Trial Practice - Marcotte Law Firm

The Anatomy of a Lawsuit

Marcotte Law Firm LLC — Mon, 30 Nov 2020 12:36:52 GMT

The main goal of personal injury lawsuit is to make people whole after an injury caused someone’s negligence. This compensation is usually broken down into three parts: medical expenses, lost earning capacity (lost wages), and pain & suffering. However, many people don’t realize that there’s a lot more to proving a case in front of a jury. If you suffered harm due to the action, or failure to act, by another person, group of persons, or business, you may have a personal injury lawsuit. In law books, the technical term is commonly known as a “cause of action.” A cause of action is a set of facts under which one person sues another person, business, or organization. A cause of action can arise in a variety of ways. First, it can occur due to either an act or even a failure to act. This means that some cases happen because someone didn’t do what they were supposed to do. Others arise because someone did something improperly. A cause of action can also arise on account of a breach of duty, or a violation of the law. This means that there is a law or other regulation that requires someone to act a certain way, and then that person or entity doesn’t meet those requirements. Obviously, the circumstances of the facts of your case will have an impact on your cause of action. These facts supporting your cause of action support your “claim,” where you detail what the Defendant did wrong, and the injuries you suffered. For example, compensation might include coverage of your medical bills and future medical care, lost wages and potential future lost wages due to your injury. If your case ends up going to trial or arbitration, you’ll have to prove basic elements: (1) duty of care; (2) breach of duty; (e) causation; and (4) damage or injury. This is true whether the trial is in front of a jury or simply the judge. To help illustrate these elements, let’s use the example of a slip and fall injury at a supermarket. Duty of Care This refers to the responsibility one person or business has for the safety of another person. This duty can be created by law or may also fall under a reasonable care standard. In the supermarket example, the owners have a duty to offer a safe place – free of hazards – to buy your groceries. If the store owner invites customers into its facility in the hopes of selling products, it is responsible for making sure that there are no dangerous conditions that could injure customers. Everyone agrees that it is reasonable to expect you’ll be safe and free of hazards while buying groceries. Breach of Duty After establishing a duty existed, you must show that there was a “breach” of that duty. In other words, the supermarket owners did not uphold their responsibility to keep their store free of hazards. As with duty, sometimes breach of duty is defined by law. In other cases, it is common sense and reasonable care, such as making sure there is no standing water or dangerous slick surfaces in a supermarket. Causation You must be able to show that the breach of duty was the cause of your injuries. You need to prove that whatever happened to is the cause of your condition. Going back to the supermarket, this means that you must be able to link the supermarket owners’ unsafe and slick floors as the reason you slipped, fell, and hurt your back or broke your arm. Damage or Injury This is when you get to your injuries. This is typically established by your medical treatment following the accident. The injury can be either physical (broken bones, etc.) or psychological trauma like PTSD. It’s very common for some people to have both physical and psychological injuries. If your lawyer successfully proves a cause of action, the other side is considered liable for monetary compensation for things such as medical bills, car repairs, lost wages, and pain and suffering caused by your injury. In order to receive full compensation for your injuries, you should seek the help of an experienced personal injury lawyer.

Chapter 93A – Unfair & Deceptive Trade Practices

Marcotte Law Firm LLC — Mon, 09 Nov 2020 15:13:36 GMT

Massachusetts has been called many things throughout history, but at the top of that list should be “consumer friendly.” This is true even about our laws. They try to protect consumers instead of big businesses. One example is a section of the Massachusetts’ Consumer Protection Act, specifically Section 93a, that affords broad protections to consumers from merchants engaging in “unfair and deceptive” practices. This includes sales and leases, debt collection, many contracts, foreclosure, landlord-tenant law, and even bad faith insurance claims. If you have been subject to unfair business practices, the easiest course of action would be to simply come to an agreement with the business with which you have a conflict. However, if all disputes were that simple, there would be no need for laws protecting the rights of consumers. If you are unable to resolve a complaint with a merchant, i.e., an individual or business, informally, then you may decide to take legal action. As with any law, there are certain things that need to be done. This action first takes the form of what is informally known as a “93a Demand Letter” or a “30 Day Demand Letter.” State law requires you to send the business the demand letter thirty (30) days before filing a claim in court. The letter must outline your complaint, the harm you suffered, and how you want the problem resolved. The individual or business must make a good faith response within thirty (30) days, or it could subject the business or individual to treble (triple) damages and attorney’s fees. What Constitutes an “Unfair and Deceptive” practice? Section 93a does not fully define “unfair and deceptive” practices. Similarly, state courts have been reluctant to attach a black line definition to the term, preferring instead for the determination to be made on a case-by-case basis. But, you usually know it when you see it. Examples can include a car dealership doing a bait-and-switch, a debt collector misleading you about how much you owe, or a landlord trying cutting off your water or electricity. At Marcotte Law Firm, our attorneys often see unfair and deceptive trade practices when dealing with insurance companies. This can include a simple misapplication of the law or knowingly misrepresenting the facts of a case. Other times, it can be more sinister. For example, insurance companies know that an injured person can be strapped for cash, especially if the injury keeps him/her out of work. The insurance companies use that to their advantage, offering pennies on the dollar. They tell people to take it or leave it, and if they don’t take it, the insurance company will try to drag the case on for as long as possible. Who Does 93A Protect? Section 93a protects consumers – businesses and individuals – who have been subject to unfair and deceptive practices through the process of procuring goods or services. While 93A protects both business and individuals, the standard of what is unfair and deceptive is much higher to prove for businesses than consumers. Said another way, the state makes it easier for an aggrieved individual to recover damages than a business. If you win your case, you can recover the full amount of damages, plus up to two or three times that amount if the business’s violation was “willful.” In addition to having your damages multiplied, you could also potentially have your attorney fees and costs associated with bringing the lawsuit reimbursed. This is a great tool which allows average consumers to obtain settlements that they may not have been able to obtain otherwise. If you believe you have a claim, you should contact an attorney to guide you through the next steps and potentially represent you. As previously mentioned, under 93A you can potentially recover your attorney fees if your claim is awarded in your favor. So, many times lawyers are happy to not only be able to help someone in need, but also get their full bill paid for by the shady business.

