Jennifer Witt

Jennifer Witt

What is my case worth? Many people want to know the value of their case when they first meet with a personal injury lawyer. To be able to answer that fairly, the client needs to answer these 5 questions for the lawyer.

1) Are your injuries documented?

Basically, did you immediately get treatment following the accident or did you delay a month? That month will allow the adjuster to claim that you may have sustained the accident somewhere else or that you aren’t really hurt from the accident. While many attorneys accurately state that “injuries drive the value of a case,” that is only true where injuries are actually documented.

2) Did you receive treatment?

Did you get treatment for your injures and did you stick to the treatment plan? This gets tricky because many people will answer yes to the first part of the question but have a lot of excuses regarding that latter part of the question. If you aren’t following the treatment plan, why aren’t you? There needs to be a very legitimate reason. Are you seeking alternative therapies or getting second opinions? If you simply don’t want to go to medical appointments, that will reduce the value of your case.

3)  What was the cost of your treatment?

How much money has been spent by you or your insurance on medical bills? Do you have large bills (CAT scans or MRI) or did you decide to get a massage or two and stop treating? One person might have prolonged neck pain so they get an MRI. Other clients will see the chiropractor for 5 visits and assume the pain will gradually go away. Generally speaking, the two clients won’t have the same case value.

4)  What was the amount of the property damage?

How much damage was done to your car or motorcycle? Did you document it? Just like injuries, it is important to document body damage immediately. Taking pictures is critical and noting any damage to the inside of a vehicle as well. If an insurance company is disputing the severity of your injuries, it is helpful to have a picture of your totaled vehicle.

5)  Is there insurance? 

What insurance policies are at play? Was the negligent driver uninsured? Did the negligent driver have a policy through an employer? Do you have PIP or UIM? If you or the other party were driving rental cars, was additional insurance purchased? This is the difficult part of the equation. While a person may be entitled to $500,000 for their injuries, there needs to be a policy available. Sometimes, the policy limits are $250,000 and that will be the most that the injured person can recover. Again, finding insurance policies is an investigation. See our other blog on 5 Ways to Ruin Your Personal Injury Case and refer to point #3! Never believe a negligent driver when he tells you he doesn’t have insurance. That should always be confirmed by your attorney or insurance company.

Witt Law Group PS is a personal injury and criminal defense law firm with officers in Gig Harbor and Bremerton Washington.

There are 5 big mistakes that will tank your personal injury case.  Don't fall into these traps!

1) Believing that the third party adjuster (negligent driver’s insurance) is the final arbiter of whether you “have a case” is a big mistake.

We have had clients in the past get into an accident but, due to various challenges, were not able to immediately seek medical treatment or reply to their own insurance company. Whether it was due to a funeral or a new job, they didn’t respond to any adjusters. While you have a duty to cooperate with your own insurance (with some limitations), you are not required to respond to all of those “nasty grams” and phone calls that come after you blow off the third party adjuster. Before hiring us, some clients would get notices that their “claim would be closed” due to no response. That was really confusing to the client. They thought that meant they couldn’t’ have a case against the negligent driver. Practically speaking, it means nothing. The only big issue to be aware of is your statute of limitations regarding your case (this is the time limit you have to file a lawsuit after an injury). You or your attorney can always contact the 3rd party insurance when you are ready. Your attorney will be watching for the 3 year statute of limitations (in Washington) regarding your personal injury claim.

2) Believing a third party adjuster about liability is a big mistake.

Occasionally, right out of the gate, the 3rd party adjuster will tell you that they don’t believe it was 100% their insured’s fault. The adjuster will assert that you are partially at fault (even when the police report says otherwise). What the adjuster says is not gospel. They do that all the time. It is an attempt to reduce what they are on the hook for. Disputing liability is one of many ways that less than stellar insurance companies will dispute paying a claim. Sometimes, you just have to file a lawsuit to move past this. If you are handling your own case, this might be a time when you really need to consult an attorney.

3) It is a big mistake to believe a negligent driver when they tell you that they don’t have insurance.

We’ve seen more and more of this. The at fault driver will say he or she has no insurance. If you are handling the case on your own, you might assume you’re out of luck. Hopefully, you have PIP or UIM but you might be tempted to drop it. On more than half of those cases, we found out there WAS insurance and occasionally there is more than one policy at play. On several occasions, the driver was “on the job” so the employer’s policy is involved.

4) Not seeking treatment right away or a gap in treatment are both big mistakes for personal injury cases.

Think about it from the insurance company’s perspective. If you were truly injured, you’d get help. So, while life is busy, don’t neglect your care. Many months down the road, gaps in treatment will really hurt your effort to negotiate a fair settlement.

5) Failing to take pictures of your car, motorcycle or bike is a BIG mistake.

