Sunday, December 16, 2012

The Effect of Pre-Existing Injuries on your Personal Injury Claim


Below is an article by Keith Findlay of Baca, Findlay, & Dziak, LLC. Keith handles a variety of legal issues, but focuses heavily in personal injury. If you've been injured, Keith is the right Albuquerque personal injury attorney to help with your case.

The Effect of Pre-Existing Injuries on your Personal Injury Claim

The law does not hold a person responsible for injuries that existed prior to their supposed act of negligence that led to their being liable for such damages. Said another way, if you have a “trick knee” from an old skiing accident and one day you suffer a personal injury due to a treadmill malfunction, you can sue the gym or treadmill manufacturer for your injuries and expenses but you cannot reasonably expect to recover for a surgery to completely repair your previously injured knee. The law will only require that a defendant (or tortfeasor) compensate the plaintiff or injured party for the expenses associated with the injuries that stem directly for their act of negligence.
An area within New Mexico personal injury law that the concept of exclusion of recovery for pre-existing injuries is very active is that of injuries involving soft tissue damage. It is common to have whiplash, back strain and other such soft tissue injuries in car accidents. While injuries such as broken bones are easily attributable to a specific event, soft tissue damage is far more difficult to reliably pin point as far as date of injury is concerned. If the plaintiff in such a case has a documented history of previous neck or back problems, it suddenly becomes far less clear when the specific injury to the neck or back actually took place. This creates significant “wiggle room” for defense lawyers to attempt to minimize the damages attributed to their client.
Naturally, there are varying shades of grey in this concept for attributing liability only for direct injuries caused. If, say, the plaintiff had a history of back problems but had not needed treatment of any kind for many years prior to the event in question the connection between the event and the injury is more clear. However, if the plaintiff had been seeing a doctor regularly for the months immediately preceding the event, then the causation of the back injury is put in question. Perhaps this plaintiff was injured in the car accident, but they are trying to get extra money to treat an injury they had previously suffered. 
The issue of pre-existing injuries in personal injury cases can further be muddled if you consider that many people suffering from such soft tissue injuries can go long periods without feeling pain or needing treatment, only to later find that their injury had caused significant degeneration of the tissue and even greater injury, only much delayed. Even if the plaintiff had not been suffering pain or undertaking treatment immediately prior to the accident, it does not mean that they did not have such degenerative tissue problems from their previous injury, and thus, they may not be compensated for injuries to their neck or back. Because the injury pre-existed, even though it had not been treated for years, means that it was not legally “caused” by the event and thus the plaintiff cannot recover for that soft tissue injury.
It can be treated as a general truth that an injured party will not receive full, 100% compensation for damages relating to their complaint if there existed previous injuries or damage because the defendant would no longer be directly and wholly liable. The practical effect of this is that most personal injury cases that involve at least some pre-existing injuries will settle, or even be adjudicated, at a percentage of the total damages suffered by the plaintiff. If you’ve been injured in an accident, of virtually any kind, do not delay. Speak with your local personal injury lawyer about your situation and learn more about your possible recovery/compensation options. 

Friday, July 27, 2012

Beyond a Reasonable Doubt


Its been a while since I've posted any new articles, fortunately we've been busy at the law firm but here is an article written by my law partner, Keith Findlay:

As a Albuquerque Criminal Defense Lawyer we are frequently asked what “beyond a reasonable doubt” really means. Essentially, reasonable doubt is the standard of evidence that applies in criminal cases (as opposed to a “preponderance of evidence” standard which is applicable in civil cases).

In order to find someone guilty of criminal charges, the prosecuting side must convince a jury (or judge in certain circumstances) “beyond a reasonable doubt” that the person is guilty of the crime they are charged with. The term “reasonable” gives the evidentiary standard some leeway, as the existence of doubt itself is not enough to get away with the committing of a crime. It has to be doubt in the mind of a reasonable person (i.e. claiming “an alien did it!” would not suffice for a reasonable person). New Mexico statutes defines reasonable doubt as: “a doubt based upon reason and common sense - the kind of doubt that would make a reasonable person hesitate to act in the graver and more important affairs of life.”

Generally speaking, a person charged with assault and battery in both a civil (tort) matter and a criminal matter will have a harder time defending against the civil case because the standard the evidence must satisfy is lower in civil cases; an example of these differing standards in action can be seen in the OJ Simpson murder cases. In the criminal case, he was found not guilty beyond a reasonable doubt and acquitted, but in the civil case he was found liable for the murder and forced to pay the family damages under the preponderance of evidence standard.

The rationale behind this important standard of evidences makes sense as the United States is a country that is premised on the notion of “innocent until proven guilty.” The other important consideration is that with criminal charges the stakes are usually considerably higher because people view life and liberty as inherently more valuable than the money that is commonly at stake in civil legal actions.

Just because the standard of evidence is higher in a criminal case does signify that one should take any criminal charges lightly (because, again, the stakes are so high). I always recommend that someone charged with a crime be sure to discuss their case with a local (as the law can vary from place to place) criminal defense attorney to assure the best representation possible.

Thursday, February 23, 2012

New Mexico Probate Change 2012

Albuquerque Probate Lawyer on 2012 Law Change

In a recent article we published something regarding the New Mexico Small Estate Affidavit and how it works in New Mexico. One of the important changes to the New Mexico Probate Code here in 2012 increases the amount that the Estate must be under in order to make use of a Small Estate Affidavit. It used to be $30,000, but that amount has increased to $50,000 for people who die in 2012 or later. This change will make it so that families with small estates will not have be burdened by the expenses associated with probate to transfer items of personal property. Again, a Small Estate Affidavit is a useful tool in being able to wrap up a deceased loved one's affairs, but it cannot be used to transfer real estate.

The fact that the deceased person may have owned property at death does not necessarily mean that a probate proceeding will need to be commenced to transfer that property.  In New Mexico there are several ways that land can be transferred so that probate is not required. A Albuquerque Probate Lawyer can tell you if a particular piece of real estate will have to go through probate to transfer ownership.

Of course the key to avoiding probate is talking to an Albuquerque Estate Planning Attorney, who can help you setup your estate in such a way as to avoid probate. With regard to transferring property, an Estate Attorney can advise you how to do so without having to go through probate. Hiring an estate planning attorney that is local is important because where you die controls part of your property, but with regard to real estate, the property (and mechanisms to pass title of that property) is controlled by the State's laws in which it resides. Good planning will help cut down the costs associated with probate, but often more importantly, good planning can cut down on the time factor that a probate proceeding inherently adds. Some transfers of real estate can be setup to happen automatically, which can be important for the heirs in trying to administrate the deceased person's estate.