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FAQ's About Legal Rights & Lawsuits





FAQ's About Legal Rights & Lawsuits

Click on the following questions to see the answers:
What is a lawsuit?
  An attorney may file a lawsuit on your behalf after investigating the facts regarding your claim. A lawsuit is generally begun by the plaintiff filing a “complaint” in the appropriate state or federal court. The complaint sets out the basic facts underlying the plaintiff’s claims against those he feels are responsible for his losses, and states the nature of the damages suffered. The complaint is then served on all the named defendants.

The defendant is then permitted to answer, or to state whether the allegations in the complaint are true.
At that point, the “discovery period” begins. The discovery period allows each side, through the use of various means, to learn the facts supporting the allegations and defenses of each side. During this period, each side may make motions to the court to require further discovery, or to limit various types of evidence to be used in the court proceedings.

Once the discovery period is completed, a case may then go to trial before a judge or a jury. At a trial, there may be jury selection, opening statements, presentation of witnesses and evidence and closing statements by both sides. If it is a jury trial, jury instructions are then given to the jury by the judge. After the jury deliberates, it issues a verdict, which the court then reduces to a judgment that has the force of law. A judgment will require, if the plaintiff prevails, for example, that the defendant pay the plaintiff money.

After a verdict is rendered, the parties may file post-trial motions seeking a new trial or reconsideration of a judge’s decisions. Attorney’s fees and court costs may be awarded to the prevailing side. At that point, each side has the right of appeal from the judgment.

Do I need a lawyer?
  Not all cases require the assistance of a lawyer to be resolved. In minor cases or fender-bender-type accidents, it may be better to attempt to resolve the matter on your own without incurring the fees and costs of a lawyer. When you interview the lawyer, you should ask them whether they feel that a lawyer is needed to resolve your claim.
How do I find the right lawyer?
  Here are some questions you might ask a lawyer you are considering hiring:
  • What are my fees and costs?
  • How will I be expected to pay for them?
  • How will you keep me informed of the status of my case?
  • Who else in your office will be involved with my case?
  • How will I know about developments in my case?
  • What is the office policy about returning telephone calls and letter?
  • Do you have a form fee agreement?
  • Would you explain what this agreement means?
  • What kind of experience have you had in these kinds of cases?
  • What is your experience in this field?
  • Have you handled matters like mine?
  • What are the possible outcomes in my case?
  • Are there any alternatives to resolving this problem?
  • Approximately how long will it take to resolve my case?
  • What about mediation or arbitration?
  • What are your fees?
  • Is there a ballpark figure for the total bill, including fees and costs?
  • How will you keep me informed of progress in the case?
  • What type of approach do you take to resolving the matter?

When making your decision about hiring a lawyer, ask yourself whether you felt that the attorney listened to you and gave you an honest evaluation of the pros and cons of your legal situation.

  • Did he or she know the applicable laws in your case?
  • Did the attorney answer the questions about his or her education and experience without be offended?
  • Did you feel you got complete information regarding fee and billing practices?
  • Did you feel comfortable with the attorney’s style and personality?

There are many ways to find good lawyers:

  • Alaska Academy of Trial Lawyers. The Academy is dedicated to the ongoing education of attorneys specializing in personal injury and criminal representation. This website may help you to locate an attorney specializing the area of law in which you need assistance.
  • Alaska Bar Association. The Alaska Bar Association provides a referral service: (907) 272-0352. The Bar Association will provide telephone numbers of those attorneys willing to take cases in a particular area of law.
  • Internet research. Looking at Internet sites may educate you about a particular area of law and how to approach the hiring of a lawyer. Ultimately, however, you may not be able to utilize a lawyer you find on an internet site because you will likely need to have a local attorney or at least one familiar with Alaska law.
  • Advertisements. Attorneys have the right to advertise truthfully to prospective clients. The fact that an attorney has an advertisement, however, does not mean that he is a specialist in the area of law your case will require. An advertisement may help you to find lawyers with whom to speak. You should still be a good consumer and make certain that you select a lawyer based upon some consideration of his or her skills given your needs.
  • Referrals. You may know people who have had similar lawsuits. Because they have gone through the process already, they can be an invaluable aid to you in helping you figure out what steps you should take and how to find a good lawyer. Many people may provide good referrals to you: coworkers, friends, medical care providers, or other attorneys. If you contact an attorney who does not do the kind of work you need done, ask that person for referrals. Someone working in the field may well have a good sense of what lawyers specialize in the area and who would do a good job for you.
What lawyer’s fees and costs should I expect?
  Contingency Fees: This kind of fee arrangement is often used in accident, personal injury, and other cases involving negligence, products liability, or wrongful death claims. It means that you will pay the lawyer a certain percentage of the money you receive if you win the case or settle the matter out of court. If you lose, the lawyer does not receive a fee. You may, however, be responsible to pay court costs or other expenses that are involved.

