Catching Up with CSI: Medically Demonstrative Technology

We have tried many personal injury and wrongful death cases over the years, and there have been plenty of instances where we’ve asked medical experts to testify about what did or didn’t happen to the plaintiff. Jurors have enough information to process throughout a trial as it is, and expecting them to comprehend in just a few hours what might take medical professionals years to understand is asking a lot. Thanks to advancements in medically demonstrative technology, conveying information to a jury has become much more efficient.

Uses of medically demonstrative technology

In the past, expert witnesses have used anatomical models, illustrations, or photos to demonstrate medical conditions and injuries to judges and juries. Today, computer programs and applications have replaced some of those methods and offer experts more sophisticated tools for use in court.

Animation allows juries to see more accurate, real-time and to-scale representations of injuries or medical conditions. CT scans and MRIs not only offer more detailed visuals, they allow juries to see evidence of the plaintiff’s actual injuries instead of having to conceptualize them from a generic diagram or photograph. We once showed a jury an animation of how oxygenated blood moves from a mother to her baby before the baby is born. This was much easier to grasp than a static presentation with a lecture ever would have been.

Applications and programs

Innovative programs and apps represent further leaps forward in medically demonstrative technology. One of the latest lets a jury view specific parts of the body in detail. An expert or attorney can pull up the application on his or her iPad and view the human body layer by layer—they can choose to display the skeleton, or the digestive system, or the nervous system, etc. It’s an excellent way to give juries a close-up look at the human body—and to keep the jury’s attention.

An expert on the witness stand explaining a nerve injury can click an image to show exactly how an injury occurred from multiple angles. The expert can show the view that a surgeon would see while operating, and illustrate (for example) where the surgeon made an error. It’s far more vivid and effective than an old-fashioned two-dimensional presentation.

If you’re thinking you’ve seen something similar on television recently, you probably have. It’s the kind of tech that CSI and other shows have used for a long time—though it’s taken longer to make its way into real-world courtrooms.

Giving expert witnesses authority

Another advantage of medically demonstrative technology is that it gives expert witnesses more authority. Equipped with medically demonstrative tech, expert witnesses become teachers who can show how something happened and why, rather than just lecturers who recite their version of an event. To a jury, a teacher who can demonstrate what happened and why is more appealing than a dry lecturer. Plus, when an expert witness projects the authority of a teacher, it’s harder for a defense attorney to accuse the expert of not being objective.

As is the case with any witness, however, there are sometimes questions of accuracy when experts use medically demonstrative technology. Judges want to know if the software program or app is correctly showing what it claims to show. As such technology becomes more commonplace, precedent can help establish its accuracy. Nevertheless, we still make sure our experts can vouch for the technology they use in each individual case. In the case of an app that creates a custom model from actual medical records, for example, we need to be sure the model is accurate and that the expert is familiar enough with the model to say so.

We also must ensure the technology presents a model clearly and accurately because we may only have one opportunity to present it to a jury. Much of the time, jurors can’t ask to see a medically demonstrative technology display again the way they can re-examine a photo or medical record that has been entered into evidence.

Personal injury or wrongful death case?

We believe it’s important to use every available tool to fight for our clients in personal injury or wrongful death cases, and medically demonstrative technology is but one of those tools. If you’ve been harmed and need legal assistance from Ohio civil litigation attorneys who work only with the best experts and tools, give us a call.

The outcome of any client’s case will depend on the particular legal and factual circumstances of the case.

Subrogation, Private Health Insurance and Your Personal Injury Settlement

In previous articles, we’ve shared the basics of subrogation and how it relates to Medicare and Medicaid. The rules that govern subrogation for Medicare and Medicaid are different than those for private health insurers. In this article, we’ll discuss subrogation as it relates to private insurance and ways we can help our clients minimize its effects on their personal injury settlement or judgment.

Private insurance subrogation laws

Unlike Medicare and Medicaid, in which subrogation rules are part of the laws and regulations that govern the programs, private insurance subrogation rules are contained in insurance contracts. And while Medicare reduces its subrogation to account for fees and costs, and Medicaid limits the amount of a settlement that can be taken via subrogation, private insurance may have no such restrictions.

Unfortunately, many people get health insurance through their employer (or the Affordable Care Act), and there’s not a lot of room for shopping around and the contract terms are non-negotiable.

Example of a worst-case scenario: In a car accident, when one driver is hit by another, the victim’s health insurance company pays $50,000 to cover the medical expenses. A lawsuit is filed against the offending driver, but because the driver has minimum auto insurance limits, it recovers only $25,000. The language in the injured person’s health insurance contract might give their insurer the right to recover every dollar it paid on their behalf originally. So, the $25,000 recovered in the lawsuit would go directly to the plaintiff’s health insurance company.

