Hiring a Lawyer

April 30, 2011

Can A Tennessee Lawyer Pay My Living Expenses?

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? I have lots of bills and the lawyer has said he will help me with some of those bills and I can pay him back out of my settlement?

No. In Tennessee it is unethical for a lawyer to loan you money while he is representing you in a case.

Many personal injury victims have problems keeping body and soul together while their personal injury case is pending. Many lawyers feel bad for the client and want to help them. Indeed, from time to time we hear rumors of some lawyers actually offering potential clients money to persuade the client to employ them to handle their case.

April 25, 2011

Kentucky Resident Hurt in Wreck in Tennessee – Do I Need a Tennessee Lawyer?

by The Law Offices of John Day, P.C.

I live in Kentucky but was injured in a wreck with a big truck on Interstate 40 right outside of Nashville. Do I need a Tennessee lawyer?

You will almost certainly need a Tennessee lawyer. A Kentucky lawyer will probably not be familiar with Tennessee law and will not be able to file a lawsuit here. Quite candidly, an experienced personal injury lawyer from Kentucky would probably be able to negotiate a settlement for you, but once again may be hampered by a lack of knowledge of Tennessee law and procedure that could impact the value received at settlement.

If your hire a Kentucky lawyer he or she will probably ask the assistance of a Tennessee lawyer to help him or her with the case. I have helped lawyers from dozens of states in this situation, and it works quite well if the out-of-state lawyer calls us early enough to protect your rights. Tennessee law requires that such cases be filed within one year of the date of accident and, unfortunately, several times a year I get a call from an out-of-state lawyer who missed the one year deadline.

April 14, 2011

What Is a “Contingent Fee?”

by The Law Offices of John Day, P.C.

I hear personal injury attorneys advertise that they will work on a "contingent fee." What does that mean?

A contingent fee is a fee that is payable only in the event the case is successful. No fee is owed if the case is not successful.

In personal injury and wrongful death cases some attorneys will accept the case for a percentage of the recovery. For example, if an attorney agrees to accept representation in a case on a one-third contingent fee, that means that the attorney will not charge any money if the case is lost. If the case is successful the attorney will be paid one-third of the total recovery. For example, if the recovery is $60,000, the attorney’s fee is $20,000. If the case is lost, the attorney charges no fee for the work performed on the case.

The advantage of the contingent fee for the client is that he or she does not have to pay an attorney a flat fee ( a set amount) or an hourly fee to handle the case. Rather, he or she can wait and pay a fee at the end of the case and, if the case is unsuccessful, there is no obligation to pay any fee whatsoever.

April 5, 2011

My Daughter Has Been Sexually Abused By Her Step-Father. What Do I Do?

by The Law Offices of John Day, P.C.

I just discovered that my husband has been sexually abusing my 12-year old daughter. What do I do? I am scared and very angry.

Here are my thoughts:

Leave the house with your daughter and any of your other children and immediately report this matter to the police. If there is any physical evidence of the abuse that you can readily put your hands on take it with you.
Cooperate fully with the police. Your daughter will almost certainly need a medical examination. Cooperate with that effort.
Follow any reasonable instruction from the police department and the medical personnel.
If there is sufficient evidence the police will probably arrest your husband immediately. You will then be safe to go home.
Do not bail your husband out of jail. Do not give him a chance to act right based on a promise that he will not act this way again.
Talk to a lawyer about getting a court order keeping your husband away from the house, you and the children of the event he makes bond and is able to get out of jail. If there is any visitation it should be supervised. The district attorney will probably be able to help you get this court order.
Get your daughter (and perhaps your other children) counseling. If you cannot afford private counseling the area rape trauma and sexual abuse center will give you a list of names of counselors who work for reduced rates. Some centers even provide some level of free counseling. You may need counseling yourself.
Talk with a divorce lawyer. You cannot stay married to a man who will harm your children.
You may wish to talk to a lawyer about filing a lawsuit against your husband. Sexual abuse is not only a crime but can also result in civil liability.

March 10, 2011

Do Tennessee Lawyers Have to Carry Malpractice Insurance?

by The Law Offices of John Day, P.C.