Frequently, when a car or motorcycle is totaled, it will be taken away and your chance to photograph the damage is gone. Don’t let that happen to you! When we are in dispute with an adjuster regarding injuries and we can offer pictures of a car that is smashed beyond recognition, it’s a big help! It also makes it clear that, if those pictures are presented to a jury, denying a victim’s injuries looks like a bad faith move. So, as the old saying goes, a picture is worth a thousand words or, in a personal injury case, a much better settlement!

Witt Law Group PS is a personal injury and criminal defense law firm with locations in Gig Harbor and Bremerton Washington.  Thanks for reading.

If I am arrested for DUI, am I required to take the BAC at the police station?

Drivers in the State of Washington are assumed to consent to the breathalyzer request (BAC) by simply driving on the state’s roads. This is known as Implied Consent.

The statute reads in part: 

RCW 46.20.308
Implied consent—Test refusal—Procedures. (Effective until January 1, 2019.)
(1) Any person who operates a motor vehicle within this state is deemed to have given consent, subject to the provisions of RCW 46.61.506, to a test or tests of his or her breath for the purpose of determining the alcohol concentration in his or her breath if arrested for any offense where, at the time of the arrest, the arresting officer has reasonable grounds to believe the person had been driving or was in actual physical control of a motor vehicle while under the influence of intoxicating liquor or any drug or was in violation of RCW 46.61.503.
(2) The test or tests of breath shall be administered at the direction of a law enforcement officer having reasonable grounds to believe the person to have been driving or in actual physical control of a motor vehicle within this state while under the influence of intoxicating liquor or any drug or the person to have been driving or in actual physical control of a motor vehicle while having alcohol in a concentration in violation of RCW 46.61.503 in his or her system and being under the age of twenty-one. Prior to administering a breath test pursuant to this section, the officer shall inform the person of his or her right under this section to refuse the breath test, and of his or her right to have additional tests administered by any qualified person of his or her choosing as provided in RCW 46.61.506. The officer shall warn the driver, in substantially the following language, that:
(a) If the driver refuses to take the test, the driver's license, permit, or privilege to drive will be revoked or denied for at least one year; and
(b) If the driver refuses to take the test, the driver's refusal to take the test may be used in a criminal trial; and
(c) If the driver submits to the test and the test is administered, the driver's license, permit, or privilege to drive will be suspended, revoked, or denied for at least ninety days if:
(i) The driver is age twenty-one or over and the test indicates either that the alcohol concentration of the driver's breath is 0.08 or more; or
(ii) The driver is under age twenty-one and the test indicates either that the alcohol concentration of the driver's breath is 0.02 or more; or
(iii) The driver is under age twenty-one and the driver is in violation of RCW 46.61.502 or 46.61.504; and

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(4) Nothing in subsection (1), (2), or (3) of this section precludes a law enforcement officer from obtaining a person's blood to test for alcohol, marijuana, or any drug, pursuant to a search warrant, a valid waiver of the warrant requirement, when exigent circumstances exist, or under any other authority of law. Any blood drawn for the purpose of determining the person's alcohol, marijuana levels, or any drug, is drawn pursuant to this section when the officer has reasonable grounds to believe that the person is in physical control or driving a vehicle under the influence or in violation of RCW 46.61.503.

 Should you take the BAC test?

Boiled down, the statute says that 1) you consent by driving in Washington 2) if you refuse, you will face much stiffer penalties in your criminal case as well as your administrative consequences with DOL, and 3) you are specifically informed that your refusal can be used against you in trial. Your license will automatically be suspended and the suspension will last longer than if you had blown into the BAC. We have some clients happily tell us that they refused the BAC. Most often, these clients are from out of state. Unfortunately, being unaware of the implied consent rule is not a defense. Most defense attorneys will tell you that refusing only makes your case more difficult and the result more unpleasant. Even if your blow is high, there are still many options that your attorney can consider for suppression of the test. With a refusal, the defense attorney is much more limited in negotiation.

The BAC is different from the roadside test

Remember, the BAC at the police station is very different from the portable breath test (PBT). The officer will request that you submit to the PBT while conducting field sobriety tests along the road. There is no implied consent regarding field sobriety tests (FST). They are voluntary and are used by the officer to gain evidence regarding probable cause for your arrest. However, be aware that the Washington State Supreme Court in Mecham did uphold the lower court’s decision to allow the prosecution to reference the refusal to submit to FSTs as evidence and as well as discuss the refusal in closing. State v. Mecham, 186 Wn. 2nd 128 (2016). Defense attorneys everywhere are still scratching their head.

The ruling in Mecham seems to go against everything we know when advising clients that these tests are voluntary. The Court found that the FSTs are seizures but are not searches under the Fourth Amendment and, therefore, you have no Constitutional right to be protected from using that refusal as evidence of guilt. This is perplexing since an officer can’t gather “evidence” of probable cause for the arrest without you engaging in physical actions that the officer orders you to do. Consequently, many defense attorneys believe FSTs are definitely a “search” but we are still bound by the ruling in Mecham.

