Virginia Injury Lawyer Blog

A Circuit Court Judge in Virginia recently commented to me and other counsel that the defense of sudden emergency is "dead" in Virginia. I think the Judge was being somewhat facetious in order to underscore the significance of a recent Virginia Supreme Court decision, but the question remains -- does sudden emergency still exist in Virginia?

On September 15, 2006, the Supreme Court of Virginia announced its decision in Herr v. Wheeler , 272 Va. 310, 634 S.E.2d 317. In that case Wheeler loses control of her vehicle in heavy rain when it hydroplanes on the wet roadway and suddenly crosses into Herr's lane of travel. Wheeler had known of the slipperiness of the roadway, and was being "cautious." The Herr Court (at 288) found that the trial court erred in granting Wheeler's request for a "sudden emergency" instruction, holding that:

[W]hen abnormal conditions are known and the heightened hazards they create are reasonably foreseeable, the standard of ordinary care the law imposes is higher. Where nature has created hazardous conditions on a highway, and such hazardous conditions are open and obvious, the operator of a motor vehicle is required to take care in the operation of his vehicle proportionate to the known dangerous condition of the highway.

Wheeler had admitted knowing the general dangerous conditions and argued that the sudden emergency was not the known generally dangerous conditions but instead was "one isolated spot" of standing water that she had not known about. The Supreme Court rejected Wheeler's argument:

The occurrence of standing water on a roadway during a heavy rainstorm is simply another matter of common experience. The hazard this occurrence presents, including the possibility of hydroplaning, is one the driver of a vehicle along the roadway must anticipate and exercise reasonable care to avoid. Although Wheeler had not encountered standing water on the roadway as she traveled along Route 250 and may not have seen the accumulation of water at the point on the roadway her vehicle began to hydroplane, just as in Harrah, such an occurrence was not an "unexpected happening."

So, is sudden emergency dead in Virginia? The answer is no. But in the many cases in which a defendant claims that weather conditions created a sudden emergency, that defendant better be able to say that "my day was sunny and bright when the sky suddenly opened-up right before my eyes and my car took on a life of its own." If that defendant knew of the dangerous conditions generally and was merely suprised by an isolated spot of the same condition, he has a sudden emergency not of God's making but of his own making. The Supreme Court did not drop the guillotine on the doctrine of sudden emergency, but the Court did drop the guillotine on any driver who knew of the dangerous conditions and comes to court claiming a "sudden" emergency.

Virginia defendants, take it from Virginia plaintiffs -- don't make excuses and don't make frivolous claims.

If you are a personal-injury lawer in the conservative state of Virginia or elsewhere in the land of tort reform, this is my admittedly provocative view -- employed by my firm over the past six (6) years or so -- of how to obtain just personal-injury settlements for your clients:

1. Don't just dabble in personal-injury cases; the insurance defense lawyer is too good for that, and he will only smile as he runs over you while you are dabbling.

2. Study and read about how to be a better trial lawyer. If you don't enjoy much of what you are reading, try something else (not just another book; try another line of work).

3. Select good cases -- this does not mean: select only those cases that are "sure winners;" he who does not take risk is not a real trial lawyer.

4. Investigate the facts, and keep investigating: a) it's fun; b) the insurance companies are great at doing a lousy job at this; c) facts (if wound into a good story) win cases.

5. File suit in every case (with extremely rare exceptions; I told you this would be provocative). You have little leverage over insurance companies without litigation. They don't really ever pay you "voluntarily." They only pay justly you when trial is closing in on them and you are an imminent threat to their money. When they pay you "voluntarily," you have been had.

6. Cerebrate about your case and your client. In the beginning. In the middle. In the end. About the good believeable facts, and the bad. If you don't cerebrate about your case, one among many serious casualties will be your ability to sincerely, powerfully and spontaneously talk with the jury in closing argument. Juries know when you have not lived the case, and when you don't know your client and what her injuries mean to her and her life.

7. Don't attempt settlement until the insurance company smells trial in the next room, in its back pocket, at its bottom-line.

8. Give the insurance company a firm deadline for settlement, and stick to it (unless the client changes his mind). Pre-trial settlement deadlines -- if enforced by your firm over much time and many cases -- pressure all sides to hear an early version of "the-jury's-knocking-on-the-door," and thus pressure the parties into staring headlong into the possibility of a much worse result at trial.

9. Never, ever "beg," "keep after"or try to cajole an insurance company to settle. The appearance of weakness is weakness. Relax. It's their money they're about to lose.

