Do You Have Questions About Coeur d’Alene Personal Injury Cases? We Have Answers

Idaho car and truck accident cases can be confusing; there can be issues involving complex concepts such as negligence, liability, damages, and insurance coverage. So, it is natural for you to have questions if you or a family member has been injured in a serious accident. Read this page for our answers to frequently asked questions about Coeur d’Alene personal injury lawsuits, and contact us for help with the answers you need for your specific situation.

Automobile Accident

  • Why Can’t My Family and Friends Attend My Personal Injury Trial?

    Trials are stressful experiences for most clients who have been injured in a car crash or by other negligent acts committed by persons or businesses. Nothing would be more natural than for a person in trial to want to have her friends and family members in the courtroom. Here’s why that is normally not permitted, at least for part of the trial.

    Most Idaho trial judges enforce a type of ‘exclusionary rule’ which states that persons who will be called as witnesses during the trial may not sit in the courtroom before they testify. The reason for this rule is that the judge does not want the testimony of one witness to be tainted by the testimony of a previous witness. For example, assume that one of the key issues in the trial is the speed of one vehicles involved in a car crash. The judge will not want a witness sitting in the courtroom while four or five people estimate the vehicle speed if that witness will later be testifying concerning the issue of speed.

    Because it is frequently the case that friends and family of the injured persons will be testifying at trial, these same persons will therefore be excluded from sitting in the courtroom until after they have testified. Moreover, even after they testify, if there is a chance that they will be re-called to the witness stand, they will still be barred from the courtroom.

    An experienced personal injury attorney will carefully explain these procedures to his client before the trial begins, so that the client is not painfully surprised when her friends and family are barred from the courtroom.

  • What is the Empty Chair Defense?

    John Smith has been seriously injured in a car accident.  Medical bills exceed $50,000.  Smith has been out of work for almost a year and will require months of rehabilitation.  The driver of the at-fault vehicle has insurance, but the insurance company is refusing to enter into serious settlement discussions.

    John Smith retains a personal injury attorney to recover obtain a fair financial compensation for the losses he has suffered.  During their initial meeting, John mentions that when he applied his brakes to try to avoid the accident, the brakes seemed slow to respond.

    At trial, the attorney hired by the other driver’s insurance company argues that the accident was totally avoidable if not for the defective brakes of John’s car.   The attorney argues that the blame for John’s injuries belongs to the manufacturer of John’s car.

    This is the classic “empty chair” defense used by insurance attorneys.  Because John’s attorney did not sue the car manufacturer, that company is not in court to defend itself.

    Now, you might be tempted to think that John’s attorney should have sued both the driver and the manufacturer.  However, the mere act of suing the manufacturer sends a message to the jury the John’s attorney does not believe that the driver is fully responsible for the collision.

    There is no easy answer to this dilemma.  For this reason, a person injured due to the negligence of another person or corporation should hire an experienced personal injury attorney to navigate these treacherous waters.

  • What is Comparative Negligence?

    Suppose you were in a motor vehicle collision caused when the other driver went through a stop sign. But assume that you were driving 15 miles per hour over the speed limit. Does your own negligence prevent you from recovering for your medical bills and other monetary losses caused by the collision? In Idaho, the answer is no.

    Idaho follows the comparative negligence doctrine. Under this doctrine, the injured person (Plaintiff) can still sue the other driver as long as the other driver’s negligence was greater than the Plaintiff’s negligence. However, the money recovered by the Plaintiff will be reduced by the percentage of the Plaintiffs’ negligence.

    Here’s how this would work in the example above. Assume that the injured Plaintiff sustained $100,000 in personal injury damages, but the jury found the Plaintiff 20% at fault for the accident for driving at excessive speed. The verdict would be reduced by 20%, with the Plaintiff receiving $80,000.

  • What is a Whiplash Injury?

    Like the phrase ‘heart attack’, whiplash is not a precise medical term, but is rather a word used to describe a common injury sustained in motor vehicle collisions. It describes the hyperflexion and hyperextension to the neck which occurs when there is sudden acceleration or deceleration of a motor vehicle, such as when a car suddenly crashes into another car or is suddenly struck from the rear.

    Approximately one million whiplash injuries occur each year in the U.S. from car crashes. Although whiplash injuries can occur in speeds as low as 15 miles an hour, the greater the speed at the time of impact, the greater the potential for injury. Higher speeds are more likely to produce damage to bones, discs, muscles and tendons in the neck and upper back. About 5000 whiplash injuries each year produce quadriplegia.

    Symptoms of whiplash injury include pain and aching in the neck and upper back, radiating pain to the shoulders and arms, the sensation of ‘pins and needles’ in the arms, and headaches. Symptoms can occur at the time of collision but often develop several days after the collision.

  • What is an Independent Medical Examination?

    A person injured in a car crash or some other type of accident will often need to file a lawsuit to recover money damages to compensate him or her for injuries sustained.  The attorney representing the insurance company for the at-fault party will frequently request that the injured person (the ‘plaintiff’’) undergo an ‘independent medical examination.’

    What this means is that the insurance company does not trust the injured person’s doctor to accurately describe the nature and extent of medical problems caused by the accident.  The court rules in both state and federal court permit the insurance companies to have their own doctor conduct these examinations.

