Archive for year: 2023

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WOW! YOU SEEM TO HAVE A LOT OF AWARDS. YOU MUST BE A GREAT A LAWYER.

If you can hear the sarcasm in your mind as you read this title, we are on the same page. That said, here is a small public service announcement about lawyer awards.

The vast majority of awards are misleading. They are bought and paid for. Companies solicit attorneys to pay a certain amount of money to get a plaque that say things like “Top 100 Trial Lawyers.” How is this company determining how someone is a “Top 100 Trial Lawyer?” How many “Top 100 Trial Lawyers” are there in Nevada? In the United States? My guess is there are however many who are willing to pay the fee once they are invited to join this group.

Magazines also put out lists of “Rising Stars” or “Top Lawyers” or “Best of Las Vegas.” These are generally popularity contests where attorneys call their friends and have them vote for them or put out requests on social media “don’t forget to vote for us as “Best Lawyers” in the next Best of Vegas poll.” This isn’t to say there aren’t great lawyers on these lists. There are. No doubt. But there is certainly a lot of self-promotion that goes on.

So, what is the point of telling you this? It’s to help you be a smart consumer if you need a lawyer. If you see a lot of plaques or awards on your potential lawyer’s wall or web page or billboard, ask them what they had to do to get that award. Did they have to pay money for it? Was it based on a specific trial they won or case they handled? A lawyer who isn’t transparent about this may not be willing to be transparent about things that are much more important down the road. Again, there are a lot of good lawyers with these types of awards. But as my grandmother used to say “consider the source.”

BURDENS OF PROOF- OR HOW MUCH DO I HAVE TO BE CONVINCED?

In our system of justice there are three burdens of proof that apply depending on the type of case or the issues involved. One of them everybody knows. The other two, not so much. And that is a bit frightening for a personal injury lawyer like me because it’s one of the two burdens that applies in every personal injury case.

In criminal cases the burden is “beyond a reasonable doubt.” This is the one everyone knows because we have seen it on TV. Crime dramas make good TV, and in criminal cases the burden is beyond a reasonable doubt. It is the absolute highest standard in the law. When talking to potential jurors I generally get a response that they believe this standard means they need to be about 99% convinced of the defendant’s guild.

The next highest standard is ”clear and convincing.” This is lower than beyond a reasonable doubt and is used primarily when someone is alleging fraud or punitive damages (damages to punish the defendant because they acted with a conscious disregard for health, safety, and welfare of the public- think drunk driving). Generally, people tell me they would need to be about 75% sure to be clearly convinced of the defendant’s guilt in these types of cases.

The standard in personal injury cases is “a preponderance of the evidence.” This is the lowest burden of proof in the law. For the plaintiff to meet their burden they must convince the jury that he or she (the plaintiff) is just more likely right than wrong. Just more likely than not.

If we were to look at a scale that was evenly weighted, and a feather drops on the plaintiff’s side to tip, it’s just enough so that the plaintiff’s evidence has a little bit more convincing weight, that is a preponderance. If we are using percentages, it can be said that 50.1%, just more than half, is sufficient for the plaintiff to meet his or her burden. Or, to use a sports analogy, if your favorite team is in the Super Bowl, they don’t need to win 42-7 to hoist the Lombardi Trophy. They can kick a last second field goal, win 28-27 and they have still won. They are still the champions winning just by a preponderance of the points. So, in a case where preponderance of evidence applies anyone in the jury room who says “I don’t know, I am just not sure” would not be applying the proper burden. The law doesn’t require that strict of a standard in civil cases. The jury doesn’t have to be sure; it just needs to be convinced more likely than not. A lot of plaintiffs have had justice denied to them because the jury thought the plaintiff had to win my more, sometimes a lot more, than just one point.

Preponderance of evidence applies to both elements of plaintiff’s claim- liability (who is at fault) and damages (what injuries were caused by the crash, was the treatment reasonable, how much in pain and suffering did the plaintiff endure, what is the value of the damages suffered by the plaintiff). Whether a plaintiff is asking for $20,000, $200,000, $2,000,000 or $200,000,000 the burden remains the same. It doesn’t go up based on the damages that are being sought.

If you ever find yourself on a jury and start hearing these terms, you’ll now have a primer for what you are going to be asked to do if you wind up being selected as a juror. These burdens and their distinctions are extremely important. Applying them correctly helps ensure justice is done.

PAIN AND SUFFERING- WHAT IS IT AND WHY DOES THE LAW DEMAND SUCH DAMAGES BE “AWARDED”?

When I conduct focus groups on cases or when I am picking a jury, one of the “hot button topics” is always pain and suffering. Pain and suffering damages are often looked at with a jaundiced eye by people. Most people have no problem with medical bills or lost wages. Those are tangible items of damages that can be easily calculated. But pain and suffering can be a different story.

