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Personal Injury

Friday, December 27, 2013

"We Don't Get Paid Unless We Win" - What does it all mean?

Each day, thousands of advertisements for personal injury lawyers can be found in local newspapers, on television stations and even on social networks like Facebook and LinkedIn. Most of these ads explain that the firm doesn’t collect any fees unless they win. Of course, there’s usually a catch with this statement and it centers around what the advertising firm means by “fees” and what other costs you might be expected to pay regardless of whether or not you win your case.

Attorney fees usually involve the time and labor of the attorneys and their staff. These fees do not include the out-of-pocket case costs that are inevitable in any court proceeding. So while you may not be required to pay any attorney fees upfront or at all (unless you win), you may be required to pay all related case costs. Case costs are usually expenses charged by third parties for work on your case. These may include court filing fees, expert witness fees, cost of obtaining medical records, court reporter fees, etc. Depending on the scope of your case and the duration of these proceedings, these fees can easily be thousands of dollars.

While some firms will require you to pay case costs as they are incurred, others won’t require upfront payment (especially, if you have a very strong case) and will instead deduct these expenses from the final settlement. Combined with legal fees, these costs may add up to 50% or even more of the settlement. In selecting an attorney for your personal injury matter, it’s important that you take time to understand what expenses, in addition to attorney fees, you will incur.


Saturday, December 14, 2013

3 Steps to Follow When You Are Injured or in an Accident

The legal process involved in filing a personal injury lawsuit may deter some people from seeking damages regardless of the severity of their injury, but, having an idea of what you can expect at each stage of the process can help you determine if legal action is the appropriate route to take in your particular situation. An experienced personal injury attorney can counsel you as your case develops, and fight for your rights in the courtroom if necessary in order to achieve the outcome that's most favorable to you.

Regardless of how you were injured, there are certain steps that everyone who is in an accident or has been injured in some other way should take if they think they may have a personal injury lawsuit. The tips below provide an outline of what to keep in mind in the days, weeks and even months following your injury to ensure your potential personal injury claim is on solid legal ground.

A variety of situations can lead to injury, such as a slip/trip and fall, a car accident, a defective product, or a dog bite, among many others things. Following the suggestions below can help protect your right to file a claim for your injury in the near future, and will likely allow the filing process to run more smoothly than if you don't take these early preparations.

Put everything in writing.

Take notes on all the details of your injury. These don't have to be formal statements, just jotting down everything you can remember about the circumstances immediately before, during and after your injury can be a big help when it comes to filing your claim and jogging your memory. This sort of anticipatory preparation could mean the difference between your claim being invalid and you collecting all of the benefits to which you are entitled. It's even important to write down the conversations you had with others who may have been involved in the accident or injury claim, even if they were just a witness. Make sure that your physician or the hospital you visit for your injury notes the circumstances surrounding your injury in their records.

Take photographs.

If possible, take pictures of your injuries and the scene of the accident as soon as you can following an accident or injury. Focus on any visible cuts, bruises, burns, swelling or other marks on your body. Don't just take one picture, make sure you capture the injury and the scene from a variety of angles. This approach will hopefully result in some detailed pictures you can later present to the insurance company as evidence supporting your claim.

Obtain copies of your medical records.

Medical records can be an integral part of your claim, and have the power to make or break your case. Whether your medical records just serve to help you seek medical treatment from a specialist or if you need them to support your claim that your injuries were in fact caused by this accident and not a pre-existing condition, it's important to contact your physician and get copies of all records that may be pertinent to your case.


Tuesday, December 3, 2013

Distracted Driving in Personal Injury Cases

Distracted driving has emerged as a disturbing trend that poses a serious threat not only to preoccupied drivers, but to other motorists on the roadways. Accidents caused by this unsafe practice have seen a major uptick in recent years due to the widespread use of smart phones to text and post to social media platforms, such as Instagram and Twitter, while driving. Although drivers of all ages may be guilty of driving while distracted, studies have found that teenage drivers are especially tempted to use their phone to snap photos or text from the driver's seat.