Regardless of the Mecham ruling, realize there are still opportunities to refute this “evidence of guilt” since there are a countless number of reasons innocent people would not submit to FSTs. For example, there are dozens of health issues that would cause a person to fail these tests and, therefore, they would rather go to the police station and speak to a lawyer about what they should do. It is best to consult with legal counsel if you are concerned about any refusal following a DUI arrest.

Witt Law Group PS is a DUI defense, criminal defense and personal injury law firm with offices in Bremerton and Gig Harbor Washington. 

When I-502 passed in 2012, big changes happened in Washington. The Initiative didn’t just create rules for the legal use of marijuana, there were some trickle down impacts that most defense attorneys saw coming.

To appease those who were skeptical that a civilized society could use cannabis without absolute chaos ensuing, there were numerous “safe guards” that were created. There were educational programs set up through the state to help people learn about cannabis and the risks to teens. Information was disseminated regarding medical marijuana authorization and who would be considered credentialed under the oversight of the Washington State Liquor and Cannabis Board. Additionally, to address the risk of people becoming impaired and driving, lawmakers decided on a per se standard with regard to Marijuana DUIs.

The skeptics got their way   

 

In Washington, the per se standard is 5ng of THC per milliliter of blood. This standard met with disapproval by many who found it arbitrary. There was research prior to the passing of the Initiative, as well as following it, which did not support the notion that THC and Carboxy-THC could predict driving impairment. (National Highway Traffic Safety Administration)

Carboxy-THC does not measure psychomotor impairment and, additionally, this metabolite can exist in your system for hours, days, or weeks after use. Some citizens and defense attorneys were concerned that, despite waiting to drive for an appropriate time following the use of cannabis, the per se rule of 5 ng/mL would subject a person to a DUI who was not actually impaired. Since science has yet to provide us a bright line rule regarding cannabis use and impairment, the debate continues and so does the per se standard.

Get educated if you choose to use marijuana

 

Whether you agree or disagree with the per se standard of 5ng/mL, it is important for those who use cannabis recreationally or for medicinal reasons to educate themselves on this topic. It is entirely possible to be arrested for a Marijuana DUI even if you have not smoked or ingested cannabis for more than the suggested time by Washington State Department of Health or WSLCB. You may believe (perhaps accurately) that you are not impaired, but it is still possible to be prosecuted for DUI.

I had a head injury and may have lost consciousness in my accident. Is there an option other than a CT scan to test my head injury?

 

Yes and No.

There Is A New, Simple Method That Tests Proteins. 

 

On February 14, 2018, the FDA announced approval for a blood test that detects proteins released into the brain in the 12 hours following a mild TBI (traumatic brain injury), often referred to as a concussion or mTBI. The proteins, ubiquitin carboxy-terminal hydrolase-L1 (UCH) and glial fibrillary acidic protein (GFAP) are released into the blood following a brain injury and can be detectable biomarkers in the test produced by Banyan Biomarkers.

 

Every year, nearly 3 million people visit the emergency room for TBI-related injuries. Normally, the patient is evaluated with a 15-point Glasgow Coma Scale and then, when damage is suspected, a CT scan is ordered to detect tissue damage or intracranial lesions. In this normal course, approximately 90% of CT scans show no detectable intracranial lesions—even when there is damage.

 

The new Banyan Biomarkers blood test that was approved by the FDA predicted absence of lesions 99.6% of the time and predicted intracranial lesions 97.5% of the time. According to the FDA, this information could rule out the need for CT scans in at least 1/3 of patients suspected of mTBI.

 

Of particular importance, is reducing the risk of overexposure to radiation. A CT-scan exposes a patient to radiation equivalent to 200 chest X-rays. And, for children, some studies have suggested that their risk is much greater due to their developing body as well as excessive exposure due to hospitals failing to adjust the scanners between each patient.Clearly, the reduction in radiation exposure and reduction in unnecessary testing is a double win.

The Test Has To Be Done Within 12 Hours. 

 

Unfortunately, for our current clients, this test isn't particularly helpful to you. Due to the limited window for detection, this option won't work weeks or even days after your accident. So far, the test is only administered within the 12 hours following your injury. However, keep this information in mind to discuss with your doctor or emergency treatment team, if any other accidents or injuries occurs in the future.

 

And, for those of you with young athletes in the family, this might also be relevant information to share with your pediatrician regarding sports-related concussions. With two alpine ski racers in our family, we will most certainly be checking to see which facilities offer the new test!

For many years, Congress has tried to pass “ban-the-box” legislation to prevent employers from asking about criminal background until the person has had an opportunity to present his or her qualifications for the job. It would also prevent discrimination when applying for college and housing. The evidence is clear that, when “Have you ever been arrested?” is on the employment questionnaire, the ability to get ahead in life is stifled. Unfortunately, Congress hasn’t been successful in fully addressing this issue.