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Jamie Smith
What Lawyers Don’t Advertise on TV
We have all seen them: flashy TV commercials pageanting personal injury attorneys and the high-figure settlements their client received after being injured in an automobile accident. Whether they focus on the attorney’s heroic feats, client testimonials, or endorsements by B-List celebrities, these advertisements almost always share a common denominator–they are visually distracting. Next time you tune in to your local network, pay careful attention to these commercials and you’ll see that they are always moving. Background reenactments, slideshows of mangled vehicles, and numbers and words zooming on and off of the screen are just a few of the ways these broadcasts keep your eyes busy. And while gaudy commercials are effective marketing tools for law firms–many of us know the names and numbers of these attorneys by heart–they may be effective for troubling reasons.
South Carolina’s Rules of Professional Conduct require attorneys who choose to broadcast their settlement figures must “clearly and conspicuously” disclaim that the results a lawyer or law firm achieve on behalf of one client does not necessarily indicate that similar results can be obtained for other clients. But thinking back over the braggadocios clips reminding you of who to call when you’re in a crash and need your cash, do you remember ever seeing this disclaimer? Probably not. If you watch very carefully, the disclaimers are there–they are just easily overlooked when your mind and eyes are dazzled by the perpetual motion in the ads. Unfortunately, the resulting effect can mislead viewers into thinking that all car accident victims will be entitled to five, six, and seven figure verdicts when, in reality, that is simply not the case.
The intent of this article is not to discount the credibility or success of law firms with animated commercials–the attorneys that fit the bill in my mind are all well-qualified to handle a personal injury claim successfully. Instead, what I hope to accomplish is to inform readers as to why settlement and verdict results vary significantly in personal injury claims, and why you most likely will not walk away from a fender-bender with a windfall. In realistically assessing the value of a personal injury case, there are many factors that come into consideration when assessing the value of a personal injury claim:
1. The Nature and Severity of the Injury. Often, victims of car accidents sustain what are referred to as “soft tissue” injuries, and these injuries are usually impermanent and undetected by CT scans, X-Rays and MRIs. In most cases of soft tissue injury, subject of course to other variables, including those described below, settlements or verdicts will generally cover the victim’s medical bills plus some additional money for pain and suffering. After paying medical providers and attorney fees, it is often the case that drivers who sustain soft tissue injuries will not take home a huge pot of money after resolving a claim.
So how, then, do attorneys achieve the six-figure resolutions advertised on TV? The reality is that, in most cases, the accidents resulting in these settlement amounts also result in permanent injury, catastrophic injury, or fatality to those involved in the accident. These victims may have to endure joint replacements, spinal or plastic surgery, broken bones, chronic pain, bodily disfigurement, and/or permanent impairment of the body. Clients receiving these offers usually will need future medical care, and the money is intended for that purpose; some receive the money in a futile effort to make them “whole” after the loss of a child, spouse, or loved one. Thus, while it is possible to earn significant settlements and verdicts for clients involved in an automobile accident, these results are unlikely absent devastating circumstances and, in those cases, no amount of money truly will restore the victim from the injuries they’ve sustained.
2. Insurance Coverage. A second probable determinant of what a settlement offer may be is the amount of insurance coverage available. Say you have $100,000.00 in medical bills from an automobile accident, and the at-fault driver carried $25,000.00 in coverage. Unless you carry underinsured motorist insurance, there is only $25,000.00 available to you. Can you sue the driver for additional money? Sure. However, most individuals do not have the assets to pay any additional monies, and so it is rare that an at-fault driver is sued for funds in excess of the insurance policy limits. Even if the court issues a judgement against that driver, there is only a slim chance of that judgment being satisfied; in other words, one could spend a lot of money on litigation that results in essentially a worthless piece of paper. On the other hand, if a victim has significant injuries and there is substantial insurance money available, that individual may be able to recover one of the large verdicts like those advertised on television.
3. Visible Property Damage. Though it is not necessarily a reliable way of measuring a person’s injuries, insurance companies and juries will often look at the property damage a vehicle sustained in a collision to determine whether the impact caused by the at-fault driver was sufficient enough to cause the injuries claimed. This is a theory that Plaintiffs’ attorneys fight hard to debunk, but currently it is the case that factfinders generally tend to correlate visible property damage to bodily injury. Thus, if there is very little visible property damage to a vehicle after an accident, the victim may have a long battle ahead to establish that the accident caused bodily injury.
4. Preexisting Conditions and Gaps in Treatment. Like property damage, juries and insurance adjusters may try to dispute that a victim experienced bodily injury from an accident if they experienced similar symptoms prior to or at the time of the accident, or if the victim did not receive treatment for a significant period of time after the accident. Plaintiffs’ attorneys advocate against these notions, but ultimately, proving causation is far more difficult in cases where a client has a preexisting condition aggravated by the accident, or where a client has not received medical treatment for his or her injuries for a period about two weeks or more after being in a motor vehicle accident. Thus, cases in this category often see lower settlement offers and are more likely to wind up in litigation or trial.
