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A. Inability of Public Lands to Meet DemandUnfortunately for modem day outdoor enthusiasts, federal, state, and local efforts toacquire more recreational land have not kept pace with public demand. Many of our state andnational parks suffer from overuse and their natural resources are being seriously degraded.6To protect fragile plants and wildlife, public access to national parks such as Yellowstone, Teton,and Yosemite has been curtailed.In addition, much of the public land is concentrated in the western U.S. and is not easilyaccessible to many Americans. There are approximately 746 million acres of public land in theU.S., of which 691 million acres are owned by the federal government. But only 8 percent of thepublic land is in the eastern U.S.7B. Private Lands Opened to Public (Reasons)The obvious solution to the lack of public land for recreational use is for outdoorenthusiasts to find private landowners willing to grant recreational users access to privateproperties. Even though urban expansion annually consumes an estimated 1.5 million acres ofagricultural land, and the U.S. is annually losing 400,000 acres of wetlands,8 there is still anestimated 1.28 billion acres of private rural land in the United States. Of this acreage, just lessthan 37 percent lies in the east.9It is estimated that nearly all agricultural lands and 64 percent of rangelands areprivately owned. In addition, 71 percent of the total U.S. forest land is owned by privatelandowners or private industry. Private rural land in the contiguous United States makes upmore than 60 percent of the nation's total land area. As a result, a high percentage of the 141million Americans who participate in outdoor recreational activities must rely on private landsand the natural resources they afford.10But why would any landowner permit other persons to use his or her property forrecreational purposes, especially when some of those persons are total strangers? Threereasons commonly come to mind when answering the question of why landowners permitpublic access to their property.1. HospitalityFarmers and ranchers are known for their hospitality and willingness to share withothers. Most farmers and ranchers are justifiably proud of their properties and do not mindsharing some of the pleasures of rural life with those who often do not get a chance toexperience them.112. State Promotional ActivitiesAs the United States has become a more urban society, there are less and less rural areas to beenjoyed. Yet, with an increasing population and the desire of many persons to get away fromthe hectic pace of city and suburban life, many states have actually encouraged landowners toopen up their properties to recreational uses. To encourage landowners to permit suchrecreational uses, state legislatures have passed recreational use statutes promising8 Kaiser & Wright, supra note 5, at 478.9 H. Ken Cordell et aI., Trends in Outdoor Recreation and Implications for Private Land Management in the East, inPROCEEDINGS AND INVITED PAPERS: NATURAL RESOURCES INCOME OPPORTUNITIES ON PRIVATE LANDSCONFERENCE (Jonathan S. Kays et at. eds., 1998), at 4.10 Id. at 4.11 When a farmer or rancher permits the recreational use of their land, they rarely ever consider the possibility ofan accident and subsequent lawsuit.10landowners immunity from lawsuits when recreational users are accidentally injured wlile on alandowner's property.3. Monetary GainFarmers and ranchers often open their properties to recreational users because, as landowners,they need the additional revenues generated by those persons who pay for the privilege ofcamping, hunting, fishing, sightseeing, or other recreational activities on private lands.For many farmers and ranchers, the extra revenue generated by recreational activitieson farm and ranch land means the difference in economic survival. This is especially true inmany Western states where the uncertainty of cattle revenues has prompted many ranchers toget into the tourism business.12For many farmers and ranchers, the extra revenue generated by recreationalFinancial margins have traditionally been tight for western ranchers and many of themhave held second and even third jobs in construction, mining, or the oil business to financiallysurvive. But, as those sources of additional revenue have been scaled back, ranchers have beenforced to turn to tourism for additional dollars.13 The additional money from tourism activitiesnot only helps to pay bank loans, but helps to subsidize paying for repairs to ranch buildings,reservoirs, and fencing.1412 Doug McInnis, Ranches Add Tourism to Raising Cattle, N.Y. TIMES, Dec. II,1994, atY38.13 Id.14 Id.Commentary: Monetary GainU.S. citizens spend a substantial amount of money on wildlife related recreation. In1996, 77 million Americans participated in hunting, fishing, or wildlife watching.The sum of the