QuestionQUESTION: I just.had a mediation.my lawyer was using a scare tactic to make me accept alittle settelment.I was hit by a car and get injured on foot and my back .iwas diagnosed with RSD . Rsd is spreading on my other feet and my hands.I'm having pain all the time.my life is totaly changed.and this kind of disease cost to much to manage.by the way I was a pedestrian when I got hit can you please give an idea how much is a fair settelment ?,and why my lawyer is not pushing for a fair settelment when he understand the severite of rsd.thank you.
ANSWER: Dear Ahmed,
I am sorry to hear of your affliction. Bottom line: I want you to get a second legal opinion ASAP. I suspect that your attorney does not have the proof of your disease ready for an upcoming trial, and he is trying to beg off with an inadequate settlement. Just my hunch. His decision could be based upon the fact that your doctor offered only moderate support of the connection between the trauma you suffered and your disease. Who knows? Someone else is going to have to get a look at the file. Hence, the necessity to act quickly and get a second opinion.
This is a very difficult disease to suffer AND, unfortunately, it is also very difficult to prove in court. That is because of FOUR reasons.
First, the causes are multiple, and while trauma is listed, so are a great many other common causes.
Second, most trial attorneys are not competent to make a courtroom proof of the disease, so they want to shy away and settle early.
Third, most doctors are not competent witnesses for the proof, and the defense hires experts that are better than the plaintiff's doctor.
Fourth, unlike a broken bone or any other injury that can be shown by objective evidence, much of the RSD symptoms are purely subjective, such a heat and pain, etc. Hence, there is no way to prove or disprove whether or not the victim is telling the truth. Soooo, this disease is a lot like traumatically induced fibromyalgia: hard to prove and subject to a great many losses in court because the jury is not convinced.
As you can see from the bio on trial lawyer work Dr. Settlement is most experienced in personal injury insurance claim settlements. But even with all of my experience, I have NEVER EVER encountered a claim involving Reflex sympathetic dystrophy (RSD). Hence, I am not at all equipped to even venture a ballpark guess as to value.
I had only one fibromyalgia case, and I smartly transferred that to an attorney who specialized in that kind of case. The reason I want you to get a second opinion is that attorneys who specialize in either RSD or fibromyalgia claims KNOW the right experts to call to review the case and to testify. That is the ONLY way to get fair value from such cases.
The average general practitioner attorney is NOT COMPETENT to try a case like this and get full value. He can try it and the result MIGHT be good, or it might be bad. Hence, the great number of failures in proof of fibromyalgia cases. BUT, if the attorney is experienced, and if you hire the right doctors, THEN the results can be a VERY LARGE SUM indeed. The reason for that is the pain and suffering you are now going through, PLUS, the future deterioration that can come with this disease.
You can see why we did not have any help for you on guessing at a value. What I can do, however, is to confess to you that I, too, did what your attorney is trying to do to you whenever I had a case that I did not think was going to be a solid winner. In other words, when I had a case that could go either way, and which I did not truly believe in, and which was going to be difficult to prove, then I would do just as your attorney is doing, and try to scare the client into accepting a moderate settlement.
Is this wrong? NO, so long as the compromise is made for legitimate reasons such as only moderate support in your medical records. But if the compromise is being pushed because the attorney is out of his league in trying a case he knows little about, THEN it is time to consider getting a new attorney.
I take it that the mediation has been scheduled pretty far down the line, after depositions, and so forth. Usually they come within six months of the trial date, and if that is the case, you need to hustle to get that second opinion. Call around and ask ONLY about attorneys who have handled traumatically induced auto immune system disorders. RSD might not be too common, but if you can find an attorney who has handled a fibromyalgia case, then that would be a good choice for a second opinion.
This new attorney will be able to tell you whether or not your present attorney has assembled a good group of witnesses to prove your claim. If not, then I would hire her on the spot and let her give notice to your existing attorney to send over the complete file, along with his notice of withdrawal and substitution of attorneys. Do SOMETHING now, Ahmed, or you will regret it later once you accept the offer. This is not to say that the offer in mediation is a bad one: we JUST DO NOT KNOW. That is part of the purpose of getting another attorney to ask for the file, so she can let you know whether or not your present attorney has done what needs to be done.
So, DO NOT worry about getting the file yourself. Find the attorney first, and let her arrange to have the file send over to her office. Your present attorney is not going to yell at you or anything. This is potentially a big claim and he ought to want to be sure that you get a proper award.
I trust that my time here has produced some information that has been of value to you, and thus I would respectfully request that you take the time to locate the FEEDBACK FORM on this site and leave some feedback for me.
Best Wishes,
Dr. Settlement, J.D. (Juris Doctor)
http://www.SettlementCentral.Com
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QUESTION: I want to thank you first for your time.I want to ask you if I can change the date of the trial to later date , becuse the trial is very close I have only 40 days .do you think I still have time to change lawyer.the only way is change the trial date ,that way I'm going to have enough time .can you please tell what to do ?I really appreciate your time .thank you very much .
