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Frequently Asked Questions

Sachs & Hess is an Indiana law firm with its office in Schererville/Saint John.  Our lawyers focus their practice on personal injury, traffic and other violations, family law, medical malpractice, and workers compensation cases. Clients often have questions in the following legal areas, and we do our best to answer them:

Frequently Asked Questions—Personal Injury Cases

Frequently Asked Questions—Traffic & Other Violations

Frequently Asked Questions—Family Law

Frequently Asked Questions—Workers' Compensation

 

Frequently Asked Questions—Personal Injury Cases

Discuss your legal concerns

Discuss your Personal Injury concerns in a private consultation at no obligation. Getting a legal opinion can help you avoid further problems and provide you with information to make the right decisions. Whatever your legal matter, call our Indiana general practice firm at 219-365-3333 or contact Sachs & Hess, PC online today.

If I am involved in an accident and have some pain, do I need to go to the doctor or emergency room right away, and if I don’t, does it hurt my case?

If your pain is strong enough that you believe medical attention is necessary, then you should absolutely go to the emergency room. Sometimes, especially with soft tissue injuries, the pain doesn’t develop until alter. It is common for people to see their doctor later in the day or the next day when they start to feel the pain.

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Should I give a statement to the insurance company?
You should always cooperate with your own insurance company; however, we would never suggest that anyone give a statement to the opposing insurance company without consulting with a lawyer. The reasons are the other person’s insurance company has their insured’s version of the accident as well as an accident report. In certain cases, we may allow insurance adjusters to take a recorded statement from our client, but only if we are present.

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Is the other driver's insurance company responsible to pay my medical bills?
No, not directly. The only thing that you, on your own, or an attorney is going to obtain from the other driver's insurance company is ultimately a lump sum of money by way of settlement, or a judgment after a trial of your case for all of your damages, including the injury; the medical bills incurred; the pain and suffering; lost time from work; lost wages; and potentially loss of consortium of a spouse. In this regard, we advise clients to utilize their own automobile insurance coverage for medical payments to the extent of its limits and whatever health insurance they have as a primary/secondary carrier to cover all medical bills.

This insures the bills are paid now as opposed to not paid until the case is settled, which can result in credit problems.

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What if the other person involved in the automobile accident does not have insurance?
In the State of Indiana, if the other person does not have insurance, it is likely that you or the driver of the car you are in will have uninsured and underinsured motorist coverage to the same extent of their own liability coverage. Uninsured motorist coverage is provided to protect you in just that type of situation: when you are involved in accident with someone else that person does not have insurance. Your lawyer will ultimately resolve the case for a lump sum of money with your insurance company. Your insurance company will pay the damages up to the extent of your coverage by settlement or trial.

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What if the police officer says it was partially my fault, or I think it was partially my fault? Does this preclude me from recovering for my injuries and damages?
It is up to the judge or jury to decide, not the police officer, how much you are entitled. Indiana has a comparative fault law with regard to negligence accidents. Your damages are reduced by your percentage of fault. In other words, if you were determined by the jury to be 15% at fault, then the amount of your damages are reduced by 15%. The only time you would not be able to recover is if the fault assessed to you is 51% or more.

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If I fall on somebody’s property, are they automatically required to pay me money or pay my medical bills?
No. The only way you can collect money for an injury that occurred on someone’s property for damages is if the owner of the property is somehow negligent in causing the injury. If the property owner has insurance coverage which includes medical pay, you may collect the medical pay to reimburse you for your medical bills or to pay your medical bills to the extent of the coverage or limits of that policy. These amounts are usually low, sometimes being only $1,000 to $5,000.

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Do I need a lawyer in any person injury case?
That is a personal choice you have to make. The law can be complex and confusing, especially to a non-lawyer. For instance, in the case of any claim against a governmental agency (city, state, county, school, etc.) there is a Tort Claim Notice requirement that must be served within a certain amount of time, the shortest of which is 180 days. Most non-lawyers are not aware of this requirement and if it is not met, your claim will fail. We, of course, as a firm which has been handling this type of case for over fifty years, believe we can present your case for compensation for your injuries better than individuals can for themselves. The quicker you hire an attorney, the quicker that attorney can start working on the case as fast as the other side’s insurance company’s attorney or representatives.

