The Young Lawyers Section of The West Virginia Bar, headquartered in Charleston, West Virginia, has created a Wills for Heroes program for our fire fighters and police officers who put their lives on the line for us every day. Volunteer attorneys draft wills, medical power of attorneys, and durable powers of attorneys for first responders for free – see, lawyers are not all bad:-).  Statistics show that many folks do not have wills or any other form of estate planning.

When a loved one dies without a will, a tragic loss becomes even more difficult for survivors to bear.   Creating a will is a way to continue to offer support to our loved ones after we are gone.  There are a number of reasons why many resist creating a will, including facing the difficult prospect of death and fearing that a lawyer will cost more than they can afford.  Wills are generally not that expensive, and fortunately, for our police officers and fire fighters, an attorney will prepare their will at no charge.

The contact information of attorneys on the Excutive Committee of the Young Lawyer Section of the West Virginia Bar can be found at www.wvyounglawyers.com/executive_committee.html.   Feel free to contact them for more information on this wonderful program for our local heroes.

West Virginia Lawyer Information Services in Charleston, WV, offers free legal advice on a weekly basis.  Volunteer attorneys of The West Virginia State Bar operate a toll free hotline on Tuesday nights between 6 and 8 p.m. at the State Bar Center.  The toll free attorney hotline number is (800) 642-3617.

West Virginia Lawyer Information Services can be helpful in a number of situations.  For example, if you have suffered an injury or are the victim of an accident, sometimes it’s difficult to find a personal injury lawyer who will take your case if your injuries and damages are very small.  This lawyer hotline could be helpful if that is the case.  However, I would also be happy to offer you a free initial consultation regardless of how small your injuries are.  If I think you would be better served handling the claim yourself, I will advise you so.

Some other examples of when to take advantage of the free legal advice provided by the West Virginia Lawyer Information Services is if you think you may have a legal issue but are not sure.  A wise lawyer once told me, if somebody, some company, or the government did something to you that would make a jury mad, you probably have a case.  Of course, the law and good sense imposes some limits on that statement, but those are generally wise words to follow.  Additionally, some legal issues that don’t involve personal injuries, such as those involving landlord/tenant disputes, sometimes don’t justify the expense of hiring a lawyer.  In such cases, this service can help.

In summary, the West Virginia Lawyer Information Service in Charleston, WV is a fine service provided by the State Bar and its volunteer attorneys.  And best of all it’s free!  See, us lawyers aren’t all bad:-)  And again, if you’ve been injured in West Virginia, I’d also be happy to give you a free consultation.  Please click here to request a consultation.

“One call that’s all?” Personal injury “settlement mills” are blasted by Stanford Law professor Nora Freeman Engstrom in the Georgetown Journal of Legal Ethics.  “Run-of-the-Mill Justice” reveals some of the unscrupulous practices of “settlement mill” law firms and the dangers they present to unsuspecting people who have been injured and need a lawyer.

“Settlement mill” law firms are lawyers who “advertise aggressively, sign a higher percentage of callers to contract, delegate more duties to non-lawyers, file fewer lawsuits, and take far fewer cases to trial” than law firms and attorneys who practice with integrity zealously advocate for their clients.

The number of high-volume personal injury law firms that aggressively advertise and handle their cases often with little client interaction and without filing a lawsuit has increased significantly over the past thirty years. Settlement mills process tens of thousands of claims each year. Their ads have become a staple of late-night television and their obnoxious billboards have eroded confidence in the legal profession.

These settlement mills differ from conventional law practices because they tend to settle everything and use negotiators who lack “(1) first-hand information about verdicts obtained in comparable cases, (2) detailed information about the intricacies of the particular claim, and (3) the proven willingness and ability to take the claim to court.”

By Settling all cases – including catastrophic and wrongful death cases – cheaply compared to the value the cases would have at trial, the settlement mills lack the credibility to obtain a fair settlement for their clients.

