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Personal Injury Claims and Bankruptcy (Part Two)

In Part One, I explained that if you don’t list your personal injury claim in your bankruptcy, you don’t “own it” any longer and don’t have the right to pursue the personal injury claim.   In this post I’ll tell you about another problem you’ll have and about a real case right here in South Carolina.

Judicial Estoppel Can Really Cause You Problems

If you fail to list legal claims during your bankruptcy, you may forever lose the right to pursue those claims. Once the other lawyer finds out your bankruptcy is inaccurate, you can’t say, “Whoops, I guess I’ll call my bankruptcy lawyer and list that claim on my schedules!” It’s too late.

This problem just raised its ugly head in the United States District Court here in South Carolina.  Blanche Wright had a legal claim against Richard Guess alleging violation of her civil rights. But when Ms. Wright filed bankruptcy, she didn’t list the federal lawsuit.

Predictably, the defense attorney found out about her bankruptcy filing. And they always do, by the way.

The defense then asked the court to dismiss Ms. Wright’s case because (1) she didn’t have standing to bring it—that is, she didn’t “own” the claim; her bankruptcy estate did, and (2) because Ms. Wright’s claims should be barred because of judicial estoppel.

What Exactly is Judicial Estoppel Anyway?

As Judge Anderson explained, “judicial estoppel is ‘an equitable doctrine that prevents a party who has successfully taken a position in one proceeding from taking the opposite position in a subsequent proceeding.’” This means you can’t say, “I have no legal claims” in your bankruptcy by not listing your personal injury case, then turn around and say, “I do have a legal claim” in your state or federal court case. You can’t “play fast and loose with the courts,” as Judge Anderson explained in Ms. Wright’s case.

Although Ms. Wright actually amended her bankruptcy after the defense filed its motion to dismiss, this didn’t impress Judge Anderson, who stated, “[c]ourts have repeatedly rejected the argument that judicial estoppel should not be applied when the debtor-plaintiff has attempted to remedy an omission by amending her bankruptcy filings.”

What’s All This Mean?

The bottom line is this:

  • You must notify your personal injury lawyer if you intend on filing bankruptcy. He needs to know. And he may also be able to refer you to a bankruptcy lawyer he knows will be qualified to handle your case.
  • You must list your personal injury claim on your bankruptcy schedules. Don’t ever hide anything from any lawyer you hire, and this is especially true when dealing with assets like claims in your bankruptcy estate.
  • If you don’t list your injury claim in your bankruptcy estate, you may lose it forever. Saying “oops, I forgot” will not work.

Your lawyers want the best outcome to your cases. Help them help you by keeping them informed of all your legal problems.

 

(This is a guest post written by Russell A. DeMott. Click on his biography below for more information about Mr. DeMott’s bankruptcy practice.)

 

Russell A. DeMott is a bankruptcy lawyer practicing in Charleston, South Carolina. He represents clients in Chapter 7 and Chapter 13 bankruptcy.

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The Value Dilemma: Personal Injury Cases

If you have been through a financial class, statistics, or done some investing, you understand the terms of Present Value and Future Value. I am not going to work through PV at present: PV = FV  r·PV = FV/(1+r). However,  “a bird in the hand is worth two in the bush,” is a much simpler term for me to understand.

I recently went through two mediations back to back and this analogy and/or theme seemed to prevail throughout the whole process. I find it interesting that many of my clients never want to “sue” anyone but they also want top dollar for their claim without ever having to file a complaint and undergo the litigation process.  That can be done but there are certain compromises that have to be made due to the present value vs. future value dilemma.

Working exclusively on personal injury cases in civil trial court, I work on a contingency fee basis for my clients. This means I work for free UNLESS I negotiate, take to trial, or otherwise render them a lump sum payment for the wrong that they have incurred as a result of someone or something’s negligence.  If I am able to provide them with a lump sum payment, my firm receives a percentage of that settlement, usually between 33.33%-40%, plus any costs that we have advanced on behalf of the client, ie medical records, depositions, court fees, expert testimony, etc. These costs grow exponentially once a lawsuit is filed and discovery of that lawsuit initiates.

More work, more time, more rules, more evidentiary backing and factual proof, more expenses, and more contentious interactions come with litigation, or filing a lawsuit.  Therefore, I always like to discuss the amount on the table today vs. the amount we would have to get on the table 2 years from now to be almost equal. For example:

  • $150,000.00 offer to settle in the pre-litigation stage would net the client close to $100,000.00 (-) a couple hundred dollars in projected costs.
  • If that same client was not happy with the offer and wanted to file a lawsuit, they would have to wait anywhere from 1 1/2 – 2 years for their day in court. Then they would allow 12 strangers on a jury to determine the outcome of their case. Practically this could lead to a defense verdict where they receive $0 or they could be awarded a higher amount. (We will use $200,000.00 for this example). The attorney fee would be at a higher percentage (40%), the discovery costs would be between $5,000.00-$10,000.00, and the client would then net $110,000.00.
  • If there was a mediation and it potentially could settle less than 1 year after filing, the defendant offers a little more at $175,000.00, however, the attorney fee most likely went up, so did discovery costs as referenced above, and the client made between $95,000.00-$100,000.00.

