Um...well...ah...

Very early in any attorney's legal career (let's say, oh, about 30 seconds after announcing one's intention to go to law school), friends, family, coworkers, long-lost relatives, hobos and anybody that can speak, write or otherwise communicate will seek to extract nuggets of legal advice and tips. These individuals the young attorney or attorney-to-be comes in contact with may or may not even been in the same jurisdiction (each State has its own laws). It's true that in law school we learn the basics (sometimes more) of just about every area of law out there. It is also true that the Bar exam tests of a wide variety of legal topics. However, not every lawyer out there can answer every legal question that arises.

While there are many, many lawyers out there classified as "general practitioners," and while anybody with a law degree could conceivably research and represent you for your particular problem, it is important and often wise to choose an attorney that focuses or even specializes in the particular field. It's kind of like with doctors: you wouldn't go see a podiatrist if you needed brain surgery performed. You may think you are asking me, a personal injury trial lawyer, "I want to leave this piece of land in my family when I die and provide for my great grandchildren as well. But, I Googled some stuff and heard about the Rules Against Perpetuities and wonder if you can tell me more about that and if it applies here?" In reality, what you are really asking me is, "Can you please refer me to an attorney that knows about this particular estate law issue since you haven't even thought about the Rule Against Perpetuities in several years?" I'll be happy to oblige your request.

When you are presented with some sort of legal issue, and we all are from time to time, make sure you find an attorney that can diligently, competently, and zealously represent you for the matter. It's also important that you find an attorney with the experience necessary to help you navigate the nuances of your particular case to ensure the best possible result for you.

From Red to Green

My mother repeatedly asks where these blog posts originate from. Always a "smarty-pants," I say that they start with an idea, followed quickly by answering the following question: Will this get me fired? Hence the conspicuous absence of postings over the last week. Last week I was on the road quite a bit (go ahead...it's okay to make your ambulance chasing jokes), and as you may have guessed from recent postings, I am not the world's most patient driver. Therefore, I decided that posting entries to this blog after hours of sitting in traffic would likely result in an unfortunate answer to the above-mentioned question due to the angst and inappropriate language that would likely spill over into said posting. This, I have decided, would not result in a smart career move.

Last Wednesday, I spent a considerable part of my late afternoon sitting still on Interstate 540 in Raleigh for who knows what reason. I presume negligence and curiosity was afoot. As a highly educated lawyer, I thought I would be smart and exit the city's largest parking lot onto Lumley Road and take an alternate route back to my home in North Raleigh. Apparently, every other driver on Interstate 540 that day was also a highly educated lawyer as much more sitting ensued after exiting the interstate. Between furious eye twitching and much hair pulling brought on by annoyance, I noticed all the driving habits that used to enrage me: tailgating; abrupt lane changes; inattentiveness (this means you text messaging mini van driver on Lumley Road who took forever to realize the light had finally turned green); and, the token jerk who weaves in and out of traffic just so he can beat us all to the next traffic light by a quarter of a second (Woohoo!!!! Watch out Jeff Gordon! We got ourselves a contender here!).

Before I became an attorney, experiences like these would result in my car horn wishing it was fighting Mike Tyson so it could take less abuse, and the tendons and ligaments in my middle fingers becoming the most developed muscles in my body. But over the years, my "road rage" has tempered and I have become more patient with the world's negligent drivers. And patience is what those other drivers need to learn as well.

Drivers in situations like the one last Wednesday should endeavor not to see red in rage that leads to impatience, but rather think about the green that negligent driving can cost them. Negligent driving can result in court costs, lawyer fees, repair costs, and insurance rate increases. Not to mention the fact that you can injure another person. If you have been the victim of somebody's negligent driving, then consider consulting with an experienced attorney to protect and defend your legal rights.

Disclaimer: The views of the author are his own. Nothing in this post should be construed as providing legal advice to any specific individual. The author's wife has pointed out that the author from time to time may have been the token jerk, text messaging driver, tailgater, and/or the abrupt lane changer. The author would say, "Ditto," in response. The author further would point out that this is irrelevant and renews his objection to further inquiry into his driving habits in that the information sought is protected by his Fifth Amendment privilege and it is irrelevant, overly broad, unduly burdensome, and a bunch of other legal junk that would preclude his having to provide specific details.

