by Thomas Gagné | May 26, 2019 | MCLE
Credit Hours: 1.18 MCLE credits
Join Thomas Gagné on winning strategies and tips in workers compensation practice.
Thomas will provide with their potato guidance and answer the following questions for you and your clients on:
- The importance of the initial intake.
- To develop a case very early on in the process
- Getting unauthorized medical bills paid
- Third party practice issues
- The importance of diagnosis and managing the medical aspects your case and in developing case theory
Photo by Bill Oxford on Unsplash
by Thomas Gagné | May 26, 2019 | MCLE
Credit Hours: 1 MCLE credit
Tom Gagné’s how long presentation focuses on claimants attorneys with at least three years experience litigating negligence and workers compensation claims.
new attorneys should not miss out on this valuable information!
Photo by Harlie Raethel on Unsplash
by Thomas Gagné | Apr 26, 2018 | Know The Law
Thomas Gagné
Many people think that hiring an attorney is synonymous with filing a lawsuit and then ultimately taking the case to trial. Nothing can be further from the truth. This impression is created by the media, in shows like Law and Order, where the crime is investigated, the criminal arrested, and the jury delivers its verdict in a few days if less.
First of all, a large percentage of lawyers, probably the majority, are what’s called transactional attorneys. These lawyers engineer things like corporate buyouts, mergers, real estate sales, sales of equities — pretty much anything to do with money and business. These lawyers rarely, if ever, see the inside of a courtroom. And if a lawsuit does spring from their work, transactional attorneys, as a rule, won’t be responsible for the suit. The parties will hire attorneys who specialize in business litigation. The stakes can be huge, say, a lawsuit alleging a corporation monopolizes a particular industry, or relatively modest, say, a suit alleging a fiduciary breach by a partnership grossing 100k a year.
Of course, business litigation isn’t the only type of litigation. There’s domestic litigation (divorce), criminal litigation, constitutional litigation, environmental litigation, personal injury litigation, and the list goes on. I happen to be a personal injury lawyer, and yes, I try cases in court, but not as many as I used to.
Litigation rears its ugly head when parties cannot agree on a solution to their conflict and must cast their issues before a judge and jury whom they’ve probably never met. It’s akin to letting a bunch of strangers decides what color to paint your living room when you want yellow and your wife wants eggshell.
What happens is this. A conflict arises between a party or parties. The parties try to solve the problem themselves, but because they are amateurs, at best, at this sort of thing, they just end up making the problem, and their positions relative to the problem, worse. They think that are saving money by not hiring professionals, i.e., lawyers, or they think that if they hire a lawyer it “raises the stakes” of the conflict, or will alienate the other side, and this frightens them. By this time it dawns on one or both of the parties that they need a lawyer. So they come into the lawyer’s office and lay the mess on the lawyer’s desk.
The lawyer, who probably wants the business because there are too many lawyers, and competition for business gets worse all the time, has to immediately file suit to protect himself from malpractice because his client has waited so long the statute of limitations is about to run.
The lawyer files what is called a complaint, which simply identifies the parties, who’s done what do whom, the specific facts of the case, and what the aggrieved party wants. That’s it. No magic. But the complaint opens a Pandora’s box of work for the attorney. Some litigation can go on for years. I’ve seen boxes piled to the ceiling in some cases. And I had to ask myself — is all this really necessary? And I’m not blaming lawyers. They’re as much caught up in the structure of what still amounts to a litigious legal system — filing, prepping for and going to trial — as any other player.
There’s an apropos quote in the movie, A Civil Action, when the protagonist/narrator attorney, played by John Travolta, defines a lawsuit as a game of chicken in which the parties spend way too much time and money on their case until the most reasonable party cries “Uncle!” — and then settles.
In the movie, the attorney alleges that a town’s water supply, supposedly polluted by the defendants, caused cancer in the town’s children. He rejects a 20 million dollar offer to settle primarily because he did not want to appear weak before his “white shoes” opponent, in spite of the fact that the offer was actually reasonable given the strengths and weaknesses of his and his opponent’s cases. The point is that, too often, litigation is a product of ego, a party’s ego, or in the most dangerous instance, an attorney’s ego. These people have something to prove, and in the process blind themselves to realities. Litigation ceases to be about building a sound case, seeking truth and just compensation, devolving instead into a game of poker — who’s bluffing whom? Who’s “the man?” Most adults think they are, well, adult, but most adults are a scratch away from infantile emotions manifested in adolescent behavior.
I do not mean that all cases should settle. Far from it. Sometimes the other side is acting so unreasonably in the face of credible, overwhelming evidence that the only option a litigant has is to go to trial. But I’m here to tell you that such cases are in the minority.
Now, the reality is that a tiny fraction of filed lawsuits ever makes it to trial. So what am I banging on about? My point is that even within that tiny fraction, the majority of those cases should have settled.
