May 28, 2013

Documenting Damages In A Serious Personal Injury Case

In a serious injury case, in order to achieve a just resolution for any client, it is obviously necessary that all damages caused by the incident be fully documented. In a typical automobile case where someone is seriously injured, as an example, there will typically be extensive medical bills and lost wages involved. The medical bills themselves, tax returns and W-2s, obviously, are pieces of evidence that can be used to document the extent of the damages. In addition to proof of “special damages” documentation of damages can also take the form or MRIs, X-rays, and other demonstrative exhibits which will show the extent of the injuries. Photographs can be used to graphically demonstrate injuries as well as can deposition testimony from treating physicians. In those cases where future damages are likely to be incurred, there has to be either medical or expert testimony offered in support of same. As an example, if a doctor testifies that someone is completely disabled from working, the tax returns showing their earning history would be evidence of the wages that likely will be lost in the future. An economist can be employed and/or a Life Care Planer to document the extent of the future lost wages and/or extent of future medical expenses assuming the medical treatment is likely to continue as well. In a wrongful death context, damages caused by the death of the decedent, of course, requires different considerations.

In a personal injury case arising from an automobile wreck, tractor-trailer collision, medical malpractice, products liability or otherwise, the key in obtaining a just result for any client is documenting as fully and completely as possible all damages sustained by the innocent party. The more documentation, the better in terms of proving the extent of the damages. The better the proof, the more likely it is that a jury will return a full and fair verdict compensating the injured individual. The better the documentation, the better the possibility of a settlement provided the insurance carrier for the at fault party is convinced that the damages documented fairly represent the damages sustained by the injured individual.

Obviously, in order to obtain a fair result for any client, it is necessary that experienced counsel be employed to do the job. The better the documentation, the more conscientious the attorney, the more likely it is that the result will be favorable to the client.

April 30, 2013

Should you Settle your Personal Injury Case??

The answer to this question is not an easy one to give. Some cases have clear liablity such as a drunk driver running a stop sign. Others have clear evidence of injury such as broken bones. Some cases have contested liability and some injuries are disputed based on pre-existing similar health issues. Either way, for the injured claimant, the key to acheiving justivce is to have experienced counsel. If liability can be proven and damages demonstrated to flow from the negligent acts involved, the case should only be setled if a fair offer of settlement is made. If not, the case should be presented to a jury by a good Trial Lawyer. If liabilty is contested and damages difficult to prove, sometimes such a case has to be tried as well--particularly if the parties cannot reach a compromse on the value of the claim.

The facts drive a case but facts have to be establhised. Using depositions and discovery wisely and strategically can enhance the settlement value of a good case and sometimes turn a contested case into a strong one. The more expereince counsel has, the more likely it is that facts can be marshalled to maximize the settlement value of any case.

The ultimate answer to the question posed therefore rests with the advice of expereinced and competent counsel. Liablity and damges can be assesssed by experienced counsel who can then advise the client on what would constitute a fair settlement value for their case. If a fair offer is made the case can be settled, but if a low offer is made, the case should probably should be presented to a jury absent financial or other countervailing reasons.

April 15, 2013

Legal Liability For Emergency Vehicle Negligence

In urban America it is not uncommon to see speeding government vehicles heading toward a variety of locations. Whether the emergency vehicle be a fire truck, an ambulance or police vehicle this is a common day occurrence in places like Atlanta. Regrettably, during some of these responses, the emergency vehicles collide with innocent motorists. When this happens, obviously, the issue is whether there is legal liability for the operator of the emergency vehicle/government.

Under O.C.G.A. § 40-6-6, emergency vehicles are permitted to disregard traffic rules and regulations otherwise in place. For example, if the speed limit is 35 miles per hour in a particular location, an emergency vehicle may disregard that speed limit, however, in order to do so, the emergency vehicle should display its lights and sirens and even when doing so must exercise “due regard” for the safety of the motoring public. Regrettably, this is not always done with the foreseeable result that innocent third parties at the wrong place at the wrong time are injured.

If a police vehicle is responding to a radio call for assistance at a suspected scene of a crime and the police vehicle is traveling in excess of the posted speed limit, unless the police vehicle has on emergency lights and siren and is otherwise exercising due regard for the safety of the motoring public, the government entity responsible for its operation can be held liable if an innocent person is injured or killed during a collision caused by the failure to exercise such due regard. Under Georgia law, there is a waiver of sovereign immunity for the negligent operation of governmental vehicles up to a maximum of $750,000.00. While many injuries and deaths due to governmental negligence can result in damages in excess of this statutory limit, nonetheless, currently, this is the extent of the waiver of sovereign immunity when it comes to the negligent operation of government vehicles.

