Not every case is a winner. The nature of litigation implies that there is a irreconcilable issue of dispute that exists between two rational persons. Only when a neutral, or judicial officer, weighs in does it become clear that the law favors one of the two. That being said, it is important for plaintiffs to know the risks of going forward with a lawsuit.
There are plenty of risks. Before I get into the procedural and legal risks, let's discuss the financial risks. Clients, typically, are responsible for the costs of litigation. Costs are not fees (fees are contingent in almost all personal injury cases). Costs include: postage, medical record copy charges, investigation, experts, filing fees, and other court costs. Attorneys will routinely front the costs, and reimburse themselves from the settlement, but if a case is lost, clients could be liable.
Besides the out of pocket costs that could accrue during litigation, there is also the opportunity costs. Litigation can be time-consuming. A plaintiff may have to miss work. She or he may have to prioritize a deposition ahead of a family obligation. Such realities need to be considered by a plaintiff before they are prepared to move forward.
Now to some of the legal risks. A case may not have the best facts, meaning that the evidence may be weak for the plaintiff. For example, although the plaintiff asserts that the defendant ran the red light, there may be five independent witnesses who claim that the plaintiff was the one who ran the red light! In a situation like above, a defendant may utilize the law to his favor. Let me explain.
In California, a defendant may utilize a statutory scheme intended to encourage settlement discussions. California Code of Civil Procedure ("CCP") section 998 allows defendants to make an offer of settlement with conditions. Pursuant to CCP 998, a defendant can incentivize the plaintiff to accept an offer, or face the potential risk of having to pay the defendant's costs and expert fees. An example is illustrative:
Defendant does not believe that he ran the red light. He thinks it was the plaintiff. Plaintiff is certain that it was the defendant, and is demanding a payment of $50,000 for damages incurred. Prior to trial, Defendant makes a CCP 998 offer to settle for $5,000. Plaintiff rejects it. Trial occurs, and the jury awards plaintiff $4,000 in damages. Because the award from the jury is less than the CCP 998 offer, defendant may recover his costs, and expert fees. Defendant's costs and expert fees are $23,000. Now, the plaintiff owes the defendant $9,000 (difference between the jury award, and the CCP 998 award).
In some cases, the plaintiff has no chance of winning! In those rare cases, when an attorney is usually not retained, and the plaintiff is pro per, there is the added risk of malicious prosecution. Malicious prosecution is a tort that the defendant can assert after the initial case is decided in the defendant's favor. It is a lawsuit against the plaintiff for having brought a frivolous lawsuit. It could potentially cost the plaintiff thousands of dollars.
Every case is different, and some cases involve very little risk (a simple rear-end collision with substantial property damage and visible injuries). However, it is important for individuals to consult with an experienced attorney so that he or she may know the risks, if any, before proceeding forward with a lawsuit.
Friday, February 19, 2016
Monday, February 8, 2016
Preliminary Hearings in Felony Cases
A lot of our blog posts touch upon the subject of criminal procedure. The reason: defendants should be aware of what is going on in their case. Too often, defendants are ignorant of what they must accomplish to be cleared of the charges against them. Knowing the different burdens of proof, obstacles, and objectives will only assist the attorney in his or her representation.
With that preface, let us discuss preliminary hearings, commonly referred to as "prelims." A felony case begins with a complaint being filed. A complaint lists out allegations, or criminal charges, against the defendant. Once the defendant is arraigned, where the court explains the charges against the defendant and asks the defendant to enter a plea of guilty or not guilty, a preliminary hearing is set within ten days, unless time is waived (a time waiver allows hearings to be scheduled further out).
A prelim is a probable cause hearing. A judge, or magistrate, hears evidence and then determines whether there is sufficient probable cause to find that the defendant must "be held to answer." Held to answer is a legal term, which means that there is enough evidence for the defendant to stand trial for the charges itemized in the complaint.
The court may dismiss some charges (even all, at times), however, if he or she believes that there is insufficient probable cause. Probable cause is a lower burden to meet than proof beyond a reasonable doubt. Probable cause is met when there are facts that would lead a man of ordinary care and prudence to believe and hold a strong suspicion that the defendant is guilty of a crime.
It is not enough if the prosecutor can only prove some of the "elements" of the crime. All elements of the charged crime must meet the threshold of probable cause, or the charges must be dismissed.
At the defendant's preliminary hearing, an attorney may be present. Most constitutional rights that would apply at trial are also applicable at preliminary hearing. A defendant may cross examine prosecution witnesses. Evidence may also be presented by the defendant to negate an element of the charged crime. There is also a right to discovery, where the prosecution must disclose all exculpatory (helpful) evidence.
