General Damages in Washington include disability, loss of enjoyment of life, pain and suffering, and disfigurement. In this post we discuss suffering. Suffering is often lost when general damages are discussed at trial. One reason is it is lumped together with pain as in pain and suffering. The tendency is to then ignore suffering. This is unfortunate and a mistake as suffering is separate from pain.

To understand suffering let us juxtapose it to pain. In a significant personal injury case, and any personal injury case that presents with permanent personal injuries is a significant personal injury case, we readily have an understanding of pain. Pain is learned as a baby, and instilled into our minds by the time we graduate from toddler-hood. This is because to understand pain we must experience pain. The same is true for suffering. Suffering is generally not understood until a more advanced age because it is more complex then pain. Suffering has a major psychological component that requires a mature outlook to comprehend.

Suffering is emotional. Suffering is dealing with loss. It becomes easier to understand suffering when we imagine or remember our feeling when we have lost a loved one or a pet. When this type of tragedy happens we do not have physical body pain as in a burn. The emotion of suffering is deeper. It is felt in the psyche. It is the feeling that comes from emotional loss. Suffering presents when we no longer have the emotional support of our loved one or pet. This distinction allows us to understand suffering in the context of  it occurring after the loss of a loved one or a pet.

But what about suffering in the context of the injured person. This is more complex. Here we need to recognize we all see ourselves in certain ways. The unique talents we possess are often based on a combination of genetic luck and hard work. For example the ability to do something athletic such as play golf or tennis at a decent level, bicycle or run, play baseball, basketball, soccer or another team sport. When we have such an ability we see ourselves as an athletic. When we have intellectual talent such as in the ability to solve technological problems, or practice in a high level profession, we identify with yourself as a person who possesses a unique physical skill or an ability that contributes to society.

When we lose this physical or intellectual talent we no longer see ourselves in the same way. We have to accept our new identity- the person that exists without the level of ability we had before injury. This does not physically hurt but the change in how we see our diminished self is an identity loss that is every bit as great or greater then physical pain. This is suffering.

Post Footer automatically generated by Add Post Footer Plugin for wordpress.

A personal injury lawyer is often called upon to arbitrate his client’s case. This post written while I prepare for an arbitration discusses personal injury arbitration.

Why Arbitrate. Generally personal injury arbitration is done because a contract between the parties requires arbitration of disputes arising under the contract. In a personal injury case the contract is an insurance contract. In an automobile injury case the insurance contract is the automobile insurance policy. Often the policy comes into play when the insured party brings a claim under his uninsured/under-insured motorist coverage. At times both sides may agree to arbitrate rather then go the jury trial route. Arbitration has the advantage of  being faster, the parties pick the arbitrator, the arbitrator will be knowledgeable about personal injury cases, and the arbitrator will usually award an amount somewhere between a great result and a bad result. This gives the parties predictability that neither will get killed.

Arbitration Rules. If the contract is silent on rules, prior to arbitration agree on the rules. In Washington where we have mandatory superior court arbitration on damage cases valued at $50,000 or less we have Mandatory Arbitration Rules. Typically Washington lawyers agree to follow these rules in a private arbitration case.

Submissions. Our submissions which include our arbitration brief are submitted fourteen days before the arbitration. The arbitration brief is similar to a trial brief. Background on client. Facts causing injury. Injuries sustained. Impact to client. Past medical bills summarized. Future medical costs. Lost wages. Future economic loss. Relevant Washington law. For exhibits we submit damage photos, repair estimates, significant medical records organized by provider, and jury instructions on damages and life expectancy. (When medical records are voluminous we will include a medical record chronology summarizing the records from date of injury to last record).

Preparation. Prior to the arbitration we review all the exhibits. We highlight and mark the exhibits we will refer to in the arbitration. We read all the depositions. This allows for the internalization of the facts. The opening statement is outlined. It will be without notes but an initial outline allows for internalization. Cross examination of experts is written in chapters or subjects that will be covered. This means the expert is wired. Stated another way we will testify for the expert knowing what he will say based on his deposition or report. If he does not fall into place the wire is pulled and he is impeached with his prior statement. Closing is outlined by writing in the damage amounts on the damage jury instruction. This will be used to get to the amount of the request for damages at closing.

Arbitration Hearing. We arbitrate the case in a similar way to a jury trial. We never waive opening statement. Direct examination is like a conversation with the witness without notes. We sit between our witness and the arbitrator so the witness looks at the arbitrator during her testimony. On cross examination we use the prepared chapters but go beyond. This means we take from the direct to add to our prepared cross so we have spontaneity with the ability to incorporate blind cross examination. Closing argument recognizes we have a sophisticated audience so we keep it short.The theme is repeated like a classical symphony. The damage request draws from the jury instruction.

