Frequently Asked Questions

Should I hire an attorney?
What to do if I am in an automobile accident?
Should I pay for insurance when I rent a car?
Do I need a written contract to have a legally enforceable contract?
What should I do if I am disabled and cannot get access to a governmental program, facility, service or into a privately owned building?
What is the difference between a class action and mass tort?
What if I took a dangerous product but haven’t developed any injuries or diseases?
Should I hire an attorney?

Getting injured in an automobile accident, divorced, foreclosed, arrested, and numerous other regular aspects of life present the question-should I hire an attorney. Typically, consultations are being offered for free in many areas of the law. So why not get a consultation or two from a qualified attorney. Lawyers are required to answer questions about their qualifications and experience, so don’t hesitate. Oftentimes, certain issues in life are not severe. Small fender benders, divorces without children or property, bankruptcy with few assets or debts are oftentimes matters that some non-lawyers can successfully handle. Other times, the results can be very devastating. So go alone with extreme caution.

What to do if I am in an automobile accident?

First, secure yourself and loved ones. Safety is first and foremost. The initial accident might produce other accidents with other vehicles.

a. Safety. After securing yourself, there is no hard and fast rule about what to do next. Is the vehicle that you are involved in the accident fleeing? Is there an urgent safety issue that you might want to explore? Trying to save someone else, might result in you getting seriously injured or even sued (if you somehow or another take action that is negligent, even if it was your best intention). These issues require split second judgment and you really need to decide for yourself how to proceed during the initial moments when certain things are taking place rapidly. Do you want to risk your life saving someone you don’t know. Only you can decide.

b. Locate, secure, and pull out the cellphone. Once you can, getting the cellphone would be top of the list, particularly if your phone has a camera and/or video capabilities If the other vehicle is fleeing away, you might want to either snap the photo or enter the license plate number and/or vehicle description.

c. Report accident to 911 as soon as possible. If you have flares or other warning lights, you might want to place them around the scene to try and alert other vehicles.

d. Photograph anything that you think is important as soon as possible, including the point of impact on all vehicles involved, the vehicles’ landing spot, damage to the vehicles both inside and outside, deployed air bags, cracked windows, and anything you think might be important (including the passengers in the other vehicle). Take several photographs from several angles. I suggest photographing the surrounding areas, to show the location. If you think that there might have been something about the road or the area that caused/contributed to the accident scene (like construction, trees blocking a stop sign, or malfunctioning lights), you should photograph or document those items. Any photograph that helps in any way demonstrate the cause of the accident might want to be taken.

e. Fault. If you are at fault, you will have to decide whether to take photographs or not, as the photographs might help save you substantial money or might demonstrate the extent of the damage to the other individual(s). There is no hard and fast rule and common sense should dictate what you do.

f. Photograph bodily injuries. If you or others are injured, cut, bleeding, or have abrasions immediately after the accident, take good quality photographs of the effected areas. Any visible injuries that show up a day or so later, including swelling should also be photographed properly.

g. Other driver(s).Whether and when you speak with the other driver is your decision. Courtesy and concern might go a long way toward resolving whatever issues might arise. If you do speak with the other driver, don’t be so quick to admit fault, note the amount of passengers and try and determine any damage to the other vehicle, inside or outside. You might want to video items, including comments made by the other driver or the others in the other vehicle.

h. Speak with police. Make sure they understand your story but don’t interfere with the officer’s duties to investigate. What you say with the officer at the accident scene is privileged. If there are inaccuracies with accident reports, like-a passenger was not listed, you must take the proper steps to get the accident report fixed.

i. When to speak with an attorney. If it was me, I’d call one as soon as I could from the accident scene to get proper advise. If the accident is significant (for example, a roll over or a severe injury), the attorney might come to the scene as well to begin investigating and preserving any evidence.

j. Medical treatment. Some people feel the need to go to an emergency room following the accident. This decision is something that you need to make on your own. The ER might result in a long wait, a quick evaluation by a nurse, physician’s assistant, or other non-Medical Doctor. Most likely, Xrays will be taken and the hospital will release you with some pain medications, splints, or other small types of treatment. Some people choose not to go to the ER. Oftentimes, the pain from an injury does not come about for a day or two. If you have Personal Injury Protection insurance, you can get some treatment at accident clinics, or other medical providers. However, you need to present yourself to these medical providers within 2 weeks of the accident, or you might lose coverage.

k. Ticket. What if you get cited but you feel that the other side was at fault or partially to blame or something else caused or contributed the accident. There are many qualified traffic ticket attorneys. You should get a consultation with one of them to see what, if any action, you should take regarding your ticket.

l. Insurance issues, including repairing vehicle and towing vehicle away. You should report the accident to your insurance company immediately. They might be able to help get your vehicle towed and start dealing with the damage to your vehicle. Whether you vehicle is declared a total loss or whether your insurance company will pay for the damage to your vehicles, are items which handled typically in a fair fashion. Careful not to leave your vehicle at another location without knowing whether you will be required to pay for the storage.

