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SAN DIEGO JURY AWARDS CLIENT $145,000 IN MCDONALD'S COFFEE SPILL

November 8th, 2019

On October 23, 2019, a San Diego Jury awarded my client $145,000 for injuries she suffered when a McDonald's employee failed to securely fasten the lid on a cup of coffee at the drive through window.

This is one of the more enjoyable trials that I've had so far because McDonald's was refusing to accept any responsibility for their conduct and was blaming my client. The truth is, they thought because of all of the propaganda that they had created surrounding the infamous McDonald's hot coffee spill case back in the 90's, that they were going to be able to play into people's bias. As we know now, that did not work. Here's my interpretation of why it did not work.

Our jury system is the BEST system that we have in the world. No other countries system of justice comes even close to the jury system we have developed. The jury collectively has a lot of power when making a decision on behalf of other members of our community, and when our jury members come together and serve on a jury they are there to do what is RIGHT and JUST.

On October 23, 2019, they did exactly that. The essence of each verdict comes from our fundamental need to feel connected to something bigger and to help one another. As human beings, we all want to feel connected with one another and help each other. When someone has done something wrong, as McDonald's had done in this case, when the truth is revealed, our jury members ALWAYS do the right thing.

The unfortunate thing is, wrongdoers, many times don't want to accept responsibility. And that is why, I do what I do. When someone has committed a wrong, they should accept FULL responsibility for their conduct, or they should face a jury of their peers and explain themselves. Reality is, most the times, it's not the wrongdoer that is refusing to accept responsibility, it is the insurance company and their attorneys who are trying to protect their MONEY coffins.

Justice was served on October 23, 2019 and I am happy to have been part of it.

Thank you for reading my blog.

HOW TO USE LAY WITNESSES TO MAXIMIZE YOUR RECOVERY AT TRIAL

September 25th, 2018

By S.J. Walker

Sell your damages to the jury, and sell them well. It is easy enough to grab different witnesses who have some relation to the case and ask them to testify. However, if not done properly this will likely become a one-way ticket to an objection based on cumulative evidence. Many times, it is easiest to put the plaintiff on the stand because the plaintiff is the person who is best qualified to testify about their damages or their loss of enjoyment in their life. This easily can lead to a pitfall, a Catch-22 if you will. If the plaintiff testifies truthfully of their injuries, they are likely to come off as whiners to the jury. It is not likely that a jury takes well to whiners. Secondly, jury’s likely expect plaintiff’s to exaggerate their suffering. Thus putting your plaintiff on the stand may not be your best choice, right away.

Avoiding the “Whiner” Dilemma:

There is no doubt that the injured person has the most information on their pain and suffering. In most cases, it would be a great idea to put them on the stand, but maybe not right away. Instead, ask the injured party about people they may know who could testify to their damages. Make a list of these witness including names, phone numbers, emails, and possibly what they will testify. Then contact the potential witness.

An article by John F. Denove provides some questions to ask yourself when you are contacting a potential witness:

“1.) Do I believe this witness?”

If you do not believe the witness, it is almost a sure thing that the jury will not believe the witness either. If they aren’t credible, get rid of them.

“2.) How often did the witness interact with the plaintiff before the injury?"

"3.) How often has the witness interacted with the plaintiff after the injury?”

These two questions go hand in hand. This is establishing a foundation for the evidence. If the witness can testify to the plaintiff enjoying life to the fullest, then it will become a compare and contrast situation; people who knew the plaintiff before the accident vs. people who knew the plaintiff after the accident. These two different witnesses (or possibly the same witness) will likely tell a shockingly different before and after story that will stick with the jury.

“4.) Does the witness have personal knowledge of the substance to support the testimony? “

Under the Federal Rules of Evidence 602 and 603, personal knowledge and an oath or affirmation to tell the truth determine the competency of a witness. If the witness fails to have personal knowledge or fails to affirm or take an oath to tell the truth, they will be deemed incompetent to testify. If your jurisdiction does not follow the Federal Rules of Evidence, it is likely that the same if not similar rules that apply. Make sure the witness has personal knowledge of the substance to support the testimony.

“5.) Does the witness have any “story” to tell about the plaintiff, either before or after the injury?”

Stories help jurors remember things. The more detail in a story, the more enthralled a juror will be; an enthralled juror will remember facts and details of the story. The side that tells the best story wins the case.

“6.) On Cross-Examination, will the witness be easily led or confused?”

If a witness is going to be easily led or confused, their credibility will be shot with the jury. This makes the testimony a waste of your time, their time, and the courts time. You can minimize this result by prepping the witness thoroughly before calling them to the stand.

“7.) Does the witness come across as an advocate?”

You want the witness on your client’s side. You want them fighting for your client. If they seem to dislike your client, a jury will know. They may wonder why that witness dislikes your client. What did your client do?

John F. Denvoe, The Advocate Magazine 85, (January 2017).