September Victories for Marcotte Law Firm

Marcotte Law Firm LLC — Fri, 09 Oct 2020 17:59:35 GMT

September saw a couple of significant victories as Marcotte Law Firm is settling into its new locale. Sean Kelly secured a not guilty verdict for a client charged with drunk driving after slamming into the rear of a car whose driver had stopped on a New Hampshire country road to turn left. The investigating officers determined that the client had failed field sobriety tests, and they admitted to consuming alcohol an hour earlier. The municipality did not use breathalyzers but opted for blood tests administered at a local hospital. The suspect declined, as they later would explain due to fear of COVID. Unlike Massachusetts, refusal to take the test can serve as evidence against the accused. The client testified that the accident occurred because they had gotten lost and was checking GPS. When they looked up, the vehicle ahead had stopped. The collision, however, was substantial. Attorney Kelly not only questioned the officer’s conclusions on the field sobriety tests (first having mastered all the training and grading methodology taught to the police), but also argued that any deficiencies in her performance were equally explained by the severity of the collision. The prosecution could not show beyond a reasonable doubt that whatever symptoms might have been attributed to alcohol could as easily have been due to the collision. Ironically, our client might have been guilty of distracted driving, but was never charged with it. Happily, they have been extra cautious since. Michael Najjar prevailed at the Appeals Court which reversed a Superior Court judgment in favor of Santander Bank. Our client was the beneficiary of a realty trust which owned her marital home. Her then husband established the trust, initially served as Trustee, then resigned while substituting his sister as Trustee. He thereafter signed a $400,000.00 mortgage to Santander, whose title abstracter missed the recorded resignation at the Registry of Deeds. He later had his sister resign and he resumed the trusteeship. All of this went on without his wife’s knowledge, that is, until she learned of the mortgage during divorce proceedings. She brought an action to determine that the mortgage was invalid, because her then husband did not have the authority to mortgage the property when he took the loan from Santander. The bank argued that because he resumed the trusteeship, he re-acquired title thereby retroactively validating the mortgage. The Superior Court concurred. Attorney Najjar then became involved in the case, and contended that the Superior Court wrongly concluded the original Trustee had the right under the trust terms to reacquire trustee status. The Trial Court had reasoned the trust language gave the original trustee, who had himself created the trust, the ability to serve as trustee if he so desired even though he had at one point resigned. The ex-wife’s position was that her ex-husband had to follow the steps in the trust that governed successor trusteeship and that, contrary to the Superior Court judge’s reasoning, those terms were unambiguous. The Appeals Court agreed thereby negating the mortgage and dismantling Santander’s foreclosure. The case is significantly more complex than can be explained in this summary, and there’s more to come, but finally, the ex-wife is operating from a position of some strength. Ironically, Mr. Najjar has been involved in many appellate cases that have dealt with personal injury and insurance coverage, but his firm’s first appellate victory in a team-up with Albert Marcotte, and its most recent one over three decades later, both involved bank issues which are not the mainstay of our office’s practice areas. With a combination of common sense and legal acumen, our firm’s attorneys tend to find their way. What’s unusual about these cases? They both were argued through Zoom. At Marcotte Law Firm our attorneys pursue every avenue to achieve good results preferably without the stresses to our clients that are part and parcel of full-blown litigation. If we have to go to the wall, however, obviously we do so.

