter of Protection — Delay Medical Bills Until Settlement

Letter of ProtectionNot every personal injury plaintiff has health insurance. Those who are involved in automobile accidents may have PIP or med pay coverage to pay medical bills, but these benefits are often not enough to cover all necessary medical treatment. These plaintiffs are presented with a catch-22: they could pay for the medical care they need if their lawsuit settles, but they can’t prove their case without first getting medical care. This problem can often be solved through a letter of protection (LOP), which is not actually a letter at all, but rather a contract between you, your lawyer and your medical provider which allows you to get the treatment you need in exchange for a promise to pay your provider directly from your settlement funds.

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How to Choose a Lawyer – 2 Revealing Questions To Ask

how to choose a lawyerUnless you receive a referral from someone you trust, choosing a lawyer for your personal injury case can be one big crap shoot. Fancy ads or a nice office tell you more about a lawyer’s business acumen than his competence and skill as an attorney. There are plenty of “successful” attorneys out there making money hand over fist by running a “settlement mill” practice, where the individual clients do poorly, but the attorney does fine due to a “volume” business model. Asking the right questions can help you avoid these mills.

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Attorney Costs — Reviewing Your Own Lawyer’s Bill

attorney costsCosts are the expenses your attorney incurs which are directly attributable to your specific case. Almost all personal injury attorney fee contracts require that these costs be reimbursed from your share of the recovery, i.e., the money left over after your attorney’s fees are deducted. Therefore, every dollar that you can save on costs is a dollar that goes in your pocket. Most attorneys are diligent at maintaining a running list of your costs (though some costs won’t appear until your attorney receives and pays certain bills, so there will always be lag on some items). The two times you absolutely need to review the costs in your case are: (1) right before you agree to a settlement and (2) after you receive the settlement check and your attorney provides you the final accounting in your case. The pre-settlement review will help you avoid a rude surprise after it’s too late to stop the settlement, and the post-settlement review is to verify that the costs haven’t changed significantly from earlier.

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How to Give a Deposition — 5 Deposition Tips

How to give a depositionUnless your case settles immediately, the odds are pretty high that at some point you will have to give a deposition. Depositions are not fun for anyone (even lawyers don’t like having their depositions taken), but there are some tips that can make your deposition go smoother and keep you from hurting your own case. I hope that you already know that you shouldn’t lie in your deposition (it is under oath, after all), so I left that piece of advice off the tip list. Hopefully, your lawyer will meet with you before your deposition and cover all of these tips, but if you don’t feel like waiting for that meeting to learn how to give a deposition, this article is for you.

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Jury Trial Crisis — Why So Few Cases are Going to Trial

Jury Trial Crisis -- Why So Few Cases are Going to TrialThe Florida Bar recently released the results (pdf warning) of its research into the declining number of jury trials in America. It is a phenomenon which is affecting both civil and criminal jury trials, for somewhat different reasons. I’m only going to discuss the findings as to civil trials, as that is more relevant to this site. While the causes cited in the study for this decline in jury trials are mostly based on assumption and speculation, my own experience leads me to believe that they are probably accurate. The danger presented, especially in civil cases, is that the number of jury trials will continue to shrink unless some type of corrective action is taken. The threat of the jury trial is only viable as long as there are lawyers both able and willing to carry it out. As this threat diminishes, so too does a plaintiff’s ability to achieve any sort of justice.

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Something You Can (and Should) Do That Your Lawyer Cannot

There are few things that you, as a plaintiff, can do that your lawyer cannot. One notable exception is directly communicating with a defendant who is represented by counsel. Your lawyer is prohibited from this form of communication by ethics rules, and I absolutely do not recommend you engage in this form of communication, either. However, the ethics rules also prohibit another type of communication by lawyers which I highly recommend that you, as a plaintiff, engage in. That is the subject of this article.

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Why Did the Defense Attorney Ask Me for That?

The discovery process can make you, as a plaintiff, feel like you are the one on trial. In a very real way, you are. When you file a personal injury lawsuit, you open yourself up to any questions and requests for documents and other items which are reasonably calculated to lead to admissible evidence. Note that I did not say that the question or production request must result in admissible evidence in and of itself. As long as the discovery request could reasonably lead to admissible evidence, you must comply with it. The “scope of discovery” is far more broad than the bounds of admissibility.

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Why Won’t Any Lawyer Take My Case?

lawyer rejecting caseIf you’ve called several lawyers about handling your personal injury case and you haven’t found one who’s interested, it’s usually due to one of three reasons. First, your case sucks. Second, you want to sue someone who local lawyers don’t want to sue. Third, your case involves an area of the law that few lawyers want to deal with. Unfortunately, many lawyers will not give you a reason, or at least the real reason, why they don’t want to take your case. Hopefully, after reading this, you can figure it out for yourself, and decide whether your case is still worth pursuing.

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Whose Depositions Should You Attend?

As a plaintiff, you know that you will be required to submit to a deposition by opposing counsel. If you are married, it is likely that you plan to attend your spouse’s deposition as well, as that is often scheduled for the same day as your own. Beyond that, you probably don’t plan to attend any other depositions in your case. Most lawyers will not encourage you to attend other people’s depositions — but maybe they should. As a named party in the lawsuit, you have the right to attend any and all depositions in your case. The rules of sequestration of witnesses (keeping witnesses from sitting in on each others’ testimony to avoid collusion) do not apply to you. So, why would you want to attend anyone else’s deposition, and whose depositions should you attend?

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Seven Deadly Sins for Plaintiffs

You may not think that the seven deadly sins have anything to do with your lawsuit. Before you get nervous, know that I’m not a religious person and I’m not going to preach to you. Rather, I appreciate the simplicity of a defined “code of conduct”, as it makes it easier to recognize when you’re screwing up. So, I decided to take some widely known (and therefore, easier to remember) “sins” and use them as a warning to plaintiffs. I’m not trying to save your soul, just your lawsuit. Commit the following sins and your case will pay the price.

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Gap Insurance: What is It and Who Needs It?

Gap insurance, also known as “loan/lease coverage” or “loan/lease payoff coverage”, is a type of automobile insurance coverage that protects you if your car is totaled while you are upside down on your car payments. It supplements your collision and comprehensive coverages by paying up to a certain percentage (often 25%) more than your car’s fair market value in the event your car is totaled and you owe more on it than it is worth. If your car is paid off, or if it is worth more than what you owe on it, you don’t need gap coverage. Otherwise, you do. The good news is that it is a fairly cheap coverage.

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