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Clear Counsel Law Group / Personal Injury

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Podcast Preview: Mass Tort vs. Class Action

Podcast Preview: The Difference Between a Mass Tort and a Class Action

Transcript:

Jordan Flake: Seriously, will you get into that for just one quick second? If a state, or a city, has an engineer, and a water company that knows, or should have known … ?

Jared Richards: Sure. Listen, unless there's some other law, a state law or federal law that I'm not aware of, that would block the person, just under general principles of tort, yes, absolutely. If somebody is poisoning you, you could go sue them.

Jordan Flake: This would probably … An attorney actually pursuing this would probably want to create a class, and try to certify a class, and have it be done as a class action, because we have various injured parties here …

Jared Richards: Yes, various injured parties. The difficulty of a class is trying to show that all of the parties were hurt in the same way; maybe you can, maybe you can’t. If you can’t show that they were all hurt in the same way, you would bring them individually as a mass tort, as opposed to class.

Jordan Flake: Oh, okay … A mass tort is different from a class because …

mass tort

Jared Richards: A mass tort is different from a class because, in a class …

Greg Hamblin: The damages were the same?

Jared Richards: In the class you’re going to have, the damages are going to be similar through all of the members of the class, and you’re going to have one or two class representatives that are going to speak for the class, and make decisions for the class, where in a mass tort, you have a whole bunch of plaintiffs that are thrown in.

Jordan Flake: Where some people are like, “I’ve got ingrown toenails!” and somebody else is like, “I got cancer!” and they each get according to their damages in a mass tort…

Jared Richards: That’s why, in most of the drug product defect cases, you’re going to find that they’re not class actions, they are mass torts … But when a company screws over all of their people by five dollars, based on subscriptions - That is going to be a class action.

Jordan Flake: Unity or similarity of damages across all the injured parties.

New Podcast Clip From Our Second Episode

Earlier today, Greg Hamblin was kind enough to host two of our partners, Jordan Flake and Jared Richards on his new podcast, On The Docket.

We had a great time! We can't wait to hear the whole episode..

new podcast

In the clip above, Mr. Richards and Mr. Flake were asked by Greg to explain how person could leave thousands upon thousands of dollars for a pet. Here is a great example from Britain¹⁾They use common law too! Where do you think we got it from?

Amoungst the new podcast fun, Mr. Richards and Mr. Flake explain what is necessary for person to bequeath a gift to a pet.

new podcast episode

New Podcast Transcript:

Greg Hamblin: Could you do that kind of thing with an estate?

Jared Richards: I don't know anything about estate planning. It is your money, and you can literally do whatever you want.

Greg Hamblin: It's a Disney movie waiting to happen.

Jared Richards: I worked for a poodle named Shotzel once.

Greg Hamblin: Yes. Did you really?

Jordan Flake: Yes. I did.

Jared Richards: Yes, the Hoolihan.

Jared Richards: The Hoolihan Estate, yes.

Jordan Flake: The Hoolihan Estate. We all worked for Shotzel. I hope Shotzel is doing okay.

Jared Richards: Shotzel died 2 weeks after his master.

Jordan Flake: Oh darn, oh okay. The anxiety of meeting up with Shotzel's demands is no longer resting on your shoulders. Seriously.

Jared Richards: All of the most premium of dog bones.

Jordan Flake: With Prince it's just interesting maybe he probably didn't expect to die as young as he did and maybe he just thought this stuff will take care of itself. You just contrast the $300 million of estate assets versus the relatively small amount of money that would have gone to an attorney. I mean it would have been expensive, no doubt, to do the estate planning. It's really crazy.

Jared Richards: Yeah, if I'm going to spend part, leave it all to the poodle.

Greg Hamblin: Leave it all to the poodle?

Jordan Flake: Leave it all to the poodle and the poodle's descendants and just call it good, and have them in a big mansion and create a reality TV show about their lives. It's not that hard. If we have any listeners who have pets who they would like to exalt and publicize, and then you can definite put what we call pet trust provisions in the estate planning.

Greg Hamblin: Oh my God.

