The driver was a 22-year-old young woman.  She had no insurance, and worked as a waitress.  She was allegedly using her cell phone at the time of the accident.

I had to decline the case.

The reason?  The parents of the 15-year-old did not purchase Uninsured Motorist (UM) coverage under their own auto policy.

In Washington State, auto insurance companies have to offer UM coverage unless it is rejected in writing by the insured.

The parents had rejected UM coverage five years ago as a way to save money.  That decision proved tragic, and in the end deprived their son with the opportunity to obtain full compensation for his medical treatment and injuries.

Relatively speaking, the cost of UM coverage is very cheap.  Right now I pay about $150.00 per year for $1 Million in UM coverage on two separate vehicles.

Statistically, most accidents are caused by uninsured and underinsured motorists.  These are individuals that are more likely to be irresponsible on our roadways.  Most of us have to protect ourselves from irresponsible drivers.  Adequate UM coverage is one way to do this.

The mother of that 15-year-old boy told me that she and her husband will likely have to declare bankruptcy because they won’t be able to pay for their son’s medical bills.  Understandably, she and her husband are angry that this could happen.  Through no fault of their own, they may be ruined financially.

My message to parents is to carry adequate auto coverage, including coverage for uninsured motorists.  This coverage can prevent financial ruin if one of your family members becomes the victim of an accident.

There were a total of 30 weekly Scholar Athletes chosen during the 2009-10 school year.  The banquet was held to honor each athlete and their families, and to choose the male and female Scholar Athlete of the Year winners.

If the number and quality of comments we received from parents, coaches, and the scholar athletes was any guide, then the banquet was a resounding success.  Everyone was very impressed with the quality of the event, as well as the speakers involved.

Bill Wixey, anchorman for Q13 Fox News attended the event.  He gave a very inspirational speech and asked the scholar athletes to find what they love to do and stay with it.

Seattle Seahawk Kelly Jennings also attended.  Mr. Jennings gave a very moving and powerful speech.  He recounted how he continually worked to realize his dream of obtaining a college education (he ultimately received two college degrees) and to make the pros.  Mr. Jennings urged the scholar athletes to keep working hard, even in the face of setbacks, which will undoubtedly arise.  He ended his talk with a very moving and powerful poem that has helped guide him and provide inspiration in his own life.

The event ended with the announcement of the winners for the Scholar Athlete of the Year.  This year’s winners were Hunter Colegrove of Bonney Lake High School and Alexis Court of Liberty High School.  Each of them were more than worthy of receiving this award, which included a $1,000 scholarship each to the college of their choice.

To all of the scholar athletes, congratulations on a fabulous year.  Each of you were picked to recognize your accomplishments and leadership.  All of you deserve it.

And thanks also goes to the Davis Law Group staff who helped with the planning and logistics of the banquet.  All of  you did a fabulous job.  Congrats!

Resolving lien claims can be difficult because of the many complex laws that apply to them, and because holders of lien claims are often slow to respond in writing to questions about their liens. Unfortunately, the law does not always say that lienholders are required to respond to your lawyer within a specific time.  Sometimes it takes months to get an appropriate answer. This delay prevents prompt payments of settlement funds to clients like you, and can be frustrating for you and your lawyer. Unfortunately, this time delay may be unavoidable depending on the type of lien and the identity of the lien holder.  Your law firm should work hard to obtain this information and resolve these issues, so that the settlement can be distributed and you can resolve your case.

One example of a complex lien claim that may take some time to resolve is a Medicaid or Medicare lien.  If Medicaid or Medicare has paid for some of your treatment they are entitled to reimbursement of those payments. These federal programs will then have a lien on your settlement. Your lawyer will probably have to hold back a part of your settlement equal to the debt until you can negotiate an agreement and pay the agency. 

Medicare and Medicaid are notoriously slow in responding to information about their liens, so delay is likely.  In some cases the delay may be several months or more.  Again, your settlement funds cannot be distributed until you reach an agreement and pay Medicare or Medicaid to resolve its lien.  This is because your attorney may be personally liable for the lien if it is not resolved. 

When multiple insurers or debts are involved in your claim, this can become quite complex. For example, you might run into complicated lien problems when you have your own private insurance (including a settlement from a personal injury case) but are using Medicare as a secondary insurer. When it is not certain whether Medicare is a primary or secondary insurer, Medicare will make a conditional payment. If it is later determined that some other party was responsible for that payment, Medicare is entitled to a refund from that party, or from you or the health care provider, if one of you was paid by that party. The federal government may place a lien on your property to recover this type of conditional payment.

