Archive for the ‘Jury/Juries’ Category

Short Trial Experience

In the event that you have never attended a short trial, you may be interested in reading this Blog. Two auto Insurance company adjusters attended this trial and stayed from beginning to end, and the ADR Commissioner also visited the courtroom.

One issue that came up during the trial was what I was allowed to comment on concerning my client’s medical records in closing arguments. The judge ruled that I could not comment on what the results of my client’s positive orthopedic tests for meant, because no explanation of what a positive result on those tests was stated in his records. For example, on the initial exam had a positive Soto-Hall test, which would indicate that cervical nerve root compression was present. And, he had a positive Kemps bilaterally, which would indicate facet joint involvement. The judge determined that, if I were allowed to make those comments, that I would allow me to render an expert opinion. I argued to the judge that it doesn’t make sense that, if something is in evidence, that I can’t comment on what it means. In the event that my comments are erroneous, then defense counsel can make an objection, or he can tell the jury that I am wrong, and that positive test result indicates something else. The Short Trial Judge did allow me to comment on the difference between sprains and strains, because this would be within the common knowledge of most people.

I was also not allowed to comment on purpose of therapies utilized on my client. For example, I was not allowed to comment that chiropractic manipulation is used was to correct structural misalignment and reduce scar tissue formation to help to promote prevent chronic conditions from occurring. I was not allowed to comment that the purpose of heat and cold were to bring blood flow to the injured tissues to promote healing, or that the purpose of ultrasound was to relax muscles and thus reduce pain. I could not comment that the purpose of electrical stimulation was to reduce muscle spasm and thus reduce pain. I was not permitted to comment on any of this at trial because these explanations did not appear in my client’s medical records.

If medical providers would add this information to their records, this would be of tremendous help to attorneys who do short trials, because the damages claimed in these cases do not justify the expense of calling medical experts.

One big problem in the case was the one provider would not cooperate in signing a Declaration like another provider did. We sent a declaration to this provider’ office three times. We had multiple calls to that facility that fell upon deaf ears. His bill for one visit was $1,330.00 was the subject of a huge amount of comment by the defense during the trial. Since I had no declaration from this provider, I am sure that the jury severely discounted his bill. This made a low impact case even more difficult. Hopefully, the physicians that I use in the future will understand the importance of including a statement that their charges are reasonable and customary, and their treatment was medically necessary as a result of the patient’s accident-related injuries. Perhaps if any personal injury providers are reading this blog you can modify your record keeping procedures on your auto injury patients. We all need to work together to coordinate our efforts in combat against the insurance companies on low-impact auto accident cases.

Another issue came up during this trial was that my client was sent to a pharmacy that provided medications on a lien. One of the plaintiff’s prescribed medications was Voltaren Gel 1% (Diclofenac Sodium) (five tubes at 10 grams per tube) and another was Naproxen, which the defense argued was simply over the counter Ibuprofen. Needless to say, the charges for these prescriptions were high, because they were provided on a lien. While we were waiting for the during jury deliberations one of he topic of conversation that came up in the courtroom was, what is a reasonable and customary charge for medical services these days? Prices for medical services are all over the board. The conclusion is that nobody knows for sure, yet the legal system leaves that determination to the trier of fact.

On this case, I had to respond to written discovery, attend my client’s deposition, write an arbitration brief, participate in an arbitration hearing and, go through all the preparation that is associated with a short trial. We were in the courthouse for eight hours, and I had generate all of the post-trial motions. This preceding list does not include the preparation time involved with all of these legal matters as well as the time involved with pre-litigation matters.

I completed this short trial on June 9, 2017. The jury verdict was $3,645.00 for medical specials and $1,700 for pain and suffering. The total was $5,345.00. My client’s medical specials were $6,080.00. This was a low impact case. We had no offers pre-litigation. On post-trial motions I was granted costs, which included the short trial judges fee, prejudgment interest, and attorney’s fees were granted for less than one-third of the amount of the jury verdict. As I previously mentioned, we were in the courthouse for eight hours. I had sufficient time on this short trial, so that if I were billing for at a rate of $100.00 per hour (a very low rate these days), that I would be entitled to a maximum award of attorney’s fees of $3,000.00. I really thought that I deserved a maximum attorney fee of $3,000.00, however he short trial saw it differently, and he decided that my time was worth a lot less.

