Richmond Car Accident Lawyer

Author: Christopher A. Meyer, Richmond Personal Injury Lawyer

Many people in the Commonwealth of Virginia are required by court order to financially support children and have been unable to keep up with the court ordered payments.  In such cases, the Commissioner of the State Department of Social Services may cause an order to issue that attaches to property and income owed to the debtor by a third person and requires that such property or income be turned over to the Commonwealth in satisfaction of the past due child support.  There is a specific statute, Section 63.2-1929[1], which discusses this issue in relationship to personal injury cases in Virginia.    The operative sentence is as follows:

The orders to withhold and to deliver shall take priority over all other debts and creditors under state law of such debtor including the proceeds or anticipated proceeds of a personal injury or wrongful death award or settlement except that the Department’s lien shall be inferior to those liens created under Section 8.01-66.2 or Section 8.01-66.9, any statutory right of subrogation accruing to a health insurance provider, and the lien of the attorney representing the injured person in the personal injury or wrongful death action. (Emphasis added).

The two statutory sections cited are laws giving doctors and other medical providers a lien for a least part of their charges, up to $750 for most doctors, $200 for an ambulance, and $2,500 for a hospital, and also give the Commonwealth liens for its services such as Medicaid and services provided by Commonwealth operated hospitals like the hospital at the University of Virginia.  What this means in a typical personal injury case is that the lawyer gets the fee he has earned, the doctors get a lien for the minimum amounts as noted above, and the child support lien gets the rest until the whole lien is satisfied.  In many cases this means that a person in a personal injury case will receive no funds at all from the settlement proceeds with the entire net proceeds going to the back child support lien.  The Commonwealth can negotiate these liens but often takes a very hard line.

Therefore,  if an injured person with a claim owes back child support, the Commissioner may notify the person’s attorney or the insurance company paying the proceeds that there is a back child support.  If that happens,  then that back child support may have to be paid first, in its entirety, before the injured person gets anything.

If you are injured, and have a claim, and also owe back child support, then be sure you notify your attorney.

Richmond Personal Injury Attorney Priscilla Woody

Author: Priscilla R. Woody, Richmond Injury Lawyer

While a trial (by jury or bench trial by judge only) is our clients’ only legal right to achieve a recovery, some cases are resolved through alternative means other than a trial to resolve a personal injury case.  Arbitration is one type of alternative dispute resolution.  Arbitration is an alternative means to resolving a dispute using an impartial person (an “arbitrator”) who otherwise has no interest or involvement in the case.  The arbitrator acts as King Solomon and decides who wins and who loses.   In a personal injury case, the arbitrator also decides the amount of the award (that is, what amount the insurance company must pay the injured person).

Arbitration is not appropriate for every case.  The decision whether to arbitrate or not is a complicated one that should be made by you and your attorney.[1] Even the process of agreeing to arbitrate requires a number of steps and a number of decisions.  Often the process of agreeing to an arbitration and the parameters of the arbitration is a lengthy negotiation in itself.  There are a lot of considerations involved, and often an arbitration does not go forward because the parties cannot agree on the structure of the arbitration.  The basic decisions are as follows:

