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UnknownWhen asked the question whether there are more or less personal injury cases tried now as compared to ten years ago, most people will answer that there are more.  Insurance companies, large corporations, and some politicians have intentionally misled  the public that there is a litigation explosion in our country. Nothing could be further from the truth.

A recent New York Times article reported that numerous law journals have reported a decline in both civil and criminal jury trials nationwide. The Bureau of Justice Statistics has been tracking the number of civil trials in state courts since 1992. Their surveys show that the number of civil trials has declined by over 50% between 1992 and 2005.  Those numbers have continued to decline.

What are some of the reasons for this decline in jury trials?  Many cases are referred to arbitration.  If you look at most of the agreements you sign with credit card companies these days, the contracts frequently contain arbitration clauses.  This means that if you have a dispute with the credit card company, you cannot sue them in state or federal court. You must have your claim heard before a private arbitrator.  The courts favor these arbitration clauses and regularly enforce them, forcing clients to give up their right to a jury trial.

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UnknownI read an article in the New York Times this week which raised the interesting question about how reliable video tape evidence is in the courtroom.  As an Alameda personal injury lawyer, more and more of my cases involve video tape evidence of one type or another.  Frequently, in cases where someone has fallen in a grocery store, the falls are captured by video tape.  Often car accidents are filmed by roadside cameras or cameras located at nearby business establishments. The films can be problematic because the reality of what happened can be distorted by the camera angle and the speed at which the tape is played and reviewed.

The Times article points out the inherent dangers of playing back video tape in slow motion.  A study published in the Proceedings of the National Academy of Sciences, showed that decreasing the speed of the play back increased the possibility that someone’s action was intentional versus a spontaneous reaction. In legal jargon, a slowed down video tends to make the action appear to be more premeditated.

Focus groups were shown a video of an armed robbery and shooting at a grocery store. They were asked to assess whether the shooting was premeditated or not.  The video was shown in slow motion to half of the group and at regular speed to the other half.  Those who watched it in slow motion felt the shooter had more time to act, and hence more culpability, than those who watched the film at regular speed.

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Caitlyn Jenner in May speaks during the 27th Annual GLAAD Media Awards in New York. (Photo by Charles Sykes/Invision/AP, File)

Caitlyn Jenner (Photo by Charles Sykes/Invision/AP, File)

I read in the headlines today that Caitlyn Jenner has sued the paparazzi who were allegedly chasing him at the time of his fatal car crash in February, 2015.  So what is that all about? It’s called filing a cross-complaint- a legal tactic which has escalated since California’s adoption of Proposition 51 in 1986.

The accident occurred on the Pacific Coast Highway in Malibu, California. As frequently happens on this highway, traffic had come to a sudden stop. Ms. Jenner applied her brakes  but was unable to stop before rear ending the vehicle in front of her.  But rather than being a simple rear end accident, the car that Jenner struck then veered into oncoming traffic, causing a head on collision, killing the driver of the car that Jenner rear ended, Kim Howe.

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UnknownI was shocked to read two recent articles about medical care in the United States which are not getting very much media coverage.  The first article describes a study which found that “medical errors” are the third leading cause of death in the United States.  The other article described how a medical device company withheld  information about potentially deadly infections associated with its medical scopes.

The two leading causes of death in the United States are heart disease and cancer.  Third behind these two causes is “medical error.”  According to a study by Johns Hopkins University, over 251,454 people died of preventable medical error.  The numbers are shocking.  There are approximately 30,000 deaths caused by car accidents, and about 13,000 per year due to gun shots.  Thus, medical error is eight times more likely to kill you than being hit by a car, and almost twenty times more likely than you being shot by a gun.

Part of the problem is that hospitals are not being held accountable.  There is no requirement that they report deaths due to medical error and or negligence to the Center for Disease Control.  Therefore, we don’t know the real extent of the problem or the common causes of these medical errors. When someone dies in a plane crash, the NTSB is responsible for investigating the death and determining causes which are public records.  Instead, in the medical world, these deaths are cloaked in secrecy.  Commonly, hospitals will have a quality control committee which investigates patient deaths.  Unfortunately, in California, the findings of these committees are not available, even to the family whose loved one died. In California, if someone brings a lawsuit against a hospital for negligence or wrongful death as a result of the death of a family member, they are prohibited by law from obtaining the records of the very committee that investigated the death (California Civil Code Section 43.7).

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hit and runAs an Alameda personal injury lawyer, I receive a lot of calls from people have been injured by hit and run drivers.  The injured include pedestrians, bicyclists, and car drivers.  Recently, I researched the California Highway Patrol records pertaining to hit and run accidents.  The findings were shocking.

Between 2011 and 2013, the last three years for which the CHP has records, there were 2,049 hit and run accidents.  In 2013, over 10% of the accidents involving either death or injury, involved hit and run drivers.  In that same year, Alameda County had the second worst record out of fifty-eight California counties for hit and run accidents.

What many people do not know, is that if they are injured by a hit and run driver, their own automobile coverage may protect them.  This is true even if they are a pedestrian or a bike rider at the time of the accident.  By law, every automobile insurance policy in California must include uninsured motorist coverage, unless the insured in writing agrees to forego this coverage (Never waive your right to uninsured motorist coverage—the small cost savings isn’t worth the risk).

