Law Office of Arkady Itkin 

Mediation is an attempt by the parties to a civil litigation to resolve their case at an informal meeting with the assistance of a neutral, third party - a mediator. To put it simply, mediation is a process where the opposing parties meet and try to settle the case. At the beginning of the process, the parties are usually far apart in their expectation of what the injury case should settle for and hopefully with time, patience and negotiations, which may continue all day, the parties eventually meet at a dollar value which constitutes settlement. 

Like many other things, mediation is what you make of it. The role of your attorney and the mediator is to advise you on the strengths and the weaknesses of your injury claims, while the decision on whether to settle or not, and for how much, is ultimately yours. Therefore, in order to make the most out of the mediation hearing, you must have the right mindset and avoid the following, very common mistakes that plaintiffs make in injury accident cases and other claims:

1. Have an open mind about the mediation process.  One of the biggest mistakes that claimants make is going into a room with a set $ figure in mind, below which they promised to themselves that they won't settle. This is not a good approach for several reasons. First, it's a challenge for even the most experienced lawyers to put a dollar value on the case, so you can't possibly be in a good position to know what your case is worth, considering the inherent uncertainty of the litigation process and the outcome of trials. You have been hurt and you rightfully feel that you deserve to be compensated, but the settlement figure you have set in mind is probably at least in some way arbitrary. So, keep an open mind about the settlement value of the case.

2. Mediation is a Give-and-Take. Don't expect to get everything you want out of the mediation hearing. Effective mediation process requires flexibility and requires giving. When the parties reach settlement at the mediation, both are usually unhappy. The injured feels that he was shortchanged, while the insurance company feels that it might have paid too much and set a bad precedent. Mediation is a compromise of parties' position, requiring both parties to move from their existing positions closer to each other in order, at the end of the day - to find a common ground and make the case resolve.

3. Evidence v. Perception. There is a big difference between what you can prove and what you actually feel. Much of the pain from your injuries might be subjective, that is - you can feel it, but no one can see it (no x-ray, MRI and other images can show the source or the cause of the pain). Ask yourself how far you are willing to push the argument that you are in great pain, if there is no solid, objective proof of that pain?  

4. Be Patient. Most likely, the insurance company will make an insultingly low settlement offer at the beginning of your mediation hearing. Be ready for it and don't take it personally. It's just part of the game. Your lawyer will likely advise you to take the opposite position and start negotiations on your side with an equally excessively high settlement figure. Be ready for a long day of going back and forth with settlement figures that are slowly crawling closer toward each other, as this is just a standard mediation process.

There comes a time in your injury case when you finally reach a settlement agreement of your claims and you have to calculate how the settlement money will be allocated between you, the medical providers/ lien holders and your attorney. 

It's important that you keep in mind that if you are represented by an attorney, the claim of your health insurance company and the medical bills of other medical providers who hold a lien against your case are highly negotiable and in most cases they substantially reduce their charges with one or two calls from your injury lawyer. 

Under the so-called common fund doctrine, the medical provider should generally reduce their charge by at least the percentage of your attorneys' fees. In other words, if your attorney represents you on a 35% contingency fee, the health care providers who treated you for your injuries should reduce their bills by 35% or more. 

Recently, I managed to negotiate a $14,000 bill from Kaiser insurance to under $5,000 because my client's injury settlement was relatively law. 

You should remember that the representative of the medical office or the health insurance company you are engaging in negotiations with has a significant degree of discretion in the discount that he will give you on your medical bills. Thus, it's really worth being courteous, and instead of demanding reduction in the medical charges, you should try to evoke sympathy and explain why reducing charges will be fair and necessary in light of your injuries, recovery and likely necessary future treatment, if in fact you believe you will need the same. 

An important rule to remember is that if Medi-Cal paid for any of your treatment related to your injury for which you recover a settlement, you and your attorney have an affirmative obligation to reimburse Medi-Cal for at least some of the medical costs they covered. Medi-Cal's lien can also be negotiated, and a useful phone number to have to discuss the lien reduction with medi-cal is (916) 650-0490 (personal injury recovery unit).

Dog attacks are a more common and a more devastating problem than most people realize. As with most trends, good or bad, California leads the nation in both the number of dog attacks and dog attack-related fatalities. 

