Advice for cyclists considering a civil trial

By Tracy

The Crash: I was hit by a minivan while riding home from my first day at a new job. The accident happened on Connecticut Avenue NW at the intersection with Fessenden Street NW at about 6 PM on December 1, 2008.  I was traveling northbound on Connecticut Avenue, and I had changed into the left lane in order to make a left turn onto Fessenden Street.  I signaled my turn by extending my left arm perpendicular to my body.  I was wearing a reflective jacket and had a flashing rear light on. As I made the turn, I was hit from behind by what I later learned was a Toyota Sienna minivan. I did not see the vehicle before or during the collision. I was thrown from my bicycle into the middle of the intersection with Fessenden Street, where only a passing pedestrian, who ran to help me, saved me from being run over by oncoming Fessenden traffic after the light changed. Police and EMS responded to the scene, and I was taken to Sibley Hospital.  I was interviewed by the police officer while at the hospital, but he did not issue any citations in conjunction with the accident. My pelvis was broken in 3 places, and it took almost one year for me to make a full physical recovery from the collision, followed by another year to win a successful civil court tort case against the driver who hit me.

Since the crash, I have heard many stories of injury and recovery from my fellow cyclists, and I have realized how lucky I am to be alive, fully recovered, and even covered by two different health insurance policies on the day of the crash.  Winning the case against the driver has really helped me process what happened to me and turn the experience into a positive one.  To continue the positivity and spread it, I would like to share with my fellow DC cyclists

Tracy's Tort Tips:

1. WITNESSES. At the scene of the accident, any witnesses who were not involved in the accident (as drivers or passengers) are critical.  The only reason I won my tort case was because the pedestrian who saved me that day was willing to come out to Rockville District Court at 8 AM on a work day to testify. Otherwise it was a case of he said, she said.  An interesting thing to note is that he did not see the actual collision.  However, he was able to testify to both the traffic conditions on Connecticut Avenue (green light, which changed to red after the collision) and the driver's behavior after the collision. His testimony contradicted some aspects of the driver's story. So even though he wasn't an eyewitness to the crash, he made a crucial difference in my case. If you are in an accident, unless you are actually unconscious or in an at-risk situation, I strongly urge you to try to collect contact info from anyone you see around after the crash - they might walk away before the cop gets there.

2. LIABILITY.  It matters whether or not the police cite anyone after the accident.  They're not supposed to cite if there were no witnesses, unless they happened to see the crash themselves. In my case, the driver's insurance company refused liability for the accident because he claimed it was my fault, there were no witnesses to say otherwise, and he wasn't cited. However, even if you are cited, that doesn't mean it was your fault. It might mean your cop did not know the law (gasp!). You can still sue the driver. If the cop didn't see the accident, the police report won't even come into evidence, as it is all hearsay.

3. VENUE. You may be wondering about that Rockville District Court thing, since the accident happened in DC and I am resident of the District.  Virginia, Maryland, and DC are all what is called "contributory negligence" states, as opposed to "comparative negligence" states.  That means that if you are even 1% at fault in an auto accident, you can't collect any damages because you contributed to the collision.  In a comparative negligence state, if you were 1% at fault, the court would simply reduce the damages it awarded you by 1% at the end. Suing the driver in Maryland did not help me avoid this issue.  But I chose to use a Maryland District Court because by limiting the damages I was seeking to $30,000, I was able to get the case before a judge instead of a jury, and get the case over with much quicker.  Also, I did not have to pay any expert witnesses – my medical bills stood in for a doctor's testimony, which otherwise would have cost me ~$400/hour.  I was only able to do this because the driver lived in Montgomery County.

4. STATUTE OF LIMITATIONS.  You won't know how much to sue for until you've racked up all your medical bills, which takes time.  Make sure you know the statute of limitations for when you need to file suit by - in Maryland it is 3 years.

5. HOW MUCH TO SUE FOR?  I sued for $30,000 so that I could avoid a jury trial.  I was concerned that the jury would not be sympathetic to me for arbitrary reasons.  I'm really glad I made this decision, because it made the case go much faster, and the judge was really cool to me.  My lawyer wanted me to sue for $50,000, but he gave me all the information I needed to make this decision even though it meant less money for him, and I'm glad I was confident enough to stick by suing for less.  I think being very conservative about money helped me win.

