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FAQ
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GENERAL LEGAL Q: How long do lawsuits last? A: Under the rules of California courts, most lawsuits must be resolved within one year from the date they are filed by the plaintiff. This means cases are set for trial within 12 months of the date the civil complaint is filed by the plaintiff. It is important to note that the vast majority of cases, typically 90% ? 95%, settle prior to trial. Q: How much does it cost to file a lawsuit? A: The costs associated with the filing of a lawsuit vary depending on the county in which the lawsuit is filed. Typically, the cost of filing a civil complaint are between $261.50 and $314.50. However, other costs may be incurred during the course of the lawsuit. These costs include the costs of obtaining and photocopying documents and records, the costs of depositions, and the costs of expert witnesses and trial exhibits. Q: What type of damages are recoverable in a personal injury lawsuit? A: The type of damages recoverable in a personal injury lawsuit depend primarily on the facts of the case. However, the type of damages which may be recovered can include the following:
In addition, certain consequential and incidental damages may be recoverable if plaintiffs can prove that these damages were caused by defendant's acts and/or omissions. Q: What are the various stages of a lawsuit? A: The first stage of a lawsuit is typically known as the "pleading stage." This involves the drafting of a civil complaint for filing with the court. The civil complaint contains the various legal claims called "causes of action" against the defendant (the party responsible for loss, damage or injury). The filing by the plaintiff of a civil complaint with the appropriate court initiates or begins the lawsuit. Thereafter, the defendants are personally served with the summons and civil complaint. After service of the summons and civil complaint, the defendants typically have 30 days to file what is called an "answer" to the complaint. Various motions addressing the allegations in the complaint can also be filed by a defendant during this 30 day period. The second stage of a lawsuit is the "discovery stage." Discovery is a method by which both sides to a lawsuit can obtain information concerning each other and their respective positions. In essence, it is a means to determine the facts of the case, i.e., what happened, who is responsible, and what damages, losses or personal injuries were sustained. Discovery can involve the use of interrogatories, document requests, depositions and requests for admissions. In essence, the parties exchange documents and answer written and oral questions under oath. This information is used to further evaluate the case and hopefully provide enough information for the parties to reach a mutually agreeable resolution by settlement. If the case does not settle, the information obtained is used at trial. The third stage of a lawsuit is typically "settlement." This usually occurs after some discovery has been accomplished. Once again, this discovery serves to obtain factual information upon which the case can be evaluated in detail. The vast majority of lawsuits resolve by settlement out of court. The question of when a case resolves by settlement is dependent upon the client, and the relief and type of damages being sought and demanded for the client. The fourth stage of a lawsuit is the "trial stage." Trials are typically set to occur within 12 months of the filing of the civil complaint. There can be delays in the obtaining of a courtroom which can extend this one year period of time up to a period of two years. At trial, plaintiff has the burden of proof. Various witnesses are called and the parties present facts to a judge or a jury. The judge or jury then decides based on the facts presented and the applicable law whether or not there has been a wrong committed. In other words, does the defendant have liability to plaintiff for something. If liability or wrongful conduct is found to have occurred, the judge or jury then determines if the plaintiff has been injured and/or damaged by such wrongful conduct. The last stage of a lawsuit is "appeal." This occurs if one side or the other does not like the outcome of a trial. Appeals can last between one to three years. Q: How are lawyers paid for their services? A: Lawyers can be paid for their services in a number of ways. Typically, lawyers are paid either a contingency fee basis or an hourly rate basis. A contingency fee arrangement is one by which the lawyer agrees in writing to take a percentage of the plaintiff's monetary recovery, if any, after either a settlement or a trial of a lawsuit. Contingency fees are typically 33% of the gross monetary recovery if it occurs before trial, and 40% of the gross monetary recovery if the matter is tried. Contingency fee agreements are extremely risky for lawyers because they do not recover any monetary compensation for the time they invested in the lawsuit if the client does not recover monetary compensation. However, contingency fees are a means by which individuals who cannot afford to pay hourly rates can retain a lawyer to represent them. Typically a contingency fee agreement is reserved for cases