by Thomas Gagné | Feb 20, 2018 | understanding law terminology
In a nutshell, mediation is an alternative way to resolve legal disputes. It’s nothing new, but it has become fashionable in the last twenty years or so as the number of court cases (lawsuits) have proliferated and governmental budgets have contracted. Mediation is quicker, and more importantly, cheaper than a traditional trial on the merits.
It works like this. After a party files a lawsuit, both the plaintiff (the person or entity bringing the suit) and the defendant (the person or entity against whom the suit is brought) engage in what’s called discovery. Discovery is when both sides exchange information each one knows about the case and conducts various investigations to unearth new evidence.
The lawyers then take this evidence and fashion it into a case. Each side hopes that its case is the most compelling based on the law and the evidence. After discovery is complete the suit is ready to be heard and ruled upon. But rather than take the case to a jury and or a judge as part of a governmental mechanism to resolve the case, the parties hire a mediator and engage in private resolution. A mediator is one person who will hear the case and then help the parties reach an amicable conclusion.
The mediator should be well versed and experienced in the legal field that governs the lawsuit and is usually a lawyer. Moreover, each side has a chance to propose a mediator and must ultimately agree as to who the mediator will be. The parties will split the cost of the mediator.
Mediation then occurs, usually on neutral territory. Each side presents its case, the mediator weighs the merits of the arguments and then helps the parties reach an amicable and hopefully just resolution.
It’s important to understand that the mediator does not make a decision for the parties, as a judge a jury might. Furthermore, the parties are free to leave the mediation without a resolution but will most likely still engage in negotiations after mediation has failed. Mediation can last from an hour to several days depending on the complexity of the case and the intransigence of the parties.
Many states now require mediation before a formal trial takes place, so engaging in mediation is not an option.
Is mediation worthwhile? Like so many other things in the law, the answer is: it depends on the contours of the case, but I would hazard to guess that in general, any mechanism that brings the parties together to hash out a resolution is a “good” thing.
by Thomas Gagné | Feb 15, 2018 | Personal Injury
One of the main purposes of the law is to compensate persons for a wrong another person or entity has perpetrated upon them which results in a loss of some sort.
For instance, if you’re a buyer and a seller agrees to sell you a specific number of goods at a specific price and that seller reneges on the deal in one or more ways, then the law provides you with a remedy (possibly a lawsuit) intended to make you whole should you prevail. In a very real sense, you have been “injured”. But you have been injured financially.
It is also true that, in a very real sense, you have been personally injured. What could be more personal than losing one’s money?
But the legal field of personal injury, the field in which I practice law, is generally limited to bodily injury.
The personal in personal injury literally refers to the human body. Of course, I deal with “financial” injury also, that is, when my client loses money because his injury resulted in medical bills, lost wages and so forth, but the main loss is bodily loss.
It’s a cliché that lawyers have their own language. But it’s a true cliché. Lawyers refer to legal language as “terms of art,” and it has been developed and refined over the centuries. Words which mean one thing to a lawyer may mean something entirely different to a nonlawyer. So, when you see a legal term, simply look it up for its precise definition. You may be glad you did.
by Thomas Gagné | Jan 21, 2018 | Uncategorized
Mr. Thomas M Gagne will be speaking on the topic of Medical Issues During The Claim in Charleston SC at 1:15 pm on the 23rd of February. Details below:
Gain Tips and Strategies From Experienced Practitioners
Are you fully prepared to handle workers’ compensation claims? This strategic course walks you through the step-by-step practicalities of handling a workers’ compensation case, from initial intake through the hearing process. Whether you represent the claimant or the defendant, you’ll gain the knowledge you need to effectively advise and zealously defend your client’s position. Register today!
- Skillfully work up your cases, knowing the process and procedures to follow.
- Discover the key elements and facts to confirm during the initial investigation.
- Recognize the medical evaluation and discovery issues surrounding claims.
- Find out how to accurately determine the value of a claim.
- Gain a better understanding of the applicable statutes, regulations and case law.
- Confidently represent your clients in workers’ compensation hearings.
- Learn opposing counsel’s strategies so you can anticipate actions and proactively plan for reactions.
Who Should Attend
This basic-to-intermediate level program provides practical information on workers’ compensation claim procedures for:
- Attorneys
- In-House Counsel
- Workers’ Compensation Administrators
- Insurance Claim/Risk Managers
- Human Resources Professionals
- Paralegals
Course Content
- Overview of Laws and Concepts
- Preparing Your Case: Procedures for Claimant and Defendant
- Determining the Value of the Claim
- Medical Issues During the Claim
- Hearings: Practice and Procedure
- Ethical Obligations
Continuing Education Credit
Continuing Legal Education – CLE: 6.00 *
Human Resource Certification Institute – HRCI: 6.00
International Association for Continuing Education Training – IACET: 0.60
Society for Human Resource Management – SHRM CP/SCP: 6.00
* denotes specialty credits
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by Thomas Gagné | Feb 7, 2017 | Personal Injury, Uncategorized
It’s not a good idea to talk to anyone about your case. Sure, there are people with whom you may safely discuss your case, for instance, your spouse, but the better rule is: never discuss your case with anyone, except your lawyer and his staff. This applies to workers’ compensation cases as well as to other types of injury cases. Why?
