ABA GP Solo TORT AND INSURANCE COMMITTEE NEWSLETTER Summer 2008
ABA General Practice, Solo and Small Firm Division American Bar Association
Chair: Patricia Sexton, Kansas City
Kenneth Vercammen, Esq. Deputy Chair & Editor
In this Issue:
1.What to Expect in a Personal Injury Case
2. 486b TRUSTS By Thomas D. Begley, Jr., Esquire
3. Useful Personal Injury and Civil Litigation articles added to website http://njpersonalinjurylawcenter.com/:
4. WE PUBLISH YOUR FORMS AND ARTICLES
1. What to Expect in a Personal Injury Case
Compiled by Kenneth A. Vercammen, Esq
The procedures in a Plaintiff personal injury case may take from six months to several years, and a client’s patience may be sorely tried during this time. However, it has been our experience that clients who are forewarned have a much higher tolerance level for the slowly turning wheels of justice. The following a is portion of the details you may wish to inform your new personal injury clients after you have been retained:
Procedurally, the following events occur in most personal injury cases. First, your Attorney must complete our investigation and file. This will involve the collection of data from your physician, your employer, and our investigator. When we feel that we have sufficient information to form an opinion as to the financial extent of your damages, we will commence negotiations with the opposition for a settlement.
Filing of Complaint
If early settlement is not productive, then a complaint is filed, and the parties
served with notice that a claim has been made. The opposition then is given a fixed time to file what is known as an "Answer." The Answer if usually followed by a request for written interrogatories. These are questions that must be answered by the claimant with the aid of counsel. Generally, written interrogatories are followed by the taking of depositions, which is recorded testimony given under oath by any person the opposition wishes to question.
Doctor/ Treatment
It will help your case to tell us and your doctors about any injury or
medical problems before or after your accident. Good cases can be lost by
the injured person's concealing or forgetting an earlier or later injury or
medical problem. Insurance companies keep a record of any and all claims
against any insurance company. The insurance company is sure to find out if you have ever made a previous claim.
Tell your doctors all of your complaints. The doctor's records can only be
as complete as what you have given. Keep track of all prescriptions and
medicines taken and the bills therefore. Also save all bottles or containers
of medicine.
Diary
You should keep a diary of your experiences since your accident. In addition to this daily record, we also ask you to start describing a single day in the course of your life. In other words, describe what you do when you get up in the morning, the first thing you do after you go to work, what type of work and effort do you put into your employment, what activities you engage in after work, etc.
In other words, we need you to describe the changes in your working life,
your playing life, your life as a husband or wife or child or parent. In your written description of your day, we would appreciate your explanation in the greatest detail possible and in your own words how the accident and subsequent injuries have affected your life, your personality, and your outlook.
And remember that suffering does not entail mere physical pain; suffering can be emotional and can be transmitted to your family and friends, at work and at play. When you have completed this description, please return it to this office in the enclosed envelope.
Record Medical and out of pocket expenses
You can also begin to set up a system for recording the expenses incurred in conjunction with your claim in minute detail. Medical and legal expenses are a strong part of the value of your lawsuit, so good records of these expenses must be kept at all times. Your attorney will keep track of your legal expenses, which may include costs of filing, service of process, investigation, reports, depositions, witness fees, jury fees, etc.
From time to time, however, there will be expenses incurred that you must keep track of yourself. We ask you to make every effort to avoid any possible error or inaccuracy as jurors have a relentless reverence for the truth. Keep your canceled checks and your list of expenses together, for we will need them at a later date.
The Deposition
The deposition is just as important as the trial itself, and in the event you are deposed during the course of this action, you will receive detailed instructions as to procedure. After taking depositions, the case will be set down for trial. Following the setting of the case for trial, there will be preliminary conferences commonly known as pretrial hearings.
Altogether, these procedures may take from six months to several years, and your patience may be sorely tried during this time. However, it has been our experience that clients who are forewarned have a much higher tolerance level for the slowly turning wheels of justice.
Do not discuss the case
The insurance company may telephone you and record the conversation or send an adjuster (investigator) who may carry a concealed tape recorder. You should not discuss your case with anyone.
Obviously, we cannot stress too strongly that you not discuss this matter
with anyone but your attorney or immediate, trusted family. You should sign no documents without the consent of this office. Remember that at all times you may be photographed and investigated by the opposition. If you follow the simple precautions which we have set out in your checklist, we feel that we will be able to obtain a fair and appropriate amount for your injuries. If you get any letters from anyone in connection with your case, mail or fax them to your attorney immediately.
