What’s My Personal Injury Case Worth?

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“What’s my case worth?” This is a question that our personal injury attorneys hear almost daily. The answer is that your case value depends on a lot of different factors. The main factors are:

  • Liability – Who is at fault in your case? If you were involved in a car accident and you were not ticketed, but the other driver was, then you are likely completely not at fault. Other cases are not so simple. Fault can be apportioned between the parties, for example, in a slip and fall on an icy sidewalk, you may be found 30% at fault while the landowner is found 70% at fault. If liability is apportioned, it can greatly decrease the value of your case.
  • Medical Treatment – Did you seek medical treatment immediately after the incident? What kind of treatment did you seek (hospital, physical therapy, etc.)? Did you have to treat for a few months or a few years? How much in medical bills were incurred during your treatment? Injuries requiring invasive surgery or permanent impairment are often worth more than cases involving muscle sprains and strains.
  • Damages – Damages are the largest category for determining the worth of your case. It takes into account medical bills, lost wages, and past and future pain and suffering. If your injury has had a huge impact on your life, for example, you broke both legs and were unable to work for a certain amount of time, the value of your case is likely to be greater than cases involving a nagging or inconvenient injury.

If you’ve been injured, it is important to talk with a personal injury attorney so that you can evaluate the potential value of your case and discuss all your options.

Internal Investigators: 7 Key Traits

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Sometimes, things just go sideways.

Despite the best intentions of your organization’s Board, Officers, staff, and key volunteers, one misstep can threaten the entire mission. Whether there are allegations of financial malfeasance, inappropriate conduct, insufficient entity formalities, or some other variant, the Board of Directors must take quick action to decide if an internal investigation is warranted.

Once you know you need independent inquiry, who should you call to help you?

At the very least, your internal investigator must be unbiased. Ideally, an investigation is conducted by outside counsel or a special committee. And, your choice of investigators is an important as what they uncover.

In order to be productive and get meaningful results, your investigator should:

  1. Understand the culture of your organization.
  2. Commit to interviewing the correct parties, including individuals who were involved with the organization at the time period under investigation.
  3. Be well versed in how to conduct an investigation and how to evaluate credibility.
    –(Remember, this is NOT a case of “he said/she said, so we’ll never know. Part of the investigator’s job is to make credibility assessments).
    –Your investigator should know how to rely on asking open ended questions.
    –Your investigator should have a delicate approach to asking questions that telegraph the subject or intention of the investigation, and should know when to ask them.
  4.  Be adept at conducting interviews with emotional witnesses.
  5. NEVER use the services of an investigator unless they are licensed or subject to a licensing exemption. In Colorado, employees, attorneys, and CPAs for the entity may conduct an investigation under an exemption. Other exemptions do exist. But, for the most part, your wise and level-headed HOA President is not an appropriate person to conduct the investigation without an independent relationship to the organization.
  6. Always work with an investigator who understands the importance of defining the scope and purpose of the investigation with the board at the outset. In particular, you should understand what standards of proof will apply to the findings and recommendations. Miscommunications on scope will not only waste time and energy, but may result in a contaminated investigation. Once interviews have been conducted, it is difficult to revisit witnesses and receive answers that are free from outside influence or revisionist reflection.
  7. Always work with an investigator who has the expertise to identify and recommend ways that your organization can strengthen its policies, procedures, and formal documentation. The most productive investigations will help you minimize risks in the future.

Once your investigator has completed the investigation, the Board of Directors should use the findings and recommendations to come to a good faith, well informed decision about how to respond. Only independent Directors, those who are not implicated in the underlying issue, should make the decision. As always, Directors have a duty to act in the best interests of the organization. Hiring a competent investigator will not only help the organization reach a reasoned decision, but will protect the Board from individual liability.

If your business or nonprofit organization needs assistance with an internal investigation, contact Caroline Kert, Esq. at 303-763-1615 or carolinekert@danieltgoodwin.com.

