Personal injury litigation

Personal injury litigation

Personal injury litigation is one of the few areas of the law where even the poor have equal access to justice. The reason for this is the contingent fee agreement.

With a contigent fee agreement a client pays the attorney a percentage of the total amount of any recovery in their claim, whether by settlement, jury verdict or some other alternative dispute resolution procedure. The “contingent” aspect of the fee means that if there is no recovery, there is no attorney fee.

The contingent fee must be distinguished from expenses, which ordinarily remain an obligation of the client. In many cases the attorney will advance expenses during the time the case is pending and will deduct the expenses from the client’s share of any recovery at the conclusion of the case. personal injury law

There are a number of advantages to the client in this type of fee arrangement, the most obvious of which is the absence of risk in owing an attorney fee when there has been no recovery. Another advantage is that the client feels more secure knowing that the attorney is sitting in the same boat–if the client goes down so does the attorney. The fact that an attorney is willing to handle a client’s case on a contingent basis tells the client that the attorney has a high degree of confidence in the case.

A final advantage of the contingent fee agreement is that it motivates the attorney to maximize the client’s recovery. In other types of litigation where clients pay the attorney by the hour for their time, it makes little economic difference to the attorney whether the client has a successful outcome. In contingent fee cases the attorney’s own recovery is tied to his/her results, so it is important he/she put in the time and effort necessary to bring about the greatest recovery.accident attorney

The percentage to be charged on a contingent fee case, to a large extent, depends on the type of case. In automobile accident litigation a contingent fee of 1/3 of the recovery is common. Medical malpractice cases, product liability cases and other more complex personal injury litigation often are handled on a higher percentage basis, because they frequently consume substantially greater amounts of attorney time and resources. Attorneys frequently advance many thousands of dollars in expenses, including expert witness fees, in the more complex personal injury litigation. It is not unusual in some of these cases for expert witness fees to exceed $20,000.00 to $30,000.00.

Workers’ compensation and Social Security Disability attorney fees are generally regulated by the agencies administering the law and often are somewhat less than in other areas of personal injury litigation. Depending on the type of case, some attorneys may charge a lower percentage on a contingent fee if the case is settled before suit is filed, more if the case is concluded after trial has begun or more if an appeal is necessary. There are some advantages and some disadvantages associated with differing percentages within the same case, because the different percentages may affect how the attorney handles the case. For instance, with different percentages it may be to the attorney’s advantage to settle the case later in the proceedings, rather than earlier, or to take the case to trial rather than settle it.

At our Law Firm many of our cases are handled on a contingent fee basis. Regardless of the particular contingent fee arrangement utilized, it is important that the client understand the way it works and its advantages. We can readily provide you with a quote as to the fee which would apply in your case, and we welcome your inquiries. Please feel free to email us at our main office in Texas. In the alternative, call the Law office of your choice.

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Serious and Traumatic Injury Lawyer, Do I have a Case

Serious and Traumatic Injury Lawyer, Do I have a Case

There are many factors that attorneys look at when determining whether you have a good personal injury case. Some of the factors are;(1) who is at fault; (2) the nature and extent of injuries in the case; (3) insurance policies; (4) the nature and extent of property damage if any; and (5)witnesses to the accident. Other factors attorney’s look at are the nature and extent of your communications with the insurance company before you have retained an attorney.personal injury attorneysmore information on this website: @
Insurance companies look at the above factors, along with many other.

Insurance companies know one thing to be true; if a party to a personal injury case presents a claim to them, and is not represented by an attorney, “they have a sucker on their hands.” They know that in the vast majority of cases where a personal injury victim is not represented by a lawyer, that the person will not know what their legal rights are, or what they are legally entitled to collect in a personal injury case.

In these types of situations were you present a claim to insurance company without legal representation, you will most often be presented with a lowball settlement offer, or no settlement offer at all. Do not expect the insurance companies to voluntarily pay you top dollar for your case, or educate you about the benefits that you’re entitled to. It’s just not going to happen.

Most attorneys will handle your personal injury case on a contingency basis, once they have determined that you have a good chance of obtaining a settlement or a judgment in your case. A contingency fee, is a fee that is based upon a percentage of the total settlement or judgment in your case. The alternative to a contingency fee in a personal injury case, is paying a lawyer his hourly fee for representing you which can be anywhere from approximately $200 per hour to $400 per hour or more. Obviously, the contingency fee is used in the vast majority of car accident cases, so that you do not have to pay any money out of your pocket unless the attorney recovers for you.accident injury attorneys

The bottom line is this; each case is different. Our firm has seen cases where an insurance company has taken a rear ender type of car accident the court, challenging the nature and extent of injuries, and the reasonableness of medical bills.

