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New Blog - Philadelphia Car Accident Lawyers

2011-04-08T14:25:00.001-04:00

We have a new blog about Philadelphia Car Accidents Lawyers. Please check it out. Thanks to all of our readers for all of your support.

Suing the police for a Miranda Violation?

2008-01-27T10:14:00.001-05:00

The Supreme Court decision in Miranda v. Arizona is a famous one, so what happens when the police violate Miranda by continuing to interrogate a suspect without informing him of his right to a lawyer or ignoring repeated requests for a lawyer? Generally, the only remedy is to suppress the evidence the police obtain through their illegal actions. But is there a lawsuit against the police?

Generally, courts have said no. In order to sue the police for violating your constitutional rights, you have to have a constitutional right at stake. Miranda rights are not themselves constitutional rights, but rather, they are 'prophylactics' - rules the police must follow in order to ensure that they do not violate your rights. I know this will strike some people as confusing, given that Miranda warnings have so become a part of our national consciousness. The fact is, the Fifth Amendment to the constitution provides that no person shall be compelled to be a witness against himself.

But I digress. There are a few cases out there where circumstances have been so severe that courts have allowed lawsuits to proceed. The first federal case was Cooper v. Dupnik, in the Court of Appeals for the Ninth Circuit. The police in that case prepared a plan of interrogation even before they had a suspect. The police decided that they were going to purposefully ignore the suspect's request for a lawyer and keep pressing him and interrogating him. The police decided to due this to prevent the suspect from using an insanity defense and hoped to keep him off the stand entirely.

The court held that the police action was so outrageous, so intentionally beyond the pale, so constitutionally evil, that a lawsuit could proceed.

In the end, lawsuits against the police for Miranda violations will be rare, but when the right set of facts comes up, they can be powerful weapons against intentional police misconduct.

When can insurance companies refuse to pay?

2008-01-23T19:18:00.001-05:00

Insurance companies often attempt to escape paying money to victims of accidents by alleging their own insured failed to properly report a claim. Although insurance companies will try anything to avoid compensating injured people fairly, this is one of the rare areas where Pennsylvania law runs against insurance companies and helps regular folks who have been hurt. The law states, in essence, that when an insurance company isn't properly put on notice, the company must show actual prejudice in order to avoid paying a claim. As long as the insurance company finds out about a lawsuit in enough time to defend it, they must pay.

I'm reminded of that wonderful rule by a brand new decision by the Supreme Court of Texas. In the case of PAJ v. Hanover Insurance Company, the high court accepted the so-called prejudice rule, just like in Pennsylvania, and held that insurance companies are not relieved of their obligation to pay by any small technicality - they must show prejudice, or a harm to their ability to defend the case.

After all those stories of Texas lawyers sleeping through jury trials in death penalty cases, I'm glad to see that there are some kick-ass plaintiffs lawyers still fighting hard for everyday folks.

How Juries Think In Accident Cases

2008-01-22T18:03:00.001-05:00

Apparently some of my clients are reading this blog religiously...welcome. As a result of the last entry on being committed to your case, I've received several phone calls today asking me about jury trials and how juries think in accident cases. Let me share with you two ideas that I have found important.

First, research has shown that juries award non-economic damages (pain and suffering) as a factor of economic damages (like medical bills and lost wages). In other words, if there are thirty thousand dollars in out of pocket, actual damages, then juries tend to think in terms of multiples of thirty thousand. My standard demand in a case with high economic damages is five times damages, or, in our example, one hundred and fifty thousand. Cases often settle, rather early in the litigation process, for three to four times actual damages. Then again, if the case involves a serious permanent injury like a scar or paralysis, or involves an operation, I think juries may tend to award significantly more.

Another interesting point is that some old trial lawyer wisdom has proved false. It used to be that trial advocacy experts would suggest putting the jury in the position of the injured client. That has proved, per very interesting research, to be a less successful technique. Apparently, jurors don't want to think of themselves as possibly being injured, and may tend to blame the victim for not somehow avoiding the accident. The better strategy is to focus on the outrageous conduct of the person who caused the accident, and cause the jury to share the injured person's anger and upset over that person's actions.

