It's truly amazing;Judges who never settled a case in their lives join a mediation company and they're now experts.

I gotta laugh. Almost every week or every other week an announcement is published in the Law Journal letting the legal community know that another judge has retired from the bench and is joining a private mediation/dispute resolution company. Some of these former Judges never really practiced law and others never really had "the stomach " to spend the time while on the bench settling cases. Whatever the reason; it "was beneath them, " they didn't have the time", didn't have the expertise or whatever, they didn't do it.
Most Judges' idea of trying to settle a case is "what's your demand, what's your offer? Ok," you're too far apart, go pick a jury".
But these same former judges now retire, become instant experts on settlement and the parties are of course charged $500/hour for their time. Remember, a name doesn't get a case settled, but a patient, realistic, practical , experienced and level-headed jurist will.
The key; Check out your proposed mediator with individuals whose opinions you trust. Not everyone is as good as Mike McCallister.

Worst Funding States of 2010;

WORST FUNDING STATES OF 2010;
1. Maryland
2. Ohio
3. Illinois
4. Georgia

Best Funding States of 2010.

BEST FUNDING STATES OF 2010;
1, New York
2. New Jersey
3. Florida
4. Pennslyvania
5. California
6. Nevada
7. Texas

I'm Tickled Pink; There is still warmth, decency and sensitivity on "The Bench".

Let's face it; the world has changed, people have changed, the practice of law has changed and "Judicial Demeanor " is no longer the same. Right or wrong, State Court Judges and even more so, Federal Court Judges have become outwardly tougher, increasingly impersonal , less approachable and in my opinion(20 years of trying cases and almost 6 years funding them) the "Bench " oozes with insensitivity. Is this because the caseloads have reached such stagnating levels ,or because attorneys and litigants are more recalcitrant, or due to more pressure from administrators to"move cases" or a combination of all of the above.
Whatever the reasons, "tough" seems to be in. So when I read Wednesday's New York Law Journal, I was tickled pink when Judge Kimba Wood , a well-respected Federal Court Judge in Manhattan granted an orthodox Jewish defense attorney's application to have a day off from trial if his daughter's first baby is a boy[for the Bris] and Judge Wood also wrote" if a daughter is born there will be a public celebration in Court, with readings from poetry celebrating girls and women"(see "aishes chayil").
Wow! How cool is that ! After getting sanctioned numerous times by judges over the years for anything from speaking objections, chewing gum to taking off your suit jacket when it is 98 degrees and there is no air-conditioning in the Courtroom, this goes a long way towards restoring my belief in civility, caring and compassion in the Coutroom.

Judge Wood, you made my day!

2010; Best Carriers.

Best Carriers of 2010;
1. Chubb
2. AIG
3.Progressive
4. Utica Mutual
5. Zurich
6.Met. Life
7. Hartford
8. Geico

Your thoughts?

2010 Year End, Top 10 Worst Carriers -Defendants.

Top 10 worst carriers /defendants of 2010;
1. American Transit Insurance Company
2. Countrywide Insurance
3. Allstate
4. New York Transit Authority
5. City of New York
6. State of New York
7. County of Westchester
8. State Farm
9. U.S.A[Tort Claims Act]
10. All med. malp. defendants

Happy turkey to all.

Did you ever get lucky enough to catch a defendant altering records?

You can go years and years, through thousands of cases and hundreds of trials without catching a defendant altering records. You may think they altered records, be highly suspicious of it and even hire an expert to opine on the issue.
But how often do you actually catch a defendant altering who admits it on the stand at trial in open Court "under oath". Well ladies and gentleman, in a nursing home negiligence case[no bedrails-fractured hip] which I tried in Superior Court, Bergen County, the triage nurse admitted to records being altered. I almost fainted! I continued my cross for an hour before the Judge had to call in the "cut man" to clean her up.
As is every trial lawyer's God given responsibility , I summed up on it for almost 2 hours, pounding, and pounding and pounding!
Result : plaintiff's verdict $330,000.
Moral of the story; If you get ahold of something good, never, ever let up. Because I guarantee you, your adversary won't!

Congratulations to those firms who have settled "their Oxycontin cases"; Funding now available.

Another drug manufacturer bites the dust; Oxycontin is settling. Albeit, not for great numbers....but not for chicken feed either. The big law firms are signing their term sheets now on behalf of hundreds and thousands of clients.

