Attorney Guide For Michigan Lawyers:
Pursuing Auto Accident Injury Claims In Michigan
The auto accident lawyers at Michigan Auto Law have developed this guide on pursuing auto accident injury claims for Michigan personal injury attorneys already familiar with handling automobile accident cases and for lawyers throughout Michigan who will occasionally handle a car accident injury case.
We have provided this information because all attorneys handling car accident injury cases in Michigan today must understand how the advent of computer settlement programs now being used by the auto insurance industry has changed the practice of personal injury law. Lawyers who settle auto accident cases for below-average dollar amounts or lawyers who negotiate inadequate settlements in auto accident cases on behalf of their clients now affect everyone, not just their own clients, with the advent of these new insurance settlement programs in Michigan.
Michigan Auto Law has provided this information for other personal injury lawyers so that lawyers pursuing auto accident injury claims can do a better job for their clients. We must remember that lawyers helping people remains the noblest aspect of our legal profession. We hope this guide will help lawyers throughout Michigan less familiar with handling car accident personal injury and wrongful death cases to do a better job, and to achieve more fair and just compensation for their clients. Ultimately, our hope is that Michigan lawyers doing a better job and reaching more just and fair settlements on behalf of their clients will help lawyers throughout Michigan pursuing auto accident injury cases to settle these cases for a more fair and just amount of compensation by raising the value of all of these cases with the insurance industry computer programs that presume to tell lawyers the value of a person’s losses.
Always remember the best way to increase the settlement value of an auto accident personal injury claim today is being recognized as a good lawyer. A lawyer’s reputation increases an insurance company’s exposure and is the easiest way to change the software’s value of an auto injury case. An experienced personal injury lawyer who has demonstrated his or her ability in trial can increase the value of an underlying car accident injury settlement as much as five-fold in Michigan. We all must continue to improve and to do the best job possible for those who depend upon us.
How should a personal injury lawyer begin an auto accident investigation in Michigan?
Lawyer investigation of a car accident case in Michigan begins with an analysis of liability and negligence (fault). Who caused the car accident? Is there any comparative negligence that could be attributed to your potential client? This is critical under Michigan law as, under MCL 500.3135 (2)(b) damages in a motor vehicle accident are assessed under a comparative fault doctrine, except that damages will not be assessed if an injured claimant is more than 50 percent at fault for causing the motor vehicle accident. Lawyers should note that this very harsh comparative fault standard will only apply to non-economic pain and suffering damages. It does not apply to economic loss from a car accident injury or wrongful death case.
A good first step for attorneys is to obtain the full police report including the UD-10. Too often, law firms will rely solely on the UD-10, only to be surprised by photographs or witness statements or police investigation which is contained in the full police report, but of which there may be no mention whatsoever in the UD-10 form. The UD-10 itself is not admissible in court. [2] However the UD-10 can and should be used throughout the case investigation including up through case evaluation to obtain the best results possible for your client.
Michigan lawyers reviewing an auto accident injury claim must spend the time making sure the police report was thorough and that police investigators took appropriate steps to preserve crucial evidence. Unless you are an experienced personal injury attorney, most lawyers cannot comprehend how many simple and important mistakes are made by the police in investigating auto accidents.
Critical but often ignored other potential personal injury causes of action in motor vehicle accident cases can involve:
investigation into the vehicle itself;
the tires;
failed parts;
the debris field involving car vehicle damage;
blood alcohol samples;
whether seatbelts were or were not being used;
and a host of other issues that can affect liability against both the negligent tortfeasor who caused the car accident but also against other potential defendants as well.
Frequently, if there is catastrophic serious personal injury or death, the insurance policy limit of the primary negligent tortfeasor will not be sufficient to compensate for all the losses your client suffered, and serious inquiry should be made about other defendants and types of cases, such as product liability, vehicle defect, or defective road design.
Hiring Experts
Lawyers will have to rely upon expert testimony in most auto accident injury cases in Michigan to develop a prima facie cause of action and establish the proofs necessary to survive a defense motion for summary disposition.
Experts commonly encountered in automobile accident litigation throughout Michigan include:
The Plaintiff Lawyers Medical Treating Doctors:
The plaintiff must rely upon treating physicians to establish medical injury and causation.
The Defendant’s Lawyer’s Experts:
Defendants generally seek "independent medical examinations." Whether truly independent experts or not, these various medical practitioners to perform one time examinations and then write reports or testify in a personal injury lawsuit. They are used by defense lawyers to refute and rebut the plaintiff's treating physicians and medical injuries.
Toxicologist
A toxicologist may assist in cases where drug or alcohol use are alleged and may be contributing factors to an auto accident.
The Meteorologist
The meteorologist can be used to establish what the weather was like and to support or rebut claims about what role weather may have played in causing the motor vehicle accident. It is important to remember that the weather by itself can only rarely be found to be an excuse for causing a motor vehicle accident as drivers are charged with using ordinary care when driving in the weather conditions that confront them.