in which plaintiff has sustained serious personal injuries. An hourly fee agreement is one by which a lawyer receives compensation for his services on an hourly basis. Typically, if the client is a new client, the lawyer will require payment by the client of an up?front "retainer." This retainer is used as security for the lawyer to insure that time which is billed to a file is collectible. If the matter resolves by settlement prior to all of the funds in the retainer being used in representation of the client, the balance of the retainer amount is returned to the client. Q: What are statutes of limitations? A: Statutes of limitations are time periods which apply to various causes of action which plaintiffs allege in their civil complaint. For example, if you are a plaintiff who is a tenant in an apartment complex and are suing the landlord for damages as a result of water intrusion or other problems, the various causes of action which you may assert against the owners and/or managers are negligence, nuisance, breach of the implied warranty of habitability and breach of contract. Each of these causes of action has a different statute of limitations. In other words, a civil complaint containing each of these causes of action must be filed with the court within a certain time period after you sustain personal injury, damage or loss. Typically, a negligence cause of action seeking damages for personal injuries must be filed with the court within two years from the date of the injury. If a plaintiff fails to file a lawsuit within that period of time, a plaintiff will be forever barred from pursuing their claim for personal injuries. Typically, a breach of contract cause of action must be filed four years from the date of the breach of contract. Similarly, a nuisance cause of action typically must be filed within three years from the date the nuisance arose. Statutes of limitations are very important in that if you fail to file a civil complaint with the appropriate court initiating a lawsuit in a timely fashion, you will forever be barred from pursuing any claims for damages, personal injuries or losses. Q: What documents should I bring with me when I meet with a lawyer? A: The more information the lawyer has, the better his advice to you will be. You should bring any and all documents that might have a bearing on your case. Examples of such documents include copies of medical reports from doctors and hospitals which describe your injuries; copies of sales contracts and disclosure statements and photographs. Although there are no guarantees, the more you are able to give your lawyer, the easier it will be for him or her to evaluate your case. Q: How do I know if I have a personal injury case? A: You must have suffered an injury to your person or property as a result of someone else's fault. It is not always necessary to have a physical injury to file a personal injury lawsuit. Lawsuits may be based upon a variety of nonphysical losses or harms, including emotional distress. You also may have a valid claim if someone has attacked your reputation, invaded your privacy or negligently or intentionally inflicted emotional distress upon you. Q: What does it mean to settle a case? A: Settling a case means that you agree to accept money in return for dismissing your claims against the person who injured or damaged you. You will actually sign documents releasing the other party from any further liability. To help you decide whether to accept the settlement offer, your lawyer will be able to provide a realistic assessment of whether a lawsuit based on your claim will be successful, a range of possible verdict or settlement amounts and how long it will take to defend or prosecute your case. Settlement can take place at any point in a lawsuit, including before the civil complaint is even filed, after a case has been tried but before a jury reaches a verdict, or even after trial while it is on appeal. It is important to note that the client is the person who must make the final decision to accept or reject any settlement offers, but attorneys will give you advice. Sometimes attorneys recommend a settlement and sometimes they recommend that a client reject a settlement. However, the final decision regarding settlement always belongs to the client. Q: I am not happy with the lawyer who is handling my case, and want to replace him. Do I simply fire him and retain another lawyer? Do I still have to pay the lawyer who I want to fire? A: Yes, you have a right to replace your lawyer at any time. As a client you are entitled to be treated with courtesy and consideration at all times, to have your questions and concerns addressed in a prompt manner, and to have telephone calls returned promptly. If you are dissatisfied with the legal representation you are currently receiving you can withdraw from the attorney?client relationship at any time. Regarding legal fees, your lawyer may have a lien against you for the value of services rendered up to the time you dismiss your lawyer. If a legal matter is a personal injury case handled on a contingency fee basis, your lawyer may be entitled to a fee for services rendered; however, you are not required to pay this legal fee to the outgoing lawyer when he or she is discharged. Instead, at the conclusion of your case the