NEW ORLEANS, LA — In a previous entry to this blog, we discussed the dangers of legal funding loans. The chief concern is that by the time your case is settled, the amount such third party lenders will say you owe is significantly greater than the principal plus lawful interest you’d have been charged with an ordinary loan. Yet even with this serious downside, legal funding, or lawsuit loans, are growing in popularity in the United States, leading some opponents to challenge the growing industry in ways that can affect your lawsuit.
The most prominent of these is the U.S. Chamber Institute for Legal Reform, an affiliate of the U.S. Chamber of Commerce, which suggests not only that the legal funding industry is investing close to $1 billion annually, but that greater transparency is needed. To achieve this goal, they seek to add a provision to Federal Rule of Civil Procedure 26(a)(1)(A) which would require the disclosure of any compensation agreements that are “contingent on, and sourced from, any proceeds of the civil action, by settlement, judgment, or otherwise.”
The concern is not only that these companies disproportionately target lower income people who cannot afford the financial hardships that follow a serious accident, by charging them large and excessive fees for small sums of badly needed money. Opponents of lawsuit loans also raise concerns that this funding has the potential to create conflicts of interest, or even facilitate fraud. Courts must now consider whether or not to compel plaintiffs to disclose if they have taken legal funding, and from whom, and even require them to produce the contracts they signed to receive such funding. The Northern District of California has gone so far as to order the disclosure of people or entities who “fund[ ] the prosecution of any claim or counterclaim” in a proposed class, collective, or representative action. And the International Bar Association’s (IBA) 2014 Guidelines on Conflicts of Interest in International Arbitration require disclosure of any party with a “direct economic interest” in a potential award.
If defense attorneys discover the identity of your legal funder, they will investigate any possible connections between the funding company and other parties involved in your case. Furthermore, gaining access through discovery requests to the contract you signed with the lender, or the application you filled out wherein you described your case, might cause additional complexities for your lawsuit. Where legal funding is tied to medical funding, not only is the client required to pay interest and fees on money used to pay for his health care, unscrupulous medical providers may engage in corrupt business practices to inflate the cost of your medical care. The insurance company will unknowingly pay more for a medical procedure than it is worth. The inflated cost, if uncontested by your attorney, will then be deducted from your recovery, and you will pay interest, fees, and charges on money used to pay that inflated cost.
On the other hand, the legal funding industry has countered that their services “level the playing field,” allowing small business and individual claimants to pursue litigation against “big business.” They argue that legal funding also helps plaintiff attorneys who work on contingency, as plaintiff attorneys must fund medical treatment and legal costs for their clients, which they will be compensated for when and if a settlement is reached. Less established attorneys may not have sufficient capital to fund many cases at once, nor do they have the sort of physical collateral to build a relationship with a bank which would allow them to handle client costs with only the lawful and minimal interest attached to the loan.
Despite the arguments on both sides, lawsuit loans are legal in Louisiana and likely here to stay, at least for now. As a plaintiff, you must decide if your needs are great and urgent enough to be worth the high fees and charges you will have to pay should you choose to make a loan against your case. If the U.S. Chamber Institute for Legal Reform and its allies have their way, choosing to contract with litigation funders will add further complexities to your case.
If you’ve been in an accident, the smart choice is to contact an established attorney who can pursue your claims without weighing your case down with unnecessary fees and costs. The de Boisblanc Law Firm, serving the Southern Louisiana region for over fifty years, has the experience you need to secure justice for your injuries while minimizing your costs.
NEW ORLEANS, LA — If you’ve been involved in a lawsuit, it’s likely that your opponent requested or obtained your cellular phone data. Plaintiff and defense attorneys both seek cellular phone data during the discovery period of your case, especially following a car accident. The most basic reason to access a driver’s cellular records is to help determine if he or she was distracted at the time of the accident, perhaps illegally texting and driving. This can help a fair and just resolution of a motor vehicle claim.
