PERSONAL INJURY LAWSUITS - CHAPTERS ONE AND TWO
Copyright © 2018 by Clayton Rawlings, Esq.
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Printed in the United States of America. Published in 2018
“The supreme art of war is to subdue the enemy without fighting.” – Sun Tzu
“A jury consists of twelve persons chosen to decide who has the better lawyer.” – Robert Frost
"When you have no basis for an argument, abuse the
plaintiff." ~ Cicero, Roman politician and lawyer
“Prepare a case for settlement and you will try it, prepare
a case for trial and you will settle it.” – Clayton Rawlings
This is a book that explains personal injury law in conversational English. This is not a textbook for a law school, but rather an introduction to civil litigation for actual litigants. Every attempt has been made to avoid “legalese” so people with little or no legal training can understand it. No one plans or expects to be in court on a personal injury case. Then out of nowhere, life happens. The entire process can be very confusing for the uninitiated. It is my hope to pull back the curtain, so to speak, so people will not be intimidated if they find themselves thrust into, what appears to be, the very hostile environment of litigation.
Most cases are settled before trial. That said, when the other side will not be reasonable, you will find yourself in front of twelve citizens “fair and true.” Keep in mind that “fair” is a relative term. One person’s justice is another person’s atrocity. For that reason alone, an understanding of effective litigation is crucial. It has been my experience that the public at large has no real understanding of how to resolve a lawsuit. They hear things, see things, and read things that create a belief system as to how the system works. It starts with “make a ridiculous demand and then stand on it.” My favorite is “once you make a demand, they will settle. They can’t afford the publicity of a trial.” Nothing could be further from the truth. Litigation is controlled exclusively by the insurance carrier. They do not care one wit about what publicity will do to their insured. They just want to get out paying as little as possible and they are never afraid to litigate. They employ an army of lawyers for that very purpose.
It seems Google has made everyone a lawyer. I know this because a lot of my time is spent convincing my clients the blogger they thought was brilliant is just flat wrong. Clear your mind of so called “conventional wisdom” for a moment and read the following pages with an open mind. I am happy to take the mystery out of civil litigation in the personal injury arena so you can approach it in such a way as to maximize your recovery. Remember, the right to trial by jury is protected by the Constitution of the United States.
To my wife, Deanna. Always understanding when trial went into overtime. Never angry over missed dinners, cancelled vacation, or working late into the night. The spouse of a litigator has many burdens placed upon them. None of them fair. You faced it all with grace and a smile. You took my clients’ problems on as your own. For that I will be forever grateful.
It was May of 2010 when I participated in the Strategic Foresight Seminar through The University of Houston. Peter Bishop, PhD, was the director of the program and opened my eyes to the concept of “Futurism.” It was Dr. Bishop who suggested I write a book on foresight and the law. It started me on the adventure of a lifetime. Twenty- four radio interviews, four books and four Hollywood screenplays later - the adventure continues. I will always be grateful to Dr. Bishop who convinced me I could write. My entire personal injury practice was built exclusively on lawyer referrals. It was my fellow lawyers who placed their trust in me to get the job done. I will always be in debt to those who allowed me to protect those who could not protect themselves.
This publication is intended to be used for educational purposes only. No legal advice is being given, and no attorney-client relationship is intended to be created by reading this material. The author assumes no liability for any errors or omissions or for how this book or its contents are used or interpreted or for any consequences resulting directly or indirectly from the use of this book. For legal or any other advice, please consult an experienced attorney or the appropriate expert who is aware of the specific facts of your case and is knowledgeable of the law in your jurisdiction.
Hampton & Rawlings
Personal Injury Attorneys
1927 Norfolk St
Houston, TX 77098 www.hamptonandrawlings.com (713) 520-7701
“Where do I begin?!.... Clay Rawlings is one of the best, if not THE BEST! I have referred him to all my friends and family. He is a person that is very compassionate, understanding, and “there for you” when it is most needed. He has never let me down or anyone that I have referred. He is not just a fabulous person but a remarkable one as well. His work ethics and attention to detail are impeccable. There are not many attorneys that will go the extra mile for their client as Clay has. I am forever thankful to Clay Rawlings and he will always get referrals from me!”
