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Who Is Right? Know Your Right of Way in California

With the introduction of automobiles, humans had to figure out a new method for ensuring that everyone knew where they could and could not go and when.  In addition to horns and turn signals to be used to let others know our intentions or problems with another driver, we devised a set of rules that everyone on the road is supposed to (but does not always) follow.  It is through these rules that we attempt to control the chaos of 1,000-to-3,000-pound objects hurtling towards us at high speed and avoid becoming a demolition derby.  

Some of these rules are obvious.  Stop at the stop sign or the red light.  Go at the green light and stay on the right side of the road.  Other rules are more confusing with the most confounding for drivers being those of yielding and right of way.  Everyone seems to have a different take on the situation depending on where they learned how to drive or their general lack of understanding of the rules of the road. This is particularly true in California.

 The 4-Way Stop

So, let’s start with the simple one: the four way stop.  In California, your must yield to traffic including bicyclists and/or pedestrians who are already in the intersection.  After that, whoever gets to the intersection first has the right of way to proceed.  If you land at the intersection at the same time as another driver, YOU must yield to whoever is on your right – be it vehicle, bicycle, or pedestrian. 

Intersections with flashing traffic signals that are malfunctioning should also be treated as four-way stops.  When drivers approaching a highway are faced with a flashing yellow light, they must slow down and yield to the traffic on the highway before moving through the intersection.  If there are flashing red lights, the driver must stop completely before proceeding into the intersection.  

 Up and Down Hills

On mountain roads that may not be wide enough to accommodate two vehicles at the same time, the vehicle going down the hill must yield to the vehicle going up the hill.  In fact, California law requires that the vehicle going down the hill to back up when necessary to allow the vehicle going uphill to pass.  

 Roundabouts (Traffic Circles)

Roundabouts or traffic circles should be more intuitive but for drivers who have never encountered one, they can be dangerously confusing.  The key is to slow down when approaching the traffic circle and yield to whatever traffic is in the circle already.  When you see an opening, you can proceed to the right and go counterclockwise around the circle until you reach your exit.  

 On-Ramps

Another potential quagmire of confusion is the highway on-ramp where two opposing lanes of traffic merge into one.  The general rule of thumb is that the lane with a light gets the right of way over another lane where the traffic is turning right onto the ramp.  

When exiting a parking lot, you must yield to the traffic on the feeder road and those on the feeder road must yield to those on the main road.  

 Pedestrian’s Right of Way

While no one walks in L.A. usually, drivers must be familiar with pedestrians’ right of way under California law.  As a matter of course, pedestrians do not have a blanket right of way.  First, though, let’s discuss who is a pedestrian.  Certainly, people walking fit squarely into the definition but in California so does someone in a motorized wheelchair, a skateboarder, skiers, ice skaters, people using non-electric scooters, people on roller skates or roller blades, and people in wheelchairs.  On the other hand, people riding bikes, motorized scooters, or hoverboards are all considered to be vehicles, not pedestrians.  

Generally, California law requires vehicles to yield the right-of-way to pedestrians in marked crosswalks and unmarked crosswalks at intersections. 

This begs the question of what constitutes a “crosswalk.” California defines a crosswalk as “the portion of roadway of an intersection which represents extensions of the sidewalk lines, or any portion of the roadway distinctly indicated for pedestrian crossing.” Marked crosswalks usually have two solid white or yellow lines connecting the two portions of sidewalks being traversed.  Unmarked crosswalks are just what they sound like: crosswalks without markings.  However, this does not mean that they are still not crosswalks for which drivers need to yield to pedestrians.  

Pedestrians are not without their own obligations, however, when it comes to using crosswalks.  Under California law, they must exercise a duty of care for their own safety.  This means that they cannot suddenly leave the curb or other place of safety and walk or run into the path of a vehicle so as to constitute an immediate hazard. They also cannot unnecessarily stop or delay traffic in a crosswalk, marked or unmarked.  

They also cannot walk in a bike lane when there is sidewalk or walking path available to them, walking outside of the crosswalk, and cross against a traffic signal or when the walk signal is not illuminated. Pedestrians who do not follow these rules are considered to not have the right of way which can be important if they cause or contribute to an accident.  This can be used to make them shoulder some or all of the liability for the accident.  

What about blind pedestrians?  If the pedestrian is using a white cane or has a guide dog, drivers must take all reasonably necessary precautions to avoid hitting or coming near them.  Failure to do so is a misdemeanor subject to jail time and/or a fine.  

Rights of way can be confusing and failure to properly yield when driving can result in serious and sometimes fatal accidents. The best offense in this case is to be thoroughly aware of the rules before venturing out onto the road.  If you should find yourself a victim of someone’s failure to yield the right of way, the best defense is to immediately contact a competent and skilled Los Angeles personal injury attorney who can assist you in getting the maximum recovery you deserve.  

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Lost Wages and Lost Earning Capacity Are Not the Same

When you are involved in an accident and are injured, one of the most fundamental questions that is up to a judge or jury to answer is the amount of your damages from the accident.  As we’ve discussed before, there are numerous types of damages associated with a personal injury claim including property damage to the car, damages related to medical bills, and loss of the use of property such as the car that was hit.

However, one area of damages can be particularly confusing: lost wages and loss of earning capacity.  Both involve money that is earned so why are they different? The key difference is when the money is earned or to be earned.  

Loss of wages covers money that would have been earned by the person who was injured. The person was obviously not in a position to earn a wage because they were recuperating from the accident that was caused by the negligence of another person.  Typically, there is a delay of months, and sometimes a year or more, from the time the accident occurred to when the suit is settled or a judgment is issued. During that time, the injured party may not be able to work at all or may work on a reduced schedule.  Lost wages cover what the person would have made had they not been injured and could have kept working.  Of course, if a person was unemployed at the time of the accident, they would not be entitled to lost wages.  

