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Tuesday, January 27, 2015

What is the value of your personal injury claim?  It depends.  The value of your personal injury claim against the person who caused your injuries can include damages like medical bills, lost wages from missed work, or use of sick leave or comp-time as a result of the accident.  If you suffer from physical or psychological injuries into the future, the value of your personal injury claim can include money for future medical treatment and future pain and suffering.  The value of your personal injury claim might also include other losses like reimbursement for mileage to and from doctor appointments, child care, or other costs incurred as a result of being injured and not being able to do daily activities that you used to do before being injured.  These types of damages are called economic or special damages. 

Pain and suffering, loss of enjoyment of life, and inconvenience as a result of the accident is another type of damages.  These damages are called non-economic or general damages.

The value of your personal injury claim depends upon how badly you were injured and how being injured impacted your life.  Only you can really know the value of your claim.  But, unfortunately, you are not the one who gets to decide what the person at fault, or their insurance company, will pay you.

The insurance company will only pay what they think your claim is worth.  The value that the insurance company places on your claim is affected by every aspect of you injuries and loss.  If the insurance company does not understand your claim, the insurance company will not pay you what your claim is worth.  If the insurance company thinks a jury in Boise, Idaho won’t give you any money for your claim, then the insurance company is not going to pay you what your claim is worth.

Did you know that Idaho law also dictates what your claim is worth?  It is true.  Idaho’s legislature has limited the amount of non-economic damages that an injured party can get.  The cap is currently set at $324,478.18.  That’s right.  A person can be rendered completely disabled and suffer pain for the rest of their lives, and Idaho law only allows them $324,478.18 for their general damages. This is true even if a jury wants to award more.  A judge would be required by Idaho law to lower the amount that a jury awarded in non-economic damages in excess of $324,478.18.

Of course, that assumes that a jury can understand the magnitude of a person’s injuries.  Often, members of a jury have not been through the same or similar experience as an injured person.  As a result, juries often have a difficult time calculating a sum of money that is reasonable to compensate a person for their injuries.  A jury member’s perception of a dollar may also impact how they value a claim.  The value of a dollar to a jury member who makes minimum wage is very different than a jury member who make an executive’s salary.         

Other things can drastically impact the value of your claim is whether your insurance company or medical providers have subrogation interests or liens placed against a settlement of judgment.  While these interests can sometime be negotiated down, these types of claims impact the value of an injured person’s claim.    

With all these challenges to claim valuation, an injured party’s best bet to hire an experienced injury attorney.  An experience injury attorney will know how to minimize potentially negative aspects and challenges to your claim while maximizing your recovery.     

Posted by eswartz at 1/27/2015 8:08:00 PM
Friday, January 16, 2015

Undue influence often gets confused with duress.  While both concepts may result in making an agreement, Trust, or Will, unenforceable, the concepts are very different.

Duress is focused on conduct at the time of the execution of an agreement.  It is forceful wrongful conduct apparent from the immediate circumstances surrounding the execution of a document.  Undue influence is subtle, is not likely physical present at the time of the signing of a document, and usually cannot be identified without examining the totality of the circumstance leading up and following the execution of a document.   

Idaho Civil Jury Instruction on Duress reads as follows:

Duress consists of oppressive, coercive or wrongful acts or conduct on the part of one party towards another that was intended to overcome the other party’s free choice of decision to enter into the contract.  The party oppressed must be overwhelmed by such conduct, or must believe there is no means of relief or other alternative to submission.

To be voidable on the grounds of duress, an agreement must not only be obtained by means of pressure brought to bear, but the agreement itself must be unjust, unconscionable, or illegal; the defense of duress cannot be predicated upon demands which are lawful, or the threat to do that which the demanding party has a legal right to do.  Liebelt v. Liebelt, 118 Idaho 845, 848, 801 P.2d 52, 55 (Ct. App. 1990).  Generally, the demand by one party must be wrongful or unlawful, and the other party must have no means of immediate relief from the actual or threatened duress other than by compliance with the demand. Id.