How Committed Are You To Your Case?

2008-01-21T20:45:00.001-05:00

One of the most frequently asked questions of personal injury attorneys is "How much is my case worth?" The answer depends upon factors that anyone could guess. How serious the injury is will be a primary consideration - a broken leg is clearly worth more than a stubbed toe. The economic damages are a large factor - medical bills, time missed from work, etc... Whether there is a permanent injury - paralysis or scarring, for example - is another factor.

But I have found that the single largest predictor of how valuable a case will be depends upon how committed my client is to seeing the case all the way through. Very often, a client wants to settle the case and wishes it was over. That's because it is a long and time-consuming process to move a lawsuit all the way through the court system to a jury trial. Clients have to stick with it and be tough and persistent. In the end, the fullest value of an injury case finds its expression in a panel of regular folks sitting in judgment evaluating the case amongst themselves. It is always a risk to let a jury decide - there is great uncertainty and you never know what a jury will do. But in the end, the most money lies in running the greatest risk.

Settling a case is not "giving up". Most cases do not go to trial - they settle. That's because both sides want to hedge risk. One side may pay more than they want to pay and the other side may take less, but both sides avoid the risk and the expense of a jury trial. In the end, the decision you make depends on your commitment to your goals and your willingness to stick to that commitment. Clients and lawyers should have frequent conversation about how the case is proceeding, the various steps in the process, and the overall goals of being fully and fairly compensated.

Loss of Consortium

2008-01-20T16:33:00.002-05:00

If you are injured in an accident that someone else causes, then clearly you have the right to sue that person. If you are married, then your spouse also has a cause of action historically called "loss of consortium". Loss of consortium was not an action under the common law, and it originated in the Eighteenth Century. Essentially, because the relationship between spouses was deemed worthy of legal protection, the spouse of an injured person now has his or her own right to sue the person that caused the injury.

Under Pennsylvania law, only those who are legally married or who have been together and hold themselves out to be legally married have this right of action. So, boyfriends and girlfriends, parents, siblings and children are all out - none of these folks can sue.

Stacking of Insurance Coverage

2008-01-17T16:34:00.001-05:00

In a decision that reversed prior law, the Pennsylvania Supreme Court has
once again sided with the insurance companies against regular folks. The
Sackett decision, issued on December 27, 2007, the court examined what
should happen when a family buys a new car to add to its existing
insurance policy. Under existing law, the addition of a vehicle to an
existing policy constituted the purchase of a new policy and that the
insurer was required to obtain a new waiver of stacking. That makes
sense, and it requires the insurance company to actually communicate with
its customers to determine what coverage limits they want.

Under this new interpretation of the law, Pennsylvanians will be presumed
to reject good coverage that allows them to stack benefits. The burden
has been shifted from the insurance industry onto the backs of regular
people. Of course, insurance defense lawyers are overjoyed with the
decision, and insurance companies will now earn even more profits from the
misery of the common man.

We at Levin & Zeiger remain dedicated to pursuing all possible avenues of recovery for our clients.

I Lost In Small Claims Court

2008-01-16T18:47:00.003-05:00

If you lost in small claims court, you have thirty days to appeal to the Court of Common Pleas. Your case will be sent to arbitration. After the panel of arbitrators makes a decision, you can again appeal for a trial before a judge or jury. There are costs involved for these appeals, and the costs escalate as the case moves on. There are many reasons to appeal - maybe you feel you didn't get a fair shake in small claims court, maybe you weren't prepared enough or a witness didn't show up, or maybe the small claims court judge had a bad day.

BUT, think carefully before you appeal. How much more of your money and time do you really want to invest in what, by definition, is a relatively small matter? If it is important enough to appeal, you may also consider retaining a lawyer. Many lawyers will agree to charge a small fee to simply be available to give advice, review your documents, and help you plan. Even if you can't afford or don't want to shell out for an attorney to represent you in court, you can still look around for some paid advice.

