AboutDoctor Settlement Expertise 27 years of front line plaintiff`s trial lawyer experience in PERSONAL INJURY INSURANCE CLAIMS. Along with other attorneys and insurance adjusters, we have created a website to help injured people settle their own personal injury claims. With the help from feedback from hundreds of satisfied members, www.settlementcentral.com has become THE AUTHORITY for Internet personal injury insurance claim settlements. I am humbled and honored if people can benefit from my experience and current volunteer work in helping injured people. I hope I can explain things in a manner that is useful for the questioner. If not, do not hesitate to e-mail me and I will take a second shot at it! Best Wishes for your physical and financial recovery.
Experience
Life Experience: 27 years of front line plaintiff's trial lawyer experience
Organizations: American Trial Lawyers Association (AAJ)
Washington State Trial Lawyers Association
Awards and Honors:
I am humbled and honored everytime I am selected to help injured people. And when people give feedback that they have benefited from my experience and current volunteer efforts, then that is a double honor and award for me.
How can a Pro per Plaintiff retain "Expert Witnesses"
to view/document/assess the site of a "slip and fall"
accident.
Although I am very aware that Pro per litigation is
not recommended,as so many Attorneys have turned
me down on this case, stating among other reasons -
Trial would be to lengthy
Trial would be to expensive
Experts would be to expensive
Yada, yada!(Defendants are a hugh multi-Billion dollar
corporation and have virtually UNLIMITED FUNDS AND
LEGAL RESOURCES!
So, proceeding in Pro per, I have contacted several
Expert Witness Firms with no success. Not "ONE" of
the Firms (or individuals) will work with a Pro per
Plaintiff.
My need for "Expert Witnesses" is for demonstration
of co-efficiency, measurements, level of speed/velocity
Height/length of angle (ramp/slope involved) pertaining to the "slip and fall" on an invisable
Transatory Foreign Substance (oil/grease.)
Anyone have any suggestions?????????
Your comments or directions would be of the
greatest help!
Patty
ANSWER: Hi Patty,
Dr. Settlement teaches how to settle personal injury claims without an attorney, but we DO NOT recommend getting into litigation on your own (unless just small claims court or to toll the statute of limitations). There are JUST TOO MANY PITFALLS in a complex piece of litigation and there is not going to be any safety net when the pro se plaintiff fails in a technical requirement. Hence, please seek counsel to help you. If they are unwilling to take the case, then raise the amount of their fees to 45% or higher.
Now, since that piece of advice is not why you wrote to me, let me see about answering your question. I feel for you since you think you do have a claim, and no one is willing to help you. Hence, I will give you more than an hour of my time going over premises liability cases and proof issues.
Before you hire an expert, how about checking the ramp for compliance with the local building code?
I have had three ramp cases that were ALL WON ON BUILDING CODE VIOLATIONS. Let me give you just a bit to contemplate on this topic. The building code will state that a ramp that drops a certain height over a certain length MUST HAVE A HANDRAIL. The code will also state that a ramp of a certain width MUST HAVE A HANDRAIL in the middle. Lighting is also a requirement for some ramps.
Can you approach liability on the basis that if the lighting was satisfactory you would have seen the substance? Did they have a duty to place non-skid on the surface?
Defense to liability on a ramp claim is also important. Remember that if it is a store or such, they always have some kind of display at eye level to attract your attention.
OK, on to the substance itself and the need for an expert. Most juries will understand that a person will slip on a ramp covered with a slippery substance. You do not need an expert to so testify. All you have to do is to produce a photo of the ramp, its measurements, and the fact that there was a slippery substance on part of it. THAT IS ALL YOU HAVE TO DO TO MAKE OUT A PRIMA FACIE CASE. That means such a proof will get you past a motion to dismiss and to the jury.
I would hire an attorney by the hour to outline your proof for you. She will show you WHAT you need to prove, and the EVIDENCE you need to prove it.
Absent that, and if you still insist upon getting an expert, they abide by the old axiom: “money talks and BS walks.” Hence, get them the cash they need and they will gladly do your study and testimony. I suspect that you are trying to get them to do their work-up and testimony without paying the cash up front. Only established law firms can get them to do that. They have been burned too many times. Plus, anyone knows that it is a defense attorney’s dream to cross examine such an expert and show that he is waiting to be paid pending the outcome of the case. Hence, you pay first and they will play.
But in ALL THE PREMISES LIABILITY CASES I EVER HAD, I HIRED ONLY ONE EXPERT. The rest of the proof is always common sense. Why do you think you need one?
