Author Archives: Robert I. Feinberg
Alternative Dispute Resolution – Arbitration
You may recall that in an earlier blog I spoke about alternative dispute resolution. In Massachusetts, the Pre-Trial Conference Memos ask if the parties are” amenable”, that is, agreeable, to alternative forms of dispute resolution. Recently, I blogged spoke about mediation and focused on the perspective that the mediator offers to you at the outset of the mediation. But what about arbitration?
Alternative Dispute Resolution – Mediation
A very noticeable change in the handling of personal injury cases over the last three decades has been the willingness of both sides to engage in alternative dispute resolution. Even the Pre-Trial Order of the Massachusetts Superior Court asks about the parties’ willingness or amenability to alternative forms of dispute resolution. Generally that means mediation or arbitration. I have blogged primarily about mediations and I will blog a little about arbitrations over the course of the next few weeks. But let’s turn our attention once again to mediation. In this blog, I will focus on what you will hear from the mediator at the outset.
The Client as the Primary Source
As a personal injury attorney, it is obviously necessary for me to have a complete and accurate understanding of my client’s injuries. How have the injuries affected my client? What exactly has he/she gone through in terms of pain and suffering? What is the true measure of loss of earning capacity? The source for learning detailed answers to these questions is from the client himself/ herself.
Respondeat Superior and the Meaning of Latin Terms
Latin terms are commonly used in law and while they may sound fancy, I have to say that their doctrines are pretty straight-forward and pretty clear. The doctrine that I would like to speak about today is known as Respondeat Superior. Essentially it means that the employer is responsible for the actions of its employee in the course and scope of employment of that employee. It is interesting that when I have reviewed cases that have been prepared by younger lawyers, there seems to be an overemphasis on the notion of Respondeat Superior.
The Problems with Pre-Settlement Funding
You will not find a shortage of companies that offer to loan you money on your case. I have seen them increasingly used in recent years. Having an injury can be a time-consuming, stressful and money-sapping process, especially if the client is out of work. As a result, businesses have been created with the idea of advancing money to injured people but, of course, fully expecting to get that money back plus interest and fees. It’s the “plus interest and fees” that need close examination.
Stairway Accidents
Believe it or not, in the field of personal injury, there is a whole specialty, or perhaps we should call it a subspecialty, on stairway cases. These cases involve slips or trips and falls that occur on stairways. There is no shortage of data on such accidents. The Consumer Products Safety Commission has collected much of it over the years. Other professions are attuned to safety issues. Designers and architects are always mindful of what the safest configuration will be in constructing a stairway.
How Medical Records Can Support Your Case
What can be more important in a personal injury case than medical records? In considering some of the factors that I want to bring to your attention in today’s blog, I thought back to how I started in tort law or injury law. I began my legal career in a personal injury defense firm in the 1980s, where my boss would frequently go to the Middlesex County courthouse to read medical records of various clients who had cases that we were defending.
Facts vs. Law
An esteemed judge has said in a trial practice course that as between facts and law, facts are a hundred times more important than law. In these blogs I often deal with law but hopefully it is understood to be an essential framework – but only a framework- for case development. By case development, I mean finding facts that fit into the law. In this blog, I will talk to you about how we go about proving some of the elements of a case. What is the best source or evidence that will help to prove my client’s case?
Why Are Mediations So Popular in Massachusetts?
As you may be aware, several of my blogs in recent years have dealt with mediation. Mediations are increasingly used as is all forms of alternative dispute resolution. I find it remarkable how commonplace mediation has become for major civil cases, i.e. major personal injury cases as compared to when I started practicing law thirty-five years ago.
Use the Seatbelt Even Though It Can't Be Used Against You
First let me go on record, as the Massachusetts Academy of Trial Attorneys has, and greatly advocate the use of seat belts. It is one thing that we can all do to help enhance our safety. Unfortunately, sometimes I am faced with clients who are in serious motor vehicle accidents who did not have a seat belt on at the relevant time.