NeuwirthLawAuto Accidents, Insurance

These days, you either works for these services or use them. It is very easy to get signed up to work for these services and even easier to use them. What happens when you or your driver are in a car accident?

Well, regular car insurers have made it very clear that they will not cover the gig worker who is driving their personal car for their jobs. If you ask the gig worker how their insurance works, as I often do, they are wholly unable to explain if they are covered. This is not surprising. Most people from smartest to dumbest cannot explain their car insurance. Insurers like you to be in the dark because it helps them save money or screw you in common parlance. Insurance is a necessary evil.

But, let’s say you are driving for Uber, you are on your way to pick up a fare, and are hit by someone running a red light.  Pennsylvania law requires you to carry at least $50,000 bodily injury per person and $25,000 for property damage. If you actually are carrying a passenger, then you have to carry or uber/lyft has to carry $500,000 for death, bodily injury and property damage. This is far better coverage than the state minimum of $15,000, which is embarrassingly low and not terribly helpful for anyone.

So, this is good for passengers or pedestrians or others hit by drivers. But….. and it is a big but, there is no legal requirement that the driver carries insurance for himself or uninsured / underinsured motorist coverage. This is a flaw or hole in the law. It is there intentionally at the impetus of the insurance industry to protect themselves. Nevertheless, this is bad for drivers because if they are in a hit and run (uninsured) or hit by someone with minimum coverage (underinsured), then there may not be any coverage or insufficient coverage.

Most gig economy workers are not well-educated in the insurance business and I try to explain to them as I ride around in their cars, but it is something that they need to be made aware of for their own safety.


NeuwirthLawAuto Accidents, Insurance

So, you are driving your uber eats car along and you are hit by another car. What are your lost wages? Well, basically, you will have to show what your past uber eats wages are and that you are physically unable to work further. That is really hard to show unless you are undergoing surgery with persistent problems after surgery. The law says we can prove lost wages without an expert for past lost wages or wages from the time of crash to trial so that is not terribly difficult.

But, what if you are working under the table? Can you claim these losses? Nope. That is the risk you take in not paying taxes. You cannot document this income in any way, so it cannot be asserted as a loss. End of story there.

What if you are self-employed? These are the hardest legitimately claimed losses to collect. Often, the self-employed person has some documented wages but a lot of their losses come from not being able to put time into the business. The small business losses often come from jobs that the owner missed out on getting because they were recovering from their injuries. These are nigh impossible to prove.  And, nigh is being generous.

What about real wage losses if you are over 65? These are very provable and collectible, but the jury has to believe that you would have kept working and were ABLE to keep working. So, your average non-physical laborer can likely make a stronger claim for future losses than your auto mechanic or construction worker as these jobs take a huge toll on people physically.

How do we prove these losses? Using the regular doctor experts plus a vocational expert to establish that you needed to use your right arm for your job and cannot do so fully anymore because of your surgery, hardware, scarring etc.



I am off to Park City, Utah to hit the slopes with my family next week. Skiing is a hobby and something that global warming has seriously affected. Out west, they have crazy amounts of snow right now. But, along with the awesome pow, it seems that there are some awesome lift ticket prices too.

I know that it is an expensive sport and a tough business for the ski operators, but still, the prices are rather surprising.  $120 to ski at camelback in the poconos is a bit painful. At least they have snow out west.

Skiing is a bit like golf without the practice. it is a lot of fun under the right conditions, but unless you live out west or in Vermont, it’s a very expensive day or week.

To me, there is nothing more fun than dropping in on a challenging black diamond, meeting your kids at the bottom in one piece with a good sweat going, followed by a cold beer and a nap after about ten runs.


NeuwirthLawCase Matters, For Lawyers, Law Practice Management

Every case of mine needs at least one expert witness because my client and I are not allowed to say that an arm was fractured or a herniated disc herniated without a doctor saying it. Them’s the rules. So, I spend a decent amount of time and effort reading the experts’ reports both from my side and the opposing side. The content of the expert report matters. The presentation of the report does not usually matter too much, but it bothers me when an expert has too many typos.