I Heart Lawyers

I don’t get to have a lot of Sally Field moments. That is, I don’t often get the opportunity to say, “You like me! You really like me!” As a trial lawyer, the opposite is true quite a bit. Do you know what a great way to ruin a party is? Answer “trial lawyer” to the question of what it is you do for a living. This is especially so if said party is one filled with doctors who work with your nurse wife, and who politely utter “oh," followed quickly by some half-serious joke about medical malpractice attorneys. Then walk away. Stat.

And we’ve all heard the jokes, most of which end up with the lawyer being dead:

How do you stop a lawyer from drowning? Shoot him before he hits the water.
What do you do if you run over a lawyer? Back over him to make sure.
Where can you find a good lawyer? In a cemetery.
Hear about the terrorist that hijacked a 747 full of lawyers? He threatened to release one every hour until his demands were met.

There are a lot of people out there who don't seem to like lawyers. I know this because jurors tell me they don't like lawyers and the lawsuits we file when I ask them about it in jury selection. But, I will submit to you that those beliefs are mostly unfounded. For the most part, lawyers are in the profession to help people and make a difference and not because of a desire for fame or fortune. This is especially so with trial lawyers, who often represent injured individuals or the accused.

Lawyers from my firm routinely volunteer their time to help the community. Professional lawyer associations like the North Carolina Bar Association and the North Carolina Advocates for Justice sponsor events where lawyers can donate their time to help the community as well.

Now the point of this post is not to whine about how people don't like my profession. I enjoy a lawyer joke as much as the next person and there are some lawyers who I also don't like. Rather, the point is that before you bash a trial lawyer for being a trial lawyer, think about all the good things we do as well. Few of us actually live up to those stereotypes.

And remember, you shouldn't tell lawyer jokes. Lawyers don't find them funny and other people don't think its a joke. :-)

Disclaimer: The views of the author are his own. Some cynical readers out there may point out that lawyers do make a relatively good living doing what they do despite wanting to "help people." They are entitled to this belief and the author will concede their point to some degree. It is true that the author could have helped people by joining the Peace Corps. However, this was unappealing to his wife. The author blames Coach, Tiffany & Co., Saks, and Target for his wife's disapproval.

Author's Note: This blog will transition from a daily blog to a kind-of-sort-of daily blog.

Correction: In his blog regarding the 2010 Census, entitled "Count, Barackula," the author stated that he "does not endorse nor is affiliated with any particular party, group, or candidate." The author's wife pointed out that the author is wrong, which she frequently does with great pleasure. The author thinks its her main hobby. Anywho, the author is a fan of the Facebook pages Elaine Marshall for U.S. Senate and Kerry Sutton for Durham County District Court Judge. The author is also an active member of the North Carolina Advocates for Justice, which is an organization that also engages in political activity from time to time. The author apologizes for any confusion. Oopsy.

Count, Barackula

A week ago the government sent me a letter. “Uh-oh,” was my first thought. Fortunately, the letter was not from the IRS. It told me that this week they would be sending me a form to fill out. Well, thanks Uncle Sam, but why didn’t you just send me the form now and save a tree (and some taxpayer money)? This letter, along with the $15 billion (yes, BILLION) Census budget misled me about what to expect when I opened my Census form last night.

The Super Bowl ad directed by Christopher Guest and starring Ed Begley, Jr., the other commercials, the letters, the blogs, the news coverage, and all the rest of the hype led me to believe that the 2010 Census would be an onerous task; that I would need to disclose everything and anything about my household. When I got last week’s letter, I immediately began preparing for the Census by counting things they would allegedly want to know about my household. Let’s see: 2 people, 1 dog, 2 cats, 2 televisions, I’m a PC, she’s a Mac, 2 cars, Cottonelle, Coke, Crest, 57 dust bunnies under 1 couch, 62 under the other couch, have an Oreck, apparently need a Dyson, 3 gray hairs, etcetera, etcetera, etcetera. I was certain that with this amount of effort and this much money poured into reminding me to answer the questions that Uncle Sam, the NSA, Big Brother, and Jack Bauer wanted to know about me and my household that the Census questionnaire would be epic. It would be a massive government survey that would drain the life blood out of me like a vampire as I spent hour after hour after hour answering it.

