The final stage of obtaining a default judgment in a personal injury case from the defendant who failed to file an answer in a lawsuit and is avoiding the process is a "prove up" hearing. This is the hearing where you would have to prove the damages you are claiming, including any special damages (wage loss, medical expenses, etc.) and general damages (emotional disstres and pain and suffering). In some ways, this hearing is just like trial testimony. Your attorney will be asking your questions and and having you testify about the facts of your case, the incident that lead to your injury, the treatment you undewent and that you were advised you might need in the future, and how the injury affected your daily life activities as well as your emotional state.
The major advantage of this kind of hearing is that the other side will not be present there. They will not have an opportunity to testify or object to your testimony, and the judge will make the ruling based solely on the Plaintiff's testimony and any evidence presented.
If you are the Plaintiff who is supposed to be testifying at such prove up hearing, makes sure that your attorney spends sufficient time with your rehearsing your testimony and making sure that you know what to expect, so that he is able to elicit all the necessarily information for you in court the best and the most effective way possible.
Two of the most common mistakes that I see people make after being involved in an injury auto accident or any other kind of accident, as far as medical treatment goes, is (1) overtreating and (2) not treating with an MD doctor.
Overtreating means getting more treatment than you need or continuing to treat with the same healthcare professional for months even though you have been feeling for a while that the type of treatment you are receiving is ineffective. If you have been seeing a chiropractor for over four months, then you should at the very least ask him when he believes your treatment should be over and when you are expected to achieve maximum improvement. Generally, seeing a chiropractor for longer than six months will likely make both the insurance company (during settlement negotiations) and the jury (if your injury case goes to trial), look at your injuries with a greater skepticism. They will be asking why you didn't choose a more "serious" treatment, such as medication or surgery, if your injury was as bad as you make it sound.
Seeing an M.D. will significantly affect the value of your injury case. You might find a chiropractor, a physical therapist, or even an acupuncturist to be effective in alleviating you pain, but you should still see an M.D. doctor at least once or twice. The first time should take place as soon after the accident as possible for general evaluation and referral to specialists, and at the end of your treatment, to see if you need any kind of other treatment and evaluation, if you still have pain symptoms, or if you developed a new kind of symptoms. For instance, if, since the injury, you started developing headaches or double vision, you should definitely report these issues to your doctor, who then might urge you to see a neurologist.
To make sure you avoid other mistakes that would prevent you from obtaining a fair settlement for your injuries, you should consult with a personal injury lawyer
to discuss your accident, your injuries and how you should go about handling your claim, whether you do it on your own, or whether you retain an attorney to represent you.
In one of our cases involving a pedestrian in Oakland, who was hit by a Caltrans vehicle when she was crossing a street in a residential area, the Department of Transportation accusing our client of staging the accident and jumping in front of the vehicle on purpose. The only reason that they make this outrageous accusation is because approximately one year before the accident, our client had suicidal thoughts which she reported to her doctor and as due to which she voluntarily subumitted herself to a crisis facility that helps people who are thinking about comitting suicide.
The driver of the Caltrans vehicle, who hit our client, admitted that she herself has no reason to believe that the victim staged the accident or jumped on purpose. Caltrans has no witnesses or any other evidence to support their claim that the accident was staged. I am anxious to see how this case will turn out. I have a feeling that this case will actually go to trial, as Caltrans appears to be known for insisting on their version of the events no matter what new evidence is presented to them. I am also disappointed to see that a government agency, which is supposed to be trying to do "the right thing" continues to deny liability in a situation where they should be compensation my client for her injuries and damages, instead of continuing to fight this case.
There is no doubt in my mind that as our cellphones become more sophisticated and are capable of performing more functions, we will have more reasons and more temptation to use them while driving. While in the past the only distraction was being on the phone, later it became taking our eyes of the road and texting, and now it is browsing the internet and watching videos and movies.
