“Car Accident 101” Webinar with Avvo.com
GJEL Accident Attorneys Managing Partner Andy Gillin was recently invited by Avvo, a free, comprehensive legal website for consumers and lawyers, to host a live webinar “Car Accident 101,” to offer legal insight to drivers and passengers involved in vehicular accidents.
You can click “play” on the video at the left to view the webinar in its entirety, or simply read the transcript below. Andy is always happy to answer any additional questions, free of charge, at 866-218-3776.
Hello everybody; thank you so much for joining us today. My name is Megan Olendorf and I manage the lawyer 101 sessions here at Avvo. Today, as you know, we are going to be talking about accident 101, so with us to talk about Accident 101 is Attorney Andy Gillin.
Mr. Gillin is a personal injury attorney, he’s the managing partner at Gillin Jacobson Ellis and Larsen, which is a prominent firm located in Northern California. He has more than forty years of experience practicing law and is going to be resource for us today to answer your questions about accidents, and provide you with some basic overview information that is good for all of us to know.
Before I turn it over to Mr. Gillin I want to provide quick instructions here in terms of how this works. Mr. Gillin is going to provide, as I just mentioned, a brief overview and then you should see on your screen a question box. That is why we are here today: to take questions and to answer your questions, so please feel free anytime to write your question into the box and we will do our best to get to those questions and answer as many as we can in the time that we have today. Just so you also know, your identity will remain strictly anonymous so feel free to write in your questions at any point and we’ll get to them.
So with that, thank you again everybody for being here and I am going to now turn it over to Mr. Gillin.
Thank you very much Megan, and thank you all for joining us. My name is Andy Gillin, and I thought I would just tell you a little bit about my background and what brought me to being in this field. I graduated law school in the ‘60s, and like a lot of people in the ‘60s, I was interested in legal services for the poor and helping those who didn’t necessarily have a voice. So that’s exactly where my career started and I managed Berkeley Legal Services For the Poor for a couple of years in Berkeley, California.
I had gone to [The University of California] Berkeley [as an] undergraduate, so it was particularly nice for me to be back in my own community. Then I got hired by a former professor of mine who also had a law practice. One of his areas of law was representing people who were hurt in any kind of personal injury accident, whether it was an industrial accident, an automobile accident, etc. One of the things that to me was a continuation of being a legal aid lawyer, is traditionally if you hire a personal injury lawyer, you don’t need any money in advance. 99% of us, including myself work on a contingency–which means that we charge a percentage of what we collect on the case, but if we for some reason lose the case and are not successful, the client doesn’t owe us anything. It means essentially that a person with $5 in the bank can take on General Motors, just as an example. General Motors pays hundreds of thousands of dollars on lawyers and experts, but the individual doesn’t need to do the case. For me it is just a very satisfying way to practice law.
I thought I would discuss with you the steps I recommend a person takes immediately after an automobile accident. I represent people in different kinds of injuries, not just automobile accidents, but today that’s what we are going to focus on. I think it’s also useful to have a checklist you keep in your vehicle or something because a lot of times after a car accident, it’s a confusing time, a scary time, there may be shock involved, so its better to think these things through in advance.
Whether you ultimately hire a lawyer or do the case alone, I think the result will be better from a legal point of view if you’ve gone through these steps in advance.
I should note that people call me everyday about automobile accident cases.
Some of them decide to hire me and some of them decide to do the case on their own. And there are cases when I tell a person they will be better to do it on their own.
There are certain cases where we don’t really add much value and it really wouldn’t be in the average person’s interest to hire a lawyer.
There are other cases that are so complex or so challenging or where the stakes are so high that I recommend that person definitely hire a lawyer, whether me or someone else.
And then finally there are cases when it’s a toss-up, when it’s really a close call whether to do the case by yourself or hire a lawyer.
Even in a case where it’s a toss-up, I think it’s often good to just talk to a lawyer and get some free advice in advance; it’s something that I do for anyone who calls me. Because if a person for instance is thinking, “well maybe this is going to turn into a herniated disc in my neck, and this is going to be a life long injur,y and I’ll need a lawyer, but if I shake it off in a few weeks I’ll do it on my own,” that’s a perfectly intelligent thing to do…but I do recommend to people that during that period of time, when they’re trying to decide whether to do it on their own or hire a lawyer, that there are certain things they not do.
