Lies and deception are a reckless approach to getting out of liability for an accident, but that doesn’t stop some defendants from telling falsehoods. This can be especially problematic when the plaintiff and defendant are the only witnesses to the accident: there are no passengers, other drivers, or other bystanders who can shed light on the events leading up to the crash. When a defendant lies, the injured plaintiff can explore several options to establish the truth. The first is to obtain third party data. Auto accidents tend to generate a ton of information. Most contemporary cars have “brains” that can be accessed to gather data about virtually every system in the car. In an accident involving serious injury, police investigators may generate reports. In some cases it can make sense to investigate the defendant’s activities in the time leading up to the crash. Such information could come from deposing the defendant, or might be obtained from things like the defendant’s cell phone data. Another important approach is to examine the defendant’s own words. Lying consistently is very difficult to do. Many people who lie leave a trail of contradictory statements that can be used to refute their falsehoods. This is especially true of a defendant who has discussed the accident on social media or in other electronic forms, like email, which can be entered into evidence. The defendant may have made contradictory statements to others that could be brought in as evidence as well. A defendant who is “caught” in a lie in the course of litigation can face a number of consequences. If the defendant was testifying under oath, whether in a courtroom setting or in a deposition, the lie may be grounds for a criminal charge of perjury, a felony under Nevada law with penalties including up to four years in prison and a fine. In some cases the defendant’s attorneys may also be taken to task by the court for not taking steps to address their client’s deception. A good civil defense attorney wouldn’t allow his or her client to lie in court not just because of the serious criminal penalties that could result, but because it risks undermining the defendant’s case. For the personal injury plaintiff, proving that the defendant lied also calls into question the defendant’s other statements to the court. It puts the plaintiff in a significantly stronger position, because the credibility of the defendant as a witness has been seriously damaged. The attorneys at Greenman Goldberg Raby Martinez have represented clients in the Las Vegas area in personal injury cases for over four decades. We work closely with each client to find the best path to a successful outcome. For a free attorney consultation about your case call us today at 702-388-4476 or send us a request on our contact page.
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In rare circumstances a personal injury case may go all the way to trial, with a judge or jury making critical decisions about the liability of the defendant and determining how much the defendant should pay in compensation to the plaintiff. Cases fail to settle before trial for a variety of reasons, a common one being unreconcilable differences about key facts or interpretations of law that lead the two sides to very different ideas about how much the plaintiff’s claims are worth. After a trial is over and a jury reaches a decision, there are times when a plaintiff may want to file an appeal.
What an appeal can and can’t doThe party that files the appeal—the appellant—may be the defendant or the plaintiff. Nevada’s Rules of Appellate Procedure govern when and how appeals may be pursued. In an appeal the appellant asks the higher court to change part or all of the lower court’s decision, potentially throwing out the decision of the trial court and in some cases even ordering that the case be retried. Trial courts generally examine the decisions of lower courts for legal errors that could have influenced the outcome of the case. A key feature of appeals is that they are not retrials of the entire case. The appeals court will examine the evidence presented at the trial court, but will not allow either party to introduce new evidence. In other words, the case will be decided based on the facts that were established at trial. If a problem was allowed to remain on the record at the trial level, the appeals court may not have leeway to consider alternative evidence.
When is an appeal the right step?The decision to appeal can be a complex and difficult one, in part because appeals must be made within a fairly short time following the final decision of the trial court. Appeals may require the expertise of a new attorney, one who is familiar with appellate practice. And of course, appeals can cost more money. There are cases where a plaintiff may wish to file an appeal anyway, because the stakes are high enough that pursuing a case to its fullest is worth the risks. Here are some scenarios where the plaintiff may want to appeal:
- Improper instructions were given to a jury, which reached a key decision in reliance upon them.
- The trial judge made errors in allowing or disallowing critical evidence.
- There is evidence that the jury or judge was unlawfully biased against the plaintiff.
Work with an experienced Nevada personal injury attorneyIdeally a personal injury case won’t need to go as far as an appeal. If it happens it’s important that every part of the case leading up to the appeal has been handled competently. That’s another good reason for working with a law firm with deep experience handling personal injury cases. The attorneys at Greenman Goldberg Raby Martinez have represented Nevada clients in personal injury cases for over 45 years. For a free attorney consultation about your case, call us at 702-388-4476 or through our website.
