Car Injury Lawyer Interviewed

Interviewer: Let’s talk about your track record. You’ve been a personal injury attorney for a number of years, and seen a lot of settlements and gone to trial, so what are the salient moments, the “Best Of” reel?

Stephen Counts: That’s hard to nail down in a really sort of short interview like this. But a few things will stand out in my mind. Obviously, trials are the most dramatic. They’re always the most dramatic. And so, the pictures that I hold in my mind of certain trials will stay with me the rest of my life. And the feeling of prevailing against a large corporation or an insurance company along the lines of Allstate who repeatedly refused to remain accountable for their insurer’s wrongdoing…

Interviewer: I thought people were in good hands with them.

Stephen Counts: I have seen a couple of websites I can refer you to if we’re talking about Allstate. One is called Allstatesucks.com, and I say this —

Interviewer: That’s a pretty vague title.

Stephen Counts: I say this tongue-in-cheek, because I don’t want anybody to get the impression that I’m personally hateful or vindictive against any particular company like an insurance company, but after doing this for as many years as I have, the tactics that are repeatedly used to shoot down an individual’s claim and keep somebody who is genuinely and severely injured from truly making a proper recovery as a result of withholding money that rightfully should be theirs in order to get better, it just — it gets under my skin to a certain extent.

With that being said, the spirited nature of my disagreements with these insurance companies only drives me on to become better and better at what I do so that I become more and more effective against what I know to be their consistent tactics that really run contrary to the interests of my clients.

In any case, one thing that is actually quite a notable and ongoing process right now that I’m having with a case called Olsen vs. Reed — it’s a case that I had taken up on appeal. We had to take a verdict at the Orange County Superior Court, and the verdict was $250,000. And after the verdict was rendered, the defendant — who was represented by Allstate — went back to the trial court and asked them to reduce the verdict by over $50,000. As the basis for that request, they cited a number of cases — Nishihama vs. City and County of San Francisco, Haniff, Greere — a number of cases that, according to the defendant, stood for the proposition that where an insurance pays a certain amount of money on an injured person’s behalf that person is only entitled to recover the exact amount that the insurance company paid. The reason that that position is so devastating for consumers like you and me and like my client is that we, as consumers, spend our hard-earned money to purchase health insurance. We spend — as do small businesses — spend thousands of dollars a month on health insurance premiums. And the health insurance company takes all those premiums, puts them into a big pool, and they use that huge pool of premium to negotiate with healthcare providers. Because healthcare providers reduce their charges based on the amount — the money that consumers are paying to the health insurance companies. And what these medical providers like your family doctor will do is agree with the health insurance company and say rather than charging what I normally would charge for a doctor visit, I’ll charge you 30% less because I’m going to get quantity — meaning the health insurance company’s insurers, you and I — I would get more quantity of patients, and in return I will reduce my charges because the quality will go down but the quantity will go up. And it makes sense for healthcare providers like our family doctors to do that.

Well, what the defendant’s position in this case failed to recognize is that you and I pay thousands upon thousands of dollars in insurance premiums to get the benefit of that bargain between the health insurance company and the healthcare provider, like your doctor. And so what they were trying to do is say that the amount that a healthcare — or rather, a health insurance company-based medical provider is the measure of somebody’s damages. Meaning they’re entitled to thirty or fifty or whatever percent less as recovery, when California law clearly states — and has for at least fifty years — that evidence of insurance company payments are not to be considered when calculating damages.

Yet despite all of that, California Supreme Court Decisions to the contrary, the defendant brought this motion after the trial to try and take away over $50,000 from my client based on the fact that despite the fact that she paid thousands upon thousands of dollars in premiums over the course of her very long life at that point — she was, I believe, 71 years old when the incident happened — and paid premiums and Medicare and Blue Cross and other type companies — as far as we could tell, the evidence was somewhat sketchy on even how much was paid — but despite all that they still wanted to take away that over $50,000 that was rightfully awarded to her by the jury, those twelve people that decided that those were her damages.

