Another Alaska Aviation Tragedy: What Can Victim Families Expect?

   Eight Alaska visitors have died in the crash of a Pro Mech flight seeing trip to the Misty Fjords National Monument near Ketchikan, Alaska.  The flight was an excursion sold through Holland America cruise lines and operated by Pro Mech Air.  Both Holland America and Pro Mech have expressed the traditional messages of concerns we have become used to hearing in the news.  See http://www.adn.com/article/20150625/8-tourists-pilot-dead-southeast-alaska-plane-crash.

   The accident fits a general pattern of Alaska aviation tragedies.  In winter months, it is the scheduled airlines that experience accidents while facing adverse winter weather.  In the summer months, the risk is higher for flightseeing operations who have a short window of time for their business catering to Alaska visitors.

   So what happens next?  Here is what I tell persons who call me immediately after tragedies like this.

1.  The Most Important Priority is Grieving.

   Whether it is a mother, father, sister, or brother, each of the families has lost a loved one.  The most important thing at this point in time is to honor the loved one and start the grieving process.  This means providing for funeral services and being alone with family.   I encourage clients to do nothing for 30 days.

2.   This Is Not a Shared Tragedy.

   While Pro Mech and Holland America may express concern and say otherwise, this is not a shared tragedy.  On the one hand, each visitor paid for a safe flight/visiting experience, and knew nothing about the dangers of a bad weather day in SouthEast Alaska.  On the other hand, Pro Mech and Holland America were conducting a business and made the conscious decision to dispatch the flight.   With prepaid excursions, there is always pressure not to cancel because of weather.

3.    Other than Logistics, There is No Reason to Have Contact with Pro Mech or Holland America.

    Corporate spokespersons and insurance adjusters often "reach out" to victim families.  Other than the logistics of transporting the loved one home and returning personal effects, there is no reason to have any contact with these businesses.  (There may be "Medical Payments Coverage" or "Funeral Expense Coverage" which may pay transportation expenses home).  While some of this outreach may, indeed, be well-intentioned, a less attractive motivation is damage control and to assess what can be done immediately during a time of grief to reduce the business cost of the tragedy later.

4.    Other than to Stop Contact with Pro Mech/Holland America, there is No Immediate Need to Contact a Lawyer.

   For the same reasons that I have said that the most important priority is grieving and there is no reason to contact Pro Mech/Holland America, there is also no immediate need to contact a lawyer.  The investigation of the crash will be conducted by the NTSB and there is little that a lawyer can do at this stage beyond gathering information.  When clients call me, I share my respect for their loss and promise to call them in 30 days.

   There are exceptions to this:  Hiring a lawyer is one way to stop or control contacts with the legally responsible corporations.  The other exception is if there is person with first hand knowledge of the circumstances of the pilot's departure decision.

5.    You Will Need a Lawyer.

   In my experience, the legally responsible corporations grossly simplify claims and  attempt to resolve claims so as to discourage lawyer involvement. One way or another, the help of a lawyer will be needed.

     In any death, there are probate issues and the grieving family works through the process of administering the will, distributing personal effects, the financial impact of the sudden tragedy, and other issues.  A big issue is often life insurance or other death benefits to help the family adjust to their new situation.  This all will require legal help.

   Another issue is valuation of the claim.  This will be a function of the victim's financial situation, his family situation, including not just spouses and children but also other potential dependents like parents and friends as well as the ages of these people.  This becomes complicated quickly.  Just as one hires an accountant or realtor for taxes or sale of a house, a lawyer will be needed to address these issues.   Without a proper valuation of a claim, it is impossible to make an informed decision as to what to do.

   Finally, in cases involving cruise passengers, the cruise "ticket" (often found in an online contract) may raise legal issues.  For example, it may require the filing of a lawsuit within 6 months or require suit in a specific state.

     My last piece of advice in times like this is to remind callers that this is a complicated card game.  They need to play the hand smartly.  See www.Junelawyer.com.

Why Your Boss Is The Best Witness In Your Case

   Clients regularly ask me who would be the best witness in your case.  Without hesitation, it is your boss.   While your spouse or your friends may know you better, it is the boss that is the most powerful witness at trial.

