Articles Posted in Litigation Process

My case just settled.  I went to my lawyer’s office today, and signed the check and a release of all claims.  My lawyer then said that he needed to put the check in his trust account and I could have my money in about 10 days.  Can he do that?

Your lawyer is doing exactly what he should do.  Lawyers maintain trust accounts to hold client funds.  Your lawyer was required to deposit that check into his trust account and not disburse any funds until the check was paid by the issuing party’s bank. 

Some checks take as long as ten business days to clear.  Believe it or not, last year I had  a settlement check issued by a defendant bounce.  Thus, if I would have paid the money to my client without ensuring the check had been paid by the issuing bank I would have been giving my client money that belonged to another client.  That would create a big problem, both for my clients and for me.

I am involved in a medical malpractice case in Tennessee state court.  How many jurors must agree to a given result?

Unless the parties to the lawsuit agree otherwise, twelve jurors will decide the case and all twelve must find in favor of the plaintiff (the person bringing the lawsuit) or the defendant (the person or entity that has been sued.)  If less than twelve people agree on the outcome, the judge will declare a mistrial and the case will have to be tried again.

If I file a personal injury lawsuit will the person I am suing be able to see my medical records? 

Your medical history is important in any case in which you are claiming to have suffered a physical or psychological injury as a result of someone else’s negligent or intentional act. Your medical history establishes the baseline of your physical or psychological well being before the injury. You can only recover in the lawsuit for the injury caused by the act or omission of the responsible person. You may not recover damages for physical and mental suffering or medical care necessitated by preexisting conditions. When a preexisting condition is made worse you can recover damages for the worsening of the condition. Your medical history will be important to proving this claim.

In Tennessee, most judges will permit your opponent to see your medical records if the the request  "is reasonably calculated to lead to the discovery of admissible evidence."   Thus, if you injured your leg in the incident giving rise to the litigation, the records for prior medical treatment at an OB-GYN may be able to be kept private.  

 I was hurt in a car wreck.  My left arm and leg were injuried.  I don’t need surgery right now but who knows what will happen 10 years from now.  Can I settle my case for my medical bills, my lost wages, and my pain and suffering and an agreement that the at-fault driver’s insurance company will pay my future medical bills if I have any?

You can try, but in 29 years as a lawyer I have never seen the argument work.  If the at-fault driver’s insurance company believes that its driver is at fault and they want to settle the case, they want to settle all personal injury-related claims at one time.   (They will usually settle property damage claims seperately.)   They will not agree to leave open the issue of future medical expenses.

Thus, if a doctor says you will probably need a future surgery because of the injuries you sustained in the wreck, the cost of that surgery and related damages can be part of settlement negotiations.  If the doctor says that future surgery is possible, then the amount of the possible surgery cannot be included.  If there is a trial, the court will allow testimony only on whether a future surgery is probable and, if a doctor says it is, then the court will allow presentation of evidence on the cost of the surgery and related damages.

I am thinking about hiring a personal injury lawyer.  What obligations do I have as a client of a personal injury lawyer?

I can answer that question only in regard to the expectations of our Tennessee personal injury law firm. We believe that the lawyer / client relationship is a special one and, just like the lawyer has certain obligations to the client, the client must do certain things to assist the lawyer in the representation. We expect the following of our clients:

• You have an obligation to tell your lawyer the truth.
• You have an obligation to tell your lawyer the truth even if you think it will hurt your case or the truth embarrasses you.
• You have an obligation to truthfully testify at trial and in depositions.
• You have an obligation to truthfully answer interrogatories.
• You have an obligation to produce documents in your possession that your lawyer asks you to produce.
• You have an obligation to promptly respond to your lawyer’s requests for information.
• You have an obligation to let your lawyer know of changes in your medical condition.
• You have an obligation to let your lawyer know if you move or you change your phone number.
• You have an obligation to tell your lawyer if you are injured in another incident.
• You have an obligation to tell your lawyer if you are arrested or get a traffic ticket.
• You have an obligation to tell your lawyer if you are contemplating filing for bankruptcy.
• You have an obligation to listen to and carefully consider your lawyer’s advice. You are not required to take the advice, but you should listen carefully to the advice and understand the potential impact to your case if you do not take the advice.

I am sure my case is going to settle soon. Can my attorney lend me money toward the settlement I know I am going to receive?

No.  In Tennessee it is unethical for an attorney to loan you money while he or she is representing you in a case.   Rumor has it that some attorneys will promise potential clients that they will help them with living expenses and that some attorneys actually do it.   Indeed,  some people say that some attorneys will offer money to clients in an effort to get hired by the clients.  However, this is  wrong, and an attorney who promises to do so or actually does so should be reported to the Tennessee Board of Professional Responsibility at 800.486.5714.   This sort of conduct can result in discipline against the attorney, including the loss of his or her law license.

Why should you care about the ethical failings of an attorney?  If the attorney is willing to risk his or her law license to get  your case, do you really think you can trust them to represent you with your best interests in mind?

I have a personal injury case.  The at-fault driver’s insurance company has offered me $33,000 to settle the case.  I don’t think it is enough and I want a trial.  Will the jury know that the defendant offered me $33,000? 

Under Tennessee law, the answer is generally "no."  Absent exceptional circumstances, settlement offers are not admissible into evidence at a trial.  

Likewise, settlement proposals are not admissible into evidence at ta trial.  Therefore, if you offered to settle your case for $50,000, and then went to trial and sought a greater amount of damages, the insurance company would not be permitted to tell the judge or jury that you were willing to settle for $50,000.