Lawyers.com Blog

We Are Marshall

nospam@example.com (Robert I. Feinberg) — Tue, 17 Nov 2009 14:47:54 -0500

Personal injury law in most circumstances is the law determined by a state’s courts and its legislature. A first year torts’ textbook will have very few, if any, United States Supreme Court decisions. Rather, the decisions it includes will be those of the state appellate courts. In the case of Massachusetts, it is the decisions of the Supreme Judicial Court and the Massachusetts Appeals Court. As a result, the most important Marshall is Chief Justice Margaret Marshall, the Chief Justice of the Massachusetts Supreme Judicial Court. And yet, the Marshall most lay people would think of as a judge is the esteemed Thurgood Marshall, the nation’s first African-American Justice of the United States Supreme Court and, prior to that, Chief Counsel for the NAACP. Another legal titan named Marshall was Chief Justice of the United States Supreme Court, John Marshall. Chief Justice Marshall introduced the notion of judicial review of legislative acts. The tension between the branches of government was evident when President Andrew Jackson allegedly said of John Marshall, “[he] has made his decision now let him enforce it.”

All three have a role in shaping our legal culture. When it comes to determining what the law is in a personal injury action, look to the Massachusetts Marshall.

Feinberg & Alban, P.C.
Boston Injury Attorneys
1051 Beacon Street, Brookline, MA

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Case Evaluation

nospam@example.com (Robert I. Feinberg) — Fri, 30 Oct 2009 14:16:33 -0400

“What is my case worth?” Understandably, this is perhaps the most commonly asked question from clients. Speaking at a seminar several years ago, one venerated plaintiff’s lawyer, a practitioner for well over 50 years, remarked that he always answers, “The most I can get for you.” [Emphasis added.] That remark is memorable if only because it underscores how imprecise it is to price a case. (Others may question why he used “I” because it may overstate the role of the plaintiff’s lawyer which is, admittedly, important but not solely determinative.) A myriad of factors go into the calculation of a case’s value. We all know the two broad categories: liability and damages. It’s all the rest that makes the liability and/or damages better or worse: the plaintiff’s profile and ability to evoke sympathy, the existence of witnesses, the credibility of the parties/ witnesses, a good earnings history, good reports from respected treating physicians, residual impairment, amount of insurance coverage, etc.

These factors help the practitioner in making an informed assessment of a case’s value. I suppose a lawyer has a “gut” reaction to the value of a case. That is understandable but the “gut” reaction is only an initial hypothesis which should be subject to the many criteria outlined in the above.

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What This Case Needs Is A Good Hypo

nospam@example.com (Robert I. Feinberg) — Fri, 16 Oct 2009 15:10:57 -0400

For some time now, Massachusetts courts have not required that an expert render an opinion after being asked a hypothetical question. The hypothetical question is still available to the attorney who is conducting a direct examination of his/her expert. Practitioners should not lightly dismiss the hypothetical question; it is a wonderful opportunity to summarize the case. When it is properly formulated, the hypothetical question will include all the essential elements of the case. Using language along the lines of, “I would ask you to assume… and assuming…assuming further,” the practitioner has skillfully broken the case down into a series of clauses or foundational elements. Consequently, if there is an objection, it can deftly be handled by eliminating or rephrasing the one section/element to which there has been an objection. But, the most powerful tool of the hypothetical remains the attorney’s opportunity to summarize the case for the trier of fact. It needn’t be used but its potential value is ignored at the practitioner’s peril.

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A Navigation System For Auto Insurance Coverage

nospam@example.com (Robert I. Feinberg) — Sat, 26 Sep 2009 17:00:03 -0400

Uninsured and underinsured motorist coverage were big innovations in the 1970s. They can mean the difference between receiving full compensation or very limited compensation from an auto accident. When the Massachusetts State Legislature changed the procedure for accessing those coverages, many practitioners got confused. The following is a road map for those who need to know which policies come into play.

