patrick mcgroder, iv on criminal acts and personal injury lawOur Legal Beagle Podcast recently featured a conversation with Patrick McGroder, IV, a personal injury attorney with Beus Gilbert PLLC, regarding criminal acts and personal injury law.

McGroder has a wealth of knowledge about the interplay between personal injury law and criminal law. Early in his law career, for approximately four years, he worked for the Maricopa County Public Defender’s Office, representing clients in more than 350 felony matters. While in law school, he spent two years prosecuting felony cases at the Maricopa County Attorney’s Office.

In this interview, McGroder and Negretti & Associates Principal Jonathan Negretti explore how personal injury attorneys can work with criminal defense attorneys to achieve compensation for clients. McGroder also discusses the role of insurance in relation to victim compensation. Further, he offers his perspective on restitution.

Jonathan Negretti: Imagine that you get hit by someone who is cited for a DUI. Let’s just start with that premise. What do people need to know?

Patrick McGroder: It’s really important to get involved early with a criminal defense attorney. Criminal defendants have a wealth of information that personal injury attorneys can use in securing some sort of compensation for their clients.

The elephant in the room in every single personal injury case is whether there is insurance. We deal with cases where we walk into a hospital room with individuals who have suffered catastrophic injuries and there’s no insurance.

For example, with a DUI, a few quick issues come to mind. Where was this individual drinking? Where was this person before the incident? This can raise certain issues regarding dram-shop cases. No one knows best than this criminal defendant.

To take your example to a new level, imagine that the individual that gets hit and is killed — whether it’s a vehicular manslaughter case, where this particular defendant is now facing prison time. Here in Arizona, about maybe about 10 years ago, the state enacted the Victim’s of Bill of Rights, which gives certain rights to victims here in Arizona. That being said, a victim in this case has a right to be heard. Has a right to present. Has a right to go to all the court proceedings and then has a right to be heard regarding recommendation for prison sentence.

Manslaughter here in Arizona carries a term of 7 to 21 years. When the prosecutor reaches out to the victim, wanting a recommendation on sentencing, victim input is essential. What we do — and what I think everyone should do — is get involved with the criminal defense attorney. Pick up the phone and say, “I have an angry victim here who wants justice. If your client is willing to do the right thing, and help secure some sort of insurance compensation for our client, then maybe we can do something about victim’s recommendation.”

Not every case is a case where you can get involved. Some victims want blood. Some victims want the death penalty or want a client to go away forever. But I have found that, by picking up the phone and reaching out to criminal defense attorneys, these particular defendants have a wealth of information.

Negretti: Do you take your client’s temperature first before you reach out to the criminal defense attorney?

McGroder: You have to. It’s all about managing expectations, in any case — whether it’s criminal, whether it’s a family law case, whether it’s a personal injury case. You’ve got to be pretty up-front with your clients early. Set expectations. Don’t over promise. It’s a very delicate process, and you have to tread very lightly. Victims and victims’ families are very angry, and they want justice.

What does justice mean, though? To certain families, it means the defendant goes away forever. Other families may be establishing a college fund for a grandson, or the child of a parent who was killed as a result of someone’s negligence. Justice has a lot of different meanings.

Negretti: Do you find that defense attorneys are receptive to these phone calls?

McGroder: They should be. The experienced ones should be. A newer attorney, like myself, back at the public defender’s office, should have an open mind. If they don’t have an open mind, then you can be straightforward with them. Say, “Listen here. My victim is willing to at least potentially hear you out in what you have. Here’s how you can help. We need the receipt from the bar. We need your client’s credit card statements. We need your client’s insurance policy. What does the homeowners policy look like?”

Homeowners insurance is a really interesting segment of our law. The common misconception is that homeowners protects you from a storm, or if your house gets run into, or has some sort of damage. Yet, homeowners insurance also protects individuals for individual liability, for committing negligent acts.

For example, if you and I are wrestling, and I throw you down the stairs and you break your neck, then there might be a situation where my negligence caused your your injuries. My homeowners policy may, um, cover your injuries.

Obviously, the other elephant in the room is intentional acts. Almost every homeowners policy has an intentional acts exclusion. A lot of attorneys will pass on cases that have criminal elements. My thinking — my words of wisdom — is to take a second look at these cases. Try to get involved when the criminal defendant pleads to something other than an intentional act.

In an aggravated assault case, you may write in a factual basis what happened in the case at the time of plea agreement, where it says someone recklessly discharged the firearm, instead of intentionally. This way, when it comes to presenting the argument to the adjuster, you’re asking the adjuster to look at this as a negligence-based act. Look at this plea agreement. That can just help you with moving forward against what will inevitably be the insurance company. It helps you by getting involved early.

A lot of criminal cases have a shorter life span than civil cases. Here in Arizona, the Regional Court Center is a turn-and-burn type of program, where they get a complaint filed from the county attorneys, you get court within the month. You could potentially resolve that case in two months. So, it’s important that once your client steps in the door, and there’s an underlying criminal case, to check the Maricopa criminal dockets. See if there have been charges filed. See if the defense has retained an attorney. Reach out to them immediately.

Negretti: We talked a little bit earlier about victim’s rights. Talk to me about your opinion or your thoughts in restitution.

McGroder: Restitution is tough. It’s all about collectability. Let’s say that you have an individual who has significant insurance and you’re able to recover. You can’t double dip. So, when requesting restitution, it has to be something that the judge will approve in the criminal context — things that you haven’t been able to recover, such as additional property damage, that you didn’t get from the settlement. Whether or not there wasn’t enough insurance to cover lost wages, sometimes you can make that request.

