16 Nov

Why Should I Hire A Personal Injury Lawyer?

Why Should I Hire a Personal Injury LawyerAfter an accident, you may question whether you need a lawyer. In this post, San Diego personal injury attorney Curtis shares his insights on the reasons why you should consider seeking legal representation. For the past 15 years, Mr. Quay has successfully handled thousands of personal injury cases. He understands the common pitfalls that unrepresented parties are likely to face and how an attorney can help you avoid them. Find out more below.

For many victims, the days, weeks, and months following a serious accident are extremely tumultuous periods. The constant and chronic pain from their injuries makes it difficult, or even impossible, to go to work, take care of household responsibilities, and generally live life. Meanwhile, unpaid medical and other bills start to mount up, because there is no money coming in to pay them.

All this time, insurance adjusters or lawyers call at least weekly to induce victims into signing settlement papers. Deep down, victims know that insurance companies want what is best for their policyholders and stockholders as opposed to what is best for injury victims, but they really have no idea whether or not the settlement offer is fair. Nevertheless, with everything going on, it is tempting to sign the paper and just try to move on. You may even be told that it’s not worth it to hire an attorney, as they could take up to half of your recovery. This might leave you wondering, “Why should I hire a personal injury lawyer?”

Fortunately, an experienced attorney can address all these issues and more. That’s because in addition to a zealous advocate and a strong voice, an attorney gives solid legal advice that victims and their families can rely on as they seek to rebuild their lives.

1. Medical Issues

Almost any practitioner can deal with some car crash injuries, like broken bones and serious lacerations. However, many other injuries are unique to car crashes. Whiplash is a good example. This degenerative muscle condition usually starts when a patient is thrown forward and the neck violently snaps back, and that action is almost exactly what happens to most car crash victims. Even if they are properly restrained, the laws of physics still propel their bodies forward, and then they pop back into sitting positions; all this usually happens in under a second.

Because it is a soft tissue injury, whiplash often does not show up on X-rays or other diagnostic tests. Furthermore, the victims may not experience much pain, at least initially. But even if the non-expert doctors cannot find anything wrong and the victims feel fine, whiplash has probably already set in.

Contrary to popular myth, whiplash and other soft tissue injuries are not made-up conditions that greedy lawyers use to artificially inflate the settlement value of personal injury cases. They are real conditions with real consequences that, without proper treatment, may eventually become disabling.

Experienced accident attorneys can connect victims with physicians that specialize in treating personal injuries, so they can get the treatment and therapy they need. In most cases, and this point is discussed below, the victims have no out-of-pocket charges.

During settlement negotiations, insurance companies routinely challenge these expenses as not medically necessary, largely because whiplash has a bad reputation in some quarters and the injury is not easy to diagnose. An attorney is a powerful advocate in these cases.

2. Financial Issues

Letters of protection are powerful tools in personal injury cases, and only attorneys can utilize them.

Many times, medical bills are the largest single item in personal injury cases. Emergency care hospitalization often costs thousands of dollars per day; follow-up medical care and physical therapy adds thousands more. Additionally, there are medical devices, prescription drugs, and countless other items.

To make matters worse, many health insurance policies do not cover motor vehicle crash (MVC) injuries and expenses, mainly for liability purposes. As mentioned earlier, since there is little or no money coming in, victims are often unable to even make partial payments.

Letters of protection inform third-party medical providers that lawsuits may be filed and that they will be paid from the proceeds of a future settlement or judgment. When funds become available, attorneys can negotiate with these providers to pay less than face value for these bills, which means that more of the settlement funds find their way into victims’ pockets.

3. HIGHER SETTLEMENTS

97 percent of civil matters — including personal injury cases — settle out-of-court; many of these cases settle before a lawsuit is even filed. But before anyone signs anything, an attorney must determine the case’s settlement value, and an experienced lawyer is in the best position to calculate this number.

Calculating a settlement value is partly science and partly art. The costs, like property damage, medical bills, and lost wages, are relatively easy to determine. The subjective part come in determining what amount of money a jury in that jurisdiction would award an injury victim in that condition. The lawyer’s ability counts here as well, because an aggressive and effective attorney can present a case in a much more compelling fashion than any other lawyer.

Why Hiring A Personal Injury Attorney Should Be  A Top Priority

In personal injury cases, as in many other endeavors, a fast start is essential. The sooner that attorneys start collecting evidence and refer their clients to medical specialists, the higher the ultimate recovery often turns out to be.

Victims can help themselves by reaching out to lawyers as soon as possible after the crash. At that point, an attorney can start building a case, deal with the insurance company, and get victims the attention they need, so they have the confidence and peace of mind they need to focus on their recoveries.

22 Oct

What Is Negligence?

