What Not to Say to an Insurance Adjuster

Nov 01, 2021 | Sean Content Team

When you are dealing with shock and injuries in the aftermath of a car accident, it can be difficult to think about what to say to an insurance adjuster when they contact you. What you do and don’t say, however, can make or break your case, so it’s critical that you understand how to communicate with them.

The Role of the Insurance Adjuster

An insurance adjuster is employed by an insurance company to investigate and assess the company’s liability in the claims they review. It is the insurance adjuster’s job to settle the claim as quickly as possible for the lowest possible amount. Unfortunately, this means that the insurance adjuster is not on your side. Even though they may sound friendly and inquire about your wellbeing, their goal is to give you as little compensation as possible.

What You Should Do When You Talk to an Insurance Adjuster

Within a few days of an accident, you can expect a call from at least one insurance adjuster. Here are five things you should be sure to do on this call:

  • Find out who they are – Write down their name and the company they represent.
  • Refuse to allow your statement to be recorded – One of the first things the insurance adjuster will ask is if they can record your statement. A recorded statement can be used as evidence against your case, and you have the legal right to refuse the recording.
  • Only provide basic information about yourself – This can include your name, address, and phone number. Remember, you don’t have to answer all their questions.
  • Only provide basic information about the accident – This may include time, date, location, and vehicles involved. Once again, you don’t have to answer all their questions.
  • Refer them to your lawyer – If you have hired a car accident lawyer, you can refer them straight to your attorney if they have further questions.

What You Should Not Say to an Insurance Adjuster

What you do not say to an insurance adjuster is critical to the outcome of your case. The adjuster is looking for any reason they can find to reduce the insurance company’s liability, and whatever you say can be used as evidence against you and could be used to minimize your claim. The less you say, the better, so keep the conversation as brief as possible and remember not the say the following:

  • “Sorry, it was my fault” – Whether or not you think you did something wrong, do not offer apologies or admit fault. Most accidents are caused by many variables, some of which you may not be aware of.
  • “Here’s what I think happened…” – The insurance adjuster will ask you questions about the cause of the accident. You need to state the facts but keep your answers brief. Do not speculate, exaggerate, or provide your opinion about who was at fault.
  • “I’m fine” – The insurance adjuster may casually begin your conversation by asking “how are you?” Even if you do feel fine, don’t tell them so. In some cases, a victim can be so shocked by an accident, that it takes a few days for injuries to present themselves through symptoms.
  • “My injuries include …” You cannot be sure of exactly how serious your injuries are until you have been examined by a doctor. When the adjuster asks what injuries you have sustained from the accident, tell them your lawyer will send them a list.
  • “Sure, you can talk to my doctor” – The adjuster may try to obtain details of your medical history to identify pre-existing conditions and injuries that can reduce the value of your claim. Do not provide any of these details or give them permission to access your medical records, even if they say they need this information to verify your injuries.


At CHASENBOSCOLO, we have helped thousands of car accident victims obtain hundreds of millions of dollars in compensation. Our compassionate and skilled attorneys are here to guide you through the complicated insurance claim process and advocate for your rights to help you obtain fair compensation for your losses. We offer a No Fee Guarantee so you can rest assured that you won’t pay anything until we recover money for you. Contact us at (301) 220-0050 today for a free consultation and learn how we can help you.

Don’t wait any longer. Call now.

It’s okay to admit you need help: Overcoming the stigma of mental health treatment


Dec 17, 2018 | admin

by Elizabeth Payne-Maddalena

Broken bones. Whiplash. Concussions and TBIs. Slipped discs. Busted knees. Juries expect these kinds of injuries from a car crash or a slip and fall. These injuries are easy to diagnose: there are diagnostic tests for them, like x-rays and MRIs. Doctors can press on a muscle and feel it spasm, look at a person and see them limp.

But a person isn’t just a collection of body parts. That’s not what makes you you. When I ask people what drives them in life, they tell me about their families, friends, faith, work, passions, hobbies and dreams. Those are the important little pieces of a person that makes up a soul.

To pursue these things, these passions that make up a person, people have to be physically able to do them. When someone gets hurt in a car crash, it’s like throwing a stone into a calm pond – the ripples spread out and touch each part of their life. The outgoing PTA mom who’s always willing to help out suddenly withdraws, in too much pain to paste a smile on her face. The young accomplished athlete feels like a failure, struggling with frustration, anger at the recovery process. The office rockstar misses work, meetings, falls behind.

Juries aren’t surprised to hear about these kinds of damages from car crash or fall victims. After all, jurors are people too, and this makes sense to them that injuries do more than just hurt. But sadly, some attorneys choose to ignore these impacts on their clients’ lives, even when the emotions become so great that their client needs professional help to recover. These injuries, some say, are too “hard” to prove. After all, there’s no MRI to show depression. X-rays don’t show driving anxiety.

However, these are crucial losses that you’ve suffered because of someone else’s negligent choices, and you deserve to be compensated for them. So today, I’d like to talk to you about how to make sure all of you gets the healing you need after you’ve been injured. This is an important topic, and I know there are lots of stigmas around “mental health issues” that we’ll get into. Most importantly, remember that there’s nothing wrong with asking for help when you need it.

What kind of emotional or psychological injuries do you normally see in your cases?

First of all, I try not to call them “psychological injuries” because there’s a lot of baggage with that term, and I don’t want clients to feel judged or uncomfortable.

The situation I described above is very common with my clients. Injuries suck. I’ve had my fair share of them, and the healing process can be a long and arduous road. The pain alone can cause someone to want to isolate themselves or feel weak, humiliated. Clients may lash out unintentionally when they’re hurting, affecting their relationships with others. But some feel robbed when they miss out on important life events, or even everyday life events. When the injuries are life-changing, its a higher chance that they will never truly, fully recover. This makes some people very depressed. Some people get angry, as they did nothing wrong – after all, it was the defendant who made the choice that caused them to get hurt. Sometimes, these feelings of depression, anger, or anxiety become a festering wound that drags a person down.

Other times, the event itself may trigger anxiety or post-traumatic stress for a client. For example, imagine you’re sitting at a red traffic light, minding your own business when BAM! A drunk driver rear-ends you at full speed. You have to be taken to the ER from the scene by an ambulance. It’s out of nowhere. Next time you’re sitting at a red light, how do you think you’re feeling? Nervous? Anxious? You bet. Your sense of safety’s been completely shattered, and now, you trust no one. Many people confess to feeling like they’re just waiting for the next negligent driver to hit them – and they’re scared that the next one will be a lot worse. For a majority of people, this driving anxiety goes away after a few weeks. But for some, it clutches into their brain and refuses to let go. When those people get behind the wheel, they may start to feel their heart racing or have flashbacks. Nightmares might plague them. They avoid driving. When it starts to interfere with all the things you have to get done, that’s when you need to ask for help.

For assault and abuse survivors, the trauma surrounding the event itself leaves long lasting scars that require counseling to help them overcome their fears. Getting a client into immediate supportive treatment is necessary in these kinds of cases in order to help give the client the support they need to fully recover from their abusers.

What should I be doing to protect myself?

Again, each client is different – no two people are alike. Some people may recover without needing any professional help, but others will. It’s important that you’re talking to your medical doctors, physical therapists, and your attorney about your frustrations, anger and anxiety, so that way, if you do need help it is well documented. This means you’ll have an easier time getting treatment if you need it. This also helps build your case by having a third party that can back up your testimony if the case goes into litigation.

What are some of the major roadblocks that keep clients from getting treatment?


Let’s face it: the US has a major problem when it comes to our views on mental health issues. The Association for Psychological Science cites this stigma as one of the main reasons why people don’t get or complete mental health treatment. Getting counseling or therapy is seen as something “crazy” or for people with serious psychological disorders. Some see it as an admission of weakness.

The simple truth is that the people I know who are willing to seek professional help when they need it are the strongest people I know. They’re anything but crazy. In fact, they’re some of the sanest people I’ve met. Think of it this way: you have a brain injury, you see a neurologist. But if your psyche is injured, you’re not gonna go see a doctor to heal that?

Insurance and money

The next big hurdle is finding a way to pay for treatment. Under the ACA, insurance companies must cover mental health treatments. This is great news, and something that hopefully Congress sees and keeps this requirement.

But many providers are out of network, meaning there are high copays or deductibles. Finding in-network providers can be time consuming, or worse, involve long waitlists. But there may be solutions you and your attorney can come up with if you ask and explain the issue with them. Let them be your ally! After all, we can’t help you if you don’t tell us what roadblocks you’re encountering.

Jagged little pill

With apologies to Alanis, medication is another big issue that makes many people shirk away from seeking help when they need it. There’s an additional stigma around taking psychiatric medications that’s pervasive. Some people fear they’ll become zombies or someone different on medication. Others worry that they’ll experience significant side effects. Still others fear addiction or dependency. But these feelings, while valid, shouldn’t stop you from getting the treatment you need.

First of all, medication is not always a requirement for treatment. It’s a tool that can be used as part of your treatment, yes, but it’s not a required one. Your mental health professional should be willing to work with you if you’re uncomfortable taking medication, and you should talk to them about your fears and concerns. You may also want to focus on treating with Licensed Professional Counselors (LPCs), Psychologists, and/or Licensed Social Workers (LSWs). These providers typically focus more on non-medication therapies versus psychiatrists. However, psychiatrists also offer therapies and methods that couple well with medication, or fall outside of it, and can be just as beneficial. They can be especially helpful if you do end up needing prescriptions to help manage your symptoms while you’re in treatment.

Additionally, your treating provider should work with you to find a medication that doesn’t result in significant or massive side effects or turn you into a zombie. While it may take a couple of adjustments or trying different drugs, your provider will work with you to find something that manages your symptoms while allowing you to still be you.

Finally, even if your provider recommends prescription medications as one of the tools to help you recover from your emotional injury, that doesn’t mean you’ll have to take that medication forever. It’s just like taking a course of antibiotics for a sinus infection: after you’re cured and you’ve completed your dose, you don’t keep taking them forever. Many people end up tapering off their medications completely once their treatment has resolved. Keep in mind that you should not just quit taking your medications, and stopping any psychiatric medications should be done at the recommendation and under the supervision of your treating provider.

Finding the right provider

The last big struggle I hear about when it comes to getting treatment for emotional injuries is finding the right provider. This boils down to two categories: experience/specialty and fit.

With experience and/or specialty, I mean finding a provider who’s treated people with the same trauma as you, and/or offers the kind of treatment you want. You don’t want to go to a counselor or therapist for driving anxiety whose never treated someone with post-crash driving fears before! When you’re calling around, ask your potential doctors, counselors or therapists if they’ve ever treated someone in your situation before. You should also ask what therapies they offer and prefer (including any concerns over medication, as I discussed above). If you’re not familiar with the therapies they offer, Google them! Google can be very helpful with explaining what therapies benefit what symptoms the best. For example:

By fit, I’m talking about finding a provider that you’re comfortable with. This is incredibly important when it comes to any medical provider that you’re seeing, case-related or not, but even more so for mental health treatment. You’re trusting and talking to someone about the thing that most people struggle opening up about: your feelings, your thoughts, your emotions, your fears. If you don’t feel comfortable (or like you can get comfortable) with a potential provider, your treatment won’t be as successful as it’ll be hard to open up. It’s not a bad thing, and a provider won’t take it personally. (As a lawyer, I tell potential clients all the time that they should feel comfortable talking to me, and if not, they shouldn’t choose me to be their attorney for the same reason).

Remember This

No matter what, people deserve to be compensated for the emotional damages they’ve incurred as a result of someone else’s negligent choices. Even if they don’t end up needing psychological treatment, as those damages still matter. Make sure you’re talking to your treating providers in order to build a record of these damages and ensure you get the treatment you need. Find an attorney who cares about all of you, not just your bones, muscles or organs. And don’t let the stigmas keep you from being compensated for all of your injuries. After all, it’s what you’re entitled to and what you deserve.

What is My Case Worth and How is it Determined?

