Injured while driving for work? Should you report your injury as a workers' compensation injury or simply allow the case to be handled as a personal injury? Often its tricky to know whether to report your automobile accident case as a workers' compensation case as many people are concerned about their employer discriminating against them for getting injured while working.
Why do you need a trial lawyer for your serious injury case? On September 13, 2013 I was invited to try a mock personal injury trial to a room of approximately 100 personal injury lawyers from all over North Carolina at the North Carolina Advocates for Justice office in Raleigh. During the trial attorneys from all stages of their practice, young and experienced alike, came forward to discuss how to handle issues in their cases. The experience was very uplifting and emotional for me as attorneys whom I have idolized, one I have known and admired since long before I became a lawyer, approached me to ask advice about how to protect their clients. Nothing builds your ego like a college asking your advice. Nothing destroys your ego like not having a good answer for that attorney. This fraternity of attorneys who try their client's cases to juries and invest emotionally and financially in their clients is a rare group. This same group of attorneys shares their collective knowledge on the premise that in helping a college to assist his/her client they raise the tide for all injured persons throughout north Carolina. Why you should hire a trial lawyer. Why hire a "trial" lawyer to assist in your claim? We have earned the title by winning and quite frankly loosing cases on behalf of our injured clients and have learned the true value of cases throughout North Carolina. Often in loosing a case for a deserving client, I have learned how to assist the next client, give better advice about settlement of cases and put my next client in a better position to recover for their injuries. Post settlement the medical bills, liens and costs must be accurately accounted for and properly negotiated to give our clients the best result. Whether you have a social security disability (SSI) claim, workers' compensation injury or a serious injury from an automobile collision - think about hiring a trial lawyer and putting that experience to work for you! Joe Tunstall
Social Media after a Car Accident or Personal Injury?? Our clients rarely ask whether they should post to their social media (Facebook, twitter, Instagram, etc) after a car accident or injury case -- they just do. Our society is obsessed with instantly sharing what we are doing, what is happening to us and how we are reacting to our own lives. In the past year, our attorneys have seen a significant increase in requests in discovery (written requests called interrogatories, request for the production of documents and verbal requests at depositions) for logon information for our clients Social Media and requests that they produce the history of their account. Why would the insurance defense attorney (attorney hired by the defendant's insurance company to defend them) care if I have 500 friends on Facebook or 1,000 Twitter followers? They don't. What they are counting on is that many of us share a lot about our lives, but rarely do we share the really ugly parts of our own pain and the shame of having pain and problems following injuries from a collision or injury. Often the best advice is what my grandmother told me many times -- don't put anything in writing you don't want to explain to your grandmother. That is especially true of pictures. Joe Tunstall, why use a trial lawyer After a car accident our clients may post a picture of their vehicle, but rarely do they feel compelled to place a picture of themselves with no shower, hair messy from lack of sleep due to pain, stressed and frustrated for all their friends, co-workers and family to see. Instead they may post a picture of their next GOOD hair day. Although there is nothing WRONG at all with wanting to show your good day, your best days, to family and friends -- the insurance company lawyers know that if a jury sees your smiling face at a birthday party two weeks after the car crash, despite the fact you were in pain when you went, left early after taking a pain pill and didn't sleep that night -- the picture of your smiling face is enough to expose to the jury that you are exaggerating. When you have to explain all the good looking pictures, the only ones you would want to post, even when your in pain and having a tough time, it erodes the juries confidence in your complaints of pain. In Virginia an attorney who was past President of the Virginia Trial Lawyers Association was sanctioned for advising a client to remove damaging photos from his Facebook page after receiving a request from the insurance defense attorney to produce the same. article. An attorney cannot assist a client in removing or erasing discoverable material. A client must have the good sense not to post pictures of themselves they would not want to discuss with a judge, jury or their own grandmother. They must also understand that if they tell a jury about all the pain they had for six months in 2011 and the only pictures are of them smiling with their children at the park (good days) and not of them on the couch afterwards sleeping from the pain their credibility will be attacked. If you have questions regarding this post visit us at our own social media where we still only post the good days. @ncpilawyer on twitter and O'Malley Tunstall Facebook on Facebook. Raleigh office of O'Malley Tunstall, PLLC