So imagine my surprise when I opened my Census form last night and it was only 16 questions long: four preliminary questions and six questions each for myself and my wife. They were benign questions: name, race, relationship, Hispanic origin, and some other basic demographic questions. I, a big privacy advocate, had no problem answering any of them except my phone number. $15 billion of taxpayer money was spent on what essentially amounts to ten questions. The population of the United States, according to the Census Bureau (of course) is approximately 300 million people. Therefore, President Obama owes me about another $50.00 back on my taxes this year.

All joking, cynicism, and government criticism aside, the Census is a vitally important function of the Government. It is so important it is mandated by the United States Constitution. As a lawyer, I am an officer of one of the branches of government (the judiciary) and often get asked questions that do not strictly deal with personal injury law. Sometimes, I can answer them: Yes, you are obligated under federal law to answer the Census form. The Census determines how congressional districts are apportioned, which makes a difference in who represents us in Congress and how over $400 billion in federal funds are wasted (um...I meant to say “allocated.” I apologize, Senator Stevens). It is an important task and you should do your civic duty and answer it. It doesn’t take long; I answered mine in less than five minutes. There is no need to try to get out of it like you would try to get out of jury duty (which you also shouldn’t do!).

Disclaimer: The views of the author are his own. You have a right to disagree with him. His wife frequently exercises this right. Now that the Bush Administration has ended, we all have the right to criticize the government free from the fear of prosecution and a trip to Guantanamo. The author does not endorse nor is affiliated with any particular party, group, or candidate. He is friends with Republicans, Democrats, Libertarians and the like. He has great respect for all Members of Congress and other elected and appointed officials. He is, however, slightly afraid of Nancy Pelosi. The author would like you to know that the fact that John Edwards and many other disgraced politicians are also lawyers is just a coincidence.

Put Some Lead in Your Foot

Outside of a monster truck rally or a Nascar race, there are few driving-related experiences that are louder than a drive with my father and I in the same car. If I am driving, the conversations (read: loud, unruly arguments) typically go something like this:

Dad: Slow down or you'll get a ticket.
Me: So what?
Dad: You're following too close. If you rear-end somebody it's automatically your fault.
Me: False.
Dad: I'm just trying to tell you something and give you some advice!
Me: Do you want to drive?!

If he's driving, the conversation normally goes something like this:

Me: You really need to go faster.
Cars whiz past in both the lanes on the left and right of our car on the Interstate.
Dad (to me gruffly): I'm fine.
Horns honk at us.
Dad (to horn honker): Fool.
Horns honk louder at us and middle fingers fly. My eye twitches incessantly in annoyance.
Dad (to finger flippers): Dumb a**es.
Me: You really need to speed up. At least go the speed limit.
Dad (to me): Do you want to drive?!

Safe driving is important. It's important to your driving history, your criminal record, and your insurance premiums. If you're an unsafe driver (such as a chronic speeder or a chronic tailgater) then it could cost you quite a bit of money in legal fees, attorney fees, and insurance rate increases.

To most people, safe driving begins with going the speed limit. Some very clever and literate people realize that the speed limit is just that, a limit. It's the maximum speed that you are allowed to go in a given area. As such, they often drive underneath the speed limit. This often occurs on Spring Forest Road in Raleigh at about, oh, say 7:45ish in the morning while I'm headed to work and causes me much angst.

What a lot of people do not realize, however, is that there is also a speed minimum in North Carolina. No person should drive their car at such a slow speed as to impede the normal and reasonable movement of traffic (this means you, Dad). Additionally, if there are signs posting a minimum speed, then you shall not drive below that just as you should not drive above the posted speed limit.

Speed is a big deal with driving. You are operating a piece of machinery weighing several tons at a high rate of speed. As a result, if you drive your vehicle in an unsafe manner, then you could potentially cause personal injury to yourself or others. So, you should always ensure that you are operating your vehicle at a speed that is reasonable and prudent for the circumstances. If you are unsure as to what that is, then use the flow of traffic and the speed limit as your guide.

Disclaimer: The views of the author are his own. This post is not intended to convey any specific legal advice upon any individual. As with all posts on this blog, parts of this entry were intended more for entertainment value than informative value. If one should have specific questions regarding the motor vehicle laws for their specific situation, then they should consult a qualified attorney. For the record, the author's father is a (fairly) good driver with a spotless driving record. The author asserts his Fifth Amendment privilege with regard to his driving habits and objects to further inquiry herein as it is irrelevant, overly broad, unduly burdensome, and a bunch of other legal junk that would preclude his having to provide specific details. The author apologizes to weekday motorists on Spring Forest Road, including but not limited to his trusty assistant, Pete, who also commutes that way, and may have fallen victim to the author's road rage in the form of cussing, tailgating, horn honking, etc., often while the author was not properly caffienated.