It’s hard to understand, given that people pay premiums for their health insurance and expect that they’re getting something for what they paid for. Many are shocked to learn that their insurer doesn’t have to bear the risk of having to pay their medical bills.

Ohio civil litigation attorneys examine the fine print

Frequently, there are ways we can fight subrogation claims on our clients’ behalf. First, we try to make sure our clients pay no more than they’re legally obligated to by diligently reviewing the language in the insurance contract. Unless the contract uses certain proper and precise language, the insurance company may not be able to make a claim on the settlement at all. There are some conditions that could prevent subrogation claims:

  • No contract – Insurance companies are sometimes unable to produce a written contract for examination, but they might try to assert a subrogation claim anyway. Without having a contract to back up such a claim, they’re out of luck.
  • Timing – We check to make sure that the exact subrogation language in the contract the insurer is trying to apply was in effect at the time of the accident. For example, if an accident occurs in 2015, but the subrogation language in the contract didn’t go into effect until 2016, then it can’t apply to that case.
  • Agreement with state law – Some private health insurance contracts are governed by state law. In those cases, if the contract language in question doesn’t meet the requirements of Ohio subrogation law, the insurance company may not be able to claim some or all of what it paid.

What if the subrogation language is binding?

Even if we’ve verified that the contract language is sound and the right to subrogation as written in the contract is valid, we still have options. Insurance companies don’t want to spend a great deal of money collecting subrogation payments, so the possibility of having to go to court often prompts a company to negotiate.

Another option—we sometimes think of it as the secret weapon—is to negotiate a reduction of the subrogation claim by threatening to drop the lawsuit altogether. The threat of exercising this option can persuade the insurance company to negotiate on subrogation because without the personal injury case, there would be no settlement from which to collect. This approach is absolutely one of last resort, of course. But if the subrogation claim would swallow up all of our client’s recovery, it may be the only way to get the health insurer to negotiation.

There are many things to consider when you’re facing the threat of losing a personal injury recovery to a subrogation claim. If you could use some assistance navigating a messy subrogation battle, give the Ohio civil litigation attorneys at Cooper & Elliott a call. We’re here to help.

The outcome of any client’s case will depend on the particular legal and factual circumstances of the case.

How Subrogation Works with Medicare and Medicaid

In our last post, we outlined the basics of subrogation. Briefly, subrogation is the right of someone besides an injured person to recover something out of a personal injury case.  Subrogation works differently depending on the type of insurance involved. Medicare and Medicaid have different sets of rules from private insurers. In this post, part two of the series, we’ll discuss subrogation as it relates to Medicare and Medicaid.

How subrogation works with taxpayer-funded insurance

Medicare and Medicaid are government run programs, funded by taxpayer dollars. The intent of subrogation in these programs is to offset taxpayer responsibility for the related healthcare costs.

Subrogation rules are written into the statutes that govern Medicare and Medicaid. Virtually always, if Medicare or Medicaid paid medical expenses incurred because of a personal injury, there will be at least some subrogation payment from a personal injury judgment or settlement. But the good news is that—unlike the subrogation rules for private insurance—the Medicare and Medicaid subrogation rules take the plaintiff’s costs and other circumstances into account.

Medicare

In a case involving Medicare, the subrogation payout is set by a formula. The amount paid is reduced in proportion to the plaintiff’s attorney fees and expenses.  This is an attempt to account for the fact that the plaintiff incurs costs and attorney fees from pursuing a settlement or judgment.

Recent changes in Ohio Medicaid subrogation law

The rules for Medicaid can vary from state to state because unlike Medicare, which is a federal program, Medicaid is run by individual states. Some recent federal rulings have led to changes in Ohio law about Medicaid subrogation.

In personal injury cases where Medicaid had paid for medical expenses and the expenses exceeded the plaintiff’s settlement or judgment, Ohio law used to provide that 50% of the plaintiff’s recovery represented medical expenses applicable to medical bills. But in many cases, a smaller percentage of the plaintiff’s recovery represents medical expenses, and the larger percentage compensates for pain and suffering, or other costs. That meant that it wasn’t especially fair for a Medicaid subrogation claim to be based on 50% of the plaintiff’s recovery when only a fraction of that was intended to compensate for medical bills.

The U.S. Supreme Court recently ruled that states can no longer require that a fixed percent of any recovery is subject to Medicaid subrogation. Subrogation payouts are applicable only to the part of a settlement that represents compensation for medical bills paid by Medicaid and not compensation for pain and suffering or other costs. The ruling is logical, given that subrogation is supposed to help offset the cost of medical care paid for by the government.

