Category: contract

Let an attorney speak for you

August 18th, 2011 · · contract, disability, insurance, Medicare, personal injury, privacy rights, worker's compensation No comments - Tags: , , , , ,
Attorney Dan Smith

Dan E Smith - Worker's Compensation Attorney

I have a saying around the office regarding the likability of clients: “The clients I would most enjoy spending casual time with usually give the worse deposition testimony.”

This is generally because genuinely nice people want to be helpful and are under the misconception that the point of a deposition is to prove their case.  It’s not.  A deposition is a recorded personal statement about facts that will be argued in the event of a trial. It acts as an opportunity for the opposing legal team to gather information from the person giving the statement. Opposing counsel will then seek to use this information against defendants, witnesses, plaintiffs, or whoever is being deposed, in any way they can.

How many times have you watched a television cop show and asked yourself, “Did that guy really just say that?”  The Constitutional Fifth Amendment right against self-incrimination when questioned by police after being arrested has been around since the Supreme Court decision in 1966, Miranda v. Arizona. When arrested, you “have the right to remain silent,” and yet day after day people don’t use it. Some people may believe that they are invincible to prosecution, others may be ignorant of the workings of the legal system, and still others may falsely believe that in giving all the information they have they will receive some sort of leniency. In my experience with social security disability, worker’s compensation, and personal injury claims, I unfortunately witness this same tendency to over-reveal fairly regularly.

Whether it is ego or simply a polite eagerness to please, we as people think that if we talk enough, eventually we will convey our message to the party listening. We, for some reason, equate the quantity of words with the ability to convince others of the outcome we desire; but, this is not the case. Generally, the ability to convince someone is based on the structure and content of an argument, not the amount of words used. In legal matters specifically, it has more to do with how well a point of law is argued, not for how long.  How many times have you been persuaded from a position in which you felt confident by lengthy or informative arguments presented from the opposing side? For most of us, this is rare. Usually, when our positions are shaky on a topic we are able to be swayed one way or the other, however, a firm stance is less likely to be influenced. For an attorney, part of the job and one of the skills that we hone is this exact ability to sway those who are not firm in their stance and attempt to influence the perception of those who have already declared their position. This ability to skillfully argue a position is valuable and something which we study and practice on a daily basis.

In my personal experience, as well as situations I have heard about from other attorneys, there are times when great cases are destroyed because of a client’s well-meaning actions. In the heat of a moment, people have been known to send lengthy, wordy, and thorough documentation to the agency with which they have placed a claim (insurance, SSD, etc); detailing what the person believed was their entire case. While this person, who afterwards hires an attorney and becomes their client, may believe that honesty is the best policy and that being forthcoming to all involved is the right thing to do, the truth is that instead the client gave away something they should have kept. The information that they might reveal may not have been necessary to reveal or share, and in truth the client may have adversely affected their own case by revealing not only these details, but the nature of their personality, and their likeliness to react emotionally to various pressures.

While the client feels that their actions were justified, (“But Mr. Smith, it is all the truth!”) the attorney for the opposition will use every resource at their disposal to their advantage, including any direct correspondence to them, statements given to insurance agents or police, postings on social media such as Facebook or Twitter, and sometimes even the informal statements given to friends and relatives.

So please stand up, protest, write letters and argue your case, but do it to an attorney. Realize that the statements you want to make can and should be evaluated by an attorney on your behalf, to establish the validity and legalities of your claim. Once you’ve engaged counsel on your behalf you should make the most of your relationship with them to correspond with all others involved in your claim. Let the experience of legal representation work for you to fullest capacity, including knowledge of what information is required to be revealed to opposing counsel. Please, accept an attorney’s advice on how and when to “plead the Fifth,” and on how to appear and speak at a deposition, hearing, or in court.

NFL Contract Disputes Channel Consumer Concerns

March 8th, 2011 · · contract, current events, football, good faith, insurance No comments - Tags: , , , , ,
Dan Smith

Daniel E. Smith, Workers Compensation Attorney

Even if you don’t follow professional football, or any sport at all, you may have heard about the NFL’s recent legal troubles. The NFL’s owners and players have a bargaining agreement in place in order to help protect each other’s interests in the business end of this multibillion dollar industry. But recently, one party wasn’t respecting the other’s interests. I’ll admit that when the story first came out, I was quick to follow what the news media was saying about the disagreement. But then I looked at it from a legal perspective and found that the root issue is one I encounter often in the course of an injury claim.

The NFL’s most recent legal trouble stems from the owners renegotiating their contracts with major television broadcasters, such as DirecTV, CBS, Fox, and NBC. The owners wanted to renegotiate these contracts in order to ensure that the networks paid for the games even if they didn’t air. This was a very real possibility because the owners and the players union was not close to reaching a new collective bargaining agreement as the deadline got closer. If they reached the deadline without agreeing to new terms, then there would be a “lockout” and no games would be played and, therefore, no games would be broadcast. Without the new contracts, the owners wouldn’t get paid.

Because the collective bargaining agreement stems from the fiduciary relationship between the owners and the players, it didn’t seem fair that the owners renegotiated their contracts to protect their own salaries with no regard for those of the players. So, the players claimed that the owners had violated the standard of good faith and fair dealing that the contract and collective bargaining agreement implies. The players assumed that since they worked with the owners to negotiate that they would have the same agreement when it came to all aspects of the game.

Sports media skipped all of this legal detail and chose to focus on the fact that the court ordered the owners to pay the players union $6,000,000. An ordinary person hearing about this transaction might assume that the issue didn’t have to do with what was right, but what was lucrative. When we hear about the player’s salaries, the owner’s net value, and how much a team is worth, a person can easily assume that these arguments have to do with amassing the most money. At 200 billion dollars, the NFL is a very profitable industry.

The number of star players in the NFL isn’t that large when you compare it to the number of average players. Each team has 53 players and there are 32 teams, making the grand total of NFL players 1,696. Sure, some of those are household names and may be able to make money off of that fame for the rest of their lives, but the majority won’t. Instead, they’ll have 3 or 4 good seasons, but leave the league because they cannot endure the physical toll of football any longer. They may have sustained serious injuries that require lifelong treatment. A six or seven figure salary for three or four years isn’t very appealing if it’s meant to last over the course of a lifetime.

Contract law has a lot to do with laws that explicitly state that people or organizations should treat each other with respectful consideration. That’s why the players union took the owners to court over the broadcast contracts. They used legal tools, such as mediation, attorneys, and litigation, to protect their rights.

When it comes down to it, this process isn’t much different than an insurance company’s need to balance their business pursuits with the fact that their business rests on protecting consumers. They have a responsibility to provide benefits for customers who are covered under a policy, but they may resist paying claims in order to protect profits. They need to argue on behalf of both from time to time. The NFL owners also need to make strategic moves that keep the players on the field and playing for the American audience that funds the beloved industry.

The NFL’s collective bargaining agreement has brought the concept of good faith and fair dealing in contracts to the masses, but they may have to do some more research to find that out.