Q and A

Welcome to the Rainer & Rainer Q & A page!

(Most of these originally appeared in the Revere Journal).

Mr. Rainer and his staff at Rainer & Rainer specialize in personal injury law. Rainer & Rainer has offices located across the state. Mr. Rainer has authored several books and articles in the area of personal injury law and many of his cases have been featured in newspapers, legal journals and magazines across the country. This year, Massachusetts Lawyers Weekly in conjunction with their 25th anniversary celebration selected, of the hundreds of thousands of lawyers who have practiced in Massachusetts, Mr. Rainer as "one of the twenty five most influential lawyers of the past twenty five years," along with other well known attorneys such as William Weld, Michael Dukakis and Alan Dershowitz.

Mr. Rainer will answer law related questions submitted by you and he will be commenting on interesting legal issues of the day. Your questions may be submitted by calling: 1-800-MR.RAINER or directly via Email.

Q&A #1 Lawyer Advertising

Dear Attorney Rainer:
I find attorney advertising to be quite offensive. Why aren't there some regulations in place to control it?
Turned Off and Tuned Out Revere, MA

Dear T.O. and T.O.:
This is a very hot topic today and you are certainly not alone in your feelings about lawyer advertising. Yes, there are regulations that apply to lawyer advertising and recently new more stringent regulations have been recommended to the Supreme Judicial Court of Massachusetts by the Massachusetts Bar Association (M.B.A.). Of primary concern is any advertising which might be deceptive. The M.B.A. is also particularly concerned about the so-called 'referral services'. These are lawyers that advertise for cases but don't actually handle the cases. These lawyers 'refer' the cases they receive to other lawyers in return for a 'cut of the fee' on the case when it settles.

It is vitally important that a client get to know his or her lawyer. A lawyer should not be hired based solely on a TV commercial. A client has the right to research their lawyer, ask questions about his or her experience, trial results, malpractice claims, etc. Also, if a client is not satisfied with her lawyer, she has the right to fire her lawyer and hire any lawyer of her choosing. It is for this reason that I believe lawyer advertising is important and helpful. When advertising is ethical and done tastefully, it informs the public of their rights and gives the public a means by which to learn about many different lawyers. If you find a particular commercial offensive, call the lawyer and tell him how you feel. Or just change the channel, like I do, during commercials.

Q&A #2 Woodward Case

Dear Attorney Rainer:
As a personal injury lawyer I'd like to know your opinion as to what recourse the Eapen family has against Louise Woodward and the Au Pair agency that placed her with Eapen family?
Angela A. Revere, MA

Dear Angela:
This case presents many complicated issues, legal and otherwise. The Estate of Matthew Eapen has the right to sue Louise Woodard for her intentional and/or negligent actions which caused Matthew's death. Matthew's parents also have the right to bring a claim for loss of consortium and emotional distress. In light of the outcome of the criminal case it is likely that the Eapens will obtain a judgment/verdict and that they will be awarded a large sum of money by a jury against Woodard.

This tort action(s) would be similar to the Estate of Ronald Goldman v. O.J. Simpson case. Of course the major difference is that O.J. was acquitted at his criminal trial and Louise Woodard was convicted at her criminal trial. This makes the Eapen's case much easier to try and win. The more intriguing issue is whether or not there will be insurance to pay this judgment/verdict? Were Woodards actions intentional or negligent? Was she an employee of the Au Pair agency? Was she in the course and scope of her employment when she fatally injured Matthew? Clearly O.J.'s actions were intentional. The Eapens and the Jury believe Woodards actions were intentional. However Judge Zobel found her actions to be negligent (involuntary manslaughter). Therefore I expect that we will see these issues rehashed in great detail at the civil trial.

The more complex legal issues revolve around the Au Pair Agency and their liability. We all suspect that the Agency's insurance company is very concerned about their exposure since they have expended upwards of $1,000,000.00 to defend the criminal case. If Woodard was an employee of the Agency then they would be vicariously liable for her actions if they occurred in the course and scope of her employment. The more likely cause of action would be for negligent hiring and training of Woodard by the Agency and negligent recommendation and placement of Woodard in the Eapen's home. All in all, the civil trial should make for interesting TV watching about two years from now. Stay tuned.

Commentary By Attorney Rainer

Over the years I have represented thousands of people who have been injured in accidents. Injuries caused due to the negligence or wrong doing of others effect people from all walks of life, from the inner city to rural America, old and young men and women from all countries, religious beliefs, races and backgrounds. Oddly enough no one is spared from sharing in this peculiar common bound. I would venture to guess that everyone reading this editorial has either themselves been a victim of personal injury or has a very close friend or relative who has been injured due to the negligence of another.

I raise this point for a very important reason. There is a pervasive and very powerful propaganda machine, fueled by the insurance companies in this country, that is thematically driven by the proposition that people who bring injury claims are frauds. I realize that this is very strong statement but please allow me to explain.

Insurance companies are amongst the wealthiest, most powerful and most influential businesses in the world. Their wealth is created and maintained in three basic ways: collecting premiums; investing the premiums in money making ventures and minimizing the claims that they pay out to their insureds and third parties. As a result, there is a clear business impetus to drive a stake through the hearts of the less powerful and influential individual claimants in an effort to minimize the value of each individual claim. The insurance companies have a fiduciary duty to their shareholders to act in this fashion. Unfounded myths advanced by insurance companies include; all car accidents claimants are fakes, there is no such thing as a back or neck injury, chiropractic care is quackery and plaintiff lawyers and lawyer advertising is the cause of insurance premiums rising (note- premiums will be going down this year).

We've all heard this mythology which has been fed to us via subtle and not so subtle marketing by the insurance industry. It is through this efficient marketing that insurers reach Judges and perspective jurors and as a cause and effect reduce the value of individual claims brought by truly injured people. Their advertising dollars are well invested in this marketing effort, as proven by the very fact that they continue to do it. Truth be told a very small percentage of the premiums that we pay goes to payment of claims. The majority of our premium payments goes towards building the wealth, power and influence of the insurance companies. The bottom line is that you and I provide the fuel that finances this propaganda machine with our premiums. A portion of our premium payments is used to pay for marketing designed to target all personal injury claimants as frauds. It is this irony that leads me to conclude in this commentary that if we all took the time to really examine why insurance companies exist, we would see their real and primary agenda. I'll give you a hint- it is not to insure us. I understand that as a P.I. lawyer my agenda can be questioned, but the truth of this commentary cannot.

Reprinted from Revere Journal.

All contents copyright Robert K. Rainer, P.C., Attorneys at Law, 2000.