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What Is Hearsay Evidence? And Why Is It Restricted?
Hearsay is defined as: “evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated.” This is called the “hearsay rule.” Hearsay, unless it falls within certain designated exceptions, is excluded from introduction at trial. The reason for this exclusion is because hearsay evidence is less reliable than direct testimony.
If a witness is asked: “Who did Mrs. Smith say caused the accident?” Objection, hearsay! Says the opposing attorney. This would be asking for hearsay, because the witness is being asking for a statement made outside of court and intended to prove the matter stated that a specific person caused the accident. To avoid the hearsay rule, Mrs. Smith could be asked to testify and directly testify to who she saw caused the accident. Because Mrs. Smith directly testifies what she saw, not asking someone else what she said she saw. Also, if a person testifies about statements made out of court, but those statements are not to prove a matter asserted, those statements can come into evidence.
There are many exceptions to the hearsay rule which allow the introduction of evidence not otherwise allowed due to this rule. Some of these exceptions include:
1 - If a party to the lawsuit makes a statement out of court and someone testifies to what he/she said, this is an exception to the hearsay rule.
2 - If the out of court statement is consistent or inconsistent with the witness’ statement in court.
3 - A statement made by a dying person concerning the cause or circumstances of the death.
4 - Certain business records which contain hearsay statements may be admitted with proper authentication.
There are actually many exceptions to this rule, but these exceptions are based upon the principal that the statement will lead to the truth.
How Do I Know If I have a Product Liability Claim?
A products liability claim consists of an injury caused by the reasonable use of a product. These claims arise out of three situations:
1) When a product is designed improperly and causes injury;
2) When a product is designed properly but fails and causes injury; or,
3) When a product is not properly labeled to warn of potential injury.
Just because a person is injured from a product, does not auto-matically mean there is a case or that the product caused the injury. Many times, an injury occurs when someone uses the product in a way not intended by the manufacturer. For example, children’s scooters cause injuries to their riders all the time, however, most injuries result from improper or negligent use by the rider him or herself.
Here are three examples of product liability claims.
Improperly designed product: A pressure cooker is designed so that the opening latch is not properly linked with the pres-sure gauge to keep it closed until the pressure is fully re-leased. The user opens the latch and hot liquid spews out of the cooker causing burn injuries.
Failed product: A tire is properly designed, but during the construction of the tire, the steel belts improperly rust and fail while a driver is traveling at 65 mph. The car flips and results in paralyzing injuries.
Lack of Proper Warning: A medication is issued for use for treatment of a particular disease. The manu-facturer of the pharmaceutical knows the medication has cer-tain side effects, which if the medication is used for an ex-tended period of time, will cause liver failure. The manu-facturer fails to include a prop-er warning on the bottle or label regarding the side effect. The drug causes injury by the reasonable use of the product. Strict liability applies to prod-uct liability claims. This means that negligence is not a prereq-uisite to the claim. However, one injured by a product, must prove one of the above scenar-ios and the product was being used in a reasonable manner.
What is a paralegal, and how do they help my case?
A paralegal is an individual who holds him or herself out as a paralegal, through training or experience, and who works under the direct supervision of an attorney. A paralegal is authorized to perform a wide variety of work, including, case planning, development, and management; legal research; interviewing clients; fact gather-ing and retrieving information; drafting and analyzing legal documents; collecting, compiling, and utilizing technical information to make an independent decision and recommendation to the supervising attorney; and representing clients before a state or federal administrative agency, if allowed by law. Although lawyers assume ultimate responsibility for all legal work, they delegate many tasks to paralegals. Paralegals perform many similar tasks as lawyers, however, they are explicitly prohibited from carrying out duties considered to be within the scope of the practice of law, such as giving legal advice, and representing cases in court. One of the most important tasks a paralegal has is helping lawyers prepare cases for settlement or trial.
