Massachusetts Personal Injury Blog

New "Massachusetts Lawyers Weekly" Publication for Non-Lawyers

Massachusetts Lawyers Weekly, a weekly publication for lawyers on news and developments in Massachusetts law, has recently launched Exhibit A.  Exhibit A is a monthly newsletter written by lawyers and intended for non-lawyers.  It is written in a way which makes the law a little less confusing and easier to understand.  It is a FREE monthly publication you can pick up at most MBTA stations.  The newsletter covers many different legal topics which you may find useful if you have specific legal questions, or, if you are just interested in the law generally.

Confidentiality and Malpractice Settlements in Massachusetts

Massachusetts attorney Eric J. Parker has written a great article concerning the role confidentiality agreements play in Massachusetts medical malpractice settlements.  Here is the article:

Negotiated settlements of claims arising from medical negligence frequently involve the issue of confidentiality between the parties. In cases where a defendant physician, facility or other health care provider demands a confidentiality provision as part of a settlement agreement, plaintiff’s medical malpractice lawyer must consider several factors prior to agreeing to include confidentiality as a material term of a release and settlement agreement.

The first and most obvious consideration is the client’s intent and objective in bringing the action in the first place. A client that is dealing with their own, or a family member’s loss, as a result of a medical error experiences a wide array of emotions in deciding whether to pursue a claim. A frequently stated motivating factor is the desire to “make sure this doesn’t happen to someone else.” As noble a cause as this may seem, it does not square with the remedies available in most jurisdictions, or the purpose of the civil trial system. The civil litigant is entitled to fair compensation for their injuries, and that remedy is the “justice” available.

Massachusetts Personal Injury Cases and Contingency Fee Agreements

Nearly all Massachusetts personal injury lawyers take cases on a contingency fee basis.  What that means is that your attorney will take 33 1/3% (or possibly more if your case goes into suit) of any settlement or judgment amount as his/her legal fee at the conclusion of the case.  If your attorney advances any costs in prosecuting your claim, it is you that is ultimately responsible for any such costs. 

With contingency fee cases, your attorney is required by the Massachusetts Rules of Professional Conduct to provide you with a copy of the signed, contingency fee agreement.  This is the agreement that formalizes the attorney/client relationship.  If your attorney does not provide you with a copy of the fee agreement, ask him/her for a copy of same.

Can My Attorney Settle My Massachusetts Personal Injury Case Without My Consent?

No.  It is you, the client who decides whether or not to settle your case.  Your attorney of course is obligated to counsel you as to whether or not a particular settlement is worth taking.  Chances are your attorney wants to get you the best settlement possible.  Therefore, you should listen and weigh your attorney's advice on whether to settle the case.  Your attorney is ethically obligated to inform you of all reasonable settlement offers made on your case. 

Deciding whether to accept a settlement or go to trial is a tough decision.  Listen to your attorney's advice, go with your gut, and make a decision that you feel is right.

Massachusetts Legal Malpractice Trials and Expert Testimony

Attorneys who negligently perform legal services to their clients run the risk of legal malpractice claims.  If you believe your attorney has committed legal malpractice, you should consult with a Massachusetts legal malpractice attorney immediately.  But it must be remembered that in order to prevail at trial (if your case does not settle there will be a trial), you will need to have an expert  testify in court that your attorney somehow mishandled your case, that you suffered damages as a result of that mishandling, and, that there exists a causal connection between the mishandling and the damages you suffered. 

Massachusetts Personal Injury Lawyers and Legal Malpractice Insurance

Many Massachusetts personal injury attorneys have legal malpractice insurance.  At the same time, there are many Massachusetts personal injury attorneys that do not.  It is important for you to know the answer to this question.   Do not be afraid to ask your current attorney, or your prospective attorney this very important question.  He/she will understand your need to know this information.

Direct Solicitations To Injury Victims In Massachusetts

Lawyers are prohibited from directly soliciting injury victims in Massachusetts.  I am sick and tired of hearing of lawyers who send letters or make calls to injury victims.  It is these lawyers who are the "ambulance chasers" and give personal injury lawyers a bad reputation.  If you have been directly solicited by a personal injury lawyer do not hire that lawyer!  After all, how could you possibly trust such a lawyer? 

More Information About Legal Malpractice

I found the following over at the DC Metro Area Personal Injury Law Blog which provides a crisp summary regarding legal malpractice claims:

"Legal malpractice cases are ofen expensive to litigate and difficult to win.  Three conditions must exist in order to prove legal malpractice:

•   An attorney-client relationship existed;
•   The attorney breached a duty he or she owed to the client; and
•   The attorney's wrongdoing caused the client harm.

The most common reasons for a legal malpractice suit are:

• The lawyer didn't know the substantive law well enough;
•   The lawyer failed to get a client's consent  or to inform the client;
•   The lawyer failed to calendar events;
•   Not knowing or observing a deadline; and
•   Insufficient discovery and/or investigation."

What is Legal Malpractice in Massachusetts?

Lawyers make mistakes.  When lawyers make mistakes and their clients are somehow harmed by the mistake, then there may be a remedy for the aggrieved client against the lawyer.  Here is a good explanation of what legal malpractice is, provided by the website of Massachusetts legal malpractice attorney Charles P. Kazarian:

"Legal malpractice is a serious matter involving the breach of a duty owed by a lawyer to a client resulting in demonstrable damage to the client. Lawyers are obliged to conduct themselves with the skill, care and diligence of an ordinary, qualified practitioner in the practice area of a client's case. In other words, if it causes you harm, below-average performance by your lawyer is generally considered malpractice.

"The mere fact that you lost your case or lost an asset / legal right is not by itself evidence of malpractice. You still have to show that your lawyer violated the duty of care described above and that the violation resulted in a loss. An ordinary, average performance by your lawyer is also not malpractice. The fact that an excellent lawyer would have done a better job does not necessarily mean that your lawyer's ordinary performance is malpractice, even if you lost."

A common legal malpractice claim involves a blown statute of limitations case against an attorney.  In this situation, the former client is suing his/her attorney f0r failing to file the client's personal injury lawsuit within the required statutory time. 

Attorney Conflicts And Massachusetts Auto Accidents

Oftentimes personal injury attorneys are presented with conflicts of interest.  Let us take the example of an auto accident to illustrate this point.  Suppose for example that an attorney is presented with the situation where both the driver and passenger of the same car are involved in a Massachusetts auto accident, and they both seek to have the same attorney represent them. The attorney in this situation may have a conflict. 

If it turns out that fault for the accident lies with the driver, and not the driver of the other vehicle, the attorney would have to sue the driver (his client) in order to effectively represent the passenger (his other client).  These types of conflicts recur many times when both a passenger and driver involved in a Massachusetts auto accident seek to have the same lawyer represent them both.