10. Try cases to verdict and get good results -- insurance companies do not respect an attorney with a track record of not going to verdict.

11. Try cases to verdict and get good results -- your track record precedes you, and each good "We the jury find our verdict in favor of plaintiff and award damages in the amount of ..." is wind at your back in your next effort to settle.

12. Try cases to verdict and get good results -- the insurance companies' reasonable fear of a "runaway" verdict or a too-sympathetic jury is a very, very good friend of yours.

13. You cannot worry -- at all -- about your own financial state or about turning down substantial sums of money. You and your client never had it to lose. It's not your money. Money-hungry lawyers are scared lawyers, not great trial lawyers willing to risk.

14. Be honest with your client, not proud or self-indulgent. Your client needs to know your unvarnished professional opinion on settlement and the chances of reasonable-high and reasonable-low verdicts at trial, not your self-indulgent invective about how unfair are the insurance company, insurance defense counsel and Virginia juries.

15. Be completely ready for trial. Completely ready. And ready early. Many a bad verdict results from the assumption of settlement; many a bad settlement results from not being ready to try your case.

16. If the case does not settle within your deadline, try the case, and try it with focus and determination until you hear the knock on the door and the foreman speaking. Then put your arm around your client and feel good about what you have done.

If you have been a trial lawyer for long, you likely have heard of Gerry Spence's famous final plea in just about every closing argument . From his latest book, Win Your Case, Spence speaks to the jury on behalf of little Polly:

Before I leave you I want to share with you a story I tell in nearly every case. It's about transferring the responsibility of the case from us, on behalf of little Polly and her parents, to you, the jury.

It's a story of a wise old man and a smart-aleck boy who wanted to show up the wise old man as a fool.

One day this boy caught a small bird in the forest. The boy had a plan. He brought the bird, cupped between his hands, to the old man. His plan was to say, "Old man, what do I have in my hands?" to which the old man would answer, "You have a bird, my son." Then the boy would say, "Old man, is the bird alive or is it dead?" If the old man said the bird was dead, the boy would open his hands and the bird would fly freely back to the forest. But if the old man said the bird was alive, then the boy would crush the little bird, and crush it, and crush it until it was dead.

So the smart-aleck boy sauntered up to the old man and said, "Old man, what do I have in my hands?" And the old man said, "You have a bird, my son." Then the boy said with a malevolent grin, "Old man, is the bird alive or is it dead?"

And the old man, with sad eyes, said, >"The bird is in your hands, my son."

And so, ladies and gentlemen of the jury, "the case of little Polly is in yours."

Spence tells us: Let go ... Let the lion out ... Trust the jury ... Give them the responsibility ... Give them the power.

Marlo said she was injured in the accident. As her attorney, I believed her. But Allstate Insurance Company just knew that it could push her around. Allstate's insured said that her car was barely moving when it hit Marlo's. The only exterior damage to Marlo's car were scratches on her rear bumper, without dents. Marlo claimed back pain, but she had complained about back pain a couple of months before the accident. Marlo had no medical expenses or lost wages. Her treating doctors largely dismissed her injuries and would not cooperate or testify at the Loudoun County, Virginia trial. Marlo went to a doctor outside her plan who told her that she would need some medical treatment -- not now, but as she got older.

Allstate's insured swore in writing that she had $100,000 of liabililty coverage. Marlo demanded settlement for the coverage limits. Allstate did not respond and made no offer.

Shortly before trial its insured swore in writing that her liability coverage was not $100,000 but only $25,000; and Allstate produced a declaration page verifying $25,000 in coverage. Marlo then demanded the $25,000 coverage, giving Allstate a short deadline by which to respond and stating that after the deadline she would not extend or respond to any settlement offers. Allstate did not respond and made no offer.

Marlo and I were offended by Allstate's treatment. I told Marlo that if we could get a verdict of more than $25,000 she may have a case of Allstate's bad-faith refusal to settle or to protect its insured's personal assets, and that she (Marlo) may be able to recover the full amount of any award, even above Allstate's contractual obligation of $25,000. We took the case to trial.

The jury did not take long, and returned to announce a verdict of $112,000.

Allstate filed an appeal, no doubt hoping that Marlo -- she of modest means -- would be scared of a still longer and more costly battle, and scared into accepting the policy limits. After trial Allstate offered its full $25,000 in coverage. We reminded Allstate that the deadline for negotiation had passed and that we expected full payment on the verdict, with interest.

I told Marlo that she was in the driver's seat but that this time the Allstate vehicle was in front of her and that she was picking-up speed.