Stamp that is used by a notary public with his pen. Themis with scales of justice in the background

More and more people and groups are questioning the phrase “car accidents.” Planes crash, trains wreck, ships sink, so why should cars be involved in accidents? To be sure, most car crashes are accidental to the extent that they are unintentional. But one of the dictionary definitions of “accident” is “an event that happens by chance or that is without apparent or deliberate cause,” with synonyms like “coincidence, mere chance, and twist of fate.” In most car crashes, someone is clearly at fault, so this definition is inappropriate.

We all make mistakes, and when we make mistakes, we must take steps to make things right again. That principle is the underpinning of negligence law. In court, what does the victim need to prove to obtain monetary compensation that makes things right?

Burden of Proof

Many people remember the double murder saga of former USC and NFL standout O.J. Simpson during the 1990s. After a lengthy trial, a criminal jury decided that Mr. Simpson was not guilty of the crimes he allegedly committed. Yet in a later proceeding, a civil jury determined that he was responsible for the deaths and ordered Mr. Simpson to pay $33.5 million. How could two different juries look at essentially the same evidence and make two opposite conclusions?

In criminal court, the prosecutor must prove guilt beyond a reasonable doubt. Definitions vary by jurisdiction, but essentially, the state must present such overwhelming evidence that there is no reasonable explanation other than guilt. However, in civil court, the plaintiff must only establish liability by a preponderance of the evidence, which means more likely than not. If there are two equally-full water glasses on a table and a person adds an eyedropper full of liquid to the glass on the left, it contains more liquid than the glass on the right, and that is a picture of preponderance of the evidence.

In most negligence cases, the plaintiff must establish four elements, each by a preponderance of the evidence.

Duty

California and Nevada typically impose a duty of reasonable care in these situations. This legal responsibility comes from the 1932 English case of Donoghue v. Stevenson. At the time, there were essentially no negligence laws in either the United States or the United Kingdom. In this colorful yet also rather nauseating case, Ms. Donoghue’s friend bought her a bottle of ginger beer at a local cafe. As she emptied the contents, she discovered a dead and decomposed snail at the bottom of the bottle. Ordinarily, Ms. Donoghue could have sued for damages under contract law, but since she did not buy the beer, she relied on the then-novel theory that the beer bottler had a duty to sell bottles of beer that did not contain dead animals.

In deciding the case in favor of Ms. Donoghue and against the beer bottler Mr. Stevenson, Lord Atkin articulated the “neighbour principle:”

The rule that you are to love your neighbour becomes in law you must not injure your neighbour. . . .You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who then in law is my neighbour? The answer seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected.

The neighbour principle made its way into American law, and became the duty of reasonable care.

A higher duty applies in some situations. For example, in both Nevada and California, truck drivers, taxi drivers, Uber drivers, and other commercial operators are common carriers. These drivers have a higher duty of care with regard to the goods and/or passengers they transport from one point to another. Essentially, while the duty of reasonable care requires drivers to avoid crashes if possible, common carriers must take affirmative steps to ensure that their passengers arrive safely.

Breach

Duty is a legal question, and breach (violation) is a fact question. One way to breach the duty of care is to violate a traffic law, like speeding or making an illegal lane change. Drivers who are impaired by alcohol, drugs, or fatigue may also breach their duties of care, especially if they are common carriers.

Since this is a fact question, the jury must conclude that, by a preponderance of the evidence, the behavior was serious enough to breach the duty of care. For example, adjusting the radio is technically distracted driving, because drivers take their eyes off the road, take their minds off driving, and take at least one hand off the wheel while fiddling with the radio. However, such behavior may not constitute a breach of duty, in the minds of many jurors.

Cause

The third element is both a fact and legal question. Lawyers sometimes refer to the factual component as “but-for causation,” as in the crash would not have happened “but for” the tortfeasor’s (negligent driver’s) action or inaction.

Legally, the plaintiff’s damages must be a foreseeable result of the tortfeasor’s conduct. Most courts in both Nevada and California use the majority rule from 1928’s Paslgraf v. Long Island Railroad. In that case, a court determined that negligent railroad workers were not responsible for an injury that took place on the other side of the train platform, because the link between a man dropping a package of fireworks and scales toppling over because of the shock wave was too indirect. A few courts use the more-inclusive “zone of danger” test, and in these jurisdictions, bystander cases are a bit easier to win.

Damages

The plaintiff must sustain a physical personal injury, such as a broken bone or a brain injury, or property damage, such as a banged-up car, to satisfy this element. If there is a tangible injury, the plaintiff is also entitled to compensation for intangible losses, such as pain and suffering, loss of enjoyment in life, emotional distress, and loss of consortium (companionship). In some cases, additional punitive damages may be available.

