Adjuster Law: But Your Guy Didn't Die

I have a case that came in not too long ago. Single car wreck. 11:30 p.m., the car’s right tire goes off the edge of the road and the driver over corrects, swerving back and forth trying to get control of the car. The car eventually hits a concrete culvert and flips 3–4 times, finally coming to a rest upside down in a cornfield.

My client is the passenger. He was buckled in and looking for the driver. He came to and was able to drag himself out of the car. Frantically looking for the driver, he finally found him 30–40 feet away from the car in a twisted mass. Dead.

The driver was a friend of his. Someone quite a bit younger, that he had been living with for three months, working with and mentoring in his trade. Dead.

My guy had the initial ER bills, four weeks off work and minimal follow up to that point, because he couldn’t afford the doctor’s bills. I called the insurance company. They had the state minimum policy limits of $25,000 with an additional $25,000 for UIM.

I figured that this was more than enough to get to the $50,000 and called them to check on their feelings. “Oh no…..that’s not nearly enough.” Not enough to get to the $50,000? “No……Not enough to get to the $25,000.”

But this is a very serious fatality case. It was his roommate, friend and co-worker. “Your guy didn’t die. We consider this a soft tissue case and nothing more”.

Wow. It’s breathtaking.

The insurance company is of course Allstate.

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Adjuster Law: Not Enough Damage to the Car

I sent a demand package to an insurance company on a car wreck case with about $26,000 in bills for medical treatment and two herniated disks. The adjuster wanted us to get information on prior medical treatment because of the severity of the claim, they felt there had to be some pre-existing condition. We complied because that was information that we would need to gather if there was a lawsuit anyways. When that didn’t turn up anything, the denied any payment.

The reason? Not enough damage to the car and they didn’t believe that my client could have herniated two disks from that amount of collision.

When I talked to my client his response “Well Dave, there wasn’t too much damage to my car. I was driving a Nissan Titan. The guy who hit me, his car was totalled. It was a crumpled mess that had to be towed away from the scene”.

Of course, the car that was totalled belonged to the adjuster’s insured, so she was well aware of that, but any reason to deny a case.

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Workers Comp: Loss of Earning Capacity

Frequently when someone gets hurt on the job, they get well enough to work, but not in the same job and can’t earn as much money. South Carolina’s code to deal with that is 42–9–20, which reads:

§ 42-9-20. Amount of compensation for partial disability.

   Except as otherwise provided in 42-9-30, when the incapacity for work resulting from the injury is partial, the employer shall pay, or cause to be paid, as provided in this chapter, to the injured employee during such disability a weekly compensation equal to sixty-six and two-thirds percent of the difference between his average weekly wages before the injury and the average weekly wages which he is able to earn thereafter, but not more than the average weekly wage in this State for the preceding fiscal year. In no case shall the period covered by such compensation be greater than three hundred forty weeks from the date of injury. In case the partial disability begins after a period of total disability, the latter period shall not be deducted from a maximum period allowed in this section for partial disability.

In short, you get 2/3 of the average weekly difference of what the client was making and what they can make now, multiplied by 340 weeks. Let’s see how that works. For every dollar discrepancy, the injured worker would get $.667. Over a 40 hour work week, that comes out to $26.68 difference per week. Let’s see how it runs out.

$1 per hour – Loss of Earning Capacity in 40 hour Work Week

$9,071.29 = $.667 2/3 of difference x 40 = $26.68 x 340

So we have the following, assuming a 40 hour workweek:

  • $1 per hour = $9.071.29
  • $2 per hour = $18,142.40
  • $3 per hour – $27,213.60
  • $4 per hour – $36,284.80
  • $5 per hour – $45,356.00
  • $6 per hour – $54,427.20
  • $7 per hour – $63,498.40
  • $8 per hour – $72,569.60

So it can add up pretty quick. So you need a vocational report to establish the loss of earning capacity and also according to Singleton v. Young Lumber Co. and Brown v. Owen Steel Co., you need to have more than one body part to bump out of the scheduled members of 42–9–30.

