Q. I want to start my own business but protect my personal property. What do I do?
A. By creating an entity for your business — such as a corporation or a limited liability company — you allow yourself to take certain risks to grow your business while also protecting your personal assets. Insurance is an important part of this too. Having an entity also creates tax savings.
Q. I have a warrant out for my arrest in Maine, but I live out of state. How can I fix it?
A. There are significant implications for having even a minor warrant outstanding, which can exacerbated when state lines are involved. It is in your best interest to promptly contact an attorney.
Q. Can the police use the statement against me if they did not read me my Miranda rights?
A. Usually, as a result of watching a lot of TV, clients ask us if the police can use a statement that they may have made to the police, because they were not read their rights. There are a lot of misunderstandings about the Miranda warning. The police are only required to give the Miranda warning if the client is in custody. If you are in a jail cell or in handcuffs, this is easy to determine. If you are in a jail cell or in handcuffs and the police ask you questions, and they did not read you your rights, they typically cannot use your statement against you. The police are very skilled and understand the rules. The police will often approach our clients unexpectedly and in comfortable circumstances; at the client’s house, at their place of work, or on the street. They will begin a conversation with the client about seemingly harmless topics but quickly move into the real purpose of their visit. They will often say during these conversations that the client is free to leave at any time and that they will not be arrested, no matter what they say at that time. This is a ruse. The police want to question our clients before they are in custody, so that they don’t have to read them their rights. Our task at Lipman & Katz is to show the court, if possible, that, when the client made an incriminating statement, they were in custody. They might not have been in handcuffs or in a jail cell, but the circumstances of their statement may have led them to think that they were under arrest or not free to leave. This argument to the court is what is called “motion to suppress.”
Often the police will take evidence without a warrant and then use that evidence to prosecute a crime. The police should not be able to take evidence without a warrant, or come into your home without a warrant, but there are many, many exceptions to this constitutional rule (the Fourth Amendment to the United States Constitution). At Lipman & Katz, we have filed many motions to suppress and intimately understand how to press these arguments.
Q. When can I sue for medical malpractice?
A. There is a very short statute of limitations with few exceptions. It is important that you contact an attorney if you believe you have a medical malpractice case in the first year after the negligence occurs. The statute can be as short as three years. On occasion there are exceptions but the exceptions are very few.
Q. What type of evidence is needed?
A. It is important that evidence be obtained as soon after the case or malpractice takes place. Evidence can be a testimony of a witness, medical records, and always the assistance of experts.
Q. Who can be sued for medical malpractice?
A. A hospital, doctor, or any other health care provider who is providing medical services.
Q. What type of compensation can I get?
A. It all depends on the magnitude of the injury and the success in the litigation. Most cases are handled on a percentage basis with the client getting 60% and the lawyer getting 40%. If the case is not worth being pursued by an attorney, usually a client does not want to pursue the claim on their own. To go without an attorney in the field of medical malpractice is next to impossible. There are many bridges and crossings that have to be followed or else you lose your cause of action.
Q. Do most cases go to trial?
A. In medical malpractice there is a prescreening panel hearing that takes place and then you are entitled to a jury trial. Unfortunately, cases can take as long as 5 years. On the other hand, if a case is worthwhile and the attorney and the clients have the resources and perseverance to go through the case, usually they settle. However, you can never count on a case settling. You must prepare to go to trial all the way through the system.
Q. Is misdiagnosis considered malpractice?
Q. What is ‘contributory negligence’?
A. Contributory negligence is if the party who was suing for malpractice has caused part of the fault. A good example of contributory negligence would be a person who claims the doctor failed to diagnose cancer but yet a person missed half of their appointments.
Q. What is ‘informed consent’?
A. Informed consent is very seldom an issue in medical malpractice. If you go into a hospital and the doctor operates on the wrong leg, then that is not “informed consent.” On the other hand, if you go into the hospital and the doctor operates on the right leg but the stitches don’t heal well, then that is “informed consent.”
Q. What is the statute of limitations for medical negligence?
A. The statute of limitations for medical malpractice is generally three years from the time of the malpractice. However, there are exceptions.