Should I pay for insurance when I rent a car?

A rather tricky answer that requires that you know what your insurance coverage covers, what your credit card covers and requires, and other items. To get an indepth video analysis, including how to review your own insurance coverage, please check out my website for my short series on this discussion that few people seem to know at the moment of truth.

Do I need a written contract to have a legally enforceable contract?

The laws on contracts are governed by each State. In Florida, a contract does not need to be in writing for it to be enforceable. As long as the requirements for a contract are in place, generally there need not be something in writing to make the agreement enforceable. Certain contracts do need to be in writing. For example, a promise to pay a debt barred by the statute of limitations needs to be in writing. Additionally, certain agreements that take longer than one year to perform also need to be in writing. If you do not have the contract in writing, this might present you with a problem if you need to go to court to enforce the contract. First and foremost, how are you going to prove what the terms are if there are not in writing. So while many find that the hand shake is their preferred method, you might want to think about such approach for every situation. Also, just because you do have a contract in writing does not mean that the way it is written will support your position regarding what you think the contract means. There are many other issues that arise in the context of forming an agreement with someone/thing and my recommendation is to get a competent attorney to guide you along the way.

What should I do if I am disabled and cannot get access to a governmental program, facility, service or into a privately owned building?

If you are denied access, you should immediately try and rectify the problem. Many governments or large employers have people that are responsible for handling these types of issues. Oftentimes, they are called ADA Coordinators. Try and see if the ADA Coordinator will make the necessary accommodation to enable you to have access to whatever is accessible to the non-disabled. If the problem is large enough, most States and the Federal Government have agencies that can help. The United States Department of Justice has a division that will accept complaints for civil rights violations, such as the rights under the Americans with Disabilities Act. If the problem is big enough, you might want to consult with a private attorney to get more attention.

What is the difference between a class action and mass tort?

When a lot of individuals are injured by one product or device, whether it be a vehicle that has a brake system that does not work or a prescription drug that causes cancer to the user, the question as to whether those cases will be a mass tort or a class action can perplex even many attorneys. Sometimes, you might see both a class action and a mass tort arising from the same set of circumstances.

A class action or mass tort usually comes into existence when there are many individuals that are injured economically or physically from either the same incident, product, or conduct. Usually, there is one defendant that is responsible for the incident, product or conduct.

Most cases break down into two general parts-liability and damages. So for a plaintiff to win, they must show that the defendant is liable and that such liability caused the plaintiff damage.

Liability refers to question of whether the defendant did anything legally wrong. The defendant could have manufactured a defective product that causes cancer or heart problems. Or the product might not have worked as it was supposed to work. Think of the vehicle with a brake system that does not work at all and results in 100s or 1000s of people having accidents due to a brake system that does not work. Often you will hear that a defendant was negligent. Negligence is one way that a defendant can be liable. Negligent conduct can arise from a defendant violating rules, regulations, or standards of care. Sometimes you will hear that a defendant was negligent for failing to warn its customers how to use a product or that a product will cause harm if not limited in usage. There are other ways for a defendant to be liable.

Damages refers to the actual injury that is caused to the individuals by the negligence or wrong. Damages essentially consist of the economic and physical and emotional injuries the individual suffers due to the wrongdoing of the defendant. Two examples of economic damages are medical expenses and lost wages that are caused by the liability or wrongdoing. Physical and emotional injuries generally relate to the illness, disease, injury, scaring, disfigurement and pain and suffering.

Sometimes, a defendant can cause just economic damage. For example, if a credit card company is improperly charging fees to all of its customers, that would amount to a case where there is no physical injury, just economic. Other times, a defendant’s wrongful conduct can cause both economic and physical damages. For example, if a pharmaceutical company makes and sells a diet drug that causes its customers to have heart attacks, the person suffering the heart attack might have medical bills and lost wages, in addition to the physical damage caused by the heart attack.

In both the mass tort and class action case, liability is typically the same issue in each case. Federal and State laws set forth the criterion for when a case is a class action or mass tort or just a regular individual case.

