South Carolina Personal Injury Law Blog

Attorney Reprimanded for Misconduct During Litigation

A U.S. District Judge in New York has reprimanded an attorney, finding that she was "the driving force" behind a series of woeful acts and "misconduct" during litigation, including altering transcripts, refusing to provide opposing counsel with documents, and misrepresenting facts to the court, to her fellow lawyers and to her client.  You can read the 129 page opinion and order by clicking HERE.

Source:  "Federal Judge Lowers The Boom On Attorney" published at Courthouse News Service.

Judge Condemns Attorneys for Outrageous Behavior

It is sometimes hard to believe how uncivil and unreasonable attorneys can act toward one another.  At least one judge has had enough of such behavior, and he let the attorneys and their clients know his thoughts of their conduct very loudly and clearly.

U.S. District Judge Sam Sparks of Austin, Texas issued an order a few years ago in which the attorneys had a history of filings and antagonistic motions full of personal insults requiring multiple discovery hearings.  It was so bad that the judge said that he feels like he is supervising kindergarten, because the lawyers involved in a civil suit in his court are acting like they never learned how to get along with others.

Judge Sparks was so outraged by the attorneys' conduct that he threatened to order the parties in that case to find new lawyers "if the lawyers in this case do not change, immediately, their manner of practice and start conducting themselves as competent to practice in the federal court."

While there are exceptions, we are fortunate here in South Carolina that the vast majority of attorneys are civil to one another and do abide by the rules, both in word and in sprit.  I cannot stand the thought of having to deal with someone acting the way that the attorneys in Judge Sparks' case were acting, and personally, I am glad that he dealt with them as harshly as he did.

The full text of Judge Sparks' Order is set forth below:

ORDER

Be it remembered on the 21st day of July 2004 and the Court took time to make its daily review of the above-captioned case, and thereafter, enters the following:

When the undersigned accepted the appointment from the President of the United States of the position now held, he was ready to face the daily practice of law in federal courts with presumably competent lawyers. No one warned the undersigned that in many instances his responsibility would be the same as a person who supervised kindergarten.

Frankly, the undersigned would guess the lawyers in this case did not attend kindergarten as they never learned how to get along well with others. Notwithstanding the history of filings and antagonistic motions full of personal insults and requiting multiple discovery hearings, earning the disgust of this Court, the lawyers continue ad infinitum.

On July 20, 2004, the Court's schedule was interrupted by an emergency motion so the parties' deposition, which began on July 20, would and could proceed until 6:30 in the evening. No intelligent discussion of the issue was accomplished prior to the filing and service of the motion, even though the lawyers were in the same room. Over a telephone conference, the lawyers, of course, had inconsistent statements as to the support of their positions. On July 20, 2004, the Court entered an order allowing the plaintiffs/counter-defendants until July 23, 2004 two days from today to answer a counterclaim. Yet, on July 21, 2004, Bodyworx.com, Inc.'s lawyers filed a motion for reconsideration of that Court order arguing the pleadings should have been filed by July 19, 2004.

The Court simply wants to scream to these lawyers, "Get a life" or "Do you have any other cases?" or "When is the last time you registered for anger management classes?" Neither the world's problems nor this case will be determined by an answer to a counterclaim, which is four days late, even with the approval of the presiding judge.

If the lawyers in this case do not change, immediately, their manner of practice and start conducting themselves as competent to practice in the federal court, the Court will contemplate and may enter an order requiring the parties to obtain new counsel.

In the event it is not clear from the above discussion, the Motion for Reconsideration is denied.

Signed this the 21st day of July 2004.

Sam Sparks
United States District Judge

Source:  "'Antagonistic Motions' Spark Retort From Judge" by Brenda Sapino Jeffreys, pubilshed at Law.com.

Recorded Statements and Insurance Adjusters

The following post from The Maryland Injury Lawyer Blog discusses whether or not injured parties should allow insurance adjusters to take their recorded statement:

Most insurance adjusters tell personal injury lawyers that they need a recorded statement from the lawyer's client to "firm up liability" or to "assess credibility." But providing a recorded statement is typically a "loose-tie." It rarely results in a finding on liability in favor of the accident attorney's client. Of course, this is not to say that this is always the case, but absent special circumstances, the downside far outweighs any benefits.

