Recent Injury Articles
Marsha Alban obtains award of $245,000 on Slip & Fall case
At an arbitration hearing, Attorney Marsha Alban successfully received an award of $245,000 for her client, a mail carrier.
Firm Helped by New Law in $295,000 Recovery for Snow and Ice Injury
The July 2010 decision of the Supreme Judicial Court in Papadopoulos v. Target Corporation 457 Mass. 368 was used by Robert Feinberg in obtaining a $295,000.00 settlement at a mediation in January of 2011.
A Report, Though Inadmissible, Just May Be Useful
Whether it be a government report or a business record, opinions contained in those documents are not admissible in the courts of the Commonwealth. Certain facts which are contained in public records are admissible but evaluative reports, opinions, and conclusions are not.
The Ultimate Weapon
When people speak with scorn regarding personal injury law, they often complain that it is just a situation where the lawyer and client are seeking deep pockets.
The NFL Grudgingly Confronts Head Injuries
One of the biggest, wealthiest, and most powerful institutions in the United States is the National Football League. A billion dollar corporate entity does not move or adjust to realities quickly, especially if those realities present embarrassing dilemmas. The issue of concussions and their effects is such a dilemma for the NFL.
Activism v. Precedent
Senate hearings on Supreme Court nominee Elena Kagan focused on the issue of whether a judge should be an activist or respect precedent.
A Wolf in Sheep's Clothing
When I recently changed my auto insurance, I received a packet from the new insurer. Front and center was their advice not to admit responsibility for an accident
No Contingent Fee for Experts
It is a well-established practice that a lawyer cannot employ an expert witness on a contingency fee. It is common for personal injury lawyers to use a contingency fee agreement, whereby they are only paid if the plaintiff receives a settlement or award, but this practice is strictly forbidden for experts
If the Shoe Fits
Ask a law student what case stands for the proposition that a defendant needs minimum contacts with the forum state to be sued in that state, and the answer (hopefully) will be International Shoe Co. v. State of Washington, 326 U.S. 310 (1945).
When Tortious Leads to Tortuous
If you use spell check and you type the word “tortious” you will find that it is thought that you meant to write “tortuous”. So what is “tortious” and what is “tortuous”?
When Here Comes the Sun, Be Prepared
I have blogged about defendants in automobile accident cases who will attribute a collision to weather conditions that they claim made the accident unavoidable. Of course, my rejoinder is that a driver acting reasonably must take into account the prevailing weather or road conditions.
Ethics and Tactics
Advocating for clients requires honesty. Not surprisingly, the rules of professional conduct speak to this.
Registrar of Motor Vehicles is Agent
Probably the most famous case in the country involving personal jurisdiction arose in Massachusetts. It involved an out-of-state driver who caused an injury in Massachusetts.
When the Postman Rings Twice
Having considered the kind of behavior that creates personal jurisdiction in Massachusetts, how does one go about serving such a person/entity with the complaint?
The Horse's Tort
A local racetrack has been advertising quite a bit on the Boston stations. When I hear their ad I am reminded of a case I had against them more than 20 years ago when a horse kicked a client and fractured the client’s patella.
In Personal Injury the Fed Looks to the State
If you are able to bring an action in federal court for personal injury – because of diversity of citizenship between the parties – and you have jurisdiction over the defendant, would the federal court apply the same principles of tort law that the state in which it sits applies?
A Duty of Reasonable Care on the Property
One of the biggest decisions was the case of Mounsey v. Ellard, 363 Mass. 693 (1973) where business invitees were eliminated as a separate category and a duty of reasonable care was imposed upon all those lawfully on the premises.
Triangulation: Plaintiff, Defendant, Insurance Company
Lawyers, including defense lawyers in civil cases, have a duty of loyalty to a client. That loyalty is described by the Supreme Judicial Court in its commentary to the Ethical Rules as “an essential element.”
Yogi and the Law
The great philosopher Yogi Berra once said about his profession, "Baseball is 90% mental, and the other half is physical." As you will note, this adds up to more than 100%.
Don't think you can make a federal case of it.
A number of lawyers have mentioned to me over the years that federal court is an option where the defendant cannot be sued in Massachusetts. Frankly, this is a misperception of civil procedure law.
Mick Jagger: Paint it black; Personal Injury Lawyers: Paint it Yellow
In a personal injury claim brought as a result of a fall on property, such as in a parking lot, the courts will consider whether the defendant “had failed to delineate the blocks [the plaintiff having fallen over an automobile “bumper block” ] from the surface of the lot by use of contrasting color or other means of demarcation”.
Implications of a settlement with one of two (or more) defendants.
In the chess match that can take place in the course of litigating personal injury cases, one topic has especially fascinated me. It involves the situation where you sue two defendants but settle prior to the trial with one of them.
Advancing costs in a contingency case.
The ethical rules permit an attorney who is hired on a contingent fee basis to advance costs in the pursuit of the case.
Texting on the Roads, the Modern Form of Intoxication.
