MALIS|LAW has obtained $487,500 for a hospital worker who injured her neck and shoulder when a hospital window tilted inward and fell on her.  We were able to obtain a settlement from the window manufacturer, designer, and three installation companies who worked on the window based on negligent design, manufacture and installation of the window even though the hospital had discarded the window, therefore throwing out the best proof of how the accident happened.

My client, a 41 year old inventory assistant, was opening a window in an employee break room when the window sash (the part we normally think of as ‘the window frame’) flew up out of her hands, fell inwards and struck her a glancing blow on the head, knocking her to the ground.  She sustained a cervical disc herniation, for which she underwent surgical fusion; a tear of her rotator cuff, with resulting frozen shoulder, again surgically treated; and was permanently totally disabled from work.  This incident was one of several window malfunctions occurring after a state hospital opted to replace permanent windows with swiveling replacement windows.  Unfortunately, the hospital decided to discard the window well in advance of our firm being hired, essentially ‘destroying the evidence’ of what had caused the window to malfunction.

Through careful investigation and extensive pretrial discovery and depositions, we were able to reconstruct the window failure, tracing the problem back to the window pivot at the bottom of the window sash and the locking clip at the top.  We initially sued the installer and manufacturer of the window, alleging negligent and defective design and manufacture, as well as negligent installation.

By comparison with window specifications produced by the window’s original factory designer to the actual window, we were able to prove that the factory which manufactured the replacement window purchased its locking clips from a different manufacturer from that specified, but didn’t change the tooling that drilled the holes.  The spring driven lock was therefore installed too far away from the edge of the window, and the locking mechanism would therefore not fully extend into the window channel, making the window unstable at the top.  Similarly, the manufacturer substitued a different ‘pivot bar’ at the bottom of the window with an inadequately threaded and secured locking screw, which would tend to strip and loosen, causing the window to lose contact with its spring counterweight on one side; fly upwards on the other; and leave its channel, resulting in the Plaintiff’s accident.  We were also able to show by deposition that the window’s manufacturer had no idea of the implications which their substitution of components had caused, and had done little to determine whether changing components would have changed tooling or manufacturing requirements prior to putting the changed window out on the market.

Through careful investigation and multiple depositions, we also discovered that there were additional servicing companies which were assigned to repair the subject window prior to the Plaintiff’s accident when it was binding and sticking, likely because of these defects, and that these companies should have detected the design and installation defect.   We added these companies, as well as the company which had initially designed the window 20 years before, as defendants.

The Defendants strongly disputed the extent of the Plaintiff’s injuries, claiming that her complaints of neck pain were vastly exaggerated, and that her shoulder injury was largely healed.  We were able to counter these arguments with strong medical testimony, as well as a comprehensive vocational report that proved that her limitations prevented her from re-entering the work force, supporting a claim of hundreds of thousands of dollars of present and future wage loss.

The case was settled prior to trial for $487,500, with the bulk of the funds coming from the window’s manufacturer for their variance from the window’s original specificaitons.

Our office has obtained a settlement of over $1 million in present and future payouts  for scarring caused by a negligent surgeon who botched a child’s circumcision and then attempted to conceal his error.

The case involved a relatively inexperienced family practitioner who, during an otherwise routine circumcision of an infant, removed almost all of the skin covering the shaft of the child’s member.  The physician had apparently become confused and disoriented during the procedure and improperly re-adjusted a clamp which would have prevented this drastic mistake.  He stopped bleeding by extensively using a chemical agent to cauterize the bleeding and traumatized skin, and covered the wound with an over-large bandage.  He also reassured the child’s parents, who were concerned about their child’s appearance, that the seeping wound was ‘normal’ and would be ‘fine’ in a later visit.  The ‘overly aggressive’ circumcision was discovered by a supervising physician from the physician’s practice on the day after the circumcision, and the child was rushed to a consultation with a pediatric urologist, who eventually repaired the damage with a skin graft. The doctor later apologized to the child’s parents.

