Author Archives: Robert I. Feinberg
Common Misconceptions of PI Lawsuits
Today’s blog is about common misconceptions regarding personal injury lawsuits. I have written blogs on trial practice evoking the old adage from the real estate field, “location, location, and location” in saying that trials are about “evidence, evidence, and evidence”. The pursuit of a personal injury case is at first a matter of “insurance, insurance, and insurance”, something that may surprise many. In every injury or accident case, we must know the insurance coverage of the adversary.
Wrongful Death Claims in Massachusetts
Wrongful death claims in Massachusetts are based on Chapter 229, Section 2 of the Massachusetts General Laws statute. In this blog, I will discuss the most important details of this statute. The claim is brought by a personal representative of the decedent, referred to as an administrator/administratrix or executor/executrix.
Common Questions for Personal Injury Lawyers
There are several questions that I am frequently asked as a personal injury attorney. The most common question is whether a client’s case will be tried or settled. Contrary to what we see on TV, most cases settle before trial. However, even if the case is settled, a lawsuit is often filed and discovery takes place. Your case could go almost to the point of a trial, but there are still many opportunities for settling prior to entering the courtroom. Mediation has become an often used tool and most litigators will consider it as an option.
Some Thoughts on Civil Cases
Most people are aware that in criminal cases the burden of proof is “beyond a reasonable doubt”. If that were expressed in numbers it translates to about a 90% certainty that the defendant has committed the crime. But people often assume that this is also the necessary burden of proof in civil cases. This misconception has been commonly expressed in the wake of the NFL’s investigation into the New England Patriots and Tom Brady for their/his possible role in the “deflate-gate”scandal. As the press has reported, there merely needs to be a “preponderance of evidence”, making it more than a 50% chance – or “more probable than not”- that the party is liable.
What Considerations Go Into a Motor Vehicle Accident Involving a Pedestrian?
Pedestrians often suffer extreme injuries when struck by a motor vehicle. In this video blog, I discuss the various legal considerations that one should be aware of concerning a pedestrian who is involved in such an accident in Massachusetts. One general consideration is the perspective of the opposing insurance company. The insurance company will attempt to defend against the pedestrian’s claim by invoking a Massachusetts statute that requires a pedestrian to cross in a crosswalk if one is available within 300 feet.
What Do We Look For After an Accident?
In a recent video blog, Defense attorney John Johnson spoke of important factors that he uses to assess a case. He explicitly mentioned that statements made soon after an accident or to a medical provider are very relevant to his determination of liability. As a plaintiff’s attorney, I want to point out that this can go either way: statements of the defendant at an accident scene are also very probative and for the same reasons.
The Dangers of Speculation By a Medical Provider in a Personal Injury Case
I often have clients who report to me that their medical provider will corroborate the crucial fact that the injury was caused by the accident. A review of the records, however, may reveal that there is a “possible” relationship between the accident and the injury. Sometimes, the term “could be related” is used. Thus, the causal connection is unclear at best.
Which Insurance Companies Do I Look to For My Car Accident?
In 1985, the Supreme Judicial Court decided Cardin v. Royal Insurance Co., 394 Mass. 350 (1985), an important case pertaining to auto insurance. In that case, the Court used a sentence that has stuck with me ever since reading the opinion: “Navigating the tortuous twists of automobile insurance law is at least as difficult as the uninitiated driver’s first foray into the streets of Boston.” This is an accurate statement because understanding and appreciating all of the nuances of automobile insurance law in Massachusetts is a very difficult task.
Is a Premises Liability Case Affected By the Open and Obvious Rule?
A premises liability case is one in which a person sustains an injury while on somebody else’s property, whether it be a landlord, business or other entity. These cases almost always involve an issue of management or control over the premises. The question is whether the landlord or other person in control exercised reasonable care in maintaining the area.
What Lessons Can Be Learned From the Fyffe Decision? Part 4 of 4
This will be the concluding blog in the series of discussions about the recent Massachusetts Appeals Court decision, Fyffe v. MBTA. There are a few more points worth considering. First, I have discussed the concept of speculation by a medical expert or an attorney in past blogs and the Appeals Court in Fyffe discusses the subject at some length. Specifically, the Court rejected the plaintiff’s attorney attempt to bring up the issue of quadriplegia because there was no record of evidence to support such speculation. There had been no suggestion of this issue in the pretrial documents.