What exactly is a serious physical injury?
It is a disabling injury. The disability may be temporary or permanent, partial or total. A serious injury causes a significant interruption in your normal lifestyle due to loss of work, substantial pain, disfigurement or the like. A serious injury adversely affects earnings and the quality of life for you and your family.
How long do I have to act?
Each state has different time limits or statute of limitations. You must be aware of the time limits or statute of limitations for your state so you can act to protect your interest and the interest of your family. If you do not act within the time limit or statute of limitations, you may lose your right to make a claim for your injury in the future even if the injury, which now seems relatively insignificant, gets much worse. These time limits or statute of limitations are particularly short when medical malpractice may have caused the injury.
Does the family have recourse when the injury causes death?
Yes. The law permits the estate of the deceased to file a lawsuit on behalf of the heirs. Wrongful death is a term used to describe the type of lawsuits brought by the surviving relatives of a deceased person, against the person(s) and/or entity(s) who caused the death.
A wrongful death action is separate from the lawsuit that may be brought on behalf of the deceased person (for example, by the deceased person's estate) for damages resulting from injuries to the deceased. For procedural purposes, these actions are typically combined into one lawsuit. The idea behind a wrongful death lawsuit is that the wrongful death, in addition to injuring the person who died, also injured people who depended upon the deceased for financial or emotional support. The wrongful act may be a negligent or careless act such as careless driving or a deliberate act such as manslaughter.
What kind of compensation does the law provide?
The compensation you are entitled to receive often depends upon the type of accident caused your injury. For instance, there are different rules of recovery when the injury results from an automobile accident than when it is an on-the-job injury. To understand the rule that would apply to your situation, you need to consult with an attorney.
What kind of damages does the law permit heirs to recover?
Wrongful death damages can be economic, such as the loss of an income provider or a homemaker, and it can also be non-economic in the form of the emotional impact of losing a loved one and even the loss of enjoyment of life of the deceased person. In a wrongful death lawsuit, the amount of damages can be a very complicated question. Survivors can usually sue for medical bills paid for the care of the person who was injured as well as for burial expenses.
Because the idea is that the survivors have been injured by the absence of the person who died, determining the amount of damages requires consideration of what probably would have occurred in the future. The damages that can be assessed may include an estimate of the amount of earnings the person who died would have earned if they had lived and the pain and suffering experienced by the survivors due to the absence of the deceased person. Estimates of future earnings require the use of an economic expert testimony regarding the net present value of the deceased person's future earning capacity.
What if I do not want to file a lawsuit?
Even if the case is not pursued, at least the decision to not pursue it is an informed decision. We will provide you the information you need to make an informed decision. Most cases are concluded by settlement, not trial. We are committed to spending the time and money necessary to obtain the full recovery allowed by the law. In other words, we prepare for trial, knowing full well that the large majority of the cases will end up settling before the trial commences. We do this because we are committed to obtaining full and adequate recovery for our clients.
What are your fees?
We are contingency fee lawyers, and do not charge a fee unless we recover money for you.
Do I have a case?
If you or a loved one was injured due to the wrongdoing of others, you could have a case -- but it is impossible to say for sure until we know the details.
What should I look for in selecting an attorney?
Before making the decision to hire an attorney you should find out about the lawyer’s education, training, and experience in the field and his actual trial experience in these kinds of cases and ask the lawyer to tell you about how he or she has represented clients in cases similar to yours. Ask the lawyer to go over the fee arrangement in detail with you and be sure you understand what the lawyer plans to do to represent you on your claim.
What do I need to bring with me on my first visit?
At your first visit you should bring all information you have regarding the incident, all medical bills in your possession, a list of all doctors and hospitals, your other healthcare providers with addresses and the last three years of tax returns. If you have lost wages as a result of the incident, you may be asked to bring additional information at the time your appointment is scheduled.
Will I have to pay a retainer fee to get the case started?
No. We normally handle our cases on a contingent fee arrangement. This means we do not get paid costs or attorney’s fees until we get a settlement of judgment for you. All details of the fee and cost agreements will be explained to you in detail before we begin representing you or your claim.
Who pays for out of pocket expenses while my case is pending?
When you retain an attorney on a contingent fee basis the out of pocket expenses necessary to effectively prosecute the claim are only the client’s responsibility if we successfully conclude the case. While the case is pending we advance the expenses incurred in the course of the representation. If and when the case reaches a successful conclusion the costs we expended are reimbursed to the firm out of the recovery.
If you take my case, can you guarantee I will win?
No one can guarantee a win but our reputation is based upon our effectiveness and the success the firm has had as trial lawyers. The firm gives its best effort on behalf of each and every client we represent. In spite of past performances there can be no guaranteed result in a lawsuit or claim. Our clients can depend on the fact that we use our resources, experience, judgment, and dedicated commitment to our client in order to make sure that your case is thoroughly prepared and ready to prosecute through trial.