However, modern cellular phones are more accurately considered personal computers. If a law firm obtains full or even partial access to your cellular phone, they won’t just be able to determine if you were texting while driving. They could also potentially obtain such personal information as what medications you take, what internet sites you visit including dating sites, or your political or religious affiliations. The potential for an inappropriate and unnecessary invasion of a client’s privacy is such a serious concern that courts must consider the benefits of granting an adversary access to a citizen’s cellular phone, even in criminal cases.
The decision of one criminal case heard before the United States Supreme Court, Riley v. California has had strong implications for civil discovery. In Riley, the Court considered whether or not police could perform a warrantless search of a cell phone found in the pocket of an arrested person. Chief Justice Roberts, delivering the opinion for the Court, noted that “The storage capacity of cell phones has several interrelated consequences for privacy. First, a cell phone collects in one place many distinct types of information—an address, a note, a prescription, a bank statement, a video— that reveal much more in combination than any isolated record. Second, a cell phone’s capacity allows even just one type of information to convey far more than previously possible. The sum of an individual’s private life can be reconstructed through a thousand photographs labeled with dates, locations, and descriptions; the same cannot be said of a photograph or two of loved ones tucked into a wallet.” The Supreme Court decided that the potential violation of privacy as well as the broad scope of information contained within a cell phone’s “immense storage capacity” took precedence over all other concerns.
Almost immediately after this decision in a criminal matter, Riley was cited in opposition to civil discovery requests. A federal district court in Connecticut denied plaintiff’s request for data from defendants’ cellular phones in Bakhit v. Safety Marking, Inc, et al, stating in part that “The implication of the individual defendants’ privacy interests in the data stored on their cell phones also persuades the Court to deny plaintiffs’ motion. This conclusion is further reinforced by the recent Supreme Court ruling in Riley v. California, Nos. 13-132 and 13-212, 573 U.S. __ (June25, 2014), which recognized, albeit in the criminal context, the privacy concerns implicated by the modern cell phone.”
As technology continues to advance, lawmakers must endeavor to keep pace with new developments and consider the ethical obligations that new technology—whether it be cellular phone storage or genome sequencing—impose upon our society. In 1816, Thomas Jefferson warned that “Laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times.”
If you’re involved in a motor vehicle accident or otherwise considering or involved in civil litigation, it’s critical that you select a law firm that takes the advance of technology and the legal challenges it prevents as seriously as it takes the defense of your rights. The experienced attorneys at The de Boisblanc Law Firm understand today’s technological advances, and know how to use technology to your advantage without allowing your adversary to infringe on your privacy and rights.
NEW ORLEANS, LA — Tis the season in New Orleans! In a city known worldwide for its dedication to the Good Times, residents and visitors alike will be making extra merry for the one hundred and three days between Thanksgiving and Mardi Gras. Whether it’s a private party at a friend’s home, a dinner celebration on the town, a day at the racetrack, or one of the many Carnival parties, balls, and parades, New Orleans offers ample opportunity for conviviality during the holiday season. Unfortunately, all of the merriment increases the risk that you, or someone you love, could be involved in an alcohol-related motor vehicle accident.
Drunk driving claims more than 10,000 American lives per year. In 2016, an average of 29 people died per day, or one person every 50 minutes. In 2014, 300 hundred Louisiana residents were killed in motor vehicle accidents involving drunk drivers.
A large number of these preventable fatalities occur during the holiday season. Tragically, 781 Americans lost their lives due to drunk drivers in the month of December, 2016, and an average of 300 people per year lose their lives due to drunk driving during the week between Christmas and New Year’s Day.
While nationally New Year’s Eve is one of the most dangerous single holidays when it comes to drunk driving injuries and fatalities, in Louisiana, Mardi Gras can often be worse. In 2009, alcohol played a part in 48% of motor vehicle collision fatalities; during Mardi Gras, that percentage spiked to almost 70%.
