Discussing Issues Effecting Personal Injury Victims in Atlanta, Georgia

In my line of work you get to become an expert on insurance coverage.  To legally drive in Georgia you need at least $25,000 in liability insurance.  There is always the chance the driver who hurt you did not have insurance (keep reading to see how to protect yourself).  Now the Wall Street Journal is reporting there is almost a 30% increase in the number of people driving without insurance.  A previous study by the Insurance Research Council found about 15% of the drivers on our roads were uninsured. That number is now going up.  For every percentage point unemployment goes up, the number of uninsured drivers goes up 1/2 a point.  This number is further compounded by auto insurance rates increasing almost 4% from last year.

So what can you do about it?  I have written a whole article on understanding insurance for car accidents over on my website but here is the abbreviated version.  You need to purchase as much underinsured or uninsured motorist coverage as possible.  This insurance protects you from other drivers who are either uninsured or underinsured.  Another way to really boost your coverage is to purchase an umbrella policy for your house and tack-on uninsured motorist coverage.  Many of my clients report this is the cheaper way to get at lots of insurance coverage.

The New York Times reported today that New Hampshire is going to halt all civil jury trials for one month early next year to save money on its judicial system budget.  While this may be a good thing for New Hampshire, it is also a good thing for insurance companies and a bad thing for personal injury victims.  Insurance companies already try to delay settlement and paying on a case.  Why?  Because the longer they keep the money the more money they can make on investments and interest (even in today’s markets?).  With the economy now in a full-blown recession, personal injury victims are usually the ones who need the money the most.  Some cannot work and are looking to a trial for closure in their case.  By pushing back jury trials, I am sure some personal injury plaintiff’s will reconsider settlement for less than their case is worth rather than waiting indefinitely to present their case to a jury.

Here in Georgia we are already starting to see the budget shortfalls hit the judicial system.  Just this past August the Council for Superior Court Judges suspended the use of senior judges in assisting with heavy case loads in the metro Atlanta courts.  Senior judges are retired judges who would serve as needed to resolve backlogged trial calendars.

Now is all the more reason to never agree to take your case off a trial calendar.  My policy is to give the other side all the extensions they ask for save one - trial.  Once a case is on a trial calendar I will not agree to postpone it.  That is my client’s day in court and it shall not be delayed.  Especially with cases in Atlanta taking anywhere from 1.5 - 3 years to see a jury.

I just got my December Georgia Trial Reporter.  It is a monthly report with summaries of cases that have just settled or went to verdict.  It is an invaluable resource in determining what my client’s personal injury cases are worth as well as keeping tabs on defense lawyers.  This month’s report shows the average verdict and settlement for a “closed head” injury to a child to be $219,903 for all of Georgia and $347,875 for cases in Fulton County.

There are a couple of things worth noting here.  Fulton (and DeKalb) have the reputation for being pro personal injury victim.  That is why the best Atlanta personal injury attorneys will turn over every stone of evidence trying to find a defendant he/she can name to get the case into one of these counties.

The other observation is that these amounts, in my humble opinion, are low.  As with all statistics, the devil is in the details.  The report uses both settlements and verdicts, with “settlements” being the operative word.  Many catastrophic cases, especially in car accidents, are what as known as policy limits cases.  Usually there is not enough insurance to pay the full value of the claim so the plaintiff has no choice but to take the policy limits.  This will drive down the reported numbers above.  Also, it is unclear how the reporting company is defining closed head injury.  Such injuries can be anything from a hematoma (blood on the brain) which may self-resolve in a couple of weeks to permanent traumatic injuries which can change a person’s personality, cause them to lose their adult thinking abilities, and/or physically impair them.

While these kinds of reports are helpful, it is always best to rely on your attorney’s experience to guide you on valuing your case.

I just received this month’s Georgia Trial Reporter.  This is a monthly report that publishes settlement and jury verdicts from around Georgia.  It is what attorneys use to research the value of your case.  Your attorney, if they have a subscription to the report, can go online and query for facts similar to yours to figure out how much your case is worth.