Innocent persons injured during collisions with emergency vehicles do have rights and remedies under the current State of Georgia law. Sovereign immunity no longer absolutely bars such claims as it once did. However, the burden is still upon the innocent party to establish that the emergency vehicle transgressed the boundaries of the liberties given to it under Georgia law by failing to exercise their emergency lights and siren and/or by disregarding the due regard for the safety of the public.

January 17, 2013

Achieving Justice In A Personal Injury Case

Oftentimes clients like to refer to news articles about some substantial jury verdict or settlement in favor of a plaintiff in a particular case. Our advice when these comments are made is that it is very dangerous to compare apples to oranges. Literally speaking, no two cases are alike and it is difficult to compare one person’s case to another. On the other hand, the paramount goal of our attorneys is to make sure that our clients receive the best possible result given the facts of their particular case. Here, we like to compare apples to apples insofar as possible.

In order to achieve justice for our clients, we have to conduct an investigation of the facts, analyze all available and pertinent materials, compare them with the database of hundreds, if not thousands, of jury verdict research services concerning verdicts and settlements of similar cases in the past and then try to advise our clients what fair compensation would mean for their particular case. Each case has its own settlement value. If a case has clear liability such as a drunk driver running a stop sign and clear damages such as broken bones, which can be demonstrated with x-rays and other diagnostic tests, such a case is fairly easy to evaluate, however, if the case involves disputed issues of liability such as who ran the stop sign or who failed to yield and disputed issues of damages, such as did the plaintiff have a pre-existing back injury, was the back injury aggravated or is the back injury either new or non-existing injury, the case is more difficult to evaluate. As can be seen, the facts largely dictate what would constitute reasonable compensation for a particular case.

Our advice to our clients is that if they can get a settlement offer during settlement negotiations which is equivalent to or better than what a jury is likely to return in a verdict, then they should strongly consider accepting such an offer. If the offer made is less, in our judgment, than what a jury would likely award, then we usually advise our clients that they could consider rejecting such an offer. Oftentimes clients wish to settle cases even though we may not advise that they accept the offer and in some instances, clients want more than we recommend is reasonable.

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November 18, 2012

The Impact Of Pre-Existing Injuries On Personal Injury Cases

All experienced attorneys that practice in the personal injury field are familiar with insurance companies attempting to exploit prior injuries sustained by clients. The argument often used is that the injury caused in the car wreck, tractor-trailer accident, slip and fall incident, or other personal injury case was not caused by the negligence of the person being sued, but rather, that the victim of the negligence is simply malingering and/or claiming damages for a pre-existing injury. Insurance companies subpoena health records as far back as they can hoping to find some evidence of a prior similar complaint. For example, if someone is in a car accident and hurts their back or neck, if the insurance can find any evidence anywhere that the claimant previously complained of neck or back pain, the insurance company will always contend that the prior complaint has simply remanifested itself and that the car accident, truck accident or other tort simply had no bearing on the claimant’s health.

It is frustrating in the extreme to continually run against this common defense tactic. Experienced defense counsel are experts at obfuscation. They can make it sound as if the claimant, who was the innocent victim of the negligent acts of a third party, is simply trying to make someone else pay for a pre-existing condition. This is very rarely the case in my experience and the experience of the attorneys at this firm but, nonetheless, we encounter these arguments all the time. Thus, we have to overcome them by proving that the claimant had had no prior problems for many years, typically, had not needed to seek medical advice and that their acute injuries arose on the day of the incident and continued thereafter, caused by the acts of the defendant against whom the claim is being asserted.

The law is clear that even if someone has a pre-existing injury, they are entitled to compensation for any aggravation of their prior condition. Thus, even if the client did have a prior problem with their back, if their back was re-injured and/or if their pre-existing condition was aggravated, compensation is still allowed. Nonetheless, defense attorneys and insurance companies continue to contend that innocent victims of negligence actually are not injured at all but are simply seeking compensation they are not otherwise due. These arguments are extremely frustrating for innocent victims of the negligent acts of third parties which is why it is important in this context that experienced counsel be engaged to overcome this common defense tactic. If victims are not diligent in this regard, they can be denied justice simply due to an irrelevant modern day smoke screen.