Jared Richards: Or, if there are any NBC or CBS executives listening, we have an idea.

Jared Richards: Right, we have an idea.

Jordan Flake: It just struck some serious goals there.

Jared Richards: Absolutely.

Jordan Flake: What the provisions generally say-

Greg Hamblin: Pet lawyer on TLC.

Jordan Flake: Pet lawyer.

Jared Richards: If your pet needs a trust.

Jordan Flake: No, I already am a pet lawyer. I had a client come in, a very nice woman. She was a pharmacist and she has a life insurance policy for a quarter million dollars and she left 100% of the life insurance policy to her 12 cats that she currently has; or, and we made it flexible because the number fluctuates apparently, to whatever companion animals are currently living with her at the time she passes away.

She was very grateful to have that piece of mind. The reality is, it's her money. If she wants to use it to benefit her pets then that's well within-

Greg Hamblin: What are the cats going to do with the money?

Jared Richards: I'm sure a little catnip , all this…

Greg Hamblin: It's just going to ruin them. They're just going to get on drugs. They're not going to go to college.

Jared Richards: Everybody needs a response.

Jordan Flake: Therein is the genius of the TV show. Look at all the nice clothes they're buying. Look what they do with their, I'm just an heir lifestyle. “I'm just an heir” to this great fortune, you know? Some will make the videos and bad choices. We talked about that.

Greg Hamblin: We talked about it. We have these sensitive moments that really connect with the family viewers. Forget Paris Hilton.

Jared Richards: If you do want to do that though you do have to be careful and set it up properly. Just throwing it into your will saying I want to leave everything to my cat.

Greg Hamblin: It doesn't work.

Greg Hamblin: No. It has to be in a trust and you have to address that problem.

Greg Hamblin: I'm assuming that's because you actually have a human being who takes care of the pets?

Jared Richards: Yes.

Jordan Flake: That's right, that's right.

Jordan Flake: You have a trustee in that situation and you tell the trustee, listen this is how the money is to be used. You'll want to compensate the trustee and our trusts that we use generally have provisions for compensating the trustee, because at some point the trustee is going to say, "You know what? I think I'd rather spend this money on myself."

Greg Hamblin: Right.

Jordan Flake: This is a good candidate-

Greg Hamblin: He won't be satisfied with the irrevocable living love of the cat.

Jared Richards: Oddly enough, it's very, very few people will sue on behalf of the cats.

Jordan Flake: That's exactly why I was going to say either a co-trustee or a trust protector, or maybe designating an agent to benefit the cats while the trustee is somebody who manages the money. Those things can give you an idea because usually well, you know who comes along and makes sure the provisions of the trust are being enforced, as Jared hinted at, would be the beneficiaries. As much as the cats are then enjoying their wealth, they're not going to be in a state of mind to bring a lawsuit against the trustee if they're fulfilling their obligations.

Jared Richards: Or if they're fulfilling other things like if Miss Cruela DeVille were the trustee.

Jordan Flake: Right, exactly.

Greg Hamblin: Coming in 2017 on TLC. Oh my goodness…

Stay tuned..

Footnotes
↑1	They use common law too! Where do you think we got it from?

Podcast Preview!

Earlier today, Greg Hamblin was kind enough to host two of our partners, Jordan Flake and Jared Richards on his podcast.

Greg was very generous in allowing me to film the podcast session¹⁾and we appreciate it very much.

podcast

In the clip above, Mr. Richards was asked by Greg to explain how an East Cleveland man could be awarded a 22 million dollar verdict from a jury.

Specifically, Mr. Richards explains the difference between compensatory and punitive damages and how they are related.

Podcast Transcript:

As far as the punitive element, you have an issue because generally punitive elements need to be somewhat in line with the compensatory element. For those people that are listening that don't know, compensatory damages is just to reimburse the person for what was taken from them.

Punitive damages has nothing to do with compensating, reimbursing, awarding the victim. It has everything to do with punishing the person who has abused the victim. It has to be large enough to sting.

Listen, most cops out there are good cops. podcast

They follow the rules.

They do the right thing.

I can't think of any justification for locking somebody in a closet for four days. I don't care what they did, that's not due process, certainly not at a traffic stop.

