Trial Attorney Blog

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.

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.

Most of our clients are innocent victims of negligent acts. A person is sitting still at a stop sign and a driver negligently fails to stop in time rear-ending them and causing serious injuries. Another driver fails to yield right-of-way and crashes into the side of their vehicle. In both cases, a negligent act caused the injury to the innocent victim. In other cases, however, intentional torts are involved. A step-father molests a child. A man rapes a woman. A man kills someone else. In all such tragedies, there may be civil remedies available to redress the tragedy, particularly for the victims and/or their surviving relatives.

If a drunk driver runs a stop sign, he may be negligent in doing so, but also he is engaged in criminal acts, thereby committing vehicular homicide. The lawsuit alleges both civil and criminal liability in such a circumstance. If a step-father rapes a child and the step-father has money, the child’s representatives can sue the step-father for damages. If a rape occurs, the victim can sue the perpetrator for damages. If a hotel employee secures a pass key and rapes a guest tenant, not only can the victim sue the perpetrator, the victim may also be able to sue the negligent landlord and/or hotelier that negligently allowed access to the pass key.

Victims of crime should consider whether they have tort remedies available to redress the injustice done to them. There may be Dramshop liability against the business establishment that served the drunk driver. The criminal perpetrator may be wealthy and may have assets that can satisfy a civil judgment. A business may have negligently hired a person with a criminal record such that they may be liable for negligent hiring and retention of the employee who thereafter commits a criminal act.

This morning we were disturbed to hear of a police chase on Atlanta’s major street that ended in crashes with two innocent motorists.

In the Buckhead neighborhood this morning, a police pursuit of a reportedly stolen vehicle ended with a violent crash with two innocent drivers on Peachtree Road, near Peachtree Battle Ave. (near several elementary schools).

Witness accounts report that at least one innocent driver’s vehicle was propelled a long way after the impact, and we pray that the innocent motorists survived without serious injury. This intersection is also one where a crossing guard helps children cross these same streets to enter E. Rivers Elementary School.

Our office has been contacted on numerous occasions by individuals seeking restitution for the loss of a life of a loved one due to a house fire. In some cases the house fire may be caused by a malfunctioning device. In other cases the fire’s consequences may have been escaped had a smoke detector been functioning properly. In other cases, an electrical water heater may explode or there may be problems with a gas line or some other component of the house itself which causes the fire. While all cases are different, whenever a wrongful death results from a house fire, the tragedy can be compounded if there is not a proper investigation following the fire itself.
The causes of some fires can never be determined many times due to the blaze itself. The fire consumes all the evidence and it is impossible to determine the actual cause or origin of the fire. In other cases, however, if there is enough remaining evidence after the fire for forensic examination, a cause, in fact, can be determined. What is vital in all of these cases is that there be a scene investigation conducted by the local Fire Marshall’s Office and that counsel for the survivors of those killed in the fire be retained to review their work and also to conduct an independent examination of the site. The sooner one works on such a case to preserve all available evidence, the better the opportunity for uncovering evidence which will support a viable claim, whether it be a product liability claim, claim against a negligent contractor or otherwise. In any case in which a wrongful death occurs as a result a house or trailer fire, family members may wish to consult counsel on behalf of the survivors if for no other reason than to make sure that an adequate on-site investigation is conducted either by the authorities or by private investigators. Sometimes the failure to act in an expeditious manner can result in crucial evidence being overlooked and/or in crucial evidence being destroyed. A failure to preserve evidence is the biggest reason why claims are unsuccessful when house fires are involved, thus it is imperative that an investigation be conducted as soon as is possible under the circumstances.

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.

We read today a newspaper article out of an Indianapolis paper where two teenagers were killed following a police chase for a minor traffic infraction. Ironically, the police department in question had recently decided to review its own internal policies concerning high speed police chases. The current policy under review by the department would not have allowed the chase, which resulted in the death of the two teenagers. It bears repeating that many times the people that are killed in these chases are not the ones fleeing but rather innocent motorists who get caught up in the chase through no fault of their own. Literally, they are simply at the wrong place at the wrong time, doing nothing and yet they die. The question is whether any deaths (including a fleeing suspect’s) are worth the price to attempt to capture someone who is wanted for a traffic infraction.

Most policies today, which are enlightened, are those which prohibit unfettered police chases absent an imminent danger to the public. If a murder or rapist is fleeing, then they need to be captured because they are an imminent danger to the public. The same cannot be said for someone who is violating a traffic law. As many teenagers go joy riding in stolen cars, the question is whether we should chase them at 100 miles per hour or let them go and capture them using other police techniques. Do we need to immediately apprehend them such that we are willing to endanger the entire public? Are we willing to have the deaths of innocent motorists caused by the attempted apprehension of a joy riding teenager? These are the debates ongoing throughout the country. Fortunately, there is a heightened public awareness that police chases should be restricted to the more dangerous suspects who need to be immediately apprehended. Unless the suspect needs to be immediately apprehended (such as a violent felon), the police should let non-dangerous suspects go and try to capture them later, under safer circumstances.

