Alabama Car Accident Litigation Guide For Lawyers

This Alabama Car Accident Litigation Guide for Lawyers will teach you the nuts and bolts of how to handle a client’s car accident injury case, the legal doctrines involved, how to avoid common pitfalls, and how to reach the best result possible for your client.

While I will go in depth at times into relevant case law and statutes, this is not your typical legal treatise. I will attempt to refrain from summaries of case law (even 1L law students know how to use Westlaw.) I’ve tried to cut all the “fluff” out, just the stuff you really need to know. Thus, the bulk of this book is practical advice. Taking an Alabama car accident case from intake to disbursement, including all of the hurdles you may have to jump during the race.

I’ve handled strictly personal injury cases in my entire legal career.  I wouldn’t know where to start in a domestic relations case or a bankruptcy case.  If I did want to dive into a brand-new practice area, I would hope there was lengthy article that existed to give me all the practical tips.  That’s my hope for what this is – an Alabama Car Accident Litigation Guide for Lawyers.

Alabama Car Accident Evaluation: EVALUATING THE “BIG 4” (L.D.I.P)

I have attempted to keep this guidebook in a logical and chronological order. However, at the outset, I think it is important we have the big picture laid out, even before we decide to take on a potential client’s case. Knowing the big picture can guide our actions on a case, even before we decide to meet with the potential client for a consultation.

In any personal injury case, you must evaluate what I call the “Big 4” of the case, the L.D.I.P.:

• Liability
• Damages
• Insurance Coverage
• Parties

Let’s briefly look at each of the L.D.I.P, the Big 4:

Liability – “Liability” is essentially the determination as to your odds of winning the case in addition to other factors that may tamp down the value of the case or ramp up the value of the case. In other words, it’s the facts as to how the incident happened.  For example, in a car accident case, is there evidence that your client contributed to the collision? If so, that tamps down the value due to the contributory negligence affirmative defense in Alabama. Alternatively, if the person who hit your client was drunk, that ramps up the value of the case. Punitive damages may be on the table.

Damages – This is oftentimes the most important element in determining the value of a case and how to proceed on a case. The question becomes whether you can make your client’s damages well-defined, visual, and persuasive to an insurance adjustor or a jury. Compensatory damages in Alabama personal injury cases include:

• Pain
• Future Pain
• Mental Anguish
• Medical Expenses
• Loss of Income
• Loss of Future Income/Loss of Earning Capacity
• Permanent Injury
• Disfigurement (scars, burns, etc.)

Not every case will have all eight types of compensatory damages present, but you want to examine each category and see if you have a valid argument on each. Punitive damages may also be available if the defendant’s actions were “wanton”, which simply means the actions were carried out with a reckless disregard for the rights or safety of others.

Insurance Coverage – In many personal injury cases, especially in car accident cases, determining the amount of available insurance coverage is critical.  For example, if your client was in a car accident and had their leg amputated, your client’s case may be worth millions of dollars.  But are there millions of dollars to get? In most instances, the answer will be no. Determining how much available insurance coverage is available can be critical for numerous reasons.

Parties – They do not teach this in law school, but one of the most important factors in evaluating a personal injury case is the credibility and likeability of the parties.  After all, if a settlement cannot be reached, a jury of normal people will decide the case (absent the failure of a party to demand a jury.) Normal people make decisions based on a party’s likeability, credibility, and whether they are sympathetic.

The same exact accident can happen with the same exact injuries, but if your client is a sweet grandmother on her way to church, her case will be worth more than the client who is “rough around the edges.” The same is true for evaluating the credibility and likeability of the tortfeasor. We must imagine how the parties will present in a courtroom in front of twelve of their peers.

Evaluating the Big 4 as soon as possible is critical because it can guide your actions pre-intake.  For example, if there is a corporate defendant and serious damages, you may want to send an investigator to the scene immediately to lock down surveillance video footage and take photos. Or if it sounds like liability is in dispute and the damages are insignificant, you can be prepared to temper the potential client’s expectations at the initial consult or even decline to take the case.

In either event, knowing the Big 4 and being able to immediately analyze those factors will make you a more efficient advocate for your client and make your law practice more successful.

UNDERSTANDING ALABAMA CAR INSURANCE POLICIES

It’s important to know what types of car insurance coverage may come into play during a personal injury claim:

Liability Coverage

The tortfeasor should have liability coverage.  It’s required by law.  The minimum amount that a person is required to have in Alabama is $25,000 per injured person, $50,000 per incident. The “per person” limits is the maximum amount of money any one injured person can receive. The “per incident” limits is the total amount of money all people injured in the same accident can receive. Liability coverage is what you are seeking as compensation from the tortfeasor’s insurance company.

Medical Payments Coverage

This is insurance coverage your client might have under their own car insurance policy. It is not required by law.  Medical payments coverage usually comes in amounts of either $1,000, $2,000, $5,000, or $10,000.  It covers medical costs up to the limit of the coverage.  It will help pay for hospital bills and other medical costs.

Uninsured/Underinsured Motorist Coverage

This is an extremely important piece of insurance coverage that comes into play in many personal injury cases.  A recent study has shown that 19.5% of drivers in Alabama don’t have valid car insurance and another good chunk have the minimum limits of $25,000.  If your client has severe injury, $25,000 will not be enough.

Uninsured/underinsured motorist coverage (UM/UIM) will provide compensation to your client if he is injured by someone without car insurance or by someone who doesn’t have enough liability insurance coverage. We will do a deep dive on this later in the book.

INTAKE IN ALABAMA CAR ACCIDENT CASES

I start every intake telling the potential client that they are in the right place.  People who have been injured in car accidents are usually confused, stressed, and (obviously) in pain. You have to remember that most of them have never hired a lawyer and that they may be intimidated with the process.  Put them at ease.  Make sure your actions show you care.

In general, during the intake process (i.e. the “free consultation”), you want to gather all relevant information from the client.  Our law firm uses a “new client questionnaire” which asks our client to fill in their biographical data, injuries, healthcare providers, and other basic information needed to open a file. I have found this to be very helpful and to be a time-saving measure when compared with asking the client verbally and writing down their answers.

I generally tell people: “I’m going to ask you a lot of questions, so just bear with me.  Once I know all the answers to these questions, I’ll be in a position to tell what you we’re going to do.”  I always make sure to ask them about the details of the collision, where they were going to, where they were coming from, their memory of the collision, their injuries, their medical treatment providers, whether they have health insurance, their current symptoms, their communications thus far with the insurance companies, and questions about their own car insurance policy coverages.

In addition to taking notes, you usually need to make copies or photos of the following for the client’s file:

• Any health insurance cards, including Medicaid or Medicare
• Driver’s license
• Photos of injuries, the vehicles, and the scene
• Any important documents the client has related to the crash or their treatment

A client must understand and trust you are the person to handle their case. You want to explain the process of how you will handle their claim, set their expectations, and explain to them the applicable law in laymen’s terms. It is important to set client expectations early so that they do not expect a million-dollar settlement if their case isn’t even worth six-figures. Their expectations also need to be set about timing.  Very few personal injury cases will be resolved in a few months.  These cases take time. Make sure they understand that. Try to answer all of their questions honestly and empathetically.  Every client deserves honesty and empathy.

You will then want to have the potential client officially become a client by signing a fee agreement and engagement letter defining the scope of representation.  You will also need to have the client sign a HIPAA authorization to allow you to obtain their medical records and bills (some healthcare providers, such as the largest in my hometown, require their own specific HIPAA form, so have those on hand in your office.) In addition, forms may need to be signed that authorize you to communicate with your client’s health insurer. For example, BCBS has their own specific form that must be initialed on the first page and signed on the second page.

Our firm also provides our new clients with a “new client folder.”  This folder includes information about our firm, every employee’s business cards, a list of things to refrain from during the claims process (social media posts, talking with the insurance companies, etc.), and a copy of my book Crash Course: Alabama Car Accident Law 101. Educating the client as much as possible on the front end is critical to ensuring a healthy attorney-client relationship. Sending the client home with information about how this process will work is imperative.

We also provide the client a document that explains our “client communication procedures.” Setting expectations for how and when we communicate with our clients is critical.  One of the most common complaints that lawyers get is the lack of communication with the client.  We make clear to our clients that the lawyers typically don’t take unscheduled phone calls, but that we will gladly set aside fifteen minutes the following day to address all of the client’s concerns.  This protocol has worked wonders for my productivity and stress levels.

Once the intake meeting is concluded, all documents must be organized and provided to your designated intake assistant (this can be a paralegal, legal assistant, or even a receptionist). Their job is to open a file. Our firm has written procedures for our paralegals and legal assistants to set up a file. In short, we run a conflict check to ensure no one has conflicts of interest, we order initial medical records/bills from EMS and the hospital, we save all documents/photos/videos to the electronic file, send out letters of representation to the car insurance carriers, and send letters to health insurance companies notifying them of subrogation rights. If the case merits it, we may send out preservation letters via certified mail or hand-delivery to ensure critical evidence is preserved.

If the case has disputed liability and/or the damages are significant, you may need immediate investigation.  Contact any known witnesses and obtain their statements. We are a one-party recording statement in Alabama, so feel free to record the telephone discussion with an independent witness. Go to the scene, take photos, and see if there may be potential video surveillance footage.  If so, land a preservation letter on the owner of the surveillance camera. You may want to consider hiring an expert accident reconstructionist to download the data from the vehicles’ Engine Control Module (ECM).

Essentially, in some cases, you will need to act quickly to gather all the evidence possible. Evidence is like water in the sun. Witnesses forget, or they move out of state, or they change their phone number. Tire marks erode with the weather. Traffic signal timings can be changed. Vehicle data goes away when the vehicle is sold for scrap to that junk yard in west Texas (been there, done that.) Video surveillance footage overwrites. Get out there and get your evidence!

PITFALLS & AFFIRMATIVE DEFENSES IN ALABAMA CAR ACCIDENT CASES

There are several pitfalls and defenses to be aware of in Alabama car accident cases.  You should be aware of the following issues even before you decide to take on a client’s case:

Should You File a Personal Injury Lawsuit Immediately?