There are many actions savvy celebrants can take to reduce alcohol related fatalities and injuries during the holiday season. Hosts and hostesses can play a part in increasing the safety of their guests by simply serving non-alcoholic beverages alongside wine and spirits. Hiring or recruiting a volunteer bartender allows alcohol consumption to be monitored, giving a hostess the opportunity to determine if a friend has had one too many. Often times, simply asking a guest if he or she has a safe and sober ride home encourages responsible drinking behavior, and it may save that friend’s life.
Party-goers should plan their transportation in advance. Although the designated driver, who volunteers to abstain from alcohol for the evening, is always a wise choice, there are other options for the crew who wants to roister together. The prevalence of ride-sharing services like Uber or Lyft might be responsible for a reduction in drunk driving. Ride-sharing and traditional taxi cabs allow revelers to enjoy their evening without worrying about designating a sober friend. Leaving your car at home before the night gets started all but ensures that a poor transportation choice won’t be made later on, when inhibitions are lowered and courage is up due to alcohol consumption.
Unfortunately, even the most responsible person can become the victim of a drunk driver. In that case, it is always advisable to retain an attorney to help recover compensation for damages caused under these tragic circumstances. The experienced attorneys at The de Boisblanc Law Firm offer free consultations to victims of careless drivers, and are committed to helping victims seek the justice they deserve.
May your holiday season be dazzling, merry, and most of all, safe!
NEW ORLEANS, LA — Being involved in a car accident is traumatic enough; but what happens when the at-fault driver lacks insurance to cover the costs of the damage he caused? The motorist who is the victim of a collision with an uninsured driver might find himself unable to pay necessary medical expenses, or lacking money to pay his bills should his injuries cause him to miss time from work. Recent studies indicate that uninsured drivers cost motorists and insurance companies a whopping $2.6 billion dollars in the year 2016 alone.
It’s important that motorists understand the risks of being involved in a collision with an uninsured motorist – and understand what they can do to protect themselves.
While carrying automobile insurance is the law in every state, except for New Hampshire, approximately 13% of Louisiana drivers operate uninsured on our roads, roughly on par with the national average. This means that more than one of every ten vehicles we pass on our daily commutes are uninsured for any damages they might cause in a collision. Car accidents cost an approximate $260 billion per year, from small fender benders and soft tissue injuries, to major collisions with life-altering consequences for the victim and his family. It’s important that motorists protect themselves and their families from this threat.
One way to minimize the consequences of being struck by an uninsured motorist is to purchase uninsured/underinsured motorist coverage. In many states, especially those with a higher-than-average percentage of uninsured motorists, this form of insurance coverage is mandatory, but in Louisiana a motorist can choose either to purchase uninsured/underinsured motorist coverage, or to decline this additional protection. This protection may be exclusive to medical payments, economic loss coverage, or it may provide full protection that will take into account the pain and suffering you may endure in a collision as well as providing much needed funds for medical bills and economic loss.
As the name suggests, uninsured/underinsured motorist coverage doesn’t just come into effect if you’re struck by an uninsured driver. Louisiana law provides that motorists must carry minimum coverage of $15,000.00 per person, $30,000.00 per accident, and many motorists purchase only this minimum, which can quickly be exhausted by medical bills. Uninsured/underinsured motorist coverage protects you in the event that your damages exceed the amount of coverage held by the person who hit you.
It’s important to protect ourselves against risk, and our mandatory liability insurance protects us against being held financially responsible for the damage we cause another person in a collision. But uninsured/underinsured motorist coverage is essential for the driver who wants to protect himself against the damage caused to him by a motorist who violates the law and doesn’t purchase any insurance, or in instances where the insurance coverage on a vehicle that hits you isn’t enough to cover your damages. Another important part of protecting yourself and your rights, if you’re in a car crash, is to consult with an attorney who understands how to recover as much as possible for the damages you’ve suffered. If you’re in a car crash, the experienced attorneys at The de Boisblanc Law Firm are ready to schedule you for a free, no-obligation consultation today.