This is all part of my introduction, so if you don’t see this on the PowerPoint that explains why. I’ll get to the PowerPoint in a minute.
There are three things I suggest you don’t do while you are deciding whether or not to hire a lawyer:
- One is I do not recommend giving a statement to the other person’s insurance company.
- I don’t recommend letting them have their doctor look at you, and
- I don’t recommend that you give them a blanket authorization to get your medical records.
If a few weeks in to the accident you decide that you don’t need a lawyer and it’s a fairly routine matter, then go ahead and give them those things, they’ll need them to do their evaluation. But if you’re still deciding whether to hire a lawyer I suggest you not do those things, because one of the advantages of hiring a lawyer is he knows whether or not to do those things, when to do them, and how to protect you when you do them.
Now, moving in to the PowerPoint presentation, I’ll just make one other point, which is that any of you who are taking part in this today should feel free to shoot your questions in even as I’m in the middle of my PowerPoint. I enjoy questions; I like to know what my attendees are interested in so I can focus my remarks in that direction. So if you have any, just go ahead and fill in the box and give them to Megan. She’ll get them to me and I’ll interrupt my prepared remarks.
So, obviously the first thing to do is check for medical emergencies. Medical issues are far more important and far more primary than legal issues. If anyone is injured, whether yourself, a passenger, a pedestrian, a cyclist, a motorcyclist, or someone in another vehicle, the most important thing is to get medical help immediately. I always suggest to people that it’s a good idea to keep a first aid kit in your car, not only for automobile accidents, but if there’s a natural disaster, you can help yourself, you can help your family, you can give kindness to a stranger. That’s in addition of course to calling emergency medical services for those who need it.
The next item is to gather information on the parties involved. If the police are on the scene, you don’t have to do very much because they’re going to get your drivers license information, the other party’s etc. But if the police aren’t on the scene, probably the first thing you want to do, assuming that you or a friend or a passenger is medically able, is copy the other person’s drivers license number. Now basically 95% of people around are honest and straightforward, but probably in 5% of the cases I see, the other person pretends they will stick around and then they drive away, and it’s a hit-and-run accident. Depending on what state you live in, if you don’t have a drivers’ license number, you may be in a real problem with your own insurance company in terms of doing an uninsured motorist claim. In most states, if you’re hit and run by another vehicle, and if there’s property damage to your vehicle and you don’t know who that other vehicle is, you can make a claim under your own underinsured motorist claim under your policy. However, in some states, your insurance company will require that in order to make that claim, that you have a vehicle number for that other car. Most states it’s not required, but better to have it, obviously the other reason it’s better to have it is that obviously the other person can be identified and prosecuted for the hit and run, their insurance company notified, so you don’t have to deal with your own insurance company.
In almost all states, in order to make a valid claim for uninsured motorist coverage in a hit-and-run accident there does have to be a police report filed. Different states have different rules. California, for instance, requires that the accident is reported to the police within 24 hours. My own advice in a hit-and-run accident is to stay at the scene, report it immediately because the police are going to lose interest particularly if you’re in a metropolitan high crime area if someone calls them 16 hours later to report an accident that nobody’s seen, it’s going to be such a low priority that it may not even be properly recorded in the police files and the other party could take the position that it was improperly reported or never reported within the appropriate time.
So the next thing you want to do is exchange driver’s license and automobile insurance information with the other driver. You want to give them your drivers’ license number and insurance information and you want to get theirs. The only exception to that I would say is that if your instincts tell you that this is not a trustworthy person, not a person who you’d want to see your driver’s license, not a person who you’d want to know your home address, then just say lets get the police here, you give it to them and I’ll give it to them. But conversely, if everyone appears trustworthy and straightforward exchanging drivers license and insurance information is very good to do and really important to do.
Number three on the checklist is to check for witnesses near the accident. There may be someone on the gas station around the corner, assuming this happened at an intersection, who’s not particularly interested or particularly disinterested. If it takes the police 20 minutes to get there, and that person has filled up their car with gas and left, no one may ever be able to obtain the contact information for that witness.
So, if you’re in medical condition to do so, if you’re aware of anyone who witnessed the accident, talk to them, see if they’d be willing to give you their contact information, and just write it down and hold on to it. This is particularly helpful if you and the other driver disagree about what happened. But even if you don’t disagree, something that I see very frequently in my law practice is that there will be an accident, the person will say “I’m so sorry, I was on my cell phone, I wasn’t paying attention, I hit right in to the back of your car,” so you think “okay, this is a very nice and honest person, we’ll just go with that.”