Dude Feels like a Lady

I feel like Lady Gaga today. This statement quite obviously deserves further explanation. No, I did not wear an outfit like this to work today (you are quite welcome, co-workers). What I mean to say is that I can relate to her new single, Telephone, where she sings: “Stop callin’, Stop callin’, I don’t wanna think anymore!” It’s been a long week Faithful Readers and I for one am more than ready for the weekend. It occurs to me that some of you may be having one of those so-called weeks as well (I know for a fact some of you in my office are).

Did you know that forty percent of workers nationally report their job is very or extremely stressful? Twenty-six percent report that they often or very often feel burned out or stressed out by their work. There are many, many different causes of job stress and it not only has a physical toll on our health, it also has a toll on our national economic health. Stress in the workplace can lead to headaches, appetite disturbance, sleep disturbance, low productivity, low morale, job dissatisfaction, an upset stomach, a short temper, and many other issues. We lawyers seem to be particularly stressed out, and studies show that we have a higher rate of suicide and substance abuse because of it. The State Bar actually requires us to take continuing legal education classes in substance abuse and mental health issues because of these statistics.

Depressed yet? Well, I’m sure there’s some very expensive pill your health insurance (if you’re even lucky enough to have it) won’t pay for to help you with that. The point of this post, however, is not to moan or boohoo about my life, your life, your neighbor’s life or your coworker’s life. It’s intended to do for you what the painting of Homer Simpson in my office does for me each day: to serve as a reminder not to take life too seriously (a chronic problem for us lawyers).

Unless you want to become a statistic, you need to find ways of coping with that stress. At work, maybe you take a few more breaks and get a collection of nifty stress balls. Update your Facebook status and surf the web for a few (short) minutes. Maybe you go into your file room and sob quietly to yourself. Whatever works for you. Outside of your work find physical and mental activities that give you a release. I mountain bike and write. I’ve also recently started taking karate classes and highly recommend that as a great workout and great stress reliever. One caveat, however: if you should start taking karate, please restrain yourself from using your new Chuck Norris skills on your bosses and co-workers (this means you, mother).

The weather is finally warmer Readers. Daylight savings time starts Sunday and the first day of Spring is March 20. Get out of your offices and homes this weekend and enjoy it. Bad weather on the horizon? Who cares…when’s the last time you pulled a Gene Kelly? Have fun. See a movie (not Avatar). Go shopping, or do whatever else makes you feel good and take some of that stress off of yourself. It’s Friday, after all.

Inquisitive Idiots

A high school teacher of mine always reminded us that there are no stupid questions. Rather, there are only inquisitive idiots. As a group, we lawyers are often some of the most idiotic of inquisitors. So, why do we ask so many seemingly stupid questions? Sometimes the court requires us to. For example, have you ever seen a lawyer do this?:

Lawyer: Your Honor, we call John Smith to the stand.

(witness approaches and is sworn)

Lawyer: Good morning, Mr. Smith. Can you please state your full name for the record?

Mr. Smith: John Smith.

Lawyer: Thank you, Mr. Smith.

If the jury didn’t know Mr. Smith was the witness’s name, they sure as heck do now. I think it’s boring to the jury and a complete waste of time to have a witness state their full name for the record when you’ve already called them by their name at least twice prior to asking the question. It’s a stupid question. I generally skip this part and just go into the testimony. Some judges, however, will make me go through the traditional spiel and that's their prerogative.

The other reason we inquisitive idiots ask the nonsensical questions we do is that it’s hard not to do so sometimes. In a deposition, for example, the lawyer is simultaneously asking a question, taking notes, listening to the deponent’s response, and thinking about their next question. Sometimes (often with too little coffee in our system) we ask some dumb questions as a result. It happens to all of us as some point in our careers (except me if you happen to be both simultaneously my boss and reading this). Here are some of my favorite dumb questions that lawyers have asked, taken from a variety of sources around the Internet:

1. “Were you alone or by yourself?”

2. “Was it you or your brother that was killed in the war?”