    It is a misnomer to refer to them as ‘independent’ medical examinations.  A more accurate term would be ‘defense’ medical examination. The physicians who conduct these examinations tend to fall into one of the following two categories:

    1. Conscientious and honest physicians who are performing a legitimate function in double-checking the conclusions of the injured person’s treating physician.
    2. Less than honest physicians who wish to make lots of money shilling for insurance companies.

    An experienced personal injury attorney can use the following approaches to blunt the impact of defense medical exams.

    1. In cases where a conscientious physician conducts the exam, the attorney can point out to the jury the fact that a physician who examines a person for one hour cannot possibly duplicate the clinical observations of the treating physician who has cared for the person for many months or years.
    2. In cases where the examining physician is a known insurance toady, the attorney can elicit testimony from the physician concerning the large volume of money he/shee makes conducting pro-insurance medical exams.

  • What is a Herniated Disc?

    Persons injured in a motor vehicle accident may end up with a herniated disc in the spine.  The spinal bones (vertebrae) have cushions between them in the form of spongy discs.   Healthy discs act as shock absorbers and keep the spine flexible.  The impact of a car accident can cause one or more of these discs to be damaged.  In some cases, the disc breaks open – which is referred to as a herniated disc.

    A herniated disc can put pressure on the nerve roots that pass through the spine.  In some cases, the gel making up the disc can actually leak out through tears in the disc surface.

    The resulting pressure on the spinal nerve can cause pain, weakness or numbness.  The pain can exist at the site of the herniation, but it can also radiate to the arms in the case of a neck disc (cervical), and to the legs in the case of a low back disc (lumbar).

    Treatment of herniated disc ranges from medication and conservative care, all the way to surgery.  Modern surgical intervention includes less invasive endoscopic surgery.

    Some persons who suffer a herniated disc are able to continue their usual occupation.  Others, however, are advised to change occupation to avoid risk of additional injury.

  • Are Pain and Suffering Bogus Damage Categories?

    A common struggle for attorneys is to explain to a jury the importance of awarding damages for an injured person’s pain and suffering.

    After all, the jury can see an X-ray of a broken bone.  They can see photographs of tissue damage.  They can see an MRI showing damage to the brain.  But nobody can see pain.  Yet we know that pain is real; it exists.

    We were finally able to grasp a way to understand pain and suffering by examining the following two principles and examples.

    1. Although we can’t see pain, we also can’t see joy, grief, happiness, love and gratitude.  Yet, the fact that we can’t see these things does not mean they are not real.  For most people, love is the most important thing in life.  How can one seriously say that love doesn’t exist because we can’t see it?
    2. Consider the example of a 65 year old man blinded in a serious motor vehicle collision (perhaps by glass or a head injury).  Once the man is released from the hospital, he will incur no more medical bills since there is no cure for the blindness.  Because he is retired and receiving a pension, he will not suffer any loss of earning.  But can we seriously argue that the jury should only award money to pay for a two day hospital stay, and award nothing for the fact that the man will be blind for the remainder of his life?

    So, when talking to juries about pain and suffering, we are talking about some of the most important things in life.

    A herniated disc can put pressure on the nerve roots that pass through the spine.  In some cases, the gel making up the disc can actually leak out through tears in the disc surface.

    The resulting pressure on the spinal nerve can cause pain, weakness or numbness.  The pain can exist at the site of the herniation, but it can also radiate to the arms in the case of a neck disc (cervical), and to the legs in the case of a low back disc (lumbar).

    Treatment of herniated disc ranges from medication and conservative care, all the way to surgery.  Modern surgical intervention includes less invasive endoscopic surgery.

    Some persons who suffer a herniated disc are able to continue their usual occupation.  Others, however, are advised to change occupation to avoid risk of additional injury.

  • Am I Liable for Injuries Committed by Someone Else Driving My Car?

    Normally, a person is only liable for his or her own acts of negligence.  This principle is also true of corporations.  However, there are exceptions to this rule.

    For example, assume that John Smith is delivering pizzas for The Gorgonzola Pizza company.  If Smith drives his van negligently, and causes injury to another driver, Gorgonzola Pizza would be required to pay money damages for the collision because Smith was acting as the agent of Gorgonzola, driving in the course and scope of his employment.  The technical legal term for this principle is the doctrine of vicarious liability.

    But consider a different set of facts.  Assume that Smith simply purchases large quantities of pizzas as take-out from Gorgonzola, and sells and delivers them himself to make a profit.  If Smith causes a car crash in these circumstances, Gorgonzola would not be liable because Smith would be an independent contractor, not an agent.

    Finally, consider an assumption that probably occurs very frequently for many car owners.  Assume that a friend wishes to borrow your car to run some errands for himself.  Because the friend is not acting on your behalf, but only his own, you might assume that you would not be liable for injuries he causes due to negligence.  However, there is an Idaho statute that would make you liable for the injuries he causes as long as he borrowed the car with your permission.  This rule was reaffirmed by the Supreme Court of Idaho as recently as 2013 in the case of Taft v. Jumbo Foods, in which the court stated:

    [blockquote] Pursuant to I.C. § 49–2417(1), “Every owner of a motor vehicle is liable and responsible for the death of or injury to a person … resulting from negligence in the operation of his motor vehicle … by any person using or operating the vehicle with the permission, expressed or implied, of the owner.” An “owner” is someone “having the property in or title to a vehicle.” I.C. § 49–116(3). The owner of a vehicle is not automatically liable for the negligence of just any person driving it. Idaho Code § 49–2417(1)“imputes a driver’s negligence to the owner of an automobile only when a ‘person using or operating the same with the permission, expressed or implied, of such owner,’ is driving.” [/blockquote]

    Given the potential financial losses at stake, all car owners should be careful in choosing whom they will permit to borrow their cars.

