You are injured because of someone else’s wrongdoing, and you need a lawyer. How do you go about choosing a lawyer? First, you need to know what qualifications a personal injury lawyer should have:
Integrity: This is very important. It is a myth that you should have a “shark” for a lawyer. Personal injury lawyers must persuade jurors—people like you—to accept your claim of injuries. Jurors are intelligent. They are skeptical, particularly about lawyers. Persuasion depends on whether the jury believes you and your lawyer. A lawyer without integrity cannot persuade those twelve skeptics in the jury box. Moreover, you want a lawyer who will be honest with you. A lawyer who cannot be trusted to be candid with a jury or opposing counsel cannot be trusted to be candid with his or her client.
How to look for integrity: Stay away from lawyers who promise too much. If you see a lawyer on television or hear a lawyer on the radio whose promises seem too good to be true, they are.
Lawyers should be upfront with their fees, their services, and what you should expect. Ask the lawyer about this information at your first interview.
Lawyers should always keep you informed of the progress of your case. Ask the lawyer how he or she keeps the clients informed.
Smart lawyers: Look for a lawyer with skills in the area they need. Today, lawyers concentrate in different areas of the law. If a lawyer needs litigation help, for example, she will not seek the advice of a corporate or real estate firm, no matter how distinguished the firm. How do you find out about the lawyers skills? Ask. Ask friends and acquaintances. Interview the lawyer and do not hesitate to ask about qualifications. A lawyer should be prepared to tell you about his or her credentials and experience. Interviewing a lawyer has other advantages as well: if you are involved in litigation, you will be working with your lawyer for months, if not years. You will want to know if you and the lawyer are compatible. If your first impression is not agreeable, go to another lawyer.
In any litigation, legal costs are difficult to estimate, because the time spent on a case and expenses are dependent not only on the work we do, but on what the opposite party chooses to do, and how the court schedules hearings. However, because of my more than twenty years experience in litigation, I can give you information of what you can reasonably expect the legal costs will be in your case. These are the questions most often asked by our clients:
1. How much are court costs?
Court filing fees (as of February 2017):
Sheriffs fees: Between $30.00 – $75.00 (depending on where the party served is located, and how many times the sheriff has to make an attempt at service)
Subpoena fees: $30.00 or more
2. What office expenses should I expect to pay?
The following is a list of office expenses you can usually expect in a family case:
3. How do attorneys charge for attorney and paralegal work done in a family law case?
In family cases, attorneys and paralegals bill by the hour. Our office has a computer billing system which has a timing mechanism that keeps track of our time and automatically bills your account. Other offices may use paper slips or daily logs. Most offices charge for all time spent on your case, including telephone calls, conferences with clients, witnesses, experts and office staff; and attendance at court whether or not they are actually participating at the hearing, or waiting because the court schedule is delayed.
4. What other expenses can I expect?
The most costly expenses you can expect are for expert fees and deposition costs, if you need an expert or we need to take someone’s deposition. Some experts we use are: private investigators, forensic psychologists to help the court determine what is in your child’s best interest, property appraisers to determine the value of real or personal property, actuaries to determine values of pensions or annuities, financial experts to determine financial ability of a party to pay a spouse for his/her interest in marital property. Those costs may run from hundreds to thousands of dollars, but in a particular case may be worth the investment.
5. Do lawyers double bill when we are doing work for two clients?
Lawyers are not supposed to double bill, and we do not. For example, if I have hearings in court for two separate clients on the same day, I estimate the time spent in court for each client, and bill each client for the time spent on each case. If I am traveling to court for two clients, I bill each client half the travel time and half the mileage fee.
6. Why don’t I get credited with interest on the money in your client’s trust accounts?
Lawyers usually require that an advance fee be paid in cases involving hourly charges. That advance fee is placed in the lawyer’s clients trust account, and your funds are transferred to the lawyer’s operating account when they spend time or have an expense in your case. Lawyers do not earn interest on the clients trust account. Attorneys are not allowed to earn interest on their general clients trust accounts, and in the past, those funds could not be placed in interest bearing bank accounts. Approximately five years ago, the Vermont Bar Association required lawyers to place their clients trust monies into special interest bearing accounts called IOLTA accounts. The banks who have those accounts must be approved by the Bar Association, and the banks have a legal obligation to pay the interest directly to the Association. The interest earned goes to needy legal projects. In Vermont, most of the interest earned on IOLTA accounts is paid by the Vermont Bar Association to Vermont Legal Aid to help represent needy clients.