Personal injury lawsuits on the basis of distracted driving are becoming more prevalent. A wrongful-death suit against taxi-alternative company Uber cites distracted driving as the cause of a collision that killed a 6-year-old girl and injured her mother and brother while they were crossing the street on New Year's Eve in California. Allegedly, the Uber driver was logged into the company's smart phone app, waiting to receive and accept a ride request, when his SUV collided with the girl and her family. Although this case doesn't involve a teenage driver, it demonstrates how (alleged) smart phone use while driving can have horrifying consequences.

More than 3,300 fatalities occur each year as a result of distracted driving, according to the Department of Transportation and Distraction.gov, the official US website dedicated to distracted driving. Drivers are twice as likely to crash if they're texting while driving than if they were paying attention.

Car crashes are the leading cause of death among teenagers, with cell phone use being reported in 18 percent of all distraction-related fatalities in America. These scary statistics have led the National Highway Traffic Safety Administration (NHTSA) to create an campaign against distracted driving aimed at young adults.

If you have teenaged children or you just happen to be up on current trends, you'll know that many young people use their cell phones to take "selfies", a nickname for self-portraits. It's come to the attention of law enforcement and safety advocates that teens are taking selfies and posting to social media while behind the wheel, some of them even use the hashtag #Ihopeidontcrash with their photos. Expressing that fear, even though it's disguised with a supposedly amusing hashtag, shows that these young drivers have an inkling as to how dangerous this practice could be.

On average, texting takes your eyes off the road for 4.6 seconds. Distraction.gov says that at 55 mph, 4.6 seconds with your eyes on your cell phone is like driving an entire football field blindfolded.

Distracted driving falls into three main categories:

  • manual: taking your hands off of the wheel
  • visual: taking your eyes on the road
  • or cognitive: not being mentally present while driving.

Distracted driving laws vary by state, but many have a law in place that bans drivers from using handheld phones. In addition, most states ban bus drivers and beginner drivers from all cell phone use (handheld and hands-free), and enforce a ban on texting for all drivers.


Monday, November 25, 2013

Serious and Catastrophic Injuries

Serious and Catastrophic Injuries: Is Your Attorney Up to the Job? 

It’s not at all unusual for personal injury attorneys to handle cases involving a wide spectrum of injuries resulting from dog bites, car accidents, poorly maintained sidewalks or defective products. Generally, these injuries are relatively minor-cuts, bruises, broken bones and whiplash. Fewer attorneys, however, have extensive experience with catastrophic injury cases such as those involving dismemberment, brain injury and severe burns. It’s difficult, for instance, to convince insurers that the loss of a limb is worth the full limits of an insurance policy. It also requires a special ability to convince a jury that a brain injury has caused subtle but important changes in personality, memory and the ability to perform specific tasks related to an occupation. 

In addition to a successful track record of obtaining outstanding compensation for individuals with similar injuries, your attorney should have a network of medical professionals who can provide insight into your claim, as well as expert testimony in trial. Only a physician can prove that hard-to-detect memory issues affect a person’s ability to perform the activities of daily living. A life care planner can accurately estimate the long-term costs of necessary at-home medical care. And a mental health professional can effectively identify, document and demonstrate hard-to-detect personality changes following a traumatic brain injury. When meeting with a personal injury attorney, ensure that he or she has a network of medical consultants that can be called on at key points in your case. 

By working with an attorney who can demonstrate the knowledge and experience needed to effectively handle your serious injury case, you can take a step towards ensuring you will receive the financial compensation you need and deserve. 


Friday, November 15, 2013

On-the-Job Injuries

On-the-Job Injuries, Worker’s Compensation and Third-Party Claims

Worker’s Compensation Benefits Only Go So Far

Workers’ compensation laws have two primary objectives:  The first is to ensure that injured workers receive the compensation they need following an on-the-job injury and the second is to ensure that injured workers received the compensation they need quickly and easily, and without anxiety as to whether the funds will actually be available.

Millions of injured workers have received funds dispersed by the Office of Workers' Compensation Programs (OWCP), which compensates workers for lost wages, medical expenses and other expenses directly related to their injuries and losses. There is another loss for which the OWCP cannot reimburse workers: pain and suffering. This means that, despite injuries that are severe, injured workers are barred from OWCP compensation for:

  • Mental trauma associated with a serious injury or disability
  • The inability to accomplish the activities of daily living
  • A diminishment in quality of life
  • Loss of consortium on the part of a spouse or family member (in the event of the death of a worker)
  • Loss of mobility (except in relation to diminished earning capacity and other direct financial loss)

Fortunately, there is often a way for workers and their families to obtain additional, high-value, lump sum compensation following an injury on the job – a third-party claim.

