-Litigation

In Arizona, and elsewhere, the statute of limitations imposes a deadline on the injured plaintiff’s various claims.  When the applicable statute of limitations deadline passes, then the plaintiff’s claims expire, at which point the plaintiff is no longer entitled to sue and recover for damages in an Arizona court of law.

For example, suppose that you are injured in a motor vehicle collision.  Given the seriousness of your sustained injuries, however, you spend most of your post-accident time and energy attempting to physically rehabilitate and reintegrate into your old lifestyle/career.  As a result, you wait too long to file your claims and the statute of limitations deadline passes.  You will no longer be entitled to compensation.

Importantly, the Arizona statute of limitations for injury claims — which runs for two years from the date of injury — allows for the suspension/extension of the deadline in certain circumstances.  This is known as “tolling.”  If the statute of limitations deadline has been tolled, then you may still have enough time to pursue litigation.

Tolling on the Basis of the Discovery Rule

Equitable tolling takes into consideration the possibility of a delayed discovery of one’s various injuries in the wake of an accident.  The application of the discovery rule is actually fairly straightforward, though many prospective plaintiffs are unaware of how it works.  Essentially, the statute of limitations period does not begin to run until the date that the plaintiff’s injuries are actually discovered, or until the date that the plaintiff’s injuries should have reasonably been discovered.

Consider the following example.

Suppose that you are involved in a car accident.  At the time of the accident, however, you don’t display any symptoms of injury.  A checkup with your physician (and some diagnostic tests) does not reveal injuries, either.  After two years, however, you begin to develop pain that is caused by the car accident (perhaps minor hairline fractures).  Despite the fact that the standard statute of limitations deadline has passed, you could effectively argue that the hairline fracture was not reasonably discoverable until a later date, and as such, the statute of limitations period did not begin to run until that later date.  You would therefore still have time to file your claims and potentially recover damages pursuant to litigation.

Automatic Tolling of the Limitations Period

In some cases, the statute of limitations period is automatically tolled when certain issues are present.  These include, but are not necessarily limited, to issues such as the plaintiff’s mental competence at the time of the accident, and the plaintiff’s age at the time of the accident.  For example, if the plaintiff is a minor at the time of an injury-causing car accident, then their statute of limitations period will be tolled until they reach the age of majority (i.e., age 18), at which point it will begin to run as normal.

Contact a Phoenix Car Accident Lawyer Today

If you have suffered significant injuries — whether in a car accident or otherwise — due to actions of another person or entity, then Arizona law may give you the right to sue for compensation.  Importantly, however, a statute of limitations deadline applies to all Arizona injury claims.  Waiting too long to file your claims can result in the expiration of such claims.  All is not lost, however.  Depending on the circumstances, your attorney may be able to convince the court that your limitations period should be “tolled” or “suspended,” thus extending your deadline and giving you a revived opportunity to pursue litigation.

Schedule a free consultation with a skilled Phoenix car accident lawyer today — call (602) 535-1900.  During your initial consultation, we will evaluate your injury claims and help you develop a roadmap to full and adequate damage recovery.

The time after an accident can be very confusing. You have to decide what to do next regarding your expenses and damages. According to principles of tort law, if an injury is caused due to another party’s negligence, you are entitled to compensation for the damages suffered as a result of that negligence. Accident victims have a choice between settling a case or pursuing a lawsuit against whomever is responsible for injuries. Understanding how this process works in personal injury cases can help in making the best decision for your case.

Retaining Legal Help

It is always best to gain the help and advice of a lawyer as early in your personal injury case as possible. This means that you should call an attorney promptly after a car accident or other incident from which you sustain injuries. By talking to a lawyer early in the process, you can learn more about your legal rights and how to gain the compensation you need for costs incurred and damages suffered.

Having an injury lawyer on your side early also helps to prevent you from making any mistakes that may negatively affect your case. Examples of such mistakes include making statements to the defendant that can later be used against you. Personal injury lawyers are highly experienced in personal injury claims that include:

  • Auto accidents
  • Slip and falls
  • Premises liability
  • Defective products
  • Medical malpractice
  • Other personal injury cases

Filing a Claim

The victim must often file a claim against the defendant’s insurance provider. If injuries were sustained due to an auto accident, the defendant’s auto insurance policy will be involved. When the case is because of an accident on the defendant’s property, the homeowner’s or property insurance company will be involved. For other types of accidents, commercial insurance carriers may be party to the case.

Personal injury attorneys assist the victim throughout the case, including for filing of the claim. The lawyer may also help the victim prepare a statement about the accident and advises the victim of things they should not do, such as allowing an insurance company to record a statement from them without the lawyer being present.


Stages of Claims

Claims go through case stages after an accident, which may include some or all of the following:

— Investigation
The insurance company of the negligent party will conduct an investigation after a claim is filed against them. This investigation will determine who or what caused the accident, where responsibility lies and if the victim is responsible in any way.

The victim’s attorney may also conduct their own investigation to compile evidence to back up the claims of the victim. This investigation may include taking photos of the scene of the accident and documenting injuries suffered by the victim.

— Negotiation
After the investigation, the victim’s lawyer will likely negotiate with the insurance company and/or the defendant.

— Demand Letter
A demand letter is often sent by the personal injury lawyer to specify why the victim is entitled to compensation after the accident. This written notice will provide details of the accident and the victim’s injuries. A specific valuation of the damages may be specified in the letter.

— Counter Offer
Demand letter amounts are rarely accepted by insurance companies without a counter offer. When the insurance company provides a counter offer, the victim’s lawyer will help the victim decide if that amount should be accepted, negotiated further or rejected.

— Settlement
If the victim and the insurance company come to an agreement regarding claim value, the case may be settled out of court. The victim will likely have to sign an agreement stating that he or she will not make any further claims against the defendant or their insurance company. Settlement money can then be exchanged.

— Filing a Lawsuit
When negotiation fails to bring all parties to an agreement, the victim has the right to sue. Filing a lawsuit starts the litigation process with a complaint filed with the court by the plaintiff’s attorney on his or her behalf. This complaint specifies who the parties in the case are, the victim’s residential address, jurisdiction of the court and legal basis for claim recovery.

A filed lawsuit makes a request for damages in a specific dollar amount. A sheriff, private process server or other mechanism recognized by rules of civil procedure in the state then serves the defendant with the complaint. A specified time period is provided for the defendant to respond. If the defendant does not respond before the deadline, a default judgment is made. Each jurisdiction provides its own time period for a default judgment, with the most common time period being thirty days.

Filing a lawsuit does not automatically send a case to a jury trial. The defendant can still opt to settle the case with an acceptable settlement offer. If the parties come to an agreement, the case is removed from the court docket. Cases are dismissed for other reasons, such as:

  • Case is without legal basis for recovery
  • A judge’s summary judgment is made based on state law

If you have been the victim of an accident or personal injury due to someone else’s negligence, you should seek the advice of a personal injury lawyer. An attorney can advise you regarding options in your case and whether it may be best for you to settle the claim with the insurance company or pursue litigation based upon the circumstances of your particular case.

If you have been injured in an accident due to the fault of another, you may be entitled to sue and recover damages under Arizona law.  Plaintiffs often forego pursuing litigation, primarily because they are uncertain about whether it is worthwhile to go through the effort for a small recovery.

Until you consult a qualified Phoenix accident attorney about the case, you will not have an accurate appraisal of the damages.  We therefore encourage you to contact Hirsch & Lyon for a case evaluation so you can learn more.

For now, let’s explore some of damages typical of a personal injury dispute.

Identifying Losses and Gathering Evidence

In the context of personal injury, your losses are likely to vary significantly on a case-by-case basis.  For example, if you suffer injuries in a car accident that are not “catastrophic” and you are able to return to your career after a few months without any significant impairments in your ability to perform your job responsibilities, then you may have a significant damages claim for wage loss accounting for those few months of being unable to work, but not for the loss of earning capacity, as your earning capacity was not, in fact, diminished.

Depending on the circumstances surrounding the accident and subsequent injuries, your losses may include the following:

Medical Expenses

In the wake of an accident, injured plaintiffs may recover for all their health-related expenses, including doctor visits, prescription drugs, diagnostic exams, counselor appointments, chiropractic exams, physical therapy, occupational therapy, and alternative medical treatment.  The defendant may attempt to argue that some of the treatment is not “reasonably necessary” under the circumstances.  You can counter this argument with supportive testimony from your treating physicians and other medical experts.

Lost Wages

Our skilled Phoenix accident attorneys know that injured plaintiffs are entitled to recover damages for their lost wages/income.  This includes all missed work time due to their accident, missed job opportunities, missed interviews, missed client meetings, and all other lost income (i.e., lost sales for a commission-based earner).

Loss of Earning Capacity

If you are injured severely enough that your future earning capacity is limited in a significant manner (i.e., you are blinded, and are therefore unable to continue working in as a lab technician), then you are entitled to damages for the lost earning capacity associated with that impairment.  You will have to compare your new earning capacity with what you would have earned in the future — this will require a lifetime analysis of future earnings.  Loss of earning capacity is more difficult to prove than lost wages, but you can effectively do so by introducing supportive vocational expert testimony.

Property Damage

As a personal injury plaintiff, you are entitled to recover for any damaged property and incidental expenses associated with the accident, including the cost of repairs or replacement (for your vehicle), rental car expenses, travel expenses, household assistance, and childcare expenses.  For example, if your car is totaled in an accident, then you may need to pay for a rental car.  That rental car is an incidental expense that could be claimed in the ensuing litigation.  Speak to a Phoenix accident attorney to discuss the specifics of your situation.

Pain and Suffering

Pain and suffering damages comprehensively accounts for the suffering that a plaintiff experiences in the wake of an accident.  For example, if you fracture your pelvis in a car accident, then you can recover for the subjective pain that you experienced due to that injury.  Intense pain leads to greater damages.

Emotional Distress

Emotional distress can best be described as the psychological pain sustained in relation to one’s injuries.  For example, if you have received burn injuries on your face and hands, then you may experience significant emotional distress due to the social stigma associated with your aesthetic losses.

Proving emotional distress damages will require extensive psychological diagnostic records and expert testimony supporting the fact that you have not only experienced such distress, but that it is as severe as you are claiming it to be.

You’ll have to do more than merely assert damages in order to successfully recover.  In personal injury litigation, documentary evidence (i.e., medical records, work payment records, contracts, etc.) and testimonial evidence (i.e., expert testimony regarding your pain and suffering, loss of earning capacity, etc.) are both extraordinarily valuable in supporting your claim for damages.  If you are claiming medical expenses, for example, you will have to introduce evidence of the treatment that you have received and how much the procedure costs.

Are Punitive Damages Available? Our Phoenix Accident Attorneys Will Review the Case and Advise

An award of punitive damages can significantly boost your damages, as they act as a multiplying factor on the compensatory damages total — for example, if you recover $100,000 in compensatory damages (i.e., medical expenses, pain and suffering, wage loss, etc.), then the court may award you punitive damages of up to seven times that amount, for a total of $800,000.

Unfortunately, punitive damages are not often available.  The plaintiff may only qualify for punitive damages if they can prove that the defendant acted willfully, maliciously, and/or with reckless disregard for the safety of others.  Further, even if the plaintiff “qualifies” for punitive damages, the court may exercise its discretion in awarding them. Our Phoenix accident attorney can further explain this during the initial consultation.

The fundamental reasoning behind an award of punitive damages is quite different than what many plaintiffs initially expect.  Simply put, punitive damages are not intended to compensate you for your various losses but are meant, instead, to punish and otherwise discourage the defendant (and other similarly situated parties in society) from engaging in the sort of willful and malicious behavior that the case is centered around.

If you could potentially access punitive damages, your recovery could be striking.  Many multimillion-dollar personal injury lawsuits are actually reliant on punitive damages to reach those significant dollar amounts.

How “Certainty of Success” Impacts Damage Recovery

Most disputes are resolved through settlement.  Each party compromises, agreeing to an amount that is less than the maximum claimed damages in an effort to avoid the cost and uncertainty of trial litigation.  As such, understanding what you are likely to recover through settlement is fundamental to understanding the true damages potential of your claims.

In a settlement, the amount that the defendant will agree to offer depends largely on whether your claims are likely to succeed (should the case proceed to trial) and whether the claimed damages are likely to be awarded by the jury.

For example, if the defendant concedes that they are at fault and caused your injuries, then you have a 100 percent chance of “winning” the case at trial.  Suppose, however, that the evidence for your claimed $200,000 damages is rather scant, and in fact, there is a 50 percent that the jury will award you $100,000 in damages instead.  Given these risks, a reasonable settlement amount might hover around $150,000.

Contact Hirsch & Lyon to Setup a Free and Confidential Consultation With a Phoenix Accident Attorney Today

If you’ve sustained injuries in a motor vehicle accident due to the fault of another party, then Arizona law may give you a right of action for damages.  The pursuit of litigation may seem intimidating, but it’s important to understand that the damages you’re owed may be recoverable with the aid of a skilled legal advocate.

Here at Hirsch & Lyon, our team of attorneys has decades of experience working on behalf of those who have been injured in various personal injury scenarios — primarily motor vehicle accidents (car, truck, motorcycle, and pedestrian).  This focus affords us substantial insight into the unique issues likely to be encountered over the course of litigation in such disputes and helps us to maximize our client’s damages.

