FAQ

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Personal Injury Cases

What is a personal injury case?

A personal injury case can arise from a white variety of circumstances. The list of potential types of personal injury cases is endless. The more common ones are those “accidents” which people commonly have, such as car accidents slip and fall accidents, trip and fall accidents, etc. Sometimes personal injury cases don’t even involve physical injuries. Damage to your personal property is compensable and is often a part of a personal injury case.

 

What is Negligence?

“Negligence” is a word we all know, but it is also a legal term. There is no one definition for negligence. Generally, we are all required to use “reasonable care” in how we conduct ourselves in the circumstances we are in. When we fail to use reasonable care and we cause somebody else harm, that is negligence. A driver who is inattentive causing harm to you and/or your vehicle is negligent. People can disagree, and often do, about whether someone was or was not negligent under a given set of facts.

 

How do I know if I have a case?

Usually, the best way to find out whether you have a viable personal injury case is to talk to a personal injury lawyer who regularly handles these sort of cases. Usually, a case that is strong will be recognized by the personal injury attorney. However, sometimes it is not so clear cut. I have taken cases that other lawyers have turned down, and I am quite certain that I have turned down cases that other lawyers have taken. It is generally a good idea, if one lawyer has declined to represent you, to seek the opinion of another lawyer. You never know what somebody else sees. It’s just like getting a second medical opinion.

 

How is the value of my case determined?

The case valuation is subject to many factors. There is no minimum or maximum value to any case. Factors which go into the determination of the value of the case include: how solid the liability of your case is. A case in which liability is strong will generally be worth more than a case where liability is not as strong even if the nature and extent of the damages is identical. You must be able to establish liability (or convince someone that you can) before you are entitled to compensation for your damages. The nature and extent of your injuries, the amount of your economic damages, (such as lost wages, medical bills)

 

What is a contingency fee?

All personal injury cases are handled on a contingency fee basis. The attorney does not charge by the hour, or a flat fee amount. A contingency fee means that if the attorney does not successfully obtain compensation on your behalf, the attorney does not get paid. Typically, a contingency fee is based on the percentage of the gross recovery settlement.

 

What percentage of the recovery should my attorney’s fee be?

In California, the attorney’s fee is negotiable between the client and the attorney, and this is required to be stated in the retainer agreement. While a “one-third” attorney’s fee is commonly charged in many personal injury cases, there is no requirement that this be the fee. Most attorneys usually have a provision in their fee agreements that the fee will increase, often to 40%, in the event the case goes to trial.

 

Do I have to give you any money to handle my auto accident case?

No. Expenditures (usually referred to as “costs”) will be necessary in your case. This can be for things such as obtaining copies of medical records, filing documents with the court, deposition costs, expert fees, etc. All such costs are advanced by our office and are reimbursed upon the successful conclusion of your case.

 

What type of damages are sought in a personal injury case?

There are two broad categories of damages:

  1. Economic damages is the first category, which include items that are reasonably calculated, such as past wages lost from work, or which will likely result in the future because of your injuries, medical bills that have been incurred and likely will need to be incurred in the future, expenses which resulted due to your injuries, such as the cost of a rental car during the time your vehicle is being fixed, the cost of equipment you need because of the accident, etc.
  2. The second category is non-economic damages. This is also termed “general” damages, or “pain and suffering” damages. Non-economic damages are not easily quantified like economic damages. The amount of “non-economic” damages your case is worth will depends on many factors, such as the nature and extent of your injuries. You have probably heard the expression “beauty is in the eye of the beholder.” The same sort of analogy can be made to pain and suffering damages. Often, looking at the same facts of a case, one person may believe damages are substantial while another person may believe they are slight. One of the many tasks of a good plaintiff’s attorney is to effectively demonstrate to the insurance carrier/jury/arbitrator/or mediator, the full and complete extent of your non-economic damages to maximize your recovery.

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Auto Accident Cases

While my case is in progress, will I be dealing with my attorney personally, or just with the office staff?

The answer to this is you will absolutely be dealing with the attorney! One of the chief complaints of clients, and probably the very most frequently cited cause of the breakdown in the attorney-client relationship, is a lack of communication between the client and the attorney. As a client, you are entitled to know, at all times, what is happening with your case. I particularly like to keep in touch with clients by e-mail. I have found this to be highly effective method of maintaining contact with my clients, to keep them informed about their case. It also tends to avoid the annoying occurrence of “telephone tag.”