My bet is that you really need instead to focus on the liability issue. LIABILITY is ALWAYS the key issue in premises liability cases. Why?
There is no automatic liability against a business; one has to show negligence on their part. Maybe they should have put track lighting on a ramp, or maybe non-skid surface, or maybe a handrail. In any case, one can weigh the benefit of providing ramp safety versus the burden in cost. Since the cost would be minimal to put in non-skid or a handrail, and since the consequences of falling are really severe injuries, THE CONCLUSION is that the business or apartment complex (or whatever it is) BREACHED ITS DUTY OF CARE OWED TO PATRONS.
Premises Liability (Slip Or Trip And Fall Accidents) http://www.settlementcentral.com/page3006.htm is an excellent review of premises liability or slip and fall accident confusion as to liability. There are three good examples on that page to show you the difference between liable property owners and those whom one cannot sue.
The business IS NOT AN INSURER OF YOUR SAFETY. You can recover ONLY if you can show that the business was negligent, and even then, your award will be reduced TO THE EXTENT OF YOUR OWN NEGLIGENCE IN FAILING TO WATCH WHERE YOU WERE WALKING. The property owner will raise this defense in an effort to reduce your award.
The duty of the business toward its patrons is one of affirmative obligation to inspect and to remove any dangers, such as a loose board in the ramp or a spilled meal. But there is also an affirmative duty to protect the patrons from a foreseeable risk if the cost of that protection is reasonable. In this case, the cost of providing a safe ramp should be minimal.
Now, once again let’s look at your own liability. It will not defeat your claim, but your negligence can be used to reduce the amount of your award. So here is your lesson: assume that they will claim that you are at least one-third at fault, and be prepared to defend on the basis set forth above.
DO NOT BE DISCOURAGED about that defense, but just be aware that it will be raised if your claim has any value. Without telling anyone about your visit, you and a friend should go into the business and spot the ramp area and take some photos. Show the eyelevel distractions of what would have caught your eye as you walked down the ramp.
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Gather Evidence: photos and witness statements
GET PHOTOS
Take your cell phone or small camera and take some photos of the area. GATHER ALL EVIDENCE NOW: DO IT QUICKLY AND QUIETLY, without notifying the businsee just yet. Leave that for later. http://www.settlementcentral.com/page0216.htm Evidence to Support Your Personal Injury Insurance Claim of Premises Liability, Slip and Fall.
GET WITNESS STATEMENTS: if you know of anyone who has experienced a slip and fall or even a near-accident on any similar ramp, then you can use their statement. Also, take a moment to get the statements of any witnesses down in writing. Prepare them that way for what they will be asked later on. Witness Statements Settle Personal Injury Insurance Claims http://www.settlementcentral.com/page0196.htm
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Be Prepared for the Kinds of Questions they Might Ask of you if you have not yet had a Deposition. An adjuster will try to record you. Of course we would like to avoid giving any recorded statement, so ask the questioner to send a list of questions since you do not think well in quick pressure situations. Fat chance she will do that, but you could try. At a minimum, BOTH you and your boyfriend need to be prepared for an interview.
We have not made up a list of questions to expect for the premises liability part of the free side of my website, so you will just have to use the following as a guide to the range of questions to expect. This is a list of questions insurance adjusters ask http://www.settlementcentral.com/page0207.htm injured claimants.
Here are two pages that tell what to do now if you have already given a recorded statement to the adjuster.
As for the rest of your journey, I do not have any idea where to send you for information regarding how to send a set of interrogatories and deposition, etc. That is where some cash for hourly advice might come in. Maybe a paralegal office has interrogatories. You need to ask about previous claims, costs of handrail, costs of non-skid, etc.
Your main goal is to get by a motion for summary judgment and hence to schedule and participate in a settlement conference. Maybe they will go to mediation with you. But a court supervised settlement conference could be pretty good inasmuch as it does not cost anything, and a judge will help to twist their arm to at least get some pressure to settle.
The key to getting to that point is to fight the motion for summary judgment. If you do get such a motion, RESPOND WITHIN THE TIME FRAME. You cannot just stand on your pleadings, but you must recite facts that will make out a prima facie case. Those facts will show a duty owed by the business, a breach of that duty, and your injury as a consequence of their breach. You do not have to go into detail on proof of damages for your summary judgment motion defense. Just show how they were negligent in allowing that substance to be on the ramp.
I trust that my time here has produced some information that has been of value to you, and thus I would respectfully request that you take the time to locate the FEEDBACK FORM on this site and leave some feedback for me.