   Here are the reasons why.

   An important part of any case is showing how each client is different from the liars, cheaters, and malingers of the world.  We all have heard stories about people who are hurt and think they have somehow won the lottery.  At trial, the defense lawyers will always suggest that the accident victim could do more.  The strongest response to arguments like this is for a client to share how he has gone back to work.  Having the boss as a witness destroys this argument.

   The boss also sees the client more than any other person outside his home.  If the client has ongoing pain symptoms, the boss will be able to share this information with the jury.  More important, the boss will be able to share how the client's works despite the pain because of his work ethic.  Once again, this eliminates the defense arguments that the client is not doing everything possible to respond to his injury.

   Finally, unlike a spouse, a relative, or a friend, the boss cannot be accused of being biased.  When spouses testify, the defense lawyers will always minimize their testimony as being predictable due to marriage.  The testimony of friends will be minimized in the same way.  But with the boss, the bias goes the other way.  If the client is not doing his job, the boss will have no choice but to let him go.  As a result, the boss' testimony cannot be questioned.

  Clients can be reluctant to involve their bosses in their case because they consider it to be private and are worried about drawing unfair attention to themselves.  But here is the kicker:  if the boss doesn't testify for the client, the defense and insurer will call the boss anyway.  In other words, one way or another, someone is going to talk to the boss about the case.

  You have to play your hand smartly.  See www.Junelawyer.com

Why Is There Good Reason To Question the Credibility of Physicians Hired by Insurers and Defense Lawyers to Conduct "Independent Medical Examinations"

    The neutrality and objectivity of physicians in the business of "independent medical examinations" for defense lawyer is often questioned.  This recent experience explains why.

     A client suffered a work injury and was required to be attend an "independent medical examination."  The physician, a 77 year old retired orthopedist wrote a 16 page report and concluded that an accident had "aggravated" a pre-existing condition justifying the need for surgery.  In a second letter written 1 year later, he repeated these opinions verbatim.

    Last week, the defense lawyers noticed his deposition to perpetuate his testimony for trial.  Before the deposition, he refused to speak to me because of concern over the "legal protocol."  During the deposition, he shared that he had met 3 times with the defense lawyer, had been provided with medical records generated after his examination, and had been provided with the report of another colleague also hired by the defense lawyer.

   The end result was that his opinion had magically changed:  the injury that he had previously said was "related" was now "unrelated."

   Is there any wonder why accident victims require legal representation?  You have to play your hand smartly.  See www.Junelawyer.com.

How Does Your Computer and Phone Betray You?

   Insurance lawyers have increasingly become interested in computer files and phones.  Why is that?

   It turns out that computers and phone files contain "Metadata," unseen computer files that provide information.  Let me give some examples:  Photo files will contain data showing both the time and, possibly, even the place where a picture was taken.  A Word document may contain a prior draft comments before deletions.  And, of course, phones will have a list of who you talked/texted and dates of your actions.

   What to do?  Nothing because you cannot change this. But, if you are going to play your hand smartly, you need to know this is out there.  See  www.Junelawyer.com

What Happens When the Person Responsible for Harming You Has No Insurance?

   Clients often wonder why lawyers seem more interested in whether there is insurance than the facts of their injury and harms.   If someone else is clearly at fault, why does insurance matter?  If there is no way for the lawyer to collect money to compensate for losses, there is little a lawyer can do.

   Here is a cautionary tale.

   A client fell and broke his hip in an unmaintained apartment building.  All buildings secured by a mortgage are required to have insurance.

  Besides being a landlord, the building's owner operated a business.  All successful business people have insurance.

 The building's owner appeared to own a boat and other properties.  Certainly, a successful businessman could pay losses even if there was no insurance.

  It turns out there was no insurance on the apartment building, something which we confirmed by filing suit against the landlord.  It also turned out that the business man's prosperity was only on the surface.  His boat and other properties were not owned in his name.  His tax returns showed that he had spent what income he had unsuccessfully day trading. Other business documents showed that he owed money to many people. Trying to collect money from this landlord involuntarily meant standing in a long line and hoping that, once one got to the front, there would be money that could be found or something that could be sold. In itself, this explained why the apartments had been allowed to become run down.