AnswerSECOND FOLLOW-UP ANSWER---NEEDS IMMEDIATE ATTENTION
Hi Ahmed,
Thanks again for the good feedback. I thought of one more idea overnight. And when one sleeps on a topic, sometimes Spirit comes to you and a good idea comes from it. In this case, I think the idea I have now is your best shot.
It entails doing three things.
#1 learn about Reflex Sympathetic Dystrophy (RSD) from the website linked below, and in particular, read about how the attorneys look at such a claim and compare it to your own attorney's work.
#2 contact one of the attorneys listed on the site and speak with her—or, if not available, then ask for her assistant. Speak with SOMEONE to find out what kinds of witnesses they use. Look at the psychological side of the case and ask about the proof there as well. Take good notes so that you can put those into your letter to your own attorney.
#3 write a letter to the attorney in the format I am going to make for you and deliver it to the attorney. Incorporate what you have learned from your phone call to the attorneys into this letter.
Here is the website:
http://www.rsdinfocenter.com/
http://www.rsdinfocenter.com/rsd-clinical-features.html
http://www.rsdinfocenter.com/rsd-impact-burden.html
http://www.rsdinfocenter.com/rsd-legal-help1.html
http://www.beltlawfirm.com/reflex-sympathetic-dystrophy.asp
I have sent an e-mail to this firm about your claim, and I hope to hear from them early this week. So I want you to do two things ASAP.
#1 go to my personal injury self help www.SettlementCentral.Com insurance claim site, and hit the "contact us" button and send me a message—mark it for Dr. Settlement and mention that you met on allexperts.com so that I get the message ASAP.
#2 let me know the state that the lawsuit is in; and the date of the accident; and the approximate total of your medical specials; and what kind of other pains you have had; and whether or not you know of any experts your attorney has filed for trial; and whether or not you have had any of the psychological problems that the site above mentioned.
#3. IF WHAT YOU HAVE TOLD ME IS ACCURATE, and the attorney has not made preparations for trial with an expert nor gone into your psychological damages, then, consider sending him a letter telling him to either prove that he is prepared or withdraw and get a continuance.
You could send your attorney a letter telling him that you lack confidence that he is prepared for trial and challenging him to do one of three things: (1) bring you in and show you his file with trial preparations and the expert witnesses he is going to call to prove your claim; or (2) refer you to another attorney and agree to support a continuance along with his withdrawal; or (3) petition the defense and the court for a continuance so that he can withdraw since you want to fire him.
ATTORNEY FEES AND COSTS
This is a matter for the new attorney and your existing attorney to agree upon. You ONLY PAY ONE FEE—even though there are two attorneys. The attorneys will decide how to split the fee. Nevertheless, you might have to pay a higher fee to the new attorney for two reasons. First is because of the emergency nature of the work you are requesting. Second is because RSD claims are more difficult to prove and the risk of failure is higher, the contingency fee might be higher. Anyway, so what—if the new attorney does well with the RSD claim it will be a lot better than going to court with an attorney who is not prepared.
If you do your research as I suggested, and if you do believe that there is a lot of work your attorney has not done, then I would deliver that letter by hand TOMORROW.
Here is an idea to start with. You MUST make it accurate to your circumstances, of which I know nothing other than what you have told me.
Xxxxxxxxxxxxxxxxxxx
Dear Attorney,
I am writing to request that you demonstrate to me that you are competent to prosecute my case to a successful conclusion and that you have made all necessary preparations to do so. If you are unable to do that, then I would like you to arrange to withdraw from my case, AFTER you have secured a continuance of the trial date, OR after a new attorney has appeared and a continuance has been secured.
Your performance at our recent mediation was very revealing to me. I saw that you were desperate to avoid presenting my case at trial. You have led me to believe that you were competent to represent me in this matter, but it now appears that you are lost and have no real trial preparations in place. If appears to me that you are pushing hard to settle my claim at a fraction of its value because you have not prepared for the forthcoming trial. At this stage, with such scant preparation as it appears you have made, is that competent trial attorney work? If a defense verdict or a verdict that ignores the value of my Reflex Sympathetic Dystrophy (RSD) claim were to be returned, would your malpractice carrier agree with you that you had done a professional job in representing this claim?
I have learned elsewhere that proof of a traumatically-induced autoimmune disorder such as RSD is difficult and will require expert testimony in addition to the diagnosis of my doctor. Furthermore, the information I read explained how my psychological problems I have had are attributed to the RSD. And they showed that the attorneys always look for (and arrange help for) such emotional distress problems with RSD victims. You offered no such insight; nor have you prepared any expert testimony in this respect.
