Articles Posted in Mediation and Arbitration

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Massachusetts hit and run accidents happen all the time.  If you have been involved in one, you need to know about the following:

1)  The accident must be reported to your insurance company immediately;

2)  The vehicle that caused the accident and left the scene is unable to be identified;

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If a minor is injured in an accident and has a valid personal injury claim, it is the usually the mother or father of the minor that is the one bringing the claim.  I represent minors who have been injured in accidents and when I meet with them for the first time, it is the parent or "next friend" whose name is actually listed on the contingency fee agreement, as well as any other paperwork that is signed. 

Also, in Massachusetts, upon settling a personal injury claim for a minor, a prudent lawyer always seeks to obtain court approval for the settlement.  Many judges today want to be sure that the settlement proceeds that belong to the minor will not be spent by the parents.  Judges usually like to see a structured settlement or other similar vehicle that protects the minor' s money until the child reaches the age of majority.  Without such safeguard to protect the child's money, many judges will refuse to approve the settlement.

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It is the Complaint that officially begins a personal injury lawsuit in Massachusetts.  This document is referred to as a "pleading."  If you have a small case with limited damages (personal injuries) the case should be filed in the District Court.  If you have significant damages, then the Superior Court is the proper court to commence the lawsuit.

After you file the Complaint, as well as the required Statement of Damages in court, you must then have the Complaint "served" on the defendant(s).  The best way to "effect service" is to have a sheriff serve the Complaint on the defendant(s).  This will cost, depending on the travel time for the sheriff, around $50.00. 

You must "serve" the defendant(s) within ninety days of the filing of the Complaint in court.  Once service has been made, the defendant(s) has twenty days to file an "Answer" in the court in which the Complaint was filed.  You must send to the court the "proof of service" which shows that you properly served the defendant(s) with the Complaint.  It is then that "discovery" begins.

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This list does not cover all factors that determine the value of a claim, only some of them:

– Type of accident;

– Whether or not the accident was partly your fault;

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Many of my clients, at the end of their case, often tell me that they were not going to pursue their case initially.  They tell me that once they realized the insurance company did not care about them, as their medical bills soared, and their injuries just got worse, is when they decided to contact my office.

Here are a few success stories from my firm, in representing people who initially thought their case was not worth pursuing:

-Woman goes to restaurant where she sustains very bad knee injuries, requiring surgery.  Case settles for $150,000.00;

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Yes.  Statistics show that claimants who have an attorney often receive a higher settlement – even after the legal fee is deducted – than those who negotiate with an insurance company without representation. 

Suppose you were injured in a small rear-ender, and the insurance company calls you soon after the accident and offers you $500.00 to settle your case.   You may think that that is not a bad offer, and since the insurance adjuster appears to have your best interest at heart, that you should probably just accept the offer.  The insurance company has you sign a release, and you forever release any and all rights you had in the case.

But, that neck pain still persists.  In fact, it has gotten worse.  You go to your doctor and he recommends some testing.  It turns out that you have a herniated disc in your neck that your doctors say was likely caused by the accident.  Because of the herniated disc, you will now have to undergo a regimen of pain management.  Eventually, the condition gets so bad that surgery may be necessary.  Your simple rear-end accident that seemed so trivial just got more serious.  You have no right to sue the driver who caused the accident because you signed that release.

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Will My Personal Injury Case Go To Trial?

Will my personal injury case go to trial?The short answer: it depends if you want it to or not.  Most cases involving personal injury such as motor vehicle auto accidents are resolved before trial.  The reason most cases settle before trial is that jury, as well as bench trials (a judge decides the case outcome), are so uncertain.  Their outcomes are so uncertain that they create great risk for the litigants.

Once the case is tried in court, the parties essentially lose control over the case outcome and agree that final resolution will be decided by a third-party.

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Minors in Massachusetts cannot initiate a lawsuit.  When a minor, for example, has an auto accident claim that requires litigation, the lawsuit is brought by the minor’s parents.  The parents, in the context of litigation, are referred to and named in the lawsuit as "next friend."  At times, a guardian must be appointed and approved by a court if the parents are not alive or do not have the capacity to act as "next friend" on behalf of the minor.

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I found this post over at San Francisco Mediation: A Better Solution authored by San Francisco Attorney Paula M. Lawhon that caught my attention because of its informative analysis of mediation in the context of a personal injury case.  It deftly chronicles the mediation process from start to finish.  If you will soon be involved in a mediation, irrespective of the type of case you have, I recommend checking out this post:

Here’s an example of a recent personal injury mediation from a serious car accident (with some details changed to protect the privacy and confidentiality of the parties and the mediation):

The parties at the mediation were the injured woman (the plaintiff) and her attorney as well as the insurance carrier and the attorney appointed by the insurance carrier to defend the driver against the plaintiff’s claims of serious personal injury from the car accident. The driver was not present because the insurance carrier and its attorney were there to represent his interests and they had the authority needed to make the decisions. (This is why we pay for car insurance.) The plaintiff was seeking almost $1 million in damages.

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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.

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