Interviewer: What is my case worth?
Reuben J. Donig: So, how do you… Another way of asking that question is, how is the value of your case or your damages calculated?
Your damages are calculated based on a few basic principles. First of all, let’s assume that you’re completely faultless. You have no liability for causing the situation or your injuries. If there’s no fault on your part at all, and it’s entirely somebody else’s fault, then to start with, you’re entitled to collect 100% of your damages. So, that’s one factor.
The second factor is, what are your economic damages? I mean, if you’re entitled to collect 100% because it’s entirely someone else’s fault, then you’re entitled to collect all of your past and future economic damages. That means any income loss that you’ve experienced or will experience in the future, or reduced earning capacity, your past and possibly future medical expenses, and any other assorted losses or out-of-pocket expenses. You’re also entitled to be compensated for what are called general damages, pain, and suffering, the loss of the quality of your life, factors that have impacted your life adversely. It’s something that you can’t just look up in a book to say, “Well, this is what it’s worth.” It’s a matter of feel, it’s a matter of negotiations between…
Interviewer: Oh, damn.
Reuben J. Donig: Can you cut based on that thing?
Interviewer: How long will my case last?
Attorney Reuben J. Donig: There are various factors that will go into deciding how long your case will last. Number one, your case cannot be settled until you have either healed from your injuries, or your injuries have reached a point where a very reasonable prognosis can be made. If you’re never gonna reach full healing, we at least have to have the doctors being able to say, this is what your future is going to entail. You’re gonna have these kinds of pains, you’re gonna have these kinds of symptoms, you’re gonna need this kind of treatment, it’s gonna cost so and so much. It’s gonna limit you from doing this, that, and the other thing. Whether it’s work limitations, whether it’s recreational limitations, whether it’s daily life limitations. You have to know those things before you can reasonably assess a case, and come to a reasonable valuation and settlement. So, as long as it takes for you to reach that stage. That plateau where you’re either healed, or you’ve leveled off, and you’re in a situation where the doctors can make that reasonable prognosis, your case cannot be settled. In some cases it’s three months, in some cases, it can be three or four years.
Another factor that goes into it is the amenability of the other side in trying to settle it. I mean, if you’ve got a case where you feel it’s ready to settle, your injuries are known, and they’re qualified, and they’re quantified. The other side wants to play fair and pay a fair and reasonable amount. You can settle your case sooner. If they don’t, you’re in litigation, unless you want to accept pennies on the dollar of what the value of your case is. Once you’re in litigation, even if your injuries have plateaued, have leveled off, we’ve reached that stage where the doctors can make a reasonable prognosis. You’re usually gonna not be able to settle that case for a good six months to a year after filing the lawsuit. So, those are usually the guidelines and parameters of how long it will take to get your case resolved.
Interviewer: Will I have to testify in court?
Attorney Reuben J. Donig: You will only have to testify in court if your case actually goes to trial. Almost all cases get settled. So, in almost all cases, you will not have to testify in court. About half the cases that I get, if I get them soon enough, we’re able to get them solved before you even have to file a lawsuit. So there’s no testifying at all.
In the other half, a lawsuit needs to be filed either because we are unable to get to the bottom and make a reasonable prognosis of the person’s injuries by the two-year statute of limitations when the lawsuit has to be filed, or there’s just no ability to accommodate with the other side. If your case goes into litigation. Once it gets to the point where the other side’s hired an attorney, in almost every case, there are going to be some depositions taken and you will have to submit to a deposition. That is a form of testimony. It is testimony just like testifying in court is testimony, but a deposition is not done in court. It’s done in the lawyer’s office, and that’s where he asks the questions.
So if the question is, “Will you have to testify in court?” Ninety to ninety-five percent of the cases that I get, get settled without going to court. So, in those cases, you don’t have to testify, 5% of the time you will but the chances are about 50/50 that you may have to give a deposition.
Interviewer: In auto cases, can I recover if the other side does not have insurance?
Interviewee: Well, I’m very glad that you asked that question because the common misperception is that you can’t. And that is wrong. It is entirely wrong. I mean, let’s start with this. Can you recover if the other side doesn’t have insurance? They still owe you the money.
So, if you can get money out of them, you can still recover from them. But that’s usually not practical. That usually doesn’t happen. People who don’t have insurance are usually pretty broke, don’t have the ability to pay.
But this is where your uninsured motorist coverage comes in. If there was any message I’d get out to the general public that is pertaining to personal injury and the kind of work that I do, it is the incredible importance of having very good substantial amount of uninsured motorist coverage.
What that does, and it comes with your insurance policy when you have a car, it covers you, and it covers everyone in your household and any passenger or driver of your car, for all of the money that the other driver who caused your injuries would owe you, all the money that his insurance company or her insurance company ought to be paying you, but for the fact that he didn’t have insurance.
