How Do You Measure a Life?
Despite what some people may believe, the first thing out of an injured client's mouth upon meeting with me is not "how much money can I get?" Frankly, if it was, I likely wouldn't be interested in representing that client. In fact, it is not until I begin the conversation with them, usually prompted by some contact with the insurance adjuster for the other side, that the topic of compensation arises.
Something that most people (and even some out of state lawyers or lawyers who do not handle this kind of work) do not realize is that at the time of trial in a personal injury case, we cannot ask for a specific amount of money from a court or a jury to make up for what happened to an injured person. We can't even tell the jury that 1) there is insurance (although most people kind of figure this out) or 2) how much insurance there is. All that we are permitted to tell the jury is that they are responsible for deciding how much money an injured person should receive for what happened to him. All they are allowed to consider are the harms and losses to that person. That's it. Nothing else.
But for pre-trial settlement purposes, how do we measure the value of a personal injury case? A number of different factors weigh into this analysis and here are some of them:
1. Who's fault was the accident? Liability is the first question I have to answer for a jury if and when a case goes to trial. If an accident is caused by the injured person, there is no need for me to continue the conversation. For one thing, I can't take that case on and represent that person. If you cause your own injury, you are not entitled to compensation (except in super rare instances that I'm not going to bother discussing here). Liability has to rest with some other person or entity. An accident needs to be through no fault of the injured person (or limited fault at most) in order to even have a case worth pursuing. So as long as we know someone else is responsible for the bad thing that happened, we are in good shape.
2. What are the extent of the injuries? This is a little tricky and relies heavily on objective medical evidence which includes Xrays, MRIs, CT scans and other diagnostic tools that can show an injury to a doctor. If a client has broken a bone, that bone will likely and hopefully heal with the right treatment. But some injuries, like injuries to the spine in the form of herniated discs or even bulging discs in some instances, tend to be permanent injuries. A permanent injury has greater "value" than an injury that can be healed or cured. And that just makes sense because the impact on a person's life will be more significant when they have a permanent spinal injury in their neck vs. a broken arm.
3. What are the harms and losses? Harms and losses are the things that throw a person's life off balance resulting from an injury. If you think about an injured person's life as the scales of justice, for every bad thing that has resulted from a car crash; pain and suffering, the inability to take part in activities and hobbies, the loss of the enjoyment of life, etc..., compensation has to weigh as much as the harms to bring the person's life back into balance. A jury's verdict has to weigh as much as the harm done.
Everyone's life is different - what we do, how we live - so how an injury affects a person's life is going to be an individualized analysis. At least in my geographic area, injured people who give up their life activities and stop working are not well compensated by juries. But injured people who try to continue their lives despite their injuries, limitations and discomfort tend to obtain better results at trial. I think this has to do with the fact that no one likes a quitter - hard work is rewarded. Obviously, in some cases, working becomes impossible for some injured people, or at least working the job they had - especially when an injured person owns their own business or it's physical in nature. By and large though, a client who describes their life as full and active before a car crash and almost completely empty after, despite a zillion attempts to perform household and recreational activities with their family, tends to do better in front of a jury.
4. What are the policy limits? As I have said before, this is an insurance world, we just live in it. The policy limits of both the person who caused the crash and the injured person weigh into the analysis of settlement value. If the person who caused the crash (lets call him the "tortfeasor,"because that's what we learned to call that person in law school) has a liability policy of insurance on his vehicle of $100,000.00 per person and the injured person has an underinsured policy with $250,000.00 with his insurance, the available insurance coverage in NJ is $250,000.00 because we go with whoever has the higher amount. So if a person is significantly injured, they can conceivably collect $100,000.00 from the tortfeasor and an additional $150,000.00 from their own policy. This is a pre-trial resolution without the necessity of hiring many experts or incurring much expense. Of course, most cases do not resolve very quickly or easily, but at times we are guided by the policy limits in the case as we attempt to resolve the case without the necessity of litigation.