Well, we took it up on appeal to the Fourth District, Third Division of California Court of Appeals and the appellate court reversed the court’s ruling that, in fact — and made the decision that the court wrongfully took away that over $50,000 of the verdict away from the client. It’s now up on what amounts to a Supreme Court review, and so the reason that this is important is because up to this point, there’s never been a case that has addressed this particular issue of can a court — after a verdict has been rendered by a jury of one’s peers — can the court go back in a case where private insurance is involved and reduce the verdict based upon a vague allegation of some allegation by the defendant that a certain amount was actually paid by that insurer?

And I don’t know if this is making sense to every one of you readers, but it’s such a crucial issue, because it goes to the core of our jury system. And a jury — a trial by our peers, which is the jury, is fundamental to what, even as far back as before the independence of this country, we were fighting for. And taking away that right to a jury trial is what really, in large part, prompted this nation to a revolution. And these are hard-fought victories in our court system — and if we’re taking away the ability of a jury to say this is the amount based on the evidence that we saw, that we think the plaintiff is entitled to, and we’ve seen all the evidence and there was no dispute about the evidence, if the court can then just take away some random percentage or some portion of that after the trial — then we’ve got a big problem with our jury system. And that’s what we’re fighting in this appeal. And the court ruled in our favor, and I believe that the Supreme Court is going to be ruling in our favor as well, but that’s a decision that’s yet to be determined.

Interviewer: When do you think that they’ll come down with their decision — it can happen any day, or it could be months away?

Stephen Counts: It could be months away. We don’t know, because the time limit that they have within which to make their decisions is very vague.

Interviewer: So in the meantime, has your client gotten any of the money that she has been awarded?

Stephen Counts: We’ve dispersed to her as much of the money as we have, is what we have done. And beyond that, we don’t have any more money to disperse to her. We’re waiting for the court to order the defendant to pay the full amount. So that’s one experience that recently — because of the gravity of the situation, and I think that the importance of the case really stands out to me. Any time that I can stand up, be it in a courtroom or even in a mediation in the context of an informal settlement, and look my client in the eye and say the deal that I was able to get for you, be it from a jury or from a mediator or just in terms of an informal negotiation, is the best that I can possibly do, is by far more than they ever would have even considered offering but for my efforts — anytime I can do that, I’m a happy guy. Because it validates, for me as it often does, the reality of my position, which is that if you stick to your guns and if you do what you know is right and if you don’t back down and you’re smart and you’re hardworking, you can achieve great things. Both for yourself, and in my case, for my client. And I think that’s really what gets me up every morning and gives me motivation to go into work, because I’m doing that every single day. And I can go home and sleep like a baby at night because I know that what I’ve done has been the best I can do and has been for a good cause.

Interviewer: It sounds like integrity is a high value of yours.

Stephen Counts: I like to think so. I try my best.

Interviewer: Now, will you steer the client toward settlement or let them make the call versus going all the way to trial? How does that sort of push and pull of a decision get made?

Stephen Counts: According to California law, I’m only able to advise my clients with regard to settlement options. For that matter, any option with regard to litigation. And that’s why they hire me, to get my advice and hopefully to take my advice. Mostly the decision is my client’s though, as well if as they were to settle the case for getting some of the money or take the case to trial and try and brave those waters and do better. And of course my advice will hopefully be taken by the majority of my clients. Every case is fact-specific and every case is different. And because of that, I can’t say that any given case should be settled short of trial or any given case should be mediated or arbitrated. The nuance to every case is something that I’ve become well-versed in, and that experience is why clients hire me and hire other attorneys from my firm. Because they need the experience that we’ve developed over our whole career of representing injured people.

Orange County Car Accidents

Has the volume of your cases gone up or down in the last few years for Orange County car accidents?