I have a case right now where, an individual was struck by someone who was uninsured — no license, it wasn’t his car, and had zero insurance. My client’s million-dollar bills are just sitting there. We’re not going to try to get an order for this guy to pay a million dollars, because everyone knows we’re not recover from them. The catch is, it’s a vehicular crime with a felony attached to it. This individual gets placed on probation. There’s a specific court that handles probation for offenders who have high restitution. The court can supervise and make sure that the individual who caused the crash, that resulted in the client’s injuries, pays up. Some of the motivating factors are potentially extending probation — potentially incarceration, if there’s a willful nonpayment. But I’ve seen courts that come down on these criminal defendants and make sure that victims are compensated.

Negretti: I have one more question, about exclusions in policies. You talked about exclusions, or intentional acts, in homeowners policies. Can you talk just a second about exclusions for punitive damages in automobile polices? How do you deal when the insurance company is saying, “We don’t have to pay for punitive damages. We don’t care if our guy was drunk.”

McGroder: We haven’t come across that too much. But you know, when sending a demand out to an insurance company, we make sure to include a highlighted section about the gross punitive type negligence, in terms of what a jury will perceive this at trial and what would anger a jury. That this guy was a .3, and had prior DUI’s. We make sure to put it all in there and say, “This is your insured. You’re opening yourself up here, by putting this guy back on the street and insuring him.”

medical malpractice lawyer john agerIn a recent episode of our Legal Beagle Podcast, Jonathan Negretti, principal of Negretti & Associates, had the honor of interviewing medical malpractice lawyer John Ager. We — and many others in the legal profession — consider Ager to be one of the best medical malpractice attorneys in the state of Arizona.

Ager is a principal of Phoenix-based law firm Sandweg and Ager, which offers more than 70 years of combined experience litigating medical malpractice, personal injury, and wrongful death cases.

In the following conversation, Ager defines medical malpractice, explores the elements that make a good medical malpractice case, and offers ideas on how to find a medical malpractice lawyer.

Jonathan Negretti: How would you define medical malpractice?

John Ager: Medical malpractice, in short, is where a health care provider does something wrong. There are standards that apply to all kinds of different health care professionals — surgeons, nurses, anesthesiologists, and obstetricians. They all have to obey the rules that apply to their treatment of patients. Medical malpractice is simply when they fail to do that.

Negretti: If someone thinks that they had something go wrong in surgery or in some sort of procedure, what do you look for as an attorney, who represents people in medical malpractice claims? What sorts of things do they need to have for you to say this is a case that we can take forward?

Ager: Just because somebody has a bad outcome after a visit with a health care provider — whether it’s a visit to a pediatrician or brain surgery — it doesn’t necessarily mean that there has been medical negligence. Bad outcomes happen in all kinds of situations, where nobody has done anything wrong. There are risks involved in health care. Just because something bad happens doesn’t mean someone was negligent.

Negretti: Let me stop you right there, because that’s an interesting point. People say it was a risk of the procedure. Can you dive a little deeper on what that means — “risk of the procedure”?

Ager: For example, let’s take an abdominal surgery. The surgeon is going into remove an ovarian cyst, and there happens to be a structure that is unexpected, because it wasn’t seen on CT. The anatomy of the person is a little bit different from what one might expect. There is something about the presentation that is a little bit unusual, and the surgeon lacerates an artery or some other organ unexpectedly. That’s not necessarily malpractice. That’s an example of perhaps a bad outcome happening without anybody really having done anything wrong.

Negretti: What basic elements need to be present for you to consider taking a case?

Ager: You need to have three things.

First, you need to have a healthcare provider that makes a mistake — and that means that they didn’t do something that they were supposed to do, or they did something that they weren’t supposed to do.

Second, you have to have a relationship between that mistake and a bad outcome. Not every bad outcome can be attributed to a mistake. Teasing out whether a bad outcome is a result of a mistake or a result of a natural consequence of something else is something that you need to look into.

The third thing is damages. Damages in medical negligence cases need to be significant. While anybody who has been harmed by any kind of conduct is going to have damages of some sort —and I feel badly for the people who have been damaged as a result of medical negligence — unless damages are very significant, it’s not a case. Very significant means in the $250,000 to $300,000 range — probably just to start, under most circumstances.

Those three stars absolutely have to come into alignment: Somebody doing something wrong, causing an injury, and significant damages.

Negretti: If someone thinks that they were wronged in some way during a medical procedure or surgery, and they don’t necessarily understand the legal components behind that, would you tell them to go online, do some research of their own? Would you tell them to call you and have a conversation with someone on your team?

Ager: Absolutely, I’d tell them to do both things. The Internet is a wonderful resource. Patients and physicians that I depose these days tell me patients go home after a diagnosis and, within 30 minutes, they know more than the diagnosing physician about that diagnosis. There are all kinds of excellent resources for patients, in general — and especially those who believe they may have been harmed by negligence — to get a better understanding of what’s going on and what the future might hold for them.

In terms of evaluating a particular set of circumstances in a medical-legal context, you absolutely need a skilled lawyer to do that. You need a lawyer that’s been doing this kind of work for a long time — preferably someone who is a certified specialist in injury and wrongful death claims, and who holds themselves out as doing this kind of work.

The Internet is a good place to go and find those types of lawyers. Especially if you are a moderately sophisticated consumer, you should be able to tell from looking at the Internet the people who are actually doing this kind of work and can give you good advice about whether you have a claim.

Negretti: What if my wife had a procedure, and I just had some questions about whether or not it was done correctly. I don’t know that I want to sue anyone. Would you say I’m still okay to call your office and talk to someone?

Ager: Absolutely. I’m happy to speak to anyone, and I think our profession owes it to consumers, generally, to take the time to let them know whether they have a case or not. Even if they’re not very confident that they do, or even if it’s a small case that might not, off the cuff, look like it is much. My staff and I will take the time to talk to anybody who believes that they have been harmed by medical negligence, and we will take the time to tell them at the conclusion of our interaction — whether it’s at the end of a phone call, at the end of looking at medical records, at the end of having them reviewed by an expert, whatever it may be — to let them know within an exceedingly high degree of confidence that they don’t have a case and the reasons why, if we’re not able to move forward.