5. What are the jury verdicts or settlements in our area for similar cases? In order to determine a range of possible settlement values, smart lawyers always do (or should always do) a jury verdict search to determine the ranges or possibilities of a verdict. We look up similar injuries, demographic information and the like to get an idea of "what a case is worth." Again, every case and every jury is different so being definitive is not possible. However, researching prevailing values of settlements and verdicts can help resolve a case with an insurance company for the policy limits. It can also help maintain a substantial verdict if the defense appeals it on the premise that "it's too much money."
When you are living with a permanent injury that you got because someone else was negligent, it's really a life sentence to live with pain, discomfort and limitations. I tell clients and juries alike, "If we could go back in time and stand at Bob's front porch on December 13, 2015 and tell him, 'Bob, if you leave the house now, you will be involved in a bad car wreck that will change your life forever,' we would do that, but we can't. The best we can do and the best our system of justice allows is to help balance the harms and losses in Bob's life with a money amount equal to those harms and losses."
Our current system of injury compensation in NJ is largely based upon available insurance, unless you are unfortunate (or fortunate) enough to get rear-ended by a Vanderbilt or a Kennedy or someone with substantial assets. Ultimately, a time machine where we could go back and change the history of a crash or a fall would be the way any of my injured clients would prefer to deal with their claims. No one wants to live with a permanent injury. The struggle is with the insurance companies to get them to fairly evaluate and compensate an injury claim; the insurance industry for unfairly trying to poison our jury pools, spreading propaganda about "fraud" or "mayhem;" and then with the jury to offer enough information allowing it to compensate an injured person in a way that will bring their life into balance.
This is a challenging struggle to which I have devoted my career, pursuing justice and fairness on behalf of injured people. On one hand, I'm somewhat glad the insurance companies are so unfair at times because their "no pay" or "deny, delay, defend" attitudes provide me with a job. On the other hand, I kind of want to send some of the remote adjusters who refuse to be reasonable a tray of cookies laced with laxatives. Luckily for them, I don't bake.
In NJ, car insurance is mandatory. Not having car insurance can result in huge financial penalties, loss of drivers licence and even jail for repeat offenders. And as we are all too aware, car insurance in NJ is not cheap, especially if you have kids or you are a driver under 25.
When someone purchases an insurance policy, that person expects that they will be covered in their time of need. All too often, insurance companies do not play fair. They deny claims and medical treatment for seriously injured people, they delay payment and the resolution of claims and/or they defend those claims unnecessarily to avoid paying an injured person the benefits to which he/she is entitled under their policy for a valid claim. This trend began in the mid 1990's by companies like All State Insurance who recognized they could make a lot more money holding onto benefits and forcing injured people to have to sue them and win at trial just to receive the benefits they deserve.
The insurance companies engaged in an unrivaled propaganda campaign to provide the public with the impression that people who sue in car accident cases are either lying completely (fraud) or not all that badly hurt (ever see the All State head on car crash commercial, where everyone walks away just fine? Yeah, that doesn't happen in real life- people get hurt, badly.) These disingenuous efforts by the insurance industry were meant to mislead the public and fuel the call for "tort reform" because juries are "out of control" with their awards.
In NJ, when a person is forced to sue the person who caused an accident and injured them, although the suit is against the person who caused the crash ("tortfeasor"), that person's insurance company actually defends the case. This is because the tortfeasor has a certain limit of insurance through their liability policy that is designated to pay an injured person and protect the personal assets of the tortfeasor.
Therefore, when the insurance carrier is doing it right, so to speak, the assets of the person who caused an accident are protected simply because they have insurance. But the insurance carrier must act in good faith to resolve the case against the tortfeasor, their insured, within the policy limits. If the insurer does not do this and as a result a jury awards more money to the injured person than the insured torfeasor has in policy limits, the insured person has a bad faith claim against his insurance company because now his personal assets are at stake.
This bad faith law protects both injured people and the insured, holding the insurance companies accountable for resolving claims reasonably.
But unfortunately, this concept currently does not apply to an injured person's own insurance and that is what A-4293 seeks to rectify. Currently, if an insurance company acts unreasonably in delaying payment or denying a valid claim, even if it breaks the law in doing so, under the law of NJ, an insurance policyholder has no effective remedy. This happens often in cases where the person who caused a crash either does not have insurance (Uninsured Motorist or "UM") at all or a policy not significant enough to cover the injuries (Underinsured Motorist or"UIM). In that instance, an injured person must look to the UM or UIM benefits of their own policy to compensate them for their harms and losses and injuries.