We have to do this a couple of times every year.  Alabama law is somewhat unique in that a “personal injury claim dies with the plaintiff” if a lawsuit has not been filed pursuant to our state’s survival statute, Alabama Code Section 6-5-462.  Immediately filing a lawsuit is commonly necessary in cases involving nursing home negligence, but can also be necessary in a car accident case.

In one case I had a few years ago, a lady hired me who had been in a car accident and fractured her ankle.  She had Stage 4 cancer, which took her life about three months after her car accident.  If I had not filed her car accident lawsuit immediately, then the car accident case would have ceased to exist under Alabama law. Her children were able to receive the settlement money after her death.

In another case where an 18-wheeler left our client in a coma with a bilateral intracranial hemorrhage, we filed a lawsuit immediately to preserve his claim for pain and mental anguish. He ended up passing away the day after I filed the lawsuit. We added a count for wrongful death subsequently, but it was important to preserve pre-death damages (pain, mental anguish, etc.) in order to get the most compensation possible. If I had waited to sue, my only legal theory would have been wrongful death and the sole measure of damages for a wrongful death claim in Alabama is punitive.

If your client dies from the injuries sustained in the car accident and you haven’t filed a lawsuit, you can still pursue a wrongful death claim.  However, if the client dies from something unrelated to the collision and no lawsuit has been filed, then their case has died with them.

Is the Defendant Dead?

This is something to be on the lookout for, especially in car accident cases.  If the defendant died in the car accident, the only claim you can make is against the defendant’s estate.  The defendant’s car insurance will still be responsible for paying the claim, but it’s important to know well in advance of the statute of limitations that the defendant is dead.  Therefore, even if the defendant did not die at the scene, if the defendant is elderly, you must do an obituary search at least 1 year after the accident if the case hasn’t settled yet.

If you file a lawsuit against a dead person and their family did not set up an estate and the statute of limitations period expires, you may be screwed. See Maclin v. Congo, 106 So. 3d 405 (Ala. Civ. App. 2012). You could lose your client’s case on a technicality because there is a good argument that a lawsuit against a dead person is a nullity. There is some conflicting case law on this issue, but avoiding this potentiality is the best course of action.

When a defendant is dead and you realize a lawsuit will have to be filed (i.e. settlement discussions aren’t fruitful), you need to check the probate records in the county of the defendant’s residence to see whether an estate has been opened.  If not, you will need to file the lawsuit and file a motion with the court requesting the court to appoint the County Administrator as the administrator of the deceased’s estate.  Then you must amend your complaint appropriately, naming this person in this capacity as the defendant in your case.

Are You Representing the Correct Plaintiff?

 This seems like a silly question, but there are situations where you think your client has a case, but they don’t have standing to bring the claim. This issue arises particularly in wrongful death claims. While I’ll dedicate an entire chapter later in this book to death cases, it’s important at the intake-stage to be aware whether the person you are meeting with has the capacity to be the correct plaintiff.  If not, you will want to reach out to that person to get their authority to pursue the claim.

In Alabama, when the deceased is an adult, only the personal representative of the deceased’s estate has standing to pursue a wrongful death case. Assuming the deceased never executed a will, then the probate judge for the county where the deceased resided can designate a personal representative.  Ala. Code § 43-2-42 sets forth the list of who has priority to be the personal representative.

When the deceased is a minor, then the custodial parent has the exclusive right to bring a wrongful death claim during the six-month period after the child’s death. If no lawsuit has been filed within that time period, then an estate must be established to pursue the case.

Representing 3+ Clients in Same Car Accident – Potential Conflict Situation

If three or more people are in a car accident, there is a chance you cannot represent all of them in a car accident case.  Since car insurance policies are written in per person/per incident amounts, a conflict can arise when you represent more than two people in an accident.

For example, if you represent three family members who were hit by someone with a 25k/50k policy, that means the most money available for each person’s claim is $25,000 and the most available for all three of them is $50,000.  Assume there is no underinsured motorist coverage in this hypothetical.  In this scenario, you are put in the perilous position of deciding how to divide up a $50,000 pie among your three clients.  This inherently creates a conflict of interest because one client getting more money necessarily means another client getting less.

You must explain this situation to all clients.  It is best to recommend that one of them hire another lawyer if you are uncomfortable with the situation.  If they are all comfortable with you continuing to handle all their claims, then get their permission in writing to do so and ensure it is signed. Review Alabama Rule of Professional Conduct 1.7  to ensure you comply with your ethical duties.

Claims Against Counties & Cities in Alabama Car Accident Cases

If the at-fault party is a municipality, county, or an employee thereof who was on the job at the time (i.e. a city utility truck rear-ended your client), you must file a notice of claim within the city/county as soon as possible.  There are templates for this online with a quick google search.  Claims against municipalities must have notices of claim filed with the city’s clerk-treasurer within six months pursuant to Ala. Code Section 11-47-23.  You have one year to file a notice of claim with a county. These must be signed by the client, so do not wait until the last day!

I cover this issue at this juncture of this guide so that you can mark the statute of limitations down correctly. While the statute of limitations for these cases is two-years, just like all negligence-based cases, the notice of claims period acts as an additional, “internal statute.”

Bankruptcy Pitfall

It is critical to ask your clients whether they are currently in bankruptcy.  If so, then you must notify their bankruptcy attorney of the client’s personal injury claim.  If you do not, you can lose their case on an estoppel technicality.  Their bankruptcy attorney must amend their list of assets in the bankruptcy process.  In addition, you will have to be appointed special counsel by the bankruptcy judge and any settlement (including your attorneys’ fees/expenses) must be approved by the bankruptcy judge after a hearing.

If you do not get approved as special counsel by the bankruptcy court before filing a lawsuit, the insurance defense lawyer will have an argument that your client is judicially estopped from bringing their claim.  You could lose a summary judgment motion on the issue.

Guest-Passenger Issues

When your client wants to bring a claim against the driver of the vehicle they occupied at the time of the wreck, this presents a legal hurdle in Alabama called the Guest Statute. The Guest Statute was enacted by the Alabama Legislature in 1935 and provides:

The owner, operator, or person responsible for the operation of a motor vehicle shall not be liable for loss or damage arising from injuries to or death of a guest while being transported without payment thereof, in or upon said motor vehicle, resulting from the operation thereof, unless such injuries or death are caused by the willful or wanton misconduct of such operator, owner or person responsible for the operation of said motor vehicle.” Alabama Code Section 32-1-2 

Given this statute, you cannot win a claim on behalf of a passenger against the driver of their vehicle unless one of three exceptions applies.  Let’s cover each of the three exceptions:

 

1. Material Benefit Exception — Your client was providing a “material benefit” to the driver. I took a case to the Supreme Court of Alabama on this issue, Hurst v. Sneed, 229 So. 3d 215 (Ala. 2017). Long story short, the “material benefit” does not necessarily have to be monetary payment to the driver.
2. Wantonness Exception – As the Guest Statute says, a passenger can hold his driver liable for injuries if the driver’s actions were wanton, as opposed to merely negligent. If the driver was drunk, racing, or doing something else with a “reckless disregard for safety”, then the Guest Statute won’t defeat your client’s claim.
3. Your Client is a Minor – There is some fuzzy case law on this, but if your client is too young and immature to consent to a legal status as a “guest”, then the Guest Statute won’t defeat the claim. To be clear, there is no brightline rule as to the exact age when this exception applies.

BEGINNING AN ALABAMA CAR ACCIDENT CASE

It is important to ensure letters of representation (“LORs”) are sent out to the at-fault driver’s insurance company. Insurance carriers will continue to call your client directly until they have your LOR on file. Our paralegals do this in car accident cases unless there are unique issues on liability (then I will craft one myself). In addition, you also want to determine whether your client has uninsured/underinsured motorist coverage (“UM/UIM”). In cases with significant injuries, it is likely you will need to make a UM/UIM claim.

While your client is getting medical treatment, it’s wise to start trying to determine the applicable insurance coverage available.  This will typically come from the at-fault driver’s liability insurance, any available UM/UIM coverage, and, if the damages merit it, you may want to consider other parties who could be liable. For example, is there a defective products theory? If the defendant was drunk driving, is there a potential dram shop case? Negligent entrustment of the keys to the heroin addict? Is there joint venture liability in that case with all the teens street-racing?

In any case with significant damages, you want to think outside the box in order to find full and fair compensation.

Even if there is limited coverage, you also want to eyeball the defendant’s potential assets.  I had a case involving serious injuries where the defendant was very wealthy but had read a Dave Ramsey book and only had $25,000 in liability coverage.  We were able to get the defendant to personally contribute towards a settlement.

So how can you find out the liability insurance limit in your case? In Alabama, a liability insurance carrier does not have to tell you the coverage limits during the pre-litigation phase. But there are ways to at least do a little research. It could be as little as $25,000 per person or millions, and it’s good to start collecting all intel you can.

Insurance companies such as National General and Acceptance Insurance usually only provide $25,000 in coverage, so you can make assumptions when those insurance companies are involved.  However, most other carriers have a wide range, from the state minimum of $25,000 up to a multi-million-dollar umbrella. You may want to do a Google aerial view search of the defendant’s residence, especially in a case with serious injuries. See what Zillow says about the value of the property. If the defendant lives in a mansion, it’s likely they will have significant liability insurance limits. You want to make a guestimate as to the amount of liability insurance available. If the case value merits it, there are services out there such as Red Folder Research that can investigate potential insurance coverage limits for a fee.

While insurance adjustors will rarely tell you the amount of insurance available, I’ve been able to “flush” the limits with a friendly phone call in many instances.  In other instances, the adjustors will tell me this is a “big policy” or say something to the effect of “it’s not the biggest policy, but it’s not the smallest either.” It’s helpful to know this information so that you can know where the pressure points will be during negotiation.

Let’s talk about those pressure points.  If your client’s case is arguably more valuable than the available liability insurance, you have a good chance of getting the entire limits if you play your cards right.  This includes language in your demand that gives the carrier one (and only one) opportunity to settle within the limits.  If they don’t pay the limits and you obtain a verdict against their insured in excess of the limits, the carrier will likely pay the entire verdict to avoid a claim by their insured for negligent failure to settle.

