March 10, 2014 Interview By Randy Van Ittersum
Personal Injury Lawyer - Dan Kaminsky from Fond du Lac, WI shares with us some of the legal issues you can encounter with a personal injury case. Learn tips on how to select the right personal injury attorney to represent you.
Randy Van Ittersum: I want to welcome everyone to the Business Leader Spotlight Show. This is Randy Van Ittersum, your host for today. Today we have with us Dan Kaminsky, a leading personal injury attorney in Fond du Lac, Wisconsin.
He is here today to talk to us about some of the legal issues that you can encounter in a personal injury case. Dan, welcome to the show.
Dan Kaminsky: Thank you very much. I appreciate it.
Randy: Dan, tell us a little bit about yourself, and about your law firm.
Dan: Well, I started practicing law in Southern California in 1998. I practiced there, all throughout Southern California, for about 10 years, and my practice did include personal injury. I then moved to the Wisconsin area, specifically Fond du Lac in early 2007.
Of course, I had to take and pass the bar exams here. Once licensed, I resumed my practice here, continued with cases in California until I wound down that practice. Then, for a four-year period, I acted as the elected district attorney in Fond du Lac.
When that term ended, I resumed my private practice, which I currently operate. I'm a sole practitioner, I'm in my 16th year of practice. I do personal injury, general civil litigation, criminal defense, family law and divorce, and some real estate transactions.
Randy: Excellent. Dan, tell us why should somebody hire a personal injury lawyer?
Dan: Well, nine times out of 10, when you have a lawyer representing you, you'll end up with more money in your pocket than if you attempt to negotiate with the insurance company alone, that is the short answer. There are actually many reasons for that, but one of them being sometimes it's difficult for people to stick up for themselves. A non-attorney doesn't know all the rules, and know the general amounts that could be expected to be recovered, and oftentimes accepts money too soon from an insurance company.
Lastly, a lay person may not realize the money that they would have to pay back to the various insurance companies that paid their medical bills, and they may accept money not realizing that off the top, there's got to be some medical bills paid back.
Randy: OK, there's an adversarial position between the injured party and the insurance company, just share with our listeners why that is, and a little bit about that?
Dan: Sure, first of all when we're talking about...If you're in an accident of some sort, whether it's a car accident or slip and fall, and you're suing or making a claim against the other person's insurance company, that's what we're talking about. It's slightly different if it's a claim with your own insurance company.
They're generally a little more reasonable to work with, but speaking about the normal case where you're suing the other person's insurer, you know insurance companies are a business, how much they pay out affects their bottom line. So the less that they can pay out across the board in all of their claims, the more profitable that company will be at the end of the year. The insurance company's goals are to maximize their profits.
In fact, they actually have a duty to their corporation to do that, whereas the injured person, their goals are to receive fair compensation for their personal injuries, which is often difficult to measure, but essentially the theory is they're looking for more money where the insurance company is looking for less, and so the negotiation is about how much money.
Randy: OK, one of the things that people hear all the time, I've heard it from family members, I'm not saying it applies to everybody, but the insurance company is looking to settle quickly, come to them possibly with a check in hand, and the question is the complexity of actually navigating an injury claim. Is it something that a lay person can generally do, just share with us some of the complexities that they simply may not be aware of.
Dan: Sure, the first complexity, something I touched on earlier, is what's called "subrogation." That means when you go to the doctor, your medical bills are paid by your own insurance company, and you then later receive money for those injuries you're obligated to pay back that insurance company for what they've spent, if you don't, they could potentially later make a claim against you to recover that money.
You likely don't know when you're the injured party how much money your doctor has received from your insurance company. Usually, you receive a bill showing only the balance due, and it's usually in the matter of a few hundred dollars as compared to the thousands that were likely received by the healthcare provider from the insurance company.
One of the first things that a personal injury attorney has to do is collect all the medical records and billings to make sure that the attorney knows absolutely every penny that was paid to the doctors to find out what the amounts of the claim for the reasonable medical expenses would be. A lay person simply isn't going to have the knowledge or the foresight at the beginning to understand what's going on there.
