Bicycling And The Law - 911law.com

  In today’s podcast, Richard L. Duquette discusses the importance and ways of checking lifestyle changes in Proving Mild Traumatic Brain Injuries Part 2. Tune in to help you decide how to proceed with your case!   Probing Lifestyle Changes   In any case, it is essential for the plaintiff to prove the lifestyle changes caused by the injury. As some say, a brain injury is considered permanent or long term if it still exists after 6 months.   Insurances companies often use diagnostic imaging to deny the basis of the claim. They would go on to say that the symptom has permanently healed or that there’s nothing wrong.   Where Diagnostic Imaging Fails   Diagnostic imaging does not always prove the absence of the injury. Victims can still suffer from lingering symptoms and effects. This can be evident in their sensory, cognitive, and motor functions as well as in their emotions and behaviors. Bizarre actions by clients may need further assessment. Such actions could be caused by a head injury acquired from the acci

  In today’s podcast, Richard L. Duquette discusses the symptoms and tools in Proving Mild Traumatic Brain Injuries Part 1. Tune in to help you decide how to proceed with your case!   Mild Traumatic Brain Injury   In a crash, a bicyclist can get different types of injuries from small wounds to traumatic ones. A serious injury, such as a mild traumatic brain injury (MBTI), can increase the value of the settlement by $100,000 or more.   MBTIs can affect a person permanently. For this, a 3-part series will be available to tackle the (1) symptoms and tools, (2) lifestyle effects, and (3) evidentiary issues.   What are the symptoms of MBTI?   Know the symptoms of MBTI. The injured bicyclist can lose consciousness for less than 30 minutes in its mild stage, more than 30 minutes in its moderate stage, and 6 hours or more in its severe stage. Although a person suffering MBTI can return to his usual activities, the symptoms would still exist to hamper him. As discussed in today’s episode, examples of such symptoms are

  In today’s podcast, Richard L. Duquette discusses how Good Samaritans are Protected. Tune in to help you decide when and how to help an injured bicyclist!   In Good Hands   Some people may fear having to face a lawsuit when they come upon a downed rider. They fear the liabilities that can possibly come along with the accident. For this, a few could just stand around the victim while the others ride by without providing help.   Suppose a good samaritan comes along. Well, there’s nothing to fear. Laws have been established in California to protect the good-hearted person.   Not Required to Help   Historically, there have been no mandates that require us to help. If you decide to help a downed rider, you can use “due care” or risk liability. Liability arises only when a person has a special relationship with the victim. None can be punished for not taking action. Encouraged to Volunteer   Today, CA Health and Safety Code Section 1799.102 encourages us to volunteer help in an emergency. It states, “No person wh

In today’s podcast, Richard L. Duquette shares the list of immunities that protect the government from a lawsuit. Tune in to Bicyclists Rights against Public Entities, Immunities Shield to help you decide how to proceed with your case!   A Careful Decision   The government enjoys various immunities to liability. Therefore, it is important to choose the right case before filing a claim.   Filing a lawsuit is risky compared to filing a claim, because of the consequences it entails. For this, make sure you have an experienced lawyer to defend your case.   List of Immunities   Recreational immunities – serves to ensure that public and private lands aren’t closed off to use, with exemption for gross negligence. (Civil Code 846, also known as The Recreational Use Statute; See Delta Farms Recreation District vs Superior Court of San Joaquin County 33 Cal. 3d 700 1983) Design immunities – concerns road and other such designs intended for public use and welfare. (Hampton vs County of San Diego 62 Cal. 4th 340 2015)

In today’s podcast, Richard L. Duquette discusses the different types of claims and how to successfully bring them to court. Tune in to Bicyclists Rights against Public Entities, Potholes to Trails Part 2 to help you decide how to proceed with your case!   Building a Permissible Claim   There are different types of claims, particularly in cases where an injured bicyclist will be allowed to sue a public entity. Whatever the claim, the bicyclist must be able to prove the “dangerous condition” that would warrant the case to go to court.   Three things to prove are: that the property concerned is owned or controlled by the public entity; that the property was in a dangerous condition; and, that the injury was foreseeable or reasonably foreseeable.   The Element of Foreseeability   Foreseeability does not apply to the natural conditions of improved land. One should be able to prove that the “dangerous condition” was created by a government employee or that the public entity concerned had actual or constructive not

