What is 'Pain and Suffering' in a Personal Injury Case?
Learn about this key component of damages and the factors that go into its calculation. Most people have heard the term "pain and suffering," but they may not necessarily know that it is a key component of many a personal injury case. But what is pain and suffering from a legal perspective, and more importantly, how is it calculated for the purposes of an injury-related insurance claim or lawsuit? What is "Pain and Suffering"? There are two types of pain and suffering: physical pain and suffering and mental pain and suffering.Physical pain and suffering is the pain of the plaintiff’s actual physical injuries. It includes not just the pain and discomfort that the claimant has endured to date, but also the detrimental effects that he or she is likely suffering in the future as a result of the defendant’s negligence. Mental pain and suffering results from the claimant's being physically injured, but it is more a by-product of those bodily injuries. Mental pain and suffering include things like mental anguish, emotional distress, loss of enjoyment of life, fear, anger, humiliation, anxiety, and shock. Mental pain and suffering is basically any kind of negative emotion that an accident victim suffers as a result of having to endure the physical pain and trauma of the accident. Very significant mental pain and suffering can include anger, depression, loss of appetite, lack of energy, sexual dysfunction, mood swings, and/or sleep disturbances. Even more severe mental pain and suffering can even constitute post-traumatic stress disorder (PTSD). Mental pain and suffering, like physical pain and suffering, includes not just the effects that the victim has endured to date, but also the mental pain and suffering that he/she will more than likely suffer into the future. Examples of Pain and Suffering Let’s look at a couple of examples of how car accident victims might experience pain and suffering. First, let’s take a more severe case. Let’s say that someone got into a car accident that caused multiple broken bones along with a severe concussion. That is a pretty serious accident. As a result of these injuries, the claimant became depressed and angry, had difficulty sleeping, and experienced a significant loss of appetite. As a result of these problems, the claimant was referred to a psychologist and a therapist. All of these problems are directly related to the accident, and the claimant is entitled to compensation for mental pain and suffering due to the accident. Mental pain and suffering can sometimes get so bad that it prevents the victim from returning to work even after the physical injuries have healed. In this case, this victim’s depression due to the accident might linger long after his/her broken bones and concussion healed. In such a case, the victim would still be able to claim any damages related to the mental pain and suffering, such as lost income. Next, let’s look at a less serious example of mental pain and suffering. Let’s say that someone gets into a car accident and suffers back strain. As a result of the back strain, the claimant is prevented from exercising for several weeks, and, during this time, is prevented from running in a marathon that they had been training months for. As a result of missing the marathon, the claimant is angry, frustrated, unhappy, and maybe even a little depressed. This claimant has no need for mental health assistance, but these effects, while comparatively minor, still qualify as mental pain and suffering. How to Calculate Pain And Suffering Judges do not give juries much in the way of guidelines for determining the value of pain and suffering in a personal injury lawsuit. There are no charts for juries to look at in order to figure out how much to award. In most states, judges simply instruct juries to use their good sense, background, and experience in determining what would be a fair and reasonable figure to compensate for the plaintiff’s pain and suffering. You may have heard about a "multiplier" being used in personal injury cases, where pain and suffering is calculated as being worth some multiple of the injured person’s total medical bills and lost earnings (which are called the claimant's “special damages”). Often, the "multiplier" is considered to be somewhere between 1.5 and 4, meaning that the pain and suffering is 1.5 to 4 times the value of the claimant's special damages. However, the "multiplier" concept is only a very rough estimate and does not apply in all personal injury cases. It is most useful in minor injury cases, where the total damages are less than $50,000. But even in small cases, you should be very careful about applying the "multiplier." There are many other factors that affect the value of the pain and suffering component of a personal injury case. These include: whether the plaintiff is or will be a good or bad witness whether the plaintiff is likable whether the plaintiff is credible whether the plaintiff’s testimony regarding his or her injuries is consistent whether the plaintiff is exaggerating his or her claims of pain and suffering whether the plaintiff’s physicians support the plaintiff’s claims of pain and suffering whether the jury thinks that the plaintiff lied about anything, even something relatively minor (as a general rule, if a plaintiff lies, the plaintiff loses) whether the plaintiff’s diagnosis, injuries and claims make common sense to the jury whether the plaintiff has a criminal record Link to original article
DUI or DWI Punishments and Penalties