The volume has minutely decreased, but the quality and the size and the gravity has dramatically increased. What’s happened is that I’ve had to become more selective — and my firm’s had to become more selective — about the cases that we take. And in a sense we’ve allowed enough clients to come to through the front door to keep the lights on and allow us a comfortable life and allowed us the freedom to be more selective. I would never want to have so many cases that I can’t give any particular client the treatment that they deserve, so I am always going to keep my case load to a certain controllable level. And if things continue along the track that they have been, the type of cases and the quality of the cases will continue to increase.

In terms of the future what do you see in the next five years?

Well, for one thing, I see the advent of our online presence increasing. Just in terms of a resource for clients and a resource for the attorneys and my firm. What I would like to see happen is to have a website or several websites be implemented (as one or two already have) that are an active resource for both existing and new clients, as well as the public at large, and one that I can interface with the clients on a direct basis as well. My website makes communication easier and more effective with existing clients with regard to their claim and even tons of other people. Ultimately, it’s my strong belief that a happy client is one that’s going to refer me and my firm out to friends and family and neighbors or somebody who asks for a referral. So it’s my goal to keep my existing clients happy and offer them services like an online portal. And that’s in development now.

How to Find a Good Personal Injury Attorney (Part 1)

So, you’ve been involved in an accident and (this time) it wasn’t your fault.   You’ve filed an incident report, collected insurance and witness information, and taken photos.  Most importantly, you have gone to the E.R. and followed up with your own doctor.  All things being equal, you’ve done well.  You should be proud of yourself for being clear headed and effective during the crucial “first 48” hours after this traumatic event. 

In fact, the battle has just begun… right away, you begin to get calls from an insurance adjuster who wants to take a recorded statement and get you to sign a stack of medical releases authorizing the insurance company to get all your medical records.  The adjuster makes promises about how he/she will make sure you are “taken care of,” all the while demanding more and more documentation and compliance from you.  You are hurt and should be able to recover, yet it seems that you are working harder than ever just to dig out from this hole. 

Unfortunately, it looks like you have been pretty seriously hurt.  Truth be told, your doctor says you are going to be off work for a while.  Without your usual income, disability is simply not going to cover what you need every month.  What’s more, your health insurance is requiring a significant amount of money out of your pocket for treatments such as Physical Therapy, x-rays, MRI, CT, and prescription medications.

Will an insurance company ever tell an injured person that they are entitled to recover past lost earnings, as well as future lost earnings?  Of course not.  Will an insurance company ever tell an injured person that they are entitled to recover the cost of future medical care, such as therapy, prescription drugs, hardware, or even surgery?  Of course not.

Nevertheless, in an attempt to put this stressful ordeal behind them, an injured person may be tempted to settle with insurance company for a dollar amount that represents only a small fraction of the damage actually suffered.  In fact, most injured people give up the majority of their potential recovery without even knowing it.

For example, a small business owner who is seriously injured cannot just take the month off.  When the buck stops with you, there are no “sick days.”  However, if you are physically unable to work as a result of injury, there can be dire consequences.  You’ve lost your livelihood and you are entitled to recover your past and future lost earnings!

Similarly, if you need to undergo surgery, there is no guarantee that your recovery will go smoothly.  If you recover well, great!  If not, it is important to understand the effect on the rest of your life.  If an injured person accepts the first offer from an insurance company, recovery based on future medical treatment is “out the window.”  The future is uncertain enough as it is.   By taking the insurance company’s first offer, an injured person is only making that future more uncertain.

If you continue to suffer from injury-related symptoms, and a doctor says there is nothing more he/she can do to help, you also must consider the reality that your life has been permanently and irrevocably changed – and not for the better.  How much should the wrongdoer pay you for each day of pain, suffering, and lack of mobility?  Would payment of medical bills alone really make things right?  For any person who has truly experienced the daily trauma of a serious injury, the answer is unequivocally – NO.

However, an insurance adjuster will never advise you of these issues.  Only an experienced attorney who practices in the field of serious injury can properly advise you of these issues.  Believe it or not, the areas of law governing your rights to recovery are actually quite complex.  Without professional guidance, an injured person will almost certainly be overwhelmed.