Again, I don't care what you did, that's not due process, that's not allowed.

That kind of police abuse needs to be addressed and this is the proper way to address it. Whether it's $12 million or some other number, I don't know, but unless you have a high compensatory, then the punitive has to be somewhat in line, generally like a multiple of three in most cases.

It's the maximum you can award.

If you don't have the $10 million component, or at least like a $4 million component, for the compensatory, you can't get to the $12 million punitive. It doesn't make that analysis fair or rational, but it does allow the punitive to stand.

Stay tuned..

Footnotes[+]

Footnotes
↑1	and we appreciate it very much

Personal Injury Videos / General Interest / Personal Injury / Podcast - 06/21/2016

What You Should Consider if You Are Injured by a Product Defect

Considerations for a Product Defect Claim

Transcript:

Hi. I'm Jared Richards. I'm one of the counselors at Clear Counsel Law Group. One of our readers has asked what they should do if they feel like they have a product defect claim. Product defect claims can be complex. They can be very complex. They can be expensive to litigate.

The first thing you need to do is you need to call an attorney. You need to call an attorney who has experience in product defect claims. Don't just pick anybody, but somebody with actual experience in this area.

product defect, personal injury, las vegas, nevada

Two, you need to make sure that the product is preserved. You need to make sure that you keep it in the exact same state it was at the time of the injury. If you alter it, if you change it, you can have difficulty proving your claim. Now, really the most important thing, of course, in any type of injury is make sure that you get medical care.

That's the most important thing. Your health is the most important aspect of any sort of claim just because it's the most important aspect of your life.

Make sure you go see a doctor. Make sure that you get the care that you need. Call an attorney that has experience, preserve the product, and then let your attorney take it from there.

Personal Injury / Personal Injury Videos - 04/14/2016

How a Cyclist Should Handle an Accident With No Police Report

What Should a Cyclist Do After an Accident with No Police Report?

Transcript:

Jared Richards: Hi, my name's Jared Richards. I'm one of the attorneys at Clear Counsel Law Group and one of our readers has asked, he said, "I was a cyclist who was hit by a car. There's no police report but my arm is broken. Can I file a claim?"

The answer is absolutely you can file a claim. Police reports do not determine people's liability.

Police reports can be helpful but police reports can be nonexistent or they can be wrong. At the end of the day, the police report is not actually admissible as evidence at trial so the fact that there's no accident report doesn't mean you can't file a claim.

It can mean that it's more difficult sometimes to file a claim. Let's imagine, for example, that the other drive refuses to admit that the accident even happened. That's where a police report can be very helpful because it helps establish that an accident happened.

Cyclist, car accident, Las Vegas, Nevada, injury

What is really important though is after you get into an accident, even if you're on a motorcycle, or a cyclist, or a pedestrian, if you're a pedestrian make sure you get the other side's insurance information.

Make sure you take pictures if you have your phone with you.

Take pictures of their car.

Take pictures of their license plate number.

Take pictures of their insurance card.

Make sure that you document that it actually happened. Go get medical treatment and yes, their insurance company should cover it.

Also, be aware that if you're a pedestrian or if you're on a bicycle, that most of the time if you have under-insured motorist coverage, that your own insurance company will also help compensate you for your damages.

Looks like Brian has a question.

Brian: If you're a cyclist injured and the police report says you are at fault, will that foreclose your ability to recover a personal injury claim?

Jared Richards: No, again the police report is not admissible in court so it can help lead people to understand what happened at the accident and it can lead people to make, before you actually get to trial, to make decisions about the accident but ultimately the police just come in and they write their report based on what they see at the scene and what they are told by the parties.

That means the cops, most of the time, weren't there and didn't see it happen. Often the cops get it right in their police report.

Most of the time they find the right party at fault but not always and we've definitely seen many examples of where the police were wrong, the police have gone against our clients and yet we still were able to make a claim.

Usually that means that we have to file a lawsuit, unfortunately, but we file a lawsuit and most of the time we'll, if we feel good about the case, then we end up getting a good settlement.

