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Attorney fees may be charged on contingency, hourly, or for a flat fee. Most fees are set by attorney-client contracts.

Marcus Bazzell Boston | Sep 30, 2019

When Can A Medical Malpractice Case Settle?

When can a medical malpractice case settle? This may sound like a simple question, but you will not believe how much confusion can arise out of this subject. Although this article will talk about when can a medical malpractice case settle, the same concepts will hold true for birth injury cases, another form of medical malpractice. As I always like to remind you, if you have specific questions regarding the settlement of your specific case, be sure to talk with your attorney about your facts. The information that I am providing in this article is general in nature and is not geared towards specific fact scenarios. WHEN CAN A MEDICAL MALPRACTICE CASE SETTLE? In general, a medical malpractice case can settle at anytime before a jury renders its verdict, if a jury trial is elected. So, this means that there is no hard-fast time that is set in stone for these cases to resolve themselves. A case can settle pretrial in some settings. By pretrial what I mean is before a lawsuit is even filed. Sometimes, depending on the facts and circumstances, the parties will work out an agreement before the filing of a lawsuit. In other instances, this will not be the case. If the case cannot settle before the lawsuit is filed, it might be settled after suit. How this can happen is during the discovery phase, both sides of the case are generally in touch with each other and the lines of communication might reflect the opportunity to settle. In addition, in some jurisdictions the court may order each party to mediate the case. During mediation, the case might settle during this process. Sometimes however, the mediation may breakdown with no agreement, but a little later down the line the case settles out. Please remember, that even though a lot of medical malpractice cases settle, some of them must be decided by a jury or other factfinder. As with may things in the law, and life for that matter, there are no guarantees. WHO DECIDES IF A CASE SETTLES OR GOES TO TRIAL? Another important issues which stems from this topic is who makes the final call as to whether a case settles or goes to trial? If you answered the client, you would be right. Some people think that it is the attorney who makes the call as to settlement or trial. The attorney does play an important role in the process by explaining the issues to the client so that they can make the best decisions as to their case. A good client is going to be engaging with their attorney and listen to the pros and the cons of the case. Doing this will allow the client to get a feel for the offer being made by the defense. Where some clients can get into trouble is when they feel that they no longer need the advice of their attorney and go at the settlement process all wrong. This can be from starting at a too big of a number during negotiations, to glossing over the weaknesses of the case. Marcus B. Boston, Esq. Boston Law Group, LLC 2 Wisconsin Circle, Suite 700 Chevy Chase, Maryland 20815 301-850-4832 1-833-4 BABY HELP

Jaime Enrique Suarez | May 2, 2019

How Does a Contingency Fee Agreement Work in Personal Injury Cases?

What Should Be Included in a Contingency Fee Agreement in Florida? A contingency fee agreement contract must be in writing and it must be signed by the client and the attorney. A copy of the written contract must always be furnished to the client. If any other attorney or law firm is to participate in the contingent fee, they must obtain the written consent of the client and execute the contingent fee contract. Each participating lawyer shall assume joint legal responsibility to the client for the performance of the legal work as if each were partners. These requirements will prevent an attorney from accepting a case from a client and then referring it to another attorney to perform the actual work pursuant to a fee-splitting agreement between the attorneys without the client’s knowledge and consent. The written contract must specify the method by which the fee is to be determined. This requires disclosure of the percentages that the lawyer will collect as his fee if the case settles or is litigated, and if appeals are pursued. In addition, the contract must state what litigation and other expenses are to be deducted from the recovery and whether these expenses will be deducted before or after the contingent fee is calculated. What Rights do Clients Have Under a Contingency Fee Agreement in Florida? A contingency fee agreement contract must provide a statement that outlines some of the rights clients are entitled to. It must also state that the client read and understands the statements and that the client has received a copy. In Florida, clients entering into a contingency fee agreement have the right to: • Cancel the contract within three business days of the date the contract is signed • Question the attorney about his education, training, and experience • Obtain information from the lawyer concerning his actual experience in handling legal matters similar to the client’s • Know whether the attorney intends to handle the case alone or whether other lawyers will assist him. If applicable, at least one lawyer from each firm that will be involved in representing the client must also sign the contract and the attorney must also discuss with the client the fee-sharing arrangement he has with the other attorneys that he refers the case to or who will assist him in the legal work. If the attorney decides to refer the case to another attorney or seek assistance from other attorneys after the fee contract is signed, the client should sign another contract with all of the attorneys who will be involved. The client will have the right to consult with each attorney working on his case. What is the Percentage of Recovery That an Attorney May Charge in Florida? As a general rule, the attorney and client may structure their contingent fee agreement as they choose. But Florida law sets limits for the percentage of recovery that an attorney may charge. If the agreement exceeds those limits, it will be presumed to be excessive unless prior court approval is obtained to allow the attorney to charge more than the presumptive limit. Different limits are established for different stages of the litigation. Through the time of filing an answer or a demand for appointment of arbitrators, the contract may provide for a recovery of 33 1/3% up to 1 million dollars. For any portion of a recovery between $ 1million and $2million, the attorney may collect 30% and for any portion exceeding 2 million dollars the attorney may collect 20%. If a recovery is obtained from the time of filing an answer or demand for appointment of arbitrators through the entry of judgment, the attorney may recover 40% of any recovery up to $1 million. For any recovery exceeding $1 million, the attorney may recover 30% of any portion between $1 and $2 million and 20% of any portion exceeding $2 million.