Plaintiff in Pro per - secured pre trial conf date, and
trial date. Prepared/sent First Inter/First Amend Inter
Second Inter, Contention Inter.
Defense Counsel failed to provide docs req/things and such.
Now, filing "Motion to Compel."
Out of the blue - Defense Counsel (via telephone)
called and made an "Offer of Settlement," in the
amount of $20,000.00, however that figure is
unacceptable.
Amount sought - $86,200.00 and includes but is not
limited to:
All out of pocket past/present/future medical services
prescriptions/surgeries/therapy directly due to "incident"
(slip and fall).
Loss of Income/(4 years of part time work only)
Pain/Suffering/Stress/Loss of Enjoyment
(Unable to do even the simplest of household
chores - must have hired service now).
Defense Counsel says "IF you somehow can survive
Summary Judgement, I'LL bury you in motions! I'LL
file so many Motions, you won't have time to
properly respond..
Okay, so, they make offer out of the blue
and they make threats to deliberately
cause time delays, to me, they know
they are at fault and want to make
me just go away...
Based on all injuries (all permanent and debilitating per
6 specialists)life long pain/suffering, loss of income
loss of enjoyment, and having to hire people to do
basic chores for me now, I believe my requested
amount is realistic and very reasonable. ANY THOUGHTS
OR COMMENTS?
Thank you
Patty
Answer Hello again, Patty,
A lot of water under the bridge since we last spoke to each other. I hope you are doing better in your bodily healing by now. As for the questions you asked, I can help on some but unfortunately, we are prohibited from giving you any answer whatsoever as to whether to accept the attorney's offer or not. Plus, I would NEVER guess on how you might come out of a summary judgment motion. That would open me and this site up to a charge of malpractice if I guessed wrong.
I think you can see that neither 'da boss here or my website would want to be sued should my advice lead to a bad result. Hence, as for whether your demand is unreasonably high or just right, or whether you could survive summary judgment or not, I have no idea. Looking back on your previous question and this question, there is no indication whatsoever regarding the two major issues of slip/trip and fall injury claims: liability and damages.
So, I will just comment on how hard it is to prove those two elements in a jury case, and let you go from there. BUT FIRST, I am disturbed about the threat that the attorney made to you. It is borderline unethical conduct. So let's first explore the rules of professional conduct that every attorney in every state is bound to comply with. These are known as the Rules of Professional Conduct (RPC). What I would do right now is to send a letter in which you quote what threats he made to you and then tell him that you are planning to file a complaint with the State Bar Association if he should follow through with those threats UNLESS the discovery he seeks is legitimately authorized by the Rules of Civil Procedure.
FYI here is where you can access those rules. http://www.loc.gov/law/help/guide/states.html
Click on your state and then on the court system and look for rules. Some states put the RPC under "rules of general application". The following are pretty much uniform throughout the states, and they are referred to by RPC number.
RPC RULE 3.4; FAIRNESS TO OPPOSING PARTY AND COUNSEL
A lawyer shall not:
(d) in pretrial procedure, make a frivolous discovery request or fail to make reasonably diligent effort to comply with a legally proper discovery request by an opposing party; or
RPC RULE 4.4; RESPECT FOR RIGHTS OF THIRD PERSON
(a) In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.
Comment
[1] Responsibility to a client requires a lawyer to subordinate the
interests of others to those of the client, but that responsibility does
not imply that a lawyer may disregard the rights of third persons.
RPC RULE 4.1; TRUTHFULNESS IN STATEMENTS TO OTHERS
In the course of representing a client a lawyer shall not knowingly:
(a) make a false statement of material fact or law to a third person;
The key here is to hold out the threat of the Bar complaint while you try to work a settlement BEFORE the attorney starts blasting you with legal documents.
Toward that end, let’s take a look at three things that are a bit bothersome about your claim.
#1. LIABILITY. As I noted above liability is always the top issue. Can you prove the negligence of the property owner/occupier, AND, can you avoid being tagged yourself with a claim of negligence. Comparative negligence will knock down your own award by the percentage of your negligence (UNLESS you live in one of the four contributory negligence states, in which case your own negligence will PRECLUDE any action on your part).
There is a reason why attorneys always charge a higher percentage contingency fee to take on a premises liability case. That reason is: THEY ARE MORE DIFFICULT TO PROVE. The percentage of verdicts for the defense is a lot higher in premises liability cases than in auto accident cases. The fact that attorneys turned you down tells me that your case is not an easy one on liability and that the damages are not all that serious. Otherwise, someone would have offered to take on your claim.
