Dude, you are pissing into an ocean of ignorance. How’s that working out?
True, that.
What’s that got to do with blaming the kids?
(my bolding)
OK, my ignorance has been fought on this one. Still stupid of the legal reps though…as runner pat mentioned, the PR fallout (attributing some degree of negligence to the kids) is going to be massive.
Just to satisfy my curiosity, what sort of insurance would the defendant have in this situation? Would it be covered through his motor-vehicle comprehensive insurance, or some sort of personal liability insurance?
Not really. This is a car wreck case like thousands of others. It might get a couple of mentions in the news, but it will eventually go away. A 90 year old lawyer probably isn’t concerned with PR issues, anyway.
The driver likely has personal injury and property damage coverage on his vehicle, and may also have an umbrella policy that would cover personal liability beyond the limits of his other coverage up to the limits of that policy. If the damages awarded exceed his available coverage, he’s personally liable for the remainder, but may or may not have non-exempt and/or unemcumbered assets available to satisfy a judgment.
I’m not really certain why I posted this.
After that thread about the elderly Koreans and the problem with them staying at a McDonalds for many hours every day, I wanted to see how people would feel about this older man driving and causing such a tragedy.
Perhaps I should have posted this in The Pit. If anyone has any opinions on that, please feel free to let me know and next time I’ll try to post it in the most appropriate place.
Thank you.
That really doesn’t come across in your OP. If that was your purpose, the the details about his legal position are wholly irrelevant, and pretty much guaranteed to hijack the thread from the start. For that matter, the fact that the driver happens to be a lawyer is utterly irrelevant to the issue you wanted to discuss. The problem is not your choice of forum, but your wording of the OP in a way that has little if anything to do with your actual point.
I don’t think you’ll find any disagreement that as a person ages, it is more likely that their ‘faculties’ diminish to a greater or lesser extent. However, I have known some 80yr olds who are perfectly capable of being behind a wheel. I have also known some 20yr olds who should never have received a license.
I believe it is incumbent upon families (or any other close person) to mention to the older person’s doctor that they might have some concerns. If that person is involved in an accident (or near miss), I also believe they should undergo testing (sight, hearing, reflexes etc) to retain their license.
In Australia, ‘provisional’ licenses are often issued to elderly folk with issues. These licenses come with limits like only driving during daylight hours, or only within a 5 or 10km radius of home. It allows them to retain some degree of independence, whilst minimizing the risk of serious accidents.
Should regular testing be compulsory after a certain age? Perhaps. But it could also be said that EVERYONE should undergo retesting. I’m sure my reflexes aren’t as sharp as they were when I was 20…should I be denied a license? By what benchmark are we going to measure driving competence?
From the linked article:
While the first part is pure bullshit, it is the second part part that really makes me go WTF?: “failed to reasonably mitigate any damages…”
Are you fucking kidding me? again from the article:
The kids went to the hospital, one of them spent 5 weeks there with multiple surgeries. What would the lawyer that wrote this crap suggest they do with the kids? I think this lawyer needs to look up the meaning of the word mitigate.
I swear if I were the judge or on the jury on this case and these arguments came up I would be forced to say: Really counselor? This is the best you can do? All those years of law school, and this is the best you can do? Weak, very weak.
Aren’t you one of the car experts here? If I came into a thread where you were telling somebody how to fix their car, and started spouting off about how everything you were saying was wrong, stupid, and otherwise outrageous, while also opining that the obvious solution to the car problem was to reconfigure the deflector dish so as to route the flux capacitor to the manifold cylinder, wouldn’t you:
- get a little annoyed; and
- decide I obviously do not have a fucking clue about the subject at hand?
What lesson could you draw from that little analogy that might apply to this thread?
It’s truly sad that our legal system tells competent lawyers it’s better to raise points they know - and know that the court will know - are utterly fanciful & brainless than to keep quiet.
From a defense point of view, your client gets served with a summons and complaint. You’ve got a short time to answer…in my state, it’s 30 days from the date of service. You don’t know everything about the case at this point. You aren’t going to know everything about the case until you’ve completed discovery…which may include written questions, admissions, investigations, accident reconstruction, medical records, witness interviews, depositions, expert witnesses, etc and will take months to accomplish.
If you fail to answer, a default judgment can and probably will be entered against your client. The client will probably first report being served to his insurance company. The insurance company will then hire a lawyer and pass along the paperwork, which takes time–time that comes out of those 30 days. So the paperwork lands on the lawyer’s desk. The lawyer has to sit down with the client to hear that side of the case, maybe review a police report and anything the insurance company has obtained, and file a formal response before he really has enough information to know what all the issues are going to be.
As such, the lawyer then files an answer, pleading every possible defense to the allegations in the complaint. Failing to plead a potential defense waives it. So you plead comparative negligence, failure to mitigate, assumption of the risk, and everything else you can at this stage of litigation. The discovery process will allow you to narrow the issues later in the process.
We have an adversarial system. Each side is represented by lawyers using all of their knowledge and skill to protect their client’s interests. Assuming both sides do a good job, and the clients are reasonable people, most cases will reach a negotiated settlement before trial. It’s a damn fine system, and leads to reasonably just results most of the time.
It’s also a complicated system, and laymen are not going to understand all the nuances involved. That’s why laymen don’t get to practice law.
Well, he might’ve had baby boom children. So they’re at least indirectly responsible.
Being old and driving an SUV is bad enough. Plus, I hear he’s fat. :eek:
So, Oakminster, what I think you’re saying (but if so, how about just saying it) is that the silly-ass defense mentioned is really just a temporary “place-holder”, just a legal formality, to be filled in later with some actual sensible defense (if any can be developed) once there as been some discovery, or facts otherwise become known. Is that about how it works?
Okay, Oakminster, so I see your Post #33 which I suppose kinda tells us, in some detail, what I just suggested you tell us.
Well first off I have kNOw-it-alls tell me I am wrong in auto threads all the time. Want some cites? 
I’m used to it. I usually respond by handing them their ass with facts.
Secondly I understand that the lawyer has to claim everything under the sun in their response to the summons and complaint.
But and this is a huge but, you didn’t read what I wrote.
Re-read the bolded part
As you yourself said:
Unless the discovery process works way different in your state, it is not done in front of either a judge or a jury. Around here you only get a judge and jury at trial.
If the defendant’s lawyer were to bring up failure to mitigate in trial, unless they could show that the kids were forced to walk to the hospital, I would think the collective response in the courtroom would be :dubious: :eek:
How about if the plaintiffs were offered some form of fairly standard medical treatment that could reduce future medical costs, and refused to accept it? At the pleading stage, you may not know about it, but it could possibly be reasonably argued as a failure to mitigate at trial.
Yes that could, but based on my experiences as a juror I am very jaded about expert witnesses.
I am firmly convinced that you could produce an expert witness with impeccable credentials that will be happy to testify that tomorrow the sun will come up in the west.
Of course, if the twins had been babies, rather than school age, the accident would itself have been a baby boom.
Here all week, try the veal, etc., etc.