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Value of the Heart

Many times in jury trials, I will describe my client’s losses and actually itemize the damages. That may include medical bills, loss of wages and even future loss of wages. It might also include a permanent injury.

Sometimes, I will make the argument when the evidence supports it, that loss of enjoyment of life is a greater loss than all the other mathematical damages for which there can be an exact mathematical tally. Rarely is it possible to put an actual value for emotional losses. However, over the weekend, I saw a video that does a good job in putting a value on emotions.

For the blog, I am not attaching the video, but here is a screenshot, in case you want to watch it. I saw it on Facebook.















The host/man-in-video goes to people walking their dogs and asks if he can buy their dog. Most of the time, he offers 100k for the dog and sometimes even offers more. He even opens up his briefcase to let them see the cash. They all say no!

Why? The general consensus is that you cannot put a value on happiness that their dog brings to them. To some, that dog may just seem like property that can be easily replaced.  But the owners of those dogs think differently. The value of enjoyment of life. Quantifying the emotion of happiness. A loss that would be difficult to replace.

If you can somehow convey that loss to a jury, then it is more believable that medical bills and loss of wages actually pale in comparison to matters of the heart. To see those dog owners turn down that offer of cash was heartwarming.

And for our pic o’ day, I have to admit that I laughed… and related a little bit to this. The adventures of the grocery store!


Calling and Texting While Driving

A crash because a truck driver was not paying attention. (The Post and Courier)  A South Carolina couple was hurt when a truck driver crashed into the back of their car as they slowed to turn into their driveway. The lawsuit alleged that the truck driver was talking on his cell phone when the crash took place. Unifi Inc., a North Carolina-based manufacturer of polyester and nylon yarns, has now settled the couple’s lawsuit for $3.75 million. But the real issue relates to truck drivers talking on cell phones and not paying attention.

The company did have a policy regarding their drivers on the phone while driving; they just did not enforce the policy. According to the article, At the time of the crash, the trucking company had a policy that its drivers could not use their cellphones for longer than two minutes, and only if they were using a wireless Bluetooth device.

According to the evidence in the case, Unifi Inc. did not enforce the rule and phone logs show that the driver involved in the accident, had been using his cellphone for seven hours during the course of his roughly 8½-hour driving shift. During the lawsuit discovery, other phone logs showed that many of their other truck drivers were talking on the phone in the same extended time.

This company has 60 trucks on the road. They now say that they will no longer allow their drivers to use their cell phones while driving.

The Federal Motor Carrier Association (FMCA) approved a regulation in 2012 that banned hand-held phone use by drivers of commercial vehicles. Hands-free phones while driving is still lawful. In South Carolina, the regulation is enforced by the state Transport Police.

I find this article interesting in that it might indicate a movement that stops cell phone use while driving. There are already phone apps available that block texting while driving. Some lawmaker may decide to introduce a blocking app into required driving law. In the meantime, would cell phone companies lobby against this? Are drivers ready for such restriction on a personal level?

And for pic o’ day, speaking of progress:


Those Personality Tests

In ninth grade, a book circulated through our class called Spirit-Controlled Temperament by author Tim LaHaye. (Amazon) It encouraged readers to identify the personalities and do a self-evaluation.

It caused a bunch of us as ninth-graders, to talk about personality traits instead of whether the Orioles had won or who was starting for the Colts. A pretty amazing feat.

The reason it was able to do that is because we all are interested in understanding ourselves. I remember after reading that book, I became a little concerned that I couldn’t decide which personality that I was supposed to be. It seemed like I fit in all the categories… seriously.

I later read criticism about the book’s attempt in categorizing everyone into 4 types of personalities. Probably a little to intense for me in ninth grade.