In Wisconsin, and California, there are slightly different rules about direct actions against the insurance company, and how the subrogation rights work. It also varies from state to state as well. Generally speaking, a lay person just doesn't know that that's going on, that's number one. Two, the attorney is going to be acutely aware of all of the legal time limits to make sure that you don't wait too long and let the claim lapse.
Three, an attorney is going to be able to go out either themselves or with an investigator to contact and, what I would say, marshal any evidence that might exist in the case. That includes taking photographs of injuries, taking photographs of the scene, taking photographs of any damages to property or vehicles, things like that, maybe getting recorded statements or affidavits from witnesses, and protecting the injured person and make sure that if they are going to give a statement which probably isn't the best idea upfront without counsel that they do have legal counsel when they're being talked to.
They may say something or misunderstand something that is not in their best interest, which an attorney can help protect them against. For all of those reasons, it's probably not a good idea for an injured party to try to do that themselves.
Randy: OK, people generally are very honest, upfront, and so forth, and hopefully they aren't in a lot of accidents. It might be a onetime only situation. What are some of the hidden land mines out there where, in a personal injury case, even to the extent of where somebody may do something unintentionally that potentially could hurt their case?
Dan: Well, people may not understand the concept of comparative fault that is if the insurance company will be looking for anyway to be able to assert that the injured party was somehow at fault for the accident, whether it'd be a car accident or any other type of industrial or a slip and fall accident, that's number one. People may not understand the impact of some of the things that they say. Number two, this is probably true not just for personal injury cases, but for any type of case.
I've even found this true for myself personally. You know the old adage, "A person who represents themselves has a fool for a client." The reason that concept is true is it just happens to be human nature that it's very hard sometimes to stick up for yourself. I think that's because we're all taught to be humble, most of us are taught by our parents to be humble, to not be braggarts, to not talk about "me-me-me," that kind of a concept.
When it comes to describing your own injuries, admitting your own pain, your own frustrations, your own angers, all the things that could be compensated for in a personal injury case, people just don't stick up for themselves as well as they do when they have somebody else representing them.
It's easier for an attorney to assert every single claim and have absolutely no hesitation whereas if you try to do that yourself, sometimes you feel morally bound to not be braggartly, or to downplay your injuries, or to have some pride and not admit something hurts as much as it does. Ultimately, you sacrifice the value of the claim, and your own compensation for your own injuries, because essentially you're not capable of standing up for yourself. Even if you think you are, a representative is going to do it better for you.
Randy: Excellent advice, one of those things we see on TV all the time is insurance adjusters coming to somebody's aid and trying to demonstrate that they're their friend, they're there to help them out, and the question I have, "Is the insurance adjuster really your friend and your advocate in a personal injury case?"
Dan: No, that's not a criticism of an insurance adjuster, but that's not their job. Their job is not to be the advocate for the injured party at all. Sometimes, they may make offers early on and they don't themselves know the extent of the injuries and the damages, but one of their goals is to wrap the case up in a very quick fashion and not have the insurance company bear any legal expenses or litigation costs.
Again, that' part of the bottom line issue, but no, the insurance adjuster should never be considered somebody's friend. They might be perfectly pleasant, and personable to deal with, and professional, and we hope they are, but that shouldn't be confused for being an advocate for the injured party.
Randy: Excellent. Tell us, in managing the client's expectations, what's the most frequent problem that you encounter?
Dan: Well, I think it's the time that it takes to process and pursue a claim, especially if in litigation. They saying, "The wheels of justice turn very slowly" is true. Those of us that work in the legal field, and know the time lapse that's involved, and generally the filing of claims, responses, discovery procedures, and ultimately if it goes to trial, you're talking about probably 18 months on average for a normal claim.
Whereas most people that are involved in an accident think that it can wrapped up in a matter of a few months, and certainly sometimes it can, if it settles without the need for litigation. By and large, people don't understand that by the time the case is settled it's a distant memory in their mind already, and it's difficult for people to understand why the legal system moves so slow, but that's just the nature of the beast.
Randy: OK. One of the questions that's on everybody's mind is what does it cost to hire a personal injury attorney? What are they expected to pay and who's expected to pay for these costs? Could you share your thoughts on that?