Knowing the coverage amount is also beneficial to know while your client is getting medical treatment.  If you’re certain there’s only $25,000 to get, it may not make sense to wait until your client is done treating to resolve the case.  By waiting, that just increases the health insurance subrogation amount, which eats into your client’s net. If you know there is significant liability coverage, you know it’s wise to wait so that you can adequately present all damages.

LIABILITY COVERAGE ISSUES IN ALABAMA CAR ACCIDENT CASES

You could run into a few issues with the at-fault driver’s liability carrier about coverage.  For example, if the at-fault driver was not listed on the policy as an insured driver, the insurance carrier may deny coverage. Most carriers extend coverage to permissive users of the insured vehicle, but I’ve seen some pushback on that by a few carriers lately, especially when teenage drivers are involved.  In some cases, the driver will actually be an “excluded driver” under the policy.  Excluded driver endorsements are generally enforceable.

Another coverage issue can arise when the at-fault driver did something intentionally.  I’ve had to settle a case for less than full value where a lady was intentionally run over by an ex-boyfriend.  State Farm argued it shouldn’t have to pay anything at all under their “intentional acts exclusion.”  Every car insurance policy I’ve ever seen has this exclusion. Their argument had merit since the entire incident was on video displaying convincing evidence of his intent to harm her. I ended up resolving the case for much less than the value of the injuries. It was a better option than being on the losing end of a declaratory judgment action two years later with your client left holding the bag.

One last liability coverage issue to mention is non-cooperation. In Alabama, an insurance company can deny or fail to adjust a claim due to the insured’s non-cooperation, but only if the lack of cooperation is proven to be material, substantial, and prejudicial to the insurer. Ex parte Clark, 728 So. 135 (Ala. 1998). The insurer bears the burden of proving this, and it’s generally a question of fact. It is difficult for a liability insurer to escape coverage on this basis, but it’s something to be aware of if the situation arises.

UNINSURED/UNDERINSURED MOTORIST COVERAGE ISSUES

You will also want to go about determining the amount of UM/UIM coverage available. Obviously, this is important if the at-fault driver doesn’t have valid car insurance.  Reasons that a tortfeasor has no liability insurance could be that the driver was operating a vehicle without permission (“non-permissive user”), the driver was an excluded driver on a policy, or the policy lapsed due to non-payment of premiums.

In many instances, it will appear from the accident report that the driver did have car insurance, but, as it turns out, they fooled the law enforcement officer. As previously discussed, a recent study showed that 19.5% of drivers on the road in Alabama don’t have valid car insurance. Another estimated 30-40% of drivers carry the minimum limits of $25,000.

In cases where there is no valid liability car insurance or where your client has serious injuries, you will want to determine the UM/UIM limits. If your client doesn’t know and can’t find their insurance policy declarations page (“dec page”), you can request it directly from your client’s car insurance company.

Ala. Code § 32-7-23 is the statute that makes uninsured/underinsured motorist coverage mandatory in Alabama and defines the scope of coverage. The statute essentially requires insurance carriers to offer UM/UIM coverage to insureds.

In some instances, there will be a dispute as to whether a UM/UIM policy covers the incident in question. There are several important principles to be aware of when addressing a coverage question. First, you should know that policy provisions or exclusions more restrictive than allowed by the statute are void and unenforceable. An insurer may not deny benefits by inserting provisions restricting an insured’s right of recovery. For example, corroborative evidence requirements are not permitted. Walker v. Guide One, 834 So. 2d 769 (Ala. 2002).

When there is a dispute as to whether the policy language covers the incident, the first question to address is whether the relevant policy language is “ambiguous.” Ambiguities in policy language must be resolved in an insured/plaintiff’s favor pursuant to Altiere v. BCBS of AL, 551 So. 2d 290 (Ala. 1989). Thus, if prevented with a coverage defense, it’s time to put on your reading glasses to examine the fine print.

An example of a policy ambiguity case is Nationwide v. Steward, 323 So. 3d 36 (Ala. 2020), where a dispute arose out of the phrase “on public roads.”  The phrase was found to be ambiguous in the context of the collision that occurred at an ATV park, which was a win for the plaintiff. On the other end of the spectrum is when the policy language is crystal clear. For example, Alfa v. Warren, 373 So. 3d 1080 (Ala. 2022), is an example of where the Court found policy language to be unambiguous and thus ruled in favor of the insurer.

An individual has uninsured/underinsured motorist coverage unless he or she rejects the coverage in writing. If there is no rejection waiver, then your client indeed does have UM/UIM. In other words, don’t trust your client’s car insurance company to tell you there is no UM/UIM.  If they do, then request signed rejection waivers.

In Alabama, you can “stack” coverages up to three vehicles. Ala. Code § 32-7-23(c) states that the recovery by an injured person under the uninsured provisions of any one contract of automobile insurance shall be limited to the primary coverage “plus such additional coverage as may be provided for additional vehicles, but not to exceed two additional coverages within such contract.” Therefore, an injured plaintiff can stack up to three coverages on a single policy.

Importantly, there is no limitation on the number of individual polices that can be stacked. Therefore, if an injured plaintiff has five separate policies with one car insured on each policy, the plaintiff could seek compensation from all five policies.  However, you can only stack coverage from policies under which an insured would be provided liability coverage. See State Farm v. Jackson, 462 So. 2d 346 (Ala. 1984).

In addition, it’s important to know that, in Alabama, your client can typically use any UM/UIM coverage of a resident relative and any UM coverage on the vehicle your client was occupying at the time of the accident, even if they didn’t own or insure that vehicle. For example, I had a case involving a woman who lost her leg.  The at-fault driver only had $100,000 in liability coverage and my client only had $25,000 in UM/UIM coverage on her personal vehicle.  Obviously $125k isn’t enough money for losing a leg.  Fortunately, she lived with her mother who had $300,000 in UM/UIM coverage with a different car insurance company.  In addition, my client was riding as a passenger in her sister’s vehicle at the time of the incident. Her sister carried another $25,000 in UM/UIM coverage.

If I hadn’t explored the coverage situation enough, we would have only gotten $125k for her case.  However, since we did explore the situation, we were able to get a total settlement of $450k. Not near enough for losing a leg, but a much better outcome nonetheless.

PRESENTING DAMAGES IN ALABAMA CAR ACCIDENT CASES

Many personal injury attorneys are guilty of just submitting their client’s medical records and medical bills as proof of damages.  If you’re doing that in every client’s case, you’re doing it wrong.  In this chapter, I will cover several ways that you can build and define your client’s damages.

To be clear, I’m not talking about inventing damages.  What I propose is that you examine every element of potential “damage” and think of creative ways to gather admissible evidence to ensure your client makes a full and fair financial recovery.

Medical-Legal Illustrations

Humans are visual creatures.  At the end of the day, a jury of humans will decide what your client’s case is worth.  Therefore, it only makes sense to have a visual depiction of your client’s injuries, surgeries, and scars.  Of course, you should ensure your client is taking photos and audio-free videos of their injuries and their recovery process. However, the medical-legal illustration is an incredible piece of admissible evidence.

In cases involving surgery, I strongly recommend hiring a medical-legal illustrator to create an exhibit that depicts the injury and the surgical procedure.  You can send this in a demand package. If the case gets into litigation, you can use it during the treating doctor’s video deposition.  The admissibility requirements of demonstrative exhibits are fairly lax: the illustration must fairly and accurately depict the injury/surgery and it must be “helpful” to a jury to understand the injury/surgery.  Every doctor I’ve deposed has agreed that the illustration was fairly accurate and would helpful to a laymen to understand the injury/surgery.

The Sworn Statement

Most lawyers assume that getting a treating doctor’s testimony can only be done once the case is litigated.  This assumption is false.  We frequently schedule what we call “sworn statements” of treating doctors.  It’s just like a deposition: you hire a court reporter, pay the doctor for his or her time, and you ask the doctor questions under oath.  Yet there’s one big difference: the insurance defense lawyer isn’t there!

A sworn statement is particularly helpful when there are murky causation issues.  Did your client’s wreck aggravate her underlying cervical degenerative disc disease and thus necessitate the cervical fusion surgery? Did your client’s high-impact wreck lead to her recurrent headaches? If you have questions about whether some injury or condition is related to the wreck, so will the adjustor who is evaluating your client’s claim.

Be on the nose of the dog: go get the doctor’s testimony.  Even if it doesn’t turn out well, you can at least show your client you tried and you can set their expectations for settlement value.  You will also know what the doctor will say in the deposition if the case must be litigated. A sworn statement is worth the time and money in most cases involving causation issues.

A sworn statement can also be beneficial in cases where the injury is certainly from the wreck.  Physician testimony regarding permanency and future medical treatment can boost the value of your client’s case.  For example, in a case involving a tibial plateau fracture, you will almost always want to take the sworn statement of the orthopedic surgeon.  Your client is at an increased risk of post-traumatic arthritis in the knee joint and may require future medical treatment. An insurance adjustor won’t take this into account because it won’t appear in the medical records. The adjustor will be forced to take it into account if a treating physician opines the injury is permanent and will require future treatment.

Sworn statements are inadmissible hearsay since the defendant did not have the right to cross-examine the doctor.  However, you have “locked in” the doctor’s opinions under oath.  If the case is litigated and you need to depose the doctor, remember to send the doctor a copy of his or her prior sworn testimony in advance of the deposition.  The odds are very high they will simply reiterate their prior testimony in the deposition.

Life Care Plans

If your client has a severe injury and you believe there is significant insurance available, it makes sense to get a “life care plan.” Retain a certified life care planning nurse to interview your client and review all of the medical records.  A life care planning nurse can then project reasonably anticipated future medical treatment, including the cost of that treatment.  You now have admissible evidence regarding the costs of future medical treatment. Even if the only future treatment is medications, you would be surprised to see how much one medication costs over the course of your client’s life expectancy.

Impairment Ratings

Impairment ratings are an underutilized tool in Alabama car accident cases.  Impairment ratings are a medically accepted method of determining someone’s loss of function and capacity due to an injury.  They are performed by a physician or other medical professional and are based on the American Medical Association’s publication Guides to the Evaluation of Permanent Impairment. They are performed routinely in workers’ compensation cases, but never in a motor vehicle crash cases…unless you take the initiate to get one done.