It is important to understand that an adjuster’s job is to save the insurance company money – period.  Many years of training and millions of dollars have gone into forming a well-oiled machine for the purpose of saving the insurance company money.   The adjuster is simply playing out his/her role as a cog in that machine.

How does an insurance company makemoney?  By paying less to you in claims… then taking all the money it didn’t pay you for your injury and re-investing it for their own profit.  Recently, it has become clear that much of that money was funneled into funding high risk or toxic loans (read AIG).  Now that’s some good use of your money!

Don’t stand by and watch that happen.  If you’ve been hurt by someone else’s wrongdoing, that person or his/her insurance company needs to make things right.  Since we know that this does not always happen in the real world, it is important to protect your future and the future of your family.  One way you can do that is to immediately seek counsel from an experienced attorney.

In the next installment, we will discuss important (but little known) factors that an injured person should ALWAYS investigate before hiring an injury attorney.  Stay tuned.

For more information, visit www.orangecountyinjury.com.

Calling On Behalf Of Others

Can I call an attorney on behalf of another person?

Here’s a hypothetical scenario: let’s say you’re with your mom and you’re driving to the airport and get in a car accident. You are okay but she’s hurt and a little skittish about hiring an attorney and doesn’t want to really go down that road. Can you still call on her behalf and hire an attorney to represent us both?

You can always call on somebody else’s behalf to get the attorney’s feedback and see if it sounds like a case that would be worth getting an attorney for that. I think there are a variety of reasons why somebody may not want to get an attorney even though they are injured and even though they may experience some problems with the insurance company or whoever the wrongdoer was who caused the difficulty for them to begin with. A lot of those questions also can be answered by an attorney to either clarify the situation, clear up any confusion they may have, point them to the right direction of what medical care to get, what to do, what not to do — whether they decide to actually retain the attorney at the end of the day is really their own choice. But you can absolutely call on somebody else’s behalf.

To get clarification about your specific situation, call me right now at (714) 851-2890.

Evidence Collection and Calling an Attorney after a Car Accident

What if you are the one at fault in a car accident, should you still collect evidence or merely hope that the other side doesn’t get proactive in that regard and take your chances?

Frankly, I would never suggest that anybody fail to collect evidence, because they think that evidence might not be in their favor.  That’s a decision that an individual has to make, but I would always encourage somebody to collect as much evidence as possible so that the truth comes out.  I’m not interested in suppressing the truth of what happened.  The more evidence that there is, the more truth is going to be ascertained.  A lack of evidence leads to conjecture and speculation.  And that leads to a suppression of truth.  So, I would never suggest that anybody not collect evidence just because they think that it’s not going to work in their favor.

How soon after you are involved in an accident  do you need to call an attorney?  Do you need to call  on a Sunday or even a holiday?

My short answer is — ASAP — as soon as possible.  If you’ve gotten the police report and you’ve gotten medical treatment and it appears that the situation has stabilized, calling an attorney is a good next step.  I would say, though, that the first thing that you should be concerned about — and your primary concern throughout the entire process — is taking care of your own physical wellbeing and the physical wellbeing of your friends and family that might have also been involved.  Because that, ultimately, is what’s going to affect you the rest of your life.  An attorney’s involvement is very helpful in giving you advice and direction and what to do and what not to do, but ultimately — without your health, what do you have?

Problem-Reaction-Solution: An Economic Stimulus Package

I can’t help but be amused by the meteoric rise of imminent world doom sentiment that is so prevalent these days.  Our very own president, Obamessiah, describes our national economy in terms that make Black Friday sound like Scout-a-rama.  While I must confess that I too believe that our national finances have been and continue to be sorely mismanaged, I can’t help but think that there may be more going on here than meets the eye. 

Check out this article for some background: http://www.cato.org/pub_display.php?pub_id=9950. 

Are nearly $900 Billion dollars printed literally out of thin air going to do a single thing to help the typical American citizen?  Are we the people better off in any way by the Messiariffic move to dramatically increase our debt to the Federal Reserve?  The answer is unequivocally NO.  Moreover, I believe that the severity of our current “financial crisis” is being vastly overplayed by those who desire to use the perception of a catastrophe to advance a variety of nation and world changing agendas.

