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Why Do Attorneys Charge Contingent Fees?

Alison De Villiers — Wed, 16 Sep 2009 08:49:14 GMT

What are Contingent Fees?

A client pays a contingent fee to a lawyer only if the lawyer handles a case successfully. In a contingent fee arrangement, the lawyer agrees to accept a fixed percentage (usually 1/3) of the amount finally paid to the client. This percentage must be a reasonable amount given the circumstances of the case. If you win the case, the lawyer's fee comes out of the money awarded to you. If you lose, neither you nor the lawyer will get any money, but you will not be required to pay your lawyer for the work done on the case.

What are the Benefits of Contingent Fees?

In most cases, a client will not pay any upfront costs for legal representation in a contingency fee arrangement. Filing fees, copying costs, long distance charges, computerized legal research, deposition costs, and mediation expenses are also costs of a lawsuit and sometimes expert witness fees can cost anywhere from $1,000 to $30,000+. Most clients cannot afford to pay these expenses and would not be able to pursue their claims if attorneys could not advance the costs. Fortunately, in a contingent fee arrangement the lawyer will pay these expenses for the client and be reimbursed if the client’s case is successful. This allows many people access to justice who would not be able to afford it if the lawyer charged by the hour or demanded payment upfront. In addition, if the case is unsuccessful the lawyer gets no fee. Therefore, there is an absence of risk for the client, because they will owe the lawyer no attorney fees if they do not win their case.

Another advantage of a contingent fee arrangement is that it aligns the interests of the client and the lawyer. The lawyer is motivated in a contingent fee arrangement to maximize the amount of money the client will receive. In a common fee arrangement, where the lawyer is being paid by the hour, it makes little difference whether the client wins or loses her case. In a contingency fee arrangement, because a lawyer’s fee is tied to the success of a client’s case, the client can be assured that the lawyer is putting in the time and effort to get the best result possible for the client. Furthermore, the fact that a lawyer has taken a case on a contingency fee basis reflects her belief that the case is strong and has a likely chance of succeeding. A lawyer would not advance the costs of a case she was certain she would lose. She would be out of business quickly if she did.

Why do Lawyers Charge Contingent Fees?

Lawyers charge contingent fees because it allows many clients to bring lawsuits they would not have been able to afford otherwise. By taking fees and costs out of the money awarded to the client, the lawyer can pay the expenses of going to trial so the client doesn’t have to. If the client loses, she pays nothing for attorney fees (must usually reimburse the lawyer for the costs) and the lawyer gets nothing. These cases entail big risks for the lawyer, but little for the client. A contingency fee assures the lawyer that she will be compensated for the risk she has undertaken. As a client, it is beneficial to talk about the proposed fee arrangements with your lawyer from the very beginning. Make sure the arrangement is in writing and that you know why your lawyer is requesting the contingency fee she is requesting. You’ll find that your lawyer wants you to get the money you deserve just as much as you do.

Originally posted at InjuryBoard by Alison De Villiers

Who Does Tort or Medical Malpractice Reform Really Benefit?

Alison De Villiers — Tue, 15 Sep 2009 10:24:17 GMT

We have been told repeatedly over the years that medical malpractice claims are destroying the business of healthcare. Various groups have advanced this claim at various times, but the usual suspects are insurance companies, doctors, and conservative politicians. Today, let’s take a look at the insurance industry and see if we can’t sort out some of their claims. Perhaps we can take a look at the other groups a bit later.

Insurance companies claim that medical malpractice claims are the primary driver behind the high prices doctors pay for insurance. This seems reasonable, if the cost of being a doctor goes up, either doctors will stop being doctors, change to less risky fields, or pass the costs along to the consumers of healthcare. It is true that malpractice insurance premiums have drastically increased over the last 25 years. Are these price increases being driven by lawsuits? For this charge to be true, either the overall number of claims must have increased or the awards for individual judgments must have increased massively. If increases in damage awards were responsible, then one would expect to see lower payouts and lower premiums in states that have statutorily capped such damage awards. So, when we do the research, do we see such an explosion, of either claims or payouts? The short answer is no, we do not.

