Sunday, June 26, 2016

California Requires Insurance Carriers to Offer UM / UIM Coverage

In some cases, an attorney may have to go an extra step in securing valid coverage for an accident. Like in life, not every person driving a vehicle is a perfect driver. Some may not have a valid driver's license. Some may not have liability insurance or proof of financial responsibility.  Even though California requires liability insurance with limits of a minimum: $15,000, some drivers disregard the law.

An accident that involves an uninsured driver will result in: (1) a license suspension for the uninsured driver; and (2) trigger coverage for the other driver pursuant to the uninsured motorist provision in the insured's own insurance policy.

Bad news is sometimes given to clients when it is confirmed that they waived their uninsured / underinsured motorist coverage. Thus, they are left with the sole option of pursuing damages from the uninsured driver directly, which typically means that they are left with no justice (most often, uninsured drivers have no recoverable assets and the costs of seeking a judgment outweigh any benefits).

But, a good attorney will go the extra mile. They will not take the insurance carrier's word without proper evidence. Trust, but verify.

California Insurance Code section 11580.2 subsection (a)(1) obligates the insurance carrier to offer uninsured motorist coverage. It also requires a written waiver of the insured when they do not want the coverage. An attorney must always request the written waiver when the carrier states that there is no UM coverage.

If the carrier cannot provide the written waiver with the client's signature, pursuant to subsection (p)(7), uninsured motorist coverage will exist for the insured. It enables the insured to recover a settlement to pay for medical bills and pain and suffering.

If you, or someone you know, has been involved in an accident with an uninsured motorist, contact an experienced attorney. He or she may be able to obtain UM coverage despite an insurance carrier's assertions that no UM coverage applies.

Monday, June 13, 2016

Defending Against a Minor in Possession Criminal Charge

America is different than Europe and the rest of the world in many ways. When it comes to alcohol, one big difference is the legal age an individual can purchase and consume alcohol. In California, a person must be 21 to purchase and consume an alcoholic beverage. Moreover, being a minor and possessing an alcohol beverage in public could lead to a criminal charge.

California Business and Professions Code section 25662 prohibits minors, under the age of 21, from possessing an alcoholic beverage in any public place. The short term for this offense is "MIP," minor in possession. A MIP is a misdemeanor, meaning that it carries potential ramifications on a person's criminal record. One cannot go to jail, but there is the possibility of significant community service hours.

Not as well-known is the penalty related to a person's driver's license. Pursuant to California Vehicle Code section 13202.5, a person convicted of MIP will face a one-year license suspension, or a one-year delay in obtaining a driver's license. Each subsequent offense carries an additional year of suspension or delay. Thus, a person convicted will not only face a fine, community service, criminal record, and a license suspension, he or she will also be burdened with trying to find transportation to and from obligations.

Like with every criminal charge, there are available defenses that could result in a dismissal. An illegal search or seizure, i.e. no probable cause, will be favorable to a defendant. Also, there are written exceptions to MIP. A person working as a waiter or server cannot be convicted if he or she is performing duties related to their employment.

Perhaps the most magnanimous decision by the legislation was to add immunity to a minor who calls 911 for purposes of aiding a minor who needs medical attention due to alcohol consumption. It is a wise amendment because it saves lives; the law encourages individuals to seek help, instead of trying to avoid criminal prosecution.

There are some common sense requirements for the immunity to be applicable. The caller must be the first caller to 911. So if there is a party, not every single minor will receive the benefits of the law, if each one calls separately. The caller must also stay on the scene and cooperate with law enforcement or medical emergency personnel.

A minor in possession charge is a misdemeanor with serious consequences. If you, or someone you know, is charged with MIP, contact an experienced criminal defense attorney for assistance.

Sunday, May 29, 2016

Managing Client Expectations in an Injury Case

A client is similar to a screenwriter. They have fantastical ideas, which turn into grandeur images in their head. Most of those ideas involve unrealistic expectations as to what the true value of their case is. For some reason they believe that an accident claim is a ticket to retirement. Most often, it is not.

Managing client expectations is not only important for the client, it is important for the attorney. For one, an attorney should never create a false impression. Controlling the narrative of what to expect will help an attorney remain disciplined in how he or she communicates with clients. Two, relationships are the foundation of a good law practice. One relies on referrals to survive. A happy client, which means a client who is not surprised with a result of a case, will refer family and friends in the future.

Communicating to the client about the value of his or her case can be difficult. Case value is subjective. That is why claims are fought over in litigation. As one may guess, the defense will value the case less than the plaintiff, and vice versa.