Personal injury lawyers at settlement mills handle an extraordinarily high volume of cases. This prevents them from being able to spend sufficient “time engaged in legal research, investigating claims, and preparing pleadings.” The article reports that one Georgia settlement mill lawyer personally settled approximately 600 to 700 claims in a thirteen-month span.  That’s over fifty cases per month.  In other words, each month she ran fifty clients through her law firm’s settlement mill and settled about two cases per day.
Settlement mills often delegate client screening, legal research, drafting of pleadings, and even settlement negotiations to non-lawyers. Their clients many never even have the opportunity to speak with a lawyer before their case is settled.

Negotiations with insurance adjusters may take no more than ten minutes, and then clients are pressured to take whatever is offered.  These settlement mills prey upon uneducated and vulnerable people and rely heavily on TV advertising.

Since TV advertising lawyers are often looked down upon by lawyers and judges, they may no longer feel the need to do good work for clients in order to maintain a strong reputation among other attorneys and judges. If a lawyer relies solely upon heavy advertising to procure clients, their reputation, work product and relationships don’t matter as much.
These settlement mill lawyers negotiate claims on the basis of formulas that have little to do with the value of cases if they were taken to trial.  The article concludes that insurance companies like settlement mills because they settle quickly, cheaply and without litigation – even in catastrophic and wrongful death cases.  So the question is whose interests are these settlement mill lawyers serving?  Their clients?  The insurance companies?  Or their own?

Following are some ways to protect yourself if you need to hire a personal injury lawyer:  First, ask around about the lawyers you are considering to determine if they have good reputation among other lawyers and with past clients.  Second, it’s helpful to meet with several attorneys who offer free initial consultations.  That way you’ll get a better feel for your case and determine at the beginning how much of your case is going to be handled by a lawyer.  So, don’t be afraid to ask how much of your case will be handled by lawyers and how much will be handled by non-lawyers.  That’s a fair question and any personal injury attorney, in West Virginia or elsewhere, should not hesitate to answer that question.  If he or she does, that may be a sign to look elsewhere.  Good luck and please feel free to contact me with any questions.

– S. Brooks West II, Charleston, WV lawyer

As a West Virginia lawyer representing people with brain and spinal cord injuries, I am always seeking new treatment options that offer clients hope.

A new study at Children’s Hospital of Boston shows that deleting a gene that suppresses natural growth factors enables regeneration of injured nerve fibers (axons) in mice. Researchers found that suppressing the SOCS3 gene, an inhibitor of a growth pathway called mTOR — resulted in vigorous growth of axons and reactivation of nerve pathways.

Axons are an integral part of nerve cells (neurons). The functions of the brain and spinal cord, also known as the central nervous system, is of course primarily made up of neurons. This study suggests that the body’s inability, or unwillingness, to regenerate injured  nerve fibers may be more closely linked to genetic factors, which can be manipulated, rather than some inherent, physiological limitation stemming from the complexity of the nervous system.

Clinical treatment of humans with this genetic therapy may be a ways off, but it sounds promising and gives people with brain and spinal injuries hope.

CHARLESTON, W.Va. — Former Charleston lawyer and National Football League agent, Dante di Trapano was sentenced to one day in federal prison last Thursday after admitting that he falsified a 2005 loan application for half of a million dollars.

U.S. District Judge Thomas E. Johnston also ordered di Trapano to perform 1,000 hours of community service while he spends five years on supervised release.  The judge warned that if he re-offends or violates the terms of his supervised release, he can expect a lengthy prison sentence.

“You’ve been through this before, and you know the perils of not staying with the program and protecting your sobriety,” Johnston said. “You’ve been given a tremendous opportunity here.”

The former Charleston, West Virginia Lawyer and NFL agent has had a long history of legal problems attributed to drug addiction.  Di Trapano’s drug addiction and concomitant legal problems put the brakes on a promising legal career.  He was once an NFL agent to stars like Randy Moss.

