Then there is a recent assault case at the Ankeny Wal-Mart. Police report two woman assaulted a female security guard at the Ankeny Walmart store at 1002 SE National Avenue about 4:00 pm, they don’t report on what day. What’s interesting is the surveillance store footage has a very clear picture of the two woman. See KCCI’s story, Do You Recognize These Women? Of course a photographs of customers is a long way from proving these are the same people who assaulted the guard, but it demonstrates that whenever there is the accusation of criminal activity the first line of offense and defense may be the surveillance cameras. 

Whether it’s a criminal case, a car accident or a slip-n-fall case, attorney’s need to visit the scene and look around for what may be the best witness money can find. The same can be said of those accused of a crime. Go to the scene and look around to see if there are surveillance cameras present. If so tell your lawyer and allow them to obtain the evidence. 

The challenge with video surveillance footage in a digital age will be quality of the images shown, the chain of custody and spoliation of evidence. Frost & Sullivan have an interesting white paper on the subject. See Frost & Sullivan, Using Video Surveillance As Evidence, Capturing And Storing The Best Video For Evidence. What I find interesting about this white paper is the expectation of protection argument being suggested and how that might impact retailers whose cameras provide poor quality making the evidence unreliable and therefore not admissible. Why have the camera and create an expectation of protection when what the camera produces is useless? Another reason why this subject is timely is the growing use of traffic ticket surveillance cameras in Cities across the United States. (The Problem With Legacy Surveillance Systems)

These cameras will provide evidence for many kinds of cases and I'm guessing there will be a push to make the video public with its posting on the Internet. 

Resources:

• Video Surveillance Evidence: Are Digital Copies Admissible, Pursuit Magazine
• Court Allows Defendant to Rely on Surveillance Evidence
• Use of Video Surveillance Evidence to Support Employee Discipline, Maiello Brungo & Maiello, Attorneys discussing collective bargaining agreements and how those agreements treat surveillance of employees. See Brewers & Maltsters, Local Union #6 et. al. vs Anheuser-Busch, Inc.,  2005 U.S. App. LEXIS 13292 (D.C. Cir., 2005)
• BC Injury Law And ICBC Claims Blog,
• The Documentalist, Admissability (sic) of Digital Data in the Court Room Outside of the US
• Prosecutor: Surveillance footage no help in solving case of heroin missing from evidence locker, Chicago Tribune, placement of the camera is important because in this case someone parked a food delivery truck so it blocked the lone surveillance camera’s view of the evidence locker allowing 3 kilos of heroin to be removed. 

Question: How is negligence determined in personal injury cases?  

Does negligence have to be established in order to collect damages in any personal injury case?

Statutes and Black Letter Law: The statutory law states that everyone must stop at a stop sign. If you run the stop sign you are negligent.

Common Law: If you behave in such a way as to increase the risk of injury to another knowing injury is likely then you can be found to have been negligent.

Contract: General contractors agree by way of a written agreement (the contract) to supervise the construction site and to make sure every subcontractor is abiding by OSHA's rules and regulations. If the GC knows a sub is not following OSHA rules/regs or fails to monitor whether the subs are adhering to OSHA rules they can be found to be negligent.

Criminal Law: Criminal law says if I walk up and punch you in the nose I'm guilty of assault and battery. If I walk up to one guy but hit another due to my being too drunk to make a straight punch, then I'm probably negligent. That's a standard that can be applied to civil law to find you acted negligently.

Professional Standards: Professionals are held to a standard created and recognized by other professionals and the associations that govern their conduct.

These are not all the ways standards are found in the civil law, but it will give you some idea of how standards are determined to exist and therefore formulate the basis for determining negligent conduct. 

Before talking to the insurance adjuster or defense attorney or the case mismanager remember this from I Claudius, don't touch the figs.

The premise held by most clients is that this system of law is fair. They'll say they want only to be treated fairly. When representing themselves they make the assumption that when defense lawyers talk to you they will be fair. Well I'm here to tell you, you had better not trust in being treated fairly. I mean exactly that and it has nothing to do with whether or not the defense lawyer or the insurance company is dishonest. They don’t have to be “honest” and they aren’t trying to be “fair”. Fact is they are hoping you aren’t smart enough to ask the right questions so they don’t have to not answer you. You think I’m kidding? Hell no. I’m not and I can prove I’m right. Here let me prove it to you.

Defense work has nothing to do with treating people fairly. If it did you could come up with the name of at least one defense lawyer who has said in the past, "I don't think you're asking for enough, can I pay you more?" Or, "Did you know you're entitled under the law to be paid more for your damages?” Go ahead find me one insurance company representative that has said that in the entire history of insurance. Go ahead, think real hard; I can wait, go ahead and think harder.

Umnnn dee dum, dee-dum... Have you remembered one? No? I didn't think so. I've not heard anything like that in 30 years.

Updated: This is too funny. I had a link to an insurance company's YouTube ad and they actually took it down so I could not tag them with how deceptive it is. Can you believe it? Yeah that's what they do. They advertise when they need more money, lie to you the premium payer and then when we lawyers point it out they take down what they said to erase the lie. That's reality folks, that's the insurance industry. 