The class action oftentimes starts with one or a few lawsuits filed by one or a few persons who tries to convince the Court that that person is part of a group of others that were all damaged in a similar way by the same wrongdoing of a defendant. In class actions, the person must convince the Court early on in the litigation, among other things, that there are several others just like themselves that have been damaged by the defendant’s wrongful conduct. The conduct could be one wrongful decision that the defendant is applying to a large group of individuals. By and large, most class actions are limited to economic damages.

In the mass tort world, you have the same scenario where the wrongful conduct by the defendant injuries or damages a large group of people. In the mass tort scheme, a typical scenario will have lots of individuals filing lawsuits all across the country. Once enough individuals file enough of the same type of lawsuit, the federal courts are empowered to consolidate all those cases in front of one Judge. In most lawsuits, there are many issues that the Court needs to deal with before a trial. In the mass tort context, the Court that has control over all the consolidated cases will set up a procedure to deal with all these issues uniformly, instead of dealing with those issues case by case. So in that sense, a mass tort case is identical to the class action, where you have one Judge handling all the issues before trial.

In the class action world, the Court that has jurisdiction over that class action will conduct one trial that will determine the result for all the individuals in the lawsuit. If the case is settled, there would generally be one settlement that applies to all people in that class action. Once the case is settled, the individual is typically alerted to the settlement and has the right to reject it and take control of their own case. In the mass tort context, the Court will select which of the cases that it consolidated go to trial first. When the Court selects the cases that go to trial, those cases are then sent back to the Court where it was originally filed and that Judge will conduct that trial. The result of that trial does not control the other cases.

The idea behind the mass tort scheme is to let one Judge rule on all pretrial issues just one time which applies to all individuals that are part of that consolidated mass tort action. At some point, the Judge control the mass tort action, will select individual cases go to trial. Those cases are sent back to their original Court where it was filed and that Judge will conduct that trial. The results of that trial only affect that particular person’s case. Oftentimes, once enough of these cases have gone through trial and appeal, settlement over all (or many) of the other cases is more likely.

What if I took a dangerous product but haven’t developed any injuries or diseases?

One of the big questions these days is what should someone do if they have been exposed to a toxic or dangerous substance and they are certain that they will develop a horrific injury, such as cancer. For example, people living near incinerators, those who have found out that the building they have been working at is filled with asbestos, or teenagers who started smoking JUUL may be at greater risk for certain health conditions than those who did not experience such exposures. Medically speaking, these individuals need to monitor their conditions in order to try and prevent or properly treat the condition if and when it arises.

For some folks, however, the cost of medically monitoring their condition might not be feasible. In the case of those living in impoverished areas near an incinerator that is spewing toxins out, oftentimes beyond what is permitted, the situation can be particularly distressing. Moving away might not be an option.   Paying for testing to see if the condition is developing or has arisen also can be beyond the means of many.

The Civil Courts are basically designed to address wrongs and compensate the injured for their losses. However prior to the late 1980s, the Courts would typically dismiss dangerous exposure types of lawsuits as the plaintiff had not actually suffered an injury. The United States Constitution set forth the basic schema for our Courts essentially limiting them to addressing live actual cases and controversies, not future or hypothetical ones. Over the decades, certain fact patterns arose that did not fit within that structure as in the case of people who knew that they were going to have their rights violated or perhaps were exposed to a toxic material but had not yet developed an injury. These scenarios basically have been referred to as speculative.

In the late 1980s, several Courts began to recognize what is called a claim for medical monitoring to address some of these scenarios. In these types of claims, a plaintiff needs to show that they were exposed to a dangerous substance at greater than normal background levels, that the substance is dangerous, that the exposure was the result of wrongful conduct of a defendant, and that there is a significant increased risk of contracting a serious latent disease. Unlike most civil cases, the medical monitoring claim in and of itself does not request monetary damages for injuries or medical expenses. Medical monitoring claims typically are brought as class actions and the claim requests that the Court require the defendant to pay for the costs to medically monitor the health of the individuals with respect to the problems that can arise from the dangerous exposure.

If a particular person from the class does eventually develop the injury or illness, they can still file a lawsuit requesting compensation for their injuries, including any medical costs that they will need in the future to treat their condition.

As news of the JUUL debacle have made its way to the public, there is already one medical monitoring class action that has been filed. The damage from vaping can arise years from now. Included in such types of injuries are cause serious lung problems and other possible serious conditions. Damage from the vaping can be assessed by advanced pulmonary function testing and other testing.

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