Debra L. Feit | Apr 5, 2019

Attorney's Fees in Florida

How can you get prevailing party attorney's fees? You want to sue someone in Florida. Legal actions are expensive. How can you get the court to award you attorney's fees and costs in litigation? First, there are two ways to get attorney's fees and costs in Florida: by statute or by contract. Absent either of those two provisions, you pay to play! This is the so called American Rule. By Statute Law makers will often include an attorney's fees provision in a statute as a penalty for the party held liable. For example, where the cause of action falls under the condominium statutes, homeowner's association statues, or co-op statutes, the legislature has included a provision for prevailing party attorney's fees. By Contract Where the parties enter into a contract, the parties are free to include a term that provides prevailing party fees for the prevailing party who is forced to bring or defend an action under the contract, most usually for breach of contract. The language that is included in this provision must be specifically worded to provide for (or not provide for) attorney's fees after judgment is entered in a case. The parties to a contract must decide if fees will be available for the determination of the fees and for any appeals that may be taken by either party. Sometimes it is possible to win the case and fees, only to go deep into your pocket for the rest of the litigation. Pleading fees is mandatory Failure to plead fees will be fatal to a claim for attorney's fees. Florida case law has developed the proper procedure for pleading fees in both the complaint and in the answer and counterclaim. Including a claim for attorney's fees, but doing so in the wrong manner, will also be fatal to any claim for attorney's fees. Protecting your claim for prevailing party attorney's fees is vital to your claim. Make sure it is properly done! Other ways to make a claim for Attorney's Fees If you have a claim that does not give you a right to make a claim for prevailing party attorney's fees, there may be other ways to get the attorney's fees. For example, an offer of judgment or offer of settlement includes an award of attorney's fees if the offer is properly made and rejected so long as other conditions are met at trial. Another example is Florida Statute 57.105, which awards attorney's fees to the prevailing party when an action is considered frivolous. This is a powerful tool that must be used properly. Litigants are urged to consider all possible methods of an award of attorney's fees if they are forced to litigate or defend.

Carina Castaneda | Apr 1, 2019

Disparity and Ability to Pay Attorney Fees after the Morton Case

Launa Morton v. David Morton (27 Cal.App.5th 1025: September 26, 2018) Family Code (FC) section 2030, subdivision (a)(2) uses the term “disparity.” This provision specifically states that at a trial court must make a finding on “whether there is a disparity in access to funds to retain counsel.” The common and ordinary meaning of the word “disparity” as referenced in the Launa Morton v. David Morton (27 Cal.App.5th 1025: September 26, 2018), case is inequality (a difference in quantity or quality between two or more things.) The court is statutorily required to make a finding and the court in Morton failed to comply with the mandatory provision of FC 2030. The wife in Morton also cited the court’s failure to make an ability-to-pay analysis, which is related to another question for which an explicit finding is required. FC 2030 requires the court to make an additional determination if the husband “is able to pay for legal representation for both parties.” FC 2030, upon the mandatory finding that demonstrate disparity in access and ability to pay, the court SHALL make an order awarding attorney’s fees and costs.” In the Morton case, the appellate court found that the record was sufficient to show that “a disparity in access to funds to retain counsel” exits. The court further reasoned that while both parties have access to funds resulting from the division of the community assets, the husband has access to funds generated by (1) his employment (wife does not work) and (2) his ownership of one-half of Huddleston Crane Services, Inc. (a separate property). Disparity in Access to Funds The court explicitly analyzes the sources of various income available for the husband while in contrast, as the appellate court distinguishes, the wife’s access to funds is only limited to her division of community assets. Her income from employment was minimal before she stopped working as a courier and she does not own a revenue generating business. Accordingly, the record compels a finding of a disparity in access to funds for retaining and paying counsel. Disparity in the Ability to Pay Additionally, the court held that the record demonstrates that the husband “is able to pay for legal representation of both parties. The court explained in detail the disparity in the ability to pay for legal representation. In the Morton case, the court established this by noting the disparity in the parties’ wages and salaries and Launa’s lack of rental income or other business income. The court further reasoned, “the fact that Launa holds assets from the division of community property that are sufficient to cover her attorney fees does not negate the existence of the significant disparity in the ability to pay for legal representation. (FC 2032 subdivision (b).) The long-term financial consequences of requiring Launa to liquidate those assets to pay for attorney fees—assets which, in contrast to David, she does not have the means to replenish—must be evaluated in determining the ability to pay.