The defendant physician’s counsel insisted that the error in practice was not malpractice, but an ‘unfortunate result’, despite the physician’s subsequent termination from the family practice which hired him based upon the incident, as well as critical comments made by the head of the physician’s practice and the doctor who discovered his malpractice.  The insurer maintained this position virtually up to the time of trial, despite evidence which showed that the physician’s description of the manner in which the clamp was used was hopelessly confused and incorrect at deposition, and his attempt to distance himself from his apology to the child’s parents by claiming that it was not motivated by guilt but by a desire to avoid a malpractice suit.  Further evidence that the physician had appeared to become distracted while making comments to nursing students observing the procedure provided more proof of the physician’s failure to use due care.

The physician’s attorney also (correctly) argued that the scarring caused by the malpractice had been corrected within six months of the procedure and that the child had no observable medical problems and preserved function.  The physician’s insurer claimed that damages were therefore minimal.  We countered this argument with extensive medical research and psychiatric expert opinion concerning the likely psychological effects on child and mother caused by such a  disfigurement.  The case went to mediation one week before trial, and was successfullly settled for a structured payout worth $350,000 present value, with a stream of payments worth in excess of $1 million over the life of the child.

The "$4 Million Dollar Stairs"

Attorney Daniel Malis of MALIS|LAW, with the assistance of  Attorney Frederick Fairburn of Fairburn & Dyke in Lawrence, announced the culmination last week of five years of litigation involving the collapse of a stairway on a construction project in Hampton, NH which injured a Massachusetts plumber, though a settlement from various defendants totalling $4.1 million.

SERIOUS INJURY ON CONSTRUCTION SITE: The wood framed, 17 stair staircase collapsed after framing contractors, under the instruction of the general contractor, disconnected the stairs from side supports to insert fireproof drywall, but left the stairs in that disconnected fashion for a period of time between 1 day and more than two weeks depending upon which witness was believed.  My client, a plumber, was climbing the staircase when it collapsed.  When the staircase struck the landing below, the small of his back struck the edge of the stairs, crushing one of his vertebrae.  Following the collapse, the general contractor immediately re-erected the stairway; secured all stairways at the sides with extra nailers; and did not disclose the accident to local inspectors or the project engineer during a site visit the following day.

Demonstrative Evidence Showing the Damage to Client's Spine

MY CLIENT’S SPINAL INJURY: My client, a married 35 year old Massachusetts apprentice plumber, suffered a crush injury to his L1 vertebra when a 17 stair wood frame staircase gave way.  He was med-evacuated from a NH hospital to Beth Israel Hospital where he underwent the first of three surgeries over 5 years to stabilize his back, including, by the time of the final surgery, a four level lumbar fusion, with fixating steel rods extending over 7 vertebrae, and with additional surgery likely in the future.   While his motor functions were preserved, the employee remained in chronic, debilitating pain, with narcotic pain relief as his only medical recourse, and, according to Plaintiff’s vocational expert, was permanently totally disabled.  Plaintiff’s vocational expert and economist calculated the present value of his earnings loss over his career at $1.7 million which, with his $400,000 in medical expenses to date and continuing, presented special damages in excess of $2.1 million.

FINDING THE BEST FORUM FOR MY CLIENT: Rather than bringing suit in New Hampshire, we brought suit under diversity jurisdiction in federal court in Massachusetts against the engineer, architect and general contractor.  The New Hampshire-based design professionals claimed that Massachusetts had no jurisdiction over the case, and that the lawsuit belonged in New Hampshire, with a local judge to decide my client’s fate.  Despite the presentation of carefully worded affidavits from the architect and engineer which distanced the ‘design team’ from Massachusetts, our own investigation showed that both professionals were licensed in Massachusetts and had substantial contacts with this state, and the court denied their motion.

