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Medicare makes conditional payments to health care providers on behalf of its beneficiaries who are injured or killed and later assert personal injury or wrongful death claims.  Federal law requires that the monies advanced by Medicare be paid back subject to a formula that allows for the reduction of the advanced, conditional payments for certain expenses incurred by the beneficiary in securing the funds.  Occasionally, further reductions are granted. Law firms have the obligation to use reasonable efforts to determine if Medicare has made conditional payments and if so, work with Medicare to determine the proper amount of its gross and net financial interest and then ensure those monies are withheld from the proceeds and paid to Medicare.

The federal government has recently collected money from three plaintiff’s law firms for the alleged failure to do so.  One firm was required to pay $28,000, another $250,000, and, most recently, another $90,000.  It is unclear from the attached documents whether the payments in each case were entirely from firm funds or whether the payments also included client monies.   It does seem clear, in the case involving the $28,000 payment, the monies came from the owner of the firm:

Under the terms of the settlement with the DOJ, the firm’s principal agreed to pay a lump sum of $28,000.00. In addition, the firm agreed to (1) designate a person responsible for paying Medicare secondary payer debts; (2) train the designated employee to ensure that the firm pays these debts on a timely basis; and (3) review any outstanding debts with the designated employee at least every six months to ensure compliance. In addition, the firm acknowledged that any failure to submit timely repayment of Medicare secondary payer debt may result in liability under the False Claims Act.


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Tennessee’s personal injury and wrongful death jury trials and judgment amounts continue at historic lows.

In the fiscal year ending June 30, 2016, only 396 personal injury and wrongful death cases went to trial.  Of those 396  trials, only 190 were jury trials – the rest (206) were non-jury trials. For the year earlier (2014-15) there were 367 trials, 183 of which were jury trials and the balance (187) were non-jury trials.

At first glance this shows that the number of jury trials actually increased in 2015-16 190 vs. 183), but it is important to note that the number of tort cases disposed of during 2015-16 actually went up  over 10% (10,951 vs. 9695) so one would have expected an even larger increase in the number of  jury trials.  Only 3.5% of a case dispositions were resolved by a jury or non-jury trial – the other 96.5% of cases were settled or dismissed.

Tennessee law requires that personal injury cases for minors be approved by the court.

Tenn. Code Ann. § 29-34-105 provides:

(a) Notwithstanding any other law or rule to the contrary, a judge or chancellor may sign an order approving any tort claim settlement involving a minor that is less than ten thousand dollars ($10,000) by relying on affidavits from the legal guardian. The court shall conduct a chambers hearing at which the minor and legal guardian are present to approve any tort claim settlement involving a minor that is ten thousand dollars ($10,000) or more.

In case you have been living under a rock and have not heard, there are at least 121 confirmed cases of the measles traced from an outbreak at Disneyland in California in December.  The outbreak is significant for a number of reasons:

1.     Last year, the U.S. had a record number of measles cases since the virus was officially declared eliminated in 2000.

2.     Health officials including the Centers for Disease Control and Prevention are linking the current outbreak to non-vaccinated individuals;

Each one of us has, from time to time, picked up a brief written by an opponent and felt a sharp pain in the chest – our opponent has landed what seems to be a mortal blow.

This article – "The Best Lawyers Demonstrate  the Best Ways to Attack Adverse Authority" –  explains what to next.  It is excellent.

A dispute between a Tennessee plaintiffs’ firm and a Maryland plaintiffs’ firm over responsibility for litigation expenses will be resolved in Tennessee, says the Tennessee Court of Appeals.

The Wolff Ardis firm in Memphis and the Law Offices of Jonathan Dailey in Washington, D.C. teamed up together to work on a auto glass product liability case in Maryland.  They had a written agreement on the division of case expenses; the agreement was governed by the law of Virginia.  There was a defense verdict in the case, and Wollf Ardis billed Dailey  for $48,63.45 it claimed it was owned under the agreement.  Wolff Ardis filed suit against Dailey in Memphis, and Dailey contested the jurisdiction of the Tennessee courts.

The Court of Appeals held that Dailey could be sued in Tennessee.  Applying the recent opinion of specific personal jurisdiction set forth in State v. NV Sumatra Tobacco Training Co., 403 S.W.3d 726 (Tenn. 2013), the court noted that a two-part test must be applied in determining whether Dailey could be sued in Tennessee:  (1) are minimum contacts present (a fact fathering exercise) and (2) if minimum contacts exist, is the exercise of jurisdiction unreasonable or unfair. 

About eight years ago I wrote a guest post for Legal Underground that addressed the importance of case selection by plaintiff’s lawyers.  The post got lots of discussion, and in fact I ended up doing a series of speeches about the topic at seminars sponsored by various state lawyer associations and at an AAJ national conference..

Eight more years in the trenches as a practicing lawyer have given rise to a few more thoughts on the subject, and therefore I have updated the post. Here is the 2013 version.

The key to making a decent living (and maintaining sanity) as a plaintiff’s lawyer is knowing when to turn a case down.  To be sure, you have to a plan in place to get inquiries on new cases.  And you have to have the ability to prepare and try the cases you accept.  But it is also essential that you need do know when to say "thanks, but no thanks" to a case offered to you from a potential client or another lawyer.

Forbes recently published a fascinating article about Steve Susman’s thoughts on saving money in litigation. 

The article reports that Susman has launched a website called "Trial by Agreement" that "provides a sort of 0pen-source repository of pre-trial agreements that lawyers can use to reduce the often needless expense of electronic discovery, depositions and tit-for-tat motions."

The "Trial by Agreement" website has form pretrial agreements and trial agreements that lawyers can use in their own cases.  Here is a list of the proposed pretrial agreements:

We all know that as lawyers have an obligation to cite known adverse precedent to the court.  
There are two reasons why this rule should be followed (other than the all-too-obvious point that the rule exists).  First, the failure to cite adverse precedent means you have lost the opportunity to either distinguish it or say why it should be reversed. 
Second, you will lose credibility with the court – something that will hurt you in all future cases before that same court.  Thus, you may win a single battle (if the both the judge and the opposing counsel miss the case), but  then risk losing a war that will be fought over the rest of your career.

Associate’s Mind is a fine blog that is well worth adding to your RSS feed list.  Today’s post, Becoming a Good Lawyer Requires Failure, is an exceptional piece.  Do not be mislead by the headline, which I suspect was selected to grab attention (and it does.  Readers will be happy to see that  the piece makes it very clear that failure should not come at the expense of clients.

Keith Lee, the blog’s author, reminds us that blogging, social media campaigns, etc. do not make one a good lawyer.  What does?  Here is an excerpt of his post:

Becoming a good lawyer requires failure. It requires screwing up a motion and having to re-draft the entire thing. 3 hours of research down the hole only discover a new case that destroys your argument – then writing off that time from your billing and not charging the client because it’s your fault. It’s mis-communication between lawyer/client/opposing counsel/third-party counsel/doctor/court reporter throwing everyone’s schedule out of whack.

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