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I Don’t Recall: Handling an Imperfect Memory in Litigation

The fallibility of memory has far-reaching influence on how the legal system works. It is one of the important justifications for statutes of limitation, which limit the amount of time someone has to file a lawsuit. It shapes rules governing how evidence is gathered and used. And it plays a significant role in shaping the burdens each party to litigation must bear as they work to establish the facts of the case.

Memory is almost always an issue in litigation. Oral testimony about events necessarily requires witnesses to remember events that happened months or even years before. Mistaken impressions can render a particular memory unreliable. For example, it’s easy to not see every detail of the roadway even in normal driving conditions, but someone who has been in an accident may be sure about important details that in fact were quite different than what memory retained: a light that she remembers being red was actually green, and so on. But intervening events can also shape memory. People telling their stories about events may embellish facts, and in time those embellishments could become part of the memory itself. People will also protect themselves from painful memories by unconsciously forgetting or changing details.

Everyone has a different aptitude for remembering things. At one end of the spectrum are people with the rare gift of remembering tiny details many years later. At the other end of the spectrum are people suffering from brain injury or disease, who might not be able to remember what happened to them just a short time earlier. Most people fall in the middle: they’re able to remember important facts, but they might not recall the small details that are critically important to the case. Because memory is so complicated and diverse, attorneys use a number of strategies to verify information, including these:

  • Giving witnesses access to records. If it’s helpful to a witness, lawyers can provide them with documents that are already in evidence, such as letters, notes, emails, and so on, to give them a reference that might help them remember important details. This process always requires care, because showing a witness a record can alter the witness’s memory. The adversarial context of litigation serves to limit the potential for distortion.
  • Finding corroborating evidence. If oral testimony raises inconsistencies it can be helpful to examine other sources of information to compare with what witnesses have said. As they say, a photograph is worth a thousand words.
  • Examining the witness. In some cases, especially those where the most important evidence is oral testimony, the witness may be asked many questions that are designed to test the witness’s overall reliability. Ultimately the power of oral testimony is determined by how reliable it appears to be. Attorneys may try to undermine the value of a given witness by demonstrating that the witness’s memory is highly faulty.

For over 45 years the law firm of Greenman Goldberg Raby Martinez has represented Las Vegas clients in cases involving personal injury, workers’ compensation, and other controversies. Our attorneys work with clients to determine how memory may play a role in their case, so that solutions can be found to potential challenges before they become problems. To learn how we can be of help in your case, call us today for a free attorney consultation. We can be reached at 702-388-4476 or send us a request through our site.

Using Demonstratives to Prove your Personal Injury Case

Demonstrative evidence can be a powerful tool for establishing a legal case. In broad terms, demonstrative evidence refers to materials prepared by a legal team to summarize or illustrate other forms of evidence—raw data, witness testimony, collections of photographs, and so on—in a way that will help a judge or jury interpret and understand it. Demonstrative evidence might come in the form of chart, a table, or a map. Critically, demonstrative evidence has been prepared specifically for trial in reliance upon an underlying set of information.

Because demonstrative evidence is created by a party in the litigation it must meet strict standards to be admitted in court, as determined by Nevada’s evidence law. In simplified terms the evidence needs to have the following characteristics:

  • Relevance. The evidence must have a connection with a material fact that is at issue in the case.
  • Identification and authentication. The sources of facts included in the evidence must be identified and authenticated. In other words, the demonstrative item must not include information that is not otherwise already established in the case. If the evidence presents information that is based on expert analysis or testimony, a qualified witness may need to confirm its accuracy.
  • Usefulness. Evidence needs to be useful to the fact finder (the judge or the jury) to be admitted. “Useful” means, among other things, that the information is presented in a clear and accurate way. By definition, the evidence can’t be deceptive, misleading, or confusing. A chart that distorts a critical piece of information, for example by displaying it in particularly large text compared to the rest of the chart, might be deemed misleading.