There is a test called the Myers-Briggs Personality Indicator (MBPT) which some firms use relating to employment.  It also helps individuals to identify job skills that they might use in looking for employment. It divides the test results into the following:

     E (extravert) or I (introvert), in interacting with others

  • S (sensor) or N (intuitive), in processing information
  • T (thinker) or F (feeler), in making decisions
  • J (judger) or P (perceiver), in dealing with the outside world

A person probably knows that they like people and are extroverted. This testing is to indicate that they might thrive in team building tasks. The extrovert probably shouldn’t try to take a job alone on some Alaskan science station.

Part of our interviewing process includes testing for job candidates. There are no right or wrong answers but the testing does attempt to quantify energy, focus and current stress levels; and whether someone is willing to work under supervision and within a team.

When I speak to the attorney candidates about the testing, without fail they ask me, “How did I do?”. I like it that it matters to them.

That brings me to the opposite spectrum. Our firm represents several clients who have suffered brain injury from a crash or even from getting slammed in the head with an airbag. It might have saved their life on impact but airbags can sure jerk your head back when they pop out of the steering wheel.

Some of our clients are diagnosed with mild traumatic brain injuries. That doesn’t mean that the injury is not serious, but it generally has more to do with the how long they were unconscious or  whether they were in a coma, to be categorized differently. The National Football League has also been responsible in part for helping the public understand the significance of a concussion.

The practical side of that is that many brain-injured clients are greatly fatigued, suffer personality changes or lose interest in things that meant a great deal to them before the crash. Ultimately, I have noticed that these clients don’t call and ask “How did I do?”. Unfortunately, part of the damages in these cases involves a loss of self.

If a person breaks their arm, doctors can put a cast on the arm. The sad part in a brain injury is that there is no cast that can repair a brain injury.

And for pic o’ day… here’s some real concern!!!!


Case Investigation Puzzle

The  Friday/weekend blog usually takes us to the week’s collection of stuff. I went to the cupboard of accumulated news and ended up elsewhere.

This week I could have written about Governor “Rolex Bob” McDonnell or Tan Mom’s Rehab. Of course, those seemed even more confusing than the Puppy-brother” commercial.  Yes, it is quite the cupboard of stuff.

I did find the “Droopy Pants Robber” as almost blog-worthy. But, how many lines can you write about someone who gets caught because of flashy underwear.

The Queen is getting a raise. (CNN) Her salary increase will be about 5.2%, which means that she will earn the equivalent of about 60 million U.S. dollars. Now that is certainly blog-worthy. Still, that’s all there is to the story and you know by now, I just enjoy the journey of writing!

No, I thought I would finish the blog with a story from inside the office this week. You be the judge.

Briefly on the facts. The prospective client initially called and said that he had been hit by a car, while standing in the middle of the road.  The fact pattern was a bit unclear in the description; so we secured the accident report to see what the police officer had reported.

On the accident report, the officer did not find anyone at fault. He issued no tickets.  He did note that the car had clipped the pedestrian (our prospective client) while the pedestrian was walking and talking on his cell phone.

I don’t think that I need to “toot my own horn” to suggest that something was not adding up.


(OK, it’s true, I was trying to figure out a way to sneak this picture in the blog!)

We decided to look for the witnesses. We found some, who said that our client was in the middle turning lane. It’s that lane on some roads where cars traveling from either direction can turn left or right.

No one had seen our client on a cell phone and there was no indication that, upon impact, a cell phone landed anywhere in the road. Isn’t that what you would expect?

We are ordering copies of his phone records to further clarify the “cell phone issue”  and compare calls to the time of the accident.

Sometimes, you just have to raise your hand and ask for help!

Frog Fries

Now the strange part. The witnesses that were interviewed claimed that they saw the man get hit when the car swerved in and out of his lane. They rushed to help him. They are black, just like the pedestrian. According to them, the police officer initially came up to them with his gun drawn, as he approached the group surrounding the man on the ground.

The driver  of the car is white. We have been unable to speak to him.

