Personal Injury Attorney

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Fairfax Injury Lawyer Brien Roche Addresses Personal Injury Actions

Brien Roche

If you or a loved one have suffered a personal injury as a result actions or inactions of another, you may have a basis for making a claim. The personal injury attorney you choose must have the right mix of compassion, knowledge and toughness to evaluate and aggressively pursue your claim.

Personal Injury Experience

Brien Roche is an experienced personal injury lawyer serving clients in Fairfax County, Virginia as well as Maryland and Washington, DC. Brien Roche has over 40 years of trial experience. He has achieved substantial compensation for clients. If you think you may have a claim, contact Brien Roche today.

Types of injury claims where we can help:

Choosing Your Personal Injury Lawyer

In choosing a personal injury attorney either in the Fairfax, Virginia area or anywhere there are several factors that you should look at:

  • The attorney’s experience.  In particular, the more complex the claim is then in general the more experienced you would want your attorney to be.  That experience, to some extent, can be identified by looking at the attorney’s website or other published information about the attorney.  Many attorneys are also listed in a legal directory referred to as Martindale-Hubbell.  Martindale-Hubbell is a very well respected legal publisher that publishes the premier attorney rating service.  Attorneys are evaluated by Martindale-Hubbell as either A, B or C with A being the highest.  There is then a further rating as to their ethical standing and in that regard they are either rated with a letter “V” or simply not rated at all in that regard.  The letter “V” simply means “very ethical”.
  • Results that the attorney has had with other cases may be indicative of competence of the attorney.  Every case, however, is different and as such although the attorney may have had a very favorable result in one case that does not necessarily guarantee the outcome in your particular case.
  • The attorney’s experience in terms of dealing with insurance companies.  Many attorneys that represent plaintiffs also have some experience in terms of actually representing insurance companies.  That two-sided experience frequently is a plus for any attorney that is involved in representing injured parties.

The Initial Meeting

In terms of preparing for your first meeting with your personal injury lawyer it’s probably worthwhile to do some homework.  Checking out the attorney online may give you some idea at least as to how well established the attorney is.  One indicator in that regard is whether or not the lawyer has an actual physical office.  The absence of a physical office may suggest that the attorney is not well established.

If your contact with the injury lawyer is through a representative who tries to get you to sign a Retainer Agreement, that may well be a clue that the attorney is not someone that you want to deal with.  You want to deal directly with the attorney.

In terms of the first appointment with the attorney there are several things that you need to bring with you:

  • Everything that relates to the incident.
  • Your own auto insurance policy if in fact this is an automobile collision.
  • Any and all information you have about the other driver and/or that driver’s insurance carrier.
  • A complete description of the incident.
  • The police report.
  • Any information card that you received from the police at the scene.
  • Any bills or records relating to any healthcare treatment that you’ve received subsequent to the injury.
  • Any and all health insurance coverage that you have.  You need to be aware that under most health insurance policies that the health insurance carrier has a right to subrogate/recover any monies that they have paid out on your behalf.  There may be some deducts from that.
  • Any and all correspondence that you’ve had with the other driver’s insurance carrier.
  • Any information that you have about any other injuries that may in any way be related to this injury.
  • Any and all property damage estimates.
  • Names and phone numbers of all witnesses.
  • All pictures of the vehicle and of the scene.
  • Any receipts for towing or storage of the vehicle.

The reason that your insurance information is important is because your auto insurance coverage may provide coverage for you.  In particular if the other driver is uninsured then your uninsured motorist coverage may be your only source of recovery.  Likewise if you have medical payments coverage, that may provide coverage for you up to the limits of that medical payments coverage.  That type of coverage typically will reimburse you for any treatment that your insurance company deems to be reasonable and necessary.

Ask Questions

Finally if there are any questions that you think of before the meeting with the attorney, be certain to write those down so that you don’t forget to ask them during the course of the meeting.   A common question that is asked is “What is my case worth?”.  Most attorneys will simply tell you that they don’t know.  Evaluating a personal injury case is something that is going to be a product of the extent of your medical treatment, the extent of any lost time from work, the extent of your pain and suffering and the overall duration of the injury.  Those are all factors that any realistic attorney is going to have to disclose to you and will not be able to give you a reliable estimate as to what your case is worth until you’ve made either a full recovery or achieve what is called “maximum medical improvement” i.e., you’ve gotten as well as you’re going to get.

Personal Injury Award Not Taxable

Personal injury recoveries are not taxable.

Although there are occasional attempts in the U. S. Congress to change the law in that regard as of June 2012 the law still remains that personal injury recoveries are not taxable.  The logic behind these recoveries not being taxable is the fact that a personal injury settlement is compensation for the loss of a body part or body function.  This is not income.

