Disclaimer: This information offered in this post is for offered for informational purposes only, and does not constitute legal advice nor does it create an attorney/client relationship. I am admitted in the state of North Carolina only and make no attempt to opine on matters of law that are not relevant to that state. This advice is based on general principles of law that may or may not relate to your specific situation. You should not rely on this advice alone and nothing in these communications creates an attorney client relationship. Seeking direct advice from an attorney in person may be advised.

Ah, this is the tricky part. Actually, all of it is tricky. I would urge you to reconsider handling this claim all alone; remember, you probably don’t do this for a living, and you’re going to be dealing with people who a) have every incentive to take advantage of you and not give you what you deserve, and b) are highly trained to get their way in these situations. Are you sure you’re willing to risk your claim by handling it on your own?

Of course if things go awry you can always try to hire an attorney later, but just remember that the more of this that gets done without an attorney, the more problems might be created for the attorney to overcome.

If you’re sure you want to handle this on your own, I believe this book may help you handle it correctly and avoid some pitfalls. So if you insist, let’s move forward:

Clearly, your main concern will be for the health and well-being of everyone involved in the accident. So of course you will want to talk to 911, EMS, and appropriate health care providers to make sure everyone’s (including your own) health care needs are being taken care of.

After an accident occurs it’s best to think of it as a criminal situation: Anything you say can and will be used against you.

After initial health care concerns are addressed you will be faced with two critical conversations: one with law enforcement and one with the auto insurance company for the at-fault driver.

In North Carolina we have a horrible relic of English Common Law known as Contributory Negligence. This doctrine holds that if you are found to have been even 1% at fault in the accident in which you were injured you can receive NO compensation from the person who is 99% at fault. In the vast majority of states a situation like that would get you 99% of your damages, but in our fine state that gets you a goose egg, nada, zip, zilch.

Now that you know that, your biggest hurdle will be avoiding making a statement that will compromise liability for your claim. In other words, don’t say ANYTHING that could possibly be construed as you accepting blame for the accident, or in any way implicating an action on your part as being even a minor cause of the accident. I tend to keep my clients from making any statements period, but that’s not always effective.

This can lead to a bit of a Catch 22: If you don’t give a statement to the cop, they may just take the other guy’s word for it and say it was your fault, which is hard to get past. But if you do give a statement, it might be used against you. Tricky. Same goes with the insurance company.

For law enforcement, I think it’s best to give your most clear and concise statement as to how the accident happened, just try to avoid saying your were at fault. For insurance company investigators, I would err on the side of not giving a statement. If you have an accident where you were hit from behind while standing still, then you can more easily argue that they should just accept liability and move on. But if it’s more complicated, then you might be in the Catch 22 where you could be darned either way. In that situation, if you don’t give a statement, they may just deny liability, meaning there will be no settlement discussions unless you file suit. So if you’re trying to avoid that, you may need to make a statement and do the best you can.

In a generic context, it’s virtually impossible for me to tell you what to say and what not to say. A lot of that will

depend on what happened in your accident. Now that you know what you are trying to avoid, here are a few points to consider:

• Always err on the side of truth. That will save you headaches in the long run.
• When answering questions, do your best to answer with yes or no, or as simply as possible.
• Don’t second guess yourself; stick to your guns and if they mis-characterize what you say, point it out to them.
• As long as it’s true, don’t state your speed of travel as even possibly being above the limit. In other words, if the speed limit was 55, don’t say you were going around 55 or 60 mph. You were going 55 on the dot. Or you weren’t. Whatever the case may be. But if you can avoid admitting to speeding, that’s good.
• Watch out for intersection accidents! Just because your light was green doesn’t mean you are clear to go; you still have a duty to look and make sure it’s safe to proceed. So if that’s your situation, make sure, as long as it’s true, you say that you looked both ways, and determined it was safe to proceed. If you saw the guy coming, perhaps it appeared that he was slowing and preparing to stop…

So hopefully you get past the statement hurdle, and your claim is accepted. So what’s next? Stay tuned for my next installment.

When you are in an auto accident and don’t immediately secure the representation of an attorney you can get yourself into deep trouble. Remember, this is a Zero Sum game; Insurance adjusters are trained to make things go well for their company, which means things go poorly for you.

Call an attorney as soon as practicable. If you don’t, watch out for these tactics…I’d be willing to bet you’ll see them all.

