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Ask Our Lawyer - April 2010

Litigation Funding , Or How Does An Injured Biker Pay The Mortgage While The Case Is Pending?

Everyone knows that litigation can be expensive, very expensive. Often, plaintiffs with a strapped budget have a much harder time riding out the storm until a settlement is reached, potentially causing them to settle for less than their case is really worth. Plaintiffs that have sustained injuries and are now disabled may very well need money to live on during the interim period before they receive their settlement. Moreover, an insurance company, or other wealthy litigant, will probably be in no hurry to settle until they reach an agreement more in their favor, regardless of how long that may take. Regrettfully, this is where litigation funding may be of service.

Litigation funding companies may advance a plaintiff money for living expenses, medical care, or for whatever else the money is needed, for a stake in the final settlement. This type of lending is nonrecourse, meaning that in the case the plaintiff loses, they owe nothing to the funding company. They are only liable for repayment from the settlement money they receive. Of course, this is not all bliss, and should only be used as a LAST RESORT. The interest a client will owe on the advancement will reach what feels like adding insult to injury, as the interest can exceed the amount lent by more than an unreasonable amount.

These companies decide interest rates and the amount they are willing to advance based on the merits of the case. So the stronger the case, the better deal the plaintiff will receive. The longer the case takes to settle, the higher the effective interest rate is going reach, which begs the question, “does this really level the playing field?” Well, maybe in some cases, and maybe not in others. With the litigation funding industry still in adolescent stages, it will be a few more years before we can decide whether or not this is a good thing. In some states, the practice of litigation funding may be illegal. In the meantime, here are a few pointers if this seems like an option you might want to pursue:

●          Talk with your attorney and discuss options before making any decisions

●          Exhaust all other means of financing first, as this should be a last resort

●          Make sure the lender is a licensed financial institution

Stay tuned: We will update our review of litigation funding companies in later articles.

Some Bikers May Have More In Common With A West African Country Than They Think- The Power Of The Commonality Of Motorcycles

YEP. In the West African country of Senegal, most are black and are Muslim, and they love motorcycles, especially Yamaha’s. They also love American Country music – as strange as that sounds. Most know just about every word of the biggest hits of Willie Nelson, Johnny Cash, Charlie Pride and other country music stars. Actually, they seem to be wacked out over country music and Yamaha’s (and I mean that in a good way). Go figure.

Here is how I learned this. Recently, when I jumped into a cab in mid-town NYC, I expected the usual ride to the airport. We had several going, so I sat up in the front seat. Got to small talking with the driver and learned that he loved to ride motorcycles, especially Yamaha’s and that he was from Senegal, in West Africa. 

While I was in the cab I decided to take a chance because of a previous Senegal cab driver experience, and ask the following, “by the way you wouldn't happen to like country music would you?” He looked at me like it was a trick question. He smiled and admitted that he and his wife were life-long Willie Nelson fans. I asked, “what about jazz, blues, rhythm and blues, or god forbid – rap?” “Nope – just American country music.” Having pre-bonded on motorcycles and country music, we did like new almost friends do – talked about politics and things, especially how conditions were in Senegal. He allowed that times were tough there. He worked 75-80 hours per week so he could send money back to his kin. We also talked about religion. He noted that the country is Muslim, “but not like those other kinds of Muslims.” I believed him.

He also said that if you were to walk along the beach at night in Senegal, you would find his people with their motorcycles, playing the likes of Willie and Johnny and Charlie Pride all while sipping on a Budweiser and some Jack. I can not imagine riding around in any other county than the USA. But if I did, I think I would feel right at home riding in Senegal. And get this: Senegal is a non-helmet COUNTRY. They could use an ABATE Chapter there. For sure, the next time I am in NYC, I am taking a lot more ABATE bumper stickers. Those guys from West Africa love them.

Waivers, Waivers and More Waivers

Recently I received suggestions from an officer of ABATE.

Q: I would like to thank you for volunteering and doing the breakout sessions at the ABATE State Seminar this year. I feel personally it could have been a more informative session on the Chapters legal responsibilties. In your column can you address ABATE's legal responsibilities particularly the following subjects – releases and waivers, road hazards regarding motorcycle runs and other safety checks, and selling/providing alcohol to members and the public. - Jay Spivey, President , Will County Chapter, A BATE of Illinois, Inc.

A: Jay, you are right. And in the coming months I will make sure to answer each of the legal concerns in your email. Clearly, my job is to provide legal advice for our ABATE leaders and members on a continuous basis. I forget that over the last 25 years of providing this assistance to our leaders, there has been a shift-change from one generation to the next. In the coming months, I will address the most pressing concerns of ABATE officers/leaders – hopefully in a clear and helpful way. If I say something not understandable or off the mark, take me to task and let me know. My email follows this article.