An impairment rating is a powerful tool in front of a jury.  In addition, most insurance companies have claim evaluation software that often takes into account impairment ratings that exceed 5%.  If your client has a serious injury, seek out an impairment rating to fully define their damages of permanent injury and future pain.

Client Impact Statements

Another tool that can boost your client’s case value is their own words.  There are some things in life that cannot be recorded by a doctor, or put into an illustration, or calculated based on a publication. Severe injuries cause impacts in our clients’ everyday life and the insurance company needs to know this. For example, being unable to pick up your grandchild, or being unable to compete in your favorite sport, or struggling to wear high heels due to gnarly ankle fracture. If a car wreck has taken some joy away from the client, let the insurance company know this.

The format of this is the client impact statement.  The client can draft this and you can edit it as needed, with input and approval from the client of course.  I’ve had good luck using these to my advantage.

PRE-LITIGATION CLAIM HANDLING IN ALABAMA CAR ACCIDENT CASES

In a routine car accident case, after you have assessed the Big 4 (Liability, Damages, Insurance, Parties), collected all the evidence, and established a relationship with the client, you generally want to go into a holding pattern until the client reaches maximum medical improvement (“MMI”). The are five exceptions to this rule:

• You have confirmed there is limited coverage: it may make sense to settle early if the medical treatment is significant because you can “cut off” subrogation/liens from increasing. It may be in your client’s best interest to resolve the case early so that you don’t have to pay significant amounts of the settlement to their health insurer.
• Your client may die in the near future (previously discussed, file suit immediately)
• The statute of limitations is quickly approaching
• The liability carrier is notoriously difficult (as of 2025 in Alabama, that’s State Farm and Allstate). You may want to consider filing suit without negotiating.
• There is a commercial defendant. You need to file suit and do discovery in most of these cases in order to get full value.

Assuming none of the above apply, you intentionally go into your holding pattern until your client reaches MMI. This does not mean you completely ignore the file.  We have case management software and protocols that remind us to check in with the client every thirty days to get a treatment status update.  Some clients update you too often, some don’t ever update you.  I’ve had numerous cases where a client ended up needing surgery and never reached out to tell us.  Major treatment changes (such as surgery) alter the landscape of how you may want to handle the case, so it’s important to not lose touch with a client who is treating.

An important note: the term “MMI” does not always mean your client is completely done getting medical treatment.  Some of your clients will need lumbar spinal epidural injections for the rest of their life.  They may need pain medication forever. They may need hardware removal surgery down the road. They may need joint replacement revision surgery in 10-15 years.  Thus, MMI does not always mean the client is completely done getting treatment.  It does not always mean they are back to normal.  MMI can thus also just mean their “new normal” or that treatment has plateaued.

Once your client reaches MMI, you will then have your legal assistant obtain the client’s medical records and bills.  Make sure your client gives you a full list of healthcare providers, from the ambulance company, the MRI facility, to the physical therapy provider. In other words, not just the doctors they saw, but every healthcare provider. You want to obtain every record and bill from each provider.

I also generally recommend obtaining medical records from your client’s family doctor from prior to their accident to see if they have any relevant pre-existing medical issues that may impact the value of their claim (i.e. prior neck issues and client suffered a neck injury in your car accident case). Knowing your client’s medical history pre-litigation is imperative.  It’s a terrible feeling to find out through a defense attorney that your client’s medical history is quite different than what your client told you. Knowing the client’s prior medical history can give you (and the client) a better chance of determining a fair settlement value in the pre-litigation phase.

The paralegal then creates what we refer to as a “settlement brochure” or a “demand package.” This document summarizes the medical records, the medical bills, the subrogation/liens, the loss of income, and also includes any photos, the accident report, and any other evidence regarding liability or damages. If I haven’t already, I do a background check on the tortfeasor and see if there’s anything of relevance that may provide more ammunition for a demand letter (crimes involving dishonesty are always juicy.) It’s also a good time to run the same background check on your own client to see if there’s any damning prior convictions or pleas that may be admissible.

If the client is one of those unfortunate people who may need future medical treatment in the years to come, then we hire a life care planner to calculate reasonably necessary medical costs that will arise down the road. Even if the only future treatment needed is medications, you want to project those costs for your client’s average life span.  You can board some big numbers for future medical expense damages by doing this. You will also want to consider whether an impairment rating evaluation should be done or whether you want to include a medical-legal illustration. In short, a settlement brochure (or “demand package”) should include every piece of information possible to convince an insurance company to make a serious offer.

After the settlement brochure is completed, the attorney should review it and craft a demand letter. A demand letter should be at least two pages in most cases, unless the medical treatment was very limited.  You should hammer home the strengths of your case and mitigate any weaknesses if necessary. Then demand “$X or your insured’s policy limits, whichever is less.”

Determining what the “X” is a tough task.  However, you must demand higher than what you think the case is worth.  Different attorneys have different views on determining “X”. I hesitate to put my method in writing, but I’m always happy to talk with a fellow lawyer about it. The demand should be sent to both the tortfeasor’s carrier and your client’s car insurance company, assuming they have UM/UIM. (Some people wait for a policy limits offer from the tortfeasor’s carrier before sending everything to the UIM carrier. I prefer to do it all at once.)

The demand letter also must give the liability insurance adjustor a firm deadline to respond. I usually give them a deadline of thirty days, sometimes a tad bit shorter or longer. But there must be a deadline. Otherwise, you put no pressure on them, and they move your client’s case to the bottom of the stack. If you don’t give them a deadline, it may be several months before you get a response.

The deadline gives you leverage because if they don’t pay the policy limits by the deadline, they have potentially exposed their insured to personal liability.  In such an instance, you can potentially leverage a settlement amount for more than the policy limits or collect the entire verdict from the carrier.  There are numerous instances where carriers have been forced to pay excess verdicts to avoid exposure from an insured defendant bringing suit for negligent failure to settle.

A quick tip on the mechanics of sending out a demand: have protocols for your paralegal call or email the adjustor ten days after you send out the demand package to ensure the adjustor received it.  About half the time, they will claim they never received it, or it was received in a format that cannot be input into their system.  There’s no sense in waiting thirty days just to find out the carrier never received your beautiful demand package.

If the insurance carrier doesn’t respond by your deadline with an offer, send a letter or email withdrawing your offer to settle and advise the insurance company that you will proceed with filing a lawsuit against their insured and will seek to collect the judgment from their insured’s assets.  If that letter doesn’t get the ball rolling and doesn’t prompt an offer within ten days, then proceed with filing suit. You have to stand by what you say.

If the liability insurance adjustor offers the policy limits, you then move on to notify the UIM adjustor of this and your client.  Before you can accept the liability policy limits offer, you must get permission from the UIM adjustor to do so. See Lambert v. State Farm, 576 So. 2d 160 (Ala. 1991).  This permission must be in writing. The UIM carrier then has two options:

1. It can consent to the settlement with the tortfeasor and waive its subrogation rights.
2. In the alternative, the UIM carrier can “advance” the liability limits offer. (Sometimes called a “buyout”).

If the UIM adjustor gives permission to settle with the liability carrier, then you can advise the liability adjustor to send the check for the policy limits. Ensure any release your client signs is not a full and general release.  You need to ensure that the release is “pro tanto” and doesn’t release all claims against all potential parties.  If your client signs a general release, the UIM carrier will have an argument that it has been released from liability.

Since the tortfeasor has now been released, you have what we call a “direct action” against the UIM carrier.  You have the right to file a suit directly against the UIM carrier, which has built-in added value since a jury would be fully aware that the claim is against an insurance company.  You then attempt to negotiate with the UIM adjustor.  If you can get it settled, great.  If not, these are great cases to file and try in front of a jury.

If the UIM adjustor advances (or “buys out”) the liability offer, then that means the UIM adjustor must send you a check in the same amount of the liability offer. UIM adjustors choose buy-outs because it prevents you from filing a direct action.  If negotiations break down, you have to sue the at-fault driver and the jury will never know that the case is truly against an insurance company. Buy-outs are more likely in the following situation: plaintiff’s injuries are serious injuries, there is no aggravated liability on the part of the tortfeasor, and there is significant UM/UIM coverage.  In such a situation, the UIM carrier will want to hide behind the tortfeasor at trial.

At issue in many cases is whether the UIM insurer has made its decision to consent to the liability settlement or to advance within a “reasonable time period.”  Appellate courts have stated in that, absent compelling circumstances, “30 days would seem to be a reasonable period of time.”  Morgan v. Safeway, 13 So. 3d 381 (Ala. Civ. App. 2007). While no case has conclusively set 30 days as the required “reasonable” amount of time, Morgan and cases cited within it heavily imply that 30 days would probably not be considered unreasonable (absent compelling circumstances).

It’s important to note that you don’t have to get a liability policy limits offer to pursue a UIM claim.  For example, if the liability carrier’s offer is $90,000 but the liability policy limits are $100,000, you can still pursue the above procedures.  In the above scenario, if your client has $75,000 in UIM, you can feel confident that the UIM carrier will not buy out a $90,000 offer (it wouldn’t make sense for them to do so). Since they wouldn’t buy it out, you would have a direct action against the UIM carrier and can collect from them to the extent the verdict exceeds $100,000.

In any of these scenarios, to pursue a UIM claim, you will have to obtain a copy of the tortfeasor’s declarations page from the liability carrier as well as the written offer from the liability carrier.  You will then have to forward both of those documents to the UIM adjustor so they can document their file that there truly is UIM exposure.  Remember, you cannot accept an offer from the liability carrier without getting the written permission of the UIM carrier.  If you do so, you may waive your client’s right to make a UIM claim.

DETERMING A FAIR SETTLEMENT VALUE IN ALABAMA CAR ACCIDENT CASES

Determining the value of a personal injury case is difficult. This is a matter of educated guessing because there is no formula.  But here are some guideposts. First, you need to know the total amount of “special damages.” These are the damages that can be definitively calculated, the “hard numbers” as I like to call them.  In Alabama, the specials include out of pocket medical expenses, hospital liens, med pay liens, subrogation amounts, and loss of income. Insurance adjustors focus on these hard numbers a lot, probably too much. Nevertheless, the specials are critical, especially pre-litigation.