individuals involved in hunting, angling, or wildlife watchingactually exceeds 77 million because many people participate in more than oneactivity. It is estimated that expenditures for trips and equipment for theseactivities exceeded $100 billion in 1996. David G. Waddington, Wildlife-AssociatedRecreation in the US: Results from the 1996 National Survey of Fishing, Hunting,and Wildlife-Associated Recreation and What It Tells Private Landowners, inPROCEEDINGS AND INVITED PAPERS: NATURAL RESOURCES INCOMEOPPORTUNITIES ON PRIVATE LANDS CONFERENCE (Jonathan S. Kays et al. eds.,1998 at 53-4).11The types of tourism activities conducted on ranches vary greatly. Some ranches offerhunting and fishing trips with food and lodging available. Some ranches permit guests toactually work on the ranch. These paying guests perform a number of chores, including movinglivestock for 10 to 12 hours a day.15What is true for the farmers and ranchers in the Western states is true for farmers andranchers throughout the United States. Some landowners have opened bed and breakfastoperations on their properties while others have gone so far as to open restaurants where oldstyle country home cooked meals are the main offering. After a hearty meal, guests arewelcome to tour the property and see a working ranch or farm in operation. Farm animals inparticular fascinate children and adults alike, as do other common farming elements such asbarns and farm equipment.U-pick or direct marketing operations are also extremely common for farmers who ownfruit orchards and berry farms. Consumers can purchase fruit and berries already picked by thefarmer and available at the farmer's fruit stand or, at a cheaper price, consumers can enter theorchards and fields and pick their own fruit. Traditionally, farmers furnish the consumerswhatever equipment is needed, such as gloves, buckets, and ladders. For farmers, U-pick ordirect operations have the dual benefits of reducing labor costs while generating revenues.Consumers get to select their own fresh fruit while engaging in a recreational outing, althoughfor some the outing can be very strenuous.Having delivered a number of lectures on the liability issues associated with U-pick ordirect marketing operations, I can personally attest to the growing popularity of such activities.I have also endured the pleasures of picking strawberries, blueberries, and apples at suchoperations.In a few instances farmers and ranchers have opened day care centers for children.Personally, I doubt that this qualifies as a recreational activity, except for the children. But giventhe alleged scarcity of quality day care centers in the United States and the growing trend oftwo-income families, it is hardly surprising that rural families are encouraged to open day carecenters to generate additional income to support farming operations.15 Id.12I am sure there are many other recreational activities conducted on private farm andranch lands which I have not mentioned. But any recreational activities conducted on privateproperty have two things in common: (1) the possibility of generating additional income tosupport the farm or ranch; and, (2) the possibility of a liability action being commenced againsta property owner because of bodily injury to a recreational user of the property.II. DUTY TO PROTECT LAND ENTRANTSA. Dangers to Land EntrantsAgriculture is a hazardous business, as any farmer or rancher can attest. In 1992, therewere 1,200 agriculturally related deaths in the United States and an additional 140,000 seriousinjuries.16Naturally, recreational users can be exposed to some of the same risks to which farmersand ranchers are exposed on a daily basis. Some agricultural operations are chemicallyintensive operations and recreational entrants may be inadvertently exposed to harmfu1levels16 1994 U.S. Statistical Abstract.Commentary -AgritourismThe use of farm and ranch lands for recreational use has become so popular thatnew terms, such as agritourism and agritainment, have been coined. Farmers andranchers are limited only by their imaginations in the use of their lands forrecreational activities. Some landowners have even created giant mazes in theircornfields and have charged people for the "fun" of negotiating their way throughthem, as well as for food and drink.Commentary - Additional Resource on LiabilityThe following is a brief description of the liability issues associated with therecreational use of private land. A more detailed explanation can be found in theNATURAL RESOURCES MANAGEMENT AND INCOME OPPORTUNITY SERIES: LEGALISSUES, a joint publication of the NCALRI and the West Virginia University ExtensionService. A copy of the publication can be obtained from the National Center forAgricultural Law Research and Information, Robert Leflar Law Center, University ofArkansas, Fayetteville, Arkansas 72701, or call(NNN) NNN-NNNN13of pesticides or herbicides. There