The only way to know for sure if you have a good case, is to contact our office. We will tell you over the phone, whether you have a good case or not. You may also consult with other attorneys as well.

There are many factors involved in selecting a good personal injury attorney; Can you communicate with the attorney? Does your attorney call you back in a timely manner? Will the attorney take your case to trial if necessary? Is your attorney available after hours and on the weekends? Is your attorney competent?

You’ll find that the Law Offices of Norman Gregory Fernandez & Associates, attempts to set itself above the rest. We try to make ourselves available after hours and on the weekends whenever necessary. We make every attempt possible to call our clients back on the same day. We prepare each case as though we were going to trial. We attempt to educate our clients throughout the entire process of prosecuting the case, so that our clients are not in the dark, as to the status of their case. Above all, we are not a settlement mill. We will take your case to trial if that becomes necessary.

It is unethical for any personal injury attorney in this State of California to make any guarantees as to the outcome of your case. Furthermore, since the California State Bar does not certify personal injury as a specialty, it is unethical for any attorney in the state a California to claim that they are specialists in personal injury. Beware of any advertisements from someone claiming to be, or who is in attorney, that holds themselves out to be a specialist in personal injury, or makes any guarantees as to the outcome of your matter.

With that being said, our law firm will make one guarantee, we will fight aggressively on your behalf.

You may call us now for a free consultation on your case or you may submit your case through our online legal form for evaluation by clicking here now. You have nothing to lose except the money you may be entitled to in your case!

If you want to find out more about how we handle cases and the process check out the below links.

For a free telephone consultation call us now or visit this website @

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Mandated Paid Safe Days

Protect employeesThere are many unanticipated, unfair reasons why employees miss work and suffer lost pay, lost opportunities, and even disciplinary action. There are an equal number of emotionally compelling reasons to protect employees in these instances. But does that mean employers should be required to provide protection?

In the cases of serious health conditions for immediate family members, employee disabilities, and society’s military needs, for example, the question has been answered in the affirmative. We have national laws (and in many instances state laws) to address these situations. But what about mandated paid leave for something perhaps more difficult to determine with particularity: instances of domestic violence?

The Seattle City Council has passed a new ordinance requiring among other things that businesses operating within the City and that have 5 or more employees provide paid “safe days” to employees in the City who are victims of domestic violence. The ordinance goes into effect in September 2012.

The amount of paid leave is set on a scale depending on an employer’s size. Smaller employers with 5 to 249 employees are required to grant 56 hours of paid leave. Employers with 250 or more employees must provide 72 hours of paid leave. An employer’s employees are counted for purposes of determining eligibility whether or not the employees work within the City.

An employer with leave policies that provide at least the requisite levels of paid leave generally will satisfy the ordinance if the employer permits use of the leave for instances of domestic violence.

Other urban municipalities are expected to follow Seattle’s lead. But as goes the West Coast, so goes the rest of the nation? Doubtful.

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McKinney Rule for Removal To Federal Court Rejected by Fourth Circuit

The Fourth Circuit has now joined the Sixth, Eighth and Eleventh Circuits in adopting a last served defendant rule to govern the timing of filing a petition for removal from state court to federal court in cases involving multiple defendants. The case is Barbour v. International Union, 1:08-cv-01076-AMD, decided on February 4, 2010.

The statutory authority for removal to federal court is found in 28 U.S.C. § 1446(b) which states:

“The notice of removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within thirty days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.”

The rule does not specifically address a situation where multiple defendants are named and, as almost always occurs, are served on different days. The Fourth Circuit, in the case of McKinney v. Bd. of Tr. of Mayland Cmty. Coll., 955 F.2d 924 (4th Cir. 1992) addressed the situation in a footnote which has become known as the McKinney rule. That footnote read:

” [W]here B is served more than 30 days after A is served, two timing issues can arise, and the law is settled as to each. First, if A petitions for removal within 30 days, the case may be removed, and B can either join in the petition or move for remand. See 28 U.S.C. § 1448. Second, if A does not petition for removal within 30 days, the case may not be removed.”

Some have read the foregoing language as requiring the first served defendant to have filed a petition for removal within thirty days of being served otherwise removal by all later served defendants is barred. While many district courts in the Fourth Circuit contended that the McKinney rule was dicta and not controlling, it has been a source of confusion and uncertainty for practitioners.

The Court’s opinion, written by Judge Agee, discusses the inequity visited upon the later served defendants due to the application of the McKinney rule.