The short answer is police determination against you is not controlling. What is controlling, are the true facts of the accidents.

Anyway, if you have questions, or especially if you've been on a motorcycle, or you are a cyclist, or you're a pedestrian and you get hit by a car, please give us a call.

Those are things we have experience with and we'd love to help you.

Thanks.

Personal Injury / Personal Injury Videos - 04/05/2016

Ongoing Medical Treatment and Accepting a Settlement Early

Should You Accept a Settlement Before Completing Your Medical Treatment?

Transcript:

Jared: Hi, my name is Jared Richards, and I'm one of the attorneys at Clear Counsel Law Group. One of our readers has recently asked whether they should accept a settlement before their medical treatment is finished. The answer is it depends. There are different factors that go into this. One of the main factors is what is the size of the insurance policy or what's the size of the funds available to pay the claim.

For example, if you have medical treatment that's going to cost $300,000 over the course of four years but there's only $50,000 to settle this claim, and that's really all there is going to be, then yes.

It would make some sense to accept that settlement before your treatment is finished. However, if it's a large amount of money that is available to pay the claim, let's say a major company has injured you, and they actually have the ability to pay the true value of your claim, then often it's not a good idea to take a settlement before treatment is done.

medical treatment, personal injury, las vegas, Nevada

However, sometimes treatment can take years and years and years. At some point during the settlement, if that's the case, your attorney's going to sit down with your doctors and perhaps a life care planner, that is a professional who is paid to help determine what future medical treatment is going to be, and they can make estimates as to what that expense is going to be.

Then that can factor into the amount that you settle. In that case, you would be settling before your treatment is done.

The short answer is it can be complicated and you should talk to your attorney. Looks like Brian has a question.

Brian: How do you find out how much money is available to pay your claim?

Jared: That can be tricky sometimes. First of all, you need to look for available insurance policies. Now most of the time you can find that through police reports or you can force the other side to disclose that as a term of settlement. If you actually go into a lawsuit, the other side is absolutely required to tell you all insurance available.

Now as far as funds outside of insurance, it's going to vary from state to state. The state of Nevada protects people's personal assets really quite aggressively.

There are so many things that are protected: houses, cars, insurance policies like life insurance policies, annuities, certain investors that are protected that you can never access even if you were to go get a big judgment against them. Because of that, most people simply just look to the insurance policy.

You could try to go after somebody's personal assets if it looks like they have them, but sometimes that's a gamble.

That's one of the things that you should talk to your attorney about and make a game plan as to whether you're going to go after insurance or whether there are also personal assets that might help pay for the claim and might help compensate you for what you've lost.

Anyway, it can be a complicated question, so please talk to your attorney. If you have questions for us, we're happy to help. Give us a call. Thanks.

Las Vegas / Personal Injury / Personal Injury Videos - 03/30/2016

Reporting Your Personal Injury Settlement on Your Taxes

Do You Need to Report Your Injury Settlement on Your Taxes?

Transcript:

Jared: Hi, I'm Jared Richards. I am one of the partners at Clear Counsel Law Group and one of our clients recently asked us whether or not they need to report their personal injury settlement on their taxes. The real true and clear answer is, you need to go talk to your accountant. If you received a settlement have a real accountant to have a real accountant to actually prepare your taxes for this year, and let them make the final decisions.

As a general principle you do not have to pay income tax on money that is related directly to the injury. If you have been hurt in an accident, car accident, and you have received settlement for emotional damages, for medical bills, for Pain and Suffering, or for your property damage, generally those are not taxable.

Tax Day, taxes, personal injury settlement, las vegas, nevada

The IRS views that as you've lost something and now you are getting it back in monetary format, so it's not really a gain. However, if you receive money for lost income, because that income would have been taxable anyway, you do need to report that to the IRS and you're going to need to pay taxes on it.

Again, talk to your accountant. Before you settle talk to your attorney to talk about how settlement might a portion to help advantage you on taxes. Talk to your accountant he's the one that's ultimately going to make these decisions. Looks like Brian has a question.

Brian: To clarify, Pain and Suffering is included in something directly related to the law suit that wouldn't be taxable.

