Tennessee Injury Law Center

September 17, 2010

Why Didn’t My Lawyer Give Me My Money?

My personal injury case settled three days ago. I signed the check and gave it to my lawyer. I still haven’t got any money. What is going on?

When a personal injury case is settled, the insurance company sends a check and a release to the claimant’s lawyer. The lawyer asks the claimant to sign the release and endorse the check. When the check is endorsed, it is deposited into the lawyer’s trust account. The lawyer cannot immediately write the client a check because the insurance company’s bank has not yet paid the check. It can take as many as 10 business days for a check to "clear." As soon as the check clears the lawyer’s bank the lawyer will be able to write you a check.

The lawyer may not be able to write you a check for all of the money to which you are eventually entitled. For example, if you received Medicare benefits in connection with your personal injury, Medicare must be re-paid from the proceeds of the settlement. Medicare is horribly slow about getting settlement figures to lawyers in these cases, so the prudent lawyer holds out more money than is probably required so that he or she can be assured that there will be enough money to repay Medicare. Thus, the lawyer may write you one check now and another check after the Medicare issue has been worked out.

September 16, 2010

I Don’t Think My Lawyer Has Any Money!

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

I was in a trucking accident some time ago and was badly hurt. I went to see a lawyer based on the recommendation of a friend at church. I don’t mean to be rude but the lawyer’s office was a disaster. The carpet was nasty, the place smelled like cigarettes, there were papers and books everywhere, and there was dust everywhere. The lawyer was eager to represent me and said he would work on a contingent fee, but said I would have to pay the fee to file the case in court. Is that normal? Should I be concerned at the look of the office?

First, it is not normal for a personal injury lawyer to ask the client to pay court costs or any of the other costs of litigation. Most lawyers in this type of case advance those costs, especially for people of low or moderate incomes, and you are appropriately wary of a lawyer who asks you to advance those costs.

That request, and the condition of the office, may indicate that the lawyer is having some financial issues. (Of course, it may just mean he is a cheap slob.) The financial condition of the lawyer you hire is important, because the lawyer must have adequate resources to finance your case and work without pay while the case is pending. A lawyer who cannot afford to finance the case may hire poor quality experts or not do things necessary to put your case forward in the best way, all of which can hurt your ability to recover the true value of your case. Likewise, a lawyer who is short on capital may recommend that you settle your case for a lesser amount than its true value to ensure that he gets paid for the work he has done.

September 15, 2010

Do I Need a Tennessee Lawyer?

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

I live in South Carolina 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 South Carolina 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 South Carolina 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 South Carolina 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.

September 14, 2010

Why Was I Charged $5432 for Court Reporter Fees?

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

I just settled my personal injury case. We were a week away from trial when we settled. When I got my money there was $5432 deducted for court reporter fees. What are they and why did I have to pay it?

The typical fee agreement in personal injury and wrongful death cases requires that the client reimburse the lawyer for out-of-pocket litigation-related expenses. Many times, the most significant of these expenses are fees paid to court reporters.

Court reporters don’t just write down and transcribe testimony in court. They also write down and transcribe the testimony of witnesses and parties during the discovery phase of a lawsuit. There is usually a court reporter at each deposition, and they charge not only for being present but also for writing down and transcribing testimony. In Nashville, a court reporter charges about $2000 for one day of deposition testimony.

September 13, 2010

What is Demonstrative Evidence?

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

My lawyer said that he needed to spend money on demonstrative evidence to help us win the case. What is demonstrative evidence?

Demonstrative evidence are things that demonstrate or show information to the jury. Demonstrative evidence may be an enlargement of an x-ray showing a fracture in a bone, a metal fixation device removed from a broken bone, a model of the scene of the accident, or a video that depicts a day-in-the-life of someone that suffered a catastrophic injury. Demonstrative evidence also includes computer animations.

Demonstrative evidence tends to educate jurors by allowing them to see or touch something, as opposed to just hearing the spoken word.

September 11, 2010

What is A Structured Settlement?

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

My neighbor mentioned that he settled his personal injury case and received a structured settlement. What is that?

When personal injury and wrongful death cases are settled, money is often paid in a lump sum. In other words, a check is made payable to the claimant and the claimant’s lawyer. The claimant’s lawyer deposits the check in his or her checking account and, when the check has "cleared," the lawyer writes a check to the client. The amount of the check to the client is reduced by attorneys’ fees and expenses, and is often reduced by monies needed to pay off subrogation interests or medical liens.

In a structured settlement, the claimant receives sufficient up-front money to pay attorneys’ fees and expenses, subrogation interests, and liens and some amount of money for the claimant the claimant also receives a contractual right to receive payments in the future. This right is in the form of annuity. Payments can be monthly, quarterly, annually or every 5 years. Indeed, there is virtually no limit to how the annuity can be structured.

September 11, 2010

What Happens If the Person That Hurt Me Dies?

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

I was hurt in a head-on automobile accident. The driver that crossed the centerline and hit me died in the wreck. Do I have legal rights against him even if he is dead?

Yes. Although you can’t sue someone who is dead, you can sue his estate. If an estate is not opened for him, you (through your lawyer) can petition the court to have an estate opened so that you can sue it and collect the monies you are entitled to recover.

The fact that the person who hit you died does not relieve his insurance company of the obligation to defend the case and pay the monies to you that you are entitled to receive under the law (up to the liability insurance policy limits).

September 9, 2010

What Are My Rights When I Was Hurt in a Car Wreck While I Was Working?

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

I was running an errand for my employer last week and was in car wreck. The other driver ran a red light and broad-sided me. My car was totaled and I spent three days in the hospital. What are my rights?

You have two potential claims. First, you have a worker’s compensation claim because you were injured in the course of employment (assuming your employer has five or more employees).

Second, you have a claim against the driver of the other car. This is called a "tort" claim.

September 7, 2010

Should I Pick a Lawyer Based on His or Her Age?

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

I need to hire a lawyer in a personal injury case. Should I take age into consideration? I am worried about hiring a law who lacks experience.

I happen to think that 53 is a perfect age for a personal injury or wrongful death lawyer. In a couple weeks, I will think that 54 is the perfect age.

Seriously, age is a relevant factor, but age can be misleading in several respects. I remember about 25 years ago I was hired in a case and the opposing lawyer was at least 20 years older than I was. He was confident and forceful and attempted to use his age as an advantage. I looked him up in a legal directory and found out that he finished law school two years after I did – he attended law school after finishing another career.

September 3, 2010

I Got Hurt on the Job and Then My Employer Fired Me!

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

I hurt my back at work. I told my boss about it and he told me to go to the doctor. The doctor said I needed to take off work for at least one week. When I told my boss that he got angry and fired me. What are my rights?

First, you still have a right to worker’s compensation benefits (assuming your employer has five or more employees and thus is covered by the worker’s compensation program.)

Second, you may have a claim for retaliatory discharge. An employer cannot fire you for seeking or obtaining the benefits you are entitled to receive under the worker’s compensation law.