“Mr. Beaver, many years ago you wrote a touching article about a young CPA who was horribly injured in a bicycle accident. Why, I cannot tell you, but for some reason I remembered that story.

“Two months ago my nephew, Brian, was struck by a pick-up truck owned by a power company. The driver was on his cell phone, distracted and did not see Brian or any of the other cyclists with him. The parallels of Brian’s injuries to your article are stunning, as are the potential family issues.

“If you can find that story, and your editors will run it again, a great public service will be accomplished, in addition, I hope, a message sent to my nephew’s family.”

We found the article.

There can be times when a parent must take charge, no matter how old their child has become. This is the story of one parent who did not.

In 1989 Rudy was a successful 28 year-old CPA. Handsome, a great sense of humor, a lovely girlfriend, Becky, nice car, in short, he earned many of the rewards that come with hard work.

Saturday afternoons were a special time for Rudy and Becky, as both enjoyed cycling. She was little more than 20 feet from him when he was struck by a bus that made an illegal left hand turn. She remained with him as he was air evacuated to a neurological intensive care unit in Sacramento.

Becky held his hand and talked to Rudy softly – through tears – for the weeks that he remained in a coma.

Upon awakening, it was to a world in which he would learn to walk with a cane, gaze at a paralyzed right arm, and to a voice which made him sound intoxicated. Brain damage can erase that which gives us our humanity, taking away logic, reasoning and self-control. These things were taken from Rudy. But through it all, his charm and strong personality remained. It would prove to be his undoing.

The lawsuit against the bus company was settled for several million dollars, enough to easily provide a comfortable life. But in the space of five years, Rudy’s net worth fell to $150,000. But how could this happen?

“My son’s first lawyer in Los Angeles urged him to put the money into insurance annuities which would pay out so much a month for life, with money left for his heirs,” Rudy’s mother explained. “But he insisted on managing his own finances, finding an investment adviser who helped him sink $500,000 into a failing bowling alley, then $250,000 in a mini-mall that was never built, and finally, almost $500,000 into various high risk investments, all of which failed.”

Rudy also was receiving $10,000 each month in “spending money,” as his parents explained. Craving attention and friends, spend, he did. To his impaired-mind, it was a way to retrieve lost self-confidence. “While the money lasted, our son had so many friends,” his mother related, adding, “He just would not listen to me.”

This bailiff had no sense of humor

Rudy was referred to our office following his court appearance for a reckless driving ticket which turned into ‘assault on a peace officer.’ With his one good arm, suddenly he began swinging the cane above his head, shouting, ‘I’m just raising a little Cain!’

“I didn’t know that bailiffs have such a poor sense of humor,” Rudy told me, oblivious to how close he came to being shot.

The nightmare was avoidable with a conservatorship.

When the extent of their son’s brain damage was known, this nightmare could have been avoided with a court-ordered conservatorship being established, as our legal system seeks to protect people from the effects of their own disabilities.

Had a conservator (or guardians as it is known in some states) been appointed, only safe investments would have been permitted. Rudy would have most likely been declared incompetent to manage his own affairs, safeguarding him from entering into most contracts. His conservator would have been required to see to it that some sense of order was maintained in his life. The power of our legal system would have been used to protect Rudy from others and from himself had his mother or other family members acted, then.

It is in the nature of things for parents to gradually let go, to replace “Mommy” with “Mom,” “Daddy” with “Dad,” a handshake or hug instead of a kiss.

Yet, in the hearts of good parents, our children are still young and small. And in need of our protection.

Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.

The post Adult son needs mommy appeared first on Dennis Beaver.

Later this month, Newport Beach Pacific Life will host a fabulous six-day event halfway around the world for the U.S. structured settlement industry.

According to the invitation, the gathering at the Four Seasons Maldives isn’t a junket but rather “an educational setting” to “exchange ideas on how to promote” annuity sales to accident survivors. Attendees are encouraged to bring a guest.

Since the Four Seasons advertises pristine, white sand beaches and turquoise waters, I suspect that settlement planners will do more than discuss insurance.

Pacific Life will also host U.S. structured settlement planners and their guests at a four-day gathering at the Four Seasons in Dubai, later this year.

Pushed toward a Pacific Life structured settlement annuity?

These trips raise a disturbing possibility: Will structured settlement planners push accident victims to certain companies even if others offer better or less expensive options?

If someone in your family has a structured settlement annuity from Pacific Life purchased in 2015 or after, can you be sure that your lawyer’s recommendation to go with them wasn’t influenced by a broker just itching to go on one of these trips?

Here are a few interesting numbers. Industry data from The Life Insurance and Market Research Association reveals that Pacific Life’s structured annuity sales dropped nearly 10 percent between 2013 and 2014.

But starting in 2015, when it announced a week-long industry gathering at the Four Seasons in Bora Bora, its sales surged from about $770 million in 2014 to nearly $1.2 billion in 2017, even as the overall structured annuity market was flat.