“[N]either § 1446(a) nor § 1446(b) contemplates a scenario in which defendants are served as much as thirty days apart, or in which an unsophisticated defendant is served first and a more sophisticated defendant is served later. In these instances, the second-served defendant should be able to timely remove and persuade the first-served defendant to join the removal. Otherwise, the first-served defendant abridges the second-served defendant’s procedural right to a federal forum. If the first-served defendant makes a conscious choice not to remove, the second-served defendant has to accept that choice. But the second-served defendant should have a reasonable opportunity to consult with the first served defendant regarding possible removal. Consultation is practically impossible if service on the second defendant occurs near the end of or after the first defendant’s thirty-day removal period has expired.”

Fourth Circuit

“[T]he McKinney rule only requires every defendant to act if every preceding defendant acted; if the first-served defendant was dilatory, the remaining defendants cannot act at all.”

The Barbour Court held in conclusion:

“[W]e believe the so-called “McKinney rule” is based on non-binding dicta and the Supreme Court’s opinion in Murphy Brothers counsels a different result. We therefore join the Sixth, Eighth and Eleventh Circuits in adopting the last-served defendant rule and hold that in cases involving multiple defendants, each defendant, once served with formal process, has thirty days to file a notice of removal pursuant to 28 U.S.C. § 1446(b) in which earlier-served defendants may join regardless of whether they have previously filed a notice of removal.”

It appears that practitioners in the Fourth Circuit now have clearer guidance on the timing for removal of a state court action to federal court.

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Fourth Circuit affirms enforceability of “pay-when-paid” clause

pay-when-paidIn its February 19 ruling in Universal Concrete Products Corp. v. Turner Const. Co., the Fourth Circuit once again confirmed the well-established Virginia rule that “pay-when-paid” clauses are enforceable in construction agreements in the absence of clear contractual ambiguity. In Universal Concrete, the Subcontractor unsuccessfully argued to the District Court on summary judgment that an ambiguity existed regarding payment by virtue of language in the AIA contract between the Owner and Turner. The District Court disagreed and the Fourth Circuit affirmed. The Fourth Court found that Turner had no obligation to pay its Subcontractor where the contract had made payment by the Owner an unambiguous condition precedent. The Court further found that clauses in the Owner/Turner contract actually supported rather than defeated this payment timing. In so ruling, the Court reiterated the Virginia policy preference for “freedom to contract” over any paternalistic preference for the perceived weaker contracting party.

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About The Health Care Experience

legal matters facing health care clientsJust as health care is becoming increasingly complex, so are the legal matters facing health care clients. At DurretteCrump, our attorneys provide individualized, innovative counsel regarding general corporate matters including acquisitions and reorganizations, tax matters and tax-exempt issues, real estate and facility construction matters, capital finance and reimbursement issues, and compliance with federal and state health laws. Our attorneys also have extensive experience representing health care clients in litigation and regulatory matters including government investigations, civil and criminal fraud prosecutions and payment disputes.

Kenneth D. McArthur, Jr. is the Chairman of the Health Care Practice Group.

Practice Area Experience

Our experienced legal team has represented a variety of health care industry clients including:

  • Associations
  • Buying groups
  • Durable medical equipment suppliers
  • Emergency services providers
  • Health plan sponsors (self-insured and fully-insured)
  • Health-related businesses
  • Health systems
  • Home health care providers
  • Hospice providers
  • Hospitals
  • Long-term care facilities
  • Managed care organizations
  • Medical practices
  • Nurse practitioners
  • Nurses
  • Pharmacies
  • Pharmacists
  • Physician Assistants
  • Physicians
  • Physical therapists
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Details About Bankruptcy

Bankruptcy LawCurrent economic times are making bankruptcy issues more complex—and more common. Whether you are a business owner, unsecured creditor, bankruptcy trustee or financial institution, our attorneys understand you need strategic solutions and innovative, individualized counsel to guide you through the legal process and help you achieve your goals.

At DurretteCrump, our experienced team of professionals represents individuals and corporations in bankruptcy proceedings including informal workouts, Chapter 11 bankruptcy reorganizations and complex Chapter 7 bankruptcy liquidations for businesses and solo practitioners. We also have experience bringing and defending adversary proceedings for recovery of preferences and determining of discharge ability. Our attorneys regularly appear in the bankruptcy courts of the Eastern and Western Districts of Virginia as well as jurisdictions outside the Commonwealth to properly represent your interests.

