Contingent Fees

Most of my personal injury clients hire me on a contingent fee.  That means that I am not paid for my services until and unless I am able to get my client paid for his or her losses.

Paying for legal services only if you win is a modern concept.  We frequently hear the argument that being able to hire a lawyer on that basis fosters lawsuits.  I believe that that is true.

There probably would be fewer lawsuits in a world where only clients who have the means to fund a lawsuit could receive legal services.  Those of limited means who are injured by the negligence of others would just have to suck it up.

I would not like that.  True, it hurts when a case goes bad and I do not get paid.  It costs my office at least $20,000 to $30,000 in my time to try a simple case.  But I like helping people who cannot help themselves.  I like the fact that a person of modest means can have the same shot at justice as the rich guy.  I also like not asking my client to pay for my work until after I have gotten him or her paid.

There will always be an interest group complaining about contingent fees.  There is nothing wrong with protecting your own interests.  I just think there is a net gain for us all by leveling the playing field of justice.

By:  Peter G. Webb

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Circuit Courts Are Upon Us

The advent of the Circuit Courts in NH is upon us.  The idea is to centralize the services provided by the Court in order to reduce administrative costs and, in theory, to make the Court more convenient for the consumer.  One stop shopping.  Where we now have Probate Court, Family Court, Juvenile Court, and Criminal Court, all those will be under one roof with a common Clerk and, I assume, Judge

The Judiciary will be the ones most stretched by the new arrangement.  A judge will often have to switch gears from reviewing a Probate Accounting to accepting a plea on a DWI, to hearing a Custody issue.  All in the same hour.  It will not be easy and the Judges will have to be cross trained.  Patience will be required.

The transition will have its challenges.  All changes do.  The current system has been in place for decades and confusion will reign for a while.  Lawyers and litigants alike are used to lines of demarcation.  It will take more time to figure out where to go and what to do.  There will be less human contact with the people who are the system.  Like the self checkout lines at the Supermarket, you will have to ring things up yourself, then pay.

It is unfair to criticize unless one has a better idea.  Obviously, our legal system has been neglected and needs some updating.  Electronic filing will help.  Streamlining the litigation process will free up valuable resources.  It seems like implementing these changes gradually would make sense.  We are told that the economic realities do not give us that luxury today.

It is hoped that, after a period of adjustment, the system will be in a better place.  Time will tell.  The effort is well intended.  Let us hope it is well designed.

By Kent M. Barker

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Premises Injury

Legal Fault for Injury from Dangerous Conditions

New Hampshire law requires that owners and occupiers of property use a reasonable amount of care in the way they construct, use, and maintain their property.  They are not responsible for an injury simply because it happened on their property.  Landowners can be legally at fault for an injury only if the injury is caused by their failure to use reasonable care (negligence). What is reasonable care depends upon the circumstances.

By way of illustration, if an injury is caused by slipping on a banana peel and the banana peel had been on the floor for only 30 seconds, it would be difficult to argue that the property owner failed to exercise reasonable care by not being aware of and not picking up the banana peel.  However, if the banana peel was known by the property owner to have been on the floor and/or had been there for a prolonged period of time, then an injury resulting from someone slipping on it would appear to have been caused by negligence.  It is the negligence which creates legal fault, not the injury on the premises.

Lack of care by a property owner can take many forms: a store which doesn’t reasonably salt or sand the walkway it provides for patrons, a stairway built without the railing required by governing code, a floor which is unsafe because of unattended-to wetness or debris, a floor surface with a protruding tripping hazard, damage or injury caused by a dog, or any other dangerous condition which should have been known to exist and which could have been expected to cause injury. The legal obligation of property owners to use reasonable care is fundamental to promoting the level of safety we enjoy every day.

If it can be proven that an injury resulted from property owner’s negligence, the injured party is to be fairly compensated by the responsible party for the resulting injuries and losses.

Collect and Preserve the Evidence

A valid claim can be lost for the lack of evidence to prove it. It is essential to collect and preserve any evidence you can of how the accident occurred.  Photographs must be taken as soon as possible of the exact site of the injury and of the location in general, as well as of any outward signs of injury.  One should also be sure to keep copies of any documentation involved, such as:  accident reports completed, statements given, letters written or received, bills and receipts, witness information.

