Did you know you can read a "code " as part of your direct case?

I remember being on trial about ten (10) years ago on a wrongful death Labor Law case in front of Justice Frederick Sampson in Long Island City. I was having fits trying to get "my arms aound " The Dead Man's Statute . For any of you who have tried a case in front of Justice Sampson you know he is a real stickler on the rules of evidence and understands and enforces compliance through his stern evidentiary rulings. I have seen many an attorney frustrated beyond belief not able to lay the proper evidentiary foundation to even admit photos into evidence.
So anyway, this trial involved an individual who who was using an electric snake at a worksite and due to the frayed condition of the tool, coupled with the owner's failure to maintain a "ground fault circuit interrupter" my client was electrocuted and died. My engineer purchased an exemplar "ground fault circuit interrupter " to display to the jury. Real issues also existed as to whether there were was any conscious pain and suffering at all.
With all these issues facing me, I turned to " Broder's Trial Tactics and Techniques". If you don't have it, get it! Anyway , while trying to really understand the 'Dead Man's Statute ", I came across one of my greatest finds as a trial lawyer; the concept and the legal support which allows you to read a "code section" into evidence as part of your direct case at trial. Yes, Industrial Code 23, The Administrative Code etc. This is done not during jury instructions , but on your direct case.
In my case, frayed power tools constituted a specific Industrial Code 23 violation. So I followed the procedure outlined by Broder. I had a so-ordered subpoena issued for Industrial Code 23 and served it on the law librarian at Sutphin Blvd. Next day ,when the Court asked me to call my next witness, I proudly stood and announced my intention to read the code section to the jury. Over objection by all 3 defense counsel, Jusice Sampson allowed the reading. Standing two feet from the jury I read the appropriate section to them regarding frayed power tools. Great two minutes!
After that trial[which settled with the jury out], I read the code on many other occasions and "tipped off " my good friends on how it worked.
Moral of the story; You can always learn something new.

Attorney Funding; Don't Expect a Rate Less Than 2% Per Month.

For those of you attorneys who are seeking funding on a settled case which for one reason or another will not be paid within the 21 day period prescribed by CPLR Sec. 5003(a), you should be cognizant of three guiding funding principles;
1. If you have judgments against you, liens,IRS issues or very poor credit, most likely funding will be difficult to obtain;
2. Customarily rates will be 2%/month of the amount advanced or sometimes higher, and
3. Funders will normally advance up to about 50% of your net expected fee plus expenses.
Contact me if the need arises and I can walk you through the process.

Binding High Low Arbitration; I Love It!

Moving cases is the name of the game. Yes, there are always certain cases you want to squeeze every dollar out of; but is that the attorney's desire or the client's? I'm not trying to say don't be prepared to try any case you need to, but at the end of the day how many verdicts do you actually take? When I was practicing we usually settled about 200 cases a year. We usually tried 12-15 a year. I always told people that my dad taught me how to try a case and I taught him how to settle one.
Today, everyone is fixated with mediation; JAMS, NAMS, ENDISPUTE, etc...Mediation is terrific. But, if you'll notice mediation is always done when defendants want to do it, not necessarily the plaintiffs. It usually doesn't happen until all ebt's are done, sj motions decided and defense counsel feel they've finally billed enough on the file. That defeats the whole idea of moving cases at an earlier stage.
I believe a system would work where on cases with coverage of 100k or less,( or where parties agree) after service of a bill of particulare [no ebts] the parties submit to a one day binding high low arbitration; parameters set by prior settlement discussions , if any. You'd be surprised. Cases finishing in 9 months instead of 3 yrs. A win , win for all. No Dr's fees!
At the end of the day, would you rather have an 85k result in 9 months or 115k in 3 and a half yrs? You be the judge.

Tough Business, But Still an Excellent Way to Make a Living.