Ready to speak to one of our experienced Phoenix accident attorneys about your claims?  Send us a message online to arrange for an initial consultation today.  Consultation is free and confidential.

If you’ve been involved in an Arizona car accident, then you may not only be entitled to bring an action against the defendant for damages related to your injuries, but you may also be entitled to claim property loss as a component of your overall damages.  In fact, many plaintiffs are unaware that their injury claim may include a purely economic, property loss component, and are surprised to learn that those damages can be significant, depending on the overall circumstances.

The Basics of Property Loss in the Context of Car Accidents

In any injury lawsuit, there are both economic and non-economic damages.  Economic damages are objectively measurable and related to specific financial losses.  Non-economic damages, by contrast, are subjective in nature and are somewhat more speculative than economic damages.  Property loss claims fall within the category of economic damages, and are quite commonly encountered in the car accident context.

Suppose, for example, that you suffer serious injuries in a car accident — more specifically, you have suffered debilitating back and shoulder injuries, for which you have had to see many medical specialists and have had to undergo surgery.  Naturally, you would be entitled to assert damages for pain and suffering, medical expenses, emotional distress, wage loss, and various other losses.

You would also be entitled to fold your property loss into your overall damage claim.  If your car was totaled in the accident, then you might be entitled to recover the full value of the vehicle at the time of the accident, as well as the cost of a rental car for the interim period.  Alternatively, if you have had to get significant repair work done, you might be entitled to secure damages for the repair costs.

What many plaintiffs don’t realize, however, is that — even if they have paid for a perfect repair of the car — there is an additional damage claim known as “diminution in value” for which they may recover.

What is Diminution in Value?

The “diminution in value” claim is quite unique in that it accounts for a psychological trend among consumers that causes vehicles with an accident history — even if they are in absolutely perfect condition — to have a reduced resale value.  Thus, any fairly contemplated award of damages must account for the eventual, diminished value of the vehicle.

How is Diminished Value Calculated?

The diminished value of your vehicle will be determined on the basis of a variety of different factors, including, but not necessarily limited, to:

  • Age of the vehicle in question
  • Model of the vehicle
  • Brand
  • Mileage
  • Condition before and after the accident
  • Extent of damage vehicle suffered during accident
  • Quality of repairs
  • Objective value of vehicle before the accident
  • Difficulty of reselling activities after the accident
  • Presence of interested buyers

These factors are all dispositive, but you’ll have to introduce expert testimony that puts hard numerical estimates on the pre-accident and post-accident value of your vehicle.  Your attorney will have specific experts on-hand who can be trusted to provide an accurate evaluation.

Contact a Qualified Phoenix Accident Attorney for Guidance on Your Claims

In Arizona, and all other states, injured plaintiffs may assert damages for the economic losses they sustain to their vehicle.  These claims are not necessarily simple, however.  You’ll want to work with a qualified attorney who is intimately familiar with the process of securing damages for both economic and non-economic injuries.

Here at Hirsch & Lyon, our team of attorneys boast decades of experience providing skilled legal advocacy to injured plaintiffs in Arizona.  Unlike many other injury firms, we are focused on personal injury cases and as such, we are particularly well-suited to litigate these disputes to the fullest extent.  We also offer discounted contingency fees that ensure that our clients can keep more of what they receive in damages.

Interested in learning more?  Call 602-535-1900 or submit a case evaluation form today to schedule a free consultation with an experienced Phoenix accident attorney here at Hirsch & Lyon.  During the initial consultation, we will assess your claims and determine the best way to move forward to secure maximum compensation.

In the majority of motor vehicle accident lawsuits, injury victims initially focus their attention on obvious defendants — other negligent drivers who contributed to the accident, or perhaps the government agency that failed to maintain the roadway in a reasonably safe condition.  In reality, however, the vehicle manufacturer may be a potentially liable defendant worth bringing an action against, depending on the circumstances.

All product manufacturers — in Arizona and elsewhere — have a duty to ensure that their products are not defective and are reasonably safe for their foreseeable uses.  Failure to adhere to this duty could expose the manufacturer to significant liability.  This could prove especially useful in cases where the other defendants (i.e., the drivers) are uninsured or underinsured and therefore not equipped to cover your damages in full.

There are a number of different product liability claims — defective manufacture, defective design, failure to warn, and breach of warranty — but for now, let’s focus on defective design in the motor vehicle accident context.

Defective Design Liability

Arizona implements strict product liability, which is a boon for injured plaintiffs involved in litigation with a vehicle manufacturer.  Stated simply, the plaintiff need only prove that the vehicle is defective in some way, and that the defect substantially contributed to the injuries they suffered in the accident.  It is not necessary for the plaintiff to prove the manufacturer’s negligence.

Of course, this does not mean that litigation is easy.  Arguably, the implementation of strict liability simply puts the injury victims and manufacturers on a more equal footing, given the substantial advantages that manufacturers enjoy from a resources perspective.

In any case, if you’re looking to bring a claim against the vehicle manufacturer for defective design in Arizona, you’ll have to prove the following elements:

  1. Some element of the vehicle was defective; and
  2. The defective condition proximately caused you injuries.

Success will ultimately turn on your ability to prove that the product was actually defective in terms of its design.  This can be a significant challenge, particularly if the defendant is uncooperative or hostile and is willing to throw resources at the problem in an effort to bully you into submission.

Arizona courts will consider a product defective in terms of its design if the product poses an unreasonable danger to foreseeable users.  There are two tests for determining whether a product poses an “unreasonable” danger to its users: the risk-benefit test and the consumer expectation test.

Risk-Benefit Test

The risk-benefit test is fairly straightforward on the surface.  In Arizona, the courts will deem a product defective if the harmful consequences of its design outweigh the benefits of its design.  Courts will weigh a number of different factors, including the existence of a reasonable alternative design, the actual danger of the design, and many others.

Consumer Expectation Test

The consumer expectation test, by contrast, is about “foreseeability.”  If a product is not as safe to use in a foreseeable manner (i.e., driving a car on a highway) as the ordinary consumer would expect, then it will be deemed defective.

Product Misuse as a Defense

Manufacturers have a number of defenses they can assert to circumvent liability, including the product misuse defense.  Naturally, manufacturers are not absolute guarantors of safety for every conceivable use of their product — for example, a vacuum cleaner manufacturer cannot be held liable if a consumer attempts to use the vacuum to clean up toxic chemical waste and complains that it leaked out and caused them to suffer injuries.

Similarly, there are plenty of ways in which a driver may misuse a vehicle in a non-foreseeable manner.  For example, if you attach a pulley to your truck tires, and run the engine to turn the wheels and lift an object out of a pit, then the manufacturer cannot be held liable for injuries stemming from some product failure that subsequently occurs (i.e., the breaks fail and the truck collides with you and your friends).

Speak to an Experienced Phoenix Accident Attorney for Legal Assistance

Though product defect claims in Arizona are subject to strict liability principles, they are among the most difficult claims to “win,” as manufacturers have substantial resources, and tend to be somewhat aggressive in fighting lawsuits so as to discourage others from bringing similar lawsuits.

Here at Hirsch & Lyon, our attorneys are more than capable of taking on manufacturers and securing maximum compensation for our injured clients.  We have decades of experience representing the injured in a range of motor vehicle accident lawsuits, and as such, we understand the contours of product defect litigation and the strategies that manufacturers employ to avoid liability.

Unlike many other firms, we focus solely on personal injury cases.  This focus ensures that we are well-equipped to handle all the complex (and unexpected!) issues that arise in such litigation.  Our results speak volumes about our approach — we have secured over $100 million in damages (verdicts and settlements) on behalf of our injured clients.

Call 602-535-1900 to connect to an experienced Phoenix accident attorney today for a free and confidential consultation.

In Arizona, many employees are covered by workers’ compensation coverage that pays out for wage loss and medical expenses in the event that an employee suffers an injury in the workplace or while otherwise performing their duties.

Workers’ compensation is an exchange that is often sensible for both parties.  Employers agree to provide no-fault coverage, which gives employees the right to obtain workers’ compensation benefits even if there was no negligence or wrongful conduct involved, while employees agree to give up their right to sue the employer (and thereby obtain damages through standard litigation).

Many employees understand the basics of workers’ compensation, but aren’t quite sure what to make of “borderline” situations where they are also entitled to sue a third-party that is liable for their injuries.

Suppose, for example, that you are injured in a car accident while using the company vehicle to deliver products to a warehouse.  Though the accident was not the fault of your employer, you would be entitled to submit a claim for workers’ compensation to obtain benefits that account for your wage loss and medical expenses.

Now, even though you are not entitled to sue your employer, you might be entitled to sue a third-party — perhaps the negligent driver that collided with you — to secure a more extensive range of damages.

Oftentimes, injured employees are incentivized to bring an action against a liable third-party as workers’ compensation benefits can be quite limited — workers’ compensation benefits may only cover medical expenses and wage loss.  While significant, these may not be sufficient to account for all your damages.

By suing a third-party, you gain access to a much broader range of damages: pain and suffering, emotional distress, property loss, and more.

Application of the Collateral Source Rule

In Arizona, the collateral source rule ensures that you can not only secure workers’ compensation benefits, but also make a claim for wage loss and medical expenses (along with other damages) against the liable third-party.

What is the collateral source rule, exactly?

It’s actually quite simple.  Basically, the rule prevents the introduction of evidence relating to bills paid by a “collateral source,” such as workers’ compensation, or a health insurer.  For example, if you had all your medical expenses paid off by workers’ compensation insurance, you could still claim those medical expenses as damages in your lawsuit against the liable third-party defendant.  The defendant could not introduce evidence of your workers’ compensation benefits, and would therefore be required to pay your medical expenses (even though you already paid them off thanks to workers’ compensation).

Stated succinctly: the collateral source rule allows you, in certain limited circumstances, to obtain a financial windfall in the form of a “double recovery.”

Speak to an Experienced Phoenix Injury Lawyer for a Free and Confidential Consultation

The attorneys here at Hirsch & Lyon have over 65 years of combined experience representing the injured in a range of motor vehicle accident lawsuits (car, truck, motorcycle, and pedestrian disputes), including those that involve related workers’ compensation claims.

We are both client-oriented and results-focused.  Over the years, we have secured hundreds of millions of dollars on behalf of injured clients, working tirelessly to secure favorable verdicts and settlements.  We are thorough about preparing for the possibility of trial, and as such, we have a competitive advantage during negotiations.

Call 602-535-1900 today to get connected to an experienced Phoenix injury lawyer for a free consultation.

In Arizona (and throughout the country), even once you have secured a court judgment in your favor, the task is not yet complete — you must still collect the damages which you are owed by the defendant.  The type of case is irrelevant to collection.  Whether you were involved in a car accident lawsuit, or some other lawsuit, will have no effect on the procedure that you are required to follow.

Unfortunately, defendants can be challenging.  Though in most cases the defendant will honor their responsibilities and — having lost the case — will pay the damages that you (the plaintiff) are owed, in some cases, the defendant will maneuver around the judgment and create roadblocks to collection.

The defendant may ignore your request for damages, costs, and legal fees.  Alternatively, they may outright refuse to pay the judgment.  As a general rule, these are a clever application of stalling tactics.  If the defendant can stall for a long enough period of time, then they may be able to hide or otherwise relocate their assets so that you — as the judgment creditor — cannot seize them.

What can you do to ensure that you collect your damages in full, after a judgment has been entered in your favor?

Let’s take a look at some of your options.

What is a Court Judgment?

A court judgment is essentially a formal document that gives you, the successful plaintiff, the unrestricted right to seize the assets of the defendant in order to satisfy the damages owed to you.  In Arizona, court judgments last for a long period of time — five years, running from the date that the judgment was entered) — to account for the difficulty in seizing assets that the defendant may attempt to hide or relocate.  The judgment may also be renewed, if deemed necessary, by filing an affidavit of renewal with the court.

If the defendant makes collection difficult, and extends the collection process significantly, the judgment amount will accrue interest year-on-year.

There are many advantages to the judgment being made enforceable over a quite extended period, and two stand out as particularly useful for the typical plaintiff.  These advantages are as follows:

  • Assets may be seized when the defendant least expects it, years after they have “let their guard down,” so to speak, and
  • You can wait until the defendant obtains sufficient assets to pay off the judgment before collecting.

Suppose, for example, that you have been awarded $250,000 in damages in a motor vehicle accident lawsuit.  At the time of the lawsuit, however, the defendant has not been doing very well financially.  They are unemployed and have few savings.  They do not have sufficient assets to satisfy the judgment.  If you were to attempt to collect, you would only be able to collect $30,000.

Now, imagine that you wait four or five years, and the defendant has secured a high-paying job and has invested well over the years.  Their total assets are $300,000.  If you attempt to collect, you can fully satisfy the amount owed on your original judgment.  Even better: the defendant will owe you more due to the accrual of interest!

Seizing the Necessary Assets

When attempting to seize the assets of the defendant (in order to satisfy the judgment), perhaps the first issue you’ll run into is the defendant hiding or relocating their assets.  For example, a defendant may — after losing a case and having a judgment entered against them — move significant assets “offshore,” into foreign accounts.

As the winning plaintiff (and thus, the judgment creditor), you are legally entitled to collect, but you cannot do so if you don’t know where the assets are!  Third-party investigation may work, to an extent, but even better is filing for a Judgment Debtor’s Examination with the court.  The Judgment Debtor’s Examination will compel the defendant to appear in court and answer truthfully as to the location of their various assets.  The defendant will also be ordered not to relocate the assets further, and you will be granted a Writ of Execution by the court to seize said assets.

