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SC Rules of Professional Conduct

Recently two things happened that made me realize I should help highlight this point for my fellow South Carolinians.

  1. horrible head on collision in Anderson Countywhere deaths were reported; and
  2. Georgia attorney, Ken Shigley’s, blog post entitled “What to Do When Legal Vultures Descend on You After a Tragic Accident”

In Mr. Shigley’s article he highlights the pertinent parts of the Georiga Rules of Professional Conduct that are very similar in South Carolina.  The most important thing to remember is that, as attorneys, we can not contact you or have someone (investigator, life planner, “fill in whatever foo foo bullshit title”) contact you on our behalf after you or a family member has been in an accident.

There are stories about the Graniteville train accident, where out-of-town law firms had “runners” working cover as Red Cross workers to get clients. That’s wrong! (It was said, “All you had to do was look at the airplanes parked at the small community airport to tell something was up.”)

Last year, I personally had a local attorney solicit a client away from me and I reported them for their bullshit, selfish, arrogant, and unethical act. They had an investigator waiting on my client when she got home that informed her that he had been working on her case and had an attorney that had also already been working on her case. (They didn’t anticipate her coming to a law firm prior to them getting to her.)  That attorney came to her house, signed her up, and said they would take care of the “other attorney”, aka ME!

I expressed it with comedy in my rewriting of “I Already Got an Attorney?” but it really pissed me off. I just could not handle getting in another fist fight and having my name in the paper, so I put it on my blog.

 

Rule 7.3 Direct Contact with Prospective Clients

(a) A lawyer shall not by in-person, live telephone or real-time electronic contact solicit professional employment from a prospective client when a significant motive for the lawyer’s doing so is the lawyer’s pecuniary gain, unless the person contacted:

(1) is a lawyer; or

(2) has a family, close personal, or prior professional relationship with the lawyer.

(b) A lawyer shall not solicit professional employment from a prospective client by direct written, recorded or electronic communication or by in-person, telephone, telegraph, facsimile or realtime electronic contact even when not otherwise prohibited by paragraph (a), if:

(1) the prospective client has made known to the lawyer a desire not to be solicited by the lawyer;

(2) the solicitation involves coercion, duress, harassment, fraud, overreaching, intimidation or undue influence;

(3) the solicitation concerns an action for personal injury or wrongful death or otherwise relates to an accident or disaster involving the person solicited or a relative of that person unless the accident or disaster occurred more than thirty (30) days prior to the solicitation;

(4) the solicitation concerns a specific matter and the lawyer knows, or reasonably should know, that the person solicited is represented by a lawyer in the matter; or

(5) the lawyer knows, or reasonably should know, that the physical, emotional, or mental state of the person makes it unlikely that the person would exercise reasonable judgment in employing a lawyer.

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How Do Insurance Companies Make Money?

My question to every single one of you out there is, “What service do you pay for all your life but get penalized for using?”  If your guess was INSURANCE ding, ding, ding, you win.

I’m sick and tired of people coming into my office shocked and dismayed that their insurance company would “drop” them or significantly raise their premiums if they were to ever have a claim on their insurance.  Wikipedia explains the way in which insurance companies make money as:

Profit = earned premium + investment income – incurred loss – underwriting expenses.

Insurers make money in two ways: (1) through underwriting, the process by which insurers select the risks to insure and decide how much in premiums to charge for accepting those risks and (2) by investing the premiums they collect from insured parties.

I have heard this comment,

“I’ve never had a problem with my insurance company and I have had them for 25 years!”

Well how many times have you had a claim against them or have you just paid your premium every six months for the past 25 years and watched them collect on that premium?

Insurance is a much needed service but don’t go armed with a knife to a gunfight when dealing with them. Hire an attorney. You wouldn’t call a plumber to fix your car. Why trust an insurance adjuster that is paid to make money for their employer?

“Insurance ain’t nothing but a tax you have to live with. Cause you can’t get anything without it and it won’t pay you back.” –Client

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Interview While in Mediation: Featuring Everett Heard

In 2009, I participated in a mediation of a case on behalf of my clients, Everett and Virginia Heard, against Electrolux Home Products. During the seven or more hours that Everett and I spent together (Mrs. Heard was at home sick), I learned a great deal about his past careers and adventures.

Fortunately/unfortunately, depending on how you approach the issue, there can be some down time in a mediation, a form of Alternative Dispute Resolution.  Everett and I took that opportunity to talk about womenlovelifethe pursuit of happinessmy recent break upHong Kong, and Hawaii. I decided to try and memorialize some our bigger discussions in a question and answer format.

What did you find to be the most interesting point with the mediation process? 

Everett Heard*: Patience. I would have given them a price of take it or leave it and I am out of here. So patience.

What have you found to be the must frustrating?

For me, all the stuff that they (Defendant’s attorneys) said was true but it wasn’t my fault. I had just forgotten some of the details. (Considering the incident occurred so long after the deposition was taken).

What would you tell someone that was about to start this process?

If I came to you with this problem. I would have had to have my facts better. I didn’t have the facts there and that is what killed our case.  Make sure what you say is what is on record. (Or can be documented).

With life in general, what is something you would like to pass on to others?

Live your life. Bible says that, “You are not guaranteed another day.” (James 4 v 13-15 & Psalm 90)  Live your life as if each day was your last. If you want to go somewhere, go. You want to love someone, love them.  If you want a new car, buy the thing. Worry about the payments as they come.  Wait on love, it will come to you. You don’t have to go to it.  Wait to have children when you are both ready and ensure that love is there.