BUILDING A STRONG CASE: Vigorous discovery disclosed the identity of a Massachusetts –based framing supplier who had contracted to perform the framing, along with two NH-based framing subcontractors hired by that company to do the actual work.  These companies were joined as third party defendants.  The general contractor blamed the framers for the collapse; the framers claimed that they destabilized the staircase at the general contractor’s instruction.

THE CONTRACTORS’ NEGLIGENCE: Depositions of witnesses and other site contractors revealed that the staircases were not built according to plan or specification.  Testimony and post-accident photographs taken by a separate plumbing contractor who was first on the scene revealed that the subcontracting framers had sloppily  ‘toenailed’ the bottom of the stringers at an angle into plywood on the platform, instead of using a cleat or nailer which would have allowed the stringers to be nailed straight through the plywood platform securely into the carrying  beam. This substandard bottom connection of the staircase,  allowed the stair bottom to slip and kick out over time once the general contractor ordered the staircase to be disconnected for drywall installation, and was a major contributing cause of the staircase collapse..  The framing contractors’ departure from site plans and use of substandard attachment methods were not detected by the general contractor; the framing supplier, who contractually agreed to supervise the framing work; or the architect and engineer, who had contracted to inspect the site.

During a day-long deposition, the framing contractor who disconnected the stairs at their sides for drywall installation finally admitted that he knew that he had rendered the staircases unstable.  He admitted that while he would normally block off stairs left in this precarious shape, he could not explain why he did not do so on the stairs at this site.  These admissions established clear liability on the framing subcontractors, as well as confirmed the general contractor’s negligence for ordering the disconnection and failing to observe the improper staircase installation.     .

THE DEFENDANTS TRY TO EVADE LIABILITY: While the Plaintiff had established uncontroverted evidence of a drastic injury, the extent of his disability was disputed by the Defendants with a vocational assessment which, despite the Plaintiff’s dependence on narcotic painkillers, alleged that he still had the ability to consistently perform light duty work.  This was rebutted not only by the Plaintiff’s sympathetic appearance and supporting opinions from two orthopedic surgeons, as well as a vocational expert, but also by the graphic evidence shown above demonstrating that his seven level spinal fusion was unstable, with the securing screws shifting in his vertebral bodies and eroding the bone in which they were secured.

Following discovery, the parties attended a day long mediation, which was initially sought by the Defendants to settle the claim.  However, negotiations were reduced to a full day of finger pointing among the Defendants, with no real offers made.   We took advantage of this apparent disaster by sending demand letters under c.93A to the insurers for the general contractor and the framing supplier, based upon their complete failure to promptly evaluate the Plaintiffs’ claim and accurately address their exposures.

Eventually, on the date that responses to Plaintiff’s demand letters were due, the dispute (which at end turned out to be an argument over legal fees between the Defendants) was tabled between the insurers, and the general contractor and framing supplier tendered their full policy limits of $2 million to resolve both parties’ liability.  This opened a window to settle with the erring framing joint venture for $1.6 million, leaving the so-called ‘design professionals’, the architect and engineer, who had yet to tender an offer.

THE ARCHITECT AND ENGINEER’S NEGLIGENCE: The so-called ‘design team’ initially declined to settle, and presented a vigorous defense, despite admissions from the architect that the project engineer should have detected the improper staircase installation.  Counsel for the designers sought summary judgment, alleging that the entire cause of collapse was the building contractors’ negligence, and that the architect and engineer played no role in the staircase’s collapse.  Plaintiff presented countering affidavits from a construction expert and design experts initially presented by the settling Defendants and then retained by Plaintiff.  Summary Judgment was denied, and the case scheduled for trial in early 2010.

Plaintiffs further sought an order from the Court pending trial seeking to prevent offset of the settlement against any jury award, based upon New Hampshire’s ‘hybrid’ contribution statute, which awards damages based upon a contributing defendant’s percentage of negligent contribution to an accident (so-called ‘pure contribution’) but does not credit the settlement contributions of other settling parties.   While this motion was pending, the parties attended a half day mediation session with the previous mediator, Attorney Mulvey, and, over the strenuous objections of the architect and engineer, their insurers settled the remaining claims for $500,000, bringing the my client and his wife’s total recovery to just over $4.1 million.