Negretti: That’s amazing. I want to pause there for a minute, because there are a lot of attorneys that shy away from telling people, “You don’t have a good claim,” regardless of whether it’s medical negligence or just ordinary negligence related to a car accident. And you’re telling me you’ll sit down and, and tell people, “Look, based on our review of everything and the records that we’ve looked at, we don’t think you have a good case, and here’s why.” Is that safe to say?

Ager: I believe that a good lawyer has an ethical and professional obligation to the profession and to the community to take the time to shoot straight with a potential client. I understand that there are lawyers out there that are afraid of medical malpractice, or of legal malpractice lawsuits, who are giving bad advice.

The code words that you would hear are, “You know, I’m too busy,” and “You know, I just don’t have time for your case.” That’s code for “You don’t have a very good claim.” But it doesn’t help the potential client out. It doesn’t help the community out, to send people off to somebody and with some degree of hope that they shouldn’t have. If you’re hearing something like that, you know that is probably what it means. You really need to hear from somebody — who knows what they’re talking about — “Unequivocally, I don’t believe that this is a case.” When that happens, I always encourage folks to get a second opinion.

Second opinions from lawyers are like second opinions from folks in every other profession. Not everybody sees things the same way that I do, and I don’t see the same things that other people see. So, it’s important, I think, to get at least a few people on board, if you do have a significant claim, or if you have some concerns, to make sure that you’ve heard from a few people the same type of thing.

People who have been harmed by medical negligence — people who have been harmed by any kind of an injury — have had their lives likely significantly affected, in probably more than one way. It’s important that at the end of the day that they know that they’ve done everything in their power, that they’ve done everything reasonable, to pursue a claim — if that’s something that they wanted to do, or something that they were considering. If you wait too long, you’re going to lose the opportunity to pursue a claim. The last thing that anybody wants to be thinking about at some point in the future is, you know, “Gee, did I have a claim, and should I have pursued it?” once it’s too late.

Negretti: Out of a hundred cases that your team reviews for possible representation, how many of those will you take?

Ager: I think that our intake is probably consistent with most lawyers doing this type of work. Based on what I hear from my colleagues, it’s around one in a hundred.

Negretti: One out of a hundred!

Ager: It takes quite a bit of time to do this kind of work. It’s important work. It’s important that we look carefully at these cases. Again, it’s important for the folks that come to us, to know why it is that they don’t have a case in those 99 times, that they don’t. And that’s just as important as it is for us to help the folks, in the one case out of a hundred that we’re able to take.

Negretti: What is the expected cost? I know this could vary greatly based on the complications of the case, but what would you expect someone to spend on a medical malpractice claim?

Ager: Well, first of all, if you are speaking with a lawyer who wants to spend any of your own money on anything, run the other direction as fast as you can. No reasonable lawyer will require that of a client. No reasonable lawyer will put the client on the hook for any of that lawyer’s costs.

At the end of the day, a client could be responsible for the costs of a defendant who is sued and prevails. There are a lot of ways to prevent that from happening, but that is a risk. Clients need to be told that up front.

In terms of what it costs someone like me, the range can vary. If we are investigating a case, it may be as simple as spending a couple of hundred dollars to look at medical records before we’re able to conclude that there is not a case and explain, with a high degree of certainty, to a potential client why there is not. It may be hiring an expert witness to take a look at the medical records and offer us an opinion. And that could be maybe $5,000, maybe more than that depending on the number of experts that you need.

Taking a case all the way through trial, depending on the number of experts that are required — and that’s the main cost in these cases, is getting experts to talk about those issues that I mentioned earlier: doing something wrong and causing damages. You need experts on all of those things, and if you have a whole lot of experts in a case, going through trial could run you easily over $100,000. I have heard lawyers spending upwards of $300,000 and $400,000 on getting a case through trial.

To contact John Ager, visit sandwegandager.net or call him directly at 602-648-3210.

tesla smart summon liability and insurance implications

In late September, car maker Tesla revealed a truly remarkable new technology for its cars, called Smart Summon. This software application enables Tesla drivers to use their smartphones — almost like joysticks — to order their cars to come to them.

With Smart Summon, you can walk out of a grocery store, pull out your smartphone, and request that your Tesla drive itself from its parking space to the curb where you’re standing, to pick you up.

Search the web for “smart summon” and you’ll already find hundreds of articles and videos about this new technology. The new self-driving feature has been met with immense curiosity and enthusiasm, as well as concern.

One of those articles has been written by Timothy Lee for arstechnica.com. After watching more than one hundred Smart Summon videos, Lee offers his impressions of the technology. “Smart Summon certainly has weaknesses (and I’ll discuss those in detail),” he writes, “but it’s important to first acknowledge that the technology worked in the vast majority of the more than 100 videos I viewed. I watched dozens of people successfully summon their cars from across parking lots without incident.”

It’s amazing to see Lee’s curated collection of perfect drives and near misses that have resulted from use of this new application.

Yet, while worthy of excitement, the new Smart Summon feature does raise many “what if” questions surrounding liability and insurance coverage.

What if a Tesla were to hit another vehicle, or is hit by another vehicle, while it is in the process of being summoned — and there’s no one physically driving the vehicle? Who is responsible?

Even worse, what if a Tesla were to hit a pedestrian while in Smart Summon mode? Is the “driver” — or summoner of the vehicle — at fault, or is the car’s manufacturer?

Watch a Tesla in Smart Summon mode try to navigate out of a parking space with a pedestrian nearby.