7. How much can I expect the total costs will be in a family law case?
It is extremely difficult to estimate the cost of a divorce. The cost can range from a low of $1000.00 if issues are totally uncontested, to tens of thousands of dollars if there is a great deal of litigation. You should talk to your attorney about what he or she estimates will be the cost of your case.
8. Can the court order my spouse to pay for my costs and fees?
Yes. The court can order your spouse to pay your attorneys fees, but it is within the court’s discretion. The court may or may not grant your request. The court will only order a spouse to pay attorneys fees when there is large gap between the parties’ income, and when you can show you are unable to pay your fees.
Divorces are costly, financially and emotionally. You should speak to your attorney about the costs of your divorce and how he or she will bill you so you can plan for the legal fees and expenses.
When you are obtaining a divorce in Vermont, you may make some mistakes that could be costly even after you have obtained your final divorce decree. Here are some to look out for:
1. Changes in child support: Here is a true story:
Dad agrees to pay a monthly child support amount for his four children. When each of the two oldest reach age 18, the parent decreases child support by one fourth. The third child decides to live with Dad, and for four years, Mom and Dad each have custody of one of the two minor children. During that time, Dad pays Mom one quarter of the original child support order, believing that because Mom only had to support one child, and one child lived with him, he was following the law’s requirements. Mom accepted the child support payments, and told the Office of Child Support that Dad was up to date in his payments. Neither party filed for a modification. Eight years after the final decree, Mom claims arrears based on the original child support order, and claims Dad owes her an additional $27,000.00. The verdict? The law is on Mom’s side. Vermont Statutes provide that a child support order remains in place until a party files a motion to modify, and the modification is retroactive only to the date the motion was filed. With rare exceptions, the courts have interpreted this to mean that no matter who is actually taking care of the children, the child support order must be upheld. So, if there are any household changes such that child support should be changed, it is imperative that you file a motion to modify. While the courts encourage informal agreements in most cases, they will not recognize informal agreements regarding child support.
2. When the custodial parent moves away:
At your final divorce, you agree that your spouse may have custody of the children. A few years later, your spouse decides to move to California. Can you do anything about that? The answer is no. A person has a constitutional right to travel; thus you cannot prevent your ex-spouse from moving. Obtaining custody of your children is a possibility, but you have to show that the move is a substantial, unanticipated change of circumstances; and it is in the best interest of your children that custody be changed. So you may have an uphill battle. You will be able to change parent-child contact, however, because your children have moved; and the court will hear you on an emergency basis if your spouse is moving without notifying you in time. How can you avoid this problem? It will not be easy if you do not have custody, but if you involve yourself with your children as much as possible, the court may find that the children’s relationship with you and your family is so important, it may change custody rather than break that tie. *But remember: If you do not file a motion to modify before your ex-spouse and the children leave, under the Uniform Child Custody Jurisdiction Act, you may have to file any motions in the new state where your ex-spouse and the children reside. Under the Act, custody and parent-child contact must, with few exceptions, be heard in the home state of the children, which will be their new place of residence, generally after six months.
3. Parent child contact problems:
If your spouse is not allowing you to have the parent-child contact ordered by the court, you may file a motion to enforce the parent-child contact, and the court must hold a hearing within 30 days. You are also entitled to have the parent child contact you missed restored.
4. Changes in spousal support: (Also called maintenance or alimony):
When a court orders spousal support, the order can, like child support, be modified. For example, if a spouse who is receiving spousal support becomes disabled and can no longer work, the other spouse may be required to pay more support. However, if no support is awarded at the final hearing, then an ex-spouse cannot request support even if he or she becomes disabled after the divorce. To protect against such a contingency, a party sometimes requests nominal support so that it can be modified if the party becomes unable to work.
5. Changes in financial and marital status of the parties after divorce:
It is my experience that often during the divorce proceedings, one party may decide not to request as many assets, or as much child or spousal support as he or she is entitled to because the party does not want any confrontation, or wants to have the divorce finalized as soon as possible. That party almost always regrets that decision later—when his or her ex-spouse and the ex-spouse’s new wife or husband are reaping the financial benefits of the divorce. How to avoid this problem: Insist on receiving what you are entitled to under the law when you are negotiating a property settlement or support, or asking the judge to decide, no matter how uncomfortable that is. You are not “taking him/her to the cleaners” as your spouse may accuse you of doing, if you are only asking for what the law provides.
