Wisconsin Jury Questions and Verdicts

Posted by rozeklawoffice on May 17, 2010 under Jury Duty | Be the First to Comment

The most common complaint of  jurors after a personal injury trial is that they were not told the ramifications of their answers to certain questions on the final verdict form. In Wisconsin, the law prevents the judge or the lawyers involved in the case to explain, in plain language, the effect of jurors answers on the ultimate outcome of the case. Below are some of the questions that will be asked of you if you are chosen to serve on a Wisconsin jury. After each question, there is an explanation of how a juror’s answers affect a personal injury claim.

QUESTION 1: Was The Defendant Negligent?

This question is usually relatively easy to answer. Personal injury attorneys rarely take cases unless they can prove the defendant was negligent. Negligence is simply the failure of the defendant to use ordinary care under the particular circumstances. Negligence is NOT the intentional harming of someone else. The jury, however, is not told is that if they answer “No” to this question, then the plaintiff recovers zero dollars, regardless of how the jurors may have answered Question 6. No Negligence on the Defendant = No Recovery for the Plaintiff.

QUESTION 2: Was The Negligence Of The Defendant A Cause Of Plaintiff’s Injuries?

This also should be easy to answer, but many times the jury is confused by this question and incorrectly answers it “no,” when in fact they should have answered it “yes.” Rarely will personal injury lawyers take cases where the negligence of the defendant didn’t cause at least one of the plaintiff’s injuries, but many insurance company attorneys have made a very nice living by confusing jurors on this question.

When answering this question, jurors must pay careful attention to the exact language of the question. The key word in the question is actually one simple letter “A.” The question does not ask if the negligence of the defendant was the sole cause of all of plaintiff’s injuries. Instead, the question simply asks whether the defendant’s negligence was “A” cause of any of the plaintiff’s injuries. The plaintiff’s injuries may have many causes, but if the negligence of the defendant was one such cause, then this question must be answered “Yes.” Under Wisconsin law if the negligence of the defendant was a “substantial factor” in producing any of the plaintiff’s injuries, then it can be said the defendant’s negligence “caused” the injuries. Again, there may be countless “substantial factors,” but if the defendant’s negligence was one such factor, then this question must be answered affirmatively.

What the jury is not told is that if they answer “No” to this question, then the plaintiff recovers no money, regardless of how the jurors may have answered Question 6. No Cause = No Recovery for the Plaintiff.

QUESTION 3: Was The Plaintiff Negligent?

In a manner similar to Question 1, the jury must decide whether the Plaintiff was negligent. Many times jurors are confused by this question, because they have heard that someone is partially negligent for just being involved in an accident. This is not true and this is not the law in Wisconsin. The defendant must actually present evidence that shows the Plaintiff was negligent. Driving down the road in a car and following the rules of the road does not, by itself, establish that a Plaintiff was negligent.

QUESTION 4: Was The Negligence Of The Plaintiff A Cause Of Her Injuries?

If the jury answers Question 3 “yes,” then they must answer this question. The same considerations should be taken into account as when answering Question 2. If the Plaintiff was actually negligent, then the jury must determine if the Plaintiff’s negligence actually caused any of her injuries. If the jury answers Question 3 and Question 4 “yes,” then they must attribute percentages to each party.

QUESTION 5: Assign to each party such percentage, or part of 100%, which you find is attributable to each party.

Jurors often complain that this question calls for nothing more than speculation on their part, but nevertheless Wisconsin law requires the jury to answer it. The jury must allocate a percentage to each party, and that percentage must equal 100%. The jury is not told the ramifications of their answer.

Wisconsin follows the modified comparative fault rule, which means that a Plaintiff’s damages, as determined in Question 6, will be reduced by the percentage of fault attributed to the Plaintiff in the jury’s answer to Question 5. This rule also means that if a Plaintiff is determined to be 51% at fault or more, then they recover nothing, regardless of the damages awarded in Question 6.