Strategically, an attorney may feel that a preliminary hearing is futile, but insist that one take place anyway. Why? He or she will get an opportunity to hear a preview of the prosecution's case against the defendant. It helps prepare the defense attorney for trial. Another reason: an attorney may want to impeach a witness at trial, when there is a likelihood that the witness will testify differently at preliminary hearing. Other times, an attorney may advise that the defendant waive his right to a preliminary hearing --like when there is plenty of evidence to find probable cause.
Defendants should always consult with a criminal defense attorney prior to the preliminary hearing. As stated above, there is a possibility that the case will be dismissed at preliminary hearing. But, more likely than not, if a defendant is not prepared or ready, he or she will "lose" at the preliminary hearing. Thus, a diligent defendant will seek out representation before he or she goes forward to prelim.
With that preface, let us discuss preliminary hearings, commonly referred to as "prelims." A felony case begins with a complaint being filed. A complaint lists out allegations, or criminal charges, against the defendant. Once the defendant is arraigned, where the court explains the charges against the defendant and asks the defendant to enter a plea of guilty or not guilty, a preliminary hearing is set within ten days, unless time is waived (a time waiver allows hearings to be scheduled further out).
A prelim is a probable cause hearing. A judge, or magistrate, hears evidence and then determines whether there is sufficient probable cause to find that the defendant must "be held to answer." Held to answer is a legal term, which means that there is enough evidence for the defendant to stand trial for the charges itemized in the complaint.
The court may dismiss some charges (even all, at times), however, if he or she believes that there is insufficient probable cause. Probable cause is a lower burden to meet than proof beyond a reasonable doubt. Probable cause is met when there are facts that would lead a man of ordinary care and prudence to believe and hold a strong suspicion that the defendant is guilty of a crime.
It is not enough if the prosecutor can only prove some of the "elements" of the crime. All elements of the charged crime must meet the threshold of probable cause, or the charges must be dismissed.
At the defendant's preliminary hearing, an attorney may be present. Most constitutional rights that would apply at trial are also applicable at preliminary hearing. A defendant may cross examine prosecution witnesses. Evidence may also be presented by the defendant to negate an element of the charged crime. There is also a right to discovery, where the prosecution must disclose all exculpatory (helpful) evidence.
Strategically, an attorney may feel that a preliminary hearing is futile, but insist that one take place anyway. Why? He or she will get an opportunity to hear a preview of the prosecution's case against the defendant. It helps prepare the defense attorney for trial. Another reason: an attorney may want to impeach a witness at trial, when there is a likelihood that the witness will testify differently at preliminary hearing. Other times, an attorney may advise that the defendant waive his right to a preliminary hearing --like when there is plenty of evidence to find probable cause.
Defendants should always consult with a criminal defense attorney prior to the preliminary hearing. As stated above, there is a possibility that the case will be dismissed at preliminary hearing. But, more likely than not, if a defendant is not prepared or ready, he or she will "lose" at the preliminary hearing. Thus, a diligent defendant will seek out representation before he or she goes forward to prelim.
Sunday, January 24, 2016
Driverless Cars: Litigation of the Future?
The other day, a prominent legal show featured a storyline that involved a driverless car lawsuit against a large tech company. Plaintiff's attorney held a deposition and questioned the designer on artificial intelligence ("AI"), potential bugs, and knowledge regarding the risks of a collision. It was exciting, full of conflict, and made for a good episode.
Issues surrounding driverless technology are not new. Recent news articles have documented accidents that have occurred with driverless vehicles. Creators of the self-automated vehicle were quick to blame humans, instead of the AI. According to automobile insurance data, the tech gurus were right; the humans were found to be at fault.
But, conclusions also showed that driverless cars may be too cautious. Pedantically, driverless cars follow the rules of the road. They do not drive as humans do. And that may be one reason why accidents have occurred. When we drive, intentionally or not, humans have a way of adapting to the situation and bending the rules. Other drivers are aware of this phenomena and respond accordingly. AI vehicles are not programmed, at least not yet, for dealing with slight infractions (although some driverless companies have taken steps to tweak rule-following).
Regardless, accidents do occur. People get injured. With respect to personal injury law, driverless cars will lead to dramatic changes in how cases will proceed forward. Why? Our current system allows for human actors to open a claim (or sue) the other driver responsible for the accident. When there is no other driver, whom does the injured party seek redress? It will likely be the driverless car manufacturer. Suing car manufacturers falls under the umbrella of product liability. While it shares similarities with negligence cases, it is distinct.