In today’s podcast, Richard L. Duquette discusses the procedure in imposing liabilities against state and local entities. Tune in to Bicyclists Rights against Public Entities, Potholes to Trails Part 1 to learn how you can proceed with your claim!   Historical Overview   Sovereign immunities used to exempt public entities from liabilities. Rooted in the divine right of the kings, the idea came with the belief that kings could do no wrong when enacting a law with their official capacities. Any law they enact, hence, serve only for the general good and cannot be deemed wrong.   In modern times, however, this idea can be changed. One example is the California Tort Act of 1963, which states that there’s “no public entity or immunity except when allowed by statute.” The Act further encourages immunity as an exception instead of a rule.   Following the Procedure   It is very important to follow the necessary steps when filing a claim. It can be challenging when even when you have a meritorious case against a govern

 In today’s podcast, Richard L. Duquette discusses the economics of justice in a small bike injury case. Richard provides a realistic perspective in Economics of a Small Bike Injury Case to help you decide how to proceed with your case.   Historical Overview   The legal claim field has titled to the side of the insurance adjuster. In the 80’s a typical case settled for 3 times the medical bills. This provided for pain and suffering in addition to paying for the medical bills. Everyone walked away generally happy.   In the 90’s insurance companies began pumping millions of dollars into tort reform via advertising and politics. This changed things drastically.   Today, the victim is being offered just medical bill repayment. The changes over time have shifted the burden of proof over to the victim in order to pursue a case.   This process can be so overwhelming and confusing for many so they just give up. The big corporations win and the victims lose.   Fight Back   Don’t give up. You can still fight with a sma

In today’s podcast, Richard L. Duquette discusses Grassroots Bicyclist Advocacy. Tune in to learn about the basic principles in promoting safety for bicyclists!   On the Same Trail   Safety is always important in bicycling. With it stands the need for pertinent changes in both legislative and local sectors.   Everyone doesn’t have to be in the same political party. However, we can always agree on key issues to help make our roads and recreational trails safer for bicyclists.   Grassroots Organizing 101   To be effective in rallying out the cause, it’ll be beneficial to consider the basic principles in grassroots organizing. Take for example the participation of democrats in the San Diego GO team—they have known to increase by 10%. Through effective promotional tools, advocates apparently can do a lot to increase voter turnout.   This is most effective by way of personal contacts. Advocates can establish relationships among their geographic locations. They can appoint community coordinators and precinct leader

In today’s podcast, Richard L. Duquette discusses Ten Tips to Avoid Being Doored. Richard’s prior episode discussed the Door Zone Debate and where to ride to be safe and in compliance with the law.   How Often Does It Happen   Cyclists are doored more often that you would think. Although cyclist try hard to avoid this dangerous occurrence, it is second only to a vehicular right hook turn as a cause of bicycle injuries.   Richard has successfully investigating and resolving several doored injury cases, he’s offering his tips to avoid an injury.   Tip #1   Choose a safe wide route. Avoid one that is lined with cars. Prevention is the best cure, always. Your route is critical so pick a safe one with a bike lane or bike route lane so there is separation between you and the parked cars.   Ride as far to the right as possible but when in a bike lane, move as far to the left as possible to give you more space especially if the lane is buffered. If you are riding in a group, ride single file as opposed to side by sid

In today’s podcast, Richard L. Duquette discusses the Door Zone Debate. Bicyclists are generally required to ride as far to the right as possible or practical or in a posted bike lane.   Two Sides   The conservative view is to ride as close the right as possible. That is the law and you should follow the law as closely as possible.   Others say to take the lane completely to the conflict of the law.   Resolve the Door Zone Debate   When riding in a door zone, realistically cyclists must know that motorists inattentively fling open car doors and often seriously injure cyclists.   A statute defining the zone would have added more protection for the cyclist. Instead the prevailing statute in California reads “no person shall open the door of a vehicle on the side available to moving traffic unless it is reasonably safe to do so and can be done without interfering with the movement of such traffic...”   It’s a Balancing Act   Many motorists don’t look when opening their doors and hit cyclists by either bumping th