It is not hard to say to an expert, you did not read your report before you sent it out did you? Or, you did not list my client’s deposition in your report, so you did not read it. Or, you called my client Sally, him, etc.  She’s not a him is she? No, she’s not. It opens up a raft of semi-aggressive cross on how the expert is just doing this for the money, not for justice, how they do so many reports, they don’t have time to be careful, and who wants to listen or trust an expert who produces garbage looking reports.

As you may have figured out, I am a lawyer and take writing seriously. I try really, really hard to produce writing that is clear, concise, and proofread. Occasionally, the Neusletter audience lets me know when I have misspelled or failed to proofread.

I don’t mind a typo or two in a four-page report. I think any decent expert could respond to a question about typos by saying well I spend all my time working on patients and less so on their reports, counsellor. But, I am currently working on a case where I have four reports to deal with and each has a variety of typos, mis-wordings, poor grammar etc. At some point, that just reflects on me and looks shabby or shoddy. Why four experts? It’s a biggish case. The client was a pedestrian struck by a car and was making $200,000 a year in salary. So, that case needs an expert in orthopedics, an expert in physiatry who can associate the ortho injuries with the job difficulties, and then an expert to project future income losses.  Another expert is needed for another injury that is harder to explain.

So, while I am paying $1500 or more per expert report, the quality of expert report writing is crap. I now must follow up and tell their admin assistant to correct the spelling in paragraph four, put a period in paragraph three, and correct the year or the date etc.  It’s annoying. Doctors and their offices don’t use redlining or google docs and so this is a cumbersome process that simply delays things.

It really does not change the nature of what the expert will testify to. But it sends a subtle message to the defense that they cannot accuse the expert of being sloppy because his reports are fully proofread by me. Is that my job? I guess so. I have always proofread things. I get that people don’t write well or carefully, but the work product that you produce can expose your expert to self-inflicted wounds.


NeuwirthLawAuto Accidents, Case Matters, For Lawyers, Insurance

I write a lot about the business of personal injury law. Today, I am going to write a little bit about things I don’t often write about and that is what my clients go through before and during their cases.  Here are two examples:

Sally is a new grandmother and very excited about her new role and spending time with her daughter’s first born. Sally works remotely for a company that values her and for whom she has worked for years. Sally’s husband died 8 years ago, and she has a boyfriend in Pennsylvania. Sally has a springer spaniel named Lulu and Sally is a serious pickleball player and fairly active. Sally is a no-nonsense 60-year-old woman who mostly just wants to be treated fairly.

Sally is on her way home from shopping for groceries on a sunny day and listening to the report of Punxsutawney Phil’s latest prediction. Sally notes that Phil is a blip in time before the super bowl and before spring. She has a left turn arrow and is making a left turn at a large intersection in a nice suburb and an idiot driver runs a red light and absolutely crushes her newish Ford Bronco. The impact was really pretty shocking. Her airbags go off and blast smoke and glass everywhere.  She had to pee on her way home and the seatbelt caused her to pee on herself. Embarrassed about the pee and somewhat disoriented, she is super worried about Lulu who was in the car but not wearing a harness or doggie seatbelt. A whole bunch of drivers stop and an off-duty cop comes rushing to help. 911 is called and Sally takes Lulu home, goes to the bathroom and changes clothes and goes to the ER.

Sally’s car is destroyed. Her trip to see her grandson must be put off for two months because she is in so much pain. Sally has birthed children and had surgery before, but the pain of a broken sternum is really like nothing she has felt recently. Every breath hurts. Every breath reminds her of the idiot driver and how he screwed up her life for the next year or so. She is not worried about her job as they value her and will wait for her to return. But pickleball is out for the near future and she is just mad, pissed off, frustrated.