* Questioning: If any person approaches you with respect to this accident without your attorney's permission, make complete notes regarding the incident. These notes should include the name and address of the party, a description of the person, and a narrative description of what was said or done. Under no circumstances should you answer any question(s). All questions should be referred to your attorney's office.
* Surveillance: Remember at all times that you may be under surveillance and, therefore, subject to being photographed or filmed by the adverse party. Be advised that there are cases where photographs and films have been introduced in court showing claimants who were allegedly in serious condition participating in activities which they alleged they were unable to do. You do not have to live in fear of being photographed, of course, if your cause is a just one.
However, when carrying on your usual activities, keep in mind at all times that you are subject to investigation. If you have been seriously injured, do not do anything that will jeopardize your case during the course of your daily life. You should always follow your doctor's advice. If you have to do things which cause you pain, this can usually be explained to the full satisfaction of any court or jury.
There are cases where the insurance agent has attempted to discredit a
personal injury plaintiff by taking movies of the claimant engaged in various physical activities. In one case, large rocks weighing over one hundred pounds were placed at the door of the garage during the night so that claimant would have to be forced to remove the rocks in order to drive to work. This, of course, was filmed and used to discredit the plaintiff's claim in court.
Kenneth Vercammen, Esq.
Kenneth A. Vercammen is the Managing Attorney at Kenneth Vercammen & Associates in Edison, NJ. He is a New Jersey trial attorney has devoted a substantial portion of his professional time to the preparation and trial of litigated matters. He has appears in Courts throughout New Jersey each week on personal injury matters, Criminal /Municipal Court trials, and contested Probate hearings.
2. 486b TRUSTS By Thomas D. Begley, Jr., Esquire
Section 468(b) of the Internal Revenue Code[1] authorizes the establishment of Designated Settlement Funds or Qualified Settlement Funds. These funds are usually collectively referred to as Qualified Settlement Funds (QSFs). The purpose of these funds is to permit a defendant in certain types of litigation to deposit funds into a trust and to receive a full and complete release of liability. The defendant is entitled to a current income tax deduction for the amount paid into the fund at the time the funds are deposited into the trust. This is an exception to the general rule under which the tax deduction is not permitted until the funds are actually disbursed to the plaintiff, which is normally the time in which the plaintiff has received the “economic benefit” of the settlement.
These QSFs arose out of class action lawsuits. They can be very useful in personal injury actions and other types of cases where there are multiple plaintiffs. Many of these cases also have multiple defendants. The QSF is usually established prior to trial. The parties agree on a maximum amount for a settlement. The defendant pays that amount into the QSF and the parties can then take their time in allocating the settlement among themselves and in dealing with various liens, such as Medicaid, Medicare, and third party subrogation. The QSF could also be established after a jury award, as long as there is an appeal pending.
Advantages of 468(b) trusts include the following:
• Defendant Removed from Litigation. Defendants want to be out of the case. By utilizing a QSF a defendant can pay and go. The defendant pays the funds into the QSF and the parties later allocate the settlement between themselves, determine how much should be lump sum and how much to structure, determine whether a special needs trust is required, and wait while a guardian is appointed for an incompetent plaintiff, if required.
• Defendant Removed from Allocation of Settlement. Where 468(b) trusts are used, the defendant leaves to the plaintiff the issue of allocating the settlement among injured parties.
• Plaintiff’s Attorney’s Fees and Costs. When a 468(b) trust is used, the plaintiff’s counsel can be paid fees immediately from the QSF and litigation expenses can also be paid.
• Income to Plaintiff. The plaintiff will immediately begin to receive income from the settlement held by the 468(b) trust. Without the trust, the defendant would be holding the money and the plaintiff would not be receiving the benefit of the income.
• Deduction to Defendant. Defendants and their insurers are able to obtain immediate tax deductions, rather than waiting for “economic performance” to occur.
• Negotiations. Time is no longer a factor in negotiations with Medicare, Medicaid, and third party insurers. Addition time is available to negotiate and satisfy those liens.
Copyright 2008 by Begley & Bookbinder, P.C., an Elder & Disability Law Firm with offices in Moorestown, Stone Harbor and Lawrenceville, New Jersey and Oxford Valley, Pennsylvania and can be contacted at 800-533-7227. The firm services southern and central New Jersey and eastern Pennsylvania. Tom Begley Jr. is one of the speakers with Kenneth Vercammen at the NJ State Bar Association's Annual Nuts & Bolts of Elder Law and co-author with Kenneth Vercammen, martin Spigner and Kathleen Sheridan of the 400 plus page book on Elder Law.