Q. How long will it take to resolve the case?
A. That is a very difficult question because it usually requires going through a screening panel and then sometimes a jury trial. I advise most people that you should plan on 5-7 years. On many occasions it is a lot less, especially if the case is straightforward. It is a definite mistake to underestimate the time it will take to successfully pursue a medical malpractice case.
Q. I was injured in a motor vehicle collision. Do I need the assistance of a lawyer to protect my rights?
A. Insurance companies are for-profit entities such that the less they pay on a claim the more they save their company. An injured party is no match for a clever adjuster. It is wise to consult an experienced trial lawyer to be sure that your rights are protected. You should consult with an attorney before ever agreeing to give statements to the insurance company, let them take photos or give them medical authorizations.
Attorneys are trained to deal with the professionals that work for insurance companies. To best be protected seek the advice of a good lawyer.
Q. What is a fair amount for the injury I received?
A. This is not an easy question. However, from the first day of the collision, an injured party needs to be making preparations, preserving evidence, as well as testimony, which an attorney can do on your behalf. If the case is not properly prepared, an injured person is at a distinct disadvantage as time goes on. Sometimes an adjuster will urge people not to contact an attorney but to wait and work with the adjuster to see if the case can be settled. When this occurs, an injured party may be unable to prepare his or her case until it is too late or is seriously compromised. Fair settlements are more apt to occur if a case is well prepared.
An injured person should always be aware that some injuries take a while before they develop. Quite often, an injury to your back or to your head may not surface for two to three weeks following the collision. If you sign off or give statements to the contrary, you have seriously compromised the full value of your case in getting a fair recovery.
Remember, once you sign off it is too late.
Q. What damages can I recover?
A. The damages you may recover depend upon the nature of your injuries. One of the items that many insurance companies do not share with the injured party is that their spouse is also entitled to recover. The loss of consortium action compensates for the value of your spouse's nursing services, time lost from work, and efforts by the non-injured spouse in doing jobs that were previously done by the injured party.
It is absolutely imperative that you appropriately use your health insurance coverage, preserve your loss of income, and recognize when appropriate your loss of earning capacity. You should always recover your property damage and then your intangibles, such as pain and suffering, emotional distress, scarring, permanent impairment, and loss of enjoyment of life.
There is a potential recovery for punitive damages from the guilty party if there are intentional torts, and in some instances unintentional torts.
Q. How long will my lawsuit take?
A. Your lawsuit may not take very long if it is settled without having to bring suit. However, it is generally not advisable to settle if the medical conditions have not been stabilized and you have potential post-collision injuries. With experienced counsel, most cases are settled without having to bring suit if you convince the insurance carrier that you are prepared to see the case through to the end.
Q. When should a lawsuit be brought?
A. Maine has limitations on when you must bring suit or lose your claim. However, a determination as to when to bring suit is a decision you make with your attorney. In most circumstances, suit does not have to be brought as the parties are able to negotiate a fair settlement. On the other hand, sometimes suit is necessary to maximize the recovery and especially unearth improper behavior by the person causing the collision.
Q. How much auto insurance do I need?
A. In Maine, the mandatory minimum amount of automobile insurance is $50,000 for liability. This means there will be $50,000 available to cover any injuries the driver may have caused. What many people do not realize is that the same $50,000 policy covers uninsured motorist claims. Read more about how much auto insurance you should buy.
Q. What is negligence?
A. Negligence is the failure of a person to follow due care. If a person is careless, they are negligent. It is important to remember that the injured party always has the burden to show that the other party was negligent or careless. It is much easier to establish negligence if you are there in the beginning. For example, if a person was injured because the landlord failed to plow the driveway, it would be pretty hard to prove this in June if pictures were not taken at the time of the injury.
Lawyers are trained and skilled in determining what negligence is and what carelessness is. You want experienced counsel to assist you in so proceeding.
Q. What is a catastrophic injury?
A. A catastrophic injury is one in which there is a substantial injury to a person to the extent to which they have permanent impairment. A catastrophic injury could be a brain injury, loss of an arm or leg, severe burns and disfigurement, and even death.