14 Oct

Liability

Definition of liability emphasized by a magnifying glass

In a few cases, fault in a car crash is rather easy to establish. For example, if Debra Defendant is talking on her cellphone while driving her own vehicle on her own time when she rear-ends Paula Plaintiff, who is stopped in traffic and waiting at a red light, Debra is clearly at fault and clearly responsible for Paula’s damages.

But assume Paula pulled out in front of Debra in traffic and Debra rear-ended Paula. Who is at fault in that scenario? Or assume Debra was hauling goods for XYZ Company in a delivery truck when she hit Paula. Who is responsible for damages in that scenario?

Liability is a two-part inquiry. First, the responsible party, or responsible parties, must be identified. Second, the appropriate party, or parties, must pay damages.

First Party Liability in Car Crashes

The crash between Debra and Paula did not happen by chance or by accident. Most likely, the choices both parties made in the hours, minutes, and moments before the collision caused the wreck.

Decisional liability has to do with the choices made, or not made, before operators start driving. Typically, these decisions revolve around the three types of impairment. Although the sources (alcohol, drugs, and fatigue) are very different, the effects are quite similar.

In most cases, drivers are alcohol-impaired after only one drink. Alcohol is an antidepressant, so people who drink nearly always experience a sense of release and euphoria. When it comes to driving, this feeling of euphoria often means that operators are slower to recognize dangerous situations and more willing to push the envelope in terms of their driving habits. That extra few ticks on the speedometer or half-second delay before tapping the brakes can mean the difference between a safe drive home and a serious injury collision. There are also physical symptoms, such as blurred vision and slower reaction times, that are extremely dangerous when operating heavy machinery, including motor vehicles.

Contrary to popular myth, much drugged driving results from abuse of prescription and over-the-counter medications. Many painkillers and antidepressants are very powerful and have serious side-effects even when patients take them exactly as directed. Taking too many pills, or taking pills while not under a doctor’s care, can be even worse. Similarly, many over-the-counter sleep aids and other medicines have active ingredients that required prescriptions just  few years ago.

Fatigued drivers have many of the same issues as drugged and drunk drivers. In fact, driving after eighteen consecutive waking hours is like driving with a .08 BAC, which is above the legal limit in both Nevada and California. Moreover, most of the tips and tricks that observers once suggested, like turning up the radio volume, may make drivers feel more alert for a few minutes, but the effect quickly passes. Also, these tricks do nothing to remedy the impaired judgement and motor skills associated with fatigued driving.

Behavioral liability, or the choices that drivers make just before the crash, is the second liability area. Typically, behavioral liability is associated with motor vehicle code violations, like speeding, illegal lane changes, ignoring traffic control devices, and the like. Distracted driving is also a serious issue, which is why California lawmakers recently expanded the cellphone ban. Previously, the ban only applied to talking or texting; the amended VC 23123.5, which takes effect January 1, makes it illegal to “use or hold” a cellphone or other electronic device.

Finally, there is environmental liability. Many drivers fail to adjust to adverse conditions, like rain or darkness, by slowing down and driving more carefully. Additionally, although it is easier to drive on familiar streets than unfamiliar ones, many drivers do not acknowledge or appreciate the difference.

In most car crash cases, the insurance company tries to shift blame to the victim, to reduce or deny recovery. Contributory negligence is one of the most common arguments. To return to the previous example, assume Paula made an illegal lane change, and Debra — who was speeding — rear-ended her. In cases like this, the juries must apportion fault on a percentage basis.

California is a pure comparative fault state that divides liability based solely on the percentage of fault. Assume the damages were $100,000 and the jury splits fault 50-50. In California, Paula would receive $50,000. But if the same crash and same result occurred in Nevada, Paula would get nothing. That’s because the Silver State is a modified comparative fault state with a 51 percent bar. So, if the defendant’s liability is not at least 51 percent, the plaintiff is ineligible for recovery.

Third Party Liability in Crash Cases

Many states have dram shop laws that hold commercial alcohol providers liable for damages if their intoxicated patrons later injure someone. But Nevada has never had a dram shop law and California legislators recently did away with the Golden State’s version of that law.

Other third party liability theories may apply, such as respondeat superior (“let the master answer”). In a nutshell, if the tortfeasor (negligent driver) was an employee acting within the course and scope of employment at the time of the crash, the employer is at least partially responsible for the victim’s damages. All the relevant terms are defined in broad and plaintiff-friendly terms.

Third party liability is often important because so many drivers are under-insured. Nevada has one of the lowest minimum auto insurance policy requirements in the country, and California’s requirements are not much higher. While it is relatively easy to collect damages from insurance companies, it is difficult, but not impossible, to collect from individuals.