15 Top Mistakes Personal Injury Clients Make Series Part One: Not Getting or Delaying Medical Treatment

Top Mistakes personal injury clients make

You’ve just been hit by another driver. The police arrive at the scene and cite the other driver with a violation. There are a million things running through your mind. If your car is totaled, how are you going to tow it? What about a rental car? You need to call your insurance company and open a property damage claim. How are you going to get home?

With everything going on, you are also dealing with the shock and stress of the situation. You’re so busy with the logic of being hit that you may neglect your physical health.

Many individuals involved in auto collisions are physically injured. If the collision is minor or moderate, you may feel muscle pain in your neck, shoulders, and back accompanied with a headache. These are common symptoms of whiplash. You may have also hit your head on the window or back of your headrest or hit your knees on the dashboard. If you were holding onto the steering wheel when you were hit, your hands and arms may have tensed, straining the muscles upon collision.

With your long list of to-do items following a collision, going to the emergency room or your primary care physician may fall to the bottom of the list. Many individuals attempt to self-treat with rest, ice, heat, and over the counter medications. However, self-treatment rarely completely resolves the injury. It is only after months go by and the injury either does not heal, or gets worse, that an individual may seek medical attention.

A delay or gap in medical treatment is one reason why an insurance company may try to deny your personal injury claim or significantly reduce its value. To avoid this, make sure that you seek medical treatment immediately following a car accident, even if you think your injuries will just go away. A large portion of the time, injuries get worse, not better, following a collision.

Top 3 Worst Reasons To Ignore Your Summons

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By: Caroline R. Kert

Over my years as an attorney and mediator, I have handled a lot of pre-trial conferences and mediation efforts in civil cases. I’ve watched Defendants stand up in court, unrepresented, and plead their case. I’ve had conversations with Defendants who call my office hoping to negotiate a settlement. So, I’ve heard every kind of excuse about why a Defendant thinks that they are not required to respond to a Summons and Complaint.

These excuses can range from the heartbreaking (“I’ve had a *really* bad run of luck and the Plaintiff should cut me some slack”) to the expected (“It’s someone else’s fault” or “I don’t have any money to pay”) to the bizarre (“This is all part of a government-led conspiracy to ruin me”).  One of the most frequent “excuses” that I hear, however, is that the Summons and Complaint were not properly served. Rarely is the excuse valid.

There appears to be a widespread misconception in the public about what will stand as proper service and what will get a Defendant (at least temporarily) out of the courts. Here are the top three arguments I’ve heard that service was improper and the reason that these will fail most people in Colorado:

  • “I know the person who served me”/”I don’t know the person who served me”

The only restrictions in Colorado regarding the person serving the Summons and Complaint are that they be over the age of 18 and that they not be a party to the action. You may get served by a Sheriff’s deputy, a professional process server, or just an adult friend of the Plaintiff. As long as they are over 18 and not a party, you will need to respond to the Summons and Complaint.

  • “They left the papers with someone else”

You do not need to be personally handed the Summons and Complaint in Colorado. You will be considered “personally served” if the legal papers are left at your home with a family member over the age of 18. You will also be considered “personally served” if the papers are left at your place of work with your boss, secretary, HR department, or any number of other co-workers. Special rules apply to Defendants between the ages of 13-18.

  • “I just refused to take the documents”

Colorado recognizes “service by refusal”. If you refuse to accept the papers, and the process server has reason to identify you as the proper Defendant, they merely need to state what they are serving and leave the papers behind in a conspicuous place. You’ve just been served.

Failure to respond to a Summons and Complaint is a dangerous game. If you have been properly served, a default judgment may be entered against you fail to show up in court. Any defenses or counterclaims that you may have had may be forever lost. If you have been served post-judgment documents such as Interrogatories or a Subpoena, your failure to show up in court may result in a contempt citation, or even a bench warrant, being issued against you.

If you have been served legal documents in a civil matter and need help responding, call one of our civil litigation experts at 303-763-1615 or email carolinekert@danieltgoodwin.com.

I Haven’t Been Paid, But They’re Using My Images!

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By: Caroline R. Kert, Esq.

I’ve noticed a recent trend with artists calling to get help resolving a contract issue. The scenario usually unfolds something like this:

  • The Artist had been contacted by a promotor/client/other artist to help capture photos or video.
  • There is no written agreement, other than a few texts back and forth about payment rate and when to show up to the shoot.
  • The Artist does the shoot, edits their product, and provides one or several complete products. This can be a series of photos or a few versions of a promotional video.
  • The client begins using the completed works or forwards them on to their own client. The Artist usually finds this out by seeing the work on a website or FB feed.
  • The Artist never gets paid and receives continued assurances that payment will come once the client receives payment from their own client.