Someone who is searching for an attorney to represent them in a personal injury case may be surprised when, after an initial consultation, the attorney turns down the case. Despite the reputation of personal injury attorneys as people willing to take any case, the reality is that most attorneys have a process for evaluating cases. The evaluation process needs to take into account the interests of the law firm, but more importantly it needs to account for the interests of the client. Sometimes the client is better off working with a different firm. There’s no hiding that law firms are businesses, and attorneys naturally do their work in part because they need to earn a living. Naturally there are firms that only accept cases that are worth a certain amount to the firm. But money matters rarely are the sole reason why a law firm turns away a potential client. Other reasons include these:
- Lack of merit. From time to time a potential client will come to a law firm with questions about a circumstance that, after a closer look, turns out to not meet minimum standards for filing a lawsuit. A client in this circumstance often has a real grievance, but for one or more technical reasons the lawsuit isn’t going to work. A firm’s ethical obligation is to tell the client why the case probably won’t succeed. In extreme cases, attorneys can be disciplined or disbarred for filing frivolous lawsuits.
- Conflicts of interest. From time to time a client will come to a firm with a case that turns out to raise conflicts with other clients of the firm. For example, if a firm represents a moving company on unrelated matters and is approached by a person who was hit by a truck owned by the moving company, the firm will face a conflict of interest problem if it decides to take the injured person’s case. In some circumstances a firm may be able to take the case despite a conflict of interest, but in others it’s more appropriate for the firm to turn down the work.
- Lack of necessary expertise. A firm that doesn’t have the right skills to appropriately handle the client’s case should turn the case down. Oftentimes a firm can recommend another firm that might be able handle the case.
- Insufficient resources. A firm should not take a case that it can’t devote the necessary time and resources to. Some firms take every case with the expectation of following a cookie-cutter approach that might save the firm some money but ultimately doesn’t give the client the best possible representation. Other firms overload their attorneys, with a similar result. A firm should recognize when it is spread too thin to take on new work and caution potential clients that they may be better off finding representation elsewhere.
In the course of recovering from an injury one hopes that the process follows a fairly predictable, linear path. For some injuries, the initial diagnosis leads to a straightforward treatment plan that proceeds without setbacks until the patient is fully recovered. But for many patients, setbacks are a frustrating reality of the recovery process. When a significant change takes place during the course of a lawsuit it may be possible to update the damages claimed in the suit to account for those changes.
Amending complaints to account for fresh informationA lawsuit is started by filing a complaint with the appropriate court. In a complaint, the plaintiff describes the basic facts of the case and makes claims against the defendant for damages. At the preliminary stage, damages can be based on a rough estimate of all the monetary and nonmonetary costs associated with the injury: past and anticipated medical bills, lost wages, pain, and so on. For a period of time while a case is pending, claims for damages can be updated as the plaintiff uncovers details that change the scope of appropriate damages. For a case that gets resolved through settlement negotiations, a plaintiff can use the claims in a complaint as leverage to improve the negotiated outcome. The key is that a defendant is not obligated to pay, and won’t agree to pay, costs that the plaintiff hasn’t proved with sufficient reliability to make it clear that the defendant will be held liable for it if the case were to go all the way to trial.
Proving new damagesTo get compensation for any kind of damages a plaintiff must be able to prove their value and that they were caused by the defendant’s wrongful action. Causation can create interesting challenges for plaintiffs who find that their injuries are getting worse over time. The defendant may argue that an intervening cause, such as the plaintiff’s own lack of care with regard to the injury or mistakes by the plaintiff’s doctor, has made the injury worse and therefore the defendant should not be held responsible for the worsened condition. The issue of causation often requires support from the plaintiff’s treating physician. A doctor can testify about the nature of the plaintiff’s injuries and how their prognosis has changed over time. For complex cases, expert witnesses may be needed to help the court understand how an injury could grow worse over time while still being traceable to the defendant’s negligence. The potential for changes is one of many good reasons for working with an experienced personal injury attorney. The attorneys at Greenman Goldberg Raby Martinez have represented Nevada clients in personal injury cases for over 45 years. Call today for a free attorney consultation at 702-388-4476 or request a call through our website.
Most personal injury lawsuits end with an out-of-court settlement. Settlements are often preferred by both sides, because they’re cheaper and faster than a full trial, among other things. When a case does go to trial it’s often because the stakes are high and the parties in the dispute are far apart on important legal or factual questions that frustrate their efforts to negotiate a settlement deal. In cases that go in front of a jury, the choice of jurors can have a significant impact on the outcome of a case.
The role of the jury in personal injury casesThe legal profession refers to judges and juries as the triers of fact. Their job is to evaluate the evidence each side in the case presents to reach decisions about the merits of arguments and the questions raised during the course of the trial. Well-established legal rules govern the job of the trier of fact, whether judge or jury. Many of the rules of trials, including evidentiary standards, are designed to protect and enhance the fairness and reliability of the fact-finding process. In a jury trial the judge can be thought of as part referee, part gatekeeper, and part assistant to the jury. The jury does the real work of determining whether the plaintiff has done enough to establish that the defendant is legally responsible for the plaintiff’s injuries, and how much the defendant should be required to pay to make the plaintiff whole. Given their importance, choosing jurors is often a delicate and involved process that attorneys for both sides in the case will take very seriously.