In contrast, in order to show undue influence “it is not necessary to prove circumstances of either actual domination or coercion; that the only positive and affirmative proof required is of facts and circumstances from which undue influence may be reasonably inferred… .”  In re Lunders’ Estate, 74 Idaho 448, 454, 263 P.2d 1002, 1006 (1953) (citing In re Estate of RANDALL, 60 Idaho 419, 421, 93 P.2d 1, 1 (1939).  In Gmeiner v. Yacte, the Court described a large number of factors that must be considered when determining undue influence:

Among the factors taken into consideration in determining the existence of undue influence are the age and physical and mental condition of the one alleged to have been influenced, whether he had independent or disinterested advice in the transaction, the providence or improvidence of the gift or transaction, delay in making it known, consideration or lack or inadequacy thereof for any contract made, necessities and distress of the person alleged to have been influenced, his predisposition to make the transfer in question, the extent of the transfer in relation to his whole worth, failure to provide for his own family in the case of a transfer to a stranger, or failure to provide for all of his children in case of a transfer to one of them, active solicitations and persuasions by the other party, and the relationship of the parties.

Gmeiner v. Yacte, 100 Idaho 1, 7, 592 P.2d 57, 63 (1979) citing 25 Am.Jur.2d Duress and Undue Influence § 36 at 397 (1966).  A result is suspicious if it appears “unnatural, unjust or irrational.”  A property disposition which departs from the natural and expected is said to raise a “red flag of warning,” and to cause the court to scrutinize the entire transaction closely.  Gmeiner, 100 Idaho at 7, 592 P.2d at 63(internal citations omitted).

Posted by eswartz at 1/17/2015 12:23:00 AM
Friday, November 21, 2014

Thank you to our clients and our colleague attorneys for the many referrals you have made to Jones & Swartz PLLC in 2014.  Our clients’ pleasure without our services is of great pride to us at Jones & Swartz PLLC.  And, knowing that other attorneys refer to Jones & Swartz PLLC, confirms for us that our balance between professionalism and advocacy not only secures the best result for our clients but also builds respect among our peers.

Posted by eswartz at 11/21/2014 8:47:00 PM
 Tags: attorney referral 
Saturday, March 29, 2014

Proper exercise of law enforcement power is respectful, and appreciated.  Improper use of law enforcement power is terrifying.

Law enforcement officers in our country are vested with great power.  Used correctly, this power can keep our communities safe.  When used incorrectly, however, our civil liberties are lost.

Civil liberties are what allow us to be who we want to be.  Freely speak, freely choose our own religion or none at all, freely move state to state, among other rights.  These rights should be respected and the loss of these rights should be feared.

Exercising civil rights and raising civil rights violations should be applauded, not punished. Equally so, law enforcement who recognize, protect, and refuse to violate civil rights should be applauded.

Civil rights belong to each of us – including those who serve as law enforcement officers.  We have to work together to preserve our civil rights.  That includes law enforcement having the courage to admit when civil rights are violated and putting measures into place to ensure that civil rights are not violated again.  Protecting our civil rights also includes having the courage to speak out in support of civil rights and having the courage to raise civil rights violations so that, hopefully, the violations will not happen again.  For law enforcement and citizens alike, civil rights are worth fighting for – they give each one of us freedom of choice and the right to be free from persecution because of such choice.

Recently, Idaho gained national attention when its legislature voted to allow guns on college campuses.  Whether you own a gun or not, and regardless of whether you agree or disagree with guns on campus, the national attention that the guns on campus bill received has branded you, as an Idahoan, as carrying a gun.  Now, how would you like to be pulled over while traveling in another state just because you have an Idaho license plate on your car and the officer is convinced that you are carrying a firearm illegally through their state?  Is the civil right to travel state to state without being harassed because an officer associates your license plate with something illegal a right worth fighting for?  Darien Roseen thinks so.

Mr. Roseen is a seventy year old retiree.  He was traveling through Idaho following his daughter’s baby shower in Washington.  Upon crossing from Oregon to Idaho his Colorado license plate was spotted and he was immediately pursued by an Idaho State Trooper.  Mr. Roseen was stopped, detained, was deprived of his property, and was extensively searched because the Idaho trooper who stopped Mr. Roseen was certain that Mr. Roseen’s Colorado license plate meant he was in possession of marijuana.  He was not.  But, he was, and still is in possession of the courage to fight for civil rights and has filed a lawsuit to do that very thing.