A study of malpractice claims in Texas 1988-2002 found after controlling for inflation and population growth that there had been a decline in the number of small claims (under $25,000) and that the number of large claims had remained roughly constant. In addition, the amounts of those paid claims only rose 0.8-1.2 percent per year. As for the effects of capped non-economic damages, one national study found that while payouts did decline in the nineteen states that then had caps, premiums in capped states rose far faster than those in uncapped states. In states with statutory caps, the median annual premium increased 48.2%, while those states without caps saw a median increase of only 35.9%. This suggests that while something is driving premiums higher, it isn’t malpractice claims. A slightly more recent bit of research shows that nationwide the number of claims declined by four percent between 1995 and 2000. (pages 24-25). Declining numbers of lawsuits doesn’t sound like a crisis.

So, from the perspective of the insurance companies, what is driving up the cost of insuring doctors? According to Martin Weiss, an analyst with Weiss Ratings, Inc., there are several factors, including: increases in the cost of medicine generally, the cyclical nature of the insurance market, a need to shore up capital reserves for policies already in force, and a decline in investment incomes due to poor investment choices. (pages 9-11). These are all real forces, and it is utterly rational for the insurance industry to raise its prices in response to them. What is wrong is for the industry to hide those increases behind a smokescreen of some phantom ‘crisis’ of lawsuits.

The tort system as we know it has existed for centuries. Its goal is to ensure that when a person is injured through no fault of their own, that the person responsible for the injury restore them to health. A secondary goal is to discourage negligence in general. It is difficult to argue with the morality of either of these goals. We want a society in which people are personally responsible for their behavior. Tort reform is about severing responsibility for causing an injury from the person who caused it. Insurance companies would have us do this as a mere convenience, so that they need not explain why they are raising their prices. This is an unacceptable reason for fundamentally altering a massive chunk of our legal system, one that has long served us well.

Perhaps the best way to end this is to ask who tort or medical malpractice reform doesn’t benefit? The answer to that is simple: consumers.

Originally posted at InjuryBoard by Alison De Villiers

The Impact of Negligence Laws in Ohio on Personal Injury Verdicts

Alison De Villiers — Mon, 03 Aug 2009 09:07:55 GMT

Every industry has its jargon, its inside jokes, its own language, if you will. We see this in medicine, philosophy, even plumbing contracting. The law is no exception to this. What often looks, to a layperson, like confusion for the sake of confusion, is generally the result of efforts to gain technical precision. Sometimes this results in the creation of words that normally only lawyers use, like the word ‘tort.’ Sometimes it results in lawyers using common place words in a completely different or more specific way, as with the word negligence.

Since many of us will at some point in our lives be involved with the legal system, as a plaintiff, defendant, or member of a jury in a civil trial, let’s try to unpack some of these terms and see if we can’t clear the air a bit. This will be a sketch of the broad outlines of negligence. Specific details may vary widely from between jurisdictions and if you are actually injured you should always consult a personal injury attorney familiar with the laws of your jurisdiction.

Let’s begin with a very brief thumbnail sketch of tort law. I won’t delve into specific cases, though if you are interested in truly bizarre injuries throughout history, you will find tort law fascinating.

A tort is simply an injury (it was originally a Latin word which entered English via French during the Middle Ages) that doesn’t arise out of a contractual or criminal matter. The most common tort today is negligence. Negligence, in a legal sense, has four parts: a duty of care, a breach of that duty, the breach must not be too remote a cause of an injury, and the breach must in fact do harm to someone.

Under the common law, if an injured party (a plaintiff) bore any responsibility, even one percent, for his or her injuries, there could be no recovery. This theory of negligence is known as contributory negligence (CN). If a cyclist continues to ride a bicycle despite knowing that the brakes do not work and accidentally rides into the street and is injured by a driver who is speeding, the cyclist was traditionally barred from recovering any damages from the negligent driver. Most people today find this system fundamentally unfair, and it has grown increasingly unpopular, with only four states and the District of Columbia still using it in its purest form.