• First, all the parties must agree to arbitrate.
• Second, the parties must agree upon who will serve as the neutral arbitrator.  An experienced attorney or retired judge is usually the arbitrator.
• Third, the parties must agree on who will pay the arbitrator’s fees. Usually the fees are split equally between all the parties.
• Fourth, the parties must agree in advance if the arbitrator’s decision will be binding or non-binding.  If the parties agree that the arbitrator’s decision is binding, then the arbitrator’s decision is final.  The parties agree that there will be no appeal and no chance to change the arbitrator’s decision, and that all parties will be bound by the arbitrator’s decision.   In a non-binding arbitration, the arbitrator can recommend but cannot impose a decision on either party. A non-binding arbitration can still be beneficial because it can give the parties a glimpse into the adversarial proceeding and facilitate a settlement sooner rather than later.  So a non-binding decision sometimes leads to an agreed settlement later.  If a non-binding arbitration fails to resolve our client’s case, then we are always prepared to go forward with trial to secure the compensation to which our client is entitled.
• Fifth, the parties may decide to arbitrate only certain issues of the case. For example, the parties may agree to the value of a case but disagree as to who is liable or at fault.  So the parties may arbitrate only the liability issue of the case.  Or the parties may agree that one party is responsible for whatever damages the other party suffered, but disagree as to the dollar amount of those damages.  So the parties may agree to have the arbitrator decide only the amount of the damages, and assume liability.
• Sixth, sometimes the parties limit the arbitrator’s decision by agreeing to a “hi-lo” limitation on the arbitrator’s award.  Basically, the parties agree in advance on a maximum and minimum award, but the arbitrator is not told of this limitation. For example, the parties may agree that the maximum award is limited to $50,000, and the minimum award is limited to $20,000.  Then if the arbitrator’s decision is $65,000 to the plaintiff, the plaintiff would only receive $50,000.  If the arbitrator’s decision is $12,000 to the plaintiff, however, the plaintiff would actually receive $20,000.
• Seventh, the parties must agree in advance on how evidence will be presented to the arbitrator.  Sometimes the evidence is presented to the arbitrator “on paper’, that is, by submitting documents only.  Other times the evidence may include live testimony by witnesses to the arbitrator.  Sometimes there is a combination.  If the arbitration evidence is submitted “on paper”, sometimes the parties agree that the plaintiff will submit first, then the defendants will submit a few days after that, and then the plaintiff will have the opportunity to submit “rebuttal” materials a few days after that. Other times all parties submit their documents at the same time. Regardless of the schedule on which the materials are submitted, normally each side sends a copy of their submission to all other parties.
• Eighth, the parties must agree on what rules of evidence apply. For example, for medical evidence, can just medical records be submitted to the arbitrator or, as at trial, does the medical evidence have to be presented either by a deposition (recorded testimony under oath) or by the doctor testifying live in person under oath? Sometimes records are submitted with an affidavit signed under oath that confirms the matters stated in the document are accurate.
• Ninth, if the arbitration is not done “on paper”, then the parties must agree on who can be present at the arbitration.  Sometimes the plaintiff wants to have a family member present for “morale support”.  If there is an insurance company that will pay any arbitration award made against the defendant, then the insurance company may want to have a representative attend the arbitration.
• Tenth, the parties must agree on any other conditions that should apply to the arbitration.  For instance, the parties may agree that the arbitrator should not take into account the “venue” where the case would be tried, if it went to court.  Or the parties may agree that each side is limited to a certain amount of time to present their case to the arbitrator, such has 30 minutes or an hour. There are a wide variety of restrictions or conditions that the parties may agree to that would apply to the arbitration.

The arbitrator’s role is similar to a judge’s role.  The arbitrator hears or reviews the evidence, decides whether the plaintiff is entitled to recover and, if so, how much the plaintiff will recover. The process is similar to a trial but less formal.  If the arbitration is done in person (and not “on paper”), then normally the plaintiff’s attorney and the defense attorney will each make a brief opening statement, and then call witnesses live or by video to testify, and will submit documents.  Then each attorney will make a “closing argument.”  During the arbitration, the arbitrator may also ask the parties and witnesses questions.  After the closing arguments, the arbitrator usually will tell the parties when to expect to make his final decision.  It could take a couple of weeks more or less.  Most of the time the arbitrator puts his decision in writing and sends it to the parties or their attorneys; often the arbitrator will review the reasons for his decision.

Arbitration is usually faster and less expensive than trial.  Arbitration is a;most always quicker than a trial date; trial dates in Virginia are often set a year to a year and a half from when a lawsuit is filed.  You may still incur the same amount of litigation expenses if the parties don’t agree to arbitration until after the discovery process (answering interrogatories, depositions and expert designation) is complete.  Those litigation expenses would occur in preparation for trial. The actual trial would probably cost more than arbitration.  In arbitration you don’t have to spend money on jury research, paying your doctors and other expert witnesses to attend trial, and subpoenaing other witnesses to trial. The timing of the decision to arbitrate dictates the litigation cost savings.  The arbitrator’s fee will inevitably be less than litigating the case to trial.

Another type of alternative dispute resolution is mediation.[2] Arbitration is different from a mediation.  In mediation, the parties decide whether to settle their case with the help of a mediator.  The mediator helps to facilitate the settlement negotiations but, unlike an arbitrator, does not make a final decision.

Your personal injury lawyer will be familiar with litigation and trial as well as the various methods of alternative dispute resolution.  An experienced attorney will evaluate the pros and cons of the various methods, and will advise when and if a method of alternative dispute resolution is appropriate for your case.  The injury lawyers at Allen and Allen routinely use litigation, trial, arbitration, and mediation to resolve cases, and will advise you of your options.   As always, if you have any questions, just ask.  We are here to help.

Mechanicsville Car Accident Lawyer

Author: Attorney Christopher A. Meyer

Taking bankruptcy can have a significant effect on a personal injury case.  In a recent personal injury case[1], the Virginia Supreme Court discussed the disastrous results that can occur when a plaintiff’s taking bankruptcy and the pendency of a personal injury case are not properly coordinated.