Also, this court ruling means that the subrogation amount must be in the proper proportion to the judgment, based on the facts of the plaintiff’s case. Attorneys can work to protect portions of the judgment from subrogation, and they can make sure there’s an administrative hearing if the proportions are disputed.

Getting the percentage right

Ultimately, our goal with Medicare and Medicaid cases is to make sure that when the subrogation formula is applied, it’s applied for the correct medical costs (not for unrelated expenses or ones incurred before or after the events for which the plaintiff recovers), and that it applies only to the appropriate portions of the recovery.

Subrogation involving private insurers can be very different, because the rules are part of each individual insurance contract and not set specifically by law. We’ll discuss that in a future post. But whether your case involves subrogation or not, give the Ohio civil litigation attorneys at Cooper & Elliott a call. We’re here to help.

The outcome of any client’s case will depend on the particular legal and factual circumstances of the case.

Subrogation in Personal Injury Cases – Why, and What Is It?

For people who have been harmed by someone else’s wrongdoing, a civil judgment or settlement is a crucial step towards healing. That healing includes the emotional release that comes from a court agreeing that they were not at fault, but it also includes the only remediation our court system is permitted to offer—money.

However, for many of those people, that financial relief could disappear suddenly because of a common clause in their insurance policy—the subrogation clause. In brief, subrogation allows an insurance provider the right to reclaim some or all of what they paid for medical care from a patient’s civil judgement or settlement. Medicare and Medicaid have subrogation rights under the law, and many private insurance policies have subrogation clauses in one form or another.  But that doesn’t mean you have no recourse.

Over the course of this 3-part series, we’ll be looking closely at what subrogation is, and how it can be minimized.

Subrogation in public vs. private insurance

To understand the details of subrogation, it’s important to first understand that there are two different kinds of insurance providers and they each handle subrogation differently. The first is public, funded by the government, through Medicare and Medicaid. Subrogation is part of the law for Medicare and Medicaid programs. In nearly all applicable cases, some subrogation money will be taken. Even after trying to negotiate the amount down, there’s often still a minimum amount these government programs will take, and there’s no escaping it. But at least for Medicaid cases, the law also caps the amount, which assures that the injured party will get to keep at least some of the settlement.

The other type of carrier is, well, everybody else—all private insurers. Although their right to subrogation is also governed by state or federal law, rules for subrogation primarily depend on the written terms in the insurance contracts these companies sell. Some contracts may say little or nothing about it (thus you may be able to avoid subrogation claims altogether). Others may contain some very potent language, and the insurer may have the right to take your entire settlement to cover the amount they paid out.

How is subrogation possible?

The most common reaction we get when people learn about subrogation is shock. It makes sense to assume the money you pay for insurance, either through premiums or taxes, is supposed to purchase coverage. It doesn’t seem fair for insurance companies to then take part of the judgement or settlement as well. The counter-argument is that you signed a contract and are therefore beholden to the terms of that contract—no matter how unfair they seem.

The problem is that you may not have had much choice in the matter. If you get your insurance through your employer (or the Affordable Care Act), it’s a take-it-or-leave-it situation. You, as a single private individual, can’t negotiate the contract language. You’re stuck with whatever subrogation rules are in the policy that covers you.

The idea of subrogation is that it will offset the cost of insurance and keep costs from going up. So it’s easy to understand why Medicare and Medicaid use it, since they’re funded by taxpayer dollars. It’s harder to see a good reason (for parties other than the insurer) for private companies to use it, because subrogation-friendly judgments have not kept the cost of insurance from rising. But whatever the reason for it, subrogation is a fact of life. Medicare, Medicaid, or your private insurance may be legally entitled to a portion of your settlement.

Civil litigation attorneys can help

The good news is that you may not be stuck. There are legal remedies that could help. In upcoming articles on subrogation, we’ll get into more detail about the specifics of public vs. private insurance subrogation claims and how they can be mitigated.

But if you’re caught in a subrogation mess right now, the Ohio civil litigation attorneys at Cooper & Elliott are happy to talk to you about it. Give us a call. We’re here to help.

The outcome of any client’s case will depend on the particular legal and factual circumstances of the case.

Positioning the Jury as the Protagonist

For personal injury and wrongful death attorneys, clear, effective communication is a vital element of any successful case. A key theme we’ve discussed before is how good communication with our clients enables us to seek justice and healing on their behalf. In this post, we’re going to examine effective communication from another perspective: that of the juror.

