I have written, and spoken, a LOT about insurance. Why YOU should have it – what kind you should get – what should you watch out for – What sorts of insurance can HELP cyclists if they get into a crash with a motor vehicle. How does your Insurance play into your view of JUSTICE?
I was downtown today, a rarity in this day and age of Zoom calls with judges. I was downtown to support a client who was hit by a car. The client was a regular bike commuter. On his pre-sunrise morning ride he was, as always, well lit up with reflective gear and bright, operating, “legal” front/rear lighting. He was on a main road waiting to make a left turn so he was well into the lane when a car came up from behind and just slammed into him.
The motorist appeared to just… keep going … a bit before she finally stopped… a few hundred feet down the road. There were two key witnesses – one was directly behind the offending motorist and one was ahead, waiting to pull out of a side street. When the client was struck, bike parts flew in the air and landed on the next car, the witness behind’s car. The witness ahead saw the crash play out and was shocked when the lady kept going… When he spoke with the motorist she seemed to have no CLUE about what had just happened
Eazy/Peazy Slam Dunk right? Well… you’d THINK… but… Justice can be slow… and hard to come by…
The client’s injuries were severe- significant. Multiple rib fractures- ear almost torn off – stitches over his eye and across the back of his leg – and, most significant, a traumatic brain injury with shearing and a frontal lobe contusion. The rider was hospitalized for several days and did not return to his job – a highly specialized, analytical gig – for over 3 months due to his head injury. He has no memory of the crash.
The police arrived & the 21 year old motorist was found to be driving the car without, it appears, a valid license. She had a bit of a history of crashes. They talked to witnesses, gave her a couple of tickets, cleaned up the scene after the client was carted off in an ambulance, and left.
Here, the motorist is fighting the two tickets she received… one for “ACDA” – Traffic Code Slang for “Assured Clear Distance Ahead,” basically causing a rear-end collision by failing to stop before hitting the vehicle in front of you. The second ticket is for driving on a suspended license. Since she has been ticketed and charged she doesn’t have to say anything – what with the 5th Amendment and all. So we’ll have to wait and see what her lawyer argues at trial, and wait to see if she testifies.
That’s part of the reason I was downtown – to support the client, who really wanted to put this part of the case behind him – and to see what the defense was going to say. The client was hoping for some level of “Justice” today – even if it was just the judge wagging his finger a bit.
The “Justice” system is really not built for speedy “justice” in these types of cases.
In Ohio we have two court systems for trials… well three when you count “Small Claims” courts. For lower level crimes, misdemeanors, and smaller civil cases [<$15,000] there is “Municipal Court.” For felonies and bigger civil cases you go to “Common Pleas Court.” In each court system, you get to have your trial, with witnesses and exhibits and juries. If you want, you can appeal to the appropriate “Court of Appeals.” The two court systems are one floor apart in the Courthouse, but WORLDS apart in the types of cases they handle.
Municipal Courts and Common Pleas courts are uniquely creatures of County politics in Ohio. Judges are elected. In Hamilton County instead of county-wide Municipal Court judge elections we now have seven districts. The make-up of the court is far more consistent with the demographic and racial make-up of the county. There are 14 Municipal Court judges, found here – https://hamiltoncountycourts.org/index.php/municipal-judges/
Common Pleas Court judges are elected in a county-wide ballot system.
Municipal Courts often, to me, seem to be more about administration than the administration of justice. There are just SO MANY cases… tens of thousands of traffic matters and thefts and evictions and such… all handled by the 14 elected judges. The goal is to keep the cases moving – get through the docket – keep track of everyone – follow up on the more serious cases. For a real slice of real life, spend any morning, Monday-Friday, on the 1st or 2nd floor of the Hamilton County Courthouse and watch the parade of folks who end up in front of a Municipal Court judge… it can be a lively hallway…
Frankly, I rarely get into Municipal Court. Our cases are virtually always filed in Common Pleas Court because we are always seeking a recovery that far exceeds the $15,000.00 jurisdictional cap on damages the law provides for Municipal Courts. However, if a client is ticketed in a crash, I will often defend the ticket and take the traffic case to trial just to get a shot at cross-examining the other driver and police officer before they have been prepared by an aggressive insurance defense lawyer. We can get the transcript and have a mini-deposition before the insurer even knows the claim is coming.
My other reason for heading to Municipal Court is to support a client who was the victim of a crash. I like to watch the traffic trials, get a sense of the defendant, see how the witnesses come across on the stand… all from the peanut gallery.
This progress of this case is probably…sadly… typical.
Crash was in September, 2022. The first hearing with counsel was October 24 with trial set for November 9. Hooray – a quick trial date just 2 months from the crash… but…
We all showed up November 9 – the client and his wife – two witnesses – me. We arrived before the 9am hour.
Now… Sidebar… The case is “Set” at 9… but… as savvy court watchers know this is a farcical setting. There is a 9am Cattle Call with dozens of cases ALL set for a 9am start time. Most are in preliminary stages and those cases in which actual lawyers are actually involved get called first. Then cases where folks don’t have counsel, or want counsel, or want a continuance get called. Sometimes there are follow ups on prior cases… and those get called and handled. All the cases that might actually go to trial get “called” just to see if anyone showed up and then they are placed at the back end of the docket… so the witnesses go out and chill in the halls for a few hours. The Judge gets through ALL his other non-trial stuff first and THEN… the case is called for trial.
