Friday, November 20, 2015

What is a Settlement in a Personal Injury Case?

Personal injury lawyers like to spit out legal terms. "We sent the defense a 998 offer to compromise." "I warned the Plaintiff's attorneys that I will have to file a MSJ." "Before the CMC, I need to run down to central to file an Oppo." I know. It can get confusing.

Some terms like "settlement" are widely recognized, but the mechanics of a settlement in a personal injury context is not well known. This blog post will go over a "settlement" in greater detail.

A settlement can occur prior to, during, or after a lawsuit is filed. Most motor vehicle accidents, for example, involve automobile insurance. When a person is injured as the result of another motorist, he or she will make a claim with the automobile insurance of the other motorist.

Once the insurance is involved, a claim could be "settled" before a lawsuit is filed. A civil lawsuit can be filed when there exists a "cause of action" against another individual, or entity. "Negligence" is the cause of action most utilized in automobile accidents. The other driver may have ran a red light, and thus been negligent. The negligence resulted in injuries to the plaintiff, who filed the lawsuit against the driver who ran the red light -- and the bad driver then becomes the defendant in the lawsuit.

But again, it might not be necessary to file a lawsuit. The negligent driver's insurance will contact the injured person to try to "settle" the claim. A number of factors go into the decision of when it is appropriate to settle a claim. Experienced attorneys can advise on when a settlement would be prudent.

As an illustration, let's say that it makes sense for the claimant to settle a claim. The other driver has no assets; he also has a low policy limit, $15,000 in bodily injury liability. So far, the claimant has over $8,000 in medical damages, and continues to experience excruciating pain. The insurance company, recognizing that the claim likely exceeds $15,000, offers to "settle" the claim for the policy limit of $15,000. Claimant accepts. What happens?

Well, the claimant must execute a release of all claims against the negligent driver, in exchange for a sum of money, which was in this hypothetical $15,000. A release prevents the claimant from filing a lawsuit against the negligent driver. No lawsuit was filed, but a "settlement" was reached.

After a lawsuit has been filed, "settlements" get a little more complicated. Automobile insurance will always provides liability coverage for a negligent driver. Insurance also pays for the cost of litigation, meaning that: if the negligent driver is sued, the insurer will pay an attorney to defend the negligent driver in the lawsuit.

Therefore, a settlement will involve a new party once a lawsuit has been filed: the defense attorney. The defense attorney represents the negligent driver, but answers to the insurance company. Once a defense attorney reaches an agreement with the plaintiff's attorney (and is authorized by the client), a few things must be done before settlement.    

The defense attorney, or plaintiff's attorney, must file a "Notice of Settlement" with the court. This ensures that future court dates are vacated. Then, a release is executed, which, as explained above, will be a payment in exchange for the plaintiff to forfeit his cause of action against the negligent driver. Once payment has been satisfied, the plaintiff will file a "Request for Dismissal with Prejudice." Once a dismissal has been filed, the case is closed forever.

Settlements will always involve consideration, something in exchange for something else. Predominantly it is a sum of money in exchange for the injured party to forego pursuing money from the negligent party. It can occur at different stages of a claim, and will require different steps, but it will always result in the conclusion of a case.

Before you, a friend, or loved one settles a claim, it is important to contact an attorney to seek advice. One should not be quick to rush to a decision. 

Saturday, November 7, 2015

Factual Innocence Motion & Sealing an Arrest Record

Los Angeles County Sheriff Deputies beat and framed Gabriel Carrillo while he was in custody in 2011. During a routine visit with an inmate, an oral argument took place between visitor Carrillo and the sheriff deputies. Things escalated when the deputies took Carrillo into custody and assaulted him. The deputies claimed that Carrillo had tried to fight them. When photographs showed injuries to Carrillo's hands -- indicating that he was beaten while handcuffed, battery charges against Carrillo were dropped.

Now, 4 years later, Mr. Carrillo was able to get a "factual innocence" motion granted. This goes far beyond an "expungement." Mr. Carrillo will now have his arrest record sealed and destroyed. A Los Angeles Superior Court has ruled that there was no reasonable cause to believe that he committed the offense for which he was arrested.

Individuals who have been convicted of a crime in Los Angeles County will routinely call attorneys about cleaning up their records. It makes sense. In a competitive job market, it is good to have a limited criminal background. Most, if not all, are unaware of the differences between expungements and what Mr. Carrillo had received.

To explain clearly, it is important to start from the beginning. If there is probable cause for an arrest, and a person is arrested, he or she will have an arrest record, meaning that a criminal background check will show that an arrest took place.

A criminal charge is usually then initiated. It is separate from an arrest. Once a criminal charge has been filed, a person's background will note the charge and the result of that charge. It could be a dismissal -- should someone be successful in a motion to suppress, for example, or it could be a conviction. No matter what, however, there will be information available during a background check.

An expungement, as explained in other blog posts, dismisses the conviction. It also gives the formerly convicted person certain rights. It prevents discrimination. An expungement does not get rid of an arrest or charge on a person's criminal history. It simply withdraws the guilty plea and dismisses the case.

A "factual innocence motion" does get rid of a person's criminal history. Pursuant to California Penal Code section 851.8, should a person win a Petition to Seal and Destroy an arrest record, the California Department of Justice will seal the arrest. It will not show up on a criminal background check. After three years, it gets destroyed.

The burden is extremely high for a Petition to Seal and Destroy. Factual innocence must be proven, which is a tough standard. A person must show that there was no "reasonable cause" to believe that a crime was committed. Again, it is difficult.

Nevertheless, it is a good option for individuals like Mr. Carrillo. If you, the reader, family member, or friend are unsure on how to proceed in cleaning up a criminal background, it is best to contact a criminal defense attorney. He or she will likely be able to answer questions that are specific to each person.