Michael Pieniuta A Satisfied Client
“I have referred all my personal injury cases to Clay Rawlings for over 25 years and he never let me down. Clay is the most tenacious personal injury attorney I know, and what a superb brilliant legal mind he has. There are very few attorneys that ever reach his caliber, yet he is humble and a natural mentor. It is a true honor and privilege to work with him, and watch him work his magic in a courtroom.”
Stephen K. Leatherman Attorney at Law Houston, Texas
“I have known Clay Rawlings for over 30 years and have had the honor of assisting him in mediating cases I have referred to him. Clay approaches mediation as if he were trying a case to a jury. When he addresses the opposition, they are overwhelmed with the evidence and the visual aids he has prepared. I watched him go after a slumlord who allowed his properties to fall into such disrepair a young mentally-ill girl lost her life in a fire. The slumlord's bravado quickly melted when he realized Clay had found his numerous properties and would take them all to pay for the young girl’s loss of life. He forced the slumlord to pay a substantial settlement out of his own personal funds because he had no insurance. But that was not enough for Clay. He also required the slumlord to place fire detectors in all his properties as a condition of the settlement. This only happens when you come to mediation so prepared the other side realizes a trial would inevitably lead to a large jury verdict.”
James Randall Smith Attorney at Law
“I’ve known Clay Rawlings for 35 years and I have tried cases with him as well as against him. Clay is the lawyer’s lawyer in personal injury and I hold his legal acumen in the highest esteem. He possesses an exceptional understanding of people, the law and the Court. Clay couples an unparalleled trial experience with an uncanny ability to read the essential elements of any case, whether witnesses, damages, facts or theory. In short, he’s a damn good lawyer!”
Michael Peck Attorney at Law
TABLE OF CONTENTS
i. Preface 3
ii. Dedication 5
iii. Acknowledgements 6
iv. Disclaimer 7
v. Testimonials 8
vi. About The Author 13
- Definition Of A Tort 16
- What Should I Do At The Scene Of A Serious Collision? 19
- Importance Of Evidence In A Personal Injury Case 26
- How Long Does A Personal Injury Case Take To Settle? 34
- Damages That You Can Recover In A Personal Injury Case 39
- Independent Medical Exam 45
- Do Pre-Existing Injuries Affect A Damages Claim? 49
- Beware Of Predatory Lenders 51
- Why Is It Critical To Hire An Attorney To Represent You? 53
- How Is Hampton & Rawlings Different From Other Firms? 60
vii. Index 68
viii. Notes 70
ABOUT THE AUTHOR
I received my undergraduate degree in 1977 from the University of Texas. I then graduated from The University of Houston Law School with a JD in 1980. I have been a licensed attorney ever since and have spent my entire 39 years in litigation. I have tried to verdict over 150 cases. Starting as an Assistant District Attorney for Harris County, Texas, I handled everything from auto theft to capital murder. I left the DA’s office in 1985 and with my partner, Keith Hampton, we formed Hampton & Rawlings. We started as a criminal defense firm for the first six years. In 1991 I tried my first personal injury case and obtained a jury verdict of $1,061,000. We then spent the next 28 years focused primarily on obtaining economic justice for the injured and disabled. Since that time, Hampton & Rawlings has recovered many millions of dollars on behalf of our clients. It has been my honor to serve with my partner, Keith Hampton, for 34 years.
I am married to the love of my life and we have raised 5 wonderful children who are all educated and raising families of their own. My oldest son owns a very successful barbershop in Santa Monica, California. My youngest daughter won the silver medal in the NCWA finals and was declared an All American. She was the first female wrestler to ever represent The University of Texas. My second youngest daughter is in an artillery unit in the United States Army. She is presently assigned as a gunner on a multi rocket launcher and her unit is about to deploy to Afghanistan. They have been assigned as support for an elite Rangers Unit. I am proud of all my children. I raised my girls to be warriors. It never occurred to me they would take it literally.
I have always been a thrill seeker. For that reason I have been a downhill snow skier, scuba diver (including wreck, cave, and night dives), and skydiver. I flew with the Texas Air Aces and engaged in mock aerial combat at 10,000 feet. I parachuted twice from 13,000 feet. My wife and I have run with the bulls in Pamplona, Spain three times. Nearly gored twice. We returned to Texas, bruised, bloodied, but head unbowed. It is that same sense of adventure that I take into the courtroom.