Demonstrative evidence always poses a risk that it may unfairly prejudice a jury in ways that are out of proportion to the information that is presented. A stark example of this might be a barrage of explicit photographs of an injured person, formally presented to show the extent of the person’s injuries but strategically intended to evoke sympathy. Courts have the option of limiting or excluding demonstrative evidence that might have a disproportionate or unfair effect.

In a personal injury case the central questions tend to be whether the defendant behaved negligently in causing the plaintiff’s injury, and the extent to which the plaintiff has proven the damages that he or she has claimed. Demonstrative evidence can be useful in both areas. Once witness testimony and documentary evidence has been presented to the court, it can be helpful to summarize it in a chart to show how the defendant’s wrongful behavior led to the plaintiff’s injury. Likewise, preparing a table showing all the ways the injury has harmed the plaintiff, from medical costs to pain and suffering, can help the court form a complete picture of all the ways the injury has affected the plaintiff’s life.

For more than 45 years the law firm of Greenman Goldberg Raby Martinez has represented clients in personal injury cases. We work closely with clients to develop winning strategies for taking on difficult challenges. If you have been injured and you have questions about your case, please reach out to us for a free attorney consultation. We can be reached at 702-388-4476, or ask us to call you through our contact page.

Using a Cell Phone to Record Details of an Accident

Cell phone cameras are valuable tools for gathering evidence after an accident. The first priority after an accident should be to call police and emergency services, stabilize any injuries, and get clear of hazards like burning vehicles. Once those essential steps are taken, and provided that circumstances allow for it, taking photos or even video can help attorneys, insurance companies, and police investigators analyze the accident.

What sort of photo evidence is useful?

The short answer to this question is: all of it. A photograph can reveal things that our minds don’t process in the moment. While we’re focused on the damage to a car we may not see an important detail that is outside the focus of our vision. A photograph may capture this detail and make it available later.

There are limitless possibilities about what may be important to photograph at the scene. Here are some important examples

  • All visible damage to the vehicles involved.
  • Roadway conditions, like debris, skid marks, or spilled oil or other chemicals that might have contributed to the crash.
  • The scene of the accident, including the location of traffic signs and signals, the address, weather.
  • Personal injuries, but note that before taking pictures of an injured person it’s important to first get their consent.

Moving around the scene to capture photos from many angles is important for building up a complete record of the scene. One area where this can be important is if the two drivers involved in the crash have different recollections of how the crash occurred. Having photos from various angles of damage to the vehicles may help investigators determine what actually happened.

Be mindful of the photos as evidence

Once photos of the scene are on your phone it’s important to take steps to preserve them. Getting them downloaded to a computer or uploaded to cloud storage should be a priority. It’s very important to preserve the photos in their original format: editing a photo may raise doubts about its authenticity later on.

Also take care before putting accident photos onto social media sites. The best approach is to avoid making any statements about an accident online, but this can be especially true of photos, which may have unintended consequences, such as offending the privacy rights of an injured individual.

GGRM is a Las Vegas accident law firm

For more than 45 years the law firm of Greenman Goldberg Raby Martinez has helped clients who have been injured in auto accidents recover compensation. If you have been injured in an accident please call us for a free, no obligation attorney consultation. Reach out to us today at 702-388-4476 or contact us through our website.

Tools for Proving Brain Injury

Before a plaintiff in a personal injury case can recover compensation, he or she must prove that the injury exists, and that it was caused by the defendant’s wrongful actions. The existence and scope of many kinds of injury can be proven in straightforward ways: a broken bone can be proven with an x-ray, a burn can be proven with photos of scars, and so on. Brain injuries can be more difficult to prove, because they aren’t always visible and the technology that can reveal changes to a brain’s structure is not readily understood by people outside the medical industry.

Physical proof of brain injury

Some forms of traumatic brain injury can be revealed in much the same way as a broken arm. Advances in medical imaging technologies allow astonishing detail to be reduced to photographs that can be admitted as evidence at trial. There are a number of tools available to capture images of the brain’s structure. These include computed tomography (CT) scans, magnetic resonance imaging (MRI), diffusion tensor imaging (DTI), and positron emission tomography (PET) scans. Each of these technologies reveal different things, ranging from an MRI’s three-dimensional picture to a DTI’s microscopic analysis.