In addition to Medicare and Medicaid, there may be liens asserted by a state governmental agency.  In Washington, the Department of Labor & Industries (DLI) and the Department of Social & Health Services (DSHS) are common lien holders in a personal injury case.  These departments often provide medical benefits for many people who have been injured in an accident.  When this happens, these departments are granted a statutory lien on your personal injury recovery.  This means that DLI and/or DSHS must be paid back out of your settlement.  However, your lawyer will often be able to get the lien amount reduced to account for your attorney fees and costs incurred in pursuing your claim. 

Another problematic lien is the ERISA lien, which stands for “The Employee Retirement Income Security Act of 1974.”  ERISA is a federal law that gives special rights to employers with respect to health care plans.  Typically the ERISA lien is much more onerous than your typical state law created lien.  For instance, there are certain equitable defenses available to you when dealing with a state-law created health plan lien.  This means that your attorney may be able to compromise or completely eliminate the state law lien, and thereby maximize your settlement recovery.  Not so with the ERISA lien.  Recent federal and Supreme Court decisions have taken many of these state law defenses away. 

Unfortunately, if your ERISA health plan has paid for your medical treatment then you may have to pay back the ERISA plan 100% out of your recovery.  You should consult with your lawyer about the ERISA lien because there still may be certain defenses available so that the lien amount can be reduced or avoided entirely.

The laws governing government lien claims are complicated so it is often best to consult with a lawyer if you have a claim where the government has paid for some or all of your medical treatment and/or income loss.  This is especially true if ERISA applies to your claim.

Either side may request a deposition at any time, but the request is most likely to come after you and your attorney have responded to interrogatories (written questions) and requests for production of documents.  If your deposition is requested, it is very important that you prepare for this with your attorney. 

Your conduct at the deposition can influence the value assigned to the case and also affect the likelihood of whether the case will settle before trial. A deposition is a little like an oral version of interrogatories.

Many of our clients at Davis Law Group are nervous before depositions, but that is quite common especially if it is your first deposition.  Not to worry however.  Your lawyer will be there to observe throughout the deposition and can object to inappropriate questions or ask for breaks if you need them. This is important, because it is essential for you to stay calm and professional during a deposition.

The deposition is the first opportunity for the other side to evaluate you in person, so you should appear neat and as confident as possible. You should usually dress neatly and conservative so you make a good impression.

Your lawyer (or his or her staff) should prepare you ahead of time for the questions in your deposition. You may be asked to attend a meeting where you review all of the written information your lawyer has, as well as any responses you gave to interrogatories. It is especially important to make sure that your testimony is truthful and consistent with these interrogatory responses, because the lawyer for the defendant will probably question you closely about any inconsistencies. This process should also help refresh your memory about the details of your injuries, your treatment and your recovery.

At your deposition, you will probably start by reviewing the information in your written interrogatory responses. The deposition is an opportunity for the other side’s lawyer to clarify or have you explain those written answers, and to obtain additional information. As we said, it is important to make sure that your testimony is truthful and consistent with your interrogatory responses, so the other lawyer does not spy a seeming inconsistency between your oral testimony and your written testimony.

Your answers in a deposition should be based on your own personal knowledge; do not guess. If you do not know or remember the answer to a question, you should say so. Many people feel embarrassed to admit they do not know something or had a memory lapse, but these things are quite common.  No person is expected to remember every little detail about past events.  It is only human. But when you are under oath, it is important to be as straightforward as possible.

As with the written discovery, you may feel that some of the questions are invasive or do not directly relate to your accident. However, unless your lawyer objects or tells you not to respond, you should answer every question in the most honest way you can. The court rules actually give wide latitude to the lawyer on what questions can be asked, or what areas can be covered.  If some of the questions upset you, you can usually take a break during your deposition testimony, although you may have to respond to any unanswered questions first. If you would like a break, you can simply tell your lawyer. If the break is allowed, you will be permitted to get up, walk around, get a drink of water or just clear your head.

Your deposition is a very good opportunity for you to answer the defense attorney’s questions succintly and without interruption.  The deposition is one of the more important legal proceedings in your case.  So please make sure you prepare for it and ask your lawyer any questions to help you feel more at ease.