Very courageous attorneys from North Carolina at Kirby & Holt, L.L.P recently had a rare opportunity. They were able to help shape the law across the country by challenging North Carolina's interpretation of medicaid reimbursement in accident and injury cases. Their argument was that North Carolina's procedure was arbitrary and often hurt those needing help the most; children. In WOS v. EMA 568 U. S. ____ (2013) the court held; "The task of dividing a tort settlement is a familiar one. In a variety of settings, state and federal courts are called upon to separate lump-sum settlements or jury awards into categories to satisfy different claims to a portion of the moneys recovered. Indeed, North Carolina itself uses a judicial allocation procedure to ascertain the portion of a settlement subject to subrogation in a workers' compensation suit. It instructs trial courts to "consider the anticipated amount of prospective compensation the employer or workers' compensation carrier is likely to pay to the employee in the future, the net recovery to plaintiff, the likelihood of the plaintiff prevailing at trial or on appeal, the need for finality in the litigation, and any other factors the court deems just and reasonable." N. C. Gen. Stat. Ann. §97- 10.2(j) (Lexis 2011). North Carolina would be on sounder footing had it adopted a similar procedure for allocating Medicaid beneficiaries' tort recoveries. It might also consider a different one along the lines of what other States have done in Medicaid reimbursement cases. The State thus has ample means available to allocate Medicaid beneficiaries' tort recoveries in an efficient manner that complies with federal law. Indeed, if States are concerned that case-by-case judicial allocations will prove unwieldy, they may even be able to adopt ex ante administrative criteria for allocating medical and nonmedical expenses, provided that these criteria are backed by evidence suggesting that they are likely to yield reasonable results in the mine run of cases. What they cannot do is what North Carolina did here: adopt an arbitrary, one-size-fits all allocation for all cases." WOS v. EMA 568 U. S. ____ (2013) Any reader of our blog knows we constantly address the issues involved in how workers' compensation liens work within third party (accident and injury) cases. The Supreme Court continued; "North Carolina's statute, therefore, is pre-empted if, and insofar as, it would operate that way.And it is pre-empted for that reason. The defect in §108A-57 is that it sets forth no process for determining what portion of a beneficiary's tort recovery is attributable to medical expenses. Instead, North Carolina has picked an arbitrary number--one-third--and by statutory command labeled that portion of a beneficiary's tort recovery as representing payment for medical care. Pre-emption is not a matter of semantics. A State may not evade the pre-emptive force of federal law by resorting to creative statutory interpretation or description at odds with the statute's intended operation and effect." "North Carolina's argument, if accepted, would frustrate the Medicaid anti-lien provision in the context of tort recoveries. The argument lacks any limiting principle: If a State arbitrarily may designate one-third of any recovery as payment for medial expenses, there is no logical reason why it could not designate half, three-quarters, or all of a tort recovery in the same way." WOS v. EMA 568 U. S. ____ (2013) Thanks to these courageous attorneys who have spend incalculable hours helping a client, a child and a state.
A Guardian Ad Litem cannot be charged with the cost of a lost case for the minor they represent. The North Carolina Court of appeals recently addressed the issue of taxing costs against a guardian ad litem appointed to represent a minor child in litigation. First, a minor (someone under 18 years of age or an incompetent) cannot file a lawsuit on their own. They are only allowed to do so through someone appointed as their guardian ad litem or guardian at law. This used to be called the "next friend" doctrine and prevents someone under 18 from contracting or creating a situation that binds themselves. An easy example is when a child is seriously injured in an automobile collision, they must have a guardian ad litem file suit on their behalf for their harms and losses including lifetime injuries. In Stark v. Ford Motor Company, NO. COA09-286-2, the NC COA concluded that the taxing of costs against the guardian ad litem in the absence of a finding of bad faith was an abuse of discretion. Essentially it would not be fair to require a minor child to find someone willing to take the risk of being charged personally with the costs of the court if they lost to file a lawsuit on their own behalf. More interestingly, in the Stark case, the court did not address the appropriateness of charging personally a minor child with the cost of the trial. How can someone who cannot even file their own lawsuit be responsible for what their "next friend" or guardian ad litem decided to do when they were only 2 or 3 years of age? If you have any questions about recovering for your damages, either for yourself or a child here in North Carolina, feel free to contact our office.
