Misperceptions of the Law

I am always amazed that many hard working Americans do not appreciate that the legal system offers them a tool to have their case decided fairly. Instead the concerted effort to paint the legal system as some sort of legalized gambling tool used by frauds to make slick "trial atttorneys" rich has become a main stream belief. Based upon that misperception many citizens are actively fighting the battles waged by major corporations to tip the scales of justice in favor of insurance companies and businesses and away from individuals.

A more thoughtful analysis of the issues can demonstrate where people are often misled. For instance, the primary concern of most people seems to be that attorneys make too much money on the cases. Although I believe this is a statement genuinely believed by some, it appears to lack an understanding of the amount of time and expense spent on cases, and that attorneys may work for 2 to 4 years or more on a case (such view also ignores the contingency fee arrangement that has attorneys compesnation tied to how successfully they can handle their client's case but conversely risking not getting paid at all). Regardless, persons having this view, one would presume, have heard of the exceedingly rare instances in which class action suits result in Multi-Million dollar fees. Althoug, I would contend that most "trial lawyers" make far less than people assume, the logical answer for those that do believe that they should regulate how much attorneys make is of course to cap attorneys' fees at a number that allows for these cases to be brought, and compensates the attorneys for this specialized knowledge and risk, but is also reasonable and not excessive. However, this is not the solution offered. In fact, the solution puhed by insurance companies and picked-up by some well intentioned citizens is to cap Damages (the amount which the client is awarded in the case) -not to directly cap attorneys' fees. - This is like refusing treatment to a patient because you don't want the doctor to make any more money. There is simply no reason the "solution" can not be more narrowly tailored to accomplish the goal, except that the group pushing these "reforms" has different goals than the citizens they have convinced to support their cause. This is a great result for insurance companies and at-fault hospitals and businesses because they now do not have full liability for their negligence or other misdeeds. End game of these reforms is that they deny injured persons full compensation from the wrong-doer and in some cases deny citizens access to the legal system.

Do I have a case?

Giving free consulations for most type cases has always been my policy as I like to let you know what I can do for you, if anything, before I charge you. I wish everyone had this policy. Every now and then, during a free consultation, I hear a familair case. The facts of their particular situation vary but the stories often follow a familiar theme. The person had gone to a store, restaurant, hotel or public facility and while there they were treated badly by the staff or employees. Sometimes these stories involve a slip or trip and fall, but the fall is only incidental to what is seen as the true offense, which is the ill-mannered manager, clerk or security guard. Very often these people are still fuming over the incident even though it may have been weeks before coming to see me and even though they suffered little or no physical or monetary loss.

My advice to these folks is very often to contact the better business bureau and to not return to the establishment. However, I am also direct to let them know that I do not believe it wise to pursue the matter through litigation, if that is in fact my conclusion. While it is always wise to seek a second opinion, many times, hurt feelings have little remedy under our legal system and any remedy that is available is often not worth the financial output.

Every case must be evaluated on its merits and our law does allow for claims for defamation, certain emotional distress and harassments. However, my job as an attorney is to give each consult as honest and accurate evaluation as possible. Our system also, fortuantely, allows me to decide to refuse to take cases I do not believe warrant litigation, and I have done so in the past. My experience is that, while there may be some people out there trying to game the system, most people respond well to a fair and honest evaluation of their claim.

Accident investigation -Self-Help

One of the first things that most attorneys will want to obtain in investigating an auto accident is the South Carolina Traffic Colission Report, or Accident Report, filed by the investigating police officer. Depending on which police agency investigates you may have different option in obtaining this quickly.

If you, or a family member, are in an auto accident you should receive a copy of Form FR-10 from the responding officer. You can use the information on this form when you seek to obtain a copy of the Police Traffic Collission Report. The South Carolina Department of Motor Vehicles offers some online resources to facilitate a request for the Report. The Request forms can be found at: http://www.scdmvonline.com/dmvnew/forms/FR-50.pdf along with instructions about the fee and where to send your request and some informational pages such as: http://www.scdmvonline.com/DMVNew/default.aspx?n=accident_reports.