If you agree to a contingency fee, be sure that the written fee agreement tells what the lawyer’s percentages will be and whether the lawyer’s share will be figured before or after other costs are deducted. The fee may also be adjusted if an appeal is required.

Hourly Fees: Some lawyers charge by the hour, and the amount may vary from lawyer to lawyer. Ask the attorney whether you can get an estimate of the amount of time your case will take.

Fixed Fee: Sometimes a “standard” fee is used for routine legal matters such as drafting a will or handling an uncontested divorce or DUI charge.

Costs: Most law firms will charge you for the expenses associated with your case: copying charges, deposition costs, travel, telephone charges, and expert witness fees are typically billed to the clients. A contingency fee agreement is used, such costs are usually paid at the end of the case out of the funds the lawyer has won for you.

How long do I have to file a lawsuit?
  Each type of legal claim is governed by a statute of limitations. The statute requires that your lawsuit be filed within a certain period of time after you have been injured. For personal injury claims, the limitations period is two years. If you fail to file your lawsuit within two years, you will be foreclosed from obtaining any recovery whatsoever. The law provides exceptions when you did not know you had a legal claim in the two-year period, or when the claim involves a minor. This is a complex area of the law and should be discussed with any attorney you may hire.

Please remember that a diligent lawyer will need time to obtain police reports and medical records, interview witnesses, and otherwise investigate and develop your case. If you wait until the last minute to contact a lawyer about your rights, you are doing your lawyer and your case a disservice. To fully protect your rights, please contact a lawyer as soon as you suspect that you may have a serious claim.

What will my attorney need from me?
  Here are some things you should do as soon as possible when you have been injured:
  • Take photographs of the roadway, automobiles, equipment, injuries, or other important things as soon as an injury occurs.
  • Keep important evidence such as broken equipment or busted parts.
  • Write down the names, addresses, and telephone numbers of witnesses and health care providers.
    a Keep track of your condition or expenses with a log or diary.
  • Begin pulling together your medical records and bills, recent tax returns, and wage receipts.

People sometimes believe that, once they have hired a lawyer, the lawyer will do everything necessary to handle the legal matter. In reality, for litigation to succeed, both you and your lawyer will have to work diligently toward a successful outcome. You may be expected to

  • Be truthful and complete about the facts of your claim.
  • Locate necessary documents and people important to your case.
  • Stay in regular contact with your attorney about changes in your condition or other pertinent matters.
  • Make yourself reasonably available to meet with the attorney and attend legal proceedings.
  • Pay your bills promptly
What is the attorney-client privilege?
The attorney-client privilege protects your communications with your lawyer from being disclosed to anyone else. Only in rare cases would information the two of you discuss be disclosed to anyone else. Be sure to discuss this privilege with your lawyer so that you understand it. Be sure not to discuss these matters with others, otherwise someone may claim that you have waived your right to confidentiality.
If I bring a lawsuit, what kind of damages will I be able to recover?
  Some common damages that people suffer when they have been injured include:
  1. Medical expenses, past and future (doctor’s fees, hospitalization costs, costs of physical therapists);
  2. Rehabilitation expenses (retraining, assistive devices);
  3. Lost wages (wages and earnings that would have been earned by the plaintiff but for the negligence of the defendant);
  4. Pain and suffering (compensation for the pain, suffering, and discomfort, both physical and emotional, suffered as a result of the injury); 
  5. Punitive damages (assessed against the defendant who has acted recklessly or outrageously to deter them from acting that way in the future).
What are punitive damages?
  In lawsuits, people sometime receive compensation for damages to make them whole, e.g., back wages, repayment of medical expenses, or lost property. Punitive damages, however, are not intended to compensate the plaintiff for their losses. Instead, they are intended to punish the defendant. As a result, punitive damages cannot be recovered unless it is proven by clear and convincing evidence that the defendant’s conduct was intentional, malicious, outrageous, or was otherwise reckless or in conscious disregard of your interests. There is no calculation for punitive damages. Juries are permitted to award damages based upon many factors, including the defendant’s prior knowledge of a problem existing, the egregiousness of their conduct, and their wealth. An award may be made of sufficient size to deter future similar conduct. Punitive damages awards can be many multiples of a compensatory damages award.