Damages related to loss of wages cover a surprisingly comprehensive group of earning categories including of course wages – whether those are hourly or on a salaried basis – as well as overtime and extraneous wages such as commissions and bonuses.  They also include health care benefits, sick leave, and personal or annual leave.  Loss of income from a business can also be considered if the injured party is the owner or operator and relies on their business to earn money. The key to remembering that these all belong in the lost wages category is that they occurred in the past.  

Loss of earning capacity, on the other hand, is solely concerned with future losses.  It is attempting to put a dollar figure on what the injured person could have earned had they not been injured.  The same categories of earnings covered by loss of wages are also included in loss of earning capacity including hourly or salary earnings, benefits such as additional per diem payments or health care coverage, and commissions and bonuses as well as leave.  It also includes, however, future-leaning monies such as stock options and matching options for 401K and profit-sharing plans.  

Proving these losses can be straightforward.  For loss of wages, the proof comes from records from the person’s job showing their earnings, bonuses, and commissions.  If the person runs a business or is otherwise self-employed, their own records would be used to show how much they would have made during that period had they not been injured.  

However, proving loss of earning capacity is trickier as it essentially requires the creation of an alternative story wherein the person who was injured was never injured and continued to work and to earn. This story is not plucked out of thin air either but requires the help of numerous experts including vocational experts, economists, actuaries, and medical professionals.  It is absolutely critical to have a skilled and knowledgeable car accident attorney involved in this process to ensure that your story is accurately told.

The experts will work to answer numerous questions to get the fullest possible picture of what the person’s earning capacity would have been had they not been injured and taken out of the workforce. The experts must testify as to how the injuries prevent the person from working at their previous job or in their prior profession, how much the person would have earned without the accident, how long the person would have worked, and what types of jobs the person would have been able to get depending on their field or industry.  

They must take into account numerous factors such as how old the person was at the time of the accident and their life expectancy, the person’s employment status at the time of the accident, the person’s education and training, their plans for future employment, and the nature of their field or industry.  This means also that individuals who are unemployed at the time of the accident can seek loss of earning capacity, particularly if they were highly trained or had in-demand skills.  

From all of these experts’ testimonies, the highly proficient and competent Los Angeles car accident attorney will weave together a narrative of what the person’s life could have been like had they not been injured by the negligence of the party that caused the accident. As much as you can assign value to a life not yet lived, this is exactly what the process of determining loss of earning capacity will attempt to do.  The key here is to answer the question of not what the person would have earned but what they could have earned.  

Of course, the sky is not the limit here. If the injured person was a welder or a bus driver, it would be unlikely that they could claim future earnings like that of a best-selling novelist.  The future earnings damages must reflect what was reasonably probable for the person to earn based on reasonable and projected career options.

As with all damages in a personal injury case, the goal is to restore the person back to their former self by putting a dollar sign on the value of this hypothetical future life.  The best way to ensure that you are as completely compensated as possible for your injuries is to make sure you have a seasoned and highly competent Los Angeles car accident attorney by your side through every step of the process.  

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What You Need to Know About Wrongful Death & Survival Claims in California

When a loved one is killed in an accident, there are numerous considerations for the survivors ranging from handling the funeral and burial to managing the distribution of the person’s estate. However, there is one thing that the decedent’s survivors also need to consider: whether to bring a wrongful death action and/or a survival action against the person or persons who caused the accident that killed their loved one.  

A wrongful death claim essentially seeks to place blame and liability for the death of the victim squarely on the shoulders of the person or persons who caused the accident that resulted in the death. It does not matter if the death was intentional or caused by reckless or negligent behavior. ��

Some examples of wrongful acts that would subject someone to a wrongful death claim include:

· Driving under the influence and hitting another car or pedestrian

· Speeding and driving recklessly causing an accident

· Driving distracted such as texting while driving resulting in an accident

Wrongful death actions also include non-vehicular deaths such as medical malpractice, elder abuse or neglect, and drownings.  

The purpose of the wrongful death suit is to compensate the survivors of the decedent for what the decedent would have provided to them as support if they had lived. In California, a wrongful death suit can be brought to seek payment for funeral and burial expenses, the decedent’s lost income, and pain, suffering, and disfigurement of the decedent.  The survivors can also seek non-economic damages such as compensation for loss of companionship, protection, moral support, training and guidance, and affection that the decedent would have provided if they had lived.  

Notably, wrongful death actions cannot be used to seek punitive damages unless the decedent was killed as the result of a felony homicide and the defendant was convicted of the crime.  Otherwise, punitive damages must be sought through a survival action which we will discuss below.

While it is up to the survivors to provide evidence in support of the amount that the decedent would have made had they lived, the final determination of the actual dollar amount of the damages is up to the jury or the judge based on the evidence and common sense.  Judgments can be paid as lump sum amounts or in structured settlements that pay out over time.  

California law does limit who can file a wrongful death suit to the heirs of the decedent, specifically the surviving spouse, domestic partner, and children of the decedent if they would be eligible to bring such a suit.  Also, putative spouses – those who thought they had a valid marriage to the decedent but did not, children of the putative spouse, stepchildren, and parents may have the right to bring a wrongful death action if they were dependent on the decedent. Minors who were not necessarily related to the decedent but who lived in the decedent’s home at the time of their death, had lived there for the previous 180 days, and were dependent on the decedent for at least one-half of their support would also have standing to bring a wrongful death suit.