Under A-4293, if an insurance company acts unreasonably, a policyholder can sue for his benefits, attorneys fees and treble (triple) the damages. The treble damages measure is similar to what is allowed in the Consumer Fraud Act law in NJ and seeks to deter insurers from acting unreasonably in the first place. This bill creates a warranty against insurance companies committing bad faith against its own policyholders.
Often, when injured people are delayed in receiving the benefits to which they are entitled, they become financially burdened with out of pocket medical expenses, loss of income and employment, which then results in issues with other bills and creditors. Their life, through no fault of their own, becomes a frustrating nightmare while the money they should be receiving is collecting interest for the insurance company. The current state of the law does not allow any redress for this type of bad treatment by the insurance company that is just polishing its own bottom line.
In the 9 states that have already enacted a 1st Party Insurance Bad Faith Law, like this one, insurance claims are paid more quickly and there are fewer lawsuits and cases of actual fraud. (Fraud happens; not nearly as often as the insurance industry would have us believe, but it does.)
Insurance customers, who like in NJ are required to buy auto insurance, are entitled to have their claims resolved in a fair and equitable manner without unreasonable delay and the need to seek redress when an insurance company doesn't play by the rules. Perhaps with a law, like A-4293 in NJ, the playing field will finally be equal.
I urge anyone who has or had a claim against an insurance company, or attorneys who represent injured people, to reach out to your local leaders and ask that they consider and support A-4293 as it heads into the NJ Assembly.
Thank you to the New Jersey Association for Justice and President Lynne Kizis for their research and hard work in providing much of the information contained in this post. And thank you to the NJ Senators and Assemblymen/women for sponsoring this bill and helping to protect people's rights. For more information on this bill and other bills that affect NJ residents, visit
All Lawyers Are Not Created Equally - How to Find the Right One For Your Injury Case
On more than one occasion over the course of the last year, a potential client has scheduled a consultation with me because she is unhappy with the work her current attorney has been doing or not doing on her case. (I say "she" because for some odd reason, the majority of these instances have been women dissatisfied with their current attorney. Not all women, but mostly.) Sometimes, folks just want a second opinion- "is my lawyer handling this right?" Because I truly do not want to take money away from my brothers and sisters of the bar, and I also do not like to take on cases that are already in or through the Discovery phase, I'm happy to offer my two-cents and confirm that, "yes, this is typical of how this goes," "or yes, from the information you are giving me, that sounds like a fair offer and your attorney is right to recommend it."
However, too often, a "second-opinion" is not why the potential clients are seeking out my services. They feel something is not right with the way they are being treated by their lawyer and their case being handled, and unfortunately, they tend to be correct.
"I don't get it. He did such a great job on my closing/divorce/will..." And there lies the issue: not all lawyers are created equally. I'm not comparing people, mind you, although of course, skill levels among attorneys as in any profession, varies. But I am saying that personal injury cases require attorneys that have obtained a certain skill set and knowledge base that differs from the skill set and knowledge base they would need to handle a residential real estate closing, for example. The idea that lawyers can be "general practitioners" in this day and age of tort reform and complicated statutes and legislation is really a falsehood.
In my dad's day as a lawyer, he could handle different practice areas - everyone did back in those days. The stakes weren't as high even when you took a case to jury verdict. My dad handled personal injury because back then the laws weren't so favorable toward insurance companies. You got injured, you got a settlement. It was all pretty easy.
But today, in order to properly handle a personal injury (PI) case, especially a case resulting from an auto crash, you need experts to prove the injury is causally related to the crash and typically that it is a permanent injury. That costs money - a lot of money, and that money usually comes from the pocket of the lawyer until the case is resolved. If you are a solo practitioner with a small practice, paying out thousands of dollars in expert fees on one case is a scary proposition when you may or may not succeed in recouping that expense at the end of the case.
