By: Caroline R. Kert
Over my years as an attorney and mediator, I have handled a lot of pre-trial conferences and mediation efforts in civil cases. I’ve watched Defendants stand up in court, unrepresented, and plead their case. I’ve had conversations with Defendants who call my office hoping to negotiate a settlement. So, I’ve heard every kind of excuse about why a Defendant thinks that they are not required to respond to a Summons and Complaint.
These excuses can range from the heartbreaking (“I’ve had a *really* bad run of luck and the Plaintiff should cut me some slack”) to the expected (“It’s someone else’s fault” or “I don’t have any money to pay”) to the bizarre (“This is all part of a government-led conspiracy to ruin me”). One of the most frequent “excuses” that I hear, however, is that the Summons and Complaint were not properly served. Rarely is the excuse valid.
There appears to be a widespread misconception in the public about what will stand as proper service and what will get a Defendant (at least temporarily) out of the courts. Here are the top three arguments I’ve heard that service was improper and the reason that these will fail most people in Colorado:
- “I know the person who served me”/”I don’t know the person who served me”
The only restrictions in Colorado regarding the person serving the Summons and Complaint are that they be over the age of 18 and that they not be a party to the action. You may get served by a Sheriff’s deputy, a professional process server, or just an adult friend of the Plaintiff. As long as they are over 18 and not a party, you will need to respond to the Summons and Complaint.
- “They left the papers with someone else”
You do not need to be personally handed the Summons and Complaint in Colorado. You will be considered “personally served” if the legal papers are left at your home with a family member over the age of 18. You will also be considered “personally served” if the papers are left at your place of work with your boss, secretary, HR department, or any number of other co-workers. Special rules apply to Defendants between the ages of 13-18.
- “I just refused to take the documents”
Colorado recognizes “service by refusal”. If you refuse to accept the papers, and the process server has reason to identify you as the proper Defendant, they merely need to state what they are serving and leave the papers behind in a conspicuous place. You’ve just been served.
Failure to respond to a Summons and Complaint is a dangerous game. If you have been properly served, a default judgment may be entered against you fail to show up in court. Any defenses or counterclaims that you may have had may be forever lost. If you have been served post-judgment documents such as Interrogatories or a Subpoena, your failure to show up in court may result in a contempt citation, or even a bench warrant, being issued against you.
If you have been served legal documents in a civil matter and need help responding, call one of our civil litigation experts at 303-763-1615 or email email@example.com.
You may have heard the phrase “no fee unless we win” on personal injury commercials. But what does it actually mean? The “no fee unless we win” arrangement is referred to as a contingency fee. The “contingent” portion of the fee means that the attorney gets a portion of what the client’s overall settlement is. So, for example, if a client gets a settlement of $30,000.00, the attorney gets a previously agreed upon percentage of that number. If the client gets $0, then the attorney gets $0 as well – this is the “no fee unless we win” part.
A contingency fee is either a set or escalating fee often utilized in personal injury cases. A set fee would be a percentage, typically 33.3333%, of the overall settlement. If the fee is set, this means that the attorney takes 33.3333% no matter if the case settles before going to trial or after a case is a tried.
If the contingency fee is an escalating fee, then the overall percentage will escalate depending on how far the case is taken. For example, if the case settles before the attorney files a complaint, the attorney may take 33.3333% of the settlement. If the attorney has to file a complaint, they may take 35%. If the attorney takes the case all the way through trial, they may take 40% of the jury verdict award.
Contingency fee arrangements are most often seen in personal injury cases, such as automobile collisions, slip and falls, wrongful deaths, and medical malpractice. Contingent fee arrangements may be available for employment law or collection matters. They are rarely or never available for business services such as drafting business documents, business litigation, divorce, child custody, bankruptcy, or criminal matters.
Prior to entering a contingency fee agreement with a lawyer, make sure that you speak with the lawyer about the contingency fee arrangement to ensure that you fully understand the agreement, including the risks and benefits to you.
“What’s my case worth?” This is a question that our personal injury attorneys hear almost daily. The answer is that your case value depends on a lot of different factors. The main factors are:
- Liability – Who is at fault in your case? If you were involved in a car accident and you were not ticketed, but the other driver was, then you are likely completely not at fault. Other cases are not so simple. Fault can be apportioned between the parties, for example, in a slip and fall on an icy sidewalk, you may be found 30% at fault while the landowner is found 70% at fault. If liability is apportioned, it can greatly decrease the value of your case.
