Tennessee Injury Law Center : Lawyers for Personal Injury and Wrongful Death : Serving Memphis, Nashville, Knoxville

I have a personal injury case.  The lawyer is working on a contingent fee.  As far as I can tell he is going nothing.  He doesn't return my phone calls.  He has had my case for six months and no lawsuit has been filed or, if it has, nobody has told me it has.  I have lost confidence in this lawyer and want to fire him.  However, I can't afford to pay him for whatever work he might claim he has done.  What should I do?

First, I would encourage you to give the lawyer one more chance to explain what is going on and why he will not respond to you.  If you had a good reason to hire this lawyer in the first place, you should make an effort to give him a chance to explain his conduct.

If you hired this lawyer on a whim, or if you feel you have given him plenty of chances and you have lost all confidence in him, you can fire him whenever you want to.  More importantly, you almost certainly do not have to pay him at this time  for the work he has done.

What usually happens in these situations is the client finds a new lawyer and the new lawyer and the old lawyer work out a reasonable division of the contingent fee for the work done on the case.   Thus, the fee will probably not increase for you and the former lawyer's fee will be paid at the time your case is resolved (if it is successful).

However, you should know that it is sometimes difficult to find a lawyer to take over a case from another lawyer, particularly if there has been a lot of activity in the case before the first lawyer was fired.  Also, a lawyer cannot discuss the substance of a case with the client of another lawyer without the permission of the current lawyer, so you may not know that another lawyer will actually take your case if you fire your first lawyer.

The issues that arise from having to fire a lawyer  are  yet another reason why you should do appropriate research before you hire a lawyer.  Our Legal Guide, "Understanding How to Hire a Lawyer in a Personal Injury or Wrongful Death Case," can help you will that.  It will also help you in determining who to hire if you decide to fire your first lawyer.  

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I ate a local restaurant last night and about three hours later I began developing severe nausea, bad stomach cramps and diarrhea.   I was up all night.  I don't feel any better this morning.  I think I may have food poisoning.  What do I do?

It is possible that you simple case of the flu, and if you have recently come into contact with others in your family or at work who have that condition that may be the explanation for your problems.  It is also possible that you have some other medical condition that is causing these problems.

Then again, you may have food poisoning.  It is estimated  that 76 million foodborne illness cases occur in the United States every year after eating foods contaminated with such pathogens as E. coli O157:H7, Salmonella, Hepatitis A, Campylobacter, Shigella, Norovirus, and Listeria.  Each year approximately 325,000 people are hospitalized with a diagnosis of food poisoning, and some 5,000 die.  

You should contact your doctor and carefully explain all of your symptoms and indicate what you ate the night before and where you ate it.  You or a family member should also call the restaurant, explain the nature of your problem, tell them what you ate and when you ate it, and ask if anyone else has reported being sick.  You should also ask your doctor to do a test on a stool sample to determine if any bacteria are present that can cause a food-borne illness.

If you suspect food poisoning as the cause of the problem, or if the doctor tells you that it is, you should contact your local health department and report that problem.  The health department should immediately inspect the restaurant.  This will reduce the likelihood that additional  people will suffer  the same problems you developed.

If you develop food poisoning and you incur any more than minor medical bills, loss of injury, or any type of ongoing injury, you should contact an experienced personal injury lawyer to investigate the case and determine if you have a claim.  

We have handled several of these cases over the years and also would share this advice with you.  If you brought a "doggie bag" from the restaurant save it in the refrigerator and give it to your lawyer.  If the food that made you sick was from a can, bottle or box, save the remaining contents.  Do not alter them in any way.  These items could be important evidence in your case.

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I talked with my insurance agent today and she said I could save money on my auto insurance  if I reduced my uninsured motorist coverage to the minimum amount.  She said that in Tennessee everyone is required to have auto insurance so this coverage doesn't do me much good.  Is she right?
 

Well, she is partially right, but the advice she gave you is wrong.  

Uninsured motorist insurance coverage protects you if the driver of another car causes a wreck and have no insurance coverage or does not have sufficient insurance coverage to pay for the harm they cause.   Tennessee does require every car to have liability insurance coverage, but the law is relatively weak in that you just have to have proof of liability insurance coverage if the police pull you over, usually for something else.  In states that are really serious about it, such as North Carolina, you have to have proof on insurance coverage to get a license plate for your car, and if the insurance expires the State is notified and the police come out and take the tags off your car.

Thus, in Tennessee,  15 to 20% of all drivers are uninsured and in some cities, like Memphis, the number is even higher.  It is easy to see that you are at risk for being hit by a negligent uninsured driver and therefore will have to rely on your uninsured motorist coverage to protect you from medical bills, loss of income, and other damages from the accident.

