Tuesday, December 24, 2013

Sometimes Trial Is The End of The Case. Sometimes, Trial Is Just Another Event

    I just finished a 2 week trial in a motor vehicle accident case ending on December 20.  After 5 years during which the case went up to the Alaska Supreme Court, the jury came back with a $1,430,000 verdict. While the verdict was good news for the client, the trial was also an exercise both in how challenging it is for a client's case to go to trial and how many pitfalls lie in trial.

    The case involved a 25 year old man who was a motor vehicle accident victim in a T-bone collision on December 31.  When other people were celebrating the New Year, he was in the emergency room.  Within a month, he had been diagnosed with herniated discs in his low back.  Within 6 months, he had been forced to undergo disc replacement surgery.  These injuries caused him to develop herniated discs in his neck 4 years later.   He made 2 unsuccessful attempts to go back to work.

    The trial show the lengths that an insurance company and defense lawyer would go to avoid payment.  Over the last 5 years, these have been the defenses.

1.   It is impossible for persons to be seriously injured in a T-bone collision.
2.   The client's injuries must have been the result of misjudgments by his physicians who were trying to help him recover.
3.   The client's problems must be related to the medications his physicians prescribed to control his pain.
4.   Because the client happened to occasionally play poker, he must be able to work.

   During trial, the insurer actually called a biomechanicist to testify that the forces of a T-bone collision were less  than walking down stairs or lifting up a box.  The biomechanicists earns his living giving this testimony.
The insurer also called a retired neurosurgeon to also testify that serious injury was not possible.  The surgeon, working part time, has earned hundreds of thousands of dollars from insurance companies giveing testimony like this.

   After a hard 10 days, the jury came back with its verdict.  While gratified, I have seen juries return verdicts that were much less compassionate under similar facts.  Sometimes, they believe the hired gun witnesses.

    As for the future, my client is waiting to see whether the insurer will now appeal.

    You have to play your hand well.

Monday, September 23, 2013

Trial Postponement: Why This is Frustrating for both Clients and Lawyers.

    Last Thursday, the Judge continued (postponed) a trial scheduled to start today (Monday) for 45 days.  The Defense did not want to go to trial.  Because Judges are never reversed for postponing trials (and sometimes reversed for refusing to postpone trial for a party that claims not to be ready), the postponement was granted.

    For the client, postponement is another frustrating event in a long process.  Psychologically ready for trial, the Client must regroup and prepare to fight another day.  In the meantime, the stress and uncertainty of  resolution that only a trial can bring to an end, continues.

    For the lawyer, postponement presents a series of events as the lawyer stands down in his trial preparations while, at the same time, beginning preparations for the new dates.  These steps include:

    1.    Notifying each and every witness who has made room in their schedules to testify that the trial is being postponed.

    2.   Working with the same witnesses to reserve time on the new date to testify.  It is not unusual to deal with scheduling conflicts on the new date.  This all has to be worked out.

    3.    Reviewing the Lawyer's Calendar to address scheduling conflicts on the new trial date.   With the trial case having the highest priority, this means addressing new dates for other cases.

    4.    Continuing to work on issues pertaining to exhibits that are not resolved simply by the postponement of trial.

    5.    Reviewing the status of other matters that were being put on hold because of the now-cancelled trial.

No matter what happens, one has to continue to play their hand smartly.  See www.Junelawyer.com


Monday, September 9, 2013

Preparing for Trial: Always a Surprise

    I am preparing for a trial in 2 weeks.  The case is straightforward in that my client was injured in a motor vehicle accident and there is no question that it was the other driver's fault.  Still, over the last 3 weeks, there has been a constant parade of filings by the defending lawyer, identifying new witnesses with questionable connections to the case, accusing my client of dishonesty, and accusing myself of misconduct.

    Why is this?  Here are some possible reasons.

1.  While it may seem that everything should be resolved prior to trial, there are regularly loose ends that have to be addressed.  This is part of the challenge of going to trial.  You have to keep your eye on the goal and move forward no matter what issue is raised.

2.    With legal responsibility unresolved, the defense lawyer has nothing else he can talk about.  All he can do is make molehills into mountains and raise innuendo.  Unfortunately, sometimes this is an effective strategy because juries can be fooled.