Insurance Policies Have Been Left in the Dust

Just like a fully loaded Tesla Model S zooming ahead of a diesel semi-truck after a light turns green, self-driving vehicle technology has raced ahead of state and federal laws. Insurance companies, too, have plenty of catching up to do.

Customarily, insurance companies cover the liability caused by the driver while utilizing a vehicle, as well as damages caused when another driver either doesn’t have insurance or doesn’t have enough coverage.

Prior to the availability of Smart Summon technology, it would have been highly unlikely for insurance companies to seriously contemplate whether they needed to provide coverage for vehicles that were suddenly able to drive themselves.

In other words, a scenario in which a summoned Tesla gets into an accident while the insured “driver” navigates her Model S with her phone through a busy Home Depot parking lot, to pick her up at the curb, would have seemed pretty far-fetched just a few weeks ago.

To continue with that example, imagine that a human-operated vehicle crashed into the smart-summoned Tesla in a parking lot. The Tesla owner wouldn’t have an injury claim, but she certainly would have a property damage claim. Does the insurance policy afford coverage in that situation?

Arguably, at this point in time, the insurance company would have to provide coverage. Even though the car may be “driverless,” the assumption is that the insured would be the owner/operator of that vehicle — commanding her vehicle through her phone.

But this is only an assumption. Such scenarios haven’t been fleshed out in the court of law yet. Smart Summon is too new.

Until such cases develop, cause for concern will remain. Use of Smart Summon will continue to raise important questions about who is ultimately responsible for an accident.

Just as we will learn of updates that Tesla has made to Smart Summon, we will assuredly witness a constant evolution of other applications that are coming to market. Insurance coverages afforded to these vehicles will change, as well.

Parallels with Rideshare Insurance

It wasn’t that long ago when Uber and Lyft first made it possible for people to use their own cars for hire.

During the early days of Uber and Lyft, there were never exclusions in automobile policies. If you were driving your vehicle for hire, not being covered by your personal auto insurance policy was unthinkable. The need for a secondary or supplemental insurance policy, or coverage options from a rideshare company, was the last thing on an Uber or Lyft driver’s mind.

Today, a huge number of people drive for Uber and Lyft — many on a part-time basis. Yet, nearly every individual insurance policy excludes coverage for driving for a rideshare company, should he or she get into an accident while using a personal vehicle for a commercial purpose.

In the ridesharing industry, insurance policies eventually caught up with technology. We’ll probably see the same thing happen with Tesla’s Smart Summon application.

A Developing Story

When a revolutionary technology emerges, the story surrounding the technology will take time to develop. At the time of writing this article, Smart Summon is in its third week of use. Numerous companies are working on technologies that are similar to Tesla’s. It’s almost impossible to predict what will happen next.

Undoubtedly, insurance policies will evolve. We will witness challenges to insurance coverage. We are going to learn where responsibility lies with self-driving cars. We’ll find out whether insurance companies will assume responsibility and provide coverage, should a driverless accident or injury occur.

In the meantime, be sure to watch these newest Smart Summon videos. They are fantastic and captivating. The ability to order a vehicle to pull out of a parking space, drive in a crowded parking lot, navigate its way around cars and pedestrians, and pick us up in the front of a store, is mind-bending.

lawsuit loans and pre-settlement funding

At Negretti & Associates, in our day-to-day work as attorneys, it’s not uncommon for our clients ask us, “Should I get a lawsuit loan?”

A lawsuit loan — sometimes called a settlement loan, or pre-settlement loan — is essentially a loan taken out as an advance on the settlement of a personal injury case. Many companies offer these loans.

Why do lawsuit loans exist? After getting into accidents, people may miss work. They may be hourly employees, and not have paid time off. Meantime, rent, medical bills, and credit card statements keep coming due. Compounding things, cases may take months — perhaps years — to become resolved. As attorneys, we hear about hardship situations such as these on a daily basis.

How Do Lawsuit Loans Work?

A lawsuit loan company will offer a loan after carefully assessing the value of a claim, based on its experience and expertise. Lawsuit loan firms typically do not lend more than 10 to 15 percent of the amount that the borrower will receive from a settlement.

Consider the following example:

  • Estimating that a lawsuit settlement has a value of $30,000, the lender may calculate that the borrower will receive a third of that figure, after paying attorney’s fees and medical bills.
  • Projecting that the borrower will receive $10,000, the lender will issue a loan of $1,000 to $1,500 on the personal injury claim.

Yet, here’s what you have to remember: Due to the costs associated with generating the loan, along with the interest that accrues with that loan, the borrower may be obligated to pay back more than twice the loan amount — even if the loan is outstanding for just a few months!

The reason why? Lawsuit loans have no “recourse” associated with them. In other words, there is no personal guarantee associated with this type of loan. They are unlike a mortgage or a car loan, where the lending company holds the title to the property and can repossess the property if payments become delinquent.

Since lawsuit loans are “non recourse,” when a lawsuit fails, and the client recovers nothing, the lending company is not paid, either. The lender therefore takes a big risk when issuing the pre-settlement loan.

This explains why these lenders usually charge very high interest rates. In addition to the interest accrued during the time while a loan is outstanding, borrowers face substantial initiation fees, document preparation fees, and other processing costs. There isn’t a cap on what pre-settlement funding lenders can ask for.

Do Lawyers Give Advances on Settlements?

It’s important to remember that attorneys cannot lend money on cases that they represent. The rules of ethics that govern the legal profession do not allow for this. By issuing a lawsuit loan to a client, an attorney could lose his or her license to practice law!

Because attorneys cannot issue loans, third-party lenders have entered the picture, as a way of providing clients with up-front, immediate funding while their cases are resolved.

Are There Alternatives to Lawsuit Loans?

At Negretti & Associates, we discourage clients from seeking lawsuit loans. We believe that clients should not put themselves in situations where they’ll be obligated to pay back two times the money they borrow, simply to have a cash advance for a couple months.