For an interesting read on this debate in the Indianapolis community please go to the attached link and read the entire article:

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.

In serious injury cases, usually arising from tractor-trailer collisions or automobile accidents, it is not uncommon to see clients with serious back injuries which create a host of physical and mental problems for the innocent victim. If someone is rear-ended by a tractor-trailer, as an example, and suffers a significant back injury requiring a fusion or other surgical procedure, it is not uncommon at all for such a client to develop leg problems, hip problems and other associated maladies. The mental stress and emotional damage caused by permanent and intractable pain is part of the injury as well. In the unfortunate cases where clients lose their legs or suffer traumatic amputations, the injury to the leg can result in an injury to the back and the hips. In short, a vicious cycle is involved in these cases which is why it is necessary that the injured claimant have the best possible medical assistance possible.
Many times it is difficult for the medical community to establish the exact cause of pain for a particular client. Sometimes it is a herniated disc in the back, sometimes it is nerve root impingement, sometimes it is generalized nerve damage and sometimes it is simply a chronic pain syndrom due to the trauma to the spinal column. As stated, typically, the injured individual with the bad back will have problems with their leg and hips which, of course, affects all of their daily activities, not to mention their work, if they are still able to work. For these reasons, it is vital that the injured individual receive medical treatment from a Board certified orthopaedist, orthopaedic surgeon, neurologist or neurosurgeon. Depending upon the facts of the case, the mechanism of injury, the location of the injury or otherwise, one or more of these specialists may be involved as well as physical therapists. Treatment may begin with physical therapy and epidural steroid injections, but in many cases ends in surgery, particularly for the more serious back injuries.
Unless one suffers from a significant back injury, it is hard for others to truly appreciate just how disabling such injuries can be. In personal injury cases involving serious back injuries it is sometimes wise to obtain a Function Capacity Evaluation to demonstrate objectively just how the injury affects the injured individuals ability to function at performing daily tasks, whether it be stooping, lifting, bending or otherwise. Such cases are very sad, typically, because they do involve a significant impact on the individual’s lifestyle and can affect not only their work, their marriage, their family, but their overall quality of life. Sadly, such injuries oftentimes are permanent and the impact of an accident can affect someone for the rest of their natural lives, which is why it is necessary to work these cases up very carefully with the long term interest of the client being closely monitored throughout the recovery process.

As we have written before, it is becoming increasingly necessary that plaintiff’s counsel be prepared to attack the veracity and credibility of so-called “independent” experts in personal injury cases. Insurance companies and defense law firms routinely retain medical “experts” to testify that plaintiffs are not injured at all or have only suffered minor injuries. They do this by examining diagnostic tests and/or by offering testimony that the test results do not substantiate a traumatic injury. Such testimony can be extremely misleading because oftentimes a clinical diagnosis made by a treating physician is much more reliable than a so-called independent review by someone who has never seen the plaintiff much less examined them. Nonetheless, such testimony is dangerous and can often be effective if the witness offering the testimony has a good medical pedigree, as they often do, and presents a good appearance before the jury. This makes the cynical use of so-called experts extremely dangerous because by paying a fee for the so-called “independent” opinion, the jury can be mislead and an innocent victim of a negligent act can be victimized again and denied the right to fair and reasonable compensation for their injuries.
“Independent” experts oftentimes testify in back injury cases as an example of this problem. They testify that an examination of radiological films proves to them that the “back injured” claimant was not injured at all. Many experts will testify that herniated discs in a back cannot be caused by trauma or that trauma did not cause the injury complained of, etc. Such testimony is tantamount to junk science and is completely unreliable but the problem is that many jurors do not recognize this. Jurors receive sworn testimony and based on their lack of medical training actually oftentimes believe that the so-called “independent expert” is, in fact, independent when nothing could further from the truth. Thus, to be effective in representing a personal injury claimant with a bad back or neck case, the best way to go about doing so is to attack the so-called independence of the expert. Many of these witnesses receive hundreds of thousands of dollars in compensation each year from the insurance industry because they know where there bread is buttered and they know what is expected of them, which is to testify that the claimant is not injured and/or that they are malingering. This cynical approach to dispensing justice in a personal injury context is disheartening, frustrating and at times exasperating but, nonetheless, it is part and parcel of the landscape in our society. All one can do is fight against it and hope that fair and impartial jurors will see through such cynicism and will disregard the testimony of junk science experts who, for their own secondary gain, perniciously seek to influence their verdicts.