Almost any type of personal injuries resulting from the actions or carelessness of a person or business may be grounds for a lawsuit. If you are suffering from physical, psychological or financial injuries, or have been accused of injuring someone, speak to a qualified attorney in your area.
The Legal Stuff
This article is not legal advice. Opinions offered by your family, friends or Facebook group are not legal advice. To obtain a reliable legal opinion you must consult an attorney in good standing admitted to practice in the state where you live and base your business. You can find information about law firms and attorneys in your area on the Martindale-Hubbell website.
You can save yourself a lot of money in the long run by getting good advice up front. A couple hours of consultation to help you avoid mistakes is a lot less expensive than defending yourself in a lawsuit and paying statutory penalties.
This article underscores why you may want to consult an attorney by providing general information about debt collection mistakes that can get you in trouble.
Federal and State Laws
There are consumer protection laws and guidelines on a Federal level and for each state. In the United States, the Federal Trade Commission is the nation’s consumer protection agency that enforces the Fair Debt Collections Practices Act which is the Federal law that protects consumers from being abused by debt collectors. This law is often referred to as the “FDCPA”.
States have their own consumer protection laws. A state law is allowed to be more restrictive than the FDCPA, but it cannot be less strict in protecting consumers from debt collectors.
In other words, you run the risk of breaking both Federal and state laws by collecting debts before you know the rules!
You, as the freelance service provider, are not a debt collector, but you still should play by the rules.
The FDCPA defines a debt collector as anyone whose main business is collecting debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or claimed to be owed to someone else.
The rules are specific and the penalties are high when it comes to debt collectors. Before you hire a person or agency to collect debts owed to you, protect yourself by asking an attorney what your liability will be if any collection rules are broken.
Freelancers are a rapidly growing part the business world, including freelancers that provide services to other freelancers! One area of “services for freelancers” that I find very troubling are individuals who offer to collect your debts, at the same time emphasizing they are not debt collectors.
Paying someone a fee or commission to be your virtual “accounts receivable” employee for the specific purpose of contacting and collecting money from clients who have not paid you is not going to fool anyone, least of all a jury. If it walks like a duck and talks like a duck, the jury will call it a duck!
Debt Collection Mistakes
Collecting your own debt does not make you a debt collector under the FDCPA definition, but you will still want to play by the rules, including the rules for your state. These are some of the general areas that can get a bill collector in trouble.
If your client has filed bankruptcy, you cannot keep contacting them about the debt. You may file a “proof of claim” with the bankruptcy court but if the debt owed to you is unsecured (meaning no collateral) the chance that you will recover anything is slim.
Legally, you can’t talk to anyone other than your client or their attorney about the debt. In some instances under federal law you can talk to a spouse, but you better make sure the state laws allow it.
You can also talk to a parent if the person who owes the debt is under eighteen.
You can’t publish the name of anyone who owes you money, leave messages or even send postcards. Basically you have to avoid shaming or embarrassing the person who owes you money.
You will need to be careful when, where, and how often you call someone about the money they owe you. There are many rules that protect debtors from abuse or harassment by bill collectors. A few examples of things to keep in mind are:
- A bill collector cannot call a debtor over and over, even if they are not answering the phone.
- A collector cannot call the person at work the person is not allowed to get calls there.
- The debtor cannot be called before 8:00 in the morning or after 9:00 at night without permission.
- The collector cannot call the person names or use obscene language.
- No legal action may be threatened unless the collector has the right to the legal action and actually intends to go through with it.
This is just the tip of the iceberg when it comes to debt collection and does not consider various state laws.
The best way to protect your personal and business interests is to invest in reliable legal advice from an attorney with experience in consumer issues or small business law.
Consider making a proactive investment in your business and consult an attorney before you have delinquent client accounts. Do you know if your service agreements or business contracts will help or hinder you if the client doesn’t pay as agreed?
Take advantage of good legal counsel to establish statutorily compliant business practices and collection procedures to keep your business profitable!
What is your experience with clients who don’t pay? Are you interested in more legal topics for freelancers and small business owners? Please contact me or leave your comments below.
What would you do if you were asked to give sworn testimony? Or a sworn statement? What the heck does sworn testimony mean, anyway? Sworn means given under oath. A sworn testimony or statement is your view of the facts, either verbally or in writing, and a promise that you are telling the truth.
