As experienced Buffalo personal injury attorneys, we have seen the results of many serious accidents caused by driver fatigue. Because of concerns about fatigue among drivers of large vehicles, the federal government has regulated the work hours for interstate drivers of commercial motor vehicles for many years. Following multiple fatal tour bus accidents this year, members of the U.S. Senate are now calling upon the Federal Motor Carrier Safety Administration to apply the same rules to commercial bus drivers.
The Federal Motor Carrier Safety Administration regulates both commercial truckers and bus drivers, but the regulations are not currently the same. In 2003, the Administration changed the required time-off hours between shifts for truck drivers from eight to ten hours. The bus industry lobbied against this change as financially detrimental to the bus industry and was granted an exemption.
Within a year after the change to truck driver hours, the number of truck accidents decreased by four percent nationally and driver injuries fell by 13 percent. The bus industry, however, continues to argue that bus drivers do not need this extra two hours of rest because they make more frequent stops than truck drivers and can rest during these stops.
The Senators sponsoring this change believe that the Department of Transportation could change the regulation under its existing authority without any change to the law being necessary.
If you have been injured in an accident with a truck or bus, we would be happy to help you. Please call us at716-542-544.
Buffalo personal injury lawsuits often revolve around proof that the plaintiff actually suffered an injury. This is particularly true in automobile accidents, where the law requires not just proof of injury, but proof of a serious injury as that term is defined under New York State law.
Generally, establishing such an injury requires objective medical evidence. This means that there must be an observable or quantifiable injury. The claim of injury cannot be based merely on the injured person’s complaints of pain. There must be something that the treatment providers can actually point to as the cause of that pain.
In cases involving, for example, a fracture, objective medical evidence can be relatively easy to provide. Many cases, however, do not involve such distinct injuries, and it can be quite difficult for the treating physicians to pinpoint the exact cause of a person’s pain. Such cases can be much more difficult to prove during a personal injury lawsuit.
If you have any questions regarding this topic, please feel free to call us at 716-542-5444.
Buffalo personal injury attorneys and their defense counterparts employ expert witnesses for a variety of purposes. Such experts include medical specialists, individuals trained in reconstructing accidents, and financial experts who can assist in determining future costs to the injured party. When a party intends to call an expert, the Civil Practice Law and Rules of New York State provide specific rules regarding sharing the expert’s information with the other party.
New York State Law requires the party employing an expert to identify, upon request of the other party, each person whom the party expects to call as an expert witness at trial. They must also disclose the subject matter on which the expert is expected to testify, the substance of the facts and opinions about which the expert will testify, the expert’s qualifications, and a summary of the grounds for the expert’s opinion.
While there is no specific time frame in which disclosure must be made, the courts will usually require disclosure of requested information well before trial so that the other party will have time to prepare for the expert’s testimony. Where a party, however, retains an expert without sufficient time before the commencement of the personal injury trial to give appropriate notice thereof and is able to demonstrate a good reason for doing so, that party is not precluded from using the expert’s testimony solely because of noncompliance with the disclosure requirement. Instead the court is directed to make whatever order may be just to ensure fairness to both parties.
For the jury to reach a decision in a Buffalo personal injury lawsuit, they will obviously need accurate medical information regarding the injury. While both the defense and the plaintiff in a personal injury lawsuit will usually present at least one medical treatment provider to explain their position regarding the injuries, the injured person has frequently treated with additional medical providers.
While information from these medical providers may be useful, requiring all of them to testify at trial would take a great deal of time and add to the expense of conducting a trial. It would also require all of them to take time away from their medical practice. When medical information from these providers would be helpful at trial but the testimony of the treatment provider is not essential, one, or both, of the parties may issue a subpoena duces tecum to that treatment provider.
This subpoena duces tecum is a legally binding request that documents be brought to the courthouse. Typically, instead of requiring an individual from the medical practice to testify regarding the authenticity of the records, the parties will accept a certification signed by the record keeper at the medical facility affirming that the records are complete and unaltered.
If you have suffered a personal injury and have any questions, please feel free to call us at 716-542-5444.
Generally, all relevant evidence is admissible in Buffalo personal injury lawsuits. In the case of physical evidence such as photographs, all that need be shown is that the document is authentic and is an accurate demonstration of what it purports to show.
Courts do not, however, have to admit all relevant evidence. In the case of photographs of an accident location, the defense may argue that if the photograph was not taken at the time of the accident, it does not accurately reflect the area at that time. If the photograph contains, for example, a patch of ice on a sidewalk where the plaintiff fell, the defense may present an argument that the photograph is misleading to the jury and may unduly prejudice the defense.