Good luck.

Who or What are Eggshell Plaintiffs?

2008-01-16T18:47:00.002-05:00

The eggshell rule is a famous phrase in personal injury law. Essentially, it refers to a situation where a person suffers an injury who has a pre-existing condition that makes him more susceptible to being hurt. For example, let's say I'm in a car accident and I have a medical condition that makes my bones very brittle. Well, a person without my condition might not have been hurt if she were in place, but because I have brittle bones, I broke a bunch of them when that car hit me. In this situation, I am what is known as an "eggshell plaintiff" and the person who hits me is responsible for all the damage done, all my broken bones, despite the fact that most other people in my place would not have been hurt. As the saying goes, you take your plaintiff as you find him.

Law students, in their first year of study, examine the case of Vosburg v. Putney, (80 Wis. 525 (1891)) in which one teenager kicked another teenager in the shins during class. In the end, the boy who was kicked had to have his leg amputated due to a pre-existing medical condition. After several appeals, the court found that the kicker was responsible for all the damage done. Hence, the eggshell rule.

How Long Do I Have To File An Insurance Claim?

2008-01-14T19:17:00.001-05:00

When you buy auto insurance in Pennsylvania, you have the option to purchase under-insured motorist coverage. If the person who hits you has a small policy (Pennsylvania only requires an insurance policy of fifteen thousand per person up to thirty thousand per accident - not very much) then you'll be glad you got under-insured motorist (UIM) coverage.

The question came up today of how long do you have to file a claim on your UIM policy if you are in an accident and there isn't enough insurance to pay for your pain and suffering. The short answer is that you have FOUR years under the statute of limitations. But there are other considerations at play. First of all, you must notify your insurance company that there is a claim before you settle the underlying case against the negligent person who hit you. That's because your insurance company might want to go after that person individually. If your insurance company gives you permission to settle, then you can go ahead. If not, then it gets a little more complicated.

NOBODY should ever try to handle an under-insured motorist claim him or herself. Despite the fact that you're dealing with your own company which has duties to treat you fairly, the fact is that insurance companies make their vast profits by doing whatever they can to avoid paying people who deserve it.

Minor's Compromise

2008-01-13T09:41:00.001-05:00

Let me add another word to the discussion about children's injuries from the last blog. To recap, after a settlement of a child's personal injury case, the lawyer files a Minor's Compromise with the court to get approval of the settlement. In the order that the lawyer prepares and the Judge signs, the lawyer takes back his or her costs and legal fees. The remainder of the money is placed in a special, restricted account for the child.

The money sits, untouched, and continues to grow with interest until the child reaches his or her eighteenth birthday. At that point, the child has access to the funds, which may be used for college, buying a first home, or any other purpose. The parents or guardian of the child do not control or direct the money and may not take it for themselves or even to help support the child's needs.

There is an exception to this. (There always seems to be an exception in the law!) If there is a pressing need, then an application may be made to the Judge to take out some or all of the money. One time, I had a case where a fifteen year old was in a car accident. After the case settled and I deposited the boy's money in a restricted minor's account, he got arrested for shoplifting. I worked out a deal with the prosecutor to pay a fine and have the charges dismissed, but neither the boy nor his mother had the money for the fine. I made an application to the Judge, who ultimately allowed us to take out the fine money from his restricted account. Generally, it takes a very serious issue like this to cause an exception.

Children's Injuries

2008-01-12T23:08:00.001-05:00

I received a question from the concerned mother of a seven year old who was hurt in a car accident. She wanted to know if she can sue for her child and how much an attorney should charge.

The answer is that the parents or guardian of a child can absolutely file a claim and a lawsuit against the wrongdoer. In Philadelphia, the complaint is generally filed in Orphan's Court. The suit proceeds essentially the same way as any other lawsuit. Lawyers' fees are capped by statute at Twenty Five Percent of the recovery. If a lawyer tries to charge more than that, he or she is not following the law.