There are challenges associated with using evidence from these scans. The first is that they need to be available at all. In some cases the injured plaintiff doesn’t have access to these technologies, or the access was not timely enough. A second problem is that an untrained person often can’t tell when an image shows damage to a brain. Therefore expert witnesses are often required to help the court interpret the output of the scans. Whenever expert witnesses are involved there’s always a possibility that the defense will bring their own experts to contest the testimony of the plaintiff’s experts. Issues like these can be overcome by experienced personal injury attorneys, but they can complicate a case.

Proving brain injury when physical proof isn’t definitive

Modern scanning technology doesn’t always provide a definitive answer to what is happening in the brain. In many cases the output of a given scan may be interpreted in multiple ways, leaving significant doubt about the existence of the injury. Despite the apparent lack of “photographic” evidence, the person suffering from such injuries knows that something is wrong.

A common approach in such cases is to present evidence of how the plaintiff’s life has changed as a consequence of the injury. Doing this requires building a narrative of change by developing a picture of how the plaintiff behaved before the injury and how that behavior has changed. The plaintiff’s friends, family, and coworkers may be good references. In the age of cell phone video, a plaintiff may have a lot of video to show, for example, that a particular speech impediment was not present before the accident. The plaintiff’s health care providers are often crucially important witnesses in such cases.

Talk to an experienced personal injury law firm about your case

The law firm of Greenman Goldberg Raby Martinez has represented clients in personal injury cases for over 45 years. We are committed to providing each client with personal attention and care. If you have suffered a brain injury and need help sorting through your legal options, please contact us today for a free attorney consultation. We can be reached at 702-388-4476 or through our contacts page.

The Role of Depositions in Personal Injury Cases

Oral testimony often forms a central part of a legal case. For many people outside the legal profession “oral testimony” often conjures images out of courtroom dramas, with a witness nervously breaking down under an attorney’s barrage of questions. The reality is usually quite different. Most personal injury cases settle without going to trial, so courtroom exchanges never happen. Instead, lawyers talk to witnesses in pre-trial processes called depositions.

What is a deposition?

Depositions are part of the broader pre-trial discovery process, during which the parties to the dispute gather facts from each other about the events that led to the controversy. In a personal injury case, discovery often involves a mix of documents (for example, medical records or accident reports) and answers to questions that attorneys pose to witnesses. Such questions can be put before a witness in writing, in so-called interrogatories, or they can be asked in person, during a deposition.

Depositions can be thought of as formal interviews. Attorneys from both sides in a dispute are present and may ask the witness questions. The witness may also be represented by an attorney. The answers given in a deposition are under oath and can be used as evidence at trial. A deposition is typically held in an attorney’s office with a courtroom reporter present to take down a transcript of everything that is said.

The witness’s role in a deposition

The purpose of a deposition is to help the two sides in a dispute clarify what a witness knows about the case. If the case goes to trial, the deposition will have given both sides a better idea of what to expect if the witness is called to testify in court. In practice, personal injury cases rarely go to trial. Instead, they will settle out of court, quite often with the attorneys for both parties negotiating a settlement in light of the facts that are brought forward during the discovery process.

The specific nature of a deposition often depends on the kind of witness that is involved. Depositions of the people directly involved in an incident may delve into a wide range of matters as opposing attorneys seek clarity on facts and probe for weaknesses. For example, in a car accident case one can expect the driver who was allegedly responsible for the crash to be asked about drug and alcohol use prior to the accident. Other potential witnesses may include people who saw the incident, people who can attest to the nature of the plaintiff’s injuries (friends, family, and medical professionals), and expert witnesses who provide insights into technical matters that are germane to the case.

Questions posed during a deposition can be far-ranging. Although attorneys often raise objections during depositions, the witness usually is obligated to answer questions as truthfully as possible even if the question would not be allowed in court. That is because the rules governing depositions are not as strict as the rules of evidence that apply in the courtroom. Witnesses are often represented by attorneys during depositions to protect the witness from questions that stray too far from relevance.