DEFINITION OF A TORT
It is important to understand where liability comes from. The technical term for a personal injury case is a tort. The term “tort” means a wrongful act or infringement of a right, leading to civil liability. There are four elements that must exist for a tort to be actionable: duty, breach of duty, causation, and injury. In order to claim damages, there must be a breach of the duty of the defendant towards the plaintiff, which results in an injury. The three main types of torts are negligence, strict liability (product liability), and intentional torts.
For example, when operating a motor vehicle, you have a duty to the public to operate your vehicle in a reasonable and prudent fashion. This would include obeying all traffic signals. If you run a red light, that is negligence. You have violated a duty you have to the public. If you strike another vehicle and injure someone, then your negligence caused the injury and you are responsible for all the damages the other driver has sustained. It is no more complicated than that example. Duty, breach, causation, and damages are what defines a tort.
Strict liability comes into play on product liability cases for design defects or a manufacturer’s failure to warn. They have put a dangerous product or drug into the stream of commerce and are now liable to those who were injured.
An intentional tort is one where you intended for things to happen. An assault would be a good example. You intentionally punching a person in the face would be the very definition of an intentional tort. You are responsible for all the damages that were caused by your striking the other person. A word of caution: you cannot insure against an intentional tort, as it is against public policy. If you intentionally strike someone, you will be personally responsible for the damages. There will be no liability coverage to pay the damages.
The civil justice system is rational. The occasional ridiculous verdict appears on the front page and the reversal, months later, appears hidden on the back page. From 1986 to 2004, civil jury trials in Texas declined by 49%. Personal injury damage cases are less than ten percent of all cases filed. Texas residents were hoodwinked when they voted for tort reform in 2004, to stop a personal injury litigation crisis that literally did not exist. Well-meaning people were duped into tilting a civil justice system against themselves. No one thinks it will happen to them or their children, until it does.
The defense can now add defendants who are insolvent, or even unknown, to diminish the victim’s recovery, without recourse. It is called submission of a responsible third party and it is why you need an exceptional lawyer to prevail in Texas in the post tort reform era.
WHAT SHOULD I DO AT THE SCENE OF A SERIOUS COLLISION?
When someone is involved in an accident, the immediate decisions they make will have a lasting effect on the value of their case. I will share with you a hypothetical situation that is actually a conglomerate of many different cases I have handled in the real world.
Your friend, we will call him Bob, was just hit by an 18-wheeler and forced into a high impact collision with a freeway barrier. The crash really shook him up. He considers himself a good citizen and he was taught to be a stand-up guy. Bob tries to minimize what happened to him and he waves off the offer of an ambulance. The driver admits the accident was his fault and pleads with Bob not to call the police. Bob agrees and gets a ride home from a friend. The next day, he contacts the company’s insurance carrier to file a claim. The adjuster asks, very casually, how Bob is doing.
Not wanting to appear like a whiner, Bob assures the adjuster that he is fine. The adjuster puts Bob at ease as they talk about sports. He shares with the adjuster that he played college football and is an avid hunter and outdoorsman. Bob gets the sense that the adjuster is a great guy and they are becoming friends. The adjuster totals Bob’s car and sends him a check for his property damage immediately. This confirms Bob’s suspicion that he did not really need a lawyer. Two days later, the nagging back pain has become unbearable and Bob cannot do his job like he did before. He takes over the counter pain medication and tries to get through it. He continues working in utter misery because he has bills to pay.
After two weeks of suffering, Bob finally breaks down and goes to a doctor. The doctor, fearing the worst, has an MRI performed, which shows Bob has two ruptured discs in his lower spine and needs a fusion. Bob does not have health insurance and the cost of a double fusion in Texas is $120,000. Bob pleads with his doctors and they agree to perform the operation for $80,000 cash up front. Bob was given a written estimate and he sends it to the insurance adjuster, along with the MRI and medical record from his doctors. This is where Bob is about to learn a hard lesson about the realities of a personal injury case.