Defense attorneys use recorded statements to parse sound bites out of context, often giving ample fodder for cross-examination against your personal injury client at trial.

A critical caveat is in personal injury accident cases involving an uninsured or underinsured case. Because these claims are breach of contract cases, the accident lawyer's client's insurance policy almost certainly contains language making a statement to the uninsured motorist carrier a condition precedent to the accident victim's recovery under the policy.

The personal injury attorney should not assume compliance is necessarily required. This is particularly so in cases where the claim was denied. The accident lawyer should check to see when the claim was denied. If the claim was denied before the claim representative requested the recorded statement, the lawyer may have grounds for refusing a statement, claiming breach of contract. If this is the case, the lawyer should set up this claim in writing with the claims adjuster

If your client must give a statement in an uninsured motorist case, the best way to avoid disaster is to treat it as if the lawyer were prepping the client for his or her deposition. The accident attorney should discuss the client's statement with the client before he or she gives it and should generally have the client give the statement at his or her office. The lawyer should participate in the call the client makes to give a recorded statement, and should object to improper questions, remembering the ... attorneys' local rules of procedure do not apply, giving the lawyer far more latitude. Finally, let the claim representative know you insist on a copy of the statement.

Source:  "Recorded Statements" by Ronald V. Miller, Jr., published at The Maryland Injury Lawyer Blog.

Contingency Fees in Personal Injury Cases

The vast majority of personal injury cases in South Carolina and elsewhere are handled on a contingency fee basis.  The following article by attorney Scott E. Smith is an excellent discussion of the use of contingency fees in personal injury cases:

Abraham Lincoln once said, "A lawyer's time and advice is his stock in trade." In essence, asking an attorney for his advice is no different than asking an accountant to set up a business plan or do your taxes, a doctor to examine you, render a diagnosis and prescribe treatment or hiring an electrician to fix the wiring of your home. Nonetheless, many people are under the impression that calling a lawyer and asking a question is free. Although most lawyers will gladly answer preliminary questions regarding a legal matter, when it is determined a lawyer is needed, a fee contract is required.

Most lawyers charge by the hour, as do most professions. Depending upon the lawyer's qualifications, experience and expertise, the hourly rate will vary. However, there are situations attorneys will work for a client on a contingent basis or on a reduced hourly rate and negotiated lower percentage. A contingency fee allows a lawyer to charge a client a percentage of money recovered in behalf of the client in a given case. A contingent fee contract has been referred to as the "poor man's key to the courthouse" because many individuals who are in need or require the assistance of an attorney cannot afford an hourly rate.

Moreover, many legal matters not only require an attorney's time and advice but also monety to advance expenses for police and accident reports, photographs, medical records, court filings and subpoenas, depositions and payment for expert witness fees, common to personal injury and medical malpractice cases. The advancement of these expenses can be substantial and in medical negligence matters can often reach $30,000 to $50,000.00. A client who cannot afford the hourly rate of an attorney most likely will not be able to afford the expenses needed to adequately prepare the case. In personal injury cases the cost are usually much less and can be anywhere from a few hundred dollars to thousands of dollars.

If an attorney agrees to take your personal injury, product defect, medical negligence, class action, drug defect, premise liability, or other related incident that causes serious personal injury or death a contingency fee contract may be the only way of retaining a lawyer. Added to this scenario is the realization that many injured people are unable to work and suffer financial stress as a result of their physical injuries. Those injured individuals or their families are unable to pay expenses to retain experts and pursue their case. For those reasons contingency fee lawyers must advance the case expenses from their own accounts often times expecting those expense to be reimbursed at the time a settlement or judgment is procured in behalf of the client.