Sep 20, 2018 | Tom Teodori

If you’ve made it to this page, its probably because you, a family member or friend sustained injuries resulting from the negligence of a company or individual. According to the National Safety Council, motor vehicle crashes in the United States during 2017 resulted in 40,100 deaths and 4,500,000 seriously injured people. Those numbers are mindboggling—110 people die each day in a motor vehicle collision and more than 12,328 are injured daily. For teenagers, car crashes are the number one cause of death. Tragically, you have a 1 in 102 odds of dying in a car crash during your lifetime. Being struck as a pedestrian is 1 in 561 and for those riding motorcycles, the odds are 1 in 846. Slip and fall statistics are also alarming. You have a 1 in 119 odds of dying as a result of a fall. The above numbers are ridiculously high, and you can see the real life and close-to-home tragic consequences of such events.

Negligence is frequently the result of somebody’s violation of the safety rules which are designed to protect us and keep us safe. Some sort of distraction, lack of proper attention, inadequate training, not following protocols, taking short cuts and otherwise not doing what a reasonable person would do creates the negligent conduct. When that safety violation occurs, the negligent party has an obligation to make things right. The question is—what is right?

How much money is right? What factors are considered in valuing an injury claim?

Although some might think it unseemly to value injury claims in dollars, that is the only method our system of justice allows. The United States’ system of justice derived from the common law system developed in England. Although many changes and modifications were made following our Declaration of Independence in 1776, we still hold to the judicial system that requires a negligent wrongdoer to fully compensate an injured party for his or her losses. Failure to do so is a failure to do justice. We are very fortunate to have the system we do because a justice system used in other parts of the world dates back to around 1754 B.C. Known for Babylonia King Hammurabi, its called the Code of Hammurabi. You are likely familiar with this justice system based upon retribution, an eye for an eye and tooth for a tooth.

So, returning to your inquiry, what is a case worth? Numerous factors dramatically affect the value of an injury claim. Many will be discussed below, but some common factors include the defendant’s conduct, the injuries sustained, medical care, lost wages, permanent injury and where the injury occurred. Although you may have heard from a friend or family member about a formula for determining case value, that system or process really has not existed for decades. Insurance companies today use computers to determine case value. Experienced injury attorneys are aware of this and have the tools and resources to fight for fair compensation.

Are there any liability issues?

The first step in assessing proper case value is resolving any and all liability issues. Liability simply means who is at fault. Is the at fault party completely at fault, or only partially at fault? Is fault disputed? Depending on the state where the negligence occurred, fault is crucial. The District of Columbia, Maryland and Virginia are three of the five jurisdictions in the United States that follow the concept of contributory negligence. In most states, comparative negligence is the standard. Why is that important to case value? In contributory negligence states, if the injured person is even 1% at fault then he or she is not entitled to any money—nothing! A harsh result, but that’s the legal standard in contributory negligence jurisdictions. In most of the US, the standard is one of comparative negligence. In such states, a comparison is made between the negligence of the parties and the injured person’s money award is reduced by his/her comparative negligence. So in a contributory negligence jurisdiction, if the injured party is found 1% at fault for a car crash, there would be no recovery. However, if with same set of facts the car crash occurred in a comparative jurisdiction (Pennsylvania) and the jury awarded $100,000.00 to the injured person, the award would be reduced by the injured person’s negligence (1% = $1,000.00), so the award would total $99,000.00.

Click here to learn more about how contributory negligence effects slip and fall cases.

How does an insurance company evaluate the value of your case?

In the past, an insurance company adjuster would use his/her common sense, education, training and experience to determine case value. However, in the mid 1990s, the claims departments of most large insurance companies underwent a radical transformation based upon suggestions by McKinsey Consulting. The suggestions were designed to reduce the amounts insurance companies were paying to injury victims, thereby dramatically increasing profits. So currently, most insurance companies use computer software based upon potentially hundreds to thousands of different data points to determine case value. One such program is called Colossus, which was originally created by Computer Science Corporation and leased to hundreds of insurance companies. The human element in reviewing claims has been significantly reduced, and at times, all but eliminated. The insurance industry cost savings have been huge while payments to injury victims have been dramatically decreased.

So, if an insurance company is going to use computer software to reduce the value of a case, what can be done about it? First, it’s important to retain a law firm experienced in handling claims with insurance companies using the computer software. Accurate documentation of injuries, type of medical care, body parts, loss of enjoyment, medical procedure codes, supporting records, medical billing codes, permanent injuries, etc. are important when preparing settlement demands that will be assessed by the computer.

Second, it’s critical to retain a lawyer and a law firm with a well-earned reputation for going to court. Insurance companies track and record which law firms fight for their clients by filing suit and which lawyers are more likely to just take the money and run. If your lawyer has a reputation for settling, you will get less of an offer than another lawyer with a reputation for fighting for his/her client. Normally, settlement value increases after suit is filed and may continue to increase as you get closer to the actual trial date.

Third, be prepared for a fight and you must remain patient. If the insurance company makes you an unfairly low offer and suit is filed on your behalf, the insurance company may hold on to its money until very close to trial. Insurance companies understand that they have the money and it doesn’t make much difference whether they pay today or one year from now. It’s not going to have much, if any, impact on the large insurance company. Insurance companies make money over time on their money through investments, so the delay is normally nothing but beneficial for insurance companies. You, on the other hand, have lost time from work, received less than you thought for the value of your vehicle, incurred medical bills that threaten to turn you over to credit agencies, spent through your savings and now feel the need to settle your claim. The insurance company now has you at a disadvantage. Again, an experienced injury lawyer will assist you through this difficult process and help you see the light at the end of the tunnel.

Some of the factors to consider in assessing case value include:

  1. The defendant’s behavior – The more outrageous the negligent behavior, the better the case value.
  2. The defendant – Will the defendant make a good or bad witness?
  3. The amount of insurance coverage
  4. The type of negligence claim – Minor rear-end crash versus tractor trailer setting off chain reaction collision.
  5. What county suit could be filed in – Certain jurisdictions are more favorable and insurance companies are aware.
  6. The injuries sustained and their extent and duration – Muscle strains versus herniated discs, brain injuries, fractures
  7. How the injuries effect your overall physical and mental well being
  8. The physical pain and mental suffering in the past and expected in the future
  9. Scarring – Scar to the face worth more than scar on back
  10. Medical expenses in the past and expected in the future
  11. Loss of earning in the past and expected in the future
  12. Past and future pain, permanent impairment, loss of mobility, companionship, enjoyment of the things you enjoy

No two cases are the same, and even similar facts and injuries frequently lead to widely different outcomes. What may be relatively minor for one person may be devastating for another—how can a computer make that determination? The problem is, insurance companies rely upon them to perform that function thousands of times per day. There is no humanity in using a computer to determine the seriousness of an injury and how it impacts and changes a person’s life. For that, you need an experienced lawyer on your side, one the insurance company knows will file suit if a fair offer is not made. Even so, because of the use of Colossus or similar programs, the insurance adjuster doesn’t have the flexibility to go above the computer value, so the decision must be made—settle or sue?

Ultimately, your case is worth this— what you’re willing to accept in settlement and if not, then what you are awarded at trial. A skilled trial attorney should be able to give you a pretty good idea of the value range of your claim based upon their experience.

A lawyer should also explain the settle or sue options so that a decision in the client’s best interests can be made. If the case ultimately proceeds to trial, then the value will be determined by a jury using many of the twelve criteria listed above.

Tort Reform Myths

Aug 09, 2018 | Barry Chasen

$11 billion and $700 million. That’s almost $12 billion. These are the 2016 profits of the following publicly traded property and casualty insurance companies: Travelers, Allstate, USAA, Progressive, Liberty Mutual, Hartford, FM Global, Loews and Fidelity National.[1]

This does not include the twenty-four billion dollar profit that Berkshire-Hathaway, the owner of Geico, earned in 2016.

Nor does it include the 2016 profits of the larger mutual property and casualty companies in the United States: Erie, $210 million; Auto-Owners, $386 million; State Farm, $250 million; Nationwide, $910 million; and even the relative newcomer to TV advertising, Farmer’s, earned $148 million (or $37 million every three months).

And don’t get me started on the health insurance companies. Let’s look at their second quarter of 2017: United Health Group, $2.3 billion; Aetna, $1.2 billion; Anthem, $855 million; Cigna, $813 million; and Humana, $650 million. The top 6 health insurers reported $6 billion in adjusted profits in the second quarter of 2017.

What are the myths?

  • My insurance premiums are rising because of all the tort lawsuits.
  • If we restrict victims’ ability to bring medical malpractice suits, healthcare would improve and its costs would be reduced.
  • Because doctors are afraid of getting sued, they practice “defensive medicine.”
  • Frivolous lawsuits clog the courts.
  • Caps on damages would reign in “out of control” juries from awarding lottery-size sums to plaintiffs, cause malpractice premiums to fall and thereby reverse the doctor shortage caused by doctors fleeing the profession.
  • Punitive damages are awarded too often and are too high.
  • Juries are more likely than judges to award punitive damages.
  • Damage awards are escalating out of control. The tort system has been turned into a lottery system favoring plaintiffs.
  • Juries get caught up in the emotion of trial, ignore the law and find for sympathetic plaintiffs.
  • Tort plaintiffs are using the courts to cripple American businesses.

In an article titled “Malpractice Myths” written by Bob Herbert on June 21, 2004, Mr. Herbert says, “It may be hard to understand why ‘tort reform’ is even on the national agenda at a time when insurance company profits are booming [Barry’s note: just like today], tort filings are declining, only 2% of injured people sue for compensation, punitive damages are rarely awarded, liability costs for businesses are miniscule, medical malpractice insurance and claims are less than 1% of all healthcare costs in America and premium-gouging underwriting practices of the insurance industry have been widely exposed.” These observations are no less true in 2018.

To discuss these issues, I’m going to group the myths in three categories:

  1. Insurance rates go up because of frivolous lawsuits and lottery-sized awards.
  2. Without the worry about medical negligence, healthcare would improve, costs would go down and doctors will not leave the profession.
  3. The third myth involves the assertion that the jury system is broken. There are frivolous lawsuits, run-away juries giving lottery-sized awards, juries are stupid and these awards cripple American business.

Let’s talk about three examples: health insurance, medical malpractice and property and casualty insurance.

Health Insurance

The myth is that doctors who are afraid of being sued practice defensive medicine, thereby performing unnecessary tests, and thereby driving up health insurance costs. Let’s examine the facts: Three states, Texas, Georgia and South Carolina, passed tort reform laws that made it almost impossible to sue doctors or hospitals for emergency room treatment. Why emergency room treatment? The rationale was that ER doctors practice in an environment where information is scarce, the risk is high and technology is readily available. This is a confluence of factors that might lead to practicing “defensive medicine.” A major study, published in the New England Journal of Medicine of 3.8 million ER visits at almost 1,200 hospitals between 1996 and 2012 determined that doctors in the tort reform states, who were virtually immune to suit, ordered just as many MRIs and CT scans as doctors in the control states. Removing the risk of suit did not change behavior.

There is a second fallacy to the argument that tort reform reduces defensive medicine and thereby reduces health insurance costs. The Cleveland Clinic conducted a study, by Michael B. Rothberg, to measure how much defensive medicine exists and what it costs. The conclusion was that defensive medicine was 2.9% of the estimated $2.7 trillion US healthcare total (or $78 million). While not insignificant, that is a very small component of overall healthcare spending.

Medical Negligence

The attack here is two-pronged. The old standby, defensive medicine, is one. The second is that doctors are leaving the profession in droves and that smaller communities cannot get doctors to practice there. We have already debunked the “defensive medicine” argument. The argument for doctors leaving the profession is that frivolous suits clog the courts, so there is a need to make it harder for victims to file malpractice cases, and damage caps will reign in out of control juries who were awarding lottery-size sums to victims.