An attorney handling PI should also be a trial lawyer and not all lawyers ever try cases in front of juries. In fact, most don't. Trial lawyers are unafraid to roll the dice and take that chance that they will succeed at trial on a case and therefore tend to have a clear path to resolving a case and maximizing the recovery. Whereas, an attorney unfamiliar with trial work and litigation may not have a clear idea of the value of a claim or injury, how to prepare the case if it does not settle before the 2-year Statute of Limitations runs out, and in many cases, will attempt to convince the injured client to accept less money than her case is worth simply to avoid the time and expense of litigation and trial. An attorney undervaluing a case is the most typical reason an injured person may come to me for a "second-opinion."
"It just doesn't seem like enough. I have to live with this for the rest of my life and he told me to take the $20,000.00 offer." An attorney accepting significantly less than the true value of a claim to avoid a trial simply because he is afraid to go forward is an incredible disservice to the client and other attorneys who handle these cases.
A scary problem for lawyers who take on PI cases thinking they can handle it is when they do mishandle it resulting in a legal malpractice claim. Potentially, this is what has happened in a case that came to me for a "second opinion" and "I want to fire my lawyer, can you take my case" situation. Unbeknownst to the client, her case was already dismissed. From what little I could tell, it was dismissed because the lawyer didn't work hard enough or perhaps know what needed to be done to avoid dismissal. And this woman has a permanent injury through no fault of her own!
My advice to injured people is do a little research. Go beyond just a Google search for "injury lawyer in my area" and dig a little deeper. Review their website- do they have a professional website? Are they included on the Super Lawyer list for their state in Personal Injury Law? Do they lecture or teach other lawyers about handling cases and trials? Do they personally handle cases in 6 other practice areas in addition to PI? That can be a tell-tale sign of a "dabbler" and you want an expert, not a dabbler. Ask your friends, family, neighbors for recommendations. And when you meet the lawyer, ask a lot of questions and if it doesn't seem like the right fit, you need not sign anything. Keep looking.
For attorneys who are handling PI cases, please go seek out all of the resources you can to learn how to properly handle an injured person's case. Maybe ask to co-counsel with a well known, successful trial attorney. Sign up for the seminars and workshops on handling injury claims. Call a colleague who more regularly does this work and ask questions. Or refer the case out to give your client the best chance at success.
An attorney who may have done a great job resolving your divorce ten years ago may not be equipped to successfully handle your injury claim. It's so important to know the difference.
We all have done it at one time or another; our phones buzz or ding indicating a text message has been received and for some reason we have to read it and respond at that moment despite driving 55 miles per hour on the highway in fairly steady traffic. We see other drivers with their eyes on their iPhones instead of the road ahead and we all think “what a jerk,” and then two minutes later Jimmy is texting that he needs to be picked up from soccer practice NOW and “where are you mom?” And we feel compelled to respond so Jimmy knows we are not neglecting him (the line at Starbucks was just longer than usual for this time of day.)
And while perhaps this scenario seems a little humorous and close to home, the fact remains that it can also be devastating. According to the National Safety Council, cell phone use while driving leads to 1.6 million car crashes a year and 330,000 injuries. Further, texting while driving is six times more likely to cause a crash than drunk driving.
We all agree that texting and driving is a dangerous and reckless activity and most people tend to agree that as responsible drivers, we should never do it, and certainly when we see someone else on the road texting or talking on a cell phone, we often become angry and outraged. How dare that woman put us all at risk?! And then we are asked “where are you? When will you be home?” from the wife/husband/kids who we know are freaking out because dinner is getting cold so we feel compelled to respond.
With staggering statistics and an obvious danger to ourselves and others on the road, it’s time to put our phones away when we’re driving. Many drivers are distracted by just knowing that a text message has come across their phone. There are several ways to prevent this distraction including switching the phone to “Airplane” mode, turning it off completely, or downloading apps that send messages to would be texters and callers that you are driving. iPhone recently added this capability in the last IOS update and Samsung users have already had this option. It’s time we use them.