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How will I pay the attorney?
Most personal injury cases are handled on a contingent fee basis. The attorney is paid a percentage of the recovery so there are no attorney fees unless there is a settlement or recovery at trial. Indiana requires that contingency fee agreements be in writing.

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How long do I have to hire an attorney after an accident?
In Indiana, the statute of limitations for personal injury cases is generally two years from the date of the accident. There are certain exceptions that extend the time, but they are very limited. Obviously, depending on the complexity of how the injury happened, a lawyer needs sufficient time to investigate and determine who the proper parties are to sue. In short, as soon as you think you need an attorney for your injury case, you should hire one right away.

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How do I know which attorney to hire?
You can certainly talk to friends and acquaintances regarding the reputation of lawyers in your area regarding certain types of cases. While the yellow pages are available to indicate, through advertising, what type of cases different firms handle, a better source is Martindale-Hubbell, which has a website that is accessible where lawyers are actually rated by their peers. An AV rating is the highest rating that a lawyer can have for his or her skill and knowledge of the law, and honesty and integrity. Certainly, many firms, as this one does, now have websites to provide additional information regarding the firm and the lawyers in it.

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Frequently Asked Questions—Traffic & Other Violations

 What should I do if I am arrested?

  1. The Constitution of the United States, as well as the State of Indiana, guarantees you a right to counsel, so take advantage of it. It is essential that you assert your right to an attorney before making any statements to any law enforcement agency, or signing any documents produced by a law enforcement agency with the exception of a traffic ticket.
  2. Never consent to the search of an automobile, home dwelling, person (with the exception of a pat down search for the officer’s safety), purse, or any other item without enforcing your right to speak to an attorney first. Even if you believe the officer may have a right to search, or will search regardless of your consent, be sure to voice your objection. Police officers often depend on your willingness to please them in order to obtain consent.
  3. Once consent is given, the officer will have a right to search even if he otherwise would not. If consent is given, you still have the right to revoke your consent. The Implied Consent Law requires you to submit to blood alcohol tests or face the loss of your license as a result of an automatic one year suspension for failing to comply with the law. The Implied Consent Law is mandatory, and you do not have a right to speak to a lawyer before submitting to, or being asked to submit to the test.
  4. If arrested, always be cooperative with the police officer. Failure to cooperate with the officer, whose primary concern is his own personal safety, could result in resisting law enforcement charge or disorderly conduct charges, which can only add to your costs and potential penalty. Being cooperative does not mean giving the officer any statements or admissions or consent to search without talking to your attorney.

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 What not to do if you are arrested.

  1. Do not speak in detail about the facts of the case with anyone except your attorney.

    Only speak when instructed to speak by your attorney. More often than not, statements given outside the presence of an attorney only assist the police and the State of Indiana in making their case against you.

  2. Never submit to any type of handwriting, hair, fingernail, blood, urine, polygraph, or other examination without first speaking to any attorney. In addition, never agree to submit to a line up or any other identification process without first consulting an attorney.
  3. Under Indiana law, you are not required to take field sobriety tests, so don’t take them. Anybody who has attempted a field sobriety test sober would fail them more often than not, so there is no point in taking them. A field sobriety test is not required under the Indiana Implied Consent Law and a police officer cannot compel you to take one.

  4. Under the Indiana Implied Consent Law, you are not required to take an Alco-Sensor or portable breath test. These are devices that police officers carry in their cars and submit to people suspected of driving under the influence. These devices give a preliminary reading, which may or may not be accurate concerning the alcohol level within one’s system. The results of the Alco-Sensor or portable breath test are not admissible in court. As such, there is no reason to take one. If an officer requests that you take an Alco-Sensor or breath test, simply respond that you will agree to take a B.A.C. test at the police station, but you will not take a portable test in the field.

    The only test covered by the Indiana Implied Consent Law are those tests concerning breath (only a test as approved by the Indiana University Department of Toxicology), urine, or blood test.