Paralegals will often perform the initial investigations of facts of cases and ensure all relevant information is considered in each case. Thereafter, they organize and keep track of all important case documents and make them available and easily accessible to the attorneys. After they analyze and organize the information obtained, paralegals may prepare written reports, initial letters to various companies, and speak to many people asso-ciated with the case. The attorneys then use this information in determining how each case should be handled. If an attorney decides it is neces-sary to file lawsuit on behalf of the client, paralegals may be involved in preparing some of the initial paperwork to be filed with the court. Since paralegals often work directly with clients or potential clients, a paralegal should be able to communicate well, be attentive to what the client’s needs are, and then document and present their findings and opinions to the attorney. While it is ultimately the attorney’s decision on how to proceed with each case, the para-legal provides insights and recommendations to assist the attorney.
Paralegals in law offices often help keep the cost of legal ser-vices down. However, many people believe that if they go to a document preparation ser-vice, they can get the same quality service as a legal office. This is not the case (unless your lawyer is not very good). In fact, document preparation firms, even if they call them-selves "paralegals," are limited to provide "self-help" assistance, as defined in 6400 of the Business and Professions Code. If any legal advice is necessary, they must refer you to a lawyer, however, all too often, they cross the line into practicing law without a license.
Connie Macias, is our paralegal and has been with us for many years. She does a great job and we are glad to have her assistance on our cases.
What do I do if called as witness to testify?
There are several circumstanc-es when you could be called upon to testify in a court or at a deposition. For example, you are at a grocery store when you observe a shoplifter. You report the criminal activity and the individual is arrested. If the matter goes to trial, you could be asked to testify. Or, you might be a witness to, or a party in, an auto accident. Another scenario would be the necessity of testifying in a di-vorce or probate matter. Tens of thousands of deposi-tions are conducted in Califor-nia every working day. The likelihood you will have to testify some time in your life are pretty high.
Here are some tips if you are called to testify.
Take Notes Early.
If you think you witnessed something where you might have to testi-fy, immediately write down what you saw, heard or experi-enced. This way you will be able to refresh your memory when called to testify.
Tell the Truth
Always tell the truth. Lying under oath is a criminal offense. Tell the truth even if you think a lie will sound better.
Answer Only the Question
When testifying, answer only the question asked. If the questioner wants more infor-mation, they will ask additional questions.
Understand the Question.
If you don’t understand the question, let the examiner know so you can get clarifica-tion or have another question asked.
Speak Clearly and Assured-ly.
Say "Yes" or "No" when
required. Don’t say "uh huh" or "yeah". Speak clearly and sufficiently load for all to hear your response.
Be Cooperative but not Manipulated.
Give the an-swers as you understand them to be. If the lawyer tries to twist your words, reject the rephrasing and restate your position.
Never argue. You are there as a witness, not as an advocate.
When testifying, allow the question to be asked before responding. Don’t antic-ipate the question or attempt to speak over the questioner. Also, be patient with the pro-cess. Delays and inconvenienc-es will occur.
These few tips should help you if you think you may have to testify as a witness or a party in a criminal or civil action.
Ontario Personal Injury Attorney | What is a Product Liability Claim?
An area of law we often hear about in the news, or we associate with large verdicts, is that of product liability. This is an area of law where those who produce, distribute or sell products can be held responsible for injuries caused by those products. Injuries from these products can result from the product failing, from the product operating as intended but they still cause injuries because of improper design or due to a failure to warn the consumer of certain dangers associated with the product.
These laws are, for the most part, govern by the laws of each State. In California, there are four potential theories of liability, these include, negligence, strict liability, breach of warranty and various consumer protection laws. Here are some examples of product liability claims. A woman uses a pressure cooker to cook some soup. The pressure cooker has a timer on it along with a locking mechanism to keep the lid closed during operation. The timer goes off indicating that the soup is complete. The lock disengages, however, the pressure in the cooker has not all been released. The woman opens the lid and scalding soup bursts from the cooker, scalding the woman from her neck down to her waist. Another example is when a man was performing an industrial cleaning job with a high pressure water hose when the 10-inch brass hose nozzle split apart, striking his face and causing extensive facial fractures, eye damage, dental injuries, traumatic brain injury and additional psychiatric injuries. It was found that the nozzle was improperly cast, resulting in one wall being inordinately thick while the opposite side was less than two human hairs thick. Both of these cases resulted in awards over a million dollars because of the injuries suffered from either improperly designed products, like the pressure cooker, or improperly manufactured products like the nozzle.