In Washington, you will typically file your case in the county where your accident happened, or in the county where one or both of the parties involved lives.  If you are filing suit against a business or corporation, then the venue can occur in the county where the company does business.  Your lawyer can explain to you how these rules affect your case.

A lawsuit formally starts when you file a written complaint with the court. This complaint describes the facts of the case, your injuries and why the person you are suing is responsible for your injuries. It then separately lists each “cause of action,” which is a reason for suing. 

The complaint ends with a request for financial compensation for the injuries you have listed. This can be quite detailed, depending on your state’s requirements, but it always contains enough information to inform the other parties why they are being sued.

Along with the complaint, your lawyer will also file a summons, a document that must be personally served on the defendants. The summons explains how the defendant should respond to the complaint and gives a deadline to do so. As a courtesy, your lawyer may send a copy of the complaint to the defendant’s insurance company.

After the complaint is filed, your lawyer may have to specify whether you prefer a jury trial or a “bench trial.”  A bench trial is one that is conducted before a judge and not a jury.  The judge decides the case.  Most of the time the defendant’s lawyer will request a jury.  The conventional wisdom is that a jury may be more conservative on damages then compared with a judge.  A jury will also be more influenced by matters outside the law, whereas a judge is trained to disregard irrelevant evidence.

You and your lawyer should have agreed on this ahead of time. In a jury trial, a group of randomly selected citizens from the area decides the case while the judge acts as a referee and resolves legal issues involved in the case. By contrast, a bench trial involves a judge deciding the entire case (issues of fact and legal issues). Bench trials are less common than jury trials. If your lawyer recommends one, he or she should be able to explain why.

A quicker settlement may be accomplished if there is little or no question that the other driver is at fault for causing the accident and your injuries. It may also happen when liability is still in question, but your injuries are very severe.

During the pre-litigation process, your lawyer verifies that the at-fault person has insurance coverage, and then determines whether your own insurance policy provides coverage for the accident. Your lawyer will also investigate the facts surrounding the accident, reviewing the police report, interviewing the witnesses and inspecting the scene of the accident in order to get the best possible information on how the accident occurred and who is at fault. The lawyer will also review your current and prior medical records in an effort to understand your claim and to prove that your injuries were caused by the accident and not some other preexisting medical condition.

After thoroughly investigating your claim, your lawyer may then begin to determine the value of the claim. There is no magic formula when it comes to evaluating personal injury claims.  Generally speaking, a case is worth the amount of damages inflicted on the person who has been injured.  These damages may be easy to calculate, like past and future medical charges, lost earnings, lost earning capacity, and property loss.  But the law also states that the injured person has the right to recover compensation for other “intangible” harms.  It is these “intangible” harms that are more difficult to calculate.  Such harms may include those subjective harms that the person has experienced from the injury, including pain, agony, disability, loss of enjoyment, inconvenience, and mental anguish. 

The intangible harms suffered by the accident victim are purely subjective, difficult to determine and often vary among the people (or jurors) who are deciding the case.  Ultimately, the value of a case is determined by the jury (or a judge if no jury demand has been filed).  Both sides – your attorney and the insurance company or defense lawyer — are continually trying to evaluate how a jury might see the case and how much money a jury might award.  Then each side will assign a value or a value range, and try to negotiate a settlement close or above each side’s own range.

Often times it may take many months or years before the value of a case can be adequately assessed.  One reason for this is because of the slow progress of the person’s recovery or rehabilitation.  Another reason is due to the complexity of the injury or condition which may cause a significant delay in a firm diagnosis by the treating physician.  In many instances a case should not be settled or resolved until the person obtains maximum improvement following the accident, and this can also contribute to the delay of achieving a reasonable resolution of the case.

In most cases the value of a claim is driven primarily by the extent and severity of the person’s injuries.  Other important factors to consider include the type, extent and frequency of past medical treatment and the need for future treatment.  I also rely on several other factors to help me determine the case value.  These factors may include, but are not limited to, the client’s likeability as a witness and his or her credibility, the facts of the accident giving rise to the case, the extent and permanency of the injuries, the client’s age, whether the client missed time from work, the identities of the at-fault insurance company and its defense attorney, specific legal or evidentiary issues involved in the case, the county or venue where the case has been or will be filed, and the amount of settlements and verdicts for similar types of cases that I and other lawyers have handled in the past.