3. “Now doctor, isn’t it true that in most cases when a person dies in his sleep he just quietly passes and doesn’t know anything about it until the next morning?”

4. “Doctor, how many autopsies have you performed on dead people?”

5. “How many times have you committed suicide?”

All humor aside, if you have a question for your lawyer then ask it. No matter how small or trivial it may seem, your lawyer should not be too busy to take the time to get an answer to you. And don’t be afraid of asking a “stupid question,” your lawyer has done the same at least once in their lifetime.

Get the Heel Out of My Way

There are millions of reasons why I dislike (okay, hate) the University of North Carolina at Chapel Hill. Pedestrians are reason number 1,867,423. Every time I find myself unfortunate enough to have to drive through that campus, I am constantly slamming on my brakes, raising a certain finger, and mashing down on my horn. It’s almost as if the administration proudly proclaims each morning, “Extra credit on all exams for jaywalking!” Unfortunately, a lot of people it seems have the "they’ll stop" mentality, and there is a large misconception that pedestrians always have the right of way. That’s not true in North Carolina.

The motor vehicle laws of North Carolina generally provide that a pedestrian must follow the special “pedestrian-control signs” at an intersection (e.g., “Walk,” “Don’t Walk”). If there are no such signals, the pedestrian should follow the traffic signal lights (e.g., “Green means go,” “Red means stop”). At no time under the motor vehicle laws should a pedestrian either 1) cross a roadway outside of a crosswalk, 2) if there is no marked crosswalk, cross outside of the unmarked crosswalk (intersection boarder where the marked crosswalk would normally go). Most generally, this means that the kids at Carolina and other people shouldn’t be walking out in the middle of a street or crossing an intersection on a “Don’t Walk” or red light. If they do so, they are probably failing to yield the right of way to vehicular traffic. This also means that a jury could potentially find that they are contributorily negligent in any civil claim arising from the incident.

Now, if you’re like me and not a fan of jaywalking, this does not mean you have a license to run down wayward pedestrians. The motor vehicle laws also provide that despite the duties of pedestrians, every driver must take care to avoid colliding with any pedestrian on the roadway and should sound the horn as a warning when necessary (finger optional).

There are many laws concerning the use of the road by both vehicles and pedestrians alike. If you’ve found yourself struck by a car while walking, then you should consult an attorney to determine what your rights are. As a person who is sometimes a pedestrian, I always recommend people pay attention to their surroundings, walk facing oncoming traffic, and cross the road at the intersection in the crosswalk. Do not walk out into traffic and always make sure a car has plenty of time to stop. Drivers and pedestrians should be courteous to each other, and the pedestrain should remember that they as a walker have a much better chance of stopping on a dime than a moving vehicle weighing several tons.


Disclaimer: The views of the author are his own. His wife, an employee of UNC Hospitals, loves Carolina as they allow her to buy pretty things via her salary. UNC is allegedly a very good institution of higher education. U.S. News & World Report thinks its one of the best colleges in the country. Current students and alumni think it’s a splendiferous place, and may or may not be lobbying Disney for the rights to call the campus the "Happiest Place on Earth" and the Dean Dome the "Magical Kingdom." The lobbying part is the author's attempt at humor and should not be taken seriously.

The Choice

Dear Faithful Readers:

My wife stuck a pin into the side of my face when I got home this evening. I was naturally perplexed. At first, I thought it was part of her ongoing “husband training.” You see, I have an annoying habit of leaving my dirty laundry in a pile on the bathroom floor (literally less than two feet away from the hamper), and this causes my wife much consternation. It’s my way saying, “Maybe you shouldn't hog the covers every freakin’ night.” So, initially I just thought she had upped the ante in our domestic cold war. In reality, it appears she was just trying to deflate my ego a little.

Thank you for your responses to yesterday’s call for help, readers. I greatly appreciate you taking the time not only to read the post, but to also respond. That is why my ego needed deflating; it’s rare that people care what I have to say about anything. Just ask my wife, she never seems to listen to me. And to enlighten someone, as I apparently did with Anonymous, is even rarer for me!

Throughout the course of the day I have taken your comments and suggestions to heart. I have also reviewed countless other legal blogs, and now have a firm direction toward which to steer this blog. I have also taken your topic requests down and am writing responses as we speak. I appreciate the writers’ block cure.

So, please keep reading readers.

Sincerely,

Mike, Esq.