In Kocher the plaintiff was injured in an car accident.  Over a year later, he filed for bankruptcy and received a discharge several months following his filing. His personal injury lawyer filed suit several months after that, complying with Virginia law[2] that requires attorneys to file suit (in most cases) within two years of the date of the injury. Failure to abide by this rule permanently bars cases from being filed.

Though the attorney’s filing occurred several months in advance of the legal deadline[3], it was not served and the issue properly joined until several years later.  Though often a non-issue, in Kocher the lawyers for the defendant argued that the plaintiff and his attorney did not have standing (the legal right to initiate a lawsuit)[4] to file suit. Therefore, the suit they had filed to stop the statute of limitations from running was a nullity[5] (of no legal force and effect) and the plaintiff’s suit should be dismissed. The Virginia Supreme Court agreed.

The Supreme Court held that when a person files bankruptcy, by federal law all of his assets become part of the bankrupt’s estate and are therefore controlled by the trustee (court appointed administrator of the bankrupt person’s affairs)[6] in the bankruptcy.  The plaintiff’s assets include personal injury cases, regardless of whether they have been filed or listed in the bankruptcy filing.

Once the plaintiff has filed for bankruptcy, the trustee has possession of his assets and neither the plaintiff or his attorney have the right to file suit on his personal injury case.  This rule meant neither the plaintiff or his lawyer in Kocher had standing to file suit, causing the permanent dismissal of the case.

There are several ways to handle this problem.  Once a case has been filed in bankruptcy the trustee can be asked to abandon the personal injury claim, which allows the plaintiff to file suit.  Better, once the personal injury claim has been listed as an asset the trustee can be asked to exempt the claim.  This exemption also frees the plaintiff to file suit on his case.  Lastly, If the personal injury claim is listed as an asset and not dealt with by the trustee, it can be presumed abandoned when the plaintiff receives a discharge, or order forgiving the bankrupt person’s remaining debts,[7] in bankruptcy.

If none of these actions are taken then the trustee keeps the case and the rights to file suit even after a discharge has been granted.  In that case, any suit filed by the plaintiff or his attorney will not be effective.

The point: any time that a person who has a personal injury action wants to declare bankruptcy there must be close cooperation between the attorney handling the case in bankruptcy and the attorney for the personal injury action.  A failure to follow the proper steps may result, as Kocher demonstrates, in the case being lost forever.

About the Author: Chris Meyer is a car accident lawyer in Mechanicsville Virginia with personal injury law firm of Allen & Allen. He has developed a reputation on the Virginia Rules of Professional Conduct and annually lectures on Virginia Legal Ethics. He also lectures regularly on recent decisions of the Virginia Supreme court.

Author:  Attorney Christopher A. Meyer

Mechanicsville Car Accident Lawyer

Many people seem to use obscene or lewd language on a cellphone that they would never use in face to face conversation.  In Virginia, use of this language on the telephone is not only crude and inappropriate, it’s illegal.  Profane, lewd or vulgar language over a telephone has been a criminal offense in Virginia for many years.  Up until this year, Virginia statutes read as follows:

“Any person who uses obscene, vulgar, profane, lewd, lascivious, or indecent language, or makes any suggestion or proposal of an obscene nature, or threatens and illegal or immoral act with the intent to coerce, intimidate, or harass any person, over any telephone or citizens band radio, in this Commonwealth, is guilty of a Class 1 misdemeanor.

Over any telephone includes, for the purposes of this section, any electronically transmitted message that is received or transmitted by telephone. “[1]

As you can tell, this statute is outdated – it does not cover the use of modern communication devices like cell phones, smartphones, tablet PCs, and similar devices, and does not cover texting.  To modernize this law, the General Assembly has amended and updated the statute.  Effective July 1, 2011, the last sentence of the statute now reads as follows:

“Over any telephone includes, for the purposes of this section, any electronically transmitted communication producing a visual or electronic message that is received or transmitted by cellular telephone or other wireless communications device.”[2]

This statutory change (shown by the italics) makes sexting or harassment by text message a Class 1 misdemeanor.  Use of obscene, vulgar, profane, lewd, lascivious, or indecent language by telephone was already a Class 1 misdemeanor, and now this has been expanded to other electronic devices.  Class 1 misdemeanors are punishable by up to one year in jail and a fine of up to $2,500 – or both[3].

In light of this updated law, and due to the inherently public – and irreversible – nature of electronic communication, remember to carefully consider whatever you send out on the internet.  Such actions are no longer just a matter of bad manners.  Now the penalty for failing to do so might be expensive.  And  – with texting or emailed pictures – the proof is right there on the receiver’s electronic device.