HELP! Does Our Art Organization’s Board Need to Do an Internal Investigation?

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By: Caroline R. Kert, Esq.

It is a volunteer Board member’s worst nightmare: after dedicating hours and hours of volunteer time supporting your favorite art organization, a scary issue raises its head. If you don’t deal with the concerns, you or your organization might be sued. Is the current Board to blame? What can you do to protect yourself and your organization? It may be time to hire a third party to do an internal investigation.

Arts organizations and nonprofits are unique creatures. The corporate structure is often the same as the largest for-profit companies, but many are headed by volunteers and operate on shoe string budgets. What the key employees or volunteers, Officers, and Directors sometimes lack in corporate governance experience, they make up in passion and belief in the organization’s mission.

Governance missteps can snowball into crucial issues and can leave the Board of Directors confused about what to do next. Even worse, bad PR surrounding the situation may have long term ramifications leading to the loss of committed volunteers, experienced employees, and donors. The types of issues I have helped organizations navigate cover the gambit:

  • A Board Member suggesting that the organization “cook the books”
  • A Board Member running personal expenses through the organization
  • A Board Member comingling corporate assets with those of other organization
  • An organization failing to properly pay employees under wage and hour laws
  • A Board Member accused of physically assaulting a participant at an official event
  • Volunteers serving alcohol to minors at an official event
  • Lead volunteer sexually harassing teammates

When confronted with these types of issues organizations must focus on three simple goals: reducing current liabilities, avoiding costly litigation, and minimizing the collateral damage.

Once a potential issue comes to the attention of the current Board of Directors it should ask, “If we assume the allegations are true, what are the ramifications?” Have local, state, or federal laws been violated?  Can the organization be held liable for an act or failure to act?  Have current or past board members or officers breached their fiduciary duties?  Does the swift resolution of this issue impact your very ability to survive?

If the answer to any of these questions is “Yes,” the Board has a duty to investigate and make a reasonable business decision regarding its response. If the issue is merely a staff dispute or a question of day to day operations, it may be in the Board’s best interest to allow its Executive Director or other leaders manage the problem.

Boards of all organizations have a fiduciary duty to apply good faith, care and loyalty to their actions. Under Colorado’s business judgment rule, officers and directors will not be held accountable for actions “taken in good faith and in the exercise of honest judgment in furtherance of a lawful and legitimate corporate purpose.” So, swift action that demonstrates the Board’s good faith inquiry into the circumstances will go a long way toward protecting the current Board and the organization. In order to fall under this business judgment rule, the action must be:

  • Made by independent/disinterested board members
  • Made in good faith
  • Informed

Hiring in an independent attorney to complete an investigation and present findings to the Board will help fulfill these criteria. If you or your organization need assistance with a current compliance issue or complaint, contact Caroline Kert at 303-763-1600 or carolinekert@danieltgoodwin.com.

Bookmark our page to read more on this topic, including important criteria to consider when selecting your investigator.

Why Should I Bother to Register My Copyright If My Work is Automatically Protected?

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We get this question a lot.  Artists, designers and other creative entrepreneurs are busy people!  So, why should you go through the trouble of registering your copyrights and putting copyright notices on your works if, under U.S. Copyright law, you have copyright protection as soon as your work is “fixed” in a tangible medium?

We understand the instinct that you surely have better things to do with your time and money, but notice and registration are what give our copyright law its teeth!

Let’s say you discover that a major fashion retailer has copied your artwork on t-shirts and has been selling it all over the world?  You file a lawsuit and the judge finds in your favor.  You won!

Or maybe you wrote a catchy melody and uploaded a YouTube video of yourself playing your guitar and singing it.  A major brand uses part of your melody in its new commercials for cleaning products.  You file a lawsuit and the judge finds in your favor.  You won!

Having a valid copyright registration may mean the difference of being awarded $100,000 in statutory damages, plus an order that the other side has to pay your attorneys fees, versus having only a piece of paper from the Court saying you were right and a $15,000 bill from your lawyer you now have to pay.

