General

The Nature of My Practice

Throughout my career, I have represented individuals or families. I often represent the “little guy” against someone hoping to exert influence over them. Whether my case is against a large insurance company, or abusive spouse, my goal is to get them a “fresh start” and a way out of their crisis. We will stand up to bullies, but where an honorable compromise is possible, I pursue it aggressively.

About My Fees

In my family law and civil practice, we usually operate on an hourly rate. Please keep in mind, that rate reflects my expertise as a lawyer with over 30 years experience, my staff of five people, and the overhead that such an operation requires. There are less experienced attorneys, some with no staff, who appear to charge a lower rate, but, remember, you may be paying that attorney to type your pleadings, take them to the clerks office, and mail out your bills. Even at $100 to $150 per hour, that’s pretty expensive clerical pay. My most typical hourly rate is $200/hour.

More About My Fees

Many of my cases are handled on a “straight hourly rate” with a “minimum fee” for initial evaluation and file opening, and some are a “mixed” hourly rate with a “contingent” component. A typical divorce or boundary line dispute will require a retainer of $2500 to $5000, with a sum to be set aside for expenses. My minimum fee from such retainers is $1000. This pays for the file opening procedure, preliminary research, and the other benefits I provide such as discounts or payment plans. When you pay the retainer, with the minimum component, you are purchasing something worth $1000 at least. But, do not hire me just to intimidate or motivate your spouse into behaving himself or herself. If you have to do that, you are probably not going to save your marriage anyway.

Another Word on the Costs of Hiring an Attorney

I will complete $1000 worth of services at my agreed hourly rate before billing against the balance of the retainer. That retainer will initially be deposited into my “IOLTA trust account”. While I will try to complete your case for the agreed retainer, that is not always possible. I try to charge a retainer that will cover all fees and expenses more than half of the time. Our goal will be to keep at least $1000 in reserve at all times, so that I will not be forced to withdraw from your case if you run short of funds.

Another Word About Fees; Mixed Contingent and Hourly Rate

“Serious litigation”, which is likely to cost $5000 or more, sometimes has a “mixed” contingent component. I might agree not to bill beyond the $5000 unless the recovery justifies it. Or, the case may not justify a “pure contingent fee”, so I might require the $5000 up front, with a portion assigned to costs but agree to give you credit from an agreed percentage of a total recovery. These arrangements help you “manage” your risk without placing the entire risk on me. Unusual or “marginal” cases often have to be carefully “fine tuned” as to a fee that will let me make money and you have reasonable prospects for a satisfactory result. Some cases just make no sense economically, but I once had a client pay to win a case in the WV Supreme Court of Appeals over a $500 strip of land his neighbor was trying to “steal” from him.

The “Basics” of Contingency Fee Cases

Certain cases have good odds of eventually recovering something of value such as cash settlement or judgment. These include auto and truck accidents, injuries on business premises, dangerous and defective products, medical and professional malpractice, and bad faith insurance settlements. In those cases, you usually cannot afford a large cash retainer, and the attorney is willing to accept a percentage of the eventually recovery and to take a risk of a $0.00 award.

More About Contingent Fees: 10% to 40%

My contingent percentages vary from 10% to $40%. Sometimes there is a very limited amount of insurance the carrier will pay out promptly. I will sometimes take 10% of such a recovery in order to gather your medical bills, confirm clear liability and deal with your medical insurance provider’s “subrogation claim”. Most out-of-court settlements are between 20%-25% depending whether fault is questioned. If suit has to be filed, the percentage is usually 1/3 (33 1/3%); professional malpractice is often 40%, and if we need to associate with a firm strongly focused in that area of law, I will share in a part of that percentage. Costs, sometimes tens of thousands of dollars, are usually advanced by the firm taking the case.

What is Mediation… Compromise….

Mediation is part of a subject known as “alternate dispute resolution”; you probably have heard of arbitration, especially in professional sports and labor disputes. Arbitration is something “big business” and “big insurance” try to foist on the public by requiring it in all sorts of “form contracts”. The goal often is to take away your right to a jury by your peers. But, from my experience, mediation does not have a “dark side” when properly done. It works great in family matters and personal injury and civil disputes. Criminal matters: not so. I prefer mediation where each party has a lawyer trained in mediation, where the mediator is experienced, and where “everything is on the table”. When that wonderful combination occurs, and when the people, no matter how much at odds, are committed to the process, there is a very high success rate. Mediation can settle a claim for money and it can result in a compromise parenting plan where the true winners are your children. I have a trained civil and family court mediator, and I have represented hundreds of people in successful mediation.

What is Mediation and Alternate Dispute Resolution Anyway?

