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Newswire - Most recent postsLegal Tips/Blog
DOG BITE LAW – 7/1/2010 When are you liable for money damages if your dog bites another person? You’ve probably heard about a dog getting “one free bite” before its owner is liable. Here’s a legal tip – don’t count on it. Here are the situations where you may be liable for your dog’s actions:
It’s best to tell your dog to chill out and not to bite anyone, including the mailman. MEDICAL LIABILITY CASES DROP IN PENNSYLVANIA – 5/19/2010 Medical liability lawsuit filings in Pennsylvania dropped for the fifth straight year, according to state Supreme Court statistics released in April. New claims fell 4%, from 1,602 in 2008 to 1,533 in 2009. The 2009 numbers marked a 47% decline from the 2,904 filings recorded in 2002, when lawmakers passed a series of tort reform measures. In particular, the high court attributed the improvements to two key judicial reforms that required lawyers to include a certificate of merit with each case, and to file suit in the county where the alleged incident occurred to prevent what is known as venue shopping. The Pennsylvania Medical Society backed the changes. THERE AIN’T NO SUCH THING AS A GOOD LAWSUIT UNLESS IT’S YOUR OWN – 5/12/2010 For an informative and revealing commentary on the public’s love-hate relationship with lawyers, read Susan Estrich’s column which appeared in the Chester County Daily Local News on May 8, 2010. “As a lawyer, I’m familiar with this particular phenomenon. Nobody likes lawyers (well, almost nobody) until they need one. But when you need a lawyer, everyone wants the best — the toughest, the most aggressive. People will swear up and down about outrageous recoveries and ridiculous awards, until they’re injured and you explain to them that there are caps on their awards and limits on pain and suffering. Then they are outraged at the injustice.” http://www.dailylocal.com/articles/2010/05/08/opinion/srv0000008210129.txt CELLPHONE USE WHILE DRIVING CAN LEAD TO PUNITIVE DAMAGES – 5/7/2010 We all know that cell phones and driving don’t mix. Lawsuits have risen dramatically due to cell phone related car accidents. Not only could serious injury or death result from talking or texting, but your automobile liability policy, no matter how good, may not be enough to satisfy a claim against you. That is because our courts are now ruling that such conduct is so outrageous that punitive damages can be awarded against the driver. Punitive damages are designed to punish and are not covered by your insurance. The money would come directly from your bank account, your house or other assets. ARGUING DAMAGES BEFORE A JURY – 5/7/2010 On April 4, 2010, the Pennsylvania House of Representatives passed HB2246. A Bill trial lawyers have been fighting for for many years. This bill, if passed by the Senate and signed by the Governor, will enable lawyers to actually argue in automobile accident cases, a specific dollar amount to a jury. Many people already think that Pennsylvania lawyers do this. They do not. Lawyers have never been allowed to argue a specific dollar amount to a jury. Pennsylvania lawyers are only permitted to request a jury to provide fair and full compensation for their client’s injuries. It is up to the jury to decide the amount. This is not to say that jurors have to follow the recommendation of counsel under this proposed new law but it does give jurors a reference point from which to work. You might think that lawyers would automatically ask for outrageous sums. It is, however, just the opposite. Lawyers would never be crazy enough to argue for a large damage award when injuries to the client would not warrant such an award. Jurors are not dumb and they would punish the lawyer and his or her client for arguing for an unreasonable recovery. Experienced trial lawyers here in Chester County would be very careful about suggesting a dollar amount and would not attempt to overreach for that very reason. All in all, I as well as the trial lawyers, believe this is a win-win for the justice system. It provides the jury with a basis or starting point on which to base its deliberations and gives the lawyer and the client the ability to provide their view as to value. Peter J. Hart MOVE OVER TOYOTA – 4/22/2010 The world’s cheapest car is made by Tata Motors, an Indian car manufacturer. The Tata Nano costs $2,500. Tata Motors hopes to sell the car worldwide, and have it in American showrooms in a few years. While it is cheap to buy and gets up to 55 mpg., there is one small glitch. A few weeks ago, one of the pint-sized autos was being driven home from the showroom by an Indian family. After being driven only a few miles, the car burst into flames. The family managed to escape with their lives. Tata Motors offered the family a replacement vehicle (no thanks), or a refund. If this happened in America, you better believe there’d be a lawsuit. CAR ACCIDENTS ARE ON THE DECLINE – 4/12/2010 A recent study showed that the number of car accidents resulting in injuries or fatalities in the United States has declined over the past five years. We at Karp & Hart have noticed a decline in car accidents resulting in injuries or fatalities in Chester County also. We believe there are a number of reasons: 1. Cars are built better – side airbags and better frontal safety systems are shielding passengers from greater harm. 2. Stricter drunk driving laws – there are less drunk driving fatalities in Chester County. Tougher sentences for drunk driving and more road blocks are making the roads safer. 