Many lawyers do not call witnesses to ask what happened in an accident. Instead, they rely on second hand information from investigators and police reports. Sometimes they will subpoena witnesses. Whenever possible, I call the witnesses. 90 % of the time, after a phone call or cup of coffee, the case has gotten stronger.
Over the last few months, there has been a number of examples of this. By calling a name referenced without explanation in an FAA report, I learned about the existence of an eyewitness to an airplane crash.
By calling the doctor hired by an insurer to examine a client, I was able to confirm that injuries had been caused by an accident. By calling employees on a work roster, I was able to confirm that ignoring safety rules was a common practice. In one particular case involving road maintenance, a witness would regularly call me to share that the highway maintenance crew were continuing the same practice that had caused the death of my client's father.
Why don't lawyers call witnesses more often? Part of the reason is that in a busy practice filled with court Orders and phone calls requiring action, it becomes just another thing to do that can be easily put off. Another reason is simply the naive belief that reports or subpoenas will achieve the same goal with less effort by the lawyer. Finally, one has to admit that getting a call from a lawyer is rarely "good news" and sometimes witnesses will actively try and avoid lawyers. I try and overcome this attitude where possible by having clients, if possible, tell the witness I will be calling.
You have to play your hand smartly. See www.Junelawyer.com
Tuesday, April 9, 2013
Monday, April 1, 2013
Why Lawyers File Lawsuits
Few people are excited by the fact that of having a lawsuit. Every Client asks whether it will be necessary for their case "to go to court." After the lawsuit is filed , Client ask whether their case will "settle" before trial. Why, then, when clients want to avoid lawsuits, do lawyers file lawsuits? The answer is that lawsuits (and trials) are often required before insurance companies treat clients fairly. Even then, there is no guarantee.
Because clients do not like lawsuits or trials, it is my policy before filing a lawsuit for a client to give insurance companies the opportunity to treat clients fairly. If the insurer does not treat the client fairly, the client decides on the next step. Unfortunately, more often than not, the insurance companies miss out on this opportunities.
In my most recent example, a friend had a small motor vehicle accident in which she was injured but, fortunately, after 6 months of chiropractic care at a cost of $7,500, she recovered. She called me after the motor vehicle insurer, an insurer known for advertising its low rates, offered to settle her claim by paying $7,500 to the chiropractor and the small sum of $1,500 to the client for the interruption of her life. After the filing of suit and the passage of 1 year, the motor vehicle insurer offered to settle her case by paying the chiropractor and paying the client $10,000 for the interruption of her life. This shows how insurance companies treat clients that file lawsuits more fairly than clients that do not.
I have had other similar experiences in other contexts: One example is the vessel insurer that represented that, with "a little more medical information," it would be in a position to treat a client fairly only to have 12 months pass with no action. Another example is the airline insurer that represented that, if medical and tax records were provided, it would treat my client fairly in valuing losses only to advise after the records were provided that its lawyer would have to obtain the same medical records a second time directly from the physicians.
One wonders whether the insurance companies appreciate their missed opportunities. You have to play your hand smartly. See www.Junelawyer.com
Wednesday, February 27, 2013
Allocation of Fault a/k/a The Discount Coupon Defense
Clients naturally ask how a party that clearly has acted wrongfully can not be responsible for paying 100% of the losses resulting from wrongful conduct. For example, how can the driver making the bad left turn not be responsible for the injuries he has caused, how can the bar that wrongfully sold liquor to a minor not be responsible for the resulting drunk driving accident, and how can the foster home not be responsible for its employee's sexual assault on a resident. The answer is the Discount Coupon defense in which the responsible party argues that, because others are at fault, its legal responsibility is limited to its share of the fault.
Because of laws passed in 1997 questionably called "Tort Reform," parties legal responsibility is limited only to their share of fault. What this means is that parties that have acted wrongfully look to blame others, including the accident victims for accidents. For example, the driver making the bad left turn will say that the accident victim driving the other vehicle should have seen the bad left turn and avoided the accident, the bar will say that the minor is more responsible for the accident, and the foster home will say that its employee is responsible for the assault.