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Practice Area Experience


  • Pre-bankruptcy planning and consulting
  • Representation of debtors, creditors, governmental entities, trustees and committees in Chapter 7 and 11 cases
  • Contested matters, adversary proceedings and appellate proceedings
  • Preferential transfer and fraudulent conveyance actions
  • Debtor-in possession financing and leasing
  • Dischargeability contests

Creditors’ Rights and Related Areas

  • Financing, restructuring and acquisition of troubled businesses
  • Commercial, real estate and equipment lending, financing and leasing Secured transactions
  • Accounts receivable, financing and factoring
  • Loan workouts
  • Attachment, repossession, collection, deficiency and detinue (replevin)
  • Foreclosures and liquidations
  • Contests involving negotiable instruments
  • Tax matters
  • Landlord and tenant matters
  • Mechanics’ lien and other lien contests

Bankruptcy issues

Representative Clients & Services

The firm’s lawyers provide regular counseling and representation to a diverse group of clients in many industries in this practice area. Representative clients range from individuals to governmental entities and Fortune 500 companies. The firm often serves as local counsel and receives many conflict referrals from national law firms.

Examples of clients and cases include:

  • Chapter 11 debtor’s counsel in reorganization of real estate development company involving over $40 million in secured claims.
  • Represented 40 creditors holding approximately $40 million in claims in the LandAmerica 1031 Exchange Services, Inc.
  • Represented various creditors including former employees in Circuit City Stores, Inc. Chapter 11.
  • Defended major national mortgage lender in a $5.2 million fraudulent conveyance action brought by Chapter 11 trustee.
  • Represented numerous Chapter 7 trustees in adversary proceedings brought to recover assets for the benefit of creditors.
  • Defended debtor in an adversary proceeding seeking to have $700,000 claim deemed non-dischargeable.
  • Represented various banks’ interests in bankruptcy proceedings including seeking relief from stay from the automatic stay.
  • Chapter 11 debtor’s counsel in reorganization of state-wide mattress retailer.
  • Represented various debtors’ interest in Chapter 7 and 11 in the healthcare, agribusiness, and construction industries.
  • Represented equity holders in the Chapter 11 bankruptcy of the nation’s largest furniture retailer
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Proposed HB 465

Proposed HBA rather surprising bill made early strides before the House this session. The House Courts of Justice Civil Subcommittee recommended approval of HB 465. The Bill as introduced was as follows:

Jury verdict; excess damages; amendment of pleadings. Allows a court, in the event a jury returns a verdict for damages in excess of the amount requested, to amend the pleadings to conform them to the amount awarded and enter a judgment for such damages

Such a bill would have dramatically changed the state of law in Virginia. Not only would the ad damnum have been effectively rendered superfluous, but runaway verdicts could abound under such a rule. On January 27, 2010 the bill was Passed by indefinitely in the Courts of Justice Committee.

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Remora Shows Court on Consistent Path

In a recent decision by the Virginia Supreme Court, the Court continues to limit the assertion of claims for breach of fiduciary duty. The Court in Remora Investments, LLC v. Orr, 277 Va. 316, 673 S.E. 2d 845 (2009) held that managers have no fiduciary duty to members of an LLC; only to the LLC itself. This appears to be a consistent trend the Court has followed in legal malpractice cases beginning with O’Conner v. Bean, 263 Va. 176, 556 S.E. 2d 741 (2002) determining that an attorney malpractice action sounds in contract thereby excluding the ordinary attorney-client relationship claim for breach of fiduciary duty. Recalling the Court’s earlier refusals to “turn every contract into a tort,” the examination of whether a breach of fiduciary duty claim would lie was focused on how the duty was created and to whom the duty was owed. Remora evidences the Court has continued that focus.

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An Example of Administrative Exemption Error

Administrative ExemptionA few posts below, we discussed employer’s periodic over-reliance on the overtime exemption for administrative employees under the Fair Labor Standards Act. As noted, among the four primary exemptions under that act, we have found that employers most frequently misapply this exemption.

A recent federal appeals court decision highlights this point. In Whalen v. J.P. Morgan Chase & Co., the U.S. Court of Appeals for the Second Circuit held that a loan underwriter at J. P. Morgan Chase was not exempt from overtime entitlement under the administrative exemption.

J.P. Morgan Chase maintained that its loan underwriters were covered by this exemption because they met the minimum salary requirement, performed office work directly related to the general business operations, and exercised the requisite discretion and independent judgement. The trial court agreed, but the appeals court reversed that decision.

Central to the appeals court’s decision, the loan underwriter performed his duties according to detailed guidelines provided by the employer. He had no meaningful discretion to depart from those guidelines on his own. Thus, the appeals court said that the loan underwriter exercised no real independent judgment and discretion, which are key components of the exemption. Instead, the appeals court concluded that he was primarily involved in the “production” of the employer.

An employee primarily involved in the employer’s production of goods or its provision of the services it offers, in most cases, will not meet the requirements of the administrative exemption.

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