Lawyers expect settlement brokers to be fiduciaries for the client

Accident victim lawyers I know expect and view structured settlement brokers as acting in a fiduciary capacity for their clients and develop trusting relations with these people. Yes, brokers are paid fairly standard commission by the insurance companies who issue structured settlements, and that’s normal.

But if I knew that advice to influence my client to select a certain insurer had any connection with one of these incredible trips, it would be the last time I would ever use that broker.

While “Saturday Night Live” and Congress at times have a lot in common, one of the best things our representatives in Washington ever did for injury victims took place in 1983 when the tax code was changed to encourage structured settlements. This allowed an opportunity to put some or all of the settlement into an annuity that provides long-term financial support, completely exempt from both federal and state taxes.

Often clients must be persuaded to accept a structured settlement

Lawyers are fiduciaries, watching out for their client’s best interests with settlement funds and it is usually a challenge to persuade clients to consider protecting their future with a structured settlement.

Plaintiffs typically like the idea of taking as much cash as possible, which is generally the world’s worst decision. Hand most people several hundred thousand dollars and in less than three years it’s all gone; these people are likely to go on public assistance. However, a structured settlement can prevent such an awful outcome.

Time for the feds to take a look at these incentives

Congress has the power, and many would argue, the duty to investigate these incentives and the possible negative impact on accident victims.

Structured settlements protect the security of innocent people. That’s why both Congress and the structured settlement industry must pay attention to these troubling problems that are beginning to harm the industry’s reputation. Insurance incentive programs threaten to undermine confidence in structured settlements generally.

Congress needs to shine a powerful light on this situation. It may cause temporary pain in the industry but it will bolster long-term confidence in a program that has unmatched potential to help those in need.

Pacific Life’s response? – Where can this all lead?

So, what does Pacific Life have to say?

I left two voice mails and sent an email to Pacific’s man in charge of structured settlements, Geoff Kissel. He referred me to Steven Chesterman in their Communication Department, who emailed, “Wanted to let you know I received your message and we have no comment for your story.”

Finally, I would not be surprised to see these successful efforts to supercharge their structured settlement business result in class action litigation. In my legal opinion, thousands of annuitants could argue they were victims of a monumental consumer fraud and conflict of interest.

Because that’s what it smells of. And even if simply by appearance only, the harm done to the reputation of the structured settlement industry is significant.

Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.

The post Do you have a structured settlement with Pacific Life? appeared first on Dennis Beaver.

If you are a landlord–or plan to buy rental property–our story should scare you more than just a little, as the last thing you want is to be sued for a violation of the Americans With Disability Act which no doubt you’ve heard of.

And here’s a fact situation that is guaranteed to raise your blood pressure.

You’ve heard the term “Drive By Shooting,” where a car, building or person, is shot at by someone in a moving vehicle, making it often difficult to capture the perpetrator.

But have you ever heard of a “Drive By Lawsuit?”

Sacramento California attorney Cris Vaughan can tell you all about these suits which his law firm defends throughout the state.

“A ‘Drive-By’ lawsuit claims violations of the ADA by a person who does nothing more than drive by business without ever attempting to become a customer and there is no evidence of the individual ever being in their business.

“Business owners must hire an attorney to defend themselves where small and easily curable violations of ADA access requirements on the outside of their business that can be seen when driving by the property.

“Three law firms with less than twenty plaintiffs file the majority of the ADA cases in federal court. Twenty or more cases a month are filed using a single individual. California has a financial reward for the person who brings an ADA lawsuit, even for minor or purely technical violations, like a parking space being an inch too narrow.” Vaughan stated.

At least one individual law firm in California files more than one hundred ADA lawsuits a month using virtually identical language, changing little more than the name and address of the business in a boiler plate complaint. “In many cases, the lawsuit targets a small immigrant or minority owned business.”

Pay Up Now or Pay Thousands to a Lawyer Defending You

“The business either pays the settlement demand– frequently over $10,000–or spends thousands more fighting the lawsuit, or shutting down the business” Vaughan stated in frustration.

Unfortunately, the shakedown usually works, and it did with one of my clients, trying to sell their small motel. We were one of many victims of this incredible abuse of the well-intentioned ADA, until the Federal Courts in California and some other states put a stop to this thievery.

Never Even Set Foot on the Property

An Arizona lawyer and his wheelchair-bound client have used Google Earth to study swimming pool facilities at hotels throughout California.

The ADA requires hotels which have a swimming pool to be accessible to all guests. But how can a guest who is confined to a wheelchair get into a swimming pool?

The ADA requires hotels to install a pool lift to provide access to wheel-chair bound patrons. These lifts are easily visible on Google Earth.

Often city and county building code officers do not inform the owners of this requirement. In my town, they specifically told hotel owners that a lift was not necessary. That was bad, really bad advice.

If a wheelchair bound person checks into or tries to check into a hotel and discovers no lift at the pool, they have suffered a harm according to the ADA. Failure to have a lift is a clear violation of ADA access requirements and hotel guests would be well within their rights to file suit.