Many DUI and DWI offenders face stiffer penalties than mere fines. As with any criminal charge, a person charged with driving while intoxicated (DWI) or driving under the influence (DUI) is presumed innocent until proven guilty. If guilt is established (often through the defendant's own plea or after a jury trial), the penalty will depend on state law, as well as on any aggravating circumstances (such as the presence of an open bottle of liquor in the car) and the defendant's cooperation with the police. Jail Time In all states, first-offense DUI or DWI is classified as a misdemeanor, and punishable by up to six months in jail. That jail time may be increased under certain circumstances. For example, some states mandate more severe punishments for DUI or DUI offenders whose blood alcohol concentration (BAC) at the time of arrest was particularly high—for example, .15% or .20%, very high considering the legal limit of .08%. Many states also require minimum jail sentences of at least several days on a first offense. Subsequent offenses often result in jail sentences of several months to a year. For a DUI or DWI that's been classified as a felony—either because the driver killed or injured someone or because it's the driver's third or fourth DUI—jail sentences of several years are not uncommon. Again, this depends on state law, the facts of the case, and the discretion of the judge at trial. Fines In addition to jail sentences, courts can and do impose high fines for DUI or DWI. These range from $500 to as much as $2,000. Driver's License ProblemsA DUI or DWI offender stands a good chance of having his or her license suspended for a substantial period of time (either by court order or mandate of the state motor vehicles department). For example, many states suspend a first offender's license for 90 days; a second offender's license for one year; and a third offender's license for three years. Refusal to take a blood, breath, or urine test can result in a license suspension regardless of the finding of guilt, in addition to other penalties in many states. However, sometimes it's possible to obtain a "hardship license" to drive to and from places like work and school during a suspension. Some states take further steps to make sure the person (particularly a repeat offender) doesn't get back on the road. The state may confiscate the car or cancel its registration, either temporarily or permanently. Or the state may require an ignition interlock device (IID) to be attached to the DUI or DWI offender's car. This device requires the driver to blow into a small handheld alcohol sensor unit attached to the dashboard. If the person's BAC is above a preset level (usually .02% to .04%), the car won't start. Alternative Forms of Punishment A number of states' court sentences may include alcohol teaching and prevention programs, treatment for alcohol abuse, assessment of a person for possible alcohol or drug dependency or addiction, and community service or victim restitution. The judge may recommend these steps instead of jail time or paying fines, most likely for a first offender. Or the judge may combine them with other penalties. In Texas, for example, minors convicted of a DUI must perform community service, in addition to any other penalties. Young Offenders A minor who is arrested for driving while under the influence of alcohol or drugs won't get any breaks from punishment -- in fact, being young is likely to make matters worse. The legal drinking age is 21 in most states, so drinking before that age is a separate crime. In addition, some states penalize underage drivers based on lower BAC levels than the standard .08% for adults, typically .02%. The state may impose adult sentences on minors, and underage DUI offenders are likely to have their licenses suspended for one year. Other Consequences In addition to legal penalties, the driver's insurance company may cancel the insurance policy or drastically increase the rates because of the hit to the person's driving record. And a drunk driving charge stays on a person's driving record for many years. Plus, if the driver's license is suspended, the insurance company is likely to cancel the insurance policy. Certain jobs may be closed to those who've been convicted of DUI or DWI, such as driving a school bus, delivery van, or any other vehicle as part of their employment. Finally, the driver may face a separate civil lawsuit if accident victims decide to sue for property damages or bodily injuries. Link to original article
Visa Re-validation Rule
A nonimmigrant alien who has previously presented a visa for admission to the US may be readmitted (a) in the same nonimmigrant classification as shown on an expired visa, or (b) in a different nonimmigrant classification than shown on an expired or valid visa if a change of status occurred while the individual was in the US. The nonimmigrant alien’s absence from the US must be limited to 30 days or less, and the individual’s travel must be limited to certain geographic locations. Admission under this procedure is called “automatic visa revalidation” (also known as the “Contiguous Territory Rule”). Automatic visa revalidation is applied differently depending on the individual’s nonimmigrant visa classification. Most nonimmigrants may rely on automatic visa revalidation to apply for readmission after travel to a “contiguous territory” (Canada or Mexico). Nonimmigrants in F or J classification may rely on automatic visa revalidation after travel to a “contiguous territory” or “adjacent islands other than Cuba.” Adjacent islands include Saint Pierre, Miquelon, the Dominican Republic, Haiti, Bermuda, the Bahamas, Barbados, Jamaica, the Windward and Leeward Islands, Trinidad, Martinique, and other British, French, and Netherlands territory or possessions in or bordering on the Caribbean Sea. To rely on automatic visa revalidation, a nonimmigrant alien must meet the following conditions: Form I-94 showing an unexpired