  • Are brain injuries common on car accidents?

    Recent medical studies have demonstrated that mild traumatic brain injury often accompanies car crashes involving speeds of 35 mph or more.  Additionally, TBI (traumatic brain injury) can occur even in the absence of a skull fracture or loss of consciousness.  A brain MRI (a type of x-ray) often does not detect milder forms of brain injury.  Therefore, an injured person should make note of the typical symptoms that accompany mild traumatic brain injury.  These can be viewed here — http://www.biausa.org/mild-brain-injury.htm
  • What if I am injured in a car crash caused by another driver who is killed in the crash? Can I still sue to obtain money damages for my injuries?

    Yes.  However, in addition to timely filing suit before the statute of limitations, it will also be necessary to timely file a probate claim with the estate of the deceased driver.
  • What if I am injured in a car crash and the other driver has no insurance?

    Sometimes a crash is caused by an uninsured driver.  More commonly, a crash is caused by a driver without enough insurance (low policy limits).  In these circumstances your UIM insurance kicks in and provides the money to compensate you for your injuries.  UIM stands for Uninsured (or Underinsured) Motorist coverage.  Because this coverage is optional, it is very important that you purchase this coverage at the time you buy car insurance.  Otherwise, in the event of a crash caused by an irresponsible driver, you may be left financially destitute.

Commercial Truck Accident

  • Why It’s Important to Get Prompt Medical Attention if You Have Been Injured in an Accident

    Not obtaining prompt medical attention for your injuries or not following your doctor’s treatment recommendations will prove to be very detrimental to your ability to pursue a claim for personal injuries.

    If you go to a doctor for the first time three months after your accident, the insurance company will not take your case seriously.  The claims adjuster will argue that you must have sustained injury from some incident that occurred after the accident at issue in your case.

    If you do not follow your doctor’s treatment recommendations, the claims adjuster has two additional arguments.  First, he can argue that you did not follow the treatment program because you were not really hurt.  Or, she can argue that, under the law, you failed to “mitigate your damages” by not following the treatment protocol recommended by your doctor.  Unfortunately, many injured persons cannot afford to get proper medical treatment until their cases settle.  But failure to get treatment can mean a substantially reduced settlement.  This is a real catch-22 that injured persons face while recovering from their injuries.

Premises Liability

  • What is a premises liability case?

    Sometimes people are injured due to a fall occurring in a store or other business. In other cases, people are injured when a heavy object drops from a shelf, injuring them.   These injuries do not automatically give rise to a right to sue the store.  A successful lawsuit will depend upon proving that the injury was caused by store’s negligence.  For example, if a person in a grocery store slips and falls on the contents of a broken jar of jam, a successful lawsuit will depend upon proving that the broken jar had been on the floor for an extended time, and that the store made no effort to clean up the spill.

Wrongful Death

  • What Is a Wrongful Death Claim?

    If someone is killed due to the carelessness or negligence of another person or a corporation, this loss of life may give rise to a wrongful death claim.  A lawsuit for money damages may be brought against the at-fault party that caused the death.  Idaho law lists the categories of family members who can bring this lawsuit, sometimes called “statutory plaintiffs.”  The money damages that can be recovered include loss of future income and financial support and loss of companionship, love and affection.

    Idaho law provides for times limits for bringing wrongful death lawsuits.  Therefore, if you have lost a family member due to the negligence of another, you should not delay in consulting an experienced personal injury attorney to learn your rights.

  • What is a wrongful death case?

    If a person is killed due to the negligence of another person or business, the relatives of the deceased have a right to sue for money damages for the loss of a loved one.  Depending on their relationship to the deceased, these damages can include loss of future income and support, and the loss of the love and companionship of the deceased.

Nursing Home Negligence

  • Are there federal laws spelling out the duties owed to elderly person in nursing home?

    Yes, in addition to any state laws that apply, federal law protects the residents of long term health care facilities.  These regulations can be found at 42 CFR, Part 483.  These regulations include a patient’s bill of rights.

General

  • What Does a Life Care Planner Do?

    In an Idaho personal injury case involving a catastrophic injury, the attorney for the injured person will frequently hire a life care planner to testify at trial.

    The Life Care Plan

    AdobeStockIn a catastrophic injury, a Life Care Plan is a detailed future projection of the cost of the medical care, rehabilitative care and residential care necessitated by an injury. To illustrate the type of case that requires a Life Care Plan, consider the following two cases.

    Case # 1 – John Smith is injured in a car accident, resulting in the amputation of his left foot.

    At trial the jury would review all of the past hospital and doctor bills resulting from the injury to and amputation of the foot. In addition, an orthotist will testify that the artificial foot and brace will have to be replaced approximately every three years. Then, based upon the cost of each replacement, coupled with the life expectancy of the injured person, the jury will be able to calculate the cost of future medical care required by the amputation.