“But in these lawsuit, the plaintiff lived in Arizona, never left her home, but claimed an ADA violation because the hotel she saw on Google Earth lacked a chairlift! Her lawyer filed dozens of these questionable lawsuits in California Federal Courts against hotels all over the state!” Vaughan points out.

A Gun to Your Head

“Clients tell me ‘It feels like there’s a gun to your head. ‘Vaughan stated, adding “Many hotels simply settled these suits, paying $5,000 or more to the Arizona lawyer. But then a few attorneys who represented major hotels asked the Courts to dismiss these suits on the grounds of what is called Standing.

“That means, the plaintiff could not show that the lack of a chairlift actually harmed her, as she was never at the hotel, or in California, for that matter. But rejection of these lawsuits by the court came after many hotels just paid up.” he points out, adding, “These types of lawsuits are still going on today,” he concluded.

There is a lot more to the ADA, and next time, with Cris Vaughan we will look at common myths that could cost you big time. His website is adalegaldefense.com and he’s also on You Tube. By spending time there you will learn a lot and just maybe, keep yourself out of ADA lawsuit land.

Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.

The post Ever hear of a drive-by lawsuit? appeared first on Dennis Beaver.

It was a beautiful day at Malibu, and Sara was having the time of her life, surfing.

Only she has no memory of being there after the auto accident, having sustained a TBI – a traumatic brain injury which put her into a coma.

Given the extent of her injuries, Sara made an amazing recovery. The structured settlement annuity her lawyer negotiated guaranteed a monthly income of $10,000 plus large periodic lump sum payments, all tax free, for life.

But the TBI played havoc with her reasoning and logical thinking. A conservator was appointed who saw to it that her money was spent correctly, not squandered or lent to family and friends.

But, just like many TBI victims, Sara wanted control of the money and retained an attorney to end the conservatorship. He cared more about his fee than what was best for Sara. It was a horrible mistake.

“I got into business deals, lent money, and thought that I was doing the right thing,” she told me in that unmistakable TBI voice. “This structured settlement has ruined my life, and I was contacted by a company who will cash it out for me. That’s what I want to do, I want it out of my life!”

Don’t Do It!

I calmly reasoned with her. “Please speak to my friend, Greg Honnegar before doing a thing. He is a licensed, professional fiduciary in Templeton, California and works with people just like you, who have lost the ability of making good financial judgments. Will you wait, please?”

Sara agreed and spoke with Greg who put her in touch with a counseling organization in her town. She now has a licensed, professional trustee who will help manage her money.

So, what can family and friends do when faced with a TBI victim headed for financial trouble? What are the signs? What explains their behavior? I put these questions to Greg and his associate, Bakersfield-based Jamie Urner.

How a TBI Impacts Them – What Family/Friends Need to Discover

Jamie: They have a hard time seeing the big picture and making the best decisions. They are often impulsive and will not listen to reason. They use their TBI as a crutch. Irrational and compulsive behavior is common. They do not have a filter of logic.

Greg: When the TBI victim suddenly wants to sell their structured settlement annuity, you need to discover why they want to cash it out. It can be drugs, a new ‘friend’ or romantic interest pressuring them. While always counseled not to, so often TBI victims tell so-called friends about the money they receive every month.

On one level they might realize the need for help in dealing with predators who show-up after learning about their ‘friend’s’ income. But their lack of insight and inability to reason logically makes them even more vulnerable to being ripped off.

Warning Signs – What to Do

I asked Greg and Jamie to set out the warning signs that a friend or family TBI victim is headed for trouble. They listed:

(1) Overspending on wants and not meeting their needs.

(2) Spending compulsively. Buying 14 pairs of sunglasses and yet has no money to afford groceries.

(3) Hygiene and appearance issues. They are suddenly not taking care of themselves.

Jamie: When you see any of these things happening, get them to a medical professional, such as a neurologist, or someone who works with brain injuries. You must address the underlying physical condition and opiates, or other pain medication. What is their medical, or psychological condition? Are they delusional?

Greg: If it is clear they have lost the ability to manage money, you’ve got to speak with an attorney who handles guardian or conservatorships. If you cannot afford to hire an attorney, every county has these services available as well.

Ideally, a spending plan will be developed based on their income and the person’s basic needs: food medical care, housing, etc. Attempt to do this with the person, so you can all agree if possible.

Family and friends need to have a dialog with them, to understand what they really want out of life, not what we want, what they want. It comes down to needs and wants and the reasonableness of both.

Jamie: As fiduciaries, we often recommend the True Link pre-paid Visa card for these people. It is a debit card allowing selection of a defined batch of necessities, vendors, dollar amount, type of merchandise, no over the phone purchases, no alcohol or tobacco. It prevents them from obtaining cash. Every time they use it the fiduciary or other designated people get a text on their phone.

Both Greg and Jamie cautioned, “Do not wait for things to improve by themselves.”

Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.

The post How family and friends can protect the TBI victims appeared first on Dennis Beaver.

“Mr. Beaver, about a year ago I was in a bad auto accident caused by a 17 year old running a red light. I will require at least two operations in the future, keeping me off work for months. After attorney fees and medical bills, the settlement will net me about $200,000.

“I have never been a good money manager, buying ‘toys’ I don’t need, and making loans to friends — which are seldom repaid.

“My lawyer says the best way to deal with those problems is by having most of the settlement money put into an insurance annuity, a Structured Settlement.

“I’ve read your column for years and trust your advice. What would you recommend? Thanks, Ben.”

Accepting a large sum of money = Pressure from every direction

“That’s excellent advice,” New York attorney Derek Sells commented when we read him Ben’s email. Sells is the Managing Partner of The Cochran Firm’s New York office and is a widely respected litigator who often suggests structured settlements for his clients.

“Accepting a large sum of money makes you a target, resulting in pressure coming from every direction: friends, family, church, boyfriends, girlfriends, college friends, just about everyone you know,” Sells underscores.

“Ben will hear endless reasons why he should ‘loan’ friends money for car repairs, leaking roofs, credit card debt, and child support. Then there’s the inevitable pitch from some distant family member who styles himself or herself as a financial expert and promises to create a huge return on his money in 6 months.”

“Start giving in, and Ben moves from target to financial victim,” according to Peter Arnold, a longtime structured settlement consultant and former Deputy Executive Director of the structured settlement industry’s trade association. “It’s like throwing a raw steak into the ocean when you know that sharks are there.”

“Often, the temptation to share this sudden wealth overrides better judgment about saving it for the future. A structured settlement is like putting a German Shepard in front of your money to make sure efforts to grab and spend it easily fail, and allows you to honestly state, ‘I would love to loan you money, but it is beyond my reach,’ he points out.

How a structured settlement works — Tremendous tax advantages

In a structured settlement, instead of receiving a single, lump sum payment, part or all of the money is used to obtain an insurance annuity which provides a guaranteed, long-term stream of tax-free income payments tailored to the accident victim’s specific needs, such as money to pay for college or possibly an operation years down the road.

Most people are not good at managing large amounts of money suddenly received. Experience shows that within two to three years, many accident victims have spent every cent when given a lump sum, often winding up in bankruptcy and some on welfare.

So, to help prevent that from happening, in 1982 Congress authorized tax-free structured settlements to encourage periodic payments and financial independence for accident victims.

“Even in today’s low interest environment, 4% is a typical rate paid on the money held by the insurance company. So over the years, the annuity grows, and the more time before payments begin, greater the payout. If Ben took the money as a lump sum and invested it, earnings would be taxable, not to mention risk of loss,” Sells observes.

Flexibility and safety

“One of the great advantages is flexibility of payments, designed to meet future medical, educational and income needs of injury victims and their families,” Arnold notes.

“Let’s say that a year old girl loses her father in an auto accident and a large settlement is negotiated. Payments could start when she is college-age, and then every so many years to help in buying a home, raising a family, for her lifetime and even to a designated beneficiary if she were to die prematurely.”

“Placing your structured settlement with a highly-rated company, knowing that your payments are guaranteed–not affected by ups and downs of the stock market–buys piece of mind and the payments continue even if you are able to return to work, unlike SSI or Medicaid benefits,” Sells adds, and cautions:

“Do your homework and importantly, be sure the life insurance company you choose for the structure is highly rated ‘Superior’ by at least a couple of rating agencies like Standard & Poor’s or AM Best. Remember, the Titanic was thought to be unsinkable.”

Why did you let me spend the money?

“Some clients just will not listen,” Sells remarked, “and one stands out, a middle-aged woman who netted over $100,000. She took trips to Las Vegas with friends, blew through the money, returning to see me about a year later, asking:

“Why did you let me spend the money?” 

Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.

The post How to keep ‘friends’ away from settlement money appeared first on Dennis Beaver.

“You have a reader on the phone who has a deposition scheduled for next week and cannot reach his lawyer. Apparently, they have never met in person.”

With that announcement from my paralegal, I immediately took the call, and spoke with Dean, who reads this column in the Kingsburg Recorder.

“Mr. Beaver, I just got notified by a paralegal that my deposition is being taken next week. I know they will ask me about what happened, but shouldn’t there be some preparation? I called the lawyer and left a message, but have not gotten a return call.

“In fact, I have never met Terry, my lawyer. I’m worried! What should I do?”

In February of 2016 Dean discovered that an angel was watching out for him when a drunk driver rear-ended his motorcycle. “The force of the collision sent me flying, but instead of crashing onto pavement, I landed in bushes, only breaking my arm, spending two days in the hospital,” he explained.

“Back at home, I saw a late-night TV commercial for a law firm promising to fight for the little guy and called them. The next day their investigator came over and signed me up, but since that time, I have only spoken with secretaries and paralegals.”