Let's face it , if you went to a Harvard Profesor in their MBA program and said " hey I got this business model for you ; we're going to take cases on a contingency basis , we're going to wait 2-4 years to get our money if we win, we're going to front all expenses and operating costs and if we lose we not only don't get paid, but we lose all expenses that were outlayed. If you asked him if this is a good business model, he'd tell you your crazy. Can't work!
Well I just defined a plaintiff's lawyer's business model for you. Yet despite all the tort reform, anti-lawyer sentiment, the credit crisis , carrier's recalcitrance and a business model that shouldn't work, thousands and thousands of attorneys still practice in the field of personal injury law. The top echelon attorneys are making seven figures. The very fortunate $500k to a million. A large number are making 200k to 400k. Unfortunately, many aren't making it.
But despite all the complaints, there is still plenty of lucrative work out there. But let's be honest; The business is a grind and you work and fight for almost every dollar. Clients are usually no picnic either.
There usually is one consolation at the end of the long hard road towards settlement. When you settle, you're going to get paid!

Medicare Eligible; The Sequel.

As a followup to yesterday's discussion, the process does not end there. After you receive correspondence from Medicare regarding the amount that is being claimed, you are entitled to an itemization of all charges/ payments that were made. That information must then be reviewed by you to determine what charges are related to the injuries claimed in the accident claim that is being pursued.
After determining what charges are "not related", you must provide documentation to Medicare to support your position as to which charges are not reimbursable. Good luck.
Just think; This will eventually become second nature...just like negotiating a worker's compensation lien!

Is Your Client "Medicare Eligible" ?

The first issue you have to address pursuant to the Medicare regulations is whether your client is " medicare eligible", not Medicare Approved. Those who are medicare eligible include:
1. Individuals who are 65 and over,
2. People of any age who have kidney failure or long term kidney disease and
3. People who are permanently disabled and cannot work.
As soon as you start a case for a client who you believe to be "medicare eligible", you should promptly contact "The Coordination of Benefits Program " by calling 800-999-1118 and by pressing the number 4 to report a claim. You can also write to them: (Fax) 734-957-9598.
This will then start the process towards receiving a Medicare Accknowledgment letter and then a letter with " Rights and Responsibilities. Automatically, within 65 days thereafter, you will receive a Conditional Payment Letter.
Sounds confusing? Well it sure is. But these few steps will help get you going in the right direction.

Do You Really Want Us to Send the Check to the Client's Home?

So once the funding deal is reviewed, approved and the contract is signed, it is time to issue the funds ($). There are basically three ways to fund a deal:(we can wire funds in an emergency).
!. Client comes to us and picks up the check in person;
2. We overnight the check to the attorney's office(usually the safest) or
3. We overnight the check to the client's residence . While this appears to be the most hassle-free method (less time dealing with client); at the end of the day , sending the check dierectly to the client can turn into a nightmarish experience. The problems include:
i. Wrong address is given to Federal Express;
ii. No apartment # is listed on the airbill;
iii. Client is not home when the overnight courier arrives;
iv. The building is a multiple dwelling (without a doorman) and courier cannot get access to the apartment, etc........
So what happens? After 20 calls and emails back and forth , a stop-payment is placed on the check, and it is re-issued and overnighted to the attorney. That is why my advice is always to send the funds to the attorney, unless you are 1000% sure the client's address is good and client will be home waiting. I like to also get the client and attorney the tracking # also, so they can monitor the delivery.
Moral of the story; Better to be safe than sorry!

Funding; Send Your Clients in To Sign, Pickup Check and Cash Em, All in One Fell Swoop.

In a busy, or even not so busy law office, helping a client get funding can be time consuming, frustrating and filled with headaches. But it doesn't have to be that way. There's probably nothing worse than when you have a brief due, or opposition papers due or you're prepping for a trial and a client is hassling you over funding.
Give yourself a break. Scan and email me the application and documents . Once the deal is approved I can email[or fax] you the contract. Then, simply sign the attys page and return it to me. You can send the client to us to sign his contract, pick up his check and cash it; yes, all without having to even see your beloved client. We will of course forward you a fully executed contract. Funding doesn't have to be torture!

When is Enough , Enough?