outgoing and new lawyer will share the contingent legal fee. Either the outgoing lawyer and the new incoming lawyer will come to an agreement as to how the total fee will be divided or a judge will make that determination. However, it is important to note that the total legal fee is not increased as a result of changing your lawyer. Q: How long should I wait before contacting a lawyer? A: The sooner your lawyer can get started working for you the better. Remember that the adjuster you may be dealing with settled hundreds of cases in the past year alone. He is also highly trained at negotiations. It is often important to be very careful and cautious when talking with an insurance adjuster and you very well may need a lawyer to help you through the process. It is important to contact a lawyer as soon as possible about potential claim because you should get legal advice on your time limits (i.e., statute of limitations) for filing a lawsuit or claim. The investigation of claims can be lengthy. Remember that you should not accept advice about your claim from anyone other than a qualified lawyer. Q: What should I do if I am involved in an automobile, motorcycle or bicycle accident? A: (2) Do not leave the scene of the accident until you obtain the information referenced below. (3) Obtain the names of any parties involved, including the responsible parties and any witnesses. In addition, obtain these individuals' addresses and telephone numbers. (4) Obtain insurance information from the responsible parties and all parties involved in the incident. This information should include: (1) the name of the insurance company, (2) the insurance policy number, (3) the address of the insurance company, and the telephone number of the insurance company. (5) Do not discuss the accident or your injuries with anyone other than law enforcement, emergency personnel, your physician, or your lawyer. (6) Photograph the vehicles involved in the incident, the area where the incident occurred, and the physical condition of anybody involved in the incident if injuries were caused by the accident. (7) If you believe you are injured, see a physician. It is important to note that oftentimes individuals do not realize they have been injured in an automobile or other accident until the days following the incident when they awaken sore and unable to move. Accordingly, it is important to seek medical treatment immediately if you believe you have been injured. (8) Do not consent to a recorded statement or sign any document (other than requested by law enforcement) without reviewing it first with your lawyer. Q: I was injured in an accident that was partially my fault. Can I still recover money for my personal injuries? A: Yes. In California, a person may recover monetary damages for his/her personal injuries, even if the injured party was partially at fault. However, the recovery will be reduced by the percentage of fault attributable to the injured party. Q: I am receiving state or federal disability insurance payments, Workers' Compensation benefits, Welfare or public assistance benefits, and was injured in an accident. Can I file a lawsuit for my personal injuries? A: Yes, but the agency or insurance company providing the benefits may have a lien on your monetary recovery for the amount of the payments they have made to you or on your behalf. Your lawyer can handle the negotiations for the reduction of the amounts of these liens. Q: What is toxic mold? A: It is many experts' opinions that all mold is harmful to humans. Accordingly, all mold may be "toxic" to humans. Most discussions center around Stachybotrys or "black mold." However, it is important to note that Stachybotrys is not the only toxic or harmful mold. Other toxic and harmful molds which are associated with water damaged building materials inside of buildings include without limitation Aspergillus, Penicillium, Chaetomium, and Ulocladium. Q: What are the human health effects of toxic mold? A: According to many experts, the health effects of toxic mold are numerous and varied. Health effects reported by plaintiffs include without limitation the following symptoms: Repeated colds; fever; pneumonia; pneumonitis; sore throat; sinusitis; sinus infections; nasal congestion; nasal pain; nasal discharge; cough; wheezing; bronchitis; asthma; shortness of breath; difficulty breathing; chest pain; nausea; vomiting; fatigue; malaise; depression; abdominal pain; diarrhea; mucus membrane irritation; allergic alveolitis; allergies; hypersensitivity pneumonitis; bloody noses; dermatitis; skin rashes; eye infections; itchy, red or watery eyes; light sensitivity; blurred vision; hair loss; joint pains; muscle aches; liver disorders or disease; infections; lung damage; upper respiratory infections; urinary tract infections; conjunctivitis; flu?like symptoms; headaches; immune system dysfunction or suppression; irritability; vertigo; cognitive and neurological problems including confusion, inability to concentrate and loss of memory. In addition, individuals exposed to toxic mold may have lifelong health effects including without limitation, lifelong asthma; lifelong hypersensitivity to mold and other antigens in the environment; and a lifelong higher susceptibility to increased respiratory illness and disease. Q: How do I test for