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* You have a limited amount of time to bring a claim so you must act QUICKLY to protect your rights.
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Not to worry. One of the hallmarks of personal injury law is that the injury victim does not get billed an hourly rate. Rather, the legal fee is a percentage of the gross amount recovered for the client.
Nearly all Massachusetts personal injury lawyers - as well as personal injury lawyers in other states - take slip and fall 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.
One of the first questions I ask a potential personal injury client is whether he has made any claims in the past. Whether it be a motor vehicle accident, slip and fall or some other claim, it is important for me to know this information. The reason is that the claims adjuster and the defense attorney (if the claim goes into suit) has access to a claims index. If you have made claims in the past, they will appear in the claims index and will come up on a search.
Therefore, before meeting with your attorney for the first time, think back to any claims you have made in the past and write them down on a piece of paper. Write down the approximate date of the accident, the type of accident it was, and any injuries you suffered as a result.
It is better that your attorney learn of these accidents at the beginning of the case, rather than during your deposition when the defense attorney will be sure to bring them up to weaken your case.
I was inspired to write this post after reading a similar post over at the Maryland Injury Lawyer Blog on this very topic.
A statute of limitations is the period of time set through law in which you are allowed to sue someone in court. Generally, in Massachusetts, personal injury claims such as auto accidents, slip and falls, and dog bites, have, respectively, a three-year statute of limitations.
But be very clear that not all accident/personal injury claims have a three-year statute of limitations. Some have shorter or longer periods depending on the facts and the applicable law. If you have been hurt in an accident, I suggest you call an attorney immediately in order to protect your legal rights.
Please contact me with any questions of comments you may have in connection with Massachusetts personal injury law.
ere is an article from Massachusetts Lawyers Weekly about how the vast majority of personal injury plaintiffs are losing at trial in Massachusetts. Keep in mind the old adage, "the good cases settle, and the bad cases go to trial" while you read the article. Here is the article:
Published: June 14, 2010
Eight years later, James W. Gilden remembers the day he fell down the steps at the Dedham Probate & Family Court like it was yesterday.
The 70-year-old divorce lawyer from Sharon, a regular at the courthouse for more than four decades, lost his balance on the slippery marble floor and tumbled down several flights of stairs before slamming onto the landing below.
Gilden would go on to file a negligence suit in Norfolk Superior Court against the Trial Court and its chief justice for administration and management, Robert A. Mulligan.
"The steps were concave and slanted a little bit forward," Gilden recently recalled of the 2002 accident. "At a minimum, they should've put up some kind of warning. After that happened to me, they put no-slip strips on the stairs, but the trial judge refused to allow us to even bring that up in front of the jury."
Gilden said that ruling by Judge Thomas A. Connors dashed any chance he had of holding the court accountable for the injuries to his knee, which required arthroscopic surgery and months of painful rehabilitation.
But practitioners claim there was something else at play when the jury returned a defense verdict in the case last April: a deep-seated anti-plaintiffs' bias in Massachusetts.
In fact, a review by Lawyers Weekly of the civil verdicts rendered in Superior Court in 2009 shows that the deck is heavily stacked against tort plaintiffs, particularly those who go to trial in Norfolk County and other suburban communities. And the numbers are even more dismal for plaintiffs in medical-malpractice cases (see sidebar on page 27).
According to the statistics, only five of the 35 personal injury verdicts returned in Norfolk County in 2009 favored plaintiffs. The county's 14 percent success rate was 22 percentage points lower than Essex County, which had the highest rate of plaintiffs' verdicts, and 12 points behind the statewide average of 26 percent.
"A plaintiff's verdict is so rare here that when we have one, it's something people really take note of," Norfolk Superior Court Regional Administrative Justice Janet L. Sanders said. "Norfolk has traditionally been pro-defense, but there seems to be a more pronounced trend in the last few years, particularly the last two, where the numbers of plaintiffs' verdicts have dropped precipitously."
