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Archive for February, 2012

Judging from what I see on TV, there are probably not many outside the legal system who know for sure.  Some of you may be surprised to hear that we don’t typically get involved in police chases, secret meetings with government agents, or fist fights with other attorneys, but it’s true!

Even when a PI attorney is not down at the courthouse actually putting on a trial, everything he or she does back at the office is still geared toward getting ready for trial.  The vast majority of a PI attorney’s time is spent finding, reviewing, organizing, and memorizing evidence.  This means hours of studying binders full of medical records; interviewing witnesses on the phone or in person; visiting accident scenes; taking pictures and videos; and reviewing expert reports.  Much of this occurs before a lawsuit is even filed.

But just having a lot of good evidence is not enough.  The PI attorney must also have a good case theory.  Depending on the case, developing a good theory could involve hours of legal research and briefing.  Sometimes the lawyer has to advance alternative legal theories which are at odds with each other.  Like gathering evidence, legal research is a task that starts before a lawsuit is filed.

Once a PI attorney feels he or she has enough evidence to support at least one strong case theory, it is usually time to start private negotiations with the insurance company for the person or business that committed the wrong.  A demand letter is written, and all supporting evidence is attached.  This triggers a series of phone calls between the attorney and insurance adjuster.

Even though there is no judge or jury listening on the phone calls, it is the anticipated reaction of a judge or jury to the evidence that determines the value of a personal injury case.  In other words, if the attorney and adjuster both believe that a judge or jury would side with the injured person, the case will settle for a higher value.  The PI attorney’s skills at this stage involve persuading the adjuster to agree with his or her interpretation of the evidence.

If negotiations fail, a PI attorney often must file a lawsuit.  Once suit is filed, there are court-imposed deadlines for exchanging information with the opposing party.  A formal process called “discovery” starts, and the lawyer must prepare to ask and answer questions both in written form (“interrogatories) and orally (“deposition”).  The PI attorney must also begin researching, writing, and arguing motions to get rulings from the court on what law will apply in the case and what evidence will be given to the jury.

When it is closer to the trial date, the PI attorney prepares opening and closing arguments, comes up with a strategy for jury selection, schedules witnesses, prepares documents to be admitted as evidence, and plans what questions to ask each witness.  At this stage, the attorney’s attention is focused just on this trial, and all other cases are put aside unless there is an extreme emergency.

After the trial, when the verdict comes in, the PI attorney resumes work on other cases, and the cycle begin again.  For the most part, a PI attorney’s life is filled with studying, writing, and persuading—and while it is not always as glamorous as what we see on the big screen, it can still have dramatic results.  Just ask our clients!

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Who We Sue and Why

February 23, 2012 by

John Durkin tried a motor vehicle case over the last couple of weeks and ended up with a $147,000+ verdict. I got to talk to the jury afterwards, and one of the jurors had a good question. He saw that we had sued a man and the man’s employer. He asked why we sued both, and why the insurance company was not listed anywhere.

When we file a personal injury lawsuit, we are required to include anyone who had a part in causing the injury, or who might be obligated to pay for damages. This is simply a matter of fairness—we want the people who did the wrong to be responsible for the damages.

In John’s case, our client had been hit from behind while legally stopped for traffic on the highway. So naturally we had to sue the man who hit our client, because the man caused the collision.

But there is a rule in Washington law that says if you hurt someone while you are working, your employer is responsible for your actions. In John’s case, the man who caused the collision was on the job, so we had to include the man’s employer in the lawsuit. The employer was also the owner of the vehicle the man was driving and carried the insurance for the vehicle. Both the man and his employer were ultimately held responsible for our client’s injuries and damages.

But why didn’t we sue the insurance company? Simply put, because the insurance company did not cause the collision. There are times when we do sue insurance companies, but those are instances where the insurance company has breached its insurance contract or acted in bad faith. In those cases, the insurance company’s direct action caused damage, so it is appropriate to include them in the lawsuit. In a motor vehicle case, the insurance company usually has not done anything to directly cause our client’s injuries, so the insurance company is not named in the lawsuit.

Another reason the insurance company does not get named in a motor vehicle lawsuit is because evidence of insurance is not admissible in court. The reason for this is we don’t want a judicial system that produces different results based on how rich or poor a defendant may be. Because our society strongly believes in the equality of every citizen, we want all people to take responsibility for their actions, no matter what income or assets they may have.

Just because the insurance company is not named as a party does not mean they are not involved in the lawsuit. The insurance company chooses and pays for the defense attorney who represents the at-fault driver at trial. The defense attorney reports back to the insurance adjuster and the adjuster keeps close tabs on the case. Ultimately, the insurance company pays the verdict because it has a contractual obligation to its insured to do so. In the end, the money comes from the right place and gets paid according to the court’s orders.

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Ladenburg McKasy Durkin, Inc. P.S.
6602 19th Street West, Tacoma, WA 98466
253-777-1900

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