3. Decline in young drivers – because of the economy, parents are having difficulty paying for car insurance for their teenage drivers. Even though accident claims are down, there are still far too many car accidents caused by inattentive drivers who drive while using cell phones, texting, or eating Big Macs. If you, a family member or friend are a victim of one of these drivers, give us a call. DOES ASSUMPTION OF RISK ALWAYS APPLY TO SPORTS? – 3/4/2010 If you are injured at a sporting event, are you entitled to recover for your injuries? Does it matter whether you are a participant or a spectator? In Pennsylvania, it is generally held that those who attend or participate in a sporting event assume the risk of injury in their respective roles. For example, if you are a spectator and a hockey puck flies into the stands and knocks your tooth out, that’s just bad luck. The same would, of course, hold true for a foul ball at a baseball game. This is because the assumption of risk doctrine applies to all risks by participants or spectators that are “inherent” in the sport or “common, frequent and expected in the game.” Participants assume much more of a risk of injury because they are in the game. Spectators are at much less risk but still assume the risk of common, frequent or expected accidents that could befall them as a spectator. What if you were skiing with a group of friends and came to a steep icy hill with obscured visibility. What if you all agree that you will go down first to scout out the terrain and to wave the others down once it is determined that there are no other skiers in the area and it was safe to race. However, while you are on the scouting mission, one of your comrades starts down the hill and runs smack into you? Is this type of carelessness “inherent, common, frequent or expected” in the sport of skiing? I’m sure your opinion depends on whether you are the spotter or the racer. Keep in mind, you were a participant not a bystander behind a fence. Pennsylvania courts went down this slippery slope (poor pun intended) in a case recently dealing with golf. It concluded that even if you are a participant, there is still a duty owed by the other participants to refrain from certain careless actions. In this case, one of the foursome (with the others’ consent), drove out to the blind spot to make sure the golfers in front were clear before his crew teed off. However, on his way back to tell his foursome it was okay, he was struck in the face by his partner who decided to tee off early. The court held that this could certainly fall outside the assumption of risk doctrine since his now ex-friend’s conduct was not common, frequent or expected in the sport of golfing. What do you think? Peter J. Hart, Esquire BEWARE OF INSURANCE COMPANY TACTICS – 2/26/2010 When you’re in a car accident, you may receive a call or visit from the insurance company who represents the driver that caused the accident. They will tell you that they want to help you and offer you a sum of money on the spot. DON’T DO IT!!! You’re not in good hands with Allstate and State Farm is not your good neighbor. The reason that the insurance companies contact you is that they do not want you to get a lawyer. A lawyer would look out for your interests. Injuries take time to heal and no attorney practicing personal injury law would ever evaluate the value of your case until you have completed most, if not, all of your medical treatment and your doctors have clearly assessed your injuries. The insurance company wants to make a quick cash settlement before the true value of your case can be determined. At Karp & Hart, we have had many clients come to see us who have already been contacted by the insurance company. In every case, we have been able to recover much more money than the insurance companies have initially offered. In some cases, the extent of our client’s injuries cannot be determined for many months, after which they undergo operations and long periods of recovery. If those clients had settled with the insurance company in the early stages, they would have received pennies on the dollar for their injuries. Once again, if the other party’s insurance company calls you after the accident, simply tell them that you are going to retain an attorney and that the attorney will contact them. Peter J. Hart, Esquire HOW ATTORNEYS CHARGE FOR LEGAL SERVICES – 2/22/2010 In Pennsylvania attorneys by and large are allowed to charge whatever fee they want for their services. Attorneys earn their living by spending valuable time giving clients legal advice and direction. There are many different ways to charge for those services. For example, if an attorney is undertaking a task which he or she knows will take a fixed amount of time, i.e. is a one time deal such as preparation of a Will, then the client will be charged a flat fee for that service. If, due to the nature of the legal issue, an attorney cannot tell how long the job will take, he or she will usually charge an hourly rate for the actual time spent working on a client’s case. In all legal