Liable but broke: Why some legal battles aren’t worth fighting

While it may sound cynical, lawsuits are really about money. Injured people initiate lawsuits because they need money to cover their medical bills, help them cope with disabilities and time off work, and replace lost or damaged property. In fact, a basic principle of the tort legal system is that almost all injuries can be converted into a dollar amount. Of course, attorneys also need to be paid in order to keep their practices open and continue serving clients, and finally the legal system itself costs money to operate. As a result, after all the legal questions have been addressed, all the evidence gathered, lawsuits come down to a collection effort. The amount due, whether from an insurance settlement or a court ordered judgment, must be paid or the entire effort will have been for nothing. Unfortunately, some defendants simply don’t have any money, or at least not enough to pay for the damages they caused. Even where money is available on paper, actually getting those dollars to the proper person can sometimes be challenging.

Because of these issues, one of the factors that significantly impacts the viability of a lawsuit is the predicted ability to collect on any positive outcome; in short, the question of whether or not the plaintiff can actually get paid at the end. There are many reasons why collecting on a judgment might be difficult. Sometimes even the best cases, those with clear liability on the part of the defendant and serious damages to the plaintiff, are just not viable in practice.

Indigent Defendants

The most common of these heartbreaking cases involve situations in which the defendant simply does not have any resources from which to satisfy their legal obligations to the injured plaintiff. It might be that the at-fault driver of the car that caused the pile-up only carried state-mandated minimum levels of car insurance (currently a mere $15,000/$30,000); nowhere near enough to cover a prolonged hospital stay or major surgery for even one person, let alone several passengers. Or perhaps the responsible party is simply low-income and has neither property nor a steady source of revenue from which to pay a judgment. Whatever the circumstance, the collectability of a suit may make even good legal situations into poor practical cases.

Bankruptcy

The threat of paying out on a judgment or settlement may drive a defendant to seek refuge in the bankruptcy system. In bankruptcy, many legal judgments can be discharged for mere pennies on the dollar, or sometimes for nothing at all. The bankruptcy process essentially gathers all of a defendant’s assets into a single pool and uses that pool to pay as much of the defendant’s debts as possible. In other words, if a defendant has 100,000 worth of debt and only 50,000 worth of assets (property, savings, etc.), the bankruptcy courts will use their authority to distribute that 50,000 evenly among the creditors; each of whom will collect approximately 50 cents for every dollar they were originally owed. At the end of this process, each of the debts that were addressed by the court will be considered settled in full, thereby wiping out any further capacity to collect on those debts. In many bankruptcies, the debtor has so few assets that almost nothing is paid to creditors. Where those creditors include an injured plaintiff, even the best of legal judgments may not earn the plaintiff any real payment.

Medical Providers and other outstretched hands...

In many personal injury cases, a plaintiff is left with substantial medical bills. Even where some portion of these bills is covered by health insurance, the policies frequently include provisions which give the insurer some right to at least a part of any eventual legal settlement. Known as subrogation rights, these provisions may mean that a successful plaintiff obtains a settlement or judgment, collects the money, and then has to turn around and give a large portion of those dollars to an insurance company to repay them for the cost of earlier care. Where there is no insurance, medical providers may seek payment from a legal settlement directly. In some situations, cautious defendants will even seek to pay such providers directly, in others insures may get a court order to directly pursue some of the settlement or judgment. Effective attorneys understand when and how these kinds of subrogation and payment demands will develop and can advise a prospective client about the repercussions of the case right at the outset.

Costs of trial

Even where eventual payment seems likely given the resources of the defendant in question, the costs of running a trial to the point of collection can be prohibitive. Sometimes to win a trial money must be spent; occasionally large amounts of money. To make matters worse, some cases take many years to work their way through the courts. In these situations, someone has to cover the ongoing costs of managing the case. These costs don’t just include lawyer’s fees but can also stem from the charges of experts, document fees, or the costs of obtaining evidence. While many personal injury attorneys work on a retainer system under which they get paid only at the end of a successful case, the risks involved might be simply too high to merit a substantial up-front investment.