What Is a Third-Party Claim?

To understand third-party claims, it’s important to understand that Worker’s Compensation claims are paid via the employer’s Worker’s Compensation insurance. Federal law limits what the insurance covers, leaving injured workers uncompensated for a range of losses.

Successful third-party claims result in compensation paid to an injured worker, or his or her family, not by Workman’s Compensation insurance but by a third party. A third party can be the insurer of a contractor, subcontractor, vendor or other party on a work site that was responsible for the accident and subsequent injuries.

A third-party claim could look, generally like this:

While working for a roofing company, a roofing assistant sustains a concussion when a can of paint, owned by the house-painting contractor, falls on him from above. In the wake of the injury, the employee requires a great deal of medical care resulting in high medical bills and a month of missed work. The worker files for and receives compensation from the Office of Worker’s Compensation Programs through his roofing company employer but this compensation only covers medical expenses and lost wages. In order to recover damages for the pain and suffering associated with the injury, the assistant hires a personal injury attorney and receives a high-value award for the other losses resulting from the injury. The award is not paid by the Office of Worker’s Compensation Programs but instead by the insurer of the painting company whose negligence caused the injury. 

If you or a family member endured the pain, shock and loss of a serious on-the-job injury, you should investigate the possibility of a third-party claim. A third-party claim can result in compensation that covers your whole loss, not just the losses directly related to medical and wage expense. To learn more about third-party claims, contact a personal injury lawyer. 


Tuesday, November 5, 2013

What Should You Do When Your Insurer Wants to Settle Your Personal Injury Case?

Hint: When You’re Injured, Your Relationship with Your Insurer Changes

Have you ever marveled at how much better an airline, retailer or other business is at processing your order and taking your money than it is at providing a refund? The reason isn’t technological and it isn’t because the refund process is somehow more difficult. It’s because the nature of the relationship between you and the business has changed. You are no longer a prospective customer the business is trying to woo or a current customer the business is trying to please. Instead, you’re a liability. And liabilities are on the bottom of most businesses’ priority list. 

Likewise, when you are looking to buy car insurance or other insurance involving personal injury, insurers are anxious to “sign you” and lock in the premiums you’ll pay. When you’re injured though, you area liability and chances are you’ll be treated like one. 

Following an Accident, Your Insurer May Try to Save Money at Your Expense

Here’s how most insurance companies respond to news of a serious accident on the part of one of their insureds. 

Perhaps a car accident has resulted in the need for expensive surgery, physical therapy and home care. Like everyone, you’re afraid of a protracted delay in the payment of your medical expenses and other costs. Your insurer is aware that you’re likely experiencing this anxiety. 

By offering you a quick settlement, the insurer can capitalize on your anxiety by offering you far less than your claim for damages is likely worth. For instance, perhaps you’re insured for $1 million. Your medical costs and other losses may total $300,000. By offering you a fast settlement of $75,000, your insurer can appear helpful and concerned while actually saving $225,000.

Not all insurers handle claims like this example every time, but you should be aware of insurers’ motivations following an accident and make informed decisions accordingly. The best way to make informed decisions is with the assistance of an experienced personal injury attorney. 

A Personal Injury Attorney Can Protect Your Rights and Interests.

A qualified personal injury attorney can protect your interests by dealing knowledgeably with the facts of your case. What is the likely extent of your injuries? What are the limits of your insurance policy? What would a jury likely award you based on the facts of your case? And what is the actual value of your case, based on the answers to these questions?

Once your attorney investigates your case in conjunction with medical providers to assess your injuries and determines the value of your claim, he or she can work from a position of strength to negotiate with your insurer. Remember, an insurance policy is a legally binding contract. If you’re injured and covered by insurance, your insurer is obligated to pay you the full value of your claim, unless you make the mistake of settling for a lesser sum early in the process. Contact a personal injury lawyer as quickly as possible whenever questions regarding insurance policy payouts arise. 