Further, one should not treat a personal injury claim like a bank account. Doing so is the wrong way to look at the entire process. Just as no one expects to get into an accident, one shouldn’t have any expectations of recovering money related to that accident.

We try to do our best to work with our clients and put them in positions to either resolve their cases as quickly as possible — achieving a fair value for a case in the process — or explore alternative ways of borrowing money, when necessary. Ultimately, however, we disapprove of using these loan products, because of the fees and costs associated.

We would much rather see a client borrow money from a friend or a family member — someone who isn’t going to charge fees and interest to borrow some money.

The Attorney’s Role in the Lawsuit Loan Process

On some occasions, in the most challenging situations, there may not be an alternative to pre-settlement funding. When necessary, as attorneys, we will certainly respect the client’s wishes and become involved in the loan process.

In our role as the client’s legal counsel:

  1. We must guarantee to that lending company that we’re going to pay them from the proceeds of the settlement; and
  2. We are typically asked to sign on the same loan agreements as the borrower, acknowledging that we are bound to pay the lending company for the loan issued on the personal injury claim.

In sum, when signing onto a lawsuit loan, the borrower agrees to pay part of their settlement to a third party. Essentially, they’re assigning their rights to someone else.

Negretti & Associates carefully reminds each client that there may be a time in a case’s lifespan when real life intersects with a personal injury claim. Bills need to be paid. Clients may face the possibility of having no food on the table, or possibly being evicted, going to collections, and having credit ruined. Clearly, these are tricky issues to wrestle with. These are real things that attorney and client must collaboratively contemplate together.

If you get into a situation where you’re faced with such a dilemma, and you want to just talk things over, Negretti & Associates will be happy to have a conversation with you. Call us at 602-531-3911 in Arizona, 619-777-3370 in California, or 720-636-3444 in Colorado. Or, you can contact us with our online form.

pain and suffering settlements

If you’ve ever been in an accident, you already may be familiar with “pain and suffering” as a legal term. Pain and suffering is the physical and emotional stress caused by an accident. Attorneys sometimes refer to this as the “hassle” factor for having to deal with the aftermath of an accident. It can include everyday aches and pains, as well as emotional distress that few may be aware of.

Ultimately, pain and suffering is a catch-all term used for classifying general damages. In Arizona, California and Colorado, for example, there are jury instructions that explain what specific types of damages a claimant is entitled to. In Arizona, juries are asked to consider “the pain, discomfort, suffering, disability, disfigurement, and anxiety already experienced, and reasonably probable to be experienced in the future as a result of your injury.”

When determining the value of a case, pain and suffering is just one aspect the overall damage calculation. Beyond property damage, a client’s medical bills and lost wages — and other factors, such as physical impairment and emotional distress, as well as the physical location of the accident — also need to be considered.

By evaluating the totality of a situation, an experienced lawyer can place a value on a claim, and educate the client on what a fair settlement might be.

Average Pain and Suffering Settlements

Unfortunately, there are many myths surrounding pain and suffering settlements. Perhaps the greatest myth of all is that it’s possible to find an “average” pain and suffering settlement.

After all, numerous websites offer pain and suffering calculators. If you are an accident victim who is trying to determine what your case is worth, you may have already encountered a variety of articles offering guidance on settlement averages.

Regrettably, in reality, there is no such thing as an average pain and suffering settlement. This is especially the case for car accidents, because no two car accidents are exactly same. In fact, at Negretti & Associates, we sometimes represent multiple people involved in the same car accident, and each person’s injuries are different. Each person’s pain and suffering damages settlement will vary depending on his or her injuries.
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Rather than trying to figure out an average settlement, accident victims really should be trying to determine whether their settlement seems fair, based on their individual circumstances.

Measuring Pain and Suffering

A measure of pain and suffering often comes by way of an impairment rating. At Negretti & Associates, when clients are injured to the point of being permanently impaired, we have them evaluated for an impairment rating. This rating typically comes in the form of a percentage.

For example, a client may have a 6 percent impairment in her wrist. This impairment is really a form of pain and suffering. Using our knowledge of impairment ratings, we are able to capture compensation that reflects the pain and suffering that the client would experience due to the impairment.

Pain and Suffering Due to Emotional Distress

Emotional distress is a recognized claim that can be made within the aspect of pain and suffering. Emotional distress is almost always felt and rarely seen. Sometimes the outward manifestation of an emotional reaction can be detected, but most of the time people suffer in silence.

One of the biggest emotional distresses that we see from our clients is anxiety after an auto accident. Our clients often tell us that they get really anxious driving after an auto accident and feel an overwhelmed and fearful that everyone is going to hit them. In some cases, this emotional distress becomes so debilitating that clients have to seek treatment from a medical professional for possible diagnoses, such as post-traumatic stress disorder.

Emotional distress is an important part of your pain and suffering claim. At Negretti and Associates we usually ask each client to write a victim impact statement, so that we can help the insurance company better understand the emotional distress that our client suffered.

In one pain and suffering case, Negretti & Associates represented a young girl who was traumatized from being locked inside of a store and not allowed to leave. We were able to work with our client to understand the root of her trauma. Through the medical professionals who treated her, we were able to better grasp the night terrors that she suffered from. Armed with this information, we negotiated a settlement that included the pain and suffering that this young girl experienced — and was expected to continue to experience.

Get the Help You Need

At Negretti & Associates, our team of experienced lawyers works to negotiate on behalf of our clients, to ensure that we reach the target value that we place on a case.

If you have a pain and suffering settlement question, call us at 602-531-3911 in Arizona, 619-777-3370 in California, or 720-636-3444 in Colorado. Or, you can contact us with our online form. We’ll be happy to talk with you.

defamation claims

When people hear the term “personal injury lawyer,” they typically think of auto accidents. It’s common to see personal injury lawyers in TV commercials talking about how they can help victims of auto accidents.