I’m somewhat shocked at the frequency with which that same person three days later says “you know, now that I thought about it, they made a sudden stop, there was nothing I could have done.” My experience tells me that people tend to be much more honest immediately after the accident. So number one, it’s a very good reason to get the police there as soon as possible and to talk to the person yourself. You can’t stop anyone from changing their story as it were a few days later, but you certainly, if there are witnesses, can have an independent third party witness verify what happens.
One thing that is very useful to know both in a police report and in an ongoing claim, the people who judges and juries and insurance claims adjustors consider to be the most reliable after an accident are indeed third-party witnesses. Not you, not the other person, a lot of times there will be an accident at an intersection and a lot of people will say “I know I had the green light.” And both people will honestly believe that, which is exactly why the accident happened. But somebody is going to be wrong. If two people meet in the middle of an intersection, unless it happened that the lights were malfunctioning, probably one person didn’t have the green light. So the most objective person is not the two people involved in the accident, the most objective person is someone who had no stake in it, someone who was standing on the corner, who happened to be driving by and doesn’t know either person. So that’s why you want to find bystanders quickly before they wander away from the scene, ask them what they saw, and then get their contact information.
Mr. Gillin, we have a question about that actually. “By checking for witnesses, won’t the insurance companies think that you were planning to make the accident a pay day from the beginning?”
You know, it’s a very good question. I think that may have been true 30-40-50 years ago. But in today’s world, everybody’s pretty cautious, everybody’s looking for witnesses. Even if you’re not injured at all but there is $4,000 or $5,000 worth of damage to your car, the insurance company is going to assume that you’re going to want people to support you.
I’ve never had that experience. But let’s assume for example that that is a concern, or that one out of ten insurance adjustors is thinking, “oh, this person is trying to make this into a pay day.”
What I would offset against that in my own mind is, let’s say they think that but let’s say that if you never found that witness, then the accident would end up being a he-said-she-said. Whereas if you have the independent witness who says, “I saw it clearly and there’s no question about who ran the red light,” regardless of what the insurance adjuster thinks about your motivation, they also realize is here’s what really happened, we have an independent witness.
The other thing about a pay day is paydays don’t work in my experience. In other words, if there’s a very minor bump to a vehicle and there’s very little property damage and someone is claiming two years later, “my back is killing me,” the insurance company won’t believe it; a jury probably won’t believe it. Except in a rare case, let’s say someone who had a weakened back from a prior operation.
Conversely, if the impact is enormous, if you’re thrown out of the car, you have broken bones, or a concussion, nobody really is going to say you’re trying to make it in to a pay day, it’s going to be pretty clear. I think most people know whether the other person involved has a serious injury or a non-serious injury. But very good question, and one I appreciate. And if the questioner wants to follow up on that, just go ahead and put it back in the question box and I’ll be happy to keep discussing that issue.
Next I recommend that you document the scene. Now again, if it’s a serious accident and if the local police or highway patrol or state trooper is on-scene, they’re going to have a roll of tape, they’re going to take photographs, they’re going to document the scene. There’s no reason to do this.
But if they aren’t there, and if you’re in good enough shape and if there’s a dispute as to who’s at fault, then I think it is useful to sketch the accident scene on a sheet of paper. If I could just back up a little bit here, none of this may be necessary if it’s a very very clear situation. In other words, if there is an independent witness, and if there’s an admission made by the other driver to the independent witness who saw the accident, probably at that point you can probably assume that 99% of the truth will get out and you don’t have to be overly cautious.
But if it’s a situation where you’re medically stable enough to do all this then yeah, go ahead and sketch the accident scene on a sheet of paper, note and label the position of all vehicles, their direction, and any traffic control devices. You know, in today’s world where so many people have cameras on their phones, the simpler and easier thing is to get a photo of the scene, take a photo of the vehicle license of the other car, which is even better than writing down the vehicle license, although you can certainly do both because your camera isn’t going to get the license number wrong but you might write it down wrong.
The next thing is, when the police do arrive, you do want to discuss the incident with the police, for a number of reasons:
- Number one, you want the police to know your version of what happened.
- Number two, you want the police and later on the other person’s insurance company to note that you were being cooperative.