Divorce is stressful, but it is important to plan as much as possible for any post-divorce problems, and to act quickly when changes occur after the divorce is final.
Vermont law requires that property be divided “equitably” between the spouses when the couple is divorcing. That means the court will take into account all factors and circumstances. “Equitably” does not mean “equally”, although in many cases, dividing marital property equally is the fairest for both parties. Family court reviews twelve factors that are outlined in the Vermont divorce statutes in determining what is an equitable division. Here are those factors:
Factor 1: “Length of marriage”:
The court considers how long a couple has been married to be an important factor in determining how to divide marital property. The longer the marriage, the more likely the court will divide the marital property equally or 50/50. Family court will also consider the number of years a couple has been together, even though they have not been married the entire time they were together.
Factor 2: “Age and health of the parties”:
The age and the mental and physical health of each spouse is always an important concern of the court. If a party is disabled to the extent he or she cannot work, for example, that party will likely be awarded more of the marital property. Each spouse can testify regarding this factor, but if there is an issue of ill health, a medical expert may be needed to testify regarding the spouse’s illness or disability.
Factor 3: “Occupation, source and amount of income of each of the parties”:
All the income of each spouse, including interest and dividend income, rental income, wages and salaries, are considered by the court under this factor. If either spouse is self-employed, his or her actual income may be difficult to determine, so an accountant or other expert may be needed to testify as to the spouse’s income.
Factor 4: “Vocational Skills and employability”:
This factor involves the work skills and careers of each spouse. Some of the evidence relevant to this factor is as follows:
Factor 5: “The contribution by one spouse to the education, training, or increased earning power of the other”:
This factor is usually taken into account when a spouse works to support the household while the other spouse goes to school, or when a spouse entertains for the other spouses’ business clients, or when one spouse does the bookkeeping or other chores for the other spouse’s business.
Factor 6: “The value of all property interest, liabilities, and needs of each party”:
The court will consider all assets of the marriage under this factor. Any property either spouse owns, even if he or she obtained it before the marriage or after the separation, is marital property. Property also includes intangible items such as bank accounts, IRA’s, pensions, money owed you or your spouse, stocks and bonds, face value of life insurance, the value of the business you or your spouse owns. Value of property is the fair market value–or what you could sell the property for on the open market. If you have a long marriage and have accumulated a good deal of household goods and tools, you may want to have them appraised. You may also want to have a professional appraise your real estate or any business you or your spouse owns. Any liens or mortgages on your marital property are also relevant in determining its value.
Factor 7: “Whether the property settlement is in lieu of or in addition to maintenance”:
This means if you are entitled to maintenance, (otherwise known as alimony), the amount of maintenance you receive may be dependent on how much of the marital property you receive.
Factor 8: “The opportunity of each for future acquisition of capital assets and income”:
This means if one spouse is likely to receive an inheritance, or if there is a major contract which his business has negotiated, or if his or her career prospects are bright.
Factor 9: “The desirability of awarding the family home or the right to live there for reasonable periods to the spouse having custody of the children”:
This means the court will usually allow the custodial parent to live in the marital home, and make an order providing for the other spouse to receive his/her equity in the home over a period of time, depending on the finances of the parties.
Factor 10: ”The party through whom the property was acquired”:
This factor has less importance the longer you are married. Some examples of this factor: One spouse bought a home before the marriage, or a spouse receives a substantial inheritance just before the break-up of the marriage.
Factor 11: “The contribution of each spouse in the acquisition, preservation, and depreciation or appreciation in value of the respective estates, including the nonmonetary contribution of a spouse as a homemaker” Examples of this factor are as follows:
Factor 12: “The respective merits of the parties”:
This factor answers the question: “Who is at fault for the break-up of the marriage?” Abuse, alcoholism, adultery are examples of fault.
