Birmingham Injury Blog

To gently ease into the topic: We hate them. Without question.

Having said that, here is an interesting post from Evan Schaeffer of the Trial Practice Blog about telephone depositions.

To make sure we are clear - what we mean by a telephone deposition is that the witness is somewhere else with a court reporter and often with his attorney. You are appearing by speakerphone. The advantage is no travel and thus it is quicker and cheaper. The disadvantages are you can't see the witness (some use video conferencing to correct this problem - we have not tried this yet) and handling documents becomes more difficult. Our experience has been with bad connections over the phone and just not being in sync with the witness who is sitting in a conference room a thousand miles away. Maybe we'll try them again one day but so far we have kept our vow for five years - no telephone depositions!

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Posted In: Deposition Tips

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Our friends at Miller and Zois, LLC (Maryland Injury Attorneys) have posted a wonderful resource - a trial transcript of a car wreck case.

If you are curious about what a real trial looks like, check this out. Normally the issue of damages is left for the jury but in this particular case the issue was simply who was at fault. It makes for a nice, tightly focused transcript.

Many thanks to Ronald Miller for putting this out for all of us to read.

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Posted In: Car Wreck

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After a lawsuit has been filed and the defendant has been served, the defendant may challenge the lawsuit solely on the allegations in the complaint and ask the court to throw the lawsuit out of court, or to dismiss the lawsuit.

In layman's terms, the defendant is saying to the court that even if you assume everything in the plaintiff's complaint is true, you should still throw it out because the plaintiff has not stated a claim against the defendant.

There can be several reasons for this dismissal. Some examples are that the plaintiff may have not plead a proper legal action, the facts as plead by the plaintiff, even if proven, could never result in a verdict for the plaintiff, there may be a legal defense, such as statute of limitations, which would prevent the plaintiff from winning.

Under the law, dismissals are held to a high legal standard and most cases, assuming they are plead correctly by a knowledgeable attorney, will not be dismissed at this stage. All facts are assumed to be true as plead and all inferences are taken in favor of the plaintiff. In most cases, "notice pleading," pleadings that simply put the defendant on notice of the nature and basic facts of the claim will be enough to get past the Motion to Dismiss Stage.

If the court denies the Motion to Dismiss, the defendant will then have to file an Answer to the Complaint.

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Posted In: Litigation Process

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Matt Elofson of the Dothan Eagle reported recently that the fatalities in Alabama due to car and truck wrecks has declined:

Alabama Governor Bob Riley said last month in a statement that early numbers showed about a 17 percent decrease in fatal crashes across Alabama over the same period. Riley said 2008 became the safest year to travel in more than two decades with 633 people killed during traffic crashes investigated by state troopers. There were 766 people killed in 2007 on Alabama highways investigated by state troopers.
According to a statement from the National Highway Transportation Safety Administration, early estimates showed fatalities across the country to have dropped by about 10 percent in 2008. Those estimates showed 31,110 people died on the nation’s roads from January to October 2008, compared to 34,502 in 2007, during that same 10-month time period.

There are several reasons given for this - higher gas prices and a crackdown on speeding and not wearing seat belts.

Its obvious but when we don't speed and when we wear our seat belts, fewer fatalities happen.

Let's all put into practice what we know and drive safer while wearing our seat-belts.

(Thanks to the Alabama Injury Attorney Blog for alerting us to this interesting article).

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Posted In: Car Wreck , Interesting News , Truck Wreck

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Our friend John Bratt has a good post about some thoughts from a judge on how we as lawyers should act in litigation cases. Check it out and subscribe to John's blog Baltimore Injury Lawyer Blog.

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Posted In: General Case Tips

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After you have filed an injury lawsuit and served the defendant, then the defendant has 30 days (14 days if you file in state district court) to file an "answer" or file a "motion to dismiss".

Let's start with an answer. In the typical car wreck or truck wreck answer, the defendant will deny virtually all of the allegations you made in the complaint. This is not always proper (a subject for a future article) but this is standard and it means that the defendant is saying, in essence, "prove every part of your case".