- Medical Treatment – Did you seek medical treatment immediately after the incident? What kind of treatment did you seek (hospital, physical therapy, etc.)? Did you have to treat for a few months or a few years? How much in medical bills were incurred during your treatment? Injuries requiring invasive surgery or permanent impairment are often worth more than cases involving muscle sprains and strains.
- Damages – Damages are the largest category for determining the worth of your case. It takes into account medical bills, lost wages, and past and future pain and suffering. If your injury has had a huge impact on your life, for example, you broke both legs and were unable to work for a certain amount of time, the value of your case is likely to be greater than cases involving a nagging or inconvenient injury.
If you’ve been injured, it is important to talk with a personal injury attorney so that you can evaluate the potential value of your case and discuss all your options.
Sometimes, things just go sideways.
Despite the best intentions of your organization’s Board, Officers, staff, and key volunteers, one misstep can threaten the entire mission. Whether there are allegations of financial malfeasance, inappropriate conduct, insufficient entity formalities, or some other variant, the Board of Directors must take quick action to decide if an internal investigation is warranted.
Once you know you need independent inquiry, who should you call to help you?
At the very least, your internal investigator must be unbiased. Ideally, an investigation is conducted by outside counsel or a special committee. And, your choice of investigators is an important as what they uncover.
In order to be productive and get meaningful results, your investigator should:
- Understand the culture of your organization.
- Commit to interviewing the correct parties, including individuals who were involved with the organization at the time period under investigation.
- Be well versed in how to conduct an investigation and how to evaluate credibility.
–(Remember, this is NOT a case of “he said/she said, so we’ll never know. Part of the investigator’s job is to make credibility assessments).
–Your investigator should know how to rely on asking open ended questions.
–Your investigator should have a delicate approach to asking questions that telegraph the subject or intention of the investigation, and should know when to ask them.
- Be adept at conducting interviews with emotional witnesses.
- NEVER use the services of an investigator unless they are licensed or subject to a licensing exemption. In Colorado, employees, attorneys, and CPAs for the entity may conduct an investigation under an exemption. Other exemptions do exist. But, for the most part, your wise and level-headed HOA President is not an appropriate person to conduct the investigation without an independent relationship to the organization.
- Always work with an investigator who understands the importance of defining the scope and purpose of the investigation with the board at the outset. In particular, you should understand what standards of proof will apply to the findings and recommendations. Miscommunications on scope will not only waste time and energy, but may result in a contaminated investigation. Once interviews have been conducted, it is difficult to revisit witnesses and receive answers that are free from outside influence or revisionist reflection.
- Always work with an investigator who has the expertise to identify and recommend ways that your organization can strengthen its policies, procedures, and formal documentation. The most productive investigations will help you minimize risks in the future.
Once your investigator has completed the investigation, the Board of Directors should use the findings and recommendations to come to a good faith, well informed decision about how to respond. Only independent Directors, those who are not implicated in the underlying issue, should make the decision. As always, Directors have a duty to act in the best interests of the organization. Hiring a competent investigator will not only help the organization reach a reasoned decision, but will protect the Board from individual liability.
If your business or nonprofit organization needs assistance with an internal investigation, contact Caroline Kert, Esq. at 303-763-1615 or firstname.lastname@example.org.
In Colorado, individuals who are pursuing personal injury claims relating to an auto accident have three years to file a formal lawsuit against the individual at fault for the accident for compensation of their medical expenses, lost wages, physical impairment, and pain and suffering. During these three years, the majority of cases settle directly with the at-fault driver’s insurance company.
Whenever a personal injury claim is made, the insurance company who provides coverage for the at-fault driver assigns an adjuster to the claim. The adjuster evaluates the claim, reviews all relevant documents, speaks with the individual’s attorney, and may take a recorded statement from the individual making the claim. This is where it becomes vital to have a personal injury lawyer representing your claim to the insurance company. A personal injury attorney will know what documents are needed to support your claim and how to present those documents and facts in a way that will maximize the amount of the insurance company’s settlement offer. Presenting your claim to the insurance company is a comprehensive and skilled manner will often allow an injured person to fairly settle their claim without having to go through the time, expense, and uncertainty of a trial.
If you were recently in an auto accident and have not yet had the chance to obtain a personal injury attorney, the insurance company might offer you a settlement in order to close your claim before you have had a chance to fully evaluate your injuries and your options. If you accept the settlement, you may be accepting an amount far lower than what you are entitled to.