Luckily, legal culture has progressed, as well it should, as it is a discipline devoted to reason. Yes, reason fails sometimes. Yes, sometimes what sounds reasonable yields absurd results; yet, even with the corruption, the power plays, the pure politics of law, not to mention the pervasive black humor of the Universe, I believe the law (at least of the Anglo-American variety) transcends time, persons and politics and gets better. Think how foreign Miranda warning requirements would sound to a 19th-century jurist.
And as far as the law’s attitude toward litigation, we are transitioning from a legal culture centered on the trial to one centered on negotiation.
When I was in law school instruction in negotiation was not even offered, which is extremely odd as negotiation strategy and tactics are critical to resolving conflicts, especially ones which rise to the level of litigation. The “negotiation is common sense” argument fails as shown by the current proliferation of negotiation studies in law schools, especially it’s elaboration at leading schools like Harvard and MIT (see The Negotiation Project), as well as the growing number of certified mediators and arbitrators — lawyers, even non-lawyers, trained to help litigants reach a solutions, not to mention new rules requiring ADR — Alternative Dispute Resolution — as a condition precedent to trial.
This can only mean good news for the judiciary. Judges will be able to focus on cases properly brought before them — cases of a new impression which develop the law. For lawyers, unbiased mediators can help define critical issues, uncover strengths and weaknesses in litigants’ cases, and suggest novel solutions. For client/litigants, it means less expense, speedier results, and, hopefully, less stress and anxiety.
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by Thomas Gagné | Apr 2, 2018 | Personal Injury
The goal of making a claim and/or suing for damages is to compensate an injury victim. To compensate means to balance out. A person is injured as a result of another’s actions or lack of action. The new post accident state of affairs is out of balance – the injured party has lost something – in the form of impaired health, medical bills, lost wages, vocational impairment and so forth.
The question then becomes how do we, as a society, redress this imbalance? Well, let’s see. I suppose one way to balance the imbalance is to go back in time before the injury occurred and somehow prevent the actions and circumstances which gave rise to the injury in the first place. Now stick with me. I don’t want to come off as facetious. Let’s conduct a “thought experiment” to help us answer the question — isn’t personal injury law all about the money?
If time travel were possible, would an injury victim, or “claimant” opt for what amounts to be a “mulligan,’ i.e., a do-over? I submit she would and I’ll give you my reasons.
There are very few things in life as important as good health. I think we all can agree on this. One’s very livelihood flows from good health. If we cannot work due to ill health, most other aspects of life soon falter — our shelter, security, ability to pay for necessities like electricity and water, well, you get my drift.
Once any reasonable person realizes the critical role good health plays in her well-being, she will naturally do all she can to safeguard that commodity. Accordingly, if it were possible to go back in time to reset history as it were, to avoid n accident, a claimant would most likely do so.
Of course you can raise the case whereby a person would want money so badly that she’d be willing to suffer even a hideous injury in exchange for enough money. Such a person might point out that she is so distressed without money that the money she would receive in a personal injury award would, on balance, make her life better, even with the physical impairment.
To that I would say that such a person has more problems than lack of money, that her lack of money probably flows from her inability to set priorities. It’s better to avoid an accident and its crippling effects than have one and enjoy some money, especially if the crippling effects damage your future earning ability. Besides, I would say, is that the best idea you can come up with to earn money, to maim yourself? You be the judge.
Still not convinced? Let’s engage in a further thought experiment. Suppose someone were to say to you “I’ll give you $500,000.00, tax – free, if you allow me to break your right leg.” Let’s pretend for the moment such an agreement is not illegal. How many people would take this deal? I submit not very many.
But, you may argue, most people would say no because they are afraid of the pain. What would the person say if I would to throw in 50 grains of morphine before the breaking? Perhaps a few demented souls would take the deal. But those of us who understand the importance of good health to our well-being understand that even half a million dollars do not begin to compensate for a crippled leg. I would submit no amount of money would.
Money’s a funny thing. No matter how much you have, there’s still a nagging feeling that you don’t have enough. I’ve never been quite capable of understanding this phenomenon.
There will always be someone with more money than you, if your thing is to be at the top of the money pyramid. And money is not, and never has been, the measure of a good and worthy person. The measure of a good person is how well she treats and helps others, how committed she is to the truth, how constructively she handles adversaries and adversities and how much compassion is in her heart. Simple as that.
I digress. The fact is we cannot go back in time, at least not yet. So where does that leave the injury victim? Intentionally or not, another person has taken something from her and therefore owes her. The at-fault party has to pay you for her loss.
What has she lost? Her health. The best thing she can do to return to the status quo ante is to see a doctor or set of doctors, depending on the extent of her injuries. True enough, but this requires money.
