The Advocate Source
Welcome to The Advocate Source, where we simplify the law for life’s toughest moments. From personal injury to family disputes and business conflicts, we’re here to help you understand your rights and take action.
The Advocate Source
EP#5: Navigating the Complex Landscape of Personal Injury Damages
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It's the amount of anguish and the amount of loss and the amount of heartache that we, as humans, have to go through when we have something taken away from us, whether it's our ability to be free of pain or being close to a loved one. That's pain and suffering.
Speaker 2:Welcome to the Advocate Source, where we simplify the law for life's toughest moments, From personal injury to family disputes and business conflicts. We're here to help you understand your rights and take action.
Speaker 3:Welcome back listeners and viewers. Charlie McDermott, producer of the show, once again here with the star of the show, alessandro Asante. Alessandro, how are you doing?
Speaker 1:Hey, charlie Good, thank you very much, nice to see you.
Speaker 3:Great to see you. You have a good 4th of July holiday 4th of July was good.
Speaker 1:I was up in Northern, my kids were racing mountain bikes and so it turned out to be a 500 mile day. I left there that Monday morning, drove up to further up north to Mill Valley, had to inspect a home on another case I had, and then drove all the way back. So it was about 500 miles on the road. You did that in one day, did one day. We were pretty wrecked when we got home so we were just barely above water for the remainder of the weekend going into the fourth. But it was good.
Speaker 3:That's awesome. That's awesome. Welcome back here. As always, we're going to dig deep into a topic that allows you to share your expertise and help a lot of folks, which you've been doing in these episodes. I know much appreciation from everyone. Today is another really important topic. We're going to get into the types of damages that can be recovered in a personal injury case. As always oh, go ahead.
Speaker 1:No, wonderful, it's a great topic and there's a lot to go through, and so, yeah, I'm excited to take this on with you.
Speaker 3:All right, let's, as always, start with the foundation. What are damages in a personal injury case and why are they important?
Speaker 1:Okay, so there's really two types of three types I guess you could call it. We'll do three instead of two, and the reason why I say I kind of changed between three and two is the one that doesn't always come into the play in a personal injury action. They call those punitive damages, and so I guess we'll start with that, because what those are if someone is harmed by an egregious act or an intentional act or a malicious act, then that allows the injured victim, which we'll call the plaintiff, to recover punitive damages. And so what that is is that's what they call is an amount that is by the jury would award that, and it's based on an amount that's not going to an amount that's not going to completely destroy the person's financial condition, but to punish them. And usually how that's done is sometimes we have a trial and we bifurcate those, or sometimes you don't. You plead and prove them in one, but generally we always bifurcate them, and the reason why is because it protects the jury from making a decision based on negligence and amount of damages, and then you're talking about someone that's going to punish them, and so things don't bleed into one another.
Speaker 1:They like to separate them. So when they call bifurcation meetings means two parts. So we get done with the trial and if the jury finds that there's malicious behavior behind the injury, then they set it for a second phase of trial. And what that means is that during the break usually they'll go two or three or weeks or a month the jury will come back and they'll hear the issue of damages, and so that could be damages according to what a person's net worth is or a company's net worth is, and so how we plead that and prove that is usually during that break we request documents such as tax returns and things of that nature to figure out what are the earnings of the company. And so sometimes we even have an expert to testify and say, hey, based on my review of the tax records and the financials, here's an amount that I would believe that would be appropriate, that wouldn't completely harm this company, but it would be an amount to punish them.
Speaker 1:And so that's what is the second phase of trial, that's what we call the punitive damages phase, and so that's according to network worth, or an amount that the jury determines is an amount that's not going to destroy the person but to punish them. So that's the third one we call it, but that's not always available in cases, because sometimes and most times, people harm one another or harm somebody by a negligent act, meaning that it's not intentional they never had an intention to hurt anybody. But sometimes, because of our human nature and our fallacies, we make a mistake, we don't pay attention and someone's hurt, but that certainly doesn't arise to malicious behavior or intentional conduct. Okay, drunk driving is one of those things that they allow punitive damages in because they're saying you're drinking and you're intending to drive, you're reckless.
Speaker 1:You're going out there and you could potentially kill somebody. So those types of cases. So the other two we'll talk about is economic damages and those are called special damages, and then the other one is pain and suffering.