At the opposite end of the spectrum is what is called the “pure comparative fault rule” (PCF). What this means is that you, the plaintiff, can always recover, even if 99% at fault, but that your recovery will be reduced according to your degree of fault. If a jury finds that $10,000 worth of damage has been done, with Andy 40% at fault and Elaine 60% at fault, Elaine can still recover damages, but her judgment will be reduced by 60%, for a net recovery of $4000. Thirteen states use this rule.

The remaining 33 states use some form of the “modified comparative fault rule” (MCF), which is a middle way between the pure comparative fault and contributory negligence standards. In these states, any damage award will be reduced by the plaintiff’s degree of fault, just as in a PCF system. However, if the plaintiff’s fault exceeds a certain threshold, all recovery is barred. This threshold varies by state, but is generally either fifty or fifty-one percent.

Common law is generally controlling, unless superseded by statute, so most states have enacted statutes choosing one of the above theories. In the case of Ohio, the legislature has chosen to adopt a modified comparative fault rule, with a fifty-one percent threshold. A potential difficulty with the sort of damage rule Ohio uses is that a jury can attempt to take matters into their own hands.

In theory a jury should award the same amount of damages regardless of the assigned percentages of fault. The plaintiff’s recovery will then be reduced by the court. Often however, in cases where the plaintiff bears a relatively large amount of responsibility for injuries, juries may mistakenly want to preemptively reduce the total amount of an award before the court has a chance to. This is a misinterpretation of Ohio law, and it is something of which a good attorney will be mindful.

Originally posted at InjuryBoard by Alison De Villiers

How To Ensure Your Deck is Safe for Summer Gatherings

Alison De Villiers — Tue, 28 Jul 2009 13:32:00 GMT

Let's face it. Summers are for the outdoors. From backyard bbq's to porch parties, the deck can be the centerpiece of a home for this time of year. Unfortunately, many homeowners take it upon themselves to build their own decks with little or no construction experience. Other homeowners fail to inspect their decks for safety isues. For these reasons it is estimated that between 2002 and 2007 there were 350 injuries and 17 deaths solely due to deck failure.

There are two main reasons for deck failure: poor railing construction and poor connection to the house. If any of these five signs appear then it may be time to call in a professional: loose connections (for example, a wobbly railing), missing connections, corrosion, rot, or cracks.

According to Jim Bushart of the National Association of Certified of Home Inspectors:

My recommendation is that home owners perform an annual inspection of their deck to ensure that the deck ledger board is securely anchored (with bolts…not nails) to the floor joist of the house and that all fasteners are free from rust and deterioration. If you detect or suspect movement of the structure from its original construction, contact a qualified and competent contractor immediately.

If you are purchasing a new home, always have the home inspected by a qualified home inspector. Pay close attention to any comments made as to the condition of the deck and ensure that it is safe when you move in. By simply keeping a close eye on the integrity of the structure many accidents are preventable.

The North American Deck and Railing Association has a checklist of situations to look for. Remember, if you're considering building a deck it's better to hire a professional to build in the first place. With the size of modern decks, more people than ever can be subject to injury by deck failure.

So remember safety first this summer and have a great one!

Originally posted at InjuryBoard by Alison De Villiers

Boating Safety on the Ohio River

Alison De Villiers — Wed, 01 Jul 2009 10:05:29 GMT

Summer and boating seem to go together, especially on the Fourth of July. Having fun on a river or lake with friends and family creates the setting for wonderful summer memories. In order to make sure that those memories are not marred by accidents, injuries or other tragedies, however, it is important to remember some basic boat safety and to understand the laws that govern boating particularly on the Ohio River. The Ohio River is unique in that it may be governed by Ohio law, Kentucky law or the maritime laws of the United States, which means that boaters are required to comply with all United States Coast Guard requirements, depending on the circumstances.