Post Footer automatically generated by Add Post Footer Plugin for wordpress.

Today’s legal climate is largely the result of a concerted tort reform propaganda campaign. A lawyer  representing injured people must recognize how a personal injury case is likely to be defended to create jury skepticism. Insurance defense lawyers will launch innuendo to appeal to prejudices resulting from tort reform propaganda.

The Trial Lawyer. Sadly lawyers who represent the little people of society against insurance companies on a contingent fee basis have been demonized by tort reform campaigns. Now that this has been done, the first defense step is the introduction the Greedy Trial Lawyer myth. This tactic attempts to get jurors to focus on the plaintiff lawyer rather then the injured person as in the lawyer is bringing this case to make money. Always remember the case is about an injured person not the person representing the injured person.

The Impact. The second step is to down play or ignore the injury mechanism. For example it has been known for years the occupant of the rear ended car may have injuries despite the car not  being significantly damaged. This is because modern car bumpers are built to withstand rear end collisions of over 5 MPH without noticeable damage. Insurance companies know low impact crashes can and do cause injuries but they know in trial what matters is the perception of the event causing the injury.

The Injury. The third step is to attack the injury. Whenever possible this begins with the first medical record following the injury event. Often this is a cursory ER record with not much detail. Another favorite attack on the injury is “the preexisting condition argument.”  In reality a rear end collision whiplash predisposes a younger injured plaintiff to future neck conditions including surgery. Thus the younger plaintiff is left with a more significant preexisting condition when he is hit again later. More significant an older person who has advanced neck and back degeneration is more likely to sustain neck and back injuries from trauma. Insurance companies know this but this does not stop them from arguing the condition itself (not the trauma visited to the collision) is the cause of plaintiff’s problems. Honest doctors know the more advanced the spine degeneration the more likely there will be injury from trauma.

Treatment for Injury. The fourth step is to argue there is something wrong with the treatment. These arguments include lack of treatment, over treatment, diagnostic treatment, treatment noncompliance and gap[s] in treatment. Any argument to call into question the treatment or lack there of will do.

Damage Request. The final toy in the tort reform nursery is the “now you know why we are here” statement in response to plaintiff’s damage request. This is a disguised frivolous lawsuit statement made to prejudice against the McDonalds case. Here it is important to stay grounded on the injuries in our case and how these injuries impact our plaintiff. Even with the tort reform propaganda arguments of the defense, when we stay with the truth and reality of our legitimately injured plaintiff the jury will likely respond with fair compensation.

Post Footer automatically generated by Add Post Footer Plugin for wordpress.

A quality lawyer is a balanced lawyer. Balance means balance in our life in the law and in our life outside the law.

In the Law. The balanced lawyer  practices time management. He arrives to work in a timely way on a regular basis. The balanced lawyer is well rested and ready to go for the day. The balanced lawyer has a solid relationship with his staff, and with other lawyers in the firm/ office. The balanced lawyer is organized and thorough. The balanced lawyer returns phone calls on a timely basis and meets deadlines. The balanced lawyer is prepared for the task at hand and completes the project in a timely way.

Social. The balanced lawyer has a social life outside the office. This may be a family and/or non family intimate relationships. This may be friends. Either way or both the balanced lawyer has meaningful relationships outside the office.

Intellectual. The balanced lawyer thinks in the law and outside the law. This means the balanced lawyer has an intellectual life outside the office. This may mean taking classes, reading, writing or discourse. The key is he is pushing his mind to continue to grow intellectually which keeps the mind sharp.

Physical. The balanced lawyer has a physical life. This usually means working out on a frequent basis or regular physical activity.  Running, walking, yoga, hiking, climbing, tennis, golf (w/o cart), basketball, squash, hiking, martial arts, regular exercise they all work. The key is physical activity that keeps the balanced lawyer in decent physical condition.

Spiritual. The balanced lawyer has a spiritual life. This may or may not mean a religious life. This does mean being mentally a tuned to something beyond what we cannot see. This may mean being a tuned to the inner working of the balanced lawyer’s body. This does mean the ability to appreciate feelings that come with the beauty of nature and the beauty of the inner person.

What Does Balance Accomplish? Balance accomplishes well roundedness. The balanced lawyer feels good about himself because he has a social life, an intellectual life, a physical life and a spiritual life. This makes him healthy and able to practice law at the highest level. This allows him to put events into perspective. This allows him to appreciate the ups and to accept the downs.