If the defendant has not attempted to hide or relocate assets, or if you know exactly where those assets are already, you may simply file a Writ of Execution (for personal property and other assets) or a Judgment Lien (for real estate property).  This gives the county Sheriff — where the assets are located — the go-ahead to seize the assets on your behalf.

Arizona Limitations on Seizure

It’s worth noting that you cannot seize all assets.  Some are “off limits,” so to speak.  If the defendant does not have significant assets, and all they have left is their sole personal residence, you may have difficulty seizing the residence (and forcing a sale) — this is known as the homestead exemption.  In fact, there are many other exceptional situations that may prevent you from collecting your rightful judgment.  For this reason, it’s critical that you work with an experienced attorney who has a track record of success in securing the defendant’s assets on behalf of clients.

Contact a Skilled Phoenix Injury Lawyer Today for Assistance With Your Claims

Here at Hirsch & Lyon, our attorneys not only have decades of experience representing injured plaintiffs in motor vehicle accident litigation, but also have extensive experience handling the collection of monetary judgments — we are therefore well-positioned to identify and secure assets necessary to fulfill the judgment.

Call 602-535-1900 today to schedule a free consultation with a skilled Phoenix injury lawyer here at Hirsch & Lyon.

Our Phoenix Accident Attorneys Explain the Duty to Mitigate

In Arizona, and throughout the country, injured plaintiffs are entitled to recover damages for damages they incur due to the negligent, reckless, or intentional acts of others — whether they are injured in a car accident or a slip-and-fall accident, or some other accident scenario.  This right to recovery is not absolute, however.  Injured plaintiffs must act in accordance with their various duties and responsibilities under the law, which includes the duty to mitigate their losses.

What is the Duty to Mitigate?

Defendants cannot be held liable for losses that they do not actually cause.  This “causation” requirement is fundamentally linked to the duty to mitigate.

How so?

The duty to mitigate requires that the injured plaintiff exert “reasonable efforts” to reduce their total losses — failure to do so will result in a proportional decrease in one’s recoverable damages.  Losses can be quite varied, and as such, mitigation must cover all the losses that the plaintiff intends to claim.  This can all be somewhat confusing to understand, so let’s use a quick example to clarify.

Suppose that you are injured in a motor vehicle accident by the defendant, who was excessively speeding at the time, thus causing the accident.  You sustained significant neck and back injuries during the accident, and as a result, you can no longer work.  Now, suppose that you seek adequate medical diagnostics and treatment as soon as possible.  Your doctor asks that you sign up for long-term physical therapy sessions in order to regain some of your pre-accident function.

If you fail to attend the physical therapy sessions, then the defendant may have an excellent argument for your “failure to mitigate.”  After all, they could argue that your injuries were worsened by your refusal to attend the physical therapy sessions, that the injuries would have mostly resolved had you attended the sessions, and that you could have returned to your job soon thereafter (or found alternative employment).  The defendant could thereby convince the court to reduce your damages, as they did not actually “contribute” to a significant portion of the damages sustained over time.

Importantly, the duty to mitigate is not exclusively linked to medical expenses and pain and suffering damages.  If you are injured in an accident, and afterwards, you don’t seek employment, then you cannot claim the same amount of “lost wages” (as you did not seek to mitigate those damages).

Reasonable Efforts are Required

The duty to mitigate is premised on “reasonable effort.”  As the plaintiff, you are not expected to make perfect decisions — just reasonable ones, given the circumstances.  What constitutes reasonable effort depends largely on the circumstances.

For example, if you fail to seek out basic medical services after an accident, then that will almost certainly constitute a failure to exert reasonable effort towards mitigating your damages.  On the other hand, the defendant cannot hold you to ridiculous standards.  If you do not seek out a niche medical expert located in a foreign country, that would likely not be considered a violation of your duty to mitigate (as it would demand more than “reasonable effort”)

Make an Appointment With an Experienced Phoenix Accident Lawyer Today

If you have been injured in an accident due to the negligence or wrongful conduct of another individual (or entity), then you may have the right to sue and recover damages for your various losses.  Still, despite the fact that you may be entitled to damages under Arizona law, it’s important to note that you have responsibilities as the injured plaintiff that — if you fail to uphold them — could undermine your claim.  Among these responsibilities is the duty to mitigate your damages.

Here at Hirsch & Lyon, our attorneys have more than 65 years of combined experience representing injured plaintiffs throughout the state of Arizona.  We specialize in motor vehicle accident litigation (car, truck, and motorcycle cases), and due to our commitment to these specialized practice areas, we are uniquely well-positioned to successfully litigate such claims on behalf of our clients.

We do not get paid until you obtain a settlement or verdict in your favor.  Our contingency fees are discounted, however, ensuring that even when you win your case, you get to keep more of what you’ve fought so hard to obtain.

Call 602-535-1900 or submit an online claim form to schedule a free consultation with an experienced Phoenix accident attorney here at Hirsch & Lyon.

Waivers of liability are quite common, particularly in the context of recreational activities — this ubiquity means that laypeople are generally familiar with the concept of a “liability waiver” and what it entails.  Simply put, a liability waiver shields the defendant from civil liability for serious injuries and damages that they cause due to their own negligence.

Still, few laypeople understand that liability waivers are not always applicable to a given situation, or that enforceability will depend on a number of different factors that could be evaluated in their favor.

Freedom to Contract

Arizona law recognizes the freedom to contract, but this freedom is not unlimited.  Though two or more parties are reasonably entitled to contract around their potential liabilities, the law will not necessarily accept all such agreements as enforceable.  In Arizona, for example, the state generally disfavors agreements (i.e., liability waivers) designed to release liability.  As such, any and all liability waivers are strictly construed against the defendant seeking to enforce the waiver.

Determining Whether the Liability Waiver is Enforceable

Enforceability of a liability waiver depends on the circumstances.  Courts will analyze the facts of the case (surrounding the liability waiver) and will consider those facts in the context of the following factors.

Ambiguity in the Waiver Agreement

Liability waivers must be sufficiently clear and unambiguous such that they function as a fully adequate notice of the inherent dangers associated with the covered activity.  The dangers must be reasonably communicated to the participants.  If there is ambiguity in the liability waiver language, then this will weigh against a finding of enforceability.

Specificity of the Release from Liability

In Arizona, it has been long-established by the courts that enforceable liability waivers must specify the particular risks and harms for which liability is being released.  Though it is not necessary for the defendant to specify every single potential risk or harm, the language of the agreement must make it clear to the participant what the scope of the liability shield actually entails.

Public Policy Considerations

In some cases, public policy will count against a finding of enforceability.  For example, a product manufacturer — say, a tire manufacturer — cannot avoid liability through a waiver agreement.  Product manufacturers are held strictly liable for damages caused by their defective products.  As such, it would be against public policy for them to be able to avoid the application of this strict liability framework.

The “Intentional Conduct” Exception

In Arizona, and elsewhere, liability waivers cannot be used to shield the defendant from liability for their intentional misconduct.  Waivers may only release the defendant from liability for their negligent conduct.

How does this work, exactly?

Suppose that you are injured in a go-karting accident.  You are vacationing with your family when you decide to compete in a go-kart race with a recreational company.  When you pay for the rental, you sign a waiver of liability that exculpates the defendant from liability for damages incurred (due to their fault).  Once you start go-karting around the track, however, the owner takes a second go-kart and slams it intentionally into yours, causing you to suffer serious injuries.

Despite the fact that you signed a liability waiver, an Arizona court is unlikely to enforce it, as it is not relevant to the case — the defendant’s conduct (intentional) is not covered by the waiver.

Schedule a Free Consultation With an Experienced Phoenix Injury Lawyer Today

Unfortunately, many prospective plaintiffs do not realize that they have a legitimate claim for damages (even if they have already signed a liability waiver).  If you have been injured in some activity where you were required to sign a liability waiver, then you’ll want to consult with a qualified attorney as soon as possible.  Your attorney will evaluate the facts of the case and will help you develop a strategy for convincing the court not to enforce the waiver.

Here at Hirsch & Lyon, our attorneys have several decades of experience serving injured plaintiffs throughout Arizona in a range of motor vehicle accident litigation.  Our services are designed to prioritize the needs of our clients — not only do we make ourselves available for questions 24/7, but we are willing to make hospital and home appointments (if need be) and provide discounted contingency fees.

Call 602-535-1900 to setup an appointment with an experienced Phoenix injury lawyer here at Hirsch & Lyon.  Initial consultation is free.  We look forward to helping you!

Whether you’ve been injured in a car accident in Phoenix, a slip-and-fall accident, or in any other scenario where the defendant’s negligent or wrongful acts have contributed to your injuries, plaintiffs are entitled to claim (as a separate element) damages for “loss of enjoyment of life” (LEL), otherwise known as “hedonic damages.”  These damages account for a unique set of losses arising from an injury — specifically, the plaintiff must assign a monetary value to their recreational activities, and thus calculate the losses due to the injuries at-issue.

LEL damages have not always been accepted, and in some jurisdictions, there remain questions as to their viability as a separate element of damages.  In fact, Arizona courts have only recently deemed LEL damages independent of pain and suffering damages.  This case law development has led to a spike in litigation involving significant LEL damage claims.

Confused by all this complicated legal terminology?  Let’s break down some of the basics and take a brief look at how LEL damages actually work, and how they might be applicable to your case.

Basics of LEL Damages

LEL damages (i.e., hedonic damages) are intended to compensate the injured plaintiff for various losses related to their recreational activities, social life, and relationships.  They are a form of non-economic damages, and as such, are inherently subjective, which is to say that they are based on your personal, emotionally-tinted experience of loss, as opposed to some objective indication of loss.

Suppose that you are severely injured in a car accident, which results in an extensive, full-body paralysis.  You have become quadriplegic as a consequence of the defendant’s negligent acts.  Under Arizona law, you would not only be entitled to damages for medical expenses, pain and suffering, wage loss, and loss of future earning capacity, but you would also be entitled to recover damages for the “lost enjoyment of life” that extends naturally from your paralyzing condition.

After becoming quadriplegic, for example, perhaps your once-happy marriage falters and it devolves enough that a divorce is necessary.  Further, you may have been an active, sporty person prior to the accident.  Your quadriplegia may prevent you from any serious physical recreation, such as sport.

The Difficulty of Calculating LEL Damages

In the LEL damages context, the claim itself is not necessarily at issue — it is the amount of claimed damages that are typically up for dispute.  Remember, LEL damages are inherently subjective.  Though expert testimony regarding the extent of your injuries (and whether you are capable of engaging in the recreational or social activities at-issue) is certainly valuable, it is up to your attorney to put forth a convincing argument for the claimed damages.

Despite the subjective nature of LEL damages, they must still be reasonably related to the losses.  For example, suppose that your injury renders you unable to play basketball.  If you played only occasionally, however, then the damages cannot be unreasonably high (i.e., $50,000+).  On the other hand, if you were a former collegiate basketball athlete and if you regularly exercised and socialized by playing basketball, perhaps on a weekly basis, then significant damages are justifiable.

LEL damages must also take into account various factors that include the length of the supposed loss (temporary or permanent), the age of the injured plaintiff, the importance of the activity to the plaintiff, and more.

Schedule a Free Consultation With an Experienced Phoenix Injury Lawyer for Further Guidance

If you’ve suffered injuries due to the negligence, recklessness, or intentional acts of another person or entity, then Arizona law may give you the right to sue and recover a range of damages, including those for “loss of enjoyment of life.”  As a general rule, LEL damages tend to be somewhat more difficult to prove, and defendants are very likely to dispute the amount of damages claimed.  You’ll therefore benefit greatly from working with a qualified attorney who has extensive experience handling personal injury litigation that involves claims for LEL damages.

Here at Hirsch & Lyon, our attorneys have served thousands of injured plaintiffs over the years, assisting them throughout the litigation process.  We believe that effective legal representation is personalized to the needs of each client — to that end, we keep our clients fully apprised of the developments in their case, and are committed to prioritizing their goals.  We are extremely confident in our ability to effectively represent the needs of our clients, and as such, we offer discounted contingency fees.

Call (602) 535-1900 to speak with an experienced Phoenix personal injury lawyer here at Hirsch & Lyon.  Your initial consultation is free, and all communication is confidential.  We look forward to advising you on how best to move forward with your injury claims.

In the state of Arizona, loss-of-life claims — more specifically, wrongful death claims and survival claims — are a category of injury claims brought either by the surviving family members, or by the estate of the deceased individual.  When a person is killed due to the negligent or otherwise wrongful acts of another, then Arizona law may entitle a qualified subset of survivors to pursue an action in litigation against the defendant and recover damages.

When most laypeople think of loss-of-life claims, they tend to think of “wrongful death.”  Survival actions are an important part of the legal landscape, however, and may lead to significant damage recovery.

So, what’s the difference?  Let’s take a look.

Survival Actions vs. Wrongful Death Actions

Survival actions are fundamentally different than wrongful death actions, though these differences are often misunderstood.

Stated simply, survival actions are brought against the defendant (who is responsible for causing the death at-issue) on behalf of the deceased individual.  In essence, a survival action gives the estate of the deceased an opportunity to recover damages for the wrongs committed against the deceased individual.  It arguably acts as a form of claim preservation — whatever claims the deceased would have had in the event they survived, are preserved and may be pursued by their estate.