Which brings us to a small tangent about the concept of subrogation. Subrogation is the right of a third party (usually a health insurer) to recover money that it paid as a result of the negligence of a third-party tortfeasor.  For example, if a State Farm insured runs a red light and causes your client injuries, your client’s health insurance will pay for medical treatment associated with those injuries.  Health insurance will have the right of subrogation against any settlement or judgment obtained from the State Farm insured.

Long ago, Alabama abrogated the common law common source rule.  Therefore, if your client has health insurance, a jury will be aware of this. It would be nice to tell a jury your client has $80,000 in medical bills, but if BCBS satisfied those bills by paying $30,000, the jury will know this (absent a dismal performance by the insurance defense lawyer.)

Now, let’s get back to the topic of determining a fair settlement value. Even if the specials are low, is the resulting medical condition extremely painful or permanent? What is the projected cost of reasonably necessary future medical treatment?  You also need to assess liability and other factors that may impact a jury’s decision.  Is liability clear, contested, or aggravated? Are punitive damages in play? Is contributory negligence a legitimate defense?  Is the defendant a local person who seems to be an upstanding citizen or is the person a career criminal from out of state? What is the venue’s history of verdicts for similar cases? Is the defendant a corporate entity, a car insurance company, or a human? Is your client credible and likeable?

All of these things go into the soup of determining a fair settlement value. The only way to determine a fair settlement value is by guessing what a typical jury in your venue would award. After all, if a settlement can’t be reached, a jury will eventually tell you the value of your client’s case.

SUBROGATION/LIEN REDUCTIONS

Assuming you reach a settlement, your work is not done yet if you are a lawyer who really wants what’s in the best interest of the client. You must ensure your client receives the most money possible out of the settlement.  Which brings us to subrogation, liens, and outstanding medical bills. These are the things that eat into your client’s net settlement funds.

The first thing to do is to verify that the subrogation/lien amounts are correct.  If you haven’t already, request an itemization of charges from the health insurer.  Review all of the charges listed to ensure the treatment provided was related to the collision.  In many instances, you will find that some of the charges are for treatment wholly unrelated to the collision.  In such a situation, send the health insurer a letter explaining why the charges should be removed from the subrogation total.

Assuming the subrogation amount is now correct, you will want to seek subrogation/lien reductions. In most instances, you will be able to negotiate with the health insurer and get them to reduce their subrogation interest post-settlement pursuant to the Common-Fund Doctrine and/or the Made Whole Doctrine. These equitable doctrines usually give you the ability to negotiate the subrogation amount post-settlement to ensure your client receives more of the settlement funds.

Common-Fund Doctrine

The Common-Fund Doctrine applies when an attorney obtains a sum of money to which other entities claim a portion of the money, i.e. a personal injury settlement. “The common-fund doctrine in insurance-subrogation cases is based on the equitable notion that, because an insurer is entitled to share, to the extent of its subrogation interest, in any recovery its insured achieves against a tortfeasor, the insurer should bear a proportionate share of the burden of achieving that recovery—including a pro rata share of the insured’s attorney fee.” Ex parte State Farm, 118 So. 3d 699 (Ala. 2012).

In other words, you will usually be able to get the health insurer to reduce its subrogation interest by the percentage of your attorneys’ fee due to the Common-Fund Doctrine. For example, if you are handling the case on a 33.3% contingency fee and BCBS has subrogation rights of $18k, you should be able to get them to accept $12k.

Made Whole Doctrine

The Made Whole Doctrine is another equitable doctrine that may allow you to obtain a further reduction in subrogation amounts. The idea behind the doctrine is equity or fairness. For example, if your client was paralyzed in an accident and there’s only $25k in insurance coverage, you would have a strong argument under the Made Whole Doctrine that the health insurer’s subrogation rights should be extinguished because your client has not been “made whole” by the settlement.

ERISA Plans Can Preempt Equitable Subrogation Doctrines

If your client’s health insurance plan is one set up pursuant to the Employee Retirement Income Security Act of 1974 (“ERISA”), the health insurer may not be required to reduce their subrogation interest. ERISA-governed health insurance plans, particularly self-funded plans, have the right to nullify state law equitable doctrines such as the Common Fund Doctrine and the Made Whole Doctrine.

If the health insurer asserts that it is an ERISA plan, ask for the policy language.  If they are indeed an ERISA plan and expressly disclaim equitable doctrines (like the Made Whole Doctrine and the Common Fund Doctrine), then they may not be required to reduce their subrogation interest. Zurich v. O’Hara, 604 F. 3d 1232 (11^th Cir. 2010). BCBS Anthem and BCBS of Illinois (Boeing’s health insurer) are two health insurers we often deal with that typically assert their ERISA-based rights to abrogate/override equitable subrogation doctrines.

Medicare Subrogation

Medicare subrogation is logistically more complicated, but it is something your paralegal should be trained to handle. The Center for Medicare and Medicaid Services (CMS) has a web portal where you can receive updates about subrogation amounts.  CMS’s subrogation notification comes in the form of a “conditional payments letter” (CPL).  This is an itemization of their subrogation interest.

Once a settlement is reached, you then request a “final demand” from Medicare and their subrogation amount will be reduced according to a formula, which is usually in the range of 20-40%. Medicare has always accepted a reduction in every one of my cases, but the reduction percentage is tough to predict without taking a course in the CMS reduction formula. It’s important to know that Medicare’s subrogation must be paid within sixty days of the date of the final demand.  If it is not, then interest will accrue.

Medicaid Subrogation

Medicaid will also typically accept a reduction of their subrogation interest.  You will have to deal with the fine folks at HMS.  The Alabama Medicaid Agency has contracted with Health Management Systems (“HMS”) to handle Medicaid’s subrogation rights.  It can be painfully slow in getting responses from HMS, both for subrogation amount itemizations, disputes of charges, and responses to requests for reduction. However, HMS typically reduces amounts, just be prepared for it to take a while.  If you figure out a method to make it happen quicker, please reach out to me and I’ll buy you a cold one.

VA & Tricare Subrogation

The Federal Medical Care Recovery Act (“FMCRA”) governs the rights of both the VA and Tricare in subrogation claims.  This law and subsequent regulations enabled by the law prohibit application of the Common-Fund Doctrine and Alabama’s Made Whole Doctrine. The VA & Tricare will usually only reduce its subrogation rights when the subrogation compared with the total settlement amount causes an “undue hardship” to the client.  While the VA and Tricare subrogation procedures differ slightly, both are animals of the same species under the FMCRA.  Do not expect much of a reduction if you get a good result for the client. On the other hand, if there is a limited recovery for the client, the Feds will work with you.

Side tip: If I made Medicaid subrogation seem like a hassle, then buckle up.  The Veterans’ Affairs (“VA”) subrogation process is a debacle like none other.  I’ve had one case where I didn’t get a response out of the VA for six months, despite six letters, ten emails, and four voicemails.

Hospital Liens

In Alabama, we have the hospital lien statute. Ala. Code Section 35-11-371 . If your client receives treatment at a hospital after an Alabama car accident, the hospital is permitted to file a lien on your client’s personal injury clam for the full value of the hospital bill (which is usually thousands of dollars).  However, with the most recent amendment of the hospital lien statute in 2021, it is now clear that a hospital cannot file a lien without first submitting the hospital bill to a patient’s health insurance. At the time of the writing of this book (2025), legislation has been introduced that may amend this statute to cap liens at the amount of the Medicare reimbursement rate “plus an additional percentage.”

If your client doesn’t have health insurance, hospital liens are likewise negotiable.  After all the hospital doesn’t get paid unless you are able to resolve your client’s case. You hold the leverage.

Hospitals frequently file liens without submitting the hospital bill for payment to a client’s health insurer, contrary to the plain language of Ala. Code § 35-11-371. Even if the hospital files a lien in a case where the client has health insurance, hospital liens are frequently “released” after one year for timely filing on health insurance.  Most health insurance companies require a hospital to file their bill for health insurance within one year of the date of treatment.  Therefore, erroneously filed hospital liens will be released about 11 months after the date of treatment. If your client has no health insurance, the lien will likely not be released.  If it is released in such a case, the lien amount will likely be put into the collections process by the hospital’s billing office.

Knowing this can be helpful if trying to settle a claim around the 1-year mark post-wreck. The insurance adjustor may think there is a hospital lien, but it has actually been released and billed to health insurance. You have no legal obligation to tell the insurance adjustor of this fact unless they expressly inquire (they rarely do) because it’s a matter of public record. If the hospital lien amount is then billed to health insurance, that will cause the health insurer’s right of subrogation to increase, but the increased subrogation amount will be much lower than the previous lien amount.  This will “net” your client a better result.

Med Pay Subrogation

In addition to health insurance, your client’s car insurance carrier may have a right of subrogation if it paid for medical treatment under your client’s “medical payments” coverage.  Many people carry med pay coverage that will pay for medical bills up to the limit of the med pay policy amount.  If you get a settlement with the liability carrier, your client’s car insurance will want to be reimbursed.  The amount is negotiable, and they will usually reduce at least by the percentage of your attorneys’ fee. However, med pay policy provisions can override equitable principles. See Wolfe v. Alfa Mutual Ins. Co., 880 So. 2d 1163 (Ala. 2003).

In many instances, you can get the med pay adjustor to waive reimbursement, especially if there’s at least a small risk of UIM exposure. You can often get the carrier to waive the med pay lien in exchange for disclaiming a UIM claim.  It’s always worth a shot.

Workers’ Compensation Right of Reimbursement

If your client was on the job when the car accident occurred, then workers’ compensation will pay for their medical treatment.  In other words, your client has two claims: one for injury against the at-fault driver and one for workers’ compensation.  However, the workers’ compensation insurance carrier will have a statutory right of reimbursement for the amounts it paid due to the accident.

The reimbursement amount is negotiable and is controlled by the Fitch formula, which is unnecessarily confusing. I’m not the guy to teach this section of the book, but you can read Fitch v. Insurance Company of North America, 408 So. 2d 1017 (Ala. Civ. App. 1981). Best of luck making sense of that case.  I’ve litigated with a workers’ comp carrier over this issue who had intervened in a car crash case, but we ended up resolving the dispute prior to a final ruling from the judge.