Upon giving me the name of the law firm, everything became clear: Dean’s angel went on vacation and he wound up hiring what is known as a “settlement mill.” These are lawyers who advertise like crazy, handling personal injury cases on an industrial scale — anything they can sign up. Then, rushing to settle, take whatever the insurance company will offer, rarely filing a lawsuit.

Settlement mills are factories, cranking out personal injury settlements in amounts that bear little relation to the real case value, often leaving their clients with thousands of dollars in unpaid medical bills.

As so few suits are filed, their lawyers are functionally incompetent when it comes to real litigation. They don’t practice law; they mal-practice law, and my reader was about to become one of their victims.

In what seemed a straightforward rear-end accident, why file a lawsuit? Also, which insurance company represents the driver? I asked our reader those questions, his answers made it clear why a suit had to be filed, and how doing well at his deposition would be critical.

“There were four witnesses, and one of them told the police that I cut off the driver, resulting in the accident. That’s the only thing I can think of,” Dean replied.

The driver’s insurance company — who run funny TV, radio and internet ads — has a reputation for denying perfectly valid claims on the thinnest of grounds, or no grounds.

In one case, their insured made a sudden, illegal U-turn in front of our reader. The claims adjuster stated, “Well, obviously he failed to keep a proper lookout and should have anticipated someone making a U-turn!” My reply was that he must have failed Mind Reading 101. That kind of reasoning is the very definition of insurance bad faith.

Dean was in trouble. In a few days his deposition — a potential make-or-break event — was about to take place.

At the least, it was obvious the deposition needed to be rescheduled. But our reader needed more. He needed a lawyer, a real lawyer, an experienced attorney and not a law firm cynically looking at clients as mere numbers.

Dean needed an attorney who places the clients interests first.

We know lawyers who can fill those shoes a 20 minute drive from his home, not four hours away in Los Angeles. But, first, we had to deal with the deposition.

The State Bar website revealed that Terry had been in practice for only one year. I got him on the line with us.

“Dean is facing an important deposition within days which must be rescheduled. He needs an experienced litigator who can prepare him for this depo, possibly trial, and no one can expect you to have these skills at this stage of your career.

“All of us starting out occasionally let dollar signs get in the way of our better judgment. Both of you are better off when Dean find a new lawyer. He really needs your help with that transition, but right now, that depo is the issue.”

And Terry’s reply?

“My God, I didn’t even know there was a deposition scheduled! I’ll get it re-set and will help Dean anyway I can. Dennis, thanks for your advice. You’re right. After the holidays, I’m getting out of this place!”

Dean’s angel was back on the job.

Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.

The post If and when you hire the wrong law firm … appeared first on Dennis Beaver.

Friends of this column, Brian Kabateck of Kabateck LLP, and his partner Shant Karnikian have earned a nationwide reputation as among the most successful plaintiff’s lawyers handling cases on behalf of consumers against insurance companies, large corporations, and wrongdoers.

Brian Kabateck has served as President of the Los Angeles County Bar Association and the Consumer Attorneys of California. Concerned that the actions of a select few nefarious lawyers have risked the reputation of an entire profession, Brian and Shant felt the need to share some guidelines for the average consumer to keep in mind when hiring an attorney.

1. Understand timing and expect reporting from your lawyer. Generally, cases have important dates or events like status conferences, hearings, and trial setting conferences during which important decisions may be made. Your lawyer should be advising you of all important dates and rulings.

2. Always be aware of the agreement you entered into. If this is a contingency fee agreement there should be specific percentages laid out in the contract also known as the “retainer agreement”. Understand those percentages. This is particularly important when you are settling the case. Often clients misunderstand the percentages because some attorney agreements might have a sliding scale starting at a lower percentage if the case settles early and going to a much higher percentage if the case goes to trial or gets close to trial.

3. The lawyer’s fee is earned when the case settles and when the settlement funds. Unless you dispute the amount of fees, the lawyer is entitled to take his or her fees upon payment of the settlement. This fee is dictated by the retainer agreement, and it is compensation for the lawyer’s time and effort.

4. In addition to the lawyer’s fee, expect that you will be charged costs and expenses. The case is not free. Not only does the lawyer earn a fee but often the lawyer is advancing costs like filing fees, the cost of ordering court reporters, or copies of transcripts. Those costs may be deducted before or more likely after the attorney fee is charged.

5. Look closely at the costs that you are being charged. Ask for a breakdown. Watch out for certain “hidden costs” which may be impermissible such as an administrative cost to set up a file for the lawyer or a cost to review a file. These are more traditional legal fees which are being disguised as costs. On the other hand, the agreement you have signed may authorize the lawyer to charge a cost for setting up a file.

6. When reviewing costs, determine if it is an in-house fee that the lawyer is charging or if it is an outside vendor. Often lawyers may charge you costs for an in-house fee which is perfectly permissible if it was outlined in the retainer agreement.