molds in my home, school, place of business or work? A: Mold testing can be divided into two primary categories: air testing and bulk testing. Air Samples: Air samples involves the sampling of air within a structure. There are two common methods of air testing. The first air sampling method is called the "viable test method." This viable method tests for the presence of viable or culturable (i.e., live) mold spores in the air. This is accomplished through the use of a pump which draws air through a device known as an impactor. The impactor contains 400 precisely drilled holes. Air is drawn through the 400 holes on the impactor and onto a petri dish containing a growth media. Air is drawn through the impactor and onto the petri dish for a certain period of time. Thereafter, the petri dish is removed and sent to a laboratory for analysis. The petri dish is cultured for a period of 7 to 10 days. It is then reviewed by a microbiologist. The colonies of mold which form on the petri dish are counted. A multiplier is then used to determine the number of "colony forming units of mold" per meter of air. A written report reflecting the results of the test and the levels of airborne viable or live mold is then prepared by the laboratory. The second air sampling method is commonly known as "spore trap testing." This involves testing for the presence of non?viable or dormant mold spores in the air. The spore trap machine is comprised of a small black box containing a laboratory slide with a sticky substance on the slide. Air is passed across the slide and the mold spores in the air attach or stick to the slide. The slide is then removed from the testing mechanism, sealed and sent to a laboratory. At the laboratory a microbiologist examines the slide under a microscope and counts the number of mold spores on the slide. A multiplier is applied to the number of mold spores found on the slide to obtain the number of mold spores "per cubic meter of air." A written report reflecting the results of the test is then prepared by the laboratory. The indoor air samples are compared to outdoor air samples. In this comparison, one looks for total mold spore concentrations indoors and outdoors and determines if there is amplification (i.e., more mold) of mold spores in the air inside the building when compared to the outside air sample. In addition, the analysis of air sampling involves comparing the various types or species of mold found inside and outside. Bulk Sampling: Bulk sampling is comprised of a number of different types of "bulk" tests. The first type of bulk test is "actual bulk sampling." Actual bulk sampling involves the removal of building materials with visible mold growth on them. For example, the removal of a piece of mold laden drywall. This bulk material is placed into a sealed container and sent to a laboratory for analysis. The second type of bulk sampling is known as "swab sampling." This involves the wiping of visible mold with a Q?Tip type swab, sealing the swab in a glass container and sending it to a laboratory for analysis. The third type of bulk sampling involves "tape lift samples". This process involves placing a piece of cellophane or Scotch tape on a surface containing visible mold, lifting the tape, placing it in a sealed envelope and sending it to a laboratory for analysis. The microbiologist at the laboratory examines the tape under a microscope and identifies the types of mold present, if any. The laboratory identifies the type of mold present and rates the concentration and level of mold found on a scale of 1 to 4+, 4+ being the highest. A written report is then prepared by the laboratory regarding the results. The final type of bulk sampling is known as "dust sampling." This testing method involves vacuuming certain areas of carpeting and/or furnishings. The materials ("dust") vacuumed from the carpet are placed in a petri dish containing a growth media. The petri dish is then sent to a laboratory for culturing and analysis. If mold is present in the vacuumed dust it will grow and form colonies in the petri dish. The measurements obtained are provided in a written report and listed in "colony forming units" of mold per gram of dust. It is important to note that there are no governmental or regulatory standards concerning the levels and/or types of mold which are appropriate or inappropriate in residential or commercial structures. Q: Can mold damage the structure of my home or other property? A: Yes. Mold can destroy the structure of real property causing structural property damage. Mold digests and degenerates building materials including drywall, wood and carpeting. Q: How can I clean mold from the building structures and materials upon which it grows? A: Mold can be cleaned/removed from structures, but the process can be complex. Because both dormant or dead mold spores are just as harmful as live or living mold spores, one should not merely apply bleach or other substances in an attempt to kill the mold. Instead, the mold spores need to be removed by HEPA vacuuming. In addition, cleaning mold and mold spores from surfaces in areas which are not properly "contained" can lead to mold spreading to other areas. Therefore, with areas of visible mold it is recommended that the client contact a qualified mold remediation company. Structural mold cleaning/remediation involves the removal of mold and mold laden building materials. Typically the process involves:
Q: Can molds damage or destroy the contents of or personal property within a building? A: Yes. Mold can destroy and/or damage the contents of a building, commonly known as personal property. Typically, "soft items" such as mattresses, couches and other upholstered items cannot be cleaned because mold spores can become trapped in the surfaces of these items. "Hard items" on the other hand, such as wood furniture, appliances and other non?porous goods are typically cleaned by HEPA vacuuming and washing. Q: Do I have any rights if the landlord or owner of property which I rent fails to repair or address problems with the property or complaints I have concerning the property? A: Yes. The owner and/or managers of a rental property have an obligation to maintain and repair that property. In addition, they often have a contractual obligation to timely and promptly respond to tenant complaints for repairs. The failure of a landlord or manager to properly maintain or repair a rental property may result in causes of action for negligence, breach of contract, and breach of the implied warranty of habitability, and nuisance. The type of damages recoverable from an owner or manager if they fail to repair and/or maintain rental property may include: (1) a refund of some or all of the rent paid, (2) the cost of repairing the premises, (3) the cost of repairing any damage caused by the defective condition or problem, including personal property damage and (4) attorneys' fees, if appropriate. Further, if the condition or problem with the rental property injured or harmed the tenant, the tenant may also be able to recover for personal injury damages. Q: Do I have any rights if the builder of my home fails to address defects and/or problems with the home discovered after I moved into the property? A: Yes. A builder of residential property is required to construct that property in a good and workmanlike manner. If there are problems or defects in the property, typically their repair costs are covered under the one year homeowner's warranty provided at the time of the purchase of the property. If the builder fails to honor this one year warranty, it can be liable under a breach of contract cause of action. In addition, if the home fails to meet the standard of care in the industry with respect to its construction, the builder can be liable under negligence and strict products liability causes of action. It is important to note that the expiration of the one year express warranty period does not prevent a buyer of a home from bringing a lawsuit against a builder after the first year of occupancy. In fact, an owner of property can file a lawsuit against a builder for up to 10 years after the home is completed for defects in its construction and/or problems with the home. The damages which may be recoverable against a builder of the property for defects and/or problems with its construction are typically either: (1) the cost of repair of the property or (2) the diminution or decrease in value of the property as a result of the defects, whichever amount is less. In addition, certain consequential and incidental damages may be recoverable, including without limitation attorneys' fees if the sales contract so provides. BANKRUPTCY
Q-How long does a bankruptcy last? A-The life of a typical Chapter 7 bankruptcy is anywhere from four to six months. A Chapter 13 bankruptcy will typically last from 3 to 5 ½ years.
Q-Can I keep my personal property? A-In the majority of bankruptcies we file we are able to protect all of our client’s personal property using the exemptions allowed by the applicable state law. There are rare occasions where an individual has assets that total over the available exemptions. However, our firm is skilled at handling the necessary assessment of your estate and the possible negotiations needed in these situations.
Q-Will I have to return the vehicle I am financing? A-No. You can keep any property you are currently financing as long as you make the payments. There are several options to consider when evaluating your secured loans. Your attorney will be able to discuss the available options and advise you which option is best for you.
Q-Can I discharge my student loans? A-Student loans are one of the few unsecured debts that are allowed special treatment in the bankruptcy code, as they are not dischargeable in a standard bankruptcy and must be paid back.
Q-Can I file bankruptcy without my spouse? A-Yes, you can file a bankruptcy without your spouse. However, you will be required to include the total amount of income he or she contributes to your household when calculating your income for the purpose of the bankruptcy.
Q-How will my bankruptcy affect my co-signer? A-There is no way to ensure that your co-signer will not be affected by your bankruptcy filing, as the creditor is able to report that the joint account is in bankruptcy. However, your co-signer will only become solely responsible for the debt if you choose to surrender the property back to the creditor. If you choose to keep the property and maintain the payment, your co-signer will retain the same liability they had prior to the filing of your bankruptcy.