About the Author: Chris Meyer is a car lawyer in Mechanicsville Virginia with Allen & Allen. He assists client with car accident claims in Mechanicsville, Hanover and the surrounding areas. Recognized as a talented and persuasive writer, he has penned numerous articles and seminar materials on issues such as insurance coverage, legal ethics and evolving case law in Virginia.   As a respected lawyer in Virginia, Chris is regularly asked to lecture on Virginia Legal Ethics and recent decisions of the Virginia Supreme Court.

Attorney Tammy S. Ruble

Recently my son received a summons to serve as a juror in Chesterfield County. “I’m exempt, of course,” he said to me. “Why?” “Because my mother’s a lawyer,” he responded. Sorry, son, it’s not quite that easy.

I’ve always wanted to serve as a juror, but others dread the thought and would sooner walk across a bed of hot coals than get that letter. So how did that juror summons end up in your mailbox, anyway? A popular belief is that the juror pool is drawn from the voter registration rolls, but that is just one source. Virginia Code §8.01-345[1] permits jurors to be chosen from the voter registration rolls, the Department of Motor Vehicle’s list of persons with motor vehicle licenses, the personal property tax rolls, and any other lists as may be designated by the chief judge of the circuit. Selection may be made by manual, mechanical or electronic means, as long the selection is random.

The requirements to be a “qualified” juror in Virginia are as follows: you must be (1) are over the age of eighteen years, (2) a resident of Virginia for at least one year, and (3) a resident of the city or county in which you are called for duty for at least six months. By law in Virginia, some persons are automatically disqualified from serving as jurors[2], including those who have been declared by a court to be incapacitated, persons convicted of treason or a felony, and persons otherwise under a disability as defined by Virginia Code §8.01-2[3]. Some, though qualified to serve as jurors, are exempt, including the President and Vice President of the United States, the Governor, Lieutenant Governor and Attorney General of Virginia, members of Congress, members of the General Assembly while in session, licensed practicing attorneys, judges, sheriffs, deputy sheriffs, and police. The exemption for police and sheriffs generally rests on the notion that it would be a hazard to the community to take these people away from their jobs. A similar exemption exists for firefighters under certain special circumstances in Virginia Code §8.01-341.1[4].  That statute also allows certain other people to claim an exemption if they choose to do so. Some interesting exemptions in that category are for any person having legal custody of and responsibility for a child under 16 who requires continuous care during normal hours, any nursing mother of an infant, and any person over the age of 70.  Another important exemption in that statute is the one available for anyone “who is the only person performing services for a business, commercial or agricultural enterprise and whose services are so essential to the operations of the business, commercial or agricultural enterprise that such enterprise must close or cease to function if such person is required to perform jury duty.” In a similar vein, another code section allows a person to defer jury service if service at a particular time would cause “particular occupational inconvenience.”[5] In that instance, the person is not exempted from duty, but can delay the duty until a later term.

What if you don’t qualify for one of these exemptions, but your boss is just none too pleased that you’ll be absent from your job?  Another law[6] prohibits your employer from penalizing you or requiring you to use vacation or sick leave for jury duty. Happy to do your duty, but it seems like you were just called a few months ago?  Another statute says that no person shall “report to any state court for jury duty” more than once every three years. Be careful: although the code section says you don’t have to serve if you’ve “report[ed]” for duty within the preceding three years, if you received the summons but never actually had to show up at the courthouse during that time, you’re still on the hook. Please also note that this only applies to jury duty in state court. Serving on a jury in federal court doesn’t get you a pass in state court.

No exemptions, no prior service, no disqualification on your part?  What happens if you just don’t show up for jury duty? You’ll likely be summoned to court to explain yourself.  If the judge doesn’t accept your excuses, you could be fined anywhere between $50.00 and $200.00.[7] In some courts, failure to show up for jury duty will result in the judge ordering a capias (court order) for your arrest.   Other courts issue a “show cause” order requiring you to appear and explain why you did not show up for jury duty.  If you don’t have a valid reason, you may be fined or even incarcerated.  So it’s not a smart idea to just fail to show up.

Trial by jury was considered such an important civil right by the Founder Fathers that it’s found in the Fifth, Sixth and Seventh Amendments to the Constitution[8].  Exercise of that right is dependent on others being willing to serve.  It may be inconvenient, but serving on a jury is one of our most important rights and obligations as citizens. I hope you’ll take the opportunity to serve if it arises.

About the Author: Tammy Ruble is a long time Chesterfield resident and an attorney with personal injury law firm of Allen, Allen, Allen & Allen. She serves as a resource on issues in her special fields of expertise which include the crafting of Complaints and documents relating to infant settlements, wrongful death settlements, due diligence, and discovery.