What is jury selection?In a civil trial the jury selection process can be fraught with challenges. As anyone who has been summoned to jury duty can attest, no one wants to be on the hook for sitting through a long and complicated trial. Potential jurors look for any excuse they can to get out of service. For courts and litigants alike, this presents a tough preliminary challenge: finding enough people to serve. It’s not enough to fill the jury with “live bodies.” The people on the jury also need to be appropriate for the case. Many individuals need to be disqualified for reasons beyond practical problems that would prevent them from serving. Relevant personal biases, potentially distorting backgrounds, or concerns about competence can all play a role in disqualifying jurors in a case. For litigants the jury selection process can be about finding jurors who may be predisposed to look favorably on their case. Finding the “right” juror is a highly sophisticated process that takes into account a wide variety of factors, from a person’s demographics to their responses to specific questions. In every case a judge will oversee the selection process to prevent abuses and distortions that aggressive attorneys might try to introduce at the selection stage.
GGRM is an experienced Nevada personal injury law firmWhen it comes to selecting jurors, experience makes all the difference. The attorneys at Greenman Goldberg Raby Martinez have represented injured clients in the Las Vegas area for over 45 years. For a free attorney consultation about your case call us today at 702-388-4476 or send us a request on our contact page.
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 a variety of reasons, few personal injury cases ever go to trial in front of a judge and jury. Instead, the parties in the dispute resolve their differences by negotiation. When the litigants settle their dispute, they avoid the big investment of time and financial resources that is required for a full trial. The time element is often crucial: injured plaintiffs need compensation from defendants to pay bills, and defendants often want to end the dispute to avoid piling up legal fees.
Settlement negotiations usually take place after lawsuits are filedSettlement agreements arise from litigation, which means that the injured plaintiff typically has already filed a civil lawsuit against the defendant. By filing a lawsuit the plaintiff ensures that if the defendant refuses to come to terms, the option of going to trial always exists. Sometimes a lawsuit needs to be filed to ensure that the relevant statute of limitations doesn’t expire while negotiations are ongoing. Other times a lawsuit is necessary just to bring the defendant to the negotiating table. One consequence of having litigation underway is that the court plays an important role as a kind of referee during the process. Courts strongly encourage cases to settle because it saves court resources for other, potentially more serious cases. But until a case settles the procedures of the court must be followed. Parties can still ask the court to require the other side to do certain things, such as disclose evidence.
The settlement agreement needs to protect the plaintiff’s interestsNegotiating a fair settlement is as much an art as a science. Settlements need to take into account many different components, including:
- The facts of the events that caused the injury.
- The expenses the plaintiff is facing as a consequence of the injury.
- The defendant’s resources (insurance, cash and other liquid assets, anticipated income, and so on).
- The total amount of compensation the defendant agrees to pay, often itemized.
- A payment schedule (especially common if the defendant will pay from his or her personal resources).
- A release of the defendant from liabilities that aren’t otherwise covered.
In civil litigation expert witnesses can be an essential source of information for litigants, judges, and juries. The role of an expert witness is to “assist the trier of fact to understand the evidence or determine a fact in issue.” Common examples that come up in personal injury cases include testimony from an engineer about the design of a defective product, from a physician about a complex medical condition, or from an accountant about complicated damages questions. To qualify as an expert a person must have specialized training and expertise, and as such they typically charge a high price for their services. Just how much an expert witness may “cost” will depend on the individual expert and how much work they must do in support of the litigation. The Expert Institute (a witness clearing house) offers a “calculator” tool that presents national averages and, sometimes, state-specific information about how much experts in different fields typically demand. Their approach divides fees into three components: the initial review fee, the deposition fee, and the court fee. This can be a helpful way to examine how costs work:
- Initial reviews. For an expert witness’s testimony to hold up under adversarial scrutiny it needs to be based on a rigorous analysis using well-established, objective standards. The initial review phase of an expert witness engagement typically involves providing the witness with information about the case and answering questions to help them assess the facts. At this phase a witness may reach a conclusion that isn’t helpful to the case—after all, the expert is there to provide a neutral opinion, even though a party to the litigation is paying for his or her services with a particular goal in mind. The complexity of an initial review can be very high in cases where the expert needs to conduct research or physical exams.
- Depositions. Expert witnesses don’t necessarily need to testify in person in a courtroom. A deposition is essentially a formal pretrial questions-and-answers session where the witness responds to questions (interrogatories) by attorneys for both sides in the litigation. Preparing for a deposition can require the witness to prepare exhibits, compile references, and so forth. Depositions can be as short as a couple hours to as long as several days, depending on the complexity of the case and the topics at issue.
