Thursday, July 21, 2011

Preserving Evidence In An Ohio Truck Accident--And The Most Important Thing To Do After An Accident

When it comes to semi or large truck accident cases, The Rolling Stones were wrong. Time is not on your side. As the clock ticks on your truck collision claim, here's what you need to know.

There is a little secret known to some (but not all) attorneys who routinely handle trucking accident cases in Ohio or any other state for that matter. This gem packs a powerful punch, and is an absolute must do for any attorney who represents truck crash victims. Properly done, it can set the table for cementing a solid liability case against a negligent truck driver and his or her employer. It can even be crucial in exposing a trucking company to a claim for punitive damages.

It is a "spoliation letter." A spoliation letter is a detailed letter sent to the proper entities that demands that a truckload (pardon the pun) of information and documents be immediately preserved and not "spoliated" (legalese for destroyed) in the event of possible future litigation against the trucking company.

Why is a spoliation letter so important? A thumbnail sketch of the anatomy of a trucking accident and lawsuit will shed some light. Reduced to its essence, any trucking accident involves a relationship between 3 crucial elements: the driver, the truck, and the trucking company.

There are a myriad of possibilities that cause a truck accident. Was it driver error? Was the truck overloaded or the cargo not properly secured? Was the driver fatigued or over his federally mandated hours of service driving requirements? Did improper maintenance contribute to the crash? Was the truck properly inspected at the necessary intervals? Or, did the driver have no business being behind the wheel due to a poor accident history or a shoddy background check?

Trucking companies are required to keep detailed records on all these issues as mandated by The Federal Motor Carrier Safety Administration (FMCSR) Regulations and, in Ohio, through the PUCO. But here's the rub: many of these records are subject to a retention period of as little as six months.

A thorough spoliation letter sent immediately after a trucking accident, which details a request for all these records, coupled a request to preserve them, is essential to avoid a lawsuit defense down the road of, "gee, we got rid of those records after _____ months in compliance with federal regulations."

Example: recently I represented a dock worker injured in a loading dock accident when the truck driver failed to set the brakes, and the truck drifted during loading. The driver had a standard "accident kit" (per his company's written policy) that included a disposable camera. A spoliation letter was immediately sent, which included a request that all accident photos be preserved. The trucking company denied liability, and a lawsuit was filed.

Sure enough, the trucking company denied that it had any photographs of the accident scene. One small problem: the driver was eventually located, and he claimed that not only did he take pictures, he turned them into the Safety Director (who denied all of this under oath).

Armed with this "photos--what photos?" defense, and our initial spoliation letter, we filed a motion to include a claim for punitive damages against the trucking company for "spoliation of evidence." There is ample law that allows a claim for punitive damages when a trucking company is on notice of possible litigation, and allegedly destroys or loses evidence. After the judge granted our motion, the case settled just before trial.

So here's the takeway: what's a surefire way for crucial evidence in your trucking accident injury case to be forever missing like the infamous Watergate tapes? Simply wait on insurance companies' promises to "treat you fairly" after an accident, eventually receive a crappy settlement offer, finally decide to call an attorney, and then let him or her tell you that crucial evidence is now missing due to a long lapse of time.

Tuesday, July 19, 2011

How Do You Select A Competent Ohio Malpractice Attorney?

Choice can be a good thing when it comes to hiring any professional. But when it comes to hiring an Ohio malpractice attorney, how do you sort through the seemingly endless maze of phone book and TV ads, and a dizzying array of Internet websites? Here are some tips that will hopefully make your choice easier.


I've never been a fan of circuses. Too many clowns for my liking--in fact, one clown is one too many in my opinion. And the food is downright awful. The standard fare cotton candy and circus peanuts not only lack any nutritional value, but give me a sugar buzz, splitting headache as well. In many ways, a circus is a good metaphor for the majority of websites designed to "help" you select a medical malpractice attorney.

