It is not uncommon for someone that is in an accident to have a pre-accident history of prior health problems.  Those problems can cover the full gamut of health problems, from cardiac issues, back or neck problems, vision problems, etc.  What happens if you had back problems or neck problems before your accident?  Can you still recover for neck and back problems that you feel after the accident?

     Pre-accident neck and back problems can fall into a number of different categories.  Some are the types of problems that you have, but you don’t know that you have.  In that category, many people have bulging or herniated discs and don’t realize it and don’t feel any symptoms from it.  Another type of pre-accident back problem is when you had pain that sent you to the doctor and you received treatment for it, including possibly surgery, but then you are pain or symptom free in the months or years leading up to your accident.  The third category is when you have a prior neck or back problem that continues to give you pain and discomfort right up to the day you get into your accident.  Are you allowed to recover in these situations?  If so, what?

     In Illinois, the fact that you had prior neck or back problems DOES NOT keep you from a recovery after a later accident.  If you have an “undisclosed” condition that did not give you any symptoms, or if your prior back symptoms had stopped before the accident, the fact that the current accident aggravated those conditions into current pain allows you to recover the full amount of your care and treatment for those conditions as if you had never had them before.  This is called an “aggravation” of a previous condition.  The at fault driver is as responsible for the whole amount of your damages as if they had caused all of your problems in the first place. 

     In law school, this topic is referred to as “the eggshell plaintiff.”  In a nutshell, the egg shell plaintiff theory is premised upon the common sense and logical fact that when the negligent driver hits you, that person takes you as you exist on that date.  There is no defense that because you are only egg shell thin in protection, that they are not responsible.  In other words, the defendant does not get to claim that if you were in better pre-accident health, that you would not have been injured in this particular accident.  The reason for that is clear.  Why should the defendant, the person that caused the accident, get any benefit so to speak from what your pre-accident health history is?  This is no different than if you were transporting priceless china in the trunk of your car when you get smashed from behind and it is all ruined.  The defendant owes the full amount of the value of that china and cannot claim that you should have only had  paper china in your car.  So, if the defendant aggravates a pre-existing, condition, they are on the hook!  For the WHOLE DAMAGES!!

     But, what happens if your back problems are nagging you right up to the point you get in the accident.  What happens then?  These types of cases are a little trickier to resolve.  The general rule of “aggravation” still applies, but you need to discern the difference in pain you are feeling after the accident compared to your pre-accident pain.  The defendant is responsible for that difference. 

     Whenever you have pre-existing health problems, particularly back and neck issues and get in an accident, these “aggravation” cases are compensable.  It does not mean that the insurance company for the at fault driver will just roll over and pay big bucks right away.  These types of cases are usually hard fought.   The defense will be aggressive, particularly if you have surgery after the accident.  The defense will often hire “expert” doctors to say that the accident did not cause anything other than a short term “exacerbation” of your prior condition and that your pre-accident back history was going to lead to surgery in any event.  In all the category of these cases, the defense will try and create the impression in the jury’s mind that all  of your accident complaints were things you had before or were destined to feel notwithstanding the accident.  Don’t despair.  You deserve a recovery.  This is when you need a real advocate on your side too!  This is NOT the time to hire the neighborhood lawyer that helped with your real-estate closing and your cousin’s divorce.  They may be very good at that, but go to a lawyer that ONLY handles injury cases for victims. 

     Remember, the insurance companies have vast amounts of money to hire good lawyers to fight you.  You need a fighter on your side too.  Good luck.

     After an accident, it is not unusual for the insurance company for the at fault driver to want to take a recorded statement from you.  Also, in uninsured motorist claims, your own insurance company will want to take a statement under oath from you.  And if you file a lawsuit, at some point, most likely, the lawyer for the “enemy” will want to take your deposition.  What is it?  What  do you need to know?  What should you wear?  Is the Judge there?  How long will it take?

     The most important thing to remember ANYTIME  the insurance company wants to take a statement, or the other lawyer wants to take your deposition, is that whatever you say is going to essentially “bind” you to that version of events for the rest of your case/claim.  In other words, the statement or deposition will lock in your testimony and you can  later say something different at your peril.

     The difference between a “statement” and a “deposition” is several.  A statement can be taken at anytime after an accident, but is usually done before a lawsuit is filed.  Once a lawsuit is filed, the other insurance company can only talk to you indirectly by having their lawyer call your lawyer, who in turns calls you.  So, in that case, the lawyer for the insurance company sends a notice to your lawyer indicating that they want to take your deposition on a certain date and location and time.  Your lawyer will tell you whether you need to appear on that date and should make arrangements with you to meet with you ahead of time to prepare you for the process.  If your lawyer does NOT make arrangements to prepare you for your deposition prior to allowing you to testify, in my opinion, you should really rethink who is representing you.  I don’t know any injury lawyer helping victims that is competent that doesn’t make sure that his/her client is thoroughly prepared to testify prior to attending the deposition.  But, what actually is a deposition and how does it work?

