The Personal Injury Law Podcast

Today on the podcast we have Bob Dignam, a Lawyer and Civil Mediator based here in Northwest Indiana. We’ll discuss all aspects of the mediation process including managing client expectations, tips for getting a better result at mediation, and the biggest mistakes we see lawyers make in mediation.

In this episode of The Personal Injury Law Podcast: We discuss what exactly GAP Insurance is, what it means to be upside-down on a car loan, and how you can decide for yourself if it is worth it. Check out http://www.thepersonalinjurylawpodcast.com/ for more. The goal of the personal injury law podcast is to provide information to people … Read More

In this episode of The Personal Injury Law Podcast: We discuss the specifics of medicare and medicaid. We go over the definition and difference of each, what someone must do or have to be qualified, assumptions most people have about medicare and medicaid, and more.  Check out http://www.thepersonalinjurylawpodcast.com/ for more. The goal of the personal injury law … Read More

In this episode of The Personal Injury Law Podcast: We invite David Terry, a Personal Injury Lawyer, to discuss the specifics of his career. We discuss how he became a lawyer, why he decided to focus on personal injury, lawyer stereotypes, and more.  Check out http://www.thepersonalinjurylawpodcast.com/ for more. The goal of the personal injury law podcast is … Read More

In this episode of The Personal Injury Law Podcast: We invite David Terry, a Nursing Home Lawyer from St. Louis Missouri, to discuss the specifics of his career. We discuss why he chose his specialization, the situation in Missouri, the main problems in the industry, and what you can do to prevent your loved one … Read More

In this episode of The Personal Injury Law Podcast: We invite William Eadie, a Nursing Home Attorney, onto the podcast to discuss the specifics of Nursing Home cases. We discuss the reason he chose his specialization, what the field is like, and what you should do in certain scenarios if you or a loved one … Read More

In this episode of The Personal Injury Law Podcast: We invite Dr. Jonathon Walker to discuss the specifics of MTBI’s. We discuss the right questions to ask in this situation, the right diagnosis to give, and certain treatments that may help someone suffering from this type of injury. Check out http://www.thepersonalinjurylawpodcast.com/ for more. The goal of the personal … Read More

In this episode of The Personal Injury Law Podcast: We invite Mike Campbell, a personal injury lawyer, to discuss his background in Personal Injury Law. We discuss why he became a Personal Injury lawyer, why the loss of a family member deserves financial compensation, and how to send a message to a corporation.  Check out http://www.thepersonalinjurylawpodcast.com/ for … Read More

In this episode of The Personal Injury Law Podcast: We invite John Fisher to discuss with us the specifics of his work in medical malpractice law. We discuss the definition of medical malpractice, the criteria a case must meet for it to be considered, common mistakes by clients, and how important it is to have … Read More

In this episode of The Personal Injury Law Podcast: We invite Tyson Mutrux, a personal injury lawyer, to discuss his specialization under personal injury. We discuss some of the behind the scenes work that personal injury lawyers do, stereotypes that they face, and Mutrux’s specialization in motorcycle accident injury. Check out http://www.thepersonalinjurylawpodcast.com/ for more. The goal of … Read More

In this episode of The Personal Injury Law Podcast: We discuss the topics that Guy relearned in his recent week of trail. We discuss how the stereotypes of the courtroom aren’t always accurate, what can be considered in a witness testimony, and how people in the jury can bond over their experience.  Check out http://www.thepersonalinjurylawpodcast.com/ for more. … Read More

In this episode of The Personal Injury Law Podcast: We discuss how some people after an accident can be afraid their insurance provider raising insurance bills. We go over how you shouldn’t worry, what you should do in the situation of an accident, and details on fault in an accident. Check out http://www.thepersonalinjurylawpodcast.com/ for more. The goal … Read More

Today, I sit down with Michael DeBlis, III,  a trial lawyer from Bloomfield, New Jersey and host of Theater of the Courtroom Podcast. Michael and I discuss what it's like going to trial and how in many ways trial and theater are the same. The topics discussed include: Why vulnerability is powerful in the courtroom; How a client's testimony can make or break a case; How being in court is different than most interactions in life; and Why it's so important to be able to tell a client's story through other witnesses. Over the years, I have come into contact with lawyers who think it's all about them. You hear them say - "I won this case" or "I did that", the truth is that trial is all about the client. If it's a criminal matter where the client is not testifying, the client's story must come to life through the drama of the courtroom. If it's a personal injury matter that is being tried, the case almost always centers around the client's credibility. One slip up, one stop over the greed line, one inconsistency in your story and can be used to support a biased juror's position and destroy the whole case.