Warranty of Habitability for Snow & Ice Cases – New Law

Marcotte Law Firm LLC — Tue, 28 Jul 2020 18:48:02 GMT

The Commonwealth’s top court, the Supreme Judicial Court, gave landlords a bit of a break recently in Goreham v. Martins, 485 Mass. 54, (2020). The decision involves the “warranty of habitability” and the ways for tenants to recover for personal injuries sustained on their rented premises, including cases for people who slip and fall on snow and ice. By way of background, an injured person has a claim “in tort”, that is, that someone’s negligence caused the injury. There are circumstances, however, when the remedy is contract or semi-contract based. For example, there is a “warranty of merchantability” attached to products. They have to be fit for the purpose intended. A table saw that does not have a guard, for example, can be found not to have met the warranty of merchantability, and resultant injuries can be compensable under a breach of warranty theory. Similarly, the warranty of habitability assures that a rented property is fit for human occupation. If a ceiling falls on your head, you have a claim for breach of the warranty of habitability even though the landlord lacked notice of the hazard thereby making a negligence claim very difficult. In Goreham, the tenant of a three unit apartment house exited a fire escape that led to an icy driveway. He slipped and fell on the ice, severely injuring his ankle. He could have gone out the front door and thereby avoided the ice, but he commonly utilized the fire escape which more directly serviced his unit. The jury found the defendant landlord negligent, so for a moment the plaintiff/tenant was happy. Unfortunately, his joy was short lived. The jury next announced that they found the plaintiff 53% comparatively negligent, which means he was 53% responsible. If a plaintiff is more than 50% responsible, he/she does not get anything. Undeterred, his attorney argued that the landlord had breached the warranty of habitability. This is important because with these contract claims, comparative fault does not apply. So, even if the injured person was partially responsible, he is still able to recover. This has been an open question in Massachusetts. The trial judge disagreed with the tenant. He appealed. The SJC avoided the issue of comparative negligence and its ramifications on breach of warranty of habitability. It determined instead that a slip and fall on snow and ice did not implicate the warranty even if the landlord unreasonably failed to clear snow and ice from a common area. Relief is available, therefore, only under a negligence claim. This is not such a blow to plaintiffs as it may appear. In 2010, the Supreme Judicial Court eliminated a nonsensical historical distinction between “natural” and “unnatural” accumulations of ice and snow that immunized even landowners who never shoveled. That means that even if a landlord didn’t shovel for weeks after a snowstorm, an injured person could not be compensated for an injury. So negligence cases for injuries from slipping on ice became easier. The SJC in Goreham noted that, “[T]he scope of the warranty of habitability includes only the physical maintenance and repair of a dwelling unit.” As a practical matter, a tenant can see conditions outside of the apartment, (for example ruts in paved areas, potholes, ice), but not hidden conditions inside the dwelling (slow roof leaks rotting the ceiling, poor quality construction that allows railings to give way). Therefore, this case simply makes sure that comparative negligence applies to snow and ice cases, or other injuries resulting from something that happens outside the building. And this also puts off consideration of applying comparative negligence to warranty of habitability cases. It would be hoped that the decision in Goreham will result in some lowering of insurance liability costs to landlords, and ease pressure on rents, but don’t hold your breath. There is an interesting and disturbing aspect of Goreham that gets lost in the legal issue. Plaintiff dislocated his ankle, fractured his fibula, underwent multiple surgeries, and still had pain. The jury assessed damages at $25,000.00. This is low and unless Mr. Goreham had the most charitable medical providers in the history of the world, probably barely covered medical costs.

Voire Dire

Marcotte Law Firm LLC — Fri, 01 Mar 2019 22:03:28 GMT

The first part of a jury trial often gets glossed over in the movies and on TV: picking the jury. The legal system wants jurors who will hear the facts and come to a decision without any biases or preconceived notions. Getting those jurors takes some work.

Therefore, jurors go through a process called Voir Dire. This is just another way to say Jury Selection. First, the judge will introduce the parties, the lawyers, witnesses, and anyone else involved in the trial, and it will ask the potential jurors if they know any of these people. Obviously, if a potential juror is related to the Plaintiff or Defendant, he or she cannot be impartial.

After that, there are various obvious conflicts that are dealt with. That varies from jurors who would have issues serving because of childcare to someone who has a conflict because they are in a similar situation.

Finally, lawyers may ask questions directly to the potential jurors to gauge if there are any issues that aren’t obvious. This can be done individually, or the lawyer can ask questions of the potential jurors as a whole. The point of this process is make sure all the jurors can keep an open mind and make a decision based on the facts, as not every person is a good fit for every type of case. The lawyers ask for the opinions of the jurors on various topics, and then talk with the judge to ensure that the jury is fair for both parties.

Whether you’re a party to a lawsuit or getting ready for jury duty, Voir Dire (or jury selection) is going to be one of the first things that happens at trial. It will lay the foundation for everything that happens at trial from that moment forward.