Friday, October 25, 2013

Affidavits

Affidavits: Avoiding Potential Problems

You may have signed several affidavits over the years, without fully knowing what they are.  You might have signed one to register to vote or obtain some government benefit.  An affidavit can also be used as evidence in a lawsuit.

An affidavit is a written document.  The person signing it (the “affiant”) declares under oath that he or she is making voluntary and truthful statements.  Requirements for an affidavit vary based on the circumstances and jurisdiction.  In most jurisdictions, an affidavit must contain the affiant’s name, physical address and the affiant’s signature.  

The contents need to be voluntary and limited to what the affiant knows to be true because of direct observation or experience.  Before signing an affidavit, be certain of the basis of your knowledge.  Do you know these statements to be true or just think that they’re true?

Most jurisdictions require the affiant swear under oath that the statements are true before signing the document.  That signature needs to be witnessed and certified by a notary public, attorney or other public official authorized to take oaths.  The affiant must understand the content of the affidavit, the importance of an oath and the consequences for violating an oath.  A person who lies on an affidavit may be deemed to have committed perjury and face considerable penalties. Given the significant consequences, anyone who is not mentally competent shouldn’t sign an affidavit or be asked to sign an affidavit.

You may be asked to sign an affidavit if you witnessed an incident that may lead to, or has already resulted in, legal action.  Parties, or their attorneys, may want a formalized, written statement of what you saw.  If you’re in this position, make sure the affidavit is complete and accurate.  Consult your own legal counsel before signing.  The party contacting you may want an affidavit that puts them in the best light, not one that tells the whole story.

Be very careful about what’s stated in the affidavit, as opposing counsel may focus in on the document and investigate every aspect of it during litigation.  In a deposition or during a trial, opposing counsel may press you on the contents of affidavits to impeach your credibility.  

Is this the first affidavit on this topic?  If not, review the previous affidavit(s).  If something you previously stated was true, but you now know is false, you need to discuss with your attorney how this should be addressed.  
 
Before signing on the dotted line of an affidavit, think it through and make sure the information presented is accurate.  If you have any questions about an affidavit you’ve been asked to sign, or want to sign for your own purposes, consult with an attorney who can review it to ensure it is optimally drafted and does not end up getting you in hot water.  
 
 
 

Tuesday, October 15, 2013

Alternative Dispute Resolution

Alternative Dispute Resolution Might Be the Right Way to Bring a Case to a Close

Civil lawsuits arise because of a dispute between parties.  They’re unable or unwilling to resolve the dispute, so they get lawyers involved and cases are filed.  The litigation process is a way to resolve those issues with the help of a judge or jury.  But that’s not the only way to resolve a dispute.  
 
There are costs and benefits to litigation.  The obvious benefit is that a party may get the resolution it wants.  In a commercial context, pursuing litigation can also serve as a notice to others that the business does not hesitate to enforce its rights. But, the costs of litigation are many.  
  • Litigation often comes with a hefty price tag.  A party might not only be on the hook for its own costs and attorneys’ fees, but also a verdict against it and possibly the costs and attorneys’ fees for the opposing parties.
  • A case can literally take years.  If you win at trial, there could be an appeal.  Collecting on a money damages award will take time, if you can do it at all.  The time and energy a party spends on a legal case is time and energy not spent on other things, like family, making a living or running a business.  
  • Litigation can be emotionally draining.  The parties may have to relive over and over again, during depositions (when parties are questioned under oath) and at trial, in front of total strangers, very stressful and painful situations.
  • Litigation results in a loss of privacy.  Court proceedings and verdicts are generally matters of public record.   Someone off the street can go to the court clerk’s office, open up a file and read about very personal issues (such as family disputes, medical conditions and finances).  
One way to seek the outcome a party wants, without the heavy costs and risks of litigation, is alternative dispute resolution.  The parties can agree to mediation or arbitration, which may bring litigation to a close.
 
Mediation is a process by which a mediator works with the parties and attorneys to create a resolution acceptable to all parties.  Arbitration is a more formal process by which evidence is presented and an arbitrator (or panel of arbitrators) decides who should prevail.  An arbitration decision may or may not be binding on the parties.  
 