While I’m debunking myths, here’s a morality tale, as they say on TV, ‘ripped from today’s headlines’ . . .

“Boston Scientific to pay $22M in payment inquiry
By MARLEY SEAMAN
The Associated Press
Wednesday, December 23, 2009; 4:53 PM
NEW YORK — U.S. attorneys in Boston said Wednesday heart device maker Boston Scientific will pay $22 million to resolve allegations its Guidant division paid kickbacks to doctors to get them to use its heart devices.
The U.S. Department of Justice said Guidant paid physicians $1,000 to $1,500 each in 2003 and 2004 to participate in four studies, called RaCE, RaCE II, RaCE III, and MERITS. It said the studies were designed to increase sales of pacemakers and defibrillators.
Federal officials said the company targeted doctors who favored products made by other companies, hoping the payments would induce them to use Guidant devices more often. They said Guidant submitted claims for payment on the devices to Medicare.
Boston Scientific did not admit wrongdoing as part of the civil settlement. Under the agreement, its cardiac rhythm management division will have to publicly disclose payments to physicians on a Web site. Boston Scientific also entered into a corporate integrity agreement.
The studies were conducted after the Food and Drug Administration had cleared the products for sale. Post-approval studies are often used to further evaluate medical devices or compare their performance.
Boston Scientific bought Guidant in 2006. The company is based in Natick, Mass.
Its shares rose 2 cents to close at $8.82 Wednesday. “

Many insurers (and, sometimes, even lawyers who represent injury victims) would have you believe that if you’ve had a prior injury or case, it will severely harm your present case, or limit or eliminate your damages. In my experience, in the hands of a good trial attorney, that ‘weakness’ can often be turned into a ’strength’.

If you take the right steps, reveal your history to your lawyer, and retain a properly skilled and diligent trial attorney, you can reverse the myth and maximize your recovery.

Here’s two great examples of how we can deal with medical history and complications here at MALIS|LAW, from past cases:

1. The Classic ‘Bad Back Made Worse” — I had a client who was injured on a construction site, who’d had a bad back that was so troublesome that he was seeing a chiropractor and orthopedic surgeon on a monthly basis before he had the fall that led him to hire me.

At trial, we demonstrated graphically with before-and-after Xrays and MRIs that his fall had tremendously accelerated the rate of deterioration of his spine. His treating doctor testified that his pre-existing degenerative condition made his spine far more vulnerable to trauma like that caused by his fall. His wife testified that while he had given up many of his favorite sports activities, his one source of pride as a man was his ability to work and earn, and that this accident was, literally, the ’straw that broke the camel’s back’.

A jury awarded him well over a million dollars for his claim.

2. Drug Addiction — Insurers love to put an injured person’s illegal drug use in front of a jury to ‘tar’ a claimant. In one case in my office, however, we were able to turn that potential weakness into a strength:

A client came to my office with an awful injury. During his recovery from surgery, his need to take opiate pain killers to deaden his pain brought back an old ’street’ addiction to illegal narcotics. Eventually, his family had to have him hospitalized to rehabilitate. Massachusetts law, however, prevents admitting evidence of addiction or illegal narcotic use as damages.

We were still able to use my client’s dramatic story, however, to underscore the extent of his damages. I was able to demonstrate, through family and physician testimony, the depths of his pain; the complications from his addiction; and the completeness of his rehabiltation, and the help he received from his wife ad his family. Even though we couldn’t introduce evidence of accident related addiction, we still retained an expert in the field of addiction who would be prepared to testify that his accident related opiate use ‘triggered his addiction’. This presented the insurers with a dilemma; if THEY introduced the evidence of my client’s drug addiction to lessen my client’s reputation with the jury, they faced potential admissibility of his addiction as a damage.