No case on behalf of a minor can settle until a Judge of the Orphan's Court approves the settlement. The lawyer must file what is known as a minor's compromise - which is basically a written document setting out the nature of the case, important background about the child and his or her parents or guardians, and ultimately asking the Judge to sign an Order that the case may settle. No Judge will approve a settlement if the lawyer tries to take more than twenty five percent, which is a nice safeguard built-into the system.

What is the Learned Hand formula?

2008-01-09T20:11:00.001-05:00

Learned Hand was a famous and brilliant judge whose opinions are studied by every law student in the country. In a case called United States v. Carroll Towing Company, which involved the sinking of a barge, Judge Hand created what is known as the Learned Hand formula - a way to determine if a corporation has been negligent and is responsible for damage that has occurred.

The factors are these: What is the economic burden for avoiding a mishap; what is the expected probability of the mishap; and, what is the value of the loss that the mishap would cause. According to the formula, if the cost of avoiding a burden is less than the extent of the loss multiplied by the probability of that loss happening, then the corporation is negligent for not avoiding the loss.

For example, if there was a one percent chance of a wall falling down and breaking my leg (and let's say my leg is worth one hundred thousand dollars), then the company that owns the wall should spend up to one thousand dollars to fix the wall to prevent its collapse.

Personally, I think the Learned Hand formula is ridiculous. I don't want a wall falling on me and breaking my leg and neither does anyone else. If there's a one percent chance of that wall falling down, it needs to fixed or torn down, no matter the cost.

Letters Of Protection

2008-01-08T22:37:00.001-05:00

Picking up on the last post, sometimes people are hurt but have no source of money or benefits to pay for medical care. If someone is injured by another person's negligence, and that negligent person has assets to recover, then a lawyer can partner up with a doctor to make sure his or her client gets necessary medical treatment.

When a doctor agrees to treat a patient based on a lawyer's promise to pay medical fees after the successful conclusion of the case, this is called a Letter of Protection, or LOP.

Medical Documentation of Injury

2008-01-07T15:36:00.001-05:00

The last post concerned whether an expert medical witness was needed for a personal injury trial. I received a question in response asking whether it was necessary to have medical documentation to prove an injury. To that question, I think the answer has to be yes. If you were injured in an accident to any real degree, then why wouldn't you have gotten medical care? If you didn't get any medical care, then quite frankly, the case simply isn't worth very much. Few lawyers would ever get involved.

Then again, when someone is hurt but has no insurance, it is always possible to file in, say, small claims court. (What we call the People's Court.) There, even without medical backup, if you are truly in pain and the truth of your testimony convinces the Judge, you could certainly walk away with something. In the end, though, if you are hurting due to an accident, get yourself to a lawyer. Lawyers tend to have friendly doctors who will agree to treat people in need in exchange for a letter of protection from a lawyer - that is a lawyer's letter promising to pay the medical fees out of the ultimate verdict or settlement of the case.

Social Security Disability

2008-01-06T00:03:00.001-05:00

I received a question today asking if a man could qualify for disability benefits through social security if he was beaten by police officers. The man was a truck driver but due to a disgusting attack by the police, he was left with a partially paralyzed hand.

The answer is yes, absolutely, he can qualify for benefits. The source of an injury or disability is not what counts. What counts is if you can no longer work because of a medical condition.

Do I need a medical expert?

2008-01-05T14:44:00.001-05:00

I have a client - a very nice lady who has become a friend just as much as a client - who asked me the other day if we absolutely had to have a medical expert to testify in her case. She asked because there is a limited amount of insurance (and the person who rear-ended her has no assets to speak of), and she knows that if I spend five grand to hire a good expert to testify, she ultimately has to pay for it out of the jury verdict.