At times, it is appropriate to be contacted by office staff about scheduling matters and the like, but most often your contact will be with me personally.

 

How long will my car accident case take to be resolved?

Sometimes cases can be resolved fairly quickly, especially if no litigation is involved. Unfortunately though, insurance carriers tend to undervalue (“low ball”) the fair worth of cases, with the hope that the injured person will take a low settlement offer. When that occurs, there is no alternative but to file a lawsuit. In my experience, particularly in larger cases, it is a waste of time waiting to see if the insurance company will bargain fairly before filing a lawsuit. You are simply better off pursuing litigation immediately as a more effective method of arriving at an earlier just and fair settlement.

The other bad news is that, with the California State budget cuts being what they are, it has become harder to get a reasonably quick trial date. Unfortunately, the insurance company lawyers are well aware of this, and often will not give their best offer of settlement until a trial date is near. The litigation process can easily take a year to two, though smaller cases can sometimes be settled within a short time frame following the completion of your medical treatment.

 

How do I prove that I lost time away from work due to my car accident?

First, there are two types of claims for your loss of earnings: claims for past lost wages, and claims for future lost wages. Typically, medical proof for past lost wages comes from your primary treating doctor, who will be able to show the nature and extent of your injuries, and the time frame of your injuries. Second, records can be obtained from your employer to show when you were absent from work. Do not be concerned if your employer does not keep good records about those sort of things, as there are always other methods to show time lost away from work. If you are a self-employed person, there are many other methods to show that the occurrence of your motor vehicle accident made it difficult or impossible to work for a certain period of time.

Future loss of earnings generally requires both medical and financial documentation. If your claim is substantial, the testimony of a forensic economist may be needed to calculate the value of your loss of future earnings claim. Your treating doctor, or other medical expert, will also be needed to testify about the nature and extent of your injury and to show that your injury will restrict her ability to perform certain jobs. It may also be necessary to show that your injuries will result in your inability to make as much money as you previously did.

 

Will I have to give a statement to the insurance company about my motor vehicle accident?

Often, although it is not required, an injured party will either provide an oral or written statement to an insurance adjuster about the facts pertaining to the car accident, as well as the injuries which resulted. Virtually always this is done before a lawsuit has been filed, and while the parties are attempting to negotiate a settlement. Generally, the insurance adjuster will want to record this statement utilizing a small recording device brought to where the statement is being given. Although not a hard and fast rule, I usually prefer that my clients provide statements that are written out by the insurance adjuster, and then signed by my client. People sometimes misspeak and say things they did not intend which can be harmful to your claim. It is generally better to first read the content of the statement that has been written out, and make corrections if necessary.

 

Will you need to file a lawsuit to resolve my car accident case?

Unfortunately, the answer this question is usually “yes.” The harsh reality of our insurance claims system is that a lawsuit will generally need to be brought before fair and reasonable compensation can be obtained for the injured person. Regrettably, insurance companies often treat pre-litigation negotiations (before a lawsuit is filed) as a time to try to resolve the case for less money than the case justly deserves.

Generally, the case will settle during the litigation process before a trial commences. Well over 90% of all cases settle before trial. However, very often cases will only settle at the eve of trial, on the proverbial courthouse steps.

 

Will my car insurance rates go up if I make a claim for my accident?

Many motor vehicle accident victims will not make insurance claims out of concern that their car insurance rates will be raised if they make a bodily injury claim even if they weren’t at fault. I generally tell my clients that they did not need to worry about their insurance being raised since there are a lot of other insurance carriers who are willing to take their business for less than the present carrier is charging them! However, even assuming you want to stay with your same insurance carrier, my experience has been that a client’s insurance rates will not increase if they were not at fault in the accident, and, even if they were found to be partially at fault, many companies will not raise your premium rates due to the accident. Of course, many times your insurance rates will increase whether or not you had an accident!

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Premises Liability Cases

What is premises liability?

Premises liability refers to when a landowner and/or a possessor of land ( i.e. “the premises”) is held responsible for injuries to others who are injured while on the premises, which are due to the owner or possessor’s negligence. Usually, a premises liability lawsuit results from the property owner’s or occupant’s failure to maintain the property in a safe condition or failure to correct a dangerous condition on the property which they either knew about or should have known about upon reasonable inspection of the property.

 

What is a dangerous condition?