Let’s address doctors leaving the profession. Despite the claims of the AMA and state medical societies, the number of medical professionals in the United States continues to grow. And when it comes to access problems, the U.S. General Accounting Office finds those claims to be false or wildly exaggerated. Some rural and poor urban areas are underserved. Such areas often have trouble attracting other professionals too. In fact, the Counsel of Graduate Medical Education has opined that the relative shortage of health professionals in rural areas of the US is one of the few constants in any description of the US medical care system over the last half-century or more.

Let’s turn to frivolous lawsuits and out of control juries. Frivolous cases are cases that shouldn’t have been brought at all or that are rarer than most tort reform advocates admit. Studies have documented that the majority of such suits do not result in a payment to the plaintiff. And the contingency fee system helps weed them out. If a lawyer believes that he or she won’t get paid, they will not pursue the case. James Gattuso, then of the conservative Heritage Foundation, argued in an article for The Wall Street Journal titled “Don’t Rush to Condemn Contingency Fees,” that the contingency fee system ensures that injured persons who could not afford legal representation otherwise can obtain access to the legal system and also screen “baseless lawsuits” out of the system. The converse is the bigger problem—genuinely injured patients who can’t get redress because the courthouse doors have been shut to them.

Out of control juries are also a myth. A U.S. Department of Justice study found that the median medical malpractice award in a jury-decided case was $400,000. In bench trials where the judge serves as the trier of fact, the median award was $631,000. And judges are more likely to find in favor of the plaintiff. Plaintiffs win in tort trials 48% of the time. They are more likely to win in a court trial where the decision is made by a judge (57%). Here are the results of judge vs jury in selected types of tort trials:

  • Premises liability: judge 52%; jury 38%
  • Automobile cases: judge 63%; jury 57%
  • Medical malpractice: judge 38%; jury 23%
  • Products liability cases: judge 70%; jury 31%

Dr. David Studdert led a team of 8 from the Harvard School of Mental Health, Brigham and Women’s Hospital and the Harvard Risk Management Foundation in a study of 1,452 medical malpractice lawsuits. Ninety percent of the claims showed evidence of medical injury, which means they were not frivolous. Sixty percent of the cases were from physician wrongdoing. In a quarter of the claims, the patient died. When baseless medical malpractice suits were brought, the courts threw them out. In six cases where no injury could be detected, only token compensation was received. Where an injury resulted in treatment, but evidence of error was not clear, 145 of 515 (or 28%) received compensation. A bigger problem was that 236 cases, where there was evidence of error to patients by doctors, were thrown out of court. In the other 1,050 cases, the researchers found that the cases were decided correctly, with damage awards going to the injured and frivolous cases being dismissed.

Here’s what our nation’s trial judges think about the jury system. A 2000 survey sent to 1,000 trial judges, including every federal trial judge, revealed that:

  1. Judges have a high level of day-to-day confidence in the jury system;
  2. Only 1% of the judges who responded gave the jury system low marks;
  3. Nine out of ten trial judges, who work closely with the jury system, think the system needs only minor tinkering, at best;
  4. Overwhelmingly, state and federal judges have great faith in juries to solve complicated issues and
  5. 90% of the judges responding said jurors show considerable understanding of legal issues involved.

And finally, statistics show that juries are generally conservative and reasonable and their decisions rarely differ from what a judge would decide.

A word about punitive damages. This argument is a non-starter. Punitive damages are very rare. They are only awarded in 3.3% of all tort trials won by plaintiffs. And in 1996, the average punitive damage award was $38,000, not the millions of dollars alleged. Judges were more likely than juries to award punitive damages. Judges in 1996 awarded punitive damages in 8% of all tort trials decided by judges in 1996. As stated earlier, juries awarded punitive damages in only 3% of all tort jury trials decided.

What is really expensive in medical malpractice? It is shoddy medical care. The obsession with tort reform has slowed down patient safety initiatives. Let’s start with anesthesiology. In the 1980s, following many large awards against the specialty, anesthesiologists revamped their procedures, created compulsory monitoring, increased and improved training, limited the hours their specialists could work without rest, redesigned machines and added safety features. Within 10 years, the mortality rate went from 1 in 6,000 to 1 in 200,000. Malpractice insurance rates fell to the lowest of any medical specialty.

But the tort reformer’s success has diminished the need by other specialties to take other self-policing reforms. Continuing along this vein, hospitals are dangerous. In 1999, the Institute of Medicine at the US Academy of Science published a study entitled “To Err is Human.” This study concluded that between 44,000 and 98,000 patients were killed (and many more injured) in hospitals each year because of medical errors. That is more than in car crashes and workplace accidents combined, and does not include deaths in doctors’ offices or clinics. By 2011, a study in HealthAffairs estimated the number of avoidable deaths was probably closer to one million. Then there was the study done by Harvard Medical Practice of 31,000 medical records. The records were reviewed by practicing physicians and nurses, people who would, by and large, be sympathetic to the demands of medical practice. The records went through rounds of review and negligence was only found if two doctors working independently came to the same conclusion. Even with this conservative approach, the study found that doctors were injuring one out of 25 patients. Only 4% of those patients sued.

What is needed is a crackdown on malpractice. When the American Medical Association speaks of a malpractice “crisis”, they are referring not to the people injured or killed by medical errors or the widespread failure to discipline negligent doctors (including many repeat offenders), but rather to the doctors’ increasing malpractice insurance premiums. So, not only are they trying to get off the hook for what they’ve done, but they’re targeting the wrong group as the source of their ills. It’s time for the doctors to blow the whistle on the insurance industry and their exploitive practices, as well as on the members of their profession who violate the maxim, “First, do no harm.”

Let’s call it what it is. This is all about greed! Tort reform leads to additional profit for the insurance industry, which is precisely the reason that the insurance industry is sinking so much money into its unrelenting campaign for reform.

Property and Casualty Rates

The first paragraph in this article presented the obscene profits being generated by health and liability carriers presently.

How do insurance companies profit? Most of the profit comes from investment income. Insurance companies generate revenue in the form of premiums paid. They hold these premiums until they make a payout to or on behalf of the policyholder. Between those two events, the money being held is called the “float.” (Before people had so many options to carry money electronically, American Express made more money from the “float” on travelers checks, the time between purchase and redemption than they did from money generated from use of their credit cards.) So, the “float” is invested. When the market is strong and/or interest rates are high, the companies make a nice return on their investments. In times like these, the insurance companies may even reduce their rates to attract more premium dollars to invest. This scenario is called a “soft” market.

So, what happens when the market declines? Investment income falls. Then insurance companies raise their rates or reduce coverage. This is a “hard market.” The US economy has experienced several of those in the last 40 years. These hard markets occurred in the mid 70s, mid 80s, 2002-2003 and from 2007-2009. These were the markets where insurance rates for doctors skyrocketed. So while the insurance companies and other tort reform proponents argue that litigation, frivolous lawsuits and run-away juries are to blame for insurance premiums going up, these increases are being driven by the insurance companies’ responses to the broader economic cycle. In fact, claims and payouts stayed flat or declined in each of the “crises.” Since insurers target the civil justice system rather than the economic cycle, tort reform solutions failed to reduce insurance rates. And what was the response of the American Insurance Association when presented with this empirical data? “Insurers never promised that tort reform would achieve specific savings.”

So, what is the solution? The insurance industry needs stronger regulation. Stop the insurance industry from price-gouging their policy holders, especially when industry profits rocket upwards. Doctors should re-direct their anger at the insurance industry (How many times have we heard doctors bristle at what they consider to be “health insurers practicing medicine?” Surely, they know who the real enemy is!) and better police their profession to remove the subset of doctors who repeatedly commit malpractice. Or are the doctors, like their legal counterparts, powerless in the face of the massive donations being given to lawmakers, who are so willing to accept the largess so that they can stay in office?

Tort reform is a myth, perpetuated by greed. How can any intelligent person argue in favor of these sham laws that serve to abridge our constitutional rights? These proposed laws are just another attack on the rights of the average American citizen. Who do we want to speak for us, a jury of our peers or large companies earning obscene profits?

[1] Numbers based off the 2016 Annual Reports for these Insurance companies, which were calculated by Barry Chasen to equal a total combined net profit of $11.795B, which was rounded up to an even $12B.

Authorization Denied: When Health Insurance Becomes a Barrier to Treatment

Jul 23, 2018 | Ashley Strandjord

Nestled between the Bronx and Manhattan, the most serene location I’ve ever found in New York City is the Harlem River at 6:00 a.m. Mondays through Saturdays.

The murky water reflected the impending sunrise off its oily sheen. After attaching the riggings to the shell and climbing in, both the stillness and the serenity of the river rippled away.

I rowed for three years in college. The dreaded two-a-days workouts and indoor erg pulls were the only downside to trolling between Yankee Stadium and the Broadway Bridge. At some point during my third year, I began to notice a dull ache in my hip after practice. Nothing some rest (and ice cream) couldn’t fix. As race season ramped up, the pain intensified and was less willing to subside with my self-prescribed therapy à la mode.

I sought treatment with the athletic department’s trainer. “Just ice it and it will go away,” they said. It didn’t. Back to the trainer’s office. “Have you tried heat? It will help.” The pain persisted. I then went to my family practitioner. “Have you tried a course of anti-inflammatories?” Yes, but just like everything else so far, no relief.

In the meantime, race season had ended, finals were approaching and I found I was having trouble walking back from the subway after work. I was given a referral to see an orthopedic surgeon. After performing a few quick tests, my orthopedic surgeon told me we needed an MRI and it was possible I had torn “something” in my hip.

Jumping Through Hoops for Insurance Authorization

The MRI order was promptly denied by my health insurance company. However, they approved an x-ray of my hip. My doctor and I agreed that although the MRI was what he had ordered, I should go ahead and get the x-ray taken.

Results: “Unremarkable.” Back to the doctor so he could inform my insurance company I needed an MRI. Again, it was denied with a note indicating it was “unlikely a 22-year-old female is having difficulty walking.” However, they approved a CT scan with contrast. Not a procedure I’d ever like to repeat, but I got it done (at, of course, the facility my insurance company identified).

Back to my surgeon who said, “We still really need an MRI to see what is going on.” Turns out, the CT scan had been inconclusive. On the plus side, they had injected some lidocaine and I was feeling great! (For a mere two days.)

The MRI was finally approved and done (again at a facility identified and approved of by my insurance company). The results were in. I had “an acetabular labrum tear and possible degenerative changes.” In English, please? I tore a small piece of cartilage near the femoral head and the pelvis, and there were indications of arthritis.

I was then informed the surgery did not come with a guaranteed success story. In fact, it was unclear whether the effects of the surgery would last a few months or the rest of my life. “What about if I want to have kids?” We don’t have the research. “Will I be able to go back to rowing?” Absolutely not. “What about hiking? Walking a strong dog on a leash?” You should be okay. “Dancing? Running? Bicycling?” All of those are fine—but no yoga or Pilates. After this surgery, you will be forever restricted from those activities and anything that isolates the hip muscles and joint. I was 22 and contemplating what my life would look like with a perpetual cloud of uncertain future surgery and/or restrictions.

I went for a second opinion (as you might imagine, not covered by my insurance company) and a review of all the studies performed on my hip. I went to a prestigious hospital in New York City to consult with a doctor that spends the large majority of his time on torn acetabular labrums. It turned out to be an incredible waste of time. I was seen by the doctor’s physician’s assistant, who listened to my description of the pain and its duration. The doctor himself came in for less than four minutes. During that time, he spoke rapid-fire and there was no time for any of my follow-up questions. He told me my MRI images were “far too fuzzy to even interpret,” and, “I’d have to measure your legs if I’m going to do this surgery—it might have to be a total hip replacement, I’m not sure yet,” and, “You’ll have to get new MRIs done at the place I like down on 58th. Go there and have them sent back over to me and we’ll go from there.” And then he was gone. And so was I.

It was time to schedule surgery with my orthopedic surgeon, which my insurance company again denied. My doctor appealed the denial on my behalf, explaining I was an otherwise perfectly healthy 22-year-old who could not walk without pain.