  5. If you find yourself being asked questions and you have not been read your Miranda Rights, ask if you are free to leave. Police will often not read the Miranda Rights in a situation under the pretense that you are not in custody. However, they will still attempt to use your statements against you. If you are free to leave, do so.

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 What is an O.W.I?
O.W.I. stands for Operating While Intoxicated. A person who is charged with Operating While Intoxicated is his/her blood/alcohol content (B.A.C.) Is .08% or greater. Operating While Intoxicated does not require that a person be driving a vehicle while intoxicated, but simply that a person be in control of the vehicle at the time that the arrest is being made.

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 What are the penalties for Operating While Intoxicated?
Penalties vary based upon the level of offense in which you are charged. Offense levels can range anywhere from a Class “C” Misdemeanor all the way up to a Class “D” Felony. The fine can range from $500 to $10,000, with imprisonment from 60 days to 8 years. In addition to penalties set forth above, license suspensions are involved, ranging from 90 days up to 2 years. If may be possible to obtain a restricted license during a period of suspension.

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 If this is a first offense, do I really need a lawyer?
There is an old saying that goes something along the lines of “Only a Fool Represents Himself.” There is a lot of wisdom in that saying. If a person had a heart condition, they certainly wouldn’t try to treat it on their own. Attorneys are trained in dealing with and handling Operating While Intoxicated cases. In a first offense for Operating While Intoxicated, it is essential that an attorney be involved because of the possible future problems associated with a conviction for Operating While Intoxicated. If a person is convicted of Operating While Intoxicated and then gets another Operating While Intoxicated conviction within the next 5 years, the second offense would be charged as a Class “D” Felony, increasing the possible sanctions and penalties involved.

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 What is an H.T.V.?
H.T.V. is short for Habitual Traffic Violator. A person can be determined to be a Habitual Traffic Violator under two scenarios. Under the first scenario, if a person has 3 major offenses within a 10 year period, he can be found by the Bureau of Motor Vehicles to be a Habitual Traffic Violator and his/her license suspended for 10 years. Major offenses can include Operating While Intoxicated, Reckless Driving, Leaving the Scene of an Accident with Property Damage in Excess of $200 and other such offenses. Under the second scenario, if a person has 9 minor offenses and 1 major offense within a 10 year period, he, too, can be determined to be a Habitual Traffic Violator, losing his license with a 10 year suspension. Under either scenario, a person would not be eligible for any type of restricted or probationary license until after 5 years of the suspension has been served.

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 How much would it cost for representation?
The cost for representation for an Operating While Intoxicated case will vary based upon the years of experience of the lawyer handling the case, whether or not it is a first offense, whether the case would be handled by Plea Agreement or submitted to the court for trial.

Lawyers handle these cases on a flat fee basis. In the cases to be tried, an hourly rate may be imposed. The fees should and will be discussed with your attorney. It should be pointed out that if you post a bond upon arrest, you may use the bond to pay a portion of your attorney fees. If you have a bond, you should also disclose that to your attorney for purpose of negotiating your fee arrangement.

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Frequently Asked Questions—Family Law

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 How long will the divorce take from the beginning to end?
Indiana’s dissolution of marriage law requires a waiting period of 60 days from the date of the Petition for Dissolution of Marriage is filed with the Clerk’s office until there can be a final Decree of Dissolution of Marriage. Based upon Indiana law, the shortest length of time a divorce can take is 60 days. Most divorces will take longer than 60 days, as it takes time to gather information concerning the assets and debts of the marriage. If child custody is in dispute, the process can be quite lengthy, sometimes taking up to a year or more. Therefore, depending on the complexity of the case, the time from the date of filing until the conclusion varies greatly.