5. Where the Accident Happened. Perhaps one of the most surprising factors that insurance adjusters consider when making an offer is location. In a lawsuit involving a motor vehicle accident, the suit may only be filed in the county where the accident occurred or where the at-fault driver lives. Attorneys and adjusters know that a Plaintiff may obtain a great verdict in certain counties and a meager verdict in others. This is determined based on whether the county’s residents–and thus its jury pool–are primarily conservative or liberal. The more conservative a county is, the lower your settlement offer or verdict will probably be.
6. Who Caused the Accident. The party at fault in a motor vehicle accident may have some bearing over what a settlement offer or jury verdict may look like. Drivers hit by a tractor trailer often receive a higher payment than they would if they sustained the same injuries in an accident with a non-commercial driver. This is attributable to the fear that potential jurors have of tractor-trailers, and the extensive rules that apply to these drivers. Or, if a victim is hit by a drunk driver, he or she may potentially be awarded punitive damages which are not meant to make the injured party whole, but to make an example of the consequences of driving under the influence. In that instance, a person with only minor injuries may be awarded a significant sum of money like the settlements flashing across your television screen.
So, what’s the verdict? The answer is that the settlement figures boasted in attorneys’ television advertisements are, most likely, not reflective of what the victim of a typical motor vehicle accident should actually expect to receive. A surprising weight is given to factors that have nothing to do with the injuries sustained in an accident when calculating what a “fair” offer should look like, and the cases that land a spot in prime time television most likely involved a number of the factors above leaning in the victim’s favor.
The system is not necessarily a fair one for Plaintiffs, and it is important to understand why when you’ve been in a motor vehicle accident–especially when advertisements paint an unrealistic image of what to expect when you’re in an accident. Knowledge can help victims better navigate the system, understand when an insurance company is not extending a fair offer, and eventually create a system that is more just. That said, if you or someone you know has been in a car accident, the Mike Kelly Law Group encourages you to contact an attorney with questions about these factors, and others, weighing into insurance companies’ decision-making when extending settlement offers.
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Lisa Long Cotten
October is National Bullying Prevention Awareness Month, and on October 12, 2017, the Blythewood Middle School (BMS) Parent Teacher Organization kicked off a program called Rachel’s Challenge with a community event that included a silent auction, video game truck, food trucks and raffles. Rachel’s Challenge is based on the life and writings of Rachel Joy Scott, who was the first victim of the Columbine school shootings in 1999. The goal of Rachel’s Challengeis “to have all schools free from harassment, bullying and violence so teachers are free to teach and students are awakened to learn.” Rachel’s Challenge encourages individuals to replace acts of violence, bullying, and negativity with acts of respect, kindness, and compassion through presentations, training, community events and professional development. A component of the program at BMS is the formation of a new leadership in kindness club called Friends of Rachel. Friends of Rachel are ‘kindness ambassadors’ who participate in projects to support building a culture of kindness and empathy at the school. I was so inspired by the initiative that I began to explore other ways school districts are dealing with the issue of bullying.
Bullying is defined by Merriam-Webster’s dictionary as “abuse and mistreatment of someone vulnerable by someone stronger, more powerful, etc.” Bullying has likely existed in some form since the beginning of human civilization and continues to plague our schools, playgrounds, and workplaces (children who bully grow up to become adults who bully). The surge of cyberbullying, the electronic posting of mean-spirited messages about a person, has further complicated the problem as it is more difficult to identify perpetrators because such posts are often done anonymously. Bullying may escalate problems such as absenteeism, school violence, and disciplinary issues. Extreme cases of bullying have contributed to suicides and/or homicides. It is likely that such extreme outcomes are the result of underlying mental illness; however, it would be naïve to ignore the role of bullying in pushing one towards harming themselves or others.