November 10, 2012

Using The Glasgow Coma Scale To Determine The Severity Of Brain Injury

In many of our serious automobile collision cases we unfortunately find ourselves representing victims of a traumatically induced brain injury. During any serious car accident, unfortunately victims oftentimes strike their heads either on the seat or some other interior portion of the car. This can sometimes result in a loss of consciousness, confusion, dizziness or otherwise. When emergency personnel arrive at the scene of a serious wreck and diagnose those who appear to be confused or dazed, they typically use an assessment tool called the Glasgow Coma Scale (GCS). The scale comprises three different tests: eye opening, verbal responses and motor responses. The three values separately as well as their sum are considered. The lowest possible GCS sum is 3 which is a deep coma or near death while the highest is 15 (a fully awake person). A GCS score of 13 to 15 is usually considered as evidence of a mild traumatic brain injury whereas a score of 9 to 12 is considered evidence of a moderate brain injury. Any score of 8 or below is considered a severe brain injury.

Of course, any injury to the brain is a serious injury. Thus, the term “mild” traumatic brain injury is somewhat misleading. The term “mild” is used to describe the severity of the initial physical trauma that caused the injury. In no way does the term “mild” traumatic brain injury indicate the severity of the consequences of the injury.

While the Glasgow Coma Scale score is a useful tool in assessing whether the victim of a car accident has sustained a possible brain injury, nonetheless, it may or may not correlate with a person’s short or long term recovery or functional abilities following the injury.

As we have stated before, there does not have to be a loss of consciousness for a brain injury to occur. While a loss of consciousness certainly is a sign of a potential neurological problem, the brain can be injured without the loss of consciousness. Any change in cognitive functioning following a blow to the head whether it be confusion, dizziness or disorientation can be evidence of a brain injury even though the victim also does not lose consciousness. Using a Glasgow Coma Scale evaluation, the victim may not lose consciousness but nonetheless may have a mild to moderate brain injury depending on the GSC score.

November 3, 2012

Mild Traumatic Brain Injury: A Serious Problem

The term “mild” traumatic brain injury is very misleading. While the descriptor “mild” typically refers to the severity of the trauma that resulted in the injury, oftentimes in a personal injury context it does not come close to describing the severity of the consequences of the injury. Even though the trauma may be mild, the long term consequences of the injury may be anything other than mild and oftentimes are quite serious.

The vast majority of people who experience a mild traumatic brain injury recover. This is the good news. The bad news is that there is a percentage of persons who suffer trauma who never recover. The Centers For Disease Control has indicated that up to fifteen percent (15%) of patients diagnosed with a mild traumatic brain injury may have persistent and sometimes disabling long term problems.

Each year in the United States approximately 1.5 million Americans sustain traumatic brain injuries. 50,000 people die and over 230,000 people are hospitalized. More than 1 million are treated in emergency departments for traumatic brain injuries. It is estimated that over $56 billion is spent in direct and indirect costs as a result of TBIs. 80 - 90,000 Americans experience such significant problems that they have to go on disability.

The statistics cited from the Centers For Disease Control clearly indicate that traumatic brain injuries are a national and serious public health problem. Those fortunate enough to recover from their injuries can go on to live normal lives. However, those who experience long terms problems oftentimes have significant changes in their lives. They may suffer from persistent headaches, pain, cognitive and memory problems, changes in mood, confusion and the like. They may be unable to hold a job and they may suffer from personality changes. In short, the term “mild” traumatic brain injury for such individuals is a complete misnomer and truly does not describe the long term consequences they suffer.

October 24, 2012

What Is A Traumatic Brain Injury?

Traumatic brain injuries typically involve transient periods of some type of neurological dysfunction which can range from brief periods of confusion or dizziness to headaches and/or seizures, sometimes involving nausea. The term concussion is oftentimes used interchangeably with the term “mild traumatic brain injury” or MTBI. The Quality Standards Subcommittee of The American Academy of Neurology has recognized that concussions may occur without the loss of consciousness. There are three grades of concussions according The Academy of Neurology. A Grade 1 concussion involves transient confusion with no loss of consciousness where the symptoms resolve within 15 minutes. A Grade 2 concussion occurs where there is transient confusion and no loss of consciousness with other mental status abnormalities that last more than 15 minutes. A Grade 3 concussion is where there is a loss of consciousness either for a matter of seconds or minutes. As stated above, the term concussion sometimes is used interchangeably with the term “mild” traumatic brain injury (MTBI).

Experts from The Centers For Disease Control define a case of MTBI as “the occurrence of an injury to the head arising from blunt trauma or acceleration or deceleration forces with one or more of the following conditions attributable to the head injury: any period of observed or self-reported transient confusion, disorientation or impaired consciousness; dysfunction of memory around the time of injury; or loss of consciousness lasting less than 30 minutes.” MTBI may also include observed signs of other neurological or neuropsychological dysfunction such as seizures acutely following injury to the head; irritability, lethargy or vomiting following a head injury, headaches, dizziness, irritability, fatigue or poor concentration.