I have nothing but the most profound respect fot plaintiffs' trial lawyers , having been one of the tribe for over twenty (20) years. I rememember this one huge trial I had (6 wks. in Supreme New York) where I was so financially strapped that I ate tuna fish sandwiches, drank instant coffee and water , and schlepped a 75 lb. trial bag to the Courthouse every day for six weeks. I made it! (plus it builds character).
So when you get that "case of a lifetime", you not only want to maximize the results for your clients, but you certainly want to maximize your fees as well. It makes up for all those Allstate threshhold cases and premises cases with"urine, feces, vomit and other dangerous substances " on the stairwell.
But when is enough , enough? We all heard about the recent case where one of New York's premier trial lawyers turned down $8 million, only to be no caused. I'm working on funding a deal now where there is an offer of $10 million; but the attorney wants $12 million. In my opinion there is a very fine line between pushing a little too hard and a little too far and putting the plaintiff's "whole life " at risk.
I gather as experienced trial attorneys you have to trust your gut instincts, examine your relationship with the client, defense counsel and the Court and make the best, most well-informed decision. Not easy! Go get em!

For Funding Purposes, When is a Case Considered Settled?

In the world of funding, a settled case will almost always give rise to a lower funding rate than a non-settled case. Makes perfect sense, since there is now finality and the risk of loss is all but removed from the equation. So what documents will support that the case is settled in a funder's mind;
1. Release-of course;
2. Inf's compromise or Death Compromise-confirming letter from the carrier as to settlement together with a draft of the petition or
3. Statement on the record regarding settlement by counsel, or a
4. Stipulation of Settlement.
Now, I suppose today even an email between counsel, or the defendant's carrier and plaintiff's counsel will suffice.
For all intents and purposes , without any of the above , for funding consideration the matter will not be considered settled.
Contact me with any inquiries.

So What is a Non-Surgical Herniated Disc Really Worth These Days?

So how is a case really valued? Plaintiff's lawyers would like to think that the carrier or defendant values the case based on jury verdict exposure, while throwing litigation costs into the mix. Judges, mediators and arbitrators value cases based on what have long been considered"ranges of accepted values" in particular venues over a long period of time. In reality a distal fracture, lumbar fusion, torn labrum or whatever the injury , is not truly individually valued , but placed into a range of values .
At "the end of the day", it is , and has always been, the carriers who have set the values. The City of New York tells you what they pay on a meniscal tear, no surgery. The New York City Transit Authority "tells you" what a wrist fracture with external pinning is worth. Allstate, State Farm, Geico and American Transit "tell you " what a herniated disc at L5-S1 is worth with "no work loss". The values then become "accepted settlement values" in the litigation community as plaintiffs continue to accept these artificial values.
So what can be done? Try every single case? Not feasible ? Settle every case at the value your offered; not likely. Continue to try to distinguish each of your cases as not falling into this "carrier established valuation". Once in a while even ask, " where did you come up with this value?
So what is the settlement value of a herniated disc at L5-SI ,3 months out of work worth with slight impingement; $7,500, $25,000, $12,500, $45,000.......I don't know....but tell me who the carrier is or defendant, and I'll give you a pretty accurate range.

Attention Attorneys; If you need $ for payroll Friday, Contact Me On Tuesday or Wednesday, Please Not Friday Afternoon at 3.

Let's face it , some times the well runs dry, and the check you were expecting from the City of New York for payroll just didn't come in on time. Well , I can provide you with attorney funding on a settled case in an expedited fashion, at very reasonable rates. All that is needed is a quickie application, release(or some evidence of a confirmed settlement) together with a copy of your retainer agreement. If you have no lurking IRS or a judgment /lien situation it can be done quickly.
Of course, "quickly" is a relative term. If everything is in order funding can be done the same day. If any issues come to the surface , usually a little bit longer.
So the moral of the story is, if you see the need to get attorney funding for payroll, rent, payroll taxes or whatever, submit your funding application a few days in advance....(you can always cancel)..not at 3 p.m on a Friday in mid August.

I Don't Compound Monthly Fees; Most Other Companies Do!

The first question you should ask a funder is," do you compound your fees monthly". If the answer is yes, the deal can end up getting quite expensive for your client. My funding deals DO NOT compound monthly, making the rate that much more attractive!
You should always look at the disclosure table on the contract and see . Remember, the longer a case drags out, the more the client will owe , especially when the interest compounds monthly.

Contact me; I'll show you ways to avoid this pitfall.

Only One Way to Fund the Family on an Infant's Claim; Get a Court Order.