In California, the primary statute for dealing with dog bit cases is civil Code section 3342 (the "Dog Bite Statute"). Under that section, the dog owners face strict liability when their dog bites a person "regardless of former viciousness of the dog or the owner's knowledge of such viciousness." A victim of the dog bite must who only that the dog bit him or her and caused injury requiring medical attention and care. One that is established, the defendant must pay for all the damages caused by hi or her dog.  The strict liability rule eliminates the need to prove fault and significantly simplifies the claim. 

California's courts have clearly held that section 3342 is not limited only to "bites" causing puncture wounds or other physical injury directly related to the dog having "bitten" the victim. Liability is found in cases where the dog "indirectly" injuries a person, by, for instance, pulling a person by his pants and off the ladder, even if the dog's teeth never touched that person's skin. 

It is important to note that Civil Code section 3342 only applies of the victim was in a public place or "lawfully in a private place" at the time of the attack. Because most dog attacks take place on the dog owner's property, trespassing is one of the favorite defenses of insurance attorneys. Thus, if you have been attacked by a dog, it might be critical to make sure that you obtain statements from any wi

A compression fracture is a fracture of the spine or a vertebrae, and it occurs when a number of vertebrae in the spine are broken. A compression fracture can occur throughout the spine, but most commonly affects two or more vertebrae within the lower thoraci and upper lumbar region, sometimes referred to as the thoacolumbar section of the back. 

A compression fracture is nearly always a serious injury, bacause the spinal cord is near each of the vertebrae and is at risk whenver they shift. A compression fracture is most likely to be caused by a serious trauma to the back and sine, particularly in a case of falling from a height. Because of the force necessary to cause compression fractures, they often occur with other injureis, including damage to the spinal cord and severe ligament damage.  One of my clients recently sustained a compression fracture while riding a bicycle in the mission district in San Francisco. He was broadsided by a car and thrown off his bicylce onto the ground. Considering the circumstances, he was lucky to have survived and not being run over by the oncoming traffic (as it was late at night and the traffic was very light). The injured bicylcist was place on temporarily disability almost immediately and was taken off work for two months.

The symptoms of a compression fracture may include severe limitation of range of motion where a person is unable to turn or bend forward/backwards as freely as he/she would otherwise be able to. In addition, pinching of the spinal cord itself may cause odd tingling or numbness througout the body. 

If you have been diagnosed with compression fracture, you should be immobilized to prevent damage to the spinal cord. A rigid, padded surface to support your spine and back is ideal, and of course emergency care might very likely be necessary. In most cases, a surgery is unnecessary to heal a compression fracutre. Wearing a brace or case and allowing the impact part of your body to rest and heal in addition to taking anti-inflammatory medication will allow the body to repair damage within 6 to 10 weeks in many cases of stable fractures. 

It is important to note that that pateints who have one compression fracture are more likely to have more such injuries in the future, and therefore prevention of future compression fractures must be address. A doctor should advise patients what activities he/she should avoid to minimize the risk of recurring injury.

Generally, under California law, punitive damages are only available if there is an evidence that the conduct of the party at fault was either intentional and malicious or in conscious disregard for the consequences. As such, punitive damages are not available in the vast majority of injury accidents which are caused by ordinary negligence of a driver or another party that should have exercised greater care in acting in a safe manner. 

This means that punitive damages may be available against a driver who causes an accident intentionally or is motivated by some kind of ill will when acting carelessly on the road. Recently, I represented a person who was injured by another driver who was deliberately chasing him after being "cut" on the road by my client, caught up with him and broadsided my client, causing him severe injuries and mild brain trauma.

The opposing counsel, defending the insurance company of the driver at fault, didn't seriously contest my argument that the defendant, in addition to paying for the typical accident damages (medical expenses, wage loss, pain and suffering, emotional distress, etc.) should be liable for punitive damages.

Having studied the more and the less serious injury accidents in San Francisco that involve pedestrians, I noticed that there are two common (but not often discussed) situations in which a driver is more likely to hit a pedestrian when making a right turn:

1. Turning right while making sure that the road is clear for upcoming traffic. Have you ever caught yourself turning rolling forward and right at an intersection while looking to your left to make sure that the road is clear for upcoming traffic? This is a very dangerous move, as the pedestrian who might have started crossing the street just assumes that you will stop without even making sure that you see him. This might end up in a low-speed but nevertheless a serious injury accident. 

2. Not looking far enough to your right when making a right turn. It is especially important to look all the way to the right to make sure that you see all the pedestrian who are crossing the street and who are just about to cross the street on the the more crowded streets of downtown San Francisco. No looking all the way to your right, where the pedestrians actually begin crossing the street, increases the risk of hitting a pedestrian at a point where the vehicle almost completed the right turn, impacting the pedestrian with its side. 