The story of a case

In a sense, communicating to a jury is much like storytelling. What we’ve found works best is to make jury members feel as if they’re protagonists in our client’s story. We want them to understand that while the story may have started with our client and the defendant, it’s now in their hands to determine the story’s ending. We remind them of the power they hold to change someone’s future.

How to tell the story

Many other attorneys may employ the tactic of showcasing their client’s struggles in the aftermath of the defendant’s bad behavior. This technique helps the jury understand the client’s injuries so the jury will want to act in his or her favor—which is a fine place to start, but we take a slightly different approach: we focus on the defendant’s conduct.

Especially in this world of conservative juries and the supposed need for tort reform, it can be extremely important to focus on a defendant’s wrongful conduct or detail the rules they’ve broken.  Juries need to understand why a defendant’s conduct violated the explicit or implied rules and standards that everyone expects all members of the community to follow to keep the community safe. So, during all parts of the trial—opening statements, presenting evidence, and closing arguments—we focus much of our storytelling effort on the defendant’s conduct and how it violated community standards.

This approach also makes sense from a purely legal perspective. In civil litigation, the plaintiff can’t ask jurors to put themselves in their shoes (what’s known as a “golden rule argument”), because judges want juries to objectively consider the facts of a case, rather than respond in an emotional manner. Concentrating on the defendant’s wrongdoing and how it violated community standards helps ensure objective decision-making.

Clarifying the rules

It’s important to establish and emphasize the safety rules in question, and then show how the defendant has breached those rules. “Safety rules” often take the form of laws or regulations designed to protect people in a community. Traffic laws, for instance, are well documented safety rules—an accident caused by a driver who runs a red light, is a straightforward example of a broken safety rule which results in negative consequences.

In other circumstances, when there isn’t a specific law or regulation to point to, the recognized standards in the defendant’s industry or community serve as the safety rules.  A plaintiff often establishes those rules through expert witness testimony.  In medical malpractice cases, for example, an expert witness—a competent general practice doctor or surgeon—can help the jury understand what standard of care should be expected in a given medical situation. And sometimes, even the defendant’s own employees or representatives admit that a certain safety rule applies.

By using testimony from expert witnesses and from the defendant’s own representatives to establish safety rules, we take a difficult concept that most jurors don’t have direct experience with and break it down into something they can understand.

Jurors: Voices of the community

We strive to present our case in a way that lets jurors see themselves as active protagonists in the story that results in justice being served. We reinforce that their role is more than just listening to two opposing parties presenting evidence—it is to act as the voice of their community, and in essence decide what their community’s standards of care and safety rules are and will be.

How we communicate this idea varies with the facts and nature of each case. For instance, we had a business case where one of the themes we emphasized was simply that there should be more morality in business. There had been so many stories in the news about businesses acting dishonorably that we decided to emphasize a community standard of not giving a “free pass” for wrongful conduct just because it occurred in the business conduct. We reminded jurors that through their verdict, they could act as the voice of their community and deliver a powerful message. Their message could establish that morality is important in their community—even in business—and that the community would not tolerate the type of conduct that the defendant tried to get away with..

That kind of power and responsibility can be an excellent motivator for jury members to do the right thing on behalf of our clients and their community.

Connecting through honesty

Finally, how we communicate to juries is just as important as what we communicate. As a trial lawyer, to be the most effective we must open up and connect with the jury on a personal level.

While legal argument is important in each case, we try not to hide ourselves or our clients behind complex legal language.  We let our personalities come through so we can connect with jurors as people. Connecting with someone this way leads to better communication, which in turn makes it more likely that jurors will understand your case.

Authenticity is something we pride ourselves on—a core principle of our firm, in fact—and it sets us apart from other trial lawyers. Other attorneys may also use some of the techniques discussed here, but doing so without establishing a rapport and personal connection with jurors tends to make those techniques ring hollow. Authenticity is key.

The outcome of any client’s case will depend on the particular legal and factual circumstances of the case.

For Justice in a Personal Injury Case, There’s No One-Size-Fits-All Strategy

One thing is consistent about our cases: no two are alike. That means we have to closely look at each personal injury case based on its own unique circumstances in order to best serve our clients. The case that follows is a perfect example. By looking beyond the conventional wisdom for such incidents and crafting a strategy based on the specific details of the case, we were able to help a young man find justice — and an opportunity to rebuild his life.

Steve’s life was changed forever

Steve Olson*, 21, was a student at Ohio State University. One night, as he was leaving a local bar on campus, another patron began yelling at him. Apparently the angry patron had mistaken Steve for somebody who had caused an argument in the bar.