Right now, it is still unclear as to the exact place of where the car hit him. It is uncontradicted that the pedestrian was hit by the car mirror. To date, we have not spoken to the officer, but hope to.

What is certain is that the pedestrian is hurt. We are now representing him. It’s why you have to invest in investigation. Somewhere, the truth can be found.

And for pic o’ day, someone else taking a good look!

meet again

Read it again, Grammy!

One of my favorite childhood memories takes me back to my love of a great story. My grandmother used to get her morning coffee and butter raisin toast. Then, she would sit down in her big red chair and I would sit on the right arm of the chair.

She would reach to her left and pick up a story book from the stack of books that were collected next to the chair. Then, she would open the book and begin to read as I would peer over her arm and look at the pictures and words that I could not yet comprehend.

She had read these same books to me over and over so many times, that I could repeat the words verbatim. Still, with exciting voice inflexion and change of voices to match each character in the books; she read them as though it was the first time, and I listened so attentively as though I had never heard this story.

The stories all had some lesson that included some hero. And, of course, there was always a good ending to the story. Then, I would say, “Read it again Grammy, read it again”. She would commence at the beginning again until we would move on to the next book. The only break usually included her getting a refill on her coffee.

Many times before bed, we would be right back to those same stories. Even if we had to take a break for real life things. As I type this blog, it takes me back to such a good feeling of just sitting there, never wanting the Grammy to stop reading.

In Saturday’s, there was a story titled “Job seeker tries to plant seeds at Va. Beach expo”. The story included a picture of a young man standing in front of the display. He is bit out of place at the Virginia Beach Convention Center, where the Virginia Flower & Garden Show is set up.

The many displays on the floor include potted greenery and garden tools. At this one display, a 27-year-old man stands with a table behind him, and a large white sign that says “John Wike/Bachelor Degree-Business Management”. Instead of selling rakes, he is pitching himself for employment; hoping that during the three days of this convention that someone will have a job opportunity for him.

In real life, the end of the story is not always perfectly scripted. Many clients that call me also weave a story of lost wages and lost opportunity. Sometimes on their path of life, they are unable to pursue a career or take a desired job that has been offered. Other times, they miss so much work that their employer either terminates them or they lose some career advancement opportunity.

Part of the damages of an injury claim can include making a claim for lost wages. That claim exists even if a person did have sick time that they could take as a benefit of their employment. The person that hit them does not benefit from the collateral benefit of a sick leave payment.

Virginia also recognizes a claim for loss of earning capacity. Following an accident, a client may be earning more than they were earning before the car crash. However, they may have lost a job or career opportunity that could have provided a better income for their future. For that, the person that caused the crash should also be responsible.

Every day, I hear “stories” about difficulty. Fortunately, I have also seen many good endings, despite the road of difficulty in getting there.

After I read the “Wike story” about how he was seeking a job; I also continued to read the comments that followed. One person commented that they really enjoyed reading the story. Then, they wrote, “please do a followup story on him…. I bet he gets a job soon”. Just like me, they like a happy ending.

In my head, I can still hear my high voice saying to my Grandmother, “Grammy, read it again” and my grandmother turning the book to the beginning and off we go again to a happy ending.

Just for conversation, I still have people ask me about “my holidays”. So, I am posting this pic o’ day that makes me laugh:




The Accident Report Evidence

     While looking through the Costco monthly magazine, I saw a recipe for Crispy Chocolate Ice Cream Mud Pie.  To be honest, I didn’t really look at the recipe. I know that I am not going to buy the ingredients and whip that up. Not interested in the real details.

     I was focused on the picture of that chocolate ice cream. I looked closely as though I was investigating an accident scene;  so that I could see every detail of the crust, the chocolate chips and the drizzled syrup.

     I know several people that don’t eat ice cream or don’t like chocolate. I’m guessing that they would  just turn the page when seeing that picture, or the words “ice cream” or “chocolate”.