The leading cause of traumatic brain injuries in the United States is motor vehicle crashes. As we have written in prior entries, most cases of traumatic brain injuries resolve within a matter of weeks or months but a certain percentage of people (10-15%) suffer lifetime consequences. For those who suffer chronic and persistent problems, a traumatic brain injury can be a life altering event affecting all aspects of their daily living. The symptoms do not go away and disrupt the ability to work, sleep and concentrate. Debilitating headaches and fatigue can also be an problem. Victims of traumatic brain injury following a car accident - if lucky - will recover. If not, they will need an attorney as the long term consequences can be extremely significant for the victim and their families.

March 29, 2012

Tort Claims Against Local Government Employees

Here in Georgia, due to the doctrine of Sovereign Immunity, as we have posted before, it is very difficult to sue a local government employee. If a government employee commits a tort against an innocent third party and that person wishes to file a claim against the government employee, the government employee cannot be sued in his or her official capacity unless the employer of the government employee has waived its sovereign immunity. This is because any claim against the employee in his or her official capacity is considered by the Courts in Georgia to be equivalent to a claim against the government itself. Thus, absent a waiver of sovereign immunity, which is quite limited, there will be no claim against the employee in his or her official capacity.

If an employee is not acting within the scope of their discretionary authority and violates a ministerial duty, or acts with actual malice or intent to cause injury, or acts completely outside the scope of their employment, they can be held individually liable for torts against innocent third parties. There are a lot of qualifications in the law in this regard and it is not always easy to determine what constitutes a discretionary act as opposed to a ministerial duty. As long as there is a policy or procedure in place, which requires the execution of a simple task with definitive guidelines for the execution of that task, there is at least an argument to be made that the duty is ministerial in nature and therefore if the employee, by virtue of failing to perform such tasks, negligently causes harm to an innocent third party, then in that event, a valid claim can be asserted against the government employee individually. Otherwise, any claim against a government employee will be barred by the doctrine of Official Immunity because a government employee cannot be sued for discretionary acts performed in the course of their duties. One limited exception to this are automobile tort claims where there is a limited waiver of immunity. As might be expected, whether an employee can be successfully sued in an individual capacity is a factually specific inquiry.

February 24, 2012

Motorcycle Accidents And The Need For Uninsured Motorist Coverage

In those situations where motorcyclists are involved in automobile collisions, as might be imagined, the injuries sustained can be rather serious. There is no protection other than the helmet for the motorcycle rider. If a motorist fails to yield right-of-way to an oncoming motorcyclist and fails to yield, the results tragically can be either death or very serious injury. What compounds the tragedy is the case where the at fault motorist has either minimum limits of insurance or no insurance at all. In such circumstances, unless the motorcyclist has excellent uninsured/underinsured motorist coverage, the tragedy can be compounded simply because there is no available insurance to pay all medical bills, lost wages, and reimbursement for pain and suffering.

We recommend to virtually all of our clients that they carefully review their own insurance policies to make sure that they have adequate personal protection under their uninsured/underinsured motorist coverage. This coverage provides coverage for the injured insured as opposed to the other party whom the insured may be responsible for injuring. Unless the motorcyclist causes the accident, the liability coverage of motorcyclist will not be in play. However, if the motorcyclist is injured by the uninsured or underinsured driver, then it becomes all important.

A hypothetical will best prove our point in this context. A motorcyclist rides down the road and an uninsured driver runs a stop sign, striking and seriously injuring him/her. If the driver is either uninsured (no insurance at all), which is approximately 13 to 15% of all Georgia drivers because of today’s economic times, or underinsured (namely minimum limits of $25,000.00) and the injuries are serious, then the only way that the injured motorcyclist can expect to obtain recovery for the injuries and damages sustained is if he/she has available uninsured or underinsured motorist coverage under their own policy. The more coverage available under their own policy, the more likely they can obtain adequate compensation for their medical bills, lost wages and pain and suffering.

In cases where a trucking company is involved or an employee is on the job, typically, there is available sufficient liability insurance coverage to compensate a innocent injured motorcyclist in a collision caused by such individuals. In those cases where the motorcyclist is injured by the acts of an uninsured driver or one who is underinsured (with minimum limits) and the injuries are serious or death results, as might be imagined, it is very difficult to obtain justice for such a client under such circumstances. Accordingly, we strongly recommend that all motorcyclists carefully review their own insurance policies to make sure that they carry significant amounts of uninsured and underinsured motorist coverage commensurate with their budget and ability to provide such coverage for themselves. More than the average driver because of the lack of protection should they be in a collision, motorcyclists need such uninsured/underinsured insurance coverage for their own protection.