That is the good news; The bad news is the money will take 6-10 months to roll in. Well don't fret...Yes. I have put together a funding program with special low rates for "settled Oxycontin cases". Process is streamlined for you and your clients. With the holidays here I know the clients are calling for money. Make it simple and hassle-free. Contact me, I'll take it from there.
Gobble, gobble!

When was the last time you handled a podiatric malpractice case?

One type of malpractice case you see less and less of is a podiatric malpractice case. They are difficult cases, tough to settle and the"ultimate upside " is not there. How much is a hammer toe actually worth?
In 2004 I tried a podiatric malpractice case against the N.J. Nets team podiatrist.(I didn't even know they had one).This guy was stuck up beyond belief, lost the xrays and tried to finesse the jury all the way. I wanted nothing to do with the case but got forced into trying it when the client " called my bluff" and wired $7,500 into my account for trial costs. Yikes!
Oh well, another day at the office...no pay, fight to the death. "Case has no merit"!
Verdict on a" botched hammer toe surgery" $135,000. I should have asked for more. I HAD FUN WITH THE" MISSING XRAYS" during summation . Settled for $ 130,000.

Well you don't see too many like that. Anyway, these are depressing cases to handle. Make sure if you take one, it's a real one...[get a good expert] and remember there is no such thing as nuisance value on these.
Don't say I didn't warn you.

More and more Hedge Funds getting into the act.

Litigation funding has now been around for 15-17 years. What started out with a handfull of small mom and pop companies...has now turned into a "billion dollar industry". Where has the infusion of cash come from? Large banks, wall street, wealthy individuals, insurance companies and hedge funds.
These large sources of capital have come to realize that while stocks, bonds, currency , futures, commodities , puts and calls may be traditional investments, swings in the economy will ultimately control their value; while litigation funding will actually operate in a vacuum, independent of the local, national and world economies. In fact an argument can be made that funding will actually increase during economic downswings..

Your thoughts?

New York Times Funding Story; I thought they did a decent job.

I'm sure anyone who is a regular N.Y. Times reader caught the front page story on the "Funding Industry " on Monday. I thought the article was well written, objective and a fair amount of time was spent researching and preparing the article. What was nice was the fact that the writer did not make judgments about the industry; just reported facts. Their chronology was well done too.
Interesting though that arguably the leading daily newspaper in the world is just getting wind of funding all these years later.... What do you think?

If you litigate, you must have "on hand" Industrial Code 23 and "The Patrolmen's Handbook".

If you're a litigator, there are certain texts/reference books you always want to have available even with the vast resources of the Internet. Everyone has The Physician's Desk Reference, Siegel on New York Practice, PJI'S , a pocket version of the CPLR and usually an anatomy text. But you haven't really lived until you get your very own Industrial Code 23 and Patrolmen's Handbook.
Industrial Code 23 is the Bible for Labor Law . You'll be amazed what you can cull from there. Great stuff , plus you can read the Code as part of your direct case at trial(See Broder's Trial Tactics and Techniques).
The Patrolmen's Handbook is a tremendous source of priceless materials to assist you in prosecuting police misconduct/brutality cases. Nothing better than marking a page at defendant's deposition and asking the police office if he or she was/is familiar with a particular section you allege was violated.
Oh, and do yourself a favor pickup Broder's Trial Tactics and Techniques. I know it got me out of a number of jams over time on sticky evidentiary issues. Happy hunting!

Don't handle a products liability case if you don't have the experience, resources and staying power to bring them to conclusion.

Products liability cases "are horses of a completely different color". Most defendants are self insured, they look at these cases as an attack on their product, hire the best and most skilled defense counsel and instruct defense counsel to "fight to the death"(no settlements).The one exception that comes to mind is Toro Lawnmowers who have a national mediation program.
As a litigator I sued Ford, GM, Chrysler, Honda, Toro, and many, many more product manufacturers and distibutors. I had a lot of big hits and many some small settlements(crappy cases) , but because I knew how to prosecute them (coupled with my stubborness) I don't think I ever walked away " empty handed " in over 20 years of prosecuting these types of cases.
There are two things you have to do in every "products case"; which if you don't do you might as well flush the case down the toilet;
1. Bring a pre-suit order to show cause requesting an order for inspecting, photographing and videotaping the product. Your application should also request a TRO enjoining any repairs, alterations, maintenance , modification , movement or destruction of the product pending your inspection.(Request any records related to repair from date of accident to your inspection as well).
2. Immediately hire an expert[not a "jack of all trades] who MUST examine the vehicle once you get your order. ***Of course if your client is in possession of the vehicle( OR PRODUCT) you do not need a Court Order. In this instance , make sure you secure the product or vehicle, do not dispose of it and make plans to securely store it throughout the entire course of the litigation.
Always accompany your expert to the inspection and make sure you identify manufacturer, make, model, serial number, component part makers etc, so you can formulate a complaint.Always alternatively plead, design defect, manufacturing defect, negligence UCC violations and breach of express and implied warranties as well.(Don't forget punitive damamages).
By now your expert should provide his preliminary opinions to you which will allow you to tailor your interrogatories and discovery requests. Over the years I put together a hundred page set of interrogatories which we used in every " products case". Defendants generally knew we were playing for real. Make sure every iota of investigation and discovery you receive winds up in your expert's hands. He or she will guide you through the technical side of the entire litigation. Expensive yes....but no other way to proceed.
Well , enough for now. Are you getting the picture? Product liability cases against major , fortune 500 defendants are complex, expensive and are not a walk in the park.