Q-Will a bankruptcy stop my wage garnishment? A-A bankruptcy will immediately cease all wage garnishments for any debts other than child and/or spousal support. As long as the debt is discharged in your bankruptcy, the creditor will no longer be allowed to garnish your wages or collect this debt from you.
Q-What is the difference between a Chapter 7 and a Chapter 13 bankruptcy? A-Chapter 7 and Chapter 13 are the most common types of bankruptcies filed in the United States. The biggest difference between the two is that a client in a Chapter 13 bankruptcy is required to make payments to their creditors through an assigned trustee, while a client in a Chapter 7 bankruptcy will usually complete the bankruptcy process without paying anything to the trustee. Please see our section titled Chapter 7 vs. Chapter 13- Finding the Right Chapter for You for more specific information.
Q-What is “median income”? A-“Median income” is a legal term used in bankruptcy that refers to the average income a family of your size in your area receives before taxes. This figure is used to help judge your qualification for a Chapter 7 bankruptcy and is used as the baseline figure from which to calculate the required Chapter 13 payments and plan term. This information is complied from the federal government’s data and is usually adjusted twice a year.
Q-In a Chapter 13 bankruptcy, how will my payment be calculated? A-The payment is based on where your income falls in comparison to the applicable median income for your case, the qualified expenses you have, and the debts you are required to pay back in your bankruptcy. Our firm has years of experience at calculating plan payments for our Chapter 13 bankruptcy clients that are both manageable for their family’s lifestyle and in compliance with the bankruptcy code.
Q-If I file a Chapter 13 bankruptcy, how long will I be required to make payments to the Trustee? A-A client in a Chapter 13 bankruptcy is generally required to make payments to the Trustee for anywhere from 36 to 60 months. In rare and special circumstances, a client may be able to pay the Trustee for a length of time shorter than 36 months. Your attorney will be able to make this determination.
Q-Will I have to go to court? A-All Debtors are required to attend a Meeting of Creditors, commonly known as a “341 Meeting,” regardless of the chapter they are filing. The meeting is conducted by an assigned trustee who is employed by the Department of Justice. Your attorney will attend the meeting with you. A judge will not be present at the meeting. Most of our bankruptcies, even our Chapter 13s, are completed without you ever having to appear in front of a judge.
Q-Do I need to have an attorney? A-No. The forms you are required to file are available online and can be filed in person at the clerk’s office. However, bankruptcy law is intrinsic and complicated, especially when you are filing a Chapter 13 reorganization plan. The documentation alone can be difficult to understand and accurately complete. To ensure that your bankruptcy is completed with the least amount of stress to you and your family, it is highly recommended that you enlist the services of an experienced bankruptcy professional to guide you smoothly through the bankruptcy preparation and filing process.
Q-Can I pick which debts are discharged in my bankruptcy? A-No. You are required to list all outstanding debts you have at the time of the filing of your bankruptcy. If an account has a zero balance, you can exclude it from the bankruptcy. Additionally, you do have the ability to voluntarily repay any creditor you choose after the bankruptcy, but the creditor is not allowed to attempt to collect the debt in any way.
Q-What will happen to my retirement accounts if I file bankruptcy? A-The majority of retirement accounts are 100% exempt from seizure in a bankruptcy proceeding. Please note that the above answers to these Frequently Asked Questions should not be construed as legal advice. Laws vary greatly throughout the United States. All situations differ and you should always consult the advice of a lawyer before making decisions regarding injury claims or other legal matters referred to herein. These answers are intended to provide general information only. Further, viewing this information does not make you a client of Beyer, Pongratz & Rosen, and does not create an attorney-client relationship between you the viewer and Beyer, Pongratz & Rosen.
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Options>> Fill out a New Client Sheet for a Free Consultation >> Make an Appointment with your Attorney >> Definitions >> FAQ |
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3230 RAMOS CIRCLE, SACRAMENTO, CA 95827 PH:916.369.9750 FX:916.369.9760 417 F STREET, LINCOLN, CA 95648 PH: 916.645.9529 FX: 916.645.5550 |
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Copyright 2008, Beyer, Pongratz & Rosen, Inc., a Professional Law Corporation |
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