ClearCast Episode 7: What Kind of Legal Trouble is Samsung in Over the Note 7 Recall?

[Editor's note]

..Not bad at all.

And Welcome to today's ClearCast!

As always, we appreciate you coming back and all the comments we've received through our social media channels.

Today, we tackle the controversy surrounding Samsung and the defective Note 7 phone.

If you are unfamiliar, more than 92 cases of exploding Samsung phones have been reported in America (with more than another dozen reports worldwide).

Included are a phone causing a car to burst into flames, and a very sad story of a small boy in Brooklyn whose phone blew up in his hands as he was watching a video.

Samsung has issued a recall for the defective phones. Problem solved, yes?

Not exactly..

Thanks for watching


[End note]




Jordan Flake: Hi welcome to ClearCast. I'm attorney Jordan Flake and I'm here with attorney Jared Richards, my esteemed partner and personal injury attorney extraordinaire. The reason we brought Jared on today is because he's going to give us some insight as to a potential, I don't know I guess it would be a potential products liability issue that's going on in the news right now. If you pull out your phone right now there's a chance that you own a Samsung phone, just because it's a highly popular phone here in America. Jared happens to own the Edge, which fortunately for Jared is not the Samsung phone that's been blowing up.

Jared Richards: It's not likely to blow up on me as far as I know.

Jordan Flake: As far as we know.

Jared Richards: I guess we'll only find out in time.

Jordan Flake: Samsung has recently released the very popular Note 7 and it's been blowing up on people. In fact there have been 92 reported cases of these phones blowing up. How do we start to think about this? Jared, if somebody calls you up on their land line because their phone's exploded. They call you on the land line and they say, "Jared, my Note 7 blew up while I was watching a video. It burned both my happens."

Jared Richards: Now and handless.

Jordan Flake: Now I'm handless.

Jared Richards: When it blows up do we know how violent the explosions are?

Jordan Flake: Brian. Can you help us out. Brian's off camera here. He can help us with that.

Brian: It varies from explosion to explosion. Some have been very serious.

Jordan Flake: Some just kind of catch fire.

Brian: Some explode in people hands. One exploded in a guy's pocket. He had a second degree burn on his hand when he tried to take it out of his pocket.

Jared Richards: What's interesting is, as you know I was in the air quite a bit last week. We had business up in Canada and we had business in Iowa. I had to fly out to go handle those. When I boarded the airplane, every airplane that I boarded, except for Frontier so I guess I worry about them a bit, but every other airline as I boarded they gave us the express instruction that if we have a Note 7 that we are not to turn it on, not to use it, not to take it out of the bag, make sure that it is off at all times. This is something that the ... they were saying that was what the FAA was instructing them to say. It's something that's of concern that airlines certainly don't want to have random fliers and explosions on the airplane. As you try to smuggle the Note 7 and you get tackled as a terrorist. Clearly it's a concern if the phone is going to explode.

The way that I think this is going to play out, it's going to depend. Every state handles this a little differently. When a manufacturer produces products that go to every state, you're going to be dealing with generally in the laws of the state that the person got hurt in. Although that might be an interesting analysis that somebody does at some point if they don't like the laws of their state. We have two problems here. We have one, exploding phones. The exploding phone itself makes the product not worthwhile. Nobody wants have an exploding phone and nobody wants to have the risk of having an exploding phone.

Jordan Flake: Although Samsung did point out that the risk was about the same as getting struck by lighting.

Jared Richards: Sure but nobody opts into that situation. Nobody stands on a mountaintop during a thunderstorm with a rusty umbrella saying, "God I dare you." As I was flying trying to turn on my Note 7 and an air Marshall was tackling me I was trying to explain to him ...

Jordan Flake: It's only as likely as getting struck by lightning.

Jared Richards:  We have three potential different types of lawsuits that might go on on something like that. First you have a class action suit. The point of a class action suit is that everybody has the same kind of damages. Whereas some people have been burnt and some people have had other property destroyed, they don't all have the same type of damage. There is one aspect of damage that everybody does have. That is everybody now has a phone that has either exploded or that they're worried about having explode. The cost of the phone itself is a similar damage across the board. Presumably some law firm out there probably already has started a class action suit to try to represent everybody in the United states in the market that has purchased this phone to try to get them a refund for the price of their phone. Quite frankly that could be a huge class action. For the individual person it's not all that valuable, it'll be a few hundred dollars. For the attorney's that take a percentage of the total amount it's going to be a significant amount.