       A deposition is a formal legal proceeding where the insurance company’s lawyer, as well as the lawyers for anybody else that was sued in your case, will get to ask you questions that you will be answering under oath.  Your own lawyer will be there as well.  The Judge, in our practice, is rarely involved in a deposition.  There will be a court reporter present and the person or people you SUED have a right to be present as well.  It is a formal proceeding to the extent that you are put under oath.  It is informal to the extent that most depositions take place in lawyer’s conference rooms in a generally congenial environment.

     The word “deposition” comes from the form of the word “depose”, which essentially means to interrogate. In other words, the deposition is a form of “interrogation.”  The other lawyer will put questions to you that you are required to answer unless your lawyer tells you to not answer it.  Generally, the lawyer can only ask one question at a time, to which you respond.  The questions can come in any order, but the general categories that are usually covered are questions about your background, questions about the accident itself, questions about your injury and your recovery, questions about your time off work, and questions about the effect the injury has had on your life, activities, etc.  Again, the examiner can start anywhere and jump back and forth if they want.  Most younger lawyers start with background, then move to the accident, then to the injuries, etc.  Often times, more experienced lawyers may try to catch you off guard by starting the questioning with your injury, or how the accident happened.  This is why YOUR LAWYER needs to have prepared you ahead of time.   Also, since the court reporter is typing everything down, he/she can only listen to one person at a time.  So before you try to answer any question, let the examiner completely finish it before you start.  This will also give you a chance to reflect on the question and gives your lawyer time to object if need be.  Remember, this is NOT a conversation with the other lawyer!  It is an interrogation, albeit usually a polite one.

      The background questions in a typical injury claim are questions about who you are, where you live and work, your marital status, educational background, work experience, etc.  These are the EASY questions for you.  You know your own life experiences and it should be no problem to answer these types of questions.  The cardinal rule in our depositions, however, is to ONLY answer the question being asked.  If you can answer the question “yes” or “no”, in our experience that is often the best response UNLESS you need to explain something.  So for instance, if the lawyer asks where you live?  A truthful answer to that general question could be to just say “a house” or “an apartment” or whatever town you live in.  That is strictly limiting your answer to the question.  In reality, on background questions, the deposition will generally move a little quicker if on those types of questions, you give for instance your home address to that question. 

     The next type of questions you will get in our little hypothetical are questions about how the accident happened.  Here, you definitely want to make sure your answer is strictly limited to what the question was looking for.  In an auto accident type of case, you will get  many questions about relative speed of the vehicles, the distances between objects, the amount of time it took for things to occur.  These are EXTREMELY IMPORTANT questions about establishing who is at fault and is not the time for flippant responses.  This is probably the area in preparation that your lawyer did or will spend the most time so you have clear ideas in your head about how to testify to those facts.

     Questions about your injury and damages are usually pretty straightforward.  Sometimes it is hard to remember which doctor you saw on what specific day or what your exact complaints were on each of those days.  Generally, depositions are not memory tests about your medical care.  But you must be cautious of questions asking you in minute detail about each of your medical visits.  Defense lawyers often get you to commit to certain statements you think you may have made to your doctor but don’t appear in your medical records.  Later they will take the position that you may be lying or fabricating your injury complaints.  Again, your lawyer should have you prepared for this type of examination.  After all, your own lawyer has ALL of your medical records too and knows full well what the records say about each of your visits.  If your lawyer doesn’t cover this with you in your preparation, ask why not.  On the other hand, if your injury is catastrophic, such as paralysis or amputation, there isn’t usually too much confusion about what was happening at your doctor appointments.

     The last area of examination is generally about how your injuries have affected your life and your damages in terms of medical bills, lost wages, etc.  You may have to provide employer statements or tax returns to support your loss wage claim.   If you are married, the questions here may focus on how the injury has affected your marital life.  Is there a different division of responsibility around the house?  Are you sleeping in separate beds because of pain and discomfort?  Has there been a change in your sexual enjoyment with your partner because of pain?  That area of examination focuses on your loss of consortium.  Be candid.  During the damage portion of your testimony, this is  not the time to hold back.  Particularly in serious injury cases, don’t feel embarrassed to describe the devastating impact it has had on your home life.   On the other hand, if you strained your back and was all better in 6 weeks, it is hard to imagine a significant impact on your home life much beyond that time frame, so don’t try to “overplay” your cards.  We tell our clients to BE HONEST, OPEN and DON”T EXAGGERATE!!