Denied again. My surgeon called to explain the denial. He indicated that often the denials are decided by employees of the insurance company who have little to no medical training or background, but rather follow a set of parameters provided. He again appealed on my behalf, using the multiple studies as support for the surgery. At this point I was tired of the run-around and constantly having to rely on someone else to advocate on my behalf. A short time later, the surgery was finally approved.

Becoming My Own Advocate

I was elated to find out that not only was the surgery approved, but so were 24 visits to a physical therapist after surgery. The physical therapy was to be performed at a location entirely inconvenient to both my home and office locations. I did some research of physical therapy centers closer to my home and office and sought the advice of friends and officemates. I was fortunate enough to work as an administrative assistant in a law firm specializing in medical malpractice at the time—so the advice was well taken. I took that information and called my insurance company myself.

I explained that the location they had identified to attend physical therapy sessions was inconvenient and was not the location where I wanted to seek treatment. I gave them the name of the facility not two miles down the road from my office, which was accessible during my lunch hour and okay with my employer. I expressed my willingness to attend physical therapy (I really wanted to get better and get back to what I was doing) and that I took my healthcare very seriously. I was told a decision would be made but that there were no guarantees and I shouldn’t get my hopes up.

To their credit, the insurance company approved my physical therapy at the location I designated. I got the approval letter in the mail and it seemed like it was all coming together. The surgery was a few days away, and I had the physical therapy all lined up—now all I needed to do was rest, recover, and get back to my daily life. Until I scrutinized the letter—which indicated they had only approved 18 sessions of therapy at that location. I rooted through all my paperwork (and there was a mountain of it) to find the other approval letter that allocated 24 physical therapy sessions. I looked at them. And read them again. Read each one over—placed them side by side and upside-down. One said 24 sessions. The other 18. Apparently, asking to have the same treatment at a different facility resulted in the loss of 6 sessions.

I gave the papers to family members to read to ensure I wasn’t missing anything. I asked the attorneys in the firm to glance over them. Nobody could explain the loss of 6 sessions of physical therapy on the eve of surgery simply by switching locations, and I still had unanswered questions that no one seemed to be able to answer. But I knew someone who could.

A telephone call to my insurance company confirmed they had unilaterally decreased the number of sessions I needed post-surgery. I placed a call to my doctor’s office to let him know what had happened. He agreed the facility I was now going to attend was superior to the one identified by the insurance company, but there appeared to be no rationale as to why they slashed 6 sessions from my treatment. He told me not to worry—we would start with the 18 treatments, and he would prescribe more if I needed them.

The surgery was a success. I awkwardly clunked around on crutches for two weeks until my post-operative visit with the surgeon. He had the biggest smile and asked (with far too much enthusiasm) if I wanted to see the photos from the surgery. No, I did not. Turns out, it wasn’t a question; we were going to review them together. We looked at the tear—which was much worse than previously seen on the MRI. We looked at the femoral head, which had a lot of arthritic bone that was removed during the surgery. We reviewed every detail of the surgery—and I was finally given clearance to attend physical therapy and take a proper shower.

Hitting the Wall

After 18 sessions of lunch-hour physical therapy, the physical therapist and my doctor agreed I needed at least 18 more sessions to ensure proper healing and that the surgical repair would last. They both prescribed 18 more sessions. However, the insurance company had not made its decision regarding the continued treatment before my next scheduled session.

I asked the physical therapy facility if they would be able to provide treatment in the interim. They were willing to help, provide treatment and lend support wherever they could. A few days later, I received an approval letter for continued physical therapy sessions from the insurance company. Six more sessions. One-third of what had been prescribed by treating professionals.

I grumbled and fought with the insurance company, roping in my doctor and the physical therapist. The insurance company wouldn’t budge and refused additional treatments. 24 sessions in total were the most they would cover, and if I wanted to continue I certainly could—paying out of pocket, of course.

I attended my last 6 sessions, keeping in close communication with my surgeon and the physical therapist. I asked if I could have them draft and approve a home exercise program that I could do at home in lieu of paying out-of-pocket for continued visits. They both agreed this was an excellent idea—but if there was any pain I was to return to their care immediately.

Creating the Spark

While all of this was going on, I had been working in a law firm while trying to figure out whether I really wanted to go to law school. I had been working in the same firm for over seven years at that point, and I wanted to make sure that law school was really and truly my dream. Going through this experience only solidified my desire so that I could advocate for others. Along the way I learned how to effectively advocate for myself both in and out of a legal forum, and I am always enthusiastic about using my skill set to the benefit of others.

It’s been over eight years since the surgery. I can live without yoga and Pilates. My husband and I (attempt to) ride a tandem bicycle on occasion. I’ve hiked a portion of the Appalachian Trail while pregnant. I chase after my son on uneven terrain and skillfully dodge dump-trucks in my living room.

It’s no longer the dark waters of the Harlem, but I’ve found serene places all over the DMV—and I can’t wait to find more.

Useful Tips for Those Dealing With Injuries:

  • Be your own advocate.
  • Talk to your doctor and ask questions.
  • Bring a notepad with questions you have and space to write down what the doctor says.
  • Discuss your symptoms with your doctor and ensure you both have a clear understanding of the course of treatment.
  • Ask why your health insurance, or your employer’s workers’ compensation insurance (if you were hurt on the job), is denying treatment recommended by your doctors.
  • Work with your treating providers to find alternatives while you’re waiting on authorization (or if authorization is denied).
  • Be persistent. Sometimes, it will take several “nos” to finally get a “yes.”
  • If insurance is requiring you to go to a provider that doesn’t work for you, see if there are alternatives available. Do the research to find a better location that accepts your insurance.
  • Don’t be afraid to ask your doctor to advocate on your behalf for necessary treatment.

The Life-Changing Impacts of Injuries

Jul 16, 2018 | Kyle Shoemaker

Many people may know someone injured in a traumatic event, such as a motor vehicle collision or a fall. However, many people don’t, or the people they know who’ve been hurt have kept this information private. As personal injury lawyers, it is our job to help others, particularly juries, to understand the real and meaningful ways that an injury disrupts the lives of our clients, particularly when that injury is caused by another’s actions and decisions.

As anyone who commutes in the Baltimore-Washington metro area knows, rear end collisions occur every day. Sometimes, the drivers and passengers involved walk away with no problems. Other times, they are not so lucky. To illustrate the unseen effects of injury, consider this relatively simple example for a car crash involving Gary. (To be clear, Gary is not a real person, he exists only for this example). Gary is 32 years old and works as a welder for a utility company. He is driving work on an ordinary Monday morning when, while waiting at a red light, his car is rear ended. The police are called, the parties exchange information and both vehicles are able to drive away. Gary goes on to work. After all, he doesn’t feel too badly immediately following the crash, and he has bills to pay and a family to support. Since Gary works for a utility company, his work is physical. He has to move and lift heavy tools, move large metal objects, and engage in other physical activity. As the day wear on, what began as tightness in his neck and back became worse.

To an outside observer, neck and/or back pain may not seem like something that is terribly serious. Someone who doesn’t have first hand experience with this sort of traumatic injury may think that a bit of neck or back pain is no big deal. And Gary himself may not know how serious the injury is. The true severity of an injury like Gary’s may not always be apparent in the immediate aftermath of the collision.

So let’s take a look at some of the ways in which Gary’s injuries will impact his life. To begin with the broadest view: he will experience physical pain. Back and neck pain can cause even the most mundane of movements to be painful. What will that pain actually mean to Gary in concrete, real life terms? What will that mean for his relationships, his work, his hobbies, his goals? Let’s break that down in more detail.

How Physical Injuries Effect Family Relationships

Gary is relatively young at 32 years old. He has two young children: a 3-year-old boy and a 4-month-old girl. As any parent can attest, caring for young children requires a tremendous amount of work, even on the good days. Now imagine that Gary has arrived home after a long day of physical work. Even without his injury, he is tired and probably a bit sore. Layer on top of that the pain and stiffness from Gary’s injuries, and all of a sudden playing with or caring for his children is a much more difficult task. No parent wants this kind of interaction turn into a physically painful and difficult experience. A three year old may not understand why Daddy doesn’t want to pick him up when he gets home from work. Imagine how that makes Gary feel when he sees the hurt on his child’s face when he tells them no, Daddy can’t carry you.

But that’s not the only relationship that suffers when someone is injured. These days, many two-parent households are ones where both parents have to work to make ends meet. This means that both parents need to find time to take care of ordinary household chores (anything from major home repairs, to everyday tasks like carrying in groceries) in between work, sleep, and taking care of the children. When one of those parents is dealing with some kind of physical injury, that division of labor can be upset. So an injured person like Gary, who is already trying to get better, may be dealing with the feelings that come along with feeling like he is not doing his part to keep the family operating day to day. Effects such as those described above can stress on a relationship, which might already be strained thanks to the daily grind of working and taking care of young children. This isn’t to imply that Gary’s wife (or the partner of any injured person) wouldn’t be understanding in a situation like this. But even “minor” neck or back injuries can have effects which can persist. When you add the psychological stress brought on by some of the other factors discussed, even the healthiest relationships suffer.

When Injuries Prevent You from Working

How do Gary’s injuries affect his work? As I mentioned, Gary is a welder for a utility company. This means he may be working outdoors. Or maybe he works in confined locations inside power plants. He may find himself bending, crouching, or climbing. Welding is a skilled trade that is in demand in many areas. Welders have the potential to make a decent wage, but the work is physical. If Gary is temporarily placed on a limited or off work status, his family will likely face financial hardship. Only 39% of Americans have enough savings to cover a $1,000 emergency. In the D.C. Metro area, there’s no way $1,000 covers rent or a mortgage; never mind utilities, gas, food… the list goes on and on. If Gary’s off work (or “disability period”) lasts a long time, or if he loses his job entirely, that financial hardship goes up tenfold – putting even more pressure on him and his family.

But that’s not all. Gary, like many Americans, takes a certain sense of pride and identity from his work, and from his ability to provide for his family. When an injury threatens Gary’s ability to go to work and provide for his family, more than just his job is threatened. Part of Gary’s very identity is threatened, and that is something that is impossible to put a price on.

When You Can’t Do the Things that Keep You Sane

Depending on what Gary likes to do for fun, his hobbies or recreational activities could be impacted by his injuries. If Gary enjoys physical activities like cycling, or playing basketball, or bowling with friends, he may not be able to do these things at all, or might find himself dealing with even more pain if he tries. But sports aren’t the only hobbies hampered by injury. Imagine that Gary enjoys working on cars as a way to enjoy his free time. If he has a neck or back injury that causes him pain, the last thing he will want to do after a long day of work is to get under the hood of a car. Further, if Gary is unable to spend times taking part in activities with his friends, those friendships may suffer, all because Gary was in a car crash. Even relatively stationary activities like reading a book can be affected if Gary’s neck or back pain make it difficult to sit in one position for an extended period of time.

Now, one may say that it is pessimistic to assume that all of these things will happen to Gary because he got hurt. But ALL of these things don’t necessarily have to happen to one person for that person’s life to be impacted in unexpected ways due to an unexpected injury. Even if just SOME of these things occur, that is enough to change a person’s routine, or make the challenges of daily life more difficult than they were before the injury.

What About Driving Anxiety?

All of these factors can combine with each other to create a profound psychological impact on an injured person, particularly through feelings of anxiety, fear, isolation, anger, or helplessness. Gary, or any other victim of a motor vehicle collision, may experience fear or anxiety related to driving. This can be crippling to a person who has to drive to meet their daily needs, such as going to work, shuttling children around, or running other routine errands. Additionally, a person who curtails their own driving due to fear or anxiety loses the freedom of mobility that comes with driving. This can cause a person to limit their engagement with other people in their lives and potentially grow isolated. Let us assume that Gary had a rich social life before being involved in his collision. If he doesn’t like to drive to different places and if it hurts to take part in physical hobbies, that social life is going to suffer. Through his diminished ability to perform his job, his inability to participate in the lives of his children, and his loss of ability to travel or do the things that he used to do for fun, Gary is left with a much different daily life than the one he enjoyed before. For a relatively young adult in the prime of his life, the feelings of isolation, the lack of control over one’s situation, and the uncertainty about one’s recovery can be overwhelming and debilitating.