The angry man rushed out of the bar’s back-patio emergency exit and shouted at Steve, and as Steve turned around the man sucker-punched him in the face. Steve fell and smashed his head on the ground, sustaining such severe trauma that doctors initially told his father he would likely die.

The good news was that Steve lived. However, he had lost all hearing in his right ear and much in his left, and he spent the next few years recovering from complications caused by the attack.

Identifying the negligence

Working as Steve’s personal injury attorneys, at first glance our next step would seem clear: pursue action against Steve’s attacker. But in the course of the events above, there was a crucial piece of information that changed our strategy. The angry bar patron didn’t just leave the bar on his own. The bar’s security personnel willingly allowed the enraged attacker to leave the bar through an emergency exit so he could chase Steve down.

Think about it: Why does a bar have security? To control crowds, make sure fights don’t break out, and ensure people don’t get hurt. But what happened on the night of Steve’s attack? A man was screaming over the fence trying to get at Steve, and rather than trying to calm the situation down, a security person opened an emergency exit and let the angry man run out.

We argued that the security person’s negligence was tantamount to putting a bullet in a gun, because his actions led directly to Steve being harmed.

Competing arguments: Where was the negligence?

When we sued, the bar and its liability insurance company refused to take responsibility for what had happened.  The insurance company argued that since Steve’s injury clearly hadn’t taken place on the bar’s property (it had been outside, near a public street), any negligence by the bar also hadn’t occurred on the bar’s property. By this logic, the bar — and the insurance company — would be off the hook for damages.

And truthfully, other personal injury lawyers might likely have looked at this case and agreed with the insurance company.

That didn’t seem right, so we made a creative argument. While the injury might have occurred off the property, the negligence occurred on the property when that bar’s security personnel allowed a large, drunken, hostile patron out through its emergency exit. Once the insurance company’s lawyers realized there was a good chance our argument would win, the insurance company settled the case.

The result? Steve received a substantial settlement without having to fight in court, which could have taken years to finalize. Steve’s attacker also spent some time in jail for the assault.

A personal injury case’s best outcome

While a substantial settlement sounds good, that money actually supports the real victory. A permanently impaired young man — someone who couldn’t get back to college, who almost died, and who had lost two years of his life — now had the means to get back on his feet again.

And justice wasn’t important only to Steve. Throughout the whole ordeal, his parents and siblings had been through an emotional wringer. With the settlement and end of the case, they too could breathe a little easier about Steve’s future.

Getting involved

This personal injury case was significant to us for a couple of reasons. First, it reaffirmed how justice can be served by creative thinking, a close look at the details, hard work, and going the extra mile.

Why did we go that extra mile to find justice for Steve?

The answer: personal involvement. When we took on Steve’s case, we also took on Steve and his family. We watched their struggles, tried to understand their pain, and provided moral support and advice wherever we could. We did our best to see the situation through their eyes.

When you make the effort to stand in somebody else’s shoes after such a tragedy and fully understand what they’re going through, you become invested. That is why we take on personal injury cases like Steve’s, and that is why we exhaustively look for any possible way to ensure our clients receive the justice they deserve.

It’s what any of us would do for the people we care about.

*Names in this article have been changed to protect our client’s privacy. 

The outcome of any client’s case will depend on the particular legal and factual circumstances of the case.

How One Personal Injury Case Changed Lives Across Ohio

One memorable personal injury case involved Maureen and Rick Evans*, who got into a seemingly mild car accident one day. It was the kind of thing that could happen to anybody – a low-impact bump. The other driver was at fault, but it seemed like no big deal. Maureen hit her head on the passenger door and felt a little dazed, but she seemed unhurt otherwise and didn’t feel like she needed to go to the hospital.

No one knew at the time that Maureen had actually suffered a traumatic brain injury. After a few weeks, it became clear how serious her injury was. She had trouble getting out of bed. She couldn’t be in a lighted room. She developed short- and long-term memory problems. She eventually spent years in cognitive rehabilitation re-learning to read – and even to think – the way she once had been able to.

A spouse’s love vs. a state law

When Cooper & Elliott joined Maureen’s team, we faced several challenges. The first obstacle was the insurance company’s insistence that the accident hadn’t been serious, and that none of Maureen’s problems surfaced until long afterward. The second obstacle was even bigger, and it had major implications for Maureen, Rick, and every other Ohio couple involved in a personal injury case.

Because Maureen was injured so severely that she could no longer take care of herself, Rick made the difficult decision to quit a lucrative job to care for his wife. We wanted to make sure Rick would be compensated for what he had given up – after all, Ohio law would have allowed compensation for hiring outside nursing help for Maureen.  But Ohio law didn’t allow someone who wanted to personally care for his injured spouse to force the wrongdoer to pay for the income the caregiver would lose.