Car crash while working? You must pay Workers' Compensation back. One of the main reasons to hire an attorney familiar with both workers' compensation and personal injury (automobile accident and injury claims) is that you have options at the end of your claim as to what you must repay to workers' compensation out of your injury verdict or settlement. Personal injury, workers\' compensation attorney -- Joe Tunstall N.C. Gen. Stat. Ann. § 97-10.2 (j) states "Notwithstanding any other subsection in this section, in the event that a judgment is obtained by the employee in an action against a third party, or in the event that a settlement has been agreed upon by the employee and the third party, either party may apply to the resident superior court judge of the county in which the cause of action arose or where the injured employee resides, or to a presiding judge of either district, to determine the subrogation amount." N.C. Gen. Stat. Ann. § 97-10.2 (West) Therefore, your attorney may find it appropriate to file a motion with the court asking the judge to set the amount of the recovery rather than merely repay the lien. In the Leggett case, Joe Tunstall, filed a motion arguing why workers' compensation should recover none of the money from a client's serious injury. The Court of Appeals agreed with the trial judge in allowing no recovery for the workers' compensation insurance company. "N.C. Gen.Stat. § 97-10.2(j) grants the superior court discretion to determine the amount of the employer's lien when a settlement is reached between the injured employee and the third party tortfeasor. See id. The trial court may reduce or completely eliminate a workers' compensation lien if warranted by the facts, and this Court may not interfere absent an abuse of discretion." Leggett v. AAA Cooper Transp., Inc., 198 N.C. App. 96, 100, 678 S.E.2d 757, 761 (2009). The Court of Appeals held that one reason for upholding the elimination of the lien was "Plaintiff's evidence at the hearing included Plaintiff's testimony and eleven marked exhibits, including Plaintiff's medical records." Leggett v. AAA Cooper Transp., Inc., 198 N.C. App. 96, 101, 678 S.E.2d 757, 761 (2009) N.C. Gen. Stat. Ann. § 97-10.2(j) further states "The judge shall consider the anticipated amount of prospective compensation the employer or workers' compensation carrier is likely to pay to the employee in the future, the net recovery to plaintiff, the likelihood of the plaintiff prevailing at trial or on appeal, the need for finality in the litigation, and any other factors the court deems just and reasonable, in determining the appropriate amount of the employer's lien." N.C. Gen. Stat. Ann. § 97-10.2 (West). It is clearly not appropriate to file a 10.2(j) motion in every case with workers' compensation and liability proceeds. The ability to know when to file the motion and when not to file the motion is why you pay an experienced attorney who handles these claims on a daily basis. If you have any questions regarding personal injury, automobile injury cases or how they affect your workers' compensation claim; feel free to contact our office.