It takes real life experience to know how devastating the effects of taking your eyes off the road for just a few second could be. Some of the most serious accidents that occurred in the San Francisco bay area were caused by a driver who was looking at his/her phone for one reason or another, and not noticing the the traffic in front was slowing down or stopped altogether, or that someone in front changed lanes, or even worse - a pedestrian or a cyclist was crossing the street.
I realize that driving without doing anything else can be very daunting, especially when you find yourself on a long drive on a freeway. There are far less dangerous options to keep yourself entertained while driving. Listening to audio books or motivational seminars is one option that I find particularly useful and enjoyable, and I suggest this to all my friends. So often we complain that we don't have time to read and learn the things you want. Use those long hours of commute for this exact purpose and you might be surprised how many interesting and useful things you can learn.
For more useful information on injury law and car accidents, please check out my San Francisco
The recent statistics in the San Francisco Bay Area suggest that more and more accidents are caused by texting and browsing internet on a cellphone while driving. It is hard to resist the temptation to use these conveniences, especially during the long commute and heavy traffic. Despite the new laws which made it illegal to text while driving in California, people continue texting and talking on their cellphones without a headset while driving.
While the most common accident caused by texting is the rear-end accident in the stop and go traffic, these kinds of accidents are usually not very serious. On the other hand, texting is particularly dangerous on the busy streets of larger cities, where the likelihood of a pedestrian crossing the street unexpectedly, or a biker swerving into your lane or a car stopping in front of you, or children crossing the street near a school is much higher than on a freeway or in smaller towns.
It is therefore critical to avoid texting while driving in the areas where there are is a lot of entertainment activity (cafes, restaurants, bars, clubs, etc...). These are the areas, where someone intoxicated can pop onto the street without thinking too much and who you can hit because you took your eyes off the street for just a few second. This kind of incident will not just be a car accident, but it will be a criminal offense on your part.
Yesterday, I had lunch with a friend, who has been an orthopedic surgeon for over 20 years. During our conversation, he reminded me of the fact that it's generally a good idea to stay away from chiropractic treatment or any kind of other "passive" back and spine manipulation if a person is diagnosed with disk herniation. This of course makes a lot of sense. If disks are already herniated / displaced, applying more mechanical pressure on them is not likely to further displace them and cause greater pain, but it can cause a substantially greater pain, turning otherwise asymptomatic (pain-free) person to the one suffering greatly from back pain. So, if you have been diagnosed with disc herniation, consult with your orthopedic surgeon and/or a neurologist before you consider obtaining chiropractic treatment or even physical therapy. For further information on disc and spinal injuries, check out my san francisco accident injury blog.
Mediation proceedings become progressively more popular among lawyers as they provide a relatively quick and normally inexpensive way of settling a case. Many courts refer filed cases to mediation or some other form of alternative dispute resolution (such as arbitration) and urge parties to settle their cases as early as possible.
As a client, as a person who has been injured and who has been suffering through pain and prolonged treatment, it's crucial that you do not make the same three mistakes that many other claimants make that prevent them from settling their case at a mediation:
1. Having unrealistic expectations about the value of your case. Most claimants base their view of what their injury case is worth on either movies or verdicts that they hear about from the media, or from friends who had "similar" cases. The media is very selective about the legal news they report. Like with all the other news, unless the case or a verdict has some kind of shocking value, why would it be wide publicized? A million dollar verdict might be reported on any given day, while dozens or even hundreds of very small verdicts or even defense verdicts where the injured person loses and doesn't get a penny are hardly ever mentioned. Moreover, the big injury cases are covered in a very incomplete and skewed way. Everyone has heard about the McDonald's hot coffee burn case, but very few people know the facts that made the jury award that large verdict in that case. It was hardly mentioned that McDonald's was warned many times not to overheat their coffee, that there was evidence that the company did it intentionally in order to maximize the amount of coffee made from the beans, and that the victim suffered serious burns. With regard to your friends or relatives who had a "similar" case, you simply have no way of knowing how similar their case is to yours. There are so many factors that come into play during litigation that virtually no two cases are identical. From insurance coverage issues, to prior history of injuries, proving liability, and the posture that the opposite side takes - these are just some of the factors that determine how your case should be handled. Thus, it is important that your settlement expectations are based on information other than the one you hear from the news, movies, and friends. And your lawyer, assuming that he is competent and trustworthy, should be one source of this information to guide you through the complex system of personal injury law and determining the fair value of compensation that you should be receiving.
