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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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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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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Social Media: Who Owns The Rights?

Social MediaIt is no surprise that companies today actively encourage their employees to engage in marketing and business development through use of social media outlets like Twitter and LinkedIn. But when an employee decides or is asked to leave the company, a dispute can, and with increasing frequency likely will, ensue over who owns these social media accounts. They were created and developed on company time with company resources, seemingly making them a company asset. The followers (or connections in the case of LinkedIn) of such accounts are, however, unique to the individual employee. They follow the tweets of the employee typically without regard for the identity of that employee’s company. It is these followers and connections that are the real essence of social media from a marketing perspective. So, who gets the rights to these accounts? Are they an asset belonging to the company simply because the company provided the capital? Or are they really the personal goodwill of the individual employee? These issues are at the center of two unrelated lawsuits, filed only days apart, now pending in the federal courts of Pennsylvania and California.

In the Pennsylvania case, Linda Eagle filed suit against her former company, Edcomm, Inc., and a group of its new owners and employees for a variety of business torts stemming from being locked out of her LinkedIn account after she was fired. Eagle claims Edcomm hijacked her LinkedIn account, changing the password and account profile to display the new CEO’s name and picture, but maintaining Eagle’s honors, awards, recommendations and connections. Defendants responded with a counterclaim against Eagle also asserting a variety of business tort claims, including conversion, misappropriation, violation of the Pennsylvania Unfair Trade Secrets Act, tortious interference with business, and numerous others. Eagle moved to dismiss the counterclaim. As it relates to the LinkedIn account, the federal court in Pennsylvania ruled that the LinkedIn account connections are not trade secrets under the Pennsylvania statute, but declined to dismiss the common law count of misappropriation of an idea. According to the court, there was a dispute of fact regarding the role Edcomm versus Eagle played in developing and maintaining the LinkedIn account that influenced the viability of misappropriation claim. Eagle v. Morgan, Civil Action No. 11-4303, 2011 U.S. Dist. LEXIS 147247 (E.D. Pa. Dec. 22, 2011).

Owns Rights

The California case is the reverse of Eagle. Noah Kravitz was employed by PhoneDog, a mobile phone review site. While there, he created a Twitter account gradually amassing nearly 17,000 followers. Kravitz decided to leave PhoneDog and changed his Twitter handle from @PhoneDog_Noah to @noahkravitz. PhoneDog sued Kravitz for misappropriation of trade secrets, conversion and other business torts, all arising out of his departure with the Twitter account. Kravitz’s followers were likened by PhoneDog to a customer list since PhoneDog requires its employees to tweet links to PhoneDog’s website in hopes of directing traffic to the site and thereby create advertising revenue. Unlike Eagle, the Kravitz court has declined to dismiss the trade secrets and conversion counts on motion to dismiss finding the claims to be adequately pled. In another order entered on January 30, the Kravitz court also refused to dismiss PhoneDog’s intentional interference and negligent interference with prospective economic advantage claims. The court acknowledged Kravitz’s concern that Twitter followers may not be “economic relationships” for purposes of these business tort claims, but declined to rule on this issue. The court held that because PhoneDog had also pled economic relationships with its advertisers, the claim was adequately pled and the issue regarding the status of the Twitter followers was one more appropriately left for summary judgment. PhoneDog LLC v. Kravitz, 11-cv-03474 MEJ (N.D. Calif.).

The outcome in both these cases will be instructive to businesses hoping to maintain ownership of their social media accounts. One thing is already clear, however. The more engaged the company is with developing and maintaining the content for such accounts and the more a company does to track revenue derived from such accounts, the better the company’s chances are for having a viable claim to the accounts later.

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Will Spear Stick?

Washington Airport AuthorityIn the months following Judge Chamblin’s August 2009 ruling in Spear v. Metropolitan Washington Airports Authority, defense counsel across the Commonwealth jumped on the Spear bandwagon, arguing as the Court ruled in Spear that changes in suits re-filed by a plaintiff after taking a voluntary nonsuit, such as to the ad damnum, create a different action and the plaintiff accordingly loses the benefit of the tolling of the statute of limitations provided by Va. Code § 8.01-229(E)(3). But so far, no other court has followed Spear. Now, the Supreme Court of Virginia is poised on February 9 to review the petition for appeal in Spear. The question on every defense counsel’s mind is can this decision possibly hold up?

In Spear, plaintiff claimed she was injured in April 2005 at Washington Dulles International Airport while being transported by wheelchair. Plaintiff filed suit in April 2007, within days of the applicable two year statute of limitations, but took a voluntary nonsuit in October 2008. When plaintiff re-filed her action in March 2009, with an increased ad damnum from $350,000 to $500,000, defense counsel argued the claim was time-barred because the change in the ad damnum created a different action. Judge Chamblin agreed.

Adopting a strict reading of Dalloul v. Agbey, 255 Va. 511 (1998), Judge Chamblin held that the “action” that was nonsuited for purposes of § 8.01-229(E)(3) is the action that was pending at the time the nonsuit order was entered and it is that “action that must be recommenced within the six-month period in order for the tolling provision to apply.” According to the court, because a plaintiff’s recovery is limited by its ad damnum (but see post above on legislation considered by the General Assembly that would have dramatically changed this rule) and because Va. Code § 8.01-379.1 requires disclosure of plaintiff’s damages to the jury, “the amount sued for is just as much a component of an action as the operative facts alleged and the claims made by a plaintiff.” For these reasons, Judge Chamblin ruled that plaintiff’s March 2009 complaint was not the same action as the April 2007 complaint and the claims were therefore not tolled by Va. Code § 8.01-229. The new complaint was dismissed as time-barred.