    Case # 2 – Mary Smith is driving a car that is struck at high speed by a tractor trailer. She sustains a severe spinal injury and significant brain damage. Her medical bills prior to the date of trial total $120,000. She is no longer able to feed or dress herself and is confined to a wheelchair.

    At trial Mary’s attorney will need to present a Life Care Plan to the jury because her future care will be so extensive and may change over the years. The Plan will need to include projected costs for the following:

    —       The expense of having a CNA come to the home to feed, bathe and dress Mary.

    —       The expense of multiple physician visits every year to monitor her condition.

    —       The very high cost of rehabilitation efforts designed to improve the quality of her life and prevent deterioration from immobility.

    —       The cost of 24/7 residential care that may be required when Mary’s husband becomes too old or ill to care for her at home.

    Qualifications of a Life Care Planner

    Life Care Planners generally have a background in nursing or related health care profession.  However, they will require additional education and training in order to navigate the combined worlds of law and medicine. There are a number of organizations that provide training and certification for Life Care Planners.

    This Coeur d’Alene attorney has hired many experts while representing people injured due injured due to the negligence of others. Contact him if you need help or have questions about your injury claim at 208-215-2255 or by filling out the contact form.

  • Can I File an Appeal if I lose a Personal Injury Case at Trial?

    Most car accident lawsuits and other injury lawsuits settle before trial.  Approximately 5% end up going to trial before a jury. The losing party generally has a right to appeal a jury verdict. However, the fact that a losing party has the right to appeal does not necessarily mean that such an appeal is meritorious. For an appeal to be successful, at least one of the following two events must have occurred at trial.

    1.      An error of law committed by the trial judge.

    2.      An error of fact made by the jury.

    Let’s examine these two categories.

    An error of law made by the judge

    Render illustration of Court of Appeals title on Legal Documents During the course of a trial, and even prior to trial, the judge assigned to the case makes many legal rulings. For example, the judge decides which jury instructions will be given to the jury after closing argument.  The judge rules on the admissibility of evidence when he sustains or overrules an objection made by the attorneys during trial.  The judge also decides what evidence is admissible at trial and which evidence is disallowed.

    If the judge makes a significant error in any of these decisions, the appeals court may throw out the jury verdict and order a new trial.  However, the judge’s error must be one that could significantly affect the outcome of the case. For example in a car accident trial the judge may decide that, due to a shortage of time, the injured person’s attorney can call three or four of the Plaintiff’s friends to testify about the impact of the injury on that his life, but disallow the request to call six or seven witnesses for that purpose. Even if the appeals court were to find that this ruling was an error, it would not be considered significant enough to require a new trial.

    On the other hand, if the judge were to decide to save time by refusing to allow the Plaintiff’s attorney to call his client’s treating physician as a witness, the court of appeals would likely decide that this is a very significant error and therefore would throw out the verdict and order a new trial.

    An error of fact made by the jury

    Here, the requirements for a successful appeal are much tougher in the State of Idaho. It is not enough to convince the appeals court that the jury made an error in evaluating the evidence. Rather, a verdict will only be thrown out if the findings of the jury are so insuffiently supported by the evidence at trial that no reasonable person would accept the evidence as adequate to reach that decision.

    Finally, it is important to remember that appeals are expensive.  Just paying the court reporter to transcribe several days of trial testimony can cost thousand of dollars.

    Contact us if you need help or have questions about your injury claim at 208-215-2255 or by filling out the contact form.

  • Is it Okay to Change Doctors While Being Treated for a Car Accident?

    A person injured due to the negligence of others in Coeur d’Alene, such as in a car crash, will generally need to be seeing a physician in order to recover from these injuries.  In addition to prescribing medication, the physician may also order physical therapy, diagnostic procedures and, in some cases, surgery.

    Unfortunately, many of my clients come to me months into treatment and plainly state, “I’m not getting well. Is it okay for me to change doctors?”outpatient clinic

    Answering this question first requires to answer a preliminary question – What is primary reason the client is seeing a doctor? Answer —

    • It is NOT to build a better personal injury case.
    • It is NOT to please the insurance company or insurance attorney.
    • It is NOT to run up the amount of medical bills to make the case seem larger.

    No, the primary reason the client is see a doctor is to GET WELL!  That fact should govern all other decisions that the client makes regarding medical care.

    Changing Doctors For a Second Opinion

    Now, to answer the original question – No, there is nothing wrong with either getting a second opinion from another physician and, if appropriate, changing physicians. Many clients worry that changing physicians will cause the insurance company to argue that the client is “doctor shopping” in order to find a doctor who will exaggerate the severity of the injury. Does this sometimes happen?  Yes, but who cares? The primary goal of getting medical treatment is to get well. If a client believes that another physician can help her get well faster and more completely, she should not be ashamed of changing physicians.

    Look, insurance companies sometimes act like they run the injury claims industry, but the fact is that claims adjusters do not attend medical school and they should not dictate how injured persons choose their health care providers.

    Contact us if you need help or have questions about your injury claim at 208-215-2255 or by filling out the contact form.

  • What Happens if I Ignore a Subpoena?