Nothing But the Truth
If you give your version of the facts under oath, and it turns out you deliberately lied, you could be punished. The penalties for lying under oath range from financial penalties to jail time. In a criminal case, lying under oath is called perjury.
The penalties for lying under oath range from financial penalties to jail time. In a criminal case, lying under oath is called perjury.
You could be asked to give a statement or sworn testimony anytime you are involved in an event, have been near an event, or know something about an event. A car accident is an example of an event that could result in different kinds of sworn testimony.
If you are driving or a passenger in one of the crash vehicles, you are involved in the event, and will be asked to give a statement or sworn testimony about what happened.
If you were walking on the sidewalk and saw the whole thing happen, you were near the event and could be asked to give a statement, or sworn testimony to tell what you saw and heard.
If one of the drivers in the crash was drunk, you may be asked to give a statement or sworn testimony about what you know if you partied with the driver at the neighborhood bar in the hours before the event.
Your Own Attorney
If you are named in a lawsuit because of an auto accident, in most cases your insurance company has a “duty to defend” you, even if the accident was entirely your fault! That means they will hire an attorney to represent you in the lawsuit. Don
Don’t expect your insurance company to pay for an attorney if you are the one who wants to file a lawsuit, or if you have not been sued by someone who is making an insurance claim against you.
If you want to hire an attorney on your own, it will be at your own expense. Some attorneys will take your case on a “contingency” basis, meaning they don’t get paid unless you win the lawsuit and get some money, like insurance proceeds, then they will get a portion of the amount you are awarded.
If you are facing criminal charges and can’t afford an attorney, the court may appoint an attorney to represent you, often called a “public defender”.
Sticking with our example of the car wreck, if you are directly involved in the event, at first you will likely be asked to give a statement to the police officer at the scene. This is not sworn, but it will be part of the official accident investigation report.
Later, you will be contacted by the insurance companies that issues auto policies covering the vehicles involved. Generally, the insurance adjuster will give you a call or meet with you and ask you to give a statement, to tell the adjuster your version of what happened. If they intend to record you conversation, and they usually do, they should tell you or ask your permission to record the conversation. They will often ask you again at the end, to get it on the recording, if you understood that your discussion and statement were being recorded.
If you are already represented by an attorney, you should not give information to anyone who asks for it, like an insurance adjuster, even if it is your insurance company. If you are the insured person, you have an obligation to cooperate with your insurance company. That does not mean you can’t coordinate their request with your attorney.
Once you are represented by counsel, let your attorney decide a when and under what circumstances you will provide your statement. Your attorney may or may not decide to be with you when you give your initial statement to the insurance adjuster.
If you have already given a statement and later hired an attorney, don’t be surprised if the attorney immediately demand copies of any statements you already gave, even if you already told your lawyer what you think you said.
An affidavit is a written statement given under oath, of some fact or set of facts explained to the best of your knowledge. Affidavits are usually notarized.
Examination Under Oath
There are a couple different ways that most people may be called upon to give sworn testimony. A tad less formal scenario, often used by insurance companies, is to hire an attorney during the investigation of a claim to perform an “examination under oath” or “EUO”. An examination under oath is most often used to gather information before any litigation has been filed.
An EUO is part of an insurance company investigation of what happened. It is a tool used to help the insurance company determine if the event giving rise to the insurance claim will be a covered event under the insurance policy. There will usually be someone there who is qualified to take down everything you say and take your oath that everything you will say is true. The attorney will ask you a series of questions about your identity, and the facts of the case. They may ask about your finances or other information.
You may agree to participate in the EUO with or without an attorney. You are not required to bring an attorney, but you can if you want to. If you are already represented by an attorney, never agree to any kind of statement without discussing it with your attorney first.
The more formal kind of sworn testimony is a deposition. There will always be a court reporter hired to take down what everyone says on the record, and there may be a videographer if your deposition will be recorded on video.
You will be notified in writing of the scheduled deposition and may even get a subpoena. The notice will tell you if it will be a video deposition.
During the deposition you may be questioned by more than one attorney. Your attorney may also ask you questions, if he or she feels that there are points to your side of the story that are important to have on the record or to counter a line of questioning that may have been asked by the other side to bring out statements that can be used to support their side of the story.