The failing in that argument is that within many personal injury settlements a substantial component of the recovery is for loss of income.

In most personal injury settlements or judgments the award, however, is not broken down as to how much is for loss of income and how much is for the actual injury component.

In any event, at present, recoveries of this nature whether they include loss of income or not, are simply not taxable at the federal level or at the state level.  Repeated attempts by some members of Congress to change that may someday be successful but at present those attempts have not been well received by other members of Congress.

The fact that the award is not taxable means that the amount of recovery does not even need to be reported on the tax return.  Any inquiry from the IRS as to the source of the funds should be met with the identity of the payor insurance company.

Discharging Your Personal Injury Attorney

That probably is not a happy day for your attorney but sometimes it does come to pass that it is necessary to simply part company.  In the Fairfax, Virginia area if an attorney has been discharged prior to the case being settled then the attorney typically is paid on what is called a quantum meruit basis.  The term quantum meruit are  two Latin words that literally mean “how much is it worth”, i.e. how much is the attorney’s service worth.  Those services, under the terms of a typical personal injury retainer agreement, are evaluated based upon a percentage of the recovery.

If in fact there has been no settlement and therefore no recovery, then a contingent fee basis is probably not appropriate to pay the attorney at this point.  Quantum meruit compensation means that the attorney then is entitled to be paid based upon the usual hourly rate and the number of hours devoted to the matter.  If in fact the attorney’s usual hourly rate is $300 per hour and 20 hours have been devoted to the matter, then the total attorney’s fees would be fixed at approximately $6,000.  That does not mean that the attorney necessarily gets that if, in fact, the case itself is not even worth $6,000.  There has to be some rule of reason that is applied as to how much of the total value of the case the attorney may be entitled to in the event of being discharged.

Unhappy With Your Personal Injury Settlement-Look To The Lawyer

So you are unhappy with the personal injury settlement that you reached.

In Virginia there is a cooling off period after you have signed a Settlement Agreement with an insurance company provided you are not represented by counsel.

Assuming that you were represented by counsel and you decide after the fact that you are not happy with the amount of the personal injury settlement then your only recourse is to make some claim against the lawyer that represented you. That claim would be for legal malpractice.

Most attorneys have the client sign a document indicating that they have approved the settlement and that they are authorizing  the disbursement of proceeds.  Likewise, the insurance company has virtually every injured party sign a Release indicating that they understand that the settlement amount is being paid in full satisfaction of the entire claim.  If in fact you have signed documents such as that, it is going to be difficult to make a claim against your former attorney alleging that attorney somehow committed legal malpractice in allowing you to settle the case.

Liability Is The Primary Issue In Personal Injury Cases

For a personal injury attorney the two most important issues in looking at a case are that of liability and damages.

Liability means can you prove that the party that is believed to be at fault is, in fact, at fault and is liable for damages.

In an automobile collision that generally is a function of establishing some violation of one of the rules of the road or if rules of the road do not apply in your case then establishing some violation of ordinary care.

In a premises liability case such as a slip and fall matter liability is proven by establishing that the property owner knew or should have known of the defective condition on the premises which would then cause injury to the plaintiff.

In a product liability case liability is established typically through expert testimony showing that there is a product defect either in design or manufacture which could cause injury to the plaintiff.

In any medical malpractice case liability is established by presenting expert testimony from another physician establishing what the standard of care is that the defendant doctor or health care provider should have complied with and then further showing that health care provider breached the standard of care, i.e. did not comply with it.

In other professional liability cases liability is established in much the same way, i.e. through expert testimony showing what the standard of care is and the fact that there has been a violation of that standard of care.  A violation of the standard of care means that the defendant’s conduct fell below the standard of care.

Liability Is Founded Upon a Duty

As part of a determination of whether liability exists, it must be determined if a tort duty or a duty in tort exists.