6. JUDGMENT. If the other guy is found liable, then you get your damages.  My medical bills totaled over $15,000, so the judge gave that to me right off the bat for "economic damages."  He said I was also entitled to non-economic damages for pain and suffering. The amount of time it takes you to fully recover is a big factor for judges in deciding this dollar value, so be very clear on your timeline of recovery.  I kept a calendar of my recovery and I'm really glad I did so because otherwise it would have been impossible to remember all the dates a year later.  In the calendar I wrote all of my doctor's and physical therapy appointments, and noted milestones in my recovery (e.g. "able to put on pants," all the way up to "able to run 3 miles").

One thing that surprised me was that the driver's lawyer actually went through all of the notes that my physical therapists had written during our sessions.  These included lots of things like "patient is improving but recovery is slow because of noncompliance."  What that means is that I did not rest enough while I was recovering - I kept going to work, for example.  I should have rested more, but I didn't have any sick leave accumulated at work, and I'm an active person - even as I recovered I was pushing my limits, trying to get back to my old lifestyle. The lawyer argued that my high medical bills were my fault because of this. The judge rejected this argument because he said that if I had rested more and recovered faster, he just would have given me economic damages for missing work and non-economic damages for missing fun instead. Justice! However, I wish now that I had not been so chatty with my physical therapists. They did not need to know all the specifics of how I spend my weekends. They could have just done with me telling them how my hip was feeling and doing. For example, I could have said "my hip is sore today," not "my hip is sore because I hiked 40 miles this weekend." It would have been just as accurate for me to say "my hip is sore because I was hit by a minivan." So, I recommend not providing to your doctors or therapists any extraneous information that is not medically relevant because they might write it down and it could be used against you.

7. EVIDENCE. I was surprised when my lawyer told me that the record of the driver who hit me was not admissible.  He said the only thing that the court would consider was what happened with this particular accident, and it didn't matter if he had run over 100 people. What is admissible are the clothes you were wearing when the accident occurred, your gear (helmet, lights, etc), and your bike.  Take pictures of all of these things after an accident and save the actual items if at all possible.  It's also a good idea to take pictures of where the accident occurred as soon as possible, because if your case makes it to court 2 years later like mine did, the place could have changed by then.

8. LAWYER. You need a lawyer who knows the law, is experienced in bicycle cases, and will return your phone calls.  That's about all you can hope for. My attorney was Tom Witkop (http://witkopjustice.com/default.aspx) and while his office and email could be a lot more organized, he never lost any paperwork, he returned all of my calls, he knows the law cold, and he showed up in court on the right day (November 17, 2010!).  And he won, so he gets 40%. My understanding is that the lawyer gets between 30% and 40%, so perhaps you can try negotiating on that amount.

Dear reader, I hope you do not get hit by a car.  But if you do, I hope my advice can help you.  Most people, like car drivers and cops, aren't going to do much for you, so live another day so that you care for the people in your life who take good care of you.

Sincerely,

Tracy

Crossposted on Struck in DC

Comments

[Christopher Fotos]

Wonderful, bookmarkable post. Unfortunately!

[bikermark]

Good to know about suing in Montgomery County, because I'm certain it'll be a Maryland driver who takes me out.

Send this to your friends who ride.

[MB]

This was fantastic. Thanks, Tracy, and I hope you're fully recovered.

[Wlerik]

Thanks for the info.

[shiftless]

thank you! that was very informative. I was lucky in that the driver who hit me took responsibility at the scene. I decided to settle with the insurance company rather than go to court--in part because the driver who hit me lived far away. I'm sure my conversations with the physical therapists could have been used against me!

I'm curious if you ever had a conversation with the driver after the accident. I have thought often about trying to contact the person who hit me now that the case is settled. it seems like our contact was so intimate (I could have died!) yet we know nothing about each other.

[Jim Titus]

It's very helpul to get this first-hand account of the thinking and tactics. On "venue" I had been assuming that the law of the jurisdiction where the accident takes place governs, rather than the law of where the case is heard, so that negligence, contributory negligence, and last chance would all be based on the duties as defined in the District of Columbia. It's an interesting twist if the law of focum state applies, as you suggest. If that's really the rule, then if Maryland cyclist crashed with PA driver in PA, the PA driver should sue Maryland cyclist for damage to his bumper before MD driver sues him in PA.

@Shiftless: Over the weekend, I heard the story of a British man who made friends with his kidnapper. Usually it works better if the admitted perpetrator makes contact, so that "I'm sorry" is the opening line.