matters an attorney is obligated under Pennsylvania law to provide you with a fee agreement letter outlining the general nature of the services to be provided; the rate to be charged and other relevant information that deals with the issue at hand. Attorneys may legitimately ask for a retainer which is a sum of money to be placed in a separate client escrow account which will then be billed against by the attorney periodically as work progresses. The retainer over time will decrease as the attorney draws it down for work performed. The attorney may then require that an additional retainer be paid into the escrow fund to continue. Any unused monies left in the escrow account after the case is over are to be returned to the client. Attorneys are required to send a periodic statement outlining the date of each task conducted on the case, the nature of the work performed and the amount of time spent on that task. These bills are usually prepared monthly. An attorney can also charge a non-refundable retainer for services. For example, if an attorney happens to be one of the best criminal attorneys in the area and you or a family member has a very serious criminal charge against you, then you may very well feel it is necessary, if requested by the attorney, to pay a retainer which may not be refundable. In other words, the attorney could tell you that he or she is charging X amount of dollars for the case whether he or she is able to resolve the case at the preliminary hearing (in the very beginning) or must take the case through trial. It is all a matter of negotiation between you and your attorney. Finally, attorneys also can charge a “contingency fee” for cases. This is most often done in the area of law that we at Karp and Hart practice – personal injury and medical malpractice. Most people who are injured as a result of the carelessness of another cannot afford to pay an attorney either up front or even over time. This is especially true when the person is out of work due to injury. Contingency fees run anywhere between 25% to 40% depending on the difficulty of the case and the likelihood of a recovery. At Karp and Hart for example, we advance the costs of the litigation which can run anywhere from a few thousand dollars to $50/60,000 or more in large cases. This, of course, depends on the type of case. Also since we are working on contingency basis, we do not charge an hourly rate for our time. We are only compensated if we are able to win the case. This is why we, as personal injury attorneys, have to be very careful about the type of cases we select. Because, if the case is lost (and some of the best cases in the world can be lost), then we will not only lose hundreds of hours of valuable time but will also lose the monies we spent to prepare the case. When consulting with an attorney do not be afraid to ask the all important question about charges. However, don’t be mislead by believing that because an attorney charges less, that he or she is necessarily better. That could not be further from the truth. Peter J. Hart, Esquire HIT AND RUN DRIVERS – 2/18/2010 A recent Philadelphia Inquirer article reported that nationally there are roughly 38,000 hit and run accidents per year and the number of fatal hit and runs involving a car versus a pedestrian ranged from 917 to 1,112 since 2000. In Pennsylvania alone there have been between 21 and 34 fatal car – versus – pedestrian cases annually in Pennsylvania. You should be aware that if you are involved in an automobile accident resulting in injury, death or property damage, that you must stop as close to the accident scene as possible and provide your name, address and auto registration number as well as your driver’s license. You are also required to render reasonable assistance to any injured person including the making of arrangements for the carrying of the injured person to a physician, surgeon or hospital for medical treatment. It’s the law. I have several cases where I represent people who have been injured by hit and run drivers. More often than not they are not apprehended and their identities ever discovered. If our clients have followed our advice posted here on our website; on our radio show or in our office, then they would be fully protected with coverage equaling the amount of their liability coverage and stacked for the number of vehicles in their family. Persons injured by hit and run or “phantom” drivers are covered under the uninsured motorist portion of their policy. If they do not have it, then they are totally out of luck. Peter J. Hart, Esquire We urge you to please make sure that you have uninsured motorist coverage in order to protect you and your family members. PRESCRIPTION ERRORS CAN BE A RECIPE FOR DISASTER – 2/12/2010 I have been asked by many of our radio listeners what the most frequent type of medical error occurs in healthcare today. The answer is easy – medication errors. Errors occur at the pharmacy; in the hospital and at doctors’ offices. Studies show that drug errors take place at major hospitals several times each hour. While some errors may result in no harm to the patient, others may prove deadly. That’s what happened to a lady whose family I represented several years ago. Mrs. Johnson was hospitalized for pneumonia. She didn’t have the luxury of being in a private room. In