This month’s publication reports the average value (settlement & verdicts) of a case involving a lumbar (i.e. lower back) disc injury with surgery is $115,000.  The average value of a cervical (neck) disc injury with surgery is $125,000.  Keep in mind these are only averages.  Most of the cases we see that involve back surgery usually also involve a herniated disc that is pushing on a nerve.  So why the $10,000 difference in the two types of injuries?  First, a ten thousand dollar difference represents less than a 10% gap.  If I had to guess what is behind the numbers I would have to say that many people (i.e. jurors) suffer from lower back pain so they tend to diminish the value of such a problem because they have all felt the pain themselves.  Versus most of us instinctively protect our necks which would lead jurors to take such an injury more seriously, not that every spinal injury is not serious.

A recent New York Times article reported Chrysler is rolling out wi-fi internet access in its cars.  So now people are going to be able to look at their laptops while driving?  This got me thinking about one of my biggest rants in my car accident cases.  The number of confessions just does not add up.

It has already been well established people drive while reading and writing email and text messages.  One study showed 19% of drivers text message while driving.  We also know that 85% of all cell phone customers talk while driving.  The National Highway Safety & Transit Administration estimates at any given second there are 500,000 people talking while driving.  Now here comes the scary part.  driving while talking on a cell phone is equivalent in safety to someone driving DUI with a .08.  (Want some more interesting cell phone stats… a 20 year driving on the phone has the reaction time of a 70 year old, reaction time slows by 18%, and the list goes on and on).

So everyone by now should know driving on the phone is less safe.  And the numbers seem to indicate almost 1 in 5 drivers are distracted by electronic devices while driving.  So why do my cases show a far less percentage of defendants on the cell phone while driving?  Even I know this number can’t be right.  Only a personal injury attorney like myself sits at an intersection counting the number of people who drive by while on the phone.  The only way to get to the bottom of this is to subpoena the other driver’s cell phone records.  You would be surprised how many attorneys fail to do this one little thing that can dramatically change the value of a case.  I never trust the other driver when they say they were not on the phone.  Always have your attorney get their billing records and see if a call was made around the time of the accident.  You also need to get your case to an attorney quickly, preferably in the first six months after your accident, because cell phone carriers may destroy their billing records after a certain time period and you lose that crucial evidence.

U.S. health officials are now saying more than 200 people, with more than 1/4 of those in Georgia (53 reported cases), have become “sick” after taking the dietary supplement Total Body Formula and Total Body Mega Formula.  I think “sick” is an understatement.  Massive amounts of selenium and chromium are causing people to lose their fingernails, lose their hair, to have joint pain, vomiting, and even kidney and liver failure from toxicity.  I did a quick search on Google news and there are only two newspaper articles that have attempted to notify the public of the product and its voluntary recall.  Thankfully for Georgia residents, the AJC ran a story just this past week on the problem.  The FDA is saying most symptoms will go away over time and after people stop taking the supplement.  If you do a Google search on the product, you will find out that plaintiff’s attorneys are leading the way in getting the notification out to the public.  This is yet another example how, despite big-business and insurance trying to say otherwise, the personal injury system works to protect the consumer.

The New York Times ran an article on Friday discussing a soon-to-be-released study on civil lawsuits and how settlement amounts compared to verdict amounts.  The study’s author concluded “settling is better than going to trial” because his research indicated plaintiffs receive on average $43,000 less at trial than what was offered at mediation/settlement.  The author further stated that “most of the time, one of the parties has made some kind of miscalculation or mistake.” The real story in this article is that the defense loses $1.1 million on average when it dismisses settlement and goes to trial.  That is a huge difference from $43,000.

In the words made famous by Mark Twain, “There are three kinds of lies:  lies, damned lies, and statistics.”  The article does not state (NOTE: I have not read the full study, just the article) the number of plaintiffs who miscalculated versus the number of defendants.  One of the study’s co-authors suggest the underlying numbers would indicate the defense, and not the plaintiffs, miscalculate more often.  The co-author said human behavior and responses to risk dictate that “people are more averse to taking a risk when they are expecting to gain something and more willing to take a risk when they have something to lose.”  Tranlsated, plaintiffs are more averse to going to trial because they are expecting some amount of money while the defense is willing to take the risk of trial.  I agree with this one conclusion.  As a former defense attorney, I can tell you several things are at play.  One, there is an argument that defense attorneys are motivated to take a case to trial because the get to run up their bills.  Defense attorneys make their money billing by the hour whereas plaintiffs’ attorneys usually work on contingency.  Second, at the end of the day defense attorneys do not lose any money in their pockets by taking the trial risk because the insurance company pays out the verdict and they simply get their hourly bills paid. Plaintiffs attorneys, however, share the risk with our clients because our fee is a percentage of the money we obtain for our clients.  In my personal opinion, this puts our financial interests directly in line with our clients.  They are the one and the same.