Allstate abandoned its appeal, never even filing a Petition for Appeal.

I received a call "out-of-the-blue" from the Allstate insured. I suggested she obtain personal counsel. She said that she wanted this over. She retained personal counsel, who said that she would assign her rights to sue Allstate (for bad-faith) to Marlo. On my advice, Marlo did not respond.

Shortly after the insured's and Allstate's counsel conferred, we received a letter from the insured's counsel withdrawing the offer to assign rights to Marlo. On my advice, Marlo did not respond. I sensed that the insured was feeling more and more squeezed by the "good hands" of Allstate; that the Allstate and insured's counsel were having "open and candid" discussions; that Allstate knew that it had "wrung its own neck;" and that Allstate probably had decided -- depending on young Marlo's strength -- that it may have to pay more than its coverage in order to rid itself of Marlo and its own insured.

After a number of months, we received a request to negotiate. On my advice, Marlo responded that she had a judgment, that she expected full payment on the judgment, that Allstate was guilty of bad faith, and that she was in a position to execute on her judgment against the insured's assets at any time.

Within days we received an unsolicited offer of $75,000. On my advice, Marlo indicated that she expected full payment on the judgment.

Within a week or so, I received a letter from Allstate's counsel offering to pay $123,000 -- the entire judgment of $112,000 and interest of $11,000. Marlo was not in much need of advice at this point, and immediately said yes. A few weeks ago we received full payment.

The moral of the story? There may be a number of morals here, but one is ... if you are injured, and the insurance company is dismissive and arrogant ... fight hard, be patient and let the behemoth trip over itself: arrogance makes mistakes.

Coma, confusion and character. Mark Schluter had all three. In Richard Powers' powerful novel The Echo Maker -- recent winner of the prestigious National Book Award -- Mark is the victim of a mysterious crash that leaves him comatose and confused, and needing every bit of his toughness and character.

In the first few hours of his living nightmare, an anonymous person leaves Mark a note at his hospital bedside:

I am No One but Tonight on North Line Road GOD led me to you so You could Live and bring back someone else.

Mark and his caregivers attempt to find the author of this mysterious note, in hope of answers to how and why Mark's life suddently turned tragic. Mark not only suffers from Traumatic Brain Injury (TBI) -- he has a specific subset known as Capgras in which the victim cannot identify certain people, including loved ones (here Mark's beloved sister). The tragedy expands -- Mark's sister gives him constant care, but Mark wonders who she is and why his sister is for the first time not there when he really needs her.

All readers will be intrigued by the mysteries of the book -- the mystery of who authored the note, and why; the mystery of Capgras and the vagaries of the traumatized human brain: and the mystery of what happens to a burned-out journalist and an ivory-tower cognitive neurologist when they realize that they are living their own version of taking photographs of human misery without seeing the human in misery.

I read this book as a trial lawyer representing victims of brain injury, but at the book's end I -- like the journalist and neurologist in The Echo Maker -- was challenged once again to embrace and not ignore the human in human misery. We trial lawyers representing victims of brain injury have duties but also a real blessing in accompanying these courageous victims in their struggles and triumphs. The blessing is not that God leads us to them for their sake, but that God leads them to us for our sake. We see them live, and we even see them "bring back someone else."

For additional details, comments or questions, please call me -- Doug Wessel -- at 703-904-7900, or send your e-mail to me at DOUGWESSEL@aol.com.

A few weeks ago I learned that one of Virginia's most distinguished personal-injury trial lawyers had suffered a bitter defeat. We need folks to continue to make the good fight, and I wanted to let him know of my respect for his courage in fighting the good fight against the odds.

I did not have far to look for my inspiration. I looked to my office wall and saw the fighting words of the indomitable Teddy Roosevelt that have sustained me as I approached a battle or reeled from a stinging defeat:

It is not the critic who counts, not the man who points out how the strong man stumbled, or where the doer of deeds could have done better. The credit belongs to the man who is actually in the arena, whose face is marred by dust and sweat and blood, who strives valiantly, who errs and comes short again and again, who knows the great enthusiasms, the great devotions, and spends himself in a worthy cause, who at best knows achievement and who at worst if he fails at least fails while daring greatly so that his place shall never be with those cold and timid souls who know neither victory nor defeat.

There are those in our profession who never really enter the arena, or who enter the arena only when victory is assured. We need not be among these "cold and timid souls." Engage the battle. You may lose the battle. But keep fighting the good fight -- you will win the war.