Posts Tagged ‘Personal Injury’

A Few Thoughts on ‘Personal Responsibility’ in the New Year — The Case of the Seductive Spin

Happy New Year, to clients, attorneys, and readers all!

RESPONSIBILITY IS A SOCIAL ISSUE: As I sit here reflecting on the lessons of the past and hopes for the future (a traditional New Year’s meal if there ever was one) I wanted to talk to you a bit about a concept near and dear to my heart — personal and social responsibility — the essential social contract that our system of civil responsibility is founded upon.

I am no paragon of virtue, but I recognize that I have a broader duty than to simply make money for my clients. I hope that my upcoming post on the ‘maligned medico’ makes it clear that I, like many of my brother and sister attorneys, see the other side of what I do (watch for that next week!). Of course there is more than one side to any story, or any case. And, of course, no case is perfect, which means, often, that there will always be defenses to any claim asserted by any party I sue.

HAVE WE LOST SIGHT OF ‘TRUTH’ IN OUR SYSTEM? — If there’s any theme that keeps surfacing in some of my major cases, though, it’s that of insurers, defendants and, sometimes, attorneys on the other side trying to seek any possible excuse for deflecting blame, instead of stepping up, assuming ownership of what they’ve done wrong, and trying, through the best means possible, to make things right. Over and over again, I’ve seen sued parties fail to produce, ‘lose’ or destroy evidence which would demonstrate their negligence or wrongdoing; pointed fingers in any other direction than their own; and, at times, negligent and liable parties even denying their own confessions of fault at some point after the accident.

At the same time, I must be as honest as I can and admit that I sometimes encounter this same kind of behavior from clients, especially the occasional ‘player’. As my article on ‘prior pain’ indicates, I preach to all of my clients that the truth will ‘set them free’, and that fibbing or distortion, in the face of dedicated and careful investigation, will always harm them. Unfortunately, that advice isn’t always followed. Invariably, my prediction of the dangers of a client discrediting themselves by distortion generally come true. I feel little comfort in knowing that when it happens, ‘I told them so.’

I tell attorneys on the other side of my cases that ‘we’re all pilgrims in search of the truth’, and despite the hokiness (or pompousness) of that claim, I truly believe it. I govern my behavior with other attorneys, defendants and insurers on that principal, with the knowledge that my clients, both in the short and longer terms, benefit from that policy and from my reputation, which I hope is a strong one.

THE SOCIAL PRESSURE TO ‘SPIN‘:  While it would be easy to blame this kind of ‘spin’ on defense attorneys or insurers (and believe me, I often do) I think that there’s another dynamic in play, that’s more social and socialized. Whether our political system, our media, or perhaps my profession have made this happen, I can’t say, but truth telling has become less a social imperative and more of a strategic weapon to be deployed (or withheld) at a party’s option.  Our system is designed to frustrate lies.  Sometimes, whether you’re on the inside (like myself) or on the outside, you have to ask; is it doing a good job?  Or has winning become so paramount in our society that we’ve made the truth forfeit to our chance of winning?

A HOPE IN THE COMING YEAR: From today’s public perspective on attorneys, this may sound ironic coming from a lawyer, but in the new year, I hope to see fewer insurers preaching ‘responsibility’ and more practicing it; fewer defendants ducking responsibility and more accepting it; and, overall, more seeking of the truth and less attempts at selective, self-advantaged distortion of it. Short term, some individual parties, whether claimants or tortfeasors, will be unfairly disadvantaged (although I highly doubt it!)   In the long term, though, I remain convinced that the wrongfully injured, and justice, will benefit most.

The Case of the Girlfriend’s Grief — What Should a Client Worry About When an Accident Happens?

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.

The Case of the Indignant Insured — Does an Uninsured Driver Have a Right to Sue?

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.

The Case of the Drunkard’s Damages — What Goes Into a Settlement?

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.

Ten Commandments of Personal Injury

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.

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FAQs, Interesting News and Law-Related Rants

Daniel Malis uses this blog to publish answers to frequently asked questions, convey interesting news and make the occasional law-related rant. If you have any questions or want to contact Daniel Malis, please see the Contact page of the MALIS|LAW Website.