Not The Normal Personal Injury Blah Blah
Published to: 000111, 000115, 000116, 000117, A Small Town Lawyer's Perspective, Perspectives of a Small Town Lawyer, West Virginia Lawyer - Tips and Techniques
on June 10, 2011 8:47 pm
Leave your thoughts
(Note: February 10, 2012. J.B.H. This post is not nearly as self serving as the title implies. It describes my early experiences with personal injury law as a spring board for an explanation of our tort law system in WV. Our system is based on a fundamental value that we should be responsible for our mistakes, our reckless behavior, and our intentional wrongdoing. George W. Bush would have had us believe that asking for recompense from an “at fault party” is somehow un-American. The documentary “Hot Coffee” helps thoroughly to debunk that myth by dissecting the infamous “McDonald Coffee Case” and the elderly woman, maimed for life, who filed that claim.)
Now I am back to my theme: a series of posts describing the training and experience which allows me to represent the victims of serious injury effectively.
I am pleased that some of my clients have applied the “bulldog” label to me. It probably suits me.
But, how did I get here, and how have I come to represent hundreds of victims of accidental injury? The answer to that story should be reassuring to someone seeking a reliable and competent personal injury lawyer.
My law school torts professor, Tom Cady, who is still there, is a very entertaining fellow. A “tort” is an injury caused by one person upon another. Professor Cady made the course very interesting. I wish that were so in all my classes. He used humor and irony to make his points.
Back then WV had “contributory negligence”, which was supposed to mean that if the injured party had even one per cent (1%) of the fault, he/she was barred from recovery. This harsh rule led to myriad exceptions, which we were forced to learn if we wanted to pass.
I learned that juries ignore contributory negligence and apply their common sense, when I lost my first “mock trial” in law school even though the injured victim had also been negligent.
Of course, just a few years out of law school, they completely changed the rule! They have been doing that ever since, changing the law just when I get comfortable with it.
Now WV has “comparative fault”, which has two components:
1. Victims who are 50% or more at fault cannot recover; and,
2. If the jury determines the claimant was partially at fault, say 35%, she/he can collect only 65% of the proven damages.
Simple, right? The devil is in the details.
The source of the law in WV is:
a. The Common Law, which came to us from England, and which we shared with the state of Va. until 1863;
b. Statutes, which are written and passed by our legislatures, state and federal; and,
c. Case law, which comes from appellate courts, also state and federal. The highest court is the U.S. Supreme Court. WV’s highest court is the WV Supreme Court of Appeals.
d. Common Sense? Sometimes.
I learned from one such early reported case, the “thin skull theory”, which I have since used to collect hundreds of thousands of dollars for my clients. In the facts of that case, a fellow struck another on the head with an object, perhaps a book, in jest. Which of us hasn’t done something like that to another classmate?
He expected to stun or startle him, but the congenitally thin skull collapsed, killing the victim. This was good for the person doing the striking since by English Common Law damages for wrongful death were grossly limited. It would have been much more expensive to reimburse a brain-injured person for life.
The appellate court ruled that the injury was “foreseeable” since a certain percentage of the population will have “thin skulls”. In other words, many people have greater than average susceptibility to injury. The tortfeasor (a tort is an injury) takes his victim as he finds him.
Insurance adjusters love “pre-existing injury”, or conditions, because they argue that a previous injury to a neck means that the more recent collision was not the cause of the claimant’s pain; the first injury was.
Dealing with pre-existing injury is child’s play. Just disclose it early, show your client has not been treated for that injury in several years, and argue that it is the seriousness of the first injury that makes the client’s claim for serious pain and suffering more believable. I have found that I get more money for the client with pre-existing injury.
If the client has been treating for the prior condition, it is imperative that her treating physician render an opinion to “a reasonable degree of medical certainty” that the recent event exacerbated the condition and created a new injury.
Even then, while the insurance company may hire its own doctor to opine that the symptoms are from the first injury, I argue that the client was more susceptible to injury.
I still settle most of those cases.
For my next post, I shall discuss the foundation upon which I created a busy personal injury law practice, starting with four years of service as a U.S. Air Force assistant judge advocate, USAF-JAG.
This post was written by Burton Hunter