Pain and suffering damages are just that- damages for the pain and suffering that a person suffers (past) and will suffer (future) as a result of the injuries that were unnaturally thrust into their lives through no fault of their own. This includes, among possible other factors, physical pain, emotional and mental pain such as anxiety, stress, depression inconvenience, fear, and embarrassment. It includes the past and future loss of enjoyment of life or the loss of our ability to enjoy the things we did before the crash. That could be the total loss of ability to perform our hobbies or the loss of our ability to get as much enjoyment out of them as we once did. Maybe you can still hike at Red Rock or Mt. Charleston or spend time on the beach in San Diego. But you don’t enjoy it as much because you are in pain. You can still take that road trip to Phoenix for Thanksgiving to visit your sister, but you know you are going to pay for it the next day (and the four-hour drive is now a six-hour drive because you have to stop to get out and stretch). It may seem like small thing to not be able to sit pain free on a Sunday and watch your favorite team play. It isn’t to the person who has lost that ability to sit pain free for a few hours before heading back to work the next day. Those small treasures are meaningful. It is what makes life fun in the midst of the pressure and stresses of our everyday lives.

The law demands that these harms and losses be reimbursed. There is no other way to do this than an “award” of money. I hate that term by the way, “award.” People who have been injured through no fault of their own have not won an “award.” They have had their health and freedom taken from them. It isn’t a fair trade and it isn’t a trade anyone would freely enter into. Look at it this way: someone comes up to you and asks “how much money would I have to give you to be injured in crash, have a disc taken out of your spine, have some amount of pain for the rest of your life, and lose at least some of the ability to enjoy the things you love to do. You will also have anxiety and stress worrying if your body will break down faster as you age because of your injuries and whether or not you will loss independence, mobility, and be a burden on your spouse, children or friends” What would you say that person? My guess is it might start with an F and ends in “off.” But that is the situation people who are hurt in a crash are in. The only difference is they didn’t have a choice. They have had what might be the most important thing they have that is unique to them, their health, taken from them through no choice of their own.

The value of pain and suffering will depend on the significance of the pain and the losses that are suffered. Are there cases where pain and suffering verdicts of $1,000,000 or more are justified? You bet. Is that most cases? Of course not. But health has value and when it is taken from us the only remedy for that is money. Most people, if it was an option, would ask the judge to take out a magic wand and take them back in time to moments before the crash and then place a spell on the Defendant so he or she doesn’t cause the collision or properly cleans up the spill in Aisle 3. But until time travel is an option, this is the only way we must try and make up for the harms and losses that are suffered by innocent victims.

HOW MUCH IS MY CASE WORTH?

This is both a common, and fair, question. The answer is: It depends. There are a number of factors that help determine case value- whether rightly or wrongly. Here are four factors that play an integral role in helping to determine case value.

1. Prior medical history. This is pretty self-explanatory. If you have a history of low back or neck pain and treatment and then get in a crash the person that hit you is only responsible for getting you back to how you were before you were in the crash. Does this mean there can’t be a new injury to your already injured back or neck? Of course not. But the reality is if you have a history of pain and treatment to a body part you claim is injured in a crash that is probably going to bring down the value of your claim.

2. Amount of property damage: For as valid as prior medical history is in assessing case value, amount of property damage is an equally invalid measure. But a lot of times it matters. Insurance adjusters and jurors can have a hard time believing that if there is little property damage the person that was hit just can’t be that hurt. This is a completely intellectually dishonest argument, but it can be effective. That said, we certainly have come up with logical, rational arguments as to why property damage is an unfair measure of whether someone is injured or not.

3. Type of injury, the treatment you receive, and the limitations you experience due to your injuries: Let me be clear on this; Nobody, and I mean nobody, wants the $1,000,000 (or more) case. When defense lawyers argue “this is jackpot justice, something for nothing” I want to ask them if they would go through what my client has gone through just to get some money. What rational person would have a needle stuck in their spine for money? What rational person would have a disc remove from their spine and have their bones fused together just for money? The answer is none- or at least nobody I would ever represent. The long and short of it is if you have that $1,000,000 or $5,000,000 or $10,000,000 case, you are seriously injured and generally have lifelong pain, limitations, and disability. You have severe forever injuries that prevent you from not just enjoying life, but from taking part in those treasures that make life worth living.

4. Your past matters: In Nevada, felony convictions within 10 years of trial, or a release from probation, parole or confinement are admissible into evidence. I have heard clients in the past argue with me “what does my conviction for robbery six years ago have to do with anything. I did my time. I paid my debt. Why should this matter?” I don’t tend to disagree. But the law does disagree. The law believes that these convictions go to something called “veracity” or truthfulness.