     The above does make sense because we all have different taste buds. That’s the only way that I can understand anyone eating Brussel Sprouts. Looks more like a green mind without an IQ.

     When a person goes to the emergency room, the Emergency Doctor doesn’t ask “Hey, did anyone bring an accident report along”. I’ve never seen mention of accident scene photos or a discussion of property damage in any ER records. Those doctors and nurses just treat the injuries.

     After leaving the emergency room, many clients then seek additional treatment at the family doctor or a chiropractor or physical therapist. Of course, if something is broken or they have some serious problems, then the referral might be to another specialist.

     Again, I don’t see any records of those treating doctors, with any mention of an accident report or any discussion of how the cars were damaged. They treat injuries and complaints and discuss things like spasms and radiating pain.

     When insurance companies get involved in claims, their attention seems to want to steer clear of any mention of medical records. Instead, they will do things like send pictures of the vehicles in the crash or write  letters that say “based on these pictures, I don’t believe that your client could be very injured from this accident”.

     I suspect that they use these same arguments when they try to go out to the persons house. They want to force or “encourage” a settlement, before I am retained, or before a client may be fully healed or finished with treatment.

     An accident report is not allowed to be mentioned as evidence during a trial. In fact, even the term “accident report” is a basis for a mistrial.

     A jury is to decide a case based solely on the evidence and the weight that they give to the evidence. Even though a police officer may be highly qualified in investigating a crash, that officer may have no special accident reconstruction training or any property damage knowledge, for evidence purposes. 

     An accident report cannot have some special evidence significance. So, the officer can testify to the “investigation notes” but not formally to the “accident report”. The legislature decided  that an accident report has too much significance for the average person and might influence a jury without the appropriate foundation. 

     Finally, I just want one paragraph on  defense hired experts. I do believe that juries understand that defense experts get more defense work, when that opinion is favorable to the defense. So, it’s not unusual for them to not speak to any treating physicians. Instead, many of them will attempt to focus on property damage or pictures at the scene. Strange though, when they are treating physicians not paid by defense, they don’t seem as concerned with non-medical materials.

     Insurance companies and defense doctors don’t seem to like the “chocolate” or “ice cream” of the case. They prefer just moving on to  pictures and not getting into the specifics of the details of the injuries and crash (recipe). Of course, they do ignore pictures when the cars look like crushed cans. Then, they look for something more favorable like blaming the client. 

     And, now pic o’ …. a bit of medical cartoon humor. 


“Fighting is What Rednecks Do”

I had not been to our South Carolina office in a while. So, when I started into the parking lot, I couldn’t help but notice the surrounding brick wall outside the office,  had crumbled in an unusual way. It  looked like a car had tried to ram through the wall.

When I came in, I asked one of the paralegals, “what happened to the wall out there?” She tilted her head and shook it with a grin. “Well” she said, “a man without a shirt came racing through the parking lot and then pulled around into the road. Then, for some reason, he went back up on to the curb and halfway went through the brick wall”.

Now my curiosity was in full question mark mode. Why, how, who and what happened? In short, the man opened the car door after impact. His leg was now going in a couple different directions. But, he didn’t seem in pain as he sat there and refused to get out of the car or do anything. Almost like maybe it would all just go away.

Soon, a Greenville policeman came up but the man kept hollering to just leave him alone. This, all right outside our office windows, which explains the ability to see that he was driving without shirt. Finally, he agreed to get out of the car for emergency treatment. The officer apparently collected beer and pill bottles, which might be explanation and evidence about the erratic driving, sitting and arguing.

All that seems a bit strange, but so does the fact that the landlord has allowed the hole, bricks and wiring to just remain over one of the parking spaces, for over 2 months without anything being done. Something to do with an uneven foundation, non-matching bricks and required replacement of about 25 feet of brick wall.

Right now, I’m fascinated to see what will happen next. My guess is a continuing hole in the brick for at least another year. This sequence of events reminded me a little bit about the Florida guy that thought it was OK to fire a gun in his own yard.