Accident Reconstructionist
This is an expert who may be able to take evidence from an accident scene and form a hypothesis as to how the accident occurred. This includes estimating the speed of motor vehicles involved, and forming a theory as to causation.
The Engineer
Whether civil or traffic or biomechanical, engineers can examine the construction, condition, placement and working order of the various motor vehicles and roadway in which an accident occurs. Biomechanical engineers study the laws of physics when focusing on human tolerances that may or may not produce injury. A biomechanical engineer examines the relationship between vehicle dynamics, occupant kinematics, injury causation, and the forces involved in a collision. A personal injury lawyer considering hiring a biomechanical engineer in an auto accident case should be warned that there are now dozens of cases that have come down across the United States barring defense lawyers from using bio-mechanical engineers to testify as to what the forces involved in a car accident collision would have been and whether or not consistent with causing injury to the plaintiff.
The Economist
An economist can assist a personal injury attorney with preparing and assessing future lost earnings over the first three years of no-fault lost wages, or if the injured person is a high wage earner, the difference over and above the statutory maximum that the injured person received from his no-fault insurance company. The economist will consider such factors as a person’s age, life expectancy, the expected duration of work loss, and more complicated factors like the time value of money, projection of future interest rates and inflation, and other factors.
Vocational Rehabilitation Expert
Depending upon the nature and extent of a disability, a vocational rehabilitation expert can assist a lawyer with determining the proper courses of treatment, whether and to what extent accommodation can be made in the workplace for an injured person and alternative paths to retraining an individual to re-enter the work force.
Other Experts
Remember that experts can play multiple roles, not just to testify. Experts can assist you the attorney in investigation of the case, providing testimony at deposition, case evaluation, educating attorneys and testing various alternatives to potential legal recovery.
An expert is a person with special knowledge, skill, experience, training and/or education. It goes beyond the experience of ordinary members of the public. There can be dozens or even hundreds more experts that can be used in car accident cases in Michigan, ranging from human factors to lighting experts to metallurgy. The attorney should always keep an open mind in working with and in letting himself or herself be helped by experts who may have special knowledge to allow the attorney to develop the best possible automobile accident case.
The Scene of a Motor Vehicle Accident
It is always helpful for a personal injury lawyer helping someone involved in a serious car accident injury case to go out and see the scene of the collision. If possible, the lawyer should photograph the scene shortly after they are retained and before any changes are made. This can be helpful in preserving photographs to be used later or to be used when pursuing potential causes of action against other possible defendants in a serious injury or death automobile accident case. If the collision occurs on a State of Michigan highway, it is always helpful to contact the State and obtain the State's mapping program of the area involved.
Witnesses
It is always helpful for any Michigan personal injury attorney to try talking to witnesses before memory fades. In a serious car accident case this can become challenging as there is often a race to attempt to contact and talk to witnesses. Representatives from an insurance company, investigators and lawyers for potential defendants will often want to talk to these people as well. Lawyers and investigators from many of the larger trucking companies, for example, now receive special training in contacting witnesses and in ways to minimize potentially damaging witness testimony and have teams available around the clock on call. An injury victim lawyer’s goal should always be to obtain statements or recordings of helpful testimony in the event the person later is not able to be found or changes his story as to how the accident happened. Remember, however, if you do not want your adversary to see a statement, it should not be preserved. The current law in Michigan does suggest that these statements would have to be turned over to your adversary and may not be protected by the work-product privilege. Lynd v Charter Twp. of Chocolay, 153 Mich App 188 (1986), and Peters v Gaggos , 72 Mich App 128 (1976).
Explanations and Excuses
Michigan lawyers handling automobile accident cases should be prepared for some very creative and unusual explanations from defendants as to how these motor vehicle accidents occur. Sadly, far too many people believe that if they come up with an excuse, or blame the person who they hurt in the car accident, that it will be better for them. Rarely is this the case.
The common excuse of people who cause accidents involves the "sudden emergency" doctrine. In essence, the doctrine of sudden emergency says that when a defendant is confronted with such a "sudden emergency" the is "unusual or unsuspected" and the situation is not of his or her own making, and that the defendant is using ordinary care and yet is not able to avoid the car accident collision that he sees and comprehends unfolding before him, then his negligence can be excused. The defendant must show that the sudden emergency was in view for a short length of time and the peril was totally unexpected. The sudden emergency defense must be raised by a defense lawyer as an affirmative defense to give notice before trial to the other side. This doctrine has been raised by both honest and less than honest defendants involving everything from oil slicks to sudden blinding sun to sudden winter storm warnings, brake failure, child dart out, stalled cars, avoiding a prior accident, and deer.
The plaintiff attorney handling automobile accident cases must focus on whether this sudden emergency was truly "not of his own making." Most defenses involving the sudden emergency doctrine can then be defeated by showing that the defendant did not use ordinary care in the moments that lead up to the defendant being confronted by a sudden emergency
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