Road Map For Determining UM Coverage for Policies

1. If you are occupying your auto (i.e. you are the named insured), UM is only from the policy covering such auto.
2. If you are occupying another’s auto, UM is from your auto (i.e. the auto where you are named insured) which has the highest limits. If the limits are the same on two or more vehicles, then pro rata sharing.
3. If you are occupying an auto and are not a named insured on any auto, you receive the highest limits of coverage on a policy of a resident relative. If the limits are the same on two or more vehicles, then pro rata sharing.
4. If you are occupying an auto and are not a named insured on any auto and not insured on a resident relative’s policy, you must receive UM from the vehicle in which you are occupying.

NOTE: These answers obtain regardless of whether you are a driver or passenger.

The practitioner has to be especially careful in those situations where the client is travelling in a vehicle he/she does not own. In that circumstance, personal injury protection benefits come from the occupied vehicle but UM will come from the client’s own vehicle.

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Do Not Necessarily Fear a Damaging Statement. If in a Writing- it is still Hearsay

nospam@example.com (Robert I. Feinberg) — Fri, 11 Sep 2009 16:09:21 -0400

Sometimes in personal injury law things are not as they appear. This can cut in favor of the party suing or against the party suing. It depends upon the knowledge and aggressiveness of the lawyer. An example comes from statements contained in a police report.

At first blush, it may seem very troubling that witness statements quoted in a police report regarding how an accident happened (not necessarily a car accident) are hostile to your client. Fear not, unless the opposing side knew enough to call those eyewitnesses to testify at the trial, an objecting attorney can keep those statements from the jury’s ears. I have successfully objected to the attempted introduction of the contents of a police report, even if the police officer himself/herself is testifying. It is very well-settled law that such statements are hearsay, and, unless within some independent exception to the hearsay rule, are not admissible. Of course, it is a different matter if the declarants who are listed in the police report testify. The hope is that if they have damaging testimony, the defense attorney will erroneously assume that that testimony can come in through the police officer. The fact is it cannot. See Kelly v. O’Neill 1 Mass. App. Ct. 313 (1973) and numerous cases drawing upon common law evidentiary principles.

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The Signs of Head/Brain Injury...Father Knows Best (and Mother too)

nospam@example.com (Robert I. Feinberg) — Fri, 04 Sep 2009 15:08:23 -0400

In a previous blog, I addressed traumatic brain injury and objective tests which depict them. We have come to hear of CT scans, CTA’s and MRI’s and, most recently, PET and SPECT scans. A recent study undertaken by Boston University Medical School also offers objective evidence, that of a ghoulish sort, from post-mortem brain exams. The researchers have found signs of chronic traumatic encephalopathy (CTE), even appearing on individuals as young as 18. These individuals, who were football players, had brains that were showing the effects of concussions.

To present these cases carefully, we need clinical evidence. That comes from clinicians, neurologists, primary care physicians, psychologists, social workers, etc. But a goldmine of information comes from co-workers, teachers, and particularly family members. Who can better describe the emotional and behavioral changes that most of us who practice in this area are forever looking for? When a family member testifies that the plaintiff has turned sullen, withdrawn, disengaged and forgetful we know that this difficult picture can be presented in a comprehensive fashion.

Such testimony from a person close to the plaintiff will often provide real vignettes. What about the allegation of bias? I respond by noting that if a picture is worth a thousand words, a vignette from a caring family member is as valuable a verbal picture as can be obtained. Bias be damned if the testimony is believable and probative. Yes, have the doctor, the neuroradiologist, testify to what the brain film shows; yes, have the primary care doctor, the clinician, describe the person’s injury; and yes have the neuropsychologist describe the testing. But don’t forget the mother, father, and the other family members. They just may know best about the effects of the injury.

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With Head Injuries It's Not About X-Rays

nospam@example.com (Robert I. Feinberg) — Wed, 24 Jun 2009 11:21:23 -0400

Those of us who deal with personal injury cases have become familiar with the diagnostic tools available to the medical profession. Two classics are the history the doctor obtains from the patient and the clinical exam. Obviously, however, every bit is important is the diagnostic testing in the formulation of a diagnosis. X-rays have limited probative value in this area as they will show skull fractures but not much else to aid the assessment.