Learning to do a cross examination is like learning to do anything else; you must practice, make mistakes and then learn from those mistakes to correct and hone your craft. If you ask a practicing trial lawyer, most will agree that learning to do a good direct examination that appears like a conversation, elicits the necessary information and does not result in constant objections is more difficult to master than a laser cross examination, however, even when you muddle through a direct, rarely can you do significant harm to your case like a poor cross examination. Below find the rules I keep posted in my trial cheat notebook. 1. Laser focus your cross examination. 2. Lead the witness, cross examination is not a direct examination. 3. Always complete your question with a yes or no answer only. 4. Follow your own order. 5. Start with eliciting helpful information for your case. 6. Don't overreach. Cross Examination is not a direct examination where you attempt to obtain information by asking open ended questions that allows a witness to answer in sentence or paragraph form. A good cross examination is a laser focused examination of what a witness has already testified to that allows you to question, exacerbate or challenge already given testimony. The work mistake I have seen over the years by adverse counsel in their cross examinations of my clients involve forgetting the point of cross examination and turning their examination into a deposition of my client. Cross examination is not the time to learn information nor is it a time to obtain information about my client that you did not already know. The old adage "Never ask a question at trial you don't know the answer to" is imperative when you are attempting to question a hostile witness. If you ask an open ended question whereby you are attempting to elicit information, you give that person an opportunity to spin and frame their answer in such a way that negatively impacts upon your case, i.e. you are no longer doing your job. Cross examination, when done correctly, does not have to go on forever. In fact, if you look at the rules I use for my own cross examination, you will see I attempt to remind myself at every stage not to over embellish my cross examination. I have seen an expert derailed in a few short questions and seen trials turn with a one sentence cross. The second biggest mistake I have seen in cross examinations is to forget how to frame your questions. If you are representing someone in a courtroom than you have some advance notice of the facts of your case. The only real exceptions to this rule are prosecutors in criminal district court who have the unenviable task of framing their cross examination while an officer whispers the true facts of the case in their ear. That exception aside, we are paid to prepare our cases in advance of the hearing or trial. For cross examination that involves becoming familiar with all the facts of the case, pouring over each witnesses testimony or potential testimony if not prior deposition was given and then framing every question for that witnesses in such a way that they; a. give positive information that helps our case first, b. that we shape our other questions in such a way they can only give a yes or no answer, but the question itself suggests the answer or facts. For adverse witnesses you must lead them in the direction of the answer you want them to reach by the way you ask the question. You may interject your own beliefs, thoughts and especially interpretations of the facts as you ask your questions. You must always keep in mind your audience. In front of a judge in a bench trial I have a lot more latitude with cross but I don't need to exhaust a subject or emphasize a point the way I like to do with a jury. Often in a short cross examination I may pause after asking an important question for upwards of fifteen or twenty seconds while I look at either the witness or the jury. Fifteen or twenty seconds can seem an eternity, but not long enough to get a judge to make you move on. In an automobile collision case where a young twenty-two or three year old witness was testifying that his mother had the green light my cross was two questions. First, Mr. Taylor isn't it true that you were sitting in the backseat immediately behind the passenger seat as you approached the intersection. Second, I'm sorry you broke your arm from the impact of this collision; I'm assuming a good young man like you would never have made a claim against your own mother, you didn't did you. In that case I really never cared what Mr. Taylor had said about the light being green or red. He was in the backseat and I found it a little ridiculous the defense lawyer was allowing him to testify at all. There were several other witnesses that had already testified my client had the green light. The issue for that case was that there had not been enough impact to cause my client's back injuries. In fact, the pictures of the damage to my client's vehicle were less than impressive. Therefore, I simply wanted to use his testimony to bolster my client's claim that it was a significant impact despite the low visible damage between the vehicles. Getting in that he broke his arm without even having that the main focus of the question was a bonus. Second, in a very anti-lawsuit county, I wanted the jury to understand the son had made a claim for his own damages which had been paid by his own mother's insurance company. This was a gift from the other attorney to put this young man on the stand; I had to take advantage of it without looking like a jerk. Always make sure your questions on cross end with only a yes or no answer. It does you no good to frame your question in such a way that helps you only to leave the door open for a witness to be able to explain away the answer. Yes, a very well prepared witness can always answer with, yes or no and then explain, but rarely does that help them and instead it appears they are trying to talk their way out of the