Speaker 3:Okay, okay, let's start with economic damages. And why are they the easiest to calculate?
Speaker 1:They are Charlie, that's because they're a certain amount that's based on the numbers. Those numbers essentially don't lie, as they say. It's something where you'll get a medical bill because of your injuries or you'll have a loss of wages because of your injuries, you'll have property damage, a damaged car, or you lost a phone or it could go anything. We're always when we get a case. It's mainly the first thing we start to look at is getting the attention for and making sure that the plaintiff or the client is getting the requisite amount of medical attention, the right amount, so they can document their injuries and actually treat themselves and give themselves the best chance of getting better, making the best recovery they can. So those are medical expenses and you get the bills at the end of the day and there's a lot of changes in bills and we always look at the medical bills and whether or not the people have insurance. So in California there's a law that says that you can no longer bill based on or request an amount of damages based on what was billed, because if you've ever been involved in an accident, you know whether it was falling down the stairs on your own or you get a cut and you go to the emergency room and you see this huge bill and it could be $1,000 or something. And then the next thing, you have insurance and then they pay the bill and guess what they pay? They pay two or three hundred dollars, right? So you can't go to a jury and say, hey, we got billed a thousand dollars, so I want you to pay my client a thousand dollars. And what does that mean? That means that my client was unfairly compensated too much. The defendant, the person that injured somebody, shouldn't have to pay an amount that wasn't paid by the insurance carrier Okay, or some other. Sometimes we have people that are on Medi-Cal at the end of the day and you're looking at $200,000, $300,000 that they paid and the hospital accepted. So if the hospital accepts that amount, then it's deflationary, means that the only amount we can claim from the defendant is the amount that was actually paid by, whether it's a carrier or the client themselves, because they have out-of-pocket, or the insurance company that did ultimately pay the bill themselves, because they have out-of-pocket, or the insurance company that did pay ultimately pay the bill, because in personal injury actions we have a duty to compensate whoever paid. So if insurance company, health insurance company, pays for our client, guess what? We have to pay that back. The health insurance carrier Okay, we only pay back the amounts that they paid, and that's and it seems like it's an equitable, fair type of situation, because you certainly don't want to say I'm owed $1,000 when you actually paid two.
Speaker 1:Okay, so that's the medical. So complicated again. Right, you think, okay, medical bills, here you give them the bill. No, it's one of the most complicated things we do as an attorney, especially when the cases get really extensive. We've had people that have nearly lost their lives, had substantial brain damage, and you're getting bills in millions right the day. You're looking for people to pay them or public agencies may pay them, and so we're waiting for these.
Speaker 1:Medi-cal liens are statutory. It means that we have to abide by them. We have to do everything we can to make sure that fund is paid back and so you know when somebody else is injured in the future, that fund exists to help people that don't have medical insurance or the requisite amount of medical insurance by law, we have to pay those people back. So it's a very complicated thing and sometimes that process doesn't end until long after the case is done in chief, because once we get the money. Then Medi-Cal will finally say, okay, this is our lien. Thanks that you have the money. Here's what our lien was going forward, and this happens to all kinds of medical providers whether they're private, like, for instance, the other day I needed an MRI.
Speaker 1:My health insurance says, despite neurosurgeon saying I did, my insurance company says sorry, we're not going to, we don't think it's medical. And you know what I did. That MRI was about $1,200. I went and paid cash because I knew the MRI facility and guess how much it was $400400. And guess how much my insurance company pays $400. Yeah, it's just a myriad of complications and that's our medical system. Unfortunately it's just not streamlined so we have to wade through all this stuff. But in general, when a person's injured, I'll get back to that. People shouldn't have to worry about that. That that's our position, that's our expertise, that we do. But if you ever go to this stuff on your own, I see so many clients saying you know what? I tried to solve this on my own. I can't do it.