After you have found these witnesses, and they have passed the questions above to your satisfaction, call them to the stand before the plaintiff. If the jury hears testimony from a number of witnesses before the plaintiff, they are likely to view them as less of a whiner, and feel more sympathetic to their story. Have the plaintiff go last or close to last.

Avoiding an Objection Based on Cumulative Testimony:

Expect the defense will object that the testimony is cumulative if you plan on using multiple lay witnesses to testify on the issues of general damages. Be ready to provide a concise statement as to how the testimony will not be duplicative.

It is an easy enough explanation. CACI 3905A provides: “[Past] [and] [future] [physical pain / mental suffering / loss of enjoyment of life / disfigurement / physical impairment / inconvenience / grief / anxiety / humiliation / emotional distress / [insert other damages].” Use this as your guide. For example, advise the judge that witness 1 will testify about plaintiff’s physical impairment; witness 2 will testify about plaintiffs loss of enjoyment of life; Witness 3 will testify to plaintiff’s physical pain; witness 4 will testify about plaintiff’s family life; and another will testify about plaintiff’s social life. Although a judge will likely delay a pre-trial motion based on evidence being cumulative, they will caution you. As a San Diego, California personal injury attorney or elsewhere, put your best lay witnesses on first, rather than at the end when the judge may rule the testimony cumulative.

Avoiding an Objection Based on Cumulative Demonstrative Evidence:

Another useful way to sell your general damages to a jury is through the use of exhibits. There are a variety of demonstrative exhibits that can be used to show damages. Photos, videos, letters, anniversary cards, time-lines, animations, medical illustrations and medical records assist a jury in determining the extent or value of a plaintiff’s general damages. However, again, it is likely that the defense will object based on the cumulative evidence.

When you use photographs, some photographs of the plaintiff’s injuries will be useful to show, especially if the photo is helpful in forming an expert’s opinion about the nature and extent of the plaintiff’s injuries. Also, pre-injury photographs effectively compare life of the plaintiff before and after the accident. A defendant will object that the photographs are cumulative, but a quick response to this objection is that it would take the witness much longer to describe the testimony in detail than to make a brief statement describing a photograph. This is a policy argument that saves the courts time and money. Another tactic is similar to having different witnesses talk about different subjects as discussed above. With pictures, have 3 different witnesses discuss 3 pictures rather than one witness discussing 9 pictures.

For example, have one witness discuss the plaintiff’s love of skiing and only use skiing photographs with that witness. Use another witness to speak about the plaintiff’s activities with their family by showing photographs of these activities. Use another witness to speak about the plaintiff’s hobby of building furniture and only use photographs authenticating the furniture the plaintiff has built.

Pictures are powerful. Find them at the beginning of the case.

Get More from Medical Records

As a personal injury attorney in San Diego, California, or a small town in Pennsylvania, medical records become an essential tool to proving your damages to the jury. Many attorneys read only the physical records and only the records that are typed. Why? Well, attorneys are busy people and finding the gems that lie in the minute takes time.

Look for nursing notes and therapy notes that contain comments about how the plaintiff felt or what the plaintiff’s concerns were about the future. Look for pain drawings that the plaintiff filled out, such as a circle where the plaintiff’s pain was located. A referral from a physician for an MRI or EMG will likely contain a reason for the exam; “chronic back pain,” “burning in the back of the neck.” Bringing these notes to the attention of a jury is more effective than having your client verbally describe the pain when the records were prepared years earlier.

General damages require evidence. What evidence you decide to use is determined by the evidence you have obtained. Find as much evidence as possible because selling your damages to the jury will become much easier when you can choose only the best evidence to prove your point.

For more examples on Exhibits and Testimony see: John F. Denvoe, The Advocate Magazine 85, (January 2017).

PEBLEY V. SANTA CLARA ORGANICS

May 9th, 2018

The California Court of Appeal held today that a Plaintiff is allowed to treat with doctors on liens, even if he/she was insured at the time of the accident.

This is an extremely important ruling for plaintiffs because it allows them to recover the full amount of money that they owe to their doctors when they treat on liens and solidifies their due process right to choose their own medical treatment.

The court of appeal reasoned that there could be many reasons why a plaintiff may choose to treat on a lien basis (this is when doctors choose to treat a plaintiff without getting paid, and would subsequently get paid after the plaintiffs case is over), for example because "plaintiffs generally make their health insurance choices before they are injured. These choices may be based on the plaintiffs' willingness to bear the risk posed by a health maintenance organization (HMO) rationing system because the plaintiff is healthy and requires little care. This decision may appear much different after a serious accident, when the plaintiff suddenly needs complex, extensive care that an HMO is not structured to provide." The court when on to say: "The plaintiff also may wish to choose a physician or surgeon who specializes in treating the specific type of injury involved, but who does not accept the plaintiff's insurance or any other type of insurance. In addition, health care providers that bill through insurance, rather than on a lien basis, may be less willing to participate in the litigation process."

This is a major victory for personal injury victims because it will allow them to introduce all of their medical bills at the time of trial so they could get compensated for them, without the fear that the court may grant a defendants motion to exclude the "unpaid" bills.