fact, she shared a room with three other patients. One afternoon, the nurse came in with penicillin to dispense to one of the patients. For some reason, when the nurse called out the patient’s name, Mrs. Johnson raised her hand. The problem was that Mrs. Johnson was allergic to penicillin. In fact, it was written in her chart. The nurse being in a hurry gave the penicillin to Mrs. Johnson without checking her chart. Mrs. Johnson went into shock and died later that evening. It was a clear case of malpractice on the part of the nurse for giving the drug to the wrong patient. I settled the case and Mrs. Johnson’s family was provided for. But how could this tragedy have been averted? What can you do if you’re a patient in a hospital to avert taking the wrong medication? Make sure you ask the nurse these questions each time you are given any type of medication: 1. Is the medication for me? These questions can rectify any errors made by the pharmacy as well as the nurse – they can save your life. Stephen M. Karp, Esquire I have recently been asked to review a case where a hospital attendant who was in a hurry, incorrectly wrote the dosage of a medication for a patient at 12.5 mg. per day. Unfortunately, the decimal point was two digits too far to the right. He should have been receiving .125 mg. per day – 100 times less! My client remained on this medication for six days before another nurse, recognizing that the patient had been in a semi-comatose state for days, reviewed the chart and recognized the error. My client and his family have sustained serious injury as a result. AUTO INSURANCE – 2/9/2010 Under Pennsylvania law, you have an option to purchase underinsured (UIM) and uninsured (UM) car insurance for your own protection. This coverage is there to pay you back if the person who injures you is uninsured or does not have enough insurance to pay for your injuries. You can also purchase “stacked” coverage which applies to your UIM and UM coverage. Therefore, if you have stacked coverage and you own two automobiles, you can double your UIM/UM coverage. Three cars –triple it, etc. DO NOT WAIVE OR REDUCE EITHER COVERAGE! Purchase the maximum allowed. The increase in premium is small but if you are in an accident, the funds are there to protect you. Peter J. Hart, Esquire
CAR ACCIDENTS RESULTING FROM SERVING ALCOHOL – AT YOUR HOME – 2/2/2010 I received a call the other day from an anxious client whose husband was getting ready to throw a March madness basketball party at their house where he would be serving up beer, wine and other alcoholic beverages to his buddies. She wanted to know if she and her husband would be liable if one of their guests injured himself or somebody else while driving home. She wanted to know if she and her husband could protect themselves by charging money for the booze. I realized this was an important question, she was serious and that many of our listeners as well as a lot of lawyers don’t know the answers to these questions. Would they be liable if a guest ran someone over? Was charging money for the booze a good way to protect themselves? If they charged for the booze, should they also charge for the guacamole dip? Generally under Pennsylvania law, a social host, such as my clients’ husband, is not responsible for any injuries to the guest or third persons no matter how much alcohol he let them drink. However, if he decided to charge money, not only would he be unpopular with his guests, but he very well could also expose himself and his wife to liability, just the same as a Tavern owner. You see, Tavern owners are liable if they serve a patron alcohol after recognizing that the customer is visibly intoxicated. Once you start charging money, you are acting more like a liquor establishment than a private person. Another exception would be if they served alcohol to someone under 21. Then they would automatically be liable for any injuries caused by the minor. So, be wise – practice moderation. Peter J. Hart, Esquire SKI AREA PERSONAL INJURY LIABILITY – 2/1/2010 In order to expand business and to encourage more family participation, ski areas in Pennsylvania have recently installed snow tubing hills. Usually the tickets for snow tubing are in addition to ski tickets, but they also contain the same disclaimer language providing immunity to the ski area for skiers and boarders as discussed in earlier articles. Again, however, each individual disclaimer must be reviewed with a fine tooth comb in order to determine whether or not it is applicable to the particular situation. Take for example, the case of an injury to a customer at a popular ski resort which occurred several years ago. The ski resort offered two snow tubing options. In the first option, customers had relatively uncontrolled access to slopes that all ended in a single common area at the base of the mountain. In other words it was a free for all. But, the second option gave access to the slopes which were controlled by an attendant whose job it was to ensure that the customer could begin down the slope only after a previous customer had exited the segregated receiving area at the base of the slope. This option was known as the “family option” and specifically encouraged children to participate. Their advertising bragged that it was a safe family option for kids of all ages.