Dan: Well, the most common method by which a personal injury attorney is hired is called a contingency fee, which means the attorney's time charges or what the attorney gets paid for devoting their time and effort to the case is contingent upon an actual recovery and that's usually one-third of the recovery. The attorney's fee is calculated when money is actually received and it's divided into thirds. Two-thirds go to the clients and one-third to the attorney.
There are times when an attorney will reduce the fee and there are times based on the nature of the case where the fee could be higher than one-third. That's depending upon many factors, including the perceived amount of the claim, the experience of the attorney, the time that might be involved and so forth. The costs are separate.
In other words, the legal costs are the out of pocket expenses, and that includes things like court filing fees, transcript fees, deposition fees, service of process fees, things like that, could be expert fees as well. Generally speaking, the law allows an attorney, or a law firm, to advance those costs on behalf of a client and many firms that specialize exclusively in personal injury cases will do that.
Those costs get paid back out of the client's two-thirds of the recovery when the case has concluded. Now the law says, however, that the attorney is not supposed to pay the costs for the client. Meaning that if the claim is unsuccessful and no money is recovered, theoretically the injured person would have to pay back all of the out of pocket expenses that were incurred, even though the attorney doesn't get paid for the attorney's time.
Now, that being said, it is a common practice that often times if an attorney does accept a case and advance costs, and the case is unsuccessful, they don't pursue the clients to request reimbursement of those costs. That's sometimes, it can, it depends how much it would be and there are times also where a client might be asked to advance, and make a deposit for the costs, and there are reasons for that as well, including how much the costs are expected to be.
Sometimes if the claim is questionable, the concept of having some skin in the game comes into play. Meaning that it's easy for a client to not appreciate how much time and effort is put into the case, if they don't have any stake in it themselves. Having to invest some of their own finances into the case as well, being that the attorney is devoting a year of their time into the case, is important so that they are reasonable when it comes to resolving the case in the long term.
An experienced attorney is going to factor all of those things into consideration at the outset in making a decision as to A, whether or not to require an advance towards costs and B, in the long run how much the attorney is willing to advance out of their own pocket to pursue the claim.
Randy: OK. Tell us, if the insurance company comes to you before you've seen an attorney, and asks you to sign a release, should you sign it?
Dan: I always advise people not to. The reason is this, I want to make sure that whatever the insurance company obtains, copies of it are also obtained by myself on behalf of my client. Ultimately, I would advise the person not to sign the claim, and wait until they contact their attorney, and let the attorney redraft the release to ensure that A, it allows for only written correspondence, not verbal communications with your doctor.
B, that if there are concerns about other privacy issues that are unrelated to the case that it can be limited in scope, and then C, that the attorney receives copies of whatever the insurance company receives. Experience has proven that sometimes when an attorney sends in a release to the health care provider, you get some of the documents, and sometimes you don't get all of the documents.
When an insurance company sends in a release, sometimes they get more documents than the attorney got, and that should not happen, but it does happen. The one way to protect your client is to make sure that you have all of the information equally as the insurance company does. The only way to do that is to make sure that the releases the insurance company obtains require production of documents to the attorney.
Randy: Good advice. One last question, we're at the end of our interview, and that is, if someone were looking to hire a personal injury attorney, what should they look for and how should they go about selecting the right attorney for their situation?
Dan: Well, the best advertising for any attorney is word of mouth and referrals from former clients. That's the first thing is to find out if they know anybody else that was represented by that attorney and they can share that experience. The second, and also important thing, is you've got to meet the person and you've got to feel comfortable that this personal relationship is going to function.
Because it is a personal relationship, it's a unique relationship between an attorney and a client, being that it's both professional and personal. You need to be able to feel that you trust that attorney and that attorney is...You're able to get a hold of them, get return calls, that they're forthcoming with information to you, and that they're explaining the process to you. If you're not comfortable, you should probably look for another attorney.
Randy: Excellent advice. Dan, I want to thank you for sharing your insights with us today. It's really been helpful. I know our listeners are going to glean a lot of very valuable information from it. If want to learn more about Dan Kaminsky, you can go to www.lawofficeofdanielkaminsky.com or call 920-322-1375. Dan, once again, thank you for sharing your insight.
Dan: I enjoyed it, thank you very much.
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