While the Spear court ostensibly considered the meaning of “action” for purposes of Va. Code § 8.01-380, it overlooked a substantial body of Virginia Supreme Court precedent defining and discussing the term “cause of action” in other related contexts. Virtually every other court reviewing similar nonsuit tolling issues under § 8.01-229(E)(3) has done just this. (See, e.g., Vaughan v. The First Liberty Ins. Corp., Civil Action No. 3:09cv364 (E.D. Va. Nov. 13, 2009); O’Hearn v. Mawyer, Case No. CL09-00442 (Rockingham Cty. Jan. 7, 2010) (collecting cases)). Had the Spear court also done so, the result may have been far different.

The term “cause of action” has been considered repeatedly by the Supreme Court of Virginia in the closely analogous context of relation back of amendments (that is, whether an amended pleading relates back to the original filing date for purposes of statute of limitations), as subsequently codified at Va. Code § 8.01-6.1. In this setting, it is clear the Court views a “cause of action” broadly to encompass “a set of operative facts which, under the substantive law, may give rise to a right of action.” (See, e.g., Roller v. Basic Constr. Co., 238 Va. 321 (1989)). It is not any one single legal theory or basis of recovery. Where an amended pleading “only varie[s] the mode of demanding the same thing – that is, damages done the same property by the same causes”, then it does not set forth a new cause of action. (Vines v. Branch, 244 Va. 185 (1992), quoting, New River Min. Co. v. Painter, 100 Va. 507 (1902)).

Likewise, while the goal of res judicata is to preclude, rather than preserve all claims that could or should have been litigated, the definition of “cause of action” still remains the same. Rule 1:6 of the Rules of the Supreme Court of Virginia again defines “cause of action” broadly to be a “claim for relief arising from identified conduct, a transaction, or an occurrence”, regardless of the legal theory asserted or the legal elements or evidence necessary. A “cause of action” is clearly intended by the Supreme Court to be an all-encompassing concept.

This expansive definition of “cause of action”, particularly when coupled with the additional rule that “tolling statute[s] . . . ‘are highly remedial and should be liberally construed in furtherance of their purposes, and are not to be frittered away by any narrow construction,’” (Vaughan v. The First Liberty Ins. Corp., quoting, Baker v. Zirkle, 226 Va. 7 (1983)), leaves only one possible conclusion. Spear should have been decided the other way. It is difficult to conceive how the mere demand for $150,000 in additional compensatory damages would not satisfy the test for the same “cause of action” within the meaning of §§ 8.01-229(E)(3) and 380.

To be sure, there is authority for the proposition that the recovery sought is material to the analysis of “cause of action”, just as Judge Chamblin noted. For example, in Vines, the Court held that “[w]here an amendment . . . makes a new or different demand not introduced in the original [complaint] . . .. the amended action becomes the equivalent of a different suit and the statute continues to run until the amendment is filed.” Under this caselaw, to the extent the increase in damages sought by plaintiff in Spear in the amended pleading actually arose out of some additional category of damages not previously requested, then perhaps the result in Spear is correct. However, there is nothing in the Spear opinion which would support this conclusion.

Will Spear Stick

The ultimate irony is that had plaintiff’s counsel in Spear anticipated this novel nonsuit challenge, it could have easily re-filed a complaint that was identical to the April 2007 version, and then simply moved to increase the ad damnum thereafter. As Judge Chamblin expressly acknowledged, such motions are routinely made “as they must be”, and granted by the court, where plaintiff believes and demonstrates damages may exceed the amount originally pled.

From the defense perspective, the Spear rule is almost too good to be true since nearly every case re-filed after a nonsuit contains some change in allegations or claims. Pre-Spear, it could be argued that it was a breach of the standard of care for plaintiff’s counsel to not tweak some aspect of the complaint to reflect information acquired during or subsequent to the litigation of the first complaint. But, by all indications, plaintiff’s counsel should not be hasty in adjusting nonsuit re-filing practices since Spear may be short-lived.

Of course, if the Supreme Court of Virginia declines review of Spear, the state of the law of nonsuits will be left in doubt and the circuit courts of this Commonwealth can be absolutely assured of one thing: they will routinely see Spear-based pleas in bar. Indeed, defense counsel may now well be required to file a Spear like challenge in order to satisfy its standard of care.

Certainty is needed for both sides of the bar on this issue.

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Changes to Virginia Corporation Annual Registration Fees

Virginia CorporationBeginning July 1, 2010, annual registration payments made by a corporation will be applied first to any previously unpaid annual registration fees and/or penalties and then to currently assessed fees. This change is a result of an amendment to the Code of Virginia. Prior to the amendment, registration fee payments were applied first to currently assessed fees and then to unpaid penalties.

As a result, a termination of corporate existence may occur notwithstanding a Virginia corporation’s payment of current registration fees. See the Virginia State Corporation Commission’s website for more details.

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