Getting Medical Help

It may go without saying, but injuries like Gary’s will probably require some kind of medical treatment in order to resolve. As alluded to above, neck or back injuries from a car crash can be relatively minor, in the case of “soft tissue” whiplash injuries such as sprains. Or the same kind of crash may result in more serious injuries such as a disc herniation or even a fractured vertebrae. More serious injuries like this could even require surgical treatment if more conservative treatment measures turn out not to be successful. Surgery of any kind is risky even under the best of circumstances. Neuro surgery or orthopedic surgery carries with it risk of side effects, potential for failure, or other complications. Some injured people have good health insurance that can help ease the burden of the cost of surgery and follow up care, but other injured people may face the uncertainty of not knowing how such a bill will be paid. Still others may undergo surgery in an emergency setting and then get stuck with a huge medical bill with no way to pay it. Even assuming that a is successful, a person with a serious injury may never fully recover and may be left dealing with the effects of that injury for a life time.

But Why Do Injured People Need Attorneys?

So why do injured people need attorneys? Well, let’s look back at Gary’s case: The insurance company for the vehicle that ran into him wants to close his claim as quickly and as cheaply as possible. Gary is not in a position to truly understand the real value of his claim and the insurance company knows this. That’s why Gary needs an experienced attorney that’s looking out for him. Obtaining representation when you find yourself in Gary’s position is not about taking advantage of anyone or anything. It is about making sure that the insurance company (which makes a profit by finding a way to not pay a fair claim value) does not take advantage of a person who is in a rough spot. That is why it is so important for someone who’s been injured in a car crash, slip and fall, or some other circumstance caused by another’s carelessness, to contact an experienced and knowledgeable personal injury attorney to determine their rights and see if they need an attorney. Make sure you talk to someone who is looking out for you, and willing to go to bat for you when the insurance company tries to play games.

If you are reading this post and you’re lucky enough to have never been injured as the result of someone else’s negligence, I hope this information can give a bit of insight into what it’s like for someone who has had their life disrupted by circumstances outside of their control. If you have been injured in a car crash, a slip and fall, or as the result of another’s carelessness, I hope this has helped you understand why its important to at least consult with an attorney to help understand your rights and what you’re entitled to.


When It Happens In Your Town: What Survivors of Mass Shooting Events Should Know About Their Rights

Jul 10, 2018 | Ben Boscolo

This post was co-authored by Elizabeth Payne-Maddalena and Benjamin Boscolo.

Recently, a mass shooting event happened at the Capital Gazette in Annapolis, Maryland, not far from our Greenbelt office. Five Marylanders and committed journalists lost their lives when a gunman opened fire on the newsroom, and two more were seriously injured. Our hearts go out to the reporters who were simply doing their jobs when the shooter targeted them.  ChasenBoscolo stands with the Capital Gazette, Sun Newspaper Group and the Annapolis community.  

As of the posting of this blog, there have been 168 mass shooting events in the U.S. just this year. Unfortunately, as Americans know all too well, these events can and will happen anywhere. This number will continue to go up as long as lawmakers choose to ignore the root cause of the problem. In the meantime, those who are left behind – survivors and family members of those lost – have a long, arduous road to recovery that goes on long after the cameras leave and the attention of our leaders moves on to the next tragedy.

Many people do not know are their legal rights in the wake of these events. These rights vary from survivors left with physical injuries and mental scars, to the families left behind. Our hope is that this blog helps people understand what their rights are as they try to cope and heal. This isn’t just meant for those impacted by the Gazette shooting, or the Great Mills High School shooting, or the survivors in Parkland; but also the people who’ll be targeted in the inevitable next one.

Red Flags Ignored

When I was in college, back in 2007, I did a research project focused on the psychological mindsets of mass school shooters. One thing I discovered, which still rings true today, is that there are almost always warning signs of the coming violence – warning signs that many people, including people with the power to prevent the attack, knew about. In all of the mass shootings I studied, I learned that for a variety of reasons, these red flags are ignored. When the people in power ignored the warning signs, the result was the shooter being allowed to carry out his plans uninterrupted.

While these institutions or businesses may not have actually pulled the trigger, their choosing to turn a blind eye to the threat make them civilly liable for their negligence. That is what creates the legal right for survivors and family members of victims to bring civil lawsuits in order to be compensated for the damages they suffer as a result of the shooting.

Who has the right to sue?

The law only gives certain people the right to recover in these kinds of situations. Generally, the only people with the right to sue are those survivors directly impacted by the event, and certain surviving family members of those killed in the shooting. For those unfortunate people who were at the place where the shooting occurred, they can only recover if they are in the “Zone of Danger.”

Survivors of the Shooting

People who were actually present when the event occurred rarely walk away unscathed. They either suffer physical injuries from being shot or, more significantly, emotional and mental trauma, such as post-traumatic stress; or both. Survivors have the right to file civil lawsuits for damages to help pay for:

  • Hospital treatment
  • Rehabilitation and medical treatment
  • Psychological counseling and treatment
  • Expenses related to permanent injuries, such as making a home handicap friendly
  • Lost income due to injuries
  • Pain and suffering – both physically and mentally

Anyone with a physical injury has a right to be compensated for these injuries. This includes any mental or emotional distress, trauma, and treatment needed. Survivors have the right to be compensated for the previously mentioned costs and effects of the shooting.

But what about people that only suffered mental distress as a result of the shooting?

This is much more complicated. Generally, D.C., Maryland and Virginia first require that that the person was in the “Zone of Danger”. This means you were there, in the immediate area of the shooting (same room/floor/office) and were actually afraid of being shot.  Whether or not a survivor of a mass shooting is in the zone of danger is a very fact-specific determination.  To make things more challenge there are little differences in the law in Maryland, D.C. and Virginia that make it very hard to really break down the Zone of Danger here.  For example, each state and the District of Columbia have different rules about whether or not a person has to display physical signs or symptoms of their mental trauma to recover.  That’s why it’s absolutely essential for a survivor left behind with mental scars from trauma to talk to an attorney who is experienced with mass shooting cases.

Physical Wounds and Medical Treatment – Who Pays?

For many physically injured mass shooting survivors, the types of injuries they suffer require immediate emergency medical treatment. They’re taken from the scene straight to the hospital, by ambulance, helicopter, or, the backseat of emergency responders’ cars. For those with only minor injuries – broken bones and concussions from trying to escape the gunman – they’ll be quickly released. But survivors who suffer gunshot wounds face a long road to recovery, one that may take months, or even years.

Either way, a trip to the hospital alone costs thousands of dollars, money most Americans simply don’t have. Survivors who needs extensive treatment are faced with tens or even hundreds of thousands of dollars in medical bills.  So who pays for it? And who should pay now?

If you’re lucky enough to have health insurance, you should absolutely use it to cover the bills now. Many people think if they think they use health insurance, they can’t claim those medical bills paid for by their insurance in their cases. That is untrue. You can still claim those medical bills. Ultimately, the negligent party should pay for the medical bills, but in order to protect yourself in the meantime, health insurance can step in and pay for the care needed for recovery.

The Scars of Trauma – Getting Psychological Treatment

Immediately after a mass shooting event, local charities and organizations do a great job offering survivors grief counseling and making sure mental health hotlines are available. But for many, regardless of whether they were physically harmed in the shooting, the mental and emotional aftereffects last far longer than a few weeks – and require more help than what these resources can offer.  Victims deal with everything from survivor’s guilt to flashbacks, nightmares, and panic attacks. Some survivors find that the mental effects can be even more devastating and harder to heal than their physical injuries.

Luckily, grief counselors and crisis hotlines are incredibly helpful for finding mental health providers that specialize in helping trauma survivors. Be sure that whoever you see is experienced in dealing with post-traumatic stress.  It is even better if they’ve helped survivors of mass shooting events before. Either way, getting help as soon as you can is extremely important to help you process and recover from the trauma you’ve endured.

Just like with medical treatment, if you have health insurance, mental health treatment should be covered.

For Those Left Behind – Wrongful Death and Survival Claims

Unfortunately, many mass shooting events result in the loss of innocent lives: children, parents, friends, co-workers, brothers and sisters taken far too soon in an act of violence. Left behind are heartbroken family members and loved ones struggling to fill the holes left in their lives. They’re suddenly planning for funerals, which, according to https://www.parting.com, cost between $7,000 and $10,000. Many victims of mass shootings are young people, meaning they hadn’t financially planned for their deaths, leaving their loved ones shouldering heavy costs. When a parent is killed, the loss of income can devastate a family. This financial loss is magnified by the sudden and violent loss of their loved one and the accompanying public attention.

In these situations, there are two kinds of claims certain family members can bring: wrongful death claims and survival claims.  Let’s briefly explore these together

Wrongful Death claims:

A wrongful death claim is a claim brought by certain family members of the departed person which allows them to be compensated for the loss of their loved one. Only certain family members have the right to bring these kinds of claims. Those who have these right depends on whether or not the victim was married and has children, as well as surviving parents, brothers and sisters.  Finally, the people who have these rights differs between Maryland, Virginia and the District of Columbia. This is another reason it is important for surviving family members to talk to an experienced, knowledgeable attorney.

Wrongful death claims allow the family to be compensated for the following losses:

  • Any medical bills for treatment to the departed person as a result of the shooting
  • Funeral expenses
  • The loss of current and future income the victim would’ve earned
  • Grief, pain and suffering that the family endures from the loss of their loved one, both past, present and in the future.

One particularly tricky part of wrongful death claims is that (generally), the law only allows one claim to be made for all the family members who have the right to bring these claims. That means that everyone who wants to bring a claim, or wants to bring a claim, needs to be part of one action. Maryland requires all of the family members with the right to be a named party in the case, even if they do not want to participate or bring a claim at all. It’s important for close family members to discuss this option together, and keep the lines of communication open. Some families pick one person to be the main point of contact for any discussions with an attorney.

Survival Claims:

The other kind of claim available are survival actions. This is for the actual pain and suffering the deceased victim suffered during and after the shooting but before they pass away. This includes their fear as they realized what was happening, as well as when they realized that they were not going to escape unscathed. If the victim was unfortunate enough to survive after being shot – even if it was for just a few minutes – these claims also allow damages for their pain, anguish and suffering during their last moments.

Unlike wrongful death cases, survival claims are brought on the behalf of the victim’s estate – the legal entity that exists after a person dies. Any compensation is then paid to satisfy any of the victim’s outstanding debts, and then to any people who get to inherit from the estate. Who runs the estate (the “personal representative” or “administrator”) and who gets to inherit depends on a couple of things. First, whether or not the victim had a will. Second, if there was no will, who the law allows to serve as a representative. The family members who can inherit again depends on the law of the state where the mass shooting event occurred and whether or not the victim was married or a parent.

The Challenge of Proving Negligence in Mass Shooting Cases

These cases aren’t easy. There are a lot of weird legal nuances, as well as factual, evidentiary, and societal hurdles that survivors and the families of the victims have to face. We do not want to discourage anyone from exploring their rights, we just want to be completely honest and candid.

We’ve already hinted at some of these problems: proving that the survivor was actually in the zone of danger; overcoming laws limiting the kinds of actions survivor with only psychological injuries can bring; making sure all the right people are named and involved in wrongful death lawsuits. But there are a couple other big issues that we haven’t talked about.


Ok, so, as we mentioned above, these cases center around the ignored red flags around the shooter and his behavior before the shooting occurred. This brings up an obvious point: we not only have to prove that these red flags existed, we also have to prove that the entity we think is responsible knew about these red flags. Then we need to prove that the responsible entity chose to ignore the red flags, allowing the shooter to take his plans and turn them into a tragic reality.

