Recent Blog Posts

It's Not the State of the Courts it's the State Courts

By Robert I. Feinberg | Published April 13, 2012 | Posted in Uncategorized | Leave a comment

Where is the best forum to bring a personal injury action? Federal Court? State Court? In a diversity action- where the plaintiff and defendant are from different states- there is an opportunity to sue in the Federal Court. Bear in mind that there still must be jurisdiction over the defendant. I will discuss this jurisdictional Read More

Don't Tinker with the Contingent Fee System

By Robert I. Feinberg | Published April 13, 2012 | Posted in Uncategorized | Leave a comment

Unfortunately, no one in the blogosphere has addressed the Manhattan Institute’s December 2008 report promoting a loser pays rule. Loser pays, you will recall, forces the losing party of a lawsuit to pay the legal fees of the winner. The Manhattan Institute report advances the traditional argument that society needs to deter frivolous suits. The Read More

Do Not Necessarily Fear a Damaging Statement. If in a Writing- it is still Hearsay

By Robert I. Feinberg | Published April 13, 2012 | Posted in Uncategorized | Leave a comment

Sometimes in personal injury law things are not as they appear. This can cut in favor of the party suing or against the party suing. It depends upon the knowledge and aggressiveness of the lawyer. An example comes from statements contained in a police report. At first blush, it may seem very troubling that witness Read More

The Signs of Head/Brain Injury…Father Knows Best (and Mother too)

By Robert I. Feinberg | Published April 13, 2012 | Posted in Uncategorized | Leave a comment

Father Knows Best (and Mother too) In a previous blog, I addressed traumatic brain injury and objective tests which depict them. We have come to hear of CT scans, CTA’s and MRI’s and, most recently, PET and SPECT scans. A recent study undertaken by Boston University Medical School also offers objective evidence, that of a Read More

With Head Injuries It’s Not About X-Rays

By Robert I. Feinberg | Published April 13, 2012 | Posted in Uncategorized | Leave a comment

Robert I. Feinberg Those of us who deal with personal injury cases have become familiar with the diagnostic tools available to the medical profession. Two classics are the history the doctor obtains from the patient and the clinical exam. Obviously, however, every bit is important is the diagnostic testing in the formulation of a diagnosis. Read More

Contributory Negligence, Comparative Negligence. What’s in a name? A lot.

By Robert I. Feinberg | Published April 13, 2012 | Posted in Uncategorized | Leave a comment

For decades, actually until the 1970s, when Massachusetts adopted the rule of Comparative Negligence, a slightly different doctrine was in effect: the rule of contributory negligence which was a complete bar to the plaintiff’s recovery. Thankfully that standard has changed. If a plaintiff is found negligent in an amount of 50% or less, he/she can Read More

Joint and Several: Yes, the more the merrier

By Robert I. Feinberg | Published April 13, 2012 | Posted in Uncategorized | Leave a comment

Many states have considered changing the rules of joint and several liability. Joint and several provides that either defendant is fully liable to the plaintiff for his/her total damages. In Massachusetts, we have a statute, which is Massachusetts General Laws c.231B, which provides that the at fault parties should pay in proportion to their per Read More

The American Rule versus English Rule

By Robert I. Feinberg | Published April 13, 2012 | Posted in Uncategorized | Leave a comment

Every so often Congress and the states legislatures consider tort reform. One of the worst ideas, I submit, is proposing to adopt the English Rule which forces the loser of a law suit to pay the winner’s legal fees. I do not expect to lose cases and, frankly, contingent fee lawyers typically take cases which Read More

A Final Consideration of the English Rule. It's ill-conceived

By Robert I. Feinberg | Published April 13, 2012 | Posted in Uncategorized | Leave a comment

Let’s take a closer look at the anti-consumer proposal of the Manhattan Institute on the payment of legal fees in civil cases, including personal injury cases. As reported in the Legal Times many years ago, anecdotal evidence from England reflects the harshness of their rule. A widow, suing as a result of her husband’s death Read More

We Are Marshall

By Robert I. Feinberg | Published April 13, 2012 | Posted in Uncategorized | Leave a comment

Personal injury law in most circumstances is the law determined by a state’s courts and its legislature. A first year torts’ textbook will have very few, if any, United States Supreme Court decisions. Rather, the decisions it includes will be those of the state appellate courts. In the case of Massachusetts, it is the decisions Read More

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