What assurance do I have that my case will be prosecuted to its conclusion?
We have prosecuted many cases in which the defendant(s) did not accept responsibility for their actions and the wrong they had inflicted upon our clients. In order to achieve a just result the case had to be tried and often the verdict obtained for our client had to be defended on appeal. We relentlessly prosecute cases to a conclusion, where in our view they are meritorious, economically feasible, and capable of a meaningful monetary recovery for our client.
How long will it take to resolve my case?
Normally it takes one to three years to bring a case to conclusion. This time varies, however, because of many factors such as the number of parties involved, the complexity of the case, the number of depositions, the extent of the investigation needed, schedules, commitments of experts, the availability of the judge, etc. Approximately 80 percent of the cases that we accept are concluded by settlement. If the case is tried and a favorable verdict obtained, the defendant has a right to appeal. Appeal from a plaintiff’s verdict, whether in State or Federal court, usually prolongs conclusion of the case for an additional 12 to 18 months following the trial results.
Will I have to attend court hearings?
There may be pre-trial court hearings in your case that you normally will not have to attend. We do anticipate your deposition will be taken at which time you will be asked many questions concerning your background, the events surrounding the occurrence, and details of your injuries or damages by the defendant(s) attorney. If your presence is needed for any court hearing, you will be notified well in advance. We will notify you when a trial date is set.
If a settlement offer is made, how will I know if it is fair and whether or not I should accept it?
Deciding whether to accept or reject an offer of settlement is often a difficult decision. Based on our experience and knowledge of results in similar cases, we can advise you of the advantages and disadvantages of going to trial vs. settling out of court. We do our best to always answer your questions so that you can decide whether a settlement offer is fair. The decision to settle, however, is always ultimately your decision.
What if I have questions during the litigation process or there are things I don’t understand?
We try to keep you informed of what may be happening in your case. We are also available to answer your questions. We consider you a part of the team and meaningful communication is important to make sure the claim is presented properly and effectively.
I'm not the "suing" type. Is there any way my claim can be resolved without actually filing a lawsuit?
You should know that the vast majority of personal injury claims are resolved before a jury reaches a verdict at trial. Many cases are settled even before a lawsuit must be filed. The ultimate decision about whether to file a lawsuit at all is yours. We are committed to helping you reach a satisfactory conclusion to your claim, whether by a lawsuit and trial, or by an out of court settlement.
Will my case go to trial if we do have to file suit?
Most lawsuits that are filed are settled before trial. Regardless, we prepare every case as if it might ultimately be decided by a jury. We believe in being prepared in the event an agreement between the parties cannot be reached. At the same time, our philosophy is to aggressively pursue resolution of claims at all stages in the case, so that the process does not become unduly difficult, burdensome, or expensive for you, and so that we obtain the best results possible.
Personal Injury
Products Liability
Medical Products Liability
Auto Accidents and Injuries
Air Pollution Injuries
Workers Compensation
Water Pollution
Construction Site Injuries
Electrical Injuries
Fire Loss
Tire Tread Separation
Nursing Home Abuse/Neglect
Premises Liability and Falls
Burn Injuries
Electrocution Accidents
Wrongful Death
Our fees are contingent, based on a percentage of the settlement awarded at trial or negotiated prior to the trial. If a settlement or verdict in our favor is not achieved, you owe us nothing.
Products Liability Information »
The Law Offices of James F. Swindoll takes on lawsuits over defective and unsafe products. These suits are known as “product liability cases.” If you have been injured or have lost a loved one because of an unsafe product, please call us and let’s talk about your case. You have nothing to lose. We will not charge you for our phone conversation or first meeting. If we take your case, we will do so on a contingency fee basis, so that if we recover no money for you, you will owe us no money.
Generally, products that are unsafe because of defect are of two types: (1) products that are improperly designed and (2) products that, although they may be designed well, are not properly manufactured. A manufacturer may be liable in Arkansas for injuries caused by either type of defective product. A manufacturer also may be liable for failing to warn users of a dangerous aspect about the product, if the danger was not obvious to an ordinary user of the product.
Here is what we believe should be done early in any product liability case, even before filing the lawsuit if the filing deadline and other circumstances allow:
It is said of modern-day lawsuits that they are won not in trial but in the preparation for trial. This is true especially of product liability cases, for several reasons. First, product liability suits are much more complex, expensive, and time-intensive than other types of lawsuits. Substantial work on the case must commence at the outset; waiting until a few months before trial may be too late to thoroughly prepare. Second, product liability cases usually are vigorously defended. Manufacturers go to great lengths to defend their product, and early settlements are rare. This means a lawyer handling a product case has to exhaustively prepare the case as though it will be tried. Third, most cases eventually do settle and are not tried. But a product case likely will not settle for what it is worth if the plaintiff’s lawyer has not prepared the case as though it will be tried. Fourth, if a product case is tried, the verdict assuredly will be disappointing if the case was poorly prepared. In short, hard work and preparation early in the case are essential to victory, whether in settlement or at trial.
