O'Malley Tunstall PLLC
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July 2011 Archives

Personal Injury Case: Thoughts on Clients in Trial

The trial of an automobile accident case is very often difficult on the client and their family.  The great majority of my clients have never had there credibility, integrity and memory tested in front of a group of people they don't know.  Often they have never been to court before and the entire process is new and disturbing to them.  After over fifty (50) jury trials in personal injury cases one thing is certain; those clients who can stay focused, prepared and above all keep their tempers fair well regardless of the outcome. Juries are merely a manifestation of a segment of our population.  It is what makes a jury verdict so indicative of what we believe should happen and at the same time magnifies every jurors personal experience. In North Carolina attorneys get to question the jury verbally about their prior experiences, bias and feelings on serving on the jury.  The client often gets to witness this portion of the trial called voire dire or jury selection.  I try to get my client involved at this point in the process for quite a few reasons including and especially to get my client familiar with how it feels to answer questions in front of a group. Answering personal questions is difficult.  Client's who do well on the stand all seem to answer the questions without fighting the person asking the questions.  Asking the adverse attorney why they are asking a question, arguing with them about your answer or denying obvious inconsistencies lead to loosing credibility even when there is nothing wrong with the testimony.  Although it is difficult, slowing down your answers and making sure that you are being honest and open with the jury will go along way.  Don't fight over the questions, merely answer them to the best of your ability no matter which attorney is asking you questions. The defense attorney's job is often to create doubt in the minds of the jurors as  to the amount and type of damages recovered.  Jurors, like the rest of us, want to know that we are doing the right thing.  If a defense attorney makes it appear as if someone was injured less than they truely were, the defense attorney has done their job. One way clients fall into the insurance defense attorney trap is by their body language.  Regardless of the actual answers to the questions, the way, manner and appearance given while answering questions is very important.  Do you appear angry?  Are your arms folded across your chest?  Do you appear to care about the trial?  Do you act inappropriately injured (more or less injured than the doctor will testify about your injuries).  All of these considerations go into the jury's decision to award damages. The jury has to like a plaintiff or at least identify with a plaintiff in order to award damages.  When a client testifies they must be themselves.  Their language should match how they normally speak.  In other words, they should not use words they don't typically use as it will be obvious to the jury that they are uncomfortable speaking in that manner.  They should also remember why they are there; not to punish a defendant, but instead, to be compensated for the amount of damages they have sustained as a result of the defendant's actions.  What is important is their own experiences.  Talk about things that are most important to you -- was there a time you could not tie your shoes, vacuum the floor, cook for your family or even drive a car to work?  These are all common everyday experiences that jurors can identify and appreciate. Finally, speak clearly and slowly and always understand the question before answering.  So many times a client allows themselves to be so nervous they forget to listen to the question before answering.  Answering the wrong question helps no one and only decreases your credibility with the jury.  Remember, your word, your honesty is all you have with a jury.  Don't allow your own frustration at having to testify get in the way.

HB542: Insurance Company over Middle Class Workers with Health Insurance

The North Carolina General Assembly has passed HB542 which is designed to "help business" by reducing the amount paid out to victims of negligence. This legislation neither helps business nor the average middle class citizens who works and has health insurance. The bill does  not allow a hurt person to put on evidence of ALL of their medical expenses if they have some additional way to pay the same or if they would not all have to be paid back--in other words-- if they have health insurance the at fault driver gets that benefit. If the victim of any negligence is hard working and has as a result of their job, health insurance, the at fault party, whether a drunk driver or Wal-Mart gets the benefit of this hard work and is allowed to reduce the amount submitted to the jury by the amount of the insurance reduction. One easy example is when a state employee is injured in a car collision and goes to the emergency room and to their primary physician for several visits they have "incurred" $2,500.00 in medical expenses. Under bill vs. paid, the amount the State Health plan has negotiated as a reduction with the hospital and the other providers in exchange for the provider getting paid by the health plan would come out of the amount. Of the $2,500.00 20% would be "paid" or owed by the state employee as a deductible and 80% would be the responsibility of the state health plan. Due to the amount of bills that are paid by the state health play the plan may only have to pay 50% of the 80% to satisfy that debt in full. Under bill vs. paid the state worker would not be able to present the 30% reduction to the jury as an incurred medical expense as it would not be actually "owed", the state worker would STILL have to pay the state health plan back out of any recovery the 50% they "paid" for the medicals.  This seems reasonable until you consider that those without health insurance get no such reduction. Why would our legislature allow injured workers and those who have worked hard for health insurance to be taken advantage of... money -- in the form of contributions from automobile insurance companies who are the only ones who will actually see a benefit from this plan. Who benefits from the billed vs. paid option? Doesn't it make sense not to pay for what is not actually "owed"? In reality the only one who benefits is the at fault party and their insurance company. The not at fault party - the victim--gives to the defendant (the one who caused the problem in the first place) their benefit in having purchased insurance or had a good enough job to purchase insurance in exchange for nothing... The drunk that ran head on into the family of four on the way home from the circus gets the benefit of the parents having good jobs? Who of the two of them should get that benefit? If there is no health insurance then the bill is owed in full. Why is a system that rewards those who are at fault good for us? The short answer is that it is not good for the victim and quite frankly the only benefit is for the insurance company who represents the drunk driver and whose identity in North Carolina is never mentioned during trial. Yes, that is correct, if the defendant drunk driver has auto insurance who will pay his bill, it is against the evidence rules to mention that during a trial, but the fact that the injured person is hard working and has purchased their own insurance is admissible...  Truth is truth, unless you try cases regularly and then truth is whatever you can prove in court. As an attorney we are constantly criticized for "bending" or "spinning" the truth.  In fact, the rules that determine what is and is not admissible are determined by our state legislature, not our state Supreme Court.  In many states the Courts determine the evidence rules, but in North Carolina evidence is determined by non-lawyers, our legislature.  In reality, automobile insurance should be as admissible as health insurance, or even better, they both should not be admissible.  Mentioning one without the other creates a horrible fiction where those involved in the process loose confidence in the system.  North Carolina's legislature made a mistake passing the automobile insurance bailout and should amend it as so

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