We also have to prove that the responsible entity that knew about the red flags had a legal responsibility to protect the people who were eventually targeted. Not a moral responsibility, but a legal one. This is a very fact-specific determination (like so many other things in these cases) and is something an experienced attorney can definitely help you figure out.

Suing the Shooter Directly

There’s a very obvious party we haven’t talked about yet: the shooter. After all, he’s the one who pulled the trigger, he’s the one who chose to take the lives of innocent people.  Why aren’t we going after him?

The very simple reason is that these cases – meaning civil cases – only allow us to get our clients monetary damages. That’s the way the law works. Period. So, when there’s no money available to get – these cases are just simply not worth our clients’ time. It is not worthwhile for them to go through years of litigation (yes, we do mean years) to get nothing but a piece of paper in the end saying they won. There’s no question of who was in the right or the wrong here: we all know the shooter did something unspeakably evil.

So when we sue a shooter, unless they were a multi-millionaire, there’s nothing for our clients to collect. Homeowner’s insurance doesn’t cover these cases. Their contracts specifically deny coverage for intentional crimes like this.  That’s why we’re not talking about suing the shooter themselves: because we don’t want to force survivors and grieving family members to go through all this for nothing in the end.

The other reason is that when an entity picks to ignore a red flag, they are responsible. They made a choice, and then decided for some reason not to warn anyone, not to do anything to try to stop the shooter, limit the risk he prevented, or add extra security or safety to keep people safe. They didn’t pull the trigger, but their silence makes them complicit.


One of the most important things to remember is that depending on the situation and where the shooting took place, there may be laws in place that shield those at fault from civil liability. This is called “immunity”, and who has immunity depends on what state the shooting occurred in. This is a very fact-specific determination, and is why it’s important for survivors and family members to talk to experienced lawyers who know what to look for.

One group of companies that families and survivors often believe should be held responsible are gun manufacturers. Unfortunately, Congress passed a law giving gun manufacturers total immunity from civil lawsuits, meaning these companies are legally shielded from responsibility. The only way that will change is if the law itself is changed.

If you have been the victim of or lost a family member to a mass shooting, it is important for you to contact a trial lawyer who is experienced in handling cases arising out of mass shootings. No matter what, we hope this blog has helped you get a better idea of what rights you have, legally, as you begin the long process of picking up the pieces left behind.

Protecting the Shield: Where the NFL Got Authority to Suspend Ezekiel Elliott and Why It Took So Long

Jun 18, 2018 | Alexander Rogosa

On August 11, 2017, the National Football League (NFL) and NFL Commissioner Roger Goodell issued a six-game suspension to star running back Ezekiel Elliott, concluding their investigation into his alleged domestic violence. On November 9, 2017, Ezekiel Elliott began serving that suspension in Week 10 of the NFL’s season. Whether you follow football or not, it was nearly impossible to ignore the news coverage of this drawn-out dispute, but how we got from point A to point B still has many people scratching their heads. To understand this whole case, it’s necessary to back up a few years and compare it with other recent legal battles the NFL has fought with its players. I’ll guide you through what happened, why it matters and what it means for the future.

The Case Against Elliott

While the three-month dispute over Elliott’s suspension felt interminable to many, his case actually began back in July 2016, and the foundations of the legal suit trace back still further. It was on July 17, 2016, that Ezekiel Elliott first reportedly had an altercation with his then girlfriend, Tiffany Thompson, and there were subsequently two more instances over the next week that the NFL investigated.[1] While a police report was filed in Columbus, Ohio, on July 22, 2016, the Columbus City Attorney’s office ultimately determined not to prosecute the matter.[2] The NFL conducted its own investigation of the case, led by former assistant district attorney Kia Roberts, which they released concurrently with the publication of their penalty on August 11, 2017.[3] This investigation and Elliott’s six-game suspension were issued by the NFL under the terms of its updated Personal Conduct Policy that the NFL announced on December 10, 2014. This policy change was a reaction to two similar scandals the NFL confronted that year, and the policy established new case review procedures, harsher penalties for violations and community resources meant to prevent such situations.

How is the NFL able to regulate player conduct?

The authority of the NFL to discipline players comes first and foremost from the collective bargaining agreement (CBA) that the league and its players negotiate every few years. In addition to disciplinary procedures, this agreement regulates issues such as player wages, hours, working conditions and a myriad of other issues pursuant to the National Labor Relations Act.[4] The most recent NFL collective bargaining agreement went into effect in 2011 upon the resolution of an NFL lockout, and will last through the 2020 season. Article 46 of the collective bargaining agreement between the NFL and the National Football Players Association (NFLPA), which governs personal conduct, does not include a “just cause” provision for penalties imposed by the commissioner.[5] The absence of a “just cause” provision means that the NFL is not entirely bound by the standards of industrial due process as they relate to “double discipline” and “disparate treatment,” but the league must still be fair and consistent in its disciplinary decisions.[6] Legal challenges to the league’s discipline by individual players or by the NFLPA must demonstrate that the punisher abused their discretion in reaching a penalty that was arbitrary and capricious. [7] The events of the past few years should make the disciplinary powers of the commissioner a more contentious topic in the next round of negotiations than it ever was before.

Commissioner Goodell announced the first iteration of the Personal Conduct Policy in April of 2007, with the support of then NFLPA head, Gene Upshaw, as part of a sweeping move to resuscitate the League’s image following a series of high-profile player arrests. When issuing the first two punishments to Pacman Jones and Chris Henry, Goodell explained “your conduct has brought embarrassment and ridicule upon yourself, your club and the N.F.L., and has damaged the reputation of players throughout the League … You have engaged in conduct detrimental to the N.F.L. and failed to live up to the standards expected of N.F.L. players.” The Commissioner’s statements illuminate the league’s goal of protecting its brand image, which is instructive for how the court of public opinion can influence their assessment of penalties.

The Cases That Came Before Elliott’s

Since 2007, the NFL has issued numerous suspensions pursuant to its Personal Conduct Policy, with the two main precursors to Ezekiel Elliott’s case being those of Ray Rice and Adrian Peterson in 2014. While many also analogized the situation to Tom Brady’s protracted legal battle with the NFL during 2015 and 2016, the uniqueness of that case’s facts do not provide as much insight as the similar offenses of Rice for domestic violence and Peterson for child abuse. For those who recall those suspensions and the litigation that followed, one key difference likely jumps out: both Ray Rice and Adrian Peterson won their court appeals of the NFL suspensions. Why did they succeed where Elliott failed? Well, the NFL learned something from those missteps, addressing some in their new 2014 policy, and others as Elliott’s case unfolded.

Ray Rice

On February 15, 2014, Ray Rice hit his then fiancée, Janay, in the elevator of an Atlantic City hotel.[8] Ray Rice was subsequently indicted, and under the 2007 Personal Conduct Policy, the NFL needed to wait until all criminal investigations were resolved before issuing any discipline. [9] That is no longer the case. The NFL now conducts more thorough investigations of their own and can react to situations as quickly or as slowly as it pleases, irrespective of criminal cases.[10] When the NFL and Commissioner Goodell first assessed Ray Rice’s case, they issued a two-game suspension. At the time, that matched the harshest penalties ever imposed upon a first-time domestic violence offender.[11] Some expected a harsher penalty and were disappointed by the league’s response, but that outcry grew tenfold when a second video of the blow itself came to light on September 8, 2014. [12] Commissioner Goodell suspended Ray Rice indefinitely in response, claiming that the video displayed a “starkly different sequence of events” from what Rice stated at their June 16, 2014, meeting.[13] When the case reached Judge Jones, she felt that an indefinite suspension for Rice was unlikely to qualify as an abuse of discretion, if that was the initial discipline issued.[14] She came to that conclusion despite evidence that a domestic violence situation never resulted in more than a two game suspension before. However, the indefinite suspension was not the only issue up for review, but also the Commissioner’s determination to increase his initial punishment. Judge Jones ruled that “Rice did not mislead the Commissioner and because there were no new facts on which the Commissioner could base his increased suspension, [she] found that the imposition of the indefinite suspension was arbitrary.”[15] In future cases, such as Elliott’s, the NFL would spend significantly more time and money investigating matters before levying a penalty. The league would also err on the side of harsher penalties from this point on, since they maintained authority to reduce penalties if they chose, but now had a limit on their ability to increase penalties.

Adrian Peterson

On November 4, 2014, Adrian Peterson pled no contest to a misdemeanor assault charge for excessively disciplining his four-year-old son by beating him with a stick.[16] In response to public outcry over this example of child abuse, on the heels of Ray Rice’s domestic violence scandal, Commissioner Goodell chose to suspend Adrian Peterson for the remainder of the NFL season.[17] The length of Peterson’s suspension, while longer than previous suspensions for similar cases, was not the basis of 2014’s second high-profile grievance that the NFL Players Association filed against the league. The union argued this case on behalf of Adrian Peterson because he supposedly reached an agreement with the league that stipulated he could return to playing once his legal case concluded if he accepted placement upon the NFL Commissioner’s Exempt List during the interim.[18] Peterson played the first game of the 2014 NFL season prior to his indictment and the Minnesota Vikings originally announced that he would return for the third game of the season after his release on bond from Montgomery County.[19] The announcement created a whirlwind of disapproval, coming from as high as the governor of Minnesota and U.S. Senators, while numerous corporate sponsors pulled their support.[20] The League helped the Vikings quickly reverse course by negotiating Peterson’s placement on the Commissioner’s Exempt List, giving him full payment but precluding him from playing while his case resolved.[21] Judge Doty concluded, “the Court finds no valid basis to distinguish this case from the Rice matter,” and overturned the suspension, deeming it was another example of the league changing its initial decision about how they would discipline a player.[22] After a second straight defeat, the League needed to change tactics to put themselves on safer footing.

How the NFL Adapted After the Rice and Peterson Cases

The NFL would no longer be in the business of cutting deals with organizations or players. They still expected full cooperation from players during investigations but now made no offers in return. In fact, since the cases of Ray Rice and Adrian Peterson, the league has rarely tipped its hand about potential punishments until the date it is officially announced. This is likely how we arrived at the Cowboys owner, Jerry Jones, telling reporters on July 23, 2017, that domestic violence would not be an issue with the NFL’s yearlong investigation and that he did not expect Elliott to receive any suspension. This was barely two weeks before the Commissioner issued the six-game suspension.

During public outcry about Ray Rice’s second video, Commissioner Goodell sent a letter to the NFL Owners on July 15, 2014, writing that he “didn’t get it right” and was changing the Personal Conduct Policy from one that contained no minimum suspension for first time domestic abusers to a presumptive six-game suspension.[23] The updated Personal Conduct Policy with this specification went into effect on December 10, 2014, after a vote of approval by the thirty-two teams. The suspension Goodell mentioned for first time offenders was the same amount levied against Ezekiel Elliott in 2017.

What Happened in Ezekiel Elliott’s Case

Elliott appealed his suspension first within the NFL and, pursuant to the conduct policy, it was heard by Commissioner Goodell’s designee, Harold Henderson, on August 29, 2017.[24] In years past, a suspension appeal often meant a reduced sentence and that everyone would move forward, but after two high-profile losses, the League needed to show it meant business. Its revised policy put the League on stronger footing to hold its ground. The appeal hearings lasted two and a half days, and with the regular season only ten days away, Elliott filed a petition in the Eastern District of Texas to vacate the pending decision.[25] The argument against the suspension was predominantly that the suspension and arbitration processes were unfair because the review was incomplete after certain pieces of evidence and potential witnesses were barred from consideration. The NFL relied upon the broad disciplinary powers provided to it in the collective bargaining agreement, and the later drafted Personal Conduct Policy, to review whichever evidence it deemed relevant and asserted that those requirements were met during this process.[26] Elliott also filed his first motion for a temporary restraining order of the suspension.