Outstanding Medical Bills

Outstanding medical bills are also usually negotiable.  Your client may not have had health insurance or maybe there was a large deductible that they couldn’t afford to pay out of pocket. If your client wants you to satisfy that debt out of the settlement, which they should, most healthcare providers will agree to a reduced amount.  Providers prefer getting something as opposed to the possibility of nothing. However, some clients would prefer to just not pay any bills out of the settlement.

I allow the client to make this decision but document their decision in writing to prevent any dispute with the client post-disbursement. This decision is usually stated in writing on the final settlement sheet and requires a client signature. You want proof that the client instructed you not to pay any outstanding balances in the event they blame you down the road for their damaged credit score.

DISBURSING A CAR ACCIDENT SETTLEMENT

If a case is settled or you think it’s about to settle, have your paralegal create what we call a “settlement sheet.” I’m sure other lawyers have different names for it, but this is a document showing the mathematical breakdown of the settlement.  It should show the gross settlement amount, the deduction of attorney fees and expenses, as well as the deductions for payments of subrogation, liens, and outstanding medical bills. After all the deductions, the math should result in the “net” amount that goes to the client.

Once you confirm settlement, the car insurance company or companies will send a release/settlement agreement.  Review it to ensure it is correct.  If there are other parties or potential defendants, ensure that the release is not a general release that, if signed, may prevent you from bringing a claim against another potential defendant (assuming that’s something you’re interested in). Most insurance companies now require a signed release before issuing payment. If there are pending claims against other defendants, insist that the release be edited to be “pro tanto” and to add language that other claims against other parties are preserved.

Some carriers insist on paying subrogation amounts in a separate check.  I’m certain this policy was adopted after the carrier got burned due to the personal injury lawyer not paying the subrogation, which prompted the health insurer to come after the car insurance carrier.  If this is the case, ensure that the carrier only issues the subrogation check after you have attempted to obtain a subrogation reduction.

Once the release is signed, email it to the adjustor, along with your law firm’s W9 and advise the adjustor of payment instructions.  Settlement checks should always be jointly payable to the law firm and to the client. Once the settlement check arrives, have your bookkeeper write all of the checks from your trust account: one to your firm for fees/expenses, one to the client, and other checks for subrogation, liens, and outstanding medical bills.

Meet with your client to have them sign the settlement sheet and endorse the settlement checks from the carriers. Give your client his check, thank him, and ask him to leave a positive Google review. Then provide the signed settlement check and the signed settlement sheet to the paralegal on the file.  The paralegal will send out checks for subrogation, liens, and medical bills. The paralegal will provide the fee/expenses check to the bookkeeper for depositing.

Once everything is complete on the file, it can be marked as closed.  Voila!

WRONGFUL DEATH CLAIMS

Wrongful Death claims in Alabama have several nuances, many of which may seem illogical.  Therefore, this chapter, we will cover all of these nuances so that you are not surprised during the process of handling a death case.

Standing to Bring Wrongful Death Case

First and foremost is understanding who has standing to be the plaintiff in a wrongful death case in Alabama. Unlike the law of most states, a deceased’s family cannot bring a wrongful death action in Alabama simply by virtue of the fact that they are legal heirs.   The personal representative of the deceased’s estate has the sole and exclusive right to prosecute a wrongful death case. Ala. Code Section 6-5-410

If the deceased had a will, the will would have already chosen the personal representative (also known as an executor or executrix.) Assuming the deceased never executed a will, then the probate judge for the county where the deceased resided can designate a personal representative.  Priority to be the representative is in this order under Ala. Code § 43-2-42:

1. Spouse
2. Next of kin
3. The largest creditor of the estate
4. Another individual is chosen by the probate judge

While an estate must be opened for every wrongful death claim where the deceased was an adult, there is an exception for deaths of minors. Under Ala. Code § 6-5-391, if the deceased is a child, then the mother or father can file a lawsuit without having to be appointed personal representative of an estate. If the child’s parents are not married, then only the parent with “legal custody” has the right to bring the case. Ala. Code § 6-5-390.  The parent must file the lawsuit within six months of the child’s death. If the wrongful death lawsuit has not been filed within six months, then only the personal representative of the child’s estate can bring the lawsuit.

Wrongful Death Damages

Damages in wrongful death cases are somewhat unique in Alabama.  There are no compensatory damages in Alabama death cases.  There is no compensation for pain, or for pre-death medical costs, or for loss of companionship.  There is no compensation for the loss of expected income the deceased would have earned.  The only measure of damages in Alabama wrongful death claims is punitive damages. Cherokee Elec. Coop. v. Cochran, 706 So. 2d 1188, 1193 (Ala. 1997).

The purpose of punitive damages is to “preserve the sanctity of human life and to deter the defendant and others from similar future conduct.” (Alabama Pattern Jury Instruction – Damages for Wrongful Death). When you are handling a wrongful death case, always keep this in mind.  Your strategy should be to develop testimony and evidence that focuses on this jury charge.

It’s important to know that wrongful death punitive damages are not subject to the heightened burden of proof requirement for obtaining punitive damages in non-death cases. Instead of subjecting all punitive damages to the heightened evidentiary standard of §6-11-27(a), the Legislature specifically exempted punitive damages sought in death cases from the operation of the heightened evidentiary standard. Ala. Code § 6–11–29; Cain v. Mortgage Realty Co., 723 So. 2d 631 (Ala. 1998).

Distribution of Funds

The monies obtained in a wrongful death case must be distributed according to the rules of intestacy, regardless of whether the deceased had a will.  Ala. Code § 6-5-410. This can be a thorny issue in death cases.  I’ve had numerous cases where one (or more) of the receiving heirs was allegedly unworthy of receiving his portion of the settlement money.  However, Alabama law is crystal clear: the personal representative must follow the rules of intestacy in distributing the funds. The rules of intestate succession are found in Ala. Code §43-8-41, et seq.

I generally prefer to issue the distribution checks in the correct amounts to the correct heirs. It just seems safer to me to handle it myself, even though the ultimately responsibility to make the correct distribution is technically the responsibility of the personal representative. As long as you have advised the personal representative of the estate of their obligation, it’s this author’s opinion you have satisfied your responsibility as the lawyer handling the wrongful death case.

One last note on distributions: since death cases only involve punitive damages, there can be no subrogation/liens in wrongful death cases.  Because compensatory damages of medical costs cannot be collected, it naturally means that a claim for subrogation cannot attach to a wrongful death settlement.  In addition, Ala. Code § 6-5-410 states that the settlement money is not subject to the debts of the estate, which is an added benefit because the settlement funds do not have to pass through the estate.

COMMERCIAL VEHICLE ACCIDENTS IN ALABAMA

When the at-fault driver was driving a commercial vehicle, the entire ball game changes, especially if the commercial vehicle was owned by an entity engaged in interstate commerce. For example, when a trucking accident occurs, the gameplan completely changes.

First, it is important to know that commercial vehicle insurance carriers frequently have what they refer to as “Go Teams.” Go Teams are pre-set groups of insurance adjustors, accident reconstruction experts, lawyers, and investigators whose job is to get to the scene, collect evidence, and manipulate or control the narrative of how the collision occurred.  If you are contacted by the victim of an 18-wheeler accident, you are almost certainly already behind the eight-ball.

Your job must be to collect as much evidence as possible and demand preservation of evidence that you cannot collect pre-litigation.  This includes hiring an expert witness as soon as possible to do a scene survey, line of sight analysis, crush impact analysis, a data download from both vehicles, and/or a complete accident reconstruction. Not all commercial vehicle accidents merit this, but you should consider investing the money into this process if your client’s injuries are moderate to severe.

If the defendant is an interstate carrier, then the Federal Motor Carrier Safety Regulations (FMCSRs) are a tool you must implement to secure the best result for your client. The FMCSRs are a set of rules established by the Federal Motor Carrier Safety Administration (FMCSA) to ensure the safety of commercial motor vehicles. These regulations, found in Title 49 of the Code of Federal Regulations, apply to commercial vehicles operating in interstate commerce, and some intrastate operations. For example, here are some common FMCSRs that can come into play during litigation of a commercial motor vehicle case:

• 49 CFR § 395.8(k) requires interstate carriers to retain logbooks of activities of its drivers, including driving hours, off hours, and rest time.
• 49 CFR § 391.11 requires interstate carriers to maintain a driver qualification file to ensure its drivers are appropriately qualified under the FMCSRs.
• 49 CFR § 391.33 requires interstate carriers to maintain copies of drivers’ road tests showing they are capable of operating heavy trucks.
• 49 CFR § 391.41 requires carriers to maintain a medical examiner’s report showing the driver is medically qualified to operate a heavy truck.
• 49 CFR § 391.27 requires carriers to maintain records of violations by drivers.
• 49 CFR §§ 369.11 and 369.13 requires carriers’ drivers to inspect and maintain records about the safety of the commercial vehicle, such as brakes, tires, and headlights.
• 49 CFR § 382.303 requires carriers to submit the driver to a drug screening and maintain such drug tests.

There are numerous other FMCSRs that could come into play in your case, with the above-cited regulations being a list of the most common ones that have been important in cases I’ve had in my career.

You will want to send a very specific preservation letter to the commercial vehicle company demanding that it preserve all documents required to be kept under the FMCSRs.  You will also want to demand preservation and inspection of the commercial vehicle and its electrical components (including the ECM and any other on-board recording devices).

Since the defendant’s Go Team has already captured the evidence that is bad for your client, you must play catchup to level the playing field.  And you must do it as quickly as possible before evidence goes “missing.” If you don’t, the defense team will be able to control the narrative of your case and will almost always present a defense based on your client’s contributory negligence.  If you are asleep at the wheel in the first few days or weeks after being hired by the client, you have lost valuable ground.

Your primary goal in a commercial vehicle case is to uncover evidence that the company itself did something (or failed to do something) that contributed to causing the collision.  In other words, you want to be able to argue the company itself is to blame, not just their driver.  If you uncover such evidence, you have at least doubled the value of your case.  Sure, the company is still on the hook for the driver’s conduct under the doctrine of respondeat superior, but uncovering evidence of direct negligence by the company is likely lead to a stronger outcome at trial and thus increase your settlement leverage.