Talk to a Las Vegas personal injury attorney about your case

For more than 45 years the law firm of Greenman Goldberg Raby Martinez has represented clients in personal injury cases. We give each case the personal attention it deserves. Protecting our clients’ interests is paramount to our practice, and that includes helping them get ready for depositions. For a free attorney consultation call us today at 702-388-4476 or ask us to reach out to you through our contact page.

Handling Embarrassing and Damaging Facts in Litigation

People who have suffered personal injury or other harms sometimes are reluctant to pursue legal action because they are reluctant to reveal embarrassing or incriminating details about themselves in a court setting. The facts of the incident leading to an injury may include damaging information about the injured plaintiff, such as drug use, extramarital affairs, or behavior that is prohibited by an employer. A significant part of an attorney’s job is to understand how these concerns may play a role in a case’s strategy and help the client evaluate when and where such concerns should be allowed to take precedence over other tactical concerns.

One thing every potential plaintiff should bear in mind is that very few civil disputes ever go to trial. Most often, private disputes such as personal injury cases get resolved through settlement negotiations. Although such cases still involve filing court documents that can contain damaging facts about the plaintiff, they may avoid the biggest fear many plaintiffs have, of having to air their dirty laundry in a public setting, before a jury.

Broadly speaking, whether a “bad fact” can be avoided in litigation will depend on its importance. Some kinds of information simply can’t be “hidden” during a legal proceeding, because they are vital to the core issues in a case. Such facts can form a key part of the defense, or they may be an unavoidable part of the story the plaintiff must tell to not be accused of dishonesty. For example, if the plaintiff was drunk while crossing against a red light, it’s unlikely that the drunkenness won’t come up, even if the defendant was speeding and texting at the time his car hit the plaintiff. The fact that the plaintiff was drinking may not be particularly damaging, or it may present serious issues (for example, if the plaintiff is an emergency medical technician and was on call at the time of the accident).

Other information may have some marginal value to a plaintiff’s case, but its potentially damaging effects to the plaintiff’s personal or professional life outweigh the benefits of introducing it. Whether such information can be kept out of the legal process will depend on whether the adverse party knows about it, and whether it is relevant to a legitimate discovery request. In some situations both parties may want to keep bad facts hidden. The case of the extramarital affair offers a simple example. If the cheating couple was meeting for a liaison when one of them accidentally struck the other with a car, the purpose of their getting together might be best left off the table.

The adversarial nature of litigation means that the other side of the case will always want to find the most damaging information it can to help build its case. In theory an attorney has an ethical obligation to not blackmail the other side into agreeing to a low settlement offer, but not every lawyer is ethical. It’s important for clients to clearly explain to their attorney all of their concerns about the case before it gets started, so the attorney can set expectations about what matters can be kept private and what disclosures might be unavoidable.

For over 45 years the law firm of Greenman Goldberg Raby Martinez has represented Las Vegas clients in personal injury, workers’ compensation, and auto accident cases. We help clients sort out the pros and cons of different strategies, taking into account all aspects of each client’s individual needs and concerns. Call us today for a free, confidential attorney consultation. We can be reached at 702-388-4476 or send us a request through our site.

The Role of Personal History in Injury Cases

The backgrounds of the people involved in personal injury litigation can sometimes play a significant role in the case’s outcome. To guard against undue prejudice, courts typically won’t allow evidence or testimony about a party’s background unless it has some relevance to the case. But attorneys can find ways to make seemingly unrelated matters suddenly relevant again. For example, a decade-old conviction for fraud may not be relevant to whether a driver was responsible for a car accident, but it might be important for attacking the driver’s honesty if that is at issue. Here are a few examples of how personal history can play a role in a case.