A temporary restraining order (TRO) in this case provided for an emergency hearing to prevent the suspension from going into effect. To secure that ruling, Elliott needed to demonstrate that he would suffer immediate, irreparable injury unless the order was issued. In Elliott’s case, the potential for irreparable harm was always pretty clear with the season so close to starting. Waiting for the court to schedule a full hearing on the merits would mean that Elliott was forced to miss games and effectively serve part of his suspension before the court ruled on its legality. While appealing in the Eastern District of Texas, the NFL’s arbitrator, Harold Henderson, issued his ruling on September 5, 2017, that the six-game suspension would stand, and the NFL filed in the Southern District of New York, where the arbitration was held, to get an order affirming its decision.[27] The Texas judge granted Elliott the TRO on September 8, 2015, and the NFL appealed to the U.S. 5th Circuit Court on the grounds that Elliott filed this case prematurely because he opposed the arbitrator’s decision before finding out what it was.[28] On October 12, 2017, the 5th Circuit agreed with the NFL, rescinded the TRO, and ordered the District Court in Texas to dismiss the claim, which temporarily reinstated the suspension.[29]

On October 16, 2017, Elliott filed in the Southern District of New York to get another TRO issued, while in the meantime he was unable to practice or have contact with coaches.[30] The Court held a hearing the following day and the judge granted a TRO, thereby allowing Elliott to play in the next 2 games because the TRO was effective for fourteen days, as most are. On October 30, 2017, Elliott had another hearing before the Southern District to determine whether they would issue the one-time extension of their TRO for his case, but this request was denied.[31] Extensions to a TRO are given out sparingly since they are intended to be a short-term stopgap before a more developed review of the case takes place through a petition for a preliminary injunction. A preliminary injunction, unlike a TRO, can stay in place up until a case gets to trial, but it carries an additional burden to the petitioner. Along with showing irreparable harm, petitioners must demonstrate it is more likely than not that they will win the case at trial to receive a permanent injunction.

Elliott applied for such a preliminary injunction with the U.S. 2nd Circuit Court of Appeals and on November 3, 2017, they issued an administrative stay postponing the suspension yet again until they could conduct a hearing on his request.[32] On November 9, 2017, the 2nd Circuit denied his motion for a preliminary injunction, leaving him with few legal options to avoid serving the six-game suspension.[33] Why did they reject his request? While the irreparable harm analysis still cut in Elliott’s favor, the Court supported the NFL’s position that it had broad authority over what evidence to consider in levying suspensions and what the appropriate severity should be.[34] After the ruling by the 2nd Circuit’s three judge panel, Elliott had exhausted his guaranteed appeals under the law and only had two immediate options. He could appeal en banc to the 2nd Circuit and have all of its judges sit and rehear the request, or he could appeal directly to the U.S. Supreme Court. Neither court was obligated to accept his request to consider the issues, so on November 15, 2017, Elliott announced that he would give up his fight against the suspension and serve the remaining games.[35]

What This Means for Future Cases

Elliott’s acceptance of the suspension occurred at the same stage of the case as when Tom Brady elected to discontinue his appeal. After a couple losses seemingly chipped away its authority, the NFL had won two high-profile cases in a row—that is, if you consider it winning to have a multi-year process drag a prominent league star through extensive legal proceedings for them to eventually miss a quarter or more of your sports season. Ultimately though, these battles were as much for the future of League discipline as they were for the individual cases. The League needed the courts to reassert its broad authority under the CBA and its Personal Conduct Policy to hopefully ensure smoother disciplinary resolutions in the future. After getting that affirmation, the NFL Players’ Association will likely strike back through their negotiations on the next CBA, which must be ratified for the 2020-2021 season, rather than continued challenges in court. With a number of contentious issues set for this next negotiation, including revised profit sharing, the right of players to protest, concussion concerns, and guaranteed contracts, the Personal Conduct Policy and player discipline may become another issue pushing the league towards a work stoppage. However, both sides seem to desire a smoother resolution to future disciplinary disputes like Ezekiel Elliott’s, so perhaps that serves as a bridge or a bargaining chip to weigh against the NFL’s many other labor issues.

[1] See John Breech Lead NFL Investigator In Ezekiel Elliott Case Reportedly Recommended No Suspension, CBSSports.com, (September 1, 2017), https://www.cbssports.com/nfl/news/lead-nfl-investigator-in-ezekiel-elliott-case-reportedly-recommended-no-suspension/

[2] Id.

[3] Id.

[4] See 29 U.S.C. § 159(a).

[5] See NFL CBA 2011-2020, Art. 46 §1(a) available at https://nfllabor.files.wordpress.com/2010/01/collective-bargaining-agreement-2011-2020.pdf.

[6] Ray Rice, Tr., 164:25-165:6 (Goodell); Ray Rice, Tr., 385:2-386:13 (Birch); see also Bounty, 16 Final Decision 4 (Dec. 11, 2012); Ray Rice, Exhibit 33.

[7] Id.

[8] In the Matter of Ray Rice, Decision, 1 (Nov. 28, 2014).

[9] See National Football League, 2008 Personal Conduct Policy 1-3 (2007), available at http://www.prostaronline.com/draftee/personal_conduct_policy.pdf.

[10] NFL Communications, Key Elements of New Personal Conduct Policy, NFLcommunications.com, (Dec. 10, 2014), https://nfllabor.files.wordpress.com/2014/12/12-10-14-key-elements.pdf.

[11] See In the Matter of Ray Rice, Decision, 2 (Nov. 28, 2014).

[12] See id.

[13] Id.

[14] See Ray Rice, Decision, 15.

[15] Id. at 18.

[16] Id.

[17] Id.

[18] See id.

[19] Molly Bloom, Adrian Peterson’s Suspension: What You Need To Know, MPRNews.org, (Nov. 18, 2014, 10:33pm), http://www.mprnews.org/story/2014/11/18/adrian-peterson.

[20] Id.

[21] Id.

[22] NFLPA v. NFL Management Council, CASE 0:14-cv-04990-DSD-JSM, 13, (USDC Dist. Minn. 2015).

[23] Ray Rice, Exhibit 42; Ray Rice Tr. 204:3-21.

[24] See Kate Hairopoulos Ezekiel Elliott Timeline: The Suspension, The Appeal, And Where The Cowboys RB Stands Now, Sportsday.Dallasnews.com, (November 15, 2017), https://sportsday.dallasnews.com/dallas-cowboys/cowboys/2017/11/09/ezekiel-elliott-timeline-suspension-appeal-cowboys-rb-stands-now

[25] Id.

[26] See Kate Hairopoulos Ezekiel Elliott Timeline: The Suspension, The Appeal, And Where The Cowboys RB Stands Now, Sportsday.Dallasnews.com, (November 15, 2017), https://sportsday.dallasnews.com/dallas-cowboys/cowboys/2017/11/09/ezekiel-elliott-timeline-suspension-appeal-cowboys-rb-stands-now

[27] Id.

[28] Id.

[29] Id.

[30] Id.

[31] Id.

[32] Id.

[33] Id.

[34] See Jeanna Thomas Ezekiel Elliott Suspension Back On Effective Immediately With 2nd Circuit’s Latest Ruling, SBNation.com, (November 9, 2017), https://www.sbnation.com/2017/11/9/16603064/ezekiel-elliott-6-game-suspension-domestic-violence-appeal

[35] See Kate Hairopoulos Why Ezekiel Elliott Withdrew Appeal Of Six Game Suspension; What’s Next For The Cowboys RB, Sportsday.Dallasnews.com, (November 15, 2017), https://sportsday.dallasnews.com/dallas-cowboys/cowboys/2017/11/15/ezekiel-elliott-withdrawing-appeal-six-game-suspension-according-report

Easy Rider: Contributory Negligence & The Motor Vehicle Collision Recovery Act of 2016

May 21, 2018 | Cameron Thompson

Picture this: it’s a sunny Monday morning in January. You wake up in your tiny Adams Morgan apartment, ready to start a new week after a busy holiday season. You need to get the morning briefing printed and on your boss’s desk, so you rush to throw on your clothes, snag a quick Greek yogurt on your way out the door and book it to the bike-share at 15th and Euclid. You hop on your mighty steed and pedal south, mentally going over the bills on the floor today and thinking about whether you will be able to make it to Franklin Hall for trivia tonight. As you come up on the intersection of 15th and U, you see you have a yellow light and pedal faster, quickly glancing at your phone to check the traffic ahead. As you cross the intersection, you are suddenly thrown from your bike by the crunching impact of a car plowing into you as it makes a left onto 15th. The last thing you hear before you black out is the siren of the ambulance on its way.

You wake up in the hospital a few hours later, IV drips hooked up to your arm. The doctor tells you that you were very lucky, as the impact with the car and the pavement didn’t seriously injure your head or neck, though your helmet was cracked in half. You did, however, sustain several broken ribs, a shattered femur and a concussion. You spend the next several days recuperating in the hospital, racking up medical bills and trying to keep abreast of the work coming in from your oh-so-helpful bosses. When you finally get out, you are told that your right leg will never be the same and that the medical bills aren’t quite covered by your insurance. You check the police report and learn that the driver of the other vehicle was cited for reckless driving. Frustrated, you find the number for driver’s insurance company and call them, only to have your claim denied. You seek out legal representation but discover that no lawyer in town will take your case. Has the world gone mad?

What the heck is contributory negligence?

You, my poor unfortunate soul, are the victim of a legal doctrine known as contributory negligence. Contributory negligence, or “contrib” as it is known in some legal circles, is an old and extremely harsh rule that once applied to all negligence claims in the District of Columbia. It is normally raised as a defense to a negligence claim and states that a person is barred from recovery if there is evidence that the plaintiff’s negligence was a substantial factor in causing the injury, even if the defendant was also negligent, so long as the plaintiff’s negligence contributed in some degree to the injury.[1] The burden rests on the defendant to prove the plaintiff’s contributory negligence, which must be done by a preponderance of the evidence (more likely than not).[2] Attorneys generally refer to this as the “1% rule”: if you, as the plaintiff, are found to have contributed even 1% to your injury, then you will be unable to recover any compensation whatsoever.[3] This doctrine frequently results in extremely harsh results for plaintiffs, particularly in the case of automobile collisions with pedestrians, cyclists and other unprotected victims.

Such collisions are not an uncommon occurrence. In 2014 alone there were 844 crashes involving people riding bicycles in the District of Columbia, with 669 of those involving injuries.[4] Many of those injured will receive little to no compensation to cover medical bills, lost wages and damages to their property. The system fails them at every level, and the contributory negligence rule is a big part of that failure.

Just Thank the British

Contributory negligence is an old doctrine with its origins, like the majority of American jurisprudence, in British common law. The doctrine was first used in the 1809 case of Butterfield v. Forrester.[5] In that case, the defendant Forrester placed a wooden pole against the road next to his house as he was repairing it. Butterfield, the plaintiff, was riding quickly down the road at around 8 p.m. and, in the twilight, did not see the pole. He struck the pole squarely and was thrown from his horse, resulting in significant injuries. At the trial, the judge instructed the jury that if someone riding with reasonable care could have avoided the pole, and if the jury found that Butterfield didn’t use reasonable care, the verdict should be for Forrester.[6] The jury found that Butterfield had not used reasonable care, and thus the doctrine of contributory negligence was born.

American law imported the contributory negligence rule along with the rest of British common law, and the majority of states in the country adhered to this doctrine for many years. However, in 1908 the U.S. Congress chose the alternative doctrine of comparative negligence when it enacted the Federal Employer’s Liability Act.[7] Comparative negligence generally requires a much greater amount of negligence on the part of the plaintiff to permit a bar on recovery. State legislative and judiciary bodies soon began to follow suit, with all but four states adopting some form of comparative negligence by the early 1990s. Unfortunately for those of us in the DMV, the five remaining holdouts are Maryland, Virginia, North Carolina, Alabama and the District of Columbia, which have all stubbornly maintained pure contributory negligence rules since the 1800s.