Yet, personal injury law is so much broader than car accidents. Of course, personal injuries can be physical, such as whiplash or broken bones sustained in a car accident. Yet, they can also be emotional in nature — especially when there is damage to one’s reputation.

When a reputation-damaging remark meets a series of criteria, it may be worthwhile to consider filing what is called a defamation claim.

Types of Defamation: The Difference Between Libel and Slander

What is defamation? At its essence, defamation is an umbrella term for a remark that is harmful to one’s reputation. There are two types of defamation: libel and slander.

  • Libel is when someone writes something about you that is defamatory and, in turn, harms your reputation. A written defamatory remark can be published in traditional media — such as a newspaper, magazine, or book — as well as in digital media, such as a text message.
  • Slander is when someone says something about you that is defamatory and, in turn, harms your reputation.

How Do You Prove Defamation of Character?

If you are the victim or a defamatory action, how do you prove that you have been harmed? There are three key elements to proving defamation of character. You have to prove that the defamatory statement was published or told to somebody else; that the statement was false; and that you were injured in some way

First, you have to prove that the information was published. As mentioned above, a written remark can be published in a newspaper or book, while a spoken remark can be told to someone else, in the presence of another party.

The spoken remark can’t simply be between two people. For example, if someone were to call you a liar in private, with no one else present, then you’ve simply been called a liar. Yet, if a third person is present for the conversation and listening, and someone calls you a liar, then the remark can be considered defamatory.

Second, you have to actually prove that the statement was false. When it comes to defamation lawsuits, there’s a common saying, that “the ultimate defense is the truth.” If someone says something that is truthful, that is the defense to a defamation claim. The party that has been harmed must prove the statement false.

Third, you must prove that the written or spoken statement actually led to injury, and that there was some harm. Again, in the context of defamation, injury can span emotional or financial injury — a dented reputation or a loss of job opportunities, for example.

If the three elements for proving defamation are met, then the victim has what is called an “actionable” defamation claim.

Opinions and Defamation

You will see a lot of defamation suits involving Hollywood actors and actresses. Because of their status, and because their reputations mean everything to them, actors and actresses are more likely to pursue defamation claims when negative things are written about them, or said about them on TV or online.

Yet, defamation claims can be hard to pursue. For a claim to be worth pursuing — in terms of time, money, and effort — one must have a substantial reputation to begin with.

Further, just because someone voices or publishes a negative opinion, and it is truly just an opinion, they may not have made a defamatory statement.

If you believe that you have been the victim or a defamatory statement, and some sort of actionable claim can be made, give Negretti & Associates a call, at 602-531-3911 in Arizona, 619-777-3370 in California, or 720-636-3444 in Colorado. Or, you can click here to contact us with our online form. We’ll be happy to talk with you.

Granted, you may have to put your pride on the sidelines for a minute as we reflect upon the three key elements of defamation: Was the statement published or told to someone else? Was it false? What are the injuries that you suffered as a result of the statement, and did it stop you from getting a job, or cause you to lose your job?

car accident out of state while on vacation

Have you ever had the terribly unfortunate experience of having a car accident out of state, while on vacation? An otherwise perfect trip can be completely ruined in an instant.

You could be California resident who has had a car accident while on vacation to the Grand Canyon, or an Arizona resident on who has had an accident outside of Disneyland. Because you reside in one state and have an accident in another, you may face a series of highly important, but very common, questions regarding finding the right lawyer for your accident claim.

Watch Negretti & Associates’ Jonathan Negretti on AZTV 7’s Daily Mix show, discussing what you should do if you have a car accident out of state, while on vacation.

Negretti & Associates is a personal injury firm that is licensed to practice law in Arizona, California, and Colorado. We’re familiar with the laws of those three states, and we have handled many claims in each. We have helped many Arizona residents who have had accidents in California and receive treatment for injuries while at home in Arizona.

Experience has taught us this: If you have been involved in a car accident out of state, you will want to work with an attorney who is licensed both in the state where the accident occurred, as well as the state in which you live and are receiving post-accident treatment.

This is because there are different laws in all 50 states of the United States. What’s more, there be conflicts between state laws, and some states have little-known laws that can directly impact what you are entitled to, in terms of damages and recovery. It can be tremendously helpful to work with a lawyer who knows and understands the differences of “local” state laws.

Example: A Disneyland Trip Gone Wrong

Imagine that you and your family drive from Arizona to Anaheim, to take the children to Disneyland. You’re nearing the entrance to the Disneyland parking lot and suddenly you get rear ended.

You take the kids the hospital, to have them checked out. You quickly realize that it’s best to return home early. Vacation is over.

Once at home, you start looking for a personal injury attorney to help you with your accident claim. The accident happened in California, and the person who rear-ended you is a California resident. Yet, you are an Arizona resident who will be receiving medical treatment in Arizona.

Some questions start to bubble to the surface:

  • Should I hire an attorney in California, or an attorney in Arizona?
  • Does it matter whether the attorney in Arizona is licensed to practice law in California?
  • Does it matter whether the California attorney is licensed to practice law in Arizona?

These are normal, common questions to be thinking about in this situation. As the following legal cases show, a lawyer who knows and understands the differences in state laws can have an important impact on your accident claim.

Differences in California and Arizona Accident Laws

In the event that you are on that trip to Disneyland, and you don’t have auto insurance at the time of your accident, you may be limited on what you can recover as a claimant in that auto accident claim, because of a less-well-known law called Proposition 213.

Prop 213 says is that if you are in an auto accident and you are not at fault, but you did not have auto insurance at the time of the accident, you are not entitled to recover for your pain and suffering. That drastically changes what you can recover for your injuries in an auto accident claim.

