Articles Posted in Litigation Process

My lawyer settled my personal injury case.  He said that he put the check for $60,000 in his trust account and that I would get my share in 10 days.  Ten days later I received a check for $38,500 – the amount I was supposed to receive.  However, I deposited the check from my lawyer’s trust account in my checking account and just found out it bounced.  What should I do? 

This should not happen.  Lawyer trust accounts are accounts that are kept separate from a lawyer’s operating account – the account he or she uses for rent, payroll,etc.  Trust accounts are a "parking place" for client money.  There should never be a bounced check on that account because the account is holding client funds that have already "cleared" the bank  – and client funds can only be used for client purposes.

Thus, you need your attorney to explain exactly how this happened.  If you do not get an immediate, satisfactory answer,  call the Tennessee Board of Professional Responsibility immediately.

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

I have a personal injury case in Tennessee.  My doctor has to give a deposition in my case and my lawyer just told me that the doctor charges $1500 per hour for a deposition.  What is going on?  I have already paid this doctor over $15,000 to care for me and now he wants to charge $1500 per hour to talk about it!!! 

Unfortunately, this is getting to be a bigger and bigger problem.  A doctor is permitted to charge for their time when  asked to give a deposition involving care which he or she gave to a patient who is involved in a lawsuit.  The charge must be "reasonable."

So, the question is $1500 per hour "reasonable?"   Part of it depends on how much the doctor ordinarily charges for his time.  In a 2000 hour year a charge of $1500 per hour results in revenue of $3,000,000 per year.  

My truck wreck case is coming to trial before a Nashville, Tennessee jury soon. There will be a 12-person jury.  Must they all agree on the result?

Yes, unless the lawyers agree otherwise, all 12 jurors must reach an agreement on the result in the case.

In some states, the law permits jurors to reach a result based on the votes of a "super majority" of the jurors.  For example, some states allow 9 jurors to agree or 10 to agree on one result and the other 3 or 2 jurors can reach a different result.   That is not true in Tennessee – all 12 must agree.

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.