Bill Powers | Mar 11, 2019

Uniform Premarital Agreement Act. Chapter 52B - NCGA

Uniform Premarital Agreement Act. Chapter 52B - NCGA § 52B-2. Definitions. As used in this Chapter: (1) "Premarital agreement" means an agreement between prospective spouses made in contemplation of marriage and to be effective upon marriage. (2) "Property" means an interest, present or future, legal or equitable, vested or contingent, in real or personal property, including income and earnings. (1987, c. 473, s. 1.) § 52B-3. Formalities. A premarital agreement must be in writing and signed by both parties. It is enforceable without consideration. (1987, c. 473, s. 1.) § 52B-4. Content. (a) Parties to a premarital agreement may contract with respect to: (1) The rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located; (2) The right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property; (3) The disposition of property upon separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event; (4) The modification or elimination of spousal support; (5) The making of a will, trust, or other arrangement to carry out the provisions of the agreement; (6) The ownership rights in and disposition of the death benefit from a life insurance policy; (7) The choice of law governing the construction of the agreement; and (8) Any other matter, including their personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty. (b) The right of a child to support may not be adversely affected by a premarital agreement. (1987, c. 473, s. 1.) Uniform Premarital Agreement Act. Chapter 52B - NCGA § 52B-5. Effect of marriage. A premarital agreement becomes effective upon marriage. (1987, c. 473, s. 1.) § 52B-6. Amendment, revocation. NC General Statutes - Chapter 52B 2 After marriage, a premarital agreement may be amended or revoked only by a written agreement signed by the parties. The amended agreement or the revocation is enforceable without consideration. (1987, c. 473, s. 1.) § 52B-7. Enforcement. (a) A premarital agreement is not enforceable if the party against whom enforcement is sought proves that: (1) That party did not execute the agreement voluntarily; or (2) The agreement was unconscionable when it was executed and, before execution of the agreement, that party: a. Was not provided a fair and reasonable disclosure of the property or financial obligations of the other party; b. Did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided; and c. Did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party. (b) If a provision of a premarital agreement modifies or eliminates spousal support and that modification or elimination causes one party to the agreement to be eligible for support under a program of public assistance at the time of separation or marital dissolution, a court, notwithstanding the terms of the agreement, may require the other party to provide support to the extent necessary to avoid that eligibility. Before the court orders support under this subsection, the court must find that the party for whom support is ordered is a dependent spouse, as defined by G.S. 50-16.1A, and that the requirements of G.S. 50-16.2A regarding postseparation support or G.S. 50-16.3A regarding alimony have been met. (c) An issue of unconscionability of a premarital agreement shall be decided by the court as a matter of law. (1987, c. 473, s. 1; 1995, c. 319, s. 11; 1997-456, s. 27.) § 52B-8. Enforcement: void marriage. If a marriage is determined to be void, an agreement that would otherwise have been a premarital agreement is enforceable only to the extent necessary to avoid an inequitable result. (1987, c. 473, s. 1.) Uniform Premarital Agreement Act. Chapter 52B - NCGA § 52B-9. Limitation of actions. Any statute of limitations applicable to an action asserting a claim for relief under a premarital agreement is tolled during the marriage of the parties to the agreement. However, equitable defenses limiting the time for enforcement, including laches and estoppel, are available to either party. (1987, c. 473, s. 1.) § 52B-10. Application and construction. The Uniform Premarital Agreement Act shall be applied and construed to effectuate its general purpose to make uniform among the states enacting it, the law on premarital agreements. (1987, c. 473, s. 1.) NC General Statutes - Chapter 52B 3 § 52B-11. Severability. If any provision of this Chapter or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the Chapter which can be given effect without the invalid provision or application, and to this end the provisions of this act are severable. (1987, c. 473, s. 1.) Uniform Premarital Agreement Act. Chapter 52B - NCGA

Peter Joseph Lamont | Feb 19, 2019

Why Won't an Attorney Take My Case on a Contingency Fee Basis?