Post Footer automatically generated by Add Post Footer Plugin for wordpress.

Some thoughts on the ups and downs of being a personal injury trial lawyer. First the ups:

Satisfaction of Getting Justice. For a personal injury lawyer justice is getting our client fair compensation; this means our client’s net compensation is more then what she would have received without our representation. Thus, we know we have justified our existence through our representation.

Satisfaction of Making the World a Safer Place. When we right a wrong it is less likely the same conduct will happen again. This is because people change their conduct and act in a safer way when they know they are held responsible for negligently harming another.

Making a Decent Living. With any job there is satisfaction in receiving compensation for a job well done. Our compensation is fair when it follows our fee agreement, it is less then the compensation received by our client, and it bears a relationship between the time, effort and risk involved in the case.

Working with Cool People. It is always a pleasure when we get to work with cool people. Cool people can and do include our client, witnesses, opposition lawyers and insurance adjusters. Just because we are adversaries does not mean dislike, distrust and difficult relations. When we work together to coordinate fair compensation we turn potential war into peace. This translates to less stress on our client and less stress to all involved.

Now the Downs:

Losing a Trial. It is always bummer to lose a trial. We like our client, we believe in our case, we have done our best at trial, yet we lose.  All good lawyers lose cases. We reflect on why we lost, and we learn from the loss. On being bummed,  the rule is no more then 24 hours remorse, then get back on the horse, and ride into the next case.

Work, Work and More Work. Although a personal injury lawyer can make a decent living the reality is personal injury trial work is a lot of work. Here we need to remember the Tom Hanks line to Dotty in A League of Our Own: It’s supposed to be hard. If it wasn’t hard, everyone would do it. The hard… is what makes it great.

Difficult People. In some cases we must deal with difficult people. It is always a downer to have to deal with a difficult person in a case. The best solution is kill him with kindness. When this does not work kill him with the rules. Never resort to becoming an asshole. Recognize all things must end, and our relationship with the difficult person will come to an end.

The Reality:

Being a career personal injury trial lawyer is a marathon. Stay in mental and physical shape, recognize life is about relationships and enjoy relationships, prepare for our case,  give our best effort, and never, never quit on ourself. Remember the world is a better place when justice is accomplished.

Post Footer automatically generated by Add Post Footer Plugin for wordpress.

The King County Superior Court requires mediation before trial. Statistics show over 90% of cases settle. Here are some mediation considerations:

Why Mediate. Outside of the fact mediation may be mandatory,  lawyers must ask why are we mediating. When the insurance company is taking a no liability or limited liability position, or when it is clear there is no appreciation of the value of the case, mediation is a waste of time.  Here the lawyer should move to waive mediation or use a bargain basement mediator.

Reverse Psychology. Insurance companies expect the plaintiff lawyer to settle before trial. They take this for granted and calculate the lawyer will settle for less than a good trial result. When the plaintiff lawyer ignores settlement and works the case with the intent to try the case the insurance company is caught off guard. This is not what it is used to seeing. This leads to a better appreciation for the case which translates to higher case value.

When Mediation is Essential. When the case has been properly worked and ready for trial and you want to hear the most the insurance company will pay for the case mediation is where you want to be. In can be argued the lawyer owes it to his client to mediate whenever there is an appreciation of the case. A case has two values: The most the insurance company will pay, and what the case will bring at trial. At mediation the lawyer gets his client the most the insurance company will pay. This may be equal to or greater than the trial value. And it is a sum certain without risk.

Take Mediation Seriously.  Always submit a mediation memorandum. Show what will happen at trial. Have client bound with  mediator. Create a sense of trust, confidence and belief in the mediator. Show the mediator you know she is doing everything possible to get the highest offer. Show the mediator you have confidence in your case. When she brings in the insurance company lines on case problems swat them away as in trial. She will take this back to the insurance company. Never tell the mediator your bottom line and never show satisfaction with the insurance offer (until you know it is over).

Possibility of High Low Agreement. Consider a high low agreement when it is evident there is substantial risk on both sides and the insurance company is offering a decent amount in mediation. Under the high low agreement the insurance company agrees to pay a minimum amount even if there is a defense verdict. In exchange plaintiff agrees to limit her recovery to the high amount even if there is a runaway verdict. In a first party case (insurance company is client’s company) the insurer should pay the low amount immediately.

When to Try the Case. Before the mediation have a realistic appraisal of the trial/arbitration value of the case. If the insurance company is substantially below this evaluation (even when increased costs of trial are considered) then try the case. At least in mediation you have gained a better understanding of how defense will try the case. You have also done your job in determining  the insurance company’s highest offer.