Under the recent Tort Reform statute, one-half of any punitive damages award must be given to the State of Alaska. Other limitations have been imposed on a plaintiff’s ability to claim punitive damages.

What is tort reform?
  “Tort Reform” is the effort by corporate and insurance interests to limit your rights under the law to obtain just compensation for your injuries. The Alaska Academy of Trial Lawyers single-handedly defended against these proposed changes for over a decade. In 1997, however, a tort reform statute was passed. The law places a cap on damages, limits the time a minor can bring a claim for damages, and gives one-half of any punitive damages award to the State.. Other significant rights were limited as well, making it all the harder and more expensive for an injured person to recover their losses when they are hurt.

A person who is injured doesn’t need their rights until they are injured. They usually don’t know how their rights have been eroded until they first meet with their lawyer. We encourage you to fully understand your legal rights and know what the Alaska Legislature has been doing to them. Find out how the Legislator from your district or your gubernatorial candidate feels about tort reform. All voters need to know that this erosion of rights is a constant one. Each year, the Legislature considers a new series of bills to take you rights away. Recently, they submitted bills to create liability for you or your attorneys and witnesses if an error of fact is contained in a court document; to allow the Legislature to have greater say over which judges are appointed;; and to protect certain industries from liability by giving them immunity when they hurt someone (the gun industry, cruise ships, etc.).

The Academy encourages you to become an educated voter and to protect your rights. You never know whether you or someone you love will someday need them.

What do I do if I’ve been injured by a defective product?
A “defective product” is one that causes injury or damage to a person or property. There are several theories under which a products liability claim can be brought: negligence, strict liability, or breach of warranty.
A defect may occur in several ways: 
  • A manufacturing defect (the design is acceptable, but the product was not manufactured to specifications, incorrect materials were used, etc.); 
  • Design defect (the product’s design is unsafe, for example where pinch points should be guarded or a shield provided);
  • Inadequate warning (where a product is known to be dangerous, proper warnings should be given to the consumer, for example, side effects from drugs or an electrical shock hazard).

Not only are manufacturers of defective goods liable for injuries caused to the people using them, but repairers or sellers may also be held responsible. Not only can buyers of products bring such claims, but also those using the product in a “foreseeable” manner. Thus, you need not be a buyer of a product in order to assert a products liability claim for an injury you have sustained.

In bringing a negligence claim, one must show that a reasonably prudent manufacturer had a duty to design a product in a safer way, and the breach of that duty caused the plaintiff’s injuries. This analysis is based on the manufacturer’s fault. A strict liability claim, however, is not based on the negligence of the manufacturer. Instead, one need only show that the product was “defective” and that the injuries arose because of that defect.

