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 Designa Settlement Funds or Qualified Settlement Funds. These funds are usually collectively referred to as Quali Settlement Funds (QSFs). The purpose of these funds is to permit a defendant in certain types of litigation deposit funds into a trust and to receive a full and complete release of liability. The defendant is entitled to a cur income tax deduction for the amount paid into the fund at the time the funds are deposited into the trust. This is exception to the general rule under which the tax deduction is not permitted until the funds are actually disburse 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 o types of cases where there are multiple plaintiffs. Many of these cases also have multiple defendants. The QS usually established prior to trial. The parties agree on a maximum amount for a settlement. The defendant p that amount into the QSF and the parties can then take their time in allocating the settlement among themsel and in dealing with various liens, such as Medicaid, Medicare, and third party subrogation. The QSF could also 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 utilizin QSF a defendant can pay and go. The defendant pays the funds into the QSF and parties later allocate the settlement between themselves, determine how much should lump sum and how much to structure, determine whether a special needs trus required, and wait while a guardian is appointed for an incompetent plaintiff, if require
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Defendant Removed from Allocation of Settlement. Where 468(b) trusts are used, defendant leaves to the plaintiff the issue of allocating the settlement among inju parties.
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Plaintiff’s Attorney’s Fees and Costs. When a 468(b) trust is used, the plaintiff’s counsel be paid fees immediately from the QSF and litigation expenses can also be paid.
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Income to Plaintiff. The plaintiff will immediately begin to receive income from the settlem
held by the 468(b) trust. Without the trust, the defendant would be holding the mo and the plaintiff would not be receiving the benefit of the income. •
Deduction to Defendant. Defendants and their insurers are able to obtain immediate deductions, rather than waiting for “economic performance” to occur.
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Negotiations. Time is no longer a factor in negotiations with Medicare, Medicaid, and t 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 Mooresto Stone Harbor and Lawrenceville, New Jersey and Oxford Valley, Pennsylvania and can be contacted at 800-5 7227. The firm services southern and central New Jersey and eastern Pennsylvania. Tom Begley Jr. is one of speakers with Kenneth Vercammen at the NJ State Bar Association's Annual Nuts & Bolts of Elder Law and 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 CD1 New Client schedule appointment .doc2 Confidential Will Questionnaire 3 Will bill.doc4 WILL DRAFT CO 5. Doctor Cert sign POA, will Dr.doc6 Thank you for Referral_.doc7 POA DRAFT lt.doc8 Will Signing Instruction.doc9 Referral Out Another Atty fax.doc10 No rep.doc11 Recommend Will to Cl.doc12 Post WILL.doc13 Client questionnaire end case. 14 POA Grantor Now.doc15 Wills article 25.doc16 POA Power of Attorney- article17 LIVING WILLS.doc18 Gay and Lesbians- Advance Directives.doc19 Letter of Instruction.doc20 Remove Executor.doc21 Alzheimer, POA Guardianship.doc22 ANSWERS to Questions Probate.doc23 Estate Planning 10 Ideas.doc24 Executor Duties.doc25 Prenuptial Ag.doc26 Undue Influence article.doc27 Attorney- Client Confidentiality.doc29 Executor to Pay and Notify Cred.doc29 If no Will.doc30 NJlaws website & articles.doc31 Trusts.doc32 Caveat to Will.doc33 Central Jersey Elder articles.doc34 ABA Estate Plan Winter 2008 .doc35 Estate Plan
ABA Nov 2007 .doc36 ABA ELDER News Aug 2007 GP.doc37 ABA ELDER LAW COMMITTEE Newsletter July 2007 ABA General Practice.doc39 Estate Probate ABA news May. 200740 Elder Law ABA news Feb.doc41 partition suits.doc42 INTESTACY .doc43 Lincoln 17- no charge 44 Guardianship bill45 RETAINER Probate ESTATE46 WILL - sign front notary47 Confidentiality Lt to Client48 Elective Share of Spouse.doc49 Joint Bank Accounts Upon Death.doc50 Probate Release Refund Bond.doc51 Pick Up old Will52 Index to Documents53 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 Stre 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 Riverside Ballroom (3rd Floor)
8:30 a.m. – 10:00 a.m.
Sheraton
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 T 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 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 te 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 Resea 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 S 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 Delegatesat-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/