The tests that we most often see in the case of a brain injury are the CT scans, MRI’s, CT angiography, SPECT and PET scans (more controversial). When those tests are abnormal, it is obviously easier to prove a brain injury. In fact, those tests in conjunction with clinical assessments, family observations, and neuro psychological testing complete the picture.

It is hard for a defendant to disagree with the findings of a subdural hematoma or a subarachnoid hemorrhage. There is something known as a Glasgow Coma Scale to rate those injuries. In those instances, it is conceded that there was a brain injury in the first place. The battle line is drawn over the long-term prognosis. Because victims of these brain injuries often appear normal, it is incumbent upon the lawyer to develop the case in a thorough fashion, really leaving no stone unturned. In that way, this subtle but significant injury will receive its proper due.

Feinberg & Alban, P.C.
Boston Head and Brain Injury Lawyers
141 Tremont Street Boston, MA 02111

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Not Only May Federal Court Be Ill- Advised, It May Lack Personal Jurisdiction

nospam@example.com (Robert I. Feinberg) — Wed, 03 Jun 2009 10:34:17 -0400

Article 3 of the United States Constitution allows the Federal Courts to have jurisdiction in controversies between citizens of states. Congress grants Federal District Courts diversity jurisdiction over civil actions in which the controversy exceeds $75,000. Some lawyers have erroneously assumed that anytime there is a diversity action (i.e. no plaintiff has the same citizenship as any defendant) with an amount in controversy over $75,000 that they can sue in Federal Court. This is not exactly the case.

The defendant must have sufficient contacts with the state in which the Federal Court sits. Federal District Courts exercise personal jurisdiction to the same extent as the courts in the state in which they sit. Therefore, the defendant must have minimum contacts with the forum state whether the law suit is brought in Federal or State Court. In other words, there is no such thing as universal jurisdiction in the Federal Courts. If the defendant cannot be sued in the Massachusetts State Court because of a lack of personal jurisdiction, the defendant cannot be sued in the Federal Court in Massachusetts.

Subject matter jurisdiction, personal jurisdiction, and venue are tricky matters but if the case is dismissed, it is usually without prejudice. Therefore, if the action is brought in the wrong court, the plaintiff must hope that the Statute of Limitations has not run. Even better, the case should be brought in the right court in the first place.

Feinberg & Alban, P.C.
Boston Accident Attorneys
141 Tremont Street Boston, MA 02111

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Bankruptcy As An Irrelevancy

nospam@example.com (Robert I. Feinberg) — Wed, 06 May 2009 09:49:46 -0400

With these economic times resulting in many personal and corporate bankruptcies, an obvious question arises: “What happens to the personal injury claimant who is suing a bankrupt defendant?” If the defendant has liability insurance, you can rest easily. Of course, that assumes that the liability insurance is enough to pay all claimants. But in the usual circumstance, liability insurance will be enough.

When Plaintiff A sues Defendant B the caption of the case reads “A v. B.” What almost always occurs is that B is indemnified by a liability insurance policy. That insurer controls the litigation and selects the defense counsel. A bankruptcy filing of Defendant B will “stay” all proceedings. However, a motion to the Bankruptcy Court where the bankruptcy has been filed will relieve the “stay” to the extent of the liability insurance coverage. I would call this a pro forma matter.

The consequence of the above is that a bankruptcy filing in most circumstances has no practical effect on the personal injury plaintiff. The claim, once the stay is removed, continues to be defended by the insurance counsel and ultimately paid by the insurance company.

Robert I. Feinberg
Injury Lawyer Boston
141 Tremont Street Boston, MA 02111

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Personal Injury Awards Are Tax-Free

nospam@example.com (Robert I. Feinberg) — Tue, 28 Apr 2009 09:43:01 -0400

Clients are forever amazed that the Internal Revenue Code exempts from the definition of income personal injury awards. Believe it or not, thus has ever been the case. We are not accustomed to benefits such as this flowing to our personal injury clients.