For example, if a Plaintiff is injured when entering an intersection on a green light and making a left hand turn on a yellow light, while the defendant driver entered the intersection on a yellow light and striking the Plaintiff once the light had turned read, a jury could apportion percentage of fault to each driver. A typical fault determination in such a case could be 10% fault on the Plaintiff and 90% of fault on the Defendant who had entered on yellow and struck the Plaintiff on red. The injured Plaintiff’s total damage award would be reduced by 10% by the judge after the jury was dismissed. The jury is never told of this reduction during the case and many times jurors mistakenly reduce damages on their own in answering Question 6.

QUESTION 6: What Sum Will Reasonably Compensate The Plaintiff For Her Injuries?

This question must be answered by the jury regardless of how they answered any of the other questions. The question of reasonableness of the compensation should be answered in a manner that makes the Plaintiff whole for ALL of their harms and losses suffered as a result of the incident. Jurors should not reduce these damages by any portion of fault they believe is attributable to the Plaintiff, because the judge will do this automatically after the jurors are dismissed. Jurors get frustrated because they take the Plaintiff’s own negligence into account when calculating damages, then they learn that the judge had further reduced the juror’s award of damages and they are outraged. Unfortunately, our legislature and court system has decided that jurors should not be told of the effect of their verdict.

Recently, the legislature attempted to introduce a bill that would allow for transparency of jury verdicts, but the Wisconsin big business and insurance lobby successfully prevented the passage of this legislation. This begs the question, why wouldn’t big businesses and insurance companies want jurors to know the ramifications of their decisions?

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For more legal information, contact a Wisconsin Personal Injury Attorney.

Wisconsin Law Allows Health Insurance Reimbursement From Injury Victim’s Settlement

Posted by rozeklawoffice on May 10, 2010 under General | Be the First to Comment

The legal term “subrogation” refers to the health insurance carrier’s right to get reimbursed for payments they made for an injured person’s health care, when that injured person recovers money from a third party.

The rationale behind subrogation is that if an injured person is allowed to recover all of his/her health care expenses from the at-fault insurance company, but those bills have already been paid by the injured person’s health insurance carrier, they are getting paid twice for the medical bills incurred in the accident, once by the at-fault insurance company and once by their health insurance company via payment of the medical bills.

Many states do not allow reimbursement to the health insurance carrier from injury victim’s settlements; however, Wisconsin law allows it. I strongly disagree with the concept that the health insurance be reimbursed. After all, why do we pay health insurance premiums? Wouldn’t this process just make the original payment by the health insurer a loan to the customer?

Luckily, there is an exception to subrogation in Wisconsin. If the injured person has not been made 100% whole from the settlement with the at-fault insurance company or from a jury verdict, then the health insurance company gets nothing. A good Wisconsin Personal Injury Attorney will be able to get the subrogated health insurance carriers to take substantial reductions with  the promise that they will receive nothing if the judge is convinced that the client did not recover 100% of their damages. These reductions always result in more recovery for the injury victim.

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For more information on Wisconsin Personal Injury Claims

7 Phases of a Wisconsin Personal Injury Case

Posted by rozeklawoffice on May 6, 2010 under General, Personal Injury Cases | Be the First to Comment

The process of a Wisconsin personal injury case can be lengthy with many important decisions along the way. To get the best possible recovery for your injury, we recommend that you work with an experienced Wisconsin Personal Injury Attorney who can guide you through the legal process. To help you understand the process, we will attempt to summarize the 7 general phases of a Wisconsin personal injury case.

I. Determine If There Is A Case: Immediately after signing up a case, a personal injury attorney begins an investigation to determine who is at fault, whether or not there were any injuries caused by the accident, and what insurance is available for recovery. The attorney may hire an accident investigator to examine the vehicle, premises, and scene to take photos of the evidence and interview any witnesses. The attorney will also order all medical records associated with the injury victim including records from before the accident, the EMS reports, and records from the first and subsequent doctor visits. Pre-existing conditions are fully explored to determine if the new injury is an aggravation of an existing injury. The attorney will also request and then examine insurance coverage documentation for 1. the at fault parties including the owner of the vehicle, driver, and employer and 2. all possible coverage that may be available to the injury victim such as uninsured motorist coverage, health insurance, PIP, and medical payment’s coverage.