A contingency fee contract based upon a percentage of the amount recovered must not be entered into by the attorney or client without careful consideration because if the case is not successful and a settlement or judgment is not procured in behalf of the client, the attorney will have nothing to collect as a fee. This risk is borne by the attorney and adds to the basis of the percentage charged. The more difficult the case, the less likely the case will be successful and therefore, the higher the percentage charged. Nonetheless, each case must be examined on its own merits to determine the appropriate fee charged.

Most personal injury and medical negligence contingency fee attorneys charge from 25-40%. When entering into a contingency fee contract, the attorney and the client must determine the likelihood of success of the case, the amount of recovery if the case succeeds, the prior practices and attitude of the insurance representative or other side with respect to settlement or need for trial, the likelihood of collecting a judgment, the availability of alternative dispute resolution, the amount of time a lawyer is likely to spend on the case, the difficulty of the issues involved in the case, and the expenses of the litigation, whether they be shared or advanced by either the attorney or client. If an attorney is successful on a contingency fee contract the risk of taking the case on a percentage is realized. However, if an attorney is not successful the attorney not only fails to recover a fee but will have cost considerable time that could have been realized if the client had paid by the hour.

A common myth propagated by big business, big media and insurance companies is that contingency fees encourage lawyers to file frivolous lawsuits. However, the opposite is true. A competent and qualified lawyer is not about to take a case on a contingent basis unless the case has merit. Filing a frivolous lawsuit undoubtedly results in wasted time and effort by the attorney with the chance sanctions or attorney fees awarded against the filing attorney if the suit is deemed frivolous.

At our firm, the majority of our personal injury or medical negligence practice is based upon the execution of a contingency fee contract with clients who are unable or would prefer not to enter into an hourly contract. Unfortunately without contingency contracts, the majority of those in the middle or lower socio-economic sector of our community could not afford a lawyer. Of course, this is exactly what insurance companies and big business would like to see happen.

Source:  "Hiring a Personal Injury or Medical Negligence Attorney on Contingency" by Scott E. Smith, published at his Columbus Personal Injury Lawyer blog.  Thanks also to Christopher F. Early of the Massachusetts Personal Injury Blog for his post about this article.

Attorney's Fees in Personal Injury Cases

The attorneys at Allen, Flatt, Ballidis & Leslie recently published an article analyzing the concept of attorney's fees in personal injury cases.  It is thought provoking and well worth reading:

Sometimes we attorneys are much maligned by the public. Auto accident lawyer, ambulance chaser, are coined phrases. We can all laugh at ourselves. Here is a good joke I heard a long time ago. What is the difference between a lawyer and a catfish? One is a bottom dwelling scum sucker, the other a fish.

The thought that we have to pay money to lawyers to assert our rights, and the fees they receive just does not give us a sense of justice. After all, in California lawyer fees have to be paid by the party hiring the lawyer, and only in breach of contract actions are the fees recoverable. So the injured victims already start out with less money than they deserve.

Many clients try to handle their claims themselves. Certainly this is possible in small claims court, but not in Superior Court actions. So we have to hire an attorney at great expense. Therefore it is important to get the best attorney you can, one that can maximize the amount you will receive, so that the lawyer fees get paid also.

But let's think of a simple solution. Why not penalize insurance companies that do not treat you fairly. Make them pay all your bills up front, and if they dispute the bills and you win, they have to pay the attorney fees for getting them paid. Why not make them pay for the attorney fees if you have to file a suit and win, or the fees if they mishandle your case. Blue Cross would not deny coverage to so many people if that were true, as reported in recent weeks, because the attorney fees would act as a penalty.

So why don't we enact this legislation? The reason is the fear of reprisal. Insurance companies hire their own attorneys and want to collect attorney fees if you lose. It is different for you than them. YOU ARE THE VICTIM. They are not. Victims should always be protected from additional damages. The Insurance company should always act fairly. They can afford to defend actions, you cannot. Why not make them pay for your lawyer if they lose. If you win more than your offer of settlement, they can pony up all your costs and attorney fees.

Source:  "Auto Accident Lawyers and Their Fees, How Do We Like It?" published at the Southern California Injury Law Blog.