How does this work? For cases that go to trial, the Court requires juries to allocate percentages of responsibility for accidents. If the jury finds that accident victim to be 50% responsible for the accident, the bad left driver only has to pay 50% of the resulting losses. If jury finds the minor is 90% responsible for driving drunk, the bar that sold the liquor only pays 10% of the resulting losses. Similarly, if the jury finds the foster home employee is 90% responsible for the sexual assault, the foster home only pays 10% of the resulting loss. In other words, the percentage is equivalent to a Discount Coupon for wrongful conduct.
I make no attempt to justify this system as being either fair or just, particularly with respect to situations like the bar or the foster home which the law requires to protect the innocent public from their wrongful actions. However, the Legislature in its infinite wisdom says this is how justice in Alaska works. Accident victims have to play their hand smartly. See www.Junelawyer.com
Because of laws passed in 1997 questionably called "Tort Reform," parties legal responsibility is limited only to their share of fault. What this means is that parties that have acted wrongfully look to blame others, including the accident victims for accidents. For example, the driver making the bad left turn will say that the accident victim driving the other vehicle should have seen the bad left turn and avoided the accident, the bar will say that the minor is more responsible for the accident, and the foster home will say that its employee is responsible for the assault.
How does this work? For cases that go to trial, the Court requires juries to allocate percentages of responsibility for accidents. If the jury finds that accident victim to be 50% responsible for the accident, the bad left driver only has to pay 50% of the resulting losses. If jury finds the minor is 90% responsible for driving drunk, the bar that sold the liquor only pays 10% of the resulting losses. Similarly, if the jury finds the foster home employee is 90% responsible for the sexual assault, the foster home only pays 10% of the resulting loss. In other words, the percentage is equivalent to a Discount Coupon for wrongful conduct.
I make no attempt to justify this system as being either fair or just, particularly with respect to situations like the bar or the foster home which the law requires to protect the innocent public from their wrongful actions. However, the Legislature in its infinite wisdom says this is how justice in Alaska works. Accident victims have to play their hand smartly. See www.Junelawyer.com
Wednesday, February 20, 2013
How Lawyers Help Clients Deal With Insurers
A Client came to me for help help on a problem.
Through his work, he had purchased a small accident policy that was supposed to pay $10,000 in medical expenses and a small disability benefit for 6 month. He also insured his long-haul Kenworth tractor with the same company. Following a one vehicle accident that the Client believed was caused by faulty repairs leaking carbon monoxide into the cab, the Insurer denied all benefits, saying that the accident must have been caused by some unknown illness or disease. The same Insurer was unresponsive on the Client's claim for the total loss of his tractor leaving a voice mail with no further explanation that all proceeds would be paid to the lender.
I can remember the meeting where the Client shared his frustrations in how he had purchased the insurance to protect himself in case of an accident and how it had turned out to be worthless. Convinced that his problems were due to misunderstandings and a failure of communication, my recommendation was that he file a Complaint with the Alaska Division of Insurance. The Client's even more frustrated response was to say that he had!
With the Client having given the Insurer every opportunity to perform as it had promised, a lawsuit was filed for insurance bad faith. After a year, the Insurer finally paid the promised benefits in full, plus interest, plus additional damages.
The playing field between an insurer and its insured is not level. You have to play your hand smartly. See www.Junelawyer.com
Through his work, he had purchased a small accident policy that was supposed to pay $10,000 in medical expenses and a small disability benefit for 6 month. He also insured his long-haul Kenworth tractor with the same company. Following a one vehicle accident that the Client believed was caused by faulty repairs leaking carbon monoxide into the cab, the Insurer denied all benefits, saying that the accident must have been caused by some unknown illness or disease. The same Insurer was unresponsive on the Client's claim for the total loss of his tractor leaving a voice mail with no further explanation that all proceeds would be paid to the lender.
I can remember the meeting where the Client shared his frustrations in how he had purchased the insurance to protect himself in case of an accident and how it had turned out to be worthless. Convinced that his problems were due to misunderstandings and a failure of communication, my recommendation was that he file a Complaint with the Alaska Division of Insurance. The Client's even more frustrated response was to say that he had!
With the Client having given the Insurer every opportunity to perform as it had promised, a lawsuit was filed for insurance bad faith. After a year, the Insurer finally paid the promised benefits in full, plus interest, plus additional damages.
The playing field between an insurer and its insured is not level. You have to play your hand smartly. See www.Junelawyer.com
Monday, January 28, 2013
What Happens When there are 6 Accident Victims and Only 1 Insurance Policy
What happens when there are 6 victims in the same car accident and there is only one insurance policy covering the responsible driver. Unfortunately, this happens.
