Massachusetts Lawyer Blog

This Mass PI law post is the fourth in a series of five discussing themes to watch out for when settling your car accident case (or questioning whether you need a lawyer at the start of  your Massachusetts personal injury case.)

Fear of trial – How far do you want to take your case? Are you willing to lose it all?  In addition, are you willing to go through all the pre-trial actions and wait for a trial date in the distant future? These are fears that can be relied on and can often lead to low settlement offers being offered, and unfortunately too often, accepted.

Next installment: Part 5 -- Wolf in Sheep's Clothing

Ronald J. Levine and Susan L. Swatski-Lebson in Legal Technology ask, Are Social Networking Sites Discoverable?  This is another article demonstrating the risks and considerations in social networking sites.  They conclude,

Although these sites provide users with a sense of intimacy and community, they also create a potentially permanent record of personal information that becomes a virtual information bonanza about a litigant's private life and state of mind. The converse thus becomes the moral for litigation counsel -- this new generational fount of potentially discoverable information should be high on the list of priorities when evaluating a new matter.

While employees need to be careful what they post, employers should take care in how they use the information they find, too.

What is considered "income" in a Massachusetts divorce for the purposes of Child Support under the new Child Support Guidelines Effective January 1, 2009?

For purposes of these guidelines, income is defined as gross income from whatever source regardless of whether that income is recognized by the Internal Revenue Code or reported to the Internal Revenue Service or state Department of Revenue or other taxing authority. Those sources include, but are not limited to, the following:

1. (a) salaries, wages, overtime and tips; (b) income from self employment;
2. commissions;
3. severance pay;
4. royalties;
5. bonuses;
6. interest and dividends;
7. income derived from businesses/partnerships;
8. social security excluding any benefit due to a child’s own disability;
9. veterans’ benefits;
10. military pay, allowances and allotments;
11. insurance benefits, including those received for disability and personal injury, but excluding reimbursements for property losses;
12. workers’ compensation;
13. unemployment compensation;
14. pensions;
15. annuities;
16. distributions and income from trusts;
17. capital gains in real and personal property transactions to the extent that they represent a regular source of income;
18. spousal support received from a person not a party to this order;
19. contractual agreements;
20. perquisites or in-kind compensation to the extent that they represent a regular source of income;
21. unearned income of children, in the Court’s discretion;
22. income from life insurance or endowment contracts;
23. income from interest in an estate, either directly or through a trust;
24. lottery or gambling winnings received either in a lump sum or in the form of an annuity;
25. prizes or awards;
26. net rental income;
27. funds received from earned income credit; and
28. any other form of income or compensation not specifically itemized above.

The New Guidelines also discuss Overtime and Secondary Jobs, Self-Employment or Other Income, Unreported Income, and Non-Parent Guardian Income.

Craig Ball, in his article, GPS Evidence Might Drive Your Case Home, writes:

Think how many murders, rapes, burglaries, robberies, thefts, kidnappings and drug deals could be solved -- and innocent persons exonerated -- by reliably placing suspects in space and time. DNA just puts the accused at the scene. Reliable GPS data puts the suspect there between 9:42 and 10:17 p.m. and reveals where she came from and went
next.

With the FCC's rules getting stricter on cell phones and locating services (as well as GPS systems in corporate vehicles or being used by consumers), this may be another area to keep watching in upcoming civil and criminal cases in Mass. and around the country.

A small sampling of other blogs or posts from other blogs discussing GPS and various civil and criminal legal issues are:

• GPS Tracking Systems
• Use of GPS Tracking Devices in the Workplace - Some Things Employers Should Consider
• Law - "Police Using G.P.S. Units as Evidence in Crimes"
• GPS: Privacy Law Blog
• GPS Trackers Foil Cheating Spouses
• John Burkoff on GPS and Search Law
• Stalkers Use GPS to Track Victims

This Massachusetts PI law post is the third in a series of five addressing some of the themes to be on the lookout for when settling your car accident case or questioning whether you need a lawyer at the start of  your Massachusetts personal injury case.

Wait them out – A driver injured when another car struck her from behind suffered injuries and incurred minor damages.  The medical bills were just under the threshold for a claim to be pursued ($2,000 at the time).  Don’t expect the insurance company to tell you about the out of pocket expenses you can be reimbursed for and make your claim actionable.  In other instances, they can just wait you out and offer to make a small payment knowing you are getting collection letters and want to protect your credit.  If you don't know about the tort threshold is, are close but not sure what counts, or concerned about your unpaid bills, then consult with a MA personal injury attorney.

Next installment or Part IV: Fear of Trial

Did you know there are lawyers in Massachusetts who are qualified for offering services in certain Probate and Family Courts on a limited basis?  This allows you to hire a lawyer to help you with some things but not others.  For instance, a lawyer could help you draft a complaint for divorce, a probate petition, a license to sell real estate, or coach you on evidence matters.  Some could even be hired for a day or part of day to attend a motion, deposition, conference, mediation, hearing, or trial. 

The goal of this program is to find ways for people to gain access to qualified attorneys on an as needed basis.  The philosophy is, some representation is better than no representation.  You can read more about this program at the Massachusetts Bar Association site or visit here for various orders from the SJC extending the program in certain counties through 2008.