What do I do if someone in my family has been killed? 
A wrongful death action may be filed when someone has been killed as the result of negligence or other liability on the part of the defendants. The lawsuit is usually brought by the personal representative of the decedent’s estate. Dependents and surviving family members may assert claims in this kind of lawsuit. Such claim must show that the death was caused by the defendant’s conduct, that the defendant was negligent in causing the decedent’s death, and that there are surviving spouses, children, beneficiaries, or dependents. The type of damages that may be awarded in a claim such as this include the earnings that a person likely would have made over their lifetime, any conscious pain and suffering the decedent suffered, the loss of consortium, or effect on the relationship, as suffered by a spouse or children, medical and funeral benefits, and similar recoveries.
What is a bad faith claim?
  An insurance company is held to a high standard of care in their contractual dealings with their insureds. Because the economic balance of power in the relationship with the insured is so heavily weighted in favor of an insurance company, the law requires that the insurance company take special care to treat their insureds fairly. One way this is done is by imposing a covenant of good faith and fair dealing into every insurance contract. Also, there are many regulations and statutes that apply to how insurance companies handle their business and deal with their insureds.

An insurance company can be sued for acting in “bad faith” when its breaches this covenant of good faith and fair dealing in its investigation, evaluation, or payment (or denial) of a claim. If an insurance company is found to have acted in bad faith in handling its claim, the insured is entitled to all damages resulting from that action, including certain types of damages that would not be available just for breach of contract. In cases of extreme or outrageous misconduct by an insurance company, the insured may also be entitled to receive punitive damages.

If any insurance company fails or refuses to honor its contract and pay a valid claim, you have the right to bring a civil action for damages against that insurance company. In addition to suing for “breach of contract,” you might be able to bring a “tort” claim seeking damages based on the insurer’s “bad faith” handling of the claims. An insurance company, in meetings its “duty of good faith and fair dealing” must:

  1. Adjust your claim (either pay it or deny) within a reasonably prompt time;
  2. Must cooperate with you regarding the claim (timely respond to your letters and phone calls);
  3. Must tell you in writing precisely why it is denying the claim, specifying each contract term or provision upon which it relies;
  4. Must attempt to find a basis to pay the claim rather than find reasons to deny it; and
  5. Must “play fair” with you.
    As an insured, you are also obligated to deal fairly and in good faith with your insurer. You must:

1. Timely submit your claim for benefits;
2. Provide all information that the insurer reasonably asks for;
3. Provide a statement regarding the claimed loss; and
4. Generally cooperate with the insurer regarding the loss.

It is good practice when dealing with the insurance companies to keep track of your contacts with the insurer, when and with whom you spoke with their representative, and get it is writing where possible. Ask the adjuster or insurance representative to send you a letter regarding your conversations. Conversely, you can send them a letter confirming what was discussed. Having some paper trail will help both sides to reconstruct what occurred should a problem later develop. Your written contact with an insurance company should always be professional and above board.

Because of the complexities of insurance policies and insurance questions, it may become difficult for you to resolve an insurance matter without the advice of an attorney. Where appropriate, you should contact an attorney knowledgeable about the particular type of insurance questions you have. If you believe that your insurer has acted in bad faith, you should contact an attorney knowledgeable about bad faith litigation.

What is malpractice?
Malpractice occurs when a professional has committed misconduct or failed to use an adequate level of care, skill, or diligence in performance of their professional duties to their client. Any professional who renders a service upon which you rely can commit malpractice: doctors, accountants, surveyors, attorneys, chiropractors, dentists, and others are professionals who may be subject to a malpractice claim if they commit negligence that causes damages to a plaintiff.

Medical Malpractice
One of the reasons health care in the United States is among the best in the world is because of the scrutiny placed upon the medical field by malpractice litigation. Medical malpractice law is an outgrowth of the general body of negligence law. Medical professionals owe to their patients a duty of due care and can be liable for damages if they breach that duty of care. Medical negligence is the doing or the failure to do something that a reasonably prudent healthcare professional in that field would or would not do under the same or similar circumstances.

Just as in negligence law, a plaintiff in malpractice litigation must show that the damages were proximately caused by the malpractice that the healthcare provider has been accused of. It is often difficult for the plaintiff, who is already suffering from serious medical problems, to show that malpractice worsened his pre-existing medical condition. Additionally, it must be proven to a reasonable degree of medical probability that the malpractice worsened such a condition.

A medical malpractice claim is difficult to bring because it is an inherently complex type of litigation. Additionally, juries are hesitant to assess liability against physicians. Also, this kind of litigation is typically expensive to bring and often requires the use of a number of medical experts and specialists whose fees are substantial. 