2. Setting the bottom number in your mind below which you will not go, no matter what before you even go to mediation. Again, since you have no way of determining the fair settlement value of your case, you should not be setting any advanced expectations. Mediation is about keeping and open mind. This is an opportunity for the parties to find compromise to their position. Compromise means that both sides are giving something to get something in return. The insurance company or any other corporate defendants pays out sooner than they would later at trial in order to resolve the case, not incur expenses associated with actual trial, and not be exposed to the risk of being "hit" by the jury for more. The individual claimant agrees to accept lesser amount than he/she expected to get the money earlier and not wait for months or even longer till trial, to get certainty and not risk losing at trial or getting a smaller verdict after incurring trial related expenses (which is always a possibility) and in order to move on and close that part of his/her life.
3. Taking mediation personally. Some claimants treat their mediation against an employer, an insurance company or any other corporate defendant as some kind of personal grudge. They forget that as personal as this case might be for them, it's anything but personal to the insurance company. It's just another business decision for that company, and you - the claimant - should treat it as such. Most accidents are a result of negligence rather than intentional conduct. Therefore, you should not be angry at the driver who caused your injury. He likely did not do it on purpose. This means, that you should not be insulted or try to walk out at the beginning of the mediation, when the other side is offering a ridiculously low opening offer. They always do. This is just part of the game. Both sides begin the negotiations far apart hoping that by the end of the day (it's not unusual for a mediation to take a full day or even longer) and hope to reach and settlement agreement at the end of the proceedings. On few occasions that I and a few of my colleagues tried to shortcut the process and come out with our final offer right out of the gate, the mediation was a total failure, because we failed to take into account human nature. Everyone needs to feel that they accomplished something even if it's completely illusory. If the corporate defendant and its lawyers feel that they have done nothing for their business they will not be happy and will not be willing settle. So, the game of high/low has to be played at a mediation and there is simply no way around it. It's just part of the business.
Avoid making the above mistakes, and your mediation is much more likely to result in a settlement.
I have a lot of respect for the police forces as they see the worst in our society, and put their lives at risk every day trying to protect the public from crime and keeping us all safe. However, there is no excuse for police brutality and use of excessive and unnecessary force.
My associate and a friend, Jeff Kravitz, of the Kravitz Law Office is handling one such case that recently made the news in Sacramento, California. The video speaks for itself.
Any "serious" attorney who handles bigger injury cases and facing a real likelihood of jury trial knows that regardless of the facts of his client's case and his injuries, his case to a great extent depends on his client's credibility. The impression that the injured plaintiff gives to a jury is critical to his ability to recover compensation. A typical juror has his own pains and problems and is inherently skeptical of the pain of other people. Any well founded suspicion that you exaggerate your injuries and your treatment is inflated will make you come across as a whiner who probably exaggerate just about everything he says and will make the jury far less generous than they would have otherwise been.
Remember, a hero stops being a hero as soon as he considers himself one. The physical pain you are suffering, as well as your emotional distress as a result of the pain is something that the jury / defense attorneys have to infer indirectly from what happened in the injury incident and not simply take your word for it.
This means that treating longer than you reasonable should have to simply increase the amount of medical bills, or having your doctor write a report to grossly exaggerates your symptoms and injuries will likely backfire at a deposition, when it's time for you or your doctor to testify or later - at trial. This means that you should not treat longer than you feel is necessary, and you should not continue seeking the same type of treatment of too long if it proves to be ineffective.