Jared: It depends. To be quite honest it's been a while since I've had to look this up so, again, talk to your accountant. I want to make sure that's clear.

My general understand is that if the Pain and Suffering is related to an actual physical impact, that the IRS doesn't count that as income.

If the Pain and Suffering is in relation to somebody harassing you, somebody calling you names, that's something you actually might want to talk to your accountant about. That might actually be taxable. Again, you've heard me say it about twenty times in this little video, talk to your accountant about it.

As a general principal Pain and Suffering directly related to a physical injury is not going to be taxable. Thanks and if you have any questions give us a call.

Personal Injury / Personal Injury Videos - 03/24/2016

The Time Period to Settle a Case May Not Affect the Award

The Length of Time to Settle Your Case May Not Affect the Award

Transcript:

Hi, my name is Jared Richards. One of our readers has asked, does the amount of time taken to settle a personal injury claim have any bearing on the amount of money that I should expect? The answer is maybe. The two can be related, but there are a lot of factors. Although the factors are related, they do not necessarily control either side.

The amount of money you should expect in a settlement should hopefully be the fair amount of money. That's determined by the nature of the injury, the size of the injury, how much you've actually lost, whether it is in medical bills or whether it's in lost wages, or whether it's just in the value and enjoyment of your life.

Accident at work, personal injury claim, Las Vegas, Nevada, settle

However, if there isn't much insurance to go after, then sometimes a quick settlement will give the entire insurance policy, but it's still not going to be very much money, or it may be only a fraction of the true value of your claim. Sometimes really complex injuries take years to resolve. Those can be very significant claims because they've had a significant effect on your life.

There are times, however, when the two sides are close together but they can never see eye to eye. The plaintiff and the defendant ... just their offers are close but not close enough. Litigation goes on for a long time in that case. You might take years to settle and not actually receive anything more than you would have a year or two before. It's just the two sides can't see eye to eye.

While the length of time to settle can be related to the size of the settlement, taking more time does not necessarily in every case mean that you're going to get more money. You should talk to your attorney about this, and you should talk to them about the length of the litigation and whether you should perhaps compromise some value of your claim in order to settle it quickly, or you should really take the long haul and go for every penny of the true value of your claim even though it might take a long time.

That's something that you need to decide with your attorney. Anyway, if you have any questions, give us a call. We're happy to help.

Personal Injury / Personal Injury Videos - 03/18/2016

How Much Damage Should There Be Before You Hire an Attorney?

Knowing When to Hire an Attorney

Transcript:

Hi, my name's Jared Richards and I'm one of the partners at Clear Council Law group and one of our reader's has asked, "My medical bills and property damage and wage loss don't amount to much, should I still hire an lawyer?" The answer is you should still consult with an attorney because sometimes you are not analyzing the claim properly and sometime an attorney will have different insights for you as to the true value of your claim. However, if it really truly a small value claim, often many attorney will decide that it's really not cost effective to get the attorney involved and the attorney will talk to you about that.

Because most attorneys will take personal injury cases on a contingency fee, meaning they'll take a percentage off in a third before you file a lawsuit of any money that they collect and most attorneys in personal injuries will give you free consultations. It never hurts to at least talk to an attorney and maybe get them involved initially.

car accident, attorney, las vegas, nevada

If it really truly a small value claim, other than writing to the demand letter the lawyer may have second thoughts about actually filing a law suit and going forward with it. That's something you need to talk to the attorney about and that's something the two of you could work out together.

Otherwise, there's always small claims. If it truly is a small value claim, a few hundred dollars in medical bills, a few hundred dollars in property damage, at that point you can file a small claims complain and small claims court is specifically designed for people to represent themselves. That is always a vital option and sometimes a very good option. Anyway, if you're in that situation please give us a call, we're happy to talk with you and have to give you any guidance we can. Thanks for listening and go take a look at our other videos. Thanks.