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Tampa Bay Ray’s Evan Langoria’s quick reflexes prevented what could have been a serious injury to a reporter during an on- field interview over the weekend. The interview was alongside the first baseline while it looks like batting practice was going on.   The batter shanked the ball to the right toward the interview. As the video shows, Langoria seemed to sense the ball’s approach and snatched it out of the air barehanded!  Very impressive!!

As an Alameda personal injury attorney, my first thought was ” Why were they interviewing on the field with their backs to the batter ?”  “Why was there no one protecting them from behind from foul balls?”  If you watch the bullpen during a game, you always see, someone with a glove standing behind the pitcher and catcher who are warming up to catch any balls that come their way.

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StopSignCyclistLast October, the City of San Francisco was considering a law, known as the Bike Yield Law, which would allow bicyclists to roll through stop signs under certain circumstances.  When I first heard about the proposed law, my gut reaction as an Alameda personal injury lawyer was that it sounded ridiculous.  However, after discussing it with a cyclist friend of mind, I began to rethink the matter.

I checked whether San Francisco adopted the law or not. It turns out that the Supervisors passed the law, but Mayor Ed Lee vetoed it in January, 2016.  He said that the “ordinance does not promote balanced public safety for all the diverse users of our streets, it trades safety for convenience.” So the law remains the same in San Francisco.  If you are on a bike, the law requires you to come to a complete stop at a stop sign before proceeding forward.

The proposed law would have permitted the “Idaho Stop”, so named since Idaho has had this law since 1982.  The Idaho stop permits bicyclists to approach a stop sign, check for approaching traffic, and pedestrians, and then roll through the intersection without coming to a complete stop. Essentially, stop signs would be treated as yield signs for bikers. Cyclists would still be required to fully stop for red lights.

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sidwalk lightsI reviewed an article recently about a City in Germany which has embedded traffic lights into the pavement at crosswalks.  The City of Augsburg, is a college town of about 270,000 residents. The decision to install the lights was made after a 15 year old girl was struck and killed by a train while she was looking at her cell phone.  Now pedestrians in that city will see a strip of flashing red lights in the sidewalk to warn them that they approaching an intersection.  As an Alameda personal injury lawyer, this made me think about what we can do to make our streets and sidewalks safer.

According to an Ohio State University study, pedestrians are being distracted while walking and using their cell phones, or texting, resulting in an increased number of pedestrian accidents.  The study showed that distracted walking accidents have steadily increased since 2005.

In Alameda, we are one of the worst ranked cities in the State of California when it comes to pedestrian safety.  Statistics gathered by the California Office of Traffic Safety show that Alameda is ranked eighth worse out of 103 counties when it comes to pedestrian accidents.  According to Alameda’s police Chief Paul Rolleri, Alameda definitely has a pedestrian safety problem.

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UnknownThe California legislature is working on a bill that has helped lower the rate of drunk driving in twenty-eight other states. The bill would require any convicted drunken driver to install an ignition interlock device which would prevent the driver from starting his car if his blood alcohol level exceeded .03.  Essentially a breathalyzer is installed in the car, which the driver would have to blow into before starting the engine.  If alcohol is detected, an interlock device will prevent the car from starting.

As an Alameda personal injury, I have represented numerous persons who have been seriously injured as a result of being hit by a drunk driver.  The need for such a law to reduce these type accidents is readily apparent.  According to the National Highway Traffic Safety Administration, 27 people die every day as a result of drunk driving.  In 2014, 9,967 person were killed in drunk driving accidents. 290,000 people were injured in alcohol related accidents. During the past 30 years in California alone, over 50,000 people have died because of drunk drivers, and over one million have been injured.  In addition to the emotional devastation caused by such behavior, the financial costs are staggering.  According to Mothers Against Drunk Drivers, drunk driving costs the United States $132 billion dollars per year.

The bill, SB 1046, has passed the State Senate and now goes to the Assembly.  Similar laws have cut the rate of drunken driving deaths in half in the twenty-seven states which have already passed similar laws.  Currently in California, the law is being tested in five counties, Alameda, Los Angeles, Sacramento, and Tulare.  According to Mothers Against Drunk Drivers, there have been more than 1 million attempts to start cars which have been rejected by the interlocks, since the pilot program was started in these counties.  That’s a lot of impaired drivers who have been kept off of the road.

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UnknownIn my blog post last year, I discussed the emergence of the driverless car and how its presence will increase as the technology improves, and costs go down.  In the meantime, crashes involving driverless cars will continue to make headlines. Recently, a Tesla driver was killed in a collision with a truck.  The National Highway Traffic Safety Administration (NHTSA) is currently investigating the crash.  As a personal injury attorney looking at these issues, there are serious lessons to be learned from this collision.

The accident happened at an intersection on a highway near Williston, Florida.  The Tesla driver was operating his car in “Autopilot” mode when the collision occurred. He was driving straight on the highway when a tractor trailer driver took a left turn in front of him.  The Tesla failed to stop and drove under the trailer, with the bottom of the trailer striking the windshield of the Model S. instantly killing the driver.

As an Alameda personal injury lawyer, my first observation about this accident is that all of the public attention appears to be on the Tesla car and its driver.  In California, a driver making a left turn on a highway has the legal obligation to make sure it is safe before making his left turn (Vehicle code section 21801 (a)). In other words, the Tesla driver had the right of way.  But because the car was in Autopilot mode, the focus has been shifted away from the primary cause of the accident. The primary cause of this fatal  accident appears to be the truck driver’s failure to yield the right of way to oncoming traffic.