Firstly, it is important to remind boaters that operating a watercraft while under the influence of drugs or alcohol is not only extremely dangerous but it is also illegal in most states. Drinking while boating can be particularly problematic because often boaters are dehydrated from being out in the sun all day which can cause alcohol to affect the body more strongly. Secondly, while it is ideal for all passengers on a water craft to wear a life vest, it is extremely important that children always wear a life vest; not only will it help them to stay afloat, but it will also make them visible in the water- both to assist in rescuing them should they fall overboard and to ensure that other boaters can see that they are in the water. When trying on a life jacket for a child, always check that it is snug and if you pick the child up by the shoulders of the life jacket, be sure that their chin does not slip down through the vest; this ensures that you have a proper-fitting vest.

Also, with regard to children and minors, it is against the law on the Ohio River for any child under the age of twelve to operate any personal watercraft at any time. A child aged twelve to fifteen requires an education permit and a person who is eighteen or older to be on the personal watercraft with them to operate. Minors who are sixteen or older only need to have the education permit in order to operate a personal watercraft. Minors who are at least twelve years of age may operate a manual watercraft such as a kayak or canoe. When it comes to powered watercraft other than personal watercraft children under twelve generally need direct audible and visual supervision of someone over eighteen but are not required to have an educational permit, though it is recommended for all minors who are operating any manner of watercraft. A boater who was born on or after January 1, 1982 is subject to Ohio’s mandatory Boater Education Law which requires the completion of a boating course or proficiency exam in order to operate a boat powered by more than ten horsepower.

With regard to general boating safety and regulations, it is important to know where “no wake zones” are as they are strictly enforced, especially on holiday weekends. On the Ohio River, a watercraft must travel at idle speed if it is within 300 feet of a marina, gas dock or launching area and any non-commercial watercraft must travel at idle speed between sunset and sunrise. This is an important change in the laws governing the Ohio River as Kentucky law used to only require a 100 foot no wake zone. Remember also to operate your boat in accordance with the following simple regulations for general boating use: a boat traveling downstream has the right of way over a boat traveling upstream, recreational boats must yield to commercial boats, when traveling in narrow channels, always stay as close to the right side of the channel as possible and finally, boats which are leaving a launch or tie-up point are required to yield to those boats which are coming in.

Also note that all recreational boats in Ohio, including manually-powered boats such as kayaks, require registration which can be obtained online or in person. Finally, while it is not a law, it is recommended that all boaters install on their boats a ship-to-shore radio which can assist rescuers and emergency personnel in rendering aid should you find yourself in trouble out on the water.

Boating is fun, relaxing and a great way to build summer memories; if everyone obeys laws, regulations and uses their common sense, the waterways can be a fun and enjoyable place for everyone to use. Click here for more information on boating on the Ohio River.

Originally posted at InjuryBoard by Alison De Villiers

Fourth of July Firework Safety

Alison De Villiers — Tue, 30 Jun 2009 19:40:48 GMT

With the upcoming fourth of July holiday, Americans look to enjoy a long weekend of celebrating our nation’s independence. Most will get together with families, friends, and fireworks. Unfortunately, thousands of people are treated each year for injuries sustained while using fireworks. Many of those injured are amateur firework artists who put themselves and others in danger.

Approximately 11 people each year die from fireworks and over nine thousand are treated in emergency rooms for firework related injuries in the United States alone. Of these, more than two thirds happen between the dates of June 16^th to July 16^th. One of every three people injured is a child under 15, and three times as many males are injured as females.

Injuries sustained while playing with fireworks include blindness, third degree burns, and scarring. Fireworks have also been known to cause life-threatening residential and motor vehicle fires. The most dangerous firework products are firecrackers, which cause approximately 1,300 injuries per year; sparklers, cause approximately 1,000 injuries; and rocket-style firecrackers, which cause approximately 800 injuries.