The simple answer is that anything you say can be used against you in a court of law or other adjudicatory proceedings. Sound familiar? That’s because the foregoing statement is part of the Miranda warnings police are obligated to recite to persons under arrest. Spontaneous statements are admissible in criminal proceedings, and any statement, voluntary or not, is admissible in civil proceedings. (within certain parameters) which includes workers’ compensation and other tort cases.
Even if you make a statement about your case to your best friend, that friend is subject to subpoena and must truthfully disclose what you told her or face contempt. So – MUM is the word.
by Thomas Gagné | Feb 7, 2017 | Personal Injury, Uncategorized, Workers Compensation
If my case is compensable, why do I need a lawyer?
Achieving compensability for your cases is only half the battle.
Take good note: insurance accompanies do not have your interests at heart. Period. Insurance companies are corporations, usually public, and their allegiance lies exclusively with the stock price of their company. Look at it this way: one does not run a profitable insurance company by paying claims.
Employers and insurance companies may like you to think they are paternal, willing and always ready to take care of you if you are a good and loyal worker. Unfortunately, in most cases, this is not true. You are replaceable, and they know it. And if it comes down to you or them, they will do whatever it takes to protect themselves. Of course, there are exceptions.
Given this reality, do not assume that just because you are receiving temporary compensation that the workers’ compensation insurance company will maximize your disability payment or make good on your other damages. To the contrary, it will usually hire attorneys to make sure it pays you the minimum.
This is why you need an experienced, aggressive lawyer fighting for your interests throughout the life of your claim. This is what the Attorney Offices of Thomas Gagne, P.A. promises you – an ally sincerely looking out for you.
by Thomas Gagné | Feb 6, 2017 | Uncategorized, Workers Compensation
Clients injured at work often ask me: in addition to my workers’ compensation benefits, may I sue my employer for negligence?
The answer, in most cases, is no.
Why? Because most state have adopted what is called “the exclusivity rule.”
This rule limits an injured employee’s legal recourse solely to workers’ compensation. The fact that the employer may have been negligent is irrelevant. The justification for this rule lies deeply within the genesis of workers’ compensation law.
Before the advent of workers’ compensation, pursuing a negligence claim against the employer was the only remedy available to employees who suffered on the job injuries. This state of affairs resulted in uncertain relief for the employee (because she had to prove negligence) and, in most cases , intolerable expense for the employer.
Workers’ compensation systems killed two birds with one stone. The new law abolished the need to prove negligence thus making it “easier” for the injured employee to garner benefits, and it reduced employers’ legal expenses by streamlining the adjudicatory process. Among other things, evidentiary requirements were relaxed, and juries were replaced by commissioners.
The new law, which made its debut early in the twentieth century, also served as a partial palliative to the general labor unrest indicative of industrial and labor relations at the time.
by Thomas Gagné | Feb 6, 2017 | Uncategorized, Workers Compensation
Noncompensability means that your workers’ compensation case has not been “accepted” by your employer’s workers’ compensation insurance carrier, for one or more reasons. There are several legal and factual defenses an insurance company might raise to block your benefits. On the other hand, sometimes a carrier will automatically deny your claim “pending investigation”, which means that the carrier may accept your claim in the future if facts turn up that are beneficial to your case.
This is one of the reasons why an injured employee needs the assistance of a competent attorney well versed in workers’ compensation law and practice. Just because a carrier raises a defense does not mean that’s the end of the matter. There are many ways to defeat defenses, too many to go into here, and they all depends on a careful analysis of the totality of the facts and circumstances of your case. Remember, there is no magic bullet. All legal cases are different in the detail.
by Thomas Gagné | Feb 5, 2017 | Personal Injury, Uncategorized
It’s crucial our auto or workers’ compensation clients see and are treated by the correct medical provider, given his or her particular condition. Many of my clients, before they see us, are satisfied with their family doctor, when she may not be the optimal medical provider for the case. Doctors are often not unbiased and would rather treat a patient themselves rather than give up control of the patient’s therapy to another medical professional. (more…)
by Thomas Gagné | Feb 4, 2017 | Uncategorized
It’s absurd that most insurance companies will pay less in bodily injury compensation for “low impact” vehicle collisions – those with property damage under one thousand dollars. Insurance companies reason that if the impact was “minor” than juries will buy the argument that the injuries suffered were also “minor.” Insurance defense attorneys will make a big dog and pony show of this in court – blowing up pictures of the vehicle, paying some expert to testify that the blow from the at-fault vehicle was “ relatively” light.
Insurance companies are wrong on two counts here. First, the average weight of an automobile is approximately two tons. That’s two tons of mass multiplied by how fast the vehicle was moving coursing through your body at the time of impact. Such force is never insignificant or minimal! Even at five miles per hour, the force is enough to cause serious bodily injury.
Secondly, many people have pre-existing conditions – especially orthopedic conditions which are especially susceptible to these forces. These persons are called “eggshell plaintiffs” by the law. There is certainly no such thing as a “minor impact” on these individuals, especially if the person is older.
Don’t let insurance companies devalue your claim by arguing that your auto accident was “a minor impact.”
by Thomas Gagné | Feb 3, 2017 | Personal Injury, Uncategorized
Obtaining timely and proper medical treatment is the cornerstone of a well-managed personal injury case and one of the most important reason clients seek my counsel. Without medical attention, clients not only jeopardize their physical well-being but the value of their case as well. (more…)