But evaluating a case can also hinge on objective factors. Any case has value when there are damages that can be proven. Damages can be shown via medical bills, lost earnings, etc. A bigger case may involve more medical bills because the accident required significant treatment. For example, if a plaintiff broke both legs, he or she will have higher medical bills than a person who only suffered whiplash (although many whiplash clients experience horrible nerve pain, which affects them for a lifetime). Indeed, the plaintiff with broken legs may not be able to work, while the whiplash plaintiff may continue on with work the very next day after the accident. Under the law, a plaintiff is compensated for those medical bills incurred and the earnings lost because of injury.

Other factors go into determining the value of a case. The reliability of the client will go a long way. Remember that the point of litigation is that both parties are satisfied with the case going to trial by jury. Each side is preparing for a jury trial, meaning that they are organizing when witnesses will testify, and what they will testify to. A client who comes across well-liked, truthful, sympathetic, and aggrieved will increase the value of a case. An attorney does not want a client who will testify poorly in front of a jury.

Putting all of the pieces together and telling a client what a case should settle for remains a risk. The judgment, or arbitration award, or agreed mediation proposal, could be lower than what was communicated. That is why an attorney should give a range, beginning with the worst case scenario (we could lose!) to the best case scenario (the best case scenario should be lower than what you actually think the best case scenario is). More importantly, the attorney should clearly communicate that it is an experienced guess but not a guaranteed opinion. Nothing in personal injury law is guaranteed. If someone tells you different, I would speak with someone else.

Always consult with an experienced injury attorney after an accident. An attorney should not only manage expectations, they should give you, or a loved one, peace of mind.

Friday, May 13, 2016

Lessons from the Popular Podcast "Serial"

My wife and I finished the first season of the podcast "Serial." The popularity of the podcast does not surprise me. Not only was the presentation well done, but the integrity of the investigation was sound. For those who may not know what I am referring to, "Serial" is an expose into the 1999 murder of Hae Min Lee, a charming, brilliant high school student.

A jury in Baltimore convicted Adnan Syed, the former boyfriend, for the crime. "Serial" relied upon conversations with Adnan Syed to assist in its own investigation. Adnan was good-looking, friendly, and endearing to his peers so the conviction came as quite a shock to many people in the community. His conviction is currently being challenged via a petition for writ of habeas corpus.

The case, tragic in a myriad of ways, is a good example of what post-conviction relief looks like. First, let us discuss the evidence against Adnan. Then, we will discuss some potentially exculpatory evidence that is being used in his habeas case. Lastly, some final thoughts will be given.

The prosecution's case against Adnan was built upon the testimony of Adnan's friend Jay (not real name). Jay gave testimony that Adnan had planned Hai Min Lee's murder, told Jay about it, and then asked Jay to assist in the burying of the body after the murder. This testimony in conjunction with cell phone tower evidence (used much more today than at the time of the trial) was the crux of the prosecution's case. Jay's inconsistencies were many, but the cell phone tower evidence corroborated his story that he was in Leakin Park (a park near Baltimore) with Adnan on the night that Hae Min Lee went missing. Hae Min Lee's body was found in Leakin Park a few months later.

Despite Adnan hiring one of the most renowned criminal defense attorneys in Baltimore, Cristina Gutierrez, he lost at trial. One of the main arguments used Adnan's habeas petition was that Cristina Gutierrez provided ineffective assistance of counsel. Specifically, Adnan claimed that Cristina Gutierrez failed to contact an alibi witness who wrote a letter to Ms. Gutierrez stating that she had seen Adnan Syed in the library at the time the prosecution believed Hae Min Lee was murdered (he is also claiming that Cristina Gutierrez failed to seek a plea deal with the prosecution).

A judge has to decide whether Ms. Gutierrez's failures resulted in fundamental unfairness for Adnan, and whether a new trial is warranted.

Most habeas petitions include an argument of ineffective assistance of counsel (IAC). Given the Supreme Court's recent expansion of the law with respect to plea bargaining, it is a good argument to make. Attorneys are not perfect, and the law should not expect them to be. As such, relief should be given to those defendants who were not given a fair trial because their attorneys were inadequate.

Adnan Syed's case also involves DNA evidence. An innocent project clinic is moving to test evidence collected -- where Hae Min Lee's body was found -- that has never been tested before. It is the hope of Adnan that the DNA evidence will exculpate him for the murder of Hae Min Lee.

Like IAC, using DNA evidence to prove factual innocence is common in post-conviction relief. California has even taken steps to lower the standard at which evidence can be tested. Other states have implemented better DNA evidence protocol with respect to police investigations, i.e. they must keep the evidence a certain period of time, ensure its authenticity, etc.

No matter what, seeking post-conviction relief via a writ of habeas corpus is an uphill battle. Most, and I emphasize most, cases are dismissed with prejudice. The burden shifts immediately after a defendant is convicted, meaning that the People do not have to prove a case beyond a reasonable doubt. It is up to the petitioner to prove his innocence. It is very difficult to do; just ask Adnan Syed.