Despite this potentially ‘lethal’ complication in my client’s treatment, the case settled for many millions of dollars (and, I’m pleased to say, the client has successfully warded off his addiction).

Here’s a few general rules of how to deal with your medical history in YOUR case . . .

1. BE HONEST WITH YOUR LAWYER.

Disclose your prior medical history in detail to your lawyer when you hire them. Don’t hold back information because you think it will discourage the attorney, or prevent them from working hard for you. The lawyer’s worst enemy in a personal injury case is an undisclosed prior injury. However, if you disclose your past history, the lawyer may well find ways to maximize your recovery, as you’ll see below.

2. UNDERSTAND THE LEGAL STANDARD.

The law in virtually every state will compensate an injury victim for the extent that an injury worsens a prior condition, even if the nature of the trauma wouldn’t have ordinarily injured a hale and healthy ‘victim’. The law ‘takes victims as they find them’. For example, if a prior trauma worsened a kneecap so much that another trauma, even if light, fractured it, the victim’s entitled to recover for damages for the fractured knee. However, in awarding or assessing damages the jury (or insurer) can take into account the fact that the knee was already not 100% to begin with.

3. TELL YOUR DOCTORS YOUR ENTIRE HISTORY.

Just as with your attorneys, don’t hold back details from your medical doctors. Most physicians will tell you that ‘patient history’ during interviews is a critical diagnostic and treatment tool. Just as with your attorneys, your doctors need to know about your past to give accurate appraisals of your present and future condition. If something troubled you before the accident, even if it was previously resolved, let your doctor know (even if they don’t come out and asked). If you had an ongoing problem, make sure the doctor knows about it, and also knows whether it’s different or worsened now. A full and accurate medical history will help you get the maximum recovery from medical treatment (which should always be your goal, as no personal injury settlement will make up for your loss of health).

4. DON’T DECIDE WHAT’S IMPORTANT OR WHAT’S NOT — DISCLOSE EVERYTHING.

Obviously, the first question about a prior injury or claim is: are they not at all related? A prior knee injury will likely have nothing to do with hurting your shoulder. A chronic problem with your finger has little effect on a brain trauma. While these are obvious exaggerations, they still can be used by a skilfull defense lawyer to hurt your credibility if they aren’t disclosed up front. This might seem counter-logical — why create a record that could hurt your case? However, understand that insurers conduct thorough investigations of claimants, through attorneys and, during litigation, using the formal tools of discovery. Assume that the insurer will not find out, and trust me, they will, and will use your non-disclosure as an excuse for not paying you fairly for your injury. Assume that they will, and you take this weapon away from them, and allow your lawyer to tell the story that benefits you best from the real facts at hand.

5. DON’T EXAGGERATE OR MINIMIZE A PRIOR INJURY.

Often, orthopedic injuries heal in a relatively short time. Sometimes, they don’t, presenting nagging injuries that last for years. In either case, the insurer’s best strategy is to get an injured person to distort or lie about their past, ‘trying the lie’. Since a jury tends to distrust injured persons seeking compensation anyhow, the insurers and their attorneys try to make the injured person less credible, suggesting that a misstatement about something years ago amounts to a lie being told today. The best way to frustrate that strategy is to look back, honestly, at your injury ‘past’, and make sure your attorney knows about it. Review the records with them when he or she obtains them, and refresh your memory about the prior history, especially prior to answering interrogatories (questions under oath) or to giving a deposition (a sworn statement under oath).

6. LOOK FOR CONNECTIONS

So you’ve injured the same part of your body twice. Any orthopedic doctor would tell you that a prior trauma to an area creates a greater likelihood that a second trauma will cause more or worsened damage. It makes sense — if you’ve damaged ligaments or tendons, these injuries can weaken the support structure so that another trauma rips far more. Think about how differently a healthy tree and a damage tree weather a storm. So reflect a little bit about your medical condition before describing your history to your attorney. Were you truly fully recovered, or did you have a residual twinge that’s now out of control? Let him or her know.