When the adjuster declines to pay and offers Bob $5,000 to settle the claim, he threatens to get a lawyer, thinking that threat will bring the adjuster to his senses. He then offers to settle the whole claim for $60,000. Bob assumes his doctors will be as reasonable with him as he is being with the insurance carrier. Unfortunately, Bob is wrong. Bob is eventually forced to hire a personal injury attorney. He forgets to tell him about his dealings with the adjuster. The personal injury attorney contacts the carrier to inform them Bob has counsel. He then sends all the medical records with a demand for $300,000 to settle the claim. The adjuster responds that Bob did not get hurt in the accident.
The adjuster ticks off all his reasoning as follows: Bob refused an ambulance, he never went to the hospital, never missed work, was never treated, told the adjuster he was fine, and admitted to playing college football, which is where he must have injured his back. The adjuster also pulled up Bob’s Facebook page and downloaded photos of Bob waterskiing and hiking. Just getting warmed up, the adjuster continues: before getting an attorney, Bob was willing to take $60,000, so the demand for $300,000 is lawyer-driven and Bob is a fake, just trying to get rich off the misfortune of others. In addition, the adjuster informs counsel he has interviewed their driver and it turns out the accident was Bob’s fault. Wow! What did Bob do wrong? Basically, everything.
Since you are reading this book, you will not be taken advantage of, like your friend Bob. So, what should you do if you are involved in a serious accident? First, call the police and get an accident report filed by a police officer, so it is not your word against the other driver’s. It does not matter if the driver orally admits fault. They can conveniently deny it later and call you a shameless liar. A police report will end any shenanigans by the defense when it comes to who is at fault.
Second, if you have been hit hard, accept the ambulance ride to the hospital. You are not a doctor and your adrenaline is flowing. Maybe you are hurt and the adrenaline has masked all the pain signals that are attempting to tell your brain you are seriously injured. Your failure to go by ambulance will be used by the other side to say it was not a serious accident. Otherwise, you would have gone to the hospital.
Third, when you are released from the hospital, go straight to a personal injury attorney. Do not use your divorce lawyer, family estate lawyer, or your company’s corporate lawyer. I am sure they are good at what they do, but personal injury law is filled with landmines. You need a professional, especially in the era of tort reform.
Fourth, start medical treatment immediately. If the doctor gives you a prescription, fill it that same day. If you feel bad, call in sick. Fifth, delete all social media. The other side will access it and find things to use against you. How do I know this? I always access the defendant’s social media and use it against them. Be smart and remove any offensive photos or text messages from your cell phone. This includes jokes and political commentary. A jury consists of twelve strangers pulled at random. It is important not to offend them from the outset.
Sixth, do not ever speak with an adjuster without your attorney present. If the other side’s insurance company tries to contact you, do not take the call. If you have answered the call, once they identify themselves, tell them you have an attorney and your attorney will call them. Do not have a conversation with them. Their sole purpose in talking with you is to try to diminish your case. They want to pay as little as possible. They are not looking out for your best interest. Nothing good can come from talking to them. Do not, for a minute, think you are smarter than them or you can manipulate them. They do this for a living.
Seventh, do not ever lie to your lawyer. He or she cannot protect you from things they are unaware of. This is so important I will say it twice. Do not ever lie to your lawyer. If you do, you have seriously wounded your case. Be honest with your doctor and only treat for as long as necessary. Get back to work as fast as you can, with due regard to your health.
I had a client who suffered a radical leg amputation, mid-thigh. He called me early on to inform me he had ruined his case. He had gotten back to work in only 90 days with a titanium rod for a leg. To make matters worse, so he thought, he was also given a raise by a very understanding boss. He had no future lost wages and he feared his economic damages would now be minimal. That young man is now a millionaire. Juries pay money to people they like and we all like people with character and guts. That kid had more courage than any ten people chosen at random. Hard workers receive something in the courtroom that is critical. It is called respect. Always do what your lawyer says. Turn off the news, get off the Internet, and stop talking to friends and family about your case. If you take these steps you are not guaranteed victory but you are already well ahead of the general public. Trust me when I say your lawyer will greatly appreciate the position he or she is in because you played it smart from the beginning.