Then we have two other types of injuries. We have injuries to person and injuries to property. There are two different theories of liabilities that are going to be popular here. The first theory is that of strict products liability. Strict product's liability is only going to deal with the malfunctions that actually hurt a human. Strict product liability, probably if you need to replace your pants that got burnt or on the case that Brian was telling us about where a car was burnt down or if you're an airline owner and somebody smuggles in the Note 7 and blows up your plane with it that really isn't a strict products liability because we're dealing with property damage.

As far as damage to people go, what we look at and different states do different things. The majority of states still follow what we call the consumer expectation test. The consumer expectation test just simply asks the question when you buy a phone and it blows up on you were you expecting it? This area of law actually is really complex and there's a lot of law and a lot of judgement and case law that we can use on this and different tests that we use. The very basic test is that of consumer expectation. If the phone is more dangerous than a consumer would normally expect then it's a dangerous product and the company is going to be strictly liable ...

Jordan Flake: For the damage to the person.

Jared Richards: For the damage to the person under that idea that the manufacturer is really the common factor and it doesn't' even matter, let's say that to make the phone explode you have to turn around three times and spit over your left shoulder and that's the only way you make it explode. You say, 'Well people shouldn't be turning around three times and spitting over their left shoulder. That person was negligent." In strict product liability we don't even care about the negligence of the user. We look at what the manufacturer did.

Jordan Flake: Right so if you left your phone ... let's say the common denominator is everybody had left their phone in a hot car immediately prior to picking it up and putting it in their pocket.

Jared Richards: You say, 'Well why did you do that? That was stupid?"

Jordan Flake: Right you shouldn't leave that in a hot car.

Jared Richards: Under a normal analysis you would look at the total damage. Let's say the total damage was $100 to the person. It's going to be more than that but $100 is a nice even number. You'll say, "Okay well we're going to put 20% on the user because they shouldn't have left it in the car. We'll put 80% on the manufacturer, manufacturer you have to pay 80%." Under strict product liability we don't care what the user did. We put it all on the manufacturer and the manufacturer is going to be liable for the damage they've done.

Jordan Flake: As a policy consideration of we want the big and powerful product manufacturers in our country, such as Samsung, to make safe product.

Jared Richards: To make safe products. Now other states are going to use other tasks, not so much consumer expectation, that was there a safer design? The answer is, I don't know my phone hasn't blown up on me. I'm sure that there's a safer design out there, one that doesn't blow up.

Jordan Flake: Should I just stop carrying my phone. I carry my phone in my front pocket. Could I carry it somewhere else?

Jared Richards:  You're not going to be carrying it ... I was thinking maybe you have a special case to make it so it doesn't ... it's like a firecracker. What happens when you put your hand around a firecracker? Big explosion. You have to be careful. As far a damage to property we use a different theory of law, it's called a product warranty. It's just simply saying there was an implied contract that they were going to give you something that wasn't going to blow up. They breached that contract so now they're responsible for the property damage they caused.

Jordan Flake: Let me ask you a question. Let's say the judge looks into this and they find out that Samsung was like, "Oh man these phones blow up but you know what? We have to rush this out there because iPhone 7 is being put on the market too."

Jared Richards: That's when things get really interesting.

Jordan Flake: Does that come in under the class action side? Now we'd be talking about punitive damages right? Does that come in under the class action side or the personal side or possibly both?

Jared Richards:  Both. What's going to happen is if Samsung actually knew that their product was dangerous before they shipped it out.

Jordan Flake: Yeah Samsung. They probably didn't know which just my guess is.

Jared Richards:  We have no idea. Samsung, please don't sue us we have no idea.

Jordan Flake:      Don't send your people out to us because we don't think you were witting there like, "Oh one in every hundred blows up."

Jared Richards:  You're giving that, I'm just saying I have no idea. I'm not implying they did, I'm not implying they didn't. I have no basis upon which to form an opinion. I'm not forming an opinion. Let's say there's a magic document, the damning email, the magic bullet that you have one of the designers sent a memo over to a vice president that said, "Warning, we're not so sure about this." The vice president got the memo and it went out anyway. Then we're talking about punitive damages and punitive damages are going to apply at all the different levels.

Jordan Flake: All the way, everywhere.