Statute of Limitations

As with all claims, however, there is a statute of limitations or a limited time in which a claim must be filed in order for the estate to recover.  Typically, a wrongful death claim must be filed within two years which starts from the date of the decedent’s death.  However, there may be times when the decedent’s heirs do not find out about the death of the decedent.  In this case, the two-year period starts from when they discover that the decedent has died, rather than the date of the death.  If a minor is suing for the death of a parent, they must bring the suit within two years of when they turn 18 or by their 20th birthday.  

In wrongful death actions against a municipality, city, county, state agency or the state government in general the statute of limitations is curtailed to six months. Again, it is critical to reach out as soon as possible to an experienced California personal injury attorney who is very familiar with wrongful death suits to ensure that you meet all of the statute of limitations requirements.  

 Survival Action

A related cause of action that might also be available to the survivors is a survival action.  The survival action is designed to compensate the decedent’s survivors for the decedent’s losses that they incurred prior to their death. It usually seeks to recover damages including medical bills, lost wages, and property damage of the decedent due to the accident that also caused their death.  Survival actions and wrongful death claims are often filed together to maximize the options of the survivors and estate of the decedent.

The survival action is viable so long as the victim survived the accident long enough to suffer even a minimal amount of economic loss.  For example, a person in a car accident who ends up in a coma before dying sustained significant economic loss prior to their death due to the accident for which their family could file a survival action.  Someone who dies in the back of an ambulance after being hit by a car will have that necessary minimal amount of economic loss even for the minutes between the accident and when they were declared dead.  

Survival actions are also attractive because they allow for punitive damages which is typically not an option with wrongful death suits.  They also have slightly different statutes of limitations requirements than wrongful death suits.  A survival action must be brought within two years of the accident or six months after the death of the decedent, whichever is later.  

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Who Is Responsible for Guardrail Accidents?

Guardrails are, by design, intended to save lives. They are there to prevent a careening vehicle from either entering oncoming traffic, going over a bridge or overpass, or hitting something far more dangerous. However, as with all things man made, guardrails are not perfect. In fact, sometimes they are designed or installed in such a way that they are defective and can fail to stop the accident they were supposed to prevent.  

Given the high speeds at which cars or trucks usually encounter guardrails, any defect in the design, manufacturing, or installation of them will come with significant injuries and consequences.  The injuries that can result from these types of crashes range from the minor to the catastrophic.  It is not uncommon to see injuries from flying glass and back injuries to broken bones and concussions.  Other injuries can include loss of a limb, electrical burns, internal bleeding, and paralysis.  Any of these injuries can mean that the person can no longer work or be a successful member of society.  

While guardrails are designed to telescope when hit and thus still protect the victim, it is also possible that they will fail in this critical mission. The vehicle could crash through the guardrail which could puncture the front windshield, hurting or even killing the driver or passenger.  The vehicle could end up bypassing the guardrail all together resulting in a high-speed front-end collision.  Worse still, the car could go over a bridge or overpass leading to almost certain death. In short, guardrail crashes are probably some of the most serious accidents that can occur.

The question of who is at fault when there is a guardrail accident is surprisingly not immediately obvious.  There could be myriad reasons for the person’s car hitting the guardrail such as the person’s tire blew out causing them to swerve into the guardrail.  This could involve suing the manufacturer of the tires and/or the car manufacturer.  Another possible cause could be another driver forcing the car into the guardrail to avoid a collision meaning the other driver should be sued.  Still another possibility is the driver going too fast in unsafe weather conditions.  Even the design of the road itself can be a contributing factor.  For example, perhaps it was designed years ago for less traffic and lower speeds than what it is used for today.

Another possible responsible party is the construction firm that installed the guardrails and the engineering firm that designed them.  It could even come down to an individual working for the installation company who did not follow proper procedure.  Depending upon how old the guardrail is, the original companies could be out of business requiring even more digging to find out who is their successor and if they could be held responsible.  

The sheer complexity of the question of who is at fault means that it is imperative to have a qualified and skilled Los Angeles car accident attorney at your side from the very beginning to help you navigate the field.  If you leave out even one possible responsible party, that could mean a significantly lower payout in damages.  Remember also that each responsible party may need to be charged under a different theory of liability.  For example, a driver who runs someone off the road and into a guardrail should face negligence charges while a guardrail manufacturer should probably face product liability charges.  This is yet another level of complexity in determining fault that must absolutely be left in the hands of an experienced and competent car accident attorney.  

In addition to the private third party possible responsible parties, consider also that the city, state, or federal government may be at fault for the accident by their maintenance – or lack thereof – of the guardrail or road.  The government entity that is responsible for a particular section of road and its guardrails has a duty of care to keep that section of road and guardrail in a reasonably safe condition and to fix known safety hazards on the road.  However, even identifying which government entity is responsible for a particular road, bridge, or section of highway is incredibly complex and requires the skills of experienced counsel.

Moreover, once you have identified the relevant municipal authority, there are different time frames and requirements for bringing accident claims against the different authorities. While generally, the time frame in which to file a claim in California for most personal injury and wrongful death suits is two years, claims against the government follow different rules which could require that you file no later than six months after the accident.  Your personal injury attorney will guide you to ensure that you do not let any possible claims lapse.  

Once you’ve identified all of the possible responsible parties, the type of claim that you file will depend a great deal on the level of injuries you or your loved one sustained.  If the person died in the accident, then you would bring a wrongful death action against the responsible parties to sue for damages including funeral expenses and loss of income.  You can also seek damages for loss of companionship.  