answer rather than giving a good answer. The old lawyer saying is three hours of preparation for every hour of trial is never as true as in cross examination. Spend your cross examination time drafting numerous statements you want the adverse witnesses to say and then turn them into questions. Isn't it true that... is an easy way to ask just about anything. Then don't forget to narrow down your list of questions into a few narrow but powerful statements. Cross is still a laser being used as a paintbrush. You're cutting away the previous testimony to get to the heart of your issue with the witness and leaving a visual image in the jurors' minds. The visual image you want the jury to remember about a witness often does not follow in the same order as direct. You should never start by apologizing to the jury or the witnesses for skipping around, just do it. If you follow the same order as the direct examination you make it easy for the jury but you don't paint the visual image you wanted to paint, instead your helping to paint the other sides visual. Start by eliciting anything helpful. Why, well if I attack you first are you more likely or unlikely to help me? You also should never forget the idea of primacy and recency. I like to start cross by pulling out any fact that could help support my client's version of events and finish with the most helpful negative statements about the witness. This is not set in stone. If the witness has made big points you may need to take those points, those swords used against your client and break them over your knee one at a time without regard for pulling any positive information from the witness, or finishing with an obvious point the witness must agree with that makes their previous point look ridiculous. Don't forget, cross examination is your friend, use it as a tool. You pick the order of questions that best helps your client's position. It is also okay to jump back and forth between two or more unrelated points if you can get concessions or admissions from the witnesses on those points. Learning when to stop a cross examination and when to just not cross examine a witness at all is all about experience. If there is nothing you can gain, no positive point to make or concession your sure to draw out, sometimes it is better not to ask anything. In a civil case often the defense not asking any questions of a lay witness is more powerful than asking if they are friends and if the witness will do anything for their friend. Those questions just aren't helpful as the jury can put themselves in the position of the person testifying for a friend and would be annoyed by the implication the witnesses would lie for a friend. This does not mean you simply don't cross a tough witness. Often young attorneys will not cross a witness if they are unsure how to handle the witnesses and it appears to the jury that the attorney is admitting or consciously agreeing with the testimony. Even if you ask one question and make a point, even a little point, it makes since to ask that question if the witnesses hurt you. Less is often more in cross examination. Don't overreach and try to make the knockout blow in one sentence. The witnesses may not agree that it was a hard impact that could have injured someone, but they may agree with you that several people complained of pain at the scene, that the vehicle was pushed sideways by the impact, that the suddenness of the impact scared them, and that the plaintiff was very nice at the scene. Cross examination can also be the death of a thousand small cuts. I have seen good attorneys cut apart a witness and never go head to head with them. Instead they took individual statements they have made and by getting the witnesses to agree to these statements, that on a whole make them look ridiculous, accomplish more than they could have by attacking them directly. After conducting hundreds of cross examinations in trials and hearings, one resource still stands out; The Art of Cross-Examination by Francis L. Wellman. This book sets out the true art that is involved in examine a witness. I believe this book is now on the fourth edition and it gives a look into the human mind and the way humans interact that explains why attacking someone head on is so difficult. I cannot recommend this book enough. After reading the original book, recommended by my senior partner when I first began practicing law, the idea of attacking a witness through small, organized statements that they must agree with without taking the witnesses statements head on first began to make sense. I have always kept the information learned in this book in the back of my mind as I prepared for more and more cross examinations. One example in the book discusses multiple witnesses to the same incident each having slightly different perspective and thus each remembering the incident differently. You cannot change what someone believes they saw, but you can certainly get them to agree to enough facts so that the jury understands how those similar facts make your client's version of events more credible. The book also talks about the honest vs. dishonest witness. It is almost impossible to truly cross examine the dishonest witness as they will not agree with the facts that are obvious and will continue to push their viewpoint rather than the truth. Remember cross examination should not be about taking a sledge hammer to concrete, but instead like using a laser to cut a distinct line through marble.
Joe Tunstall, the head of our personal injury department, had one of his recent settlements reported in North Carolina Lawyers' Weekly. The settlement was for one of our wonderful clients severely injured in an automobile collision who recovered $879,000.00. Although we have had wonderful results over the years for many clients, always remember that every case is different and results of one case are not comparable to another. Please visit our web page for additional information regarding automobile accident results.