Just because a product is sold to the public does not mean it is safe. If you believe a product was defective and caused you or a loved one injuries, give us a call so we can assist you in evaluating whether you have a claim.
Rancho Cucamonga Personal Injury Lawyer | Why do some Personal Injury Cases take so long to Resolve?
There are so many reasons why this might be. Let’s first start with the time it takes to recover from one’s injury. Some injuries take many months or years, to recover from. Unless, there is a policy limit issue (i.e., there is not enough insurance available to cover all the damages) waiting for the healing process to reach a stable point is critical to achieve the best possible recovery. If you settle too soon, then all the injuries will not be properly addressed in the settlement proposal. Generally, prompt medical care and completion of treatment results in earlier settlements. Following a doctor’s advice for treatment is also generally best for reaching a reasonable settlement.
Another reason is that the insurance company and its adjuster are being unreasonable in adjusting the claim. For example, if our office issues an initial demand for $15,000, but the insurance company refuses to resolve the matter for more than $6,000, we might have to take additional time to work on the insurance company to increase the settlement offer while we inch our demand lower to get to a reasonable settlement compromise. Some times extra time is necessary to more fully development key points that add value to the claim, resulting in increased offers.
A third reason is that the insurance company and our side, do not see eye-to-eye on the issue of liability for the claim, causation of the injuries or the value of the claim. This may then result in filing a lawsuit. From start to finish, a lawsuit can take years to reach trial. Throughout the entire time the lawsuit is pending, we are pushing to secure a reasonable settlement, but sometimes the two sides cannot reach an agreement and a judge or jury needs to make the final decision.
Finally, with some law offices, not ours, the attorney does not keep track of the cases and allow his/her staff to manage the cases from start to finish. In our office, we have an extensive case management system supervised and reviewed routinely by myself. Utilizing excellent team members, our technology and constantly paying attention to our cases help us move the cases along as quickly as is practical for the particular circumstances.
I have a personal injury case. Should I get a loan against my case while I wait for settlement?
NO. This is a very bad idea. In recent years, because of the economy, I have seen more people wanting to either get early financing on a personal injury case or to sell their personal injury annuity income for a lump sum payment. These are terrible ideas. These "finance" companies are nothing more than legalized "loan sharks" disguising themselves as your financial savior. The agreements these companies use are extremely expensive and often lead to dissatisfaction and frustration at the end of a case. I am going to lay out a real live case where a pre-settlement loan was taken by an injured motorist to show you what I mean.
Client "Jim" wanted to get some of his settlement money early. He had suffered mild to moderate injuries in his accident. He called several companies and finally found one he wanted to use. This particular company "Shark One" - the names have been changed to protect the innocent and guilty, provided a loan of $1,550.00 as against the future settlement of the case. The moment the paperwork was signed and that check delivered, he had an obligation for repayment of $2,325.00, and that amount increased every few months. By the time the case settled, the $1,550.00 loan cost Jim, $2,642.50, an expense of $1,092.50 in six months. This is about the most expensive money you could possibly borrow. This example shows an annual percentage rate of more than 140%. Is there any wonder why these companies are so interested in lending injury victims money? People are desperate and they will do anything, including making unwise financial decisions.
While there may be a unique circumstance leading to the need to borrow from one of these companies, if there are other alternatives, please explore those first. Look to a family member or friend for a loan. Give them a secured interest in your recovery for half the rate you would otherwise pay. They will be happy, and you will have more money in the end. Alternatively, just try to wait it out and keep all the money to yourself. At the end of your case, I don’t want all the "loan sharks" to get paid and leave you with nothing but bare bone financial results.
If you have questions about the settlement of your case please contact Inland Empire Law Group today at (888) 694-3529 or send us a message.
Why Is Keeping a Journal So Important After Being Injured In An Accident?
Let's start with a test? Ask yourself these questions.
What did you do one week before you read this article?
When was the last time you took medication for any pain you suffered?
What was said during your last conversation with your child or best friend?
What questions did your doctor ask you at your last visit?