In this session of the personal injury law podcast I sit down with Hal Elrod, the best selling author of the Miracle Morning, and we discuss how to overcome adversity after an accident and in life. Hal will tell his story of being catastrophically injured in a drunk driving accident. The doctors told Hal that it would be unlikely that he would walk again. Hal will explain how he overcame the odds and actually became an ultra marathon runner. Hal explains that after an accident or any other adversity in life, we all have choices to make. He chose to follow the five minute rule, get on with rehab, and get his life back. We also discuss what led to the writing of the Miracle Morning and the principles behind the book. This podcast interview is enjoyable and will hopefully motivate you no matter what is going on in your life.

There are many situations under the law where you are required to go through an administrative process and exhaust all your remedies before you can ask a court to address your issue. The two situations that I most frequently encounter have to do with employer benefit plans and prisoner medical issues. ERISA First, I would like to talk about benefit plans. Many employee benefit plans, if they have some element of being self-insured, are covered under a federal law called ERISA, which stands for Employee Retirement Income Security Act. As an example, say the company you work for offers benefits. You go through the booklet and you choose health, disability and life insurance products. After a few years working, your doctor tells you that you have a medical condition that is going to progressive and you will not be able to work. You file for disability under your work’s plan, and the insurance company denies your request for disability. Your doctor supports your position and you want to sue the insurance company. You are not able to just go out and sue the insurance company. Under ERISA you will be required to follow the steps set out in the benefit plan appealing this decision. The plan may set out a two or three step appeals process. It is only after you completed all the steps and the insurance company still denies your claim that you are able to seek assistance in the Courts. The strange thing about making a claim under ERISA is that the courts only have the power to review the company’s decision – so in these cases the battle must be won by making a complete record and submitting all your evidence at the administrative level. Many folks do not understand this and they do not exhaust their remedies or submit enough evidence during the administrative process. These folks either either have their claim kicked out of court or they outright lose their case. Prisoner Rights Another area where exhaustion of administrative remedies is prevalent is in prisoner rights cases. Under the Prison Litigation Reform Act – A federal law, before a prisoner is able to bring a claim into to court they must have exhausted all available remedies within the Department of Corrections. All prison systems have grievance procedures. I will use the Florida DOC system as an example. In Florida there is a 3 step grievance process: An informal grievance A formal grievance Appeal of the formal grievance In the medical context, informal grievances do not need to be filed. So, if you believe that the medical providers are not providing appropriate care – the first step is the formal grievance. The grievance has to be filed within 15 days of the event and it must be on a special form called the DC1-303 for short. A grievance can only address one complaint so if there are multiple complaints they need to be addressed in multiple grievances. This grievance will be sent to the CHO (Chief Health Officer) and the CHO is supposed to respond within 20 days.  If the grievance is denied – the incarcerated individual has the right to appeal the denial to Office of the Secretary of the DOC. The appeal must be filed within 15 days of the date the inmate receives the response from the initial grievance. The appeal is on the same DC1-303 form and the inmate must attach a copy of the initial grievance and response to the appeal. The reviewing authority has 30 days to respond to the grievance appeal. If the appeal is denied, administrative remedies have been exhausted. If the appeal is approved, and the inmate still isn’t satisfied with the results, treatment, etc. Hershel has to go through the grievance process again Starting with the formal grievance then appealing the response if it is denied. Over the years I’ve seen a number of incarcerated individuals who have been treated unfairly but they lost their right to bring a claim because they didn’t follow and exhaust the administrative procedures.