Suppose, for example, that your loved one is killed in a motor vehicle accident by a distracted driver.  Their death was not immediate, however.  After a week of attempted treatment, your loved one finally succumbed to their injuries.  Their estate (managed by their personal representative) would thereafter be entitled to sue the defendant-driver and recover damages for the personal losses suffered by your loved one.

Wrongful death actions are also brought against the defendant (who is responsible for causing the death at-issue), but not on behalf of the deceased individual — instead, it is the surviving family members who bring a wrongful death action.  In essence, a wrongful death action gives those surviving family members a right to recover damages for the losses they suffered as a result of their loved one’s death.  Wrongful death claims have nothing to do with the particular losses suffered by the deceased.

Let’s return to the previous example.  Suppose that your loved one is killed in a motor vehicle accident by a distracted driver, but the death is immediate.  As one of the qualified surviving family members, you would be entitled to bring a wrongful death action against the defendant-driver to recover damages for “your” losses, which may include pain and suffering, emotional distress, medical expenses (paid out of your pocket), and more.

It’s worth noting that survival actions and wrongful death actions are not mutually exclusive.  It is entirely possible for the death of a loved one to give rise to both types of actions.

Filing a Claim

Survival actions must be brought by the estate of the deceased (which is likely administered by the personal representative of the deceased).  Though surviving family members are not necessarily entitled to bring the action — unless one of them is serving as the personal representative, of course — they are most likely the ones who will benefit from the eventual damage recovery.

For example, if the estate brings a survival action against a defendant and secures $100,000 in damages, then those funds will eventually be distributed to the beneficiaries of the estate.  If you and your sibling are the two sole (and equal) beneficiaries, then each of you will receive $50,000 more than originally anticipated.

Damages in a Survival Action

In Arizona survival actions, the law allows for the recovery of damages for lost wages, funeral expenses, burial expenses, and medical expenses (paid by the deceased).  Depending on the circumstances, punitive damages may also be available.

Unfortunately, however, there are strict limitations on “pain and suffering” recovery — section 14-3110 of the Arizona Revised Statutes specifically restrict recovery of pain and suffering damages in a survival action.

Schedule a Free Consultation With a Skilled Phoenix Wrongful Death Attorney

Loss-of-life claims can be particularly confusing for those who have little (or no) experience with injury lawsuits.  Depending on the type of action — wrongful death or survival — litigation will proceed quite differently.  Given the relative complexity of such litigation, it’s important that you get in touch with an experienced attorney who has a proven track record of success in handling wrongful death and survival actions.

Here at Hirsch & Lyon, we bring decades of combined experience in loss-of-life litigation to bear in representing those affected by the wrongful death at-issue.  We are committed to the provision of client-oriented legal advocacy.  Not only are we paid on contingency (e.g. we are only paid if you succeed in recovering damages), but we accept a reduced fee in comparison to competitor firms.  We also keep our clients “in the know” with regard to developments in the case, and work with them to ensure that our strategic goals are aligned.

Call (602) 535-1900 to schedule a free consultation with an experienced Phoenix wrongful death attorney here at Hirsch & Lyon.  We look forward to assisting you.

In Arizona, if you’ve been injured in an accident due to the fault of another person or entity, then you may have the right to recover a range of damages to cover your losses — generally speaking, this includes lost wages.

When bringing a lawsuit against the defendant, it’s important to remember that damages may vary substantially from plaintiff-to-plaintiff.  Every case is different.  In fact, it is a fundamental principle of law that the defendant be forced to “accept the victim” as “they found them.”  Stated another way, compensatory damages are not capped based on the type of accident that occurred.  If you have significant wage loss damages, you will not be prevented from recovering such damages simply because they seem excessive in comparison to the damages suffered by the average person.

Wage loss recovery is actually rather straightforward to understand.  Let’s explore the basics to get a clearer picture of how it works.

Wage Loss at a Glance

Wage loss damages account for actual losses suffered due to an inability to work (following an injury).  Wage loss damages are somewhat different from lost earning capacity.  For example, if your injury has not resulted in time off from work but has reduced the likelihood that you will be promoted in the future, then you’ll want to claim loss of future earning capacity damages — not wage loss damages.

Wage loss damages must generally be “certain” — they can be estimated, but there must be evidence that reasonably supports the numbers.  This is not typically an issue for past wage loss (where the injured plaintiff should have pay stubs and other evidence of the losses) but is more often an issue for future wage loss.

Damages for Past Wage Loss

Past wage loss refers to those damages directly suffered as a result of having to take time off of work.  For example, if you were forced to take two months off of work due to the injury inflicted by the defendant, then you could claim damages for the amount you were not paid during such time.

Defendants have a difficult time undermining past wage loss claims, but they may attempt to minimize their liabilities by arguing that you did not “have” to take so much time off of work, and that your failure to return to work sooner was unreasonable and constituted a failure to mitigate damages.

Damages for Future Wage Loss

Future wage loss refers to damages that you have not yet suffered at the time of litigation, and naturally involves a higher level of uncertainty.

Suppose that you are injured in a motor vehicle accident, and the injuries are so severe that you have been forced to take an indefinite leave of absence from work (until you fully recover).  If you bring a lawsuit against the defendant during this period of “unemployment,” then you will not only have past wage loss damages for the period of time after the accident and up to the litigation.  but you will also have a claim of future wage loss damages for the indefinite period of time after litigation.

Generally speaking, successful claims involving future wage loss damages must be supported by expert testimony, such as that of the treating medical professionals, and industry professionals in your field (who will discuss how your injuries necessarily prevent you from returning to work).

Contact an Experienced Phoenix Personal Injury Lawyer for Additional Guidance

If you have suffered an injury in an accident that was caused due to the negligent or wrongful acts of another, Arizona law may entitle you to recover significant damages as compensation for your losses.  Generally speaking, in cases involving severe injury — assuming that you were employed at the time of the accident — you will have wage loss damages to claim as well, due to having to take leave from work in order to physically and mentally recover from your various injuries.

Here at Hirsch & Lyon, our attorneys have more than 65 years of combined experience, and have represented thousands of clients in a range of injury disputes, helping them to recover the full amount of damages they are owed, which may include wage loss (among other damages).  We are committed to personalized advocacy and believe that our approach leads to significantly better results in litigation.  Clients can also take advantage of our discounted contingency fee — despite the fact that we only get paid if you succeed, our fee is lower than that of competitors.

Call (602) 535-1900 to schedule a free consultation with an experienced Phoenix personal injury lawyer today.

Motor vehicle accidents (like many other accident scenarios) are frequently decided on the basis of evidentiary issues.  The value of effectively navigating evidentiary conflicts cannot be understated — generally speaking, skilled litigators understand the value of favorably resolving evidentiary conflicts.  Doing so will almost certainly pay dividends further downstream in the litigation process.

Perhaps the most commonly encountered evidentiary issue is that of hearsay evidence admission.  In Arizona, the success of your motor vehicle accident and car accident claims can turn on the application of the hearsay evidence rule, so it’s worth considering the rule and its fundamental limitations.

Let’s take a look.

Arizona Law Prohibits the Admission of Hearsay Evidence

According to the Arizona Rules of Evidence section 801, hearsay evidence is defined as a statement that:

  1. the declarant makes outside of the current trial or hearing, and
  2. is offered into evidence to prove the truth of the matter asserted in the statement.

If the declarant testifies about a prior statement and is subject to cross-examination, or if a statement is offered into evidence against an opposing party, then — assuming that certain additional requirements are met (see section 801(d)(1) and (d)(2)), the statement will not be considered “hearsay” despite having been made out-of-court.

Sifting through this legalese can be rather difficult.  Simply put, a hearsay statement is any out-of-court statement that is being offered to prove the content of the statement itself.

For example, suppose that the defendant is attempting to minimize their liability by claiming that another defendant was involved and contributed to your injuries (but drove away).  They introduce the eyewitness, out-of-court testimony of a bystander, which includes a statement that they saw a third car driving away from the scene after the collision.

Now, given the nature of the testimony — it is an out-of-court statement, and is intended to prove the truth of its content, which is that a third car was involved in the accident but drove away — it would likely constitute a hearsay statement, and would not be allowed into evidence.

The hearsay evidence rule may seem confusing to the layperson, but there are good reasons as to why the rule exists in the first place.  Generally speaking, the hearsay rule is intended to prevent untrustworthy statements from being introduced into evidence.  Out-of-court statements have not been properly cross-examined, after all.  If every hearsay statement were allowed, then there would be far too many inconsistencies in the evidentiary record, and it would create stumbling blocks for the resolution of the case.

Exceptions to the Hearsay Rule

In Arizona, there are a number of exceptions to the hearsay rule.

Even if the statement is deemed hearsay, it may be introduced if it qualifies as: 1) an excited utterance made about an unexpected or otherwise startling event, such as a car accident; 2) an immediate impression of an event, after or while the declarant perceived it; 3) a public record; 4) a statement made for the purpose of a medical diagnosis or medical treatment; and more.

Hearsay exceptions are numerous, and in many cases — with skilled argumentation — they can be used to introduce otherwise prohibited evidence.

Consult With an Experienced Phoenix Injury Lawyer for Further Guidance

Whether the admission of hearsay evidence will have a positive effect on likelihood of success at trial depends on the particular circumstances of the case — there are no absolute answers.  If the hearsay evidence is favorable to your arguments, then your attorney will argue that certain exceptions apply.  If the hearsay evidence is unfavorable to your arguments, then your attorney will argue the opposite.

Litigators who understand how to maneuver around evidentiary issues — such as hearsay evidence admission — can have an enormous effect on the success of your injury lawsuit.  As such, it’s important that you select an attorney who has a track record of success in handling evidentiary conflicts.

Here at Hirsch & Lyon, our attorneys have decades of experience representing injured clients in motor vehicle accident disputes in Arizona.  We are committed to client-oriented legal representation, and prioritize the interests of our clients in a number of ways that give us a significant competitive advantage.

Call (602) 535-1900 to speak with an experienced Phoenix injury lawyer today.  Initial consultation is free and confidential.

Motor vehicle accidents — like many other accident scenarios — often involve multiple defendants.  Bringing an action against a single defendant is quite a bit different than suing multiple defendants, even if the case may seem uncomplicated upon first impression.

For example, if you have been injured in a motor vehicle accident where two speeding cars collided with yours (on the highway), then you would have to sue and recover from each defendant separately.  Defendants are well aware of the fact that this burden is placed on the injured plaintiff, and may attempt to minimize their liabilities by shifting the greater portion of the blame to the other defendants in the case.

Arizona Implements Several Liability, Not Joint Liability

In Arizona, historically, the state implemented “joint and several” liability.  Joint and several liability gave the injured plaintiff a great deal of power — the plaintiff could sue any one of the defendants who contributed to their injuries, and in turn, recover the full amount of their damages from that one defendant, even if the defendant was only minimally liable for the injuries at-issue.

For example, in a case with $1 million in damages, a defendant who was only 10 percent at-fault could be held liable for the entire $1 million!

Unfortunately, lawmakers came to believe that the system was unfair to defendants, and abolished “joint and several” liability, replacing it with a system of pure several liability.  If you are injured in an accident in Arizona, you will therefore be subject to the state’s implementation of several liability.

How does several liability work?

It’s quite simple, actually.  Several liability holds each defendant liable for damages that are proportional to their actual fault.  The courts enter separate judgment against each defendant for the amount owed.

For example, in a case with $1 million in damages, a defendant who was 10 percent at-fault could only be held liable for their proportional amount in damages: $100,000.

Several liability puts a much greater burden on the injured plaintiff, as they can no longer sue and recover their damages (in full) from a single defendant.  The plaintiff must identify all potentially liable defendants and file claims against them, accounting for their proportional contribution of fault.

Contact an Experienced Phoenix Injury Lawyer for a Free Consultation

If you have suffered injuries in a motor vehicle accident that was caused by the negligent or wrongful acts of another, then Arizona law may give you a right to recover damages as compensation.

Even if there is strong evidence pointing to the liability of the defendant, your lawsuit may be complicated by other issues, such as the existence of multiple fault-contributing defendants.  If multiple defendants are found to be at-fault for your injuries — which is often the case in motor vehicle accident scenarios — then you will have to properly evaluate their separate liabilities and doggedly pursue your individual claims against each defendant.

Here at Hirsch & Lyon, we understand that serious motor vehicle accidents (and the legal consequences) can be overwhelming to plaintiffs who are unfamiliar with the complexities of the litigation process.  As such, we strive to provide client-oriented legal representation — to that end, we consistently communicate case developments, make ourselves available 24/7 to answer any questions or concerns, and charge discounted fees so that our clients can keep more of what they recover.

Call (602) 535-1900 today to schedule a free and confidential consultation with an experienced Phoenix injury lawyer here at Hirsch & Lyon.  We look forward to assisting you.

If you’ve been injured due to another person’s negligent, reckless, or intentional actions — for example, in a car accident with a defendant-driver who was speeding and driving in a distracted manner at the time of the accident — then Arizona law may entitle you to sue and potentially recover damages as compensation.  Though lawsuits are an excellent way to ensure that defendants are held accountable for their damaging actions, there are many limitations that people are unaware of (chiefly, the issue of privacy).