This great advantage somehow eludes many experienced lawyers. I am often called by other attorneys who ask how “A Release Of All Claims” should read. When I get to their point, I learn that they are concerned that some amount may be attributed to loss of earnings and thereby, in this erroneous view, subject their clients to tax. As George H.W. Bush once said, “Read my lips, no new taxes.” Well, there are no taxes to be paid on personal injury awards regardless of whether some amount relates to a loss of earning capacity.

To be sure, in some tort cases Congress has altered this, such as with punitive damages and non-physical injuries i.e. where there has been gender and age discrimination. However, in the vast majority of tort cases, the exemption from income remains. So may it ever be so.

Feinberg & Alban, P.C.
Boston Massachusetts Personal Injury Lawyers
141 Tremont Street Boston, MA 02111
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To Structure Or Not, That Is The Question

nospam@example.com (Robert I. Feinberg) — Thu, 23 Apr 2009 08:25:11 -0400

A frequent issue that arises when personal injury cases are about to settle is whether the plaintiff should take the payment in the form of a structured settlement.

Structured settlements are payouts over time rather than payment in one lump sum. As usual, the best course of action depends on the specific situation. In this context it depends upon the parties who are involved and their needs. Nevertheless, there are a few guiding principles which must be borne in mind.

Tax implications are always crucial. Bear in mind that the Internal Revenue Code excludes from a taxpayer’s gross income amounts received from personal injury awards. There is an additional tax benefit in a structured settlement. When a case has been structured such that it is paid out in the form of an annuity, that entire income stream is tax-free. In contrast, if a case is resolved in a one- time payment, just the one-time payment is tax-free- a wonderful benefit- but any income produced from that money would be taxable.

The second frequently cited reason for structuring a case is that the plaintiff may not be accustomed to handling a large sum of money. A pay-out in the form of an annuity is a forced kind of savings. This is particularly helpful for many people.
One thing that cannot be forgotten in this difficult economic time is that the company paying the structured settlement or annuity should be a company that has a strong rating from the prevailing rating services such as Moody’s or Standard & Poor’s. Also, the structure should be guaranteed by yet another company, also with a high rating.

The proper structured settlement as part of the resolution of a personal injury case may be advisable. Just be sure that the safeguards are in place and that the recipient is one who would do well with a structure.

Robert Feinberg
Boston Personal Injury Lawyer

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It's Not The State Of The Courts, It's The State Courts

nospam@example.com (Robert I. Feinberg) — Fri, 17 Apr 2009 16:43:26 -0400

Where is the best forum to bring a personal injury action? Federal Court? State Court? In a diversity action- where the plaintiff and defendant are from different states- there is an opportunity to sue in the Federal Court. Bear in mind that there still must be jurisdiction over the defendant. I will discuss this jurisdictional issue in another blog. The purpose of this blog is to discuss the relative merits of Federal versus State Court for personal injury actions.

For the most part, and generalizations do have exceptions, experienced personal injury lawyers will maintain that the State Court is the preferred forum. I do not intend to get into a major jurisprudential discussion; I simply want to advise readers that generally the State Courts are considered a more hospitable place for injury cases. There are many theories for this and I will offer a few: the perception that federal jurors are more affluent, that juries of fewer than twelve pose more difficult challenges for the plaintiff, and that Federal judges view their courtrooms as appropriate places for major policy questions and not for the adjudication of injury matters.

Maybe that old adage, “Don’t make a Federal case of it” makes sense.

Feinberg & Alban, P.C.
Boston Personal Injury Law Firm
141 Tremont Street Boston, MA 02111

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Full Disclosure and Expert Witnesses

nospam@example.com (Robert I. Feinberg) — Thu, 09 Apr 2009 14:03:47 -0400

For thirty five years, Massachusetts has had Rules of Civil Procedure. Rules 26-37 concern what is called discovery. In essence, the rules seek to bring about the free exchange of information between the parties. At least that is the theory. The theory, whether fully and faithfully observed, cannot be ignored. This lesson was made clear in last month’s Massachusetts Appeals Court decision of Hammell v. Shooshanian Engineering.