A property owner is responsible for dangerous and hazardous conditions on the property which were either known about, or which should have been known about. Sometimes a dangerous condition might be hidden, but if it is one that the owner ought to have known about through using due care and diligence, then he or she may still be held liable for any injuries which result from the dangerous condition. As an example, if the property owner or occupier of the premises had no knowledge of the dangerous condition but could have been made aware of the through routine maintenance and inspection of the premises, then the owner is responsible. If the property owner is aware of the dangerous condition, then it is his or her responsibility to protect others from harm by removing the danger in a reasonably safe and expeditious fashion.

 

What are common types of premises liability cases?

By far, the most common types of premises liability cases are the “slip and fall” and “trip and fall” type of cases. An example of a slip and fall case would be an accident in a super market where a patron slips on a wet surface, or on a recently waxed floor surface, without receiving adequate notice of the condition so as to enable the patron to avoid the slip and the resulting harm. An example of a trip and fall case is where a person trips on an unmarked uneven surface, or where there is a defect on a floor or stairway which causes an individual to trip. There are numerous other type of premises liability cases, as well. Injuries resulting from a dog bite on the owner or occupier’s land is one such example.

 

How long do I have to bring a lawsuit for a premises liability case?

In California, the statute of limitations for bringing a premises liability type of lawsuit is two years from the date of incident. However, even though this may seem like a long time before filing a lawsuit becomes necessary, it is generally advisable to act immediately after the occurrence of your premises liability accident. There are many reasons for this, including the fact that the condition of the premises will usually be altered over time, and it is almost always advisable to obtain photographs of the dangerous condition at or near the time of the event. Also, witnesses to the event also may no longer be available as time goes by, or recollection of events may fade.

 

If I have a slip and fall accident at a store, should I report it to the store’s management?

It is almost always best to report an accident at or near the time the incident occurs. Sometimes this is not always possible, but in general, if you can, do so. Many stores have special accident report forms for this very purpose. The report should specify what happened, who witnessed the accident, what was said as a result of the incident, the condition that contributed to its cause, etc. Photograph should also be taken if possible. It is also a good idea to seek legal representation as soon as possible following the occurrence of the incident to enable your attorney to preserve and protect the evidence from your case.

 

What damages can I recover under California premises liability law?

As in other types of personal injury claims, California law allows for recovery of medical expenses, wage loss, pain and suffering damages, potential future medical expenses, potential future loss of earning capacity, etc.

 

What is the value of my slip and fall or trip and fall case?

As in other sorts of personal injury cases, the value is subject to many factors. First and foremost is how strong the liability aspect of your case is. Not all premises liability cases are clear cut with respect to whether the owner or occupier of the property is responsible. You must first be able to establish liability in order to establish damages in your case. Another factor affecting the value of your case is the nature and extent of the injuries he suffered as a result of the fall. Often, a true value of the case cannot be determined until after extensive investigation and complete medical diagnosis of your injuries is obtained.

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Wrongful Death Cases

What is a wrongful death case?

In general, a “wrongful death” case refers to a lawsuit that may be brought by certain family members of a decedent (the person who died) when that person’s death resulted from the wrongful conduct of another. A wrongful death case may arise from an automobile accident, a premises liability case, a medical malpractice case, etc. It is the resulting death which distinguishes a wrongful death case from other types of personal injury claims, and not the nature of the accident itself.

 

Who is allowed to bring a wrongful death case in California?

California Code of Civil Procedure section 377.60 identifies the persons who are entitled to bring a wrongful death case. In general these include the decedent’s surviving spouse, children and children of predeceased children. Again, you should consult with a An attorney to determine if you are in fact eligible to bring a wrongful death claim.

 

In California, what sort of damages are recoverable in a wrongful death case?

Damages recoverable in a wrongful death case are for economic and non-economic loss. Economic loss is for such things as the past and future value of financial support the decedent provided before his or her death, funeral and burial expenses, as well as the value of lost household services. Non-economic damages are those which are recoverable for the loss of a loved one’s companionship, comfort, care, affection, love, moral support, guidance, and society. The facts of each case are different and there is no fixed standard for determining the non-economic harm.

 

How long do I have to bring a wrongful death case?