Superior Court Judge Patrick F. Brady, who regularly sits in Norfolk County, concurs with Sanders.
"This is certainly not the golden age of torts," he said.
‘A hard battle'
Lawyers Weekly collected the numbers for this story by running every Superior Court case tried in 2009 through the state's Trial Court Information Center database. Of those 700-plus cases, any verdict for the plaintiff, regardless of the amount of money awarded, was considered a plaintiff's win.
The only region in Massachusetts with a lower success rate than Norfolk County was the Cape and Islands, which saw eight of its nine tort trials decided in favor of defendants.
Brady, who specialized in products liability defense at the Boston law firm of Nutter, McClennen & Fish prior to his appointment to the bench in 1989, keeps a log of every negligence case tried in his courtroom.
Unlike the method used by Lawyers Weekly, however, the judge defines a plaintiff's victory as a verdict in which the jury awards a dollar figure that exceeds the plaintiff's pre-trial settlement offer. (Such data is not available on the state's database.)
"To me, beating the offer is the true measure of whether someone wins or loses," Brady said. "Those numbers tell you that it's a hard battle for a plaintiff's lawyer in any case where the defendant presents some sort of plausible defense. The plaintiffs will hardly ever win by my definition of a win."
Of the 151 negligence trials Brady has presided over since 1993 when he first started keeping track, only 16 have resulted in plaintiffs' verdicts, he said. In Norfolk County, only seven of 69 ended in favor of plaintiffs. Of the 52 trials he has heard in Plymouth County, 49 - or 92 percent - were decided for the defense.
Because the likelihood of plaintiffs attaining success is so remote, Brady said, he has seen far fewer personal injury cases - especially those involving car accidents and slip and falls - go to trial over the past three or four years.
Since Norfolk County started tracking its results in 2006, the few cases decided for plaintiffs have generally resulted in miniscule monetary awards, Sanders said.
"Over a four-year period, we're talking about only a handful of cases that have been big verdicts, in the hundreds of thousands," she said. "The plaintiffs' bar has admitted to us that they only come to Norfolk if they have to for venue reasons. They're not avoiding us because of our court; they're avoiding us because of the low verdicts."
When a lawyer has the option of filing outside of Norfolk County, the decision is an easy one to make, according to Robert M. Higgins of Lubin & Meyer in Boston.
In fact, he said, any attorney who would willingly try a case in Dedham when alternative venue options exist - knowing how bleak the numbers are - would be committing malpractice.
"Generally, the belief is that the majority of big verdicts in Massachusetts come out of the larger cities," Higgins said. "The further you get into suburbs - the Dedhams, the Barnstables, the Plymouths - the perception is that you'll get a more conservative, pro-defendant jury pool than you will in places like Worcester, Springfield or Boston."
‘Same wasteland everywhere'
J. Michael Conley, who represented Gilden in his Superior Court case in Dedham, said while the news out of Norfolk County is dismal for plaintiffs' lawyers, it's not a whole lot better in other parts of the state.
"What we're seeing in Norfolk, which is an affluent suburban community, is a subset of what we're seeing statewide," he said. "It's the same wasteland everywhere you go."
Like most of the judges and attorneys interviewed by Lawyers Weekly, Conley struggled to explain the precise reasons for the bleak results. The Braintree lawyer said one factor is the pre-conceived beliefs that members of the venire bring to trial.
"There is a lot of sociology behind it, but one thing that is going on out there is that there is a huge amount of anti-plaintiff sentiment in the populous and therefore in the jury pool," he said. "I don't think you'll find plaintiffs' lawyers in love with jurors anywhere in Massachusetts these days."
Because Massachusetts is one of the few states in the country that does not allow a meaningful voir dire process, lawyers have difficulty weeding out troublesome jurors during empanelment, Conley said, calling it a "good day" if he can get a judge to ask potential jurors whether they believe they would be adversely affected by a plaintiff's verdict.