What it all means

In the end, what most plaintiffs really care about is being made whole for their injuries; about collecting money to cover their expenses, pain, and other losses. Unfortunately, even where there is a clear legal case, even experienced attorneys may sometimes be unable to take it because of the low probability of obtaining payment or because of the high costs of trial. While most personal injury attorneys really do understand and appreciate the pain and suffering of their clients, some cases just do not have a sufficient likelihood of a positive collection effort to be worth taking. No matter how much an attorney wants to take a case, no matter how sympathetic a client’s plight, if there is no way to get paid at the end, no one comes out better off from a fruitless legal battle.

Innocence Under Threat

300 exonerated, Too many wrongfully convicted.

To most people, largely those who have never been under its supervision, the Criminal Justice System in America is about catching the guilty and punishing them; removing them from society. From this perspective, justice equals a conviction, and perhaps a sufficiently severe sentence. Constitutional guarantees like the right to an attorney, the protection against forced self-incrimination, or provisions for the humane treatment of suspects are roadblocks to justice; merely tolerated in a civilized era. To society at large, the justice system is effective. Suspects are almost as good as convicts, confessions obvious signs of guilt, and eyewitness identifications nearly the word of god. “Getting off on a technicality,” is the buzz phrase the lay observer caustically tosses at anyone the system exonerates despite even a modicum of evidence.

To individuals like Sylvester Smith, convicted for the molestation of two little girls he never touched, the justice system has a darker side. Smith served 20 years for a crime he was later conclusively proven not to have committed while the real offender ran free, eventually committing a murder which would have been prevented had the system not misidentified Smith as the primary suspect in the molestation case. Few people, however, stop to fully consider this other side of the system, to understand the reason behind the protections afforded to criminal suspects by the law, or to appreciate their necessity.

A system in jeopardy

Unfortunately, statistics paint a rather grim picture of the efficacy of our criminal justice system and stories like Smith’s are far too common. While a large portion of offenders are indeed caught and convicted, grave injustices abound. Despite the hard work of a great many astute detectives, conscientious prosecutors, diligent defense attorneys and dedicated judges a shockingly high number of completely innocent individuals are caught and ground to pieces in the wheels of justice; sometimes in clear violation of state and federal civil liberties. While exact numbers of wrongful convictions are hard to gauge, a recently released report shows that more than 2000 felony convictions have been overturned as unfounded since 1989, over half due directly to police scandal. The average wrongful prison sentence: 13 years.

Faced with this harsh reality, some activists are pushing for much needed reforms. At the front of the pack is the Innocence Project, a non-profit organization dedicated to utilizing DNA evidence to overturn the convictions of innocent suspects. Among the several issues identified by the innocence project as most commonly leading to a wrongful conviction, erroneous eyewitness identification, false confessions, and faulty scientific evidence are the worst offenders.

Mistaken Eyewitnesses
According to Innocence Project statistics, 73% of defendants exonerated by post-conviction DNA testing were put behind bars due in part to mistaken eyewitness identification. Despite the fact that research consistently demonstrates the inherent unreliability of such identification (in fact, eyewitness identification has been shown to be one of the least reliable pieces of evidence in a criminal trial), most jurisdictions continue to utilize the tool and juries treat such identifications as nearly infallible in practice. There are, however, ways in which eyewitness testimony can be used without sacrificing justice for the sake of efficiency; and reforming the use, and collection, of eyewitness testimony is critical to improving the quality of our judicial apparatus. 

False Confessions
While confessions are often considered the gold-standard of criminal evidence and few people who have not faced a harsh police investigation can imagine ever offering a false confession, a surprisingly high number of wrongful convictions nonetheless involve this particularly troublesome item of evidence. The subject of two different Constitutional provisions --the fifth and sixth amendments-- and a number of widely recognized Supreme Court decisions, Miranda warnings are perhaps the best known, confessions can be problematic at best, yet once submitted to a jury they are almost always damning.