7. KNOW YOUR PAST — DON’T MEMORIZE IT.

In this process, you aren’t required to remember every detail of your past; no one’s that smart, or lives their life as a notetaker. Disclose everything as best you can, but don’t get so tied up in dates or times that you come off as ’scripted’. Give your best, honest recount of your medical history, and rely on your lawyer to help you over any factual bumps.

8. TRUST YOUR LAWYER TO TELL YOUR STORY.

Since few of us escape life without getting nicked up, almost all of us would have to deal with a prior injury as part of our medical history, and as part of presenting the claim. The area of ‘prior claims history’ or injury history is probably the greatest reason that your lawyer will add value to your claim. They’ll scour your record and, if reasonably skilled, will try to either minimize the effect of a prior injury by distinguishing it; demonstrating that it had already been well resolved; or, even better, using it to explain how the trauma of your current accident created so much damage to you or your life.

Boyfriend Hit Someone Crossing Against the Light

My boyfriend who is on my insurance hit a woman crossing against the light. Two witnesses verified that she was crossing against the light on the police report. She was able to get up and walk, but how bad is this going to be for us?

Daniel Malis Says:

Dear ‘Chicago’,

While I’m not a licensed attorney in Illinois, you’ve posed a common general question, so here goes:

1) The bad news: As to your boyfriend’s responsibility for the accident, while it is helpful that the woman was crossing against the light, it’s not determinative of her or your boyfriend’s relative fault for the accident. I don’t know of any state where crossing against the light provides an automatic defense for a driver to striking a pedestrian; or, phrased another way, it’s never lawful to strike a pedestrian who’s crossing a road. However, the pedestrian’s failure to comply with traffic laws by crossing against the light may be a factor a jury or judge would consider in apportioning blame, either by finding your boyfriend not responsible or by allocating a share of the blame to the pedestrian. Other factors will play a part; such as, had the pedestrian just stepped off into the curb or was she well across the street and in plain view of your boyfriend when he struck her? Was she running or walking at a normal pace? Were there obstructions to your boyfriend’s view that might have prevented him from seeing her before it’s too late?

2) The good news: the reason you carry insurance on your car is for circumstances like these. Your insurer will investigate the accident and the injury, and provide you and your boyfriend with an attorney to present your defenses. Hopefully, if her injury is not severe and your coverage adequate, this will be only an inconvenience as to your time, and will not be ‘bad’ at all. The vast majority of these cases settle without anybody but the insurer paying, and well before any trial of the case occurs.

3) As a personal injury attorney who does much more work for injured parties than for negligent parties, I can tell you that it is very rare for a plaintiff (the injured person) to seek or obtain judgments for damages beyond insurance coverage limits of the driver and owner of the vehicle. Such ‘private’ judgments are time consuming, delay payment of insurance proceeds unduly, and difficult to enforce.

You can learn more about how these factors play out in your case by discussing these issues with the adjuster whom the insurer selects to handle your case, and, if necessary, Make sure that the insurer has all of your information so that it can start your investigation.

Sleep easy, and good luck.

Does an insured driver have to pay for the damage of an uninsured if I was hit from the rear.

I was charged with failing to yield. I stopped at the stop sign and then preceded to merge into the median when I was hit. The driver of the other car was only charged with no insurance.
I do no see how I failded to yield when I did stop and make sure there was nothing coming. The other driver had to be driving too fast or was doing something other than looking not to be able to see me. Both of us was taken to the hospital and I was told at the hospital that I was charged with failure to yield. Will I be responsibe to pay for the other drivers damages? This happened in South Carolina.

Daniel Malis Says:

The short answer is that your, or the other driver’s, insurance status does not dictate whether or not you are legally responsible for causing damage to another’s car. Your liability is not dependent upon insurance, but upon whether or not you (and the other driver) drove your car with care appropriate for the circumstances (otherwise called ‘reasonable care’ or, when not shown, ‘negligence’).

