Death of a Plaintiff

by gzickerman on April 11, 2012

I was recently asked what happens to a case when the plaintiff dies while the case is pending. The death of a plaintiff in a tort case ends the claim for pain and suffering but not the expense to the estate.

If a person dies while their case is pending for say injuries in a motor vehicle collision, the portion of the claim that exists for the pain and suffering is lost. There is no logical explanation for such a rule. The person may have suffered for years before dying of an unrelated issue.

The key here is to be sure the person dies from an unrelated injury. One must first determine there is no causal connection for which the claim could be amended to a wrongful death. If that is not the case, then all that pain and suffering is no longer an available claim.

However the cost to the person for medical care and for lost wages would still be available. Unfortunately, the amount is usually small in comparison to the pain and suffering and most people do not pursue that remedy.

Sometimes, with the right demand, in a clear liability case, the defense will tender the amount of the bills to end the case. Remember however, there are liens which may attach to those proceeds which is a topic for another BLOG.

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Responding to a Psycho Email

by aelsberry on November 15, 2011

One of the most difficult things about divorce, even divorces that are relatively amicable, is learning a new way to communicate with your former partner, especially when children are involved. While I am sure that some (saintly) people are able to continue to treat their ex-spouse in the same loving and compassionate manner that they did while they were married, most of the rest of us would occasionally like to take a two-by-four to the other person’s head.

Whether the breakdown in communication happens because of “divorce crazy” or real crazy, there will be days when a hostile, or even psycho, email will show up in your in-box. And the trick to dealing with these emails, as well as dealing with communicating in general is to change your response, rather than to try to change your ex-partner.

Email is a wonderful tool – but like all tools can be used for evil as well as good. We have probably all been the recipient of a ranting, obnoxious email at one time or another. We may even have sent one ourselves. Certainly when you receive an email like that your first response is likely to be “fight or flight.” You are emotionally hooked in and feel like you need to defend yourself. BUT DON’T. Take time, take a breath and analyze the situation.

Bill Eddy, a California therapist and attorney, has spent many years both dealing with folks with “high conflict personalities” and helping others to deal with them. He has developed a method for analyzing and responding to hostile email, that works both for emails and almost any other communication with a hostile person, whether a former spouse, family member or business associate. http://www.highconflictinstitute.com/Published-Articles/responding-to-hostile-email.html . He recommends that you consider three things before bashing out a response:

1. Do you need to respond? Sometimes angry emails are just intended to pull you into an argument – to give the angry person power over you. Stop the cycle, if you can, by simply ignoring the email or at least ignoring everything but the real issues. For example, you receive a three-page email ranting about what a louse you were as a husband and father. Ignore. However, buried in that rant is one sentence about how your child needs both parents to sign a permission slip for school. Address only this issue.

2. Don’t respond emotionally. Your ability to think rationally is impaired by your emotions. Take a break, put away the email and wait to respond until after your anger and hurt has subsided. If you need to, write an angry email back, but do not send it. Print it out, tear it up and delete it. Then go back and write a new email.

3. Figure out what your goals are before you write the new email. Focus on that goal and write an email that fits into Bill Eddy’s BIFF format – brief, informative, friendly and firm.
BRIEF – Focus on the real issue and your goal.
INFORMATIVE – Focus on just the facts, avoiding negative comments, sarcasm and threats.
FRIENDLY – Treat this like a business letter to customer or company that you have a disagreement with. You wouldn’t spew vitriol at a business contact. Well, now your former spouse is a business partner with you and you are in the business together of raising happy, healthy children. Treat that person like you would a co-worker that you don’t personally like but must get along with to get the job done.
FIRM – Tell the other person clearly what your position is. Don’t leave the door open to more discussion if you are not willing to continue to hash out an issue and receive more of the same anger.

Using the previous example, here’s a sample answer: “Dear Ex-Spouse, I understand that Johnny needs us both to sign the permission slip. I will stop by the school on November 16th to sign the form. I spoke to the teacher and they do not need us to sign the same form, so this will take care of the issue. Regards.”

Looks easy, sounds easy. But it is not, but it is important to learn to do both for your sanity and that of your kids.

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EFFECT OF DIVORCE ON PRE-EXISTING ESTATE PLANS;

September 22, 2011

EFFECT OF DIVORCE ON PRE-EXISTING WILLS & ESTATE PLANS Most today are aware that approximately 50% of all marriages end in a divorce, dissolution or annulment (referred to in this note collectively as “divorce”.  The marriages that don’t end in divorce ultimately end with the death of one spouse. A large percentage of divorced persons, [...]

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Certain Uncertainty

April 14, 2011

The federal estate and gift tax rules continue with an uncertain future; the same uncertainty that has been with us since 2001 when the Bush tax cuts were enacted. At that time (2001) “temporary legislation” was passed establishing federal estate and gift tax rates . . . and rules which were effective through 2010. All [...]

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Sometimes We All Need to Stop and Think

April 8, 2011

The Arizona Legislature sometimes overlooks the consequences of what it may feel is a “good” law. The legislators will often hear a story or complaint from a constituent and want to help remedy the problem with legislation.. The problem is that the story or complain is about one person or a couple of people, but [...]

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Protecting Yourself From the Other Guy

February 1, 2011

Why of course you have automobile insurance that covers you if you are in an accident. The state requires a very minimum policy so at least you have what is called a 15/30 minimum policy ($15,000 per person/$30,000 maximum per accident). And, if you are like most people, you have a lot more insurance if [...]

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Wait, I thought that was mine. . .

February 1, 2011

Did you know that a hospital or health care provider can file a lien against the proceeds of any settlement or judgment you may get against the person who ran the red light and hit you. Even though your insurance paid the bill, the medical provider may claim a balanced bill lien. That is, the [...]

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Can’t Afford to Get Married, Wait Until You See the Cost of Divorce!

November 4, 2010

Freakanomics — books, movies, radio commentaries, and a New York Times blog which attempt to explain the economic motivations and incentives for all the crazy things humans do. Recently, the Freakanomics blog in the Times asked the question, “What is going on with marriage?” in response to recent reports that the marriage rate was declining [...]

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The Van Loan Formula

October 25, 2010

Ever wonder how the heck we figure out who gets what when trying to divvy up a pension? Who was that Van Loan guy anyway? Our own David West represented Mrs. Van Loan, arguing that she had a community interest in Mr. Van Loan’s military retirement benefits, even though the benefits had not yet vested. [...]

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Fighting E-Mail Tourette’s

October 5, 2010

What is the deal about seemingly normal people going nuts when texting or e-mailing their former or soon to be former spouse? Why does it seem that when writing they’ll forget that they’re writing and that someone may later read what they wrote? And that someone might be a Judge trying to decide what to [...]

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