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Month: June 2014

Car Accidents | Typical Parties to a Lawsuit

Unsmiling lawyer looking at camera crossed arms in the court room
Unsmiling lawyer looking at camera crossed arms in the courtroom

A “party” when used in the context of a lawsuit, is the individual or incorporeal person involved in the action at issue. A party can be a defendant, or a plaintiff, or even a real party in interest. This includes such individuals as a parent acting as a Guardian ad Litem on defending or suing on behalf of a minor child driver who caused or was hurt in a wreck. Suing the right parties seems pretty straightforward. But this is not always the case.

What About the Legal Doctrines?

In fact, due to legal doctrines like respondeat superior, and outside forces caused by third parties who were not directly involved in the crash, many a successful defense has been achieved by pointing to an empty defendant’s chair. What does all this mean? Let me give you an example.

What if I am driving a car, and a motorcyclist flies into my lane after being launched into the air. Let’s say I hit the motorcycle rider head on? I may still get sued even though he flew into my lane. Will the rider need to sue someone to get paid? Maybe.

But an initial investigation may uncover that a pothole launched the biker on a poorly maintained road. This means that the city, or county, or even the state may be liable. But guess what? If the period for the victim to sue the government has expired, case dismissed!

Of course, this is simply one of the many examples of a missing party to a lawsuit. Suing me was the wrong move, and the court will not appreciate you vexatiously suing the wrong person. This is no way to start off your legal journey.


Who are the Typical Parties to Car Accident Lawsuits?:

  • Delivery and other drivers, and their employers. A driver could be under orders from their boss, such as a delivery truck. If the accident was caused during the course and scope of employment, the employer is on the hook under a “master and servant” theory.
  • People who negligently entrusted their vehicle to someone they knew was drunk, or a bad driver.
  • Regular old passenger car operator of the vehicle in which you were a passenger. You heard right. Even though another party may have hit the car you were in, the driver of your car may have been partially negligent under a pure comparative negligence theory. This is why it is crucial for each passenger and the driver to have their attorney. That way they could avoid a conflict of interest with a universal representative.
  • Shipping and trucking companies are also potential parties.
  • Government agencies like CalTrans and the City of Los Angeles road crews, who negligently maintained public roads and highways.
  • Vehicle manufacturing companies and repair shops who failed to properly repair or fix the vehicle before releasing it into the stream of commerce.
  • Your insurance company, and in cases of insurance bad faith, when they refuse to pay out on a claim for which you had first party coverage and leave you exposed to personal risk.

Suing should be a last resort. But if a representative has to file a lawsuit, you need to take no prisoners in pursuing windfall like results for yourself. If you’re forced to sue, it is best to have a trained advocate take away the inconveniences and dive in head first to manage your claims. Understanding who to sue is no less important than understanding how to sue. Getting a tough representative is crucial to a successful case.

Car Accidents | Filing a Lawsuit

lawsuit form or document in business office
lawsuit form or document in the business office

It is relatively straightforward actually to file a lawsuit in a car crash case. In some straightforward situations, some accident victims will elect to go in propria persona (also known as in pro-per depending upon fed or state jurisdiction.). So this means that the victim usually represents him or herself in the negotiation process.

Ultimately he or she may sue the at fault party(ies) either in small claims court (learn more) or in some other venue of competent jurisdiction. Knowing how to file a lawsuit is more of a procedural aspect.  Understanding who to sue and not be malicious is more of a substantive issue. We will cover the latter in a companion article to this one.


 

What are The Various Steps in Suing?

So many people want to cut to the chase and sue the person who crashed into the victim’s car or ran them over.  But courts appreciate tenderness in the handling of potential suits. In the interest of efficient administration of justice and judicial economy, courts favor mitigation and attempt to resolve before seeking judicial involvement.

As attorneys, once we have exhausted all reasonable means of recovery without court, and at the conclusion of our investigation, it is in your best interest to file a lawsuit.

But as noted below, there may be multiple defendants. There could be parties such as the employer of the person who was driving the vehicle during working hours. Other defendants can include the manufacturer of a poorly made vehicle. Obviously, the more big pockets, the greater the chances of a pre-trial resolution and adequate recovery.

  • How Do I Determine Limited or Unlimited Jurisdiction and Statute of Limitations Compliance?

If you believe you have named all the proper parties, and are still within the legal statutory time the time to file a government claim, or regular civil lawsuit (e.g., still within the Statute of Limitations), you can go for it. You still will need to determine whether to file in the limited or unlimited jurisdiction. Typically if you think all the bills and suffering in your case exceed $25,000, you file in “unlimited.”