The judge obviously recognized that this offense happened five years ago and that di Trapano has apparently made progress in dealing with drug addiction.  Do you think the former West Virginia attorney and NFL agent’s punishment was fair?

As a West Virginia injury lawyer, I know how important it is for a person who has been injured to recover compensation for their injuries as soon as possible.  However, attorneys must now carefully consider all Medicare liens on their client’s personal injury claims.  Medicare liens can limit an injured party’s settlement, and if not properly handled, Medicare liens can delay when a client receives his or her settlement check.

The United States District Court for the Northern District of West Virginia recently ruled that a plaintiff’s personal injury lawyer who did not timely reimburse Medicare after his client’s case had been settled may be held individually liable for the entire amount of the lien. See United States of America v. Paul J. Harris, Civil Action No. 5: 08CV102.  The Harris case involved James Richea who was injured when he fell from a local retailer’s ladder. Mr. Richea retained attorney Paul J. Harris to pursue a premises liability claim against the retailer for his personal injuries. Medicare paid approximately $22,500 for Mr. Richea’s medical care resulting from the fall. Settlement negotiations ultimately resulted in the case settling for $25,000.

Once an agreement had been reached, attorney Harris contacted Medicare with the details of the settlement. Based upon the amount of the settlement, the amount of the original Medicare lien, and the other costs and expenses associated with the case, Medicare determined that it was owed approximately $11,000 from the proceeds of the settlement. By statute, attorney Harris had 60 days from the settlement to satisfy Medicare’s lien. When he failed to do so, the U.S. government filed suit against him, personally, for the entire amount of the lien, plus interest and costs.

Attorney Harris filed a Motion to Dismiss, pursuant to FRCP 12 (b) (6), asserting that a lawyer cannot be held individually liable under 42 U.S.C. 1395 (b) (2) for unpaid Medicare liens when he distributes a client’s settlement funds with the prior knowledge and consent of the government. Because he had forwarded the details of the settlement to Medicare before disbursing the settlement funds to his client, attorney Harris argued that he could not be held individually liable for the lien.

The U.S. District Court for the Northern District of West Virginia disagreed, and denied attorney Harris’s Motion to Dismiss. The Court ruled that the Medicare Secondary Payer Statute (“MSPS”) gives the government the right to enforce its lien against the injured party’s attorney.  Because the government is authorized by statute to recover such payments from any entity, including an injured party’s attorney, the U. S. District Court denied Attorney Harris’s Motion to Dismiss. The court didn’t consider Medicare’s knowledge and consent of the settlement distribution to justify attorney Harris’s Motion to Dismiss.

This case serves as a reminder of just how serious lawyers and claimants must treat Medicare and Medicaid liens.  What this means for the non-lawyers and those who have been injured is that even though your case may have settled, there still may be a slight delay before you receive your funds while your attorney resolves any outstanding Medicare liens.   There shouldn’t be too much delay however because an effective personal injury lawyer will likely work with Medicare while negotiating with the defendant.  This will allow your attorney to know exactly how much Medicare is owed once a settlement or verdict is reached.  Your lawyer should then be able to distribute funds to you in a timely fashion, if not immediately.

Below is a helpful wikihow article that describes strategies to help avoid a car accident and what to do in the event that a car accident is unavoidable.  The article also provides other miscellaneous safety tips including issues to consider when purchasing an automobile.

A car accident is one of the most dangerous things the average person will come in contact with during his or her life. This guide is posted in the hope that it will help its readers avoid injury or death. It should be noted that every vehicle is different, and much of the information here (such as airbags) will not apply to those who drive vehicles from 1990 or earlier. The methods of avoiding an accident, and the position one should be in during a crash, however, are effectively universal.