II. Compile and Send A Demand Package: Once the attorney has determined that there is a claim, a demand package is prepared. The package can consist of the following documents: crash report, photos of the vehicle/accident scene, property damage report, EMS report, ER records, doctor reports, diagnostic tests, medical bills, prior medical records, final medical evaluation, expert witness reports, witness statements, evaluation of future medical expenses, and an evaluation of loss of future earning capacity. The package is introduced by a letter from the attorney which summarizes all the information and states the “demand” to the insurance company that they pay a certain amount of money within a certain period of time.

III. Conduct Negotiations: After the insurance company receives and reviews the demand package, it will make an initial offer to settle the case. In the instances where the offer is the maximum limit of coverage, typically the client and attorney will decide to accept it. Other times, when the offer is much less than the client and attorney believe the recovery should be, negotiations begin. Offers can continue for many rounds until either the offer is accepted by the client or a lawsuit is filed. It is important to understand that there are advantages to settling claim before a lawsuit is filed. Advantages include lower attorney fees, lower case costs, quick availability of cash, less stress, and a guaranteed outcome.

IV. File A Lawsuit: If the highest offer made by the insurance company is rejected, the next phase in the personal injury claim process is to serve a complaint (i.e. file a lawsuit). The attorney will file the complaint on the people who they believe are legally at fault for the accident and injuries. In Wisconsin, there can be more than one person that is deemed legally at fault and more than one person can contribute to causing the accident. Each person believed to be at fault is served with the complaint. Once the lawsuit is filed, the attorneys proceed with interrogatories, requests for records, depositions, and motions.

V. Conduct Mediation: Mediation is when both sides come together with a mediator (usually a retired judge) to try and settle the case without going to a courtroom. Each side gets time to explain the case as they know it and present any exhibits. Then each side goes into separate rooms while a mediator goes back and forth between the parties attempting to reach a settlement.  If a settlement is reached, the insurance company will usually cut a check within 2-3 weeks and the lawsuit is dropped.

VI. Conduct a Trial: If a settlement was not reached in mediation, a date for trial is set. A jury will be picked to determine who was at fault and how much money, if any, is to be awarded. Trials can last anywhere from a few days to a few weeks depending on how many witnesses are put on the stand.

VII. Administer An Appeal: The insurance company always has the right to appeal the verdict or rulings of the judge. Appeals can take years to resolve. If an appellate court judge orders a new trial, the process is started over.

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For more information on the Wisconsin Personal Injury Process.

Good Personal Injury Attorneys Do Not Contact You First

Posted by rozeklawoffice on May 5, 2010 under Bicycle Accidents, Car Accidents, Motorcycle Accidents, Pedestrian Accidents, Personal Injury Cases, Truck Accidents | Be the First to Comment

In our 14 years of practicing law, we have never seen an individual who is prepared for an accident. No one anticipates being unable to work. Having their car banged up. Suffering pain that will not go away. We have had clients come into our office after an accident and seem pain-free. Then their condition worsens and they need surgery. We have also had clients come in after an accident in tremendous pain. Wearing the typical padded collars to ease whiplash discomfort, having trouble sitting, or having trouble standing. We have accepted these injuries cases and watched as clients heal quickly and are shortly back to their old self. The point I am making is that you never know if an accident will cause immediate injury, slow on-set injury, injury that will heal, or injury that will get worse and possible pain that will never go away. Even doctors do not really know if someone will heal and be back to how they were before the accident.

So, what should you do?