We all need to get up in the morning and make our beds. This means that little things, like a short trial can make a big contribution to the life of an injured low-impact auto accident victim. It can also make some minor positive impact overall in the bizarre insurance world of low-impact-auto-injury-accidents. This trial won’t produce a make a large ripple effect within insurance industry, just because the adjusters that sat through it, and reported back to their supervisors on the outcome. They probably reported that they won this battle by using up my time. However, this trial did nothing to reduce my motivation and spirit to continue on in the battlefield of low impact auto accident cases.

Las Vegas Metropolitan Police Department Will Not Respond To Non-Injury Fender Benders

The Las Vegas Metropolitan  Police Department announced Monday, February 24, 2014, that beginning March 3, 2014,officers will no longer be responding to minor non-injury fender bender car accidents.

Metro Police says officers are being stretched too thin, trying to get to these types of crashes.  According to Metro Police, an average of 250 man-hours per week is dedicated to these types of wrecks.

Officers will continue to respond to injury accidents and hit-and-run incidents.  They will also respond when a driver in a wreck refuses to exchange insurance information.

Almost everyone knows that fender bender accidents do produce injuries.  The problem with this new policy is that many spinal musculoskeletal injuries do not manifest their symptoms until 24 to 48 hours after involvement in a traumatic event.  Often these musculoskeletal spinal injuries involve nerve root irritation or spinal disc involvement as a pain generator and lead to expensive treatment and diagnostics.  Some people become chronic from these injuries.  This new Metro policy degrades the injury producing potential of fender bender accidents.  Although the police reports and accompanying citations issued by Metro is not 100% conclusive to insurance companies in confirming liability for an accident, they go a long way in resolving an insurance company’s determination of the liability aspect of a claim, so that property damage claims can be resolved in a expeditious manner.  The new Metro policy will mean that accidents investigated by insurance adjusters will take longer.  Accident victims whose vehicles are dangerous to drive, are illegal to drive, or are non-driveable will be either forced to drive their unsafe, illegal and/or damaged vehicles or be without transportation in cases where victims do not carry their own rental coverage or cannot afford to pay their deductible to have their care repaired through their own insurance.

So who makes the decision that the accident is a “non-injury fender bender?”  How will Metro decide if an accident is an injury producing accident?  For Metro to respond to an accident, does a victim need to be transported from the accident scene to the hospital, thus incurring medical bills for the transport, hospital, ER doctor and radiologist?  The bills for emergent care can average at least $3,000 to $5,000.

The number one reason that most residents of Las Vegas get involved with Metro is their involvement in a motor vehicle accident.  So, if it now takes 250 hours a week to investigate all minor traffic accidents, that doesn’t seem like a lot of time and manpower to devote to traffic accident investigation.

If you have one of these non-investigated fender bender accidents, the adverse insurance company will most likely deny the accident injury claim because there is no traffic accident report.

If injuries arise from these accidents and these cases go to trial, a jury will probably be influenced by the fact that the accident wasn’t investigated by the police and impliedly reduce the significance of the accident.

Accident victims will need to hire attorneys to initiate more litigation to resolve these claims.  Under this new policy, Metro will lose revenue because traffic citations will not be issued to the at-fault drivers.  Even minor traffic violations now have fines in the $200 to $500 range.  If it takes an officer  two (2) hours to investigate an accident, the citations issued are compensation back to the City for the use of the officer’s time.

Because of the current economy, a great percentage of drivers on our roads have no insurance or they have expired or lapsed insurance.  The fines on these “no insurance” tickets are high.  In order to reduce the ticket from a fine above $1,000.00, the uninsured driver must obtain insurance after the fact.  This makes uninsured drivers obtain insurance which is a benefit to everyone.

Metro charges $10.00 for a copy of a traffic accident report.  The two insurance companies will order one and the drivers and injured passengers usually pick one up.  Certainly, the attorney representing the injured party has to order one.  This is additional revenue to the City.

If other cities are not investigating minor accidents, this should not be the standard in Las Vegas.  The general rule is that if the accident is not your fault then you want the police to investigate.  If the accident is your fault, don’t involve the police, if that is possible.

I know that there are a certain percentage of motor vehicle accidents where the parties decide to exchange information and don’t call Metro.  In these cases there is no ability to take written statements and document the facts of how each party describes the accident at the scene, when their  memory of the events is at it’s freshest.

