How Delays Deny Justice

The word came down from a clerk in a Hillsborough County Family Court (9th Circut) that all final hearings were being scheduled out to June.  Our case is a contested custody case where the Guardian Ad Litem has already made a recommendation.  This leaves a delay of about nine months for this family to move on to a new way of doing things.  It is difficult to underestimate the damage that can be done as a result of the time that will pass without a Final Order.

Criminal cases get priority where a defendant is incarcerated.  With a liberty interest at stake, it is only fair that incarcerated defendants get into Court faster.  The misconception is that the Criminal system does not suffer any denial of justice due to the late scheduling of trial time.  Nothing could be further from the truth.  Cases without incarcerated defendants still require prompt resolution for defendants and victims alike.  Repeated trips to the Court only to be told that the case has been rolled over to another date cause added legal costs, lost work time, and wasted public resources like police time that could be better used to serve the community.

The problems with scheduling hearings in a more timely fashion are not the fault of the Clerks or the Judges.  The problem is money and it is no secret.  Prosperity will return when the political landscape is more predictible.  The key for the justice system is to resist panic.  Economies prosper where there is safety and order and infrastructure.  The State needs to circle the wagons, work a little harder, and continue to produce the best access to the Court that it can.  Businesses need to see that NH is a stable place where companies and their workers can feels safe and have their disputes settled fairly.  Investment in NH will return when it is seen by the national and world business community that we have best weathered the storm and kept our doors open while others have paniced.  They will choose NH as a place to live and work and pay taxes.  Only then will State revenue rise and allow some breathing room for the Court system.

Justice delayed is justice denied.  The road out of the current delay problems is to work harder, be patient, and remain confident that prosperity will return.  It is the NH way and has always been successful in the past.  This crisis will be no exception.

By:  Kent M. Barker

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Legal Issues of a Car Crash

REPORTING THE CRASH

A motor vehicle crash should be reported to the police and/or the Department of Safety.  Although injury or vehicle damage may initially seem modest, any crash must be treated seriously.  At the scene, exchange name, address, and insurance company information.  If the police respond, they will make out a report.  That report will be available at the local police department and/or the Department of Safety in Concord.  You should file an Operator’s Report with the Department of Safety, if there is no police report, and damage appears to exceed $1,000.00 in value or if there is personal injury.

Immediately advise your auto insurance company of the facts of the crash.

If possible, take photographs of any vehicle involved, as well as of the scene of the crash and any visible injury, to assure that you have complete evidence.

DAMAGE TO YOUR CAR

The car insurance company of the responsible driver is to pay the cost for the repair of a damaged vehicle.  If the repair would cost more than the value of the car, then the fair market value of the car must be paid.

If you had collision insurance, you have the option of having your insurance company take care of the property damage.  Although, what they pay will be reduced by your deductible, it is sometimes easier to go initially through your company.  They will then seek reimbursement from the responsible driver’s insurance company, and obtain deductible reimbursement for you.

In either case, the processing of the property damage claim requires that you make your vehicle available to be examined for an appraisal of the repair costs.

The responsible insurance company will also be obligated to pay expenses incurred for a rental vehicle, for a reasonable time while the damaged vehicle is being repaired or until payment is made for the value of a totaled vehicle.

MEDICAL BILLS

The injured party must obtain the medical care necessary to diagnose and treat any injury suffered.  The treatment records from that care are essential to substantiate an injury resulting from a crash.  To pay for the required care, you may have two insurance options.

Submit your medical bills first to your health insurance company, if you have it.  Their obligation to pay depends upon the terms of the policy under which your health insurance was purchased.  Submit the bills for this determination.  Usually, health insurance coverage will cover the bills, subject to a right to eventual reimbursement, should you later receive compensation for your injuries by the responsible automobile insurance company.

A second option for funding medical care is your car insurance.  Under New Hampshire law, if you have liability insurance, a private passenger auto insurance policy must also have coverage for your medical bills and for those of your passengers.  The amount of this coverage depends on what you purchased.  This medical bill reimbursement is available regardless of who caused the accident.  This coverage is available even if you also have medical insurance to pay the bills.  If medical insurance pays your bills, this portion of your car insurance can be used to pay your deductible and/or co-pays.  Your automobile insurance company is not entitled to reimbursement out of any eventual compensation for your injuries from the responsible automobile insurance company.