The Firm provides services in connection with protecting assets from nursing home costs, Medicaid applications, Estate Planning and Estate Administration, Special Needs Planning and Guardianships. If you have a legal problem in one of these areas of law, contact Begley & Bookbinder at 800-533-7227.
3. Useful Personal Injury and Civil Litigation articles added to website http://njpersonalinjurylawcenter.com/:
What to do in an Accident
What to Expect in a Personal Injury Case
What is a Deposition?
Dog Bites
Uninsured & Underinsured Injury Cases
Workers' Compensation
Hit and Run Injuries
Fall Down Law in New Jersey Based on Jury Request to Charge
Accident Victims Rights: Insurance to Pay for Medical Treatment
NJ Medical Fee Schedule
Lost Wages
Submission of Bills to Car Ins.
Filing of Complaint
Investigation of Defendant Ins.
Interrogatory Questions to Plaintiff
Diary & Record keeping
Subpoenas in a Court Case
Wrongful Death
Medical Malpractice
Personal Injury: Winning Strategies - Book Available
Fighting Insurance Companies
Personal Injury Interview Form
Personal Injury Fact Sheet
4. WE PUBLISH YOUR FORMS AND ARTICLES
The American Bar Association Tort & Insurance Law Committee of the General Practice Division monitors federal and state legislation affecting rules of procedure and tort reform The committee presents and sponsors programs at the Annual Meeting often dealing in tort and litigation issues.
Articles needed for American Bar Association Tort & Insurance Law Committee Newsletter
They feature a newsletter with Personal Injury forms and articles plus tips on marketing and improving service to clients. Kenneth Vercammen of Edison serves as the Editor. Please email articles, suggestions or ideas you wish to share with others in the Tort and Insurance Committee. You will receive written credit as the source and thus you can advise your clients and friends you were published in an ABA publication. The ABA is increasing the frequency of publication of their email newsletter. Send us your short tips on your great or new successful marketing techniques. You can become a published ABA author.
5. Reminder: Elder Law 2008- Expanding and Marketing an Elder Law Practice Program at ABA Annual Meeting 50+ Forms and articles
Saturday, August 9, 2008 2:00 - 3:30 p.m.
American Bar Association Annual Meeting
Hilton, New York City, New York
Speakers:
Jay Foonberg, Esq. - Author of Best Sellers “How to Start and Build a Law Practice” and “How To Get and Keep Good Clients”, Beverly Hills, CA
Charles Sabatino, Director of the ABA's Commission on Law & Aging
Kenneth A. Vercammen, Esq. - co-author "Nuts & Bolts of Elder Law", Edison, NJ
Parag Patel, Esq., – Iselin, NJ
Primary Sponsors: General Practice Section
Requested co-sponsors: ABA Commission on Law & Aging, Health Law Section, YLD, LPM, Senior Lawyers Division, Real Probate & Trust Section, Tax Law Section
List of Articles on CD for Elder Law August 9, 2008 American Bar Association General Practice Division
Forms and Documents to be Provided on CD
1 New Client schedule appointment .doc
2 Confidential Will Questionnaire
3 Will bill.doc
4 WILL DRAFT CO
5. Doctor Cert sign POA, will Dr.doc
6 Thank you for Referral_.doc
7 POA DRAFT lt.doc
8 Will Signing Instruction.doc
9 Referral Out Another Atty fax.doc
10 No rep.doc
11 Recommend Will to Cl.doc
12 Post WILL.doc
13 Client questionnaire end case.
14 POA Grantor Now.doc
15 Wills article 25.doc
16 POA Power of Attorney- article
17 LIVING WILLS.doc
18 Gay and Lesbians- Advance Directives.doc
19 Letter of Instruction.doc
20 Remove Executor.doc
21 Alzheimer, POA Guardianship.doc
22 ANSWERS to Questions Probate.doc
23 Estate Planning 10 Ideas.doc
24 Executor Duties.doc
25 Prenuptial Ag.doc
26 Undue Influence article.doc
27 Attorney- Client Confidentiality.doc
29 Executor to Pay and Notify Cred.doc
29 If no Will.doc
30 NJlaws website & articles.doc
31 Trusts.doc
32 Caveat to Will.doc
33 Central Jersey Elder articles.doc
34 ABA Estate Plan Winter 2008 .doc
35 Estate Plan ABA Nov 2007 .doc
36 ABA ELDER News Aug 2007 GP.doc
37 ABA ELDER LAW COMMITTEE Newsletter July 2007 ABA General Practice.doc
39 Estate Probate ABA news May. 2007
40 Elder Law ABA news Feb.doc
41 partition suits.doc
42 INTESTACY .doc
43 Lincoln 17- no charge
44 Guardianship bill
45 RETAINER Probate ESTATE
46 WILL - sign front notary
47 Confidentiality Lt to Client
48 Elective Share of Spouse.doc
49 Joint Bank Accounts Upon Death.doc
50 Probate Release Refund Bond.doc
51 Pick Up old Will
52 Index to Documents
53 NJ Probate & Elder Law News Summer 2008 [not on CD]
Contact Kenneth Vercammen, Esq. for program information 732-572-0500
Contact American Bar Association's ITS at 800-421-0459 for registration
6. Great Seminars and Events at ABA New York Meeting for Solo & Small Firm Attorneys
Great Seminar and Events at ABA New York meeting for Solo & Small Firm Attorneys
THURSDAY, AUGUST 7
Registration Opens > 8:00 a.m.