Let’s talk about safety.  When there is a car accident out on the street traffic will still be  flowing.  Of course, you don’t want to move the vehicles until information is gathered and photographs are taken.  This creates a dangerous situation because law enforcement is not there at the scene to direct traffic.

Let’s talk about time.  Now, on most uninvestigated accidents, the parties are required by state law to file a station report of accident at a Metro substation or a SR1 form with the Department of Motor Vehicles.  This takes time.  Your time should be as valuable as traffic officer’s time.

It is likely that on uninvestigated accidents that there will be two (2) divergent reports of the accident after a time lapse which occurs when the drivers involved file their own reports.  It is a crime to give a false statement to a police officer, so having an officer at the scene promotes truthful reporting by the involved parties.  These accidents aren’t going to be reported accurately, and there is no way to reduce bias in self-reporting an accident unless an officer is present.

How will the new policy reduce fatal accidents?  All of this according to Metro is supposed to allow police to proactively enforce traffic laws in hopes of bringing down the number of fatal crashes.  However, if you are ticketed for an accident, this should cause the sensible person to reevaluate their driving habits so that the distraction (accidents are always caused by some type of distraction) that cased the instant accident does not cause another more serious accident.

How will the new policy reduce fatal accidents?  This new policy by Metro is bad for everyone.  Previously, Metro adopted the policy that it does not respond to motor vehicle accidents that occur on private property.  That policy makes those property damage claims and/or injury claims much more difficult.  I know that Metro’s budget has experienced cuts because of current economic conditions.  However, the investigation of minor property damage traffic accidents should not be eliminated.  Many criminals are taken off the streets because of minor accidents.  They may have bench warrants for serious crimes, suspended or revoked driver’s licenses, or they may be fugitives from justice skipping bail.  There may be illegal contraband in vehicles that can be seized.  If one party to an accident was drinking before an accident, then the investigation will take that driver off the street so that he can’t cause another accident.

Obviously, Metro has brought attention to their budget cuts by adopting this new policy.  I don’t see how this new policy promotes safety and prevents additional accidents, because when people causing accidents know the police won’t be involved, they are most likely to leave the scene or be inclined to give incomplete or false information to the victim.

Did you know Metro no longer investigates house burglaries?  The victim must fill out his own report.  What service will be cut next?

What Jurors Should Know About Low Property Damage Auto Accidents (Alleged By the Insurance Industry to be Minimum Impact Soft Tissue Motor Vehicle Accidents

Unless you have had to unfortunate experience of being an injured victim of a low property damage motor vehicle accident, you may have difficulty understanding that people do get injured as a result of these accidents.

The purpose of this blog is to educate readers, who may end up on a jury, that there are two sides to every low property damage motor vehicle accident.

The definition of a low property damage accident over the years has expanded from cases where the property damage was under $500.00 to cases involving thousands of dollars worth of damage. The definition is whatever the insurance company representing the at fault driver defines it to be.

In my experience with auto accident claims and litigation for approximately 30 years,  I have seen hundreds of victims develop serious spinal and other musculoskeletal injuries from low property damage accidents.

Obviously, insurance companies hate these case claims, and they will force the victims of personal injury accidents into litigation and even Trial.  Many personal injury attorneys won’t take them – or won’t keep them if they cannot settle them without resorting to litigation.East Inflatables

Once, while backing out of a driveway and moving very slowly, I ran into a pole supporting a basketball backboard.  The impact was to the rubber part of my steel bumper.  The bumper of my car was  the older type which incorporated bumper shock absorbers. The shock of this impact was so great that I thought that I would develop injury symptoms.  Although I was fortunate not to have been injured in the accident, the impact  really rang my bell mainly because of the unexpected nature of the collision.

I did get hurt from rear end collision where that was part of a four vehicle chain reaction rear end accident. My new Corvette was first in line at an intersection when I was struck from behind and pushed out in to the intersection.  I thought that the rear end of my Corvette was demolished.  When I got out  of the car the only damage that  was visible was a crack in my bumper cover about 2 inches long and the rear quarter panel red lights popped out of their of their sockets.  After this accident  my back started hurting, and it kept getting worse with time. I kept denying that I  was injured but eventually had to get some chiropractic treatment because of horrible low back and leg pain.

