Personal Injury Law Journal

Michael H. Foster

mfoster@stark-stark.com
856.874.4423

Michael H. Foster is a Shareholder and member of the Accident & Personal Injury Group. Mr. Foster handles all types of personal injury matters, but concentrates in representing seriously injured children, individuals with permanent spinal and orthopedic injuries and victims of commercial vehicle accidents. Mr. Foster has significant trial experience in State and Federal Court and has achieved numerous substantial jury verdicts throughout the state. He is a court appointed arbitrator and is regularly selected to serve as an arbitrator in uninsured motorist matters by other attorneys.

One of the hallmarks of professional conduct is effective communication with your client. My practice as an attorney involves representing people who have been injured and who have had their lives disrupted by the negligence of others. One of the things these clients need and expect is an advocate for their issues and ear for their concerns. As a result I and my staff communicate daily with our clients. We are constantly on the phone, meeting with clients in the office, or speaking with others to help coordinate issues with insurance companies and doctors.

Because communication is so important, the Rules of Professional Conduct have a specific section on this issue. RPC 1.4 entitled “Communication” states as follows:

1. A lawyer shall fully inform a prospective client of how, when, and where the client may communicate with the lawyer.
2. A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.
3. A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.
4. When a lawyer knows that a client expects assistance not permitted by the Rules of Professional Conduct or other law; the lawyer shall advise the client of the relevant limitations on the lawyers conduct.

I abide by the above principles every day in my practice. In fact, I believe it is so important to go above and beyond what the Rule requires. It is a must to be truthful and honest with clients at all times. You must discuss the good and the bad and always ensure your client understands everything. Sometimes the most difficult conversations are the most important. By following these standards of ethical conduct and effective communication the client and the attorney will both be served well.

Mike Foster is a Shareholder in Stark & Stark’s Marlton, New Jersey office, specializing in Accident & Personal Injury Law. For more information, please contact Mr. Foster.

Once a legal complaint in a personal injury case is filed and served in New Jersey the discovery phase of the case begins. Discovery is the word used to describe the exchange of information and evidence between the parties to a lawsuit. Pursuant to New Jersey Court Rule 4:24-1 the time for completion of discovery and other pretrial proceedings in personal injury cases such as motor vehicle accidents, slip, trip or fall accidents and the like is 300 days. The period of discovery in somewhat more complex cases like medical malpractice and products liability is 450 days. In most cases extensions of the discovery period is also allowed if good cause is presented to the court. Additionally there are circumstances where discovery is extended significantly if there are exceptional circumstances that require it. Therefore as a personal injury client once a lawsuit is filed you can expect in general the discovery period to take anywhere from 1 year to 2 years in duration, or more in complex cases.

As the client you should expect several things to happen during the period of discovery. During this time the attorneys for all the parties will exchange all the evidential documents that will be relied upon in the case. This includes things like medical records and reports, police reports and other investigation materials to name just a few. In addition you as the client will be involved in several key aspects of the discovery. You will be asked to answer written questions called interrogatories dealing with how the accident happened, what injuries you sustained and what damages have been caused such as lost wages or similar things. You also will likely be required to attend a deposition which is a procedure where the attorneys can ask all the people involved questions in person about the accident and its consequences. In almost all cases you will be required to sign authorizations allowing the attorneys to get records from your doctors, your job and anything else related to the claim. Another common part of discovery is your requirement to attend medical exams with doctors the opposing attorney chooses to evaluate your medical condition.

These are just a few of the many things that occur during the court mandated discovery period. The attorneys are even more involved in exchange of information and many discovery procedures that do not require the direct involvement of the client. As the client it is important to understand what is happening and why during this 1 to 2 year period of time. What happens during the discovery phase is one of the most influential and important factors in the successful resolution of your case.

If you have questions regarding the discovery process, feel free to contact me here in my firm's Marlton, New Jersey office to discuss this matter in more detail.

As discussed in an earlier blog, arbitration is one method that is commonly used by the court system to try and settle a case prior to a trial. Arbitration is a short hearing or meeting of sort between the parties to a case in front of a neutral person who will ultimately render a decision.  Testimony will be presented along with documents in support of and in defense of the claim. The neutral arbitrator ( usually a retired judge or a respected attorney who handles similar cases ) will review everything then make what they believe to be a fair decision to all parties based on the evidence presented.

This entire proceeding is normally concluded within a few hours if not less. In the courthouse setting it is nonbinding, meaning it can be rejected by the parties and then the case will proceed to a trial. But in some instances the parties to a case may benefit from what is called a binding arbitration. Binding means that the decision of the arbitrator is final and the parties cannot reject the decision. This arbitration serves as the final resolution of the case and no trial is therefore necessary. Binding arbitration must be agreed upon by all the parties involved. If this can be accomplished there are several benefits to the parties as a result of the binding arbitration.

The greatest potential benefit of a binding arbitration to all parties is certainty. A trial is never a guarantee; it is always an uncertain result. Trials for injury cases are decided by a jury of people who the parties know little about and who are given little guidance on how to reach a verdict. There is always risk associated with a jury trial. A binding arbitration on the other hand provides at least some certainty to the parties involved. This is provided in several ways. First, the parties usually agree on parameters prior to the arbitration so everyone knows the result must fall in between these set guidelines. For instance a common agreement is what is known as a high/low agreement. In this situation a minimum damages award is agreed upon in terms of dollars and a maximum award is also selected. Therefore no matter what the decision of the arbitrator there is certainty that it cannot go above or below the agreed upon figures. Second , the arbitrator is someone known to the parties and lawyers involved and someone who all the parties trust to make a fair and reasonable decision. Having some certainty of how the arbitrator will decide a case based on prior experience is a great benefit.