Simply put, litigating a claim opens up the details to members of the public.  Upon first impression, this may not seem like a “big deal.”  After all, you might find it strange that someone in your community is scouring public databases for court records and will thereafter reveal your personal issues to the world at-large.  In reality, however, many disclosures in litigation are made known to the public through various media outlets.

For example, if you are suing a local transportation company for an accident that occurred on the highway, then the local news outlets may report on litigation as it proceeds.

Fortunately, there are ways to circumvent the privacy concerns associated with litigation, so if your privacy is particularly important to you, then you may still make an attempt to negotiate and resolve your dispute with the defendant without disclosing certain information to the public.

Trial Details Are Matters of Public Record

Again, it’s important to reiterate that the details of litigation are matters of public record.  For example, media persons are entitled to report on your trial as it unfolds.  They may write about how you reacted during litigation, and they may discuss certain embarrassing details that were presented during an evidentiary hearing.  Even your medical history and psychological history may be made public.

Depending on the circumstances, that litigation is a matter of public record can have far-reaching effects on one’s life.

Suppose that you have sued a defendant for injuries caused in a car accident.  Evidence relating to your psychiatric health and history is presented at trial, as it’s relevant to the case (you have made an argument for damages on the basis of emotional distress).

Now, imagine that media reports on the case, and that it is revealed to your employer that you have a history of psychological illness.  Your employer may begin to view you as a serious risk to his business, and may reduce your hours, fire you, pass you over for promotion, or otherwise interfere with your career.

How to Maintain Privacy While Resolving a Dispute

If you wish to maintain privacy, then you can do so by engaging in various forms of alternative dispute resolution.  Private, out-of-court dispute resolution does not qualify as a matter of public record.  Dispute resolution includes, but is not limited, to:

  • Mediation
  • Arbitration
  • Internal Administrative Processes

Not only is alternative dispute resolution typically faster, less costly, and more informal than traditional litigation, but it’s private — you won’t risk the details of the dispute being revealed to the public.

Alternative dispute resolution is an excellent tool, but in some cases, the defendant is hostile or is simply unwilling to negotiate a fair settlement.  Alternatively, you may receive a poor result in arbitration or pursuant to the administrative process.  At that point, it may be worth it to move forward with litigation and risk public disclosure of the details.

Contact an Experienced Phoenix Injury Lawyer Today

Here at Hirsch & Lyon, our attorneys have several decades of experience representing thousands of injured clients — particularly those in motor vehicle accidents — sue and obtain compensation for their injuries.

We are a truly client-oriented law firm, and this is expressed in a variety of ways.  We are available 24/7 to both prospective and existing clients, and we are willing to meet at any of our offices in the state, or at a location of your choosing.  Throughout the litigation process, we work closely with clients, evaluating their claims, advising them on next steps, and negotiating on their behalf.  At Hirsch & Lyon, we understand that litigation against a defendant can be challenging and emotionally exhausting.  We believe that you should keep more of what you win, because you deserve it.  We therefore charge a lower contingency fee than most other firms — 25%.

Interested in speaking with an experienced Phoenix injury lawyer here at Hirsch & Lyon?  Call (602) 535-1900 today to schedule a free consultation.

In the state of Arizona, as in other states, both plaintiffs and defendants may prevent certain evidence from being introduced into the lawsuit, to their benefit.  An effective evidentiary strategy is critical to success in a motor vehicle lawsuit, or in any other civil lawsuit — personal injury or otherwise.

Generally speaking, the defendant will attempt to introduce evidence that undermines your various claims.  For example, if you apologized to the defendant after the occurrence of a motor vehicle accident, the defendant may argue that this post-accident apology constituted an admission of fault, and that it is therefore relevant to the injury claims at-issue.  Alternatively, the defendant may attempt to introduce evidence of a statement made by a witness at the scene of the accident.  Depending on the circumstances, however, each of these statements may be suppressed (to your benefit).

Evidentiary Privileges

As the plaintiff in an Arizona motor vehicle accident lawsuit, you are likely to encounter a number of unexpected challenges in the evidentiary context.  Oftentimes, for example, the defendant will attempt to undermine your injury claims by asserting that they are “made up” or exaggerated in some way, perhaps by introducing evidence of your past psychiatric records with your therapist.  This is a broad overreach, however, unless you have made your mental health an issue in the lawsuit — the Arizona medical record privilege shields gives you the right to suppress the introduction of medical record evidence that is not relevant to the injury claims at-issue.

Other evidentiary privileges giving you the right to suppress evidence include, but are not necessarily limited, to the:

  • Attorney-Client privilege
  • Spousal privilege
  • Physician-patient privilege
  • Penitent privilege
  • And more

Application of the Hearsay Rule

The hearsay rule is almost universally applicable, in Arizona and elsewhere.  Put simply, the hearsay rule prevents certain statements that are made outside of the courtroom setting from being admitted into evidence for the purpose of proving that the content of the statement at-issue is true.  The intention of the hearsay rule is twofold: 1) to prevent the introduction of unreliable statements, and 2) to give litigating parties the opportunity to formally cross-examine the person who has made the statement at-issue.  If a court were to consistently allow the admission of hearsay statements, then the defendant could introduce statements that have no bearing in reality and that are not properly subject to scrutiny.

If you found that a bit confusing, there’s no need to worry!  Consider the following example for clarity.

Imagine that you are injured in a motor vehicle accident.  The defendant would like to introduce evidence of a statement made by your difficult neighbor.  At the time of the accident, your neighbor made a statement claiming that you are exaggerating your injuries.  Under Arizona law, however, you would likely be entitled to suppress the admission of such evidence pursuant to the hearsay rule.  The statement made by the neighbor cannot be introduced to “prove” that you are exaggerating your injuries.  Even if the defendant wished to introduce such evidence as proof of your reputation for exaggeration, it would likely be considered unfairly prejudicial to your case.

In Arizona, there are a number of hearsay exceptions to keep an eye out for, however.  The defendant may be allowed to introduce hearsay evidence if it constitutes a present sense impression, excited utterance, statement for medical diagnosis, recorded recollection, part of a public record, and more.

Balancing Evidentiary Factors

In Arizona, the Rules of Evidence (Rule 403, to be exact) gives a court power to exclude relevant evidence if — on the whole — its value to the case is outweighed by certain dangerous factors, such as the risk of unfair prejudice, issue confusion, misleading the jury, and undue delay, among other factors.  Your attorney will argue that damaging evidence (if it does not fall within an evidentiary privilege or within the hearsay umbrella) is either irrelevant, or that it is relevant but is outweighed by these factors.

Connect to a Skilled Phoenix Car Accident Lawyer Today

Have you been injured in a motor vehicle accident by another?  Arizona law may give you the opportunity to litigate your injury claims and recover damages as compensation.  Success in litigation requires that you overcome the various evidentiary roadblocks that the defendant is likely to challenge you with.

Hirsch & Lyon is a Phoenix-based law firm whose attorneys boast decades of combined experience representing clients in a range of personal injury litigation, including motor vehicle accident claims.  We are aggressive advocates for our clients, and provide discounted contingency fees, so our clients can keep more of their damages.

Call (602) 535-1900 to get in touch with an experienced Phoenix car accident lawyer here at Hirsch & Lyon.

Our Phoenix Accident Lawyers Will Fight for Maximum Damages in Your Aggressive Driving Accident 

In Arizona, and elsewhere, motor vehicle accidents typically occur due to the negligent or reckless conduct of a defendant.  Of course, there are many cases in which the defendant has intentionally caused injuries to the defendant — such conduct falls within the umbrella of intentional torts, and may expose the defendant to civil liability for damages you suffered as a result, as well as criminal liability.

Many injury plaintiffs are not familiar with the prospect of twin criminal and civil liability, and don’t quite realize how one affects the other.  Put simply, the fact that the defendant is currently engaged in — or will be engaged in — a criminal prosecution will have no bearing on your ability to recover damages in civil litigation.  Even if the defendant is found innocent in criminal litigation, it’s worth noting that criminal liability requires the satisfaction of a much stricter burden of proof (i.e., 99 percent certainty, as opposed to the 51 percent certainty required in civil litigation).

Road rage or other form of aggressive driving is an unfortunate reality.  In the spur of the moment, many drivers lose their senses and engage in behaviors that are designed to frustrate another driver who they perceive to be doing something wrong.  Such conduct is unarguably intentional, and can expose others to a significantly heightened risk of harm.

Intentional collisions give rise to unique considerations in the Arizona motor vehicle accident context, which an experienced Phoenix accident lawyer can use advantageously in litigation.  Consider the following.

Intentional Misconduct and the Sliding Scale of Liability

In a motor vehicle accident, the defendant-driver’s conduct falls on a sliding scale, with one side being negligence, and the other side being intentional misconduct.  In the middle lies reckless conduct (otherwise known as gross negligence).  Negligent actions are so careless that they violate the standard of reasonable care for a given situation.  Proving that the defendant engaged in negligence requires that the plaintiff establish the proper standard of care and demonstrate that the defendant violated that standard.  By contrast, proving that the defendant engaged in intentional misconduct requires that the plaintiff demonstrate that the defendant actually intended to cause them harm — the state of mind must be made clear.  It’s worth noting that the plaintiff can always plead negligence or recklessness in the alternative.

For example, suppose that you are injured in a motor vehicle accident where the defendant swerved into your lane and collided with your vehicle.  You assert that the defendant intentionally caused such harm due to “road rage.”  Your attorney will likely also plead that — in the alternative — the defendant engaged in negligent conduct that violated the standard of care in the circumstances (i.e., a reasonable person would have merged only after using their blinkers, and only if there was sufficient space to merge).  As such, you can still recover damages even if establishing the specific intent of the defendant proves too difficult.

Potential for Punitive Damages

In Arizona, punitive damages are sometimes awarded in personal injury lawsuits when the defendant has acted in such a way that their conduct was indicative of an “evil hand and an evil mind.”  An evil mind is demonstrated by evidence of the defendant’s intention to cause harm to the plaintiff, or when the defendant’s conduct was motivated by maliciousness or ill will.  If the defendant collides with you intentionally, for example, there is a strong likelihood that you will be awarded punitive damages in addition to compensatory damages.

Contact an Experienced Phoenix Motor Vehicle Accident Lawyer Today

If you have suffered injuries due to the intentional misconduct of a driver in Arizona, then you may be entitled to compensation for your losses.  Here at Hirsch & Lyon, our attorneys have decades of experience litigating a range of claims on behalf of injured clients, including those that involve a defendant’s intentional misconduct (such as a car accident caused by the defendant’s “road rage”).

We are committed to personalized representation.  Throughout the litigation process, we strive to keep our strategic objectives aligned with those of our clients.  We believe that transparency in the attorney-client relationship is critical to success in litigation.

Call (602) 535-1900 today to speak with an experienced Phoenix accident lawyer here at Hirsch & Lyon.  Your initial consultation is free, and thereafter, we work on contingency — you only pay if we obtain damages on your behalf, and thanks to our discounted contingency fee arrangements, you get to keep more for yourself!

As the injured plaintiff — in Arizona and elsewhere — you should take note of the statute of limitations for your various claims.  The statute of limitations is of prime importance in every litigation (both civil and criminal!).  Essentially, the statute of limitations acts as a deadline for your injury claims.

Do bear in mind that the statute of limitations deadline is a rather strict one.  If you do not file your claims before the deadline passes, then the claims will “expire” and you will no longer be entitled to sue and recover damages against the defendant on the basis of such claims.  As such, it’s absolutely vital that you connect with an attorney who will file your personal injury claims in a timely manner, and thereby avoid relinquishing your right to sue and recover damages in an Arizona court.

In the Arizona personal injury context, the statute of limitations deadline is two years from the date the cause of action accrues.  This is a somewhat short period of time for such overwhelming tasks — during such time, you’ll have to begin the process of physical and psychological rehabilitation, reintegrate yourself into your career and social life, and more, in addition to identifying relevant injury claims and filing them before the deadline passes.  A sense of immediacy is therefore critical to effective personal injury litigation.

When the Cause of Action Accrues

Normally, the cause of action “accrues” on the date of injury.  Like many other states throughout the country, however, Arizona implements the discovery rule, which can change when the cause of action actually accrues.

The discovery rule can give plaintiffs a bit more time when circumstances are such that — even with reasonable diligence — the plaintiff would not have discovered their injuries, or the fact that there was negligent, reckless, or intentional conduct that could make the defendant potentially liable, until some later date.

This rule can be quite confusing.  Let’s go through a brief example.

Imagine that you have been injured in a rear-end motor vehicle accident that occurred while you were stopped at a red light.  The defendant’s fault is immediately clear, but you don’t suffer any obvious injuries at the time of the accident, besides some slight soreness.  A quick doctor’s visit does not reveal any issues, either.  Two years later, you are in great pain and get thorough diagnostic scans done on your spine.  This reveals serious spinal degeneration that was set in motion by the rear-end incident two years prior.

In this scenario, if the cause of action accrued on the actual date of injury (i.e., the date of the accident), then you would no longer be entitled to sue and recover damages, as the deadline would have passed.  If the cause of action accrued later (i.e., the date of discovery), then you would still have two years to file your claims.  Whether the date of discovery is a legitimate one for counting the “accrual” depends on how reasonable it was to discover the injury at that later date.  If a reasonable person would have discovered it sooner, then the date of accrual will be sooner.