In the past, attorneys representing each accident victim would race to be first to the insurer with the result being that, after the first 2 claims, there was no more insurance. The insurance had been exhausted and the remaining victims were left out in the cold.
In a case, Williams v. GEICO, http://www.courts.alaska.gov/ops/sp-6746.pdf, published last Friday, January 25, the Alaska Supreme Court established a new rule. Instead of settling the cases which raced to the courthouse first and then closing their file, insurers are now required to attempt to resolve all claims if possible. What does this mean for accident victims.
1. If you are in a serious accident, you still need to be represented by a lawyer sooner rather than later. Otherwise, your interest is not represented.
2. If insurance is limited, it is possible that the insurer (or a court) will prorate the insurance according to each individual's losses. In this case, you will need to present your losses for purposes of securing a maximum, albeit inadequate, recovery.
3. You will need to carefully examine all other sources of insurance. Most often this additional insurance will be found in Underinsured Motorist coverages applicable to the vehicle, in your own name, and in the name of other household members.
4. You will need to determine whether the limits of multiple insurance policies can be stacked.
You have to play your hand smartly and it gets complicated quickly. See www.Junelawyer.com
In the past, attorneys representing each accident victim would race to be first to the insurer with the result being that, after the first 2 claims, there was no more insurance. The insurance had been exhausted and the remaining victims were left out in the cold.
In a case, Williams v. GEICO, http://www.courts.alaska.gov/ops/sp-6746.pdf, published last Friday, January 25, the Alaska Supreme Court established a new rule. Instead of settling the cases which raced to the courthouse first and then closing their file, insurers are now required to attempt to resolve all claims if possible. What does this mean for accident victims.
1. If you are in a serious accident, you still need to be represented by a lawyer sooner rather than later. Otherwise, your interest is not represented.
2. If insurance is limited, it is possible that the insurer (or a court) will prorate the insurance according to each individual's losses. In this case, you will need to present your losses for purposes of securing a maximum, albeit inadequate, recovery.
3. You will need to carefully examine all other sources of insurance. Most often this additional insurance will be found in Underinsured Motorist coverages applicable to the vehicle, in your own name, and in the name of other household members.
4. You will need to determine whether the limits of multiple insurance policies can be stacked.
You have to play your hand smartly and it gets complicated quickly. See www.Junelawyer.com
Thursday, January 10, 2013
Voyages of Discovery or Fishing Expeditions: Your Lawyer's Fight for Evidence
A client does not receive compensation for his injuries just because there was an accident. Rather, the client must establish that the responsible party was negligent, i.e., made a mistake that should not have been made. This can only be done through evidence. Unfortunately, it is the responsible party, not the client, that, most often, controls this evidence. Once a lawsuit is filed, the lawyer must obtain this evidence through the process called "Discovery" in which responsible parties are supposedly required to "voluntarily disclose" relevant evidence as well as provide additional evidence formally requested by the accident victim's lawyer.
In fact, important evidence is not provided voluntarily and defense lawyers regularly call efforts to locate that evidence through documents and witness depositions as "fishing expeditions." Recent experience shows why this is not true and why accident victim lawyers must work hard to discover all important evidence..
In a case in which insurer misconduct led to the total loss of a client's business, basic policy manuals and documents guiding its employees were not provided. Because every business in the modern world has basic policy manuals, the insurer was asked to do so. In response, the defense lawyer represented that there were no such documents. (Actually, the defense lawyer first said that he did not understand what evidence was being requested and that basic policy manuals had no bearing on the case, calling the request a "fishing expedition" but when the Court finally ordered the policy manuals to be provided said there were none. One wonders why he did not say so in the first place but that is a different subject). Not surprisingly, when the first witness was asked the same question, the witness described a series of policy manuals. How can this happen?
I would like to believe that the defense lawyer was not dishonest but that economic incentives of the legal system lead to the defense lawyer being improperly ignorant. Because relevant evidence will lead to the responsible party paying damages, the responsible party has the economic incentive to be "Clintonesque, i.e., to feign ignorance by pretending either that one does not understand what evidence is being sought or by pretending that one does not have the knowledge to appreciate where the evidence is. After all, promotions and bonuses are given for bringing money in, not paying money out to accident victims. At some level, my guess is that defense lawyers also appreciate this but have the same economic incentive to be improperly ignorant, i.e., defense lawyers are paid by their clients to trust the client's word and "fight" to protect their clients from paying money to accident victims. While one may hope that the defense lawyer follows a higher standard and makes his own independent best efforts to locate relevant evidence that does not happen. When relevant evidence is uncovered, defense lawyers regularly say that, had they known about the evidence, it would have been disclosed. The important question is how could they not know about the evidence?
