Q. What Is a Contingency Fee?
ANSWER: A contingency fee allows you to use the services of an experienced attorney without paying a hefty deposit or hourly fees. The attorney is paid a percentage out of the results of the case. In some contingency fee agreements, if no money is recovered in the case, you pay nothing to the attorney.
The Professional Code of Ethics requires that all contingency fee agreements be in writing, so read them carefully. Some lawyers have a modified contingency agreement that requires a client to pay costs (expenses incurred, not fees) whether or not any money is actually recovered, or even an hourly fee under certain circumstances. Some will apply the fee to medical payment benefits or try to charge you extra to negotiate payment of liens. I do not follow these types of practices in my office.
Q. What If the Other Driver Was Uninsured?
ANSWER: It is the person who caused your injury, not their insurance company, who is responsible to you for any damages you suffer. If they are not insured, you can bring a claim or file a lawsuit against them and recover money from them for your damages.
If you were hurt in an automobile accident, you may have “Uninsured Motorist” (UM) coverage. This allows you to make a claim to your own insurance company for your damages. The law requires every insurance company to offer this coverage to you, but you can decline it (it does cost extra, although it is relatively inexpensive), But don’t be fooled. Even though you are dealing with your own insurance company, you will still want my help. Even your insurance company is only interested in paying out as little as possible to settle your claim.
Q. What Is Medical Payment Coverage?
ANSWER: In an automobile collision (or if you are a pedestrian hit by a car), this kind of insurance coverage may provide payment for medical expenses. It is an extra coverage you can select and for which you pay an additional premium. If you have this on your policy, it covers you and your passengers regardless of who is at fault. You pick the amount of coverage you want. It is usually cheap, and I recommend everyone have it. Most policies have a “pay back” provision: If you collect money for your medical bills from the other side, you have to pay back your insurance company for what they paid out. Usually, a good attorney can negotiate a reduction for you.
Q. Do I Have to File a Lawsuit?
ANSWER: In California, most personal injury claimants have two years to file a lawsuit for injury claims, although any claims filed against the state government or a public entity must be filed within 180 days. However, effective settlement planning begins the day of the injury, so don’t wait to call my office. In many cases, it is wise to wait until we have made at least one serious attempt to settle a claim before filing a lawsuit. Informal settlement saves money (no filing fees or court costs to pay back), brings quicker results, and minimizes the client’s inconvenience. It can often result in a better outcome for the client. In many cases, I recommend that we wait to attempt settlement until all treatment is complete. In some cases, for example when there is a permanent injury, I may suggest that we act sooner. However, when to settle or file a lawsuit is always a decision my clients make, with my help and advice, of course.
Q. My Claims Adjuster Says I Don’t Need a Lawyer
ANSWER: The first thing you should ask yourself is: Why is the claims adjuster saying that? All claims adjusters work for insurance companies. Their duty is to the company and its shareholders, not to you. Their job is to control how much money is paid out in claims. The less they have to pay, the more money the company makes. What do you think gets a claims adjuster a promotion or raise faster: saving the company money or making you happy?
My first question for you is, why are you talking to them? I offer a free, no obligation consultation. Come get free advice. After that, if you still want to talk to an adjuster yourself, at least you will be prepared. Remember, they are trained professionals, whose job it is to pay you as little as possible for the release of your claim.
Recently, another state’s appellate court fined a major insurance company for giving similar advice to claimants. There was even a “hidden camera” news report. In the report, the adjuster made several statements that were patently false to persuade the claimant to not hire a lawyer.
Not all adjusters will employ these tactics, but there is an easy way to tell who you are dealing with. Just ask the adjuster to put any promise he makes to you in writing. If you get it, then you can rely on it. If you don’t get it, please come see me.
Q. How Do I Pick a Good Lawyer?
ANSWER: As in most professions, reputation is everything. The best way to find a lawyer is by referral from a friend or someone you trust, like a doctor or other professional. You may also be able to find some very useful client feedback and reviews online.
With or without a referral, you should meet with any potential lawyer. If they send a non-lawyer out to you, or if you can’t meet with the actual attorney, find someone else who thinks you are important enough to spend time with.
In the meeting, ask a lot of questions about your claim, attorney’s fees, and the attorney’s experience. If you are treated with respect and get straightforward, clear answers, you will probably be treated that way throughout the case. Good attorneys do not guarantee specific results, but will tell you the strong and weak points of your case. The staff in a law office are often involved and handle many tasks in a case, so meet them too.
With injury cases, I give people an honest assessment of their claim. If a potential client and I don’t agree about the value of their case, it is best we find out right away.
Q. What Is a Will?
ANSWER: A simple will, or "last will and testament," is a legal document that declares your desires for you, your assets, and your family upon your death. A will makes sure your property is given to the people you want, and allows you to nominate whom you want to become guardians of your minor children. It has no affect during your life, but only comes into play at your death. Even with a will, your estate is likely to go through probate.
Q. What Is Probate?
ANSWER: Probate is the court-supervised process of taking property owned by a person who has died (the decedent) and granting ownership to another. For example, the transfer of ownership of real property (land) requires that the owner sign a deed granting his title to another. Because a deceased person can’t sign a deed, the court must intervene. Except in limited circumstances, a court order is required to change title/ownership from the decedent to a living person. Such orders are issued by a court in probate.
