A case like this is hardly a jackpot. That said, of course a lawyer is only going to accept a contingency fee case if he’s pretty sure he’ll get something out of it. It would not make any sense to do otherwise.
IANAL but it seems to me that by not even fighting the citation, the OP has in effect said, “Yep, her version was true.” To which the victim has got to say “Cha-Ching.”
I would have at least subpoenaed the victim and gotten a diagram to ask why she walked in front of the car and present any evidence she was actually hit - picture of a bruise leg, witnesses on her behalf, etc. By not defending that, you are definately opening yourself up for a civil suit. You didn’t say in the OP but I’m assuming you admitted to the cops you weren’t looking so I think that given you passivity in addressing this as a legal issue you screwed yourself over.
And by the way, how do you know you didn’t hit her? I was once crossing legally at a crosswalk and a truck was turning right on red looking left. He started to pull forward and hit me. Not enough to cause any injury since he was pulling from a stop. He looked when I hit/pushed off his hood (thank god for catlike reflexes) so I’m sure to him it looked like he ALMOST hit me but rest assured his front end made contact with my ribs.
I agree with the part about defending the traffic citation, but the defense strategy is over-the-top and could even be counter-productive.
In all likelihood, if they had shown up in court, it would have been dismissed. The ticketing officer can’t testify as to what happened since they didn’t see anything and the alleged victim probably wasn’t going to show up. I don’t think any state compels witnesses for a routine traffic case. Worst case, if you show up and the victim is there, you ask for a continuance.
In fact, you don’t want to subpoena the witness, you want to make sure the witness doesn’t show up. Unless she was also charged with something, there is a 90% probability she won’t show up. In a criminal case, you should be narrowly focused on your lone goal which is to be found not guilty (or have the charges dismissed), not to embarrass your accuser.
But, yeah, the OP was found guilty of careless driving. If any civil proceeding comes of this, the court will make the assumption that they were driving carelessly and move on from there.
WTH? Really? You hit, or nearly hit, a woman because you were not looking where you were going and you don’t know if or how she has been hurt (psychological harm is damages you cannot see) and you have frothed yourself up in indignant fury, assigning yourself the role as victim here? And you deride a lawyer for following the law?
Grow up.
[LyQUOTE=Saint Cad;16489767]IANAL but it seems to me that by not even fighting the citation, the OP has in effect said, “Yep, her version was true.” To which the victim has got to say “Cha-Ching.”
I would have at least subpoenaed the victim and gotten a diagram to ask why she walked in front of the car and present any evidence she was actually hit - picture of a bruise leg, witnesses on her behalf, etc. By not defending that, you are definately opening yourself up for a civil suit. You didn’t say in the OP but I’m assuming you admitted to the cops you weren’t looking so I think that given you passivity in addressing this as a legal issue you screwed yourself over.
And by the way, how do you know you didn’t hit her? I was once crossing legally at a crosswalk and a truck was turning right on red looking left. He started to pull forward and hit me. Not enough to cause any injury since he was pulling from a stop. He looked when I hit/pushed off his hood (thank god for catlike reflexes) so I’m sure to him it looked like he ALMOST hit me but rest assured his front end made contact with my ribs.
[/QUOTE]
I agree; I did screw myself over. I did what I thought was the right thing at the time. Lesson learned.
And I do not know for sure that I didn’t hit her. It could be exactly as you described. I believe that it is highly unlikely, because she changed her story, had no scuff marks or signs of injury, and because I didn’t feel an impact except the sound of her hand slapping my hood. In fact, even moreso than her changed story, that was why I felt certain that I didn’t hit her. Given what you’ve said, a degree of certainty has decreased a notch or two.
If I knew for certain that I did hit her, even if it was just a bumper kiss and even if she suffered no injury at all, I would feel better about the outcome. Sorry that I had hit her, end of story. As it stands, I feel that I probably allowed myself to be scammed. Handed her my checkbook and a pen. I don’t like feeling that way. I would RATHER feel remorseful for causing someone to have a shitty day, and relieved that an oversight on my part didn’t end in serious injury.
Doesn’t escape my attention that another lawyer has entered chambers, and focused on a technicality (I’m playing the victim and frothing about in an indignant fury) to draw focus away from how utterly outrageous it is that a bruised leg (if that) can be exploited into a few thousand dollars in “pain and suffering.”
