Tuesday, July 20, 2010

Insight and a Silver Lining Discussed at Legal Round Table

Last night I participated in a legal round table discussion about bicycling and the law with criminal defense attorney, Ian S. Kaspar.  The prime focus of the informal meeting with concerned cyclists was to talk about the light sentences recently handed out to two men who intentionally struck cyclists with their car in Brookfield.  Though he did not represent either of the men accused, Ian did a wonderful job of explaining the in's and out's of the criminal justice system, especially with regard to sentencing.  It was satisfying to hear that the punishment handed out by Judge Kipperman was not as insignificant as it sounded at first.  In short, both men are now felons and that tag is something that will profoundly affect each of them for the rest of their lives.  Ian explained that perhaps the silver lining in all of this is the new relationship that has apparently been created between the State's Attorney's Office and the Active Transportation Alliance which initiated a letter writing campaign that has brought media attention to this case.  We may now hope that the prosecutor's office will let the ATA know in advance of sentencing in future cases, which in turn can communicate with the broader cycling community.  According to Ian, even a modest presence of concerned bicyclists at a sentencing hearing can make a difference when a judge is considering punishment for an attack on a cyclist.

Ian and I also discussed what to do if you find yourself the victim of an incident with a motor vehicle, whether it be an intentional criminal assault or an act of negligence.  Here are my thoughts on that subject, most of which was covered last night:

Gather - After gathering yourself, and your bike, it's time to gather as much information at the scene as possible. While you have your mobile phone out, click a few photos of whatever it was that caused your crash, e.g. the driver's vehicle and license plate, the road hazard, the broken bicycle component, etc. If there are people around you, ask if anyone saw the accident. If so, get their name and telephone number. If you were struck by a motor vehicle ask the driver for his or her name, address and telephone number. Ask to see a driver's license and insurance card.

Shortly after being involved in bicycle accident you may be contacted by a representative of an insurance company who will ask you to give a recorded statement. Questioning will focus on how the accident happened and the nature and extent of your injuries. This is most likely to occur where you have been hit by a motor vehicle. You may even be contacted, in person or via telephone, while you are still in the hospital. Do not give a statement until you have sought legal advice. Why? Because you need time to recover physically and collect your thoughts before making a statement to which you will be bound later. You may not at that point even fully appreciate the full extend of your injuries or the care and treatment that you will need. There is no good reason not to wait before giving a statement. The driver's insurance company may even make a quick offer to settle your claim and ask that you, in return, sign a document releasing its insured from further liability. Do not do it without seeking legal advice. Again, there is no good reason not to wait until after you can fully appreciate what happened and what the repercussions are or will be. The driver's insurer will want to take it fast to resolve the claim quickly for as little as possible. You take it slow.

Talk to a lawyer - Speak with an attorney even if you believe your injuries are minor. It should be noted that following a cycling accident you may not be best served by seeking legal advice from Uncle Bernie who handles bankruptcy cases. Seek advice from a personal injury lawyer, preferably one with experience handling bicycle accident cases. The initial consultation with an attorney should not cost anything. If the attorney decides to take your case, he or she will -- or should -- only receive a fee when and if the case resolves in your favor. This is called a contingency fee agreement. A lawyer is most likely to agree to represent you when your injuries are severe, with significant medical bills. Again though, call a lawyer even if your injuries seem minor. When I've received such calls I spend time offering guidance on how I think the victim should proceed, then recommend that he or she negotiate with the driver's insurer on their own. There may be no point in an attorney taking a piece of the pie in a claim that can be resolved quickly and easily for a relatively small sum of money.

Compensation - Many people ask me what kind of compensation they are entitled to following a bicycle accident. The money "damages" to which you will be entitled include reimbursement for:

  • Medical bills;
  • Lost wages;
  • Cost to have your bicycle repaired;
  • Pain and suffering (both past and future);
  • Loss of a normal life; and
  • Disfigurement.
If your injuries are permanent and profound, or you are killed, your family, i.e. your spouse and children, are entitled to compensation for:
  • Loss of financial support that you would have provided to them; and
  • Loss of consortium/society; that is their loss of the love, guidance and services you would have provided to them.
Ninety-nine times out of a hundred, monetary compensation is paid by the at fault person's, or entity's, insurer rather than out-of-pocket.

Litigation - Sometimes it is necessary to file a lawsuit in order to wrest fair compensation from the at fault person's or entity's insurance company. Generally, this occurs where the insurer believes that its insured is not at fault based on the facts, or where there is strong disagreement over the amount of compensation that the injured bicyclist should receive. It can also occur where the at fault person has "substandard insurance," coverage from a crumby insurance company that tends to litigate every case in order to delay payment for as long as possible. Depending upon the type of accident at issue, the attorney will take differing steps in his or her investigation. If the accident involved a motor vehicle, an accident reconstruction expert may be retained. If the crash was caused by a defect or hazard in the roadway, a different sort of expert may be consulted. In a product liability case, involving failure of a bicycle component, an engineer or metallurgist will probably need to be retained. Most bicycle accident cases, however, do not require retention of experts. A thorough and aggressive investigation of the facts by the law firm will suffice. In all cases, the cyclist's medical bills and records will be obtained from care providers. After the lawsuit is drafted, filed and served on the defendant(s), your attorney and the defendant's attorney will trade written questionnaires called interrogatories, request production of relevant documents, photos and other materials, and interview all those involved in the matter, including parties, witnesses, physicians and experts, in a deposition. After that, the matter will proceed to trial if a settlement agreement cannot be reached. The vast majority of cases filed settle without going to trial, but trials certainly do occur. It is important to make sure you hire an experienced trial lawyer just in case.

Criminal prosecution - In bicycle accidents involving a motor vehicle, the driver will often receive a traffic citation and will need to appear in court to defend himself or herself. What happens in the traffic or criminal case will have little if any bearing on what occurs in a civil lawsuit. In fact, I have successfully resolved bicycle accident personal injury cases in which the at fault driver was found not guilty of violating the motor vehicle code.
Every case is different and will be resolved on its specific facts. If you have any questions that have not been sufficiently answered in this post feel free to contact me directly or post a comment

Thanks again to Ian and to everyone who came out last night.  If you find yourself in need of a criminal defense attorney click here to view Ian's contact information.  He handles cases throughout the Chicagoland area.

1 comment:

  1. As part of the "gather" phase I write down what happened immediately afterwards. Such as I was driving / riding here, what exactly I saw. This is invaluable since I will be asked again months later, and without notes I have to rely only on memory. Of course I learned that by working with police as an office temp and learning how they handled accidents.

    I saved someone from a hell of a bill by being a witness once and writing it down as soon as I got back to work after it happened really helped when I was grilled later.


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