Mediation is part of a subject known as “alternate dispute resolution”; you probably have heard of arbitration, especially in professional sports and labor disputes. Arbitration is something “big business” and “big insurance” tries to foist on the public by requiring it in all sorts of “form contracts”. The goal often is to take away your right to a jury by your peers. But, from my experience, mediation does not have a “dark side” when properly done. It works great in family matters and personal injury and civil disputes. Not so, however, in criminal matters, where prosecution usually negotiate plea agreements without a “middle-man”. I prefer mediation where each party has a lawyer trained in mediation, where the mediator is an experienced attorney, and where “everything is on the table” and the parties address all disputed issues. When that wonderful combination occurs, and when the people, no matter how much at odds, are committed to the process, there is a very high success rate. Mediation can settle a claim for money, and it can result in a compromise parenting plan where the true winners are your children. Burton Hunter is a trained civil and family court mediator, and he has represented hundreds of people in successful mediations.

Family Law

Custody and How It Has Evolved

“Custody” is a term that has evolved over the years. At one time it meant virtual ownership of a child; in fact, the husband nearly owned the wife too! For many decades, however, there was a presumption that a young child should reside with its mother. That rule later became the “primary caretaker rule”, which required giving custody to the parent who had performed the majority of the care for the child before separation. The current rule changes “custody” into “parenting” which includes physical care, decision making and access to information about the child. At the temporary hearing the Court is to look at the percentage of “caretaking” functions performed by the parent during the year before separation, and at the final hearing, during the two years prior. The presumption for fit parents is that they will share decision making equally and each have access to medical, school and other information. The apportionment of parental time can also affect child support, so “custody battles” still exist. The ideal is for parents to put the best interest of the child first compromise their position into and agree parenting plan. The parent who is awarded greater than 70% of the overnight time often has an advantage in issues of child support and whether they can move from the state with the child.

“Parenting” and “Parenting Plans”. What do these terms mean?

What used to be called “custody” now has a broader term called “parenting”; the Family Court Rules require each parent to file a proposed parenting plan; sometimes, with or without attorneys, the parents submit an agreed parenting plan which the Court almost always approves. Surprises can await the unrepresented, since child support may be grossly different that the parties envisioned when they submitted their agreed plan. Most good parenting plans include full access to the child’s records and shared decision making on all major non-emergency decisions. Even where decision making is co-equal it is not unusual for one parent to take the lead, but they should do so with full consultation with the other parent. Of course, issues of child abuse, substance about or anger problems can mitigate against the parties being co-equal in decision making, and even whether both have full access to the child’s records.

Alimony/Spousal Support… Touchy Issues

Alimony is a “touchy subject”; women feel guilty about asking for it; men tend to hate it, and strong emotions make it a difficult subject to resolve amicably. I have found that strong attorneys and a strong mediator are a big help in getting the parties to evaluate the realities of the situation. We have an alimony statute that identifies nearly 20 factors in determining the amount and duration, that’s the length, of an alimony award. It should be no surprise that the wife of a coal mine owner, doctor, or bank president, over 50 years old, in a 30 plus year marriage, who stayed home and raised their children, is going to have a better alimony claim than a working professional with income the same or nearly the same as her spouse. Alimony may be temporary, as in a temporary divorce order, rehabilitative; for example, where one of the spouses needs to complete college, or permanent, where there is no reasonable prospect that the needy spouse can “close the gap” in their respective earning abilities, or even become self-sufficient. Factors such as age, health, work history, and length of marriage are very important.

Equitable Distribution of Assets and Debts

West Virginia’s property law appeals to “common sense”; not all divorce laws do. A legal “presumption” is something the Court is likely to “presume” without your having to prove it. The presumption is that any property acquired during the marriage by the efforts of either party is owned 50/50% by the parties. This includes retirement benefits, the family home or the family pet. The rule applies to debts also. Sometimes the person with the greater income assumes more that 50% of the debt, but they are likely to seek a credit towards the other party’s alimony or child support claims. I use a fairly sophisticated Microsoft Excel spreadsheet workbook to help my client, the other party and attorney and the Court to visualize our proposed distribution. It is a valuable tool to have when trying to prove our case, BUT you must do a diligent job filling out my worksheets, valuing your property, and finding out the balances on your debts.

Other Services; Paternity, Adoption, Grandparents Rights; What Are They?

Although approximately half of family law involves divorce, many cases do not. People often need to enforce court orders by contempt petitions or to come back to court seeking modifications of courts orders, to change child support or alimony, parenting time, or decision making, or to seek permission to move with the children to another state or prevent their former spouse from doing so. Unmarried parties can have parenting issues too, including biological paternity, whether or not a person has become a “psychological parent”, grandparents’ visitation and custody, guardianship, contested and uncontested adoption, and even a change of name. I am experienced in all these things.