Steps

Be prepared

1. Wear your seat belt. Wearing your seatbelt is one of the most important things you can do to survive a car crash. Make sure that your lap belt sits low on your hip bones and that the shoulder belt goes across the center of your chest. Children should be seated in proper child restraints until they are large enough to properly wear a lap and shoulder belt.
2. Drive a safe car which is fitted with seat belts and other safety features. Do not sit in a seat which has no head support. Older cars, which may just have lap belts and almost never have any additional safety features, are generally less safe than large vehicles. SUVs tend to be more prone to rollover accidents than cars. Try to drive the safest car that suits your needs and budget. The Insurance Institute for highway safety maintains extensive crash test ratings and lists of safe vehicles of different sizes and styles.[1]
3. Store objects such that they will not hit you if the car gets hit. If an object could become a projectile during a crash, either remove it from the car, or stow it in the trunk, or, in the case of a minivan, in the well behind the seat.
4. Make sure the safety systems on your car are serviced regularly. Airbags and seat-belts significantly reduce injury and death in automobile accidents.
5. Make sure your car’s engine, brakes, transmissions, suspension and tires are in good condition. The safest accident is the one you don’t get in; having your car in top running condition can help you avoid an accident or minimize harm in case you get in an accident.

Use good driving practices

1. Obey traffic laws and be conscious of current conditions. Adjust your driving if in heavy traffic or inclement weather. Sixty mph may be safe when it’s dry, but if a sudden rain falls, wetting the roadway and raising oil off the ground, it will probably be safer to drive at a lower speed.
2. Focus on what you are doing. While driving, avoid using cell phones, reading maps, eating and other distracting activities. If you are a passenger, sit up straight with your seat-belt fastened. Don’t lean your seat too far back, don’t put your feet up on the dashboard, and definitely do not distract the driver. Do not place objects on top of the air bag enclosure.
3. Anticipate potential problems. Observe the road looking for things that could end up causing an accident.[2]
   • Look ahead for cars or pedestrians that may move into your car’s path.
   • Keeping a safe distance behind other vehicles (following the “two second rule” ) can help you have enough time to react when a vehicle in front of you makes an unexpected move.
   • Stay away from distracted drivers (e.g., the guy on his way to work using an electric razor), tailgaters and other drivers engaging in risky behaviors.
   • Keep an eye on parked cars. They may pull out in front of you; people may exit from them or move from between them without much warning.

Avoid or minimize an accident

1. Stay calm. If an accident appears imminent, you need to respond quickly but smoothly. Vehicles of all types respond better to smooth steering and braking inputs.
2. Choose your course of action. You need to decide what combination of steering, braking and accelerating will best serve to avoid or minimize the harm from an accident.
3. Brake with control. Braking practices vary depending upon whether your vehicle has antilock brakes.
   • No antilock brakes – If your car lack antilock brakes, you need to pump the brakes to keep the car under control. If you slam on the brakes, your car will start to skid and you will lose control. You cannot steer a vehicle when the brakes are locked. Press firmly, then release. If you feel the tires start to skid release the brakes before steering.
   • Antilock brakes – Do not pump antilock brakes. Your car’s ABS computer will pulse them much faster than you can (you will feel the pedal vibrate a bit when this occurs). Just hold the brakes firmly and steer normally.
4. Steer smoothly. – Very jerky motions of the steering wheel, especially with heavy vehicles or those with light rear ends (e.g., pickup trucks) are likely to lead to skids.
5. Accelerate if needed. Although it seems counterintuitive, sometimes the best way to avoid an accident is to speed up and get out of the way.
6. Take steps to recover if you start to skid or lose control. If your car starts to skid or if a tire blows, follow these steps to control the car.[2]
   • Don’t hit the brakes. This will only make things worse.
   • Keep a firm grip on the wheel.
   • Steer in the direction of the skid. If the back of your car is sliding to the driver’s left, turn the wheels to the left.
   • Wait for your tires to regain traction before braking or pressing the accelerator.
7. If a crash is unavoidable, try to minimize damage.
   • Avoid head-on collisions into other vehicles or front-end collisions into immovable objects like large trees or concrete barriers.
   • Do as much as you can to control your car’s speed. The faster the impact, the more damage it will cause.
   • Avoid side impacts. Serious injury is likely to result if another car strikes your car on the side where it is much weaker structurally.
8. Call emergency services after a crash. Apply first aid if needed. Do not attempt to removed injured people from a vehicle. Explosions are very unlikely, and you could aggravate any neck spinal injuries, even if the victim feels uninjured.