If the person was not killed, there could still be significant injuries requiring long term treatment including surgery.  You can also seek damages for the cost of continuing medical care, loss of income during the time that you could not work because of your injuries, loss of future income if the accident was disabling, compensation for the loss of a limb, pain and suffering, and emotional damages.  

In short, guardrail accidents are usually amongst the most serious of car accidents, but they are also very complicated. Between determining the appropriate parties to sue and the appropriate damages to sue for, it can be incredibly confusing.  Therefore, it is essential to have a skilled, qualified, and experienced Los Angeles-area legal counsel to help you every step of the way.

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How is Car Accident Fault Determined in California?

Fault is a loaded word in California.  Not only is it important to find faults to predict earthquakes, it is also imperative to find who is at fault when there has been a car accident to ensure that the right person is made to pay.  But where finding earthquake faults is a science, finding who is at fault in an accident is an art.

So why is finding fault so important? California is what is known as an “at-fault” state meaning that for someone to recover due compensation from their or the other driver’s insurance company, they have to show that the other party was at fault in the accident.  Given how expensive car accidents can be it is imperative that the appropriate allocation of fault is made to ensure that no one ends up paying or receiving more than they are responsible for.

This leads to the next question which is who determines who is at fault?  Initially, this is done by the police if they are called.  For most accidents, the police will investigate the accident and write up an official report.  In that report, the officer may give a professional opinion as to who was at fault for the accident.  Even if they do not provide this, however, the official report can still be very helpful because it will provide information about the accident including whether any of the drivers violated a provision of the California Vehicle Code. Keep in mind, however, that there are times when the police get it wrong – either because they were given misinformation or were unable to get enough information.  This is why it is critical to contact a competent Los Angeles personal injury attorney from the very start, even if you have a police report in hand.

Another arbiter of fault is the insurance company. If you make a claim against the other driver’s insurance policy, the insurer is not going to simply hand over a check.  They will conduct their own investigation to determine who was at fault, especially if it means that they may have to pay out on behalf of their insured.  The insurer is not necessarily on your side. They are on the side of the other driver and can easily deny that their policy holder was at fault, or they may find that their fault is less than it was meaning you do not get as much money as you were entitled to.  Again, this is why it is crucial to have an experienced California personal injury attorney in your corner from the start.  In the end, the answer to who caused the accident may be reached using the police report, the insurance company’s investigation, and your attorney’s own fact finding.  

Once you determine who caused the accident, there are two ways to show that someone was at fault for an accident: statutory negligence and common law negligence.  They are mutually exclusive so each accident will fit into one of the categories but not both.

 Statutory Negligence

Of the two, statutory negligence is the easier path because you can make the case by showing that the other party violated a provision of the California Vehicle Code or another law.  This is where the police report is particularly useful because it is hard to ignore when an officer notes that the other driver violated a law.  Once you have established that the other driver violated a law, the burden of proof shifts squarely on their shoulders to prove that they did not.  With a police report saying they did, this could be difficult.  

Even without a police report, however, there are other ways to prove that someone violated a law.  Many people now drive with cameras in their cars that can also track how fast someone was going – either the driver or the other car. Also, some insurance companies now reward their drivers if they agree to have monitoring equipment in their car that tracks their speed to ensure they are driving safely.  If the other driver is using this technology, it is imperative to have a skilled California personal injury attorney on your side to subpoena those records since it is not necessarily a given that the insurance company would hand them over.

Common Law Negligence

The less easy path, but one that may be your only option is common law negligence.  This is the standard formula for determining fault in just about every tort.

1.     You must show that the other driver had a duty to drive with reasonable care, i.e., not speeding, not weaving through traffic, etc.

2.     You must show that they breached that duty as in they did not drive with reasonable care.  

3.     You must show that their failure to drive with reasonable care was the direct cause of the accident.  

4.     You must show that you were injured by the accident.  

Once you have established these four elements, you have established common law negligence on the part of the other driver.  

 What Is Comparative Fault?

What if you were both somewhat responsible for the accident?  This is called comparative fault and lies squarely in the middle of the Venn diagram of statutory and common law negligence.  It is also usually why personal injury cases require experienced PI attorneys to sort them out because even what appears to be a straightforward rear-end accident case can turn out to be a comparative fault situation.    

  Comparative fault is all about apportioning the blame and liability for the accident between and amongst the parties who were involved. It can mean the difference between a 100 percent pay out and a 50 percent pay out if it is determined that your driving also was a factor in the accident.  This is where the police reports, insurance investigations, and discovery that your PI attorney performs will go a long way to ferreting out the exact degree of your liability to ensure that you do not lose any more of your payout than you absolutely must.

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What You Need to Know About Medical Liens in Personal Injury Cases

There is no argument that car accidents are incredibly inconvenient for everyone involved. When there are injuries involved, however, the disruption caused by the accident is increased exponentially. For accident victims who have health insurance, the ability to secure necessary care is not significantly impacted and the insurer will work behind the scenes to recoup the funds they are owed for the care from the person who caused the accident.

 However, for victims who lack health insurance – either private or through Medicare or Medi-Cal – or who do not have no-fault insurance, who cannot afford deductibles, or cannot afford to wait until the case is settled, the ability to access the necessary health care is compromised. There is an option, however, that allows these victims to get the care they need: a medical lien.

 Essentially, a medical lien is a contract between the health care provider and the accident victim whereby the provider agrees to treat the victim and wait for payment until the claim is resolved.

 Medical liens are serious contracts that are binding, however, as providers want assurances that they will be able to recover their costs at the end of the litigation. The best way to find a provider who will enter into a medical lien is through a qualified, connected, and veteran Los Angeles car accident attorney. The attorney can give the provider assurances as to the strength of your case and the chances of recouping their money when the case is settled.