When a distracted driver causes a crash and injures someone that we love, we are understandably angry because they “should know better” and should have followed the rules. In order to keep our communities and our roadways safe for everyone, it is important for all of us to commit to follow the same rules. Let’s put our phones away – that text can wait.
For more information on safe driving laws in your state, visit: http://www.ghsa.org/state-laws/issues/Distracted-Driving
Drivers of commercial vehicles like tractor-trailers are required to take special care on the roadways to protect themselves as well as other vehicles on the road. When a driver of a commercial truck does not follow safety rules and injures occur, that driver and the company for which he/she works is responsible for that injury.
Large trucks are involved in thousands of crashes that kill or cause serious injury to people every year. If you have been involved in a wreck with a commercial truck where you were in no way at fault, there is a good chance you are entitled to compensation.
There are many factors that cause accidents and fatal crashes on our roadways and highways.
Truck Drivers have Standards and Regulations They Must Follow.
The trucking industry is very heavily regulated in order to protect truck drivers and other drivers on the road. Tractor trailer drivers must follow special precautions and rules when on the roadways in order to ensure the safety of everyone on the road.
Despite these heavily regulated standards, large trucks are involved in thousands of crashes that kill or cause serious injury to people every year. If the safety standards established by the national and statewide departments of transportation are not followed, and as a result another driver is injured, the truck driver or the trucking company is responsible for any injuries that are caused.
5 BASIC SAFETY STANDARDS FOR COMMERCIAL VEHICLES
1.Truck drivers are only allowed to drive a certain number of hours per day.
Tired truck drivers are a major cause of harmful and sometimes deadly truck crashes. Trucking companies must comply with the standard hours set to regulate driver safety. If a driver is permitted or forced to drive more than the regulated hours due to delivery deadlines and a crash occurs, the driver and trucking company can be held responsible.
2.Truck drivers are required to use "extreme caution" or stop driving during bad weather.
Bad or extreme weather can occur during any point of a truck driver’s route. The standards are set that the driver must slow down or stop driving in order to avoid losing control and crashing the vehicle. If a truck driver continues to operate in extreme weather such as heavy fog, snow storms, rain storms etc. without adjusting their driving speed and having caused injury, the truck driver and the trucking company can be held responsible.
3.Trucking companies are required to maintain and repair their trucks.
Defective brakes and tires and inadequate lighting are leading causes of major accidents involving trucks. Truck drivers and trucking companies are required to repair mechanical defects and maintain safe vehicles under the regulation standards. If these vehicle standards are ignored and trucks are not maintained they add to the chances of a serious accident occurring.
4.Cargo in or on a truck must be properly secured.
Cargo in or on a truck must be secured following the regulation standards set in order to ensure that trucks are safe from tipping or from spilling their cargo. Trucking companies that allow their trucks to go out on the road without correctly securing or balancing the load create a dangerous condition for drivers and can be held responsible for any injury their truck or cargo causes.
5.Truck drivers must park their trucks and trailers in safe designated areas.
Truck drivers who park their trucks and trailers in the path of moving traffic can cause deadly crashes. The standards require that a trucker must place warning triangles or a flagger to alert drivers who might come upon the unexpected obstacle in their path.
Standards and regulations for truck drivers are set up to establish safe driving conditions for everyone on the roads. Most truckers are professional drivers who follow these standards but unfortunately, some are irresponsible or inexperienced. Truckers must adhere to these standards and trucking companies must be selective in hiring drivers with a great driving record, committed to the professional standards and responsibility of driving these large vehicles.
All drivers must follow the rules of the road. If those rules are broken and an injury occurs, the driver who has broken those rules is responsible for the injuries that result.
We all try to adhere to these standards that are set up to keep all drivers safe. However, motor vehicles crashes happen every day because of drivers’ careless choices. Understanding what is at stake when you are injured by someone else in your car, you can make decisions that will make the process of recovering, both monetarily and physically, easier.
Here are a few things to keep in mind:
Auto Insurance companies do not play fair.
Auto Insurance carriers are supposed to pay benefits to injured motorists whether it is their insured who has been injured (UM/UIM) or if their insured injures someone else (Liability). Often, they deny the claim or undervalue the treatment required by the injured party. Most often when a case goes to court it is due to the injured party simply trying to receive compensation from an unfair insurance company who denies the extent of responsibility.