As luck would have it, a young person sustained serious injury when she was struck from behind by a snow tuber who had been released by the attendant too early. Camelback fought the injured girl by claiming that its Release protected them even if such injuries were the result of “negligence or other improper conduct” on the part of the snow tubing facility. The Pennsylvania Appellate Court held that since Camelback created and marketed family slopes as areas where this type of danger would be eliminated and further that since the danger was created not from a passive act or omission but from a volitional act of one of the company employees, it was considered to be “reckless conduct” and a signed Release or ticket disclaimer did not prevent recovery since it only provided immunity for “negligence.” I guess if any lesson is to be learned here, it is that the remedy may be in the small print after all. That’s why it is important to look at these types of cases carefully before accepting the argument that you signed a release and are therefore on your own. Peter J. Hart, Esquire COMPARISON OF PENNSYLVANIA MEDICAL MALPRACTICE CLAIMS vs. SERIOUS MEDICAL ERRORS – 1/28/2010 One of the finest legal organizations that we as Pennsylvania trial lawyers belong to is the Pennsylvania Association for Justice (PAJ). This organization is restricted to only litigation attorneys devoted to helping those who are injured due to other’s negligence and to help the consumer get a fair shake in Pennsylvania. The following is a short article from PAJ dealing with the number of medical malpractice claims filed versus the number of serious medical errors which occur here in Pennsylvania. The source of the information comes directly from the Pennsylvania Patient Safety Authority and the Pennsylvania Supreme Court. Although the primary mandate of medical care since Hippocrates is to “first, do no harm” recent years have seen a prioritization of “tort reform” over all other issues affecting healthcare. At least twenty-seven states have now adopted some form of tort reform, which focuses on restricting the rights of victims rather than on safety or transparency as to the nature and amount of preventable errors. However, no state that has enacted tort reform has shown any reduction in healthcare costs, nor has any tort reform state reported a reduction in the incidence of malpractice. Since Pennsylvania enacted tort reform several years ago, there has been a dramatic reduction in the number of malpractice lawsuits filed. For example, since 2002 medical malpractice claims have fallen from approximately 27,000 lawsuits per year to approximately 1,600. However, from 2005 through 2008 (since Pennsylvania began requiring medical errors to be reported by healthcare providers), the “serious error” rate has ranged from approximately 7,000 in 2005; 7,000 in 2006; a little over 7,000 in 2007 and over 8,000 in 2008. Although the number of lawsuits have significantly dropped, the number of medical errors reported from healthcare providers has risen dramatically. Moreover, the number of serious errors to be reported will be increasing in the future when nursing homes are brought under the reporting requirements of the Safety Authority. Think about this, Who is getting the bad deal? The medical profession of the injured consumer? TRIAL OF A CASE FROM JURY SELECTION TO VERDICT – 1/25/2010 TRIAL PREPARATION: Once a lawsuit has been filed against another party, open discovery is conducted. Usually all parties submit and answer Interrogatories (written questions) and Requests for the Production of Documents which allow the parties to learn about their adversary’s case. In this process the parties are asked to put in writing their theory or defense and to list all the facts and witnesses that support their position. Trial by ambush or surprise is not permitted in Pennsylvania. Another method of discovery is to take the oral deposition (statement under oath) of witnesses who can either provide relevant testimony or provide testimony concerning the events that could lead to the admission of relevant evidence. A party may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action. The fact that the information obtained may not be admissible at trial does not limit discovery if the information sought appears reasonably calculated to lead to other admissible evidence. Oftentimes subpoenas are issued to persons or entities other than the parties in order to compel records or testimony which can help prove that party’s case. The parties may also serve Requests for Admissions upon the opposing party or parties. Pennsylvania law requires that these requests be answered within thirty days or otherwise they are admitted. The purpose of filing Requests for Admissions is to have the opponent agree to certain facts so as to avoid the necessity of calling witnesses to testify about things that are not really in dispute. It serves to expedite the trial. VOIR DIRE: Our Constitution guarantees the right to a fair trial. A fair and impartial jury is essential to the enjoyment of that right. Voir Dire is a procedure utilized to attempt to find a fair and impartial jury from a larger panel of potential jurors. The purpose of Voir Dire is to select a jury. More to the point would be in Pennsylvania, it has as its purpose the