The answer will also contain "affirmative defenses" that say even if the defendant was negligent or reckless in driving the car or operating a semi truck, because of the affirmative defense you lose. Here are some examples. If you sue outside the time period allowed (generally two years) then a defendant could truly be negligent but because of a statute of limitations defense the defendant would win the case. Or in Alabama we have contributory negligence which means that if you are in any way at fault, you generally cannot recover even if the defendant was 99% responsible for your injuries. There are numerous other affirmative defenses that are typically alleged by the defendant.

For right now the important thing to keep in mind is that the defendant will raise affirmative defenses and that the defendant bears the burden of proof on these defenses. The truck driver must prove, for example, that you were contributorily negligent or whatever other affirmative defense the truck driver has pled to escape getting hit with a verdict.

We'll close with a motion to dismiss. These are not as common in injury cases as in fraud or other types of litigation but they do come up. Basically what the defendant is saying is that the court can look at your complaint, accept everything in there as true, and then apply the law and the only result possible is that you lose. As you might imagine, this is a high standard to meet and should not normally be a major hurdle for you to overcome.

In our next post we'll discuss what a judge does with a motion to dismiss. As always, we hope these posts are helpful to you and feel free to contact us through this blog if you have any questions.

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Posted In: Litigation Process

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Several years ago we represented a family whose love one was living at an assisted living facility in Walker County, Alabama. He had a history of "escaping" the facility and the facility, we alleged, did not take the steps to protect this gentleman. The end result was he left one day without anyone knowing it and then a manhunt ensued that led to the discovery of his dead body a day or two later. We alleged that this tragedy could have been prevented by simple inexpensive solutions such as an alarm or other warning system that a back door had been opened. This was particularly true since this man had repeatedly left the facility and the staff was on notice of his tendencies but did not take the necessary steps to protect him.

I was reminded of this when I read a posting in a wonderful blog called Nursing Homes Abuse Blog by Jonathon Rosenfield. His recent post about a similar situation brought this memory back. I have looked through this blog and it looks to be full of high quality information so I recommend it to your reading.

If you have a loved one in a nursing home or an assisted living facility then it will be wise for you to ask what their policies and practices are to protect your loved one should he or she become confused and try to leave the facility - usually "to get home"....

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Posted In: Nursing Home

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We previously discussed filing the personal injury suit and now we come to serving the defendant with the lawsuit. Once the lawsuit is filed, the defendant needs to be served in order for the time to start running for the defendant to answer the suit.

The constitution requires that defendants be given due process of law and this means (in our context) that the defendant must be served with the lawsuit. It would be fundamentally unfair for the defendant to NOT be served and a judgment be entered against the defendant for failing to answer the complaint.

What are the primary ways a defendant is served with a lawsuit? First, certified mail is sent to the defendant or someone who is authorized to accept service on behalf of the defendant. For example, in a trucking case the trucking company normally has an "agent for service" which is an individual or company that we can send the lawsuit to and this will cause the defendant to be served. Usually, this is a company in Montgomery whose primary purpose is to receive lawsuits and notify their customer the defendant.

A second way of being served is by personally having the Sheriff’s office or other appropriate person hand deliver the lawsuit to the defendant.

A final way is the rare procedure of service by publication which is where a defendant that is avoiding service can be deemed served by a written publication in the Alabama Messenger or other newspapers that the law presumes the defendant will read. The basic gist behind this is that if someone is avoiding service then giving notice to the world through the appropriate newspaper is sufficient and complies with due process.

There are many other details of service that we could cover but we hope this gives you a general idea of how the process works. Once a defendant is served, they will normally have 30 days to answer the complaint or to file a motion to dismiss. We will address this next.

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Posted In: Litigation Process

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After you have met with your attorney, you and your attorney will face the decision of whether and when to file the lawsuit, also called the Complaint.