  The solution in this case was to negotiate a payment plan with the landlord that allowed him to keep doing business to generate the cash to make the payments and that contained quick remedies if he failed to do so.   So far, he has made the first payment and I am keeping my fingers crossed that he keeps his promises to make future payments.

  In motor vehicle accident cases, there is another way to attack this problem.  Most people buy Underinsured Motorist Coverage to protect themselves from those on the road who break the law and choose not to buy insurance.  If you do not have this coverage, you should because it is more important to protect yourself from the other guy than to protect the other guy from you.

   You have to play your hand smartly.  See www.junelawyer.com.

What Happens at Mediation?

           At some point, most, if not all, of my clients participate in mediation.   Mediation is a meeting with a neutral party, often a retired judge, who attempts to facilitate settlement discussions.  The majority of cases settle as a result of mediation.  Some do not.   In many ways, it is like a trip to the used car sales lot where both sides have the opportunity to kick the tires, look under the hood, and share their opinions as to what the car, in this case, the claim, is worth.   Even if unsuccessful, I believe mediation is important because it gives the client a clear choice as to whether it is wise to go to trial or not.  Some choices are easy.  Some are not.  

            While I encourage clients to participate in mediation, I discourage optimism that mediation will lead to settlement.  Otherwise, the client is set up for disappointment and a belief that, regardless of the fairness of the offer, the case must settle even for an unsatisfactory low amount.    I always point out the unlimited number of reasons why cases do not settle, including:

1.      The insurance representative does not have sufficient information to value the case.

2.      The defense lawyer has not done the work necessary to value the case.

3.      Either the insurance representative or the defense lawyer has an unrealistic view of the case and the other person is unwilling to change that view.

4.      The insurer recognizes the potential value of the case but, if a jury finds a certain way, the case could be worth much less.

Like any trip to the sales car sales lot, sometimes an insurer may agree to a mediation just to test a client’s willingness to go to trial.  This happened to clients of mine recently when an insurer stuck to an unreasonable valuation position for most of a day.

            At the same time, I emphasize that my clients must know their case in order to decide whether settlement offers are sufficiently fair to justify not going to trial. This includes knowing:

           

1.      The strong parts of the case.

2.      The weak parts of the case (I call this “understanding how your case can be lost.”)

3.      The unknowns in a case, e.g., how a jury determines non-economic loss.

4.      The maximum amounts of losses that the evidence will support in a jury verdict.

5.      How a jury can award less than the amount of losses requested.

6.      The possibility that recovery can be reduced by fault on the part of the client.

7.      The risk of attorneys’ fees if recovery is less than what was offered in settlement.

8.      The costs and fees in the case so that the net recovery can be calculated.

9.      The pressure on the client to settle their case that is in all mediations.  They must be psychologically prepared to leave if the offers are unfairly low.

In the end, it is my goal to have the important decision of settlement made in the same way other important decisions,  like buying a house, are made, i.e., with thought and the maximum possible information.   In the case mentioned above, my clients did their analysis and decided to leave the used car sales lot without settling their case.

            You have to play your cards smartly.  See www.Junelawyer.com

            

What Is An Unseaworthy Condition?

   Commercial fisherman regularly ask me to explain the concept of "Unseaworthiness."  If an unseaworthy condition causes injury or death to a crewman, the vessel and its owner are legally responsible.

   "Unseaworthiness" doesn't mean something that makes a vessel sink (although a boat that does not float is unseaworthy).  Instead, it means that there is equipment on the boat that is not reasonably suitable for its intended purpose or does not function.  An example is a davit that breaks or an emergency shutoff switch that does not shut off the hydraulics.

   Today's Anchorage Daily News contains a good example.  A freon leak on a fishing vessel resulted in a man being hospitalized and another crewmember dying.  Freon systems on vessels are not supposed to leak.  Therefore, this is an unseaworthy condition and the vessel is legally responsible for the losses of these men.

You have to know the cards in order to lay your hand smartly.  See www.Junelawyer.com