Keep the above two warnings in mind when you turn right on a red light, and these turns will be much safer - for pedestrians and for you.

A typical scenario: a person sustained an injury in an auto-accident. At first, that injury might not seem or feel to be very serious, but the injured still wishes to get medical care. He gets one of his friends to refer him to a local Chiropractor who treats him for a 3-5 months without referring the patient to other specialists. 

This kind of treatment history will necessarily reduce the recovery. I work with some great Chiropractors in San Francisco and Sacramento areas who do a great job for a very reasonable rates for their patients, many of whom are recovering from serious injury accidents. However, I am also aware of the general perception of Chiropractic professional in the community. And the insurance companies are aware of this skeptical perception as well. They know, that the opinion of a Chiropractor is not nearly as credible as that of an a medical doctor. Further, a successful argument can be made by the defense that if an injured person only sought treatment from a chiropractor, this means that he/she wasn't injured seriously; otherwise he would further treatment elsewhere. 

Even more importantly, not having a thorough medical examination with an M.D. or an orthopedic surgeon may aggravate a very serious injury (injury to discus, vertebrae, etc...) and make the recovery much slower and painful if not diagnosed and addressed properly. 

Thus, it is very important that you see your primary physician at least once and discuss referral to an orthopedic specialist or another doctor who can take your x-rays and examine your injuries more thoroughly for possible disc protrusions/bulges, lacerations, fractures, and other injuries that might not cause as much pain at first, but the ones that tend to also exacerbate with time, if not treated promptly.

One of the most important elements of proving a slip-and-fall claim is demonstrating the the owner of the premises knew or was on notice of dangerous condition, some time before the slip-and-call injury. After all, the owner or the operator of the property is generally held liable only if he/she knew or had a reason to know of the dangerous condition, and failed to take action to remedy it.

Thus, if you notice a condition on the property that you might be using or renting, it's in your best interest to notify the owner of that condition in writing. If there is no response to your letter/fax/e-mail and the property owner doesn't fix the condition within a month or so, continue follow up in writing. Make sure that you have a proof that your letters were received. If you send a letter by mail, make sure that you receive confirmation of delivery. If you fax your letters, keep the facsimile transmission confirmation sheets, and if you e-mail, request read-receipt (although usually it is presumed that an e-mail was received).

Later, if you have the bad luck of being injured because of the dangerous condition that wasn't repaired as requested, those letters will be critical evidence in proving negligence and your ability to recover for your injuries and damages.

Your inability to pay medical bills to get that treatment you need and deserve should never be the reason to actually not be treated after being involved in a car accident or any other injury incident - especially if you know that there is likely to be an insurance coverage by the party at fault. Hundreds of persons injured in the car, motorcycle and other accidents in San Francisco decide not to seek medical treatment because they don't have health insurance and their inability to pay for medical treatment out of pocket.

Many San Francisco injury lawyers, however, have established relationship with doctors who treat injured persons on a lien basis - that is, the doctor accept the risk of paying paid only if and when their patient's injury claim is settled. This means that you are likely to not be required to pay any out-of-pocket expenses until your injury case settles.

If you are unable to pay medical bills and get the treatment for your injuries, this is exactly the time when you should consider hiring a an experienced San Francisco injury lawyer. An attorney will likely refer you to the doctor or several physicians who will be willing to treat you on a lien basis (that is, they agree to be paid only if and when your injury claim settles). Later, when your claim settles, your attorney will be able to negotiate your medical charges with the providers and substantially reduce them, to make sure that you receive greater recovery in your claim.

Some of the most serious injuries are caused by negligent entrustment of dangerous devices or vehicles. Consider the following situation which is very similar to the case a recently handled: A, B, and C are sitting at A's home and having drinks. After a few drinks, A gives B keys to his A's ATV, and B decides to take a ride. B runs the vehicle into the tree. B's body is thrown of the vehicle and against the tree. B suffers debilitating injury and ends up being partially paralyzed.

Although one could argue that ethically B is just as at fault of riding ATV drunk as A for letting him borrow the vehicle, A will likely be liable for B's injuries and damages under the negligent entrustment negligence theory, because A knew or should have known that B was under the influence and was unable to safely operate the vehicle.   

In that case, the ATV was not insured (as off-road vehicles do not have to be insured in California). If A is a homeowner, his homeowner's insurance policy will likely cover the injuries caused through the use of vehicle kept on the insured property.