Fortunately for you, you are covered, which means that your property damage will be paid for; you will receive an attorney to defend you paid by the insurer; they will present your defenses (and, from your recounting, it’s clear that you feel that you have some); and, if your defenses do not prevail, will pay for the damages suffered by the other party up to the limits of your insurance policy.

If you haven’t done so already, put your insurer ‘on notice’ of this accident by contacting them. They’ll take the lead from there.

I was hit from behind by a drunk driver in his company truck.my car was totaled and my arm and back was injured.

what is the minimum amount of settlement i should expect?

Daniel Malis Says:

Dear Shreveport,

I’m sorry for your injury and the pain and change of lifestyle you’re probably already experiencing. While it’s a business to myself and my brethren, it’s important for us to remember that for you this is not first an economic issue but one of irreplaceable health.

You’d be surprised how often I hear this question, or the equally important question: ‘what’s my case worth’?

My joking answer, which of course is based in reality, is ‘the maximum amount that an insurer will offer you, and not a penny more.’ The actual answer is far more complex and can’t be answered simply, There are many factors that enter into the value of a case, some obvious, some not.

The obvious ones: you are entitled, in a case of clear liability such as the one you’ve posed, to reimbursement for your past and likely future medical expenses; your past and likely future lost earnings; and out of pocket monetary losses.

You are also entitled to reimbursement for ‘hedonic’ damages, such as the impact the pain of your injury and any resulting temporary or permanent disability and restrictions impose on your lifestyle. You are entitled to the value of services others must render for you if you are unable to carry them out. You are also entitled to receive an award for ‘pain and suffering’, the impossible-to-specifically-calculate value of what you’ve gone through and can expect to go through. The ‘price’ of these items is very difficult to specifically quantify, and will depend upon the extent of your injury; the permanency of your injury and limitations; the objective or subjective medical evidence of your injury (how ‘provable’ your condition is); the relative state of your health before the accident, as compared to after; the kind of work you do, and whether this injury will temporarily or permanently disrupt that work; and many, many other factors.

Having said that there’s no way to quantify these things, experienced trial lawyers do value these claims all the time once the information’s collected, based upon verdict reports; past settlement history; amount of insurance coverage available to pay for your injury; and their own past settlement and trial experience. Valuing a case is awfully tricky business, but a good trial lawyer develops a ‘nose’ for these things, and for emphasizing strengths and weaknesses of your and your opponents’ cases that can be developed, emphasized, or turned to your advantage.

Ultimately, ‘case valuation’ is the ultimate reason why, from a historical perspective, lawyers add far more to the value of a case than their contingency fee reduces your recovery. Get yourself a smart, skilled trial attorney who will advocate your interest and develop this evidence.

Another point to emphasize; if it’s early in the case, there’s almost no way any competent lawyer can ‘value’ your injury in the way you seek, and it’s often counterproductive for you and your life to do so. Often clients ’suspend’ their life awaiting a big verdict or settlement that may never arrive. Focus your energies not on your expectant settlement, but on treating consistently with your medical providers and getting as recovered as you can, because no settlement can make up for your health.

Best of luck.

These are posted on my website, but it never hurts to repeat ‘em . . .

THE TEN COMMANDMENTS OF PERSONAL INJURY

1. THOU SHALT NOT MOVE UNTIL YOU KNOW YOU’RE OK.

When you’ve been hurt, you need to take a second to appraise your injury. Stabilize yourself; look around at your surroundings; check to see what hurts, and how badly. You may be embarrassed, or feel the need, if you’re at work, to ‘get back to it’. Before you obey that impulse; make sure you know how badly you’re hurt and what happened to you.

2. THOU SHALT OBSERVE THE AREA.

While you’re catching your breath, look around the accident scene. If you’ve fallen, see what caused your fall. Look for conditions that are out of order, things that don’t fit or don’t belong. Make an effort to remember what you’ve seen, and, more important, who you’ve seen.