 Of course, the provider does not have to enter into the lien, so it is all the more critical to find a skilled and experienced car accident attorney who knows of multiple providers who would be amenable to a medical lien.  

 Your attorney should help you review and understand the medical lien as well as your rights and obligations as it is a binding contract.  The attorney can also help you negotiate certain provisions when necessary and work with the insurance company to craft a lien that is fair to both parties. Once the parties agree on the terms, the medical lien is signed and the provider notifies the insurance companies of the lien – in a practice known as perfecting the lien.  The lien is now in effect and the provider is contractually obligated to provide you with the services that you have agreed upon.

 Ideally, you win your case and are awarded a settlement that is sufficient to pay your provider and compensate you for your injuries and damages. But what happens if you lose or if you are not awarded enough to pay back the provider? The contract could dictate that you are on the hook for those expenses. And, if you are, like any other debt the medical provider will have access to all available remedies under California law including filing suit to recover the money. While the law typically requires the provider to sue for the balance within four years, many medical liens stipulate that the money the provider fronts to the victim is held in trust by the victim and thus is not subject to any statute of limitations. This means that the victim could be sued at any time, even after four years.

 There is good news, however, which is that a skilled and experienced Los Angeles car accident attorney can help negotiate a reduction in the overall amount owed and/or a payment plan to allow you to pay the money back over time. Remember that most doctors and hospitals are not particularly excited about taking you to court or to arbitration and so should be amenable to negotiations of this type. They are most interested in recouping something rather than nothing.

 Remember also that you cannot necessarily count on large medical bills translating into a larger settlement.  A typical settlement offer or award will use the value of the doctor’s services – which is often based on the lowest rate an insurer will pay – rather than what the patient pays under the medical lien.

 If you are insured through Medi-Cal, the system creates a medical lien on its own without negotiating with the provider through the Department of Health Care Services Personal Injury Program. Medi-Cal is allowed to insert itself into your suit against the other driver, bring its own claim against the other driver, and pursue its lien against your settlement.  Given these broad powers awarded to DHCS it is imperative to have a competent and experienced Los Angeles car accident lawyer assist you with your case to help protect your settlement and ensure that you are still left with a good amount of the money.  

 Medical liens serve an important purpose for individuals who are injured through no fault of their own in a car accident but who are not able to afford their medical care or who do not have medical insurance. However, they are designed only to be used in these situations. If the victim has private health insurance, they will almost always come out ahead by going through their own insurer since the pre-negotiated fees charged by providers under their plan will almost certainly be lower than what would be charged if there were a medical lien. Also, a medical lien is a binding contract and represents a significant obligation on the victim if they lose their case or are awarded an insufficient amount to cover all of their expenses and damages.

  Being injured in a car accident is already a burden and is even more burdensome when you do not have health insurance, cannot afford co-pays and deductibles, or are unable to afford to wait for medical care until the case settles. In these cases, a medical lien is a vital lifeline that allows you to obtain necessary medical care without immediately incurring the cost of that care. However, medical liens are not to be entered into lightly and it is vital to have a qualified and experienced Los Angeles car accident attorney help you negotiate through the process.  

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How Long Do Personal Injury Cases Take?

The wheels of justice can turn slowly … or sometimes very, very slowly.  However, when you are injured in a car accident, you want those wheels to turn as fast as possible because you are without a car, incurring medical bills, and possibly missing work because of someone else’s negligence.  So just how long will it take to get your life back and your case settled? As with most things in the legal world, the ultimate answer is “it depends.”

 Taking Your Personal Injury Case to Trial

Negotiation

It's helpful to review a typical personal injury case to get a better idea of a timeline.  First, do your due diligence and find a car accident attorney who’s qualified, competent, knowledgeable, and has a record of winning personal injury cases similar to yours. Barring unforeseen circumstances, the first thing your attorney will most likely do is negotiate with the other driver’s insurance company. This step, if successful, can save you a lot of time, money and resources. If the driver is not insured, your attorney will then attempt to negotiate with their attorney, if they are represented.  Your attorney will send out a settlement demand with the figure of what you would accept as compensation for your injuries and damages.  More likely than not this is an opening salvo, particularly when an insurance company is on the other side.  The parties will negotiate back and forth and may reach a settlement. If the parties are so far apart that no agreement can be reached, your attorney will file a lawsuit.  

 File a Lawsuit

The next step is that your attorney will file a lawsuit on your behalf (you’re the plaintiff in this case) against the other driver and their insurer, if they have one (they’re the defendants).  Once the lawsuit is filed, the other parties must be served.  This means that they must be given formal notice by the court that a lawsuit has been filed against them.  If service is not made, the lawsuit cannot proceed because the parties will be deemed to not know of the lawsuit.  

 The other side typically has 30 days from the date they are served with the lawsuit to file a response.  In the response, they can deny or agree with the allegations. If you have reached the point where a lawsuit is necessary to achieve any kind of resolution, chances are the defendants will deny all allegations and the process will continue.  They may also add a counterclaim seeking damages against you as the other driver at this point.

 Discovery

After the response has been filed, the lawsuit enters one of the most important phases: discovery.  In discovery, your attorney will ask for documents, statements, and information from the other side related to the car accident and anything else that may be relevant to the issues of liability. The other driver’s attorney will ask the same from you.  All parties and witnesses will be deposed meaning they will be questioned under oath by both sides’ attorneys about the accident.  There may also be expert witnesses involved such as accident reconstruction specialists or medical experts who will be deposed to give their expert opinions.