Mechanicsville Car Accident Lawyer

Author: Attorney Chris A. Meyer

People who have been charged with a crime often wish to have their record erased.  The legal term for this is “expungement” or “having the record expunged”.  Unfortunately, expungement is not possible in most cases.  If a person has been charged with a crime in Virginia, the record of that charge will most likely remain and won’t be changed.

The Virginia statute[1] which allows a person to petition the court to have their charge expunged provides a petitioner with four grounds for moving to have their criminal record cleared, but all four require the charges to have been dismissed.   The four grounds for expunging a criminal record are:

(1) if the person has been acquitted of the charge;

(2) if the prosecution has taken a nolle prossequi [2] on the case (dismissed it before trial);

(3) if the charge has been otherwise dismissed; or,

(4) if the offender has no prior criminal record and the crime they were charged with was a misdemeanor.

If none of these criteria are met, the fact of the charge will remain on the person’s record indefinitely.  Even if one of the first three criteria are met, the charge is not expunged unless, at a hearing before the judge, the judge finds that “ … the continued existence and possible dissemination of information relating to the arrest of the petitioner causes or may cause circumstances which constitute a manifest injustice to the petitioner …  Otherwise, it shall deny the petition.”[3] Manifest injustice is a very large hurdle to overcome, and proving it can be quite difficult.  There is no hard and fast rule, or easy definition, of what “manifest injustice” means.[4]

The fourth criteria is the easiest one.  If the person has no prior criminal record and the charge was a misdemeanor, then the statute says the burden is on the Commonwealth to prove “for good cause shown” why the petition should be denied; otherwise, the court “shall enter an Order of expungement (emphasis added)”.[5] While this seems straightforward, a question regarding this right was recently brought before the Virginia Supreme Court in a case .   The issue in the case was the following: Does a person who has been declared not guilty by reason of insanity have a right to have his record expunged?   The Virginia Supreme Court had never addressed this question before.

The Virginia Supreme Court decided that a person acquitted by reason of insanity does NOT have the right to have his or her criminal record expunged.[6] The Court noted that a person who has been acquitted by reason of insanity is not usually let free; rather, they are placed in treatment at a mental facility until they are well enough to be released back into the general population.  Due to their continued confinement, the Court ruled that this acquittal was not covered by the dismissal section of the original law.  The Court stated: “Therefore, we hold that the term ‘acquitted’ in Code § 19.2–392.2(A)(1) does not include acquittals by reason of insanity.”[7]

About the Author: Chris Meyer is a car accident lawyer in Mechanicsville, Virginia with Allen & Allen. He has developed a reputation on the Virginia Rules of Professional Conduct and annually lectures on Virginia Legal Ethics. He also lectures regularly on recent decisions of the Virginia Supreme court. Chris helps Mechanicsville and Hanover residents with their car accident and personal injury claims.

Richmond Accident Lawyer J. David Douthit

Author: Attorney J. David Douthit

Many times our personal injury clients are upset when the police officer does not place charges against the driver our clients feel caused the auto accident, or when the officer does place charges but they are dismissed at traffic court.  Usually, however, it has no real effect on their personal injury claim under Virginia law. The reason is that, if their personal injury claim went to trial, the jury would never know whether the police officer charged anyone or not, and if the officer did, the jury would never know what the outcome of the charge was, either.

To many people, that sounds crazy. This seems like important information that a jury should know. There are, however, very good reasons why this information is not admissible at trial.

One of the questions at the trial of a personal injury claim is whether the defendant (the person who has been sued) is at fault in causing the auto accident.  In legal, terms, the question is whether the defendant was negligent; that is, did they do something wrong that caused the accident.[1] This is an issue the jury is supposed to decide based on the witnesses and evidence that is presented to them.  Usually the witnesses are questioned and cross-examined by attorneys for both sides, and the jury will hear a lot more information than the police officer had available at the scene of the accident.

Whether or not to charge someone who is involved in an motor vehicle accident is a decision that he police officer makes, based on their opinion and judgment. In a claim for personal injuries, we would not want the jury to substitute the police officer’s opinion for their own.  If the charges were admissible, the jury might be improperly swayed by the police officer’s opinion.  Similarly, the judge’s decision at traffic court is based on the evidence presented to the judge during what is usually a hearing lasting less than 15 minutes. In a claim for person injuries, we would not want the jury to substitute the traffic court judge’s opinion for their own.  The effort and expense that a defendant might make to defend himself against a traffic court charge that carries a fine of less than one hundred dollars may be very different from the effort and expense a defendant might make to defend himself from an injury lawsuit for thousands of dollars arising from the same accident.  Surely it would not be fair for a jury to be influenced by the decision of a traffic court judge to convict of a traffic charge when that decision was based on much less evidence than the jury had to consider in the injury case.