Do’s and Don’ts of Sworn Testimony
A deposition is not the time and place to tell your side of the story. That is important to remember! On television it is always a dramatic scene where the person in the hot seat gets to tell their side of the story and exactly what they think of the other parties in the case. The person testifying may even drop bombs of information, knowledge or facts that will dramatically change the direction of the litigation – emphasis on dramatically.
As much as you may be bursting to tell your side of the story, don’t do it. You will have your day in court, literally, unless the case settles before trial. The more information you volunteer in the deposition, the more the other side will pounce on a word or phrase and drill you with questions. They will leave no stone unturned.
Do you have an attorney? Be sure to make time to meet with your attorney before the deposition.
Be prepared to work with your attorney to go over questions that you will likely be asked by the other side. Your attorney has your best interest in mind. He or she will give you some general advice on giving testimony, but above all they will counsel you to tell the truth.
Tips on Testimony
Telling the truth – answering truthfully – is not the same as blowing your stack or spilling your guts. In a deposition you do not, repeat, and do not want to offer additional information in response to a question.
Short and Sweet
I have a favorite drill for helping folks prepare for depositions. I learned this drill from one of the most brilliant and successful attorneys I know. It goes something like this:
Imaging you are the deponent. The attorney who is questioning you holds up a spoon, and asks “do you know what this is?” You immediately respond, “Sure I do! It’s a spoon!”
The correct answer, if you know what that is: “Yes.”
Yes. PERIOD. If the attorney wants you to name the object, they will have to ask that question by asking you to name that object. Get it?
I love that exercise because it is a light bulb moment for most of us.
Facts – Not Opinions
The other thing about deposition testimony is that you are there to provide facts, not opinions. You are not qualified to give expert opinions. You can relate what you saw, or heard or did. You can state where you were and what interaction you may have had with others involved in the event.
Remember, you are not qualified to give opinions as to things like “How drunk was she?” or “Do you think that bridge could hold ten cars?” Anytime they are asking what your impression was, be careful to take the time to give some thought to the question before you answer.
That’s the other thing – you do not have to answer a question if you truly don’t know the answer. It is perfectly acceptable to say you don’t know. If you are not sure, don’t guess. It is natural to try to be helpful and answer any questions asked to you directly. The attorney asking you questions is counting on that. You do not have to come up with an answer to every question! And you should not answer any question quickly. You don’t score points for a fast response.
You do not have to answer a question if you truly don’t know the answer. It is perfectly acceptable to say you don’t know.
In fact, it is better that you don’t answer every question, or any question, quickly. Always pause to think about the question and form your response. Ask to have the question repeated, or say so if you don’t understand the question. Protect yourself from saying something you don’t mean! Give your attorney a chance to object if the question is not something you should be answering.
Do you have questions about statements and testimony? Have you been through a deposition? Please share your comments!
Have you ever heard legal terms that you didn’t understand? Would you feel more confident asking for legal advice if you knew what certain legal words mean? Or are you just addicted to legal and crime drama shows and want to get the inside scoop?
This is a basic overview of some legal terms and concepts common to the United States that may be helpful if you seek legal advice or just want to improve your Scrabble game!
Legal Terms for Law Office Workers
The folks you are most likely to meet at a law office are attorneys, paralegals and legal secretaries.
Attorney – Did you know that not all lawyers are attorneys? A lawyer is anyone who has gone through law school, even if they do not give legal advice to other people. An attorney has passed a bar exam that qualifies him or her to practice in a specific area, usually a state. Only attorneys in good standing are allowed to represent you in court.
If you are looking for information on an attorney or law firm, check out the Martindale-Hubble online directory.
Paralegal – Also called a legal assistant, paralegals are qualified by training or experience to perform certain types of legal work that would otherwise be done by an attorney. A paralegal may be hired by a sole practitioner, a law firm, corporation or government agency as a regular employee or freelance contract worker. All legal work done by a paralegal is the responsibility of an attorney.
Legal Secretary – Legal secretaries perform administrative duties in a law office, and provide clerical support to attorneys and paralegals.
Criminal and Civil Actions
Most types of legal issues encountered by you or me will involve either a criminal or civil action.
Criminal cases are brought against persons accused of breaking the law. If the person is accused of a federal crime they will be prosecuted by the government through the U.S. Attorney’s office. State crimes are prosecuted through the Attorney’s Office in the state where the crime allegedly occurred. If a person is found guilty of criminal charges, penalties can result that range in severity from monetary fines to imprisonment or the death penalty.
