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Sunday, February 22, 2015

People often say that they want the best injury lawyer for their claim.  I can’t say that I blame them.  I, too, would want the best lawyer handling my claim.  So, who is the best injury lawyer? 

Believe it or not, the best injury lawyer is not necessarily the lawyer plastered all over the phone book.  The best injury lawyer is not necessarily the lawyer paying the most in google ad words.  The best injury lawyer is not necessarily the lawyer with television ads.  The best injury lawyer is not necessarily the lawyer who helped a family member or friend with their claim. 

The best injury lawyer is a lawyer who is responsive to your needs, a lawyer who you feel comfortable with and trust, and a lawyer who is competent to handle your claim.  So, how to do know who that is?  Meet them.  Meet with many lawyers.  Get a feel for how they interact with you.  See their office space to get a sense of who they are.

You are likely to be working with the lawyer you select for a minimum of many months, if not many years.  Select a lawyer you feel is going to be as easy to work with on the day they seek your business all the way through your claim.  And, if you choose the wrong lawyer, do not be afraid of switching.  You need to look out after your own best interests.   So, first thing’s first – find a lawyer who agrees that you come first.

At Jones & Swartz PLLC, we strive to put our clients’ first.  We assign two attorneys to each claim along with a paralegal.  With three points of contact for our clients, it is our hope that we can be available and responsive to our clients’ needs.  Calls are returned and emails are responded to and face-to-face meetings are always welcome. 

Injury claims can be difficult situations for clients.  At Jones & Swartz PLLC, we strive to make the injury claim process as easy as possible for the client.   It is out hope that our way of handling injury claims allows our clients to focus on getting better and getting back to being the person they were before they were injured.  

Posted by eswartz at 2/22/2015 6:24:00 PM
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
Entries 1-5 of 23
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Feb 20

New Tax Law and Divorce and Alimony

The new federal tax code that may have significant impacts on divorcing spouses in Idaho beginning in 2019.  Under the old tax code, a spouse paying spousal support to the other spouse either while the divorce was pending or after the divo…

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Nov 17

Unwanted Grabbing Appears to be Wanted - Goodbye Sexual Harassment?

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Jun 29

Beyond Marriage: Legal Issues Same Sex Couples Face

While the Supreme Court?s decision legalizing same-sex marriage established the law regarding marriage rights, many are wondering what that decision means for same-sex couples in areas of the law extending beyond marriage. The United State…

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Apr 13

Pedestrian-Automobile Injuries in Boise ? Follow the Rules of the Road to Keep the Right-of-W…

Boise has had a large number of pedestrian accidents reported lately.   Be careful out there.   As a driver of a car or a pedestrian, refresh yourself on the rules of the road in Idaho.  Generally speaking, Idaho first requires that driver…

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