February 3, 2012

The Impact Of Divorce On Wrongful Death Actions

A divorce is traumatic in and of itself but becomes particularly tragic when either during the divorce or after its conclusion the wrongful death of a child occurs. In such circumstances, the wrongful death claim belongs to the parents jointly. Either one, therefore, has the right to bring the wrongful death claim but if one proceeds unilaterally in doing so, they do so in a fiduciary capacity, meaning that if they ever recover anything, they must hold the monies in trust until such time as a Court can apportion any monies awarded between the divorced parents based on their level of support with the child, their interaction with the child and other equitable factors.

Under Georgia law, if a child is killed due to the wrongful acts of a third party, such as a drunk driver, or a trucking company, the cause of action vests in the parents of the child. If the parents are in the middle of a divorce, this does not change the law. If the parents are already divorced, the law remains the same. In some such circumstances, both divorced parents get their lawyers and there is a race to the courthouse to see who files the lawsuit first. If one beats the other to the punch, the other may seek to join the case by formally intervening in the action. Since both spouses have a right to participate in the action, the difficulty this can cause is logistical because two separate law firms could be acting on behalf of the parents conducting redundant investigations and also having different views strategically as to how the case should be prosecuted and pursued. This can create a legal quagmire causing difficulties not only for both parents but also for their lawyers.

Insofar as is possible, the parties should work cooperatively together in pursuing a wrongful death claim of a child. If one proceeds all the way through a settlement or a jury verdict and ultimately obtains money, as indicated, that money must be held in trust and subject to equitable division by the court, unless the parties can agree among themselves how the money should be divided between them. While it might be assumed that a 50/50 split of any such recovery is the norm, there are many circumstances whereby such a split would not be just nor fair, such as situations where a father has abandoned a child and/or has failed to pay child support. As indicated above, these cases are particularly tragic and often difficult for all the parties. If a divorce has occurred, hopefully the parties will be mature enough to work together to pursue a common goal. If not, the attorneys for the respective parties will have to decide how to best work together to pursue that goal with an understanding that if there is ever a recovery, and a dispute over how the monies are to apportioned, that dispute must be submitted to a trial court for equitable apportionment.

January 29, 2012

The Impact of Pre-Existing Injuries On Personal Injury Case Evaluation

It is not uncommon in our practice to be asked to represent clients in automobile cases who have pre-existing conditions. The closer in time to an accident the pre-existing condition is, the more difficult it is to separate the proverbial “wheat from the chaff” and to prove that the client’s problems arising out of the current accident were either caused by that accident and/or were aggravated by it. While it is not necessary, as a matter of law, to prove that the new injury was solely caused by the new accident because compensation is available for aggravation of pre-existing injuries, the difficulty is that the defense can always argue that the new accident did not cause any new, nor aggravating injury, but that the old injury simply remained. The proof problems caused by such cases are very difficult and oftentimes clients do not appreciate the fact that juries are very skeptical of claims where the pre-existing injury is documented in medical records and appears either identical to or very similar to the injury complained of immediately following the new accident.

Lawyers make decisions about the value of any personal injury claim based on the evidence in any particular case. The evidence in pre-existing injury cases is often critical because if a medical record shows that a client already had a particular injury and had/or received medical care for an earlier injury, and then they are involved in another accident, the issue will be whether they had recovered from that injury, whether they were asymptomatic at the time of the new injury, or whether they were still suffering from the lingering effects of the prior injury. As might be imagined, all of these factors enter into case evaluation. Moreover, when it comes to a discussion of “proximate cause,” that being proving that the new accident actually caused a new injury or aggravated an earlier one, the calculus becomes extremely complex. Georgia juries, being inherently conservative, oftentimes return defense verdicts in cases where the pre-existing injury was identical to the newly claimed injury and the treatment for that old injury mirrored the new injury treatment in substantially similar respects.

Obviously, all cases must be judged on the evidence for that particular case as all such cases are factually specific. Nonetheless, there are some unique challenges that arise in the context of pre-existing injuries.

January 22, 2012

The Impact Of Contributory Negligence On A Personal Injury Claim

As lawyers we are often consulted by prospective clients inquiring about whether they “have a case.” Sometimes they do and sometimes they do not. Oftentimes those who do not have cases are themselves guilty of contributory negligence. In Georgia, this is a very difficult problem to overcome because typically juries are not as likely to award damages to someone who substantially contributed to their own injuries due to their own negligence.