It is up to the trial court to decide based on the nature of the proffered proof and the context in which it is offered whether the value of the evidence outweighs its potential for prejudice. Admissibility in a personal injury lawsuit is left to the discretion of the trial court. In situations where the value of the evidence versus its potential for prejudicing a party is close, a court may allow the evidence but issue special instructions to the jury regarding how they are to consider the evidence or place additional restrictions on how the parties may use the evidence.
Most Buffalo personal injury attorneys have, at some point, dealt with an overly-aggressive insurance company. If you have suffered a personal injury and are even contemplating pursuing damages against the other party, you should absolutely avoid talking to anyone working for that party’s insurer.
While the agent for the insurance company may be asking you seemingly innocent questions regarding how the accident happened and your injuries, it should always be kept in mind that part of their job is to minimize the amount of money the insurance company is required to pay as compensation for your injuries. As a result, any statement you make that can be interpreted in a way that minimizes the other party’s responsibility for the accident or your degree of injury is likely to be used against you in the future.
If you are contacted and have an attorney, you should in all cases refuse to speak with the insurer and refer them to your attorney’s office. Most personal injuries attorneys will contact the other party’s insurance company shortly after being hired and inform them that they are no longer to contact you directly. The insurer is legally required to comply with this request, and most will do so. Occasionally, however, a particularly aggressive agent will continue to call. If this happens to you, inform your personal injury attorney immediately.
Subpoenas are commonly used in Buffalo personal injury lawsuits. A subpoena duces tecum is a particular type of subpoena. The phrase is Latin, and roughly translates as “bring it with you under penalty.”
The purpose of a subpoena duces tecum is to obtain documents that may be admissible as evidence and are under the control of the party being subpoenaed. Its use is not limited to the parties in the lawsuit, but instead extends to any party that may have documents relevant to the case. If, however, the party receiving the subpoena feels it is not required to provide some or all of the documents, or that the party that issued the subpoena is merely on a “fishing expedition” in the hopes of finding relevant evidence, it may request that the court not require compliance with the subpoena.
Subpoena duces tecum are used to obtain a variety of documents in personal injury lawsuits. Typical examples include medical records, maintenance reports and contracts.
If you have suffered a personal injury and have any questions regarding this topic, please feel free to call us at 716-542-5444.
It is not unusual for Buffalo personal injury attorneys to hire private investigators or other specialists to investigate the circumstances surrounding an injury. Whether the written materials prepared by that investigator must be disclosed to the other party depends on their purpose when prepared and the specific circumstances of a given case.
Civil Practice Law and Rules section 3101(d)[2] provides that “materials otherwise discoverable… and prepared in anticipation of litigation or for trial by or for another party, or by or for that other party’s representative (including an attorney, consultant, surety, indemnitor, insurer or agent), may be obtained only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of the materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions or legal theories of an attorney or other representative of a party concerning the litigation.”
Under this rule, an investigator’s notes would normally be considered material prepared in anticipation of litigation and therefore not discoverable unless the defense can demonstrate both a substantial need for the notes and undue hardship if they are not obtained. When this issue is disputed, the courts usually weigh the dispute on a case by case basis to determine what material must be disclosed in a personal injury lawsuit.
There are a variety of tactics that Buffalo personal injury attorneys may employ when preparing a lawsuit for trial. For particularly large or complex cases, this may include presenting the facts of the case to mock jury for their consideration.
Typically, conducting such a mock trial involves hiring people to act as jurors and hear the plaintiff’s case. The “jurors” are usually found by an outside company and will have no connection with the lawyers or the parties involved. Because a full, multi-day trial would be too time consuming and costly to go through as a practice for the actual trial, the personal injury attorneys will typically prepare a shortened version of their case which covers the main points or issues they feel may be especially problematical. The plaintiff may also be given the opportunity to testify, which gives them some idea of what the experience will be like prior to having to do so in the actual case.
Following the mock trial, the attorneys will receive feedback from the jurors regarding how they felt about the personal injury lawsuit and why they reached those conclusions. The attorneys may then refine their presentation based on this feedback prior to going before an actual jury.
In some Buffalo premises liability lawsuits, the defense will argue that the defect that caused the injury was “trivial” and therefore not actionable. This may occur, for example, when someone trips over a slightly uneven sidewalk or in a small pothole.
Basically, the defense is arguing that the defect that caused the plaintiff’s injury was so minor that the defendant could not be expected to take action to repair it. There is, however, no set rules regarding what actually constitutes a trivial defect. The mere fact that a pothole in a parking is not very wide or not very deep does not, in itself, make the defect trivial. Instead, the court or the jury must look at the totality of the facts presented – including size, shape, and visibility of the defect – along with the time, place and circumstances of the injury.
Whether a defect is too trivial to make the defendant liable for the injury is generally a question for the jury to decide.
If you have been injured by tripping over a defect on someone’s property, we would be happy to help you. Please call us at 716-542-5444.
