June 16, 2012 (Original publish date) • By Dennis Beaver
Look in the attorneys section of most any Yellow Pages — or the Internet — and you’ll find full-page ads for lawyers who specialize in personal injury cases, describing millions of dollars “won” for clients and making getting into an accident sound like winning the lottery.
What the ads do not reveal is what happens if you lose. Fresno insurance defense attorney “Troy” knows only too well the consequences of losing a case, and tells You and the Law:
“The public is generally unaware of just how financially serious things can get in a hurry if you go to court with a loser of a case and you indeed do lose! We are seeing this more than ever in the past, in part due to California’s massive supply of newly-minted, inexperienced lawyers who cannot find a job, open their own offices and chase the potential of big bucks for little work that personal injury offers.
“Also, there is now a shrinking pool of clients, as many people are settling their own cases without hiring a lawyer and doing an excellent job for themselves, thanks to information available online,” he points out.
“But what is really dangerous are those lawyers who take on cases where their client is clearly at fault. These attorneys are banking on the insurance company putting a few dollars on the table to just go away, as the cost of going to trial is expensive for everyone. “Often, where fault is shared, we will compromise, but if the settlement demand is unreasonable, or we have no fault at all, we will go to trial, and to no one’s surprise — except perhaps their client — usually win.
“Then, weeks later — and this is the sad part — upset, often-shocked clients are back in court for a determination of how much money they will be ordered to pay for our for-court costs, investigator fees, experts and so on,” Troy stated.
‘Beav, would you have taken this case?’
I was then handed a large file, Troy explaining:
“This is a trip-and-fall case I am working on now that unfortunately seems headed for trial. Would you have taken it, or told the person to be more careful the next time she’s hanging laundry, and just move on with her life?”
The file was close to five inches thick, filled with medical reports, photos of the accident scene, lawsuit pleadings, depositions of Angela — the 55-year-old plaintiff — and, of course, medical bills. Something immediately appeared odd, and it was just how low the bills were — only $2,800, including a visit to the ER, X-rays and prescriptions. Claimed lost wages of $3,000 were also extremely low for a case to make it this far in the justice system.
So how could case with such minimal damages have gone this far? Statements from both Angela and the insurance investigator cleared up that question rapidly.
The facts were straightforward. Angela and her three adult sons had been tenants for over two years in a well-maintained, small home built in the 1950s. While the house only had about 1,300 square feet, the lot was large by today’s standards and had “a gazebo complete with a barbecue center in the middle of the back yard near an old-fashioned clothesline which I used instead of a dryer,” Angela stated.
As there were some electrical problems with the barbecue and gazebo lighting, the landlord hired an electrical contractor to replace the old wiring and conduit going to the gazebo. A 4-inch by 6-inch trench for the new conduit was dug, but the contractor never returned to finish the job.
Photos showed a clearly visible trench running alongside a cement slab which was two feet from the clothesline. The trench had been there for over six months, and interestingly, a week before Angela was hurt, “My son twisted his right foot in the trench, stepping off of the cement slab while getting clothes from the line, when it was dark outside,” she admitted.
So, how was she hurt?
In the identical way her son was — at 9:30 in the evening — only she broke a small bone in her right foot. Angela knew the trench was there, but was on “autopilot” and didn’t think about it.
It is called comparative negligence
The law does not reward marching right into a known risk of harm. In severe cases, it is known as “assumption of the risk,” but generally we call this behavior “comparative negligence.”
Here, leaving the trench open for months exposed anyone in the backyard unaware of it — especially at night — to a serious risk of injury. But when you know it is there?
Angela’s attorney has demanded $45,000. Troy offered $5,000.
We’ll keep you posted on the outcome of this case, but right now a question: Do you know the difference between “costs” and “attorney fees?” We’ll have the answer next week.
Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.