Were you able to answer all these questions with the clarity of having just experienced each of those events? Of course you couldn't. Now granted, these events are not significant and may not have affected you as would a serious or traumatic event like a major injury. However, the reality is that after two years between an accident and a deposition or trial, the same failure of memory will visit you during your attempts to recall the event. When memories fail, the defense attorneys take advantage and imply you are being dishonest because you cannot remember specific facts associated with serious events.
Keeping Detailed Records of Treatments and Medications Removes Doubt from Your Claim
For example, I just finished the deposition of one of my clients regarding a rear-end impact car accident. During that deposition many of the responses to the questions posed were "I don't remember" or "I can't recall that" or a similar response. Those responses could have been much more certain after reviewing a contemporaneously maintained personal injury journal. Being able to respond to questions with certainty and firmness often persuade an insurance company or a jury to provide you greater compensation than the person who cannot remember how long they treated with the doctor or the road they were traveling on prior to the accident or some similar fact. Journals allow you to review and remember past events.
So why keep a personal injury journal? To make sure you don't forget critical facts which could make up the difference between a large settlement and a small lack luster return. If you haven't kept a journal, start now and don't give up until after your case is done.
What happens to your injury claim if you are in an accident and the person who caused the accident dies?
Here is an example, on May 22, 2012, a tragic accident occurred in Yucaipa, California when a Redland woman was driving a 1997 Honda Civic, sadly crossed the center divider on Bryant Street, and ran into another car driving southbound. The southbound driver was unable to avoid the accident resulting in a head-on collision. (Information derived from San Bernardino Sun).
This loss of life is horrific and unfortunate and we are saddened by this tragedy. For the innocent driver who was struck by the negligent driver in coming across the center divider may have also suffered injuries which may be minor or the could be major and life-altering. Even though the negligent driver died, a claim can still be made for recovery of personal injuries and damages. The injured person has legal rights against the insurance company that insured the deceased individual and/or the car being driven by that person. In certain circumstances, if the insurance is insufficient, and there is a financial estate left behind, those assets could also be available to help pay for the damages and losses.
Protect Yourself After A California Car Accident
Unfortunately, accidents occur. Sometimes in those accidents, people are seriously injured or may even lose their life. It is important to protect yourself and your loved ones with proper insurance prior to an accident, and if an accident does occur, then hire an excellent personal injury attorney who can help navigate the difficult process of making a personal injury claim and secure a proper recovery.
Keep in mind that hiring a great car accident injury attorney in Yucaipa, Redlands or any other location in Southern California requires research and time. Lawyers will provide injury victims with free consultations so you can evaluate them and decide which attorney will meet your needs.
The Inland Empire Law Group, a Rancho Cucamonga law firm, helps injury victims from car accidents in cities from the High Desert of Victorville and Apple Valley to Indio and Palm Springs and west to Glendora and San Dimas down to Murrietta and Temecula. If you need help with a personal injury claim in the Inland Empire, please give us a call. (909) 481-0100.
Can I Recover Damages From Others If I am Hurt on the Job?
The answer to this question depends on the circumstances of the accident. If the accident was no one’s fault, your fault, or the fault of a co-worker, then the answer is most likely no. Worker’s compensation insurance is the exclusive remedy for any injury or death in those circumstances.
Let’s change the circumstances. Assume that an employee was working for an Ontario trucking company. While on the road, an accident results from the fault of another. This traffic collision causes serious injuries. The injured Ontario trucker can seek recovery from both his employer’s worker’s compensation insurance carrier as well as from the person who caused the accident. However, in order to avoid a double recovery from the two insurance companies, once the Ontario truck driver recovers damages from the insurance company of the negligent driver, he is obligated to reimburse the worker’s compensation insurance company for the money it paid out on behalf of the injured worker. This is called subrogation and indemnification. Also, financial recovery that exceeds the amount received from worker’s compensation insurance can be used to offset future payments by the worker’s compensation insurance company.