A classic case of contributory negligence is where a motorist is approaching an intersection and decides to turn and while so doing is struck by a motorist coming from the opposite direction. While the speed of the oncoming motorist may have contributed to the collision, the failure to yield, obviously, is part of the equation. Had the client not failed to yield, notwithstanding the speed of the oncoming vehicle, the collision may have been avoided. If the speed was so great that the client understandably miscalculated whether they had time to make a turn, obviously, is a factually specific issue. However, in the hypothetical posed, one can readily see that juries might conclude that the motorist who failed to yield substantially contributed to their own injuries and therefore the speeding motorist might not be held accountable for the full extent of any damages sustained.

In Georgia, contributory negligence claims are submitted to the jury under instruction that if the plaintiff or the person seeking damages was themselves fifty percent (50%) or more responsible for the cause of any given accident then they recover nothing, no matter what their injuries are. If they are less than fifty percent (50%) negligent, they recover their damages reduced by a comparison of their negligence with the defendant who has been sued. Thus, if a jury were to conclude that the plaintiff was forty percent (40%) negligent then they would be entitled to recover sixty percent (60%) of their damages, whatever they might be.

In any case where liability is contested and the possibility of a contributory negligence defense exists, such a potential client should confer with experience counsel as soon as possible so that the liability aspects of the case can be properly investigated. If the contributory negligence can be eliminated as a potential defense, the chances of the injured client receiving full compensation for their damages is greatly increased.

January 18, 2012

Assessing Damages In Serious Burn Injury Cases

Unfortunately, in the normal course of our law practice, we have encountered clients who have sustained serious burn injuries. These cases are always extremely painful for clients and oftentimes results in permanent disfigurement. Indeed, a burn injury is one of the most painful injuries anyone can sustain and unfortunately we have seen them arise in a variety of contexts, whether it be gasoline fires after automobile accidents, accidents within the home due to defective products and/or chemical burns sustained on the job.

One of the complications of burn injury cases is trying to make sure that one has an accurate assessment of the future. While plastic surgery at present can eliminate some of the acute signs of injury, many times plastic surgery will be needed in the future. Oftentimes, despite the best care of plastic surgeons, permanent disfigurement may remain.

In assessing damages in a serious burn injury case, counsel must confer with the plastic surgeons responsible for the care and treatment of the client/patient to make sure that the client’s prognosis is well understood. The degree of permanent disfigurement, obviously, must be taken into consideration in assessing the damages for such clients as well as the impact on their overall quality of life and, usually, the high amount of medical expenses involved.

One of the very interesting parts of handling such cases is seeing the strength and character of those unfortunate enough to sustain such injuries. We have witnessed many serious injury clients handle themselves with grace, fortitude and strength of character when faced with a serious injury. Remarkably, many of these people are extremely courageous and show tremendous depth of character when overcoming such difficulties. It is a pleasure to help such clients in such difficult circumstances.

October 2, 2011

The Importance of Uninsured/Underinsured Motorist Coverage

We have written prior entries in our blog about the importance of uninsured/ underinsured motorist coverage. The importance of such coverage was underscored this week when we were contacted by clients who had been hit by driver of a stolen vehicle. This is a classic case where the at fault driver will not have insurance coverage. In this particular case the innocent victim caught up in this collision did not have uninsured/underinsured motorist coverage. Obviously, the stolen vehicle had no insurance coverage which provided coverage for the thieves. Thus, we have a case where there is no insurance available to address our client’s medical bills and expenses. Because the medical bills are in excess of $500,000.00 and growing, obviously, the injuries attendant to such high expenses were extremely serious as well. The client will be permanently impaired for life. The tragedy is that had the client had uninsured/underinsured motorist coverage, they could of at least had some measure of protection in this type of case.

The importance of this type of coverage arises in cases where the at fault driver has no insurance. Drunk drivers typically have no insurance. Teenagers joyriding in stolen cars have no insurance. People fleeing from the police at high speeds have no insurance typically. Drug addicts have no insurance and many people who are faced with today’s economic hardships let their insurance lapse and continue to drive. In short, there are a significant number of drivers on the road who (if they hit an innocent third party and cause an accident entirely because of their fault), will have no resources to provide coverage for the innocent victim. Therefore, the only way the victim can protect him or herself is to purchase uninsured/ underinsured motorist coverage in advance, at the time they purchase their own liability coverage.