Insurance companies often deny these low property damage claims, or offer very little to settle them.  They know that many attorneys will not dedicate the time and expense to litigate them. Juries that hear these cases often do not understand the medical complexities involved with whiplash injuries and  are predisposed to think that people who make claims for these types of accidents are trying to take advantage of the system.  As a result it is difficult to obtain a fair verdict that compensates the victims for the injuries they suffer as a result of these car accidents. However, it is my experience that jurors are reluctant to admit this prejudice during voir dire examination.

Skilled defense attorneys defend these cases.   So, the insurance companies motive in strongly defending these claims is an effort to discourage victims of injury accidents from seeking compensation and attorneys from representing those who do.  The advantage to the insurance company is the production of a ripple effect though the legal community.

Since so many people are hurt in these rear-end low property damage accidents, it cannot be said that these accidents do not produce injury.  It is true that some people walk away from them without injury.  Most adverse drivers that cause these accidents often do not get injured because they have the opportunity to see them coming and prepare for the impact. Their bodies also move in different directions than those whose cars they hit.

Many factors enter into the injury potential of these accidents.  Factors that can increase susceptibility to injury include: body position at the time of impact, lack of head rests, seatbelts locking on shoulder harness straps that only go over only one shoulder, bracing, unexpected nature of the collision, susceptibility to injury due to prior injuries or  pre-existing conditions, weight, age, sex (women have more susceptibility to cervical injuries) or presence of osteoarthritis or other degenerative conditions.

Whiplash injuries are caused by the unique and unusual head and spinal movement produced by rear end, side, and frontal impacts.  The symptoms associated with sprain and strain injuries to the supporting structures of the spine may come on hours or even days after the accident. Delayed symptoms associated with spinal injuries are the rule rather than the exception.  Despite this medical truth, insurance companies hire doctors who will testify that the victim of an injury accident may not have been injured, or may have been only slightly injured if they did not complain of pain immediately after the accident.

Insurance companies will argue that there is a scientific correlation between the amount of visible damage sustained to a vehicle’s components, which are  mostly metal and plastic,  and the seriousness of injury sustained to the flesh and connective tissue of a human occupant.

The simple defense argument presented in thousands of courtrooms across the country each day is that injury victim could not possibly have been injured because there was no or very little property damage to the victim’s vehicle.

Insurance companies spend millions of dollars on their commercials talking about fakes, frauds and cheaters who are trying to exploit and defraud  an insurance company out of billions of dollars. They always take the position that injury claims are exaggerated.  Insurance companies make money selling insurance and investing that money in the stock market and other investments. They advertise about fake and fraudulent claims in an attempt to  give the impression that they are actually losing money. In  reality insurance companies have us convinced us that we should not make a claims even against our own policies because our rates will go up, or our policies will be cancelled. Jurors think that if they award money damages to auto accident victims that this may indirectly affect their own insurance rates.

To analyze the effect of a low property damage auto accident one cannot compare apples to oranges.  Trying to make a statistical correlation between damage to  inanimate objects like an automobile and a human body is comparing apples to oranges. Metal and human tissue share little  similarities. Some people herniate a disc when bending over to tie their shoes. And some people walk away from accidents where their cars are totaled.  Therefore, there is no correlation between property damage and human  injury.

In order validate the proposition that little vehicle property damage equates to little injury, the analysis must also  include the proposition that major vehicle  damage must equate to major bodily injury.  Insurance companies will deny such a direct correlation in high property damage cases.  Body movement in a low impact accident can be incredibly complex.  The injury potential of any accident is a matter of medical opinion.  The opinions of treating physicians and defense experts concerning the injury potential of any accident will be divergent.  Defense experts are called upon to provide favorable answers on critical injury potential issues – and are paid to do so. Insurance company experts won’t get repeat business unless they give favorable opinions to their insurance company clients.  Accident Reconstructionists and Biomechanical Engineers can make a lot of money rendering these opinions.  A cottage industry of low property damage auto accident experts has evolved in this country which is supported financially by the insurance companies.  There certainly is money to be made,  however the perceived legitimacy of these experts rests upon the application of junk science.

A multi-disciplinary education involving medicine, physics and biomechanics should be required to qualify a  low property damage expert.  Seldom does the expert have credentials in all three areas. A person who has not treated the victim of the personal injury car accident should be required to be an accident reconstructionist,   medical doctor, engineer,  and mechanical engineer  to render injury potential opinions on low property damage accidents.