Q. What steps should be taken if I am injured in a motor vehicle collision?
A. Promptly call your lawyer to find out what to do. Your lawyer should act quickly in responding to your questions and handling your collision-related issues. The lawyers are paid and experienced to make sure you are treated fairly.
Q. How do I pay a lawyer?
A. Most lawyers are willing to work on a contingent fee basis or percentage of the money they recover for you. A good lawyer can evaluate the potential recovery on a personal injury matter and if he or she does their job well, will get you significantly more than you would get if you did it on your own.
Q. What is an accident reconstructionist?
A. An accident reconstructionist is a person skilled in determining the cause of automobile accidents. These individuals are trained to use mathematics and physics to determine the speed of vehicles at the time of an accident. These analyses take into account the friction of the road service, the weight of the vehicle, the weight of the contents, the geometries of the road, and other factors to determine who may have been at fault for a crash. These types of calculations are extremely complex and should only be performed by highly trained and careful people.
Q. Can a child sue a parent if they are injured in an accident?
A. The simple answer is yes but there are a lot of things to consider. We discuss some of the issues involved in a child suing a parent here.
Q. Does Lipman & Katz handle cases involving tractor-trailers?
A. Tractor-trailers, also called big rigs or 18-wheelers, come in many shapes and forms. These cargo vehicles haul enormous quantities of goods across the nation’s highways. Although drivers of these vehicles are highly regulated, whenever you have human beings driving long distances on monotonous highways under economic pressure to make money, tragic accidents can result. Whether it is a distracted truck driver texting, a tired driver drifting into your lane, or a failure to safely maintain the vehicle or the vehicle’s brakes or tires, accidents that involve tractor-trailers are very serious. At Lipman & Katz, we understand the issues involved and how to aggressively pursue the companies that unsafely operate these vehicles.
Q. Can I sue the State of Maine?
A. If you have been injured due to an employee of the state of Maine being negligent, you can rely on Lipman & Katz to guide you through this specialized and complicated process. If a governmental agency has negligently injured you, the Maine Tort Claims Act provides that the State and its employees may be sued under very limited circumstances. If the State has injured you through the "ownership, maintenance or use of vehicles, machinery and equipment," it may be that you can sue. If your injury is due to poor maintenance at a public building, for example courthouses, schools or government agency buildings, you may be able to sue. If a state employee or agency has created a dangerous situation through road construction, street cleaning or repair, you may be able to sue.
Suing the State of Maine is a difficult and complex process and each case is different. It is important to discuss the facts of your specific case with an experienced lawyer. Keep in mind that suing the State requires acting quickly and filing very specific notices with the proper agencies in order to preserve your claims.
Contact Lipman & Katz to assist you with this process.
Q. Can I sue the Federal Government?
Many people do not realize that they can sue the Federal Government for damages. Historically, individuals were not able to sue the Federal Government because of the doctrine of sovereign immunity. Cognizant, however, that this limitation on a citizen's ability to sue made for some very harsh results and injustices, Congress created the Federal Tort Claims Act ("FTCA"). The FTCA allows people to sue the Federal Government and its various agencies under fairly specific instances. While there are many exclusions and limitations to the ability to sue the Government, the FTCA allows for a wide variety of common claims.
The procedure for suing under the FTCA is very specific, and not always clear. If you do not carefully abide by specific requirements of the FTCA, your claim will be denied. The FTCA imposes a number of deadlines and time requirements on the ordinary court processes. For example, you must file a Notice of Claim with the appropriate Government agency within the required timeframe under the Act. Your Notice of Claim must give very specific information, including, a statement of the facts and a "sum certain". If the agency denies the claim, the claimant has a limited time from the date of the denial to file a lawsuit in the appropriate U.S. District Court.
Our attorneys have successfully prosecuted Federal Tort Claims Act cases and are skilled and knowledgeable in defending your rights when you have been injured by the Federal Government. Contact Lipman & Katz to assist you with this process.
Q. How will I be charged for services related to basic real estate transactions (purchase, sale or lease)?
A. Attorneys at Lipman & Katz charge their customary hourly rate for these services.