The opposition may still bring a Walker Motion (See e.g., Walker v. Superior Court (1991) 53 Cal.3d 257), and try and have the case bounced back to “limited jurisdiction” if they think you cannot meet the threshold burden of damages more than the minimum amount. If the case has a value of less than $10,000, the law mandates that small claims court be the court where the case is filed.

The benefits of limited jurisdiction are many, assuming you don’t have a big injury.  The biggest benefits are streamlined discovery, and trial by declaration as far as experts go. This means trial costs are much less. The biggest downside is that the max you can recover in gross is $25,000. Once you have resolved the other jurisdictional issues like the subject matter, and in personam questions, the next step is preparing and then filing the lawsuit in court.

  • How Do I Prepare the Court Summons and Complaint?

For a non-represented party, it is recommended that a Judicial Council approved “Form Complaint – Motor Vehicle Accident” be used. These more easily defeats a demurrer or motion to strike (discussed in more detail in another pending article.) The idea is to fill in the facts, and check the “Motor Vehicle” box.

The complaint is ready for filing. There are companion documents in Los Angeles like a Civil Case Cover Sheet and local cover sheets. You need to check into the state, and local rules discussed more below. You don’t want the papers to get bounced. Now you need to go to the courthouse, stand in line, and pay the filing fees.

Currently, the filing fee is in the $400.00 range. You will need to have copies of the face pages of each document that you file, so you can serve file-stamped copies of each upon the defendant. Now you have 30 or so days to serve the complaint. And then you will have a status conference if it is not served.

And if proof of service is filed, the dunning conference is ordering you to show good cause why it was not served, is called off. But let’s not get ahead of ourselves, because you are not done yet.

  • Preparation and Filing of the Mandatory Companion Documents.

The next step in filing a car accident lawsuit is to prepare the documents that are required by the local rules, as well as the Civil Case Cover Sheet, and if in LA, the LASC Civil Case Cover Sheet Addendum. The Cover Sheet requires you to identify where the accident occurred, or where the defendant resides. This makes sure you file the case in the right courthouse. So many plaintiffs over the years have had their case bounced on the last day for filing. And this was due to them failing to determine the correct courthouse to file the original complaint.

The LA Superior Court Website has a zip code identifier, to help you locate the proper court to file suit in. In Orange County, all civil lawsuits are handled in downtown Santa Ana Court, which makes that effort easier for a newbie plaintiff. In any event, look online and make sure there are no additional forms for filing for that particular courthouse. And make sure all these documents are submitted when you file the lawsuit. Then you still need to serve and then file the proof of service once served.

  • What is Service of The Lawsuit?

At the outset, this is sort of a hat tip for new lawyers and self-representatives. Some companies specialize in serving documents and who can hire you out a process server. Many of these document retrieval and delivery services will already know what needs to be filed and served for each local courthouse.  And this will often guide an unrepresented party through a checklist of sorts.

Also, they have certainly assisted busy lawyers who may have overlooked some needed local document that was not earmarked for filing. The last thing anyone wants is a rejected document and more fees to re-attempt a filing.

In any event, once you have filed the complaint, gotten stamped copies of face sheets, etc., copies of everything are sent out for service. Since you are a party in interest, you are deemed hostile, or biased, and thus, unless a small claims action, you need to have a disinterested third party.

Or you need an attorney to serve the documents upon the adversary under penalty of perjury. As discussed, there is a limited time window to do so. So if the defendant is evading process, you may need to make several trips to and from a court to explain to the judge what good faith efforts were done.

What is a Motion for Default?

At some point, you may need to make a motion to have a judgment entered on your behalf. This will be once you have published notice of the lawsuit in a magazine, for example. That affords the defendant every notice and opportunity required to appear and answer for their alleged tortious activity.

This is called a Motion for Default. And it is very hard to get entered, even for an attorney. This is because public policy favors allowing a party every opportunity to defend themselves in person.

Assuming arguendo, the defendant has been properly served, the proof of service is entered at the courthouse either in person or by mail. When sending copies of documents to the court, it is important to include cover sheets of each document to be filed.

Also include a self-addressed, stamped envelope so you have proof that the court has been provided with everything it needs. This is especially helpful should the court later misplace or lose something, which has been known to happen. In small claims cases, as shown above, this process is streamlined.

Is Filing a Car Accident Lawsuit Easy?