 The discovery phase of the litigation can take months depending on the number of documents involved, the number of witnesses to be deposed, whether experts are involved and need to review documents or conduct reconstructions, and of course, everyone’s availability. The fewer parties, witnesses, and complexities involved, the less time the discovery phase will last.  

 One of the reasons the discovery phase is so critical is that, many times, a lawsuit can be settled without going to trial based on what is disclosed in discovery.  If it is so damaging to the other side that it would be impossible for them to win at trial, settlement negotiations will likely re-start and the parties may reach an agreement.    

 Trial

If after discovery, the parties have not reached a settlement, the case will go to trial.  A trial must be scheduled well in advance as the courts are very busy.  If a jury is required, this may further delay things since the court will need to summon a jury pool and there will need to be jury selection.  This is not an issue if your attorney elects to have a bench trial, which is a trial where the judge acts concurrently as judge and juror. The judge, in this instance, issues the verdict.  

 Depending on the complexity, a trial can take several days to a week or more.  Of course, the more complex the case, the more likely it will take more time.  Jury deliberations will add additional time. There may be numerous questions for jurors to answer in order to reach a verdict.  

 All told, then, how much time does this process take?  Easily months and possibly years, again depending on the complexity of your case. However, on average, most personal injury cases take several months to wrap up in court.  

 Other Factors that Will Influence a Personal Injury Case Timeline

It is important to consider other factors that could affect how long your case takes to resolve.  One factor is whether or not the other side is alleging that your driving or behavior contributed to the accident or if they deny liability for the accident at all.  This adds one more complex layer of investigation to the case that has to be resolved before an agreement or verdict can be reached.  Another factor is the severity of your injuries and if you are permanently disabled by the accident.  This means that the stakes are higher and the damages that your attorney are seeking are very high.

 What if your injuries from the accident don’t show up right away?  Or what if you initially decided not to file a lawsuit but then changed your mind?  Look to California’s statute of limitations which are rules about how long you have to file a lawsuit.  If the other party is a person or a private company, the law gives you two years from the date of the injury to file suit.  If the other party is a public entity such as a city or county, you have six months to file a claim – not a lawsuit – and if that is rejected, you have another six months to file the lawsuit.  

 In case you ever suffer a personal injury, hire a lawyer to represent you, and then you must decide between a settlement vs court trial. As you do, consider these statistics from the Law Dictionary:

·         Only about 5% of personal injury cases in the US ever go to trial

·         Just over 95% of personal injury cases get settled before the trial, i.e., money needed quickly, cost-benefit of going to trial not worthwhile, seeking arbitration perhaps a more efficient and less costly option.

·         This one is highly intriguing: about 90% of personal injury cases that do go to trial come out on the losing end

·         If you decide that you want a court trial and are deciding between a trial judge or jury, opt for the trial judge. You apparently have a better chance of winning and a better chance of being awarded compensatory damages more to your liking.

 If at all possible, give time a chance to sharpen perspective and reality. Sometimes, injuries take more time to reveal themselves. If you rush into a settlement and find out later that your injuries are worse than you thought, you will be out of luck.

 We tend to state this a lot in our articles and the only reason we keep on repeating this mantra is because it’s so true: the most important first step after a car accident is to get yourself a really competent and experienced car accident attorney. If you’ve been in a truck, bike, motorcycle, pedestrian, or Uber/Lyft accident, find an attorney who has experience and has shown positive results with those types of accidents. If you don’t, it could cost you big time in the long run – financially and physically.

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4 Questions to Ask Before Hiring a Personal Injury Attorney

One thing that most people do not know about lawyers is that, like doctors, they have their own areas of specialization. It is true that all lawyers take the same classes in law school and the same bar exam but usually the similarities end there. So, while your uncle’s real estate attorney may be a great person and highly recommended for zoning matters, this attorney will be completely out of their depth in a criminal case because the last time they thought about a criminal procedure was likely on the bar exam.

 Of all of the areas of legal practice, personal injury has arguably the most options and is also probably the hardest to vet.  It seems like there is not a TV commercial break during the news that does not feature an ad for a personal injury attorney and for good reason, as these cases are lucrative, and the defendants typically have deep pockets.

 This excess of choices in the personal injury space coupled with the usually sudden onset of the need to find one makes it particularly challenging for people who have been injured to find a personal injury attorney who will actually be able to get them a meaningful resolution to their situation.  However, it is not impossible, especially if you know the questions to ask and perform a bit of due diligence on the front end.  

 Does the personal injury attorney have referrals?

It is not unlikely that at least one of your friends or relatives has found themselves in need of a PI attorney and they can help you cut through the noise and advertising buzz.  However, it is important to also consider who other lawyers would recommend as other lawyers are a particularly fertile source of recommendations since they understand the criteria that should be used in evaluating an attorney in the first place.  A good place to start is Super Lawyers which recognizes no more than five percent of attorneys in California, and which is solely based on peer reviews, nominations, and independent research.  A related question to ask of a prospective attorney is how many referrals they get from other lawyers. A sure sign of a qualified and competent attorney is that other attorneys send work their way.

 Also ask your friends and relatives about the responsiveness of their attorney once the contract was signed and the honeymoon phase of courtship was over.  You want your personal injury attorney to keep you updated on the status of your case through all phases and to answer your emails or phone calls in a timely manner.

 What is the attorney’s fee arrangement?

Unlike most other areas of the law where clients are charged on an hourly basis regardless of the outcome, personal injury attorneys typically charge a contingency fee. In other words, they are charging a fee based on the recovery that they can secure for you rather than charging you an hourly rate.  This may be presented as the attorney does not get a fee unless you win (which is typically the arrangement); however, it’s crucial to understand your lawyers’ contingency fees and other possible fees.  