In this episode of the personal injury law podcast I'm going to discuss a common and frequent occurrence of folks giving away their right to bring a personal injury claim if they are injured by a businesses negligence. Here is the fact scenario. Over the years, I have worked out at Anytime Fitness and Planet Fitness. My wife likes the purple color and her preference is Planet Fitness, and recently a club opened up by our Florida home. We already belonged to the club in Indiana but we had rearrange our contracts. I looked the contract that I had in my email, and I knew this clause was in the contract, but I thought I would take this time to discuss release of liability (exculpatory clauses). Here is the language in the contract: RELEASE OF LIABILITY ASSUMPTION OF RISK CLUB RULES BUYER’S NOTICE & RIGHT TO CANCEL I understand and expressly agree that my use of this Planet Fitness facility or any other Planet Fitness facility involves the risk of injury to me or my guest whether caused by me or not. I understand that these risks can range from minor injuries to major injuries including death. In consideration of my participation in the activities and use of the facilities, exercise equipment or services offered by Planet Fitness, I understand and voluntarily accept full responsibility on my behalf and on my guest’s behalf for the risk of injury or loss arising out of or related to my use or my guest’s use of the facilities, exercise equipment or participation in exercise programs or other services. I further agree that Planet Fitness, its affiliated companies and their respective officers, directors, employees, members, agents and independent contractors (collectively “Planet Fitness”) will not be liable for any injury, including, without limitation, personal, bodily, or mental injury, disability, death,economic loss or any damage to me, my spouse or domestic partner, guests, unborn child, or relatives resulting from the negligent conduct or omission of Planet Fitness or anyone acting on Planet Fitness’ behalf whether related to exercise or not. Accordingly, I do hereby forever release, waive and discharge Planet Fitness from any and all claims, demands, injuries, damages, actions or causes of action against Planet Fitness. I signed up on line and I don't recall if I reviewed the contract before I electronically signed it but I knew the exculpatory clause was in the contract because I've reviewed a number of these contracts in the past. An exculpatory clause is a contract that allows a person or a company to contract away their negligence or wrongdoing. This may sound counterintuitive to you because the contract shifts the risk of injury from the club to the member. I'm not picking on Planet Fitness because these exculpatory clauses are in a bunch of membership contracts throughout the states. How to the Courts Do with Exculpatory Clauses?  The recent trend is to allow them : Sanislo v. Give Kids The World, Inc. - Florida Supreme Court City of Hammond v. Plys - Indiana Court of Appeals   Every state is different so you should speak with a personal injury lawyer in your state. You will have to make a decision about whether or not you want to negotiate these contracts or forego joining and/or signing these contracts. What are your thoughts - is it okay for a business to contract away their own negligence?

When you stood at the altar, in front of the JP or under the chuppa, you and your spouse said it would be forever. However, over the years, things just started to fissile out. Now, you were recently injured in an accident and your spouse comes home one day and says they want out. They're filing for divorce. Now your wondering how the divorce will impact your personal injury claim. In this the 41st session of the Personal Injury Law Podcast, I sit down with Jim Hart, a North Carolina and Florida licensed attorney who practiced divorce law. In this episode we discuss the following topics: Loss of consortium claims; Equitable distribution states; Marital property; Non Marital Property; We also answer the question if your personal injury settlement proceeds will have to be shared with your wife. Remember, we can only talk to Florida and North Carolina and the law in your state might be different but the information in this podcast will give you an understanding of the issues.  