7. At the end of the case, often the net recovery for the client can be put into a “structure” or an annuity which will provide a substantial tax benefit to the client, but be very careful if the lawyer claims they are investing money for you or promises to invest your money. This is most often impermissible and is a red flag.

8. Another red flag would be any long delay after settlement. After you enter into a settlement you can usually expect anywhere from two to four weeks before the settlement will fund (sometimes longer if it takes longer to execute a settlement agreement) but any delay beyond that is worth an explanation. Also, within a short period of time after a settlement funds you should receive your net proceeds. Delays are a warning flag.

9. Another warning flag is asking for money during the case when it is not called for. Sometimes lawyers will ask their clients to pay for costs or expenses that they have already contractually agreed to advance.

10. If you win the case and the other side appeals or if you lose and you decide to appeal, your retainer agreement or contract with your lawyer may not cover an appeal. Be sure you understand that in advance and be sure the lawyer is not charging you for something you have not agreed to. It is completely permissible for the lawyer to ask the client to sign a new agreement for an appeal, but they cannot charge you more money unless you have agreed to it.

11. Make sure the lawyer you hired is the lawyer who is actually going to try your case. It is not uncommon for lawyers to handle lawsuits and then refer it out to somebody else to try, but you want to know that up front. Are you hiring a lawyer who is going to try your case? Or are you hiring someone to simply present the claim and then, if it does not settle, hand it off to somebody else? Most states require the client to agree in writing if the lawyer is going to share his or her fee.

12. If you fire your lawyer, they may put a lien on your case but, in most situations, they cannot demand payment upon firing unless the retainer agreement calls out for it. Conversely, if the lawyer withdraws from the case or decides to stop representing you in the case, many states do not allow the lawyer to recover fees.

13. Remember that the case is going to take a long time to work its way through the courts, particularly in the post-COVID world. Courthouses across the country have become log jammed with cases and trials. A case that could go to trial in 18 to 24 months before the pandemic may now take three to four years or longer because of the backlog. Delays are expected, but make sure your lawyer keeps you informed about the reasons for such delays.

14. You may have a great case with clear liability and substantial injuries or damages, but you need to find out early from your lawyer if the defendant has the ability to pay or if there is adequate or inadequate insurance. Make sure your lawyer communicates with you.

15. Communication is the great panacea for all difficulties in an attorney-client relationship. No client has ever complained because they have gotten too much information. Conversely, be wary of a lawyer who is not keeping you posted on what is happening in your case or ignoring your requests for updates.

Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.

The post Keep these guidelines in mind when hiring an attorney appeared first on Dennis Beaver.

“I was in a car accident several months ago and hired a personal injury attorney almost immediately. Initially, she was very responsive, returned my calls promptly, keeping me informed of everything. Then, suddenly, silence. I leave messages, am promised a call-back, but nothing!

“Treatment for my injuries is on a lien basis with bills to be paid when the case is resolved, but now I don’t know what to do. Should I change lawyers? Thanks, Darlene.”

Unhappy or pressured to change lawyers?

I ran Darlene’s question by a friend of this column, Southern California personal injury attorney Shawn Steel. His law practice is unique in that he not only represents accident victims, but also health care professionals, “Who have been badly dealt with by lawyers refusing to honor their contracts with doctors to pay their bills when the case settles.”

Steel provided practical advice for health care providers facing that situation in a recent article I wrote, “When Lawyers Refuse to Pay a Client’s Doctor Bill”

As he explained, the question of “to change or not to change lawyers” comes up under two different scenarios:

–You’ve hired a lawyer on a contingent fee basis, but are not satisfied with the legal services provided, or;

–You are being pressured into changing lawyers by friends, family members or–which is illegal in most states–some other attorney who wants your case.

Steel set out four questions client often ask:

(1) Do I have to give a reason before changing lawyers?

(2) Will I owe the first lawyer for time spent on my case?

(3) Should I wait and see if things get better?

(4) I signed a lien with the lawyer to pay bills, but if I change attorneys, what happens to that lien?

“You do not need a reason to change lawyers, and what your reader has described is one of the most common – a failure to communicate, ignoring you,” Steel points out.

“But don’t fire your lawyer just because your phone call wasn’t returned immediately! You’ve got to be reasonable. And keep in mind that your old attorney has a right to be paid by the new attorney out of settlement proceeds.

“When you feel the relationship is a bad fit, end it immediately. Two or three months is no problem. Lawyers will take your case as not much of a fee has been earned in that short amount of time. Simply stated, the older the case, the less desirable it is to the new attorney and even good cases get rejected for that reason,” he underscores.

What Happens to the Lien I Signed with the First Lawyer to Pay My Bills?

Financially an auto accident can become a nightmare lasting years if medical and chiropractic bills aren’t paid. Clients often think, “But as I had a lien with the first lawyer, it automatically transfers to the second lawyer, right?”

“Unfortunately, that’s not the law,” Steel emphasizes.