 

1. The Drive-By Settlement

You’re fresh out of the hospital, hopped up on Vicodin, and the smiley adjuster comes by and offers you a $500 check, and all you have to do is sign this paper! Sounds great, right? WRONG! Quick money sounds nice, but if you find out later that you had more serious injuries that weren’t readily apparent, you are stuck!

1. The Recorded Statement

The adjuster calls and asks how you are doing. You respond with what you always say to anyone, anytime you are asked this question: “I’m fine.” Guess what? You just told the adjuster you’re “fine”, which is the opposite of injured, in pain, suffering, etc. This is just a tiny example of the type of thing you can expect. Remember, it’s like the Miranda warning: Everything you say to the adjuster can and will be used against you. Don’t talk without an attorney!

1. Telling you that you don’t need a lawyer

This is my personal favorite and maybe theirs as well. Think about it: If you were a prize fighter, would you rather fight for money against someone who’s never fought before, or a seasoned fighter? The choice is obvious. That’s the situation you are in. If you don’t do this for a living you probably don’t know how to do it well. Personal injury attorneys know as much and often more than the adjusters, particularly about their home state, so it only makes sense to have a seasoned professional on your side.

1. “We’re on your side.”

B.S. Insurance companies are on their own side. Period. This is a Zero Sum game, and every dollar they avoid paying you is better for them. They do not have your interests in mind and will do everything they can get away with to make this work out better for them. In a liability state like North Carolina, the at-fault party’s insurance is where you seek redress. Many people think that they are paying premiums so the company owes them a fair settlement. WRONG! The insurance company has a duty to their own driver/insured, but not to you. Watch out.

1. Asking for a signed medical authorization

And you’ve just opened the door to your medical history. If you’ve ever made any noises to your doc that sound remotely like your current symptoms, they will use that against you to say that you were already hurt. Don’t do it!

1. Exploiting Financial Positions

Sometimes when you are injured you miss work and the bills start to pile up. The insurance company knows this and will exert extra pressure on you to get you to settle for less. They will also unnecessarily delay things for the same reason. This can be the most dangerous of their tactics, and it requires extreme patience and sometimes a great deal of cleverness to surpass. Seek help from an attorney.

1. Hiding the Ball

Insurance adjusters in North Carolina don’t have to disclose policy limits in most situations, but this information can be valuable in helping you determine what your options are. If you talk to an attorney, you can figure out how best to overcome this situation.

1. Contributory Negligence

Contributory negligence is a complete bar to recovery in North Carolina, so make sure you don’t let them trick you into saying you did anything wrong. Sometimes this isn’t an obvious statement, so you have to be extra careful. Once again, having an experienced attorney to help you may help you avoid this pitfall.

1. Surveillance

Insurance companies have been known to hire private investigators to follow you and film you in your daily activities. They can turn what appears to be a trivial action into something that makes your injuries seem fraudulent. Be wary.

1. Causation

Insurance companies know that you have the burden of proving that your injuries were caused by this accident. They are experts at pointing the finger at everything but their driver’s negligence to find the cause of your complaints. Particularly, they love to argue that if your vehicle wasn’t severely damaged then you can’t be severely injured. Be careful. This is possibly the most deadly tactic for your claim, and you could use some help to defeat it.

Adjusters are tricky, but they can be defeated. If you have an auto accident resulting in injury in North Carolina, call me and I’ll do what I can to help.

 

Jeffrey Allen Howard                                                     919-929-2992

 

I have practiced personal injury law in North Carolina since 2001. In that time I have worked on hundreds of cases involving automobiles and other automobiles, automobiles and pedestrians, and automobiles and bicycles, automobiles and horses; you name a combination of conveyances, and I have probably seen a case that dealt with that.

Automobile v. bicycle cases can be particularly challenging. Given the physics involved the injuries are often horrific. What’s more is that often the accidents result from one or more of the parties involved simply not knowing their rights and responsibilities while driving/riding.   Add that to the fact that insurance companies tend to use everything an injured person says against them to limit their recovery, and these cases can get ugly really quickly.

I believe that anyone who drives a car or rides a bike where cars are driven would benefit from a brief and simple explanation of North Carolina statutes regarding bicycle operation and safety on our roads. Ideally, this will help everyone avoid future accidents and keep all of us safer.   Of course, the reality is that accidents will still happen, and that being the case I hope that injured victims can use the information found herein to protect themselves and their claims against insurance company depredations, and maybe, just maybe, make that entire experience a little less painful.