You should note that no two cases are alike, even if the accident and/or injuries involved are nearly identical.  This means that the evaluation of two cases which appear to be similar on the surface may actually produce widely different evaluations due to the other factors involved in the case.  Evaluating personal injury cases takes a lot of knowledge, experience and some hard-earned intuition.  Usually a lawyer that has experience trying cases in front of a jury develops a good understanding on how to evaluate the worth of any given claim.  Without these traits you may be at a serious disadvantage when negotiating with the insurance adjustor.  And unless you are in the business of evaluating and settling personal injury cases for a living, you should usually look to an experienced personal injury attorney for guidance.

The students at Chiawana High School listened to Reggie Shaw from Utah.  Mr. Shaw a 19-year-old college student was working as a house painter.  He was driving to work in an SUV.  Approaching him, in a Saturn sedan, was James Furaro, 38, and his passenger, Keith P. O’Dell, 50. They were rocket scientists commuting to their work at ATK Launch Systems.

Mr. Shaw crossed the center line on the two-way road, and clipped the Saturn. The Saturn lost control and spun across the road where it was hit by another vehicle that was towing a trailer.  The two scientists were killed instantly.

The police talked to a witness who observed Shaw swerving within his lane just prior to the collision.  The investigating officer watched Shaw after the accident take out his phone and start texting.  The officer was skeptical, and decided to subpoena Shaw’s cell phone records.  The records showed that Shaw had sent 11 text messages to his girlfriend in the 30 minutes before the crash.  The last one occurred just one minute before Shaw called 911.  The police determined that the last text message was the one which caused Shaw to cross into the other lane.

In the end Shaw’s conscious got the better of him.  He later pled guilty to two counts of negligent homicide.  Shaw now tours his home state of Utah and other states to talk about the dangers of texting while driving.

I applaud Mr. Shaw’s willingness to devote his time and attention to teaching other young people about what can happen while using your cell phone and driving.  It’s a shame that he had to take the lives of two innocent people to realize what I and many other lawyers have known for years: texting while driving a motor vehicle is extremely dangerous. 

I hope the students in Paco, Washington were moved by Mr. Shaw’s story.  I have to believe that hearing from someone who has actually caused the death of two other people due to texting and driving will cause most of these young people to re-think whether to use a cell phone while operating a motor vehicle.

For more information about Shaw’s story and the dangers of texting while driving, please read this story by NPR.

Myth #1:         All personal injury lawyers have basically the same training and experience.

Myth #2:         Any lawyer that graduates from law school can try a personal injury case in court.

Myth #3:         All personal injury lawyers go to trial at some point.

Myth #4:         A personal injury lawyer that never goes to trial can get just as good settlements as one that does go to trial.

Myth #5:         A lawyer who is good at “DUI” cases or “real estate law” will also be good at personal injury cases.

Myth #6:         The personal injury lawyer who advertises on T.V. must be a great lawyer and super successful or else he couldn’t afford the expensive commercial.

Myth #7:         The personal injury lawyer who takes out big glossy ads in the Yellow Pages is usually the best lawyer to choose.

Myth #8:         A “lawyer referral” service is always a good way to find the right lawyer for your case.

Myth #9:         The bar association determines whether a lawyer can advertise that he is a “personal injury specialist.”

Myth #10:       The personal injury lawyer who advertises will actually be the lawyer who handles your case.

Remember, all lawyers are not the same.  The same is true for personal injury lawyers.  Make sure you do your homework when it comes to choosing a lawyer.  The decision you make can have good or bad consequences in your personal injury case.

The first thing to consider is that lawyers, much like doctors, often concentrate their practices in a specific area of the law. If you need hip replacement surgery, you probably want to see an orthopedic surgeon, not a cardiologist. You may also want that surgeon to routinely perform hip surgery on other patients instead of doing the procedure a few times per year. 

Similarly, if you are in an accident, you will not want to hire a lawyer who focuses on divorce or real estate or business law. Similarly, you probably don’t want a lawyer who just does a few personal injury cases a month or in a given year along with other types of cases. 

Although a non-specialist lawyer may be able to help you, he or she will likely not have the same experience and skills that a lawyer who specializes in personal injury law day in and day out. No one person can do it all.  The same is true for lawyers who specialize in a particular practice area. 