3.    Different lawyers have different standards of professionalism.  In this case, the opposing lawyers practice is to do this.

So, what does one tell the client under these circumstances:  When it comes to trial, expect the unexpected, be prepared for unpleasant "surprises" from the other side, respond to the best of your ability, and put your best foot forward.

    As always, the bottom line is to play the hand smartly to the best of your ability.  For clients, this is advice more easily given than followed.   See www.Junelawyer.com

Wednesday, July 31, 2013

What Is the Best Testimony An Accident Victim Can Hope For from a Coworker

   I was in San Pedro, California last week taking depositions of a former job superintendent and foreman on a construction site.  My client was a piledriver/welder.  This is the best testimony that a lawyer can hope to get from coworkers like this, particularly supervisors.

        "He was an excellent welder."

Testimony like this does more than support a claim for wage loss.  It bolsters the client's believability as a witness because good workers can be relied upon.

   The strongest witnesses for my client are usually not friends or family but job supervisors.

Thursday, June 6, 2013

What Cruise Ship Passengers Should Know After An Accident

  Todays' news reported a tragic accident in Southeast Alaska.   National Geographic tour passengers from the cruise ship, Seabird, were on a Pacific Wings DeHavilland Beaver that crashed into a mountainside.  The causes of the crash remain unknown but one man, a respected engineer from Los Alamos died and other passengers were seriously injured.  Because of the steepness of the mountainside, basically a cliff, the survivors were evacuated by use of a helicopter winch.

  Cruise passengers who become accident victims while on an excursion need to pay special attention.  Their claims can be treated differently from the claims of other accident victims to the detriment of the Cruise Passenger Accident Victims.

  The most important document affecting Cruise Passenger Accident Victims rights is the Ticket Contract.  The "ticket"is more than a stub, more than a boarding pass, and is long enough that you know it has been written by the cruise's lawyers.  Hard copies of the Ticket Contract may be provided passengers but, increasingly, the Ticket Contract is only provided online or electronically.  In the end, the Ticket Contract is written by the Cruise Company for the protection of Cruise Company if the Cruise Passenger has a dispute.

   The Ticket Contract commonly attempts to change Cruise Passenger Accident Victim rights in 3 ways.  One way is a Contractual Statute of Limitation.  The language of the Ticket Contract will require the Cruise Passenger Accident Victim to present a claim in a period shorter than Alaska's 2 year statute of limitation and I have seen periods as short as 6 months when the Cruise Passenger Accident Victim is focused on medical treatment and controlling his losses and before he is able to focus on compensation for those losses.  Interestingly, on one occasion, the Alaska Supreme Court ruled that this type of conduct is unenforceable. But there is no downside to the Cruise Company raising the defense and zealous advocacy will trump more humanitarian principles.  Because its better to avoid this defense if possible, the recommendation  for Cruise Passenger Accident Victims is to locate the Ticket Contract and know their rights.

   The second attempted change of the Ticket Contract is to require that any lawsuit be filed in a specific venue, forum, state or city.  For example Carribean cruise companies frequently require suit be filed in Miami and the passengers of the Italian cruise ship, Costa Concordia that ran aground with loss of life were required to file in a place in Italy.  Again, the recommendation for Cruise Passenger Accident Victims is to locate the Ticket Contract and know its requirements so that they can determine whether this provision is enforceable.

   The most disappointing provision in the Ticket Contract is often an attempt to deny legal responsibility for passenger excursions.  When one purchases a cruise, a passenger buys more than transportation on a boat.  The passenger buys the services of a professional organization to provide guidance as to appropriate and safe travel activities and to steer the traveller away from unsafe activities.  Excursions sold in conjunction with the cruise contain an implicit endorsement by the Cruise Company.   The Cruise Company's legal responsibility for the actions of its excursion partners will depend on the specific facts of the excursion, the written agreements with the excursion provider, and other facts.

    If you have the misfortune of being an accident victim, you have to play your hand smartly. See WWW.JUNELAWYER.COM.