is also the possibility that some recreational users may haveallergic reactions to even relatively low levels of pesticides or herbicides.17Animals, of course, can injure recreational entrants. A recreational user could be thrownfrom a horse or run over by an animal that has escaped from an enclosure. Arid there is thenightmare situation of a landowner owning a vicious animal which attacks and injures arecreational user.18Modern agriculture is also highly mechanized. The use of heavy equipment can pose arisk to land entrants and even idle equipment, such as a bulldozer with a blade on it, can resultin injury to the unwary land entrant.19Even the land itself can pose risks to someone using the property recreationally. Holes,ditches, and waste pits that are familiar to the landowner can represent a real threat tosomeone who is hunting or fishing on the land or engaged in any other recreational activity.Finally, there is also the risk of a recreational user being intentionally or negligentlyharmed by a landowner's employee. If the injury occurs during the course and scope ofemployment, the landowner can be held vicariously liable for the employee's actions.20B. Causes of Action Against LandownersAny of the foregoing exposures may result in physical injury to a recreational user of thelandowner's property. When a land entrant is injured during recreational activities, there is thestrong likelihood of a lawsuit being filed by the injured party against the landowner.The landowner will be accused of having committed a tort against the land entrant. A"tort" is simply a wrongful act, injury, or damage, other than breach of contract, for which acivil action may be brought.21The types of damages the injured party is likely to seek include compensation for thephysical injury itself, compensation for pain and suffering, emotional distress, medicalexpenses, and lost wages. In cases of death, a wrongful death action may be filed. The17 JOHN D. COPELAND, NATIONAL CENTER FOR AGRICULTURAL LAW RESEARCH AND INFORMATION,UNDERSTANDING THE FARMERS COMPREHENSIVE PERSONAL LIABILITY POLICY: A GUIDE FOR FARMERS,ATTORNEYS AND INSURANCE AGENTS (1992), at 12.18 Id. at 3.19 Id.20 Id. at 3-4.21 LEWIS E. DAVIDS, DICTIONARY OF INSURANCE, 7TH ED. (1990).14landowner may also face claims from family members for loss of companionship. These are justsome of the typical claims that can be made in such cases. The types of tort actions possibleagainst a landowner include strict liability or negligence.1. Strict LiabilityStrict liability is often referred to as liability without fault. Strict liability is based on thesocietal judgment that those who expose the community to a dangerous risk must bear thefinancial responsibility for any resulting damage, even while acting with the utmost care.Because the probability of harm is so great, the burden of loss must be shifted to the one whocreated the danger.22A good example of the application of the doctrine of strict liability is injuries caused byan animal with vicious or dangerous propensities. If a landowner is in control of an animal withsuch propensities, and the landowner has knowledge of the propensities, then the landowner isstrictly liable for any injuries caused by the animal.23Examples of vicious animals for which land, 'ners have been held strictly liable whereinjury resulted include: a camel addicted to biting people,24 a bull with a tendency to chargepeople,25 and, of course, a dog with a tendency to attack people.26 An animal need not bevicious for strict liability to apply. Injuries inflected by a dangerous animal (which is one likely toinflict serious damage) can also result in a strict liability case. In one case a landowner was heldstrictly liable because he owned a dog which had a habit of playfully jumping on people. Thedog's size and power made the animal dangerous to others.27Obviously, the doctrine of strict liability has broader application than just animals ownedby a landowner. The doctrine applies to any situation or circumstance where the exposure toinjury is abnormally great, such as the storage of explosives or hazardous chemicals.2822 Charles L. LeCroy III, Tort Liability of Agricultural Landowners To Recreational Entrants: A Critical Analysis, 11 U.C.DAVIS LAW REV. 367, 389 (1978).23 Id. at 388.24 Id. at 389, n. 59, citing Gooding v. Chutes Co. 155 CaL 620, 102 P. 819 (1909).25 Id., citing Clowdis v. Fresno Flume & Irrigation Co., 118 Cal. 315, 50 P. 373 (1897).26 Id. at 389, n. 60, citing Hicks v. Sullivan, 122 Cal. App. 638,10 P.2d 516 (1932).27 Id. at 389, n. 62, citing Hillman v. Garcia-Ruby, 44 Cal.2d 625, 283 P.2d 1033 (1955).28 J.D. LEE & BARRY A. LINDAHL, MODERN TORT LAW: LIABILITY & LITIGATION, § 3.15 (Rev. Ed. 1988).152. NegligenceFortunately for landowners, most tort actions are not based on strict liability, but uponnegligence. Negligence is the failure to do what a reasonably prudent person