She comes to meet with me and we discuss that this is a straightforward case. The insurer doesn’t see it that way because Sally did not go straight to the ER by ambulance and the sternum fracture did not show up on x-rays until months later, she has no lost earnings to speak of, and the annoyance, pain, and suffering simply don’t matter to Progressive. Sally comes to rightfully believe that Flo is a fraud and learns that personal injury lawyers perceive Progressive as the worst of the worst insurers to deal with.

Sally must file a lawsuit and sit through a deposition. She is a dry and unemotional person as befits her undergraduate degree in economics. She does okay at her deposition because she has a hard time expressing her emotions outside of idiot and asshole and the whole deposition is focused on her and her injuries and not on the stupidity of the other driver.  Her case settles against the idiot driver for $85,000 but not the full $100,000. This settlement is okay or acceptable and there is a second lawsuit to come against her own insurer. That is a story for another day.

Highway Fatality and Truck Underride Cases

NeuwirthLawAuto Accidents

Periodically, there are terrible fatal crashes on our highways. You hope that you are never involved in them. As a lawyer who handles vehicle crashes, I encounter these cases periodically. I am working on a new case involving a drunk driver who killed his front passenger on a local highway after a night of drinking. The driver will likely go to jail for a decade or so.

How do these cases play out in the civil system? Well, first, in any fatality or near fatality there is a lot of police work done to document the aftermath of the crash. Someone may face significant jail time out of these incidents and hence documentation of what caused the crash is important. This is very helpful to me as a civil lawyer because there are lots of photos and measurements that eventually explain and document what happened. Often, the victims are either deceased or facing criminal charges. As a result, usually there will be no statements about what happened from the driver or passengers.  Sometimes there will be statements found in the medical records at the hospital. But, usually the facts don’t lie and generally the cause of the crash can be pieced together.

I always have to evaluate whether there is a dram shop case or a vehicle underride situation or a roadway design defect.

Dram shop cases are lawsuits against bars or restaurants that overserve obviously intoxicated patrons who then crash their cars. These are tough cases that are often dependent upon good surveillance video or testimony from other people at the party or event.

Truck underride cases involve collisions in which a car slides under the body of a truck—such as a tractor-trailer or single-unit truck—due to the height difference between the vehicles. NHTSA categorizes a crash in which any portion of a passenger vehicle slides under the body of a larger truck or trailer as an underride crash. In other instances, the striking vehicle may pass completely under the struck vehicle and exit the other side, shearing off the roof of the striking vehicle. These underride crashes can lead to severe injuries or fatalities.  There has been a significant push to improve truck safety around vehicles by putting cages or other barriers to prevent underriding.

Roadway design defect cases are less common on highways and more common on local roadways with intersections or vehicles in close proximity to each other causing near misses etc.  Sometimes, wrong way car crashes are due to design defects but they also usually involve alcohol.

Editor’s NOte: Good article on Pro Publica regarding NHTSA’s role.

Go/No GO

NeuwirthLawCase Matters, For Lawyers, Law Practice Management

Deciding whether to file suit on a case is often just a business judgment on my end. Based on having done this for 20 year plus, is this a case that is worth putting into suit? Recently, I have had the difficult conversation with clients in two cases that simply did not make sense to put into suit. What does this look like? Well, let’s say you sign up a client and their liability or negligence claim is okay but not great. Perhaps the way that they fell is a little questionable, or the car crash was maybe 50% their fault. In those cases, I don’t usually want to file suit because there will always be a defense and defense lawyers eat that stuff up. But, explaining that to a client is tough and usually the client will be pissed at the lawyer, even though the case will get harder not easier once suit is filed.

The insurance company usually recognizes that the case is weak and makes a commensurately crappy offer. So, the client is faced with a lawyer who wants to drop their case and a poor offer. On the other side, in a strong case with strong facts, clear negligence, and solid injuries related to the incident, insurers will make decent offers seeking to get the case resolved before they must make real payments later on.