The South Carolina Legislature has enacted the Safe School Climate Act. S.C. Code of Laws Ann. § 59-63-110, et. seq. The Act defines harassment, intimidation or bullying as “a gesture, an electronic communication, or a written, verbal, physical, or sexual act that is reasonably perceived to have the effect of: (a) harming a student physically or emotionally or damaging at student’s property, or placing a student in reasonable fear of personal harm or property damage or (b) insulting or demeaning a student or group of students causing substantial disruption in, or substantial interference with, the orderly operation of the school.” S.C. Code of Laws Ann. § 59-63-120 The Act also requires local school districts to adopt policies prohibiting harassment, intimidation and bullying under the guidance of the South Carolina Department of Education. S.C. Code of Laws § 59-63-140
The South Carolina Department of Education’s Model Policy Prohibiting Harassment, Intimidation or Bullying contains ten statutory requirements. The policy must include a statement prohibiting harassment, intimidation, or bullying of a student; a definition of harassment, intimidation, or bullying no less inclusive than the definition in § 59-63-120; a description of appropriate student behavior; consequences and appropriate remedial actions for persons committing acts of harassment, intimidation, or bullying and for persons engaging in reprisal or retaliation; a procedure for reporting acts of harassment, intimidation, or bullying to include a provision for reporting anonymously (however, formal disciplinary action must not be taken solely on the basis of an anonymous report. The procedures must identify the appropriate school personnel responsible for taking the report and investigating the complaint); a procedure for prompt investigation of reports of serious violation and complaints; a statement that prohibits reprisal or retaliation against a person who reports an act of harassment, intimidation, or bullying; consequences and appropriate remedial action for persons found to have falsely accused another; a process for discussing the district’s harassment, intimidation, or bully policy with students; and a statement of how the policy is to be publicized, including notice that the policy applies to participation in all school-sponsored functions.
1. If a child experiences bullying at school, he should report it immediately to a teacher, counselor, or school administrator. The child should also tell his parents about the incident.
2. If parents discover that their son or daughter is being bullied, the parents should contact the appropriate school officials (principal or assistant principal) and request an investigation.
3. If the parents are not satisfied with the principal’s course of action, they should submit a written complaint to the District Superintendent’s office for further review.
4. If the parents feel they are not getting a prompt response to their concerns from the District Superintendent’s office, the parents should then contact the Office of the Ombudsmen at the SCDE so that a course of action involving the parent and the district can be taken to hopefully resolve the parents’ concerns.
5. The SCDE’s ombudsman cannot take sides in the investigation. Instead, she will investigate the parents’ concerns, connect them with the appropriate local school district staff, and provide them with the local school district’s bullying and harassment policies should they wish to appeal their issues to the District Superintendent or local board.
https://ed.sc.gov/districts-schools/school-safety/bullying/
Richland School District Two’s website also provides essential information to parents who suspect their child is being bullied. Parents are encouraged to contact the student’s teacher or call (803) 736-8756, a 24 hours a day Safe School line, to report incidents. The site also provides the following helpful tips to identify if a child is being bullied or may be bullying others:
Being Bullied
Comes home with damaged or missing clothing or other belongings; reports losing items such as books, electronics, clothing or jewelry; has unexplained injuries; complains frequently of headaches, stomachaches or feeling sick; has trouble sleeping or has frequent bad dreams; has changes in eating habits; hurts themselves; are very hungry after school from not eating their lunch; runs away from home; loses interest in visiting or talking with friends; is afraid of going to school or other activities with peers; loses interest in school work or begins to do poorly in school; appears sad, moody, angry, anxious or depressed when they come home; talks about suicide; feels helpless; often feels like they are not good enough; blames themselves for their problems; suddenly has fewer friends; avoids certain places; or acts differently than usual
Bullying Others
Becomes violent with others; gets into physical or verbal fights with others; gets sent to the principal’s office or detention a lot; has extra money or new belongings that cannot be explained; is quick to blame others; will not accept responsibility for their actions; has friends who bully others; or needs to win or be best at everything
Cyberbullying
Sending threatening, taunting or teasing emails to someone; using a computer or any other technology to spread gossip or rumors or to make someone’s private information public; pretending to be another person online to post or e-mail things that will embarrass or get that person in trouble; being a “pretend friend” online with the intention of later hurting or humiliating someone; “ganging up” on someone in a chat room or on a message board; “griefing” someone in an online video game comments by constantly picking on a new or inexperienced player; texting hurtful or rude comments to someone’s phone; using chat, instant messaging or a blog to exclude people, pick on people or divide the “populars” from the “unpopulars”
Source: www.stopbullying.gov and PBS Kids.org
https://www.richland2.org/Departments/Operations/School-Safety-Information/Information-on-Bullying
As the parent of a middle schooler, I am comforted to know that the State of South Carolina is committed to combating bullying at school and on-line. I encourage all parents to take the time to examine your child’s district policy on bullying and become engaged in the process by talking with your student and his/her teachers and school administrators about bullying and ways to raise awareness and create a community centered on kindness and empathy.
Other Resources for Parents
http://www.rachelschallenge.org
http://www.stopbullying.gov/what-is-bullying/index.html
http://www.thebullyproject.com/parents
http://www.stopbullying.gov/prevention/talking-about-it/index.html
http://www.violencepreventionworks.org/public/bullying_tips_for_parents.page
http://www.apa.org/helpcenter/bullying.aspx