I am not aware that you have arranged for any expert testimony. Please correct me if I am wrong in this assumption by furnishing the name and curriculum vitae of the expert you intent to call at trial. Since I was kind of shocked to see your near-panic at the prospect of having no settlement and having to face a trial, I was confronted with the prospect that you were pushing so hard because you had not done your trial preparation work.
I DO HOPE that this is NOT the case and that you will be able to show me the witness preparations you have made. I have learned that at this late stage it is impossible for you to go out and secure an expert witness, unless of course you can get a judge to allow it.
Please forgive me if I am wrong and your file reflects that as of this date you are fully prepared to prosecute my claim through a jury trial. But I hope that you can also appreciate my grave concern that your lack of preparations might cost me many tens of thousands of dollars in lost damages. If your existing witnesses are not qualified as true experts in such diseases as I have, how can I expect that a jury will understand and believe that my disease is a lifelong sentence to pain and suffering?
If in fact my intuition is correct and you have not made adequate preparations for trial, what do you propose to do at this stage? You cannot force me to accept a mere fraction of an award just because you did not do your job. So it would then be up to you to figure out how to get yourself out of this mess.
I am willing to hire another attorney, provided you can arrange a continuance of the trial date. I have no idea whether the defense would agree, nor what excuse you would present to the court should you have to make a motion. I do think that I am entitled to competent representation, so if I made the motion, or if the motion were made by a new attorney, perhaps a continuance could be granted.
As for fees and costs that would be owing to your office, it is my understanding that you may not exercise a possessory lien on my file, and that the new attorney and you will arrange to split the fees in accordance with the work you each put in on the file. I would leave that up to you two.
I sincerely hope that I am wrong in my suspicion that you are not prepared to prosecute my case at trial. But at this stage, it is not just the lack of an expert witness that would concern me. For if in fact you intended to go to trial with simply the diagnosis of my treating doctor, then that alone would lead me to believe that you are not experienced in trying a case such as mine. If that is the case, that you lack experience in trying a traumatically-induced autoimmune disorder case, then did you not then and there owe to me the duty to reveal YOUR LACK OF EXPERIENCE as soon as you discovered the RSD diagnosis?
Mine is a lifelong sentence to pain and suffering and attendant emotional distress—and thus should be considered a serious case requiring experience to handle. I would NEVER have agreed to be the first autoimmune case for you to cut your teeth on, to be your learning experiment. Hence, in addition to the disclosure of the expert witness and your file preparations, I would like for you to show me your experience in handling a case such as mine.
Since time is of the essence, please respond ASAP. At this stage, a phone call will NOT suffice. I would like a written response to this letter. In light of the late hour, you may use e-mail. My e-mail address is: Ahmed@xyz.com.
Very Truly Yours,
Ahmed
xxxxxxxxxxxxxxxxxxxxx
OK, Ahmed, THAT ought to get his attention. I hope that he is fully prepared to try your case and that you are wrong to suspect otherwise. But if he is not, then I will help you to make some suggestions for him to work his way out of the mess he created.
I trust that my time here has produced some information that has been of value to you, and thus I would respectfully request that you take the time to locate the FEEDBACK FORM on this site and leave some feedback for me.
Best Wishes,
Dr. Settlement, J.D. (Juris Doctor)
http://www.SettlementCentral.Com
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Hello again, Ahmed,
First off, thank you for the kind feedback you left for me. I do appreciate that.
Now, on to your question. I just KNEW that this could be a problem since these mediation sessions do come near the end.
There are two ways to get the trial continued. The first way is for the defense to agree to it. If they will not do that, then your new attorney has to force the court to order a continuance since through no fault of your own, you have incompetent counsel. That is a tough charge to make stick, BUT if what has happened in your file is what I suspect has happened, then I am guessing your attorney is NOT READY FOR TRIAL. Hence, IN THE INTERESTS OF JUSTICE, the court MUST grant a continuance.
At least that would be my argument. What I would do is FIRST focus on your present attorney and ask yourself whether or not he appears to have the case prepared. My guess is that you will say, "No".
Next step is to find an attorney who has handled some similar claim. Fibromyalgia is a close relative, so anyone who has handled a claim like that could help you. You can try the Martindale Hubble directory of attorneys in your area to see who lists this kind of claim. http://www.martindale.com/
You might have to offer an increased fee percentage to attract an attorney at this late date. If you can show that your existing attorney is borderline incompetent for failing to prepare the case with proper witnesses and depositions of the other side, then you DO HAVE A GOOD CHANCE that the new attorney will take the case.
Good luck on this Ahmed! And best wishes for a healing of your condition.
I trust that my time here has produced some information that has been of value to you, and thus I would respectfully request that you take the time to locate the FEEDBACK FORM on this site and leave some feedback for me.
Best Wishes,
Dr. Settlement, J.D. (Juris Doctor)
http://www.SettlementCentral.Com