Links, such as Online "Public Services" https://www.scdmvonline.com/dmvpublic/ can assist individuals to collect information and to do things from address changes to obtaining duplicate licenses.

Review you Auto Insurance Policy Today!

Over the years I have had to tell dozens of my personal injury clients that their medical bills far exceed the at-fault drivers' auto insurance policy limits. In those situations, as their attorney I will search for additional coverage, review the tortfeasor's personal assets and if possible, negotiate with the healthcare providers to reduce their costs, but there is a much more simple answer... UIM!

UIM stands for UnderInsured Motorist Coverage and it can protect you from the negligence of others. Why is this important? Suppose you are hit by a drunk driver and spend 2 weeks in the hospital, needing surgery, physical therapy and a course of medication. Your medical bills will easily be tens of thousands of dollars. Todays auto insurance minimum limits in South Carolina are $25K per person/$50K per accident for personal injury. But regardless of how much, or how little, coverage the at-fault driver has, you are still responsible to the Hospital. If the auto coverage is not sufficient, you are still responsible for the rest, and statistics show that a huge percentage of bankruptcies are now caused by healthcare bills.

In addition, Healthcare insurance may not cover this type of claim (check your healthcare policy) and even if it does, your healthcare insurance will most likely provide nothing for property damages, lost wages, pain and suffering, bodily impairment and other such claims that are the responsibility of the at fault party in South Carolina.

This is where UIM comes into play. UIM is relatively cheap and pays for the damages which surpass the insurance coverage of the at-fault driver. Although there are certain requirments about the amount of coverage you can obtain, you should consult a trusted insurance agent to maximize this coverage. An additional $100K or even $500K of coverage is often much more affordable than you think and the access to that coverage can make an enormous.

Do not expect the other driver to be looking out for your interests...get UIM coverage today.

Pushed to File a Claim

A great percentage of my clients only come to me after becoming completely frustrated with the Insurance company that is adjusting their claim. Whether it is a home fire or an auto accident, the claim usually begins on friendly terms, but at some point many people become frustrated at the adversarial, inefficient and sometimes hostile response they receive from the insurance company that is supposed to be covering them for the injuries they have received.

Many of my clients decide to hire an attorney as a last resort, when their health and the mounting costs of healthcare put them in a severe financial crisis if they are unable to get the responsible party's insurance to cover the claim. The insurance company has the luxury of time, but the injured person often does not. Without healthcare many people can only afford a few trips to the doctor, and the insurance companies can often deny the claim in order to get the treatment to end. Conversely, the lack of treatment is often used by the Insurance Companies against an injured person to deny the severity of the injury later. Without the means to get the needed treatment, many people are pressured to compromise their claim, their health and often their futures. The Insurance Company may offer an inadequate and unfair amount of quick money that claimants feel pressured to accept just to meet their pressing expenses. It is often at that point that people that have never dreamed of filing a lawsuit will call an attorney.

If you have an injury from an accident contact an attorney to assist you. Don't wait, but find an attorney that you can trust and one that will tell you honestly what you should expect and whether you need an attorney.

Workers Compensation in South Carolina

Worker's Compensation in South Carolina offers a variety of benefits for injured workers. Often these benefits are available regardless of how an accident occured as long as it is a workplace injury. However, certain time limitations exist which madate that the Employer be given Notice of the injury and which govern how long an injured person has to make a claim.

In 2007 the State Legislature produced an Act which made several changes to the Workers Compensation system here in South Carolina. Certain body parts, previously unspecified, were assigned a number of weeks for loss of use (the shoulder at 300 and the hip at 280 for instances). In addition, certain requirements were enacted effecting the presumption of disability and the technical requirements for filing a claim. (See my earlier Blogs for more analysis)

For more on the South Carolina Workers Compensation please see the link to Workers Compensation on my website at http://www.attorneymcdaniel.com/ and visit the South Carolina Workers Compensation Government page which you can link to under the "Attorney Resources" Tab on my website.