Does anyone really handle many dental malpractice cases anymore?

Back in my heyday of litigating and trying cases we usually had about 10-12 dental malpractice cases in our inventory at any one time. As is well known by litigators, dental mal cases are loaded with issues;
1.Usually plaintiffs have a long history of dental problems/issues which provides for a lot of discovery and the old" his mouth was a mess anyway defense",
2. Most dental injuries do not have "top shelf " value,[exception lingual nerve damage cases etc,]
3.It is always difficult to distinguish dental treatment pain from pain related to the alleged malpractice and
4. Lastly, these cases are expensive to prosecute and usually must be tried due to consent clauses in the policies. Not to mention , the defense attorneys are usually more experienced than their plaintiff-counterparts.
So are the carriers and dentists winning? I personally believe they are.While a few select firms handle them in volume, most practitioners do not want to be bothered on a case worth 100k or less which will cost 30k to prosecute.
Do you blame them?

Compounding vs. Non-Compounding; The Sequel.

As a brief followup to yesterday's blog, let me further illustrate for you the comparison between a compounding rate vs. a non-compounding rate. At the end of year three on a $50,000 advance, 3.5% monthly compounding rate you would owe $168,000. At the end of year three on a non-compounding 15 % every 6 month rate you would owe $95,000.
Is that a significant difference, or am I crazy? (Don't answer that).

Moral of the story; Don't take a "quick fix" and allow your client to wind up with a "suffocating , compounding rate" which will make it very difficult to ultimately resolve the case.
Stay on top of things!

Compounding fees vs. Non-compounding; You'll be astonished!

As you may be aware my funding rates are typically 15% every six months; NO COMPOUNDING. A rate you may see from other companies is 3.5 % per month, compounded monthly. Let me show you through a quick illustration how vastly different these two rates can be in terms of accruals.
Case number one, client gets $50,000 of funding. Rate: 3.5 % per month, compounding monthly. At the end of one year he owes $75,000. At the end of two years, $112,500.
Case number two, clients gets the same $50,000. Rate:15% every six months. At the end of year one he owes $65,000. At the end of year two, he owes $80,000. Quite a difference!
We didn't even get to year three....
Moral of the story: Rate is very important!

Is the failure to get a "life care planner" on a heavy case a mistake?

To me,(from my twenty years of trying cases plus my 5 and a half years of funding them) there are cetain "givens" when handling a case with a life altering injury:
1. Get strong narratives with opinions on causation, permanency, on whether the injury will continue to be pain producing and what are future medical needs...including medications etc;
2. Engage a good " life care planner";
3. Retain an economist ;
4. A vocational rehab expert and if the situation is right...
5. Get a usable/admissible day in the life of video.
If the plaintiff is terminal always do a videotape deposition to be utilized at the time of trial.
So is the failure to retain a "life care planner " a matter of litigation strategy or a failure to properly prepare your case? All I can say is if you can spend $2500 to increase the value of your case by $500,00, a million, two million or more....you do it.
Just make sure your treating or examining physicians recommend specific future medical care.
Remember; Protect yourself at all times!

Beware of Judges who don't understand the N.Y. Labor Law.

Just open up the Law Journal, read the advance sheets or look at your own cases; For every good decision by the Court, there is a "bad one". Yes, if you perfect your appeal, you can"right the wrong"....but this is expensive, time consuming and difficult to swallow for a client. Unfortunately, some attorneys don't even want to be bothered with an appeal...not good!
Recently another questionable decision was rendered on a 240(1) Labor Law case in Rodriguez vs D&S . In that case Justice Markey ruled that hoisting concrete slabs over a truck was not considered part of the work site.
Result: Summary judgment for the defendant. Read the decision....What do you think?