- Court fee. Few personal injury cases actually go to trial, so it’s unlikely that an expert witness will need to personally appear in court. Still, when they do experts are entitled to charge a higher than normal fee.
Depositions are often a critically important part of discovery, the fact-gathering phase of litigation. In a deposition, attorneys representing the parties in the dispute ask a witness a series of questions that are intended to help the attorneys gather information that may be important to the case. Witnesses answer questions under oath, meaning they face possible legal consequences for lying or misleading their questioners. A court reporter keeps a transcript of the deposition, which may also be videotaped in some situations. In some circumstances a witness may be assisted by an attorney, but as a rule a witness in a deposition is expected to prove accurate answers to all the questions that are asked. For someone who is directly involved in a legal dispute over a personal injury, a deposition may sound like a kind of interrogation. Television and film like to ratchet up the drama with scenes of aggressive attorneys badgering witnesses into emotional outbursts. In reality a deposition needn’t be a stressful event. Although a witness is expected to answer every question that is asked, the witness’s attorney can enter objections on the record and can even ask that the deposition be stopped if the witness is being unfairly attacked. Another important part of an attorney’s job is to prepare clients for depositions. There are a number of things that a witness can do to prepare for a deposition:
- Get clear about the important facts. To be clear, a witness’s preparation for a deposition is not about crafting a good story. It’s about making sure that the witness has a clear memory of the things that are likely to come up, so the answers given at the deposition are as accurate as possible. This includes knowing what one doesn’t know, and what one is unsure about.
- Practice answering questions. It can be helpful to have a friendly attorney roleplay the deposition. Not only does this help the witness think about how to answer difficult questions, it also makes the deposition itself feel more familiar and less stressful.
- Think about body language and vocal inflection. An attorney who is experienced with depositions will be looking for clues not just in what the witness says, but also in how the witness behaves. There’s nothing to gain by being argumentative, rude, or angry during a deposition. The witness should think about steps that could help relieve tension, such as taking a breath, sipping water, or other simple tactics.
- Get clear about procedure. During a deposition, attorneys will banter about technicalities, raise objections, and make comments to the court reporter. It can be helpful to a witness to know how this back-and-forth may affect them. Simply put, most of it can be ignored. At a minimum, witnesses should be prepared to answer questions even if their attorney objects to it. It can also be helpful for a witness to know how to go about asking for a break.
The viability of a personal injury lawsuit can sometimes hinge on the testimony of witnesses. Witnesses can provide essential information about an injury and related matters, such as the extent of the plaintiff’s damages. Some witnesses are willing to provide testimony and information without being compelled to do so. But others may be reluctant. Perhaps the witness is a friend of the defendant’s and doesn’t want to testify to facts that will help the plaintiff. Or perhaps the witness is an employee of a company that is being sued and wants to protect a career. In many cases such witnesses can be required to testify through the use of subpoenas.
What is a subpoena?The subpoena power is a significant resource that only becomes available once a lawsuit has been filed. Its purpose is to give the parties to litigation a means to gather evidence related to the case even against the objection of individuals who have it. Subpoenas may demand testimony (a subpoena ad testificandum) or production of documents or other materials (a subpoena duces tecum). A court may charge someone with contempt if they fail to comply with a valid subpoena. Under Nevada law contempt is punishable by a fine of up to $500, imprisonment for up to 25 days, or both, as well as reimbursement of legal fees and other expenses of the party that originally sought the subpoena. The mechanics of subpoenas in Nevada state civil courts are governed by Rule 45 of the Nevada Rules of Civil Procedure. To be valid a subpoena must comply with all of the requirements of Rule 45 and other related rules. A subpoena must be served upon the party being compelled to appear. Service must be in person and, with a few exceptions, must be accompanied by compensation for the witness’s mileage and a day’s fees.
Can someone avoid a subpoena?There are a few ways someone can avoid responding to a subpoena. Many of the exceptions relate to the validity of the subpoena itself:
- Avoiding service of process. One reason people hire professionals to serve process is that some people take pains to avoid it, thereby frustrating efforts to make the subpoena valid and binding. Process servers use creative methods to deliver documents to people who try to hide from service.
- Undue burden. A respondent is not required to comply with a subpoena that creates an undue burden. This abstract concept is evaluated on a case-by-case basis, but might include things like interrupting necessary medical care. An attorney who issues and serves a subpoena that creates an undue burden or unreasonable expense upon the person being served can be subject to sanction by the court.
- Reasonable time. The subpoena must allow the respondent a reasonable time to appear.
- Reasonable place. A subpoena cannot order someone to travel more than 100 miles from the respondent’s home or business, unless it is to the place where the trial is held.
- Protected information. Subpoenas may be quashed or modified if they require someone to disclose trade secrets, confidential business information, or compels an opinion by an expert who has not been retained by a party as a paid witness.