Post Footer automatically generated by Add Post Footer Plugin for wordpress.

The United States Supreme Court will decide next month whether to hear a case involving the infamous Feres Doctrine. In 1950 in Feres v. United States, the Supreme Court held that military servicemen cannot bring actions against the United States for injuries which “arise out of or are in the course of activity incident to service.”  The doctrine has been criticized by VA groups and military personnel as unfairly limiting an active military person’s recovery rights.

Supporters of the Feres Doctrine maintain eliminating the doctrine will “demean injuries suffered in combat by providing the soldier injured on the battlefield with administrative compensation while the soldier injured in a military hospital could seek a multi-million dollar damage award in federal court.” (US Rep. Trent Franks, R-Ariz).

Distinguish between Battlefield and Hospital. There are traits of a good soldier and I suspect most people who chose to go into the military have the traits of discipline, courage, and reliability that make a good soldier. The soldier no doubt understands he is getting into potential loss of life and limb in battle. But once the battle is over, and the soldier is in the care of  a military health care provider, he should be able to rely on proper care. This means the same standard of care a retired soldier or non military person receives.

The Trial Lawyer Myth. In 2009 a bill was introduced into the House that would limit Feres by allowing military personnel to sue for medical malpractice. Republican lawmakers derided the bill maintaining it would be expensive and benefit trial lawyers more then service families. The bill died. This argument ignors the fact that a soldier who is injured by military health providers who fall below the standard of care and cause harm lacks the money to pay a lawyer to take on the United States Government. It is only through the contingent fee offered by a personal injury lawyer that the soldier is able to maintain an action to redress his injuries. If the lawyer loses the case he receives no fees and most likely loses the money he has spent to work up the case. These realities ensure the lawyer will not bring a frivolous lawsuit.

Government Cost in Claims. Allowing a soldier to sue for government negligence outside the battle field will result in the United States Government paying valid claims and this will cost money. But there will be two corresponding benefits.  First, the soldier will receive the compensation to which he is entitled. Second, our Government will inevitably take steps to remedy the cause of the harm. This makes life safer for the next soldier.

Value Our Soldiers. The principal reason the Feres Doctrine should be modified to allow soldiers to recover for government negligence off the battlefield is respect and dignity to our military personal. Our soldiers risk life and limb at less pay than they would receive in the private sector. Our military is the foundation for our greatness as a nation. Military personal should have the same rights we have as United States citizens to redress negligent wrongs that harm them and their families.

Post Footer automatically generated by Add Post Footer Plugin for wordpress.

The issue of “civility” among lawyers is being discussed in Washington. This post sets forth my input on dealing with the opposition lawyer.

Not Much has Changed. Over the years the topic of lawyer civility surfaces and when it does the topic is accompanied with the exclamation that lawyer professionalism is not what it used to be in the good old days. I am here to report that not much has changed. Of course there are some ass hole lawyers but the ass hole lawyer has always existed and always will exist. Yesterday and today the majority of lawyers are decent people doing their job. Today is the same as “the good old days.”

Get to Know your Opponent. The key to being a lawyer is to get tho know the other lawyer. This means take the time to learn what the other lawyer does outside of practice law. Listen and learn. Usually you will find the other lawyer either has interests similar to yours or has interests that are worth talking about and learning about. This creates common ground that can be built on to reach consensus on procedural matters and potentially substantive matters.

Return Phone Calls. Never ignore the opposition lawyer. In fact  go out of your way to communicate with the other lawyer. In the old days this meant promptly returning phone calls. Today we add promptly respond to e-mails as well as phone calls.

Coordinate Dates. Rather then setting a deposition or motion without contacting the opposition lawyer, pick up the phone or e-mail to get dates that work for him before scheduling the matter. Also be sensitive and receptive to the other lawyer when he needs to reschedule a matter. This type of professional courtesy will come back in spades because he will return the favor and inevitably you will need the favor returned.

Kill Him with Kindness. In the rare case where the opposition lawyer is an ass hole, kill him with kindness. Never lose control. Always conduct yourself as you would in the courtroom. In this vain use the rules on the ass hole. Stand on them with firm professionalism. Put all matters in writing-writing you would have no problem with the judge seeing.

The Courtroom. In court especially in the presence of the jury show professional courtesy at all times. Leave a distance between you and the opposition lawyer. Never buddy-buddy in front of the jury. Always figure the jury likes both lawyers but wants to see a battle and in battle the two sides are not overly friendly.