In other words, to really benefit from copyright law, you need to have a copyright registration certificate from the U.S. Copyright Office, and you have to let others know you claim copyright protection in your content.

Statutory Damages and Attorneys’ Fees

Current copyright statutory damages are set out in 17 U.S.C. § 504.  They range from $750 to $30,000 per work, an amount to be determined at the discretion of the Court depending on the facts of the case.  However, if a defendant can show that they were “not aware and had no reason to believe” they were infringing copyright, they may ask the Court to have the damages reduced to $200 per work.[1]  This is why providing notice is key.

If you can show the defendant was willful when it infringed on your copyright – it was deliberate, voluntary and intentional – a judge is authorized to award you damages of up to $150,000 per work![2]

Also, if you did properly place some kind of copyright notice information on or in your work, and the defendant intentionally removed it before they copied you, they could be liable for an additional $200 to $25,000 per occurrence under the Digital Millennium Copyright Act (DMCA)![3]  An example of this would be a website owner cropping your photograph in a way that the copyright notice information you’d place in the bottom corner, and then publishing the image online without your permission.

In other words, statutory damages can really add up, and they allow you to avoid having to hire damages experts to prepare costly reports and testify on exactly how much you were financially damaged by your infringer’s activities.  Moreover, attorneys’ fees provisions means if you are successful in your lawsuit, the other side pays your lawyer’s bill.  Even if a lawsuit is never filed, copyright registration and the mere threat of statutory damages can provide you leverage to protect yourself and your business.

What Is “Notice”?

A good copyright notice lets the public know that (1) the content is protected by copyright; (2) who the author or owner is; and (3) when it was first published.

Beyond this, there is no required form or method for providing this information.

One way is:

Copyright © 2018 Sally Jones.  All rights reserved.

Or simply:

© 2018 Sally Jones

You could also provide more detail:

Copyright by Sally Jones.  Originally published November 29, 2017.  Revised on January 2, 2018.

You may have noticed major movie studios like Roman numerals:

© Time Warner Studio MCMXCVIII

In other words, so long as you provide the required notice, the form and format is up to you.

If you have more questions about registering your copyright, or think your copyright is being infringed upon, give our Intellectual Property team call.

 

[1] 17 U.S.C. § 504(c)(2)

[2] Id.

[3] 17 U.S.C § 1203(d)

Do I really need an attorney?

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“Do I really need an attorney?”

After being in an auto accident, you probably have a lot of thoughts and worries. You may not know what to do next or what your rights are.
“How am I going to get my car fixed?”
“Will I still be able to drive to work?”
“Will insurance cover this?”
“Can I afford to be injured?”
You have questions. We have answers.
Our team of personal injury attorneys is here to help you through every step of your claim, including assisting you in obtaining treatment for your injuries, understanding the financial aspect of your claim, and negotiating a fair settlement with the insurance company.
Don’t give the insurance company an opportunity to take advantage of you. Insurance companies may try to low-ball you and pressure you into settlement if you do not have an attorney. Make sure that you speak with an attorney first to understand the true value of your claim and the full extent of your injuries.
At the Law Offices of Daniel T. Goodwin, our personal injury attorneys are here to protect your interests. We take the worry and stress of a legal claim away from you to let you focus on what matters most: regaining your health and healing your injuries.
Call us today at 303-763-1600 to speak with one of our Broomfield personal injury attorneys.

We’ve got another happy client!

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Our client, Chelsy, needed help from us with her auto accident case. She had such a positive experience, she agreed to share her thoughts with us. Her case was not unusual:

  • She had new, often debilitating pain, which impacted her livelihood.
  • She preferred to seek relief from “alternative” medical providers: massage, acupuncture, and yoga
  • She was overwhelmed by the system and wasn’t sure how to best proceed
  • The insurance company tried to ignore the extent of her pain and “soft tissue” injuries
  • Her medical bills were piling up and she needed to continue getting care

Chelsy came to us in time to bring a lawsuit, which let the insurance company know that she was serious about getting a full recovery. We were able to get her a good result that helped her pay her bills and secure future treatment.