I hope that everyone finds this information helpful, and maybe interesting. Read on!

 

1. Where to ride?

Where should you ride on the street? On the right side of the road, as far over to the right as possible. If there are two lanes, you have to be in the far right lane, and as close to the shoulder as is practical.

There are a few exceptions to this: If you are passing another vehicle, avoiding a dangerous obstruction, riding on a one way street, or preparing for a left turn, then you can deviate as necessary.   The rule of thumb should be ride on the right side of the road in the direction of traffic (not against traffic).

 

2. What signs do you have to heed while riding a bicycle on the road?

All of ‘em! Bicyclist when riding on the roads have the same rights AND responsibilities (we tend to remember the former, but forget the latter) while operating their conveyances on the road.

That means you have to stop at Stop Signs. You also have to stop at Stop Lights. Here’s a big one – just because you stop, doesn’t mean you can then go before the light turns green! You have to stop and remained stop until the light turns green – just like a car – when you stop at a Stop Light. The exceptions to this duty to remain stopped are when a) you can safely turn on red, and b) you are stopped at a flashing red light (as opposed to a steady red light).

With Green Lights, you once again have the same duties as a car driver. You can proceed, but you should still not assume you can proceed without keeping a proper lookout and making sure it’s safe. This can be a HUGE issue with civil claims, so keep a proper lookout and proceed with caution.

In summary, if there is a sign that drivers have to obey, bicyclists should obey it, too.

3. How to make turns safely and legally.

When making a right hand turn, you should be as far to the right in the road as possible. When making a left hand turn, you should use the far left lane for that direction of travel, and use the designated left turn lane if there is one.

Bicyclists must signal their turns and stops using hand signals (you know what these are, and if you don’t, you can see how they are described in the statutes at Chapter 20-154(b)) or mechanical signals if they have them. This should be done at least 100 feet before the turn is made. Bicyclists must also give clearly audible signals to any pedestrian that might be affected by the desired action.

Essentially, if you want to ride on the roads, you must follow the same rules that drivers do. At an intersection not controlled by a light you should yield to the vehicle on the right. When making a left turn yield to vehicles coming in the opposite direction.

 

4. Where can you race bicycles legally?

Where is it legal to race? You shouldn’t! NC law prohibits bicycle races unless they are organized under the law. Here is a website you can look at if you are interested in setting up a race, but otherwise, don’t do it! http://www.ncdot.org/transit/bicycle/events/events_racing.html

 

5. Safety Gear Requirements

What kind of safety gear must you use when riding a bike on the road?   All riders under 16 are required to wear an approved helmet secured with a strap (and all riders, regardless of age, are urged to do the same). See the statutes for what “approved” means. You are probably OK if you are satisfied with the certifications on the helmet packaging. Check the statute if you are in doubt!

Passengers under 40 inches in height or 40 pounds in weight must be secured in a separate seat where they are upright. Passengers under 16 must be seated on a saddle at minimum.

…and just because mommy said you could doesn’t mean you aren’t breaking the law if you’re underage and not abiding by the rules! Follow ‘em! You’ll be glad you did.

6. Can you be convicted of Reckless Driving while riding a bicycle?

Yes! And that’s a big deal. That’s a misdemeanor that will go on your record, and it could open the door to punitive damages in a civil claim if you plead guilty to that charge and as a result of that behavior cause injury to others.

7. Bicycles and Pedestrians

Once again, think like a driver. You must yield to pedestrians just as drivers must. Pedestrians should only be crossing at marked crosswalks, or at unmarked ones at intersections not controlled by lights. But essentially, if the pedestrian is in the road, you should attempt to yield.

8. What about passing vehicles?

If a car is stopped to allow a pedestrian to cross you may not pass that vehicle! So anytime you approach a stopped vehicle, you should stop and check it’s legal to pass.

If you want to pass a vehicle, you should do so on the left at least two feet away from the vehicle, unless there is too much traffic (or other danger) to do so.   Bicyclists are subject to the same rules as motorists passing other vehicles, and should not pass at blocked rail road crossings or where there is signage/lines that indicate no passing allowed.

And if a vehicle is attempting to pass you it must be allowed. Motorists are supposed to give you an audible signal, but once you are aware of the passing attempt, you should make it as safe and easy for the motorist as possible.

9. Crashes

In the event of a crash where motorists and/or bicyclists are aware that damage has been done to property or injuries sustained, law enforcement should be alerted and all parties to the accident should remain on the scene.