P.S.: Dear Anonymous: Estate law was my least favorite subject in law school. By least favorite I mean it gave me headaches so I played solitaire during every class. On my final exam, I literally wrote, “If you pass me, I promise never to give advice to anybody regarding anything dealing with a will, estate plan, or trust. Ever.” I passed, and I’m a man of my word. With regard to your friend’s speeding situation, look for a post on that soon. Lastly, in regard to the divorce situation, my only thought on divorce is that I hear it sucks. I don't say that to be smart, rather to just say that I also don’t know anything about divorce other than from what friends have told me. And, quite frankly, I hope to never have to know anything about divorce (Love you, Melissa! I’ll pick up the clothes later…). Email me and I’ll give you the names and numbers of some other attorneys that can steer you in the right direction on the estate planning and divorce topics. Your information will be kept confidential (as will all others who wish to email me about everything and anything).

Readers' Choice

Dear Faithful Reader (a.k.a. "Mom"):

When the firm started blogging two weeks ago I thought it would be easy. I write as a hobby and for the first week or so I banged out blog entry after blog entry on my keyboard with ease. Now, not so much. You may notice that this post is being published very late in the day after business hours. That means I've been struck with a case of writers' block. That also means that I work too much (just joking, boss).

I'm also struggling a bit with which direction to take this blog. There are a lot of law-related blogs out there in cyberspace. Some comment on hot topic legal issues like gay marriage and tort reform. Some educate the reader about what to do in certain situations or what certain laws mean. Others tie into pop culture and discuss the real world legal ramifications that arise. Others push a certain group's political agenda. Etcetera, etcetera, etcetera.

A writer is nothing without their reader. If nobody reads what you write beside yourself, then what you're actually doing is just talking to yourself. And that probably makes you a little off. So, I'm opening up the blog to you, faithful reader(s).

Tell me what you want to read about. All comments and suggestions are gladly accepted, whether you're a daily reader, a frequent reader, or somebody who just accidentally clicked the wrong link in Google. As always, the post is free and the response is free. Go ahead, click that "comment" link. Please comply forthwith.

Respectfully,

Mike, Esq.

The Attorney Privilege

People who are not lawyers often ask me why I became a lawyer. They assume the answer is money; it's not. They assume the answer is that I'm stubborn and like to argue; that's partially true (just ask my wife). Then they become befuddled. Why on earth, then, would you want to become a lawyer? The answer is easy: people like you.

I have always wanted to help people. Although being a lawyer has always been an option in my mind since about the eighth grade (thank you, John Grisham), in high school I seriously considered being a police officer or a Marine. Those options were ruled out when I realized being shot at might not be the best thing going. Then I realized being a lawyer allows me to still protect and serve the public, I just don’t get to wear a snazzy uniform or a Batman-like utility belt to work (without odd looks from colleagues, that is). The law is one of those unique professions that gives me the ability to further my goal of helping people and at the same time make a difference in society overall.

Many people also point out that it must be frustrating dealing with "the system" all the time and doubt they could do the same. It can be. But, our legal system and constitution bring stability and structure to our society and I am proud to be a part of that. Despite its flaws, we can always work to correct them and its still one of the best systems out there. It's a privilege and a noble thing to be able to fight for another person's rights within that system, and to sometimes improve both that person's life and the system at the same time.

You may dislike attorneys. That's fine and you are in good company with a good portion of society. Lawyers sometimes don't even like lawyers. But, while you may not like lawyers, most of us became lawyers because we like people like you; and serving the public is not a privilege we take lightly.

Telling Time

Time after time, clients will ask, “Why is this taking so long?” In the litigation context, it’s likely not because your lawyer is going slow, or falling behind as the second hand unwinds (ever have those days where a song just will not get out of your head?). Rather, it’s your lawyer doing what he or she can within a legal system that commands patience.

Unfortunately, the litigation process is time consuming and is not a quick-fix solution to a problem. In addition to the time it takes to investigate a claim and the time periods the law allows certain actions to take place in, scheduling becomes a problem due to the multiple schedules that must be coordinated. It is not unusual for a lawsuit to drag on for a year or more.

After the lawsuit is filed and served, the Defendant has thirty days to file an answer to the complaint. The defense attorney routinely requests and is routinely granted a thirty day extension on the original due date, causing an initial delay in the case of sixty days. Once the answer is filed, discovery begins and can go on for several months.