Last Clear Chance: A Very Small Shield Against Contributory Negligence’s Sword

The District of Columbia, unlike several of the other recalcitrant jurisdictions on this list, adds another wrinkle into the mess: the “last clear chance” doctrine. According to this doctrine, there exist certain circumstances where a plaintiff, who would otherwise be barred from recovering by contributory negligence, may recover damages.[8] In order for the doctrine to apply, the plaintiff must have been in a position of danger caused both by the defendant and the plaintiff, and the plaintiff is oblivious of the danger, or is unable to extract themselves from it.[9] While in this position, if the defendant was aware (or should have been aware) of the plaintiff’s danger and inability to rescue themselves, and the defendant fails to exercise reasonable care in avoiding injury to the plaintiff, then the plaintiff may recover despite having been contributorily negligent.[10] While this doctrine does provide a way to avoid some of the the harsh results of contributory negligence, it is a very narrow doctrine that can be difficult to apply practically in a case. 

Fisher v. Latney, a recent case from the D.C. Court of Appeals, provides a clear picture of just how narrow this doctrine can be.[11] In that case, the plaintiff was driving on a three-lane road in the far-right lane.[12] The plaintiff proceeded to change lanes from the right lane to the left lane, merging into the lane in front of the defendant’s vehicle.[13] The left bumper of the plaintiff’s vehicle collided with the front of the defendant’s vehicle and, as a result of that collision, the plaintiff was injured.[14] At trial, the plaintiff acknowledged that there was evidence that he was contributorily negligent, but asked the judge to permit the jury to find that the defendant was liable under the last clear chance doctrine.[15] The judge refused and, on appeal, the Court of Appeals upheld his decision. It explained that its reasoning in the case was twofold: first, there was no evidence that the Plaintiff was unable to save himself from the danger that he had put himself in by changing lanes suddenly; and, second, there was no evidence that the defendant was in a position to save the plaintiff, as the plaintiff’s lane change was sudden and unexpected.[16] It is reasoning like this that prevents reliance on the last clear chance doctrine from being a viable option for D.C. plaintiffs, as it doesn’t take much for a court to determine that a Defendant had no opportunity to avoid the crash and save the plaintiff.

A New Hope for Carless Washingtonians

Fortunately for those of use who ride, walk, or suffer through the endless stream of maintenance closures, mismanagement and track fires that are the D.C. Metro, the District of Columbia city government has heard the cries of the carless masses and made a significant change. On November 26, 2016, Mayor Muriel Bowser signed into law the unanimously-approved Motor Vehicle Collision Recovery Act of 2016. The Act carves out a broad exception to the rule of contributory negligence in cases involving a motor vehicle and pedestrians, bicyclists or any other non-motorized users (like skateboarders, Segway-riding tourists or people who still think hoverboards are cool[17]). This exception allows a plaintiff utilizing any non-motorized method of transportation to recover a portion of the total verdict in a case, even if they are found to have been contributorily negligent, so long as they are found to be 50% or less at fault in a collision with a motor vehicle.[18] The portion of the verdict recoverable will be equal to the amount by which the defendant is found to have been at fault in the case, so long as the plaintiff is 50% or less at fault.

So, for example, if a jury finds that an injured bicyclist was 10% negligent in an accident, that bicyclist would recover 90% of the verdict. If the bicyclist were found to be 51% at fault, however, the bicyclist would be found to be contributorily negligent and would recover nothing. This new law thus changes the way contributory negligence can be used, confining its applicability to situations where a plaintiff’s negligence is greater than the aggregated total amount of negligence of the defendant(s). It is also worth noting that the bill expressly preserved the last clear chance doctrine, allowing a contributorily negligent plaintiff to still recover if the defendant was in a position to observe the plaintiff’s danger and had the opportunity to avoid the harm. As such, the District now provides greater protections to pedestrian and bicyclist plaintiffs than Maryland or the Commonwealth of Virginia.

Let us take the case of our hapless Hill staffer from the beginning of this article as an example of this in action. In his case, the fact that he failed to remain aware of his surroundings while passing through the intersection on a yellow light and, more importantly, that he was actively looking at his phone when he was stuck, would raise significant contributory negligence concerns in the minds of any attorney considering their case. This would result in said staffer not receiving the just compensation that he would otherwise be owed and finding himself buried in medical bills. But, under the Motor Vehicle Collision Recovery Act, that same injured staffer (who, remember, was NOT faulted by the police for the crash, while the driver was charged with reckless driving) would likely have a strong case and be able to recover the compensation he is owed.

It’s Time to Update the Law

The District’s decision to make this change to the law has brought it in line with the majority of the country and does much to provide much needed protections to those in the District who are most at-risk for serious injury in a car crash: namely, those who are not protected from injury by a car. While this is a significant step in the right direction for the District, we should also encourage this city and the surrounding states to move forward from harsh, old standards and place all negligence cases under the modern rule of comparative negligence, just like the 46 other states in the U.S. Until then, the District’s many bikers, metro-riders, and pedestrians may travel with the assurance that, if they are struck by a motor vehicle in D.C., they have the best legal protection in the DMV.

[1] Sinai v. Polinger Co., 498 A.2d 520 (D.C. 1985)

[2] Aetna Casualty & Surety Co. v. Carter, 549 A.2d 1117

(D.C. 1988).

[3] Gen. Elevator Co. v. D.C., 481 A.2d 116, 119 (D.C. 1984)

[4] See DDOT Traffic Safety Statistics Report for the District of Columbia(https://ddot.dc.gov/sites/default/files/dc/sites/ddot/publication/attachments/2012-2014%20Annual%20DC%20Crash%20Analysis%20Report.pdf)

[5] Butterfield v. Forrester, 11 East. 60, 103 Eng. Rep. 926 (K.B. 1809)

[6] Id.

[7] The Federal Employers’ Liability Act (FELA), 45 U.S.C. § 51 et seq. (1908).

[8] Andrews v. Wilkins, 934 F.2d 1267 (D.C. Cir. 1991).

[9] Id.

[10] Id.

[11] Fisher v. Latney, 146 A.3d 88 (D.C. 2016)

[12] Id.

[13] Id.

[14] Id.

[15] Id.

[16] Id.

[17] They are not.

[18] See DC Code § 50-2204.52.

A Voice to Be Heard

May 14, 2018 | admin

by Nyasha A. Largen

It’s nearing the middle of 2018…18 years into the 21st century, and 170 years since the birth of the women’s rights movement. Yet, in the very arena that plays the most pivotal role in enforcing the rights of others, the disparity between men and women is ever more clear: women account for drastically fewer numbers of trial attorneys than men. What gives? Actually, for me, the more pressing question is, “What can be done about it?”

I want to be a lawyer when I grow up!

….and now I am all grown up, and I’m an attorney. But the reality of being a female attorney, and an aspiring female trial attorney, has brought some disturbing facts to light. Women attorneys have been found to be lead counsel for private parties in litigation roughly 20% of the time, and only about 17% of partners in big law firms are women. These are alarming figures considering that now, more than ever before, women have been graduating from law school at rates almost on par with men. There have been several theories put forth that may contribute to this phenomenon, some of the most prominent being:

  • Implicit bias in and out of the courtroom;
  • Clients’ views of the competency of a female attorney;
  • Family caretaking and its apparent clash with the culture of some firms;
  • Managing expectations regarding progress and advancement in a male-dominated field.

I think most would agree that intelligence is not the issue (and if you disagree, I dare you to tell me to my face). In fact, women historically have had a lot to offer in the workplace—the most obvious being diversity in thinking, more creative energy and a more relatable team, as you now have another gender to appeal to those in the jury pool of that similar gender.

What then, is the problem? The data and studies point to societal and structural factors that are stumbling blocks in the road to success as a female attorney. A man is three times more likely to be lead counsel in a civil case than a woman. Even more daunting is the fact that you are even less likely to be on the team trying a case if you are a woman. Furthermore, the numbers for women that are lead counsel in a case favor the representation of defendants (as opposed to representing plaintiffs).

How that translates to me is that the road to female lead counsel, while navigable, requires you to be sharper than your male counterparts to get there. Ladies, are we up for the challenge?

The Female Touch

Even with women trailing behind their male counterparts when it comes to courtroom presence, there are some unique benefits to having women on the legal team:

  • Women connect with jurors better than men;
  • We are viewed as more credible and trustworthy;
  • We tend to be more over-prepared than underprepared; and
  • We listen better (after all, we have learned to listen all our lives).

I can foresee a myriad of instances where clients may feel more comfortable with the female touch—cases where the client’s injury is one acutely specific to a woman, for example, a lawsuit for a woman scarred from a breast reduction surgery or a woman who may have experienced a wrongful birth injury, among other possible scenarios.

While acknowledging our benefits, we still need to look at the harsh realities that give rise to the disproportionate gender representation in the courtroom. Some factors that contribute to the inequity are outside of the immediate control of women, such as implicit bias (which can affect the types of work women receive), performance evaluations and the ability to meet billable hour requirements. Others are more readily in a woman’s control, such as taking time off to tend to family responsibilities. There are also some stereotypes that reflect the double-standard that still exists between the sexes—for example, the belief that a woman is prone to too much emotion, while a man who exhibits emotion on the same level may be seen as “passionate” about the case. This is especially true when it comes to the inevitable accusation of being that “angry, aggressive woman” when you raise your voice, but when a male litigator does the same, he would be viewed as zealously advocating for his client. These biases also spill out into society at large, hence possibly polluting the client’s thinking and encouraging a penchant for selecting male attorneys to represent them in court, as they view them as more competent and able to handle complex cases.

Progress, always!

Some law firms and even judges have acknowledged these gender disparities and have found ways of removing some of the obstacles that hamper a female trial attorney’s growth. For example, one senior federal judge in New York encouraged junior members of legal teams to argue the motion they assisted in preparing and to question the witnesses they have prepared in an effort to increase minority and junior level attorney participation. Such actions have the inevitable effect of giving female attorneys more of a voice, especially when female attorneys are more likely to be second chair on a case or are more likely to have assisted in the trial preparation process but are less likely to ultimately have their voice heard in court.

The torch should not stop there. Law schools, law firms, clients, and even WOMEN should begin to make changes so that we can feel that we are in the 21st century (only 170 years from the beginning of the women’s rights movement). Law schools can increase their push for women to become trial attorneys by introducing coursework into their curriculum that encourages frank conversations about the implicit biases that exist in the courtroom. To take a step further, these schools should provide tools and skills for women to navigate courtrooms that are majority male in a myriad of scenarios; which will in turn boost the female students’ confidence and better prepare them for the obstacle course that may lie ahead.

Law firms can actively encourage the assignment of women to depositions and cases that have lower stakes to build their female attorney staff’s confidence in being trial attorneys in a court system that favors male attorneys. Similarly, junior staff should routinely be assigned to motions hearings that are not central to the life of the case. Doing so fosters a work environment that is actually favorable to the growth of all attorneys—even those who tend to be in the minority—and makes for a strong and diverse legal team.

Last but not least, women can step up to the plate by letting their voices be heard! Women lawyers can reach out to their own firms to be assigned to cases, be proactive in the development of their skills as trial attorneys and attend seminars and training designed to give them the tools to be effective trial lawyers. While this suggestion may muster more than a fair share of eye rolls, honing the skill of maintaining a calm appearance is a gem that will last a lifetime while practicing in court. By doing this, we can “own” the courtroom with our presence by maintaining an air of confidence (even when our calves hurt from wearing pumps all day and the courtroom is too hot for pantyhose). Furthermore, we should feel obliged to talk at higher volumes than we normally would—so that they can never tell us to “speak up!”

I would touch a bit more on attire, however, I haven’t quite wrapped my head around the conversation just yet. I find myself vacillating between understanding and indignation at the slant it can take into policing women’s bodies. The presence of so many rules regarding female attire in the courtroom is frustrating and annoying, and at times, the antithesis of progress.

In any event, as a young and aspiring trial attorney, I have been forced to take heed of the issues above. While a good attorney is a good attorney no matter what, we cannot deny the societal barriers that are forced upon women that sometimes make it all the more difficult to shine as brightly as your male counterpart would. I don’t have all the answers, but I believe taking the chance to face the truth is the first step in overcoming the barriers that still exist.