I always recommend to my clients that they purchase as much uninsured motorist coverage as they can purchase given their family income.  You cannot buy more uninsured motorist coverage than the amount of liability coverage you have on the vehicle. 

You will be surprised how little it costs to purchase more coverage.  As your agent to give you a quote for various levels of liability insurance and various levels of uninsured motorist coverage.  I think you will find that uninsured motorist coverage is very affordable.

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I have a lawsuit pending and a jury trial is scheduled for this summer.  I am nervous about it because I have never been in the courthouse before, much less sat in a trial.  What is going to happen?

We are written a Legal Guide that addresses that very issue. "Understanding What Happens at Personal Injury or Wrongful Death Trial" will give you a step-by-step explanation of every aspect of a civil jury trial.  

We hope this Guide gives you some peace of mind as you approach the date of your trial.  There is little doubt that going through a trial creates stress, but that stress should be reduced by the explanation of the process as set forth in our Guide.

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My child  temporarily went into the Tennessee foster care program.  While she was in the care of her foster parent the foster parent ran a red light and my child was severely injured.  Can I sue the foster parent for harming my child?

In Tennessee you cannot sue the foster parent for causing this wreck and injuring your child but you can sue the State of Tennessee.  

Under Tennessee law foster parents are considered employees of the state.  If a state employee who is on the job causes a car accident and a person is hurt, the state employee cannot be sued but a claim can be filed with the State of Tennessee Claims Commission.  The claims process is similar to a lawsuit, but the case is decided by a judge (called a commissioner) and not a jury and the damages that can be awarded to any one person for any claim are limited to $300,000.  

Therefore, so long as you have not lost your parental rights concerning the child you can bring a claim on behalf of your child.  Unless you have paid medical expenses or can prove a loss of services, any money you recover ordinarily will be held by the Court for the benefit of your child.

As indicated above, the claims process is very much like any other lawsuit.  There are rules of evidence and procedure that apply.  The State of Tennessee will be defended by the Attorney General.   You will almost certainly need an experienced personal injury lawyer to help you with this type of matter.

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I just discovered that my daughter was sexually abused by a adult neighbor.  What can I do about it?

First, you should call the police and report that a crime has occurred.  Cooperate fully with the police department.

Second, you should take your child to a doctor for an examination.  Talk to the doctor about counseling for your child.  The police may also have some suggestions for counseling assistance. 

Third, you may wish to consider a lawsuit against the abuser.  Sexual abuse is a form of battery - the unlawful touching of one person by another.  It is what an known as an intentional tort.

Those would commit battery are responsible for the harm they cause.   This includes medical and counseling expenses, disability, pain and suffering, and loss of enjoyment of life, as well as other damages.

It is often difficult to collect money from child sex abusers, although our firm has had success doing so in the past.  An experienced personal injury  lawyer will do an investigation to determine if he or she can help you recover money from the person who harmed your daughter.

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My neighbor is in a lawsuit and she says that they are in "discovery."  What is that? 

The discovery phase of a lawsuit is the phase during which each side finds out about the other side’s claims and defenses. The various methods of gaining this information are often referred to as tools of discovery or simply “Discovery.” These methods include depositions, interrogatories, requests for production, medical evaluations, requests for admissions, and subpoenas.

To gain a complete understanding of what happens during discovery  and as a case progresses toward a trial, read our Litigation Guide called "Understanding The Steps in the Litigation Process."

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A guy I knew beat me up and broke my leg.  I have missed time from work and have several thousand dollars worth of medical bills.  This happened at his house and I know he has homeowner's insurance.  Can I sue him and get the homeowner's insurance to pay?

The homeowner's insurance company will almost certainly not pay for the harm you suffered.  Almost all (if not all) insurance companies have a provision in the insurance policy saying that they will not pay for acts that are intended by the insured.  Thus, because your leg was broken when the homeowner beat you up (as opposed to falling because a handrail on a stairway broke - an injury probably caused by negligence) - the insurance company will say they are not responsible because the injury was intended by their insured.

You can still sue the guy that beat you up but the problem is trying to collect money from him.  If you win the case you can seize money from his bank accounts, take a portion of his wages over time,  and try to sell his other assets.  However,  many times people who commit such acts don't have assets or even jobs.

Nevertheless, it is wise to discuss this situation with a lawyer and see if there is something about the facts which would make a lawsuit economically feasible under the circumstances.  Most lawyers will not charge you to consult with them about your potential case.