     For some people, the most anxious part of the deposition is trying to figure out what to wear!  The answer is simple.  One of the most important parts of the deposition is for the insurance company’s lawyer to develop what sort of an impression you would make on a jury.  So, if you show up disheveled and unkempt, what impression do you think that makes?  On the other hand, if your job generally has you in blue jeans and a work shirt, you can certainly dress that way, but make sure your pants and shirt are clean.  If you work in that sort of a job, don’t try to create some other impression by wearing a suit and tie.  In other words, dress the way you want people to see you at your casual best.  Be neat.  This seems silly to talk about, but if you make a nice impression on  your own behalf, that is information that is relayed to the other insurance company!!  That is helpful to your case!

     You may also wonder why the judge isn’t present.  In our practice, judges rarely get involved in depositions because if any objections are made to the testimony, etc., the deposition continues on until it is finished and the lawyers raise any issues about the deposition or the testimony at a later time with the judge.  Lawyers are all “officers of the court” and as such are bound to follow ethical and procedural rules of conduct for depositions. 

     How should I act during the deposition?  This goes back to how you should dress.  We always tell our clients to BE POLITE!!  You do not gain anything in trying to make a good impression by getting angry with the other lawyer or arguing with the other lawyer.  Although there are always exceptions to these rules, generally this is the way to proceed.  Remember, if you explode in anger during the deposition, the insurance company lawyer will report that to his insurance client and they will factor your inability to control your emotion with how you will stand up to cross examination in front of the jury. If you lose control during the deposition, can they make you look out of control in front of the jury and hurt your case?? 

     In some types of cases, particularly cases involving severe injury to loved ones or death, the deposition of relatives, spouses, etc. can be very emotional.  Most defense lawyers are aware of how sensitive those situations can be and conduct themselves with a high degree of respect and sensitivity.  In those types of cases, don’t worry if you become emotional and perhaps cry or weep.  Grief can come back at almost anytime, particularly when you have to recount the experience that caused the loss or devastating injury. In those types of cases, no defense lawyer would think it “bad” if the widow cried describing how she found out her husband had been killed.  Or the mother sobbing trying to explain how she is trying to take care of her paralyzed little girl or boy.  Emotion from grief, loss, despair, longing, etc., displayed openly and honestly proves to the defense lawyer the devastating loss you and your family are feeling.  That information is relayed back to the insurance company as well. 

      In terms of how long a deposition can last, that varies depending where you live.  Most states have a time limit that can be about 3 hours to maybe 8 hours, but your lawyer will know how long it can last.  In our area, deposition in state court can’t last more than 3 hours absent some agreement or judicial intervention.  In most auto accidents, it doesn’t take a skilled examiner anywhere near the 3 hours to finish, but be prepared for that in any event.

     Remember, your deposition is a VERY IMPOTANT part of your case.  Be prepared for it, both intellectually with your lawyer, and personally in your own mind in what you know is going to happen, what to wear, how to act, etc. We often tell our clients that we do NOT win our cases in depositions, but we sure can damage our case if our client’s testimony is bad.  Consequently,  if you are anxious about it, make sure you tell your lawyer that and ask them to block out more time to get you ready.   If you are not comfortable the day of the deposition for some reason, make sure you tell you lawyer before you get there.   We communicate regularly with our clients in advance of their depositions and gauge from them their level of anxiousness and judge our preparation time accordingly.  Good luck!!

     It is always disturbing to an ethical lawyer to think that a client may be “faking” their pain complaints.  No lawyer worth their salt would take on or continue to represent a client that was “faking” their injuries.  Handling lawsuits can be expensive, and is certainly time consuming, and any competent injury lawyer would reject out of hand helping a client that is faking. 

     But what is equally disturbing is when a client gets injured in an accident, and the defense or the insurance company take the position that the injured person is “faking” all or some part of their injury, or is “malingering” (intentionally not getting better) or is motivated by a concept called “secondary gain” (continuing to be “hurt” because you have a lawsuit or claim pending, but will get “better” once it settles or concludes).   This type of tactic happens far more than the average person would imagine, and is quite disturbing to a client when they are told that is the position the defense is taking. 