Speaker 1:Please help me this is so complicated For hospitalization, treatments, surgeries, medication, rehabilitation, all those things surgeries, medication, rehabilitation, all those things and if you're talking about a trial, we need to calculate what is the future amount of those medical expenses. So someone who had a medical malpractice case and they had a diagnosis that was missed and because of that diagnosis they have a much difficult time either curing themselves or they had a heart attack in the interim and so all those damages that are looked forward in the future for the potential remainder of the patient's life, we have to request an amount of medical bills that would compensate him for the extra amount of medical attention that that person would need because of the misdiagnosis or the injury. Sometimes people get hurt, they lose a limb. What are they going to need to survive? And that could be extremely expensive going forward into the future because you have prosthetics and all kinds of therapies and things like this. So we have to get what they call is kinds of therapies and things like this. So we have to get what they call is.
Speaker 1:We generally hire somebody that's called a nursing services expert and they're the ones that go in, they interview the client, they take a full look at these things and say based on my experience as a nurse, as a doctor, consulting with doctors here's the types of treatment he's going to need for the remainder of his life, and that could be calculated through actuarial tables. And then they come to the conclusion that this is the amount that they'll need. For instance, they're going to need another $300,000 on top of what they normally would have done, but for this injury. So the person has 16 years to live. How do they calculate that? That they don't give them 300 000, because again we're going back to this what's equitable, what's fair. And so what they do is they call this the net present value of that 300 000, right, and so they're thinking okay, so you're going to have to distribute this money over the next 16 years or 15 years, let's say we'll call square numbers and over that 15 years of your life it's going to be approximately equally divided. Or when you get further out, you're going to need more attention as you get older and we're able to calculate those cash flows or the amount we're going to need. And so then we have to bring that all back to the present, based on interest rates, based on the amount of cash flows that are going, and so we can calculate what the current value that you would need to throw in the bank and it's going to cover all those outlays over those next 15 years. So that's called the net present value of future medical attention and the same works for.
Speaker 1:The next category of damages is lost wages and loss of earning capacity. Same works for loss of earning capacity and lost future wages Pretty much one and the same. Okay, little difference of a nuance. Lost wages means that if you had a solid job and you know at the time of your injury and you lost that job and you had no other plans to get any other work and you were close to finishing, then they could calculate that based on loss wages.
Speaker 3:They do the same thing.
Speaker 1:They say okay, you're going to make X amount, with increases because of inflation and because of your ability and your historical raises, we can calculate what you're going to need in the future, what wages that you lost. Getting to more complication, let's say that you were in between jobs and unfortunately you had an injury right and that injury made you less able to travel, less able to walk. You had a job where you were on your feet for a percentage of the day, whether it's 50, 20, whatever it is, and we have experts and when we do that is we're able to calculate what is your loss of work capacity. Okay, a little more complicated, but we're talking about a person's ability to earn a living. So they may get back to their own job, they may get back to modified duty, but then they're going to suffer some type of loss because they no longer have the capacity to work 100% or whatever they were at the time of the accident. So if you have a person that is only at 50% capacity and he's earning some money, then we calculate based on his potential future earnings. If he was 100% healthy, we can calculate the loss of earnings capacity. So those are the wages losses that are calculated in the economic damages.
Speaker 1:The next category is property damage. Okay, and that is exactly what it says. That is the amount of personal property that you have, whether it's watches, phones, jewelry, that you lost, a car right, totaling the car or having it fixed. More complications with the cars. I have a case coming up at the we just got to continue, so probably in October. Now is a gentleman had a classic car. He was rear-ended and they were able to fix it, and so, because it's a classic car and it's in demand, what we were able to do is thanks so much to the person's insurance company to fix it. However, if he went to sell it and he had to represent what you should to the buyer, that I suffered damage to this car, and here's the amount of damages that we suffered Guess what that person that wanted that car wouldn't be so glad to have that car anymore, because usually when we buy things, we look for them in pristine condition, especially when they're collectible cars, and so we call that the diminution of value, right, and then we can calculate that.
Speaker 1:And so next in August now, or October sorry, I was going to go to trial in August but we decided to push it to October because of some complications with our experts being able to attend their their depositions. So we have experts able to testify to the loss of value of that car, despite it being fixed, despite it looking perfect. What is the loss of the intricate and innate value of the vehicle? And so we're going to trial over that issue. So that's, you have property damage and that's the amount to either replace or fix your car. Now, if you replace your vehicle, then you're not entitled to the diminution in value Because, guess what? You don't have the car anymore. But you were compensated, hopefully the market value of the vehicle, had you not been in the accident. But if you get something fixed, obviously the market value isn't what it was Property damage.