But, in the iffy case situation, no good will come of pursuing the case into court. Getting this across to the client is not terribly hard, but it is not fun and doesn’t result in good future client relations. The fact of the matter is that you took the client’s case and guessed wrongly that it was going to be worth more than it turned out to be worth. So, before I spend more money or time on a case, it needs to be settled, dropped, or referred out to another lawyer.

On the flip side, when deciding which cases in the pipeline to file suit on, usually I just pick the strongest case with the best damages and put that case in next. Few personal injury cases get better with time beyond a year or two. Usually within that time period, a person will have had surgery or will be largely better.  In the few cases where someone has serious permanent injuries, those cases need to go into suit first or move to the head of the line because there is no reason to wait for them to get better.


NeuwirthLawSlip and Fall, Sue The City, Suing Big Box Stores

Don’t let this happen to you!

Some call it winter, but for personal injury lawyers it is a good way to fill out your early season case load goals. Some may ask are these really cases? The answer is an unqualified YES. Why? Well, generally people with cases will have fractures from their falls and fractures are really indisputable as to what caused the injury. Often, people come to me with videos showing the police and EMS workers slipping as they walk across the parking lots in their work boots.

As you may know from my prior writings, personal injury lawyers do not do well by taking cases where both negligence and causation or injury is disputed. It is just too hard a fight to take and is not good for business and will not result in a happy client.

So, what is a good slip and fall case? Well, during snowy years, people slip and fall on commercial properties and often in commercial parking lots due to negligent snow or ice maintenance. If you fall and fracture your lower leg and need surgery as a result of a fall on ice, your case is going to be worth over $200,000 and the proof of negligence is the only issue.

Are these real cases? Oh, yes. Often, a client comes to me with the following story, I was approaching stores in an outdoor mall and fell on an icy sidewalk. Or, I was going to a doctor’s appointment and fell on an unsalted parking lot.

So, who is at fault here? While the landlord is plainly liable for maintenance of their property and hence a defendant, the landlord usually subcontracts the sidewalk and parking lot maintenance to the snow contractor or landscaper. While the landscaper / snow contractor has years of experience doing their jobs, they also are more focused on hitting all of their customers than they are in doing a great or even a good job. What makes these cases easier is that the records of snow removal, storm response, and salt spreading are often poor to non-existent.

However, in Pennsylvania and a lot of northern states, a landlord is not liable during active snow falls, ice falls, etc. We have a hills and ridges doctrine that basically says a fall during storms or generally slippery conditions during active precipitation is not the landlord’s fault. So, usually, landlords have a day or two to clean up a property. But, problems often arise when snow contractors plow snow to the side of a lot, the temperature rises, the snow melts, and then refreezes into a sheet of ice. People then fall on clear black ice and it is plainly the fault of the contractor.

These refreeze cases are among the strongest because they were caused by the contractor’s plowing and not salting enough or not anticipating the refreeze effect.

The other strong cases are the broken downspout or gutter cases.  In a lot of snow and ice cases, the landlord will say that they never had a fall or were never on notice of the danger. While that is an oft-used defense, more often, an ice slick across a walkway is the result of poorly managed gutters either spilling water out of a gutter or broken gutters.  Both of these situations are just negligent maintenance and easily proven.  These cases are not the contractor’s fault and fall more on the landlord.


NeuwirthLawCase Matters, Courts, For Lawyers, Law Practice Management

Editor Note: You have to dig deep to find an interesting Trial Notice image.

When a case is getting close to trial, the Courts will let us know by sending out a trial notice. When I was a younger defense lawyer with an oversize volume of cases, this would start a panic at the office as we struggled to make sure everything was ready for Court.

As a plaintiff’s lawyer, while trial notices are not my favorite mail, they do present a chance to really dig into a case and see if the case can settle or if it has to go to trial. Usually, Courts outside of Philadelphia County are fairly flexible with scheduling of trials.  Courts in every county allow us to put in conflict letters telling the Court that we will be on vacation on x days and unavailable. As long as both sides are wiling to accommodate each other and the Court is agreeable, the case will get to trial eventually.  The Court does not usually care too much as long as both sides are moving towards settlement or trial. In federal court, the judges and the system is more geared towards forcing litigants to trial on the Court’s own schedule and less accommodating of our demand and needs.