NEW ORLEANS, LA — Chances are, the car you drive has a black box, also known as an Event Data Recorder, and it’s there to monitor almost all you do behind the wheel. If you’re in a crash, that EDR is able to supply such information as your speed, break use, engine throttle at the time of impact, and data from a dozen other mechanical categories, including whether or not you were wearing your seatbelt at the time of a collision. When a motorist is driving, the EDR continuously records data, but only in the event of a collision is that data stored, so that it can be retrieved by accident reconstruction experts, insurance companies, and even courts.
An Event Data Recorder has many useful functions. In some car accidents, it can be difficult to determine fault. When the EDRs of vehicles involved in a collision are analyzed, accident investigators or reconstruction experts can often determine which party was at fault, helping the victims of careless drivers find justice and compensation for their injuries. Event data recorders also help fight insurance fraud, which helps insurance companies save money and charge lower rates to customers. An EDR can help an insurance company determine the severity of a crash, so that it can analyze a claimant’s injuries and better ensure that the injuries make sense in the context of the crash. Some EDRs also record whether or not a seat was occupied at the time of collision. And finally, an EDR helps fight back against staged accidents.
The EDR can even help save lives. When accident investigators explore the data saved in the EDR of a vehicle involved in a catastrophic collision, they aren’t just able to analyze dangerous driving practices, they can determine if the vehicle encountered any mechanical failure, such as a failed airbag deployment or a faulty breaking system, which led to injury or loss of life. If the failure is the result of some deficiency in manufacturing, an automaker can enact a recall to solve the problem, perhaps saving many lives.
However, in spite of all of the benefits of the EDR, some believe that Event Data Recorders invade our privacy. In today’s world, it’s concerning that a computerized device in our vehicles might be used to determine where we go and when, potentially revealing other personal details about our lives. Americans are concerned over who can have access to the data stored in their EDR. Might an employer, or some other third party, be able to access that information? The Driver Privacy Act of 2015 aims to address these concerns. Unless authorized by a court, necessary to provide post accident medical treatment, used to carry out investigations that are authorized by Federal Law, or anonymously used for purposes of traffic safety research, the owner of a vehicle owns his EDR data, and a third party must obtain his consent before accessing his driving data.
Technology such as the Event Data Recorder will continue to evolve and enhance, as will questions and concerns about the potential uses of such data. It’s important for motorists today to realize that their vehicle is most likely equipped with an EDR, and that the EDR will help them understand just how a crash happened, should they be involved in a motor vehicle collision. If you’re involved in any motor vehicle accident, it’s important to consult an experienced attorney like the attorneys at the de Boisblanc Law Firm, who can help you protect your rights, and seek compensation if another party’s negligence has injured you.
You’ve been injured in a car accident, and you’re ready to have an initial consultation with an attorney. You want to come prepared to this crucial appointment, but you’re not sure what to expect, or what information your attorney will need to get started.
Every personal injury case is different, but at your initial consultation you can expect to discuss the following three things: the accident itself, your health care needs, and your property damage.
At your initial consultation, your attorney will ask you important questions about the accident, and gather the contact information for any witnesses you may have. If you’ve taken pictures of the accident scene, you’ll be asked to text or email them to your lawyer’s office, so that the photographs can be used to help determine liability, or to help reconstruct the accident should your case go to trial. If you were wise and called the police, you’ll need to give your attorney the item number on the “auto accident information exchange” form, which will have been filled out by the responding officer, so that a full crash report can be obtained.
Securing proper health care is the next step at your initial consultation. An established law firm should be familiar with local health care providers, and will be knowledgeable about providers best suited to your particular injuries. According to Medscape rear-end collisions are most likely to cause injury to the neck, while front and side collisions commonly injure the spine or back. Neck and spine injuries often require expensive diagnostic imaging tests. The right attorney will be able to assist you with making arrangements for the funding for your treatment, without directing you to take high-fee “legal funding loans” that quickly deplete your future recovery. At your initial appointment with your attorney, you’ll need to sign a HIPPA release form authorizing your attorney to communicate with your doctors. Regular attendance at your medical appointments is essential to the success of your case, so at your first appointment with your attorney, be sure to mention any possible obstacles you may have to medical treatment, such as lack of transportation or regularly anticipated scheduling difficulties. This way, arrangements can be made–such as finding a provider with more convenient hours, or assisting you in obtaining a rental car–to make it easier for you to see your doctor.