Both bodies of the Massachusetts's legislature recently passed bills banning texting while driving a motor vehicle. Governor Patrick has not expressly supported either bill but has voiced support for a ban on driving while texting.
Natural or Reasonable ? Two Approaches in Snow-and-Ice
My past blogs which have dealt with the topic of snow and ice injury cases in Massachusetts have focused on the natural accumulation rule.
A Cruise to Nowhere:
The Massachusetts Bar Association publishes a book, "Traps for the Unwary." That is a great title. There are many traps which can ensnare those who are unwary and even those who feel they are wary.
Continuing Education is Key:
To the surprise of many, Massachusetts does not have a continuing legal education requirement. Most states do.
In the Beginning...:
Psychologists and consultants examine all kinds of human behavior and the courtroom is no exception.
A Plea for a Second Opinion [If Desired]:
In medicine we are often told of the importance of getting a second opinion. Obviously, the same can be true in law.
Injury With No Contact:
A surprising number of times the issue arises as to whether there can be a claim for personal injuries where there has been no contact between automobiles or, theoretically, between an automobile and a pedestrian.
The Ineffable Nature of Personal Injury Value:
It is understandable that clients would like to know how much their case is worth. This raises the issue of how to value cases. In civil law, particularly in personal injury law, the only means of redress is financial compensation.
Personal Injury Cases in the Context of Watergate:
In May of 1973, America was fixated on the Senate Watergate hearings. I will forever remember Senator Howard Baker's frequent question, "What did the President know and when did he know it?"
Can Your Lawyer Still Hit the Fastball:
As a baseball fan, I have always chuckled at the statement attributed to Ty Cobb, the great baseball player. Cobb, to be sure was crusty, if not downright mean, but in at least one instance he was very funny.
When a Lien is not Lean:
Liens are taking on a major role in the resolution of personal injury cases. By contract, almost every health insurer can assert a lien on their subscriber’s third party recovery.
As Massachusetts Goes, so Goes...:
History buffs will remember a famous expression that grew out of a disastrous Liberty Digest magazine poll in 1936. That poll predicted a landslide for Republican Alf Landon over Democrat Franklin Roosevelt.
Torrez Comes to the Set and Pitches... This Time in Court.:
When Boston Red Sox fans hear the name of Mike Torrez, they immediately think of Bucky Dent and the homerun in the 1978 one game Red Sox-Yankee Playoff. However, Torrez has a role in Massachusetts courts where he served as an expert witness in a case in which a bullpen pitcher threw a ball that injured a fan.
A Little Enthusiasm Can Go A Long Way:
Along with many other characteristics that your personal injury lawyer should have is enthusiasm for your case. That quality will be conveyed at every stage of the litigation process.
Honesty is the Best Policy:
I have often been asked if a client's return to work shortly after being injured will compromise the case. I am proud to say that I always answer, 'Do what you feel you are capable of doing and don't let the case influence you.' Honesty is the best policy in our actions and deeds.
He Who Hesitates:
It is generally stated that personal injury cases in Massachusetts, really tort cases, have a three year statute of limitations. The problem is that, as with most generalizations, there are exceptions.
Four Characteristics of Witness Testimony:
When a lay person testifies to what he or she has observed about an accident involving my client, I am sure to consider the following: the witness' ability to perceive, tell the truth, remember, and narrate.
The Cart Before the Horse:
I was reviewing some old files last month when I came across portions of a case that I handled in the 1980s. Actually, the case was begun by another attorney who went on to achieve major success in a field related to law, but not in the practice of law.
Why Go it Alone?
The proposals to reform the contingency fee system have at their heart, it seems to me, a desire to remove the lawyer from the process.
Yes, A Picture is Worth A Thousand Words:
Well before the digital age, we heard the expression, "a picture is worth a thousand words." Nowhere is that more appropriate than in the personal injury context.
Eggs, Insurance and the Judge's Charge:
At the conclusion of a trial in the judge's charge to the jury, the instruction will often be that the "defendant takes the plaintiff as he finds him".
Experts and Money:
In a recent blog I discussed the wide latitude that is given to a cross-examiner on the issue of a witness' bias. More specifically, the latitude is especially great on the bias of an expert witness and the witness' compensation.
The Good Old Days?
The nostalgia pull is so strong that in almost every realm people look back and feel times were better.
The Paper Trail - A Helpful Trail:
When United States Supreme Court nominees testify before the Senate at their confirmation hearings the press is always talking about "the paper trail".
It's Not the State of the Courts it's the State Courts:
Where is the best forum to bring a personal injury action? Federal Court? State Court?
Don't Tinker with the Contingent Fee System:
Unfortunately, no one in the blogosphere has addressed the Manhattan Institute's December 2008 report promoting a loser pays rule. Loser pays, you will recall, forces the losing party of a lawsuit to pay the legal fees of the winner.
Do Not Necessarily Fear a Damaging Statement. If in a Writing- it is still Hearsay:
Sometimes in personal injury law things are not as they appear.