would ordinarilydo under the same or similar circumstances of a particular case, or doing what a prudentperson would not have done. Negligence may be caused by acts of omission, commission, orboth.29 A claim of negligence involves three elements: (1) a duty owed to another person; (2)breach of that duty; and (3) injury caused to the person as a result of that breach.In cases involving land entrants, the critical question for the landowner is often the levelof duty owed to the land entrant, because the level of duty determines whether a breach of theduty has occurred. Farmers and ranchers are not liable merely because someone is injured ontheir premises. Traditionally, the common law has divided property users into three categories.The duty owed by the landowner to the injured person depends to a large extent on whetherthe person on the premises is a trespasser, licensee, or invitee.c. Status of Land EntrantsThe three land entrant categories of trespasser, licensee, and invitee have beenrecognized in the United States since 1865.30While most states judge a landowner's duty inaccordance with these three categories, some states have begun to abandon these distinctionsin favor of a single reasonable care standard.1. TrespassersA trespasser is one who enters or remains upon the land without the landowner'sconsent. An example of a trespasser would be one who hunts on a landowner's propertywithout permission or simply hikes across the property without permission.31 A trespasser isalso one who enters upon a landowner's property to commit a crime, such as theft.The duty of care owed by the landowner to a trespasser is slight, but it is not non-existent. Theduty also varies depending upon whether the trespasser is an adult or child.29 DAVIDS, supra note 21.30 Sweeny v. Old Colony & Newport R.R., 92 Mass (10 Allen) 368 (1865).31 RESTATEMENT (SECOND) OF TORTS § 329 (1965).16a. Trespassers in GeneralA landowner cannot intentionally injure a trespasser and cannot use more force than isreasonably necessary to eject him from the property. The landowner also cannot engage inconduct which recklessly endangers a trespasser, even if the trespasser is engaged in criminalconduct. In Kato v. Briney32 a farmer who became frustrated with trespassing thieves who keptbreaking into an uninhabited house on his premises rigged up a 20-gauge spring shotgun. Atrespasser, who was injured by the discharging shotgun when he broke into the house, sued thefarm owner for the injuries the trespasser received. A jury returned a verdict in favor of thetrespasser for $20,000 in actual damages and $10,000 in punitive damages.33Another example of reckless endangerment would be the stretching of a cable or pieceof rope across a path used by trespassing dirtbikers or four wheelers. If the obstruction weredifficult to see it could be viewed by a court as an act of reckless endangerment.What a landowner must understand is that the law places a greater emphasis on thesafety of human life than it does on the protection of private property. In fact, if a landownerknows that a trespasser is upon the property and that a dangerous situation exists that couldinjure the trespasser, such as a bull that has a tendency to attack people, then the landownerprobably has a duty to warn the trespasser of the danger. In such a situation, it is even possiblethat the landowner's failure to act could be viewed as a matter of strict liability rather thannegligence.b. Child TrespassersWhere a child is a trespasser, a landowner may be held liable for the trespasser'sinjuries in a situation where the landowner would not have been liable if the trespasser hadbeen an adult The law recognizes that children do not possess the same judgment as adults,and the younger the child the greater the landowner's obligation to safeguard a trespassingchild against injury.Several legal theories have developed to clarify a landowner's obligation to trespassingchildren. One is the attractive nuisance theory. Children are naturally curious. There are manyobjects on rural property to attract the interest of children and to encourage children to32 183 N.W.2d 657 (Iowa 1971).33 Id.17explore them to satisfy their curiosity. Examples of attractive nuisances include barns, farmmachinery, animals (especially young animals), and farm ponds.As to farm ponds, however, some courts distinguish between natural and artificialbodies of water, with only man-made bodies of water constituting attractive nuisances. Anatural body of water on a landowner's property can become an attractive nuisance, however,if the landowner adds some artificial improvement to it, such as a floating fishing dock, bridge,or diving board. Fortunately for landowners, a number of states refuse to apply the attractivenuisance doctrine to any bodies of water.Instead of applying the attractive nuisance theory to trespassing children, some statesapply the rule found in