Periodically, I will get calls regarding funding for the parents of an infant claimant. While funding for a parent"s loss of services claim on a very good case is done, the only way to provide funding on an infant's claim is via Court Order. The reasoning is two-fold;
1. Technically no one has authority to encumber the infant's case[see Article 12 of the CPLR] and
2. If monies are advanced against the claim/case, the Judge who ultimately presides over the infant's compromise order may simply deny the funding repayment. Then the funder is stuck.
The answer, proceed via ex-parte order with a supporting attorney's affirmation and parent's affidavit seeking judicial consent to a prospective funding transaction. Once approved , the order can be sent to the funder and attached as an exhibit to the funding agreement. Everyone is covered!
Most importantly the family receives desperately needed funds and the the Judge who ultimately presides over the compromise will be bound by the order permitting funding.

Should Pre-suit Mediation Be Mandatory ?

Several states, including a very litigious state, Florida, have a whole system in place to try to resolve cases pre-suit. Demand letters to carriers, waiting periods and even mediations are held pre-suit in an effort to try "to move cases " in the claim stage. Is it working? My gut says it is. I can tell you one thing; more cases are being settled in Florida pre-suit than in New York.
Let me give you a little historical overview. When I graduated from law school in 1984(admitted in N.Y. in 1985) "everything " was being negotiated and settled in claim. Basically if you didn't like the offer you filed suit. There was actually an unwritten rule that you would try to settle with the claims-person before filing suit. The carrier's rep. would actually get pissed off at you if you didn't call first before filing. I can remember dozens of conversations where I was told" mark the case settled at $7500 and send me meds with the release".
I believe a multitude of factors have eroded this once great process which include:
1. Adjusters no longer having individual authority like the "old days";
2. Defense counsel have become an impediment to settling so they can bill, bill an bill some more;
3. Renegade caarriers like Allstate have" buttoned down the hatches ";
4. Carriers starting requesting pre-suit mri reviews and IME's;
5. Medical malpractice consent clauses have prohibited settlement;
6. The City of New York and the NYCTA used to settle much more frequently and of course
7. Every mva case without a confirmed fracture is a "fight to the death" on threshhold.
So what is the moral of the story here; bring back mandated pre-suit settlement procedures on cases with values under $100,000. Plaintiff's counsel will be happy, clients will be happy, the Courts will be happy, the carriers will be happy...and oh yeah, Defense Counsel will unfortunately be miserable.

Trials Just Around the Corner; Get Your Funding, Get Your Funding.

With Labor Day four weeks away, the kids return to school in September and the start of the Fall trial session, it is time to start thinking about funding these cases and planning ahead. Attorney's funding, client funding and funding for litigation costs/expenses can certainly ease the stress of a "dry summer" and satisfy the immediate need for a cash infusion to keep things going.
Whether you're looking forward to another month of vacation/reduced Court schedule or whatever, or if you're chomping at the bit to pick a jury on September 14th on the biggest case in your office; funding at low, reasonable rates may help you "hold the fort" until your ship comes home.

Stuctured Settlemements Are Not For Everyone.

For the past five years I have originated funding transactions and have worked with trial lawyers nationwide. Before that, I tried cases for 20 yrs. So based upon 25 years of my interaction with attorneys, clients and insurance carriers, I have come to one clear, unwavering conclusion; structured settlements are not for everyone.
We all know why "structures are pushed";
1. Judges push them to "protect the plaintiff";
2. Attorneys use them to beef up a settlement, because a carrier proposes it, because some lawyers actually care about the client's financial well-being after the settlement and for a variety of other reasons and
3. Carriers use them for the obvious financial reason; i.e. Allstate Life Insurance Company issuing an annuity for Allstate Property and Casualty is a "paper transaction" where the money($) stays in the Allstate Family earning untold amounts of interest.
Yes, structured settlements are good in certain situations; a brain damaged baby case, an infant with severe life-altering injuries, young children who are distributees in a significant wrongful death case and victims of disabling traumatic brain injuries.
But even in the most appropriate cases, the amount of money placed into the structure must be balanced with the amount of" upfront cash" going to the client or familiy. Otherwise, the client buys a house, runs out of money, and then not even a year post-settlement the client is looking to sell a payment or stream of payments from the annuity(These transactions require Court approval pursuant to the GOL).
A structure is not appropriate for settlements under $50,000, or where 80% of the money is put into a structure and 20 % is paid as upfront cash. I grimace when I see the first payment under an annuity contract coming due 10 years or more after a settlement....I guarantee you no one , unless financially secure independent of the annuity ,can hold out for the first payment. And then there's those hard- headed, stubborn, recalcitrant clients who "just want their money and want it now"! Nothing you can do about it.
So the moral of this story is; Don't push a structure for the sake of pushing a structure; Remember they are not for everyone.