  • Limiting the scope of potential damages. A longstanding principle in civil litigation is that the defendant “takes the plaintiff as-is.” This so-called “eggshell skull rule” generally means that the defendant is responsible for compensating the plaintiff for the full scope of the injuries for which the defendant is responsible, even if the nature of the injuries are significantly worse as a consequence of an existing infirmity in the plaintiff. At the same time, defendants are not responsible for compensating plaintiffs for injuries that already existed at the time of the accident. If the plaintiff was already dealing with a serious injury, the defendant likely will not be held responsible for the costs associated with that injury.
  • Supporting or undermining arguments. A party’s personal history can raise doubts about the merits of arguments that are not adequately supported by concrete evidence. It can also help to fill in gaps in evidence to strengthen an argument. For example, a driver who left a bar and got into an accident might argue that she “hardly drinks and never drives drunk.” The plaintiff might use the plaintiff’s history of DUI convictions, reputation for alcohol abuse, or confirmed habit of drinking and driving to show that the defendant isn’t telling the truth.
  • Creating or losing sympathy. Events in a person’s past can have effects on a case that are hard to quantify. Courts are often reluctant to allow evidence that serves little purpose other than to turn a jury’s opinion about a person, but as in the example of the fraud conviction, such evidence can be relevant for important reasons and have consequences beyond the narrow purpose for which it was introduced.

For more than 45 years the law firm of Greenman Goldberg Raby Martinez has represented clients in personal injury cases. Our team understands how to help clients get the most out of the facts of their case, and how to address potential problems that may be lurking in a client’s past. For a free attorney consultation about your case call us today at 702-388-4476 or send us a request through our site.

Asking Employers for Evidence of a Workplace Injury

Nevada law provides that workers’ compensation insurance covers injuries and diseases that arise out of and in the course of employment. The worker making a claim bears responsibility for proving that the injury was work-related. In some cases this burden is relatively easy to meet, but in others it can present challenges. Quite often the employer has important evidence that the worker will need to establish and defend a claim.

One source of challenge for injured workers is the financial incentives of employers and insurers to deny claims or limit their scope. Their efforts to do this get much easier if the worker does not have adequate evidence that the injury or disease arose out of and in the course of employment. If an injury’s relationship to the job is clear from the basic facts, the evidence involved may be relatively straightforward. For example, a warehouse employee who is on the clock and injured when a palette falls off a forklift may face few questions about the work-relatedness of the injury.

But other circumstances have given injured workers more difficulty. Here are a few examples:

  • Workers who are injured during breaks.
  • Injuries suffered while traveling, especially if the travel involves an element of personal time.
  • Diseases that are slow to develop, like cancer or hearing loss.

Cases that involve “unconventional” facts require an especially careful approach to evidence. The employer can be a critically important source of vital details that support a claim. A workers’ compensation attorney helps clients get all the relevant information from employers, preferably as soon as possible following the injury to ensure that facts are still fresh. If the employer isn’t forthcoming with details, an attorney can help the client take more aggressive steps to force the issue. And if the employer has deliberately hidden or destroyed vital evidence, the attorney can ensure that such bad faith efforts do not succeed.

Each case involves unique evidence requirements. Here are a few examples of the kind of evidence an employer may have that the worker will need:

  • Evidence of the cause of the injury, to show that the injury happened at work. (Note that because workers’ compensation is a no-fault system, evidence of responsibility for the injury is not relevant.)
  • Testimony from other employees or managers attesting to the facts of the injury.
  • Documentation related to the injury, especially in cases involving diseases where the employer has conducted some analysis that may serve to show the underlying cause.

For over 45 years the law firm of Greenman Goldberg Raby Martinez has helped clients in Las Vegas pursue their workers’ compensation claims. We can help you work with your employer to get the facts you need to ensure that your claim is accepted. Call us today for a free attorney consultation. We can be reached at 702-388-4476 or send us a request through our site.

Seeking Workers’ Compensation Coverage from Former Employers

Someone who has suffered a work-related injury or disease ideally gets covered by an existing employer’s insurance. But injuries and diseases are not always immediately obvious, even if their cause is clearly work-related. Sometimes the need for insurance coverage only comes up after leaving the job where the problem arose. In such cases, the individual’s current employer (assuming the individual is still working) may not be responsible for providing workers’ compensation coverage for the problem.