California attorneys would be very familiar with Prop 213. Yet an Arizona attorney who has never practiced in California may not aware of this law, because there is no equivalent to Proposition 213 law in Arizona. In effect, you could work with an Arizona attorney to pursue your claim, and all of the sudden you realize that you’re only able to be paid back for your medical bills — not additional pain and suffering.

In addition, there is also a California Supreme Court decision, called Howell v. Hamilton Meats & Provisions, Inc., of 2011.

The Howell case decided that, in California, the auto insurance company only has to pay you for paid hospital or medical charges, not billed hospital or medical charges.

To illustrate, assume that you get into an accident in Arizona. You go to the hospital, and the bill for medical treatment is $1,000. Your health insurance pays $250. You submit the $1,000 bill and you get compensated $1,000 by the auto insurance company that insured the driver who caused the accident. They may argue about the reasonableness of that bill, but essentially, the argument would be that you should get paid for the $1,000.

In California, according to Howell, there are key differences. You would go to the hospital and be billed $1,000, and your health insurance pays $250. Yet, the other driver’s auto insurance company is only required to pay $250. This causes a number of problems:

  • Your health insurance company may have a right to be reimbursed for anything they paid on your behalf, which means your net result there is zero.
  • The hospital, itself, may record a lien, stating that it wants to recover the difference between what your health insurance paid ($250) and what the billed charges were ($1,000). As a result, you would owe the hospital $750.

Scenarios such as these frequently come into play when dealing with out-of-state car accidents. That’s why having an attorney who is familiar with local state laws can be helpful when you are in an accident in a different state.

Compensation for Unused Tickets and Reservations

Let us return to the Disneyland accident example for one moment. If you were unable to enjoy your theme park visit because of the accident, you should be compensated for the unused tickets, in addition to car damages and medical bills. The unused tickets are considered to be among your damages, which is a legal word for your losses that occurred as a result of that accident.

Yet, if you were in an accident and went into Disneyland anyway, and it wasn’t any fun for you, because you had a sore back, a claim of damages would be a tough argument to make. There would be no way to verify whether you didn’t enjoy yourself, or didn’t enjoy the park as much as you would have, had you not been involved in an accident.

Other forms of loss that you may have experienced — such as unused, nonrefundable hotel reservations, or having to purchase plane tickets to fly back home early, because you could not drive — may also qualify as damages. All sorts of out-of-the-ordinary things can happen with accidents while on vacation.

That said, if you are an Arizona, California, or Colorado resident, and you have a question about damages related to your out-of-state car accident — while on vacation in Arizona, California, or Colorado — contact Negretti & Associates. We’ll talk you through what compensation you may be entitled to.

Having Trouble Finding an Out-of-State Lawyer? Contact Negretti & Associates

If you get into an accident in a different state than where you live, and you are trying to find an attorney who is licensed in both those states, and it may not be easy.

If you cannot find a lawyer that is licensed in two specific states, give Negretti & Associates a call. We have access to a database of attorneys who practice all over the US. We will do our best to find you someone who is licensed where your accident occurred and licensed where you live.

We would rather have you put in the right hands — a law firm who understands local laws and can help you properly resolve your accident claim. You should achieve a recovery that’s commensurate with everything you endured with regards to your accident.

Please call us at 602-531-3911 in Arizona, 619-777-3370 in California, or 720-636-3444 in Colorado. Or, you can click here to contact us with our online form.

phoenix pedestrian accident attorneys

Just as Phoenix has become a bustling metropolitan city — with new commercial developments, roadways, and residential communities debuting with each day — accidents involving pedestrians and motorists have been on the rise. Since 2010, the number of pedestrians killed by cars in Phoenix has more than doubled.

Tragically, many accidents commonly occur in places where people and vehicles are forced to share limited space — at crosswalks, intersections, light-rail crossings, and parking lots. Far too often, drivers are simply not paying attention to their surroundings.

If you’ve been injured in a pedestrian accident in Phoenix, the outcome of your accident can hinge on whether or not you have an experienced personal injury lawyer on your side.

Pedestrians have the same right to recover monetary damages as drivers do in auto accidents. Unfortunately, many injured pedestrians are unaware of this, and never receive the compensation that they are entitled to. Without an attorney, they risk being stuck with expensive medical bills and, even worse, life-changing injuries.

The experienced Phoenix pedestrian accident attorneys at Negretti & Associates will vigilantly defend your rights and pursue any rightful claims for damages, medical expenses, and compensation for the pain and suffering you have endured.

What To Do If You Have Been Hit by a Motorist in Phoenix

Here are some steps to take after you’ve been involved in a pedestrian accident:

  1. Record the names, addresses, insurance information, and license plate numbers of all the vehicles involved.
  2. Be sure to get the contact information of all witnesses present.
  3. Photograph and document the scene of the accident and your subsequent injuries.
  4. Seek immediate medical attention for all of your injuries.
  5. Do not speak with insurance companies or sign any documents regarding the accident until you have discussed your case with an experienced Phoenix pedestrian accident attorney.

How a Phoenix Pedestrian Accident Attorney Can Help Seek Compensation for Injuries

In Arizona, motorists are responsible for yielding to pedestrians and paying attention to their surroundings. If a driver fails to do either of these two things and causes injury, the injured person will likely be able to bring a claim and collect compensation.

If you have been in a pedestrian accident and can show that the driver was at fault, the at-fault driver’s insurance can cover your medical expenses related to the accident in most cases.

Arizona law requires that all motorists carry auto insurance. The minimum amount of coverage includes the following.

  • $15,000 per person for bodily injury or death
  • $30,000 per accident if more than two people are involved
  • $10,000 for property damage or destruction

These are the minimum requirements laid out by Arizona Revised Statute 28-4009. However, if the driver is not insured, you may could either file a lawsuit or look to your own insurance carrier for compensation.