Repairing your vehicle will also be discussed. Your attorney will contact the responsible driver’s insurance company to make arrangements to pay for the repair work, or to reimburse you for as much of your property damage expenses, should you have already had your vehicle repaired.
When you show up at your initial consultation, it’s important to have the following things:
- Your valid identification, along with your social security number
- A copy of the police incident report
- Any photographs you were able to take at the scene of the accident
- Any property damage repair bills you’ve had to date
- Discharge papers from the hospital emergency room
- All names and contact information of any witnesses to the accident
- Proof of automobile insurance, as without valid insurance, you will be unable to recover any damages, even if the other party was completely at fault
Being prepared for your initial consultation helps to get your case in motion. Recovering compensation for damages you received in a motor vehicle accident can be a lengthy and complicated process, but when you come prepared to your initial consultation, your attorney is able to go to work right away on your case. At The de Boisblanc Law Firm, our attorneys are well experienced and will assist you through every step of the process of getting you the recovery you deserve. And as always, your initial consultation is free of charge, and our attorneys only get paid when you do.
NEW ORLEANS, LA — Can your child support debt be seized from your personal injury settlement? If you are a non-custodial parent with a pending lawsuit or settlement, it’s important that you are current on all child support obligations. Federal law classifies personal injury settlements as assets subject to seizure in cases of child support delinquency; therefore, if you are behind in your child support, your settlement will be seized to settle your obligations. In the past, custodial parents who are owed support would have to appeal to Child Support Enforcement to collect on a settlement. Today, this process is automatic.
When a non-custodial parent goes into arrears on his or her child support payments, that parent’s name is entered into a statewide database. In Louisiana, this database is known as the Louisiana Insurance Intercept Database. Insurance companies register with the LIID, providing the database access to information on all individuals making claims against the insurance company. LIID computers then scan claimant information against records of child-support debtors, looking for matching social security numbers and other identifying information. When a match is found, the LIID notifies the state Child Support Enforcement Office, the insurance company, and the debtor himself. A Notice of Income Assignment is generated, which transfers the delinquent parent’s right to the settlement income to the beneficiary of the child support order. Finally, the insurance company notifies the debtor’s attorney, who must comply with the Child Support Enforcement Office and the Notice of Income Assignment. After legal fees, medical bills, and property damage claims, the remainder of your settlement will be applied to your child support debt, and you will only receive whatever funds remain after your child support debts are satisfied.
Should a non-custodial parent feel there has been a mistake, and he does not owe child support, he may file a petition to stop the income assignment. He will then be required to go before a judge, so that the court can determine whether or not the debt is valid. If the debt is proven to be valid, the non-custodial parent will also be ordered to pay for the cost of the court proceedings.
Most insurance companies participate in the LIID, and your attorney is bound by law to comply with any child support enforcement orders and liens. Therefore, it’s essential that all non-custodial parents paying child support verify that they are not in arrears on their support payments, before they file a personal injury claim.
If you are in doubt about whether or not child support arrears can affect your recovery after an accident, contact an attorney at The de Boisblanc Law Firm today.
NEW ORLEANS, LA — Plaintiffs are often alarmed when defense attorneys request access to their social media accounts. After all, our social media can contain highly personal information, such as our political or religious views, or simply pictures and opinions that we’ve shared with our friends, but wouldn’t want others to see. Defense attorneys now routinely cast a wide net, requesting that a plaintiff provide his username, downloads of his entire profile, or even his password and authorization information, so that they can search for any evidence which might reduce the plaintiff’s claims. The implication is that if the plaintiff has nothing to hide, he will surrender all of his social media data for inspection.