     While it is certainly possible that some people fake pain complaints for whatever reason, let’s start with the basic premise that an ethical and competent injury lawyer has no time or motivation to help that sort of an individual.  That being the case, how does the defense lawyer or insurance company get away with doing that?  The simple answer is that if the defense cannot contest the fact that they are at fault, the only thing left for them to do is to contest the nature and extent of the injury.  And they do it through a variety of mechanisms including jaded arguments to the jury, reliance on paid experts to give that opinion, etc.   Defense lawyers routinely tell jurors that if the plaintiff was truly injured, that they would not miss doctor appointments, or wouldn’t have gone back to work, or resume other activities.  They also argue that real injured people go to medical doctors, not to a chiropractor or  any  type of faith based healer or alternative medicine.  I believe these are  cruel arguments  rooted in cynicism and malice.  Should an injured person be penalized because they waited two or three days before they went to the emergency room or doctor when all they were really hoping is that the pain would go away, and when it didn’t realized they should go see a doctor?  Should you be penalized because you went to work in pain so that you could earn the money to take care of your family?  Should an insurance company that fails to accept responsibility early on and begin advancing payments be allowed at a later date to argue that you should have stayed off work??  Isn’t it the height of audacity for a defense lawyer or insurance company to suggest or argue what type of medical care you should receive?  What business is it of theirs to interfere with your RIGHT to go to whatever health professional you trust and have faith in? 

     Defense lawyers also hire expert witnesses to review your medical records or to examine you, only to draw conclusions about your injury that are different from what your own doctor concludes.   The experts they hire to examine you often administer some type of “Fake Bad Scale” questions that supposedly BASED UPON YOUR ANSWERS ALONE, allow them to  conclude whether you are “faking” your injury or not. 

     Pain has many definitions, but in its most simple form is a sensation or feeling of distress or discomfort.  Pain is usually the result of some type of stimulation to a nerve ending.  Think of the pain you feel if you hit your finger with a hammer, or when the dentist “hits a nerve.”  That is pain from nerve stimulation.  But pain can also result from other things in the body as well.  Some pain is “musculo-skeletal pain.”  That pain comes from overuse or overexertion of certain muscles.  That can be pain that you feel the day after raking all the leaves, or lifting weights.  That can also be called delayed onset pain.  Similarly, if you twist too sharply, or overextend your legs or posture, you can “pull a muscle” which clearly causes pain. Pain can also originate from some type of brain activity that is sensing pain that lacks a corresponding “injury” so to speak.  That type of pain or discomfort is what accounts for claims of “phantom limb” pain some people feel after losing an arm or leg for example.  It is thought that the brain continuously remembers the trauma that caused the amputation and replays that pain memory over and over.  That is similar to what people believe is the source of discomfort for those with tinnitus or “ringing” in the ear, which is really the brain sensing sound where there is none.  Another type of “pain” is the loss we feel when a loved one is killed or passes away.  That type of pain is emotionally based in grief and feelings of loss and despair.

     The point about “pain” is that it cannot actually be seen, only felt or experienced.  Pain is also unique to the person that suffers from it.  In other words, a “pain” that may not bother one person can be a source of immeasurable discomfort to someone else who has  a different pain tolerance. 

     The purpose of this discussion is to reassure those that are experiencing “pain” that it is real even though it can’t be seen on an x-ray.  The fact is that the human body has nerves all over the place.  Thus, an injury to a certain part of the body, such as your back, can certainly stimulate nerves in that area causing pain.  If you are experiencing pain, seek out competent medical help if you feel it is necessary.  If you can tolerate the pain, that is a different thing.

     In lawsuits and claims, pain is a hotly debated topic.  Your injury lawyer uses every imaginable method to prove to the jury the pain  you are feeling is real, it is there.  On the other hand, the defense lawyer argues that if you had pain in the accident, it should be gone by now, etc.  So, if you do get in an accident, the way you talk about your pain becomes very important.  From the first moment you go to the emergency room, they are writing down what is bothering you.  If you only complain of neck pain in the E.R., and then two weeks later when you see your doctor you tell him your lower back hurts, but your neck is fine, that will be fertile ground for the defense lawyer to attack your claim.  So, be consistent about what pain you are feeling.  In other words, if you felt neck pain the first day, and that is what is bothering you at your second doctors visit, make sure you call it neck pain again.  If you later develop lower back complaints, remember to tell your doctor that although your neck  was what you were most concerned about earlier, now your back is bothering you too.  If you are being treated by a caring medical provider, and a lawyer that has the tools to show the jury your pain, you are in good hands.  If during your case your lawyer tells you that the defense has hired an “expert”, don’t fret.  Be honest and trust your lawyer to do the job he or she was hired to do. Remeber, if the defense is challenging your pain complaint, it is only because if they don’t, the jury is only left with what your lawyer tells them about your pain in addition to your own testimony of how you felt or feel.   If your lawyer can’t do the job you hired them to do, fire them and hire one that will.  A good injury lawyer knows his client is in pain and has the arguments and skills to get that point across to the jury. 