    In order for an attorney to represent an injured person in a car accident case it is usually necessary to take the deposition of key witnesses or to have those witnesses testify at trial. Sometimes witnesses are willing to appear voluntarily. But often it is necessary to compel their attendance through the use of a subpoena.Court ordered subpoenaA subpoena is a formal document, issued either by an attorney court court clerk, requiring a person to appear and testify in a civil or criminal case. Assuming that the subpoena is properly issued and served on a person, the failure to obey the subpoena can result in a person being held in contempt of court by the trial judge. Contempt can mean a fine or jail or both. Therefore, ignoring a subpoena is quite serious.Having said that, it is important to point out that a subpoena cannot only be enforced if it is validly issued and properly served on the person.  For example, the court issuing the subpoena must have legal jurisdiction over the person served. So, a subpoena issued by a Washington State Court may not necessarily be enforceable if served on a person residing in Idaho. By contrast, Federal District Courts have authority to issue subpoenas nationwide.A subpoena must also be served on the person whose testimony is sought. Generally this means being physically handed to the person, although some court rules allow a subpoena to be served on any adult living in the same household.  Some court rules even allow service by mail.

    This is an area where you definitely do not want to make a mistake. If you have any doubts about whether you have been properly served by a validly issued subpoena you should consult an attorney in order to be sure. Fortunately the rules in most states provide that a person subpoenaed to a deposition or trial is entitled to an attendance fee.

    Issuing a subpoena can also be risky for the attorney signing the subpoena (and her client). Why? Because witnesses who cannot be persuaded to voluntarily appear at trial often turn hostile and provide damaging testimony, even if the testimony is not true. It’s a kind of pay-back by a person who is annoyed about being inconveniently dragged to court to testify. Accordingly, an experienced personal injury attorney will often decide to forego the testimony of a witness who is adamant about appearing in court, even if that person could be compelled with a subpoena.

  • Can One Attorney Represent an Injured Driver and Injured Passenger in a Car Accident?

    It is often the case that more than one occupant of an automobile is injured in a car crash.  All things being equal, it is usually less costly and more efficient if all the occupants are represented by one attorney in the resulting personal injury lawsuit.  However, the ethics rules that apply to attorneys may, in come cases, prevent a single attorney from representing all the injured occupants.stop

    The Bar Association ethics rules forbid an attorney from representing two or more persons in the same case if doing so would create a conflict of interest. In car accident cases, there would be no conflict of interest in the following types of situations:

    —         The driver was stopped at a red light and rear-ended, injuring both the driver and the occupants.

    —         The driver was proceeding through an intersection and the collision was caused by another vehicle that went passed a stop sign without stopping.

    However, in the following cases the ethics rules would prevent an attorney from representing multiple parties injured in the crash:

    —         The driver was proceeding through an intersection and the collision was caused by another vehicle failing to stop at a stop sign AND that same person claims that the other driver was speeding.

    —         The crash was caused when one vehicle was passing another vehicle and was struck by a car whose driver states that the first vehicle failed to signal before passing.

    The reason these last two cases pose a conflict of interest is that the injured passenger should have the right to argue that his driver contributed to the events that caused the crash. This right is even more important in cases where the other driver does not have sufficient insurance to cover all the medical bills and other damages sustained by the injured occupants.

    It is very important that injured clients be zealously and competently represented by a personal injury attorney who has totally and undivided loyalty to the client.

  • When is the Right Time to Settle an Injury Lawsuit?

    Most people seriously injured in a car accident usually seek the services of a personal injury attorney in order to obtain a fair financial settlement for their case.  The responsibilities of that attorney include not only gathering the medical records and other evidence to properly present the case, but also consideration of when to try to settle the case short of a trial.  In this regard, there are dangers in settling a case too early and dangers in settling the case too later.orderedSettling the case too early:

    The orthopedic and other injuries suffered by a person involved in a car crash often take several months to fully manifest themselves.  Meanwhile, the insurance adjuster is usually in a hurry to settle the case quickly and close the file.  The temptation to settle to early is often experienced by the injured person as well, because personal finances usually suffer after a person is injured due to someone’s negligence.  However, once a settlement takes place and an insurance release is signed, the injured person can never go back and re-open the case to obtain additional compensation.  There have been many cases where an injured person receives conservative therapy for a back injury, settles the case, and later is told that expensive back surgery is needed, with a resulting significant loss of income while recuperating.

    Settling the case too late:

    While a person is recovering from an Idaho car accident medically bills are often paid by a health insurer such as Blue Cross or Regence.  By law, those health insurers have a right to obtain partial or full reimbursement for those payments from the eventual settlement or jury verdict in the personal injury case.  If the at-fault driver has low policy limits (for example, $25,000), waiting too long to settle while the patient receives expensive medical care may result in the entire settlement going to Blue Cross or Regence, with little or nothing going to the injured person.

    For the above reasons it is important that people injured in car wrecks seek out only experienced personal injury attorneys to represent them.

    The Bar Association ethics rules forbid an attorney from representing two or more persons in the same case if doing so would create a conflict of interest. In car accident cases, there would be no conflict of interest in the following types of situations:

    —         The driver was stopped at a red light and rear-ended, injuring both the driver and the occupants.

    —         The driver was proceeding through an intersection and the collision was caused by another vehicle that went passed a stop sign without stopping.