Bad Science
Scientific evidence can often go awry; responsible for about 50% of wrongful convictions which were later overturned by new DNA evidence. While DNA analysis or fingerprint matching, for example, have undergone rigorous scientific exploration and demonstration, individual investigative and lab practices vary dramatically throughout the country, sometimes even throughout a single state. Unless carefully managed, such scientific evidence is less than worthless and, in some cases, actually leads to disastrous results. Contaminated samples, improper transportation and handling, and lab mistakes can all lead to false positive connections which in turn can lead to wrongful convictions.

Reform

Serious problems face our nation’s criminal justice institution and the work done by the Innocence Project and other similar organizations is vital, both to the innocent convicts exonerated as a direct result of these groups’ efforts and to the population as a whole made safer by the systemic reforms for which these organizations advocate. To learn more about these serious problems and the ways in which you can help to improve our system of justice, please visit the Innocence Project directly. To see whether you or a loved one has a valid post-conviction case, contact our office.

Do I Need Uninsured Motorist Coverage?

Clients frequently ask me what uninsured motorist coverage means and if it’s something they need to buy with their car insurance policy. In a perfect world, the easy answer would be no. Why pay for insurance coverage for other people who are already required by law to buy their own policies? Unfortunately, the reality in California is somewhat less idyllic. While it is true that California law requires all drivers to maintain sufficient financial responsibility (practically speaking, car insurance), the unfortunate truth is that far too many drivers are on the road without insurance coverage. In fact, as of 2004 -- the last year for which statistics are reported on the State’s insurance portal, just over 14% of California drivers did not have even the minimum insurance coverage required by law.

Many more drivers carry only the state minimums--currently $15,000 per person, $30,000 per incident, a level sufficient to cover only the most minor of accidents. As a result, California drivers are generally advised to carry Uninsured/Underinsured Motorist coverage riders on their car insurance policies. Here is an overview of what each term means and how such coverage can help to protect you and your passengers.
Uninsured Motorist Coverage

Uninsured motorist coverage (UM) is insurance provided by your own insurance company which will pay you, and your passengers, for injuries caused by another at-fault driver who does not themselves have any insurance coverage for the accident in question. In other words, it’s coverage you buy for other people who might hit you. This type of coverage is necessitated by the fact, as noted above, that so many California drivers don’t carry sufficient insurance of their own.

Frustrating as it may be to pay for insurance which is essentially designed to cover someone else’s actions, the benefits often far outweigh the costs. While the cost of obtaining UM insurance varies depending on the amount of coverage, the company providing the policy, and the vehicles or drivers for which coverage is sought, the costs of an accident often greatly exceed any such premiums; frequently to the tune of several thousand dollars.

For example, according to statistics provided by the California DMV, the average cost of a level 1 accident--the least severe accident type on their scale-- is over $12,000; a number that greatly exceeds the usual cost of retaining UM coverage for several years. In other words, a single accident in which your insurance company pays you out of UM coverage is likely to more than make up for what most people spend on such coverage.

Underinsured Motorist Coverage

Underinsured motorist coverage (UIM) is similar to UM coverage except that it steps in even when the other driver has insurance but where that person’s coverage is insufficient to pay for the extent of the damages they cause you. In other words, it’s insurance you buy to cover people who don’t buy enough insurance of their own.

There is one small catch to UIM coverage. The at-fault party’s available insurance is deducted from the amount your company will pay you out of your UIM policy. For example, let’s say that someone hits you and is found at-fault; causing you $30,000 in damages. Let’s further say that this defendant had state minimum coverage of only $15,000. Finally, let’s say that you have chosen to purchase UIM insurance in the amount of $30,000. After the dust settles, you’ll collect $15,000 from the offending party’s insurance carrier (their policy limit) and an additional $15,000 from your own UIM coverage ($30,000 in UIM coverage - $15,000 from the other party), for a grand total of $30,000 in damage compensation.

As this example demonstrates, a driver who did not buy UIM coverage would find themselves left with $15,000 in unpaid expenses as a result of the same accident. As with UM coverage above, the cost of obtaining UIM coverage is usually much less than the cost of covering the other party’s insurance gap out of your own pocket.