On the other hand, if the charges were dismissed by the traffic court judge, it would be unfair to the injured claimant (the plaintiff) to let the injury case jury hear that.  The standard of proof in a criminal traffic case is beyond a reasonable doubt, which is a very high standard.  In a civil claim for personal injuries, the standard is much lower; the claimant must prove the defendant was negligent by a preponderance of the evidence.  This is sometimes described as the greater weight of the evidence, or 51% or more. Surely it would be unfair for a jury in a personal injury trial to be influenced by the decision of a traffic court judge to dismiss a charge when the standard of proof is so much higher to support a conviction in traffic court than the standard of proof to support a finding of negligence in the personal injury case.

Of course, it’s not uncommon for jurors in a personal injury trial to have questions while they are discussing a verdict.  One of the most common questions jurors ask in a case like this, where there is a question as to who is at fault, is whether the responding officer charged anyone with a traffic violation. Typically, members of a jury with such a question will write the question out and a bailiff will deliver it to the presiding judge.  At that point, the judge will inform the lawyers for the parties that the jury has a question.  Typically the judge will read the question to the lawyers and give them an opportunity to express any preference they may have as to how the judge should respond.

For a variety of reasons, it is uncommon for a judge to give the jurors a substantive answer to their questions.  The reasons for not answering this question about whether anyone was charged in the accident should now be clear to you.  In every instance I can recall, the judge will ask the jury to return to the courtroom, read their question into the written record of the trial and tell the jury that they must base their verdict only on the evidence that was presented during the trial.  Assuming (as is almost always the case) that no evidence on traffic charges was presented during the trial, the judge will instruct the jurors that they should not speculate about such matters and base their verdict only on the evidence presented.

While an answer like this is probably the legally correct thing for a judge to say, it’s probably not very satisfying for the jurors.  The reason a judge won’t answer a question about who an officer may have charged is because, as we have seen, the answer will not help the jury properly decide the issue of fault.  There is also the danger that a jury wrestling with a difficult liability case will choose not to decide that issue, substituting the officer’s judgment as to who may have been at fault for their own.

Imagine a situation where two drivers collide in an intersection controlled by a traffic light.  Each driver tells the responding officer that his light was green and there are no other witnesses.  Often in these circumstances, the officer will charge no one.  Assuming that the traffic light is working properly, the decision not to charge anyone does not mean no one is at fault.  One of the two drivers ran a red light.  However, the officer has no way of knowing or proving which of the two drivers ran the red light.  Less often, the officer will charge both drivers with disregarding a red light.  Again assuming that the light is working properly, the fact that both drivers were charged does not mean that both drivers ran a red light.  One of them had a green light.  Sometimes the police officer will charge only one or the other driver with disregarding the red light.  This decision may be based on the police officer’s impression at the scene. But there may an eyewitness to the accident who gave their contact information to the person not at fault but the eyewitness may have left the scene before the police officer arrived.  And sometimes one driver may have left the scene by ambulance before the police officer arrives, and the officer may charge that driver based only on talking to the driver who is still at the scene.   In all of these situations, the jury in the injury case could easily be misled by the charges the police officer made or by the outcome at traffic court.[2]

About the Author: Dave is an car accident lawyer in Richmond VA. He is experienced in handling cases ranging from bike accidents to car accidents to premises liability.

Mechanicsville Car Accident Attorney

Author: Attorney Christopher A. Meyer

Most people know that their motor vehicle insurance policy covers them for accidents due to their fault when they are driving the car on the policy.  Many of us also sometimes  drive someone else’s car.  Do you know whether, when you are operating someone else’s vehicle, you are covered by either the insurance on that car or by your own insurance at home on your car – or both?

Under Virginia law the answer is almost always both, provided that the driver has the permission of the owner.  If I own a car, I will of course be covered by my insurance when I am operating it.  But if I lend the car to another person, they will be also be covered because the insurance policy covers “any person…using…said automobile…with the express or implied permission of the named insured and within the scope of such permission.”  And they will be covered by their own insurance, too, on top of mine.

The limitation that the use of the vehicle must be “within the scope of such permission” simply means that if I loan my car to a friend to go to the store and get me a six pack of Diet Pepsi, and instead the friend decides to go on a jaunt to Florida for Spring Break without telling me or asking my permission, then the friend will not by covered by my automobile insurance policy on that trip as he has exceeded the scope of the permission I gave him.