Another interesting between-the-lines conclusion of the study is the huge difference between $43,000 and $1.1 million.  Is this direct evidence of how unreasonable defense attorneys are when evaluating cases?  I know from experience that defense attorneys can sometimes drink the kool-aid and convince themselves they can get a defense verdict on technicalities so they discount a case too much.  Because a lot of defense attorneys find it hard to emotionally get behind a client who has hurt someone, some hang on to the technicalities to get themselves emotionally worked up in thinking they are doing the right thing.

In closing, there are two points that I want you to walk away with from this discussion.  First, there is always value in accepting a known, guaranteed amount of a settlement versus going to trial.  You just never know what 12 strangers are going to do with your case.  The harder issue you and hour attorney must discuss is what is the discount value of taking a settlement and avoiding the risk of trial.  It is worth something, just how much?  The second point, and it is a big point to be made, is that you and your attorney must communicate about what your case is worth, the strengths and weaknesses of your case, and anything else that effects the value of your cases, including what kind of witness you make.  I do this with my clients by writing them a lengthy evaluation report letter.  This report sets out the entire case in a very candid way and includes what I think the case is worth and our chances of receiving more at trial.  The defense attorneys write such reports for their insurance clients so why shouldn’t you?

P.S. - If you are interested in learning about how a Georgia car accident case is handled and evaluated, download my free 33-page Georgia Car Accident Guide.  It walks you through how a case is handled from its inception through trial as well as teaching you what things affect the value of your case and how your should case should be managed.  If you want to check out another practicing trial attorney’s take on this study, I encourage you to hop and over check out Ron Miller’s comments on the Maryland Injury Lawyer Blog.

Trucking accident attorneys always look for (at the very minimum) the following causes for trucking accidents:

• Aggressive driving
• Excessive speed
• Driver fatigue
• Unsafe trucks or equipment
• Truck driver drug or alcohol abuse

Today I am just going to talk about truck driver fatigue and how new technology will hopefully deter this easily preventable but frequently occurring cause of trucking accidents.

Federal regulations generally require truck drivers not drive more than 11 consecutive hours.  They then must take 10 hours “off-duty.”  Over the course of a week truck drivers normally cannot drive more than 60 hours total in 7 consecutive days.  Drivers are required to keep log books recording the number of hours they drove and were off-duty.  Experienced trucking accident attorneys will investigate the logs, and ask the driver under oath about his/her rest or sleep immediately prior to the accident as well as his/her long-term sleep and driving activity.  Until recently an attorney wold for the most part have to rely on the driver telling the truth to these questions and in their log book.  Even a former administrator at NHTSA said, “Drivers keep one set of books for law enforcement and one for their pay.”  Truck drivers using only their first name also say the “cook the books” and everybody cheats on their driving hours.  The reason is truck drivers are normally paid by the mile.  So they make more money when you break it down into an hourly wage if they can drive a load straight through in 12 hours instead of having to split it out into two days.

Now you should begin to understand why trucking accident attorneys should always scrutinize the log books.  One way to do this is to verify driving and rest hours by getting the fuel receipts and shipping paperwork to try and recreate a driver’s time line using arrival times and fuel consumption.  But even this is not an exact science.

But now there is an exact science in the form of onboard electronic driver logs.  This technology does away with the old paper log books and puts touch screen computer in the truck cockpit.  The device is hooked up to the truck’s GPS device and matches the driving hours the driver is punching in with his/her truck’s location and operation.  This makes it virtually impossible for truck driver’s to lie about their driving and resting hours.  Not surprisingly, the trucking industry is fighting against having these systems installed.  Three of the four largest trucking companies currently do not use them.