de-selection of persons to sit on a jury from a larger panel of potential jurors. ( See Exhibit A.) Juries usually consist of between six and twelve members with one or two alternates depending on the complexity of the case. However, before the jury is chosen, the court may bring in thirty to forty prospective jurors (depending on the length of trial). They will be examined by the attorneys and/or the Judge to determine that if they are chosen to sit, they can be fair and unbiased. The process usually begins with general questioning of the potential jurors en masse. The general questions may disclose the need to follow up with more specific questions depending on their answers. If the question is of a personal nature, the questioning of a particular prospective juror is done privately. At the end of the examination, all counsel are generally permitted to strike any prospective juror that he or she does not want for any reason. In most cases each party is permitted four preemptory challenges or strikes. Jurors are stricken by a litigant if he or she believes that the juror will be biased, prejudiced or have an interest or fixed opinion and therefore cannot be fair and partial to his client. Each attorney is trying to weed out potential jurors who they feel will not be sympathetic to their case. There are also challenges for cause. These are unlimited in number. A challenge for cause would be granted to strike a prospective juror who, by his or her answer during the examination, demonstrates a bias, prejudice, interest, predisposition or fixed opinion that impairs his or her ability to be fair and impartial. The first remaining six to twelve jurors in order are then seated – basically chosen because they are the ones left standing so to speak. OPENING STATEMENTS: The attorneys for each party have a right to make an opening statement. However, the court has great discretion in determining the length of the opening address. Normally opening statements follow preliminary instructions which are provided by the Judge. These instructions are general and provide a jury with an overview of what is to be presented during the course of the trial and to instruct them on their duties during the proceeding. The purpose of an opening statement is to provide instruction to the jury as to the nature of the case and a statement of the facts that counsel intends to prove. Opening statements are not however facts. Openings are not facts. They are assertions by counsel only as to what they intend to prove through the introduction of witnesses and exhibits. The fundamental objective of an opening statement is to communicate the theory of the case to the jury in a concise and interesting manner. The plaintiff, who has the burden of proving his or her case, always goes first in an opening address. The defendant may or may not wish to provide an opening address before he or she presents their case. It is their discretion. INTRODUCTION OF EVIDENCE: Trials are based on the evidence presented through witnesses, documents and sometimes video films and re-enactments. It is up to each party to present the evidence of its witnesses under oath to help prove the assertions that are being alleged by the party. The witnesses have to convince the jurors that their recitation of the facts or version of the events are believable. Witnesses can testify about observations they have made or, in some cases, things that they have heard. They are not usually allowed to give opinions as to what the facts mean. That is up to the jury to decide. Witnesses are generally only allowed to testify about what observations they saw directly and, at times, heard. Normally witnesses are not allowed to testify about what other people say or said outside of the courtroom. That is called hearsay testimony and is inadmissible. There are numerous exceptions to hearsay such as excited utterances, state of mind of another person and admissions of a party, to name a few. In a civil case, the plaintiff has the burden of proving all the contentions that entitle him or her to relief. When a party has the burden of proof of a particular issue, the party’s contention on that issue must be established by what we call a fair preponderance of the evidence. A jury must be persuaded that the evidence presented is more probably accurate and true than not. Expert testimony is admissible only where, by reason of the expert’s peculiar skill and experience, inferences which an ordinary untrained mind cannot deduce can be drawn from facts, or where such testimony relates to a subject which is not within the average experience and common understanding of the jury. Conversely, expert testimony is not necessary for a subject which is one of common knowledge and understanding on which lay people can form a reasonable opinion for themselves. Documents can also be used to help prove a case but they must either be stipulated to by the parties or testimony as to their accuracy, authenticity and relevance, must be presented before being permitted into evidence. Direct evidence constitutes testimony of a witness who actually or directly observed an incident or, in some cases, heard it. Direct testimony can even be testimony concerning other senses such as smell and touch. There is also circumstantial evidence. Circumstantial evidence consists of the proof