Speaker 3:Okay, wow. So from a documentation standpoint, for those three different categories the medical expenses we're putting together all of our bills and what part insurance covered, and so forth, lost wages and earnings. Are there any other documents that are required for that? Or property damage, or did we miss anything?
Speaker 1:Yeah, it's just generally the documents as you go through. You'll have medical bills, medical reports. Those are important to calculate your injuries and to calculate which will have another category of damages we'll discuss, but those are all important. Getting receipts, getting receipts that you would generate, like, for instance, you're going to the physical therapist when you get up on your feet and you're going there three times a week and you spend an extra $50 in gasoline a month doing that. So those are all compensable damages, right.
Speaker 1:And then the property damages, it's repair receipts, it's the value of your vehicle or the diminishing value of your vehicle. So it's just an accounting, is really what it is. It's an accounting exercise. And then there's other losses, right, that are financial and they call those substitutes for domestic services, right.
Speaker 1:So, for instance, if a person, despite him having a disability after the accident and he can no longer do things that he normally did at home like some people are very good with their hands and some people like to put their own Christmas decorations up or clean the house and do all those things, and guess what, if the person's not able to do that in the future or not as able to do it, then those are called losses for domestic services, and so that's the last category, or business opportunity is another one, but those are things that we can no longer do. Personal household services we have to get someone now to cut our lawn or take care of our trees that we love to go out and prune. All those things that you can no longer do are special damages as well.
Speaker 3:Okay, okay. So then let's get into the non-economic damages, and we've heard this a lot pain and suffering, so figuring out compensation for pain and suffering. So let's start with what are non-economic damages and how they differ from economic damages themselves on any financial loss.
Speaker 1:Okay, they're based on what type of injury you had, obviously, and the result that you ended up with and what you had to do to go through that. Okay, and so they call that the. For instance I always tell juries is that we don't realize how special and how valuable life is when we're not in pain or we're not worried about something or we don't miss somebody, right, and we don't think okay, so a person goes out and he earns $20 an hour, but life is worth so much more than that. And so we always try to tell juries it's not based on a wage, it's not based on anything of that, but it's based on what do you calculate? A person who is suffering loss loses, right, and we always say what do I pay for enjoyment? Right, sometimes people go to concerts and they pay exorbitant sums because that's their enjoyment. Or they go to the movie and they pay now $20, $25 for an hour and a half movie, and so this is how we start to be able to get juries to be able to see how much we do actually pay for enjoyment, because we take it for granted, because it's not like it's money coming out of our pocket per se, because we're all living, we're all going through, and it's certainly not related to anything we earn. It's much more valuable and life is much more valuable. So that's what we say. Is that, and life is much more valuable. So that's what we say. It's that okay?
Speaker 1:So someone gets injured and they have to go through 10 or 12 surgeries and they have to go through therapy for the next two or three years, or maybe even for the next 10, or they don't have a, they can't run anymore, or they there's certain things that we're taken away from. So all those things go into say, okay, what did they suffer? They lost their dignity, they lost their comfort, they lost them being able to sit with their family and not hurting. So those are pain and suffering, damages or lose a loved one, right? What's that worth? And so when we get down to start to talk about what we pay for enjoyment and we start to say, okay, we're paying for enjoyment, and this person is suffering all the time, it starts to say, okay, $25 an hour, times 24 hours a day, times seven days a week times, times 24 hours a day, times seven days a week times, and then the numbers you, they get enormous and the juries finally start to realize that life is to be able to live free and to be able to live pain-free and do the things we love and see our loved ones. It's a big cost that we lost, big loss, and so that's what pain and suffering is. It's the amount of anguish and the amount of loss and the amount of heartache that we, as humans, have to go through when we have something taken away from us, whether it's our ability to be free of pain or being close to a loved one.
Speaker 1:So that's pain and suffering, same with emotional distress. That's the and suffering. Same with emotional distress. That's the next one. There's emotional distress, and those are usually left to stress claims or sight claims. Someone aggravated you or they did something that was really horrible to you intentionally, and those are called emotional damages. You had to go through therapy and those are called emotional damages. You had to go through therapy. That's what usually people do, is, when they have an emotional distress claim, is they usually go to therapists to be able to figure out and tell the jury, medically speaking, how this person has suffered. Okay, and those are emotional distress damages and they're calculated the same way.