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 What are the different types of custody?
In Indiana, there are several terms which are commonly used to describe custody of the children. JOINT LEGAL CUSTODY is when both the mother and father each have an equal say in 3 areas affecting the children, namely, the religious upbringing, education and healthcare choices. There is also JOINT PHYSICAL CUSTODY which generally assumes the children will spend an approximately equal amount of time with each parent. PHYSICAL CUSTODY is when the children primarily reside with one parent and the other parent exercises parenting time pursuant to either an agreement of the parties and/or court Order. Indiana has enacted Parenting Time Guidelines which the courts look to for assistance in determining the amount of parenting time, if the parties are unable to agree. Physical custody and legal custody can be combined in different ways:

  1. The parties can share joint physical and legal custody of the children, which means that the children spend equal time at which of the parent’s home, and the parents still consult one another when making decisions about education, healthcare and religion for the children.
  2. One party can have physical custody of the child, with both parties sharing joint legal custody, which means the child continues to live primarily with one of the parents, but the parents still consult each other and make joint decisions with regard to education, healthcare and religion
  3. One party can have physical and legal custody of the child, which means the child primarily lives with one parent and that parent makes all the decisions concerning education, healthcare and religion.

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 Is Indiana a 50/50 state?
An equal division of the marital assets is presumed to be a fair distribution. However, there are other factors the court is required to consider to determine whether or not it should deviate from an equal division of the assets.

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 If I vacate my home prior to filing for divorce, can I be charged with abandonment?
No. Indiana is a no-fault divorce state. This means that in order to get a divorce in this state, you do not have to prove to the court that either the husband or the wife is to blame for the breakdown of the marriage. Therefore, terms such as abandonment are no longer used. However, there are other considerations before you should leave or abandon your home.

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 If my child(ren) do not live with me, what type of visitation will I be entitled to?
In Indiana visitation is called “parenting time.” The type of parenting time a non-custodial parent will have is generally governed by the Indiana Parenting Time Guidelines, as set out by the Indiana Supreme Court. The parties are not bound by these guidelines, but are free to arrange any type of parenting time arrangements that works for their specific situation. However, if the parties cannot agree on a parenting time arrangement, the court will generally follow the Indiana Parenting Time Guidelines.>/p>

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 Will I have to testify in court?
Not necessarily. Many divorces are settled between the parties without going to court. Sometimes, either some or all of the issues cannot be resolved between the parties and their attorneys. When this happens, a court hearing will be scheduled and testimony will be presented to a judge so that a decision can be made with regards to the issues the parties could not work out.

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 If my spouse and I cannot agree on who will have custody of the children, what happens?
When custody is in dispute between the parties, a custodial evaluator is usually appointed by the judge. A custodial evaluator is a person who is either a social worker or a psychologist who interview the parties, the children, and any other relevant witnesses. Once the evaluation is complete, a report is submitted to the judge for review. The judge may use this evaluation report, in addition to other evidence that the parties present, to help make a determination as to where the children should live. In addition, the court may appoint a guardian ad litem to represent the children’s interest.

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 How much child support will I receive or pay?
Child support is usually dependent upon the gross weekly income of both parents, taking into consideration such things as: work-related child care, health insurance premiums and the number of overnights the children spend with each parent. Child support is determined using a formula created by the Indiana Supreme Court called the Indiana Child Support Guidelines. Child support is usually paid by way of an Income Wage Withholding Order. This means the child support is withheld form the support payer’s paycheck, processed by the state, and is then forwarded to the custodial parent. If you would like to run a Child Support Worksheet, click on the link provided on our website which will take you directly to the Indiana Supreme Court’s website where you can use the on-line Child Support Calculator.

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 If I do not have custody of my children, am I entitled to have access to their school and medical records?
Yes. Parents, regardless of their custodial standing, care entitled to have full access to their child’s school and medical records, unless otherwise ordered by a court. Sometimes schools and/or medical practitioners are hesitant in giving information to a non-custodial parent, and generally a quick telephone call from that parent’s attorney will resolve the situation.

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 How much will the divorce cost?
The cost of a divorce will vary in each case and will depend upon the parties, the issues and how much each party wants to litigate the matter. The more the parties can agree upon, the less need for attorneys and, therefore, lower attorney fee costs. However, the more the parties disagree, especially with regards to child custody, the more a divorce will cost. Other factors such as complex assets and or debts, or issues that need more involved investigation, will affect the cost of the divorce. In addition to attorney fees, there may also be expenses for custodial evaluations, home appraisals, pension evaluations, and other expert opinions as to asset values.