    However, in the following cases the ethics rules would prevent an attorney from representing multiple parties injured in the crash:

    —         The driver was proceeding through an intersection and the collision was caused by another vehicle failing to stop at a stop sign AND that same person claims that the other driver was speeding.

    —         The crash was caused when one vehicle was passing another vehicle and was struck by a car whose driver states that the first vehicle failed to signal before passing.

    The reason these last two cases pose a conflict of interest is that the injured passenger should have the right to argue that his driver contributed to the events that caused the crash. This right is even more important in cases where the other driver does not have sufficient insurance to cover all the medical bills and other damages sustained by the injured occupants.

    It is very important that injured clients be zealously and competently represented by a personal injury attorney who has totally and undivided loyalty to the client.

  • Why I Want My Injured Clients to Get Well

    In a personal injury case, the injured client will receive a money payment based upon the severity of the injury and the probable length of disability and loss of income. Because personal injury attorneys base their fees on a percentage of the total dollar recovery, you might think that the attorney would not want the client to make a quick recovery from the injury. Unfortunately, that may be true for some attorneys, but it is my policy to encourage my Idaho clients to do whatever it takes to make rapid progress toward recovery from their injury. Some injuries are permanently disabling but, even here, clients are encouraged to work with their doctors to achieve the best outcome for their condition.

  • Why It’s a Mistake to Hide Negative Information from Your Personal Injury Attorney

    Sometimes, clients are hesitant to tell their attorneys about past accidents, injuries, and illnesses.  They worry that this information will cause their attorneys to think less of their cases or cause their attorneys to work less aggressively in getting good results.

    First of all, put yourself at ease.  An experienced trial attorney knows that very few people come to his or her office without some amount of prior health history.  Your attorney can work with this information if it is candidly and promptly reported early in the case.

    Besides, the one thing you can count on is that the opposing attorney WILL FIND OUT THIS INFORMATION!  It is much better if your attorney finds out first, so he can help you address these issues before your deposition is taken in the personal injury lawsuit.  Remember, everything you say to your attorney is protected by the attorney/client privilege.  By fully informing your attorney, you enable him or her to sift through what information must be disclosed to the insurance company and which information is so private that it need not be disclosed.

  • Why Didn’t My Lawyer Attack the Witness Who Was Lying in Court?

    A loud and angry cross-examination of a sleazy witness makes for great cinema and television, but is not always a good idea in court.

    The sad fact is that people frequently lie in court.  In a personal injury case, these lies may mean that a truly injured person could be denied the financial damages required to pay medical bills and other expenses.  An experienced trial attorney will take steps to make sure that the jury knows that an untruthful witness is not to be believed.

    Yet, usually the most effective way to do this is not for the attorney to act belligerent and aggressive.  Frankly, this can create jury sympathy for an otherwise unsympathetic lying witness.

    A more effective approach is for the attorney to carefully and methodically ask questions of the witness in such a way that the lies start to unravel.  There is no need to become angry when doing this.  In fact, it is usually more effective when done in an understated way.   Here’s an example:

     

    Q.      Mr. Jones, you have testified that my client went through a red light, not a green light, on the evening of September 28, is that correct?

    A.      Yes.

     

    Q.      You’re quite sure of that?

    A.      Absolutely.

     

    Q.      I’m handing you a copy of the police report which contains the officer’s interview of you on that evening.  Do you see on page two where you told the officer that you didn’t know whether the light was red or green because you were adjusting your radio at the time?

    A.      Hmmm.  I had forgotten about that.  Maybe I gave the wrong answer then because I was nervous.  But now I think that he went through a red light.

     

    Q.      Could it be that your testimony has changed because you now realize that if my client went through a green light, then you are responsible for his medical bills?

     

    These questions are most effective if the questioning attorney is polite and courteous, allowing the jury to draw the obvious conclusions.

  • When Can a Person Be Liable for Someone Else’s Negligence?

    A person injured due to another person’s negligence usually is able to obtain money damages from the negligent person, or that person’s insurance company. The law permits the injured person to recover money to pay for medical bills, lost wages, disability and other harms and losses.

    However, sometimes the courts will hold one person financially liable for another person’s negligence. To avoid a potentially devastating financial loss, it is important to understand the difference between an employee and an independent contractor. This difference can best be understood in the following two examples.

    Assume that John Smith owns and runs a paving company. Assume that Mary Brown hires John Smith to repair and repave her driveway. If John Smith’s paving truck strikes and injures a pedestrian during the project, Mary Brown cannot be sued by the injured person because John Smith was hired as an independent contractor.

    subpoena Now, compare the result that would obtain if John Smith was not a contractor, but was simply a friend of Mary Brown who was skilled at paving. If Mary Brown paid him $200 per day for his work, and purchased the concrete and other supplies, she would probably held liable for any injuries caused by Smith because he was now acting as her employee.

    Failure to observe the legal ramifications of hiring an employee can also expose the homeowner to liability for workers compensation damages if the employee is injured on the job. There may even be an obligation to withhold wages for payroll and income taxes.

  • What’s the Difference between Opening Statement and Final Argument?