Speaker 1:It's a loss. It's a loss. It's a loss of your dignity, a loss of your comfort in life, and then you're talking about the loss of enjoyment of life. These all bleed in together. Loss of enjoyment of life could be you lost a limb, or you lost an eye, and you used to have a hobby and you can no longer do that. That's what you call a loss of enjoyment of life.
Speaker 1:Okay, and then the last one.
Speaker 1:So there's four.
Speaker 1:The last one is a loss of consortium, and those are claims that are brought derivatively by the spouse who was injured, for instance.
Speaker 1:I had many cases, and so, as attorneys, when we see a horrible accident and we see a change in someone's lifestyle forever, permanently, then we as lawyers have a duty to ask the couple whether there is going to be a loss of consortium claim. And they may not have one now because soon after the accident, but we like them to be cognizant of it. So if they do experience a loss of a relationship or a loss of a companion, you had a husband that was able-bodied and he was in good shape and you did hobbies together and you traveled and that was your thing, and you went out to dinners. And at the end of the accident, either because he had a misdiagnosis or he had an injury and he can no longer see or he can no longer walk or he can no longer have sex with sexual relations like before. That's what you call loss of consortium. Okay, so that's derivatively bought in by the partner who is injured if they're married.
Speaker 3:So I can see how all four of those can easily bleed together. Yes, where do you even begin? These damages don't have an exact dollar value, so how do attorneys or courts calculate them?
Speaker 1:Yeah.
Speaker 3:And as.
Speaker 1:I said, there are many things that we try to do to be able to foresee what a jury would do, because basically that is how everything's resolved with an insurance carrier or with a person who owes money because of the injury. But most times insurance carriers are behind these things. Sometimes they're not, because you have a self-insured public entity or big company. So how they're calculated is they're based on statistics, right? We have jury verdicts of similar injuries, of similar types of accidents, and so we go and we get all this information and we say this jury verdict was a million dollars and this one was 500,000. And we try to figure out okay, what was the difference in this one versus that one? Was the person older? Did he have less of a good result? Sometimes people get horribly injured and they come out and they're pretty good. They're not quite what they were before the accident, but they made a miraculous recovery.
Speaker 1:Sometimes they don't, and so usually when you're older you don't make as great a recovery, or when you're older you don't have as many losses moving forward, because you can only calculate those losses for the statistical survivability. There's actuarial tables like how long the person's going to live, so all those things have to do with calculating those types of things and so generally. So there's statistics, there's prior jury verdicts, there's. They can be based even on the type of client. You have right. So many times we go in front of and we do all this written discovery and we never see anybody who's on the other side of the written discovery, and neither do they. And it isn't. Until you either take a deposition or you get to a mediation and you finally meet those people, you may have a. For instance, I just got a case and horrible injuries, absolutely the worst injuries you could imagine. You know, I mean he just is the pictures would like they make you stop. They took photographs of his leg. He was crushed. What happened? He was walking by, he was a delivery person and an old, elderly lady was backing up and she didn't see him. And she came back and he knocked on her car just to let her know he was there because he couldn't get away because she was backing up too quickly and she panicked and instead of hitting the brakes she hit the glass and she crushed him into a wall.
Speaker 1:Yeah, and so you get there and you think horrible set of horrible, set of injuries, horrible set of circumstances. But guess what? The lady is a teacher, retired, she's in her 80s, she's got a dependent son and one asset, which is a home that she's worked for her whole life. She has good insurance, thank God. But then we have to assess what is the jury going to do? Because they're always supposed to be and there's always these instructions.
Speaker 1:You can't be sympathetic to somebody, but it flows into those. You certainly I don't think it's going to ever go to trial, but if you have that type of scenario, you cannot ignore somebody's and much of that will never get to a jury as far as her son and all these things. But you certainly see a kind old woman there and a jury is going to be less harsh or less true to her than to somebody that was of able-bodied and young and seemed to be assured themselves. So you always look at both parties and the same as my client, wonderful person, the salt of the earth honest guy is a lot different and a much more valuable than someone that had a criminal record, was never did well for himself or had trouble or whatever it is.