The nice thing about trial is it is a final reckoning or resolution of the case.  There are rarely appeals from personal injury cases as the jury’s word carries a lot of weight with appeals courts. If you have a jury verdict for or against you, there had better be a big fat clear issue to address on appeal or you are going to lose more often than not.

Once a trial notice comes in, my first call is usually to opposing counsel to see how they are feeling about the case, the schedule, conflicts and to get a sense of when the case will actually go to trial and what the interest is in settlement.  Then, my second call is usually to my expert witnesses to gauge their availability and then finally the client. The client comes third because I have to know about the first two before talking to the client and advising on what is going to happen next.

How your client feels about trial will really really depend on them. I have had clients with prior cases who know or claim to know exactly how to testify. I have had several female clients who have been divorced and seem well aware of how the court system works and how to testify. More often than not, my older and better off clients do not see trial as a great idea for resolving cases.

The one thing that seems to get cases settled is that in Pennsylvania, lawyers are not allowed to tell a jury what we think the case is worth or what the verdict should be. There really is no way around that.  You can try to say that Joe’s medical bills are $25,000, but that will usually vastly undersell the pending offer on the case or what the insurer would pay. So, jurors are often in the dark on what a case is worth in my mind. In New York and other states, a lawyer can ask for $625,000 or $1.1 Million etc.  There are ways to put numbers in front of a jury in Pennsylvania to guide their evaluation, but these situations are not the everyday occurrence and that is a subject for another day.



Interview with a vampire…. Or anti-vaxxer



Some years back there was a vampire movie called interview with a vampire.  Brad Pitt was the vampire. He was very well received among the living females in the movie but sucked the life out of them. I recently had to revisit this sense of being exhausted by a discussion after an hour talk with an unrepentant anti-vaxxer person or two. I had just given blood and played some tennis so maybe I was a little peaked. But, they are truly nutty and exhausting.

How does this relate to the law? A lot of what I do involves trying to assess how a jury or your average person would look at a particular situation. So, how do you account for the anti-vaxxer crowd on your jury pool? It is hard to weed them out. I ran a few focus groups pre-covid and there was a single angry white male who would always blame the victim in my cases where victims are usually blameless. After hearing his opinions on three different cases, they began to sound predictable and I ended up not inviting him back. But, his type of mindless anti-vax question everything mindset is corrosive and difficult to weed out.

In jury selection in a routine civil case like a car accident or slip and fall, there is very, very, very little time to get to know your jurors. It seems that some combination of trump, fox news, the internet, and covid has morphed into a whole segment of the population who are woefully misinformed about reality. Usually, this takes the form of “I read a lot” or I don’t trust mainstream media etc. A modicum of fact checking usually satisfies me that said people are nuts. What I don’t understand is when the anti-vaxxer gets covid, has to be hospitalized and then wants modern medicine and the nefarious pharma folks to save their lives, though they believe that all doctors are getting kickbacks. It is sort of pathetic is the best I can do. Maybe shake your head and ignore.

Usually, you will get a panel of 50 people to seat 12 jurors.  The process is usually complete within an hour or two maximum. In that time, if a person is not a felon or focused on avoiding jury duty, you don’t get much of a chance to figure out what people believe about the world, how they might look at your client, or evaluate a doctor or police officer’s testimony. Jury selection is very slap dash for routine run of the mill cases. So, you end up with a mishmash of people about whom you know very little. You learn enough to get rid of people who should be gotten rid of but the sleepers or silent people or those who harbor bizarre views of the world but live unassuming lives are impossible to pick out, unless you are just striking angry looking white men which is not allowed. I have heard proposals to question jurors about their bumper stickers, beliefs about January 6, fox news, internet habits etc. Never have I ever seen any of these questions posed to an actual juror. The judges just don’t want to be bothered with delving into a juror’s character.