“Changing lawyers extinguishes the lien. Unless a new lien is signed by everyone, a potential costly problem for the patient is around the corner, and this is my advice to health care professionals and their patients:

(1) Health care providers – When becoming aware your patient has a new lawyer, immediately get a new lien signed. If the attorney refuses, bill the client at once – don’t wait! Also, occasionally ask patients if they have the same lawyer.

(2) Patients – It is potentially damaging to your credit and even to the ability of getting a job in some circumstances–if your case has been settled without the health care providers being paid and you wind up being sued. If you change lawyers, immediately notify all of your health care providers of this fact, with the name, address and phone number of the new lawyer. If you do not, you’ll have to pay out of your own pocket and could be hounded by a collection agency or taken to court.

Resist Pressure to Change Lawyers

Everyone has a ‘know-it-all’ relative who will claim to know more that your lawyer, or has ‘a friend’ who is an attorney, ‘So just drop the lawyer you hired and go with my guy!”

“Clients hear that often,” Steel notes, and warns his own clients that before doing anything, when hearing such advice from family members, ‘Just talk with me.’

“But that’s tame by comparison to lawyers who illegally attempt to steal cases involving serious injury, where the settlement value can be extremely high,” he observes.

“There are predators out there, people who work for lawyers and get an illegal kickback. If you get approached, call your lawyer right-a-way, as it is illegal for anyone from another law firm to contact you if you are already represented.”

Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.

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Conflict is part of life. Just ask any divorce attorney, bankruptcy lawyer or lawyer who represents employees in wrongful termination lawsuits, “What is the common denominator that brings clients to your office?” They will tell you that it is more than simply an unresolved conflict, but their clients also doing things that stand in the way of a resolution.

Harvard anthropologist and negotiation expert William Ury, author of the bestselling Getting to Yes, gives us a road map of how to approach conflict resolution in his new book, Possible: How We Survive (and Thrive) in an Age of Conflict (coming out on February 20).

I discussed these issues with Ury and Dr. Luis Vega, social psychologist and interim dean of the School of Social Sciences & Education at California State University, Bakersfield. Here’s how not to approach a conflict at home, at work or anywhere people disagree.

1. Fall into the ‘three-A trap’ — attack, avoid or appease.

Ury: The best way to not resolve a conflict is to fall straight into the “three-A trap.” Either go on the attack, thinking, “I’m going to win this,” or do the opposite, which is to avoid. Or appease — just give in. But that doesn’t resolve it either, because we’re not happy, and it probably isn’t going to stay resolved for very long.

2. See the world as having only winners and losers.

Vega: An “I win, you lose” attitude robs others of their humanity and feeds the virus of bigotry and vitriol. Self-focus deprives us of the need we all have for connection and community. Conflict becomes circular — they attack us, we attack them, and we all lose. Marriage counselors see this a great deal where one partner insists on always being right and can’t find their way to compromise. The next step is obvious.

3. React out of fear and anger.

Ury: Don’t give in to your initial emotional reactions of fear and anger and then dig in, refusing to budge and thinking, “It’s them vs us.” You will destroy all trust and almost all possibility of agreement if you:

Focus on your problem alone, not their needs.
Just talk at people, or don’t talk with them at all.
Cut the phone line with your neighbor as a way to deal with your differences.
Reduce it all to a zero-sum proposition where one side wins, and the other side loses.
Just keep pushing them to do what you want and treating them with disrespect.
Make it harder for them in every possible way.
Also, discouraging help from anybody — “stay out of it; it’s none of your business” — won’t resolve anything.

And, if you’re a third party watching this going on, you can ensure nothing works out by doing nothing. Or worse, taking sides and escalating the situation. Or getting discouraged and giving up very quickly.

4. Overly rely on intuition and experience — fail to listen or pause.

Vega: You may know yourself, the other party, even relevant stakeholders, but vigilance of your own emotions is critical. And it is tricky because of tribal impulses imbued and influenced by primal emotions processed in the lower brain. This often funnels myriad factors into negative feelings that add fuel to conflict — anger, fear, distrust, contempt and jealousy. This is why, before reaching a conclusion or speaking out, we need to pause and listen, thereby calming our reactive emotions.

5. Fail to ask, “How can I help?”

Ury: Asking an open-ended question like, “Can you help me understand what happened here? How can I help?” is an essential tool. Suddenly, in that moment, you are putting yourself on the same side as them, searching for a way to resolve the issue instead of coming in as an adversary. This simple question often changes everything.

Vega: Asking, “How can I help?” gets a reflexive, or programmed, response that creates familiarity with a task — or muscle memory. It hardly matters what the issues are: When someone says, “I need your help,” the reflexive answer is, “Sure, how can I help?” This suspends biases — for a moment — creating a focus on common interests and an opening for dialogue. It is a truly powerful tool.

6. React to sarcasm with sarcasm.

Ury: Either in a meeting or in written form, if you meet sarcasm with sarcasm, attack with counterattack, distrust with distrust, you end up getting into a fight that no one comes out winning.