Every once in a while, I’ll handle the case where I know that either my client or the person on the other side refuses to discuss with the police what happened. This is extremely rare but people do it and it’s really not advisable because, back to the question of the individual earlier, talk about making it look like you’re trying to game the system or you’ve done something really wrong as if it’s a criminal type thing where you have the right to remain silent. It puts you at a disadvantage because the police becomes distrustful of you, your own insurance company does, and so does the other party.
- Additionally, and perhaps this is a really obvious point, what happens in this situation is there’s two versions of the accident, you don’t tell yours, the other person does tell theirs, the policeman wasn’t on the scene, he didn’t see it happening, so he writes up the report totally based on the other person’s version of what happened. Sometimes this is unavoidable, a number of the people I have represented are unable to speak at the time the police arrive, they may be unconscious in the most tragic situations, and they may have passed away.
So if there are no witnesses, the only person the police can speak to, or the only people that the police can speak to are the people in the other vehicle in the other vehicle who did survive and are conscious. In that situation, the police realize that they are only getting one side of the story and those cases are so severe that they’re not just going to do a five minute police report. They’re going to spend a few hours, they’re going to look very hard for witnesses, and they’re going to look at the vehicle damage itself.
And that reminds me by the way, one other thing you might do if you have a cell phone camera in addition to diagramming the scene is to photograph the damage to your vehicle and the damage to the other vehicle. In my law practice, I use a lot of accident reconstruction experts and one of the things they always need to know is where the damage is on the vehicles and exactly what it looks like.
Another thing they need to know is where the skid marks are if there are skid marks, and the length of the skid marks. This, too, is something you can do with your camera. If it’s a serious accident, the police will not only photograph the skid marks, they will walk them off or use their roller tape to more accurately note them and we will have a very specific notion of skid marks. And a talented accident reconstruction expert, by measuring skid marks, looking at damage to the vehicles, can estimate the speed of the vehicle at the time of impact and by backing up, they can estimate the speed of the vehicle at the time the vehicle first hit its breaks and began to skid.
Once you’ve gotten this far, the next question is do you or don’t you hire a lawyer? I touched on this at the beginning but I’d just like to say a few words on it now.
Part of it depends on the severity of the accident and part of it depends on the nature of the person. I have some people who call me, this just happened yesterday, fairly modest accident – the person was hurt but not terribly. I said to them, “You know, you could probably just do this yourself; you don’t really have to pay a lawyer a percentage.”
And they just said, “Look, I’m the kind of person who just wants it taken care of. I want to know it’s done right.”
Other people are just the opposite. They’d rather do things themselves, and that’s fine too, there’s no [right] answer. I think you’ll find that most personal injury lawyers will be happy to give you 10-20 minutes of their time to help you make that decision.
That doesn’t mean you have to take their recommendation. The lawyer might recommend you hire a lawyer and you decide not to or vice versa.
The other thing that I do, and a lot of other lawyers do is if it’s a case where the person definitely wants a lawyer but it doesn’t really fit my law practice: it might be a smaller case than I would typically handle. Then what I’ll do is give the person the name of three other lawyers in the geographical area from whom they can choose.
Sometimes it has to do with size of case, sometimes it has to do with specialty, for instance I have a number of subspecialties, I do a lot of head injury cases, paralysis cases, and death cases. I very seldom do medical malpractice cases regardless of the degree, unless it happens to be a very specific case that fits my skills. So if someone calls me about a medical malpractice case I usually will give them the names of two or three medical malpractice lawyers.
Well I think our time is just about up, and if anyone has any other questions I certainly welcome them. Otherwise, Megan, am I correct that we are close to the end of the half hour?
We are close to the end of the half hour, but if it’s okay with you, let’s wait to see if there are any more questions that come in from folks on the line. Again, if anyone has any questions now that we’ve gone through this overview, feel free to ask them by putting them into the question box on your screen.
It looks like we have a question here: “If someone has been drinking, although they haven’t drank enough to be legally intoxicated, if they get into an accident, does that affect whether they are at fault?”
Very good question and the answer is: yes, it does affect whether or not they are at fault. Different states have different blood alcohol levels for the legal limit. Many states have a blood alcohol level that they set at 0.08; some at 0.1. Let’s say that a person is at one half of that limit, which means maybe they just had a beer. Clearly nothing illegal criminally, however, it has a very distinct effect on the civil case, meaning the non-criminal personal injury case. The jury will hear about it, the judge will hear about it, the other insurance company will hear about it. And if there’s a dispute, for instance, as to who ran the red light and there are no witnesses, typically the assumption is going to be made that the person who had a beer is less likely to have noticed whether the light was green or red than the other person.