Massachusetts had three questions on its statewide ballot in yesterday's election.

• Question 1 (eliminate state income tax) failed;
• Question 2 (marijuana possession of one ounce a civil fine not criminal matter) passed; and
• Question 3 (eliminate dog racing in MA in 2010) passed.

Boston Globes Results
Massachusetts Ballot Questions as Appeared November 4 2008

"Yes he did." Now with respect to the judiciary, "Yes he can," remains a theme likely to apply without much opposition. Bloomberg.com: News reports

The election of Barack Obama and a Democratic surge in the legislative branch could signal a shift in the nation’s court system. As President, Obama will be able to appoint federal, and possibly Supreme Court,judges that are more supportive of consumer and employee rights than many currently on the bench. Equally, a Democratic majority in the Senate should lead to swift confirmation of appointees.

Greg Stohr's article provides more analysis and context for court's future under an Obama Administration.

This post is the second in a series of five that addresses some of the themes to be on the lookout for when settling your car accident case (or questioning whether you need a lawyer at the start of your Massachusetts personal injury case.)

Blame the victim -- The at-fault driver’s insurance company tries to pressure you into a speedy, unfair settlement and if you don’t agree they threaten to sue you. The theory becomes you’ll get nothing, and be responsible for the unpaid bills. I have an elderly client they tried this with. She was parked at a light and rear-ended but they tried to bully her and claim it was “her” fault. Don't let them push you around. If it starts, end the conversation and get an attorney.

Next installment #3 -- Wait them out.

Thanks to Susan Cartier Liebel's blog post for pointing me to a great video. In under 9 minutes, the video, "Did you know 2.0", clearly conveys an appreciation of America's challenges in education and with evolving technology.

I find the video's message akin to Al Gore's movie "An Inconvenient Truth" (view trailer), but instead of environmental challenges, this video illuminates challenges in both education and technology -- although I suspect neither of these is ultimately too far removed from Gore's concerns. With the elections approaching, the economy struggling, and people's desire for change bubbling over, it think it's fair to predict for the times they are a-changin' in politics, technology, and law.

Auto accident laws (in Massachusetts or anywhere for that matter) should exist to protect consumers involved in auto accident claims and settlements, but the victims of car accident injuries will likely tell you the process can be confusing and daunting.  For many, it appears, the laws protect the insurers more than the injured.

Massachusetts personal injury attorneys help balance the equation against the powerful insurance companies as well as keep in check the unfair or deceptive practices that can be employed.  Without a MA lawyer to help assess a Mass. personal injury case (property damage, lost wages, car accident injuries, insurance, medical bills, out of pocket costs, prescriptions, …), how does the average consumer know if a settlement of their car accident claim is in their best interests?  The insurance company/industry wants you to believe they can help you with this and you don't need a lawyer.

This post is the first of five that addresses some of the themes to be on the lookout for when settling your car accident case or questioning whether you need a lawyer at the start of your Massachusetts personal injury case.  In the posts to follow, I'll touch on a few general themes such as: lowball offers, "friendly" adjusters (who aren't your friend), delay tactics, blaming the victim, and fear of trials.  While having an attorney won't necessarily prevent these tactics from arising, your lawyer can deal with these head on and refocus the discussion back on obtaining the highest value for your case.  In sum, the theory behind these posts is: "forewarned is forearmed."

"Tort reform" sounds quaint, until you look under the hood and see what's really driving the engine.

Lawyers and the battles they fight on behalf of wronged clients are what often serves to keep the system accountable. Detractors say it's just about the money and greedy lawyers, but often the crux of the lawsuit isn't about money, it's about standing up for respect, integrity, and human decency.

Sure, sometimes this fight can only change an individual wrong, but other times fighting the good fight can change a broken system. Broken systems surround us and are out of balance -- medical care for the elderly is just one example that comes readily to mind.

It doesn't matter if you're from Massachusetts or Mississippi, end of life decisions will never be easy, but they should be made with proper medical evidence as this Mississippi case illustrates. 

The Mississippi Supreme Court recently upheld a $4 million award to the family of a woman who was misdiagnosed with pancreatic cancer and then given a lethal dose of painkillers.  An autopsy showed the woman never suffered from cancer.  The daughter best summed it up, 'a simple lab test could have stopped this from happening.' 

This should give you pause the next time you hear someone say, "we could run this lab test or that, but it's probably not going to show ..."  If there's an option, why not run the test?  Who is really being inconvenienced?  Is it wise to place all our faith and offer complete deference to the "professionals" making important medical decisions about care. A healthy dose of "prove it to me" isn't a bad thing, especially when we're talking about life and death. 

Sure it's easy to dismiss junk lawsuits, but cases like this above demonstrate that sometimes the only place to make a difference and force real change is to hit them in their pockets -- and hit them big.  Now maybe a few more life or death tests will get ordered, maybe it will take even more verdicts to send a lasting message. 

Of course, there are powerful interests that would like a limit on their economic liability -- they try to sell this in words like "reform," but it's really about protecting their profits and ignoring the pain caused to individuals who will undoubtedly suffer when greed and bonuses drive decisions over common decency and respect.