Speaker 1:And so sometimes those things do come out in juries, especially if someone like I have a client that may be had former convictions that involve felonies that were actually related, or they call them mens rea, which means that they were evil types of crimes.
Speaker 1:They weren't just simply stupid things, they were intentionally malicious things or nasty things stealing money from people and you got convicted. Guess what the jury's going to hear about that, and that's also a problem for us. So as lawyers, we go through all these scenarios to think how presentable is my client going to look if I go forward? Or how are is the defendant going to look on the stand if I need to put them on the stand? And those are things that are very important, regardless of the liability of the case, because those are all things we need to take into consideration, certainly to settle us Not saying that a person that had a prior criminal history and he's redeemed him or herself can't recover, but you need to take into consideration that juries are less likely to award somebody more money than someone that is an elderly lady or someone that's appealable to a jury. That's just our human nature.
Speaker 3:All right. How about punitive damages? When can they be awarded?
Speaker 1:Yeah, as we were saying at the front, and, like I say, they're not always awarded in things of a personal injury nature. In fact, you hear the saying is easily pled but more difficult to prove, because it's such a high standard to prove malicious conduct or intentional conduct or reckless conduct. And so how that's done is that you have to have like clear and convincing evidence to be able to hold them accountable for intentional conduct In just negligence actions. Hold them accountable for intentional conduct In just negligence actions. It's only just preponderance of the evidence. It means that if I get 50.01 and I can convince a client that it's more likely true than not, I get an award for my client to recover for his injuries. But punitive damages, again, not everyone and very few people are doing things intentionally or reckless, but sometimes you get people that are driving drunk or have had substance abuse problems and they never got over it and they hurt somebody or kill somebody, and so, based on that, punitive damages are available, and so those are calculated, as I said, based on net worth. They're based on net worth. They're based on the amount that this person makes or something that a jury would find would punish that person, and I've seen this was back in 2010,.
Speaker 1:I represented a large entity that did governmental work and one of the therapists, I should say was caught harassing a student. He got hit criminally and then he goes into court and they were able to get an admission that he was convicted criminally for this, and because there was no evidence of his net worth, the jury awarded her 35 000 in punitive damages because there was really no, no other evidence to show his net worth. Because he wasn't working, he was essentially undeservedly, he didn't have a job anymore. He lost his license to be a counselor, and so the jury said I'm not going to give him zero because that certainly wouldn't punish him. So as little as $35,000, that's what they awarded, and so the difference in getting a $35,000 judgment versus getting $100,000 negligence judgment is drastically different, because this person that can't afford a $100,000 judgment which in that circumstance, there was no insurance there.
Speaker 1:Had you had an automobile accident, the insurance company would pay for negligent claims. You read the fine print in those insurance policies they don't pay for punitive damages. So that punitive damages award is the responsibility of the person who was operating the car or hurt somebody. However, they did it. And so what happens? You got a tab you got to pay. You don't have a job. What are you going to do? And a lot of people say I'm going to go file bankruptcy. Guess what If the plaintiff who received that award for punitive damages can go into court and preserve that claim in a bankruptcy court? It is non-dischargeable. It means that you can discharge every kind of debt you have in a personal injury action, whether it's negligent, but cannot discharge the intentional conduct.
Speaker 3:Okay, okay, yeah, wow. So, as always, there's a lot here. So you got into the one factor that influenced how much someone can recover in a personal injury case. Are there any others?
Speaker 1:Yes, injuries, right, the type of injuries you have, the amount of care that you needed and the type of care Someone that has many more surgeries than someone that didn't. A jury is going to be saying, wow, they had to go under the knife and then their recovery was horrible, because they wake up and eventually they get off the painkillers and they have to bear all that horrible pain. And, yeah, usually people that have surgeries post accident or long periods of disability or they have permanent disabilities, they lost a limb or they got a scar right. Poor girl who gets in an accident. An airbag blows up in her face and it burns her face and scars her cheek. Can you imagine going through life with a scar on your face for the rest of your life and you have to tell everybody, oh, what happened to your face?
Speaker 3:Relive that moment over and over again.