To protect yourself from firework related injuries make sure to only purchase those fireworks that are legally available for the public for purchase. Buying fireworks close to state boarders where regulations might be more lenient, or buying types of fireworks that are illegally sold in the United States could increase your probability of injury. The majority of injuries occur from individuals remaining too close to the fireworks after being lit. Curiosity and experimentation can lead to unpredictable explosions and increase your chances of being injured.

The Federal Hazardous Substances Act prohibits the sale of dangerous types of fireworks and their components. These banned firework types include M-80’s, quarter and half sticks, and the majority of large fire crackers and rockets.

Enjoying and celebrating this national holiday is as American as apple pie. But make sure that your holiday is not only fun, but safe. Ensuring that all those watching or playing with fireworks are safe will allow everyone to have an enjoyable holiday.

Originally posted at InjuryBoard by Alison De Villiers

Insurance Companies Will Be There? For whom?

Brett Goodson — Sun, 28 Jun 2009 22:17:42 GMT

It was impossible to turn on the radio, a television or go online this weekend and not see the news. Michael Jackson, the king of pop himself, died at the age of 50. The headlines were everywhere, but so it seems, was something else. A commercial (see below) appeared on all the major news networks during what seemed to be every commercial break. It features a young Michael Jackson, during his Jackson 5 days, singing “I’ll Be There” and it’s doubtful the relation to the major story of the day was purely coincidental. If you haven’t seen it yet, the commercial is for a major insurance provider and features images of people who appear to have just suffered a devastating loss and the insurance company coming to the rescue. It also includes images of candle light vigils, soldiers returning home presumably from Iraq or Afghanistan, and cancer benefits, among other things.

Commercial

Perhaps I’m too cynical, but being familiar with the insurance industry’s unwritten policy of, “Deny, Delay, Refuse & Confuse,” I’d like to take this opportunity to suggest some new lyrics that may be a bit more appropriate for an insurance company commercial:

I’ll be there (to instruct contractors to alter damage reports and undervalue claims in Oklahoma following a tornado and in Mississippi following Hurricane Katrina so the company can refuse coverage to policy holders).

I’ll be there (to suddenly refuse coverage, after providing it for 8 years, to a boy with a crippling neurological condition that forces him to function at the level of an infant based on a report by a obstetrician/gynecologist).

Just call my name, and I’ll be there (to initially deny a claim for a liver transplant, stating it was not “appropriate,” only to approve the transplant mere hours before the teenage patient died from her illness).

Granted, the Jackson 5 version is catchier, but as far as insurance companies go, the above version may be more accurate. Insurance companies have their "good hands" out to collect your premium but put on the boxing gloves if you ever need to make a claim.

Don't allow yourself to be cheated by insurance company claims practices. You have rights which can be enforced in a court of law.

Originally posted at InjuryBoard by Brett Goodson

Suicide Prevention

Stephanie Day — Tue, 23 Jun 2009 16:59:24 GMT

The rule of thumb is that every threat and sign of suicide should be taken seriously. It's better to err on the side caution. Some warning signs that a person may be in danger of suicide include: talking about suicide or death, giving verbal cues such as, "I wish I were dead" and "I'm going to end it all," and giving less direct verbal cues, such as "What's the point of living." Individuals who suffer from depression, anxiety, and alcohol abuse are at a higher risk of commiting suicide.

If faced with a suicidal person, call for emergency assistance and stay with the person until assistance arrives. The ideal situation would be that the person at risk for suicide would agree to appropriate teatment for his or her underlying depression, anxiety, or other mental health illness or substance abuse problem in order to reduce or eliminate the risk of suicide.