Regardless of any such insurance payment, medical bills are included in what you are to be compensated for by the insurance company of the responsible driver.  The fact that you paid for insurance which covered your medical bills doesn’t relieve the wrongdoer of his responsibility to pay for the harms caused.  However, that payment for your medical bills, as part of a single eventual payment for all of your other losses, is not made until the eventual settlement or verdict at the conclusion of the case.

BODILY INJURY

The human body was not made to endure the forces involved in a motor vehicle accident.  As mentioned, be sure to get the medical care you need to receive an accurate diagnosis and the necessary treatment.  Substantiation of the physical injuries is necessary evidence to document the injury in a claim.

FULL, FAIR, AND ADEQUATE COMPENSATION

The reason we pay for car insurance company is to take care of losses resulting from a crash.  In this state, the compensation due from a negligent driver who is responsible for a crash is whatever is necessary to fully, fairly, and adequately compensate the injured party.  Punitive damages are prohibited in New Hampshire.  The injured party, therefore, is to be paid for the losses he or she has been caused, nothing more and nothing less.

If you are to be defended against such a claim, it is the responsibility of your automobile insurance company.  They will investigate the claim, retain and pay a lawyer to defend the claim, pay compensation due the injured party (within the limits of your liability coverage).  It is a condition of the insurance coverage that you cooperate with your insurance company.

For a claim on behalf of the injured party, it is essential to gather and preserve all the relevant evidence regarding the accident and its consequences.  The right to fair compensation is jeopardized without evidence to prove the facts.  You can be sure that a vigorous defense will be mounted to try to minimize or defeat the claim.  Evidence of the nature and extent of all the injured party’s losses must be developed, collected, and properly presented.  It is the party making the claim that has to produce the evidence to prove it.  The better the evidence, the stronger the case.  If the evidence is lacking, even a valid claim can fail.

The losses which the law provides are to be compensated include:  medical bills, incidental financial expenses, lost past and future wages, physical pain, emotional upset, loss of enjoyment of life.

Eventually, when the pertinent information and evidence regarding the crash are known, and when any resulting injuries have either stabilized or finally resolved, a claim can be valued.  The value of a claim cannot be ascertained until the facts which determine value are known.  Those facts include:  the nature of the injury; the extent, magnitude and duration of symptoms; the amount of medical bills; the extent and duration of the disruption of normal work and non-work activities; the extent of any disruption of income; the permanent consequences of the injury, etc.  What is “full and fair” compensation depends on the magnitude of the injuries and losses suffered, the strength of the evidence of legal fault of the other party, and “the marketplace,” i.e. the range of value which similar cases yield in local verdicts and settlements.

Settlement discussions are usually 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 necessity of trial.  However, it is frequently the right and ability to bring suit which compels 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 commenced in the appropriate court, if it has not already been.  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 driver with court papers 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, first by written questions, known as interrogatories, and later in an oral question and answer session, known as a deposition.

Eventually, if the matter cannot be resolved between the parties voluntarily, the evidence of the case will be presented to a jury for its unanimous decision on the apportionment of legal fault and the assessment of what they unanimously believe is fair compensation under the facts.  A jury consists of twelve randomly selected members of the public.

DO I NEED A LAWYER?

If injury is caused by a motor vehicle crash, New Hampshire law makes it the responsible party’s duty to provide fair, full and adequate compensation.  That includes more than just paying medical bills or lost wages. As anyone who has been injured can tell you, the bills are a small part of an injury.

Insurance companies are contracted and paid to provide fair compensation in the event of an accident. However, minimizing that compensation is in the business interest of a responsible insurance company.  Insurance representatives are trained and paid to serve that interest.

The protection of your legal rights will require commitment, experience and hard work.  At Winer and Bennett, LLP, you will receive the determination, expertise and resources you need to present a claim which commands the respect it deserves.

By:      Peter G. Webb

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Divorce

WHAT IS A DIVORCE?

Our laws give our courts the power to terminate a marriage on “fault” or “no-fault” grounds.  A fault divorce is based on proof that the marriage was caused to break down because of certain forms of misconduct, including: extreme cruelty, adultery, conduct endangering reason.  In a no-fault divorce, the divorce is granted on unspecified “irreconcilable differences” which have caused the “irremediable breakdown” of a marriage.

WHAT IS A LEGAL SEPARATION?

A legal separation is a court action by which spouses remain married, but in all other ways are divorced.  A legal separation decree determines all the usual divorce issues: support and custody of children, visitation, alimony, and the division of property and debts.