     Remember, pain is real.  Just ask someone with a headache!  Good luck!

     Some people love to talk about all the frivolous lawsuits that are out there.  You hear it drool out of the mouths of certain politicians, you see websites devoted to supposedly exposing the frivolous claims and you can hear a congo line of stiff lipped commentators and talking heads on tv and radio shows blaming frivolous lawsuits as the reason for the lawsuit “crisis” in this country.  Are there truly frivolous lawsuits?  Do we really have a lawsuit “crisis” in this country?  Are there really lawyers out there with so much time on their hands or so little coin in their pocket that they are filing ridiculous claims in the hope of a large recovery?  And what about that woman that got burned by the McDonald’s coffee and won millions?!

     When people mention “frivolous” claims, I guess we can only conclude that what they mean is that the case lacks any true legal basis for being brought.  I presume that frivolous claims can also include those cases that just sound silly to us, although we don’t really know as “lay people” whether those types of cases have legal merit or not;  rather, they just sound silly.  As a lawyer trying cases, my take on a frivolous case would be one that so lacks legal support that the act of filing it is frivolity at best.  The other type of frivolous cases, the ones that just sound “silly” or “dumb” or what have you, I think everyone should realize may in fact have sound legal footing.  But, let’s not split hairs here.  The media uses the term “frivolous” lawsuits without any regard to specifics, so let’s look at some of the “frivolous” cases.  And in terms of notoriety, let’s start with the McDonald’s coffee case.

     Before I write down one hard fact about the McDonald’s case, I want you to reflect on all the things you have heard about the case itself, how much was awarded, etc.  Do you remember all the negative comments about the woman that filed the suit?  Do you remember all the comments about who would sue over hot coffee?  and then the follow up “logical” responses about isn’t coffee supposed to be hot?  What kind of a crack pot would spill  hot coffee on himself and then think it was McDonald’s fault!!  Do you have it all in your mind about how crazy that case was??  The following are the REAL facts about that case.  There are many places you can go to VERIFY these facts.  You should start at the American Association of Justice website (www.atla.org/pressroom), but you don’t have to end there.  Many people have written on this topic, so don’t just take my blogging for it if you don’t want to.

     The woman that got burned in February 1992 was the 79 year young Stella Liebeck from New Mexico.  She was NOT the driver of the car she was in; rather she was a passenger and the car was being driven by her grandson.  Secondly, the car was NOT moving when the accident happened.  After they bought the coffee, the grandson pulled forward and came to a complete stop so his grandmother could add cream and sugar to her coffee.  The coffee was in a Styrofoam cup.  As Ms. Liebeck placed the cup between her knees, and removed the cap, the coffee spilled towards her and spilled into her lap area.

     Ms. Liebeck was hospitalized for 8 days.  During that time, she underwent the surgical removal of skin tissue and had skin grafts over the burned areas.  Ms. Liebeck’s doctor said that she had full thickness (3d Degree burns) over her inner thighs, perineum, buttocks and genital and groin areas.  The 3d degree burns covered over 6% of her body.

     After “recovering” from her injuries, leaving aside scarring, etc., Ms. Liebeck tried to settle her case with McDonald’s for $20,000, and it refused.  When you hear the $20,000 figure, how much do you think her hospital and doctor bills were?  In any event, McDonald’s said NO!  So a lawsuit was filed against it.  Now, if the case lacked any true legal merit, the court would have thrown the case out.  It did not and it proceeded to trial with jurors from the community.

     What was the evidence the jury heard???  Well, to start, the jury heard that from 1982 to 1992, McDonald’s had documents showing that more than 700 people had complained of burns from its coffee, some of which included 3d degree burns like Ms. Liebeck.  So, McDonald’s knew that its coffee could cause 3d burns in people.  Well, so what!  Isn’t coffee supposed to be hot??  Well, the jury also heard that McDonald’s, based upon a consultant’s advice, kept its coffee between 180-190 degrees fahrenheit to keep its best flavor.  The jury also heard that other establishments that sell coffee keep it at substantially lower temperatures.  The jury also  heard that the coffee in home coffee pots is about 135-140 degrees fahrenheit.   So, McDonald’s kept its coffee 40-55 degrees hotter than what is in your home.  Well, the consultant said it was ok!  That was how to keep the coffee tasting good.   Unfortunately, McDonald’s own quality assurance manager testified that a burn hazard exists for any food product served at or above 140 degrees and that McDonald’s coffee, as hot as it was, was NOT FIT FOR CONSUMPTION because it would burn the mouth and throat.  So, although McDonald’s own executive said the coffee was so hot it was unfit, he also told the jury that his company actively ENFORCED the hot temperature and that even though burns would occur, McDonald’s had NO intention of reducing the temperature.    Hmmmmm……