Rhinelander Gallery, 2nd Floor, Hilton New York
ABA EXPO 10:00 a.m. -4:00 p.m.
America's Hall I/II, Hilton New York
2:00 p.m. to 3:30 p.m.
Day of Equality: 7 Habits of Highly Successful Women in the Industry—
Tort Trial and Insurance Practice Section
Nassau Suite B, 2nd Floor, Hilton New York
3:45 p.m- . The Last Thing Hanging in the Closet: Legal Assistance for Lesbian, Gay, Bisexual and Transgender Domestic Violence Victims
Hilton New York Petit Trianon, 3rd Floor
5:30 p.m. to 7:00 p.m.
Day of Equalitea Reception
West Ballroom (3rd Floor), Hilton New York [Free]
6:30 p.m. to 8:00 p.m.
Litigation Welcome & Outreach Reception
Grand Salon, Lobby Level, Jumeirah
Essex House [across from Central Par] [Free]
7:00 p.m. – 8:30 p.m. LPM Gathering Reception The Atrium Room @ Remi Restaurant (145 West 53rd Street - between 6th and 7th Avenues) [Free] [approx 2 blocks from Hilton]
8:00 p.m. – 11:00 p.m. GP Chair’s Hospitality Suite
Plymouth Room, 9th Floor, Westin Times Square [Free] [approx 12 blocks from Hilton]
Friday, August 8—
6:45am Run 5 miles Central Park Start at NY Hilton
8:00 a.m. – 9:00 a.m. LPM Group Breakfast Sheraton
Riverside Ballroom (3rd Floor)
8:30 a.m. – 10:00 a.m. Solo Day: Takin’ It to the House
Morgan Suite, 2nd Floor, Hilton New York
8:30 a.m. – 10:00 a.m. Solo Day: Running with the Big Dogs : How To Eat Well Without Being Swallowed Up. A
Primer on Getting Work from Large Law Firms
and Corporate Clients.
Nassau Suite A, 2nd Floor, Hilton New York
Hilton New York Nassau Suite A, 2nd Floor
8:30 a.m. Improving Your Public Speaking Skills Center for Continuing Legal Education
Nassau Suite B, 2nd Floor, Hilton New York
8:30 a.m. – 10:00 a.m. CLE - Best of ABA TECHSHOW: Law Practice Management & Technology Tips Conference Room D, Executive Conference Center - Sheraton Towers
11:00 a.m. to 12:00 Noon
Professional Development
Program—Presentation Skills:
Coaching & Tips for the IP
Practitioner
Starlight South Terrace, 18th Floor,
Waldorf=Astoria [approx 6 blocks from Hilton]
ABA EXPO 10:00 a.m. -4:00 p.m.
America's Hall I/II, Hilton New York
2:00 p.m. – 3:30 p.m. Solo Day: The Pot of Gold at the end of the Rainbow Retirement Planning, Pensions & Estate Planning for You and Your Firm Hilton New York Nassau Suite A, 2nd Floor
2 :00 p.m. – 3:30 p.m.
Working Together, Wherever You Are: The Lawyer's Guide to Collaboration Tools Conference Room D, Executive Conference Center, Sheraton New York LPM
3:45 p.m. to 5:15 p.m.
Annual Survey of Supreme Court Decisions—Criminal Cases
Conference Room K, Executive Conference Center, Sheraton New York
This program will review and discuss the cases that came before the Supreme Court during the current term. Constitutional, evidentiary issues and habeas cases will be addressed.
5:30 p.m. to 7pm ABA Women Rainmakers Reception Sheraton New York
Lenox Ballroom, 2nd Floor
6:00 p.m. to 7:30 p.m.