I am not the victim here, in any sense of the word. I am not even out any money; my insurance company will handle it. The real victims are other Americans. Someone has to pay the bills for frivolous lawsuits and outright scams, and it’s not insurance companies or any other large corporatiins in the business of making profits. We all collectively pay with higher premiums and deductibles. I don’t see THAT as “following the law” so much as I view it as “exploiting loopholes in a flawed system.”
That’s why I always make sure pedestrians are dead when I hit 'em.
But you don’t KNOW she has only a bruised leg and you don’t KNOW it’s an exploitation. You have just gone straight to “she’s a fraud” with absolutely no proof and very little information. AND you criticize lawyers for being lawyers. A technicality? You were not watching where you were going!
No, you are NOT the victim here, not in any sense of the word, but you sure don’t think the woman you may have hit is either. Get over yourself – at least until you know for sure what’s going on. If you hit her, or even just scared her, and she incurred expenses from it, you (your insurance company) are liable.
Just take a breath.
" She said, to me, “You almost hit me! I can’t believe you almost hit me!”
Since we have a lawyer already in the thread:
What’s the potential liability for “almost” hitting somebody and eliciting a defensive reaction (jumping/twisting away, etc) that causes an injury? The same as actually hitting the person?
You are really doing a fantastic job of proving the OP’s point.
I mean, what does it even matter if there was actual damage, if the scammer can prove you were negligent then you were negligent and you have to give her money, doesn’t matter in the slightest that no harm was done!
You seem to be perfectly happy that frivolous lawsuits are the norm in your culture, but what a nasty culture it really is.
Not a lawyer, but I’ll answer it, as long as the direct/proximate causation of the injury was due to a breach of duty/negligence by another, it is actionable.
Sidenote, as far as frivolous lawsuits go, there are many more of much more frivolity.
The OP really means fraudulent, not frivolous, right?
Out of curiosity, if the odds were less than 50/50 that such a case would be settled, would you still jump at them? If yes, is there a lower threshold at which you pass on the case?
Like when she slapped the hood with her hand to make a loud noise?
Could have been and no doubt reflexive as a “shield”.
And out of curiosity, if it turns out that this woman has had “accidents” of this type in the past and has sued successfully, due you hesitate because of the fraud possibility…or do you grab the case because she is obviously good at pulling it off and it looks like easy money?
Generally to prove a case for negligence, you have to prove the following:
(1) the existence of a legal duty of the defendant to the plaintiff; (2) a breach of that duty; (3) harm or injury to the plaintiff and (4) proximate causation of that harm or injury by the defendant’s breach. . Tallev v. Danek Medical. Inc., 179 F.3d 154 (4th Cir. 1999) (citing Locke v. Johns-Manville Corp., 221 Va. 951, 275 S.E.2d 900, 904 (1981)).*
You do have to prove damages in order to recover for negligence. If I’m negligent, but you aren’t injured, then you don’t have a case. I don’t do personal injury, but in Virginia, the Plaintiff might be out of luck if she wasn’t crossing where she was supposed to**.
Also in most states, you need to have a good faith basis to bring a lawsuit. The law disfavors frivolous lawsuits, and you can be sanctioned if you bring a lawsuit that the court finds to be frivolous.
What Oakminster is saying, is that if a potential client walks into his office with a case where the driver was found guilty of careless driving, and had damages which are attributable to the the accident, then yes, he would take the case, because he can plead all the required elements of the case, and he has a pretty good shot at recovery.
*, I’m citing Virginia law because it’s what I know, and because I can access it fairly easily. Virginia tends to follow the common law so for purposes of discussion, the elements in most states will be the same.
** Virginia is a contributory negligence state. If you are even slightly at fault, you are barred from recovering.
Accepting a contingency fee case is a fairly complex analysis. First I look at liability and insurance/assets. Then I consider provable damages, whether the plaintiff is sympathetic, whether the plaintiff has realistic expectations, whether the statute of limitations is about to expire, availability of witnesses, my current caseload, etc. Truth be told, I probably turn down more cases than I accept, generally because one or more of those factors is unfavorable.
What if she injured herself pushing off the hood in order to avoid having her legs/body hit? Either way, you wouldn’t necessarily feel someone hitting your car. I wasn’t there, so I have no idea what happened, but it seems a bit unfair to definitively call her a scam artist based solely on her statements at the scene given they could still be consistent with injury.
Regardless, this is why people have insurance. They will investigate, and I am sure they will look at the medical records, and this woman’s history, to see if her claim has merit.