Generally, a will must be filed with the court when the will’s maker dies. Unless the estate is very small, probate is required to give effect to the will. Probate can be expensive and time consuming, with attorney fees and court costs running as high as four to six percent of the gross value of the estate – more in complicated estates. An executor can also claim a similar fee. The executor of the will gathers all the assets of the decedent and, usually with a lawyer’s help, files an accounting with the court telling the court what the assets are and where they should go. Probate can be avoided by planning your estate using a trust.
Q. What Is a Trust?
ANSWER: A Trust is an entity created on paper, which can act like a person under the law, owning, managing and disposing of property. For estate planning, we usually create revocable trusts (or living trusts, which usually means the same thing). Revocable Trusts can be easily amended or changed or even abolished by the creator (the trustor), but there are many other types of trusts, including irrevocable trusts, which you cannot change but generally offer some tax-saving benefits.
The primary purpose for a revocable trust is that you transfer your property to a trust during your life so that you legally no longer own anything. When you die, there is nothing to probate, so you avoid all of those expenses. The trust survives your death, and a new trustee, a manager whom you appointed when you created the trust, takes over and transfers the property to people as you have instructed (the beneficiaries). The trustee would, for example, be able to sign a deed transferring your house to whomever you designated when you created the trust.
During your lifetime, you are the trustor, the trustee, and the beneficiary, so you still get to live in your house, spend your money, and pretty much live just as you did before you created the trust.
Q. What Is a Power of Attorney?
ANSWER: Power of attorney is the power and authority to act in your place. The two main kinds of powers of attorney are power of attorney for financial matters and power of attorney for health care.
With a power of attorney for financial matters, you (the principal) can sign a document giving your agent authority to sign your name to all kinds of things that affect your material goods (real and personal property) such as deeds and checks. The document spells out what the agent can and can’t do. If written correctly, it can still work even if you become incapacitated. However, it ceases upon the death of the principal, so you can’t use it in lieu of a will or trust.
With a power of attorney for health care, you can designate an agent to make health care decisions for you if you are unable to speak for yourself. You can also do many more things with this document, such as authorize an autopsy and donate organs. However, the main objective is telling your agent what you want done if you face serious health issues. A power of attorney for health care does not have anything to do with your material goods.
Q. What Is Joint Tenancy?
ANSWER: Joint Tenancy is sharing ownership of property, such as a house or a bank account. Usually, two people who each contribute half the money buy property in joint tenancy.
However, as an estate planning tool, I believe it is generally a terrible idea. It is cheap and easy, but it can also cause a lot of trouble. Any time you “put your kid's name on” something, you are making a gift of it, or at least half of it, to your child. Your child can lawfully take it, sell it, borrow against it, and if they owe anyone money, that creditor can come get it (think auto accident, credit card company, bankruptcy, etc.) There can also be terrible tax consequences. Like everything, there are times joint tenancy may make sense, but speak to me first about your options.
Q. What About Trust Kits or Trust Companies and Funding?
ANSWER: Living Trusts have become very popular, primarily because of the cost savings in avoiding probate. Because of this, there are a lot of people trying to make money off the trend.
There are a variety of “kits” on the market wherein you write your own trust by connecting the dots in a step by step process outlined in a manual. They usually provide generic forms, which you modify by following instructions. The main attraction is that it is cheaper than hiring a lawyer to determine your specific needs and write documents for you. The quality of the kit depends on who wrote it. To me, it seems like one of those guides on how to paint your own car in a weekend. You can do it, but unless you have some experience or training to guide you, it’s going to be an adventure and probably a mess. With the paint job, you will know how bad it is on Monday. With the trust kit, you won’t find out until it’s time to use it – when you are gone.
There are also a number of companies that sell trusts. They hold free seminars and a presenter – sometimes a lawyer – explains trusts and offers you a special deal if you sign up at the seminar. You sign up, and a salesman – usually not a lawyer – comes to your home and helps you fill in the blanks on forms they have prepared in advance.
The problem with both of these methods for obtaining a trust is they usually leave the funding process to you. Funding is the process by which your assets are transferred from your name into the name of the trust. Remember: the trust owns your property for you. Property owned by the trust is not in your estate, and so avoids probate. If the trust is not properly funded, the property you still own at your death ends up in probate. Since the whole point of buying a trust was to avoid probate, you have paid for a fancy document but missed the point.
Q. What Makes a Good Attorney?
ANSWER: Above all else, a good attorney puts his clients’ interests first. A good lawyer is dedicated to doing what is right and best for the client. When a lawyer agrees to represent a client, the client must put his or her trust in the lawyer. In return, the lawyer must use all of his skill and talent to help the client. Sometimes it just means hard work. Other times it means telling them they are wasting their time and their money – that based upon the facts and the law you can’t get them what they want. Supreme Court Justice Louis Brandeis once said, “Half a good lawyer’s job is telling his clients to just stop.” In short, being a good lawyer means doing the right thing, and doing it well. It may sound corny or even a bit unreal, but as much as I like to win, my real pride comes in doing just that.