When a motor vehicle accident does occur dealing with the insurance companies is often a frustrating and unfair situation for the person who has been injured and their family. Insurance companies do not play fair and an experienced personal injury lawyer can help you obtain the compensation you deserve to manage through these difficult and confusing times.
Unfortunately, the insurance companies tend to dictate your medical care as well since they are contractually responsible for paying the medical bills. Therefore, they often deny needed medical treatment based on the cost of it. This is another frustrating result of an auto crash. It is important that you work with both your medical provider and the insurance adjuster/ case manager to resolve any payment issues for necessary treatment.
Not all lawyers handle all areas of law. You must hire an experienced injury trial lawyer.
Personal injury trial lawyers know how to conduct the proper investigation, line up the right witnesses and compile the right evidence that will prove an injured person’s case against the insurance companies. While settling a case out of court should be everyone’s goal, often the insurance adjusters and defense lawyers will drag a case out for years and force everyone to go to trial by offering substantially less money to settle a case than its true value based on the impact on a person’s life. It is important that the attorney you choose to handle your case has a successful record for obtaining jury verdicts for injured clients. He or she needs to know how to maximize the value of an injury case and present successfully to a jury.
Your priority is feeling better.
The most important thing to do after you are injured in a car crash is to make sure you are seeking medical treatment with appropriate specialists. Be sure to tell your doctor(s) everything that is affected by the crash to ensure the insurance company continues to provide medical benefits to which you are entitled.
Truck Safety and Bad Weather
Drivers of tractor trailers are required to follow the rules specifically written for them to keep themselves and other drivers of vehicles on our roadways safe. If they do not follow the rules, and as a result another driver is injured, the commercial driver is responsible for that injury. The owner of the company and the truck for which the driver works, may also be responsible for that injury.
In bad weather, truck drivers are required to use "extreme caution" or stop driving all together. If the roadways are icy, for example, a truck must slow its speed to a crawl and stop driving as soon as possible to avoid a crash. Trucking companies that permit their drivers to continue operating during heavy fog, snow storms, ice storms and torrential rains place every driver on the road at risk of significant injury, including their own driver.
The Federal Motor Carrier Safety Regulations state as follows at 49 C.F.R. § 392.14:
"Hazardous conditions; extreme caution. Extreme caution in the operation of a commercial motor vehicle shall be exercised when hazardous conditions, such as those caused by snow, ice, sleet, fog, mist, rain, dust, or smoke, adversely affect visibility or traction. Speed shall be reduced when such conditions exist. If conditions become sufficiently dangerous, the operation of the commercial motor vehicle shall be discontinued and shall not be resumed until the commercial motor vehicle can be safely operated. . . ."
The drivers of large trucks are called upon to use their training, experience, judgment and any resources available to them to be safe on roads that become unsafe by bad weather. This includes staying apprised of weather reports and pulling off the road when necessary.
Often truck drivers are under pressure to deliver their loads with strict deadlines set by their companies. Regardless of those pressures, ultimately, drivers of commercial trucks are responsible for paying attention to weather conditions. In wet or icy conditions, drivers of 18-wheelers must follow the rules of the road and make safe decisions since their vehicles require increased stopping distance on wet and slippery roadways.
The consequences of unsafe truck driving on snowy, wet or icy roads can be devastating. All drivers need to be especially careful in bad weather, but drivers of commercial trucks have a greater duty to follow the rules of the road in ice and snow.
Lauren D. Fraser, Esq
Lauren is a nationally recognized trial attorney in New Jersey, having been recognized by the National Trial Lawyers organization as one of the Top 100 Trial Attorneys in NJ. Lauren specializes in personal injury law representing people in the community who have been injured through no fault of their own.
Please note: The opinions expressed here are the personal opinions of Lauren Fraser (and sometimes other super smart people, especially when she provides appropriate citations.) Lauren's opinions do not necessarily reflect those of all members of The Fraser Firm or any other organization to which she belongs. However, Lauren is also the first to admit she is generally right about stuff.