period of initial or extended authorized stay.If the individual has applied for and received an extension or change of nonimmigrant status while in the US, a Form I-797, Notice of Action.Nonimmigrant aliens (including spouse or children) applying to be admitted in F, M, or J classification must also present one of the following documents as applicable: - F / M classification: A valid Form I-20, Certificate of Eligibility for Nonimmigrant, issued by the school at which the Department of Homeland Security has authorized the principal nonimmigrant’s attendance. - J classification: A valid Form DS-2019, Certificate of Eligibility for Exchange Visitor Status, issued by the authorized program sponsor showing the unexpired period of stay.A valid passport with a nonimmigrant visa, whether valid or expired, used for a prior admission to the US. If the individual’s current passport does not contain the nonimmigrant visa, the individual must present a prior passport with a visa. An expired nonimmigrant visa includes (1) a visa that is no longer valid because of the passage of time and (2) a visa that is no longer valid because the maximum number of entries has been used. Apply for readmission to the US after an absence of 30 days or less solely to a contiguous territory (Canada or Mexico). Nonimmigrant aliens applying to be admitted in F or J classification may apply for readmission to the US after an absence of 30 days or less solely to a contiguous territory or adjacent islands other than Cuba. Apply for readmission without having applied for a visa while outside of the US. A nonimmigrant who, while in a contiguous territory or on an adjacent island, applied for a new visa, and that visa application is pending or has been denied, is no longer eligible to be readmitted under without a valid visa. Customs and Border Protection will admit nonimmigrant aliens who meet the above requirements for automatic visa revalidation. The admission will be in the same nonimmigrant classification as shown on the valid Form I-94 that is presented. Exceptions 1. Visa Waiver ProgramPersons admitted to the US under the VWP may only be readmitted for the balance of the original Visa Waiver Program admission. 2. Nationals of Iran, Syria, Sudan, and CubaNationals of the countries listed above are not eligible for automatic revalidation of a visa. Such individuals must present a valid visa when making an application for any admission to the United States and may be admitted only in the nonimmigrant classification shown on the visa. Link to original article
In Fight Against Violent Crime, Justice Dept. Targets Low-Level Gun Offenders
May 7, 2018WASHINGTON — Bobby Amos stood outside of an Episcopal church in Alabama last spring, begging police to kill him. He had been suicidal earlier and held a gun to his head, his wife said, and she had hidden the weapon at the church, where he had followed her to retrieve it. There was little to indicate that Mr. Amos, 39, was a danger to anyone but himself that day. He was arrested unarmed outside the church, in need of treatment and counseling, according to his lawyer, Fred Tiemann. Police recovered the pistol from the building. Federal prosecutors, citing Mr. Amos’s conviction of felony robbery as an adult at age 15, instead charged him with illegally possessing a firearm. He pleaded guilty in November and is serving a three-year sentence in federal prison. Urged by Attorney General Jeff Sessions to punish offenders as harshly and as quickly as possible, federal prosecutors have increasingly pursued low-level gun possession cases, according to law enforcement officials and an examination of court records and federal crime statistics. Mr. Amos’s conviction was part of the Justice Department’s broad crackdown on gun violence during the first 15 months of the Trump administration.
Presumptions of Fraud
The discharge (legal write-off) of credit card debts will be a little less likely to be challenged. As of April 1, 2016 creditors will have a slightly harder time showing that recent credit purchases or cash advances were fraudulent and so can’t be written off (“discharged”) in bankruptcy. That’s because to qualify for a “presumption of fraud,” creditors will need to have a higher dollar amount threshold before that presumption kicks in. The “presumption of fraud” makes it easier for a creditor to object to the discharge of a debt. With the new higher threshold, the “presumption” will not kick in quite as often, to the benefit of consumers filing bankruptcy. If you’ve made credit purchases or cash advances in the last few months and are considering filing bankruptcy with a Louisville bankruptcy lawyer, this may benefit you. Discharge of Debts in bankruptcy When you file bankruptcy most kinds of debts are discharged so that you never have to pay them. But certain select debts are never discharged—such as past-due child support. And some kinds of debts are discharged unless the creditor objects to the discharge and persuades the bankruptcy court that certain conditions are met so that discharge is not legally appropriate. Debts of this last kind—that may be objected to—include those allegedly incurred through fraud or misrepresentation. Among those are recent ‘luxury’ purchases and cash advances. Under certain circumstances, the Bankruptcy Code says those “are presumed to be nondischargeable.” How does this “presumption” work, and how could the upcoming adjustments in the law help you? The Fraud Exception to the Discharge of Your DebtsOne of the principles of bankruptcy is that you can’t purposely cheat a creditor in the incurring of a debt and then later discharge that debt through bankruptcy. Specifically, a creditor can challenge your ability to write off a particular debt if it was “obtained