Author Archives: Robert I. Feinberg

I was recently consulted on a case in which a young driver (with a history of reckless behavior involving alcohol) was entrusted with keys to a car by a parent. (More details about this case can be found on my website’s homepage.) When dealing with cases of this nature, the general rule is that previous accidents or behavior cannot be used as evidence in the trial of a particular accident.

Today I will be discussing the 93A Massachusetts statute, which declared unfair or deceptive acts or practices in trade or business unlawful. There is also a similar statute of 176D, which declares unfair acts or practices in the business of insurance unlawful. The original intent of the 93A statute, I think it is fair to say, was to help consumers when dealing with purchases of consumer goods, such as appliances.

Although there are several considerations that one must consider before hiring an attorney to pursue a personal injury case on his/her behalf, an absolute necessity is to make sure that a lawsuit is brought prior to the expiration of the statute of limitations. This probably does not surprise you as lay people are very familiar with the concept of a statute of limitations.

Often times in a personal injury practice we handle accidents occurring on leased or rented premises. In the past, Massachusetts courts differentiated between people who were on a property with the Courts using terms such as an invitee, licensee, and trespasser. Since the pivotal case of Mounsey v. Ellard, 363 Mass. 693 (1973) invitees and licensees have been merged into one category, those who are lawfully on the premises. The category of trespasser remains.

This blog will discuss the issues confronting a client when his/her civil personal injury case resolves. At the outset of the representation, there should have been a discussion of fees and expenses so that there will be no surprises. This understanding should also have been memorialized in the Contingent Fee Agreement. Does the attorney expect the case expenses to be paid by the client as they are incurred or does the attorney expect reimbursement upon the conclusion of the case?

There are three important factors which determine the value of my client’s case. The first two are expected but the third may surprise you. The first is liability. How did the accident or injury happen? Who was at fault? And what was the conduct of both my client and the other party? These are essential questions in determining the extent of the liability or lack thereof. The second issue is the damages. By this, we mean how badly was the client hurt and what are the longterm effects.

I am often asked by an insurance company if my client will give a statement. This request raises a few intriguing questions. First, is my client obligated to give a statement? If it is a car accident case, the client is obligated to give a statement when seeking so-called first party benefits, i.e. PIP (Personal Injury Protection). The authority for this is contained in the auto insurance policy. It states that in the event a person is seeking payment under any provision of the policy, the insurance company has the right to take an examination under oath.

What is called the “poor man’s keys to the courthouse”? The contingent fee system. In other countries, attorneys are paid directly by the client/litigant in the form of hourly compensation. In contrast, in the United States, in personal injury actions, a client is allowed to pursue a case where the attorney will only be paid if there is a recovery. Under this system, people who might otherwise be unable to pursue a rightful claim can do so without fear that they will face a large bill at the conclusion of the case. The first part of the contingent fee system to understand is the percentage of the recovery.