10. What’s the best attitude I can have while riding?

Always assume the other guy doesn’t know what he’s doing and doesn’t respect your right of way. It’s better to be humble and safe, than legally right and dead.

 

 

Statutes referenced for this writing:

§20-129. Required lighting equipment of vehicles.

§20-138.1. Impaired driving.

§20-140. Reckless driving.

§20-142.1. Obedience to railroad signal.

§20-146. Drive on right side of highway; exceptions.

§20-149. Overtaking a vehicle.

§20-150. Limitations on privilege of overtaking and passing.

§20-150.1. When passing on the right is permitted.

§20-152. Following too closely.

§20-153. Turning at intersections.

§20-154. Signals on starting, stopping or turning.

§20-155. Right-of-way.

§20-156. Exceptions to the right-of-way rule.

§20-158. Vehicle control signs and signals.

§20-161. Stopping on highway prohibited; warning

signals; removal of vehicles from public highway.

§20-162. Parking in front of private driveway, fire hydrant, fire station, intersection of curb lines or fire lane.

§20-165.1. One-way traffic.

§20-171.6. “Child Bicycle Safety Act”.

§20-171.7. Legislative findings and purpose.

§20-171.8. Definitions.

§20-171.9. Requirements for helmet and restraining seat use.

§20-173. Pedestrians’ right-of-way at crosswalks.

§20-174. Crossing at other than crosswalks; walking along a highway.

Jeffrey Allen Howard, Attorney at Law, PLLC                                                       919-929-2992

 

If you’ve read any of my blog posts, or talked to me about a legal matter before, you know that I like to give long answers and short answers to questions; I’m a firm believer that things are rarely as simple as we’d like them to be.

Having said that, let me answer this question: What does a personal injury case manager do?

First, the long answer (you can scroll down for the short answer if you want):

If you’ve ever had a car accident and hired an attorney for your injury claim there’s a good chance you went with a big firm that you saw on television. When you did, you hired an attorney, but do you remember talking to that attorney after you hired him? If your case settled I would be willing to bet you never talked to that attorney again. In fact, I would be willing to bet that someone with the title of “case manager” worked on your file – reading and summarizing your medical records and compiling your demand brochure – and maybe even negotiated the case with the adjuster. So not only did your attorney not talk to you, he didn’t even talk to the adjuster. Attorneys are trained advocates and negotiators. But what have case managers learned in that field? What have they learned in any field, for that matter?

That “case manager” did not got to case management school. You know how I know that? Because there is no such thing. The dirty secret of many big personal injury law firms is that the vast majority of work is done by case managers with no educational training or legal background. These folk essentially did all the work that you assumed your attorney would be doing. Who are these people? What training do they have? In what way are they more qualified to handle a personal injury claim than you are?

If you ask me those questions about myself, I can answer them all quickly and easily. If you asked the other attorney with the case managers all over his files, he could answer them about himself as well, but if a case manager is working the files, what do his answers matter?

Wouldn’t you rather have the attorney you have hired and entrusted with your very valuable legal claim work on that claim personally, and not pass it off on someone with no formal training?

If you hire me, you get me. I work your case from the beginning of our relationship to the end. Granted, my assistant might type up a few letters for me, but I’m the one researching your case, reading and summarizing your medical records, compiling your demand brochure, writing your demand letter, and negotiating your claim.

SHORT ANSWER: Personal injury case managers do lots of the work you wish your attorney would do so that he or she would be more intimately familiar with your case.

If you’re thinking about hiring an attorney for an auto accident case, find out if there’s a case manager working on your file. If so, there’s a good chance that the case manager will know more about your case than your attorney, so why are you paying the attorney?

Hire an attorney who works his own files for his clients.

Call me: 919-929-2992.

Some of my personal injury clients (and potential clients), have asked me, “Why is it taking so long to settle my claim?”

There’s a short answer, and there’s a long answer. As an attorney, I am compelled to give you the long answer. But for those more inclined toward the short one, here it is:

Because things aren’t as simple as you may think.

The longer answer, by definition, takes a bit.

Let’s start by asking a question: What do you think your claim is worth? The answer is that you simply may not know yet.