Having a personal injury attorney who honors your contractual and legal obligations to your insurance company is vital to preventing long term troubles and unexpected financial losses. The Inland Empire Law Group understands these complex interaction between worker’s compensation and other insurance companies. In any injury case, you should consult with a personal injury attorney to find out the extent of your rights. Consult with the Inland Empire Law Group for an honest assessment of your rights. (909) 481-0100
If a doctor was negligent in performing a surgery, do I have a case against the doctor?
The simple answer is, maybe. Isn’t that just like a lawyer? But that answer is accurate. Not all negligent acts by a physician result in a recoverable claim.
Let’s look at this through an example. Sarah has surgery to remove her gallbladder. During the surgery, an error is made and damage is caused to an internal organ. During the surgery, the error is seen and repaired. The recovery took a bit longer due to the error, but the ultimate recovery was complete. So was there negligence, and is it actionable?
First, with all surgeries there are risks, including possible injury to adjoining organs. The occurrence of a known risk is not negligence if the doctor followed accepted procedures.
Second, even if the doctor failed to follow proper procedures, but that conduct did not cause significant injury, then this error would not result in an actionable claim.
Finally, if the doctor improperly performed the surgery and the patient had serious injury as a result of the error, then a claim may exist against the doctor. The patient would need to prove that the doctor fell below the standard of care accepted in the medical field, that there was significant damage and that the damage was actually caused by the negligence.
80% or more malpractice cases are lost by the patient. Therefore, a trained malpractice lawyer needs to carefully review the facts before bringing a claim against any doctor. David H. Ricks, the principal attorney at the Inland Empire Law Group a Rancho Cucamonga malpractice attorney, has been handling medical malpractice claims for nearly 20 years and can evaluate your case. Call 1-888-MYIELAWYER or 909-481-0100 to schedule an appointment.
How is my property damage resolved when my car is damaged in a California car accident?
Most car accidents result in some property damage to the vehicles involved in the accident. Not all accidents result in injuries to the occupants of the cars, but other accidents result in both serious damage to the vehicles and serious injuries to the driver and passengers of the cars. So how do you resolve property damage that is partial or the total destruction (total loss) of the car?
There Are Three Possible Ways to Resolve Property Loss Under California Law
- The damage to the car can be repaired and returned to its original condition (or at least as near as possible). The insurance company or the negligent party (if not insured) is to pay for the cost of the repairs.
- If the damage to the car is so substantial that the cost to repair the vehicle exceeds the value of the vehicle then you are to be paid the “fair market value” for the damaged vehicle. In many instances, even if the cost of repair is close to the value of the vehicle, the insurance company may still “total” the vehicle just to avoid the possibility of additional unknown costs coming into play as the repairs are made.
- The third way is that you just get paid the cost of the repairs and you can decide to have the car repaired or just pocket the money.
Even though it does not seem fair, it is the responsibility of the person with the damaged car to prove the reduction in the automobile’s value (2 above) or the reasonable cost of repairing it (1 above), whichever is less. Ultimately, you are entitled to the lesser of the two amounts. To determine the reduction in value of the car, you must determine the fair market value of the car before the harm occurred and then subtract the fair market value of the auto immediately after the damaged occurred. For example, if the value of the car was $15,000.00 prior to the accident, but the salvage value of the vehicle after the accident is only $1,000.00, then the reduction in value is $14,000.00. If you give the damaged car to the insurance company, then you will receive $15,000.00.
“Fair market value” is defined as the highest price that a willing buyer would have paid to a willing seller, assuming:
1. That there is no pressure on either one to buy or sell; and
2. That the buyer and seller are fully informed of the condition and quality of the automobile.
Finally, “It is well established that under [Civil Code] section 3333, the measure of damages for the loss or destruction of personal property is generally determined by the value of the property at the time of such loss or destruction.” Pelletier v. Eisenberg (1986) 177 Cal.App.3d 558, 567.
A Car Accident Attorney Can Make Sure You're Treated Fairly by the Insurance Company
So property damage is often resolved with a mathematical calculation with the help of a good auto body repair shop. If the cost does not exceed the value of the vehicle, and the car can be repaired, choose a repair shop of your choice and have your car repaired and require the insurance company to pay for the cost. If the vehicle is a total loss, then determine the “fair market value” of the car at the time of the accident. Settle only for that which is fair and reasonable to you.