Injured? Fundamentals to Fair Compensation
If you are injured because of someone’s fault, you may have a claim against the wrongdoer. Obtaining fair compensation requires thorough preparation. Here are four essentials your lawyer should follow in obtaining the compensation you deserve:
A thorough investigation proving liability of the defendant. It is vital to any personal injury claim that your lawyer prove the other party committed some wrongdoing: either they were negligent, they violated a law or statute, or they intentionally injured you. Remember, you have the burden of proof. Therefore investigation of the incident is critical. Here is what your lawyer should do:
Proving your losses:
In addition to proving that the other party was liable for your injuries, you must also prove the extent of your losses. Therefore your lawyer should gather and organize all the information about your injuries and the damages to you and your family as a result of those injuries. Here is how it should be done:
You are entitled to recovery for all the losses you sustained as a result of the other party’s wrongdoing. Here are some of the damages for which you are entitled to be reimbursed:
Your lawyer should obtain and organize the following information on losses:
All health care, vocational and economic records and information concerning your losses. These include all medical records (and may included previous medical records if you had a pre-existing condition) employment records which show lost income and benefits, medical, chiropractic, pharmaceutical, physical therapy invoices (whether you or your insurance paid) receipts for personal property losses, payments made to any assistants you employed to help with daily chores.
Demonstrating your character:
A good settlement depends on you. Insurance adjustors measure the value of a case by what they think a jury would do if you went to trial. Adjusters know that juries are not sympathetic to plaintiffs who appear to be dishonest, greedy, exaggerating their injuries or have an agenda. Juries have seen headlines about “runaway verdicts” and insurance company ads about greedy and dishonest claimants. They will therefore be evaluating your character. If you are honest, forthright and have a positive outlook, you will be more successful in obtaining the settlement you deserve.
Demonstrating your resolve:
98% of all personal injury cases filed in Vermont courts settle. However, you will not obtain fair compensation if you or your attorney are not prepared to go to trial. Lawsuits are often lengthy and emotional. If you cooperate with your attorney in preparing your case, keep your perspective and sense of humor, you will find that the prospect of a trial is not so daunting, and, ironically, you will be more likely to obtain fair compensation without going to trial.
One last word:
Personal injury claims can be challenging. You will likely need the assistance of a lawyer. If you are thinking about settling a personal injury claim on your own, you should first seek the advice of an attorney. Our office, and many other attorneys, provide a free initial consultation for personal injury claims, so call us or an attorney of your choice to evaluate your claim.
If you have been injured as a result of another person’s wrongful conduct, you may be entitled to compensation for your losses. Most claims settle before going to trial. So you should know the pitfalls to avoid when settling your personal injury claim
Settling too Soon:
If you have been injured in an accident, you may soon hear from the insurance adjuster for the other party. The adjuster may suggest you settle right away. There is a good reason for settling early from the insurance company’s point of view. If you accept a settlement, the insurance company will have you sign a release that does not allow you to file any further claims even if you have more health problems as a result of the accident. If you are still receiving treatment for your injuries, or if you still unable to engage in all the activities you were able to do before the accident, you should definitely not settle yet. You should not settle until you have reached a medical end point and know the extent of your present and future losses.
Settling without enough information:
It is the cardinal rule in negotiations: The person who has the most information is the most successful negotiator. When settling a case, your lawyer should have the following information:
Exaggerating your injuries:
This is a big mistake. It has been my experience in 20 years of practice that truthfulness is always your best ally. Insurance companies and defense lawyers have resources which will find out about that previous injury you did not tell your lawyer about, and juries, in my experience, are excellent judges of character. They are especially sensitive to people who exaggerate injuries. The lawyer on the other side knows this, and will take you to trial rather than settling the case if he believes you are exaggerating or untruthful about your injuries.
Focusing on your lawsuit:
You should be assisting in the preparation of your lawsuit, but your first priorities should be taking care of yourself, focusing on getting better, getting back into normal activities and work as much as you can. It is a big mistake to think that by not getting better, you will receive a larger settlement. The opposite is often true: juries like people who struggle to overcome injury and disability, and they are less sympathetic to people who they think might not be trying as hard as they can to overcome their disabilities. Defense attorneys understand this, and will value your case lower than it deserves during settlement negotiations.