WHAT IS AN ANNULMENT?

An annulment is a proceeding which concludes that the parties were actually never married.  It is rarely used and can be granted only when the marriage was illegal from the beginning, such as when the marriage was prohibited by law or when either party was already married to someone else.

WHO CAN GET A NEW HAMPSHIRE DIVORCE?

A New Hampshire court can only grant a divorce in a marriage which has a connection with this jurisdiction.  If both spouses reside in-state, the court can grant a divorce action regardless of the length of residence.  That is also the case if the person filing for divorce lives in this state and the other spouse is served with the initial papers in-state.  If one spouse lives in the state and the other lives out of state and cannot be served in New Hampshire, the party starting the divorce has to have lived in New Hampshire for at least one year.

HOW IS A DIVORCE CASE BEGUN?

To begin a divorce proceeding, a document alleging the marriage and grounds for divorce is filed with the court.  The court then opens a file and returns the papers to the party initiating the action.  The documents are then provided to the other party.  A person served with divorce papers files an “Appearance” with the court on or before the date noted on the initial divorce papers.  An “Appearance” is a document filed with the court to indicate that the spouse served chooses to participate in the proceeding, either through an attorney or by representing him or herself.  Filing the “Appearance” form assures that you will receive notice of all future hearing dates and receipt of all future court documents.  The party served the papers may file an “Answer”.  Parties also have the option of filing a joint petition for divorce.

WHAT IS AN UNCONTESTED DIVORCE?

A divorce is uncontested when the parties voluntarily agree on all the terms for the divorce.  The issues addressed by the terms of such an agreement customarily include:  parenting responsibility for the children, child support payments, alimony, division of property, and division of debts.  In an uncontested divorce, the parties must submit their agreement in proper written form to the court for its review and approval.  Each party must also file other documents including a financial affidavit, disclosing under oath all income, assets, and debts.  If approved, the terms of the agreement become a court order, and a full hearing is not necessary.  The divorce is effective upon court approval.

WHAT IS THE FIRST STEP IN THE DIVORCE PROCESS?

In our Family Court, the first step is an informational session called a “First Appearance.”  At that session, the Court explains the divorce process to the parties.  The attendance of attorneys is not required.

At the First Appearance, either spouse can request that the court schedule a hearing in order to issue preliminary orders which the parties must obey, pending the final divorce decree.  Such “temporary orders” are decided by the court at a temporary hearing.  The issues which may be decided at a temporary hearing include: interim parental responsibility for the children; support payments for children and/or a spouse; continuation of life and medical insurance coverage; temporary use and possession of the family home, furnishings, automobile and other property; restraining orders regarding transferring or disposing of property; restraining orders preventing one spouse from interfering with the peace or liberty of the other.  The temporary orders are in force until changed by agreement approved by the court, or until a further court order.

The parties must submit their income and expense information, under oath, for a temporary hearing.  That information is used by the court to decide child support, alimony, and the general allocation of temporary financial responsibility between the parties.  Actual testimony is not offered at a temporary hearing.  Instead, each party makes a presentation to the court.  The temporary orders are then decided by the court.  Alternatively, temporary orders can also be established by written agreement, signed by the parties, and approved by the court.  In the event of such a temporary agreement, a hearing is not necessary.

HOW IS THE FINAL DIVORCE DECREE DECIDED?

If the parties voluntarily enter into written agreement setting out the final terms of the divorce, a formal final hearing is not necessary.  However, if the parties cannot agree, the contested issues will be left for the court to decide after hearing the evidence at a final hearing.

The final hearing is conducted in the courtroom before a Marital Master who hears and decides the case.  Divorce matters are not heard by a jury.  At the final hearing each party offers evidence for his or her case, such as testimony of the parties, testimony of witnesses, testimony of accountants or appraisers, as well as non-testimonial evidence such as financial records, business records, etc.  All witnesses are subject to examination and cross-examination by both sides.  Each party is again required to submit, under oath, an up-to-date financial affidavit. Also, each party makes its written recommendation to the court as to what the court should order. Each party has the opportunity to present the law in support of the outcome it considers proper.

After the hearing, the court will let the parties know its decision by mail.  There is no waiting period for the divorce to become effective.  The appeal of any final divorce decree can only be made to the New Hampshire Supreme Court.