The Unknown Opponent. Never underestimate your opponent. Never over estimate your opponent. Prepare for your case, believe in yourself, accept the possibility of failure, give your best effort, and never, never quit on yourself.

Post Footer automatically generated by Add Post Footer Plugin for wordpress.

In a wrongful death case the jury is required to place a monetary value on human life. This post discusses different ways our society places a value on a human life:

Bush Administration Value. In 2008 the Bush Administration placed a value of  $6.9 million on a human life. This was $.9 million less then the value placed on a human life by the administration five years before. The administration places a value on a human life for purposes of EPA regulation. Put simply when determining whether to regulate the total cost of the regulation is weighed against the total cost of lives saved by the regulation. When the cost exceeds the number of lives saved times $6.9 million the regulation is too expensive.

BP Spill Value. The Wall Street Journal reports death settlements in the BP Deepwater Horizan oil rig explosion are in the $8 million to $9 million range. “The companies are eager to settle the cases and avoid widely publicized trials… .” WSJ March 30 2011 at A5. As reported by the Journal the settlement range is higher then what is seen in most wrongful death settlements because of the sensational in the news nature of the wrong that led to the tragic deaths.

Medical Insurance Companies. Medical insurance companies place a value on one quality year of human life to determine whether to cover a medical procedure. They typically place a value of $50,000 on one quality year of life. They use this formula to determine if a new medical procedure will be covered. $50,000 seems low. A Stanford economist calculates the amount should be $129,000 for the value of one quality year of life.

Same or Different Value. Kenneth Feinberg  a New York attorney was dealt the task of assigning wrongful death amounts for people killed in New York in the 911 terrorist attack. He used typical legal standards such as age and earning power to assign value. This meant a successful stock broker’s family received more then the family of a fireman because of the difference in earnings. Feinberg states he became troubled with assigning different values and came to the conclusion that all lives are worth the same. Later when he was dealt the task of assigning life values to those killed in the Virginia Tech shootings he treated all lives the same regardless of age and earning power and compensated all families in the same amount.

Jury Instruction. In a wrongful case in Washington the jury is instructed to compensate for loss of love, care, companionship, and guidance. These are the elements of general damages for the emotional loss of a parent or child. The financial loss is determined in the “survival action.” It is up to the lawyer to suggest to the jury what the value of the life is. The lawyer is guided by his experience in wrongful death cases, by prior jury results, and by the facts of his case. Although the value is priceless, the jury will set a value. The lawyer has the difficult job of calculating the value of life in his case. It is my hope this post provides some assistance.

Post Footer automatically generated by Add Post Footer Plugin for wordpress.

To understand wrongful death law we must start in England where the common law began. At common law a plaintiff  injured by the negligence of another could recover damages from the negligent defendant. But when the plaintiff was killed, the action died with the plaintiff, so there was no wrongful death cause of action.

This changed in the United Sates with states adopting wrongful death statutory law. This post discuses how wrongful death works under Washington statutory law.

Wrongful Death Action. Washington statutory  law provides a wrongful death cause of action which must be brought by the personal representative of decedent’s estate. The law only allows certain statutory beneficiaries to recover through the personal representative.

First Tier Statutory Beneficiaries. Children (including stepchildren), spouse/domestic partner, and parents of a minor child are first tier. This means they can recover damages without showing economic dependence.

Second Tier Statutory Beneficiaries.  Parents of an adult child, and siblings who are economically dependent  on decedent are second tier statutory beneficiaries. They may recover only if there are no first tier statutory beneficiaries.

The law contemplates damages for the emotional loss of the loved one. The statute says In a wrongful death action the jury may give such damages as, under all circumstances of the case, may to them seem just. It is the lawyer’s job to recommend a just amount to the jury.

Survival Action. In Washington a survival action allows the personal representative to recover the economic loss of the decedent as well as his pain and suffering. These losses are not recoverable under the wrongful death law so a survival action is joined with the wrongful death action. Since the wrongful death law does not allow parents to recover  for the emotional loss of their adult child, the only case the parents have is for the economic loss and pain and suffering of their child while living. This action only exists to the estate so the parents must be beneficiaries of the estate.

Economic loss is based on the income decedent would have earned during his economic life expectancy. First, the life expectancy income is calculated. Second, consumption (what the person would have spent) is deducted. The balance is then  reduced to a present value (the value of the stream of income today as a lump sum amount).

Pain and suffering is calculated for the time  between the injury and death that decedent experienced pain and suffering. This is a general damage amount totally up to what the jury deems fair.

Post Footer automatically generated by Add Post Footer Plugin for wordpress.