Settlements are not offered without an absolute release on your behalf. This means that you cannot accept the settlement and cash the settlement check without giving up your rights to further payment from that insurance company. Depending on the permanency of your injury, the extent of your injury, past and future medical bills, and any lost wages that you may have incurred, it is important that a personal injury attorney evaluate your case prior to your accepting a settlement agreement.
If you’re being offered a settlement on an auto accident case and do not know if the settlement is fair, contact the personal injury attorneys at The Law Offices of Daniel T. Goodwin to discuss your options.
To improve the quality of the consultation, as well as the case once it is accepted by the Firm, it helps if you prepare for your initial meeting with the attorney.
Before you come to the meeting, gather all documents, contracts, agreements, statements, invoices, guaranties, tax documents, notices, witness statements and/or witness information, pictures and videos, etc., you have in reference to your matter. If at all possible, sit down and make a timeline or a history of the issue so that dates and events flow in the proper order and the storyline is easier to understand. A journal or diary would be beneficial throughout the matter.
If you are seeking assistance with preparing a contract or a promissory note, take a moment to create an outline of the points to be addressed in the contract and note the consideration and who will be responsible to perform which point.
If you are an individual seeking assistance with an employment matter, sit down and make a timeline or a history of the issue so that dates and events flow in the proper order and the storyline is easier to understand. Include your start date, your title at start, your pay at start. You will want to include any changes to that information up to the present date. Also include any problems there were, evaluations, and any commendations or awards you received. Please provide any company policies you may have. All of this information is important in the resolution assessment.
If you are an employer seeking assistance with an employment matter, please bring the employment file, company policies, and an outline of the issues to be discussed so that a proper resolution can be assessed. If you are seeking to create company policies, then bring in an outline of the issues you have and ideas on policies you desire to create to address those issues.
If you are seeking a consultation in reference to a potential litigation matter (collections, business and owner disputes, real estate dispute, evictions, appeals, partnership conflicts, minority shareholder suits, family business issues, breaches of contract, employment matters, etc.), please make certain to bring all the documentation to show your position from start of the relationship to the present. In this type of matter, it might be an easier presentation of your matter if you make a timeline and then support the timeline with any documentation, etc., that you have. As many names of involved parties should be ready to be provided.
If you are seeking a consultation in reference to tax resolution (tax liens, levies and garnishments, audits penalty abatements, offers in compromise, etc.), then please bring whatever documentation you have regarding the situation, including copies of notices and your tax records for the past few years (or more if the situation in question began before then) to the present. Here again, a timeline or history of how you got into the situation, along with any supporting documentation would be beneficial.
If you are seeking a consultation for intellectual property, bring (as best you can) the property with you when you meet with the attorney. A copy will be needed for any application.
If you are seeking assistance for a small business or arts and entertainment (contracts, partnership agreements, business sales and purchases, franchises, etc.), bring whatever contracts or agreements for which you seek assistance with you. If you do not yet have a contract or agreement, bring the outline of the points you are looking to incorporate into a contract or agreement. If you are considering the start of a business or seeking to form an entity or obtain a liquor license, then bring your ideas and any documentation you have accumulated surrounding those ideas.
If you were involved in a collision and have sustained injuries, you might want to bring pictures of the damaged vehicles, videos of the scene, a rough sketch of the positions of the vehicles drawn out, a complete copy of your insurance policy, a copy of the police report and/or card of the responding officer, any witness information provided to you, and any pharmaceutical, medical, billing, and other expense records that you have in your possession related to the incident. Keeping a journal or diary of who you treated with and when, work/school you missed and why, prescriptions, out of pocket costs and expenses, limitations and the steps taken to work around those limitations now in your day-to-day life due to the injury would be beneficial through the matter. You might also include a list of equipment, people and companies or organizations (along with their cost) you have had to depend on and their expenses and limitations that they have had in providing you the assistance you have required since your injury.
Likewise, if you were involved in a personal injury resulting from a slip and fall, you might want to bring pictures of the location of the slip and fall in order to show what caused the slip and fall. You will want to compile as many of the same things you would had you been involved in a collision.
If the matter you have involves a wrongful death or a medical malpractice, bring a copy of the medical records from the date you were first aware of the potential malpractice or the treatment that caused the wrongful death, and a written statement from a doctor identifying the potential malpractice or other information, witnesses and evidence surrounding the wrongful death. Before a wrongful death or medical malpractice case can be filed, an expert in the subject field will need to be located and services paid for a determination that there was (or was not) practice below the standard of care. The attorney can help you to find an appropriate expert. The cost for the expert opinion varies.