Medical malpractice is the failure of a medical professional to meet the standard of good medical practice in the area in which the provider is practicing. A medical professional may be a doctor, a nurse, a medical technician or other healthcare provider. If he or she fails to meet the standard of good medical practice and harm results to a patient, the medical professional may be liable for any resulting damages. A care provider’s duty is not necessarily the duty to cure or guarantee a good outcome from treatment. Their duty is to provide good medical care according to acceptable standards in the community or their medical specialty.

The concept of medical malpractice is very broad and encompasses virtually every kind of mistake that could be made by a medical professional. They include:

  • The failure to diagnose a person’s disease or injury.
  • Improperly delaying treatment.
  • Improperly prescribing a drug.
  • The failure to inform the patient of available treatments.
  • Continuing a treatment that is ineffective.
  • Failing to provide information to a patient

Both actual and punitive damages can be awarded in a successful medical malpractice claim. Actual damages might include the cost of additional medical treatment, lost wages, lost future earning capacity, or pain and suffering. Punitive damages would only be available if the person has acted recklessly or in conscious disregard of the patient’s interests.

What should I do if I was hurt at work?
  A person is entitled to workers’ compensation benefits when they are injured on the job or when an illness develops as the result of their job. If you think you have a work injury or work-related illness, there are several steps you can take:
  1. Contact your employer and report the injury or illness. Use a company form, if one is provided. If a form is not available, write down the fact that you reported the injury or illness to your employer, along with the date and time of the report and the name of the person you provided the information to. If possible, you should also keep a copy of any company form you have used to report your injury or illness.
  2. Get appropriate medical care and while doing so, be sure to give the doctor or other care provider a complete and accurate description of the accident that caused the injury or the work activities or condition you believe caused your work illness.
  3. Take down the names and addresses of any witnesses to either the accident that caused your injury or the work conditions or activities that caused your illness.
  4. If your doctor feels that you should not return to work, or there are appropriate job restrictions, get that in writing and make copies of any and all restrictions your doctor gives you. Keep a copy and give the original to your employers.
  5. Keep track of all your time off work.
  6. If you have not received workers’ compensation benefits or notice that you will be receiving workers’ compensation benefits within a reasonable period of time (usually 30 days), you should contact a competent, qualified workers’ compensation attorney.

If you have a workers’ compensation claim, your employer is responsible to pay (1) medical expenses (the cost of hospitals, doctors, medical treatment); (2) disability pay (either temporary while you’re getting back to normal or permanent if you never fully recover); or (3) retraining benefits (if you are unable to go back to the job or other jobs you have held, you may qualify for retraining benefits).

Under the workers’ compensation system, you can receive replacement income for medical expenses and lost wages for your accident or illness on the job. Most illness or injury that is connected with your work place is covered. This true regardless of the seriousness of your accident or injury. You will not have to establish fault or negligence in order to collect.

After you have been hurt, you must inform your employer immediately. The employer will give you a claim form to complete and will submit it to its insurance carrier and to your state workers’ compensation agency. The claim form must be filed within a specified time period or you lose your right to benefits. You will be notified of how much you receive, but it will not be your full wages.

The workers’ compensation remedy is the exclusive remedy for an employee to obtain replacement income or medical coverage for work-related injuries.

The basic benefits are temporary disability benefits, medical benefits, and permanent disability benefits. The benefit limits are usually based upon your average weekly wages and are limited by a set formula.

Injuries and illnesses sustained at work are covered only when they arise out of your employment. There has to be shown a connection between the accident that caused the injury or illness and the scope of your employment duties. Illnesses that arise out of the particular work hazards may also be covered even though they are not the result of an accident.