Filing a car accident lawsuit is no walk in the park.  It is recommended that non represented parties seek the help of an experienced paralegal at a minimum. In most cases, going it alone means leaving money on the table and losing valuable time.

In almost every case, it is smarter to have an attorney represent you and try and settle. Studies show that people with a lawyer tend to fare better when facing the legal system. Want to learn more about car accident lawsuits? Feel free to give us a call at (213) 596-9642.

E-Discovery Duty to Preserve

Don't Tell Me Show Me Concept
Don’t Tell Me Show Me Concept

There is a duty to preserve electronically stored information (ESI). ESI includes the data, documents, and materials that are potentially reasonable evidence. Even if it is not admissible directly, it could lead to other evidence that is admissible. This means the electronically stored information must not be destroyed, altered or concealed. This is because it can be potentially relevant evidence that will potentially be a part of litigation.

This means that counsel must act reasonably in the preservation of ESI. The duty extends to many classes of people. These classes include the client, parents, attorneys, partners, employees, officers, directors, divisions, subdivisions, contractors, accountants, auditors, and subsidiaries.

What this means for the attorney is it will be crucial to initiate a legal hold with the client as soon as possible when litigation is anticipated. In PI cases, it is critical to send out a “preservation of evidence” letter at the outset to all interested parties. Beyond that, the legal hold is important for both the counsel for the plaintiff or the defendant.

The attorney for the plaintiff should send a letter to any of the potential clients or their lawyers. It should be called a notice of the filing of a lawsuit. And once should consider obtaining the issue of a preservation order from the court.

The preservation of evidence should not be left up to the client or their IT department. Metadata can be changed, and the copying of files is another way that can alter these electronic documents. Variations in the electronically stored information can be significant in proving the authenticity or integrity of the stored data.

Great importance should be placed on the precaution of ESI.  There have been sanctions for failure to preserve. It can result in spoliation penalties. It can also result in “doomsday sanctions.” In the event there is a failure to protect the electronically stored data, it can be devastating to the client.

This is true whether it is done through carelessness or intentionally. The attorney involved that did not ensure the preservation order or litigation hold was properly administered may be held responsible by the court. He or she can even be reported to the State Bar Association.


What the Law Requires

The law requires each party to preserve all potentially discover able electronically saved information. It must be maintained. These laws carry duties imposed that apply to each party and any third parties.

  • The ESI must not be lost due to alteration or deletion or otherwise modified that may be reasonable potential discovery evidence. This includes file fragments or remnants of any information that has been deleted or modified.
  • Procedures must be enacted to protect electronically stored information including any related metadata from data compression, deletion, overwriting or rotation.
  • ESI must be protected from procedures such as disk defragmentation, reformatting and other types of optimization routines.
  • Data storage devices must not be disposed of or media that may be replaced during upgrading.
  • All application programs and utility program copies must be preserved that may be used in accessing, processing, reading, copying or displaying of any discover able electronically stored information.

Dealing with a client, there can be forensic copies made by a professional of any potential electronically stored evidence, rather than confiscating USB drives, iPods, laptops or other equipment to allow them to continue business. The other thing that is important is to maintain a proper chain of custody record for the ESI.

This applies in particular to loose and removable items like Blackberry’s. Logs of everything that is done should be kept as step by step and when there is discover responsive ESI shortly before trial. Then it may be possible to show the judge the lateness was due to an innocent error, rather than being intentional.


ESI and Metadata

Metadata can be critical, which is data about other data. This was not an issue with paper documents since the data would have been in the document, such as the date and author. The creation of electronically stored information has changed the way discovery looked at, and while useful, potentially damaging information can be created. Metadata issues can include:

  • Tracking is potentially damaging changes made to documents.
  • Knowing if there have been modifications when the document was created, accessed, the numbers of revisions and the total amount of time for editing.
  • The ability to follow the internet route of email by viewing the full header.
  • Ability to see who was blind copied on an email (BCC).
  • Knowledge of comments and secret formulas in spreadsheets.

Metadata has a type of digital fingerprint that can change any part of a document, including other metadata. The largest benefit of metadata is the advantage of doing more effective searches. Some of the metadata can be accessed by going to properties in MS Word Documents and emails in the, to and from fields. This takes the knowledge that can be learned and once learned is an advantage.


The one general rule about ESI is that less information cannot be given a document to the other side without an agreement with that side. This means that when receiving ESI unless a claim has become waived all metadata should also be received and then it should be reciprocated by the receiving side, which must then do the same.

