Watch out for Insurance Companies who prey on claimants in the days following the accident.

I was just recently looking at a funding deal; passenger, lumbar fusion, top plaintiff's firm and $1 million coverage and $500,000 respectively on the 2 cars. Looks fine, right? Well almost.
As it turns out the carrier with the $500,000 policy, a fews days post-accident gave the plaintiff $1,500 and had him sign a release. He was not represented by counsel at the time. Yikes!
So while everyone is proceeding in the case...this issue can be brought to the forefront via a summary judgment motion at any time. Of course the plaintiff was unrepresented, didn't know what he was signing and believed it was for medical treatment....but it still"lurks " out there. This practice is sneaky, underhanded and as far as I'm concerned should be outlawed by Insurance Department guidelines or statutory enactment.
How do we curb these tactics? Answer: Prohibit carriers, defendants or third-party TPA's from settling a bodily injury case directly with a claimant for the first 30 days post-accident. What do you think?

What do you do if a client agrees to settlement and then renegs?

We've all been down the road to hell, where the client agrees to a large settlement and then refuses to execute a release. Obviously the best thing you can do is to put it "on the record" in open Court and to have the client take the stand and agree to it. Unfortunately, thousands of settlements are not concluded in open Court, but over the phone, via email or at mediation. At a mediation, I would definitely have the client sign the mediation agreement. I'm not ashamed to tell you , when I practiced, I carried a blank release [and retainer] in my bag at all times. You can always pen in the information and substitute a nice "typed version" later on.
So here's the scenario. You have the client's verbal consent to settle a case for $ 3 million. Not only do you get the 3 million; but you get a higher offer to settle from the defense counsel of $5 million. Well I know what I would do...hop in a car, taxi or plane if necessary ,and that night have the client sign the release and all closing documents. Letting the client "think about it" is totally unacceptable.
You can also call the assigned Judge's Chambers and ask to be fit in asap to place a sizable settlement on the record. As soon as you hang up with the client immediately send them an email confirming the settlement.(They have to respond affirmatively via email) Then confirm via email that the settlement is being accepted by the client with the carrier or defense counsel ,or both. Have them countersign the writing.
Then , no matter what time of day, get all the closing documents prepared and let the client know you're on the way to their home to have the release[etc.] signed. Once it is signed, federal express the release, stip. of discontinuance and any hold harmless agreements to the defendants to start the clock ticking under CPLR 5003(a). You're now home free...lost in thoughts about your one third fee, referring attorney, taxes, etc.... Ah, bliss!

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.

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.

Medicare, It's Killing Me!

Remember the days when you would settle a case on a Monday with Allstate on Emmons Avenue, Brooklyn for $75,000. You would immediately have the client in, sign the release and your messenger would take the closing papers to Allstate and pick up the settlement draft "all in one fell swoop". Usually just in time to make Friday's payroll. Well those were the "good old days"; but no more.
With all the craziness and uncertainty surrounding the Medicare Law, settlements traditionally taking 21 days(see CPLR SEC. 5003(a)} now are taking 3-6 months or more for payment. It is obvious what the delays are doing to attoreys' otherwise strapped cash-flow. Killing it, that's what ! There is certainly no shame in requesting funding if this type of situation arises. Infants comps, death comps and supplemental needs trusts also can be devastating to "cash-flow".
So if a situation arises where your really strapped for operating funds, contact me and we'll explore some reasonable options to assist you.