A mediator will learn the circumstances leading to the case, the parties’ positions and what they’re willing to give and take to resolve the issue.  The mediator may meet separately with the parties, try to create common ground and possibly come up with creative ways to meet the parties’ needs.  A mediator may, or may not, try to guide the parties with his or her assessment of the strengths and weaknesses of the case and the likelihood of success or failure, if it proceeds.
 
The parties can control how much time and energy this will take, instead of being subject to a trial schedule.  Agreements can be kept confidential.  Money, time, energy and emotions not spent on litigation can be spent on other things.  
 
Alternative dispute resolution is a means to bring control and certainty to the legal process which is invaluable when you are recovering from a traumatic, stressful and painful event that led to the legal action in the first place.

Friday, October 4, 2013

Importance of Expert Witnesses

Expert Witnesses Can Be the Key to a Lawsuit

In civil cases, plaintiffs have the burden of proving defendants are to blame for their injuries or economic losses by a preponderance of the evidence, which essentially means, that based on the evidence, the defendants were more likely than not responsible for the injuries.  That can be a lot more complicated than it sounds  Expert witnesses can be a critical key to success in winning over the jury and winning these complex matters.
 
Take the case of Margaret Wellinghorst.  In November 2007, she was walking her dog when she tripped on the edge of a trench that had been dug in the road.  She fell and injured her left hand.   With the help of her attorney, to get compensation for her injuries, she sued the companies responsible for creating and filling in the trench and repairing the road.
 
Ms. Wellinghorst had the burden of proving that the defendants owed her a duty of care, defendants breached that duty and as a result, she suffered injuries.  The fact that she tripped over the edge of a trench created by defendants and was injured, simply wasn’t enough to win her case.  She had to prove negligence by defendants.  To do that, an expert witness was introduced to show defendants did something wrong which consequently injured the plaintiff.   
 
Expert witnesses are used to introduce evidence that’s scientific, technical or specialized in nature.  It’s the kind of evidence that the average person isn’t qualified to introduce, or to render a judgment upon, given the facts of the situation.
 
Ms. Wellinghorst’s expert witness was William Poznak, a civil engineer with over 30 years of professional experience.  He examined the roadway, took measurements, took photographs and created a report.  He observed that the section of trench under the road sunk uniformly over the years, while the rest of the road did not.  In a deposition, Mr. Poznak gave the opinion the trench was backfilled improperly, which lead to the surface sinking and Ms. Wellinghorst’s injury.  
 
Mr. Poznak’s opinion was that the defendants did their work negligently.  But all he had was his opinion and that’s not enough.  He couldn’t say why that area of road sank, thus had no facts to back up his opinion.  Defendants’ attorneys brought up two possible tests that he could’ve done to help determine what happened.  Mr. Poznak admitted he had performed neither.  
 
The expert was unable to perform the key role he was hired to do.  He couldn’t explain why the area of the trench sank into the roadway.  If he couldn’t do that, he had no factual basis for his opinion that the defendants did something wrong or did something negligently which resulted in plaintiff’s injuries. Since the plaintiff had no other experts, and Mr. Poznak’s testimony was the best the plaintiff could do, Ms. Wellinghorst’s case was dismissed.
 
A legal case is like a chain in that it is only as strong as its weakest link.  Competent attorneys will test every link to its limits.  In this case, the weak link that broke the case was the expert testimony.  In our cases, we hire the right experts who are knowledgeable and experienced, and are able to communicate effectively in a courtroom.
 

Wednesday, September 25, 2013

Deposition Tips

Deposition Do’s and Don’t’s

Matters that are subject of litigation are ultimately decided on facts and the applicable law. The process by which parties uncover those facts is called discovery.  There are many tools in the discovery toolbox.  A deposition (questioning of a party or witness under oath, often referred to as a “dep” or “depo”) is one of the most powerful tools.  
 
At the start of the proceeding, the judge sets a date by which depositions are to be completed.  Attorneys issue subpoenas requiring a party or witness to appear at a certain place on a certain date and time (production of documents or other evidence may also be requested).  A court reporter is present to create a record of the questions and answers.  Some depositions are video recorded.
 