Welcome Reception for the Sections of International Law,
The Starlight Roof, 18th Floor,
Waldorf=Astoria
Primary Sponsor: Section of International Law
Additional Sponsors: Section of Science &
Technology Law, Intellectual Property Law and
Science & Technology Law [$$]
10:00 p.m. – 12:00 a.m. GP Chair’s Hospitality Suite Plymouth, 9th Floor, Westin Times Square
SATURDAY, AUGUST 9
6:45am Run 5 miles Central Park Start at NY Hilton
8:30 a.m. – 10:00 a.m. CLE - Social Networking Sites: The Newest Tools for Investigative Research Conference Room D, Executive Conference Center - Sheraton
10:45 a.m. – 12:15 p.m.
"Going Solo - Starting Your Own Firm"
Belasco Room, 5th Floor of the New York Marriott Marquis
[Approx 9 blocks from Hilton]
2pm Elder Law 2008—Expanding an Elder Law Practice General Practice, Solo & Small Firm Division Nassau Suite A, 2nd Floor, Hilton New York
Speakers:
Jay Foonberg, Esq. - Author of Best Sellers "How to
Start and Build a Law Practice" and "How to get and keep good clients', Beverly Hills, CA
Kenneth A. Vercammen, Esq. - co-author "Nuts & Bolts of Elder Law", Edison, NJ
Charles Sabatino, director of the ABA's Commission on Law & Aging
Parag Patel, Esq. Iselin, NJ
Additional Sponsors: Senior Lawyers
Division, Young Lawyers Division,
Health Law Section, Section of Real
Property, Trust and Estate Law, Section of
Taxation; Commission on Law & Aging and Physical Disability Law
3:45 PM -5:15 The Lawyer’s Guide to Buying, Selling, Merging and/or Closing a Law Practice
General Practice, Solo & Small Firm Division
Nassau Suite B, 2nd Floor, Hilton New York
4:30 p.m. to 6:30 p.m.
GP Incoming Chair’s Event
Plymouth, 9th Floor, Westin Times Square
OPENING ASSEMBLY > 5:30 p.m.
Grand Ballroom, 3rd Floor, Waldorf=Astoria
Admittance by Badge Only (No Charge)
The TomCats Jazz Aces
President’s Reception > 7:00 p.m. - 9
Museum of Modern Art MoMA, 11 West 53rd Street, New York [$]
SUNDAY, AUGUST 10
6:45am Run 5 miles Central Park Start at NY Hilton
7:30 Solo Caucus Breakfast 7:30 a.m. - 9:00 a.m.
Westin Times Square, Gershwin II Room, 4th floor New York, New York
8:30 AM The Art of Impeachment
Madison Suite, 2nd Floor, Hilton New
York
2:00 p.m. to 3:30 p.m.
The Future is Now! Blogs, Social Networks, Second Life and
How They are Changing the Legal Profession
Rendezvous Trianon, 3rd Floor, Hilton New York
Primary Sponsor: Section of Science & Technology
Voting- House of Delegates ABA
The polls will be open during the following hours:
Thursday, August 7 8:00 a.m. to 6:00 p.m.
Friday, August 8 8:00 a.m. to 6:00 p.m.
Saturday, August 9 8:00 a.m. to 6:00 p.m.
Sunday, August 10 8:00 a.m. to 5:00 p.m.
Monday, August 11 8:00 a.m. to 5:00 p.m.
Tuesday, August 12 8:00 a.m. to 10:00 a.m.
Six Delegates-at-Large are elected at each Annual
Meeting to serve a three-year term in the House
of Delegates. Any member of the Association is
eligible to be a Delegate-at-Large, although of the
six elected each year, no two may be accredited to
the same state, territory or possession. Nominations
for Delegates at Large are made by written petition.
At this Annual Meeting, there will also be two
Delegate-at-Large elected to fill vacancies. All
ABA lawyer members who have registered at the
Annual Meeting are entitled to vote for Delegates-
at-Large. Voting will commence on Thursday,
August 7, and continue until 10:00 a.m. on Tuesday,
_______________________
TORT AND INSURANCE COMMITTEE General Practice, Solo and Small Firm Division
Chair: Patricia Sexton, Kansas City
Mailing Address: Patricia A Sexton
Polsinelli Shalton Welte et al
Ste 1000
700 W 47th St
Kansas City, MO 64112-1805
Business Phone: (816) 753-1000
Fax: (816) 753-1536
E-Mail: psexton@polsinelli.com
Kenneth Vercammen, Esq. Deputy Chair and Past Chair
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
kenv@njlaws.com
website- http://njpersonalinjurylawcenter.com/
Personal Injury blog- http://njlawspersonalinjury.blogspot.com/