The Hammell case concerned the discovery of opinions of expert witnesses. As set out in Rule 26, a party is to describe the subject matter on which an expert will testify, the facts and opinions, and the grounds for each opinion. Moreover, a party has a duty to supplement those responses under certain circumstances. The Hammell court acerbically noted that one of the party’s experts made an “egregious about-face violat[ing] the purpose of Massachusetts Rule of Civil Procedure 26(e)”, the supplementation requirement. The Appeals Court cited the requirement to update answers where, for example, the expert is revising an opinion.

It is always the wise course to provide a detailed opinion of the designated expert, or at least as detailed as the attorney feels a court may expect. Otherwise, sanctions can result, not a pleasant experience for the attorneys or their clients.

Feinberg & Alban, P.C.
Personal Injury Law Firm Boston
141 Tremont Street Boston, MA 02111

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The Personal Injury Plaintiff as Consumer

nospam@example.com (Robert I. Feinberg) — Tue, 31 Mar 2009 16:40:17 -0400

A weapon in Massachusetts personal injury cases is our Consumer Protection Statute, 93A. Passed in the late 1970’s, this is a tool that may have originally been designed to aid the consumer in his/her fight against the retailer for unfair and deceptive acts or practices in commerce. Over the years, it has also been used against insurance companies for unfair claims handling practices. That is through resort to another statute, 176D, which is used in concert with 93A.

93A affords the aggrieved party an opportunity to recover treble damage and attorneys fees. It certainly has great potential and will cause the offending party to take notice once the 93A demand letter has been sent. It requires a response within 30 days so before you know it the battle will have been joined.

A lesser known use of 93A comes about from the Attorney General regulations. Pursuant to section 2(c) of 93A, the Attorney General is empowered to issue regulations. Some regulations are made applicable to nursing homes, to landlords, still others to private employment agencies and so forth.

To me, one of the most intriguing uses of 93A comes from Attorney 940 CMR 3.08(2): “It shall be an unfair and deceptive act or practice to fail to perform or fulfill any promises or obligations arising under a warranty.” This opens the possibility in products liability cases where warranty is always pleaded. But it is also useful in the landlord-tenant context. The landlord, by our law, warrants the unit is habitable and meets all codes, including Sanitary and Building codes. If that isn’t met and that violation was a proximate cause of the tenant’s injury, you have a 93A claim. Yes, consumers of all types have rights too.

Feinberg & Alban, P.C.
Boston Personal Injury Law Firm
141 Tremont Street Boston, MA 02111

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Case Values and Scarring

nospam@example.com (Robert I. Feinberg) — Fri, 27 Mar 2009 08:25:53 -0400

Pricing personal injury cases is not easy. Having said that, experienced attorneys will often put a value on cases in amazingly similar amounts. Lawyers will also ask other lawyers who they respect to “price” their case. Sort of a blind taste test if you will. The difference in assessments is often not great.

The most challenging of cases to price is a scarring case. Even there, despite the seeming subjectivity, there are guidelines, as there are with other types of personal injury cases. Let me offer a few:

- The location of the scar. Obviously, facial scarring is the worst.
- The age of the plaintiff. Obviously, the younger the more sympathetic and the longer lasting the injury will be.
- Permanence. Obviously, the proper medical conclusion on permanence is vital in obtaining the greatest value.

The big debate comes about concerning the gender of the victim. It used to be that scarring on a girl was deemed by some to be more serious than on a boy. I don’t intend to get into that societal battle which raises issues of sexism. (Interestingly, the discriminated gender is male in that context.) I will simply note that insurance companies choose not to focus on the gender of the plaintiff when the scar is on a girl. When the scar is on a boy, the insurance company will say, “Hey, it’s not on a girl.” That they should take a position of convenience is not a surprise. Boy, oh boy.

Robert I. Feinberg
Personal Injury Lawyer Boston
141 Tremont Street Boston, MA 02111

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