If you seek assistance with a real estate matter, please note that no one in this Firm is a licensed broker. That being said, as attorneys, there are a number of real estate matters that can be handled such as disputes (including non-litigation and litigation), contracts of any kind, transactions, closings, transfers, deeds, lien review and placement or removal. You will want to prepare an outline of the issues, people involved, real estate involved, and lien information so that it is clear the type of assistance you will require that can be provided.
If you seek a power of attorney for some reason, then decide exactly what the power of attorney is for, the length of authority to be given, and who you trust to responsibly handle that authority. Bring in any documents that might pertain to subject matter of the power of attorney you desire.
If you seek to establish an estate plan, you will need to bring information on your family and potential heirs (names, addresses, relationships to you). You will also need to make a list of your assets and determine what you would like to have happen to them. You might want to determine how you would like to proceed in the event of your death, i.e., funeral, memorial service, cremation, burial instructions. Further considerations might be whether you want a power of attorney or a medical power of attorney (also known as a living will) and the extent to which you desire to allow your power to be shared and/or your health care plan should you become incapacitated. If you would like your estate plan brought up to date, then please bring your current estate plan with you.
If you seek assistance with a probate matter, please bring a copy of the will (assuming there is one) and any other documentation you have regarding the probate estate.
The more information you bring with you, the easier it is for the attorney to see and understand the overall picture and how you are affected by the circumstances. The attorney can review the documents and information and make a more knowledgeable assessment of your matter and advise you accordingly.
So after you have been in a car accident, you’ve made the first step in your personal injury claim: scheduling an appointment with a personal injury lawyer. Here’s what you may expect during this initial consultation:
- Details about the accident. Your lawyer will likely want to know everything leading up to and after the accident. The time of day, the weather conditions, what you were doing when you were hit, what you experienced upon impact, and all information that you obtained from the other driver. If you have the police report, pictures of the vehicles, and/or exchange of information sheet, make sure to bring a copy for your lawyer to review.
- Your insurance coverage. Specifically, whether you have UM/UIM (uninsured/underinsured motorist coverage) through your own insurance provider. Make sure you bring your policy information to the appointment.
- Your medical history. This includes past injuries and past motor vehicle accidents, especially if the car accident has aggravated any previous injuries.
- Your injuries. What injuries did you incur from the accident, and what medical attention you have sought. Bring the contact information for each medical provider that you have seen, along with any referrals that you have been given.
- The effect that the car accident has had on your life. Outside of injuries and medical appointments, how have your injuries affected your home life, personal life, work life, physical, emotional, and social health.
Social Media and Your Personal Injury Claim: Part One
If you have been hurt in an auto accident and are thinking about, or are already, pursuing a personal injury claim, and are one of the millions of people utilizing social media, there are things you need to keep in mind before posting on your online profile.
Anything you post, including seemingly harmless posts about a recent vacation or outing with friends and family, might be used by the insurance company to deny or limit your claim.
Keep the following in mind before you post:
- Request that your friends do not “tag” you in their posts as you do not have control over what they post.
- Change your privacy setting to maximum security, make your profile private, or temporarily suspend your profile.
- Do not accept “friend” or “follow” requests from accounts that you do not know.
- Do not post anything that you would not want a jury or a judge to see, even if you think you have a good explanation for it.
- Do not post anything about your personal injury claim.
- Do not post anything about your medical care.
- Do not post anything about conversations between you and your attorney.
Whiplash, also known as a neck strain, is a common injury following a car crash. When a car is hit by another vehicle, the impact can cause your head to “whip” forward, backward, or to the sides in a sudden and violent motion. When the force from the collision is strong enough, it can stretch and tear the muscles in your neck.
Symptoms of whiplash may include headaches, tender muscles, pain, stiffness, decreased motion, and a “knotted” feeling.
The symptoms may start immediately after the collision, or they may take up to a week to manifest.
Treatments, such as painkillers, a neck brace, applied heat or ice, or massage therapy may aid in the recovery process, however the injuries may take a significant amount of time to heal. While they heal, the injury can have a significant impact on your life, from your work, to sleep, to physical activities and exercise.
At the Law Offices of Daniel T. Goodwin, our personal injury attorneys are here to protect your interests. We take the worry and stress of a legal claim away from you to let you focus on what matters most: regaining your health and healing your injuries.
Call us today at 303-763-1600 to speak with one of our Broomfield personal injury attorneys.