Injury law at this point is about medical care. She may have also lost her ability to work; therefore, she may need occupational rehabilitation. So injury law is also about getting the injured back to work. The whole ordeal may have made her depressed and anxious. So, injury law is about getting the psychological care she needs. And don’t forget the little matter of her vehicle. Injury law is also about getting her back on the road so she return to work, shop, bowl — lead a normal life again. Injury law is about all these things.
Now the at – fault person does not personally provide the above services. It would be impossible. And the professionals who do provide such services are not paid in wampum. Money is the commodity that modern societies have always used to trade for goods and services. And it’s no different if injury victim needs goods and services in order to be made whole again.
So when confronted by the question of whether injury law is only about money, say of course it’s about the money. How else can you pay the victim’s medical bills, lost wages, psychological and property damage?
The question is merely designed to undermine the credibility of someone who’s been injured and is seeking compensation.
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by Thomas Gagné | Mar 22, 2018 | understanding law terminology
Negligence is a legal concept, a subcategory of the larger legal concept of “torts.” Torts is one of the pillars of remedial law, along with criminal law and contracts, i.e., a law which lays out the process of securing a remedy for an alleged wrong. For example, in contract law, if a contracting party reneges on a promise, contract law provides a remedy for the aggrieved party. So too in tort law.
In tort law if a party is physically injured by another, tort law provides a remedy for the injured party.
If a party is physically injured by another, tort law provides a remedy for the injured party.
There are several types of torts including intentional and unintentional. Intentional torts include assaults of various varieties, defamation and so forth — wrongs which people intentionally commit. Then there are wrongs which people unintentionally commit. Negligence falls into the unintentional tort category.
When a person is negligent in the operation of a motor vehicle, and that negligence results in harm to another, then it is said that the negligent person is “liable” for the inflicted harm. This sounds very straightforward, right? Wrong. Judges, juries, and legal scholars have wrestled with the theoretical and practical meaning of negligence for centuries. It’s one of the beautiful and frustrating attributes of the law.
Negligence itself is divided into four major categories or “elements” — duty, breach, causation, and damages. Visit any first-year law school class around final exam time and you’ll likely encounter scores of zombie-like law students chanting the mantra of negligence — duty, breach, causation, damages.
Many of my clients think that merely because another driver has disregarded the rules of the road and collided with their vehicle, they are “owed” damages — i.e. money. In other words that the offender is “strictly liable.” This is not the case — even if the collision was so severe it “could have killed me.”
Understand that the client (which means you for the sake of this discussion) has the burden of proving the offender’ s negligence. It may not seem it, but right there is a mouthful. Some of my clients roll their eyes when I tell then this. They tell me: “why should I have to prove anything. After all, he hit me.
At law, this means that you — hopefully your lawyer — must prove each and every element of the alleged offender’ s negligence.
So let’s briefly examine the elements of negligence.
“Duty” means the obligation to take care in all of our dealings with others. For the purposes of this discussion, we’ll take duty for granted.
Let’s move on to breach. Breach is the heart of negligence — when a person breaches her duty of care to another person. In the context of an MVA (Motor Vehicle Accident), a breach can occur in any number of ways — traveling too fast for conditions, failure
to obey a traffic signal and so forth. It usually involves a traffic violation, but not necessarily so.
But, just because a police officer charges a driver with a traffic offense does not necessarily mean you have proven the element of breach. The police have been known to be wrong in their determination of liability. If that sounds like an understatement, it is.
Unless the responding officer actually sees an accident occur, his testimony about how the accident happened is irrelevant and inadmissible at trial. And unless he has been trained as an accident reconstruction expert, he cannot give his opinion as to who caused the accident and why.
This fact definitely comes as a shock to some clients. Moreover, what happens if there is evidence that you have also to acted negligently — what is called comparative negligence? We can take that issue up in another blog.
If you have a question based on this aspect, please give me a call at 864-233-2000 and book an appointment. I’ll be more than happy to meet with you for a free consultation.
For the moment let’s skip causation and talk about the last element of a negligence claim — damages. There are many types of damages, and one of the reasons you should seek counsel is to make sure you claim all the damages due you. An attorney also has the expertise to prove them. It is said that a lawyer’s stock in trade is his time. That’s true. But the real lawyer’s stack in trade is his expertise and the years of study and sacrifice that has gone into that expertise.
Now, damages include medical bills, pain, suffering, vehicle damage and so forth. Again, you, the victim, must shoulder the burden of proving your damages.
And finally, there’s causation. In a nutshell, causation links the breach to damages. In other words, you have to prove that because of the at-fault drivers’ negligence, you suffered property damage, bodily injury and so forth. Again this is easier said than done. Perhaps of all the elements we’ve discussed proving causation requires the services of a lawyer.
Good luck with your claim and don’t forget to call me should you have any questions!
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