If you are a pedestrian injured by an uninsured motorist, you may be eligible for compensation through your own insurance provider and your insurance policy.  You will want to contact an experienced Phoenix pedestrian accident attorney to help you navigate the process. The personal injury attorneys at Negretti & Associates are ready to assess the circumstances of your accident and convey options that are available to you.

When an Accident Occurs Outside of a Crosswalk or While Jaywalking

Like all roadway users, pedestrians have a duty to observe and obey traffic laws and control signals. This means, for example, that a pedestrian may not walk alongside highways or step from a sidewalk into traffic without assuming legal responsibility for any subsequent accidents his or her conduct causes.

Pedestrians may typically only cross at marked crosswalks when they receive the go-ahead from the control device. Arizona Revised Statute 28-793 prohibits pedestrians from “jaywalking,” or crossing the roadway where there is not a marked crosswalk or intersection. A pedestrian must yield the right-of-way to vehicles in the roadway, and wait until traffic clears to safely cross.

Should a pedestrian decide to step into traffic without allowing enough time and room for oncoming vehicles to stop, he or she will likely be held responsible for an accident that follows.

Why You Should Choose the Phoenix Pedestrian Accident Attorneys at Negretti & Associates

At Negretti & Associates, we will vigilantly defend your rights and pursue any rightful claims for damages, medical expenses, and compensation for the pain and suffering you have endured in your accident. We also understand the importance of securing compensation for future medical treatment and for the time you have to take off from work to deal with your injuries. We will work diligently to maximize your recovery and help you achieve the best possible settlement.

There is no reason for you and your family to go this alone. The experienced accident attorneys at Negretti & Associates are ready to fight for you. If you’d like to schedule a free consultation, please call us at 602-531-3911 or click here to write to us.

safety tips for memorial day weekend in arizona

This Memorial Day weekend, families across the United States will celebrate the unofficial beginning of summer. For those of us living in Arizona, this monumental three-day weekend means embarking on a spontaneous road trip, grilling by the pool, or lounging on the lake. However, fun activities such as these often mean an increase in accidents over the holiday weekend.

Most people don’t feel like an accident would ever happen to them. Unfortunately, accidents are unpredictable and can happen to anyone.

By taking simple safety precautions, you can decrease the chances of an injury to you or a loved one.

Road Safety

Memorial Day is among the worst days of the year to be on the open road. With 44% of all traffic fatalities are alcohol-related, one cannot be too cautious on such a notoriously celebrated holiday.

You can avoid an alcohol-related accident by:

  • Having a designated driver
  • Arranging for a place to stay if you don’t have a designated driver
  • Calling a cab or an Uber/Lyft
  • Make sure your vehicle has been properly maintained

Pool Safety

The most popular way to cool off, especially here in Arizona, is a dip in the swimming pool. Even though an afternoon out by the pool is fun, accidents still happen. Hundreds of children have drowned during the Memorial Day Weekend.

Below are some tips to keep you and your youngsters safe:

  • Do not run near the pool
  • Never leave children unattended
  • Have life jackets available
  • Keep pools maintained properly

How An Accident Attorney Can Help You

If for whatever reason you find yourself in harm’s way this Memorial Day weekend, there’s no need for you to face the insurance companies alone. At Negretti & Associates, our dedicated accident lawyers are here to help you get back on your feet after your accident.

Your recovery can hinge on whether or not you have an experienced accident lawyer on your side.

An insurance company will try to minimize your injuries to save themselves as much money as possible. Do not go it alone. We will negotiate with the insurance company on your behalf to get you the maximum compensation you deserve for your current and future medical treatment, property damage, and lost wages.

We will vigilantly defend your rights and pursue any rightful claims for damages, medical expenses, and compensation for the pain and suffering you have endured. We also understand the importance of securing compensation for future medical treatment. We will also help you collect compensation for time you have to take off from work to deal with your injuries. Learn more about auto accident cases.

Our team of accident attorneys knows what it takes to win. We promise to fully investigate your claim and make sure you get the recovery you deserve. Please call us at 602-531-3911 or click here to email us.

self-driving car accidents

According to the National Highway Traffic and Safety Administration (NHTSA), approximately 94% of car accidents are due to human error. Innovators have imagined a world where our faults would no longer endanger each other on the road.

Today, self-driving cars seem to be a permanent reality, especially in Arizona where Uber had been testing its autonomous vehicles. While many passengers arrived unharmed, one self-driving car hit and killed a pedestrian on March 18, 2018.

As self-driving vehicles enter our roads, the chances of self-driving car accidents will inevitably increase.

Potential Claims for Self-Driving Car Accident Victims

Although the law surrounding self-driving vehicles is widely unsettled, Nevada and California have determined that the operator of the car (the person who “causes the technology to engage”) is responsible if there is an accident.

How An Accident Attorney Can Help You

If you have been injured in a self-driving car accident, do not hesitate to give us a call. Your recovery can hinge on whether or not you have an experienced accident lawyer on your side.

An insurance company will try to minimize your injuries to save themselves as much money as possible. Do not go it alone. At Negretti & Associates, we will negotiate with the insurance company on your behalf to get you the maximum compensation you deserve for your current and future medical treatment, property damage, and lost wages.

We will vigilantly defend your rights and pursue any rightful claims for damages, medical expenses, and compensation for the pain and suffering you have endured. We also understand the importance of securing compensation for future medical treatment. We will also help you collect compensation for the time you have to take off from work to deal with your injuries. Learn more about auto accident cases.

Our team of accident attorneys knows what it takes to win. We promise to fully investigate your claim and make sure you get the recovery you deserve. If you’d like to schedule a free consultation, please call us at 602-531-3911 or click here to email us.