You should look at your case on a time continuum, with the start being the day of the accident and the end being sometime later. The nearer in time you are to the date of injury, the more difficult it is to value your claim. Why is that? Well, claims are valued based on many factors: medical expenses, lost wages, pain and suffering are the main ones. The day after your accident, do you know what all of those totals are? How about the week after? Are you still treating three months later? Do you know all of those totals now? What about your pain and suffering? How do we value that until we know how long you suffered, or how badly?

That point is that injury claims are difficult to value until the injured party reaches maximum medical improvement. Everyone can understand that there is a difference in values of cases where one person makes a full recovery while another only makes a 50% recovery. So until I know where the victim is going to land in their recovery, I can’t accurately value the claim. And if I can’t value it, it probably doesn’t make sense to try to settle it yet. What’s the rush?

Of course, there are exceptions, and sometimes it does make sense to settle a case sooner rather than later. But that’s not always the case.

And even when we can get a good idea as to what the case should be worth, that doesn’t mean we are going to be able to get that quickly through negotiation. Adjusters often have 200 plus files at a time, and they have to monitor them all. They have to read and audit all of your medical bills, records, and other claims documentation. That simply takes time. This is not to mention that the old “desk authority” of adjusters (how much money they could personally get away with offering without question) has drastically lowered over the past 15 years, so adjusters often have to get supervisor’s authorization to offer you a meaningful settlement. It’s just a process.

 

And if negotiations fail that means we may have to litigate the claim. Generally speaking, claims that are litigated take about one year from filing to resolve, give or take a few months.

Yes, I know! This seems like a long time to get anything done. But remember the old quip, “Do you want it done quickly or do you want it done right?” While I’m not sure about the grammar, the substance of that holds true here. Rushing claims doesn’t make any sense. Preparing a sturdy case with all of our “I”s dotted and “T”s crossed increases our likelihood of success.

This is a great point to remember: The more patient you are, the more likely you are to get a favorable outcome.

I posted this in a previous blog entry, but it’s worth repeating: In the town of Poona in what we now call India in the year 1205 a man named Maloji Thorat filed a lawsuit in an effort to protect his rights regarding presiding over certain religious functions. It wasn’t until 1966 that the courts made a decision on that, and awarded his descendant Balasaheb Patloji Thorat a favorable decision.

My cases might take a while, but they don’t take 751 years. So look on the bright side! And if you are interested in talking to an attorney about an injury claim, call me at 919-929-2992.

People often ask me what is my “speciality” within the practice of law. As with virtually everything in the law, the answer is less than simple.

First, the Bar is clear about when lawyers can use the term “specialist.” There are certain areas of the law that the Bar regulates and administers with regards to these specialties. Lawyers who want to call themselves “specialists” within these fields have to take and pass a certain exam to use that moniker. Those fields are set out below:

• Real Property Law – Section .2100
• Bankruptcy Law – Section .2200
  (Click Here for information regarding the bankruptcy specialization exams and the alliance between the NC Board and the American Board of Certification.)
• Estate Planning and Probate Law – Section .2300
• Family Law – Section .2400
• Criminal Law (including Juvenile Delinquency) – Section .2500
• Immigration Law – Section .2600
• Workers’ Compensation Law – Section .2700
• Social Security Disability Law – Section .2800
• Elder Law – Section .2900
  (Click Here for information regarding the elder law specialization exams and the alliance between the NC Board and the National Elder Law Foundation)
• Appellate Practice – Section .3000
• Trademark Law – Section .3100

If a lawyer has not passed the specialist exam in one of those fields, he cannot say he is a specialist or specializes in a certain field.

So back to the question, what is Jeff’s “specialty?” Let’s phrase it a different way: What practice areas does he focus on? That’s easier to answer…

My practice focuses on three areas, primarily: personal injury, workers’ compensation, and traffic tickets. The first two I tend to lump together as “injury law.”

You will note there is not specialist exam for “injury law” so I can’t say I specialize in it. There is an exam for worker’s compensation; I practice worker’s comp law, but I have not made the effort to take that exam. Why? I just haven’t. I am too busy working for my clients. I would rather spend my time working on my clients’ cases rather than studying for and taking an exam so I can add more titles on my website.

So back to the answer: I handle injury law cases – personal injury and workers’ compensation claims – as well as traffic tickets. That makes me an injury attorney.  Am I a specialist? The Bar says I can’t say that. But is my practice focused mostly on injury law? You betcha. I am an injury attorney because I handle injury law cases almost exclusively. So if you have an injury, no matter how it happened, and you wonder if you have a claim, call me. Maybe I can help.

Call me: 919-929-2992.