Once again, a wrongful death claim is based on the fact that a person has died, rather than the sort of incident it was. So, for example, in a medical malpractice case in California which results in someone’s death, the statute of limitations may be as short as one year. That is because it is based on a medical malpractice statute of limitations found within the California Code of Civil Procedure. In a case where the decedent died as a result of an automobile accident, or as a result of a dangerous condition on property, the statue limitations will be two years. It is always a good idea to consult with a competent attorney to find out the applicable statute of limitations.
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Spinal Cord Injury Cases

How do I know if I have a Spinal Cord Injury?

An injury to the spinal cord is automatically among the most dangerous and threatening injuries there are. Unfortunately, it is very difficult to differentiate between a serious spine injury and a simple soft tissue back or neck strain. The most noticeable signs of a spine injury are numbness in the hands, feet, fingers, and toes as well as a constant but fluctuating degree of pain in the lower back or neck area’s. If you have been in a collision of any kind and experience these symptoms it is likely in your best interest to seek medical attention and re-evaluate the origin of your injury.

 

What types of injuries can be associated with the spine?

Spine injuries are both serious and difficult to recognize. People will often ignore a serious spinal cord injury because they assume it is a simple back or neck strain. In doing so, they are at risk of causing even greater damage to their most important skeletal component. Below is a list of injuries most commonly connected to a damaged spine:

  • Disc Herniation: Tear in the disc ring of the spinal cord
  • Disc Bulge: Swelling of the vertebrae due to traumatic injury to the spine
  • Quadriplegia: Paralysis in all four limbs when spinal cord is damaged in the neck area
  • Paraplegia: Paralysis in both legs and the abdomen when spinal cord is damaged below the area of the neck

 

What if my spine was injured in an avoidable accident?

If you believe your spinal cord injury was the result of another’s carelessness you may be in a position to recover damages from the negligent party. It is no secret that injuries to the spine can affect your capacity to work, provide for your family and may even limit your ability to live a normal life. With that in mind, any injury to the nervous system that resulted from criminal negligence should be examined and pursued through legal channels. An experienced personal injury attorney may be able to help victims seek legal justice and fair compensation for any avoidable spinal cord injuries.

 

When should I report a spinal cord injury?

As mentioned above, spine injuries can be difficult to diagnose without the assistance of a physician. That said, any and all injuries should be reported as soon as possible to insure a fair evaluation down the road. So, if you are experiencing neck or back pain while giving your report to a police officer or insurance agent it is important you communicate this discomfort. From there, a doctor will determine the severity of your injury and the impact it may have going forward.
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Medical Malpractice Cases

What is Medical Malpractice?

Medical malpractice is a term generally used to describe medical treatment that does not live up to the legal standards of health care and, as a result, causes some kind of harm to a patient. Medical Malpractice can often be a broad term but normally involves at least one of the following medical care issues: Improper treatment, misdiagnosis, prescription errors, failure to treat, and/or treatment delay.

 

I think I may have a medical malpractice case. How do I get my medical records?

The Health and Safety code of California clearly states that any adult patient is entitled to review and/or copy their personal medical records. Under law, if a patient wishes to review his or her records they must first submit a written request for said records to their physician. Once the request is submitted, the doctor has five business days to produce a copy of the individual’s medical records. It should also be noted that the patient may be expected, and is in fact required by law, to pay for any reasonably clerical costs so that physicians and their offices do not have to taken on the financial burden or searching for and copying the records.

 

After obtaining my medical records, what are the next steps in a medical malpractice claim?

Medical malpractice cases can be quite complicated from the get go. You must first demonstrate a professional relationship with the offending doctor. In doing so you will establish that a legal doctor-patient relationship existed and that said doctor had a legal obligation to your health and safety. Next, you will have to prove that the doctor was negligent in your medical malpractice case and that your injuries or illness could have been avoided. Finally, the plaintiff must show that the actions of the doctor or conditions of the hospital itself do not meet the accepted standards of treatment in the medical community.

Of course, each of these steps can be very difficult. So, if you think you have a case for medical malpractice it is likely in your best interest to find an experienced personal injury attorney with experience fighting for medical malpractice claims.

 

Lawyers are always very expensive. Can I afford to file a medical malpractice claim?

The Law Firm of Martin P. Weniz will handle cases of medical malpractice on a contingency fee basis. This means that all legal costs will be taken care of by the law firm until a settlement is reached or a trial is concluded. In the event of a successful conclusion to your medical malpractice case these legal costs, or expenditures, can be reimbursed with the money won in your case.

If the trial is lost or no settlement is reached, you will not be responsible for any legal costs incurred throughout the process.
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