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 Do I need to have my own attorney to represent me in the divorce or can I use my spouse’s attorney?
Pursuant to the Rules of Professional Conduct, one attorney cannot represent both parties in a divorce action. It is not required that you have your own attorney to represent you in a divorce action and it is possible for one attorney to draft a final settlement agreement for both parties to sign. Be aware, that the job of an attorney is merely to protect the interest of his/her own client and is not to protect the party without counsel. It is your choice whether or not you hire your own attorney, but it is strongly recommended that each party retain counsel.

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Frequently Asked Questions—Workers’ Compensation

What is workers' compensation?
In Indiana, the Workers’ Compensation Board has exclusive jurisdiction to hear claims for personal injury or death by accident arising out of and in the course of employment. Therefore, you cannot sue your employer for any injury you received on the job and recovery will be at the control of the Workers’ Compensation Board, unless a person or corporation outside of your employment is responsible for your injury. That is considered a third-party claim, which will be discussed later.

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What do I do if I get injured on the job?
One of the first and most important things that should be done is to make sure that your employer, preferably a supervisor or manager, is aware of your injury and how the injury occurred immediately after you were injured. The next step would be to discuss with your employer where you should go for your medical treatment.

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What is considered an injury or death arising out of and in the course of employment?
This question is usually easy to answer if you are on the premises of your employer when you are injured. However, the question becomes a little bit more difficult when you are outside of the premises. If you are “on the job” and off the premises, you may still receive Workers’ compensation benefits. It is even possible to receive Workers’ compensation benefits if you are going to or coming from your job.

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What do I receive as my workers’ compensation benefits?
If you miss seven or more working days due to your injury, you will receive Temporary Total Disability (TDD) benefits which are your wages. You will receive 2/3 of your average wage over the last 52 weeks. Your employer will also be responsible for paying your medical bills for any treatment you receive. However, due to the fact that the employer is paying your medical bills, they will likely control the doctor or medical provider that you see for your injuries. If a doctor feels you have received any type of serious impairment due to your injury on the job, you may also receive a lump sum settlement after the doctor releases you from his/her care.

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Can I receive pain and suffering for my injuries?
No. If you are injured on the job, not by a third-party, you are eligible only for a portion of your lost wages, your medical treatment, and settlement for any serious impairment.

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What is a third-party claim?
If someone is injured or killed by accident which arose out of and was in the course of your employment and the injury or death was caused by a party that is not a co-employee or your employer, you may be able to sue the party under a third-party claim. This claim would not be under the jurisdiction of the Workers’ Compensation Board and you may receive additional damages from that third party.

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What if I am totally and permanently disabled as a result of the injury?
If you are permanently and totally disabled as a result of your injury arising out of and in the course of your employment, you may be able to receive higher damages to compensate you for the seriousness of your injury.

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Do I have to see the doctor or medical facility that my employer is demanding that I see?
Due to the fact that your employer is paying for your medical treatment, they can somewhat control with which provider, doctor, or medical facility you treat. However, you may be able to get an independent medical examination through the Workers’ Compensation Board or a second opinion from a doctor of your choosing; however, this requires approval by the Workers’ Compensation Board.

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What if my company or the workers’ compensation insurance company is not paying my medical bills and I get a bill from the healthcare provider?
You should notify your attorney immediately. There is a statute in the State of Indiana that if the medical expenses were incurred as a result of a work injury, then the medical facility cannot proceed to collect against the individual. They must file what is called a provider’s claim with the Workers’ Compensation Board or submit their claim to the workers’ compensation insurance company. In other words, there is some protection in terms of the potential damage to your credit if there is some dispute on your workers’ compensation case or some delay in paying the medical bills on the part of the insurance company. This statute protects you in these circumstances.

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Do I need an attorney?
Initially, if your employer is paying your wages as described above, and is paying for your medical treatment, it is probably not necessary that you employ an attorney to help you in the matter. However if at any time you disagree with any treatment you are receiving, any evaluation given to you by the doctor, if your employer is not paying the medical bills appropriately, or if you feel that you are being taken advantage of, it is probably necessary that you retain an attorney to help you.

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