Do you need a “perfect” case in order to bring a claim? Of course not. Do people who have been injured in the past, or maybe have some things in their past the are not proud of, not deserve justice? Of course not. Everyone deserves fair justice for the harms they suffer. So don’t be dissuaded if your case isn’t “perfect.” It is important to have reasonable expectations on what factors will drive the value of case and what your case is worth.

SEVEN DO’S AND DON’T DO’S AFTER A CRASH

Not many of us remember phone numbers anymore. We don’t need to. But back when I was a kid (when dinosaurs roamed the earth), we had to. Research showed that most people could generally remember up to seven numbers. Hence, phone numbers being seven numbers.

You’ve just been in a crash. Your adrenaline is pumping. You’re nervous. But, there are things you need to do in order to document the information for the insurance companies and, if you need one, your attorney. There are also things you don’t want to do which will come back to bite you no matter how innocent they may seem. These Seven Do’s and Don’ts might not always be possible- for instance if you are seriously injured and are taken to the hospital from the crash scene. But, these will apply to the vast majority of crashes you may be involved in. Taking these basic steps will help down the road if you are unfortunately injured and need to make a claim.

DO:

1. Take a deep breath and collect yourself.
2. Check and see if you or anyone else is injured. Even if you didn’t cause the collision be a good person and ask the at fault party if they are OK or need medical assistance. If you feel you need medical attention- get it! Even if you don’t believe you need to take an ambulance to an emergency room go to a local quick care if you feel you need medical attention.
3. If there are independent witnesses get their names and contact information. It does no good to have some one say “I saw this, it was the other guy or gal’s fault” and then not be able to contact them when the insurance company is blaming you.
4. Before moving the vehicles take pictures of how and where the vehicles came to rest.
5. Get the other person’s name and insurance information. Get photos of their licenses, insurance card, and registration. Also, give them your information. The law requires you provide your information even if you are not at fault.
6. Once the cars are moved, get additional pictures of the property damage to all vehicles involved.
7. Call 911 if you feel the police should investigate. Not all crashes may necessarily need police involvement. But if you feel it does, call. Don’t let the other party talk you out of it. If the police did not come to the scene, go to your local police station as soon as practical and fill out a report of accident. It is important to document what happened.

DON’T:

1. Be rude to the other driver. Don’t engage them if they are being rude to you. Don’t swear at them, call them names, or otherwise act like a jerk. First, it isn’t nice. Second, everything you do and say is potentially evidence.
2. Talk to the at fault driver’s insurance company or give them a recorded statement. Their only job is to try and gather evidence to show you are not hurt or that the crash is your fault. And the truth is they are good at it.
3. Post on social media about the crash, your injuries, or lack of injuries. Don’t post “I was just in a crash and I am about to get PAID” (yes, a former client actually posted that once). The insurance company is going to look you up immediately on all social media platforms. The only thing more harmful to your claim than gaps in treatment or lying about prior crashes, pain, and/or treatment are stupid social medial posts.
4. Lie about anything. If you go to a doctor after the crash be honest about your medical history. If you already had back pain before the crash, don’t tell them you’ve never had back pain. If the crash made the pain worse, tell them the truth. If you are thinking “I wonder if the doctor needs to know this or should I disclose this” the answer is YES!
5. Commit to see an attorney if someone shows up and says: “Hey, I say all of this. And, I know an attorney who is really good. They got me $1,000,000. How about we go there now. I’ll drive you. You can fill out the paperwork on the way.” Or, if the tow truck driver pulls you aside and offers you the information of an attorney “that helped me out and got me a lot of money.” If this happens get the name and contact information of the person who approached you and the name of the lawyer and thank them for the information. This is called capping. It is illegal and unfortunately happens A LOT here in Las Vegas. Call the Nevada State Bar (702 382-0504) and let them know it happened.
6. Wait to see a doctor if you are hurt. Some injuries might not show up for 24-72 hours. Maybe longer. But, once they show up don’t wait to go to a doctor. First, this is your health. Don’t mess around with it. Second, the longer you wait the more likely the insurance company and eventually an arbitrator or a jury will believe you aren’t hurt.
7. Don’t assume just because the other person says “it’s my fault” or that the police give them a ticket that their insurance company is going to agree. Insurance companies deny liability (fault) all the time even though the driver they insure admits it. That is why it is so important to take pictures at the scene. How the cars came to rest, what lanes there are in, the property damage, the surrounding area. These photos will help down the line.

Hopefully, you’ll never need to follow any of these steps. But if you are involved in a crash please understand that everything you do, and don’t do, is going to be scrutinized by someone. Whether or not you have photos of the scene, wait to get treatment, or take the time to accurately relay your medical history all can have a serious effect on your claim. Don’t give the insurance company any more advantages than they already have be not doing the do’s and doing the don’t do’s.