However, the Federal Rules of Civil Procedure governing discovery, specifically state that “discovery requests must be relevant and proportional” to the matter in controversy. Recent court rulings demonstrate that social media shouldn’t be treated differently than more traditionally discoverable items, such as medical records or employment history. These rulings offer guidelines on how to determine what, if anything, of a client’s social media activity is discoverable to the opposition.
In Farley v. Callais and Sons, LLC, the United States District Court for the Eastern District of Louisiana rightly noted that any public social media post is already available to anyone wishing to see it, including opposing litigants. The Court then created a method of production which protected both the plaintiff’s right to privacy, and the defendant’s right to discovery of relevant information. Under the Farley v. Callais guidance, it is the client’s own attorney who reviews his client’s social media for claims-related posts. In this case, Farley’s attorney was instructed to review Farley’s social media, and produce to the defendants any posts pertaining to the accident or its resultant claims. Additionally, Farley was required to declare in writing that he had delivered all of this social media activity to his attorney, and Farley’s attorney would preserve that information in the event of any later dispute.
The Middle District of Tennessee, in Potts v. Dollar Tree Stores, took an even firmer position in the interest of a plaintiff’s privacy, deciding against giving the defense access to the plaintiff’s social media accounts because nothing in the plaintiff’s public activity related to his claims, and thus there was no evidence that further inspection of the plaintiff’s social media would lead to discoverable evidence regarding his claims against Dollar Tree.
If you’ve been involved in an accident, it’s extremely important that you do not delete anything from your social media pages, as this could be considered spoliation of evidence. If your attorney files a lawsuit, and the opposition requests your social media information, your attorney should protect your privacy by ensuring that the defense’s requests are in fact relevant to your case.
Contact an attorney at The de Boisblanc Law Firm today, who has the experience needed to protect your rights while securing you the recovery you deserve after your accident.
NEW ORLEANS, LA — In the aftermath of an accident, worry over bills causes additional stress to plaintiffs and their families. Lawsuit loans, commonly known in the industry as “legal financing,” appear to offer a promising way to secure funds while a case is litigated. However, some critics say that lawsuit loans are actually trapping vulnerable clients into contracts with fees that can equal more than 100% of the principle advanced.
The danger in lawsuit loans comes from the fact that they aren’t considered loans at all, but rather, are sold as “advances” or “purchased interest” in a client’s pending litigation. Since legal financing companies aren’t technically making “loans”, they aren’t bound by Louisiana’s usury laws, which restrict interest on most loans to 12%. In one typical case, a client struck by an 18-wheeler secured a $2,000.00 advance against his future settlement. The finance company charged a $720.00 processing fee, and if the client repaid the advance just one day after he took it, he would have owed $3,808.00. If his litigation continued for two years, the total amount he’d owe the finance company would be $7,072.00. A client is obligated to repay his advance, plus all agreed upon fees, before he receives any recovery from his own case.
Consumer advocates and lawmakers around the nation are concerned with what some see as the predatory nature of lawsuit loans, but very little regulation exists. Just five states have any sort of laws on the books regarding lawsuit lenders, and Louisiana isn’t one of them. A 2014 bill authored by Senator Dan W. Morrish, which sought to provide some structure for legal financers operating in Louisiana, didn’t clear the legislature. Instead, the industry sets its own professional standards through the American Legal Finance Association. Those lenders who become members agree to a Code of Conduct with provisos against such behavior as interfering in a client’s litigation, or intentionally advancing money in excess of what the case is worth. There is no need for a finance company to join the ALFA, in order to offer its services to the public.
Most attorneys will advise a client to exhaust any other means of securing a loan, before signing up with a legal financing company. As a last resort, lawsuit loans provide clients with money needed to pay medical bills or cover expenses after an injury, and because the lender is advancing money against a settlement, a client with a negative credit score or lack of traditional collateral can still receive funds. But the cost of such a loan can be astronomical, and may significantly reduce any recovery the client is able to get out of his settlement.
If you’ve been injured in an accident, it’s essential to contact an experienced attorney who will provide you with the best guidance on how to recover the maximum settlement for your injuries. Call The de Boisblanc Law Firm today at (504) 762-9418.