 For example, it does not mean that you are not on the hook for something if you lose. “Fees” are separate and different from “expenses” and this is typically where the confusion and disappointment starts. The “fees” are the equivalent of the lawyer charging per hour for their time and expertise. The “expenses” are the mundane but routine third-party fees for moving the case along including fees for filing, medical records, experts, and the court reporter.  Be sure to understand from the beginning with your personal injury attorney what is included on the expense side of the ledger and what you will be expected to pay even if you lose.  Ask also about alternative options including deducting expenses from a potential pay out or capping expenses at a certain amount.

 Does your attorney focus solely on personal injury?

Remember, any person who passes the bar can hang a sign on a shingle and take cases. However, personal injury law is a specialization just like tax or family law and you will want to find someone whose practice is mainly, if not completely, personal injury.  Be certain to ask the attorney how many personal injury cases they have handled, including those that have gone to trial.  Also inquire about how long they have been handling personal injury cases for plaintiffs – i.e. people who have been injured and are seeking recovery.  Any qualified attorney can settle a personal injury claim. It takes a true professional to evaluate a claim, to decide if it is worth taking to trial, and to actually follow through. This is what separates the general practitioners from the competent and skilled personal injury attorneys, especially in Los Angeles and, more specially, Encino.  

 Do you prefer to settle out of court or go to trial?

It is also worth taking into account your own preferences in this area.  Do you want to have a trial or do you want a quicker resolution without the theater of a judge and jury?  Both are legitimate options but having a preference is always helpful to share with your attorney.

 If you have followed this decision tree so far, your choices should be sufficiently narrowed to make an informed decision.  However, remember that as much as you are interviewing the personal injury attorney, they are also evaluating you and your case.  They are looking at the possible recovery amount, time needed to be spent on the case, its complexity, the logistics of lining up witnesses and experts, etc.  Running through the aforementioned due diligence points will help you to fully understand what you are looking to get out of the process and will help you to determine if the personal injury attorneys you consider are right for you. Your decision

can influence the difference between a mediocre recovery and a truly stellar one.

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How Much is Your Personal Injury Claim Worth in California?

Without a doubt, car accidents are expensive, not only in terms of the actual costs but with opportunity costs, lost time, and the sheer stress of it all.  While the law seeks to make the person who has suffered whole because of the accident, it does not offer a particularly easy formula for making the determination. Indeed, the sheer variety of recoverable costs associated with a car accident can be absolutely mind boggling.  We will discuss here the two types of compensatory damages that are most common in a personal injury case: general and special damages.

 Special Damages

Let’s start with the most obvious costs that are readily quantifiable in California such as damage to the vehicles and medical bills, also known as special damages.  For vehicle damages, typically your insurance company will send you to their preferred mechanic or body shop and reimburse you for the costs of the repairs or pay them directly to the body shop. If the car is considered totaled – when the insurance adjuster determines that the repair costs are more than the value of the car before the accident – they will pay you the value of the car just prior to the accident.  If you go to another mechanic or body shop be sure to keep your receipts in case you need to submit them to your insurer.  

 Special damages also include lost earnings which are monies that the victim loses out on because of the accident.  These include wages, bonuses, commissions, and any other monies the victim would have earned had the accident not occurred. Lost earnings can be proven by submitting pay stubs and W-2 forms as well as testimony from the victim’s employer. In some cases, actuarial or economic experts are called to testify as to the victim’s lost future earnings including Social Security benefits and retirement benefits that would be lost due to lack of contribution.  

 Medical expenses are also included in the special damages calculation, but they are not quantifiable as vehicle damages or even lost earnings.  This is due in part to the nature of the health care system in the United States where most medical services costs are negotiated between the health care provider and your insurance company.  Medical expenses that are covered include fees for ambulance transportation, doctor’s visits, surgeries, hospital stays, x-rays and imaging, physical therapy, rehabilitation, prescriptions, and medical equipment.  Be aware, however, that you cannot seek reimbursement for the total amount billed by your providers.  You can only recover what your insurance company negotiated and paid to the providers on your behalf.  This figure, however, will feature prominently later on so it is important to pay attention to it.

 General Damages

The other category of compensatory damages in California is general damages which generally covers what is commonly known as “pain and suffering.”  This umbrella term covers a variety of claims including emotional distress, loss of life enjoyment, permanent disfigurement, mental anguish, or permanent disability. The difficulty in calculating these damages, however, is that they are very hard to quantify.  There are numerous factors that go into the determination including the type of injuries and their severity, the amount of time it will take to recover, the amount of pain involved, and the level of disruption to life.  

 The Multiplier

So, California law has come up with an imprecise but mostly effective method of calculating these types of damages: a multiplier.  This is where the figure of the reimbursed medical special damages comes into play. To get started, the insurance companies and attorneys typically start with the amount of the medical special damages and multiply them by a factor of at least 1.5 which is reserved for the more minor cases.  As the injuries become more serious, disfiguring, or time consuming, the multiplier will increase anywhere up to a factor of five on the assumption that the more serious the injuries, the longer the recovery time, suffering, and the more invasive the treatment.  For an injury that incurred $60,000 in medical expenses, it is likely that a lower multiplier would be used, such as 1.5, leading to a recovery of $90,000.  However, if the medical expenses are $1,000,000, chances are the multiplier will be near or at the multiplier of five leading a recovery of $5,000,000.