I no more wish to be stopped by law enforcement outside of Idaho because an officer believes my Idaho license plate believes I am in possession of a firearm, than I wish Idaho police to stop interstate travelers based on a perceived profile associated with their license plate.  License plate profiling is not worth fighting for.  The civil rights that such profiling violates are, however, and Jones & Swartz PLLC is honored to be fighting for the same.

Posted by eswartz at 3/29/2014 9:38:00 PM
Sunday, March 9, 2014

All too often a disagreement quickly turns into an unnecessary lawsuit.  The root of the problem can sometimes be a hungry lawyer who is more interested in feeding his or her family than assisting their client with resolving a simple dispute.  Yes, that’s right.  Lawyers have to make a living too.  But, lawyers who encourage battles only to line their own pockets are the kind of lawyers you should avoid.    

If your lawyer is not cautioning you about the costs and uncertainty of letting a dispute blow up into a lawsuit, but is instead encouraging you to fan the flames of the fire, find a new lawyer.  If your lawyer seems to be doing everything possible to stall a settlement by insisting on unreasonable deadlines and complex documentation, find a lawyer who can get it done without giving you excuses about how complex it needs to be.   Chances are, it does not have to be that complex.  Chances are that if your lawyer is making it that way it is because he or she is running up your bill, helping feed his or her friends in the firm by having them draft unnecessary documents, and, perhaps, more interested in seeing settlement fail so that they can keep you in litigation and keep the churning out bills.      

Search for a lawyer who you can speak to.  Search for a lawyer who asks you whether you really want to scorch the earth in litigation versus offers to do it for you.  Search for a lawyer who is trying to keep you focused on what you do for a living, not keep you focused on what the lawyer does for a living.   

Posted by eswartz at 3/10/2014 12:45:00 AM
Sunday, March 2, 2014

You want what yours and you want it now.  We all do.  

When it comes to real property, you may be getting more, or less than you bargained for - depending on what sellers and buyers agreed upon.  In Idaho, it is important to have a property lines surveyed to ascertain the correct boundary lines before undertaking any project involving boundaries of real property.  Assuming to know where the boundaries lie could result in one party losing some property and another gaining some property.  In Idaho, if two adjacent landowners agree on the boundary line between their property, that may become the permanent boundary - even if it is not the actual property line.   Even if the landowners do not know where the actual property line is located, and guess, it may constitute a binding agreement for the actual property boundary. 

The mutually agreed boundary may become the permanent for all future purchasers.  A simple survey could easily ensure that the boundary line is correct.  

If you are buying property, hire a surveyor, first.  If you have a dispute about your property lines, hire an attorney, first, and a surveyor, maybe, next.     

 

 

Posted by eswartz at 3/3/2014 12:24:00 AM
Friday, February 21, 2014
Deciding whether or not to file a lawsuit involves more than answering “yes” to whether you have been wronged.  Many other factors must be considered before you pull the litigation-trigger. For starters, how much money are your really out because of someone's wrongful action?  How much money do you have that you are willing to put into fighting a legal battle?  How much time and energy do you really have available to commit to litigation?  How much time and energy does your family have available to commit?  What are your goals?  What are the risks?  Is there a solution other than litigation that could meet your goal?
 
It is natural that you would be really angry shortly after being wronged.  But, jumping head-first into lawsuit may not be the best option.  Your frustrations caused by someone else doing you wrong will not go away just because your find an attorney willing to file a lawsuit.  It may be that such an attorney wants your more than they want to help you resolve your situation. 
 
Litigation is intrusive, time consuming, expensive, and unpredictable.  And, it may not be the answer you are really looking for. 
   