Okay. Next question here says: “You talked a lot about what to do with the police, how do you know whether or not you should even call the police in the first place?”
That’s a very good question. My suggestion is: if it’s a very minor accident, if you don’t want it to go on your record, the other person doesn’t want it to go on their record, everybody is trustworthy, that might be a reason not to call the police because in most states, even if an accident is not your fault, if you run your Department of Motor Vehicle[s] record six months later, it may not show a ticket for a violation, but it will show that you’ve been in an accident and that is not useful in terms of insurance rates.
So if it’s minor, nobody’s hurt and nothing bad is going to happen, I would say use your judgment and you and the other person may agree not to call the police. On the other hand, if you think the other person is going to be dishonest about what happened, then I think it’s important to call the police. If anyone’s injured, either you or the other person, it’s important to call the police. And what I mean by injured, not just a sore neck, is a significant injury. That is a judgment call. I personally would tend to call the police most of the time, but I know other people disagree and it’s really a personal decision.
Looks like we have a couple more questions. I was in a bad accident last week and spent the night in the hospital. The driver of the other car does not have insurance. How can I expect this to play out in terms of getting reimbursed in terms of the money that has been spent?
That is a very good question. Hopefully on your own insurance policy you have uninsured motorist coverage. I would say probably 80% of the people who I represent have uninsured motorist coverage. And you probably also have something called medical payments coverage. So let’s say that you have health insurance through Blue Cross Blue Shield Health Net, they’ll probably pay 80 to 90 percent of your medical bills. Then if you have the typical medical payments coverage on your own automobile insurance, which is anywhere from $1,000 to $5,000 you can get that from your own insurance company and use that to take care of your co-payments and use that to take care of your deductible. You are still entitled to be compensated for time off of work, pain and suffering etc. Check with your insurance company, if you are in the most likely 80%, you do have uninsured motorist coverage, your own insurance company either by doing it on your own or through a lawyer will make a claims payment to you under your uninsured motorist coverage and they will go after the uninsured person to collect whatever they paid out to you. Normally they won’t be able to collect but they try. Whether they do or whether they don’t does not affect your recovery, whether you buy that particular type of coverage for your insurance company to cover it.
Okay. Another question says: “I hit another car at an intersection, I was driving. It was my fault however I wasn’t driving that fast and the passengers in the other car who were hit were not wearing their seat belts. Are they at all responsible?”
Yeah, good question. And they are responsible. In every state in the United States, almost every state, there is what’s called comparative negligence. Sure, they’re responsible for your mistake, but they are responsible for not wearing their seat belt so typically the award they would have gotten will be reduced anywhere between 15% and 75% depending on the nature of the injury. For instance, if it’s a back or neck injury, it may be that it would have been similar with or without a seat belt. But to give another example, if they flew forward and broke their nose on the windshield they’ll get a very small recovery because that could have been prevented specifically by wearing a seat belt. You wouldn’t be absolved of all fault, but they would take some of the responsibility.
We have one more question here. It says: “I was at a stop sign and accidentally rolled forward and hit the car in front of me. We all got out of the car, exchanged information and everyone seemed okay. A few days later we heard that they were actually now claiming that someone was hurt in the accident due to the stress that was caused. There was an elderly passenger in the back seat. Where is all this coming from and what should I do about this?”
Another good question and one that comes up commonly. If by saying “rolled into another car at a stop sign” it means that they were hit at one or two miles an hour, typically your insurance company (who I’m sure is handling this for you) is going to be pretty skeptical of a claim three weeks later by someone who wasn’t hurt at all is hurt now.
However, when I heard in the question that it was an elderly person, this does occasionally happen, that an elderly person has a reaction either physical or emotional that a person of a younger age would not have. The good news is that it seems to me that if you heard this you heard it from your insurance company. They’re very expert at taking care of these things. I would guess that your insurance company would be fair with legitimate claims but would be tough with cooked-up claims or to quote someone from an earlier question, someone “trying to make a pay day.” It’s good to have insurance, good to have adequate limits–you can sleep at night and say to yourself, “wherever I bought insurance they will take care of it.”