The other significant benefits of binding arbitration instead of trial are expense and time. A trial requires in most instances thousands of dollars in expense because all the doctors and other expert witnesses in the case must be paid for their time to appear at the trial. In addition there is great expense in preparing all the necessary exhibits and evidence that must be introduced at a trial. Arbitration reduces the expense to a minimum because usually the decision is based on medical records and other documents rather than requiring actual testimony of the experts. Also the time involved with a trial is several days and sometimes weeks as compared to several hours for most arbitrations.

Binding arbitration is not always the right choice, and sometimes is not agreeable to the parties involved, but in the right situation in can be a very beneficial process and a successful way to resolve a case. If you have questions regarding the arbirtation process, feel free to contact me here in my firm's Marlton, New Jersey office to discuss this matter in more detail.

As a society we are constantly in parking lots, stores, restaurants, and buildings of one kind or another. Unfortunately, some of these properties and establishments are not always safely maintained. Unknown dangers may lurk in the next aisle over, just around the corner, or as you walk through a parking lot. Sometimes, these dangerous conditions are caused by the negligent actions or inactions of the commercial property owners.

Whether they are big chains like Home Depot or Wal-Mart, major shopping centers or small mom and pop shops they all have a responsibility to maintain their property and ensure the safety of their customers who they want to enter and therefore invite onto their property. They can and should be held accountable for damages whether to property or injury to person caused by their negligence.

When slips or falls, falling merchandise or other incidents happen at one of these places it is imperative that you immediately report it to the store management and make sure a report is completed. Even if damage or an injury is not immediately apparent and even though you may initially be embarrassed, reporting it is very important. You never know what can happen thereafter and if you eventually need to pursue any claim or retain legal counsel it will be to your benefit that you immediately documented the occurrence.

The step of reporting and documenting the incident is of the utmost importance for several reasons. First, as an attorney, I have seen on too many occasions the responsible parties directly deny that anything ever happened. There response always is that there was no report made and no proof of the incident. This is a powerful and many times successful defense even in the most serious and valid of claims. Second, notifying them of the incident alerts them to the danger and allows them to take steps to immediately remedy the problem and prevent future harm. In addition to reporting the occurrences make sure that if you sign anything, the report is accurate and correctly documents your statement.

Finally, if there is any potential harm to you whatsoever you should immediately consult an attorney. The most important reason for this is to prevent evidence of the incident from being destroyed or misplaced whether intentionally or otherwise by the responsible party. Today many if not most major establishments are monitored by video. If an attorney is notified right away they can contact the establishment and notify them to preserve all relevant information, including but not limited to: records, videotapes, store and parking lot surveillance tapes and incident reports. In New Jersey, as well as many other states, if they disregard this request they can face legal sanctions and penalties. In New Jersey the relevant statute is N.J.S.A. 2C:28-6(1) and these requirements are also discussed in the Supreme Court case of Rosenblitt v. Zimmerman, 166 N.J. 391, 400-401 ( 2001).

Be safe, but if ever confronted with an unfortunate incident at a commercial establishment remember to report it immediately and consult an attorney so all relevant evidence is preserved.

As everyone is well aware New Jersey and Pennsylvania are neighboring states. As a result many citizens of each state travel across the border to the other state on a frequent basis. This is especially the case for those who live on the western side of New Jersey and the Eastern side of Pennsylvania. Most of this travel occurs in cars. Each of these states has a similar law concerning the right of an individual to make a claim or file a lawsuit when they are injured in a car accident as the result of another person’s negligence.

In New Jersey when you purchase auto insurance you must either choose an unlimited right to pursue a claim and file a lawsuit which is known as the No Limitation on Lawsuit option or a limited right to sue option which is called the Limitation on Lawsuit option. Obviously selecting the No Limitation option costs more money for enhanced benefits. For the lower cost the Limitation on lawsuit generally restricts a person from pursuing a claim unless their injuries are serious and permanent in nature.

In Pennsylvania when you purchase auto insurance you have a similar choice. The only major difference being the wording of the options. In Pennsylvania the unlimited right to sue is known as the Full Tort option and the limited right to sue is known as the Limited Tort option.

But the way that insurance and your right to sue selection is interpreted and treated when you cross the border into the neighboring state is completely different. When a New Jersey resident operates their car in Pennsylvania and is hurt in an accident they are afforded much greater protection and benefit then when a PA resident operates their car in New Jersey. The reason is that no matter what right to sue option a New Jersey resident has on their policy when they get in an accident in Pennsylvania, the laws of Pennsylvania  treat that individual as if they have an unlimited right to sue. This is a significant benefit to most New Jersey drivers who have paid less and carry the limited right to sue option on their policy. Even though they chose a more restrictive and cheaper policy this does not apply when the accident occurs in Pennsylvania.

Unfortunately when Pennsylvania residents drive in New Jersey their right to bring a claim is greatly restricted. This is the case even if as a Pennsylvania resident you paid the extra premium to have the added benefit of the Full Tort and an unlimited right to sue. The reason for this is that New Jersey law states that when a vehicle from another state is driven in N.J. and is insured by a company which sells insurance in N.J. that the policy is automatically transformed into one providing N.J. benefits. Included in this transformation is a N.J. law that burdens all out of state drivers whose insurance also does business in N.J. with the limited right to sue option regardless of what selection they made and paid for in their home state. So as any out of state driver including one from Pennsylvania you are significantly restricted in your right to sue if injured in an accident in N.J. even though you did everything you could to protect yourself when you purchased your insurance policy.

This may seem unfair yet is the current state of the law in these respective states. The moral is that not all states are created equal when it comes to the rights of those injured in car accidents.