Normally, I would always want a doctor to testify. It lends credibility to the case and is a good way to explain to the jury how serious and how permanent a person's injuries may be. But when I sat down and thought about it, my client was right. In her case, with such limited insurance money, it didn't make sense (necessarily) to hire a doctor. There is no requirement under the law at all. So, we decided that we would call her to the stand and also call a family member and friend to the stand, and that was that. I think it will work out just fine and save her some money in the end.

The moral of the story? Clients should never be afraid and never stop asking questions. Attorneys have set ways of doing things, and sometime we don't spend enough time to examine every facet of every case. You are the client - it is your case - be involved!

Subrogation Interests...Money Money Money

2008-01-02T18:33:00.000-05:00

Questions about subrogation come up in personal injury cases all the time. Subrogation means taking the place of another with respect to a claim or lawful right. Here's the most common example in my practice: My client is hit by another driver who isn't watching where he/she is going and some of my client's medical expenses are paid by her health insurance company. Well, my client has a right to sue the person who hit her for pain and suffering as well as economic damages, like lost wages. Her insurance company has a right of subrogation, that is, the company also has a right to sue the person who hit my client to recover the money they laid out.

What most good lawyers do in order to put a little extra money in their client's pockets is talk to the health insurance company and agree to get their money for them if they'll give a small discount back to the client. If they are owed five thousand and agree to accept four, then I've just helped my client to another stack of money for very little additional work on my part. Subrogation interests are an essential part of the personal injury practice, and injured people should talk to their lawyers to understand how this process works.

Exceptions To Limited Tort?

2007-12-31T16:18:00.001-05:00

I received more emails about my last post than all previous posts combined. (Six, so far, but heck, this is a new blog, right?) So everyone wants to know, are there exceptions to the rule that an injured person cannot sue for pain and suffering from a car accident? As it turns out, there are four exceptions to the law.

1. The person was hit by a drunk driver, who is either convicted of drunk driving or is accepted into the ARD diversionary program. (Or its Philadelphia equivalent, DDIPP.)

2. The person is hit by a car that is registered out of state.

3. The person is hit while in a commercial vehicle, like a taxi cab.

4. The injury suffered is very serious or results in permanent disfigurement.

This last exception is a subject of much litigation. It's a very complex subject with much caselaw going both ways. An attorney needs to carefully examine all of the facts and circumstances before offering an opinion.

The moral of the story doesn't change, however. My advice to everyone in Pennsylvania remains the same - don't fall for the limited tort option. It is a trick by the insurance companies to prevent you from obtaining justice if you should be the victim of a car accident. Spend the extra few dollars and get full tort for full protection.

What Is Limited Tort?

2007-12-30T15:02:00.001-05:00

In Pennsylvania, you have the option to buy "full tort" or "limited tort" car insurance. The limited tort option is less expensive, but ultimately, it's never a good idea. When you opt to save a little money on your car insurance, you give up your right to sue someone who injures you in an accident. More precisely, you give up the right to sue for non-economic damages, like pain and suffering. Time and time again I have had to explain to folks sitting across from me in my conference room that they won't collect any money for the months of pain, sleepless nights, and difficulties they've suffered in their lives due to someone else's negligence. All because they chose limited tort. So, the moral of the story is make sure you change to full tort right away.

2007-12-25T10:40:00.000-05:00

Merry Christmas To All!

Why is my case in arbitration?

2007-12-21T05:32:00.001-05:00

I was hit by a man who went through a red light and ended up with a slipped disk in my back. My lawyer told me my lawsuit was scheduled for an arbitration hearing. I wanted a jury trial, but my lawyer said we have to do arbitration first. Why?

The Philadelphia Court System is very crowded. One way that the system clears clutter and moves cases to resolution is by forcing cases to arbitration first. Any case where the damages are fifty thousand dollars or less is sent to arbitration about eight months after suit is filed. At the arbitration, three lawyers will hear the evidence and make a decision. I myself often sit as an official Arbitrator for the Court of Common Pleas.

You have the absolute right (just like the other side) to reject the arbitration panel's decision and move forward to a trial in front of a judge or jury. Many cases settle at or just after arbitration, which saves time and money for all the parties.