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I have a personal injury case and I am broke. There are companies that advertise on TV that say they will loan me money and let me pay them back out of the settlement I will get in my personal injury case. Should I take their money?

No.  The interest rate these companies charge is obscene. You should do everything you can to stay away from these companies.

How do you keep body and soul together as your case proceeds?   First, if you suffer an injury that results in loss of income or significant medical expenses you should immediately start cutting back on non-essential expenses in your lifestyle. You need to do what you can to limit expenditures to essentials – shelter, utilities, food, clothing and medical care.   

Second, tell your lawyer if you are having trouble making your monthly bills. He or she may be able to talk to some of your creditors, explain the situation, and get them to stop collection efforts until your case is resolved.

Third, depending on the seriousness of your injury, you may qualify for governmental benefits. Your lawyer can assist you with this issue. 

Finally, you may need to seek the help of family and friends to get you through this difficult time in your life. No one likes to ask another for help, but you find that many people will provide some measure of help if they can.

I know this answer does not provide much comfort. And, indeed, some people are forced to borrow money from these TV lenders despite the obscene interest rates. My only point is that such loans should be obtained only as a last resort.

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

No.  In Tennessee it is unethical for a lawyer to loan you money while he or she is representing you in a case.   Rumor has it that some lawyers will promise potential clients that they will help them with living expenses and that some lawyers actually do it.   Indeed,  some people say that some lawyers will offer money to clients in an effort to get hired by the clients.  However, this is  wrong, and a lawyer who promises to do so or actually does so should be reported to the Tennessee Board of Professional Responsibility at 800.486.5714.

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I was hurt in a car accident. I talked to a lawyer and he sent me a proposed contingency fee agreement.  The agreement says that I have to pay the expenses he incurs in prosecuting my case and that interest accrues on the expense money.  Is this normal?

It is normal for a lawyer handling a contingency fee case to ask the client to re-pay the lawyer for the money spent on case expenses out of any settlement achieved in the case.  It  is not normal, however, for lawyers to charge interest on the expense money they advance for case expenses, although it seems like more and more lawyers are charging interest.    

The lawyers who charge interest may have a contract with a private company that charges them interest, and then they pass the interest that they pay while the case is pending onto you as their client.  The interest rate may be very high – much higher than the “prime rate.”  The lawyer does not profit from this, but simply passes the cost of the interest on to you.

There is nothing illegal or unethical about this practice.  However, it does increase the cost of legal services and is one factor you should take into account in determining what lawyer to hire for your personal injury or wrongful death case.  If a lawyer wants to charge you interest, make sure you ask what the interest rate is and how it is calculated.  Sometimes the “APR” (annual percentage rate) is much higher than the quoted rate.

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I just settled my personal injury case and my lawyer told me that I have to re-pay my health insurance company the amount they paid for my medical bills from the accident.  That doesn’t seem fair.  Is my lawyer right?

Your lawyer is probably right.  Most health insurance policies have what are known as subrogation  or reimbursement clauses.  These clauses mean that if you get hurt and collect medical bills paid by your insurance company from the person who hurt you your insurance company gets paid back. 

If your insurance through a government-sponsored program like Tenncare or Medicare you also have a responsibility to re-pay the government out of any settlement you receive.

Sometimes a lawyer can persuade an insurance company or the government to accept less money than the company actually paid for your bills.  Whether this can be done depends on the type of insurance policy you have, the language of the policy, and various other factors. 

Good lawyers tell their personal injury clients about the probability of having to re-pay the health insurer  when they are initially hired in the case.  There is no reason why a client should learn about the obligation to re-pay a health insurer after a settlement is reached.

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I got hurt in an accident and my doctor said I should go to physical therapy.  The therapist is 20 miles away and it is very inconvenient to go to therapy.   Plus, it doesn’t seem to do any good.  Will it hurt my case if I just stop going?

First, let me suggest you set the thoughts about your legal case aside for a moment.  Your doctor prescribed physical therapy because he or she thought it would help you.  It might not.  But it might.  And the progress you see might be small.  But you still need to go to physical therapy because you want to do what you can to reach a full recovery. 

Going to physical therapy may not help your case, but not going as the doctor asked you to do could hurt your case.  Insurance adjusters and jurors may conclude that you may not have been having the problems you say you were having (or are having)  if you failed to follow your doctor’s advice.  If you have to go before a jury in your case the jury will be told that it is your responsibility to minimize your damages. 

So, follow your doctor’s orders because you want to do what you can to get better – and because you don’t want to hurt your case by not following those orders.

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