Selling the perception of imminent doom (read “financial catastrophe”) gives leverage to the one who offers a solution. This has been the political game played since time immemorial, and it’s being played BIG TIME right now. The Cato Institute article makes a very good point. It seems to me that the unprecedented economic “stimulus” being proposed is vastly disproportionate to the actual state of the economy. The current administration continues to use the “Problem-Reaction-Solution” formula to fool the American people into supporting otherwise distasteful legislation. Obama’s administration wants to enact some MAJOR changes in fiscal, monetary, and social policy. The best way to do this is to create a crisis (or at least the perception of one). And they’re doing a pretty good job.

Yeah, “those were the days” (September, 2008) when Hank Paulson was foisting the same end of the world propaganda on the unwitting public. What was the result of that adventure? Further consolidation of wealth in the hands of even fewer people. The few well positioned financial institutions (Morgan, B of A) got a GREAT bargain and the Fed even helped to broker the deal. Then the U.S. Treasury got real generous by buying up “troubled assets” and purchasing preferred stock at a DEEP discount. How is this not raping and pilaging of the American people? Oh, wait… I’m starting to sound like that wacko Ron Paul.

But seriously, it is important for each of us to keep our heads in this potentially inflammatory time in which we live.  Keep your eye on the ball… the real ball, not the one that the national media wants you to follow.  Most importantly, always remember that we are human beings, endowed by our creator with certain inalienable rights.  We are not and never shall be mere units of capital in need of a “bailout.”

Do You Know What To Do Immediately Following A Car Accident?

People First
Specific to a car accident, regarding evidence collection, there are some guidelines for what you should immediately do.  Most of the cases that come my way are cases in which ambulances are called to the scene — the people that have been involved in the accident aren’t just walking around collecting evidence.  So they’re probably too woozy to know what to do. 

First and foremost, take care of yourself and the other people. Once everybody’s safety has been assured or taken care of, then call 911 immediately.  And the two might be intertwined, of course — call 911 because somebody’s hurt.  Either way, you want to call 911 directly after attendance and above all else, request your report specifically.  Now, if you’re not mobile and you’ve been so significantly injured that you can’t get up or you’re not conscious, or whatever the case might be, then take care of yourself first and foremost.

Photos Second
The best thing that you can do at the scene of a car accident to prove your ability to collect evidence at the time  is have a little portable, disposable camera in your glove compartment.  Put it in your car, put it in your wife or your husband’s car, put it in your kid’s car. 

Call Me, I’ll Give You A Free Camera Today!
My firm actually has portable, disposable cameras with our name and address and number and a list of things that you should do at the time of an accident.  But in light of the fact that not everybody here is going to have access to that, my first bit of advice would be to go out and get one for yourself and put it in every car, have it ready to take photographs.

If you are mobile, you’d also want to take photographs, of course, of the property damage to both cars.  Any cuts, scrapes, bruises, everything of that nature.  If it appeared that — for example — if the air bags went off, you want to take pictures of the air bags.  If the air bags didn’t go off, and they should have, you should take pictures of the lack of air bag deployment. 

The other thing you should take a photograph of — again, this is why the camera’s so important — is the accident.  The debris from the accident around the scene.  Now, obviously if it happens on the freeway or something like that, you can’t get out on the freeway and take photographs of it.  But if you’re in a reasonably low-traffic area, try and get as close to the debris as you can.  If you can’t, just take photographs of the scene area.  If it’s at an intersection, it looks like there might be some dispute as to who is at fault — take as many photos as you can of the debris so it will show where the impact’s location actually was.

And always, always, always call 911, report the accident, tell them — if they ask you if you’re injured and you’re injured, tell them that you’re injured.  Do not hold back that information.  If you don’t know if you’re injured, if you feel kind of like you’re in shock, you’re not sure — let them know “You know what, I might be injured, I don’t know.  Please send somebody now, because we need assistance.”  A police report and the lack of a police report is the number one reason that an injury claim may languish in the claims process and in the court system for years.  Because there is a lack of third-party or objective witness evidence of who was at fault and what the injuries were.

