Articles Posted in Litigation Process

I have read this stuff about Herman Cain and the claims of sexual harassment against him.  I also heard that there was a confidentiality agreement as part of the settlement with the woman or women.  What is a confidentiality agreement?

A confidentiality agreement is a part of some settlement agreements in some types of civil litigation.  Typically, confidentiality agreements prohibit the parties from discussing the terms of the settlement with any one other than attorneys and financial advisors.  Confidentiality agreements may also include anti-disparagement provisions, which means that each of the parties to the agreement are prohibited from saying disparaging things about the other parties.  It is not uncommon for these agreements to provide that the parties are cannot talk about the facts giving rise to suit, the lawsuit itself, or the terms of the settlement, but can say that "the case was settled on terms mutually acceptable to all concerned" or words to that effect.

Confidentiality agreements are common in settlements of medical malpractice cases, products liability cases, employment cases, and very large personal injury and wrongful death cases.  They are used in other types of cases as well. 

I was hurt in an intersection wreck case about nine months ago.  It wasn’t my fault.  I have been waiting for over a year for the case to settle.  I lost three months of wages and have had to pay some medical bills that were not covered by my health insurance.  Can I get the insurance company to pay interest on my settlement?  It doesn’t seem fair that they can delay my settlement and not have to pay interest.

Not under Tennessee law.   Tennessee law does not permit the recovery of interest in personal injury or wrongful death lawsuits.  Some states to have such a law and it encourages insurance companies to act more promptly and be more reasonable in their evaluation of cases.

The only exception to this rule is if you win a case.  When you win a judgment is entered by the court you are permitted to recover interest.  Interest accrues at the rate of 10% per year on the amount of the judgment that is unpaid.  

I have a truck wreck case pending in Tennessee state court.  My financial situation is bad and it looks like I have to file bankruptcy.  What effect will that have on my personal injury case? 

First, I urge you to talk to your personal injury lawyer before filing bankruptcy.  This is essential.

Second, if you file bankruptcy you must list your pending lawsuit as an asset.  Failure to do so will create a big problem for you.  Then, you truck accident case lawyer must get approval of the bankruptcy trustee and the bankruptcy court to continue to represent you.  

I saw a car wreck last year.  Apparently a lawsuit was filed and now they want to take my deposition.  I got a subpoena saying I have to show up at some lawyer’s office and give a deposition.  Do I have to do it? 

Yes.  There are a couple technical rules that the lawyer had to follow concerning proper notice of the deposition, proper service of the subpoena, selecting a proper location for the deposition, but assuming the lawyer did those things right then you have to show up unless you receive permission from the lawyer issuing the subpoena not to show up.

Sometimes lawyers will subpoena a person to a deposition only because the person refuses to have an informal meeting with them and discuss the case.  If that is true in your situation, you may wish to meet with the lawyer and perhaps the deposition will be canceled.  Remember, however, that there are probably at least two lawyers involved in the case and the lawyer for each of the parties to the case will want to know what you saw.  So, it might actually be easier for you give a deposition.

I was involved in a car wreck in Springfield, Tennessee last Spring and last Friday I got sued.  What do I do now? 

First, call your insurance agent and tell him or her that you have been sued.  

Second, your agent may tell you to send the papers to him or her.  Do it promptly.  Make sure you can prove that you sent the papers.  If the agent gives you the name, address and telephone number of someone else who needs to receive the papers, send the papers to that person.  Once again, make sure you can prove that you sent the papers.

My lawyer just settled my Tennessee personal injury case.  I signed the check and the other papers.  Now my lawyer says I can’t have the money for ten days because he has to hold the check in his trust account until it clears.  That can’t be right.  Is he just skimming the interest off my money? 

No.  Your lawyer is doing exactly what he is required to do.  Lawyers must maintain a separate bank account known as a trust account.  It is for client funds – and only for client funds.  When a check is deposited into that account, the lawyer cannot write a check out of that account until the deposited check clears the bank.  For out-of-state banks, that can take ten business days.  Sometimes the check can clear more quickly, but ten business days is a standard time.

Your lawyer is not making interest on the money.  The interest that is earned is taken by the bank and given to the Tennessee Bar Foundation which in turn donates the money to advance justice.  Thus, your lawyer has no financial reason to hold your money one second longer than he must to meet the ethical obligations involved in administering a trust account.

I was in a car accident in Murfreesboro and hired a personal injury lawyer to help me resolve my case. She warned me to be careful about Facebook and Twitter.  Why? 

When you get involved in a personal injury lawsuit after a car wreck, the other driver’s  insurance company and its lawyers will investigate you and determine whether there is any information in your background that can be used to destroy your claim or reduce its value.  It is not uncommon for the insurance company to look at Facebook and Twitter to determine was you wrote about your accident, your injuries and your post-wreck activities.   Likewise, the insurance company will be looking to see what your friends wrote about these matters.

The insurance company will also be looking for pictures of you that can be used to say that you do not have the injuries you claim or that your injuries are not as serious as you claim.

What is the number of personal injury and wrongful death cases that are filed every year in Tennessee state courts?

For the year ended June 30, 2010 (the most recent year for which statistics are available) these were 10,469 tort cases filed.  (Tort case include all types of personal injury and wrongful death cases, including medical malpractice cases).  Included in that total are 324 medical malpractice cases.

There were 263 tort cases tried to a jury in the year ended June 30, 2010, Thirty (30) of those trials were medical malpractice trials.

I have a car wreck case and my lawyer says that the insurance company wants to take my deposition. Do I have to do it?  the idea makes me very nervous.

A deposition is testimony given by a plaintiff, a defendant or witness in a lawsuit before the case actually goes to trial. The person giving the statement is called the deponent. At the beginning of the deposition the deponent is asked to swear or affirm that the statement will be truthful.   The deposition is taken by a lawyer asking questions of the deponent.   Usually, the lawyer for the plaintiff will take the deposition of the defendant and the lawyer for the defendant will take the deposition of the plaintiff.   Either lawyer may take the deposition of other people who have knowledge about facts important in the case.

You can’t be forced to give a deposition, but the judge can dismiss your case if you are asked to do so and you refuse.  By filing a lawsuit you have to comply with the rules of procedure in our court system and there are consequences for failing or refusing to follow those rules.