 In today’s podcast, Richard L. Duquette discusses strategies to increase your success with 13 Ways to Win Your Bike Case.   Communicate with Your Lawyer   Keep in contact with your lawyer regarding doctor’s appointments via email or phone. Schedule in-person appointments even if they are brief. This will keep you both up to date with your case. It holds your lawyer accountable because they will have to review your file.   Avoid Posting Online   This is really really important. Avoid posting any pictures or content regarding your case on any social media or internet sites.   Regardless of the situation, they can be taken out of context and used against you.   Be careful of what you do. If you are entering races, there are databases online where your results will be posted. Be mindful and maintain your privacy.   Frustrations and Stress of Case   Oftentimes, there is stress and frustrations associated with this type of case. Talk to your lawyer. Iron out issues and don’t stew on them. This will also develop a

 In today’s podcast, Richard L. Duquette discusses A Victim's Guide to Sentencing with Michael Norton, an attorney from North San Diego County.   Criminal Conduct   Many bicycle and pedestrians fall victim to criminal conduct in the process of being injured. The issue then becomes how do you compensate them.   Victims can seek punishment and retribution. Some of the accused end up in prison for their criminal conduct. However that’s separate from collecting money.   Who Becomes the Target?   Many times, in a criminal case, the defense attorney will work with the personal injury attorney and exchange information. Their common goal is to target the insurance company.   When the attorneys work together, it can facilitate a prompt settlement with the insurance company.   A Defense Attorney’s Perspective   It’s very important for the defense attorney and the personal injury attorney to work together.      The defendant's attorney recognizes the victim has input into the case. The D.A. will ask the victim about wha

In today’s podcast, Richard L. Duquette discusses Bicycle Light Law at Dark. As the fall leaves change colors and the days get shorter the sun sets earlier. This affects many cyclists who commute during the dark hours.   Determining Sunset and Sunrise   In California, darkness is defined as :30 after sunset and :30 before sunrise. To precisely define that, look on the Navy Meteorological and Oceanography Command website.   Here you find various standards of time. If you look at June 14, 2014, it was the shortest night of the year. There were 14:54 of daylight and sunset was at 8:37pm.   If you were riding without a light at 7:45pm and involved in an accident, you would be considered law abiding. You could not be in violation until after 9:00pm.   Adjusters Chipping Away at Your Claim   Insurance companies do whatever they can to minimize your claim. They use comparative fault principles. The definition of comparative fault as there must be a substantial factor that causes an injury.  If it’s dusk and not dark

 In today’s podcast, Richard L. Duquette discusses recovering an athlete's Loss of Enjoyment of Life.   In a prior episode “Calculating Pain and Suffering” Richard discussed how to Loss of enjoyment of life prove pain and suffering. One of the points in proving pain and suffering was the loss of enjoyment of life.   Money as Justice   Since money is often the only justice a victim receives from a careless driver, it’s important that we get as much money as possible. When the courthouse doors close, you want a solid verdict for compensation to make you whole and help you heal from an injury.   Hard Damages   Hard damages are economic damages. There is no legal standard to determine the amount of loss but in California the law says the amount must be reasonable.   What does reasonable mean and how can we help the jury see it your way? Remember, not all jurors are athletes or bicyclists.   Helping the Jury   Since most jurors are not athletes or bicyclists, you need to connect with them. You want to help them se

 In today’s podcast, Richard L. Duquette discusses the medical exam set by the defense using a doctor of their choosing known as a Defense Medical Exam or DME   The Insurance Company Secret   To minimize their losses or the amount they have to pay, insurance companies will set a DME. This exam is not designed to help you receive the medical treatment you seek to get better.   Your Responsibility     First, be truthful and honest. This will help your doctor and lawyer with your case. Make sure your expert is able to show you are an accurate historian after the DME and a report from this has been created.   You want to show that your treatment was adequate with regard to the number of appointments. Also, you want to prove that the amount of the treatment was reasonably priced and the treatment was necessary for you to get better.   What The Defense Wants to Establish   The defense is looking for inconsistencies in your history that could impugn your credibility. They are also looking for ways to minimize damage