We would urge all members of the public to carefully review the Declaration page of their policies. We are all required by law to carry liability insurance on our vehicles. This coverage protects, the person that we injure through our own negligent acts. However, in circumstances where we are injured by the acts of a third party, unless we have uninsured/ underinsured motorist coverage, we cannot protect ourselves from a case where the at fault driver has no coverage. As indicated by the case which was presented to us this week, this tragedy is compounded. When a person is seriously injured, permanently disabled for life and their life is utterly destroyed. They will never work again and if they are lucky enough to continue to live, they are going to be in need of medical care for the rest of their lives. And yet, there is no insurance anywhere to provide compensation for the innocent victim’s staggering losses. As lawyers, this is a very difficult situation because there is nothing we can do to help this person obtain recovery from the at fault driver. All that can be done in such cases typically is to make sure that the criminal authorities to put the offender in jail, but again, this provides little or no justice for the innocent victim and certainly no compensation for their injuries and damages.

September 18, 2011

How Do I Choose a Personal Injury Attorney?

Many clients choose their personal injury attorneys by watching the television or looking at billboards. Unfortunately, this does not always result in a client choosing the right attorney for his or her case. The best way to choose an attorney for a personal injury case is to make sure that the attorney selected is competent, professional and experienced. It is also important that the client determine that the lawyer being chosen has the ability to present the case to a jury if the case cannot be resolved by settlement and compromise.

Personal injury lawyers who most successfully represent their clients are those who are capable of presenting a case to a jury in an effective and professional manner. These lawyers are called Trial Lawyers. Personal injury lawyers who are Trial Lawyers are those who are most likely to get the best settlement results for their client in lieu of a trial. This is because insurance companies know that if they do not offer these lawyers fair and reasonable settlement offers that the lawyer will then present the case to a jury and get even more money. This is why they have to pay the value of the claim rather than trying to settle it cheap with a lawyer who does not know how to present the case to a jury. Accordingly, any client in a personal injury case should make sure that their attorney is capable of presenting their claims to a jury in a professional and competent manner and that they have experience trying cases.

Trial Lawyers always do a better job than those who do not know how to present a case to a jury or who have little or no experience doing so. Accordingly, clients would be well advised to ask how many jury trial their attorney has participated in as lead counsel so that they are comfortable with the fact that their attorney is capable of effectively representing their interests. Again, while the vast majority of all cases do settle, settlement amounts are influenced by a lawyer’s ability to effectively advocate claims. The more experienced the Trial Lawyer, typically, the better the settlement results in a personal injury case.

September 16, 2011

Assessing Damages In A Wrongful Death Case

We have written before about the unique provisions of Georgia law in the wrongful death context. If, due to the negligence of a third party, an innocent person is killed, the offending party is liable in damages for compensation for the “full value of the decedent.” The full value of the life of the decedent is comprised of both economic and non-economic components. Anytime some one is killed, they can no longer earn and labor and therefore all of the money they may have earned over the remaining portion of their working life has been taken from them. In addition, their one life to live has been taken from them and the non-economic intangible value of life itself, therefore, must be determined. Under Georgia law, both determinations are made from the perspective of the decedent, not from the perspective of the decedent’s family or surviving relatives.

The measure of damages for a wrongful death case in Georgia is, again, the “enlightened conscience” of fair and impartial jurors seeking to do justice in a particular case. By analyzing all the available evidence to determine both the economic and non-economic damages sustained in a particular case, jurors are faced with the task of determining the full value of the life of the decedent based on what the decedent lost at the time of his or her death. This can be a daunting task and therefore counsel must assist the jury in analyzing the various components of the decedent’s life, including their work history, their relationship with family members, the state of health, their age and other demographic factors. The younger the victim, the longer the life expectancy and therefore the greater the loss. While those who are negligently killed in the latter part of their lives also lose the balance of what the future held for them, the loss presumably would be less than a younger person because of the age difference. In either circumstance, however, the calculation to be made by the jury is to provide fair and reasonable compensation for the loss of life.

September 14, 2011

Quantifying Pain And Suffering In Personal Injury Cases

It is extremely difficult to quantify damages in a personal injury case. While medical bills can be totalled and lost wages calculated, trying to calculate damages for pain and suffering is a different matter. When one is out of work for months at a time suffering from back pain, as an example, the question is: how does one go about trying to determine what would constitute fair and reasonable compensation for the pain and suffering attendant to the injury? The longer one suffers, the greater the damage. The more excruciating the pain, the greater the damage. Because pain and suffering is subjective, however, it is often difficult to determine what damages would be fair in a particular case.