Thursday, May 30, 2013

Why Clients Should Not Obsess About Invasive Discovery Requests

   In every case, the defense sends out standard discovery requests:  written questions called interrogatories and requests for documents.   The purpose of doing this is to get as much information about an accident victim as possible in the hopes of uncovering something that will cast doubt as to the accident victim's credibility, whether the accident victim has had similar injuries before, and the accident victim's earnings history.   Examples of these standard requests include the listing of every health care provider for the last 10 years and the name, address, and wage information for every employer.   The only way to respond to these efforts is to provide the information requested and recognize that the accident victim's past is basically an open book.

    Clients who are involved in a lawsuit for the first time are often overwhelmed both by the number of the requests, the detailed information being sought, and how far in the past information is being sought.  Here is what I tell Clients.

1.    With few exceptions, we answer all questions and provide all possible documents.   Because the Client is asking for money in compensation for injuries, the defense has the right to ask these questions.  If the Client  refuses to answer, the Client may be giving up any right to compensation.  More important, refusing to do so suggests that the Client has something to hide or lacks confidence in his case.

2.    Clients have nothing to hide.   To the extent that the questions focus on personal issues such as drug addiction or tax returns that have not been filed, I assure Clients that they are not the first persons to find themselves in this situation and that they have nothing to be embarassed about.  After all, it is the Client that was the victim of the defense's misconduct, not the other way around.   Clients should stand tall and stand proud.  Otherwise the defense wins.

3.    It is actually in the Client's interest to answer the questions and provide all possible documents.  Doing so creates new evidence to support the case, identifies new witnesses that are important, protects against overlooking issues, and, in the end, makes the case stronger. Never turn down the opportunity to make the case stronger.

4.   If the defense requests documents that the Client does not have, it is OK to say so.   So long as the Client has made a good faith effort to locate requested documents and confirm that, to the extent they may exist, the documents are not in the possession of the Client, there is no legal requirement that the Client needs to collect documents he does not possess.  All I ask Clients to do is to confirm whether they possess or control the documents or not.

5.  For the same reason, if the Client does not know a date or the address of a prior employer, it is also OK to say so.

The bottom line is that the Client should do everything possible both to eliminate any  excuse that the other side might have for not valuing the Client's case and to make certain that the strongest possible case is being presented.  If this includes providing information having nothing to do with the case, so be it.    The Client has to play his hand smartly.  See www.Junelawyer.com

Monday, May 20, 2013

Why Are Alaska Village Cases Challenging?

     I am in the process of finishing a case for a client from Wainwright, Alaska.  I also currently have cases involving accidents in Newtok, Kasiglok, and Kwigillingok.   Each of these communities are Alaska Native communities not accessible by the road system with small populations.    Even straightforward cases involving bush communities are challenging.  Here are a few of the reasons why. 

   Because the clients and witnesses live far away, in-person meetings are few and difficult to schedule.  There is no substitute for face-to-face meetings to discuss the legal and factual issues of a case.  If a client does not understand his case, locating witnesses, supporting evidence and making settlement decisions is more challenging. 

   The alternative to face-to face meetings is using the phone.  However, phone service to the smaller communities is not always reliable.  It is not uncommon to have to try several times before a connection is made.  If the person is not home, you may have no knowledge as to when he will be home. 

   In this day, people often maintain contact and send documents by e-mail.  However, internet service in the smaller communities operates either through phone lines or satellites and is slow. It is not uncommon for village residents to rely on community computers to check email which raises confidentiality issues.

   The last resort is always mail.  But mail delivery takes a week and can be to a General Delivery address which again raises issues of confidentiality.  If the mail requests a phone call or e-mail response, the concerns raised about these issues are raised again. 

   One is always reminded that the residents of small communities do not live the 8 to 5 existence.  Instead, they lead a subsistence life style which means that they can be gone to fish camp or may be hunting and fishing at night.  They "make hay when the sun shines" at different times than we do. 

   Trial becomes another challenge.  Just as it is challenging to communicate with clients, it is more challenging to locate and communicate with witnesses who do not have a direct interest in the case.  When trial comes, one also has to recognize the logistics of bringing the clients and witnesses to trial, including housing while in trial. Finally, one has to be careful with the costs which in the end are paid by the client. 

   The challenge is there but it can be met.  One just has to remember to play one's card hand smartly.  See www.Junelawyer.com


Tuesday, April 9, 2013

Why Its Important for the Lawyer to Speak to Witnesses

   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

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  

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


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. GEICOhttp://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