Despite all of the press, teens and adults continue to drive distracted resulting in avoidable car crashes, truck crashes, bicycle crashes, and motorcycle crashes.

Car Crash injury attorney Lindsay Rakers is encouraging everyone to make a pledge to family, friends and other motorists to not drive distracted.  Email Lindsay at lindsay@injurylawmissouri with the word “I pledge to not drive distracted” and your address and you will be sent one of these End Distracted Driving bracelets for FREE.

The bracelets are in honor of Casey Feldman – a true face of distracted driving.  Visit http://enddd.org/ for more information and how you can help this great cause.

Chen’s article discusses the stress medical lawsuits have caused – that doctors who have been sued find themselves depressed, emotionally detached, and experience burn out. What about the injured? What about their families? What about what they have experienced – additional, unnecessary surgeries, pain and suffering, loss of the ability to live a normal life, embarrassment from a deformity, depression? The stress of perhaps getting sued pales in comparison. If a physician is constantly worried about being sued, perhaps something else is going on.

I’d like to remind Dr. Chen of something she likely already knows – most attorneys do not file a medical malpractice lawsuit based upon a “single sentence” in the medical record. It is usually a combination of things contained in the medical record, in the testimony, that make it clear the patient was not provided the care he/she deserves. Dr. Chen, and others who support tort reform regarding medical malpractice, should closely review this website regarding the Five Myths of Medical Malpractice. We don’t need tort reform – we need a reduction in medical errors, we need patient/doctor communication.

As an attorney, I am exposed to attorney malpractice lawsuits. Do I believe these claims should therefore be restricted so that I don’t suffer – so that I don’t worry? No. Not all doctors are sued. But we have to have a system where doctors are accountable for their carelessness. Sometimes things happen that cannot be prevented and those risks should be explained to the patient. But if something happens directly due to the doctor’s carelessness, the doctor should be held liable.

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A deposition is a process where the witness is asked various questions by the defense attorney and a court reporter is present to make a recording of the deposition. Typically, the Plaintiff gives a deposition first. Your attorney will most likely spend a good chunk of time, maybe even on more that one occasion, speaking with you about what to expect during your deposition. Most of the time, my clients tell me the deposition wasn’t nearly as bad as they expected it to be. You can expect the defense attorney to ask you questions about the event that caused your injuries. Of course, the attorney will ask you a lot of questions about your injuries themselves – how they limit you, where it hurts and how often, what doctors you have seen, and whether you had any prior injuries to that part of your body. You are allowed to take breaks as you need them and even speak with your attorney during these breaks. Usually, the defense attorney will want to size you up as a witness in addition to learning about your injuries. The attorney wants to know if the jury will believe you, if the jury will like you. To get that information, the defense attorney will ask you where you grew up, if you are married, if you have any children.

Sometimes, my clients find some of these questions to be too personal and even out of line. Remember, the discovery process is set up to permit the attorneys to gather information. Your attorney will ask similar questions of the defendant. During your deposition, your lawyer will be present with you. If there are questions that are asked of you that are inappropriate, your lawyer will protect you. If this happens, your lawyer will object for the record so that later, your attorney can ask the judge to bar that particular evidence. For purposes of the deposition, however, don’t be surprised if your attorney tells you to go ahead and answer the question. Your attorney will do that in an effort to try to prevent you from having to sit for another deposition. If the question is completely inappropriate, your attorney will tell you not to answer.

Not long after your deposition, your attorney will take the defendant’s deposition. Whether a Missouri or Illinois case, all parties have a right to attend all depositions. This means that you can attend the defendant’s deposition if you choose too. Likewise, the defendant can attend your deposition if he chooses to. Don’t worry, the defendant himself does not get to ask you questions, during the defendant’s deposition, your attorney will ask a number of questions that are designed to help prove your case. I always ask my client if there are particular questions he/she wants an answer to and I do my best to ask those questions too. Sometimes, the plaintiff wants the defendant to be “beat up” during the deposition. Remember, your attorney can’t make the defendant apologize to you and likewise, sometimes it doesn’t help your case to have your attorney go after the party that hurt you. Trust your attorney and her experience in this regard.

Next time, fact witness depositions.

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Prior to filing your lawsuit, your attorney will have investigated as much as possible. Your injury attorney will try to locate eye witnesses, people who are aware of how the accident has affected your life, and tried to learn more about the defendant who is responsible for hurting you.