Insurance

As a practical matter, a viable personal injury claim usually requires insurance coverage on the part of the responsible party.  In premises injuries, the applicable insurance coverage is homeowner’s insurance or commercial property insurance.  Such coverage can apply to injuries on the insured premises, injuries caused off the premises by insured personal property including dogs, and to non-motor vehicle conduct by the insured on or off the premises.  However, such insurance coverage does not apply to an injury unless there is legal fault, i.e. negligence on the part of the insured which has caused the subject injury.

If you are a property owner and need to be defended against a claim arising out of a premises injury, it is the responsibility of your insurance company, up to the amount of your insurance coverage.  They will investigate the claim, hire and pay a lawyer to defend the claim and to pay compensation due the injured party (within the limits of your liability coverage).  It is a precondition to your insurance coverage that you cooperate with your insurance company.

Medical Care

Prompt and appropriate medical care is crucial.  It is obviously necessary for one’s health. It is also essential to ascertaining and documenting an injury.

Full, Fair and Adequate Compensation

In New Hampshire, a person injured by another’s negligence is entitled to compensation to reimburse his or her resulting losses.  The losses entitled to compensation include:  medical bills, incidental financial expenses, lost wages, physical pain, emotional upset, scarring, loss of enjoyment of life, permanent physical impairment.  Our law provides that the party injured by the negligence of another is to receive “full, fair and adequate compensation.”  That is to say that the amount of compensation is dependent on the magnitude of the harm suffered.

After the relevant facts of an injury are determined, after the evidence regarding the incident is assembled, and after any injuries have either stabilized or finally resolved, a claim is capable of being valued.  A claim cannot be competently valued before its components have been determined.  Those components will include: the strength of the evidence that the responsible party caused the injury by a lack of reasonable care; any contributing lack of care on the part of the injured party; the seriousness of the injury; the extent, intensity and duration of symptoms; the amount of medical bills; the extent and duration of the disruption of normal work and non-work activities; the amount of past and future income lost caused by the injury; the resulting emotional upset and the loss of enjoyment of life. Ultimately, the probable value of a claim is determined by the “market place,” i.e. the range of value which cases with comparable facts have yielded in local verdicts and settlements.

When the facts of an injury case have stabilized, the case is assembled for presentation to the responsible insurance company.  Thoroughness, persuasion, and mastery of the legal and factual issues make for a claim which must be taken seriously.  An insurance company will usually respond to genuine financial risk created by a properly prepared claim. As a business it does not have the option of simply doing what is right.  Instead, its task is to do what it can to resolve in its own best interest what it perceives to be a probable financial exposure.

Generally, settlement discussions are first attempted with the responsible party’s insurance company, with a view towards negotiating an acceptable settlement without a formal lawsuit or trial.  The vast majority of these cases are settled without the need for a trial.  However, it is often the ability to bring suit and to go to trial that prompts the responsible insurance company to discuss reasonable resolution.  If the insurance company is not acting fairly to resolve the matter, then a suit can be brought in the appropriate court.  Even though a lawsuit may have been started, the possibility of voluntary resolution can be explored at any stage of the process.

The commencement of suit is accomplished by formally serving the responsible party with a document notifying him or her of the claim.  The next stage of a suit is the exchange between the parties of all relevant or potentially relevant information.  That is first done by written questions (interrogatories) and later by oral question and answer (deposition).

Eventually, if the matter cannot be resolved between the parties voluntarily, testimony and evidence would be presented to a jury made up of 12 randomly selected citizens for their unanimous decision on legal fault and on what constitutes fair compensation for the proven losses.

Do I Need a Lawyer?

New Hampshire law provides that a negligently injured party is to receive fair compensation.  That includes more than just paying medical bills or lost wages.  As anyone who has suffered an injury can tell you, the financial consequences are a small part of an injury.

Insurance companies are contracted and paid to provide fair compensation in the event of such injuries.  However, minimizing the cost of such claims is in the business interest of an insurance company.  It is a process of competing interests and insurance adjusters and investigators are good at serving the interest of their employer.

The fact of the matter is that the successful exercise of legal rights requires skill and experience. At Winer and Bennett, LLP, you will receive the professional determination, expertise and resources required to make sure that your right to a fair recovery commands the respect it deserves.