Contact an Experienced Phoenix Accident Lawyer Today

If you have been injured due to the actions of another person or entity, then you may be entitled to sue that defendant to obtain compensation for your various injuries, in accordance with Arizona law.  It’s important to note, however, that you do not have an unlimited amount of time to consider a lawsuit, so make sure to get in touch with an experienced Arizona injury attorney here at Hirsch & Lyon as soon as possible.

Hirsch & Lyon is a Phoenix-based law firm that has represented numerous clients in injury litigation through the years.  We provide unique, discounted contingency fee arrangements that ensure clients can keep more of their damages as compensation.

Call (602) 535-1900 today to connect to an experienced Phoenix accident lawyer at our firm.

Motor vehicle accidents are by their very nature difficult-to-predict.  In some cases, a sudden and unexpected emergency can influence the ability of the defendant to predict the consequences of their actions and avoid an accident.

For example, imagine a situation in which the defendant-driver is operating their vehicle on the highway and has a heart attack.  The driver — battling the sudden pain, spasms, and general loss of body control inflicted by the heart attack — swerves into your lane and collides with your vehicle, causing you to suffer significant injuries.

Can you recover damages?

There isn’t a simple yes-or-no answer that applies to all “sudden emergency” scenarios in the motor vehicle context, unfortunately.  Whether you can recover damages in a situation involving a sudden emergency is dependent largely on the circumstances at-issue — and more specifically, whether the driver acted with reasonable care given the emergency.

Have you been involved in an accident and suffered injuries as a result?  You may be able to sue the defendant and obtain compensation, pursuant to Arizona law.  In the personal injury context, the person responsible for your injuries can make use of a number of defenses to escape liability.  To ensure that your claims are effectively litigated, make sure to consult with an experienced Arizona motor vehicle accident lawyer so that your lawsuit can be properly evaluated and filed.

Arizona applies what is known as the “sudden emergency” doctrine to cases in which the defendant is rendered incapable of reacting in a safe and reasonable manner to the circumstances.  Generally speaking, Arizona does not treat the sudden emergency doctrine as its own separate doctrine, and instead applies its reasoning to the interdependent issues of standard of care and negligence that lie at the heart of a motor vehicle accident claim.

To put it in simpler terms: Arizona courts do not view the sudden emergency doctrine as a separate and independent rule.  The presence of a sudden emergency is simply a factor in the consideration of the total circumstances.

Standard of Care and the Sudden Emergency Doctrine

Defendant-drivers may be held liable for violating the standard of care.  The standard of care is a relative concept that changes dynamically based on the circumstances.  For example, the standard of care required of drivers in a school zone or in the parking lot of a hospital is likely to be higher than the standard of care required of drivers operating a vehicle on abandoned property.  There are a number of factors that influence the standard of care: the driver’s age, the condition of the roadway (i.e., visibility), the condition of the vehicle, the training and experience of the driver, and more.

How does the sudden emergency doctrine work, then?

Essentially, if the defendant finds themselves in a sudden emergency situation, then they may argue that the standard of care was lower — given the emergency circumstances — and that their actions therefore did not violate the standard of care.  Emergency circumstances are those that require “rapid action” and that do not allow the defendant to make a deliberate and well-considered decision.

If you are suing the defendant-driver, and they claim to have had a heart attack at the time of the accident, for example, then your attorney will likely investigate the nature of the heart attack and its severity.  If the heart attack was minor, and circumstances were such that the defendant could have safely moved their vehicle to the side and come to a stop, then it will have an effect on their liability.  Further, the presence of a sudden emergency will not shield the defendant from liability when they have negligently created a dangerous situation.  For example, if the defendant-driver had a heart attack, but was driving dangerously above the speed limit on a local road, then their inability to safely maneuver and avoid a collision during the sudden emergency may have been affected by their excessive speed.

As an injured plaintiff in a motor vehicle accident lawsuit, your claims may be countered by various defenses.  Depending on the circumstances, the defendant may argue that they are not liable for damages on the basis that there is no causal link between their conduct and the injuries at-issue, that you were also negligent, and that there are co-defendants who must share liability, among other arguments.

If you have been injured in a motor vehicle accident, you may be entitled to sue and recover damages as compensation for your injuries, pursuant to Arizona law.  Litigation is rarely straightforward, however, though it may appear to be upon first impression.  In many cases, circumstances will enable the defendant to put forth several strong defense arguments that could absolve them of liability, or — at the very least — minimize their potential liabilities.  As such, it’s important that you work with an experienced Arizona motor vehicle accident attorney who has a track record of success in handling claims where the defendant was well-positioned to counter the plaintiff’s assertions.

Certain defenses are commonly used by defendants in motor vehicle accident cases to minimize their liability.  An experienced injury attorney will almost certainly have encountered these defenses before, and are well-equipped to navigate the barriers they raise to the success of your claims.

Consider the following.

Plaintiff Was Comparatively Negligent

Arizona applies the doctrine of pure comparative negligence — or pure comparative fault.  What this essentially means is that the plaintiff may still recover damages even if they are significantly at-fault for their own injuries (up to 99 percent at-fault, in fact).  As such, though a negligent defendant cannot necessarily absolve themselves of liability by asserting that the plaintiff also contributed to the injuries, the defendant can minimize their potential damages.  For example, if the court finds that you are 50 percent liable for your injuries, then your damage award will be cut in half.

Plaintiff Had a Preexisting Injury or Condition

As a plaintiff, you must have suffered losses as the result of the defendant’s negligent, reckless, or intentional conduct in order to recover damages.  If you did not actually suffer new and distinct losses, then you are not entitled to recover damages.  It is therefore quite common for defendants to assert that the injured plaintiffs are not entitled to compensation on the basis that they suffered from preexisting injuries or a preexisting condition, and that the accident at-issue did not actually result in any new, distinct injuries.  If your symptoms are the same before and after the accident, the defendant may succeed in absolving themselves of liability on this basis.

It’s worth noting, however, that you may still recover damages for the same injury or condition that you suffered from prior to the accident, so long as you can show that the accident aggravated your preexisting injury or condition.  For example, if you had a preexisting back injury and the accident caused your pain symptoms to increase and limited your mobility to a greater degree, then you could recover damages for the losses related to such aggravation.

Defendant’s Negligence Did Not Cause Injuries

The mere fact that a defendant was involved in an accident with you — and that the defendant was operating their vehicle negligently at the time of the accident — is not necessarily proof that the defendant’s negligent actions caused your injuries.  If the defendant’s negligent actions did not actually cause your injuries, then you cannot hold them liable.

For example, imagine that the defendant was speeding at the time of the accident, when they made a legal lane change and collided with your vehicle.  Though the defendant was speeding at the time (and was therefore acting negligently), speeding may not have actually caused or even worsened the accident.

Other Liable Defendants

If there are other potentially liable defendants, the defendant may argue that they should be brought in for the purposes of litigation.  The defendant may reasonably argue that they should not be held liable in full for damages that others negligently contributed to.  Arizona holds defendants severally liable, not jointly liable — as such, a defendant may only be held liable for the proportion of their total fault contribution in the case at-issue.

Plaintiff Failed to Mitigate Damages

Plaintiffs must act reasonably following their injuries to mitigate their damages to the degree possible.  For example, suppose that you are making a wage loss claim as part of your overall damages in a motor vehicle accident lawsuit.  You did not work for a full two years after the accident.  The record shows that you were offered several jobs, however, and that you would have been in reasonably good health enough to work in those positions had you accepted the positions instead of remaining unemployed.  The defendant could argue that you failed to adequately mitigate your damages and that they cannot be held liable for losses that were within your control.

In Arizona, as in other states, evidence of your injuries — whether in a motor vehicle accident or some other accident — is critical to support your legal claims against the defendant(s).  Without sufficient evidence to support your claims, your claim will be dismissed and you will be left with no means for obtaining compensation.

Attorneys are valuable early-on, as they will guide your independent investigation of the facts of the case, and can connect you with experts who will not only assess the scene of the accident, but will also help assess the gathered evidence.

As a plaintiff, there are a number of ways in which you can help ensure that your case goes smoothly (from an evidence-gathering perspective).  Consider the following.

Obtain Contact Info of Important Parties

Once you’ve been involved in an accident, you’ll want to first identify any and all potential defendants (i.e., the defendant-driver in a motor vehicle accident scenario).  If you fail to identify the defendant and obtain their contact information, it can be rather challenging to litigate a claim against them, as the defendant may thereafter make attempts to evade litigation by maintaining their anonymity.  This happens quite often in the hit-and-run context, where negligent drivers get away before the injured victim (or anyone else) is capable of properly identifying them.

Identification information need not only be phone numbers, emails, and addresses.  It can be a description of the defendant, a photograph of the defendant, the license plate number of the defendant, a description of their property (i.e., color and model of their vehicle), and more.  Anything that can be used to identify the defendant will be useful in pursuing litigation, particularly if the defendant is “slippery” and evasive.

This is also true of witnesses at the scene.  Make sure to obtain their contact information so that you can request their presence later, once litigation has begun.  A legitimate eyewitness account can spell the difference between a winning case and a losing case.

Write Notes and Take Photographs of the Accident

Taking notes of the accident — from identifying information to an account of what actually happened (i.e., the sequence of events leading up to the accident) — is incredibly useful as a tool for more accurately remembering the accident and the circumstances surrounding it.

Photographs are perhaps even more useful, as photographic evidence of the scene of the accident may be introduced as evidence and can be used by accident experts to help reconstruct the sequence of events and demonstrate — objectively — how the defendant’s actions led to your injuries.  Don’t forget: photographs can be taken of your injuries to demonstrate what they looked like after the accident, and photographs can also be taken of property before the landowner makes safety modifications. 

Preserve Damaged Property and other Physical Evidence

Damaged property can be valuable evidence.  A damaged vehicle, for example, can be examined so that investigators can piece together the impact forces involved in a car accident and what angles these impacts occurred at.  Further, if you were injured as the result of a defect in your vehicle, then preserving the evidence (as opposed to junking the vehicle, selling it, or repairing it) may be critical for demonstrating the existence of the defect.

Secure Medical Records

Medical records include a range of evidence, such as diagnostic reports, inpatient/outpatient reports, surgical reports, medical billing records, and more.  Once you begin working with an attorney, he or she will begin gather all relevant medical record evidence for the purposes of litigation.  As a general rule, however, it’s worth requesting copies of all your medical records from beginning-to-end of treatment.  This makes it easier and faster to begin the process of litigation in earnest.

Obtain Evidence of Wage Loss

Wage loss (and loss of earning capacity) evidence includes payment records, work disciplinary records, and more.  Any written evidence of days that you were forced to take off due to your injury, or partial days, or of any negative work-related incident associated with the injury (i.e., perhaps you were passed over for a promotion as you were deemed physically incapable — due to the lack of energy following the accident — of performing the role).

Evidence gathering and preservation is critical to the success of an injury lawsuit.  Without adequate evidence to support your claims, they will not survive litigation.  As such, it’s critical that you work with an attorney early on — with the aid of an attorney, you will have the resources necessary to investigate and secure sufficient evidence so that your injury claims are well-supported.

If you have been injured due to another’s negligent, reckless, or intentional actions, call (602) 535-1900 today to connect to an experienced Phoenix injury lawyer here at Hirsch & Lyon.  Initial consultation is free.  Your attorney will work with you to assess your injury claims and help you navigate the challenging process of litigation.

In Arizona, as in other states, injured plaintiffs — whether in motor vehicle accidents, or any other tortious accident caused by the negligence, recklessness, or intentional conduct of a defendant — are entitled to recover damages that include both past and future medical expenses.

Let’s begin with a simple example.

Suppose that you are injured in a motor vehicle accident due to the negligent operation of a vehicle by another driver.  You suffer significant injuries to your back, neck, and limbs that require you to not only undergo diagnostic procedures and surgical treatment, but will also (for up to a year or more) require that you consistently attend rehabilitation sessions to get your strength back.  In addition to the various other losses that you may claim damages for (i.e., wage loss, pain and suffering, emotional distress, etc.), you may also claim damages for the medical expenses that you have already suffered, and for reasonably anticipated medical expenses in the future.

Medical expenses tend to be a substantial component (and in many cases, the largest component) of a plaintiff’s overall damage claim, as the cost of medical care includes a range of services, from diagnostics to treatment, and everything in-between.  As such, medical expenses are a frequent target of criticism in the litigation context.  Depending on the medical care that you have received, the defendant may assert that the medical care you have received (or that you will receive) is not reasonably necessary.

Past Medical Expenses

Past medical expenses are those costs associated with medical care (diagnostics, treatment, rehabilitative care, etc.) services that you have already been provided.  It’s important that you secure all your medical records — from inpatient reports to medical billing records — so that you can use such evidence to directly support your damages claim, without having to resort to assumption and guesswork.

Reasonable Charges

In some circumstances, particularly if you’ve received what the defendant believes to be “excessive” medical care, or perhaps “nontraditional” or “risky” medical care, the defendant will assert that they are not liable for the costs you incurred as a result of medical care that was not reasonable or necessary, given the circumstances.

For example, if you have suffered a minor leg injury, and in response, you go in for an experimental, risky surgery that is extremely costly (for no significant added benefit in comparison to traditional, cheaper surgeries), then the defendant will almost certainly argue that the costs were not reasonable.

Reasonability is an issue that depends on the circumstances.  Whereas a risky surgery may be unreasonable for a minor limb injury, it may be reasonable in circumstances where the plaintiff has suffered life-altering injuries and there are no other traditional, safer, and cheaper alternatives.