In November we all waited… from 9… until noon-ish. Then the Prosecutor came out… and advised us that the fellow who had been dealing with us for the defendant was not…quite… actually a lawyer yet… he was sort of covering, in a very NON-Unauthorized-Practice-Of-Law manner, for the real lawyer because the real lawyer on the case was not available… plus, there was some “discovery” that the lawyer wanted to get from the prosecutor… so the case was going to be continued…
so …Yay… drive downtown – park – schlep to the courthouse – 3 hour wait… Go Home…
The Court then set the case for a “Pre-Trial” in January. There are many versions of a “Pre-Trial Conference” – sometimes the PTC is used for negotiating an end game – sometimes it is truly preparatory for trial. Here, it was an opportunity for the prosecutor and defense to exchange “discovery” which didn’t amount to much in this case. But hey, gotta do it… and they did…in January 2023. After the PTC the Judge set the case for trial …HOORAY! Today February 15… at “9am”…
So we all schlepped back downtown to arrive before 9… parked… walked to the courthouse…. clients go through Security, always an exciting 20-30 minutes or more… while I got to use my “Get In To Jail Free” card that lets me bypass Courthouse Security. Again, everyone was there… Client, his wife, 2 witnesses and me along with my co-counsel, KY BikeLawyer Chris Carville.
Again, we wait… the case gets called around 10 for the 1st time. This time the actual defense counsel appears & stands up in front of the court and gives us the Bad News… his client has sent him an email that indicates she is suffering from a migraine and can’t make it to Court.
Now, depending on the judge and the charges and the client and the history and the credibility of defense counsel this announcement in open court could be met with a variety of responses… Anything from “continuance granted” to “Bailiff send two officers to her home and drag her into Court.”
Today, the judge was Ticked…we were ALL there – AGAIN – standing in the back of the courtroom, so he saw that. However, he decided to give her “one more chance” to show up… so now we are set for trial…again… in March.
So what does “Justice” look like.
For the client following a traffic case, it’s tough to find Justice here in the bushes. It seems like the defendants aren’t facing much in the way of consequences and it seems like a lot of folks don’t show up for court. This happens… a LOT… usually NOT with counsel standing there holding an email. Also, this case is rare in the witnesses are EXTREMELY conscientious – they’ve shown up for TRIAL… TWICE… and were told COME BACK LATER… often witnesses ignore subpoenas and don’t show up. In fact, it is a definite defense tactic to keep the ball in the air long enough that everyone quits showing up, and maybe the judge then dismisses the case…
So yea… Justice… can be hard to find… especially in the world of Traffic Crashes… where the severity of the cyclist’s injury often doesn’t really play in to the severity of the consequences for the motorist. An ACDA ticket is a payout ticket. The Driving Under Suspension charge is more serious- it can be a First Degree Misdemeanor leading to a lengthy suspension, or even jail time.
Hopefully, in March, we’ll see what Justice means in the traffic side of this case…
But the civil side is a different matter…
Can we “sue her?” Of course…but… that is often not smart from an economic standpoint. Why? Because MOST people – if you sue them and win and try to collect – have a lot more debt than assets. If you win a million bucks the other side can usually file Bankruptcy and sweep the judgment away. Sometimes we HAVE to sue folks – and we may have to do so here… but typically we try to figure out the coverage situation first.
Remember up there, like 10 minutes ago, I talked about INSURANCE? Well, initially we thought the motorist in our case didn’t have any… but we were contacted by a carrier and a claim is open. How MUCH insurance does she have? We don’t know…and in Ohio [unlike SOME states]… the adjustor does NOT have to tell us. We could file suit and find out, but given what we know about the driver it is unlikely that she’s carrying extensive coverage… probably less than the client’s coverage… whatever is is, the amount is unlikely big enough to fully compensate the substantial injuries suffered by the cyclist.
But… CYCLISTS… this part is for you. I’ve preached in my posts…and in my speaking engagements… that YOU need to PROTECT YOURSELVES. If you are a regular ROAD user, buy AS MUCH Auto coverage, [UNINSURED MOTORIST & MEDICAL PAYMENTS COVERAGE] as you can afford to protect yourself.
Also, buy an UMBRELLA Policy which covers you for that “once in a lifetime” moment where you suffer a catastrophic loss… but.. make sure it COVERS YOUR UNINSURED MOTORIST POLICY and not just your liability policy.
I write about this concept here – you need to make sure your Umbrella Doesn’t Have a HOLE IN IT
-> https://ohiobikelawyer.com/uncategorized/2021/04/are-you-covered-does-your-umbrella-have-a-hole-in-it/
So yea, Justice is tough to find. It’s out there in the weeds sometimes… Sometimes it’s wrapped up in a nice bow and feels good to get it… and sometimes you feel like you’re stomping around in the sticker bushes trying to find it… I’ll keep you posted here…
© 2024.