by… “false pretenses, false representation, or actual fraud… .” See Section 523(a)(2) of the Bankruptcy Code. What’s a “Presumption”?As mentioned above, a creditor has to object to the discharge of a debt that it thinks you incurred fraudulently, or else that debt will be still be discharged. In its objection, the creditor normally has to provide evidence to the court proving your alleged fraud or misrepresentation. A presumption of fraud allows the creditor’s objection to going forward even without direct evidence of fraud. All it needs to show that certain circumstances arise that give rise to a “presumption” that you’ve committed fraud in how you incurred the debt. The two sets of circumstances in which a presumption of fraud arises are with purchases of “luxury goods or services” and with cash advances, both occurring within a certain amount of time before the filing of your bankruptcy case. The “Luxury Goods or Services” PresumptionBefore April 1, 2016, if a consumer buys more than $650 in “luxury goods or services” in the 90 days before filing the bankruptcy, that debt is presumed not to be dischargeable. That means that the creditor may not need to provide direct evidence that the debtor did not intend to pay the debt at the time the purchase. The rationale behind this presumption is that there is a sensible chance that within that short of a time before filing bankruptcy most debtors would either know that he or she intended to file bankruptcy or would be considering doing so. If so, then at the time of purchase there is a greater likelihood the debtor did not have the intention to pay the debt arising from that purchase. This presumption only applies to the purchase of “luxury goods or services.” But the meaning of this phrase is much broader than it sounds. It includes everything except goods or services “reasonably necessary for the support or maintenance of the debtor or a dependent of the debtor.” As of April 1 the $650 threshold of “luxury goods and services” purchased within the 90 days before filing is increasing from $650 to $675. That means that you can make slightly more in purchases during this time period before the presumption kicks in. So this advantage for creditors is being narrowed a little. (See Section 523(a)(2)(C)(i)(I).) The Cash Advances PresumptionSimilarly, if a consumer incurs a debt of more than $925 ($950 starting April 1) through one or more cash advances made in the 70 days before filing the bankruptcy, then that debt is presumed not to be dischargeable. Again, that means that the creditor may not need to prove through evidence that the debtor did not intend to pay the debt at the time the cash advance. (See Section 523(a)(2)(C)(i)(II).) The Presumption Can Be “Rebutted” We are saying that the creditor MAY not need to prove fraud because that occurs only if you don’t respond by “rebutting that presumption.” Once the creditor “raises the presumption” by alleging the necessary facts to fit within the presumption, you can force the creditor to back up the presumption with evidence. The creditor can win with only the presumption of fraud if you don’t push back. But with the right facts, you can defeat the presumption and not have to pay the debt. Assume, for example, that you made a cash advance of more than $925/$950 within the 70 day period before filing bankruptcy, and the creditor objects to the bankruptcy court. If you, in fact, did intend to pay the debt at the time you made the purchase, you would respond to the court about your honest intent. You and your attorney would do this through your own direct testimony about your intent and/or by establishing other relevant facts, such as what happened in your financial life after you made the cash advance which then drove you to file bankruptcy and seek to discharge that debt. A Creditor Can Bring Evidence of Fraud without a PresumptionOn the other hand, a creditor can object to the discharge of a debt on grounds that you didn’t intend to pay it at the time of the purchase or cash advance or some other kind of fraud, and do so without the presumptions. For example, a creditor could object to the discharge of a debt that was incurred through a misrepresentation, such as with a credit application that greatly exaggerates a debtor’s income or assets, a year or two before the bankruptcy filing. A presumption helps a creditor in the circumstances where they apply. But if a presumption doesn’t apply, the creditor could still potentially challenge your ability to discharge that debt. The creditor would have to give the court strong evidence that you did not intend to pay the debt, which is usually not easy to come up with. That’s why creditors are not as likely to challenge purchases and cash advances that were made outside the presumption periods. Avoiding These Presumptions of FraudYou can avoid giving a creditor the advantage of these presumptions. First, you can avoid using any credit and making cash advances in the few months before filing bankruptcy. And, second, if you’ve already incurred made such purchases and/or cash advances you could just hold off on filing bankruptcy until enough time has passed to get beyond these 70 and 90-day presumption periods. Remember again that if a creditor thinks it has evidence that you incurred a debt that at that time you did not intend to pay, or that there was some other kind of fraud or misrepresentation, the creditor may still decide to raise the issue without the benefit of a presumption. But if you avoid filing within the 70/90-day presumption periods you will decrease the chance that a creditor will challenge the discharge of its debt. Link to original article
Visit Us: 1109 Pithon Street Lake Charles, LA 70601 |
Visit Us: 1109 Pithon Street Lake Charles, LA 70601 |