Personal Injury

Elements of Personal Injury Damages… What Are They?

A personal injury can be a broken leg, torn muscles in a neck, or a serious brain injury. Ascertaining the value of a claim can be a complex undertaking. First, since WV is a “comparative fault” state, we must determine if the potential client’s fault is less than the other party. If not, the other party is not liable. Assuming the other party’s fault is greater that 50%, the question is always HOW MUCH greater! Claims often hinge on the value of reasonable medical “special damages”, but, diagnostic tests that turn out negative generate fewer addition damages than when the tests are positive for permanent injury or are treatment related, such as physical therapy. Generally your claim will be for pain and suffering, mental anguish and worry; loss of enjoyment of life, temporary and permanent impairment, disfigurement, medical expenses, lost wages and benefits, and disfigurement. In a wrongful death case, damages can include the loss of the decedent’s income for life, and for married couples, the “non-injured” spouse may have a claim for loss of services.

What Are the Various Insurance Claims?

Our legislature, in its wisdom, did away with lawsuits over “third party bad faith” claims. Formerly, if you could prove “malice” or a pattern of behavior in one or many cases, a claimant could recover against the other party’s insurance company, even above their provable damages, but now you are limited to complaints to a consumer attorney working under the auspices of the state insurance commissioner. However, you still may file a claim against your own insurance company for cheating you, through negligence OR malice. If your can prove they knew they owed the claim and intentionally cheated you, you can even recover “punitive damages”. Even without malice, you may recover for your attorney fees and aggravation and inconvenience in addition to your policy claims, so don’t hesitate to call your attorney when your have a loss to your house, your car, or a claim against you by an injured third party.

Underinsured and Uninsured Auto Insurance Coverages, and “Personal Umbrella Coverage”… Three Kinds That Many People Do Not Understand

There is a great deal of ignorance about three types of insurance coverage, “underinsured claims”, “uninsured claims, and “claims under a personal umbrella”. This FAQ will just “scratch the surface”. Underinsurance and uninsurance are purchased so you can file a claim against your own insurer if the person who “injures” you did not have enough insurance, or had no liability insurance, and a “personal umbrella” can provide you liability and underinsurance coverage over and above all other insurance, typically for a million dollars or more! When you purchase an “umbrella”, you must carefully review, and often upgrade, all of your underlying coverages. Without proper coverage limits, you might lose the coverage you thought you had. Sometimes it is your insurance company’s fault when you do not have the coverages. Some coverages must be offered to you, and you might get them anyway if the insurance agent forgot to offer it, so always consult your attorney when such questions arise.

Civil Actions and Expert Witnesses

What is So ‘Civil’ About Civil Actions?

A “civil” suit is not necessarily a “polite” suit, any more than “civil war” is non violent. The DK Oxford Illustrated Dictionary defines “civil law” as the law pertaining to “personal rights” as opposed, for example, to “criminal law”, which is brought on behalf of the public, or “the state” by a public prosecutor, or “constitutional rights” as defined by our state or U.S. Constitution. Civil claims or suits include family court matters, but I refer to “civil suits” when I talk about contract disputes between persons or businesses, boundary line and right of way disputes, suits over wills and estates, and suits over alleged libel or slander. Of course, “civil claims” also include claims for personal injury and professional malpractice, which I cover under “contingent fees”. Civil suits as I define them are usually handled on an hourly basis with an “up front” cash retainer.

Expert Witnesses; Who Are They, When Are They Used, and How Do I Find One?

Your trial attorney can advise you when an “expert” is needed. It might be a forensic economist to value a small business or professional practice in a divorce, an engineer to reconstruct an auto accident or defective house, or a board certified physician in a medical malpractice case. Burton Hunter, as an active member of the WV Association for Justice, and long time member of its board of governors, maintains contacts throughout the state with highly qualified individuals who can serve as expert witnesses, or guide him to outstanding experts, in every field. He also keeps on file dozens of mailings he gets every year from companies who can provide experts in hundreds of fields.

Technology and Continuing Legal Education

Continuing Legal Education and Maintaining Currency in Technology
West Virginia’s State Bar Rules require 24 hours of continuing legal education every two years. I have found a need to attend at least triple that requirement. It is not cheap, but any attorney must keep abreast of new technology, methods for running an orderly office, and the subject areas of his or her practice. In my opinion too many lawyers get into ruts, doing things as they always have done them, and letting progress pass them by. I prefer to think of new approaches, to conform my practice to the best technology, especially computers and their peripheral devises, to learn good management techniques, and to know of the changes in the law. It one case, I was able to increase the settlement value of my case by over $100,000.00 by learning of a recent case just two days before our big settlement meeting. The fee in that case paid for a lifetime of C.L.E. seminars.