That didn’t seem right.

After much persistence and through a ruling by the Ohio Supreme Court, we were able to establish that if one spouse must forego earning a living to take care of the other spouse, the caregiver is entitled to the reasonable value of the nursing services for the care provided, including the income lost while doing so.

Because of this ruling, when people in Ohio choose to give up their jobs in order to personally care for a spouse who was injured by someone else’s carelessness, they no longer have to give up the income they would have earned. Rick just wanted to care for his wife without jeopardizing the family’s finances, and now he and others like him can do just that.

More than money

Money aside, there’s a broader benefit to Maureen and Rick’s case. The court ruling ultimately helps promote closer marital relationships. It enables spouses to do what spouses should do, which is take care of each other. Today, Maureen is much improved. Recently, Rick was diagnosed with Parkinson’s disease, and because of the care Maureen received now she’s able to help take care of him.

There’s no denying that there’s some sadness in Maureen and Rick Evans’ story. But it’s an uplifting story, too. And it’s a point of pride for the Evans and for us at Cooper & Elliott that other Ohio attorneys handling personal injury cases now use the ruling from Maureen and Rick’s case to help other families in the same difficult situation.

*Names in this article have been changed to protect our client’s privacy. 

The outcome of any client’s case will depend on the particular legal and factual circumstances of the case.

Touching Lives: The Human Inspiration for Us as Personal Injury Attorneys

If you ask personal injury attorneys what motivates them in their profession, chances are you’ll hear a range of responses, from the pursuit of justice to winning big settlements. But one of our most compelling reasons for doing this kind of work is the genuine desire to help people in need—to help a person put his or her life back on track after a devastating event. Here’s one of those stories.

David: In Need of a Personal Injury Attorney

A few years ago, David* had a lawsuit pending in Federal Court, and he urgently needed a new attorney.

His case, involving police misconduct, was shocking. He had suffered a spinal injury from officers who mistreated him while he was in handcuffs. Temporarily unable to use his arms or legs, he had literally been dragged into a jail cell by the police as he yelled for help, telling them that his neck was broken. Eventually a civilian employee at the jail, breaking down in tears, convinced a supervisor to bring in medical help. David was transported to a hospital, where a neurosurgeon was able to preserve his ability to use his legs and arms—but only partially. Because of this incident, David suffered permanent nerve damage that would limit full use of his limbs for the rest of his life.

As troubling as this story was, we wanted to take David’s case only if we could make a difference. Deadlines were approaching very quickly, and court orders said that his case would soon be dismissed. But we also realized that, through no fault of his own, David wasn’t getting adequate representation. His personal injury attorney at the time, while very knowledgeable in general, simply didn’t have experience in this area of law. We did, so we jumped in with both feet.

Experience Makes the Difference

Once we got involved, we quickly went to work on a number of fronts:

  • We obtained more time. We approached the court to arrange for more time so we could identify experts and comply with the court’s order. Extra time would be crucial for us to address and present the merits of David’s case properly. Fortunately, the court agreed.
  • We located experts. Because of our experience in this area, we knew of well-respected national experts who could assist us in what looked to be a technically-challenging case. We needed medical experts. We needed people with expertise in determining how much force is considered excessive for the purposes of law enforcement. So we lined up specialists capable of providing valuable, authoritative testimony.
  • We took police testimony. When we took the case, no testimony had been taken from any police officers. Based on our experience, we knew what questions had to be asked and what answers had to be obtained in order to hold the right people responsible for David’ injuries. Having control over that gave us a considerable advantage when preparing for trial.
  • We researched the case thoroughly. Even in areas of case law in which we have vast experience, we prefer to go back to the books, research the cases, and ensure that we’re fully up to date so that when we do take testimony from witnesses, we’re asking the questions we know the court or jury would ask.    
  • We understood the full extent of damages. We prepared to address some very sophisticated legal arguments: How is excessive force defined? Was excessive force used in David’s case? If so, what are the right damages? A personal injury attorney has only one opportunity to get this right. It’s critical to know the full extent of a client’s harm and, most importantly, how much it’s going to cost to care for our client for the rest of his or her life.

David: Not Just a Case

We also helped David in a less tangible, but perhaps even more meaningful, way: we treated him like a human being and not just a ‘case’.

David was a fairly young man with few family members to support him, disabled by the police, and worried about how he would care for his children. His life had taken a dramatic negative turn. That’s a scary place to be, and something no person should have to manage alone.

Throughout his case, and even afterward, we became David’s closest confidantes —friends, sounding boards, people he could trust. That extended to our entire firm as well, with David becoming a part of our family throughout the course of the lawsuit.