In other words the defense lawyer's job is to treat you in a way to take advantage of your ignorance of the law as well as your mistakes. Frankly because this isn't about fairness their job is to treat you unfairly. Ethically they can, do and must treat you unfairly as most people think about the idea of fairness.

Fairness dictates honestly and with openness and candor. But ethics require the lawyer to maintain confidences provided by the client. I as your lawyer have to be candid and open with my client and if you're my client I act ethically. But the insurance company's lawyer isn't your lawyer and you the injured person aren't his client. So candor isn't going to be happening between the two of you. That's not the hand of a friend reaching out to shake your hand; the handshake being a sign of friendship, but this one is not one from a friend. Never confuse friendliness with friendship. The two are not one and the same.

The defense attorney or the insurance company representatives are like the slithering snake that delivers the poison being slipped into the wine goblet from which the injured drink.  Now you understand the legal concept of "fairness".

Are you invested in your case?

Record keeping for out-of-pocket expenses such as medical, Rx and other things if kept organized is a huge help. It's not unusual for clients to not maintain receipts and notes so they are able to provide medical expenses or records to show what wasn't covered by health insurance and what they've paid. When the client fails to keep good records it's almost impossible for the lawyer to reconstruct it. After all we aren't there with you.  Asking the lawyer to prove a dollar amount without the proper record keeping is like hoping a sailboat suddenly appears on the beach with your name on it. Like the sailboat, proof just doesn't instantaneously appear because you want it. Keep in mind the burden is on you to prove every element of the law that underpins your claim.

Lawyers have to prove relatedness, we can't go into trial or a hearing with a wish list simply hoping the fact finder will shut their eyes and believe us that the bill you paid is somehow related to treating the injury caused by the accident. Instead of asking the lawyer to pull a rabbit out of a hat, keep records that show the date of service, the name of the medical service provider, a description of the service provided and the amount you paid. And while you're at it keep track of your mileage both to and from every doctor's appointment.

Get a clue you need to keep better records and not just drop off a bunch of bills and scraps of paper that you throw onto the lawyer's desk.

Proper Client Medical Expense Record Keeping

Keep proper records that show the date of service, the name of the medical service provider, a description of the service provided and the amount charged and how much you've paid. And then attach a copy of the paperwork, the bill for service or the health insurance explanation of benefits (EOB).

Missed Work Days

Clients come to the end of the case and most don't seem to understand the lawyer didn't follow your every move. We don't live your life. Fact is we can't read minds. So if you're taking a day off due to an injury and have a doctor's excuse, then keep a record of all those days and every once in a while provide a copy to your lawyer. If the doctor excuses you from work, get it in writing and keep a copy for your lawyer. Hey thanks for the help!

Get involved because this is your case, stay invested in it because then you are a productive and valuable member of the trial team! And remember pestering the lawyer by constantly calling him doesn't mean you're invested. Quite the contrary; if the lawyer is on the phone with you it means he's not spending time doing legal work on the client cases he/she's accepted. So be a respectful client not a distraction.

Trial Practice - Mostly for non-lawyers

If a company providing services, in which those services are paid for and terms of service are placed in which the paying parties have signed an agreement to and said company does not deal with violators whom breech these terms of service where everyone is expected to adhere to in a timely fashion. Is said company in breach of contract due to negligence of protecting those very people who agreed to said company's contract?

While we are talking being a lawyer let’s expand this thought and talk about how lawyers make their cases interesting to those who will hear and decide it. Whether judge or jury the structure of your case should be like a mystery novel that leads the fact finder through a tale of suspense. The chapters of the case should lead the jury to be the ones who answer the final question. That final question is one of, Who done it? I call this the Who Done It Case Structure. Because the structure of the case can draw a jury in and keep them awake throughout the questioning of what could otherwise be some pretty boring testimony.

You can control the cadence of the case through use large pigeon-hole charts that get filled in as the trial progresses. What you’re creating is a demonstrative exhibit that organizes complex testimony in real-time right before they eyes of the judge and jury. It allows complex testimony to be assembled out of order but in chart form that is simple to refer to and to understand. Of course you, the lawyer, work out what structure it should be in long before the trial begins. As an example I used such a chart and trial theme in a defamation case against a news organization. The jury was told in the opening statement that we would reconstruct every position in the news room on the night before the defamatory article was published. Through a second information flow chart we would reconstruct how information known to the public is turned into printed news that lands on their doorstep in the morning.  Using this technique the order of witnesses made little difference; in fact I’m of the opinion that taking them out of order was more beneficial because it added to the suspense of the case. The one witness I identified as the offending reporter and editor was called towards the middle of the end of witnesses to allow the jury time to finger him and by the end of the case those witnesses testifying after he did confirmed the juries suspicions.