Tips

• Be sure to exchange information with others involved in the accident and get information from eyewitnesses.
• If you are purchasing a new vehicle, be sure to note the standard and optional safety features, such as where and how many air bags come with the car. Research crash test results, and consider built-in monitoring services such as General Motors’ OnStar system. These can notify emergency personnel of an accident.

Warnings

• Do not bend over or cover your head. In the event of a roll over, any force significant enough to warp in the roof and bend or break the A-beams might hit your head, and possibly knock you unconscious. It is unlikely to do nearly as much damage as that caused to your neck from having your head in front of the air bags when they deploy.

Sources and Citations

1. ↑ http://www.iihs.org/ratings/default.aspx
2. ↑ 2.0 2.1 http://www.berkshire.net/traffic.safety/accident.htm

Another tip I’d like to add is that if you’re involved in a car accident, it’s usually best to contact a personal injury lawyer as soon as possible so that they or one of their investigators can investigate and photograph the accident scene while there still may evidence present at the scene.  An effective car accident attorney will also want to interview eyewitnesses as soon as possible because memories fade and people move.  Please comment below if you have any other tips or suggestions that may help others avoid or survive a car accident.

When a parent, spouse, child, or sibling has been killed in an accident, the loss is sudden and devastating. In addition to pain, grief, and emotional loss, family members must also deal with facing life, both emotionally and financially, without their loved one.  An experienced personal injury lawyer can help family members make sense of the legal and financial aspects of their loss.  Below is a brief discussion of wrongful death claims in West Virginia including who may be entitled to compensation and for what losses.  At the bottom of this article are links that may help some deal with the emotional challenges losing a loved one presents.

Wrongful Death Claims – Who Is Entitled to Money Damages?

Whenever the death of a person is caused by the wrongful act, neglect, or default of another, then a personal representative of the person who died can bring an action for wrongful death.  In West Virginia, a jury may award money damages to the decedent’s surviving spouse, children — including adopted children and stepchildren, brothers, sisters, parents, and any other persons who were financially dependent upon the decedent at the time of his or her death.   If you’re unsure whether you are entitled to compensation under West Virginia law, contact me or another experienced personal injury attorney to discuss your potential wrongful death claim.

Wrongful Death Compensation

In a West Virginia wrongful death case, compensation may be awarded for the following: (1) Sorrow, mental anguish, and solace (which may include society, companionship, comfort, guidance, kindly offices and advice of the decedent); (2) compensation for the reasonably expected loss of income of the decedent and for the loss of services, protection, care and assistance provided by the decedent; (3) expenses for the care, treatment and hospitalization of the decedent; and (4) reasonable funeral expenses. W. Va. Code § 55-7-6.

Below is a list of supportive resources that I hope is helpful to those who have recently lost a loved one.

Support for coping with the death of a spouse.

How Social Security Can Help if a Family Member Dies.

Grief Support, Huntington, West Virginia.

Numerous studies show cell phones are a leading cause of car accidents. One such study estimated that drivers talking on cell phones are four times more likely to be in a car wreck. According to a Harvard University study, cell phones cause over 200 deaths and half a million injuries each year.

Many states have enacted laws limiting or prohibiting cell phone use while driving.  For example, some states require that a hands-free device be used while driving.  However, West Virginia does not have any state-wide cell phone laws.  In fact, it’s perfectly legal in West Virginia to drive while text messaging or even emailing on a Blackberry or iPhone.  That’s  pretty scary considering many of us have problems sending an email from the comfort of our home or office.

Despite the fact that West Virginia has no state-wide cell phone laws, there can still be serious legal consequences for driving in West Virginia while talking on a cell phone.  For example, if you’re involved in a car accident and one of the drivers was talking on a cell phone, you may be able to present evidence of that fact to the jury.  Evidence of that the driver was using a cell phone while driving may help prove the driver’s negligence and win your case.