Get help deciding whether pursuing a lawsuit is the best thing for you.  There are other options.  Contact the attorneys at Jones & Swartz PLLC today to discuss what options may be the most productive for your end goals.   
Posted by eswartz at 2/21/2014 11:49:00 PM
Saturday, February 1, 2014

The passage of time has the universal affect on memory – details fade and people remember things differently.  Legal battles often arise and center on parties fighting over what actually occurred way back when.  Archiving events of the past play a pivotal role in avoiding, or prevailing in, legal proceedings.  Simple steps such as drafting and sending letters or emails to follow up and summarize phone conversations at the time they occur, or preserving important documents can help you avoid a legal dispute. 

And, if the dispute cannot be avoided, properly captured history will help a judge or a jury understand what occurred way back when.  Properly captured history helps takes the guess work out of faded memories.  It also helps a judge or a jury to re-live the event.  If you become a party to a lawsuit, you stand a better chance of winning if you can show and tell a judge or jury what occurred.  

Posted by eswartz at 2/1/2014 4:55:00 PM
Saturday, January 18, 2014

 Did you see that?  If so, there is a chance that you can be dragged into someone else’s lawsuit.  Just because you are not a party to a lawsuit, do not assume that participating as a witness is without its risks.    

Before answering any questions, contact your personal attorney or corporate attorney, to inform them of the fact you have been contacted by another attorney.  If you do not have a personal or corporate attorney, you should seek legal counsel and avoid proceeding on your own.  Involving an attorney, even for the most basic request, helps ensure that you understand the full scope of the issues involved.  Having your own counsel is also a good idea because your attorney will be looking after your best interest and help you avoid certain pitfalls of providing testimony.    

The last thing you want to do is get dragged into someone else’s lawsuit.  Going from witness to party is, sometimes, easier than people think.  Giving testimony also potentially implicates your Fifth Amendment Right against self incrimination.   

Depending on the nature of the lawsuit in which you are being asked to give testimony, and your level of involvement, there may be no avoiding being a witness or brought into the lawsuit as a party.  But, consulting with an attorney can help you state just the facts while guarding against sinking your own ship.    

Posted by eswartz at 1/18/2014 5:27:00 PM
Friday, January 10, 2014
Tough times are sometimes made worse by the loss of your job or your partner’s job. One public benefit available to many folks who have lost their job is unemployment compensation. It is the public policy of the state of Idaho that: 
 
Economic insecurity due to unemployment is a serious threat to the well-being of our people. Unemployment is a subject of national and state concern. [Idaho Code Title 72, Chapter 13] addresses this problem by encouraging employers to offer stable employment and by systematically accumulating funds during periods of employment to pay benefits for periods of unemployment. The legislature declares that the general welfare of our citizens requires the enactment of this measure and sets aside unemployment reserves to be used for workers who are unemployed through no fault of their own. I.C. § 1302.
 
In order to receive unemployment compensation you must satisfy certain qualifications. Three of the most prominent qualifications are that: 1) your job loss cannot be due to quitting or leaving voluntarily; 2) being fired cannot be a result of your own misconduct; and 3) you must actively look for a new job following the loss of your job. I.C. §§ 72-1366(5) and (6). Several other criteria must also be met. Contact the Idaho Department of Labor for help filing a claim for unemployment benefits:  www.labor.idaho.gov.
 
If your claim for unemployment benefits is denied, you have the right to appeal that decision. You must file an application for appeal within fourteen days after you receive the denial of benefits. I.C. § 72-1368(3)(c). After filing for the appeal, you will be afforded a reasonable opportunity to a fair hearing. I.C. § 72-1368(6). Both you and your former employer have the opportunity to submit evidence and testimony to the appeals examiner at the hearing. I.C. § 72-1368(6). If you disagree with the decision of the appeals examiner, you would have the opportunity to request a rehearing. But, you must file that request within ten days from receiving the appeals examiner’s decision. I.C. § 72-1368(6). 
 
As an individual claiming unemployment benefits, you have the right to be represented by an attorney, if you so choose. I.C. § 72-1375. However, that attorney would have to be hired by you personally on terms agreed to between you and your legal counsel. The deadlines for filing for an appeal or rehearing are short. If you need legal assistance do not delay in hiring an attorney. 
Posted by eswartz at 1/10/2014 10:30:00 PM
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