In the end the lawyer turns into a scribe and the jury the detectives. A $2.4 million verdict, including $1 million punitive was confirmation this technique works. Now don’t ask me what happened on appeal because my blood pressure is high enough as it is. Safe to say I can fully appreciate Lex Hawkins comment that he’s lost more money on appeal than most lawyers make in their careers.

Our point today is reading a John Grisham novel or a Steve Martini novel and then considering how you can turn your case into a “who-done-it” novella can pay off with the jury. I do have a confession though. Personally think Steve writes a better novel than does John, John writes for Hollywood, is predictable and Steve Martini for lawyers. Pick up a copy of Prime Witness, Compelling Evidence or Undue Influence and see if you agree with me.

Now back to the question, but first another cup of coffee.... onward we march.

Insurance Lullaby: Ka-ching, ka-ching, ka-ching! Insurance Executives: Thank you juries! We fooled you again. Remember we're not to blame, it's those trial lawyers! The ones trying to help you! Oops sorry I wasn't supposed to remind you. We're your good neighbor; you know the one's you're in good hands with! Smile! Bigger ka-ching!

Sorry, when it comes to the insurance industry I love being sarcastic. A lady wrote asking me if the insurance adjuster can unilaterally assign her 50% fault for the accident even though she was not ticketed and the other driver received a citation for failing to yield the right-of-way.  The adjuster believes a driver is automatically at fault, no matter what, and he deducts 50% from the property damage. My advice is pretty straightforward and simple. He's trying to delay paying you. Can you say ka-ching?

Today let's talk about the American styled insurance that protects the float by promoting delay. When you're in an accident you need to know how to protect your claim. Because if you don't protect your claim by keeping the facts straight, you allow the adjuster to promote the float through their delaying a fair resolution. You may be honest, but don't be dumb and allow the adjuster to maladjust your case.

A lady wrote to me asking whether the insurance adjuster can just deduct 50% for her fault even though she was not ticketed and the other driver received a citation for failing to yield the right-of-way.  My advice is to the point.

Dear ____________, Thanks for writing to me. If you weren't ticketed (given a citation) then I see no reason why you would be at fault. I'm going to guess that the insurance company’s adjuster is saying that you struck the trailer, meaning you did not have control of the intersection and therefore the other guy had the right-of-way. Your observation that he sped up trying to get control of the intersection becomes that much more important. Coming to an intersection you’re supposed to slow down and assess the traffic situation; not speed up and yell damn the torpedoes.

Everyone has the right to assume the other guy will obey the law.

Stick to your argument that he sped up. He did not have the right of way, he had a duty to yield; instead of slowing down at the intersection he sped up; he was ticketed; you had the right of way, you were not ticketed. You simply have to argue that you are free from fault.

If he won't pay you will have no choice but to hire a lawyer and sue. If your only claim is for property damage less than $5,000.00 then you can sue in small claims court. If the driver or passengers were hurt and sought medical attention then you probably should sue in district court. Have you already told him there was no personal injury? If so I would think the adjuster has accomplished at least half of his goal; to pay you as little as possible.

You may need to hire a lawyer. Good luck.

Steve Lombardi

 Now let's end today with a good laugh. Watch this video of a wedding couple gone wrong. It's a video created for an insurance company.

Related media coverage:

• Caught on Tape: Horses' Rampage at Parade Kills 1, Injures Others - Chicago Tribune
• July 4th Horse Stampede Saddens Iowa - Injury Board Blog Network: St. Cloud, MN

They will loudly proclaim that no one should sue! No way, no how; after all that would be un-American! Wouldn't it?

Well that’s exactly what I’m going to suggest. After all who considers going to a parade to get killed or maimed by a stampede of horses? Hell, no one does. To those who say horses do unexpected things I say, so what, who cares and what difference does it make that a horse acts without reason? The object that acted without control was entered into a parade and within a few feet of people sitting in lawn chairs. And, it was predictable.

Think this is the first time horses have stampeded the crowd at a parade?

Let’s have a parade of pit bulls and other vicious animals we consider part of the American culture. How about a herd of buffalo, wouldn’t they make a cool parade. One thousand stampeding buffalo trampling everything and everyone in sight along hometown America. Or how about sharpshooters with guns that can take out elephants traipsing along the parade route just in case an animal steps out of line; that would work.

You see it doesn’t matter what you and I think is American or un-American. When it’s you that gets trampled and then maimed or your spouse or child killed it’s all about doing what is right by them; and that is what an integral part of the American tapestry is.

Do otherwise and you might as well have your next parade in Red Square.

One killed, 23 injured after spooked horses trample crowd at Bellevue parade, July 4, 2010

UPDATE: One dies after horses' rampage at Iowa July 4 parade - A pair of runaway horses in harness crashed into a Fourth of July parade float and collapsed, ending a rampage that injured nearly two dozen people and killed one, people at the parade said Monday. July 5, 2010

Horses take off, injure 24 people at Bellevue parade - Two runaway horses raced along a Fourth of July parade route in a small Mississippi River town in eastern Iowa on Sunday, trampling children who were in the street picking up candy and injuring 24 people, police said.