PARENTAL RESPONSIBILITY

The law requires that divorced parents make every reasonable effort to co-parent their children harmoniously.

Parental responsibility takes two forms in a divorce:  decision-making and residential.  The first involves the right to participate in parental decisions.  The second involves the physical presence of the child.  Joint decision making responsibility is presumed by the court to be in the child’s best interests, unless proven otherwise.  Residential responsibility involves scheduling the child’s time with each parent.  Unless the parties can agree, the parental responsibility of a child is determined by the court, after consideration of the evidence, based on the child’s best interests.

When there is a disagreement on issues affecting a child, the court may appoint a guardian ad litem to represent the interests of the child.  This person speaks to the parties and others having relevant information, and submits a report making a recommendation on parental responsibilities to assist the court in determining what is in the child’s best interests.  The court may consider the child’s preferences, if the court concludes that the child is capable of mature judgment in that regard.

After the final residential responsibility determination, unless the parties mutually agree to a change of custody, the court will not change physical custody unless the evidence establishes a strong possibility that the child will be harmed if the present living arrangements were to continue.

HOW IS CHILD SUPPORT DETERMINED?

Child support is calculated according to a formula set out by law, called the Child Support Guidelines.  A non-custodial parent’s child support obligation will depend upon the parties’ gross income and the number of children.  In exceptional circumstances the court may permit variation from the Child Support Guidelines.  Otherwise, the child support amount must conform to the Child Support Guidelines.

In the event of a future substantial change in the financial circumstances of the parties, a child support obligation can be modified.  Additionally, after three years, a child support order can be brought forward for review.  In both cases, unless there is a written agreement on a new support amount to be paid, a modification requires filing a motion with the court.

It is preferred but not required that child support be collected through an automatic deduction from the obligated spouse’s wages. Child support can also be paid, with or without wage assignment, through the Child Support Enforcement Unit of the New Hampshire Division of Human Services.  Delinquent child support can result in the seizure of an income tax refund or the loss of a motor vehicle license in New Hampshire.  A party’s failure to pay child support is brought to the court’s attention by the filing of a Motion for Contempt.

WHEN AND HOW IS ALIMONY ORDERED?

Alimony is an award of money for the support of an ex-spouse. Generally speaking, the court will order that payment of alimony if the relative income situations of the spouses after the divorce would otherwise be unfair.  Alimony may be awarded as a temporary or final order to either spouse for a limited time or permanently.  Alimony awards are based on the parties’ relative needs and abilities to pay.  In deciding whether to award alimony, the court considers the general circumstances including:  length of the marriage, age, health, general finances, each party’s earning capacity, each party’s contributions to the marriage, the opportunity of each spouse to acquire property in the future, among other considerations.  The court may take fault grounds into consideration in determining alimony.  An alimony award may be established or modified after the divorce if the court decides that it is justified because of an unforeseen substantial change in the financial circumstances of the parties.

HOW IS PROPERTY DIVIDED?

All property (and debts) in which either spouse has any interest is considered the property of the marriage, and must be distributed in the divorce action.  For this purpose, the court will require that each party make a complete and accurate financial disclosure under oath.  The marital property to be divided includes real estate, personal property, retirement interests, bank accounts, savings plans, stock options, vested inheritances.  The distribution of the marital property can be determined by agreement between the parties, or, if the parties cannot agree, by court order after a hearing.

The marital property is to be divided fairly. The law presumes that an equal division of the marital property between the parties is a fair division, although the court may conclude otherwise under the particular facts of the case. To determine what constitutes a fair division of the marital property, the court may consider a wide range of factors, including:  each spouse’s contribution as homemaker or wage-earner; the length of the marriage; the age, health, skills and employability of each party; each party’s opportunity to acquire property in the future; the custodial parent’s need to remain in the home or care for children; whether property was obtained by gift or inheritance; expected pension or retirement rights; tax consequences; contributions by each spouse to the other spouse’s education or career.  The court may also take fault grounds into consideration in deciding a fair property distribution.

A property settlement is final and cannot be changed because of a subsequent change in financial or other circumstances.  Only a property settlement that resulted from fraud, misrepresentation or a mutual mistake will be considered for modification by the court.

CAN BOTH PARTIES HAVE THE SAME LAWYER?

A lawyer can only represent one party in a divorce proceeding.  It would be a conflict of interest for a lawyer to represent the opposing interests of both parties in the same proceeding.

By:  Peter G. Webb

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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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