By:  Peter G. Webb

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Modernizing Minimum Insurance Coverage

We recently concluded a case for a vehicle crash client who had suffered a broken hip which required surgery to fix.  She had been injured in a crash while she was a passenger on a motorcycle.  Her medical bills alone totaled $75,000.00.  The evidence clearly established that the motorcyclist, after turning right on to a road from an intersecting street, crashed into a pickup truck which was over the center of the roadway and in the motorcyclist’s travel lane.  It has been said that there is a prejudice against motorcyclists.  Well, the young female investigating police officer, who spoke with the young man in the truck at length at the scene but not the grey-bearded biker, somehow concluded that it must have been the biker’s fault.  The truck’s insurance adjuster latched on to that.  With some persistence after filing suit, we were eventually successful in getting through to a more rational mind up the insurance company’s food chain, and they accepted liability.  Unfortunately, however, our client’s right to recover fairly for her losses then ran into a larger obstacle in its path.

Under New Hampshire law, if you buy car insurance today, it can be as low as $25,000.00.  That is a 1981 law.  In 1981, gas was $1.38 a gallon, the median income of a family of four in New Hampshire was $25,332.00, and the median price of a new home was $83,000.00.  Today, gas is nearly $4.00 a gallon, the median income for a family of four in 2009 was $93,186.00 and $83,000.00 might get you an empty building lot.  We all know what has happened to the cost of medical care over that time.  If people on New Hampshire’s roads today are to have protection that our law provided to them 30 years ago, our law on minimum insurance coverage needs to be modernized.

The asset-less driver who caused our client’s crash had only $25,000.00 in insurance.  The truck driver’s insurance company quickly coughed up the $25,000.00, and I am sure was delighted by the fact that under New Hampshire law, it could demand a premium yet have such minimal responsibility.

Should the Legislature turn its energies from things such as fighting about whether they can carry guns while in session, maybe some effort could be directed to attending to victims of the negligent drivers on our roadways.  Of course, such an initiative would be sure to get the attention of the insurance lobbyists.

By:  Peter G. Webb

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Use of Information

One of my favorite quotes of the past ten years is by the author Philip Caputo who wrote “we drink greedily from the salt water of information while our throats are parched for droplets of wisdom.”  So it seems that our world edges ever closer to the inevitable conclusion that all of the information we have is useless because we do not know what to do with it.  I suppose I am not so pessimistic.  Mankind has always found a way to adapt to the technological changes that have a profound effect on our lives.  We survived the automobile and the telephone in this century alone.  The computer will be assimilated into the 21st century and our lives will be better.  It leaves the question of the moment, however, which is “how do we actually USE all of this information?”

The answer is one that is constantly morphing along with the changes in technology.  There are certain guidelines that I try to use to keep the torrent of information under control:

1.  Under commit.  It took some time to decide to actually do this blog.  It is not worth doing unless it is to be taken seriously.  Committing to too many different kinds of information attachments creates confusion and erodes credibility.  Like Gram said about the buffet line; take all you want but eat all you take;

2.  Set limits.  The telephone revolutionized communication but it created a situation where too much needless communication was done and it actually became counterproductive at times.  Like limiting a teenager’s time on the phone after school, we have to decide how much time and information is productive and where it no longer serves its best purpose.  An example is legal research.  Lawyers have mountains of case summaries at their fingertips, far more than ever before.  Processing, understanding and organizing all of that information takes precious time and energy.  There are few cases where a ton of legal research is necessary.  Managing ALL of our resources is an art and a skill that brings success and results that any lawyer strives for;

3.  Narrow the focus by learning.  I first touched a computer keyboard in college.  Advances in software are not things that I process or accept easily.  I resist it whenever I can.  The reality is that old dogs HAVE to learn new tricks in this day and age to stay competitive.  I try to keep an open mind and learn something new about the power of my computer each day.  I ask for help when I need it which is often.  I try to jettison the cumbersome processes and focus on what works, what information is valuable to me and can be used most efficiently;

4.  Integrate experience.  Law practice is still a people centered business.  Instant communication of information does not mean a response has to be shot back in an hour.  Cases some times have to ripen.  A non-response is often a very powerful response.  Using the information available in the context of years of experience is what gives each client the very best of his or her lawyer’s talent.