Many attorneys try to quantify pain and suffering based on a unit or hourly approach. If one is in pain and suffering sixteen hours out the day (assuming sleep for the other eight hours), what would constitute fair compensation for the extent of the pain and suffering: $10.00 an hour, $20.00 an hour, minimum wage or some other calculation?

In Georgia, in a personal injury context, the measure of damages for pain and suffering is the “enlightened conscience” of fair and impartial jurors. In other words, there is no measuring stick, per se, but rather a jury must determine money damages based on the totality of the circumstances involved in a particular case, that is what they believe would constitute fair and reasonable compensation for the pain and suffering element of a personal injury case.

In order to maximize damages in a personal injury case, it is important to show what the plaintiff could do before and after the injury, the extent of the disabling injury involved, the impact on daily life and the extent to which the victim was innocent in the premises and had the pain and suffering subjected upon them due to the negligence of the defendant. Oftentimes, the greater the liability the more willing the jury is to be generous in its pain and suffering calculations.

Because all personal injury cases are different, obviously, it is necessary for counsel for any client to carefully evaluate all of the factors involved in determining how to best present their client’s case to a jury in the event it cannot be settled. While reasonable minds may always differ as to what is fair and reasonable compensation in a particular case, if the case cannot be settled, the matter will have to be presented to a jury, who will then use their “enlightened consciences” to make such an award.

September 2, 2011

Suing The Postal Service For Personal Injuries

We have been contacted many times concerning tort claims against the U. S. Postal Service. Typically these involve personal injury claims arising out of motor vehicle collisions where a postal truck of some kind is involved. Sometimes it is the mail handler delivering the mail and sometimes it is a large tractor-trailer delivering mail between districts. In either circumstance, where one sustains an injury as a result of the negligent acts of a Postal Service employee, it is necessary that the claimant file a Standard Form 95 with the proper representatives of the Postal Service as a pre-condition to any suit that might later be brought. The reason is because all claims against the Postal Service are governed by the terms and procedures of the Federal Tort Claims Act, which are mandatory and jurisdictional. In short, if one does not comply with the terms of the Federal Torts Claim Act, the claim will be essentially forfeited.

39 C.F.R. part 912 provides that a claim should be submitted pre-suit to the Post Office where the accident occurred an/or to the Postal Service District Office where the accident occurred and also to the Chief Counsel National Tort Center in St. Louis, Missouri. 39 C.F.R. part 912 describes the information that must be included in the claim presentation, which again, must be filed pre-suit. Once the claim is filed with the Postal Service Tort Claims Division, then in that event, six months must elapse before suit can be filed. If the claim is denied and/or not ruled upon within six months, the claimant may file suit in Federal District Court but may only name the United States of America as the defendant.

Anyone who suffers an injury at the hands of a negligent Postal Service employee, whether by way of a motor vehicle accident or otherwise, should confer with counsel who has experience with the Federal Tort Claims Act. Again, there are jurisdictional pre-suit filing requirements that must be followed otherwise the claim can be lost due to a failure to follow the procedures of the Federal Tort Claims Act.

August 22, 2011

Trucking Accidents and Bad Weather

It is well known that large tractor-trailer trucks are very difficult to stop even when being operated prudently. Because of the weights on large tractor-trailers, if a tractor-trailer needs to suddenly stop for whatever reason, it takes much longer for the truck to stop than it would for the ordinary passenger vehicle. It is for this reason that regulations exist requiring trucks to slow down in inclement weather. Wet roads result in greater stopping distances for large tractor-trailer vehicles and thus, if it is raining, a prudent truck driver should slow his truck down one-third (1/3) of the normal speed. This is required by regulation and is required by common sense and safety considerations for the motoring public. Regrettably, far too often, truck drivers because of the need to deliver their loads and due to the economic pressures upon them, fail to slow down during inclement weather with the predictable result that accidents, which otherwise could have been avoided, occur with greater frequency.

All drivers regardless of whether they are operating passenger vehicles or tractor-trailer rigs need to slow down in inclement weather, whether it be wet weather, snowy weather or a mixture of sleet and rain. The fact is that such conditions are known to be dangerous to all drivers. Commercial drivers having a special license and being professionally employed to driver large trucks, which are harder to stop, have an extra special duty of care under such circumstances. Regrettably, we have seen first hand here at our firm far too many cases where innocent third parties are seriously injured or killed when truck drivers fail to slow down during inclement weather thus, causing significant carnage on the road when they plow into other cars impacted by their negligence. There is a reason we see signs that say “Speed Kills.” Speed during inclement weather kills more often thus, the need to slow down and the rationale for the regulations requiring a reduction in speed by one-third (1/3) of that typically in place.