-Litigation

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.

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!

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, 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.