Future Medical Expenses

Future medical expenses are somewhat more difficult to prove than past medical expenses, as there are no medical records of the actual treatment (that has yet to be provided).  You will have to introduce expert medical testimony to establish that the future treatment is not only necessary given your injuries/condition, but also that the projected costs are reasonably accurate.

Given the inherently uncertain nature of future medical expenses, many defendants will challenge such claims.  As a plaintiff, you must therefore demonstrate that:

  1. There is a reasonable probability that the treatment will be necessary, and
  2. The projected cost of treatment (and related care) is a reasonable estimation of the value.

Demonstrating that a treatment is reasonably probable — and necessary — will depend on the circumstances.  If doctors have not yet decided whether to operate on you, for example, then you may not be entitled to claim damages for that future medical expense (unless it is reasonably probable that they will decide to operate on you).

Have you been injured in an accident due to another’s fault?  You may be entitled to compensation — which includes a damages award for medical expenses (past and future) — in accordance with Arizona law.  Your claims are subject to a statute of limitations deadline, however, so it’s important that you consult with a qualified Arizona attorney as soon as you can to ensure that your claims are litigated in a timely manner.

Call (602) 535-1900 today to speak with an experienced Phoenix injury lawyer here at Hirsch & Lyon.  Initial consultation is free.  Your attorney will assess your injury claims and help you navigate the process of litigation moving forward.

In a motor vehicle accident — or any other personal injury scenario, for that matter — it can be rather difficult for the injured victim to determine whether the defendant simply made an understandable mistake, or whether the defendant acted negligently, thus exposing them to potential damages liability.  In fact, this uncertainty often discourages injury victims from bringing a lawsuit against the defendant and thereby securing damages to compensate them for their various injuries.

If you have been injured due to the conduct of another person (or entity), and you believe that the defendant’s conduct violated the standard of care — given the circumstances — then you may be entitled to compensation for your injuries.  Injury claims often seem simple upon first impression.  In reality, however, your injury lawsuit can be complicated by a number of issues, such as the presence of multiple hostile defendants, evidentiary challenges, and more.  Make sure to consult with an experienced Arizona personal injury attorney for assistance.

If simple mistakes do not give rise to liability (except in product defect litigation, and other limited circumstances), and negligence does, wherein lies the difference between these two concepts?  At what point does a mistake “become” negligence and grant the injured party a right to sue and recover damages?

The answer to these difficult questions is embedded in the concept of “standard of care,” so let’s consider some of the fundamentals of the standard of care and how negligent conduct is borne from the violation of applicable standards.

Violation of the Standard of Care

In Arizona, as in other states, individuals and entities owe others a duty to exercise reasonable care given the circumstances.  This is a basic principle of tort law.  Failure to act in accordance with one’s duty of care will constitute a violation of the standard of care (applicable to the situation) and give rise to negligence liability.  To sum it up: a mistake gives rise to negligence when the mistake violates the standard of care.

As this legal terminology can be somewhat confusing, it’s best clarified with an example.

Imagine that you have been injured in a motor vehicle accident.  You were a pedestrian crossing the street at a legal, marked crosswalk, when the defendant collided with you, thus causing you to suffer significant injuries.  Now, suppose that the defendant-driver argues that they did not see you while rounding the curve that opened up into the crosswalk, as there were uncut plants that were obscuring their vision as they made the turn.  Given the circumstances, one could argue that the driver did not actually violate their standard of care (if they were otherwise driving in a safe manner).  On the other hand, you might be entitled to sue the property owner whose plants obscured the roadway.

The standard of care is fundamentally circumstantial.  In other words, it can change depending on the nature of the situation.  For example, the standard of care that applies to a professional truck driver who is driving for work-purposes may be higher than the standard of care that applies to a normal driver.

A number of different factors can influence the standard of care: the defendant’s age, experiences, training, and physical/mental capacity, the obviousness of the danger, the suddenness of the danger, the activity in which the defendant and plaintiff were involved, any regulations relating to the activity, and more.

In some cases, violation of a rule may give rise to “negligence per se.”  Essentially, the defendant’s violation of a rule may automatically give rise to an assumption of negligence.  As the plaintiff, you need only show that their negligence then caused your injuries.  For example, if the defendant-driver was violating some traffic rule when they collided with you, then you will not have to show that they were acting negligently, but only that their negligent act (i.e., violating the traffic rule) contributed to your injuries.

Personal Injury Damages Explained

In Arizona, and elsewhere in the United States, most cases never make it through to trial litigation.  Instead, a settlement is negotiated between the parties.  In fact, legal industry observers estimate that more than 95 percent of cases are resolved before trial litigation can begin.  For those unfamiliar with the process of litigating an injury claim, the fact that trial litigation is relatively uncommon (and seen as a “last resort” option) can come as something of a surprise.

Have you been injured in an accident that was caused by the negligent, reckless, or intentional conduct of another person?  Trial litigation may enable you to recover damages as compensation for your injuries, but it can be time consuming, expensive, and full of uncertainty.  Negotiating a settlement can save you a great deal of trouble in the long run, and secure you a favorable result — in some cases, a settlement can even ensure a level of amicability that might not otherwise be possible.  Get connected to an Arizona personal injury attorney who has extensive experience settling claims.

Many plaintiffs may be unaware of the value in negotiating a settlement.  Let’s take a quick peek at how settlements can work to your benefit, and then we’ll explore how a favorable settlement is negotiated.

Benefits of Settlement

Settlements are often said to be a win-win for both parties.  In our adversarial legal system, this can be a confounding result.  It’s actually quite simple to understand, however.  When the plaintiff and defendant negotiate a settlement, they are gaining a number of advantages (in comparison to traditional trial litigation).  Primarily, each party is able to exercise a level of control over the uncertainty that is inherent to litigation.

Uncertainty is fundamental to most litigation.  Even where the plaintiff is able to establish a level of certainty, there may be elements of uncertainty attached to litigation.  In situations where the defendant’s fault is undeniable, for example, there may still be substantial disagreement over the nature and extent of the plaintiff’s damages.

Negotiating a settlement empowers each side to take control and define the terms of litigation as they see it, instead of waiting for the court to determine who has won — and how much they have won.

For example, suppose that you are injured in a motor vehicle accident, and your damages tally up to about $500,000 in total.  That’s a significant damages amount, and the defendant is very likely to argue against it in some manner — perhaps by asserting that some of your damages are borne out of pre-existing injuries.  At trial, there is a chance that the court will find against you (leaving you with no recovery), or in the alternative, that the court will find in your favor, but will award you damages significantly below your expected total — say $200,000.  In either scenario, this uncertainty can damage your ability to recover adequate damages for your injuries.

Negotiating a settlement for $400,000 would therefore be a favorable result.  Though it is somewhat below your ideal recovery, it is higher than some of the possible scenarios should the court rule against you, or undervalue your claim.

There are a number of other advantages to settlement as well.  Trial litigation can be time-consuming, emotionally frustrating, exhausting, and expensive.  If your attorney is able to work with opposing counsel and help them understand your legitimate injury claims, you may be able to avoid trial litigation altogether and secure a favorable result through settlement.

Of course, though settlement is preferable in most cases, trial litigation may sometimes be necessary.  There are times when neither party can come to an agreement.  In rare cases, the defendant is simply hostile and uninterested in an amicable resolution.  As such, it’s important that your attorney be well-prepared for trial litigation, even if negotiating a settlement is your target.

In Arizona, if you have been injured in a car accident (or any other accident) due to the negligence of a defendant-driver who is an employee acting within the course and scope of their employment at the time of the accident, then you may be entitled to sue and recover damages from their employer.  This is known as the doctrine of vicarious liability.

What is Vicarious Liability?

Vicarious liability — also known as respondeat superior — is a doctrine implemented by the state of Arizona (and many other states) that holds employers liable for the negligence committed by their employees.  A claim brought against an employer pursuant to vicarious liability is not separate or distinct in any way from the claim that you would otherwise bring against the driver.  If you are bringing a claim against the employer for contributing to your injuries (i.e., asserting that the employer negligently hired or supervised the employee driver), then that will be separate and distinct from your vicarious liability claim.

This can all be rather complicated to understand, at first glance, so let’s go through a quick example for clarification.

Imagine that you suffer injuries in a car accident involving a pizza delivery driver.  The driver was operating their vehicle negligently at the time of the accident, and was on their way to delivering pizzas to customers.  You could ostensibly sue and recover damages from both the driver and their pizzeria employer.

In some cases, the employer may contribute to the accident by acting negligently themselves.  For example, if the pizzeria in the previous example was aware that the driver had a long history of reckless driving (i.e., license suspensions, drunk driving, numerous accidents, etc.), then you may be able to bring a separate claim against the pizzeria employer for negligent hiring/supervision.

Course and Scope of Employment

In order to successfully bring a claim pursuant to vicarious liability, you must show that the driver was acting within the course and scope of their employment.  In other words, you must show that the driver was either performing his or her regular job duties, or were otherwise furthering some legitimate business purpose at the time of the accident.  For example, if the driver left work and was driving to meet some friends for dinner, that would likely not count as acting “within the course and scope” of their employment.

When determining whether the driver’s actions are within the course and scope of their employment, the court will look the the extent to which the driver was subject to the control of their employer.  The greater amount of control over the driver’s behavior that the employer can exert, the more likely it is that a court will find that the driver was acting within the course and scope of their employment.

In a surprising number of car accident cases, the defendant-driver is in fact an employee (acting within the course and scope of their employment), thus making the lawsuit somewhat more complicated, and potentially, making it more likely that the plaintiff can receive full compensation for their injuries.  Critically, Arizona law entitles plaintiffs to sue and recover damages from the employer on the basis of vicarious liability, but it only applies in certain circumstances.

Connect with an experienced Phoenix car accident lawyer here at Hirsch & Lyon.  Call (602) 535-1900 today.  Initial consultation is free — our attorneys will assess your claims and help you navigate the litigation process.

We look forward to speaking with you.

If you have been injured in a motor vehicle accident due to the negligence of another person or entity, you may be entitled to recover damages as compensation for your injuries.  Proving that the defendant was acting negligently can be quite difficult, but in some cases, negligence may be proven if you can show that the defendant violated certain laws in causing the accident at-issue.

When a statutory violation leads to an automatic finding of negligence, that is known as “negligence per se.”  In the Arizona motor vehicle accident context, negligence per se is a legal doctrine that can significantly strengthen your case.

What is negligence per se?

Stated simply, negligence per se is automatic negligence.  In a standard negligence situation, you would have to establish a standard of care, and prove that the defendant failed to adhere to that standard of care.  With negligence per se, the defendant’s law-breaking behavior serves as automatic proof of negligence.

Arizona imposes a few requirements on plaintiffs attempting to prove negligence per se, however.  Violation of a law only serves as proof of negligence if:

  • The law must be enacted for the protection and safety of the public; and
  • The law expresses rules of conduct in specific and concrete terms.

In other words, the law must be related to public safety and must be explicit (and specific) about what behavior is prohibited.  Generally speaking, traffic violations tend to fall within the category of laws that qualify for a negligence per se finding.

For example, in the state of Arizona, pursuant to section 28-797 of the Arizona Revised Statutes, drivers may not travel at greater than fifteen miles per hour in a school zone while school is in session.  The law is enacted for the safety of the public, and is quite specific in its terms.  If a driver is traveling at greater than fifteen miles per hour and thereafter collides with and injures a student, the driver may be found negligent per se — and could be held liable.

Finding that the defendant has committed negligence — either standard negligence or negligence per se — does not mean that a lawsuit is won, however.  To succeed, you will have to show that the negligence committed by the defendant actually and proximately caused your injuries.  If the defendant violated some traffic law, but that violation did not actually result in the accident at-issue, then you cannot hold them liable (even if they were negligent).

Personal injury claims — including those where the defendant is likely to be found negligent per se — may seem straightforward at first glance, but can be complicated by a number of different factors.  Even where the defendant is found negligent, you will have to show that the defendant’s negligent acts caused your injuries, and further, you will have to successfully persuade the jury to accept your damages assertion as a reasonable estimation of your actual damages.  In the litigation context, there is a significant gulf between a “win” and a “huge success.”  As such, you’ll want to work with attorneys who have a long track record of success representing clients in injury litigation — and more specifically, in car, motorcycle, and truck accident litigation.

Call (602) 535-1900 today to speak with an experienced Phoenix injury lawyer here at Hirsch & Lyon.  During your initial free consultation, your attorney will assess your various claims and work with you to develop a plan of action for pursuing litigation.

In Arizona, as in other states, punitive damages are awarded only rarely in auto accident lawsuits, though when a punitive damages award is granted by the court, it tends to make a splash in the media.  Punitive damages are awarded on the basis of the compensatory damages in a given lawsuit.  If the compensatory damages amount is significant, the punitive damages award can push the total damages up to a degree that is shocking to some.  Many injury lawsuits that have entered pop-culture have done so on the basis of punitive damage awards that capture the imagination of observers.

For example, suppose that you are injured in a serious auto accident, and your total compensatory damages add up to $500,000.  If the court awards punitive damages in your case (say, three times the compensatory damages), then the total damages will be $2,000,000.  Oftentimes, “million dollar” injury lawsuits involve a punitive damages award.

Punitive damages are quite unlike other forms of damages, so it’s important to understand that a claim for punitive damages is not made on the same basis as a claim for lost wages, or medical expenses.