Discovery typically begins with a long list of questions called Interrogatories and Requests for Production of Documents. These also must be answered within thirty days and, again, both sides routinely request and are routinely granted thirty day extensions on the original due date. Once the written questions are answered, one or both sides will then begin conducting depositions. Depositions are a legal proceeding where you are sworn under oath and the opposing attorney asks you a lot of questions for about an hour or more on average. Since the schedules of both attorneys, the deponent, and other necessary persons must be coordinate, it’s not uncommon for depositions to be scheduled several weeks or months out.

Once depositions are completed, a mediation will more than likely take place depending on the circumstances of your case. Mediation is a settlement conference without the formalities of court, where a neutral party (the mediator) will try to help the parties reach a middle ground and settle the case. During the typical mediation, the mediator (usually also an attorney), both attorneys, both parties, and an insurance adjuster must be present. That’s a lot of busy schedules to coordinate, and mediation can also be scheduled several months out. If the case does not settle at mediation, then the next step will be a trial.

Trial dates are sometimes hard to come by. The court system is often inundated with cases each year which causes a rather large docket and everyone must wait their turn. Trial can also be delayed due to continuances for various circumstances and motions made by either side requiring a hearing in front of a judge.

None of this even usually happens until you finish treating with your doctors, have begun negotiating with the insurance company, and found those negotiations impassed. Having a case that is two or three years old before it goes to trial isn't unusual (unfortunately). If an appeal arises from the trial, then it could be several more years before the case is resolved completely.
Most attorneys feel you have the right to efficiency and prompt attention in your case. However, despite their often best efforts, the litigation process demands patience. It is time consuming and taxing. But, the prosecution of your case is the only chance you will have to secure justice for yourself due to the negligence of someone else. I think that’s worth the wait.

You've Got Issues

Soft tissue cases are a staple in personal injury law. Among the most common cases for the Plaintiff’s attorney, these cases can also be the most problematic in terms of convincing a jury to side with the client’s cause. The minimal impact soft tissue (MIST) case is perhaps the most problematic because jurors have difficulty believing that such a minor impact can cause injury; this is especially so when the injury is one that typically cannot be seen on an x-ray or other diagnostic imaging test.

A soft tissue injury arises whenever the client has an injury that does not involve a fractured bone or significant neurological defect. The most common type is the strain and sprain to the neck or lower back. Jurors and insurance companies alike often view these injuries with a skeptical eye given the lack of objective diagnostic findings to support such an injury. Often still, the physician’s objective findings during the client’s physical examination typically involve a subjective component (e.g., painful range of motion testing) that leads to speculation of greed, exaggeration, and/or malingering on the part of the client.

Despite these obstacles, soft tissue cases can be won even in venues harboring the most defense-oriented jury pools. A favorable verdict rests in large part upon a properly prepared client, effective use of the client’s medical records, and the utilization of effective trial techniques to aid the attorney in advocating the client’s cause.

Most auto insurers have taken a hardball approach to these cases. The largest and most profitable companies, such as Allstate and State Farm, have adopted tough take-it-or-leave-it strategies when dealing with MIST claims. In this trial lawyer’s experience, these companies routinely extend settlement offers that are either well below the medical expenses incurred and/or offer nominal amounts to compensate the Plaintiff for their pain and suffering. This leaves the client in the unfortunate position of either gambling with a jury or accepting an offer that could potentially leave them still owing medical bills through no fault of their own. It leaves the attorney in the unfortunate position of having to expend serious cost to take the case to trial with uncertain outcome, or recommend a settlement that may not be beneficial to the client. Unfortunately, some cases tend to settle for these inadequate offers because the attorney does not wish to take the case to court because the trial may not prove cost-effective or profitable.

The MIST case is easy for the plaintiff’s attorney to discount. The damages at issue and potential fee from these cases are small compared to cases involving more serious harms and losses. It is important, however, for the attorney to remember while these cases may be small to them, it is often the most important and only case their client will ever have. Even though there is never a guaranteed outcome in any case, MIST cases can be won despite their issues. If you find yourself confronted with issues that a soft tissue injury can present in negotiating with the insurance company, then you should give considerable thought consulting with an attorney and firm that understands and regularly deals with those issues.