Do lawyers in Tennessee have to purchase legal malpractice insurance?

No. There is no requirement that lawyers in Tennessee have legal malpractice insurance.

However, responsible lawyers purchase malpractice insurance to protect their clients from losing money in the event that the lawyer makes an error. Lawyers are human (believe it or not!) and, like anyone else, they make errors. Most of those errors do not result in any demonstrable loss to their clients, but from time to time losses occur. In those cases, malpractice insurance is there to protect the client from financial harm.

February 23, 2011

No Lawyer Will Take My Case

by The Law Offices of John Day, P.C.

I believe that I am a victim of malpractice by a doctor, but no lawyer will take my case. Why not?

There are several possibilities.

First, there are relatively few lawyers in the state that represent medical malpractice victims. In fact, my guess is that far less than one percent of lawyers regularly handle medical malpractice cases for patients. Therefore, you may be asking the wrong lawyers.

February 9, 2011

Can I Hire an Out-of-State Lawyer for a Medical Malpractice Claim?

by The Law Offices of John Day, P.C.

I think I have a medical malpractice claim in Tennessee. I live in Tennessee and the malpractice occurred in Tennessee. Can I hire an out-of-state lawyer to represent me in this case?

Yes, although the out-of-state lawyer must either have a Tennessee law license or must work with a Tennessee lawyer on the case.

The more important question is why would you hire an out-of-state lawyer to represent you? There is a real advantage to hiring a lawyer who is familiar with Tennessee law (the law of every state is a little different, and Tennessee has some very unusual aspects to its medical malpractice law) and who knows the way our legal system works. There are some very good medical malpractice lawyers in this state who have experience in a wide variety of medical malpractice cases, and thus it rarely makes sense to go to the trouble of finding an out-of-state lawyer to work on a case.

February 8, 2011

Can My Personal Injury Lawyer Increase Her Fee?

by The Law Offices of John Day, P.C.

I hired a Tennessee personal injury lawyer to represent me in a car wreck. She said she was going to charge a one-third contingent fee and the fee agreement says just that. The case did not settle and she says she wants to charge forty percent of the recovery since she has to prepare for trial. Can she do that?

No, not unless the contingency fee agreement says that she can charge more in the event the case goes to trial. If the agreement is silent on this issue, she can charge you more than one-third only if you agree to revise the contract.

If the contract does give her the right to charge more if the case is tried but the higher amount is not specified she can only charge a reasonable fee. Whether forty percent is a reasonable fee depends on the circumstances.

January 28, 2011

Does My Personal Injury Lawyer Still Get Paid if I File Bankruptcy While My Case is Pending?

by The Law Offices of John Day, P.C.

I have a personal injury case pending in state court in Tennessee. I just had to file bankruptcy. I listed my personal injury case as an asset on my bankruptcy filing. My bankruptcy lawyer says that the bankruptcy trustee will now control my case. Will my personal injury lawyer still get paid?

Your personal injury lawyer will have to file a motion with the bankruptcy court asking for permission to continue to represent you in the state court action. He or she will also have to seek permission to charge the fee (probably contingent fee) that you agreed to pay. If the bankruptcy court approves these requests, the case will continue and if it is successful your lawyer will be paid. Any settlement of the case will have to receive approval of the bankruptcy court.

January 24, 2011

Why Do Some Lawyers Have Malpractice Insurance?

by The Law Offices of John Day, P.C.

I was talking to a lawyer about my potential case the other day and he mentioned that he had malpractice insurance. What does that mean?

That means that the lawyer has purchased insurance that protects his clients from financial loss in the event that he commits an error that causes a loss. If the lawyer is alleged to have made an error that hurts a client and gets sued as a result, the lawyer’s malpractice insurer company will hire a lawyer to defend its insured and pay any judgment against the insured up to the amount of the insurance.

Responsible lawyers carry malpractice insurance even though there is no law or court rule in Tennessee that requires lawyers to purchase such insurance. Indeed, I would be very wary of hiring a lawyer who did not carry malpractice insurance. The fact that a lawyer has insurance means he cares enough about his clients to try to protect them from the consequences of an error.