Instead, the injured person may need to seek compensation under a former employer’s insurance. Such cases involve a number of challenges that are best addressed with the help of a workers’ compensation attorney. Here are a few examples of the kinds of challenges the injured worker can expect to face:

  • The problem of proof. Someone who discovers an injury or disease after leaving a job will need to prove that it was related to a specific job and not some other cause. Insurers are likely to deny claims for injuries that are not clearly tied to a work-related incident. Proof can be especially challenging in cases of slowly developing disease, like cancer. Even if the sick person was exposed to a carcinogen at work, the insurer likely will argue that the cancer could have been caused by something else and therefore isn’t covered.
  • Lack of cooperation from the former employer. Related to the issue of proof is the former employer’s potential lack of interest in the case, or worse the employer’s unavailability due to no longer being in business. Quite often the details of a work-related injury need to come from the employer itself. If the employer no longer is in business, or key witnesses are no longer working there, gathering all the necessary background information may be more difficult.
  • Technical errors. The workers’ compensation system is highly regimented with tight deadlines and specific procedures that must be followed to receive benefits. Insurers seize on technical violations to deny claims. Seeking coverage for an illness or injury after deadlines have passed may give an insurer the excuse they need to deny the claim. Although a technical fault may not mean the end of the claims process, it may mean starting a dispute with the insurer.

Given the added complexity of submitting workers’ compensation claims against former employees, people who find themselves in this situation should seek professional assistance with the process. For more than 40 years the law firm of Greenman Goldberg Raby Martinez has helped people in the Las Vegas area resolve their workers’ compensation claims disputes. For a free attorney consultation about your case, please give us a call today at 702-388-4476. We can also be reached through our contacts page.

Proving Lost Earnings in a Personal Injury Case

Serious injuries often force people to take time off work to recover. As a consequence, seeking compensation for lost income can be an important part of a personal injury lawsuit. Lost earnings come up in the damages phase of litigation, after the defendant’s liability for the injury is already established. Like other forms of damages, proving lost earnings can be harder than one might first assume.

The simplest lost earnings scenario involves the individual who needs to take a certain, clearly defined amount of time off work and wants to be compensated for the wages that he or she didn’t earn during that time. This situation applies most clearly where the personal injury lawsuit is ongoing after the injured person has returned to work. Pay stubs from periods before and after the accident, tax forms from prior years (such as an IRS Form W-2 for people who work for an employer), or other forms of wage verification from an employer can be sufficient evidence to establish the amount of the lost wages. Someone who is self-employed can use tax records, checks from clients, or bank statements to establish the income that has been lost.

Proving lost earnings gets more complicated if the person who was injured is no longer able to earn as much as before the injury, or has lost the ability to work altogether. In these cases the question is not just how much the injured person lost in the past, but also how large the person’s potential earnings were at the time of the injury. There are numerous ways to calculate future lost earnings, and some cases (like workers’ compensation) have predetermined methods. The analysis might consider one or more of the following:

  • The individual’s earnings history.
  • The medical prognosis of the injury, including how much recovery is possible (reduced to a percentage which gets applied to the wage figures).
  • The scope of employment options available to the individual in light of the injury and the individual’s skills.
  • Estimates of earnings growth, including the potential for reasonably foreseeable promotions, cost-of-living adjustments, and other factors.
  • Lost benefits, like employer 401(k) contributions, lost pensions, and insurance coverage, including estimates of how the value of those benefits may have increased over time.

Some plaintiffs will have an especially complicated questions of proof to overcome. Self-employed individuals who are early in their careers, people who have wildly fluctuating earning histories, and individuals for whom future earnings are highly contingent (such as artists and entrepreneurs) will need tailored strategies to ensure that they receive their just compensation.

An experienced personal injury law firm knows how to get the most for its clients. For over 45 years the law firm of Greenman Goldberg Raby Martinez has helped personal injury clients recover compensation for lost earnings and other damages related to injuries. If you would like to speak to an attorney about your case, please call us today for a free, confidential consultation at 702-388-4476 or ask us to reach out to you through our contact page.