What is UIM Coverage?

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If you’ve recently been in an auto-collision, you may have been asked whether or not you have “UIM” Coverage.

UIM or “Underinsured Motorist Insurance” (also sometimes called just “UM”) covers your medical bills, pain and suffering, and lost wages if your damages exceed the amount of coverage that the at-fault driver has. For example, if you are seriously injured in an auto-collision and have $150,000 in medical bills, and the at-fault driver only had coverage for $25,000, you have $125,000 in damages that exceed the at-fault driver’s coverage. If you have your own UIM Coverage in the amount of $300,000, you can make a claim to have your UIM Coverage pay all of your damages in excess of the at-fault driver’s policy up to your own policy limits.

UIM Coverage is important because many drivers in Colorado only carry the state minimum amount of insurance coverage – $25,000. If you are seriously injured by a driver who does not have adequate insurance coverage, you need to have your own coverage to protect yourself. Don’t leave yourself and your family at risk of an underinsured, or uninsured, driver!

Insurance Companies Use Your Facebook Against You

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If you’ve been injured and are involved in a claim against an insurance company, be aware that the insurance company will be looking at everything you post online in order to deny your claim! They will use all of your posts, tweets, and pictures to claim that you aren’t injured.

Setting your Facebook page to “private” doesn’t protect you. During a lawsuit, the insurance company may try to subpoena your entire Facebook page and Twitter account, even asking for all of your passwords and usernames so they can see anything private that you may have done.  And it’s legal!

If you’ve been in an accident, the safest thing for you to do is to de-activate your social media accounts during the claims process.  In the very least, be mindful of what you post, watch what others are “tagging” you in, and remember, social media is public!

Unavoidable Ice – Tips to Keep You Safe

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With colder weather, holidays, and ski season soon approaching, we will also be encountering dangerous icy conditions. Falling on ice is one of Colorado’s most common winter injuries and reasons for bringing a lawsuit. It takes less than two seconds from the moment that you slip to when your body hits the ground, leaving you vulnerable to serious injuries and broken bones.

Businesses in Colorado which are open to the general public have a duty to protect their patrons from dangerous ice build-up. When you’re out and about this winter, remember these following tips:

  • Stay on designated sidewalks and walkways.
  • Wear appropriate winter shoes with good traction.
  • Only walk in well-lit areas.
  • If you notice dangerous ice, tell an employee.
  • Walk slowly and keep your center of gravity over your front leg.
  • Keep your arms free to help you balance. If you are carrying heavy bags, ask an employee to help carry them to your car.

“Open Studios” Trademark Dispute in Boulder, Colorado

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Our guest contributor today, photographer John Uhr, posted this great analysis on Facebook of a current, local and much-publicized trademark dispute regarding the name “Open Studios.”

A quick background:  Open Studios, established in 1995,  is an arts-awareness and -appreciation organization based in Boulder, Colorado.  Recently, the organization has been quite aggressive in its legal efforts to protect the name “Open Studios” in the Boulder area by asserting its trademark rights.  This has impacted many artists in the area, including the Boulder Metalsmithing Association.   Recently, Open Studios and the Boulder Metalsmithing Association are parties to a trademark lawsuit in federal district court here in Colorado.  You can read Open Studio’s complaint, filed in August 2016, here.

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October 10, 2016 at 11:17am ·

A funny thing happened this evening.  Completely by coincidence, I made the acquaintance of Open Studios board-member and attorney, Howard Bernstein.  He was discussing with Chris Brown (respected photographer and O.S. artist) a certain controversy surrounding Open Studios suing a small arts organization.  Since I have a passing interest in the matter, I asked Mr. Bernstein a number of questions I had been wondering about and listened carefully to the answers. We spoke for around 45 minutes and at the end I inquired whether Open Studios would abide by the results of the upcoming mediation if it should go against them. His answer (after assuring me that Open Studios would most certainly win) was an emphatic “why would we?” ……more on our conversation as I have time.