My friend’s own insurance policy will not cover him either in that circumstance.  When driving a vehicle that is “non-owned” as my car would be to my friend, my friend is covered by his own policy only “… while using such automobile, provided his actual operation…is with the express or implied permission or reasonably believed to be with the permission, of the owner and is within the scope of such permission.”  When my friend, who has been given permission to go to the store and get me some diet drinks, instead heads for Florida then he has exceeded the scope of the permission I gave him and will not be covered by his own policy either.

What is I loan my car to a friend and the friend then loans the car to a third person.  Does my policy cover my friend’s friend (the third person)? Does the third person’s own policy also cover him driving my vehicle?  In short, does the friend have the right to give permission to drive a car he doesn’t own but has borrowed?  In Virginia the answer is generally yes.  For many years, Virginia law said that a person who borrowed a car could not give greater permission than he had.  So if I lent my car to a friend but told the friend that he could not lend it to anyone else, then if he did lend then the third person was not covered even though the third person didn’t know I had given my friend only limited permission to use the car. However, a few years ago Virginia law was changed to state that if the third person reasonably thought he had permission of the owner, then he was covered even if the person who lent it to him had been forbidden to lend it to anyone else by the owner. In other words, for purposes of being covered by the owner’s policy – and his own policy, the driver can rely for permission on the word of the custodian of the car.  For example, if a person owns a car and lets his son use it at college, and the son lets a roommate borrow the car, does the roommate’s own automobile policy cover him?  The answer is yes.

However, Virginia law on insurance coverage is very complicated and individual fact situations can change the answer to coverage questions.  The best advice is to make sure that you have the permission of the owner of an automobile before operating it.  That way you will be sure you are covered both under the owner’s policy and your own.  If you have any doubts about insurance coverage, consult an attorney.  At Allen and Allen, we have many attorneys who are very knowledgeable about insurance law.  One of our attorneys, W. Coleman Allen, Jr.,  has literally written a book on Virginia automobile insurance coverage, and many of our attorneys lecture regularly on insurance topics.

About the Author: Chris Meyer is a car accident attorney in Mechanicsville Virginia with the personal injury law firm of Allen & Allen. He has developed a reputation on the Virginia Rules of Professional Conduct and annually lectures on Virginia Legal Ethics. He also lectures regularly on recent decisions of the Virginia Supreme court.

Medical Malpractice Attorney Malcolm P. McConnell, III

Author: Attorney Malcolm “Mic” P. McConnell, III

Virginia was one of the first states in America to enact special protection for negligent health care providers at the expense of their victims.  In 1976, the General Assembly enacted a $750,000 “cap” on recovery in medical malpractice cases (Virginia Code Section 8.01-581.15).  Since its beginning, the “cap” has been increased and currently stands at $2,000,000.00.  Recent legislation will increase the cap by $50,000 per year for the next twenty years.

The “cap” does not limit meritless malpractice cases.  It affects only legitimate, meritorious, proven cases.  Moreover, the “cap” does not affect victims whose injuries are relatively minor.  Rather, the “cap” affects only those who have been profoundly injured by health care providers who have been proven negligent.  In Virginia, medical malpractice “reform” has created a privileged class of citizens who are not held accountable for the harm they cause to others.  The victims of that harm and the taxpayers bear the cost that flows from the special privilege granted to health care providers..

The rationale behind Virginia’s decision to protect negligent doctors from accountability has always been that doctors were reluctant to practice medicine in Virginia for fear of being sued, or that they could not remain in practice in Virginia due to prohibitively high malpractice insurance costs.  There have been accusations that doctors were withdrawing from practice, moving to other states, or scaling back on their practices (for example, obstetricians refusing to deliver babies and practicing only gynecology).  All of these arguments presuppose a traditional model of private practice physicians who practice alone or in small practice groups owned by the physicians themselves.  But this model is outdated.  And while any unfair laws should be reconsidered, it is especially important to reconsider unfair laws which are based on circumstances which are no longer true.

A New York Times article from last year (March 25, 2010) reported that as recently as 2005, more than two-thirds of medical practices were physician owned.  But by 2008, that share had dropped below 50%, and the drop has continued.  On November 8, 2010, The Wall Street Journal reported that 55% of physician practices were hospital-owned in 2009.  More and more practitioners are practicing in the employ of fewer and fewer entities, creating health care monopolies.

And it’s big business. Hospital Corporation of America (HCA), which owns local Richmond area hospitals including Henrico Doctors Hospitals and Chippenham/Johnston-Willis Hospitals, reported 2010 Fourth Quarter revenues of $7.736 billion and net income attributable to HCA Holdings, Inc. of $283 million, an increase of 30.8% over the same quarter the previous year.  HCA, like other large corporate health care entities, owns many physician practices and is expanding that market share.