Your own insurance policy, under the uninsured and slash underinsured coverage, is a promise from your own insurance company that they will stand in the shoes of the other driver’s insurance company that he should have had, and they will pay you every nickel that he owed you up to the amount of coverage that you purchased.
I strongly encourage everyone to have a minimum of $250,000 per person of this kind of coverage. I realize that not everybody can afford it, but it isn’t that much more expensive than getting $100,000. And if I can tell you how many times I see people in my office, who’ve been injured by people, who didn’t have insurance, or didn’t have enough insurance. And I’ve been able to help those who had a sufficient uninsured motorist policy, and I’ve been unable to help all too many of people, of clients, potential clients, who’ve come in here and said, “Hey, I’ve got $15,000,” or “I’ve got $25,000 of uninsured motorist coverage.”
It’s just not adequate. It doesn’t help you. I hear people tell me all the time, “Oh, I’ve got full coverage.” It means nothing… full coverage. Doesn’t tell me how much. If there’s anything I could impart, whether you get me as an attorney when you need it, or get somebody else, get yourself a minimum of $250,000 worth of uninsured motorist coverage. It protects you. It protects anybody in your family who lives in your household. It protects your children if they’re away at school, but they generally live in your household when they’re not in school, and it protects every occupant of a car that is insured by your uninsured motorist policy. Thanks for listening.
Interviewer: How do I know if I even have a personal injury case?
Interviewee: Well, it’s fairly common sense. If you sustained an injury that you know was caused by a person or an event that just shouldn’t have happened and it’s not your fault and you’re pretty sure it’s somebody else’s, you have a personal injury case. I mean, that’s your gut sense and that is what you should believe. From there, you should talk to a well-recognized, well-respected, and perhaps well-recommended personal injury attorney, and the attorney will tell you what the pros and the cons and the risks and the benefits are of your case and whether you have a meritorious case. I would encourage you to make that call to the attorney fairly early on before you spend too much time talking to the at-fault party’s insurance company and you make some statements that implicate or they can twist around to deprive you of your rights or make your claim seem less meritorious than it otherwise is.
Interviewer: What should I bring with me for my meeting with my attorney?
Interviewee: Well, it’s a little different if it’s been auto case versus if it’s a premises liability or products liability case. Let’s start with if it’s an automobile accident case. The things that I typically like to get, from the outset, are my client’s own insurance policy, so I can determine what kind of benefits and coverages my client has that he may be able to obtain from his own insurance company. I like to see the police report if there has been one. I definitely wanna see all communication that has taken place between my client and any insurance company for the other side. Those are the three most important things.
It’s important for the client to be able to tell me all of the places where they’ve received any of their medical treatment, and perhaps some documentation of their income, and where they work, and what their income loss has been. If it’s not an automobile case, let’s say it’s a premises liability case, if at all possible, pictures are the most important evidence. If you can possibly have photographs showing what the condition was like at the time that you were injured so that we have a sense of whether it really looks like a bad or a dangerous condition that explains why you were injured. This is very often true in slip and fall cases because the substance that causes a slip and fall isn’t gonna be there for very long. You know, it usually gets cleaned up within 10 or 15 minutes. So, if there’s any way of having photographs to show what the condition was, that would be important.
Other premises liability, you know, the condition doesn’t change so much. Let’s say you have a bad sidewalk, or an uneven walking surface, or a bad handrail, and a stairway. But photographs to preserve the evidence are critical. If you have an injury, whether it’s a automobile or any other type of injury where the injury is visible, photographs that show the injury when the injury is fresh or very noticeable can be incredibly valuable and important and persuasive evidence.
Interviewer: What is negligence?
Interviewee: Well, there’s different kinds of negligence. There’s ordinary negligence. Ordinary negligence is the failure of a person to act within what we consider the reasonable standard of care. You can’t necessarily look it up in a book, or put it in a computer and get a black-and-white answer.
Ultimately, a jury decides whether someone behaved negligently. Although, in a lot of cases, it’s fairly clear-cut. I mean, running a red light and hitting a pedestrian… Well, running a red light is negligence, but hitting the rear end of a car that was stopped, and you had an opportunity to see that it was stopped, is negligence.
Failure to maintain your property in a reasonably safe condition is generally considered to be negligence. In a broader sense, its failure to act as the reasonably prudent person would act under the same circumstances. Now, there are other kinds of negligence, however, that don’t come readily to the layperson’s mind. There’s something called strict negligence or strict liability. And that may not be negligence in the ordinary sense.
But there are cases where an entity or a person can be considered to be strictly liable or strictly negligent, even though they themselves haven’t acted with fault. For example, if my employee is sent on an errand, and while driving a car, she causes an accident, she causes someone else to be injured, there’s a concept that I as the employer I’m strictly liable and strictly negligent, as you will, even though I might have no reason to know that she wasn’t going to drive carefully.