      Well, what else did the jury hear?  Ms. Liebeck’s expert witness in “thermodynamics” testified that liquids at 180 degrees will cause 3d degree skin burns in 2-7 SECONDS!  The jury also heard McDonald’s say that its customer bought the coffee on their way to work or home, supposedly waiting to drink it there.  Unfortunately, McDonald’s own research studies showed  that customers like to drink the coffee right away while they are driving.  Go figure.  Well, what was some of McDonald’s defense??  Well they had an “expert witness” that it paid over $15,000 in the case to testify that coffee burns that McDonald’s knew about, including apparently Ms. Liebeck were “statistically insignificant” if you compared the number of complaints to the billion cups of coffee McDonald’s sold.  So, even though there was a live, and BURNED person, some horrifically like Ms.Liebeck behind everyone of those complaints, the jurors concluded that as a company, McDonald’s didn’t attach any importance to those complaints.  So, as the Wall Street Journal reported, jurors heard enough evidence to conclude that McDonald’s had a callous disregard for their coffee drinking customer’s safety.  As the McDonald executive testified, even though they knew about the  bad burns, there are apparently more serious dangers in restaurants.

     So, what did the jury award?  The jury awarded $200,000 in COMPENSATORY  damages, reduced to $160,000 because the jury concluded that Ms. Lieback was 20% at fault too.  The jury also awarded $2.7 million in PUNITIVE damages to punish McDonald’s.  The trial judge later REDUCED the punitive damages to $480,000, even though the trial JUDGE called McDonald’s conduct reckless, callous and willful.  So, Ms. Liebeck’s net award was $640,000, but there was a settlement reached after the trial. 

      After hearing all that, was Ms. Liebeck’s claim “frivolous?”   Could she have possibly known that the coffee in her cup was about 40 degrees hotter than what she makes at home??  How about McDonald’s corporate attitude?   As a side note, after the trial, an investigation revealed that the coffee temperature at the local Albuquerque McDonald’s was dropped to 158 degrees fahrenheit.  No word yet whether any complaints about the flavor of the coffee changing because of that.

      Moving forward, whenever you hear someone comment about a frivolous lawsuit, challenge them for the specifics.  What was the actual name of the person that filed the suit?  In what county and in what state was it filed?  Many crazy urban legends of phony claims circulate over the internet, all lacking the hallmark indicia of truthfulness:  factual citations that can be checked and verified.   Think about it for a minute.  If it was a frivolous case, it had to have been filed at the clerk’s office in some courthouse in some county in some state.  How come that information never seems to surface.  Simple, because the urban legends are baloney.  And if they weren’t, then what are the court numbers of those cases and let’s all go look together to get the REAL facts, not myth. 

     While it is easy to not take some of this too seriously, should we?  Do those that circulate phony urban legend tales of frivolous claims have some other agenda??  Do you think all of that “DISINFORMATION”  is affecting the way people think about people that file lawsuits???  I think that is exactly what the myth mongers want to do.  The people that will really hurt are the ones that need jurors to know the TRUTH about the MYTHS so jurors are NOT predisposed to thinking that all lawsuits are baseless. 

     Our civil jury system to resolve disputes is a VALUABLE right!!  Everyone should do their job to preserve a system and its integrity that they may need one day themselves.  Don’t spread the MYTH.  Seek the truth, and spread that fact.   There are many other MYTHS being spread about  medical malpractice, insurance premiums for doctors, runaway juries, excessive attorney fees, etc.  When you hear these stories, listen carefully.  The devil is in the details, and details are what those stories usually lack.

Good luck!

     You’ve been in an accident and now you are trying to decide whether to file a lawsuit or not.  There is a part of you that says you want to hold the other person responsible for what happened, but there is another part of you that thinks people will think less of you if you do pursue the case, or maybe you feel there are too many lawsuits, or that it is not going to be worth your time to do it.  There may be a number of other reasons you may be thinking of as to why you don’t want to file a suit.  Those reasons can be politically based, religiously based, or based upon a belief that only money “grubbers” or ‘greedy” people file lawsuits.  What should you do? 