What a horrible position for the Artist to find themselves in, and what an unsustainable reputation for the client to establish within the market!

But, not all hope is lost—copyright law can help the Artist gain some leverage in negotiating a resolution. The main thing the Artist should remember is that copyright in the images remain with the Author until there is an affirmative act to assign or license those rights to another. The Artist is the Author and retains copyright, unless they are 1) the employee of the client or 2) there is a written, signed agreement that defines the work as a Work Made For Hire, assigns the work, or licenses the work.

Without a WRITTEN AGREEMENT, a contract Artist has not given the client any rights to reproduce, display, or otherwise use the work. This can often provide a lot of pressure to get payment when the Artist clarifies this to the client. Without rights in the work, the client is arguably infringing on the Artist’s copyright when reusing the work or selling it to a third-party. In our experience, a well-crafted cease and desist notice to the third party can generate immediate attention and payment.

Even with a written agreement, the doctrine of Work Made for Hire is often misunderstood by artists and their clients. Very few types of projects qualify for treatment as a Work Made for Hire. Even if there is a clause that attempts to identify the client as the copyright owner, it often fails.

Of course, every situation is different and you should contact a lawyer that specializes in artist representation before taking action. Your attorney can help you review communications and written agreements to assess what next steps can help you get paid.

To help minimize the potential for conflict, always get your agreement in writing and clarify when payment is due (payable in stages with various deliverables, and never dependent upon whether the Artist’s client gets paid by a third party).

If you need assistance getting paid for your work or understanding the contract you’re being asked to sign, contact me at carolinekert@danieltgoodwin.com; 303.763.1615. I’m happy to help.

 

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.

FAQ: “If I make a personal injury claim, will I have to go to trial?”

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In Colorado, individuals who are pursuing personal injury claims relating to an auto accident have three years to file a formal lawsuit against the individual at fault for the accident for compensation of their medical expenses, lost wages, physical impairment, and pain and suffering. During these three years, the majority of cases settle directly with the at-fault driver’s insurance company.

Whenever a personal injury claim is made, the insurance company who provides coverage for the at-fault driver assigns an adjuster to the claim. The adjuster evaluates the claim, reviews all relevant documents, speaks with the individual’s attorney, and may take a recorded statement from the individual making the claim. This is where it becomes vital to have a personal injury lawyer representing your claim to the insurance company. A personal injury attorney will know what documents are needed to support your claim and how to present those documents and facts in a way that will maximize the amount of the insurance company’s settlement offer. Presenting your claim to the insurance company is a comprehensive and skilled manner will often allow an injured person to fairly settle their claim without having to go through the time, expense, and uncertainty of a trial.

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)

Tips for Preparing for Your Initial Attorney Consultation

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To improve the quality of the consultation, as well as the case once it is accepted by the Firm, it helps if you prepare for your initial meeting with the attorney.

Before you come to the meeting, gather all documents, contracts, agreements, statements, invoices, guaranties, tax documents, notices, witness statements and/or witness information, pictures and videos, etc., you have in reference to your matter.  If at all possible, sit down and make a timeline or a history of the issue so that dates and events flow in the proper order and the storyline is easier to understand.  A journal or diary would be beneficial throughout the matter.

If you are seeking assistance with preparing a contract or a promissory note, take a moment to create an outline of the points to be addressed in the contract and note the consideration and who will be responsible to perform which point.

If you are an individual seeking assistance with an employment matter, sit down and make a timeline or a history of the issue so that dates and events flow in the proper order and the storyline is easier to understand.  Include your start date, your title at start, your pay at start.  You will want to include any changes to that information up to the present date.  Also include any problems there were, evaluations, and any commendations or awards you received.  Please provide any company policies you may have.  All of this information is important in the resolution assessment.

If you are an employer seeking assistance with an employment matter, please bring the employment file, company policies, and an outline of the issues to be discussed so that a proper resolution can be assessed.  If you are seeking to create company policies, then bring in an outline of the issues you have and ideas on policies you desire to create to address those issues.

If you are seeking a consultation in reference to a potential litigation matter (collections, business and owner disputes, real estate dispute, evictions, appeals, partnership conflicts, minority shareholder suits, family business issues, breaches of contract, employment matters, etc.), please make certain to bring all the documentation to show your position from start of the relationship to the present.  In this type of matter, it might be an easier presentation of your matter if you make a timeline and then support the timeline with any documentation, etc., that you have.  As many names of involved parties should be ready to be provided.