Cell Phone Records

The issue then becomes how to prove the other driver was talking on a cell phone at the time of your car accident.  One of the best ways is use the other driver’s cell phone records.  Cell phone records show the date, time and duration of all calls made or received from a cell phone.  Of course, the same legal rules apply to you if you decide to use a cell phone while driving.

Thus, to protect your legal rights and most importantly your life, you may want to think twice before driving while talking on a cell phone.  If you decide that you must use a cell phone while driving, you may want to consider a hands-free device.  If you’ve been injured in an accident and would like more information about how to obtain and use cell phone records to win your personal injury claim, CONTACT me.

Note: Although West Virginia has no general state-wide cell phone laws, West Virginia – thankfully – does prohibit drivers with learner’s permit from using a wireless communication device while operating a motor vehicle (except in an emergency).

All Employers have a duty to provide their workers with a safe work environment. In West Virginia, if an employer breaches this duty and an employee gets injured as a result, that employee may be entitled to money damages in addition to Worker’s Compensation benefits. Workplace injuries and accidents can devastate a family, both financially and emotionally. Workers’ Compensation benefits are designed to provide temporary financial assistance but are grossly inadequate to support a family when the injury is serious or involves a fatality. Fortunately, in West Virginia, an employee may be able to recover additional compensation in a civil suit for damages if he or she was injured as a result of their employer’s “deliberate intent.”

Deliberate Intent and Workplace Accidents

In West Virginia, an injured worker can prove deliberate intent in one of two ways. First, an injured worker may recover money damages if he can prove his employer deliberately injured him.  The more common way to win a deliberate intent claim is by proving five statutory elements. The five statutory elements of a deliberate intent claim are as follows:

(a) That a specific unsafe working condition existed in the workplace which presented a high degree of risk and a strong probability of serious injury or death;

(b) That the employer had a subjective realization and an appreciation of the existence of such specific unsafe working condition and of the high degree of risk and the strong probability of serious injury or death presented by such specific unsafe working condition;

(c) That such specific unsafe working condition was a violation of a state or federal safety statute, rule or regulation, whether cited or not, or of a commonly accepted and well-known safety standard within the industry or business of such employer, which statute, rule, regulation or standard was specifically applicable to the particular work and working condition involved as contrasted with a statute, rule, regulation or standard generally requiring safe workplaces, equipment or working conditions;

(d) That notwithstanding the existence of the facts set forth in subparagraphs (a) through (c), such employer nevertheless thereafter exposed an employee to such specific unsafe working condition intentionally; and

(e) That such employee so exposed suffered serious injury or death as a direct and proximate result of such specific unsafe working condition. Workplace accident law is one of the most complex areas of West Virginia personal injury law.

Deliberate intent cases are generally more complex than common law negligence cases.  This is intentional because the Worker’s Compensation system is meant to insure both employers and employees.  Employees are insured in the event they’re injured and unable to work, and employers are insured from the financial liability that typically arises from such injuries absent the statutory protection the Worker’s Compensation system provides.    As mentioned above, however, it has been my experience that West Virginia Worker’s Compensation benefits do not fairly compensated workers who are injured on the job.  In fact, many West Virginia lawyers have abandoned Worker’s Compensation practice because it has become so unfair to workers that it’s frustrating to handle such cases.  Contrary to popular belief, many lawyers have a heart and find it difficult to see their clients suffer without any fair legal remedy available.

Because of the complexity of deliberate intent claims, it’s important to involve a personal injury lawyer who is experienced in workplace accident law as soon as possible following a workplace injury.  Each of the five elements above present additional issues that I’ll address in future posts.  I invite you to leave comments or contact me if you have questions or opinions about West Virginia’s approach to Worker’s Compensation and employer immunity.

West Virginia Personal Injury Lawyer