At the deposition, both parties should have their attorneys present.  A witness can have his/her own attorney present if he/she so desires.  Those testifying are placed under oath, and the attorney issuing the subpoena then starts the questioning.  Next, the opposing attorney has a turn to ask follow up questions.  This normally goes back and forth until the attorneys are done.  
 
Depositions aren’t just about questions and answers.  Just as critical as what was said can be how it was said.  Was the person evasive?  Uncomfortable?  Credible?  Nervous?  Sure of the facts?  Would the person damage or help the case if testifying in court?  These issues can be critical when deciding whether to settle a case or proceed further.  If one party’s witnesses are much weaker than those of the opposition, it may make that party much more willing to settle.
 
If you’re going to be deposed, you should keep the following in mind:
 
Tell the truth.  If you knowingly make a false statement while you’re under oath, you may be charged with perjury. In addition, you will lose credibility, and weaken, your case.
 
If you honestly don’t know the answer to a question, say you don’t know.  A deposition isn’t a contest and you won’t lose points by truthfully admitting you don’t know something.
 
Stick to the point and answer the questions as asked.  Needlessly stating information not requested may damage your case.  
 
If you don’t understand a question, ask that it be repeated or re-phrased.  If you feel you need to talk to your attorney before answering, ask to speak to your attorney. After doing so, answer to the best of your ability, in light of your attorney’s advice.  Your attorney may object to a question, but you may have to answer it anyway.  Prior to trial, your attorney may ask the judge not to use the response as evidence, as the question was improper. 
 
Though depositions can be stressful, they are not to be feared.  They are opportunities for all parties involved in a legal matter to tell their side of the story.  

Monday, September 16, 2013

Medical Malpractice, Standards of Care and Your Legal Rights

Medical Malpractice, Standards of Care and Your Legal Rights

Despite efforts to mitigate their occurrence, medical errors by doctors, nurses and other healthcare providers result in a significant number of injuries and deaths every year.  It’s important to note that not every treatment which results in the degradation of the patient's condition(s) or in failure to restore health constitutes medical error or malpractice.  Instead, malpractice occurs when there is professional negligence by healthcare providers or facilities.

Professional negligence by act or omission by a health care provider occurs when the treatment provided falls below the accepted standard of practice in the medical community and causes injury or death to the patient. In order to determine whether there was malpractice, the key issue is whether physicians and caretakers followed accepted standards of care.

What are standards of care?
Though medical care is highly complex, there are a finite number of issues that afflict people with any regularity. Because of this, standards have emerged that the medical community has agreed should be followed in almost any given medical situation.

Therefore, if a patient arrives at a medical facility with one or several symptoms, the attending physician should perform a series of predetermined steps to diagnose and treat the patient. These rather inflexible, predetermined steps are standard; they’re standards of care. Standards of care can vary by specific circumstances but most often involve questions and steps such as:  

  • Was an investigation conducted and did the doctor take steps that he or she would have been reasonably expected to take?
  • Was a diagnosis pursued?
  • Was treatment provided in a timely manner?
  • Was the patient informed of risks? This is known as informed consent.
  • Did the healthcare facility provide a healthcare professional who was qualified to provide to the care that was needed?

What Other Issues Can Arise Regarding Standards of Care?
Standards of care involve agreed-upon rules, but medical professionals can nonetheless disagree on what action should have been taken in relation to specific situations. Questions regarding the medical issue itself may affect standards of care, as well as the location of the facility in which the care was provided and the resources at the facility’s disposal. For instance, a small, rural clinic may operate on a different standard of care than a well-funded urban or university hospital. Most medical malpractice cases, therefore, rely on medical expert testimony for proof that malpractice occurred and that a deviation from standards of care was made. Only other physicians are qualified to testify regarding the competence of a doctor who may have committed medical malpractice, and only specific physicians are able to testify knowledgeably regarding the limitations and capabilities of a specific health care facility.

If you suspect that you’ve suffered injury at the hands of a doctor who didn’t follow the standard of care, contact a medical malpractice attorney who can provide effective counsel regarding the building and management of your case. 



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The Stealey Law Firm is based in Parkersburg WV and serves the surrounding counties of Wood, Jackson, Wirt, Roane, Doddridge, Pleasants, Tyler, and Ritchie in the legal area of Personal Injury.



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