A client is driving his car and is hit by a drunk driver. The drunk driver has little or no insurance to cover the client’s injuries. During the process, we learn that the driver was coming from a holiday party and the question then becomes are we able to seek recovery from the hosts of the party if they over-served the guy alcohol. First, I must give you a disclaimer. These claims are difficult and each state has their own law. These are not claims that an injured person can handle by themselves and the best bet is to at least consult with a lawyer who has handled these claims before. I practice in Florida and Indiana; these two states handle the issue differently so I will explain. Florida does not have a typical dram shop law like most states. I discussed liquor issues in session 24. If the drunk was an adult In Florida, if the driver was at a bar, restaurant or other seller of alcohol the only way to hold the seller responsible is to show: minor they served someone who they knew or should have known was habitually addicted to alcohol. Now to the house party – if the guy who hit the client is over the legal drinking age – the law in Florida does not support a claim against the social host of the party. If the drunk was a minor On the other hand, if the driver was a minor, there may be a way to get recovery. In the Charlie Sheen session – I discussed how criminal laws can be used in the civil or personal injury context. Florida has a criminal law called the open house party statute, which is specifically designed to protect minors. The law says: A person having control of any residence may not allow an open house party to take place at the residence if any alcoholic beverage or drug is possessed or consumed at the residence by any minor where the person knows that an alcoholic beverage or drug is in the possession of or being consumed by a minor at the residence and where the person fails to take reasonable steps to prevent the possession or consumption of the alcoholic beverage or drug. In some cases, we can use this law, to hold the host of a party responsible for the injury. What if the minor was drunk in Indiana? Indiana has a similar law regarding minors. The law forbids a person from knowing furnishing a minor with intoxicants or contributing money to a common fund that will buy liquor for minors. Now Indiana’s law is a little more liberal than Florida’s in trying to attach responsibility to the host of a party. What if the drunk was at a work party? One of the main cases that discusses the issue comes out of a work holiday party in which alcohol was furnished to the employee, the employee was drunk, crossed over the median on a highway and severely injured the other drivers. The court suggested that the employer may be responsible because: The employer furnished the alcohol It occurred on their premises The president of the company was there when the employees were playing quarters, and finally the drunk guy who caused the injury was an employee of the company. Well there you have it. Depending on the facts and circumstances of a particular case there may be times when the host of a party may be responsible for injuries caused by one of the party’s guests.    

In this session of the personal injury law podcast, I’m going to follow-up on the Charlie Sheen saga. We can dissect this public lawsuit to help us better understand of how the legal system works. In session 35, I discussed Charlie Sheen, and the general civil actions against people who do not disclose a sexually transmitted or communicable diseases. On December 3, 2015, Scottine Ross sued Charlie Sheen in Los Angles County Superior Court. In Session 38, I discuss the general lawsuit process. As a reminder, a lawsuit begins with the filing of the complaint. A complaint sets out the factual basis and elements of a cause of action against the defendant. I don’t have a dog in this fight, and I’m not taking sides. The information that I am relying on is from the actual court pleadings. Ross’ sues Sheen for 5 Reasons Ross’ complaint alleges 5 causes of action: Assault, Battery, IIED, False Imprisonment, and Negligence. The Facts Supporting the Lawsuit Ross alleges that she was in a relationship from November 2013 through October 5, 2014. The relationship started out as a business relationship, apparently Ross was a porn star and Sheen contracted with her for $10,000 to have sex on 11/1/13. When a Ross arrived at Sheen’s place on 11/1/13 one of Sheen’s representatives met her and had her sign a NDA – a non-disclosure agreement (NDA) is based on contract. Remember this because it is very important. Apparently the NDA had a paragraph which required the parties to go to binding arbitration. Arbitration is a form of alternate dispute resolution that forecloses a lawsuit in court, and requires the case be resolved by a single arbitrator or a panel of arbitrators. Now back to the facts. After the business relationship on 11/1/13 was over – Ross and Sheen decided to see each other – date. Sheen also convinced Ross to quit nursing school. After, Ross had sex with Sheen about 5 times when she saw medication for HIV in his bathroom. She confronted Sheen about the condition and told him that he should have told her about his condition before they had sex she would never had had sex with him. They continued to see each other and Ross made allowed Sheen to have unprotected sex with her. Over the months, Sheen would have period of outbursts when he drank, where he would break objects, scream and act out. In Jan 2014, the two were engaged to be married. Ross alleges that in Feb 2014, they were in Hawaii on a private boat when sheen started to act out and threw a drink in her face and called her a “piece of shit.” Ross states that she hid in the bathroom of the boat because she was fearful for her life. Now, remember the term that she uses like “fearful for her life” and his outrageous conduct and fearing for safety, because we will come back to them later – these terms track elements for a number of the claims against Sheen. Ross also alleges that in May 2014, Sheen lost his temper and grabbed her by the neck and pushed her into the wall. According to Ross, in June 2014, Sheen pulled out a gun, which was unloaded, pointed it at her head and pulled the trigger a number of times. Ross alleges a continued pattern of emotional abuse between July and September 2014. Each time, Sheen would ask for forgiveness, they would have a honeymoon period and the abuse would start up again. In September 2014, Sheen and Ross were engaged in sex and he became very aggressive and violent, Ross says she asked him to stop and told him that he was hurting her. When it was finally over, Ross ran into the bathroom and she was pleading because Sheen tore her. In October 2014 Sheen broke up with Ross via text message. After the breakup, and as a result of the physical, psychological and emotional torment, Ross went into an emotional tailspin and attempted to commit suicide on two occasions. Assault Ross’ first claim is Assault. I discuss assault in Session 36 explaining emotional injury claims. Assault does not require physical touching.