First, your attorney will determine whether you have a claim that is worth filing. There are lots of things that go into this decision. In the context of a personal injury or car wreck claim, your lawyer will look to see if your claim meets the necessary criteria to make a claim. This will involve looking at a number of issues. These will include, for example, looking to see if someone else is responsible for causing your injuries; is that person viable or do they have insurance to pay a claim; are there enough facts to prove your case, does contributory negligence prevent the filing of your claim; and many others. Finally, the lawyer will need to determine if your injuries significant enough to justify filing a lawsuit.

As an aside, many lawyers will try to settle your case with the insurance company before suit is filed. This can expedite things assuming you finish your medical treatment and healing relatively quickly and can be especially good for smaller cases where liability is not disputed.

Once your lawyer has decided that it is necessary to file a lawsuit, he or she will draft the lawsuit laying out the claims. All lawsuits have who the parties are, the factual allegations of what happened, how the plaintiff has been injured, what legal theories the plaintiff is suing under (i.e., negligence, wantonness, defective product, defamation, etc) and what the injured party wants to achieve.

Once your lawyer files the Complaint, the lawsuit has begun. However, be patient. The next step is to serve the defendant. We will discuss service in our next post.

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Posted In: Litigation Process

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In January a case came out that is a good reminder to everyone on how Rule 59.1 works. The basic gist is that 90 days from the time someone files a Rule 59 motion (a motion to ask the judge to change her mind on a final order), unless the judge extends the time, the motion is denied.

Here is a good explanation (from a divorce law standpoint) of how this works. We thank Lee Borden for his good analysis of this new case.

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Posted In: Rules Of Civil Procedure

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I was in a deposition the other day and while watching my client answer the questions, I was reminded of a couple of pointers. My client was attempting to testify to the best of her ability, but had a hazy memory of the events. While this is certainly not devastating to the case, it might at a later point bring her credibility into question. At the very least, if the other side has what appears to be a clearer memory or record of the events, it may likely cause the jury to tend to side with their version.

Cases often take a year or more to get to trial. It can be difficult to remember the events clearly, especially when issues of the timing of events or how you felt at a particular time become important. We recommend that as early in the case as you can, sit down and hand write everything you can think of about your case. Start by writing down chronologically what things happened, when they happened and how they hurt or injured you or how they made you feel.

Later, when you are required to recite this in a deposition or at trial, you will be able to prepare and review your notes to help you remember what happened.

The only downside to keeping these type notes is that if they were made by you, on your own, and not at the request of your attorney, then the other side may be able to obtain a copy through discovery. Remember in preparing these notes, only right down what happened and the pain it caused you or how it made you feel at the time. Keep your editorial comments about the events or people involved to a minimum. If you are concerned about the other side seeing these notes, then simply do no keep them. Also, if you start writing these notes, then you should do so frequently so that you will later have an accurate picture of what happened. When you keep notes and fail to record something, it can later be treated by the other side as if it did not happen. So remember, if you start, be diligent!

If you are currently involved in a lawsuit, we recommend you consult with your attorney before undertaking such note keeping.

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Posted In: General Case Tips

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We are often asked by Alabama injury victims what happens when they file a case. Do they immediately give a deposition? Go in front of the judge? What's the order of things that occur.

We'll hit the following topics in more detail in later posts but for now this will give you a good overview.

1. Suit is filed.
2. The lawsuit (complaint) is served on the defendant or defendants.
3. 30 days after being served, each defendant must answer the lawsuit or file a motion to dismiss.
4. If a motion to dismiss is filed, then the court will normally have a hearing to determine if the case against that defendant can proceed or if that particular claim against a defendant will be dismissed and not a part of the case.
5. If an answer is filed, then the parties can engage in discovery to learn information about each other's positions.
6. Written discovery occurs. This includes request for production of documents, interrogatories (written questions to be answered), request for admissions (questions the other side must answer "yes" or "no" to), and subpoenas to others who are not parties to the case (medical records, etc).
7. Depositions normally follow after written discovery.
8. Often one party will move for summary judgment asking the judge to go ahead and rule in that party's favor on the whole case or part of the case as no reasonable jury could rule on the issue any other way.
9. Often mediation will occur before a trial. This is where the parties try to resolve their differences with the help of a neutral person (lawyer, retired judge, etc).
10. Trial occurs.
11. The losing party can ask the judge to change his or her mind about a ruling so that a new trial can occur.
12. Appeal to the Court of Civil Appeals or the Supreme Court of Alabama.