Judge Brady, who meets with jurors at the conclusion of each of his trials, said juries tend to be hard on personal injury plaintiffs, "figuring that they've got their back problems, too, and that this is another one of those McDonald's suits about hot coffee."
In motor vehicle cases, meanwhile, many jurors mistakenly believe that insurance premiums will be negatively impacted by a plaintiff's' verdict, Wilbraham lawyer Francis W. Bloom said. That perception has prompted Bloom to steer clear of soft-tissue cases, which he gladly tried a few years ago.
"You have an uphill battle before you even stand up because there is no way a juror with that kind of bias can possibly sit indifferent on your trial," he said. "There is an attitude among jurors, particularly with the economy being so tough, that if they have to struggle, why should they be generous with the plaintiff?"
Defense verdicts rule the day in med-mal trials
While it was no easy task for personal injury plaintiffs in Massachusetts to prevail at trial in 2009, it was nearly impossible for them to win medical-malpractice claims.
According to a Lawyers Weekly review of every Superior Court case tried last year, nearly 90 percent of the med-mal disputes that went to trial were decided in favor of doctors.
In Norfolk County, all 12 of the court's medical-malpractice trials ended with defense verdicts.
"I was appointed to the bench in 2001, and I have never presided over a medical-malpractice trial that resulted in a plaintiff's verdict," said Superior Court Judge Janet L. Sanders, who serves as Norfolk County's regional administrative justice.
Likewise, Superior Court Judge Patrick F. Brady, who has presided over 28 med-mal trials since 1993, said he has had only one trial result in a plaintiff's verdict that exceeded a defendant's settlement offer.
Jeffrey N. Catalano of Boston's Todd & Weld, a med-mal lawyer who secured one of only 11 plaintiffs' victories in the state in 2009, said the prospects are so poor that several attorneys have stopped handling them altogether.
"There has been a lot of public-relations money poured into misrepresentations about lawsuit abuse, health care costs going up, and doctors leaving the state," he said. "Unfortunately, a lot of it has been effective. There is real juror hostility toward patients and plaintiffs who choose to pursue these cases."
- David E. Frank
If you have been injured in a slip and fall accident at a retail store, the store does not have a legal duty to provide you with a copy of the video. The only real way to obtain the video of your fall is by suing the store for your injuries. At that time, during discovery, the store is required to provide you, or your attorney, with a copy of the video. Regardless of whether or not the case is in suit, my office always sends a 'spoilation letter' advising the store to preserve the video, as it is evidence that can be introduced at trial. The failure of a store to preserve the video can result in serious sanctions and penalties by the court.
Whether you are a plaintiff or a defendant in a Massachusetts personal injury lawsuit, there is a good chance you will be deposed. The American Bar Association provides 10 tips for deponents which I feel can help you if you are facing an impending deposition. Here they are:
Negligence is one of three prongs of tort law (the two others being strict liability and intentional wrongs, but more on these in future posts). Negligence is defined by Black's Law Dictionary (Second Ed.) as "The failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation; any conduct that falls below the legal standard established to protect others against unreasonable risk of harm." But what does that really mean?
The word refers to conduct that is considered objectively unreasonable. For example, if you slipped and fell on ice in front of a store, and the store-owner had notice that the gutter above his store was leaking water onto the sidewalk and that this water would freeze in the winter, then that store-owner may have acted unreasonably, or negligently, in failing to correct the problem. It was foreseeable - on the part of the store-owner - that someone would slip and fall on the ice (or maybe he or she even knew of slips and falls in the past and did nothing to correct it).
Or, let's take the example of an automobile accident. If a driver is driving erratically and ends up injuring someone, that driver may have been operating his automobile negligently, because he or she could have reasonably foreseen that someone would be injured as a result of his or her unreasonable conduct.
My personal injury practice revolves around the legal principle of negligence. My job description is simple: I represent those that have been injured by the negligence of others. My job is to prove or establish that the person or entity whose conduct injured my client(s) was objectively unreasonable, or negligent.
Please contact me with any personal injury questions or concerns you may have.