Civil actions can be brought by an individual, or “entity” (meaning a corporation or government) who complains that another person or entity caused harm by what they did or failed to do.
Generally, when you hear about a person or company getting “sued” they are talking about a civil action.
Legal Terms in Lawsuits
The following are simple definitions of some of the most frequently used legal terms that a lay person may encounter.
Plaintiff – The person or entity who makes the accusation against another person, persons or entity.
Defendant – The person or entity accused of breaking the law or otherwise causing some type of damage or harm.
Tort – A tort is a civil wrong. By comparison, a criminal wrong is a crime.
Tortfeasor – This word translates literally to wrong-doer. A torfeasor is a person who causes civil harm either on purpose or by neglect.
Litigants – Both sides involved in a legal action. Plaintiffs and Defendants are both litigants.
Complaint – This is generally the first document filed in a lawsuit where the Plaintiff tells the Court what the Defendant did wrong and what harm was caused.
Pleadings – The documents filed in a law suit by the Plaintiff and Defendant. For example, the Complaint filed by the Plaintiff and the Defendant’s response to the Complaint are pleadings.
Affidavit – A written statement made under oath or by affirmation of a qualified authority (such a notary public). The person making the statement is the affiant, and makes the statement based upon his or her information and belief of the facts.
Subpoena – A written request for production of documents or for a person to appear in a legal proceeding. A subpoena must be issued through the local government, usually the court.
Subrogation – Subrogation is a term usually used in connection with insurance and generally means that the insurance company has the right to recover money from a third party, for example the tortfeasor in an accident.
This overview is for general information only. If you need legal advice – you guessed it – please consult a qualified attorney! Are you interested in more legal topics for the lay person? Please leave your comments below!
When a person is arrested for a criminal matter, there are legal procedures like the Miranda warning to advise that you have the right to an attorney and anything you say may be used against you.
Do you know your rights when it comes to civil matters? There is more than one legal way that you may be asked to give testimony – that means talk about something – that can later be used against you in a civil matter, even if you are not yet involved in a lawsuit.
This article explains some of the common civil circumstances where you may be asked to speak, and what to keep in mind to help protect yourself. For legal advice, always seek guidance from a reputable attorney in your area!
If you are involved in any kind of insurance claim, you can pretty much expect to be contacted by the insurance company for a statement or interview. The insurance company representative or claims adjuster will ask you a series of questions, and will usually record the conversation.
The insurance company representative may contact you by phone or come to see you in person, even if you are in the hospital or recovering from injuries.
Do you have to give a statement? The insurance company will say they have to get your statement to investigate the claim. If it is your insurance company, there is probably wording in your auto or home policy that requires you to cooperate with the investigation.
If it is the insurance company for the person or company at fault, they will say they have to get your statement before they consider paying your damages.
While you will likely have to provide a statement – and will want to tell your side of the story – you don’t have to give your statement right away. You do not have to provide a statement while you are upset, ill or medicated.
Most importantly, you do not have to provide a statement to the insurance company before you have contacted an attorney.
Remember that an insurance company will try very hard to make sure your claim is covered under the policy before they will pay any money. That also means they will try very hard to determine if your situation is not covered, even if they are your insurance company.
Even if your claim will be covered by the policy, then the insurance company will decide how much the claim is worth. That often includes cutting back on the amount because they think you could have avoided the situation or that you brought some of it on yourself.
You see why your recorded statement is so important?
Examination Under Oath
An Examination Under Oath is a sworn statement from an insured taken by an attorney representing the insurance company. The insurance company attorney will ask you questions about yourself, your background, your finances and the reason for your insurance claim. A paid court reporter will be there to take down every word you say.
Insurance companies in every state will use an Examination Under Oath to investigate claims, especially if there are large dollar amounts involved or if the insurance company thinks fraud may be involved.
The insurance company can arrange for an Examination Under Oath even if there is no lawsuit involved. You will get a letter telling you when and where to show up.
You may be told to bring copies of your personal information, for example: phone records, bank statements, pay stubs, tax returns, utility bills, mortgage and deed, and tax returns. You will be questioned about any or all of these things.
You could be asked questions about who lived with you, arrest records, your physical or mental health, or medications and injuries from before and after the incident that is the basis of your claim.