Mark Wach of Palm City could not understand why the officer was arresting him for firing a gun at a lawn mower that was in his own yard. The man originally had argued with his son; Pointed a pistol and then a shotgun at his son and then jumped on top of his son, after the son had wrestled the guns away from him. All this, after the man had opened gunfire on the mower.

When the police came, they ordered the intoxicated man to stop fighting and to surrender to the deputy.  He failed to do so and refused to cooperate until the police shocked him with a taser. Finally, they got him under control and arrested him.

As he was headed off to jail, he kept asking the officer why he was arresting him. They tried to explain to him that you can’t fight and also fire a gun in your neighborhood, including at a lawn mower. He argued that, “Fighting is what redneck people do”.

The arrest report did not indicate if he shot a riding or push mower.  Can’t you see why that story reminds me of the brick driver with a pretzel leg?

Pic O’ Day is really a cartoon. Something to think about!

Performance Damages

My six-year-old niece had the whole family excited about her upcoming performance. She had been practicing for weeks. She’s one that embraces performances in front of people. Last week, some of the family even traveled a couple of hours for the promised excitement.

Soon, word rippled down the family grapevine; She had fallen and had scraped her knee and wouldn’t be able to perform. All that practice and excitement now led to all of us feeling bad for her.

I’m sure she felt the knee scrape but the true “wound” was the hurt of disappointment. As for the family, we know that she will face life’s bumps and bruises, but you just wish there was a way to help her avoid them.

Early in the week, I was returning a phone call to an adjuster. I had mailed a settlement package about 30 days earlier; The package included pictures of my client’s car; her medical bills and records, and my client’s description of how the accident made her feel.

My client is almost 80 years old. She said what many of my clients tell me,”I’ve never been through something like this”. When we were discussing the fair market value of what her claim should settle for, I specifically wanted to know how she was doing from injuries, and anything else that she could tell me, when describing how this crash had effected her.

Her desciption about her injuries and recovery coincided with her medical records. She initially had pain and muscle spasms and she felt that the doctors and physical therapist had really helped. Now, she told me that “I feel much better”.

My client then went on to tell me what really had bothered her. At the scene of the crash, she was pretty shook up. The person that hit her had never said he was sorry or even checked on her. She still had vivid memories of how the accident “had scared her and how it happened so fast”.

Within a couple of days from the crash, the adjuster called her and wanted to take a recorded statement from her. She’d never had to do one of those. She was proud of the fact that she got around by driving herself and really didn’t like it when she was without a car. Fortunately, they finally got it fixed and got it back to her. She told me that she felt that she needed to “be more careful” while driving.

I finally got the insurance adjuster on the phone. He went on to recite that they knew that their insured was at fault. (Of course, he had pled guilty of failing to yield at his traffic hearing). The adjuster said that he had reviewed the records, noticed that my client had gotten better and that they were willing to pay her medical bills and throw on “a little bit more to settle it”.

The law recognizes several forms of damages. Medical bills is only one form of damage. The adjuster was acting like most adjusters and just processing. He probably had put the details of the accident in his company’s software package and the computer had told him a range of what to pay. That range didn’t recognize the fear of being in the crash; the worry of not getting better; or what it felt like to lose a bit of independence in not having your car to drive.

My niece did get hurt from her fall. But, her real loss was not being able to perform after all that practice and the anticipation build-up to that night.

Only part of the injuries from a car accident are from the physical hurt. Many Insurance adjusters that I talk to, try to only focus on medical bills and treatment. To me, it’s really the effects of the crash. Just like the performance damages of not performing, for my niece. And no, my client’s claim is not going to settle “for a little above her medical bills”. When I gave my reasons to the adjuster,  he said that “he and his supervisor will take another look at it”.

In light of that, I thought that pic o’ day should be about responsibility:

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