 At this point, it is critical to mention the other factor that could affect the pain and suffering recovery: the jury. Although rarer these days, there are still jury trials for personal injury claims and the jury is free to set what it feels is the appropriate amount for pain and suffering and ignore what either side argues is ‘fair’.  While the jury can disagree with the defendant and award the plaintiff much more than they asked for, they can just as easily ignore the plaintiff’s requests and award little to nothing.  The jury can be swayed by factors seemingly unrelated to the actual case such as the persuasiveness of an expert or the sympathetic nature of the other party.  Given their unpredictability, many attorneys elect to have a judge decide the final amounts rather than a jury.  The judge will look at what similar injuries have been awarded in damages as a benchmark for what to award in the present case.

 This all probably seems very overwhelming, and you may be wondering where to start. The best answer is to start with an experienced and competent Los Angeles personal injury attorney whose sole concern is ensuring that you recover as much as you possibly can out of a terrible situation.  This qualified, skilled personal injury attorney can advise you as to how to initially proceed, whether it is to accept the settlement from your insurance company, or file suit against the other driver. They can advise you as to what your case may be worth considering general and special damages including pain and suffering. And, the proficient Los Angeles personal injury attorney will ensure that you have as much information as possible to make an informed decision about your case.  

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Motorcyclists Beware: The Balance Between Freedom and Danger

Perhaps more than any other vehicle on the road, motorcycles represent the quintessential American experience of feeling the wind in your face while riding at speeds that were once only imaginable (on a 2-wheeler, that is!). As of 2018, there were 8.3 million motorcycles registered in the United States and not surprisingly, California, along with Florida, topped the list of registrations with over 857,000 bikes registered in the state.  However, that same year over 4,500 riders were injured or killed on California roads.

Of all the modes of transportation on the roads, motorcycles are by far the most dangerous because there is virtually no protection available for the rider. Motorcycle riders are 28 times more likely to be involved in a fatal accident than a passenger vehicle. Accidents such as hitting a car door opening and sudden stops that would cause minor to moderate injuries to someone in a car or truck are often fatal to a motorcycle rider. Even so, in 2019 there were 474 motorcycle fatalities in California which represented a 9.4% decline from the previous year. Of those deaths, 28 were not wearing a helmet and approximately 45 percent were accidents with one car.

Wearing a helmet while riding a motorcycle is mandatory in California because head injuries account for most serious and fatal motorcycle injuries. All helmets must be certified to comply with the U.S. DOT’s Federal Motor Vehicle Safety Standard (FMVSS) 218. Helmets have been shown to drastically reduce the severity of head injuries by as much as 50 percent when a person is riding slower than 30 mph at the time of collision which is when most accidents occur.

For many years, motorists have been exhorted to share the road with motorcycle riders to cut down on crashes and fatalities. However, there is just as much responsibility on motorcyclists to be aware of their surroundings and to drive defensively because in a collision between a motorcycle and a car, the car will almost always win. As a result, motorcycle riders must be experts on both road rules and road etiquette.

Indeed, two of the main reasons for motorcycle accidents are caused by riders themselves: inexperience and left turn accidents where the rider misjudges the distance and speed of the oncoming car. Driving while intoxicated is also a problem as are sudden stops by motorists, unsafe lane changes, speeding, and opening car doors. There are also accidents caused by unsafe road conditions and defects in the manufacturing of the motorcycle or the car.

The cause of an accident is far more than just an academic question. It is often at the heart of the question of liability. Who is at fault for an accident often ends up being the person who pays for the damages. More often than not, however, the question is not just who but how much fault should be apportioned to the person. Most accidents are caused by a confluence of different factors many of which involve another person or persons besides the motorcycle rider.

California is a comparative fault state which means that in any situation where liability is to be determined, the fault of each party in contributing to the accident must be considered. So, in a motorcycle accident where a rider slams into an opening car door and is launched over the handlebars landing on a parked car, there are at least five potential tortfeasors or sources of fault: of course the driver who opened their car door without checking to see if there was someone coming and the motorcycle rider because they failed to stop (although this could have entirely been out of their control). Other parties include the car in the lane next to the rider which prevented the motorcyclist from getting out of the way of the car door, the city or county for poor lane marking and lack of warning signs to watch for bicyclist or other riders, and the manufacturer of the motorcycle for negligent design of the windshield that did not stop the driver from launching into the parked car. It is entirely possible that all five separate persons and entities have some degree of fault for the accident.

Remember also that automobile insurance does not cover motorcycles and you will need to have a separate policy for your bike including liability insurance. The minimum required by California for a motorcyclist is $15,000 for bodily injury or death to one person per accident, $30,000 for total bodily injury or death per accident, and $5,000 for property damage per accident. As these are the bare minimums required, it is always advisable to have more insurance especially since the base policy may not pay for damage to your bike in an accident which could be substantial.

Comparative fault questions are complex and require a great deal of research and understanding of the law. A skilled and competent motorcycle accident attorney in Encino is uniquely qualified to handle these types of questions and to ensure that motorcyclists in accidents receive the most possible compensation. The same knowledgeable and experienced motorcycle accident attorney will be able to pursue the necessary actions on your behalf against all potential tortfeasors who may be liable as well as dealing with your own insurance company to make sure that the insurance company fulfills its obligations to you.

The proficient and trained lawyer will be able to drill down through the facts and get the necessary information from the other parties, witnesses, the police, and the insurance company to present the most compelling argument for your compensation and recovery. Their job is to fight for as much compensation as possible to make you whole as much as possible.

Motorcycle riders are in a unique position to enjoy the road in a way that people in cars and trucks cannot even imagine. But with that freedom comes great risk in the form of much higher fatality and accident rates and riders need an accomplished and experienced experienced motorcycle accident attorney in Encino and Los Angeles on their side.

Anthony Girgis anthony@girgislawfirm.com https://girgislawfirm.com