Now Law Office of Brian McDaniel, LLC

After 9 years of legal practice I have opened my own office - Law Office of Brian McDaniel, LLC. My new web site address is http://www.attorneymcdaniel.com/. My practice will focus on civil litigation, including personal injury, workers compensation claims and trial practice.

My telephone and address will stay the same.

Buyers Market for Beaufort Homes

As the real estate market here in Beaufort County slowly begins to rebound, many homeowners are reconsidering refinancing or taking out home equity lines of credit. Interest rates have remained low and for many folks it is a good time to get out of a variable rate mortgage or an interest only credit situation. Also, many savy buyers are scooping up nice homes and properties at rock bottom prices as homeowners continue to try and avoid foreclosure. Remember, if you are considering a home purchase, have an attorney draft, or at least review, the contract you intend to use. South Carolina law requires that an attorney close all land secured loans (including equity lines), but many people make the mistake of contacting their attorney after they have already signed a contract.

As an update (June 8, 2009)- There are some signs that the market has made improvement, but many buyers seem to be struggling to obtain financing. However, banks and homeowners of all types remained motivated to sale.

Online Lawyering

For many years the advancement in technology has been shunned by many member of the legal community. This has probably occurred for a variety of reasons including, the perceived cost, a lack of understanding, fears of security and simple inertia. Fortunatley, cost effective software, gadets and technology driven services are becoming more accessible and tailored to the law office environment.
For instance, the South Carolina state Bar now supports the use of off-site data storage through internet based back-up service -specifically CoreVault. This service, and those like it, offer automated back-up services with enough capacity available to back-up a firm's computer data everyday, if desired. These services can go back to specific dates to recover lost or damaged data and are sophisticate enough to store only data that has changed in order to maximize server storage space.
With the ever increasing pace of technology, for a law firm to keep current, technology must be a priority. But the rewards and benefits make it worth the effort.

Great Leaping Fugitives!

Amazing photo of fugitive attempting escape. Story continues that photographer tackles and holds the fleeing man until police can come get him.

(AP Photo, Sun Journal, Russ Dillingham)

Arbitrating vehicle damage claims in SC

Recently I was part of a 3 person arbitration panel called to hear a property damage dispute. 38-77-730 of the South Carolina Code allows for any person who is party to a disputed property damage liability claim to submit that claim to arbitration. To make such a request, it would be necessary to get the request form from the Clerk of Court in the proper County, complete the form, and return it with a small fee ($5.00) to the Clerk.

I have seen this system work well when insurance companies are refusing to pay for damage, depreciation, loss of use or other property related damages for which the claimant has solid evidence to support. Although some Insurance companies will oppose even well documented claims, many insurance companies will, at that point, pay a legitimate claim rather than pay their attorney to oppose it in arbitration.

Although the property damage arbitration allowed by South Carolina law can be effective, because of the full and extenisve appeal which is available, it is not going to resolve every disputed claim. Even for small claims it is wise to consult an attorney early and often.

Changes in South Carolina Workers Compensation Laws

On June 25, 2007 some significant changes to the South Carolina Workers Compensation system were signed in to law by Governor Mark Sanford. In general the changes create broader rights for Employers and a greater bruden for workers/claimants to receive compensation for their injuries. For instance, the Employers rights to communicate directly with the workers doctors is increased significantly while the previously held presumption that a worker suffering a 50% or more loss or disability to the back is totally disabled is now challengable and can be rebutted by the Employer/carrier.

Other changes to the system include making the shoulder and the hip "scheduled members" and eliminating the Second Injury Fund by 2013. Most provisions of the law go into effect for claims arising on or after July 1, 2007.

If you have an injury from a work related accident or are not sure whether your injury is covered, speak to a knowedgable attorney today. Don't wait. http://www.attorneymcdaniel.com/