How to negotiate a personal injury settlement

Posted by Steve Levine on September 19, 2014
Law / No Comments

photo credit: woodleywonderworks

If you have suffered injuries as a result of someone else’s actions or negligence, you can seek compensation using the legal process. You will have the option of settling before going to trial and, in some cases, you will be able to settle even before filing suit.

A voluntary settlement agreement where both parties have agreed on the value of the claim will save you time and avoid the hassle associated with going to trial. However, you might be wondering what a good settlement price is, since it can vary widely depending on a number of factors.

Before you start negotiating a personal injury settlement, there are a number of steps you must take to ensure you get the best deal possible.

Get medical attention

The first step in resolving your personal injury claim is to get the necessary medical attention. Your doctor will run all the necessary check-ups and prescribe the right treatment for you. This is crucial because only by knowing the type and extent of the injuries you have incurred will you be able to know how much money your settlement is worth.

After your doctor has ascertained your condition, the severity and the extent of the injuries, you and your attorney will be able to proceed to the next step in the settlement process.

Calculate special damages

Special damages or economic losses are damages for which money can act only as a comparable substitute. Known as the “out-of-pocket loss” rule, special damages include such things as:

  • Lost wages
  • Decreased or lost earning capacity
  • Medical expenses and expenses for special equipment
  • Funeral and burial expenses
  • Property damage

If you keep thorough records of past economic losses you will be able to calculate special damages much more easily. Keep all records of past medical expenses, lost wages and medication that you have taken as part of your treatment – this will aid you in calculating the special damages that you are owed.

Figuring out future economic losses is a little bit harder as it will vary widely from case to case. A personal injury lawyer will usually suggest consulting a medical expert to testify with respect to future medical expenses that you will incur. An economics expert can also be consulted to find out an estimate to the financial losses that you will incur as a result of your injuries and reduced work capacity.

When it comes to calculating your lost earning capacity, the damages will usually be equal to the difference in your actual earnings from your projected earnings. That’s why your revenue is projected based upon your life expectancy and retirement age. An expert will take into account other factors such as income tax returns, W-2s, the state of the economy and industry you are engaged in, average salary of people working in the same industry that have a similar education and work experience and so on.

Calculate general damages

General damages, also known as non-economic losses, or losses for which money can only act as a rough substitute. Example of general damages are:

  • Physical pain and suffering
  • Emotional pain
  • Loss of reputation
  • Loss of consortium
  • Shock and distress
  • Loss of society and companionship

General damages are usually calculated at a rate of 1.5 to 5 times special damages, depending on the extent of the injuries.

Finding out the value of your claim

Once you’ve calculated the special and general damages, you must adjust the result to several factors:

  • Liability. A higher settlement value will be awarded if liability has been established and there are no doubts about the defendant’s fault. However if liability is disputed or you are partly responsible for the injury, the settlement value will decrease in accordance to your actions.
  • Plaintiff history and characteristics. Your own traits and characteristics can influence the amount you can be awarded. Things such as age, occupation, likeability and past medical history will influence the value of the settlement.
  • Having multiple defendants means that there will be some kind of negotiation over who is going to pay more.
  • Venue. Some venues will be more favorable for trial and may award higher personal injury damages than others. An insurance adjuster will take this factor in mind when calculating the settlement’s value.
  • Mitigating damages. Courts look favorably upon injured parties that mitigate or have tried to reduce the damages. This means that if you refused to seek treatment right after your injury and, as a result, your medical expenses are now higher and your injuries harder to treat, the value of your claim may be reduced because you failed to mitigate.

Submit the settlement offer

Now that you have done all the steps all that remains is to submit the settlement demand letter to the defendant or his/her insurance company. Be aware that usually this process has much back and forth negotiation between the plaintiff and the insurance company in regard to the value of the claim.

However, if you do not reach a voluntary agreement, the next step would be to go to trial where a judge or jury will determine the value of the damages to which you are entitled.

Filing for Bankruptcy – Things to Consider

Posted by Steve Levine on September 19, 2014
Law / No Comments

photo credit: Team Lane

Filling for bankruptcy is a big decision – both financially and emotionally. Whether you should file for bankruptcy depends on your individual circumstances. Reading an article or going over a checklist only gives you the information; ultimately – it is up to you to decide. However if you have already decided to file for bankruptcy, there are a number of things you should be aware of.

Types of bankruptcy

Factors such as your income, expenses and amount of debt will determine whether you should file for Chapter 7 or Chapter 13 bankruptcy. Both types have specific requirements and it’s best to get acquainted with each before you proceed further.

Chapter 7 Bankruptcy

You must successfully pass the means test to qualify for Chapter 7 bankruptcy. This test is basically comprised of taking your average monthly income for the past 6 months and comparing it against the median income for a household that resembles yours in your state. If your income is below the state median you can consider that you have passed and you can apply for Chapter 7 bankruptcy without filling out the entire form. If, however, your income is above state median you will have to complete the entire form and take into account a number of expenses to see if your income is low enough to qualify for this type of bankruptcy.