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How to Ace a Job Interview with Me

I’m willing to give away a few secrets. Here is how to ace a job interview with me:

  • Read this Blog Post – One of the first questions I ask is “What do you know about me?” It amazes me the number of people of people that don’t even take the time and effort to type my name in Google and see what pops up. I have a reasonable internet presence and to not even look at my website or weblog, before coming to the interview is slack. I don’t expect someone to know everything about me, but to not even look at the website and the areas of practice shows a profound lack of interest, that I find unattractive in a job candidate.
  • Read the Practice Management Section of the Blog – I’ve been writing for 2 1/2 years and have very specific ideas about how I want a law practice to run. My ideas are well thought out, but run counter to a lot of lawyers out there. But you can really get an idea for what I want by reading the practice management section of the blog.
  • Be a Real Person – I’m not a high falutin’ person. Just because I have a J.D. doesn’t make me snobby. While I’ll be nice and cordial, I don’t want a hoity-toity employee. Be nice and be yourself.
  • Be Used to Dealing with People – I have a Plaintiff’s practice and we deal with the public. We have a lot of workers comp cases and construction workers and other blue collar people. I find a lot of defense paralegals aren’t used to dealing with the public. Very few people really have the knowledge and skills to accurately judge how good of lawyers we are, but 100% know whether we’re nice to them.
  • Be Technically Adept – You don’t have to be a power user, but knowing how to do a Google search and find information on the internet is useful. Knowing the difference between a .pdf and a .jpg is helpful. Knowing how to get information on the internets is helpful.

In the scheme of things, the only make or break question is someone that doesn’t even take the time before the interview to type my name into a search engine to see what pops up. So giving this tip on my blog isn’t really that much of a tip-off anyways. And in case you’re wondering, if someone has just moved and doesn’t have their computer unpacked or cable service set up, I will cut them some slack for that.

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Calculating Witness Fees in South Carolina

In a recent discussion, John Nichols, reminded everyone where to find the current

Thanks for the Google help, John and pulling everything into one place.

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What Audience is Your Blog Addressing?

I get asked a lot about why I write towards other trial lawyers, rather than the general public. A few reasons, first I don’t think the general public thinks about negligence, tort law or safety issues until they have been hurt. I think when someone has been hurt, they get on the internet and google these issues to see what is out there. I am seeing more and more clients doing internet research on their injuries, the seriousness of them and the appropriate medical treatment.

So, I write about trial techniques, practice tips and the use of technology, both in the courtroom and in the office because that interests me. I also think a lot of cases are referrals from other attorneys. The referrals might be for geographic purposes (the other lawyer isn’t in Myrtle Beach or even South Carolina), or the case is outside their area of practice, or possibly they don’t have the resources to handle a substantial case. By writing the blog, they think of me and my practice, rather than other lawyers in the area. I think potential clients will also search for the blog and while they might not be interested in the topics I write, will be able to see that I’m a competent lawyer that cares about his clients.

I have a friend that wants to start a real estate blog. For her, I would recomend a more consumer oriented blog. While they’ll change over a period of time, it’s important to think out the categories and what the overall feel of the blog will be. For a real estate blog I would suggest starting off with the following:

  • Mortgage Rates
  • Housing Trends
  • Tips for Homebuyers
  • Tips for Homeowners
  • Real Estate Law

With these categories, you could help people that are looking to buy, help them know when to buy, know when to sell, give information concerning owning a house and then also give updates on the real estate law. I think dirt lawyers get their business from real estate agents, mortgage brokers and individual consumers, so you want to write a blog that will interest them.

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Article on Best Practices for Legal Blogging

Joshua Fructer, has written an excellent article on on the Best Practices for Legal Blogging. The article covers the basics of design, where to get content and how to write it, building links and how to build an audience.

I’m glad that Josh mentioned design. I feel that’s a critical part of a blog, that is often overlooked. Yes, I know that a lot of people read the blog using news aggregators or RSS readers and many of my readers never actually come to the site. BUT….

This blog is a reflection of my practice and myself. I wouldn’t show up in court in a pair of ratty old sneakers, my ‘painting jeans’ and a worn t-shirt. Why would I want to represent myself on the internet that way? It’s important for the quality of the website to reflect the quality of the work beingdone. Here’s what Josh has to say about design:


As any lawyer well versed in marketing will tell you, prospective clients often draw inferences about service quality from physical cues such as the appearance of a lawyer's office or the quality of his or her stationery. A lawyer's blog should be no different. A blog that employs a visually appealing design will project a professional image, whereas a poorly designed blog based on some stock template will send the opposite signal about the author's experience and expertise. Indeed, since a blog is nothing more than a specialized type of Web site, just as a lawyer should think carefully about the appearance and usability of his or her firm's Web site, the same care and thought should be invested in the design of a blog.

