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LEADING BRAIN INJURY LAW
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Tompkins & Associates
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 9/11/01
| About the
legal system: |
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Lawyers practice their profession under the rules of the adversary system.
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Briefly stated, the adversary system is an American system of laws in which
a judge decides disputes between opposing sides.
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According to a study by the RAND Corporation's
Institute for Civil Justice, there has not been an explosion of personal
injury litigation in recent years.
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Accidents caused more than 83,000 deaths and 71
million injuries in 1995.
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The study found that Americans are paying a "hidden
tax" for up to 90 percent of the
injuries that insurance companies should, but don't pay for.
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It is estimated that the financial burden of the
U.S. economy exceeds $400
billion per year.
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The following is an overview of how the adversary system works.
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| Legal Advocacy: |
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When a lawyer agrees to take a case, he or she becomes the advocate of
the person being represented.
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Because the lawyer is an advocate, he or she is expected to promote the
interests of the client above all others.
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In legal terms the lawyer has a fiduciary responsibility to his or
her clients. In other words, the lawyer is held to standards of highest
trust, with supreme loyalty owed execlusively to the client (except in
extraordinary circumstances such as being told by the client that they
are about to commit a crime).
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| The role of the legal advocate: |
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In personal injury litigation it is generally advisable to seek legal counsel.
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You can bet that insurance companies have lawyers working to protect their
interests, rather than yours.
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You would do better to have your own legal counsel.
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The role of the lawyer in such cases is to exploit the strength of their
client's case while limiting the damage caused by the weaknesses.
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That is, the lawyers attempt to make their client's case look as strong
as possible, and the other side's case as weak as possible, using every
ethical means of persuasion at their command -- regardless of who may really
be right.
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The theory behind the adversary system is that truth is best discovered
by
having lawyers work exclusively for different sides (rather than having
them conduct an impartial investigation).
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Supposedly, the resultant competition between the lawyers acts as stimulus
whereby both sides leave no stone unturned and no closet unopened in their
quest for victory.
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In reality, the system does not always serve the interests of the injured
party, especially when certain factors come into play such as:
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Good cases are lost by inept lawyers.
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A good lawyer can prevent truth from being learned -- in fact, it is frequently
unethical for him or her not to.
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The rich and powerful are frequently able to have their lawyers do things
that the less powerful can not.
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| Settling your injury claim: |
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Most injury claims settle out of court in a complex process of give and
take known as negotiations
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When settlement negotiations fail, an impartial third party (a jury, judge,
referee, arbitrator) make determinations as to what really happened from
the evidence presented by both sides.
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This is called a finding of fact, which is then used by the impartial third
party as a basis for its Orders and Judgments.
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| Settling Short: |
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A critical mistake in many personal injury cases
involves inadequate settlements.
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This is usually happens when an insurance adjuster
convinces the injured party, or his family, to settle for a relatively
small sum, before the full extent of injury or entitlement is clear.
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In the rush to move beyond a painful and unpleasant
event, such as a car crash, many individuals eagerly accept a settlement
that is woefully inadequate.
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They wrongfully believe that much of the distress
that they feel is due to the disruption and irritation of the injury claim.
Only, after it is too late do they realize just how serious their injuries
really were.
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| Don't Sign
or Say Anything Until... |
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If your "friendly" insurance adjuster is on the
scene early on don't sign or say anything until after you've consulted
a knowledgeable attorney.
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A seemingly generous offer to pay all medical
bills can be disarming.
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Don't sign anything until you've discussed it with
your attorney.
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When faced with the prospect of unexpected medical
bills, the promise to pay all the bills might sound wonderful.
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Regardless of how much they try to endear themselves
to you, the "friendly" insurance adjuster is not your friend.
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He or she is not offering to pay medical
bills out of the goodness of his heart, but to avoid paying substantially
more.
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The insurance adjuster's job is to pay as little
as he/she can.
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An early offer to pay bills is tantamount to an
admission that they realize they are responsible to pay far more.
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| Legal Malpractice: |
A claim of legal malpractice must prove two things.
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Number one, you must prove that you would have won your case were it not
for your lawyer's negligence.
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And, secondly, you must prove that your lawyer's actions were negligent.
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READ The
Disclaimer
and Privacy notice before proceeding!
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This
site was created and maintained by:
Brain
Injury Resource Center
PO Box 84151
Seattle, WA 98124-5451
206-621-8558
http://www.headinjury.org
brain@headinjury.org |
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