Speaker 1:And so those are. Those are awards of more compensation, those are rewards of more pain and suffering or emotional distress or loss of enjoyment of life because you can't do a hobby. So those types of things that are permanent scarring and severe injuries and permanent injuries and extensive amount of therapy, those are the ones that have suffered more, and so the juries will recognize that while or if you settle it.
Speaker 3:Alessandro, how does California's comparative negligence rule impact the amount of damages someone can receive?
Speaker 1:Oh, that's a great thing. Okay, we talked about this before and so this is a little deeper dive. Comparative in state of California. It's a pure comparative negligence system here. It's not an on-off switch, it's not if you're 50 or more, you're liable, and if you're not liable it doesn't work like that. You can be 30% at fault, 20% at fault, 1% at fault at fault, 20% at fault, 1% at fault, and so basically, if you have a claim, let's say we'll make it a round number for $100,000 and that's what we're valuing the case at $100,000. If there had been no comparative liability or no comparative negligence, then what we say is if you were 30% at fault, then guess what? You get 70 grand, and that's how it works.
Speaker 1:And this happens a lot. And so person brings a report in and says that, ah, I've, I've had an accident and I had. I have a police report and it's in my favor, right, I said, okay, what happened? I was going through a light or I was proceeding down. Let's just do this, it's easier. I was proceeding down a thoroughfare and the speed limit is 50 miles an hour and there was a car wanting to pull out into traffic and ahead of me and he pulled out and I had no chance to react and I hit him. I hit the person trying to pull out into traffic. I said okay, and the police held the other person at fault. Right, police shows up, says what happened, tells him okay, you're at fault, not the score at all.
Speaker 1:We'll get back an argument from the insurance carrier or from the defense attorney say wait a second, that was a 50 mile an hour speed zone. You were traveling 65 miles. You were going 15 miles an hour over the limit, so you were exceeding the speed or you were driving conditions, and sometimes police will cite you for this. They'll say you were driving too fast for conditions and that happens, whether you could be going the speed limit, but guess what, there were people everywhere and you shouldn't have been going that fast because it's too fast for conditions. There's more traffic on the road, there's people in the area. So all those things work against you and they work in favor of the person who was originally assessed the majority of fault. However, you say okay, you bear some responsibility. The two people that were negligent brought this thing together to bear an accident, and so this accident is 70% my fault because, yes, I should have looked in my mirror and yes, even if you were going 15 miles an hour down the street, I should have seen you. However, if you were going 15 miles an hour down the street, I should have seen you. However, I didn't think you'd be that close because you were going too fast. Wow, there you go.
Speaker 1:There's comparative negligence. That's an example that we use and it happens everywhere. It can be comparative negligence on surgeons, for instance. A guy gets hurt and he goes into the hospital and the surgeon doesn't do a good job and he messes up, he commits malpractice. Usually there's a statute in California that says regardless of simple malpractice, the ultimate tort feature that caused it is responsible for it all. But guess what the defendant is going to do? He's going to sue the doctor and says hey, if I'm responsible for 100,000 of it, but you didn't perform the surgery right and you did it under the standard of care, you're partially responsible for my damages. And then we're off to the races. Yeah, yeah.
Speaker 3:So some closing questions for you, Alessandro. What should someone do if they want to know what their personal injury claim is worth?
Speaker 1:our research. We use it in just general questions to find things. We put things into AI just to make sure we're not missing anything. But in the end of the day, AI is not quite there yet and certainly I see more and more attorneys that are getting in more and more trouble when they're filing things with the court and basing their judgment or their motions or their papers or their arguments on AI, which can give you false cases and stuff. So what I'm saying is AI is a good thing to put you into the ballpark.
Speaker 3:Yeah.
Speaker 1:If you really want to know, because you may not have the expertise to program AI right, ai is only as good as the input that goes into it right. And so sometimes when I'm working with AI, right, ai is only as good as the input that goes into it right. And so sometimes when I'm working with AI, it takes me a half an hour to come up with the right facts scenario to get an output that I'm still not going to ultimately use. But it's going to put me in the ballpark. But it takes me longer to put my information into AI than to get it out. So I want to make sure that if I'm doing that, I want to have an accurate depiction of my problem.