The issue of tort duty or duty in tort was recently taken up by the Virginia Supreme Court.  The case is RGR v. Settle decided on October 31, 2014.  Mr. Settle was the operator of a truck that was driving on a private road.  The private road intersected with a railroad crossing.  The railroad crossing was controlled with “crossbuck” signs.  There were no warning signs, stop signs or other barriers.  The railroad owned the land 30 feet on either side of the railroad tracks starting in the middle of the tracks and then going outward.  The defendant in this case, RGR, was a lumber company.  RGR unloaded lumber from the railroad cars and then stacked it on the land alongside the railroad tracks.  In this particular case, some of the lumber was stacked in such a way that it encroached by seven (7) feet into the land owned by the railroad on that side of the tracks.  As such the stacks of lumber were 23 feet from the center of the tracks.  Mr. Settle had been crossing the railroad at this particular point several times that day.  He was hauling gravel to a nearby construction site.  The train at the time of the impact was traveling 45 miles per hour and was composed of three engines and more than 100 cars.  It was conceded that the sight line from the intersection of the private road and the railroad tracks was 800 feet west.  That was the direction from which the train was coming.  The railroad company conceded that one of its objectives was to make sure that there was a clear sight line for people crossing the tracks.  The railroad company likewise testified that RGR was not supposed to be storing any of its lumber on the railroad property.  An expert testified on behalf of Settle that due to the various noises inside his truck it would have been extremely difficult to hear any noises outside the cab.  There was disputed testimony as to whether or not the train blew its whistle as it approached this particular intersection.  There was evidence that Settle could not see the tracks to the right because of the lumber stacks.  At the intersection of the private road and the railroad tracks there was no stop sign.  Indeed it was conceded by a witness on behalf of RGR that if Settle believed there was no train coming, there was no obligation on his part to stop.

Tort Duty-Duty to Mankind

The Virginia Supreme Court dealt with the issue of whether or not RGR had a tort duty to Settle to exercise ordinary care in terms of the placement of this lumber.  The Court reviewed the history of Virginia Supreme Court decisions on the issue of tort duty.  General negligence principles require a person to exercise ordinary care to avoid injury to others.  In fact in a 1927 case it was recognized that there is a duty owed to mankind generally not to do any act which a person of ordinary prudence could reasonably apprehend, as a natural and probable consequence thereof, would subject another person to peril.  The common law requires that every person exercise ordinary care in the use and maintenance of his own property to prevent injury to others.

The Court also noted that applying common law tort duty, a person may not use his land in such a way as unreasonably to injure the interest of persons not on his land, including owners of adjacent lands, other land owners and the users of public ways.  Citing the Second Restatement of Torts, the Court noted that a possessor of land is subject to liability to others outside of the land for physical harm caused by a structure or other artificial condition on the land which the possessor realizes or should realize would involve an unreasonable risk of such harm.

Tort Duty Of Owners of Land

In this particular case the Circuit Court properly instructed the jury that every person has the tort duty to exercise ordinary care in the use and maintenance of its property to prevent injury or death to others.  In order for such a person to be negligent, his conduct must create a recognizable risk of harm either to that individual or to a class of persons within a given area of danger.  Whenever circumstances exist that an ordinary person could reasonably understand that, as a natural and probable consequence of his act, another person rightfully there will be in danger of receiving an injury, a tort duty to exercise ordinary care to prevent such injury exists.  The existence of that tort duty does not depend on proof of a particular relationship.  In this case the purpose of the railroad’s right-of-way was to maintain clear sight lines for motorists and the train crew.  Settle in this case was rightfully traveling on this part of the road.  RGR’s argument that it owed no duty to Settle because RGR had no actual or constructive knowledge that the lumber stacks created a dangerous condition was simply without merit.  The question as to whether RGR breached its duty of ordinary care by stacking its lumber within the right-of-way area must be distinguished from the question of whether or not a tort duty exists.  In this case such a duty does exist.  The issue of whether or not there was a breach of that duty and whether or not that breach was a cause of the injury, in this case the death of Settle, was for the jury.  RGR’s contention that it owed no duty to Settle would in effect absolve one of liability for negligence no matter how dangerous the conduct or foreseeable the injury.  Virginia’s Supreme Court refused to adopt that argument.
For more information about wrongful death actions see the pages on this site. For more information on the concept of duty of care see the pages on Wikipedia.

Once the existence of a duty and a breach of that duty have been established then it must be proven whether or not the breach of that duty was in fact a cause of injury and what are the precise injuries or damages that were caused.

The Tort Duty Cannot be Based on a Contract

A tort is a civil wrong that is not based upon a contract. An example may help clarify that definition. If I punch you in the nose because you say some bad things about one of the books that I have written then you could sue me civilly for the tort known as battery.

If on the other hand you and I enter into a contract and one of us breaches the contract then the resulting lawsuit is simply a breach of contract action.  It is not a tort claim.  Sometimes that distinction between contract and tort in Virginia can become confusing.  For instance if you and I enter into a contract for you to build a deck on the back of my house, if the deck then collapses while I’m standing on it, I may have not only a contract claim against you but I may also have a tort claim against you because of your negligence in terms of the construction of the deck. The tort claim arises out of the duty to exercise ordinary care in the construction of the deck. The contract claim arises out of the contract.

See also the blog on this site for a number of articles published by Brien Roche dealing not only with personal injury but a host of related topics. For more information on the general topic of personal injury see the pages on Wikipedia.

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Personal Injury Attorney

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Contact Us For A Free Consultation