The Law Blog
our take on the law
October 24, 2011
Justice for all?
It's a concept we cherish as Americans. But how much justice can you really afford?
With the cost of going to court increasingly beyond the financial reach of the average person, how can you avoid going there in the first place?
Even as courts are cutting back on services, the cost of accessing the legal system continues to rise. Court filing fees, expert witness costs, and attorneys' hourly rates are steadily going in one direction: Up. While criminal defendants are entitled to a free attorney if they can't afford one, there are no such perks for civil litigants. And if you get served with a lawsuit - and have no insurance available to pay for your defense - you'll likely be asked to cough up a sizable retainer fee in order to hire a lawyer.
So, how can you avoid getting caught in the hamster wheel of attorney's fees and court costs? Here are a few tips that may help keep you out of court.
An ounce of prevention: There are times when it's okay to act as your own lawyer, but entering into any kind of significant business deal is not one of those times. When people try to save money on the front end by not having an attorney review a contract, they frequently end up regretting it when things go sideways later. Spending a few hundred dollars by having an attorney go over the details and make suggestions can save you thousands later.
Head them off at the pass: Not every dispute needs to turn into a lawsuit. An ethical attorney will try to find ways to negotiate a resolution to a dispute before it gets into court. Having an advocate - one without an emotional attachment to the dispute - try to work something out with the other party's attorney is nearly always worth the investment.
Take out insurance: Investigate pre-paid legal service plans. If you regularly need legal services, ask an attorney if she'll agree to accept a monthly retainer for a maximum number of hours per month. Consider, too, insurance policies you may already have. You'd be surprised at the types of claims that homeowner's insurance policies cover.
Mediate: These days, courts practically force litigating parties to try to resolve their disputes before trial by using a mediator. While paid private mediators can be pricey, most courts keep a roster of trained, volunteer attorney mediators who donate two or more hours of their time to help you try to settle your case. If the case hasn't yet gone to court, consider using a local attorney - one who doesn't represent either party - as a neutral person to help you work it out. And when you do, make sure you put it in writing and sign it.
Don't wait: Don't let a disagreement fester until one party decides to sue. And if you suspect you've been treated unfairly, seek legal advice promptly. There are laws that put absolute limits on the time in which you must file a lawsuit in order to preserve a claim. If you snooze, you may lose.
June 27, 2011
The case of the unintended spouse
"Chuck" had cared for his severely disabled wife for many years before her death. Unsophisticated and lonely, Chuck, who was in his 70s, was introduced to "Marilyn," nearly 30 years his junior. She was lively and provided the companionship Chuck so sorely lacked. After dating for a few months, Chuck moved in with Marilyn
Chuck's adult kids were worried because Marilyn made a lot of demands on Chuck's limited finances. But Chuck assured them that he was "just helping" and that he had no intention of ever marrying again. In fact, Chuck amended his Living Trust in 2010, reaffirming that he wanted to leave all of his property to his two children.
Three years later, Chuck was diagnosed with lung cancer. The prognosis didn't look good. Marilyn convinced him that if they formed a Registered Domestic Partnership, Chuck could get better insurance through her employer's group health plan. Without seeking advice, Chuck agreed. The registration certificate arrived just a few days after Christmas.
When Chuck's daughter "Maggie" and son-in-law learned the news, they were aghast. "Dad, do you realize that, as a domestic partner, Marilyn has all the rights of a wife?!" Maggie asked. There was a long silence at the other end of the phone.
Three weeks later, Chuck died. A month after that, Maggie - now trustee of her father's Living Trust - got a letter from an attorney representing Marilyn. What Marilyn wanted was nothing less than one-third of Chuck's estate. All for 22 days as a registered domestic partner!
In the end, Marilyn got almost everything she wanted. How could this be? you might ask. What about Chuck's Living Trust?
The answer is a little-known California law that was enacted to protect the rights of an "unintentionally omitted spouse." Chuck had a Living Trust in place before he met Marilyn and before they registered as domestic partners. But Chuck never changed his Trust after his marital status changed. His Trust didn't mention Marilyn at all, and it didn't say that he specifically wanted to disinherit any future spouse he might acquire. Under the law, he was deemed to have "unintentionally omitted" Marilyn from his estate plan. No matter that he had left everything to his family - Marilyn was now entitled to an intestate share of Chuck's property as Chuck's "omitted spouse.". ("Intestate" describes someone who dies without a will or trust.)
What can we learn from Chuck's story?
1. Never sign a document without understanding all of the possible ramifications. If Chuck had known that he was making Marilyn the equivalent of his wife, he'd never have signed the registration form.
2. Any time your marital status changes, have your will or trust reviewed by a qualified estate planning attorney. The money you spend will save your family expense and heartache after you're gone, and you will ensure that your wishes are carried out.
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February 16, 2011
The real malpractice crisis
This week, President Obama announced an initiative to overhaul state medical malpractice laws, citing the rising cost of health care and the alleged role of malpractice lawsuits in driving up costs.
While health care costs are indeed going up, lawsuits against negligent doctors and hospitals are not to blame. Supporters of so-called "tort reform" are distorting facts and playing into the hands of big insurance companies who want to further limit the rights of patients who are maimed or killed due to medical errors.
California has limited the rights of injured patients since the passage of the Medical Injury Compensation Reform Act ("MICRA"), which places a cap on the amount of damages such patients can collect; limits the fees of attorneys seeking justice for such patients; and imposes special procedural requirements on malpractice lawsuits.
Many patients are shocked to learn that the law puts a $250,000 limit for physical and emotional pain and suffering caused by negligent medical care. The limit makes no distinction based on the type of injury suffered. It doesn't matter if the patient lost a limb or will be confined to a wheelchair for life; the law says that no injured patient's suffering is worth more than $250,000. And the limit has never been increased in the nearly 40 years since passage of the law, despite the pleas of injured patients and their attorneys.
As the cost of medical care and the cost of bringing a malpractice to trial continue to rise, the fact is that the many patients injured every year by medical mistakes are simply denied justice because it is too expensive for most attorneys to represent them. Only the most catastrophically injured patients - those who will require extensive care for the rest of their lives - are likely to have access to the courts.
A study by the Institute of
Medicine of the National Academy of Sciences estimated that
as many as 98,000 patients may be killed each year in hospitals
alone as a result of medical errors. Medical mistakes are the sixth biggest killer in the U.S. Yet fewer than 1% of doctors nationwide face any serious sanctions by state licensing boards. If a doctor runs a red light and seriously injures you, there is no limit on the damages you can recover. But if the same doctor mistakenly removes the wrong organ from your body, resulting in permanent disability or even death, current law protects his or her insurance carrier from having to pay a just amount to the victim. Is this fair?
To learn more about the myths being used by the insurance industry to restrict the rights of injured plaintiffs, and the facts about preventable medical errors, click on the following links:
Myths about tort lawsuits
Statistics on preventable medical errors
Facts about the number & causes of medical errors
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