Often people first call our office out of concern over payment for large medical expenses as a result of an automobile collision that was not their fault. The law in North Carolina after the passage of HB542 and SB 586 has changed and only a portion of any bill, that amount that is neccessary to satisfy a medical bill, is admissible to prove evidence of medical expenses. Rule 414 Evidence of medical expenses. Evidence offered to prove past medical expenses shall be limited to evidence of the amounts actually paid to satisfy the bills that have been satisfied, regardless of the source of payment, and evidence of the amounts actually necessary to satisfy the bills that have been incurred but not yet satisfied. In the real world, many clients debate whether or not to use their health insurance to pay their medical bills after an injury. They don't want to use the insurance because it was not their fault, they are afraid of higher premiums and don't want to have the hassle of filing the insurance. Often, many hospitals take that decision away from the patient by refusing to bill the health insurance regardless of whether the patient would like it billed or whether the patient has already paid for health insurance that should pay the bill. Many insurance companies, such as Medicare, are secondary payors. That means they pay only if no one else pays. However, even Medicare states that when a bill is left over 120 days it shall become primary and pay. In these situations, insurance such as Medicare of the State Health Plan is entitled to obtain reimbursement for all the bills paid by them by the third party at the end of the case. Regardless of the reimbursement provisions (called subrogation) many hosptials take the decision away from the injured party and refuse to bill the person's health insurance hoping for a greater recovery from the at fault party in the collision. However, the hospital doesn't take the risk of the patient recovering the amount from the at fault person's insurance, instead they often make claims against and sue the patient for the unpaid bill, even though they could have accepted the insurance. The Charlotte Observer has recently written a series of articles on these not-for-profit hospitals suing uninsured persons for their unpaid medical expenses. Articles. Another article by the Charlotte Observer even references a veteran with tri-care insurance whom they sued because they could not properly bill the insurance. Article 2. In another article Duke University failed to properly code an insurance bill and hired a collection agency to hound and call repediatly a couple who had proper insurance. Article 3. Forbes Magazine has chosen to call this the Tort-Reform for Hospitals. In their article they describe that not-for-profit hospitals are obtaining significant benefit from directly suing their patients rather than working with the insurance companies or using low paying health insurance such as Medicaid. Our clients, and many other persons injured through no fault of their own should worry. Just because you have been financially stable and smart, it will not prevent
Most people are aware there is a requirement that to have an automobile in North Carolina you must carry at least minimum liability limits. The North Carolina Liability Insurance Requirements for Private Passenger Vehicles requires to meet the required minimum limits coverage that you must have at least the following amount of insurance protection: $30,000 of coverage for injuries or death involving one person in a single accident. $60,000 of coverage for injuries or deaths involving two or more people in a single accident. $25,000 of property damage coverage. This minimum liability coverage comes into play when you are the at fault driver in a motor vehicle collision in which there is bodily injury or property damage. With medical bills for a simple Emergency Room in the range of $1,500 to over $2,000.00 on average depending on the condition the $30,000.00 limit an be quickly exhausted. Many people also carry medical payment coverage. Medical payment coverage (med pay) is no fault insurance covering the owners or passengers in a vehicle regardless of fault reimbursing medical expenses and lost wages. It is often some of the cheapest and most useful insurance coverage and can be typically sold in amounts from $500.00 to $25,000.00. Higher amounts are sold by some companies. Joe Tunstall describes automobile insurance from an attorneys prospective. In North Carolina drivers and owners of vehicles are also required to carry uninsured motorist coverage. N.C.G.S. 20-279. Uninsured motorist coverage provides insurance when the at fault driver is driving a motor vehicle without current liability insurance. The limits for uninsured motorist coverage range from North Carolina minimum limits of $30,000.00 per person to $1million. Of course the price is dependent upon amount of coverage purchased. In case of a serious injury where the other person carries some amount less than the amount to reimburse for the damages, you can purchase underinsured motorist coverage. N.C.G.S. 20-279.21(b)(4). Underinsured motorist coverage is typically some amount between $50,000.00 and $1 million in coverage. Undersinsured motorist coverage is paid when the injury is greater than the amount of the defendants liability coverage and you have purchased an amount of coverage greater than the defendant's insurance coverage.