Introduction Through my Understanding the Law podcast and video series I attempt to answer general questions about legal and business matters for subscribers. One of the most frequent questions I receive is, "Why won't an attorney take my case on a contingency basis?" People often say, "I see it on the TV or Internet all the time that an attorney will accept a contingency fee, but why won't an attorney accept my case?" In this post, I am going to explain why an attorney may refuse to accept a contingency fee arrangement. If you have ever watched television or listened to the radio, you have most certainly heard an attorney (or "attorney spokesperson" aka hired actor) explain in an advertisement or commercial that "you pay no fees unless we recover for you." Ring any bells? How about this one, "we don't get paid unless you get paid?" Or, "No fees unless we recover for you?" When people see or hear these advertisements, they make a few assumptions: (1) every lawyer works on a contingency basis; (2) a contingency fee arrangement is applicable to every type of legal issue; and/or (3) if a lawyer accepts their case on a contingency basis, they will not have to spend one penny unless the lawyer recovers for them. Ok, it time to debunk some myths. Contingency Fee Arrangements in Personal Injury Cases The reality is that most lawyers do not work on a contingency basis. Typically, contingency fee arrangements are most often utilized by personal injury lawyers. Here is how it works. A personal injury attorney will screen each potential case that comes into his or her office to determine what the projected value of the claim is. If liability is too difficult to prove or the injuries are not significant enough, the lawyer will not accept the case. When a personal injury lawyer accepts a case, he is essentially investing in your injuries. He believes that by taking approximately 33% of the projected recovery the case will be profitable. The lawyer is wagering that the money he could recover will be greater than the amount of time needed to handle the case. A contingency arrangement works in personal injury cases because so long as the client is injured and there is some arguable liability, the chances are that there will be some level of monetary recovery. Basically, the attorney believes that he will be paid for his efforts because he is reasonably sure that the injury has a recoverable value. We will discuss in a future post, how attorneys "value" personal injury cases. Contingency Fee Arrangements Misrepresentations As an aside, when you see or hear those contingency fee advertisements make sure you listen carefully. Most of the ads say things like, "we don't get a fee unless we recover", or "you don't pay fees . . . " The use of the word "fee" is significant because what you are not hearing is that you will be responsible for paying actual costs. Often, personal injury lawyers fail to mention that you are responsible for costs. Other times, their advertisements are simply misleading. Let's talk about covering costs. If your personal injury attorney accepts your case on a contingency basis and files a complaint, he will pass that filing fee along to you. Let's say that throughout your personal injury case the lawyer fronts or pays costs on your behalf that add up to $3,500, and your case settles for $10,000. Here is how it would typically work out. When the $10,000 arrives, the attorney immediately takes out $3,500 to cover the expenses, leaving a balance of $6,500. The lawyer then takes his 33.3% of $2,164.50 and send the balance of $4,335.50 to you. What happens if you lose the case? Well, most personal injury attorneys will send you a bill for the $3,500 of expenses that they fronted and demand that you pay it. Many people, who were not told about the need to repay the expenses are shocked to find out that despite the attorney taking the case on a contingency basis they still have to pay money. Most Cases Are Not Contingency Fee Friendly Except for personal injury, collection cases, and fee-shifting cases, the majority of lawsuits and legal matters are not able to be taken on a contingency basis. Let me give you an example, which will hopefully highlight the reason why. Suppose that you are a small business and a customer sues you. Let's get even more specific. You are a photographer, and you are hired to photograph a wedding. On your way into the church, you accidentally drop your camera. You are late, so you quickly pick up the camera and start taking pictures. You photograph the entire wedding. However, when you get back to your studio, you realize that there is an issue with all of the photos. There is a dark line through the center of every image, likely caused by the drop. The photos cannot be saved, and you break the bad news to your client, the bride. She becomes enraged, like a savage beast that has been captured by poachers in the wild. Instead of going to your studio to set it on fire, she does something worse. She hires a lawyer and sues you. Despite your offering to return the bride's money, she is still suing you for damages. You are understandably upset. So, one night after being served with the Complaint, you are drowning your sorrows in a gallon of ice cream when you see a lawyer advertisement on your television. He tells you that his clients don't pay any legal fees unless he recovers for them. You assume that all attorneys work that way. So, the next morning you call a business attorney who says that his office will gladly represent you for a $5,000 retainer and an hourly rate of $350. You ask him to represent you on a contingency basis and he says, "no way!" You are confused, don't all lawyers work on a contingency basis? Why would this business attorney say "no"? The reason that the business attorney refused to accept the case under a contingency agreement is that there is no way for the attorney to get paid. There is no injury to value or to ultimately collect on. The only reason personal injury lawyers take contingency agreements is because there is a way for them to get paid. Business disputes and other non-personal injury cases can be complex and lengthy, requiring hours and hours of work. Generally, there is no way of knowing how long a business dispute will last. Basically, there is nothing to invest it and no way for the attorney to get paid for his work. Moreover, if you are a defendant in a case, you may have to pay the plaintiff if you settle or if you lose the case. Thus, the lawyer could not accept a contingency because you cannot get a percentage of zero. Bottom Line: Expect to Pay The bottom line is that if you have a case that is not a personal injury or collection matter or is not governed by a fee-shifting statute, chances are no lawyer will accept the case on a contingency basis. If you do have a personal injury case, make sure to ask your attorney about your obligation to pay costs and expenses, even if you lose the case.