Articles Posted in Litigation Process

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I live in Tennessee.  My son  was sexually abused by a neighbor when he was 14.   He is 18 now. Can my son sue the abuser, or has the time for taking legal action expired?

Yes.  Tennessee law requires that he must  file suit before his 19th birthday.   The failure to file suit by his 19th birthday will result in a loss of his rights.

People sexually abused in Tennessee when they are adults have only one year from the date of the incident to file suit, but special rules apply if the person who was the abuser was a "therapist" within the meaning of T.C.A. Sec. 29-26-203.   If you think you have been abused by a therapist (or anyone else for that matter), contact an experienced personal injury lawyeras soon as possible.   Make sure you discuss this with your parents as soon as possible if you have not already done so. 

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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.

 

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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.

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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?

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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.

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 I was hurt in a car wreck in Sparta, TN.   I lost six weeks from work but I am now back to work and think I will be able to work in the future.   I hired a lawyer but we could not get the case settled.  A lawsuit was filed.  Now, the insurance company of the guy that hit me says they want my federal tax returns.  I don’t think it is any of their business.  Can they make me give them my tax returns?

Probably not, although the defense  does have a right to have proof of your loss of income.

If our clients are uncomfortable about releasing their tax returns, we typically argue that tax returns are not discoverable in personal injury cases and instead will produce only the W-2 forms (which show the income earned from each employer).  Our position is the tax return contains much more data than income information and that in a person injury case it is only data about income that has anything to do with the case.

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I won a personal injury trial in circuit court in Smith County, Tennessee?  How long does the defendant have to appeal the jury verdict?

First, the court has to enter a judgment on your verdict.   The defendant then must file a notice of appeal to the Tennessee Court of Appeals within 30 days.

However, the defendant can ask the trial court to set aside the verdict, grant a new trial or reduce the verdict.  If the defendant wants to do this, the appropriate papers must be filed within 30 days after the judgment is entered in your case.   If the defendant files these papers on time, the court will usually have a hearing and then issue a ruling.  If the court refuses to set aside the jury verdict or grant a new trial, the defendant will have 30 days from the date that of the court’s order to appeal.  If the court reduces the verdict, you can accept the lower amount, accept it under protest and appeal within 30 days, or elect to have a new trial.  

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I was hurt in a car wreck that wasn’t my fault.  I don’t have any health insurance.  I have medical payments coverage on my car insurance but it was only $10.000 and it has already been paid to various doctors and hospitals.  Now, my doctor says I need physical therapy but I don’t have the money.  Worse yet, my lawyer says he won’t pay for it.  What do I do?

Your lawyer is correct.  Under ethics rules applicable to lawyers in Tennessee, a lawyer cannot advance you money for any medical treatment.  A lawyer can advance money for the benefit of the client for litigation expenses, but he or she cannot provide money to a client (or potential client) for any other reason during pending litigation or in anticipation of employment.

What can the lawyer do to help you?  Sometimes health care providers can be persuaded to treat a patient who has a pending personal injury case if the client promises in writing to pay them out of any settlement monies.  Under this type of arrangement, the client directs the lawyer to withhold money out of any settlement and directly pay the health provider, and the lawyer promises the provider that he or she will do so.   No health care provider must do this, but it is not uncommon for physical therapy companies to agree to do so if you have a case where the other driver is clearly at fault.

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I believe that I was a victim of medical malpractice in the VA hospital in Nashville.  How much time do I have to file a medical malpractice claim against the VA? 

You cannot file suit without first filing a claim.  Generally, the claim must be filed in writing using the appropriate forms and paperwork within two years of the time after the accident or injury.  The claim must be filed with the appropriate federal agency.

The government then has six months to evaluate the claim.  It may try to settle the case, or it may deny the claim.  When the government denies a claim the claimant then has a right to file suit in federal court.  If the government does not deny or settle the claim within six months you can deem the claim denied and file suit in federal court.

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