In today’s podcast, Richard L. Duquette discusses his Conversation with Richard Duquette by Craig Zelent. Craig took some time to interview Richard and find out who he really is.   The Most Influential Person in Richard’s Life?   Thomas Woodhall, Richard’s grandfather was the most influential person in Richard’s life. He was a city bus driver in Detroit for over 20 years until his death from throat cancer.   His death caused Richard to think about the value of life and health. He began to train for and then competed in Ironman New Zealand and Hawaii. He dedicated his race in Hawaii to his grandfather and his life.   Richard’s grandfather treated everyone equally with respect. He did this even while driving a tough bus route in the City of Detroit during the ‘68 Detroit Riots. He was liked by his riders and received an award by the Mayor of Detroit for his great public service to that city.   Who is Richard’s Hero?   That’s an easy one to answer. Richard’s hero is his wife Kim of over 23 years. She’s a big sup

  In today’s podcast, Richard L. Duquette discusses a Brief History of Marijuana Legalization with Mark Bluemel an experienced marijuana lawyer.   How History Affects a Case   The history of marijuana legalization in important when dealing with jurors. Oftentimes they come from different cultural and ethnic backgrounds. Their perspective and perception will affect how your rights are viewed should you go in front of a jury.   Medicinal Use   Marijuana has been used medicinally for over 5000 years. To put that into perspective, acupuncture which is a well accepted healing art has only been around for 3000 years.   Before 1933, cannabis was considered a household remedy. To date, there are cultures that use cannabis in rubbing alcohol to use as an arthritis medicine.   A shaman or medicine man was quoted as saying that “Only white people are stupid enough to outlaw a plant.”   The Move to Illegalize   Public opinion turned against cannabis when William Randolph Hearst used propaganda to promote hemp and marijua

In today’s podcast, Richard L. Duquette Bicycling and Drugged Drivers. Joining Richard is marijuana expert attorney Mark Bluemel from San Diego.   Richard’s Experience   Richard Duquette had handled many bicycling injury cases involving motorists driving drugged. This includes methamphetamine, opiates, benzodiazepine, alcohol, marijuana, prescription medications or the combinations thereof.   He has seen a lot of these cases and he feels it is important to focus on marijuana specifically.   Marijuana Legalization   In California, medicinal marijuana was legalized in 1996 through Prop 215. Since then there has a been a national movement towards full legalization. Colorado and Washington became the first two states to legalize marijuana for adult recreational use in 2012. California will vote to do the same in November 2016.   There is a trend for acceptability and legalization of marijuana. With the greater accessibility of marijuana, several issues are raised for bicyclists safety.   Increased Liability   Whe

  Richard L. Duquette discusses the attributes of a trial lawyer and the the pressures a trial lawyer must endure to be successful. He shares his insights as a successful trial lawyer in God Made a Trial Lawyer.   On the 8th Day...   On the 8th day God said “I need a trial lawyer.” Someone to get up everyday before dawn review medical records and depositions, meet with experts, work all day in front of a jury under stress and under the thumb of a judge. Along with all of that he still must find the time to rest, eat and take care of himself.   He must have a sharp mind to fight insurance companies and overpower government interests, yet calm enough to ease his clients’ minds in the heat of trial.   Waiting for a Verdict   A good trial lawyer must be able to wait for a jury verdict in the courthouse halls where nothing grows, all day on pins and needles in the most difficult cases.   Then the trial lawyer watches as the jury files in and renders its verdict, while he dries his eyes and prays that justice will

  In today’s podcast, Richard L. Duquette discusses Brain Injury Basics if you have sustained a head injury for a bicycling accident.   Start with a Helmet   Most accidents involving bicyclists involve a head injury. It’s important to first have been wearing a helmet properly and to take pictures of and save that helmet after you have been in an accident.   Also, take pictures of all of your injuries. Remember the burden of proof is on the cyclist.   Types of Brain Injuries   The brain is damaged within the skull from a violent hit or movement. Sometimes it’s from an impact with the car and then another impact hitting the ground.   Think of it like an ice cube that is shaken around in a glass drink. That’s essentially what happens when your head strikes or is struck.   Frontal Lobe Injuries   The injuries sustained after a head impact can cause cognitive malfunctions. The frontal lobe deals with your ability to multi-task. This involves thought, memory, intelligence,  concentration, personality and aggression