A lawyer who specializes in personal injury law will likely understand the individual nuances in the legal, procedural and evidentiary areas that come with representing accident victims.  And believe me, there are many “nuances” in the field of personal injury law.  They may deal with questions concerning insurance coverage, subrogation claims, medical expertise, proving the injury in question, proving the amount of damages, procedural traps, and a host of many other issues that may arise in the typical personal injury claim.

The personal injury specialist will also better understand and implement the successful strategies, arguments, and tactics that can maximize the value of your personal injury claim, because they work with these issues every day.

At Davis Law Group, we find that most of our clients come to us after a recommendation from someone they know who has used us in the past. For this reason, you may want to begin the search by talking to family and friends. Ask if anyone can refer you to a personal injury lawyer who helped them get good results, or who they have heard good things about.

You can also do your own research to find a lawyer.  The internet is a good place to start.  Some very reputable personal injury lawyers provide substantial information on personal injury claims and the law on their websites.  Sometimes the lawyer’s successful cases are reported in the press and may show up on news feeds or in newspaper stories.  Sometimes the lawyer may be featured on news stations or other programs as a credible source the media turns to for information about personal injury matters.  If that’s true, that lawyer may be a good choice.

More and more lawyers are using video on the internet.  This may be a good source to check out a lawyer.  Look for a lawyer who actually offers helpful information about the type of case or injury you may have.  Stay away from those lawyers who only brag how good they are, or how successful they have been in the past.  Although success is certainly important for obvious reasons, the lawyer’s video should do more than just brag, it should actually help the potential client understand his or her rights or some potential problem that often arises in personal injury cases.

There are some lawyers who advertise heavily on TV and in the phone book.  Although this may be a good place to start your search, I would not rely entirely on a lawyer’s TV or yellow page ad.  Sometimes the lawyer who advertises heavily on TV or in the phone book will operate a volume injury law practice that relies heavily on the quick settlement of cases.  That may not be in your best interest because often times a case requires a tremendous amount of work before a good settlement can be achieved. 

There are also companies that run TV commercials where the lawyer pays to be the “next lawyer” on the referral list.  Any lawyer can pay to be on the referral list so that lawyer may not necessarily be the best lawyer for your case.  Be careful.

In the end, do your research.  Go to the lawyer’s website.  Review articles or books that the lawyer has written.  You’ll want a lawyer who commands credibility, in and outside the courtroom.  You’ll want a lawyer who has been successfully representing injury or accident victims for several years, not someone who’s only been testing the waters for a few years.  After all, you don’t want to be the “test case” for a lawyer who is still learning.

One common defense is to suggest that the victim suffered from similar injuries before the accident, or that the victim was predisposed to the type of injury he or she suffered.  We at Davis Law Group have had cases where the insurance company actually relied on a medical record that pre-dated the motor vehicle collision 15 years earlier!  Even though are client was symptom-free for more than 12 years, the insurance company still tried to argue that her “pre-existing” injury predisposed her to an injury 15 years later in the car accident!  That gives you some idea as to how absurd some of the defenses the insurance company will allege.

Yet another defense is to try to prove that the victim’s injuries were not caused by the accident, but by other events in the victim’s life (e.g., a prior fall, prior accident, or some other medical condition). When insurance companies cannot dispute fault for the accident they may resort to the age-old tactic of attacking the accident victim’s character or preexisting medical history.

A good lawyer will successfully challenge these common defenses and help the victim present his or her injuries clearly, concisely and coherently.

For example, even if you suffered from a similar medical problem (such as a back or neck condition) before the accident, your lawyer can help you prove that your previous injury was made worse as a result of your accident.

 Washington law supports the premise that a wrongdoer “takes his victim as he finds him.” This means victims are entitled to recover full compensation even if they were particularly susceptible to an injury, or predisposed to experience greater pain or suffering than could have been foreseen by the defendant.

For example, you have a bad back that never required surgery, but then you are involved in a serious car accident that aggravates the back condition enough to require surgery, you are entitled to recover compensation for the surgery. After all, you would not have needed it if the accident had never happened.

If you have a claim where the insurance company seems to be looking for any fact, circumstance or excuse to deny your claim or lessen its value, it’s time for you to speak with an experienced attorney.  Don’t try to fight the company alone.  With its vast resources and knowledge, the insurance company can be a very formidable opponent.  The things you do or say early on in the claim process can make a difference on whether you achieve a successful outcome.