For more information on preventing suicides seewww.ohiospf.org/about

Originally posted at InjuryBoard by Stephanie Day

What Jurors Probably Don't Know About Defense Medical Experts

Alison De Villiers — Mon, 22 Jun 2009 12:35:30 GMT

When a Plaintiff is injured due to the negligence of another, the Plaintiff must rely on her doctors to testify as to the nature and extent of her injuries. In most states, like Ohio, the attorney for the Defendant/insurance company is then allowed to hire a doctor to examine the Plaintiff and render an opinion on the nature and extent of the Plaintiff's injuries. In the Cincinnati area, my clients are repeatedly sent to the same few doctors to be examined. It is extremely rare that one of these doctors will agree with the Plaintiff's treating physicians regarding the extent of the Plaintiff's injuries.

To the typical juror, the defense medical experts may seem to be on equal footing as the Plaintiff's treating physicians. The attorney for the Plaintiff can do her best to show how much the defense medical expert is being paid for his time and how much that equals out to per year. But, it seems to have little effect on jurors. The defense attorneys often argue: Why would this doctor risk his medical reputation by sticking his neck out for me or my firm in this case?

What the jurors do not know is that if the defense medical doctors start agreeing with the Plaintiff's doctors, the attorney for Allstate or State Farm will not be as inclined hire them to do defense medical exams. Lose one insurance company and that could equal hundreds of thousands of dollars per year in lost income.

Although this article written for doctors about serving as an expert witness in cases was written in 2003, the information remains relevant. It emphasizes the high ethical obligations of medical expert witnesses, both for the Plaintiffs and the Defendants. It points out that one of the main problems in the legal system in regards to expert testimony is the lack of accountability for statements made by expert witnesses under oath. The article suggests peer review of expert witness testimony to ensure that it is medically sound. Another suggestion is to have court appointed defense medical examiners.

Originally posted at InjuryBoard by Alison De Villiers

Ohio Judicial Campaign Contribution Conundrum

Brett Goodson — Mon, 15 Jun 2009 16:00:02 GMT

The recent Supreme Court decision in Caperton v. A.T. Massey Coal Company may have elected judges checking lists of their major campaign contributors against upcoming cases on the docket, but what will be the lasting impact? (Click Here for more information) Caperton concerned Justice Brent D. Benjamin of the West Virginia Supreme Court and his refusal to withdrawal from a case in which one of the parties, A.T. Massey, had been a major contributor in his campaign for a spot on the West Virginia Supreme Court. A.T. Massey had contributed close to $3 million in an effort to unseat the incumbent that then candidate Benjamin was opposing. After winning the election, Justice Benjamin refused to remove himself from a case involving A.T. Massey. He sided with A.T. Massey (resulting in 3-2 decisions) on two separate occasions, each time throwing out a $50 million jury verdict. Writing for the majority, US Supreme Court Justice Anthony Kennedy called the facts “extreme” and that the situation reflected poorly on the West Virginia judicial system.

Like West Virginia, Ohio conducts elections to fill the seats of its Supreme Court. And like West Virginia (as well as every other state that fills its Supreme Court via election), Ohio has its fair share of campaign contributors. Of the 7 current members of the Ohio Supreme Court, 5 count insurance companies as their top organizational contributor. These contributions ranged from $29,000 to $124,000 during the 2008 election. Perhaps more disturbing is a 2006 New York Times article which found Ohio judges rarely removed themselves from cases involving campaign contributors and on average decide in their favor 70% of the time.

A great fictional novel to read this summer is John Grisham’s, The Appeal. The book describes how easy it is for business and insurance companies to influence judicial elections which can in turn help them increase profits and obtain favorable rulings from the judges they helped elect. While this subject matter is disturbing, the book is a great read.

The Caperton case should not be read as a broad sweeping indictment on the practice of electing state Supreme Court justices. Even Justice Kennedy made sure to point that not every contribution to a campaign should be viewed as a potential source of bias. However this decision should be used as a starting point for a larger discussion on the place of elections and campaign contributions in the judicial system. In an encouraging sign, Ohio Supreme Court Chief Justice Thomas Moyer is calling for a new judicial ethics policy at the state's highest court in response to the US Supreme Court’s holding in Capterton.

Originally posted at InjuryBoard by Brett Goodson