Unfortunately, in Wisconsin, and most predominately the City of Milwaukee, you do not have to do a thing. Attorneys, intermediaries, legal and medical coordinators, insurance agents and representatives of doctors offices will be flying to you. Your telephone may right. Someone may tell you that the hospital has assigned you a doctor or a lawyer. You Many find a business card in your door or mailbox. You may notice an attorney is now “following” you on twitter.Your mailbox is filled with promotional literature on personal injury attorney firms!

There are other variations of this scene and its important to know it is all a scam. “Runners” sometimes drive around with police scanners in their car. You may have an accident, and they appear asking if they can drive you to a doctor or lawyer. I have heard of tow truck drivers or body shops that also do this. There are reports of runners walking hospital hallways and entering rooms or striking up conversation in hospital waiting rooms, all while passing out their business cards. Runners may call themselves “Legal Referral Service” or “Medical Referral Service” or something similar. Don’t be fooled.

There are stories of people who have been injured and riding in the ambulance when the ambulance attendant passes them a cell phone to speak with an attorney. Others have reported that the tow truck drivers have dropped off their car at the auto repair shop and then offered to drive the injured person to a lawyer’s office.

The following are things that you should know if you have or are ever in an accident.

Hospitals do not assign anyone an accident or injury lawyer. A patients file including phone number and other contact information are kept confidential and never distributed without your permission. If the hospital refers you to a doctor other than your family doctor, they usually will give you a list of doctors with several names to chose from, which is ok.

The people running around with business cards, calling you, following yo9u on twitter, or offering to drive you to a doctor or lawyer (called “runners”) are not doing so out of pure kindness. They are getting paid. In the most outrageous cases, lawyers may offer you money directly. This is illegal. These are the kind of professionals that give all lawyers and doctors a bad rap. You should not want an attorney or doctor that gets patients this way. Any lawyer or doctor that would pay cash for a case can not be any good. The best lawyers act legally and ethically. They are the ones that do not call you first.

Insurance companies know who the dishonest lawyers are. They have departments staffed by retires law enforcement agents whose only job is to discover fraud. Even if you have a legitimate injury and case, if your lawyer is known to be dishonest, you may be investigated and watched.

So, how should you find an ethical personal injury attorney?

First and Foremost, you should be looking for an attorney that is not looking for you! Toss all the mail solicitations, block attorney “followers” on twitter, politely take business card from an y runner or person lingering in the medical facility and then throw them away. You have 3 options left: turn on TV and listen to 30 second attorney commercial (won’t learn much about the firm beyond “one call that’s all” or “don’t drop the ball, just call” ); pull out the yellow pages (not much here either since there is limited space and again filled with slogans and jargon; go to your computer and search for your type of accident or injury (finally, you will be getting solid facts, listings of experience and even free information). We would recommend searching for your type of accident using the location in your search terms (ex: Wisconsin Bicycle Accident Attorney) or your type of injury using your location in your search terms (ex: Wisconsin Brain Injury Attorney).

Once at the website, we recommend  spending some time, clicking around the site to find useful information that the firm provides. Are there any free guides that you can order? Are there any injury tools available such as a migraine diary? Are there any symptom checklists that you can print off for your use? Does the site have a blog that you can go to to find more information on your injury?

Once you have read over the information from various sites, contact the attorney using the contact method that you feel most comfortable. The firm should have on their website multiple contact options that you can choose from (i.e. instant chat, case evaluation form, email address, phone number, etc.).

Once you have contacted the attorney, ask him/her questions that help you determine who will actually be handling your case from start to finish, what is their experience with the particular injury you have sustain, who are their experts on these injuries, if the case does not settle, are they prepared to go to trial? (Very important note: If the attorney says he can get you a “quick” settlement, politely finish the conversation and move on to the next attorney. Quick settlement discussion at the onset of your case can only mean less compensation for you the injured individual).

Good luck in your pursuit for justice and your road to recovery, both financially and medically. If you would like to speak with an experienced Wisconsin Personal Injury Attorney, please do not hesitate to click on the link, view the website, and contact Attorney Randy Rozek.