We will take each one of these steps and provide more detail so that as you consider filing a lawsuit in Alabama you will have a good idea of the steps that happen after you file your injury lawsuit.

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Posted In: Litigation Process

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The wonderful thing about settling a case is that you have control over what happens instead of leaving it up to the jury. One way of settling cases that are in trial (in can happen before but normally happens during trial) is called a "high-low" agreement.

Basically, this means that the parties set an upper limit (the "high") and a lower limit (the "low") and then the jury returns the verdict. If it is higher than the "high", then it is reduced to the high number. If lower than the "low", then it is increased to the low. If it is between the high and low then that number is kept.

Here is an example. We had a case where the high was around 1 million and the low was around $400,000. If the jury verdict was 2 million - the settlement would actually just be the 1 million. If the verdict was a defense verdict, the settlement would still be the $400,000 because that is the lowest possible settlement. If the verdict was $600,000 then that would stand as it is in between the high and low.

Ronald Miller has a good post about some problems that can result from a high-low agreement - namely if all the details are not covered such as pre-judgment interest. Make sure and check out Ronald's blog - good stuff there.

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Posted In: Trials

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When we first started practicing law in the 90s we could not force the defendants to reveal the limits of their insurance policy in state court but this changed a number of years ago. This has helped in settlement negotiations as it helps when we have the same knowledge as the defendant as to this critical issue - how much insurance is out there.

If the defendant has a small amount of insurance, then we can tell our clients this and decide if settling is the right option even if the amount is lower than any of us would like.

If the defendant has a high amount of insurance (for example in one trucking case the primary insurance was 1 million and the excess was 25 million) then everyone understands that a large verdict could be paid from the policy.

It is odd but some defendants in state court still fight us on producing this information despite the rules expressly requiring the defendants to produce this. In federal court in one of our consumer cases the defendant refused to produce the policy because the defendant decided not to file a claim with the insurance company. The federal judge quickly ordered it to be produced as the federal rule is clear that insurance is discoverable.

Remember if you are in a wreck normally the insurance company will NOT tell you what the insurance limits are of the person who caused the wreck. But if you file suit you can discover this information and it is very helpful to know.

We'll write more about the discovery process in the near future.

Thanks to the excellent blog "Day on Torts" by John. A. Day for reminding us to discuss this concept - Tennessee just ruled that insurance limits in Tennessee are not discoverable.

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Posted In: Car Wreck , Insurance

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Check out this interesting new blog - has excerpts of books related to litigation. Thanks to The Trial Practice Tips blog for letting us know about this excellent resource.

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Posted In: Deposition Tips

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Many of our clients who have been the victims of personal injury or who have suffered a catastrophic injury or had a family member suffer one will often ask this question. While each case must be looked at specifically, most personal injury cases in Alabama must be filed within two years. If you have not done so, then the claim is gone forever. It is vitally important that you contact a lawyer much sooner those, as there are different laws for different type cases and your time limit could be less.

However, even if you are reluctant to do anything right away, be aware that the insurance companies are. After a car wreck or catastrophic injury, they will be hiring an investigator to begin investigating the claim right away. This will include gathering evidence from the scene, taking pictures of the scene, tracking down and interviewing witnesses. All of these are vitally important to gather as close to the date of injury as possible.

Witnesses move, memories fade, and evidence goes away over time. To protect yourself, you and your lawyer should begin investigating the scene and gathering evidence as soon as possible, if not the same or next day. Know that the insurance companies will being doing this to assist them in paying the least possible on your claim. If you want to protect yourself and maximize your chances of recovery you cannot wait.

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Posted In: Trials

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Our friend Evan Schaeffer has a three part series on 15 ways to really foul up depositions. Here is part one - look for the others either here or directly on his wonderful blog The Trial Practice Tips

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Posted In: Deposition Tips

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