Once you are at a point where your lawsuit has been filed in a court of law, and defendant has “answered” the lawsuit (either admitted or denied your allegations or asked the court to dismiss your lawsuit altogether) it is time for written discovery. As I explain to my injured clients and their families, “written discovery” is just a fancy lawyer term for written questions. I’m not sure why the legal field continues to use such funny language but it does. The defense will send a list of written questions for you to answer with the help of your attorney. You will sign the document with your answers, certifying that they are true and complete. Most of the time, these written questions are standard – asking for your name, address, if you have ever been in a car accident before, if you have ever hurt that same part of your body before, if you missed work because of the accident etc.

Sometimes, the defense attorney will attempt to sneak in inappropriate questions (such as questions about injuries to other parts of your body or questions about your past seeking irrelevant information). If this happens, your attorney will enter an objection instead of having you answer and, if necessary, your attorney will ask the judge if you have to answer the question. Your attorney will also prepare written discovery and send it to the defense. This is your time to find out if the defendant got a ticket as a result of the crash, has ever caused a crash before, or was drinking or texting at the time of the car accident. In Missouri, you have 30 days to answer discovery. In Illinois, you have 28 days to answer written discovery.

Next time, we will discuss party depositions.

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Was the potential client injured?

Usually, the potential client is injured or he/she wouldn’t have come to me in the first place so typically, this is an easy one to answer.

What appears to have caused the injury?

If the potential client has been in a car accident or recently fell on ice or snow, this is typically another easy one to answer. But sometimes, it is a bit more complicated. Sometimes, the potential clients have taken a medication and are now experiencing symptoms that they have heard are linked to the medication. Sometimes, the potential clients have recently had a medical procedure and is experiencing severe complications. Other times, while the potential client was recently involved in an accident, it is difficult to tell if the current symptoms (sore back, sore neck) were really coming from the impact in the accident or a result of longstanding arthritis. These are all questions that have to be evaluated. I try to explain to clients that just because you are hurting, doesn’t mean there is a claim.

Did someone else do something wrong to cause the injury?

With car accident cases, a quick review of the police report can typically answer this question. Sometimes, it is required that I travel to the scene and/or interview witnesses. It is very rare that a car crash is not caused by someone’s carelessness. This is why I typically refer to these incidents as “car crashes” instead of “car accidents”. I typically find that the at-fault driver was somehow distracted at the time of the crash. It is a choice to put on makeup while driving, to text while driving, to reach down to grab something while driving. To call this an “accident”, in my opinion, is not fair to the injured party. With regard to medical malpractice claims, defective product claims, dangerous drugs claims, this question is closely tied to the above question. Perhaps the person is indeed injured and/or suffering but the pain stems from something completely unrelated to recent treatment or recent medication taken. Sometimes things are simply coincidences. Sometimes things go wrong during surgeries that even the best doctor, the most prudent doctor, cannot prevent. Therefore, it is very important to evaluate this question prior to moving forward.

If I do determine that there is a legitimate claim to make on behalf of the potential client, this does not mean that the legal claim will turn into a lawsuit (a case filed in a court of law). Sometimes the insurance adjuster for the negligent (at fault) person will pay the claim in a reasonable matter. Other times, the adjuster will delay payment, will argue that there is no liability, or will discount the claim and not pay the injured person what he/she deserves. Under such circumstances, I always recommend that the client not let the insurance company take bully him/her. A lawsuit should be filed under such circumstances. This doesn’t always mean that there will be a trial in front of a jury. Some lawsuits resolve before trial. And remember, while you will be suing the car driver, property owner, or doctor that hurt you, it is usually an insurance company that will pay. Granted, under some circumstances the at-fault (careless) person may have to pay, more often than not, this doesn’t happen. Although I should point out that the at-fault person’s insurance rates may go up. I try to explain to my client that the injuries are not his/her fault and he/she has an absolute right to be compensated for what he/she has lost.

If you have been injured and are thinking about filing a claim, remember that not every claim is a lawsuit and not every lawsuit goes to trial. Be sure to keep an open line of communication with your attorney and explain what your concerns are. Sometimes, an attorney can bring resolution to your claim quicker than you think.

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Please review my recent news report on the subject of our initiative to end distracted driving.