     Like many people, you probably talk about what to do with your spouse, friends, other family members or even co-workers.  What you are left with after those discussions is a  number of people telling to get a lawyer, and some others telling you some story about why you shouldn’t.  Some may say that we have a lawsuit “crisis” in this country, or that you shouldn’t contribute to the “runaway” jury awards that the media seems to talk about.  You are left feeling, possibly, no closer to an answer to your personal question than when you first started asking around about what other people think. 

     Whether you should or should not pursue a claim ultimately is an individual decision you will have to make.  Of course, the opinions of spouses and trusted family and friends may bear on that decision, but at the end of the day, it is truly your decision and your’s alone to make.  You think you  may want to do it, but are concerned about the perceptions of others that you may be greedy, or are contributing to the so called lawsuit “crisis” in this county.  Maybe some cold hard facts can help you decide.  These are facts that you can research on your own if you desire.  These are facts that UNDERMINE the statements of some about lawsuit “crisis”, “runaway juries,”, etc. 

     Let me be clear from the outset about one fact.  We DO NOT condone frivolous or nonsense lawsuits.  If I have a potential client that does not have a case, we tell them that and send them on their way.  In fact, I don’t know any lawyer representing victims of other peoples’ negligence that file frivolous lawsuits.  I would add that I would encourage anyone that hears someone talking about “frivolous” lawsuits to challenge that person to describe one single baseless lawsuit.  I wil admit that there are some crazy cases out there, but  many of those are brought by individuals representing themselves, not by lawyers.  But let me be a little more specific.  You often hear about the ‘medical malpractice crisis” in Illinois and other states.  Supposedly doctors are fleeing the state, etc.  Challenge the person making that statement to identify ONE doctor that left the state because of malpractice claims.  The other little known fact is that a  medical malpractice claim cannot be filed in Illinois UNLESS  a medical doctor, licensed to practice medicine in all its branches, has CERTIFIED UNDER OATH that the malpractice claiim has merit.  In other words, a lawyer cannot just run to the courthouse and file a medical malpractice claim.  The lawyer has to get all the persons medical records and have those records reviewed by a licensed doctor to determine whether there was malpractice or not.  The task of getting the records and getting them reviewed by a doctor will cost the lawyer anywhere from about $1,000 to often times easily over $5,000.  With that much money going out the door just to see if there is a case, how many people think lawyers are taking frivolous malpractice claims if it costs that much just to find out whether there is malpractice or not??  All lawyers that I know do a very effective job of screening out the potential malpractice claims that do not have merit.  Medical malpractice claims are very expensive to pursue, and no lawyer is just throwing money away on something that has no  chance of recovery.

     Let’s talk about another hot button topic of certain politicians–the lawsuit “crisis” in this country.  Did you ever notice that when politicians talk about lawsuit crisis, they always seem to men tion people suing for personal injuries as the reason for the crisis.  Did you ever find it ironic that the people talking about the crisis are not the ones in the trenches on a  daily basis handling cases and actually seeing what is going on?  Did you ever notice that the shrill scream of CRISIS  seemingly is always coming from politicians running for office?  Have you ever heard of a group of federal or state judges, the same judges supposedly in the very middle of the crisis, talking about a crisis?  Isn’t it funny that the people actually working in the legal system don’t seem to be talking about any crisis?  Yet, every election year, certain politicians scream about the “crisis” with runaway jury verdicts for supposedly non-deserving injured people and their families.  You hear about the need for CAPS on damages, designed solely to punish the injured person or their family from recovering fair compensation, yet protecting the at fault person or company from paying what’s fair.  What is fair about that?  In any event, would you find it interesting to know that over about 80 % of all civil lawsuits filed are one company suing some other company for some reason?  If the bulk of ALL civil lawsuits filed are one company suing some other company for whatever reason, like breach of contract, trademark infringement, or whatever, than if there is a crisis, who caused it?  Was the “explosion” of lawsuits because of injured people suing for those injuries, or was the “explosion” caused by corporations suing corporations??  So the next time you hear about a lawsuit crisis from someone, ask them about these facts.  Also, the next time you hear some politician crying about all the lawsuits, ask them who is filing them.  All of the above facts are documented from the American Association of Justice as well as statistics pulled from the courthouses.  Theese are not just some facts I made up.   Do your research.