What if my on-the-job injuries were caused by someone other than my employer?
The workers’ compensation system gives you a claim against your employer’s insurance policy for workers’ compensation benefits. You are expressly barred by a state statute from bringing any claims against your employer. That is true even if the employer has acted egregiously in causing injury to you. On the other hand, there may be third parties or others that you feel also caused your injury. For example, in the construction or oilfield setting, your company may have been an independent contractor supervised by a general contractor or another company. If the general contractor has failed to abide by safety policies and contributed to how your accident occurred, you may have a claim against the general contractor that is not barred by this statute. Because this is a complex area of the law, you should talk to an attorney knowledgeable about personal injury claims to make certain that you have properly analyzed any potential claims you have against third parties.
What should I do if I’m being a harassed at work?
Many circumstances may constitute illegal sexual harassment in the workplace.
  • Repeated sexual innuendoes
  • Obscene or off-color jokes
  • Sexually loaded letters, faxes, e-mails or graffiti
  • Sexual propositions, insults, or threats
  • Sexually oriented or demeaning names
  • Persistent, unwanted sexual or romantic overtures
  • Sexually suggesting sounds or gestures
  • Displaying pornographic material in the work place
  • Coerced or unwelcomed touching
  • Subtle or overt pressure for sexual favors or coerced sexual intercourse as a condition of employment

If these types of improper conduct are occurring in your work place, you may have a legal claim. You should contact an attorney experienced in handling harassment or employment claims.

What should I do if I’ve been wrongfully fired from my job?
If you are an “at-will” employee, these means that your employer can terminate your job on a moment’s notice for essentially any reason. Unless the termination violates federal or state law, company policies, or implied contract, there is very little that an at-will employee can do legally to prevent termination.

On the other hand, there are circumstances where an employer cannot fire you except for cause. For example:

  • " Your company’s employment policy requires for cause justification.
  • " You have a contract with the employer that contains such a provision.
  • " You are the member of a labor union or protected by a collective bargaining agreement.
  • " You are a government employee under the protection of the civil service laws.
  • " Your termination would violate state or federal laws, for example, whistleblower’s protection, civil rights, age or disability discrimination.

Before you take action, you should discuss with an attorney knowledgeable about employee rights what the facts are leading up to your termination.

What should I know about my automobile insurance?
Your automobile policy provides first-party coverage and third-party coverage. First-party coverage covers you and your property (such as medical expenses, damage to your vehicle, and the insurance company’s duty to defend you if you are sued). Third-party coverage is for your responsibility to pay for injuries you cause to other people or their property. These coverages, and their exclusions, are set forth in your policy.

In exchange for the payment of a premium, the insurance company promises to provide compensation in the event of certain occurrence.

Each policy has liability limits, which is the most that the insurance will pay on the coverages you have paid premiums for.

Your vehicle may be covered in several ways. Comprehensive coverage provides coverage for the loss to your vehicle due to causes such fire, theft, vandalism, etc. Collision covers damage to your vehicles in the event it collides with another vehicle or object. Both comprehensive and collision coverage may be subject to a deductible. A deductible is the amount of damage your are responsible for before the insurer provides coverage.

Most insurance policies require that a notice of loss be provided to the insurance company. When you are involved in an accident, you must contact your insurance company and tell them about the accident. If you fail to your insurance company about an accident in a timely manner, the insurance company may try to deny coverage for the occurrence.

Some insurance policies have mandatory arbitration provisions should you dispute the amount of payment the insurer is willing to provide to you. In arbitration, neutral arbitrators are selected, and evidence is presented to them. The arbitrators then determine the amount of an arbitration award.

What do I do if I have a problem with my lawyer?
  If you’re not satisfied with the quality of the work done by your lawyer, or do not feel that your relationship with the lawyer is all that you had hoped it to be, you are not “stuck” with your attorney. You have a number of options. First, if you are unhappy with the way your lawyer is handling your case, say so. It may be that the lawyer is not in touch with you as often as you would like, and the two of you may be able to work out a solution. If you are unable to get the changes made that you would like, you are free to change lawyers. You should know that you are entitled to obtain your file if you are intending to terminate your relationship with your attorney. If you are unable to secure the file from your lawyer upon reasonable request, then you should notify the Alaska Bar Association.

If you and your lawyer have a disagreement over a fee, and you cannot settle it yourselves, you may also take your dispute to the Alaska Bar Association. They have a procedures set up to assist you in resolving any fee disputes you have with your attorney.