If you don’t show up or refuse to answer questions, your claim may be denied for failing to cooperate.
You do not have to bring an attorney with you to an Examination Under Oath. You need to know that you have the right to hire an attorney before an Examination Under Oath even if you did not have one when you filed your claim.
Depositions are similar to an Examination Under Oath but are more formal and not limited to insurance companies.
Depositions are part of the discovery part of a lawsuits, when both sides are allowed to ask questions and gather information they will use to prove their case to a judge or jury. You can be deposed whether you are the one who filed the lawsuit or if you are defending yourself against a lawsuit.
In the United States you have the right to represent yourself in a lawsuit, but it is usually not a good idea. You will want to have an attorney with you if you are going to be deposed.
Deposition testimony will be taken down by a court reporter and sometimes will be filmed. Any part of what you say can be used against you during the lawsuit and at trial.
You might be questioned on your personal life, employment history, military service, daily activities, finances and your education, in addition to details that have to do with the lawsuit.
Your attorney will help you get ready for a deposition so you have an idea of what to expect.
At the deposition, your attorney will speak up if the questions are something you should not answer or are not proper. He or she will make sure you get breaks when you need them if the questioning goes on a long time or ask to postpone further questioning if needed.
Do you have question about giving statements in insurance claims or legal actions? Do you have an experience to share? Please leave your comments below!
Legal proceedings can be scary and confusing for anyone not familiar with legal language and procedures. Your attorney will guide you through the process of your legal situation, and there is a good chance that he or she may talk to you about the role of an “expert witness” in your case.
What Makes an Expert
A legal definition of expert is “Persons examined as witnesses in a cause, who testify in regard to some professional or technical matter arising in the case, and who are permitted to give their opinions as to such matter on account of their special training, skill, or familiarity with it. An expert is a person who possesses peculiar skill and knowledge upon the subject matter that he is required to give an opinion upon.”
That’s a mouthful! What it means is that an expert is a person who knows a lot about a particular subject because they have experience, training or education on that subject.
When an expert tells what they think about your subject, they are giving testimony and what they say about it is their opinion.
There are two sides to every legal proceeding.
The person (or government body) that starts a legal proceeding to accuse another person or company of doing wrong is the plaintiff.
The person or company being charged with a crime or being sued in a civil action is the defendant.
An expert witness may be hired by either the plaintiff or the defendant to give an opinion on an important subject in the case.
Examples of Expert Witnesses
Television crime dramas have loads of expert witness testimony (cue the music) that make or break the case. Scientists called to the stand to explain DNA tests, blood spatter patterns, fingerprints or how poisons are detected are all examples of expert witnesses.
For most people, the most common cause of a lawsuit is personal injury. There are legal proceeding every day for personal injury claims, from car accidents to worker compensation claims.
Both the person who is injured and the party at fault will use experts to try to show, among other things, how badly the person is injured, if the injury keeps the person from working, if the person will continue to suffer from the injury, and if the injury could have been prevented.
Medical doctors are frequently used as expert witnesses. The injured person will have been treating with one or more medical doctors that could include a number of specialists, like orthopedists and neurologists.
In addition, the person or insurance company on the opposing side of the lawsuit often will arrange for the injured person to be examined by a specialist of their choosing. This is called an Independent Medical Exam (“IME”) or a defense medical exam.
Doctors aren’t the only kind of expert witness. Depending on the circumstances leading to the lawsuit, experts called to testify may include mental health specialists, accident reconstruction specialists, workplace safety engineers, mechanical specialists, or authorities on just about any subject that pertains to the case.
Then It Gets Interesting
Having an expert to testify about injuries and damages is not always a straightforward process. That’s why you need a good attorney!
The other side may try to impeach your expert. In other words, they will try to convince the judge or jury not to believe the testimony of your expert.
An expert may be impeached if the other side proves the witness is not qualified enough to be an expert, that his area of expertise does not apply to the case, or that the expert has not looked specifically at the situation at hand.
Sometimes the other side will claim that the expert’s opinion in not based on true science, if your expert has an opinion about your injuries that is unique.
Having a better understanding of the role of expert witnesses will help you if your case requires an expert. An experienced attorney will explain the need for an expert witness to prove or defend your position in the lawsuit.
Do you have experiences with expert witnesses? Are there more legal issues you would like to learn about?