The standard modus operandi for personal injury attorneys will be affected by technology. Ultimately, however, legislators will be responsible for creating the new laws/rules regarding self-automated vehicles. Until then, one can only speculate how this technological development will specifically impact injury accident cases.
Issues surrounding driverless technology are not new. Recent news articles have documented accidents that have occurred with driverless vehicles. Creators of the self-automated vehicle were quick to blame humans, instead of the AI. According to automobile insurance data, the tech gurus were right; the humans were found to be at fault.
But, conclusions also showed that driverless cars may be too cautious. Pedantically, driverless cars follow the rules of the road. They do not drive as humans do. And that may be one reason why accidents have occurred. When we drive, intentionally or not, humans have a way of adapting to the situation and bending the rules. Other drivers are aware of this phenomena and respond accordingly. AI vehicles are not programmed, at least not yet, for dealing with slight infractions (although some driverless companies have taken steps to tweak rule-following).
Regardless, accidents do occur. People get injured. With respect to personal injury law, driverless cars will lead to dramatic changes in how cases will proceed forward. Why? Our current system allows for human actors to open a claim (or sue) the other driver responsible for the accident. When there is no other driver, whom does the injured party seek redress? It will likely be the driverless car manufacturer. Suing car manufacturers falls under the umbrella of product liability. While it shares similarities with negligence cases, it is distinct.
The standard modus operandi for personal injury attorneys will be affected by technology. Ultimately, however, legislators will be responsible for creating the new laws/rules regarding self-automated vehicles. Until then, one can only speculate how this technological development will specifically impact injury accident cases.
Wednesday, January 6, 2016
New 2016 Law Will Require a Database for Police Stops
In the wake of tragic police stories around the country, California took a step in transparency and accountability. Governor Brown has mandated that law enforcement agencies develop a program by 2018 that would allow them to collect and report data on the people they stop. Data will include perceived race and ethnicity, and the cause for the stop.
Similar to other actions taken, Governor Brown cited the phenomenon of "jail and prison populations [exploding]." He also discussed the byzantine California Penal Code, which "[covers] every conceivable form of human misbehavior." Since his day first day in office, he has been serious about criminal justice reform. He believes that this database will result in more justice and more fiscal savings.
Police are not allowed to stop individuals at whim. There must be probable cause for an investigatory stop. "Driving while black or brown" will not suffice. A reported stop that lacks probable cause will face scrutiny from law enforcement, attorneys, and judges. This is a step in the right direction. Far too often cases will be based off an illegal stop.
A separate 2016 law will require protocol to be established for the handling of body cameras worn by police officers. The law intends to ensure that recordings are not mishandled or damaged. Again, criminal litigation relies heavily on recorded evidence. A video may contradict a witness statement, or result in exculpatory evidence for the defendant.
Like stated in previous blog posts, California has a problem with over-incarceration but steps are being taken to address them. These laws will address issues that begin at the outset of a criminal case: the initial police stop and evidentiary support for an arrest. A person cannot be convicted, most of the time, if an arrest was unconstitutional.
If you, or someone that you care about, is arrested for a crime, it is important to seek the advice of experienced counsel. Laws are ever changing and complex. It is essential to consult with someone who may be familiar with new laws that could impact your case.
Similar to other actions taken, Governor Brown cited the phenomenon of "jail and prison populations [exploding]." He also discussed the byzantine California Penal Code, which "[covers] every conceivable form of human misbehavior." Since his day first day in office, he has been serious about criminal justice reform. He believes that this database will result in more justice and more fiscal savings.
Police are not allowed to stop individuals at whim. There must be probable cause for an investigatory stop. "Driving while black or brown" will not suffice. A reported stop that lacks probable cause will face scrutiny from law enforcement, attorneys, and judges. This is a step in the right direction. Far too often cases will be based off an illegal stop.
A separate 2016 law will require protocol to be established for the handling of body cameras worn by police officers. The law intends to ensure that recordings are not mishandled or damaged. Again, criminal litigation relies heavily on recorded evidence. A video may contradict a witness statement, or result in exculpatory evidence for the defendant.
Like stated in previous blog posts, California has a problem with over-incarceration but steps are being taken to address them. These laws will address issues that begin at the outset of a criminal case: the initial police stop and evidentiary support for an arrest. A person cannot be convicted, most of the time, if an arrest was unconstitutional.
If you, or someone that you care about, is arrested for a crime, it is important to seek the advice of experienced counsel. Laws are ever changing and complex. It is essential to consult with someone who may be familiar with new laws that could impact your case.
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