Punitive Damages Are Unique

Punitive damages function differently than compensatory damages.

A claim for compensatory damages (i.e., pain and suffering, past and future medical expenses, lost earnings, loss of earning capacity, loss of enjoyment of life, etc.) is put forth on the basis that you — the plaintiff — are entitled to financial compensation for your injuries.  Compensatory damages are an attempt to put you in a position that best approximates your pre-injury condition.

Punitive damages, on the other hand, are awarded as a means of punishing the defendant for their wrongdoing and deterring others from similar misconduct in the future.  Punitive damages are not meant to compensate the plaintiff for their injuries (though punitive damages are paid out to the plaintiff).

Qualifying for Punitive Damages

The Arizona Civil Jury Instructions clearly illustrate the requirements for asserting a claim for punitive damages.  Punitive damages may be available if you can show that:

  • The defendant intended to cause your injuries;
  • The defendant’s conduct was motivated by ill will; or
  • The defendant consciously disregarded the substantial risk of injury that his conduct might expose others to.

In the auto accident context, punitive damages may therefore be available in cases where:

  • The defendant was enraged and intentionally rammed your vehicle.
  • The defendant was intoxicated.
  • The defendant was racing on the highway and therefore consciously disregarding the risk of injury posed to the public.
  • And more.

Though punitive damages are rare, they may be awarded in cases where the defendant’s conduct is particularly egregious.

Punitive damages are — perhaps unsurprisingly — rare in the personal injury context, including auto accidents.  Unfortunately, many attorneys mistakenly pre-judge the situation and fail to assert a claim for punitive damages when there may actually be legitimate reasons justifying punitive damages.  When looking for an attorney to advocate on your behalf in an auto accident injury lawsuit, you not only want to find an attorney who has experience successfully litigating auto accidents, but you also want to find an attorney who is bold enough to pursue punitive damages when appropriate.

Hirsch & Lyon is an Arizona personal injury firm that has specialized in auto accident claims, and have secured punitive damage awards in the past.  If you have been injured in an auto accident, call (602) 535-1900 to setup a free consultation with a Phoenix injury lawyer here at Hirsch & Lyon.  Our attorneys will assess your claims and help you execute an effective strategy as you move forward with litigation.

In Arizona, those who suffer injuries due to the negligent acts of another are entitled to recover damages as compensation for their injuries, even when they have contributed in some way to their own injuries.  Unfortunately, many potential claimants in Arizona are not aware that they may recover in situations where they were negligent — an injury claimant might avoid consulting with an attorney despite having a legitimate claim for damages.  It’s important that accident victims in Arizona understand that their claims may be legitimate even if they were partially at-fault in the circumstances.

For example, if you were injured in a car accident, but you were also speeding at the time (and the speeding contributed to your injuries), you would not be barred from litigating your claims and obtaining compensation.

Arizona allocates fault to different parties in an injury lawsuit based on their proportional contribution of fault.  To better understand how this system works, let’s go through some of the basics of the comparative fault doctrine.

Comparative Fault Basics

Arizona implements the doctrine of pure comparative fault, also known as pure comparative negligence.  The pure comparative fault doctrine is particularly beneficial for personal injury claimants, such as those who have been injured in a car accident, truck accident, or motorcycle accident.

How does comparative fault work?

The principle of comparative fault is actually rather straightforward.  Essentially, in a comparative fault system such as the one that Arizona adheres to, each party involved in an accident is assigned a percentage of the total fault (i.e., plaintiff is deemed 20% at-fault, defendant #1 is deemed 40% at-fault, and defendant #2 is deemed 40% at-fault).  Comparative fault operates as a defense, but it is not an absolute defense that bars the plaintiff’s recovery.  Instead, comparative fault will reduce the plaintiff’s total damage recovery in proportion with their fault contribution.

This can be a bit confusing without adequate real-world context.  Consider the following example.

Suppose that you are injured in a car accident while making a left turn onto a local road.  You are a bit distracted, and are not paying full attention when you turn out into the road.  You do not realize that the defendant-driver is speeding towards your position.  As the defendant is driving at such an excessive speed, they cannot slow down and avoid you.  A collision occurs and you suffer serious injuries as a result.  The court finds that you are 40% at-fault, and the defendant is 60% at-fault.

Your total recoverable damages will be reduced accordingly.  As such, given the fault percentages, for a claim where you assert $200,000 damages in total, you would be entitled to recover just $120,000.  Though you are significantly at-fault for your injuries, you are not barred from recovery altogether.  In fact, you could be 99% at-fault and still recover damages in Arizona, thanks to the pure comparative fault doctrine.

Willful or Wanton Conduct

Arizona does not apply comparative fault in favor of any party in a situation where they have intentionally, wilfully, or wantonly caused or contributed to the injuries at-issue.  If you are injured in an accident that the defendant caused due to their road rage, for example, then they would likely not be allowed to raise the comparative fault defense and have their liability reduced (in proportion with the fault percentages).

Unlike other firms who have a range of disparate legal experiences, our attorneys are well-equipped to litigate motor vehicle accident claims and secure favorable results for our injured clients — whether through trial or settlement negotiation.

If you have been injured in a motor vehicle accident, Arizona law may entitle you to compensation, even if you contributed to your injuries through some negligence of your own.  To ensure that your claim is litigated effectively, call (602) 535-1900 today to schedule a free consultation with an experienced Phoenix accident lawyer here at Hirsch & Lyon.

We look forward to helping you.

In any personal injury claim or lawsuit, the plaintiff alleges that the defendant engaged in conduct or took actions (or failed to take actions) that caused injuries and other damages to the plaintiff. The defendant’s conduct is usually characterized in the litigation as negligent, careless, reckless or illegal.

The goal of the lawsuit is to obtain compensation for the plaintiff — a monetary award or settlement — so that she is “made whole” for those damages. The damages claimed in a lawsuit can be economic (for example, plaintiff was forced to incur medical expenses) and non-economic (plaintiff experienced pain and suffering).

The idea is that the damages should restore the plaintiff to her condition before the injuries took place — or at least appropriately compensate the plaintiff for the permanent changes to her life.

The exact mix of damages claimed in any lawsuit depends on the circumstances of the case, the types of injuries sustained and the relevant state law.

To ensure that you receive the most up-to-date information that is specific to your situation, we encourage you to contact a Phoenix personal injury lawyer at Hirsch & Lyon today. The following are the most common types of damages claimed in a personal injury case:

Medical Expenses

This form of damages compensates the plaintiff for the out-of-pocket doctor bills and other medical expenses (testing, treatment, therapy, hospital stays) that she has already incurred and those expenses the plaintiff will need to pay in the future because of the injuries.

If the plaintiff has been permanently impaired or disabled, the damages for future medical expenses can be significant.

Lost Wages/Income

Like medical expenses, damages for lost income are claimed for both past periods and the future. The plaintiff needs to be compensated for wages or income lost because she missed workdays due to the injuries and the medical treatments for those injuries. (If the plaintiff was required to use paid vacation or sick days because of the injuries, she deserves compensation for those too.)

If the plaintiff continues to be impaired or disabled because of the injuries, she is also entitled to damages for lost future earnings (the income she would have earned if the injuries hadn’t happened).

For example, if the plaintiff is completely unable to return to work or if her injuries forced her to take a lower salary job (or a less rigorous job or a part-time job) the plaintiff can seek compensation for the total lost income projected over her future working years.

Pain and Suffering/Emotional Distress

Damages for pain and suffering and those for emotional distress are examples of the non-economic damages typically demanded in a personal injury case. They are an effort to use money to compensate the plaintiff for non-monetary damages.

Pain and suffering damages are usually calculated in verdicts and settlements as some multiple of the economic damages. For example, if the damages for lost income and medical expenses total $200,000, the damages for pain and suffering might be pegged at 3 times the economic damages ($600,000).

Damages for emotional distress (sometimes called “mental anguish”) tend to be more variable in personal injury lawsuits and, unlike pain and suffering, are not assumed to exist in every injury case. To receive damages for emotional distress a plaintiff usually needs to present evidence of a psychiatric diagnosis like post-traumatic stress disorder.

Wrongful death

Damages for wrongful death are awarded to the family members of the injured victim if they file a claim following the victim’s death. In Arizona, wrongful death claims can be brought by the victim’s surviving spouse, children or parents, or by an executor or personal representative on behalf of the victim’s estate.

Wrongful death damages fall into 2 categories. The first compensates the victim’s estate for the damages the victim herself suffered, including:

  • Funeral/burial expenses;
  • Medical expenses;
  • Lost future income;
  • Repair/replacement costs for property damaged in the incident causing her death; and
  • Pain and suffering endured before death.

The second category compensates family members for the damages they suffer from the victim’s untimely death, including:

  • Lost value of household services the victim performed;
  • Loss of care, companionship, and guidance; and
  • Pain and suffering.

Loss of companionship/consortium

Loss of consortium damages compensate family members for the harm done to their day-to-day relationship with the victim because of the injuries sustained by the victim. Typically, a loss of consortium claim cannot be brought as an independent claim or lawsuit – a non-injured spouse, for example, joins the lawsuit brought by the injured spouse to seek such damages.

In some states, loss of consortium is specifically limited to damages claimed by a husband or wife for losing the ability to have an intimate physical relationship with the injured spouse. In Arizona, however, loss of consortium damages have been interpreted more broadly to include damages suffered by parents and children when the other is injured in an accident.

No limit on personal injury damages in Arizona

Although certain states have laws that place limits or caps on the damages a plaintiff can receive in a personal injury lawsuit, Article 2, Section 31 of the Arizona Constitution provides that no such law is permitted in Arizona.

If you or a family member has been injured in a car, truck or motorcycle accident, a Phoenix personal injury lawyer at Hirsch & Lyon can help you get the compensation you deserve. Call any of our offices to schedule a free consultation.

If you are the plaintiff in a personal injury case, you will eventually be asked to testify in a deposition taken by opposing counsel. Depositions are part of the discovery process that parties to a lawsuit conduct before trial to learn about the facts, legal theories and claims of the other parties.

A deposition typically takes place in a law firm conference room and consists of a witness (you) being asked questions under oath by opposing counsel (i.e. the lawyers for the parties you have sued).

Your lawyer will attend the deposition for the purpose of protecting you from unfair, misleading, unclear or irrelevant questions (your lawyer will object to those questions). Your lawyer will also ask you some questions to correct, expand upon or clarify the answers you’ve given to opposing counsel.

All of the questions and answers in a deposition are transcribed by a court reporter and the transcript becomes part of the discovery material produced by the parties before trial.

So, what do you need to know before testifying at a deposition?

Why are depositions taken?

  1. Depositions can be used to impeach your credibility at trial so it is important to relay the same facts and give the same answers that you intend to give at the trial in your case. If you change your story at trial, the inconsistencies with your pretrial deposition will be used against you.
  2. A deposition is not your opportunity to tell “your story.” You are there to answer the questions asked by opposing counsel and not to create your own narrative about the incident that caused your injuries. The deposition is opposing counsel’s show – not yours.
  3. Opposing counsel will have 3 goals in the deposition:
    • To find out what facts you know in connection with your legal claims (I.e. what you will say at trial).
    • To pin you down to a specific version of the facts so that you have less room to alter your story at trial.
    • To catch you in lies or inconsistencies in your version of the facts.

How can you be a good witness at your deposition?

  1. Tell the truth. You are under oath to tell the truth in a deposition just like you would be in court. It is crucial that your testimony be completely truthful. If you give inaccurate testimony – whether intentionally or not – you can hurt your case.
  2. Prepare for it. Review the documents in your case – your written discovery responses, your medical records and any other documents your lawyer asks to read. Think about what answers you will give to some of the likely questions and ask your lawyer to explain the legal claims in your case.
  3. Make a good impression. You want opposing counsel to conclude that you are a likeable, credible witness (and therefore dangerous for his client at trial). Be polite and cooperative and not angry, annoyed and argumentative.
  4. Listen Before Speaking. Listen carefully to opposing counsel’s entire question and understand it before you answer. Ask the lawyer to repeat or rephrase a question if you don’t understand it.
  5. Don’t volunteer information. Answer only the question that is asked by opposing counsel – don’t relay facts or other information that have not been requested.
  6. Keep the Transcript in Mind. The court reporter is trying to write everything down. Don’t talk over opposing counsel – wait until the whole question is asked before you answer. Answer all of the questions with words – don’t shake your head or nod and be sure to clearly say “Yes” or “No” (don’t mumble).
  7. Let Your Lawyer Speak. If your lawyer begins to speak, stop talking and let your lawyer resolve his comment or objection with opposing counsel before you continue.
  8. Don’t make up facts. You don’t need to have an answer to every question. If you don’t know or remember something, it is completely acceptable to say “I don’t know” or “I don’t remember.” Don’t guess or make up an answer.
  9. Read documents before testifying about them. If you are asked to answer questions about a document (a police report, medical records, tax return, etc.), read and understand it before you start answering questions about it.
  10. Correct or supplement your answers. If you realize you made in a mistake in answering a question or you need to add information to clarify an answer, tell your lawyer so that he can correct or supplement your testimony.

Depositions in a personal injury lawsuit can be complicated and tricky. If you’ve been injured in a vehicle accident, an experienced Phoenix personal injury attorney lawyer at Hirsch & Lyon can provide the representation you need for your claim. Call any of our offices to schedule a free consultation.

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