Sometimes, these values are never offered so there is no Present Value vs. Future Value Dilemma to discern.  I love going to court and doing trials, however, I want to make sure my clients brag about me and promote me to their friends, family, and/or loved ones in a time of need.  That is why I always address the Present Value vs. Future Value Dilemma when it arises.

For those Biblical scholars:

For to him that is joined to all the living there is hope: for a living dog is better than a dead lion. — Ecclesiastes 9:4

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Local Resources for Injured Clients

At Trammell & Mills Law Firm, we’re dedicated to protecting the rights of injury victims. People get hurt while at work, in vehicle accidents, in unexpected falls, or as the result of defective products. When an injury isn’t your fault, you can use the law to be paid fairly for your treatment.  But not everyone can afford access to medical services, so where can you turn for help?

If you suffer any severe injury that results in a broken bone or serious bleeding, don’t hesitate to seek emergency room treatment at a hospital.  Your urgent health comes first. But what about other injury ailments like strains, sprains, neck or back pain? Those also need medical attention, and you’ll need a diagnosis in order to pursue legal action. But if you’re unemployed or don’t have insurance, paying for a doctor visit could be a financial nightmare.

Fortunately, there are several clinics in our area where you can find free or low-cost treatment. Most of the clinics listed below will require proof of residency and unemployment, and you may need an appointment, so check before visiting.

The Anderson Free Clinic serves residents of Anderson County who meet federal income guidelines and have no insurance. You’ll need to fill out an application and have a new patient screening. The clinic is at 414 North Fant Street. Call (864) 226-1294 or visit their website for more information: https://andersonfreeclinic.org/

Samaritan Health Clinic is the free clinic of Pickens County. You’ll need a Social Security card, photo ID, proof of residence, and proof of income. They offer exams and other medical services. It’s at 303 Dacusville Highway in Easley. Call (864) 855-0853 or see their website:  https://www.samaritanhealthclinic.org/

The Greenville Free Medical Clinic offers diagnosis and treatment for a variety of ailments. Greenville County residents without insurance and have proof of household income are welcome. GFMC is at 600 Arlington Avenue in Greenville. Call (864) 232-1470 or see their website at  http://www.greenvillefreeclinic.org/

The Golden Strip Free Clinic also serves Greenville County. This sliding scale clinic requires proof of financial need and may require some payment. 101 Howard Drive in Simpsonville. Call (864) 232-1470, or visit: https://www.freeclinics.com/det/sc_Golden_Strip_Resource_Center

In Seneca, The Rosa Clark Medical Clinic provides a variety of primary care services. You can download an enrollment form, and you’ll need an ID and current proof of income. The clinic is at 301 Memorial Drive in Seneca, and you can call (864) 882-4664. Their website is https://rosaclarkclinic.org/index.html

The Clemson Free Clinic serves Clemson, Pendleton, Central, and Six Mile.  Lack of insurance and proof of income are required. 1200 Tiger Blvd. in Clemson, (864) 654-8277. Visit their site at https://www.clemsonfreeclinic.org/

There are several free clinics in northeast Georgia. MedLink operates clinics in Hartwell, Bowman, Colbert, and Royston.  All have sliding scale payment, and you can find a list at https://www.freeclinics.com/cit/ga-hartwell

Additionally, there are other options and avenues your attorney may able to educate you on to ensure you get the treatment you need without necessarily paying up front or out of your own pocket before any settlement is reached.

If you’re an injury victim, find the health treatment you need, keep all documentation, and more importantly- call Trammell & Mills at (864) 485-8585, so you can get the settlement you deserve.

 

 

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Triage: Injuries, People, and Priorities

Triage as defined in Wikipedia:

Triage is a process of prioritizing patients based on the severity of their condition. This facilitates the ability to treat as many patients as possible when resources are insufficient for all to be treated immediately. The term comes from the French verb trier, meaning to separate, sort, sift or select.

This can be applied to your everyday life in a non-medical setting. As the three primitive categories were determined on the battlefields of olden days:

1) Those who are likely to live, regardless of what care they receive;

2) Those who are likely to die, regardless of what care they receive;

3) Those for whom immediate care might make a positive difference in outcome.

Which do you fall into in your current state?

I will be providing a three part series of articles about Doctors, Lawyers, and Preachers as it pertains to those families or residents of South Carolina that have been affected by an injury. There is a time when we need each, all, or none.  Likewise, I think everyone should be “triaged” into the 3rd category because immediate care can make a positive difference in all our outcomes.

 

[My mother was an Emergency Room nurse for over 15 years at Lexington Medical Center. As she was one of the greater influences in my life, I felt it appropriate to utilize terms I grew up with and learned through observation, conversation, and integration.]

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