If you have been severely injured by someone else's wrong doing contact us for your free case evaluation. We will take any case to trial if that is what is required to fully compensate you for your injuries.

AM I GETTING THE FULL VALUE OF WHAT MY INJURY CLAIM IS WORTH?

January 23rd, 2018

If you have been involved in a car accident, bicycle accident, truck accident or have been injured as a result of someone else's careless behavior, the law allows you to be compensated for all of your past and future medical care, all of your past and future loss of earning and for pain and suffering.

In my practice I see it everyday where the insurance companies do not want to pay for the entire loss that my clients have suffered.

To answer the question of whether or not you are receiving the full value of your injury claim we need to look at several factors. First, the insurance company for the party who caused your loss is responsible to pay all of your past medical expenses. These past medical expenses are not and should not be limited only to what your copay is, but the actual amount that your insurance company paid for your visit. For example, if you went to the doctor and your copay was $15 dollars, and your doctor billed the insurance and received another $150, you would be entitled to the full $165 dollars. The reason for this is that, even though you do have insurance, when a third party causes your loss they are going to be responsible for all of the payments, not just your out of pocket costs. Often times, I have heard when insurance companies try to contact our clients immediately after the collision to try and get them early on and settle their claim for pennies on the dollar.

So, for starters you want to make sure they are paying for everything that you have incurred. The same goes for your lost wages.

In addition, to your past medical bills, the responsible party would also be responsible for all future medical costs that are reasonably certain to be needed and that are also related to the accident. For example, if your orthopedic doctor is recommending that you may need to get surgery on a herniated disk that you developed as a result of the accident that you were involved in, the insurance company is responsible to pay for all of that as well.

Almost all insurance companies do not want to pay for future medical care, and most of them even will dispute the medical treatment and care that you have received so far.

You should never attempt to negotiate with insurance companies on your own. They are ruthless and all they care about is money.

If you have been injured contact us for your free case evaluation. I will personally vouch that we will get you the full value for your injury claim, even if it means taking them to trial.

Omid Rejali

HOW CAN I MAXIMIZE MY PERSONAL INJURY AWARD?

January 16th, 2018

We are always asked how can I maximize my personal injury award?

If you have been injured, generally you are dealing with an insurance adjuster. The unfortunate truth is that insurance adjusters do not look at us as humans. For them, we are all just a number, and they have a system by which they input all of the data including medical treatment, and loss wages and it assigns a value to the case.

Below are several factors that you could use to maximize your injury award:

  • Do not allow gaps in your treatment

    . This is because any gap in treatment is read as no pain and therefore no treatment. Of course, what is not considered are other reasons why the person may not have been seeking treatment such as: work schedule, the doctor not having an appointment, or simply not liking to go to the doctor and putting it off until it really becomes a necessity. Seriously how many of us love to going to the doctor?!

  • Make sure to describe all of your symptoms accurately to your doctor. 

  • Make sure that your doctor accurately reflects all of your symptoms in his notes. 

  • Discuss all of your options with your doctor (i.e. pain management; physical therapy; surgery).

  • Do not exaggerate any of your symptoms.

  • Do ask your doctor for a specialist if you are not getting better. 

  • Document the way you feel each and every day. 

    This will allow you and your attorney to determine how the injury has affected your life. There is a category of damages that are called non-economic damages, which we like to call "human damages."  These damages could include feelings of: pain, sadness, anxiety, embarrassment, shame, fear, and anger.

     

     

  • Make sure you report everything to your attorney so he/she is up to date on all of your medical treatment. 

  • Always tell the truth. 

    This cannot be stressed enough. 

  • If there is any bruising or scarring make sure you take a picture of it

    . There is nothing more convincing than photographs.

  • Do not under any circumstance give a statement to the insurance adjusters. 

    This is almost the same as not speaking to the police because everything you tell them is going to be used against you.  

  • If you have had a previous injury related to your current injury make sure you describe that to your doctor. 

    Insurance companies love to use this one against you, but under the law if the injury has gotten worse

The injuring party would still be responsible for the entire injury. Its just like when your windshield was cracked but you were still driving your car for 5 years with no problems and now it becomes completely shattered. Who should pay for it? The person who made it worse. 

Insurance adjusters forget that we are humans that have been injured through no fault of our own. Following these steps could help in maximizing your personal injury award. Insurance companies and their agents are in the business of making money by hedging risks. For this reason, the less money they pay, the more money they make. Unfortunately, they do not look at us like humans. At Rejali Law Firm we pride ourselves in taking only a few cases at a time, this approach allows us to know each of our clients on an individual human level, so we can effectivley demonstrate whether to an insurance adjuster, a mediator, or a jury how our clients life has been affected by the injuries they have sustained.

As Gerry Spence, America's best trial lawyer says: "This world will be a better place when the power of love overcomes the love of power." We strive to bring the power of love to each of our clients and to the courtroom each and every time.

    Rejali Law Firm

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