Medical malpractice Continuous Treatment Doctrine; Not a Gimmie.

We are all familiar with the "continuous treatment doctrine" in medical malpractice cases. Generally, if you are under the care of the same physician, for the same injury/condition without "excessive gaps in treatment", you may be able to toll/extend the statute of limitations period.
Well, the Appellate Courts have continued to "water down " this doctrine. Another published decision in this past's week Law Journal did just that. We know that in any case where there is the potential application of "the doctrine", you will most likely be met with a summary judgment motion.
Two suggestions;
1. Get full records before you agree to take a case and
2. MAKE SURE if you agree to prosceute a case with "a potential statute of limitations defense", you advise the client[with their acknowledgment ] in writing from the inception.

Remember, protect yourself at all times.

Settled cases; Get your funding, Get your funding.

There are going to be thousands and thousands of cases getting settled this time of year. With the medicare delays, tight economy and the holidays just around the corner there will be a need for funding for both client and attorneys alike.
If you want the fastest service, hands on professional treatment and low, low rates.....You've come to the right place. Try me!
After hours and weekend service available "like no one else".
24/7 service.

Celebrity Justice? Not all the time.

In my litigating career I have sued sports stars, rock stars, hip-hop moguls, actors, columnists, boxers, publishers , sports announcers, billionaires and more. Some were big hits....some were not.
While a celebrity is vulnerable on a "real case" , in my experience on a questionable case the celebrity will "hunker down" and hire the biggest, baddest and most skilled defense attorneys. Did anyone say Cravath, Swaine? Once the "high-powered " defense team is in place, your case better be worth it ....because you will be put to work like never before. Motions, rejections of discovery responses, notices to admit, interrogatories, perfected appeals; Well I trust you're getting the picture. Painful stuff!
So the next time you get a celebrity case, make real sure you've properly evaluated the merits, and "don't count your chickens before they've hatched". Because otherwise, you will kick yourself for ever getting involved in the God awful mess.
Been there; done it! Not fun.

In the Funding World, It's all about Credibility, Trust and Reliability.

When you are seeking funding for a client whose house is going to be foreclosed upon, you have no time for a fancy sales pitch, half-truths or maybes. You need to use a funder who in "crunch time" you know will get the job done. Well I'm the man for the job! My motto; Crediblility, Trust and Reliability.
As an attorney you should be looking for a funder who is credible[and has low rates], trustworthy and most importantly who you can rely upon to get the job done. In the more than 5000 funding transactions I have handled I bring to the table on every deal and every interaction these characteristics. Whether I'm dealing with the attorney , client or funder I take great pride in my work and I hope I am known for going to "the end of the earth " for my customers.
Ask around....then give me a try.

Funder's ; Beware of funding infant's cases, unless you get a Judge to authorize funding up front.

I've been getting a fair amount of calls from attorneys who are seeking funding for parents of infant-claimants. This type of funding in dangerous and full of many potential land mines. Basically I have encountered three scenarios;
1. Parents simply want to take an advance on the infant's case. This is impossible to do; unless you get a Court order[ex-parte order]authorizing this. The reason is simple. An advance can be made and the ultimate Judge compromising the case can disallow the funding;
2. Parent has their own personal injury cause of action(i.e. negligently performed chilbirth resulting in a ruptured uterus). No problems here;
3. Case is settled. Attorneys and carrier agree to a payment on parent's loss of services claim. This is still risky. The Judge presiding over infant's compromise can still disallow the apportionment of $ to the parent. Under that scenario, the funder would be stuck.
So next time you have a funding request along those lines, call me and we'll talk it out.
Good luck

Ten commandments to keep yourself out of trouble with clients.

1. Thou shall take /return all client calls.
2. Thou shall provide statuses in writing.
3. Thou shall periodically respond to client emails.
4. Thou shall communicate offers in writing to client.
5. Thou shall not be condescending to clients.
6. Thou shall make sure clients are properly prepared for all hearings/depositions.
7. Thou shall reject/turn down cases without merit.
8. Thou shall not promise the client the sun, the moon and the stars.
9. Thou shall not handle a case outside their field of expertise.
10. Thou shall have a closing statement prepared at the time the client signs a release so the client can see what he or she is taking home.
Believe me; this will drastically cut down on client complaints.