One other quick note on commercial vehicle accident cases: you should almost always file suit.  You will only be able to obtain valuable evidence during the litigation process because much of it is in the possession of the defendant. In addition, you should always take the defendant carrier’s deposition via Rule 30(b)(6), which requires a defendant-entity to put forth a representative to testify about the topics of your choosing.  These depositions can be critical in boosting the value of your client’s case.

If you want to learn more about litigating commercial vehicle accident cases, there are numerous books and CLEs on this topic. This book is introductory level and only glosses over this complicated area of law. Therefore, if you get a commercial vehicle accident case, it’s time to learn quickly or associate with a law firm that has experience in these cases.  Don’t fear entering into a fee-sharing agreement with an experienced law firm who can multiply the potential settlement amount through extensive discovery, pleading drafting, expert witness retention, and deposition-taking.

SETTLEMENTS FOR MINORS IN ALABAMA CAR ACCIDENT CASES

In Alabama, and in most states, a personal injury settlement for a child must be approved by a judge. A person is a minor if they are under the age of 19.  If you have reached a tentative settlement of a minor’s claim, then you must begin the court-approval process. This is called a pro ami hearing, which is Latin for “for the friend.”

To begin the process, a lawsuit must be filed.  Typically, the insurance defense lawyer will draft this for your review.  The insurance carrier should also reimburse you for the filing fee. You file the complaint and waive service on the actual defendant, but instead just email a copy to the defense attorney.  The defense attorney will file a motion to set a pro ami hearing and a motion to appoint a guardian ad litem.

The procedures at a pro ami hearing can vary drastically depending on the assigned judge.  However, there are numerous commonalities, regardless of the judge.  You, the custodial parent, and the injured child must appear in court. The judge’s role in a pro ami hearing is to determine whether the proposed settlement is in the best interest of the child. The personal injury claim is only truly settled if the judge approves the settlement as being in the best interest of the child.

The judge will likely want to hear the details of how the incident occurred, the injuries and medical treatment, the details of the proposed settlement, what type of legal work the attorney did to justify his or her fee, and how the settlement funds will be maintained and distributed. Some judges require that the child and the parent provide testimony upon your direct examination.  Some judges just ask questions directly of the parent and/or the child.  Regardless of the mechanics of the hearing, you should be prepared and know all of the details of the case and the proposed settlement.

Judges frequently appoint a guardian ad litem to review the evidence, meet with the child, and meet with the parents.  The guardian ad litem is an attorney whose sole job is to protect the interests of the child. The guardian ad litem will then give his or her recommendation to the judge as to whether the settlement is in the best interest of the child. Prior to the hearing, you should coordinate with the guardian ad litem in regard to providing any documentation they request and providing the contact information for the child’s parents.

One of your jobs is ensuring the net settlement funds for the minor are protected. Children cannot receive money directly.  Therefore, there are a few options available to you and the parents, but one or more of these options must be approved at the pro ami hearing.

• Court Account– The settlement money can be held in an interest-bearing account by the court clerk’s office until the child reaches the age of majority.  When the child turns 19, he or she can pick up the check from the clerk’s office.
• Structured Annuity– The settlement money can be placed into a structured annuity.  There are several benefits of this, including a higher interest rate of growth and it gives the parents the ability to control when the child receives the money.  Many parents decide on an annuity that delays payment to the child until they are at a more mature age such as 25. In addition, the interest growth on the seed money is non-taxable.
• Conservatorship– Another option is a conservatorship.  Some or all of the settlement money can be placed into a conservatorship.  A conservator is a court-appointed person who has the legal authority to control the money of someone who is incapable of doing so, such as a child. This is an expensive option with administrative burdens and therefore should only be used in limited situations where the child has ongoing medical needs and the settlement is relatively large.

In Alabama, parents can request the judge to approve up to $5,000 to be made payable to the parent(s) under the Facility of Payment Act, Ala. Code § 26-2A-6.  The money must be used for the benefit of the child.  The judge is not required to give $5,000 to the parents, it is completely up to the judge’s discretion. Under no circumstances may a parent receive more than $5,000 of the settlement amount.  It’s always beneficial to tell a parent this information at the initial consultation to set their expectations.

ALABAMA CAR ACCIDENT LITIGATION

You weren’t able to settle the case and it appears as if a lawsuit is necessary.  You must draft the Complaint, naming the tortfeasor and UIM carrier as defendants (unless it’s a direct action, then just name the UM/UIM carrier as the defendant). In addition, you should draft interrogatories and request for production to each defendant.  These should be filed and served simultaneously with the Complaint. You can also consider drafting and serving requests for admission and notices of depositions of the defendants. If you would like sample copies of the templates we use for car accident complaints, interrogatories, requests for production, requests for admission, and deposition notices, just reach out to me. Happy to share.

Getting service on defendants can sometimes become an issue. If certified mail doesn’t work (the default method), then file an alias summons and attempt to have the Sheriff serve the Complaint.  If that fails, then you will have to hire a private process server to serve the complaint.  Keep in mind the rules require you to obtain service within 120 days after filing the lawsuit. Most judges will extend the deadline upon you requesting more time via motion, but keep this time frame in mind, especially if the statute of limitations has passed.

The defense attorney will file an answer, but frequently will not respond to your discovery requests.  At the 50-day mark after service of the complaint/discovery, send a letter in writing to the defense attorney requesting discovery responses within fourteen days and reminding them that a motion to compel will be filed if they do not comply pursuant to Alabama Rule of Civil Procedure 37. If there are no responses within fourteen days, file a motion to compel attaching the discovery as Exhibit A and your 14-day letter as Exhibit B. Judges almost always grant these motions without a hearing. The goal is to move litigation along as quick as feasible. Your client and your firm will not get paid as the litigation sits.

For that reason, it’s also important to have your client answer interrogatories and requests for production as soon as feasible.  We generally send the interrogatories/request for production to our client via mail or email with an explanatory letter. We then schedule a time for them to meet with an attorney to finalize their answers. Remember to get them to sign the oath page at this meeting.  If there are any documents requested that they have not been able to locate, that’s not the end of the world. File your responses and you can supplement the documents at a later time. Set party depositions (depositions of the plaintiff and the defendant) as soon as written discovery is completed.

PREPARING THE CLIENT FOR DEPOSITION

 

You should prepare your client for their deposition at least 48 hours in advance of the deposition date. Preferably sooner.  You should never prepare the client for a deposition on the same day of the deposition.  The reasons for this are numerous and should be obvious. For example, in the event you learn some new information in the preparation meeting that needs addressing, it gives you time to come up with a gameplan.

At the client deposition prep meeting, we provide our clients with a document that lists everything they need to know about their deposition and gives tips on what to do and what not to do. I go over it verbally first and then give them a copy of the document to take home and review. I’ll put that document at the end of this chapter. In addition, your client must be familiar with their interrogatory answers and any critical documents they created or that will likely be discussed during the deposition.

Entire books have been written about how to take and defend depositions.  This isn’t one of those books.  However, I do want to drop a note about how important it is to do everything possible to maintain your client’s credibility.  That’s why thorough preparation of your client for his deposition is critical.  Every insurance defense attorney will be trying to damage your client’s credibility. That’s always their #1 goal. Therefore, I always operate under the assumption that the client is going to attempt to hide what they perceive to be damaging information.  I then encourage them not to hide that “damaging” information.  To be able to do this, you have to do some digging.  Pretend you are the insurance defense lawyer for a bit.

The first thing a defense lawyer will study is your client’s medical records, from both before and after the collision. The most important tip I have for your client’s deposition preparation is this: ensure you have all the medical records the defense attorney has received pursuant to subpoenas. Ensure you have these records before you prep your client.  Most defense lawyers will have issued subpoenas to your client’s doctors’ offices, not only for treatment provided as a result of the wreck, but to doctors’ offices where the client received medical treatment prior to the wreck.

At least one week prior to your client’s deposition, request that the defense attorney supplement their responses to requests for production.  (One of your requests for production should always be: “all documents obtained to any subpoena issued in this case.”) If the defense attorney refuses to produce the records prior to the deposition, cancel the deposition.  Alabama Rule of Civil Procedure 26(e)(3) requires supplementation of discovery responses, but only if you request supplementation.  Hold the defense attorney to this duty. If you do not, you could be blindsided with damaging documentation during your client’s deposition.

Other than medical investigation of your client, you need to keep thinking like a defense lawyer. You should ensure you know your client’s criminal background prior to deposition. You should ensure you know your client’s driving record prior to deposition (it’s only $5 on the ALEA website.) Ensure your client hasn’t said something stupid on social media that is relevant to the case.

In short, you have to do your homework so that your client knows what the defense lawyer may already know.  In car accident cases, the plaintiff’s performance is much more important than the defendant’s performance.  If your client can survive with his credibility unscathed, you are on a path to success.

Your client’s deposition preparation is the most important task of any personal injury case you litigate. 

After party depositions, many cases will resolve. In some instances, the judge will order a mediation or the defense lawyer will suggest mediation. Mediation is not necessary to reaching a settlement – in many cases you can contact the defense attorney after party depositions and see if the carrier is willing to talk resolution.  Defense attorneys usually create a report after party depositions, send the report to the insurance carrier, and ask for more money to offer. If you cannot resolve the case at this juncture, you need to begin preparing the case for trial.  But at this juncture, it makes sense to talk about mediation.

MEDIATION IN A CAR ACCIDENT CASE

According to the latest statistics, 96% of car accident personal injury cases settle at some point, whether that’s pre-litigation or during litigation. When a case has significant value (usually in the six-figure range or more), mediation can be a helpful exercise in trying to resolve the case and cut out the gamble of a trial. Mediation can be beneficial for numerous reasons:

• It forces the defense attorney to send a complete report to the insurance carrier
• It forces the defense attorney to request authority to settle the case
• It gives your client a chance to at least see what the carrier is truly willing to offer
• It gives the parties an opportunity to share, through a neutral, their viewpoints on the case

In the worst-case scenario at mediation, you leave without a settlement, but with insights as to how the other side views the case.