Investing too personally in your case:
Your case is important to you. Only you can know how much you have suffered as a result of your injury. But it is also important for you to take a step back and look at your case as impartially as you can. Your lawyer should help you look at your case objectively. The rule of thumb you and your lawyer should always use in analyzing your case is to make an educated guess as to how a jury will decide the case if your case went to trial. This is how the defense determines a settlement value, and it should be the standard by which you and your lawyer should value your case
Unwillingness to go to trial:
As I have said before, most cases settle. But your attorney should have the experience and confidence to take any case to trial. If the other side thinks that your or your attorney is hesitant to go to trial, they will likely not offer you the full compensation to which you are entitled. On the other hand, an attorney who is willing and prepared to go to trial will obtain a better settlement for you.
Where does my property go if I do not have a will?
If you do not have a will, the state will distribute your property by what is called the laws of intestacy.
Each state’s intestacy laws are different.
For example, In New Hampshire, the first $250,000 of your estate, whether real or personal property, would go to your spouse. After $250,000, your estate is divided between your spouse and your children.
In Vermont, only one third of your estate will go to your spouse if you have two or more children; and two thirds of your estate will be divided up among your children.
If you are not married and have no children, in both New Hampshire and Vermont, your estate will go to your parents.
In neither state will your assets go to any unmarried partner who is living with you.
The intestacy laws will distribute your property the way the State believes it should be distributed, not the way you want it distributed.
Do I need a will to take care of my minor children?
Yes. If you die and have minor children, the other parent will automatically be awarded custody of your children, even if you are no longer married to him or her and custody was awarded to you. However, a will with a trust provision will ensure that the person you designate will be in charge of the property and income that your children receive at your death. In addition, if your children have no other fit parent surviving, the guardian for your children whom you designate in your will, if he or she is fit, will be appointed by the court as guardian.
Do I need a will to make sure the state does not take my assets?
Generally, no. The only time the state would take your assets is if you have no relatives. The intestacy laws in Vermont provide that your relatives as distant as third cousins will inherit your assets; and in New Hampshire, relatives as distant as first cousins will inherit. Therefore, unless you have no relatives, there is no danger that the state will take your property if you do not have a will.
Can a will protect my estate from taxes?
Yes and no. A simple will does not protect your estate from federal taxes. You will need a more complicated estate plan, including a will, to minimize your tax burden. As of 2009, there is no federal estate tax on any estates valued at less than $3,500,000, so most people do not need to be concerned about tax planning. However, the estate tax laws may be changed dramatically by Congress in the near future; therefore it is important to talk to your attorney about those changes.
Are there other benefits from executing a will?
Yes. You can designate an administrator in your will, and the court will appoint that person. You can also provide the administrator with more powers than allowed under the probate statutes.
In addition, you can set up a trust in the will which will control how your property is managed after your death.
Finally, you can make it easier for your heirs to divide up your household and personal effects. This is often the least valuable property in your estate, but is often the property that your heirs will more likely argue over because your personal effects have sentimental value. Giving your administrator power to make a final determination as to how to divide such property can save everyone time and emotional heartache.
Are there any disadvantages to making a will?
Yes. Once you make a will, its provisions will govern how your property will be divided after your death, no matter how your circumstances change. There may be deaths or divorces in your family; you may have a child who has special needs, your assets my have grown so that tax planning is necessary. Finally, the laws may change so that your will does not protect your assets as you planned when you executed the will. A good example is the tax law, which is slated to change dramatically in the next few years. It is best, then, to review your will every three years, and every time there is a major change in your family circumstances or assets. Your lawyer should be reminding you to update your will every few years, or whenever there is a major change in the law.
Where should I keep my will?
You should keep it where your heirs can find it immediately after your death. For example, a safe deposit box or a locked safe is not a good place for a will if your heirs do not have access to the box or know where to find the key to the safe. So it is best to plan to put your will in a safe place that will be accessible to your heirs after your death. Your attorney may offer to hold your will in his or her office. In that way, the attorney can notify your heirs at your death as to the location of the will.
Do I need an attorney to help me with my will?
Generally, yes. While there are good online programs for drafting wills, a lawyer will review in depth your assets, your wishes, and talk to you about any potential pitfalls. A will is drafted to take into account, as much as practicable, what may happen in the future, and a review by a lawyer of your circumstances will can better help you predict and take into account any future contingencies when drafting your will.
In addition, a lawyer will be able to let you know if you need more complicated estate planning for either tax purposes or Medicaid planning. Finally, most lawyers will safeguard your will, and remind you of any legal issues that may come up in the future that will affect your will.