What About Using My Camera Phone?
Camera phones are okay.  However, the only problem with camera phones sometimes is the level of quality that you get from them, and the fact that sometimes  the uploadable format is  problematic from your phone to the attorney’s computer. An analog photo from a portable camera still in most cases is better quality and is going to capture the evidence better than a camera phone.  But if you’ve got a camera phone and that’s all you got, absolutely.  Take as many photos as you can.  So, first and foremost, do that now — before the accident — so you’re prepared.  At the time of the accident, all the things you typically hear that you should do, you should do. 

A Partial List Of Things To Remember Once You Pull Over

• Get all the information on the individual
• Proof of insurance
• Person’s full name
• Person’s full address
• Car registration
• Information of the car
• License plate as well as the driver’s license number of the driver
• Make a note of how many people were in the other car, if any
• Get the names of everybody else who was in the car, because they’re potential witnesses 
• Identify whatever witnesses outside of the parties that were involved in the accident 

Final Words Of Advice
Above all else, make sure to get a police report.

Is Arbitration Ever An Option?

Arbitration is almost always an option.  The questions arises, is it the best option?  That in some cases, it is absolutely the best option.  And I think it’s important to clarify the difference between different types of arbitration. 

Non-binding Arbitration
Non-binding arbitration is a dispute resolution process that many times the court orders you to go through in order to see if you can’t resolve the case short of trial.  Because it’s non-binding, when an award is issued by an arbitrator in a non-binding arbitration, it has no legal affect on the parties whatsoever. 

Binding Arbitration
The second kind of arbitration is a binding arbitration, in which either the parties agree that the arbitrator’s award is going to be the final number and the final verdict amount.  In that case then, it very well might be a good option, because arbitration’s a cheaper, faster, and in some cases more fair way of getting the facts into the hands of a finder of fact, and to have an award issued. 

In Conclusion
The short answer is  arbitration is almost always an option, and in some cases it is the best option.

Why Is Going To Trial So Expensive?

I get asked this question routinely:

“Why is going to trial so much more expensive than other aspects of a case?” 

And that’s a really good question, because that’s sometimes a misunderstood aspect of litigation. 

The Proverbial Ducks In A Row
In order to go to trial — you have to have all your ducks in a row — you have to present the evidence in favor of the plaintiff.  The plaintiff has the burden of proof to prove his or her case.  In order to do that, many times you have to hire expert witnesses to provide qualified testimony about the nature and extent of the injuries.  You have to spend money to prepare detailed exhibits.  Sometimes they’re electronic exhibits.  Sometimes the  exhibits you’re presenting, require a great deal of expert involvement.  Sometimes just in order to prepare the exhibits for a jury’s review, you have to spend thousands of dollars just to have an expert review the data underlying those exhibits and approve the exhibit itself. 

Going To Trial Is Expensive But Sometimes Necessary
Unfortunately, that’s the reality that we live in, and the insurance companies know that and they know that in many cases plaintiffs will settle short of trial because they don’t want to spend those costs.  And they also know that in some cases, some attorneys will they themselves accept less than fair value for a case in order to avoid going to trial.  That’s not my policy and that’s not something I would ever recommend on behalf of a client of mine, because I believe that the preservation of the  jury-trial system is fundamental to our rights as an American democracy or Republican system, however you want to define it.

What Percentage Of Cases Go To Trial?

Ten percent or less.  That’s a national and California state average. The fact is that the vast minority of cases end up in trial.  And that’s a good thing for everybody. Because my clients know once they have to go through trial, that the amount of cost that I spend is going to reduce the amount that they’re going to get in their pocket.  So many times my clients authorize me to settle my case short of trial, just because they know that they’re going to be better off by settling short of trial.  In some cases, though, the only way you can get justice is by taking it to trial.