3. THOU SHALT IDENTIFY WITNESSES.

Make it a point to get the names of people who saw your injury or the aftermath. Not just first names, but names and phone numbers, preferably addresses if you can. (This applies specifically to construction workers, who know everyone’s first name and no one’s last!) Since writing might be difficult, use your cell phone to save numbers and names if you can. If you can’t type, call yourself and leave yourself a voicemail.

4. THOU SHALT NOTIFY PEOPLE THAT YOU’VE BEEN HURT.

If you’re on the job, let your supervisor, shop steward, general foreman, and general contractor’s safety persons (as they apply) know that you were hurt and how. If you’re on someone else’s property, like a store, parking lot, or other area, tell the owner if identifiable, or at a large property, let security know. If it’s a car accident, call the police and have them come to the scene. If you’re on a work site, and there’s a dangerous condition, on a union job let your steward know and ask him or her to document the condition; that’s part of their job. If not, and you need emergency treatment, ask a co-worker to let people know what’s happened and document conditions.

5. THOU SHALT DOCUMENT THE SCENE AND STORY.

If you can, photograph the scene of the accident (a lot of cell phones have cameras); if you can’t, ask someone else nearby if they can take pictures or notes, with their own phones, cameras, or just a pad of paper. Write down what you remember about the accident as soon as possible, or leave yourself a voicemail (again, think of your cell phone as a portable data storage device).

6. THOU SHALT PRESERVE EVIDENCE.

If there’s a mechanical malfunction or failed product involved somehow in the accident, make sure someone, if possible, gets it from the scene and retains it. If it’s a product you use in the home, resist the temptation to throw the injuring product as far down a hole as you can, and save it, preferably with its packaging if you still have it, and hold onto sales slips. If it’s a broken part on a car or work site, at least photograph it, or have someone do it; even better, grab the thing if you can and hold onto it.

7. THOU SHALT GET MEDICAL CARE.

If you’re in pain, no matter how insignificant you think the injury is initially, get to the emergency room or a doctor’s office promptly. You may be in shock, and don’t know the full extent of your injury. Many sprains, strains and musculo-skeletal injuries ‘stiffen up’ within 24 to 48 hours, so don’t be surprised if you don’t feel pain initially. Statistics show that the quicker medical intervention occurs, the quicker you’ll get or feel better. And, follow your doctor’s instructions about follow up care.

8. THOU SHALT NOT WORK IF IT HURTS.

Human psychology is funny; people who get hurt often want to deny the accident happened, or deny how badly they feel, out of embarrassment or a need to ‘put the incident behind them’. This doesn’t serve the injured person; it only serves the person or company which caused the injury. Pain is the body’s ‘messenger’ and warning system, so if something hurts you, stop and don’t do it.

9. THOU SHALT NOT TALK TO STRANGERS.

The first thing that defendants want to do is get statements. So, unless it’s a police officer or your boss, don’t comment. Speak only to your lawyer. You might have to report how an accident happened in a work environment; that’s a job obligation, and you have to do it. Otherwise, though, wait until you speak with an attorney before giving any other statements (ESPECIALLY RECORDED ONES!)

10. THOU SHALT CALL ATTORNEY DANIEL MALIS.

Call a lawyer who understands and specializes in personal injury litigation as soon as possible after your accident. At the initial stage of an injury, you truly don’t know how bad it will get, and valuable evidence is eroding daily, while the party that caused your injury, with notice of your potential claim, is scurrying to develop defenses, perhaps destroying critical evidence as they do so. Experienced personal injury lawyers know how to make sure that this doesn’t happen, and can only do so if we’re involved early.

More cases are won (and lost) in the week or so after the accident than at any other time. Your real estate or probate attorney won’t know how to investigate a worksite accident (you wouldn’t have a plumber fix your electrical wiring). That’s not what they do. This is what I do.