section 339 of the Second Restatement of Torts. Section 339 providesthat a landowner is liable for physical injury to a trespassing child caused by an artificialcondition upon the land if: (a) the place where the condition exists is one upon which thelandowner knows or has reason to know a child is likely to trespass; (b) the condition is onewhich the landowner knows or has reason to know will involve an unreasonable risk of death orseriously bodily harm to the child; (c) the child's age is such that she or he cannot discover thedangerous condition or risk involved; (d) the utility to the landowner of maintaining thecondition and the burden of eliminating it are slight as compared with the risk to the childinvolved; and (e) the landowner fails to exercise reasonable care to eliminate the danger orotherwise protect the child.34Most states have adopted either the attractive nuisance doctrine or the Restatementrule. A few states apply the usual common law trespass rules to both children and adults.352. LicenseesThe second category of land entrant is the licensee. The licensee is a person who entersupon the land with the landowner's permission, but for th· licensee's own purpose or businessinterest instead of the landowner's interest. Social guests and unsolicited sales persons areexamples of licensees.34 JOHN C. BECKER, ET AL., WEST VIRGINIA UNIVERSITY EXTENSION SERVICE, LEGAL ISSUES (Anthony Ferrise &William N. Grafton eds., Natural Resources Management and Income Opportunity Series, R.D. No. 744, 1990), at18.35 Id.18A hunter permitted to hunt on property without paying the landowner a fee is also alicensee. Property owners need to remember that in some states the failure to post landagainst hunting constitutes implied permission for anyone to enter the property for huntingpurposes and such a person is also a licensee.36Landowners owe licensees a higher duty of care than that owed to trespassers. Besidesrefraining from intentionally injuring a licensee or recklessly endangering a licensee, thelandowner must take measures to warn the licensee of any dangerous conditions on the land.37This is especially true for concealed dangers about which the landowner has knowledge. As ageneral rule, however, the landowner is under no obligation to inspect his or her property todiscover concealed dangers previously unknown to the property owner and then warn aninvitee as to those discovered dangers.Traditionally, landowners have been generous in permitting licensees to enter uponprivate property for recreational purposes. However, with the increasing threat of litigationfrom licensees injured during recreational activities, there has come a great reluctance on thepart of landowners to freely permit the recreational use of private property. Recreational usestatutes, which are explained in Section III of this publication, have been passed by anoverwhelming majority of states to encourage landowners to open private lands to recreationaluse.383. InviteesIt is to the third category of land entrants, invitees, that landowners owe the greatestduty of care. An invitee is a person who comes onto the land at the express or implied invitationof the landowner for the landowner's financial benefit. A landowner who charges a fee for therecreational use of his or her property, such as hunting, fishing, or camping, or who chargesentrants a fee to pick fruit, or runs a bed and breakfast operation, or conducts any other type ofrecreational activity for a fee, owes special legal duties to his or her invitee.3936 John J. Rademacher, Protective Legal Measures and Concerns of Private Landowners, in LEGAL ISSUES, supranote 34, at 37.37 Id.38 Id. at 38.39 Id.19An invitee enters upon the land with the implied representation that the landowner hastaken reasonable care to make the premises safe for its intended recreational use. In makingthe premises safe for recreational use, the landowner must take into consideration the natureof the land, the use to which it will be put, and the nature of the person who will be using thepremises.40The landowner must not only warn the invitee recreational user of known concealeddangers, but carefully inspect the premises for dangers currently unknown to the landowner. Inresponse to these dangers, the landowner must eliminate the dangers, or if elimination isimpossible, clearly mark the dangers or make them inaccessible to an invitee, depending on thenature of the recreational use and the invitee.41For example, a landowner who charges hunters a fee for hunting on the property wouldneed to inspect the premises for any holes or precipices on the land not likely to be readilyapparent to a hunter intent on finding game. Adequate warning signs would need to be postedas to such hazards and it might even be necessary to make certain parts of the propertyinaccessible to recreational users.A landowner who charges land entrants a fee to come onto the property