The Signs of Head/Brain Injury…Father Knows Best (and Mother too)
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.
With Head Injuries It’s Not About X-Rays
Those of us who deal with personal injury cases have become familiar with the diagnostic tools available to the medical profession.
Contributory Negligence, Comparative Negligence. What's in a name? A lot.
For decades, actually until the 1970s, when Massachusetts adopted the rule of Comparative Negligence, a slightly different doctrine was in effect: the rule of contributory negligence which was a complete bar to the plaintiff’s recovery.
Joint and Several: Yes, the more the merrier.
Many states have considered changing the rules of joint and several liability.
The American Rule versus English Rule.
Every so often Congress and the states legislatures consider tort reform.
A Final Consideration of the English Rule. It's ill-conceived.
Let's take a closer look at the anti-consumer proposal of the Manhattan Institute on the payment of legal fees in civil cases, including personal injury cases.
We Are Marshall
Personal injury law in most circumstances is the law determined by a state's courts and its legislature.
Interesting Experts and Videotape
For a couple of decades, Massachusetts personal injury lawyers have had the benefit of taking expert witness depositions by audio-visual means.
To Structure or Not, That is the Question :
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.
Personal Injury Awards are Tax-Free:
Clients are forever amazed that the Internal Revenue Code exempts from the definition of income personal injury awards.
Key areas in any personal injury case:
There are several key areas to any law firm's successful handling of these cases.
The Personal Injury Plaintiff as Consumer:
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.
Case Values and Scarring:
Pricing personal injury cases is not easy. Having said that, experienced attorneys will often put a value on cases in amazingly similar amounts.
Of Natasha Richardson, Head Injuries, Helmets And Evidence:
The recent tragedy involving Natasha Richardson has brought to light the science of head injuries, particularly with respect to epidural hematomas and skull fractures.
Harm to the Consumer:
An unfortunate twentieth anniversary has just passed. A law that went into effect on January 1, 1989 greatly curtailed the rights of Massachusetts auto accident victims.
Alternative Dispute Resolution? It Depends:
I am forever asking people in business how their work has changed since their career began. Let me offer my opinion on the sea change in personal injury law.]
When Two Chances or Two Bites Will Do:
How many times have we heard that “you only get one chance in life” or “you only get one bite of the apple?"
Of Children and Comparative Negligence:
If a child wanders onto a construction site and falls injuring himself/herself, how do we assess the child’s conduct?
Disinterested is to Uninterested as Indifferent is to Uncaring:
In follow up to my last blog post about words of legal significance, I am reminded of the following word: disinterested. Often that word is confused with uninterested.
To Infer or to Imply:
When a person opens an umbrella what does that tell us about the weather? When a ship's captain brings aboard his wife and children what does that say about what he thinks of the seaworthiness of the vessel?
Motorcycle Accidents:
When I started practicing personal injury law, I was always told that there is a prejudice against motorcycle operators and that this will hurt in the representation of motorcycle victims.
Auto Accidents and Coverage:
Massachusetts auto insurance law is at least as difficult as “the uninitiated driver’s first foray into the city of Boston.”
Personal Injury Thoughts of Real People:
Attorneys representing injured victims – be it for accidents on premises, auto, products liability, medical malpractice and nursing home malpractice - must be willing to incur expenses to present the case thoroughly and imaginatively.
Of Personal Injury Law Bricks and Baseball:
Proving responsibility in personal injury cases can be reduced to the following: a brick by itself is a brick but together bricks make a wall. Essentially that is the definition of relevant evidence.
2008 Super Lawyer Award:
Attorney Robert I. Feinberg has been designated as a "Super Lawyer" in the category of personal injury for the fifth consecutive year as reported in issues of the Boston Magazine.
Accidents in Bad Weather:
As a Boston personal injury lawyer, I certainly encounter accidents relating to bad weather. These can take the nature of snow and ice, fall downs or auto accidents where the at-fault driver did not adjust for inclement conditions.
Evidentiary Rulings:
Why do evidence classes spend more than a month on hearsay? Because it is tricky, arguably convoluted, but as with such things fitting that negative description, it is important...
Evidence, Evidence, Evidence:
It is often said that the three most important factors in assessing the value of real estate are location, location, location. Well, the three most important factors in assessing the liability of a case are evidence, evidence, evidence...
Personal Injury Case Part II:
Valuing a case involves three crucial elements: Liability i.e. fault on the part of the person/corporation being sued; damages; and qualities relating to the plaintiff...
Personal Injury Case:
As I approach my thirtieth year of practicing law, I am still intrigued by what makes for a successful personal injury case...
Important Insurance Coverages:
For over twenty years my firm has been writing to clients about auto insurance...
Contingent Fee System:
It is often said with criticism that personal injury cases are taken on a contingent fee basis...
Court Filings are Down:
When I began practicing law in the 1980s, fillings in the Superior Courts of Massachusetts were in the range of 15,000 tort cases (i.e. torts are usually but not always personal injury cases)...