Sure, talking to experts and writing briefs is important, but often our job is also about spending hours counseling our clients, offering compassion, and just helping them navigate a terrible chapter in their lives.

Fortunately, our involvement brought a happy outcome. We successfully reshaped David’s case and got it ready for trial. Literally days before the trial was scheduled to start, the police department asked to settle the case for an amount that ensured David could care for himself and his children for the rest of his life. 

Bending the Arc of Justice

It was gratifying to know we had helped bring some form of justice — or at least accountability — in the wake of David’s mistreatment. But consider where he would be now without having had experienced representation. What would his life be like? What would life be like for his children?

We took a case that had literally been on the brink of failure and turned it into a multimillion-dollar recovery that’s being used to care for a person who was severely and permanently injured. That’s what motivates us most as personal injury attorneys. For all the legal victories, it’s the important human stories behind them that inspire us most.

Martin Luther King Jr. once said, “The arc of the moral universe is long, but it bends towards justice.” Sometimes we have to pound like heck on that arc just to get it to bend even a little. But it’s awfully gratifying when you know you’ve played a role in pointing it in the right direction.

*Names in this article have been changed to protect our client’s privacy. 

The outcome of any client’s case will depend on the particular legal and factual circumstances of the case.

Healing the Scars: Helping a Car Accident Survivor Move Forward from a Devastating Crash

How many times have you hopped into your car with friends or family to go get something to eat? Would you ever imagine that one of those times a member of your group would be killed in a car accident, and that you would have to bear the scars of the tragedy for the rest of your life?

Sarah Alvarez* never imagined such a thing would happen—until a negligent uninsured motorist changed her life forever. 

Five people were in the car: Alice* (Sarah’s sister), who was driving; Sarah, riding in the passenger seat; and Alice’s three children, riding in back.

The uninsured motorist hit them head-on, killing Alice on impact. The tremendous force of the collision caused Alice’s car to roll over several times and Alice’s body to come free from her seat belt. As the car came to rest on the passenger side, Alice’s body landed across Sarah, who was trapped in her seat. Sarah had to wait for what seemed an eternity, her sister’s lifeless body lying across her, before they could be freed from the wreckage.

Amazingly, there was some good news: The three children in back escaped physical injury, though they now faced the prospect of life without their mother. And Sarah, in spite of the nightmare she’d endured, also emerged with few physical injuries, save for a large gash across her forehead.

But the physical scar from that wound, not to mention the emotional scars from the whole experience, would remain with her long after the accident.

A Life Changed Forever

We sought compensation for Sarah based on the scar she sustained and the emotional nightmare associated with it. Every time she looked in the mirror and saw the scar at the top of her forehead, she relived the accident, the memory of her sister lying lifeless on top of her, of being trapped there, helpless to do anything for Alice.

The heartbreak and anxiety resulting from the crash was obvious. Sarah was no longer the bubbly, energetic teenage girl she’d been before the accident. Now she was downcast, rarely looking up at people, and extremely self-conscious about that scar, always trying to hide it with her hair.

Car Accident Victims vs. Insurance Companies

On behalf of Sarah, we first sued the driver who hit Alice’s car, but he was uninsured.  That forced us to sue the insurance company that had issued Alice and Sarah their uninsured motorist coverage. This might seem a bit odd—suing your client’s own insurance company—but it’s common in personal injury or car accident lawsuits.

In our experience, no matter whose insurance company it is, at the end of the day an insurance company is interested in one thing: making money. Even if you’ve been a loyal customer paying premiums on time over several years, and even if you’ve suffered serious injuries, they will do their best to pay out as little as possible on your claim.

Sarah’s insurance company initially offered her $10,000, which was a ridiculously low sum given what Sarah had endured—and what she still faced going forward. So we chose to let a jury decide what was fair. At trial, the insurance company’s lawyer downplayed Sarah’s scar and told the jury that it was hardly noticeable. We reminded the jury that a scar is only small when it’s on someone else’s face. The jury gave the highest verdict for a case involving a scar in the county’s history.

Obtaining the Greater Good

While we were happy with the jury’s verdict, our satisfaction really had less to do about the size of the award, and more about obtaining justice for a young woman devastated by a car accident. We hoped we could help bring some measure of closure so she could move forward.

All of this should be no surprise. When you put yourself in the shoes of clients and start to feel what they’re experiencing—all of the emotions, the grief of losing a loved one—you can’t help but be moved to do everything you possibly can for them.