SOMETIMES ALL IT TAKES IS JUST A LITTLE EXTRA EFFORT

“Hard work beats talent when talent doesn’t work hard.” This is one of my favorite sayings (along with “a rising tide lifts all boats”). I like to think that my team and I are talented. But, I know we work hard. I believe there isn’t a personal injury law firm out there that works harder than we do. And that is what I am writing about today.

We settled a case today for $10,350. It was by all accounts a small case. This client had been dropped by another large law firm (don’t ASK me which one) because the insurance company denied liability. In English that means the insurance company for the other driver told the lawyer “our insured isn’t at fault and we aren’t going to pay.” That law firm now faced with having to put in some effort because this case wasn’t going to be easy money decided to drop their client.

The client’s chiropractor contacted our office and asked if we would meet with her. He said she is a very nice lady and was hoping someone else would take a look. We said “of course!” Well, he was right. She is very nice. We talked about her case. She and I drove out to the crash scene so she could better explain what happened. It was clear to me that she wasn’t at fault for this crash and had a righteous claim.

We sent a letter to the insurance company indicating we were now representing here. In that letter we politely explained why we believed their determination was wrong and asked them to reconsider. A few months later after our client had finished her treatment we sent a settlement demand. The insurance company agreed that we were right in our analysis of who really was at fault. To its credit it paid a fair settlement on this claim.

This isn’t the first time, nor will it be the last time, that we have represented a client who has been dropped by other law firms because they just don’t want to put in the work. Settlements in cases like this are part of why we do what we do- helping good people with legitimate claims. From a financial perspective this will likely be the “smallest” success we will have this month, maybe even this year. But I doubt we will be more proud of any other outcome.

INSURANCE (VERY) BASICS

I truly love what I do. My team and I love helping people. But truth be told, it can be frustrating at times for a number of reasons (and what job isn’t from time to time). But this is one of the most common sources of my frustration. It’s when I first meet a new client. They are almost always very nice. They are good, hard working people. We talk about a number of issues in our first meeting, including their insurance. Invariably I hear them say: “Don’t worry, I have full coverage.”

Many people believe because they have “full coverage” that their insurance will reimburse them for medical treatment, lost wages, pain and suffering, or any other damages. Unfortunately, this is far from the truth. “Full Coverage” is a misnomer. It doesn’t exist. When insurance agents us the term “full coverage” they are inartfully trying to tell you that you have the minimum insurance coverage to legally drive in Nevada. As a driver here in Nevada you are required to carry a liability insurance policy. The minimum limits for bodily injury are $25,000 per person/$50,000 per accident. For property damage the minimum limit are $20,000.

Liability insurance protects everyone you harm if you cause a crash. For example, if you cause a crash where one other person is involved your insurance will pay up to $25,000 for that person’s medical bills, pain and suffering, and lost wages. Your insurance would pay up to $20,000 for the property damage you caused to their vehicle or property in his or her vehicle. If the crash involved more than one other person, your insurance would pay no more than a total of $50,000, with each person entitled to no more than $25,000. Your liability insurance does not pay for your medical bills, pain and suffering or any other element of your damages.

Fortunately, there are coverages you can have added to your policy that protect you. The first and most important is Uninsured/Underinsured Motorist. In Nevada, Underinsured and Uninsured Motorist are the same thing. They are commonly referred to as UM or UIM insurance. By law, your insurance agent must offer this coverage to you. If you reject the coverage your agent must have you sign a rejection form.

Here is how UM/UIM work: You are in a crash that isn’t your fault. Your medical bills are $30,000. The person that caused the crash only has the state minimum $25,000 in liability coverage. In that instance, the person at fault for the crash is “underinsured.” They don’t have enough coverage to cover your injuries. If you have $25,000 in UIM coverage you can look to your insurance carrier to pay for the remaining medical bills and to reimburse you for the pain and suffering and any lost wages you experienced. Without having UM/UIM coverage you would be out of luck and limited to a maximum of $25,000 recover even though your medical bills are $30,000.

In addition to UM/UIM you may opt to purchase medical payment coverage or “Med Pay.” This acts like health insurance. For example, if you have $5,000 in medical payment coverage on your policy, your insurance company will pay up to $5,000 in reasonable and necessary treatment if you are injured in a crash.

Insurance coverage is something most of us only think about once it is too late. Take ten minutes and call your agent. Check your policy for UM/UIM or “Med Pay” coverage. If you don’t have them, consider getting them- especially UM/UIM. The premiums generally don’t add too much to the policy. And as the old saying goes, an ounce of prevention is worth a pound of cure.

For more information on types of coverages available, call your insurance agent or take a look at the following information from the Nevada Division of Insurance https://doi.nv.gov/Consumers/Automobile-Insurance/.

Kristof Law Group

1055 Whitney Ranch Dr., Ste. 220
Henderson, NV 89014

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