For example, some websites are "generic" sites that do not identify a specific malpractice law firm or attorney. Many are nothing more than "clearinghouses" and are actually out of state firms that attempt to "sign you up," then refer you to an attorney in your local area. The catch? The "referring" firm takes a cut of the potential recovery in your case, and you have no choice over the local attorney whom you're referred to. If you like the idea of a roundabout, "forced marriage," feel free to go this route.

Yet other websites merely list firms in local areas who claim to provide legal services like "malpractice attorneys." Take, for example. If you click on "ohio" and "personal injury" and then hit the link for "Canton," you're given a listing of various firms from all over Northeast Ohio who claim to litigate Ohio malpractice claims. The problem? Many of these firms actually represent doctors and hospitals in defending malpractice claims! Obviously, if you're a malpractice victim looking for an attorney to represent you against a doctor or hospital, you have no way of identifying which of these firms represent malpractice victims or defend those claims--unless you visit countless firm websites and/or make numerous phone calls.


As you fine tooth comb numerous law firm websites, ask yourself this question: how many firms and attorneys devote countless website text and video talking about themselves? How do adjectives like "experienced, "tough," "committed," "aggressive" help you select a competent firm when most firms are touting these superlatives? If you think about it, have you ever viewed a law firm website that says: "We're not all that experienced, tough, compassionate, or competent but we would like to represent you?" The point is this: "bragging" websites are a lot like that circus cotton candy: airy, doesn't last long, and seriously lacks any real substance.

The same holds true for all those TV ads. Does this mean that these firms are not competent to handle your malpractice claim? Of course not. But it does mean that you have to dig deeper to cut through all the cookie cutter claims of "greatness" that exist on the airways or on the Net.

There is a better way to hack through this forest. The absolute best way to start any search for an attorney is to ask friends, neighbors, or those connected with the legal system, for a recommendation or two. Second, look for websites that actually give you useful information that may answer some questions you may have before you ever pick up the phone or send an e-mail inquiry. Third, an in person interview is a must. You should expect not to be "pressured' to sign anything during your initial interview. And be on the lookout for any attorney or firm that tells you that they "are the only one" that can adequately represent you. No lawyers should feel the need to blow out some other lawyer's candle in order to light their own.

So shop around. And make your choice carefully and methodically.

Friday, July 1, 2011

Reason No 72 For Ohio Drivers To Buy High Amounts Of Uninsured/Underinsured Motorists' Coverage

You may get creamed by a negligent Ohio driver with this language lurking in an auto policy:


How does this language find its way into an auto policy? Simple. Let's say a family has a family member with a horrible driving history. Typically, this involves a young driver who lives in the family household. He may have numerous speeding tickets, DUI's, and/or prior accidents. one of two things happens. The insurance company issuing the policy may conclude that the bad driver is too much of a liability risk, and demand that the driver is not covered under any policy issued to the household or the vehicles insured under the policy.

Secondly, the family itself might request that the family member be excluded because they don't want to pay the increase premiums for the driver, in order to obtain a cheaper insurance quote. Under either scenario, this exclusion will find its way into the policy. Translation? If this horrible driver creams you and puts you in the hospital, there's no coverage and no obligation for the insurance company to pay for your medical bills, lost wages, and injuries.

Ouch. In fact, double ouch. How do you avoid this mess? The only way you can protect yourself is to purchase ample amounts of "Uninsured/Underinsured Motorists' Coverage (known as "UM/UIM") FROM YOUR OWN INSURANCE COMPANY. If the bad driver is considered "uninsured" because of this exclusion, you can make a claim against your own insurance company for all of your losses. How much coverage should you carry? At least $500,000. The good news is that this coverage is CHEAP. I have had many clients bump their UM/UIM coverage from a standard (and insufficient) $100,000 to $500,000 for just over $100 per year!

We explain this in our FREE book: "Fully Exposed: How Auto Insurance Companies Are Stripping Your Auto Policy. You can order it by going to our website ( and clicking on the book.