THE DONALD TAKES THE FIFTH

 Posted on August 11, 2022 in For Lawyers

Former President Trump invoked his fifth amendment protection against self-incrimination today in the investigation by the New York Attorney General’s office into civil fraud claims.

Most likely, he was asked: “Did the Trump Organization provide one value to taxing authorities for Property X and a different value to financial institutions? Answer: I invoke my right not to answer.

Why is this significant in civil law? Well, the general rule is that a Criminal defendant invoking his fifth amendment rights is legally permissible and actually heavily protected. What does that mean in practice? Well, in a criminal trial, a defendant does not have to testify and a jury is told that they are to draw no inference about guilt or innocence from that decision. Even a criminal defendant’s refusal to speak with detectives about a crime is not allowed to be mentioned or discussed in front of a jury for the same reason. You have the right to remain silent.

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BROKEN WRIST WITHOUT SURGERY $43,000 vs. BROKEN WRIST WITH SURGERY $100,000

 Posted on August 11, 2022 in For Lawyers

Why is there such a huge disparity in settlement numbers here? Well, in most personal injury cases there is an element of pain and suffering that makes up most of the settlement claim. In the non-surgical case, the client may have pain and a splint or some period of healing. Perhaps after 8 weeks, they are better and back to work. Perhaps they complain of pain for the next nine months but get no therapy or care. The only evidence of pain and suffering is the client’s word. While we generally believe our clients are telling the truth, the defense will always argue that they are exaggerating the duration of pain and suffering for financial gain.

On the other hand or wrist, nobody would willingly go through a surgery for financial gain, or at least that is the commonly accepted belief. Further, no surgeon would conduct a surgery if it were not needed. So, surgery basically tells all involved that you had a real injury, that needed surgical repair and often with metal plates or screws etc. Surgery, however much it is needed, leaves scars and often results in arthritis or unpleasant sensations when cold weather approaches etc.

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SLIP AND FALL CASES

 Posted on August 11, 2022 in For Lawyers

These cases often are the most challenging cases for a personal injury lawyer and client. Why? Well, there is always some allegation that the plaintiff could have avoided the trip and fall or whatever caused their injury. Most of the cases of this type that I handle are falls on black ice, falls caused by uneven sidewalk blocks, and often falls caused by shoddy repairs that are not to code. None of them are complicated fact patterns.

For example, I settled a case last year where a cement sidewalk block was repaired by a landlord and his contractor. In order to set concrete, you need a wood frame supported by metal stakes in which to pour the concrete. In my case, the concrete set, but the rebar and wood frame were never removed. The client caught a foot on the unexpected rebar sticking up and fell breaking her arm. In another, steps at a church were replaced by a contractor who did not follow the building code. The steps were uneven and different height steps are something that our brains do not process well and my client broke her hip. During discovery, the church argued that the steps were never repaired, but holes in the concrete that were repaired showed that the handrail was moved and the case settled after my client testified.

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DEPOSITIONS

 Posted on August 03, 2022 in Case Matters

Sample of Witness Deposition

Depositions are really the best way to get information in a civil case. There are interrogatories and other written responses that begin to tell me about a case, but they need to be explained by a live person. Further, most of my cases are not document dependent.

Below is a link to a routine deposition I took in a motorcycle crash case that recently resolved. I share this for you to see that these are dry proceedings that are important to the lawyers, but not particularly exciting. They are certainly unlike anything you see on TV or in the movies. This deposition was of a police officer who was the first responder to a motorcycle crash, where my client hit a pothole off of the Schuylkill Expressway at Exit 346C Vare Avenue. He was ejected from his motorcycle and died the following day.

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CONTEMPT AND SANCTIONS

 Posted on August 03, 2022 in In the News

Steve Bannon found guilty of contempt. Photo Credit: THE HILL.

Steve Bannon was convicted of contempt. This is a pretty rare thing in my experience. Most often, contempt charges are used in criminal cases or very unusually in civil or national security cases.  There is an old adage that a person charged with contempt holds the keys to their own jail cell. Contempt findings are usually used to force reporters to reveal sources or mob associates to cooperate with the government once they have a cooperation agreement in place.

Essentially, once you are faced with a contempt hearing, meaning the possibility of contempt charges or findings, most people cave and do what the opposing party wants them to do.  The Court’s role is just to find if you have disregarded or sought to frustrate the normal judicial process.

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THE WHEELS OF JUSTICE GRIND SLOW BUT GRIND FINE

 Posted on August 03, 2022 in For Lawyers

Old oil mill, millstones and and mechanical press.