Dollars and Sense

At some point in every case I handle the client will ask me, "What's my case worth?" That's a difficult and complicated question to answer. Case valuation, in my humble opinion, can often be the most difficult aspect of the case.

A variety of facts are considered in assessing the value of a personal injury case. Among them are the venue, the types of injuries, the permanency of the injuries, the property damage done to the vehicles, the parties, the witnesses, and the amount of economic losses the plaintiff suffered. This is by no means a comprehensive list. Using these factors, your lawyer should be able to provide you with a well-reasoned estimate of what your case may be worth in front of a jury or other tribunal. But, an estimate is all it will ever be.

No matter how good or bad the case, it is ultimately only worth what the jury says it is worth. Aside from medical bills, lost wages, and other economic losses, a jury is instructed by the judge to base their award on the same logic and common sense they use in their everyday lives. There is no mathematical formula (i.e., no "multiply everything by two" or "multiply everything by three") that they are required to follow. It's all based on their common sense...the same common sense they use when they choose to watch Snooki on MTV's Jersey Shore tonight. Scared? Don't be. I believe for the most part jurors take their job seriously.

The point is that we have no way of knowing what your case is truly worth until the jury tells us. There are no guarantees with trial and going to trial is a risk and a gamble. Fortunately, the risk is often a calculated one. The decision whether to settle your case with the insurance company or to go to trial is not one that should be taken lightly and it should a well-informed decision you are comfortable with.

Say What?

Let me share with you what annoys me about Starbucks. First, a medium coffee now costs $2.01. The extra penny is entirely unnecessary. The second thing that annoys me about Starbucks are the beverages that are everything but coffee. You know the drinks I am talking about: Venti skinny no whip caramel macchiato. Grande extra whip no syrup cinnamon dolce latte. Orange mango banana Vivanno smoothie with extra whip. Supercalifragilisticexpialidocious. I order coffee, not just because I love coffee, but also because even attempting to order these other concoctions makes my tongue knot, eyes cross, and brain hurt. I presume the language in which I am ordering the drink is English, but I have absolutely no idea what any of it means.

It occurs to me as I sit writing this in my favorite Starbucks that the same things that annoy me about the coffee company annoy you about lawyers. That is, we’re expensive and often don’t make any sense. It’s not our fault for the most part, however. In law school, we learn a language called “Legalese.” It’s a bastardized and pretentious version of English that the folks at Rosetta Stone haven’t developed a program for yet. The language ruins our ability to communicate with so-called normal people and angers our friends and family when we use it. Have you ever told your wife to “please comply forthwith?” I highly recommend that you don’t. If you do, I know of a personal injury firm you’ll likely need to call afterward.

You see, after three years of the linguistic odyssey known as law school, most lawyers can’t help themselves any longer. Good lawyers know that the key to client service and persuading a jury is to talk with said people as if they are actually people. To use English. But, all joking aside, we lawyers are people; imperfect people with hard to break language habits drilled into us by precedent and a profession steeped in tradition. This trial lawyer has seen lawyers in depositions act like American tourists in a non-English speaking country:

Lawyer: Please describe with particularity the events comprising the incident described in your Complaint.

Deponent: I don’t think I understand the question.

Lawyer: PLEASE…DESCRIBE…WITH…PAR-TIC-U-LAR-ITY…THE…EVENTS…COMPRISING…THE…IN-CI-DENT…DESCRIBED…IN…YOUR…COMPLAINT!

Rather than translating the Legalese (e.g., “Tell me what happened”), the lawyer thinks it will be beneficial and an understanding of the “language” will suddenly be achieved if they just talk louder and slower to the person. To treat the person as if they were deaf and dumb. Luckily, this happens fairly infrequently in my expereince, but it’s still annoying.

The key to a successful attorney-client relationship is communication. If you do not understand something, then you should let your lawyer know and keep asking questions until you get an answer you understand in plain English. If you are the lawyer, then please remember to speak plainly and clearly for the benefit of everyone involved.

Please comply forthwith.

Disclaimer: This blog post is not intended to convey any personalized legal advice upon anyone. The views of the author are his own. Parts of this post were intended to be humorous for the benefit of Monday morning. The author apologizes if the reader did not laugh and took everything seriously. Legalese is not a recognized language. The message contained herein regarding ensuring that you understand the legal advice given to you by your lawyer, however, is serious. For the record, the author loves Starbucks and thinks they have the best coffee around.