If you are seeking a consultation in reference to tax resolution (tax liens, levies and garnishments, audits penalty abatements, offers in compromise, etc.), then please bring whatever documentation you have regarding the situation, including copies of notices and your tax records for the past few years (or more if the situation in question began before then) to the present.  Here again, a timeline or history of how you got into the situation, along with any supporting documentation would be beneficial.

If you are seeking a consultation for intellectual property, bring (as best you can) the property with you when you meet with the attorney.  A copy will be needed for any application.

If you are seeking assistance for a small business or arts and entertainment (contracts, partnership agreements, business sales and purchases, franchises, etc.), bring whatever contracts or agreements for which you seek assistance with you.  If you do not yet have a contract or agreement, bring the outline of the points you are looking to incorporate into a contract or agreement.  If you are considering the start of a business or seeking to form an entity or obtain a liquor license, then bring your ideas and any documentation you have accumulated surrounding those ideas.

If you were involved in a collision and have sustained injuries, you might want to bring pictures of the damaged vehicles, videos of the scene, a rough sketch of the positions of the vehicles drawn out, a complete copy of your insurance policy, a copy of the police report and/or card of the responding officer, any witness information provided to you, and any pharmaceutical, medical, billing, and other expense records that you have in your possession related to the incident.  Keeping a journal or diary of who you treated with and when, work/school you missed and why, prescriptions, out of pocket costs and expenses, limitations and the steps taken to work around those limitations now in your day-to-day life due to the injury would be beneficial through the matter.  You might also include a list of equipment, people and companies or organizations (along with their cost) you have had to depend on and their expenses and limitations that they have had in providing you the assistance you have required since your injury.

Likewise, if you were involved in a personal injury resulting from a slip and fall, you might want to bring pictures of the location of the slip and fall in order to show what caused the slip and fall.  You will want to compile as many of the same things you would had you been involved in a collision.

If the matter you have involves a wrongful death or a medical malpractice, bring a copy of the medical records from the date you were first aware of the potential malpractice or the treatment that caused the wrongful death, and a written statement from a doctor identifying the potential malpractice or other information, witnesses and evidence surrounding the wrongful death.  Before a wrongful death or medical malpractice case can be filed, an expert in the subject field will need to be located and services paid for a determination that there was (or was not) practice below the standard of care.  The attorney can help you to find an appropriate expert.  The cost for the expert opinion varies.

If you seek assistance with a real estate matter, please note that no one in this Firm is a licensed broker.  That being said, as attorneys, there are a number of real estate matters that can be handled such as disputes (including non-litigation and litigation), contracts of any kind, transactions, closings, transfers, deeds, lien review and placement or removal.  You will want to prepare an outline of the issues, people involved, real estate involved, and lien information so that it is clear the type of assistance you will require that can be provided.

If you seek a power of attorney for some reason, then decide exactly what the power of attorney is for, the length of authority to be given, and who you trust to responsibly handle that authority.  Bring in any documents that might pertain to subject matter of the power of attorney you desire.

If you seek to establish an estate plan, you will need to bring information on your family and potential heirs (names, addresses, relationships to you).  You will also need to make a list of your assets and determine what you would like to have happen to them.  You might want to determine how you would like to proceed in the event of your death, i.e., funeral, memorial service, cremation, burial instructions.  Further considerations might be whether you want a power of attorney or a medical power of attorney (also known as a living will) and the extent to which you desire to allow your power to be shared and/or your health care plan should you become incapacitated.  If you would like your estate plan brought up to date, then please bring your current estate plan with you.

If you seek assistance with a probate matter, please bring a copy of the will (assuming there is one) and any other documentation you have regarding the probate estate.

The more information you bring with you, the easier it is for the attorney to see and understand the overall picture and how you are affected by the circumstances.  The attorney can review the documents and information and make a more knowledgeable assessment of your matter and advise you accordingly.

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.

Red Bull Settles Lawsuit for $13 Million

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Red Bull recently settled a 2013 Class Action lawsuit for 13 million. The cause of action? Because drinking red bull did not give its customers wings.

The lawsuit against Red Bull, led by Benjamin Careathers, claimed that consumers of the drink did not benefit from any mental or physical enhancements, though the product states in its advertisement that it “gives you wings.”

A Class Action lawsuit is a suit where a group of people, under similar circumstances, sues another party, which is usually a corporation. A Class Action can have numerous benefits, including lowering the cost of litigation and improving the efficiency of the courts. Additionally, it is a method used to attempt to control the class of people that the Defendant is a part of. However, Class Actions have several criticisms. A major critique is that they undermine the public’s perception of the court system.