to pickproduce would need to warn the entrants of any recent use of chemicals, such as pesticides,that could be hazardous to an entrant's health, especially if there is the possibility that anentrant might be allergic to certain chemicals. Again, a landowner would probably need to postwarning signs as to the type of chemical used on the property and what date it was used. Someareas would probably need to be made inaccessible to land entrants.If the landowner furnishes equipment to recreational users, such as ladders to fruitpickers, then the landowner has a duty to make sure that the equipment is safe and adequatefor its intended use. The landowner not only needs to conduct his own activities in a safe andreasonable manner, but needs to make sure his or her employees do the same.4. Reasonable Care StandardSome jurisdictions have now abandoned the common law distinctions between theduties of care owed to entrants by landowners. Instead of applying different standards of care40 Id. at 39.41 Id.20based on an entrant's status, courts in some jurisdictions apply a single standard of reasonablecare under the circumstances.One of the earliest jurisdictions to abandon the common law treatment of trespassers,licensees, and invitees was California. In the influential 1968 case of Rowland v. Christian,42 theCalifornia Supreme Court articulated the single standard of reasonable care.The single standard of care follows ordinary principles of negligence. Whether alandowner is liable for injuries suffered by an entrant depends on the foreseeability of theentrant's presence, likelihood and seriousness of the injury, and the landowner's burden ofavoiding the risk of injury. In determining the landowner's liability, all relevant circumstancesare taken into consideration, including the reasonableness of the landowner's actions and theinjured entrant's contributory negligence.43At least eight states (Alaska, California, Colorado, Hawaii, Louisiana, New Hampshire,New York, and Rhode Island) and the District of Columbia have abandoned the common lawdistinctions between entrants in favor of a single standard of "reasonable care under thecircumstances.”44In some states, such as North Dakota, courts have eliminated the distinction betweenlicensees and invitees, but have retained a lesser standard of care for trespassers.45Somejurisdictions, such as Illinois, have passed premises liability acts which abolish the distinctionsbetween invitees and licensees as to a landowner's duty.46III. RECREATIONAL USE STATUTES AND LAND ENTRANTSA. In GeneralA large majority of states have enacted recreational use statutes. These statutes givelandowners immunity from personal injury lawsuits filed by persons negligently injured on theland so long as certain statutory conditions are met. To qualify for immunity under a42 69 Cal.2d 108, 70 Cal. Rptr. 97, 443 P.2d 561 (1968).43 33 ARK. L REv. 194 (1979).44 XXXXX XXXXX, Outdoor Sports and Torts: An Analysis of Utah's Recreational Use Act, 47 UTAH L REV. 47, at n. 16(1988).45 Id. at note 17.46 See Northrup v. Allister Constr. Co. 163 Ill. App.3d 221,114 Ill. Dec. 431, 516 N.E.2d 586 (1987).21recreational use statute, a landowner must have permitted the injured party free access to theland for recreational purposes.47Recreational use statutes have been attacked on the constitutional grounds of denial ofequal protection, denial of equal access to the courts, and denial of due process. In everyinstance, the courts have upheld the statutes' constitutionality.In claims of equal protection violations, the courts have held that recreational usestatutes do not affect a suspect class or fundamental right. As a result, recreational use statutesneed only be rationally related to a governmental purpose. The opening up of private lands togeneral public recreational use by means of granting landowners limited liability is a rationalmeans of achieving a legitimate stated objective.48Also, recreational use statutes do not restrict access to state courts or deny injuredpersons due process of law. Although the right of redress for injury is constitutional in nature,the compensability of a specific injury is derived from state common law. Recreational usestatutes merely redefine the injury or class of persons to which the constitutional right ofredress attaches.49B. Model ActsMany recreational use statutes are patterned after the Council of State Governments' 1965Model Act.50Other states pattern their laws after the 1979 Model Act proposed by the NationalAssociation of Conservation Districts, the International Association of Fish and WildlifeAgencies, the National Rifle Association, the National Wildlife
1. Yes. you can add a claim but you have to notify the other side; get medical reports on those claims; give the other side the opportunity to examine you (they're entitled to that); explain to the mediator, you need an adjournment because of new claims.