The list above grows and changes each day of my practice in the areas of Criminal, Family Law and General Litigation.  I strive to find the “pearls of wisdom” by using the information I have as best I can with thought, consideration, and realistic expectations of my self and others.   I try to make each day a little better than the last so that I can best serve my clients and the legal system.

By:  Kent M. Barker

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Family Law – Know What to Expect

The new year begins with a commentary on family law.  Specifically, on parental rights and responsibilities.  Too often, parties look at children, or time with their children as a commodity to be bargained for.  In October, 2005, the Parental Rights and Responsibilities Act, RSA 461-A, was enacted into law.  This act drastically changed the way that courts view parenting responsibility.  The act encourages frequent and continuous contact between the children of a divorced family with both parents.  In some respects, the change in the law has shifted the focus of the parenting aspect of family law cases from a “win/lose” situation to a more cooperative approach.

Most parties come into a divorce situation without knowing what to expect.  Since many aspects of a divorce include competition for possession of assets, they are more likely to view the parenting time aspect as the “win/lose” scenario.  It is the responsibilities of the lawyers on both sides of any such case to educate the parties that the parenting responsibility aspect of the case can and should be as much of a “win/win” result as possible.  It is clear from statistics and from direct observation that the best interests of the children are always served when this is the case.

By: Kent M. Barker

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It’s All About Balance

The rights of someone injured at work are often misunderstood by those who haven’t had the misfortune. The way it is supposed to work is that if one can prove that employment activity caused injury, one is eligible to receive:  60% of any resulting income loss, payment of the necessary medical expenses, help returning to work, and a modest payment for permanent bodily impairment. To be entitled to those benefits, the worker doesn’t have to show that the employer caused the injury. He or she need only prove that the injury was caused by work activity. This is the law of workers’ compensation.

However, workers’ compensation rights are determined in the context of an adversarial process. The employer’s insurance company, therefore, has the right and often will challenge the evidence that there has been an injury, that the injury happened at work, that the medical care is reasonable and/or related to the injury, the extent to which the injury is disabling, whether or not and the extent to which permanent impairment has resulted, etc. These disputes in a workers’ compensation case are not decided in court.  There is no right to a judge or jury in workers’ compensation cases. By law, the testimony and evidence is heard and decided by a hearings officer at the New Hampshire Department of Labor.

Under this law, even if negligence by the employer’s or a fellow employee causes the workers’ injury, the worker may not make a claim for the usual compensation for injury. The injured worker’s rights are limited to the above workers’ compensation benefits.  He or she has no right to sue to seek the compensation to which one  would be entitled for injury outside the workplace: 100% of past and future lost income, loss of enjoyment of life, scarring, the emotional impact of the injury, physical pain, etc. The rationale for this law is that, in exchange for the employee’s right to benefits despite the absence of any employer fault, the law gives the employer a blanket immunity from suit by all injured employees. This law, first passed in 1911, is justified as a balancing of burdens and benefits between the employee and the employer by our Legislature and our  Supreme Court in the interest of the efficiencies of the workplace.

However, a recent change in the law has suddenly increased the burden-side of this “balance” for the  injured worker.  Today our laws are being interpreted by our courts to permit  negligence on the part of the immune employer to be raised as a defense in an injured worker’s claim against a third party who contributed to cause the workplace injury. Our courts had long deemed the concept of employer fault eliminated by our workers’ compensation statute. Yet the concept  has suddenly reappeared. While the employer continues to not be legally liable to the injured worker for injury caused by its negligence, the employer’s negligence can now nevertheless be used against the injured worker.  The balance has become unbalanced.

By: Peter G. Webb

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Trend of the Law in New Hampshire

The  trend of New Hampshire law today is to reduce the ability of a person wrongfully injured to recover for his or her losses.  It used to be that if you were a passenger injured in a car crash by the combined negligence of your driver and another driver, you were entitled to be made whole for your losses from either or both negligent drivers.  Under our current law the priority is no longer on making the innocent victim whole. Today, the law instead gives a higher priority to making sure to limit each negligent driver’s responsibility to his or her particular percentage of fault, whether or not the driver is unidentified, uninsured, insolvent or immune from suit under state law.  The legislation which has created this shift could be chalked that up to a change in social  values, but what  it means is that if you are the victim of someone else’s negligence, your chances of recovering for your losses and harms are less than they used to be.  One wonders whose interests are served by that law?

By: Peter G. Webb

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