Jared Richards: Well every case the judge makes the determination of whether punitive damages are appropriate in this case. In the class action where everybody has lost, I mean what is the Note it's like $800? Everybody's lost an expensive $800 device either because it's blown up or because it's not worthy, fit, safe to keep in your pocket so they have to get a new phone. I don't know, did they sell a million of these? I don't know how many they sold. You look at the judge and say, "Your honor, they've caused $800 million of property damage by selling unfit phones and they knew about it and they sent it out for profit anyway." The punitive damages there may be very large. Every judge is going to make the determination whether punies are going to be appropriate in their case. If you have somebody who lost a hand, again I don't know how explosive these explosions are, but if somebody lost a hand or lost the use of their hand because it was so burnt, then that person might also very justifiably go after punitive damages against the company.

It's possible there would come a point where a judge would say, "Okay the purpose of punitive damages is never to award the person who's been hurt. It's only meant to send a message." There's already been so many millions of dollars in punitive awards against this company, guys message has been sent. We're not going to find punitive damages appropriate in this case. The plaintiff only has so much room to complain because the punitive damages, although the plaintiff is the one that gets the money. They're never really his, it was for the purpose of teaching a lesson and to prevent other people from doing the same thing.

Jordan Flake: Sure that makes perfect sense. I think that gives us a good rundown on obviously if you have a products liability situation you can probably easily tell if Jared's the right guy to call. If you have something like that pop up let us know. In the meantime, as always, we're very interested to hear your thoughts on this. Let us know if you have a different take on this or if you think the cell phone companies need to be treated differently when they have this type of situation come up. Leave us a message and let us know. Thanks so much for joining Clearcast. We really appreciate it.

Jared Richards:  Thank you.


class action

Podcast Preview: Why Are Class Action Lawsuits Permitted?

Earlier this week, Greg Hamblin hosted two of our partners, Jordan Flake and Jared Richards on his new podcastOn The Docket.

We had a great time! The whole episode will be a treat.

..The fun part about recording a podcast with one, Jared Richards, Esq., is that in the midsts of a irreverent conversation about law in the news, there will be a two minutes window where he explains, clearly and succinctly, why the legal system permits class action lawsuits:



Why Are There Class Action Lawsuits?


Greg Hamblin:   First question, in the Federal Appeals Court on Thursday, throughout a 7.25 billion antitrust settlement reached by Visa and MasterCard with millions of retailers that had accused the card networks of doing what?

Jared Richards:  Overbilling of some sort. Charging too large of transactions fees?

Greg Hamblin:   Yes, that's it exactly. More specifically that they had fixed their fees in a monopolistic way. The Appeals Court said that the accord was unfair to retailers that stood to receive little or no benefit at all and decertified the case as a case action. I don't know what that means.

Jared Richards:  Wow.

Greg Hamblin:   What's wow? What does it mean when it's decertified as a class action?

class action

Jared Richards:  It's problematic because the idea of the class action is that the individual cases are too small to ever make it economically viable to bring it to court because any given lawsuit, even like the extreme low end lawsuits, are going to cost $10,000.

A big one like this would cost millions and so you bring everybody together and sue them together. You sue with everybody together it's a class.

What you do is, because it's infeasible, where it's very difficult to go out and actually get everybody to sign up, you just have the court declare that everybody who falls in this class, meaning all merchants, will already be parties, will already be plaintiffs and they have to opt out, which is generally the way it goes.

It can go the other way but generally this way and that you have to write a letter saying that I don't want to be part of it or maybe you'll get mail saying I do want to be part of it.

If he's decertified in class, what he's saying is that every merchant, their damages are so different that they don't really fit well as a class. While that may be true that Walmart's damages are going to be significantly different than the florist that we talked about earlier, ...

Greg Hamblin:   Jack Benny's Florist.

Jared Richards:  ... Jack Benny's Florist, the problem is that Jack Benny's Florist is never going to be able to hire a lawyer to make this make economic sense. That's why you want it to be a class.

Greg Hamblin:   I see.

Jared Richards:  That's really difficult for the smaller guys. Even if they wouldn't get a whole lot of benefit that's probably also because they didn't get a whole lot of damage.


Podcast Preview: Mass Tort vs. Class Action


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


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 preview

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 podcastOn 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..

In case you missed Episode 1..


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.



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..


1 and we appreciate it very much

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



Considerations for a Product Defect Claim


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.


How a Cyclist Should Handle an Accident With No Police Report


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


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.



Ongoing Medical Treatment and Accepting a Settlement Early


Should You Accept a Settlement Before Completing Your Medical Treatment?



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.


Reporting Your Personal Injury Settlement on Your Taxes



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


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.


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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.


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


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.


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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.


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