    In every jury trial, the attorneys representing the parties in the lawsuit have a right to speak to the jury about the evidence in the case.   The Opening Statement is not called Opening Argument because the law forbids the attorneys from arguing about the evidence during the Opening. Instead, the attorneys for each side are supposed to describe the evidence that will be presented during the trial. Obviously, each attorney will want to list the evidence most favorable to his client’s case. However, an experienced trial attorney will also establish trust with the jury by mentioning some of the negative evidence that he knows will come out during the trial. In other words, a good Opening Statement highlights the most flattering facts for his client, but does not present the facts in such a distorted and lopsided way that the jury feels that it has been lied to after the trial is over.

    Final Argument takes place after all of the evidence is presented in the case. Here, the attorneys are allowed to make a full bore argument in favor of the client’s case. The attorney can not only highlight the evidence that she presented in trial, but can also call into question the reliability of the evidence introduced by the opposing side. But caution must be exercised in making arguments to a jury. Most jurors do not appreciate insulting remarks made about witnesses, even if they are true. For example, if one of the witnesses has lied during the trial, it’s probably not a good idea to flat out call him a liar. A better way to handle this would be for the attorney to say, “Mr. Jones’ testimony lacked believability and he was obviously not a credible witness.”

    An attorney should not read verbatim either his Opening Statement or Final Argument. Having a set of notes with bullet points is a way for attorneys to keep their presentation organized without boring the jury by reading from a script.   Most trials are interesting, and it is unfortunate that some boring attorneys tend to turn them into something quite dull.   This not only alienates the jury but also generally produces a disappointing verdict for the client.

  • What is the Hearsay Rule in Idaho?

    Fans of courtroom drama, on television or the silver screen, repeatedly hear trial lawyers posing objections to evidence based on the hearsay rule. The hearsay rule is at once simple and complicated.

    The rules of evidence are designed to admit reliable evidence into trial, and to exclude unreliable evidence. A hearsay statement is a written or verbal statement made outside of the courtroom. It is considered unreliable because it generally lacks two of the key components of in-court testimony:

    1. Testimony in court is made under oath, subject to the penalty of perjury for false answer.
    2. Testimony in court is subject to cross examination by the opposing attorney.

    Simple enough, right? Well, where it gets complicated is in the numerous exceptions to the hearsay rule. These exceptions permit the trial judge to admit out of court statements into evidence. Here are some examples:

    Dying Declaration: The law assumes that statements made by a person who knows she is dying are true, or at least believed to be true by that person.

    Excited Utterance: The law assumes that a person won’t lie if he doesn’t have the time to think of a lie. So, for example, if person sees a car strike a pedestrian, and yells, “the taxi hit that man,” the law assumes that person was not lying.

    Statements Made for the Purpose of Medical Diagnosis: The law assumes that people generally tell their doctors the truth because they want to be relieved of pain and illness.

    Family Records: The Idaho rule on this point allows the admissibility of the following: “Statements of fact concerning personal or family history contained in family Bibles, genealogies, charts, engravings on rings, inscriptions on family portraits, engravings on urns, crypts, or tombstones, or the like.” I’m not sure why this rule exists. Not everything written on tombstones is true.

    Statements in Ancient Documents. Idaho law allows the admission of statements in a document in existence thirty years or more. Here, the law assumes that a person won’t lie about something to obtain an advantage 30 years in the future.

    Records of Vital Statistics. This applies to “records or data compilations, in any form, of births, fetal deaths, deaths, or marriages, if the report thereof was made to a public office pursuant to requirements of law.” After all, who would ever lie on a birth certificate?

    Records of Documents Affecting an Interest in Property. Idaho allows the admissibility of a “record of a document purporting to establish or affect an interest in property, as proof of the content of the original recorded document and its execution and delivery by each person by whom it purports to have been executed, if the record is a record of a public office and an applicable statute authorizes the recording of documents of that kind in that office.” Here the law assumes that when a person pays money for real estate, and is given a deed for that property, then it can reliably be assumed that the person is the lawful owner of the property.

    Reputation as to Character. This rule applies to “reputation of a person’s character among the person’s associates or in the community.” What’s interesting about this rule is that a person will generally not be allowed to testify, “I think Jack is a thief” but will be allowed to testify that “everyone in town thinks Jack is a thief.” The law assumes there is safety in numbers.

    There are number of other exceptions to the hearsay rule, but here is one so broad you can drive a truck through it:

    “Other Exceptions. A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence.”

    So, now you know why the hearsay rule starts out simply but then gets very complex.

  • What is Negligence Per Se?

    When a person is injured or killed due to another party’s conduct, the attorney filing a lawsuit on behalf of the injured person must normally demonstrate that the defendant’s conduct was negligent.  Negligence means a departure from the standard of care normally required in a particular circumstance.  For example, if a person slips and falls in a department store, her attorney will have to prove that the store was negligent in the way it failed to properly clean up any spills that took place on the floor.  The mere occurrence of any injury does not automatically give a person the right to obtain money damages.

    An exception to this rule is the negligence per se doctrine.  In this scenario, the defendant in a lawsuit has violated a specific statute or ordinance designed to secure public safety.  As the Idaho Supreme Court stated in the case of O’Guin v. Bingham County:

    “[I]t is well established that statutes and administrative regulations may define the applicable standard of care owed, and that violations of such statutes and regulations may constitute negligenceper se.  A court may adopt as the standard of a reasonable man the requirements of a legislative enactment or an administrative regulation.”