Today, I am going to spend a few minutes and discuss the litigation or lawsuit process. First, I will define some terms: Plaintiff is the person who brings the lawsuit. Defendant is the person or business that is being sued. Pretty much all civil lawsuits follow the same process. The Complaint  A lawsuit begins with the filing of a complaint. The complaint is a formal document that sets out the elements for the case. For instance, if you were involved in a car accident. The complaint would provide some information about the accident and the ways that you believe the other driver was negligent. If it’s a breach of contract claim, the complaint will set out the terms of the contract and the ways, the other person or company didn’t perform under the contract. Once the complaint is filed the court will issue a summons. The summons is a document telling the defendant that they are being sued and telling the defendant when they have to respond to the complaint. Next, the complaint and summons will be served on the defendant. This is called service of process, and service meets the constitutional due process standards. Under the Fourteenth Amendment of United States Constitution, a defendant has two rights when it comes to a lawsuit – Notice and an opportunity to be heard. Depending on where the lawsuit is filed, service can happen a bunch of ways: Some states, like Indiana, allow service by certified mail Some states require personal service by a Sheriff, Process Server or some other official Some states allow service by publication Once the Defendant is served, and for purposes of this discussion, we will assume he hires a lawyer. The process will be same even if the defendant decides to go through the process without a lawyer. The lawyer will review the complaint and either answer the complaint or challenge the complaint by way of a motion. The complaint, answer or motion to challenge the complaint are called pleadings. Once the answer is filed. The case will move into the second phase, which is called discovery. Discovery is the phase, where the parties exchange information. The information is typically exchanged in one of two ways. Written Discovery: Interrogatories: written questions directed to a party, that are answered under oath. Request for production of documents: a written request to a party or third party (not affiliated with the lawsuit) to turn over certain documents. And/or Request for admissions: a written document that asks the other party to admit or deny certain facts. Oral Discovery: The second way general way is oral discovery. You may have heard the term deposition, which is the primary tool used for oral discovery. A deposition is a question and answer period that is given under oath. The questions are taken down by a court reporter and the deposition may also be video taped. If you would like to read more about depositions, I will provide a link in the show notes. Here and Here. During the discovery phase, the parties may also file different motions with the court, asking the court to rule on different issues. Alternate Dispute Resolution In most states, the parties will be required to go through mediation or some other form of alternate dispute resolution. Mediation is an informal settlement process with a neutral third party, typically another lawyer or retired judge. If you would like to learn more about the mediation process, listen to my interview with Ed Sikorski, which I have linked up in the show notes. In the states that I practice, you will not be able to go to trial until you have mediated the case at least one time. If the parties are not able to resolve the matter through mediation or settlement discussions, the case will go to trial. With the budgetary issues in most states, courts are typically backed up, and it may take years to finally get a case to trial. About 90% of the civil cases settle short of trial because trials are risky...