     Other reasons you may hear about why you sh ouldn’t file a lawsuit are just utterly frivolous under biopsy.  Is it only ‘greedy’ people that file claims?  Does a young woman whose husband was killed when a truck crossed the certerline, leaving her to take care of herself and their kids fit the profile of a “greedy” person?  Do you think for a minute that if the truck company was at fault, that they would immediately call the grieving widow, and offer to pay funeral and burial costs, as well as provide a stream of income to replace what was lost?  People hurt in accidents seeking fair compensation are NOT GREEDY!  How does the person or company that was at fault, and caused the accident, escape namecalling, yet you, the injured person, going to the doctor, having surgery, going to physical therapy, can’t spend quality time with your spouse or kids, how is that you are greedy by seeking fair compensation for what happened?  Why are you called names if you file a claim, yet the person or company that caused the accident escapes without  being held responsible, yet alone called bad names?  It is no more “greedy” to seek fair compensation for your injuries, then it is “greedy” to expect to be paid a fair wage for whatever work you do.  What we have see over the years is that people that talk about “greedy” claimants are usually those that either had their own claim, or someone close to them that didn’t get any money, and they are still  mad about it.

     Let’s fiinish by talking about “runaway” jurv verdicts.  You see this in the paper with some regularity and constantly hear certain politicians talking aobut it.  Juries are supposedly out of control and blindly awarding millions of dollars for small injuries.   There are supposedly judicial “hell-holes” where if a company gets sued in a certain locale, that the juries are just out of control awarding money against them.   The cases where lots of money is awarded often make headlines, without question.  But what is  really at work when the newspaper or politician tries to take a single jury verdict and use it as some part of their personal agenda to get elected or whatever.  Let’s talk about the civl jury for a minute

     The United States is the ONLY country that truly alows jury trials in civil cases.  A civil case is one that is not criminal–no body is going to jail.  Civil trial are about personal injury, breach of contract, etc.  The only thing at stake in civil trials is usually money or enforce certain types of contracts, or to bar a company from infringing on some other company’s rights, etc.  Who sits on these civil juries?  Is it some supposed “lunatics” of society?   No, it is people like me and you.  Civil juries are people from the community.  They are your neighbors, your co-workers.  The are the people you see in your church, at your schools.  They are your kids teachers, your carpenter, the plumber, the doctor that lives down the street.  They work at the post office, in office buildings, they drive delivery trucks and fix your car when it’s broken.   The cook fantastic food in restaurants and deliver it to your table.  Jurors are as diverse and as varied as the community in which you live.    Very few people can escape from jury duty, and if you are called, you should not try and avoid it either.  Why?  Because serving on a jury is a FANTASTIC experience.  Yes, it may pull you from your job, or interrupt your schedule for awhile, and you may hate having to drive “down-town” to get to the courthouse.  But, almost universally,  people interviewed after jury duty say that it was a great experience, that they enjoyed learing about a process foreign to them, etc.  I have digressed here a little to remind us of our civic duty to serve when called.  But it makes a point.  The reality is that all those runaway juries out there were citizens of the community, called by the clerks office to try and serve.  They were interviewd by the Judge and the lawyers before they were chosen.  They sat through the whole trial.  They heard the evidence.  They saw the witnesses and were able to observe their demeanor.  They heard the arguments of both lawyers, they heard the law from the judge, and they swore to follow the law that the judge gave them.  Do they sound like a group that woudl just “runaway” with the process and award obscene sums?

     In other words, the newsbites and snippets from politicians about certain jury awards don’t even scratch the surface of what went on in the trial.  The pundit uses the result of the trial as supposed evidence of a broken system.  Yet, who can second guess the actions of a group of citizens, that had to reach a unanimous result?  Can we really believe the 2 minutes sound bite?   In a trial that may have lasted days, weeks or months, do we really think the jury at the end just threw up their hands and gave away the bank?   In other words, do you ever hear about when the injured person loses???   Recall the stunning first verdict in Texas against Merck for the problems with Vioxx??  It was all over the TV news and newspapers.  Now, how many have head about all the cases that Merck has won?  Would it shock you to know that Merck, before the recent settlement, won far more Vioxx cases then it lost?  In other words, the lawyers trying the cases, both for the injured person and for the person or company sued, have FAITH in the jury trial system.  Every defense lawyer worth their salt will tell you that cases are won or lost, based upon the facts, not runaway juries. 

     I’m sure if you read this far, you are probably thinking about the McDonald’s hot coffee verdict as a classic example of a runaway verdict and that your friends will think of you in that way if you file a lawsuit.  I will  discuss the infamous McDonald’s case in a later post.   You will probably be surprised by what you will hear.  But, to the point, SHOULD YOU FILE A LAWSUIT?   Would you have any  hesitation to talk to a lawyer if you thought your  neighbor damaged your property, if you were fired from your job unfairly or because of your gender, age, race or creed? If the company working on your neighbors property damaged yours in the process, would you have any hesitation holding them responsible?   Is it any different to hold responsible the person or company that killed your spouse, child, or put you in the hospital?   Be fair to yourself.   Good luck.