2. The only way to combat this is getting an analysis and report from a reconstruction expert yourself ABSOLUTEY ESSENTIAL. Just google OK reconstruction experts and you'll find dozens with resumes. Interview a few. Make sure they feel strongly about your position and strong provable positions as to why the other expert is just plain wrong.
3. You don't need cases. You have to prove:
1. Cost of past care.2. Cost of and need for future care.3. Permanency of the injury, if any, AS ESTABLISHED IN A WRITTEN REPORT FROM A MEDICAL SPECIALIST.4. Reduction in life expectancy.5. Reduction in work life expectancy. (but see below)6 The age and kind of work the injured person does.(but see below)7. Past and future work disability and lost wages.(but see below)8. Past and future pain and suffering.
4. I have had this hundreds of times in my long career. When there's a client in your position YOU MUST GIVE UP THAT CLAIM OR RISK IRS TROUBLE. No wording will get you around that. And if you ask for future earnings reductions due to your accident, they'll ask you what you made for wages for the past X years. And here we are back with the IRS problem.
5. Strategy: Order of testimony
a. you first
b. reconstruction experts
c. doctors saving the one who gives you the strongest opinions on the most serious injuries.
A great alternative:
Call the other driver first to testify as a hostile witness. Then you can ask him leading questions. If you need more help with that advantage, let me know.
NOTE: DON'T GET UPSET IF THE OTHER SIDE TRIES TO CONVINCE THE MEDIATOR THAT YOU WERE PARTIALLY RESPONSIBLE IF YOU GO BEFOR A JURY YOU NEVER KNOW WHAT CAN HAPPEN.
Please press 3 or 4 or 5 below so that I may get credit for assisting you. Please do NOT press 1 or 2 since that will result in a negative rating for mewhich you may not have intended. If you want further information or clarification, just ask before you give a rating.I ask you to be fair in your rating. For instance, in these actual examples , the expert should not have received a negative rating:1. A customer says "I ALREADY KNEW THAT".....but the expert didn't know what the customer knew or didn't know.2. A customer wants to hear "YES YOU CAN".....but the certified legal expert says "LEGALLY NO YOU CAN'T".3. The answer is short, but ACCURATE. A customer simply wants a longer answer.Thank you for reading this and for your consideration. I'm always ready to help further.rich
Forgive me for the mistake. Sometimes I get so busy helping customers who request me that I make an error.
First of all, that is a huge research project not really within the usual bounds of JA even though you posted a larger question amount than most,
Secondly, each case is decided on its own peculiar facts even in mediation when both sides are sizing each other up for trial. Each side in a mediation will portray its case as if it is 100% ironclad for it. But say I represented you. After the mediation, I then talk with you about how it went in an effort to discuss an offer if there is one or a mediator's recommendation if there is one. I would be totally honest with you despite what my attitude was in the mediation. I might have to say to you (just an example)
1. In reality, our reconstruction expert has better credentials, but theirs came off as more knowledgeable; explained things keeping in mind that he would be speaking to laymen at a trial; and frankly was more charming than ours.
2. You came off very straightforward and sympathetic ......but not overdone,,,,,no melodrama good job!
3. The other driver didn't come across as well as you, but nevertheless came off as a pleasant guy who would not appear to the jury as a liar.
4. 2 of their doctors were great but we had one who blew everyone away!
Maybe they would not have appeared in person and only their reports were given to the mediator, but I would have some kind of overall impression based on my experience to give you.
Is that response satisfactory? Is there anything else I can assist you with?
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