When putting things in writing, ask yourself, “Who else will see my sarcastic reply?” and “Can this harm my credibility?”

So, just ignore the insults and deal with the issues — you will come out of this looking far better.

The takeaway

Possible makes readers a fly on the wall of Ury’s incredibly accomplished life. Conflict resolution, as readers see, so often comes down to one person who radiates that “we can resolve this together” attitude. It is a terrific read, and he wants the reader to become that person.

The post Six Things Not to Do if You Want to Resolve a Conflict appeared first on Dennis Beaver.

“Our son sustained a horrible injury during birth that will require life-long medical care. There will be a large malpractice settlement. Our lawyer strongly recommends a structured settlement annuity, but my financial adviser says he can significantly grow the funds with proper, managed investments. What should I do?”

Interest in structured settlement annuities has been growing in 2024. Insurance companies issued about $2.6 billion of these specialized annuities from July to September, according to John Darer, a Connecticut expert on structured settlements. Darer sees demand for structured annuities topping $9 billion this year.

The reason for this growing demand is easy to see. Accident victims need a secure place for their settlement funds. Financial or political uncertainties could do real damage to stock portfolios.

Listen to your attorney!

When a child is involved, financial planning is completely different from ordinary investing. There’s often no room for error. While stock investments have the potential for growth, they can and do fall, bonds can be called, and either can result in serious economic risk for your child.

Your child’s health is at stake, and you need financial security. Even a well-diversified mix of stocks and bonds can’t offer the guaranteed tax-free income you get with a structured settlement annuity.

Retain experienced counsel

“It’s good that your reader is working with an experienced personal injury attorney who can recommend a structured settlement professional to help design a payment stream that matches his child’s future needs,” Darer said.

He offered some other important information to know about this process:

Your biggest benefit: peace of mind. Ponzi schemes hit a seven-year high in 2023, according to the website Ponzitracker.com. If you get a large cash settlement, you can expect friends, neighbors, distant relatives and swindlers everywhere to hound you for money. They will pressure you for help repairing their car, going to Las Vegas or investing in crazy get-rich-quick schemes.

If you are someone who can’t say no, then your protection and safety lie in a structured settlement annuity held by an insurance company that pays according to the plan you designed with your attorney and settlement consultant. That way, no one can pressure you to put your future at risk. You get what is paid each month — nothing less and nothing more.

Your payments are guaranteed by a state insurance fund. Insurance companies are regulated at the state level, and each state has an insurance guaranty fund. These funds provide minimum guarantees (up to $250,000 in most states) in the unlikely case your structured settlement annuity holder becomes insolvent. The concept is similar to how the FDIC guarantees the first $250,000 of your bank account. Often, large settlements are placed with several insurance companies, assuring adequate protection.

Payments are exempt from income tax. Under the federal tax code, 100% of your structured settlement payments are exempt from federal, state and local income taxes. They are also exempt from taxes on interest, dividends and capital gains. This is an especially big benefit if you live in high-tax states such as New York, California, Illinois, New Jersey and Massachusetts.

No ongoing fees. Advised to have a stockbroker manage your settlement for you? Get ready to pay and pay and pay. Advisers charge in several ways including flat fees, commissions and an annual percentage of your assets. You may not deduct these fees on your taxes. By contrast, there are no ongoing fees with a structured settlement. The professional you work with on your settlement receives a commission from the insurance company. You pay nothing.

Three additional suggestions

Finally, if you consider a structured settlement, here are three suggestions I can make as a lawyer who has represented accident victims for over 30 years:

Make sure your structured settlement consultant has a certification. The University of Texas, among other institutions, runs a certification program requiring graduates to demonstrate competency in insurance and financial strategies. “The program does a good job in promoting industry competence,” says Peter Arnold, a certified structured settlement consultant for 20 years. “It’s also been effective in freezing out people outside the structured settlement industry, especially financial planners and the settlement purchasing industry.”

Get annuity quotes in writing. Many solid insurance companies issue structured settlement annuities. Make sure your structured settlement consultant gets quotations on the annuity cost directly from the insurer and in writing. Do not rely on a defense attorney or their structured settlement consultant.

Insist on written disclosure of “backdoor” benefits to your broker. A shady underside of the structured settlement industry involves swanky trips and other benefits insurance companies put on for brokers to gin up business.

Several years ago, I wrote about Pacific Life Structured Settlements offering agents a trip to Dubai and the Maldives. In my view, these trips violate financial trust and the industry’s written code of ethics. Make sure the consultant you work with discloses in writing any benefits, including junkets, they have received from insurers during the past three years and may reasonably be expected to receive in the next 12 months.

In a future story, we’ll look at the perils of selling your structured settlement.

Dennis Beaver Practices law in Bakersfield and welcomes comments and questions from readers,
which may be faxed to (661) 323-7993,
or e-mailed to Lagombeaver1 – at – Gmail.com.

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