Chapter 13 Bankruptcy

This type is a bit different in that you have to propose a repayment plan to pay back a part or all of your debts over a 3 to 5 years time span. This means that you must have enough disposable income to be able to make these monthly payments. Another requirement is that you must not have more than $1,149,525 in secured debts or $383,175 in unsecured debts.

Which one is right for me?

If you don’t meet the requirements of Chapter 7, Chapter 13 bankruptcy may be your only solution. But there are cases where filing for Chapter 13 has more advantages, even if you are eligible for Chapter 7.

In Chapter 7, the bankruptcy trustee is appointed to sell all your nonexempt property in order to pay off the debts to the creditors. If you have a lot of assets, this can be a big disadvantage. However, if you file for Chapter 13, the bankruptcy trustee only has to approve your repayment plan, allowing you to keep your property in exchange for meeting the monthly payments as set out in the plan.

In addition to this, Chapter 13 bankruptcy provides debtors who meet certain requirements with benefits such as:

  • Reduce the principal balance of your investment property mortgage or car loan with a cramdown. A cramdown is basically a way to reevaluate the value of an asset in order to reduce the amount of secured debt that you own. This reduces the amount you have to pay and can also lead to a reduction in the loan’s interest rate.
  • Eliminate your second mortgage or other unsecured junior lien through the process of lien stripping. This works if the value of the home is lower than the amount you own. In such cases filing for Chapter 13 can allow you to strip a second mortgage home equity line of credit (also known as HELOC) from your home.

Should I file for bankruptcy with my spouse?

If you are married, you have the option to file for bankruptcy either individually or jointly.

The benefits of an individual filing are more obvious when:

  • Only you or your spouse has debt
  • One spouse has property that may be endangered if filling for bankruptcy. Note that in Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin marital assets are considered property of the bankruptcy estate.
  • The state you reside in does not allow for doubling of exemptions in joint cases.

However if both you and your spouse have many joint debts, a joint filing for bankruptcy will provide you with doubled bankruptcy exemptions (this depends on each state individually).

Federal Judge Urged To Resign For Battery

Posted by Steve Levine on September 19, 2014
Law / No Comments
us federal judge

photo credit: Kamal H.

A furious public has made repeated calls for the resignation of federal Judge Mark E. Fuller, who was accused for hitting his wife last month in a luxury hotel room in Atlanta. Although he was charged and arrested in late August, the public outcry has intensified, with a number of the state’s top political figures joining in the chorus, urging him to step down. But removing a judge from his lifetime position on the federal bench is tricky – the U.S. Constitution states that federal judges can only be removed through congressional impeachment.

Judge Mark E. Fuller was appointed life tenure by former President George W. Bush in 2002. The first report of the altercation came from Kelli Fuller, the judge’s wife, who dialed 911 from a Ritz-Carlton hotel, saying that he had hit her after she confronted him about her suspicions that he was having an affair with a law clerk. The police noted in the report that Mrs. Fuller had lacerations to her mouth and forehead and that the hotel room was reeking of alcohol. Mrs. Fuller claimed that she was was pulled by the hair, thrown on the ground, kicked and repeatedly hit on the mouth and head.

The judge claimed that he was acting defensively after his wife threw a wine glass at him. He is now in a pretrial diversion program that will require counselling and drug and alcohol evaluation, and if successfully completed, could lead to the charges against him being erased. In addition to this, Judge Fuller has stated that the incident has been an embarrassment for both himself and his family and he hopes to resolve it without delay.

After the arrest, the 11th Circuit Court of Appeals decided that he would not be assigned any new cases and that his caseload would be assigned to other judges.

Republican Senator Richard Shelby of Alabama has made a statement, covered by the Montgomery Advertiser, in which he condemns Judge Fuller stating that “[he] lost the confidence of his colleagues and the people of the state of Alabama and I urge him to resign immediately.”

Others who joined the request were Democratic Sen. Claire McCaskill of Missouri and GOP Sen. Jeff Sessions of Alabama. Parallels were drawn to a recent incident involving NFL player Ray Rice who was forced to resign after an episode of domestic violence.

However none of these request will lead to anything substantial. Federal judges have the immunity of life tenure which means that only a congressional impeachment process can lead to Judge Fuller being dismissed from the job. In this regard, not even a felony can convict a judge, especially one that is not related to his legal work. Public calls for the resignation of one judge or another are fairly frequent throughout history, but the majority are related to legal decisions, not felonies.

The Federal Judicial Center reports that only 15 judges have been impeached since 1803, with only 8 being convicted and expelled from the federal bench. The last case when a federal judge was impeached was in 2010 when former U.S. District Judge G. Thomas Porteus, Jr. of Louisiana was impeached on charges of bribery and accepting gifts from people who were involved in previous cases.

If the past can tell us anything it’s that it may take a referral from the judicial branch before Congress initiates the impeachment process.

A special committee of appellate and circuit judges has to be formed by an acting chief judge of the 11th U.S. Circuit Court of Appeals to investigate the claims that were brought up against Judge Mark E. Fuller. It’s up to the circuit council, a special body of the 11th Circuit Court, to determine what the sanctions will be (if any). These could range from a private or public reprimand to not having any new cases assigned for a specified amount of time.