    The O’Guin case involved two children who were killed at a county landfill when a pit wall collapsed, crushing them.  The Supreme Court ruled that the negligence per se doctrine would apply because Idaho statutes require that landfills be fenced off so as to prevent access when employees were not on duty.  The landfill was located not far from an elementary school, and the children walking home from school were able to access the unlocked landfill when no employee or supervisor was present.

  • What is Malingering?

    When an insurance claims adjuster accuses an injured person of malingering, she is suggesting that the person is fabricating or exaggerating his claim in order to obtain a larger monetary settlement or jury award.  The term is also sometimes used by physicians, psychiatrists and other health care professionals.

    The term is not confined to personal injury cases.  For example, sometimes soldiers are accused of malingering in order to avoid some of the more unpleasant aspects of military service.  During World War II, the British dropped pamphlets over Germany, advising soldiers how to feign injury in order to obtain military leave.  Even the Bible contains a malingering reference, as when David “feigned insanity and acted like a madman” to avoid the king’s wrath (1 Samuel 21:11-16).

    To the insurance adjuster, proof of malingering is the holy grail of claims fighting.  It is for this reason that insurance companies often hire private investigators to videotape claimants engaged in strenuous physical activity in order to prove malingering.  When this hard-nosed approach is played out in trial, though, it can frequently backfire on the insurance company and the insurance defense lawyer.  After all, it is one thing for an insurance company to have a legitimate disagreement about fine points of medical diagnoses; but it is something totally different to allege that someone is essentially engaged in fraud.

    If the jury believes that the injured person is unjustly being accused of feigning injury, the jurors will frequently award a large money judgment to the truly injured Plaintiff.  Jurors don’t like bullying and unjust character assassination.

  • Do You Really Need an Attorney to Settle a Personal Injury Case?

    You do not need an attorney to settle a small personal injury case. In fact, you might end up with a net smaller settlement after the attorney subtracts his or her fee in smaller cases.  This outcome would not be fair to you; therefore very small personal injury cases are avoided.

    Before you decide whether to hire an attorney, consider the following.

    In 2004, the Insurance Research Council, a research organization created and funded by the insurance industry, did a comprehensive study comparing the value of settlements people received for the same injury when they were represented by an attorney compared to when they did not have lawyers. The Insurance Research Council determined that people who were represented by an attorney received almost three and one-half times more, even after the attorney’s fees were paid.

    It was revealed that the 1995 training manual for the claim adjustors of one of the nation’s largest insurance companies stressed the importance of convincing claimants to represent themselves and not retain an attorney.

    Again, it is important to remember that the insurance company’s own research shows that people who have hired an attorney to represent them receive more money than those who do not have an attorney. Do you think the insurance adjuster will share this information with you?

  • What are non-economic damages?

    Economic damages are those that are capable of precise calculation, such as medical bills and lost wages.  Non-economic damages are those that are subjective and more difficult to calculate – primarily past and future pain and suffering.
  • What are the harms for which I can obtain money in a personal injury case?

    1. Past and future medical costs.
    2. Past and future loss of wages and loss of earning capacity.
    3. Past and future pain and suffering.

    Additionally, in cases involving extremely bad conduct by the negligent party, the jury may be allowed to also assess punitive damages against that defendant.

  • Can a person injured at work sue his or her employer?

    In most cases a person injured at work will only receiving workers compensation benefit, and therefore cannot also sue his employer for money damages.  However, if the worker is injured due to the negligence of a third party, he does have the right to sue. For example, assume that a driver of a UPS truck is injured when another vehicle crashes into his truck.  In such a scenario, the employee would be able to sue the negligent driver even though he is also receiving workers compensation benefits from UPS.
  • What is a statute of limitations?

    If you have been injured due to someone’s negligence, your right to money compensation will expires unless you file a lawsuit within a certain period of time.  In Idaho, this time period is generally two years.  However, in some instances, an administrative claim must be filed even earlier.  For example, administrative claims against local or state governments and entities must be filed within180 after the injury.

Government Liability

  • What is a Coup Contrecoup Brain Injury?

    Injuries to the brain can cause serious and permanent disability involving almost any part of the body.  In a coup contrecoup injury, the head is struck with such severity that the brain is damaged not only in the vicinity of the head trauma, but also on the opposite side of the brain.  For example, in a serious motor vehicle accident, the force striking the head may cause the brain to bounce in the opposite direction with sufficient velocity so as to damage both sides of the brain.  This can happen because the brain is the consistency of pudding, and can move within the skull.

    Several years ago a police department was represented in a lawsuit filed by a drunken patron arrested in a bar.  While resisting the police, he was forced to the ground and sustained a coup contrecoup injury to the brain, resulting in a permanent partial loss of vision and life long behavioral abnormality.  The jury did not reach the issue of damages because it found that the policeman was using reasonable force in subduing a large muscular man resisting arrest.

Injuries to Children

  • Are there special laws that apply to injuries sustained by children?

    Yes.  For example, the statute of limitations for injuries to children usually does not begin to run until the child turns 18.  For example, if an Idaho child is injured at age 15, the two year statute of limitations would not expire until the child turns 20.  However, in some circumstances, such as product liability cases, a shorter ‘statute of repose’ can preclude cases filed too many years after a childhood injury.