Personal Injury Videos / Personal Injury - 03/11/2016

What You Need to Know about an Advanced Healthcare Directive

A Short Explanation of an Advanced Healthcare Directive

Transcript:

Jonathan: Hello, I'm Jonathan Barlow, I'm an estate planning attorney at Clear Counsel Law group. Today we're talking about advance healthcare directives, what they are, whether you should use one, how you might be able to change them. What is an advanced healthcare directive? It's a document where you can sign and state what you want done in end of life decisions. Sometimes called a do not resuscitate order, it's "Pull the plug" we say colloquially.

What do want done at the end of your life. Do I want to remain on life support? Do you want to receive artificial nutrition or hydration through a feeding tube? When do you want your life to be able to be ended? Those are directives and things that you can state and make those decisions clear in a healthcare directive.

Along with a Healthcare directive we often do what's called a healthcare power of attorney. That's where you get to mane somebody as what's called your agent, name somebody to make those decisions for you when you're not able to make your own healthcare decisions. If you're not able to talk to your doctors this allows your agent to talk to your doctors and make those decisions for you at that time.

Of course they would want to follow the directives that you put in your healthcare directive but at least you have somebody there on the ground to talk to doctors and make those decisions in that situation. Now, how do you change a healthcare directive? Say later on down the road you decide that you do want to receive life sustaining treatments for a certain period of time to give a hope of recovery or vice versa, you decided, "No I would want life sustaining support removed."

advanced healthcare directive, Las Vegas, Nevada, Estate Planning

You can always change your healthcare directive as long as you have your mental capacity. Which means as long as you understand what it is you are doing and what you want to accomplish. In order to amend it or change it, these documents are relatively simple. We basically do a new healthcare directive for you. We'll take your old one, we'll tear it up, throw it in the garbage can, we'll burn it, revoke it. We just want to get rid of that old one so there's no confusion.

You can always amend it, you can always change it as long as you understand what you're doing at the time. Now, sometimes people say, "I don't really now what I want to do at end of life. I don't know whether I want to be kept on life support. Should I still do this document if I don't know what I want to do?" The answer to that is definitely yes.

If nothing else, signing one of these documents again allows you to name somebody to make those decisions for you. It avoids the situation if you didn't have a healthcare directive or if you didn't have a healthcare power of attorney and you became incapacitated, not able to talk to your doctors.

The only way someone would be able to make those decisions for you is to go into guardianship court, open a guardianship case and have the guardianship court involved in the process of your healthcare decisions. It becomes very cumbersome, it becomes time consuming.

It's expensive to go that route, which all could be resolved by doing a simple healthcare power of attorney document. Brian has a question about advanced directives.

Brian: Yes, a quick question. If the power of attorney doesn't follow the designated healthcare directive, what happens then?

Jonathan: That's a great question. So you've named someone that you thought you thought you could trust to make these decisions as your agent and you've said, "These are my decisions that I want you to follow" and the agent's saying, "I can't do that. I'm not going to do that." What happens in that situation?

The short answer is they would really cause a lot of problems. The most likely scenario is that it will eventually lead to a court action again. Probably again a guardianship court situation. Where again, the court will become involved in just determining whether to follow your written decisions or whether to follow up what the agent is trying to do.

It could cause problems and that highlights the importance of what we were talking about a moment ago, which is unique to name somebody that you can not only trust to make those decisions but that you can trust to make those decisions in a very difficult time. It's a difficult time for them, it's a difficult time for you and it's a highly emotionally charged situation.

A lot of people that we trust and love won't be emotionally able to make those decisions at that time. You need to find somebody who has a strong will and who understands very clearly what you want them to do in those situations and would be willing to follow what you wanted to do. There's a lot of thought process that should go into this as you think about this important decision of who should make those decisions for you.

Otherwise like I said, you're going to find yourself in an even worse situation with guardianship court involved. Fighting between the doctor's and your agent and you're family. All situations that don't need to happen at that time in your life.

We've talked a lot about advanced healthcare directives, healthcare power of attorneys in this video. I thank you for watching the video. If you have other questions about it, more specific questions feel free to give me a call or any of our other attorneys at Clear Counsel Law Group and we'll answer your questions about healthcare directives and healthcare power of attorneys.

Personal Injury / Personal Injury Videos - 03/10/2016

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