of facts, from circumstances, for which it is reasonable to infer the evidence of another fact. Circumstantial evidence is to be treated no differently than direct evidence. For example, direct evidence is testimony by a witness who testifies that he saw it snowing at a particular time because he looked outside and saw snow fall. If, however, he did not actually see the snow coming down but when he got up in the morning and looked outside, he saw snow on the ground, it is proper for a jury to infer from those facts that it had in fact snowed the night before. CLOSING ARGUMENT: Just as in an opening statement, the plaintiff presents closing arguments or his summation to the jury first. The defendant then provides her summation and after that a short rebuttal summation is permitted by the plaintiff. The closing argument is obviously the last chance for counsel to summarize the evidence that has been introduced during the course of the trial and argue its authenticity and persuasiveness to prove the party’s case. In the closing argument the advocate is expected to structure the evidence in such a manner as to persuade the jury to find in his or her client’s favor. The most effective tool in this setting, is to present to the jury the theory of the case which was presented to the jury in the opening address. The advantage of the closing argument or summation is that the attorney can now weave the facts presented during testimony with the law which governs the case. The lawyer, within the court’s of discretion, can recite portions of the law which are applicable to the case and then compare it to the evidence introduced. During closing summations, use of exhibits and other demonstrative evidence can be used to persuade the jury. The time permitted for closing arguments is also up to the discretion of the court. JURY INSTRUCTIONS: At the conclusion of all the evidence, the Judge will read to the jury the principles of law which are to guide the jury in its deliberations. The court will instruct the jury as to what they are bound by under the law. He will instruct them on the elements of the case which must be proved. Jurors are the triers of the facts. However, the Judge is the interpreter of the law. The court during its instructional phase, will provide the jurors with the legal principles under which they are bound. However, it is the jurors who decide which version of the facts are to be believed-not the judge. The jury instructions are read by the judge in a closed court room. Nono one is permitted to enter or leave during the Judge’s instructions. JURY DELIBERATIONS: The first order of business for a jury is to pick a foreperson who has no more or less power than any other juror but is chosen only to manage the deliberations; to report to the judge if questions are raised during the course of deliberations and to stand and read the verdict in open court once deliberations are completed and the verdict is reached. (See Exhibit B.) Once the case is closed and the court has finished its instructions, all the jurors (other than the alternates) retire to the jury room to deliberate in private. In a civil case, a 5/6 majority is necessary in order for that party to prevail. In civil cases, the jury normally completes a verdict sheet determining whether or not the defendant is liable and if so, for what amount of monetary damages. Peter J. Hart, Esquire QUESTIONS ABOUT AUTO INSURANCE COVERAGE – 1/19/2010 I am often stopped and asked questions about motor vehicle insurance coverages. The following questions are commonly asked. Let me share my responses. Question: Answer: Question: Answer: Question: Answer: Question: Answer: Please feel free to send me an email or call concerning any consumer oriented insurance questions. It is very important for you to have knowledge of your rights before something bad happens and it is too late. Peter J. Hart, Esquire WHY CONTINGENCY FEE AGREEMENTS ARE NECESSARY FOR INJURED PEOPLE – 1/15/2010 Under a Contingency Fee Agreement the client is not charged an up front fee or ongoing for the lawyer’s time, services and financial expenditures. This includes the time the lawyer spends investigating, developing and prosecuting the client’s case as well as the substantial out of pocket costs that are normally incurred. Even in the less serious personal injury cases, costs advanced by the attorney can range between $3,000 – $10,000. This includes investigation costs; court fees; deposition costs; meeting with the medical specialists and the cost of expert witness testimony at trial. The time a lawyer spends on any one case can range anywhere from ten to hundreds or more of hours or more if the case goes to trial. A contingency fee agreement is usually the only way that an injured victim can get the keys to the courthouse door. If an injured person (often unable to work and in debt) had to pay an attorney up front for his or her time and expenses, he or she would not be able to proceed with a legitimate claim for the harms and losses sustained due to the carelessness of others. Under a contingency fee agreement, the attorney only gets paid if he or she is successful and recovers money on behalf of the client. There is a real and substantial risk in every case (no matter how good the case), that the client may not prevail. If this happens, the