Priority Number One at the outset of the case is to get the product and lock it away. If, for example, the product is a totaled vehicle, buy the salvage from the insurance company that insured the vehicle. Have the wreckage transported carefully to a covered garage or warehouse that you control. Lock the doors and tell no one where the vehicle is. If it later turns out that you don’t have a good case, then the salvage can be sold. But if you don’t get the vehicle and someone else does, then it may be gone forever. If you have no product, then you have no product liability lawsuit—plain and simple. Incredible as it may seem, there have been instances where wrecked vehicles that were the subject of defective auto cases “mysteriously” disappeared, sometimes even from locked warehouses! Thus, the importance of sheltering the product in a secret place cannot be overstated.
Depending on the type of product case at issue, it may be essential to photograph the scene close to the time of the injury. For example, in a vehicle rollover case, one cannot take too many photos of the scene before the vehicle has been moved. Film is cheap, and one good photo is worth more than a thousand words of the best lawyer. Shoot far-away photos, close-up photos, photos from various angles, photos of gouge and skid marks on the pavement, photos of scattered debris, photos with reference points and measuring devices shown—photos of everything you can think of.
Once the defective product is safeguarded from theft and tampering, and photos are taken of the product and site, the next task generally is to obtain all product documentation available. First, obtain all documents that show the history of the article, including the date of original sale and every seller in the chain of distribution, from the manufacturer to the final retail dealer. Determine whether the article was modified at any time after it left the manufacturer and, if so, all facts concerning the modification.
Get all written material that came with the product when it was sold. This includes all packaging, instruction manuals, warranty information, written warnings and disclaimers, foreign language versions, etc. Hunt down all source material about the product that shows a complete description of the product and its component parts, all sources for those parts, schematics of the product and components, technical papers, and so forth. Obtain all marketing information like pertinent website pages by all parties in the chain of distribution (you should print and bookmark the sites!), advertisements about the product, brochures, and displays.
Buy several new identical products for later testing and use at trial. Often, designs and product literature change or become unavailable by the time the case is tried. Buying exemplars at the beginning of a case may profit greatly later when the manufacturer claims that the original engineering drawings no longer exist as a result of a corporate destruction program. If you have exemplars, it may not matter that you cannot get the original plans.
Also, in a design defect case, you will have to show that a safer alternative design was feasible when your product was sold. So, if any competitor products employ the safer design then buy them for use in your case.
1. Call the police. Do not move any vehicles until after the police arrive (unless you have to for safety reasons or state law such as current Arkansas law which requires you to move to the side of the road).
2. Courteously ask for the other driver's license and insurance card. Write down all information about the other driver, including name, address, date of birth, driver's license number, name of insurance company, and policy number.
3. Also note the license plate number, make, and model of the other car. If a large truck is involved, write down everything that is printed on the side of the truck including any numbers.
4. Except as advised above, avoid talking with the driver and passengers in the other car. Do not tell them you were at fault or that your insurance will pay for their damage or injuries. Don't argue with them either.
5. Stay calm and courteous when the police arrive. In talking with the police, follow these guidelines:
* Tell the police in detail what happened.
* Be truthful, but do not say you were at fault.
* Do not make guesses about time, speed, and distance. Guess-timates often are very wrong.
* Tell only the officer if you suspect drug or alcohol use by the other driver, or if you notice anything else unusual, like the driver switching places with a passenger after the collision.
* Do not say that you feel fine and are not hurt. Some injury symptoms do not surface for days. It is better, if it is the truth, to simply say that you are shaken up.
* If the officer gives you a ticket, do not argue or protest. You may sign the ticket to acknowledge receipt that does not mean you agree with the officer.
* If you are not ticketed, ask the investigating police officer for his/her card, or
anything else showing the officer's name and law enforcement agency.
* Ask the officer to write on the accident report that you desire not to be contacted by or receive solicitations from attorneys, chiropractors, investigators,
etc. concerning the accident.
6. Look around for witnesses, and ask all of them for their names, addresses, home and work numbers. Write down this information for your lawyer.
7. If you suspect that you may be hurt, see a physician immediately. Tell the doctor that you've been in an accident.
8. Call your insurance agent as soon as possible after the accident and tell them about the accident and cooperate with them.
9. Do not do any of these things until you first talk with your lawyer:
* give a statement to any insurance company representative;
* sign any paper for anybody, even your own insurance agent (except for a citation, if the police officer requests);
* make any appearance or plea if you are ticketed for the accident; sell or release your vehicle salvage.
10. If a strange or unknown person appears at the accident scene and offers you a ride to a chiropractor's office or lawyer's office, or if you are called later by a stranger who learns of the accident, get his name and tag/phone number. Do not talk or cooperate with him.
© 2009 James F. Swindoll