Kids and Pegs

            Q.       The ABATE state office has been working on a tri-fold “ Kids and Motorcycles ” pamphlet , which will offer some common sense tips on kids and motorcycles (passengers, dirt bikes, etc...). We had a question about the law regarding children as passengers. I believe to carry a passenger , the bike must be equipped with a seat/saddle and have foot pegs. Obviously, the intent is that the passenger's feet rest on the pegs as we would not suggest or encourage having a small child “ teetering ” out of control on the seat with their feet “ dangling, ” but I do not believe the law specifies that the feet must actually reach the pegs. Do you have any thoughts? – Jay Jackson, Executive Director, ABATE of Indiana Inc.

            A:       Great question. Most state statutes require passenger foot pegs, but do not require that legs of the passenger must reach the foot pegs, although that is common sense. There is an adage in the law requiring that this kind of statute be strictly construed. One can argue that the foot pegs could have been intended for ease in getting off and on the motorcycle for the passenger. I know that may not meet the red faced test, but the state has the burden to prove the intent of the law. I say the law is ambiguous. What if the passenger only had one leg or a low amputation – can they ride? I say yes. I suppose a prosecutor could argue that a foot peg that was out of reach for a passenger was not a foot peg “ for such passenger. ” Just as handlebar height is operator specific, so too may be footrest height. I found no judicial rulings on the relevant law, so we have to use our best judgment as to how this would be interpreted.

Single Spouse Bankruptcy

            Q:       I have a financial question. My spouse of 26 years has gotten into some financial problems with credit cards. She cannot pay these and I certainly cannot. Can she file bankruptcy on these with out me? We have some debt that is in both of our names which is current and up to date. I have a very good credit rating which I don’t want to endanger. If you have any ideas or suggestions please let me know. Thanks.

A:  You have asked a good question. Check your mortgage or other loan documents that she and you have signed. Those documents may have a proviso that says that a bankruptcy filing by even one of you is an event of default. Even so, you may get them to waive that provision so long as you stay on and keep your obligations. Your wife may be able to do an informal work-out of the debt problems she faces without filing. Check with the creditors and see what they will go for. If you solve your problems with the joint debt, I see no reason while she could not file. After you have made that inquiry, you should check with a bankruptcy lawyer.

Packin’ a Taser?

Q: Recently a taser stun gun was given to our Chapter to raffle off or auction off as part of a fund-raising event. Is it legal to auction off something of this nature and if so what would our liability issues be? This is not a toy or a weak shocker, it is a professional taser similar to what law enforcement officers carry.

- Mick Eddington, President of Southern Illinois Chapter 27, A.B.A.T.E. of Illinois Inc.

A: Taser devices are not considered firearms by the United States government. The laws pertaining to possession and carrying of “ stun guns ” and “ tasers ” vary widely from state to state. They refer to devices that produce electrical impulses that cause muscle spasms and induce temporary disability. In modern tasers, the electrical pulse is delivered through wires, rather than by having the device come into direct contact with the target , as required by a stun gun .

Seven states, the District of Columbia and many cities make it illegal for anyone, including law-abiding citizens, to possess or carry a stun gun. Among them are Hawaii, Massachusetts, Michigan, New Jersey, New York, Rhode Island and Wisconsin. Their use in Connecticut and Illinois is legal with restrictions. In Illinois, in order to possess a taser or stun gun, an individual must have a valid FOID card, as is currently required for firearms. Sellers of tasers or stun guns must check the buyers FOID card and keep the record of sale for ten years, the same requirements as for firearms. When a licensed firearms dealer sells a taser or stun gun, they must request a background check of the buyer. The 24-hour waiting period required for long guns, shotguns, and rifles will also apply to taser and stun gun purchases. Further, Illinois law already prohibits stun gun and tasers from being concealed and carried. Mick, if your Chapter does decide to auction the taser, call me and I will help guide you through the legal hurdles.

Ride Safe and Free,
Rod Taylor
ABATE Legal Services

Remember, injured ABATE members pay only 28 ½% of total recovery and expenses as approved by client, consistent with and conforming to applicable state law. Elsewhere, you may pay 33 ⅓%, 40% or even 50% of your recovery. And, ABATE members are not charged for recovery of damage to your motorcycle, and have access to a 24-hour toll-free telephone number.

If you have any questions you would like to ask the lawyer, please submit them to ASK OUR LAWYER, at rodtaylor@abatelegal.com. © 2010, A.B.A.T.E. Legal Services