So, that’s another form of negligence. A parent who allows their child to drive a car knowing that that child doesn’t have the basic skills or is not fit to drive a car, that parent is acting in a negligent fashion. So, most of the time, ordinary negligence is failure to act as a reasonable person would in the same circumstances.
But there are other kinds of negligence that do come up from time to time as well.
In the medical field, there’s something called medical negligence or professional negligence. And, of course, the standard there isn’t what the reasonable person would have done. It’s what the standard of care is for a doctor doing that type of work in a particular community.
So, the standard in Boston or San Francisco might be different than let’s say somewhere in Ukiah. It’s just recognized without being prejudicial, that where you have the, you know, teaching universities, and University of California, or Harvard, or other great medical schools, the standard of medical care is going to be expected to be higher, this level of knowledge of the doctor may be expected to be higher.
So, it’s the community standard. If you fail to live up to the standard in that community to practice carefully, and do the procedures, and tests, and perform the procedures within the level of care of a similar doctor in that community, that’s a professional negligence. Same for lawyers or any other professionals. So, then you have that kind of negligence.
Interviewer: Does someone else’s negligence automatically mean I have a good case?
Interviewee: That’s a great question, and the answer is no. There are various components that go into having a legitimate claim or, as you asked, a good case. Someone else’s negligence usually is a major factor, but that standing by itself is not enough. So, there has to be a significant injury or something like an injury that results from the other person’s negligence. So, I often have people that come to my office and say, “You know, this guy, just without looking, he slammed into the back of my car and, you know, is completely negligent on his part. Do I have a good case?” And I said, “Well, what are your injuries?” “Well, my neck hurt me for a couple of days, but I could have been killed. Don’t I get something for the fact that I could have been killed?” And I have to say, “You know, look, you get something for your minor whiplash. But the fact that you could have been badly hurt or killed because he was negligent doesn’t give you right to be compensated for what could have been.”
So, the negligence is a component, but then there has to be a significant injury, and you have to be able to show that that injury was a result. Sometimes I get people coming in here and saying, “Well, you know, I had a pretty bad back before, but this made it worse. What am I entitled to?” Well, let’s start with the other person was negligent, they caused the accident. If your back was made worse, you are entitled to the degree…to be compensated for the degree to which your back was made worse, but not the entire back injury. And this is usually where you get a lot of argument from the other side because if you claim an injury, one of the things they love to argue about is that you had the injury before or you would…had it anyway. It’s not because of the accident. So, you have to prove the injury and you have to prove what’s called causation.
And even though you didn’t ask it, it kind of gives rise to the flip side of that question. What if I have a serious injury? Do I have a case? For example, it’s surprising how many people will come to me and say, “You know, I fell down the stairs at my friend’s house. Isn’t he liable?” “Well, I have bad injury. I broke my ankle, I had to have surgery,” whatever it is. I said, “Well, what was wrong with the stairs?” “Well, I don’t know, but isn’t he responsible if I fell down and hurt myself at his place?” So, the question in that one is, “I can’t prove the other person was negligent? Do I have a case?” You need both. You need to show the negligence, the failure to live up to a reasonable standard of care, and that that failure was the cause, or a major factor, a substantial factor is the legal term, in causing the injury or condition that you’re complaining about.
What if I can’t prove someone’s negligence caused my injury. Is there any other basis for personal injury liability besides negligence?
Interviewer: How do I choose the right personal injury attorney for my personal injury claim?
Reuben J. Doing, Esq.: In my opinion, the best way to choose a personal injury attorney is the time-honored, old-fashioned way, referral. Referral from someone else who either had an experience, and a good experience with a personal injury attorney, or a referral from a trusted friend who knows of a good personal injury attorney, or a doctor who’s treating you for your injuries, who may have had experience with that attorney in conjunction with treating a patient who is also being helped by that attorney.
Referral from another attorney that you know, for example, you may know an attorney who doesn’t do personal injury cases, but that attorney is likely to know of or have access to who the good personal injury attorneys are. I get referrals from other attorneys, I get referrals from clients, I get referrals from people that I know, I get referrals from doctors. I like to be…I’m happy to say that there’s actually a couple of judges who’ve seen my work in court who’ve actually given my name out. So, that I think is something that I can be quite proud of.
If you just cannot find an attorney through a referral source, nowadays I think a good way of doing it is by going online and seeing who you can find online through a Google search or something similar, through typing in the essential keywords, personal injury, premises liability or automobile attorney, and then the area where the accident happened, or where you’d like your attorney to be from or practice. But I’d say that the best way is word of mouth because that’s coming from somebody else who’s probably impartial. Once you’re doing it by going online or through the yellow pages, I mean, you’re just getting recommendations through that own attorney’s advertising.