Sun Tzu gets some credit for this pithy insight as does someone named Sextus Empricus who wrote “The mills of the gods grind slowly but exceedingly fine.” What does this have to do with legal practice. Well, for starters, nothing moves quickly in personal injury law. That was true before the pandemic and is more true now. We live in a rapid response world, where I can order cycling tights on amazon and have them the next day. So, we grow accustomed to things being done yesterday. However, every time I meet a new client, I have to take the time to explain that getting to the end of your case will take months, if not years.

My average case takes about 9 months. More serious cases take 1-3 years. So, if you are looking for a quick buck, you have come to the wrong place. But, with that being said, about 94% of personal injury cases settle without going through trial. So, odds are that you will get a favorable settlement, but odds are that it will take time. Why so much time? Well, a whole series of factors delay the progress of your typical case.

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RECESSION WATCH

 Posted on July 20, 2022 in In the News

 

The recession is coming, whether we like it or not. I am not an economist, but have been around long enough to see the signs. If the stock market is selling off, home prices are cooling, Amazon is laying people off, and layoffs are starting to creep into the news, one should be on recession watch. We have been in a year or two of wildly low unemployment. If you want a job and do not have one right now, go find one because events are going to turn against you soon. Inflation may fall, but once business gets a whiff of recession, their first reaction is to stop hiring or lay off five percent of the workforce. I deal with people, lawyers, clients in all walks of life. I think that personal injury law is actually one of the few practices along with bankruptcy law to thrive in recessions. People who are injured, but employed are less likely to call me than when they are out of work and desperate for cash. So, when the economy tanks, calls ramp up. Just be warned and be careful.

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PICKING THE CASE: What Makes A Medical Malpractice Case?

 Posted on July 20, 2022 in For Lawyers

What Makes A Medical Malpractice Case?

Damages, damages, damages. If you are calling me about your own medical malpractice case, then I am instantly concerned whether you have sufficient damages to pursue a case. Conversely, if someone else has to call for you or you died, you are more likely to have a case worth pursuing. Why? These are expensive and long cases to pursue. Plus, physicians are entitled to make judgments, rightly or wrongly at the time of treatment. They don’t know how things will turn out and a jury will be told not to judge them in retrospect. They did not know that that spot was not a bone island but rather a mini tumor. It is easy to see in retrospect, but that is not how these cases are judged.

As I tell most people, you don’t want to have a medical malpractice case worth pursuing. So, in my view, you had better have a lifetime of pain and suffering or lost a body part or died before your medical malpractice incident meets criteria to become a case. I field five calls a week from people who are incensed by the poor care they received. They are right. People get crappy care. But, crappy is not the standard for a lawyer to take your case. Crappy care with devastating results is the standard to me.

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“I play for money”- Joey Knish

 Posted on July 20, 2022 in For Lawyers

In the epic poker film Rounders, Matt Damon plays the young flash in the pan superstar who wants to win it all. Joey Knish, Turturro’s character, is the classic poker grinder, who watches his money, makes good bets on good risks and doesn’t chase cars, ego etc. When Damon needs his help, Knish is there for him, but won’t lend him money. Knish says: “I got alimony, child support, rent” etc.  The message is….. Damon is a bad risk.

I have always looked at plaintiffs’ personal injury practice as a game of poker. The insurance companies are the house and the house usually wins. Big bets against the house are usually not a good plan for long term success. Instead, prudent playing of risk and reward is what generates long term success for the lawyer and client.

Clients do not want their injury compensation to be in the hands of a jury of strangers. No matter how strong they feel their case is, few people are Matt Damon and love the risk. Some people are forced into the trial setting because the insurer is making a bad decision, but few embrace a jury trial. Clients want a fair settlement in a timely manner.

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Ch Ch Ch Changes

 Posted on July 14, 2022 in For Lawyers

As David Bowie sang, “Time may change me, but I can’t trace time.” Many of us as lawyers get up every day and run our firms or work on our cases, trying our best to keep clients happy and the airplane flying while repairs are underway on the fuselage. There are always positive changes to be made. Always! And, with everything, there are lessons to be learned from mistakes, misjudgments, and challenging situations. My practice is different looking now than it was ten years ago. I expect it will be different in ten years from how it looks now. But, the changes are hard to subtle and take years to become apparent and as Bowie sings, they are hard to untangle or put a finger on. I have an economically better off clientele than I did ten years ago for various reasons.

My first clients were brought to me by my kids’ nanny, a great lady named Sheila Cupit, who has since passed on. Sheila was a force of nature and a committeeperson in Norf Philly. (That’s Philly lingo for you non-Philadelphians) (Wolf, the animal and governor is pronounced Woof here).

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