Health Insurance is not the same

Many people counter that they have health insurance that will cover the costs of treatment after an accident and ask if this will reduce the incentive to purchase UM and UIM coverage. The answer is a solid NO. Health insurance is not the same thing as accident insurance. Health insurance is not designed to compensate you for the whole of an accident, it only covers your medical expenses. Health insurance will not pay you for lost wages, will not pay to fix your car, and will not cover your passengers, unless they have their own health insurance coverage. Additionally, health insurance is often not comprehensive. Some medical treatments are not covered at all, others are covered only for a limited period of time, and still others are covered only after expensive co-pays and deductibles are met out of pocket.

Having health insurance will help to smooth the recovery process after a car accident, but it does not come close to replacing proper liability insurance in most situations. Don’t gamble with a patchwork of coverage when UM and UIM coverage are so readily available.

They’re required to offer

In California, insurance carriers are required to offer Uninsured and Underinsured motorist coverage with all car insurance policies that they sell in the state. If you need more information about obtaining this kind of coverage for you or your family, we strongly recommend that you contact your insurance carrier immediately for details. Further, if you have been involved in an accident, we can aggressively handle your case so you can recover all that is owed to you; including the claims that may fall under your UM and UIM coverage in your own insurance policy.

Early Parole for Juveniles is the Right Move for California

Elizabeth Lazano, center, was 16 when she was sentenced to
life in prison for a murder her boyfriend committed. 

“How we treat our children defines our society and defines us as human beings,” says California Democratic State Senator Leland Yee. Unfortunately, when it comes to criminal justice, the United States doesn’t have a great record with regard to child defendants. Currently California has over 6,500 inmates serving adult style sentences for crimes they committed as children, 309 of these teens were incarcerated for life. While some of these kids may have deserved a harsh sentence, almost half were convicted as accomplices only and some are currently leading exemplary lives.

Elizabeth’s story

Inmate Elizabeth Lozano is one of them. Involved with an LA street gang in the early 1990s at the age of only 16, Elizabeth was present when her boyfriend shot and killed another gang member. Sent to Mexico by her frightened parents, Elizabeth returned to the United States two years later, then pregnant with her son and completely unaware that she was a wanted person. She was shortly arrested for the two-year old killing and was eventually sentenced to life without parole as an accomplice to the murder. Elizabeth played no direct role in the victim’s death.

Today, Elizabeth has most of a college degree and works as a prison counselor helping to keep other kids out of the gang lifestyle. She is now 37 years old and has spent more than 21 years in prison for a murder she didn’t herself commit. While there is no denying the tragedy of the life lost in Elizabeth’s case or the pain suffered by the family of the victim, it’s hard to rationalize the additional cost of having to detain Elizabeth for a life sentence.

No mandatory life sentences for kids

The United States Supreme Court agrees, at least partially. In 2012 the court ruled that mandatory life without parole was inappropriate for juveniles, even those who are tried as adults, insisting that judges must have the latitude to decide the appropriate sentence taking into account the reduced culpability of children and the special circumstances of the individual situation. In the last year, California has gone two steps further, first requiring the state parole board to consider early release for minors convicted as juveniles and later requiring the board to do the same for minors tried as adults, even those originally sentenced without the possibility of parole.

Governor Brown agrees

Signed by Governor Brown in September of this year, Senate Bill 260 gives prisoners like Elizabeth a second chance at life. Opponents of early release argue that the crimes these children committed warrant harsh sentences, a position that is hard to support given the fact that so many of the affected inmates were convicted only as accomplices. “Our hearts go out to those families [of victims], but if it turns out there's a way of salvaging another life, shouldn't we also look at that?," says Senator Yee in a recent interview, espousing the opinion of a growing majority of psychologists and behavior experts. “Petty much everyone agrees [these defendants have] less culpability,” says children’s rights advocate Elizabeth Calvin.

It’s the right thing to do

Children are our nation’s greatest treasure. When teens, especially young teens, commit crimes, it’s hard not to feel some of the blame as responsible adults. Locking these kids up for life because of mistakes they made in their youth is just too convenient a solution, one that often ignores the larger social problems which may be root causes of some of the crimes under consideration. Fortunately the California legislature recognizes this and is working hard to strike a better balance between protecting victims and salvaging the lives of young offenders.