Guest Post by John M. O’Brien, Personal Injury Lawyer in California
Representing clients who have been injured in catastrophic accidents can be challenging and complex. There are a number of issues that must be considered and practical problems that need to be overcome throughout the whole process. This article highlights some of the issues and considerations that will be faced when you attempt to find a top personal injury lawyer.
One of the first decisions that needs to be made when you handle a personal injury claim is which jurisdiction will the claim be heard in.
Personal injury cases are typically heard in state courts. However, some cases can be tried in a federal court. But just because a case can be filed in federal court, doesn’t mean it should be. In the 20+ years I have been practising as a personal injury lawyer, I have found out that the rules and limitations in Federal Court can be unfriendly for injured Plaintiffs.
For a personal injury victim in California, the injury claim is filed typically in a state court of general jurisdiction. Let’s say s say ; then the lawsuit will be filed at the Superior Court of California for the County of Sacramento, court of general jurisdiction. Likewise if you were injured by a slip and fall in Columbia, then the lawsuit will be filed in the state of South Carolina.
Federal courts have limited jurisdiction, usually hearing personal injury cases where there is something called diversity jurisdiction. Diversity jurisdiction exists when the plaintiff and the defendant are from different states or have different nationalities, and the amount in controversy is in excess of $75K. For example, if a victim is suing a driver from another state for causing an auto accident or is suing a foreign company for a defective product, because of diversity jurisdiction the case could potentially be tried in federal court.
When a statute of limitations deadline is looming in the near future, it is essential to sue every potential defendant to maximize the chances of recovery. In fact, if attorneys do not sue every potential defendant, they could be subject to legal malpractice.
When an accident occurs in a public place or involves a government vehicle, it often means that a governmental entity or agency must be named as a defendant in any lawsuit that is filed. A public agency’s culpability in a personal injury case usually depends upon the level of control it had over the vehicle involved in the accident or the public area where the accident occurred.
In cases where a public agency is involved, an additional “statute of limitations” period is imposed. The purpose of this period is to alert the agency to the facts and circumstances surrounding the accident and to let it know that if a resolution is not reached, the injured person plans to take action in the near future. The public agency must formally deny the claim for the injured person to file a lawsuit with the court.
Admitting police reports into evidence in personal injury case being litigated is not as clear-cut as you would expect. Police reports, by definition, constitute hearsay evidence. For that reason, to attempt to admit the police report or parts of it you may have to contend with California’s many hearsay exceptions. Alternatively, to otherwise try to get the information contained in the police report into evidence, it may be wise to subpoena the investigating police officers to testify about their investigation.
The police report has a good deal of information that you may not otherwise discover. For example, the investigating officer may have located witnesses to the accident and identified these people in the report. Or, the police officer may have obtained insurance information and written it into the accident report. There are many different reasons why the police report is such a valuable tool. For these reasons, if a police report was drafted, you need to get a copy and review the contents of the report.
Going into a trial in conservative counties, any hint of untruthfulness, exaggeration, or laziness can result in a defense verdict or very low general damages.
In one of our difficult cases, the neurosurgeon hired by the defense testified in the deposition that our client’s obesity was the cause of his back pain and if he just lost some weight, his back problems would go away. At the time of the accident, the client weighed close to 400 pounds, was unemployed and lived with his parents.
However, we managed to turn these “negatives” into positives. We embraced the obesity issue. My client had been heavy his whole life. We developed his story through his friends and family, all regular sized, that the client ate what everyone else did, was active, but he was just one of those unlucky few genetically predisposed to obesity. We then established that despite his obesity he lived his life like anyone else before the collision and was perfectly happy and that significant rapid and weight loss was only necessary because of his back injury.
On cross-examination, the defense neurosurgeon admitted that bariatric surgery was probably the only way the client would experience relief from his back pain and that there was no evidence that the client had suffered any back pain before the crash. By addressing his weight issue this way, we turned it into an element of damages.
Also problematic was the fact that the client had no significant work history before the collision and was unemployed when it happened. Through his testimony, we established that since the accident he had matured, and all he wanted was to be productive and to support himself. But when he tried getting work at several locations, he was always turned down when they found out he had a back injury and was taking daily narcotic pain medication.
We called an economist to talk about how earninogs grow dramatically between one’s 20’s and 30’s, borne out by several economic forecasting models and studies. In closing, I argued that the defendant harmed the client’s ability to grow and develop as a young man, exactly when he would have done so had he not been injured. The conclusion to the story is that the jury returned a six-figure verdict for the client, including the future cost of bariatric surgery and damages for lost earning capacity.
Embracing the negative parts of a case and owning them during litigation and trial can be instrumental in the client’s victory.