The one problem that exists is unless you request the metadata; it is possible to only receive the documents. So unless requesting to receive the electronically stored information in paper form you are in trouble. The way that can be ensured of receiving the metadata is to specify that the file format is a raw native file format.  This would also include the metadata.

 

Common Lawyer Marketing Failures

Sign you need a lawyer
Get a lawyer sign

Often what depends upon legal professionals being able to afford to run a solo or a full fledged firm, depends upon a steady flow of new clients. Under the old model, a fresh law grad would get a job at a firm, learn the ropes, put out his shingle after that, or partner up and start a firm. In those cases, a paycheck was often solely based upon referral advertising, such as old clients.

A small percentage of injury attorneys have had great success in bringing on new clients by being a guest speaker on the legal seminar circuit such as CAOC or CAALA (bother consumer attorney organizations that give out MCLE credits to attendees of conventions, such as those held in Las Vegas.) Other old school techniques include the Yellow Pages and perhaps attorney advertising mailers with the proper disclaimer, to gain the attention of potential new clients.

These methods can still be a successful way to reach people. Speaking at the CAALA Convention is still an excellent way for fellow less experienced or funded attorneys to size up trial attorneys with vast experience, to whom they may wish to refer cases. However, this may not always lead to a reliable stream of regular new clients, aka “customers.”

Solely relying upon these tested, but no less old methods to attract business can be a huge mistake with diminishing returns in this age of electronic media. Many older lawyers are still fearful that more aggressive commercial advertising is an ethical quagmire that can open them up to State Bar disciplinary proceedings.  Other newer agents are usually not too street savvy, or business oriented, having spent most of their lives in school and college, learning from people who have no clue about what it takes to run a business.

Frankly, many law professors and teachers, in general, are hostile to business as a whole. So new lawyers in particular usually have a cookie cutter ideal of passing the bar and working at a big firm. The problem is that big firms are falling by the wayside, in some respects, due to over-regulation, taxation, the high costs and perils of complying with employee regulations and still being able to make a profit.

When a forward-looking legal counselor is not content to depend on the old bare bones methods of attracting potential clients, there are ways to revise the way that advertising is done, with at least seven different methods to get on track with the leaner and potentially brighter future for those who think outside the box.


Customer Targeting

One of the biggest problems with advertising by any business is assuring that you are targeting the right customers for the company or in this case, the law firm client. To do this, a few questions will need to be answered to advertise in the right format that will attract clients. The first is when do these people go to find information? What websites and distribution would these individuals be expected to read? When answering these questions, the focus should then be placed in these areas to reach the person who is looking for the services of a personal injury attorney. The main point is to get the message out there and have it seen by the right individuals.


Promotional Messages

The usual promotion for attorneys is a combination of a picture of a legal advocate, their practice areas, and a slogan. This is done in block type advertising or a full page ad, but this isn’t enough to provide all the necessary information about a law firm. It is wiser not to attempt to give all the needed information in this type of advertising. It is better to use the commercial to promote free and informative information that can be found at the legal advocate’s website or in the office. Then in this educational data or information, the full story of the law firm can be told the reader.


Prospects

The key issue with potential clients is that they are not too side-tracked with all the articles the law firm has ever submitted on their website or distribution site and all the history of the law firm. This is a person seeking specific information involving their specific issues and what options there are legal. This person wants to understand. It is the attorney’s job to have materials that will address the type of legal problem the individual has, and that deals with the concerns and frustrations they may be going through.

This is the kind of information that will get better results addressing practice areas, as opposed to purely promoting the law firm or yourself. Yes, you must point out what makes you different and suited as a business, but the main thrust needs to be addressing the actual data that the injured person in need of help, for example.  So this must strike as the initial impact when a Potential New Client, or “PNC,” clicks on your website.

Positioning

It is important to show your position on what area of law that is practiced by the law firm or lawyer. The person looking to hire an attorney does not want just general information; they want to know this is an accomplished lawyer that practices in the area of the law that they are seeking and in their location. For any advertising campaign to be effective for the law firm prospects is the main focus.


Lawyer Costs and Efforts

It is advisable for attorneys to monitor their costs; lowering costs will not have the result expected. But there is always competition and someone else ready to outdo your efforts. In most cases, bringing down advertising expenses damages legitimacy with current clients. They could believe they may have overpaid for services for a less prestigious attorney, and it will attract potential customers that are not the caliber of claims that you would be comfortable representing.