Most property damage claims can be resolved without an attorney. However, if you do not feel you are being treated right or were injured in the accident, consult an attorney and get the right advice and representation to resolve your damages claim.
Attorney David H. Ricks and the Inland Empire Law Group is an excellent personal injury and liability lawyer and law firm in Rancho Cucamonga and is handling cases throughout the Inland Empire, including the High Desert Region. Please call our firm to discuss your legal rights and how we can really make a difference for you at 909-481-0100 or 1-888-MY-IELAW.
Can you lose your license for drinking, possessing or purchasing alcohol without being in your car?
Yes. If you are under 21 and are cited for underage drinking, at a party or some other locations, the State of California has the right to suspend your license, even if you were nowhere near your car. Any person aged 13 to 21 cited, even if not convicted, may have their license privileges delayed, restricted or suspended for up to one year for each offense involving possession, consumption, and purchase of alcohol. [V.C. sec. 13202.5; B. & P.C. secs. 25658, 25662(a)].
Do I Need Medical Treatment Following a Car Accident?
If you’re involved in a car accident, it is essential that you seek prompt medical attention. Even if you do not feel injured at first, it is still a good idea to get checked out by a doctor, either by your primary physician or at an urgent care or emergency room facility. It’s not unusual for the initial shock of the accident to mask pain or bodily injury until several days later. Other times, injury victims actually feel embarrassed or guilty for having been involved in an accident and don’t want to seek treatment. However, it is generally not their fault and should be proactive to address their injuries from an accident.
Some automobile accidents result in injuries that are clearly evident, resulting in neck and back injuries, broken bones, bleeding or internal injuries. Immediate medical attention is required and paramedics and/or ambulance services should be utilized to prevent further injury from delayed treatment. You should insist on getting a full evaluation, including, X-rays, MRIs or other internal medical examinations. Expect to receive and take muscle relaxers, anti-inflammatory medications, and pain medication to provide you some degree of immediate relief from the injuries, including muscle strains, pulls, or whiplash injuries.
Delaying Treatment Can Create A Variety of Other Issues
Delayed therapy and medical treatment following an injury causing accident will most likely result in a poorer recovery or a delayed recovery. Many insurance companies that are defending against your injury claim will use your delayed treatment against you. The insurance company claims that if you did not need to get medical treatment immediately after the accident then you could not have been injured too badly. Since back and neck injuries, which have resulted in herniated disks or other similar injuries, are not always immediately determinable, delayed examination and treatment may result in ammunition for the insurance company to say that something else caused your injury instead of the accident. These injuries often are first diagnosed as "soft tissue" injuries. But after treatment has not resolved the injuries, an MRI or CT scan may be taken to reveal a more serious disc injury.
After a car accident, this is what you should do: Seek some medical care right away, even if you feel okay at first. Do not delay further treatment when you realize there is something wrong. Follow the treatment protocol advised by the physician or chiropractor. Seek legal advice to determine whether you are entitled to recover compensation to cover the medical expenses, loss of earnings, property damage and pain and suffering compensation.
Finally, keep detailed records of your injury, treatment and problems from the accident. We naturally forget information over time. This is why you must write down your information then provide it to your attorney so he or she can clearly communicate to the insurance adjuster what you experienced from this accident. It is hopeful that between your journal and the doctor’s records this information will help the attorney establish the causal link between the accident and your injury.
Medical treatment, even if it is just an examination, is better than not taking affirmative action to treat your injuries. Proactive medical treatment and efforts in recovering from an injury will always be better for you than to ignore your injuries from an automobile accident or some other injury.
Top Rated Rancho Cucamonga Personal Injury Attorneys
If you’ve been injured in a car accident that was caused by someone else, you may be able to recover compensation for your injuries, the damage to your car, lost wages from missing work, and more. The car accident attorneys of the Inland Empire Law Group are here to help you with your claim. From our offices in Rancho Cucamonga and Victorville, we proudly serve the entire Inland Empire and High Desert region. Get a free, no-obligation consultation today, call 909-481-0100 to get started.