#2. All of this talk about a long-term loss of income MUST be supported by medical evidence that concludes you will have such losses in the future. Speculation is not allowed in proving damages, and most of the lost wage claims for future months or years are based upon speculation, not firm medical opinions. CHECK OUT YOUR PROOF ON THIS ITEM.
#3. Figure out how flexible your doctors will be in going through the deposition/trial hassle. My bet is that like most other doctors, they are not thrilled to be doing this, even if it is your only support. Have you discussed this with your doctors? Plus, what is the cost for their testimony and are you prepared to pay them in cash upfront even if you lose? That is what we as attorneys have to do, and I doubt that they are going to just waltz into a jury trial with a pro se plaintiff.
With all of this in mind, I would work on the idea of a compromise. The offer is a pretty generous one for premises liability soft tissue injuries. What kind of injuries did you sustain, and how have you healed?
What percentage of permanent disability were you rated for? You will not be able to collect for future pain and suffering and future medical and future wage loss without some pretty firm documentation and objective evidence that you in fact have suffered some kind of permanent disability.
With all of that in mind, I would go back and add to the following letter some comments in support of your claim and make a good compromise and let it fly.
Here is a proposed letter for you to change any way you see fit.
I trust that my extra time here has produced some information that has been of value to you, and thus I would respectfully request that you take the time to locate the FEEDBACK FORM on this site and leave some feedback for me.
Notice of Complaint to (insert your state) State Bar Association
Dear Attorney Doofus,
I am writing to give you notice of my intention to file a complaint with the (insert name of his state) Bar Association. I am in contact with the Bar Association, and I have requested (or downloaded) a format to file the complaint.
The basis of my complaint is the following threat made by you during our phone conversation last week on August 13th.
You offered my $20,000 to settle my claim, and you threatened that if I did not accept your offer, then you would so burden me with discovery requests and many motions that I would not be able to respond. The threat being that, "IF you somehow can survive Summary Judgment, I'LL bury you in motions! I'll file so many motions, you won't have time to properly respond."
I believe that there are three violations of the Rules of Professional Conduct in your threat. First off, the threat is that you will "delay or burden" these proceedings and me with "frivolous discovery request" and motions. Second, these threatened legal actions "have no substantial purpose". Third, in this case there is no collection of "many motions" that you could bring, hence you have "knowingly (made) a false statement of … law to (an unrepresented) third person."
I am willing to bet that the (insert name of state) Bar Association will agree that your threats are a form of legal bullying which is proscribed by the following Rules of Professional Conduct:
RPC RULE 3.4; FAIRNESS TO OPPOSING PARTY AND COUNSEL
A lawyer shall not:
(d) in pretrial procedure, make a frivolous discovery request or fail to make reasonably diligent effort to comply with a legally proper discovery request by an opposing party; or
RPC RULE 4.4; RESPECT FOR RIGHTS OF THIRD PERSON
(a) In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.
Comment
[1] Responsibility to a client requires a lawyer to subordinate the interests of others to those of the client, but that responsibility does not imply that a lawyer may disregard the rights of third persons.
RPC RULE 4.1; TRUTHFULNESS IN STATEMENTS TO OTHERS
In the course of representing a client a lawyer shall not knowingly:
(a) make a false statement of material fact or law to a third person;
Furthermore, since you have not complied with my discovery requests, it appears you are also in violation of RPC 3.4 in failing to make a "reasonably diligent effort" to answer my discovery requests.
I have not yet filed this Bar complaint since I do not know if it is best to do that now or to wait until these proceedings are completed. Furthermore, if the results of further negotiations prove to be favorable and a fair and reasonable settlement is reached, the incentive for proceeding is diminished.
In part that is because I am NOT intimidated by your threats. I am prepared to prevail at a summary judgment motion inasmuch as I know that the affidavit of a third party will easily show the judge that there is a genuine issue of material fact. That standard I can fulfill, so if it will help to move this case toward a substantial increase in your offer, then by all means, bring on your motion.
As for the rest of your threat, I will wait to file this complaint with the (insert name of state) State Bar Association if you should follow through with those threats UNLESS the discovery you seek is legitimately authorized by the Rules of Civil Procedure, and is not designed to delay or burden these proceedings or me.
As for your offer of settlement, I told you at the time that it was inadequate to compensate me for my loses in a case where liability is not really a serious issue. My losses for both wage loss and general damages place the value of my claim easily above $60,000 total. But that is the reduced sum that I am now willing to settle for.
I will provide additional information shortly in support of that demand.