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How to Write a Better Weblog

In looking on how to write a better weblog, you don’t have to go any farther than Evan Schaeffer’s New Year’s Resolutions for Blawg Review #38 on his fabulous Legal Underground blog. A few of Evan’s suggestions:

Provide Both Information and Opinion
In mixing it up, weblog authors instinctively know they should provide relevant, quality information. But what about opinion? Some lawyer-webloggers seem afraid their opinions will offend readers or generate unwanted controversy. But if you can say it on an Op-Ed page, you can say it in a weblog. Besides, in the blogging business, controversy is good.

Link Freely to Other Weblogs
Many weblog authors criticize the type of post that does nothing but provide links to other sources. But if you have a sense of what your readers want, you are providing an editorial service by choosing and selecting posts you think will interest them. As Dave Winer wrote recently, "the fundamental law of the Internet seems to be the more you send them away the more they come back. It's why link-filled blogs do better than introverts."

The whole list is:

1. Mix It Up
2. Prove You Have a Personality
3. Be a Better Writer
4. Write for the Computer Screen
5. Use Photos
6. Don't Be Obscure
7. Build a Community
8. Experiment with New Weblogging Ideas
9. Don't Let Your Weblog Make You Crazy
10. Learn from Other Weblogs

But don’t take my word for it.  Check out the link yourself. Evan talks from the voice of experience. It’s good advice for anyone just starting out a blog.

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How to Set Up a Weblog

So you’re ready to start a blog, but you want to do it right. You want a professional blog and not just a personal one and you want it to represent your firm or company. Here’s my advice on that.

  • If you’re a lawyer, use LexBlog to set up your blog. They know what they’re doing and will take a host of technical considerations off your hands. If you don’t want to go with LexBlog, and you are not a techie, use another company that sets up blogs professionally so you don’t have to worry about it. I previously wrote why I went with LexBlog.  If you want to go it on your own, read on.
  • Pick a blog name and use a top level domain name. For example, This not only gives you an identity, but also gives you a home base. That way you are not wedded to Blogger, Typepad or Word Press... If you have a top level domain, you will be able to switch your blogging software without losing readership. It might not make a difference now, but it might make a big difference down the road.
  • After you get a domain name, use Typepad or Word Press. It's easy to set things up, and they have a lot more power than Blogger.
  • Categorize by Categories instead of dates. People care what is written. They don’t care when it was written. As time progresses, you want your blog to become a resource, not a running commentary.
  • Set up your blog to 'ping' the various tracking sites. By ‘pinging’ the sites, you let them know of new posts. You want your posts to come up in the search engines, so you have to let them know you are out there. Sites you will want to ping include Technorati, PubSub, FeedGator, IceRocket, Google.... To be honest, I don’t keep track of all of the sites that should be pinged. That’s why I use LexBlog, so I can lawyer and they can ping.
  • Use Blogjet for blogging software. You will be able to create posts by right clicking on other blog posts and turning them into a new post. Or right clicking on a web page and automatically turning it into a post. Blogjet works as a word processor, where you can highlight, bold, italicize, indent or automatically number among other things. It’s main drawback is that it’s British and the spell checker is not quite ready for American prime time, but I think it’s the best out there. Ecto is also good software that runs on both Windows and the Mac.
  • If you don't know how to do any of the things I talked about, get a good computer guy to help you out. Get someone good to help you. If you’re a tech hobbyist do it on your own. If you want to spend your time lawyering and spend time with your family, get someone good to help you out. I used to be a programmer and as techie as they come, but now I’d rather work on my trial skills.

Those are my initial thoughts, for a new blog user on starting a professional blog. Did I miss anything? If you would add anything, leave a comment to let others know what is important.

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Top 5 Things to Know

With a tip of the hat to Matt Homann and his wonderful Five by Five's. I'll be offering a list of Top 5's for Trial Lawyers. My plan is to get input from various experts telling us a bit about their field and attorneys with specialties telling us about their area of law. We'll also do some Top 5 on technology and practice management issues.

Our first Top 5 will be 'Top 5 Things to Know about life care planners' followed by 'Top 5 Things Your Paralegal Wants to Tell You' (which will be an interesting topic). I plan on doing a new Top 5 every 2 weeks.

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