Using the Big Apple Map to Make Out Constructive Notice Against Landowner.

Let's face it ; In a perfect world on a case against a property owner relating to a trip and fall accident on "their sidewalk", an investigator's report, good color photos, an engineer's on site inspection and an affidavit from a notice witness will usually get you to the "promised land". But when all else fails or to supplement your other proofs, a positive "Big Apple Map" for the same defect ,introduced at trial will usually get you to the jury on your constructive notice theory.
It doesn't matter that the City is not a party. One of my customers recently used the map at trial in conjunction with photos to secure a plaintiff's verdict against Penn Plaza.
Hopefully this will aid you in the future, and it will also go a long way towards securing funding if requested.

Are Allstate, Countrywide and American Transit Winning?

As we all know over the last 10 yrs., these three carrier's have been the most difficult to settle mva cases with, make the most threshhold motions and take more verdicts than most. The question that comes to mind is , "are they winning the war" thru their obstinence.
One could argue yes. I have a particular attorney -customer in .N.Y. who when he sees one of these insurance company codes on the police report will not take the cases. Other attorneys fold"like a cheap suit" the minute they see a summary judgment motion on "serious injury" or when the carrier takes a "no pay position".
But on the other hand there is that great breed of litigators who don't care about codes or carriers, will fight every sj motion thru the App. Div. and will also take verdicts , sometimes for no other reason than to let Allstate know "I'm not going to be easy". Plus, in New York there are so many personal injury lawyers that someone will always take a case.
Moral of the story; If you're looking for easy money stay clear of these carriers; if you are prepared to litigate a case based on the underlying merits[not the def't carrier} , then continue to do what you do best....File suit!!

Getting Emergency Room Records; Is This a Lost Art?

I'm continually surprised by attorney's responses when I request the ER records for funding purposes: "We requested them, but haven't received them yet". Obtaining the ER records is just as important as obtaining the initial incident reports, c2's, police accident or aided reports.
The ER records will contain a history, listing of initial complaints, references to "aob" etc. To me , I always wanted to get them before the carrier did to see initial complaints, check out the history and to see if the records raised any issues I had to be "ready to meet" down the road.
So to me when an attorney says "don't worry I have the treatment records and mri's; that's exactly when I begin to worry. Get the ER records and get them early!

Get the Payoff Before the Mediation; Always Smarter to Plan Ahead.

Let's face it, some attorneys "prepare for a mediation" and some"PREPARE"! Good litigators always look at a mediation as a chance to strut their stuff, and maybe even settle, or get closer towards settlement. Of course you want to hold a little something back too.
Part of the preparation process is to "get a handle " on all existing liens; including funding liens. That way at the mediation, during potential $ discussions you are keenly aware what number you need to get, to put "x dollars" in the client's pocket.
All it takes is an email to me 3 or 4 days before the mediation requesting "a payoff amount good for 30 days after the date of the mediation".
I can usually turn around a request in under an hour.

Never, Ever Let the Clients Complete the Funding Application Themselves.

There are a slew of reasons that exist which make great arguments for not letting the clients complete the funding application themselves, which include;
1. Clients will tell you anything to get "cash";
2. Client's don't usually have access to documents/information we need;
3. You don't want clients signing or preparing anything which could become subject to subpoena " down the road", and
4. Lastly, If you want your client to obtain funding, (despite the fact that process takes 30-60 minutes of your time), as the attorney you can be in control of the situation; i.e. amts., information, etc......and you will do it the right way.
Some attorneys have the client call me about funding; which is fine , but frankly a waste of time. Those attorneys who have worked with me know to simply email, fax or overnight to me a "funding application and packet" which will certainly streamline the process.
Again with client funding,"you're either in or out".