There is a reason that Columbus' expeditions to the New World were called "Voyages of Discovery" and not "Voyages of Confirmation" or "Fishing Expeditions." Columbus knew something was out there, just not the exact form of what he would find. The same is true for lawyers in discovery seeking evidence to help accident victims. It is because the lawyer cannot trust responsible parties to voluntarily provide evidence important to establishing legal responsibility that the lawyer must be thorough. See WWW. JUNELAWYER.COM
In fact, important evidence is not provided voluntarily and defense lawyers regularly call efforts to locate that evidence through documents and witness depositions as "fishing expeditions." Recent experience shows why this is not true and why accident victim lawyers must work hard to discover all important evidence..
In a case in which insurer misconduct led to the total loss of a client's business, basic policy manuals and documents guiding its employees were not provided. Because every business in the modern world has basic policy manuals, the insurer was asked to do so. In response, the defense lawyer represented that there were no such documents. (Actually, the defense lawyer first said that he did not understand what evidence was being requested and that basic policy manuals had no bearing on the case, calling the request a "fishing expedition" but when the Court finally ordered the policy manuals to be provided said there were none. One wonders why he did not say so in the first place but that is a different subject). Not surprisingly, when the first witness was asked the same question, the witness described a series of policy manuals. How can this happen?
I would like to believe that the defense lawyer was not dishonest but that economic incentives of the legal system lead to the defense lawyer being improperly ignorant. Because relevant evidence will lead to the responsible party paying damages, the responsible party has the economic incentive to be "Clintonesque, i.e., to feign ignorance by pretending either that one does not understand what evidence is being sought or by pretending that one does not have the knowledge to appreciate where the evidence is. After all, promotions and bonuses are given for bringing money in, not paying money out to accident victims. At some level, my guess is that defense lawyers also appreciate this but have the same economic incentive to be improperly ignorant, i.e., defense lawyers are paid by their clients to trust the client's word and "fight" to protect their clients from paying money to accident victims. While one may hope that the defense lawyer follows a higher standard and makes his own independent best efforts to locate relevant evidence that does not happen. When relevant evidence is uncovered, defense lawyers regularly say that, had they known about the evidence, it would have been disclosed. The important question is how could they not know about the evidence?
There is a reason that Columbus' expeditions to the New World were called "Voyages of Discovery" and not "Voyages of Confirmation" or "Fishing Expeditions." Columbus knew something was out there, just not the exact form of what he would find. The same is true for lawyers in discovery seeking evidence to help accident victims. It is because the lawyer cannot trust responsible parties to voluntarily provide evidence important to establishing legal responsibility that the lawyer must be thorough. See WWW. JUNELAWYER.COM
Monday, December 10, 2012
Be Wary of Free Seminars Following Multiple Victim Accidents
There was a tragic accident on the Seward Highway North of Girdwood in which 11 persons were injured. See "Crash Near Girdwood Closes Seward Highway," http://www.adn.com/2012/12/09/2718960/crash-near-girdwood-closes-seward.html.
It is not unusual following an accident for accident victims to receive phone calls or mailings promising "no charge" health care or a "no charge" seminar on their rights. Accident victims should be wary of these solicitations. A multiple victim accident such as this will trigger many legal issues. These include:
1. An investigation of the facts (Most often provided by the Alaska Trooper Report)
2. An assessment of the available liability insurance coverage. With multiple victims, this insurance may be inadequate to compensate each victim individually.
3. An assessment whether any of the victims may be accused of bearing partial responsibility. Most often, this is directed to the driver of the vehicle.
4. An assessment of injuries.
5. An assessment of losses.
6. An assessment of other insurance coverages such as Underinsured Motorist.
While these are the legal issues, the most important issue is recovery from injuries, something that is addressed by a physician, not a lawyer. I recommend that accident victims make medical treatment their highest priority, even higher priority than meeting with my office. When life deals you a low card in the form of an accident, you have to play your hand smartly. See www.Junelawyer.com.
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