I’ve discovered during my career that many personal injury lawyers do little preparation for mediation.  However, to get the best outcome at mediation, there’s several things you can do in advance of the mediation and during the mediation. Here’s a quick list of tips to prepare for mediation:

1. Write a mediation position statement to send to the mediator at least two days in advance of the mediation. Hammer home the strengths of your case. Acknowledge and ameliorate the weaknesses. Provide evidentiary snippets that bolster your case: photos, or deposition testimony, or that expensive life care plan. Showing the mediator that you have a strong case and going the distance to take the time to outline the case to the mediator will give you an advantage going into mediation.
2. Prepare the client prior to mediation. Usually the day before mediation, we meet with our client to fully explain the mediation process. We ensure the client knows that the process is confidential and voluntary and that no one can force them to do anything. We also remind them that this may be the sole opportunity where they have control over the outcome of their case. Also prepare the client that the mediator is “reading them” and that any body language or statements in front of the mediator need to signal strength and resolve to go to trial if needed.
3. Ensure the defense attorney has all information needed well in advance of the mediation. Typically, defense attorneys are given an amount of money to offer at mediation and the insurance representative does not attend in person. The insurance representative advises the defense attorney to call them during the mediation if additional authority needs to be requested. You would like for that initially approved amount of money to be as good as possible, so ensure the defense attorney has the ammunition he or she needs to get good authority, at least a few weeks prior to mediation.

Before mediation, you need to have a “goal” settlement value and a “line in the sand” settlement value. Prior to mediation, roundtable your case with other attorneys so that you have a good feel for what a jury would do with the case. In mediation, work towards your goal value, keeping in mind that the mid-points between the various offers are always signaling ballpark settlement ranges. Every counteroffer needs to be accompanied with a message to the mediator justifying the counter. Hopefully you can get your “goal” number.  Be prepared to walk if you don’t get your “line in the sand” number, unless you learn adverse information during the course of the mediation. Sometimes things occur in mediation where you must adjust your expectations.

If mediation doesn’t get the case resolved, it’s time to prepare for trial. The first step is getting the medical testimony you need if you haven’t already.

MEDICAL DEPOSITIONS

In most instances, you will need at least one medical expert witness to testify in order to establish causation of harm and to delineate damages. There are only three situations where it is not necessary to have medical testimony:

1. if the cause of the alleged injury is obvious, g., Breaux v. Thurston, 888 So. 2d 1208, 1217 (Ala. 2003);
2. the injury occurred immediately following the negligent act, g. Wade v. Plantation Pipe Line Co., 2007 WL 1668815 (M.D. Ala. 2007); or
3. the injury is a condition we can all understand based on common experience, e.g., Marcus v. Lindsey, 592 So. 2d 1045 (Ala. 1992).

However, it is prudent to not rely on these exceptions and instead identify at least one medical deposition you need to build your damages for trial.

Usually this is an orthopedic doctor, a neurologist, or a chiropractor. (Yes, chiropractors are considered experts for purpose of causation testimony, see Knapp v. Wilkins, 786 So. 2d 457 (Ala. 2000).) Take the deposition via video.  Here’s a simple check list of what you should be considering for the medical deposition:

1. Visual Aids: Use visual aids as exhibits, such as anatomical models, medical-legal illustrations, x-ray imaging, and/or photos of the injuries. Lay the appropriate foundation for admissibility, including relevancy, that such visual aids would help a jury to assist the injuries, and that such aids fairly and accurately depict the injuries, surgeries, etc.
2. Causation Testimony: Ensure the doctor testifies that the accident “more likely than not” caused the injuries. You must check this box to ensure you have satisfied your burden of proof on causation. The phrase “reasonably degree of medical probability” is also used, but our courts have held that it just means the same thing as “more likely than not.” If it’s a case where there’s a tough causation issue, remind the doctor that you are not asking for certainty, just probability.
3. Medical Bills: If you want to reserve the right to introduce medical costs at trial, you need to lay the foundation for the admissibility of those bills. The medical bills must reasonable and customary in amount for the geography region and that the medical treatment must have been reasonable and necessary to treat the injuries sustained in the accident.
4. Qualify the Doctor: Don’t forget to qualify the doctor as an expert (education, training, experience), including confirming the doctor was licensed to actively practice medicine at the time of the treatment.
5. Build Your Damages: Try to get testimony about permanent injury, as this is an element of damage that can act as a multiplier when using the mortality tables to project life expectancy and future pain. If there’s a lost wage claim, ask the doctor to corroborate that the client could not work during this period in time. Ask the doctor about future pain if you think the answer will be helpful. You can also inquire about future medical treatment that is needed, keeping in mind that the standard for introducing future medical is for treatment that is “reasonably necessary.”
6. Boost Your Client’s Credibility: Ask questions that can boost the credibility of your client, such as confirming the client’s subjective complaints of pain correlate to the objective MRI imaging or that your client was compliant with the treatment plan.

Another tip about treating physician depositions: get to the point quick.  Jurors’ attention spans are short.  Video depositions are more interesting than written depositions, but jurors will still probably zone out after about twenty minutes.  Do not spend the first ten minutes qualifying the doctor as an expert. No one cares about the doctor’s double board certification nor his fancy residency training.  Jump into the meat of the case in the first five minutes. Introduce the visual exhibits within ten minutes.  You don’t necessarily want to rush the deposition, but you must keep in mind that most jurors won’t watch or listen to anything after the twenty-minute mark.

Several years ago, I took what I thought was my best treating physician deposition of my career.  On paper, it certainly was and still is. At trial, as we got to the part with the brilliant questions and beautiful answers, I looked over at the jury.  At least 10 of the 12 were either asleep or not paying attention.  They had lost interest because I had spent too much time asking the doctor about his education, training, and experience. It was right after the lunch break and the lights were off in the courtroom – a perfect opportunity for a snooze. So let me say it one more time: get to the point quick.

PREPARING AN ALABAMA CAR ACCIDENT CASE FOR TRIAL

After the doctor’s deposition is complete, you want to begin envisioning what the trial will look like.  What witnesses will you need? What exhibits will you want to introduce? What is the storyline or the “theme” of the case?  You need to begin planning the big picture and then execute your gameplan. Let’s take a look at each piece.

Witnesses: In almost every car accident trial, the plaintiff, the defendant, and a doctor will testify, with the latter often testifying via deposition.  However, you want to consider what other witnesses you may want at trial. If liability is contested, ensure you have that key eyewitness lined up to testify or take his or her deposition. If the investigating law enforcement officer will be helpful, have the officer lined up. If there’s a legitimate lost wage claim, consider lining up your client’s Human Resources manager to testify.  Issue trial subpoenas to any fact witnesses you may want to testify. If you think the witness really can’t make it to trial and their testimony is critical, take their deposition via video.

You will also want to think about securing at least one “before and after witness.”  This is someone who can testify as to what your client was like before the wreck and after the wreck.  A co-worker, friend, or family member who is presentable can be a powerful witness at trial. This person needs to be physically present to testify.

Exhibits: It’s helpful to make an exhibit list well before the scheduling order deadline. I’m guilty of waiting until a few days before this deadline and I have always regretted waiting. Of course, many of these exhibits are customary and obvious: medical records, medical bills, photographs of the vehicles, photographs of the injuries, and other documentation supporting damages. But if you still have enough time before the court’s deadlines, it’s time to think outside the box.

For example, if you think there is the potential that the defendant was driving while distracted by a cell phone, issue a subpoena to the defendant’s cell carrier if you haven’t already. The defendant’s cell carrier, their phone number, and the cell accountholder name should be on the interrogatory questions you submitted at the outset of the case. The documentation received can usually be self-authenticated under Alabama Rule of Evidence 902(11).  Relevancy may be a battle without a so-called “cell phone expert”, so plan in advance if you are prosecuting the case on a distracted-driving theory.

If you think the 911 audio recording could be beneficial, then get it.  To do so, you must file a motion with the court pursuant to Ala. Code § 11-98-12 and then subpoena it from the 911 call center. Think about any other evidence you should try to obtain to present your case to a jury and how you will get it admitted under the Rules of Evidence.  911 calls/records have provided critical information for me in cases, but they can also be detrimental to your case, especially when your client says something in a 911 call that contradicts their deposition testimony.  Tread carefully on the decision whether to obtain the 911 call recording.

Always comply with any scheduling order entered by the judge.  This usually includes disclosure of expert witnesses, discovery deadlines, requested jury charges, witness and exhibits lists, and motions in limine. The last three of those items deserve some consideration here:

1. Jury Charges: Most judges tend to stick with the Alabama Pattern Jury Instructions. Why? It’s a safe play that usually prevents a successful appeal based on an erroneous charge.  The vast majority of the jury charges you should submit should be based on the pattern instructions.  However, in some cases, you should submit additional instructions that are indeed Alabama law and provide the case law citation.
2. Witness & Exhibit Lists: You should list every witness that you may potentially call to testify at trial. The same goes for exhibits. It’s always best to add a somewhat vague category of exhibits, such as “all documents produced during the course of discovery” in the event you forget to list an exhibit and need to offer it at trial.
3. Motions in Limine: Motions in limine request the judge to rule prior to the start of trial that certain evidence is inadmissible or that certain arguments should be prohibited. I always file motions in limine but usually confine mine to case-specific information. If there’s some piece of evidence that can blow up your case, it’s best to try to exclude it prior to striking a jury.

If you haven’t already, imagine your theme for your case: what will connect with a jury? Most trial experts recommend developing a theme to anchor your trial strategy. Build your evidence around that theme so that the trial is a story-telling exercise that empowers a jury to return the verdict your client deserves.

You then must create outlines for voir dire, opening, directs, and crosses. Make sure all witnesses will be there and assign them dates and times to be there. Get the jury pool list from the court administrator’s office the week prior and try to eyeball the jury pool. Ask your co-workers and colleagues to review this list for potential insights. Prepare your client extensively the week prior to trial and do at least one mock direct examination and cross-examination.  Your client must be prepared for the cross and understand how to best respond to the questions that seek to destroy the client’s case. By far, the most important part of a car accident trial, or any personal injury trial, is whether your client is credible and likeable.  Juries tend to only help people they believe in and admire.