And we weren’t the only ones moved by Sarah’s situation. One unforgettable scene at the end of the trial really hit home how much Sarah had been affected, and how much others wanted to help. After the jury found in Sarah’s favor, some women from the jury came down from where they’d been seated, hugged her, and said to this dejected, self-conscious young woman, “Listen. You look up at people. Look them in the eye. You’re a beautiful young girl and don’t let anyone tell you otherwise.”

It was a powerful moment.

A Young Life Moves Forward

Helpful, supportive words like those, as well as the closure that comes from seeing justice done, have had a wonderfully positive impact for Sarah as she’s struggled to create a new life for herself after surviving the car accident.

She’s since finished school and entered the workplace, and she’s done the best she can to put her tragedy behind her. We still talk a lot with her brother, Andres*, and he tells us she’s doing well.

And that’s really all we can ask for. Let’s face it: After a traumatizing experience like what Sarah went through, nobody can expect her to simply forget what happened. It will always be with her on some level—just like that scar.

But the positive outcome in a case like this often enables people who’ve suffered horrible tragedies to recognize that they’ve done everything they can for their lost loved one and their family, and it’s OK to move forward. 

*Names in this article have been changed to protect our client’s privacy. 

The outcome of any client’s case will depend on the particular legal and factual circumstances of the case.

Personal Injury Mediation: A Viable Alternative To Deadlock Negotiating

describe the imageWhen it comes to personal injury litigation, some people turn away from the process due to its potential to be expensive, stressful and time-consuming.

However, in recent years, personal injury mediation has become common in these types of cases. A large percentage of civil cases settle, in turn making mediation the most common settlement technique.

Personal Injury Mediation: What Is It?
Mediation occurs when a third party (mediator) facilitates a discussion with the sole purpose being to settle the case. The third party is typically a personal injury lawyer who has experience trying these types of cases for plaintiffs, defendants or both.

Mediation is an entirely voluntary process. If mediation does not work – meaning both sides of the dispute cannot reach an agreement – the only consequence is that the litigation continues. Since nothing either party says during mediation is usable by the other party in later stages of the dispute, there is no downside to mediation.

Mediation: First Steps To Ensure Settlement Success
The key to any personal injury settlement is not simply to settle the case, but to get the highest value possible. Here’s what you need:

  • Select A Strong Mediator: Look for a professional mediation service, staffed by full-time mediators who have both mediation experience and a legal background or identify individual mediators that have a long track record of successful mediation experience.
  • Select The Right Counsel For Your Case: This means finding a well-seasoned personal injury attorney who the other side fears.
  • Conduct In-Depth Preparation: Deep knowledge of the strengths and weaknesses of your case, along with a total understanding of all the defenses are crucial to a successful outcome.

Work with your lawyer to determine the best possible personal injury settlement scenarios to push during mediation.

During your personal injury mediation process, your lawyer needs to educate the mediator as much as possible before the mediation date. This must be done so the mediator understands the defense pressure points and the objectives to achieve in any settlement. Preparation and education will also help facilitate a smooth process the day mediation begins. We prepare power point presentations and detailed mediation statements to help ensure success at mediation.

The Benefits (And The Barrier) Of Personal Injury Mediation
Pro: When you reach a stalemate in your negotiations with the insurance adjuster, mediation is a way to break the impasse.

Pro: When you sit across the table from the insurance adjuster, you’ve put a human face to your set of personal injury claim documents. Because of this, they are more likely to understand the risks of a jury trial by putting a face to the tragedy.

Pro: The third-party mediator encourages a break in any deadlock, so the whole process is typically faster, easier and less expensive than taking your case to court.

Con: Because both parties must agree to mediation, it is sometimes difficult to get an adjuster on board due to the extra steps involved, including that crucial personal appearance.

Where Do You Draw The Line Before Deciding To Mediate?
You’re going to need legal counsel with a personal injury background, as well as a professional mediator, if any of the following scenarios have the parties at an impasse:

  • The insurance company has not offered anything close to fair personal injury compensation.
  • The major dispute involves the extent of your personal injury and to what degree each party was at fault.
  • You see no other avenues for negotiating, beyond taking your claim to a jury.

If you’ve suffered a personal injury, the law reserves you the right to certain compensation that helps you pay for time lost at work, medical bills and any loss of life enjoyment. You deserve to have the truth about your personal injury revealed as well as a settlement that assists in your path towards recovery.

Personal injury mediation has revolutionized the legal system as a viable alternative to achieve desired results, without the expense and complex battles of a court case.

Would you like to learn more about personal injury mediation and partnering with the right attorney to guide you through the process? Call 614-481-6000 or click on the button below to speak with a Compassionate Consultant at Cooper & Elliott.

Right the Wrong