Always show affection to the woman you love, even if it is just a telephone call.  You can never tell someone you love them too many times.  A bouquet of flowers, box of candy.

I would give the world to be you. Successful. Handsome dude. With your whole life ahead of you. (I’m just writing down what he said).

 

*Mr. Everett Heard currently resides with his wife, Virginia, in Georgia.  Mr. Heard has served his country in the Navy, worked as a salesman in varying service related industries, has driven tractor trailers, and been tested and tried with a lot of what 60+ years of life can throw at someone, including but not limited to the death of his first wife in a motor vehicle accident & the death of his daughter. Please keep the Heard family in your prayers.

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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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Living the Dream: While Looking Behind the Curtain

We want to assume that the majority of people are inherently good and that those people perform the integral duties by becoming the spokes of industry, or corporations. Subsequently making the majority of corporations inherently good.  If you live in today’s world simply observing day-to-day headlines, you understand that general belief is not a pragmatic one.

 I am only thirty years old.  I have not gone to war for my country.  I have not served my country in a governmental capacity.  I go to church. Volunteer on boards in my local community and serve humanity in the best way I know how. Fighting! Mentally sparring in the arena of insurance injustice and inequality.

My matriculation came through real life trauma, then subdued emotions, dogged persistence to overcome, sheer determination, alcoholic anesthetizing relief (perceived relief), a secondary trauma jarring my belief in God & good, and then a laboratory environment of learning with analysis being the saving grace-cynicism a plus.

 Law school was of course the laboratory, set in the home of the Allman Brothers and the Oculmulgee Indian Mounds.  The latter being the former in historic terms.  A filtering of those bright, over achieving, contentious and, for the most part, selfish graduates of a four year university.  Those more altruistic, non-confrontational went to medical school.  All the others, escaped the grasps of the constant oil and water analogies and media hyped rivalries.

The laboratory teaches analysis, subjective thoughts of the objective facts.  Hypocrisy would be a more fitting term for the advertised spring-board to greatness. A confrontation in my second year at the rat lab helped me utilize these great tools of subjective thought when a study abroad opportunity came available only to be denied by my “advisor”.  A further inquiry to the dean of the school indicated the root of the denial didn’t come from the concerns of my furthering education but the flow of my tuition being re-routed to another program for a semester. That simply will not work when the staff of a private law school is being paid so well.  (Hear the voice of the man behind the curtain reign down.)

It seems I have constantly been exposed to the “man behind the curtain” in my real world experiences.  Life was fine till I realized every day is not a given and 65 is not the age you finally have fun, or enjoy the “Golden Years”.  My financial advisor initially tried to question my mockery of a 401K until he heard my story. Cancer can be a hell of party pooper. As my Aunt Mary K says, “Every party needs a pooper that’s why, I’m inviting you. Party pooper!, Party pooper!” That song always helps take away the demonizing aspect of a leukemia diagnosis.

A much more light heart ed and fantasy world example of Dorothy looking around to see a tiny old man, would be my internship at Walt Disney World, aka The Rat.  I never was an overzealous Rat lover but those people are minted at Disney.  I worked in the park and stayed at an apartment complex full of similarly aged co-eds, both from the states and abroad.  I met some of the most real people down there and was even in the wedding of one those friends.  However, those grand memories can not extinguish the horrors of traveling within the tunnels underneath the Magic Kingdom and seeing Chip & Dale with their heads off making out with each other on their break.  Watching Cinderella smoke Marlboro Lights.  Eerily enough, observing Mickey Mouse characters with some type of fairy dust on them that cause their eyes to sparkle with more energy and enthusiasm than most male cheerleaders at a slumber party. Scariest thing I have ever seen, outside an intruder at my bedroom window when I was young.

As the Tin Man looks for his heart only to realize there is no magic potion or quick fix for the traits we all possess. It just takes a little common sense and some introspect.  Life is frail. It can be taken away in the snap of your fingers.  As I stood by mother’s bed and watched over her during a 6 hour period, her lungs slowly constricted causing her breathes to get shorter and shorter.  Eventually her mortal shell could no longer operate and I witnessed her last breathe.  Her eyes slowly moved upward into her head and that was the finale to a year of her suffering immensely.  Pain so bad I awoke in the middle of the night to hear her screaming at the top of her lungs because the cancer was just eating her.

This leads to the Scarecrow searching for his brain, a search I have had to make on numerous occasions.  Self-pity had set in on my first round with cancer and I was having an exceptionally bad day when I just flew off the handle with an older gentleman that told me to not let the cancer get me down.  I made the horrible mistake of asking what he knew about it anyway.  He proceeded to tell me of his wife’s death, son’s death, and recent diagnosis he had with the horrible disease.  I learned quickly to never think my life is worse than anyone else’s.  You never know what someone else is going through.

There is no doubt finding courage for the Lion can be a hard task.  Externally he’s the “King of the Jungle”, all fear him and revere his dominance and power.  However, internally he struggles to face everyday life.  We all have felt this if we are in tune with who we truly are. I brave this daily posting my thoughts and writings for all to see.  The hardest and the most joyous thing in the world can be living.   Really living.  Looking at the leaves on a tree and seeing them for the wonderful thing God created with so much life and existence.  If you fail to enjoy the simplest things in life, how can you expect to enjoy the bigger things like your health?

Then again, what do I know?  I’m just “Living the Dream”.

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