Ok, It’s later …

This article reports on an unexpected conversation I had with Open Studios lawyer and board-member, Howard Bernstein. The conversation took place at about 6 PM Oct. 10th at Chris Brown’s photography studio and in the presence of Chris and Mr. Bernstein’s wife, who listened with interest and occasional interjections. If Mr. Bernstein disagrees with my characterization of his position, I would welcome his input. These are his words and position to the best of my memory. I would also like to add that I hold no enmity toward Mr. Bernstein and believe he has the best interest of Open Studios at heart.

1) Mr. Bernstein believes that due to the their many years of use of the term, good works, etc. that Open Studios owns the right to the phrase “open studios(s)” for promotion of events in all of Boulder County. I asked if an individual artist (such as Chris Brown) would be allowed to post a sign saying “open studio” and he indicated that he would. I took this to mean that they only wished to control usage by organizations, but didn’t pursue the point.

2) While Mr. Bernstein seemed very anxious to make this issue about Boulder Metalsmithing Association and its director/founder Beth Merkel, it was apparent that he believes that any organization in Boulder County using the term “open studios” is violating OS’s rights and that allowing them to continue would be irresponsible. He would very much prefer that other organizations voluntarily stop using the term and that litigation is a last resort if they refuse to stop using it.

3) Mr. Bernstein believes that Boulder Metalsmithing’s attempt to trademark the term “open studios” was clearly an attempt to get exclusive rights to it’s use (keeping OS from being able to use it). I suggested that it was simply an attempt to ensure that the phrase could continue to be used by anyone, in the face of Open Studio’s demands. I said that I and everyone I had spoken to would be equally against anyone else claiming exclusive rights to the term.

4) I pointed out that literally thousands of organizations use the term “open studios”, many of them for far longer than Boulder’s OS and that I could find no instances of any of them suing to keep exclusive rights, but Mr. Bernstein insisted many times that they were “forced” to take legal action. It was clear to me during the course of our discussion that OS is pursuing exclusive rights to the term and will oppose any use of it, using legal means if voluntary compliance is not forthcoming in the misguided belief that they are protecting OS and their artists.

The Solution:

A search for “open studios” reveals that virtually all other of the thousands of open studio organizations attach their open studios name to their location. “Open studio” is a common generic phrase, while “open studios Cornwall” provides the uniqueness commonly valued in a trade name. For the same reason, common descriptive phrases like “farmer’s market”, “art fair”, “film festival” are attached to a location like Boulder County, Pearl St, or CU International when used as an organization’s name. I suggested that a simple solution for OS would be to attach their name to “Boulder” or “Boulder County”.  Mr. Bernstein emphatically rejected this idea seemingly because “open studios” had always been “open studios” and always would be. Tradition! The response is ironic because one of the main reasons Mr. Bernstein gave for preventing the use of the term by others is the potential for “confusion”.

Mr. Bernstein also seems to be overlooking a much greater potential source for confusion. If OS doesn’t claim “Boulder Open Studios” as a trade name, what prevents another organization from doing so, for instance, as a public forum for discussion of open studios issues and controversies? Talk about confusion!

It seems to me that Open Studios simply made an easily fixed mistake in not using the more appropriate, specific and descriptive name of Boulder Open Studios. Fixing this would do much more to avoid confusion than using a generic descriptive phrase and then being “forced” to prevent other organizations to stop using it.

To make things much easier for Open Studios to adopt this solution, I have purchased the tradename “Boulder Open Studios” and the domain name “boulderopenstudios.org”. I am offering these names to Open Studios free of charge if they will acknowledge that the term “open studios” is simply a common generic phrase which should be available for anyone to use.

What do you think of John’s solution?  Do you agree with Open Studio’s attorney or is this a case of trademark bullying?  This is certainly a case our intellectual property team will be watching!