attorney loses his or her time and all costs incurred. Contingency fees charged by an attorney can run anywhere from 25% – 40% of the recovery depending on the complexity, risk and time required. This may at first seem high but you must understand that although in some cases, the attorney may obtain a large fee for his or her time and effort, there are also many cases where the opposite occurs You must also realize that the attorney is taking a risk with every case and may, no matter how good the case is, not be able to successfully recover any monies even when the client has been unfairly harmed. In all contingency cases, an attorney must make a business decision regarding what cases to take and which not to take. Plaintiffs’ attorneys are always very careful to take only cases that they believe are meritorious and stand a substantial likelihood of success in front of a jury. Otherwise they would go out of business. In some cases, an attorney may make a large recovery on a case but this must be balanced against the other cases in which the attorney spends significant time and money reviewing a case for a potential client at no charge only to tell him or her that there is not a case. I spend anywhere from a fifteen minute phone call to many hours of investigation on each person who contacts me with a potential case. They are hurting and confused and need to be heard. Virtually no injured person would ever see the inside of a courtroom if it were not for contingency fee agreements and attorneys willing to bear the risk on behalf of their injured client. Peter J. Hart, Esquire LET’S BE CAREFUL OUT THERE, HOSTS AND PARTY GUESTS – 12/10/2009 Originally, Pennsylvania law held an intoxicated person solely responsible for injuries inflicted on another while under the influence of alcohol. If you were driving while intoxicated and ran over someone, it was your fault alone, not withstanding any assistance rendered by whomever served you the drinks. A tavern owner could not be held responsible even if he served a person who was falling down drunk. Eventually, Pennsylvania enacted laws known as dramshop acts which forbade the commercial service of alcohol to someone “visibly intoxicated.” Under this legislation, the commercial vendor or tavern owner could be held jointly liable along with the drunk. The rationale was that a person under the influence of alcohol was considered not only physically incapacitated by the alcohol, but was also considered to be mentally incapacitated, and thus incapable of exercising proper judgment. The law placed a duty on the server to not make matters worse by continuing to ply a person with spirits. Recently, various injured parties have requested the courts to expand current law to place this same liability on a “social host” – that is, one who serves alcohol to another for free. This includes private individuals who serve alcohol to party guests in their home as well as employers who sponsor holiday parties where alcohol is provided to employees and their guests. Pennsylvania courts have thus far rejected an expansion of this rule. But they have begun to approve certain exceptions. For example, if the employer charges in any way for drinks, he can now be held liable for any injuries caused by the visibly intoxicated person. If the employer serves a minor, he will automatically be liable, whether or not the minor was visibly intoxicated and whether or not the employer even knew that he or she was not twenty-one. Liability can even arise if the employer merely provides the premises where the liquor is served to a minor. Although Pennsylvania has not yet seen fit to place a duty on a social host to refrain from serving a visibly intoxicated person, our sister state, New Jersey, has. Given the growing public concern and awareness of the tragedy of drunk driving, can Pennsylvania be far behind? The trend seems to be heading in that direction and your Holiday party should not be the one to make new law. To require a social host, including an employer, to exercise responsible judgement in prohibiting a person visibly intoxicated from being further served seems natural. A responsible position for any employer wishing to protect his employees, guests and third persons, would be to monitor the Christmas party closely and to provide amenities such as cab fare, designated drivers, non-alcoholic beverages and food. Employers now in the process of arranging that holiday bash should keep in mind their responsibilities as “social hosts” under the law by assuring that the only red nose served is on Santa’s face. Happy Holidays! Peter J. Hart, Esquire |
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Karp and Hart is a law firm that limits its practice to personal injury and medical malpractice cases. We serve our clients in Philadelphia area locations including West Chester, King of Prussia, Honey Brook, Coatesville, Thorndale, Downingtown, Lionville, Exton, Frazer, Malvern, Paoli, Phoenixville, Devon, Berwyn, West Goshen, Chadds Ford, Kennett Square, Avondale, West Grove, Oxford, Parkesburg, Chester Springs, Coventry and the Main Line. We take most injury and malpractice cases and have worked to serve victims of car accidents, medical malpractice, surgical errors, motorcycle accidents, and more.
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