These are known as deal customers, who are shopping for the least expensive attorney. It is better to focus on quality and to provide clients with the legal image they want in representation.  This is what will be reflected in their acknowledgment that expert legal advocates earn what they charge. A lot of this is about optics.

If your attorney drives a beat-up old Volvo, or a High-end Mercedes, who makes more money? What would a decision maker at an insurance company think when making an offer which just parked next to the attorney at the JAMS or JDAMS mediation to settle the quadriplegia case?

What would your neighbor think if they saw your lawyer getting out or into one of those cars? I mean to take it to an extreme if your lawyer wore a nice suit, or tattered jeans, which one are you more likely to hire? Common sense dictates that you have the appearance of being a winner and wreak of success.


Advertising Choice Makers

Advertising decisions are made in some law firms by a group choice or through social events, and this is not the most successful way to determine how advertising will be accomplished. The most successful way to focus on advertising is to make one person in charge of all decisions; this will allow a specific focus, rather than decisions made in several directions that will not have the power of a targeted advertising campaign.

Democracies do not work in general. This is why you need to choose a republican form of leadership within your organization to make these hard choices, and keep the ball rolling! If they fail, get rid of them and learn this stuff yourself!


Priority in Advertising

Law firms or legal counselors often center on their specialized areas of the law, rather than promoting their law firm. This omits to show potential customers. This should be tempered with the information that the client is looking for, along with knowing there are quality legal advocates. Law firms that are advertising are vying for new business. To bring in a steady stream of customers then, it is essential to show how daily operations are accomplished.

Using the right format and focus in advertising can be entirely successful and rewarding. But when done wrong it can result in a low-quality client base.

Advertising has gone to different heights than just the traditional Yellow Page advertising. And the law firm that wants to reach the largest percentage of potential clients will find using other methods of advertising rewarding when done right. Stay ethical, and read all of the attorney advertising guidelines here on the California State Bar website. Last but not least, continue your legal education and stay focused on the end goal.

Basic Legal Terms for Injury Victims

The fighting Griffin of Ehline. Doing justice for the realm.

When pursuing a personal injury claim, there are some legal terms that you should be familiar with before consulting an attorney. This to have knowledge about the legal process when considering bringing a lawsuit. Without this understanding of the judicial proceedings, it may be difficult to make the right decisions for your particular case.

The most important terms in personal injury law that should be understood are the basics. So that way, when consulting a lawyer, there is some familiarization with personal injury law.

These conditions include:

  • Personal Injury: This is a term that is used and a type of law that involved a personal injury to an individual, which is caused by negligence by another person, company, property owner or manager, state or government agency or manufacturer. This is physical harm and can include mental or emotional consequences.
  • Tort Law: This is the legislation under which personal injury claims fall and is heard in civil court, rather than a criminal court. Tort law protects the rights of people who have sustained injuries, physical or mental that are caused by someone else or entity actions or recklessness.
  • Civil Lawsuit: Personal injury law is in the category of civil law. So that means when a lawsuit gets filed by the injured party against another person or entity, the suit will be brought in civil court. Trials heard in civil court holds no risk of the defendant being sentenced to a jail term if they lose the case. But it will result in loss of finances paid to the plaintiff when they are successful.
  • Contingency Fees: This involves the way that a personal injury attorney will charge for legal fees. It is done with an agreement between the client and attorney for an amount to be paid to the law firm for legal fees when the case is successful, and compensation is recovered. The fees are taken out of the financial settlement and in the event the claim or lawsuit is not successful, the client will not be responsible for paying attorney fees. Though there may be other fees, the client will be required to pay for experts and other costs.
  • Deposition: When the plaintiff retains an attorney, they will interview witnesses and information obtained is termed a statement. Another type of deposition will include attorneys for both sides, who will ask questions. Present are the plaintiff and defendant, as well as witnesses and the court reporter. This will help in building the case or proving the validity of the claim or defense.
  • Pain and Suffering: This is often a part of a personal injury claim and is the physical and mental stress resulting from the harm that has been sustained. As a part of a personal injury lawsuit, which is a tort action. And that will be included in the recovery of compensation for medical expenses, lost wages, and other damages.
  • Compensation Damages: This is the financial recovery awarded by the court in a lawsuit or as a settlement in a claim against an insurance company. It gets filed after suffering harm due to negligence by another person or party. This is financial compensation to cover the past and future medical expenses, pain and suffering, loss of wages or loss of temporary or permanent income. And it also proffers other damages directly related to the accident.

Sources:

Ehline Legal Dictionary.

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Personal Injury Attorneys, APLC

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