Speaker 1:This happened the other day. I have a medical malpractice issue coming up, and so my client who had a heart attack because the doctor that he went to failed to prescribe statins and they just based on that, there's negligence because he failed to provide. But what's the causation factor? Would he have had a heart attack anyway? Right, then you have to say, okay, based on statistical evidence, just generally out there, it's only a 32 to 34 incidence of having a higher risk of heart attack. That's not enough to get it over the threshold for what I need to do and prove a case in medical malpractice. It has to be greater than 50, because that's the threshold. There's these keywords you use in medical malpractice terms and it is called beyond a reasonable degree of medical certainty. That means greater than 50%. So if all the statistical papers and all the studies say 30, how do I get over that? And so I did a study on AI, but I made sure that it was intricate to the patient himself because, thank God, he was on statins before he had changed his insurance, went to another doctor. The doctor didn't prescribe him statins, despite his blood levels now his cholesterol going way out of control. When he was off them he had a heart attack, went back on them and did remarkably well. So based on the fact that he was a good candidate for statins, guess what? That lowered his incidence. So statins sometimes can control people's cholesterol better than others.
Speaker 1:And because he was lucky enough to have that happen, I did a study on AI and I pulled in all these medical sources and I came up with a decrease in his decreased incidence of over 50. It was 57%. Is that enough? No, it's not. And the reason why I'm telling you this. I can't just give this to a court because it's not evidence, it's just studying the eye. But I said what I was able to do is get this to my expert and say listen, I want you to read this. It pulls from all kinds of medical sources. Tell me if you can support this in your testimony, because that's where the rubber meets the road in cases.
Speaker 1:So if anyone's going to AI right and getting a value of their case, they're going to get close, maybe, but they're never going to know exactly or close enough to what they can expect.
Speaker 1:If they're going to get that amount they think they deserve, what's it going to take? Just amount is one thing, but arguing that amount or arguing a fact pattern that would increase your chances of getting that amount, ai doesn't give you. None of these sources give you. So I always say go see a lawyer, see somebody that has the experience, because they have the experience to be able to see all of this and figure out okay, you can get this amount, but you're going to need to do this and this You're not treating well enough. You're going to have to argue this case, and so you give the clients the ability to see okay, this is what I'm going to have to face to get to the top of this hill. And so that's why I say if you're going to want to know a value of a case, do yourself a favor, go to AI, do your research, but don't just stop there. You need to go talk to somebody.
Speaker 3:Speaking of which your listeners. How can they get more information and learn more about getting legal help?
Speaker 1:Thank you, charlie. Certainly, yeah. They're always welcome to call me. I'm always willing to speak to people. It's at AsanteLawcom and it's A-S-A-N-T-I-L-A-Wcom, or they can call 877-245-3911.
Speaker 3:Terrific, terrific, terrific, terrific. Once again, over-delivered. Really appreciate you carving out time again today and we'll look forward to getting together sometime next month. In the meantime, no more 500-mile drives. In one day, stop at a hotel, see the sights. There's a lot of things to see in California.
Speaker 1:You know why I did that? It's because I had to get home so I can recover, so I could race my bicycle. I had a cross-country race on Tuesday and we're one of the sponsors, so I said I got to be home Monday night so I can go race Tuesday night.
Speaker 3:So what's a typical cross-country race? How far is it then?
Speaker 1:They range anywhere from 18 miles to 30 miles. Sometimes they're longer. They could go 40 miles, but it's essentially a sprint.
Speaker 3:I was going to say yeah, I'm sure it sounds like a lot to listeners at the front, because you know it's not going to feel good.
Speaker 1:But I guarantee you, after you're done with that race, the second, you stop and get a hold of yourself. You walk on clouds for the next two days, and that's what I love about it. It's such a fun, fun experience.
Speaker 3:Got another one coming up soon.
Speaker 1:Yeah, no, yes. On Sunday we're going to race up in Big Bear above a ski resort it's called Rim Nordic, and so it's a high elevation one, so we'll be up around 8,000 feet. So, yeah, I can't let my sons have all the fun.
Speaker 3:Love it, love it. That's great Boy. Good luck in the race and I look forward to seeing you next month. It's always a pleasure, charlie. Thank you so much bye-bye, all right thanks for listening to the advocate source.
Speaker 2:Visit asantilawcom or call us at 877-245-3911 to get the legal support you need. We are here to help.