So, it doesn't seem to me that your lawyer has made any legal errors - it's more of a lack of good communication. This is something that happens all the time with lawyers and their clients. Don't be afraid or intimidated about calling up your lawyer and forcing him or her to give you clear answers to your questions. We're all busy dealing with our caseloads, but we're not good lawyers if we don't take the time to listen and respond patiently and clearly to our clients. Good luck with your case.

No Insurance - What Can I Do?

2007-12-17T17:10:00.001-05:00

"I was a passenger in a friend's car. It turns out he didn't have any insurance. We got rear-ended by yet another person without insurance. I don't have any broken bones or anything, but I was flat on my back for three days. It's now a couple of weeks later, and I still am not feeling much better."

The Pennsylvania Financial Responsibility Assigned Claims Plan was set up for just your sort of situation. They provide medical benefits up to five thousand dollars and also provide pain and suffering benefits up to ten thousand dollars. Dealing with the Plan is notoriously difficult, and most of the time a lawsuit is required in order to get them to pay fairly.

Police Brutality Questions

2007-12-16T11:33:00.001-05:00

We've gotten a few civil rights questions lately, so I'm going to combine my answers and talk a bit about police brutality in Philadelphia. The fact is, there are an unfortunately large number of cases where Philadelphia police officers use excessive and completely unnecessary force on citizens - often resulting in serious soft-tissue injuries and even broken bones. Often, after the police finish beating someone up, they decide to charge him (or her) with felony assault on a police officer. They do this to cover themselves, that is, to provide a ready-made explanation for injuries sustained by the person they are arresting.

Clients often come to me, therefore, with both criminal and civil rights issues. I always say that the first priority is to get healthy by obtaining appropriate medical care. After that, we have to be concerned primarily with the criminal case and potential loss of liberty. Once the criminal case is resolved in the client's favor, it is time to sue the police.

I have had success in suing the police in federal court - alleging constitutional violations. But I have also had success suing in state court, alleging the plain old intentional tort of assault. Just a few weeks ago we had a better-than-expected verdict in state court against an off-duty police officer who punched a young man for essentially no reason at all.

The message is this: Regular everyday people who have been wrongfully assaulted by the police can fight back in court. Police brutality cases can be complex and difficult to litigate. Even with righteous cases of clear-cut abuses, I have personally lost at trial. The odds are definitely stacked against the people and in favor of the police, but this is no reason not to continue to fight for the civil rights of Philadelphians. We will continue to press the City to address police brutality and we will continue to file lawsuits against the police. Individuals need to come forward and be brave - report police abuse and help us clean up the City of Brotherly Love.

Food Poisoning At Supermarket

2007-12-15T10:28:00.001-05:00

"I bought some frozen packaged food at my local supermarket and became ill from it. The supermarket says that the manufacturer was at fault and not them. What do I do?"

Even if the supermarket was not negligent, they are still responsible for making you ill. The Pennsylvania version of the Uniform Commercial Code dictates that the sale of a product is accompanied by warranties of merchantability and fitness. That's legal jargon for the idea that if a supermarket sells you food, they are promising you that the food is fit for the purpose of eating it. The law says that when that warranty is breached, when the promise is broken, that the supermarket is responsible for your damage - including "incidental and consequential" damages - like your medical bills and your pain and suffering.

If you filed a suit against the supermarket, then they might bring the manufacturer into the case as well, but that doesn't effect your rights against the supermarket. Never let the denials of the wrongdoer prevent you from making a full recovery.

What is PIP?

2007-12-13T16:28:00.001-05:00

PIP is short for Personal Injury Protection. Every car insurance policy in Pennsylvania is required to have at least Five Thousand Dollars per person in medical payment coverage. This money pays for medical treatment of anyone injured in the car - no matter whose fault the accident. Each insurance company has a form to apply for benefits that must be filled out, notarized, and returned before they will pay.