I recently represented a young child who lost an arm due to hospital negligence.  That child will live a long life with only one arm.  But the compensation available for that tragic loss was arbitrarily limited by an unfair law which was passed before that beautiful child was even born.  Why should billion dollar corporations be insulated from liability while innocents suffer?

The circumstances have changed.  The “answer” no longer makes sense, if it ever did.  Time for a change.  Time to restore balance.

About the Attorney: Mic McConnell is a Richmond medical malpractice lawyer. With over 20 years of experience, Mic has handled challenging cases all over the state of Virginia in almost every medical specialty for over twenty years.

Mechanicsville Car Accident Attorney

Author: Attorney Christopher A. Meyer

On June 21, 2011, and effective immediately, the Virginia Supreme Court adopted a new provision in the Rules of Professional Conduct.[1] This amendment to the Rules changes the ethics in Virginia concerning conflicts of interest and potential new clients.

Under the old rules, when an attorney met with a prospective client and decided not to accept the case – or the prospective client decided not to employ the attorney – there was an ethical risk if later another person involved in the same matter came to the attorney and sought representation.  The concern was that the attorney may have learned something from the interview with the first prospective client that could be of advantage in representing the second prospective client, and might be used against the first client’s interests. For example, consider the driver in a truck wreck approaching an attorney with a personal injury law firm such as Allen, Allen, Allen & Allen to represent him.  If that truck driver was at fault, the lawyer might turn down his case.  Later the person the truck driver hit might contact the lawyer, and the lawyer would like to represent that person and handle their truck crash case.  However, under the old Rules, if the truck driver had told the truck accident lawyer any confidential information, that attorney was forbidden to represent the second prospective client.

Furthermore, the Virginia State Bar[2] adopted the position that if one attorney in a firm was “conflicted out,” all attorneys in the firm were forbidden to undertake that employment. Thus, if an attorney was forbidden to handle a case due to the conflict described above, then every attorney in that law firm was also forbidden to represent the second prospective client.  The situation could be addressed only if all of the potential parties agreed to waive any conflict – an understandably rare occurrence.

However, the “Chinese Wall Rule” used by other states offers a solution to this conflict.  If one attorney in a law firm obtained confidential information from a possible client and did not end up representing that potential client, then another attorney in the same firm could represent the second client under one condition;  the attorneys could not discuss the matter or have any access to any of the information the first attorney received from the potential client, and the conflicted attorney could not work on the case or communicate with the other attorneys on that matter.

With the adoption of new Rule 1:18(d)(2), the Virginia Supreme Court has adopted the  “Chinese Wall” approach.   Now, so long as he is strictly screened from any work on – or contact with attorneys working on – the case, a conflicted attorney will not prevent other lawyers in the firm from representing an alternate party involved in the case.  Also, written notice of the screen must be sent to the former prospective client as soon as practicable.

If a prospective client sends confidential information to an attorney in a situation where the prospective client could not reasonably expect confidentiality or privacy, then the Comments[3] to Rule 1:18 state that the conflict rule does not apply so that a “Chinese Wall” does not need to be created.  For instance, if a potential client discusses their legal problem in a loud conversation with friends at a cocktail party, and one of the friends happens to be a lawyer, then this conversation does not create any reasonable expectation of privacy or confidentiality by the prospective client, and the conflict rule does not apply.  Similarly, if a lawyer’s website has a disclaimer stating any information sent will not be treated confidentially, then if a prospective client sends information before a confidential relationship is established, then the prospective client has no reasonable expectation of privacy and again the rule does not apply.

Comment 5 to the new Rule gives attorneys another method for preventing themselves from potentially being conflicted.  When first meeting with a prospective client, an attorney can draft a document telling the client that any information the client provides during the meeting will not stop Virginia attorneys & law firms from representing someone adverse to the client. The document also informs the client that anything he or she says can be used by the lawyer in a suit against the client.  If the prospective client agrees, this document will be valid and absolve the lawyer of any potential conflict.  As a practical matter, however, it’s unlikely that an attorney would do this except perhaps in a commercial matter.  In a personal injury matter, most clients would be troubled and confused by an attorney who asked them to waive confidentiality in the first meeting, and most attorneys would never ask for this.

In short, the ethics rules in Virginia have changed to make it easier for a lawyer to avoid the conflicts prohibitions in interviewing potential new clients.

About the Author: Chris Meyer is a car accident attorney in Mechanicsville Virginia with Allen & Allen. He has developed a reputation on the Virginia Rules of Professional Conduct and annually lectures on Virginia Legal Ethics. He also lectures regularly on recent decisions of the Virginia Supreme court.