Cars absorb energy of a crash by crushing.  Energy is not absorbed by the car if it does not crush. The less crush the  more energy is transferred by the crash to the occupants.

Harmful hyper-extension followed by immediate hyper-flexion  of the head and neck results  from a low property damage rear end accident.  This causing a shearing force to the supporting structures of the spine.  But, insurance experts take the position that a change  of velocity of the impacted vehicle under 5 mph  means that someone that who was legitimately injured and sought medical treatment is always a fake or a fraud.

So, potential jurors should not automatically accept the defense arguments on a low property damage impact auto accident.  They should look to the injured party’s medical condition before the accident.  Was the victim predisposed to injury from a motor vehicle accident  because of arthritis or some other medical condition that would make them more susceptible to injury from a low impact accident?   Are the injuries that are reflected in the post-accident medical records supported by standard orthopedic and neurologic testing?  What was the  range of motion deficit identified by the treating physician and to what extent does it  to verify the musculoskletal injury? Do the x-rays show loss of the normal curvature of the spine caused by muscle spasm?    Does the doctor relate it the injuries to the  accident even considering the low property damage and why?  Was the injured party symptom free prior to the accident? If so, is there any other explanation for the development of the symptoms other than the subject accident? Does the MRI show disc bulges or herniation?  Do the bulges or herniations cause nerve root impingement or irritation consistent with the patient’s symptoms? Did the symptoms develop within a few days of the accident? In determining what injury was caused by the accident, jurors must compare the patient’s condition before the accident to how the patient’s condition after the accident.

Since your job as jurors is to be fair and impartial, you must consider both sides of the story on low property damage motor vehicle accident cases in rendering your verdict.

The picture above is from an accident in which we represented a client in a low property damage accident.  The repairs totaled less than $500.00 to replace the bumper.  The case was tried to a Jury in the Short Trial Program. After considering the facts, including our client’s long history of similar, and chronic, back pain the Jury awarded $3,000.00 to compensate him for the medical bills incurred as a result of the accident and $9,000.00 in pain and suffering as a result of the accident.

How Can a Juror Tell Which Side to Believe?

The standard of proof in a civil case is “preponderance of evidence” or “more likely so that  not so”. 51 % of the weight of evidence is sufficient proof for a plaintiff, counter-claimant, cross-claimant or third-party claimant to prevail in a civil case.  Jurors sometimes confuse the civil standard with the criminal case standard of proof  which is “beyond a reasonable doubt”, a much higher standard.  Attorneys must always take efforts to explain the “preponderance of evidence”  standard of proof to the jurors in their opening statements and closing arguments in civil cases.

Scales of Justice

So, how can civil jurors to determine which side is telling the truth?

You’ve heard the adage that there are two sides to every story. Two-party civil cases come to trial because both sides think that their side has the more credible of the two stories. These civil jury trials invariably have two opposing sides. Jurors can tell the strengths and weaknesses of a party’s case by closely listening to the closing arguments of each attorney. The goal of all closing arguments is persuasiveness. The battle between the two sides during closing arguments sometimes results in an attorney arguing that the evidence favors only one side and no alternatives are available. These one-sided arguments never address and refute the opposing view.where to purchase commercial jumping castle

Two-sided arguments address and refute each of the opposition’s points. If a juror is confronted with a one-sided closing argument, he should generally distrust the messenger. A one-sided argument avoids drawing attention to the weaknesses of that side’s case. Logically, a one-sided argument should weaken a presentation. So why would an attorney choose to utilize a one-sided point of view in closing argument?

One-sided arguments are used because the attorney feels that the jury panel is already sympathetic to his case, or because that the attorney has attractive facts on his side. The third reason for utilizing a one-sided closing argument is because the attorney feels that the jury panel is comprised of jurors who are unsophisticated or uneducated in the technical issues that are involved with the case. If the jurors are fall in this category, the attorney may decide to make his presentation simple and easy to understand. The rationale is that a two-sided argument will confuse the jurors in these types of cases. When jurors get confused by one side’s presentation, they tend to vote in favor of the opposite side.

In reality, persuasiveness increases when the opposition’s points can be systematically refuted. If an attorney brings up the opposing arguments and then shoots them down, this should logically bolster the attorney’s credibility. No matter how eloquent the attorney’s presentation may be, if the attorney is using a one-sided closing argument, a juror has the option of discounting his message and look for the reason that he is not countering the other side’s arguments.

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